If You Keep Getting Stopped at Airports, That’s Not a Secret

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This article, published yesterday morning, on the al-Haramain case provides a little background on the Administration’s expanding use of State Secrets–and of judge’s reluctance to challenge it.

Presidential administrations have invoked the privilege about 55 times since the U.S. Supreme Court enshrined the notion into law in a 1953 ruling and Sept. 11, 2001, according to research done by University of Texas, El Paso political science professor William Weaver.

Weaver’s research found that the Bush administration has used it 39 times since 2001 to unilaterally withhold court documents from the court system, the most of any president.

At the height of Cold War tensions between the United States and the former Soviet Union, U.S. presidents used the state secrets privilege six times from 1953 to 1976.

Weaver said the privilege has never been successfully challenged in court.

"Courts are really afraid to confront the executive branch on this issue," Weaver said.

Well, that assertion was a little out of date yesterday. As Ryan Singel reports, a court in Chicago did reject one of the executive branch’s sillier assertion of State Secrets back on March 25.

Eight Americans of south Asian and Middle Eastern descent who were repeatedly detained at the border for questioning will be able to learn if they are actually on the government’s terrorist watch list, a federal court in Illinois ruled last week, marking the first time that citizens have been able to learn whether they have been added to a sprawling and error-prone list used for screening at borders and traffic stops.

The government invoked the powerful state secrets privilege in the case, arguing that letting the plaintiffs know if they are or aren’t on the list would harm national security since that could alert them to the fact they have been under government scrutiny.

But since the government admits it has stopped the six men and two women more than 35 times, federal Magistrate Judge Sidney Schenkier of the United States Northern Illinois District Court dismissed that argument. Instead he found that the government "failed to establish that, under all the circumstances of this case, disclosure of that information would create a reasonable danger of jeopardizing national security."

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Apples and Oranges

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I wanted to link to Elsinora’s diary at DKos, where she describes John Ascroft’s attempts to avoid admitting that he sanctioned torture (the "me" in the dialogue is Elsinora herself).

ME: First off, Mr. Ashcroft, I’d like to apologize for the rudeness of some of my fellow students. It was uncalled for–we can disagree civilly, we don’t need that. (round of applause from the audience, and Ashcroft smiles) I have here in my hand two documents. One of them, you know, is the text of the United Nations Convention against Torture, which, point of interest, says nothing about "lasting physical damage"…

ASHCROFT: (interrupting) Do you have the Senate reservations to it?

ME: No, I don’t. Do you happen to know what they are?

ASHCROFT: (angrily) I don’t have them memorized, no. I don’t have time to go around memorizing random legal facts. I just don’t want these people in the audience to go away saying, "He was wrong, she had the proof right in her hand!" Because that’s not true. It’s a lie. If you don’t have the reservations, you don’t have anything. Now, if you want to bring them another time, we can talk, but…

ME: Actually, Mr. Ashcroft, my question was about this other document. (laughter and applause) This other document is a section from the judgment of the Tokyo War Tribunal. After WWII, the Tokyo Tribunal was basically the Nuremberg Trials for Japan. Many Japanese leaders were put on trial for war crimes and crimes against humanity, including torture. And among the tortures listed was the "water treatment," which we nowadays call waterboarding…

ASHCROFT: (interrupting) This is a speech, not a question. I don’t mind, but it’s not a question.

ME: It will be, sir, just give me a moment. The judgment describes this water treatment, and I quote, "the victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach." One man, Yukio Asano, was sentenced to fifteen years hard labor by the allies for waterboarding American troops to obtain information. Since Yukio Asano was trying to get information to help defend his country–exactly what you, Mr. Ashcroft, say is acceptible for Americans to do–do you believe that his sentence was unjust? (boisterous applause and shouts of "Good question!")

ASHCROFT: (angrily) Now, listen here. You’re comparing apples and oranges, apples and oranges. We don’t do anything like what you described.

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The Pentagon’s Media Analyst Domestic Psy-Ops Program: Is It Legal?

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By now you have probably heard that the New York Times has an in-depth piece by David Barstow out for Sunday’s edition on the use by the Pentagon of media "military experts" as propaganda conduits.

It would be nice to be able to say that the revelations in Barstow’s article are shocking, but they are not. Spin and propaganda have, from the outset, been more important to the Bush Administration than efficient and effective performance and truth. This already looks to be a big deal around the blogosphere, everybody will be discussing the general parameters of the story. Dave Neiwert serves up a dissection at FDL (and do click through his links here and here to his earlier pieces at Orcinus in 2004 on Bush Administration psy-op propaganda, they are excellent).

