And I wonder if this is a coincidence. The first CIA OIG referral was on February 6, 2003. Two days early this happened:

Document Description : This document is a two-page memorandum for the record summarizing a briefing to Congress on a particular set of issues. The document is dated February 4, 2003 and bears the
classification TOP SECRET//SCI.

It runs the whole gamut, doesn’t it? The comparison the IG’s report has of the treatment of Gibson and his bragging revelations of torture and detailed info, which OPR found “too vague” to do anything about and which DOJ’s Public Integrity crew was “disinclined” to pursue vs. the rack and dunking stool meted out to an agent who merely had a letter delivered to Mueller using “unauthorized” means (a common mutual acquaintance) where the real punishment OPR was meting out was for being critical of the interrogations; it’s just one more and one more and one more instance of all of DOJ being nothing but either a bunch of loyal Bushies, pandering in support of depravity, or self absorbed egoists who don’t give a rats ass about the cost as long as their careers thrive.

If Priest’s story of a “young” detainee being slowly frozen to death are correct and if that was one of the referrals, I’d be really interested in discovering how it is that Fisher could be so forgetful about that.

But once again you have a situation, complete with criminal referrals, and no one in DOJ requires preservation of evidence. When I start to wonder which is “more corrupt” Public Integrity or Crim, I kick myself for being so stupid bc the answer is easy. Most corrupt have been the AGs and DAGs who have, each and every one of them, led assault after assault on law and justice and professional ethics and obligations to the tribunals.

28 – that is a wonderful piece at that link JL. Thank you.
30 done it needs to be Yes it does. But maybe in this episode the dark side wins? I hope not.

36/37/40 – Yep – Wray and he was also listed by the MSNBC articles as being on the GITMO excursion trip Sept of 2002, right after the GITMO interrogators came back from their reverse SERE training with their shiney new torture badges.

38 – Those are kind words and I understand your point. It’s just that there reaches a point when kicking the wall and fighting doesn’t do anything to revive that comatose patient and you have to accept that what is, is.

I’ve always been like most people a “cynical-believer” with a lot of scepticism mixed with that soft spot that always remembers that, now and then, someone does the right thing. But the right thing at a horribly wrong time doesn’t do much. Stopping to help the dog hit by the car while its still breathing gives it a chance. After driving casually by the rotting corpse for seven years, there’s not much to be hoped for if someone suddenly decides to rush that pup to the vet.

OTOH, maybe I just don’t have the resilience to see that there’s still some effort that might be successful. Samantha Powers gave a great commencement speech which is up at Huffpo http://www.huffingtonpost.com/…..03886.html and her point about resilience is well taken.

49 And from page 34, the War Crimes Act is not applicable to conduct toward members of the Taliban or al Qaeda pursuant to the “Treaties and Law Memorandum” of the Justice Department. This precludes criminal prosecution of US nationals for war crimes against Taliban or al Qaeda.

And it was as it became clear that lots of the victims of kidnap, torture and abuse were not member of the Taliban or al-Qaeda, that the Kangaroo CSRTs were put in place. Because even the worst of the OLC opinions didn’t extend the pretext that these crimes could be freely committed against innocent civilians.

Which is why Congress, in all its glory, did what the opinions could not by passing the MCA. With the MCA, everyone who went through any Kangaroo COurt CSRT is conclusively presumed to be an enemy combatant and they all lose their habeas rights anyway, no matter where in the world they are being purchased and abused, so there’s no forum for them.

43 – that could be, but for once taking the less bleak view (with regard to Rosenberg only) Rosenberg pretty much had to recuse himself period, whether he had anything to do with any CIA referrals or had any knowledge of the evidence being destroyed or not. What was being investigated were lies made by his office to the court – he can’t ethically be the one to investigate on that, he has too great an interest as a party to the fraudulent incorrect pleadings and discovery responses filed.

59/60

Yoo being so wrong is why they needed the MCA so badly.

Rasul held that a STATUTORY habeas applied even at GITMO. That was a bit of a shock to DOJ (because of Eisentrager), but they took a stab at “fixing” that with the Levin co-sponsored Detainee Treatment Act. The DTA revises the statute that provides statutory habeas and made that statutory habeas inapplicable.

So Hamdan went up on appeal. Hamdan was a case where the suit had already been filed before the DTA was passed and the habeas issue on appeal was whether or not the revised habeas statute (revised by the DTA) applied prospectively only (to cases to be filed AFTER the revisions) or retroactively to cases already filed. The Sup Ct said that the DTA only applied to prospective cases and they didn’t have that situation before them with Hamdan, they had an “already filed’ case.

But the court left open whether or not Congress COULD, with better drafting, take away habeas period, for cases already filed as well as future cases. And to be honest, they really made a lot of noises in the several opinions indicating that sure, if Congress worded it correctly and provided an “alternative” (like the military commissions) to habeas, then they probably could get by with it, at least vis a vis statutory habeas.

