Dan Froomkin: Fool Me Over and Over and Over Again

by Dan Froomkin, Niemanwatchdog.org

Our elite media has been repeatedly suckered into trumpeting glaringly unsupported assertions about the number of Guantanamo detainees that have “returned” to the battlefield. This was quite a week for it.

The most blatant and distressing previous object lesson came early last summer, when New York Times Public Editor Clark Hoyt appropriately spanked reporter Elisabeth Bumiller and her editors for a top-of-the-front-page story in late May that was “seriously flawed and greatly overplayed.” Hoyt wrote that the story, which appeared under the headline 1 in 7 Detainees Rejoined Jihad, Pentagon Finds “demonstrated again the dangers when editors run with exclusive leaked material in politically charged circumstances and fail to push back skeptically.”

Entirely by coincidence, of course, Bumiller’s article, based on a secret Pentagon report, provided a handy talking point for former vice president Cheney later that day, when he snarlingly attempted to rebut President Obama’s major address on national security speech later.

Bumiller’s reporting failure also earned her an editor’s note appended to her story, and a scolding op-ed.

And yet, amazingly enough, eight months later – now in the midst of attempts by Gitmo dead-enders to turn the aborted Exploding Christmas Underpants plot into a political cudgel – Bumiller is at it again, though this time chasing Bloomberg, et al., rather than leading the pack.

This time it’s one in five former detainees who have “engaged in, or is suspected of engaging in, terrorism or militant activity.” And here’s the sum total of what Bumiller learned from her previous experience:

Civil liberties and human rights groups sharply criticized the May 2009 report and earlier Pentagon reports during the Bush administration concluding that substantial numbers of former Guantánamo detainees had engaged in terrorism or militant activity. The groups said that the information was too vague to be credible and amounted to propaganda in favor of keeping the prison open.

But it’s not just that the Pentagon’s assertions are suspicious on their face. As it happens, a series of studies directed by Seton Hall Law Professor Mark Denbeaux has been effectively picking them apart for years. (A response to the latest spate of stories will be coming out on Monday.)

Among the other (little, inconsequential) things the Seton Hall reports have pointed out is that the Pentagon, in all the times it has leaked on the topic, has nevertheless consistently refused to provide names that would allow anyone to actually verify most of its claims. There’s the issue of how they define “returning to the fight” – it apparently includes detainees speaking out publicly against their incarceration. There’s the fact that officials, if you press them, acknowledge they don’t really track former detainees – so this is largely speculative. And there’s the specious use of the term “return” – given that most of the detainees who were released weren’t found on the battlefield in the first place and were never formally charged with anything.

From Denbeaux’s December 2007 report:

The Department of Defense has publicly insisted that “just short of 30” former Guantánamo detainees have “returned” to the battlefield… but to date the Department has described at most 15 possible recidivists, and has identified only seven of these individuals by name. According to the data provided by the Department of Defense.. at least eight of the 15 individuals alleged by the Government to have “returned to the fight” are accused of nothing more than speaking critically of the Government’s detention policies.

From his January 2009 report:

The Department of Defense does not keep track of released detainees nor does it follow their post release conduct.

Denbeaux calls this week’s outrageous Pentagon assertions the latest example of what he calls “numbers without names and trends without numbers.” He told me he’s outraged it’s been so widely picked up — including by the Times.

“I don’t see what the point is of a public editor criticizing a story for the New York Times if they’re going to republish it a year later,” he told me.

Gullible, amnesiac journalists are a dangerous thing. Is our profession really incapable of learning anything from its mistakes?

Spanish Court Weighs Inquiry on Torture for 6 Bush-Era Officials

By MARLISE SIMONS, NY Times

LONDON — A Spanish court has taken the first steps toward opening a criminal investigation into allegations that six former high-level Bush administration officials violated international law by providing the legal framework to justify the torture of prisoners at Guantánamo Bay, Cuba, an official close to the case said.

The case, against former Attorney General Alberto R. Gonzales and others, was sent to the prosecutor’s office for review by Baltasar Garzón, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet. The official said that it was “highly probable” that the case would go forward and that it could lead to arrest warrants.

The move represents a step toward ascertaining the legal accountability of top Bush administration officials for allegations of torture and mistreatment of prisoners in the campaign against terrorism. But some American experts said that even if warrants were issued their significance could be more symbolic than practical, and that it was a near certainty that the warrants would not lead to arrests if the officials did not leave the United States.

