Motivations

Apparently Dick Cheney is out hawking a book, which hopefully will include his younger years in the proto-punk scene at CBGB (look very closely at the bassist for Blondie and you'll see). This may lead some to believe that the media spectacle of Cheney popping up from the undisclosed location every five minutes into TV studios far and wide was a kind of pre-emptive book tour designed to raise his advance price. But actually, it seems that daughter Liz, who has been just as ubiquitous, let slip what perhaps could be the real reason for the press junket:

L. CHENEY: I don’t think he planned to be doing this, you know, when they left office in January. But I think, as it became clear that President Obama was not only going to be stopping some of these policies, that he was going to be doing things like releasing the — the techniques themselves, so that the terrorists could now train to them, that he was suggesting that perhaps we would even be prosecuting former members of the Bush administration.

Now, contrary to daughter Liz, the President has never suggested prosecution, in fact going out of his way to suggest the opposite on numerous occasions. So ol' Dick probably doesn't have much to worry about on that score. But he certainly did notice the growing outcry around these issues as the months went on, and knew somebody had to throw the media off the trail before all H-E-double hockey sticks broke loose and people started seeking the dreaded accountability. Fear has always been a powerful motivator for Cheney, and if there was a 1% chance of him going to jail for war crimes, he had to treat it like an inevitability, and waterboard the truth until it gave up.

After all, Cheney is nothing if not adept at getting out of going places.

Obama's Decision Point

The Spanish Attorney General has recommended that the court drop its case against six Bush-era officials for their role in authorizing and directing torture at Guantanamo Bay, for one main reason:

If alleged torture at Guantanamo is going to be investigated at all, that should be done first in the United States, so that the former American officials would have a chance to defend themselves there, Conde-Pumpido added, according to his press chief, Fernando Noya.

It's entirely possible that the case will go forward (prosecutors objected to this court's investigation of Augusto Pinochet, but it went ahead anyway), but the Attorney General makes a salient point. American prosecutors should investigate American crimes, and violations of treaties to which America is a signatory. And today, President Obama can show what side he lines up on with respect to that question.

Today is the most significant test yet determining the sincerity of Barack Obama's commitment to restore the Constitution, transparency and the rule of law. After seeking and obtaining multiple extensions of the deadline, today is the final deadline for the Obama DOJ to respond to the ACLU's FOIA demand for the release of four key Bush DOJ memos which authorized specific torture techniques that have long been punished (including by the U.S.) as war crimes. Today, Obama will either (a) disclose these documents to the public or (b) continue to suppress them -- either by claiming the right to keep them concealed entirely or, more likely, redacting the most significant parts before releasing them.

The most recent information on this suggests that Obama was siding with the CIA to redact information from the memos revealing the most graphic tactics used in interrogation. In particular, there is one technique whose release concerns the Administration.

Among the details in the still-classified memos is approval for a technique in which a prisoner's head could be struck against a wall as long as the head was being held and the force of the blow was controlled by the interrogator, according to people familiar with the memos. Another approved tactic was waterboarding, or simulated drowning.

A decision to keep secret key parts of the three 2005 memos outlining legal guidance on CIA interrogations would anger some Obama supporters who have pushed him to unveil now-abandoned Bush-era tactics. It would also go against the views of Attorney General Eric Holder and White House Counsel Greg Craig, people familiar with the matter said.

Top CIA officials have spoken out strongly against a full release, saying it would undermine the agency's credibility with foreign intelligence services and hurt the agency's work force, people involved in the discussions said. However, Director of National Intelligence Dennis Blair favors releasing the information, current and former senior administration officials said [...]

Intelligence officials also believe that making the techniques public would give al Qaeda a propaganda tool just as the administration is stepping up its fight against the terrorist group in Afghanistan and Pakistan. Some former administration officials have also argued that releasing all the memos could help terrorists train to endure the most extreme interrogation techniques.

Marcy Wheeler explained that this is nonsensical, because it's already been disclosed by the ICRC report, meaning that whatever propaganda value Al Qaeda could glean from such disclosure already exists.

And Greenwald notes that these are legal documents, from the Office of Legal Counsel, and not intelligence documents that would compromise sources and methods. These were the secret laws under which the United States was governed in the Bush era with respect to their view of the laws on interrogation techniques, and failure to disclose them would essentially means that Obama agrees with the opinion that the United States executive branch should govern itself secretly and outside the purview of the people who hired him.

This renders blatantly frivolous the Bush-mimicking excuse that will almost certainly be offered in the event of substantial redactions today (and which anonymous Obama officials previewed yesterday in the WSJ): namely, that non-disclosure is compelled by the Safety of the American People. Aside from the fact that the "enhanced interrogation techniques" which these memos authorized are supposedly barred from use by President Obama's own Executive Order -- thus rendering any national security claims for concealment of "operational details" absurd on their face -- how can it be the case that legal opinions about what is and is not legal in the view of the Government should be kept secret? To justify the non-disclosure of these memos is to affirm the right of the U.S. Government to operate under secret laws -- about the most anti-democratic state of affairs imaginable.

Andrew Sullivan summarizes the decision today.

If Obama, for some reason, decides to prevent us from seeing exactly what was done then he will achieve only one thing: he will tell the world that the US has indeed authorized and practised war crimes while simultaneously telling the world that America will not be accountable for it.

He will betray all of us who supported him to restore the rule of law. He will, in fact, merely confirm the worst fears of what was actually done while making himself an accomplice to protecting the war criminals who did it.

And indeed, we will have to assume, in the absence of this disclosure, that at least some of these techniques are still going on. The fact that a Guantanamo detainee recently called Al Jazeera with his telephone privilege to complain of abuse at the hands of his captors offers a glimpse into the current situation at Guantanamo. Without full disclosure, we have to surmise the reasons for the protection of Bush doctrine, and one possible option is that it's still in place.

On a day where we here of more civil liberties abuses at the heart of our government, the President can choose to defend those past abuses, or by opposing, end them. His choice.

Binyam Mohammed Going Home

This is the least we can do.

