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October 03, 2007

Comments

OOoooo!

I can't wait till Friday!

"There are some interesting competing leak wars going on right now. I wonder why?"

Maybe somebody wants to prime the questioning for Michael Mukasey's confirmation hearings? Just a thought. Maybe even a wider audience, the up coming elections.

The revelation of yet another secret torture memo after Goldsmith left, and the vere to the right in reopening the gulag after that 'wimp' Comey left are horrifying. Why is this being leaked? Somebody(ies) must feel very safe from retaliation, or they are very principled. Interesting that Addington (and the unspoken Cheney) seems to be a prime target with Bradbury as a secondary, the stooge/tool.

One source might be Senate staffers for the Judiciary Committee in preparation for the Mukasey hearing for Attorney General.

Senator Pat Leahy had that long list of questions he wanted Mukasey to answer (from his website at http://leahy.senate.gov/press/200710/100307a.html ) and perhaps these are germane:

"What will you do to ensure that legal advice from the Department’s Office of Legal Counsel (OLC) is independent and protected from political influence?"

and

"For example, do you believe that the President has authority to override legal requirements and immunize acts of torture contrary to our treaty obligations and laws?"

Looking that the quoted sources for the article

Philip Zelikow - former State dept (worked with Condi and on the 9/11 report)
Charles J. Cooper - ex OLC
Scott Horton - attorney with Human Rights First
Mr. Kmiec - former Office of Legal Counsel
John D. Hutson - former Navy top lawyer
CIA detention operation govenors
Indirectly - James Comey

Current and former officials - "More than two dozen current and former officials involved in counterterrorism were interviewed over the past three months about the opinions and the deliberations on interrogation policy. Most officials would speak only on the condition of anonymity because of the secrecy of the documents and the C.I.A. detention operations they govern." Emphasis mine.

State and Pentagon sources along with more than two dozen officials. That is a pretty well orchestrated leak. More like a flood. Maybe it is good enough to clean out the DoJ. Maybe these are the people who threatened to quit when Bush/Cheney/Card/Gonzales tried to get Ashcroft to sign the docs that Comey would not sign.

Horton and Comey are bound to have overlapping circles and some of the same people and Horton may have been used as a funnel to get word out that Comey did remember to tsk.

Not loud enough so that any word got out before elections or so soon that Congress might conceivably react to Gonzales' lies in nomination that he so quickly reneged on - - but still, let the record show, there was a tsk.

I thought this part was interesting:

In any case, the White House grew comfortable with Mr. Bradbury’s approach. He helped block the appointment of a liberal Ivy League law professor to a career post in the Office of Legal Counsel. And he signed the opinion approving combined interrogation techniques.

Did he? And how was that done?

BTW - Kmiec, in lieu of anyone with real crediblity, is one of the guys the Republicans have called in for hearings on things like GITMO detentions and procedures as the Pro Exec Power guy. The fact that he's getting queasy at the association and trying to prove his own independence says something.

"More than two dozen current and former officials involved in counterterrorism were interviewed over the past three months . . ."

Three months. What happened 3 months ago? Could this July 20th EO have started the reporters gathering reactions? Executive Order: Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency
http://www.whitehouse.gov/news/releases/2007/07/20070720-4.html

I am not a lawyer, but I can see that 'unlawful enemy combatants' do not get the third Geneva Convention treatment, the Decider gets to interpret the meaning and application of the Geneva Conventions and I'll leave the rest to lawyers to munch upon.

Mary,
JB at Balkinization has a post up on Torture Memo 2.0
http://balkin.blogspot.com/
One money quote,
" He (ed. Bradbury) signed the secret Torture Memo 2.0. And then he wrote another secret memo, Torture Memo 3.0, which held that the recently passed Detainee Treatment Act-- which banned cruel, inhuman and degrading treatment-- did not affect the CIA's practices one bit."

Somebody, as EW says, wants to bury Bradbury.

I can't see as how this is not the product of several sources in addition to the multiple authors EW noted. Goldsmith is sure working overtime to rebirth himself as an "American hero" of his own delusion; I wonder if he is not a part of the mix here.

"He helped block the appointment of a liberal Ivy League law professor to a career post in the Office of Legal Counsel." that line caught my attention as well. As the basis is implied to be because the chap was a "liberal", is Scott Bloch investigating"? Or is bloch still dead in the water (while our vaunted Democratic Leadersheep sit on their freaking thumbs) because he has NO FUNDS with which to pursue any of his investigations? Did Bradbury work in conjunction with Goodling? Sampson? Rove? Gonzales? Miers? Addington? Cheney? This is a fascinating little tidbit I would like to know much more about; in addition to the torture facts, of course.

bmaz,
I know that many want to hang Goldsmith out to dry for a multitude of good reasons.

But he was the one who insisted Comey get read in to the warrantless wiretap program, and he is the one who's analysis was responsible for finding the Program to be "without legal basis".
He is one of the ones Comey named as prepared to resign if the Program was not changed.
He is the one who withdrew the Bybee/Yoo memo, leaving all the CIA agents who had followed it legally high and dry. And he resigned to make it stick.
And he has given us some superfluous Addington doozies: Blood on your hands, one bomb away.

