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DOJ Report on Torture Memo: Yoo Said Bush Could Order Civilians “Exterminated” February 20, 2010

Posted by rogerhollander in Criminal Justice, Torture.
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(Roger’s note: Harry Truman famously said, “The buck stops here.”  This is a rare admission of accountability coming from government.  The entire cover up of the notorious and illegal Cheney/Bush torture program, including the conviction of the likes of Lynndie England at Abu Ghraib and focusing on “rogue” CIA agents, is a typical government maneuver to shirk ultimate responsibility.  Many of us thought the OPR report might finally give some satisfaction at a higher level, but the buck has been passed from President Obama to Attorney General Holder to Associate Deputy Attorney General David Margolis, who has put a kibosh on the findings that would have led to sanctions against Yoo and Bybee.

 

[Oct.9, 2009: Yoo and Bybee submit their responses to final report to Associate Deputy Attorney General David Margolis, who is tasked with reviewing OPR’s conclusions.                                                                                                                    http://www.mainjustice.com/2010/02/19/a-timeline-of-the-opr-report/ ]

My question is: who “tasked” David Margolis to whitewash the OPR report’s conclusions?  Call my cynical, but could it have been Holder who was told by Obama to find a reliable subaltern to do the dirty deed?

I would also point out that the jurists who provoided the legal framework for Hitler’s halocaust were subject to accountability by the Nuremberg Tribunal along with the high level government officials who carried out the genocide.  We can be thankful that the likes of Obama and Holder were not calling the shots then, which would have resulted in some low level “rogue Nazis” convicted and punished for the extinction of millions of Jews, Gypsies, Gays, communitsts, etc. while Hess, Goring, Bormann and the rest of the Hitler A Team got off scott free.)

 

Friday 19 February 2010

by: Jason Leopold, t r u t h o u t | Report

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(Image: Lance Page / t r u t h o u t; Adapted: amarine88, Bebopsmile, dog ma)

For background on Jason Leopold’s extensive work on the Yoo/Bybee torture memo report please see here, here, here, and here. Leopold will also be writing a through analysis of the voluminous report this weekend.

A long-awaited report into the legal memos former Justice Department attorneys John Yoo and Jay Bybee prepared for the Bush administration on torture was released Friday afternoon and concluded that the men violated “professional standards” and should be referred to state bar associations where a further review of their legal work could have led to the revocation of their law licenses. 

But career prosecutor David Margolis, who reviewed the final version of the report, changed the disciplinary recommendations to “exercised poor judgment.” [There are three versions of the report, all of which can be found here.]

That means Yoo and Bybee will not be punished for having fixed the law around Bush administration policy that allowed the CIA to subject suspected terrorists to torture techniques, such as waterboarding, beatings, and sleep deprivation, as the report notes.

Yoo is a law professor at UC Berkeley and Bybee is a 9th Circuit Appeals Court judge. Former Justice Department official Steven Bradbury also authored several torture memos and was criticized in the OPR report. Investigators said they had “serious concerns about his analysis.” But the report did not charge him with ethical violations.

Former Attorney General John Ashcroft and Michael Chertoff, who was head of the Justice Department’s criminal division at the time the torture memos were prepared, were also criticized for not conducting a critical legal analysis of the memos, though neither was charged with misconduct. Ashcroft refused to cooperate with the investigation.

According to a January 5 memo Margolis sent to Attorney General Eric Holder, the Justice Department’s Office of Professional Responsibility (OPR) issued a final report on July 29, 2009 and “concluded that former Office of Legal Counsel (OLC) attorneys John Yoo and Jay Bybee engaged in professional misconduct by failing to provide ‘thorough, candid, and objective’ analysis in memoranda regarding the interrogation of detained terrorist suspects.”

Yoo specifically was found to have “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”

Bybee was found to have “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”

The report says that Yoo believed that George W. Bush’s Commander-in-Chief powers gave him the authority to unilaterally order the mass murder of civilians.

In the final version of the report, an OPR investigator questioned Yoo about what he referred to as the “bad things opinion,” where Yoo discussed what the president could do during wartime.

“What about ordering a village of resistants to be massacred?” an OPR investigator asked Yoo. “Is that a power that the president could legally—”

“Yeah,” Yoo said.

“To order a village of civilians to be [exterminated]?” the questioner replied.

“Sure,” Yoo said.

But Margolis, who suggested Yoo and Bybee’s flawed legal work was due to efforts to prevent another 9/11, said he was “unpersuaded” by OPR’s “misconduct” conclusins and declined to endorse its findings.

An earlier version of the report rejected that line of reasoning.

“Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear,” says the earlier draft of the report from OPR head Mary Patrice Brown. Her report, like the original draft, was sharply critical of the legal work that went into the torture memos and found that it lacked “thoroughness, objectivity and candor.”

“OPR’s own framework defines ‘professional misconduct’ such that a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney’s conduct,” Margolis wrote in the 69-page memo. “I am unpersuaded that OPR has identified such a standard. For this reason…I cannot adpot OPR’s findings of misconduct, and I will not authorize OPR to refer its findings to the state bar disciplinary authorities in the jurisdictions where Yoo and Bybee are licensed.”

Despite dozens of cases highlighted in the report that showed Yoo twisted the law in order to advance the Bush administration’s torture policy, Margolis said he did “not believe the evidence establishes [that Yoo] set about to knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his actions.”

“While I have declined to adopt OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client,” Margolis added. 

Margolis concluded his review, stating that “these memos contained some significant flaws.

“But as all that glitters is not gold, all flaws do not constitute professional misconduct,” he wrote. “The bar associations in the District of Columbia or Pennsylvania can choose to take up this matter, but the Department will make no referral.”

Margolis described himself in the memo as a “Department of Justice official who [beginning in the 1990s] has resolved challenges to negative OPR findings against former Department attorneys, most often in the context of proposed bar referrals.”

Yoo’s attorney, Miguel Estrada, said in an October 9, 2009 rebuttal to the final version of the report that “this perversion of the professional rules and myopic pursuit of Professor Yoo and Judge Bybee, can be explained only by a desire to settle a score over Bush administration policies in the war on terror.”

“But policy disputes are for the ballot box, not for the bar,” Estrada said. “Professor Yoo and Judge Bybee did nothing more than provide a good-faith assessment of the legality of a program deemed vital to our national security.”

Estrada claims that Yoo and Bybee were well aware of what the “CIA wanted” in the areas of subjecting detainees to brutal torture techniques.

“Of course the attorneys at OLC knew what the CIA wanted, since they knew the agency was attempting to get information to thwart further terrorist attacks, and indeed OLC obviously was being asked to opine on specific interrogation techniques that it knew the CIA wished to use if it legally could do so,” he said. 

OPR investigators noted that during the course of their four-and-a-half year probe, they were unable to obtain all of the evidence they needed. For example, they said that “most” of Yoo’s emails they sought during the critical time period the memos were drafted prior to August 2002 “had been deleted and were not recoverable.”

House Judiciary Committee Chairman John Conyers, whose office released the report, said he will hold a hearing to discuss the findings “shortly.”

