Digby's Hullabaloo Posts

Professional Courtesy

by digby

In reading the Bybee torture memo, you see that he refers constantly to the “professionals” and the medical personnel who oversaw the interrogations. He uses the fact that American military personnel who had undergone SERE training had suffered little lasting damage due to their training in these techniques. (No metion of the logical conclusion that American military personnel knew that the people who were inflicting the torture were only doing it for demonstration purposes and therefore had a completely different psychological reaction.)

Names have been redacted and much of the advice Bybee relies upon is not revealed with any specificity. But rely on it he does, through the entire opinion. Indeed, when you read this classic CIA CYA memo, you get the clear feeling that Bybee was trying to cover his own ass by constantly referring to these “experts” who stipulated that Zubaydah was in good health (despite the fact that the man had almost died of gunshot wounds just a few months before), was completely in control (except for being a schizophrenic) and was handling his interrogation with equanimity (by compulsively masturbating.)

One has to assume that at least some of the CIA personnel the Obama administration promised not to prosecute today were among those to whom Bybee refers. So who are they?

There is actually quite a bit of information out there about how this whole thing happened so it’s not hard to figure it out. First, it’s important to recall that the Zubaydah case was special for a number of reasons, the most important of which was that it spelled the end of the battle between the FBI and the CIA as to how to properly interrogate Al Qaeda prisoners. The FBI believed that that the best way to get actionable info from these people was to use approved interrogation techniques (which in Zubaydah’s case was quite effective.) But the CIA objected, insisting that he knew more than he was saying and that only by using torture could they get it out of him.

Jane Meyer published many of the details about the people involved and the program they used several years ago in the New Yorker:

The C.I.A. program’s first important detainee was Abu Zubaydah, a top Al Qaeda operative, who was captured by Pakistani forces in March of 2002. Lacking in-house specialists on interrogation, the agency hired a group of outside contractors, who implemented a regime of techniques that one well-informed former adviser to the American intelligence community described as “a ‘Clockwork Orange’ kind of approach.” The experts were retired military psychologists, and their backgrounds were in training Special Forces soldiers how to survive torture, should they ever be captured by enemy states. The program, known as SERE—an acronym for Survival, Evasion, Resistance, and Escape—was created at the end of the Korean War. It subjected trainees to simulated torture, including waterboarding (simulated drowning), sleep deprivation, isolation, exposure to temperature extremes, enclosure in tiny spaces, bombardment with agonizing sounds, and religious and sexual humiliation. The SERE program was designed strictly for defense against torture regimes, but the C.I.A.’s new team used its expertise to help interrogators inflict abuse. “They were very arrogant, and pro-torture,” a European official knowledgeable about the program said. “They sought to render the detainees vulnerable—to break down all of their senses. It takes a psychologist trained in this to understand these rupturing experiences.”

The use of psychologists was also considered a way for C.I.A. officials to skirt measures such as the Convention Against Torture. The former adviser to the intelligence community said, “Clearly, some senior people felt they needed a theory to justify what they were doing. You can’t just say, ‘We want to do what Egypt’s doing.’ When the lawyers asked what their basis was, they could say, ‘We have Ph.D.s who have these theories.’ ” He said that, inside the C.I.A., where a number of scientists work, there was strong internal opposition to the new techniques. “Behavioral scientists said, ‘Don’t even think about this!’ They thought officers could be prosecuted.”

Nevertheless, the SERE experts’ theories were apparently put into practice with Zubaydah’s interrogation. Zubaydah told the Red Cross that he was not only waterboarded, as has been previously reported; he was also kept for a prolonged period in a cage, known as a “dog box,” which was so small that he could not stand. According to an eyewitness, one psychologist advising on the treatment of Zubaydah, James Mitchell, argued that he needed to be reduced to a state of “learned helplessness.” (Mitchell disputes this characterization.)

Steve Kleinman, a reserve Air Force colonel and an experienced interrogator who has known Mitchell professionally for years, said that “learned helplessness was his whole paradigm.” Mitchell, he said, “draws a diagram showing what he says is the whole cycle. It starts with isolation. Then they eliminate the prisoners’ ability to forecast the future—when their next meal is, when they can go to the bathroom. It creates dread and dependency. It was the K.G.B. model. But the K.G.B. used it to get people who had turned against the state to confess falsely. The K.G.B. wasn’t after intelligence.”

As the C.I.A. captured and interrogated other Al Qaeda figures, it established a protocol of psychological coercion. The program tied together many strands of the agency’s secret history of Cold War-era experiments in behavioral science. (In June, the C.I.A. declassified long-held secret documents known as the Family Jewels, which shed light on C.I.A. drug experiments on rats and monkeys, and on the infamous case of Frank R. Olson, an agency employee who leaped to his death from a hotel window in 1953, nine days after he was unwittingly drugged with LSD.) The C.I.A.’s most useful research focussed on the surprisingly powerful effects of psychological manipulations, such as extreme sensory deprivation. According to Alfred McCoy, a history professor at the University of Wisconsin, in Madison, who has written a history of the C.I.A.’s experiments in coercing subjects, the agency learned that “if subjects are confined without light, odors, sound, or any fixed references of time and place, very deep breakdowns can be provoked.”

