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

Just off the press from the New York Times:

A high-level Spanish court has taken the first steps toward opening a criminal investigation against six former Bush administration officials, including former Attorney General Alberto R. Gonzales, on whether they violated international law by providing a legalistic framework to justify the use of torture of American prisoners at Guantanamo Bay, Cuba, an official close to the case said.

The case was sent to the prosecutor’s office for review by Baltasar Garzon, the crusading investigative judge who indicted the former Chilean dictator Augusto Pinochet. The official said that it was “highly probable” that the case would go forward and could lead to arrest warrants.

I would call this a big deal. As the report notes, Garzon indicted Augusto Pinochet, which led to his arrest and extradition. This would not immediately lead to arrest and trial, but it would certainly confine the six officials to the United States and increase the pressure for stateside investigations. Spanish courts have "universal jurisdiction" over human rights abuses, under a 1985 law, particularly if they can be linked to Spain.

In the case against the former Bush administration officials, last week Judge Garzon linked it to an earlier case in which he indicted five former Guantánamo Bay prisoners who were citizens or residents of Spain. The Spanish Supreme Court had overturned a conviction of one of them, saying that Guantánamo was “a legal limbo” and no evidence obtained under torture could be valid in any of the country’s courts.

The complaint was filed by a Spanish human rights group, the Association for the Dignity of Prisoners, to the National Court, which assigned the case to Judge Garzon. After the complaint is reviewed by the prosecutor, a criminal investigation would be likely to begin, the official said. If the case proceeds, arrest warrants could still be months away.
The 98-page complaint, a copy of which was obtained by The New York Times, was prepared by Spanish lawyers who have also relied on legal experts in the United States and Europe. It bases its case on the 1984 Convention Against Torture, which is binding on 145 countries including the United States.

The six officials in the inquiry are:

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

The amount of material connecting these six to the creation, authorization and direction of state-sanctioned illegal torture, based on perverse and discredited reasoning, is voluminous, and given the record of Garzón, I would imagine this will lead to arrest warrants.

This story shows once again the growing global unease with the implicit policy of the United States to conveniently forget the torture and other abuses of the Bush regime. In England, police are investigating whether British intelligence officers knew about and prolonged the torture of Binyam Mohamed, the recently released Guantanamo detainee. As Glenn Greenwald notes, other countries have not abandoned their commitment to the rule of law.

As The Guardian reported, the British Government was, in essence, forced into the criminal investigation once government lawyers "referred evidence of possible criminal conduct by MI5 officers to home secretary Jacqui Smith, and she passed it on to the attorney general." In a country that lives under what is called the "rule of law," credible evidence of serious criminality makes such an investigation, as The Guardian put it, "inevitable." British Prime Minister Gordon Brown has clearly tried desperately to avoid any such investigation, yet as The Washington Post reported this morning, even he was forced to say in response: "I have always made clear that when serious allegations are made they have got to be investigated."

Wouldn't it be nice if our government leaders could make a similar, extremely uncontroversial statement -- credible allegations of lawbreaking by our highest political leaders must be investigated and, if warranted, prosecuted? In a country with a minimally healthy political culture, that ought to be about as uncontroversial as it gets. Instead, what we have are political leaders and media stars virtually across the board spouting lawless Orwellian phrases about being "more interested in looking forward than in looking backwards" and not wanting to "criminalize public service." These apologist manuevers continue despite the fact that, as even conservative Washington Post columnist Anne Applebaum recently acknowledged in light of newly disclosed detailed ICRC Reports, "that crimes were committed is no longer in doubt."

The end of the NY Times article shows why the US can hardly claim that Spain is acting irresponsibly beyond its own borders and violating the soveriegnty of other nations, because in one recent case we did almost exactly the same thing:

The United States for the first time this year used a law that allows for the prosecution in the United States of torture in other countries. On Jan. 10, a Miami court sentenced Charles Taylor, the former Liberian leader, to 97 years in a federal prison for torture, even though the crimes were committed in Liberia.

Last October, when the Miami court handed down the conviction, Attorney General Michael B. Mukasey applauded the ruling and said: “This is the first case in the United States to charge an individual with criminal torture. I hope this case will serve as a model to future prosecutions of this type.”

So do I.

The Dumbest People Alive

The right's latest hissy fit is truly a stunner. I don't know how they found out about the Addington-Yoo hearing on torture, because it certainly didn't make the news, but somehow this exchange bubbled up to them:

ADDINGTON: As I indicated to the Chairman at the beginning of this thing, I'm not in a position to talk about particular techniques, whether they are or aren't used or could or couldn't be used, or their legal status. And the reasons I give for that, I think if you look at page 9, the President's speech of September 6, 2006, explains why he doesn't talk about particular techniques...

DELAHUNT: Oh I can understand why [the President] doesn’t talk about it.

ADDINGTON: Because you kind of communicate with al Qaeda. If you do — I can’t talk to you, al Qaeda may watch C-SPAN.

DELAHUNT: Right. Well, I’m sure they are watching, and I’m glad they finally have a chance to see you, Mr. Addington.

ADDINGTON: Yeah, I’m sure you’re pleased.

This joke about Addington's famous secrecy is now being held up by the arbiters of discourse on the right, the scared little piddlies, as some example of William Delahunt "inciting Al Qaeda to violence," if you can believe it.

Are these people 6 years old? What is the expected conversation in the caves of Tora Bora:

AL QAEDA #1: My friend, come quickly, check out C-SPAN!

AL QAEDA #2: The cable is working again?

AQ #1: Yes, Waziristan Time Warner came out this morning. Look, it's Addington!

AQ #2: Cheney's Cheney?

AQ #1: Yes, finally we know what he looks and sounds like! We must begin plans for the attack now. Death to America!

AQ #2: Wait... let's exercise caution. We haven't been egged on by a Democratic Senator yet.

