“The President Ultimately Made the Call”

GQ has another of those articles describing Eric Holder’s failed efforts to restore DOJ’s independence and sustain rule of law as Attorney General. There are a few new details in there — such as details of what torture was described in the CIA IG Report but must be among the redactions (notably, strangling of one prisoner).

As he flipped through the pages of one report, Holder told me, reading descriptions of field agents holding a power drill to the head of one prisoner, strangling another, battering some, waterboarding others, and threatening to rape their wives and children, he was filled with “a combination of disgust and sadness.”

The piece is more rich in capturing Holder’s self-denial, his attempts to ignore that his actions directly violate principles he laid out before he became Attorney General.

“But before the inauguration,” I said, “both you and the president said that habeas should apply to enemy combatants.”

“I’m not sure I ever opined on that,” Holder said.

“I could read you a quote.”

Holder laughed uncomfortably.

“Here’s the quote: ‘Our government authorized the use of torture, approved secret electronic surveillance without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants,’ and a few other things.”

Holder was silent. “But I was talking about Guantánamo,” he said. “I’m pretty sure I was talking about Guantánamo.”

But I’m most interested in a fairly subtle moment, when a former White House official (it might be someone like Greg Craig) made it clear that Obama, not Rahm, made the decision to have the White House pick the venue for Khalid Sheikh Mohammed’s trial.

“It was wildly unfortunate,” says David Ogden, Holder’s former deputy attorney general. “The president gave that decision to the attorney general. The attorney general made it. Then the White House had to deal with a political reality in Congress. And the situation was assessed as being politically untenable.” Others are less forgiving, calling Obama’s capitulation an insult to Holder and a regression to the arbitrary policy of the Bush years. “There is an important principle at stake here,” Holder told me. “You don’t shy away from using this great system for political reasons. It hampers our ability as we interact with our allies if we don’t stand for the rule of law when it comes to a case that is politically difficult to bring.” Among Holder’s political allies, the blame for KSM lay not with Rahm but Obama. “Rahm was critical,” says one former White House official. “But the president ultimately made the call.”

The whole piece seems to lay out Holder’s angst as he decides to stick around after being stripped of his independence. Given this detail — the the President himself replaced justice with politics — he really ought to think seriously about regaining his principle by leaving.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. tjbs says:

    Torture/ Murder / Treason

    This torture process sure looks like a war crime tar baby. It must be passed to future generations to deal with but dirties those who pass it on.

    Pretty weird that eric would chose to become a war criminal, according to C.A.T., rather than investigate and prosecute the admitted torturers.

  2. radiofreewill says:

    It’s becoming clearer and clearer, imvho, that Obama is an un-finished product in the leadership arena. He can clearly ‘speechify’ the principled path to take – he can talk with the vision of a leader – but he lacks the gravitas to get people to actually follow him down the road of difficult choices.

    The net result is that he regularly ‘trades away’ Principle for Concensus, resulting in No Change.

    Once a leader is given a mandate by his followers, he has to be willing to get out front and fight through the resistance of his adversaries to make it happen.

    Our guy doesn’t appear to be able to do the second part…the courage of his Reason, his belief in Principle, fails him in the face of Emotional resistance…making him more a politician than a leader.

    The difference between Lincoln and Obama as leaders is enormous.

    • bobschacht says:

      The difference between Lincoln and Obama as leaders is enormous.

      Also, Obama is acting more like Clinton than FDR, and the comparison with Jerry Ford may be apt, as well.

      I think Obama made a strategic decision early on to “govern from the center,” a la Clinton. This constantly leads him to abandon his base among the Progressives, as he tries to be the champion of the Center. But the Center is fickle, and slippery. And he also has this really annoying habit of capitulating at the beginning of negotiations. Lincoln, and FDR, knew how to *lead*, and they knew how and when to be confrontational. Obama doesn’t understand that part. Yet. I’m hoping that, as he comes to understand the mid-term election, he will.

      Bob in AZ

  3. dopeyo says:

    i’m thinking of another president who traded comity for principles. jerry ford was a one-term president, too.

  4. klynn says:

    I hate thinking what I am thinking right now. It really seems like our leadership is in some ultimate blackmail situation.

    Tin foil on? Check.

    Conspiracy theories racing through the mind? Check.

    Filled with disgust and sadness? Check.

    A plan to restore rule of law? (Unchecked)

    • radiofreewill says:

      It doesn’t help that Bush is doing a very public, in-your-face, victory lap for Torture with no discernable consequences…and not a word from Obama or DOJ.

      • bmaz says:

        Man, no kidding. And nobody in the media apparently willing to make Obama respond to that either.

