Justice And Accountability By Inches

After 9/11, among the many deprivations of civil liberties and violations of federal and international law, Attorney General of the United States John Ashcroft gave the FBI the power to detain and interrogate thousands of Muslim-Americans across the country as "material witnesses" without charges. We know little about the number of people detained, the nature of the interrogations and the extent of the abuse heaped on the prisoners. We do know, based on Ashcroft's own words, that this policy sought to pre-emptively detain Muslim-Americans suspected by the Bush Administration of future acts of terrorism or extremism, despite not having any evidence required to charge the suspects.

Yesterday, a federal appeals court panel, composed of two Bush 43 appointees and a Reagan appointee, allowed a case to go forward that would hold John Ashcroft liable for violating one detainee's Constitutional rights under the 4th and 5th Amendments.

The court found that a man who was detained as a witness in a federal terrorism case can sue Ashcroft for allegedly violating his constitutional rights. Abdullah al-Kidd, a U.S. citizen and former University of Idaho student, filed the lawsuit against Ashcroft and other officials in 2005, claiming his civil rights were violated when he was detained as a material witness for two weeks in 2003.

He said the investigation and detention not only caused him to lose a scholarship to study in Saudi Arabia, but cost him employment opportunities and caused his marriage to fall apart.

He argued that his detention exemplified an illegal government policy created by Ashcroft to arrest and detain people -- particularly Muslim men and those of Arab decent -- as material witnesses if the government suspected them of a crime but had no evidence to charge them [...]

''Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world,'' Judge Milan D. Smith Jr. wrote. ''We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.''

You can read the 9th Circuit's opinion in the case, including the circumstances Abdullah al-Kidd found himself in back in 2003. Al-Kidd, a Muslim convert of African-American descent, planned a flight to Saudi Arabia to study on a law scholarship at a Saudi university. He was arrested at the airport under the material witness statute on a separate case, held for 16 days in detention centers in Virginia and Idaho, strip-searched on multiple occasions, and after several interrogations, eventually released. He was never called as a witness in the case on which he was arrested (a case where the individual was acquitted), nor has he been charged with any crime or called in on any other proceeding.

The ruling basically states that Ashcroft is liable for an unconstitutional policy that purposely violated the rights of al-Kidd, and by association thousands of other potential defendants, using the material witness statute just to hold anyone he fancied. If it survives appeal, the government will have to release all documents pertaining to the material witness policy under Ashcroft.

Glennzilla says the impact of this is to show the illegality and immorality of a preventive detention policy - one which this Administration might assert later this year. I agree with that, but I think its impact is slightly different. What it shows is that there are so many people whose lives have been touched - in some cases irreparably - by the terror practices of the Bush regime that there will be no limit to the actions to seek justice and accountability. The suits will continue, one by one, and the rulings made, over and over, and out of the thousands, at least one will find a crack. A legal hole in the framework of official secrecy and efforts by the executive branch to shut down the judiciary. And that hole will beget more holes. The groups and defendants striving for accountability will not stop because they rest on the principle of equal justice under the law, and to give up would signal the effective end of the American system.

Under the Bush Administration, officials in the highest levels of government committed heinous crimes, crimes to which they are only beginning to be held to account. The effort by the Obama Administration to indemnify those officials for those crimes just won't work. Little by little, good men and women with the law on their side will probe and appeal and file suit, and we will see justice. It's only a matter of time.

Too Big, Period.

What will post-recession Wall Street look like? The President talks about a smaller financial sector as a function of a stronger economy.

And so I wonder if you would be willing to describe a little bit of your learning curve about finance, and what you envision finance being in tomorrow’s economy: Does it need to be smaller? Will it inevitably be smaller?

THE PRESIDENT: Well, first of all, I think that we should distinguish between finance as the lifeblood of our economy and finance as a significant industry where we have a comparative advantage — right? So in terms of just growing our economy, we’ve got to have enough credit out there to fund businesses, large and small, to allow consumers the flexibility to make long-term purchases like cars or homes. So that’s not going to change. And I would be concerned if our credit market shrunk in ways that did not allow for the financing of long-term growth.

What that means is not only do we have to have a healthy banking sector, but we’re going to have to figure out what we do with the nonbanking sector that was providing almost half of our credit out there. And we’re going to have to determine whether or not as a consequence of some of the steps that the Fed has been taking, the Treasury has been taking, that we see the market for securitized products restored.

I’m optimistic that ultimately we’re going to be able to get that part of the financial sector going again, but it could take some time to regain confidence and trust.

What I think will change, what I think was an aberration, was a situation where corporate profits in the financial sector were such a heavy part of our overall profitability over the last decade. That I think will change. And so part of that has to do with the effects of regulation that will inhibit some of the massive leveraging and the massive risk-taking that had become so common.

Now, in some ways, I think it’s important to understand that some of that wealth was illusory in the first place.

So we won’t miss it?

THE PRESIDENT: We will miss it in the sense that as a consequence of 25-year-olds getting million-dollar bonuses, they were willing to pay $100 for a steak dinner and that waiter was getting the kinds of tips that would make a college professor envious. And so some of the dynamic of the financial sector will have some trickle-down effects, particularly in a place like Manhattan.

But I actually think that there was always an unsustainable feel about what had happened on Wall Street over the last 10, 15 years, and it’s not that different from the unsustainable nature of what was happening during the dot-com boom, where people in Silicon Valley could make enormous sums of money, even though what they were peddling never really had any signs it would ever make a profit.

That doesn’t mean, though, that Silicon Valley is still not a huge, critical, important part of our economy, and Wall Street will remain a big, important part of our economy, just as it was in the ’70s and the ’80s. It just won’t be half of our economy. And that means that more talent, more resources will be going to other sectors of the economy. And I actually think that’s healthy. We don’t want every single college grad with mathematical aptitude to become a derivatives trader. We want some of them to go into engineering, and we want some of them to be going into computer design.

Rhetorically this is very right, but as I've said the policies being undertaken don't fit the rhetoric at all. They seem far more designed to reinflate the financial sector and allow them no consequence for their bad decisions. Maybe this comes later, with regulatory reform. That certainly seems to be the signal from the President.

