Posts

“New” State Secrets Policy “Smoke and Mirrors”

/39 Comments/in /by

That’s what a spokesperson for the Center for Constitutional Rights had to say about Eric Holder’s new State Secrets policy: that it’s just "smoke and mirrors."

The ACLU is similarly unimpressed. Ben Wizner, of the ACLU’s National Security Project, says,

On paper, this is a step forward. In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration and to demand that federal courts throw out lawsuits filed by victims of torture and illegal surveillance. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities ‘state secrets,’ and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of ‘national security. 

Congressman Nadler welcomes some of the changes but promises to continue pushing a State Secrets bill through Congress.

These new requirements, particularly the requirement for the Attorney General to approve any state secrets claim only after reviewing information and determining whether the disclosure of such information would cause significant harm to national security, are significant steps toward improving the use of the state secrets privilege. I also applaud the Attorney General’s positive declaration that the state secrets privilege cannot be used to conceal unlawful conduct by the federal government or to prevent the exposure of embarrassing details. Another important change is the mandatory referral to the Inspector General of any case in which assertion of the state secrets privilege raises credible concerns.

These are all critical steps toward transparency and increased due process, and I believe that the Obama Administration has undertaken them in good faith, with both national security and justice in mind. Nevertheless, these reforms fall short of what is necessary. There is still no prohibition against dismissing entire cases from the outset, before the courts and parties have an opportunity to determine whether the information at issue is subject to the privilege and, if so, whether a case can proceed regardless.

We must not understate the extent to which the abuse of the state secrets privilege poses a major threat to our system of justice. Read more →

More on Holder’s “New” State Secrets Policy

/24 Comments/in /by

Here is the Holder memo announcing a "change" in the state secrets process. As bmaz has said, the change is procedural only–it still retains all the ability to invoke state secrets with the executive with little recourse to those whose suits have been hindered by the invocation of state secrets.

But I did want to point out a few details. First, this policy goes into effect on October 1. While it’s unlikely, the one week in question does give Article III Courts a week to act to change the underlying reality with regards to state secrets.

Second, note that the policy replaces real courts with IG investigation (this is from the DOJ press release):

Referral to Inspectors General. The policy implements a referral process to relevant Offices of Inspector General whenever there are credible allegations of government wrongdoing in a case, but the assertion of state secrets privilege might preclude the case from moving forward.

That is, if you want to sue the government for rendering you to be tortured, for wiretapping you illegally, or for bugging your DEA office in Burma, if your case gets dismissed for state secrets, you’ll have the satisfaction of knowing that an Inspector General will investigate your allegations.

Big whoop. In at least Horn and al-Haramain (and arguably, Jeppesen) that investigation has already been done. In fact, in Horn, one of the things the government is asserting state secrets on are IG Reports!!

And that’s what the Obama Administration intends to replace Article III review with!

Finally, there’s this:

6. Classification Authority

The department or agency with classification authority over information potentially subject to an invocation of the privilege at all times retains its classification authority under Executive Order 12958, as amended, for any successor order.

I hope the lawyers correct me if I’m wrong, but this is designed to be a blow against Article III efforts to order the government to give lawyers litigating these issues the need to know, and thereby access to classified information under dispute.

Mind you, if I were an Article III judge I would be unimpressed by this "new" policy, so it may not do Holder any good.

Wilkerson on Durham’s Investigation

/48 Comments/in , /by

A number of you have pointed to Andy Worthington’s detailed interview with Lawrence Wilkerson. You should read the whole thing, if only to see Wilkerson tee up on Crazy Cheney.

But the part I found most interesting is this bit:

Lawrence Wilkerson: No. My wife thinks that ultimately there’s going to be something. I’m a little more cynical than she, but she’s convinced that this investigation that’s been going on [by John Durham] — very low-key, the guy’s very persistent, he’s very determined, he reminds me of [Patrick] Fitzgerald on the Valerie Plame case, and his starting point is the destruction of the videotapes, and I’m told he’s got a plan, and he’s following that plan, and I’m told that plan is bigger than I think. [my emphasis]

While I was on the record as saying Durham’s appointment probably meant the torture investigation would never go after John Yoo or John Rizzo or Addington (because it would be harder for an AUSA to go after so senior an official), I also said there’s one scenario in which Durham’s appointment could be a good sign. That’s if the evidence Durham had discovered in the torture tape investigation was part of the new information that merited reopening investigations into torture itself that–even credible people seem to think–has already been investigated.

