Obama Lays The Hammer Down On Torture Prosecutions

In his speech today, the President suggested that existing structures could deal with investigations and even proseuctions of those who violated law during the Bush Administration's torture regime. He means Congressional inquiries rather than an independent commission, and Justice Department prosecutions rather than through an indepedent or special counsel.

I know that these debates lead directly to a call for a fuller accounting, perhaps through an Independent Commission.

I have opposed the creation of such a Commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws.

A fine collection of words. But in his meeting with civil liberties and human rights groups yesterday, Obama suggested that he - not the Attorney General - would not allow such prosecutions to take place.

On at least one issue, though, Obama seems to have made up his mind. Isikoff reports that Obama announced his opposition to torture prosecutions--an unsurprising admission, perhaps, but one that must have disappointed many in attendance. Previously he had said that the question of investigation and prosecuting Bush administration officials was one for Holder to answer. But with Holder sitting right beside him, there's no doubt he's feeling pressure to, as they say, look forward, not backward.

So in public, the President gave a pretty speech about upholding the rule of law, but inside the White House, he vows not to uphold it, to do precisely the opposite of what he claims to believe makes us "who we are as a people." In fact, it does violence to the rule of law for the President to even decide who does and does not get prosecuted, as that is nowhere near within his jurisdiction. And as each new revelation about criminal activity committed at the highest levels comes out, the hollowness of Obama's rhetoric becomes more and more clear:

One source with knowledge of Zubaydah's interrogations agreed to describe the legal guidance process, on the condition of anonymity.

The source says nearly every day, (a contractor named James) Mitchell would sit at his computer and write a top-secret cable to the CIA's counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration's legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

A new document is consistent with the source's account.

The CIA sent the ACLU a spreadsheet late Tuesday as part of a lawsuit under the Freedom of Information Act. The log shows the number of top-secret cables that went from Zubaydah's black site prison to CIA headquarters each day. Through the spring and summer of 2002, the log shows, someone sent headquarters several cables a day.

"At the very least, it's clear that CIA headquarters was choreographing what was going on at the black site," says Jameel Jaffer, the ACLU lawyer who sued to get the document. "But there's still this question about the relationship between CIA headquarters and the White House and the Justice Department and the question of which senior officials were driving this process."

This happened BEFORE the Office of Legal Counsel authorized torture through the Bybee/Yoo memos, and at a time when Gonzales was not in the Justice Department or involved in the workings of the CIA or any other federal agency. He was the President's lawyer and speaking, presumably, for the President. Directly from the White House. Directing and approving torture without legal opinions. I agree with the groups seeking disbarment of the lawyers involved with twisting the law to justify the Bush torture program, and apparently, the first lawyer involved in doing this was Alberto Gonzales.

But the President of the United States would rather issue a blanket directive that actions like this - the lawyer to the President sitting down and cabling approval of torture tactics against a prisoner on a daily basis - should face no accountability whatsoever. Making the rhetorical flourish in the National Archives today very difficult to take seriously.

UPDATE: David Waldman was at the meeting, and he says on the point of investigations and prosecutions, Isikoff's reporting is wrong. Duly noted.

CA-36: Jane Harman Will Have A Primary Challenge, Or She Will Leave Congress

Here's the latest on the Jane Harman/AIPAC story that I haven't previously discussed here. We know that she discussed the case against two AIPAC lobbyists with a suspected Israeli double agent, possibly Haim Saban, and made at least an implicit arrangement to push for the dropping of the case against the lobbyists in exchange for help getting appointed the chair of the House Intelligence Committee. It is unclear whether this actually represents a violation of the federal bribery statute (doing a favor in exchange for something of value), but according to the story by Jeff Stein at CQ Politics, the Justice Department felt they had Harman in a "completed crime." Nancy Pelosi was briefed that Harman had been picked up on a federal wiretap but was barred from disclosing it to her House colleague, and this could explain why Harman was not appointed to that Committee Chair. The reason that the DoJ failed to charge Harman was because Alberto Gonzales intervened on her behalf, because, among other things, he knew she would be helpful in the forthcoming battle over, amazingly enough, the Administration's warrantless wiretapping program.

A person who is familiar with Mr. Gonzales’s account of the events said that the former attorney general had acknowledged having raised with Mr. Goss the idea that Ms. Harman was playing a helpful role in dealing with The Times.

But Mr. Gonzales’s principal motive in delaying a briefing for Congressional leaders, the person said, was to keep Ms. Harman from learning of the investigation before she could be interviewed by agents of the Federal Bureau of Investigation. A spokesman for Ms. Harman said the congresswoman had never been interviewed by the bureau.

There's also the charge that then-NSA Director Michael Hayden provided talking points for a Harman discussion with NY Times Washington editor Philip Taubman BEFORE THE 2004 election, to get the paper to squash the warrantless wiretapping story. And today, Stein advances the story by noting that a whistleblower informed then-Speaker Dennis Hastert about the Bush Administration suppression of the wiretapped Harman call (it's a violation of standard procedure to withhold information involving national security and a member of Congress from either Democratic and Republican leaders in the House).

Needless to say, this is a tangled web of intrigue, and with more disclosures it's likely to get worse. This has led to speculation that Harman would either not run for another term, or face a primary challenge. I can confirm that Marcy Winograd is likely to run if Harman does seek re-election. Winograd, who took 38% of the vote in 2006, was not planning a run until the AIPAC/wiretap revelations. But she is uncomfortable with Harman not being held to account, and saw no other option on the horizon. She has a federal account and will take the pulse of the district before a formal announcement.

"I think she's clearly in trouble and I think she knows it and is doing whatever she can to turn the tables on the situation," Winograd said. "And now she is the spokesperson for the ACLU or the Bill of Rights Foundation. It would be comical, if the stakes weren't so high." [...]

One of Winograd's first steps is going to be "taking the pulse" of the district on issues like military spending and single-payer health care, among other issues. It's entirely possible that Harman might bow out and try to annoint a successor. Or that another establishment Dem might try to take advantage of her weakened position. Which is why I wanted to get the word out as quickly as possible that there's a really credible progressive alternative. Winograd has already run a primary once in the district. Activists there know who she is, and a lot of them have already worked for her in 2006. This would not be a net-based candidacy, but it will certainly help to have it be net-supported.

In addition, the name of blogger John Amato has surfaced as a possible challenger.

(Howie) Klein said a group of bloggers met earlier this year to discuss challenging Harman in a primary, weeks before the recent revelations. He said many in the blogging community would like a fellow blogger, John Amato, to challenge Harman and that Amato is considering it.

Winograd said that she would step aside for the right candidate, and that she’s taking up the mantle at least for now.

“I don’t know who else will answer the call, if not me,” she said. “People with great name recognition and track records in public office are not going to take her on.”

I think Marcy feels the duty to run. At the same time, she agreed that there needs to be one progressive alternative to Harman. But my sense from people in the district is that Harman is unlikely to try another re-election campaign. Even the above-mentioned NYT article refers to this.

While the two women do not display overt hostility, Ms. Harman seems to have never quite gotten over the slight. Colleagues say that since Ms. Pelosi, 69, thwarted her ambitions for a more prominent role on security issues, Ms. Harman, 63, has grown weary of Congress and has been eyeing a post in the Obama administration, perhaps as an ambassador.

This tracks with everything I've heard from locals. She wanted the Intelligence Committee chair, and failing that she wanted an Administration job, and failing that she wants out.

There would be a whole host of elected officials who would jump in if Harman retired. Ted Lieu, the Assemblyman in this district, could be enticed away from his Attorney General campaign. City Councilwoman Janice Hahn would take a look. And there would be others. But if Harman stays in, none of these electeds would run, avoiding what would be an expensive primary. Harman is the richest member of Congress and has no problem spending her own money to keep her seat.

Either way, there will be a contested race in CA-36 in June 2010. And I do believe that a primary would feature only one major challenger. The question is, who would that be?