Though flawed, he, along with Comey and Philbin, is the closest thing to a hero we are likely to see slip through the cracks into this Administration.

thanks for the comments, folks--those are precisely the kind of things I was looking at.

As I see it, you've got the following collections of sources:

Risen: CIA and other intell
Lichtblau: DOJ (almost certainly the "one degree removed from Comey" sources)
Johnston: Often the recipient of White House bureaucratic instruggle leaks (see also his "scoop" that Ted Olson was going to be nominated AG)

So I could imagine that Risen and Lichtblau kept reporting on the torture EO, as sailmaker suggests, and that in their research about this found out about the prior memos (CIA and DOJ would both have had to know, eventually).

Then what role was Johnston playing? With the Zelikow mention, I'm wondering if he's doing some rent-a-leaking, seeing as how State opposed the torture EO.

Just a thought, though.

I think a more balanced approach would have reflected, as the story does, the administration's constant struggle to stay on the right side of the law, as demand by the carefully crafted Constitutional Theory Of We Get To Do Whatever The Fuck We Want [rimshot, laughter], otherwise known as the theory of the unitary executive...

Jack Goldsmith speaks about how Cheney and Addington continually pushed the limits by challenging the chalk line approach to surveillance and torture. No problems if they hit the chalk line of limits. No problem if it went slightly out of bounds as long as the goal was avoiding another terror attack or maintaining ever expanding executive power.
The problem with this sports analogy is that the chalk line is often out of bounds and the referee blows his whistle. When you continue to dust the chalk line, people die. This is not a game. Addington and Cheney through their secrecy and vetting of loyalist who agree with the Unitary Executive principles are now criminals. Now it is time for a review of the play on the field. I look up into the pressbox and the reviewers are sitting quietly looking into the monitor. Scalia, Roberts, and Alito look worried but they don't realize that the feed coming into the monitor has been replaced by other Cheney cohorts at the NSA. They make their ruling. They came no where near the chalk line that Cheney and Addington have now moved 3 paces to the right. More phones are tapped, more records are maintained, and the game is over. They have won.

I'd like to point folks to this organization. I just ran across them yesterday (h/t to Glenn Greenwald):

http://www.americanfreedomcampaign.org

They have a pledge:

We are Americans, and in our America we do not torture, we do not imprison people without charge or legal remedy, we do not tap people’s phones and emails without a court order, and above all we do not give any President unchecked power.

I pledge to fight to protect and defend the Constitution from assault by any President.

If Bradbury gets buried, it will be in "stern letters." I actually think some of this probably started in an effort to get Gonzales (more so than Bradbury) out - but as the story was held and sourced and shaped, Gonzales left and so Bradbury is the guy still there.

Sourcing -
- that professor who got blocked and/or any friends
- Scott Horton's a NY guy with hefty international law credentials and he, Comey, Fitzgerald - those guys have to have lots of overlaps. I'm thinking some of the anon sourcing may have been from him too based on things leaked to him. In this Harper's http://www.harpers.org/archive/2007/08/hbc-90000925 I wondered about his sourcing for that matter:
I first got a detailed look into the Padilla case in a meeting I had with a career prosecutor who is pretty well known as an “independent” defender of the administration. My friend had been invited, almost two years ago, to take a deep look inside of the Padilla case and provide an assessment to some senior administration figures who were fretting over what to do with a case that was rapidly turning into an embarrassment.

“I was shocked at what I saw,” my friend noted. “Because the Attorney General had leveled very heavy accusations at Padilla concerning plots for dirty bombs and the like, and there simply wasn’t any real evidence to back this up. They’ll either have to let him go, in which case the Justice Department is going to be horribly embarrassed, or they’ll gave to ginny up a case on lesser charges, some sort of conspiracy something.”

Nice to know tht ginnying up a case has more appeal than being embarassed.

Zelikow may be a source for some of the anon information as well. More so than Comey or Goldsmith, Zelikow actually made public statements about the fact that the Bush administration is NOT treating "detainees" humanely http://www.nytimes.com/2007/05/30/washington/30interrogate.html?_r=1&hp&oref=slogin
In a blistering lecture delivered last month, a former adviser to Secretary of State Condoleezza Rice called “immoral” some interrogation tactics used by the Central Intelligence Agency and the Pentagon.

I don't want to hang anyone out to dry - just to talk objectively and without rose colored glasses and misplaced hero worship about what has actually been done, vs. the story being sold.

Anyone involved with Torture:

- from the Snatchers, Pilots, Guards and Interrogators
- to the Case Officers and their Chain of Command
- to the signers of the Torture-enabling Legal Opinions
- and the Executive Officers of Our Country
- whose Policies, Public or Secret, command Torture

Could be Hanged by a World Court, if Convicted, at anytime down the road.

And don't think All of these men and women won't get hunted down for decades like Nazi Death Camp Guards.