Now, there are a few more breadcrumbs that suggest the lawyers may be as much a focus of this as the torturers. When Eric Holder announced the investigation, for example, he described the two inquiries as related and Durham’s mandate as expanded.

Assistant United States Attorney John Durham was appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. During the course of that investigation, Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand. Accordingly, I have decided to expand his mandate to encompass this related review.

Then there’s the detail that Holder decided he had to do an investigation after reading not just the torture memos and the IG Report, but also the  OPR Report.

But, then, Holder decided to take a close, personal look at the issues, and his perspective began to change. Read more →

Your Daily WaPo Torture Apology Debunking

/90 Comments/in , /by

I will say this for today’s daily installment of the WaPo torture apology. The WaPo’s two spook reporters, Walter Pincus and Joby Warrick, at least note–in paragraph 10–that having Buzzy Krongard speak for everyone at CIA might not be logically valid.

It is impossible to extrapolate from the small sample contacted by Washington Post reporters about the effect the varied inquiries are having on the thousands of agency employees, more than one-third of whom are spread around the world. But among the dozens of officials who were part of the program and either remain active or have retired, feelings run high about how the White House and the Justice Department have handled the issue. 

But they never get around to challenging Buzzy and their other sources themselves. They never point out that a lot of the whining their sources do is either transparently bogus or just plain whining. And they present numerous sources from the CIA itself debunking the cries of low morale from the torture apologists, yet still let the torture apologists dictate Pincus and Warrick’s conclusion that the torture investigation has and will devastate CIA morale.

Take the claimed worries about whether the legal advice from one Administration carries over to another one.

A much-discussed question is whether the legal reassurances of one administration carry over to its successor. "When a previous administration says something was legal, and the next says it doesn’t matter, the result is hesitancy to take on cutting-edge missions," the former senior official warned. 

I can’t count the number of times that Obama Administration officials have stated that no one who followed John Yoo’s transparently bad legal advice will be prosecuted, but here’s how Eric Holder reiterated that point in his announcement of the investigation.

Further, [the men and women in our intelligence community] need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.

Yet Pincus and Warrick simply print that complaint, without pointing out the entire premise of it is wrong.

Read more →

Holder Announces the Investigation

/29 Comments/in /by

And notes some will be unhappy that he has initiated the review. But doesn’t consider those of us who smell a whitewash.

I have reviewed the OPR report in depth. Moreover, I have closely examined the full, still-classified version of the 2004 CIA Inspector General’s report, as well as other relevant information available to the Department. As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter. I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.

Assistant United States Attorney John Durham was appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. During the course of that investigation, Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand. Accordingly, I have decided to expand his mandate to encompass this related review. Mr. Durham, who is a career prosecutor with the Department of Justice and who has assembled a strong investigative team of experienced professionals, will recommend to me whether there is sufficient predication for a full investigation into whether the law was violated in connection with the interrogation of certain detainees.

There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nation’s intelligence community. I could not disagree more with that view. The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not Read more →

Durham to be Torture Special Prosecutor

/87 Comments/in /by

And thus the whitewash starts.

Holder is poised to name John Durham, a career Justice Department prosecutor from Connecticut, to lead the inquiry, according to the sources, who spoke on condition of anonymity because the process is not complete.

Durham’s mandate, the sources added, will be relatively narrow: to look at whether there is enough evidence to launch a full-scale criminal investigation of current and former CIA personnel who may have broken the law in their dealings with detainees. Many of the harshest CIA interrogation techniques have not been employed against terrorism suspects for four years or more.

