Friday, May 29, 2009

The Proof is in the Lying

Greg Sargent reports that the documents Cheney wants declassified don't say what he says they do, according to Sen. Carl Levin:
Mr. Cheney has also claimed that the release of classified documents would prove his view that the techniques worked. But those classified documents say nothing about numbers of lives saved, nor do the documents connect acquisition of valuable intelligence to the use of the abusive techniques. I hope that the documents are declassified so that people can judge for themselves what is fact and what is fiction.
TPM has the video.

As Stevie might say, You Haven't Proved Nothin'.

Wednesday, May 27, 2009

Empathy for the Common Man

One of the president’s stated qualifications for his Supreme Court picks – including Judge Sonia Sotomayor – is that they approach judicial rulings with empathy for the real people whose lives their decisions will affect. The notion owes more to Solomon than to the strict constructionist dogma of the Federalist Society. As others have observed, if interpreting the Constitution were a simple matter of strict textual analysis, we might see fewer five-four decisions (and more disputed babies divided in half).

Read more at Campaign for America's Future ...

Thursday, May 21, 2009

Pentagon Rejoins the Fight Over Guantanamo

Conservative talkers will be flogging this story from the New York Times:

WASHINGTON — An unreleased Pentagon report concludes that about one in seven of the 534 prisoners already transferred abroad from the detention center in Guantánamo Bay, Cuba, has returned to terrorism or militant activity, according to administration officials.

The conclusion could strengthen the arguments of critics who have warned against the transfer or release of any more detainees as part of President Obama’s plan to shut down the prison by January. Past Pentagon reports on Guantánamo recidivism have been met with skepticism from civil liberties groups and criticized for their lack of detail.

That might be because the Pentagon considers former detainees giving interviews critical of the United States as "terrorism or militant activity." According to a report by Seton Hall Law School's Mark Denbeaux, the "Tipton Three" who participated in the documentary The Road to Guantánamo and one of five Uighurs released to Albania wrote a New York Times op-ed urging "American lawmakers to protect habeas corpus." The Pentagon counts all as anti-American activity under the rubric, "returned to the fight."

Read more at Campaign for America's Future ...

Wednesday, May 20, 2009

Haven't we seen this movie?

From today's New York Times:
Arms From U.S. May Be Falling Into Taliban Hands

KABUL, Afghanistan — Insurgents in Afghanistan, fighting from some of the poorest and most remote regions on earth, have managed for years to maintain an intensive guerrilla war against materially superior American and Afghan forces.

Arms and ordnance collected from dead insurgents hint at one possible reason: Of 30 rifle magazines recently taken from insurgents’ corpses, at least 17 contained cartridges, or rounds, identical to ammunition the United States had provided to Afghan government forces, according to an examination of ammunition markings by The New York Times and interviews with American officers and arms dealers.


The scope of that diversion remains unknown, and the 30 magazines represented a single sampling of fewer than 1,000 cartridges. But military officials, arms analysts and dealers say it points to a worrisome possibility: With only spotty American and Afghan controls on the vast inventory of weapons and ammunition sent into Afghanistan during an eight-year conflict, poor discipline and outright corruption among Afghan forces may have helped insurgents stay supplied.
As I recall, we left on the order of 1.6 million M-16 rifles and other carbines behind in Saigon that later turned up all across Southeast Asia, the Philippines and Central America.

Those who fail to learn the lessons of history...

Tuesday, May 19, 2009

Torture Deniers

Gov. Jesse Ventura is not someone for torture deniers to take on lightly:

Fearful authoritarians like Brian Kilmeade and his ilk are pretty quick to sell their American birthright for what Franklin called a little "temporary security." These are the kinds of Americans who brought us the Patriot Act and the Military Commissions Act of 2006. I wrote about the latter at the time it passed (Asheville Citizen-Times 10-22-06):
The detainee treatment question is not about the blackness of terrorists’ hearts.

It is about our own hearts. About our standards of behavior, not theirs. Neitzsche cautioned, “He who fights with monsters might take care lest he thereby become a monster.”

Fighting terrorism requires tough measures. Tough, but smart. And effective.

Promoting democracy requires living by our principles, not retreating from them.

