Special Prosecutor

WaPo sez:

Attorney General Eric H. Holder Jr. has decided to appoint a prosecutor to examine nearly a dozen cases in which CIA interrogators and contractors may have violated anti-torture laws and other statutes when they allegedly threatened terrorism suspects, according to two sources familiar with the move.

Holder is poised to name John Durham, a career Justice Department prosecutor from Connecticut, to lead the inquiry, according to the sources, who spoke on condition of anonymity because the process is not complete.

Durham's mandate, the sources added, will be relatively narrow: to look at whether there is enough evidence to launch a full-scale criminal investigation of current and former CIA personnel who may have broken the law in their dealings with detainees. Many of the harshest CIA interrogation techniques have not been employed against terrorism suspects for four years or more.

Durham's been handling the investigation over the destruction of the torture tapes, which hasn't yielded much information to date. Obama is trying to stay as far away from this as possible; his spokesman's statement is "The White House supports the attorney general making the decisions on who gets prosecuted and investigated."

The narrowness of this investigation, focused on only the CIA personnel who colored outside the lines set down by moral lepers John Yoo and Jay Bybee, is reprehensible. If it only extends that far, we're seeing a replay of the Abu Ghraib investigation which sent Lynndie England to jail but let those who authorized and directed the abuse free with nary a warning. Basically, Holder is following the Office of Professional Responsibility report, which recommended that they reopen about a dozen prisoner-abuse cases, some of which include murders. I hold no brief for the CIA personnel who engaged in this, but confining the mandate to the low men and women on the totem pole will do nothing to chill the potential for such abuse to happen again. If any old lackey in the Office of Legal Counsel can write up an opinion essentially validating torture, and they become de facto legal as long as those using the guidelines follow them generally, we don't really have a rule of law anymore. And future Presidents will easily discern the loophole in the system.

However, just the possibility of prosecuting individuals who did, after all, break the law, is enough for establishmentarians like Leon Panetta to reportedly threaten resignation. And the Durham investigation, in the end, is up to John Durham. He can be given a mandate, but Eric Holder has said in the past that he cannot circumscribe an investigation so much as to effectively immunize certain individuals. If the small fish flip, Durham, like any prosecutor, can find out who authorized their actions. And that can lead to the Bush White House.

I think Panetta, and the CIA in general, are probably more angered by the Obama Administration taking some of their responsibilities away, like giving the White House oversight through the National Security Council over the "High-Value Detainee Interrogation Group." (That task force, by the way, unanimously determined that the Army Field Manual shall be the ultimate parameter when questioning suspects.) This is probably more of a turf war than anything.

But maybe, just maybe, CIA - particularly its Bush-era holdovers - know that an investigation, once started, is hard to stop or rein in.

We still have the CIA Inspector General report coming today as well.

...First bit of new news from the IG report (haven't seen the report online anywhere yet):

A newly declassified CIA report says interrogators threatened to kill the children of a Sept. 11 suspect.

The document, released Monday by the Justice Department, says one interrogator said a colleague had told Khalid Sheikh Mohammed that if any other attacks happened in the United States, "We're going to kill your children."

Another interrogator allegedly tried to convince a different terror suspect detainee that his mother would be sexually assaulted in front of him - though the interrogator in question denied making such a threat.

I don't know if such a threat went "above and beyond" the Yoo-Bybee memos, so I'm glad we're saving investigations for only the really bad stuff.

...I now have Atty. Gen. Holder's statement. I think it pretty much speaks for itself. Note that it says nothing about those who authorized detainee abuse, which also possibly means that they are not shielded from review. And realize, of course, that even this hedged, incomplete investigation is likely to launch the shitstorm to end all shitstorms from the Village:

“The Office of Professional Responsibility has now submitted to me its report regarding the Office of Legal Counsel memoranda related to so-called enhanced interrogation techniques. I hope to be able to make as much of that report available as possible after it undergoes a declassification review and other steps. Among other findings, the report recommends that the Department reexamine previous decisions to decline prosecution in several cases related to the interrogation of certain detainees.

“I have reviewed the OPR report in depth. Moreover, I have closely examined the full, still-classified version of the 2004 CIA Inspector General’s report, as well as other relevant information available to the Department. As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter. I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.

