The Pinochet Gambit

For those of us born and raised in Pittsburgh, Saturday, March 28, 2009, was a dark day. The chaps from the University of Pittsburgh, after coming so far and rising so high, were eliminated from the national basketball tournament by an amazing shot by a young lad from Villanova in the final half-second of the game. Sure, the Steelers won the Super Bowl – but that somehow seems long ago, and the Penguins are unexciting (and hockey frankly too Canadian) and now comes the long baseball season. The Pirates are entering their third decade of the obscurity that comes from small-market, low-budget, and always-in-the-cellar inspired-but-hapless baseball. At least they’re photogenic.


But the Pitts loss… it was a dark day. You wanted to cry in your beer – Iron City, of course. But then, of course, some people had a darker day.


You know how it is. You do things you know you shouldn’t do, and you bluster your way through, saying that, for one, you meant to do just that, and then declare that what you did wasn’t bad or wrong or illegal at all – and damn it, you can prove that – and then you start calling anyone who thinks what you did was the wrong thing to do a girly-man coward and obviously someone who hates motherhood, apple pie and the American way. You say they love the bad guys and want the bad guys to succeed, or maybe they’re really French.


But even as you wrap yourself tighter in the flag and work at looking noble and bold, you know it really is all bluster. Or maybe you don’t – people buy their own bullshit all the time. It’s how you live with yourself.


But sometimes it gets hard, because no one acts alone, and others sometimes snap out of it:


A former State Department lawyer tells The Associated Press that the Bush administration panicked after 9/11 and tortured prisoners.


Former President George W. Bush denied anyone was tortured. But Vijay Padmanabhan is at least the second insider to publicly describe as torture the so-called “enhanced interrogation techniques” used by the U.S.


Padmanabhan was the department’s chief counsel on Guantanamo litigation. He says it was “foolish” for the Bush administration to declare that detainees were beyond the reach of U.S. and international laws and the Geneva Conventions.


He told the AP Friday that “Guantanamo was one of the worst overreactions of the Bush administration.”


This followed Lawrence B. Wilkerson, Colin Powell’s chief-of-staff, saying many detainees locked up in the prison camp were innocent – and we knew it, but we kept them locked up for six and seven years. Actually, that turned into the plan – they could provide information for a “mosaic” of intelligence, so we tortured them, and some died, but anything that was said could be put in a database and cross-referenced six ways from Sunday and we might learn something useful – “It did not matter if a detainee were innocent. Indeed, because he lived in Afghanistan and was captured on or near the battle area, he must know something of importance.” We were collecting dots. We’d connect them if we could. No one knows if this worked.


But this is interesting:


Wilkerson, a retired Army colonel, said vetting on the battlefield during the early stages of U.S. military operations in Afghanistan was incompetent with no meaningful attempt to discriminate “who we were transporting to Cuba for detention and interrogation.”


Former Defense Secretary Donald Rumsfeld and Vice President Dick Cheney fought efforts to address the situation, Wilkerson said, because “to have admitted this reality would have been a black mark on their leadership.”


Wilkerson told the AP in a telephone interview that many detainees “clearly had no connection to al Qaeda and the Taliban and were in the wrong place at the wrong time. Pakistanis turned many over for $5,000 a head.”


Wilkerson estimates that, of all the Gitmo detainees, two dozen are terrorists – that was about it. The rest, the other 776, who were tortured, some of whom were driven to suicide, some of whom died, were useful data points. Once you get into all this, and say it’s right and wonderful, you do tend to bullshit yourself – post facto planning, as it were. Hey, it was all part of a clever plan – really, it was.


And then, as sometimes happens, you open the New York Times and it all comes crashing down:


A high-level Spanish court has taken the first steps toward opening a criminal investigation against six former Bush administration officials, including former Attorney General Alberto R. Gonzales, on whether they violated international law by providing a legalistic framework to justify the use of torture of American prisoners at Guantanamo Bay, Cuba, an official close to the case said.


