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National Archives, Watchdog Demand DOJ Probe Destruction of John Yoo’s Emails February 26, 2010

Posted by rogerhollander in Criminal Justice, Torture.
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(Roger’s note: do we live in a banana republic or what?  Government officials illegally destroy millions of vital records that document criminal activity, and the political/judicial system at best makes half-assed efforts to hold them accountable.  Read the last paragraphs of this article.  When the representative of the Department of Justice was asked by a Congressional Committee if he had made any attempt to recover the missing emails, his response in effect is, don’t worry, we’ve got some of them, i.e. the ones that didn’t go missing.  A classic non-answer answer.  George Orwell would be proud.)

Friday 26 February 2010

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

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(Photo: YooTube; Edited: Lance Page / t r u t h o u t)

The National Archives and a watchdog group sent letters to the Justice Department (DOJ) Thursday demanding an investigation into the destruction of John Yoo’s emails in the summer of 2002, when he and other government attorneys prepared and finalized legal memoranda for the CIA that redefined torture and authorized interrogators to brutalize war on terror detainees.

The Federal Records Act (FRA) requires the preservation of government documents. Records cannot be destroyed unless approved by the National Archives and Records Administration (NARA). According to the DOJ’s web site, emails fall under FRA if they pertain to government business.

Last week, the DOJ’s Office of Professional Responsibility (OPR) released a long-awaited report into the legal work former Office of Legal Counsel (OLC) attorneys Yoo and Jay Bybee did for the Bush administration on torture. Yoo currently works as a law professor at UC Berkeley and Bybee received a lifetime appointment as a federal judge on the Ninth Circuit Court of Appeals.

Legal opinions written by Yoo in August 2002 and signed by Bybee cleared the way for the Bush administration to subject detainees to the near drowning of waterboarding and other brutal treatment at the hands of CIA interrogators.

Waterboarding and some of the other interrogation techniques sanctioned by the Bush administration, such as slamming detainees against walls and depriving them of sleep, have long been considered acts of torture and have been treated and prosecuted as war crimes. However, Yoo – working closely with Bush administration officials – claimed that the techniques did not violate US criminal laws and international treaties forbidding torture.

Further, Yoo asserted that Bush’s presidential powers were virtually unlimited in wartime, even a conflict as vaguely defined as the war on terror.

But Yoo, the report concluded, 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.” OPR investigators deemed this to be a violation of “professional standards” and recommended that Yoo and Bybee be referred to state bar associations where they could have had their law licenses revoked. Career prosecutor David Margolis, however, downgraded the criticism to “poor judgment,” which means the DOJ now won’t make the referral.

The voluminous report noted, however, that while OPR investigtors were initially provided us with a relatively small number of emails, files, and draft documents,” it became “apparent, during the course of our review, that relevant documents were missing…”

OPR “requested and were given direct access to the email and computer records of REDACTED, Yoo, [Deputy Assistant Attorney General Patrick] Philbin, Bybee, and [fomer OLC head Jack] Goldsmith” during the course of the investigation into the creation of the torture memos. But OPR investigators said their probe was “hampered by the loss of Yoo’s and Philbin’s email records.”

OPR investigators said they were told that most of “Yoo’s email records” as well as “Philbin’s email records from July 2002 through August 5, 2002 – the time period in which the Bybee Memo was completed and the Classified Bybee Memo … was created” were deleted and “reportedly” not recoverable. The deleted emails also included other relevant documents the OPR needed to assist its investigation.

In a letter sent Thursday to Jeanette Plante at the DOJ’s Office of Records and Management Policy, Paul Wester, director of the Archives’ modern record program, said, in accordance with federal rules governing the preservation of records, if the “DOJ determines that an unauthorized destruction has occurred, then DOJ needs to submit a report to the [National Archives and Records Administration ..."

Wester requested a response within 30 days. A DOJ spokesperson was unavailable for comment.

The destruction of Yoo's and Philbin's emails also caught the attention of watchdog group Citizens for Responsibility and Ethics in Washington (CREW), which had waged a years-long legal battle with the Bush administration over its destruction of tens of millions of emails and failed efforts to take steps to recover the documents and  preserve others.

Melanie Sloan, CREW's executive director, said Thursday, “given the disappearance of millions of Bush White House emails, we shouldn't be surprised that crucial emails also disappeared from the Bush Justice Department."

“The question now is what is the Attorney General going to do about it?" she said.

Sloan also sent a letter sent to Attorney General Eric Holder Thursday calling for a criminal investigation into the matter, a request that will likely go unfulfilled given the Justice Department's and the Obama administration's unwillingness to further delve into the previous administration's alleged crimes.

She said such an inquiry is warranted, however, and compared the destruction of emails with the CIA's destruction of torture tapes, which led to a criminal investigation and the appointment of a special prosecutor by former Attorney General Michael Mukasey. That probe is ongoing.

"The destruction of emails from high-ranking officials such as Messrs. Yoo and Philbin related to a subject of critical important to the Department of Justice and the nation as a whole clearly violates FRA," Sloan's letter to Holder said.

Indeed, the DOJ's web site said emails are federal records if it:

  1. Documents agreements reached in meetings, telephone conversations, or other E-mail exchanges on substantive matters relating to business processes or activities
  2. Provides comments on or objections to the language on drafts of policy statements or action plans
  3. Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities

The DOJ rules for preserving records also said "the unlawful removal or destruction of federal records" can result in "criminal or civil penalties, fines and/or imprisonment."

