Nashiri Asks for the Targeting Package on the OTHER USS Cole Mastermind

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Things just got interesting in the pre-trial hearing for Abd al Rahim al-Nashiri in Gitmo. According to Charlie Savage and Carol Rosenberg, he has asked for the targeting package used to kill Abu Ali al-Harithi in Yemen in November 2002.

While I have no confidence he’ll get the package, he has very good reason to demand it. Here’s what I wrote about the al-Harithi killing two and half years ago.

I find it rather interesting that that 2002 assassination was rationalized in the name of killing al-Harithi, accused of organizing the USS Cole bombing. That strike happened not long after the US started torturing a guy–Rahim al-Nashiri–whom we’re about to try in military commission for organizing the USS Cole bombing. [10/24/12: Correction, we actually started torturing Nashiri in earnest 13 days later] (And remember, al-Nashiri had been in custody in Dubai for a month by the time the US took custody.) Who was the mastermind of the Cole bombing, then? al-Harithi, who doesn’t even merit a mention in the 9/11 Commission report (though reports from when he was killed said he was among the 12 most senior al Qaeda figures), or al-Nashiri, who does, and is about to be tried for it? Note, too, that the Bush Administration did not announce it had custody of al-Nashiri until several weeks laterin November.

Now compare al-Harithi, with his loosely accused role in the Cole, with Kamal Derwish, whom the US accused of recruiting a number of Lackawanna youth into al Qaeda. Not only was Derwish accused of being an ongoing threat–the standard purportedly used to put Americans on kill lists now. But he was accused of training Americans in al Qaeda. Which is not all that different than what the government is accusing al-Awlaki of now.

And note, too, that Priest and maybe Miller [ed. changed per MD’s comment] both now report that the CIA knew Derwish was in the car when they targeted (they say) al-Harithi. When Miller first reported this in 2002, he didn’t mention Derwish’s presence (nor did Pincus). When Priest broke the story of Derwish’s presence in the car, she stated it was unclear whether CIA knew he was there or not.

It was unclear whether the CIA operatives who fired the missile from hundreds of miles away knew that an American citizen was among their targets. It also was unclear whether that would have made any difference.

I guess I’m suggesting that, first of all, it would seem unnecessary to kill a guy for planning the Cole bombing if you knew you had the guy who–you say–planned the Cole bombing in custody. But that claiming a tie between him and the Cole bombing might provide the excuse to target a car carrying your real target, Derwish.

Basically, one of two things is likely true: al-Harithi is the mastermind of the Cole strike, and we knew that before we started torturing Nashiri, in the name of his role as the USS Cole mastermind, in earnest. Or, Nashiri is the real mastermind of the Cole bombing, in which case the al-Harithi story was probably a cover story so we could kill an American citizen, Kamal Derwish, with no due process.

I suspect the second is true (though Nashiri has also asked for the FBI investigative file on the attack; it’s rather stunning he hasn’t gotten it yet–maybe this is the reason he’s being inappropriately tried in a military commission?). In which case this is a kind of graymail, the knowledge that the US can’t turn over the targeting package for al-Harithi because it would show Derwish was the real target.

In any case, it was an interesting legal move.

The US Attorney for CIA Scrambles to Cover-Up CIA’s Torture, Again

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Bmaz just wrote a long post talking about the dilemma John Kiriakou faces as the government and his defense lawyers attempt to get him to accept a plea deal rather than go to trial for leaking the names of people–Thomas Donahue Fletcher and Deuce Martinez–associated with the torture program.

I’d like to look at four more aspects of this case:

  • The timing of this plea deal–reflecting a realization on the part of DOJ that their efforts to shield Fletcher would fail
  • CIA’s demand for a head
  • The improper cession of a special counsel investigation to the US Attorney for Eastern Virginia
  • The ongoing efforts to cover-up torture

The timing of the plea deal

Intelligence Identities Protection Act cases will always be risky to bring. By trying someone for leaking a CIA Agent’s identity, you call more attention to that identity. You risk exposing sources and methods in the course of proving the purportedly covert agent was really covert. And–as the case against Scooter Libby proved–IIPA often requires the testimony of spooks who lie to protect their own secrets.

