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Senators are shown hundreds of unreleased photographs and videos showing mostly sexual abuse of prisoners at Abu Ghraib and sex among US soldiers that appears to be consensual. The pictures show forced sodomy; Pfc. Lynndie England having sex with other US soldiers, sometimes in front of prisoners; prisoners cowering in front of attack dogs; Iraqi women being forced to expose their breasts; naked prisoners tied up together; prisoners being forced to masturbate; and a prisoner repeatedly smashing his head against a wall. Oregon Sen. Ron Wyden says afterwards: “I expected that these pictures would be very hard on the stomach lining and it was significantly worse than anything that I had anticipated.… Take the worse case and multiply it several times over.” (Breaking News (Ireland) 5/13/2004)
CIA Director Porter Goss, known for being dogmatically loyal to the White House (see September 25, 2003 and November-December 2004), responds to the recent spate of leaked CIA memos (see September 16, 2004, September 28, 2004, and October 4, 2004) by issuing a memo reminding agency staff that they should “scrupulously honor our secrecy oath.” The memo is leaked to the press the next day. Goss says, “Intelligence-related issues have become the fodder of partisan food fights and turf-power skirmishes.” Goss warns that agency officials must publicly support Bush administration policies: “As agency employees we do not identify with, support or champion opposition to the administration or its policies,” Goss writes. His intention is, he writes, “to clarify beyond doubt the rules of the road.” Goss’s words may indicate that CIA employees must conform with administration policies and goals, but he also writes, “We provide the intelligence as we see it—and let the facts alone speak to the policymaker.” Many critics of the agency and its leadership say that Goss’s memo is part of his attempt to squelch dissent within the agency’s ranks. “If Goss is asking people to color their views and be a team player, that’s not what people at CIA signed up for,” says a former intelligence official. Ron Wyden (D-OR), a member of the Senate Intelligence Committee, says that “on issue after issue, there’s a real question about whether the country and the Congress are going to get an unvarnished picture of our intelligence situation at a critical time.” (Jehl 11/17/2004; Roberts 2008, pp. 153)
Former NSA Director Michael Hayden, testifying as part of his nomination hearings to head the CIA, denies that the NSA has engaged in illegal surveillance operations against US citizens, after allegations by former Qwest CEO Joe Nacchio that he met with NSA officials well before the 9/11 attacks and discussed such a surveillance program. Nacchio refused to cooperate with the NSA, and he says that his telecommunications firm suffered retaliation as a result of his refusal (see February 27, 2001). Other telecom firms such as BellSouth, AT&T, and Verizon did cooperate (see February 2001 and Beyond). Court documents show that Nacchio balked at cooperating with the NSA after learning that the agency wanted Qwest’s phone records of the firm’s customers, but had no warrants or approval from the Foreign Intelligence Surveillance Court, which oversees all US intelligence agencies’ surveillance operations.
Denial - Hayden denies that the NSA has broken the law, and that it has complied with its oversight responsibilities. “Everything that the agency has done has been lawful,” he says. “It’s been briefed to the appropriate members of Congress. The only purpose of the agency’s activities is to preserve the security and the liberty of the American people. And I think we’ve done that.” Nacchio says the NSA continued to make similar requests of Qwest until he left the firm in June 2002. The court documents are part of Nacchio’s trial on numerous counts of insider trading.
Political Reaction - The White House and Senate Republicans are generally supportive of Hayden while Senate Democrats have mixed feelings. One who questions Hayden’s credibility is Ron Wyden (D-OR) of the Senate Intelligence Committee, who says, “The American people have got to know that when the person who heads the CIA makes a statement that they are getting the full picture.” In contrast, Kit Bond (R-MO), a member of the select panel allowed access to classified information on the warrantless surveillance program, says, “The president’s program uses information collected from phone companies,” but only the telephone number called and the caller’s number. Conversations, says Bond, are not recorded. President Bush says that the NSA wiretapping program is not “mining or trolling through the personal lives of millions of innocent Americans.”