(voice of Delahunt offscreen: "I’m sure they are watching, and I’m glad they finally have a chance to see you, Mr. Addington.")

AQ #1: Congressman Delahunt gave the signal!

AQ #2: Release the sleeper cell! Insh'allah!

What pathetic, pathetic people. It'd be nice if they focused on the part where John Yoo wouldn't admit that a President was not allowed to order a prisoner buried alive. But I guess I'm asking too much. Feigned outrage is more their specialty.

Fourthbranch Strikes Again

David Addington today to Rep. Steve Cohen (D-TN):

"Perhaps the best that can be said is that the vice president belongs to neither the executive [branch of government] nor the legislature, but is attached by the constitution to the latter."

The best part was when Cohen said "So he's like a barnacle?" And Addington got all uppity and said "The Constitution is not a barnacle, Congressman!" which showed that, despite the bravado, Addington is a crucially stupid man.

As long as the Constitution is just a piece of paper anyway, I say that everybody gets to be their own branch of government, provided they're attached to the whole in some fashion. I'm going to be attached to the Gretchen Mol branch, rowrr!

Big Picture On Torture

There's quite a remarkable hearing going on today in a House subcommittee. David Addington and John Yoo are voluntarily testifying about the torture practices of the Bush Administration. Thanks to time zones, I didn't get to tune in until the end of the first round of questioning, but I'm getting the feel of it from reports by Spencer Ackerman and at the liveblog on Daily Kos.

It seems like both of them are being evasive but for completely different reasons. Addington ought to be held in contempt of Congress for just plain contemptuousness. As Scott Horton noted on Pacifica's coverage, he clearly believes himself to be smarter than all the Representatives in the room, and he has no problem bullying them around the way he reportedly bullies everyone in the executive branch. He also doesn't mind lying about his role in designing torture tactics after a personal trip to Guantanamo. He essentially said, according to Horton, that the world is very dangerous and the threat is not yet over, implying that Congress had better back down with all the questioning and recognize that absolutely anything can be done in the name of protecting the country. Here's an example:

Addington, naturally, is being legalistic and careful. Can president violate statutes during wartime? "As a general proposition, no, ... but facts matter for a lawyer." Which facts would justify the president violating such a statute? Addington says he won't answer. He's combative, and good. Could self-defense be such a case? "I haven't expressed an opinion... I haven't researched the statute." Says on FISA, "there is a serious constitutional question that Congress might... try to block the president's power."

The President's power, that is, to allow prisoners to be sodomized with a broomstick. The President's power to murder prisoners in US custody. The President's power to hide prisoners from the Red Cross in violation of international law. The President's power, and the power of those around them, to commit war crimes. For your protection. In your name.

"After years of disclosures by government investigations, media accounts and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes," Taguba wrote. "The only question that remains to be answered is whether those who ordered the use of torture will be held to account."

Now Yoo, on the other hand, seems afraid for his life and livelihood. He is trying not to answer any question too fully, is stretching out every answer to run out the clock on the questioners, is debating the meaning of words like "implemented," and is consulting with two lawyers on practically every question. He's trying to explain away the Convention Against Torture and generally throw up enough mud to resist any real answer. He's constantly citing Justice Department guidelines that restrict his testimony, too. Over and over he makes the claim that he was simply a lawyer providing legal advice. Of course, at the Nuremberg trials the precedent was set that lawyers whose advice was used to commit war crimes are culpable in those activities. If the policy is to go to the very limit, and the lawyer sets the limit, then he is creating the policy. Yoo can't wiggle off the hook... at least in an international court of law. The Military Commissions Act of 2006 gave some debatable measure of immunity to most of this crowd for their crimes.

The subcommittee is being very thorough and not taking a lot of bullshit. As the facts about physical and psychological abuse slowly come to light, not only at Abu Ghraib but across all US detention sites, and as we learn more about those who directed the policies that led to this torture, abuse and murder, the policymakers have become more unbridled in investigating these crimes. The grilling of William Haynes - almost made a federal judge for life - at the Senate Armed Services Committee last week showed an unusually strident Carl Levin and his compatriots angered by Haynes' activities. After the Supreme Court asserted in Boumediene that prisoners captured at Guantanamo have the ability to challenge their crimes, we've seen the DC appeals court overrule the Administration on their designation of "enemy combatants," where other prisoners have begun to use their habeas rights to challenge their detentions. The Bush-Cheney policies on interrogation and torture have been discredited by the law and by Congress, and the notion of a "few bad apples" has been totally rejected. As Jerrold Nadler said today:

"It does not go too far to say the reputation of our nation as the leading exponent of human rights and human dignity have been besmirched by this administration [...] I know I speak for many of colleagues when I say that the more we find out about what was done and how it was justified, the more appalled we have become."

None of this, of course, matters to Addington and Yoo, who instead value their radical agenda of executive power and aren't too concerned about the courts and the Congress' opinion. In fact, they're already winning this battle where it counts.

A new poll of citizens’ attitudes about torture in 19 nations finds Americans among the most accepting of the practice. Although a slight majority say torture should be universally prohibited, 44 percent think torture of terrorist suspects should be allowed, and more than one in 10 think torture should generally be allowed.

The findings of the WorldPublicOpinion.org poll put the United States alongside countries like Russia, Egypt and the Ukraine and lagging far behind allies like Great Britain, Spain and France in how its citizens view torture.

The poll found 53 percent of Americans believed all torture should be prohibited; the average in all 19 countries polled was 57 percent.

The Jack Bauer-ization of the torture question, the mainstreaming of cruel and unusual punishment, the ability for the right to demagogue this issue for six years, means that so much of this bipartisan condemnation is coming a little too late. It's nice to hear, but Addington's bullying view has ruled the day for so long that I don't know if we can even get back to a sense of normalcy.

