Whining All The Way

The very manly Republicans on the Senate Intelligence Committee, blessed with the manliest of manliness, have decided to take their toys and go home rather than participate in a probably-toothless study of the CIA torture program, because they're so personally hurt that anyone could be held responsible for lawbreaking.

Republicans on the Senate Select Committee on Intelligence said Friday that they will no longer participate in an investigation into the Bush administration's interrogation policies, arguing that Attorney General Eric H. Holder Jr.'s decision to reexamine allegations of detainee abuse by the CIA would hobble any inquiry [...]

"Had Mr. Holder honored the pledge made by the President to look forward, not backwards, we would still be active participants in the Committee's review," the ranking Republican on the intelligence panel, Sen. Christopher S. Bond of Missouri, said in a statement. "What current or former CIA employee would be willing to gamble his freedom by answering the Committee's questions? Indeed, forcing these terror fighters to make this choice is neither fair nor just."

"Terror fighters." That premieres right after 24 on Fox this fall, right? (It's certainly not going to be on after Law And Order.)

I suppose another word you could use in place of "terror fighters" is "murderers," but that would be grossly uncouth and would cause a run on fainting couches in Washington, particularly in the Republican caucus.

I will say that the bravery on display by these Republicans, not seen since the times of Sir Robin, is truly inspiring. They know just how to treat allegations of wrongdoing - with the most studied indifference and, if necessary, outright ignorance. They make me proud to be an American.

The only problem with their strategy is that others will not forget so easily. There are multiple court challenges and civil suits and investigations and FOIA requests. I suppose the defense attorneys in these cases can take the example of the Senate GOP and walk out of the proceedings, but it's unlikely to have the same impact.

I think the next step for Kit Bond and his charges will be to write a minority report, refuting whatever comes from the committee investigation and pressing for expanded CIA powers to, I don't know, pull the fingernails out of suspects in the name of fighting terror. Watch for who leads that minority report authoring, it may be important later.

But there were dissenters. A number of House Republicans on the committee cheered Colonel North on. One who led the way was Dick Cheney of Wyoming, who praised Colonel North as “the most effective and impressive witness certainly this committee has heard.”

Mr. Cheney the congressman believed that Congress had usurped executive prerogatives. He saw the Iran-contra investigation not as an effort to get to the bottom of possible abuses of power but as a power play by Congressional Democrats to seize duties and responsibilities that constitutionally belonged to the president.

At the conclusion of the hearings, a dissenting minority report codified these views. The report’s chief author was a former resident fellow at the American Enterprise Institute, Michael J. Malbin, who was chosen by Mr. Cheney as a member of the committee’s minority staff. Another member of the minority’s legal staff, David S. Addington, is now the vice president’s chief of staff [...]

The report made a point of invoking the framers. It cited snippets from the Federalist Papers — like Alexander Hamilton’s remarks endorsing “energy in the executive” — in order to argue that the president’s long-acknowledged prerogatives had only recently been usurped by a reckless Democratic Congress.

Above all, the report made the case for presidential primacy over foreign relations. It cited as precedent the Supreme Court’s 1936 ruling in United States v. Curtiss-Wright Export Corporation, which referred to the “exclusive power of the president as the sole organ of the federal government in the field of international relations.”

History, the report claimed, “leaves little, if any doubt that the president was expected to have the primary role of conducting the foreign policy of the United States.” It went on: “Congressional actions to limit the president in this area therefore should be reviewed with a considerable degree of skepticism. If they interfere with the core presidential foreign policy functions, they should be struck down.”

Maybe they'll just dust off that old report and replace "Iran-Contra" with "torture" and be done with it.

The Not-About-Torture Torture Investigation

I hope that the self-serving call from past CIA Directors that members of the organization for which they served shouldn't be investigated for murder isn't the motivating factor for this odd article from anonymous DoJ sources assuring everyone that their investigation into CIA interrogation practices are limited:

The Justice Department's review of detainee abuse by the CIA will focus on a very small number of cases, including at least one in which an Afghan prisoner died at a secret facility, according to two sources briefed on the matter. . . .

Among the cases under review will be the death seven years ago of a young Afghan man, who was beaten and chained to a concrete floor without blankets, according to the sources. The man died in the cold night at a secret CIA facility north of Kabul, known as the Salt Pit. . . .

Although earlier reports indicated that [prosecutor John] Durham would look into 10 cases, a source said recently the number is much smaller. . . . A senior official who took part in the review confirmed that of two dozen referrals, the Salt Pit episode was one of two or three cases close to being considered for criminal indictment. . . .

Two other detainee cases were among those that drew significant law enforcement attention: the death by suffocation of Iraqi Gen. Abed Hamed Mowhoush in November 2003, after which an Army officer was convicted; and the death the same month of Manadel al-Jamadi at Abu Ghraib prison, in the custody of the CIA, where he was placed after being beaten by Navy SEALs.

While I agree that murder is a serious offense, the investigation was sold as a torture investigation, looking into serious violations of international conventions and federal statute. This is apparently even too much for these CIA Directors or many others in the establishment. But it doesn't keep with the mandate of an Attorney General whose country is a signatory to a convention that demands investigation and prosecution of torture. If true, this would be disturbing.

Of course, nobody should be prosecuted for torture or anything else because they've had it too tough already:

Of course, when all is said and done, there is little doubt that some CIA detainees were tortured. This is a stain on our nation's honor that should never be repeated. But the responsibility was so widely diffused, across such a large number of honorably motivated officials who tried (and sometimes failed) to stay within the law, that it makes no sense to seek to atone for the nation's sins by singling out individuals for bar discipline or other punishment.

This is especially true when those individuals have already suffered greatly from being trashed as "war criminals," picketed at public appearances, stalked by grandstanding Spanish judges, and otherwise harassed across the country and around the globe.

True, being picketed and called names is a heavy burden tantamount to imprisonment. I don't know how John Yoo and Jay Bybee go on in their lifetime-tenured positions.

What's more, these CIA Directors are actually asking for the President to illegally involve himself in the independent work of the Justice Department, a la Richard Nixon and the Saturday Night Massacre.

But what's most notable about this letter is that it is not addressed to the individual charged with making decisions about whether an individual should be prosecuted: namely, the Attorney General of the U.S. Instead, it is addressed to the President himself, and they "urge [him] to exercise [his] authority to reverse Attorney General's August 24 decision to re-open the criminal investigation of CIA interrogations." What so-called "authority" are they talking about?

We've now reached a point where former officials of the American government think the President of the United States should squelch murder investigations. Which probably means that they advised this to Presidents during their tenure.

Wait, look! ACORN!

If this Justice Department doesn't look into this, eventually someone else will. When you torture, main and murder people from all over the world, eventually the repercussions will trickle out. Putting a lid on it would be like putting one on boiling water.

If Accountability Is The Standard

The Dean rides to the rescue of that poor Mr. Cheney in the most predictable way possible. He's been at this forever. I'm surprised he wasn't a John Edwards fan, since he clearly believes in Two Americas, one for the Village and one for everyone else. In 1974, Broderella wrote enthusiastically about the prospect of Nixon beating the impeachment rap and Republicans surging in the midterms. While he lies about that in today's piece, he does admit that he supported Nixon's pardon. He's been covering for Republicans for so long he must feel like an umbrella.

