The Changing Story on Past Torture Investigations
Two months ago, when the torture apologists looked like they were succeeding in preventing a torture investigation, they claimed to a credulous Jeffrey Smith that the CIA IG Report "did not provoke a specific CIA "referral" to the department suggesting an investigation of potential criminal liability, and no such investigation was undertaken at the time." Of course, that claim conflicted with the CIA IG’s own admission that documents show a total of five criminal referrals made over the course of the investigation.
Well, now that it looks more likely that Eric Holder will launch an investigation, the CIA claims that DOJ investigated 20 criminal referrals.
"This has all been reviewed and dealt with before," says Paul Gimigliano, a CIA spokesman.
After the IG report reached Justice, a task force was set up in the U.S. Attorney’s Office in Alexandria, Va., that reviewed about 20 criminal referrals of detainee abuse sent over by the CIA and military criminal investigators. Officials familiar with the referrals have said they were horrific: one involves allegations that a naked prisoner in CIA custody in Afghanistan froze to death after being left in a prison known as the "salt pit."
But task-force prosecutors say they ran into a host of problems, including a lack of witnesses and forensic evidence, and declined to prosecute in all but one case. "We wanted to make these cases, but they just weren’t there," says Rob Spencer, the former career Justice prosecutor who headed the task force until 2006. Ken Melson, who oversaw Spencer’s work and was appointed by Holder as acting Alcohol, Tobacco, Firearms and Explosives director, says the cases were "looked at aggressively" and without political pressure. "I think we made the right decision on these cases," he says.
Of course, all three claims are likely true: CIA made no "specific referrals" … "when the report was finished," but did make five referrals over the course of the investigation. And, once it took a look at the report (and probably once it looked at a bunch of military referrals), DOJ reviewed 20 cases. It’s funny, though, how zero can become five can become twenty as the need for different spin arises.
Nevertheless, Newsweek’s sources hint, a fresh investigation may be able to make progress even without looking at the architects of the torture program.
(The aide hints that there may be new information that has influenced Holder’s view on the subject.) Still, Justice officials say any review will not involve investigating senior Bush officials who ordered enhanced interrogation techniques.
One potential source of that new information is John Durham’s investigation into the torture tape destruction, which seemed to take on new life in February, after Bush and Cheney left office.
Ultimately, though, Holder may be facing circumstances in which there is more evidence against the torture architects than against the torturers themselves. Yet, it seems, he’d still rather prosecute the "few bad apples."
Durham…
John Yoo: “What, me worry?
So what is the allegedly at best big tough John Durham going to do? Prosecute the grunts, who upon orders, physically took the tapes out back and smashed them with a shovel?
No shovel. It was that damn fire at OVP’s place.
Proposal: The new Intelligence Committee Investigation:
Should be labeled “The House Committee on Unamerican Activities (HCUA-CHENEY-STYLE)
Oh Good Grief. What a fine idea. Does the timing fit?
No. Tapes destroyed late 2005; fire late 2007.
BTW, do we actually have proof the tapes were destroyed in 2005? or do we only have other person(s) word for it?
Now I think Mullen is trying to inoculate himself against future torture to be carried out through McChrystal’s orders.
I think you’re right. Thanks for keeping on McChrystal, Jim: he is not just U.S. commander in Afghanistan but head of the whole ISAF mission, a historic shame for all the rest of us.
Let’s take a step back. If we go back to Abu Ghraib, we have criminal prosecutions, we have the memos justifying the torture from Yoo, Bybee, and Rumsfeld, we have the chain of command. Now their is a legal either/or analysis that is absolutely deadly for those who took part (and for the principals, we have the documents and more shown above). Either it was illegal from the beginning of the conspiracy, under which theory the “color of law” arguments were merely acts in a criminal conspiracy to commit torture, OR the legal arguments were made in “bad faith” because they were never intended to stop the prosecution of anyone except the lawyers that wrote them. We already have guilty verdicts for the same acts that Yoo, Bybee, and Rumsfeld approved. All we need now is a grand jury and a willing prosecutor.
It spreads like sand, which spreads like water–like water leaking through. Quite unstoppable (I think of sub-Saharan Africa).
DOJ and everyone else can try to control the tempo, but the process cannot be stopped. Patrick Fitzgerald understood this very well: he rather “launched” the process by referring to that “cloud” in his report.
bmaz@ 3,,,
I have an entirely different take- for reasons that nmvoice@7 outlined -I do believe Team Holder is slow walking this red herring of not going after the ‘prinicipals ‘ until they have enough evidence to take the whole bunch down. My money is also still on Durham being the SP
Yes, I have heard that hogwash before. Yes, of course, they are simply lying through their teeth when they say they will NEVER go after the higher ups responsible for the heinous acts. And based upon them supporting that statement with every fiber of their being under both this and the last administration, we should believe exactly the opposite. Again hogwash. somewhere in the great hereafter, PT Barnum is waiting for those that believe in eleven dimensional chess.
And two other things. They are NOT trying to collect evidence, they are fighting like hell to NOT make any effort whatsoever to do so. They are slow walking alright, slow walking until the freaking statutes expire. Do Nothing Durham so far hasn’t shown diddly squat for his efforts other than the statement he was ready to quit before Foggo fell in his lap. We might as well wait for magical ponies and unicorns too.
One point of light in the funk that has us both in its thrall – the OTHER two legs of the conspiracy – torture to death and waterboarding – they don’t have any statute of limitations, as they are capital crimes.
Death has no statute of limitation, I do not believe waterboarding has any status other than “simple torture” so long as there is no death that results therefore it would have the regular eight year statute.
It is covered under 18 USC 2340-2340A and 18 USC 2441.
But if “simple torture” is also reclassified as a “war crime,” there is no limit, yes?
Fraud Upon the Court
This applies to Yoo, Bybee, Haynes, Addington, Etc.
Far as I can tell, if there is no death, the statute is still 8 years at best, but that is from a quick reading FWIW.