Agency scientists found that in just a few hours some subjects suspended in water tanks—or confined in isolated rooms wearing blacked-out goggles and earmuffs—regressed to semi-psychotic states. Moreover, McCoy said, detainees become so desperate for human interaction that “they bond with the interrogator like a father, or like a drowning man having a lifesaver thrown at him. If you deprive people of all their senses, they’ll turn to you like their daddy.” McCoy added that “after the Cold War we put away those tools. There was bipartisan reform. We backed away from those dark days. Then, under the pressure of the war on terror, they didn’t just bring back the old psychological techniques—they perfected them.”

The C.I.A.’s interrogation program is remarkable for its mechanistic aura. “It’s one of the most sophisticated, refined programs of torture ever,” an outside expert familiar with the protocol said. “At every stage, there was a rigid attention to detail. Procedure was adhered to almost to the letter. There was top-down quality control, and such a set routine that you get to the point where you know what each detainee is going to say, because you’ve heard it before. It was almost automated. People were utterly dehumanized. People fell apart. It was the intentional and systematic infliction of great suffering masquerading as a legal process. It is just chilling.”

Mayer names the two senior psychologists involved in the reverse engineering of the SERE program in her book The Dark Side: James Mitchell and John Bruce Jessen whom she described as ”good looking, clean-cut, polite Mormons.”

KGB torture techniques are what the Bybee memo legalized — at the behest of retired CIA “psychologists.” And they recommended it over the objections of trained FBI interrogators and behavioral scientists in the CIA itself. Those were the experts he relied upon to assure him that Zubaydah was a seasoned terrorist warrior who could only be “broken” by using torture. He ignored plenty of others who said otherwise.

We know now that the information that was gleaned from Zubaydah under torture was completely useless. That’s what that torture program is designed to do, after all — elicit false confessions. And it cost this country millions and millions of dollars and uselessly scared the hell out of people:

Ron Susskind, who also wrote extensively about Zubaydah in The One Percent Solution and wrote this in TIME Magazine when Zubaydah was transferred to Guantanamo:

What is widely known inside the Administration is that once we caught our first decent-size fish–Abu Zubaydah, in March 2002–we used him as an experiment in righteous brutality that in the end produced very little. His interrogation, according to those overseeing it, yielded little from threats and torture. He named countless targets inside the U.S. to stop the pain, all of them immaterial. Indeed, think back to the sudden slew of alerts in the spring and summer of 2002 about attacks on apartment buildings, banks, shopping malls and, of course, nuclear plants. What little of value he did tell us came largely from a more sophisticated approach, using his religious belief in predestination to convince him he miraculously survived his arrest (he was shot three times and nursed to health by U.S. doctors) for a reason: to help the other side. It’s that strange conviction that generated the few, modest disclosures of use to the U.S. Complicating matters is that Zubaydah was more a facilitator–a glorified al-Qaeda travel agent–than the operational master the Administration trumpeted him as. Also, he suffers from multiple personalities. His diary, which the government refuses to release, is written in three voices over 10 years and is filled with page after page of quotidian nonsense about housekeeping, food and types of tea.

So, it’s not just a matter of morality, although this program was so immoral and depraved as to be nearly unbelievable. It was also excessively counterproductive in almost every way, to the point where I’m convinced that the US can probably never get its reputation back and will be seen as a brutal, threatening giant among many people around the world who never thought that before.

When Bybee was searching for legal justifications to do what the CIA wanted to do (and probably Cheney and the rest as well) here’s what the man at the top was saying when he was being briefed about the torture of Zubaydah:

“I said he was important,” Bush reportedly told Tenet at one of their daily meetings. “You’re not going to let me lose face on this, are you?” “No sir, Mr. President,” Tenet replied. Bush “was fixated on how to get Zubaydah to tell us the truth,” Suskind writes, and he asked one briefer, “Do some of these harsh methods really work?” Interrogators did their best to find out, Suskind reports.

James Risen described this scene in his book State of War:

Risen makes much of an anecdote he heard from one of his trusty White House sources about a conversation in 2002 between then-CIA director George Tenet and George Bush after the capture of Abu Zubaydah in Pakistan, a known and high-ranking al Qaeda operative. Tenet was briefing Bush on the matter, explaining that not much intelligence had been pulled from Zubaydah in the early stages because he had been put on pain medication to deal with the injuries he sustained during capture. Bush asked Tenet: “Who authorized putting him on pain medication?” Risen speculates whether Bush was “implicitly encouraging” Tenet to order the harsh treatment of a prisoner “without the paper trail that would have come from a written presidential authorization.” Risen writes, “If so, this episode offers the most direct link yet between Bush and the harsh treatment of prisoners by both the CIA and the U.S. military.”Risen does say that sources close to Tenet have challenged this account, but spends pages after writing about the significance of Zubaydah’s interrogation as “the critical precedent for the future handling of prisoners both in the global war on terror and in the war in Iraq.” Risen writes, “The harsh interrogation methods the CIA used on Zubaydah prompted the first wide-ranging and legal policy review establishing the procedures to be followed in the detention of future detainees. ‘Abu Zubaydah’s capture triggered everything,’ explained a CIA source.” Risen describes a turf war process that eventually had the CIA in charge of all the high-profile al Qaeda prisoners.

