Rummy Lawyers Up … To Defend Ordering Death Threats?

Josh Gerstein reports that the government has withdrawn from defending Donald Rumsfeld and others in the Jose Padilla suit Judge Richard Mark Gergel dismissed the other day. (h/t MD)

The Justice Department under President Barack Obama has quietly dropped its legal representation of more than a dozen Bush-era Pentagon and administration officials – including former Defense Secretary Donald Rumsfeld and aide Paul Wolfowitz – in a lawsuit by Al Qaeda operative Jose Padilla, who spent years behind bars without charges in conditions his lawyers compare to torture.

Charles Miller, a Justice Department spokesman, confirmed Tuesday that the government has agreed to retain private lawyers for the officials, at a cost of up to $200 per hour. Miller said “conflicts concerns” prompted the decision. He did not elaborate.

One private attorney involved in the case, who asked not to be named, said the Obama administration apparently concluded “its duty to represent the defendants zealously, which includes the duty to argue any and all defenses, can’t be discharged for reasons of policy and other government interests.”

That’s mighty interesting. Because the last time DOJ withdrew from defending such a high profile defendant was John Yoo, in the partner lawsuit in this case, in which Padilla is suing Yoo for his horrible OLC memos. The DOJ withdrew from defending Yoo just two weeks before DOJ finished the OPR Report (on July 29, 2009) finding grave problems with the OLC memos John Yoo wrote authorizing torture. The very memos Padilla sued Yoo about.

Which makes this observation from Gerstein and Stephen Gillers all the more interesting.

Legal ethics experts said the Justice Department’s withdrawal could stem from qualms about a full-throated defense of Padilla’s treatment while in military custody. His lawyers claim that Padilla’s captors in the brig subjected him to abuse including sensory deprivation, prolonged isolation, imminent death threats, forced drugging and interference with his practice of Islam.

“Some of the [defendants] may have wanted to make more extreme arguments about the legality of their conduct than the Justice Department was willing to accept,” said Stephen Gillers, a professor of law at New York University. [my emphasis]

That same OPR Report would virtually prohibit DOJ from helping Rummy and others defend the claim that death threats used on Padilla were legal. After all, we know that mock burials–a kind of death threat–were just about the only thing that John Yoo said was illegal!

Now, as it happens, Judge Collyer, in the ACLU’s FOIA case, appears to have made a really ridiculous argument that DOJ’s declassification of that reference to mock burial does not amount to an acknowledgment that Yoo judged death threats, more generally, to be illegal. And the death threats used against Rahim al-Nashiri at least allegedly are still being investigated.

But it would be mighty interesting if this were all about death threats. Padilla’s lawyers are suing because–among other reasons–Rummy ordered up treatment that included death threats. And that’s the only thing our Department of Justice has deemed illegal.

  1. PeasantParty says:

    Zoom! There you go again! Our media news simply can’t keep up with you. ;-)

    “Some of the [defendants] may have wanted to make more extreme arguments about the legality of their conduct than the Justice Department was willing to accept,” said Stephen Gillers, a professor of law at New York University

    I think this is it in one sentence. The DOJ cannot even stand on principle of their own made up excuses in a court of law. The death threats, and threat of live burial, etc. are just too much and Holder will not go down in history with quotes from a trail on that.

    What bothers me most is that my tax dollars are going to pay for private attorneys for Rumsfeld and other treasonous bastids!

  2. donbacon says:

    Just a reminder that Jose Padilla is an American citizen. Although the Military Commissions Act that Bush-43 signed (and Obama has extended) limits to foreign citizens the use of military tribunals and the denial of habeas corpus, any person, including American citizens, can still be labeled and treated as an “unlawful enemy combatant” in the war on terrorism.

    Jose Padilla was arrested in Chicago for terrorism and transferred to military custody, where, according to Padilla, he was tortured and involuntarily injected with drugs. Padilla was subjected to prison conditions and interrogation techniques that took him past the breaking point, mental health experts say.

    Two psychiatrists and a psychologist who conducted detailed personal examinations of Mr. Padilla on behalf of his defense lawyers say his extended detention and interrogation at the US Naval Consolidated Brig in Charleston, S.C., left him with severe mental disabilities. All three say he may never recover.

    The government’s position is that since the entire world is a battlefield in which the war on terrorism is being waged, U.S. officials now have the power to arrest any American suspected of terrorism, place him in military custody, and subject him to the same “unlawful enemy combatant” treatment that Padilla received, until the war on terrorism has finally been won, no matter how long that takes.

    Jose Padilla was designated an enemy combatant in 2002 and transferred to a Navy brig. Padilla in 2004 made a number of admissions to criminal conduct. A court upheld the government’s “unlawful enemy combatant” argument for Padilla and, by implication, all other Americans.

    Padilla was held for three and a half years as an “enemy combatant” until, after pressure from civil liberties groups, the charge was dropped and his case was moved to a civilian court. In 2006 Padilla was transferred into civilian custody. On January 22, 2008, Padilla was sentenced by Judge Marcia G. Cooke of the United States District Court for the Southern District of Florida to 17 years and four months in prison.

    How does an American who is labeled an enemy combatant ultimately get tried? Answer: he doesn’t. Under the Military Commissions Act, trial by military tribunal is limited to foreigners. So, even though Americans still have the use of habeas corpus (so far) to test whether their detention is lawful, if the Supreme Court ultimately upholds the “unlawful enemy combatant” designation for people accused of terrorism, Americans will be returned to indefinite military custody as “unlawful enemy combatants” if the government has provided some evidence of terrorism at the habeas corpus hearing. (h/t Jacob Hornberger)

    • thatvisionthing says:

      That “unlawful enemy combatant” thingie. What do you call CIA guys who murder people in another country? They don’t wear uniforms. They’re not contractors. (I think contractors are lawless? That question that stumped Bush (youtube) at a town hall once? I haven’t kept up on Blackwater.)

      …A few months after the incident, Secretary of Defense Donald H. Rumsfeld came to speak at Johns Hopkins. When the question-and-answer period came around, Kate was ready for him.

      “I’m a first-year student here at SAIS,” she began. “There are currently thousands of private military contractors in Iraq. . . . Since the private contractors are operating outside the Uniform Code of Military Justice, can you speak to what law or rules of engagement do govern their behavior?”

      Rumsfeld stammered out a suggestion that the mercs fell under Iraqi law. “Iraq’s a sovereign country,” he said, dubiously.

      Two months later, the commander-in-chief, George W. Bush, showed up at Hopkins. Kate pressed on: “My question is in regards to private military contractors,” she told the president.

      As she unspooled her question, Bush rested his left arm on the podium, his tilted face betraying utter bewilderment.

      “I asked your secretary of Defense a couple months ago what law governs their actions,” said Kate.

      Bush interrupted her: “I was gonna ask him.”

      The crowd laughed as the president then issued a mock plea: “Help!”

      “I was hoping your answer might be a little more specific,” Kate deadpanned, the crowd now laughing at the commander-in-chief.

      She nervously plowed ahead: “Mr. Rumsfeld answered that Iraq has its own domestic laws, which he assumed applied to those private military contractors. However, Iraq is not currently capable of enforcing its laws, much less over our military contractors.” “Hmm,” said Bush.

      “Mr. President, how do you propose to bring private military contractors under a system of law?”

      “Yeah, I appreciate that very much,” he responded. “I mean, I wasn’t kidding. I was gonna pick up the phone and say, ‘Mr. Secretary, I’ve got an interesting question.’ That’s what delegation is. I don’t mean to be dodging the question, although it’s kind of convenient in this case [more laughter]. But I really will: I’m gonna call up the secretary and tell him you brought up a really valid question, and what are we doing about it? That’s how I work.”

      But the answer, of course, was that there was no answer.

      And CIA fanboy David Ignatius says that the CIA exists to break the laws of other countries.

      DAVID IGNATIUS: The CIA is an executive arm of the president and operates to do things that, you know, by their nature need to be hidden, need in some cases to be denied. If you can do it openly, you do it through another agency. We so often forget, the CIA exists really to systematically violate the laws of other countries.

      Has this been sorted out yet, or is it just all covered by a memo or a state secret or empire-strength pixie dust? Like I said, I haven’t kept up. Like I ever knew.