A former British resident held at Guantanamo Bay, Cuba, will be flown home early next week, marking the first transfer of a Guantanamo detainee by the Obama administration, according to a source involved in the process, who spoke on the condition of anonymity because he is not authorized to speak on the subject.

The British government had pressed the new administration to make the case of Binyam Mohammed a priority. The release of the Ethiopian native could come as early as Monday, the day Attorney General Eric H. Holder Jr. is scheduled to visit the military facility with top Justice Department officials who are leading a review of the cases of the approximately 245 detainees held there [...]

Mohammed was recently visited by British officials, including a police physician who persuaded him to end a hunger strike. Officials in Britain have said Mohammed faces no charges there and will be released upon his return.

The question is whether there will be a gag order on Mohammed, like David Hicks, or whether he will be allowed to tell his story in his own words, the way Mohamed Barag Fashmilah did to devastating effect in the Huffington Post yesterday. Either way, Bashmilah and Mohammed are symbols of the same disease - a failure to account for the past and unburden the sins of the Bush era.

My physical symptoms are made worse by the anxiety caused by never knowing where I was held, and not having any form of acknowledgment that I was disappeared and tortured by the U.S. government.

I believe that acknowledgment is the first step toward accounting for a wrongdoing. The American public needs to face what has happened to those of us who were disappeared and mistreated in the name of their national security, demand accountability for those who committed torture and other crimes, and acknowledge the suffering of those who became victims. Today, a group of concerned Americans called on President Obama to take the first steps to do just that, by demanding that he establish an independent commission of inquiry into the treatment of detainees in the "War on Terror."

President Obama himself recently said that "democracy requires accountability and accountability requires transparency." If he establishes this commission, it would break the silence about what has happened and signal a real commitment not only to changing the practices of the past but also to ensuring that they do not happen again. Both the American public and the victims of these past policies need to understand what the CIA did in the name of U.S. national security. We need to find out where we were all held and who is still missing. And we need justice for the crimes that were committed in violation of our most basic human rights -- rights the United States has always claimed to uphold and defend. President Obama's recent order to the CIA to shut down its secret prisons was a significant step in the right direction, but it did not resolve the unfinished business of establishing accountability and restoring transparency.

The American public deserves to know what was done to people like me -- and I deserve to know why I lost nineteen months of my life -- all in the name of protecting their security. It gives me faith to see that Americans are standing up for my rights and calling for the truth to be exposed. It is my hope that the President will not only establish this commission, but that he will also direct the relevant authorities to investigate and prosecute those who broke American laws in ordering the torture and disappearance of people like me. Truth and justice are not in opposition; both are necessary, and both are the right of all Americans and the victims harmed in their name.

Absolutely. At the very, very least, we need Patrick Leahy's Truth Commission so we can discover the truth and build reforms. However, the Church Commission didn't work to stop a rogue President from attacking the rule of law again. So we need to have real accountability in the form of prosecutions, not clown shows where the likes of Alberto Gonzales "cooperate" the way he cooperated with the Senate Judiciary Committee as Attorney General ("I don't recall, I don't recall.") If the monsters aren't shown the consequences of their wrongs, they will return to do more damage.

...the flip side of the Mohammed release is the terrible case of the Uighurs, who have done nothing wrong but who are not able to get released. An appeals court blocked their transfer to the United States this week.

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.

We Can't Have The Attorney General Following Laws

As you may know, John Cornyn has led a revolt that would delay the confirmation of Eric Holder in the Senate Judiciary Committee for at least a week, citing the fact that he might actually prosecute people who have committed crimes, which is simply off-limits to Beltway thinking (at least for people of import, he can prosecute all the poor people he wants for shoplifting, but at war crimes Cornyn draws the line):

Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, convened the panel Wednesday and asked for an immediate vote to send Holder's nomination to the Senate. Republicans called for a one-week delay, permitted by committee rules.

Holder told the Judiciary Committee last week that waterboarding is "torture" and therefore illegal. Susan J. Crawford, the top Bush administration official overseeing the trials of detainees, told the Washington Post that at least one individual held at the prison center at Guantanamo Bay was "tortured."

The question Republicans want answered before Holder is confirmed: Will you prosecute those who took part in that torture?

Sen. John Cornyn (R-Texas) said that he would block committee proceedings, scheduled to resume at 2:30 pm on Wednesday, if he did not receive answer from Holder. "I'm not going to allow things to proceed," he said. He added that it was "physically impossible" for Holder to get the answers to him by then, thus assuring a conflict would ensue [...]

"Part of my concern, frankly, relates to some of his statements at the hearing in regard to torture and what his intentions are with regard to intelligence personnel who were operating in good faith based upon their understanding of what the law was," said Cornyn.

Well, at least he didn't bring 9/11 into it in a blatant attempt to scaremonger... I'm sorry, what was that next paragraph?

"There were provisions providing immunity to intelligence officials based up on good faith and what they understood the law to be," said Cornyn. "I want to know if he's going to enforce congressional intent not to second guess those things in a way that could jeopardize those officials but also could cause our intelligence officials to be risk averse -- the very kind of risk aversion...that the 9/11 commission talked about when they talked about what set us up for 9/11."

Ah, Republicans. Proudly using victims of terror as a human shield for going on eight years.

I don't need to recapitulate the arguments made by Tom Ricks, Paul Krugman, Keith Olbermann, the UN special rapporteur on torture, and others. We need a reckoning for torture because if we don't, the successors to this legacy will do far worse in the name of national security; we need to "look back" because it's the basis for jurisprudence and we can't prejudge who or who not to prosecute absent all the facts; we cannot listen to the Beltway insiders who want to protect their friends by saying that ignoring clear crimes is very "appropriate"; etc. I would simply say that Holder would be breaking the law if he DIDN'T prosecute.

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture. . . .

That's from the Convention Against Torture, and it's pretty unequivocal. We are legally obligated to prosecute acts of torture, and "promising not to" is as much a crime, under this statute, as the torture itself. As to the argument that top Democrats are complicit in these actions and a Democratic Administration and the whole thing would have a look of a show trial if they were forced to admit that they were aware of but didn't object to these abuses, that's what an independent prosecutor would be for. And by the way, one of those top Democrats assumed to have been read in to the torture policy is open to prosecution, kind of blowing that theory out of the water.

