The WikiLeaks Grand Jury and the still escalating War on Whistleblowing May 11, 2011
Posted by rogerhollander in Civil Liberties, Media.Tags: aclu, assange, bradley manning, civil liberties, first amendment, FISA, foia, freedom of information, glenn greenwald, government secrets, obama administration, p.j. crowley, peace, peace prize, roger hollander, state secrets, whistle blower, whistle-blowing, wikileaks
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11, 2011 08:53 ET
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As Julian Assange wins the Sydney Peace Prize for “exceptional courage in pursuit of human rights,” NPR reports that “a federal grand jury in Virginia is scheduled to hear testimony on Wednesday from witnesses” in the criminal investigation of his whistle-blowing group, as “prosecutors are trying to build a case against [the] WikiLeaks founder [] whose website has embarrassed the U.S. government by disclosing sensitive diplomatic and military information.” The NPR story — based in part on my reporting of a Grand Jury Subpoena served two weeks ago in Cambridge — explains what has long been clear: that “the WikiLeaks case is part of a much broader campaign by the Obama administration to crack down on leakers.”
Specifically, NPR accurately reports, the effort to turn Assange and WikiLeaks into criminals for doing nothing more than what newspapers, Bob Woodward, and administration officials frequently do — disclose government secrets to the public without authorization — is merely one prong in the Obama administration’s unprecedented war against whistleblowing:
A Worrisome Development
National security experts say they can’t remember a time when the Justice Department has pursued so many criminal cases based on leaks of government secrets.
Steve Aftergood of the Federation of American Scientists has been following five separate prosecutions, part of what he calls a tremendous surge by the Obama administration.
For people who are concerned about freedom of the press, access to national security information, it’s a worrisome development,” says Aftergood, who writes for the blog Secrecy News [ed: and is a vocal WikiLeaks critic].
Aftergood says some of the most important disclosures of the past decade, including abuses by the U.S. military at the Abu Ghraib prison in Iraq, came out because people concerned about overreach blew the whistle on the government.
”Leaks serve a very valuable function as a kind of safety valve,” he adds. “They help us to get out the information that otherwise would be stuck.”
The Obama Justice Department doesn’t agree.
The vast majority of publicly disclosed high-level government corruption and lawbreaking over the last decade has come from unauthorized leaks, with the majority of it over the last year from WikiLeaks. Thus, it’s hardly surprising that high-level government officials — even those who ran on a platform of protecting and venerating whistle-blowing — want to destroy it through a mix of persecution and intimidation. To its credit, the DOJ recently announced that it would not prosecute Thomas Tamm, the mid-level DOJ officials who informed the New York Times about the Bush warrantless eavesdropping program. But that has been a rare exception, as the DOJ is actively prosecuting an array of whistleblowers who exposed similar levels of corruption and wrongdoing — in blatant violation of Obama’s decree to “Look Forward, not Backward” when it comes to protecting powerful Bush-era political officials who committed serious crimes. Indeed, the prosecution of WikiLeaks — which, unlike government employees, has no duty to safeguard government secrets — would be the greatest blow to press freedoms and whistleblowing in the last several decades at least.
Assange was awarded this peace prize yesterday because — unlike other Peace Prize recipients — his work has been relentlessly devoted to impeding wars (not escalating them) by exposing the truth about the destruction and suffering they spawn. Beyond that, even the most vehement WikiLeaks critics, such as NYT Executive Editor Bill Keller, admit that the disclosures from WikiLeaks (and allegedly Bradley Manning) played at least some role in sparking the democratic rebellions in the Middle East, as those documents highlighted in new detail the breadth of the corruption of many of those despots:
And that does not count the impact of these revelations on the people most touched by them. WikiLeaks cables in which American diplomats recount the extravagant corruption of Tunisia’s rulers helped fuel a popular uprising that has overthrown the government.
And yet, many of the very same people who cheer for those democratic uprisings continue simultaneously to cheer for the administration that (a) steadfastly supported those dictators (and in some cases still supports them in exchange for doing America’s bidding) while (b) persecuting with Grand Jury investigations, imprisonment, and crushing solitary confinement those who seem to have helped spawn those rebellions. That the U.S. Government is obsessed with crushing one of the few remaining avenues for learning what it does (whistleblowing) — and forever imprisoning those who have brought more transparency to its wrongdoing and deceit than all media outlets combined (WikiLeaks, Assange and, if the accusations are true, Manning) — underscores just how central a role secrecy plays in maximizing government power and the ability of officials to abuse it. This secrecy regime is the heart and soul of the National Security State.
But to really see the true purposes served by secrecy, just consider this truly amazing ACLU report from yesterday. In 2009, the ACLU filed a FOIA request seeking information about how the Government has interpreted and applied the FISA Amendments Act of 2008 — the bipartisan legislation which vested lawbreaking telecoms with retroactive immunity and drastically expanded the Government’s domestic eavesdropping powers (in order to legalize the crux of the once-controversial Bush NSA program). Unsurprisingly, the Most Transparent Administration Ever refused to provide anything other than the most heavily redacted documents in response to that FOIA request, though it was enough, explained the ACLU, to “confirm that the government had interpreted the statute as broadly as we had feared and even that the government had repeatedly violated the few limitations that the statute actually imposed.”
But since then, the ACLU has been aggressively pursuing more documents, including attempting to find out which specific private industry telecoms are cooperating in these eavesdropping programs. Two weeks ago, the DOJ provided its explanations as to why it refuses to produce that information. Among those documents was what the ACLU calls ” this unexpectedly honest explanation from the FBI” about the real reason it insists on concealing this information. Just behold the noble purposes fulfilled by the secrecy regime (click on image to enlarge):
As the ACLU succinctly put it:
There you have it. The government doesn’t want you to know whether your internet or phone company is cooperating with its dragnet surveillance program because you might get upset and file lawsuits asserting your constitutional rights. Would it be such a bad thing if a court were to consider the constitutionality of the most sweeping surveillance program ever enacted by Congress?
This is the real purpose of the Government’s devotion to the secrecy regime: it prevents any meaningful accountability on the part of those in power. Preventing the public from knowing what they’re doing (and what their “private partners” are doing) ensures no backlash ensues and there is no accountability possible. That, manifestly, is the Obama administration’s overarching goal in adopting the Bush/Cheney version of the “state secrets” privilege and thus shielding even presidential crimes from judicial review: by keeping everyone, including courts, in the dark about what they do, they shield themselves (the public/private consortium that runs the National Security and Surveillance States) from the rule of law. And by keeping the public in the dark about what they do, they maintain exclusive control over information and thus shield and enable their own propaganda.