Sloan, in her letter to Holder, said, "the apparent failure of the Department of Justice to take any action in the face of knowledge that crucial records had been destroyed reflects a patent disregard of mandatory federal record keeping laws ... Even if Mr. Yoo and Mr. Philbin did not violate their professional obligations by writing the torture memos, they - or others seeking to hide the truth - may have broken the law by deleting their emails."

Last December, CREW and the historical group the National Security Archive announced that they entered into a settlement with the Obama administration over the loss of Bush administration emails.

Under the terms of the agreement, 94 days of missing emails will be restored. That includes emails from the Office of the Vice President that were previously lost and unrecoverable and were subpoenaed by Patrick Fitzgerald, the special prosecutor appointed to probe the unauthorized leak of covert CIA operative Valerie Plame Wilson. This time frame also coincided with litigation surrounding the release of documents related to former Vice President Dick Cheney's Energy Task Force meetings.

The emails will be sent to NARA. But whether they contain answers to lingering questions about the CIA leak or Cheney's energy task force meetings will not be known for years, as the documents will not be immediately available for public view.

Congressional Hearing

The destruction of Yoo's and Philbin's email was raised Friday during a Senate Judiciary Committee hearing, where Acting Deputy Attorney General Gary Grindler is currently testifying about the OPR report.

Judiciary Committee Chairman Patrick Leahy (D-Vermont) asked Grindler whether the Justice Department has taken any steps to try and recover the emails.

Grindler said the report does not "suggest there was anything nefarious" and disclosed that he has spoken with technical staff at the Justice Department to determine what "was going on with the emails."

"If they are retrievable, I will direct [technical staff] to retrieve them,” Grindler told Leahy. However, “the report does include a review of some of Mr. Yoo’s emails. The [OPR] report doesn’t have a complete lack of his emails.”


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. 

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. 

The administration guts its own argument for 9/11 trials November 19, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, War.
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Thursday, Nov 19, 2009 05:20 PST


By Glenn Greenwald

(AP Photo\/Alex Brandon)
Attorney General Eric Holder testifies Wednesday on Capitol Hill before the Senate Judiciary Committee hearing on Justice Department oversight.

(updated below – Update II)

 

“What I’m absolutely clear about is that I have complete confidence in the American people and our legal traditions and the prosecutors, the tough prosecutors from New York who specialize in terrorism” — Barack Obama, yesterday.

“Holder said five other Guantanamo detainees would be tried by military tribunals. The five include Abd al-Rahim al Nashiri, who is accused of masterminding the 2000 attack on the USS Cole warship in Yemen; and Canadian Omar Khadr, accused of killing a U.S. soldier in Afghanistan” — NPR, yesterday.

“‘Administration officials say they expect that as many as 40 of the 215 detainees at Guantanamo will be tried in federal court or military commissions . . . . and about 75 more have been deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material’ . . . If true, that means that there are 75 so-called ‘Fifth Category’ detainees who might be subject to indefinite detention without trial” – The Atlantic‘s Marc Ambinder, yesterday, quoting The Washington Post.

* * * * *

Can anyone reconcile Obama’s homage to “our legal traditions” and his professed faith in jury trials in the New York federal courts with the reality of what his administration is doing:  i.e., denying trials to a large number of detainees, either by putting them before military commissions or simply indefinitely imprisoning them without any process at all?

During his appearance before the Senate Judiciary Committee yesterday, Eric Holder struggled all day to justify his decision to put Khalid Sheikh Mohammed on trial because he has no coherent principle to invoke.  He can’t possibly defend the sanctity of jury trials in our political system — the most potent argument justifying what he did — since he’s the same person who is simultaneously denying trials to Guantanamo detainees by sending them to military commissions and even explicitly promising that some of them will be held without charges of any kind.

Once you endorse the notion that the Government has the right to imprison people not captured on any battlefield without giving them trials — as the Obama administration is doing explicitly and implicitly — what convincing rationale can anyone offer to justify giving Mohammed and other 9/11 defendants a real trial in New York?  If you’re taking the position that military commissions and even indefinite detention are perfectly legitimate tools to imprison people — as Holder has done — then what is the answer to the Right’s objections that Mohammed himself belongs in a military commission?  If the administration believes Omar Khadr belongs in a military commission, and if they believe others can be held indefinitely without any charges, why isn’t that true of Khalid Sheikh Mohammed?  By denying jury trials to a large number of detainees, Obama officials have completely gutted their own case for why they did the right thing in giving Mohammed a trial in New York.

Even worse, Holder was reduced to admitting — even boasting — that this concocted multi-tiered justice system (trials for some, commissions for others, indefinite detention for the rest) enables the Government to pick and choose what level of due process someone gets based on the Government’s assessment as to where and how they’re most likely to get a conviction:

 

Courts and commissions are both essential tools in our fight against terrorism . . . On the same day I sent these five defendants to federal court, I referred five others to be tried in military commissions.  I am a prosecutor, and as a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case with the best law. . . . At the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the American people is a federal court.

Does that remotely sound like a “justice system”?  If you’re accused of being a Terrorist, there’s not one set procedure used to determine your guilt; instead, the Government has a roving bazaar of various processes which it, in its sole discretion, picks for you based on ensuring that it will win.  Even worse, Holder repeatedly assured Senators that the administration would continue to imprison 9/11 defendants even in the very unlikely case that they were acquitted, citing what they previously suggested was their Orwellian authority of so-called “post-acquittal detention powers.”  Is there any better definition of a “show trial” than one in which the defendant has no chance of ever being released even if acquitted, because the Government will simply thereafter assert the power to hold him indefinitely without charges?