Torture without death is still a capital crimes which may be punished by “life in prison, or any term of years”. Therefore no statute of limitations bar. Even at eight years, we have until 2010.
18 USC 2340 et. seq. is NOT a capital offense. The maximum punishment is “not more than twenty years”.
18 USC 2340A:
Yes, it is a capital crime.
That is exactly what I said when we started off. For death there is no statute, for anything and everything other than death, it is not a capital offense and there is a statute of limitation. That includes waterboarding.
This is really all a quite silly exercise since Obama swears he will never go after superiors in charge.
Sorry about the aggravation. Thats what I get for skipping back and forth between posts. I agree Obama does not want to prosecute – but his hand may be forced. I also agree with Mary and others that they are letting everything be documented for a ground swell of “demand” that prosecutions occur. I think this summer may be it.
Admittedly it is a difference that makes no difference, but it seems to me worth stressing that the decision is Holder’s not Obama’s. The fact that Holder won’t go there simply proves that DoJ is not sufficiently independent of the WH.
Pity they exempted conspiracy to torture from the death penalty, if only for the statute of limitations implication.
By the way, where are people getting the 8-year SOL for non-capital violations of this statute from? I’ve looked for it, but haven’t found it.
bmaz was kind enough to answer my question about the SOL on another thread.
His answer was that 18 USC 3286 makes the SOL eight years for torture. For the benefit of other readers (since 3286 doesn’t mention 2340 or 2340A or 2340B explicitly,) let me explain. 3286 incorporates 2332B, which refers to 2340A.
18 USC 3286 as amended in 2001.
I’m not sure how it plays into the criminal asepct v. civil aspect, but the Torture Victims Act has a 10 yr sol. The suit by survivors of My Lai against soldiers was tossed on the basis of a 10 yr SOL, with the murders apparently not serving to extend it.
http://www1.umn.edu/humanrts/instree/x4cnaslw.htm
Convention on the Non-Applicability of Statutory Limitations to War Crimes and CrimesAgainst Humanity
I don’t think the US is a signatory, although I think Afghanistan and Cuba both were/are, and I think for our European co-torturers or multinational corporate torture partners, there is also a Eurpean convention of some kind on this.
Before his wife became such a hot topic of DOJ investigation, Conyers had indicated a desire to extend SOL for torture. Kind of like Wecht being willing to testify as to murder (despite the blank eyed stares topping saliva wet chins of DOJ investigators who couldn’t find any evidence of crimes) and then getting sidetracked with full blown investigations and federal charges over sending a fax. And didn’t Mary Beth (that one, not this one) manage to find time to help out on the USA firing scheme while she was prosecuting Wecht?
Oh – wait – maybe the reason the ED of VA couldn’t put together their info was bc Mary Beth was asserting law disenforcement privilege – to keep a witness and his evidence tied up with federal prosecution so he can’t be used in a war crimes trial?
Exactly. I think Wecht and Buchanan and their role in re: torture has come up in thread before.
bmaz (55) – we get the heroes we deserve. Maybe not at a personal or individual level, but there you go.
The longer nothing moves quickly, the more news stories come out (and more court cases deliver documents) that remove more and more of the doubt.
Regardless of whether Holder is slow-walking, information has come out over the last six months that have essentially quieted all talk of exchanging immunity for “truth” in a truth commission. And Cheney has done a fair amount of self-incrimination in his defenses.
With a press that wants to embarrass the Obama administration, it is only a matter of time before they start accusing the Obama administration of covering up war crimes. When the MSM does it, it will have a different effect from the criticisms of a few DFH bloggers.
Cheney is desperate enough now to send out MiniDick to defend him, but with claims of not knowing the secret stuff and therefore nothing specifically exonerating.
mornin’ Emptywheel and community –
just now found this WaPo pdf providing some details on the torture of children in a Big Orange Diary
forgive my haziness, but is this ‘document’ news to this community ?
I think the Kasim Hilas eyewitness statement is pretty well known.
I’ve got an Abu Ghraib timeline diary, with the event in some context:
www .dailykos.com/story/2009/5/21/734169/-A-Deeply-Unfair-Cast-of-Mind
Aside from statute of limitations concerns, these events are expressive of the difficulties of prosecutions at a low level now. Months not years after, Army CID could not even figure out who the 15 year old was (it took missing or overlooking a medical log entry to do that). Iraqi eyewitnesses and victims, generally, would be unfindable.
And then there’s DiFi.
July 20, 2009
Feinstein: Cheney may be asked to talk in CIA investigation
@ 10:58 am by Michael O’Brien
“Former Vice President Dick Cheney and other Bush administration officials may be called to speak before the Senate Intelligence Committee “down the line,” its chairwoman said Monday.
“Sen. Dianne Feinstein (D-Calif.), who chairs the committee, said that those officials may be called to testify or reveal details in an investigation into whether details about a CIA program were deliberately withheld from Congress, but warned against a perception of “recrimination.”‘
“>More.
bmaz@10
never once have I mentioned eleven dimensional chess-
and time will tell whose hog does get washed,
and here’s a prediction some of the former Rummy OSD staff when deposed will make it very hard for the former sec of def not to help the ongoing prosecutions that will flow from all of this growing mountain of evident wrong doing -everyday it is being better documented ,,,,
and waiting in the wings the ICC and or Hague …
The US is not a signatory to the ICC and is what is known as an observatory participant, at best, and will not extradite to the Hague; reliance on those two is simply laughable. I would sure like to know the source of all your wild claims, because they sure are not rooted in any facts I can see extant.
And the rest of the world is laughing at us. They have the IIC and the Hague as venues of last resort for prosecuting its despots. The US prefers to harbor its own, permitting them to morph into more virulent strains.
bmaz is a barren and rocky field in which your seeds of hope will find no purchase. Don’t take it personal.
True. I actually like to see the existence of a tangible product before I purchase. I am just a hopelessly misguided soul I guess.
Naw. Our tanks are on empty, and we need a sweet hit (Louisville Slugger
like to crack open these long, long, drawn out legal battles).