        From Marcy’s post

        The whole piece seems to lay out Holder’s angst as he decides to stick around after being stripped of his independence. Given this detail — the the President himself replaced justice with politics — he really ought to think seriously about regaining his principle by leaving.

        Yep, Holder has been deballed. Happened quite a while ago though when Obama undercutting him first occurred and Holder affirmatively stated he would not resign even if the DOJ was being danced on a string for political purposes.

    • lefttown says:

      I don’t think there’s blackmail going on. If there was, Obama could just have Holder go after the ones doing the blackmailing. I think Obama has put politics above human suffering. I think he’s just a selfish man who doesn’t deserve to be president and should resign before he does further damage to other human beings.

  5. b2020 says:

    “he really ought to think seriously about regaining his principle by leaving”

    Now that he has successfully aided and abetted torture by running the clock as far as relevant?

    I am afraid that it is too late for Holder – the stench will follow him. If he were a principled man, he would have resigned right there and then. Like all retainers of the elite, his career is more important than his oath. He is just another AG A-GoGo, same mold, different paint job.

  6. harpie says:

    From the GQ piece:

    […] What I didn’t mention is the other thing Holder told me: that the reason he limited the investigation was politics. “You only want to look back at a previous administration if you feel you really have to,” Holder said. “Because it has a potential chilling effect. If people who work in this administration today think that four years from now, or eight years from now, the decisions they make are going to be examined by a successor administration, you don’t want that to happen. So that’s a political consideration.” […]

    Why are these people afraid of having their decisions examined?

  7. bmaz says:

    From the GQ article:

    Behind closed doors, however, a very different picture emerged. In his private conversations with Durham, Holder had dramatically limited the scope of the investigation—so much, in fact, that the prosecutor was forbidden to examine the torture policy at all. As the attorney general told me himself, “The instructions that I shared with John were that anybody who went by the OLC memos, that’s fine. The question is: Are there people who went beyond those memos? Who exceeded those memos? And if there are, should we be investigating them?”

    This bores straight into what no one seems to get. No only is the Durham jurisdiction is incredibly limited, but it also is, from all evidence, still just a “review” to see if there should be a full formal investigation opened. There is a huge difference, and I am aware of no indication Durham has ever made the shift from “review” to “investigation”. And, with Obama calling the shots based on his own self serving political priorities, there is no reason to believe that shift will ever occur. Why has nobody understood this all this time? That even the ACLU attorneys did not grasp this concept is stunning.

    • Mary says:

      I was posting in one window while reading in another – should have refreshed first bc you and harpie already had the same point.

      People like Ben Wizner look to the “civil rights” common ground they have with someone like Holder and see it through that prizm. And they act like it’s some kind of an accomplishment – that he’s brought attorneys back to that division, even while he’s forever institutionalized the right of his successors to purge it again.

      The article really is a pretty chilling progression, ending with Holder’s embrace of citizen assassination based on Presidential fiat and his Bush impression – “This conflict is different from what we have experienced in the past”

      It’s like reading the Screwtape Letters with the ending rewritten.

    • Jason Leopold says:

      It definitely has not become a full-scale criminal investigation and from what I have gathered through reporting over the past month is that Durham has not been able to obtain evidence or get witnesses to recall facts of the case.

      I think it’s also important to note that in the history of the CIA no agent/operative/official has ever been prosecuted for anything related to the work they were doing as it pertains to an assignment.

      • bmaz says:

        Well, it is kind of hard to “obtain evidence” if your prosecutorial jurisdiction is restricted so as to not have the scope to facilitate it. Not to mention, of course, that there was no real attempt to separate the players, put hammers over their heads and leverage them against one another like a prosecutor actually doing his job would do.

        It is not that Durham and DOJ couldn’t obtain evidence, it is that they were not particularly trying to obtain evidence. The “Durham investigation” is a sham, and it has always been a sham.

  8. bluewombat says:

    Well, at least Holder had some principles to begin with — I thought he was a complete hack from the get-go. Although by staying in place he begins to resemble the hack I imagined he was in the first place.

    • Jeff Kaye says:

      Principles? After my initial story on David Margolis at FDL, in its reposting at The Public Record, I added some details about another Margolis bit of history, one that included Eric Holder:

      A 1999 [Newsday] story involves then Assistant Attorney General Eric Holder and Margolis acting together to spike a serious investigation into the 1993 Waco disaster, and in particular after it was discovered the FBI and DoJ had lied for years about using military incendiary devices at the Branch Davidian siege. Holder was overseeing an investigation led by Republican Senator John Danforth into the Waco Branch Davidian government siege. Bill Clinton’s Attorney General Janet Reno had taken the investigation out of the hands of U.S. Attorneys in Texas and given to GOP stalwart Danforth, who later exonerated the FBI of any wrongdoing, and recommended indictment of the only whistleblower in the case, U.S. Attorney William Johnston.

