Archive for category: emptywheel

Anyone who has been following over the last eight years will not be surprised that Lord Goldsmith told Tony Blair that the Iraq War was illegal.

On July 29, [2002, Lord Goldsmith] wrote to Mr Blair on a single side of A4 headed notepaper from his office.Friends say it was no easy thing for him to do. He was a close friend of Mr Blair, who gave him his peerage and Cabinet post. The typed letter was addressed by hand, ‘Dear Tony’, and signed by hand, ‘Yours, Peter’.

In it, Lord Goldsmith set out in uncompromising terms why he believed war was illegal. He pointed out that:

• War could not be justified purely on the grounds of ‘regime change’.
• Although United Nations rules permitted ‘military intervention on the basis of self-defence’, they did not apply in this case because Britain was not under threat from Iraq.
• While the UN allowed ‘humanitarian intervention’ in certain instances, that too was not relevant to Iraq.
• It would be very hard to rely on earlier UN resolutions in the Nineties approving the use of force against Saddam.

Lord Goldsmith ended his letter by saying ‘the situation might change’ – although in legal terms, it never did.

I’m more interested, though, in the description of the scrum two Labour officials used to to convince Goldsmith to give the Iraq War some legal sanction.

He was summoned to a No10 meeting with Lord Chancellor Lord Falconer and Baroness Sally Morgan, Mr Blair’s senior Labour ‘fixer’ in Downing Street. No officials were present.

A source said: ‘Falconer and Morgan performed a pincer movement on Goldsmith. They more or less pinned him up against the wall and told him to do what Blair wanted.’

After the meeting, Lord Goldsmith issued his brief statement stating the war was lawful.

With this stuff coming out during the Iraq War inquiry, I honestly wonder whether we’ll eventually learn about the “dark actors playing games” who went after David Kelly.

One more tiny detail from the torture tape FOIA.

Document 27, dated July 28, 2005, and titled, “DNI News” is described as “a one-page email with a CIA attorney’s opinion, conveyed to his client, regarding the DNI’s position [sic] the destruction of the videotapes.”

We know a little bit about what the email might say from this Isikoff-Hosenball story from when the House Intelligence Committee was investigating the destruction.

In the summer of 2005, then CIA director Porter Goss met with then national intelligence director John Negroponte to discuss a highly sensitive matter: what to do about the existence of videotapes documenting the use of controversial interrogation methods, apparently includ­ing waterboarding, on two key Al Qaeda suspects. The tapes were eventually de­stroyed, and congressional investigators are now trying to piece together an extensive paper trail documenting how and why it happened.

One crucial document they’ll surely want to examine: a memo written after the meeting between Goss and Negroponte, which records that Negroponte strongly advised against destroying the tapes, according to two people close to the investigation, who asked for anonymity when discussing a sensitive matter. The memo is so far the only known documentation that a senior intel official warned that the tapes should not be destroyed. Spokespeople for the CIA and the intel czar’s office declined to comment, citing ongoing investigations.

The “news” referred to in the subject line of this email must be John Negroponte’s opposition to destroying the torture tapes.

Interestingly, even though the description says this included a CIA attorney’s recommendation, this is one of the few documents in this Vaughn Index for which CIA hasn’t claimed some kind of attorney product privilege (though they do claim a deliberative privilege). The reference to the attorney’s recommendation is even more interesting given that two CIA lawyers told Jose Rodriguez it was alright to destroy the torture tapes. Was one of these two lawyers the lawyer who knew of Negroponte’s opposition to destroying the torture tapes?

For some strange reason, I have the distinct pleasure of getting the Chris Matthews Show, the syndicated half hour one, before most folks, on Saturday afternoon at 5:00 pm local time. What a constant thrill. Today Matthews had on the sage panel of Joe Klein TIME; Norah O’Donnell MSNBC; Anne Kornblut The Washington Post; and David Ignatius The Washington Post.

It did not disappoint – they all predicted Sarah Palin was the force to be reckoned with for the 2012 Republican nomination and that Barack Obama was in trouble.

The village elders are village idiots.