There is a tremendous irony about this case in that John Kiriakou’s testimony in the Libby case would have gone a long way to prove that Libby knew Valerie Plame was covert when he started leaking her name, but now-Assistant Attorney General Lanny Breuer talked Patrick Fitzgerald out of having Kiriakou testify. Small world.

Bmaz notes that the docket suggests the rush to make a plea deal came after Leonie Brinkema ruled, on October 16, that the government didn’t need to prove Kiriakou intended to damage the country by leaking the names of a bunch of torturers. That ruling effectively made it difficult for Kiriakou to prove he was whistleblowing, by helping lawyers defending those who have been tortured figure out who the torturers were.

But the rush for a plea deal also comes after Matthew Cole and Julie Tate filed initial responses to Kiriakou’s subpoena on October 11. And after the government filed a sealed supplement to their CIPA motion that same day.

While both Cole and Tate argued that if they testified they’d have to reveal their confidential sources, Tate also had this to say in her declaration.

In 2008, my colleagues and I were investigating the CIA’s counterterrorism program now known as Rendition, Detention and Interrogation Program” (the “RDI Program”).

[snip]

I understand that defense counsel has subpoenaed me to testify about the methods I may have used to obtain the identity of CIA officers during 2008 while I was researching the RDI program.

Tate doesn’t say it explicitly, but it’s fairly clear she was able to get the identity of CIA officers involved in the torture program. Her use of the plural suggests she may have been able to get the identity of more than just Thomas Fletcher and Deuce Martinez. And she says she would have to reveal the research methods by which she was able to identify CIA officers who were supposedly covert.

Read more →

The Kiriakou Conundrum: To Plea Or Not To Plea

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There are many symbols emblematic of the battle between the American citizenry and the government of the United States in the war of transparency. One of those involves John Kiriakou. Say what you will about John Kiriakou’s entrance into the public conscience on the issue of torture, he made a splash and did what all too few had, or have since, been willing to do. John Kiriakou is the antithesis of the preening torture monger apologist in sullen “big boy pants”, Jose Rodriquez.

And, so, people like Kiriakou must be punished. Not by the national security bullies of the Bush/Cheney regime who were castigated and repudiated by an electorate who spoke. No, the hunting is, instead, by the projected agent of “change”, Barack Obama. You expect there to be some difference between a man as candidate and a man governing; the shock comes when the man and message is the diametric opposite of that which he sold. And, in the sling of such politics, lies the life and fate of John Kiriakou.

Why is the story of John Kiriakou raised on this fine Saturday? Because as Charlie Savage described, Kiriakou has tread the “Path From Terrorist Hunter to Defendant”. Today it is a path far removed from the constant political trolling of the Benghazi incident, and constant sturm and drang of the electoral polling horserace. It is a critical path of precedent in the history of American jurisprudence, and is playing out with nary a recognition or discussion. A tree is falling in the forrest and the sound is not being heard.

You may have read about the negative ruling on the critical issue of “intent to harm” made in the federal prosecution of Kiriakou in the Eastern District of Virginia (EDVA) last Tuesday. As Josh Gerstein described:

Prosecutors pursuing former CIA officer John Kiriakou for allegedly leaking the identities of two other CIA officers involved in interrogating terror suspects need not prove that Kiriakou intended to harm the United States or help a foreign nation, a federal judge ruled in an opinion made public Wednesday.

The ruling from U.S. District Court Judge Leonie Brinkema is a defeat for Kiriakou’s defense, which asked the judge to insist on the stronger level of proof — which most likely would have been very difficult for the government to muster.

In 2006, another federal judge in the same Northern Virginia courthouse, T.S. Ellis, imposed the higher requirement in a criminal case against two former lobbyists for the American Israel Public Affairs Committee.

However, Brinkema said that situation was not parallel to that of Kiriakou, since he is accused of relaying information he learned as a CIA officer and the AIPAC staffers were not in the government at the time they were alleged to have received and passed on classified information.

