The Tanks Of Lackawanna

This is the second story in a week about how noble George W. Bush averted disaster. First he stuck to his principles about honesty and refused to pardon Scooter Libby (who he did already commute, incidentally, somehow that didn't make it into the paean of an article). Today we learn he was all that stood between us and tanks rolling down the streets:

Top Bush administration officials in 2002 debated testing the Constitution by sending American troops into the suburbs of Buffalo to arrest a group of men suspected of plotting with Al Qaeda, according to former administration officials.

Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.

Mr. Bush ultimately decided against the proposal to use military force.

A decision to dispatch troops into the streets to make arrests has few precedents in American history, as both the Constitution and subsequent laws restrict the military from being used to conduct domestic raids and seize property.

The Fourth Amendment bans “unreasonable” searches and seizures without probable cause. And the Posse Comitatus Act of 1878 generally prohibits the military from acting in a law enforcement capacity.

It's not that I disagree that this was brought up as an option, it's the positioning of Bush as the defender of the Constitution that kind of galls me. Cheney was the Constitution's chief beta-tester ("testing the Constitution" is quite a turn of phrase, no?), and considering the wealth of other illegal actions, all justified like this one by at-the-ready memos from John Yoo, I just doubt that Bush really made these decisions, even if he felt like he did.

Frankly, all this dumping on Dick seems like part of the Bush Legacy Project to me. While Fourthbranch has been ready for his closeup throughout the Obama Administration - right up until the moment that Eric Holder started talking seriously about prosecutions that didn't involve him, that is, then he slithered back into the undisclosed location - Bush has kept a low profile in Dallas, gave a couple speeches, told stories about walking his dog and being jus' folks, and one by one all of these articles showing how he wasn't SO bad - he didn't want to use the military in American cities, after all! - keep popping up, using anonymous sources. It's a nice kickoff for the library.

Meanwhile, there is an important component to all of this, namely, the stated reason why the authority to use military force was sought:

Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna. Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody.

Earlier that summer, the administration designated Jose Padilla an enemy combatant and sent him to a military brig in South Carolina. Mr. Padilla was arrested by civilian agencies on suspicion of plotting an attack using a radioactive bomb.

(This shows once again how the construction of Bush as a savior of the Constitution is false - he USED the powers granted by Yoo to designate Padilla an enemy combatant.)

So because of concerns that the evidence was weak, Cheney wanted to use "a lower threshold of evidence," and denote the Lackawanna Six enemy combatants to keep them outside the criminal justice system. We've gotten rid of the enemy combatants term, but not really the thinking of getting around the standards of evidence when dealing with terrorism suspects. While the report on detention policy and Guantanamo Bay has been delayed a number of months, in the preliminary report, we see the seeds of a three-tiered system of justice based on the amount of evidence gathered, altering the due process granted to ensure that the government can continue to confine anyone it captured relating to the so-called war on terror. As Glenn Greenwald writes today, in reaction to the NYT article:

All of this underscores why it is so important to vigorously oppose the efforts of the Obama administration (a) to continue many of the radical Bush/Cheney Terrorism programs and even to implement new ones (preventive detention, military commissions, extreme secrecy policies, warrantless surveillance, denial of habeas corpus) and (b) to endorse the core Orwellian premise that enables all of that (i.e., the "battlefield" is anywhere and everywhere; the battle against Terrorism is a "War" like the Civil War or World War II and justifies the same powers). By itself, the extreme injustice imposed by our Government on the individuals subjected to such tyrannical powers (i.e., those held in cages for years without charges or any prospect for release) should be sufficient to compel firm opposition. But the importance of these issues goes far beyond that. Even if the original intention is to use these powers in very limited circumstances and even for allegedly noble purposes ("only" for Guantanamo detainees who were tortured, "only" for people shipped to Bagram, "only" for the Most Dangerous Terrorists), it's extremely dangerous to implement systems and vest the President with powers that depart from, and violently betray, our core precepts of justice [...]

Those are the stakes when it comes to debates over Obama's detention, surveillance and secrecy policies. To endorse the idea that Terrorism justifies extreme presidential powers in these areas is to ensure that we permanently embrace a radical departure from our core principles of justice. It should come as no surprise that once John Yoo did what he was meant to do -- give his legal approval to a truly limitless presidency, one literally unconstrained even by the Bill of Rights, even as applied to American citizens on U.S. soil -- then Dick Cheney and David Addington sought to use those powers (in the Buffalo case) and Bush did use them (in the case of Jose Padilla). That's how extreme powers work: once implemented, they will be used, and used far beyond their original intent -- whether by the well-intentioned implementing President or a subsequent one with less benign motives. That's why it's so vital that such policies be opposed before they take root.