WASHINGTON — A bipartisan group of 200 former government officials, retired generals and religious leaders plans to issue a statement on Wednesday calling for a presidential order to outlaw some interrogation and detention practices used by the Bush administration over the last six years.

The executive order they seek would commit the government to using only interrogation methods that the United States would find acceptable if used by another country against American soldiers or civilians.

It would also outlaw secret detentions, used since 2001 by the Central Intelligence Agency, and prohibit the transfer of prisoners to countries that use torture or cruel treatment. The C.I.A. has allowed terrorism suspects to be taken to such countries.

Among the signers is George P. Shultz, secretary of state under President Ronald Reagan. “It’s a good time to step back, take a deep breath and set a standard,” Mr. Shultz said in an interview.

That would have been a good time in October 2001, before war fever made everybody in Washington a little crazy, and the White House was allowed to take the policies they always wanted to implement off the shelf, using the SERE program designed for our soldiers to resist enemy torture and reverse-engineering it to torture others. We knew in 2001 that torture was ineffective, counter-productive, prone to generating bad intelligence, and would create more terrorists than it would stop terrorist attacks. It's not some grand display of honor to speak out about it now. It's actually more like cowardice.

I appreciate the work of this subcommittee, and after this embarrassment of a President's term ends I would hope that there is a grand inquest into these high crimes. But don't bet on it. And the court of public opinion, the space has already been given to the fearmongers and jingoists to connect torture with saving American lives. The truth, of course, is the opposite.

Showdown At The House Judiciary Committee

Not only did they vote to subpoena David Addington, Cheney's Cheney, about acts of torture authorized inside the White House, but John Yoo has agreed to testify without a subpoena. Doug Feith will be there too, and John Ashcroft. The whole Torture Team is getting back together for one more round of fun.

Maybe they can track down Sami al-Haj and have Addington and his buddies face him.

AMY GOODMAN: Al Jazeera cameraman Sami al-Haj has just been released from Guantanamo Bay. The press freedom group Reporters Without Borders issued a statement Thursday saying Sami al-Haj had been tortured while at Guantanamo and subjected to 200 interrogation sessions. He’s lost forty pounds, is suffering from intestinal problems and bouts of paranoia, according to his lawyer Clive Stafford Smith.

Asim al-Haj, who is Sami al-Haj’s younger brother, told Al Jazeera he doesn’t recognize his thirty-nine-year-old brother, because he now looks like a man in his eighties. We spoke to Asim al-Haj on Thursday night, a few hours before Sami al-Haj landed in Khartoum [...]

SAMI AL-HAJ: [translated] I’m very happy to be in Sudan, but I’m very sad because of the situation of our brothers who remain in Guantanamo. Conditions in Guantanamo are very, very bad, and they get worse by the day. Our human condition, our human dignity was violated, and the American administration went beyond all human values, all moral values, all religious values. In Guantanamo, you have animals that are called iguanas, rats that are treated with more humanity. But we have people from more than fifty countries that are completely deprived of all rights and privileges, and they will not give them the rights that they give to animals.

For more than seven years, I did not get a chance to be brought before a civil court. To defend their just case and to get the freedom that we’re deprived of, they ignored every kind of law, every kind of religion. But thank God. I was lucky, because God allowed that I be released. Although I’m happy, there is part of me that is not, because my brothers remain behind, and they are in the hands of people that claim to be champions of peace and protectors of rights and freedoms.

But the true just peace does not come through military force or threats to use smart or stupid bombs or to threaten with economic sanctions. Justice comes from lifting oppression and guaranteeing rights and freedoms and respecting the will of the people and not to interfere with a country’s internal politics.

If he's not available, maybe Emad al-Janabi can be found.

LOS ANGELES - An Iraqi man sued two U.S. military contractors, claiming he was repeatedly tortured while being held at the notorious Abu Ghraib prison for more than 10 months.

Emad al-Janabi's federal lawsuit, filed Monday in Los Angeles, claims that employees of CACI International Inc. and L-3 Communications Holdings Inc. punched him, slammed him into walls, hung him from a bed frame and kept him naked and handcuffed in his cell beginning in September 2003 [...]

The lawsuit also claims the contractors conspired in a cover-up by destroying documents and other information, hid prisoners during periodic checks by the International Red Cross and misled military and government officials about what was happening at Abu Ghraib.

Al-Janabi was released in July 2004 and wasn't charged with any crime, according to the lawsuit. He also was forced to form a human pyramid in the nude with other prisoners, according to the lawsuit, but his Philadelphia-based attorney Susan Burke said it wasn't known if he was in the infamous photo that became public.

"Most of this conduct was repeated on more than one occasion," Burke said.

There are bound to be dozens of others that the House Judiciary Committee could ring up if these two can't fit the hearing into their busy schedules. It'd be nice for the living consequences of their monstrous policies to be staring this gang in the face.

This Week In Torture

Some notable developments in the torture "debate" this week. Yes, there are some people out there who think that torturing other human beings is up for debate, people like Bill O'Reilly and Justice Antonin Scalia. Oh, and Karl Rove, though he comes down on a side that probably he didn't even envision.

Rove writes, "Another McCain story, somewhat better known, is about the Vietnamese practice of torturing him by tying his head between his ankles with his arms behind him, and then leaving him for hours." So, wait, now putting prisoners in stress positions is torture?

Whoops!

At the beginning of the week, we learned that the Justice Department is perfectly happy with undermining international law with the fig leaf of "fighting terrorism".

The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees [...]

“The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,” said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public.

This is the Scalia argument, that the context of torture somehow matters for its legality. I would like to ask Mr. Originalist, who believes that the words of law are concrete and set in stone, if there is any other law in America or abroad that is mutable based on the context. The answer is pretty much no. And it's the argument of a scoundrel.