But there's something very interesting, if unintentionally so, in what he says today:

Looming beyond the publicized cases of these relatively low-level operatives is the fundamental accountability question: What about those who approved of their actions? If accountability is the standard, then it should apply to the policymakers and not just to the underlings. Ultimately, do we want to see Cheney, who backed these actions and still does, standing in the dock?

"If accountability is the standard." Nice.

Broder, of course, takes the wrong lesson from this, arguing that the country couldn't take such an assault on cherished criminals like Dick Cheney, and as long as everybody promises to never, ever do it again, we need to bind up our wounds and move forward. But he's giving voice to what many of us have been saying - that low-level interrogators are not ultimately responsible for an illegal policy, and that criminal culpability demands a response from the justice system. That Attorney General Holder has indemnified anyone who got a legal scribbling authorizing torture, in effect privileging the legal memos as legal regardless of what they say, is completely outrageous. Accountability should indeed apply to the policymakers. Hey, Dean Broder, don't bogart our argument!

That isn't just wrong, it's outrageous. It ratifies the most toxic aspect of the whole legal war on terror: that anything becomes permissible if it's served up with a side of memo. Paper your misconduct with footnotes and justifications—even after the fact—and you can do as you please. Prosecution of those who strayed beyond the new rules, without considering the culpability of those who strayed in creating the new rules, would mean that in America, a law degree amounts to a defense. Rep Jerry Nadler, D-N.Y., put it this way earlier this month when he warned that it makes no sense to prosecute the guy who used 8 ounces of water to water-board but not the lawyer who said it was OK to water-board someone with 3 ounces of water. We must either look into both sides of the post-9/11 legal breakdown or neither. The alternative is the same kind of scapegoating that occurred after Abu Ghraib [...]

The American legal system isn't just about crime and punishment. It's a set of guideposts to direct us in the future and to send a message about our values to the rest of the world. This proposed Holder-Durham regime of semi-accountability—we're sorry for that whole torture thing but not sorry enough to investigate seriously how it happened in the first place—serves the dangerous dual purpose of allowing us to reinstate the Bush-era torture rationales, should they be necessary again in the future, and advising our allies and enemies that under desperate circumstances, they can plausibly do the same. Opting to be only halfway responsible means that torture is, going forward, only halfway reprehensible. Ta-Nehisi Coates says, "I really have no doubt that we could—indeed would—start torturing again, in the event of another terrorist attack." If we don't dismantle the foundations of the torture regime, he'll be right.

It's a pretty good rule of thumb that, if Alberto Gonzales supports your torture investigation, it's not a very good torture investigation.

This would be the reason that the prescription should not be just to "fix" everything and move forward, without providing accountability - full accountability - for those who thought they could get a permission slip to violate federal and international law and get useful idiots like David Broder to hold them harmless. The very real threat to the country lies in the breakdown of the rule of law, not the restoration of it. And it might make the authorizers and the CIA sad and gloomy, and lower their morale, but that's precisely the point. In general people ought to be deterred from breaking the law; that's what makes them think twice about doing it. If investigating and prosecuting torture has a chilling effect, that's probably because it's supposed to. Kind of the basis of the entire criminal justice system, but if you want to dismantle that for everybody, at least shoplifters and petty thieves would be on a level playing field with those who murdered prisoners in custody.

At least Broder isn't quite the monster of his "liberal" colleague Richard Cohen, who follows up his "only a fool, or a Frenchman" classic with a robust defense of torture, including a note of how Judith Miller's imprisonment was "a wee bit of torture" and closing with the image of the smoldering World Trade Center. Pitted against that shamefulness, Dean Broder's practically a civil liberties absolutist.

...my 1,000-odd words, Tom Tomorrow's six panels. He wins.

Clearly A Political Move

I didn't bother to watch Dick Cheney's Traveling Emporium and Snake Oil Sales Extravaganza on Fox News Sunday, mainly because I knew that pro-torture Chris Wallace and the whole pro-torture team over there would treat it like a fanzine fluff piece. Wallace's hourlong fellatio session probably satisfied Cheney immensely, and predictably, the other networks saw fit to publicize Little Dick and his concubine, because what a former Vice President says is automatically news! News! News! Don't you remember all those prime-time slots for Walter Mondale, Dan Quayle and Al Gore recently?

In this case, there was some news made, although not of the variety that's being reported. First of all, Cheney, who appears to think that the Bush White House functioned under the auspices of the law, believes that the Attorney General of the United States is a political appointee. I'm sure that, in the case of Alberto Gonzales, that was true. It's not how the American system works, of course.

The president is the chief law enforcement officer in the administration. He’s now saying, well, this isn’t anything that he’s got anything to do with. He’s up on vacation on Martha’s Vineyard and his attorney general is going back and doing something that the president said some months ago he wouldn’t do [...] Well, I think if you look at the Constitution, the president of the United States is the chief law enforcement officer in the land. The attorney general’s a statutory officer. He’s a member of the cabinet.

Fourthbranch would have been the world's best Revolution-era Tory. He truly believes in the divine right of kings. Witness later in the interview, where he in his capacity as chief law enforcement officer of the United States decides to toss out the law books.

WALLACE: Do you think what they did, now that you’ve heard about it, do you think what they did was wrong?

CHENEY: Chris, my sort of overwhelming view is that the enhanced interrogation techniques were absolutely essential in saving thousands of American lives, in preventing further attacks against the United States, in giving us the intelligence we needed to go find al Qaeda, to find their camps, to find out how they were being financed. … It was good policy. It was properly carried out. it worked very, very well.

WALLACE: So even these cases where they went beyond the specific legal authorization, you’re okay with it.

CHENEY: I am.

Worked so well, in fact, that CIA and military interrogators killed dozens of detainees in their custody. But what's a little torture and murder when you're talking about saving lives? Oh, and Cheney's answer is a lie, but that's redundant.

Perhaps the most absurd thing about Fourthbranch, and also what gets him through the night, I would gather, is how he actually thinks his Administration has a good record on counter-terrorism.

I seem to recall the Bush/Cheney era a little differently. Cheney thinks it was a sterling success when it came to national security and counter-terrorism. Perhaps there's something to this. After all, except for the catastrophic events of 9/11, and the anthrax attacks against Americans, and terrorist attacks against U.S. allies, and the terrorist attacks against U.S. troops in Iraq and Afghanistan, and Bush's inability to capture those responsible for 9/11, and waging an unnecessary war that inspired more terrorists, and the success terrorists had in exploiting Bush's international unpopularity, the Bush/Cheney record on counter-terrorism was awesome.

After the previous administration established a record like that, President Obama didn't ask Cheney for tips? The nerve.

You see what Cheney is doing here. He wants to politicize the Bush terror policies - the investigations being sought by the Attorney General are "clearly a political move," he says - so that any attempt to question them becomes a partisan food fight instead of simply the application of law. This is his metier and he does it very well, judging from all the attention he receives every time he emerges from the bunker. Conservatives, ever on the lookout for victimization, cry that the Justice Department is being all political by investigating torture and murder, and the media cover the ping-pong match.

But they do more than that. They print fallacious articles that continue to muddy the waters, still trying to determine if torture "worked" (using anonymous sources and expertly cherry-picked information), and declare themselves unable to read the unbiased evidence that shows the opposite of Cheney's blathering.

And thus, the public is confused. About torture.

Bravo, Fourthbranch.

...Also, Cheney won't cooperate with any "improper" investigation. A Justice Department-directed investigation. You know, "fuck you" and all that.