Beyond the face value of the NYT article, however, lurk some more interesting issues. Marcy has, as usual, immediately found one in relation to the spotty history of the NYT on Bushco propaganda, most notably in regard to Judith Miller and the case for the Iraq War (can you say "Sweet Judy Blew Lies"? I can). Here is mine; we know this Pentagon propaganda scheme is crass and loathsome, but is it legal?

Arguably, the answer is no, it is not legal; of course, as we have seen time and again, that is never an impediment to the Bush Administration. And, as with so many other Bushco ills, we have a template for analysis because they have made a pattern and practice of crossing the line of propriety in Read more →

Back to the Question of ABC’s Sources

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Remember that series of stories from ABC about Bush’s top advisors choreographing torture techniques with Bush’s explicit approval? I know it’s hard to remember those stories what with your rabid obsession with flag pins and whatnot.

As a reminder, I had wondered who from the Principals Committee might have served as a source for ABC. Well, the Guardian just published this (h/t Ellie).

The US’s most senior general was "hoodwinked" by top Bush administration officials determined to push through aggressive interrogation techniques for terror suspects held at Guantánamo Bay, the Guardian can reveal.

[snip]

• Myers believes he was a victim of "intrigue" by top lawyers at the department of justice, the office of the vice president, Dick Cheney, and Donald Rumsfeld’s defence department.

• Myers wrongly believed interrogation techniques had been taken from the army’s field manual.

The lawyers who pushed through the interrogation techniques – all of them political appointees – were Alberto Gonzales, David Addingon and William Haynes.

Others involved were Doug Feith, Rumsfeld’s undersecretary for policy, and Jay Bybee and John Yoo, two assistant attorney generals.

[snip]

The Bush administration has tried to explain away the ill-treatment of detainees at Guantánamo and the Abu Ghraib prison, in Baghdad, by blaming junior officials.

Sands establishes that pressure for the aggressive and cruel treatment of detainees came from the very top and was sanctioned by the most senior lawyers.

Myers, the most senior military officer of the most powerful country in the world, was one top official who did not understand the implications of what was being done.

Sands, who spent three hours with the former general, describes him as being "confused" about the decisions that were taken.

[snip]

"As we worked through the list of techniques, Myers became increasingly hesitant and troubled," Sands writes. "Haynes and Rumsfeld had been able to run rings around him."

Myers and his closest advisers were cut out of the decision-making process, so he was not given sufficient opportunity to object to measures he now says he strongly disapproved of.

He did not know that Bush administration officials were changing the rules allowing interrogation techniques, including the use of dogs, amounting to torture.

"We never authorised torture, we just didn’t, not what we would do," Myers said.

This piece certainly makes it clear that Myers would like to blame others for the torture regime in the US.

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Analogies for Yoo: The Merck Scandal

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There’s been more discussion of the appropriate analogy to use to determine whether or not John Yoo should–or could–be fired from Berkeley. But I wonder whether the incipient Vioxx scandal won’t offer us the best analogy. As the NYT reports, Merck appears to have sent out drafts of reports to professors to have them submit them for publication under their own name.

Combing through the documents, Dr. Ross and his colleagues unearthed internal Merck e-mail messages and documents about 96 journal publications, which included review articles and reports of clinical studies. While the Ross team said it was not necessarily raising questions about all 96 articles, it said that in many cases there was scant evidence that the recruited authors made substantive contributions.

One paper involved a study of Vioxx as a possible deterrent to Alzheimer’s progression.

The draft of the paper, dated August 2003, identified the lead writer as “External author?” But when it was published in 2005 in the journal Neuropsychopharmacology, the lead author was listed as Dr. Leon J. Thal, a well-known Alzheimer’s researcher at the University of California, San Diego. Dr. Thal was killed in an airplane crash last year.

The second author listed on the published Alzheimer’s paper, whose name had not been on the draft, was Dr. Ferris, the New York University professor. Dr. Ferris, reached by telephone Tuesday, said he had played an active role in the research and he was substantially involved in helping shape the final draft.

“It’s simply false that we didn’t contribute to the final publication,” Dr. Ferris said.

A third author, also not named on the initial draft, was Dr. Louis Kirby, currently the medical director for the company Provista Life Sciences. In an e-mail message on Tuesday, Dr. Kirby said that as a clinical investigator for the study he had enrolled more patients, 109, than any of the other researchers. He also said he made revisions to the final document.

“The fact that the draft was written by a Merck employee for later discussion by all the authors does not in and of itself constitute ghostwriting,” Dr. Kirby’s e-mail message said.

This story is just breaking. But I suspect that there will be substantial scrutiny of the scientists involved, or at least those still at research universities. And I suspect we’ll start seeing longer lists of professors who rented their name out in support of drug companies.