      See also this Washington Post story (9/15/99), which goes into more details on how Holder and Margolis pulled “the entire U.S. Attorney’s Office for the Western District of Texas from further work related to the 1993 siege of the Branch Davidian compound near Waco, Tex”, in order to hand the investigation over to the Danforth whitewashing commmission.

      One of the attorneys in Blagg’s office who is being recused is Assistant U.S. Attorney William Johnston, who recently sent Attorney General Janet Reno a strongly worded letter warning that she had been misled by people within her department about the Waco siege. Holder said the broad recusal had nothing to do with Johnston’s letter.

      Johnston was later the only government person indicted in the aftermath of the Waco disaster.

      Holder is a hack from way back.

  9. Mary says:

    It’s nice that at last we find out what Durham’s mandate was – that ever elusive thing that a Democratic Controlled House and Senate and America’s 24 hour infotainment industry never really bothered to nail down in their offhand reports of torture investigations. Apparently the problem with finding out the mandate was . . . that no one other than a GQ reporter (and blogs) asked.

    In his private conversations with Durham, Holder had dramatically limited the scope of the investigation—so much, in fact, that the prosecutor was forbidden to examine the torture policy at all. As the attorney general told me himself, “The instructions that I shared with John were that anybody who went by the OLC memos, that’s fine. The question is: Are there people who went beyond those memos? Who exceeded those memos? And if there are, should we be investigating them?”

    But when I spoke with lawyers following the case, I found that many of them were unaware of those instructions. …

    What I didn’t mention is the other thing Holder told me: that the reason he limited the investigation was politics. “… If people who work in this administration today think that four years from now, or eight years from now, the decisions they make are going to be examined by a successor administration, you don’t want that to happen…”

    He left out the 2 years from now, by a successor Congress.

    The question he didn’t get asked was why it was necessary and prudent for the DOJ to go back and investigate and prosecute Jon Burge, but not John Yoo. But I guess when you are in the middle of giving thumbs up to torture renditions and assassinations and bombings of families on the hope and a prayer that there might be an “insurgent” somewhere in the neighborhood, it does change your perspective. And then when you see, popping up on the screen over the next days and months, the fallout from things you authorized – the suicide bomber motivated by the assassinations and renditions you put in the que, it changes your perspective. When you realize that every day will exponentially bring more violence that was born from your decisions and actions, it must change your perspective.

    When you have to arrange your trip to GITMO to make sure you don’t run into a guy who had his penis razored and was disappeared for years for pulling up a spoof website, it must change your perspective. When you are presented with the “problem” of what to do with the problem of the Chinese Uighur who has been tortured into such insanity that we can’t really find a good destination for him, and whose brother who is clearly innocent won’t leave him and you get to structure and direct your institution to fight court orders for their release and argue, shamelessly, for more and continued, arbitrary and capricious, power to isolate, disappear and torture them on Presidential fiat and whim – I’m guessing by then it doesn’t change your perspective.

    Instead, by now it changes who you are. You’re not a good man, trying to do the right thing anymore. But you’ve always been the “outstanding” one. So you’re not going to admit, not even to yourself, what it’s changed you into. Instead, you scurry off to the homeless shelter and hope for that moment of being able to look in the mirror. *I’m not a man who protects evil, I’m that man who was refilling juice glasses.* And when the news of a horrible crime, one in your home and one where you can, with relief, at last express anger and revulsion because it hasn’t been committed with a seal of approval from your office, your decision to drop everything and run back home, where you can play the role of one of the good guys – that inexplicable decision becomse a lot easier to understand. You’re hoping to buy those additional minutes when you can look in the mirror and not see what you’ve become. When you can look in someone’s eyes and see respect and gratitude and believe again, that you are one of the good guys after all.

    And then you go back and begin again – authorizing assassinations, agreeing to let murderers and torturers not only go unprosecuted, but receive promotions and accolades and book deals, of agreeing to do whatever your President wants done, for whatever political reasons he decides. You go back to your job of making sure the country stays numbed to the crimes of those who are now “your people.” You don’t think about the teenager who was permanently disappeared when he made the mistake of telling the truth about Abu Zubaydah. You don’t think about the Afghan men and women who you ask to put their lives on the line to fight corruption, to be a part of the serious crimes investigations. You don’t think, as you read about their deaths and funerals, about how you asked them to make the ultimate sacrifice to battle the very same corruption that you’ve decided to embrace. You pat yourself on the back for “saving” the civil rights division, without ever questioning your role in ensuring and enshrining policies of torture and lies. Then you go back to the homelss shelter and tell yourself, *I’m still one of the good guys.*