Scope of Program - A senior government official given permission to speak anonymously about the program says that while the NSA has access to records of almost all domestic phone calls, the records are used solely to trace regular contacts of “known bad guys.” The NSA needs access to the entirety of citizens’ phone communications, the official says, but it isn’t “interested in the vast majority of them.” (Associated Press 5/12/2006; O'Neil and Lichtblau 5/12/2006; CBS News 5/12/2006)
A bipartisan group of senators headed by Ron Wyden (D-OR) and Kit Bond (R-MI) campaign to force the CIA to release the executive summary of a report by its inspector general about some aspects of its performance before 9/11. Wyden says, “It’s amazing the efforts the administration is going to stonewall this,” adding that he is considering linking acceptance of President Bush’s nominations for national security positions to the report’s release. Wyden also says that the report is not being kept secret for national security reasons, but merely to protect individuals from embarrassment. Apparently, some of the officials criticized in the report are still in “senior government positions.” The idea of releasing the executive summary is twice approved by the Senate before being made law in August 2007 (see August 8, 2007). (Associated Press 5/18/2007)
Four senators—Russell Feingold (D-WI), Dianne Feinstein (D-CA), Chuck Hagel (R-NE), and Ron Wyden (D-OR)—send letters objecting to the CIA’s use of waterboarding and other extreme methods of interrogation against terrorism suspects after receiving a briefing from CIA Director Michael Hayden on the subject. Though lawmakers are bound by secrecy oaths from revealing the nature of the classified briefings on secret interrogation subjects, in November 2007, Feingold will breach that oath, complaining that the Bush administration is mischaracterizing the level of Congressional support for what administration officials call “enhanced interrogation tactics” (see November 7, 2007). (Warrick and Eggen 12/9/2007)
Senator Ron Wyden (D-OR) writes to the Justice Department’s acting head of the Office of Legal Counsel (OLC), Steven Bradbury, asking for clarification of the Bush administration’s stance on the Geneva Conventions as they apply to the interrogation of detainees. Wyden notes that President Bush has recently affirmed that the US would observe the conventions’ standards on humane treatment of all prisoners, and asks precisely how the OLC defines the concept of “humane treatment.” Wyden wants to know what circumstances definitions of that term might vary under, and asks the same questions of the term “cruel, inhuman, and degrading treatment.” The principal deputy assistant attorney general, Brian Benczkowski, will answer Wyden’s letter on September 27, 2007 (see September 27, 2007). (US Senate 8/8/2007 )
Congressional legislation forces the CIA to declassify and release the executive summary of its inspector general’s report into some of its pre-9/11 failings. The legislation follows a long campaign by senators (see Spring-Summer 2007) and victims’ relatives (see June 18, 2007), and orders the CIA to release the summary within 30 days, together with a classified annex for Congress explaining the report’s redactions. The report was completed in 2004 (see June-November 2004), and rewritten in 2005 (see January 7, 2005), but was then not released (see October 10, 2005). Senator Ron Wyden (D-OR) says, “All I can say is that it’s an extraordinarily important, independent assessment, written with a specific purpose to learn how we can improve our security.” Senator Kit Bond (R-MI) points out that “this should have been declassified a long time ago.” (Fessenden 8/8/2007) The report is released two weeks later (see August 21, 2007).
The Justice Department’s Brian Benczkowski answers Senator Ron Wyden (D-OR)‘s request for clarification of the terms “humane treatment” and “cruel, inhuman, and degrading treatment” as it applies to suspected terrorists in US custody. Benczkowski writes that the government uses the Military Commissions Act (MCA) (see October 17, 2006) and a recent executive order, Order #13440 (authorizing the continued use of harsh interrogation methods—see July 20, 2007) to determine how the US will comply with the Geneva Conventions. Benczkowski writes that Order 13440 and the Army Field Manual, among other guidelines, ensure that any interrogations carried out by US personnel comply with Geneva.
Geneva Does Not Clearly Define 'Humane Treatment' - He goes on to note that the term “humane treatment” is not directly defined by Geneva, but “rather provides content by enumerating the specific prohibitions that would contravene that standard.” Common Article 3, the statute in the Conventions that specifically addresses the treatment of prisoners, expressly prohibits “violence” including “murder of all kinds, mutilation, cruel treatment and torture.” It also prohibits “outrages upon personal dignity,” including “humiliating and degrading treatment.” Benczkowski writes that there is no accepted international standard as to what is defined as “humane treatment” and what is not, outside of the basic provisions of food, water, clothing, shelter, and protection from extremes of temperature. Given this standard, he writes, the Bush administration does ensure that “all detainees within the CIA program shall be treated humanely.”
