It's Not Like There Would Be Anything Noteworthy In Bill Clinton's Email

Well here we go again.

WASHINGTON — The National Security Agency is facing renewed scrutiny over the extent of its domestic surveillance program, with critics in Congress saying its recent intercepts of the private telephone calls and e-mail messages of Americans are broader than previously acknowledged, current and former officials said.

The agency’s monitoring of domestic e-mail messages, in particular, has posed longstanding legal and logistical difficulties, the officials said.

Since April, when it was disclosed that the intercepts of some private communications of Americans went beyond legal limits in late 2008 and early 2009, several Congressional committees have been investigating. Those inquiries have led to concerns in Congress about the agency’s ability to collect and read domestic e-mail messages of Americans on a widespread basis, officials said. Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation.

As Rush Holt, one of the few in Congress who seems to know what he's talking about with this program, “Some actions are so flagrant that they can’t be accidental." In one instance, the NSA accessed Bill Clinton's email:

(An analyst) said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton.

I'm sure that investigation was completely stringent. And I'm sure that "ban" on explicitly singling out individuals was strictly enforced. Because why would anyone want to know what Bill Clinton's doing?

Don't B.S. us with the fig leaf of "inadvertent overcollection." This happens virtually the same way every time.

Every time new revelations of illegal government spying arise, the same exact pattern repeats itself: (1) euphemisms are invented to obscure its illegality ("overcollection"; "circumvented legal guidelines"; "overstepped its authority"; "improperly obtained"); (2) assurances are issued that it was all strictly unintentional and caused by innocent procedural errors that are now being fixed; (3) the very same members of Congress who abdicate their oversight responsibilities and endlessly endorse expanded surveillance powers in the face of warnings of inevitable abuses (Jay Rockefeller, Dianne Feinstein, "Kit" Bond, Jane Harman) righteously announce how "troubled" they are and vow to hold hearings and take steps to end the abuses, none of which ever materialize; (4) nobody is ever held accountable in any way and no new oversight mechanisms are implemented; (5) Congress endorses new, expanded domestic surveillance powers; and then: (6) new revelations of illegal government spying emerge and the process repeats itself, beginning with step (1).

And if you thought that the Congress or the Justice Department could at least revisit step (5) once step (1) re-occurs over and over again, Attorney General Eric Holder helpfully informs you that telecom immunity and the FISA Amendments Act is settled law, unable to be tweaked or fixed or even investigated. Holder wouldn't even stand by his statement that violating FISA breaks the law - he can't now, because as the Attorney General he would be obligated to act on his words.

FEINGOLD: On another topic, I wrote to the president on Monday about my continued concern that the administration has not formally withdrawn certain legal opinions, including the January 2006 white paper that provided the justification for the Bush administration's warrantless wiretapping program. At the letter was prompted in part by a recent speech that I'm sure you're aware of by the director of national intelligence in which he asserted that the program was not illegal, but he later clarified that.

In a speech to the American Constitutional Society in June 2008, you, sir, set the following. "I never thought that I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens."

And the president himself also several times as a senator and during the campaign said the program was illegal. Now that you are the attorney general, is there any doubt in your mind that the warrantless wiretapping program was illegal?

HOLDER: Well, I think that the warrantless wiretapping program as it existed at that point was certainly unwise in that it was put together without the approval of Congress and as a result did not have all the protections, all the strength that it might have had behind it, as -- as I think it now exists with regard to having had congressional approval of it. So I think that the concerns that I expressed in that speech no longer exist because of the action that Congress has taken in regard...

FEINGOLD: But I asked you, Mr. Attorney General, not whether it was unwise, but whether you consider it to be an illegal, because that's certainly the implication of what you said in the quote I read and the explicit statement of the man who is now president of the United States.

HOLDER: Yes, well what I was saying in that speech was that I thought the action that the administration had taken was inconsistent with the dictates of -- of FISA, and I think I used the word "contravention," and as a result I thought that the policy was an unwise one. And I think that the concerns that I expressed then have really been remedied by the fact that Congress has now authorized the program.

FEINGOLD: But did you think it was illegal?

HOLDER: Well, I thought that, as I said, it was inconsistent with -- with the FISA statute and unwise as a matter of policy.

And that sound you hear is the soul of Eric Holder breaking.

The rule of law was nice to have around for a while. But it's completely broken and it's not coming back.

QED

A lot of people have got to this, but yes, empathy is not some alien notion but a common way of thinking about the role of life experience and how it relates, even to the law, and conservative judges like Sam Alito and Sandra Day O'Connor have invoked life experience and empathy in their judging, including race and gender, and white male conservatives consider themselves perfectly objective automatons uncorrupted by any perspective whatsoever, except when they don't like the law they have to apply under that standard, and then they go on and on about how unfair it all is to white people. This is because they view "the law" as anything reaching their desired outcome, intellectual honesty be damned. It's stupid. You can even play the home game on this.

Not much more to say than that.