America aspires to set a standard for the world, a moral high bar so high that sometimes she fails in reaching it. In our post-Sept. 11 zeal we allowed our enemies to re-set that bar for us — ankle-high. Stay one step above those who cut off prisoners heads on videotape and we can still claim moral superiority. Not that the world will pay attention any longer.

Osama bin Laden wants to destroy America? He needn’t bother. We just might do it for him.
I have run out of patience with even describing these "principled patriots" as torture apologists. They are torture deniers.

No more choo-choo?

"The gravy train has got to stop," - Royal Dutch Shell investor
Shareholders voted against approving the executive pay policies of Royal Dutch Shell on Tuesday, giving the energy company a clear signal it had not done enough to address remuneration concerns that dominated proceedings at its annual meeting for a second year.
- Financial Times
In a sign that the public may finally be calling corporations to heel, several investor groups have been pressuring corporate boards on executive pay, at least in Europe, the Financial Times reports:
Xstrata suffered a stinging protest by shareholders over its pay policies on Tuesday as more than a third of votes cast on its remuneration report at its annual meeting failed to back it.

BP experienced a similar protest vote against its remuneration plan last month and pay is expected to be a contentious issue at Shell’s annual meeting this month.

“The turnout at meetings is higher, and a much higher level of votes is being cast against remuneration proposals in a number of countries, such as the Netherlands and Sweden,” says Jean-Nicolas Caprasse, head of proxy voting agency RiskMetrics European and Middle Eastern business.

Europe in recent months has seen revolts in the Netherlands (Heineken, ASML, KPN) and Sweden (Volvo, Nordea). The past few weeks have seen that mood take hold in Britain.

“Remuneration is the number one subject in the UK and Europe”, says Mr Caprasse. “One thing shareholders agree is that they don’t want to reward failure and they’ve seen a lot of failure in the past year. It has united shareholders’ focus.”

Bank of America investors last month scored a small victory by deposing Ken Lewis as CEO. Perhaps it is because the economic wreckage is worse in Europe that investors across the pond have done more to date than American shareholders. Stay tuned.

Now Concentrated!

Gallop has a new poll showing across-the-board party identification losses for Republicans since Bush took office, with the biggest declines "after Hurricane Katrina and Bush's nomination of Harriet Miers to the Supreme Court ... and amid declining support for the Iraq war." There are significant losses among every subgroup except conservatives, senior citizens and frequent churchgoers.

The parties were also evenly matched on basic party identification in 2001 (which does not take into account the partisan leanings of independents), with 32% identifying themselves as Republicans, 33% as Democrats, and 34% as independents. The 2009 data show the GOP losing five points since then, with identification increasing three points among both Democrats and independents.
While the Bush/Cheney years did most of the damage measured by Gallop, the shrinkage has accelerated since November. Rather than looking to broaden its appeal, the Party of Limbaugh now seems locked in a death spiral of ritual purification. Like a reduction in cooking, the GOP is driving off its more moderate elements, thickening, concentrating and intensifying what remains. Or as Wikipedia puts it,
While reduction does concentrate the flavors left in the pan, extended cooking can drive away volatile flavor compounds, leaving behind less interesting tastes.
Tastes that appeal to fewer and fewer Americans, it seems.

Monday, May 18, 2009

The count grows

Because of the use of unnamed sources, the count is somewhat muddy, but citations are mounting that the Bush administration used torture to look for political cover for the Iraq invasion:
1. Maj. Paul Burney - SASC report
2. "A former senior U.S. intelligence official" - McClatchy April 21
3. Charles Duelfer - Daily Beast report
4. One "U.S. intelligence officer" (or two?) in addition to Duelfer - Daily Beast report
5. Col. Lawrence B. Wilkerson - Washington Note
6. Army Lt. Col. Brittain Mallow (retired) - McClatchy May 15
Cheney said Gitmo detainees revealed Iraq-al Qaida link - McClatchy May 15
The head of the Criminal Investigation Task Force at Guantanamo from 2002-2005 confirmed to McClatchy that in late 2002 and early 2003, intelligence officials were tasked to find, among other things, Iraq-al Qaida ties, which were a central pillar of the Bush administration's case for its March 2003 invasion of Iraq.