I understand that sending even a limited number of Terrorism suspects to federal court is politically difficult and controversial, as the last couple of days have demonstrated.  But by refusing to embrace and defend the core principle of justice at stake here — that a distinguishing feature of our political system is that we don’t imprison or kill people without charging them with a crime and proving their guilt in a real court, and that military commissions and indefinite detention are un-American (which Democrats argued under Bush) — the Obama administration has made it far more difficult for it to defend what it is doing, as well as for those who want to defend their decision to give trials to 9/11 defendants.

To see how that works, here is part of the exchange I had on MSNBC this week with George Pataki, while debating trials for 9/11 defendants:

 

MR. GREENWALD:  If you look at how the British treated the people who did the London subway bombings, the Spanish who treated the people who did the Madrid subway bombings — even India just put on trial the sole surviving terrorist who perpetrated the Mumbai massacre last year. Even Indonesia gave trials in their real cities to the people who blew up the nightclubs in Bali.

It’s only the American conservatives who are feeding the terrorist agenda by saying that we’re too scared to hold trials

MR. RATIGAN: Hold on, Glenn.

MR. PATAKI: Can I respond to that, Dylan? Only the — only the — only the American conservatives? Then tell me why Obama and Holder are using military tribunals against those who blow up Americans in acts of war overseas? They’re just picking these particular terrorists for trial in New York because they blew up civilians in New York. So what their logic is, “Kill thousands of civilians and you can get a civilian trial; kill one or two overseas, and we’re going to use military tribunals.”

That makes no sense.

For those wanting to defend the administration, what’s the answer to that?  The same thing happened when Rep. Nadler, as part of the same segment, tried to defend the Obama administration’s decision to try the 9/11 defendants in New York:

 

REP. NADLER:  I think that our tradition is that people accused of heinous crimes get trials, and they get trials in the area in which the crime is committed, which is right here. And I think it’s exactly the right thing to do. . . .That’s the way it ought to be, and we ought to show the world that we adhere to our traditions of justice and that these terrorists are not going to cause us to abandon the law.

MR. PATAKI: … We are going to use military tribunals. They’re saying they’re perfectly fine for some terrorists, but these terrorists they’re going to try here. What’s the justification for that, Jerry?

REP. NADLER: Well, I — well, I don’t think there is any justification.

MR. PATAKI: I don’t either.

The administration should have the courage of its convictions and defend jury trials as a linchpin of American justice, which would entail giving them to all Terrorism suspects not captured on any battlefield.  But by refusing to do so — by exhibiting the very cowardice of which Holder accused Republicans, i.e. denying Terrorism suspects a trial — the administration has no cogent argument to make in its own defense.  It’s just another case of the administration wanting to bask in the rhetorical glory of “the rule of law” while simultaneously trampling on it for petty political convenience.

 

UPDATE: The blogger Patterico — who, notably, is a prosectuor himself and thus inclined to be empathetic with prosecutorial goals — nonetheless compiles additional evidence to criticize Holder’s decision as follows:

 

You can see that what we have is an administration that is choosing where to try the detainees, not based on some principle or neutral protocol (as they claim), but based on where they can win. They’re rigging the game.

And if they lose, they won’t let him go anyway.

This is just further evidence that the KSM trial will be a show trial.

It’s worth reading the arguments from a prosecutor about why the administration’s conduct is such a breach of basic justice, even as they cynically wrap themselves in the rhetoric of the sanctity of jury trials and the rule of law.

 

UPDATE II:  For a crystal clear refutation of the claim that it’s normal to use military commissions for the crimes at issue here, see this comment from the always-enlightening Pow Wow, which is based on this equally enlightening interview by Marcy Wheeler of Lt. Col (and now-Law Professor) David Frakt, highlighting the numerous myths on which the case for military commissions is predicated.

A Cheney Cover-Up? May 7, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, Torture.
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Someone in the White House tried to deep-six Philip Zelikow’s anti-torture memo. Welcome to the latest Bush-era whodunit.

by Nick Baumann & David Corn

Who in the George W. Bush White House tried to shred a memo challenging the use of torture?

On April 21, Philip Zelikow, who was counselor to Secretary of State Condoleezza Rice during the Bush administration, revealed on Foreign Policy‘s “Shadow Government” blog that he wrote a memo in 2005 disputing the conclusions of Bush Justice Department lawyers that torture was legal. The existence of such a memo was a surprise. But Zelikow also disclosed that the “White House attempted to collect and destroy all copies of my memo.”

This story is not over. Zelikow tells Mother Jones that he doesn’t know for sure who in the White House ordered the suppression of his memo, but he says that his “supposition at the time” was that the office of Vice President Dick Cheney was behind the cover-up. In an email exchange with Mother Jones, Zelikow notes that Cheney’s office did not have the authority to request that his memo be deep-sixed: “They didn’t run the interagency process. Such a request would more likely have come from the White House Counsel’s office or from NSC staff.” But that request did not reach him in written form. “It was conveyed to me, and I ignored it,” Zelikow recalls. But he suspected that Team Cheney was probably behind it.

Zelikow, who is scheduled to testify before a Senate judiciary subcommittee on Tuesday Wednesday, also notes that his memo was not the only one raising questions about the administration’s legal rationale supporting so-called “enhanced interrogation techniques”: “There were a number of papers, mainly arguing for alternative legal frameworks.” But his memo, he adds, was “a more direct assault on [the Bush Justice Department's] own interpretation of American law.”

(UPDATE: The Senate judiciary subcommittee just formally announced the testimony, which will be on Wednesday, not Tuesday, as earlier reports had indicated.)

Congressional Democrats are already seeking any surviving copies of Zelikow’s memo. They might now also want to request these other papers. (No such documents have been declassified or released so far.)

