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.

The Saddest Man

I didn't think too much about Dick Cheney's speech yesterday because the framing of a "showdown" between the President of the United States and the least popular human on the planet just made me laugh. But this monstrosity probably should be read and studied, because it offers a window into a diseased mind and an object lesson in specious logic.

First of all, the speech offered no broad vision of dealing with national security in the 21st century, but was simply an opening statement for Cheney's war crimes trial, with a defense of torture and all of the other illegal practices of his regime. But because these practices are indefensible, he structured this defense with lies and distortions and paragraphs that were sometimes contradictory in the space of a few words. He mentioned 9/11 twenty-five times, and tried to re-create the atmosphere of fear and desperation, a world in which he clearly still lives, traumatized and desiring only to inflict pain. He continued with this idea that the Bush Administration kept America safe, except on 9/11, when nine months of ignored warnings and inattention produced the tragic wreck of that day. And even more people died in future actions in Iraq and Afghanistan than died on September 11, anyway. He takes credit for taking down A.Q. Khan's network when America had nothing to do with it and A.Q. Khan now walks as a free man. He talks about moving decisively against Al Qaeda when Osama bin Laden and Ayman al-Zawahiri remain at large, and when they pulled out of Afghanistan to start an unnecessary war in Iraq. He flat out lied about torture and its effectiveness on numerous occasions. He decried the Obama Administration's use of "euphemisms" when he was the one who INVENTED the term "enhanced interrogation techniques. He claims that Article II authority and the AUMF allows illegal actions. He CONTINUED - in this speech - to push a connection between Saddam Hussein and Al Qaeda. He kept claiming that the work at Abu Ghraib was the result of a few bad apples and not policy, which has been disproven time and again.

And then there's the most clever lie:

As far as the interrogations are concerned, all that remains an official secret is the information we gained as a result. Some of his defenders say the unseen memos are inconclusive, which only raises the question why they won't let the American people decide that for themselves. I saw that information as vice president, and I reviewed some of it again at the National Archives last month. I've formally asked that it be declassified so the American people can see the intelligence we obtained, the things we learned, and the consequences for national security. And as you may have heard, last week that request was formally rejected. It's worth recalling that ultimate power of declassification belongs to the President himself. President Obama has used his declassification power to reveal what happened in the interrogation of terrorists. Now let him use that same power to show Americans what did not happen, thanks to the good work of our intelligence officials.

It's incorrect that the President declassified the torture memos - the Justice Department did. And just a few paragraphs earlier, Cheney attacked the President for doing so. He only likes HIS kind of selective declassification. But one thing he knows - under an executive order by none other than George W. Bush, the CIA cannot declassify the documents he seeks while they are the subject of an ongoing lawsuit. Cheney knows this, so he can yap about the one document that would prove him right, knowing that it cannot be released. Cheney may have never seen the law as an impediment, and claims that Obama could insta-declassify whatever he wants, but he knows that the President won't choose to do so, allowing him to lie away about evidence that, by accounts of those who have seen it, wouldn't prove a thing.

But I'm really saying too much about this sad, pathetic man, trying to save himself from universal condemnation. Time has marched on.

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.

This Time I Do Believe The 11-Dimensional Chess

On the heels of the OLC memos, the SASC report, and the Sentate Intelligence Committee timeline, add yet another disclosure from Washington, this one more visceral than a legal opinion, to increase the pressure to act.

The Obama administration agreed late Thursday to release dozens of photographs depicting alleged abuses at U.S. prisons in Iraq and Afghanistan during the Bush White House.

The decision will make public for the first time photos obtained in military investigations at facilities other than the Abu Ghraib prison in Iraq. Forty-four photos that the American Civil Liberties Union was seeking in a court case, plus a "substantial number" of other images, will be released by May 28.

The photos, examined by Air Force and Army criminal investigators, are apparently not as shocking as those taken at Abu Ghraib, which became a symbol of U.S. mistakes in Iraq. But Defense Department officials nevertheless are concerned that the release could incite another backlash in the Middle East.

Some of the photos show U.S. service members intimidating or threatening detainees by pointing weapons at them, according to officials who have seen them. Military officers have been court-martialed for threatening detainees at gunpoint.

"This will constitute visual proof that, unlike the Bush administration's claim, the abuse was not confined to Abu Ghraib and was not aberrational," said Amrit Singh, a lawyer for the ACLU, which reached the agreement as part of a long-running legal battle for documents related to anti-terrorism policies under President George W. Bush.

If Abu Ghraib merely existed in documents, the impact would have been far less. Pictures, videos, just any images bring these abstract debates home in a more immediate way. And there will be even more disclosures to come from this ACLU lawsuit.

Other disclosures to be considered in the weeks ahead include transcripts of detainee interrogations, a CIA inspector general's report that has largely been kept secret, and background materials in a Justice Department investigation into prisoner abuse.