“Kiriakou was a government employee trained in the classification system who could appreciate the significance of the information he allegedly disclosed. Accordingly, there can be no question that Kiriakou was on clear notice of the illegality of his alleged communications.

Gerstein has summarized the hard news of the court ruling admirably, but there is a further story behind the sterile facts. By ruling the crucial issue of “intent” need not be proven by the accusing government, the court has literally removed a critical element of the charge and deemed it outside of the due process proof requirement, much less that of proof beyond a reasonable doubt.

What does that mean? In a criminal prosecution, it means everything. It IS the ballgame.

And so it is here in the case of United States v. John Kiriakou. I am going to go a little further than Gerstein really could in his report, because I have the luxury of speculation. As Josh mentioned:

On Tuesday, Brinkema abruptly postponed a major motions hearing in the case set for Wednesday and a hearing set for Thursday on journalists’ motions to quash subpoenas from the defense. She gave no reason for canceling the hearings.

HELLO! That little tidbit is the everything of the story. I flat out guarantee the import of that is the court put the brakes on the entire case as a resultnof an off the record joint request of the parties to facilitate immediate plea negotiation. As in they are doing it as you read this.

There is simply no other reason for the court to suspend already docketed process and procedure in a significant case, much less do so without a formal motion to extend, whether by one party or jointly. That just does not happen. Well, it does not happen unless both parties talked to the court and avowed a plea was underway and they just needed the time to negotiate the details.

So, what does this mean for John Kiriakou? Nothing good, at best. Upon information and belief, Kiriakou was offered a plea to one count of false statements and no jail/prison time by the original specially designated lead prosecutor, Pat Fitzgerald. But the “word on the street” now is that, because the government’s sheriff has changed and, apparently, because Kiriakou made an effort to defend himself, the ante has been ridiculously upped.

What I hear is the current offer is plead to IIPA and two plus years prison. This for a man who has already been broken, and whose family has been crucified (Kiriakou’s wife also worked for the Agency, but has been terminated and had her security clearance revoked). Blood out of turnips is now what the “most transparent administration in history” demands.

It is a malicious and unnecessary demand. The man, his family, and existence are destroyed already. What the government really wants is definable precedent on the IIPA because, well, there is not squat for such historically, and the “most transparent administration in history” wants yet another, larger, bludgeon with which to beat the baby harp seals of whistleblowing. And so they act.

To date, there have been no reported cases interpreting the Intelligence Identities Protection Act (IIPA), but it did result in one conviction in 1985 pursuant to a guilty plea. In that case, Sharon Scranage, a former CIA clerk, pleaded guilty for providing classified information regarding U.S. intelligence operations in Ghana, to a Ghanaian agent, with whom she was romantically involved. She was initially sentenced to five years in prison, but a federal judge subsequently reduced her sentence to two years. That. Is. It.

So, little wonder, “the most transparent administration in history” wants to establish a better beachhead in its fight against transparency and truth. John Kiriakou is the whipping post. And he is caught in the whipsaw….prosecuted by a maliciously relentless government, with unlimited federal resources, and reliant on private defense counsel he likely long ago could no longer afford.

It is a heinous position Kiriakou, and his attorneys Plato Cacheris et. al, are in. There are moral, and there are exigent financial, realities. On the government’s end, as embodied by the once, and now seemingly distant, Constitutional Scholar President, and his supposedly duly mindful and aware Attorney General, Eric Holder, the same moralities and fairness are also at issue. Those of us in the outside citizenry of the equation can only hope principles overcome dollars and political hubris.

Eric Holder, attorney general under President Barack Obama, has prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined, including law-and-order Republicans John Mitchell, Edwin Meese and John Ashcroft.
….
“There’s a problem with prosecutions that don’t distinguish between bad people — people who spy for other governments, people who sell secrets for money — and people who are accused of having conversations and discussions,” said Abbe Lowell, attorney for Stephen J. Kim, an intelligence analyst charged under the Act.