The case was sent to the prosecutor’s office for review by Baltasar Garzon, the crusading investigative judge who indicted the former Chilean dictator Augusto Pinochet. The official said that it was “highly probable” that the case would go forward and could lead to arrest warrants.


David Dayen (“dday”) says this:


I would call this a big deal. As the report notes, Garzon indicted Augusto Pinochet, which led to his arrest and extradition. This would not immediately lead to arrest and trial, but it would certainly confine the six officials to the United States and increase the pressure for stateside investigations. Spanish courts have “universal jurisdiction” over human rights abuses, under a 1985 law, particularly if they can be linked to Spain.


That’s where this gets interesting:


In the case against the former Bush administration officials, last week Judge Garzon linked it to an earlier case in which he indicted five former Guantanamo Bay prisoners who were citizens or residents of Spain. The Spanish Supreme Court had overturned a conviction of one of them, saying that Guantanamo was “a legal limbo” and no evidence obtained under torture could be valid in any of the country’s courts.


The complaint was filed by a Spanish human rights group, the Association for the Dignity of Prisoners, to the National Court, which assigned the case to Judge Garzon. After the complaint is reviewed by the prosecutor, a criminal investigation would be likely to begin, the official said. If the case proceeds, arrest warrants could still be months away.


The 98-page complaint, a copy of which was obtained by The New York Times, was prepared by Spanish lawyers who have also relied on legal experts in the United States and Europe. It bases its case on the 1984 Convention Against Torture, which is binding on 145 countries including the United States.


Well, we signed that – twice, in 1988 and 1994. Drat. And now the six officials in the inquiry are former Attorney General Alberto Gonzales; John Yoo, the Justice Department attorney who authored the now famous “torture memo”; Jay Bybee, Yoo’s superior at the Office of Legal Counsel, also involved in the creation of those torture memos; David Addington, Cheney’s chief of staff and legal adviser (after Libby went to jail); Douglas Feith, the former undersecretary of defense for policy; and William Haynes, the legal counsel at the Department of Defense. No trips to see the running of the bulls at Pamplona for them.


As for what these six are up to now, see this:


John Yoo is visiting professor of Law at the Chapman University School of Law in Orange County, CA. He is on leave from the University of California-Berkeley.


William Haynes II is Chief Corporate Counsel at the Chevron Corporate Office in San Ramon, CA.


Jay Bybee is a federal judge on the United States Court of Appeals for the Ninth Circuit.


Douglas Feith taught at Georgetown University before becoming the Director of the Center for National Security Strategies and a Senior Fellow at the Hudson Institute


As far as I know (and correct me if I am wrong) David Addington and Alberto Gonzales are looking for work.


Somehow the Pitt loss seems like a minor matter. Maybe David Addington and Alberto Gonzales could join the coaching staff. Work is work.


David Dayen has further comments here:


The amount of material connecting these six to the creation, authorization and direction of state-sanctioned illegal torture, based on perverse and discredited reasoning, is voluminous, and given the record of Garzon, I would imagine this will lead to arrest warrants.


This story shows once again the growing global unease with the implicit policy of the United States to conveniently forget the torture and other abuses of the Bush regime.


Yes, we are considering something like a Truth and Reconciliation Commission – find out what really happened and what laws were broken, but there would be no threat of prosecution, except for perjury. At least that’s the idea – war crimes may have been committed, but prosecuting those crimes would tear the country apart. You don’t want to go there. Even Obama says we must just move forward, and worry about the here and now – he’s closing Guantanamo and ending anything that seems like torture. That should be enough.


But Dayen points to a BBC item – in the UK police are investigating whether British intelligence officers knew about and agreed to prolong the torture of Binyam Mohamed, a British citizen we just released from Guantanamo. British intelligence officers are supposed to follow the law. When they don’t, they get in trouble. How odd, but Dayen recommends Glenn Greenwald – a discussion of how other countries have not abandoned their commitment to the rule of law.