In each instance, Obama and his administration are being forced to decide whether to release the material entirely, disclose it with redactions, or follow the lead of the Bush administration and fight in court to keep it classified.

The OPR investigation, which is fully completed, will really put pressure on the DoJ lawyers who provided the legal justifications for torture.

Given all this, I just don't buy the official narrative about the White House blocking investigations and stalling accountability. Sure, they may be halting a rush to investigations for now, but they're methodically laying out a fact pattern, both by themselves and with the support of the Congress, that will make investigations impossible to ignore. I have no doubt that the President worries about his forward-looking agenda. But he made the tough decision to release the memos that kicked off this frenzy, and he's committing to releasing more. There's a difference between not wanting a commission and not wanting to be responsible for one. Of course, the best way to ensure that would be through a special prosecutor. After all, we now have senior Bush Administration officials definitively signing off on torture. A trickle of releases makes no sense without follow-up, investigation and some accountability. And surely Obama knows this.

No wonder Liz Cheney's so nervous.

Only If You Ignore The Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Rogue's Gallery

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

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

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

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

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

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

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

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

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

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

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

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

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

Jane Mayer cites a couple other culprits for us:

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

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

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

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

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

The SASC Report - "Designed To Elicit False Confessions"

The very long Senate Armed Services Committee report on torture and interrogation tactics used by the military has been released in unredacted form, on the heels of the OLC torture memos. Because the report gives a broader history of the Bush torture regime, it is unquestionably more damning, with more details and a more coherent timeline. For instance, we learn that the Bush Administration made a "wish list" for torture, before the first detainees even came into custody. Unlike the familiar narrative that torture techniques were only employed after the subjects refused to give up information, this was their M.O. from the beginning.

A report by the Senate Armed Services Committee released Tuesday night says that some harsh interrogation techniques used at Abu Ghraib prison weren’t approved by officials in the George W. Bush administration until after they were already being put into use.

“Intelligence and military officials under the Bush administration began preparing to conduct harsh interrogations long before they were granted legal approval to use such methods — and weeks before the CIA captured its first high-ranking terrorism suspect, Senate investigators have concluded,” the Washington Post reported Wednesday.

The paper adds, “Sen. Carl M. Levin (D-Mich.), chairman of the committee, said the new findings show a direct link between the early policy decisions and the highly publicized abuses of detainees at prisons such as Abu Ghraib in Iraq.”

“Senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques,” Levin said. “Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses.”

We knew that President Bush's order in February 2002, months before the Bybee torture memo, that Common Article 3 of the Geneva Conventions did not apply to Al Qaeda or Taliban subjects kicked off the finding of legal rationales for torture. But the Administration actually started the process in December 2001, when the General Counsel of the Department of Defense, William Haynes, solicited information on detainee "exploitation" from the agency that oversees SERE (Survival, Evasion, Rescue, Escape) training. And we know now, although I think we already knew this, that the SERE techniques were based on Chinese communist techniques, used against Americans to ELICIT FALSE CONFESSIONS.

Leading us to this:

The Bush administration applied relentless pressure on interrogators to use harsh methods on detainees in part to find evidence of cooperation between al Qaida and the late Iraqi dictator Saddam Hussein's regime, according to a former senior U.S. intelligence official and a former Army psychiatrist.

Such information would've provided a foundation for one of former President George W. Bush's main arguments for invading Iraq in 2003. In fact, no evidence has ever been found of operational ties between Osama bin Laden's terrorist network and Saddam's regime [...]

A former senior U.S. intelligence official familiar with the interrogation issue said that Cheney and former Defense Secretary Donald H. Rumsfeld demanded that the interrogators find evidence of al Qaida-Iraq collaboration.

"There were two reasons why these interrogations were so persistent, and why extreme methods were used," the former senior intelligence official said on condition of anonymity because of the issue's sensitivity.

"The main one is that everyone was worried about some kind of follow-up attack (after 9/11). But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."

Yes, it was all connected. They approved the torture to gather the false intelligence to push forward their agenda in Iraq. And it was done at a shadowy level, without disclosure to most top officials that these techniques were banned by the United States and prosecuted when used by foreign countries for decades. And nobody involved bothered to consult the past, either. Or at least, they didn't want to know. Ignorance was bliss.

And once and for all, we know that tactics used by the military at Gitmo were rapidly outsourced to Abu Ghraib. The work of Charles Graner and Lynndie England and the gang was not the work of "a few bad apples." It was policy, as was obvious at the time.

Nobody should buy the argument that, because Americans at SERE school don't have lasting physical or psychological damage from these techniques, they don't constitute torture. It should be obvious that going to school and being held captive with no end in sight are two different things, and the two experiences have different effects on the mental state.

Emptywheel notes that DoJ's guidelines on waterboarding differed from the CIA's, but the CIA followed the more expansive DoJ guidelines.