As I said in my panel at Netroots Nation, we’ll know a lot about whether Holder intends to do a real investigation, or just a whitewash investigating the Lynndie Englands, by the stature of the prosecutor he names. And while Durham is already neck deep in the investigation of torture on the torture tapes, he doesn’t necessarily have the stature to go after–say–Jim Haynes and John Rizzo for setting up the torture regime.

I guess Holder wasn’t that serious about investigating torture after all. 

Is DOJ Withholding the OPR Report Tomorrow to Frame a White-Wash Investigation?

/70 Comments/in /by

MadDog pointed to this passage in NYT’s story on the new revelations from the CIA IG report.

Besides the inspector general’s report, other documents expected to be released Monday are a 2007 Justice Department memo reauthorizing the C.I.A.’s “enhanced” interrogation techniques, documents that former Vice President Dick Cheney has said provide evidence that the interrogation methods produced valuable information about Al Qaeda; and Justice Department memos from 2006 concerning conditions of confinement in C.I.A. jails.

Best as I can tell, these are:

2007 Justice Department memo: The OLC memo Spencer was the first to report. From his Windy report:

As a result, according to the former senior intelligence official, after Bush issued the order, the CIA again asked the Justice Department’s Office of Legal Counsel to review the techniques listed in the revised interrogation program in order to determine their legality, just as the Office of Legal Counsel had done in 2002 and 2005, after previous periods of challenge to the post-9/11 interrogation program.

2006 Justice Department memos: The SSCI Narrative describes these to be interpretations of the DTA and the Hamdan decision.

In June 2006, in Hamdan v. Rumsfeld, the Supreme Court held that Common Article 3 of the Geneva Convention applied to the conflict with Al-Qa’ida, contrary to the position previously adopted by the President. Common Article 3 of the Geneva Conventions requires that detainees “shall in all circumstances be treated humanely,” and prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment” and “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” At the time of the Hamdan decision, the War Crimes Act defined the term “war crime” to include “a violation of Common Article 3.”

In August 2006, OLC issued two documents considering the legality of the conditions of confinement in CIA facilities. One of the documents was an opinion interpreting the Detainee Treatment Act; the other document was a letter interpreting Common Article 3 of the Geneva Conventions, as enforced by the War Crimes Act. These documents included consideration of U.S. constitutional law and the legal decisions of international tribunals and other countries.

Cheney’s documents: Reporting elsewhere suggests this will include more than just the two documents Cheney requested, but a few others. Read more →

Rahm and the Torture Investigation

/121 Comments/in /by

Thanks to Bruce Fealk for taping my torture panel from Saturday (and to RevDeb for making sure I got the links). Above is my bit. Here are:

Introductions and Congressman Nadler

Center for Constitutional Rights Executive Director Vince Warren (who I thought was the most interesting of all of us)

ACLU Attorney Melissa Goodman

DFH blogger "emptywheel"

Questions & Answers

I wanted to talk briefly about a point I made in my comments.

Rahm Emanuel has stood between us and accountability on torture. And if today or tomorrow or soon, DOJ announces a whitewash, Rahm owns that too.

Back when Obama picked Rahm, I grudgingly accepted it. If, as seemed to be the plan, Obama picked Rahm because of his perceived ability to get things done legislatively, it at least signaled an intent to avoid the legislative problems Clinton had. Turns out, though (and I guess this was predictable), Rahm brought a legislative strategy that might be appropriate for 2004, but is a disaster given the majorities we have in 2009. And then Rahm failed to even effectively implement that outdated legislative strategy (someone at the surreal midget bar experience–someone who has a lot of respect for Rahm–called it "political malpractice").

And in exchange for this political malpractice, a tight, professional campaign turned literally overnight into a leaky sieve. 

Within short order after his selection, Rahm was working hard to jerry-rig his replacement to make it easy for him to swoop back into the House in two years to take away Pelosi’s gavel. As a result, Greg Craig was forced to jump through some ill-advised hoops to distract the press from Rahm’s conversations with Rod Blagojevich; you can be sure Rahm’s conversations with Blago will continue to be a liability as that case gets closer to trial.