    • thatvisionthing says:

      How does an American who is labeled an enemy combatant ultimately get tried? Answer: he doesn’t.

      John Walker Lindh, Detainee 001, was tried in an American court, eventually. How is he different from Jose Padilla? Lindh got (plea bargain?) 20 years and judicial gagging. Isolation. I found the Daily Kos diary I mentioned in EW’s last Rumsfeld post. It has this comment by blueness:

      the government (7+ / 0-)

      caved on Lindh because it was afraid of what might come out in the hearing on Brosnahan’s suppression motion. Even if the motion failed at the trial court level, it could be reviewed all the way up the appellate chain. BushCo did not want that motion litigated, because evidence of Lindh’s abuse and torture would emerge. So it agreed to the 20 years.

      Brosnahan, on the other hand, was afraid if he went forward, in the climate then prevailing, he might both lose the motion & see his client sent away forever. It was a tough call, but in the end he did what any good criminal-defense lawyer is supposed to: what was best for his client. Still, I do wonder what might have happened if he’d pushed forward . . . .

      • thatvisionthing says:

        follow the buck…

        John Walker Lindh: The Original Bush Era Torture Victim?

        “His wasn’t just the first trial in the ‘War on Terror.’ Lindh was the first victim whose torture could be shown to have been officially sanctioned.”

        One of the documents obtained by Lindh’s lawyers, who finally got on the case once Lindh had been flown home by the government to face trial on a terrorism charge of helping to kill Americans, was a written memo from the office of then Secretary of Defense Donald Rumsfeld, instructing Lindh’s captors to “take the gloves off” in interrogating him. The memo, signed by Rumsfeld’s Defense Department General Counsel William J. Haynes II, does not lay out in detail the specific treatments to which Lindh can be subjected, but appears to simply tell his tormentors that they are free to use harsh measures.

        Taken in context with subsequent developments-the torture program developed at Guantanamo, at Bagram Air Base in Afghanistan, at Abu Ghraib in Iraq, and at various CIA-run black sites around the world, its seems likely that this Rumsfeld office memo, written back in December 2001, in a sense opened the door to the torture of captives with the encouragement of Rumsfeld and the Bush/Cheney administration.

        …if you can…

        And He Shall Be Judged
        By Robert Draper
        GQ June 2009

        “WHAT RUMSFELD WAS most effective in doing,” says a former senior White House official, “was not so much undermining a decision that had yet to be made as finding every way possible to delay the implementation of a decision that had been made and that he didn’t like.” At meetings, he’d throw up every obstacle he could. “Rumsfeld would say, ‘Golly, we haven’t had time to read all of these documents! I mean, this is radical change!’ ” the official adds. “And then, if you suggested that maybe he should’ve read all the documents when everyone first got them a week ago, he’d say: ‘Well! I’ve been all over the world since then! What have you been doing?’ ”

        The Department of Justice got a taste of such stalling tactics two months after September 11, when the president issued an order authorizing the establishment of military commissions to try suspected terrorists. Rumsfeld resisted this imposition of authority on his DoD turf. “We tried to get these military commissions up and running,” recalls one former DoJ official. “There’d be a lot of ‘Well, he’s working on it.’ In my own view, that’s cost the administration a lot. Hearings for detainees would’ve been viewed one way back in 2002. But by 2006″—the year commissions were at last enacted—”it’s not so appealing.”

        • thatvisionthing says:

          Has the original memo been released? I can find that Spencer Ackerman posted a PDF of the govt response to Lindh’s lawyers dated June 12, 2002 called Discovery Letter #64 — that describes the memo?

          Rumsfeld’s Lawyer in 2001: “Take the Gloves Off” on Lindh
          By Spencer Ackerman – June 25, 2007

          Apropos of the Washington Post’s exploration of Dick Cheney’s role in the development of interrogations policy, TPMmuckraker has obtained a document from the 2002 trial of John Walker Lindh — the American captured in Mazar-e-Sharif in 2001 fighting for the Taliban — in which Donald Rumsfeld’s general counsel, William J. Haynes II, is said to have advised the commander of U.S. forces in Mazar to “take the gloves off” when interrogating him.

  3. manys says:

    i bet there’s at least one interrogation recording of padilla that can’t be 100% accounted for, copies and all.

  4. earlofhuntingdon says:

    Funny how Gerstein and Gillers avoid the obvious: death threats and mock burials, among other mistreatment, are illegal. The question is will Padilla have a day in court or will the US be the only “civilized” country to ignore its legal obligations regarding those it has tortured and mistreated out of a novel, radical and excessive concern for “security at any price”, even though the price is paid by someone else and the enhanced security is illusory.

    • skdadl says:

      … or will the US be the only “civilized” country to ignore its legal obligations regarding those it has tortured and mistreated out of a novel, radical and excessive concern for “security at any price”, even though the price is paid by someone else and the enhanced security is illusory.

      Unfortunately, no. The current government of Canada is happy to trail in your wake, in fact sometimes looks eager to get out in front. The only likely successor — Michael Ignatieff, bff with Cass Sunstein — wouldn’t be much of an improvement.

      • thatvisionthing says:

        What about Australia?

        Naomi Wolf posted in February 2008 (Why Barack Obama Got My Vote) about Mamdouh Habib, whom she identified as a New South Wales Justice of the Peace who had been rendered, with the Howard govt’s collusion with the US, from Pakistan to Egypt for torture (Suleiman!) and then held in Guantanamo for four years before being released. At that point (2008) he was going to sue the Australia federal govt… I just checked wikipedia and there’s lots of legal activity but no successes. Also he was just mentioned in EW’s 2/14/11 post The CIA IG Report on Renditions as a screwup that CIA glosses over. But neither wikipedia nor EW mentions the Justice of the Peace angle, which I’m thinking is hugely significant. I’m also still thinking about the CIA guy and Obama calling him a diplomat. And I’m also thinking about how Bush canceled his Switzerland trip because of threatened prosecution. Scott Horton of Antiwar Radio interviewed Other Scott Horton of Harper’s then, who said Bush’s trouble was that he hadn’t applied for diplomatic immunity first, that it’s really a common procedure that could work for anyone, you or me. Presidents have it automatically, but ex-Presidents and war criminals like Kissinger have to get a Stay Out Of Jail Free card (my words) every time they go abroad. How does this all fit together, I wonder? There’s no transcript for the interview, but they cover it in the first 10-minute segment: Scott Horton Interviews The Other Scott Horton (sorry, no transcript).

  5. alabama says:

    This must be one of those rare moments where a profession–here, the legal profession–has to “profess” (“proffer”? “pronounce”?) its fundamental rule in order to survive.

    It would seem that death, any death, at the hands of the law, any law, can only be be pronounced and executed “legally” after a trial, any trial (with the trial itself bearing the threat of death). Apparently it’s okay to threaten and even inflict extreme discomfort before a trial, but you still have to let the legal code threaten the act of death itself. Were the DOJ not to acknowledge this point, it would, in a logical or “notional” sense, literally cease to exist. It would be committing institutional suicide.

    • thatvisionthing says:

      Guantanamo trials

      Morris Davis, a former chief prosecutor of the Guantanamo military commissions, spoke out about his instructions from [DoD General Counsel William Haynes] in late February 2008.[7] The Edmonton Journal quoted an interview Davis provided The Nation:

      “I said to (Haynes) that if we come up short and there are some acquittals in our cases, it will at least validate the process.”

      “At which point, his eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? . . . We’ve got to have convictions.'”

  6. jdmckay0 says:

    Is DOJ compelled by (some?) law to pony up $200 p/hr (outsource) Rummy’s defense? Would seem to me this will afford him better (more corrupt) counsel, no?

    Why not hire Yoo for the job, would seem like a perfect fit to me.

      • NMvoiceofreason says:

        But it is THOUSANDS of billable hours.

        I know lots of law firms in my town that could live off of that for YEARS.

        • NMvoiceofreason says:

          Reportedly, there is an old lawyer maxim that goes “A lawyer that represents himself has a fool for a client”.

          A new maxim might be “A lawyer who is represented by a co-conspirator has no representation at all.”

