If Accountability Is The Standard

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

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

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

"If accountability is the standard." Nice.

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

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

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

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

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

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

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

Clearly A Political Move

I didn't bother to watch Dick Cheney's Traveling Emporium and Snake Oil Sales Extravaganza on Fox News Sunday, mainly because I knew that pro-torture Chris Wallace and the whole pro-torture team over there would treat it like a fanzine fluff piece. Wallace's hourlong fellatio session probably satisfied Cheney immensely, and predictably, the other networks saw fit to publicize Little Dick and his concubine, because what a former Vice President says is automatically news! News! News! Don't you remember all those prime-time slots for Walter Mondale, Dan Quayle and Al Gore recently?

In this case, there was some news made, although not of the variety that's being reported. First of all, Cheney, who appears to think that the Bush White House functioned under the auspices of the law, believes that the Attorney General of the United States is a political appointee. I'm sure that, in the case of Alberto Gonzales, that was true. It's not how the American system works, of course.

The president is the chief law enforcement officer in the administration. He’s now saying, well, this isn’t anything that he’s got anything to do with. He’s up on vacation on Martha’s Vineyard and his attorney general is going back and doing something that the president said some months ago he wouldn’t do [...] Well, I think if you look at the Constitution, the president of the United States is the chief law enforcement officer in the land. The attorney general’s a statutory officer. He’s a member of the cabinet.

Fourthbranch would have been the world's best Revolution-era Tory. He truly believes in the divine right of kings. Witness later in the interview, where he in his capacity as chief law enforcement officer of the United States decides to toss out the law books.

WALLACE: Do you think what they did, now that you’ve heard about it, do you think what they did was wrong?

CHENEY: Chris, my sort of overwhelming view is that the enhanced interrogation techniques were absolutely essential in saving thousands of American lives, in preventing further attacks against the United States, in giving us the intelligence we needed to go find al Qaeda, to find their camps, to find out how they were being financed. … It was good policy. It was properly carried out. it worked very, very well.

WALLACE: So even these cases where they went beyond the specific legal authorization, you’re okay with it.

CHENEY: I am.

Worked so well, in fact, that CIA and military interrogators killed dozens of detainees in their custody. But what's a little torture and murder when you're talking about saving lives? Oh, and Cheney's answer is a lie, but that's redundant.

Perhaps the most absurd thing about Fourthbranch, and also what gets him through the night, I would gather, is how he actually thinks his Administration has a good record on counter-terrorism.

I seem to recall the Bush/Cheney era a little differently. Cheney thinks it was a sterling success when it came to national security and counter-terrorism. Perhaps there's something to this. After all, except for the catastrophic events of 9/11, and the anthrax attacks against Americans, and terrorist attacks against U.S. allies, and the terrorist attacks against U.S. troops in Iraq and Afghanistan, and Bush's inability to capture those responsible for 9/11, and waging an unnecessary war that inspired more terrorists, and the success terrorists had in exploiting Bush's international unpopularity, the Bush/Cheney record on counter-terrorism was awesome.

After the previous administration established a record like that, President Obama didn't ask Cheney for tips? The nerve.

You see what Cheney is doing here. He wants to politicize the Bush terror policies - the investigations being sought by the Attorney General are "clearly a political move," he says - so that any attempt to question them becomes a partisan food fight instead of simply the application of law. This is his metier and he does it very well, judging from all the attention he receives every time he emerges from the bunker. Conservatives, ever on the lookout for victimization, cry that the Justice Department is being all political by investigating torture and murder, and the media cover the ping-pong match.

But they do more than that. They print fallacious articles that continue to muddy the waters, still trying to determine if torture "worked" (using anonymous sources and expertly cherry-picked information), and declare themselves unable to read the unbiased evidence that shows the opposite of Cheney's blathering.

And thus, the public is confused. About torture.

Bravo, Fourthbranch.

...Also, Cheney won't cooperate with any "improper" investigation. A Justice Department-directed investigation. You know, "fuck you" and all that.

The Darkest Of The Dark Sides

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Keith Olbermann talks with Jane Mayer in this clip about the release of the CIA IG report and the preliminary investigation into some of the worst practices of the torture regime. She talks about how the IG report reads like "a crime scene," foregrounding the idea that the architects of the policy at CIA were warned in this 2004 report and repeatedly thereafter that their agency would be in deep legal trouble for continuing these actions, and yet they kept justifying them and/or actually engaging in them for years afterward. Nobody took the warnings seriously, knowing both the makeup of the Justice Department and the Presidency at that time, and perhaps banking on how Washington would view these efforts, as part of the past and best kept their, given the Establishment culpability for torture.

