Condi and Khalid El-Masri: Perhaps We’re Not the Ones to Teach Afghans about Rule of Law?

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I chuckled to myself when I read Steven Aftergood’s post on our efforts to instill rule of law in Afghanistan. Not that I don’t support the goal, mind you. But I question whether the United States is in a position anymore to be teaching others about rule of law. Consider this quote from the DOD status report on Afghanistan:

The latest survey of Afghan perceptions of the Afghan Government’s rule of law capacity shows an almost 7 percent decline in Afghans’ confidence in their government’s ability to deliver reliable formal justice. This is likely due to continued corruption and to the slow progress in hiring and placing justice professionals at the provincial level.

To begin with, we’re having our own problems with hiring and placing justice professionals.

But it’s things like this cable that make it really clear we shouldn’t be the ones to teach Afghans about rule of law. After the United States kidnapped Khalid el-Masri and sent him to the Salt Pit–which the US has insisted was under Afghan custody to avoid prosecuting Gul Rahman’s killers–he was tortured and ultimately dumped back in Macedonia. El-Masri tried to sue the CIA for his treatment, but that was of course dismissed using state secrets. And then in 2006-2007, as Germany tried to conduct its own investigation into el-Masri’s kidnapping, the US applied heavy pressure to get the Germans to withdraw warrants for the arrest of el-Masri’s kidnappers.

Which brings us to this cable.

Just as the German prosecutor issued arrest warrants for 13 CIA personnel, Condi Rice and Germany’s Foreign Minister Frank-Walter Steinmeier met in DC for a discussion of Mideast peace efforts. After they met, Steinmeier told the German press that Condi had assured him that the arrest warrants wouldn’t affect German-US relations.

Steinmeier told the Welt am Sonntag newspaper that he had raised the issue with US Secretary of State Condoleezza Rice, who “assured me there would be no negative impact on German-American relations.”

Steinmeier, whose remarks were released a day ahead of publication on Sunday, said he told Rice the warrants could only be served in Germany at present, but the government expected the court to issue international warrants at some stage.

The cable describes a February 6, 2007 meeting in which the Deputy Chief of Mission of the US Embassy in Germany, John Koenig, “corrected” the impression that Steinmeier had gotten from his meeting with Condi the week before.

In a February 6 discussion with German Deputy National Security Adviser Rolf Nikel, the DCM reiterated our strong concerns about the possible issuance of international arrest warrants in the al-Masri case. The DCM noted that the reports in the German media of the discussion on the issue between the Secretary and FM Steinmeier in Washington were not accurate, in that the media reports suggest the USG was not troubled by developments in the al-Masri case. The DCM emphasized that this was not the case and that issuance of international arrest warrants would have a negative impact on our bilateral relationship. He reminded Nikel of the repercussions to U.S.-Italian bilateral relations in the wake of a similar move by Italian authorities last year.

Koenig goes on to note that the government would have political problems in the US if the Germans issued the international arrest warrants.

The DCM pointed out that the USG would likewise have a difficult time in managing domestic political implications if international arrest warrants are issued.

Now, as Scott Horton notes, one of the most interesting things about this cable is its recipient: Condi Rice.

But the most noteworthy thing about this cable is the addressee—Condoleezza Rice. Might she and her legal advisor, John Bellinger, have had an interest in the El-Masri case that went beyond their purely professional interest in U.S.-German diplomatic relations? The decision to “snatch” El-Masri and lock him up in the “salt pit” involved the extraordinary renditions program, and it seems as a matter of routine that this would have required not only the approval of the CIA’s top echelon but also the White House-based National Security Council. It’s highly likely that Rice and Bellinger would have been involved in the decision to “snatch” and imprison El-Masri. If authority was given by Rice, then responsibility for the mistake—which might well include criminal law accountability—may also rest with her, and this fact would also not have escaped Koenig as he performed his diplomatic duties.

But it’s even better than what Horton lays out, since this was obviously a hastily called meeting in response to Steinmeier’s quotation of Condi’s assurances the warrants wouldn’t cause a problem. Note the specific language Koenig uses:

The DCM noted that the reports in the German media of the discussion on the issue between the Secretary and FM Steinmeier in Washington were not accurate, in that the media reports suggest the USG was not troubled by developments in the al-Masri case.