"I'm aware of the fact that in late 2002, early 2003, that (the alleged al Qaida-Iraq link) was an interest on the intelligence side," said retired Army Lt. Col. Brittain Mallow, a former military criminal investigator. "That was something they were tasked to look at."

He said he was unaware of the origins of the directive, but a former senior U.S. intelligence official has told McClatchy that Cheney's and former Defense Secretary Donald H. Rumsfeld's offices were demanding that information in 2002 and 2003. The official, who wasn't authorized to speak publicly on the matter, requested anonymity.
Perhaps this is the ticking time bomb we keep hearing about?

Sunday, May 17, 2009

Now it is about Geneva

There's one thing no one yet seems to have made an issue of from the Daily Beast report that the Office of the Vice-President suggested using waterboarding on an Iraqi intelligence official: Iraq is a Geneva Convention theater.

Using waterboarding on an Iraqi POW would be a clear-cut violation of the Geneva Convention. Even suggesting it might be conspiracy to commit a war crime. Besides, the OLC memos purportedly made the enhanced techniques legal only for use against al Qaida and Taliban members in extreme cases.

Kagro X undercut himself with his suggestion that the torture regime was comparable to the Spanish Inquisition, but his basic points were sound, as Jane reiterated:
1. Private contractors were conducting torture
2. It was torture for political gain
3. Pollsters should be asking if Americans support using torture to extract false confessions for political purposes, because that's what happened
These are points to keep hammering home. But we could add the Geneva element with respect to the Iraqi prisoner Charles Duelfer mentions. The convention doesn't seem to have been an impediment for the OVP, unless they thought that by merely "suggesting" waterboarding that they would not be crossing that line (hoping Duelfer, et. al. would take the hint and act on their own).

Because of the use of unnamed sources, the count is somewhat muddy, but the citations are mounting that the Bush administration used torture for political cover for the Iraq invasion:
1. Maj. Paul Burney - SASC report
2. "A former senior U.S. intelligence official" - McClatchy April 21
3. Charles Duelfer - Daily Beast report
4. One "U.S. intelligence officer" (or two?) in addition to Duelfer - Daily Beast report
5. Col. Lawrence B. Wilkerson - Washington Note
Katrina vanden Heuvel just raised the issue on This Week (still in progress).

The trick bloggers have to remember is to be careful about how they report these issues. Go hyperbolic and the argument becomes about how we say things, rather than about the facts themselves.

Saturday, May 16, 2009

Kagro X nails it

Now if we can just get the MSM to report the same:

Okay, invoking "Spanish Inquisition" was sensationalist rhetoric that left him open to discrediting, but otherwise he was spot on. Jane Hamsher sums it up:
... watch Kagro X (David Waldman of CongressMatters) on and he'll be your hero, too.

The successful hijacking of the torture debate by its proponents obscures the underlying facts, as Kagro makes abundantly clear:

1. Private contractors were conducting torture
2. It was torture for political gain
3. Pollsters should be asking if Americans support using torture to extract false confessions for political purposes, because that's what happened
This cannot be hammered home strongly enough, and is the most concise distillation of the real issue at hand I have seen.

Thursday, May 14, 2009

BushCo's White Whale

From the Daily Beast:
*Two U.S. intelligence officers confirm that Vice President Cheney’s office suggested waterboarding an Iraqi prisoner, a former intelligence official for Saddam Hussein, who was suspected to have knowledge of a Saddam-al Qaeda connection.

*The former chief of the Iraq Survey Group, Charles Duelfer, in charge of interrogations, tells The Daily Beast that he considered the request reprehensible.

*Much of the information in the report of the 9/11 Commission was provided through more than 30 sessions of torture of detainees.
At the end of April 2003, not long after the fall of Baghdad, U.S. forces captured an Iraqi who Bush White House officials suspected might provide information of a relationship between al Qaeda and Saddam Hussein’s regime. Muhammed Khudayr al-Dulaymi was the head of the M-14 section of Mukhabarat, one of Saddam’s secret police organizations. His responsibilities included chemical weapons and contacts with terrorist groups.
If I remember my secret OLC memos, those techniques were only authorized for members of al Qaida and the Taliban. And using the harsh techniques on an Iraqi POW would be a violation of both the Geneva Convention (which applied in the Iraq theater) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cruel, inhumane or degrading, even if they argue waterboarding isn't torture).