      • Mary says:

        Hylton is a pretty talented writer – I think, with a more subtle touch, he pretty much did print that. ;)

        @20 – it’s interesting that the civil rights lawyers leave en masse bc The Scholz is a creep to deal with for them on a personal level. But torture and assassination of the helpless – no one in either the Bush or the Obama DOJs gets too worked up over that. Obama’s DOJ was basically the last shot of a dying national value to get resuscitation. Instead, they made sure it didn’t even get last rites. But what the heck, you know, it’s *different* when they support torture and depravity. In the end, they’ve all bought the “Bush Was Right” t-shirt and now they are scratching their head over why the political decision to adopt his policies might have the political reprucussion of people thinking that if Obama and Holder have just said Bush was right all along – well, it gets to the question Hylton asks – why are they still in office? If you ran bc you thought change was needed, but now you’re parrotting Bush and saying he was right all along, what’s your purpose? Why are you still there?

        Oh, wait, yeah, I forgot. Poltics and pride.

        • harpie says:

          I prefer yours, not because I didn’t “get” the subtle, but because I’m not sure “subtle” can be effective at this point.

  10. jaxxur says:

    War crimes are committed by a nation or people that violate the Geneva Conventions, correct? If so, how does waterboarding violate the Geneva Conventions? Terrorists are not classified as prisoners of war. Therefore the Geneva Conventions have not been violated.

    • bmaz says:

      What? You clearly have little understanding whatsoever of the details of the various Geneva conventions or international law; and no comprehension as to the nature of US statutory law on general and war crimes. Get a clue, then come back around.

      • jaxxur says:

        Oh, ok. So instead of telling me how I’m wrong, you just say I have “little understanding” of the Geneva conventions. Ok, I gotcha. How, exactly, am I wrong?

        • bobschacht says:

          We kinda expect our readers to be self-educating. The tactic of “OK, I’ll say something outrageous and make you go to all the work to explain in detail why I’m wrong” won’t get you very far here. You could at least start with the Wikipedia, and then, you know, Mr. Google is your friend. Or if Mr. Google’s habit of reading your searches annoys you, there are countless alternatives.

          Bob in AZ

          • jaxxur says:

            Ok, why would I go through all this trouble and just post random things? I wouldn’t. I cannot find ANYTHING in the Geneva conventions where the U.S. committed a war crime. I seriously have looked, Wikipedia, Google, etc. I found nothing. Nothing. If you want to make assertions about war crimes, what are you basing it on? Where does it say the United States does not have the right to declare prisoners “enemy combatants”? Also, I don’t hear any news about how Bush is being tried in courts for war crimes, or anyone else being tried for that matter.

            • Mary says:

              It’s hard to even know where to start, bc it’s hard to know what you do or don’t know based on your posts, but here’s a shot.

              A war crime is just as much a war crime whether the victim of the crime is someone like a Polish Jewish civilian shipped to a concentration camp as where the victim of the crime is a POW.

              The Geneva Conventions include pretty specific provision on this – some of which are found in Common Article Three. Here is a link to a brief treatment of Common Article 3


              It applies to everyone who is in the power of the detaining authority, whether they were pows, others who had taken up arms, civilians of the nation, foreigners trapped, etc. And in part it provides:

              To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

              (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

              (b) taking of hostages;

              (c) outrages upon personal dignity, in particular humiliating and degrading treatment;

              (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

              Cruel treatment, torture, humilitation, etc. – all war crimes under Common Article 3, without regard to the status of the person they are committed upon.

              And as we know, over and over the actions taken by the US were taken against people who were not not combatants of any kind at all in our invasion of Afghanistan and later Iraq, legal or illegal – from Khalid el-Masri to Ahmed Errachidi to Maher Arar to Chinese Uighur refugees to Higazy to Donald Vance etc. etc. So you also have to recognize that a chunk of those against whom war crimes were committed were not “terrorists”

              This has been true in other times and even before the Geneva Conventions. You don’t have to have the Geneva Conventions to have war crimes. The Nazi war crimes trials were not based on the Geneva Conventions, but on laws of war which are international laws of general recognition. And the status of a person as a prisoner of war or not is not what makes a war crime – gassing Jewish civilians was just as much a war crime as torturing pows would be, even without the Geneva Conventions.

              In addition, the drafters of the Geneva Conventions had actually seen conflicts just like our current conflict and were not perplexed and dumbfounded over what to do when confronted by someone not wearing a uniform in a conflict where a lot of those involved don’t wear a uniform. Under the Geneva Conventions, anyone who made a claim that they were not a terrorist should have been entitled to a full and real trial before they continued to be detained. Those are Geneva Status hearings, which we did not do at all for years and then we tried to go back and cook up the Combatant Status Review Tribunals as a farcical effort to claim that they were the kind of full and real trial that the GC’s required.

