Holder: OPR Report Due Out this Month

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By far the biggest news in today’s DOJ Oversight hearing before the Senate Judiciary Committee is that the Office of Public Responsibility report on the role of OLC lawyers in torture “should be released” this month.

Sheldon Whitehouse, who has been pushing for release of this report for years, asked Eric Holder when the report would be released.

Holder responded that the report is completed. Is is in the last stages now–a career prosecutor has to review the report. At  the end of the month, the report should be issued.

Holder explained that the report took longer than anticipated because DOJ gave lawyers representing subjects of the report more time to review the report. (This means, for example, that Miguel Estrada took his sweet time reviewing what it said about his client, John Yoo.) DOJ then had to react to responses from those lawyers. But, Holder reiterated, the report is now complete and is being review by the last career attorney before it gets released.

Now, I’m 90% sure that Holder said this was being reviewed by a “career prosecutor.” Should we take any significance from that?

It’s Greg Craig’s Fault that Dawn Johnsen Hasn’t Been Confirmed

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Marc Ambinder has one of the most thorough discussions of Greg Craig’s ouster I’ve seen so far. It claims (Eric Holder’s public statements notwithstanding) that Craig wasn’t ousted for his “idealism” on national security…

The notion that the President was dissatisfied with Craig’s handling of the Guantanamo Bay closure has reached the level of an accepted urban myth, even though it is not true.  This may be Craig’s legacy — and it may serve him well with his allies on the ideological left who are eager to portray his departure as evidence that Obama rejects a new national security paradigm.

Rather, he was ousted because his focus on such issues distracted him from things like Senate confirmations.

The White House was also dissatisfied with Craig’s handling of political appointments, believing that Craig should have spent more time working with the Justice Department and with Congress to force through some of the President’s most eagerly-awaited principals, like Dawn Johnsen, whose nomination to be head of the Justice Department’s Office of Legal Counsel still languishes. The issue of nominations is especially sensitive for the president, a constitutional law lecturer in his former life. [my emphasis]

As a threshold matter, let me agree that Bob Bauer will be much more successful at ramming through nominations, which if we’re going to reclaim the judicial system from the mess that the Federalist Society and Alberto Gonzales’ DOJ made of it, is critically important. Bauer’s a fierce partisan unafraid to call out Republicans on their partisan grand-standing. I look forward to his role in nominations.

That said, Ambinder does give evidence of such a split.

It is true that Mr. Craig and Mr. Emanuel did not always see eye to eye.  It was Craig’s importuning that may have convinced the president to release Bush-era Justice Department memorandum that sanctioned torture.

“This is what you were elected to do,” Craig told the president in one Oval Office meeting.

Emanuel worried about the political repercussions of a first-term young Democratic president who would appear to be thumbing the eyes of the national security establishment.  Craig won the round.

Which, at the very least, ought to make you ask: even accepting the premise that this was all about Craig’s management problems, why was it handled in this way? Why was it clear to everyone outside the White House–at the time when, Ambinder claims, “the president’s staff appeared to be ready to give Craig a second chance”–that there was this animosity between Rahm and Craig? Why was that animosity always framed in terms of Gitmo and torture? If “the president’s staff appeared ready to give Craig a second chance,” why did leaks that looked remarkably like leaks from the President’s Chief of Staff continue unabated? Why did that leaker turn this into a public issue, rather than just handling it quietly?

If the White House is ousting people for bad management, and the Chief of Staff spent the last three or four months leaking about Craig’s imminent departure rather than implementing that imminent departure, then why isn’t Obama also ousting the Chief of Staff, who turned the White House into a petty sniping war instead of managing it like an adult?

Rahm may want to blame Greg Craig that Dawn Johnsen hasn’t been confirmed (a nice sop to the liberals suspicious that Craig’s ouster was over torture). But in doing so, he is making it clear he’s to blame for turning the Craig ouster into a fiasco.