Whistleblowers in general — and WikiLeaks and Assange in particular — are one of the very, very few genuine threats to that scheme. And that — and that alone — is why they are being targeted with such fervor and force. And it’s why those who believe in greater transparency and in subverting that secrecy regime should do everything possible to defend whistleblowers from this assault.
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Philosophy Professor Jonathan Lear has a very interesting article in The New Republic on what motivated P.J. Crowley to speak out against Bradley Manning’s detention conditions and the important public values fulfilled by that type of (exceedingly rare) candor from public officials.
And for those in Boston: on May 26, I’ll be speaking to the annual meeting of the ACLU in Massachusetts. Ticket information is here. In advance of that event, I was interviewed by them on multiple civil liberties issues; those short video segments can be viewed here.
- More: Glenn Greenwald
George W. Obama January 15, 2010
Posted by rogerhollander in Barack Obama, Criminal Justice, Human Rights, Torture.Tags: aclu, black sites, bush administration, cheney, cia, cia renditions, constitution, Criminal Justice, eric holder, FISA, fourth amendment, Guantanamo, justice department, nat hentoff, obama administration, permanent detention, presidential immunity, rendition, Robert Gates, roger hollander, rumsfeld, sovereign immunity, state secrets, supreme court, thurgood marshall, torture, wiretap act
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After his first year, Obama shows his true face
By Nat Hentoff
Tuesday, January 12th 2010 at 3:33pm
“The Bush administration constructed a legal framework for torture, but the Obama administration is constructing a legal framework for impunity.”
”Mr. Obama’s ratifications of the basic outlines of the surveillance and detention policies he inherited would reverberate for generations. By bestowing bipartisan acceptance on them,” Mr. Balkin said, “Mr. Obama is consolidating them as entrenched features of government.”
”Throughout the world today there are men, women, and children interned indefinitely, awaiting trials which may never come or which may be a mockery of the word, because their governments believe them to be ‘dangerous.’ Our Constitution . . . can shelter us forever against the dangers of such unchecked power.”
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Pat Benic/Newscom
What a disappointment a year makes.
Before President Obama, it was grimly accurate to write, as I often did in the Voice, that George W. Bush came into the presidency with no discernible background in constitutional civil liberties or any acquaintance with the Constitution itself. Accordingly, he turned the “war on terror” over to Dick Cheney and Donald Rumsfeld—ardent believers that the Constitution presents grave obstacles in a time of global jihad.
But now, Bush’s successor—who actually taught constitutional law at the University of Chicago—is continuing much of the Bush-Cheney parallel government and, in some cases, is going much further in disregarding our laws and the international treaties we’ve signed.
On January 22, 2009, the apostle of “change we can believe in” proclaimed: “Transparency and the rule of law will be the touchstones of my presidency.” But four months into his first year in command, Obama instructed his attorney general, Eric Holder, to present in a case, Jewel v. National Security Agency, a claim of presidential “sovereign immunity” that not even Dick Cheney had the arrant chutzpah to propose.
Five customers of AT&T had tried to go to court and charge that the government’s omnipresent spy, the NSA, had been given by AT&T private information from their phone bills and e-mails. In a first, the Obama administration countered—says Kevin Bankston of Electronic Frontier Foundation, representing these citizens stripped of their privacy—that “the U.S. can never be sued for spying that violated federal surveillance statutes, the Foreign Intelligence Surveillance Act, or the Wiretap Act.”
It is one thing, as the Bush regime did, to spy on us without going to court for a warrant, but to maintain that the executive branch can never even be charged with wholly disregarding our rule of law is, as a number of lawyers said, “breathtaking.”
On the other hand, to his credit, Obama’s very first executive orders in January included the ending of the CIA “renditions”—kidnapping terrorism suspects off the streets in Europe and elsewhere and sending them for interrogation to countries known to torture prisoners. However, in August, the administration admitted that the CIA would continue to send such manacled suspects to third countries for detention and interrogation.
Why send them to a foreign prison if they’re not going to be tortured to extract information for the CIA? Oh, the U.S. would get “guarantees” from these nations that the prisoners would not be tortured. That’s the same old cozening song that Condoleezza Rice and George W. Bush used to sing robotically.
President Obama also solemnly pledged to have “the most open administration in American history.” Nonetheless, his Justice Department lawyers have already invoked “state secrets” to prevent cases brought by victims of the CIA renditions from being heard.
In February, in a lawsuit brought by five graduates of CIA “black sites” before the Ninth Circuit Court of Appeals in San Francisco, one of the judges, visibly surprised at hearing the new “change” president invoking “state secrets,” asked the government lawyer, Douglas Letter, “The change in administration has no bearing on this?”
The answer: “No, your honor.” This demand for closing this case before it can be heard had, he said, been “thoroughly vetted with the appropriate officials within the new administration, [and] these are authorized positions.”
Said the torture graduates’ ACLU lawyer, Ben Wizner: “Much is at stake in this case. If the CIA’s overboard secrecy claims prevail, torture victims will be denied their say in court solely on the basis of an affidavit submitted by their torturers.”
Barack Obama a torturer? Not exactly. In this particular case, the torture policy had been set by George W. Bush. President Obama is just agreeing with his predecessor. Does that make Obama complicit in these acts of torture? You decide.
What is clear, beyond a doubt—and not only in “rendition” cases, but in other Obama validations of what Dick Cheney called the necessary “dark side” of the previous administration—has been stated by Jameel Jaffer. Head of the ACLU’s National Security Project, he is the co-author of the definitive evidence of the Bush-Cheney war crimes that Obama is shielding, Administration of Torture (Columbia University Press).
After the obedient Holder rang the “state secrets” closing bell in the San Francisco case, Jaffer described the link between the Bush and Obama presidencies: “The Bush administration constructed a legal framework for torture, but the Obama administration is constructing a legal framework for impunity.”
It’s become an Obama trademark: reversing a vigorous position he had previously taken, as when he signed into law the FISA (Foreign Intelligence Surveillance Act) Amendments Act that, as a senator, he had vowed to filibuster as a protest against their destruction of the Fourth Amendment. And now he’s done it again. His government is free to spy on us at will.
For another example of the many Obamas, the shifting president had supported the release of photographs of Bush-era soldier abuses of prisoners in Iraq and Afghanistan. (The Second Circuit Court of Appeals in New York had approved the publication of these “intensive interrogations.”) But Obama changed his mind, and Defense Secretary Robert Gates flat-out censored the photos. Not surprisingly, the Roberts Supreme Court agreed with Gates and Obama and overruled the Second Circuit.