Time has never been of the essence, look at fucking Lieberman who wants
to delay health reform… The guy should be banished from the Democratic
Party… he fucking pisses me off…
I think you can only claim being misguided when you are wrong, and over the past couple years your desert instincts have usually proved true. However, you do have a prickly persuasion, especially when disembowling the idolaters.
No one got my “Raising Arizona” reference?
D’oh! I love that movie. Totally missed the reference. It’s hell getting old ; )
I get cranky after a while; you are right that I should not do so.
From the transcripts of prototypical CIA interrogations:
He is a desert-dweller after all. I like to think of him as half cactus, half scorpion, and all charm ; )
And fwiw bmaz, I agree with you completely. No excuses for me I guess ; )
A new report in the Washington Post reveals that some interrogators threatened to quit over harsh methods used in interrogations. Joby Warrick talks with MSNBC’s Chris Jansen.
http://videocafe.crooksandliar…..it-over-wa
“There was some push and pull that came from surprising places within the CIA as the interrogation program was going forward, including from some of the interrogators themselves whose resistance to things like sleep deprivation and nudity in the beginning — and when waterboarding started some interrogators revolted and said, after four, five days, they refused to do this, some threatened to quit,” explained Warrick.
I find myself surprisingly comfortable with how all of this is playing out. The information is making its way into the public domain at a steady rate. The New Administration has moved from “looking forward” to “looking into” [on the way to “looking at”]. We’re beginning to get stories like Internal Rifts on Road to Torment that make it abundantly clear that the pressure was coming from the top. And the longer this whole thing drags out, the more whistles start blowing.
Obama’s team is better off if they are forced to investigate and prosecute than if they lead the way. It’s sure not the way I wanted it to go, but the magnitude of the crime is making it happen against all kind of gradients, and that’s pretty cool. Premature investigations and prosecutions cut off the flow if the data, and frankly, I think it’s even more important for it to be in the public eye than in the courtroom.
So it is better to investigate the crimes after the people who committed the crimes can no longer be charged? And we are supposed to believe this is a smart way for it to all go down and Obama is to be praised for making us force him to do his damn Constitutional duty and job? Wow. I really do not understand this thought process.
The conspiracy can still be charged, if it is active, even if the original acts are past the statute of limitations. I forget the case, but it is because conspiracy is a freestanding crime on its own.
It is very difficult to convict when the overt acts behind the conspiracy cannot be charged. Witness the Carona prosecution and verdict in Southern California.
Understand it is difficult. Just not impossible as going against statute to limitations without some kind of tolling action.
So the ED Va got the nod on the investigation of the CIA crimes and lo and behold, Gonzales then installed Paul McNulty (USA, ED VA) as DAG. McNulty put Ken Melson in charge of the CIA murders and torture investigation and lo and behold, Gonzales then installed Melson in Battle’s slot at EOUSA after the USA scandal broke. Rob Spencer was somehow both blocking access by Moussaoui to Zubaydah and KSM etc. for exculpatory info while at the same time supposedly investigating the torture of … Zubaydah and KSM and others? And then Spencer gets his Lockheed appointment.
And while all these referrals were coming in – where were the demands to preserve evidence? And if there were active investigations of all this – emanating from the ED VA, then maybe a whole battalion of Judges, not the least of which should be Brinkema, ought to be getting Spencer and Melson and McNulty’s butts in front of them to explain how it is that so much evidence was destroyed and not provided to defense counsel etc. in so many different pieces of litigation.
Whatever the hell they did or did not do on prosecutions, they sure as hell violated rules of evidence and candor to the tribunals etc. All of them and none of them should be allowed to practice law period. And of course, where is that OPR investigation of DOJ’s failure to be truthful with the courts? Failure to turn over exculpatory torture info to defendants?
Whatever – no one is going to undo this mess. This boys club who have all gotten their payoffs and appointments instead of losing their licenses will continue on with a legacy that includes not only delegitimizing the Dept of Justice and the Executive branch, but also delegitimizing the Legislative branch and the Judicial branch.
And the nation.
All to protect their own asses and their friends and pals and to walk off with payoffs appointments, keeping the club intact. Someone needs to give Dante a re-write – he left out a circle.
Great comment Mary (per usual), but this is an excellent reminder of where the USA attorney scandal ties in with torture. We knew people were removed for not deferring to the political whims of the WH, but we always wondered what those who kept their jobs did do on behalf of the WH. Apparently in the ED of VA it was not prosecuting CIA crimes.
Excellent point on timing, Mary. It may well explain why Holder has found new information–because Durham might have found it in the torture tape investigation.
I think Obama really meant all that stuff about bringing Democrats and Republicans together..and if that’s the case, he can’t be seen as the guy pushing for prosecutions. He has to be able to say, “I had no choice…”
“For the want of a Patriot, the Republic was lost”
And that crap about evidence – who did the ED VA send over to the salt pit? And you had a CIA officer (who has since been receiving promotions) with one of those “high value al-Qaeda operatives” that you “had” to have, under the Yoo memos, in order to torture them with hypothermia – and their detainee freezes to death and so becomes “unavailable” for more torture interrogations and there are no communications to Langley? No CIA cables (or IMS) saying, “oops” or “hey, a funny thing happened yesterday guys, ya know that high valued al-Qaeda operative I was torturing?”
Really? You mean not only do high value al-Qaeda operatives like Bin Laden evade CIA capture for years, but even when they are captured, no one at CIA is paying enough attention to know when they are “lost?”
Bull.
If Lockheed needed to have a witness to the murder found in order to secure its next fighter plane contract, I’m betting Spencer would have been able find some evidence. But I guess it’s a higher calling – working for Lockheed than working for Justice.
I worked for Lockheed (under contract). But I have to agree with the general theme of your remarks. Do we have a rule of law when the prosecutors won’t prosecute and the judges won’t hold people accountable? And HOW DO WE FIX THIS?