And if you believe that there were no objections, consider that all the briefings for Congress were classified (are they supposed to reveal classified information?), and then this:

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives.

The conservative response to all this inevitably devolves into they're not like you and me, those Arabs. I'd prefer to see them try that excuse in court. (They'll also probably whip out Dennis Blair's statement that the interrogation tactics yielded high-value information, as if the ends justify the means, and as if we should take Blair's claims at face value against mounds of evidence that the information was essentially useless). And this report implicates practically everyone at the highest levels, particularly Bush, Rumsfeld and Cheney.

John Conyers wants hearings. I think it will be virtually impossible to stop this from becoming a full-blown investigation. The reckoning is coming.

...in re: The Blair memo - the National Intelligence Director's conclusion was that torture does more harm than good, which I suspect you won't hear much when conservatives talk about it.

Update On The Campaign To Impeach Jay Bybee

Since my action on Saturday to spark a grassroots movement to impeach Bush Torture Judge Jay Bybee, there have been multiple developments. With respect to the resolution at the California Democratic Party convention for impeachment, which I think could advance the ball on this greatly, my grassroots petition has gained 3,177 signatures as of 1:45pm PT. And now, I'm proud to say that the Courage Campaign, California's version of MoveOn.org, has joined the fight, urging its California residents to support this resolution so that the whole state Democratic Party speaks with one voice about the need to remove the man who justified torture from office.

When President Barack Obama released the contents of President Bush's torture memos, America learned the full extent of the horror that was unleashed at Guanatanamo Bay on detainees. One of the memos was written by Jay Bybee in August 2002. It authorized the use of waterboarding, "cramped confinement", "walling" -- where a detainee's head is repeatedly pushed against a wall -- and even putting insects into a confined space with a detainee.

Jay Bybee is now a federal judge here in California, serving on the important Ninth Circuit Federal Court of Appeals, based in San Francisco. He has not been held accountable for the lawbreaking he committed and enabled.

The California grassroots are determined to change that. Los Angeles Democratic activists John Heaner, Agi Kessler and Richard Mathews have sponsored a resolution calling on the House of Representatives to begin impeachment proceedings against Jay Bybee.

Please join the L.A. County Democratic Party, Wellstone Democratic Renewal Club, Progressive Democrats of Los Angeles, and the Crooks and Liars blog by signing your name in support of this resolution. DEADLINE: Friday 9 AM.

More groups have joined the cause. Progressive Democrats of America has a tool to ask your member of Congress to initiate impeachment proceedings. The Center for Constitutional Rights are also calling for impeachment. And Jerrold Nadler, a senior Democrat on the House Judiciary Committee, has done the same.

Rep. Jerry Nadler, a senior Democrat on the House Judiciary Committee, called Monday for the impeachment of federal judge Jay Bybee, one of the principal authors of the torture memos released last week by the Obama administration.

"He ought to be impeached," Nadler said in an interview with the Huffington Post. "It was not an honest legal memo. It was an instruction manual on how to break the law."

Nadler is also calling for a special prosecutor to investigate Bybee and the other architects of torture. But I want to focus on building this movement for impeachment, because we need to start with something tangible as a means to growing this coalition. The case should be more than clear that someone with the appalling judgment to sign their name to a justification of torture simply shouldn't be sitting in judgment of other Americans. Ian Milhiser makes the legal case here:

OLC attorneys are not like other Executive Branch officials because their job is not to advance the President’s agenda or to defend the government’s actions. Rather, the purpose of OLC is to give neutral, disinterested opinions about what the law does or does not require. In this sense, the relationship between an OLC attorney and the President is more like that between a judge and a litigant than it is like that between an attorney and a client.

So Bybee’s memos instructing Executive Branch members that they could exploit a captive’s fear of stinging incects by locking him in a coffin with bugs, or nearly drown that captive, or deprive him of sleep for 11 days at a time, were not simply a lawyer offering incompetent advice on how his client could comply with the law. Rather, these memos were a total abdication of his unique role as an OLC attorney—to tell the President “no” when the law clearly and unambiguously says that what the President wants to do is illegal [...]

The Federal Torture Statute prohibits U.S. officials outside of the United States from inflicting “the threat of imminent death” on another person within his custody. Yet Bybee specifically advised the Bush Administration that they could waterboard detainees; an act which, by definintion, is intended to cause its victim to believe that they are in imminent danger of death by drowning. In other words, it is very unlikely that Bybee was actually providing legal advice to the Bush Administration—if he was, that he should be disbarred for sheer incompetence—and far more likely that he was simply seeking to apply the patina of legitimacy which an OLC opinion provides to the Adminstration’s pre-selected policies. He was far more an accomplice than an advisor.

Those Bush apologists cannot defend the indefensible. Bybee hid the truth during his confirmation hearings and should be compelled to answer for his role in perpetrating war crimes.