In a December 5 editorial, The New York Times helped explain why Obama—who doesn’t want to “look backward” at Bush cruelties—changed his mind: “The photos are of direct relevance to the ongoing national debate about accountability for the Bush-era abuses. No doubt their release would help drive home the cruelty of stress positions, mock executions, hooding, and other ‘enhanced interrogation techniques’ used against detainees and make it harder for officials to assert that improper conduct was aberrational than the predictable result of policies set at high levels.”
Barack Obama may well go down in history as the President of Impunity for Bush, Cheney, and, in time, himself, for continuing the CIA “renditions.”
But he will also be long remembered as the President of Permanent Detention. At the Supreme Court in 1987, in U.S. v. Salerno, Justice Thurgood Marshall, strenuously dissenting, warned: “Throughout the world today there are men, women, and children interned indefinitely, awaiting trials which may never come or which may be a mockery of the word, because their governments believe them to be ‘dangerous.’ Our Constitution . . . can shelter us forever against the dangers of such unchecked power.”
Not forever. The Obama government is working to assure that its purchase of the supermax prison, the Thomson Correctional Center in Illinois, will be the permanent forced residence of certain Guantánamo terrorism suspects who can’t be tried in our regular courtrooms because—gasp—they have been tortured, preventing the admission of “incriminating” statements they have made or—”state secrets” again!—a due process trial “would compromise sensitive sources and methods.”
Like torture.
I increasingly wonder whose Constitution Barack Obama was teaching at the University of Chicago. China’s? North Korea‘s? Robert Mugabe‘s? Glenn Greenwald, a former constitutional lawyer, whose byline I never miss on the Internet, asks: “What kind of a country passes a law that has no purpose other than to empower its leader to suppress evidence of the torture it inflicted on people?”
You may not be surprised to learn that my next book—to be published by Cato Institute, where I’m now a senior fellow—will be titled, Is This America?
I often disagree with ACLU Executive Director Anthony Romero—though I’m almost always in synch with his lawyers in the field—but Romero is right about Obama creating “Gitmo North”: “While the Obama administration inherited the Guantánamo debacle, this current move is its own affirmative adoption of those policies. It is unimaginable that the Obama administration is using the same justification as the Bush administration used to undercut centuries of legal jurisprudence and the principle of innocent until proved guilty and the right to confront one’s accusers. . . . The Obama administration’s announcement contradicts everything the president has said about the need for America to return to leading with its values. American values do not contemplate disregarding our Constitution and skirting the criminal justice system.”
If Dick Cheney were a gentleman, instead of continuing to criticize this president, he would congratulate him on his faithful allegiance to many signature policies of the Bush-Cheney transformation of America.
But never let it be said that President Obama is neglecting the patriotic education of America’s young. On December 13, Clint Boulton reported on eweek.com, “The Electronic Frontier Foundation and Berkeley‘s Samuelson Clinic have sued the Department of Justice and five other government organizations (including the CIA and the Office of the Director of National Intelligence) for cloaking their policies for using Facebook, Twitter, and other social networks to investigate citizens in criminal and other matters. [The plaintiffs] want to know exactly how, and what kinds of information, the feds are accessing from users’ social networking profiles.”
Maybe Dick Cheney can ask Barack to confirm him as a friend on Facebook.
Charlie Savage, the Times ace reporter of constitutional violations, chillingly shows how Yale Law School professor Jack Balkin got to the core of the consequences of our “yes, we can” president by predicting that “Mr. Obama’s ratifications of the basic outlines of the surveillance and detention policies he inherited would reverberate for generations. By bestowing bipartisan acceptance on them,” Mr. Balkin said, “Mr. Obama is consolidating them as entrenched features of government.”
Do Congressional Democratic leaders Harry Reid and Nancy Pelosi give a damn about this historic legacy of the Obama administration that they cluelessly help to nurture by providing lockstep Democratic majorities for?
Do you give a damn?
Momentum Gains in Movement to Impeach Bush Torture Lawyer Turned Federal Judge April 20, 2009
Posted by rogerhollander in Criminal Justice, Torture.Tags: Abu Ghraib, Alberto Gonzales, bagram, bob fertik, bruce ackerman, cheney, cia torturers, david swanson, democratic party, eric holder, FISA, fourth amendment, genea conventions, George Bush, Guantanamo, habeas corpus, impeach bybee, International law, jack goldsmith, jay bybee, jeremy scahill, jerrold nadler, john yoo, military commisions, mukasey, office of legal counsel, olc, patriot act, roger hollander, rule of law, rumsfeld, russ feingold, schakowsky, search and seizure, signing statements, special prosecutor, state secrets, steven bradbury, torture, torture memos, War Crimes
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Published on Monday, April 20, 2009 by RebelReports
While the leadership of the Democratic Party remains silent on Obama’s refusal to hold torturers accountable, activists are demanding a special prosecutor and calling on Congress to impeach Jay Bybee.
In the Sunday New York Times, the paper’s editors call for the impeachment of Judge Jay Bybee, author of one of the now infamous torture memos released last week. Bybee is now a federal judge. In its editorial, “The Torturers’ Manifesto,” the Times argued:
[The] investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.
These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.
Of course, Rumsfeld, Gonzales, Cheney, Bush and a slew of others belong on trial with Bybee, not just as witnesses in his case and the Times should be calling for that as well. But let’s remember, this is the paper that the Bush administration used as a conveyor belt for its deadly lies so expectations of it should be low.
In a recent piece for Slate, “Impeach Jay Bybee: Why should a suspected war criminal serve as a federal judge?,” Yale law professor Bruce Ackerman lays out some of Bybee’s history:
“Jay Bybee is currently sitting on the 9th U.S. Circuit Court of Appeals in San Francisco. As assistant attorney general in President George W. Bush’s Justice Department, he was responsible for the notorious torture memos that enabled the excesses at Abu Ghraib, Guantanamo, and other places. While John Yoo did most of the staff work for Bybee, Yoo was barely 35 years old – and his memos showed it. They not only took extreme positions; they were legally incompetent, failing to consider many of the most obvious counterarguments. Bybee was 49. He was the grown-up, the seasoned jurist. He had been a law professor and had served as associate counsel to President Bush. When he was promoted to head the Justice Department’s Office of Legal Counsel, he became the final judge of legal matters within the executive branch. Yet his opinion on torture was so poorly reasoned that it was repudiated by his very conservative successor, Jack Goldsmith.”
David Swanson, the ever vigilant crusader for holding Bush era criminals accountable for their crimes, has started a website ImpeachBybee.org which contains resources on Bybee and how people can sign a petition calling for his impeachment.