“Assistant United States Attorney John Durham was appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. During the course of that investigation, Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand. Accordingly, I have decided to expand his mandate to encompass this related review. Mr. Durham, who is a career prosecutor with the Department of Justice and who has assembled a strong investigative team of experienced professionals, will recommend to me whether there is sufficient predication for a full investigation into whether the law was violated in connection with the interrogation of certain detainees.

“There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nation’s intelligence community. I could not disagree more with that view. The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.

“I share the President’s conviction that as a nation, we must, to the extent possible, look forward and not backward when it comes to issues such as these. While this Department will follow its obligation to take this preliminary step to examine possible violations of law, we will not allow our important work of keeping the American people safe to be sidetracked.

“I fully realize that my decision to commence this preliminary review will be controversial. As Attorney General, my duty is to examine the facts and to follow the law. In this case, given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take.”

...Reps. Conyers and Nadler:

“I applaud the Attorney General’s decision to appoint a special US Attorney to review the interrogation abuse cases that were rejected for prosecution by George Bush’s Justice Department,” said Conyers. “The Obama Administration also deserves praise for the release of the 2004 CIA Inspector General report as well as related DOJ memos. These materials are truly disturbing, including the CIA’s basic conclusion that ‘unauthorized, improvised, inhumane, and undocumented detention and interrogation techniques were used’ in its program. Reading about misdeeds such as threats to kill a detainees’ children or the staging of mock executions leaves us appalled.

“Today’s release -- even of these still heavily redacted materials -- is thus an important step toward restoring the rule of law in this country, and rebuilding our credibility around the world. But much more remains to be done. The gruesome acts described in today’s report did not happen in a vacuum. It would not be fair or just for frontline personnel to be held accountable while the policymakers and lawyers escape scrutiny after creating and approving conditions where such abuses were all but inevitable to occur.

“I have long believed that Department rules require a special counsel to review the entire interrogation program to determine if any crimes were committed. An independent and bipartisan commission should also be convened to evaluate the broader issues raised by the Bush Administration’s brutal torture program.”

“The CIA Inspector General’s report on interrogation practices under the Bush administration is a disturbing record of abuse that details why this must never happen again and why action on the part of the Justice Department is essential,” said Nadler. “Today’s news that the Attorney General has listened to our many requests and is poised to appoint a special counsel is very much welcome. I applaud the Attorney General for this first step. But, we must go further. As I have said for many months, it is vital that this special counsel be given a broad mandate to investigate these abuses, to follow the evidence where it leads, and to prosecute where warranted. This must be a robust mission to gather any and all evidence without predetermination of where it may lead. Seeking out only the low-level actors in a conspiracy to torture detainees will bring neither justice nor restored standing to our nation.”

Great Except The Gray Areas

Obama is following through on his promises. He is closing the Guantanamo prison and restricting the interrogation tactics used by the CIA. Before we get to the details, on the top line this is great news.

President Barack Obama is ready to issue orders on Thursday to close Guantanamo prison and overhaul the treatment of terrorism suspects, in a swift move to restore a U.S. image hurt by charges of torture.

A draft executive order obtained by Reuters on Wednesday sets a one-year deadline to close the controversial U.S. military prison at Guantanamo Bay, Cuba, where foreign terrorism suspects have been detained for years without trial.

Obama, who was sworn in as president on Tuesday, is expected to issue the order on Guantanamo on Thursday. He will also ban abusive interrogations and order a review of detention policies for captured militants, said congressional aides and a White House official [...]

"It's exactly the kind of bold action that is necessary," said Elisa Massimino, executive director of the Human Rights First advocacy group. "Both the speed and the content will send a clear message to our own people and the rest of the world that what he said ... he meant." [...]

Another presidential order would ban CIA use of "enhanced" interrogation methods by making all U.S. agencies abide by the Army Field Manual, which bans techniques such as waterboarding, a form of simulated drowning the CIA says was used on three terrorism suspects.

Outgoing CIA chief Michael Hayden has defended the harsh techniques and called the Army manual too restrictive but says the agency would abide by limitations. The CIA declined comment on the reports.

Obama is also expected to order a review of all U.S. detention policies.

Obama is really setting a bad precedent of keeping campaign promises and abiding by the rule of law. It's like the oath of office reboot, setting the horrible precedent of acknowledging mistakes and seeking to rectify them. Who does this guy think he is?

Aides sent around the draft order on Guantanamo today, and I think my favorite part is "the individuals currently detained at Guantánamo have the constitutional privilege of
the writ of habeas corpus." 1300 years of Western law restored in one sentence.

