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.

Accountability Now

Accountability is back in Washngton, as today the House impeached a federal judge. At long last, one of the legal architects of the Bush torture regime, the man who allowed the CIA to waterboard and provided the twisted legal rationale, the m- what, it was the other one?

The House on Friday impeached a federal judge imprisoned for lying about sexual assaults of two women in the first such vote since impeaching former President Bill Clinton a decade ago.

The impeachment of U.S. District Judge Samuel Kent of Texas sets up a trial in the Senate. Kent is the first federal judge impeached in 20 years.

It's never the sex, it's the lying.

This guy's actually convicted and in prison serving a 33-month sentence, and he won't resign so he can draw his $174,000 a year salary. I'm not saying it's not warranted. Hey, maybe the House can exercise this whole accountability and oversight muscle. Baby steps.

Good Questions

That you rarely see in our traditional media during this debate over torture.

1. If torture was so crucial to keep America safe, why did the Bush White House stop doing it in 2004 once the Abu Ghraib photos appeared and top officials feared culpability? Further, if we haven't employed these tactics in five years, how could the President be endangering the country by declining to employ them?

2. If torture can be justified under various legal theories and the need to protect the country, why would the man who promulgated those theories and signed legal opinions justifying them refuse to speak publicly to Congress or even privately to the Office of Professional Responsibility to try and exonerate himself?

3. Why is Nancy Pelosi's word being questioned on the timing and extent of various briefings, but not the word of the CIA, who are professional liars who have been exposed as lying to Congress on multiple occasions? (In fairness, that link came from a media member, but it's still rare.)

I wish we had a media to ask these questions, but instead, they chase the soccer ball and pursue irrelevant storylines, as long as they help Republicans and hurt Democrats.

Failing Upwards

I almost have to get out of my seat and clap at the absurdity of this news: Torture lawyer John Yoo has been given a monthly column at the Philadelphia Inquirer.

That's a data point you'd expect at the end of a Vonnegut novel. So it goes.

Aside from justifying waterboarding and other forms of torture, aside from saying that terror suspects didn't deserve habeas corpus because it costs too much, aside from willingly offering every argument to aggrandize executive power in ways that would make a monarch blush, aside from authorizing a torture regime that has led to multiple homicides, aside from a looming disciplinary report from the Office of Professional Responsibility, aside from potential war crimes trials in Spain, here is the latest handiwork from Yoo, designed to get him and his buddies off scot-free (clearly he didn't need to worry):

A Bush administration attorney who approved harsh interrogation techniques of terror suspects advocated in 2006 that President Bush set aside recommendations by his own Justice Department to bring prosecutions for such practices, that the President should consider pardoning anyone convicted of such offenses, and even that jurors hearing criminal cases about such matters engage in jury nullification.

That advice came from John Yoo, a former attorney with the Justice Department's Office of Legal Counsel and author of memos that served as a legal rationale for the Bush administration's interrogation techniques. Yoo's recommendations constitute one of the most compelling pieces of a body of evidence that Yoo and other government attorneys improperly skewed legal advice to allow such practices, according to sources familiar with a still-confidential Justice Department report.

I don't think you need further evidence that Yoo and his cohorts knew what they did was wrong in the eyes of the law. Of course, to the media fraternity, that just means he's "knowledgeable," as it says in this explanation of Yoo's hiring from the editor of the Inquirer opinion page:

John Yoo has written freelance commentaries for The Inquirer since 2005, however he entered into a contract to write a monthly column in late 2008. I won't discuss the compensation of anyone who writes for us. Of course, we know more about Mr. Yoo's actions in the Justice Department now than we did at the time we contracted him. But we did not blindly enter into our agreement. He's a Philadelphian, and very knowledgeable about the legal subjects he discusses in his commentaries. Our readers have been able to get directly from Mr. Yoo his thoughts on a number of subjects concerning law and the courts, including measures taken by the White House post-9/11. That has promoted further discourse, which is the objective of newspaper commentary.

His most recent op-ed attacks President Obama for seeking "empathy" in his next Supreme Court pick. Obviously Yoo wouldn't know anything about that.

Here's Will Bunch:

But it's not too late to change things. Last Sunday's column by Yoo should also be his last, period. While Yoo is a free man who is thus free to utter his detestable viewpoints on any public street corner, the Inquirer has no obligation to so loudly promote these ideas that are so far outside of the mainstream. People should write the Inquirer -- inquirer.letters@phillynews.com -- or call the newspaper and tell them that torture advocates are not the kind of human beings who belong regularly on a newspaper editorial page, officially sanctioned. Journalists here in Philadelphia or elsewhere who wish to strategize on where to take this next should email me at bunchw@phillynews.com.

I'll write the paper, but this really makes me sad more than anything. Not only has a substantial portion of the country accepted torture as a viable option, the scoundrels who authorized it, who debased this country, are not only likely to avoid any justice for the crimes they committed, but they're getting op-ed columns to boot, a ticket into polite society. Despite the fact that Jay Bybee's moral and ethical fitness can be fully questioned by his decision to allow torture committed in our name, he can just lobby his Congresscritters and elude accountability and sit on the federal bench in judgment of other Americans.

And here's maybe the kicker to the whole thing - at least in Bybee's case - federal judges can be held accountable in this country. It just happened yesterday:

A disgraced federal judge was sentenced Monday to nearly three years in prison for lying to investigators about whether he sexually abused his secretary.

U.S. District Judge Samuel Kent was sentenced to 33 months Monday. He was also fined $1,000 and ordered to pay $6,550 in restitution to the two women whose complaints resulted in the first sex abuse case against a sitting federal judge.

Kent could have received up to 20 years in prison after admitting to obstruction of justice, but prosecutors said they wouldn’t seek more than three years under a plea agreement.

“Your wrongful conduct is a huge black X ... a stain on the judicial system itself, a matter of concern in the federal courts,” U.S. District Judge Roger Vinson said as he imposed the sentence. Vinson is a visiting senior judge called in from Pensacola, Fla.

Right after the verdict, this popped up in my email inbox, a joint statement from the Chair and Ranking Member of the House Judiciary Committee:

Unless Judge Samuel Kent immediately resigns, we intend to introduce a resolution jointly tomorrow to commence an inquiry into whether grounds exist to impeach him and remove him from office.

Are they trying to kill me?

I'm obviously not saying that a sex abuser doesn't deserve this kind of treatment, but that for some reason, authorizing torture which led to detainee homicide doesn't get the dander up in Washington in the same fashion. It makes a mockery of the phrase "moral obligation."

Let's See If The Referrals Disappear

Here's a little nugget buried in an article about developments in the torture cases, most of which I covered yesterday:

At the same time, Bush administration lawyers are facing a deadline to respond to a Justice Department ethics investigation into their support for the rough interrogation tactics.

Investigators are evaluating whether former Office of Legal Counsel lawyers John C. Yoo, Jay S. Bybee and Steven G. Bradbury followed professional standards when they drafted memos in 2002 and 2005 that gave a green light to simulated drowning and wall slamming of prisoners.

Sources told The Washington Post earlier this year that an earlier draft of the investigators' report recommended disciplinary referrals to local bar associations for two of the men: Yoo, now a law professor in California, and Bybee, now a federal appeals court judge based in Nevada. The report requires the approval of new Attorney General Eric H. Holder Jr., and findings could be released as early as this summer, according to two sources familiar with the process.