  7. NMvoiceofreason says:

    Legal ethics experts said the Justice Department doesn’t have any.
    Our DOJ Refuses to Send Officials to Jail – Scott Bloch Edition
    Whistleblowers Concerned that DOJ Refuses to Jail Scott Bloch, Too
    OPR final report, bad opinions, no misconduct
    Six Questions for Jesselyn Radack
    John Walker Lindh case
    Horn v. Huddle et. al., 636 F.Supp.2d 20 (2009) 106. “This case has already been delayed long enough by the government’s failure to disclose information that had long been unclassified.”
    Horn v. Huddle, ___ F.Supp.2d ___, ___ (2009 WL 2144131 at *4) (D.D.C. July 16, 2009) (court refuses to give “a high degree of deference” to of government’s “prior misrepresentations regarding the state secrets privilege in this case”)
    Matter of Doe, 801 F. Supp. 478 (D.N.M. 1992). As Judge Burciaga observed: “When a government lawyer, with enormous resources at his or her disposal, abuses this power and ignores ethical standards, he or she not only undermines the public trust, but inflicts damage beyond calculation to our system of justice. This alone compels the responsible and ethical exercise of this power.”, In re Doe, 801 F.Supp. At 480. see also IN RE: G. Paul HOWES, NM (1997).

    And these are the people who today still say the Justice Department has the ability to sanction torture.
    “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” Holder said.
    Felony murder is ok too. “That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.” Holder said.

    People who say they have the right to have you tortured to death – generally not found to be very ethical.

  8. eCAHNomics says:

    Glad to see people willing to review Lindh’s case.

    I remember the atmosphere of hate toward him in the U.S. at the time, but I couldn’t figure out what he’d done to deserve it. He was just some hapless latter-day flower child who got caught up in a gigantic FUBAR. As near as I could figure out, he had no idea who he was fighting.

    I could also not figure out why his lawyer settled for such a draconian plea bargain, but that was owing to my naivete. Brosnahan immediately recognized what a symbol his client had become, how lawless the USG was, and prolly rightly feared Lindh would be executed.

    • ottogrendel says:

      I suspect that part of it was that Lindh’s “deviant” actions were a direct affront to American Exceptionalism. He was not just a nonconformist, but his nonconformity exposed chinks in the façade of the national myth. How could anyone be dissatisfied with the greatest nation the world has ever known to the point that they would be willing to change sides (in that ridiculous dichotomy of “us” and “them”)? Could life in the US be so lacking in real meaning and fulfillment that a citizen, in a fit of existential angst, would defect?

      And as “one of our own,” he was more dangerous and problematic than those foreign, TV abstractions flashing across the endless loop of the Two Minutes Hate. Remember when we called the faceless, enemy “other” Communists, and the special opprobrium reserved for those supposed Commie sympathizers—or worse—who were actually US citizens? The insecurity and horror of not having clear lines of demarcation: “Mom, I am not now, nor have I ever been, a member of the Communist Party.”

      Also, since the primary focus of the GWOT, Neocon fascism, the permanent state of exception, etc. is domestic control, it only makes sense that victim/example Number 1 should be a US citizen. Those seeking to exercise control were letting the rest of us know what the score was.

  9. sfmikey says:

    In this shitstorm of words, does anyone sense that jutice will be done? Perhaps Rumsfeld, Bush and Cheney should take their legal case to Switzerland or The Hague or Spain. Prove it there!

    Sad to admit it, as an American, but I think justice has a better chance of prevailing there than here. Realistically, I don’t expect anyone to pay the price for criminality besides low-ranking military types. The ultimate verdict will be in history books, long after the principals are dead–assuming we don’t have censorship in America.

  10. waynec says:

    FWIW, your dollar$ were going to the “Justice” Dept anyway, for their defense, only now we should be able to determine how much will be spent, whereas with DoJ, it’s just $$ from their budget

  11. emptywheel says:

    Btw,I didn’t notice in Gerstein’s report, but he reveals that David Rivkin will be representing Rummy.

    As I noted, that means it’s unclear whether Rummy wants a defense or wants propaganda, which is Rivkin’s forte.

    • NMvoiceofreason says:

      I think Rummy is still thinking this is about messaging – doesn’t realize the nature of what is coming – years and years of being questioned about every detail, something that just gets him inherently angry.

      Did you have a chance to read Judge JEFFREY S. WHITE’s order in Padilla v. Yoo? So carefully reasoned, well documented and cited for every point – quite unlike Judge Richard Mark Gergel just throwing up his hands and saying “Can’t try this! Can’t Try this!” in Lebron v. Rumsfeld.

      Don’t know what you have on your plate, but comparing the two orders face to face, in that transcendent EW style could be a great service to the world. A Mikva.

  12. ondelette says:

    Death threats cross the line from Article 16 to torture by any measure in the CAT. That’s why Yoo was worried about them.

    • NMvoiceofreason says:

      Waterboarding crosses the line, in CAT and in binding US precedent. Didn’t worry Yoo much and still doesn’t.

      • Mary says:

        And with Statutes of Limitation deliberately run out by the Bush and Obama DOJ’s and the brave men and women who show up and work for the proliferation of state sponsored torture ever day – Yoo’s gotten the last laugh.

        Obama and Holder have been the worst thing that could have happened to our justice system – well, that and the fact that so many lawyers appear to be willing to work to make this nation a state sponsor of torture and to descretate the Constitutional protections of anyone other than their friends and pals and inner circles.

        • Gitcheegumee says:

          Our government… teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

          Louis D. Brandeis

        • Mary says:

          I hadn’t seen that qutoe, but it’s a good one and I agree with it. It’s why I was so upset about how the DOJ was reacting for so long – it’s silence and casual lack of concern with intermittent spells of active endorsements of Executive depravity basically taught Americans to be supportive of torture.

        • Gitcheegumee says:

          Brandeis is the voice of sanity ,imho, in so many ways.What an intellect-exceeded only by his character.

          Learned Hand is another of my favorites.

          Gosh, I missed so much today…(Doing a mitzvah for my neighbor)

          BTW,TVT did you see the Gawker stockpile of Rumsfeld memos? The last pages ,78-83 gave Haynes’ memo to Rumsfeld on the pros and cons of how and in what venue to try Lindh.

          Rosalind had a link to all of them on an earlier thread here. Great stuff.

        • thatvisionthing says:

          and to Mary @44: That’s the quote Timothy McVeigh used at his sentencing:

          … McVeigh spoke only briefly when afforded the chance a few moments before U.S. District Judge Richard P. Matsch imposed the death sentence. Despite expectations he might express remorse or offer some insights into his motive for bombing the Alfred P. Murrah Federal Building on April 19, 1995, McVeigh merely repeated a quotation from a 1928 Supreme Court dissenting opinion written by the late Justice Louis Brandeis.

          “If the court please, I wish to use the words of Justice Brandeis dissenting in Olmstead to speak for me,” McVeigh told the court. “He wrote, `Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.’ That’s all I have.”

          Neither McVeigh nor his attorneys offered any interpretation of Brandeis’s words, written in a wiretapping case, Olmstead v. United States. In that dissent, Brandeis also wrote: “If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

        • thatvisionthing says:

          Here’s Wikipedia’s summary of Brandeis’s dissent in Olmstead.

          And here’s the case itself — oh man, I want to quote the whole dissent (but I’m not):

          JUSTICE BRANDEIS: When the Fourth and Fifth Amendments were adopted, ‘the form that evil had theretofore taken’ had been necessarily simple. Force and violence were then the only means known to man by which a government could directly effect self-incrimination. It could compel the individual to testify-a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life-a seizure effected, if need be, by breaking and entry. Protection against such invasion of ‘the sanctities of a man’s home and the privacies of life’ was provided in the Fourth and Fifth Amendments by specific language. Boyd v. United States, 116 U.S. 616, 630 , 6 S. Ct. 524. But ‘time works changes, brings into existence new conditions and purposes.’ Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet. [277 U.S. 438, 474] Moreover, ‘in the application of a Constitution, our contemplation cannot be only of what has been, but of what may be.’ The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. ‘That places the liberty of every man in the hands of every petty officer’ was said by James Otis of much lesser intrusions than these. 1 To Lord Camden a far slighter intrusion seemed ‘subversive of all the comforts of society.’ 2 Can it be that the Constitution affords no protection against such invasions of individual security?