Cheney’s office was reportedly the hub of the Bush administration’s torture program. And Neil Kinkopf, a law professor at Georgia State University, who served in the Clinton administration’s Office of Legal Counsel, notes, “People in the White House—Dick Cheney for example; David Addington, his legal adviser—didn’t want the existence of dissent to be known. It’s not hard to imagine David Addington playing very hardball internal politics and not only wanting to prevail over the view of Zelikow but to annihilate it. It would be perfectly consistent with how he operated.”

Zelikow, who ran the 9/11 Commission before joining the State Department, wrote in his original blog post that he believed the administration had failed to erase the evidence of his dissent: “I expect that one or two [copies of the memo] are still at least in the State Department’s archives.” And four top congressional Democrats on Monday wrote Secretary of State Hillary Clinton [PDF] and Adrienne Thomas, the acting national archivist [PDF], requesting surviving copies of the Zelikow memo.

In their letter to Clinton, the Democrats—Reps. John Conyers, Howard Berman, Jerry Nadler, and Bill Delahunt—ask for a search of the archives that Zelikow believes may contain his memo. But the Dems’ letter to the archivist requests more. In that letter, Conyers and the others request the Zelikow memo along with “[c]opies of any ‘documentary materials’” that “mention or refer to” the Zelikow memorandum or “are related to or reflect any effort by an official of the Bush Administration to collect, destroy, or impede the preservation or retention of this memorandum.” In other words, they are looking for evidence of who attempted to bury Zelikow’s opposing view.

This could even have legal implications. Federal law—including the Presidential Records Act—requires that the White House adhere to strict record-keeping standards. If a White House official tried to disappear an inconvenient memo, he or she might have committed a crime. Concerning the Presidential Records Act, the Bush administration never was a stickler. If millions of emails can disappear, what’s one memo?

The Dems want to get Zelikow’s allegations of a cover-up on the record and under oath, and they will. In his email to Mother Jones, Zelikow says that when he testifies next week he plans to “go through a brief chronology of the various arguments for changing the administration position.” But since Zelikow doesn’t appear to know who attempted to smother his memo, congressional Democrats may have to do some legwork—which could include questioning various Bush White House officials—to solve this latest Bush-era mystery.

Nick Baumann and David Corn are staff correspondents for Mother Jones.

A Real Criminal Investigation of Bush/Cheney; No Truth Commission! March 16, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush.
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By Martin Garbus, Huffington Post. Posted March 9, 2009.

Judges and jurors, not politicians or unelected commission members, should determine whether Bush & Co. broke the law.

It’s really quite simple. Truth and Reconciliation commissions, Congressional committees and blue ribbon commissions like the 9/11 Commission, are not deterrents to torture, illegal surveillance or lawyers on the Justice Department who attempted to justify the torture. They have a very limited function.

But they don’t punish anyone; don’t deter anyone, don’t even put pressure on the people who committed the acts and cannot really get at the truth to determine responsibility. They do not bring the full force of America’s 230 years of law down on the offenders. They don’t truly help rein in the powers of future presidents or defense secretaries who want to do the same or similar acts the next time they react to what they see as an extraordinary crisis. And different presidents, Democrats and Republicans from Woodrow Wilson and the prosecutions during the Red Scare, to Franklin D. Roosevelt and the internment of 110,000 Japanese, Lyndon Johnson, lying about the Gulf of Tonkin and to dramatically increase troop strength, nearly always find crisis and overreact.

Senator Patrick Leahy, the Chairman of the Senate Judiciary Committee, has called at different times for either a Truth and Reconciliation commission or a Blue Ribbon commission. Neither is appropriate.

The best truth and reconciliation model comes from the South African experience. In South Africa, these commissions were used to begin the healing after the brutality of apartheid. It grants the confessing wrongdoers immunity. It was for a different time and place.

The Blue Ribbon commission gets attention and, along with Congressional committees, can get exposures and may help lead to better laws. But they create the danger of interfering and at times making impossible criminal trials of criminals. And they let criminals go unpunished.

Senator Sheldon Whitehouse, a member of both the Judiciary Committee and Intelligence Committees and a former U.S. Attorney, supporting Leahy’s call, said that a torture commission might need the power to immunize witnesses on a case-by-case basis, and “it is beside the point” if it endangers criminal prosecutions.

We should go ahead with criminal prosecutions. It is the only way, through grand juries, subpoenas and trials, to get the facts and help America clean up some of its recent past.

The American people, immersed as they are in the economic crisis, are angry about torture and other illegalities of the Bush administration and want those prosecutions.

The February, 2009 USA Today/Gallup Poll shows 38 percent of Americans favor criminal prosecution of torturers, 38 percent for prosecution of those who used illegal surveillance, and 41 percent for those involved in the subversion of the Justice Department. Americans by a wide margin are in favor of criminal prosecutions than independent or Congressional panels. Seventy-five percent of Americans believe something must be done — we can’t walk away from the crimes against humanity committed in our name.

The argument is made that criminal prosecutions area too difficult, too lengthy, too expensive, too political and will keep the country divided. But there have always been political expensive and difficult trials. We have had long, expensive, political trials for John Dean during Watergate, Eliot Abrams during Iran-Contra, Scooter Libby today and even Aaron Burr nearly two hundred years ago.

Leahy argues against criminal prosecutions because “a failed attempt to prosecute for this conduct might be the worst result of all if it is seen as justifying dishonest actions.” But that’s true for every criminal prosecution — should murderers, John Ehrlichmann, Scooter Libby or Enron officials not be prosecuted because the possibility of an acquittal justifies their actions? If so, junk the criminal system.