Here's just a few of the facts of what CIA interrogators did in our name, just the ones that come from this IG report, as masterfully summarized by Glenn Greenwald:

• Threats of execution, using semi-automatic handguns and power drills
• Threats to kill detainee and his children
• Threats to rape detainee's wife and children in front of him
• Restricting the detainee's carotid artery
• Hitting detainee with the butt end of a rifle
• Blowing smoke in detainee's face for five minutes
• Multiple instances of waterboarding detainees, of the type we prosecuted Japanese war criminals for using:
• Hanging detainee by their arms until interrogators thought their shoulders might be dislocated
• stepping on detainee's ankle shackles to cause severe bruising and pain
• choking detainee until they pass out
• dousing detainee with water on cold concrete floors in cold temperatures to induce hypothermia
• killing detainees through torture techniques, whether accidental or not
• putting detainee in a diaper for days at a time to live in their own filth

On that last point, Digby notes that this could have been used in tandem with another technique we know about, the use of forced enemas, a particularly degrading technique, part and parcel of the humiliations heaped on prisoners that were psycho-sexual in nature. A lot of these stem from misreadings of books like Raphael Patai's "The Arab Mind," which presumed a host of dubious generalizations about Muslims and their predispositions, all of it willingly lapped up by neoconservatives willing to believe that their opponents were somehow subhuman. As if anyone would react favorably to being made to live in their own shit. These stereotypical projections that manifested themselves in essentially an allowance for torturing brown-skinned people have dangerous and deadly repercussions.

But whatever Patai's intentions, the kind of thinking he engaged in does have real-world consequences, ones that reverberate far beyond the walls of Abu Ghraib. In their recent book "Occidentalism" (Penguin), Ian Buruma and Avishai Margalit argue that a reciprocal negative stereotype of the West has arisen in the Arab world, one that holds that the West is licentious, amoral, overly sexualized, aggressive, and engaged in a crusade against Islam. Buruma and Margalit trace this stereotype back to thinkers of the Western counter-Enlightenment, but events like the abuse at Abu Ghraib, in which soldiers reportedly not only raped prisoners but forced them to eat pork and drink alcohol, suggest that an Occidentalist worldview has sources much closer at hand, in the actual experience of domination.

In the wake of the Iraq war, mutually reinforcing Occidentalist and Orientalist stereotypes have contributed immeasurably to the fear and apprehension that divides Islam and the West. It should be observed that the human rights violations that took place in Abu Ghraib would have been no less horrific had they taken place in Madison, Wis. But the explosiveness of the situation makes them far more dangerous as we enter an era where each side defines the other only by its worst excesses. Rather than plumbing some mythical "Arab mind," we should affirm the shared humanity that transcends our differences and binds us all together.

Because of the reliance on stereotypes, the lack of factual information and the pressure from the top to come up with any information in the early post-9/11 period, this all led to "unauthorized, improvised, inhumane and undocumented" being used repeatedly and in violation of multiple federal laws and international conventions. None of them made Americans safer, in fact many of them probably made the country less safe, and all of them were decidedly illegal, debasing and severely damaging to our moral capability. We have made a mockery of the presumption that in America, the law is king. Now a generation of torture-loving conservatives believe that the ends justify any means, up to and including murder.

They don't. And as soon as you begin to have an argument over torture's effectiveness, the argument is immediately lost. But it's worth noting that Dick Cheney, the Great Dissembler, claimed for months that documents would show the how torture worked in saving lives, and yet, while those documents were released along with the IG report, as Mayer says none of the information contained in them prove Cheney's hypothesis.

OLBERMANN: What about Mr. Cheney's assessment that there would be documents that prove that torture worked where traditional and legal interrogation did not or would not. Is there anything in those documents that were released today that supports that contention?

MAYER: Well, the documents that I've seen, and maybe I'm missing something, but so far, I am amazed at how little support there is for the things that Vice President Cheney has been saying. There is nothing but a mass of claims that they got information from this individual and that individual, many from KSM, who apparently has been the greatest fount of information for them, but there's absolutely nothing saying that they had to beat them to get this information. In fact, as anybody knows who knows anything about Khalid Sheikh Mohammed, he was dying to tell the world, when he was interviewed by Al Jazeera before he was in US custody, about everything he knew and everything he did. He was proud of his role as the mastermind of 9/11. He loves to talk about it. So there's no evidence that I see in this that these things were necessary. I spoke to someone at the CIA who was an advisor to them who conceded to me that "We could have gotten the same information from tea and crumpets."

OLBERMANN: Or buying a copy of the Al Jazeera interview.

The Cheney documents were deliberately created at the time to rebut both this CIA Inspector General report recommending prosecutions, and the heat put on by Congress about allegations of torture. They were actually conceived to deceive people into believing that torture works, an irrelevant point at best. And yet these same memos do not support Cheney's claims. They say that certain individuals gave up information, but only after questioned through traditional means, which was happening contemporaneously to the torture. It is impossible to say definitively, therefore, which information came as a result of what techniques.