The Associated Press reports that this DoJ probe is nearing conclusion. If the recommendations fall short of the disciplinary referrals reportedly cited in the earlier draft, can we conclude that Eric Holder softened the report?

...in a somewhat related story, I appreciate Chris Dodd's thoughts on torture. Dodd's father prosecuted at Nuremberg, incidentally, so he can fairly accurately assess accountability for war crimes.



...I should also mention that DiFi's attempted whitewash of any investigation is disconcerting. Intelligence Committee hearings would not be public, and who knows what would be released at the end. We need a public airing, at the very least.

...Aha, now we hear that BushCo is working overtime to make those disciplinary referrals disappear.

Former Bush administration officials are lobbying behind the scenes to push Justice Department leaders to water down an ethics report criticizing lawyers who blessed harsh detainee interrogation tactics, according to two sources familiar with the efforts.

In recent days, attorneys for the subjects of the ethics probe have encouraged senior Bush administration appointees to write and phone Justice Department officials, said the sources, who spoke on condition of anonymity because the process is not complete.

These are the burrowed Bush officials at Justice, designated to protect the interests of the previous Administration. Let's see what kind of power they wield.

...And here's the latest, as Devlin Barrett of the AP gets a sneak peek at the report, showing that the professional sanctions may remain intact, but that's as far as it goes:

Bush administration lawyers who approved harsh interrogation techniques of terror suspects should not face criminal charges, Justice Department investigators say in a draft report that recommends two of the three attorneys face possible professional sanctions [...]

Officials conducting the internal Justice Department inquiry into the lawyers who wrote those memos have recommended referring two of the three lawyers — John Yoo and Jay Bybee — to state bar associations for possible disciplinary action, according to a person familiar with the inquiry. The person, who spoke on condition of anonymity, was not authorized to discuss the inquiry.

The person noted that the investigative report was still in draft form and subject to revisions. Attorney General Eric Holder also may make his own determination about what steps to take once the report has been finalized.

This is clearly a trial balloon, designed to gauge reaction throughout the civil liberties community and the broader Democratic constituency. We've seen this movie enough with the Obama Administration to recignize it. They leak out some possible outcome to see how it plays. This would be the desirable response.

Vincent Warren, executive director of the Center for Constitutional Rights, called the decision not to seek criminal charges "inconceivable, given all that we know about the twisted logic of these memos."

Warren argued the only reason for such a decision "is to provide political cover for people inside the Obama White House so they don't have to pursue what needs to be done."

Offering disciplinary sanctions at state bar associations isn't nothing, but hardly approaches full accountability. There needs to be a very loud reaction to this. First and foremost, Congress needs to open their own hearings into the conduct of officials like Jay Bybee, who remain in a lifetime appointment on the federal bench.

This Week In Torture

The fight for justice and accountability for those who tortured in our name refuses to fade. Last week three progressive House members introduced a bill calling for a special committee to investigate torture, wiretapping, and other practices of the Bush regime. One of the sponsors, Robert Wexler, talks about it here:

This committee would have the authority to ask the hard questions – to look close – and deliver the truth about the proper role of our government that protects both our civil liberties and the safety of our citizens. We must do both.

The committee will investigate many of the outrageous policies of the Bush Administration to unearth and expose what happened during the past eight years. Witnesses will be subpoenaed and testify under oath. Based on what we learn, the committee will craft legislative recommendations that will be utilized as the Patriot Act and other critical national security legislation are renewed in the coming months and years.

We can't look forward without fully understanding what occurred. We must take a hard look at what went wrong in the last 8 years. We must continue to peel back the veil of secrecy that the previous Administration used as cover to undermine our system of checks and balances, and establish a clear line between what is necessary for our security and what is unlawful government intrusion and a violation of our civil liberties.

This legislation need only pass the House and therefore we have a terrific chance to enact it.

That's at least a start. And the Senate Judiciary Committee will seek testimony from Ali Soufan and Phillip Zelikow next week. Soufan was the FBI interrogator who got information from Abu Zubaydah through legal means, and Zelikow was the State Department official who wrote an alternative memo, sought by Democrats in the House, that dissented from the Bush regime line about the legality of torture (which Bush officials promptly tried to destroy).

These inside efforts are buttressed by outside efforts at accountability, like the Courage Campaign's action item asking their supporters to call Democratic House Judiciary Committee members from California (all 6 of them) and let them know of the state party's resolution to investigate Jay Bybee. The potential removal of Bybee from the federal bench is just an entryway into a larger accountability for the torture regime. A released FBI memo shows that George Bush himself signed off on interrogation tactics that could plausibly be construed as torture, so obviously this should go all the way up the ladder.

Senior FBI agents stationed in Iraq in 2004 claimed in an e-mail that President George W. Bush signed an executive order approving the use of military dogs, sleep deprivation and other harsh tactics to intimidate Iraqi detainees.

The FBI e-mail -- dated May 22, 2004 -- followed disclosures about abuse of Iraqi detainees at Abu Ghraib prison and sought guidance on whether FBI agents in Iraq were obligated to report the U.S. military’s harsh interrogation of inmates when that treatment violated FBI standards but fit within the guidelines of a presidential executive order.

According to the e-mail, Bush’s executive order authorized interrogators to use military dogs, "stress positions," sleep "management," loud music and "sensory deprivation through the use of hoods, etc." to extract information from detainees in Iraq, which was considered a violation of the Geneva Conventions. Bush has never before been directly linked to authorizing specific interrogation techniques at Guantanamo or Abu Ghraib. Bush has admitted, however, that he personally signed off on the waterboarding of three "high-value" prisoners.

With even staunch conservatives like Ken Adelman backing away from the knee-jerk apologist defense of torture, and with enough experts in the field willing to discuss both the unreliability of evidence gained through torture and the general immorality of the practice, as long as Congress is pushed to action, it will be hard to stop the train once it heads down the tracks.

Phillip Gourevitch, who as a chronicler of the Rwandan genocide knows quite a bit about accountability for war crimes, explains why we could maybe take a different view, away from prosecution and toward a Truth Commission. I don't know that I totally agree, but it's worth noting.

America is now embroiled in a debate about how, or whether, to hold the true masterminds—the former President, the former Vice-President, the former Defense Secretary, and their top lawyers—to account for their criminal policies. Here, we are on uncharted ground. As a rule, the war-crimes prosecutions of the past century were conducted by a group of states, acting collectively, against the (usually defeated) leaders of another state. When states hold their own leaders to account, it tends to happen not after an election but after a revolution, when the very premise of the ancien régime is treated as criminal. Furthermore, prosecution and punishment are not necessarily the best means to eradicate the rot from a political system, because in adjudicating systemic crimes political compromise is inevitable. It is practically impossible, and politically intolerable, to contemplate holding to account every corrupted officer in the chains of command that ran between the White House and the guardhouse at Abu Ghraib or at Bagram Airbase. A full and public reckoning of the historical record might be less cathartic but would ultimately be more valuable than a few sensational trials.

