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October 02, 2007

Comments

If I remember correctly, 60 Minutes also has a report about the theft of armaments from the al Qaa Qaa ammo dump ready to air at about the same time that the TANG report aired. And that the furor over the TANG report caused CBS to can the al Qaa Qaa story.

September 26th, 2003 Jack Goldsmith saw (via video cam) Hamdi in the fetal position on a cot in Norfolk. It was part of a round robin of tortured that the DoJ/DoD sent lawyers on. They also saw Padilla, and Gitmo by way of a Gulfstream jet. Haynes, Addington, Philbin, Rizzo, Alice Fisher (now head of the criminal division at the DoJ) along with several DoD lawyers did the circuit in 1 day.

Goldsmith was still working for the DoD at the time. It was a pivotal day for him: even though he had been working for Haynes (one presumes in the area of torture), Goldsmith looked at Hamdi and thought, 'this is what habeaus corpus is for'. Goldsmith says he was embarrassed at the squishy sentiment. Guess those government junkets are good for something. Pages 99-101, 'The Terror Presidency', Goldsmith, WW Norton, 2007

I thought maybe we should look at the timeline not only for Hamdi, but Padilla, and testimony before Congress regarding Gitmo. Remember how they were supposed to be getting 3 squares, a cot, a toilette, a Koran and were all happy campers? Goldsmith is positively frightening about how non state actors are allowed to be handled. The 3rd Geneva Convention is there for a reason, and this administration called it 'quaint' for a reason.

EW, I think you have the wrong link up for Tim Grieve. Your "this article" link goes to today's Glen Greenwald column, and while it's a good read, it doesn't go where you wanted it to go.

EW, I think this is the article you wanted, Trust Us from May, 2004
http://dir.salon.com/story/news/feature/2004/05/17/trust/index.html

Trust Us

The photo will get rid of illusions that you thought you'd dispelled long ago.

Thanks seamus--I think the link is fixed.

Off topic: Marcy, did you see the SJC hearing yesterday with Jack Goldsmith? I only caught small pieces of it rebroadcast last night, as I had been watching Erik Prince for the time I had available. I heard Sen. Whitehouse mention that he had gotten a lot of information by reading Goldsmith's book, which I haven't read. There doesn't seem to be much in the news about the hearing (except for TPM). One interesting thing I saw was when Whitehouse was asking about Comey's mad dash to the hospital. He asked Goldsmith why Comey would race over in his car, using his flashing lights for the first time ever, and then literally running up the steps to the hospital room. I think he said Comey took the steps two at a time, or something like that. Goldsmith answered that it was a very important issue, but Whitehouse got little more than that out of him. It was an interesting exchange. I wondered if there was more to it. Whitehouse has become one of the most interesting members of the panel to watch.

YES!!!!!!!

This is what I have been saying about the Clement arguments on these cases.

It is very clear that either he made knowing misrepresentations to the court OR
that he and the Sol Gen office played ostrich while they prepared their arguments and completely failed to exercise any due diligence and made their arguments in bad faith with no underlying investigati OR
that people lied to the Sol Gen office.

But there has been zero investigation of this. IMO it may be a part of the reason Clement didn't get the nod over Mukasey - because hearings might have opened som doors that they want to stay shut. Not likely - because I swear I've never seen anything so disheartening as the rush by Senate Dems to fall over themselves fawning over Goldsmith and Comey, but still - someone might have dug deep and actually asked a pointed question or two.

Some of these things are why Clement was my pick originally for the "not everything we've done has been illegal" slot. I think this incident may also tie to why no one really wanted to involve Clement that much in what was going on with the surveillance fiasco. Someone was going to have to inform the FISC that they were going to do something that possibly a) FISC had said they couldn't do (for example, ask for the court for what would in essence be a nunc pro tunc order/warrant on something where they knew they would be turned down) and/or b)involved specificity that they didn't really want the Sol Gen to have about "teh program" so that if and when he went to oral argument he could do a repeat performance on bad faith arguments, but with no pictures qued up this time.