After Abu Ghraib, Bush the Torturer 'over-watched' the Torturees marching Saddam the Torturer to the Gallows.

Once Out of Office, the Moral Opinion of the World will be for Bush, and All His Goons, to get the same 'Justice' that he meted out when he was powerful.

The World will not give BushCo a Pass on Torture.

Comey is right - we'll all be ashamed that Torture has been done in Our Name...just like the German People who had 'heard about the Secret Camps' but were 'comfortably' far-removed from the Reality of Institutionalized Pain Infliction.

Six Million innocents later, when they saw the Reality, they were ashamed.

Bush has Hidden the Reality of his Torturing from US, but it will come out...and we will be Ashamed...even if Bush, Cheney, Addington and Gonzo have Compartmentalized it all as 'Secret.'

It seems to me there may be lots of rats aboard HMS Bush that are scurrying around trying to find some lifeboats as the ship sinks. Months ago our friend Mary speculated that the 2004 show down was all about personal liability and people like Comey and Goldsmith not wanting to end up in the dock someday. As more of this information comes to light, I would bet there are a lot of people with legal exposure who want to be able to say (however, pathetically) that they tried to do the right thing when they got sufficiently uncomfortable (whether Comey's testimony, Goldsmith's book, or Kmiec's discomfort as noted by Mary above).

John Dean hit a breaking point and finally rolled. As a result he has been rehabilitated by society and is now considered a good guy. I'm guessing there are a lot of people trying to figure out whether they will be a Dean or a Liddy.

bmaz, as an aside thanks for the football comment a few threads below :) My time here has been limited recently (I've been lurking as best I can though), so I haven't been able to wallow in the sports nirvana I find myself in... The Pack 4-0, the Badgers ranked in the Top Ten (yeah, I know, undeservedly, I'm sure ;) and the Sox won their first game in the ALDS. With a run of good fortune like this, surely Congress will appoint a special prosecutor and myriad administration officials will finally face charges... Well, one can hope ;)

Phred -
When I think of how much Iran-Contra, nevermind Watergate got shoved under the rug and was never held up to the daylight, I worry about justice ever being done.

Why now? Here's my guess -- not any better than others here. The detainee cases are reaching a head. Boumediene may be released in order to avoid an adverse SCOTUS ruling, etc.

Once the detainee stories start to come out of their own mouths, and they will, specific allegations of enhanced interrogation techniques will come out too. These leaks are a form of "inoculation," in that the interrogation technique allegations won't come out, for the first time, from specific, identifiable subjects of those techniques.

It's not so much a "leak," if it's going to come out anyway.

sailmaker -- I agree. It's clear that Congress does not have the inclination to truly pursue this. But as cboldt notes, these stories will come out. I hope that those with the proper legal standing press charges against everyone they can. We are well and truly at the mercy of the courts now, and with the current make-up of SCOTUS, I worry greatly that in the end, no one truly responsible will be held to account.

At this moment, Senator Kennedy is commenting on the NYT stor, from the floor of the Senate.

Pretty much following the script laid out in the article. He's calling for Congressional Action, and proposes a new bill, that sets out the Army Field Manual as "the limit" of techniques.

Senator Kennedy's Oct 4 Statement

It just happened that Senator Kennedy had a press release that contained the text of his speech as read from the floor of the Senate. I haven't gone in search of a bill number.

Wow. Even Ted Kennedy went right to some "new bill" that will be signing statemented away and disregarded? No mention of "High Crimes and Misdemeanors"? I guess the central Constitutional provision really does have no meaning at all any more. Maybe if the criminal actions and dishonesty of Cheney/Bush were framed in terms of a "blow job" we could get some action; so to speak....

Found the text of the proposed bill ...

S.1943 - To establish uniform standards for interrogation ...

I think this NYT report is potentially very damaging, largely because it has the President saying one thing in public, taking what appears to be affirmative repudiation (by withdrawing the Bybee memo), then turnaround and privately resuming what he said he disparaged. As "hits" go, this one is stronger than the replacement of US Attorneys or admitting to have acquired US-international communications without a warrant.

I will be very much looking forward to your article Friday. I hope you will be putting a focus on the Gang of 8, particularly since the NYT article implies that some lawmakers were made aware of the secret memos.

It would seem, from what you wrote about the 2004 disclosures about illegal wiretapping the Bush admin made to the Gang of Eight, that the admin would likely have used the same MOA.

I've asked my rep. Jane Harman whether she was aware of these secret opinions and also Pelosi, but I suspect they might not be answering my inquiry anytime soon...

cboldt - I don't disagree (my late mother roles in her grave at the double negatives I learned to use as a lawyer). But, you know, it is all of the same whole cloth with these guys, and none of it ever seems to stick to the wall of justice or morality.

I saw a glimmer of veracity in the closing phrase in a Kiel article two days ago concerning Goldsmith; i.e., Kiel readily describes Goldsmith as supportive of aliquots of tortcha, just taking exception to some 'more' egregious forms of inhumane treatment.

Usually the guilty all vote to put it under the rug, so none of them can point the finger at another.