We can’t leave it to politicians. Many Democrats, including House Speaker Nancy Pelosi, are alleged to have known about the torture and surveillance programs and either approved or said nothing. Pelosi (who, interestingly, has called for criminal prosecutions) has consistently equivocated on what she knew and when she knew it. It’s unlikely Democrats on commissions, let alone Republicans, are going to pursue the inquiry to its final end. They will undermine Congressional Commissions, and blue ribbon Commissions, but they cannot so easily undermine criminal prosecutions.

The criminal trials of the chief of the Bush defendants can certainly be shorter and probably less expensive than the Barry Bonds or Scooter Libby prosecution, and less purely political than Thomas Jefferson’s presidentially controlled prosecution of Aaron Burr.

The Bush people violated some clear specific crimes. Failing to get wiretaps permission from the Federal Internal Security Courts is a felony. Representatives of the Justice Department, local police and federal agent who participated in break-ins or wiretaps without warrants, are guilty of clear and unambiguous federal crimes. Federal Agents who did illegal surveillance even when the Justice Department refused to sign off on its illegality can be found guilty. Violation of the Federal Anti-Torture Act, which has been on the books for years, bars citizens from committing torture abroad, is a felony.

The War Crimes Act of 1996 is violated even if there is not what the Bush defendants would claim is “torture.” That act punishes those who act cruelly and inhumanely. Waterboarding, vicious dogs, and exposing detainees to temperature extremes could all be punished by a jury.

Bush’s people, afraid of the applicability of the War Crimes Act, inserted a provision into a 2006 law that made the War Crimes Act retroactively ineffective. But Congress can change that now, that law can be used for prosecutions.

The defense will claim, say opponents of criminal trials, that defendants relied on the now infamous August 1, 2002 legal opinion of the Attorney General, Alberto Gonzales, and his assistants justifying torture and the opinions on illegal surveillance creating fog and evasion and therefore, they will get off. And that all the lawyers did was give their albeit controversial opinions, a full defense. Jurors will get confused by legal experts who support the views of the Bush lawyers. It’s too complicated for a jury, we are told.

But we have prosecuted lawyers, experts and those who rely on legal or accounting opinions in many cases. Kenneth Lay could refer to legal or accounting documents prepared to justify his case all day long and not be saved. The legal opinions rendered by Alberto Gonzales, John Yoo and David Addington are such transparent documents that an American jury of citizens is, at the very least entitled to have an opportunity to pass judgment on them. Even as lawyers within the Bush administration repudiated the opinions, the illegal practices went on. No jury would have difficulty in rejecting John Yoo’s memorandum that reject the basic tenets of an American democracy.

Can a jury really decide the tough questions, such as whether Alberto Gonzales’ opinion, concluding the Geneva Convention Protections do not apply to prisoners of war captured for Al Qaeda or the Taliban? Of course. A jury can determine if the legal opinion was a facade to justify actions already taken — only the legal process with grand juries and subpoenas has any hope of piercing the wall of defense that will be used to block that inquiry. Those memos were not used to interpret the law — they were intentionally written to change the law. No Commission can hope to get facts behind these opinions as quickly as the Courts.

Our criminal law has specific status that reach overseas to punish torturers. Section 2340A of our Federal Criminal Code makes it a crime for any person “outside the United States to commit or attempt to commit torture.” But, say the critics of criminal prosecution, torture is too vague a word for a prosecution. Not so. Judges and juries routinely define much vaguer terms – what does “reasonable doubt of guilt” or “reasonable doubt of guilt with a degree of moral certainty.” What does cruel and inhuman treatment mean? They are always past precedents to help us define these terms.

Juries determine competency in cases interpreting wills and estates, and sanity in criminal cases, with the help of experts, whom they often barely understand.

It is wrong to say that lower level officials, or lower level military personnel can get off by claiming they followed higher orders. They did what fellow soldiers did – they followed the morality culture created by their environment and superiors. That’s not a defense. When police officers in Los Angeles, Jackson, or New York beat prisoners, or deny them rights, most know they are violating the laws — they do it nonetheless. And they can be and often are prosecuted.

At times CIA personnel and people within the White House knew with certainty they were acting illegally. When the CIA destroyed at least 92 interrogation tapes to cover up what was done to the detainees, they violated a specific court order that prohibited that destruction.

I don’t have a religious faith in the majesty of the law. It is just the far best alternative.

Is the criminal prosecutors and the process itself often flawed? Of course. At times, are the guilty declared innocent and the innocent declared guilty? Of course. Do conviction make it far less likely that torture will continue? Probably so. Will a string of successful prosecutions ensure that we will never have Americans participate in torture or illegal surveillance? Probably not. Does it make torture and illegal surveillance less likely? Yes.

At the end of the day, I would rather have American jurors, bound by the Constitution and the law, make the decision rather than politicians or unelected blue ribbon commission members. I would rather have the judges, bound by precedent and law, determine what is, and is not legal.

President Obama has said this is not the time to look back but to look forward. There was a claim that the need for bipartisanship argued against prosecution. But the illusion of bipartisanship, if it ever truly existed, has been broken.

President Obama and the Congress should now name a Special Prosecutor.

Release of Memos Fuels Push for Inquiry Into Bush’s Terror-Fighting Policies March 4, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Uncategorized.
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by Charlie Savage and Neil A. Lewis

WASHINGTON – A day after releasing a set of Bush administration opinions that claimed sweeping presidential powers in fighting terrorism, the Obama administration faced new pressure on Tuesday to support a broad inquiry into interrogation, detention, surveillance and other practices under President George W. Bush.