The deeper we go down the torture rabbit hole, the clearer it seems that the torture regime was built, not around any ticking time bomb scenario, but around the Bush administration trying to establish a link between al Qaeda and Iraq, both before and after the invasion.

In today's Washington Note, Col. Lawrence B. Wilkerson, former chief of staff to of Secretary of State Colin Powell:
Likewise, what I have learned is that as the administration authorized harsh interrogation in April and May of 2002--well before the Justice Department had rendered any legal opinion--its principal priority for intelligence was not aimed at pre-empting another terrorist attack on the U.S. but discovering a smoking gun linking Iraq and al-Qa'ida.

So furious was this effort that on one particular detainee, even when the interrogation team had reported to Cheney's office that their detainee "was compliant" (meaning the team recommended no more torture), the VP's office ordered them to continue the enhanced methods. The detainee had not revealed any al-Qa'ida-Baghdad contacts yet.
As dday over at Hullabaloo, puts it,
Over and over again, we have seen Iraq as the white whale to the Bush Administration, as their sole focus through much of the first term appeared to be laying down the basis for invasion and occupation. Everything flows from this original sin.
Formal charges may flow as well. Obama may not be able to stop an investigation now.

A Real Game Changer

Rebranding is this week's colossal-osal, gigantic-antic, magic formula for returning the Republicans to national-party status:
A member of the Republican National Committee told me Tuesday that when the RNC meets in an extraordinary special session next week, it will approve a resolution rebranding Democrats as the “Democrat Socialist Party.”

When I asked if such a resolution would force RNC Chairman Michael Steele to use that label when talking about Democrats in all his speeches and press releases, the RNC member replied: “Who cares?”

Which pretty much sums up the attitude some members of the RNC have toward their chairman these days.

Steele wrote a memo last month opposing the resolution. Steele said that while he believes Democrats “are indeed marching America toward European-style socialism,” he also said in a (rare) flash of insight that officially referring to them as the Democrat Socialist Party “will accomplish little than to give the media and our opponents the opportunity to mischaracterize Republicans.
Ya think?

[h/t Digby]

Wednesday, May 13, 2009

Ali Soufan "Snopes" Cheney

All through my reading of the Senate Armed Services report on detainee treatment (Levin report), I kept scratching my head, wondering where did Bush, Cheney and Rumsfeld get the idea that they should be using SERE techniques for interrogating al Qaeda prisoners? Civilian contractors were involved, we knew. But today we got more.

From former FBI interrogator Ali Soufan's statement at today's 2-1/2 hour Senate Judiciary Committee hearing (video):
In summary, the Informed Interrogation Approach outlined in the Army Field Manual is the most effective, reliable, and speedy approach we have for interrogating terrorists. It is legal and has worked time and again.

It was a mistake to abandon it in favor of harsh interrogation methods that are harmful, shameful, slower, unreliable, ineffective, and play directly into the enemy's handbook. It was a mistake to abandon an approach that was working and naively replace it with an untested method. It was a mistake to abandon an approach that is based on the cumulative wisdom and successful tradition of our military, intelligence, and law enforcement community, in favor of techniques advocated by contractors with no relevant experience.

The mistake was so costly precisely because the situation was, and remains, too risky to allow someone to experiment with amateurish, Hollywood style interrogation methods- that in reality- taints sources, risks outcomes, ignores the end game, and diminishes our moral high ground in a battle that is impossible to win without first capturing the hearts and minds around the world. It was one of the worst and most harmful decisions made in our efforts against al Qaeda. [Emphasis mine.]
The former FBI interrogator testified from behind a screen to protect his identity. It didn't protect Cheney from incoming fire, though. As someone who interrogated Abu Zubaydah, as someone who was there, i.e., not basing opinions on written or verbal reports from subordinates, Soufan debunked many of the intelligence successes Cheney claims for his torture program. Soufan said Zubaydah gave up the names of Khalid Shaikh Mohammed and Jose Padilla under the standard Informed Interrogation Approach.