But, we citizens have to demand real Justice, else we face more of this in the future.

The financiers, the manipulators, the think tanks...whomever is involved needs to be ferreted out and exposed. We have to be ruthless about this or they'll forever be returning to feed at the trough of death and corruption.

If we can't manage this then maybe it does show our "experiment" has failed. But, I have a little faith that we're closer to Democracy with the voices of millions booming out via the Internet and this will keep the focus and energy of our nation on Justice.

Has anyone noticed how the Chinese keep showing up in the news headlines ever since the fall in the home mortgage market? Petfood deaths, childrens' toys with lead paint, Chinese hackers getting into DHS? It seems now is government sactioned time for anti-Chinese sentiment. It was not always that way:

Remember Chinese double agent Katrina Leung and romantic entaglements with a Lawrence Livermore Lab worker and two FBI agents? Per wikipedia, on April 9, 2003 Leung was indicted by the United States DOJ for "Unauthorized Copying of National Defense Information with Intent to Injure or Benefit a Foreign Nation," but her case was later dismissed January 6, 2005 because of "prosecutorial misconduct."

Then EW's post earlier today reviewed the news article about Dept of Homeland securities insecurities and Chinese hackers (hackers!! Oh, my! I'll bet this will be an excuse for DHS to receive more money to help stop those Chinese hackers).

Remember whistleblower Russell Tice, former employee at DIA and NSA? He got into trouble for asking the government to investigate a colleague whom he believed could be a Chinese spy. He was later fired for criticizing FBI counterintelligence's ability to investigate this colleague.

The Tice timeline from Wikipedia:
"In early 2001, Tice first reported his suspicions about a young woman he worked with at the DIA whom he believed to be a Chinese spy. He claimed that the woman voiced sympathies for China, traveled extensively abroad and displayed affluence beyond her means. Tice said he "basically got blown off by the counterintelligence office at D.I.A.", but he continued to push the issue until he was transferred to the NSA in 2002.

In April 2003, while Tice was still working at the NSA, an FBI investigation into a Chinese double agent in Los Angeles named Katrina Leung had become international news. She had been receiving classified information from two FBI agents. These revelations of Chinese spying prompted Tice to raise his concerns again.

In a 'secure' e-mail message to the DIA counterintelligence office, he demanded to know what had happened as a result of the 2001 report he had filed outlining his suspicions about his former co-worker (not to be confused with Leung.) "At the time, I sent an e-mail to Mr. James (the DIA official handling his complaint) questioning the competence of counterintelligence at FBI," Tice wrote to the Inspector General of the Pentagon's Civil Reprisal Investigation unit, which investigated his 2003 complaint. In the e-mail, he mentioned that he suspected that he was the subject of electronic monitoring.

In April, 2003, shortly after the e-mail message, Tice was ordered to undertake a psychological evaluation, which he believed was retaliatory. The Defense Department psychologist concluded that Tice suffered from psychotic paranoia. "He did this even though he admitted that I did not show any of the normal indications of someone suffering from paranoia," Tice said in a statement to the Inspector General.

Two months later, in June, 2003, the NSA suspended his security clearances and ordered him to tasks such as maintaining the agency's vehicles, pumping gas, and driving officials around. "


Any ideas if the spate of Chinese news stories (though obviously real) are timed to help the US, or BushCo in particular, out of a tight spot?

Once the detainee stories start to come out of their own mouths, and they will, specific allegations of enhanced interrogation techniques will come out too.

They have - nothing happened.

El-Masri?
Arar?

Dilawar?

Kurnaz?

The two cab companions of Dilawar?

The guy in "The Prisoner or: How I ..." http://www.imdb.com/title/tt0841149/

The bipolar chef?

The US serviceman beaten into disability when he donned the orange for a training exercise (with the video somehow mysteriously and quickly lost)?

The confessions to Colby Volkey's paraglegal (for which SHE faced prosecution threats)?

Taguba's statements about the MI abuse he ran into but was not allowed to follow up on?

Fear Up Harsh (out in print, take a read through it by a military interrogator) revelations?

Tara McKelvey's book Monstering...

Italian prosecutions for rendition-torture?

Harper's interview with Dr. Nakhleh http://www.harpers.org/archive/2006/09/sb-six-questions-emile-nakhleh-1158706094

Mayer's descriptions of torture and death even in more than one article, with names.

Suskind - Grey - book after book with names, faces, dates, details.

And on an on - those are just some off the cuff quickies.

Not only does it not do anything, people directly involved in all of it are constantly held up as heroes, whether it is Goldmsith or Comey or Bellinger. I don't know when or how you, after all this, get to a point where you say: Oh, now THIS will make a difference.

For so long there have been so many revelations and all with no consequences of any kind. And even now, all Dems will do is offer up that they will investigate, or they won't do so much torture themselves.

Find me the Dem who is pushing for criminal prosecutions?

The Maher Arar Canadian investigations/exonerations broke DURING the lead up to the MCA and was getting lots of press, everywhere but here, as his torture and US involvement was detailed and yet "good progressives" like Sherrod Brown scurried to vote FOR the MCA and Reid cut yet another deal letting everyone have nifty little few minute speeches before getting that bill through with no holds, no fight. Nothing.