In any event, President Obama, who has taken a courageous lead in bringing the issue of torture to light, and in insisting on recriminalizing it, appears to have no interest in taking any of the policymakers to court—though he has not precluded doing so. Still, to date the only Americans who have been prosecuted and sentenced to imprisonment for the criminal policies that emanated from the highest levels are ten low-ranking servicemen and women—those who took and appeared in the Abu Ghraib photographs, and embarrassed the nation by showing us what we were doing there. Charles Graner is the only one remaining in prison, serving ten years. His superior officers enjoy their freedom, and C.I.A. interrogators, who spent years committing far worse acts against prisoners than Graner did even in the darkest days at Abu Ghraib, have been assured immunity.

But, if full justice remains impossible, surely some injustices can be corrected. Whenever crimes of state are adjudicated—at Nuremberg or The Hague, Phnom Penh or Kigali—the principle of command responsibility, whereby the leaders who give the orders are held to a higher standard of accountability than the foot soldiers who follow, pertains. There can be no restoration of the national honor if we continue to scapegoat those who took the fall for an Administration—and for us all.

The Washington Post covered those Abu Ghraib guards this week as well, noting the absurdity of Charles Graner and his buddies on the night shift, while legally culpable, being the only people held to account for this systematic Administration policy of torture.

Whether you agree with Gourevitch that a public airing of the full architecture of torture is more desirable, or whether you agree with me that accountability necessitates prosecution or else the precedent of no accountability will be set in stone, we can all agree that doing nothing, while still trying to use our moral authority to castigate others who employ torture, makes a mockery of the rule of law. The "torture videos" from a sheikh in the United Arab Emirates are somehow hurting the country's relationship with the United States, as if we have no short-term or long-term memory whatsoever:

The U.S. is a very tolerant nation, but the one thing we simply cannot abide is when a government fails adequately to investigate allegations of torture on the part of key officials and fails to hold them accountable. That's where we draw the line.

The UAE royal family claimed that they had investigated and resolved the matter and made sure that it would not happen again -- but when it comes to torture, we have made clear that such a "look-forward-not-backwards/reflection-not-retribution" mentality is morally outrageous and unacceptable -- from the UAE [...]

What kind of primitive, brutal country knows for years that its own powerful government officials participated in torture and then fails even to investigate what happened, let alone impose meaningful accountability on the torturers? The international community simply cannot tolerate acquiescence to that sort of evil.

Will anyone recognize this unbelievable juxtaposition, and give this country the cleansing they need through real justice?

MoveOn: Impeach Jay Bybee

Jay Bybee's attempt to exonerate himself for his crimes only succeeded in inspiring more activism around his impeachment.

Jay Bybee signed off on notorious Bush-era torture memos. And now? He's serving as a judge on the 9th Circuit Court of Appeals, thanks to George Bush.

Jay Bybee showed no respect for our laws and isn't fit to be a federal judge. Can you sign this petition urging Congress to impeach Jay Bybee?

The President put it very plainly last night, perhaps more plainly than he'd admit.

"President Obama said, 'They used torture, I believe waterboarding is torture,'" Nadler said, speaking of Obama’s comments about his predecessors. “Once you concede that torture was committed, the law requires that there be an investigation, and if warranted, a prosecution.”

Those who would condone war crimes at this point look increasingly foolish. We are a nation of laws, and if you don't want a law prosecuted, you repeal it, but you cannot ignore it. I would refer these apologists to Sen. Robert Byrd, who knows a thing or two about the Constitution:

The recently leaked report from the International Committee of the Red Cross (ICRC), as well as the four released memorandums from the Department of Justice Office of Legal Counsel (OLC), confirm our worst fears. These documents point to brutal, inhumane acts which were repeatedly carried out by U.S. military personnel, and which were authorized and condoned at the highest levels of the Bush Administration. These acts appear to directly violate both the U.N. Convention Against Torture and the Geneva Conventions. Spain and the United Kingdom have already initiated investigations of Bush Administration officials who approved these acts. The United States needs to investigate as well. To continue to ignore the mounting evidence of clear wrongdoing is a national humiliation [...]

The rule of law is not just a lofty concept to which we should aspire only when convenient. It is a fundamental principal upon which our Republic was founded, and it is the foundation of our free society. I understand the desire to look forward and to forge a new path on high ground instead of on the low road of the past eight years. But to use the need to move on as a reason not to investigate basic human rights violations is unacceptable. Excusing individuals at the highest levels of government from adhering to the rule of law, whether in wartime or not, is a dangerous precedent, for it undercuts the principle of accountability which permeates representative democracy.

We can start by ensuring that a violator of international laws and a moral reprobate is removed from the federal bench. Call and email Congress, particularly the members of the House Judiciary Committee, and ask them to open hearings.

House Judiciary Committee
John Conyers, Michigan	Howard Berman, California
Rick Boucher, Virginia	Jerrold Nadler, New York
Robert C. Scott, Virginia	Mel Watt, North Carolina
Zoe Lofgren, California	Sheila Jackson-Lee, Texas
Maxine Waters, California	Bill Delahunt, Massachusetts
Robert Wexler, Florida	Steve Cohen, Tennessee
Hank Johnson, Georgia	Pedro Pierluisi, Puerto Rico
Luis Gutierrez, Illinois	Brad Sherman, California
Tammy Baldwin, Wisconsin	Charles Gonzalez, Texas
Anthony Weiner, New York	Adam Schiff, California
Linda Sánchez, California	Debbie Wasserman Schultz, Fl
Dan Maffei, New York	Lamar S. Smith, Texas
Jim Sensenbrenner, Wisconsin	Howard Coble, North Carolina
Elton Gallegly, California	Bob Goodlatte, Virginia
Dan Lungren, California	Darrell Issa, California
Randy Forbes, Virginia	Steve King, Iowa
Trent Franks, Arizona	Louie Gohmert, Texas<
Jim Jordan, Ohio	Ted Poe, Texas
Jason Chaffetz, Utah	Tom Rooney, Florida
Gregg Harper, Mississippi

P.S. Patrick Leahy would like Judge Bybee to stop by the Senate for a little chat.

Good Faith

Jay Bybee spoke for the first time that I can remember about his signing of the Torture Memos while at the Office of Legal Counsel, and he went with the "they looked good to me" defense.

Judge Bybee said he was issuing a statement following reports that he had regrets over his role in the memorandums, including an article in The Washington Post on Saturday to that effect. Given the widespread criticism of the memorandums, he said he would have done some things differently, like clarifying and sharpening the analysis of some of his answers to help the public better understand the basis for his conclusions.

But he said: “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

Other administration lawyers agreed with those conclusions, Judge Bybee said.

“The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”

Yes, if you just sharpen the analysis that waterboarding causes a denial of oxygen and gives the sensation of imminent death, but isn't torture anyway, I think everybody would be satisfied. As Ian Milhiser says, though John Yoo did most of the writing of the memos, and Bybee could have easily pleaded negligence and thoughtlessness, he decided to take ownership and aver that they were legally correct, which is essentially a confession of his involvement.

We get a portrait here of Bybee ostracized by many colleagues for his work.

Prof. Christopher L. Blakesley, a colleague on the law school faculty at the University of Nevada, Las Vegas, said that after the first memorandum was released, he was unable to restrain himself from expressing disagreement at a 2004 dinner at a restaurant that included their wives.

“I asked him how he could sign such an awful thing,” Professor Blakesley recalled in an interview.

He said the judge replied that he could not talk about the matter. The dinner proceeded awkwardly, Professor Blakesley said, and they have not spoken since.