He’s not telling the Germans that Steinmeier was wrong, that he mis-quoted Condi. Rather, Koenig’s simply saying that the content–what Condi had said–was wrong.

I agree with Horton that Condi and John Bellinger may well have personal liability in el-Masri’s kidnapping and torture. But it appears, in addition, that Condi lied to her German counterpart to create the public appearance that the US had no concerns about the arrest warrants, and then sent her subordinate to correct that statement. That is, Condi used her counterpart to create the false impression that she, personally, had no concerns about the arrest warrants.

So to cover up a crime largely committed by the US in the Afghan’s own country, the Secretary of State appears to have lied to her counterpart, and then secretly corrected her lie.

But back to Aftergood’s post on what we have to teach the Afghans about rule of law. As he notes, a recent Congressional Research Service report on the topic mentioned a strategy document written under the leadership of Condi’s successor at State, “U.S. Strategy for Anti-Corruption in Afghanistan,” which is “not available publicly.” The report includes the four main pillars of this strategy. And the first of those?

Pillar 1: Tackle the pervasive culture of impunity and improve and expand access to the state justice sector, by increasing capacity and reducing corruption in the justice sector’s institutions;

So you see, Condi’s successor’s plan to teach the Afghans about Rule of Law starts with us telling them they need to “tackle the pervasive culture of impunity” (to say nothing about access to justice, on which we have our own problems as well).

I guess Condi isn’t the only Secretary of State saying one thing and then doing another.

John Bellinger: If the War Is Illegal, Just Change the Law

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John Bellinger has been publicly suggesting the Obama Administration had exceeded the terms of the AUMF for some time. So it is unsurprising that he took the opportunity of a Republican House, the incoming Armed Services Chair’s explicit support for a new AUMF, and the Ghailani verdict to more fully develop his argument in an op-ed. It’s a well-crafted op-ed, such as in the way it avoids explicitly saying the government has been breaking the law in its pursuit of terrorism, when he pretends the only people we’ve been targeting in Pakistan, Yemen, and Somalia are al Qaeda leaders.

The Bush and Obama administrations have relied on this authority to wage the ground war in Afghanistan; to exert lethal force (including drone strikes) against al-Qaeda leaders in Pakistan, Yemen and Somalia; and to detain suspected al-Qaeda and Taliban members in Guantanamo Bay, Cuba, and Afghanistan.

In fact, the targets include a heck of a lot of grunts and many people with terrorist ties, but not direct affiliation with al Qaeda. Oh, and a bunch of civilians, but I guess we’re to assume the government just has bad aim.

Then there’s this game attempt to pretend that everyone will find something to love in the Forever War.

Nearly 10 years after the Sept. 11 attacks, the Obama administration, congressional Republicans and Democrats, and civil liberties groups all have an interest in updating this aging legislation. Republicans should be willing to help the president ensure that combatant commanders and intelligence agencies have ample legal authority to kill or capture terrorists who threaten the United States today. Many Republicans also want to give clearer statutory direction to federal judges regarding who may be detained and for how long. For their part, civil liberties groups and their Democratic supporters in Congress can insist that terrorist suspects who are U.S. nationals receive additional protections before being targeted and that persons detained now or in the future under the laws of war have a right to adequate administrative or judicial review.

As if Republicans weren’t already clamoring for more war and more war powers. As if there would be any doubt that Republicans would answer the “who may be detained and for how long” with any answer but, “Forever War, Baby!” As if dubbing the new AUMF “the al-Awlaki and PETA law”–putting some limits on the targeting of American citizens that presumably already exist–would be enough to entice civil libertarians (whom, Bellinger seems to suggest, only have support among Democrats).

And did you notice how Bellinger slipped in giving intelligence agencies the legal authority to kill terrorists? One of the problems–though Bellinger doesn’t say this explicitly–is that we’re increasingly using non-military personnel to target drones, which raises legal questions about whether they’re not unprivileged combatants in the same way al Qaeda is.

In any case, the lawyer did his work on this op-ed.