The once and previous criticisms of John Kiriakou, and others trying to expose a nation off its founding tracks, may be valid in an intellectual discussion on the fulcrum of classified information protection; but beyond malignant in a sanctioned governmental prosecution such as has been propounded against a civilian servant like John Kiriakou who sought, with specificity, to address wrongs within his direct knowledge. This is precisely where, thanks to the oppressive secrecy ethos of the Obama Administration, we are today.

Far, perhaps, from the “hope and change” the country prayed and voted for in repudiating (via Barack Obama) the festering abscess of the Bush/Cheney regime, we exist here in the reality of an exacerbated continuation of that which was sought to be excised in 2008. Kiriakou, the human, lies in the whipsaw balance. Does John Kiriakou plead out? Or does he hold out?

One thing is certain, John Kiriakou is a man, with a family in the lurch. His values are not necessarily those of those of us on the outside imprinting ourselves on him.

If the government would stop the harp seal beating of Mr. Kiriakou, and at least let the man stay with his family instead of needlessly consuming expensive prison space, that would be one thing. But the senseless hammer being posited by the out for blood successor to Patrick Fitzgerald – Neil MacBride, and his deputy William N. Hammerstrom, Jr. – is scurrilous.

Rest assured, far from the hue and cry on the nets and Twitters, this IS playing out on a very personal and human scale for John Kiriakou while we eat, drink and watch baseball and football this weekend.

Eric Holder Rewards the Teams that Gave Torturers and Mortgage Fraudsters Immunity

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As TPM’s Ryan Reilly noted yesterday, among the awards Attorney General Eric Holder gave out at yesterday’s Attorney General’s Award Ceremony was a Distinguished Service Award to John Durham’s investigative team that chose not to prosecute Jose Rodriguez or the torturers who killed their victims.

The 13th Distinguished Service Award is presented to team members for their involvement in two sensitive investigations ordered by two different Attorneys General. In January 2007, Attorney General Michael Mukasey asked Assistant U.S. Attorney John Durham to lead a team that would investigate the destruction of interrogation videotapes by the CIA. Assistant U.S. Attorney Durham assembled the team and began the investigation. Then, in August 2009, Attorney General Holder expanded Assistant U.S. Attorney Durham’s mandate to include a preliminary review of the treatment of detainees held at overseas locations. This second request resulted in the review of 101 detainee matters that led to two full criminal investigations. In order to conduct the investigations, the team had to review significant amounts of information, much of which was classified, and conduct many interviews in the United States and at overseas locations.

The timing on this award–coming even as DOJ aggressively prosecutes John Kiriakou for talking about this torture–is particularly cynical.

Holder also presented a Distinguished Service Award to the team that crafted a $25 billion settlement effectively immunizing the banksters for engaging in systemic mortgage fraud.

The third Distinguished Service Award is presented to the individuals involved in procuring a $25 billion mortgage servicing settlement between the United States, 49 state attorneys general and the five largest mortgage servicers, representing the largest federal-state settlement in history.   The settlement includes comprehensive new mortgage loan servicing standards, $5 billion to state and federal treasuries and borrowers who lost their homes to foreclosure, $20 billion in consumer relief and a $1 billion resolution of False Claims Act recoveries by the Eastern District of New York.

As DDay has documented relentlessly, the settlement is little more than kabuki, with most of the “consumer relief” consisting of actions the banks were already taking.

To get an idea of how outrageous it is to give an award to the torture non-prosecution team and the kabuki settlement team, compare what those teams did with the rest of the Distinguished Service recipients.