Loss Of Honor

The only good news out of this Marc Ambinder post is that the White House reads a lot of Glenn Greenwald. That's of course fine, but the main point here is that the White House will, at some point, endorse and implement a policy of indefinite detention. We don't know how many people will be held under this policy, but basically the idea here is to allow the President to determine, at essentially his discretion, although there may be certain safeguards, that a prisoner cannot be either charged with a crime or released from prison, and must be kept in a holding cell "until the terrorists disappear", as Newt Gingrich put it today. This prisoner will have not been proven to have committed a crime, but will simply be thought likely to commit crimes against the United States in the future, based not on actual proof (otherwise they could be charged) but the supposition of a few in the executive branch. Greenwald lays this all out here.

This really and truly makes me sick to my stomach. I recognize that the Bush Administration picked up random people off a battlefield and made little or no effort to corroborate the hearsay that brought them into custody in the first place. What evidence exists probably has been gained through coercion or torture. And so American law, or even the diminished American law in the military commissions process, cannot handle such evidence. That's the theory put forward by the White House, anyway. And yet plenty of terrorism suspects, in cases with similar challenges, have been tried and convicted in American courts, not only in recent history but for hundreds of years.

This is an unprecedented expansion of the power of the executive to detain enemies he designates essentially forever. It's also completely unjustified in a country that pretends to follow a Constitution based on the preservation of liberty.

There's more here and here, and I don't think I could add much. I'm just completely disgusted by the prospect of indefinite preventive detention.

At least we have some American lawmakers left who understand the magnitude of this decision.

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional. While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not [...]

I appreciate your efforts to reach out to Congress on this important issue. In that spirit, I intend to hold a hearing in the Constitution Subcommittee of the Senate Judiciary Committee in June and ask that you make a top official or officials from the Department of Justice available to testify. I recognize that your plans are not yet fully formed, but it is important to begin this
discussion immediately, before you reach a final decision. I will be sending formal invitations in the coming weeks and look forward to hearing the testimony of your administration.

Sadly, Feingold appears to be alone in this opinion. But one Senator can do a lot, especially with help from the outside. It's absolutely crucial that we provide him all the muscle he needs to push the Administration back on this horrific potential decision.

The Military Commissions Would Be The Problem

They've hinted at this for weeks, and obviously the civil liberties and human rights communities didn't offer enough pushback, so the President is going ahead with modified military commissions to try suspected terrorists, the same commissions he decried as a candidate.

The Obama administration will announce plans Friday to revive the Bush-era military commission system for prosecuting accused terrorists, current and former officials said, reversing a presidential campaign pledge to rely instead on federal courts and the traditional military justice system [...]

White House officials insisted that Obama was not overturning a campaign vow. The president "never promised to abolish" military commissions, an administration official said. However, during his campaign Obama repeatedly called for change.

"It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice," Obama said in one such statement on the subject last August.

The administration still intends to prosecute some Guantanamo Bay detainees in federal courts, as Obama had pledged. But officials have concluded that a small number of detainees can be tried only in the military commissions, said a U.S. official familiar with the changes, speaking on condition of anonymity in advance of Friday's announcement [...]

The administration contends its revisions would improve the system by banning the use of any evidence obtained through coercion and will restrict the use of hearsay evidence.

The rule changes will also give detainees more latitude in choosing lawyers to represent them, according to the U.S. official, who described them on condition of anonymity because of Friday's announcement.

But those changes are widely viewed as cosmetic by critics both in and out of government.

No military judge has allowed evidence obtained through coercion or torture anyway. And these few safeguards did not form the basis of objections from civil liberties groups, as Glennzilla notes today. The problem was taking these cases out of the standard criminal justice system or the Uniform Code of Military Justice and creating a new system outside standard law that during the Bush Administration was correctly seen as nothing but a kangaroo court. If you argue that we need military commissions, you basically argue that the legal system is somehow insufficient to try terror suspects, despite the fact that prosecutors have obtained dozens of convictions for those suspected of terrorism in the past. It creates an authoritarian system that the President can determine to direct at certain suspects but not others. It weakens our legal system overall, by suggesting that it cannot properly try certain sensitive cases. And it would call into question any convictions gained through the process because of their existence outside the normal legal channels, seemingly for arbitrary reasons. Therefore it is not the specifics of the commissions that constitute the problem, but the very fact of the commissions themselves.

If we can use a court-martial system, we should. The message to the Islamic world would be much more powerful if we use the same system to try suspects of terrorism that we use to try our own members of the military. Obama's own deputy Solicitor General, Neal Katyal, explains:

In stating that the rules governing courts martial do not apply to commissions, the administration has placed itself in stark contrast to other administrations. Even in the midst of the Vietnam war, with thousands of dead, President Nixon's Defense Department examined the commissions option and concluded that "the specific protections of the Bill of Rights, unless made inapplicable to military trials by the Constitution itself, have been held applicable to courts-martial. Both logic and precedent indicate that a lesser standard for military commissions would not be constitutionally permissible."

Sen. Kerry's views closely resemble those of President Nixon's Defense Department, whereas (as I have said elsewhere in Slate) President Bush's closely resemble those of King George III. . . .