Professor Blakesley said that while he liked Judge Bybee, “he has some basic flaws including being very naïve about leaders.’

“He has too much respect for authority and will avoid a confrontation no matter what,” the professor continued.

There are other glimpses of Bybee dropping hints about his conduct, saying that he wasn't proud of his time at the Bush Justice Department, and that some of the work concerned matters “so awful, so terrible, so radioactive” that he thought it would never come to light. This law clerk kind of nails it:

Another clerk at the luncheon, Nina Rabin, who now runs an immigration clinic at the University of Arizona, said she found Judge Bybee’s remarks troubling because he suggested that his role as a lawyer could be divorced from whatever policy was being pursued. “He definitely offered a view that was sanitized,” she said, “and I thought that was disingenuous in that it removed any responsibility on the part of the lawyer for what was happening.”

This is quite literally the definition of lawlessness; the lawyers put no roadblocks in place to the whims of the Cheneyites, and instead did their bidding. So the Cheneyites could argue they received legal advice that pushed them in a certain direction, and the lawyers could argue they made their best effort to provide what the Cheneyites wanted (which is the opposite of the role of a lawyer, of course). And everyone gets to sleep another night. Yet the damage around the world holds to this day.

"For years, talks with foreign partners regarding how best to combat terrorism have foundered at a fundamental impasse because of the use of counter-terrorism authorities outside of, and many felt, contrary to, the rule of law," (deputy assistant Attorney General Todd) Hinnen told an audience of government and private-sector counter-terrorism experts at the Washington Institute for Near East Policy.

His remarks were especially noteworthy because Hinnen, until 2007, was a top Bush administration counter-terrorism official at the National Security Council.

Hinnen said that the new administration was trying to "move past this impasse and provide grounds for constructive discussions with foreign partners and in multilateral organizations," but that the effort had proven extremely challenging given the Bush White House's penchant for conducting a global counter-terrorism campaign that was in apparent violation of U.S. and international law and treaty.

"In recent weeks, the administration has made a clean break with the practices of the last administration that were, to put this delicately, least amenable to existence as part of a principled and enduring legal framework," Hinnen said. "The Department of Justice has released and rejected a series of memoranda that are widely regarded as an effort to bend the rule of law to support conclusions which are fundamentally antagonistic to it."

Hinnen had no comment on whether the Justice Department, which is investigating the Bush administration lawyers who wrote those memos, would consider such an "effort to bend the rule of law" in support of possibly illegal policies to be something prosecutable in a court of law.

And what Hinnen leaves unsaid is that a country that refuses to follow the law in providing accountability for those who violated it remains a lawless country, and our allies around the world know it. Which is why we must continue the fight for justice and the rule of law, beginning with the man who defended his atrocious conduct and still sits on the federal bench. Call and write the House Judiciary Committee and demand that they open hearings with the possibility for penalties to the fullest extent of the law, starting with his impeachment.

Update On The Fight To Impeach Jay Bybee And Restore Accountability

Yesterday I kicked off an action item, asking people to call and write the members of the House Judiciary Committee or their California members of Congress, informing them that the largest state Democratic Party in the country has voted to support a Congressional inquiry into Jay Bybee and other lawyers for their actions justifying torture, and that they ought to carry this through. Many people have already contacted their members of Congress and you should do the same. One thing that would help is to get them on the record. If you receive any constituent correspondence from your Congressperson about this issue, please forward it to me at david-dot-dayen-at-gmail-dot-com. We need to build a list of who supports accountability and who does not, of who in the California delegation agrees with their own party and who does not. We're starting to get some on-the-record statements, like this nonsense from Illinois Republican Donald Manzullo, who admits that waterboarding doesn't work, who calls it "more torture than not," as if there's a torture continuum of some sort (the fact that CIA interrogators had to add a tracheotomy kit to the proceedings should tell you what they were up to with waterboarding), but who then says that "no laws were broken" (which is patently false), and that, even if there were, nobody should be prosecuted because the whole thing would get "messy."

MANZULLO: Because then you are going to have to go back and you’re going to have to go through every single interrogation and every single memo and the whole purpose of this is to relive again the fact that somebody made the decision to allow this.

We need on-the-record statements like this for every California Democrat, preferably in writing or on tape.

In other news, John Conyers and Jerrold Nadler announced their support to Attorney General Eric Holder for a special counsel to investigate and prosecute anyone involved in the decision-making process in the Bush Administration that led to illegal torture of detainees. That letter is here.

Finally, I will be on Angie Coiro's show on Green960 AM in San Francisco in the 7:00 hour to talk about the CDP resolution, the need for an inquiry and impeachment of Jay Bybee, and the fight to restore the rule of law with respect to torture. Tune in if you can.

...here's that list of members of the House Judiciary Committee to contact:

House Judiciary Committee
John Conyers, Michigan	Howard Berman, California
Rick Boucher, Virginia	Jerrold Nadler, New York
Robert C. Scott, Virginia	Mel Watt, North Carolina
Zoe Lofgren, California	Sheila Jackson-Lee, Texas
Maxine Waters, California	Bill Delahunt, Massachusetts
Robert Wexler, Florida	Steve Cohen, Tennessee
Hank Johnson, Georgia	Pedro Pierluisi, Puerto Rico
Luis Gutierrez, Illinois	Brad Sherman, California
Tammy Baldwin, Wisconsin	Charles Gonzalez, Texas
Anthony Weiner, New York	Adam Schiff, California
Linda Sánchez, California	Debbie Wasserman Schultz, Fl
Dan Maffei, New York	Lamar S. Smith, Texas
Jim Sensenbrenner, Wisconsin	Howard Coble, North Carolina
Elton Gallegly, California	Bob Goodlatte, Virginia
Dan Lungren, California	Darrell Issa, California
Randy Forbes, Virginia	Steve King, Iowa
Trent Franks, Arizona	Louie Gohmert, Texas<
Jim Jordan, Ohio	Ted Poe, Texas
Jason Chaffetz, Utah	Tom Rooney, Florida
Gregg Harper, Mississippi

We Can't Have People With Personal Experience Giving Their Opinion!

From dumb as a stump and proud of it Brian Kilmeade on his radio show:

ANDREW NAPOLITANO (co-host): You may not know the name unless you live in California. Jay Bybee was a professional researcher for the Justice Department when he authored the principal of -- the main one -- of the torture memos.

President Bush awarded him by appointing him to the United States Court of Appeals for the 9th Circuit. That's the level of appellate court just below the Supreme Court. He was appointed to the 9th Circuit, which covers the western third of the United States.

There's a lot of pressure on Jay Bybee -- on Judge Bybee, now, because these memoranda, which obviously were not known about under -- during the time of his confirmation came -- came out.

Here's what John McCain had to say about it yesterday.

JOHN McCAIN [audio clip]: A resignation would be a decision he would have to make on his own, but he falls into the same category as everybody else as far as giving very bad advice and misinterpreting fundamentally what the United States is all about, much less things like the Geneva Conventions.

Plus, under President Reagan, we signed a agreement against torture. We're in violation of that.

BRIAN KILMEADE (co-host): Oh, come on. Number one, we all know John McCain is not a lawyer; this guy is. Number two, Judge, you knew at that time, this is --

NAPOLITANO: This is your guy, John McCain.