The New Rendition

In addition to the other goodies, the release of documents describing the CIA's involvement in Bush-era war on terror programs includes a shocking look at "extraordinary rendition":

The CIA’s lurid description of rendition — which hasn’t yet been reported — describes in clinical detail a process where the detainee is “securely shackled” before being “deprived of sight and sound through the use of blindfolds, earmuffs, and hoods” enroute to a “Black Site.” His “head and face are shaved” and a series of photos are taken “while nude.”

The description of rendition is contained in a document that the ACLU obtained as part of its big FOIA request and posted online late last night. It’s an 18-page fax from the CIA to the Department of Justice in December 2004, and looks like a response to a request by Justice for more info about the CIA’s treatment of “high value detainees,” or HVDs.

The document says the CIA’s rendition procedure is designed to ensure that the capture of a HVD helps create a “state of learned helplessness and dependence” that will facilitate the interrogation process.

The description of “rendition” begins on page three of the document, and describes the process this way:

a. The HVD is flown to a Black Site. A medical examination is conducted prior to the flight. During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods.

There is no interaction with the HVD during this rendition movement except for periodic, discreet assessments by the on-board medical officer.

b. Upon arrival at the destination airfield, the HVD is moved to the Black Site under the same conditions and using appropriate security procedures.

The procedures, according to the memo, have a dramatic impact on the detainee. It says the process “creates significant apprehension” in the detainee “because of the enormity and suddenness of the change in environment, the uncertainty about what will happen next, and the potential dread” the detainee “might have of U.S. custody.”

What's described is basically the total breakdown of the individual. They mean to condition the detainee into a state of helplessness, through a variety of techniques, including sleep deprivation, slapping, "walling," stress positions, water dousing, and other things, which when delivered in tandem has been identified as a form of torture.

And we're still basically doing this, though not to our own black sites but third-party countries.

The Obama administration will continue the Bush administration’s practice of sending terrorism suspects to third countries for detention and interrogation, but pledges to closely monitor their treatment to ensure that they are not tortured, administration officials said Monday.

Human rights advocates condemned the decision, saying that continuing the practice, known as rendition, would still allow the transfer of prisoners to countries with a history of torture. They said that promises from other countries of humane treatment, called “diplomatic assurances,” were no protection against abuse.

“It is extremely disappointing that the Obama administration is continuing the Bush administration practice of relying on diplomatic assurances, which have been proven completely ineffective in preventing torture,” said Amrit Singh, a lawyer with the American Civil Liberties Union, who tracked rendition cases under President George W. Bush.

Asking the countries pretty please not to torture (with a wink and a nod attached, I'm sure) is just simply unacceptable. I give leeway when a prisoner is taken into custody and to a trial, but kidnapping people with insufficient evidence and handing them to countries known to torture so we don't have to get our hands bloody does not play. It continues the dispiriting legacy of the Obama Administration with respect to civil liberties that only gets occasionally disrupted with better news.

Filling In The Blanks

ABC has some news on what was inside those blocks of redacted text in the CIA Inspector General report:

The CIA and the Obama Administration continue to keep secret some of the most shocking allegations involving the spy agency's interrogation program: three deaths and several other detainees whose whereabouts could not be determined, according to a former senior intelligence official who has read the full, unredacted version.

Of the 109 pages in the 2004 report, 36 were completely blacked out in the version made public Monday, and another 30 were substantially redacted for "national security" reasons.

The blacked-out portions hide the Inspector General's findings on the circumstances that led to the deaths of at least three of the detainees in the CIA's program, the official said. Two of the men reportedly died in CIA in Iraq and the third died in Afghanistan.

The Inspector General's findings about a fourth death involving a prisoner in Afghanistan were made public in the report. A CIA contract employee was convicted of assault in that case and is now in prison.

The still-secret portions of the Inspector General's report also describe fears that the waterboarding of 9/11 mastermind Khalid Sheik Mohammed came close to killing him. Mohammed was waterboarded 183 separate times, according to the report.

The unredacted version of the report makes a reference to the "unsafe" nature of waterboarding but makes no mention of its actual effects on Mohammed or the two others who were subjected to the technique.

Again, much of this is not new information. We know quite a bit about deaths in American custody. They made an Academy Award-winning movie about one of these deaths. We've known for several months that the Bush regime suddenly changed their policies on waterboarding to require a medical doctor and a tracheotomy kit, suggesting that they were well aware of the dangers of the technique. The Bradbury memo from 2005 describes what appears to be a near-death experience on the waterboard:

In our limited experience, extensive use of the waterboard can introduce new risks. Most seriously, for reasons of physical fatigue or psychological resignation, the subject may simply give up, allowing excessive filling of the airways and loss of consciousness. An unresponsive subject should be righted immediately and the interrogator should deliver a sub-xyphoid thrust to expel the water. If this fails to restore normal breathing, aggressive medical intervention is required. Any subject who has reached this degree of compromise is not [censored hereafter].

Abu Zubaydah has admitted that he lost consciousness on at least one occasion during waterboarding.

Later on in the report, ABC describes how the CIA flat-out lost detainees in its maze of black sites:

Also hidden from public scrutiny, according to the official, was the discovery by the CIA Inspector General that the CIA could not adequately account for several of the 100 al Qaeda suspects who were part of the detainee program that the CIA maintained had been well administered.

The official said "a few just got lost and the CIA does to know what happened to them."

Other detainees, said the official, were transferred to other countries and their whereabouts are still unknown. In other cases, "incomplete records" were to blame for the failure to account for the detainees' status after leaving the program.

As the report says later, Hassan Ghul is one such "missing" detainee, and his name inadvertently showed up in an OLC memo released earlier this year, the first acknowledgement that the CIA even had him in custody. He either got transferred to a third party or simply got lost in the shuffle.

These were the serious adults in charge of your safety.

Maybe it's fine that these revelations have to get uncovered over and over and over again. But it would be nice if the Administration simply came clean and acknowledged what everyone already knows, that American interrogators murdered detainees in their custody. He's being opportunistic, but Pete frickin' Hoekstra agrees with all this:

The ranking Republican on the House Intelligence Committee, Rep. Pete Hoekstra (R-MI), said he thinks more of the CIA's blacked out information should be made public. "If the sections of the report don't talk about sources and methods, at this point in time, my bias would be toward transparency and toward releasing more information." Hoekstra, who has read the unredacted version of the CIA report, said he could not comment on its contents.

Since most of this material is already out, the repeated discovery of it just leads to further outrage around the world and at home. This is a cover-up where everyone already knows the crime.

The Darkest Of The Dark Sides

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Keith Olbermann talks with Jane Mayer in this clip about the release of the CIA IG report and the preliminary investigation into some of the worst practices of the torture regime. She talks about how the IG report reads like "a crime scene," foregrounding the idea that the architects of the policy at CIA were warned in this 2004 report and repeatedly thereafter that their agency would be in deep legal trouble for continuing these actions, and yet they kept justifying them and/or actually engaging in them for years afterward. Nobody took the warnings seriously, knowing both the makeup of the Justice Department and the Presidency at that time, and perhaps banking on how Washington would view these efforts, as part of the past and best kept their, given the Establishment culpability for torture.