          A sufficient answer is found in Boyd v. United States, 116 U.S. 616 , 627-630, 6 S. Ct. 524, a case that will be remembered as long as civil liberty lives in the United States. This court there reviewed the history that lay behind the Fourth and Fifth Amendments. We said with reference to Lord Camden’s judgment in Entick v. Carrington, 19 Howell’s State Trials, 1030:

          ‘The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case there before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employe of the sanctities of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal se- [277 U.S. 438, 475] curity, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense-it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence of a crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.’3

          In Ex parte Jackson, 96 U.S. 727 , it was held that a sealed letter intrusted to the mail is protected by the amendments. The mail is a public service furnished by the government. The telephone is a public service furnished by its authority. There is, in essence, no difference between the sealed letter and the private telephone message. As Judge Rudkin said below:

          ‘True, the one is visible, the other invisible; the one is tangible, the other intangible; the one is sealed, and the other unsealed; but these are distinctions without a difference.’

          The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all con- [277 U.S. 438, 476] versations between them upon any subject, and although proper, confidential, and privileged, may be overheard. Moreover, the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.

          Ya think they cover that in Obama’s con law classes?

        • NMvoiceofreason says:

          Yes, and his implication that the road to hell is paved with good intentions is very poignant today. We are at a crossroads, where the choices are stark. We can choose one road, the rule of law, and there are painful truths about who we are and what we have done to be revealed and confronted. Some will find justice, some, justice will find them. But the dark road, the one that leads to a time of torment unlike any previously known, is the lawless road, the road where the light of freedom and justice is extinguished for temporary safety, temporary security. I took an oath once:
          I, insert your name here, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of a citizen of the United States of America. So help me God.

          I will discharge the duties of that office while I still draw breath.

        • thatvisionthing says:

          Oh, hey, damn, too much to say!! I’m so sorry, I know what’s coming…

          First last or last first? Damn…

          Ok, last first. Daily Kos has screwed up its search function in its new revamp, so I can’t find the link I’m looking for, but I had gripes and foreboding at Obama’s inauguration in the many ouch ways I felt he not only royalized it and removed it from the hands of the We The People/Yes We Can , but also in that he blew the ONE chance we’d ever get. Like, no Fanfare for the Common Man? Damn. Gooped up Tis a Gift to be Simple to where no one could hum along? Damn. And can you imagine how astoundingly fabulous The Star-Spangled Banner would have sounded if he had asked that crowd of million(s?) to sing it? Whenever Garrison Keillor asks his audience to sing it I practically break into tears. Rick Wright gets invited, Garrison Keillor nnnnno. But… even more than that… the thing above all that I wish he had done? I THINK it was Granny Doc who used to do this at antiwar rallies. It was a Granny anyway. She told the assembled people that citizen was the highest office in the land and she read out the oath of office and swore them in. Yes he could have. But no he didn’t.

          The other thing, first last, is re Timothy McVeigh. People here probably know me from the many times I’ve quoted Jesse Trentadue’s letter to Sen. Leahy asking to testify at Eric Holder’s AG confirmation hearing:

          No one could be less suitable to uphold the principles of justice in America than Eric Holder. And I would like the opportunity to appear before the Judiciary Committee to testify to that fact.

          Jesse C. Trentadue to Patrick Leahy, December 19, 2008

          You can search “Eric Holder sucks” or “Trentadue” here and you’d probably hit nothing but my links. It’s a long story, or maybe it’s just that I can’t condense it. See here for example. Jesse’s brother Kenney was killed (apparently by FBI interrogators?) at an Oklahoma federal prison in 1995, where he had been transferred after he was picked up for a parole violation at the Tijuana border, apparently because he matched the description for Oklahoma bombing suspect John Doe No. 2. A ways after Kenney’s death, Jesse got tipped off about the bombing connection, including by a message from Timothy McVeigh, and then Jesse started years of FOIAing and litigating; he’s a lawyer. You’re saying that we’re at a fork in the road. I’m sure Jesse would say that we hit that fork a ways back and went the wrong way, with many thanks to Eric Holder, back when he was a deputy AG in the Clinton DOJ.

          Specifically regarding Eric Holder’s role, from the interview:

          Horton: What do you know about current Attorney General Eric Holder and his involvement in the Oklahoma City bombing and/or the cover-up thereof?

          Trentadue: Well I know Holder was the one in charge of covering up my brother’s murder. He put together what they call a roll-out plan called the Trentadue mission, and it was to prevent any kind of inquiry into my brother’s murder, no hearings in Congress. I mean, he strong-armed Senator Hatch, Senator Dorgan, every other senator he could get a hold of to stop any kind of investigation into my brother’s murder. He did that personally.

          Horton: And how do you know that?

          Trentadue: Because I have a whole bunch of e-mails back and forth involving Holder and implementing “the Trentadue mission” he called it, documenting what he did and what his role was as Deputy Attorney General. And I suspect he played the same role in keeping a lid on the bombing.

          Horton: So all those years that I was scratching my head trying to figure out how it could possibly be that Congress never convened a single hearing on any subcommittee in either house when it was run by either party on this case, it was because Eric Holder was doing the shuttle diplomacy there between branches of government preventing Dan Burton, Orrin Hatch, Arlen Specter, Patrick Leahy, people like that, from investigating this case.

          Trentadue: Both my brother’s murder and the bombing. It’s my understanding there’s never been a hearing on the bombing.

          Amazing strongarming has gone into getting Kenney’s death ruled a suicide. Ya think?

          And the guy in charge of covering that up and the fact that the FBI and ATF and Southern Poverty Law Center were all in/informed on in the Oklahoma bombing beforehand, is Obama’s pick for attorney general. And the other names in Jesse’s FOIAs — David Margolis, who spiked the OLC Report, and Robert Litt, who can apparently veto an act of Congress (wtf?) — they’re still there. The Department of Justice is anything but and it has been that way for…ever? For a long time. I’m thinking Hoover, I’m thinking Kent State when I was a teenager. They wanted to prosecute the kids for sedition and civil rights violations, not the National Guard who shot them. And pfft there’s your First Amendment.

          I’m foggy on this, but I think at McVeigh’s trial John Doe No. 2 evidence was excluded, and he got the death penalty, but at Terry Nichols’ trial John Doe No. 2 evidence was allowed and the jury did not give him the death penalty in some measure because of that? Is the big secret that John Doe No. 2 was one of the govt informers and the govt knew about the bombing before it happened? Is the big secret that Timothy McVeigh was “guided” by the govt? I don’t know, I’ve read a lot of stuff, but it’s certainly nothing that ever got examined by the court, except the ATF agent who submitted her evidence that she had been along when the Murrah building was cased? Her statement got sealed I think. The informer she was handling was excluded by the judge as irrelevant. The jury never knew. The DOJ railroading McVeigh to the death penalty while its own hands were dirty? That’s what I think of when I think of McVeigh quoting Brandeis at his sentencing. See, I got to the point.

          One of the things Jesse FOIA’d and finally got, kind of, was videotapes. A videotape had been shown to some reporters at the time of the bombing but then the FBI withdrew it. You’d think it would be perfect evidence for the trial, we all know how it goes, right? McVeigh parks the Ryder truck, McVeigh sets the bomb off… Except the news reports describing/re-creating what reporters had seen on the tape said that McVeigh left first and it was John Doe No. 2 who set the bomb off. And when Jesse finally got the tapes, they all went blank at that spot. And certainly the DOJ withheld exculpatory evidence from the court even to the end. Here’s one story (McVeigh Trial Bombshell Surfaces). And that letter Jesse wrote to Pat Leahy requesting to testify? This story says Jesse’s request was turned down by the DOJ.

          The Department of Justice, where Holder served as deputy attorney general under President Bill Clinton, referred a request for comment to the Presidential Transition Team (PTT). A statement issued by an Obama transition aide denied Trentadue’s allegations.

          “Multiple independent investigations have found that Kenneth Trentadue’s death was a suicide,” the statement said. “There is simply no evidence to support the claims in this letter.”

          No evidence. And the guy in charge of the coverup is who we have to wait on to restore justice to America? I’d laugh but… I just can’t. It’s not a Department of Justice. It’s the Department of Obstruction of Justice. And Eric Holder sucks, and so do all his enablers.