After so much has happened with no consequences for so long - and even after court martials, troops know that you'll get a stiff (no pun intended) sentence for making your military dog lick peanut butter off your genitals - - but if you want to conspire to murder Iraqi civilians or torture them in sleeping bags until they die or beat their legs into pulverized puddles and then leave them with the option of trying to stand on those legs or die - and they die, any of those things will get you no jail time or commuted sentences.

There's not much in the way of national shame left - no moral lines. We're like the post WWII Germans who grumbled over having to dig the graves, not crying over what went into them. For years now both the military leadership (the Pres and his lackeys) and the legal leadership of this country has shrugged and ignored and been allowed to spout platitudes over what has happened. Awhile back, when I detailed somethings to some horse people who don't pay much attention except to some 24 hour news now and then, they had a huge denial reaction at first. "Why don't we hear about that stuff if it is true - why isn't anyone doing anything for those people - etc." One of them, a smart well versed woman with a medical career (who was thinking of voting for Giuliani but may have now changed her mind) said: If those things are happening, why aren't any of the people running for President talking about it.

All she knew was something she had heard on talk radio that the reason so many were still at GITMO is because they refused to cooperate with their lawyers. Truly - she thought that.

No case breaking will change much now. DOJ has really made America believe that everything done is ok and necessary and there aren't many Americans left who DO actually believe that this country is better than that, but if they did - they still don't believe that bad things actually happened. It's all a matter of weird guys who throw feces at their guards and won't cooperate with their lawyers.


Mary -- I agree, the Dems have made it clear that they will not pursue any of this. Impeachment appears to not only be off the table, but carried off and buried in the yard by the Congressional mutt.

However, since there are laws against this sort of conduct (last I checked), surely, SOMEONE has legal standing to press charges. Who? Is it only those who were tortured, or the families of those murdered? I know we never signed on to the International Criminal Court, but can't someone press charges for their abuse in violation of the Geneva Conventions? We are a signatory to those, which makes them binding in the United States, right?

Who can press charges?!? Hell, it seems to me the citizens of the United States ought to bring some sort of class action lawsuit for the dismantling of the Constitution. IANAL, but I would love to hear from those of you who are how can we use the laws of our land to prosecute these bastards (including Congressional enablers) and put them in jail?

Phred - The torture subjects have tried, and been shut down by the EDVA court (among others), not a good place for them to try to sue, if there is a good place. Unless they are citizens, the law for civil suits is stacked against them; even for citizens it is not favorable, and much has been shut down by duplicitous Administration invocation of State Secrets and National Security. If the Congress continues to be derelict in their Constitutional and moral duties, I would say your hopes stand little chance of fruition. But, as you said, at least some thing are positive on your personal front; and you left out that the Celtics may actually be looking up, especially if they can find a deadeye long range shooter. Maybe Ainge will suit up.

Thanks bmaz. I guess I just don't see how anyone can say that the United States is obligated to abide by the Geneva Conventions (which I believe protect foreign prisoners of war), if such foreigners have no standing in any court (not even a military court?). Perhaps you or someone could clarify to me exactly how treaty obligations are enforceable? 'Cause at the moment, it looks like treaties are worthless bits of paper.

As for the Celtics, there does appear to be a renewed spring in the step of their fans -- dare I call it hope? But, I must confess, I don't follow pro-basketball. Football and baseball, other sports as opportunities arise... caught a bit of the rugby world cup recently, but it's been years since I subscribed to the Rugby Post, no idea who's who now... But who needs rugby when you've got the PACKERS?!? ;) And even though it's an off day -- Go Sox!

Hey, maybe we can get a Red Sox-DBacks series! If so, come on out, I'll take you to a game. Chase Field doesn't have the charm of Fenway, but it is very cool, pretty nice and a great place to watch a game.

Oooo, that would be awesome! We have tickets to Game 7 of the World Series, if the Sox make it and it goes that long. Honestly, I hope if they make it that it doesn't go to 7 games, I don't think my nerves could take it ;) Go Diamondbacks!

re: torture

if you haven't done so,

go read scott horton's essay,

"macbeth for the age of bush",

at his "no comment" column in "harpers" (oct 4,2007).

i was entranced by it.

i do not know any more eloquent writer writing today who mixes art, literature, and politics so meaningfully.

you really must read this.

and thanks, mimiK, for the earlier referral to horton -

what a gem.

horton's his use of the weblog and the internet to mix and display together politics and art

beautifully illustrates the tremendous depth of communication this new medium afford us.

example:

herman hesse reading one of his own poems (no comment, sept 2, 2007).

are you kidding me?

no. it's there.

reproductions of paintings mixed in with political commentary?

are you kidding me?

no, it's right there.

now THAT'S a medium.

roosevelt speeches? kennedy speeches? wobblie songs? josh white? peter finley dunne?

why not?

multi-media, indeed.

phred - sometimes it is hard for people to get a handle on criminal charges v. civil charges.