CA-36: Wherein Jane Harman Tries To Throw The 2004 Election

This Jane Harman/AIPAC scandal continues to grow. It jumped from the inside the Beltway rag CQ Politics to The New York Times.

One of the leading House Democrats on intelligence matters was overheard on telephone calls intercepted by the National Security Agency agreeing to seek lenient treatment from the Bush administration for two pro-Israel lobbyists who were under investigation for espionage, current and former government officials say.

The lawmaker, Representative Jane Harman of California, became the ranking Democrat on the House Intelligence Committee after the 2002 election and had ambitions to be its chairwoman when the party gained control of the House in 2006. One official who has seen transcripts of several wiretapped calls said she appeared to agree to intercede in exchange for help in persuading party leaders to give her the powerful post.

But that's not what advances the story today. Harman has denied contacting DoJ abut the AIPAC case, though she left out contacting the White House, and she did not deny that the phone call existed. Remember that a key part of the story concerned the idea that Harman was saved from prosecution on this by Alberto Gonzales, who "needed Jane" to help front for the Administration's warrantless wiretapping program. In today's article, the Times drops this bombshell:

Bill Keller, the executive editor of The Times, said in a statement Monday that Ms. Harman called Philip Taubman, then the Washington bureau chief of The Times, in October or November of 2004. Mr. Keller said she spoke to Mr. Taubman — apparently at the request of Gen. Michael V. Hayden, then the N.S.A. director — and urged that The Times not publish the article.

“She did not speak to me,” Mr. Keller said, “and I don’t remember her being a significant factor in my decision.”
Shortly before the article was published more than a year later, in December 2005, Mr. Taubman met with a group of Congressional leaders familiar with the eavesdropping program, including Ms. Harman. They all argued that The Times should not publish.

Ultimately, it's on Bill Keller whether or not to publish, so I don't want to give Harman too much credit here. But as Greg Sargent notes, this is a startling turn of events. A Democratic Congresswoman acted on behalf of a Republican President's NSA director to spike a story about illegal activity in the executive branch before a close Presidential election. The ramifications are enormous.

This discussion between Harman and Taubman apparently happened before the wiretapped phone call between Harman and the Israeli agent, according to the TPM Muckraker timeline. So Gonzales knew that Harman could be counted on to support the warrantless wiretapping program, because she had years of experience doing so at that point.

This gets uglier and uglier. Small wonder that Harman was passed over for a position in the Obama Administration.

...Harman has released a letter calling on the Attorney General to release all transcripts and investigative material related to her collected by the Justice Department in 2005 and 2006. This is a bit of misdirection, since by all accounts these were legal wiretaps of foreign agents. But given the revelations about continued illegal wiretapping at the NSA, I understand Harman's strategy.

Like A Really Bad Spy Movie

I'm sitting here in Jane Harman's Congressional district right now. I could probably go out on the street and informally poll a dozen people about AIPAC, and I'm pretty certain nobody would know what I'm talking about. But inside the Beltway, AIPAC is sacrosanct and Israel practically the 51st state. So this blockbuster story is a perfect depiction of, as Attaturk says, the way Washington works. He simplifies it so I don't have to:

1. Congressman Jane Harman (D - CA) told a suspected Israeli agent that she would lobby the Justice Department to reduce espionage-related charges against two officials of AIPAC, the powerful pro-Israel lobby.

2. This was known because of an NSA Wiretap.

3. The suspected Israeli agent then promised to lobby Nancy Pelosi to make Harman chair of the House Intelligence Committee after the 2006 elections (she wasn't).

4. There were some reports of this influence peddling in 2006, but it was dropped for a “lack of evidence” by Alberto R. Gonzales, who intervened to stop the investigation.

5. Gonzales intervened because he wanted Harman to defend the administration’s warrantless wiretapping program, which was about break in The New York Times.

6. And she promptly went out and defended it.

This looks just terrible for Jane Harman. There's a trail of reporting on this going back to 2006, but the new material concerns Abu Gonzales stepping in to squash the investigation so Harman could parrot the Bush Administration line on warrantless wiretapping. And there's an even larger trail of reporting on Harman's fronting for Bush. The point is that the pieces all fit together.

Indeed, as I've noted many times, Jane Harman, in the wake of the NSA scandal, became probably the most crucial defender of the Bush warrantless eavesdropping program, using her status as "the ranking Democratic on the House intelligence committee" to repeatedly praise the NSA program as "essential to U.S. national security" and "both necessary and legal." She even went on Meet the Press to defend the program along with GOP Sen. Pat Roberts and Rep. Pete Hoekstra, and she even strongly suggested that the whistleblowers who exposed the lawbreaking and perhaps even the New York Times (but not Bush officials) should be criminally investigated, saying she "deplored the leak," that "it is tragic that a lot of our capability is now across the pages of the newspapers," and that the whistleblowers were "despicable." And Eric Lichtblau himself described how Harman, in 2004, attempted very aggressively to convince him not to write about the NSA program.

It's a classic espionage story, right down to the part where Harman hangs up the phone with the Israeli agent after saying "This conversation doesn't exist." For her part, Harman is denying the story, but Stein has several sources who read the transcripts from the NSA wiretaps (apparently gathered legally, but who the hell knows). And he's right, at the end, about the utter futility of this exercise, on all counts:

Ironically, however, nothing much was gained by it.

The Justice Department did not back away from charging Rosen and fellow AIPAC official Keith Weissman with espionage (for allegedly giving classified Pentagon documents to Israeli officials).

Gonzales was engulfed by the NSA warrantless wiretapping scandal. (and the US Attorneys probe -ed.)

And Jane Harman was relegated to chairing a House Homeland Security subcommittee.

Josh Marshall asks a lot of the key questions, including whether Harman was being blackmailed by the Bush Administration to be their front person on wiretapping, having been wiretapped herself. And Ron Kampeas has a somewhat different take, suggesting that this is only coming out because the case against AIPAC officials Rosen and Weissman is faltering. There's one way to know for sure: a full-blown investigation, which Harman ought to welcome to clear her name.

Spanish Court Opens Torture Inquiry Against Gonzales, Addington, Yoo, Others

Just off the press from the New York Times:

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.

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.

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 Guantánamo Bay prisoners who were citizens or residents of Spain. The Spanish Supreme Court had overturned a conviction of one of them, saying that Guantánamo 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.

The six officials in the inquiry are:

• former Attorney General Alberto Gonzales
• John Yoo, the Justice Department attorney who authored the infamous "torture memo"
• Jay Bybee, Yoo's superior at the Office of Legal Counsel, also involved in the creation of torture memos
• David Addington, Dick Cheney's chief of staff and legal adviser
• Douglas Feith, the former undersecretary of defense for policy
• William Haynes, the legal counsel at the DoD

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 Garzón, 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. In England, police are investigating whether British intelligence officers knew about and prolonged the torture of Binyam Mohamed, the recently released Guantanamo detainee. As Glenn Greenwald notes, other countries have not abandoned their commitment to the rule of law.

As The Guardian reported, 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." 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." British Prime Minister Gordon Brown has clearly tried desperately to avoid any such investigation, yet as The Washington Post reported this morning, even he was forced to say in response: "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 manuevers 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 end of the NY Times article shows why the US can hardly claim that Spain is acting irresponsibly beyond its own borders and violating the soveriegnty of other nations, because in one recent case we did almost exactly the same thing:

The United States for the first time this year used a law that allows for the prosecution in the United States of torture in other countries. On Jan. 10, a Miami court sentenced Charles Taylor, the former Liberian leader, 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.”

So do I.

Binyam Mohammed Going Home

This is the least we can do.

A former British resident held at Guantanamo Bay, Cuba, will be flown home early next week, marking the first transfer of a Guantanamo detainee by the Obama administration, according to a source involved in the process, who spoke on the condition of anonymity because he is not authorized to speak on the subject.

The British government had pressed the new administration to make the case of Binyam Mohammed a priority. The release of the Ethiopian native could come as early as Monday, the day Attorney General Eric H. Holder Jr. is scheduled to visit the military facility with top Justice Department officials who are leading a review of the cases of the approximately 245 detainees held there [...]