And yet, not only has traditional media largely ignored the fact that the documents do not support Cheney's claims (which were given tons of media attention previously), but an extremely carefully worded statement by Cheney, stating that "The documents released Monday clearly demonstrate that the individuals subjected to Enhanced Interrogation Techniques provided the bulk of intelligence we gained about al Qaeda" - which says nothing of WHAT techniques caused this intelligence to be gleaned - has been taken completely at face value by reporters, in particular CNN, which ran Cheney's comments as facts:

Cheney says documents show interrogations prevented attacks

Former Vice President Dick Cheney says documents released Monday support his view that harsh interrogation techniques used on terrorism suspects prevented attacks and yielded crucial information about al Qaeda.

A simple read of the documents shows this to be completely untrue. Jane Mayer, as expert a journalist on this subject as anyone, calls them unsupportable. But too many reporters just write down these things and run with them, the facts be damned. It's part of a disturbing pattern, as Digby says:

If you have followed the torture revelations over the years, you can't help but be just a tad disillusioned by the fact that the mainstream media acts over and over again as if they were born yesterday and each time these stories are validated it's as if it's the first time they've heard it.

We already know they tortured. We know that DOJ bureaucrats illegally approved the torture on Dick Cheney's request and we know that a bunch of unprofessional, untrained interrogators complied and then went beyond even what was approved. We know that innocent people were tortured and we know that prisoners were killed. We've known all this for a long time. The question is not what happened, it's whether anyone will be held accountable for it.

On that point, here's Jane Mayer talking about the Durham investigation, actually hopeful about what it may find:

MAYER: Well, my guess is that if they actually open some kind of serious investigation, and Durham is said to be a very serious prosecutor, that even if they start at the very bottom, it's going to keep leading up and up through the chain of command. Because, if nothing else, if they actually bring charges against anybody at the CIA who was at the bottom of the food chain, the first thing that person's going to do is say "I was authorized, let me tell you what my orders were." So they've begun a process that could lead to the top.

OLBERMANN: Well, if it works along the Archibald Cox lines, as I analogized last week, where they've supposedly circumscribed it, but people want to get out from the scapegoat for the whole operation, then I think your assessment is correct.

We know that none of the torture here happened by happenstance, but through a directed policy emanating from the top. Instead of prosecuting "bad apples" who were young MPs on the night shift in Baghdad, we're talking about mid-level career CIA. They aren't dupes, and they know how to shift the attention up the chain of command. I don't think these interrogators will live with being the scapegoats. It may take some time, but we really could see some legitimate accountability here. And I hope so - because otherwise this will remain a black mark that can never wash out.

The Incredible Shrinking Investigation

Marcy Wheeler doesn't think John Durham has the juice to effectively probe the Bush torture regime:

As I said in my panel at Netroots Nation, we'll know a lot about whether Holder intends to do a real investigation, or just a whitewash investigating the Lynndie Englands, by the stature of the prosecutor he names. And while Durham is already neck deep in the investigation of torture on the torture tapes, he doesn't necessarily have the stature to go after--say--Jim Haynes and John Rizzo for setting up the torture regime.

I guess Holder wasn't that serious about investigating torture after all.

The White House has now weighed in (though with the Press Secretary's office attached, not the President) praising Holder for limiting the scope of the investigation.

The President has said repeatedly that he wants to look forward, not back, and the President agrees with the Attorney General that those who acted in good faith and within the scope of legal guidance should not be prosecuted. Ultimately, determinations about whether someone broke the law are made independently by the Attorney General.

Doesn't seem like much will be gained from this investigation, after all. It'll look good in the papers, though.

By the way, the IG report is out, along with the "Cheney documents," the ones he claim vindicate the use of torture. Of course, the CIA used torture techniques in tandem with other, more traditional interrogation tactics, so it's really impossible to answer Cheney's question, which I find irrelevant anyway, because torture is torture.

As for the IG report, Spencer Ackerman and Marcy Wheeler are documenting the atrocities. What we know so far: the CIA lied to Bybee and Yoo so they could get approval for torture; they shut off the cameras for 21 hours during a waterboarding interrogation; and the torturers were engaging in techniques before being given the verbal OK by higher-ups. That's just a taste.

Special Prosecutor

WaPo sez:

Attorney General Eric H. Holder Jr. has decided to appoint a prosecutor to examine nearly a dozen cases in which CIA interrogators and contractors may have violated anti-torture laws and other statutes when they allegedly threatened terrorism suspects, according to two sources familiar with the move.

Holder is poised to name John Durham, a career Justice Department prosecutor from Connecticut, to lead the inquiry, according to the sources, who spoke on condition of anonymity because the process is not complete.

Durham's mandate, the sources added, will be relatively narrow: to look at whether there is enough evidence to launch a full-scale criminal investigation of current and former CIA personnel who may have broken the law in their dealings with detainees. Many of the harshest CIA interrogation techniques have not been employed against terrorism suspects for four years or more.