In a statement accompanying the report, Conyers said the report makes clear that the torture memos “were legally flawed and fundamentally unsound.”

“Even worse,” Conyers said. “It reveals that the memos were not the independent product of the Department of Justice, but were shaped by top officials of the Bush White House. It is nothing short of a travesty that prisoners in US custody were abused and mistreated based on legal work as shoddy as this.”

Senate Judicary Chairman Patrick Leahy also condemned the findings and announced that he will hold a hearing on the report’s findings next Friday. In a statement, Leahy said the report “is a condemnation of the legal memoranda drafted by key architects of the Bush administration’s legal policy, including Jay Bybee and John Yoo, on the treatment of detainees.”

“The deeply flawed legal opinions proffered by these former OLC officials created a ‘golden shield’ that sought to protect from scrutiny and prosecution the Bush administration’s torture of detainees in US custody. In drafting and signing these unsound legal analyses, OLC attorneys sanctioned torture, contrary to our domestic anti-torture laws, our international treaty obligations and the fundamental values of this country,” Leahy added. “I have serious concerns about the role each of these government lawyers played in the development of these policies. I have said before that if the Judiciary Committee, and the Senate, knew of Judge Bybee’s role in creating these policies, he would have never been confirmed to a lifetime appointment to the federal bench. The right thing to do would be for him to resign from this lifetime appointment.”

The Center for Constitutional Rights (CCR), which represents several detainees at Guantanamo and others who were tortured by military and CIA interrogators, called for Bybee to be impeached and for Holder to order a criminal probe headed by a special prosecutor.

In a statement, CCR said the report makes it “makes it abundantly clear that the decisions about the torture program took place at the highest level, and the damning description of the program further show that the torture memos were written to order by the lawyers from the Office of Legal Counsel who played a key role in creating the program.”

“Ultimately Jay Bybee must be impeached, tried and removed from his seat as a federal judge on the 9th Circuit, but he should have the decency to resign immediately,” CCR aaid. “We call on Attorney General Eric Holder to order these men criminally investigated by an independent special prosecutor who is allowed to follow the facts where they lead, all the way up the chain of command.”

Jameel Jaffer, director of the ACLU’s National Security Project, which is largely responsible for bringing to light many of the revelations about the torture program described in the report, said, “The OPR report confirms the central role that the Office of Legal Counsel played in developing the Bush administration’s torture program, and it underscores once again that the decision to endorse torture was made by the Bush administration’s most senior officials.”

“It also makes clear that the investigation initiated by the Justice Department last year, which focuses on ‘rogue’ interrogators, is too narrow,” Jaffer added. “Interrogators should be held accountable where they violated the law, but the core problem was not one of rogue interrogators but one of senior government officials who knowingly authorized the gravest crimes. The Justice Department should immediately expand its investigation to encompass not just the interrogators who used torture but the senior Bush administration officials who authorized and facilitated it.”

Jason Leopold is the Deputy Managing Editor at Truthout. He is the author of the Los Angeles Times bestseller, News Junkie, a memoir. Visit newsjunkiebook.com for a preview. 

Feingold Pushes AG to Hold Torture Architects Accountable July 16, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney.
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Published on Thursday, July 16, 2009 by The Capital Times (Wisconsin) by John Nichols

Wisconsin Sen. Russ Feingold, the chief Senate critic of executive excess and wrongdoing during both Republican and Democratic administrations, wants Attorney General Eric Holder to appoint a prosecutor to investigate the CIA’s harsh interrogation program.

But Feingold wants Holder to do it right.

The chair of the Constitution Subcommittee of the Senate Judiciary Committee is concerned that the appointment of a prosecutor by Holder, which now seems increasingly likely, come with a charge by the attorney general “to focus on holding accountable the architects of the CIA’s interrogation program.”

In a letter to Holder, Feingold, who also sits on the Senate Intelligence Committee, wrote:

“Dear Attorney General Holder:

“Recent news stories indicate that you have reviewed the highly classified 2004 CIA Inspector General report on the CIA’s interrogation program, and that as a result you are considering appointing a prosecutor to investigate individuals who may have gone beyond the legal authorization for that program provided by the Office of Legal Counsel (OLC) at the Department of Justice. I write to encourage you to do so, but also to urge you to focus on holding accountable the architects of the CIA’s interrogation program. While allegations that individuals may have even gone beyond what was justified by those now-public OLC memos are extremely disturbing, we should not lose sight of the fact that the program itself — as authorized — was illegal, not to mention immoral and unwise.

“As I said in a letter to President Obama in April, the OLC documents make clear that the details of this program were authorized at the highest levels of government, which is where the need for accountability is most acute. Those who developed, authorized and provided legal justification for the interrogations should be held responsible.

“I understand this is a difficult decision for you, and I want to assure you that you will have my full support if you take this important step in furtherance of the rule of law.”

This is an essential message, and an essential step in the process.

Official Washington does not like accountability.

Holder will be under pressure to organize a narrow inquiry that focuses on the misdeeds of underlings.

But this investigation needs to go where the real wrongdoing took place.

Former Vice President Dick Cheney was a principal proponent of harsh interrogation during the Bush/Cheney years and has since emerged as the primary defender of the initiative.

When asked about the use of torture tactics late last year, Cheney told “ABC News,” “I was aware of the program, certainly, and involved in helping get the process cleared, as the agency, in effect, came in and wanted to know what they could and couldn’t do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it.”

That is an invitation — from Cheney himself — to, as Feingold suggests, investigate the extent to which illegal activity was “authorized at the highest levels of government” and to “(hold) accountable the architects of the CIA’s interrogation program.”

Americans should tell the attorney general to accept this invitation, and the Credo Action Project of the progressive long-distance phone service, Working Assets, is offering them an opportunity to do just that with a new campaign to tell Eric Holder to start his torture investigation with Dick Cheney. Check it out.

© 2009 The Capital Times

John Nichols is Washington correspondent for The Nation and associate editor of The Capital Times in Madison, Wisconsin. A co-founder of the media reform organization Free Press, Nichols is is co-author with Robert W. McChesney of Tragedy & Farce: How the American Media Sell Wars, Spin Elections, and Destroy Democracy – from The New Press. Nichols’ latest book is The Genius of Impeachment: The Founders’ Cure for Royalism.

CIA Refuses to Turn Over Torture Tape Documents May 13, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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by: Jason Leopold, t r u t h o u t | Report

 

The CIA claims the integrity of a special prosecutor’s criminal investigation into the destruction of 92 interrogation videotapes will be compromised if the agency is forced to turn over detailed documents to the American Civil Liberties Union (ACLU) describing the contents of the tapes, according to newly released court documents.

    In a May 5 letter to US District Court Judge Alvin Hellerstein, Lev Dassin, the acting US attorney for the Southern District of New York, said the Justice Department recently had discussions with prosecutors working on the criminal investigation into the destruction of the interrogation tapes and was informed that “the production of documents … would conflict and substantially interfere with the [criminal] investigation” into the destruction of the interrogation tapes.