But it shouldn't be overlooked that this power is even being discussed due to the Military Commissions Act, which allows for the President to decide whether or not a specific action is in violation of the Geneva Conventions. See Glenn on this and how John McCain enabled this incredible offering of power to the chief executive.

It turns out that there are thousands of other documents relevant to the CIA's use of torture, secret detentions and rendition that the CIA doesn't want to give up, claiming that many are covered by a "presidential communications privilege". And yet later in the week, the White House offered disclosure of additional documents.

In a partial concession to Congressional pressure, the Bush administration agreed on Wednesday to show the Senate and House Intelligence Committees secret Justice Department legal opinions justifying harsh interrogation techniques that critics call torture.

The decision, announced at a Senate hearing where Democrats sharply criticized the administration’s secrecy on legal questions, did not satisfy other members of Congress who have pushed for the documents for several years, notably Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee.

A spokesman for the Justice Department said officials were discussing whether to share part or all the opinions with Mr. Leahy’s panel.

Plus, David Addington, Cheney's Cheney, the Cardinal Richileu of this Administration, after first having said that Congress has no constitutional power to investigate the Vice President's role in authorizing torture, suddenly turned tail and agreed to testify before the House Judiciary Committee.

Today, the Vice President’s office sent a letter to the House Judiciary Committee regarding the Committee’s request for testimony from David Addington, Chief of Staff to the Vice President. The letter is attached.

A committee spokeswoman had the following response: “We acknowledge the Office of the Vice President’s response. Pursuant to their request, we expect the committee to meet next week to authorize a subpoena. We look forward to coming up with a mutually acceptable date for Mr. Addington’s testimony.”

Addington clearly doesn't believe he's wrong about this, and it's unclear whether he's appeared on the record in any public setting. If that hearing goes through, it'd happen in a matter of weeks.

The Senate Intelligence Committee also again banned the CIA from using any techniques not proscribed by the Army Field Manual, from outsourcing torture to private military contractors, and from withholding detainee information from the Red Cross (ending the practice of "ghost detainees").

In the space of a few weeks, there has been a subtle shift on this issue, with some definitive movement. Will it amount to much? The final answer won't come as long as this Administration remains in power - it will come afterwards, in a Democratic Administration, when we discover whether or not Team Torture will be brought to justice and held to account. Until then, we can only keep up the pressure.

The Watchers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We need truth and reconciliation.

A Hiccup At The CIA?

I'm still not convinced that any prosecutor who remains under the chain of command of George Bush's Justice Department is going to be able to carry out a legitimate investigation, no matter how tough and nonpartisan John Durham is. In addition, the fact that the sole focus of the investigation is the destruction of the torture tapes, and not what was on them, seems to be to presage something less than a legitimate probe. But that's not the way it's being received at Langley:

“A lot of people are worried,” says one former CIA official, who asked not to be identified talking about sensitive matters. “Whenever you have the bureau running around the building, it’s going to turn up some heads. This could turn into a witch hunt.” Justice officials say Durham was assigned to investigate the 2005 decision to destroy the tapes—not the activities recorded on them, including the use of waterboarding on Al Qaeda suspects. But at this point, Durham has no formal mandate on the probe's scope, giving him the freedom to expand it if he chooses. "We're going to follow this wherever it leads," says one Justice official, who asked not to be identified discussing an ongoing probe.

One key figure, Jose Rodriguez, the former CIA chief of clandestine services who gave the order to destroy the videotapes, has retained Robert Bennett, a renowned defense lawyer who represented Bill Clinton in the Paula Jones lawsuit. Another potential witness, George Tenet, who was CIA director when the tapes were made, will be represented by former FBI general counsel Howard Shapiro. Roy Krieger, a Washington lawyer who has represented about 100 CIA employees, says that two agency officers have approached him about representation, though neither has retained him yet.

I think the CIA is worried for a different reason. The Bushies have been all too ready to lay all of their problems at the feet of the intelligence community. They twisted the intel on Iraq, and when it turned out to be wrong, blamed the CIA for bad intel. In addition there have been the evidence that CIA agents are at war with Cheney because they aren't willing to go into the abyss toward endless war around the globe. As long as this inquiry is limited to the destruction of the tapes, the DoJ, under the firm gaze of Cheney, can use this investigation to get back at a lot of political enemies at Langley, while also shielding Fourthbranch from his ultimate role in the entire mess:

But with anything related to torture, it's pretty clear the CIA took its orders from Cheney -- via Addington. And how plausible is it that, in his exchanges with the CIA, Addington advised against the tapes' destruction? Or that the CIA would have done it if he had told them not to? Isn't it more likely that he supported the idea, either overtly or with a nod and a wink?

So one has to wonder what will happen if Addington is hauled in front of a grand jury to testify not just about his relevant conversations with the CIA, but about his conversations with Cheney.

"Did you, Mr. Addington, indicate in any way to the CIA that destroying the tapes would be acceptable, or even preferable? Did you do so based on instructions from your boss, the vice president?"

Wouldn't it be interesting to hear Addington answer those questions under oath?

Not likely to happen as long as anyone under the thumb of the executive branch is doing the investigating. But the intelligence agents have reason to be worried. Just ask Mary McCarthy.

How Fourthbranch Works

Newsweek's Michael Isikoff has posted a fascinating interview with J.William Leonard, the head of the National Archives' Information Security Oversight Office (ISOO), which deals with classified documents from the executive branch. He was the major figure in the fight by Dick Cheney to define his office as a fourth branch of government existing outside executive branch accountability. I've been calling him "Fourthbranch" ever since (like the Taco Bell ad: "think outside the Constitution"). In the interview, Leonard details just how uniquely Cheney and his minions see their responsibilities to other government agencies.

NEWSWEEK: Explain how all this happened.