Mohammed was recently visited by British officials, including a police physician who persuaded him to end a hunger strike. Officials in Britain have said Mohammed faces no charges there and will be released upon his return.

The question is whether there will be a gag order on Mohammed, like David Hicks, or whether he will be allowed to tell his story in his own words, the way Mohamed Barag Fashmilah did to devastating effect in the Huffington Post yesterday. Either way, Bashmilah and Mohammed are symbols of the same disease - a failure to account for the past and unburden the sins of the Bush era.

My physical symptoms are made worse by the anxiety caused by never knowing where I was held, and not having any form of acknowledgment that I was disappeared and tortured by the U.S. government.

I believe that acknowledgment is the first step toward accounting for a wrongdoing. The American public needs to face what has happened to those of us who were disappeared and mistreated in the name of their national security, demand accountability for those who committed torture and other crimes, and acknowledge the suffering of those who became victims. Today, a group of concerned Americans called on President Obama to take the first steps to do just that, by demanding that he establish an independent commission of inquiry into the treatment of detainees in the "War on Terror."

President Obama himself recently said that "democracy requires accountability and accountability requires transparency." If he establishes this commission, it would break the silence about what has happened and signal a real commitment not only to changing the practices of the past but also to ensuring that they do not happen again. Both the American public and the victims of these past policies need to understand what the CIA did in the name of U.S. national security. We need to find out where we were all held and who is still missing. And we need justice for the crimes that were committed in violation of our most basic human rights -- rights the United States has always claimed to uphold and defend. President Obama's recent order to the CIA to shut down its secret prisons was a significant step in the right direction, but it did not resolve the unfinished business of establishing accountability and restoring transparency.

The American public deserves to know what was done to people like me -- and I deserve to know why I lost nineteen months of my life -- all in the name of protecting their security. It gives me faith to see that Americans are standing up for my rights and calling for the truth to be exposed. It is my hope that the President will not only establish this commission, but that he will also direct the relevant authorities to investigate and prosecute those who broke American laws in ordering the torture and disappearance of people like me. Truth and justice are not in opposition; both are necessary, and both are the right of all Americans and the victims harmed in their name.

Absolutely. At the very, very least, we need Patrick Leahy's Truth Commission so we can discover the truth and build reforms. However, the Church Commission didn't work to stop a rogue President from attacking the rule of law again. So we need to have real accountability in the form of prosecutions, not clown shows where the likes of Alberto Gonzales "cooperate" the way he cooperated with the Senate Judiciary Committee as Attorney General ("I don't recall, I don't recall.") If the monsters aren't shown the consequences of their wrongs, they will return to do more damage.

...the flip side of the Mohammed release is the terrible case of the Uighurs, who have done nothing wrong but who are not able to get released. An appeals court blocked their transfer to the United States this week.

Party Like It's 1999

The efforts by the right-wing to derail the nomination of Eric Holder is an object lesson in how they will press every advantage, use every trick, and enlist every argument to deliver defeats to their adversary, simply because they treat politics like the sports section, charting wins and losses. They are very effective in the minority, and with a dreadfully bumbling majority as their opponent, that effectiveness will be magnified.

Watch Arlen Specter paint Holder as a cross between Nixon and Idi Amin:

The senator, Arlen Specter of Pennsylvania, who is the ranking Republican on the Judiciary Committee, said Mr. Holder’s support of the White House’s stance on three contentious issues when he was deputy attorney general in the Clinton administration suggested that he was too willing to do the president’s bidding.

“He’s had an outstanding academic and professional record, and I acknowledge that early on,” Mr. Specter said of Mr. Holder in a 25-minute speech on the Senate floor. “But aside from these qualifications on Mr. Holder’s résumé, there is also the issue of character, and sometimes it is more important for the attorney general to have the stature and the courage to say no instead of to say yes.”

Before Tuesday, Mr. Specter had been mildly critical of Mr. Holder’s role in President Bill Clinton’s pardon of the fugitive financier Marc Rich. He said Tuesday that he would wait until the hearing next week to decide how he would vote, but in the Senate speech he let loose on Mr. Holder, comparing him with Mr. Gonzales in his ability to maintain independence from the president.

Mr. Specter raised questions about Mr. Holder’s role as deputy attorney general on a range of issues that included an investigation into the 1993 federal siege in Waco, Tex., that left David Koresh and about 80 of his Branch Davidian followers dead, and an espionage investigation involving a nuclear scientist, Wen Ho Lee.

Neat switch there, huh? It's Holder who is the toady for the new President, as Specter exactly the same criticisms that were launched at Abu Gonzales. What's more, Specter decided to employ the fresh "I was not consulted" criticism, much like Dianne Feinstein used to criticize the selection of Leon Panetta.

Specter said in prepared remarks Tuesday that Obama did not consult with him before choosing Eric Holder Jr. to be attorney general, and he tells Legal Times that Obama also did not consult with him or notify him before announcing four other Justice Department nominees Monday.

“History demonstrates that presidents who seek the advice of members of the Senate prior to submitting a nomination frequently see their nominees confirmed more quickly and with less controversy than those who do not,” Specter (R-Pa.) said. “A recent example is that of President Clinton who consulted with then-Chairman [Orrin] Hatch prior to nominating Justice Ruth Bader Ginsberg and Justice Stephen Breyer to the Supreme Court. Both nominees were confirmed with minimal controversy.

“In contrast, on the nomination of Mr. Holder, President-elect Obama chose not to seek my advice or even to give me advance notice in my capacity as Ranking Republican on the Judiciary Committee, which is his prerogative.”

Be prepared to hear that story about Orrin Hatch and Bill Clinton over and over, by the way. The new rule is that all judicial nominees, maybe all nominees, from Obama must get clearance from Republicans before going forward. That's how things work now.

And as long as we're throwing in the Feinstein/Panetta spat, why don't we connect the dots from Holder to Rod Blagojevich?

In a conference call this morning, Sen. Chuck Grassley (R-IA) continued the assault, saying that “it’s not going to be a smooth confirmation” for Holder. He evoked Holder’s very tenuous ties to embattled Illinois Gov. Rod Blagojevich as reason to be suspicious of the nominee:

GRASSLEY: It signals that it’s not going to be a smooth confirmation. It doesn’t signal that he may not be confirmed. … [H]e was a counsel or at least Governor Blagojevich had sought to have him involved with something with race tracks in Illinois and casinos, I think. And so we’re trying to get freedom of information on that because we need to know what the relationship is with Governor Blagojevich. And I don’t say that in denigrating in any way except Governor Blagojevich’s recent troubles raises questions with anybody that’s had a relationship with him. … [I]t’s not going to be smooth sailing.

Ironically, just minutes before asserting that “anybody that’s had a relationship” with Blagojevich “raises questions,” Grassley insisted that the Senate must seat Blagojevich-appointed Roland Burris. “He’s got a perfect right to have that seat,” Grassley said.

Consistency is the hobgoblin of little Democrats.

It's just a matter of time before all the Justice Department nominees are called out for being insubstantial yes-men with ties to corrupt cronies. And if that doesn't work, conservatives can always play the Terri Schiavo card.

Conservatives are now brushing off the Schiavo case to use it against Thomas Perrelli, President-elect Obama’s pick for the no. 3 spot at the Justice Department. Right-wing websites are outraged at Obama’s association with Perrelli, since he was one of the lawyers who represented Michael Schiavo, who wanted his wife’s feeding tube removed. The Washington Times today reports that these conservatives are now gearing up to fight Perrelli’s nomination:

Andrea Lafferty, executive director of the Traditional Values Coalition, derided Mr. Perrelli’s selection as “just another death-peddler Obama has added to his list of nominees.” She said he’s earned the nickname among pro-lifers of “Piranha Perrelli” for his work on the case.