There are criminal laws on the books that apply to what is being done (the War Crimes Act comes to mind). But no individual parties can bring criminal actions - only prosecutors and basically only federal prosecutors. The loyal Bushies will not bring those charges and this is what Goldsmith was getting at with the OLC opinions being an advance pardon. To the extent that the overall boss of the Executive Branch of which DOJ is a part (the President) and the overall boss of the Dept. of Justice (the AG) have collaborated with the Office of Legal Counsel (the entity that has the delegation of the AG's power to interpret the law for the DOJ) and that collaboration has yielded a Legal Opinion that says the torture is OK under US law, then they are saying that this will, for all time, foreclose prosecutors from taking action on those crimes bc the DOJ had found they were "authorized" (I tend to say solicited) at the time they occured. I'm not sure how correct that is, bc there is certainly not much more than tradition to back it up, but as a practical matter - no USA or assist or division of Main Justice has any plans on bringing any charges for torture they solicited.

So that's the criminal area. No one is bringing charges.

There are, however, also "civil" remedies (meaning victims can attempt recovery of dollar damages and certain other kinds of relief/redress). There, the assault has been multi-pronged. But to take Maher Arar's case, for example, he launched a lawsuit against those who were known to be involved in sending him to Syria for torture. Those persons included Ashcroft and Larry Thompson. Thompson was DAG at the time and signed off on the actual paperwork to ship Arar to Syria - which was attached to his complaint.

The reason his case was dismissed?

Well, Thompson had left and been replaced by Comey. Ashcroft "recused" himself, since he was a named party. Then Comey intervened in the lawsuit, on behalf of the US DOJ and GOV, and filed a State Secrets affidavit that said national security would be adversely affected if the Judge allowed the case to go forward. So the Judge (Ellis IIRC) dismissed it.

Another approach that is being taken is to say that, even where civil recoveries are allowed under laws referencing conventions like the torture convention, the President should have the sole right to interpret what the conventions mean so he should ultimately get to decide if his victims recover under the nations laws that enabled a treaty.

Once some of the GITMO detainees are released, they would normally have rights to show that, for example, they were never enemy combatants and that they were protected persons under the Geneva Conventions and that they were victims of torture and have torture victims rights. If you watched the Alito hearings but didn't know the context, you might not have realized why Graham was getting so mouth frothy over the concept that terrorist might have rights to sue the gov and surely Alito didn't agree with that etc. etc. That was what he was getting act - some efforts have been made on that front.

However, Congress, via the MCA has now stepped in (there is so much more than habeas wrong with the MCA) and said that there is at least some amnesty for torture and also, very importantly, that if a person was found by any kangaroo tribunal with no representation and based on less than worthless evidence (like the Kurnaz case that went through the courts or the Uighurs case that went through the courts) to be an "enemy combatant" (actually, they used the language 'unlawful enemy combatant, which is causing its own problem) then that finding by that tribunal is DISPOSITIVE.

What does this mean? Well, for example, it is an unquestioned "severe breach" of the Geneva Conventions to take a "protected person" and ship them to another country - like we did with all kinds of people purchased in Pakistan and elsewhere and shippped to GITMO. Congress has now said that no one who went through GITMO and had a CSRT (Combatant Status Review Tribunal) can now claim to be a 'protected person' in US courts because it has been CONCLUDED that they are indeed all enemy combatants (the tribunals found EVERYONE to be enemy combatants - if they didn't, they kept having tribunals for that person until they were found to be an enemy combatant and the most they ever did was find someone to be "no longer" and enemy combatant - - because, you see, if they weren't an enemy combatant when they went down (hence, the 'no longer') then it's pretty prima facie that they were protected persons. And that a war crime took place. And that they have torture victims rights for civil remedies.

Congress stopped that with the MCA. Despite the fact that at least two cases - the Uighurs and Kurnaz - had already gone through court proceedings where the courts had determined that those CSRTs were mockeries and the people were not and had not been enemy combatants. Go back to the MCA speechifying and see who, if anyone, mentions that. *sigh*

So there are all kinds of bits of Congressional enabling OTHER than the suspension of habeas whereby Congress has helped foreclose any criminal or civil actions against torturers. Then there is the Executive Branch's activities with DOJ affidavits and partisan failures to prosecute and solicitation of torture. Then there is the acquiesency by Courts - like not looking behind bare affidavits. Still, the courts have worked the hardest on this, but the Democrats in Congress have basically lined up (when they were in the minority by not fighting like the current minority is fighting and when they are in the majority by allowing the minority to set the agenda) with the Administration and Republicans against the rule of law and the courts and against any recovery by victims of the Executive Branch's torture and Congressional complicity.

It's not pretty and there is so much now - in so many pieces of legislation (plus things like the questioning of Alito whereby he was pushed to commit to not believing in recovery rights as part of his nomination process) that it will be a difficult ball of string to unravel so that process can actually work appropriately.

Mary, you always explain things with so much more detail and eloquence than I do. Thank you for that (even though it makes me look as lame as I am. Heh heh).