Sen. Lindsay Graham (R-SC) was left to angrily walk a very shaky tightrope between formally disapproving of the "enhanced techniques" and trying to stomp down any suggestions of criminality that might require drawing up formal charges against Cheney, et. al.

Soufan had nothing nice to say about the $1000 a day "outside contractors with no expertise in intelligence operations, investigations, terrorism, or al Qaeda" who interfered with his interrogation of Abu Zubaydah. Soufan didn't name names, but one supposes that he's referring to "voodoo scientists" Bruce Jessen and Jim Mitchell, recently re-outed by ABC News:
Both men declined to speak to ABC News citing non-disclosure agreements with the CIA. But sources say Jessen and Mitchell together designed and implemented the CIA's interrogation program.

"The whole intense interrogation concept that we hear about, is essentially their concepts," according to Col. Steven Kleinman, an Air Force interrogator.

Both Mitchell and Jessen were previously involved in the U.S. military program to train pilots how to survive behind enemy lines and resist brutal tactics if captured.
Read: SERE trainers.
But it turns out neither Mitchell nor Jessen had any experience in conducting actual interrogations before the CIA hired them.

"They went to two individuals who had no interrogation experience," said Col. Kleinman. "They are not interrogators."
Soufan said in his testimony today that the contractors employed harsh techniques over the objections of the FBI and CIA interrogators on the scene:
Throughout this time, my fellow FBI agent and I, along with a top CIA interrogator who was working with us, protested, but we were overruled. I should also note that another colleague, an operational psychologist for the CIA, had left the location because he objected to what was being done.
How in the hell, I keep asking myself, are contractors in any position to "overrule" government officials in such matters? Scott Horton, chair of the New York City Bar Association's International Law Committee, suggested in Salon two years ago that "the decision to introduce and develop these methods was made at a very high level." Der Spiegel confirmed that just yesterday:
[Soufan] ... asked Mitchell who had authorized him to use the aggressive methods. Mitchell responded that he had received approval from the "highest levels" in Washington. All this happened in April 2002, four months before the Bush administration issued its first torture memorandum to legally justify the interrogation techniques.
No wonder Dick Cheney's everywhere defending his little shop of horrors.

Monday, May 11, 2009

More Kafka than Kafka

Over at Kos, McJoan links to an outstanding (and lengthy) piece in the Chicago Tribune's Sunday magazine on a local attorney, Candace Gorman, who is representing clients at Guantanamo at her own expense. The roadblocks and travails are epic.

Here's the money quote:
"Guantanamo is more Kafka than Kafka."

Sunday, May 10, 2009

Waterboarding - How can we justify it? Volume!

The conservative full-court press to defend torture continues. From today's Face the Nation appearance, something I noticed in former VP Dick Cheney's defense of waterboarding. He keeps insisting that two yet-unseen CIA memos prove "precisely how much was achieved" through enhanced techniques, including waterboarding. Nothing new in his rhetoric, I think, but his justification for using waterboarding is that it makes subjects much more talkative [Transcript page 4; Emphasis mine]:
SCHIEFFER: Well, Mr. Vice President, let me ask you this. I mean, I'm not asking you to violate any rules of classification, but is there anything you can tell us specifically that those memos would tell us? I mean, some information we gleaned, some fact that we got that we wouldn't have gotten otherwise?

CHENEY: That's what's in those memos. It talks specifically about different attack planning that was under way and how it was stopped. It talks about how the volume of intelligence reports that were produced from that.
But quantity does not mean quality. In March the Washington Post reported on the quality of "the volume of intelligence reports" gleaned from waterboarding Abu Zubaida:
The application of techniques such as waterboarding -- a form of simulated drowning that U.S. officials had previously deemed a crime -- prompted a sudden torrent of names and facts. Abu Zubaida began unspooling the details of various al-Qaeda plots, including plans to unleash weapons of mass destruction.