And Dayen recommends the Guardian analysis – the British Government was, in essence, forced into the criminal investigation once government lawyers “referred evidence of possible criminal conduct by MI5 officers to home secretary Jacqui Smith and she passed it on to the attorney general.”


We may think that’s an odd way to run a country. Dayen says the Brits don’t, as “in a country that lives under what is called the ‘rule of law,’ credible evidence of serious criminality makes such an investigation, as The Guardian put it, ‘inevitable.'” How quaint, as Alberto Gonzales would put it.


But then it seems British Prime Minister Gordon Brown “has clearly tried desperately to avoid any such investigation.” Of course the Washington Post reported Brown got jammed into corner and was forced to say what he had to say – “I have always made clear that when serious allegations are made they have got to be investigated.”




Wouldn’t it be nice if our government leaders could make a similar, extremely uncontroversial statement – credible allegations of lawbreaking by our highest political leaders must be investigated and, if warranted, prosecuted? In a country with a minimally healthy political culture, that ought to be about as uncontroversial as it gets. Instead, what we have are political leaders and media stars virtually across the board spouting lawless Orwellian phrases about being “more interested in looking forward than in looking backwards” and not wanting to “criminalize public service.” These apologist maneuvers continue despite the fact that, as even conservative Washington Post columnist Anne Applebaum recently acknowledged in light of newly disclosed detailed ICRC Reports, “that crimes were committed is no longer in doubt.”


The Ann Applebaum item on the International Committee of the Red Cross (ICRC) finding is here. Crimes were committed, as authorized.


But we can hardly claim that Spain is acting irresponsibly – beyond its own borders, violating the sovereignty of other nations, being silly – as we screwed up. We invoked the same right to prosecute foreign leaders for torture last year:


This year for the first time, the United States used a law that allows for the prosecution in the United States of torture in other countries. On Jan. 10, a Miami court sentenced Chuckie Taylor, the son of the former Liberian president, to 97 years in a federal prison for torture, even though the crimes were committed in Liberia.


Last October, when the Miami court handed down the conviction, Attorney General Michael B. Mukasey applauded the ruling and said: “This is the first case in the United States to charge an individual with criminal torture. I hope this case will serve as a model to future prosecutions of this type.”


Oops. And Andrew Sullivan adds more:


More ominous for Yoo and Addington et al is that the judge involved is the one who nailed Pinochet. That dude doesn’t mess around. Spain’s action means these war criminals are vulnerable in twenty-four European countries for arrest and prosecution for enabling torture. It’s a start.


That’s right – in twenty-four European countries. It might be best to stay home, maybe take in a baseball game – see the Pittsburgh Pirates, sip an Iron City, or two, or more.


The AP story on all this cites Gonzalo Boye, one of the lawyers who brought the charges, and he is blunt:


“When you bring a case like this you can’t stop to make political judgments as to how it might affect bilateral relations between countries,” he told the AP.” It’s too important for that.” Boye noted that the case was brought not against interrogators who might have committed crimes but by the lawyers and other high-placed officials who gave cover for their actions.


“Our case is a denunciation of lawyers, by lawyers, because we don’t believe our profession should be used to help commit such barbarities,” he said.


Another lawyer with detailed knowledge of the case told the AP that Garzon’s decision to consider the charges was “a significant first step.” The lawyer spoke on condition of anonymity because he was not authorized to talk to the media.


But if you go after the lawyers, because they disgraced their profession, you’re just going to have to involve their clients. Someone requested a legal justification, and for a reason. You know the answer lawyers give to who is right and who is wrong on any thorny legal issue. Who is paying me?


And does this mean the AMA will go after the doctors who advised how to inflict the most possible, sustained pain short of death, and then treated those gravely injured by what was done to them so more of the same could be done again and again? And will the American Psychological Association go after the psychiatrists and psychologists who advised how to disassemble a prisoner’s sense of reality and self but keep them just this side of total personality collapse and full-blown permanent madness? You might want to deal with who requested those services. This may come to that.