Durham's been handling the investigation over the destruction of the torture tapes, which hasn't yielded much information to date. Obama is trying to stay as far away from this as possible; his spokesman's statement is "The White House supports the attorney general making the decisions on who gets prosecuted and investigated."

The narrowness of this investigation, focused on only the CIA personnel who colored outside the lines set down by moral lepers John Yoo and Jay Bybee, is reprehensible. If it only extends that far, we're seeing a replay of the Abu Ghraib investigation which sent Lynndie England to jail but let those who authorized and directed the abuse free with nary a warning. Basically, Holder is following the Office of Professional Responsibility report, which recommended that they reopen about a dozen prisoner-abuse cases, some of which include murders. I hold no brief for the CIA personnel who engaged in this, but confining the mandate to the low men and women on the totem pole will do nothing to chill the potential for such abuse to happen again. If any old lackey in the Office of Legal Counsel can write up an opinion essentially validating torture, and they become de facto legal as long as those using the guidelines follow them generally, we don't really have a rule of law anymore. And future Presidents will easily discern the loophole in the system.

However, just the possibility of prosecuting individuals who did, after all, break the law, is enough for establishmentarians like Leon Panetta to reportedly threaten resignation. And the Durham investigation, in the end, is up to John Durham. He can be given a mandate, but Eric Holder has said in the past that he cannot circumscribe an investigation so much as to effectively immunize certain individuals. If the small fish flip, Durham, like any prosecutor, can find out who authorized their actions. And that can lead to the Bush White House.

I think Panetta, and the CIA in general, are probably more angered by the Obama Administration taking some of their responsibilities away, like giving the White House oversight through the National Security Council over the "High-Value Detainee Interrogation Group." (That task force, by the way, unanimously determined that the Army Field Manual shall be the ultimate parameter when questioning suspects.) This is probably more of a turf war than anything.

But maybe, just maybe, CIA - particularly its Bush-era holdovers - know that an investigation, once started, is hard to stop or rein in.

We still have the CIA Inspector General report coming today as well.

...First bit of new news from the IG report (haven't seen the report online anywhere yet):

A newly declassified CIA report says interrogators threatened to kill the children of a Sept. 11 suspect.

The document, released Monday by the Justice Department, says one interrogator said a colleague had told Khalid Sheikh Mohammed that if any other attacks happened in the United States, "We're going to kill your children."

Another interrogator allegedly tried to convince a different terror suspect detainee that his mother would be sexually assaulted in front of him - though the interrogator in question denied making such a threat.

I don't know if such a threat went "above and beyond" the Yoo-Bybee memos, so I'm glad we're saving investigations for only the really bad stuff.

...I now have Atty. Gen. Holder's statement. I think it pretty much speaks for itself. Note that it says nothing about those who authorized detainee abuse, which also possibly means that they are not shielded from review. And realize, of course, that even this hedged, incomplete investigation is likely to launch the shitstorm to end all shitstorms from the Village:

“The Office of Professional Responsibility has now submitted to me its report regarding the Office of Legal Counsel memoranda related to so-called enhanced interrogation techniques. I hope to be able to make as much of that report available as possible after it undergoes a declassification review and other steps. Among other findings, the report recommends that the Department reexamine previous decisions to decline prosecution in several cases related to the interrogation of certain detainees.

“I have reviewed the OPR report in depth. Moreover, I have closely examined the full, still-classified version of the 2004 CIA Inspector General’s report, as well as other relevant information available to the Department. As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter. I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.

“Assistant United States Attorney John Durham was appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. During the course of that investigation, Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand. Accordingly, I have decided to expand his mandate to encompass this related review. Mr. Durham, who is a career prosecutor with the Department of Justice and who has assembled a strong investigative team of experienced professionals, will recommend to me whether there is sufficient predication for a full investigation into whether the law was violated in connection with the interrogation of certain detainees.

“There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nation’s intelligence community. I could not disagree more with that view. The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.

“I share the President’s conviction that as a nation, we must, to the extent possible, look forward and not backward when it comes to issues such as these. While this Department will follow its obligation to take this preliminary step to examine possible violations of law, we will not allow our important work of keeping the American people safe to be sidetracked.

“I fully realize that my decision to commence this preliminary review will be controversial. As Attorney General, my duty is to examine the facts and to follow the law. In this case, given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take.”

...Reps. Conyers and Nadler:

“I applaud the Attorney General’s decision to appoint a special US Attorney to review the interrogation abuse cases that were rejected for prosecution by George Bush’s Justice Department,” said Conyers. “The Obama Administration also deserves praise for the release of the 2004 CIA Inspector General report as well as related DOJ memos. These materials are truly disturbing, including the CIA’s basic conclusion that ‘unauthorized, improvised, inhumane, and undocumented detention and interrogation techniques were used’ in its program. Reading about misdeeds such as threats to kill a detainees’ children or the staging of mock executions leaves us appalled.