But here’s what I find to be the most interesting detail in it:

For at least five years, lawyers in and outside the Bush and Obama administrations have recognized the need to replace this act with a clearer law. The Bush administration chose not to seek an update because it did not want to work with the legislative branch.

Which I translate to read, “Back in 2005, several lawyers in the Bush Administration and I [I’m assuming Comey and Zelikow and Matthew Waxman] told the President he was breaking the law and should ask for an updated AUMF. But in spite of the fact that Congress was at that very moment passing the Detainee Treatment Act, the Bush White House claimed it couldn’t work with Congress to rewrite the AUMF to try to give the war they were already fighting some legal cover.”

Though of course, in 2005, Bush’s lawyers may have been trying to pretty up the fact that their illegal wiretap program–which constituted the use of military powers within the United States against US citizens–some kind of pretty face before it was exposed.

We’ve been fighting the Forever Whoever War since at least 2005. And now this clever lawyer wants to make sure the Forever War is legally sanctioned for the foreseeable future.

CIA Secretly Breaking the Law with Impunity Again

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Apparently, the Jan Schakowsky’s House Subcommittee completed its investigations of all the times the CIA failed to inform the Gang of Eight about covert ops and in other ways broke the law. Apparently, that investigation found “several instances” where CIA failed for follow the law procedures. But you can’t know precisely what those violations are, because they’re secret.

Here’s Silvestre Reyes’ statement on the investigation.

Today, the Committee officially completed its investigation into the congressional notification practices of the Intelligence Community by voting to adopt a final report presented by Subcommittee on Oversight and Investigations Chair Jan Schakowsky.

In its investigation, the Committee examined sixteen specific instances, spanning three Administrations, in which the Community did not provide Congress with complete, timely, and accurate information about intelligence activities. The Committee also examined federal law and regulations concerning the provision of information about intelligence activities to Congress; congressional notification policies, practices, and procedures across the Intelligence Community; and whether those contributed to any past notification failures.

The findings, I believe, are impressive and eye-opening. The report details the facts uncovered by the investigation in a thorough and even-handed manner. Its analysis is careful and well-founded. Its conclusions and recommendations are reasonable. I commend Ms. Schakowsky and her staff for their excellent work.

Given the sensitive nature of the investigation’s core issues, the content of the report is classified. I can say, though, that in several specific instances, certain individuals did not adhere to the high standards set forth by the Intelligence Community and its agencies. It’s the Committee’s aim to have these standards implemented on an official level, through policy, procedure, or law.

I am pleased to note that several of the recommendations contained in this report, including Gang of Eight reform, were largely enacted back in October when the President signed the FY2010 Intelligence Authorization Act into law.

Finally, let me emphasize that the Committee supports the efforts of the intelligence workforce in its difficult mission to keep America safe. And, while there may be differences of opinion with respect to specific findings, I think that all members can agree that the Committee must be kept fully and currently informed of significant intelligence activities in order to assist the Intelligence Community and keep them well-resourced. [my emphasis]

We Convicted a Guy the Bush Administration Tortured

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More like this please:

“So, we tried a guy (who the Bush Admin tortured and then held at GTMO for 4-plus years with no end game whatsoever) in a federal court before a NY jury with full transparency and international legitimacy and — despite all of the legacy problems of the case (i.e., evidence getting thrown out because of Bush-Admin torture, etc,) we were STILL able to convict him and INCAPACITATE him for essentially the rest of his natural life, AND there was not one — not one — security problem associated with the trial.”

“Would it have been better optically if he had been convicted of more counts? Sure. Would it have made any practical difference? No.”

If every time the fearmongers rolled out their dog and pony show, the Obama Administration would go on the attack and focus on how stupid and inhumane Bush Administration policy was, then maybe it would open up enough space to actually move beyond those stupid policies.

Of course, the whole thing would be a lot more effective if this anonymous Senior Administration Official had the courage to say all this on the record, under his own name. But–assuming this is one of the people close to DOJ who, if they acknowledged that Ghailani was tortured, would be obliged to prosecute the torturers–that would also mean the Obama Admin would start prosecuting the Bushies for their inhumane treatment. I’m all in favor of that, but that would entail looking backward, and we know that’s not going to happen.