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Bush: The Country Is at War, Therefore We Do Not Torture

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While I wait patiently for the press to notice that George Bush admitted to instituting a regime of torture last Friday, I wanted to call your attention to one of Bush’s most famous statements purportedly denying that we torture. The statement came on November 7, 2005, just after Dana Priest’s Black Sites article appeared, and in the middle of Congress’ efforts to forbid torture. The statement came within days–if not hours–of the time when the CIA (supposedly working on its own) destroyed the evidence of torture.

The statement starkly follows the logic of John Yoo.

Q Mr. President, there has been a bit of an international outcry over reports of secret U.S. prisons in Europe for terrorism suspects. Will you let the Red Cross have access to them? And do you agree with Vice President Cheney that the CIA should be exempt from legislation to ban torture?

PRESIDENT BUSH: Our country is at war, and our government has the obligation to protect the American people. The executive branch has the obligation to protect the American people; the legislative branch has the obligation to protect the American people. And we are aggressively doing that. We are finding terrorists and bringing them to justice. We are gathering information about where the terrorists may be hiding. We are trying to disrupt their plots and plans. Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law. We do not torture.

And, therefore, we’re working with Congress to make sure that as we go forward, we make it possible — more possible to do our job. There’s an enemy that lurks and plots and plans, and wants to hurt America again. And so, you bet, we’ll aggressively pursue them. But we will do so under the law. And that’s why you’re seeing members of my administration go and brief the Congress. We want to work together in this matter. We — all of us have an obligation, and it’s a solemn obligation and a solemn responsibility. And I’m confident that when people see the facts, that they’ll recognize that we’ve — they’ve got more work to do, and that we must protect ourselves in a way that is lawful.

Note the logic of the statement:

  1. Our country is at war
  2. The executive branch has the obligation to protect the American people
  3. Read more →

The WaPo Did Not Scoop This Story in 2005

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I’m still waiting for the media to start covering the news that a head of state–the head of our state–just admitted to approving torture. As of 9:30, only UPI has joined ABC and the WaPo in noting this story–which is about all they do, note it (though the foreign press is beginning to take note). For its part, ABC seems to have gotten bored with breaking the news that the President authorized his top aides to set up a torture regime–by 5PM yesterday they had removed the story from their Top Headlines (but worry not, you can still find the story of Sam, the dog that invited himself to his owner’s funeral, among the Top Headlines).

While we’re waiting for what I’m certain will be a barrage of stories covering the fact that the President thinks it’s okay to torture so long as John Yoo says so, I thought I’d look at the WaPo’s claim that they had already covered this story. I mean, I’m glad that the WaPo saw fit to cover the story–it even made it onto page A3; I should be glad it was not relegated to Lifestyles. But it’s clear the WaPo is missing what’s new with this story.

In its story, the WaPo claims it covered this in January 2005.

The Washington Post first reported in January 2005 that proposed CIA interrogation techniques were discussed at several White House meetings. A principal briefer at the meetings was John Yoo, who was then a senior Justice Department attorney and the author of a draft memo explaining the legal justification for the classified techniques the CIA sought to employ.

The Post reported that the attendees at one or more of these sessions included then-presidential counsel Alberto R. Gonzales, then-Attorney General John D. Ashcroft, then-Defense Department general counsel William J. Haynes II, then-National Security Council legal adviser John B. Bellinger III, CIA counsel John A. Rizzo, and David S. Addington, then-counsel to Cheney.

The Post reported that the methods discussed included open-handed slapping, the threat of live burial and waterboarding. The threat of live burial was rejected, according to an official familiar with the meetings.

State Department officials and military lawyers were intentionally excluded from these deliberations, officials said.

Gonzales and his staff had no reservations about the proposed interrogation methods and did not suggest major changes, two officials involved in the deliberations said.

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Does the Former Holy Inquisitor Refuse to Eat with Torturers?

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I have no idea whether Sara’s speculation is correct–that Pope Benedict just declined the invite to the State dinner Bush and Laura are throwing for him because he doesn’t want to break bread with a torturer.

Guess who’s not coming to dinner? Pope Benedict XVI.

President Bush and his wife, Laura, will host a White House dinner in honor of the pontiff Wednesday evening. U.S. Catholic leaders from around the nation will attend. The menu will offer Bavarian-style food in recognition of the pope’s German heritage. It’s even the pope’s 81st birthday. But he won’t be there.

But I sure hope that the media, in the midst of its mad crush to cover the story that the President has admitted he sanctioned torture, will find out.