“Today’s release -- even of these still heavily redacted materials -- is thus an important step toward restoring the rule of law in this country, and rebuilding our credibility around the world. But much more remains to be done. The gruesome acts described in today’s report did not happen in a vacuum. It would not be fair or just for frontline personnel to be held accountable while the policymakers and lawyers escape scrutiny after creating and approving conditions where such abuses were all but inevitable to occur.

“I have long believed that Department rules require a special counsel to review the entire interrogation program to determine if any crimes were committed. An independent and bipartisan commission should also be convened to evaluate the broader issues raised by the Bush Administration’s brutal torture program.”

“The CIA Inspector General’s report on interrogation practices under the Bush administration is a disturbing record of abuse that details why this must never happen again and why action on the part of the Justice Department is essential,” said Nadler. “Today’s news that the Attorney General has listened to our many requests and is poised to appoint a special counsel is very much welcome. I applaud the Attorney General for this first step. But, we must go further. As I have said for many months, it is vital that this special counsel be given a broad mandate to investigate these abuses, to follow the evidence where it leads, and to prosecute where warranted. This must be a robust mission to gather any and all evidence without predetermination of where it may lead. Seeking out only the low-level actors in a conspiracy to torture detainees will bring neither justice nor restored standing to our nation.”

To Be Fair, The Gun May Have Not Been Loaded

Remember, as long as interrogators didn't cause organ failure or death everything's fine.

CIA interrogators used a handgun and an electric drill to try to frighten a captured al-Qaeda commander into giving up information, according to a long-concealed agency report due to be made public next week, former and current U.S. officials who have read the document said Friday.

The tactics -- which one official described Friday as a threatened execution -- were used on Abd al-Rahim al-Nashiri, according to the CIA's inspector general's report on the agency's interrogation program. Nashiri, who was captured in November 2002 and held for four years in one of the CIA's "black site" prisons, ultimately became one of three al-Qaeda chieftains subjected to a form of simulated drowning known as waterboarding.

The report also says that a mock execution was staged in a room next to one terrorism suspect, according to Newsweek magazine, citing two sources for its information. The magazine was the first to publish details from the report, which it did on its Web site late Friday.

A federal judge in New York has ordered a redacted version of the classified IG report to be publicly released Monday, in response to a lawsuit by the American Civil Liberties Union. Since June, lawyers for the Justice Department and the CIA have been scrutinizing the document to determine how much of it can be made public. Attorney General Eric H. Holder Jr. has been weighing the report's findings as part of a broader probe into the CIA's use of harsh interrogation methods.

Got the Newsweek story right here. The interrogators of al-Nashiri clearly wanted him to think he would be shot, and in the other case, penetrated with a power drill, if he didn't give up the information they sought. The report also describes mock executions, in other words, gunshots going off in the rooms next door, making the prisoners believe they were killing others and they may be next. And look at this, "A federal law banning the use of torture expressly forbids threatening a detainee with imminent death."

Well, since when have federal laws amounted to anything in this crazy world? Especially if you can get some bureaucrat to sign off on it:

Three months before Nashiri's capture, the head of the Justice Department's Office of Legal Counsel -- Jay S. Bybee, now a federal judge -- advised the CIA in an August 2002 memo that threats of "imminent death" were not illegal unless they deliberately produced prolonged mental harm. Independent legal experts have called that interpretation too hedged and thus too lax.

The CIA's excuse, of course, is that they didn't engage in any behavior that "went beyond formal guidance." Which isn't true, according to those familiar with the IG document - there's apparently an entire section listing violations by CIA interrogators. But the formal guidance, from hollowed-out souls like Bybee, was itself illegal. And we have documentary evidence of that beyond this IG report. Al-Nashiri was one of the suspects waterboarded by the CIA, as well as one of those who had his interrogation sessions taped. The CIA destroyed the torture tapes, but at a Netroots Nation panel an ACLU lawyer stated that there are written transcripts of these sessions which have been hidden from the public.

Not only will we get a chance to read all the gory details of this next week, but the "Cheney documents" will be on display as well:

At the same time the administration releases the inspector general's report, it is also expected to release other CIA documents that assert the agency collected valuable intelligence through the interrogation program. For months, former vice president Dick Cheney has called for these documents to be released. However, a person familiar with the contents of the documents says that they contain material that both opponents and supporters of Bush administration tactics can use to bolster their case. The Senate Committee on Intelligence is now conducting what is supposed to be a thorough investigation of the CIA's detention-and-interrogation program. The probe is intended not only to document everything that happened but also to assess whether on balance the program produced major breakthroughs or a deluge of false leads.