Abu Zubaida's revelations triggered a series of alerts and sent hundreds of CIA and FBI investigators scurrying in pursuit of phantoms. The interrogations led directly to the arrest of Jose Padilla, the man Abu Zubaida identified as heading an effort to explode a radiological "dirty bomb" in an American city. Padilla was held in a naval brig for 3 1/2 years on the allegation but was never charged in any such plot. Every other lead ultimately dissolved into smoke and shadow, according to high-ranking former U.S. officials with access to classified reports.

"We spent millions of dollars chasing false alarms," one former intelligence official said.
Jose Padilla, the one-time "dirty bomber," was convicted of being a "terrorist wannabe." Padilla's attorneys allege he was tortured in U.S. custody and his mind destroyed.

Canadian Maher Arar was identified in similar fashion and was detained while changing planes at JFK airport. Arar received an all-expenses paid rendition to Syria and regular beatings for ten months until being released. Another Canadian, Ahmad Abou El-Maati, named Arar after two years of torture in Syria for possible al-Qaida connections. According to The Guardian (London), El Maati eventually "reeled off the names of everyone he knew in Montreal," including Arar. The Canadian government has since apologized for its part in Arar's treatment and paid a cash settlement.

Torture may loosen tongues. It may have loosened Zubaida's and El-Maati's. It may even yield "volumes" of information, but that's not justification for a war crime. As Wanda Sykes joked at the end of her White House Correspondents' dinner performance on Saturday night, "That's like me robbing a bank and going in front of the judge and saying, 'Yes, Your Honor, I robbed a bank, but look at all these bills I paid.'"

Thursday, May 07, 2009

Words by Luntz

The latest in spinmeistering by Frank Luntz has been leaked: The Language of Health Care 2009.

We comment on Politico's exclusive at CAF:
Politico's Mike Allen shares excerpts from the Frank Luntz's latest exercise in conservative spinmeistering. Allen received a bootleg of a confidential 26-page report from Luntz that is circulating among Capitol Hill Republicans. It his game plan for defeating health care reform by seeming to embrace health care reform.

"The status quo is no longer acceptable," Luntz writes. "If the dynamic becomes ‘President Obama is on the side of reform and Republicans are against it,’ then the battle is lost and every word in this document is useless."

From the extracts Allen shares, the rest of "this document" deals with how Republicans can steer constituents towards keeping the "current arrangement."
Read more at Campaign for America's Future ...

Wednesday, May 06, 2009

Do you smell something?

John Bolton in today's WaPo, wringing his sweaty hands about President Obama not nipping foreign torture investigations/prosecutions in the bud [Emphasis mine.]:
Despite uncertainties here, developments overseas proceed apace. Spanish Magistrate Baltasar Garzón opened a formal investigation last week of six Bush administration lawyers for their roles in advising on interrogation techniques. Garzón did so over the objections of Spain's attorney general, as he did in 1998 in proceeding against former Chilean president Augusto Pinochet. Under Spain's inquisitorial judicial system, Garzón is essentially unaccountable, whatever the views of Spain's elected government.
A judiciary independent of elected officials? The Horror!
Asked repeatedly about Garzón's investigation, the State Department has said only that it is a matter for the Spanish judicial system. Last week, Attorney General Eric Holder went further, implying that the Obama administration could cooperate. "Obviously, we would look at any request that would come from a court in any country and see how and whether we should comply with it," Holder said. This is deeply troubling.
Troubling indeed. Deeply troubling. "[W]e would look ... and see how and whether we should comply..." Sends a chill up your spine doesn't it? Liberal fascists.
...Garzón's is far from a run-of-the-mill police investigation in which an American tourist abroad runs afoul of some local ordinance. Indeed, from what appears publicly, U.S. consular officials would do more for the tourist than Obama is doing for the former Bush officials.
Whaddya say, John? Threaten to nuke Madrid?
There is never a shortage of second-guessers about U.S. foreign policy. For example, former U.N. high commissioner for human rights Mary Robinson said during the NATO-Serbia war over Kosovo that "civilian casualties are human rights victims." She asked, "If it is not possible to ascertain whether civilian buses are on bridges, should those bridges be blown?"
"Be sure of your target," my ass! Blow 'em to hell, John.