The danger with these commissions comes not only in their threat to our Constitution, and our standing in the world as a beacon of fairness, but also in their challenge to the perception of military justice. Our nation—whomever the next president may turn out to be—should admit it made a mistake and return to using our powerful and fair system of courts martial—a system that would generate swifter convictions of terrorists. As our nation's great Chief Justice John Marshall put it in 1803, ours is a "government of laws, and not of men."

You either believe in American law or you don't. The President has made his decision.

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.

MoveOn: Impeach Jay Bybee

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

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

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

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

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

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

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

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

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

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

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

Good Faith

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

White House Rejected On State Secrets

Russ Feingold released a rule of law report card today, judging the Administration's efforts in restoring core Constitutional principles about justice and executive power. Feingold gave Obama generally good marks, but saved his greatest ire for the Administration's continuing use of the state secrets privilege.

Recommendation (State Secrets): "The new administration should conduct a review of pending cases in which the state secrets privilege has been invoked to assess whether the invocation was proper. It should also support legislative efforts, such as the State Secrets Protection Act (S. 2533/H.R. 5607), to allow more meaningful judicial scrutiny when the privilege is invoked."

Action: The Obama administration has invoked the state secrets privilege in three cases in the first 100 days -- Al Haramain Islamic Foundation v. Obama, Mohammed v. Jeppesen Dataplan, and Jewel v. NSA.

In Al Haramain, the Obama administration reinvoked the privilege in a case originally filed against the Bush administration in which the Al Haramain foundation, whose American branch is based on Oregon, alleged that the Bush administration authorized warrantless wiretaps. In Mohammed v. Jeppesen Dataplan, five individuals once held at Guantanamo Bay prison are accusing Jeppesen Dataplan, a subsidiary of Boeing, of providing logistical support for their “extraordinary rendition” to a foreign country where they were allegedly tortured. In Jewel v. NSA, the Electronic Frontier Foundation is suing the National Security Agency on behalf of AT&T customers for alleged illegal wiretapping surveillance. After Congress granted retroactive immunity to the telecom companies that allegedly participated in the Bush administration’s warrantless wiretapping program, cases in which the government is the defendant are the only legal avenues remaining to potentially test the legality of that program.

Senator Feingold has joined Senators Patrick Leahy, Arlen Specter, Edward Kennedy and others in introducing the State Secrets Protection Act, a bill to provide guidance to federal courts considering cases in which the government has asserted the state secrets privilege. The Obama administration has yet to take a position on the legislation.

Attorney General Holder has indicated that a complete review of all cases in which the state secrets privilege was asserted by the Bush administration is under way and that he hopes to make the result of that review public. Only the glimmer of hope offered by that ongoing review saves the Obama administration from a failing grade on this recommendation.

Today, the 9th Circuit appellate court agreed with Feingold and dealt a rebuke to the efforts to circumvent the rule of law by putting executive power grabs, in this case the Bush Administration's extraordinary rendition program in the Jeppesen case, behind a state secrets firewall:

Today, in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security.

In rejecting this radical secrecy theory, the court emphasized how the Bush/Obama doctrine, if accepted, would essentially place the President above and beyond the rule of law.

The court wrote, "According to the government's theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands of the limits of the law." And this, basically, is where the "look forward but not backward" construction totally breaks down. The law requires scrutiny into official actions taken by the government and puts no limits on them for the sake of comity or bipartisanship. The law sees no Democrat or Republican, only the contours of the law. That was true when George W. Bush said that "In our country, when there's an allegation of abuse ... there will be a full investigation, and justice will be delivered," and that "War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, 'I was just following orders,'" and it's just as true today. The power of the state secrets privilege is the power to subvert the belief that no one is above the law by offering the executive branch a tool to block investigation by the other two branches. It is the tool of a cover-up and enables the rampant abuse and lawbreaking that can then be papered over.

The Obama DoJ appealed the ruling on Bagram detainees' habeas rights, and will probably appeal this ruling as well, and we will have to await the ruling of the Supreme Court before determining whether or not we have fully eliminated the most dangerous aspects of the state secrets privilege, or at least the passage of the State Secrets Protection Act by Feingold, America's Next Top Democrat Arlen Specter and the Congress. But as Glenn notes:

...in the meantime, the case will return to the District Court for a document-by-document assessment of what is and is not truly "secret" (and the court today held that a mere decision by the President to classify certain documents is insufficient; the court is required to exercise independent judgment as to whether secrecy is truly warranted). Finally, these 5 torture victims will have their day in court.

And hopefully, not just the victims but the perpetrators will have their day in court as well.

...I maintain that the efforts to get the White House to restore the rule of law will be aided by placing Dawn Johnsen as head of the Office of Legal Counsel, and those efforts got a major boost today when Richard Lugar announced his support. If Specter and Ben Nelson, who are opposed, vote for cloture, I think this ensures her passage.

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.

They're Smearing Dawn Johnsen

Sen. Specter is whacking off on the Senate floor about some bills of his on limiting executive power. And yet he refuses to move forward on confirming a Justice Department nominee who would be the leading critic inside the executive branch on executive power, and with the power to limit it besides.