A Trial Showing Torture Was Unnecessary

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I’m not amused that the Wall Street Journal solicited an op-ed attacking the decision to try KSM in civilian court from one of the people–John Yoo–with the biggest conflict on such a decision. It’s yet more proof that Rupert Murdoch is engaged in a partisan pursuit, even with the WSJ.

But I am amused at the way John Yoo dismantles his own argument. Take these two claims, for example:

Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.

[snip]

For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui’s lawyers tied the court up in knots.

All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades. The only reason the trial ended was because, at the last minute, Moussaoui decided to plead guilty. That plea relieved the government of the choice between allowing a fishing expedition into its intelligence files or dismissing the charges.

The first claim suggests the prosecutors will have to reveal all the information they’ve got against KSM. That’s a lie, one that presumably Professor Yoo knows is a lie. Eric Holder has made it quite clear that there is some set of evidence–much of it not public yet–that should be enough to prove KSM’s guilt, independent of all the information they collected pursuant to Yoo’s opinions authorizing torturing KSM.

And I highly doubt that Yoo’s really worried about revealing the details of other al Qaeda figures. We’ve already worked our way through about seven new generations of “al Qaeda Number Threes” since we captured KSM, so I doubt the network looks anything like it did when KSM had first-hand knowledge of it. Besides, if after eight years of waging full-scale war against al Qaeda we haven’t captured these people, then chances are we either won’t or can’t.

You know–can’t. Like Osama bin Laden.

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Eric Holder on Greg Craig’s Departure

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I’ve long been tracking the suggestion that Greg Craig was being ousted because he–like Eric Holder–supported some accountability on torture (see here, here, here, and here). That’s why I find this exchange so interesting:

Q: [inaudible] Greg Craig’s departure and whether that was a surprise to you?

Holder: Yeah, it was a surprise. Um, Greg Craig is a great lawyer, he has been a great friend to the Justice Department. We’ve had a good relationship with him. He has, I think, contributed in a significant way to the success of this Administration and, I think, to the success of the effort to close Guantanamo. Um, Greg is a friend of mine. And those who have tried to place on him, um, I think an unfair proportion of the blame as to why things have not proceeded perhaps as we had wanted with regard to Guantanamo, that’s simply unfair. He is a great lawyer, he has been a great White House Counsel, he was an early supporter of this President, and I know he leaves with the thanks of the President, and certainly with my gratitude.

The entire transcript, including Q&A, is below the fold.

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The 9/11 Trials: The Torture Question

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Michael Isikoff asked one of the key questions about the conduct of KSM’s trial in a civilian court: whether or not he would be able to enter evidence of his torture into the trial. Holder basically answered–though he didn’t say it explicitly–that the charges and the prosecutions evidence will be designed such that the evidence of KSM’s torture will not be directly relevant.

Isikoff: [inaudible] harsh interrogation techniques. Inevitably, defense attorneys are going to seek full disclosure about the circumstances of how these detainees were treated while they were in US custody and get as much of that before the jury as they can. What is the department’s position on whether the defense will be entitled to know the full story of how these detainees were treated while they were in US custody?

Holder: Well, I think the question … among the questions that have to be asked in that regard is relevance. How relevant were those statements? Will those statements be used? I don’t know what the defense will try to do–it’s hard for me to speculate at this point, so it’s hard to know exactly what our response will be. But I’m quite confident on the basis of the evidence that we will be able to present, some of which I said has not been even publicly discussed before that we will be successful in our attempts to convict those men.

Isikoff: But will they be entitled to that evidence? Will they be entitled to know the full story of how they were treated?

Holder: Well, we’ll see what motions they file and we’ll see what responses we’ll make and a judge will ultimately make that determination.

KSM to Be Tried in NYC, al-Nashiri to Be Tried in Military Commission, Abu Zubaydah to ?