Clement and Comey were the two who were willing to go to Mukasey and tell him his prior ruling on Padilla sucked and he was wrong and shouldn't let the man have a lawyer. Clement and Comey were the two who would do it and Mukasey publically belittled just how bad their arguments were.

Also, when you examine the hospital showdown, keep in mind some of these events playing out in the time frame leading up to that showdown - those are some of the reasons I think issues of personal liablity (which Goldsmith said obsessed all of them at DOJ) had to have had an effect.

For example, not only did you have Clement going and arguing Padilla and Hamdi and the court shocking DOJ by seeming to be hostile to those arguments (which set up Comey's later Padilla press conf that was held right before the court issued its decisions) but then Clement's arguments being shown to be pretty largely skirting the truth by both the Abu Ghraib pics and ALSO by the May report issued on the SO. Car Brig (a report, not declassified until recently but which would have been available to Sol Gen arguing Padilla's case and DAG getting ready to have a presser which starts off by saying it involved all kinds of review from DOD, DOJ, intel etc.) The May report said the Geneva Conventions were being violated and the May timing seems to have been conveniently after the oral arguments.

Also, in January before the hospital showdown, Maher Arar filed his torture victims act lawsuit and named, specifically, the top lawyers at DOJ - - Ashcroft and Thompson (who had been DAG at the time Arar was rendered to Jordan for ultimate disposition in a torture cell in Syria and who had specifically signed off on the paperwork to send Arar there).

Back then, that lawsuit got no attention, but someone might have been thinking that, if America really still was a nation of laws, that some torture conspirators who had been friends, pals and buddies might start to have "problems" And you can see, too, why the elections were so important in that scenario.

What if a new administration came in and real prosecutors who believed in the law - not craven Bushies - decided to clean up the department and go after those who committed crimes within its halls?

Suddenly, the decisions on breaking the law became a bit more personal. Not just a "legal opinion" for which the worst that would happen would be a "hey, so I guess I was wrong" but instead a situation of victims lining up, civil and criminal charges a possibility, and investigtions that would, even if something like an olc opinion ultimately insulated at the criminal level (and IMO that's very dubious unless we have judges willing to publically say the Nuremberg defense should have worked after all - and these days, we may have that), expose the depths of the depravity and opened the door for more.

sailmaker - is that reference to Sept 26th from Goldmsith's book? Remember the efforts to try to get info on Fisher and torture before her nomination? Well, kinda efforts by a couple at least - not like Democrats as a whole or even as a majority of the Dems seemed to give a damn about torture. IIRC, Townsend was down for visits to GITMO too.

Once upon a time, Our Country ripped in two, and our Military fought itself - Slave against Free.

At the end of hostilities, there were tremendous acts of military chivalry by both sides towards the other. Our Military came back together - in Honor - having settled the argument on the field of battle.

The matter was settled - Our guiding light is the Freedom of All - Our Military, from then on, would only fight for the Common Good.

And that's how we've packaged Our Wars ever since - We're fighting Oppression for the Freedom of All. The World Wars, Korea, Vietnam and even the 'Cold War' were all sold as steps in the global March of Freedom.

Even after being rudely rebuffed by Korea and Vietnam for our offer to 'help' them find their 'Freedom,' we still stumbled ahead with 'best intentions' to support Freedom for All.

Until Bush. The Wars in Afghanistan and Iraq are clearly Not based on Freedom for All. They are based on self-righteous, vengeful "How dare you!" Hate.

This is an Ideological Beat Down - that is being sold - sloppily - with any convenient bright, shiny object that keeps Literalists distracted from the inconvenient truth that "dark-skinned, far-away Muslims" are standing on Bush's Oil.

But, Our Military can't claim to be distracted by the bright, shiny objects - they know firsthand that this is about Control - not Freedom.