President Barack Obama's nomination of an Indiana University law professor to head the Justice Department's Office of Legal Counsel is meeting stiff resistance in the Senate, stalled for a month by Republicans who say she's a polarizing figure because she aggressively criticized the Bush administration's legal rationale on torturing terrorism suspects and radical in her views on abortion rights.

Dawn Johnsen's nomination made it through the Senate Judiciary Committee on a party-line vote, but the Senate's Democratic leadership has yet to schedule a final floor vote on her confirmation.

"I think she's in real trouble," said Sen. George Voinovich, R-Ohio. "From what I'm picking up from consensus, she's got a problem." [...]

Senior Senate aides say there is no single senator holding up Johnsen's nomination. But they acknowledge that efforts to bring her up for a vote now would likely be blocked procedurally.

Johnsen and her supporters are trying to change that. She's met with Sen. Arlen Specter of Pennsylvania, the Senate Judiciary Committee's ranking Republican. Specter passed on voting for or against moving her nomination out of committee. He said Wednesday that he hasn't decided yet how he would vote if her nomination goes to the floor.

Sheldon Whitehouse, Dawn Johnsen's greatest defender, says he'll be ready if conservatives try to move on a filibuster. But it's people like Specter, claiming to be concerned about executive power while opposing the woman who would be his biggest ally in that fight, that kills me.

Christy Hardin Smith sums up the conservative smear job on Johnsen:

What's Cornyn's real beef -- and that of the GOP establishment? That Dawn supports the rule of law. That she takes the job and her responsibilities in it seriously, meaning that she isn't the sort of person who puts shortcuts and shading to further personal ambitions ahead of doing the right thing and following the written precedents.

In other words, unlike some people, Dawn isn't the kind of gal who can be bought off or shut up. And Cornyn no likey that. This is all about GOP CYA and the kabuki to cover it.

Why is OLC important? I'll let ACS' Peter Shane explain:

Perhaps the most important reason we have government lawyers is to “take care that the laws be faithfully executed” even when laws are ambiguous and especially when no one is looking. If the rule of law is to have any meaning, government lawyers playing an advisory function must take a relatively objective stance....It is critical that government lawyers remember that their “client” is the American people, and not the ephemeral roster of incumbent federal officer holders.

There it is in a nutshell: putting the public interest ahead of political kabuki. Hence the fear and stall tactics from Cornyn and company:

The pressure to kill the Johnsen nomination may become even stronger now that President Obama has released more OLC memos detailing the CIA’s abusive interrogation tactics last week.

Let's not let them get away with it. The stakes are too high.

I don't know that this is even about Johnsen. The GOP just wants a victory.

Christy has a list of Senators you can call about this. Please do so.

Holder Releases The Hulk

Liberals are likely to be upset about news that Eric Holder is dismissing the indictment of Ted Stevens, but I'd advise them to read Holder's statement.

"In connection with the post-trial litigation in United States v. Theodore F. Stevens, the Department of Justice has conducted a review of the case, including an examination of the extent of the disclosures provided to the defendant. After careful review, I have concluded that certain information should have been provided to the defense for use at trial. In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.

"The Department's Office of Professional Responsibility will conduct a thorough review of the prosecution of this matter. This does not mean or imply that any determination has been made about the conduct of those attorneys who handled the investigation and trial of this case.

"The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice. Under oftentimes trying conditions, the attorneys who serve in this Department live up to those principles on a daily basis. I am proud of them and of the work they do for the American people."

Christy Hardin Smith has more about the shoddy work from prosecutors in this case, which probably would have caused a reversal on appeal somewhere down the line. Prosecutors failed to turn over exculpatory information to the defense, which is simply inexcusable. Christy writes:

Using this case as an example of what will NOT be tolerated is as good a place to start as any for Holder.

It is beyond disgusting that a skeezeball like Ted Stevens can walk away from all the pocket-lining he did whilst in office because the prosecutors on the case were too craven to follow basic legal principles. But there you are. The vaunted DOJ has fallen to such a level, and it will take an enormous amount of work to lift it back up to where it ought to be.

Here's to much more internal review and reform to come at DOJ.

Whether you think attorneys bungled the case intentionally because Stevens was a Republican or not (the lead prosecutor was a career hire, so I don't agree; they just screwed up and should be fired, actually), it is distasteful to allow justice to be perverted in this way. Put it this way - Alberto Gonzales wouldn't dismiss this case if it involved a Democrat, and it would have been overturned in court, and they would look silly. Holder needs to exercise some equanimity in this regard - Don Siegelman's case deserves a look - but the rule of law is more important than an old coot in Alaska.

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

Just off the press from the New York Times:

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

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

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

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

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

The six officials in the inquiry are:

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

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

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

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

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

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

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

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

So do I.

Congress The Civil Libertarians Of Last Resort?

