Dick Durbin: The Targeted Killing Memo Is Like the Torture and Illegal Wiretap Memos

It took transcribing the debate in the July 19 Senate Judiciary Committee hearing for me to realize it, but Democrats are running very serious interference to keep the Anwar al-Awlaki targeted killing memo secret. Not only did Dianne Feinstein basically roll John Cornyn, telling him she’d introduce language that would accomplish his goal of getting all the oversight committees the memo when, if hers passes, it will only, maybe, get the Intelligence Committee the memo.  Not only did the Democrats vote on a party line vote to table John Cornyn’s amendment to require the Administration to share it–in classified or unclassified form–with the Judiciary and Armed Services Committees. Not only did Pat Leahy get pretty snippy with Cornyn for offering–and asking to speak on–the Amendment.

Most stunning, though, is Dick Durbin’s comment on it.

Durbin: Thank you Mr. Chairman. My staff briefed me of this on the way in, and I asked the basic question, “would I ask this of a Republican President? Of course. And I did ask it, in a different context, of the previous President, when it came to questions of interrogation, torture, and surveillance. I might say to the Senator from Texas I had no support from the other side of the table when I made that request. But I do believe it is a valid inquiry and I would join the Senator from Texas and any who wish in sending a letter to the Attorney General asking for this specific information on a bipartisan basis. And certainly we can raise it the next time the Attorney General appears before us. I do have to say that I’m going to vote to table because I think that as flawed as this [the FAA extension] may be without the Lee Amendment which I think would help it, I do believe we need to pass this and  bringing in these other matters are going to jeopardize it. But I think it is a legitimate question to be asked of Presidents of either party, and I will join you in a letter to this President and his Attorney General for that purpose. [my emphasis]

This partisan retort (one Leahy repeated) says, in part, that the Democrats aren’t going to cooperate with Cornyn’s effort to get the memo because Cornyn didn’t cooperate with Durbin’s efforts to get the torture and illegal wiretap memos. Durbin and Leahy are right: Cornyn and the rest of the Republican party did obstruct their efforts.

That doesn’t make obstructing Cornyn’s effort right, of course, particularly given that Durbin purports to support Cornyn’s intent.

But remember, Republicans obstructed the release of the torture and illegal wiretap memos because, well, they showed the Executive had broken the law. When we all got to see the torture memos, they made it clear CIA had lied to DOJ to get authorization for torture, had exceeded the authorizations given to them, had engaged in previously unimagined amounts of torture, and had ignored legal precedent to justify it all.

And while we’ve only ever seen part of Jack Goldsmith’s illegal wiretap memo (after the Bush Administration purportedly fixed the data mining and other illegal problems with it) and a teeny fragment of an earlier John Yoo memo, those showed that Yoo relied on gutting the Fourth Amendment, there is an additional secret memo on information sharing, they were hiding their flouting of the exclusivity provision, and–possibly–the illegal wiretap program violated an earlier decision from the FISA Court of Review. We also learned, through some Sheldon Whitehouse persistence, that these memos revealed the President had been pixie dusting Executive Orders and claiming the right to interpret the law for the Executive Branch.

The Republicans had good reason to want to help Bush bury these memos, because they showed breathtaking efforts on the part of the Bush Administration to evade the law.

And that’s the fight that Dick Durbin analogized this one to.

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.

13 replies
  1. What Constitution? says:

    I’m actually a lot less concerned with Durbin’s analogy than I am with him articulating that apt analogy and then voting against the rational response and in favor of shielding the conduct out of what he is apparently proud to charcterize as pique. Great way to get nowhere fast, as his vote proves. Durbin in the majority voting against requiring disclosure of what has just got to be a duesy of a purported “justification” for unilateral presidential death sentences.

  2. Strangely Enough says:

    But I think it is a legitimate question to be asked of Presidents of either party, and I will join you in a letter to this President and his Attorney General for that purpose.

    …plus c’est la même chose.