I believe the best way to start this is to urge the California Democratic Party to follow the lead of its branch in Los Angeles County, and resolve to impeach Jay Bybee. You can sign my petition to call on the CDP to support the resolution. And you can let the leadership of the California Democratic Party know personally your thoughts on this issue.

Sacramento Office
(916) 442-5707 phone
(916) 442-5715 fax

Los Angeles Office
(310) 407-0980 phone
(310) 407-0981 fax

email contact form

Please get involved in this growing movement. Thanks.

UPDATE: People for the American Way has just jumped aboard. From their email;

Yesterday the New York Times published an editorial calling for the impeachment of U.S. Court of Appeals Judge Jay Bybee, for his role in trying to bend the law to justify the Bush administration's torture policies when he headed the Justice Department's Office of Legal Counsel. Of the memos written by Bybee, the editorial states, "These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution."

We agree.

Please speak out and urge Congress to bring impeachment charges against Jay Bybee.

UPDATE II: The Center For American Progress, a think tank, has through its American Progress Action Fund called on Congress to impeach Jay Bybee. This coalition continues to grow. And Rep. Linda Sanchez, a California Democrat and senior member of the House Judiciary Committee, released this statement:

During my time as Chairwoman of the Commercial and Administrative Law Judiciary subcommittee, I made it clear that no one is above the law and Congress should hold accountable public servants who dismiss that. Americans spoke loud and clear in November: they were fed up with the Bush administration's disregard of the law.

Bybee twisted legal reasoning to desecrate basic fundamentals of our country, and I am not comfortable with the fact that he will be on the federal bench for a lifetime appointment. While I am pleased that the Obama Administration is fulfilling pledges of transparency, I feel that if we fail to act on these detestable facts, we are sending the wrong message.

If you're not comfortable with his lifetime appointment, Rep. Sanchez, you have options. Impeach.

Torture Judge Lawyers Up

Jay Bybee seems to understand that the President is not the nation's chief prosecutor, and the release of the torture memos leaves him legally exposed. So he's done some hiring.

The Obama Administration assured CIA employees Thursday that they would not be prosecuted, but the White House has offered no cover to Bybee or other government lawyers.

So for now, Bybee is on his own. The good news, however, he’s got a nationally recognized lawyer on his side, Latham & Watkins’s Maureen Mahoney, who’s handling the case pro bono. In an e-mail Thursday, Mahoney said Bybee has recused himself from Latham cases, but offered no further comment on his case.

There are actually about a dozen cases that could fall under the 9th Circuit's purview, including a case against Bybee's former subordinate John Yoo, that Bybee has had to recuse himself from. So in addition to being morally unfit for office, Bybeecan barely fulfill the duties, he's so ethically compromised.

As Digby notes, Barack Obama actually doesn't hold the key to whether or not the architects of torture get prosecuted. That falls under the Justice Department, and all Eric Holder has said is that they'll not seek prosecution against those who followed OLC guidelines. And if they want to take it out of politics, all they have to do is appoint a special prosecutor. The nation's fabric didn't fall asunder when Scooter Libby was convicted. We can handle it.

And Russ Feingold agrees:

"I understand that the president believes that the people who actually administered these tactics should be immune. I'm not sure about that. I understand that they have a greater argument than those who created the policies. But those who created these legal theories, knowing full well that there was not a reasonable argument, I'm not so sure they shouldn't be accountable. I don't see how we as a country say oh fine we knew this was against international law, we knew it was against our own laws, and these people can come up with any phony legal opinion they want. I've read these opinions because I'm on the intelligence committee and had access to them much earlier than the public. These arguments are bogus.."

I have a petition to call on the California Democratic Party to support the resolution of impeachment for Jay Bybee. We're up to 2,824 signatures. Please add your name if you haven't already. And if you're in California, give a call to the CDP offices and let them know you'd like to see them support this resolution.

Sacramento Office
(916) 442-5707 phone
(916) 442-5715 fax

Los Angeles Office
(310) 407-0980 phone
(310) 407-0981 fax

email contact form

"Congress should impeach him..."

The New York Times today called for the impeachment of Jay Bybee.

In one of the more nauseating passages, Jay Bybee, then an assistant attorney general and now a federal judge, wrote admiringly about a contraption for waterboarding that would lurch a prisoner upright if he stopped breathing while water was poured over his face. He praised the Central Intelligence Agency for having doctors ready to perform an emergency tracheotomy if necessary.

These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values [...]

At least Mr. Obama is not following Mr. Bush’s example of showy trials for the small fry — like Lynndie England of Abu Ghraib notoriety. But he has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution.

That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.

These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.

I'm not sure there can even be much argument about this. Jay Bybee's continued presence on the federal bench constitutes a moral outrage.

My petition to the California Democratic Party to pass a resolution of impeachment has as of 9am PT 684 signatures. Please sign it if you haven't already. We're going to have a lot more actions around this as the week progresses.