        • tjbs says:

          Mary, who I greatly respect and admire, Is there a statute of limitations on MURDER?

          Though no laughing matter, these dead may have the last laugh from the other side. He who laughs last and all that.

        • NMvoiceofreason says:

          Actually, as long as they keep it secret, the fraudulent concealment doctrine tolls the Statute of limitations – for criminal, for civil too. In other words, time stands still until their full participation is revealed in public. State secrets isn’t looking like such a safe harbor now, is it?

          Combine that with the fact that there IS NO state secrets protection for crimes – since the actor ceases to be a “state’ (or government) actor, and this is all going to end very badly for them all.

        • Mary says:

          I don’t buy it unfortunately. I think there have been any number of “investigations” that can be pointed to under a claim of non-concealment – classified and redacted investigations, but govt investigations that helped whitewash that fraudulent concealment issue. And the argument as to criminal acts not being eligible to be states secrets has been shot down already when it has been tried – especially where the entity seeking access was an individual and not a prosecutor (thank our DOJ who is relentlessly mean spirited and nasty about whistleblowers but is okeydokey fine with torture and torture killings and bombing missionary planes).

          I have made them and will make them, but it’s a nation that, especially with the likes of an Elena Kagan on the Sup Ct, isn’t buying. So that also derails a fraudulent concealment argument bc you can’t be “fraudulently concealing” a state’s secret you are required to keep classified – – sure, you can argue that the actors can’t be making the classification bc of conflicts, but then you have the Obama admin coming in and giving support to the classification and a whole litany of DOJ lawyers and IG “investigators” and special prosecutors doing the same.

          The rot from within DOJ has pretty much eaten through what was left of common law justice.

        • NMvoiceofreason says:

          Ensuring Lawful Interrogations was one of the first acts of the Obama administration, on January 22, 2009. It repealed and repudiated the Bush Administration’s guidance on interrogations, and put America back in conformance with the law. His reluctance (and AG Holder’s) to actually prosecute those people who issued the illegal guidance and those who followed it, is still a black mark. But we have our erasers out.

    • emptywheel says:

      Probably not.

      It probably has more to do with him objecting to the coffin treatment the CIA had threatened to use w/Zubaydah because FBI had already explicitly condemned that treatment as torture.

      Yoo went to great lengths to dismiss the possibility that waterboarding is a death threat, which of course it is.

  13. NorskeFlamethrower says:


    Citizen emptywheel:

    Hold still Citizen emptywheel, and let me see the pocket on yer blouse cuz here comes another Norske Medal of Citizenship…and it’s got a special oakleaf cluster for this one…great post!

    I think that all you lawyer folks are missin’ the bigger issue behind the entire leagalization of the Iraq War, however, and that is the hollowing out of the military and the contracting out of their mission with the corporate consolidation of the State Department and DOD through the permanent security aparatus (read CIA here). Remember that as a candidate Mrs. McClinton defended contracting with Blackwater for the security of our embassays…I won’t ever forgive the Democratic Party for allowing this to happen without ever callin’ it to question publically.

    The people of the Middle East are takin care of our US subsidized dictators and as a result, the corporatists are retrenchin’ back into this country while continuing to send mercenaries to destabilize those countries and allow the kids in our standing army there to draw fire and get killed.

    What I would like to see is a couple of Firepup lawyer types with Sister Marcy Wheeler’s chops take on the project of reviewing the enabling legislation and executive actions that have franchized the corporate mercenary army that now has deployed at least 150,000 folks around the globe. I still think that our “legal system” is a fraud but serves the purpose of exposing wrong-doing even if it can’t stop it so let’s advance the ball into the frontcourt. I think that even Glenzilla has dropped the ball on this but he’s just one Citizen…he can’t do it all.


    • thatvisionthing says:

      I think that all you lawyer folks are missin’ the bigger issue behind the entire leagalization of the Iraq War, however, and that is the hollowing out of the military and the contracting out of their mission with the corporate consolidation of the State Department and DOD through the permanent security aparatus (read CIA here). Remember that as a candidate Mrs. McClinton defended contracting with Blackwater…

      See comment in John Cusack’s The Real Blackwater Scandal: Build a Frontier, You Get Cowboys, Part II, (HuffPo 10/11/07):

      “The military is sworn to protect the Constitution of the United States from enemies both foreign and domestic. What are the corporate armies sworn to protect?” – elephty

      • thatvisionthing says:

        and re Hillary:

        Remember, Hillary didn’t just vote for the Iraq War, she said “With conviction I support this resolution­” and then she persistent­ly defended the war after it began, until it went bad and she claimed it was mishandled and then it got worse and she claimed she was fooled by George Bush. As Bill Maher put it: “Why should Americans vote for someone who can be fooled by George Bush?” – DANIELLECLARKE

  14. Mary says:

    While there were worse things on the torture front, the problem DOJ has with death threats is that they were so very clearly spelled out by statute as being torture—-000-.html

    You start with torture as including severe mental pain and suffering

    “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering

    and then you go to the definition of severe mental pain and suffering also in the statute:

    “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from

    and that gets you to

    the threat of imminent death; or

    as one of the directly specified elements. And when you disappear someone, specifically so you can – as the military said it was doing, chillingly, in their declaration – make them understand that their have to keep the people who disappeared them happy or suffer consequences, that they are helpless to defend themselves, I think prolonged isn’t going to be an issue.

    • thatvisionthing says:

      alabama @10 raises a really good point — that the trials themselves are death threats. That’s apparently why Lindh’s lawyer caved and took the plea bargain — he had no faith that Lindh wouldn’t be railroaded to a death sentence. I mean, look who was stage managing and doing the scary “American Taliban” PR and lying to the press about Lindh having access to a lawyer early on — Attorney General John Ashcroft. How convenient that Lindh is gagged as part of the bargain! Repeating comment ghostof911 left in July re Lindh:

      He would also have to consent to a gag order that would prevent him from making any public statements on the matter for the duration of his 20-year sentence…

      Just how binding is that 20-year gag order if the confession was made while under a threat of continued torture?

      Extending an invitation to Amnesty International to work to have this gag order lifted.

      Is there a way to lift the gag order?

      P.S. This is weird. Ashcroft’s wikipedia page does not even mention Lindh.

      hmm… Lindh’s wikipedia page does not mention death as a sentencing option, just three life sentences, so I guess that isn’t torture by DOJ? Here’s the gag order part:

      To forestall this possibility, Michael Chertoff, then-head of the criminal division of the U.S. Department of Justice, directed the prosecutors to offer Lindh a plea bargain, to which, Lindh would plead guilty to two charges: — serving in the Taliban army and carrying weapons. He would also have to consent to a gag order that would prevent him from making any public statements on the matter for the duration of his 20-year sentence, and he would have to drop any claims that he had been mistreated or tortured by U.S. military personnel in Afghanistan and aboard two military ships during December 2001 and January 2002. In return, all other charges would be dropped.

      • thatvisionthing says:

        and he would have to drop any claims that he had been mistreated or tortured by U.S. military personnel in Afghanistan and aboard two military ships during December 2001 and January 2002.

        That’s a detail that bugs me. The guy pushing back against Rumsfeld’s torture directives was the Navy’s General Consul Alberto Mora. Yet Navy ships were the place of choice to send Lindh to (USS Peleliu and USS Bataan in December 2001-January 2002) and Australian David Hicks (same time?), and Jose Padilla was sent to a Navy brig in South Carolina after his arrest in May 2002 and held there for years under human-ruining conditions.

        Wikipedia (dare I trust?) places the beginning of Mora’s resistance to Haynes/Rumsfeld at December 2002. Is there a disconnect? Is there someone else involved, like [Addington?] going to OLC Deputy Counsel John Yoo (Dr. Yes) to write the memo he wanted rather than to Yoo’s superior? (Can’t find the Dr. Yes story right now) Maybe there’s a Captain Yes in the Navy?

        Or maybe he was preceded by years of Admiral Yesses? Jim White’s diary on the USS Bataan quotes Clive Stafford Smith’s Reprieve (dead link):

        USS Bataan is one of the US government’s most infamous ‘floating prisons’. Prison ships have been used by the US to hold terror suspects illegally since the days of President Clinton.