And everyone else at the top knew exactly what they were doing too. Mark Danner’s recent mind-blowing story on the Red Cross report backed up this earlier bombshell:

Shortly after Abu Zubaydah was captured, according to ABC News, CIA officers “briefed high-level officials in the National Security Council’s Principals Committee,” including Vice President Dick Cheney, National Security Adviser Condoleezza Rice, and Attorney General John Ashcroft, who “then signed off on the [interrogation] plan.” At the time, the spring and summer of 2002, the administration was devising what some referred to as a “golden shield” from the Justice Department -— the legal rationale that was embodied in the infamous “torture memorandum,” written by John Yoo and signed by Jay Bybee in August 2002… Still, Director of Central Intelligence George Tenet regularly brought directly to the attention of the highest officials of the government specific procedures to be used on specific detainees —- “whether they would be slapped, pushed, deprived of sleep or subject to simulated drowning” — in order to seek reassurance that they were legal. According to the ABC report, the briefings of principals were so detailed and frequent that “some of the interrogation sessions were almost choreographed.” At one such meeting, John Ashcroft, then attorney general, reportedly demanded of his colleagues, “Why are we talking about this in the White House? History will not judge this kindly.”

They are all war criminals, from the nice looking Mormon sadists who call themselves doctors, to the twisted bureaucrats in the Justice Department who call themselves lawyers, to the top leadership of the Bush administration who sat there and watched choreographed torture sessions in the White House and have the utter gall to call themselves human. They all knew that what they were doing was repulsive and immoral. That’s why went to such lengths to ensure that all of it was approved with all the is dotted and all the ts crossed all the way to the very top and back down again. They all implicated each other.

Apparently, they assumed that nobody would ever prosecute even one of these very important, upstanding members of their professions for horrific crimes such as these because if onw went down they would all go down. And apparently they were right.

Update: Oh, and let’s be sure to add Steven Bradbury to the list. He’s just as much of a sadistic madman as Bybee, Yoo and the rest of them — and his opinions were in effect until he left office three months ago. More on his memos tomorrow. Warning: they will make you sick.

And no reflection or retribution is not the answer. Prosecution is the answer. If these aren’t criminal acts, nothing is. It’s the stuff of nightmares.

Update: Apparently we are being disrespectful of the military to try war criminals because it’s exactly the same as calling average Vietnam War Vets baby killers. At least according to our new Director of National Intelligence. William Calley was a hero I guess.

Oh, and while it may seem terrible and disturbing to read these things in the bright light of 2009, we need to remember that our country went crazy after 9/11. All the way up until May of 2005, when the Bradbury memos were written.

How It’s Done

by digby

Does everyone remember this?

The Washington Post, January 3rd, 1994

Senate Minority Leader Robert J. Dole (R-Kan.) and House Minority Whip Newt Gingrich (R-Ga.) yesterday urged Attorney General Janet Reno to appoint an independent counsel to investigate any involvement by President Clinton with a failed Arkansas savings and loan firm and a real estate venture in the state.

There was a time when the Republican congress, in the majority and in minority, was calling for independent counsels every five minutes for such threats to the nation as firing an white house employee and personal real estate dealings that took place years before the president was elected. (not to mention personal indiscretions.) The right wing noise machine would go crazy and the opposition leaders in congress would raise holy hell until the president had no choice but to ask the Attorney General to name an independent counsel just to shut everyone up for a while.

(The Independent counsel statute was created so the executive branch wouldn’t have to investigate itself, the very definition of conflict of interest. After three presidencies, the statute was allowed to die — mostly because the Republicans proved that they would use it as a retributional nuclear political weapon if they had the chance.)

In the last administration, there was enough of an outcry over the leak of a CIA operative that even the Bush administration had to have his AG appoint a special prosecutor. They appointed a non-partisan professional who managed to keep the investigation and trial buttoned up, thus showing that the right special prosecutor could run a political case without joining the partisan mudfight. Although the usual legal wingnuts tried to persuade people that the Fitzgerald investigation was a Ken Starr Chamber, everyone knew it wasn’t, and it proved that it could be done if the prosecutor wasn’t an ideologue and a tool.

All of these cases were brought about by public and political pressure. It occurs to me that this is the only way it can happen in our broken political system — that a president never willingly investigates itself, of course, but also never wants to investigate its predecessor either (the Democrats usually for fear of starting an endless vendetta, the Republicans usually for fear of setting a precedent.) They must be made to do it.

With respect to the Bush torture regime, it’s obviously very difficult for the administration to take on the intelligence community unless there is a large public constituency demanding action. It’s risky on all the levels mentioned above but also risks alienating a very important bureaucracy with a lot of very special power. I recognize that it’s not easy, especially for a Democrat, although I think it’s so important to the future security of the nation that I would have hoped the president would use some of his political capital to prove that the United States is a country of laws not men.

However, I have to wonder if by releasing the memos they aren’t at least obliquely asking for the public to “make” them do it. They could have kept them secret, after all. If there were significant public pressure as well as pressure from congress, they would have enough cover to launch an investigation with the assurance they aren’t going to go the Bad Apple route.

I obviously have no idea whether they would welcome such a thing. But we should do it anyway. I know that if the shoe were on the other foot, the right would crank up the noise machine immediately and gin up a hissy fit of massive proportions over something like this, creating a sense of building crisis that the media would then use to put pressure on the president. It’s how they make these things happen. (I think where this breaks down on our side is the lack of working relationships with congressional leaders, many of whom still see the base as disruptive and ignorant. That’s going to take some long term work to change.)