Here's just a few of the facts of what CIA interrogators did in our name, just the ones that come from this IG report, as masterfully summarized by Glenn Greenwald:

• Threats of execution, using semi-automatic handguns and power drills
• Threats to kill detainee and his children
• Threats to rape detainee's wife and children in front of him
• Restricting the detainee's carotid artery
• Hitting detainee with the butt end of a rifle
• Blowing smoke in detainee's face for five minutes
• Multiple instances of waterboarding detainees, of the type we prosecuted Japanese war criminals for using:
• Hanging detainee by their arms until interrogators thought their shoulders might be dislocated
• stepping on detainee's ankle shackles to cause severe bruising and pain
• choking detainee until they pass out
• dousing detainee with water on cold concrete floors in cold temperatures to induce hypothermia
• killing detainees through torture techniques, whether accidental or not
• putting detainee in a diaper for days at a time to live in their own filth

On that last point, Digby notes that this could have been used in tandem with another technique we know about, the use of forced enemas, a particularly degrading technique, part and parcel of the humiliations heaped on prisoners that were psycho-sexual in nature. A lot of these stem from misreadings of books like Raphael Patai's "The Arab Mind," which presumed a host of dubious generalizations about Muslims and their predispositions, all of it willingly lapped up by neoconservatives willing to believe that their opponents were somehow subhuman. As if anyone would react favorably to being made to live in their own shit. These stereotypical projections that manifested themselves in essentially an allowance for torturing brown-skinned people have dangerous and deadly repercussions.

But whatever Patai's intentions, the kind of thinking he engaged in does have real-world consequences, ones that reverberate far beyond the walls of Abu Ghraib. In their recent book "Occidentalism" (Penguin), Ian Buruma and Avishai Margalit argue that a reciprocal negative stereotype of the West has arisen in the Arab world, one that holds that the West is licentious, amoral, overly sexualized, aggressive, and engaged in a crusade against Islam. Buruma and Margalit trace this stereotype back to thinkers of the Western counter-Enlightenment, but events like the abuse at Abu Ghraib, in which soldiers reportedly not only raped prisoners but forced them to eat pork and drink alcohol, suggest that an Occidentalist worldview has sources much closer at hand, in the actual experience of domination.

In the wake of the Iraq war, mutually reinforcing Occidentalist and Orientalist stereotypes have contributed immeasurably to the fear and apprehension that divides Islam and the West. It should be observed that the human rights violations that took place in Abu Ghraib would have been no less horrific had they taken place in Madison, Wis. But the explosiveness of the situation makes them far more dangerous as we enter an era where each side defines the other only by its worst excesses. Rather than plumbing some mythical "Arab mind," we should affirm the shared humanity that transcends our differences and binds us all together.

Because of the reliance on stereotypes, the lack of factual information and the pressure from the top to come up with any information in the early post-9/11 period, this all led to "unauthorized, improvised, inhumane and undocumented" being used repeatedly and in violation of multiple federal laws and international conventions. None of them made Americans safer, in fact many of them probably made the country less safe, and all of them were decidedly illegal, debasing and severely damaging to our moral capability. We have made a mockery of the presumption that in America, the law is king. Now a generation of torture-loving conservatives believe that the ends justify any means, up to and including murder.

They don't. And as soon as you begin to have an argument over torture's effectiveness, the argument is immediately lost. But it's worth noting that Dick Cheney, the Great Dissembler, claimed for months that documents would show the how torture worked in saving lives, and yet, while those documents were released along with the IG report, as Mayer says none of the information contained in them prove Cheney's hypothesis.

OLBERMANN: What about Mr. Cheney's assessment that there would be documents that prove that torture worked where traditional and legal interrogation did not or would not. Is there anything in those documents that were released today that supports that contention?

MAYER: Well, the documents that I've seen, and maybe I'm missing something, but so far, I am amazed at how little support there is for the things that Vice President Cheney has been saying. There is nothing but a mass of claims that they got information from this individual and that individual, many from KSM, who apparently has been the greatest fount of information for them, but there's absolutely nothing saying that they had to beat them to get this information. In fact, as anybody knows who knows anything about Khalid Sheikh Mohammed, he was dying to tell the world, when he was interviewed by Al Jazeera before he was in US custody, about everything he knew and everything he did. He was proud of his role as the mastermind of 9/11. He loves to talk about it. So there's no evidence that I see in this that these things were necessary. I spoke to someone at the CIA who was an advisor to them who conceded to me that "We could have gotten the same information from tea and crumpets."

OLBERMANN: Or buying a copy of the Al Jazeera interview.

The Cheney documents were deliberately created at the time to rebut both this CIA Inspector General report recommending prosecutions, and the heat put on by Congress about allegations of torture. They were actually conceived to deceive people into believing that torture works, an irrelevant point at best. And yet these same memos do not support Cheney's claims. They say that certain individuals gave up information, but only after questioned through traditional means, which was happening contemporaneously to the torture. It is impossible to say definitively, therefore, which information came as a result of what techniques.

And yet, not only has traditional media largely ignored the fact that the documents do not support Cheney's claims (which were given tons of media attention previously), but an extremely carefully worded statement by Cheney, stating that "The documents released Monday clearly demonstrate that the individuals subjected to Enhanced Interrogation Techniques provided the bulk of intelligence we gained about al Qaeda" - which says nothing of WHAT techniques caused this intelligence to be gleaned - has been taken completely at face value by reporters, in particular CNN, which ran Cheney's comments as facts:

Cheney says documents show interrogations prevented attacks

Former Vice President Dick Cheney says documents released Monday support his view that harsh interrogation techniques used on terrorism suspects prevented attacks and yielded crucial information about al Qaeda.

A simple read of the documents shows this to be completely untrue. Jane Mayer, as expert a journalist on this subject as anyone, calls them unsupportable. But too many reporters just write down these things and run with them, the facts be damned. It's part of a disturbing pattern, as Digby says:

If you have followed the torture revelations over the years, you can't help but be just a tad disillusioned by the fact that the mainstream media acts over and over again as if they were born yesterday and each time these stories are validated it's as if it's the first time they've heard it.

We already know they tortured. We know that DOJ bureaucrats illegally approved the torture on Dick Cheney's request and we know that a bunch of unprofessional, untrained interrogators complied and then went beyond even what was approved. We know that innocent people were tortured and we know that prisoners were killed. We've known all this for a long time. The question is not what happened, it's whether anyone will be held accountable for it.

On that point, here's Jane Mayer talking about the Durham investigation, actually hopeful about what it may find:

MAYER: Well, my guess is that if they actually open some kind of serious investigation, and Durham is said to be a very serious prosecutor, that even if they start at the very bottom, it's going to keep leading up and up through the chain of command. Because, if nothing else, if they actually bring charges against anybody at the CIA who was at the bottom of the food chain, the first thing that person's going to do is say "I was authorized, let me tell you what my orders were." So they've begun a process that could lead to the top.

OLBERMANN: Well, if it works along the Archibald Cox lines, as I analogized last week, where they've supposedly circumscribed it, but people want to get out from the scapegoat for the whole operation, then I think your assessment is correct.

We know that none of the torture here happened by happenstance, but through a directed policy emanating from the top. Instead of prosecuting "bad apples" who were young MPs on the night shift in Baghdad, we're talking about mid-level career CIA. They aren't dupes, and they know how to shift the attention up the chain of command. I don't think these interrogators will live with being the scapegoats. It may take some time, but we really could see some legitimate accountability here. And I hope so - because otherwise this will remain a black mark that can never wash out.