Those Presidents who fail to show respect and deference for the system of justice that has held over two centuries and more, even if they do not use the powers granted to them, set in motion a process to devolve that system. The precedents set by the Bush Administration, and potentially the Obama Administration, will have a lasting impact. So pardon me if I don't send a thank you note over to the 43rd President for not ordering an up-armored Humvee through a Buffalo suburb.

Balloons All Over

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

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

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

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

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

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

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

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

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

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

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

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

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

Slow Motion Avalanche

This jumped past me last week, but a federal judge ordered John Yoo to testify in a case filed by Jose Padilla, who was held in a Navy brig for years and slowly driven insane under the enemy combatant policies of the last regime. Ady Barkan thinks this could actually provide some accountability.

In 2002, Justice Department lawyer John Yoo wrote a memo recommending that Jose Padilla, arrested in Chicago in the wake of 9/11 and held on suspicion of plotting a dirty-bomb attack, be classified as an enemy combatant. Yoo also wrote memos arguing that American law does not prevent the president from ordering such enemy combatants tortured. This January, after enduring years of abuse in prison, Padilla sued Yoo for violating his constitutional rights.

And a week ago, Judge Jeffrey White ruled that Padilla's allegations were plausible enough to justify denying Yoo's motion to dismiss the lawsuit. White was appointed by George W. Bush the year Yoo was writing his memos.

White's decision is the first of its kind: Until now, although other lawsuits have been brought, no government official has faced personal liability for his role in the torture or deaths of detainees. But it probably won't be the last. These cases are just beginning to address the fraught questions of justice that have emerged in the aftermath of the Bush era—what atrocities were committed in the name of national security, who bears responsibility, and how should they be punished? Although neither the Obama administration nor most members of Congress want to deal with these questions directly, they're even more opposed to letting judges (and juries) take a crack at them. Padilla v. Yoo is an example of a surprising development: a conservative judge putting pressure on the Democrats in Washington to create some system of accountability for the Bush administration. It could help spawn more such rulings.

The Obama Administration actually defended Yoo's plea to skirt testifying in this case, clearly to just close down this issue in the name of moving forwards and not backwards. But White really boxed in the White House now, and every option available to them plausibly leads to more disclosure and more court rulings that would force some measure of accountability. Barkan considers this ruling crucially important, and maybe it is. Remember that Bush lost case after case invalidating his national security procedures, and now Obama has mirrored his predecessor on many of those fronts. Taking the hard line on official secrecy and executive privilege has the benefit of delaying accountability, but as long as there are lawyers willing to seek justice - and there are - they will pursue the avenues made available by favorable rulings. This avalanche may be happening in slow motion, but it's rolling downhill, and even a crafty efforts from the elites to shield themselves from a reckoning may not be enough to stop it.

Who's Talking About Excellence?

John Yoo, a guy who said that the President has the right to crush the testicles of a child under the Constitution, dares to criticize Sonia Sotomayor for not being "excellent". Hilariously, he claims that Diane Wood or Elena Kagan would have been fine choices, when in the event of their choice, he would have simply substituted their names for Sotomayor's and put out this template of an op-ed. And Yoo saying that anyone lacks intellectual "firepower" just stretches credulity to the limit.

Predictably, the only case that Sotomayor ever ruled upon, according to the wingnuts, is the Ricci case, which Doug Kendall and Dahlia Lithwick debunk.

Pity poor Frank Ricci. You probably already do. Ricci is a white firefighter from New Haven, Conn., who is the plaintiff in an important civil rights case before the Supreme Court this term. Ricci suffers from dyslexia, which made passing a written exam established by New Haven for promotion to lieutenant especially challenging for him. He studied hard and got the sixth-highest score on the exam—qualifying him for one of the eight open spots. But despite all that, Ricci still hasn't received his promotion, which is the basis of his lawsuit.

What does Ricci's dyslexia have to do with the law? Very little, actually. The city of New Haven threw out the results of the test he took because it feared that the examination was discriminatory. That's because none of the African-American candidates, and only two of the 50 minority candidates, who took the test would have been eligible for promotion based on the results. Regardless of how you and I may feel about Frank Ricci or how much he deserved to be promoted, discriminatory results like that can run afoul of Title VII of the Civil Rights Act of 1964. And in this case the results of the test far exceeded the statistical cutoff that suggests a constitutional violation has occurred.