So we'll get a back and forth about whether torture saves lives, which each side cherry-picking their own set of facts (incidentally, the IG report concludes that the interrogations were "not effective"). But none of this strikes to the heart of the matter - we tortured. Torture is illegal. The ends don't justify the means in any legal sense. And those who authorized, directed and engaged in torture should be prosecuted. In fact, the current Administration violates the law with each day they fail to do so.

New York Congressman Jerry Nadler, a senior Democrat on the House Judiciary Committee, told the Huffington Post that he believed that President Obama would be breaking the law if he decided to oppose launching investigation into the authorization of torture.

"If they follow the law they have no choice," Nadler said in an interview this past weekend.

The logic, for Nadler, is straightforward. As a signatory of the convention against torture, and as a result of the anti-torture act of 1996, the United States government is obligated to investigate accusations of torture when they occur in its jurisdiction.

The alternative, Nadler said, "would be violating the law. They would be not upholding the law; they would be violating it."

This will flare up every few weeks until justice is done. And with each passing day, trust in the President slips.

So You Don't Prosecute Our Friends For Wrongdoing, We'll Politicize 9-11

Danger, Eric Holder - apparently Republican Senators want you to know that if you actually obey the rule of law, you're killing innocent people just like the terrorists did when they flew into the World Trade Center.

Leading GOP lawmakers cautioned U.S. Atty. Gen. Eric H. Holder Jr. on Wednesday against opening an investigation into alleged CIA interrogation abuses, saying that such an inquiry could have serious national security repercussions.

"It is well past time for the Obama administration to lift the cloud that has been placed over those in the intelligence community and let them return to the job of saving American lives," the lawmakers wrote in a letter to Holder signed by nine Republican senators. An investigation that distracts the CIA, the lawmakers said, "could leave us more vulnerable to attack."

Among those who signed the letter were Sen. Jon Kyl (R-Ariz.), the minority whip; Sen. Christopher S. Bond of Missouri, the ranking Republican on the intelligence committee; and Sen. Jeff Sessions of Alabama, the top Republican on the judiciary committee.

If Republicans are being dicks, rest assured that Jon Kyl is in the middle of it. He also thinks immigrants should get a death sentence for overstaying their visas. So I'm sure Kyl wrote this part of the letter himself:

"The 9/11 Commission emphasized that keeping our country safe from foreign attack requires that the Justice Department work cooperatively with the intelligence community, but the appointment of a special prosecutor would irresponsibly and unnecessarily drive a wedge between the two."

Shorter Republicans - if you actually enforce laws against torture, the terrorists will have already won.

Up With Chuck

Earlier this week, Chuck Todd made a tiresome argument about how investigations into lawbreaking in the Bush Administration would be politicized and therefore shouldn't be done because it would distract the nation from the important business of whittling health care down to nothing. Todd decided to respond to Glenn Greenwald's criticism of his opinions on this matter, and the result was a fairly remarkable conversation that offers a window into the mind of the typical Villager, unable to divorce anything from political day-to-day combat, unable to view anything through something other than a partisan lens, unable to determine right from wrong. The one question that Todd fails to answer throughout the interview is why believers in the rule of law are supposed to care about how investigations and/or prosecutions of members of the Bush Administration make certain people inside the Beltway feel. Here's just a sample, but the whole thing goes like this, so give it a read:

GG: Let me ask you this question: The United States is a party to a treaty - I don't know if you ever read it or not, it's called the Convention Against Torture - and one of the things it does is it obligates all signatories to the treaty to prosecute any acts of torture. And it was signed by Ronald Reagan in 1988, and when he transmitted that treaty to the Senate, explaining what that treaty does, he wrote, quote, "Each state party is required either to prosecute torturers who are found in its territory, or to extradite them to other countries for prosecution."

Do you think the U.S. should be bound, is bound by that treaty? And, I want to ask you: with regard to the question of whether or not we follow that treaty, why do you describe that as nothing more than, quote "cable catnip".

CT: Alright. The "cable catnip" comment was this. This issue, whenever you see the words Cheney and intelligence pop up, and when I use the phrase 'cable catnip', it is when something becomes, whether the two polarized parts of our political society, are very entrenched in their views on this, and believe the other side is completely irrational on it. And so, that's, whenever you have an issue like that, that's what I describe as 'cable catnip'. Because it becomes something that is easy to put on television, because you can find a left versus right, which is something that cable embraces to a fault, and I'm in this business but I'm, I work my butt off trying to stay out of the left versus right fights and try to stay analytical and stay on the reporting end of things.

And so, that's when I describe an issue as cable catnip. I am not sitting here and saying - and I respect the passion on this, and I don't want to somehow sit here saying that on the right I've been accused of somehow just assuming that our national security is nothing more than cable catnip, or that torture of detainees is somehow relegated to cable catnip. That is not what I'm describing when I say cable catnip, but I want to put that aside.