  1. The team that successfully prosecuted United States v. AU Optronics et al.,an international cartel that fixed the price of liquid crystal display (LCD) panels sold in the United States and around the world
  2. The team that implemented national standards aimed at eliminating sexual abuse in our nation’s confinement facilities
  3. The kabuki mortgage settlement team
  4. The team that investigated and dismantled the Coreflood Botnet, also known as Operation Adeona [this was a controversial expansion of Federal power to combat hacking, though since the team worked with a court order, better at least than what the government did to WikiLeaks]
  5. The team that investigated and convicted 37 members of the La Mara Salvatrucha (MS-13) gang in the San Francisco area
  6. The Tribal Trust Negotiation Team, which negotiated settlements with more than 40 Tribes in complex and long-running Tribal Trust cases [I’m not sure, but I believe this is the Cobell settlement, which is in many ways another kabuki settlement, but at least the tribes finally get some compensation]
  7. The Raj Rajaratnam investigation and prosecution team
  8. “The team whose extraordinary service led to the prosecution of Ahmed Warsame” [I quoted this because Warsame has not been convicted yet; the second-to-last item in his docket was a sealed January 5, 2012 document following a continuance, suggesting he may be cooperating in some way; this award should be considered recognition for the further twisting of our legal system to allow for novel war on terror uses]
  9. The Rod Blagojevich investigation and prosecution team
  10. INTERPOL Senior Inspector Joseph J. DeLuca for his outstanding leadership and law enforcement coordination in the apprehension and extradition of international fugitives
  11. Assistant Inspector General Thomas F. McLaughlin for 22 years of service in OIG and certain initiatives he conducted while there, including prosecuting department employees
  12. The CrimeSolutions.gov Development Team for its leadership in creating and launching the premier online resource for information about evidence-based programs and practices in criminal justice, juvenile justice and crime victim services
  13. The torture non-prosecution team
  14. The Congressman William Jefferson investigation and prosecution team

Five of these are for successful prosecutions–AU Optronics, MS-13 gang members, Raj Rajaratnam, Rod Blagojevich, William Jefferson. Another two–the Coreflood Botnet and Warsame actions–neutralized a threat, albeit through novel and controversial means. And then there are the teams that worked to make the criminal justice system more humane.

But rather than holding criminals accountable–punishing those that degraded our nation and created new reasons for people to join terrorists, punishing those who crashed our economy and stole the wealth of millions of families–the Durham and Mortgage Settlement teams made us less safe. They immunized crime, rather than punishing it.

“No one is above the law,” Eric Holder has said on other occasions. Not surprisingly, he didn’t say that yesterday, because it’s clear that some people–the torturers and the banksters–are indeed above the law.

Putting the Torture Back in the Torture Whistleblowing Case

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Kevin Gosztola has suggested and Josh Gerstein has confirmed that, along with Matthew Cole and Scott Shane, John Kiriakou has subpoenaed the Washington Post’s Julie Tate to give a deposition in his leak case.

The Shane subpoena is unsurprising. After all, it’s pretty clearly DOJ found Kiriakou through Shane’s June 22, 2008 story for which he claims to have 24 sources. Meaning any of the 23 other sources may be possible sources for Deuce Martinez’ identity, one of the charged leaks in the indictment. What’s interesting, however, is that Jesselyn Radack suggested to me on Twitter that Kiriakou might not subpoena Shane.

Matthew Cole is a more interesting subpoena, though also not surprising. After all, this investigation started not by investigating Shane’s story, but investigating the name of torturers submitted in a Gitmo filing. Presumably, then, DOJ first grilled the lawyers and their investigators about how they had learned the identities of the torturers they had included in that filing (note, Covert Officer A was not named there, because he was still covert), and from there they ultimately found Kiriakou.

Which brings us to Tate, who previously hasn’t been mentioned in this case. Gerstein writes,

Tate, a Post researcher who worked on stories about the Guantanamo prisoners and helped develop a Post databased of the inmates, was not mentioned in the indictment. However, Kiriakou’s lawyers said in a court filing “information developed by Mr. Kiriakou’s defense indicates that Researcher 1 [Tate] participated with Journalist A  [Cole] in certain activities alleged in the Indictment.”

Cole wasn’t actually alleged to have done anything in the indictment (though the complaint gets closer to suggesting he was investigating the torturers for the Gitmo defendants). But the suggestion is he was in a chain of information that ultimately led back to a bunch of lawyers unjustly accused of improperly treating classified information in a bid to defend their clients. Radack suggested Tate had a similar role.

What do @matthewacole & @JulieATate have in common?

I’m guessing this suggests Tate was somewhere in that same chain of information.