    “As the court is aware, the scope of the tapes investigation includes the review of whether any person obstructed justice, knowingly made materially false statements, or acted in contempt of court or Congress in connection with the destruction of videotapes,” Dassin’s letter says. “The Government thus respectfully requests that [a previous court order demanding the CIA turn over detailed descriptions of the contents of the destroyed tapes] be withdrawn or otherwise stayed until the tapes investigation has been completed.”

    Amrit Singh, an ACLU staff attorney, said the move is “a classic CIA delay tactic.”

    In court papers, she said the government is using the criminal investigation “as a pretext for indefinitely postponing” its obligation to produce documents related to the destruction of the videotapes.

    “The Government makes no mention of an expected timeline for completion of [Special Prosecutor John] Durham['s] investigation,” the ACLU said in court papers. “Nor has Mr. Durham provided a declaration in support of the Government’s position.”

    Hellerstein seemed to agree. He pointed out in a two-page order that Durham had not stepped forward to state that his probe would be hindered if documents related to the destruction of the tapes were turned over to the ACLU.

    In fact, in a March court filing, Dassin noted that a stay of the contempt motion filed by the ACLU seeking release of the tapes was allowed to expire on February 28 without a request for a continuation – signaling that Durham’s investigation was complete. In January, Durham had indicated in a court filing that he expected to wrap up his probe by the end of February.

    Last month, however, Durham questioned the CIA’s former number three official, Kyle “Dusty” Foggo, about the destruction of the tapes. Foggo, who was sentenced to three years in prison for fraud for steering lucrative contracts to a friend, was due to report to federal prison, but Durham asked for a delay so he could question him about the tape destruction.

    In December 2007, the ACLU filed a motion to hold the CIA in contempt for its destruction of the tapes in violation of a court order requiring the agency to produce or identify all records requested by the ACLU related to the CIA’s interrogation of “war on terror” detainees.

    Hellerstein ordered the Justice Department, on behalf of the CIA, to file legal briefs by May 27 justifying the reasons for withholding the documents. He added that those papers should include affidavits, including a declaration from the special prosecutor investigating the tape destruction

    Those documents “may include also any reasons why the identity of persons involved in the destruction should not be disclosed,” Hellerstein wrote in a two-page order.

    Several weeks ago, Dassin revealed in another court filing that the CIA has about 3,000 documents related to the 92 destroyed videotapes, suggesting an extensive back-and-forth between CIA field operatives and officials of the Bush administration. The Justice Department said the documents include “cables, memoranda, notes and e-mails” related to the destroyed CIA videotapes.

    In last week’s court filing, Dassin said, “those 3,000 records included ‘contemporaneous records,’ which were created at the time of the interrogation or at the time the videotapes were viewed, ‘intelligence record,’ which do not describe the interrogations but contain raw intelligence collected from the interrogations, ‘derivative records,’ which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations, that upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.”

    The ACLU and the government have jointly proposed that the government describe the contents of the “contemporaneous” and “derivative” records, but not the intelligence records or the “other records that ultimately proved to be unrelated to the interrogations or the videotapes.”

    Dassin said the Justice Department intends to turn over additional indexes next month, and on May 18 will produce a list of “all contemporaneous records and all derivative records” related to the destruction of the interrogation tapes, but he added that quite a bit of information will be withheld.

    In previous court filings, Dassin acknowledged that 12 videotapes, showed Zubaydah and Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, being subjected to waterboarding and other harsh methods. The 80 other videotapes purportedly show Zubaydah and al-Nashiri in their prison cells. Some of the videotapes predated the Justice Department’s August 1, 2002, legal memo authorizing CIA interrogators to use ten torturous methods against “high-value” detainees.

    But it’s unknown whether the interrogation tapes that predate the August 1, 2002, “torture” depict “enhanced interrogation” techniques not yet approved by the Justice Department.

    Last week, the CIA turned over to the ACLU documents that showed CIA interrogators at a secret “black site” prison provided top agency officials in Langley with daily “torture” updates of Abu Zubaydah, the alleged “high-level” terrorist detainee, who was waterboarded 83 times in August 2002.

    The documents included two sets of indexes (Part I) (Part II), totaling 52 pages that contained general descriptions of cables sent back to CIA headquarters describing the August 2002, videotaped interrogation sessions of Zubaydah. Those cable transmissions included a description of the techniques interrogators had used and the intelligence, if any, culled from those sessions.

    The CIA and the Justice Department declined to turn over a more detailed description of the cables its field agents sent back to headquarters, citing several exemptions under the Freedom of Information Act.

    In a two-page letter accompanying the indexes, CIA Associate General Counsel John McPherson wrote that a “senior government official” would submit a declaration on May 22 “that more fully explains the justifications for withholding a more detailed description of the cables.”

torture tapes and cheney


Jason Leopold is editor in chief of The Public Record, www.pubrecord.org.

The Massive Expansion of America’s “Hard Left” May 13, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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by Glenn Greenwald



Jesse Ventura was on CNN with Larry King last night and this exchange occurred, illustrating how simple, clear and definitively non-partisan is the case for investigations and prosecutions for those who ordered torture (video below):



VENTURA:  I don’t watch much TV. This year’s reading, I covered Bush’s life. I covered Guantanamo and a few other subjects.


And I’m very disturbed about it.


I’m bothered over Guantanamo because it seems we’ve created our own Hanoi Hilton. We can live with that?  I have a problem.


I will criticize President Obama on this level; it’s a good thing I’m not president because I would prosecute every person that was involved in that torture. I would prosecute the people that did it. I would prosecute the people that ordered it. Because torture is against the law.


KING: You were a Navy SEAL.


VENTURA: That’s right. I was water boarded, so I know — at SERE School, Survival Escape Resistance Evasion. It was a required school you had to go to prior to going into the combat zone, which in my era was Vietnam. All of us had to go there. We were all, in essence — every one of us was waterboarded. It is torture.


KING: What was it like?


VENTURA:  It’s drowning. It gives you the complete sensation that you are drowning. It is no good, because you — I’ll put it to you this way, you give me a waterboard, Dick Cheney and one hour, and I’ll have him confess to the Sharon Tate murders.


Let’s just repeat that:  “I would prosecute the people that ordered it. Because torture is against the law.”  That is the crux of the case for investigations and prosecutions.  That’s it.  Can anyone find a “liberal” or ideological argument anywhere in what Ventura said?  It’s about as far from a partisan or “leftist” idea as one can get.  Yet our establishment media has succeeded (as Digby recently argued) in converting this view into a “Hard Left,” “liberal” or “partisan” argument because that’s the only prism through which they can understand anything, and that’s their time-honored instrument for demonizing any idea that threatens their institutional prerogatives and orthodoxies (only the Hard Left favors this).


Ventura himself, like the argument he’s advocating, is also about as far from being a “leftist” or partisan as it gets.  He was elected Governor of Minnesota by running as the ultimate non-partisan, as a poorly-funded independent who defeated both the GOP and Democratic establishment candidates on a largely libertarian platform and on what he called “fiscal conservatism,” including large tax rebates.   Unlike the establishment-revering, prosecution-opposing pundits who are the true partisans — loyal spokespeople who fiercely defend Beltway culture and legal immunity for political elites above all else — Ventura is doing nothing more than expressing definitively independent and non-ideological political principles, ones that were quite obviously ingrained in him over the course of decades as an American and a veteran:  torture is wrong in all cases; it is illegal; and those who do it should therefore be prosecuted.