Which is probably why this is will be the last powerful response we hear like this.

Binyam Mohamed Wins Settlement for Being Tortured

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Binyam Mohamed and a number of other detainees will be paid millions by the British government to compensate for their role in torturing him.

Around a dozen men who accused British security forces of colluding in their transfer overseas are to get millions in compensation from the UK government.

Some of the men, who are all British citizens or residents, were detained at the Guantanamo Bay prison camp in Cuba.

At least six of them alleged UK forces were complicit in their torture before they arrived at Guantanamo.

While I’m glad Mohamed has finally won some kind of recompense for his treatment here (because it appears he’ll never get it from the US, the country in charge of his detention), it likely limits any further revelations we’ll get through that court proceeding. The Brits will now proceed to have their review of torture (again, something you’ll never see in this country) in secret.

As we move forward with no accountability (aside from the British taxpayers paying a settlement in lieu of the torturers) for torture…

It’s Safer When You Don’t Let the President Reflect for Himself

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I am very very grateful that Ryan Grim exposed Bush as a plagiarist on Thursday.

When Crown Publishing inked a deal with George W. Bush for his memoirs, the publisher knew it wasn’t getting Faulkner. But the book, at least, promises “gripping, never-before-heard detail” about the former president’s key decisions, offering to bring readers “aboard Air Force One on 9/11, in the hours after America’s most devastating attack since Pearl Harbor; at the head of the table in the Situation Room in the moments before launching the war in Iraq,” and other undisclosed and weighty locations.

Crown also got a mash-up of worn-out anecdotes from previously published memoirs written by his subordinates, from which Bush lifts quotes word for word, passing them off as his own recollections. He took equal license in lifting from nonfiction books about his presidency or newspaper or magazine articles from the time. Far from shedding light on how the president approached the crucial “decision points” of his presidency, the clip jobs illuminate something shallower and less surprising about Bush’s character: He’s too lazy to write his own memoir.

You see, I was traveling yesterday, and had almost prepared myself to pay full price for Bush’s memoir so I could do a close reading of the Iraq intelligence, torture, and illegal wiretapping bits. But Ryan’s piece gave me a convenient excuse to put that off until I can get the book for a dollar or so online. After all, if I want to read what Bush’s memoir says, I can just go re-read Woodward, right?

But I’m curious whether there’s another reason than the one Ryan suggests–laziness–that explains Bush’s plagiarism.

For some of the sections that appear to be lifted, is it possible that Bush plagiarized the existing carefully crafted narrative of an event to make sure his “memoir” matched that narrative? After all, Karen Hughes and others did a lot of work on those narratives in the first go-around, so why not lift them?

And for passages such as the following one that Ryan suggests may have been lifted, that may be more important given the underlying legal issues.

From Decision Points, p. 105: “In one of our final meetings, I informed Dick that I would not issue a pardon. He stared at me with an intense look. ‘I can’t believe you are going to leave a soldier on the battlefield,’ he said. The comment stung. In eight years, I had never seen Dick like this, or even close to this.”

Or did Bush pull this from Time magazine, “Legacy Fight: Inside Bush and Cheney’s Final Days,” July 24, 2009: “A day later, Cheney gave an interview to a conservative magazine, saying he disagreed with the President’s decision on the Libby pardon. Other Libby backers were quoted in the article, calling Bush ‘dishonorable’ and saying he had left a soldier on the battlefield, language Cheney had used throughout the debate over the pardon.”

After all, the decision not to pardon Libby was made after consulting with his personal defense lawyer, so I imagine Bush wants to get this one right.

Now, granted, Bush admitted to war crimes in his book, so he did exhibit a general lack of caution in his presentation of some of the touchy legal issues dealt with in the book. But unlike Cheney (who has explicitly said that the statute of limitations will have expired on some of the crimes he’ll describe in his upcoming memoir), Bush may well need to finesse these issues.