The rest of the details look fairly good. They'll essentially either try or release detainees, although there's this gray area of "other disposition" which needs to be clarified. With people like Marty Lederman now telling the President what they can and cannot do, I'm hopeful that this won't turn into a loophole. But it won't be for lack of trying by those who want to demagogue the issue.

GRAHAM: I do believe we can close Gitmo, but what to do with them? Repatriate some back to other countries makes sense, if you can do it safely. Some of them will be tried for war crimes. And a third group will be held indefinitely because the sensitive nature of the evidence may not subject them to the normal criminal process, but if you let them go, we’ll be letting go someone who wants to go back to the fight. … So we’ve got three lanes we’ve got to deal with: Repatriation, trials, and indefinite detention.

Indefinite detention is inconsistent with the Constitution and international law, as well as the stated rights granted under habeas corpus. And it cannot be allowed as a "third way" here. I think that civil liberties groups understand this and will be vigilant in ensuring that detainees be only tried or released. I can warm to the idea that this process will take up to a year (especially given the state of the evidence, which is haphazard at best according to prosecutors), but there have to be bright lines. Here's Anthony Romero, putting it much more diplomatically than I would.

"This is the first ray of sunlight in what has been eight long years of darkness, of trampling on America's treasured values of justice and due process. The order is remarkable in its timing and its clear intent to close down Guantánamo and unequivocally halt the Bush administration's shameful military commissions. While the order leaves some question as to how some detainees will be released or prosecuted, we trust that's not President Obama's intent and hope that any ambiguity is due to the fact that this order was done on day one in record time. We are confident that President Obama understands that indefinite detention without trial must end once and for all and that detainees should be either prosecuted in a federal court or, if there is no evidence against them, released or transferred to countries where they will not be tortured. Our centuries-old justice system is well-equipped to handle these cases, and it's a great relief to finally have a president who is committed to upholding American values and the rule of law. Although we have a long road ahead to get to an America we can be proud of again, change has begun."

I'm confident that the ACLU will keep pushing for justice. And while they're at it, they ought to trust but verify on torture. The most recent report before today's news that Obama would bring the CIA under the Army Field Manual included a "loophole" that would allow torture in extreme cases.

However, Obama's changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said. They said the intent is not to use that as an opening for possible use of waterboarding, an interrogation technique that simulates drowning.

That's completely unacceptable and would be counter-productive. In addition, even if the entire government is brought under the Army Field Manual, we're STILL not done. As bmaz notes, even techniques allowable under the AFM can be combined in a fashion to effectively torture.

This is where Susan Crawford's stark admission comes into play. As Crawford admits, most all of the techniques used on al-Qahtani were actually permissible, but the layering of techniques compounded them into unmistakable torture.

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani's health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

Crawford has exposed to bright sunlight the lie that is Barack Obama's, and other politicians', simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions.

It could be that this is the "loophole" sought by Obama advisers, to allow the combination of certain techniques. Appendix M of the Army Field Manual may allow this latitude. That would need to be excised so that there is no ambiguity about the complete end to the torture regime.

Overall, we have an excellent set of proposals here, but the gray areas need to be filled in with the ideals of justice. President Obama said that the rule of law "will be a touchstone of my Administration". He has every opportunity to prove it.

...more hints that extra-legal interrogation processes may be allowed. Don't defend it, don't mend it, just end it, Mr. President. Most Americans support you banning torture.

What's It Gonna Be, Maverick?

(bumped)

This kind of came out of nowhere yesterday.

Tomorrow, the Intelligence Authorization Conference Report will come to the Senate floor. Section 327 of the bill establishes one interrogation standard for the entire U.S. government. This would effectively end torture by requiring that the intelligence community abide by the standards articulated in the Army Field Manual.

In order to attempt to block the ban on torture, Republicans may filibuster the bill or raise a point of order, claiming the torture provision violates the rules of the Senate. If the Parliamentarian agrees, we will be forced to try and waive the point of order. Either way we need 60 votes.

Already some Republicans have signaled they will side with us - however we need more.

Now is the time to take a stand against torture.

There's a petition at the link, but ideally this would have come up after an week or so of debate, rallies on the Capitol Steps, etc.

This is useful, however, because of the Republican nominee for President. John McCain has been "outspoken" on the subject of torture. He authored the amendment that supposedly "banned" torture, until Bush authored a signing statement invalidating it. He's made a lot of pretty talk about how torture is wrong, drawing on his own experience. Well, now he can prove it. He can take the floor today and vote to put the intelligence community under the same rules as the military, abiding by the Army Field Manual.