And don’t forget that Big John Durham, the supposed guy who is going to wrap everything up in a nice bow, is the longtime friend and compatriot of Kevin O’Connor, the guy Alberto Gonzales picked to be his AAG/chief of staff at DOJ.
Well I know many of us were saying all during the campaign that merely changing the head can not change the nature of the beast so the really hard work would begin AFTER the inauguration.
That has proven to be true.
Progress is happening far slower than I think any of us would like, and in many cases we’re actually seeing regress. But I think there is evidence here that perhaps some people may actually be held accountable despite the best efforts of the establishment.
We shall see, but in the meantime let’s keep our noses to the grindstone.
Wow! This is cool.
The most extensive archve of info I’ve ever encountered is a blog journal by a man named Mark G. Levey.
How he knows so much is areal mystery,but it is breathtaking in its depth,breadth and scope.
Here’s a link to some CIA torture history.PLEASE avail yourselves,but be apprised that these are extensively researched pieces-not whimsical fluff pieces.
A veritable treasure trove containing years of annotated info.——-
leveymg’s Journal – Archives
Why did Bush-Cheney and the CIA Destroy the Minds of 9/11 Detainees? Others Disappeared or Dead.
Posted by leveymg in General Discussion
Wed May 20th 2009, 11:49 AM
Abu Zubaydah, Abu Zubaydeh
The question is being asked, why did the White House order the CIA to waterboard 9/11 suspect Abu Zubaydeh 83 times? That’s an important start to this line of inquiry.
Here’s a more telling question: why did they waterboard AZ without monitoring his blood-oxygen level, which predictably resulted in his brain damage and memory loss?
The CIA dramatically altered the protocol for waterboarding by March 2003. Specifically, The ICRC report description of the waterboarding of AZ and KSM is almost identical with the exception of one detail.They stopped waterboarding after KSM in March 2003. This suggests they knew waterboarding was prone to “ADVERSE EVENTS”. See, http://www.dailykos.com/story/2009/4/27/72…
***
This wasn’t something that was done in some isolated cellar by untrained goons. The waterboarding of AZ was carried out at Baghram Air Base, where it was overseen by a team of experts in waterboarding who had developed the SERE program for the U.S. military. These contractors were paid a thousand dollars a day each plus expenses for their subject matter expertise. CCTV video cameras were “everywhere” according to CIA officers interviewed, broadcasting every one of these interrogations back to Washington and Langley. Each painful step of these interrogations had to be approved in advance.”
A war of Aggression has no statute of Limitations, does it ? Torture, Murder and Treason is there a S. of L.?
I myself believe we evolved to a higher plain, after the destruction of WW2 and the dawning of the Nuclear age adding to the weapons on hand, to prevent further world wide conflict. The Nuremburg War Crimes Tribunal, though not perfect, brought to light the creeps behind the evil unleashed.
We can look back to a time when might made right in warfare or move forward to reapplying the Geneva Conventions and the Nuremburg Protocols which advanced mankind. Or we can encourage the base instincts of a violent group of thugs , causing self-reinforcing behavior in a downward spiral.
Otherwise, is there a reason with the Democrats in firm control ,not to join the ICC and let them fairly judge these creeps. That would take away any claims of partisanship. We should strip citizenship of any guilty party after any convictions.
More on Spencer, the Zacarias Moussaoui trial 2/08 and the tapes destroyed by the CIA, story.
Thanks for the link Neil. Haven’t seen you around for awhile — good to have you back. By the way, was head injury required to serve in the BushCo admin? None of these people can ever recall anything…
Thanks Phred. How are you?
Good thanks : ) Summer is my busy season, so I’m in and out around here these days… Hope all is well with you!
Meet the Torturers
http://www.harpers.org/archive…..c-90005398
One of the most striking things about this Washington Post story is the extent to which the entire torture process was driven by healthcare professionals. The account makes clear that contract psychologists Mitchell, his partner John “Bruce” Jessen, and CIA psychologist R. Scott Schumate played a vital role in the entire process. It also makes clear that, contrary to the official Bush White House account, under which they were responding to pleas from the ground to “take the gloves off,” in fact the stuggle was consistently between handlers who wanted to stop or limit the rough stuff, and unidentified people in the pinnacles of power in Washington whose appetite for brutality could apparently never be sated. Who was calling the shots? The story tells us that the approvals came from “downtown,” agency jargon for the White House.
And who was talking to “headquarters” and pressing them? If you’ve read Jack Goldsmith’s book The Terror Presidency, this cajoling and threatening will sound familiar. In his book, the man consistently on the delivering end was David Addington.
Eric Holder may want an inquiry which looks only at what happened in the room in which Abu Zubaida and prisoners like him were held, but this account demonstrates yet again the extent to which the pressure for the use of the most abusive practices came from the highest decision makers. If an investigation is launched and it fails to examine closely the role played by policy-makers and their “the law is no object” rogue lawyers, it will be a travesty.
From that story:
So the reasonable assumption is that project was an “investigation” into 20 or so criminal torture and torture-murder referrals and the other attorney likely was Melson.
It was an investigation so thorough that the lead doesn’t recall being told about the tapes and his supervisor mentioned it to him on ONE OCCASSION?
Good lord.
And notice that Melson’s gig at Lockheed is compliance. Now THAT is the kind of compliance atty all multinationals would love to have.
It’s not wonder Comey knew about the tape with his ED VA ties. And no wonder that he didn’t hand over any heads to the various courts who were being defrauded and misled.
Wait. You mean Comey isn’t a hero?? Oh my…..
OT – Per AP:
Oops, didn’t see your post!
No problemo! I do the same myself all the time. *g*
And more juicy bits via the WaPo:
Read the whole article to see how the CIA played “hide and seek” with Judge Lamberth.
And even more juicy bits via the AP:
Should there be a kind soul hanging around with Pacer access (hint, hint), twouldn’t mind reading that whole opinion.
Ooooh, unsealing “200 unclassified versions of classified filings”!
I been working on this for a while now. There is a lot to plow through, but I will have something initial shortly.
You’re just the kind soul I was thinking of. *g*
Has THIS been mentioned here yet?