When the case was argued before the Supreme Court last month, all of the justices seemed to agree that New Haven had to comply with valid federal statutes. Mr. Ricci did not challenge the constitutionality of Title VII. So the only real question before the court was whether New Haven had reason to believe that if the city used the test results it would be sued under Title VII. Mr. Ricci's specific circumstances—his race, his dyslexia, and his professional aggravation—have no bearing on that legal question at all.

So why did every report on the case begin and end with Ricci's compelling employment story? Might it have something to do with the fact that the conservative organizations supporting Ricci used his sympathetic tale as the centerpiece of a successful media blitz leading up to oral argument before the court? Could it be that they wanted to make sure the justices understood just how Title VII could impact the lives of ordinary Americans like Frank Ricci? Could they—oh the horror!—have wanted the justices to empathize with Ricci's plight?

Now who's being empathetic?

...Media Matters nails John Yoo. This is from Yoo's review of Clarence Thomas' book:

As his memoir shows, Justice Thomas's views were forged in the crucible of a truly authentic American story. This is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him. A man like this on the Court is the very definition of the healthy diversity his detractors pretend to support.

Plenty more at the link.

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.

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.

Republicans Engage In Another Stick-Up?

Yesterday I wrote about John Brennan's efforts to conceal additional classified memos from the Bush Administration from the Office of Legal Counsel, offering their authorization and direction of specific techniques of brutal treatment and torture. Today Scott Horton claims that the issue is more one of blackmail:

Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward [...]

The release of the memos that the Senate Republicans want to suppress was cleared by Attorney General Eric Holder and White House counsel Greg Craig, and then was stopped when “all hell broke loose” inside the Obama administration, according to an article by Newsweek reporter Michael Isikoff. Newsweek attributes internal opposition to disclosure of the Bush-era torture memos to White House counterterrorism adviser and former CIA official John O. Brennan, who has raised arguments that exposure of the memoranda would run afoul of policies protecting the secrecy of agency techniques and has also argued that the memos would embarrass nations like Morocco, Jordan, Pakistan, Tunisia and Egypt, which have cooperated closely with the CIA in its extraordinary renditions program. Few informed independent observers, however, find much to credit in the Brennan objections because the techniques are now well-known, as is the role of the cooperating foreign intelligence services—any references to which would in any event likely be redacted before the memoranda are released. Moreover, the argument that the confidence of those engaged in torture—serious criminal conduct under international and domestic law—should be kept because they would be “embarrassed” if it were to come out borders on comic.

The Justice Department source confirms to me that Brennan has consistently opposed making public the torture memos—and any other details about the operations of the extraordinary renditions program—but this source suggests that concern about the G.O.P.’s roadblock in the confirmation process is the principle reason that the memos were not released. Republican senators have expressed strong reservations about their promised exposure, expressing alarm that a critique of the memos by Justice’s ethics office (Office of Professional Responsibility) will also be released. “There was no ‘direct’ threat,” said the source, “but the message was communicated clearly—if the OLC and OPR memoranda are released to the public, there will be war.” This is understood as a threat to filibuster the nominations of Johnsen and Koh. Not only are they among the most prominent academic critics of the torture memoranda, but are also viewed as the strongest advocates for release of the torture memos on Obama’s legal policy team.

This is really an appalling situation, showing you just how far Republicans will go to protect their own criminal activities. Harold Koh and Dawn Johnsen are respected legal scholars - Koh even garnered the support of Bush's solicitor general Ted Olson. Conditioning their entry into the Administration on official secrecy makes a mockery of the whole concept of advise and consent.

First, the President has traditionally been given deference in the choice of his advisors. If some President wants to have someone in his cabinet, the presumption is that he ought to be able to do so, absent illegality or some sort of manifest incompetence. For the Republican Senators to hold these appointees up not for those reasons, but because they disagree with their policies, is just wrong; if this happened every time a new administration came into office, the opposition party would filibuster half the nominations and no one would never govern at all.

Second, what the Republicans are trying to do is to dictate to the President a matter that is purely his prerogative: deciding whether or not to unclassify documents. This is insane: it's as though Obama threatened to withhold funding for the Senate unless Mitch McConnell fired some staffer he didn't like.