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The AP is previewing what Eric Holder will announce later today regarding where various Gitmo detainees will be tried. It reports that KSM–and the other four people charged with him as 9/11 conspirators–will be tried in civilian court in NY.

Rahim al-Nashiri will be tried in a military commission–though it’s not clear where he’ll be tried.

The AP makes no mention of where Abu Zubaydah will be tried. The AP also made no mention of Mohammed al-Qahtani, who is alleged to be the 20th 9/11 hijacker.

While I’m glad a trial of KSM will demonstrate that our criminal system can deal with the worst of the worst, it’s the treatment of the others–al-Nashiri, Abu Zubaydah, and al-Qahtani–that will truly demonstrate the strength or failures of our legal system. KSM, after all, has said he wants to be executed; KSM freely boasts of his role in 9/11. That’ll make it easier to avoid discussing his brutal torture.

But what do you do with someone like Abu Zubaydah, who is probably not fit for trial, whose diaries (which the government still won’t give him) would prove he was tortured, and who wasn’t who they said he was when they waterboarded him 83 times?

Update: In what is surely directly related news, Greg Craig will announce his resignation today. This suggests Craig disagrees substantially with some part of this plan. Given that Craig was one of those who wanted accountability for torture, that suggests he may see some of these choices as designed to hide the evidence of torture.

Liberate the OPR Report

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Remember the OPR Report–the one that was due done about 8 months ago? The one that showed how John Yoo’s bad lawyer contributed to torture?

Whatever happened to that?

The Alliance for Justice and Credo are doing a petition today to pressure Eric Holder to release the report.

The Department of Justice has been investigating the infamous “torture memos” since 2004. A report on the findings was expected by June of this year. More than four months later, we are still is waiting to hear from the Justice Department on exactly who authorized the use of torture by American men and women.

The lack of public information about how torture was approved keeps the focus on the actions of CIA interrogators, rather than investigating those who designed, ordered, and justified torture. For the past five years, while the facts have been concealed, questions about the responsibility of the lawyers who allowed torture have been debated in the court of public opinion while they should be settled in a court of law. Releasing the report is the first step in establishing accountability.

Click through to sign the petition.

Crazy Pete Hoekstra Is a Big Fat* Demogoging Liar

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Since Crazy Pete is out demagoging the Fort Hood killings, I thought I would put together a list of his most notable lies to serve as a reminder to journalists that they ought to think twice before crediting anything Crazy Pete says. So here goes: six of Crazy Pete’s classic lies:

Nancy Pelosi lied when she said the CIA didn’t tell her they had waterboarded Abu Zubaydah

It was clear from the start that this was a lie, given that Porter Goss’ statements about the September 2002 briefing accorded perfectly with Pelosi’s assertions about that briefing. And when pressed, Goss refused to alter that statement even after Hoekstra’s attacks on Pelosi. But in a recent uncontroverted statement, the House Intelligence Committee confirmed that the CIA had lied to Pelosi (and Goss) in that first briefing.

Seven CIA Directors claimed Obama was hurting CIA morale with the investigation into torture

In an op-ed invoking the letter seven CIA Directors had sent, Crazy Pete (and John Shadegg) pretended to quote from the latter:

[The letter from the CIA Directors] noted the “distraction and devastating impact” that reopening an investigation into enhanced interrogation of al Qaeda suspects is having on “CIA morale, America’s counterterrorism efforts and our foreign intelligence partnerships.”

But they appear to have just made those quotes up out of thin air. In the grand scheme of Crazy Pete’s long catalog of lies, this partisan attack might not be that big–except that I’m stunned two sitting Congressmen would just make shit up and claim a bunch of retired Spooks-in-Chief had said them.

Eureka!!! WMD in Iraq!!!

Remember when Crazy Pete and Rick “Man on Dog” Santorum claimed that a few piles of canisters filled with now-inert chemical weapons were the WMDs we went to war to find?

Yeah.