Let's try to define the problem and work backwards. Clearly, the growth of finance in terms of salary and proportion of the overall economy has gone completely out of balance. The power of Wall Street financiers provides one reason for this, but so does the newfangled structure of the economy which rewards such behavior.

This wasn’t the first time that something like this had happened. There have been three big banking booms in modern U.S. history. The first began in the late nineteenth century, during the Second Industrial Revolution, when bankers like J. P. Morgan funded the creation of industrial giants like U.S. Steel and International Harvester. The second wave came in the twenties, as electrification transformed manufacturing, and the modern consumer economy took hold. The third wave accompanied the information-technology revolution. Each wave, Philippon shows, was propelled by the need to fund new businesses, and each left finance significantly bigger than before. In all these cases, it wasn’t so much that the bankers had changed; the world had.

The same can’t be said, though, of the boom of the past decade. The housing bubble was unique, and uniquely awful. Each of the previous waves had come in response to a profound shift in the real economy. With the housing bubble, by contrast, there was no meaningful development in the real economy that could explain why homes were suddenly so much more attractive or valuable. The only thing that had changed, really, was that banks were flinging cheap money at would-be homeowners, essentially conjuring up profits out of nowhere. And while previous booms (at least, those of the twenties and the nineties) did end in tears, along the way they made the economy more productive and more innovative in a lasting way. That’s not true of the past decade. Banking grew bigger and more profitable. But all we got in exchange was acres of empty houses in Phoenix.

The giant pool of money, the large chunk of investment capital from around the world, had to park itself somewhere, and suddenly US home sales became the preferred bet. And then mortgage securitization led to a complete rewriting of the rules for who qualified for loans, and you know the rest.

How can we counteract this? Well, making the financial sector operate without the massive amounts of leverage that encourage bad bets would be a start. Suroweicki thinks we can hope for Wall Street to "recognize that its proper role is, as it has been in the past, to follow the real economy, rather than trying to drive it." I just don't find that realistic, given their power and their mindset. And so we need the independent Pecora Commission that will apparently be chaired to have some real power to make real recommendations that would rein in Wall Street and ensure their growth gets stunted. And forgive me for quoting John Ashcroft, but we need some real accountability and charges filed against any companies that may have broken the law. Interestingly, Ashcroft doesn't believe in the same kind of accountability for torture.

The government must hold accountable any individuals who acted illegally in this financial meltdown, while preserving the viability of the companies that received bailout funds or stimulus money. Certainly, we should demand justice. But we must all remember that justice is a value, the adherence to which includes seeking the best outcome for the American people. In some cases it will be the punishing of bad actors. In other cases it may involve heavy corporate fines or operating under a carefully tailored agreement.

(Do you think the editorial page editors of the Times openly snickered when they accepted this op-ed, and were all too happy to give Ashcroft the rope to hang himself?)

Banks need to understand their core function of providing the swift flow of capital, not to create wealth markets for themselves. That can be achieved through responsible regulation.

A Host Of Landmines

I've been saying for some time that the Bush legacy will long outlast January 20, 2009, because there will be midlevel officials, executive orders and the like littered all throughout the government, ready to undermine the efforts of a potential incoming Democratic President. We're starting to learn about that with respect to the Justice Department.

High-ranking political appointees at the Justice Department labored to stock a prestigious hiring program with young conservatives in a five-year-long attempt to reshape the department's ranks, according to an inspector general's report to be released today.

The report will trace the effort to 2002, early in the Bush administration, when key advisers to then-Attorney General John D. Ashcroft moved to exert more control over the program to hire rookie lawyers and summer interns, according to two people familiar with the probe.

The honors program, which each year places about 150 law school graduates with top credentials in a rotation of Justice jobs, historically had operated under the control of senior career officials. Shifting control of the program to Ashcroft's advisers prompted charges of partisanship from law professors and former government lawyers who had worked under Democratic administrations.

Here's the full report. This was a Monica Goodling special. She directed the candidate selection process and handed it over to Mike Elston, Chief of Staff to Deputy AG Mike McNulty. All of these folks have resigned now, but their legacy remains. And their subordinates, the hands-on people involved in the hiring of these career attorneys, filtered out candidates with any trace of Democratic or liberal politics in their background, and subsequently DESTROYED their applications. Some examples (McDonald refers to Esther McDonald, one of the hiring managers):

[A]n OARM employee ... recalled that one of the [deselected] candidates she raised to DeFalaise's attention was first in his law school class at Georgetown University, had clerked for a federal district court judge, and was currently clerking for a Second Circuit judge. [footnote 41: This candidate also had worked as a law clerk for Senator Russell Feingold, a Democrat, and for Human Rights Watch, but the OARM employee does not recall pointing out the candidate's political or ideological affiliations to DeFalaise at this time.] (59-60)

Elston also told Mercer that he had already scheduled the December 5 meeting to gauge what people's concerns were [with the selection process]. Elston said he intended to explain the process the Committee had followed so the components would have "a clear understanding of what we did, and what we learned, and what the basis for the strikes were." Mercer told us that he later learned from Associate Deputy Attorney General David Margolis, a senior career Department official, that the December 5 meeting had not gone well and that a lot of people had left the meeting "disturbed" and "not satisfied." (64)

The Committee used paper copies of the applications on which Fridman and McDonald made handwritten notations about the applicants, but those documents were destroyed prior to the initiation of our investigation. (68,69)

McDonald declined to be interviewed during our investigation. When we first contacted her in September 2007 for an interview, she was a Counsel to the Associate Attorney General. She initially agreed to a tentative date for her interview, but she later asked us to postpone the interview while she retained counsel. We agreed. After McDonald retained an attorney, and after allowing time for the attorney to familiarize himself with the matter, a new date for the interview was set, October 25, 2007. However, at 5:15 p.m. on October 24, McDonald's attorney e-mailed our investigators to advise them that his client was canceling the interview. The attorney added that McDonald was no longer employed by the Department. We learned that McDonald had resigned from the Department, effective October 24. On the evening of October 23, she had told her supervisor, Acting Associate Attorney General Katsas, that the next day would be her last day at the Department. Katsas said that her resignation came as a surprise to him. (75)

Elston confirmed that Fridman raised with him early in the review process Fridman's concerns that McDonald was deselecting candidates based on "membership in liberal organizations, or those kind of things," revealed in the candidate's application or from Internet searches she conducted. Elston said he reviewed the applications Fridman noted and saw that McDonald had either circled or written comments about liberal affiliations on the applications and then voted to deselect those candidates. (81)

Elston said he thought he recalled McDonald indicating it was a negative factor if a candidate had worked for a Democrat. (82)

Elston said he did not want to accuse McDonald of doing something inappropriate because he speculated that Goodling may have told McDonald to do what she was doing. (83)

These are, as is known, violations of federal law. Nothing will be done about it because most of those responsible are already out of government and accountability isn't part of the culture of Washington these days. The real impact will be felt when laws from a Democratic President are not implemented, or a staffer leaks information incriminating the executive or his staff, or any of a thousand options that hardcore right-wing DoJ staffers have to damage the opposition party.