And the combination -- holding appointments hostage while trashing people's reputations in order to keep Obama from making a decision he plainly has the right to make -- is unconscionable.

I am not, in general, a big fan of saying: Republicans: you lost. Get over it. But in this case, I'm going to make an exception. The Republicans do not seem to be willing to allow the President to do things that are plainly his prerogative: appointing the reasonable, qualified, law-abiding people of his choice, deciding which documents should be declassified, and so forth. Any moment now they'll threaten not to pass the budget unless he sets his air conditioner at their preferred temperature.

Glenn Greenwald doesn't seem to buy the claim of Republican blackmail, but agrees that there is no possible excuse for concealing these memos. These memos comprise secret laws agreed to by our government, under cover of darkness, which had wide-ranging impacts on American policy. No vote was scheduled, no disclosure made to the people, indeed no accountability whatsoever came as a result of this law. And of course, it violated international law and treaties to which America is a signatory. There cannot be any reason to continue this practice beyond a cover-up.

I would hope that, before believing this excuse for non-disclosure, everyone would first demand proof that this claim of GOP threats is true -- namely, I'd like to see evidence that the GOP Senate caucus is really prepared to unify in a filibuster of Obama nominees in order to keep these torture memos concealed. But even if it is true, it's entirely irrelevant. Politically, that's a fight the Obama administration -- if it even remotely believes in all the things it has been saying about transparency -- should be prepared to wage. But beyond the political considerations, the government simply has no right to keep things secret in order to avoid political embarrassment or conflict, and Obama's top OLC officials themselves spent the last five years arguing exactly that.

The only conceivable reason for wanting to keep these memos secret is to avoid the deep and justifiable embarrassment the U.S. will feel upon placing before the world documents that explicitly authorized war crimes at the highest levels of our government, and thereby avoid what will inevitably be the increasing political pressure -- domestic and international -- to investigate and prosecute the war criminals. Those who authorized these tactics knew full well that what they were doing was wrong.

At this point, I would certainly like to hear from every Republican Senator, to get them on the record about this. Do they believe Johnsen and Koh should be filibustered? Do the "Gang of 14" who acted to save the filibuster for judicial nominations believe the same thing? Once we have a full whip count, we can properly judge the reasons why the Obama Administration has delayed disclosure of these crucial memos.

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

Just off the press from the New York Times:

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

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

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

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

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

The six officials in the inquiry are:

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

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

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

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

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

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

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

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

So do I.

DiFi Can't Handle The Truth

Yesterday the Senate Judiciary Committee held a hearing on Patrick Leahy's call for a truth commission to investigate the crimes of the Bush Administration. Obviously the events of the past couple days, with the release of OLC memos that really transformed the concept of democracy in the Bush era, is revitalizing this debate.

Justice Department officials said they might soon release additional opinions on those subjects. But the disclosure of the nine formerly secret documents fueled calls by lawmakers for an independent commission to investigate and make public what the Bush administration did in the global campaign against terrorism.

The chairman of the House Judiciary Committee, Representative John Conyers Jr., Democrat of Michigan, said the revelations, together with the release of new information about the Central Intelligence Agency’s destruction of 92 interrogation videotapes, had underscored the need for a commission that would have the power to subpoena documents and testimony.

The OLC memos are still extraordinary, so horrifying in the picture they paint of executive power that the head of the OLC, Steven Bradbury, felt the need to disavow them near the end of the Bush regime. It's likely that he did so to take the heat off of himself.

The increased calls for a greater public accounting come as the Justice Department’s internal ethics office is preparing to release a report that is expected to criticize sharply members of the Bush legal team who wrote memorandums purporting to provide legal justification for the use of harsh interrogation methods on detainees despite anti-torture laws and treaties, according to department and Congressional officials.

The Office of Professional Responsibility at the Justice Department is examining whether certain political appointees in the department knowingly signed off on an unreasonable interpretation of the law to provide legal cover for a program sought by Bush White House officials.

The report is expected to focus on three former officials of the Office of Legal Counsel: Mr. Yoo, a Berkeley law professor, now on leave at Chapman University, who was the principal author of opinions on national security matters from 2001 to 2003; Jay S. Bybee, who oversaw the counsel’s office during that period and is now a federal appeals court judge; and Steven G. Bradbury, who oversaw the counsel’s office in Mr. Bush’s second term.

Mr. Bradbury wrote two of the opinions released on Monday. Written last October and this January, they broadly repudiated the aggressive theory of virtually unlimited commander-in-chief power at the heart of Mr. Yoo’s memorandums.