I’d just leave it at that–but it bears mentioning that the pattern of the demagoging is the same as Crazy Pete is employing now: claiming that the intelligence community is not being forthcoming with secret information that Crazy Pete has been privy to, and if they only would reveal what they know, Crazy Pete would score political points. In other words, we’ve heard precisely the kinds of claims Crazy Pete is making now before–and in the past those claims proved to be bullshit.

CIA didn’t reveal those expired munitions because key CIA officials want to help Al Qaeda [update]

As Spencer notes below, shortly after Crazy Pete trumpeted his inert chemical find, he upped the ante, suggesting that certain people within the intelligence community want to help al Qaeda. Crazy Pete wouldn’t name those al Qaeda sympathizers, but thought it important to make the claim nevertheless, explaining it is simply naive to not make the claim, even if there is no evidence to substantiate it.

Al Qaeda will kill unemployed Michiganders if Gitmo prisoners move to Standish

In his efforts to scare the people of Standish, MI, out of hosting Gitmo’s prisoners, Crazy Pete claimed both that Al Qaeda would target the families of those working at Standish and that none of the jobs at Standish would go to locals–they would instead go to military personnel. Read more →

It’s Not Yoo, It’s the History

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If you had to guess the first several words that Miguel Estrada would use to argue that John Yoo should not be held accountable for his bad lawyering, what would those words be? (Answer below the fold.)

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Cheney Now Remembers CIA-Related Information!!

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DickCheneyHeadScratchCartoonified_300pxwI’m not so much surprised that Cheney, once again, used a public speaking opportunity to bitch and moan that Eric Holder is nodding briefly (but very ambivalently) toward the requirement to investigate the use of torture.

Cheney, speaking to the Economic Club of Southwest Michigan, was harshest when addressing a Department of Justice investigation into so-called “enhanced interrogations” used by the CIA and military on detained suspected terrorists.

“I find that absolutely abhorrent,” said Cheney, who served under George W. Bush from 2001 to 2009. “It bothers the heck out of me that we would go after those people who have been instrumental in preventing further attacks against the United States.”

The techniques, he said, were approved by Bush’s justice department and closely monitored by the CIA.

I’m surprised by the contrast. After all, last we saw Cheney, he was a babbling old fool who couldn’t seem to remember an attack on the CIA he had ordered up just a year earlier–or conversations he had had about those orders just seven months before. Yet here he was last night, talking about orders he gave to the CIA seven years ago, as if they were yesterday.

It’s remarkable, the way Cheney’s memory seems to be fresh all of a sudden.

But now that I think about it, Cheney still is–at heart–that same babbling old man, unable to remember basic facts about the events he has ordered, Consider these two details from his speech.

It did not amount to torture and broke no laws or international agreements, and the simulated drowning technique known as “waterboarding” was used only three times.

In all instances, he said, the methods used produced valuable information about terrorist operations.

Just to refresh old man PapaDick’s memory, waterboarding was used at least 268 times (83 times with Abu Zubaydah, at least 183 times with Khalid Sheikh Mohammed, and twice with Rahim al-Nashiri). With Abu Zubaydah, waterboarding produced no information that the FBI hadn’t already elicited using rapport-based interrogation. Not even Liz “BabyDick” Cheney claims waterboarding worked with al-Nashiri. And KSM provided a lot of information–much of it long after he was waterboarded, when the CIA had begun using rapport-based interrogation with him, too. I guess, too, old man PapaDick has simply forgotten how much inaccurate information these methods elicited.

So maybe I shouldn’t be surprised about Cheney’s apparently clear memory. Turns out he was the same doddering forgetful fool last night as he was on May 8, 2004, when he couldn’t seem to remember much of anything.

I guess I should be surprised, then, that MSNBC didn’t report this speech with a caveat, noting that Cheney’s memory has now proven to be completely faulty, and no one should treat his assertions about the CIA with any credibility.