“The President Ultimately Made the Call”

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GQ has another of those articles describing Eric Holder’s failed efforts to restore DOJ’s independence and sustain rule of law as Attorney General. There are a few new details in there — such as details of what torture was described in the CIA IG Report but must be among the redactions (notably, strangling of one prisoner).

As he flipped through the pages of one report, Holder told me, reading descriptions of field agents holding a power drill to the head of one prisoner, strangling another, battering some, waterboarding others, and threatening to rape their wives and children, he was filled with “a combination of disgust and sadness.”

The piece is more rich in capturing Holder’s self-denial, his attempts to ignore that his actions directly violate principles he laid out before he became Attorney General.

“But before the inauguration,” I said, “both you and the president said that habeas should apply to enemy combatants.”

“I’m not sure I ever opined on that,” Holder said.

“I could read you a quote.”

Holder laughed uncomfortably.

“Here’s the quote: ‘Our government authorized the use of torture, approved secret electronic surveillance without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants,’ and a few other things.”

Holder was silent. “But I was talking about Guantánamo,” he said. “I’m pretty sure I was talking about Guantánamo.”

But I’m most interested in a fairly subtle moment, when a former White House official (it might be someone like Greg Craig) made it clear that Obama, not Rahm, made the decision to have the White House pick the venue for Khalid Sheikh Mohammed’s trial.

“It was wildly unfortunate,” says David Ogden, Holder’s former deputy attorney general. “The president gave that decision to the attorney general. The attorney general made it. Then the White House had to deal with a political reality in Congress. And the situation was assessed as being politically untenable.” Others are less forgiving, calling Obama’s capitulation an insult to Holder and a regression to the arbitrary policy of the Bush years. “There is an important principle at stake here,” Holder told me. “You don’t shy away from using this great system for political reasons. It hampers our ability as we interact with our allies if we don’t stand for the rule of law when it comes to a case that is politically difficult to bring.” Among Holder’s political allies, the blame for KSM lay not with Rahm but Obama. “Rahm was critical,” says one former White House official. “But the president ultimately made the call.”

The whole piece seems to lay out Holder’s angst as he decides to stick around after being stripped of his independence. Given this detail — the the President himself replaced justice with politics — he really ought to think seriously about regaining his principle by leaving.

Torture? Check. Covering Up Torture? Check. Rule of Law? Nope.

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I think it was the timing of the end of the torture investigation that hurts most of all. Just days ago, Harold Koh was boasting of the Durham investigation to the UN. Then Bush started his dog and pony show, including his proud admission to have ordered up torture. All of which made today’s announcement, that no one will be charged for covering up evidence of torture, almost anti-climactic.

Of course no one will be charged for destroying the evidence of torture! Our country has spun so far beyond holding the criminals who run our country accountable that even the notion of accountability for torture was becoming quaint and musty while we waited and screamed for some kind of acknowledgment that Durham had let the statute of limitations on the torture tape destruction expire. I doubt they would have even marked the moment–yet another criminal investigation of the Bush Administration ending in nothing–it if weren’t for the big stink bmaz has been making. Well, maybe that’s not right–after all, Bob Bennett was bound to do a very public victory lap, because that’s what he’s paid for.

The investigation continues, DOJ tells us, into obstruction of the Durham investigation itself. Maybe they think they’ve caught someone like Porter Goss in a lie. But at this point, that almost seems like a nice story the prosecutors are telling themselves so they can believe they’re still prosecutors, so they can believe we still have rule of law in this country.

This inquiry started long before Obama started looking forward, not backward. It started before the White House allowed the Chief of Staff to override the Attorney General on Gitmo and torture. It started before we found out that someone had destroyed many of the torture documents at DOJ–only to find no one at DOJ cared. It started before the Obama DOJ made up silly reasons why Americans couldn’t see what the Vice President had to say about ordering the leak of a CIA officer’s identity. It started before the Obama White House kept invoking State Secrets to cover up Bush’s crimes, from illegal wiretapping, to kidnapping, to torture. It started at a time when we naively believed that Change might include putting the legal abuses of the past behind us.

This inquiry started before the Obama Administration assumed the right to kill American citizens with no due process–all the while invoking State Secrets to hide that, too.