The glib and cynical establishment press, desperate to protect their friends and defend THEIR OWN moral complicity in these crimes, may think this is a legitimate stand to take, but it only reveals their own moral hollowness.

To the standard Washington reporter, nothing is more contemptible than those who want to hold political leaders accountable -- and that fact is as potent a reflection of how diseased our political culture is, since journalists, in theory, ought to be those leading the crusade for such accountability, not leading the lynch mob against citizens who are demanding it. Yet since the zombie-like march behind the Leader during the run-up to the attack on Iraq, there hasn't been a more complete, virtually lockstep consensus among our media class than their vehement opposition to investigating the crimes of our political leaders.

Heck, even Lindsay frickin' Graham understands that no Attorney General could vow to rule out prosecution in a blanket fashion absent knowing what has been committed. He still thinks that "criminalizing policy differences" would be bad for the country, which is absurd, but he at least has enough sense to know that ruling out prosecution of a crime is not really an option for the nation's chief law enforcement officer.

All told, the Republicans don't have the votes to stop Holder, so this is a delay tactic at best. Why? Emptywheel has been working on her theory for a while now, and it's starting to make sense:

Two and a half weeks ago, bmaz predicted that the Bush Administration would appeal Judge Vaughn Walker's ruling requiring the Bush Administration to turn over a document that likely proves they violated FISA by wiretapping American citizens. Sure enough, on Friday and Monday, they did so [...]

Between that appeal and Arlen "Scottish Haggis" Specter's highly unusual one-week hold on Eric Holder's nomination yesterday, it sure does look like my theory--that Republicans are trying to delay the time when a Democrat takes over DOJ and starts reviewing Bush Administration actions and considering prosecutions.

In particular, I believe, they are delaying Holder's nomination to shorten the time between the day Holder takes over and the day the statute of limitations on violations of FISA Bush committed on March 11, 2004 start to expire--that is, March 11, 2009, just seven weeks away.

It would certainly be interesting if this was not about torture at all, but the violations of FISA. Especially given the revelation from Russell Tice that the US Government has been monitoring every single communication made by an American for years.

OLBERMANN: Let's start with the review. We heard the remarks from Mr. Bush in 2005, that only Americans who would have been eavesdropped on without a warrant were those who were talking to terrorists overseas. Based on what you know, what you have seen firsthand and what you have encountered in your experience, how much of that statement was true?

TICE: Well, I don't know what our former president knew or didn't know. I'm sort of down in the weeds. But the National Security Agency had access to all Americans' communications, faxes, phone calls, and their computer communications. And that doesn't -- it didn't matter whether you were in Kansas, you know, in the middle of the country, and you never made a communication -- foreign communications at all. They monitored all communications.

OLBERMANN: To what degree is that likely to mean actual eavesdropping and actual inspection? In other words, if not actually read or monitored by the NSA, everything was collected by the NSA, recorded, archived? Do you have any idea to what degree the information was ever looked at, per se?

TICE: Well, it's actually, even for the NSA, it's impossible to literally collect all communications. Americans tend to be a chatty group. We have the best computers at the agency, but certainly not that good.

But what was done was a sort of an ability to look at the meta data, the signaling data for communications, and ferret that information to determine what communications would ultimately be collected. Basically, filtering out sort of like sweeping everything with that meta data, and then cutting down ultimately what you are going to look at and what is going to be collected, and in the long run have an analyst look at, you know, needles in a haystack for what might be of interest.

We have never fully known the extent of this lawlessness, and any delay in Holder's confirmation will keep Americans in the dark that much longer, if he chooses to exercise his prosecutorial discretion at all. If he does not, we may have to rely on lawmakers like Sheldon Whitehouse to offer the reckoning that this nation so desperately needs.

Our new President has said, "America needs to look forward." I agree.

Our new Attorney-General designate has said, we should not criminalize policy differences. I agree.

And I hope we can all agree that summoning young sacrificial lambs to prosecute, as we did after the Abu Ghraib disaster, would be reprehensible.

But consider the pervasive, deliberate, and systematic damage the Bush Administration did to America, to her finest traditions and institutions, to her reputation and integrity.

Read the whole thing.

History's Greatest Monster: Bush authorizes arms shipments to Zimbabwe?

Here's the memo.

Now, I want to exercise some caution here. Last May, when a Chinese ship attempted to deliver weapons to Zimbabwe, two members of the SADC - Angola and Namibia - refused to allow the ship to unload the cargo on their docks. Eventually China gave up on delivering the payload. Last month, however, the Zimbabwe Times reported that two SADC members were allowing shipments through intermediaries:

Large quantities of weapons continue to be shipped to Zimbabwe via the Democratic Republic of Congo (DRC), according to a new report by the United Nations.

Logistical support from Zanu-PF leader Robert Mugabe’s close allies in the government and armed forces of the strife-torn DRC is crucial to this process, evidence obtained by investigators suggests.

The final report of the group of experts on the DRC, submitted to the UN Security Council last week, says it is possible that the Congolese armed forces “may also be exporting weapons and ammunition to other countries in the region”.

The UN report skirts the issue of the precise route by which the weapons arrive in the DRC. However, unverified intelligence documents seen by the Mail & Guardian suggest that at least two countries in the Southern African Development Community are allowing shipments from China to land for onward transport to Zimbabwe via intermediaries including the DRC.

So any weapons from the US may or may not reach Zimbabwean shores. And the new President could put a swift end to any deliveries by revoking this memorandum.

However, let's put that aside for the moment. On effectively the last day of his Presidency, George Bush has apparently decided to embolden a dictator, and possibly strengthen him with arms. This comes at a time when Robert Mugabe is quite literally killing his own people.

The health crisis in Zimbabwe should be the subject of an investigation by the International Criminal Court, campaign group Physicians for Human Rights says.