But, we were promised, Rahm would get us health care. What that really meant though is that we had to clear the political landscape to give Rahm his opportunity to get us health care. And instead of doing the legislative work to get that done, Rahm and the loathsome Jim Messina have been trying to cut deals with big health care corporations to turn this into a welfare program for them. As even that effort is beginning to go south, Rahm has (predictably) already switched into scapegoat mode, trying to blame his utter failure on health care on someone else. 

Against that background, consider again the parallel scapegoating directed at Greg Craig and Eric Holder for their efforts to come clean on torture. Read more →

With Justice Sotomayor Sworn In, Back to Torture

/in /by

I was putting together notes for my Netroots Nation panel next Saturday on torture accountability and realized it has been over three weeks since reports said Eric Holder would appoint a prosecutor in the next two. But according to the LAT, Holder still intends to appoint a prosecutor–and still intends to sharply circumscribe the investigation.

U.S. Atty. Gen. Eric H. Holder Jr. is poised to appoint a criminal prosecutor to investigate alleged CIA abuses committed during the interrogation of terrorism suspects, current and former U.S. government officials said.

A senior Justice Department official said that Holder envisioned an inquiry that would be "narrow" in scope, focusing on "whether people went beyond the techniques that were authorized" in Bush administration memos that liberally interpreted anti-torture laws.

The story reports that some of the potential subjects of investigation are still at CIA–though had been on the verge of retirement.

Bracing for the worst, a small number of CIA officials have put off plans to retire or leave the agency so that they can maintain their access to classified files and be in better position to defend against a Justice investigation.

"Once you’re out, it gets a lot harder," said a retired CIA official who said he had spoken recently with former colleagues.

And it suggests that the contractors will also be investigated.

The inquiry would also likely target private contractors who worked for the CIA during the interrogations.

But perhaps the most interesting revelation is that some of the torturers did not know what was in the John Yoo memo.

Beyond that, officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

"A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

That’s interesting, first of all, because of the evidence that one of the documents used to develop the Bybee memo–and not the Bybee memo itself–described waterboarding as practiced. Is it possible that that was the only document the torturers read? Is it possible that Yoo wrote the Bybee memo knowingthat the more expansive limits would be followed?

In any case, if it’s true that the torturers didn’t know the limits in the Bybee memo (or at least, that DOJ can’t prove they knew those limits), then it all becomes a management issue again. Read more →

“Protecting” President Cheney, Too

/in /by

In today’s second installment on ways American taxpayers are wasting money to protect Dick Cheney from embarrassment, Josh Gerstein has a report on today’s hearing on CREW’s FOIA of Cheney’s interview in the CIA Leak Case. And DOJ is unabashedly making the argument that it should not release Dick Cheney’s interview because it might embarrrass him. (h/t MadDog)

Smith said the Justice Department’s view was that a delay of five to ten years was appropriate, marked from the time the official or his or her administration left office. “It’s a judgment call,” Smith acknowledged.

Smith suggested that such a delay would make it more likely that the information was used for historical purposes and not for political embarrassment. “The distinction is between releasing it for historical view and releasing it into the political fray,” Smith said.

Funny, DOJ claimed it was arguing for the longer-than-statutes-of-limitation delay because of concerns that future Vice Presidents wouldn’t cooperate willingly with investigations. As time goes on an their arguments look shittier and shittier, I guess, they become more and more truthful. Thus their invention of a new FOIA embarrassment exemption.

It sounds like Emmet Sullivan is not buying that argument–though he is also unwilling to just order the release of the interview without giving Obama’s DOJ an opportunity to waste more money protecting Cheney from embarrassment.

As the hearing concluded, Sullivan said he thought Congress had drawn a “bright line” with language in the Freedom of Information Act that generally exempts information about pending investigations from disclosure, but not closed probes, like the CIA leak case. He also said he would stay any ruling so the government could appeal before he released any documents.

President Obama? Attorney General Holder? This nonsense has gone on long enough. As I noted, Cheney’s participation in this probe is proof enough that the investigative concerns are bunk. It really is high time to stop wasting money preventing taxpayers from learning what Cheney did in our name.