Washington: Still An Accountability-Free Zone

Steny Hoyer has decided to take on the mantra of looking forwards and not backwards.

Sen. Chris Dodd (D-Conn.) and a handful of prominent Democrats said yesterday they would introduce legislation to strip telecom giants of immunity for possibly violating customer privacy by providing information to the government without a warrant.

But Hoyer seems uninterested in pushing the legislation through the House.

"I don't think revisiting that issue is going to get us anyplace," Hoyer told The Hill today.

Nope, sure won't! If you don't count a place of... justice and accountability.

Dan at Pruning Shears wonders if Hoyer is "the worst Democrat alive, or ever?" It's a very difficult question. Actually, he's just a front for corporate hegemony, in this case the telecoms.

I pretty much knew that Dodd's bill was going nowhere, but Hoyer's rationale is what got me.

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.

If Accountability Is The Standard

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

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

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

"If accountability is the standard." Nice.

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

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

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

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

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

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

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

Why A Special Prosecutor? Let Me Count The Ways

We have so many reasons from the last Administration that highlight the importance of a special prosecutor to deal with the wreck of the previous eight years, it's a serious task to count them all. Aside from torture, warrantless spying, black sites, indefinite detention, the suspension of habeas corpus, outing a covert CIA operative, lying the country to war in Iraq? You mean we need more reasons?

More broadly, one can highlight the problem of an accountability-free zone in Washington, regardless of the issue. If there is literally no issue where top officials can ever be held to account, this does nothing but give government, in particular the executive branch that deals with security and secrecy, a license to run wild. Consider just the past 48 hours:

• We finally got a report on the scope of the Administration's spying programs, the consensus of five Inspectors General, and while we learned a fair bit of interesting details about the nature of the internal debate over the program, the fact that John Yoo was one of the only human beings in America to know about it because the Cheney/Addington crowd knew he would produce favorable rulings legitimizing it, and the fact that the secrecy ultimately undermined whatever the program was designed to produce in terms of intelligence, all we really learned is that some surveillance program operated completely outside the boundaries of the law, without oversight by Congress, and we to this day have no idea about the extent or nature of the spying. As Glennzilla says, this does not comprise an investigation:

Nonetheless, because the Obama administration is actively blocking any real investigation -- Obama opposes all Congressional investigations into Bush-era crimes and, worse, is engaged in extraordinary efforts to block courts from adjudicating the legality of Bush's surveillance activities by claiming that even long-obsolete and clearly criminal programs are "state secrets" -- it is quite likely, despite how blatant is the lawbreaking, that there will be no consequences for any of it. In a Look-to-the-Future-Not-the-Past political culture, it's irrelevant how severe is the lawbreaking by high government officials. They know they will face no consequences even when, as here, they deliberately commit felonies -- which is precisely why criminality is so rampant in our political class [...]

The IG Report is more notable for what it fails to address than for what it discloses, but that's the nature of IG Reports. Most of the key players who authorized the illegal domestic spying -- David Addington, John Yoo, Dick Cheney, Andrew Card, John Ashcroft, George Tenet -- simply refused to talk to the IGs or, in many cases, didn't even bother responding to their request. The IG's have no power at all to compel them to do so; it's entirely optional. That -- aside from the fact that they work within the Executive Branch and for the very agencies they are supposed to investigate -- is what makes IGs such an inadequate substitute for real oversight: no matter how much integrity and independence they might have, they are extremely limited in what they can achieve.

As any litigator will tell you, the lack of power to compel key witnesses to answer questions and produce documents severely hampers any ability to conduct a real investigation. Yet, when they passed the FISA Amendments Act -- which legalized Bush's spying programs and immunized lawbreaking telecoms -- Democratic leaders kept pointing to the requirement of an IG Report to placate those complaining that they were whitewashing and legalizing Bush abuses. But IGs are simply incapable, given their very limited powers and their institutional allegiances, of any real investigation of this sort. What they were unable to disclose in this Report underscores how limited are their investigative abilities [...]

Over the past couple of years, there have been isolated leaks suggesting abuses of these eavesdropping powers, but there has been no real investigation into the ends to which these surveillance powers were used. As a legal question, it matters little: eavesdropping without warrants is a felony no matter the purpose for which it was done. But since FISA's warrant requirement arose from the recognition that widespread surveillance abuses were virtually inevitable if eavesdropping was conducted without judicial oversight, the lack of any investigation into this question reveals the extent to which both parties have been eager to help cover-up the crimes that were committed during the Bush years. The IG Report sheds some light onto what happened, but most of it, as intended, remains in the dark, and real accountability is still as far away as it was before this Report was issued.

Russ Feingold said in a statement that "This report leaves no doubt that the warrantless wiretapping program was blatantly illegal and an unconstitutional assertion of executive power."

• The United States government, under two Presidents, blocked any investigation into the mass slaughter of perhaps thousands of Afghans by a warlord.