When you fail to engage in the most basic oversight and offer even the threat of punishment, a rogue President and his allies can really do just about anything. You can pass laws and they simply don't get followed. You can consider subpoenas for officials who fail to comply with oversight investigations, and the officials just decline. You can take them to court, but the judge doesn't want to get involved and informs the Congress that they could have solved this on their own anyway:

Congress was trying to be diplomatic when it brought an unprecedented lawsuit to settle its subpoena fight against the White House, a lawyer told a federal judge Monday. After all, lawmakers could've just arrested the president's former lawyer for refusing to testify.

The judge's response?

Maybe they should have.

Congress has the authority to hold someone in contempt, U.S. District Judge John Bates said. Did it really need to go to court?

Congress insists on taking most of their bullets out of the chamber and then begging the executive branch to be reasonable, after they have shown no interest in ever doing so. This is how you get the DoJ hiring far-right conservatives and breaking the law with impunity. And getting caught doesn't seem to be an obstacle.

The next four to eight years, should Sen. Obama win, will be littered with "exclusive" stories from inside the DoJ of corruption and politicization and all sorts of malfeasance. These "honor" students are who those charges will be coming from. It'll be a total reversal and somebody had better recognize it.

UPDATE: The more you read this DoJ report, the crazier it gets. They actually denied someone a job because he liked wolves.

Mercer responded by e-mail that he was inquiring with a reference the candidate listed whom Mercer knew to find out "the scoop on intellect, personality, etc." Mercer added:

My initial reaction is that the guy is probably quite liberal. He is clerking for a very activist, ATLA-oriented justice. His law review article appears to favor reintroduction of wolves on federal lands, a very controversial issue here which pits environmentalists against lots of other interests, including virtually all conservative and moderate thinkers. I know of better candidates through our internship and clerkship programs who have applied to the honors program.

There are copious charts and graphs showing the "deselection" process and how liberals (or maybe conservatives who liked wolves, who knows?) were filtered out. The Attorney General says he's accepted all the recommendations in the IG report. Of course he will NOW, the landmines have already been set.

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.

The First Salvo In The Next Nuremberg

A Daily Kos diarist and several other citizens were able to question John Ashcroft last night on the subject of torture. His denials were outright revealing and show the nervousness these people feel.

TOM: This story was made public by ABC a few weeks ago. It claims that you, Rice, Tenet and others met in the White House to discuss different methods of "enhanced interrogation," is that correct?

ASHCROFT: (angrily) Correct? Is what correct? Is it correct that this story ran on ABC? I don't know that. I don't know anything about it! Is it a real story? When was this story, huh? Huh?

TOM: Um, early April, April 9th, I think...

ASHCROFT: (interrupting) You think? You think? You don't even know! Next question!

TOM: The article says that you discussed "whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning"...

ASHCROFT: I said, next question!

So when confronted with the fact, Ashcroft deliberately misinterprets the question, asks an irrelevant technicality, (which the kid answered correctly, it was April 9, and uses the technicality to wiggle out of the question. Here the lack of follow-up on the ABC story is crucial, as Ashcroft is able to sow confusion about the story itself because it just hasn't been widely reported.

Next:

Another student asked if Ashcroft's position on torture violated the Geneva Conventions or other international laws:

ASHCROFT: No. No it doesn't violate the Geneva Conventions. As for other laws, well, the U.S. is a party to the United Nations Convention against Torture. And that convention, well, when we join a treaty like that we send it to the Senate to be ratified, and when the Senate ratifies they often add qualifiers, reservations, to the treaty which affect what exactly we follow. Now, I don't have a copy of the convention in front of me...

ME: (holding up my copy) I do! (boisterous applause and whistling from the audience) Would you like to borrow it?

ASHCROFT: (after a pause) Uh, you keep a hold of it. Now, as I was saying, I don't have it with me but I'm pretty sure it defines torture as something that leaves lasting scars or physical damage...

A STUDENT FROM THE AUDIENCE: Liar! You liar! (the student is shushed by the audience)

ASHCROFT: So no, waterboarding does not violate international law.

Well, that's just not true. The UN human rights chief has said waterboarding should be prosecuted as torture. The definition of the UN Convention Against Torture is right here.

"severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession...."

And members of the UN Committee Against Torture have agreed that waterboarding falls under it.

Now, watch the sleight-of-hand here, remembering that Ashcroft brought up the UN Convention Against Torture in the first place.

ME: First off, Mr. Ashcroft, I'd like to apologize for the rudeness of some of my fellow students. It was uncalled for--we can disagree civilly, we don't need that. (round of applause from the audience, and Ashcroft smiles) I have here in my hand two documents. One of them, you know, is the text of the United Nations Convention against Torture, which, point of interest, says nothing about "lasting physical damage"...

ASHCROFT: (interrupting) Do you have the Senate reservations to it?

ME: No, I don't. Do you happen to know what they are?

ASHCROFT: (angrily) I don't have them memorized, no. I don't have time to go around memorizing random legal facts. I just don't want these people in the audience to go away saying, "He was wrong, she had the proof right in her hand!" Because that's not true. It's a lie. If you don't have the reservations, you don't have anything. Now, if you want to bring them another time, we can talk, but...

Well, actually, he WAS wrong, because he tried to claim that the UN Convention was strictly defined as physical harm, that being wrong, he retreated to the idea of reservations and qualifiers. I have those reservations right here (scroll down for "United States"), and here's the key line:

(1) (a) That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

Waterboarding simulates drowning. That would fall under the intentional inflicting of suffering and the threat of imminent death.