UNIDENTIFIED MALE: Now, now. Come on.

KILMEADE: No, he's not my guy. I like John McCain. I respect him. But there's a lot of issues I don't understand. Plus, he should not be allowed to talk on torture because he is clearly somebody who went through unspeakable pain and punishment --

NAPOLITANO: You mean, he shouldn't be allowed to talk -- he has an opinion like everybody else. He represents the state of Arizona.

KILMEADE: But he was tortured. He was tortured. And --

NAPOLITANO: Therefore, his views on torture are --

KILMEADE: -- are skewed.

NAPOLITANO: -- irrelevant because of what happened --

KILMEADE: -- are skewed.

NAPOLITANO: -- in 'nam? I think his views are particularly telling because he's been through this kind of thing.

KILMEADE: But what do you think he's going to be -- pro-torture --

NAPOLITANO: No.

KILMEADE: -- after he's been through it?

NAPOLITANO: Of course, he's not going to be pro-torture.

KILMEADE: And plus, I don't think this is torture. And they don't subscribe to the Geneva Conventions. We had this debate in 2002. You were on our set -- you were on constantly saying, "Look, they don't -- right -- the way the courts look at it right now, they do not fall under the Geneva Conventions." And that was what they were going under.

NAPOLITANO: I never said they didn't fall under the Geneva Conventions.

I should just submit this without comment, because it speaks for itself. But allow me a word on this. Kilmeade's belief that nobody should be allowed to have an opinion backed up with experience or knowledge tracks perfectly with the conservative movement, on a variety of subjects. We shouldn't listen to scientists on climate change, or health professionals on health care, or weapons inspectors on Iraq. The plural of data is not anecdote. Nobody with an informed opinion can possibly be dispassionate. Reality has a well-known liberal bias. This is simply a distilled form of that worldview.

The bigger problem lies in treating torture like it's a debate, complete with polls. The moment a debate over torture was engaged was the moment that America lost its moral authority. Obviously it's ridiculous to seriously state that anyone who has been tortured can't be part of a debate over torture. But it's just as ridiculous to have the debate at all, a debate over an issue that has been not only self-evident, but ingrained in the standard codes of law in civilized societies for centuries. We can open the subject again, but at that point we do lose the right to call ourselves civilized.

Uniting The Fight For Accountability

The quotes from Bob Mulholland and John Heaner are very interesting in this story:

John Heaner, one of the author's of the resolution, said that its passage is significant because it means investigations have support not just at the grassroots level but among elected California leaders.

"The state party doesn't act unilaterally on these sorts of things. There are consultations behind the scenes," said Heaner. "At some level there was a go-ahead given."

Heaner noted that the House Speaker, Nancy Pelosi, is a California Democrat and that her daughter Christine Pelosi is an active member of the state party and head of the platform committee. "Yes, it was a grassroots effort but we are united in a way that hasn't come to the surface yet," he said. "When a resolution comes in that may be controversial, we work carefully within the party mechanism." [...]

Impeachment hearings would begin in the House Judiciary Committee, where chairman John Conyers Jr. (D-Mich.) has vowed to look into the role that Bush administration attorneys such as Bybee played in illegally authorizing torture. The state party's action is meant to encourage those hearings and demonstrate that support for investigations is a mainstream Democratic Party position.

"This is a message to them: 'Hey, we're backing you up, Congress, so continue the investigations and the hearings,'" said Mulholland. "I would think an overwhelming number of Democratic voters in California would agree with this."

Be sure to make the calls and emails to push the House Judiciary Committee to open hearings.

ACTION: Tell Congress To Open Impeachment Inquiry Into Jay Bybee

UPDATE: Ryan Grim of The Huffington Post has the full story of the passage of the resolution at the convention.

Thanks again to all of you who signed petitions and made phone calls and helped push the resolution to open a Congressional inquiry into Torture Judge Jay Bybee, which the California Democratic Party adopted at its convention yesterday. I have been told by the authors of the resolution that the pressure from the outside really aided their efforts.

The passage of the resolution was a beginning, not an ending. I view the impeachment of Jay Bybee from the 9th Circuit Court as a moral and legal imperative, but also an entryway into the larger fight for justice and accountability for those who authorized and directed torture in our name. I agree with Jerrold Nadler that impeachment should not be seen as a compromise measure, a way to satiate those concerned with accountability. "There can't be a compromise -- you have to follow the law ... If the facts say that some former high-ranking official should be prosecuted, the fact people will get angry should be irrelevant ... If we do not investigate the torture that is clear that it occured, and if the evidence is there prosecute, not only are we disobeying the law, not only are we being immoral, but we are inviting torture of our people in the future."

Bybee's impeachment can start us down the path to restoring the rule of law. And now the largest state Democratic Party in the country has spoken. They have said that the myth about torture being a useful tool to extract actionable intelligence from terror suspects is not only irrelevant when it comes to lawbreaking but also entirely false, according to the CIA's own inspector general. They have said that Judge Bybee's appalling judgment and slavish acceptance of John Yoo's flawed legal reasoning represents a greater evil - the evil of thoughtlessness - and a greater responsibility for the actions committed thanks to his off-handed signature. They have said that Bybee's understanding of his own wrongdoing outweighed by his desire to be a federal judge shocks the conscience, and that far from being rewarded for his obedience to his conservative minders, he should bear responsibility for it, to the fullest extent possible.

So what do we do now? Members of the California Democratic Party include 34 members of Congress, the Speaker of the House of Representatives, and six men and women who sit on the House Judiciary Committee, where an impeachment inquiry would be remanded. They need to hear that their party just recommended that they open an immediate Congressional inquiry into Judge Bybee, with all appropriate remedies and punishments available. In fact, the entire House Judiciary Committee needs to hear this. Thanks to my friends at Firedoglake, they will. We have put together a contact list for the entire House Judiciary Committee, and you can, with just a few clicks, compose a letter to any member of that Committee telling them of the CDP's action and demanding immediate action on an inquiry.

House Judiciary Committee
John Conyers, Michigan	Howard Berman, California
Rick Boucher, Virginia	Jerrold Nadler, New York
Robert C. Scott, Virginia	Mel Watt, North Carolina
Zoe Lofgren, California	Sheila Jackson-Lee, Texas
Maxine Waters, California	Bill Delahunt, Massachusetts
Robert Wexler, Florida	Steve Cohen, Tennessee
Hank Johnson, Georgia	Pedro Pierluisi, Puerto Rico
Luis Gutierrez, Illinois	Brad Sherman, California
Tammy Baldwin, Wisconsin	Charles Gonzalez, Texas
Anthony Weiner, New York	Adam Schiff, California
Linda Sánchez, California	Debbie Wasserman Schultz, Fl
Dan Maffei, New York	Lamar S. Smith, Texas
Jim Sensenbrenner, Wisconsin	Howard Coble, North Carolina
Elton Gallegly, California	Bob Goodlatte, Virginia
Dan Lungren, California	Darrell Issa, California
Randy Forbes, Virginia	Steve King, Iowa
Trent Franks, Arizona	Louie Gohmert, Texas<
Jim Jordan, Ohio	Ted Poe, Texas
Jason Chaffetz, Utah	Tom Rooney, Florida
Gregg Harper, Mississippi

In addition, you can call your members of Congress and tell them that they must support an immediate inquiry into the actions of Jay Bybee, federal judge on the 9th Circuit Court of Appeals. The Congressional switchboard at 1-866-220-0044 can connect you to your member of Congress as well. Here are some talking points:

• Jay Bybee signed the August 1, 2002 memo approving certain torture techniques to be used on mentally ill terror suspect Abu Zubaydah.