American officials had been reluctant to pursue an investigation — sought by officials from the F.B.I., the State Department, the Red Cross and human rights groups — because the warlord, Gen. Abdul Rashid Dostum, was on the payroll of the C.I.A. and his militia worked closely with United States Special Forces in 2001, several officials said. They said the United States also worried about undermining the American-supported government of President Hamid Karzai, in which General Dostum had served as a defense official.

“At the White House, nobody said no to an investigation, but nobody ever said yes, either,” said Pierre Prosper, the former American ambassador for war crimes issues. “The first reaction of everybody there was, ‘Oh, this is a sensitive issue; this is a touchy issue politically.’ ”

It is not clear how — or if — the Obama administration will address the issue. But in recent weeks, State Department officials have quietly tried to thwart General Dostum’s reappointment as military chief of staff to the president, according to several senior officials, and suggested that the administration might not be hostile to an inquiry.

These are the prisoners stuffed into metal containers without food and water, and left helpless as guards shot into the containers. And we never investigated it, despite having a military presence in the country for seven years. Agence France Press has more.

• And then there's this:

The Central Intelligence Agency withheld information about a secret counterterrorism program from Congress for eight years on direct orders from former Vice President Dick Cheney, the agency’s director, Leon E. Panetta, has told the Senate and House intelligence committees, two people with direct knowledge of the matter said Saturday.

The report that Mr. Cheney was behind the decision to conceal the still-unidentified program from Congress deepened the mystery surrounding it, suggesting that the Bush administration had put a high priority on the program and its secrecy.

Mr. Panetta, who ended the program when he first learned of its existence from subordinates on June 23, briefed the two intelligence committees about it in separate closed sessions the next day.

Remember that we have no idea what this program is, although there are some indications that this may be the infamous executive assassination ring. So because of the lack of accountability, the Vice President can order the CIA to keep a sensitive counter-terrorism program completely secret and therefore beyond oversight.

I would offer that all of these programs and secret plans and extra-Constitutional deployment of powers, well summarized here by Tom Watson, are a direct result of the complete lack of accountability for the actions taken by officials in the executive branch. The processes of oversight through the Congress and the Inspector General reports offer little opportunity for sanction. The expansion of executive power over the years gives many opportunities to short-circuit accountability through invocations of state secrets or national security. So without an independent prosecutor with subpoena power allowed to follow out the dictates of equal justice under the law, we will see an increase of air into the balloon, more and more, until it consumes us all. We have to pop the unaccountability bubble.

Holder Of The Cards

Newsweek is reporting that the Attorney General is considering the appointment of a special prosecutor to probe the Bush/Cheney torture regime.

Holder, 58, may be on the verge of asserting his independence in a profound way. Four knowledgeable sources tell NEWSWEEK that he is now leaning toward appointing a prosecutor to investigate the Bush administration's brutal interrogation practices, something the president has been reluctant to do. While no final decision has been made, an announcement could come in a matter of weeks, say these sources, who decline to be identified discussing a sensitive law-enforcement matter. Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama's domestic priorities, including health care and energy reform. Holder knows all this, and he has been wrestling with the question for months. "I hope that whatever decision I make would not have a negative impact on the president's agenda," he says. "But that can't be a part of my decision."

This comes smack dab in the middle of a more personal profile of Holder, with sketches of his easygoing temperament, his fealty to the law measured against his sympathy with the President's agenda, the figure that he and his wife cut at dinner parties (!), his desire to seek common ground in an Obama-esque fashion, a longish section on the Marc Rich issue, and more. It's almost an elegy for the Eric Holder before making the decision to appoint an independent prosecutor, if not a warning that this man will be lost if he pursues such a decision. It's almost that the reporters were preparing a puff piece or beat sweetener and they stumbled upon some hard news.

But there is news here, even beyond the point on an independent prosecutor. The authors try to depict the actions of the Justice Department throughout the Obama Presidency, and on that front, they seem to have taken Holder's side as someone trying desperately to do the right thing regardless of the consequences. Such as:

Holder couldn't shake what he had learned in reports about the treatment of prisoners at the CIA's "black sites." If the public knew the details, he and his aides figured, there would be a groundswell of support for an independent probe. He raised with his staff the possibility of appointing a prosecutor. According to three sources familiar with the process, they discussed several potential choices and the criteria for such a sensitive investigation. Holder was looking for someone with "gravitas and grit," according to one of these sources, all of whom declined to be named. At one point, an aide joked that Holder might need to clone Patrick Fitzgerald, the hard-charging, independent-minded U.S. attorney who had prosecuted Scooter Libby in the Plamegate affair. In the end, Holder asked for a list of 10 candidates, five from within the Justice Department and five from outside [...]