              The U.S. Supreme Court shot down the CSRTs – you may have missed that. ;)


              In addition, a violation of Article 49 of the Fourth Geneva Convention which prohibits taking someone who has been detained out of the country UNLESS they are a prisoner of war, is defined in Article 147 of GC4 as a “grave breach”


              So anyone taken to a black site or GITMO who was NOT a POW and being treated as such – that was a war crime. Under the US war crimes statute in effect at the time, all “grave breaches” of the GCs were war crimes. That’s without a showing of abuse. And ghosting prisoners to keep them away from the International Red Cross is yet another war crime.

              I don’t have a lot of time – but that’s what I have do have for you.

            • R.H. Green says:

              “…I don’t hear any news about how Bush is being tried for war crimes, or anyone else for that matter”.

              You raise an interesting point here. Now I’m going to assume (for the moment) that you are an open minded person attempting to make sense of a confusing set of social data. What has been presented to you by several has been an attempt to help you in that endeavor, notably comments #47 and #48. Given what they tell you about the civilized world’s attempt to solve some perceived problems in human relations, it is most apt to then turn your attention to the question you raised, as to why there is no enforcement of violations of the standards of conduct that are clearly laid out in international conventions of how to deal with those who drop their guns and raise their hands in surrender.

              Why indeed? So ask YOURSELF this probing question, and let us know what conclusions you come to.

              In case my aforementioned assumption about your motives for commenting here are wrong, I, and presumably the others, will react to further rasberries as not worth the time to respond.

        • tjbs says:

          Geneva covers combatants and civilians, meaning everybody, even if we come up with some cool new name for some group. The authors of Geneva expected diversionary arguments like yours.

          You know it’s like pregnant either or not just a little bit, combatants or civilians .

    • harpie says:

      Terrorists are not classified as prisoners of war. Therefore the Geneva Conventions have not been violated

      International Humanitarian Law covers “all persons”. The US, as signatory to the Geneva Conventions and the Additional Protocols is required to abide by them, whether or not those we waterboarded were “classified as prisoners of war”.

      The legal situation of “unlawful/unprivileged combatants” [pdf]; Knut Dörmann; 2003 [ Knut Dörmann is a Legal Advisor at the Legal Division of the International Committee of the Red Cross; the article reflects the views of the author alone and not necessarily those of the ICRC.]


      [pg pdf 3][emphasis added] Once captured or detained, all persons taking no active/direct part in hostilities or who have ceased to take such a part come under the relevant provisions of international humanitarian law (i.e. Article 3 common to the four Geneva Conventions, and Additional Protocol II, in particular Articles 4-6), as well as the relevant customary international law.

      The protective rules apply regardless of the way in which such persons have participated in hostilities (e.g. in accordance with IHL or not; in accordance with national law or not; etc.). Nor does it matter whether the person was a member of an armed rebel group, a member of the armed forces of a State or a civilian who (temporarily) took a direct/active part in hostilities.


      [pg. pdf 29] As this article has shown, it can hardly be maintained that unlawful combatants are not entitled to any protection whatsoever under international humanitarian law. […] The guarantees contained in Article 75 of PI [Protocol I] constitute the minimum protections that apply to all persons, including unlawful combatants, in the hands of a Party to an international armed conflict, irrespective of whether they are covered by GC IV or not.

      Protocol I


      Art 75. Fundamental guarantees

      1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.

      2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:

      (a) violence to the life, health, or physical or mental well-being of persons, in particular:

      (i) murder;

      (ii) torture of all kinds, whether physical or mental;

      (iii) corporal punishment; and

      (iv) mutilation;

      (b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;

      (c) the taking of hostages;

      (d) collective punishments; and

      (e) threats to commit any of the foregoing acts. […]

      There are more requirements for the signatories at the link.

      There are others around who know more about this than I do, but this is my understanding of it.

  11. rapier51 says:

    Nobody ever quits on principal. Nobody gets to the seat of power in the first without selling out principals, if they have them.

    • davidasposted says:

      Actually, they never seem to sell out the principals. They sell out the rest of us, demonstrating that they have no principles.

    • bobschacht says:

      9/11 mastermind should be tried in federal court, families tell Holder

      I think I’d almost rather not check the link to find out who the mastermind was. There are so many interesting possibilities.


      Bob in AZ

    • bluewombat says:

      Conyers joins growing chorus calling for Bush torture probe

      For the last two years, John Conyers has been chairman of the House Judiciary Committee. It’s gracious of him to call for an investigation now; but I would have been more impressed if he had conducted one.