But there ought to be no get-out-of-jail-free card for the actions taken as the result of these memos. Glenn Greenwald looks at one of the documents.

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments. It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens. And it wasn't only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls "domestic military operations" was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying -- in secret and with no oversight -- on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.

As Harper's Scott Horton says, "We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship."

John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the President as commander-in-chief. The rest of the Constitution was apparently printed in disappearing ink.

Yoo, who is hiding out in Orange County at Chapman University, admitted in an interview to the OC Register only that his memos "lacked a certain polish," in a profile more concerned with how he's enjoying the beaches and Vietnamese food of Southern California rather than the "hippies, protesters and left-wing activists" of Berkeley. Somehow, he's still teaching law. Jay Bybee, the other major player in the composition of these memos, is a 9th Circuit Appeals Judge in San Francisco. Bruce Ackerman recommends impeachment. More on the memos from Jack Balkin and Anonymous Liberal.

Despite the calls of apologists to the contrary, we have to have a reckoning on this. The previous President, aided by his allies, asserted broad executive powers far outside Constitutional strictures, and the results were illegal wiretapping, torture, extraordinary rendition, indefinite detention, and a series of other crimes against the state and violations practically every amendment in the Bill of Rights as well as international law. There is a school of thought that immunity is needed to uncover the truth, much of which we still do not know, but Sheldon Whitehouse disagrees.

WHITEHOUSE: I think the Speaker is absolutely right. The question of when and whether to grant immunity is a very carefully drawn one. … If you’re giving blanket immunities and preventing prosecutions that could and would and should move forward, then you’ve made a mistake.

“[T]he Speaker is dead right that you don’t want blanket immunities that prevent prosecutions from going forward,” he emphasized, “not without a very thoughtful conversation with the prosecutors themselves.”

But one member of the Judiciary Committee wasn't at the truth commission hearing yesterday - Dianne Feinstein. Through a spokesman, she sidestepped whether or not she supports a commission, saying she “hasn’t seen a proposal." But she is instituting a competing investigation, from her perch at the Senate Intelligence Committee, that is bound to be a whitewash:

The inquiry is aimed at uncovering new information on the origins of the programs as well as scrutinizing how they were executed -- including the conditions at clandestine CIA prison sites and the interrogation regimens used to break Al Qaeda suspects, according to Senate aides familiar with the investigation plans.

Officials said the inquiry was not designed to determine whether CIA officials broke laws. "The purpose here is to do fact-finding in order to learn lessons from the programs and see if there are recommendations to be made for detention and interrogations in the future," said a senior Senate aide, who like others described the plan on condition of anonymity because it had not been made public [...]

The senior aide said that the committee had no short-term plans to hold public hearings, and that it was not clear whether the panel would release its final report to the public [...]

Senate aides declined to say whether the committee would seek new testimony from former CIA Director George J. Tenet or other former top officials who were involved in the creation and management of the programs.

The Senate investigation will examine whether the detention and interrogation operations were carried out in ways that were consistent with the authorities and instructions issued in the aftermath of the Sept. 11 attacks, officials said.

The panel will also look at whether lawmakers were kept fully informed. Sen. Dianne Feinstein (D-Calif.), the chairwoman of the committee, and others have said that the Bush administration improperly withheld information from Congress on the CIA's operations.

This is basically a turf war. Feinstein wants control of the investigation process in her committee, over Patrick Leahy. And she wants the hearings to be private as well as the final report. Emptywheel writes:

Pat Leahy will have an investigation regardless of what DiFi says--and he's going to start it now. So DiFi issues a vaguely formulated leak saying that she's going to cover the CIA's role in torture. And, voila! Now the CIA and DiFi can say try to circumscribe Leahy's investigation. And of course, by doing an investigation that starts with the premise that it is "not designed to determine whether CIA officials broke laws," even while admitting that CIA officers may have gone beyond the "instructions issued in the aftermath of the Sept. 11 attacks," it ensures no accountability even for those who went beyond Cheney's torture regime. And, finally, absolutely no current plans to make public the results, either through public hearings or by releaing a report.

Call DiFi at (202) 224-3841. Thank her for recognizing the importance of understanding the mistakes we made in the past. Remind her that even Pat Roberts' investigation into CIA Iraq intelligence was released publicly. Demand that she meet at least the level of transparency adopted by her Republican predecessors as SSCI Chair.