For weeks Holder had participated in a contentious internal debate over whether the Obama administration should release the Bush-era legal opinions that had authorized waterboarding and other harsh interrogation methods. He had argued to administration officials that "if you don't release the memos, you'll own the policy." CIA Director Leon Panetta, a shrewd political operator, countered that full disclosure would damage the government's ability to recruit spies and harm national security; he pushed to release only heavily redacted versions.

Holder and his aides thought they'd been losing the internal battle. What they didn't know was that, at that very moment, Obama was staging a mock debate in Emanuel's office in order to come to a final decision. In his address to the cadets, Holder cited George Washington's admonition at the Battle of Trenton, Christmas 1776, that "captive British soldiers were to be treated with humanity, regardless of how Colonial soldiers captured in battle might be treated." As Holder flew back to Washington on the FBI's Cessna Citation, Obama reached his decision. The memos would be released in full.

Holder and his team celebrated quietly, and waited for national outrage to build. But they'd miscalculated. The memos had already received such public notoriety that the new details in them did not shock many people. (Even the revelation, a few days later, that 9/11 mastermind Khalid Sheikh Mohammed and another detainee had been waterboarded hundreds of times did not drastically alter the contours of the story.) And the White House certainly did its part to head off further controversy. On the Sunday after the memos were revealed, Emanuel appeared on This Week With George Stephanopoulos and declared that there would be no prosecutions of CIA operatives who had acted in good faith with the guidance they were given. In his statement announcing the release of the memos, Obama said, "This is a time for reflection, not retribution." (Throughout, however, he has been careful to say that the final decision is the attorney general's to make.)

This depiction of Holder and the Justice Department acting at cross purposes to a White House that wanted to keep a lid on past abuses of the Bush Administration neglects the fact that they have in many cases openly facilitated such a cover-up in court filings. The DoJ has consistently invoked the state secrets privilege to shut down lawsuits, tried to keep various records from the past secret, advocated for things like preventive detention and post-acquittal detention, and so on. Among many liberals the Justice Department has been the source of the greatest disappointment in the entire Administration. Clearly, they got the ear of Newsweek, who decided to paint a narrative around this decision on an independent prosecutor. But it doesn't totally scan. Here's the conclusion:

The next few weeks, though, could test Holder's confidence. After the prospect of torture investigations seemed to lose momentum in April, the attorney general and his aides turned to other pressing issues. They were preoccupied with Gitmo, developing a hugely complex new set of detention and prosecution policies, and putting out the daily fires that go along with running a 110,000-person department. The regular meetings Holder's team had been having on the torture question died down. Some aides began to wonder whether the idea of appointing a prosecutor was off the table.

But in late June Holder asked an aide for a copy of the CIA inspector general's thick classified report on interrogation abuses. He cleared his schedule and, over two days, holed up alone in his Justice Department office, immersed himself in what Dick Cheney once referred to as "the dark side." He read the report twice, the first time as a lawyer, looking for evidence and instances of transgressions that might call for prosecution. The second time, he started to absorb what he was reading at a more emotional level. He was "shocked and saddened," he told a friend, by what government servants were alleged to have done in America's name. When he was done he stood at his window for a long time, staring at Constitution Avenue.

The failure to hold those who directed and authorized torture to account impacts our national security and foreign policy in so many different ways, beyond encouraging further abuses and encroachment of executive power. Just this week, alleged cases of torture by the Mexican government in prosecuting the drug war have been revealed, and despite American funding contributing indirectly to these actions, we have little recourse to mount any efforts against it.

Many Mexican human rights activists do not support the [human rights] conditions, noting that they were imposed by a U.S government widely accused of torturing prisoners in Iraq, Afghanistan and at Guantanamo Bay, Cuba.

“It really takes a lot of cynicism, a lot of hypocrisy, for the United States to say, ‘We will give you money to fight drug trafficking as long as you respect human rights,’” said José Raymundo Díaz Taboada, director of the Acapulco office of the Collective Against Torture and Impunity, which documents abuses in Guerrero.

I think nobody will expect Holder to follow through on this until the moment he announces it, especially given the record of the Obama Justice Department. But there's at least a glimmer of hope that in the documents of the Bush era, the abuses crossed, in the mind of the Attorney General, a bridge too far. And if this is a trial balloon, it's one of the first in the direction of accountability and justice. Perhaps they're looking for some agreement.

Are We Calling This Victory?

You all probably know by now that Karl Rove was deposed in front of House Judiciary Committee staffers the other day, about the US Attorneys scandal and the prosecution of former Alabama Governor Don Siegelman. But what you don't know, and what I don't know, and what nobody knows, is why. At some level, I'm glad that Congress was able to assert a modicum of its authority and at least get Rove (and apparently, Harriet Miers back in June) on the record with a set of questions. But to what end? Certainly not one of precedent, and not an investigative one as well, it seems.

The White House's foot-dragging may have inflicted some measure of political damage. But in terms of the legal repercussions, by coming to a deal while the case was still pending in an appeals court, the Bushies have largely succeeded in one of their goals: ensuring that no clear precedent has been established limiting the president's power to claim executive privilege in such cases. And the Obama White House's role in helping to secure the deal for Rove's testimony suggests that's an outcome they wanted too.