Tom McClusky, vice president for government affairs at the Family Research Council, said several end-of-life issues could make their way to the federal level in the next four years and having Mr. Perrelli at the department means pro-life causes would have a tougher time winning those debates.

“If the Justice Department isn’t going to do anything about it, the states, what’s to stop them from cases like Schiavo and even worse cases,” Mr. McClusky said.

Now, not all of these are cause for alarm - if the right wants to relitigate the deeply unpopular Schiavo case, by all means, they should go ahead. And I cannot say with certainty that Holder's actions with respect to Marc Rich or any of these other golden oldies was completely laudatory - I would suspect it was less than that. But that's hardly the point, even for conservatives - in the end, their strategy is to chip away at Obama's legitimacy and the legitimacy of his cabinet appointments, in particular Holder. And even if it doesn't pay off until months or even years into the future, it will be a success. Eric Lotke has a good piece on this today.

Losing the election, lacking ideas about how to fix the Bush-era mess, and unsure how or even whether to attack Obama personally, the conservatives are digging into the old bag of tricks. Karl Rove is the point man. The 1990’s are the time frame.

Conservatives are practiced at this attack. The talking points have long since been written and mastered. Talk radio needs the exercise. The Holder nomination represents a pathetic attempt to relive the glory days of the past [...] the Republicans are complaining about an eight year old pardon. The same republicans who sat around while George Bush turned the Department of Justice into a political tool, including hiring his white house counsel as Attorney General and firing US Attorneys who refused to undertake political prosecutions. Now they’re worried that this well proven civil servant, who earned his stripes on public corruption, might have made a mistake eight years ago.

Maybe he did. Or maybe he didn’t. But the world has moved on since then. We have other things to think about. Don’t fall for the distraction of litigating this long-dead case. Resist even the temptation to point out Bush’s own dubious pardons. Our people need doctors, our bridges need building, and the economy needs fixing. There’s work to do.

Politics here count for more than anything. If the conservatives win, it energizes the base for future battles. If the conservatives lose, they are driven farther into their corner. That’s why Karl Rove chose the battleground here, on fertile Clintonian soil.

This is all about picking a fight, trying to "play offense" instead of defense, all of the little petty nonsense that the media sucks up like cats to milk, precisely what can derail an agenda as irrelevancies take priority. Lotke thinks the answer for progressives and Democrats is to play this like a team. Indeed, Patrick Leahy today threw the Gonzales statement back in the face of every Republican who voted to confirm him. I would just be wary that Democrats don't ignore this. It's really quite toxic.

Casualties Of War

Alberto Gonzales, a guy who wrote memos calling the Geneva Conventions quaint, who barged into John Ashcroft's hospital bed to sign off on illegal wiretapping of Americans, who aided in the authorization and direction of torture, who watched as the Justice Department under his tenure became a politicized mess, just can't seem to figure out what made him the bad guy.

WASHINGTON -- Alberto Gonzales, who has kept a low profile since resigning as attorney general nearly 16 months ago, said he is writing a book to set the record straight about his controversial tenure as a senior official in the Bush administration [...]

"What is it that I did that is so fundamentally wrong, that deserves this kind of response to my service?" he said during an interview Tuesday, offering his most extensive comments since leaving government.

During a lunch meeting two blocks from the White House, where he served under his longtime friend, President George W. Bush, Mr. Gonzales said that "for some reason, I am portrayed as the one who is evil in formulating policies that people disagree with. I consider myself a casualty, one of the many casualties of the war on terror."

If Gonzales was just a dupe, an unwilling functionary in the Bush regime, that statement ALONE would be enough to justify all the scorn heaped on him. I think there are several thousand American families, and several hundred thousand worldwide, that know a little something about being casualties in the war on terror. Being forced out of your cushy job as Attorney General and getting ready to write a book doesn't qualify.

Republicans sure do love their own personal martyrdom, don't they?

Tying Up Loose Ends

This is interesting. In the waning days of the Bush Administration, outside actors - not connected to Obama or his transition team - are threatening accountability and rollback on two key subversions of the rule of law: the US Attorney purges and the retroactive immunity for telecoms involved in the warrantless surveillance program.

First, on the US Attorney probe. Nora Dannehy has been charged with investigating the matter, and she's getting to work.

Attorney General Michael B. Mukasey appointed prosecutor Nora R. Dannehy two months ago, after the department's Office of Inspector General and Office of Professional Responsibility reported that they had hit a roadblock in their lengthy probe into whether political interference prompted the dismissals. Internal investigators said they had been stymied by the refusal of key witnesses, including former presidential adviser Karl Rove and former White House counsel Harriet E. Miers, to cooperate.

By naming a federal prosecutor to determine whether crimes have been committed, the attorney general ensured that authorities would have the power to compel testimony and documents. Dannehy, a longtime assistant U.S. attorney in Connecticut, in recent weeks has met with lawyers and government officials involved in the case. A grand jury in the District has issued subpoenas, the sources said [...]

D. Kyle Sampson, who served as the chief of staff to Gonzales until his March 2007 resignation, recently took a leave from his job as a partner at the law firm Hunton & Williams while the investigation proceeds. A spokeswoman for the law firm said he is on leave "pending admission to the D.C. bar."

The report by Inspector General Glenn A. Fine singled out Sampson for offering testimony that was "not credible" and "unpersuasive." The authorities also concluded that Sampson had committed "misconduct."

Well that's... interesting. Dannehy appears to be making real progress, not just with Sampson, but according to Zachary Roth, with Fredo Gonzales.

In an interview with TPMmuckraker, Bob Bork Jr., who serves as a spokesman for the ex-AG, initially said that although Gonzales' lawyer, George Terwilliger III, had reached out to Dannehy at the start of her investigation, he didn't believe that Dannehy had formally contacted Gonzales or Terwilliger in connection with the probe.

But Bork Jr. called back an hour later to say that he had been mistaken about that. "We won't be able to talk about any interactions with DOJ," he now said.

In other words, it would appear, Dannehy has contacted Gonzo and/or his lawyer.

In the WaPo article Terwilliger is whining that the whole matter should be closed, probably because he wants it shut down before an Obama Administration less sympathetic to his wishes comes into power. I believe the Dannehy investigation has a short shelf life, but if she were to hand out a few indictments there would at least be some measure of accountability.

Speaking of which, the Electronic Frontier Foundation was in court yesterday, seeking to invalidate the Congressional action that immunized the phone companies from prosecution for their role in illegal wiretapping. Marcy Wheeler notes that the judges questions are far more probing than expected, and certainly not befitting someone inclined to rubber stamp the President and the Congress.

But given the questions Judge Walker has posed to the Administration, it looks like it won't be that easy. For example, there's this question, which highlights just how nutty this retroactive immunity is:

"What exactly has Congress created with § 802 (in Pub L No 110-261, 122 Stat 2467, tit II, § 201 (2008))? It does not appear to be an affirmative defense but rather appears to be a retroactive immunity for completed acts that allegedly violated constitutional rights, but one that can only be activated by the executive branch. Is there any precedent for this type of enactment that is analogous in all of these respects: retroactivity; immunity for constitutional violations; and delegation of broad discretion to the executive branch to determine whether to invoke the provision? "

He goes from there to ask several more questions getting at that pesky separation of powers thing. You know--separation of powers, which says that the courts have the ajudicatory function?

"In making the certification called for by section 802(a)(5), is the Attorney General performing an adjudicatory function? That is, is he not making a determination that only a court can make?"

They are all good questions. And they suggest that Walker is not going to simply roll over and abdicate his Article III function. Which probably means this will be appealed beyond the time when the Bush Administration leaves office.

Judges aren't inclined to having their power usurped.

There are still vestiges of the American system left that allow for a modicum of accountability. If it were up to the aristocrats running things, all of this would be shut down. They haven't obliterated the rule of law... yet.

The Post-Bush Investigation Era Begins

Obviously the bailout bill is the order of the day (and I hear enough Congresscritters saying they "have to do something" and "we are all Murcans" that the ship has pretty much sailed) but there's another very interesting report out today, a long-awaited Justice Department Inspector General summary of the US Attorney firings.