OK, what the f%&! is going on here? The Obama Administration has an empirically good team on civil liberties at the Justice Department. And yet in the last few days, DoJ lawyers have backed up President Bush's extreme use of state secrets privileges, Leon Panetta - in a generally solid hearing at the Senate Intelligence Committee - told the panel that some detainees were "too dangerous to prosecute" and may have to be held for a long time, and now Elena Kagan, nominated as Solicitor General, has agreed that "enemy combatants" can be detained without trial:

Harvard Law Dean Elena Kagan, President Obama's choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.

She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.

Now reading further, Kagan was apparently led by the nose by Huckleberry Graham on this one. And this isn't totally bad, but there's a significant amount of mission creep that can result. For example, with whom are we at war? When is that war considered over? What is the battlefield? For an Administration that is trying not to use the phrase "war on terror," their stated policies are not necessarily reflecting that. Not to mention the fact that the Supreme Court has ALREADY RULED in this matter and decided that "enemy combatants" as defined by the Bush Administration have habeas corpus rights. Simply put, we are not a nation of laws if we have a separate set of them for some people. The rules of criminal justice can easily apply to all, at the minimum by charging suspects with a crime and giving them a trial.

Perhaps the good that's coming of this is the pressure it is putting on Congress to act, and how they are actually meeting the challenge. Russ Feingold blasted the Administration for their decision to invoke the state secrets privilege, and he is asking for a classified briefing on the matter as well as pushing his own legislation that would limit how state secrets can be used. Similarly, Patrick Leahy is being very adamant about the need for investigating the crimes of the Bush Administration, even talking to the White House counsel about it:

Senate Judiciary Chairman Patrick Leahy and White House Chief Counsel Greg Craig discussed on Tuesday the Senator's proposal to set up a truth and reconciliation commission to investigate potential crimes of the Bush administration.

"I went over some of the parameters of it and they were well aware at the White House of what I'm talking about," Leahy told the Huffington Post. "And we just agreed to talk further."

The dialogue between the Vermont Democrat and the president's office is a new phase in a delicate process concerning how best to handle potential crimes in the previous White House. Leahy proposed an investigatory commission on Monday, after which the president -- speaking at his first news conference -- said he did not currently have an opinion on the plan. Obama went on to say that he would rather look forward than backward, but he promised to prosecute any crime -- whether committed was a former White House official or everyday citizen [...]

Leahy did add an important ripple to the story in the interview with the Huffington Post: Congress will likely proceed with investigations regardless of whether Obama is on board.

"Oh yeah," Leahy said when asked if he would go forward without Obama's endorsement. "I think the Senate and the Congress as whole has an oversight responsibility that has to be carried out here anyway. Now it is much easier with the cooperation of the administration. A lot of things with the subpoenas I issued the past few years, we got a lot of information but a lot of it was held back."

I am unhappy with some of the moves by the Administration on these issues thus far, but am heartened by Congress stepping up to perform its oversight functions.

....the House is introducing a companion bill on the state secrets privilege today, with Rep. Jerrold Nadler (D-NY), John Conyers (D-MI), Zoe Lofgren (D-CA), and Tom Petri (R-WI) signing on.

No Excuse For This

There is no excuse for the Obama Justice Department invoking the state secrets privilege to get a court case on extraordinary rendition thrown out. Men who were illegally kidnapped, flown to Guantanamo and tortured sued the government and the owner of the aircraft used in the rendition, and Obama's officials basically said that the whole matter was a secret and cannot be adjudicated. Here's Ben Wizner of the ACLU, who was one of the lawyers on the case:

We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court.

Greenwald:

What makes this particularly appalling and inexcusable is that Senate Democrats had long vehemently opposed the use of the "state secrets" privilege in exactly the way that the Bush administration used it in this case, even sponsoring legislation to limits its use and scope. Yet here is Obama, the very first chance he gets, invoking exactly this doctrine in its most expansive and abusive form to prevent torture victims even from having their day in court, on the ground that national security will be jeopardized if courts examine the Bush administration's rendition and torture programs -- even though (a) the rendition and torture programs have been written about extensively in the public record; (b) numerous other countries have investigated exactly these allegations; and (c) other countries have provided judicial forums in which these same victims could obtain relief.

I've been as vigorous a proponent as anyone for waiting to see what Obama does before reaching conclusions about his presidency, but this is a very real and substantial act, and it's hard to disagree with what ACLU Executive Director Anthony Romero said today:

"Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."

As Greenwald goes on to note, Obama has claimed to end this practice of rendition, and yet is invoking the state secrets privilege because revealing the scope of the program would degrade CIA operations - operations that he has said no longer exist. Those statements aren't compatible, and one can only conclude that rendition is continuing, perhaps in a kinder and gentler way. Or more to the point, the Administration doesn't want any consequences for the crimes of the past, reserving the right for future Presidents to absolve them of crimes in the future.

Now, it could be - probably not, but could be - that as Attorney General Holder is reviewing all state secrets claims, the Justice Department wanted to maintain consistency until a decision was made at the top. However, that doesn't square with the actual conversation in the courtroom:

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

“The change in administration has no bearing?” she asked.