As for the underlying issue -- the quest to learn what really happened in the firings and the Siegelman prosecution, things remain murky at best. There are conflicting reports about whether Rove will sit for another day of testimony. It's also unclear when and how the committee will decide which parts of Rove's testimony, if any, can be made public, and in what form the probe's findings will be released.

Siegelman, quoted later in the piece, thinks John Conyers will continue to investigate until he finds the truth. He must be an eternal optimist. This has reached the point where Republicans can demagogue with the words "old news," and that was precisely the Bush White House's goal. Even if House Judiciary eventually cobbles together a report and makes recommendations, the chances of the Justice Department taking whatever recommendations concern accountability measures are, in a word, remote. They haven't even moved to set aside the verdict on Siegelman, though I did notice that the Justice Department whistleblower in the case has been fired. At least someone is held to account, right?

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.

Accountability Now

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

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

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

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

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

Amazingly, People Want To Choose Their Own Representatives

A new poll from Susquehanna Research in Pennsylvania informs us that 63% of registered Democrats want to see Arlen Specter challenged in a primary. That doesn't even mean they want him beat. They want him to make a compelling argument why Democrats should choose him to represent them. That would be a little thing called democracy. And in general, people like it.

Establishmentarians like Ed Rendell would rather not let the rabble experience democracy. They'd rather protect their friends and colleagues - Rendell himself worked with Specter in the Philly DA's office years ago.

None of this necessarily means that Joe Sestak is a liberal champion. It means that primaries and accountability through them are really the main tools that voters have to hold lawmakers to their promises. If Arlen Specter faces a primary, he suddenly has a powerful reason to support a Democratic agenda. Actually, so does Joe Sestak. Primaries and re-elections hold politicians to account. That's why they're not elected for life, though sometimes it seems that way.

Obama Lays The Hammer Down On Torture Prosecutions

In his speech today, the President suggested that existing structures could deal with investigations and even proseuctions of those who violated law during the Bush Administration's torture regime. He means Congressional inquiries rather than an independent commission, and Justice Department prosecutions rather than through an indepedent or special counsel.

I know that these debates lead directly to a call for a fuller accounting, perhaps through an Independent Commission.

I have opposed the creation of such a Commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws.

A fine collection of words. But in his meeting with civil liberties and human rights groups yesterday, Obama suggested that he - not the Attorney General - would not allow such prosecutions to take place.

On at least one issue, though, Obama seems to have made up his mind. Isikoff reports that Obama announced his opposition to torture prosecutions--an unsurprising admission, perhaps, but one that must have disappointed many in attendance. Previously he had said that the question of investigation and prosecuting Bush administration officials was one for Holder to answer. But with Holder sitting right beside him, there's no doubt he's feeling pressure to, as they say, look forward, not backward.

So in public, the President gave a pretty speech about upholding the rule of law, but inside the White House, he vows not to uphold it, to do precisely the opposite of what he claims to believe makes us "who we are as a people." In fact, it does violence to the rule of law for the President to even decide who does and does not get prosecuted, as that is nowhere near within his jurisdiction. And as each new revelation about criminal activity committed at the highest levels comes out, the hollowness of Obama's rhetoric becomes more and more clear:

One source with knowledge of Zubaydah's interrogations agreed to describe the legal guidance process, on the condition of anonymity.

The source says nearly every day, (a contractor named James) Mitchell would sit at his computer and write a top-secret cable to the CIA's counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration's legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

A new document is consistent with the source's account.

The CIA sent the ACLU a spreadsheet late Tuesday as part of a lawsuit under the Freedom of Information Act. The log shows the number of top-secret cables that went from Zubaydah's black site prison to CIA headquarters each day. Through the spring and summer of 2002, the log shows, someone sent headquarters several cables a day.

"At the very least, it's clear that CIA headquarters was choreographing what was going on at the black site," says Jameel Jaffer, the ACLU lawyer who sued to get the document. "But there's still this question about the relationship between CIA headquarters and the White House and the Justice Department and the question of which senior officials were driving this process."

This happened BEFORE the Office of Legal Counsel authorized torture through the Bybee/Yoo memos, and at a time when Gonzales was not in the Justice Department or involved in the workings of the CIA or any other federal agency. He was the President's lawyer and speaking, presumably, for the President. Directly from the White House. Directing and approving torture without legal opinions. I agree with the groups seeking disbarment of the lawyers involved with twisting the law to justify the Bush torture program, and apparently, the first lawyer involved in doing this was Alberto Gonzales.

But the President of the United States would rather issue a blanket directive that actions like this - the lawyer to the President sitting down and cabling approval of torture tactics against a prisoner on a daily basis - should face no accountability whatsoever. Making the rhetorical flourish in the National Archives today very difficult to take seriously.