President Robert Mugabe's government is responsible for the collapse of the health, water and sanitation systems - violating human rights, it says.

With no functioning public hospitals, the cholera epidemic has killed far more than 2,000 people, it added.

The US-based group called for the UN to take control of the health service.

This must be part of that democracy promotion agenda - dealing weapons to a fellow perpetrator of crimes against humanity.

This absolutely can be stopped by President-elect Obama, but only with attention. Let's make sure that no arms get from American hands into the hands of Mugabe's thugs.

But let's also not forget what a sad commentary this is on a pathetic and broken man who couldn't even wait out the last days of his Presidency without bringing to the world more evil and death.

New Attorney General Rules

According to Jon Kyl, and I would imagine a substantial portion of the right, you cannot become Attorney General unless you unequivocally support torturing human beings.

KYL: I think Eric Holder will have some problems. He has not been able to stand up to his bosses in the past, President Clinton when he wanted to do pardons that I think Holder must have realized were big mistakes but he facilitated. And he’s also made some very unfortunate statements about our interrogation of prisoners, terrorists, and other things that lead me to believe that he is not going to be supportive of the Patriot Act, the FISA law, and others. And if he can’t be supportive of those laws, then he shouldn’t be Attorney General.

Got that? If you cannot be trusted to violate federal and international law, you cannot be allowed to become the nation's top law enforcement official. This is the looking-glass view of the world on the right.

And it infects the discourse. I would argue the reason for Obama's stilted rhetoric and the general reticence, outside of John Conyers, to prosecute the war crimes of the torture regime is that nobody in the establishment ever really pushed back in a coordinated fashion on the mainstreaming of torture, that allows for this kind of a statement by Kyl, which would have been almost nonsensical a few years ago. The Village got infected with war fever, goosed by the right, and they are only now coming out of it. And so Obama awkwardly tiptoes around ending torture because there are non-trivial political consequences for doing so. That's a very sad commentary on this country, but it's true.

Once we started having a debate in this country about torture, we made it tacitly acceptable. That was the original sin.

Boxer Calls For Independent Commission on Bush Torture

It's expected for a lawmaker in the beginning of a new election cycle to get a little more active, with high-profile articulations of positions on key issues. So it is for Sen. Barbara Boxer. In the past week, she has released a report on the statewide recession, featuring interviews with local officials from all 58 counties; demanding that Attorney General Mukasey intervene to reverse a "blatantly illegal" memo by EPA Administrator Stephen Johnson claiming that carbon dioxide is not a pollutant (the Supreme Court has already ruled that it is); and most interesting to me, wrote a letter to incoming Senate Foreign Relations Committee Chair John Kerry calling for hearings on the Bush Administration's use of torture, as well as an outside commission to investigate it:

I write today to raise an issue of the utmost significance -- the Administration’s use of torture against detainees held in U.S. custody. Despite widespread condemnation from Members of Congress, policy experts, and human rights advocates, Vice President Richard Cheney stated in a recent interview with ABC News that the torture policies used against detainees were appropriate and admitted that he played a role in their authorization. In fact, when asked if any of the tactics -- including waterboarding -- went too far, he responded with a curt “I don’t.”

I find Vice President Cheney’s response deplorable, particularly in light of a recent report released by the Senate Armed Services Committee following an eighteen-month investigation. In sum, the bipartisan report found that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.” The report, led by Senate Armed Services Chairman Carl Levin, concluded that “those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.” I fully support Chairman Levin’s proposal for an outside Commission with subpoena power to investigate this matter further.

The whole letter is here. This is one step away from the needed call for an independent prosecutor to investigate Bush's war crimes, but it's as close as any Senator has been willing to go. This suggests that Boxer considers an investigation of this nature to not only be the right thing to do in a democracy, but not electorally damaging whatsoever. She should be supported in this belief and encouraged to go even further. I know that Senator Boxer has begun asking for contributions to her re-election campaign. Maybe a series of contributions of $9.12, signaling support for a "9/12" torture commission and an independent prosecutor, along with emails and letters explaining this, would relay the message?

Wherein I Thank The Lord For A 9 to 5 Job

Boy, I guess I hadn't realized how much of a positive impact not seeing the national cable news shows during the day has had on my life. It's been nearly a year since I've been around during the day with the shoutcasts on in the background, and the editorial decisions they make on what is news just fascinates me. On this day, with the economy continuing to crumble, commercial real estate now looking for a bailout, and the incoming Administration's thoughts on both the size of the economic stimulus and the doubling of forces in Afghanistan coming into focus, the big stories are... Republicans like Peter King said bad things about Caroline Kennedy and Fourthbranch Cheney said bad things about Joe Biden? Wow, it really is like junior high school in media world. They're all frustrated theater directors, I guess, and they want to construct human drama using soap opera techniques instead of the consequential issues and actions that impact people's lives.

Nevertheless, it was good to hear the name "Joe Biden" on any cable news show, considering that he'll become the second in line to the most powerful job in the world. And it was even better to hear some of his views and responsibilities in that role. For example, he's going to be heading up a task force aimed at increasing the ranks of the middle class, which I'm fairly certain based on the policies of the last eight years was not a priority.

As vice president, Joe Biden will oversee an Obama administration effort to find ways of building up the ranks of the middle class, that ambiguously defined segment of society most Americans identify with.

The task force will include four Cabinet members as well as other presidential advisers, the Obama transition team announced Sunday.

The goal is to recommend proposals to ensure the middle class is "no longer being left behind," Biden said. The proposals could include executive orders and legislative plans.

"Our charge is to look at existing and future policies across the board and use a yard stick to measure how they are impacting the working and middle-class families," Biden said in a statement released Sunday. "Is the number of these families growing? Are they prospering? President-elect Obama and I know the economic health of working families has eroded, and we intend to turn that around."