Instead how about both the cognoscenti and citizens of the fine United States of America ponder an ethos more along the lines contemplated by our friend Mary:

To go back to one of the lesser points – the GITMO pics – one of the reasons that everyone knows they are not being released is that they demonstrate several direct lies formerly made by the Executive to the American people. Lies about the extent of abuse, lies about prosecutions of abusers, lies about a few rogue soldiers v. a planned regime of torture, etc. Not only lies, but suppression of evidence of crime leading to obstruction of justice as a) torturers were not brought to justice for their crimes against innocent civilian populations, and b) Abu Ghraib soldiers were scapegoated and railroaded in a sideshow event specifically calculated to use them as a shield against further investigation. So Obama furthers the obstruction, picture frames his “no one is above the law” campaign promise as being an outright lie, and then uses the Executive office to attack the judiciary. Not content, he permeates the whole of the Democratic majority with his torture support by strongarming (in a rare leadership moment) Democratic legislation to subvert justice. That’s not pragmatism, it’s how you lose support and votes.

The truth is that Americans do respond to the truth when battered with it as frequently as with the opposition talking points. He’s never once utilized his position to do that – to got there – to be truthful about what has happened on torture, what is happening with innocent men being held at GITMO, what the *mission* is in the ME, etc. Let me put it this way – if I can make Indiana red necks blink and flinch with just a few facts, Obama giving a Presidential address, early on, to admit that bc of poor policies, intermingled with some very evil and bad men at GITMO, there are some innocent victims who should never have been sent there — yes, there would have been right wing furor (as always – I think that also happens when he goes out to dinner for that matter) but there would have been a big conscious shifting moment for the country and a seismic change in how the Muslim world sees us.

Instead, he opted to be Bush Jr. Not only is that not pragmatic, it’s a slow kill poisen. All the people who never wanted him still don’t want him; those who thought he would be something are now thoroughly jaded to not just Obama the candidate, but the Democratic “like Bush, but comes in blue” party. Read more →

Just in case you haven’t been following Balkinization since Marty Lederman went to work at DOJ, I wanted to link to this Jon Hafetz* post, which hits on a lot of the points that powwow and Mary raised in this thread yesterday.

But at Guantánamo, the road to justice remains the road less traveled. Holder also announced that five other Guantánamo detainees would be referred back to military commissions, including Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 bombing of the USS Cole. So, those accused of the 9/11 attacks go to civilian court, while those accused of other crimes are diverted to military commissions. Yes, al-Nishiri is accused of attacking a military target. But the attack occurred before the United States was engaged in any armed conflict and before the passage of the Authorization for Use of Military Force that the U.S. has relied on for the claimed armed conflict against al Qaeda. (In Hamdan, Justice Stevens described such retroactive use of military commissions as “insupportable”). As Deborah Pearlstein points out , the administration has failed to provide a consistent, let alone valid, legal theory why one case goes to a military commission and another to federal court—why one prisoner gets full due process in a federal trial while another receives due process lite in a refurbished commission. Military commissions may have a place in the limited circumstances of true necessity—where the civilian courts are not open, functioning, and capable of dispensing justice. But military “necessity” is not an excuse for the government to deviate from its regularly constituted courts because it lacks the evidence to convict. And even if that were not the reason (or the only reason) for using military commissions, it will be the enduring perception of America’s two-tiered system of justice.

Holder’s announcement, moreover, deals only with one slice of Guantánamo. In the eight years since President Bush first created military commissions, only three men have been tried by these supposed “war courts.” By contrast, more than 750 have been detained without trial and more than 200 remain in legal limbo. Military commissions have helped mask a much larger system of prolonged and indefinite detention without charge. This open-ended detention system has been one of the most brutal, arbitrary, and lawless aspects of Guantánamo.

Click through for the rest, including where Hafetz argues that, “U.S. detention policy will remain essentially lawless.”

*Mary (!) will be hosting an FDL Book Salon with Hafetz and Mark Denbeaux for a discussion of their book, The Guantanamo Lawyers: Inside a Prison Outside the Law on December 19.