Gen. Myers covered-up and materially aided a false representation by Bush to the Supreme Court that 'We don't torture,' when, in fact, Gen. Myers knew about Abu Ghraib - which experts the World over say is clearly documented evidence of torture with a Capital 'T'.

Where is the Honor in that?

Gen. Pace has said, at least twice in public speeches, that some People shouldn't be in the all-volunteer Citizen Military because God Says So. Is there any other way to take that than he's an Ideology-first/People-second kinda guy?

Is this what Confusing Honor with 'Loyalty to an Ideology' looks like?

If so, We need to ask Adm. Mullen if we are witnessing an Internal Military Reversal of the Issue previously settled by Our Bloodiest War, Our Civil War?

Is Admiral Mullen, the new Chairman of the JCS, going to continue the six-year-old tradition of Myers and Pace by Fighting for the Boss over fighting for the Common Good?

But Abu Ghraib - which they are claiming was a few "rogue" operators isn't the issue, is it? Clement could MAYBE get by with his statements if they were.

Instead, though, you have all the things Haynes was authorizing as MI procedures, over the strong objections of Mora and JAG in each branch. You have soldiers being allowed to take hostages to effect surrenders (and the eventual sleeping bag torture death that resulted when one Iraqi general turned himself in to see his sons who were being held). You have the CIA interrogations - possibly assisted by local terrorists - of that General, which have been covered up in the record and which pretty clearly involved horrible abuse. You have all kinds of people ended up at GITMO and being subjected to all kinds of things at Bagram and then at GITMO. You have a Dilawar, being horrifically tortured to death by then. You have black sites up and operating for quite some time by 2004. You have DOJ's conspiracy collaberative decision to send Arar to Syrian torture.

It's not just Abu Ghraib by any means and there really doesn't seem to be any stomach, anywhere, for inquiry into what the Sol Gen's office knew about at the time of the oral argument. I've watched and have brought it up several times in several settings.

Also, by the time of Comey's presser, there is no way DOJ didn't know all about the waterboarding and torture of Zubaydah, the kidnapping of KSMs children etc. And you certainly have DOJ's knowledge of what the Sol Gen said to the Sup Ct. Back in my day, there was this thing called a duty to supplement the record when you found out that you might have potentially mislead the tribunal.

Instead - with the Comey presser - they set out to do exactly the opposite. Blow smoke of all kinds of at the tribunal, and at the same time cover up the then known abuses that were ongoing and continuing to be supported and solicited by DOJ.

BTW - - as a complete nonsequitor but something I just have to get off my chest. WTH was going on with the questioning of Goldsmith by Leahy (who I love - even so) where he was asking Goldsmith if everything the Pres wanted couldn't have been authorized through Congress and Goldsmith was saying oh yeah, sure, if ONLY we'd come to Congress, then it really would have been all legal, but ya know, I cleaned it up as I could, etc. etc.

DID NO ONE READ JUDGE DIGGS OPINION ON THE "GOLDSMITH/COMEY CLEANED UP VERSION OF 'TEH PROGRAM'???

It's a post facto sanitization of the worst kind - and why anyone would expect Goldmsith - whose determination on his version of teh program was found to be unconstitutional by the only court to address it on the merits, and Goldsmith - who still thinks Hamdan was wrong bc he still thinks were never any protections for detainees (they were just playthings for King Bush and Nuremberg is just a geographic location) - - - wth would ANYONE be doing getting a legal opinion from that guy on whether Congress could have just authorized what Bush wanted and it would all be ok?

I swear they are all lying down and saying: break the law, no consequences, we'll just see if we can make gutless globs of glibness and call it an investigative record.

Beyond disappointing.