In 2007 I was fairly obsessed with these prosecutor purges, and it became clear that the affected US Attorneys were singled out for nakedly political reasons and in most cases for failing to indict Democrats or insert themselves into the electoral process. The actions of the prosecutors who remained made the actions taken to fire those who failed to comply more pronounced. The ugly underbelly of Karl Rove politics was really ripped open for all to see, and no amount of denials would change that.

The report is about as thorough as it can be, given that key Republicans in the Justice Department, as well as elected officials caught up in the probe like New Mexico Senator Pete Domenici, simply stonewalled the investigation. This is particularly the case in the firing of New Mexico US Attorney David Iglesias.

The report concludes that Iglesias was removed as a result of complaints brought to DOJ by New Mexico GOP members of Congress and party activists, and shows that Karl Rove knew in advance of the decision. It reveals that at a meeting on November 15, 2006, Rep. Heather Wilson told Rove: "Mr. Rove, for what it's worth, the U.S. Attorney in New Mexico is a waste of breath." Rove's response: ""That decision has already been made. He's gone."

But it states that IG investigators were unable to determine how Rove knew this (Iglesias wasn't notifed until December 7), and what his possible role in the decision was, because Rove and White House counsel Harriet Miers refused to cooperate with the investigation.

Similarly, it notes that Kyle Sampson, who as chief of staff to Alberto Gonzales took the lead in bringing about the firings, gave "misleading after-the-fact explanations for why Iglesias was placed on the list." The report concludes: "[W]e question whether Sampson provided us the full story about Iglesias's placement on the list, as well as the reasons for other U.S. Attorney removals."

And: "Our investigation was also hindered by the refusal of Senator Domenici and his Chief of Staff to agree to an interview by us." (In April, Domenici, who is retiring this year, received a "qualified admonition" from the Senate ethics committee for his role in the firing.)

The report is a monster, but it can be boiled down to "the DoJ broke the law in spirit and probably in letter, but they won't give us enough information to figure out precisely how they broke the law, so... somebody else should figure that out." While it certainly appears that Fredo Gonzales and some of his top deputies perjured themselves before Congress, the report does not recommend criminal charges (it merely says that Fredo et al "failed to provide accurate and truthful statements about the removals and their role in the process,” which is... something different entirely?). However, it does clearly state that Gonzales and his lead deputy Paul McNulty turned a blind eye to the firings, essentially outsourcing personnel decisions to the White House political office, and that Kyle Sampson was largely responsible for the haphazard process both during and after the firings. And it asks for the appointment of a special prosecutor to investigate this further. And wouldn't you know it, Michael Mukasey went along with it:

WASHINGTON — Attorney General Michael B. Mukasey appointed a special prosecutor on Monday to investigate whether criminal charges should be brought against former Attorney General Alberto R. Gonzales and other officials in connection with the firings of nine of United States attorneys in 2006.

“The report makes plain that, at a minimum, the process by which nine U.S. attorneys were removed in 2006 was haphazard, arbitrary and unprofessional, and the way in which the Justice Department handled those removals and the resulting public controversy was profoundly lacking,” Mr. Mukasey said in a statement. The report called for further investigation to determine whether prosecutable offenses were committed either in the firings or in subsequent testimony about them.

Nora Dannehy, acting United States Attorney in Connecticut, will lead the investigation, Mr. Mukasey said. A graduate of Harvard Law School, she has served as a prosecutor for 17 years and specializes in white-collar and public corruption cases. She led the prosecution of the former governor of Connecticut, John Rowland, who pleaded guilty in 2004 to accepting $107,000 in gifts.Mr. Gonzales, who resigned last year after coming under criticism because of the firings, has been the main focus of interest, in part because several members of Congress charged that he may have perjured himself in his testimony through his memory lapses and misstatements about the firings.

Here's Mukasey's statement. I was a little surprised that he went ahead and did this. Sure, appointing a prosecutor inside the DoJ affords a little more control than an independent counsel, but Mukasey's team will be gone soon enough, and so this investigation certainly will carry over into the next Presidency. Which is as it should be. There is no way that these charlatans should be able to manage oversight over themselves.

The question, obviously, is how far the next President would be willing to go. And not just with the US Attorney purges, but a host of other topics (Murray Waas had additional information late last week about Fredo's trip to the hospital to bully John Ashcroft into signing off on the illegal wiretapping program - looks like Bush personally directed it). The mechanisms are now in place, at least in this case, to continue serious investigations into White House crimes without meddling or stonewalling from Bush and his cronies. That's an opprtunity we can't afford to pass up.

Sandy Berger With Papers Down His Pants

In 2004, practically the entire Democratic convention was overshadowed with story upon story of former Clinton National Security Adviser Sandy Berger grabbing classified documents from the National Archives and using them for testimony with the 9-11 Commission. While it appeared that Berger was using them to refresh his memory about counter-terrorism operations rather than sell out his country to the Koreans, this was seen as dead-solid proof of Democratic perfidy and their lack of seriousness on national security, indeed their inability to be trusted with the most crucial secrets of the nation. Before that you can go back to toe-sucker Dick Morris becoming the story at the 1996 DNC.

Did this get mentioned on even one cable news report today?

A Justice Department report scolds former Attorney General Alberto Gonzales for mishandling highly classified documents about an eavesdropping program and interrogating terror detainees — two of the Bush administration's most sensitive counter-terror efforts.

The report says Gonzales failed to store the documents in proper secure facilities and at one point took them home. The report released Tuesday also says he stored them in his briefcase because he did not know the combination to the safe at his house.

Justice Department Inspector General Glenn A. Fine referred the security breach to the department's National Security Division. But the reports says prosecutors there declined to bring charges against Gonzales.

Why would they? It's Bush's Justice Department, after all, right?

I really hate even wondering if a fair standard will ever get applied to stories about Democrats and Republicans because it won't. Not anytime soon. But surely, on the day that George Bush speaks to RNC delegates, the fact that his Fredo, his handpicked Attorney General, the man who could be sitting on the Supreme Court right now if he had his way, mishandled classified information about illegal programs ought to get at least a mention, no?

(Maybe Berger should have used the "I forgot" defense like Fredo?)

...emptywheel has a lot more on this, including connections to the FISA fight.

Rule Of Law Making A Comeback?

I don't know if this is a trend or not, but when I read this:

The Second Circuit Court of Appeals issued an extremely rare order that the case of Canadian rendition victim Maher Arar would be heard en banc by all of the active judges on the Second Circuit on December 9, 2008. For the court to issue the order sua sponte, that is, of its own accord without either party submitting papers requesting a rehearing, is even more rare.

"We are very encouraged," said CCR attorney Maria LaHood. "For the court to take such extraordinary action on its own indicates the importance the judges place on the case and means that Maher may finally see justice in this country. As the dissenting judge noted, the majority’s opinion gave federal officials the license to 'violate constitutional rights with virtual impunity.' Now the court has the opportunity to uphold the law and hold accountable the U.S. officials who sent Maher to be tortured."...

After nearly two weeks in New York, with access to counsel and the court obstructed, he was flown to Jordan on a chartered jet in the middle of the night and taken by land to Syria. Mr. Arar was tortured, interrogated and kept in a 3x6x7-foot underground cell for a year until the Syrian government, finding no connections to terrorism, released him home to Canada.

...followed by this:

Former Attorney General Alberto Gonzales and embattled former White House liaison Monica Goodling are among those newly named as defendants in a private class-action lawsuit against the DOJ.

The suit, Gerlich et al. v. Department of Justice, was orginally filed in response to the Inspector General's report on politicized hiring in the Attorney General's Honors Program. The report found that a number of DOJ officials, namely Esther Slater McDonald and Michael Elston, had broken the law in basing hiring decisions based on political affiliations.

...and then topped off with this:

Federal prosecutors have sent target letters to six Blackwater Worldwide security guards involved in a September shooting that left 17 Iraqi civilians dead, indicating a high likelihood the Justice Department will seek to indict at least some of the men, according to three sources close to the case.