Leonard: Up until 2002, OVP was just like any other agency. Subsequent to that, they stopped reporting to us…At first, I took that to be, 'we're too busy.' Then we routinely attempted to do a review of the OVP and it was at that point in time it was articulated back to me that: 'well they weren't really subject to our reviews.' I didn't agree with it. But you know, there is a big fence around the White House. I didn't know how I could get in there if somebody didn't want me to.

So how did matters escalate?

The challenge arose last year when the Chicago Tribune was looking at [ISOO's annual report] and saw the asterisk [reporting that it contained no information from OVP] and decided to follow up. And that's when the spokesperson from the OVP made public this idea that because they have both legislative and executive functions, that requirement doesn't apply to them.…They were saying the basic rules didn't apply to them. I thought that was a rather remarkable position. So I wrote my letter to the Attorney General [asking for a ruling that Cheney's office had to comply.] Then it was shortly after that there were [email] recommendations [from OVP to a National Security Council task force] to change the executive order that would effectively abolish [my] office.

Who wrote the emails?

It was David Addington.

No explanation was offered?

No. It was strike this, strike that. Anyplace you saw the words, "the director of ISOO" or "ISOO" it was struck.

Here we have the Fourthbranch way. Assume the laws don't apply to you; when pressed, threaten to abolish the law or the agency that attempts to execute it. And since Cheney is not a lawyer, his appointed henchman in these matters is now David Addington. There's always one degree of separation for Fourthbranch, be it Libby or Addington or whoever. And the new firewall may get torched by the ongoing torture tape investigation.

The House Intelligence Committee has scheduled a hearing on January 16 (pdf) regarding the destruction of CIA interrogation videotapes of two al Qaeda suspects held in secret overseas prisons, Abu Zubaydah and Abd al-Rahim al-Nashiri.

The order to destroy the tapes allegedly was given by Jose Rodriguez who at that time was head of the CIA’s clandestine service. Rodriguez, who has hired lawyer Robert Bennett to represent him, has no intention of being the scapegoat.

The TimesonLine reports Rodriguez is seeking immunity for his testimony. Who might he give up?

Four names in the White House have surfaced so far. My money is on Cheney lawyer (now his Chief of Staff) David Addington.

Reports have cited four White House and OVP staffers as having discussed the tapes with the CIA, and have gone out of their way to assure that three of them advised against destruction. Only Addington is left hanging out to dry. And of course, the CIA ignored the advice of everyone but Addington.

It's hard to understate the level to which Fourthbranch runs this government without being subject to regular government scrutiny. Just this week he's been implicated in denying a waiver to California to set their own greenhouse gas emissions targets. You can add that to the secret energy meetings, enabling the Enron energy blackouts in California in 2001, the Plame leak, official secrecy including making up a classification for his own documents, the tax cuts ("This is our due!"), war in Iraq, the looming threat of war in Iran, environmental policy, and well, everything in the Angler series.

The Office of the Vice President is a relic of the compromise that forged the Constitution, almost wholly unnecessary in the function of a 21st-century state. While it seemed a useless honorific only given meaning when a President died in office (and there are plenty of other ways to create a line of succession), it lingered because nobody could fathom anything bad arising from it.

They never met Fourthbranch.

Torture Tape Update

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Walk The Plank

I think the country is so starved for some accountability for what this Administration has done that they would greet this like it was V-J Day:

The U.S. Inspector General may recommend criminal prosecution of departed Attorney General Alberto Gonzales at the conclusion of an investigation, possibly as early as next month, the fired former U.S. attorney for Western Washington told a Spokane audience Friday [...]

McKay said he was summoned to Washington, D.C., in June and questioned for eight hours about possible reasons for his firing by investigators with the Office of Inspector General, who will forward their final report to Congress.

“My best guess is it will be released sometime next month,’’ and likely will include recommendations for criminal prosecutions of Gonzales and maybe others, McKay said.

Gonzales “lied about” reasons for the firings when questioned under oath in July by the Senate Judiciary Committee and now has hired a lawyer and is refusing to answer questions from the Inspector General, McKay said.

Don't get your hopes up too high, the OIG report will be in the form of a recommendation and not an indictment. But, the best course of action for all involved is if Gonzales is indicted on January 21, 2009, and he turns state's evidence and flips on the higher-ups (they don't call him Fredo for nothing). Real accountability obviously isn't about to com through the Congress; the criminal justice system is the only option left. But you have to wait until that pardon power is out of the hands of Cover-Your-Ass Boy.

As it happens I watched the excellent Frontline piece "Cheney's Law" tonight, which covered little new ground but showed pretty clearly how Gonzales was the willing dupe of Cheney and Addington inside the Justice Department. If anybody deserves to be tagged and bagged, it's him.

Marcy Wheeler has a lot more on this.

McKay says he got called to DC for an entire day of testimony. At about the same time, SJC was confirming with OIG that it was including Gonzales' "comforting" of Monica Goodling in its investigation, not to mention confirming that OIG would be able to conduct its investigation without interference. It was also ensuring that OIG would be able to investigate AGAG and other lawyers--even if they were acting "as lawyers" when they acted improperly. In other words, at about the time fired USAs were being brought back to DC to testify, SJC was making sure OIG could continue the investigation wherever it might lead--including toward Gonzales' own actions. There was an abortive attempt to get Paul Clement to appoint a Special Counsel, but that quickly fizzled.

Meanwhile, the White House was desperately trying to avoid any more incriminating testimony. Bill Mercer withdrew his nomination to AAG rather than have to answer the Senate's questions. Paul Clement and Fred Fielding were making intellectually suspect justifications for the White House and Harriet Miers to refuse subpoenas. Pete Domenici made a successful bid (thanks to Andrea Mitchell's crack reporting skills) to throw suspicion off him--only to resign several months later..

And then, in the middle of this, AGAG testified again--lying again, at least according to John McKay. And, perhaps not incidentally, both SJC and HJC started getting more explicit about Rove's involvement, and a whole lot more explicit about Gonzales' role in covering up Iglesias' firing.