“No, your honor,” he said once more. The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

Just to bring in some perspective, let's add to this what has been alleged to have happened to one of the five Brits suing the government in this case, Binyam Mohamed. The Telegraph UK reported over the weekend:

Material in a CIA dossier on Mr Mohamed that was blacked out by High Court judges contained details of how British intelligence officers supplied information to his captors and contributed questions while he was brutally tortured, The Sunday Telegraph has learned.

Intelligence sources have revealed that spy chiefs put pressure on Mr Miliband to do nothing that would leave serving MI6 officers open to prosecution, or to jeopardise relations with the CIA, which is passing them "top notch" information on British terrorist suspects from its own informers in Britain.

Mr Mohamed, 30, an Ethiopian, was granted refugee status in Britain in 1994. He was picked up in Pakistan in 2002 on suspicion of involvement in terrorism, rendered to Morocco and Afghanistan, tortured and then sent to Guantanamo Bay in 2004. All terror charges against him were dropped last year.

The 25 lines edited out of the court papers contained details of how Mr Mohamed's genitals were sliced with a scalpel and other torture methods so extreme that waterboarding, the controversial technique of simulated drowning, "is very far down the list of things they did," the official said.

Another source familiar with the case said: "British intelligence officers knew about the torture and didn't do anything about it. They supplied information to the Americans and the Moroccans. They supplied questions, they supplied photographs. There is evidence of all of that."

It was done in our name, using our tax dollars, and now this new Administration, which has spoken very specifically and on the record about the pernicious nature of the state secrets privilege, is now invoking it the same way George Bush had, to avoid accountability. Applying state secrets to get entire court cases thrown out is just the most extreme version of this. Russ Feingold has said:

When the executive branch invokes the state secrets privilege to shut down lawsuits, hides its programs behind secret OLC opinions, over-classifies information to avoid public disclosure, and interprets the Freedom of Information Act as an information withholding statute, it shuts down all of the means to detect and respond to its abuses of the rule of law – whether those abuses involve torture, domestic spying, or the firing of U.S. Attorneys for partisan gain.

Leon Panetta is on the record saying there will be no prosecutions for CIA officers who implemented the crimes of the Bush era. Last night, Obama responded to a question by the Huffington Post's Sam Stein about the need for a truth and reconciliation commission, just so that we would know the extent of the lawbreaking of the past eight years, by dodging the question, saying that if there were "clear instances of wrongdoing" prosecutions should occur, he would be more inclined to look forward and not backward. And we even have evidence that Obama is backsliding on the closure of Guantanamo:

President Obama assured relatives and victims of the Sept. 11, 2001, attacks and the bombing of the USS Cole that he is keeping an open mind about how to handle the approximately 245 detainees held at the U.S. military prison at Guantanamo Bay, according to participants in an hour-long meeting yesterday at the White House.

The president met with about 40 family members and victims, who hold different views on his decision to close the prison in Cuba within a year. The exchange, which was sometimes passionate but never acrimonious, left some who were deeply skeptical of the administration's decision to suspend military commissions at Guantanamo Bay satisfied that the president has not yet decided to abolish the current system of prosecuting suspected terrorists.

Obama told the group that he was only hitting the "pause button" when he sought the suspension of proceedings against 21 detainees, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks. And he assured the group that he wants the swift prosecution of those responsible for the terrorist attacks and their facilitators.

This is the rot that comes from a lack of accountability. In covering up someone else's crimes, you inevitably use their methods, which are crimes themselves. They maintain an architecture which can easily be pulled out to cover up your OWN crimes. And it violently damages the rule of law and the ability for Americans to believe in their government.

I'm sick about this.

Holder's Promise

Put me down in agreeing that this is an outright lie.

President Obama's choice to run the Justice Department has assured senior Republican senators that he won't prosecute intelligence officers or political appointees who were involved in the Bush administration's policy of "enhanced interrogations."

Sen. Christopher "Kit" Bond, a Republican from Missouri and the vice chairman of the Senate Select Committee on Intelligence, said in an interview with The Washington Times that he will support Eric H. Holder Jr.'s nomination for Attorney General because Mr. Holder assured him privately that Mr. Obama's Justice Department will not prosecute former Bush officials involved in the interrogations program.

Mr. Holder's promise apparently was key to moving his nomination forward. Today, the Senate Judiciary Committee voted 17-2 to favorably recommend Holder for the post. He is likely to be confirmed by the Senate soon.

I just don't believe that any lawyer would agree not to prosecute a client before knowing all the facts of the case. And while I could believe that a Democrat on Obama's "moving forward, not backward" team would do so, I'd then have to take the word of Kit Bond as true, which is never a good option. I'm basically with emptywheel on this.

That said, I suspect Kit Bond is spinning Holder's clear statements with regards to those who implemented Bush's policies into statements about those who crafted Bush's policies.

Note how Holder answered this question in written RFQs:

Mr. Holder indicated that he would not prosecute any intelligence officers who participated in the interrogation program and who had followed Justice Department guidance.