While Obama has made clear that he does not intend to prosecute CIA torturers and their bosses and lawyers, saying it is “time for reflection, not retribution,” not everyone in his party is in agreement. As previously reported, Representative Jan Schakowsky, has been outspoken on this issue, as have Senator Russ Feingold and Representative Jerrold Nadler. But the leadership of the Democratic Party has, predictably, been silent. Indeed, Nadler was the first Democrat to call for the appointment of a Special Prosecutor. On Friday, Nadler released a statement, saying:
“These memos make it abundantly clear that the Bush administration engaged in torture. Because torture is illegal under American law – as the U.S. is a signatory to the Convention Against Torture – we are legally required to investigate and, when appropriate, to prosecute those responsible for these crimes.
“I commend President Obama for his unequivocal rejection of torture and for his resolve to move forward. The President’s intentions are honorable, but don’t go far enough. All history teaches us that simply shining a light on criminal acts without holding the responsible people accountable will not prevent repetition of those acts.
“I have previously urged Attorneys General Gonzalez and Mukasey to appoint a special prosecutor to investigate the torture abuses of the Bush administration, and now I will convey that same necessity to President Obama and Attorney General Holder. We sorely need an independent investigation that will provide accountability for these terrible crimes.
Meanwhile, Bob Fertik at Democrats.com is circulating a petition to Congress with five primary demands:
1. Demand the appointment of a Special Prosecutor by Attorney General Eric Holder for torture, warrantless wiretapping, and other heinous crimes of the Bush Administration.
2. Prohibit the use of any taxpayer dollars to defend government officials who committed such crimes against lawsuits, or to pay for judgments against them.
3. Impeach Judge Jay Bybee, the torture memo author who serves on the Court of Appeals for the Ninth Circuit in California.
4. Protect human rights by restoring Habeas Corpus and the Fourth Amendment (search and seizure), including repeal of the Orwellian-named Protect America Act, U.S.A. Patriot Act, the FISA Amendments, and Military Commissions Act.
5. End secret government by prohibiting use of “State Secrets,” “Sovereign Immunity” and “Signing Statements.”
The Obama administration has a moral and legal responsibility to prosecute Bush era criminals. The UN has indicated that Obama’s refusal to prosecute torturers may be a violation of International law. As for US law, Michael Ratner, president of the Center for Constitutional Rights said, “Whether or not to prosecute law breakers is not a political decision. Laws were broken and crimes were committed. If we are truly a nation of laws … a prosecutor needs to be appointed and the decisions regarding the guilt of those involved in the torture program should be decided in a court of law.”
Comments like “reflection not retribution” and “look forward, not backwards,” are insulting to the rule of law and the cause of justice.
Major Scandal Erupts involving Rep. Jane Harman, Alberto Gonzales and AIPAC April 20, 2009
Posted by rogerhollander in Criminal Justice.Tags: aipac, Alberto Gonzales, doj, doj lawyers, eric lichtblau, FISA, glenn greenwald, intelligence committee, israeli agent, jane harman, justice departmen, Nancy Pelosi, national security, nsa wiretap, porter goss, roger hollander, warrantless wiretapping
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Published on Monday, April 20, 2009 by Salon.com
Other obligations prevent me from writing until later today — and I intend to focus on Rahm Emanuel’s war-crimes-protecting proclamation that Obama’s desire for immunity extends beyond CIA officers perpetrating torture to the “policy makers” who ordered it (watch today as the hardest-core Obama loyalists start explaining how the UN doesn’t matter, international treaties are irrelevant, and war criminals need not be held accountable) – but, until then, I wanted to highlight this extremely important and well-reported story from CQ‘s Jeff Stein, which involves allegations of major corruption and serious criminal activity on the part of Democratic Rep. Jane Harman. Here’s one crucial prong of the story:
Rep. Jane Harman , the California Democrat with a longtime involvement in intelligence issues, was overheard on an NSA wiretap telling a suspected Israeli agent that she would lobby the Justice Department reduce espionage-related charges against two officials of the American Israeli Public Affairs Committee, the most powerful pro-Israel organization in Washington.
Harman was recorded saying she would “waddle into” the AIPAC case “if you think it’ll make a difference,” according to two former senior national security officials familiar with the NSA transcript.
In exchange for Harman’s help, the sources said, the suspected Israeli agent pledged to help lobby Nancy Pelosi, D-Calif., then-House minority leader, to appoint Harman chair of the Intelligence Committee after the 2006 elections, which the Democrats were heavily favored to win.
Seemingly wary of what she had just agreed to, according to an official who read the NSA transcript, Harman hung up after saying, “This conversation doesn’t exist.”
That’s not even the most significant part. Back in October, 2006, Time reported that the DOJ and FBI were investigating whether Harman and AIPAC ”violated the law in a scheme to get Harman reappointed as the top Democrat on the House intelligence committee” and “the probe also involves whether, in exchange for the help from AIPAC, Harman agreed to help try to persuade the Administration to go lighter on the AIPAC officials caught up in the ongoing investigation.” So that part has been known since 2006.
Stein adds today that Harman was captured on an NSA wiretap conspiring with an Israeli agent to apply pressure on DOJ officials to scale back the AIPAC prosecution. But the real the crux of Stein’s scoop is that then-Attorney General Alberto Gonazles intervened to kill the criminal investigation into Harman — even though DOJ lawyers had concluded that she committed crimes — because top Bush officials wanted Harman’s credibility to be preserved so that she could publicly defend the Bush administration’s illegal warrantless eavesdropping program:
[C]ontrary to reports that the Harman investigation was dropped for “lack of evidence,” it was Alberto R. Gonzales, President Bush’s top counsel and then attorney general, who intervened to stop the Harman probe.
Why? Because, according to three top former national security officials, Gonzales wanted Harman to be able to help defend the administration’s warrantless wiretapping program, which was about break in The New York Times and engulf the White House. . . .
Justice Department attorneys in the intelligence and public corruption units who read the transcripts decided that Harman had committed a “completed crime,” a legal term meaning that there was evidence that she had attempted to complete it, three former officials said. . . .
Then-CIA Director Porter J. Goss reviewed the Harman transcript and signed off on the Justice Department’s FISA application. . . . Goss, a former chairman of the House Intelligence Committee, deemed the matter particularly urgent because of Harman’s rank as the panel’s top Democrat.
But that’s when, according to knowledgeable officials, Attorney General Gonzales intervened.
According to two officials privy to the events, Gonzales said he “needed Jane” to help support the administration’s warrantless wiretapping program, which was about to be exposed by the New York Times.
Harman, he told Goss, had helped persuade the newspaper to hold the wiretap story before, on the eve of the 2004 elections. And although it was too late to stop the Times from publishing now, she could be counted on again to help defend the program
He was right.