 

[Representative John Conyers Jr. has called for an investigation. (Susan Walsh/Associated Press)]Representative John Conyers Jr. has called for an investigation. (Susan Walsh/Associated Press)

Justice Department officials said they might soon release additional opinions on those subjects. But the disclosure of the nine formerly secret documents fueled calls by lawmakers for an independent commission to investigate and make public what the Bush administration did in the global campaign against terrorism. 

The chairman of the House Judiciary Committee, Representative John Conyers Jr., Democrat of Michigan, said the revelations, together with the release of new information about the Central Intelligence Agency’s destruction of 92 interrogation videotapes, had underscored the need for a commission that would have the power to subpoena documents and testimony.

Officials who discussed the process spoke on the condition of anonymity because memorandums still under review might involve classified information. Among those that have not been disclosed but are believed to exist are a memorandum from the fall of 2001 justifying the National Security Agency’s program of domestic surveillance without warrants and one from the summer of 2002 that listed specific harsh interrogation techniques, including waterboarding, that the C.I.A. was authorized to use.

The Justice Department officials said the decision to release the nine memorandums on Monday came after some of the opinions were sought in a civil lawsuit in California. They said department lawyers had determined that the opinions did not contain classified information.

The lawsuit was filed by Jose Padilla, a United States citizen who was arrested in Chicago in 2002 and detained for years as an enemy combatant before eventually being tried and convicted in a civilian criminal procedure. Mr. Padilla is suing John C. Yoo, a former Bush administration lawyer who was the author of many of the opinions justifying detention and interrogation policies.

The Senate Judiciary Committee has scheduled a hearing on Wednesday on whether to create a commission to look into the Bush administration’s counterterrorism policy. The committee chairman, Senator Patrick J. Leahy, Democrat of Vermont, has already called for a commission, and another Democrat on the panel said Tuesday that he would support such an approach.

But David B. Rivkin Jr., an associate White House counsel under the first President Bush who is scheduled to testify at the hearing on Wednesday, said he planned to urge Congress not to move forward with that proposal, which he said would violate the rights of Bush administration officials and set them up for prosecutions by foreign courts.

“They want to pillory people,” Mr. Rivkin said. “They want to destroy their reputation. They want to drag them through the mud and single them out for foreign prosecutions. And if you get someone in a perjury trap, so much the better.”

President Obama has signaled a reluctance to open a wide-ranging investigation into his predecessor’s policies, saying he preferred to fix the policies and move on. In his first days in office, he issued executive orders requiring strict adherence to rules against torture. As a senator, he voted for legislation that brought surveillance efforts into alignment with federal statutes.

The increased calls for a greater public accounting come as the Justice Department’s internal ethics office is preparing to release a report that is expected to criticize sharply members of the Bush legal team who wrote memorandums purporting to provide legal justification for the use of harsh interrogation methods on detainees despite anti-torture laws and treaties, according to department and Congressional officials.

The Office of Professional Responsibility at the Justice Department is examining whether certain political appointees in the department knowingly signed off on an unreasonable interpretation of the law to provide legal cover for a program sought by Bush White House officials.

The report is expected to focus on three former officials of the Office of Legal Counsel: Mr. Yoo, a Berkeley law professor, now on leave at Chapman University, who was the principal author of opinions on national security matters from 2001 to 2003; Jay S. Bybee, who oversaw the counsel’s office during that period and is now a federal appeals court judge; and Steven G. Bradbury, who oversaw the counsel’s office in Mr. Bush’s second term.

Mr. Bradbury wrote two of the opinions released on Monday. Written last October and this January, they broadly repudiated the aggressive theory of virtually unlimited commander-in-chief power at the heart of Mr. Yoo’s memorandums.

Although he was a critic of Mr. Yoo’s work, Mr. Bradbury himself wrote three memorandums on the use of harsh interrogation techniques in 2005. Those documents are believed to be part of the Office of Professional Responsibility’s investigation.

In a footnote to Mr. Bradbury’s January memorandum that sharply criticized Mr. Yoo’s work, Mr. Bradbury signaled that he did not want a repudiation of Mr. Yoo’s legal reasoning to be used against him as part of the ethics inquiry.

Mr. Bradbury wrote that his retractions were not “intended to suggest in any way that the attorneys involved in the preparation of the opinions in question” violated any “applicable standards of professional responsibility.”

Scott Shane contributed reporting.

Obama please note: Those who fail to ‘master the past’ are guilty, too March 1, 2009

Posted by rogerhollander in Asia, Foreign Policy, Iraq and Afghanistan, Israel, Gaza & Middle East, Latin America, Vietnam, War.
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Japan Times, March 1, 2009, http://search.japantimes.co.jp/cgi-bin/fl20090301rp.html

In “Guilt About the Past,” based on guest lectures that Bernhard Schlink gave at Oxford University last year, the University of Berlin law professor describes the “long shadow” cast by the perpetrators of war crimes on their descendants.

“The act of not renouncing, not judging and not repudiating carries its own guilt with it,” he states in the book published in January by University of Queensland Press.

Last week in this column I discussed issues of guilt and atonement as they relate to Germany and Japan. This week I will examine how concepts of responsibility and self-questioning apply to the United States of America.

U.S. presidents, secretaries of state and defense, and members of Congress are certainly quick to point out perceived human rights’ abuses and political crimes committed in other nations. The assumption is always that the U.S. occupies the moral high ground of human dignity — so allowing Americans to believe in themselves as altruistic and selfless.

OK, they tell themselves, we have made mistakes; but our actions have always stemmed from pure motives. Others’ evil actions are motivated by intolerance and greed; our own regrettable actions are aberrations.