The fact that progressive economist Jared Bernstein has been named Biden's chief economic advisor will be a great aid to this effort, and it's a very encouraging sign at a time when all we have are signs. So is the fact, chief to the cable shoutcast musings, that he fully rejects the unitary executive concept popularized by Bush/Cheney, and how that has played out in practice with respect to Guantanamo:

The vice president-elect said he would “restore the balance” to the office, and he offered his own critical assessment of Mr. Cheney, saying the vice president’s recommendations to Mr. Bush on the war and counterterrorism issues were “not healthy for our foreign policy, not healthy for our national security.”

“His notion of a unitary executive,” Mr. Biden said, “meaning that, in time of war, essentially all power, you know, goes to the executive, I think is dead wrong.”

Mr. Biden said that he was still committed to closing the American prison at Guantánamo Bay, Cuba, and that he remained critical of the Bush administration’s surveillance and detention programs, saying, “we have created, not dissuaded, more terrorists as a consequence of this policy.”

However, the news isn't entirely glowing. Biden uses the foolish "looking forward, not backward" construction when answering whether he supports prosecuting Bush Administration officials for war crimes, when of course only deterrence from committing those crimes will provide a bulwark to ensuring a future without them. He said that "The questions of whether or not a criminal act has been committed…is something the Justice Department decides ... that’s a decision I’d look to the Justice Department to make,” and hopefully that means he'd stay out of any DoJ investigations or indictments, but let's just say I'm not hopeful.

And his response to the Rick Warren controversy was similarly unappealing:

Barack Obama said you've got to reach out. You've got to reach a hand of friendship across the aisle and across philosophies in this country.

We can't continue to be a red and blue country. We can't be divided like we have been. And he's made good on his promise.

And I would say to the gay and lesbian community, they have nothing to worry about. Barack Obama, every aspect of his life, every aspect of his public life, and every commitment he's made relating to equality for all people, will be things that he will stick with and that they should view this in the spirit in which he offered the opportunity to -- to Mr. Warren.

I eagerly await seeing Obama and David Duke appearing on stage together, in the spirit of reaching out.

Of course, MSNBC's Mike Barnicle told me I'm in the minority on this argument based on my geography, saying on Hardball today that "If you take Cambridge, the Upper West Side of Manhattan, Georgetown, Santa Monica and San Francisco out of the argument, there is no argument." Of course, it's just an axiom of faith that alienating millions of key supporters is a universal good. That's how the media reported it on the few occasions when Bush moved against conservative orthodoxy, as on the Medicare prescription drug bill (at least on its face) and immigration reform, right?

Yeah, I don't remember seeing that either. In the Beltway you only get points for kicking the LEFT.

Step Into Marcusland

I finally got around to seeing Taxi To the Dark Side, the Oscar-winning, Peabody-winning documentary that looks at the death of an Afghani cab driver in US custody at Bagram Air Base and expands out to study American detainee policy during the war on terror. There's nothing in there that you didn't know if you've read the articles, the magazine profiles, the books and the official reports about our torture policy. But it's laid out in an almost lawyerlike fashion, a brief for the crimes committed in our name since 9/11, crimes that do make Americans and (especially) American troops less safe, extract misleading and frequently wrong intelligence, and debase us all by acting contrary to American values and principles and lowering our moral authority throughout the world.

These are the crimes that Ruth Marcus wants us all to ignore, by acknowledging that people like Don Rumsfeld and Dick Cheney were doing their level best to keep us safe, and whether they ignored federal law and international conventions in the process should be overlooked. Despite the fact that, just this week, a Senate Armed Services Committee report emphatically charged top officials inside the White House with creating the conditions for and authorizing the practice of torture in Afghanistan, Guantanamo, Abu Ghraib and secret CIA prisons abroad, according to Marcus (and I would imagine the bulk of the political establishment) these crimes should be ignored, not because they weren't illegal but because of who the people were that conducted them. This is what Marcus brushes aside:

It said these top officials, charged with defending the Constitution and America’s standing in the world, methodically introduced interrogation practices based on illegal tortures devised by Chinese agents during the Korean War. Until the Bush administration, their only use in the United States was to train soldiers to resist what might be done to them if they were captured by a lawless enemy.

The officials then issued legally and morally bankrupt documents to justify their actions, starting with a presidential order saying that the Geneva Conventions did not apply to prisoners of the “war on terror” — the first time any democratic nation had unilaterally reinterpreted the conventions.

That order set the stage for the infamous redefinition of torture at the Justice Department, and then Mr. Rumsfeld’s authorization of “aggressive” interrogation methods. Some of those methods were torture by any rational definition and many of them violate laws and treaties against abusive and degrading treatment.

These top officials ignored warnings from lawyers in every branch of the armed forces that they were breaking the law, subjecting uniformed soldiers to possible criminal charges and authorizing abuses that were not only considered by experts to be ineffective, but were actually counterproductive.

Marcus somehow rationalizes her leniency by claiming that the important thing now is to "make sure this never happens again," not to prosecute the crimes of the past. And yet, as Glenn Greenwald lays out in only the way he can, only through prosecution can we deter top officials from this behavior. The laws are already in place. The determinations about liberty and security have already been made. If Bush officials are allowed to go free, like the many White House officials before them in Administrations past, what becomes learned behavior is that high crimes at the executive level will forever go unpunished. Here's Glenn:

...one of the two principal reasons we impose penalties for violations of the criminal law is deterrence -- to provide an incentive for potential lawbreakers to refrain from breaking our laws, rather than deciding that it is beneficial to do so. Though there is debate about how best to accomplish it and how effective it ultimately is, deterrence of future crimes has been, and remains, a core purpose of the criminal law. That is about as basic as it gets [...]

Punishment for lawbreaking is precisely how we try to ensure that crimes "never happen again." If instead -- as Marcus and so many other urge -- we hold political leaders harmless when they break the law, if we exempt them from punishment under the criminal law, then what possible reason would they have from refraining from breaking the law in the future? A principal reason for imposing punishment on lawbreakers is exactly what Marcus says she wants to achieve: "ensuring that these mistakes are not repeated." By telling political leaders that they will not be punished when they break the law, the exact opposite outcome is achieved: ensuring that this conduct will be repeated [...]

A central observation in Marcus' column is that the controversies that have now arisen over Bush lawbreaking in the areas of interrogation and surveillance are not new. As she points out, these are the very same controversies that we've been confronting for decades.