The complaint under review also names John C. Yoo, the former Justice Department lawyer who wrote secret legal opinions saying the president had the authority to circumvent the Geneva Conventions, and Douglas J. Feith, the former under secretary of defense for policy.

Most of the officials cited in the complaint declined to comment on the allegations or could not be reached on Saturday. However their defenders have said their legal analyses and policy work on interrogation practices, conducted under great pressure after the 2001 terrorist attacks, are now being unfairly second-guessed after many years without a terrorist attack on the United States.

The court case was not entirely unexpected, as several human rights groups have been asking judges in different countries to indict Bush administration officials. One group, the Center for Constitutional Rights, had asked a German prosecutor for such an indictment, but the prosecutor declined.

Judge Garzón, however, has built an international reputation by bringing high-profile cases against human rights violators as well as international terrorist networks like Al Qaeda. The arrest warrant for General Pinochet led to his detention in Britain, although he never faced a trial. The judge has also been outspoken about the treatment of detainees at Guantánamo Bay.

Spain can claim jurisdiction in the case because five citizens or residents of Spain who were prisoners at Guantánamo Bay have said they were tortured there. The five had been indicted in Spain, but their cases were dismissed after the Spanish Supreme Court ruled that evidence obtained under torture was not admissible.

The 98-page complaint, a copy of which was obtained by The New York Times, is based on the Geneva Conventions and the 1984 Convention Against Torture, which is binding on 145 countries, including Spain and the United States. Countries that are party to the torture convention have the authority to investigate torture cases, especially when a citizen has been abused.

The complaint was prepared by Spanish lawyers, with help from experts in the United States and Europe, and filed by a Spanish human rights group, the Association for the Dignity of Prisoners.

The National Court in Madrid, which specializes in international crimes, assigned the case to Judge Garzón. His acceptance of the case and referral of it to the prosecutor made it likely that a criminal investigation would follow, the official said.

Even so, arrest warrants, if they are issued, would still be months away.

Gonzalo Boye, the Madrid lawyer who filed the complaint, said that the six Americans cited had had well-documented roles in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.

Secret memorandums by Mr. Yoo and other top administration lawyers helped clear the way for aggressive policies like waterboarding and other harsh interrogation techniques, which the C.I.A. director, the attorney general and other American officials have said amount to torture.

The other Americans named in the complaint were William J. Haynes II, former general counsel for the Department of Defense; Jay S. Bybee, Mr. Yoo’s former boss at the Justice Department’s Office of Legal Counsel; and David S. Addington, who was the chief of staff and legal adviser to Vice President Dick Cheney.

Mr. Yoo declined to comment on Saturday, saying that he had not seen or heard of the petition.

Mr. Feith, who was the top policy official at the Pentagon when the prison at Guantánamo was established, said he did not make the decision on interrogation methods and was baffled by the allegations. “I didn’t even argue for the thing I understand they’re objecting to,” he said.

But Mr. Boye said that lawyers should be held accountable for the effects of their work. Noting that the association he represents includes many lawyers, he said: “This is a case from lawyers against lawyers. Our profession does not allow us to misuse our legal knowledge to create a pseudo-legal frame to justify, stimulate and cover up torture.”

Prosecutions and convictions under the Torture Convention have been rare.

Reed Brody, a lawyer at Human Rights Watch who has specialized in this issue, said that even though torture was widely practiced, there were numerous obstacles, including “a lack of political will, the problem of gathering evidence in a foreign country and the failure of countries to pass the necessary laws.”

This year for the first time, the United States used a law that allows it to prosecute torture in other countries. On Jan. 10, a federal court in Miami 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.”

The United States, however, would be expected to ignore an extradition request for former officials, although other investigations within the United States have been proposed. Calls for the Justice Department to open a criminal investigation have so far been resisted by the Obama administration, but for more than four years, the Justice Department ethics office has been conducting its own investigation into the work of Mr. Yoo and some of his colleagues.

While the officials named in the complaint have not addressed these specific accusations, Mr. Yoo defended his work in an opinion column in The Wall Street Journal on March 7, warning that the Obama administration risked harming national security if it punished lawyers like himself.

“If the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today’s intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future,” Mr. Yoo wrote.

Scott Shane and Eric Schmitt contributed reporting from Washington.