Judge Rules CIA Committed Fraud In Court
digg—
” A federal judge has ruled that CIA officials committed fraud to protect a former covert agent against a lawsuit.
According to court documents unsealed Monday, U.S. District Judge Royce Lamberth referred one CIA attorney for disciplinary action. The judge also is considering sanctions against five other current and former CIA employees, including former CIA Director George Tenet.
The suit was brought by a former agent with the Drug Enforcement Agency, Richard Horn, who says his home in the nation of Burma was illegally wiretapped by the CIA in 1993.
Tenet filed an affidavit in 2000 asking that the case against the former station chief in Burma, Arthur Brown, be dismissed because he was a covert agent. But Brown’s cover had been lifted in 2002, and the CIA continued to say he was under cover.”_———————–Nedra Pickler,7/2/09
@ 63
I have privately speculated that there were backup tapes and documentaion involved.
And you can believe that they will go to the highest bidder.
It could be blackmail material if we don’t remove those potential blackmailees.
Every once in a while you hear murmers from the administration that they’re afraid of investigations like this because the Republicans will call them “political”. Hell, given the roadblocks that the Obamaites have constructed and their repeated attempts to defend, sustain and extend the illegal policies of the Bushies, once we’ve tried Cheney and company, I’m more than willing to go after Obama for war crimes and domestic surveillance. Let the chips fall where they may, regardless of party affiliation!
I never thought ANYBODY could be as insufferably pompous or arrogant as Dick(less Cheney,until I caught Addington’s performance at a Congressional hearing not long ago.SHEESH!
Here’s an intersting blogger commentary about Addington,from ‘06,by a fella named burtman.Veddy interesting….
“Some constitutional scholars have questioned whether Addington, in his eagerness to expand the powers of the Presidency, which he and Cheney see as having been unduly diminished since Watergate, gives enough weight to the legislative and judicial branches of the federal government.
Some have suggested that he has aggrandized the powers of the President in such a way that the executive branch ignores the system of checks and balances set up by the Founding Fathers, so that its actions are unchecked and unaccountable.
Bruce Fein, a Republican legal activist, told me that he regards Addington as an adequate lawyer but an inadequate student of American history, because he believes that Addington has failed to understand that the Founders designed the U.S. government specifically to insure that the executive would not have unlimited power. Fein suggests that the Founders, unlike Addington, understood the perils of concentrated power. They had seen in George III, among others, what tyranny meant.
What is the New Paradigm?
It’s a shorthand term that comes from a memo signed by Alberto Gonzales but believed to have been written in part by Addington, in which the authors articulated that the attacks of 9/11 required a legal response beyond the confines of ordinary criminal law and ordinary military law. Instead, they said, a “new paradigm” was called for, allowing the government to emphasize detection and prevention of crime, at the expense of more traditional notions of due process. Their aim was to stop terrorist attacks before they were perpetrated. To do so, they felt they needed to interrogate, detain, and try terrorist suspects in ways that would not be permissible under U.S. or international law. The New Paradigm has come to refer to all of the novel legal policies that the Bush Administration has forged in its approach to the global war on terrorism.”
I think that aside from the obvious disrespect for any law(s) written by Democrats or any law(s) which bind the Executive, especially in war time, there is an idea of the far Right that Law itself is questionable because words can be misinterpreted, bent twisted or misrepresented, so that they are really impossible to pin down.
This is evident to some extent in the supposed ‘literalism’ and ‘textualism’ and ‘plain reading’ phrases we often hear from SC Justice Scalia and others. It also explains in part how they can overturn ancient precedents without admitting it. They say it’s just their interpretation.
They are fundamentally anarchists who refuse to be bound by anyone outside their group. This makes them not traitors, but self-inflicted exiles who live within our Society, but without admitting to it’s authority. Then they take it to the next level by winning an election and going into positions of authority. Thus, George W. Bush was heard to exclaim to one of his friends after the 2000 selection (something like) “Can you believe this, that I’m going to be President?” Most people would be exclaiming their good luck, but I think Bush meant it was outrageous to think that someone like him who so opposes our Society and Law should be put in charge of it. No, I could not believe it.
Two new questions need to be added to all bar exams:
Whether or not a President may rescind or modify a signed and ratified treaty by executive order?
Whether or not a President may rescind or rewrite the Constitution itself and the laws of the United States by secret memoranda?
Will that raise the bar?
or will it be low hanging fruit for lawyers to debate?
The system designed by the founding fathers was pretty simple. Congress passed laws, revised laws, and under very special circumstances with a ratification by the States, could modify the Constitution. The Executive branch could only execute the laws that Congress passed. The Judicial branch could only deal with real cases and controversies arising from the law. Nowhere does it say that the President gets to rewrite treaties because he disagrees with them. Nowhere does it say that the President can change one word of any statute. Nowhere does it say that the President can change one word of any part of the Constitution itself. Nowhere does the power that exist to make such changes in secret.
It isnt subject to debate. It is a matter of factual history.
Agreed.
Haven’t seen anybody attempting to rewite the ten commandments-yet.
They just ignore them,kinda like they do the constitution.
Cafeteria commandments,cafeteria Constitution.
I happen to agree with you, but legal outcomes are so not predictable (in my opinion)…. too many extra inning games…
What you’re missing is that the Executive has the power to do stuff. They have an immense Federal Bureaucracy at home, and a huge contingent of personnel for the Departments of State and Defense overseas. What Cheney & Rove knew is that in the gray areas, and behind the doors of covert action, they could do quite a lot that goes beyond the nice little lines in the sand that you have drawn. Thus, the reason for the Suskind quote from early in the first term of George Junior, bragging about the new order of things in Washington:
Karma is a bitch, but she can take a while to act. Meanwhile, the Neocons were racing around, creating so many new facts on the ground that it will take a generation of determined scrubbers to cleanse the system of their depredations. Rachel Maddow needs to bring back her “Rinse, scrub and repeat” segment.
