DDay already noted Peter Diamond’s op-ed withdrawing his nomination as a Fed Governor. But I wanted to emphasize one thing:

It is time for me to withdraw, as I plan to inform the White House.

It appears that this very public complaint was how Diamond informed the White House he was withdrawing–not a discrete phone call.

That’s not the normal way nominees handle communications with the White House.

To be fair, Diamond focuses all of his criticism in the op-ed on the Republicans who believe a Nobel prize winner is unqualified to serve on the Fed. The op-ed itself does not criticize the White House’s handing of the nomination.

But if it’s true that this was Diamond’s way of informing the White House, then it suggests he’s pretty damned pissed at the White House as well. As well he should be–he got the same treatment Dawn Johnsen and Goodwin Liu did, with repeated renominations but no public fight (or recess appointment).

That club of good nominees hung out to dry by this White House is growing longer.

As fatster noted, Judge Kenneth Marra has allowed the suit against Chiquita for its support of Colombian terrorists to go forward. But the ruling is fascinating, because it holds that the plaintiffs can sue for Chiquita’s involvement in torture, but not for its involvement in terrorism.

Relying in part on a 1984 Robert Bork opinion finding there was ““international law and the rules of warfare as they now exist are inadequate to cope with this new mode of conflict,” Marra ruled the Alien Tort Statute doesn’t apply to terrorism. (Note, Marra also cited more recent District Court rulings on this issue.)

So in spite of our decade-long war against terrorism, it appears corporations can support terrorism in other countries and not be held liable.

But unlike terrorism, torture, extra-judicial killing, and crimes against humanity are widely recognized under international law to qualify for the ATS, so plaintiffs can sue for Chiquita’s involvement in it.

Marra also rejected Chiquita’s claim that it could not be held liable under the Torture Victims Protection Act.

Chiquita first argues that the “‘plain reading of the TVPA strongly suggests that it only covers human beings, and not corporations.’” First Mot. at 68 (DE 93) (quoting Exxon Mobil, 393 F. Supp. 2d at 28). This limitation to individuals, Chiquita contends, bars Plaintiffs’ TVPA claims against it, a corporation. Recent Eleventh Circuit precedents, however, hold that “‘an individual’ to whom liability may attach under the TVPA also includes a corporate defendant.” Sinaltrainal, 578 F.3d at 1264 n.13; see also Romero, 552 F.3d at 1315 (“Under the law of this

Circuit, the Torture Act allows suits against corporate defendants.”). Thus, under the precedent of this Circuit, the Court rejects Chiquita’s first basis for dismissal.

Particularly gratifying, a key part of Chiquita’s liability was its intent to support AUC’s violence. Marra notes, for example, that plaintiffs had shown Chiquita supported AUC in part to quell labor unrest.

The AUC’s agreement with Chiquita involved forcing people to work using threats and illegal violence, as well as the quelling of labor and social unrest through the systematic terrorization of the population of Uraba.

[snip]

The complaints here contain sufficient “‘factual content that allows the court to draw the reasonable inference’” that Chiquita assisted the AUC with the intent that the AUC commit torture and killing in the banana-growing regions.

So in American courts, corporations like Jeppesen helping the US commit torture won’t be held liable for torture. But corporations like Chiquita helping terrorists and other governments torture may well be held liable!

WSJ reveals that some folks within the Obama Administration have finally started to weigh the possibility that our drone strikes in Pakistan do more harm than good. Unfortunately, in the fight over whether the US should rein drone strikes in, those folks appear to have lost the debate … for now.

The White House National Security Council debated a slowdown in drone strikes in a meeting on Thursday, a U.S. official said. At the meeting, CIA Director Leon Panetta made the case for maintaining the current program, the official said, arguing that it remains the U.S.’s best weapon against al Qaeda and its allies.

The result of the meeting—the first high-level debate within the Obama administration over how aggressively to pursue the CIA’s targeted-killing program—was a decision to continue the program as is for now, the U.S. official said.

[snip]

Yet an increasingly prominent group of State Department and military officials now argue behind closed doors that the intense pace of the strikes aggravates an already troubled alliance with Pakistan and, ultimately, risks destabilizing the nuclear-armed country, said current and former officials familiar with the discussions.

What’s fascinating about the article, though, is that for all the discussion of the political problems the drones are causing, there’s no discussion of how drones have served to radicalize potential terrorists.

These diplomats and officials say the deep vein of anti-Americanism that runs through Pakistani society forces its elected and military leaders, including army chief Gen. Ashfaq Parvez Kayani, to distance themselves from Washington to avoid a popular backlash.

“What’s worrying a lot of us is whether we’re turning people who should be our natural allies into our adversaries,” said a U.S. diplomat in Pakistan.

That is, this debate appears to still be focusing on whether drones make key Pakistani elites separate themselves from us. There’s not one mention, however, of people like Faisal Shahzad–the Times Square bomber–who blame drones for their turn to terrorism.

I had been predicting for weeks before Obama went to Poland that the Poles would move to quash their investigation into the black site at which KSM and others were tortured.

And sure enough, that appears to be what happened.