Defined by Circumstances - He goes on to note that Geneva seems to grant some leeway for interpretation as to what complies with its standards, particularly in the area of “outrages upon personal dignity.” Citing a previous international tribunal, he writes, “To rise to the level of an outrage, the conduct must be ‘animated by contempt for the human dignity of another person’ and it must be so deplorable that the reasonable observer would recognize it as something that must be universally condemned.” None of the methods used by US interrogators contravenes any of these standards as the Justice Department interprets them, Benczkowski concludes. As for the question of “cruel, inhuman and degrading treatment,” or as he abbreviates it, “CIDT,” Benczkowski writes that such treatment is prohibited by the Fifth, Eighth, and Fourteenth Amendments to the US Constitution. However, circumstances determine what is and is not CIDT, he writes; even “in evaluating whether a homicide violates Common Article 3, it would be necessary to consider the circumstances surrounding the act.” The CIA interrogation program fully complies with Common Article 3, various statutes and Supreme Court decisions, and the Bill of Rights, Benczkowski asserts. (US Department of Justice 9/27/2007 )
Senator Ron Wyden (D-OR) replies to a letter from the Justice Department that claims the CIA’s detainee interrogation program is fully compliant with the Geneva Conventions and with US and international law (see September 27, 2007). Wyden challenges the legal rationale for the claims, noting that the cases cited do not directly apply to the question of whether the definitions of “humane treatment” and “cruel, inhuman, and degrading treatment” can vary depending on the identity of the detainee and the circumstances surrounding his interrogation. He also challenges the Justice Department’s rather narrow interpretation of the protections afforded by the Eighth Amendment and the Detainee Treatment Act (see December 30, 2005). (US Senate 3/6/2008 )
Justice Department attorney Brian Benczkowski replies to a follow-up letter from Senator Ron Wyden (D-OR), who is challenging the department’s claims that the CIA detainee interrogation program is fully compliant with US and international law (see December 20, 2007). Much of Benczkowski’s letter is a reiteration of points made in an earlier letter (see September 27, 2007), even citing the same legal cases that Wyden challenged as not directly relevant to the Justice Department’s arguments. Benczkowski reiterates that the definitions of “humane treatment” and “cruel, inhuman, and degrading treatment” are flexible, in the department’s view, and can change drastically depending on the identity of the detainee and the circumstances surrounding his interrogation. The standards of compliance are also mitigated by the “nature and importance of the government interest,” he claims, giving as an example the possibility of abrogating a detainee’s fundamental rights under the Geneva Conventions and other statutes in order to force information about an impending terrorist attack from him. Benczkowski reiterates that the Eighth Amendment only applies to prisoners after they have been convicted of a crime; hence, detainees never tried or charged for crimes have no rights under that amendment. It is apparent that Benczkowski considers the discussion closed; he concludes his letter with the statement, “Please do not hesitate to contact the Department if we can be of assistance in other matters.” (US Department of Justice 3/6/2008 )
In recent letters to Congress, the Justice Department has suggested that the Geneva Conventions’ ban on “outrages against personal dignity” does not automatically apply to terrorism suspects in the custody of US intelligence agencies (see August 8, 2007 and March 6, 2008). The letters are just now being made public, with Senator Ron Wyden (D-OR) making them available to the Washington Post. Last year, Wyden asked the Justice Department to provide an explanation for President Bush’s 2007 executive order authorizing the CIA to continue using so-called “harsh interrogation techniques” on detainees (see July 20, 2007) even as Bush claimed US interrogators would always observe Geneva restrictions. The department responded with several letters that reasserted the Bush administration’s contentions that it is not bound by domestic law or international treaties in deciding how the Geneva Conventions apply to the interrogation of terror suspects. (Warrick 4/27/2008; Voice of America 4/27/2008)
'Humane Treatment' Subject to Interpretation, Circumstances - The Justice Department acknowledges that the US is bound by Common Article 3 of the Conventions, which requires that a signatory nation treat its detainees humanely; however, the letters say that the definition of “humane treatment” can be interpreted in a variety of ways, and can depend on the detainee’s identity and the importance of the information he possesses. In a letter written to a Democrat on the Senate Intelligence Committee, the principal deputy assistant attorney general, Brian Benczkowski, wrote, “Some prohibitions… such as the prohibition on ‘outrages against personal dignity,’ do invite the consideration of the circumstances surrounding the action.” The government can weigh “the identity and information possessed by a detainee” in deciding whether to use harsh and potentially inhumane techniques, according to Benczkowski. A suspect with information about a future attack, for example, could and possibly would be subjected to extreme treatment, he says, and notes that a violation of the Geneva Conventions would only occur if the interrogator’s conduct “shocks the conscience” because it is out of proportion to “the government interest involved.” He continued, “The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act.” Furthermore, any action defined as an “outrage upon personal dignity” must be deliberate and involve an “intent to humiliate and degrade.”