        At least nine prisoners are confirmed to have been held aboard the USS Bataan, including Ibn Al-Sheikh Al-Libi, who recently died in mysterious circumstances in Libyan custody.

        • thatvisionthing says:

          ThinkProgress has a Katrina timeline, and on Tuesday, August 30, 2005:

          U.S.S. BATAAN SITS OFF SHORE, VIRTUALLY UNUSED: “The USS Bataan, a 844-foot ship designed to dispatch Marines in amphibious assaults, has helicopters, doctors, hospital beds, food and water. It also can make its own water, up to 100,000 gallons a day. And it just happened to be in the Gulf of Mexico when Katrina came roaring ashore. The Bataan rode out the storm and then followed it toward shore, awaiting relief orders. Helicopter pilots flying from its deck were some of the first to begin plucking stranded New Orleans residents. But now the Bataan’s hospital facilities, including six operating rooms and beds for 600 patients, are empty.” [Chicago Tribune]

          Timeline shows that that’s the day Bush was playing air guitar in San Diego. And when he did his flyover of Katrina the next day and was looking down out Air Force One’s window, maybe he could see the USS Bataan too.

          Jim White: “It’s hard to imagine how crew members would respond to such wildly different assignments as humanitarian relief and rendition/prison with torture.” (USS Bataan also sent to Haiti and Asian tsunami)

          Did Bataan finally help with Katrina? Why did it just sit there? Reminds me of this passage from the 2009 GQ article on Rumsfeld, full circle:

          A FINAL STORY OF Rumsfeld’s intransigence begins on Wednesday, August 31, 2005. Two days after Hurricane Katrina made landfall in New Orleans—and the same day that Bush viewed the damage on a flyover from his Crawford, Texas, retreat back to Washington—a White House advance team toured the devastation in an Air Force helicopter. Noticing that their chopper was outfitted with a search-and-rescue lift, one of the advance men said to the pilot, “We’re not taking you away from grabbing people off of rooftops, are we?”

          “No, sir,” said the pilot. He explained that he was from Florida’s Hurlburt Field Air Force base—roughly 200 miles from New Orleans—which contained an entire fleet of search-and-rescue helicopters. “I’m just here because you’re here,” the pilot added. “My whole unit’s sitting back at Hurlburt, wondering why we’re not being used.”

          The search-and-rescue helicopters were not being used because Donald Rumsfeld had not yet approved their deployment—even though, as Lieutenant General Russ Honoré, the cigar-chomping commander of Joint Task Force Katrina, would later tell me, “that Wednesday, we needed to evacuate people. The few helicopters we had in there were busy, and we were trying to deploy more.”

          goes on through several more days of Rumsfeld blocking, then gets to Friday:

          Bush convened a meeting in the Situation Room on Friday morning. According to several who were present, the president was agitated. Turning to the man seated at his immediate left, Bush barked, “Rumsfeld, what the hell is going on there? Are you watching what’s on television? Is that the United States of America or some Third World nation I’m watching? What the hell are you doing?”

          Rumsfeld replied by trotting out the ongoing National Guard deployments and suggesting that sending active-duty troops would create “unity of command” issues. Visibly impatient, Bush turned away from Rumsfeld and began to direct his inquiries at Lieutenant General Honoré on the video screen. “From then on, it was a Bush-Honoré dialogue,” remembers another participant. “The president cut Rumsfeld to pieces. I just wish it had happened earlier in the week.”

        • NMvoiceofreason says:

          A medical ship with the ability to land and launch aircraft is the perfect place to torture prisoners. Torture there was more severe than at Guantanamo, which is really saying something.

        • thatvisionthing says:

          One of the most beautiful sailing ships in the world, Chile’s Esmeralda, is an infamous torture ship. I did a diary on it in 2008 on Daily Kos: John McCain, what about torture ships? I had forgotten this stat:

          “By its own admission, the US government is currently detaining at least 26,000 people without trial in secret prisons, and information suggests up to 80,000 have been ‘through the system’ since 2001.

          And, say again, God bless Ted Kennedy!

          Protest marks Chilean tall ship’s visit

          In 1986, the U.S. Senate approved a resolution urging withdrawal of an invitation for the Esmeralda to participate in an event connected with the 100th birthday celebration of the Statue of Liberty.

          “The Statue of Liberty would weep at the sight of the Esmeralda entering the gateway of freedom at New York harbor,” said Sen. Edward Kennedy, D-Mass.

          The Senate measure described the Esmeralda as “the notorious vessel used for the torture of 112 political prisoners at the time Gen. Augusto Pinochet seized power in a military coup” in 1973. Pinochet remained in power until 1990. The ship took part in the Statue of Liberty celebration.

          with a followup moment of poignancy in the comments (scroll down)

        • thatvisionthing says:

          I thought of this after I signed off last night. Rummy blocked the military from helping out in Katrina for almost a week before Bush had enough of it. The Bataan with all its capabilities just sat there and did nothing. The search-and-rescue helicopter units 200 miles away sat there and did nothing but wonder why they weren’t being called on. But private contractor Blackwater was deployed in New Orleans for mayhem and thuggery. Who ordered that? Rummy or Rice or — ?

          And cf quote @74 (“The military is sworn to protect the Constitution of the United States from enemies both foreign and domestic. What are the corporate armies sworn to protect?”) Rummy’s reason for not having the military go in was “unitary command.” I guess I’m wondering who Blackwater answered to, and how they coordinated with other rescuers, and how Rumsfeld reasoned it.

        • Gitcheegumee says:

          What a superb question,TVT.

          And I have never seen it neither asked….nor answered.

          Perhaps former Louisiana Governor Kathleen Blanco would have some info…

          certainly General Russ Honore would have some data.

          Do they have website,I wonder?

          I know that Honore does speaking engagements for various organizations.

        • Gitcheegumee says:

          Here’s an excellent link; however, I don’t think it addresses your specific question.

          Worth a look,anyhoo-lots of concise info I had not seen before.

          JTF KatrinaOct 11, 2005 … Days before Hurricane Katrina hit New Orleans, NORTHCOM Commander, … support in the affected regions — something the Posse Comitatus Act …

 – Cached – Similar

        • thatvisionthing says:

          Can’t see your link — maybe it’s the firewall? Same thing for the Gawker link to the Rumsfeld/Lindh PDFs, can’t see them. :-(

          Anything there?

        • thatvisionthing says:

          Finding more. Both ThinkProgress and Wikipedia have a dead link to a September 4, 2005 Chicago Tribune story (Navy ship nearby underused, excerpt @54), but it’s cached on google. As of September 4, 2005 (seems to be the same text ThinkProgress used for the August 30 excerpt… a date issue?):

          But now the Bataan’s hospital facilities, including six operating rooms and beds for 600 patients, are empty. A good share of its 1,200 sailors could also go ashore to help with the relief effort, but they haven’t been asked. The Bataan has been in the stricken region the longest of any military unit, but federal authorities have yet to fully utilize the ship.

          Captain ready, waiting

          “Could we do more?” said Capt. Nora Tyson, commander of the Bataan. “Sure. I’ve got sailors who could be on the beach plucking through garbage or distributing water and food and stuff. But I can’t force myself on people. … If they say hospitals on the beach can’t handle it … if they need to send the overflow out here, we’re ready. We’ve got lots of room.”

          Navy helicopters from the Bataan and Pensacola Naval Air Station in Florida have joined the growing aerial armada of choppers that are lifting hurricane survivors from flooded surroundings and delivering food and water.

          More will arrive throughout the weekend [me: this story is dated Sunday?] when the aircraft carrier USS Harry S. Truman and four other Navy ships, including three amphibious assault ships–really mini-aircraft carriers for helicopter use–arrive in the gulf from Norfolk, Va. The USS Comfort, a hospital ship from Baltimore, also is steaming there.

          A 135-foot landing craft stored within the Bataan, the LCU-1656, was dispatched to steam up the 90 miles of Mississippi River to New Orleans. It took a crew of 16, including a doctor, and its deck was stacked with food and water. The craft carries enough food and fuel to remain self-sufficient for 10 days. … Then the Bataan was ordered to move to the waters off Biloxi, Miss., and LCU-1656 was ordered to return. The landing craft was 40 miles from New Orleans, but it wouldn’t be able to deliver its cargo. “It was a disappointment,” Fish said. “I figured we would be a big help in New Orleans. We’ve got electricity, and the police could have charged up their radios. We’ve got water, toilets. We’ve got food.”