Consider the optics of such a dinner, after all. Pope Benedict was, until a few years ago, in charge of the Congregation of the Doctrine of the Faith. That’s the office formerly known as "the Inquisition." And the Inquisition, of course, is famous for a number of things, just about all of them unpleasant. Lately, though, the Inquisition has gotten a lot of bad press for inventing water-boarding. There’s a direct tie between the reprehensible actions of the Catholic Church during one of the ugliest moments and what George Bush just admitted–almost flippantly–to have personally approved.

Now, it’s possible that, even if Benedict is blowing off dinner as a protest, that it doesn’t relate to Bush’s admission that he green-lighted water-boarding. The Catholic Church has been critical of a number of things Bush has done–most notably, starting an illegal war in Iraq.

But I can sure imagine that Pope Benedict–who himself gets a lot of bad press for his past as the arbiter of Catholic doctrine–would not want to be associated with a President just after he admits to approving of methods recalling the Inquisition.

Update: Here’s Sara at more length:

Well, it was an interesting week. The German Chancellor, The British Prime Minister and the Secretary General of the UN, among others, found that they had schedule conflicts, and would not be able to attend the opening of the Olympics in Beijing this summer. Bush apparently still intends to attend, and all the presidential candidates are hot to offer him advice regarding formally standing up for Human Rights.

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Bush OKs Torture. Media Yawns.

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So ABC News had an exclusive interview and got a pretty important scoop last night. You may have heard about it: George Bush, a man who took an oath to support and defend the Constitution, admitted (with zero shame) that he approved of the meetings at which his top advisors discussed and approved the excruciating details of torture.

And, yes, I’m aware our national security team met on this issue. And I approved.

The President just admitted that he approved torture.

And thus far at least, no one seems to give a damn. As of 9AM, the NYT published no news of Bush’s admission. The WaPo placed a story on A3 (stating that they had already reported this, even though they hadn’t reported this). ABC, the outlet that got the damn scoop, places the story fourth on its list of stories, behind Obama and Indiana and Hillary telling Bill to "butt out," with the main picture on the front page cycling through such critical stories as a dog who invited himself to his owner’s funeral. Oh–and do you think maybe there’s a connection between the stories of teens beating each other and the President, approving of torture?

This is an exclusive with the President who, after lying about torture for four years, just admitted that he knew and approved of the torture! And yet you place it there among the cute puppy stories?

As for the rest of the news media, thus far, crickets. Though kudos to Randy Scholfield of the Wichita Eagle who–without yet having the news that the Principals did not really insulate Bush from these discussions–states, "Nor will history judge the American people kindly if we look the other way."

I understand Bush’s approval of torture is not news, as in, something the beltway insiders didn’t already know. I agree with Bush, sort of, that this is not startling. At the same time, it appalls me that the President of the United States can admit to approving torture and yet no one finds that unusual, that no one is interrupting existing programming to announce this, that even ABC treats this as one story among the cute puppy and Hill and Bill stories. At the very least, try to muster some outrage that the President has been lying about torture for four years, could ya?

Remember Watergate? Remember "what did the President know, and when did he know it?" Read more →

Bush to Raddatz: “So?”

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A couple of weeks ago, Dick Cheney interviewed with ABC’s Martha Raddatz, and dismissed the opinion of millions of Americans with a snotty, "So?"

CHENEY: On the security front, I think there’s a general consensus that we’ve made major progress, that the surge has worked. That’s been a major success.

RADDATZ: Two-third of Americans say it’s not worth fighting.

CHENEY: So? [emphasis TP’s]

Tonight, President Bush did a Friday night news dump interview with Raddatz where he effectively said precisely the same thing–only this time about torture (h/t Scarecrow).

President Bush says he knew his top national security advisors discussed and approved specific details about how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, according to an exclusive interview with ABC News Friday.

"Well, we started to connect the dots, in order to protect the American people." Bush told ABC News White House correspondent Martha Raddatz. "And, yes, I’m aware our national security team met on this issue. And I approved."

[snip]

In his interview with ABC News, Bush said the ABC report about the Principals’ involvement was not so "startling."

[snip]

In the interview with ABC News Friday, Bush defended the waterboarding technique used against KSM.

"We had legal opinions that enabled us to do it," Bush said. "And, no, I didn’t have any problem at all trying to find out what Khalid Sheikh Mohammed knew."

The President said, "I think it’s very important for the American people to understand who Khalid Sheikh Mohammed was. He was the person who ordered the suicide attack — I mean, the 9/11 attacks."

"So?!?!?!" You’ve never seen a United States President order torture from the Oval Office before, you wuss? Well, get over it. It’s not so startling.

No, President Bush, it’s not startling at all. I understand you don’t have any problem authorizing the water-boarding of KSM.

But I would imagine your efforts to stage a show trial of Khalid Sheikh Mohammed just got a whole lot more difficult.