So, you know, Ashcroft was wrong again.

Now watch Ashcroft try to muddy a clear precedent.

ME: Actually, Mr. Ashcroft, my question was about this other document. (laughter and applause) This other document is a section from the judgment of the Tokyo War Tribunal. After WWII, the Tokyo Tribunal was basically the Nuremberg Trials for Japan. Many Japanese leaders were put on trial for war crimes and crimes against humanity, including torture. And among the tortures listed was the "water treatment," which we nowadays call waterboarding...

ASHCROFT: (interrupting) This is a speech, not a question. I don't mind, but it's not a question.

ME: It will be, sir, just give me a moment. The judgment describes this water treatment, and I quote, "the victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach." One man, Yukio Asano, was sentenced to fifteen years hard labor by the allies for waterboarding American troops to obtain information. Since Yukio Asano was trying to get information to help defend his country--exactly what you, Mr. Ashcroft, say is acceptible for Americans to do--do you believe that his sentence was unjust? (boisterous applause and shouts of "Good question!")

ASHCROFT: (angrily) Now, listen here. You're comparing apples and oranges, apples and oranges. We don't do anything like what you described.

ME: I'm sorry, I was under the impression that we still use the method of putting a cloth over someone's face and pouring water down their throat...

ASHCROFT: (interrupting, red-faced, shouting) Pouring! Pouring! Did you hear what she said? "Putting a cloth over someone's face and pouring water on them." That's not what you said before! Read that again, what you said before!

ME: Sir, other reports of the time say...

ASHCROFT: (shouting) Read what you said before! (cries of "Answer her fucking question!" from the audience) Read it!

ME: (firmly) Mr. Ashcroft, please answer the question.

ASHCROFT: (shouting) Read it back!

ME: "The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach."

ASHCROFT: (shouting) You hear that? You hear it? "Forced!" If you can't tell the difference between forcing and pouring...does this college have an anatomy class? If you can't tell the difference between forcing and pouring...

ME: (firmly and loudly) Mr. Ashcroft, do you believe that Yukio Asano's sentence was unjust? Answer the question. (pause)

ASHCROFT: (more restrained) It's not a fair question; there's no comparison. Next question! (loud chorus of boos from the audience)

Well, if Ashcroft thinks he can bully an international criminal court the way he tried to bully a few college students last night, he's going to come off looking just as foolish. Because Ashcroft had the foresight to say "History will not judge us kindly" during the Principals meetings on torture, some have made the effort to rehabilitate him to a degree. I think we can end that now. He's guilty and he knows it, that's why his arguments were so very shallow. A court of law would convict in a matter of minutes.

Justice, Bush-Style

Fresh off Eric Lichtblau's reporting on warrantless wiretapping and his new book on justice in the age of Bush (here's a great intereview with him, by the way), he has another article showing the nexus between the Justice Department and corporate power.

In a major shift of policy, the Justice Department, once known for taking down giant corporations, including the accounting firm Arthur Andersen, has put off prosecuting more than 50 companies suspected of wrongdoing over the last three years.

Instead, many companies, from boutique outfits to immense corporations like American Express, have avoided the cost and stigma of defending themselves against criminal charges with a so-called deferred prosecution agreement, which allows the government to collect fines and appoint an outside monitor to impose internal reforms without going through a trial. In many cases, the name of the monitor and the details of the agreement are kept secret.

Deferred prosecutions have become a favorite tool of the Bush administration. But some legal experts now wonder if the policy shift has led companies, in particular financial institutions now under investigation for their roles in the subprime mortgage debacle, to test the limits of corporate anti-fraud laws.

"Deferred prosecutions" is such a symbol of the Bush era, an anodyne term standing in for a much more sinister outcome. "Vanished prosecutions" is more like it. If you wonder why corporations are taking such heavy risks and edging the line of legality, like the lending industry in the mortgage mess, you can look simply to the twin engines of deregulation and deferred prosecutions. It adds up to a total lack of accountability, and a concomitant lack of responsibility. Of course, this aids those members of the White House inner circle who leave to go raid the public treasury in corporate America:

Deferred prosecution agreements, or D.P.A.’s, have become controversial because of a medical supply company’s agreement to pay up to $52 million to the consulting firm of John Ashcroft, the former attorney general, as an outside monitor to avoid criminal prosecution. That agreement has prompted Congressional inquiries and calls for stricter guidelines [...]

At a Congressional hearing last month, Mr. Ashcroft defended the agreements, saying that they avoided “destroying entire corporations” through criminal indictments. “Prosecutors understand that a corporate indictment can be a corporate death sentence,” he said. “A deferred prosecution can avoid the catastrophic collateral consequences and costs that are associated with corporate conviction.”

Yeah, that's the point. That's kind of what keeps corporations from engaging in criminal acts; the possibility of being destroyed. A world without that possibility is a world without rules.

By contrast, the real criminals from the Bush Administration's perspective, you know, Democrats, will be prosecuted for the thinnest of reasons.

Mary Beth Buchanan, the U.S. Attorney in Pittsburgh, has long been the subject of questions about partisan prosecutions. But in 2006, Buchanan raised more than a few eyebrows when she went after former Allegheny County Coroner Dr. Cyril Wecht, indicting him on multiple counts of various federal crimes, including theft from an organization that receives federal funds.

What, exactly, did Wecht do? Apparently, his transgressions included the improper use of the coroner’s fax machine for private work. Of course, there was no evidence “of a bribe or kickback” and no evidence that Wecht traded on a conflict of interest.

But Wecht’s a Democrat, and for a U.S. Attorney anxious to impress her superiors in the Bush administration, apparently that was enough.

Fortunately, the remaining vestiges of an independent judiciary worked in this case, which closed this week with a hung jury. Even the jury foreman had to admit that the case was politically motivated.

Wechttp://www.blogger.com/img/gl.link.gifht's attorneys, among them former attorney general Dick Thornburgh, have charged that U.S. Attorney Mary Beth Buchanan pursued the case out of political motivations.

Today, the jury foreman, speaking to The Pittsburgh Post-Gazette, was even more explicit: "[A]s the case went on my thoughts were this was being politically driven."