Yes We Can Impeach Jay Bybee

As we read with growing horror the most recent torture memos, knowing that there are more revelations to come, I think a lot of us are asking the question that mcjoan asked yesterday. "Now what?" How can we address this moral rot that continues to eat away at our legitimacy? What can be done? Mcjoan offers a couple suggestions.

The process by which our government came not only to torture, but through torturous logic try to convince themselves that it was legal is not just the product of evil. It's the product of excessive, unchecked power that has proven far too easy to seize, to hold, and to exercise.

And we can't allow that to happen again.

That's why, at the very least, there must be investigations. Whether through the special prosecutor that the ACLU has called for, or Senator Leahy's proposal for a commission of inquiry, America has to know how this happened, gruesome step by gruesome step. There is no other way to prevent it from happening again.

Mcjoan is right that our corroded, accountability-free zone in Washington will require an incredible amount of effort just to bring us to these steps. We need to counter the establishment pressure to move away from this evil with our own pressure, to support the rule of law, to recognize that justice delayed is justice denied, and that a failure to hold accountable these acts will result in them returning, in spades, in the future. Without this accounting, in a very real sense our democracy dies.

And there is an actual mechanism, a way to leverage grassroots anger and push the elected officials who can make these decisions, at least in one case. We can prove the desire for accountability in the country and take a systematic approach to restore democracy and the rule of law. And it starts with Jay Bybee.

As many people noted yesterday, Jay Bybee, the former head of the Office of Legal Counsel whose name appears as the author of the August 1, 2002 memo justifying and authorizing clear acts of torture by the CIA (some argue that John Yoo wrote the memo, but Bybee signed it), now works as a federal judge on the 9th Circuit Court of Appeals in San Francisco, with a lifetime appointment. He sits in judgment when we have clear evidence that his judgment is fractured. In just this particular memo, he agreed that waterboarding "constitutes the imminent threat of death" and still allowed its use. He twisted the research of sleep deprivation experts to justify the torturous delivery of harm to prisoners through this technique. He found the rationales to explain away his own legal exposure and that of his superiors, while clearly understanding these techniques to be wrong when applied by other countries.

And that's just this memo. More are expected.

One focus of scrutiny could be the period from April to August of 2002, when C.I.A. officers interrogated Abu Zubaydah before the Justice Department gave its official written endorsement of the interrogation program. According to a Justice Department inspector general’s report, F.B.I. officials who watched some of the interrogation sessions in a Thailand safe house reported that the C.I.A. interrogators had used several harsh techniques.

The Justice Department is also expected make public an internal ethics report that officials say is highly critical of top Bush lawyers who drafted the interrogation memos, including Jay S. Bybee, John C. Yoo and Steven G. Bradbury. Legal experts said there is an outside chance that the report could include referrals to state bar associations, which have the power to reprimand or disbar their members.

Because Bybee holds a lifetime appointment conferred by the Senate (by a 74-19 vote), I would argue it is the requirement of the Congress to act and right this horrific wrong. Bybee was confirmed in March 2003, well before these memos came to light. This new information alone should be grounds for an impeachment and removal of Jay Bybee from the 9th Circuit Court.

Impeachment would require a majority vote in the House, and removal would need a 2/3 vote in the trial in the Senate. I agree with Jonathan Zasloff that there are likely 34 Republicans in the Senate willing to go on record as objectively pro-torture, and thus removal would be less likely to be successful. I also agree that the Congress should be compelled to do this anyway.

Regardless of the Obama Administration's decision on prosecution, then, impeachment hearings and a Senate trial for Bybee would signal a necessary reassertion of Congresional authority and would ensure at least some minimal accountability.

Alas, emphasis there should be on the "minimal." I would hope that the House would impeach, but Senate Republicans would clearly vote no to prevent removal.

I don't know how the politics work on this. The Beltway media will clearly spin this as the Democrats obsessed with the past and not concerned about the supposedly grave national security implications. On the other hand, Republicans would be forced to defend an incompetent, ethically-challenged judge.

But maybe, given how unclear the politics are, it might be best to do, you know, the right thing. John Conyers should start scheduling preliminary hearings right away.

As it happens, the California Democratic Party can speak with one voice about this next week. Grassroots activists submitted a resolution to be decided at next week's convention in Sacramento that would call for the impeachment of Jay Bybee from the 9th Circuit. This resolution has already been accepted, UNANIMOUSLY, by the Los Angeles County Democratic Party. It can pass at the state level.

Resolutions are somewhat toothless unless used properly AFTER the fact. In the resolution (which I'll put below), it is stipulated that "a copy of this resolution with its original authorization be sent to the Office of the Speaker of the United States House of Representatives, the Chair of the House Judiciary Committee, and the Majority Leader of the United States Senate, and that copies of the signed resolution be sent to each member of the California delegation to the United States Senate and House of Representatives." California members of the HJC include Zoe Lofgren, Maxine Waters, Howard Berman, Brad Sherman, Adam Schiff and Linda Sanchez. The last five, at least, have part or all of LA County in their districts, and could be told RIGHT NOW that their local party has resolved unanimously to impeach Bybee. Should the entire state party agree, all the California members, including the Speaker of the House, and the two Senators (both of whom voted against confirming Bybee) can be told the same. And resolutions like this could spring up all over the country, increasing pressure from the bottom up for the Congress to act.