On Dec. 21, 2005, in the midst of a firestorm of criticism about the wiretaps, Harman issued a statement defending the operation and slamming the Times, saying, “I believe it essential to U.S. national security, and that its disclosure has damaged critical intelligence capabilities.”
And thanks to grateful Bush administration officials, the investigation of Harman was effectively dead.
Indeed, as I’ve noted many times, Jane Harman, in the wake of the NSA scandal, became probably the most crucial defender of the Bush warrantless eavesdropping program, using her status as “the ranking Democratic on the House intelligence committee” to repeatedly praise the NSA program as “essential to U.S. national security” and “both necessary and legal.” She even went on Meet the Press to defend the program along with GOP Sen. Pat Roberts and Rep. Pete Hoekstra, and she even strongly suggested that the whistleblowers who exposed the lawbreaking and perhaps even the New York Times (but not Bush officials) should be criminally investigated, saying she “deplored the leak,” that “it is tragic that a lot of our capability is now across the pages of the newspapers,” and that the whistleblowers were “despicable.” And Eric Lichtblau himself described how Harman, in 2004, attempted very aggressively to convince him not to write about the NSA program.
Stein’s entire story should be read. It’s a model of excellent reporting, as it relies on numerous sources with first-hand knowledge of the NSA transcripts (and what sweet justice it would be if Harman’s guilt were established by government eavesdropping). It should be noted that Harman has issued a general denial of wrongdoing (but does not appear to deny that she had the discussion Stein reports), and the sources in Stein’s story are anonymous (though because they’re disclosing classified information and exposing government wrongdoing, it’s a classic case of when anonymity is justifiable; and note Stein’s efforts to provide as much information as possible about his sources and why they are anonymous).
There are many questions that the story raises — Josh Marshall notes just some of those vital questions here — and Harman’s guilt therefore shouldn’t be assumed. But obviously, given all the very serious issues this story raises — involving what seem to be credible allegations of very serious wrongdoing by a key member of Congress, the former Attorney General and one of the most powerful lobbying organizations in the country — full-scale investigations are needed, to put it mildly.
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How Obama Excused Torture April 17, 2009
Posted by rogerhollander in Barack Obama, Dick Cheney, George W. Bush, Torture.Tags: Abu Ghraib, Abu Omar, al-Qaeda, bagram, bruce fein, Bush, Bush torture, cheney, cia kidnapping, CIA torture, coercive brainwashing, COINTELPRO, constitution, david addington, enhanced interrogation, eric holder, extraordinary rendition, FISA, geneva conventions, gonzales, Guantanamo, illegal wiretaps, International law, international red cross, jay bybee, joe padilla, john yoo, Karzai, Minaret, nsa, obama coward, obama torture, office legal counsel, olc, presidential pardon, roger hollander, rumsfeld, scooter libby, Shamrock, special prosecutor, state secrets, torture, torture memos, warrantless spying, waterboarding, william haynes
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“Obama has proven a political coward dangerous to the Republic. “
Published on Friday, April 17, 2009 by The Daily Beast
Former Reagan Justice Department official Bruce Fein writes that Obama’s decision to release CIA memos without prosecuting Bush administration officials flouts his constitutional duty.
On Thursday, April 16th, in response to a lawsuit initiated by the American Civil Liberties Union, President Barack Obama released four redacted Office of Legal Counsel (OLC) memoranda from the Bush administration to the CIA justifying torture or cruel, inhumane, or degrading treatment. (The CIA’s enhanced interrogation techniques were modeled on the Chinese Communist coercive brainwashing program against Americans captured in the Korean War to induce false confessions). Each memorandum hedged its conclusions with substantial caveats, such as the absence of judicial precedents and concessions that reasonable persons could dispute their exculpatory conclusions. The memoranda were later renounced as bad law.
Obama, however, promised non-prosecution of all CIA personnel complicit in torture who relied on the flawed OLC advice. He further pledged to defend them from criminal investigations initiated by foreign jurisdictions and to indemnify them if they are held liable in damages for constitutional or statutory wrongdoing. Obama is similarly defending former OLC Deputy Assistant Attorney General John Yoo against a torture suit initiated by Jose Padilla, convicted of terrorism in 2007 after the government dropped charges that as an “enemy combatant” he plotted to set off a “dirty bomb.” The Yoo memoranda on torture have also been renounced and discredited. Obama also promised to follow the Bush-Cheney duumvirate in claiming secrecy for alleged national security secrets because “the world is dangerous.” Indeed, he did not voluntarily initiate release of the four OLC memoranda, but responded to a Freedom of Information Act suit. And President Obama has echoed the Bush-Cheney state secrets arguments to block lawsuits challenging the legality of spying on Americans without warrants in contravention of the Fourth Amendment or federal law, or seeking damages for torture. Moreover, Obama has been unable to recite a single instance where transparency proved more dangerous to the liberties of the American people than has secrecy, the birthplace of COINTELPRO, Shamrock, Minaret, Abu Ghraib, and torture of 14 so-called “High Value Al Qaeda” detainees in secret prisons abroad (according to the International Committee of the Red Cross).
On the same day Obama was excusing torture and promising more secret government, The New York Times published a front page story disclosing the National Security Agency’s apparently illegal interceptions of emails and phone calls of American citizens in the United States without individual judicial warrants. The interceptions exceeded even the sweeping group warrant authority to spy on persons reasonably believed to be outside the United States that were authorized in amendments to the Foreign Intelligence Surveillance Act (FISA) enacted last September. President Obama has declined to sanction a single official implicated in the latest apparent violation of a statute he supported as a senator. He has similarly chosen non-prosecution for former President Bush, former Vice President Cheney, and high level officials at the National Security Agency (NSA) and CIA who authorized more than five years of FISA felonies: namely, warrantless NSA spying on American citizens on American soil in flagrant contravention of FISA, about which more anon.
The evidence is now undeniable. President Barack Obama is flouting his unflagging constitutional obligation enshrined in Article II, Section 3 to “take Care that the Laws be faithfully executed.” He is also reneging on his signature campaign promise to restore the rule of law, transparency, and accountability to the White House. He is displaying the psychology of an arrogant Empire as opposed to a modest Republic in continuing and escalating the Bush-Cheney duumvirate’s global and perpetual war against international terrorism heedless of foreign sovereignties or the lives of civilians.
Even more disappointing, Obama has proven a political coward dangerous to the Republic. Before April 16, he had decided against any criminal investigation of the Bush-Cheney duumvirate or their inner circles for their boasted complicity in torture, i.e., waterboarding, which Attorney General Eric Holder has declared is torture. He has similarly declined investigations of extraordinary renditions that have occasioned, among other things, the indictments and in absentia trials of 26 CIA operatives in Milan, Italy, for the kidnapping and torture of Egyptian cleric Abu Omar.