If Wecht had only thought to incorporate himself, he could have spared years of trials and legal fees and gooten off with a "deferred prosecution."

UPDATE: And now we have FBI agents contacting jurors in the Wecht case, just nicely asking why they didn't convict, in advance of a potential second trial, where jurors in that one would surely get the message that if they vote the wrong way FBI agents will be dispatched to their house. Classy. Wait, did I say classy, I meant STASI.

The Horror

We all knew this, but the level of specificity is striking.

In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

The so-called Principals who participated in the meetings also approved the use of "combined" interrogation techniques -- using different techniques during interrogations, instead of using one method at a time -- on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects -- whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed -- down to the number of times CIA agents could use a specific tactic.

Having finally seen The Road To Guantanamo the other night, about three British nationals of Pakistani origin who were picked up in Afghanistan and sent to Gitmo for years despite being innocent of any crimes, this is particularly acute. The idea that these monsters were up in the White House decided how many times a CIA agent could slap somebody is grotesque. These men and women - Cheney, Rumsfeld, Tenet, Ashcroft, Rice, and yes even that nice Mr. Colin Powell - should never be able to leave the United States again without the threat of indictment. And by the way, that whole Rice for VP clamor?

As the national security adviser, Rice chaired the meetings, which took place in the White House Situation Room and were typically attended by most of the principals or their deputies.

Yes, please Mr. McCain, make Condi your running mate so I can follow her around in an orange jumpsuit on the campaign trail.

These people are scum and their willing subordinates Jay Bybee and John Yoo simply fed them what they needed to have retroactively - justification for their crimes, a "Golden Shield," as they called it. That doesn't make Bybee or Yoo blameless, but it puts it into perspective. The lot of them should be up at Nuremberg standing for their lawbreaking. And guess what, they knew it.

Then-Attorney General Ashcroft was troubled by the discussions. He agreed with the general policy decision to allow aggressive tactics and had repeatedly advised that they were legal. But he argued that senior White House advisers should not be involved in the grim details of interrogations, sources said.

According to a top official, Ashcroft asked aloud after one meeting: "Why are we talking about this in the White House? History will not judge this kindly."

The present isn't judging you kindly. Historians are already calling this President the worst ever. But it's really worse than that. This is a high-level crime syndicate being run out of 1600 Pennsylvania Avenue. History won't just not judge this kindly. History will weep, and scream, and recoil.

Those of us who don't call for immediate indictments, not impeachment but something that ends in jail time, fail to live up to their duties as citizens.

Murmurs of a Cave on FISA

I was just about to write a post about how the Democrats were getting some backbone. This week we've had Nancy Pelosi pursuing contempt of Congress citations for Josh Bolten and Harriet Miers strenuously, Democrats in the Senate holding firm on a proposal to reverse bankruptcy laws to protect homeowners subject to foreclosure, and House oversight investigators even forcing John Ashcroft to testify over no-bid contracts awarded to the US Attorney for New Jersey Chris Christie. And in the face of a ridiculous series of attacks by the White House and right-wing groups over FISA, the Democrats appeared to be unafraid.

Except:

To break an impasse over legislation overhauling the Foreign Intelligence Surveillance Act, House Democratic leaders are considering the option of taking up a Senate-passed FISA bill in stages, congressional sources said today. Under the plan, the House would vote separately on the first title of the bill, which authorizes surveillance activities, and then on the bill's second title, which grants retroactive legal immunity to telecommunications companies that aided the Bush administration's warrantless electronic surveillance activities. The two would be recombined, assuming passage of both titles. In this way, Democratic leaders believe they can give an out to lawmakers opposed to the retroactive immunity provision. Republican leadership sources said their caucus would back such a plan because not only would it give Democratic leaders the out they need, it would provide a political win for the GOP. It remains to be seen if such a move will placate liberal Democrats who adamantly oppose giving in to the Bush administration on the immunity issue.

House Speaker Pelosi said that Democrats hope to have a solution worked out by March 8. But she also indicated that Democrats want language included in the bill that would clarify that FISA is the exclusive means under which the government can conduct electronic surveillance. The White House and some congressional Republicans have argued that the 2001 authorization of military force to launch the war on terrorism gave Bush the authority to conduct warrantless electronic surveillance. They also say the president has inherent constitutional authority to do what is necessary to protect the country. Senators have battled over whether to include so-called exclusivity language in their FISA bill. In the end, an amendment from Sen. Dianne Feinstein, D-Calif., that states FISA is the exclusive means for conducting electronic surveillance failed to win a needed 60 votes in a roll call that split mainly along party lines.

This has all the makings of a trial balloon, being floated to see what the membership and the outside issue groups think. The ACLU is, um, not pleased.

We vehemently oppose the Senate’s Title 1 that allows mass, untargeted surveillance of every communication coming into and going out of the United States . If the House is to take up the measure, we greatly hope that important safeguards are built back in far above and beyond “exclusivity.” There really is no benefit to declaring FISA the exclusive foreign intelligence surveillance law if it allows the AG and DNI to singlehandedly decide when tap innocent Americans on American soil.

This should be really simple. The telecoms knowingly broke the law. They shouldn't be taken off the hook for doing so. And FISA is perfectly fine to protect the country from terrorists while respecting civil liberties. The President is a reviled figure and his bleatings have produced little or no momentum in the public. There's simply no reason to do this.

Peter Sussman, a plaintiff in two of the lawsuits against phone companies, writes in the Sacramento Bee about how this deal would be un-American.

After Saddam Hussein was executed, President Bush reassured the world that the Iraqi dictator received "a fair trial – the kind of justice he denied victims of his brutal regime."

The Bush administration has similarly promoted "the rule of law" and "an independent judiciary" for countries such as Cuba, Burma and Iran.

Yet that same president is pressuring Congress to deny Americans our day in court before an independent judiciary by repealing the rules of law that guarantee the right to sue a private company for illegal infringements on our privacy rights.

Before Congress is sucked into this rhetorical swamp, consider that AT&T and other phone companies that buckled to secret administration demands for our records had a legal alternative: They could have insisted that the administration first obtain the court order that they – or their corporate attorneys – knew was necessary. That's what another large phone company apparently did, demonstrating more respect for the rule of law than AT&T apparently has. AT&T would have been legally obligated to respond to a valid warrant, saving "millions of lives" at that "very moment."