But therein lies the other prong of Bush & Cheney’s power grab: they didn’t just break one or two laws; they probably broke dozens of them, some of them repeatedly. They probably committed hundreds of felonies, in all, if serious and unrestricted investigations were allowed to review the evidence with subpoena power, and prosecute the offenders.
Meanwhile, some of those “new realities” will become old realities, and we will be a different people than we were. That is how insidious and perfidious they were.
Bob in HI
We must ask ourselves a question. Do we want clean hands and the mushroom cloud in our backyard or do we want slightly soiled hands?
slightly?
Your “dirty hands” are the quickest route to generating more enemies who want to attack us.
Time to change your Depends. You’re starting to smell pretty rank.
And here I thought the question we had to ask was, “Do we sacrifice the virgin or have the volcano erupt and kill us all?”
Best. retort. ever.
Thanks for that ; )
It’s a much cleaner process here, Mary. We just call Freep who sacrifices the trolls. No muss, no fuss, no clean-up for us.
When did anyone, ever, have “clean hands”, dear torgo2009? How could anyone even imagine such a thing? Completely out of the question. Obviously out of the question! The trick is to use our soiled hands well. You can do excellent things with soiled hands; if there’s anyone around whom you truly respect, take a look at his or her soiled hands, and see how well he or she uses them.
Lawyers, for example. I’m not a lawyer, that’s for sure, but I’ve come to know a few. Just like the rest of us, they all have soiled hands–not because they are lawyers, but because they are human, and hands are what they happen to have. A few of them also do wonderful things–specializing in the remarkable arts of keeping justice in the air. Really, it’s a juggling act, no less than the act of juggling itself. Five balls in the air, and none of them hit the ground! They couldn’t do that without their solled hands, torgo2009: no, they’d have to do it with their soiled feet, and would undoubtedly do so if they had no choice, but I think we can all agree that the juggling works out best with those hands you’re talking about.
Does the axe man (executioner) who has the King’s blessing have clean hands? I think what we want is the Rule of Law instead of a dictatorship or some other kind of Executive who/which was not selected by a broad swath of the country’s people.
OT
SF Chronicle Editorial: Still Wrong On Wiretapping
http://www.sfgate.com/cgi-bin/…..18QTA3.DTL
One of former President George W. Bush’s most disastrous legacies – his warrantless wiretaps – has picked up a curious ally in President Obama. What the new White House wants is pretty much what the old team had: secrecy cloaking an end run around civil liberties.
Raise the bar?
How about lowering the threshold?
Bitter Anniversary for Victim Of USA Extraordinary Rendition & Torture
http://www.thestar.com/comment/article/668160
I was the subject of an “extraordinary rendition” from Canada to the United States, where I was held for nearly five years and tortured as a terror suspect, even though I was innocent.
You were held and tortured for five years?
That story is about Benamar Benatta.
A prosecutor originally involved in his illegal detention and abuse has a kinda familiar name – Battle.
After being involved in the Benatta debacle, disappearing an innocent man into abuse for years, Battle was promoted to head the EOUSA. When Battle had to move on after the USA firings he was replaced by Melson, who had been supervising the investigations into torture, murder and torture murder – an investigation that included all of one mention of the torture videotape to his lead and a mention that the lead doesn’t even supposedly remember.
Anyway, once a Federal Magistrate, Schroeder, looked at what Battle wrought way back in 2003:
Oh, and while Fine was supposedly investigating post 9/11 abuses by DOJ back in 2003, he never managed to talk to Benatta. Despite this:
By Nov 2001 he was cleared, but then DOJ began to collude on how to justify what they had done to him and they began to trump up charges in tandem with INS.
But despite all this in 2003, Benatta was basically re-disappeared into immigrations proceedings until well after Bush’s re-election (can’t have that Canadian guy on the airwaves in 2004 can we, esp not with Abu Ghraib etc.) and it was almost three year AFTER that WaPo report and the magistrate report that he was released to Canada.
Battle has landed at Fulbright & Jaworski:
http://www.fulbright.com/mbattle
They mention his involvement in the Lackawanna Six pretty prominently – not so much the USA firings and Benatta.
That’s a lot more than I’ve ever known, so thanks very much to you both, Mary and WTF Over.
From our end, this is another one of those “the Mounties drove him to the border and handed him over to the FBI” stories. In theory, the Mounties have stopped doing that.
Sheesh. How many of these cases do they have to throw at us? Who isn’t a lot more than “slightly soiled” by now? (Many swear words deleted.)
My 54 was supposed to be a reply to Neil’s 50 – I guess I clicked without making sure it showed the pink reply thingie.
Lamberth’s ruling is showing up the tactic of using covert status to avoid criminal investigations. That’s what they did with the woman who ordered up the disappearance of el-Masri and his continued disappearance in abuse even after determining he was not “that” al-Masri.
Waiting for Obama’s DOJ to argue that Lamberth can’t sanction any of them, bc otherwise they won’t cooperate in future DOJ efforts to defraud the Courts and Congress.
Thanks Mary. Spencer is now at Lockheed. Also. Left Justice after over a decade of service, after this prosecution.
It’s kind of chilling when you think about who did what and landed where.