Obama made no effort to square his refusal to investigate credible and substantial evidence of felonies with his constitutional obligation to faithfully execute, not sabotage the laws. He relied solely on politics, as though law was nothing more than a constellation of political calculations with ulterior motives. Obama insisted that investigations of Bush-Cheney would disturb the Toscanini-like symphony he had promised to the political class in the corridors of power. Comparable political calculations explain why Afghanistan’s President Hamid Karzai declines to prosecute the countless officials implicated in staggering corruption, inefficiency, and subjugation of women-all of which are deplored by President Obama.
In sweeping the Bush-Cheney lawlessness under the rug, Obama has set a precedent whitewashing White House lawlessness in the name of national security that will lie around like a loaded weapon ready for resurrection by any Commander-in-Chief eager to appear “tough on terrorism” and to exploit popular fear. Obama urges that the crimes were justified because the duumvirate acted to protect the nation from international terrorism. But Congress did not create a national security defense to torture or commit FISA felonies.
President Obama should have invoked his pardon power if he believed circumstances justified the crimes by Bush and Cheney and the CIA’s interrogators. A pardon or lesser clemency properly exposes the president to political accountability, as Bush discovered with Cheney’s chief of staff Scooter Libby and President Ford with former President Nixon. More significant, a pardon does not set a precedent making lawful what was unlawful. It acknowledges the criminality of the underlying activity, and acceptance of the pardon is an admission of guilt by the recipient. Pardons leave unsullied the doctrine of Ex parte Milligan (1866):”The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men at all times and in all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”
Obama can be summoned against his own non-prosecution policy, secrecy, and non-accountability. In releasing the four OLC memoranda on April 16, Obama asserted: “Enlisting our values [like the rule of law or transparency] 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 [like the rule of law or government in the sunshine]… I believe strongly in transparency and accountability… The United States is a nation of laws.”
These words should be taken cum granis salis. Bush and Cheney also insisted that everything they did was constitutional and indispensable to thwarting another 9/11. Obama’s promise of change has proven nothing more than verbal jugglery.
Obama, the ICRC Report and Ongoing Suppression April 7, 2009
Posted by rogerhollander in Criminal Justice, Torture.Tags: addington, bush crimes, cheney, doj, FISA, geneva conventions, glenn greenwald, international red cross, judicial oversight, justice department, leon panetta, mark danner, nuremberg principles, obama obstruction, roger hollander, rule of law, senate democrats, torture, War Crimes, yoo
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Published on Tuesday, April 7, 2009 by Salon.com
Following up on the latest extremist Cheney/Addington/Yoo arguments advanced by the Obama DOJ in order to shield Bush lawbreaking from disclosure and judicial review — an episode I wrote about in detail yesterday, here — it’s worthwhile to underscore the implications of Barack Obama’s conduct. When Obama sought to placate his angry supporters after he voted for the Bush/Cheney FISA-telecom immunity bill last June (after vowing the prior December to support a filibuster of any such legislation), this is what he said (h/t notavailable):
[The FISA bill] also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses.
So candidate Obama unambiguously vowed to his supporters that he would work to ensure “full accountability” for “past offenses” in surveillance lawbreaking. President Obama, however, has now become the prime impediment to precisely that accountability, repeatedly engaging in extraordinary legal maneuvers to ensure that “past offenses” — both in the surveillance and torture/rendition realm — remain secret and forever immunized from judicial review. Put another way, Obama has repeatedly done the exact opposite of what he vowed he would do: rather than “seek full accountability for past offenses,” he has been working feverishly to block such accountability, by embracing the same radical Bush/Cheney views and rhetoric regarding presidential secrecy powers that caused so much controversy and anger for the last several years.
And note the pure deceit on the part of Senate Democrats who justified telecom immunity by continuously assuring the public that the Bush officials who ordered the illegal surveillance (as opposed to the telecoms who broke the law by enabling it) would still be subject to legal accountability. It was obvious at the time (as was often pointed out) that they were outright lying when they said this — because all sorts of legal instruments had been invoked (such as “state secrets” and ”standing” arguments) to protect those government officials from that accountability (legal instruments Democrats knowingly left in place), and now it is Barack Obama who is leading the way in ensuring that the assurances given by Senate Democrats — don’t worry that we immunized the phone companies because Bush officials, who were the truly guilty parties in the illegal spying, will still be subject to legal accountability — never materialize.
On a very related note: last night, The New York Review of Books published the full report of the International Committee of the Red Cross (.pdf), which documented in detail the brutal torture to which the 14 ”high-value” detainees whom we disappeared into our CIA ”black sites” were subjected and demanded “that the US authorities investigate all allegations of ill-treatment and take steps to punish the perpetrators, where appropriate.” As Scott Horton notes, the ICRC does not call for investigations and prosecutions easily, but rather, “only where the evidence of criminal conduct is manifest.” Yet Obama’s handpicked CIA Director, Leon Panetta, continues to demand that there be no investigations of any kind, let alone prosecutions. As a CIA spokesperson told the New York Times yesterday in response to the ICRC report:
Mr. Panetta “has stated repeatedly that no one who took actions based on legal guidance from the Department of Justice at the time should be investigated, let alone punished.” The C.I.A.’s interrogation methods were declared legal by the Justice Department under President George W. Bush.
Accompanying the ICRC report was an article by Mark Danner, the superb journalist who obtained the ICRC Report and disclosed it. In his article, Danner describes the grave dangers from preserving ongoing secrecy surrouding Bush/Cheney crimes (h/t bystander; emphasis added):
Barack Obama may well assert that “the facts don’t bear [Cheney] out,” but as long as the “details of it” cannot be revealed “without violating classification,” as long as secrecy can be wielded as the dark and potent weapon it remains, Cheney’s politics of torture will remain a powerful if half-submerged counter-story, waiting for the next attack to spark it into vibrant life.
As Danner explains, it is simply impossible for Obama to “turn the page” on (let alone reverse) the dark Bush/Cheney era of war crimes while he simultaneously turns himself into the prime agent suppressing the facts surrounding those crimes and vigorously shielding the criminals from all investigation and accountability.
Follow Up With Your Local D.A. Now That They Have The Bugliosi Book On Prosecuting Dick & W February 26, 2009
Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture.Tags: constitution, crimes against humanity, Criminal Justice, Dick Cheney, eric holder, FISA, geneva conventions, George Bush, international criminals, prosecute cheney bush, prosecution, roger hollander, rule of law, special counsel, special prosecutor, torture, vince bugliosi, War Crimes
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However, this week there is a special priority. We told you that another activist group was sending copies of the Vince Bugliosi Book, “The Prosecution of George W. Bush for Murder” to each and every local county district attorney in the country, nearly 3,000 books in the mail which were due to arrive at their destinations on or about Feb. 21, so they should be there by now.