UPDATE: David Waldman was at the meeting, and he says on the point of investigations and prosecutions, Isikoff's reporting is wrong. Duly noted.

The Very Slow-Ticking Time Bomb Scenario

Liz Cheney ran interference for her dear old dad today on Morning Joe, pushing that "ticking time bomb" scenario talking point we've all come to know and love. Apparently she found somewhere in those memos the insistence that the torture techniques were only supposed to be used in the event of imminent attack, which to her dad, is all the time, so I don't get the distinction.



I'd like to introduce dear Liz to the technique of sleep deprivation, which was cited in the memos and which we used on multiple prisoners, which multiplied the abuse of the other techniques and which research scientists have concluded causes enough severe mental anguish to constitute torture. Interrogators would have their hands and feet shackled and stripped down to diapers, and kept awake for as much as 180 hours at a time.

Now, this isn't exactly an original thought, and I don't remember where I read it so I can't cite it. But a technique that takes 11 days to break a prisoner is most definitely NOT a technique used in reaction to an imminent plot, particularly not a ticking time bomb scenario. Maybe Liz can walk me through the thought process behind "Times Square's set to blow up in an hour, quick, grab the diaper and wait 11 days!" Somehow, I think it's sprinkled with bullshit.

(By the way, screw the LA Times for stealing an Obsidian Wings post and citing it by referring to "a separate online posting.")

Now, if there somehow is a ticking time bomb scenario that plays out over the course of two weeks, and if there is definitive evidence to that effect, then I would follow the lead of transparency advocate Dick Cheney and begin a full investigation into what specifically happened in our name. Of course, contra Richard Cohen, I don't think it matters whether or not torture "works," whatever "works" means, because once you put aside the law out of fear, the extension of the argument ends up being "If we murder every Australian male in the country, can we reduce obesity rates?" or "Will mass castration provide affordable health care?" or something. The moral relativism grows quickly absurd. And you give culpable monsters the ability to twist the truth. I have this crazy notion that a law remains the law no matter what day it is on the calendar.

Who Is Gunning For Nancy Pelosi?

Like Marcy Wheeler, I don't know what the WaPo is trying to get at with this story alleging that a top Pelosi aide knew about waterboarding because he attended a briefing with Jane Harman in early 2003 where that was made known. First of all, the aide in question, Michael Sheehy, worked for Harman at the time. Second, the briefing list does not actually specify that waterboarding was covered in the briefing. Third, the briefing was highly classified, and Sheehy wasn't working for Pelosi, so the idea that he would have at that time or any point in the future (he eventually returned to work for Pelosi) divulge the secrets of the briefing would violate federal law - is that the impression the WaPo wants to give? And fourth, Harman lodged a complaint as a result of this briefing, asking that the CIA tapes not be destroyed, and given that this was basically the end of the line as far as Democratic opposition was concerned, whether or not Pelosi knew is kind of immaterial. Pelosi acknowledged this a long time ago:

"It was my understanding at that time that Congresswoman Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred," Pelosi said in the Dec. 9, 2007, statement.

Marcy also notes that the WaPo stretches the truth in suggesting that Pelosi learned about waterboarding from Harman:

And from discussions dating back to 2007, the WaPo completely misrepresents the plain statement of a Pelosi statement on Harman's stance on torture (but not necessarily specifically waterboarding).

"Pelosi herself acknowledged in a December 2007 statement that she was aware that Harman had learned of the waterboarding and had objected in a letter to the CIA's top counsel."

That's not what Pelosi said: She made no specific reference to waterboarding (as opposed to enhanced techniques) [...]

So to review: WaPo says that the CIA briefing list proves Sheehy learned about torture in February 2003. And WaPo says that Pelosi's statement proves she learned the CIA was waterboarding by around that point. While I don't dispute the underlying facts (that Sheehy learned about waterboarding in February 2003, that Pelosi learned about it around then--I don't know one way or another), neither of these statements prove what the WaPo says it does. If the WaPo knows this for a fact, it knows this from another source.

Which is why I find this tidbit--the only anonymous source in an article based on interviews with Democrats Jane Harman and DiFi and Republicans Crazy Pete Hoekstra and Cryin' John Boehner--so interesting.

"A Democratic source acknowledged yesterday that it is almost certain that Pelosi would have learned about the use of waterboarding from Sheehy."

In other words, someone's out to get Nancy Pelosi - and it's a Democrat, quite possibly a member of her California delegation. All of this "who knew" timeline stuff, furthermore, is a misdirection when compared with the plain fact that the CIA, under the direction of the highest levels in the White House, violated domestic and international law, twisting the law to make it seem legal; and those same people at the top who authorized this destroyed dissenting opinions to theirs. And this exercise in tautological thinking and the chasing of red herrings gets us approximately nowhere.