The first move actually happened before Obama arrived in Poland: three days before Obama got there, the AP reported that one of the two prosecutors in the investigation, Jerzy Mierzewski, had been sacked.

On Wednesday, it became clear why Mierzewski had been sacked: because he was preparing charges against the politicians who had partnered with the CIA.

Polish state prosecutors are considering bringing charges against members of the Democratic Left Alliance (SLD) for their alleged involvement in secret CIA prisons located on Polish soil between 2002-2005. The prisons were allegedly used to torture terrorist suspects from al-Qaeda.

Officials from the leftist SLD government in power at the time, including former Prime Minister Leszek Miller, may be charged with violating Poland’s constitution, helping to illegally imprison a number of people and with participating in crimes against humanity.

That’s according to documents released by daily Gazeta Wyborcza, which show that former deputy prosecutor Jerzy Mierzewski, who was recently removed from the investigation, wanted to press these charges.

And now AP reports that Poland is responding in the same way the US would: to declare state secrets and pursue the whistleblowers.

Adam Borzyszkowski, a prosecutor in Gdansk, said his office would question the reporter and editors at the newspaper due to “state secrets being leaked” from the main investigation. He said those steps come amid an ongoing 10-month investigation into other media reports that leaked sensitive information.

Back when I was reading lots of samizdat in grad school, it was clear the US genuinely served as a model for Eastern European activists (whether or not we should have been a model is another question).

I guess we still serve as such a model. Only rather than serving as a model of democracy and creativity, we’re now showing others how to use state secrets to hide torture and other crimes.

Former Gitmo prosecutor Morris Davis makes, in really powerful fashion, a point I’ve been contemplating: how does Hillary Clinton get off criticizing the torture of Syrian teenager Hamza Ali al-Khateeb or Pakistani journalist Syed Saleem Shahzad when we have done nothing to hold those who tortured Mohammed al-Qahtani accountable? (h/t Michelle Shephard)

In the fall of 2005, when I was chief prosecutor for the military commissions at Guantanamo Bay, Cuba, I sat down for a lengthy discussion with a veteran member of the prosecution team, a Marine Corps officer with an extensive background in criminal prosecution. We discussed a case that caused him concern, one he said he was not comfortable prosecuting. After describing some of the specifics of the detainee’s treatment at Guantanamo, which was documented in official records, the prosecutor said: “Sir, they fucked with him and they fucked with him until now he’s as crazy as a shit-house rat.” In an interview with Bob Woodward published in the Washington Post in January 2009, Susan Crawford, the Bush administration official who supervised the military commissions, explained why she refused to send the same case to trial when it reached her desk in the spring of 2008. “We tortured Qahtani,” she said, “His treatment met the legal definition of torture.”

The alleged torture of Hamza Ali al-Khateeb, Syed Saleem Shahzad, and Mohammed al Qahtani by government agents that signed the Convention Against Torture begs the question, is a law that is ignored worth the paper it is written on?

If we want to criticize others for their crimes, Davis argues, then we need to practice what we preach.

Who decides which obligations are truly obligatory and which means go too far to ever justify the ends? Chemical weapons may have been a fast and convenient way to defeat the Taliban and al Qaeda in the rugged Tora Bora region in late 2001 and may have killed Bin Laden a decade earlier, but is effectiveness, or that it might work, or that others do it justification to violate the Chemical Weapons Convention prohibitions and commit a war crime? If the standard is the United States decides ad hoc which commitments it will honor and which it will not then it should be honest and repudiate those it considers non-binding and the sense to stop the hypocritical criticism of others that fail to live up to its “do as we say, not as we do” example. On the other hand, if the United States means what it says about the rule of law, it has to demonstrate that it practices what it purports to preach.

And he ends by calling on decent people to reclaim our national moral compass.

Do decent human beings have the temerity to stand up and insist the law be enforced? Does the United States have the integrity to lead by example, or has the government engaging in torture become as accepted as government official lying when the truth is inconvenient? We need to find our moral compass.

Go read it.

A number of people have commented on the Obama Administration’s statement of opposition to a ban on Department of Homeland Security funding for Gitmo detainee transfers. Here’s Benjamin Wittes:

The administration just issued a Statement of Administration Policy on a DHS appropriations bill (H.R. 2017), which contains a spending restriction similar to one of the Guantanamo transfer restrictions that provoked the administration’s recent veto threat with respect to the McKeon legislation. Yet oddly, this time, there is no veto threat.

[snip]

I can think of two possible explanations beyond mere clerical error: First, and I certainly hope this is not the explanation, perhaps the administration is backing off the veto threat. Second, perhaps the transfer restrictions with respect to domestic civilian trials are only veto-worth in combination with the other (from the administration’s point of view) objectionable features of the McKeon bill but are on their own merely worthy of opposition.

In any event, it’s a little puzzling.

And here’s Josh Gerstein:

The view that Obama suddenlty toughening his line against Congressional efforts to constrain his authority to prosecute and move detainees gathered steam just last week when the administration threatened a veto of the Department of Defense Authorization bill over detainee-related provisions including one that appears to prevent any war-on-terror detainee placed in U.S. military custody from ever being transferred to the U.S.