But we must try. These memos are so disgustingly immoral and thus so dangerous to our future security that we can’t just let it go. FDL is first out of the box with a petition to Attorney General Holder to appoint a special prosecutor. It’s a start. I also think it would be a good idea to launch an “Impeach the Torture Judge” movement against Jay Bybee and encourage the congress to do some serious investigations, not show hearings so they can blather on about how much they all respect each other. There’s no reason to only go at this from one angle.

But whatever happens, it seems to me that any official sanctions for torture will not happen without systematic grassroots action. They don’t investigate their own unless the people make it impossible for them not to. It’s just how it works.

Greenwald put it this way:

Obama did the right thing by releasing these memos, providing all the information and impetus the citizenry should need to demand investigations and prosecutions. But it is up to citizens to demand that the rule of law be applied.

The ACLU is also calling for a Special Prosecutor.

You can sign FDLs petition here.

Depraved Judgment

by digby

First of all, good for Obama for releasing these OLC memos. I know that he was under tremendous pressure from the intelligence community not to do it and it was an act of principle for him to defy them. Like dday, I reamin very, very disappointed that he refuses pursue charges against those who ordered these atrocities, but I am grateful that he’s at least releasing this information.

Having said that, and only having read through the Bybee memo (pdf) authorizing the torture of Abu Zubayda, I feel like vomiting right now. This is the very definition of the banality of evil — a dry, legalistic series of justifications for acts of barbaric cruelty.

The phrase “banality of evil” is very overused, I realized. But this is a case where it applies. Bybee writes as just another corporate-style lawyer finding a legal rationale for his client to do what he wants to do. Happens every day, no big deal. Except that he’s writing memos justifying using techniques that have been known to be torture since at least the Spanish Inquisition.

Oh sure, he says it needs to be “medically supervised” and performed by only those who are “qualified” which makes it all bureaucratically neat and tidy. And he consistently asserts the twisted logic that because American military people had come through the SERE training without suffering any lasting harm, that prisoners would also suffer no lasting harm, which not only makes no sense, but gives him a quasi-legal and moral justification for perpetrating despicable acts. Everything is very sterile and very controlled. And that’s what makes this opinion so chilling.

After the nonsensical use of the Hitler imagery at yesterday’s events, I was hesitant to bring up Arendt again, who after all, most famously used her thesis observing the trial of Adolph Eichman. But reading a dry legal brief offering the opinion on the ways one can put a prisoner in a small dark box with an insect, without breaking any laws inexorably draws you to her work:

He operated unthinkingly, following orders, efficiently carrying them out, with no consideration of their effects upon those he targeted. The human dimension of these activities were not entertained, so the extermination of the Jews became indistinguishable from any other bureaucratically assigned and discharged responsibility for Eichmann and his cohorts.

Arendt concluded that Eichmann was constitutively incapable of exercising the kind of judgment that would have made his victims’ suffering real or apparent for him. It was not the presence of hatred that enabled Eichmann to perpetrate the genocide, but the absence of the imaginative capacities that would have made the human and moral dimensions of his activities tangible for him. Eichmann failed to exercise his capacity of thinking, of having an internal dialogue with himself, which would have permitted self-awareness of the evil nature of his deeds. This amounted to a failure to use self-reflection as a basis for judgment, the faculty that would have required Eichmann to exercise his imagination so as to contemplate the nature of his deeds from the experiential standpoint of his victims. This connection between the complicity with political evil and the failure of thinking and judgment inspired the last phase of Arendt’s work, which sought to explicate the nature of these faculties and their constitutive role for politically and morally responsible choices.

Bybee and Yoo and Addington and all those lawyers in the Bush administration who worked on this cannot actually be explained in quite this way. They obviously knew they were legally exposed, they researched the issue and in the course of that must have read the reasoning behind the laws they were seeking to circumvent. They weren’t mere functionaries carrying out orders, as you might be able to argue the actual torturers were. (Which also wasn’t considered adequate at Nuremberg, but never mind… )These were lawyers who were actively engaged in creating a legal rationale for something they clearly understood was controversial and which required them to think about what they were doing on a deeper level than someone like Eichman.

The psychology may have been the same — they were just doing their jobs. But the act of doing their jobs required a consciousness that goes beyond the average bureaucrat, even the average Nazi bureaucrat ca. 1942. They thought it through.

The man who wrote that memo now sits on the Ninth Circuit Court of Appeals and his conscious judgment is at issue every single day. This country should not have anyone who authorized twisted and depraved behaviors sitting in judgment of anyone. If Obama refuses to take action against this man, the legal profession should do it for him and disbar him. And if the congress can impeach someone over illicit oral sex, they can surely impeach a federal judge for authorizing torture.

It’s bad enough that we have war criminals running free. Having one of them sitting on one of the highest courts in the land is mind-boggling.

There will undoubtedly be more on this as we read through the rest of the memos.

Update: Andrew Sullivan makes the Arendt connection too,as will many others I’m sure.

Greenwald (see update) has delved into the Bradbury memos from 2005 and they may even be more shocking when you consider that Bradbury remained in the DOJ until just three months ago.