Former aide to Condoleezza Rice and former 9/11 Commission Executive Director Philip Zelikow yesterday became the latest to join Ventura by calling for investigations into torture, telling Laura Rozen:  “When there is this kind of collective failure, we need to learn from what happened.”  Gen. Barry McCaffrey two weeks ago pointed out that numerous detainees were “murdered” in U.S. custody — which is unquestionably true — and called for criminal investigations of the top-level political officials who sanctioned torture.  Gen. Antonio Taguba previously stated that “there is no longer any doubt as to whether the current administration has committed war crimes.  The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”  Colin Powell’s former Chief of Staff, retired U.S. Army Col. Larry Wilkerson, this month endorsed both investigations and prosecutions for Bush officials who broke the law.  Bush 41 ambassador Thomas Pickering and Reagan-appointed FBI Director William Sessions wrote in The Washington Post that an independent investigation was a pre-requisite to moving beyond the torture era.  Ronald Reagan vehemently insisted that torture is inexcusable in all cases — no exceptions — and that those who do it must be prosecuted.


These are the people — Gen. McCaffrey, Gen. Taguba, Col. Wilkerson, Philip Zelikow, Jesse Ventura, Ambassador Pickering, Director Sessions — that our little David Ignatiuses deceitfully dismiss as “liberal score-settlers” and that our David Broders and Jon Barrys accuse of lying by masking their Hard Left thirst for partisan vengeance with false pretenses about a belief in the rule of law and contrived disgust at torture.   Our media stars have a script from which they mindlessly read — anyone who believes that political leaders should be held accountable for serious crimes must be a member of the “Hard Left” when the lawbreaking political leaders in question are Republicans — and they recite it over and over no much how evidence piles up in front of their noses proving how untrue it is.


Our media stars accuse everyone with any actual beliefs — and especially any beliefs that deviate from Beltway establishment orthodoxy — of being motivated by ugly “partisan” impulses because that’s the only way they are capable of seeing the world.  It’s the ultimate act of projection.  That’s how the most non-ideological and non-partisan principles (e.g.: government leaders who commit serious crimes should be held accountable; torture is wrong; Presidents shouldn’t eavesdrop on Americans without warrants where the law makes doing so a felony) are transformed into partisan, “ideological” views of the Hard Left, even when they are plainly nothing of the sort.  As commenter DCLaw1 wrote in explaining the media’s sudden obsession this week with whether Nancy Pelosi was briefed on the CIA’s interrogation program even though that issue has been known for years:



I want to point out that the main reason, if not the only reason, for this overwhelming media view is because the only lens through which they can see this issue – like every issue – is the Republican/Democrat or conservative/liberal lens. When one’s entire point of reference for even issues of egregious lawbreaking goes no further than fixating obsessively over the identity of the people and parties to the “controversy” and the issue’s putative effect on partisan politics, whether a leader of one party was informed of the crimes of the other takes on a meaning perversely greater than the evil of the underlying conduct itself.


Our establishment media simply cannot get beyond this stultifyingly narrow framework. It is pathological. Additionally, this staunch avoidance of anything approaching a substantive assessment of the actual illegal conduct, in favor of a petty fixation on the partisan “helps or harms” game, helps only the “side” that has committed the crimes and wrongdoing. No wonder our discourse is so unbelievably misshapen.


Few things better illustrate how warped our political discourse is than the media’s claim that advocating investigations and prosecutions for political lawbreakers who commit serious crimes, who torture, who illegally spy on Americans with no warrants, is the province of partisans on the “Hard Left,” even when people who are as far away from that as possible prominently advocate exactly that.


* * * * *


Beltway mavens are eager to declare that the torture controversy is ending, but these crimes are far too significant to sweep under the rug, no matter how unified the political and media establishments are in that effort.  In addition to the Ventura interview and the Zelikow call for investigations yesterday, here are some headlines just from the last 24 hours:


Interrogation Probe Should Include Congressional Leaders, Hoyer Says


US lawmakers to hear from Bush ‘torture’ dissenter


Top US Democrat under fire over ‘torture’ briefings


US lawmaker: Public needs all facts on alleged torture


Ire Over a Columnist, an Author of Torture Memos


Speaker Under Fire on Torture (“With a series of torture investigations already in the works . . . the issue simply isn’t going away“).


It’s difficult to avoid the conclusion that the President’s apparent contemplation of reversing himself on whether to release 60 new photographs showing brutal American abuse of detainees (outside of Abu Ghraib) is part of an effort to tamp down what is still, quite obviously, the growing political pressure not to simply “move beyond” the serious crimes that were committed.


* * * * *


The call for prosecutions from the newest member of America’s rapidly growing Hard Left:



 


 




Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy“, examines the Bush legacy.

Waterboarding the Rule of Law April 29, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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 rule-of-law-david-bromley

by: Steve Weissman, t r u t h o u t | Perspective

Asked what he thought of Western civilization, the nonviolent Mahatma Gandhi famously replied, “I think it would be a good idea.” Unless millions of Americans now demand better, we can say the same of “the rule of law.” What a good idea it would have been, but – like the tooth fairy – it will not exist, not when competing priorities get in the way. The balancing – and trimming – is well on its way.

    Should a special prosecutor hold Bush, Cheney, Rice and Rumsfeld accountable for violating the law against torture when they specifically authorized waterboarding, sleep deprivation, stress positions and sexual humiliation of detainees? “No one is above the law,” President Obama repeatedly tells us. But, prosecuting Bush & Co. would tear the country apart, the Republican chorus chimes in. And it would create a precedent for prosecuting future presidents whose policies we might not like, just as in a banana republic.

    Should Congress or a truth commission investigate torture and other war crimes so they will never happen again? Better not, the White House tells us. The country needs to look ahead and not to the past, and the administration needs to focus on fixing the economy and creating a universal health care system.

    Should Congress impeach former Deputy Attorney General Jay Bybee, now a federal appeals court judge, for giving his superiors the legal arguments they wanted to justify the torture they had already decided upon? Absolutely not, his defenders insist. Lawyers must feel free to give officials their best legal advice, and officials must feel free to get the legal advice they need.

    None of these alternative priorities are trivial. America should never criminalize differences over lawful policies. Obama and his administration should focus on ending the economic crisis and fulfilling his campaign promises. And senior officials should feel free to consult with government lawyers. But all these priorities must remain within legal limits, and none of them justify giving a pass to those who commit criminal acts, no matter how high their office. Either we uphold the rule of law or we make political priorities paramount. We cannot have it both ways, and we should stop pretending that we can.

    The stakes here go far beyond whether or not we torture our enemies, our suspected enemies and then our own people, though these are obviously life-and-death concerns. What should scare us even more is whether or not we maintain even the façade of democracy.

    In overriding the Geneva Conventions, other treaty obligations and American laws banning torture, the Bush administration explicitly claimed that the president could do whatever he thought necessary to full his constitutional obligation to defend the country. He was the decider in chief, and neither Congress nor the courts could overrule his decision. As Jay Bybee’s torture memo put it, “the President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces.”