Of those tied into torture issues you have
Pepsico putting Thompson in as GC despite his shipment of Maher Arar to Syrian torture;
Boeing hiring Luttig after he presided over keeping Padilla in US “breach of Geneva conventions” and unconstitutional abuse for literally years;
Lockheed with a whole herd now – Spencer and Melson who “investigated” (despite the memory issue on little things like torture videos) CIA torture and torture killings (giving it all absolution) while Spencer contemporaneously worked on preventing exculpatory and/or relevant info re: tortured informants from getting to defense counsel and the courts and Comey was agreeing with at least one of the Bradbury opinions and also not anteing up any info to the courts on torture evidence (and was holding the Padilla presser to take his shot at the Sup Ct as well);
Yoo to Boalt Hall;
Goldsmith to Harvard;
Ashcroft to crony contracts and lobbying (after unfortunately having to cancel his pizza party for DOJ, where I guess they were going to see if Pepsico could come up with a Torture Lovers pizza specially for DOJ);
Battle who keeps Benatta in abuse and detention for years while trying to cook up grounds after knowing he was innocent and should be released now fiddle faddling at Fulbright & Jaworski;
McNulty who was ultimately running the ED VA show before he sat in in the atty firing fiasco too partnering up at Baker McKenzie;
Bybee with a Circuit Judge lifetime appointment;
Paul Clement after certifying to the Sup Ct that *we* [loyal Bushies] do do *things like* torture (despite the permanently disappeared children and the frozen body dumped in Afghanistan and …) despite the ongoing IG investigations and known torture deaths and almost deaths and concealed evidence etc. now kicking back at King Spalding;
Scot Muller sitting the nest of torture eggs through hatching, now at Davis Polk;
Michael Chertoff, after giving Chiquita advice on their little terrorist problem and sitting silent on charges while he headed the crim div (and ultimately heading up whatever the hell Melson and Spencer were not doing) now at Covington Burling;
Mukasey who came in to insure nothing happened on any of this, now at Debevoise & Plimpton;
and the lists go on, but always with anyone tied into to torture getting a nice, soft landing somewhere. While the Obama admin leave whistleblowers twisting in the wind and teaches them the ultimate lesson “change” and “hope.”
Okay, ObamaCo needs to see this list … will you send it Mary or should I ?
May I include George Tenet receiving the Medal of Freedom upon his retirement?
and what precisely would we find on THAT kind of pizza? Little bits of this and that…
Spencer Ackerman strikes again:
Feingold Calls Out Blair on CIA ‘Significant Actions’.
Hooray for Russ!
Bob in HI
It gets pretty hard to pick out those few bad apples when the barrel is falling apart around your ankles and splashing aromatic goop all over the DoJ’s clean marble floor.
Actually, our recent Presidents seem to have forgotten that they actually took an oath of office: “I, name, do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and I will to the best of my ability, preserve, protect, and defend the Constitution of the United States.”
You see that business about the Constitution? That’s really the ONLY thing that a President is required to do and Bush ripped the Constitution into confetti whilst presently Obama is defending that action and preserving it.
This is an expanded piece on the Lamberth ruling by Pickler
http://news.yahoo.com/s/ap/200….._cia_fraud
It goes into Lamberth saying the dept has diminished credibility; he goes after Panetta for claiming the wiretapping was a state secret even though the device is described by Horn in the filings and is on display in the spy museum; and there’s a reference to Rizzo selling out Yeates, saying Yeates knew, but no one else did, with the CIA guy, Brown, then saying nuh uh, I told you other guys too.
Then there’s the sad backstory on it all – the DEA guy was in contact with locals who were trying to get the drug trade stopped or diminished. The gov and intel in Burma were working with the drug lords. When the locals would go to the DEA guy with proposals on ways to help wean their area off the drug trade, “someone” would turn over the info on the locals contact with Horn to the Burmese intel – who would pick up and torture the anti-drug locals.
Lovely.
It’s just the laws themselves and common decency that they don’t give a damn about.
Thanks for the backstory Mary. More despicable conduct in our name. Any minute now I expect someone to tell us that arranging for the torture of Burmese people trying to root out drug lords has made us all safer…
It’ll have to be you, Petro. They dont’ even send me emails like they do essef.
But the Clement thing, now that I look at my typing, was supposed to be “don’t do.” I guess the do do was Freudian in multiple ways.
Compare and contrast with what happened to Tamm, or Mary McCarthy. It’s just Fredo who hasn’t done well out of his torture background.
BTW – one of the Oxdown diaries has a link up to a youtube clip from the OZ show, The Chasers – they send someone to sit in on Yoo’s lecture.
When I was 7, I thought that if my teeth touched the flat circle of bread in my mouth at Roman Catholic communion, I’d physically hurt Jesus Christ.
When I was 33 in 1987, I flew to Moscow and Kiev with friends and saw beautiful couples walking their new babies around a park and sharing ice cream cones. I said to myself, “THESE are the people we want to obliterate with nuclear weapons? THESE people belong to the (Reagan-termed) ‘Evil Empire.’?”
When I was 49 and was recovering from a month-long medically induced coma, I thought I could see Jesus inbetween my hospital room and my neighbor’s—in a sort-of different universe only visible at that time to me.
When my mother died of myelofibrosis no doctor or nurse told her she had only one month to live. When the doctors stopped coming to see her as often, she buttonholed one and asked “Am I dying?” He said, “Get your affairs in order.” She said, “Thank you!” She preferred the stark truth to a cover-up.
My father died two years later of a massive stroke, paralyzing him so he could only move his left arm and curl up the left side of his mouth. He couldn’t speak. No one told him that the tubes plunged into his skin contained only saline and sugar solutions—that he would starve to death in less than 10 days. One of his children had to tell him. His eyes blurred with tears, but he relaxed with the truth. I’m sure he began to pray more then.
Lately, President Barack Obama has refused to release photos of torture afflicted on non-Americans in worthless attempts to gain terrorism information or because of just-plain sadism. Todd wants to not prosecute the brutes who re-introduced torture to the world and to the U.S. Torture that most thought had ended with the Salem witch trials.
The Nazis knew how to lie to people. The sign above Auschwitz’s gate was “Arbeit Macht Frei” (Work Sets You Free). Prisoners marching underneath that sign into the camp STILL believed that it was just a “work camp” even as they walked past a bonfire into which Nazis were throwing screaming, flailing babies and toddlers.
The truth is tough, but leads to breakthroughs. But evolution has given us incredible defense mechanisms, such as denial and delusions and hallucinations. We differ from the mammals just below us on the evolutionary ladder mostly because our brains allow us to “read other humans’ minds.” To read intent. Our brains–even though we are not in the fire, remember matches we’ve touched or stoves we’ve gotten too close to–and re-enact that pain with representations that send weak signals to our muscles, so that we actually flinch when we see someone else getting burned, even though it may just be in a movie.