  12. Peterr says:

    From the GQ piece:

    In April, Holder watched his nominee to head the Office of Legal Counsel, where the torture memos originated, withdraw from consideration after more than a year of painful stalemate in the Senate Judiciary Committee. Although Dawn Johnsen refuses to blame Holder or Obama for allowing her nomination to fail, she says a primary objection among Senate Republicans was her opposition to torture. As a law professor during the Bush years, Johnsen was vehement in her criticism of the OLC opinions. “That played a big role in the failure of my nomination,” she told me from her cell phone as she made the long drive home to Indiana this summer. “But I have no regrets about taking those positions.” Two Republican staffers on the committee confirmed Johnsen’s explanation. Six years after the OLC memos, the only lawyer to be punished for the torture policy is one who strenuously opposed it.

    Emphasis added.

  13. rkilowatt says:

    Holder signed-off on the Marc Rich pardon by “mistake” due to overhelming busy-ness of his office duties. Cf. robosigner. Catfood eaters and other whiners just have to get over it.

    Sycophants flourish and prosper in a tyranny.

  14. john in sacramento says:


    My spidey-sense is going off with this, and saying ‘Obama’s getting ready to go continue his back door big brother shtick on us with this’

    Obama administration to target Internet privacy: report

    The United States is preparing to boost efforts to police Internet privacy, with a push for new laws and a new office to manage the effort, the Wall Street Journal said Friday.


  15. prostratedragon says:

    Given this detail — the the President himself replaced justice with politics — he really ought to think seriously about regaining his principle by leaving.


    Sycophants flourish and prosper in a tyranny.

    The damage just stays hidden for a long time, pictures in the attic and such. It’s never too late to put a limit on it.

  16. Mary says:

    @44/57 I don’t think they had it completely right – I think he wants the favors accumulating as well as “protecting” from embarassment. I mean, how much more embarassing does it get than to now have it on paper that the Ethics dept said they should be referred and the institution still quashed referrals? What does that say to the world at large or to any court? Hey-yeah, our ethics experts, even after an unreasonably narrow mandate to investigate (which didn’t include things like why no one sent out lit holds) said we needed to refer, but heck, we knew we’d look awful so . . we just didn’t.

    I’d love to see a real firm of real lawyers try to pull that one off without the Margolis Cure being way more of an embarassment to the institution than the referrals. If he was worried about embarassing the insitution, he’d have gone on with the referrals, bc not doing so makes the institution that much less credible and that much more of a joke. If he was worried, though, about protecting individuals over the institution and having personal favors to call in – that would make for a much better explanation of what he did.

    Even when they are trying to throw a punch, the DOJ insiders and ex-insiders just can’t really be honest with themselve about their “colleagues.” Not going on hurt the institution, helped the individuals. They don’t want to say it or think it of the “nice guy” with the Jerry Garcias tie, but they’re not being honest with themselves to frame his unbelievable intervention to cover up as concern for the institution.

  17. jaxxur says:

    Is this thread dead? Because I’d like to respond…can you provide specific instances; dates, locations, involved parties, etc. to support your assertion that we committed war crimes?

    • bmaz says:

      Um, yeah, you are the interloper who has magically appeared and commented here for the first time to make unsupported assertions. You provide your argument and facts to the contrary, and we will debate them. We have been here for years documenting this area of history and law, and owe you exactly diddly squat. If you are really game, ante up; otherwise it simply is not our burden and you are a waste of time troll. What you got bubba?

      • jaxxur says:

        Uh, you guys are the ones who claim the U.S. government committed war crimes! You all live in an echo chamber! You all agree with each other, and an outsider has no way to know where you’re all getting information from. It’s so weird, to believe your government has committed war crimes and still live here willingly!

        • bmaz says:

          Quite frankly, you have demonstrated absolutely no indicia of the requisite depth to be able to process the material and argument. If you cannot proffer any more than the trite little mindless sound bite questions and statements you have, you are simply not up to the task and are a waste of time. Put up some tangible sign you are capable of engaging complex discussion and maybe somebody will bother to engage you; otherwise get lost.

          • jaxxur says:

            Really? So I guess I’m banned, huh? That’s great. You guys have provided me with no specific defense of your positions. All you do is shout “war crime” and expect people to take you at your word. And then you pat yourself on the back, cause you’re so much better than everyone else.

            • radiofreewill says:

              Waterboarding is a War Crime.

              Bush confessed in his memoir that he ordered Waterboarding.

              Crime plus Confession

              What more do you need?

              • jaxxur says:

                I guess if you feel water-boarding is torture, then I can see why you’d think that might be a war crime. However, water-boarding isn’t torture. It is an enhanced interrogation technique. But you guys don’t see it that way, you’re unreasonable.