To go back to your question, of course, any treaty we sign, the United States government is obligated to stand by it. Now, the controversy has been, and what we're trying to figure out - and what I think where the Justice Department is trying to figure out, and where this whole debate has been about - is whether they found a legal way to somehow abide by this treaty or not.

GG: And isn't that--

CT: ...abiding by the treaty--

GG: And isn't the best thing to do to immunize that question from political considerations is to say to a prosecutor, the way that we do with every other accusation of crime: take a look at the pure legal issues here, ask: "were crimes committed; is this the kind of case that indictments are appropriate for, where people should be put on trial," and then just have this be treated like every other accusation of crime, which is the prosecutor taking a look?

CT: I agree, in a perfect world - Glenn, in a perfect world, yes. And if you could also guarantee me, that this wouldn't become a show trial, and wouldn't be put, and created so that we had nightly debates about it, that is the ideal way to handle this.

GG: Why not? What's wrong with nightly debate about whether our government committed crimes?

CT: Because then it becomes, then you do politicize the issue, to the point of where you won't - the fact is, public opinion was on the opposite side of the argument as you. That doesn't mean public opinion should...

Mr. Todd "respects the passion" but cannot divorce the plain fact of law, in the Convention Against Torture, from the media back and forth. Then there's the idea that the Bush Administration "found a legal way" to somehow abide by the treaty. In other words, as long as they find a functionary - every Administration has their own John Yoo - to bless their actions, they can break the law in virtually any way they want. A permission slip from the Office of Legal Counsel, no matter how flawed the reasoning, can enable violations of the spirit, color and the plain fact of the law.

Todd talks about a perfect world as if those who demand accountability and justice are just wild-eyed idealists who don't understand the hard-bitten truth of how the world works. On the contrary, we know how it works, and we find it to be a problem. We understand that the Administration would be reluctant to wade into the actions of their predecessor. We get that the media will try to block holding top officials accountable by bemoaning the partisanship that they put on display every night. We get that the right would have a screaming hissy fit against whoever dared to investigate or prosecute one of their own. We understand that the entire dynamic in Washington is wired to prevent holding any member of any Administration to the same standard as someone in Poughkeepsie who committed a crime.

We just have a problem with it.

If Todd has his way, we will hear more stories - like the tale of a CIA Supervisor bragging about using fire ants on a detainee - of perfidy, that scar us around the world, and we will just move along.

Digby has more thoughts

An Appreciation Of Hilzoy

This is very disappointing news - Hilzoy is retiring from blogging. Most people who say that don't always follow through, but for some reason I believe Hilzoy will. And that's a loss, as she has been one of the more brilliant bloggers among us, often adding unusual perspectives and unreported topics to our little corner of the world. I'll miss reading her.

Because there's virtually no money in this, and the work is incredibly labor-intensive, I can hardly blame anyone who, after a period of time, just burns out. Hilzoy wrote at Washington Monthly in addition to Obsidian Wings, so she was probably one of the few to actually draw a little cash, but I'm sure it didn't stretch very far. It's just not legitimate to expect everyone to keep going on forever.

But in honor of Hilzoy, let me call attention to one of her last posts, a powerful plea to President Obama to live up to the hopes of people around the world. An excerpt:

In thinking about this, I am reminded of conversations I had when I was in Pakistan. My first trip there was in 2007, when the campaigns were just kicking into gear. People asked who I supported; I said Obama. They asked: but can he possibly win? I said that while I was reluctant to judge, I thought that he could.

The most common reaction -- not uniform, but common -- was a combination of several things. On the one hand, I was American and they were not, so the people I talked to naturally assumed that I probably had a better grasp of US politics than they did. Besides, I was their guest, and they were wonderfully polite. On the other hand, however, they found the idea that Barack Obama -- an African-American who did not come from a privileged background, whose father was from a Kenyan village -- could possibly be elected President literally unbelievable.

It was fascinating to watch them trying to reconcile these conflicting impulses: I was talking about a country I lived in, which most of them had never been to, and I was not obviously insane, but I was saying something that could not possibly be true. And, as best I could tell, there were two reasons why it couldn't be true: first, whoever the Pakistani analog of Barack Obama might be, that person would never be elected President in Pakistan, and second, they had been disappointed in America's track record in living up to its ideals, and so were not inclined to believe that it would do so this time.

The last time I went, Barack Obama had secured the nomination. People in Pakistan were astonished, but they were also really inspired. And I don't think that this was mainly about Obama's policies. It was about us living up to our ideals: about the idea that in America, anyone really can grow up to be President, and about the idea that enough of us had managed to look past our long history of slavery and discrimination and bigotry that we might elect Barack Obama President.

It gave people hope: the hope that cynics are not always right, and that the fix is not always in.