Government Arguments 'Appalling,' Says Senator - A spokeswoman for Wyden, Jennifer Hoelzer, says that the administration’s contention that the Geneva Conventions can be selectively applied is “stunning.” Hoelzer says: “The Geneva Convention in most cases is the only shield that Americans have when they are captured overseas. And for the president to say that it is acceptable to interpret Geneva on a sliding scale means that he thinks that it is acceptable for other countries to do the same. Senator Wyden—and I believe any other reasonable individual—finds that argument appalling.” Law professor Scott Silliman, who teaches national security law at Duke University, agrees with Wyden’s assessments. He notes, “What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense.” An anonymous Justice Department official disagrees. “I certainly don’t want to suggest that if there’s a good purpose you can head off and humiliate and degrade someone. The fact that you are doing something for a legitimate security purpose would be relevant, but there are things that a reasonable observer would deem to be outrageous.” However, he adds, “there are certainly things that can be insulting that would not raise to the level of an outrage on personal dignity.” Wyden states that if the US is subjective in deciding what is and isn’t compliant under Geneva, then other countries will do the same to US prisoners in their custody. “The cumulative effect in my interpretation is to put American troops at risk,” he says. (Warrick 4/27/2008; Mazzetti 4/27/2008) He adds that the letters help make the case for a law that explicitly puts the CIA interrogations under the same restrictions as the military, or another set of clear standards. (Perez and Gorman 4/27/2008)
'Full Compliance' - The CIA refuses to comment on Benczkowski’s memo, but spokesman Mark Mansfield says the CIA’s detainee program “has been and continues to be in full compliance with the laws of our country.” He adds, “The program has disrupted terrorist plots and has saved lives.” (Warrick 4/27/2008; Mazzetti 4/27/2008)
The response by media and public officials to the announcement of a preliminary investigation by the Justice Department into whether crimes were committed in the course of a small number of detention and interrogation cases by the CIA (see August 24, 2009) is mixed. The investigation is headed by special prosecutor John Durham. Reporter Michael Isikoff says that it will be “difficult to bring cases against agency operatives when you have the [former] attorney general of the United States [John Ashcroft] saying repetitive use of waterboarding is okay with him. He has no problem with it. The Justice Department has no problem with it—which is why some people say if we’re not going to have criminal investigations at the very top, the leadership that authorized these programs, at least have full disclosure so the American public can know the full story of what happened.” Senator Ron Wyden (D-OR) criticizes the potential focus on interrogators and says the inquiry should focus on former Bush administration officials and Justice Department lawyers; he says the investigation could echo the Abu Ghraib investigation, where “lower ranking troops who committed abuses were hung out to dry.” Representative Peter Hoekstra (R-MI), the ranking Republican on the House Intelligence Committee, says the Justice Department inquiry risks disrupting current counterterrorism operations, and claims that abuse charges have already been “exhaustively reviewed.” (Mazzetti and Shane 8/24/2009; MSNBC 8/25/2009)
Lack of Accountability? - Joanne Mariner, the terrorism and counterterrorism program director at Human Rights Watch, says: “It’s heartening that the attorney general has opened a preliminary investigation of these crimes, but it’s crucial that its scope include senior officials who authorized torture. Lower-level CIA operatives—even if using so-called ‘unauthorized’ techniques—may still have relied on the letter or the spirit of high-level authorizations.” Human Rights Watch warns that if the investigation focuses solely on so-called “rogue” interrogators who acted without official authorization, but fails to investigate senior officials with responsibility for the interrogation program, it will lack credibility. The organization writes, “Such an approach would validate the Bush-era Justice Department memoranda that authorized torture.” It calls the US’s record on accountability for detainee abuse “abysmal.” (Human Rights Watch 8/24/2009)