This inquiry started before Bush and then Obama let BP get away with serial violations of the laws that protect our workers and environment, and then acted surprised when BP ruined our Gulf.

This inquiry started before Obama helped to cover up the massive fraud committed by our banks, even while it continued to find ways to print money for those same banks. It started, too, before the Obama Administration ignored mounting evidence that banks–the banks employed by taxpayer owned Fannie and Freddie–were foreclosing on homes they didn’t have the legal right to foreclose on, going so far as to counterfeit documents to justify it. This inquiry started when we still believed in the old-fashioned principle of property rights.

This inquiry started before banksters got excused when they mowed down cyclists and left the scene of the crime, because a felony would mean the bankster would lose his job.

The ACLU’s Anthony Romero reacted to this news saying, in part, “We cannot say that we live under the rule of law unless we are clear that no one is above the law.”

I think it’s clear. We cannot say we live under the rule of law.

Durham Torture Tape Case Dies, US Duplicity in Geneva & The Press Snoozes

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From the best available information as to the original destruction date of the infamous “Torture Tapes” having been on November 8, 2005, the statute of limitations for charging any general crime by employees and/or agents of the US Government for said destruction will expire at midnight Monday November 8, 2010 as the general statute of limitation is five years. By operation of law, the statute would have run yesterday were it not a Sunday. So, by the time you are reading this, it is over. Absent something extraordinary, and I mean really extraordinary, a criminal statute of limitation is effectively a bar to subject matter jurisdiction and that is that. Ding dong, the John Durham torture tape investigation is thus dead.

Last week, I wrote a letter to the DOJ and saw to it that it was delivered to the main contacts, Dean Boyd and Tracy Schmaler, as well as John Durham’s office. None of them responded. Finally, late Monday afternoon I called Durham’s office, and they acknowledged having received the letter. Although extremely cordial, there was simply no meaningful information or discussion to be had on the subject. “We have no comment” was about the size of it. I asked about the remote possibility of the existence of a sealed indictment; there was “no comment” on that either, and there is absolutely no reason in the world to think anything exists in this regard.

Oh, there was one thing; when I asked why there had been no formal response to my letter, I was told perhaps it was a “little edgy”. Apparently actually phrasing an inquiry with legal specificity and facts makes it too “edgy” for the United States Department Of Justice. Who knew? Ironically, at the same time this discussion was transpiring today, the very same Obama DOJ was in US Federal Court, in front of Judge John Bates of the DC District, arguing for their unfettered right to extrajudicially execute an American citizen, and do so in secret without explanation. But my letter asking about the dying Durham investigation was edgy. The DOJ’s priorities, morals and duties seem to be a bit off kilter when it comes Read more →

Cheney Pissed at Bush: Distraction with the Wrong Cover-Up

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Today’s news will be dominated with Bush’s admission that Cheney was mad at him for not pardoning Libby.

Bush, in an interview aired Monday on TODAY, said Cheney was angry that Bush only commuted the sentence of I. Lewis “Scooter” Libby, convicted of lying during the leak investigation.

[snip]

‘I can’t believe you’re going to leave a soldier on the battlefield,’ former president says ex-VP told him.

Of course we already knew this. This was widely reported just after Obama’s inauguration. And as I pointed out at the time, the underlying story to the non-pardon probably has everything to do with making sure that Libby won’t ever reveal Bush’s own role in exposing Valerie Plame’s identity.

It would have been nice if Matt Lauer asked Bush about whether he refused to pardon Libby so as to keep him silent, but I suppose Lauer’s job is to help Bush sell books, not to ask tuff qweschins.

But an even better question would have been to ask Bush whether he believes, with the statute of limitations expiring on the torture tape destruction, his own role in approving torture is now safe. Bush allies have spun a nice story that the White House opposed the destruction of the torture tapes and was mad that Jose Rodriguez did it anyway. If that’s true (ha!), then Bush ought to be pissed that Rodriguez is, apparently, getting away with it. But again, I think Lauer’s role is to help Bush sell books, not ask the difficult questions.

As the press is distracted with a rehashing of the successful cover-up of one of Bush’s crimes, we ought to remember that today marks the successful cover-up of a more horrible crime.