Update II: Point of clarification. Obama’s memo today specifically said that they would not prosecute any CIA operatives who were operating on the basis of these memos. I’m not all that snaguine about that, but my main objection has always been to Obama’s refusing to investigate and, if the evidence is there, try those who ordered the torture. He has reiterated to day that he doesn’t want to look backwards, so I don’t expect that he has changed his mind about an independent counsel to investigate the Bush adminstration for torture. but his memo today didn’t specifically address that.

Obama’s Decision Point, Explained

by dday

Not to turn Hullabaloo into a breaking news blog, but Marc Ambinder reports that the only redactions in the memos will be of specific names of CIA officers involved in the interrogation. As these are OLC memos, I’m struggling to understand why specific CIA officers would be identified in them, but we won’t know their names. And they will not be prosecuted for their actions.

I might as well post the entire Presidential statement on the release of the memos.

The Department of Justice will today release certain memos issued by the Office of Legal Counsel between 2002 and 2005 as part of an ongoing court case. These memos speak to techniques that were used in the interrogation of terrorism suspects during that period, and their release is required by the rule of law.

My judgment on the content of these memos is a matter of record. In one of my very first acts as President, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer. Enlisting our values in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past.

But that is not what compelled the release of these legal documents today. While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

Going forward, it is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security. This is an extraordinarily important responsibility of the presidency, and it is one that I will carry out assertively irrespective of any political concern. Consequently, the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.

Long story short – the release of the memos is quite an important step. The focus should never be on low-level functionaries who carried out these acts, but those higher up the chain who directed and authorized them. I didn’t want to see a “few bad apples” roundup of the Lynndie England’s of the world and then a washing of the hands of the whole enterprise. Of course, the President says very strongly that “nothing will be gained by spending our time and energy laying blame for the past.” Which the Broderist apologists will just love, and which we knew would be his decision anyway.

It’s a mistake, in my view. But the release of virtually unredacted evidence of our shameful past is also important and should not be overlooked.

…I generally agree with Glennzilla’s take:

I’ll have more details as soon as these memos are available. One can certainly criticize Obama for vowing that no CIA officials will be prosecuted if they followed DOJ memos (though that vow, notably, does not extend to Bush officials), but — assuming the reports about redactions are correct — there is no grounds for criticizing Obama here and substantial grounds for praising him.

…the memos are here. Reading them now…

…it goes without saying that indemnifying the CIA personnel who committed the torture because they were acting under what they believed to be a legal basis violates the Nuremberg principles.

Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

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Obama’s Decision Point Made

by dday

I was going to update the last post, but this is enough information to warrant a new one. The New York Times reports that the President will release the torture memos.

After a tense internal debate, the Obama administration this afternoon will make public a number of detailed memos describing the harsh interrogation techniques used by the Central Intelligence Agency against al Qaeda suspects in secret overseas prisons.

The interrogation methods were among the Bush administration’s most closely guarded secrets, and today’s release will be the most comprehensive public accounting to date of the interrogation program that some senior Obama administration officials have said used illegal torture.

This is great, but there isn’t enough information here to explain whether key elements of the memos would be redacted. The Wall Street Journal says:

WASHINGTON — The Obama administration is expected to release some operational details of a Central Intelligence Agency interrogation program and its legal rationale, while seeking to keep secret the names of detainees and the way techniques were applied to particular prisoners, two officials familiar with the matter said Wednesday.

An announcement is expected Thursday on the release of memorandums in which Department of Justice lawyers gave legal guidance on CIA interrogations. During a fierce debate, CIA officials have argued for keeping sensitive information secret, while Attorney General Eric Holder and other Obama administration lawyers have favored a full release.

Administration lawyers on Wednesday were still deliberating what portions of three memos would be released. The two officials said the administration plans to propose redacting parts of the memos. In addition to the prisoner names, certain operational details of interrogations are expected to stay secret, they said.

As is typical for Obama, he split the difference in the debate and went right down the middle. He will release the memos with some operational details, but will redact others as well as “the way techniques were applied to particular prisoners.”

This is kind of silly. We have a Red Cross report detailing how these techniques were applied to particular prisoners. And the operational details in the memos do not describe intelligence operations, but what the OLC considered legal for use on prisoners. The overall effect would be to shield the framers of these opinions and their superiors from the actions themselves.

We’ll have to wait and see just what is redacted. But this is basically a split-the-difference approach.

…Andrea Mitchell had former CIA Director and NSA head Michael Hayden (who, shockingly, is now with something called “The Chertoff Group”) on, and he basically said that the American people don’t have the right to know what their government does in their name, and thus the memos shouldn’t be released at all. Then, on the NSA “overcollection” case, he maintained that “the NSA follows the law” and just like journalists, they can’t be right 100% of the time and they do the best they can. Then he claimed that the NSA self-reported the problem, when the NYT article said it came up in a Justice Department review.

Just so you know what a defense of evil sounds like. The interview was amazing.

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Obama’s Decision Point

by dday

The Spanish Attorney General has recommended that the court drop its case against six Bush-era officials for their role in authorizing and directing torture at Guantanamo Bay, for one main reason:

If alleged torture at Guantanamo is going to be investigated at all, that should be done first in the United States, so that the former American officials would have a chance to defend themselves there, Conde-Pumpido added, according to his press chief, Fernando Noya.

It’s entirely possible that the case will go forward (prosecutors objected to this court’s investigation of Augusto Pinochet, but it went ahead anyway), but the Attorney General makes a salient point. American prosecutors should investigate American crimes, and violations of treaties to which America is a signatory. And today, President Obama can show what side he lines up on with respect to that question.