    Right-wing legal ideologues call this view of sweeping and unchecked presidential power “a strong unified presidency.” Those who believe in it would turn our chief executive into an elected monarch, and some proponents would even grant him or her the right to call off elections in time of crisis, real or contrived. Following this grandiose view, President Bush usurped powers that the Constitution does not permit, and his administration used those powers to commit other crimes, from torture to invading Iraq on a pack of lies. Do we prosecute Bush’s power grab as a criminal violation of the Constitution? Or, do we accept a crime bordering on treason as just another policy decision with which we may or may not disagree?

    Either way, we set a precedent. Prosecute Bush, Cheney, Rice and Rumsfeld and we confirm that every future leader must operate within the rule of law. Give them a pass and their successors will feel free to rule as they will. The choice is clear, if only Americans have the courage to pursue it. My guess is that we do not, and that we will soon come to rue it.

»


A veteran of the Berkeley Free Speech Movement and the New Left monthly Ramparts, Steve Weissman lived for many years in London, working as a magazine writer and television producer. He now lives and works in France.

What if Instead of the Nuremberg Trials There Was Only a Truth Commission? April 29, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Dick Cheney, George W. Bush, Torture.
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by Jeremy Scahill

Representatives John Conyers and Jerrold Nadler are officially asking Attorney General Eric Holder to appoint an independent Special Prosecutor “to investigate and, where appropriate, prosecute” participants in the Bush-era US torture system. “A Special Counsel is the most appropriate way to handle this matter,” Nadler said. “It would remove from the process any question that the investigation was subject to political pressure, and it would preempt any perceptions of conflict of interest within the Justice Department, which produced the torture memos.” But, as Politico reports, “Holder is likely to reject that request – his boss, the president, has indicated he doesn’t see the need for such a prosecutor.” The Democratic Leadership, particularly Obama, Senate Majority Leader Harry Reid and Sen. Diane Feinstein have pushed for secret, closed-door hearings in the Senate Intelligence Committee. Other Democrats, like Patrick Leahy, advocate establishing a Truth Commission, though that is not gaining any momentum. The fact remains that some powerful Democrats knew that the torture was happening and didn’t make a public peep in opposition.

This week, Lawrence Wilkerson, the former chief of staff to Secretary of State Colin Powell came out in favor of prosecutions of “the decision-makers and their closest advisors (particularly the ones among the latter who may, on their own, have twisted the dagger a little deeper in Caesar’s prostrate body – Rumsfeld and Feith for instance). Appoint a special prosecutor such as Fitzgerald, armed to the teeth, and give him or her carte blanche. Play the treatment of any intermediaries – that is, between the grunts on the ground and the Oval – as the law allows and the results demand.”

Wilkerson, though, understands Washington. “Is there the political will to carry either of these recommendations to meaningful consequences?” he wrote to the Huffington Post. “No, and there won’t be.”

As of now, Conyers and Nadler aren’t exactly looking for over-flow space for their meetings on how to get criminal prosecutions going.

Officially joining the anti-accountability camp this week was The Washington Post‘s David Broder who wrote this gem in defense of the Bush administration: “The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places – the White House, the intelligence agencies and the Justice Department – by the proper officials.” (For a great response to this, check out Scott Horton). Broder is urging Obama to “stick to his guns” in standing up to pressure “to change his mind about closing the books on the ‘torture’ policies of the past.” Don’t you love how Broder puts torture in quotes? I really wonder how Broder would describe it if he was waterboarded (and survived). Can’t you just imagine him making the little quote motion with his hands? Broder’s Washington Post column was titled “Stop Scapegoating: Obama Should Stand Against Prosecutions:”

[Obama was] right to declare that there should be no prosecution of those who carried out what had been the policy of the United States government. And he was right when he sent out his chief of staff, Rahm Emanuel, to declare that the same amnesty should apply to the lawyers and bureaucrats who devised and justified the Bush administration practices.But now Obama is being lobbied by politicians and voters who want something more – the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps – or, at least, careers and reputations.

Their argument is that without identifying and punishing the perpetrators, there can be no accountability – and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.

Obama has opposed even the blandest form of investigation, a so-called truth commission, and has shown himself willing to confront this kind of populist anger.

Thank goodness we have a president who opposes “even the blandest form of investigation”-how uncouth such savagery would prove to be. While the elite Washington press corp works hard to make sure things don’t get too uncomfortable at the wine and cheese cocktail parties, some liberal journalists are also making the case against a special prosecutor (or at least the immediate appointment of one). Last week it was Elizabeth de la Vega, who made an interesting case for waiting to prosecute while evidence is gathered:

We must have a prosecution eventually, but we are not legally required to publicly initiate it now and we should not, as justifiable as it is. I’m not concerned about political fallout. What’s good or bad for either party has no legitimate place in this calculus. My sole consideration is litigation strategy: I want us to succeed.

This week it is Mother Jones Washington editor David Corn, who comes out in favor of a congressional investigation “that placed a premium on public disclosure” or “an independent commission.” Corn describes how he recently warned a Congressmember who supports the appointment of a Special Prosecutor, “That’s not necessarily a good idea.” Corn talks about how a coalition of groups from the Center for Constitutional Rights and the ACLU to Democrats.com and MoveOn.org have all petitioned for a prosecutor:

These liberals all want to see alleged Bush administration wrongdoing exposed. But there’s one problem with a special prosecutor: it’s not his job to expose wrongdoing. A special prosecutor does dig up facts-but only in order to prosecute a possible crime. His mission is not to shine light on misdeeds, unless it is part of a prosecution. In many cases, a prosecutor’s investigation does not produce any prosecutions. Sometimes, it leads only to a limited prosecution.That’s what happened with Patrick Fitzgerald. He could not share with the public all that he had discovered about the involvement of Bush, Cheney, Karl Rove, and other officials in the CIA leak case… A special prosecutor, it turns out, is a rather imperfect vehicle for revealing the full truth.

[...]

Prosecuting government officials for providing legal opinions that greenlighted waterboarding and the like would pose its own legal challenges. Could a government prosecutor indict the government lawyers who composed and signed the torture memos for aiding and abetting torture without indicting the government employees who actually committed the torture? (President Barack Obama has pledged that the interrogators will not be pursued.) And could a prosecutor win cases in which his targets would obviously argue that they were providing what they believed was good-faith legal advice, even if it turned out that their advice was wrong?… Several lawyers I’ve consulted have said that a criminal case against the authors of these memos would be no slam dunk. One possible scenario is that a special prosecutor would investigate, find out that sordid maneuvering occurred at the highest levels of the Bush-Cheney administration, and then conclude that he or she did not have a strong enough legal case to warrant criminal indictments and trials.

The bottom line: Anyone who wants the full truth to come out about the Bush-Cheney administration’s use of these interrogation practices cannot count on a special prosecutor.

Corn’s advice to that unnamed Democratic Congressmember wasn’t exactly well received by lawyers who have been pushing for prosecutions. Perhaps the most passionate advocate for the appointment of an independent Special Prosecutor right now is Michael Ratner, the president of the Center for Constitutional Rights.