That's exactly right. The same controversies over government lawbreaking arise over and over. And why is that? Because our political leaders keep breaking the law -- chronically and deliberately. And why do they keep doing that? Because there is no deterrent against it. Every time they get caught breaking the law, the Ronald Reagans and Ruth Marcuses of the world step in to insist that they should not be punished, that the criminal law is not for elite leaders in political office, that those involved in the noble function of ruling America are too intrinsically well-intentioned to warrant punishment even when they commit crimes, that it's more important to look forward than back.

And those who committed these crimes clearly know this. That's why we're seeing Dick Cheney practically boasting about torturing terrorists, having the audacity to call it the moral thing to do. In doing so he makes the same argument as Marcus; that he was doing whatever he could to protect the country from attack, and in those situations, the law does not apply in the same way, and nobody should suffer opprobrium for doing what he thought was right, as if the law is now subject to personal conceptions of right and wrong rather than the federal statutes and written code available to everyone. The lies that torture yields valuable information and saves lives
notwithstanding, what Cheney is saying goes as far as Richard Nixon's famous statement "If the President does it, then it's not illegal." Essentially, his plea is that "if I think it's necessary, then it's not illegal."

This is how we get to the point that the Vice President decides that he has the sole determination for what records he must release to the National Archives, which to some may seem like a smaller point, but is symptomatic of the same pathology - that the laws don't apply to him unless he decides they do.

"The vice president alone may determine what constitutes vice presidential records or personal records, how his records will be created, maintained, managed and disposed, and are all actions that are committed to his discretion by law," according to a court filing by Cheney's office with the U.S. District Court on Dec. 8.

Cheney is being sued by Citizens for Responsibility and Ethics in Washington, a government watchdog group that is trying to ensure that no presidential records are destroyed or handled in a way that makes them unavailable to the public.

The 1978 Presidential Records Act requires all presidential and vice presidential records to be transferred to the National Archives immediately upon the end of the president's last term of office and gives the archivist responsibility to preserve and control access to presidential records. The law ended the tradition of private ownership of presidential papers, opening White House records to the public and historians.

So here we have a Vice President who has no problem torturing, wiretapping on American citizens, detaining suspects without charges for years, rendering others to countries we know torture, outing CIA agents for political retribution, eliminating habeas corpus and nullifying the Geneva Conventions, and he gets to shred every document he ever wrote and paper over this shameful history. Meanwhile, those brave enough to speak out about these offenses upon the Constitution and the dignity of the office are harassed without end, with their lives nearly destroyed, for intending to uphold American law. This is the topsy-turvy dynamic we have in a country where accountability is removed at the highest levels. This is Marcusland.

As Digby notes, this is a self-perpetuating cycle that insures those Republicans who get back in the White House are more radicalized and more contemptuous of US law because there is no consequence to the radicalism.

In fact, I have long argued that most of the past 35 years have been one long, horrific orgy of undemocratic political thuggery and conservative usurpation of the constitution. They get caught, they suffer some temporary public disapprobation, people like Feldt are caught in strange moral quandries, we define democracy down, but there is never any official sanction. It's become so common that we now this as a natural part of our politics --- the Republicans seize power, they use it in illegal and undemocratic ways, they are exposed, the Democrats win, they fail to hold them accountable and the cycle starts again. (Why, if we didn't know any better, we might think they were all in on it together! Heavens...) [...]

This all began with Nixon and the pardon, in my opinion. Many of us, myself included, believed as Marcus and Taylor still do, that forgiveness is a good thing, that the country needs to heal after a tumultuous time and there is no purpose in dragging people through the mud. But I was wrong then and they are still wrong today. How many times do we have to be hit over the head with this stuff before we realize that these people are getting more and more radical with each successive bite at the apple?

This time around, the depth of the radicalism, the breadth of the war crimes, are so astonishing, that at least some circles are arguing that war crimes prosecutions are necessary to offer resistance to this lawlessness. Unfortunately, most of these rumblings are coming from the same people that have consistently argued the need to speak up and reject war crimes, and clearly the establishment has no taste for it. What's more, the Democratic leadership has been in various ways complicit in many of the crimes and certainly willing to enable the cover-up; in the Military Commissions Act, there are explicit instructions to pardon the President and his top officials for any crimes committed in detainee treatment from 9/11 to the present and to continue the CIA detainee program that we know to be criminal. But in the absence of any attempt at prosecution, or at the very least a Truth and Reconciliation Commission, this doctrine will be the lasting legacy of not only this Administration but all of those in the future, and we will have lost our democracy.

On Fox News Sunday today, host Chris Wallace asked Vice President Cheney, “if the President, during war, decides to do something to protect the country, is it legal?” “I think as a general proposition, I’d say yes,” replied Cheney.

Of Course You Know, This Means War Crimes

I read with interest Digby's post about potential Congressional inquiries into Bush Administration abuses, as well as Bush's own efforts to pre-emptively pardon his whole team and use executive privilege even after leaving the White House. I agree that this is an unlikely course of action for a President-elect already sounding notes of bipartisanship and unity, as well as a Congress which hasn't mustered the courage to challenge Bush on much of anything during his reign. Obama's as much as said this:

In addition, Mr. Obama has expressed worries about too many investigations. In April, he told The Philadelphia Daily News that people needed to distinguish “between really dumb policies and policies that rise to the level of criminal activity.”

“If crimes have been committed, they should be investigated,” Mr. Obama said, but added, “I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”

You'd have to basically play dumb not to assert that crimes have been committed. Based on what we already know, before launching the first investigation, we have a clear sense of what to call the abuses that have taken place. They are war crimes.