Consider for a moment how this complaint and indictment were structured by the now-retired Patrick Fitzgerald: Covert Officer A was not named in the original Gitmo filing, because he was covert. And Deuce Martinez may have been named, but he did not do the torturing; he did the questioning.

So Fitzgerald structured this case so as to avoid mentioning–much less admitting–that at its root lies a bunch of men guilty of torture. At its root lies the effort to hide the identity of torturers, and CIA’s efforts to punish those who brought that to light. If I’m right, and Tate is in that chain of people who exposed the identity of some torturers, then that’s part of what Kiriakou’s after: to show that he was simply involved in an effort to expose torturers. A whistleblower.

But there’s one other element. Radack also notes the irony here: the government is in a pickle, because they’ve been working very hard in the Jeffrey Sterling case to establish a precedent saying journalists can be subpoenaed in the same District as the Kiriakou case, EDVA, CIA’s home District. So they can’t very well turn around and say these journalists can’t be subpoenaed here. All the more so given that Kiriakou doesn’t have the luxury of just dropping the case to avoid subpoenaing the journalists, as the government does in Sterling.

I’m not sure it’ll work, but the Tate and Cole subpoenas sure seem like an effort to put the real lawbreakers–the torturers–back in the forefront of this case.

Steven Bradbury’s Revenge

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Since I noted in August 2011 that Mitt had named two torture architects to his legal advisory committee (Tim Flanigan and Steve Bradbury), I have had zero doubt that Mitt would embrace torture if he were President. So Charlie Savage’s story–reporting on a September 2011 memo confirming that fact–wasn’t surprising in the least to me. Here’s the key recommendation from the memo:

Governor Romney has consistently supported enhanced interrogation techniques. Governor Romney is also on record as stating that he does not believe it is wise for him, as a presidential candidate, to describe precisely which techniques he would use in interrogating detainees. The combination of these two positions, as well as the information presented above, leads to two principal options in this area for his campaign.

The first option is that Governor Romney could pledge that upon taking office, he will rescind and replace President Obama’ s Executive Order restricting government interrogators to the Army Field Manual. Consistent with the authority reserved for the President under the Military Commissions Act, he could commit his Administration to authorizing (classified) enhanced interrogation techniques against high-value detainees that are safe, legal, and effective in generating intelligence to save American lives. But because President Obama’s release of the OLC memos has reduced the number of available techniques that meet these criteria, Governor Romney should not commit in advance to a timetable for implementing this plan; it may well take time to identify potential techniques and analyze their effectiveness and legality.

[snip]

The Subcommittee recommends the first option. Governor Romney has recognized for years that the sounder policy outcome is the revival of the enhanced interrogation program. And a reluctance by the Governor to expressly endorse such an outcome during the campaign could become a self-fulfilling prophecy once he takes office by signaling to the bureaucracy that this is not a deeply-felt priority. [my emphasis]

Mitt is pro-torture. We knew that, and he hasn’t hidden that fact.

But there are a couple of details about this that are curious.

First, note the language here. The advisors worry that if Mitt doesn’t explicitly endorse getting back into the torture business during the election, he might not do so. They want to force his hand before he’s elected to make sure he’ll carry through.

That is not the language of advisors. It’s the language of puppet-masters (though I’m sure the equivalent memos from inside the Obama camp aren’t much different). That is, the legal advice here is designed not so much to provide the best advice (if it were, then the support used in the memo wouldn’t be such discredited propaganda). Rather, it is to force Mitt’s hand in the eventuality he becomes President.

The other interesting aspect of this are the people. Savage provides this list of the advisors, in addition to Steven Bradbury, in the loop on this memo (he notes that it’s unclear whether they have bought off on the advice).

The list also included Michael Chertoff, the former homeland security secretary; Cully Stimson, the Pentagon’s detainee policy chief; and many other Bush-era executive branch veterans: Bradford Berenson, Elliot S. Berke, Todd F. Braunstein, Gus P. Coldebella, Jimmy Gurule, Richard D. Klingler, Ramon Martinez, Brent J. McIntosh, John C. O’Quinn, John J. Sullivan, Michael Sullivan and Alex Wong. Three others — Lee A. Casey, Maureen E. Mahoney and David B. Rivkin Jr. — served in earlier Republican administrations.