• The CIA’s Inspector General found that the torture of Abu Zubaydah and others foiled no terror plots and sent intelligence personnel on wild goose chases and false leads around the world. (McClatchy, 4.24.09)

• The California Democratic Party is the largest state party in the country, and they have spoken with one voice to demand hearings on Bybee.

• We are required by the Convention Against Torture to investigate and prosecute to the fullest extent of the law those who authorized and committed acts of torture.

• Judge Bybee's presence on the 9th Circuit disgraces the federal bench and saps at our moral authority in the world. Congress has a duty to step in and impeach him.

We now have this resolution as a tool. Let's use it to pry open the Congress and provide the opening of some accountability for these heinous acts committed in our name.

VICTORY: Impeachment Inquiry Into Bybee On Consent Calendar

Several weeks of hard work have paid off, and the California Democratic Party, the largest Democratic Party in the country, is poised to provide a major tool in the fight for justice and accountability for the Bush torture regime. The Resolutions Committee included on their consent calendar the resolution to begin a Congressional inquiry into Judge Jay Bybee and other lawyers who wrote opinions justifying and providing the fig leaf of a rationale for torture, with all punishments allowable under the law, including impeachment. The language was softened slightly from the original resolution, but as Congress must begin the inquiry to get to impeachment, this has the same practical effect and can be used.

Without the release of the OLC memo from August 1, 2002, showing Bybee admitting that waterboarding gives the impression of imminent death and allowing it anyway, showing Bybee allowing the CIA to put detainees in a small box with bugs in a Room 101-style exploitation of phobias, I'm not sure this resolution would have passed. A few weeks back, John Heaner, a party activist in the San Fernando Valley, offered the resolution, prior to the release of the memos.

After the release, the grassroots and netroots massed a groundswell of support. The Los Angeles County Democratic Party and other local organizations offered their support to the resolution. My petition to urge the CDP to support it gathered 4,827 signatures in about a week. Courage Campaign hopped aboard as well and got 9,000 or so sigs on their petition. Activists called the CDP offices and pushed for passage. And the party got the message.

This is part of a legitimate sea change inside the California Democratic Party. Yesterday Hillary Crosby, a progressive candidate, beat the incumbent in a race for state party Controller. After multiple scandals with releases of funds from the party and a lack of transparency and accountability, the grassroots decided they have had enough, and this time they have the numbers to make a difference. This has been a growing movement since the entry of the Deaniacs in 2005, and a tipping point of sorts has been reached. We really are seeing some change inside the party.

But the big story is this resolution, which can now be sent to all 6 Democratic California members of the House Judiciary Committee, as well as California's own House Speaker Nancy Pelosi. The Party that provides money and organization has decided to make their will known, that we want accountability for those who authorized torture in our name, that we do not want the continued presence of one of those authorizers for torture on the federal bench. Resolutions can go flat if they aren't picked up and used as a tool. Today, when it passes the full party on the convention floor in a few hours, we can celebrate. Tomorrow, we put this to work.

Thanks to everyone who put in the time and effort to get this done. This is a huge victory.

UPDATE: Here's the full text of the resolution:

CALLING FOR THE INVESTIGATION OF JUDGE JAY BYBEE AND OTHERS FOR THEIR ROLE IN ALLOWING TORTURE AS PART OF "ENHANCED INTERROGATION"

Whereas, former Assistant Attorney General, and current Federal Judge of the Court of Appeals for the Ninth Circuit Jay Bybee signed the "Bybee Memo," or "Torture Memo" of August 1, 2002, which advised the C.I.A. that "cruel, inhuman or degrading" treatment was at times allowable under U.S. law, and authored, co-authored and signed other memos on "extraordinary rendition" and "enhanced interrogation," more of which are being currently revealed to the American public as the new Administration brings them to light; and

Whereas the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment, the supreme law of the land under Article VI of our Constitution, requires the prosecution of those who authorize torture, and it has been established that waterboarding is torture; and

Whereas, on January 15, 2009 before leaving office, President George W. Bush, in an effort to cover his culpability, and the culpability of others, had his Office of Legal Counsel in the Department of Justice issue a memo stating that certain opinions issued in 2001-2003 with respect to "the allocation of authorities between President and Congress in matters of war and national security do not reflect the current view of this Office;"

Therefore be it resolved that the California Democratic Party supports resolution of inquiry and vigorous investigation of these and related actions by the Congress of the United States, including the full use of Congressional subpoena power authority and all appropriate remedies, to disclose completely the possible criminal actions of Judge Jay Bybee and others to the American people and to take necessary and available action with appropriate remedies and punishment allowed by law; and

Be it further resolved, that a copy of this resolution with its original authorization be sent to the Office of the Speaker of the United States House of Representatives, the Chair of the House Judiciary Committee, and the Majority Leader of the United States Senate, and that copies of the signed resolution be sent to each Democratic member of the California delegation to the United States Senate and House of Representatives.

Barbara Boxer On Bybee Impeachment: "I'm Very Open To That."

At a press avail following her speech at the California Democratic Party convention, I asked Sen. Boxer about the Resolutions Committee passing support for a Congressional inquiry into the actions of torture judge Jay Bybee and the imposition of all possible penalties including impeachment. She said "I'm very open to that.... there is an ongoing investigation at the Justice Department into his work (at the Office of Professional Responsibility -ed), and we'll see how that goes. But I'm very open to that. And I'll remind everyone that I didn't vote for him when his nomination came up. I was one of 19 to do so."

Needless to say, the support from Sen. Boxer will be a great help in the Resolutions Committee, when they prioritize the top ten resolutions to send to the floor of the convention tomorrow.

The other interesting tidbit from the presser was that Sen. Boxer offered no indication of her endorsement on the ballot measures for the special election on May 19. She says she and Sen. Feinstein haven't studied the measures yet, and that they will get together in Washington and offer a joint statement once they make their decision. "I'll let you know when I go public. But let me say this - the budget process in California is dysfunctional, because of the super-majority needed to pass a budget and tax increases. And until we get to the root causes of changing that, it's very difficult to do anything." This pretty much tracks with what we've been saying for a long time. Until you pass #1, it won't matter if you pass #2-#10.

Other topics covered included torture investigations (Boxer supports the Truth and Reconciliation Commission that Sen. Leahy recommended), the fate of cram-down provisions in the Senate ("Sen. Durbin is doing a heroic job... the banks are still a major lobbying group."), potential opponents in her 2010 re-election (I hope nobody runs against me!"), and the news of a budget reconciliation deal on health care in the Senate (she didn't have much to say on that other than that reconciliation should always be on the table, as it was during the Reagan years, and that the situation is "in flux.") Boxer was at her most eloquent answering a question about the rule of law and the impression that those at the highest levels of power, be it the banksters or the torture regime, were above it. "The law must prevail... the people should feel that something's wrong, if nothing is done on torture. If we don't like a law, we repeal it, we don't ignore it."