  3. What Constitution? says:

    @Strangely Enough: My Spanish is rusty, so I ran it through Bing Translator, which tells me the italicized phrase means “it is the same thing”. I kind of expected it to translate as “thank you sir may I have another”, but if a US Senator refusing to vote for disclosure is the “same thing” as asking the President and Attorney General nicely to disclose that which they have ignored ten different requests to disclose about conduct on its face barred by the Fifth Amendment and on back to Magna Carta, I guess it is what it is. Except it’s, well, not the same thing. It’s acquiescing under the guise of treating the issue as partisan payback. Adding another letter to the list of ignored requests isn’t much of a compromise, is it? Nor does it realistically get anyone any closer to revelation of truth. True, I’d rather have a chippy “this is important” in there instead of just “I wholeheartedly agree with hiding this” — but where does that leave us? EW’s post is completely correct in pointing out how Durbin challenged the presidential assassination meme as on a footing with executive torture, but Durbin still left the issue in the lurch and I think it’s hard to credit him for that in any way. There was a chance for biparitisanly doing something right about something important; Durbin and the other Dems let it slide and played crass politics with it to boot. Such things happen, of course.

  4. Bob Schacht says:

    Ah, as old timers (can we say that yet?) already know, good things happen when you transcribe government proceedings. Would that Durbin and Cornyn would fashion a bipartisan bill accomplishing a measure of accountability that DiFi apparently does not wish to endorse (in action, if not in words.)

    Whatever happened to “protect and defend the Constitution of the United States”?

    Bob in AZ

  5. D12345 says:

    Sorry state of affairs. Just a note to strangely enough…

    The phrase you were translating is the 2nd half of a French expression…(that’s why the
    dots were there in the front)

    Plus ça change
    Plus c’est la même chose

    And this great phrase means…

    The more things change
    The more they stay the same

    R….D….pick your poison….

  6. Strangely Enough says:

    @What Constitution?: I guess I could have elaborated a bit. It’s the back end of a french phrase that translates: (the more things change,) the more they stay the same. After almost a decade of “sternly worded letters,” I was at a bit of a loss for words regarding Durbin laying it out so clearly in partisan terms.

  7. What Constitution says:

    @Strangely Enough: Alas, I stand exposed as the ‘Murikin illiterate that I am (the only French phrases I know by heart are “L’etat, c’est moi”, “vouslez vous couchez avec moi” and “Je surrender” — all misspelled, no doubt). And now, even more convinced that computers possess little wit, no nuance and less soul and that one cannot trust translation software, I tip my chapeau at your concise distillation of what appears to be the same thought I was struggling to articulate and thank you for explaining what I was missing. I also hereby choose to believe you can read the German, Greek, Latin and Sanskrit bits that Scott Horton posts, too. Many thanks, keep up the very good work!

  8. MadDog says:

    OT – I’m sure EW will have a post about the Ryan pick for Repug VP nominee, but I might as well get started.

    When I heard/read the news at 6 this AM, I literally laughed out loud. Some random thoughts:

    1) Mittens can kiss Florida good-bye.

    2) This isn’t a pick from the Crazy wing of the Repug Party. Oh no! This is from the Extreme wing of the Crazy Party!

    3) Tweets, bumper stickers and “coined phrases” coming to you soon:

    Romney/Ryan will outsource your Social Security to Wall Street!

    Romney/Ryan will outsource your Medicare to Wall Street!

    4) Even for publicly admitted bomb-throwing crazy Repug Newt Gingrich, Paul Ryan’s budget plan was crazy “right-wing social engineering”.

  9. P J Evans says:

    @MadDog:
    I’ve already seen “Bain and Pain 2012”.
    The other one I saw – before this announcement – was
    Obama 2012
    Romney 1040

    The fun part is that Rmoney’s campaign is already trying to distance him from Ryan’s budget plan. (Guys, you should have thought of that before you picked ‘Mr Catfood Budget’.)

  10. Jeff Kaye says:

    Durbin’s statement is interesting, if only because the practices Durbin rightly conjoins concern aspects of state policy that together mark the U.S. for the rogue state that it has become (murdering, torturing, snooping on all citizens).

    But Durbin’s actions drip with the cynicism. If there were any irony in it, it would be the hidden joke that the government’s secret apparatus has a long and horrendous history of covert cover-up, along with a famously inert attitude regarding accountability for such crimes. The list is too long to repeat here in a comment, but major, major crimes that went and still do go unregarded include the decades long cover-up over the existence of a major Japanese Imperial era biological weapons experiments program, which used among others U.S. POWs as guinea pigs, and the wholesale incorporation of the Japanese scientists and doctors into the U.S. BW program.

    Worse, it appears these scientists were included in the experimental run at using such weapons by the U.S. in the Korean War (Operation Takeoff). The cover-up on the latter was also extensive and still operational. Part of that cover-up included the propaganda of charging a “brainwashing” scheme that never was by the Chinese and North Koreans. Instead, the Pentagon and CIA used the research-into-“brainwashing” meme as a cover for interrogation and mind control schemes that began years before the Korean War ever began (Operation Chatter, US Navy).