Today is the most significant test yet determining the sincerity of Barack Obama’s commitment to restore the Constitution, transparency and the rule of law. After seeking and obtaining multiple extensions of the deadline, today is the final deadline for the Obama DOJ to respond to the ACLU’s FOIA demand for the release of four key Bush DOJ memos which authorized specific torture techniques that have long been punished (including by the U.S.) as war crimes. Today, Obama will either (a) disclose these documents to the public or (b) continue to suppress them — either by claiming the right to keep them concealed entirely or, more likely, redacting the most significant parts before releasing them.

The most recent information on this suggests that Obama was siding with the CIA to redact information from the memos revealing the most graphic tactics used in interrogation. In particular, there is one technique whose release concerns the Administration.

Among the details in the still-classified memos is approval for a technique in which a prisoner’s head could be struck against a wall as long as the head was being held and the force of the blow was controlled by the interrogator, according to people familiar with the memos. Another approved tactic was waterboarding, or simulated drowning.

A decision to keep secret key parts of the three 2005 memos outlining legal guidance on CIA interrogations would anger some Obama supporters who have pushed him to unveil now-abandoned Bush-era tactics. It would also go against the views of Attorney General Eric Holder and White House Counsel Greg Craig, people familiar with the matter said.

Top CIA officials have spoken out strongly against a full release, saying it would undermine the agency’s credibility with foreign intelligence services and hurt the agency’s work force, people involved in the discussions said. However, Director of National Intelligence Dennis Blair favors releasing the information, current and former senior administration officials said […]

Intelligence officials also believe that making the techniques public would give al Qaeda a propaganda tool just as the administration is stepping up its fight against the terrorist group in Afghanistan and Pakistan. Some former administration officials have also argued that releasing all the memos could help terrorists train to endure the most extreme interrogation techniques.

Marcy Wheeler explained that this is nonsensical, because it’s already been disclosed by the ICRC report, meaning that whatever propaganda value Al Qaeda could glean from such disclosure already exists.

And Greenwald notes that these are legal documents, from the Office of Legal Counsel, and not intelligence documents that would compromise sources and methods. These were the secret laws under which the United States was governed in the Bush era with respect to their view of the laws on interrogation techniques, and failure to disclose them would essentially means that Obama agrees with the opinion that the United States executive branch should govern itself secretly and outside the purview of the people who hired him.

This renders blatantly frivolous the Bush-mimicking excuse that will almost certainly be offered in the event of substantial redactions today (and which anonymous Obama officials previewed yesterday in the WSJ): namely, that non-disclosure is compelled by the Safety of the American People. Aside from the fact that the “enhanced interrogation techniques” which these memos authorized are supposedly barred from use by President Obama’s own Executive Order — thus rendering any national security claims for concealment of “operational details” absurd on their face — how can it be the case that legal opinions about what is and is not legal in the view of the Government should be kept secret? To justify the non-disclosure of these memos is to affirm the right of the U.S. Government to operate under secret laws — about the most anti-democratic state of affairs imaginable.

Andrew Sullivan summarizes the decision today.

If Obama, for some reason, decides to prevent us from seeing exactly what was done then he will achieve only one thing: he will tell the world that the US has indeed authorized and practised war crimes while simultaneously telling the world that America will not be accountable for it.

He will betray all of us who supported him to restore the rule of law. He will, in fact, merely confirm the worst fears of what was actually done while making himself an accomplice to protecting the war criminals who did it.

And indeed, we will have to assume, in the absence of this disclosure, that at least some of these techniques are still going on. The fact that a Guantanamo detainee recently called Al Jazeera with his telephone privilege to complain of abuse at the hands of his captors offers a glimpse into the current situation at Guantanamo. Without full disclosure, we have to surmise the reasons for the protection of Bush doctrine, and one possible option is that it’s still in place.

On a day where we hear of more civil liberties abuses at the heart of our government, the President can choose to defend those past abuses, or by opposing, end them. His choice.

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Misinformation And Its Discontents
by tristero

Here’s a Republican misinformation talking point that, in the hands of Bloomberg News, goes transparently awry:

President Barack Obama and his wife, Michelle, earned $2.73 million last year and paid $855,323 in federal taxes, an amount that would be higher by about $102,000 if his budget plan were in effect.

But the article also reports Biden’s income and taxes:

The administration also released the tax return filed by Vice President Joe Biden and his wife, Jill. It shows they paid $46,952 in federal taxes for 2008 on $269,256 in adjusted gross income. They also paid $1,827 in alternative minimum tax, a levy the Obamas avoided because their income was too high. The Bidens paid $11,164 in Delaware state income tax.

You notice something?

Ok. We learn that the Obamas’ taxes will rise, But for some strange reason, no one at Bloomberg bothered to calculate what the Bidens – who reported a low, but nevertheless quite comfortable, six-figure income last year – would pay in taxes if Obama’s budget plan goes into effect.

There’s a good reason for that omission. The article implies, or if you prefer, insinuates:

Because Obama’s own taxes will rise under his plan, and because politicians never act against their own interests, therefore everyone’s taxes will rise.