The Incredible Shrinking Investigation

Marcy Wheeler doesn't think John Durham has the juice to effectively probe the Bush torture regime:

As I said in my panel at Netroots Nation, we'll know a lot about whether Holder intends to do a real investigation, or just a whitewash investigating the Lynndie Englands, by the stature of the prosecutor he names. And while Durham is already neck deep in the investigation of torture on the torture tapes, he doesn't necessarily have the stature to go after--say--Jim Haynes and John Rizzo for setting up the torture regime.

I guess Holder wasn't that serious about investigating torture after all.

The White House has now weighed in (though with the Press Secretary's office attached, not the President) praising Holder for limiting the scope of the investigation.

The President has said repeatedly that he wants to look forward, not back, and the President agrees with the Attorney General that those who acted in good faith and within the scope of legal guidance should not be prosecuted. Ultimately, determinations about whether someone broke the law are made independently by the Attorney General.

Doesn't seem like much will be gained from this investigation, after all. It'll look good in the papers, though.

By the way, the IG report is out, along with the "Cheney documents," the ones he claim vindicate the use of torture. Of course, the CIA used torture techniques in tandem with other, more traditional interrogation tactics, so it's really impossible to answer Cheney's question, which I find irrelevant anyway, because torture is torture.

As for the IG report, Spencer Ackerman and Marcy Wheeler are documenting the atrocities. What we know so far: the CIA lied to Bybee and Yoo so they could get approval for torture; they shut off the cameras for 21 hours during a waterboarding interrogation; and the torturers were engaging in techniques before being given the verbal OK by higher-ups. That's just a taste.

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.”

To Be Fair, The Gun May Have Not Been Loaded

Remember, as long as interrogators didn't cause organ failure or death everything's fine.

CIA interrogators used a handgun and an electric drill to try to frighten a captured al-Qaeda commander into giving up information, according to a long-concealed agency report due to be made public next week, former and current U.S. officials who have read the document said Friday.

The tactics -- which one official described Friday as a threatened execution -- were used on Abd al-Rahim al-Nashiri, according to the CIA's inspector general's report on the agency's interrogation program. Nashiri, who was captured in November 2002 and held for four years in one of the CIA's "black site" prisons, ultimately became one of three al-Qaeda chieftains subjected to a form of simulated drowning known as waterboarding.

The report also says that a mock execution was staged in a room next to one terrorism suspect, according to Newsweek magazine, citing two sources for its information. The magazine was the first to publish details from the report, which it did on its Web site late Friday.

A federal judge in New York has ordered a redacted version of the classified IG report to be publicly released Monday, in response to a lawsuit by the American Civil Liberties Union. Since June, lawyers for the Justice Department and the CIA have been scrutinizing the document to determine how much of it can be made public. Attorney General Eric H. Holder Jr. has been weighing the report's findings as part of a broader probe into the CIA's use of harsh interrogation methods.

Got the Newsweek story right here. The interrogators of al-Nashiri clearly wanted him to think he would be shot, and in the other case, penetrated with a power drill, if he didn't give up the information they sought. The report also describes mock executions, in other words, gunshots going off in the rooms next door, making the prisoners believe they were killing others and they may be next. And look at this, "A federal law banning the use of torture expressly forbids threatening a detainee with imminent death."

Well, since when have federal laws amounted to anything in this crazy world? Especially if you can get some bureaucrat to sign off on it:

Three months before Nashiri's capture, the head of the Justice Department's Office of Legal Counsel -- Jay S. Bybee, now a federal judge -- advised the CIA in an August 2002 memo that threats of "imminent death" were not illegal unless they deliberately produced prolonged mental harm. Independent legal experts have called that interpretation too hedged and thus too lax.

The CIA's excuse, of course, is that they didn't engage in any behavior that "went beyond formal guidance." Which isn't true, according to those familiar with the IG document - there's apparently an entire section listing violations by CIA interrogators. But the formal guidance, from hollowed-out souls like Bybee, was itself illegal. And we have documentary evidence of that beyond this IG report. Al-Nashiri was one of the suspects waterboarded by the CIA, as well as one of those who had his interrogation sessions taped. The CIA destroyed the torture tapes, but at a Netroots Nation panel an ACLU lawyer stated that there are written transcripts of these sessions which have been hidden from the public.

Not only will we get a chance to read all the gory details of this next week, but the "Cheney documents" will be on display as well:

At the same time the administration releases the inspector general's report, it is also expected to release other CIA documents that assert the agency collected valuable intelligence through the interrogation program. For months, former vice president Dick Cheney has called for these documents to be released. However, a person familiar with the contents of the documents says that they contain material that both opponents and supporters of Bush administration tactics can use to bolster their case. The Senate Committee on Intelligence is now conducting what is supposed to be a thorough investigation of the CIA's detention-and-interrogation program. The probe is intended not only to document everything that happened but also to assess whether on balance the program produced major breakthroughs or a deluge of false leads.

So we'll get a back and forth about whether torture saves lives, which each side cherry-picking their own set of facts (incidentally, the IG report concludes that the interrogations were "not effective"). But none of this strikes to the heart of the matter - we tortured. Torture is illegal. The ends don't justify the means in any legal sense. And those who authorized, directed and engaged in torture should be prosecuted. In fact, the current Administration violates the law with each day they fail to do so.

New York Congressman Jerry Nadler, a senior Democrat on the House Judiciary Committee, told the Huffington Post that he believed that President Obama would be breaking the law if he decided to oppose launching investigation into the authorization of torture.

"If they follow the law they have no choice," Nadler said in an interview this past weekend.

The logic, for Nadler, is straightforward. As a signatory of the convention against torture, and as a result of the anti-torture act of 1996, the United States government is obligated to investigate accusations of torture when they occur in its jurisdiction.

The alternative, Nadler said, "would be violating the law. They would be not upholding the law; they would be violating it."

This will flare up every few weeks until justice is done. And with each passing day, trust in the President slips.

Oh, The Things They Did

So let's take a quick break from calling Obama Hitler to have a look at his predecessor. Anything new coming out?

Doop-de-do... hey, look, turns out they hired mercenaries to carry out extra-judicial assassinations!

The Central Intelligence Agency in 2004 hired outside contractors from the private security contractor Blackwater USA as part of a secret program to locate and assassinate top operatives of Al Qaeda, according to current and former government officials.

Executives from Blackwater, which has generated controversy because of its aggressive tactics in Iraq, helped the spy agency with planning, training and surveillance. The C.I.A. spent several million dollars on the program, which did not successfully capture or kill any terrorist suspects.

The fact that the C.I.A. used an outside company for the program was a major reason that Leon E. Panetta, the C.I.A.’s director, became alarmed and called an emergency meeting in June to tell Congress that the agency had withheld details of the program for seven years, the officials said.

It's the perfect Bush-era blend of privatization and murder.

Also, I think we know how Blackwater mercenaries react in situations where they are given guns and a measure of freedom - that would be Nissour Square. I guess we should be happy the "Blackwater in Your Corner" campaign only reached the formative stages.

So, anything else? Hmm... here's confirmation from Tom Ridge of something we knew all along!

Among the headlines promoted by publisher Thomas Dunne Books: Ridge was never invited to sit in on National Security Council meetings; was “blindsided” by the FBI in morning Oval Office meetings because the agency withheld critical information from him; found his urgings to block Michael Brown from being named head of the emergency agency blamed for the Hurricane Katrina disaster ignored; and was pushed to raise the security alert on the eve of President Bush’s re-election, something he saw as politically motivated and worth resigning over.