Even after the release of the torture memos, Republicans persist in denying that techniques like waterboarding or chaining a prisoner in a standing position for hours constitute torture. The most common defense of waterboarding is that we subjected our own soldiers to it. That's true--as a way of training them to withstand enemy torture. When you reverse engineer a torture-resistance program, you're almost by definition engaging in torture.

We either have a legal system designed to adjudicate lawbreakers or we don't. Obsessing over who knew what at what time in secret briefings misses the point.

Accountability For Random Functionaries

I think you have to admit that, even though Obama fired the guy, that's a pretty dope photo.



Worth terrorizing a major American city over? I don't know, it's pretty damn good. Somebody has an eye.

That White House Military Office guy could get a job designing Macy's windows in a second.

I, for one, am thrilled that George Bush and Dick Cheney are having a nice retirement, but the guy who gave the green light on the cool Air Force One pic resigns in disgrace.

Stupid CIA Tricks

Marcy Wheeler has done the heavy lifting on this story that has cable news in a tizzy about how Nancy Pelosi, according to the narrative, knew about torture techniques in 2002 but said nothing, implicating her in the nefarious scheme. I just want to make a few possibly redundant point.

• CIA agents are a group of professional liars. I don't even think that's slanderous, it's pretty much their job description. They exist to collect intelligence but the means they have used, and the missions on which they have embarked, have strayed far from this purpose and into the areas of disinformation and false flags and just out and out lying. We've already seen their psy-ops training put to work in the traditional media recently, when they got ABC to falsely report that Abu Zubaydah was only waterboarded once, and that it succeeded famously. I am thoroughly unsurprised that the CIA went to the very same network to get favorable treatment on their latest story implicating Pelosi. Within a matter of hours, eagle-eyed journalists spotted the flaw - a letter accompanying the documents, none of which prove conclusively that the CIA told Pelosi about waterboarding, states that the information about the briefings may not be accurate or reliable. It says, and I quote, "In the end, you and the Committee will have to determine whether this information is an accurate summary of what actually happened." Sounds definitive to me! Nancy's a liar!!!1!

• Let's say for the sake of argument that Pelosi was briefed about techniques that constitute torture. First, based on the clear timeline, she was briefed after the torture was committed. Second, I find it curious that the wingers appear to be shocked that Pelosi didn't leak classified information by revealing the contents of the briefings. There is a reasonable debate that can be had over whether the speech and debate clause of the Constitution pre-empts the classification process, and whether Pelosi could have taken to the House floor to raise an objection. I'm wondering whether she would have been praised for her consistency by the right, at that point. Or whether she would have been rhetorically hung as a traitor who damaged national security. In fact, there were few options for anyone to register a complaint. If anything, this entire exercise proves that the briefing process for classified information, and the Select Committees on Intelligence themselves, are terribly broken. Marcy's post on the briefing process should leave no doubts about that.

• Furthermore, pointing to dishonest and discredited CIA documents and taunting "See, your leaders are just as responsible" may be, if it were true, a useful piece of information when determining why many Democrats aren't exactly gung-ho for prosecution or accountability, but from a civil liberties standpoint it means absolutely nothing. War crimes are not mollified by their bipartisan nature, or by a caveat that others were briefed about the war crimes after the fact. Those of us who expect accountability when people in government break the law really aren't concerned with the letter next to their name designating their political party. In fact, this only further cements the need for an independent prosecutor who can bring his own judgments untainted by party to this whole affair. And if Republicans think that threatening to look into crimes from the Clinton Administration will send a chill among those who desire accountability, they're wrong. It would relieve us that we're finally putting down childish things and moving away from the make-believe land of American exceptionalism in all things and into a recognition that people are fallible and they deserve to take responsibility for their actions.

In Defense of the RNC (!?!)

Aside from it being hilarious to watch Michael Steele circle the bowl and have his power shrink with every misappropriate statement and bad decision, I don't see the problem here. The Chairman of a political party should NOT have unilateral authority over spending. In California, this has led to some horrible outcomes, like the state Democratic Party funneling millions of dollars to legislative leaders instead of spending them on elections. Accountability and transparency are DESIRABLE outcomes, and I applaud those RNC members for ensuring a little more of that. Yes, Steele looks like an idiot, but a top-down bureaucratic structure inevitably corrodes the process. I'd rather that he made all the decisions.

This Week In Torture

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Condi Invokes The Nixon Defense

Condoleezza Rice, who's being investigated and may go to prison if she ever sets foot in Spain, had a conversation at the Hoover Institute where she follows in the footsteps of another California politician:

Q: Is waterboarding torture?

RICE: The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture. So that's -- And by the way, I didn't authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department's clearance. That's what I did.

Q: Okay. Is waterboarding torture in your opinion?

RICE: I just said, the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.

Score one for pop culture, because thanks to the trailer to Frost/Nixon, most of the country understands the insanity of a statement like this.