Could get interestin'...

The Grand Inquisitors

If you read one news article about the Bush Administration this year, this is the one. It illustrates how far we've backslid and relinquished our moral authority in the name of petrifying fear.

When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.

Later that year, as Congress moved toward outlawing “cruel, inhuman and degrading” treatment, the Justice Department issued another secret opinion, one most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard.

The legacy of the Bush Administration is one of official secrecy and deep human cruelty. Because they are so psychologically damaged, they project those feelings on everyone else, feeling that only through torture can they extract the information they need to carry out a so-called war on terror. In truth, the known factor is that torture doesn't work. It yields unreliable information as the victim tells his or her captors what they want to hear. It lso violates every moral precept you can imagine and invalidates any claim we make on human rights around the world. Bush's speech at the UN on the importance of human rights was met with nothing so much as laughter.

But there's a deeper meaning to all of this. You can argue that the main reason this nation is torturing terror suspects is because the executive branch has decided it can. And every attempt to put limits on that behavior, whether from the courts or from Congress, is met with retrenchment, as the issue becomes less about the policy and more about thumbing their nose at the other branches of government. These extreme interrogation techniques remain in effect, because until now nobody knew about them. This official quote is telling.

A White House spokesman, Tony Fratto, said Wednesday that he would not comment on any legal opinion related to interrogations. Mr. Fratto added, “We have gone to great lengths, including statutory efforts and the recent executive order, to make it clear that the intelligence community and our practices fall within U.S. law” and international agreements.

Yes, of course, but since the President is rewriting US law through executive orders and secret legal memorandums, what does that phrase even mean anymore?

When I saw Charlie Savage speak, the most distressing statement he made was that it would be very difficult for future Presidents to put these genies back in their bottles. It's unlikely a lot of these issues would reach up to the Supreme Court because the judicial system in this country doesn't offer advisory opinions. Anybody available to show standing is locked away in a detention center, and even though they are just now being allowed to request lawyers,
the awful Military Commissions Act strips their habeas corpus rights and keeps them in a rigged military tribunal system, which has just been kickstarted, after fixing some of the legal language that will allow those trials to move forward. We're not going to know about who the CIA tortured, where they were held, and what international conventions they broke. Even the next President will be unable to understand the scope of these crimes. Bush had an Office of Legal Counsel that essentially told him what he wanted to hear, that anything he decided was lawful could be carried out. The only exception was Jack Goldsmith, who did try to preserve civil liberties in the detention process, but when he testified before Congress this week, he was more concerned that there were too MANY lawyers in the OLC, not too few.

This is about expanding executive power. And so you know that this is really about Vice President Fourthbranch and the radical legal theories pushed by his pit bull David Addington and other like-minded ideologues. And they ran roughshod over the rest of the government.

Associates at the Justice Department said Mr. (Abu) Gonzales seldom resisted pressure from Vice President Dick Cheney and David S. Addington, Mr. Cheney’s counsel, to endorse policies that they saw as effective in safeguarding Americans, even though the practices brought the condemnation of other governments, human rights groups and Democrats in Congress. Critics say Mr. Gonzales turned his agency into an arm of the Bush White House, undermining the department’s independence.

The interrogation opinions were signed by Steven G. Bradbury, who since 2005 has headed the elite Office of Legal Counsel at the Justice Department. He has become a frequent public defender of the National Security Agency’s domestic surveillance program and detention policies at Congressional hearings and press briefings, a role that some legal scholars say is at odds with the office’s tradition of avoiding political advocacy.

Mr. Bradbury defended the work of his office as the government’s most authoritative interpreter of the law. “In my experience, the White House has not told me how an opinion should come out,” he said in an interview. “The White House has accepted and respected our opinions, even when they didn’t like the advice being given.”

But they never disliked those opinions, at least not under Gonzales and Bradbury. The Office of Legal Counsel, once a nonpartisan referee of Presidential power, the "Supreme Court" of the executive branch, is not a rubber stamp for the Administration's policies. And there's almost nothing that can be done about that.

This is the most despicable article you'll ever read. These people have destroyed the very fabric of the American experiment, as early historians liked to call it. This experiement is gradually blowing up in the lab.

The Goldsmith Standard

Jack Goldsmith is a hard-core conservative. But he still has vestiges of an understanding of civil liberties and the rule of law, and does not share a belief in the right of the executive to be essentially a king. This is why he left the Office of Special Counsel within 9 months, after seeing the depths to which the Bush Administration would sink to justify their lawbreaking. In an article for the New York Times magazine previewing his new book, Goldsmith explains the current members of the executive branch who desire nothing less than supreme power.

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention, which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” (Philbin declined to discuss the conversation.)

In his book, Goldsmith describes Addington as the “biggest presence in the room — a large man with large glasses and an imposing salt-and-pepper beard” who was “known throughout the bureaucracy as the best-informed, savviest and most conservative lawyer in the administration, someone who spoke for and acted with the full backing of the powerful vice president, and someone who crushed bureaucratic opponents.” When Goldsmith presented his analysis of the Geneva Conventions at the White House, Addington, according to Goldsmith, became livid. “The president has already decided that terrorists do not receive Geneva Convention protections,” Addington replied angrily, according to Goldsmith. “You cannot question his decision.” (Addington declined to comment on this and other details concerning him in this article.)

This is just one example of the beliefs of Addington, "Cheney's Cheney," that there should be no checks on the executive. Paradoxically, the Office of the Vice President doesn't believe themselves to be a part of the executive branch, so it's just a helpful gesture to give the President a complete free hand to trash the Constitution.

Glenn Greenwald has much more.