Mary -- thanks so much for the explanation. I think what troubles me so much, is the framers counted on the separation of powers to keep everyone in check on behalf of the public. So while Congress has the authority to impeach, we the people have none. The framers evidently did not consider that the entire federal government would agree to abandon the Constitution. Hence the public was not vested with any means to pursue criminal complaints against the government en masse. Here we find ourselves and our republic, for what it's worth, with no authority to rein in criminal conduct by our elected officials. This drives me crazy.

I realize that the framers intended the public to exert their authority at the ballot box. But that is a political solution, a civil action if you will. We find ourselves faced with a situation where the leaders of both parties have agreed to participate in criminal conduct knowing that no one is left to put a stop to it. Should we ever have another Constitutional Convention, this gaping legal loophole needs to be closed. I don't know the best way to do it. Perhaps a ballot initiative where if a simple majority supports it, a special prosecutor must investigate allegations of criminal conduct whether any of the 3 branches supports such an initiative or not.

It is outrageous that the public has to sit by and witness clear criminal conduct day after day, and yet remain powerless to stop it. So much for our government "of, by, and for the people", we have been cut out of the loop.

Thanks for the discussion Mary, phred and bmaz.

How do politicians on supposedly opposite sides of the aisle find it to their mutual advantage to support this administration and by doing so disrespect the rights of the People, both tortured and otherwise?

bmaz - what actually happens is I get started, then split to do real work, go back, don't have the train of thought so I meander and repeate, leave again, come back again, then hit post without refreshing.

Which leaves me to have to point at other things that went up and say, "oh yeah - what I said in 12 parapraphs, that sentence there someone else alread said summarizes *g*

I'm why editors invented red ink. ;)

Phred - This is way overly simplistic, but I think the framers never envisioned that the elected representatives of the people would become so removed and detached from the people. A corollary would be that, despite the lack of fast and mass media at the time, they never envisioned such a lethargic, ambivalent, uninformed and uneducated (at least on the important issues) public, nor a media so like a deer stuck in the headlights, fixated on the shiny light and paralyzed from doing the necessary job. It is a three way combination that is proving literally lethal to what our country is supposed to stand for. It is both puzzling and disillusioning.

pdaly - I think that is somewhat easy actually. The politicians think that they are the ones to get things done, so it is critical that they be the ones there to serve the people and must focus on staying elected. Staying in power very quickly becomes more important than actually serving their constituents, country and Constitutional duties. Many are just power hungry, greedy crooks out for themselves; most are not. In the end, there is often not that much different between the two. Congress has become a club, a gang if you will, the interests of the club/gang, and it's members, become more important than the real good of the people and country; but they delude themselves, aided by a fawning insider media, into believing they are doing the people's work. They long ago ceased really doing that though.

Mary, I love and appreciate every word of it; don't ever stop.

bmaz, but the politicians can read the polls and know that this war is unpopular in the hinterland.
They are helping each other survive (cooperative behavior), risking their individual membership in the club by angering their constituents.

I also think the Republicans would not look back with misty eyes if all Democrats were kicked out of the DC club.

I'm using 'hinterland' here they way some DC politician might, meaning anything 'outside of DC'

Heh heh. I didn't say it was a perfect paradigm. You are right about the "cooperative behavior". It is a bizarre Kabuki dance, and each party actually needs the foil of the other. To adapt Eisenhower's "military-industrial complex"; there is some kind of mutant Political-Press complex that feeds on itself and the resources and populous of the country. In retrospect, my explanation was not so easy. On some of these things like the war and investigating the giant crimes of BushCo., I think they see the polls, but either don't really believe them, or believe the numbers are soft. In other words, that the people say they want investigations and accountability and end of the war, but would turn on them if they actually did it. In a way I understand the thought, but it is superseded by the fact that it is the RIGHT THING to do morally, legally and Constitutionally. I have got no idea; but it is fucked up.

One thing I noticed in the article was them referring to torturing Al Quaeda operatives, not alleged Al Quaeda operatives.
(It seems so much more like them keeping us safe that way.)

There is definitely something going on, but politicians and media people in the know shun public disclosre.

This gets me back to my off topic musings earlier in this thread.

re: Russell Tice. He was one of the sources for the NYTimes article about the NSA eavesdropping on Americans.

back to wikipedia excerpts:
"But while Tice was a source for the Times story, he was not himself part of the classified NSA program; instead, he took part in space systems communications, non-communications signals (such as radar emissions), electronic warfare, satellite control, telemetry, sensors, and special capability systems.

In a letter dated December 18, 2005, to the Senate Select Committee on Intelligence, the House Permanent Select Committee on Intelligence, and to Senator Pat Roberts, Chairman of the Senate Select Committee on Intelligence, he said he was prepared to testify about the SAP programs, under the provisions of the Intelligence Community Whistleblower Protection Act. It is not known, however, what the testimony would specifically involve.