Cenk Uygur notes that Rice was also questioned about her verbal authorization for waterboarding and other torture techniques to the CIA, and gave a classic answer:

"I didn't authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department's clearance. That's what I did."

Can we ask why she teaches at Stanford at this point, similar to asking why John Yoo remains at Berkeley and Jay Bybee on the federal bench?

Condi Rice's entire career in the White House was marked by a denial of responsibility. "Nobody could have anticipated" should be the epitaph on her gravestone. But I don't know what legal world exists where a conveyance of authorization does not equal an authorization. Uygur concludes:

This is why I say these people don't understand the whole concept behind America. In our system of government, the president is not supposed to be above the law. He is not a king; his word is not the law. The president can violate the law and when he does, he is supposed to be held accountable. That is supposed to be one of the pillars of our democracy.

Look at what she said: "[B]y definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture." Does that mean the president can authorize any kind of torture under the Convention Against Torture?

If someone doesn't do something about this dangerous idea it will do more damage than the torture itself. Yes, the torture damaged our reputation across the world, helped terrorists recruit fighters against us, endangered our soldiers and sullied the name of America. But if this precedent - that the president can authorize anything and make it legal "by definition" - is allowed to stand, then our whole form of government is in jeopardy.

This was not the consensus view of everyone in the government at that time. Not everyone was swept up in 9/11 fever. Military experts warned against using these techniques for a variety of reasons, because it put our soldiers at risk and yielded bad information, setting aside the legal, ethical and moral implications of torture. So the use of these techniques, and the legal theories underpinning them, can only be seen as deliberate and thought-out by the perpetrators. They conspired to break the law for their own reasons, be it their warped beliefs about the Arab Mind, or their desire to expand executive power, or producing the false confessions necessary to assert an Iraq/Al Qaeda link, or whatever. These were sane people who made the decision to torture. And we have courts available to deal with the consequences.

...Spencer Ackerman thinks Condi made news:

But Rice is now portraying herself as merely being a conduit for approving the CIA's interrogation regime: "I conveyed the authorization of the administration to the agency." Well, there are only two more-senior officials than Rice in this context, and that's Bush and then-VP Dick Cheney. If she hadn't made a decision on the part of the administration for the Abu Zubaydah interrogation plan, only one of these two men would have had the authority to do so. And all of this would have happened before the Justice Department determined the interrogation techniques to be legal.

My impression of the SASC report was that Condi told the CIA they could do ahead and waterboard pending OLC approval. But it'd be nice to haul Rice before a panel and ask her to clarify this.

Presser Thoughts

Watched Obama's presser. Man, he doesn't want to answer anything regarding what the Bush Administration committed regarding torture at all. He did eventually admit that waterboarding is torture, but Jake Tapper (decent job Jake) really had to pull it out of him. He said "Waterboarding violates our ideals and our values. I do believe that it's torture." He made a good series of statements of why we don't torture, invoking Churchill's treatment of German detainees during World War II, and without so many words, shot down Dick Cheney's insistence that cherry-picked documents prove the success of torture techniques, basically saying that he's seen nothing to disabuse him of the notion that torture makes us less safe. I think we'll eventually see those and other memos in the slow trickle of the fact pattern.

But the elocution was maddening. He admits waterboarding was torture, but answering a question of whether the Bush Administration's torture tactics violated international law, he called them a "mistake." As if it was an oversight, not necessary to prosecute.

Now, a President makes no decisions on whether or not to prosecute anyone, and he shouldn't prejudge any future cases by agreeing on what the Bush Administration did or didn't do. But these are key issues that are not getting answered, and a continued insistence that we look forward and not backward being pressed. He called torture a "shortcut," almost conceding the point that it works, but in totality said the country is made less safe. Clearly he's getting some information of some sort showing certain techniques being effective in some way, but it's all vague, and David Axelrod just followed up on Countdown by saying it's unclear which information came from which techniques. As you know, I think it's wrong to have this debate at all, and that such a debate debases us and violates our ideals and our values just as much. And we should stop talking about whether torture works, because in totality it doesn't, and start talking about why it has been prosecuted as torture for centuries. The cost-benefit analysis might be somehwat useful, but it doesn't make the needed argument about our essential debasement when we engage in such behavior.

And by the way, with no further actions on torture, we lose the argument with allies about our values and our commitment to the rule of law as much as we did by torturing in the first place. They'll go their own way.

Judge Baltasar Garzon will probe the "perpetrators, the instigators, the necessary collaborators and accomplices" to crimes of torture...

Garzon said that documents declassified by the US administration and carried by US media "have revealed what was previously a suspicion: the existence of an authorised and systematic programme of torture and mistreatment of persons deprived of their freedom" that flouts international conventions.

This points to "the possible existence of concerted actions by the US administration for the execution of a multitude of crimes of torture against persons deprived of their freedom in Guantanamo and other prisons including that of Bagram" in Afghanistan.