    I know this is OT, but I’ve recently been reading about this, and along with the Gladio history of NATO’s intervention into Europe’s politics post-WWII, including the use of right-wing terrorist attacks, and the U.S. cozening of the mass assassination and murder campaign in South America that was Operation Condor, the revelations about the U.S. in the Korean War pretty much seals for me the complete criminality of the U.S. government at high levels.

    I did not access the information on the BW material was via some conspiracy website, but in a book by some of the most respected British journalists of the past 30 years: Peter Williams & David Wallace’s 1989 book, Unit 731: The Japanese Army’s Secret of Secrets (out of print, but used copies available). The book has an excellent introduction by another major UK historian, R. John Pritchard (who was in charge of the editing and publishing of the complete Tokyo War WWII War Crimes trials).

    If anyone checks out this book, make sure to get the original British edition, because amazingly, the U.S. Free Press edition is some 60 pages shorter, as the U.S. version omits the chapter about the use of BW in the Korean War! (Reminds me of how one way or another, David Hicks’ book on his experiences at Guantanamo has never been picked up by any U.S. publisher.) — Of course, both U.S. and British editions are out of print, but there have been other books about Unit 731 since. Most of them either are agnostic or mildly curious about links to the Korean War BW charges, or denies the charges of U.S. use of BW.

    The one major exception, and still in print!, is Canadian scholars Stephen Endicott and Edward Hagerman’s The United States and Biological Warfare: Secrets from the Early Cold War and Korea (Indiana University Press), published in 1998. This is an essential book, and along with another scholar’s book, Swiss researcher Daniele Ganser’s NATO’s Secret Armies: Operation Gladio and Terrorism in Western Europe, and Professor J. Patrice McSherry’s Predatory States: Operation Condor and Covert War in Latin America, a true education in the realities of U.S. history post-WWII will be far more complete than the inaccurate and incomplete versions taught in most schools or relayed by even liberal or left-wing journalists. — Thank god for those historians who are dedicated to ferreting out historical truth!

    I know this whole comment is O/T, but when one considers that the U.S. executive branch will not cough up, even for Congressional scrutiny, documents concerning its assassination programs, consider also that the documents surrounding use BW programs from the 1950s are also sealed, i.e., still classified. In some cases, they are missing, or their validity hopelessly compromised (as when the Army Chemical Corps took files on its programs from the National Archives and held them for some years, returning them later, but in what condition, we do not know).

    So Durbin is an arch-ironist, and the realities behind Marcy’s acrid criticism of the Democrats and GOP on this score go deeper and more corrosive than anyone would like to think.

  11. earlofhuntingdon says:

    @Jeff Kaye: I think Wilfred Burchett would have agreed with you wholeheartedly, especially about the use by the US of bio weapons in the Korean War. Disease-laden insects dropped by aerial bomb were apparently among the delivery systems.

    Naturally, Burchett was considered outre (and then some; he was banned for decades from returning to Australia, a position the CIA actively encouraged) for observing it and for other observations that failed to follow government propaganda scripts.

    Earlier, he was considered persona non grata for being the first western journalist to report on the on-the-ground horror of post-bomb Hiroshima. Not surprisingly, despite knowledge to the contrary, the US insisted for some time that there was no such thing as long term radiation poisoning, something that has killed several hundred thousand more Japanese than the original two bomb blasts.

    Had the public been aware of that, it might not have been so tolerant of the several dozen above ground tests in the US and elsewhere, nor would it have been so tolerant about the decades long eagerness among our top military leaders to advocate use of nuclear weapons, including in Cuba and SE Asia. Destroying the village in order to save is not regarded in some circles as a contradiction in terms.

    But it’s the other guys that are state sponsors of terrorism, not the friendly, democratic, free market-oriented, pacific United States.

  12. Mauimom says:

    @What Constitution:

    the only French phrases I know by heart are “L’etat, c’est moi”, “vouslez vous couchez avec moi”

    I always have to laugh when I see someone quote the “voulez vous” phrase. Whoever is using it is asking someone to go to bed with them, but is using the formal [“vous”] rather than the friendly [“tu”] form.

    Strange, n’est pas?

  13. Mauimom says:

    @MadDog:

    My entry in the bumper sticker contest: “Romney/Ryan 2012 — the Death Panel Sarah Warned Us About.”

    I also saw somewhere: Romney/Ryan = Vulture/Voucher.

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