Agreed. This is too important for it to be done in the secret bowels of official Washington as a "fact-finding mission" yielding a white paper that will wind up collecting dust on a shelf. Feinstein is trying to let criminals off the hook, plain and simple. History tells us that the inevitable return of criminals like this will only be emboldened to go further as a result.

Putting The Shame In Our Faces

Despite, or in a weird way, because of the troubling return of unitary executive theory in Obama Administration filings in the Al Haramain case, the Justice Department is striving for transparency in releasing many secret OLC memos from the Bush era, as well as the information that the CIA destroyed 92 videotapes of interrogations of terror suspects.

The Justice Department released nine legal opinions showing that, following the Sept. 11, 2001, terrorist attacks, the Bush administration determined that certain constitutional rights would not apply during the coming fight. Within two weeks, government lawyers were already discussing ways to wiretap U.S. conversations without warrants.

The Bush administration eventually abandoned many of the legal conclusions, but the documents themselves had been closely held. By releasing them, President Barack Obama continued a house-cleaning of the previous administration's most contentious policies.

"Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties," Attorney General Eric Holder said in a speech a few hours before the documents were released. "Not only is that school of thought misguided, I fear that in actuality it does more harm than good."

The Obama administration also acknowledged in court documents Monday that the CIA destroyed 92 videos involving terror suspects, including interrogations — far more than had been known. Congressional Democrats and other critics have charged that some of the harsh interrogation techniques amounted to torture, a contention President George W. Bush and other Bush officials rejected.

The new administration pledged on Monday to begin turning over documents related to the videos to a federal judge and to make as much information public as possible.

The ACLU has the legal letter acknowledging the destruction of the CIA tapes, and the OLC memos are here. One of the more interesting memos, described by Christy Hardin Smith, is a recent one from October 2008 from the Bush Administration's head of the OLC:

Bradbury doesn't pull punches, either. In a document entitled "Memorandum for the Files re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities," Bradbury's first paragraph begins with an urge for all members of government to exercise substantial caution on relying on the above-reference memorandum, authored by Gonzales, Haynes, Yoo and Delahunty as precedent of the OLC, and that this "should not be treated as authoritative for any purpose."

Let me get this straight: we waited all the way to October 6, 2008 -- more than 7 years -- to issue such a memoranda governmentally regarding a fundamental question of posse comitatus? One that the OLC clearly got wrong?

And where is David Addington's name in all of this, since it's fairly well known at this point that he drafted a hefty helping of this dreck? Guess he can draft it but doesn't deign to be a signatory?

Bradbury goes on to issue a blanket statement that the OLC is not to be used for:

"...broad, hypothetical scenarios involving domestic military contingencies that senior policymakers feared might become a reality in the uncertain wake of the catastrophic attacks of 9/11..."

Which is understandable that there would be hasty errors given the circumstances but, again, why did it take more than 7 years to correct their misperceptions?

I have a theory. The Bush Administration knew these were extra-legal actions, and so to cover their behinds they had their OLC chief make them all inoperative just before they left. I don't think it necessarily would make it harder to prosecute, but considering that the incoming Administration wants to "look forward and not backward," it would certainly push them to conclude that the worst is behind us and at least these theories have been rejected.

Except they have not been rejected. In Al Haramain the Obama White House is still using them. Look at this John Yoo memo on FISA, where he claims that domestic searches and wiretaps would not violate the Fourth Amendment as long as the President is combating terrorism, or the one where Yoo argues that First Amendment speech and press rights may have to be suppressed to protect the nation, and ask yourself what Obama is hiding. Ask yourself why he's relying on similar theories of executive power to hide the truth.

This is why we need a Congress with the insistence to uphold their oversight functions and use the tendency for sunlight on the part of the Justice Department to deliver a full investigation into the crimes of the Bush era. I agree with Nancy Pelosi that prosecutions should result from any violations of federal statute found by those investigations. However, even a Truth Commission would be powerful and paradigm-shifting.

Spearheading Senate efforts to establish a torture commission is Rhode Island Democrat Sheldon Whitehouse. As a member of both the Judiciary Committee and the Intelligence Committee, Whitehouse is privy to information about interrogations he can't yet share. Still, regarding a potential torture commission, he told Salon, "I am convinced it is going to happen." In fact, his fervor on the issue was palpable. When asked if there is a lot the public still does not know about these issues during the Bush administration, his eyes grew large and he nodded slowly. "Stay on this," he said. "This is going to be big."