Resolutions Committee Passes Support For Congressional Inquiry Into Jay Bybee

The very, VERY good news is that the resolution to impeach Jay Bybee from the 9th Circuit Court of Appeals passed the Resolutions Committee with only small changes to the language. Any impeachment process must begin with a Congressional inquiry that gets remanded to the House Judiciary Committee. That's exactly the language we got, a resolution supporting a Congressional inquiry into Bybee and the other lawyers who justified torture. To everyone that signed petitions, you helped make this happen. We're not done yet, however. In order to get to the floor, the resolution must get ranked among the top ten at a "prioritizing" meeting today. Many more than ten resolutions passed in committee, so it will be a fight to get the Bybee resolution on the floor. I will be testifying in the committee today and lobbying for passage, armed with the thousands of signatures and personal testimonials gathered over the past week.

This could be as consequential as anything done in this convention, despite it happening off the floor and relatively outside of scrutiny. A resolution of support from the full CDP would be powerful. I'll keep you updated.

...Maybe some of Jay Bybee's anonymous friends will show up to speak on his behalf.

CDP Convention - On The Way

Headed out the door for a nice, leisurely six-hour drive through the Central Valley to Sacramento for another California Democratic Party Convention. Calitics will have full coverage, of course - many of our writers will be on hand, both as delegates and as plain old media. There's a lot to cover, from party elections to endorsements on the May 19 election to the resolution to impeach Jay Bybee from the 9th Circuit to the unofficial opening of the 2010 election.

The early pre-convention news is that Antonio Villaraigosa won't be making the trip with me (although there's still room in the car, so you never know). It's a confusing development, considering all the high-profile events other gubernatorial hopefuls Gavin Newsom and Jerry Brown are holding (Jerry's got a kegger at the old Governor's Mansion, while Gavin is part of an outdoor block party featuring Wyclef Jean). But that may be the reason, as Villaraigosa wasn't able to compete.

Villaraigosa’s press office sent out a release announcing: “Mayor Villaraigosa today announced that he will convene emergency weekend meetings with union leaders to tackle the city's budget crisis.

“Talks will focus on ways to close a $530 million budget deficit through shared sacrifice and shared responsibility. The Mayor will begin meetings in City Hall with labor leaders on Friday evening and will continue through the weekend.” [...]

Calbuzz asked Tony V spokesman Sean Clegg if the emergency budget session was "just a lame, bullshit excuse" to skip the convention. “It’s exactly the opposite of that," Clegg said. "The city of Los Angeles and most cities across California are facing an unprecedented economic crisis and jobs come first.”

Clegg said Villaraigosa is putting the needs of his city before his personal political fortunes by trying to pull together an agreement that would require labor unions to give back some hard-earned gains in order to save jobs and services in Los Angeles.

“This is a leadership moment. Antonio Villaraigosa is not going to Twitter while Rome burns,” Clegg said -- a clear shot at the other mayor who would be governor: San Francisco's Gavin Newsom.

At the same time, a Tulchin Research/Acosta|Salazar pre-convention poll (which is three weeks out, but released on convention eve) shows Villaraigosa slipping. The poll had Garamendi in the race at the time.

Tulchin Research/Acosta|Salazar +/- 4.5% (Mar. 31-Apr. 2)
Brown 31%
Newsom 16%
Villaraigosa 12%
Garamendi 11%
O'Connell 6%
Other 4%
Undecided 20%

Obviously, that top-line support is soft, with 1 in 5 undecided. But I'm frankly surprised how quickly this is turning into a two-horse race, which could actually open the door for a progressive movement candidate, if one existed. But alas...

Anyway, those are just a couple of the issues we'll see unfold. Stay with us throughout the weekend.

(I've teed up a few posts while I'm on the ride, but it'll be a light post day until late afternoon)

CDP Convention Tomorrow - Last Chance To Sign Petitions To Impeach Bybee

I'll do a fuller convention preview post in the morning, but just a final mention - I have a petition to tell the CDP to support the resolution to impeach federal Judge Jay Bybee, who sits on the 9th Circuit Court of Appeals despite having been one of the architects of the flawed legal justification for torture committed in our name. There are musings about independent commissions and special prosecutors in Washington - the establishmentarians in the Senate and the more cautious types in the White House are trying to resist the pressure, but this is bigger than them now.

The central debate dominating discussions of a possible investigation into torture by the Bush administration seems to have shifted sharply in the past few days: from whether such an investigation should take place, to now what form it will have when it comes [...]

Thursday morning, Sen. Claire McCaskill told MSNBC that she was "sure there will be some form of investigation in Congress." She said she could not make the same value judgments about the other two forms of investigation.

Meanwhile, one of the few legislative vehicles actually geared toward starting the torture investigation process already has bipartisan support. Legislation backed by House Judiciary chairman John Conyers to establish "a national commission on presidential war powers and civil liberties" has one rather notable co-sponsor: Republican Rep. Walter Jones, a vocal GOP critic of the Bush administration. Jones' office did not return requests for comment but Conyers' office confirmed the North Carolinian remains a co-sponsor of the legislation.

I believe this is a direct result of the grassroots activism of the past week or so, and we must press on all fronts, and the impeachment of Bybee, who sits on the 9th Circuit in San Francisco, is particularly acute here in this state. Currently I have 4,435 signatures - please sign by midnight tonight and I will present yours and everyone else's name at the Resolutions Committee tomorrow at 3pm. If we get this resolution passed, we will have a powerful tool to force California members of Congress to initiate hearings in the House Judiciary Committee to impeach Bybee. I think it's absolutely possible that we make this happen over the weekend - but the leadership of the CDP needs to know that there's a large and powerful constituency behind this effort.

Please sign the petition if you haven't already. And California's Courage Campaign has their own petition, with around 8,500 signatures at last count. 13,000 people arguing for impeachment is a powerful number - let's go for more. I'll let you know how it goes.

Only If You Ignore The Law

The LA Times prints the opinion of a few legal minds and decides that it would be impossible to prosecute lawyers for their legal opinions authorizing torture.

First, the lawyers would have to be shown to have deliberately misinterpreted the law against torture.

"It would be a real stretch. As long as they thought they were honestly interpreting the [anti-torture] law, they are not criminal conspirators," said Stephen A. Saltzburg, a law professor at George Washington University and a former prosecutor. "They may be bad lawyers who gave extremely bad advice," he said, but that is not a crime [...]

In this instance, a prosecutor would have to show that Yoo or Bybee intentionally misstated the anti-torture law. "Given the somewhat subjective basis for almost all legal analysis, I don't know how you would ever prove that," said Stanley Brand, a Washington lawyer and onetime counsel to former House Speaker Thomas P. "Tip" O'Neill Jr.

"You would have to show they knowingly gave bogus advice," said Peter Zeidenberg, a former prosecutor in the Justice Department's public integrity unit. "Theoretically, you could do it, but only if you had evidence they knew that's what they were really doing."

Legal experts said they would see the matter differently if the focus was on war crimes and international law.

Except, you know, the focus IS on war crimes and international law, which these torture memo writers expressly disobeyed. Even in the Bradbury memo of 2005, he admits that this country condemns the use of these techniques when employed by other countries.

The United States condemns coercive interrogation techniques and other practices employed by other countries. Certain of the techniques the United States has condemned appear to bear some resemblance to CIA interrogation techniques [...]