It starts next week in Sacramento. The Resolutions Committee meeting will be held at 3:00 on Friday, April 24, at the Sacramento Convention Center, 1400 J St., Sacramento, CA. If you're in the area or if you are a delegate, you can come to the meeting and advocate for the resolution. But the decision will likely be made beforehand. Only a few resolutions get out of committee and to the floor of the convention, and the others are tabled, or combined, or referred to a separate committee. We CANNOT let this happen. The ledership of the California Democratic Party needs to hear from constituents on this issue.

Sacramento Office
(916) 442-5707 phone
(916) 442-5715 fax

Los Angeles Office
(310) 407-0980 phone
(310) 407-0981 fax

email contact form

I've also created a petition at Petition Online urging the CDP to pass this.

Petition

We have an opportunity to use the party apparatus to push for accountability and send it up to leaders in Washington. I urge everyone to get on board with this. Thanks.


RESOLUTION TO IMPEACH JUDGE JAY BYBEE
Passed Unanimously by LACDP, 4/14/09
Whereas, the 1st Amendment to the United States Constitution guarantees the people a right to petition the government for a redress of grievances; and,

Whereas the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment, the supreme law of the land under Article VI of our Constitution, requires the prosecution of those who authorize torture, waterboarding is torture, and both former President George W. Bush and former Vice President Richard B. Cheney have admitted to authorizing waterboarding; and,

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

Therefore be it resolved that the Los Angeles County Democratic Party urges that the United States House of Representatives begin impeachment proceedings against Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit, charging him with facilitating the authorization of torture while employed by the United States Department of Justice; and,

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

The Evidence Demands Prosecution

Adam Serwer compared the Bybee memo to the ICRC report and finds that the CIA interrogators most certainly overstepped the legal limits placed on them by the Bush Administration.

The Bybee memo also describes a procedure known as "walling." The detainee wears a thick collar, which the interrogator uses to throw him against a "flexible wall." This "false wall" is meant to be constructed in such a way that impact creates a loud sound. Bybee wrote, "The idea is to create a sound that will make the impact seem far worse than it is and will be far worse than any injury inflicted on an individual." In Bybee's description, the detainee's shoulder blades are meant to hit the wall, implying that the detainee's back is to the wall.

In practice though, the ICRC report indicates that Zubayda was slammed "directly against a hard concrete wall." Another detainee, Walid Bin Attash, said that he was not only slammed against the walls of his interrogation room but that he was led along the corridor by his collar and slammed against the wall as he went. Another detainee said his head was slammed against a pillar repeatedly. One of the other memos released yesterday, written in May 2005 by Steven G. Bradbury, who was then head of the OLC, indicates that "walling" could be used "20 or thirty times consecutively when the interrogator requires a more significant response to a question."

In fact, one of the Bradbury memos acknowledges the illegal use of waterboarding with more frequency than spelled out in the Bybee memo's guidelines.

The memos include what in effect are lengthy excerpts from the agency’s interrogation manual, laying out with precision how each method was to be used. Waterboarding, for example, involved strapping a prisoner to a gurney inclined at an angle of “10 to 15 degrees” and pouring water over a cloth covering his nose and mouth “from a height of approximately 6 to 18 inches” for no more than 40 seconds at a time.

But a footnote to a 2005 memo made it clear that the rules were not always followed. Waterboarding was used “with far greater frequency than initially indicated” and with “large volumes of water” rather than the small quantities in the rules, one memo says, citing a 2004 report by the C.I.A.’s inspector general.

That IG report will eventually come out, among other documents, like those from between the time Abu Zubaydah was captured and the Bybee memo signed off on the 10 harsh interrogation tactics. Zubaydah himself said "the real torturing" started only three months after his capture, which would be around June 2002 (the Bybee memo allowing such techniques wasn't written until August), and it would be good to see that clarified.

But we already have enough evidence, provided by the government and the Red Cross, to indict those interrogators who did not act according to OLC dictates:

Senior administration officials have made it clear to me: neither President Obama's statement nor Attorney General Holder's words were meant to foreclose the possibility of prosecuting CIA officers who did NOT act in good faith, or who did not act according to the guidelines spelled out by the OLC.

As for acting in bad faith, how about those who demanded more information from Abu Zubaydah, when he had no more to tell and was clearly under mental strain?

The first use of waterboarding and other rough treatment against a prisoner from Al Qaeda was ordered by senior Central Intelligence Agency officials despite the belief of interrogators that the prisoner had already told them all he knew, according to former intelligence officials and a footnote in a newly released legal memorandum.