Of course, on the right, William A. Jacobson here reviews all those who scoff at this – the many who are offering John Yoo tickets to visit any of those twenty-four European countries so Yoo can go see the sights and drink the wine and have a fine old time. They’d not dare do anything. We’d wipe them off the map. And Jacobson adds this:


When you lower the bar for the claim of European universal jurisdiction, you are putting your own heroes at risk. Obama has ordered the bombing of Taliban and al-Qaeda hideouts in Pakistan, knowing that innocent civilians would be killed in the process; and there surely will be similar Obama administration actions which, when judged from an anti-American perspective and with the benefit of 20/20 hindsight, may be deemed “illegal” in some European country.


So don’t send the airfare money for Yoo, you may need it for Obama.


We’ll cross that bridge later. Right now, we have a problem.


About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
This entry was posted in Augusto Pinochet and Bush, John Yoo, Spanish Investigation of Bush Lawyers, Torture, Torture Memo, Truth Commissions, War Crimes. Bookmark the permalink.

4 Responses to The Pinochet Gambit

  1. Rick (from Atlanta) says:

    I expected that you’d get into what will happen if Obama allows the extradition of these guys — and how his agenda will come to a screeching halt by the resulting political chaos, not to mention the possible growth of domestic terror groups aimed at this traitorous president and his sniveling minions, and maybe even another Oklahoma City-type bombing or two. But I guess there’ll be plenty of time for that discussion later.

    It’s a dilemma, like “Sophie’s Choice”: Do we sacrifice our future for the sake of doing justice to our past? Or vice versa? Heads, we lose; tails, we lose.

    This could get very interesting, but maybe not in a good way.


  2. Becky (from DC) says:

    First, I’d like to put in a good word for psychiatrists and, yes, lawyers. The psychiatrists’ professional association declared it a violation of its ethical standards for a psychiatrist to assist in the torture of prisoners, including at Guantanamo. Most psychiatrists complied with this rule. The psychologists’ association refused adopt a parallel statement, and many psychologists continued to assist in interrogations.

    As for lawyers, it is a violation of professional ethics to assist a client in violating the law. Thus, there have been serious proposals for bringing disbarment proceeding against Yoo and the others.

    More significantly, one reason Guantanamo was finally exposed to the world for what it is is that a number of the nation’s leading lawyers devoted thousands of hours of their time, pro bono, and many of their firms’ dollars (mostly on security-cleared translators and travel), to combat what they recognized as an attack by the Bush administration on the constitution. This work was undertaken by lawyers of all political stripes. It was not publicized only because firms did not want to alienate their paying clients. It turns out that the legal establishment in the United States believes in the rule of law.

    It’s important to add that much of the credit for exposing Guantanamo should also go to some dedicated journalists, who overcame both government obstruction and resistance from editors who wanted more popular stories.

    Finally, Wilkerson’s comments about the numbers of innocent prisoners at Guantanamo, and the absurdity and injustice of the “mosaic” intelligence strategy advanced for continuing to hold them, are fully consistent with my observations as counsel for 8 prisoners from Afghanistan. It is important to emphasize that, even today, many innocent men remain imprisoned at Guantanamo.


  3. Pingback: Les Jeux Sont Faits « Just Above Sunset

  4. cubanbob says:

    The mistake Bush made was a simple one: he lawyered up what should have never been a legal issue to begin with. The scum caught on the battlefield should have been declared nothing more than pirates and without any rights at all and subject to summary execution after suitable interrogation which includes torture if needed. Not in a uniform of a recognized nation state, no Geneva Convention rights for you. Just treat them as pirates of old which what they are and nothing more.

    As for the Spanish it should be the official stated policy of the United States that what the Spanish prosecutor is attempting will be considered a hostile act by the Spanish government including if need be the freezing of all Spanish property in the US and the banning of any other countries firms and nationals who do business in Spain from doing business in the US.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s