To follow up we are asking all our participants to make it their mission to confirm with your local prosecutor that they got their copy of the book, and make sure to tell them that Vince Bugliosi himself wrote them a cover letter with the book, offering his help in any way, and highlighting the essentials of the case. There is a link to the actual text of this cover letter on the page below, where you can also instantly look up the contact info for your own local D.A.
Local D.A. Action Page: http://www.peaceteam.net
Remember, unless we demand and achieve true accountability, there is absolutely no meaningful constraint on the potential war criminals of the future. So please read the Bugliosi cover letter yourself, and the words will come to you so you will know exactly what to say when you ask your own prosecutor to accept Vince’s help in bring the criminals from the last White House to real justice. And if you have not requested one of the new “Convict Dick & W” caps already, you can get yours from the same page above.
At the same time, we are also keeping the pressure on the appointment of real special prosecutor at the federal level. We will not settle for a so-called “truth” commission that’s just an immunity fest for the worst of international criminals. The following is the text of a joint letter drafted and released by our activist friends at After Downing Street, which many major progressive groups have already signed on to.
*Statement on Prosecution of Former High Officials *
We urge Attorney General Eric Holder to appoint a non-partisan independent Special Counsel to immediately commence a prosecutorial investigation into the most serious alleged crimes of former President George W. Bush, former Vice President Richard B. Cheney, the attorneys formerly employed by the Department of Justice whose memos sought to justify torture, and other former top officials of the Bush Administration.
Our laws, and treaties that under Article VI of our Constitution are the supreme law of the land, require the prosecution of crimes that strong evidence suggests these individuals have committed. Both the former president and the former vice president have confessed to authorizing a torture procedure that is illegal under our law and treaty obligations. The former president has confessed to violating the Foreign Intelligence Surveillance Act.
We see no need for these prosecutions to be extraordinarily lengthy or costly, and no need to wait for the recommendations of a panel or “truth” commission when substantial evidence of the crimes is already in the public domain. We believe the most effective investigation can be conducted by a prosecutor, and we believe such an investigation should begin immediately.
Drafted by The Robert Jackson Steering Committee
http://www.afterdowningstreet.org/robertjackson
Please take action NOW, so we can win all victories that are supposed to be ours, and forward this alert as widely as possible.
If you would like to get alerts like these, you can do so at http://www.peaceteam.net/in.htm
Pelosi criticizes Truth Commission as inadequate, advocates criminal prosecutions February 25, 2009
Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture.Tags: bush administration, cia, criminal proscutions, enhanced interrogation, FISA, glenn greenwald, John Conyers, Nancy Pelosi, NSA eavesdropping, pat leahy, rachel maddow, renditon, roger hollander, rule of law, senate judiciary, torture, truth commission, wiretapping
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Glenn Greenwald
www.salon.com, February 25, 2009
This directly relates to the post I wrote earlier about Mark Benjamin’s report that the Senate Judiciary Committee appear to be on the verge of creating a “Truth Commission” to investigate Bush crimes, but this is newsworthy in its own right, and so I wanted to highlight it separately:
In an interview today with Rachel Maddow — to be broadcast on Maddow’s MSNBC show tonight (and transcripts of which I’ve obtained) — House Speaker Nancy Pelosi repeatedly advocated the need for criminal prosecutions, not merely fact-finding. She even directly criticized the proposal by Sen. Pat Leahy for a “Truth Commission,” on the ground that such a Commission would improperly immunize lawbreakers and thus foreclose prosecutions:
MADDOW: This is something that liberals have really been pushing. And you have stated your support for John Conyers convening an investigation into potential lawbreaking in the Bush administration.
PELOSI: Absolutely.
MADDOW: You’ve been outspoken about contempt of Congress charges related to the politicization of the Justice Department and that investigation. You have been less specific about how Congress should proceed on warrantless wiretapping and torture. Why is that? . . .
PELOSI: Senator Leahy has a proposal, a Truth and Reconciliation Commission, which is a good idea. What I have some concern about though is it has immunity. And I think that some of the issues involved here, like the services part, politicizing of the Justice Department, and the rest, they have criminal ramifications, and I don’t think we should be giving them immunity.
Pelosi then acknowledged that the FISA bill passed by Congress in 2008 was flawed in many important respects, but said that the “part of the bill that was positive” was the requirement that the Justice Department’s Inspector General investigate the NSA eavesdropping program and issue a report (due this Summer) as to the scope and legality of Bush’s eavesdropping. About that comment, Maddow asked Pelosi whether she would favor criminal prosecutions if, as many people expect, the IG Report concludes that the warrantless eavesdropping was illegal:
MADDOW: Then in terms of your report, if the inspector general report that comes out this summer suggests that there has been criminal activity at the official level on issues like torture, or wireless wiretapping, or rendition, or any of these other issues…
PELOSI: No one is above the law. I think I have said that.
MADDOW: … you support a call for a criminal investigation, potential investigation.
PELOSI: Absolutely.
That’s pretty definitive.
Maddow then repeatedly, and rather relentlessly, asked Pelosi about how much she was told about the Bush’s use of torture and about the warrantless eavesdropping program and whether her having known about those programs was an obstacle to investigations and prosecutions. Pelosi’s answers were largely evasive, but she was very emphatic — I believe for the first time — in claiming that while she was told by the CIA about potential “enhanced interrogation techniques” in “the abstract,” she was never told that these techniques were actually being used. She also claimed that she put up “very strong resistance” to the NSA warrantless eavesdropping program (I’ve never seen any evidence of such resistance at all; the only letter from Pelosi that was disclosed was one from October, 2001, which merely raised a concern over whether the NSA had presidential authorization for the program, not whether the program itself was illegal). But what matters here is that Pelosi insists that nothing she nor any other Democrat knew or did poses an obstacle in any way to full-scale criminal investigations.
This is the kind of debate and dispute that it is good to see in the Democratic caucus and that will hopefully grow — a debate between those (such as Leahy, Whitehouse and Conyers) who first want a “Truth Commission” to disclose Bush crimes and those (such as Pelosi, apparently) who believe that such a body is inadequate if it does not explicitly preserve the possibility of criminal prosecutions for high Bush officials and, in some circumstances (such as a finding by the IG that laws were broken), if it does not guarantee such an outcome. It will be interesting to hear what Whitehouse, Leahy and Conyers have to say about Pelosi’s criticisms of their proposed “Truth Commission.” I’ll post any comment I can get from them.