The escalation to especially brutal interrogation tactics against the prisoner, Abu Zubaydah, including confining him in boxes and slamming him against the wall, was ordered by officials at C.I.A. headquarters based on a highly inflated assessment of his importance, interviews and a review of newly released documents show.

Abu Zubaydah had provided much valuable information under less severe treatment, and the harsher handling produced no breakthroughs, according to one former intelligence official with direct knowledge of the case. Instead, watching his torment caused great distress to his captors, the official said.

Even for those who believed that brutal treatment could produce results, the official said, “seeing these depths of human misery and degradation has a traumatic effect." [...]

Quoting a 2004 report on the interrogation program by the C.I.A. inspector general, the footnote says that “although the on-scene interrogation team judged Zubaydah to be compliant, elements within C.I.A. headquarters still believed he was withholding information.”

The debate over the significance of Abu Zubaydah’s role in Al Qaeda and of what he told interrogators dates back almost to his capture, and has been described by Ron Suskind in his 2006 book, “The One Percent Doctrine,” a 2006 article in The New York Times and a March 29 article in The Washington Post asserting that his disclosures foiled no plots. (His real name is Zein al-Abideen Mohamed Hussein.)

This is to say nothing of the architects and superiors who designed, directed and authorized torture. But Attorney General Holder needs to be as good as his word here. The evidence exists to bring interrogators to trial. And the evidence certainly exists to bring to trial the top CIA personnel who demanded to wring Zubaydah out like an old sponge, ignoring the advice on the ground and acting in bad faith. I'd extend to these 4 ex-CIA chiefs who tried to illegally squash this information from ever being made public, George Tenet specifically, because this happened on his watch.

I'm sure someone at the Justice Department could convince a grand jury using only these documents. Prosecute.

Knowingly Acted In Violation Of The Law

I must agree that this is perhaps the lowest of the low when it comes to the torture memos, noting that we have condemned human rights abuses for 225 years that are completely similar to the ones authorized in the documents.



This puts into perspective the plain fact that these people knew what they were doing was illegal, which is always the nagging problem with prosecution in cases of this type.

I don't think Obama wants any part of such a prosecution, though I agree that he left open the door for the officials who condoned, directed and authorized this to be held accountable. Frankly, it will take a larger movement than we currently have for any pressure to be successful. We have to make the Administration appoint a special prosecutor.

Every Day A Torture Memo

Now that I've had some time to marinate in these depraved memos justifying and finding legal rationalizations for torture, I am convinced that the members of the Bush Administration who directed and authorized all this just willed themselves to believe they were doing the righteous and just thing. Sure, they knew enough to find some thin strand of legal reasoning to cover their naked bodies, but that was seen by them as a brave and forthright act. I don't see another way to live with approving Room 101 techniques like putting someone in a box with a bug unless you've convinced yourself of your own worthiness. The memos also produce a fact pattern of deliberate lies by the CIA to put their proposed torture of Abu Zubaydah in the best possible light (claiming he was of sound mental health when contemporaneous reports term him a basket case, for example). Combine that with typical Republican victimhood status, and you have the squealing pigs in the media today despairing about the release of these documents.

Two of the rogue's gallery, Michael Hayden and Michael Mukasey, argue in the Wall Street Journal that the President "tied his own hand on terror" due to the release. Here's a choice quote from these moral lepers.

Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption. It will also incur the utter contempt of our enemies. Somehow, it seems unlikely that the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists even to help elicit intelligence that could save the lives of its citizens.

We're always supposed to remember that we simply had to violate laws and shrink to the level of our enemies because that's how they operate, which is certainly telling on behalf of the cretins defending themselves in this. But the contempt of our enemies was never in question; it's the contempt of our allies, of indeed the entire world, which is only exacerbated by the defense of these actions, especially considering that they have for the time being been put outside the criminal justice system and above the law. It's not the "publicizing of the techniques," as this unnamed coward given sanction by useful idiot Mike Allen to rant today, that weakens national security, it's the constant defense of them, the daily shame that there are powerful people in the US government convinced that drowning people is a necessary activity that "can never be used again" - as if that's a bad thing.

In this sense, Richard Armitage is an anomaly - someone who after the fact would be reflective enough to consider the moral issues involved. The others have brainwashed themselves into believing not just the legality of this monstrousness, but the essential nature of it all. And because they continue to run out in the media and talk about the importance of being torturers, and never face a consequence, they harm national security with each passing moment.

And so do those who refuse to hold them to account. I agree that the largely unredacted release is a praiseworthy act by the President. The push to "move forward" and offer no accountability for violations of domestic law and international convention is a huge mistake - one compounded every day by the continued issuing of "torture memos" in newspapers and on cable TV from the Bush Administration weasels who aren't satisfied with just getting away with the crime, but feel the need to glorify it. This is a Justice Department decision, and they ought to appoint a special prosecutor, taking it out of the political realm. Believers in the rule of law should be screaming for that. Because every day that passes, another torture memo puts distance between us and the world.