Obviously, this is Ridge's book, and he gets to set the history. But I don't think you could escape the sneaking suspicion that, every even-numbered year in the age of Bush, suddenly we were told about "chatter" from terrorists and definitive plans and the raising of the alert level. I used to call it the Federal Even-yeared Anti-Terror Response, or FEAR, Unit.

Can Ridge apologize now for saying in 2004 "We don't do politics at the Department of Homeland Security"?

My, what a trip down memory lane this morning...

...Marc Ambinder calls pattern recognition "gut hatred of Bush", admits his skepticism about politicized terror alerts was wrong, but at least he wasn't a hippie about it. This guy should be fired for admitting that.

But he's a card-carrying Villager, so he'll be promoted.

...Wow.

Osama bin Laden had released a videotape with one more ominous sounding but unspecific threat against the United States. Neither Mr. Ridge nor any of the department’s security experts thought the message warranted any change in the nation’s alert status.

“…at this point there was nothing to indicate a specific threat and no reason to cause undue public alarm,” he writes.

But that view met resistance in a tense conference call with members of the intelligence community and several other Cabinet officers including Attorney General John Ashcroft and Defense Secretary Donald Rumsfeld.

“A vigorous, some might say dramatic, discussion ensured. Ashcroft strongly urged an increase in the threat level and was supported by Rumsfeld.”

Noting the correlation found between increases in the threat level and the president’s approval rating, Mr. Ridge writes, “I wondered, ‘Is this about security or politics?’”

No wonder Ridge didn't run for Senate.

But The CIA Never Lies

A federal judge basically excoriated the CIA yesterday, finding it guilty of deception in the least surprising ruling ever. Spies deceive?

A federal judge has ruled that government officials committed fraud while defending a lawsuit brought by a former DEA agent who accused a CIA operative of illegally bugging his home.

In rulings unsealed Monday, U.S. District Chief Judge Royce C. Lamberth wrote that he was considering sanctions against five current and former agency lawyers and officials, including former director George J. Tenet, for withholding key information about the operative's covert status.

The rulings, issued in recent months, highlighted what the judge called fraudulent work by CIA lawyers in defending a suit that Lamberth said had a lengthy and "twisted history." Brought in 1994 by DEA agent Richard A. Horn, the suit alleged that the CIA illegally bugged his residence in Rangoon, Burma, while he was serving in the country [...]

In an order issued Monday, Lamberth ordered Yeates, Brown, Tenet and three current or former CIA lawyers -- John Rizzo, Robert J. Eatinger and A. John Radsan -- to file court documents explaining why he should not sanction them for the government's conduct. Attorneys for the officials and lawyers declined to comment or could not be reached. CIA spokesman George Little said the agency "takes seriously its obligations to U.S. courts."

Horn's attorney, Brian C. Leighton, said Lamberth's rulings showed that the CIA was trying to "cover up wrongdoing."

And Lamberth even accused new CIA Director Leon Panetta of lying to the court.

But the CIA never lies.

bmaz has more.

Reyes Goes After Intelligence Oversight

House Intelligence Committee chair Silvestre Reyes will seek an investigation into the CIA's hiding of operations from the Congress:

After careful consideration and consultation with the Ranking Minority Member and other members of the Committee, I am announcing an official Committee investigation into possible violations of federal law, including the National Security Act of 1974.

“This investigation will focus on the core issues of how the congressional intelligence committees and Congress are kept fully and currently informed. To this end, the investigation will examine several issues, including the program discussed during [CIA] Director [Leon] Panetta’s June 24th notification and whether there was any official decision or direction to withold information from the Committee.

Note "including the program discussed." The alleged assassination squad should be seen as the latest example of the CIA acting without oversight, not the only one. The National Security Act is pretty clear about oversight responsibilities of intelligence operations, and it's been abused time and again. The Obama Administration doesn't want to change the "Gang of Eight" style of briefing, but Democrats are seeking more transparency for their members. Marcy Wheeler notes this as well:

First, Reyes says he consulted with Crazy Pete Hoekstra. I look forward to seeing how Crazy Pete spins this.

That'll be particularly interesting given the scope here. The investigation will include the reported assassination squad. But the core issue is more general--how CIA informs Congress. Which means that, in fact, this should also include whether or not CIA fullly briefed Pelosi and Goss on torture back in 2002.

Finally, the investigation will examine whether there was any "direction" to withhold information from Congress. I do hope they look at the question generally, as well as in the context of the reported assassination squad, because I suspect we'd see a pattern of Cheney instructing the Counterterrorism folks to lie to or withhold information from Congress.

The big question here is how far up the ladder they'll reach. But it's time to end the broken system of intelligence oversight and start again, and this investigation can be a catalyst.

Up With Chuck

Earlier this week, Chuck Todd made a tiresome argument about how investigations into lawbreaking in the Bush Administration would be politicized and therefore shouldn't be done because it would distract the nation from the important business of whittling health care down to nothing. Todd decided to respond to Glenn Greenwald's criticism of his opinions on this matter, and the result was a fairly remarkable conversation that offers a window into the mind of the typical Villager, unable to divorce anything from political day-to-day combat, unable to view anything through something other than a partisan lens, unable to determine right from wrong. The one question that Todd fails to answer throughout the interview is why believers in the rule of law are supposed to care about how investigations and/or prosecutions of members of the Bush Administration make certain people inside the Beltway feel. Here's just a sample, but the whole thing goes like this, so give it a read:

GG: Let me ask you this question: The United States is a party to a treaty - I don't know if you ever read it or not, it's called the Convention Against Torture - and one of the things it does is it obligates all signatories to the treaty to prosecute any acts of torture. And it was signed by Ronald Reagan in 1988, and when he transmitted that treaty to the Senate, explaining what that treaty does, he wrote, quote, "Each state party is required either to prosecute torturers who are found in its territory, or to extradite them to other countries for prosecution."

Do you think the U.S. should be bound, is bound by that treaty? And, I want to ask you: with regard to the question of whether or not we follow that treaty, why do you describe that as nothing more than, quote "cable catnip".

CT: Alright. The "cable catnip" comment was this. This issue, whenever you see the words Cheney and intelligence pop up, and when I use the phrase 'cable catnip', it is when something becomes, whether the two polarized parts of our political society, are very entrenched in their views on this, and believe the other side is completely irrational on it. And so, that's, whenever you have an issue like that, that's what I describe as 'cable catnip'. Because it becomes something that is easy to put on television, because you can find a left versus right, which is something that cable embraces to a fault, and I'm in this business but I'm, I work my butt off trying to stay out of the left versus right fights and try to stay analytical and stay on the reporting end of things.

And so, that's when I describe an issue as cable catnip. I am not sitting here and saying - and I respect the passion on this, and I don't want to somehow sit here saying that on the right I've been accused of somehow just assuming that our national security is nothing more than cable catnip, or that torture of detainees is somehow relegated to cable catnip. That is not what I'm describing when I say cable catnip, but I want to put that aside.

To go back to your question, of course, any treaty we sign, the United States government is obligated to stand by it. Now, the controversy has been, and what we're trying to figure out - and what I think where the Justice Department is trying to figure out, and where this whole debate has been about - is whether they found a legal way to somehow abide by this treaty or not.

GG: And isn't that--

CT: ...abiding by the treaty--

GG: And isn't the best thing to do to immunize that question from political considerations is to say to a prosecutor, the way that we do with every other accusation of crime: take a look at the pure legal issues here, ask: "were crimes committed; is this the kind of case that indictments are appropriate for, where people should be put on trial," and then just have this be treated like every other accusation of crime, which is the prosecutor taking a look?