There are bound to be casualties when any nation veers from its domestic and international obligations to uphold human rights and international humanitarian law. Those casualties are etched on the minds and bodies of many of the 62 former detainees interviewed for this report, many of whom suffered infinite variations on physical and mental abuse, including intimidation, stress positions, enforced nudity, sexual humiliation, and interference with religious practices. Indeed, I was struck by
the similarity between the abuse they suffered and the abuse we found inflicted upon Bosnian Muslim prisoners in Serbian camps when I sat as a judge on the International Criminal Tribunal for the former Yugoslavia in The Hague, a U.N. court fully supported by the United States. The officials and guards in charge of those prison camps and the civilian leaders who sanctioned their establishment were prosecuted—often by former U.S. government and military lawyers serving with the tribunal— for war crimes, crimes against humanity and, in extreme cases, genocide.

Patricia M. Wald, the writer of that foreward, served on the DC Court of Appeals and the International Criminal Tribunal for the former Yugoslavia. She was also appointed by the Bush Administration to serve on the President’s Commission on the Intelligence Capabilities of the U.S. Regarding Weapons of Mass Destruction. This is not a DFH. This is a jurist who has examined the evidence.

So when people like Robert Litt seek to excuse these actions by the executive, it's very clear what they are excusing - war crimes.

Obama will have to do a careful balancing act. At a conference in Washington this week, former department criminal division chief Robert S. Litt asked that the new administration avoid fighting old battles that could be perceived as vindictive, such as seeking to prosecute government officials involved in decisions about interrogation and the gathering of domestic intelligence. Human rights groups have called for such investigations, as has House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).

"It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," Litt said. "It would really spend a lot of the bipartisan capital Obama managed to build up."

If you're arguing that Bush Administration officials should be shielded and protected from prosecution in the name of comity and bipartisanship, you are saying that war crimes aren't actionable if the President or his staff commits them. Which is fine if you're Richard Nixon. But that's not the model people had in mind on Election Day, I gather.

Despite the persistent belief that partisanship is corroding the body politic, actually it's quite the opposite. It's "bipartisanship" - or at least the phony rhetoric of it, which is always practiced against progressive change and for the status quo - that has destroyed the rule of law in this country. As Glenn Greenwald notes:

This brazen defense of lawlessness articulated by Litt is now as close to a unanimous, bipartisan consensus across the political establishment as it gets. This is what has been advocated by everyone from David Broder to top Obama adviser Cass Sunstein. There are few things more difficult than finding someone of prominence in the establishment that disagrees with this view. Our political class has decided that high political officials -- particularly the President and those closest to him -- are literally exempt from the rule of law.

Nobody believes that "policy differences" should be criminalized. That's a strawman -- an obfuscating term -- erected by those who are defending presidential lawbreaking license without having the intellectual honesty to admit they're doing that. This is about having laws in place that clearly and explicitly say that "X shall be a felony," only to then watch as the President does X, and thereafter have our political establishment announce that it's more important to avoid partisan anger than it is to hold high political officials accountable under the rule of law.

Here, X = "eavesdropping on Americans with no warrants," and "torturing detainees," and "destroying evidence relating to investigations," and "interfering in criminal prosecutions for political purposes." Those are crimes -- felonies -- in every sense of the word, not policy differences. And they are all actions in which Bush officials have clearly engaged [...]

As political scientists have documented, one hallmark of tin-pot tyrannies is the belief that political leaders should be liberated from the constraints of law as long as that helps to achieve good results. That's the defining mentality of those who crave benevolent tyrants -- our Leaders have so many Good and Important Things to do for us that they can't be distracted and weighed down by abstract luxuries like upholding the rule of law. That's now clearly the prevailing consensus of our political establishment.

Again, I don't expect much movement against Bush Administration abuses. The moles inside the Justice Department would probably obfuscate and leak and embarrass if anything was attempted, and by the way key Democrats are implicated in the abuses through their complicit silence. In fact, this Robert Litt character himself is defending intelligence officials in ongoing lawsuits and may seek to benefit from a lack of prosecution against his own clients. But it would be nice if anyone owned up to the truth - that "moving on" and "healing the divisions" of the previous eight years is tantamount to a get out of jail free card for war crimes.

People Got The Power

Digby called attention to this stunning excerpt from Jane Mayer's new book, where she reveals that DoJ lawyers (and from context, this could be Jim Comey and Jack Goldsmith, two extremely high-level officials) were speaking in codes because they suspected their government was wiretapping them to determine their motives. It's really only the latest in a long, long series of outrages, and it's not even the most amazing one of the week:

As long as CIA agents could convince themselves they were not deliberately inflicting severe pain or suffering on detainees, they were free to do virtually anything in their questioning of suspected terrorists, including waterboarding. Furthermore, the agents' belief they weren't in fact torturing their captives didn't even need to be "reasonable."

These are the implications of a controversial August 2002 memo from the Justice Department to the CIA that was released Thursday. The American Civil Liberties Union obtained several internal Bush administration documents it says authorizes the CIA to torture detainees.

We have faith-based initiatives, a faith-based economy, and now here is faith-based torture, a transparent attempt to shield interrogators and their minders at the highest levels from prosecution for war crimes.

And we all know that torture just scratches the surface, if that can be believed. Slate has now put together an interactive guide to all the lawbreaking. The very fact that you can make a rich media interactive guide is enough to make you vomit. While more and more information leaks out every day, there's certainly enough to make a credible case for just about any prosecution you can imagine. The question, of course, is: will there be any justice?

On Friday, the House Judiciary Committee held a not-impeachment hearing. They literally couldn't use certain words that would suggest the President or his staff lied, broke laws, or violated the public trust. Just informational and all that. It was very prim and proper, and while Democrats and Republicans and libertarians alike testified to the scope of the unconstitutional rogue Presidency under which we've all lived since January 2001, and allies like the ACLU praised the first step, let's be honest - in the accountability-free culture of Washington, holding a hearing that avoided the word "impeachment" or indeed any kind of responsibility for the actions outlined, is about as far as anyone wants to go.

If you're looking for accountability, it's highly unlikely that you'll get it from either potential incoming Administration. Cass Sunstein's interview on Democracy Now put an end to any hopes of that, rejecting prosecution for "non-egregious" crimes that would amount to the criminalization of politics. Anyway, the Military Commissions Act effectively nullified any opportunity for War Crimes Act prosecutions domestically. And since the conservative movement goes apeshit at just the hint of accusing these guys of what they've admitted to doing, there's little chance any Democrat will have the stomach for following through.