Hear hear Mary! I couldn't agree more. All these hearings are pointless if they are not followed up with prosecutions. And thus far, nada. I don't have a good feeling at all about any of this. I have seen no evidence yet that the Dems are serious about tackling these problems. They appear intent on only having endless hearings to sway voters opinions for 2008. It's beyond sickening.

phred @ 14:44

They will sway voters' opinions. Just not the way they intended those opinions to be swayed.

Those who don't - or won't - listen to constituents, get their tails primaried - and possibly get themselves kicked out of office.

An excellent point PJ -- thanks for that :)

I'm very late to this party ... however, CBS's hiring of investigator Rigler got my interest so I dug as deeply as the net allows and came up with way too many coincidences.

1. Retired FBI agent/pilot Rigler weighed in on 9/12/01 regarding the speed of the aircraft that hit WTC.
2. Rigler, now with his own firm G Force, Inc. in San Antonio, testified in 2006 as defense aviation expert in Moussaoui case.
3. Rigler named 08/24/07 as witness for airlines in their lawsuit against FBI based on his pre-9/11 knowledge of al Qaeda.

Please go to my SourceWatch article here for source links: http://www.sourcewatch.org/index.php?title=Erik_T._Rigler#Rathergate

Mary,
Yes, the September 26th, 2003 torture circuit is on pages 99-101 of Goldsmith's, 'The Terror Presidency'. At the time Goldsmith was working for Haynes at the Pentagon, and was a prosective employee at OLC. He says that there were about a dozen lawyers on this trip.

I got the feeling from the book that the whole administration had a giant case of 9/11 induced PTSD, compounded by being fed the daily threat assessments and Cheney's zero tolerance for any new incidents and it gets summed up in David Addington's, "if there is another incident, the blood of 100,000 Americans will be on your hands." They were in the bunkers mentally. They should have been able to function, to have the vision to see the outcome of their actions, but for whatever reasons, they did not. Yoo and Bybee were rubber stamping hacks at best, and Goldsmith was dangerous in his position because he was able to manufacture much better legal logic to back up Bush's illegal actions. Goldsmith is worth the read because he gives insight into the historical derivations of his thinking, and a flavor for the thinking inside the DoJ.

Since Goldsmith started the rethinking in 2003 of torture, detention, and FISA (amongst other things) it is important to keep up the time lines, so that when McConnell gets up to say that debates on novel aspects of FISA cost a soldier's life in May of this year, one can easily call it the lie that it is.

Coincidentally Sept 26th was Hamdi's birthday (he turned 22 that day), and Goldsmith's (40).

Thank you sailmaker. I can't really imagine buying Goldsmith's book any more than I can buying Tenet's book. His PR push shouldn't be the first time the public hears (and only the public buying the book) about the whirlwind tour-of-torture.

I think he's a shamefully bad example of a self-apologist who did and supported and assisted and solicited bad things. The blitz lately to try to carve out "good guy" slots for him, or Drum's effort to do the same for Bellinger, etc. - - they just don't compute with me. I understand that "know thy enemy" is a good gameplan, but I already know the pissant nastiness and disrespect of the law that you will find in Goldsmith's conceptualization of "international law." I've read the less fictionalized arguments he's made in "legal" writings.

If there was any real thought that anyone would be required to actually tell the truth and go to jail over what they did, it might be worth getting factual references like the one you lifted, but right now it's all just his own posturing to keep his position on the Right as the "smarter than Yoo" guy who is a solid conservative and solid supporter of virtually unchecked Presidential power - - and yet suck up *just enough* with is "golly, I kinda thought that wasn't good" now reported self realizations so that everyone on SJC hails him as a good guy.

If I'm going to read a trash novel, the sex won't involve helpless prisoners stripped naked and sodomized with whatever is handy as an interrogation technique and a bunch of Ivy league justifications for how that saved the world so we have to be able to do it, just with better "rules" so no one gets in trouble for it.

Not that I have an opinion.