          Now sailing within 25 miles of Gulfport, Miss., the Bataan has become a floating warehouse. Supplies from Texas and Florida are ferried out to the ship, and the helicopters distribute them where Federal Emergency Management Agency personnel say they are needed.

          The Bataan has also taken on a substantial medical staff. Helicopters ferried 84 doctors, nurses and technicians 60 miles out to the ship from the Pensacola Naval Air Station on Friday, and on Saturday afternoon 24 of the medical personnel were flown to the New Orleans Convention Center where they expected to augment the staff of an Air Force medical clinic on the center’s bus parking lot. …

          So post Saturday afternoon would be Bataan’s first chance to help medically?

          There’s a sidebar link to a (Friday) September 2, 2005 story Navy pilot says `a lot of people’ still trapped that seems to conflict with the GQ version where the military wasn’t deployed till Bush cut out Rumsfeld on Friday… This one has Honore (read Rumsfeld?) ordering the Bataan to Mississippi (away from New Orleans) on Thursday, before GQ’s Friday meeting, and mentions lots of military planning and usage. Thousands of troops. Maybe it’s a distinction between “security” and “aid”?

          …The Navy helicopter missions, increasing by the day, are just one piece of an aerial and land assault on the shorelines, towns, ports and cities that have been devastated and cut off by Hurricane Katrina.

          The Pentagon shifted resources and equipment to Louisiana, Mississippi and Alabama in earnest Thursday, three days after the storm, as it became clear that state and federal disaster plans had underestimated what it would take to rescue residents, deliver humanitarian relief and restore order.

          In all, nearly 30,000 military personnel have been committed to the rescue and relief effort, and most of them will be in place over the next few days, according to Pentagon officials.

          At least 7,400 National Guard troops were scheduled to be in place in Louisiana late Thursday, and 6,000 more would be deployed by that time in Mississippi, Lt. Gen. Russel Honore, commander of the Pentagon’s Joint Task Force Katrina, said in a Pentagon briefing. The buildup, he said, would continue until each state had 12,000 troops.

          “There is a major effort in Louisiana for security-type forces,” Honore said, acknowledging the difficulties New Orleans police have had in controlling looting and related activity.

          Honore said the troops will include “1,400 additional security forces in Louisiana today [Thursday], with an additional 1,400 tomorrow.”

          Federal disaster officials recognized the need for a larger military role on Sunday, when the forecast predicted New Orleans could take a direct hit from Hurricane Katrina.

          Navy forces also continued to build in the Gulf of Mexico and its bases Thursday. Honore ordered the USS Bataan, an amphibious assault ship, to move to off the coast of Biloxi, Miss., to help with relief efforts there. A hospital ship also has been dispatched from Baltimore.

          Since Tuesday, pilots from the Pensacola Naval Air Station’s search-and-rescue unit have been flying up the coastline and into New Orleans, directed there by the Coast Guard.

          They were joined Thursday by seven more Navy Sea Hawk helicopters dispatched from Mayport Naval Station in Jacksonville.

          Initially, the pilots were instructed to fly along the coastline to look for survivors, delivering food, water and medical teams. … The second day brought the Navy into New Orleans, an hour-and-20-minute flight from Pensacola. The Navy crews would work for about that long over the city, plucking residents from rooftops, streets and the roofs of submerged cars, before they had to turn back for home or find a place to refuel. [me: Wait! It’s Wednesday! The Bataan’s right there!]

          When they arrived to evacuate patients from New Orleans’ Memorial Hospital, the pilots found a building surrounded by 10 feet of water.

          By Thursday, the 11 choppers flying out of Pensacola found themselves vying for airspace and fuel with hordes of helicopters from the Coast Guard, National Guard and Marine Corps. Air traffic control is a concern; the pilots rely on each other to navigate in the increasingly crowded skies. And as they start to fly night missions, they must be aware of the many unlit radio towers. …

          Doesn’t this contradict the GQ story? The Pentagon = Honore orders the Bataan to Mississippi, away from New Orleans, on Thursday. A big rescue landing craft is called back with its supplies undelivered. Is there a distinction between the 11 Pensacola +7 Mayport helicopters, and the 200 unused Hurlburt ones mentioned in GQ? Before Bush ever cuts Rumsfeld out on Friday, there are so many helicopters in the “increasingly crowded skies” that it’s dangerous. And is it strange that even while the Bataan and its staff are not being used, all these other Navy ships plus more medical staff for the Bataan are being ordered to the area?

          This is funky.

        • thatvisionthing says:

          Rummy’s reason for not having the military go in was “unitary command.”

          sorry… “unity of command”

        • alabama says:

          Can the principle “unity of command” tie Rumsfeld to the torture chain, and if it can, why not Bush as well?

          I get the feeling that Bush himself is never out of the woods–not in the USA….Am I missing something?

        • NMvoiceofreason says:

          Mora’s rebellion started when he first heard of the abuse at Guantanamo from NCIS (“The Dark Side”, Jane Mayer, pg. 213-237). His testimony would help establish scienter for Haynes and Rumsfeld in a criminal trial. It was clear they knew what they were doing was wrong, and ruthlessly suppressed dissent. It is also possible that Bataan was tasked to OGA (Other Government Agencies – i.e. CIA) and that Mora would not have been “in the loop” for “Ghost Detainee” ships.

        • thatvisionthing says:

          Totally I thank you. Not only do I now know an unknown, but it’s a fun unknown — I mean the word itself — it’s kinda like conscience, it’s kinda like a humane ghost in the machine, it makes me go wafting away on one of my tangents

        • thatvisionthing says:

          It is also possible that Bataan was tasked to OGA (Other Government Agencies – i.e. CIA) and that Mora would not have been “in the loop” for “Ghost Detainee” ships.

          Maybe Senator Yes?

        • NMvoiceofreason says:

          I am unclear whether you are asking if the Intelligence cmmtte members (gang of four, gang of eight) would have been briefed on the USS Bataan, or if you are asking if Mora would make a good senator. I don’t have any Intelligence (as my wife can attest) or information as to what they knew and when they knew it. It seems that Mora was a good and honorable man in a den of vipers, as JAG officers (or jag offs) often are, so yes, I’d support him for Senator in any district.

        • thatvisionthing says:

          Actually I was thinking about the senator that I didn’t say God bless to in @62, and I was too late to edit in “or maybe President Yes” cf @53 (USS Bataan is one of the US government’s most infamous ‘floating prisons’. Prison ships have been used by the US to hold terror suspects illegally since the days of President Clinton.)… but your latter sounds like a good idea to me

      • NMvoiceofreason says:

        There is a way to lift the gag order. If you could show that it was done for an impermissible purpose, such as to cover up crimes of government officials, then you could have it rescinded. But the crimes of the officials would have to already be established, so it’s kind of a chicken or the egg problem, especially in the singular circumstances of Lindh. When the pattern and practice of the DOD/CIA interrogation is proven in an open court, then both the gag order and the sentence could be revisted.

        • thatvisionthing says:

          If Spain charges Rumsfeld, is that enough? He’d probably have to be convicted, yes? The part I don’t quite get is how Rumsfeld has to get private counsel after Padilla’s suit was dismissed. I mean, the suit’s dismissed, why does he need a lawyer anymore? If a new case comes up, wouldn’t the govt step up again?

        • NMvoiceofreason says:

          Spain’s not going to charge anybody. “US Derails Major Spanish Torture Investigation” The Lebron/Padilla suit was dismissed, which means the next step is the court of appeals, so in reality, the case isn’t over yet. Then after a year or so, it probably goes up to the Supreme Court, where it will have to do battle with Padilla v. Yoo from the Ninth Circuit (if it has been decided by then). US is still paying for the lawyers, they just don’t want them to be DOJ lawyers. The really interesting question is your new case question. How could there be a case, where Rumsfeld and the DOJ have a conflict of interest? DOJ v. Rumsfeld? US v. Rumsfeld? Sounds like they are laying the groundwork for the possibility or future criminal charges, if and when they are forced to do so. In the short term, this was a good time to get out (in between the decision and the appeal).