                • bobschacht says:

                  Ah! A Yoo acolyte! We don’t see many of those around here.

                  jaxxur, Yoo was a tool, selected to do the bidding of his masters. Even though he has a University teaching position, he is not regarded as being the brightest bulb on the Christmas tree. Even though Margolis axed the parts of the IG report on his work calling for more severe penalties, he let the parts of the adverse judgment on his legal opinions stand. “Enhanced interrogation” is a crock, an obvious attempt to circumvent the war crimes statutes.

                  Bob in AZ

            • john in sacramento says:

              Eeeerm, uh, in your rush to paint the writers (Marci and bmaz) and commenters of this website as something they’re not, it seems quite obvious you haven’t taken a look at the links provided on the right side of this page

              The first thing you need to do is go to the top of the page. Then, scroll down about 20% from the top, or page down about 4 times and you’ll see Timeline Collection. And whatever you feel you’re missing, is most probably in those links

              Feel free to think of one of these old sayings the next time you want to impugn somebody

              Discretion is the better part of valor

              Measure twice and cut once

              Better to remain silent and be thought a fool than to speak out and remove all doubt

        • newtonusr says:

          For years now, emptywheel has been the most rigorous investigative resource for this topic, anywhere. You should not expect to gather proof or factual comfort from any one post.

          You are not hopelessly behind. Get cracking.

  18. jaxxur says:

    What are we to do with each other? We are fellow citizens, yet we believe completely different things about the same country. Is there no middle ground? Don’t you ever stop and consider what is happening to us all? We are growing farther and farther apart.

    • Jeff Kaye says:

      Yeah. What a shame.

      Just be glad your name is not Donald Vance, a 29 year old former two-time voter for George W Bush and Navy vet, who learned first hand about war crimes. He thought he would be a good boy scout and report on the trade of guns for liquor by his employer. He called the FBI. And then…

      Vance’s nightmare began last year on Apr. 15 [2007] when he and co-worker Nathan Ertel barricaded themselves in a Baghdad office after their employer, an Iraqi private security firm, took away their ID tags. They feared for their lives because they suspected the company was involved in selling unauthorised guns on the black market and other nefarious activity. A U.S. military squad freed them from the red zone in Baghdad after a friend at the U.S. embassy advised him to call for help….

      Two or three hours later, before the crack of dawn, U.S. military personnel woke them. This time, however, Vance and Ertel, Shield Security’s contract manager, were under arrest. Soldiers bound their wrists with zip ties and covered their eyes with goggles blacked out with duct tape….

      In a lawsuit now pending against former Defence Secretary Donald Rumsfeld and “other unidentified agents,” Vance and Ertel accuse their U.S. government captors of subjecting them to psychological torture day and night. Lights were kept on in their cell around the clock. They endured solitary confinement. They had only thin plastic mattresses on concrete for sleeping. Meals were of powdered milk and bread or rice and chicken, but interrupted by selective deprivation of food and water. Ceaseless heavy metal and country music screamed in their ears for hours on end, their legal complaint alleges.

      They lived through “conditions of confinement and interrogation tantamount to torture”, says the lawsuit filed in northern Illinois U.S. District Court. “Their interrogators utilised the types of physically and mentally coercive tactics that are supposedly reserved for terrorists and so-called enemy combatants.”

      Rumsfeld is singled out as the key defendant because he played a critical role in establishing a policy of “unlawful detention and torment” that Vance, Ertel and countless others in the “war on terror” have endured, the lawsuit asserts, noting that the former defence secretary and other high-level military commanders acting at his direction developed and authorised a policy that allows government officials unilateral discretion to designate possible enemies of the United States.

  19. alinaustex says:

    jaxxur@ 67

    Yes we are growing further apart because we can as a People no longer agree that allegations of detainee homicides and torture( ie slicing of a penis with scapel )are war crimes and need to be investigated but are not -they are covered up . And yes we as a People are growing further apart because many of us said the Irak Occupation was and is an illegal aggression & a war crime . Our former leaders such as President George W Bush willingly sell us falsehoods such as Saddam kicked out the WMD inspectors so we had to go to Baghdad ( but El Baradei’s team was still in country as the first sorties were flown ) – Yes we are growing apart as a People when many of us do not get on the Orwellian crazy train to xenophobic fascistville .

    Finally it now appearsto be totally clear that Barry has decided to look forward not backward so it appears that the Crazy Train has begun to really pick up speed .

    And Jaxxur for all the Blood & Treasure we spent on the illegal occupation of Irak we could have fixed and destroyed all the alQaida networks that now still threaten us – maybe we could agree on that …

    Jaxxur the middle ground is the return to rule of law – why not test first whether or not the Irak War was a war of aggression – and go from there.