"Prosecutorial and investigative judgments must depend on the facts and no one is above the law, Mr. Holder wrote. But where it is clear that a government agent has acted in 'reasonable and good faith reliance on Justice Department legal opinions' authoritatively permitting his conduct, I would find it difficult to justify commencing a full blown criminal investigation, let alone a prosecution."

Holder gave written assurances about those who relied on John Yoo's crappy opinions. That's basically what Arlen Specter said Holder had said in assurances to other Republicans.

But now Kit Bond is out there saying Holder gave him assurances about not just "intelligence officers" (which is what he said in his written response) but "political appointees" and, later, "political leaders."

Now, maybe Holder really did say he wouldn't go after people like John Yoo and Dick Cheney and others who deliberately violated national and international law. But I think it just as likely (and more typical of Holder's legalistic style) that Kit Bond is talking out of his ass to pressure Holder to avoid looking into the actions of Bush and Cheney. Hell. Holder hasn't even been read into the illegal wiretapping program yet. It would be the easiest thing in the world for him to say, "Well, I had no idea that Bush deliberately violated Congress' law prohibiting any funds from being spent on TIA" if he were to pursue charges.

An aide to Holder is denying that any promise was made to Bond or any other Republican, and frankly, Holder's more trustworthy at this point. He should be asked the question personally, but my suspicion is that this is a means of pressure, to go along with the pressure of a lunatic DC establishment trying to absolve themselves of blame for war crimes.

...do read Glenn Greenwald on this as well. The fact that the establishment has about 200 different ways to punish the poor severely for any offense they commit but blush at the mere suggestion that one of their own should be held accountable for their crimes is perverse. We do not have a justice system in this country, if you want to be honest. We have a punishment/power system, and an inverse relationship between the two.

Great Except The Gray Areas

Obama is following through on his promises. He is closing the Guantanamo prison and restricting the interrogation tactics used by the CIA. Before we get to the details, on the top line this is great news.

President Barack Obama is ready to issue orders on Thursday to close Guantanamo prison and overhaul the treatment of terrorism suspects, in a swift move to restore a U.S. image hurt by charges of torture.

A draft executive order obtained by Reuters on Wednesday sets a one-year deadline to close the controversial U.S. military prison at Guantanamo Bay, Cuba, where foreign terrorism suspects have been detained for years without trial.

Obama, who was sworn in as president on Tuesday, is expected to issue the order on Guantanamo on Thursday. He will also ban abusive interrogations and order a review of detention policies for captured militants, said congressional aides and a White House official [...]

"It's exactly the kind of bold action that is necessary," said Elisa Massimino, executive director of the Human Rights First advocacy group. "Both the speed and the content will send a clear message to our own people and the rest of the world that what he said ... he meant." [...]

Another presidential order would ban CIA use of "enhanced" interrogation methods by making all U.S. agencies abide by the Army Field Manual, which bans techniques such as waterboarding, a form of simulated drowning the CIA says was used on three terrorism suspects.

Outgoing CIA chief Michael Hayden has defended the harsh techniques and called the Army manual too restrictive but says the agency would abide by limitations. The CIA declined comment on the reports.

Obama is also expected to order a review of all U.S. detention policies.

Obama is really setting a bad precedent of keeping campaign promises and abiding by the rule of law. It's like the oath of office reboot, setting the horrible precedent of acknowledging mistakes and seeking to rectify them. Who does this guy think he is?

Aides sent around the draft order on Guantanamo today, and I think my favorite part is "the individuals currently detained at Guantánamo have the constitutional privilege of
the writ of habeas corpus." 1300 years of Western law restored in one sentence.

The rest of the details look fairly good. They'll essentially either try or release detainees, although there's this gray area of "other disposition" which needs to be clarified. With people like Marty Lederman now telling the President what they can and cannot do, I'm hopeful that this won't turn into a loophole. But it won't be for lack of trying by those who want to demagogue the issue.

GRAHAM: I do believe we can close Gitmo, but what to do with them? Repatriate some back to other countries makes sense, if you can do it safely. Some of them will be tried for war crimes. And a third group will be held indefinitely because the sensitive nature of the evidence may not subject them to the normal criminal process, but if you let them go, we’ll be letting go someone who wants to go back to the fight. … So we’ve got three lanes we’ve got to deal with: Repatriation, trials, and indefinite detention.

Indefinite detention is inconsistent with the Constitution and international law, as well as the stated rights granted under habeas corpus. And it cannot be allowed as a "third way" here. I think that civil liberties groups understand this and will be vigilant in ensuring that detainees be only tried or released. I can warm to the idea that this process will take up to a year (especially given the state of the evidence, which is haphazard at best according to prosecutors), but there have to be bright lines. Here's Anthony Romero, putting it much more diplomatically than I would.