“To argue that we should not have prosecutions because it won’t bring out all the facts when taken to its logical conclusion would mean never prosecuting any official no matter the seriousness of the crimes,” Ratner told me. “Right now is not the time to be backing off on prosecutions. Why are prosecutions of torturers ok for other non-western countries but not for the US?  Prosecution is necessary to deter torture in the future and send a message to ourselves and the rest of the world that the  seven or eight year torture program was unlawful and must not happen again. The purpose of prosecutions is to investigate and get convictions so that officials in the future will not again dispense with the prohibition on torture.”

Constitutional Law expert Scott Horton says that the problems with a Special Prosecutor Corn lays out are “correct, but he makes the latent assumption that it’s either/or.  That’s absurd.  Obviously it should be both a commission and one or more prosecutors as crimes are identified.”

Jameel Jaffer, one of the leading ACLU attorneys responsible for getting the torture memos released by the Obama administration, agrees with Horton. “I don’t think we should have to choose between a criminal investigation and a congressional inquiry,” Jaffer told me. “A congressional committee could examine the roots of the torture program and recommend legislative reform to prevent gross human rights abuses by future administrations. At the same time, a Justice Department investigation could investigate issues of criminal responsibility. One shouldn’t foreclose the other.”

Jaffer adds, “It might be a different story if we thought that Congress would need to offer immunity in exchange for testimony.  But many of the key players – including John Yoo, George Tenet, and Dick Cheney – have made clear that they have no qualms about talking publicly about their actions (Yoo and Tenet have both written books, and Cheney is writing one now).”

The bottom line, Ratner argues, is that “prosecutions will bring out facts.” He cites the example of the Nuremberg Tribunals:

What if we had had a truth commission and no prosecutions?  Right now we have many means of getting the facts: FOIA, congressional investigations such as the Senate Armed Services Report, former interrogators, document releases by the Executive. There are plenty of ways to get information even if it does not all come out in prosecutions. Many of the calls to not prosecute are by those, particularly inside the beltway, who cannot imagine Bush, Cheney et al. in the dock or by those who accept the argument that the torture conspirators were trying their best. This is not a time to hold back on the demand that is required by law and fact: appoint a special prosecutor.

David Swanson, who for years has pushed for prosecutions of Bush administration officials, was one of the organizers of the petitions calling for the appointment of a Special Prosecutor. “My top priority is not ‘truth,'” he said. “My top priority is changing the current truth, which is that we don’t have the nerve and decency to enforce our laws against powerful people.”

Jeremy Scahill is the author of the New York Times bestseller Blackwater: The Rise of the World’s Most Powerful Mercenary Army. He is currently a Puffin Foundation Writing Fellow at the Nation Institute.

Looking Forward to What, Mr. President? April 24, 2009

Posted by rogerhollander in About Barack Obama, About Justice, About War, Barack Obama, Criminal Justice, Human Rights, Iraq and Afghanistan, Israel, Gaza & Middle East, Pakistan, Torture, War.
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Roger Hollander, www.rogerhollander.com, April 24, 2009

 

O.K.  Let’s for a moment entertain the president’s thesis.  The problems facing the country are enormous.  No one can deny that.  Are they that critical, however, so as to justify ignoring the prosecution of those responsible for war crimes and violations of the United States Constitution of the gravest nature?

 

Since this is hypothetical I am willing for the moment to grant the president his argument: to wit, the need for the government to attend to critical matters is so vital that at the very least investigations and prosecutions of the Bush era crimes have to be put off.  In other words, as the president has put it, we need to look forward not backwards.

 

(There are those supporters of the president’s position who allege that those who are screaming for investigation and prosecutions are extreme leftists, partisan, out for revenge, etc.  There arguments are too facile and prima facie ridiculous to merit a response.  All I am granting here for the sake of argument is the hypothesis that it is in the country’s interest to attend to matters other than the Bush era crimes.)

 

What then, are we “looking forward” to?

 

In foreign policy the president has made a promise about withdrawal from Iraq that is so full of loopholes and caveats that any serious analysis cannot but conclude that the generals will have there way and the U.S. military presence, supported by an army of mercenaries, dozens of military bases, combat troops operating under a different name, and the largest embassy in the history of the world, will be extended indefinitely.  The president has gone ahead with a major escalation of the futile aggression in Afghanistan along with an escalation of the bombarding border areas of Pakistan with unmanned drone missiles.  His generals have assured him that the value of the “military gains” will outweigh the recruiting boon to al qaeda and the Taliban (who as we speak are marching towards Kabul) that results from the massive killing of civilians (the ghost of light-at-the-end-of-the-tunnel-troops-home-for-Christmas General Westmoreland lives on)  .  With respect to the Middle East, so far President Obama has followed the Bush agenda to a tee, with uncritical support of Israeli aggression in the Gaza Strip.  Whether he has the guts to stare down Netanyahu with respect to the latter’s threats to attack Iran remains to be seen.

 

On the home front looms the largest economic crisis since the Great Depression, the catalyst of which was the sub-prime mortgage scandal and the massive Ponzi schemes that the banks (banksters) and finance industry have run with toxic illegal loans and the unregulated derivatives market.  The president has put in charge of dealing with the crisis the very team (Geithner, Summers, Rubin) that created it and is throwing taxpayers monies down the same Black Hole created by George Bush, known as the Toxic Assets Relief Program (TARP), the premise of which is that bad debts equal money.  The “relief” goes to the Wall Street mafia while the nations’ mortgage defaults and employment goes through the ceiling.

 

In one of the country’s other most critical issues, that of health care reform, a major plank in the president’s campaign platform, the president apparently has reneged on his previous support for a single-payer national program (similar in theory and practice to Medicare), which he now tells us is “off the table.”  This can be considered as nothing less than sacrificing the national interest by caving in to the bloated blood-sucking private health care industry.

 

Well, Mr. President, I have gone along with you in agreeing on the seriousness of the problems facing our nation; but if what you have shown us about how you intend to deal with them is your justification for putting aside taking steps to achieve JUSTICE (and restore a semblance of respect for the rule of law) for the most heinous of war crimes and constitutional violations, then you have failed miserably to make your case.

 

You can count me out, and despite the psychotic-like ranting and ravings of the radical right (to which you have not stood up) and a mainstream media that has its collective head in the sand, I believe that I am part of a rapidly growing soon to be majority.

 

Someone, Mr. President, perhaps it was you, once quoted FDR telling those who were crying for radical reform to “make me do it.”  Well, Mr. President, do it.

Media Behavior and the Torture ‘Debate’ April 24, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Media, Torture.
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Three Key Rules of Media Behavior Shape Their Discussions

of “the ‘Torture’ Debate”

by Glenn Greenwald

Karl Rove on torture prosecutions:

It is now clear that the Obama White House didn’t think before it tried to appease the hard left of the Democratic Party.

Gloria Borger on Karl Rove:

When Rove speaks, the political class pays attention — usually with good reason.