As an example, he could write to the President, the leader of his party, something like Hillary Clinton did yesterday:

Senator Hillary Rodham Clinton today called on President Bush to remove his threat to veto the Fiscal Year 2008 Intelligence Authorization Bill, which applies the U.S. Army standards for interrogation to U.S. intelligence agencies and contractors, and bans the practice of waterboarding. In a letter to the President, Senator Clinton urged him to live up to the standards that America has promoted around the world.

“Our nation and our President must strongly and unequivocally stand for the rule of law—especially when we are under threat from an enemy that embodies the antithesis of our values,” Senator Clinton wrote. “In the process of accomplishing what is essential for our security, we must hold onto our values and set an example we can point to with pride, not shame.”

It's really pretty simple. The White House is comparing these trials of terror suspects to the trials at Nuremberg. Yet they used torture to gather the evidence that will be used in these trials, the same kind of torture that was PROSECUTED at Nuremberg. If John McCain has any free thought left, he would make the obvious choice and vote to restore moral authority in this country, and vote to ban waterboarding and any other form of torture.

So what will he do?

My money's on him skipping the vote.

UPDATE: Just to show that I'm not reflexively opposed to everything Dianne Feinstein does, she is on the floor of the Senate right now leading the fight on this issue, and it looks like she'll get passage in the Senate on this today. That's very significant.

UPDATE II: McCain just voted no. Mr. Straight Talk, Mr. Maverick, Mr. "Torture is Wrong," just voted against banning torture. So did Warner and Scottish Haggis Specter. Susan Collins, Olympia Snowe, Chuck Hagel and Gordon Smith voted with all the Democrats but Ben Nelson. It's going to pass but not with a veto-proof majority... final vote is 51-45.

Sanity Breaking Out All Over

This is encouraging:

House and Senate negotiators working on an intelligence bill have agreed to limit CIA interrogators to techniques approved by the military, which would effectively bar them from using such harsh methods as waterboarding, congressional aides said Wednesday.

Members of the House and Senate intelligence committees decided to include the ban while working out differences in their respective bills authorizing 2008 spending for intelligence programs, according to the aides, who spoke anonymously because the negotiations were private. Details of the bill are to be made public Thursday.

That will set the stage for another veto fight with President Bush, who last summer issued an executive ordered allowing the CIA to use "enhanced interrogation techniques" that go beyond what's allowed in the 2006 Army Field Manual.

Fight Bush. Make the Republicans cast a vote for torture. Expose them.

Why I say that sanity is breaking out all over is that I'm including this deal on freezing mortgage rates that actually might (gasp!) help some people.

The Bush administration has hammered out an agreement to freeze interest rates on certain subprime mortgages for five years to combat an escalating number of home foreclosures, congressional aides said Wednesday.

The aides, who spoke on condition of anonymity because the details have not been released, said the five-year moratorium was a compromise between desires by banking regulators for a time frame of up to seven years and mortgage-industry arguments that the freeze should last only one or two years.

Another person familiar with the matter said the rate freeze would apply to borrowers with loans made from Jan. 1, 2005, through July 30 of this year with rates that are scheduled to rise between Jan. 1, 2008, and July 31, 2010.

"Fixing the reset period is an important action, and it's good that everyone now seems to be pushing in the same direction," said Michael Barr, a professor at the University of Michigan Law School.

It's a stopgap, but anything that allows some homeowners a little relief from predatory lending is a positive step.

And...

A new agreement between the Pentagon and the State Department gives the military in Iraq more control over Blackwater Worldwide and other private security contractors.

The agreement was signed Wednesday at the Pentagon by Deputy Defense Secretary Gordon England and Deputy Secretary of State John Negroponte, whose department uses Blackwater to guard its diplomats. It spells out rules, standards and guidelines for the use of private security contractors.

The agreement also says contractors will be accountable for criminal acts under U.S. law. That partly clarifies what happens if a contractor breaks the law, but leaves the details to be worked out with Congress.

If I didn't know any better, I'd say we had a functioning government that responds to challenges.

UPDATE: It should be noted that the deal to freeze subprime rates should only effect about 12 precent of all borrowers in distress. That's better than 0%, but is insufficient to deal with the crisis. Atrios thinks it won't do a damn thing. I maybe jumped the gun.