"This is the first ray of sunlight in what has been eight long years of darkness, of trampling on America's treasured values of justice and due process. The order is remarkable in its timing and its clear intent to close down Guantánamo and unequivocally halt the Bush administration's shameful military commissions. While the order leaves some question as to how some detainees will be released or prosecuted, we trust that's not President Obama's intent and hope that any ambiguity is due to the fact that this order was done on day one in record time. We are confident that President Obama understands that indefinite detention without trial must end once and for all and that detainees should be either prosecuted in a federal court or, if there is no evidence against them, released or transferred to countries where they will not be tortured. Our centuries-old justice system is well-equipped to handle these cases, and it's a great relief to finally have a president who is committed to upholding American values and the rule of law. Although we have a long road ahead to get to an America we can be proud of again, change has begun."

I'm confident that the ACLU will keep pushing for justice. And while they're at it, they ought to trust but verify on torture. The most recent report before today's news that Obama would bring the CIA under the Army Field Manual included a "loophole" that would allow torture in extreme cases.

However, Obama's changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said. They said the intent is not to use that as an opening for possible use of waterboarding, an interrogation technique that simulates drowning.

That's completely unacceptable and would be counter-productive. In addition, even if the entire government is brought under the Army Field Manual, we're STILL not done. As bmaz notes, even techniques allowable under the AFM can be combined in a fashion to effectively torture.

This is where Susan Crawford's stark admission comes into play. As Crawford admits, most all of the techniques used on al-Qahtani were actually permissible, but the layering of techniques compounded them into unmistakable torture.

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani's health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

Crawford has exposed to bright sunlight the lie that is Barack Obama's, and other politicians', simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions.

It could be that this is the "loophole" sought by Obama advisers, to allow the combination of certain techniques. Appendix M of the Army Field Manual may allow this latitude. That would need to be excised so that there is no ambiguity about the complete end to the torture regime.

Overall, we have an excellent set of proposals here, but the gray areas need to be filled in with the ideals of justice. President Obama said that the rule of law "will be a touchstone of my Administration". He has every opportunity to prove it.

...more hints that extra-legal interrogation processes may be allowed. Don't defend it, don't mend it, just end it, Mr. President. Most Americans support you banning torture.

Holder Pattern

I caught a little of the Eric Holder testimony to the Senate Judiciary Committee on the way in. I guess the page one headline is that he called waterboarding torture. If that's so, then he is obligated by law to prosecute those who authorized and directed it. Just sayin'.

The cable gabfests are probably talking about him taking responsibility for mistakes made in the Marc Rich pardon. I want to focus on a couple other things. First, the issue of Guantanamo:

Holder echoed that stance Thursday but said shuttering the prison would be difficult and would take time. Many detainees could be transferred to other countries, he said, and some could be charged in U.S. courts. That is a contentious proposal because many oppose the idea of bringing terrorism suspects onto U.S. soil.

"There are possibly many other people who are not going to be able to be tried but who nevertheless are dangerous to this country," Holder said. "We're going to have to try to figure out what we do with them."

What we do is old-fashioned detective work, figure out if we can charge these people, and if we can't, release them. It's as simple as that. That's going to take a little time, since the evidence is currently in complete disarray, as a former prosecutor at Gitmo acknowledges. But it can and should be done as quickly as possible. Furthermore, there is an error in assuming this applies to every detainee still at the facility. It does not. There are hundreds that present no threat to the United States and should be released.

A federal judge ordered the release yesterday of a detainee at the U.S. military prison at Guantanamo Bay, Cuba, ruling that the government's evidence is too weak to justify the man's continued confinement.

It is the second time that U.S. District Judge Richard J. Leon has ordered the release of a detainee after examining government evidence, most of it classified. Leon said that the Justice Department failed to prove that Mohammed El Gharani, 21, is an enemy combatant because it relied heavily on statements made by two other detainees whose credibility is questionable.

In fact, the least we can do is allow some of the detainees whose lives we destroyed to remain free in the United States, even as a symbolic act of contrition and tolerance. This will make it easier to export other detainees to Western nations. If the Obama-Holder plan is just a kinder and gentler indefinite detention and more friendly military commissions, then they own a process which, among other things, is trying children in sham courts, against international law.

A couple other things - Jeff Sessions' questioning of Holder was hilarious. Sessions admitted being "concerned" that Holder wants to operate within the "spirit of the Constitution," because that could mean different things to different people. Yes, see, if your version of the Constitution means that we're not allowed to crush the testicles of children, Mr. Holder, we've got a problem!

In Chuck Schumer's testimony, Holder was asked if he would review the case of Bradley Schlozman and the politicization of the civil rights division, to determine why the US Attorneys declined to prosecute, and Holder said he would. So the Schloz is not out of the woods yet. And he was strong on the overall issue of politicization.

Holder promised to be an independent attorney general, telling lawmakers that he did not believe the attorney general's job was to serve as the president's lawyer — a frequent criticism of Gonzales' tenure under President George W. Bush. He also pledged to restore the independence of a Justice Department where Bush administration appointees used political benchmarks when making hiring decisions.

"One of the things I'm going to have to do as attorney general in short order is basically do a damage assessment," Holder said.

Several Republicans have already agreed to back Holder, so the effort to oppose him is pretty much a sideshow. Inside the false media narrative, however, there is some important information coming out.