Chuck Todd on Obama’s concession that the DOJ decides whether to prosecute:

There does seem to be a little bit of a reaction to how this was received on the left. . . frankly this feels like a political food fight now. . .. The hard left, the hard right, fighting over this in the blogosphere.

Chris Matthews on the same topic:

This whole torture debate is likely to tell us a lot about the kind of president Barack Obama intends to be. Will he buckle to the left, the netroots, and pursue an investigation into torture having said he didn’t want to? Or will he go post-partisan and leave the past to the historians?

David Gregory on what he calls (with scare quotes) “the politics of the ‘torture’ debate”:

What [Obama officials] got on their hands is a highly politicized and very partisan issue about the treatment of 9/11 prisoners.  . . . At a time when the administration and the President will already be under scrutiny for being tough enough, is this a fight they really want to have?  I would also point you to, if you haven’t see this already, the Wall St. Journal Editorial Page today, which I think raises some really tough points about not only what signal you’re sending to the rest of the world, but also to potential Terrorists out there, about just what it is that U.S. interrogators would do and not do, but also the point that’s raised there is:  did the Bush administration go out of its way to make sure they were adhering to the law and not crossing over that bridge when it came to getting into torture?

(By the way:  can someone tell me what a “9/11 prisoner” is?; and is there anything less surprising than the fact that Gregory looks to The Wall St. Journal Editorial Page for guidance on such questions?)

* * * * * 

For years, media stars ignored the fact that our Government was chronically breaking the law and systematically torturing detainees (look at this extremely detailed exposé by The Washington Post‘s Dana Priest and Barton Gellman from December, 2002 to get a sense for how much we’ve known about all of this and for how long we’ve known it).  Now that the sheer criminality of this conduct, really for the first time, has exploded into mainstream political debates as a result of the OLC memos, media stars are forced to address it.  Exactly as one would expect, they are closing ranks, demanding (as always) that their big powerful political-official-friends and their elite institutions not be subject to the dirty instruments that are meant only for the masses — things like the rule of law, investigations, prosecutions, and accountability when they abuse their power.

The rules for how media stars behave are vividly evident as they finally take part in what they are calling The ‘Torture’ Debate.  Here are three key rules for Beltway media behavior that, as always, are shaping what they say and do:

 

(1) Any policy that Beltway elites dislike is demonized as coming from “the Left” or — in this case (following Karl Rove) — the “hard Left.”  Media stars recite that claim regardless of how widely accepted the belief is in American public opinion and regardless of whether there is anything “leftist” about the view in question.  For years, withdrawing from Iraq was demonized as the view of the “left” even though large majorities of Americans favored it.  

Identically, roughly 40% of Americans favor criminal prosecutions for Bush officials — even before release of the OLC memos — and large majorities favor investigations generally.  The premise of those who advocate prosecutions is the definitively non-ideological view that political elites should be treated exactly like ordinary Americans when they break the law and commit serious crimes.  Individuals such as Gen. Antonio Taguba, Gen. Barry McCaffrey and former CIA officer Robert Baer advocate investigations and/or prosecutions of Bush officials.  But no matter:  the Beltway opposes the idea, and it is therefore dismissed by media stars as coming from the “Hard Left.” 

 

(2) Nobody is more opposed to transparency and disclosure of government secrets than establishment “journalists.”  Richard Cohen wrote of the Lewis Libby prosecution: “it is often best to keep the lights off.”  ABC News’ Peggy Noonan said this week of torture investigations:  “Some things in life need to be mysterious.  Sometimes you need to just keep walking.”  The Washington Post‘s David Ignatius, condemning Obama for releasing the OLC memos, warned:  “the country is fighting a war, and it needs to take care that the sunlight of exposure doesn’t blind its shadow warriors.”  And the favorite mantra of media stars and Beltway mavens everywhere — Look Forward, Not Backwards — is nothing but a plea that extreme government crimes remain concealed and unexamined.

This remains the single most notable and revealing fact of American political life:  that (with some very important exceptions) those most devoted to maintaining and advocating government secrecy is our journalist class, of all people.  It would be as if the leading proponents of cigarette smoking were physicians, or those most vocally touting the virtues of illiteracy were school teachers.  Nothing proves the true function of these media stars as government spokespeople more than their eagerness to shield government actions from examination and demand that government criminality not be punished.

 

(3) The single most sacred Beltway belief is that elites are exempt from the rule of law.  Amidst all the talk about how prosecutions would destroy post-partisan harmony and whether torture “works,” it is virtually impossible to find any media star discussions about the fact that torture is illegal and that those who order, authorize or engage in torture are committing felonies.  That is because — other than for fun sex scandals and other Blagojevich-like sensationalistic acts — the overriding belief of the political class is that elites (such as themselves) have the right to break the law and not be held accountable. 

Amazingly, when it comes to crimes by ordinary Americans, being “tough on crime” is a virtually nonnegotiable prerequisite to being Serious, but when it comes to political officials who commit crimes in the exercise of their power, absolute leniency is the mandated belief upon pain of being dismissed as “shrill” and extremist.  Can anyone find an establishment media pundit anywhere — just one — who is advocating that Bush officials who broke the law be held accountable under our laws?  That view seems actively excluded from establishment media discussions.  

 

The OLC memos that were released last week reflect a deeply corrupted, criminal and morally depraved political class (see this video clip for a strangely affecting demonstration of that fact – linked fixed), but our media stars are a vital reason why that has happened.  It cannot be overstated the extent to which they are nothing but appendages of, servants to, political power (as one Twitter commentator said today about this painfully vapid video from the painfully vapid David Gregory:  when media stars say “my reporting,” what they usually mean is: “this is what I was told to repeat”).  These three media rules repeatedly shape how they talk about government actions, and these rules are particularly pronounced as the establishment media now is finally forced to discuss what to do about the fact that our highest political leaders repeatedly broke our most serious laws.

* * * * *

As a testament to the positive effect media criticisms can have, Columbia Journalism Review‘s Charles Kaiser has been tenaciously criticizing The New York Times for failing to challenge — and instead mindlessly adopting — the claim of Bush officials that torture “worked” by producing valuable intelligence.  Yesterday, a NYT Editor told Kaiser that he agreed that more attention needed to be paid to this issue, and today, the NYT published a very potent Op-Ed from an FBI interrogator at Guantanamo who aggressively disputes the claim that torture “worked.”

Also:   I’ll be on Warren Onley’s To the Point program today at 2:10 p.m. EST (along with The New Yorker‘s Jane Mayer and National Review‘s Cliff May) to debate the question of investigations and prosecutions.  Local listings and live audio feed can be found here (the segment will be posted to their website later today).

* * * * *

UPDATE:  As the recent debate-changing discovery of Marcy Wheeler demonstrated, one extremely important way to improve media coverage of these issues is to have independent journalists able to work on them.  Marcy has long been one of the hardest-working and most important writers on these matters, yet has been doing it all for free, as a side hobby before and after her full-time job.  FireDogLake is now attempting to raise funds to hire Marcy to enable her to work on her investigative journalism full-time.  For those able to do so, contributing to that fund is something I’d highly recommend.  That can be done here.