In fact, buried deep in America’s moral high ground are the bones of millions of victims of whom most Americans seem purposefully oblivious.

Schlink speaks of the need to “master the past” — that is, to come to terms with your nation’s crimes through law, atonement and reconciliation for all involved. If Americans wish to avoid repeating the tragic blunders and crimes committed in Vietnam and Iraq (to name just two war zones), they would do well to heed his message:

“Guilt also reaches those who do not actively separate themselves from the perpetrators and participants through dissociation, judgment or repudiation.”

In other words, it is not sufficient to merely “regret” past actions and believe that “looking forward” and “getting the country moving again” are substitutes for atonement. Future generations must, to use Schlink’s term, “master the past” by taking responsibility for it. Americans demand this of others — why not of themselves?

Let’s get specific.

The U.S. is guilty of conducting the most massive campaign of chemical warfare since World War II — far exceeding anything perpetrated by Saddam Hussein against the Kurds of Iraq. Between 1962 and 1970, American planes sprayed the countryside of Vietnam with dioxin in order to defoliate wooded areas its opponents used to hide themselves and their supply routes from aerial observation.

Of the 3 million Vietnamese estimated to have been exposed directly to this dioxin (known in the U.S. as Agent Orange), 1 million are acknowledged to have suffered serious health problems as a consequence. In addition, some 150,000 children have been — and continue to be — born with birth defects attributed to the use of this weapon of mass destruction.

However, all appeals by Vietnamese officials to the U.S. to apologize and pay reparations or compensation have fallen on deaf ears. The U.S. government has awarded up to $1,500 a month to the 10,000 U.S. service personnel adversely affected by Agent Orange. Why hasn’t this been extended to non-American victims?

What is the difference between this and Japan’s discrimination against non-Japanese radiation victims of Hiroshima and Nagasaki? Why are Americans so averse to recognizing guilt for actions toward others?

This tendency to bury, rather than master, the past is all the more conspicuous when crimes are being committed in the present.

The U.S. spearheaded an illegal war, based on false premises, in Iraq, and for the past six years has killed, maimed and traumatized millions of that country’s citizens. Most Americans now consider the war a strategic error. But has anyone in power, even President Barack Obama, who opposed it from the beginning, spoken in terms of guilt and atonement? Do Americans care about the fates of those millions of people whose lives their state’s actions have ruined?

Several weeks ago, Patrick Leahy, chairman of the Senate Judiciary Committee, proposed the establishment of a truth commission to investigate illegal practices by members of the Bush administration. Yet President Obama has repeatedly stated his opposition to this, instead declaring that he wants “to get it right [by] moving forward.”

There’s the political rub. By proposing “change we can believe in,” as Obama has, you emphasize the importance of the future by bypassing serious reflection on the past. It’s as if you go to the PAST file, highlight it and hit the DELETE button. Then you simply create a new file headed NEW IDEALS.

As Schlink puts it, ignoring past crimes has entangles you in them whether you like it or not. He writes:

“The principle is as follows: to not renounce the other includes one in that person’s guilt for past crimes, but so that a new sort of guilt is created. Those in the circle of solidarity who are themselves not guilty through actions of their own, bring about their own guilt when . . . they do not respond by dissociating themselves from those who are guilty.”

For instance, Americans are naturally perturbed by the intense animosity expressed toward them by Iranians — yet they seem ignorant of the fact that their Central Intelligence Agency, together with British intelligence, engineered a coup against Iran’s democratically elected government in 1953. Similarly, if the governments of Venezuela, Bolivia, Nicaragua and Chile have vented criticism against the U.S., wouldn’t it be helpful if Americans were aware of their country’s active intervention in Latin America to subvert the development of democratic processes?

These are old stories. Yet they need to be analyzed not as strategic or tactical errors, but as seriously unethical transgressions.

The Obama ideology of “moving ahead” without attempting to redress past wrongs implicates those in the present all over again. Even as the Obama reboot sweeps the old icons from the screen, Americans would do well to remember that the virus remains deep in the system.

What, then, is to stop them from instigating new fiascoes that result in untold misery and death? The smiling face of President Obama on the screen saver is no protection against the virus.

The era of U.S. exclusivity and pre-emption, so misinterpreted and degraded by George W. Bush and his advisers, is over. This means that Americans will be judged worldwide by the same standard once — and still — applied to Germans and Japanese.

“One deserves to be proud only of what one achieves, not of what one is,” writes Schlink in “Guilt About the Past.”

“Instead of assuring the younger generation that they have the right to be proud or denying them the right, we owe it to them to integrate the past into our collective biography.”

What will be the world’s collective view of post-Bush America? Americans should take a cold hard look at their past, as they so require of others. The world will forgive what is admitted to and atoned for. Without admittance and atonement, there is no moving forward. The positive example of Germany and the negative example of Japan should be ample testimony to that.

Pelosi criticizes Truth Commission as inadequate, advocates criminal prosecutions February 25, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture.
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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.

Senate will advance torture commission February 24, 2009

Posted by rogerhollander in Dick Cheney, George W. Bush, Torture, War.
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Is there a lot America doesn’t know about Bush torture policies? There is, says Sen. Sheldon Whitehouse. “This is going to be big.”

By Mark Benjamin, www.salon.com

Feb. 24, 2009 | WASHINGTON — The Senate Judiciary Committee plans to move forward with a commission to investigate torture during the Bush administration. Committee Chairman Pat Leahy, D-Vt., told Salon Tuesday that his panel would soon announce a hearing to study various commission plans. His staff said the announcement could come as early as Wednesday.