And "shamefully bad example of a self apologist" isn't really, technically, what I meant to say - I just typed and hit post too fast. *g*

Mary - Goldsmith is giving the proceeds to charity. I think the government pissed him off when they accused him of being the leaker of the NSA wiretaps to the NYT, it cost him time and money to defend himself, ruined his reputation, and therefore he wrote the book.

Books like this one have opened my non lawyer eyes to a) the complexities and vagueness of the law b) the various interpretations of the law and c) the needs for changes to lots of laws. Because I lived through the 60s I did not 'get' that there was a real sea change in the 'post Watergate morality wave of laws', civil rights, and the retardation of executive powers. I thought we just went back to being the good guys we had always been (ode to 50's public education). I also missed that there was a significant backlash to the new 'morality'. One day someone will find that is a big 'N' on my forehead - N for naif - of course there are still people around who believe in gunboat diplomacy, regieme change in the service of empire, torture and wacking people who are not American in the service of corporate empire, and on and on.

Near the end of his book Goldsmith tells a joke about how the only thing worse than being demonized by the left, is being lionized by the left. I think he would have liked to be neither loathed nor lionized, he would have been content to be a prof at Harvard, if the government had not pissed him off.

I admit to buying Tenet's book - used for $1.00 ;)

Mary - As you probably recall, I thought the Abu Ghraib stuff would be very significant in Rather's theory of case even though it was not emphasized nearly as much as TANG in the complaint. At any rate, here are some random off the top of my head thoughts on this (read: I may change my mind as I delve deeper) that I related to EW previously. Am interested to hear your thoughts:

"The question regarding Clement at the Supremes is fascinating. The questioning did not
really go that way on this occasion, but the Supreme Court is pretty much an appellate court only, and this was a review from below on both Hamdi and Padilla. Questioning attorneys in front of them about factual subjects not within the record certified for review is not supposed to be part of the deal in an appellate court like SCOTUS as a general rule. And a real quick look at the syllabi of the two decisions does not indicate any reason to believe that the statements we are now discussing on the part of Clement in respopnse to Justice's questions at argument formed any basis for the decision by the Supremes. I am not quite sure what my exact point is here other than to apprise you all of the situation and the kind of unique circumstances here for whatever it is worth. If I had been Clement, and I knew about Abu Ghraib, and I had been so queried by the Justices, I would have couched any answer only in terms of the certified record for the case so as not to risk stepping into the shit. And if the Justices pressed, I would remind them that the only proper facts were those in the record. Clement was much more casual in the way he responded. He had an easy, and proper, out like I just described if he really knew about the Abu Ghraib and/or other specifics of known torture. This almost makes me think Clement didn't really substantively know.

As to whether the Justices themselves knew--or had heard--rumors about the Abu Ghraib torture, and whether that might be why they asked Clement questions; I thought about that too. Again, got to read more, but my initial inclination is that they knew no more than the diffuse stuff the rest of us did. Although they diverted "off the certified record" as I said above, said diversion did not look strained and was not that long. I would think that if they knew, it would have been more pointed, and they would have made much more of a ruckus since then, because they would have set a trap and the government walked straight into it. Hard to say. I don't think much glowingly nice of either of these sides right now, Supremes or Clement, and I am still thinking they were somewhat clean here. I dunno. Great questions though....

These are pretty initial thoughts. I need to read all the links, and maybe the full SCOTUS decisions to be more certain. I may be
missing something here too. I dunno.

Sailmaker - I would be willing to bet that not all proceeds are going to charity and that goldsmith is getting some money out of this, not to mention, I would think he got an advance. Secondly, he will get some tax benefit I would assume. Lastly, it makes for a nice (and false) warm and fuzzy PR gimmick to say "proceeds to charity" when, as stated before he is making some money somehow, and then will seek to rake on his next book which will come very soon. Goldsmith strikes me as pond scum; I am not buying a bit of the "American Hero" bullshit.

Phred - Go Pack!! Actually watched your Badgers too for some reason - was best game on at the time - you are on a roll so far this year.