Instead, AT&T chose to violate federal and state law.

I and my fellow plaintiffs don't stand to win any money through our lawsuit, much less billions of dollars, but we do hope to assure governmental accountability, to open to public scrutiny the actions of corporations and government that have teamed up to deny citizens the rights guaranteed by law.

Your House member needs a phone call. There is no public constituency demanding that the phone companies get amnesty. The "rule of law," pro-Constitution constituency must rule the day.

Nonpartisan Advice

Former Attorney General John Ashcroft has written to Senate Judiciary Committee chairman Patrick Leahy asking him to grant retroactive immunity to the telecom industry. He works for the telecom industry.

Two former Attorneys General and a former FBI director wrote in the Wall Street Journal urging retroactive immunity for the telecom industry. They are all telecom lawyers.

I would like to know what people who AREN'T being paid by the telecom industry think.

Perjurer General Misremembers Again

So FBI Director Robert Mueller gave up his notes about the "Enzo the Baker" meeting between Alberto Gonzales and Andy Card and a drugged-up John Ashcroft, and guess what they reveal?

WASHINGTON, Aug. 16 — John Ashcroft was “barely articulate,” “feeble” and “clearly stressed” as he sat in a hospital room chair in March 2004 when top White House aides unsuccessfully tried to persuade him, as the Attorney General, to sign an extension for warrantless domestic eavesdropping on Americans, according to notes made by Robert S. Mueller III, the director of the F.B.I.

Mr. Mueller’s notes of his visit to Mr. Ashcroft’s hospital room provide another eyewitness account of the dramatic confrontation over the secret surveillance program. They confirm an account of the encounter given by James B. Comey, the former deputy attorney general, who testified before the Senate Judiciary Committee about it in May.

Mr. Mueller’s typed notes, which are undated, also reveal a series of meetings earlier and later that month between the F.B.I. director and other administration officials, including Mr. Comey, Alberto R. Gonzales, then White House Counsel and General Michael V. Hayden, then the director of the National Security Agency, which conducted the electronic monitoring program.

This completely contradicts Gonzales' account to the Senate Judiciary Committee, where he claimed that Ashcroft was "lucid" and did "most of the talking" in the midnight meeting. This is yet another lie for Abu G, yet somehow he's still the nation's highest-ranking law enforcement official, because Democrats refuse to go to the mat to get him removed.

So what does Judiciary Committee chair Senator Leahy plan to do about it? Hold more hearings? Ooh, scary. We have a criminal as the top law enforcement officer in the land and you people do nothing about it except hold hearings and issue press releases. He has lied to you. He has even lied to you when you asked him about his previous lies. Yet you do nothing. We have a word for people like you. It's "chump." You have the power of the purse. You have the power to defund Gonzales 100% if he doesn't step down. You have the power to defund the US attorney for DC if he won't file charges. You have the power to impeach Gonzles. But instead you hold hearings. When I worked for Ted Stevens, in the minority in the early 90s, with Clinton as president, we simply moved ahead with plans to cut the budget of a senior agency official who crossed our path. It worked wonders.

Aravosis makes the salient point that voters perceive Democrats by their ACTIONS rather than what they say. If they continue to not hold the Bush Administration accountable, they will be perceived as weak. They can hold as many hearings and write as many angry letters as they want. It's about action, not talk.

I mean, we still don't even know how many US Attorneys were targeted for dismissal. How can the Justice Department still be funded without knowing that answer? The same for the Vice President's office, which to the credit of Democrats they did try to defund once before:

Thanks to superfluous information provided by Robert Mueller, we now have a good indication of who was behind the initiation and execution of the NSA-driven Warrantless Wiretapping Program:

The Grand Wizard of Darkness: Dick Cheney [...]

It is clear from the Mueller notes that the final word on the Warrantless Surveillance Program and the Hospital Visit was Vice President Cheney's. The Buck Stopped There.

This is gathered through the record logs of the various meetings between Mueller and Administration officials, including the Vice President. Go read, drational makes a compelling case.

Fourthbranch: "I Don't Recall"

This is very interesting. Cheney has no problem lying on the teevee about anything. He's the guy who claimed on CNBC that he never said it was "pretty well confirmed" that Mohammed Atta met with an Iraqi agent in Prague before 9/11, when he said exactly that on Meet the Press.

So when he goes on Larry King and refuses to answer whether or not he sent Abu Gonzales and Andy Card to John Ashcroft's hospital bed to extract a sign-off on the warrantless wiretapping program from him while he was under sedation. Cheney said "I have no recollection of that."

Yesterday, a NYT editorial said this outright:

Unwilling to accept [DOJ's refusal to reauthorize the program], Vice President Dick Cheney sent Mr. Gonzales and another official to Mr. Ashcroft’s hospital room to get him to approve the wiretapping.

So there seems to be some information here that's public knowledge among the journalist class, but not the public.

It also appears that Arlen Specter received the letter he wanted. CNN is reporting a letter that NSA head Michael McConnell sent to Specter defending Abu G's contention that he didn't perjure himself when saying that there was no disagreement within the Justice Department on the program. The key judgments:

A number of these intelligence activities were authorized in one order;
One particular aspect of these activities and nothing more was acknowledged;
This is the only aspect that can be discussed publicly.

In other words, shut up. Is this the first time the White House has acknowledged that there are secret, ONGOING eavesdropping and intelligence programs that Americans don't know about? And they're also claiming that it was approved by the Congress. Could that mean Jane Harman, as emptywheel speculated?

Gonzales is making a technical argument and the White House is backing him up. Meanwhile, Fourthbranch is shutting his yap. There's a lot going on here and it's very fluid.

UPDATE: The House Judiciary Committee does the right thing, demands details of these separate, unacknowledged programs, as it is the right of the Congress to know (particularly the Intelligence Committee, designed to give oversight to intelligence activities of this government).

UPDATE II: Wow. Data-mining that may be included in this "unacknowledged intelligence activity" was specifically defunded by the Congress:

Sec. 8131.

[snip]

(b) None of the funds provided for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence shall be available for deployment or implementation except for:

(1) lawful military operations of the United States conducted outside the United States; or

(2) lawful foreign intelligence activities conducted wholly overseas, or wholly against non-United States citizens.