CT: I agree, in a perfect world - Glenn, in a perfect world, yes. And if you could also guarantee me, that this wouldn't become a show trial, and wouldn't be put, and created so that we had nightly debates about it, that is the ideal way to handle this.

GG: Why not? What's wrong with nightly debate about whether our government committed crimes?

CT: Because then it becomes, then you do politicize the issue, to the point of where you won't - the fact is, public opinion was on the opposite side of the argument as you. That doesn't mean public opinion should...

Mr. Todd "respects the passion" but cannot divorce the plain fact of law, in the Convention Against Torture, from the media back and forth. Then there's the idea that the Bush Administration "found a legal way" to somehow abide by the treaty. In other words, as long as they find a functionary - every Administration has their own John Yoo - to bless their actions, they can break the law in virtually any way they want. A permission slip from the Office of Legal Counsel, no matter how flawed the reasoning, can enable violations of the spirit, color and the plain fact of the law.

Todd talks about a perfect world as if those who demand accountability and justice are just wild-eyed idealists who don't understand the hard-bitten truth of how the world works. On the contrary, we know how it works, and we find it to be a problem. We understand that the Administration would be reluctant to wade into the actions of their predecessor. We get that the media will try to block holding top officials accountable by bemoaning the partisanship that they put on display every night. We get that the right would have a screaming hissy fit against whoever dared to investigate or prosecute one of their own. We understand that the entire dynamic in Washington is wired to prevent holding any member of any Administration to the same standard as someone in Poughkeepsie who committed a crime.

We just have a problem with it.

If Todd has his way, we will hear more stories - like the tale of a CIA Supervisor bragging about using fire ants on a detainee - of perfidy, that scar us around the world, and we will just move along.

Digby has more thoughts

Not Buying It

Jeremy Scahill raises objections to the Democrats' anger over a secret CIA program to allegedly assassinate Al Qaeda leaders.

Partisan politics often require selective amnesia. Over the past decade, we have seen this amnesia take hold when it comes to many of President Bush's most vile policies. And we are now seeing a pretty severe case overtake several leading Democrats. It makes for good speechifying to act as though all criminality began with Bush and -- particularly these days -- Cheney, but that is extreme intellectual dishonesty. The fact is that many of Bush's worst policies (now being highlighted by leading Democrats) were based in some form or another in a Clinton-initiated policy or were supported by the Democrats in Congress with their votes. To name a few: the USA PATRIOT Act, the invasion of Iraq, the attack against Afghanistan, the CIA's extraordinary rendition program, the widespread use of mercenaries and other private contractors in US war zones and warrant-less wire-tapping.

Regarding the Bush-era assassination program, there is great reason to be skeptical that the program CIA Director Leon Panetta alleges was concealed from Congress is actually the program the public is currently being led to believe it is. Why would the CIA need to conceal a program that never was implemented and, if it never was implemented, why did Panetta need to shut it down? Moreover, who was running this inactive program from the minute Obama was sworn in until June 24 when Panetta supposedly announced its cancellation? This program -- as it is currently being described -- should hardly be a major scandal to members of the House and Senate Intelligence Committees, as some are now treating it. As they well know, President Obama has continued the Bush targeted assassination program using weaponized drones and special forces teams hunting "high value targets." As former CIA Counter-terrorism chief Vincent Cannistraro and others have pointed out, "The CIA runs drones and targets al Qaeda safe houses all the time." Cannistraro told Talking Points Memo that there is no important difference between those kinds of attacks and "assassinations" with a gun or a knife.

Except no Democrat has actually talked about the nature of the program. They have raised anger at having the secret program concealed from Congress, apparently at the behest of Dick Cheney. But no Democrat has ratified the print media's take that the program in question concerned targeted assassination squads. And these stories just keep on coming. The AP writes that George Tenet cancelled the hit squads, because he found the details problematic. The American Conservative discussed the program and how it ran into trouble in Kenya. The Washington Post fingers the hit squad policy as the one Cheney ordered kept from Congress, saying that it never reached more than an aspirational stage. Then they contradicted themselves on that point today, claiming that CIA officials were about to activate the plan when Leon Panetta found out about it and ordered it terminated. In the same article, Dennis Blair, the Director of National Intelligence, said that the CIA didn't break the law in concealing an aspirational program from Congress, which Jan Schakowsky rebuked, but only on the technical grounds of withholding classified information.

There is no reason to believe, in my view, that this particular program is the same as the one that has raised Congress' ire. There may have been an assassination squad program; it's apparently been reported as far back as 2001. But nobody really knows what program Panetta closed with a flourish and reported to Congress, and those who think they do are either speculating or getting information from unreliable sources. It defies belief that Dick Cheney, on the ropes for ordering the CIA to hide information from Congress, would hide this particular information, in continuity with what past Administrations have done. And it defies belief to think that dozens of sources would come out of the woodwork on Cheney to describe a program of "killing bad guys," which is very favorable to the former Vice President. Nope, this was something bigger. Much bigger.

The Rush To Judgment

Pretty much every news outlet has confirmed that the secret CIA program held from Congress by Dick Cheney concerned targeted assassinations of Al Qaeda members abroad, basically the "executive assassination ring" discussed by Sy Hersh earlier this year.

Dick Cheney, the former vice president, ordered a highly classified CIA operation hidden from Congress because it pushed the limits of legality by planning to assassinate al-Qaida operatives in friendly countries without the knowledge of their governments, according to former intelligence officials.

Former counter-terrorism officials who retain close links to the intelligence community say that the hidden operation involved plans by the CIA and the military to launch operations, similar to those by Israel's Mossad intelligence service, to hunt down and kill al-Qaida activists abroad without informing the governments concerned, even though some were regarded as friendly if unreliable.

The CIA apparently did not put the plan in to operation but the US military did, carrying out several assassinations including one in Kenya that proved to be a severe embarrassment and helped lead to the quashing of the programme.

I'd like to know more about that Kenya incident. Put it this way, when 15 year-old kids who committed no crime other than being valuable to an Afghan warlord seeking a bounty ended up at Guantanamo, I can only imagine what the fever dreams of Dick Cheney led to out in the world.

But something's not right here. Targeted assassinations of heads of state are illegal, President Ford signed that in 1975. But Peter Bergen explains that we have had assassination policies on Al Qaeda since before 9-11 and after.

Peter Bergen, a senior security analyst at the New America Foundation, said that the secret operation must have gone further than that to have created such a backlash in Congress: "If it's an assassination programme of al-Qaida leaders that is hardly surprising. Clinton had an assassination programme against bin Laden. There have been 27 drone missile strikes against al-Qaida alone this year."

It could be the case that Congress is merely upset about not being properly informed, also a crime under the National Security Act of 1947, and not the contents of the program. But two things stick out. It's completely unclear why this action, out of all the others, would be hid by the Bush Administration from Congress. Most terror policies were justified under the concept that we were at war with Al Qaeda, and the executive has broad discretion to carry out the policies he sees fit to protect the nation. I don't agree with the expansiveness of that view, but this kind of assassination ring would fall squarely inside that construct, no? Why would the Bush White House not be afraid to argue that we can torture suspects in the war on terror but terrified to explain that we can take out Al Qaeda safe houses with targeted strikes, the way that the Clinton Administration clearly did in the past? Why would it be so radioactive that Leon Panetta couldn't hear about it for six months after being made CIA Director?