First, note where Savage starts this list: Michael Chertoff, who as Criminal Division head in 2002 refused to give Bush’s torturers an advance declination on prosecution. That refusal ultimately led to the contorted form of the original Yoo memos authorizing torture. If Chertoff supports this policy (Savage’s caveat noted), then it’s a pretty clear indication that Chertoff was cautious in 2002 because people like Ali Soufan were running around saying mock burial was torture, and not because he had any qualms about torture himself. That’s not surprising in the least, but still worth noting.

Maureen Mahoney (who defended Jay Bybee in the OPR investigation) and David Rivkin (who defended Rumsfeld in civil suits for torture) have also backed their earlier legal representation with their own reputation (or lack thereof).

Finally, note who’s not on this list: Tim Flanigan, who with Alberto Gonzales, Dick Cheney, and David Addington, was one of the most central architects of torture and other illegal counterterrorism approaches.

It’s sort of odd that Mitt advisor Tim Flanigan, one of the original architects of torture, wasn’t the one leading this effort last year.

The Mushroom Cloud Thinking Fostered By Our War on Terror

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Foreign Policy has a must read article describing how much more support for torture there is now than there was when it was the affirmative policy of our country.

Respondents in 2012 are more pro-waterboarding, pro-threatening prisoners with dogs, pro-religious humiliation, and pro-forcing-prisoners-to-remain-naked-and-chained-in-uncomfortable-positions-in-cold-rooms. In 2005, 18 percent said they believed the naked chaining approach was OK, while 79 percent thought it was wrong. In 2012, 30 percent of Americans thought this technique was right, an increase of 12 points, while just 51 percent thought it was wrong, a drop of 28 points. In 2005, only 16 percent approved of waterboarding suspected terrorists, while an overwhelming majority (82 percent) thought it was wrong to strap people on boards and force their heads underwater to simulate drowning. Now, 25 percent of Americans believe in waterboarding terrorists, and only 55 percent think it’s wrong. The only specific interrogation technique that is less popular now than in 2005, strangely enough, is prolonged sleep deprivation.

I actually find that last statistic–that people oppose the one torture technique we still use more than they did in 2005–rather interesting. There really hasn’t been any outcry about our “isolation” treatment, which can include sleep deprivation and sensory manipulation. Nevertheless, that’s the only thing people are more opposed to than they used to be.

But I’m just as interested in FP’s throwaway question, showing that a quarter of Americans would support nuking terrorists.

A quarter of all Americans are willing to use nuclear weapons to kill terrorists. No joke. This was among many surprising findings in a new national poll that YouGov recently ran for me on hot-button intelligence issues. (The poll, conducted between Aug. 24 and 30, 2012, surveyed 1,000 people and has a margin of error of +/- 4 percentage points).

To be honest, I threw in the nuclear bomb question on a lark, not expecting to find much. Boy, was I wrong.

Now, I don’t think we’re about to drop any nukes on Waziristan anytime soon (though now that we’ve improved our bunker busters, I don’t guarantee we wouldn’t use them the next time someone hides in a place like Tora Bora). I assume these 25% are just crazies who don’t think about much beyond force.

But consider what it says about the general mood in this country, 11 years after 9/11, that a quarter of the country would consider both violating all norms of civility that have grown out of WWII and killing lots and lots of innocent civilians to take out a few terrorists.

That’s the background lurking behind our drone debate, I think. I’m not saying that drone supporters are this idiotic. I do take their discussion of “surgical strikes” in good faith, regardless of how questionable that claim can be in light of our dodgy intelligence and use of signature strikes. And no matter how hard they have to twist to claim the drone strikes are legal, I also believe that is also good faith argumentation.

What I am suggesting is that the underlying mood in this country is such that low information citizens embrace astounding views. In the same way that lots of dog whistle racism from the elite encourages birthers to sustain outrageous beliefs, so too does the assumption that our best weapon against terrorism is force permits people who don’t think things through to believe that nukes would ever be an effective–much less appropriate–response to terrorism.