 

UPDATE II:  The link to the video I referenced above was wrong; the correct link is here.  In addition to Generals Taguba and McCaffrey, the Hard Left has another new member:  Sheperd Smith (here and here).  And Greg Sargent makes a key point:  whether torture “worked” is, among other things, entirely irrelevant.  As I pointed out more times than I can count during discussions of the warrantless eavesdropping debates, we don’t have a country where political leaders are free to commit crimes and then, afterwards, claim that their doing so produced good outcomes.

 

UPDATE III:  The Atlantic‘s Ta-Nehisi Coates posts video of the Peggy Noonan comments and writes

The job of journalists is to challenge the government and to challenge their readers and viewers. What sort of journalist tells his readers that some things must be mysterious?  What sort of writer tells her readers, and viewers, essentially, to not ask too many questions? We have a fine era, when otherwise respected, intelligent, and well-read people step on a national stage and endorse national ignorance.

There’s nothing unusual about Noonan’s mentality; it’s the dominant mindset of our political and media class.  The American Prospect‘s Adam Serwer notes a column from The New York Times‘ Roger Cohen today arguing against prosecutions (of course) and observes:

Cohen’s argument simply reflects the consensus among certain journalistic and political elites that the powerful simply shouldn’t be held accountable when they make mistakes, because, after all, we all make mistakes. This compassionate attitude naturally doesn’t extend beyond this small group. America has the highest incarceration rate in the world, fully 1 percent of the population. I’m sure there are millions of people currently incarcerated who would like it if Cohen’s policy of absolution for crimes was extended to them.

That elite-protecting consensus is the central affliction of America’s political culture.  It explains not only how we continuously shield our elites from the consequences of their crimes, but also explains the reason such crimes keep happening.  If you constantly announce to a small group of people that they will be able to break the law with impunity, you are rendering inevitable future rampant criminality. That’s just obvious.

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy“, examines the Bush legacy.

Are leading Democrats Afraid of a Special Prosecutor to Investigate Torture? April 24, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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by Jeremy Scahill

There are not exactly throngs of Democratic Congressmembers beating down the doors of the Justice Department demanding that Attorney General Eric Holder appoint a special Independent Prosecutor to investigate torture and other crimes. And now it seems that whatever Congress does in the near term won’t even be open to the public. Senate Majority Leader Harry Reid (D-NV) said this week that he prefers that the Senate Intelligence Committee hold private hearings. The chair of the committee, Sen. Dianne Feinstein, has asked the White House not to take any action until this private affair is concluded. She estimates that will take 6-8 months.

“I think it would be very unwise, from my perspective, to start having commissions, boards, tribunals, until we find out what the facts are,” Reid said Wednesday. “I don’t know a better way of getting the facts than through the intelligence committee.” It is hard to imagine other Democrats bucking Reid on this and there is certainly no guarantee that the committee will release an unclassified report when it concludes its private inquiry. While Representative John Conyers says he will hold hearings, that is not the same as the independent criminal investigation this situation warrants.

Then there is the deeply flawed plan coming from the other influential camp in the Democratic leadership. The alternative being offered is not an independent special prosecutor, but rather a more politically palatable counter-proposal for creating a bi-partisan commission. This is a very problematic approach (as I have pointed out) for various reasons, including the possibility of immunity offers and a sidelining of actual prosecutions. Michael Ratner from the Center for Constitutional Rights has also advocated against this, saying this week it will lead to a “whitewash:”

We have reached a critical political moment on this issue. Obama has been forced or pushed to open the door to prosecutions, an opening I thought would take much longer to achieve. If there was ever a time to push that door open wider and demand a special prosecutor it is now. We have documented and open admissions of criminality. We have Cheney and Hayden admitting what they approved these techniques; and Cheney saying he would approve waterboarding again. We have the Senate Armed Services Report detailing how the torture program was authored and approved by our highest officials in the White House and employed in Guantanamo, Iraq and Afghanistan. And we have thousands of pages of proof. There is public outrage about the torture program and the media in the U.S. and the world are covered with the U.S. misdeeds.So at this moment, instead of human rights groups getting together and calling for a special prosecutor what do they do? Call for a commission. What this call does and it must be said strongly is take the pressure off what is the growing public push for prosecutions and deflects it into a commission. Outrage that could actually lead to prosecutions is now focused away and into a commission. Think if this list of human rights groups had demanded prosecutions. We would be closer and not farther from the goal.

There are some powerful Democrats who certainly would not want an independent public investigation, particularly those who served on the House and Senate Intelligence Committees when Bush was in power and torture was being ordered and authorized. That’s because in the aftermath of 9/11, some in Congress were briefed on the torture methods in real time and either were silent or, in some cases, supported these brutal tactics or, as some have suggested, possibly encouraged them to be expanded.

While Republicans are flailing to find ways of defending all of this torture and attempting to discredit or marginalize those who speak out against it, it is interesting to note the Op-ed Thursday in The Wall Street Journal by Reprentative Pete Hoekstra, the ranking Republican on the House Permanent Select Committee on Intelligence, called “Congress Knew About the Interrogations.” In the piece where Hoekstra parrots the Dick Cheney blah-blah-blah about torture working, he manages to make an important point:

[M]embers of Congress from both parties have been fully aware of them since the program began in 2002. We believed it was something that had to be done in the aftermath of the 9/11 terrorist attacks to keep our nation safe. After many long and contentious debates, Congress repeatedly approved and funded this program on a bipartisan basis in both Republican and Democratic Congresses.

Hoekstra cites the internal memo written last week by Obama’s Director of National Intelligence, Dennis Blair, to his staff in which Blair said “[h]igh value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa’ida organization that was attacking this country.” (This was the memo that was originally released to the public with that sentence conveniently ommitted).

Hoekstra writes:

Members of Congress calling for an investigation of the enhanced interrogation program should remember that such an investigation can’t be a selective review of information, or solely focus on the lawyers who wrote the memos, or the low-level employees who carried out this program. I have asked Mr. Blair to provide me with a list of the dates, locations and names of all members of Congress who attended briefings on enhanced interrogation techniques.

House Minority Leader John Boehner (R-OH) added to this mix by saying that he had seen a partial list of Congressmembers “who were briefed on these interrogation methods and not a word was raised at the time, not one word.”

Among those on the House Intelligence Committee at the time was current House Speaker Nancy Pelosi. She has said, “we were not, I repeat, we were not told that waterboarding or other enhanced methods were used.”

“What they did tell us is that they had some legislative counsel … but not that they would. And that further, further the point was that if and when they would be used they would brief Congress at that time.”

But contrary to Pelosi’s assertion, The Washington Post reported that Pelosi and other Democrats were “given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk:”

Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.

“The briefer was specifically asked if the methods were tough enough,” said a U.S. official who witnessed the exchange.

Momentum Gains in Movement to Impeach Bush Torture Lawyer Turned Federal Judge April 20, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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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.

by Jeremy Scahill

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.

Jeremy Scahill is the author of the New York Times bestseller Blackwater: The Rise of the World’s Most Powerful Mercenary Army. He is currently a Puffin Foundation Writing Fellow at the Nation Institute.

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