And speaking of Barbara Comstock,

I'll remind you, Goodling was the protege of Barbara Comstock, who blackballed Eric Lichtblau for getting too close to the truth.

it seems that she was one of the flacks and advisers huddling with Erik Prince of Blackwater when he gave his reluctant testimony yesterday.

I don't think I am very clear when I talk about having to buy Goldsmith's book to get information on the torture and illegal surveillance programs conducted by Gov.

It's not that he's making or not making money - it is that he was a public servant and now says the public only has a right to know if they buy his book. That's just wrong.

And if a Grover Norquist charity is getting the proceeds or not - I don't see Goldsmith doing anything - not even tiny things - to assist the actual victims of the policies he helped solicit and carry forward and defend. I dunno - have he and Jim Haynes sent flowers to the Dilawar's family? By the time they buy a daisy for each Haynes-central approved blow that was landed on Dilawar, it might be cost-prohibitive.

I also don't think that there was really that much of a sea change on retardation of Executive power - I think the Executive grabbed power he never had and Congress stood up and said Stop It. Kind of like here:

http://youtube.com/watch?v=BYLMTvxOaeE

It's not that Congress diminshed Presidential power, it is that with the technological advances, the President began to operate against American citizens in a manner that would never have been allowed if it had to have been carried out openly - but since wiretaps and the like were so nicely damn covert and so many in the intel field were so willing to target other Americans, he thought he could get by. JMO

Near the end of his book Goldsmith tells a joke about how the only thing worse than being demonized by the left, is being lionized by the left.

Aww -isn't that sweet - I think he lifted that from Comey didn't he? Who said pretty much the same, as if it were so clever. Goldsmith and Comey are both very wrapped up in self-labelling. They are the "conservatives" the "good guys" etc. and they are the absolute epitome of the irresponsible egocentrics who will depend on others, like THEIR demonized version of "the left" to protect them, all the while spitting on the people who are willing to stand for something more than petty self interest. I laughed when Comey tsk tsked over how he just couldn't figure out how DOJ would ever survive if that mean ol girlie girl Monica had politicized it - with his own handprints all over torture cases and he wonders how DOJ survives a MONICA?!?

And put both comments in context. In the discussion of whether or not it was a good or necessary or right thing to do to stand up for law and for the Constitution, it doesn't matter a damn to Goldsmith or Comey over whether or not AMERICANS would demonize or lionize those activities. Only where "the left" would stand, so they can make a production of holding their nose if a DFH gets too close to them. I guess I've always been a bit of a civil libertarian, but never have I seen such efforts to demonize all of "the left" and to cast into that pit of demons anyone and everyone who doesn't take a loyal Bushie position on torture and law.

bmaz -

IIRC, a part of the factual record for review in both cases were the repeated gov assertions that all detainees were being treated humanely. But that's based on fading memory about various things written at the time and not any personal review of the record.

As I pointed out somewhere, by the time Padilla and Hamdi were being argued, Arar had already filed HIS torture victims act suit and in part I think Clement was trying to pave the way with the court regarding those types of recourse by victims of the US DOJ solicitations to maltreatment.

I also think that the very fact that the questioning took place showed it did have some impact on at least the justice doing the questioning. Here's the other thing I personally think and have floated by a couple of those who know more and haven't been completely shot down on.

I think that these "detentions" with abuse for those who were NOT taken on the battlefield and have not been charged are prohibited bills of attainder aka pains and punishments. I think that kind of unconstitutionality was on some minds at least and my guess is that Clement was partly prepared for that line of questions and that was somewhat where the emphasis on claiming that these people were not being abused.

As I said elsewhere, Clement could perhaps parse, even with Abu Ghraib if he stuck to the "rogue actors" line. But what else was going on by then and of which parts at least of DOJ had sure and certain knowledge?

Dilawar.

Arar.