Here's Whitehouse and Patrick Leahy discussing their commission proposal on the Senate floor.



"We may be faced with the prospect of looking at horror in our own country's deeds." Let's hear about all of it. And let's let the current Administration know that we will not abide by the same horror from their conduct, no matter how noble the intention.

Legacy Of Ashes

The Bush Legacy Project is off to a rough start. Despite a fresh set of talking points and a round of gauzy interviews, the public doesn't want a damn thing to do with this guy anymore. What has been done cannot be undone.

While the public is giving Obama a nice honeymoon, it’s finalizing its divorce from President Bush. A whopping 79% in the poll say they’re not going to miss him when he leaves office. That’s compared with 55% who said the same of Clinton in December of 2000. Moreover, almost half (48%) think that Bush will go down as one of the worst presidents in our history. Just 18% said that of Clinton and only 6% said that of Bush 41. But Bush 43 isn’t the only Republican who has taken a hit in the new NBC/WSJ poll. Dick Cheney leaves office with sporting an all-time low in his personal rating. And the Republican Party’s fav/unfav is 27%-52%, which is its lowest rating ever in the poll (by comparison, the Democratic Party’s is nearly reversed, 49%-28%).

The hubris of these people, thinking they can throw around a bunch of shady facts and figures and bamboozle the public into loving George Bush again. That ship has sailed. People may not know every single outrageous assault on the dignity of this nation perpetrated over the past eight years, but they certainly have a sense of the broad strokes - the failed wars, the economic collapse, the destruction of at least one American city (and Detroit is on the brink). Not to mention that there's no contrition or even connection to current world events in these Bush "exit interviews." They are as devoid of humanity as they are of substance. Ezra Klein had a good piece on this in the LA Times.

Asked to reveal what would surprise us most about his presidency, Bush replied that "every day has been pretty joyous." That is indeed surprising. Asked if Barack Obama's victory wasn't a repudiation of Bush's presidency, Bush allowed that some people may have voted for Obama in reaction to his presidency, but overall, "most people voted for Barack Obama because they decided they wanted him to be in their living room for the next four years explaining policy."

The most galling answer, however, came when Gibson asked if Bush had any regrets. "The biggest regret of all the presidency has to have been the intelligence failure in Iraq," he said, entirely in the passive voice. "A lot of people put their reputations on the line and said the weapons of mass destruction is a reason to remove Saddam Hussein. It wasn't just people in my administration; a lot of members in Congress, prior to my arrival in Washington, D.C., during the debate on Iraq. ... I wish the intelligence had been different, I guess." In other words, Bush did not let the American people down. The intelligence community let Bush -- and, let's not forget, lots of others -- down.

Nixon decided to give the country closure. That meant sacrificing the comfort of hiding behind partisanship, and it meant admitting the failures of his presidency. To date, Bush shows no such inclination. And on this, he retains agency. Conflicting evaluations of his presidency will simply collide in the postmodern thunderdome of contemporary partisanship. "I don't spend a lot of time really worrying about short-term history," he said to Gibson. "I guess I don't worry about long-term history, either, since I'm not going to be around to read it." Then he laughed, even though it wasn't very funny.

See, Nixon, in his Shakesperian way, admitted his crimes. Bush gave a medal to Chuck Colson.

Actually, to me the Condi Rice interview on NPR was even more galling, considering that she had the nerve to offer a defense of the Administration on torture:

Q: And Guantanamo wasn’t sort of the only issue that tarnished the U.S. image. There is also the treatment of terror suspects, waterboarding, other methods of torture or –

RICE: Well, you know that I’m going to have to object, because the United States has always kept to its international obligations, which include international obligations on the Convention on Torture. The United States, the President, was determined after September 11th to do everything that was legal and within those obligations, international and domestic laws, to make sure that we prevented a follow-on attack.

They keep insisting that the ends justify the means, that the only focus in the minds of the top officials in the Administration was to "keep the country safe," and thus they had to commit the war crimes. At the same time, they try to pin the abuse on a "few bad apples," saying their actions are inconsistent with the comportment of the United States in meeting its international obligations.

The two statements are incompatible.

The physical and mental abuse of detainees in Iraq, Afghanistan and Guantanamo Bay, Cuba, was the direct result of Bush administration detention policies and should not be dismissed as the work of bad guards or interrogators, according to a bipartisan Senate report released Thursday.