It has been assumed that the problem concerned the electronic surveillance of Americans, but in an interview published 13 January 2006 on the reasononline web site, Tice said "there's no way the programs I want to talk to Congress about should be public ever, unless maybe in 200 years they want to declassify them. You should never learn about it; no one at the Times should ever learn about these things. But that same mechanism that allows you to have a program like this at an extremely high, sensitive classification level could also be used to mask illegality, like spying on Americans."


Now, what could be going on in our name that is so egregious Tice would want to TELL Congress (although it turns out Congress did not have the security clearances high enough to hear about it), but at the same time Tice would not "in 200 years" want to leak to the public? If people are doing bad things, why not prosecute? What possible bad things are being done or were done that we do not already know about? Was this before Abu Ghraib came to light? is there something else?

Not saying this is the same issue at the center of the current Congressional intransigence, but what if?...

I answered part of my own question. It looks like Abu Ghraib came to light in 2003 and was definitely well known to the public in 2004.

I think they see the polls, but either don't really believe them, or believe the numbers are soft

Greenwald did a piece about Feinstein that, imo, gets at the issue for many of pols and media. They are each other's peer group, with helpings of corporate world. When the guys you husband or wife works with, and who are married to their peers, and who you see at restaurants and wave, etc. are the same ones you are supposed to be reporting on or opposing, they truly do lose any concept of what the non-beltway crew sees/believes and they truly don't see how they are swayed to go along with their husbands' corporate-military complex pals or their wives' political bosses and friends, etc.

It's a club - they're the mouseketeers.

There is a lot in the above thread comments. For the questioner about AGhraib, there is an old article by Radack who examines the whistleblower construct dilution during Bush administration.
Although OT with respect to tortcha, there is an eavesdropping suit appealed for certiorari to the US Supreme Court this week, the one which in classic neoCon fashion, the regional appeals court reversed last year; it is the one Anna Diggs Taylor signed before many of the other cases were consolidated to Judge Walker.
I thought the idea of polemicizing over the NYT all's fair in war article salubrious, if congress gets the Congressional Research Service to write an authoritative history; executive orders may ameliorate impact for contemporary implementers of tortcha policy, but one of the undercurrents is a kind of 007ish tale of decades of person's inhumanity to person. In prior decades in the US it was disregarded, even ridiculed as misdirected, but congress' addressing it in a public way might help expand the picture of how the pathway arrived to the current condition. I have a theory about the dissociation of nations to explain the social context, but looking thru the legal lens of congress should prove illuminating with respect to the American experiment in modern polity.

pdaly -- In addition to the above comments that Congresscritters are all in the same club rubbing elbows everyday, I think there are two other key factors. First, the framers probably never imagined the elected represenatives would have a different core constituency than the public. In fact, both parties get massive corporate donations for their campaigns in our current pay-to-play system. Those are the people they must represent, their constituents less so. Second, in our two party system, intense polarization serves the two parties in power best. Create an environment so divisive that your base loathes the very air the other party breathes and you will find that no matter how badly you treat your base, no matter how poorly you represent their interests, they will continue to vote for you. And here we are in the land of voting for the lesser of two evils. This is possible because the prohibitive costs of campaigning created by the former limits primary challengers or even viable third party challengers regarding the latter.

You see this dynamic played out every day on the blogs and in the comments. Those who want to dump the party and those who insist we support it. Both points of view are correct. And so we remain mired in this increasingly dysfunctional system.

Thanks, all.

I hope that web neutrality holds and that campaigning on the web continues to offer cheap and effective campaign advertising for rule-of-law candidates.

'Help us, Open Web, you're are only hope'

Great quote pdaly, LOL :) Night all...

Also, when the Constitution was written, communication was enough slower that congresscritters spent a lot more time outside of Congress, wither in their own districts or travelling to and from wherever Congress was sitting that session. That kept them a lot more in touch with the real world than what we have now, where they can get first-class or business-class airline seats (and not have to mix with the general public in steerage coach, they can live in restricted-access areas out of reach of the general public, and they don't, generally speaking, ever have to mix with them in the course of daily life or business, whether in their districts or in DC (wanna bet they think of DC as 'home'?), and they don't have to see anything that breaks that isolation, either.

Nielson/NetRatings has issued a study showing that the top 10 social networking sites saw traffic grow 47% over the last year, with MySpace seeing the biggest growth (367% increase) and MSN Spaces (286%) seeing the biggest growth. Hosted blogging systems were included in the study.

One thing to note about those numbers is that while Classmates had one of the lowest positive growth rates at 10%, they spend loads on advertising while MySpace, Youtube, and Facebook haven't spent a penny.

If I recall correctly, a couple years ago Classmates.com was one of the 10 largest spenders on online advertising.

There are plenty of new social networking sites poping up but what get's me why can't myspace there instant messenger working. $580 mill and can't afford to fix instant messenger BAD myspace.
There are so many better ones how about http://cubiclelife.net for example has all the features of myspace plus quizzes, polls, webchat with audio and video oh and hey they have instant messenger. You have a long way to go myspace.

[IMG]http://seekingalpha.com/wp-content/seekingalpha/images/socialnetapr06.jpg[/IMG]

send me more games

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