Now, that screwy logic would be contradicted if they reported that Biden’s tax rate wouldn’t return to pre-Bush levels – which, of course, is precisely the case (see the third comment to this post, from Brian J, for example ), and which the article leaves for readers to work out for themselves.

Who Could Have Predicted?

by digby

It was so inevitable that I can’t even find the energy to get worked up about it (which, when I think about it, was probably their cunning plan):

The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews.

Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in “overcollection” of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional.

The legal and operational problems surrounding the N.S.A.’s surveillance activities have come under scrutiny from the Obama administration, Congressional intelligence committees, and a secret national security court, said the intelligence officials, who were speaking only on the condition of anonymity because N.S.A. activities are classified. A series of classified government briefings have been held in recent weeks in response to a brewing controversy that some officials worry could damage the credibility of legitimate intelligence-gathering efforts.

[…]

The questions may not be settled yet. Intelligence officials say they are still examining the scope of the N.S.A. practices, and Congressional investigators say they hope to determine if any violations of Americans’ privacy occurred. It is not clear to what extent the agency may have actively listened in on conversations or read e-mail messages of Americans without proper court authority, rather than simply obtained access to them.

The intelligence officials said the problems had grown out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers, and the challenges posed by enacting a new framework for collecting intelligence on terrorism and spying suspects.

While the N.S.A.’s operations in recent months have come under examination, new details are also emerging about earlier domestic-surveillance activities, including the agency’s attempt to wiretap a member of Congress, without court approval, on an overseas trip, current and former intelligence officials said.

You hate to say “I told you so,” but …

After a contentious three-year debate that was set off by the disclosure in 2005 of the program of wiretapping without warrants that President George W. Bush approved after the Sept. 11 attacks, Congress gave the N.S.A. broad new authority to collect, without court-approved warrants, vast streams of international phone and e-mail traffic as it passed through American telecommunications gateways. The targets of the eavesdropping had to be “reasonably believed” to be outside the United States. Under the new legislation, however, the N.S.A. still needed court approval to monitor the purely domestic communications of Americans who came under suspicion.

In recent weeks, the eavesdropping agency notified members of the Congressional intelligence committees that it had encountered operational and legal problems in complying with the new wiretapping law, Congressional officials said.

Officials would not discuss details of the overcollection problem because it involves classified intelligence-gathering techniques. But the issue appears focused in part on technical problems in the N.S.A.’s ability at times to distinguish between communications inside the United States and those overseas as it uses its access to American telecommunications companies’ fiber-optic lines and its own spy satellites to intercept millions of calls and e-mail messages.

One official said that led the agency to inadvertently “target” groups of Americans and collect their domestic communications without proper court authority. Officials are still trying to determine how many violations may have occurred.

The safeguards were so confusing they caused them to “inadvertently” do even more unconstitional spying than before. Awesome.

Separate from the new inquiries, the Justice Department has for more than two years been investigating aspects of the N.S.A.’s wiretapping program.

As part of that investigation, a senior F.B.I. agent recently came forward with what the inspector general’s office described as accusations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those accusations are said to involve whether the N.S.A. made Americans targets in eavesdropping operations based on insufficient evidence tying them to terrorism.

Mr Rains, Mr Claud Rains? Please pick up the white courtesy telephone. (And by the way, it’s bugged.)

More on this tomorrow from all the usual suspects, I’m sure. Meanwhile, I’m, going to spend the rest of the night re-reading all the moving speeches that were made on the Senate floor just a year ago, talking about how we didn’t need to look in the rear view mirror and the safeguards in the bill would solve all problems.

Elections Are A Minor Inconvenience

by dday

Minnesotans want Norm Coleman to concede, by a two-to-one margin, so they can move on with full representation in their government. And the DNC has turned up the pressure by demanding that Coleman concede. But Norm Coleman and his business buddies don’t care.

A group of several dozen of the most influential business lobbyists in Washington is vowing to raise and spend whatever it takes to bankroll Norm Coleman’s upcoming appeal fight, in the wake of a three-judge ruling declaring that Al Franken defeated Coleman in the Minnesota Senate race.

The group of lobbyists, which calls itself “Team Coleman,” is made up of some of the biggest players in D.C.’s permanent lobbying establishment, and includes executives from the U.S. Chamber of Commerce, the National Federation of Independent Business, the National Restaurant Association and others.

“We will raise as much as is necessary,” Dirk Van Dongen, a leading member of Team Coleman and the president of the National Association of Wholesaler-Distributors, told me in an interview. “We’ll keep raising money as Norm needs it. We continue to be active in raising resources for Norm to carry out this fight to the end.” […]

But Democrats are likely to point to the lobbyists’ fundraising as proof that they’re merely keeping this battle alive to keep the seat vacant and prevent Dems from getting a leg up in the big upcoming policy battles involving the business lobbies, such as the battle over the Employee Free Choice Act.

Van Dongen (who is the father of WhoRunsGov editor Rachel Van Dongen) rejected that claim.

“That’s a side benefit,” Van Dongen said, when asked if the goal was to keep the seat vacant. “But this is all about us doing everything we can to be sure that Norm has had a fair election and to get him back in his Senate seat. We’d be doing exactly the same thing if the Republicans were in the majority.”

Well, there you have it. The amount of corporate money plowed into a doomed-to-fail project is a small price to pay for the “side benefit” of keeping that 59th Democratic vote out of the Senate. I wonder if Team Coleman funded any of the tea parties, too.