The FBI was alleging abuses at GITMO. E.g. http://www.boston.com/news/nation/articles/2004/12/07/letter_complained_of_detainee_abuse/

KSM's waterboarding and blacksiting.

Kidnap/detention of KSM's children.

Blacksites.

Waterboarding and torture of Zubaydah

At a minimum the allegations of Binyam Mohammed

The ghost planes and renditions

etc.

So how could there be that much, even if piecemeal, knowledge out there at DOJ about so many things and just Forest Gump Clement just didn't know nuthin bout birthin no torture?

Plus - I like this:

http://www.legalaffairs.org/printerfriendly.msp?id=898

In a particularly blunt blog post titled, "Did the Justice Department Lie to the Supreme Court?" the University of North Carolina law professor Eric Muller called for a congressional investigation of Clement.

But soon after Muller raised his concerns, Clement's friends and colleagues began reaching out to set Muller straight. "I was privately assured by many people who knew or know Paul Clement that he's an absolute straight shooter and an up-and-up kind of guy, and not the kind of person to dissemble and not the kind of person to knowingly mislead the court," Muller said. "The people who came to me were actually people who were on the other side of the aisle. They were Democrats who had worked with him or known him." What struck Muller about the outreach was the way in which it went beyond the clubby rules of the Supreme Court bar, where practitioners are loath to criticize one another. "People were actually taking the initiative to contact me, in a sense reaching out to say, 'You've got the guy wrong,' " Muller said. "That's way beyond the call of club rules."

See, like Comey and Goldsmith - they turn to a part of the hated left to lend them a semblance of respectablity when they do very bad things, and then while they laughingly deride how awful it is to have "the left" say anything nice about them (like grade schoolers obsessed over cooties) they use those nicely said things to save their own butts.

From the same article, discussing a not-very-nice incident involving a murdered woman and the Revue poking fun at her, there is also this aside, ...the Revue authors poked mild fun at [Clement]for arrogance, using mock footnotes: "See CLEMENT, I Can Explain Anything with a Graph, in THE ANALYSIS IS EASY ONCE YOU ASSUME AWAY THE HARD STUFF 54 (1992)

I tend to think that someone put their finger on Clement's legal pulse with the "once you assume away the hard stuff" and Goldsmith et al as well. Once you assume you're just the good guys who won't be adversely using power, then the answers are easeier, aren't they?

As to who looks good or not, here's part of my take. First, I think the questioning was a pretty logical extension of Clement's argument that, not just could these people be detained like with a POW camp, but that they could then be hidden from the IRC and all kinds of other things including no habeas rights. I think the standard response on that would be - how do you know bad things won't go on behind the closed doors. It's the spinoff of "democracy dies behind closed doors" that has been a frequent theme in the Court.

And the Justices, whether they hate or love international law aspects, all I am sure were aware of rulings by Israel's Sup Ct that hidden away detainees were being tortured and that court weighed in prohbiting torture, even with the daily violence that faces Israel.

But here's where I think things really fall apart. AFTER the oral argument, one of the things that happened is that Comey & Co. purportedly conducted this exhaustive research into Padilla's case, including all kinds of classified info. They then supposedly fought the good fight to get info declassififed so Comey could make his reassuring Press Conf that Bush is a swell guy who made the absolute right decision to blackhole and torture an American citizen for years without charges.

As a part of that investigation, there is flat out no way they didn't learn about Zubaydah's waterboarding and torture. No way.

Did anyone supplement the record of Clement's statements to the Court? Did they say - uh, about that "no torture" thing, um, well, we still say Abu Ghraib was just some rogue criminals and not the Executive, but uh, yeah, ya know, I guess we do actually torture now and then.

That's without even going into all the rest of the things that chunks of DOJ knew about -once Clement's statements to the Court became public, then anyone at DOJ who had direct knowledge to the contrary is responsible for not coming forward to correct the misrepresenations to the court, IMO.