And here Bolton channels Tim Matheson from the student court scene in Animal House [Emphasis mine.]:
The question here is not whether one agrees or disagrees with the advice the lawyers gave, or with their superiors' operative decisions concerning interrogation techniques. Nor is it even whether one believes our Justice Department should launch criminal investigations into their actions...

Instead, the critical question is who judges the official actions that U.S. personnel took while holding government office. Is it our own executive and judicial branches, within our constitutional structures and protections, or some unaccountable foreign or international magistrate in some unaccountable distant court?
[Start humming the Star-Spangled Banner here.] "I put it to you, Greg - isn't this an indictment of our entire American society? Well, you can do whatever you want to us, but we're not going to sit here and listen to you badmouth the United States of America. Gentlemen!"

But Bolton's not done yet,
... whether or not Obama has decided against prosecuting CIA agents, his decision in no way binds the creative mind of Señor Garzón, a man who has never shied from spotlights. Indeed, U.N. Special Rapporteur Manfred Nowak has already said that the other 145 states party to the Convention Against Torture must launch their own criminal investigations if the United States does not.

Behind-the-scenes diplomacy is often the best, and sometimes the only, way to accomplish important policy objectives, and one hopes that such efforts are underway. But in this case, firm and public statements are necessary to stop the pending Spanish inquisition and to dissuade others from proceeding. The president must abandon his Ehrlichman-like policy and pronounce unequivocally that Spain should take whatever steps are necessary to stop Garzón.
[Emphasis mine.]
The Bush's administration's "take whatever steps are necessary" approach is just what led to the OLC lawyers being investigated, Johnnie. So unless you want to try another few rounds of swaggering and tough talk, if we really want to put the brakes on investigations by those other 145 states, the United States could just launch its own investigation. But that scares you too, doesn't it?

Do you smell something? That's the smell of fear sociopaths give off when cornered.

Tuesday, May 05, 2009

OPR watch

We are closer to knowing whether of not the White House Office of Legal Council (OLC) attorneys Yoo, Bybee and Bradbury will face consequences for the sorry torture memos they crafted in support of the Bush torture regime. The Justice Department's Office of Professional Responsibility (OPR) report on "memogate" is due out soon, and may reflect badly on the OLC attorneys, say news reports. "Among the questions it is expected to consider is whether the memos reflected the lawyers’ independent judgments of the limits of the federal anti-torture statute or were skewed deliberately to justify what the C.I.A. proposed," the New York Times reports.

If so, the consequences could be considerable. So far, no one wants to admit that all the king's men signed off on what they knew was torture. Each new revelation makes denying that fact more difficult, and avoiding our treaty obligations - "the supreme Law of the Land," per U.S. Constitution Article Six - even more so.

Atlantic's Andrew Sullivan puts it bluntly:
The reason this is vital is that it gets to the core of the question of good faith in authorizing the elaborate torture program that Bush and Cheney constructed as their central weapon in the war against Jihadist terrorism. If we can see that the memos were transparent attempts not to explicate the law in good faith to guide the executive branch - but were emanations of the executive branch to provide phony and flawed legal cover for already-decided illegal acts, then we have a conspiracy to commit war crimes.
Having read the Senate Armed Services Committee report, I have already made up my mind (as has Andrew).

How is giving bad legal advice a crime? The question of culpability for that was addressed last month at Opinio Juris by Melbourne Law School's Kevin Jon Heller. A Nuremberg case involving the deportation of 6,000 French Jews to Auschwitz in March, 1942 has parallels:
Scholars who believe that the individuals who wrote the OLC memos authorizing torture should be criminally prosecuted — as I do — normally cite the Justice Case, decided by the Nuremberg Military Tribunal (NMT) in 1947...

There is, however, another NMT case that does provide significant support for prosecuting the authors of the OLC memos: United States v. von Weizsaecker et al., better known as the Ministries Case... The critical defendants are Ernst von Weizsacker himself, who was the State Secretary in the Foreign Office, and Ernst Woermann, who was the Undersecretary of State and head of the Political Department in the Foreign Office...
The tribunal found that the two both knew that the deportations violated international law, and that they had a duty to object when Eichmann wrote to ask if they had any objections. They did not. Both were convicted.
Indeed, in one critical respect, the case against the authors of the OLC memos is even stronger than the case against von Weizsaecker and Woermann. The latter’s criminal participation in the deportations consisted solely of omissions – failing to point out that the deportations violated international law. The former’s criminal participation in the CIA’s torture regime, by contrast, consists of both acts and omissions, because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime.
At a minimum, the Times suggests, the report may suggest disbarment. Bush administraion officials are already "scrambling" to minimize the damage.