The second thing that bothers me about this is the lightning quickness with which the program has been explained to the press, mostly through unnamed sources. You'd almost think that some members of the Bush Administration wanted to convince the public that their secret program only dealt with killing bad guys. And when I say some members, I mean Dick Cheney.

Bobby Ghosh at TIME has some different information:

But two former ranking CIA officials have told TIME that there's another equally plausible possibility: The program could have required the Agency to spy on Americans. Domestic surveillance is outside the CIA's purview -– it's usually the FBI's job – and it's easy to see why Cheney would have wanted to keep it from Congress.

Both officials say they were never told what was in the program, and that they're only making calculated guesses. But their theory gibes with other reports, quoting ex-CIA officials, that say the program had to do with intelligence collection, not assassinations.

“People may want this to be about hit squads bumping off shady Saudis in Geneva, but that's very unlikely,” says one official. “More likely, it was a plan to spy on some suspicious American citizens or organizations, without telling the FBI.”

A third CIA official who is familiar with details of the program says it was deemed unworkable and cancelled in 2004. It is not clear when or why the program was revived as a possibility, but it never got very far from the drawing board, as Republican Congressmen who received a confidential briefing about it by CIA Director Leon Panetta said.

The Cheney Administration ran so many secret programs that only him and David Addington, in all likelihood, know which program corresponds to which set of briefings or lack of disclosure from Congress. In fact the Inspector General report stated that the wiretapping program had little effectiveness precisely because of all the secrecy. So when every newspaper in the world reports about targeted assassinations within a day of the disclosure of some secret program hid by Cheney, I'm immediately dubious of the information, or rather the disinformation.

One thing is clear - there are potentially tons of unturned out there, unbeknownst to the President and his staff, and these landmines can detonate at really any time, throwing the White House off track. They might want to send in a special prosecutor simply to defuse them.

Balloons All Over

The Washington Post picks up on Newsweek's story about Eric Holder's musing over appointing a special prosecutor and offers some caveats:

Any criminal inquiry could face challenges, including potent legal defenses by CIA employees who could argue that attorneys in the Bush Justice Department authorized a wide range of harsh conduct. But the sources said an inquiry would apply only to activities by interrogators, working in bad faith, that fell outside the "four corners" of the legal memos. Some incidents that might go beyond interrogation techniques that were permitted involve detainees in Iraq and Afghanistan, and are described in the secret 2004 CIA inspector general report, set for release Aug. 31.

Among the unauthorized techniques allegedly used, as described in the report and Red Cross accounts, were shackling, punching and beating of suspects, as well as the waterboarding of at least two detainees using more liquid and for longer periods than the Justice Department had approved. That conduct could violate ordinary criminal laws, as well as the U.N. Convention Against Torture, which the United States signed more than a decade ago [...]

Other challenges an inquiry into alleged torture might face could include the difficulty of gathering evidence of improper conduct in war zones and questions about the reliability of witnesses who may have been held by the U.S. government for years, legal analysts said yesterday. The actions of higher-level Bush policymakers are not under consideration for possible investigation.

I would prefer to see those who authorized and directed the torture investigated than the functionaries carrying it out, and using the Yoo/Bybee memos as settled law raises all sorts of truly despicable outcomes. It teaches future Presidents that, as long as operatives stay within the lines of whatever extreme actions sought by Administration bigwigs and dutifully scribbled by lawyers, they can get away with it, regardless of whether the legal guidelines were authored in bad faith and the underlying actions broke the law.

However, let me split with some saying that this mirrors the Abu Ghraib investigation, which led to the "few bad apples" getting prosecuted but nobody else. Because I'm not convinced that "rogue" CIA officers exist, and a legitimate investigation by a special prosecutor would find tacit if not explicit directions to those officers to use unauthorized techniques. We already know that Alberto Gonzales was dictating techniques to use even before the Office of Legal Counsel memos were drafted. You can circumscribe an investigation before handing it off to the special prosecutor all you want, but if that prosecutor is diligent and honest, he or she will follow the evidence. And I don't think the evidence will show anything resembling a rogue element in the CIA. Just as it didn't in the Abu Ghraib case, by the way, but of course that investigation was handled inside the same Administration that authorized the techniques. I think this is somewhat different.

That said, I do agree with Greenwald on this point:

All other things being equal, individual CIA agents who brutalized detainees, using unapproved methods, ought to be prosecuted. If nothing else, our treaty obligations compel that. Even for a country that has rejected the idea of accountability as resoundingly as we have, it seems inconceivable to decide to prosecute nobody in the face of scores of detainee deaths. How can we know that we tortured to death numerous detainees and do nothing? If you were Eric Holder, would you want that decision attached to your name by history?

But just as was true for the Abu Ghraib abuses, many of the worst instances of detainee abuse cannot be extricated from -- but rather are directly attributable to -- the torture policies authorized at the highest levels of the government. To target low-level interrogators while shielding high-level policy makers would further bolster America's two-tiered system of justice, in which ordinary Americans are subjected to merciless punishment while the most powerful elites are vested with virtual immunity from the consequences of their lawbreaking.

Importantly, no decision has actually been made on this yet, and other reports show that an investigation would not be so carefully circumscribed.

The exact parameters of a special prosecutor’s potential authority remain unclear, as does the name of who might be chosen. Reports suggesting illegal conduct during the Bush years have proliferated and now include well-substantiated allegations of warrantless surveillance, which the Holder Justice Department has struggled to uphold as lawful in the face of increasingly incredulous courts. On Friday, a joint report by the inspectors general of the Defense Department, Justice Department, CIA, National Security Agency and intelligence community revealed that the Bush-era warrantless-surveillance programs were vastly greater in scope than previously disclosed. Director Leon Panetta is reported to have disclosed to Congress that his predecessors had operated a highly secretive program which was not briefed to Congress, in apparent violation of the National Security Act of 1947. The New York Times has also just reported that Congress was not briefed because of orders issued directly by Vice President Dick Cheney. Each of these matters could provide the basis for a special criminal investigation.

For now, however, it appears that Holder’s current decision focuses only on the development of new interrogation techniques and their use at the direction of the Bush administration. Under these terms, the prosecutor would be tasked to look at the role played by Justice Department figures and other government lawyers at various stages of the process; but criminal investigations usually target specific crimes, not individuals, and this would be no exception. The regulations require a "specific factual statement” concerning the matter to be investigated, but drafting such a statement may be difficult. One major issue would be whether the ultimate policy-making echelons in the White House would be affected. One source told me that he would be surprised if Holder “set blinders” on the special prosecutor. Still, the scope of the investigation would clearly be limited to the authorization and use of Bush-era “enhanced interrogation techniques” such as waterboarding, longtime standing, stress positions, and prolonged sleep deprivation. Moreover, President Obama’s assurance to CIA officials who relied on the opinions of government lawyers in implementing these programs, an assurance that Holder himself repeated, would have to be worked in. That suggests that the focus would likely be on the lawyers and policymakers who authorized use of the new techniques.

If the Newsweek article is to be believed, Holder has wanted to kind of spark a grassroots movement to sound the call for investigations so loud that the political class fighting against his desire to appoint a prosecutor could not be ignored. I'm all for that, but Holder must know that he should not set parameters and allow the special proseuctor he appoints to follow the evidence.