The guards, all former U.S. military personnel, were working as security contractors for the State Department, assigned to protect U.S. diplomats and other non-military officials in Iraq. The shooting occurred when their convoy arrived at a busy square in central Baghdad and guards tried to stop traffic [...]

The sources said that any charges against the guards would likely be brought under the Military Extraterritorial Jurisdiction Act, which has previously been used to prosecute only the cases referred to the Justice Department by the Defense Department for crimes committed by military personnel and contractors overseas. Legal experts have questioned whether contractors working for the State Department can be prosecuted under its provisions.

It just kind of makes me think that somebody, somewhere, has said "enough," or maybe a collection of folks said it, and decided to reassert the laws of the country instead of allowing executive and corporate power to run rampant.

That'd be nice...

"...as many loyalists as possible."

Today the Justice Department's Inspector General, Glenn Fine, appeared before the Senate Judiciary Committee to discuss Monday's report showing serious violations of the law in the hiring of career Department employees. What the IG revealed today was that the attitude of extreme partisanship inside the DoJ was pervasive. Whether people were actively engaging in politicization or just tacitly accepting it, everyone was at least aware of what was happening... everyone except for Abu Gonzales, of course, who does not recall.

FINE: He said he wasn’t aware of what was going on. He said he did not know Goodling used poltiical factors when assessing candidates for career positions, did not know the search terms Goodling used, did not know even that Goodling’s portfolio including hiring for IJs [immigration judges], and basically said he didn’t have knowledge of the role the office of the Attorney General played in identifying candidates.

It is of course grossly incompetent for Gonzales to be unaware of the goings-on in a department he's supposed to manage. But I don't buy this at all. Gonzales came from the White House counsel's office, and it is beyond clear that the politicized hiring originated at 1600 Penna. Charlie Savage finds evidence inside the IG report.

On May 17, 2005, the White House’s political affairs office sent an e-mail message to agencies throughout the executive branch directing them to find jobs for 108 people on a list of “priority candidates” who had “loyally served the president.”

“We simply want to place as many of our Bush loyalists as possible,” the White House emphasized in a follow-up message, according to a little-noticed passage of an internal Justice Department report released Monday about politicization in the department’s hiring of civil-service prosecutors and immigration officials [...]

The report released on Monday by Justice Department investigators said that the context of the May 17, 2005, message from the White House about its priority-hire list “made plain” that it was seeking politically appointed government jobs, for which it is legal to take politics into account. The report did not say who sent the message.

But the message also urged administration officials to “get creative” in finding the patronage positions — and some political appointees carried out their mission with particular zeal.

“We pledge 7 slots within 40 days and 40 nights. Let the games begin!” Jan Williams, then the White House’s liaison to the Justice Department, responded in an e-mail message on May 19, 2005.

But despite this very clear evidence, the IG only consulted with one White House official, Rove protege Scott Jennings, during the entire investigation. It's this compartmentalization - investigating pieces of the federal bureaucracy in a vacuum and refusing to connect the dot to the overall project directed at the highest levels - that feeds the Beltway mindset that restricts accountability at every turn. As Jonathan Turley said yesterday, if Monica Goodling becomes the next iteration of the "few bad apples" at Abu Ghraib, with accountability and punishment ending with her, it would be pathetic.

And even getting Goodling to pay for this would be a stretch. She was given immunity against self-incrimination at her Congressional hearing, and the crime she committed doesn't appear to have a penalty now that she's no longer employed by the DoJ. This made me want to scream today:

Schumer: On of the most shocking conclusions in your report is that someone like Monica Goodling, who politicized the appointment of Assistant US Attorneys, Immigration Judges, and even Counter-Terrorism positions may not face any consequences for her actions. So let me ask you this, Mr. Fine. Should such blatant politicization and illegal activity be subject to some criminal punishment so there would be some ultimate accountability.

Fine: I'm not sure it's true to say she escaped any accountability and punishment. As I discussed with Senator Whitehouse earlier, she--people did leave the Department, so they can't be disciplined by the Department, but we've recommended that they never get a job with the Department again and hopefully with the federal government again and that hopefully they consider this report if they ever do reapply. They have been exposed. Their conduct has been exposed in a transparent way for all to see. And then, there may be--I'm not saying there is but there may be appropriate Bar sanctions for--possibly--for attorneys who have committed misconduct and may have violated a Bar rule and so the Bar may look into that [...]

Whitehouse: Um, with respect to the consequences for the violation of federal law. Can you identify what Bar rules might have been broken. ... I did not see OPR making any referrals to the Disciplinary Council as a result, so I'm a little confused about what disciplinary consequences lawyers might face?

Fine: My understanding is, and I've had discussions with OPR about this, that OPR intends to, and we will participate in a notification to the Bars of individuals who are found to have committed misconduct, for them to review the conduct. Now I don't believe OPR has done a lengthy review of this and say which exact rule but it does intend to and I think it is appropriate to notify the Bars of the individuals who were involved and in fact I think some of them have already been notified; I think individuals have provided our reports to various Bars for the Bar to look at. In terms of the rules, I'm not an expert in the area, potentially Rule 8.4 which talks about the administration of justice and acts going to the fitness to practice law. I'm not necessarily saying that does apply but I do think there are things that ought to be review and looked at and I think the experts in this area ought to do that.

Whitehouse then asked about stripping civil service protection for anyone hired during Goodling's reign, and also about John Nowacki, revealed in the IG report to have lied about Goodling's hiring practices, and STILL employed by the Justice Department. And... crickets.

This, in the end, is the problem, as surely as it's the problem with citing Karl Rove for contempt. There are follow-ups and hurdles and gaps within the law that allow these people to pervert the Justice Department, use it as an arm of the RNC, put honorable people into jail, and get away with it. Because there's no understanding of the big picture here. Krugman gets at it today.

As we all know, the Bush administration essentially brushed aside all notion of due process. It locked up and tortured people it said were “enemy combatants”; it engaged in warrantless wiretapping; and so on.

We weren’t supposed to worry our pretty little heads about this, because we were supposed to take it as a given that these were people we could trust not to abuse their power.

Meanwhile, the Justice Department was interviewing job candidates, and asking,

What is it about George W. Bush that makes you want to serve him?

In other words, there was a combination of power without oversight and a deeply creepy cult of personality (which was obvious long before we got the latest specifics.)

The deeply politicized Justice Department is the firewall against accountability for the crimes of the Administration. They started that project right away to make sure.

It was in a different context and regarding different criminals, but this is what accountability looks like, courtesy (Lord help us) Republican Ted Poe:

Mr. Speaker, it seems to be this is yet another example of incompetence, waste, and possible fraud against America. If crimes have been committed, the Justice Department needs to prosecute anyone that steals money from America during this time of war. Because the long arm of American law even reaches crooked contractors in Iraq. And where shall we send these people? To the well-built Guantanamo Bay prison where we house war criminals. And that’s just the way it is.

Loyalists have a different opinion.

At Least He Doesn't Say "I Don't Recall" A Lot!

So while the Senate was legalizing warrantless wiretapping and granting Bush and the telecoms immunity yesterday, that nice Mr. Mukasey had a meeting with the Judiciary Committee on the Hill. Thought you'd like to know what he said:

• He wouldn't admit that Alberto Gonzales politicized the Department of Justice, contradicting his own agency's recent Inspector General report that has put former DoJ officials in so much trouble that independent organizations are trying to get them disbarred. He also refused to allow for any accountability to those officials, probably because he wouldn't admit they did anything wrong.

• He argued that those Administration officials who authorized and directed torture at Guantanamo Bay and throughout US detention sites worldwide "cannot and should not be prosecuted," nor should any CIA agents who participated in the torture.

• He didn't want to involve himself in the investigation over Karl Rove's involvement in the prosecution of Don Siegelman, and appeared to deny that the Office of Professional Repsonsibility had any role in such an investigation, even though it was reported just yesterday that the OPR contacted the Siegelman camp for documents in the probe.