  15. tjbs says:

    Torture/ Murder/ Treason

    “That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.” Eric Holder quote.

    How does he skip his fiduciary duty to his constitutional duties to protect and defend the Constitution of The United States. How does ” guidance given by the Office of Legal Counsel” supersede the Convention Against Torture for God’s sake????? It must also supersede the Constitution of The United States, right? How is this possible ?

    Now about the 108 homicides of SUSPECTS under enhanced questioning ?

    The three missing thoraxes from camp “no”?

    These fail their own extremely permissive questioning guidelines (?) if they die you’re doing it wrong. 1,2,3,4, ….108,109,110….

    Torture/ Murder/ Treason Do you recognize your country anymore??/

    • Mary says:

      There is no good faith torture exception – unless you have pro-torture Presidents and AGs who won’t prosecute it.

      But really – they have never even prosecuted anyone for the US South American program of targeting planes and somehow “authorizing” our friendly militaries there to shoot them down. From Ashcroft to Holder and everyone in between, no on has given one flying rats ass for the American missionary family whose plane was shot down specifically because the CIA guys involved in the “mission” authorized the shoot down. That poor woman who was killed, with her infant, the young boy and his father almost killed and having to be there in the wreckage with their dead mother and wife and the baby – and no one gave one tinkers damn. DiFi got her knickers in a snit only over the fact that she wasn’t briefed in enough on the killings – I guess she wanted her own set of 8 X 10 glossies.

      And the only reason that one got any attention at all is because the innocents shot down were American – the fact that we’d been operating to authorize all kinds of other planes to be shot down and the passengers killed on no more than gut hunces and whim and that the number of other mistakes would not and could not be known – – got nothing.

      Really – that tells you all you need to know. The CIA can point to a US Missionaries plane in another country and give the military there the ok to shoot it down, resuling in that kind of loss of life, and nothing happens to anyone. No one sends flowers to the graves and an “oops” note. After that – how can you not have a complete out of control entity?

      How can you not have a America taking it’s al-Libi torture victim, whose torture created thousands of deaths and into the millions of refugees, and just casually hand him off to Khadafy to keep or kill?

      With teapartiers, you have open (if often idiotic) conflict that in some ways isn’t that bad for the country to face up to and deal with – but with the like of DiFi and Obama, you have the secret, slimey, oozey evil that rots everything from within. After watching them both, I really don’t worry about the teapartiers as much as I do about people like Obama and DiFi.

      You (or at least I) really want to admire people who do things like work for the CIA or work for the FBI or DOJ – you want to think of them as doing the right thing, even though it puts them at risk, to make the world better. Instead what’s been proven is that they will put EVERYTHING at risk, including national stability and the lives of unlucky American children in the wrong place, to cover for their own acts of criminal depravity – – and if it sinks our own justice system, economy and sense of nation – so be it. That doesn’t mean a thing to them, next to the thrill of literally getting by with murder.

  16. bobschacht says:

    …the Obama administration apparently concluded “its duty to represent the defendants zealously, which includes the duty to argue any and all defenses, can’t be discharged for reasons of policy and other government interests.”

    Hmmm. I wonder what other cases that reasoning might apply to??? e.g., some of the cases against “more than a dozen Bush-era Pentagon and administration officials – including former Defense Secretary Donald Rumsfeld and aide Paul Wolfowitz…”???

    Has Obama finally decided that spitting in the face of his base is not real good politics?

    Bob in AZ

    • NMvoiceofreason says:

      No. He has decided that he can’t represent them and prosecute them too. When he gets forced to do so, I mean.

      • bobschacht says:

        So, is one reason why he doesn’t want to prosecute torturers is that he is also, legally, bound to defend them if they’re still working for the government?

        Bob in AZ

        • NMvoiceofreason says:

          Currently, the DOJ mantra is that they defend any suit against current or former government officials until and unless there is a conflict of interest in doing so.

        • bobschacht says:

          I get that part. What I was asking if that part means that they don’t want to prosecute some of these people because it would lead to these very kinds of conflicts of interest. Yes?

          Bob in AZ

  17. Gitcheegumee says:

    TVT, you have made my day with the Brandeis dissent excerpt. Bravo!

    It has been a privilege to read the exchanges between you and NMvor.

    I am far better informed than when I got up this A.M.,thanks to all the intelligent and enlightened commentary on this thread.

    • thatvisionthing says:

      Oh, thank you. I love that dissent. It’s one of the things that pisses me off about Obama, that when he loses/caves, he doesn’t use the opportunity for a good dissent so we know what the issue is and who chose what. Rortybomb wrote a good post about it:

      Bad at Losing

      I expected Obama to be a better loser, specifically to be better at losing. There were a lot of items on the table, a lot of them weren’t going to happen, but it was important for the new future of liberalism that the Obama team lost them well. And that hasn’t happened.

      By losing well, I mean losing in a way that builds a coalition, demonstrates to your allies that you are serious, takes a pound of flesh from your opponents and leaves them with the blame, and convinces those on the fence that it is an important issue for which you have the answers. Lose for the long run; lose in a way that leaves liberal institutions and infrastructure stronger, able to be deployed again at a later date.

      No dissents, just disappointments. I will say that he is a phenomenal disappointer.

  18. alabama says:

    Rich thread. I want to go back to the top.

    If I am an “court-officer” (any judge, lawyer, policeman of any court, any jurisdiction); if I merely threaten a given suspect (detainee, indictee), with an act of punishment specifically described by the penal code and reserved (as a sentence) for the court itself to pronounce in consequence of a verdict; if I (an official of the system) pronounce this threat on my own, quite apart from the processes entailed by the particular code, and promise to carry it out as a result of a verdict (my own: “I know you’re guilty and I’m going to kill you”), then I’m doing a singular thing: I’m not just “taking the law into my own hands,” I am, as an officer of the law, taking the law out of the hands of the law, and in the name of the law. I am robbing the law of the law, the tools of my theft (“trial”, “verdict”, “sentence”, “execution”, all enacted in the torture cell), being those reserved for me and my fellow “court-officers” within the prescriptions of the code.

    This happens all the time, and everywhere, of course, but when does it ever find itself being brought as a complaint, as an action, by the court itself, before the court itself, with the court having to repossess itself of its own jurisdiction through its own legal proceeding?

    I’m not a lawyer, and none of this may pertain, but if it does, then Rummy has to be tried, no matter how little the authorities wish to try him. He has to be brought to account, because he has put all of “justice” “out of business” in this case–DOJ included–and if DOJ can go out of business here, when could it ever really claim to be in business?

  19. NMvoiceofreason says:

    In most cases, the statutes themselves strip out the ability of courts to hear such claims. In the Convention Against Torture, the end of Article 1 says “It does not include pain or suffering arising only from, inherent in or incidental
    to lawful sanctions.” Threats of death are clearly torture, by international law AND in US law (18 USC 2340A). The difference between the two is, “I’m going to prosecute you, and we’re going to put a needle in your arm” is completely legal, while “I know you’re guilty and I’m going to kill you” isn’t, without some more background to establish they are talking about lawful processes. Prosecutors and interrogators can threaten you with the legal results of what you are charged with – even if those are trumped-up charges. They can’t threaten you wife, or kids, or mother (as was famously done to Abu Zubaydah).

    I agree that the conspiracy started at the DOJ to commit torture has defiled, disgraced, and destroyed the rule of law. Until and unless DOJ and the Torture 13 pay the price, we will not have gotten the rule of law back. But that day IS coming. The (empty)Wheels of justice turn slow, but they grind exceedingly fine. Rumsfeld is about to get ground up by them. Bush can no longer travel. Lawyers are being stripped from them. The shunning has begun.

    • alabama says:

      Thanks for this!

      I infer that Rummy and some others failed to provide the background establishing that they were talking about legal process….

      I like to believe that there have always been, within every branch of the executive, law-abiding citizens who fight back, and fight well. In the worst of times. As with the long, slow, unwinding of the Plame affair, a work of art accomplished by bureaucrats working under the radar, in concert, over a period of years. They outwitted the lawless, something we learn to admire (and dream about) by reading Hamlet. It certainly does take time: “the readiness is all”.

      Bush tells us that he’s left politics. He’s like an SS officer retiring to a ranch in Paraguay.