The Senate Armed Services Committee report concludes that harsh interrogation techniques used by the CIA and the U.S. military were directly adapted from the training techniques used to prepare special forces personnel to resist interrogation by enemies that torture and abuse prisoners. The techniques included forced nudity, painful stress positions, sleep deprivation, and until 2003, waterboarding, a form of simulated drowning [...]

Administration officials publicly blamed the abuses on low-level soldiers-- the work ''of a few bad apples.'' Committee Chairman Sen. Carl Levin, D-Mich., called that ''both unconscionable and false.''

''The message from top officials was clear; it was acceptable to use degrading and abusive techniques against detainees,'' Levin said.

Arizona Republican and former prisoner of war Sen. John McCain, called the link between the survival training and U.S. interrogations of detainees inexcusable.

''These policies are wrong and must never be repeated,'' he said in a statement.

(That's right, man of honor and integrity John McCain popped up on this one. He has no right to say a word about it.)

And I should add, if the epitaph for the Bush Administration, so we are told, is "he kept us safe" (I guess every President has a 9-month mulligan on that), how can this be reconciled?

The military ignored steps before the invasion of Iraq that could have prevented the staggering number of casualties from roadside bombs, the Pentagon's acting inspector general charged Tuesday.

The IG's report says that the military knew years before the war that mines and homemade bombs, which the military calls "improvised explosive devices," would be a "threat . . . in low-intensity conflicts" and that "mine-resistant vehicles" were available.

"Yet the military did not develop requirements for, fund or acquire" safer vehicles, the report says. The military invaded Iraq in 2003 "without having taken available steps to acquire technology to mitigate the known mine and IED risk to soldiers and Marines."

Even after the war was under way, as the devices began taking a deadly toll and field commanders pressed for vehicles that were better protected from roadside bombs, the Pentagon was slow to act, the report says.

People may not know all the details, but they're very clear on their feelings. The Bush Legacy Project mirrors the Bush Presidency Project: a failure. That's not accountability, of course, and unless we start sending some people to jail these criminals will return like zombies to feast upon the body politic. The Bush reign isn't even over and some of his favorite Democrats are calling to retain all of his intelligence officials, which is disturbing beyond the point of reason.

I think we need our own "Legacy Project" to fill in the details and make sure this never happens again. The public is on our side and willing to listen.

Big Picture On Torture

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Now That's How You Get McCain

Wes Clark, against a clueless Mika Brzezenski who can't fathom that John McCain doesn't know what he talks about on national security.

He's changed his position on torture. At one point he said he was against it, now he's in favor of it. He's even come out against the Supreme Court decision that was yesterday on the prisoners at Guantanamo. So what does John McCain really believe, who is he? Is he the Straight Talk Express maverick that people thought he was in the late 90s, or is he just a guy who wants to be President, and he'll say what's necessary to get the job.

That's a really good line of attack. The media is too far gone to get this, but I'm sure anyone else can easily figure this out.

George Will took a whack yesterday, too.

The purpose of a writ of habeas corpus is to cause a government to release a prisoner or show through due process why the prisoner should be held. Of Guantanamo's approximately 270 detainees, many certainly are dangerous "enemy combatants." Some probably are not. None will be released by the court's decision, which does not even guarantee a right to a hearing. Rather, it guarantees only a right to request a hearing. Courts retain considerable discretion regarding such requests.

As such, the Supreme Court's ruling only begins marking a boundary against government's otherwise boundless power to detain people indefinitely, treating Guantanamo as (in Barack Obama's characterization) "a legal black hole." And public habeas hearings might benefit the Bush administration by reminding Americans how bad its worst enemies are [...]

McCain, co-author of the McCain-Feingold law that abridges the right of free political speech, has referred disparagingly to, as he puts it, "quote 'First Amendment rights.' " Now he dismissively speaks of "so-called, quote 'habeas corpus suits.' " He who wants to reassure constitutionalist conservatives that he understands the importance of limited government should be reminded why the habeas right has long been known as "the great writ of liberty."

I'll tell you, the consensus that McCain doesn't have core beliefs on plenty of issues and just follows the conservative track is picking up a lot of steam. And there's a parallel narrative of masking his deficiencies, hiding behind his resume. When his own website's decription of his record on Iraq doesn't start until August 2003, you know he's hiding his cheerleading for the war and the initial vote.

"Duplicitous" is the word that springs to mind.

...by the way, if you want to see someone with a truly terrible legal argument about Guantanamo, look no further than John Yoo.