The State Department’s inclusion of nudity, water dousing, sleep deprivation, and food deprivation among the conduct it condemns is significant and provides some indication of an executive foreign relations tradition condemning the use of these techniques.

The reason we condemn those acts of torture (and thank you John Boehner for finally calling it that) is because they are illegal, and when practiced by our own leaders we have an obligation to hold those who authorized and directed torture accountable.

many people, such as Scott Horton, have argued that prosecutions of Bush DOJ lawyers who authorized torture find precedent in the Nuremberg prosecutions (as part of the Justice Case) of German lawyers who also declared various war crimes to be legal. International law professor Kevin Jon Heller -- who questioned the applicability of that precedent -- today writes about a separate set of prosecutions by the Nuremberg Military Tribunal, as part of The Ministries Case, in which German officials were prosecuted for doing nothing other than stating, when asked, that they had no objection to the deportation of 5,000 Jews from France. Those officials, who were convicted at Nuremberg, did not order the deportation or carry it out; rather, they merely failed, when asked, to object to the policy on the ground that it violated international law. Professor Heller argues that this case provides an almost perfect precedent for holding OLC torture-authorizing officials accountable (emphasis in original):

The parallels between the Foreign Office’s role in the SS deportations and the OLC’s role in the CIA’s torture regime are uncanny. Nothing is lost if we simply substitute "Yoo, Bybee, and Bradbury" for "Woermann and von Weizsaecker," "OLC" for "Foreign Office," and "torture" for "deportations."

Indeed, in one critical respect, the case against the authors of the OLC memos is even stronger than the case against von Weizsaecker and Woermann. The latter’s criminal participation in the deportations consisted solely of omissions -- failing to point out that the deportations violated international law. The former’s criminal participation in the CIA’s torture regime, by contrast, consists of both acts and omissions, because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime.

Now, you can argue, like McCain, Rosencrantz and Guildenstern, that poor legal advice is not a crime, but you would be at odds with international law and precedent. At the very, very least, kep architects of the torture regime shouldn't still have a job in the US Government, or as a federal judge with a lifetime appointment. But ruling out prosecutions as impractical just rules out the law itself.

I'll throw in a last plug for my petition to have the California Democratic Party pass a resolution to impeach Jay Bybee from the 9th Circuit Court of Appeals. I have 4,420 signatures on the petition already, and I will present them at the Resolutions Committee tomorrow.

The Rogue's Gallery

Chris Matthews has Jon Ensign dancing on the head of a pin today, as he tries to distinguish between Gitmo and the exact same techniques and abuses at Abu Ghraib, as he tries to dismiss the Senate Armed Services Committee document as a "Democrat (sic) report" when the ranking member, one John McCain, signed off on it, claiming that the intelligence gained through torture stopped "a terrorist attack in California" when that attack was allegedly thwarted a year before KSM was captured, etc. It's just not worth the breath of the argument, though seeing the Republican Party become The Party of Torture right before our eyes just pushes them further into a cocoon of irrelevance.

What concerns me is whether or not we'll see any accountability for the architects of torture. Let's start with the California Two, Jay Bybee and John Yoo, one who has burrowed into the federal judiciary, the other who has no problem defending his discredited, insane theories of executive power. Yoo held a public event yesterday, in the middle of this:

At a spirited forum Tuesday at (Chapman University), Yoo, who was the author of much of the legal rationale for using waterboarding and other severe interrogation techniques, defended his legal guidance as correct and necessary to protect the nation.

"Three thousand of our fellow citizens had been killed in a deliberate attack by a foreign enemy," Yoo, unruffled by shouts that he is a war criminal and should be in jail, told a packed auditorium on the Orange County campus. "That forced us in the government to have to consider measures to gain information using presidential constitutional provisions to protect the country from further attack."

In a war with a non-state enemy that doesn't follow international law, getting information from captured combatants is vital, Yoo said, contending that 50% of U.S. intelligence about Al Qaeda was gleaned from interrogations.

"Was it worth it?" he asked, brushing off the reproachful reaction. "We haven't had an attack in more than seven years."

Correlation is not causation, and anyway, terrorism has of course skyrocketed worldwide since 9/11. John Yoo is a moral reprobate who would subvert the Constitution to use techniques that have not made us safer, have endangered our relations with allies, and quite simply violated both domestic and international law, not to mention the conscience of the sane. After the DoJ IG report, which I suspect will denounce his flawed reasoning, he should be disbarred.

Bybee burrowed into the federal judiciary so he won't go public on these issues, but for much the same reasons he ought to be impeached. John Dean doesn't seem to think it could happen, because of the precedent set by Justice Chase over "impeaching and removing an office holder for his or her official opinions", but other legal scholars disagree, and in this case, Nuremberg precedent shows that those opinions constitute a violation of war crimes statutes.

Moving on, we have a key architect, John Rizzo at the CIA, still working for the Obama Administration.

John Rizzo, the man who worked with both Jay Bybee and Steven Bradbury to pre-authorize torture, is still being paid by you and me to make sure that the CIA follows the law.

As the SASC report notes, Rizzo is the man who provided the list of torture techniques to Jay Bybee for inclusion in the memo--the key link in turning SERE techniques into torture.

"According to Acting CIA General Counsel John Rizzo, the techniques that the OLC analyzed in the Second Bybee memo were provided by his office. In his testimony before the Senate Select Committee on Intelligence, Mr. Rizzo stated that his office was 'the vehicle' for getting the interrogation practices analyzed in the Second Bybee memo to the Department of Justice."

That information that Rizzo gave to OLC were a bunch of lies, by the way, and to the extent that they mitigated OLC opinions over torture, he certainly is implicated in designing the torture regime. How does he still hold a job in this executive branch?

Jane Mayer cites a couple other culprits for us:

The Levin report provides some new details. On April 16, 2002—a couple weeks after Zubaydah’s capture, and three and a half months before the Bybee memo—a military psychologist named Dr. Bruce Jessen was already circulating a blueprint for cruelly coercive interrogations based on torture methods used by Chinese Communist forces during the Korean War. The report describes Jessen’s blueprint as a “draft exploitation plan” for U.S.-held captives. (I wrote about Dr. Jessen’s partner, James Mitchell, in the July 11, 2005, issue of The New Yorker.)

By June 2002—again, months before the Department of Justice gave the legal green light for interrogations—an F.B.I. special agent on the scene of the interrogation of Abu Zubaydah refused to participate in what he called “borderline torture,” according to a D.O.J. investigation cited in the Levin report. Soon after, F.B.I. Director Robert Mueller commanded his personnel to stay away from the C.I.A.’s coercive interrogations.

What did the F.B.I. see in the spring of 2002? And exactly who was involved? How high up was this activity authorized? Is it off-limits for criminal investigation?

There are plenty of new names and details in the Armed Services Committee report, including a scene of two military men teaching the C.I.A. how to use Chinese torture techniques. One of the instructors, Joseph Witsch, played the “beater,” while the other, Gary Percival, became the “beatee.” By the mid-summer of 2002, beating was no longer just an academic exercise. Precisely when these tactics were used on live captives, and at what point top Bush officials endorsed them, may be a matter of serious interest to Attorney General Eric Holder.

The list goes on and on. And we should follow the lead of Dick Cheney and offer full disclosure, and then let the chips fall where they may. And that includes prosecution.