Git 'er done

From the WaPo, Sen. Patrick Leahy:
"The apparent predetermined outcome of these legal memos raises the question of where the demand for this outcome and for approving these policies arose. Press accounts indicate that these were not the results of requests from CIA officers on the ground and in the field, but arose through pressure from senior administration officials in Washington...."
Leahy again:
"I still believe my proposal for a Commission of Inquiry remains the best way to move forward with a comprehensive, nonpartisan, independent review of what happened."
I'm not with Leahy on a commission - a guaranteed whitewash. I'm with Conyers on a special prosecutor, i.e. Patrick Fitzgerald. Give him a clearcut mission, cut him a check, cut him loose, and have him get back to us when he's done (like with Scooter). Obama can then "I'm not going to comment on an ongoing investigation" for a couple of years while Fitz does his quiet, thorough and methodical thing.

In the meantime, we get national health care done.

Friday, May 01, 2009

The Glass is Half Full of It

Following up on Jon Stewart's April 28 Cliff May interview:

The Daily Show With Jon StewartM - Th 11p / 10c
Cliff May Unedited Interview Pt. 1
Daily Show
Full Episodes
Economic CrisisFirst 100 Days

In the first part of the extended interview, Cliff May had an intriguing interpretation of the Office of Legal Counsel (OLC) "torture memos" that I had not heard anyone make before. May contends [2:10] that the OLC was bending over backward to define the line between "aggressive techniques" and torture to ensure that the U.S. did not accidentally stray over that line. They are if anything, he says, "anti-torture memos":
Here's what they say. They say there is a line that you may not cross. You can inflict discomfort. Even some pain. But if you cross this line, it's torture. And we're going to tell you what that line is, and you may not cross it under any circumstances.
In May's view, the "glass is half full" question the memos were trying to answer was: Where is the line between coercion and torture, so we do not accidentally cross it?

That is the ostensible purpose of the OLC memos. But as reflected in the Senate Armed Services Committee report, the single-mindedness administration officials displayed in pursuing "enhanced techniques" and the careless disregard they showed for their own JAG and military interrogation experts' opposition to them (for non-CIA detainees) suggests another interpretation.

Established legal methods of interrogation went unexamined. The comparative effectiveness of the enhanced interrogation methods went unexamined. Employing the "enhanced techniques" was as much a forgone conclusion as the invasion of Iraq, and pursued with the same "don't bother me with the facts" doggedness.

Physical coercion was the only tool in the toolbox, so the OLC provided similar "get tough" advice to both the military and the CIA. Days ago, the Los Angeles Times reported on CIA Inspector General John L. Helgerson's non-review of the techniques' effectiveness:
[N]either the inspector general's report nor the other audits examined the effectiveness of interrogation techniques in detail or sought to scrutinize the assertions of CIA counter-terrorism officials that so-called enhanced methods were essential to the program's results. One report by a former government official -- not an interrogation expert -- was about 10 pages long and amounted to a glowing review of interrogation efforts.

"Nobody with expertise or experience in interrogation ever took a rigorous, systematic review of the various techniques -- enhanced or otherwise -- to see what resulted in the best information," said a senior U.S. intelligence official involved in overseeing the interrogation program.

As a result, there was never a determination of "what you could do without the use of enhanced techniques," said the official, who like others described internal discussions on condition of anonymity.


The limited resources spent examining whether the interrogation measures worked were in stark contrast to the energy the CIA devoted to collecting memos declaring the program legal.
Much like the energy Cliff May and Bush apologists have displayed in defense of both the memos and the legality of using the enhanced techniques. More like CYA than CIA.

Their efforts suggest that the "glass is half empty" question the torture memos were really trying to answer was: Just how much pain and suffering may we inflict on a detainee and still plausibly deny that we are committing war crimes?