Two revelations in particular are extraordinary and deserve (but are unlikely to receive) intense media coverage. First, it was Goldsmith who first argued that the administration's secret, warrantless surveillance programs were illegal, and it was that conclusion which sparked the now famous refusal of Ashcroft/Comey in early 2004 to certify the program's legality. Goldsmith argued continuously about his conclusion with Addington, and during the course of those arguments, this is what happened:

[Goldsmith] shared the White House's concern that the Foreign Intelligence Surveillance Act might prevent wiretaps on international calls involving terrorists. But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. "We're one bomb away from getting rid of that obnoxious [FISA] court," Goldsmith recalls Addington telling him in February 2004.

Their goal all along was to "get rid of the obnoxious FISA court" entirely, so that they could freely eavesdrop on whomever they wanted with no warrants or oversight of any kind. And here is Dick Cheney's top aide, drooling with anticipation at the prospect of another terrorist attack so that they could seize this power without challenge. Addington views the Next Terrorist Attack as the golden opportunity to seize yet more power. Sitting around the White House dreaming of all the great new powers they will have once the new terrorist attack occurs -- as Addington was doing -- is nothing short of deranged.

Contrary to the claims made by Bush and his followers ever since the NSA scandal arose, their real objective in secretly creating "The Terrorist Surveillance Program" was never to find a narrow means to circumvent FISA when, in those few cases, it impeded necessary eavesdropping. Rather, the goal was to get rid of FISA altogether and return the country to the days when our government could spy on us in total secrecy, with no oversight. Of course, until they could "get rid of" that law altogether -- through the only tactic they know: exploitation of Terrorism -- they simply decided to violate it at will.

Read the whole thing. The Bush Administration has been using discredited legal reasoning to do away with federally and Constitutionally mandated laws without any compunction. Their own internal, warped logic was the only logic that mattered, certainly not the logic and legal reasoning that is supposed to govern the country. This is the kind of government you would expect in a military junta, quite frankly. And as Greenwald rightly points out,

Perhaps most infuriating is the fact that, as it turns out, violating these laws in secret was not even necessary -- because Congress was, and still is, more than happy to legalize whatever they wanted to do. Almost immediately after the Supreme Court finally imposed some mild limitations on the President's detention and interrogation powers -- first in Hamdi, then in Hamdan -- Congress, as Goldsmith says, "promptly passed a law that gave him everything he asked for, authorizing many aspects of the military commissions that the Supreme Court had struck down."

Same with the FISA court, just denuded by Congress.

Until we have a Democratic Party with the conviction to put an end to this total disregard for the normal functions of government, people like Addington and his boss will continue to reach for more and more power. And the next executive isn't likely to throw those new powers away.

Fourthbranch Oozes Back Into The Third Branch - But Still Stonewalls

Mike Allen definitely got played when he wrote this headline:

Dems force Cheney flip-flop on secret docs

Dick Cheney's office is abandoning a justification for keeping the Vice-President's secret papers out of the hands of the National Archives.

Officials working for Cheney had tried to claim he is separate from the executive branch, but they will no longer pursue that defense, senior administration officials tell The Politico.

Believe me, I like any headline that begins "Dems force Cheney." But they haven't force him to do a whole lot. While his lawyers are giving up on trying to justify the ridiculous Fourth Branch of government claim, they aren't at all done resisting efforts to release information:

Dick Cheney's chief of staff, David Addington, issued a letter to Sen. John Kerry (D-MA) today defending the Vice President's interpretation of his office being outside the executive branch - only this time, he said it was because Cheney's office isn't an "agency."

A copy of the letter from David Addington to Sen. John Kerry, D-Mass., was released to RAW STORY. Kerry said the "legalistic" response from Addington "raises more questions than it purports to answer."

"Dear Senator Kerry," Addington writes. "The executive order on classified national security information -- Executive Order 12958 as amended in 2003 -- makes clear that the Vice President is treated like the President and distinguishes the two of them from 'agencies.'"

No longer satisfied with the Vice President's office's claim that Cheney is actually an admixture between the legislative and executive branch, Addington now posits that the Vice President's office is not an "agency."

"The executive order gives the [Information Security Oversight Office], under the supervision of the Archivist of the United States, responsibility to oversee certain activities of 'agencies,' but not of the Vice President or the President."

It will not surprise you to know that if you're a constitutional scholar and you actually READ the executive order in question, Addington's reasoning is transparently silly.

Most importantly, Addington's argument would appear to be inconsistent with the statute that required the promulgation of the E.O. in the first place, the Counterintelligence and Security Enhancements Act of 1994, which requires (50 U.S.C. 435(a)) the President to "establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government." (Thanks to "gnarly trombone" in the comments for the cite.) Unless there is some reason to think that Congress did not mean to cover the Office of the Vice President in this directive -- which would surprise me, although I don't know anything about the intracacies of this statute -- then the E.O. must be construed to cover that Office. (Unless, of course, the statute would to that extent unconstitutionally impinge on the Commander in Chief's authority . . . but who would be so audacious as to make that far-fetched argument? (Yes, that's a rhetorical question.)

TPM Muckraker has more on this.

The Senate Judiciary Committee decided to step into this nonsense, albeit from a different angle, by issuing subpoenas for documents relating to the warrantless wiretapping program. This impacts Abu G as well, last seen dodging protestors in Idaho, since he claimed under oath that there was no internal disputes about the warrantless wiretapping program, yet James Comey testified the exact opposite and in fact detailed the nature of the dispute (as well as his Midnight Ride to stop Fredo and Card from preying upon John Ashcroft when he was sick in the hospital. The Judiciary Committee is seeking documents from DoJ as well.

But the fact that they're subpoenaing documents from the OVP means that Fourthbranch will have to trot out an executive privilege argument again. At which point he'll be again asked to comply with executive branch rules regarding oversight of classified information procedures. So Fourthbranch has stepped into a vicious cycle.

The Democrats in the Congress have really pounced on this. It's great theater. Hopefully they can walk and chew gum, and press this advantage elsewhere as well.