UPDATE: Here is a response I received to Pelosi’s comments from Erica Chabot of Pat Leahy’s office:
Senator Leahy gave a statement on the Senate Floor today on his ideas for a Commission of Inquiry. He also announced a Judiciary Committee hearing on the subject to be held next Wednesday. He mentions prosecutions in this statement. I have pasted it below for your reference.
I linked to the text of Leahy’s speech earlier today (here). The only argument he really makes against prosecutions is that “a failed attempt to prosecute for this conduct might be the worst result of all if it is seen as justifying abhorrent actions.” That’s true for every prosecution. Why continue to prosecute suspected murderers? After all, they might be acquitted, and that could be seen as “justifying abhorrent actions.” Moreover, as is true for every prosecution, before doing anything, prosecutors would gather and then carefully review all of the evidence, and thereafter assess the likelihood of conviction and only bring charges if there is a substantial likelihood of success.
Ultimately, while Whitehouse and Conyers are proposing a Truth Commission with the explicit possibility of subsequent prosecutions, and Pelosi is arguing for prosecutions now, Leahy’s overt argument against prosecutions — no matter what his “Truth Commission” finds — is nothing more than an attempt, by definition, to place the President above and beyond the rule of law. Whether she’s sincere or not about it, it’s at least good (and potentially productive) to see Pelosi being critical of such a lawless posture from the Senate Judiciary Committee Chairman.
Un-Cheating Justice: Two Years Left to Prosecute Bush March 4, 2012
Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture, War.Tags: Bush Cheney, Criminal Justice, david swanson, Dick Cheney, elizabeth holtzman, eric holder, FISA, George W. Bush, obama administration, roger hollander, state secrets, torture, War Crimes
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Elizabeth Holtzman knows something about struggles for justice in the U.S. government. She was a member of Congress and of the House Judiciary Committee that voted for articles of impeachment against President Richard Nixon in 1973. She proposed the bill that in 1973 required that “state secrets” claims be evaluated on a case-by-case basis. She co-authored the special prosecutor law that was allowed to lapse, just in time for the George W. Bush crime wave, after Kenneth Starr made such a mockery of it during the Whitewater-cum-Lewinsky scandals. She was there for the creation of the Foreign Intelligence Surveillance Act (FISA) in 1978. She has served on the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group, bringing long-escaped war criminals to justice. And she was an outspoken advocate for impeaching George W. Bush.
Holtzman’s new book, coauthored with Cynthia Cooper, is called “Cheating Justice: How Bush and Cheney Attacked the Rule of Law and Plotted to Avoid Prosecution — and What We Can Do About It.” Holtzman begins by recalling how widespread and mainstream was the speculation at the end of the Bush nightmare that Bush would pardon himself and his underlings. The debate was over exactly how he would do it. And then he didn’t do it at all.
Holtzman ends her book by pointing out that legal accountability can come after many years, as in the case of various Nazis, or of Chilean dictator Augusto Pinochet, or of the murderers of civil rights activists including Medgar Evers.
In between, for the bulk of the book, Holtzman, a former district attorney, lays out the prospects for a prosecution of Bush and others on charges of lying to Congress about the grounds for war, wiretapping Americans, and conspiring to torture. This is an excellent sampling of the many horrors on the list of Bush’s abuses, and clearly the three areas in which Holtzman believes a prosecution would stand the best chance of success. Her analysis of the war lies parallels and builds on that of Elizabeth de la Vega, another former prosecutor who has written on the topic. Holtzman adds an analysis of the steps Bush took to protect himself from prosecution in this and each other area. She also examines his possible legal defenses, finding some of them strong and others easily overcome.
In each area Holtzman finds charges that would stick, if our laws were enforced. She also finds charges that would have stuck, had the statute of limitations not elapsed, and others for which a couple of years yet remain. Holtzman believes charges for conspiring to defraud the government with war lies could be brought until January 20, 2014. She also believes that charges for violation of FISA could be brought until that same date, pointing out that changes made to the law have not provided immunity for prior violations of what the law used to be, and that immunity has been granted from civil suits but not from criminal prosecution. Charges of torture, Holtzman concludes, could be brought at any time in the future.
Holtzman argues for lengthening the statutes of limitations for grave abuses of power, for creating a special prosecutor, restoring the War Crimes Act, reclaiming protection against unchecked surveillance, recovering missing records, pursuing civil cases, impeaching torture lawyer turned judge Jay Bybee, and looking abroad for hope and change. She sees some chance of the International Criminal Court pursuing charges of torture.
This book is an ideal guide for a prosecutor with nerve and decency, although we haven’t found one in this country in the past several years. Other than Kurt Daims who is running for the office of Town Grand Juror in Brattleboro, Vermont, which voted to direct its police to indict Bush and Cheney four years ago, I’m not aware of any prosecutors in the United States with plans to pursue this kind of justice.
Glaringly absent from Holtzman’s book, despite its 2012 publication date, is any significant mention of the approach that President Obama has taken. There’s not one word about “looking forward, not backward,” not even so much as one tangential reference to Obama’s public instructions to Attorney General Eric Holder, no analysis of the intense effort that the Justice Department, State Department, and White House have pursued to protect Bush and Cheney from accountability, no mention of the ways in which Obama has continued a similar pattern of criminality — a state of affairs which, of course, might explain his reluctance to allow the enforcement of laws against his predecessor.
I don’t think it’s an unfair criticism to object that a book has left out a large but intimately related topic, one that apears to have been carefully avoided. Partisan prosecution of crimes and non-crimes by Republicans under President Clinton has been aggravated by Republican defensiveness and Democratic spinelessness under Bush. But it is the Democratic switch to defending all presidential wrongdoing since 2008 that has put the largest nails into the coffin of legitimate rule by law in this country. Bush’s crimes have been legitimized. Obama has claimed the power to torture as he deems necessary, the power to imprison and rendition as he sees fit, the power to murder any human being including U.S. citizens and children as he and he alone declares necessary, and powers of state secrecy that Nixon and Cheney never dreamed of. While Bush lied the Congress into a war that a reasonably intelligent 8 year old could have seen through, Obama has made the launching of wars a matter for the president alone. And that’s just fine with Democrats. Surely Holtzman is aware that this partisanship is a cancer, that it has ruined the power of impeachment and done away with truly independent special prosecutors, and that the purpose of accountability is to halt the ongoing acceptance of crime.
I have to quibble as well with Holtzman’s lowballing of the Iraq war death count by two orders of magnitude. I know everybody does it, but I still find it grotesque.
And yet I have to strongly recommend that this book be read and presented to every prosecutor in this country, including the seemingly shameless Eric Holder. We’ve got 23 months.