While Michigan Democrat Rep. John Conyers and North Carolina Republican Rep. Walter Jones drafted a bill to create a commission to review abuse of war powers during the Bush administration, Leahy’s Senate commission would represent the first concrete steps toward a broad review of U.S. torture since 9/11.

Spearheading Senate efforts to establish a torture commission is Rhode Island Democrat Sheldon Whitehouse. As a member of both the Judiciary Committee and the Intelligence Committee, Whitehouse is privy to information about interrogations he can’t yet share. Still, regarding a potential torture commission, he told Salon, “I am convinced it is going to happen.” In fact, his fervor on the issue was palpable. When asked if there is a lot the public still does not know about these issues during the Bush administration, his eyes grew large and he nodded slowly. “Stay on this,” he said. “This is going to be big.”

Whitehouse admitted he had not discussed the plan yet with President Obama, who has been notably wishy-washy on the notion since taking office. On the one hand, Obama has consistently said that “my administration is going to operate in a way that leaves no doubt that we do not torture.” Yet on the other hand, he has insisted that “nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen; but that generally speaking, I’m more interested in looking forward than I am in looking backwards.”

According to Whitehouse, current politics dictate that Congress should take the lead on establishing a torture commission. “When you look at the economic meltdown that [Obama] was left by the Bush administration, you can see why he would want to reassure the American public that he is out there looking at these problems and trying to solve them and not focusing on the sins of the past,” he said.

Whitehouse, however, predicted that Obama would not object to a torture commission moving forward in Congress. Besides, he said, “When push comes to shove, we are the legislative branch of government. We have oversight responsibilities. And we don’t need the executive branch’s approval to look into these things just as a constitutional matter.”

Plans to establish the commission still remain in their infancy, as senators and staff look at previous panels, such as the 9-11 Commission, and investigations following Watergate. Whitehouse, a former U.S. attorney, noted that a torture commission might need the power to immunize witnesses on a case-by-case basis. The prospect of future prosecutions, he said, are beside the point. Most important was putting a spotlight on abuses committed by the Bush administration.

“We have this American government, which has an architecture and a shape and a system that drives it and constrains it and that keeps it honest,” he said. “And what happened is that the Bush administration figured out a lot of ways to tunnel through the walls and sneak over the fences. So now we need to go back and say, ‘We have got to plant those walls deeper so you can not tunnel under them.’ We’ve got to spotlight how they did it,” Whitehouse explained. “The ultimate goal in this is to protect and enhance American democracy.”

Last week, retired Maj. Gen. Tony Taguba, known for conducting an honest investigation of prisoner abuse at Abu Ghraib, discussed his support for such a commission in an exclusive interview with Salon. Taguba joined a group of former high-level diplomats and law enforcement officials who also announced their support for a torture commission late last week, along with 18 rights groups.

During that interview, Taguba stated that any review must include close analysis of claims from Bush administration officials that abusive interrogations worked. “Some of those activities were actually not effective and those who thought so were in the academic or pristine settings of their offices,” Taguba said. “What would they know?”

Whitehouse agreed, and depicted as ironic the fact that some members of the intelligence community saw themselves as “the Lance Armstrongs of interrogation,” while some members of the military objected to abuse as ineffective. “In fact, the exact opposite was true,” Whitehouse said about such claims from the CIA.”It was amateur hour with them, and the career, tough, serious military interrogators said that this just was not effective,” he said. “But it is important to prove the point, because they keep saying, ‘We saved lives. We interrupted plans. We did this, that and the other.’” Whitehouse added, “Well, when you drill down, there is never a fact there. It turns into fog and evasion.”

A Torture Report Could Spell Big Trouble For Bush Lawyers February 15, 2009

Posted by rogerhollander in Criminal Justice, George W. Bush, Torture.
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Michael Isikoff | NEWSWEEK

An internal Justice Department report on the conduct of senior lawyers who approved waterboarding and other harsh interrogation tactics is causing anxiety among former Bush administration officials. H. Marshall Jarrett, chief of the department’s ethics watchdog unit, the Office of Professional Responsibility (OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos “was consistent with the professional standards that apply to Department of Justice attorneys.” According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

But then–Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to the draft, according to the sources. Filip wanted the report to include responses from all three principals, said one of the sources, a former top Bush administration lawyer. (Mukasey could not be reached; his former chief of staff did not respond to requests for comment. Filip also did not return a phone message.) OPR is now seeking to include the responses before a final version is presented to Attorney General Eric Holder Jr. “The matter is under review,” said Justice spokesman Matthew Miller.

If Holder accepts the OPR findings, the report could be forwarded to state bar associations for possible disciplinary action. But some former Bush officials are furious about the OPR’s initial findings and question the premise of the probe. “OPR is not competent to judge [the opinions by Justice attorneys]. They’re not constitutional scholars,” said the former Bush lawyer. Mukasey, in speeches before he left, decried the second-guessing of Justice lawyers who, acting under “almost unimaginable pressure” after 9/11, offered “their best judgment of what the law required.”

But the OPR probe began after Jack Goldsmith, a Bush appointee who took over OLC in 2003, protested the legal arguments made in the memos. Goldsmith resigned the following year after withdrawing the memos, and later wrote that he was “astonished” by the “deeply flawed” and “sloppily reasoned” legal analysis in the memos by Yoo and Bybee, including their assertion (challenged by many scholars) that the president could unilaterally disregard a law passed by Congress banning torture.

OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted. In a departure from the norm, Jarrett also told members of the Senate Judiciary Committee last year he would inform them of his findings and would “consider” releasing a public version. If he does, it could be the most revealing public glimpse yet at how some of the major decisions of Bush-era counterterrorism policy were made.

© 2009

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