Michael Scherer of Time also put together a great question about the state secrets privilege, and got the President to state that the privilege is overly broad and ought to be narrowed. As for why Obama's lawyers in the Justice Department continue to use it, he claimed that they just got into office and had to come up with these briefs and haven't mastered the issue yet to the degree that they need to. I think that's a desperately bad answer. First of all, we're now talking three months. Second, shutting down lawsuits because you haven't had time to figure out the national security implications makes little sense, and the 9th Circuit Court agreed yesterday.

Overall, I think Obama is doing a great job with a bad hand, and has really moved the country forward in the first 100 days. On a few issues - Afghanistan, the banks, and this inability to break fully with the Bush Administration on the rule of law, or offer any accountability - we part ways. That's OK - it's my job to build a movement to push him in the right direction and criticize where necessary.

But what Obama has been missing has been an independent, obstreperous citizens' movement demanding fundamental reform. Roosevelt had the labor movement, the Townsend Clubs, Huey Long, socialists and communists challenging him from the left. Johnson had the civil rights movement forcing his hand.

This kind of opposition isn't easy. No president likes to face disruption, particularly from what he would consider his base. There are similar stories told about both Roosevelt and Johnson meeting with leaders of the movements and saying something to the effect of, "I agree with you, now go out there and make me do it." But in reality, Roosevelt wanted to squelch Long and tame labor. And Johnson repeatedly ordered Hubert Humphrey to bring the civil rights demonstrations to an end, saying that they weren't helping the cause. King got a lot of pressure —to say nothing of wiretaps and FBI investigations—to get back in step.

Yet it is precisely these movements—independent, disruptive, passionate, demanding bolder reform, taking on entrenched powerful interests—that enabled Roosevelt and Johnson to achieve far more than they ever thought possible. The New Deal we remember—Social Security, the Wagner Act, Fair Labor Standards, the SEC and Glass Stegall, progressive taxation—came not in the first 100 days, but as Roosevelt, under pressure from his left, geared up for re-election. The Voting Rights Act surely would not have been passed without Selma and many other sacrifices transforming public opinion to enable Johnson to act.

We have to be pests or we get what we deserve.

Good Faith

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Piliing On Will

At some point, you have to take a stand against all the conservative misinformation that lands on America's doorstep every morning in the daily newspaper, and I agree that George Will's global cooling column is a great place to start. His column last week, with its false data and revisionist history, was but a symptom of media failure, and it calls into question everything they do. This very detailed PDF from Brad Johnson at The Wonk Room details all of the errors and provides a suggested correction:

George Will’s Feb. 15, 2009 column claimed that experts cited a 2008 decline in “global sea ice” as evidence of man-made global warming. Scientists cited the observed decline in Arctic, not global sea ice. Will’s column claimed that the University of Illinois’ Arctic Climate Research Center said that global sea ice levels are “now equal to those of 1979.” At the beginning of January, the center said that global sea ice levels were “near or slightly lower than those of late 1979,” but global sea ice levels are now 8 percent below their levels in February 1979. Will’s column claimed the U.N. World Meteorological Organization said, “there has been no recorded global warming for more than a decade.” According to the WMO, global warming is continuing, with the past decade the warmest on record. Will’s column argued that imminent global cooling was a predicted planetary catastrophe in the 1970s. There was no scientific consensus in the 1970s that the Earth was headed
into an imminent ice age. Will’s column cited articles from Science magazine and Science News to imply the authors expected an imminent ice age. The Science article instead predicted an ice age within several thousand years, “ignoring anthropogenic effects.” The Science News article described climatology as an “infant science” and discussed predictions of man-made global warming that have since proven to be accurate. The Washington Post and George Will regret the errors.

There's no question that Will and The Washington Post erred, yet there is no such thing as accountability in the Beltway. So people are using letters to the editor to express their outrage and disapproval. Will appears in syndication in local papers all over the country, and the readers are speaking out:

Lawrence Journal-World: Will off base (Letter, 2/19/09)

[Will] puts together apparently irreconcilable statements from the mid-1970s and today, apparently in an effort to show that climate scientists don’t know climate change from a hole in their hats. I suppose it didn’t suit his political purposes to consult a few climate scientists. He says that climate change is No. 20 of 20 concerns according to a public poll. He is apparently Will-ing to have it remain there.

The Advocate: Will erred about global warming (Letter, 2/21/09)

Like many pundits, Will's belief in his own omniscience leads him to assume instant expertise on any topic. It also results in his repeatedly misleading the public on important issues such as global warming.

The Advocate should employ a fact checker for the columns it runs, or share responsibility for their misrepresentations.

Austin American-Statesman: Warming ignorance (Letter, 2/22/09)

George Will showed ignorance and pulled out the tired straw man that those of us who care about stopping climate change are gloom-and-doomers when the opposite is true.

Many more at the link.

This is well worth continuing to push. Silence in front of discredited theories and lies is not an option. We need to see some accountability.