And yet, there are other intriguing possibilities. The very fact of this surfeit of lawbreaking has bred a new kind of Democrat, a reform-minded type who will run on - and possibly win on - accountability. If we had 20 Alan Graysons in Congress, you bet something would happen.

Alan Grayson: I'm Alan Grayson, and I'm the Democratic candidate for Congress in Florida's district eight. And I'm the attorney of record in every single case now pending in Federal court involving war profiteers in Iraq. These are cases in which I represent whistleblowers. The Florida civil rights association named me Humanitarian of the Year for my work in this regard, taxpayers against fraud named me lawyer of the year, and I've been featured in Vanity Fair magazine, in media like CBS evening news, 60 minutes, and even Dailykos, imagine that.
I'm running because I'm fed up with the government mismanagement, the Bush administration's shameless pandering to war profiteers. I think they set out on a deliberate course to make this war good for the people who were their friends. And I want to try to hold them accountable when I'm in Congress. When I'm in Congress... the Bush administration's worst nightmare is going to be me with subpoena power because I know everything that they've done, and I'm going to hold them accountable for it.

Matt Stoller: But wait wait, let me just interrupt you there, the Bush administration's gone in 2009.

Alan Grayson: Oh but all the people they set up as the new kings and queens of America are still around. What Eisenhower said, that we need to fear the military industrial compex, has become true because they have manufactured a five year war that they want to perpetuate for a generation or even a century so that they can keep lining the pockets of their friends, the war whores.

Matt Stoller: So, people are going to say, let bygones be bygones, or let's have some sort of truth and reconciliation commission, what do you think needs to happen?

Alan Grayson: We don't need truth and reconciliation, we need punishment. We need people to be held accountable for all the mistakes that they made that have screwed us up in this war and screwed us up in this economy. The economy is falling apart, the chickens are coming home to roost. You cannot spend $10,000 for every man, woman, and child in America for a war that never should have taken place in the first place.

Right on. Now how this manifests itself is unclear, but there is talk of a 21st-century Church Committee to relentlessly investigate and bring to light the worst abuses of the past eight years, and with someone like Grayson involved in it there's at least hope that the road leads to prosecution instead of admonishment.

But I prefer actions like this:

New Zealand students protesting the Iraq war offered a reward to anyone who carries out a citizen's arrest of Secretary of State Condoleezza Rice during her visit to the country Friday.

The Auckland University Students' Association is seeking Rice's arrest for her role in "overseeing the illegal invasion and continued occupation" of Iraq, Association President David Do said. The group is offering a $3,700 reward.

And this:

Des Moines police arrested four people Friday who attempted a citizen's arrest of former White House adviser Karl Rove.

Rove was in Des Moines to speak at a fundraiser [...]

The four accused Rove of election fraud and conspiracy to commit offense or to defraud the United States in the time before the Iraq war.

Now on the surface it appears that actions like this are futile, just a way for protesters to vent and make Administration officials' lives just a smidge less comfortable. But let's face it. Though a new Church Commission or a wave of reformers would be nice, the idea that Bush and Cheney and Rumsfeld and Feith and Wolfowitz and Rice and Rove will get anything approaching their just consequences for what they have done is remote (though that's no reason not to keep pushing). However, there's a cumulative effect, I imagine, to the spectacle of people being arrested for trying to serve you with a summons everywhere you go for the rest of your life. I guess the Amish culture has shunning, and this is the opposite. I'm well aware that these people aren't well acquainted with the concept of shame. But the idea that forever more, they will have to run from one car to the next, have to use subterfuge to escape criminal prosecution abroad, can never walk down the street in comfort, and need to always look over your shoulder, is at least something. And one of these days, one of them will slip up. It's the equivalent of holding up a mirror, forcing these people to look at themselves for all their ugliness, forever. Aside from the psychological impact, it builds the movement for accountability. And it keeps the signature issues - torture, illegal spying, lying in service to endless war, extreme executive power - in the spotlight, so that the next set of conservatives won't be able to enter the White House so stealthily. The goal here is to prosecute, of course, but also to discredit, to nuclearize, to keep these actions out of the memory hole. We cannot do any less.

Accountability Moment

Yes, finding Radovan Karadzic was a great day for human rights. He was the leader of the Srebenica massacre, and his arrest shows that the International Criminal Court can be effective in bringing fugitives to justice through pressuring member nations and rallying the international community.

The United States is not a signatory to the ICC, as George Bush is always keen to point out. And as Charlie Savage wants us to know, the White House may not wait before assuring that the war criminals inside its walls cannot be charged with any crimes domestically.

As the administration wrestles with the cascade of petitions, some lawyers and law professors are raising a related question: Will Mr. Bush grant pre-emptive pardons to officials involved in controversial counterterrorism programs?

Such a pardon would reduce the risk that a future administration might undertake a criminal investigation of operatives or policy makers involved in programs that administration lawyers have said were legal but that critics say violated laws regarding torture and surveillance.

Some legal analysts said Mr. Bush might be reluctant to issue such pardons because they could be construed as an implicit admission of guilt. But several members of the conservative legal community in Washington said in interviews that they hoped Mr. Bush would issue such pardons — whether or not anyone made a specific request for one. They said people who carried out the president’s orders should not be exposed even to the risk of an investigation and expensive legal bills.

I don't think they'll lose any sleep over the public assuming guilt, as long as they're kept far from the jails. The usual suspects are quoted in the article, including Victoria Toensing, the featured bobblehead for the White House during the Plame case. And we've already seen the Village pronounce that there ought to be no accountability for war crimes, torture, rendition, indefinite detention, or any of those mere trifles. After all, Bush's re-election in 2004 allows him to do whatever he wanted, right? It's that whole "accountability moment" thing. The courts simply don't have the jurisdiction of a random election 4 years ago.

Is there any doubt that this will happen, either on Christmas Day or New Year's? After all, like father, like son.

Big Picture On Torture

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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