As for the impeachment of Jay Bybee, who sits on the 9th Circuit Court of Appeals in San Francisco and spends his days officially passing judgment when his judgment is on display in the torture memos for all to see, I know of a movement upon which we can all latch. I have to confirm it, but please stay tuned.

Obama's Decision Point, Explained

Marc Ambinder reports that the only redactions in the memos will be of specific names of CIA officers involved in the interrogation. As these are OLC memos, I'm struggling to understand why specific CIA officers would be identified in them, but we won't know their names. And they will not be prosecuted for their actions.

I might as well post the entire Presidential statement on the release of the memos.

The Department of Justice will today release certain memos issued by the Office of Legal Counsel between 2002 and 2005 as part of an ongoing court case. These memos speak to techniques that were used in the interrogation of terrorism suspects during that period, and their release is required by the rule of law.

My judgment on the content of these memos is a matter of record. In one of my very first acts as President, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer. Enlisting our values in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past.

But that is not what compelled the release of these legal documents today. While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program - and some of the practices - associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

Going forward, it is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security. This is an extraordinarily important responsibility of the presidency, and it is one that I will carry out assertively irrespective of any political concern. Consequently, the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.

Long story short - the release of the memos is quite an important step. The focus should never be on low-level functionaries who carried out these acts, but those higher up the chain who directed and authorized them. I didn't want to see a "few bad apples" roundup of the Lynndie England's of the world and then a washing of the hands of the whole enterprise. Of course, the President says very strongly that "nothing will be gained by spending our time and energy laying blame for the past." Which the Broderist apologists will just love, and which we knew would be his decision anyway.

It's a mistake, in my view. But the release of virtually unredacted evidence of our shameful past is also important and should not be overlooked.

Obama's Decision Point Made

I was going to update the last post, but this is enough information to warrant a new one. The New York Times reports that the President will release the torture memos.

After a tense internal debate, the Obama administration this afternoon will make public a number of detailed memos describing the harsh interrogation techniques used by the Central Intelligence Agency against al Qaeda suspects in secret overseas prisons.

The interrogation methods were among the Bush administration’s most closely guarded secrets, and today’s release will be the most comprehensive public accounting to date of the interrogation program that some senior Obama administration officials have said used illegal torture.

This is great, but there isn't enough information here to explain whether key elements of the memos would be redacted. The Wall Street Journal says:

WASHINGTON -- The Obama administration is expected to release some operational details of a Central Intelligence Agency interrogation program and its legal rationale, while seeking to keep secret the names of detainees and the way techniques were applied to particular prisoners, two officials familiar with the matter said Wednesday.

An announcement is expected Thursday on the release of memorandums in which Department of Justice lawyers gave legal guidance on CIA interrogations. During a fierce debate, CIA officials have argued for keeping sensitive information secret, while Attorney General Eric Holder and other Obama administration lawyers have favored a full release.

Administration lawyers on Wednesday were still deliberating what portions of three memos would be released. The two officials said the administration plans to propose redacting parts of the memos. In addition to the prisoner names, certain operational details of interrogations are expected to stay secret, they said.

As is typical for Obama, he split the difference in the debate and went right down the middle. He will release the memos with some operational details, but will redact others as well as "the way techniques were applied to particular prisoners."

This is kind of silly. We have a Red Cross report detailing how these techniques were applied to particular prisoners. And the operational details in the memos do not describe intelligence operations, but what the OLC considered legal for use on prisoners. The overall effect would be to shield the framers of these opinions and their superiors from the actions themselves.

We'll have to wait and see just what is redacted. But this is basically a split-the-difference approach.

...Jeremy Scahill:

The ACLU shot back at the report. Jameel Jaffer, Director of the ACLU National Security Project, said:

“The new Justice Department should turn over unredacted versions of these memos, not blacked out versions that cover up critical information. The information in these memos is vital to the historical record and to informing the public about what actions were carried out in its name. The release of the memos is also crucial to holding officials accountable for authorizing torture. Withholding this information would be completely inconsistent with the Obama administration’s promise of transparency and its commitment to turn the page on the abuses of the last eight years.”

If the administration attempts to redact the memos instead of handing them over to the ACLU unredacted, it will reportedly need a judge’s approval.

...Andrea Mitchell had former CIA Director and NSA head Michael Hayden (who, shockingly, is now with something called "The Chertoff Group") on, and he basically said that the American people don't have the right to know what their government does in their name, and thus the memos shouldn't be released at all. Then, on the NSA "overcollection" case, he maintained that "the NSA follows the law" and just like journalists, they can't be right 100% of the time and they do the best they can.

Just so you know what a defense of evil sounds like. The interview was amazing.

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.