'Course, the President wrote a signing statement essentially nullifying this law, which is an appropriation, so it's completely illegal for them to do so (no different than Iran-Contra). Here's emptywheel:

Since that time, of course, we’ve learned that the Bush Administration has been using data-mining. It has been using data-mining to analyze data collected in the United States to identify targets for wiretaps, one party to which could be in the United States. And in fact, NSA didn’t have the technical ability to ensure that it wasn’t tapping communications between two targets, both of whom were in the United States. The Bush Administration was violating the clear intent of the law passed in 2003 to forbid data-mining in the United States.

When Bush confirmed the domestic wiretap program, he described it in terms that would mostly kind of comply with Congress’ intent when it explicitly forbade such activities. But he never denied that the activities associated with the program prior to March 2004 clearly violated Congress’ intent when it passed the Appropriations Act in 2003.

The Congress needs to keep pushing. What we don't know is going to be shocking.

UPDATE III: I should have mentioned that Fourthbranch still thinks he's a fourth branch, calling the office "unique" in an interview with CBS News. Which begs the question, why is this guy giving so many interviews all of a sudden? Is he trying to whip up support for Stephen Hayes' book on him? Is this his 2008 campaign rollout? Wait, I just threw up a little in my mouth...

Impeach Al Gonzales

On the eve of a no-confidence vote, there's a new site calling for Abu G's impeachment.



There's also news that Democrats will seek legal action for Gonzales' "Midnight Ride" to John Ashcroft's hospital bed to get him to sign off on the illegal wiretapping.

Indeed, congressional sources tell U.S. News that Democrats will ask the Texas Bar Association to determine whether Gonzales violated his code of professional responsibility or broke laws by bringing up the NSA program in the hospital in front of Ashcroft's wife, who lacks security clearances. "I am not going to speculate on discussions that may or may not have taken place," Justice Department spokesman Dean Boyd responded, "much less attempt to render a legal judgment on any such discussions."

Last Friday Douglas Kmiec, the chief spinner on legal issues for the White House, printed a completely dishonest editorial that tried to absolve Gonzales in the "Midnight Ride" fiasco, and Marty Lederman takes him apart. A portion:

Kmiec then attacks Senator Specter for suggesting that the hospital incident has an air of the Saturday Night Massacre about it -- "the comparison to Watergate is wholly inapt," writes Kmiec, because "Watergate involved a real crime."

Well, this case involves a "real crime," too -- systematic violations of a very important federal statute designed to protect Americans from wiretapping by their government, 18 U.S.C. 1809. But that's not really the central point for these purposes, because Specter's obvious reference was simply to the remarkable parallel in that the President and his closest aides had so egregiously departed from institutional legal norms that the entire top echelon of the Justice Department was prepared to resign in a manner that would signal to the public that something was greviously awry within the Administration. Attorney General Richardson and DAG Ruckelshaus did not resign in October 1973 because they concluded there had been a "burglary for purposes of political dirty tricks," in Kmiec's words. The burglary was an old story. They resigned because the President insisted that they fire prosecutor Archibald Cox when Cox subpoened Nixon's tapes. In other words, Nixon was trying to subvert the established procedures of the Justice Department. As were Bush and Gonzales.

That said, it's somewhat easy to see why the President won't fire Gonzales. First of all, he doesn't like being told what to do. Second, losing Gonzales would mean a replacement and a confirmation battle, and like I said, he doesn't like being told what to do. Third, who the hell would want to be this President's Attorney General after what we know? Nobody even wants to be the deputy!

Few in Washington have envied Paul McNulty over the past three months. But with the deputy attorney general’s resignation last week amid the scandal over the firings of at least eight U.S. attorneys, there’s one person whose position might be even less desirable: McNulty’s yet-to-be-named successor.

“I’d rather trade places with Jose Padilla,” jokes Viet Dinh, a former senior Justice official under then-Attorney General John Ashcroft.

So, given that Bush is extremely unlikely to fire Gonzales or even let him resign, I think the Congress has to do the heavy lifting here. Gonzales has committed multiple impeachable offenses. I think it's warranted for the good of the country. And at least we wouldn't have to hear "but then Cheney will become Attorney General!" from the more "sensible" elements of the Democratic Party.

UPDATE: See, Bush ain't cuttin' bait. He actually thinks it makes him look strong to be defiant. Even when it's being defiant of reality.

Lawless Authoritarian Thugs

I guess I didn't take much notice of James Comey's amazing story about his mad dash to John Ashcroft's hospital to head off Abu G and Andy Card from getting a bedridden Ashcroft to sign off on the warrantless spying program. That's because it was already known to me for at least a year. But it is significant that Comey testified to it in open testimony, because it forced the traditional media to take notice:

JAMES B. COMEY, the straight-as-an-arrow former No. 2 official at the Justice Department, yesterday offered the Senate Judiciary Committee an account of Bush administration lawlessness so shocking it would have been unbelievable coming from a less reputable source. The episode involved a 2004 nighttime visit to the hospital room of then-Attorney General John D. Ashcroft by Alberto Gonzales, then the White House counsel, and Andrew H. Card Jr., then the White House chief of staff. Only the broadest outlines of this visit were previously known: that Mr. Comey, who was acting as attorney general during Mr. Ashcroft's illness, had refused to recertify the legality of the administration's warrantless wiretapping program; that Mr. Gonzales and Mr. Card had tried to do an end-run around Mr. Comey; that Mr. Ashcroft had rebuffed them.

Mr. Comey's vivid depiction, worthy of a Hollywood script, showed the lengths to which the administration and the man who is now attorney general were willing to go to pursue the surveillance program. First, they tried to coerce a man in intensive care -- a man so sick he had transferred the reins of power to Mr. Comey -- to grant them legal approval. Having failed, they were willing to defy the conclusions of the nation's chief law enforcement officer and pursue the surveillance without Justice's authorization. Only in the face of the prospect of mass resignations -- Mr. Comey, FBI Director Robert S. Mueller III and most likely Mr. Ashcroft himself -- did the president back down.

The real revelation in the testimony is that, when Comey asked what Gonzales and Card were doing at the hospital and if they were going behind his back, they replied that "they were just making a social call." That's well-written black comedy right there.