And there were lots who knew.

we

Mary - I am pretty much with you on all that. I need to do more reading to reacquaint myself with specifics and timeframes, but pretty much agree with the weight of all you say. As you know, I harbor no good feelings for any of these jerkoffs and pretty much assume that anytime they look to have done something positive, it is either a lie/fraud, or is a token false front to cover their real complicity and duplicity. And, again, I am pretty sure you know that view includes Clement. when I said clement may not have knew, that was extremely relatively speaking. He could have been intentionally oblivious turning a blind eye, disingenuous in the way he categorized his torture knowledge for purposes of answering the questions at SCOTUS and/or may have indeed been walled off to that point about AbuGhraib, which really was the centerpiece. I don't know. I know this though, if I had been him, had any present knowledge of the Abu Ghraib stuff as I stood there, and I had been confronted with those questions, I would have walked the discussion back to the record in front of the court on appeal. I have had to do this in front of appellate panels before (certainly not at the SCOTUS level though). Like him or not, clement is amore accomplished advocate in these haughty settings than I; it just seems counterintuitive to me that he would not have done this if he had that strong of knowledge, especially of the Abu Ghraib stuff about to unload. It is too clean of an out if you think you need it. This thought of mine, even if true, does NOTHING to make Clement a good guy, for all the reasons you have elaborated and then some.

I understand your points bmaz and I know you aren't making excuses for them, just considering all the possible angles and having problems with why someone who knew about torture would work things the way he did.

I do think that they are/were assured in their abiity to claim "few rogue actors" with Abu Ghraib and insulate all the MI aspects. Remember, Taguba when he did get to investigate was prohibited from investigating MI, just MP. So I don't know how much he knew about Abu Ghraib or whether or not they could parse it to try to make his statements correct (the Executive never authorized what those guys did - see, we're going after them). So I don't think Abu Ghraib is really the lynchpin, other than the impact of the pictures so soon after his statements.

Where I do think he has a problem is that over the next few months, fast and furious, he had both the duty - with Abu Ghraib reveleations - to make further/better enquiry, and also a whole boatload of areas in which torture was occuring, at home, abroad, by US intel, buy US miltary, by US proxy torturers in other nationstates, etc. He had a whole boatload of people at DOJ who knew some or all of what was going on. But never, prior to the court's decision, did he supplement the record and, to the contrary, Comey held that horrible Padilla presser to blow more smoke.

So how can he have not misled the tribunal given all the knowledge in DOJ and his duty after the Abu Ghraib revelations to make better inquiry?

But your point - that maybe he had been kept deliberately in the dark - is also plausible up to that point and is a part of why I think they didn't want him to be "the guy" on the FISC request for the "questionable" surveillance - where he would have to be briefed in on things and where he would end up with personal direct knowledge of the FISC reaction. I'm thinking they did not want the guy who might have to go argue the illegal and unconstitutional mess to know too terrible much about the specifics of why it is illegal and unconstitutional.

So I understand where you are coming from. It is why I included him not technically knowing as one of the options. But the other thing is - at some point DOJ's knowledge is impugned to him. And DOJ definitely did know. And those in DOJ who did, definitely, know - listened to his statements to the court and never came forward to correct the record.

Such trash.

Man, that is sure the truth. You know, as you said, I am certainly not, nor was I from the start, excusing Clement; hell, the more I think about it (not to mention listening to my friend Mary) the less indicia of propriety can even be hypothecated. The thing that just blows my mind is that, regardless of his degree of knowledge of torture as he stood before SCOTUS, it was just insane not to walk the discussion back to the record on appeal. And the justices would have to hard pressed to force it otherwise if done adroitly. How the hell did Clement blithely step in this, even to the extent he did? Not saying he is innocent; just that the whole scene is incredulous. Clement may be a great lawyer (not in the moral sense, just the technical) like so many say; but this is a big, fat Exhibit A to the contrary if you ask me.

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