• He decided, essentially, that it was okay for Fourthbranch Cheney to have outed Valerie Plame, and that he wouldn't step into that investigation either. He's already risking a contempt citation from the House Oversight Committee for refusing to turn over Cheney's FBI interview transcripts.

But, you know, Sens. Feinstein and Schumer are right, this guy IS an improvement over Alberto Gonzales!

The Watchers

Let's be clear about the acts of torture planned and authorized out of the White House that The New York Times has editorialized about. Some of the details were laid out in the 2002 Haynes memo signed by Donald Rumsfeld.

These techniques were new to the military. Category I comprised two techniques, yelling and deception. Category II included 12 techniques, aiming at humiliation and sensory deprivation, including stress positions, such as standing for a maximum of four hours; isolation; deprivation of light and sound; hooding; removal of religious and all other comfort items; removal of clothing; forced grooming, such as shaving of facial hair; and the use of individual phobias, such as fear of dogs, to induce stress.

Finally came Category III. These methods were to be used for only a very small percentage of detainees - the most uncooperative (said to be fewer than 3%) and exceptionally resistant individuals - and required approval by the commanding general at Guantánamo. In this category were four techniques: the use of "mild, non-injurious physical contact", such as grabbing, poking and light pushing; the use of scenarios designed to convince the detainee that death or severely painful consequences were imminent for him or his family; exposure to cold weather or water; and, finally, the use of a wet towel and dripping water to induce the misperception of suffocation. This last technique came to be known as water-boarding, described on a chat show by the vice-president, Dick Cheney, as a "dunk in the water" and a "no-brainer" if it could save lives.

Many of these alone were a violation of Common Article 3 of the Geneva Conventions. But rather than coming from a few bad apples at the various detention sites, there was a parallel process of improvisation and brainstorming happening at the highest levels. Before the activities were codified, the interrogators got to play Jack Bauer and draw up a wish list.

(Staff Judge Advocate at Guantanamo Diane) Beaver told me she arrived in Guantánamo in June 2002. In September that year there was a series of brainstorming meetings, some of which were led by Beaver, to gather possible new interrogation techniques. Ideas came from all over the place, she said. Discussion was wide-ranging [...]

Jack Bauer had many friends at Guantánamo Bay, Beaver said, "he gave people lots of ideas." She believed the series contributed to an environment in which those at Guantánamo were encouraged to see themselves as being on the frontline - and to go further than they otherwise might [...]

The younger men would get particularly agitated, excited even: "You could almost see their dicks getting hard as they got new ideas." A wan smile crossed Beaver's face. "And I said to myself, you know what, I don't have a dick to get hard. I can stay detached."

However, an authoritarian Administration was not going to let the sexually aroused grunts drive this policy. In fact, proxies to the highest-ranking officials in the executive branch went on a field trip to carry out their boss' desires.

Dunlavey told me that at the end of September a group of the most senior Washington lawyers visited Guantánamo, including David Addington, the vice president's lawyer, Gonzales and Haynes. "They brought ideas with them which had been given from sources in DC." When the new techniques were more or less finalised, Dunlavey needed them to be approved by Lieutenant Colonel Diane Beaver, his staff judge advocate in Guantánamo. "We had talked and talked, brainstormed, then we drew up a list," he said. The list was passed on to Diane Beaver." [...]

Beaver confirmed what Dunlavey had told me, that a delegation of senior lawyers came down to Guantánamo well before the list of techniques was sent up to Washington. They talked to the intelligence people, they even watched some interrogations. The message from the visitors was that they should do "whatever needed to be done", meaning a green light from the very top - from the lawyers for Bush, Cheney, Rumsfeld and the CIA.

The interrogators were allowed some jollies in the idea formation phase, but once the rules were put in place, it was Cheney, Rumsfeld, and Bush - their top deputies, sitting around and WATCHING live interrogations, and demanding that the most strenuous techniques be employed, going around Chairman of the Joint Chiefs Richard Myers, whose bitterness suggests he was a key source for the ABC story.

In his new book, Torture Team, Philippe Sands QC, a professor of law at University College London, reveals:

• Senior figures in the Bush administration pushed through previously outlawed measures with the help of unqualified and inexperienced military officials at Guantánamo.

• Myers believes he was a victim of "intrigue" by top lawyers at the department of justice, the office of the vice president, Dick Cheney, and Donald Rumsfeld's defence department.

• Myers wrongly believed interrogation techniques had been taken from the army's field manual.

This is a familiar pattern of the power center in this Administration, Rumsfeld and Cheney, subverting the will of everyone else and implementing their agenda. In this case, Myers was flat-out lied to and told that the techniques were covered under the UCMJ.

And today there's a new allegation - prisoner drugging.

Adel al-Nusairi remembers his first six months at Guantanamo Bay as this: hours and hours of questions, but first, a needle.

"I'd fall asleep" after the shot, Nusairi, a former Saudi policeman captured by U.S. forces in Afghanistan in 2002, recalled in an interview with his attorney at the military prison in Cuba, according to notes. After being roused, Nusairi eventually did talk, giving U.S. officials what he later described as a made-up confession to buy some peace.

"I was completely gone," he remembered. "I said, 'Let me go. I want to go to sleep. If it takes saying I'm a member of al-Qaeda, I will.' "

Nusairi, now free in Saudi Arabia, was unable to learn what drugs were injected before his interrogations. He is not alone in wondering: At least two dozen other former and current detainees at Guantanamo Bay and elsewhere say they were given drugs against their will or witnessed other inmates being drugged, based on interviews and court documents.

I don't know if drugging was part of the SERE (Survival, Evasion, Resistance and Escape) program on which most of the tactics were based, the very program used to train American troops for what they expected to face if captured by a brutal enemy. I do know that these tactics resulted in an unknowable amount of murders, more of which are just coming to light.

Today’s documents reveal charges that Special Forces beat, burned, and doused eight prisoners with cold water before sending them into freezing weather conditions. One of the eight prisoners, Jamal Naseer, died in U.S. custody in March 2003. In late 2004, the military opened a criminal investigation into charges of torture at Gardez. Despite numerous witness statements describing the evidence of torture, the military’s investigation concluded that the charges of torture were unsupported. It also concluded that Naseer’s death was the result of a “stomach ailment,” even though no autopsy had been conducted in his case. Documents uncovered today also refer to sodomy committed by prison guards; the victims’ identities are redacted.

Here we see how this thing was both tightly controlled and yet uncontrolled at the same time. The White House offered a menu of techniques, but they also gave that "green light." A bunch of kids who relished the power to an almost sexual degree came up with their own plans and saw that they were basically unleashed and protected from prosecution. So we advance to drugging, sodomy, and murder.

I'm watching the President dancing with a mariarchi band on cable news right now, despite our knowing all this. There are those who are paying attention, however. The Justice Department's Office of Professional Responsibility are looking at the memos used to justify torture, and I imagine that will continue beyond the term of this President. Those who have been following the story see the potential for criminal indictments, and legal experts agree, at least in theory. This, by the way, is why it's going to be nearly impossible to close Guantanamo, because the human rights abuses there will find standing should detainees be allowed on US soil. Behind the scenes there is likely to be a furious effort to indemnify and immunize this President and his senior staff.

We need truth and reconciliation.

Scott Lemieux Steals The Best Possible Headline

for thisstory about Alberto Gonzales' troubles finding a job after his unsavory departure from the Justice Department.

I can handle things! I'm smart! Not like everybody says...

Ah, Fredo. You can almost see Gonzales saying that in that low chair in Michael's office in Tahoe, can't you? Well, that, and "I don't recall."

Every single one of these horrible men and women from the Bush Administration should be eternally embarrassed by their fellow citizens for what they've perpetrated.

UPDATE: As Krugman notes, the time was you could lead a country into endless and preventable war and still get a sinecure at AEI. Gonzales REALLY had to screw up not to avail himself of some glorious wingnut welfare.