Now, that still leaves some complex habes questions, but in general, what Congress did with the MCA
(thank you Harry Reid for not even trying – and a nod of appreciation to Clinton and Obama and Biden for making almost no effort as well – Chris Dodd is gold)
was to draft
(ok, DOJ did the drafting and maybe someone like Bradbury who, slimey though he is, has shown in other settings that he can draft)
a revision to the habeas statute that made the DTA suspension of habeas tame by comparision.

The MCA, unlike the DTA, is not limited to GITMO and covers all the black sites as well. Habeas is suspended worldwide, basically, for anyone who gets the label “enemy combatant” which can include a wide net of people providing “material support” (I guess like that from McCain’s lobbyist crew) The MCA is not limited to prospective cases and clearly disenfranchises all cases. It preserves a pretence of appeal rights by allowing an appeal of ONLY whether the MCA followed its own rules
(those rules allowing for torture testimony, secret testimony, yada yada)

So what Rasul and Hamdan giveth, the MCA very clearly taketh away.

There will have to be a different giveth from the S. Court (like a finding of inherent habeas, or my fave – that the MCA is attainder legislation – or a finding that the alternatives are too flawed – etc. ) if habeas will still be available after the MCA.

And the reason for that long spiel is that, without habeas, Yoo isn’t really “wrong” in a practical sense. If the right has no remedy, there’s no right. If a “wrongful” determination of enemy combatant has no access to any court to order relief, then in all practicalities, Yoo is basically right in effect even if he screwed the pooch on causation.

So while Bush and his unilateral executive and a bunch of torture advocates running DOJ couldn’t suspend habeas, now they have enlisted the services of Congress as well and they’ve done it in a way that tracks some of what the court indicated could possibly be done.

And all of this goes to the Geneva Conventions findings as well. Because the only way the GCs applied, since we do not have enabling legislation per se for the GCs, was this way (IIRC). First Stevens said that the Uniform Code of Military Justice applied to the military at GITMO. Second he said that the Constitution gives Congress, not the President, the right to make the rules and the President can’t override this Congressional right unilaterally (shooting dead the Beaver memo that asserted the Nuremberg defense – that it was ok to violate the UCMJ as long as a superior officer ordered it). Third, the UCMJ incorporates by reference the “laws of war” so Stevens said, the GCs are a part of the laws of war, and absent a specific provision in the UCMJ to the contrary, if the laws of war are incorporated, then the GCs are incorporated.

That’s the flimsy thread from which Hamdan hangs. So the “victories” of Rasul and Hamdan both rely on interpretation of Congressional legislation. Which legislation has now been changed by the MCA. So the per se holdings from Rasul and Hamdan don’t apply anymore.

Plus, Congress went that next step and made it irrebuttable that someone IS an enemy combatant as long as a CSRT found them to be. That includes the old, Kangaroo court CSRTs. That includes the CSRTs that a collection of Federal Judges had already on the record overruled as being clearly contrary to fact, in cases like Kurnaz and the 5 Uighurs who were eventually shipped to Albania.

The more you know, the worse it is. I still have a hard time thinking the Democratic party is worth a damn after it failed to fight on this, even while the Arar case was headlines right before the vote, and even with international press reporting Rice’s admission of our kidnap and torture of “mistakes” to Merkel prior months prior.

58 – how is there any real recourse there, though? For the victims or against the criminals? I mean in a real and practical sense.

The only real possibility out there is the War Crimes Act. It is, in essence, enabling legislation and while it doesn’t give the victim of Presidential war crimes habeas, it does provide recourse against a war crimes perpetrator and defines, legisaltively, those war crimes in terms of the Geneva Conventions. The reasons that the War Crimes Act has had no impact to date are: Ashcroft, Bybee, Thompson, Goldsmith, Comey, Bradbury, Gonzales, McNulty, Keisler, Clement, Mukasey, Filip – – although you can add Chertoff, Wray and Fisher if you want.

The very top decision making levels of DOJ have not only decided not to prosecute the war crimes, but to give “secret” authorizing opinions (which aren’t worth anything and can’t be formal opinions of the AG office if issued in secret IMO) and to invoke state secrets to cover up crimes and to encourage the destruction of evidence, obstruction and lies to the courts and congress, all the while refusing to perform their statutory obligation of enforcing Congressional subpoenas.

If you get a “democratic” AG, then what? No one wants to prosecute CIA agents and VPs and Presidents – meaning none of the candidates. Lots of questions from a real investigation are going to be as embarassing for Dems as for anyone. Bill Clinton’s first renditions, Pelosi’s knowledge of and complicity in torture authorizations when she took impeachment off the table, etc. Can you deal with it by a real independent counsel (not an in-house appointment like Fitzgerald or Durham)? Maybe, but Congress would have to give you the legislation for it, and with so many leaders in COngress likely to be left footed if the investigation is “real” I dont’ expect to get it from them.

Things aren’t completely boxed in, but for as stupid and idiotic and immoral and depraved as the Bybee and Yoo et al opinions were, the practical effect so far is pretty much the same as if they were gold. And that may be the legacy and practical outcome of it all.