Focusing on 'Low-Level Operatives'? - The American Civil Liberties Union’s Jameel Jaffer later says that Durham’s investigation seems to be far too narrow in scope, focusing solely on CIA interrogators and ignoring Bush administration officials who authorized torture and other abusive actions. (Roth 8/31/2009) This position is echoed by the Center for Constitutional Rights, which states: “Responsibility for the torture program cannot be laid at the feet of a few low-level operatives. Some agents in the field may have gone further than the limits so ghoulishly laid out by the lawyers who twisted the law to create legal cover for the program, but it is the lawyers and the officials who oversaw and approved the program who must be investigated.” The center demands the appointment of “an independent special prosecutor with a full mandate to investigate those responsible for torture and war crimes, especially the high ranking officials who designed, justified, and orchestrated the torture program.” Another organization, Physicians for Human Rights, says that it “urges the administration to pursue any investigation up the chain of command to those officials who authorized and supervised the use of illegal techniques.” (Roth 8/24/2009) Several Democrats, including Senators Russ Feingold (D-WI) and Judiciary Committee chair Patrick Leahy (D-VT), and two members of the House Judiciary Committee, Jerrold Nadler (D-NY) and John Conyers (D-MI), issue statements urging the investigation to go beyond looking into the actions of CIA interrogators, and investigate the officials who authorized those actions. (Roth 8/24/2009)
Max Baucus (D-MT), chairman of the Senate Finance Committee, makes several revisions to the “final” draft of the Chairman’s Mark of the America’s Healthy Future Act (AHFA, the name for health care reform legislation—see September 16-17, 2009). The “chairman’s mark” is a recommendation by a committee or subcommittee chair of measures to be considered in a markup, and is usually drafted as a bill. Baucus says in a statement: “The modifications focus largely on making care more affordable for low and middle income Americans by increasing the Health Care Affordability Tax Credit, lowering the penalties for people who fail to meet the individual requirement to have health insurance, and increasing the High Cost Insurance Excise Tax threshold for people whose basic health care is more expensive… and effectively slows the growth of skyrocketing health care costs.… This modification incorporates important ideas from my colleagues on both sides of the aisle.” According to Baucus, AHFA as it now stands will make it easier for families and small businesses to buy health care coverage, ensure Americans can choose to keep the health care coverage they have if they like, and slow the growth of health care costs over time. “It will bar insurance companies from discriminating against people based on health status, denying coverage because of pre-existing conditions, or imposing annual caps or lifetime limits on coverage.” Baucus continues to assert that AHFA will not add to the federal deficit. Some of the new provisions include:
Lowering the amount that insurance companies can vary premiums based on age, ensuring that these companies cannot charge elderly clients far more than younger ones. The provision was first submitted by Senators John Kerry (D-MA) and Ron Wyden (D-OR).
Providing $5 billion in additional assistance to small businesses attempting to provide coverage for their workers. The provision was first submitted by Senators Kerry and Debbie Stabenow (D-MI).
Including more senior citizens in the Medicare Advantage program.
Making prescription drugs more affordable for senior citizens by reducing co-payments. This provision was first submitted by Senators John D. Rockefeller (D-WV), Jeff Bingaman (D-NM), and Ben Nelson (D-NE).
Improving Medicare beneficiary access to bone density tests, a provision first submitted by Senator Blanche Lincoln (D-AR).
Creation of a three-year Medicare Hospice Concurrent Care (HCC) demonstration program that would provide Medicare patients eligible for hospice care with all other Medicare-covered services during the same period of time. This provision was first submitted by Senator Wyden.
Improving access to Home and Community Based Services (HCBS) for low income individuals in Medicaid who are in need of long-term care, a provision first submitted by Senator Kerry.
Creating nursing home alternatives for patients in need of long-term care, a provision first submitted by Senator Maria Cantwell (D-WA).
Provide alternatives to nursing home care for disabled individuals on Medicaid, a provision first submitted by Senator Charles Schumer (D-NY).
Improving access to mental health care for Medicaid patients, a provision first submitted by Senator Olympia Snowe (R-ME).
Financial assistance for “high-need” states having difficulty paying for their Medicaid obligations, and use of surplus Medicaid funds to improve the program.
Create an exemption to encourage health care beneficiaries to use generic prescription drugs by waiving co-payments, a provision first submitted by Senator Stabenow.
Remove the mandate that would require states to cover all prescription drugs for Medicaid beneficiaries.
Direct the secretary of health and human services to implement programs to reduce waste in the way drugs are dispensed to seniors in long term care facilities. (Senior Journal 9/22/2009; New York Times 9/22/2009; The Capitol (.net) 2011)
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