And apparently the President himself was involved in this:

COMEY: Mrs. Ashcroft reported that a call had come through, and that as a result of that call Mr. Card and Mr. Gonzales were on their way to the hospital to see Mr. Ashcroft.

SCHUMER: Do you have any idea who that call was from?

COMEY: I have some recollection that the call was from the president himself.

So the President himself was instructing his personal Rosencrantz and Guildensterns to get the near-unconscious Attorney General to sign a piece of paper essentially allowing illegal spying to continue for another 45 days. And there's another disturbing side to this testimony.

In a 2006 hearing, when Sen. Chuck Schumer asked him about Comey’s objections to the NSA wiretapping program, Gonzales denied there was any “serious disagreement about the program“:

GONZALES: Senator, here is a response that I feel that I can give with respect to recent speculation or stories about disagreements. There has not been any serious disagreement, including — and I think this is accurate — there has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations, which I cannot get into. I will also say –

SCHUMER: But there was some — I am sorry to cut you off, but there was some dissent within the administration, and Jim Comey did express at some point — that is all I asked you — some reservations.

GONZALES: The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we are talking about today.

Gonzales’ answer suggests two possibilities.

1) Comey’s objections apply to the NSA warrantless wiretapping program that Gonzales was discussing. If so, then Gonzales quite likely made serious mis-statements under oath. And Gonzales was deeply and personally involved in the meeting at Ashcroft’s hospital bed, so he won’t be able to claim “I forgot.”

2) Perhaps Comey’s objections applied to a different domestic spying program. That has a big advantage for Gonzales — he wasn’t lying under oath. But then we would have senior Justice officials confirming that other “programs” exist for domestic spying, something the Administration has never previously stated.

Gonzales often used weasel phrases like that when talking about the spying program, confining his remarks to "the program we are talking about today." It was often suspected that there are other, more wide-ranging programs that have yet to be determined. So I opt for #2.

Glenn Greenwald, who rose to prominence over the warrantless wiretapping story, writes a tour de force post about this new development today, focusing not on the high drama of the Ashcroft visit, but what else Comey's long-sought testimony revealed. He makes clear that Ashcroft and Comey both believed that the NSA program was illegal, and that the President sought to continue the program anyway without authorization from the Justice Department (This was back when the Justice Department wasn't headquartered under the RNC). So lawbreaking wasn't really a problem to this White House.

The overarching point here, as always, is that it is simply crystal clear that the President consciously and deliberately violated the law and committed multiple felonies by eavesdropping on Americans in violation of the law.

Recall that the only federal court to rule on this matter has concluded that the NSA program violated both federal law and the U.S. Constitution, and although that decision is being appealed by the Bush administration, they are relying largely on technical arguments to have it reversed (i.e., standing and "state secrets" arguments) and -- as has been true for the entire case -- are devoting very little efforts to arguing that the program was actually legal or constitutional [...]

But the more important issue here, by far, is that we should not have to speculate in this way about how the illegal eavesdropping powers were used. We enacted a law 30 years ago making it a felony for the government to eavesdrop on us without warrants, precisely because that power had been so severely and continuously abused. The President deliberately violated that law by eavesdropping in secret. Why don't we know -- a-year-a-half after this lawbreaking was revealed -- whether these eavesdropping powers were abused for improper purposes? Is anyone in Congress investigating that question? Why don't we know the answers to that? [...]

How is this not a major scandal on the level of the greatest presidential corruption and lawbreaking scandals in our country's history? Why is this only a one-day story that will focus on the hospital drama but not on what it reveals about the bulging and unparalleled corruption of this administration and the complete erosion of the rule of law in our country? And, as I've asked many times before, if we passively allow the President to simply break the law with impunity in how the government spies on our conversations, what don't we allow?

If we had a functioning political press, these are the questions that would be dominating our political discourse and which would have been resolved long ago.

The Bush Administration simply feels that they have no checks on their power because the press, and to some extent the Democrats, and certainly the American people, don't bother to hold them accountable. This is the most lawless Administration in history, beyond even that of Ulysses S. Grant. They have nothing but contempt for the rule of law, and the lasting impact of that was on display at yesterday's "Three Cheers for Torture" Republican debate. This needs to be swiftly and directly rejected. I feel like we're on the precipice of an era not unlike the fall of Rome.

UPDATE: Chuck Hagel thinks Gonzales should resign now, and therefore gives me a sliver of hope that all is not lost in this country.

The Right Must Be Thrilled

Turns out that the British sailors detained by Iran were indeed tortured, just like the wingnuts wanted.

ABOUT CONDITIONS IN CAPTIVITY

“…On arrival at a small Iranian naval base we were blindfolded, stripped of all our kit and led to a room where I (Lieutenant Carman) declared myself as the officer in charge and was introduced to their local commander.

…Two hours later, we were moved to a second location and throughout the night were subjected to random interrogation.

…The questions were aggressive and the handling rough, but it was no worse than that.

…The following morning, we were flown to Tehran and transported to a prison - where the atmosphere changed completely.

…We were blindfolded, our hands were bound, we were forced up against the wall. Throughout our ordeal we faced constant psychological pressure.

…Later, we were stripped and dressed in pyjamas. The next few nights were spent in stone cells approximately 8ft by 6ft, sleeping on piles of blankets.”

The shame of this, outside of idiot righty bloggers welcoming torture because the sailors didn't look like they were resisting enough (which would have gotten them killed), is that we literally have no moral standing to cry foul, giving the chronicles of Abu Ghraib and Guantanamo. This is a point made often by Democrats over the years, never so forcefully than by Joe Biden to John Ashcroft in 2004:

"There's a reason why we sign these treaties," Senator Joseph R. Biden, Democrat of Delaware, reminded Ashcroft at the hearing. "To protect my son in the military. That's why we have these treaties, so when Americans are captured, they are not tortured."

That extends to allies, who we've also put in greater danger. Hopefully, everyone on the right that pushed this is very pleased with themselves. Since it serves to affirm their own twisted notions about how they just knew that Muslims were torturers, I'm sure they are.

UPOATE: On the heels of this announcement, today's New York Times story is particularly revolting, practically accusing these soldiers of being collaborators when they were trying to stay alive.

UPDATE II: By the way, conditions at Guantanamo are worsening. Our moral standing is shot.