Latif, the NDAA, and Mitt’s Moochers

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Amy Goodman is doing a 100 city tour to support public outlets that carry Democracy Now. She also gave a talk about the importance of independent media at Grand Rapids Community Media Center.

And, she had me–live!–on her show.

Man I’ve got a lot of hair!

Mitt’s Election Would Just Mean Cofer Black Would Get His Kill List Back

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Amidst all the partying and pandering, some actual journalism did take place in Charlotte. Gawker’s John Cook asked the following people about whether Americans could trust Mitt Romney to decide which American citizens to assassinate with drones (definitely click through for the video):

  • Kay Hagen, Armed Services Subcommittee Chair on Emerging Threats
  • Carl Levin, Armed Services Committee Chair and ex officio member of Senate Intelligence Committee
  • Cary Booker, Newark Mayor
  • Lanny Davis, Asshole
  • Brad Woodhouse, DNC Spokesperson
  • Chuck Schumer, Judiciary Committee Member
  • Gloria Allred, bane of bmaz’ existence
  • Bill Press, lefty radio personality
  • Unnamed Arizona delegate

Only Bill Press gives an answer that even recognizes the gravity of the answer.

It’s an interesting question, though, for another reason.

If Mitt were elected, then the Kill List’s rightful owner, Cofer Black, might well get it back. The Kill List–like so much else–goes back to the September 17, 2001 “Gloves Come Off” Memorandum of Notification that Black threw together as a wish list of expansive counterterrorism approaches. (Also on there, btw, was partnering with Libya on torture, which Human Rights Watch further exposed the other day and I plan to return to.) And remarkably, when Cofer Black was in charge of the Kill List, it was used more judiciously than Obama has used it (Black had moved out of the Counterterrorism role at CIA before Kamal Derwish became the first American killed in a drone strike on November 5, 2002). And who knows? If Black took responsibility for the Kill List back, he might choose to focus on torture like he did before.

Don’t get me wrong–I don’t want Cofer Black back in any official capacity. But it’s worth remembering that Obama’s Kill List is really just a hand me down from the guy who, along with the Kill List, also instituted torture and partnership with Moammar Qaddafi.

Obama Looking for Structures to Ensure He Abides by Rule of Law

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Noah Shachtman does a good job of fact checking Obama’s claims about his drone program in a recent interview with Jessica Yellin.

But I’d like to push further on his comments about Obama’s claims to give Anwar al-Awlaki and Samir Khan (to say nothing of Abdulrahman al-Awlaki) due process by pointing to the way he ends this bit:

Our most powerful tool over the long term to reduce the terrorist threat is to live up to our values and to be able to shape public opinion not just here but around the world that senseless violence is not a way to resolve political differences. And so it’s very important for the President and for the entire culture of our national security team to continually ask tough questions about, are we doing the right thing? Are we abiding by rule of law? Are we abiding by due process? And then set up structures and institutional checks so that you avoid any kind of slippery slope into a place where we’re not being true to who we are.

Having started by saying that drones are just a tool, he ends up by saying that we will vanquish terrorism by upholding our values–rule of law and due process.

And then the Constitution Professor President describes “set[ting] up structures and institutional checks” to make sure that we deliver rule of law and due process.

This, from the guy whose Administration refused to litigate a suit from Anwar al-Awlaki’s father to make sure it was upholding the standards Obama claimed in this interview in Awlaki’s case.

This, from the guy whose Administration has claimed state secrets to make sure no court can review the claims of people who have been rendered or tortured or illegally wiretapped.

This, from the guy who wouldn’t do the politically difficult things to have Khalid Sheikh Mohammed tried–and surely, convicted–before a civilian court in NYC.

He’s looking for structures and institutional checks to make sure we don’t go down that slippery slope where we forget rule of law. And yet his Administration has repeatedly avoided the one mandated by the Constitution: courts.

Which, according to his own logic, means he’s not using the tool that would best work to keep us safe from terrorism.