And we’re beginning to see this obstruction and delegitimizing of the election system as a pattern. In NY-20, where Scott Murphy has moved into the lead on the strength of absentee votes and is heavily favored for victory if the numbers continue to flow in at this level, the Republican candidate Jim Tedisco and his buddies from the Brooks Brothers Riot Roger Stone and John Sweeney have decided that their best option is to suppress as many votes as possible, and use the language of “voter fraud” to deny legitimate voters the franchise. Despite the fact that actual cases of fraud are almost nonexistent. Not even the junior Senator from New York has been spared.

This just in from Columbia County: when Sen. Kirsten Gillibrand’s absentee ballot came up in the queue, the poll watchers for Jim Tedisco objected to it, saying the senator was in the county on election day and should have voted in person.

Gillibrand’s office maintains that she wasn’t in the county on Election Day.

And today, a judge said that most of Tedisco’s 1,200 objections are invalid. But this statement by a Tedisco ally says it all.

They’re not doing it because they believe the votes to be illegitimate, really. What they’re doing, in the days and now hours leading up to the court hearings that will decide the outcome of the race between Republican Jim Tedisco and Democrat Scott Murphy, is creating a fact on the ground for the judiciary to overturn, if it dares […]

“It’s always better to be ahead-that’s the whole goal of this process,” said Nick Spano, a Yonkers Republican and former state senator who came out on the right side of a lengthy recount process in 2004, eventually winning by 18 votes.

This will never end. The Coleman and Tedisco cases can be put on a continuum. Conservatives now see electoral results as simply a starting point. They have adopted the cries of “stolen elections” from 2000 and 2004 and turned them right around. It was all so very predictable. They’ve had a plan for stealing elections for years and years, and Coleman and Tedisco are just following the playbook.

The latest and most elaborate of these jokes is the urban legend that American elections are rife with voter fraud, particularly in the kinds of poor and minority neighborhoods inhabited by Democrats. In 2002, Attorney General John Ashcroft announced that fraudulent voting would be a major target of the Department of Justice. As the New York Times reported last month, the main result of this massive effort was such coups as the deportation of a legal immigrant who mistakenly filled out a voter-registration card while waiting in line at the department of motor vehicles.

But the administration has remained ferociously committed to suppressing voter fraud — as soon as it can find some. In April of last year, Karl Rove warned a Republican lawyers’ group that “we have, as you know, an enormous and growing problem with elections in certain parts of America today. We are, in some parts of the country, I’m afraid to say, beginning to look like we have elections like those run in countries where the guys in charge are, you know, colonels in mirrored sunglasses. I mean, it’s a real problem.

“I appreciate that all that you’re doing in those hot spots around the country to ensure that the ballot — the integrity of the ballot is protected, because it’s important to our democracy.”

The goals here are to intimidate and alienate people from the voting process, suppress as many votes as possible, and delegitimize the victory, even if the Democrats manage to run the legal gauntlet and win. Eventually, Al Franken and Scott Murphy will be seated in Congress. But there’s no harm for the Republicans to just keep on with the same dirty tactics, with a look to the next election, when they can whisper about how “the Democrats stole the last one.”

…Howard Dean on Hardball today: “This could be a national pattern … this looks like a national attempt by the Republicans to keep people out of office if they have a D after their name.”

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Originalists Of The Species

by digby

Lisa aLa Figa went to some rallies in the LA area today and saw this sign:

Considering the level of historical knowledge we see on the right these days it’s reasonable to assume that this is just another illiterate wingnut. But it’s not. Apparently, this is a right wing slogan supporting the notion that poor people who don’t pay income taxes should not be allowed to vote because they vote for government benefits. In other words, poor people shouldn’t be allowed to vote.

Not that this is a particularly original idea. Elites fretted about democracy from the get, worrying that the polloi would use the vote to steal the landowners’ money.

In fact, these tea baggers really are “originalists.” They want to go back to the colonial system:

The basic principle that governed voting in colonial America was that voters should have a “stake in society.” Leading colonists associated democracy with disorder and mob rule, and believed that the vote should be restricted to those who owned property or paid taxes. Only these people, in their view, were committed members of the community and were sufficiently independent to vote. Each of the thirteen colonies required voters either to own a certain amount of land or personal property, or to pay a specified amount in taxes.

Many colonies imposed other restrictions on voting, including religious tests. Catholics were barred from voting in five colonies and Jews in four.

The right to vote varied widely in colonial America. In frontier areas, seventy to eighty percent of white men could vote. But in some cities, the percentage was just forty to fifty percent.

The American Revolution was fought in part over the issue of voting. The Revolutionaries rejected the British argument that representation in Parliament could be virtual (that is, that English members of Parliament could adequately represent the interests of the colonists). Instead, the Revolutionaries argued that government derived its legitimacy from the consent of the governed.

This made many restrictions on voting seem to be a violation of fundamental rights. During the period immediately following the Revolution, some states replaced property qualifications with taxpaying requirements. This reflected the principle that there should be “no taxation without representation.” Other states allowed anyone who served in the army or militia to vote. Vermont was the first state to eliminate all property and taxpaying qualifications for voting.

So, the tea party thing isn’t metaphorical; they literally want to go back to the original understanding of suffrage too.

I assume they also believes that the Second Amendment gives them the right to carry a musket.