UPDATE: Fredo's also been dragging his feet on the supposed "investigation" of Cheney's exemption from oversight rules, and so House leaders have written him.

Cheney, Part II

Here we learn that Cheney was at the heart of the soul-deadening practice of torture to extract information from our enemies.

Cheney and his allies, according to more than two dozen current and former officials, pioneered a novel distinction between forbidden "torture" and permitted use of "cruel, inhuman or degrading" methods of questioning. They did not originate every idea to rewrite or reinterpret the law, but fresh accounts from participants show that they translated muscular theories, from Yoo and others, into the operational language of government.

A backlash beginning in 2004, after reports of abuse leaked out of Iraq's Abu Ghraib prison and Guantanamo Bay, brought what appeared to be sharp reversals in courts and Congress -- for both Cheney's claims of executive supremacy and his unyielding defense of what he called "robust interrogation."

But a more careful look at the results suggests that Cheney won far more than he lost. Many of the harsh measures he championed, and some of the broadest principles undergirding them, have survived intact but out of public view.

Yes folks, even when the forces of justice and democracy feel they have won, behind the scenes they have not. Because Cheney is like a marionette at controlling levers of power. He uses some of the most skillful lawyerly tactics to give the appearance of staying within the law while essentially gutting it:

Geneva rules forbade not only torture but also, in equally categorical terms, the use of "violence," "cruel treatment" or "humiliating and degrading treatment" against a detainee "at any time and in any place whatsoever." The War Crimes Act of 1996 made any grave breach of those restrictions a U.S. felony [Read the act]. The best defense against such a charge, Addington wrote, would combine a broad presidential direction for humane treatment, in general, with an assertion of unrestricted authority to make exceptions.

The vice president's counsel proposed that President Bush issue a carefully ambiguous directive. Detainees would be treated "humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of" the Geneva Conventions. When Bush issued his public decision two weeks later, on Feb. 7, 2002, he adopted Addington's formula -- with all its room for maneuver -- verbatim.

And so we get a definition of torture that equates it only with organ failure or death, enabling any over treatment to be allowable. As it turns out, Cheney had his fingers all over this redefinition, and his own lawyer, David Addington, was the ghost writer of the infamous "torture memo":

The vice president's lawyer advocated what was considered the memo's most radical claim: that the president may authorize any interrogation method, even if it crosses the line of torture. U.S. and treaty laws forbidding any person to "commit torture," that passage stated, "do not apply" to the commander in chief, because Congress "may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

That same day, Aug. 1, 2002, Yoo signed off on a second secret opinion, the contents of which have never been made public. According to a source with direct knowledge, that opinion approved as lawful a long list of specific interrogation techniques proposed by the CIA -- including waterboarding, a form of near-drowning that the U.S. government classified as a war crime in 1947. The opinion drew the line against one request: threatening to bury a prisoner alive.

Apparently, everyone in the White House is afraid of Cheney, so when they have a problem with what he's done, they go beat up on Fredo:

On June 8, 2004, national security adviser Condoleezza Rice and Secretary of State Colin L. Powell learned of the two-year-old torture memo for the first time from an article in The Washington Post. According to a former White House official with firsthand knowledge, they confronted Gonzales together in his office.

Rice "very angrily said there would be no more secret opinions on international and national security law," the official said, adding that she threatened to take the matter to the president if Gonzales kept them out of the loop again. Powell remarked admiringly, as they emerged, that Rice dressed down the president's lawyer "in full Nurse Ratched mode," a reference to the ward chief of a mental hospital in the 1975 film "One Flew Over the Cuckoo's Nest."

Neither of them took their objections to Cheney, the official said, a much more dangerous course.

What kind of mutated government have we constructed where the Vice President not only walls off his office to the snooping eyes and ears of Congressional and executive oversight, but his own peers are too afraid of him to confront him, and so take out their frustrations on lower-level functionaries while Cheney goes behind all of their backs and essentially runs the government, his hand up the back of his empty-suit ventriloquist's dummy called the President? More than anything, this is an exposure of the cracks in the Constitutional fabric, demanding that the entire structure of it be reviewed to prevent this kind of unaccountability from ever happening again.

The Vice President was writing our intelligence laws. He was determining how far military interrogators and the CIA could go to attempt to extract information. He was fighting, and winning, turf battles with practically every federal agency in the government.

The other problem with this, of course, is that Cheney is a dangerously stupid man, who has constructed a view of executive power that doesn't exist, and has convinced himself and his acolytes that it gives him unllimited control. So when these theories are brought into court, like in Hamdi or Hamdan or Rasul they are always overturned. However, Cheney could always fall back on his secret maneuvering inside the government to come up with ways to circumvent any restriction.

On Oct. 5, 2005, the Senate voted 90 to 9 in favor of McCain's Detainee Treatment Act, which included the Geneva language. It was, by any measure, a rebuke to Cheney. Bush signed the bill into law. "Well, I don't win all the arguments," Cheney told the Wall Street Journal [...]

The final measure confined only the Defense Department to the list of interrogation techniques specified in a new Army field manual. No techniques were specified for CIA officers, who were forbidden only in general terms to employ "cruel" or "inhuman" methods. Crucially, the new law said those words would be interpreted in light of U.S. constitutional law. That made a big difference to Cheney [...]

Eager to put detainee scandals behind them, Bush's advisers spent days composing a statement in which the president would declare support for the veto-proof bill on detainee treatment. Hours before Bush signed it into law on Dec. 30, 2005, Cheney's lawyer intercepted the accompanying statement "and just literally takes his red pen all the way through it," according to an official with firsthand knowledge.

Addington substituted a single sentence. Bush, he wrote, would interpret the law "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief."

Yep, the familiar signing statement language comes from Cheney.

Read the whole thing and weep for our country.