If we're interested in our image abroad, we could do a lot worse than simply deciding to live up to our ideals: for instance, the rule of law. It's the right thing to do, but it's also the smart thing.

I'll miss that insight.

The Rush To Judgment

Pretty much every news outlet has confirmed that the secret CIA program held from Congress by Dick Cheney concerned targeted assassinations of Al Qaeda members abroad, basically the "executive assassination ring" discussed by Sy Hersh earlier this year.

Dick Cheney, the former vice president, ordered a highly classified CIA operation hidden from Congress because it pushed the limits of legality by planning to assassinate al-Qaida operatives in friendly countries without the knowledge of their governments, according to former intelligence officials.

Former counter-terrorism officials who retain close links to the intelligence community say that the hidden operation involved plans by the CIA and the military to launch operations, similar to those by Israel's Mossad intelligence service, to hunt down and kill al-Qaida activists abroad without informing the governments concerned, even though some were regarded as friendly if unreliable.

The CIA apparently did not put the plan in to operation but the US military did, carrying out several assassinations including one in Kenya that proved to be a severe embarrassment and helped lead to the quashing of the programme.

I'd like to know more about that Kenya incident. Put it this way, when 15 year-old kids who committed no crime other than being valuable to an Afghan warlord seeking a bounty ended up at Guantanamo, I can only imagine what the fever dreams of Dick Cheney led to out in the world.

But something's not right here. Targeted assassinations of heads of state are illegal, President Ford signed that in 1975. But Peter Bergen explains that we have had assassination policies on Al Qaeda since before 9-11 and after.

Peter Bergen, a senior security analyst at the New America Foundation, said that the secret operation must have gone further than that to have created such a backlash in Congress: "If it's an assassination programme of al-Qaida leaders that is hardly surprising. Clinton had an assassination programme against bin Laden. There have been 27 drone missile strikes against al-Qaida alone this year."

It could be the case that Congress is merely upset about not being properly informed, also a crime under the National Security Act of 1947, and not the contents of the program. But two things stick out. It's completely unclear why this action, out of all the others, would be hid by the Bush Administration from Congress. Most terror policies were justified under the concept that we were at war with Al Qaeda, and the executive has broad discretion to carry out the policies he sees fit to protect the nation. I don't agree with the expansiveness of that view, but this kind of assassination ring would fall squarely inside that construct, no? Why would the Bush White House not be afraid to argue that we can torture suspects in the war on terror but terrified to explain that we can take out Al Qaeda safe houses with targeted strikes, the way that the Clinton Administration clearly did in the past? Why would it be so radioactive that Leon Panetta couldn't hear about it for six months after being made CIA Director?

The second thing that bothers me about this is the lightning quickness with which the program has been explained to the press, mostly through unnamed sources. You'd almost think that some members of the Bush Administration wanted to convince the public that their secret program only dealt with killing bad guys. And when I say some members, I mean Dick Cheney.

Bobby Ghosh at TIME has some different information:

But two former ranking CIA officials have told TIME that there's another equally plausible possibility: The program could have required the Agency to spy on Americans. Domestic surveillance is outside the CIA's purview -– it's usually the FBI's job – and it's easy to see why Cheney would have wanted to keep it from Congress.

Both officials say they were never told what was in the program, and that they're only making calculated guesses. But their theory gibes with other reports, quoting ex-CIA officials, that say the program had to do with intelligence collection, not assassinations.

“People may want this to be about hit squads bumping off shady Saudis in Geneva, but that's very unlikely,” says one official. “More likely, it was a plan to spy on some suspicious American citizens or organizations, without telling the FBI.”

A third CIA official who is familiar with details of the program says it was deemed unworkable and cancelled in 2004. It is not clear when or why the program was revived as a possibility, but it never got very far from the drawing board, as Republican Congressmen who received a confidential briefing about it by CIA Director Leon Panetta said.

The Cheney Administration ran so many secret programs that only him and David Addington, in all likelihood, know which program corresponds to which set of briefings or lack of disclosure from Congress. In fact the Inspector General report stated that the wiretapping program had little effectiveness precisely because of all the secrecy. So when every newspaper in the world reports about targeted assassinations within a day of the disclosure of some secret program hid by Cheney, I'm immediately dubious of the information, or rather the disinformation.

One thing is clear - there are potentially tons of unturned out there, unbeknownst to the President and his staff, and these landmines can detonate at really any time, throwing the White House off track. They might want to send in a special prosecutor simply to defuse them.

Balloons All Over

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

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

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

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

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

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

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

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

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

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

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

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

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

Why A Special Prosecutor? Let Me Count The Ways

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

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

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

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

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

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

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

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

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

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

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

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

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

• And then there's this:

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

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

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

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

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

Holder Of The Cards

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Obama Lays The Hammer Down On Torture Prosecutions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stupid CIA Tricks

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

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

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

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