    That might be one way to derail the crazy train -and help us collectively regain our Comity

  20. jaxxur says:

    Now before everybody tries to call for me to be banned, here’s my point: Water-boarding does not maim, cause permanent physical damage, or result in death. It merely simulates the sensation of drowning and having no control over your ability to end the encounter for very brief periods of time.
    There are physicians present, as well as psychologists to oversee the procedure. We do not live in the middle ages, and this is a humane interrogation technique.
    Now, would I undergo that procedure if I had a choice? Hell no. I’m not saying it’s pleasant, but why would we try to be pleasant to people who are trying to kill us?

    • john in sacramento says:

      Now before everybody tries to call for me to be banned …

      Point to one post where someone said anything close to what you’re implying

      Stupidity might get you what you think is going to happen, but logical well thought out arguments, with credible sources are welcome. Care to try for door number 2 in your next comment?

  21. Mary says:

    People aren’t calling for you to be banned, they think you’re not engaged in any discussion bc you aren’t processing or making any effort to process the information you are given. It’s like giving a parrot the pythagorian theorum and waiting for it to solve for the value of the hypotenuse after it’s been given the sides.

    Waterboarding does not “simulate” drowining, it is drowning. Stopped before it becomes lethal. Maybe. There was that tracheotomy kit they needed to have on hand. Under your standards, breaking a child’s bones (not permanent damage, they heal), rape, electrocutions, poisenings, being buried alive, extreme and prolonged sensory deprivation and a whole panorama of things that have always been crimes and torture somehow become sanitized as just interrogation.

    Waterboarding was prosecuted as a war crime by the US after the waterboardings in the Phillipines. It was prosecuted as a regular crime as well when committed by a Texas sheriff and his deputies. In both cases, it was called torture (and btw – you are focusing on a torture definition, which applies for the torture act and torture victims act, but the war crimes definitions is not the same and, as you see from the links given above if you work through them, violence to a person, cruel treatment, etc are all at work. Under the torture act, the threat of death involved in the waterboardings is definitionally torture.

    Every shipment to GITMO of someone not captured in an active battle on an active battlefield was a war crime without a competent CSRT beforehand. Binyam Mohamed’s treatment – war crime. Ahmed Errachidi’s treatment – war crime. Al-Libi’s live burial – war crime. The Salt Pit torture murder – war crime. Drill to the head – war crime. Americans taking family members hostage, as was done over and over – war crime. Threats of rape (FBI agents are the witnesses for some of those btw and they are in the published, unredacted FBI Inspector General’s review) – war crimes.

    And knowing war crimes. The CIA gave the White House a memo in August of 2002 that explained that at least 1/3 of the detainees at GITMO were not illegal combatants and were not even any kind of combatant under any kind of definition. That meant that their shipment to GITMO was something the Geneva Conventions, via Article 147 of GC4, selfed defined as a grave breach. Ditto with the shipment of Khalid El-Masri to the black sites. Ditto with the shipment of Maher Arar for Syrian torture. Ditto with the shipment of Ahmend Errachidi from Pakistan to GITMO. Ditto with the shipment of the two passengers in Dillawar’s car (and witnesses to his torture death at Bagram) to GITMO.

    All war crimes, all KNOWING war crimes. But once you get info like this, you still are the parrot who says, “you guys aren’t provdiing me anything specific.” You asked for the GCs and were given them and haven’t mentioned how waterboarding is NOT covered Common Article 3. Of course it is. When you lost the “their terrorists so they aren’t covered” (without giving any evidence, btw, that “they” are “terrorists” by the pretty damn clear and not hard to find links to the GCs and to the Sup Ct case of Hamdan, you shift over to “well, it’s just interrogation” without looking at the reports of the combinations of nudity, wall slamming, sleep deprivations and necessity of trach kits (and fact that medical doctors were not around for much of the waterboarding unlike your incorrect statement – and as set forth in timelines) were all combined with waterboarding. But more importantly, you flat out ignore the US prosecutions, as torture and war crimes, of the Phillipine waterboarding.

    Yeah, right, I get it, you’re just looking for info.


  22. robspierre says:

    “He really ought to think seriously about regaining his principle by leaving.”

    I think that Holder is way beyond the point where honor can be restored by mere resignation. He’s right up there with Hitler’s and Stalin’s judges.

    Maybe Holder could issue a passionate dununciation, give away all of his earthly possessions, and then enter a monastery for a lifetime of penance. Maybe he could do what they used to call “the only honorable thing”–though I think of that as the coward’s way out. Or maybe he should just present himself at the Hague and ask to plead guilty to crimes against humanity in exchange for a life sentence.