Still, though, there is NOT enough empathy. It’s so hard to empathize with others or see their point of view, even though we CAN read intent or “read minds.” Just ask any husband or wife, no matter how long they’ve been married.
It seems that 99 percent of people lack enough empathy. Ninety-nine percent of conflicts, such as the Israelis’ imprisonment and starvation of citizens confined to the Gaza Strip this summer or the deluded terrorist pilots of the airliners on 9/11 had no realization that babies and the ill were laying for days slowly starving or bleeding to death or that nearly 3,000 unsuspecting people would be burned alive, crushed, or forced to jump 100 stories to their deaths.
When I was 17, a 15-year-old fellow high school mate of mine was paralyzed from the neck down for life while making a tackle in a football game. At that time, I “sure felt bad” for him and his family. But try as I might, I couldn’t imagine the horror he must have felt when full realization of his dilemma kicked in.
It took that month-long medically induced coma when I was 49 for me to understand that high school mate’s experience. My muscles had atrophied and I could neither move nor speak for nearly six weeks. Only then could I empathize with that 15-year-old football player.
Our lack of skill with our empathy, I suppose, is an evolutionary trait that helps people survive the horrors of this world—and to commit some of the horrors of this world.
Empathy—humanity’s greatest aid in taking over the planet from other animals remains in its infancy. Only a rare person has too much empathy, such as Alexander Hamilton’s daughter who went insane when she learned her brother had been killed in a duel (still popular only 200 years ago).
If we could place ourselves in the other persons’ shoes, disputes would be settled more quickly, in the Middle East, between sex partners, or about nuclear arsenals.
Perhaps Big Pharma should take its gigantic profits and do more R&D on a drug to induce empathy, to speed its evolution. Surely, hiding the truth that someone is dying is immoral. Hiding our recent dirty, torturous deeds as a nation also is immoral. Not prosecuting the brutes who brought back torture is immoral. The truth hurts, but would lead to breakthroughs in the evolution of our arrogant species. http://crush.typepad.com (emasculation-blues)
http://apocalypse-blues.typepad.com/
What an amazing post!
Yes,until you’ve walked in another’s shoes,or at least tried them on,they don’t pinch,do they?
There is a website called Empire Burlesque,and it contains some of the best writing on the net.
MUCH of what you ponder in your post is addressed over at Chris Floyd’s Empire Burlesque website.
I agree with Gitcheegumee!
I’ve not seen your handle here before, but I hope we all will see far more of it in the future.
drational@21,
I do not take bmaz ad hominen attacks seriously – but I do take his advice to heart -regarding posting here – paraphrasing the b maz meister ,,’”protective eyewear required ” or something to that effect as is bmaz ’s hallmark “snarkey-tude.”
I also take seriously that there is a whole lot more going on besides Durham being a buddy of O’Connor –
I do earnestly belive that in the end justice will be done -and those down the chain at OSD for former SecDef Rumsfeld have already started that mojo moving forward .Senator Whitehouse is ACTIVELY investigating this former OSD criminal wrongdoing.
From the early days of CIA torturing to Camp Nama to what appears to be still ongoing abuse at Bagram this is all part and parcel of cheneyBush ’s walk on the darkside…
Alabama is also correct in his assertion that there is a mounting tide of evidence that will make it impossible for Holder not to move forward with prosecution -But then again my belief is that Team Obama has always wanted to move against gwb 43 ’s lawlessness – ( and this has nothing to do with eleven dimensional chess..)
I have engaged in no ad hominem attacks of you. I have consistently challenged you to put up any factual and/or tangible basis for the pie in the sky claims you make. But you never do. You seem to believe that Eric Holder is a man that time and time again over a decade and a half of history he has proven himself not to be. You say Whitehouse has some big gig going against Rumsfeld – where is your evidence of that? Is it some secret star chamber we cannot know about but you do? Tell us. Don’t stand in the corner and tease the rest of us like you are some sage all knowing soothsayer lording your special knowledge over us, explain yourself. But you refuse. There has been a tsunami of information and evidence for years, but now you feel there is a “rising tide”. Well I do not think your statements even hold water without the support and facts you either refuse to or cannot produce. That is not an ad hominem attack, that is a request for a rational and factual basis. Got any?
bmaz@122
where is your evidence that Holder is the stooge you say he is =
where is your evidence that Durham’s investigation is a whitewash smoke screen
I guess maybe I am sort of like some paid MSM semi informed minions -down here in Central Texas I speak to at least two former gwb43 ‘ers that wish not to be publically identified -and then I try to assimilate whats being said here and elsewhere-and then give my opinion ,,
and again time will tell who has made the best guess with his or her opinions…
ps senator whitehouse’s subcommitte is looking at the former osd – go google it if you want too…
I have been writing, along with LHP at FDL and others, about Holder for at least a year now. Google yourself. Secondly, the limited nature of the scope of Durham’s investigation as laid out by Mukasey, the fact that an in the tank malefactor like Mukasey would pick him in the first place, the fact that at one point Big Bull Durham announced he was wrapping his investigation with findings of no criminal behavior (it is impossible that there was no criminal behavior, only a question of whether you can charge it) all coupled with the fact that I do not trust a guy so close to the guy Alberto Gonzales hand selected as his right hand man. Lastly, none of this internal shit from the DOJ, which is hopelessly conflicted, has ever amounted to a hill of beans. But, hey, my thoughts and positions have been laid out here and elsewhere for years, you are free to go check it out if you want more detail than I have provided here. Where is your support?
The crazy thing is that I’m not always sure the people discussed in this article– and the general public, for that matter– even understand IHL and the Geneva Conventions.
Maybe if we taught youth about IHL in schools there wouldn’t be so much confusion about what it all means. There’s a petition out now– Protect the Vulnerable in War: Teach the Geneva Conventions– found at http://bit.ly/RCpetition
After all, can you really expect people to know what they are/aren’t allowed to do in war when they don’t understand the rules? Sign Today.