The End Of America

You know, in a sane world the top story would not be who snubbed who at the State of the Union address, as if we're all eight years old. While the media looked the other way, human rights actually died on the vine in the Senate Judiciary Committee this morning.

Sen. Joe Biden (D-DE) said that he'd been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden -- the Jack Bauer scenario -- but not OK to waterboard someone for more pedestrian information?

Mukasey responded that it was "not simply a relative issue," but there "is a statute where it is a relative issue," he added, citing the Detainee Treatment Act. That law engages the "shocks the conscience" standard, he explained, and you have to "balance the value of doing something against the cost of doing it."

What does "cost" mean, Biden wanted to know.

Mukasey said that was the wrong word. "I mean the heinousness of doing it, the cruelty of doing it, balanced against the value.... balanced against the information you might get." Information "that couldn't be used to save lives," he explained, would be of less value.

Biden responded, "You're the first I've ever heard to say what you just said.... It shocks my conscience a little bit."

So as long as we get some solid information, we can torture, be it waterboarding or thumbscrews or the rack or whatever. Because in every interrogation, you always know exactly what information you're going to get BEFOREHAND.

There's plenty more from this execrable hearing here and here and here. Basically Mukasey refused to support a ban on waterboarding, intimated that Congress hasn't weighed in on whether or not waterboarding is torture, and even refused to release details of the current CIA interrogation program. You can add in the fact that the Justice Department has been blocking a probe into politicization of the agency under Abu Gonzales to that if you so choose. And you recognize that these useful idiots on the Judiciary Committee got suckered, again. Dianne Feinstein and Chuck Schumer figured it would be OK to clear the low bar of Abu G and give a guy who has now made a mockery of human rights the position. They legitimized torture and the breakdown of American values. They get abused again and again and again and it doesn't make a bit of difference.

Torture Tape Update

So after belligerently trying to shut down the House Intelligence Committee investigation over the detroyed torture tapes, and faced with imminent subpoenas which would have bipartisan support, the CIA and the Justice Department relented, offering documents and allowing the CIA's top lawyer, John Rizzo, to testify to the committee. Whether or not they'll allow Jose Rodriguez, who is the prime subject for a committee subpoena, to testify is an open question. It's a minor victory for the separation of powers, but I stress minor. And so far, based not only on the documents given to the committee but also testimony from Michael Hayden, it looks like Abu Gonzales and John Bellinger advised against destroying the tapes, adding to other accounts that Harriet Miers advised against destruction as well. Only one lawyer known to have been present at the discussions is left out: David Addington, Cheney's lawyer. It was obvious that Addington would be the figure most likely to argue for their destruction, seeing as he's bathed in the light of Fourthbranch and believes himself to be not bound by any laws, a Javier Bardem-in-No Country For Old Men kind of person, if you will.

Additionally, a CIA lawyer has put to rest Hayden's ridiculous concern that the tapes were destroyed to protect the identities of the agents involved. There are ample ways to blur out faces or obscure identities, he said, plus they were in the hands of the CIA the entire time, and "If a tape is not safe in the CIA, we’re in trouble."

The 9/11 Commission is weighing in as well, claiming that the tapes were withheld from them prior to their destruction. This is almost the harmonic convergence of Bush Administration secrecy, because so many different groups, including Congress, independent panels like the 9/11 Commission with the force of law, and even the courts have been stonewalled. In the case of the 9/11 panel, the administrators are looking to see whether the CIA violated federal law.

A seven-page memorandum prepared by Philip D. Zelikow, the panel’s former executive director, concluded that “further investigation is needed” to determine whether the C.I.A.’s withholding of the tapes from the commission violated federal law.

In interviews this week, the two chairmen of the commission, Lee H. Hamilton and Thomas H. Kean, said their reading of the report had convinced them that the agency had made a conscious decision to impede the Sept. 11 commission’s inquiry.

What may not pan out is the court case that some thought would pry open more documents into further view.

A federal judge appeared reluctant Friday to investigate the destruction of CIA interrogation videotapes while the Justice Department is conducting its own inquiry.

U.S. District Judge Henry H. Kennedy is considering whether to delve into the matter and, if so, how deeply. The Bush administration is urging him to back off while it investigates.

"Why should the court not permit the Department of Justice to do just that?" Kennedy asked at a court hearing.

Can I answer that? Because they're hopelessly partisan and implicated in the investigation at the highest levels?

It's very unclear where all of this is going. My goal would be to see Addington forced out of the shadows.

WH Lawyers Discussed Torture Tapes, Including Abu Gonzales And David Addington!

The latest bombshell in the torture tapes case shows once again that the first explanation from the Bush Administration is never, ever the correct one.

At least four top White House lawyers took part in discussions with the Central Intelligence Agency between 2003 and 2005 about whether to destroy videotapes showing the secret interrogations of two operatives from Al Qaeda, according to current and former administration and intelligence officials.

We knew about Harriet Miers, but the article also names John Bellinger (the senior lawyer for the NSC at the time), Alberto Gonzales and Cheney's brain David Addington. While the reporters don't exactly know what was said, they strongly imply that the White House lawyers, and by association the White House, wanted the tapes dumped in the Potomac.

It was previously reported that some administration officials had advised against destroying the tapes, but the emerging picture of White House involvement is more complex. In interviews, several administration and intelligence officials provided conflicting accounts as to whether anyone at the White House expressed support for the idea that the tapes should be destroyed.

One former senior intelligence official with direct knowledge of the matter said there had been “vigorous sentiment” among some top White House officials to destroy the tapes. The former official did not specify which White House officials took this position, but he said that some believed in 2005 that any disclosure of the tapes could have been particularly damaging after revelations a year earlier of abuses at Abu Ghraib prison in Iraq.

Some other officials assert that no one at the White House advocated destroying the tapes. Those officials acknowledged, however, that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal.

Let me have one wild guess who wanted the tapes destroyed: Addington. He's not too interested in constraints on his own power. And Gonzales would go along with whatever his minders told him. This also means that the top official at the Justice Department was privy to discussions about the destruction of physical evidence implicating the federal government in major violations of international law, and said nothing. Because of course, he was knee-deep in it himself.

Keep in mind that the Justice Department is now the agency investigating this.

The sources in the story also throw a couple other CIA lawyers under the bus.

The current and former officials also provided new details about the role played in November 2005 by Jose A. Rodriguez Jr., then the chief of the agency’s clandestine branch, who ultimately ordered the destruction of the tapes.

The officials said that before he issued a secret cable directing that the tapes be destroyed, Mr. Rodriguez received legal guidance from two C.I.A. lawyers, Steven Hermes and Robert Eatinger. The officials said that those lawyers gave written guidance to Mr. Rodriguez that he had the authority to destroy the tapes and that the destruction would violate no laws.

The agency did not make either Mr. Hermes or Mr. Eatinger available for comment.

This lines up perfectly with Rodriguez' defense as stated later in the article by his lawyer Robert Bennett. What it means for the purposes of the investigation is that there is even more of a paper trail than at first believed. Add it on to this known communication.

Newsweek reported this week that John D. Negroponte, who was director of national intelligence at the time the tapes were destroyed, sent a memorandum in the summer of 2005 to Mr. Goss, the C.I.A. director, advising him against destroying the tapes. Mr. Negroponte left the job this year to become deputy secretary of state, and a spokesman for the director of national intelligence declined to comment on the Newsweek article.

There's going to be a federal court hearing this week about the destruction of the tapes, so the timing of this article is pretty clear. As much as Mukasey wants to obstruct judicial or Congressional review over this situation, he cannot dictate the terms by which other branches of government conduct themselves, nor can he stop the drip-drip-drip of revelations that sink the White House further and further into complicity.

This is the second demonstrable lie from the Bush Administration this week, and it's only Tuesday night. Yesterday we learned that Bush knew about the Iran NIE intel months before he claimed he did. Tonight, it's that the White House was heavily involved in the discussions over whether to destroy these tapes and obstruct justice.