However, the details of what precise measures or combination of measures would trigger a veto from Obama was unclear in the statement on the latest DoD bill, perhaps deliberately so. The official administration statement on the Homeland Security bill appears to indicate that a simple re-upping of the restrictions Obama signed with some complaints in December won’t be enough by itself to get a bill vetoed.

Now, I frankly agree with Josh that the Defense Authorization was designed, in part, for maximum ambiguity about what might draw a veto.

But I think there’s an even easier two-part explanation for not issuing a veto threat here.

This is the Department of Homeland Security appropriation. DHS doesn’t exactly have primary jurisdiction over detainee affairs. And all this does is reaffirm the status quo (albeit without time limits).

Now, as Daphne Eviatar has pointed out to me via email, the language purports to apply to the DHS appropriation as well as any other act.

SEC. 537

None of the funds appropriated or otherwise made available in this or any other Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions, including detaining, accepting custody of, or extending immigration benefits to, Khalid Sheikh Mohammed or any other detainee who—

(1) is not a United States citizen or a member of the Armed Forces of the United States; and

(2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense. [my emphasis]

So I suppose Congress could argue that this language governs all appropriations bills, including DOD and DOJ appropriations that would actually come into play in detainee affairs. And if so, it would eliminate one of the loopholes the ACLU pointed out in the language in the Defense Authorization for this year, which Obama already signed, which only prohibited the use of DOD funds, but not DOJ funds.

SEC. 1032. PROHIBITION ON THE USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

None of the funds authorized to be appropriated by this Act for fiscal year 2011 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who—

(1) is not a United States citizen or a member of the Armed Forces of the United States; and

(2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

Yet Obama’s opposition to this amendment seems like a repeat of the status quo that already exists, with the White House complaining but not vetoing the restriction.

Note, too, that unless I’m missing one of these “Statements of Administration Policy,” Obama’s official opposition to this year’s transfer authority was limited to transfers to other countries, though Holder made repeated comments about the US transfer bans being unconstitutional during the debate itself.

Restrictions on Guantanamo Detainee Transfers: The Administration strongly objects to Section 1044, which prohibits the use of Department of Defense funds to transfer individuals held at the detention facilities at Guantanamo to the countries of Afghanistan, Pakistan, Saudi Arabia, Somalia and Yemen for one year following enactment of this bill. Individual detainee transfer determinations should be made on a case-by-case basis, taking into account all factors, including the threat posed by the particular detainee, U.S. legal obligations and broader U.S. national security interests. This provision restricts the United States’ ability to make these case-by-case decisions for over seventy percent of the detainees being held at Guantanamo. By precluding transfers to these countries, section 1044 poses serious national security concerns, including by reducing the Executive Branch’s ability to negotiate transfer conditions that promote national security.

Finally, note the language of Obama’s non-signing signing statement on the Defense Authorization from January.

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

So in January, Obama basically said, “This is unconstitutional so don’t make it any worse or I’ll get cross,” and this amendment, which effectively sustains the status quo but doesn’t make it worse, gets pretty much the same response from the Administration.

But the defense bill did make detainee restrictions worse–far worse. Particularly given Holder’s lead position on past opposition, I wonder whether Section 1042, which requires the Attorney General to ask permission from the Defense Secretary and Director of National Intelligence before prosecuting a terrorist in civilian courts, wasn’t the final straw.

IN GENERAL.—Before any officer or employee of the Department of Justice institutes any prosecution of an alien in a United States district court for a terrorist offense, the Attorney General, Deputy Attorney General, or Assistant Attorney General for the Criminal Division, shall consult with the Director of National Intelligence and the Secretary of Defense about—

(1) whether the prosecution should take place in a United States district court or before a military commission under chapter 47A of title 10, United States Code; and

(2) whether the individual should be transferred into military custody for purposes of intelligence interviews.

One last point.

I noted this was the DHS appropriation. That’s also significant because amendments are treated differently than they are on Defense Appropriations, as does the fearmongering that can be mobilized when the Defense bill is at risk of failing. A veto threat on a defense bill is just a far more powerful threat than it is on a DHS bill. So while I’m skeptical that Obama is really drawing a line in the sand, if he is, it’s a far more useful place to draw it than on the DHS bill.

I was going to write about this story–about a confrontation between Henry Waxman and Barack Obama over the latter’s ineffective negotiating strategy–yesterday.

The president has heard the complaint before. Democrats have accused Obama repeatedly of ceding too much ground to the GOP, especially on health care and the extension of the Bush-era tax cuts for the wealthy. But attendees said the critique appeared to rub him the wrong way on Thursday.

“He was a little testy with the Waxman question. Essentially, Mr. Waxman was urging him to fight more,” one legislator said. “The president reminded folks that he’s the president sitting in that chair and he knows how to negotiate.”

Obama also told the assembled Democrats not to count on more fiery rhetoric from the Oval Office.

“He said, ‘There’s a difference between me and a member of Congress,’” another lawmaker said, paraphrasing the president as saying: “When I say something the markets react, all of society reacts, other countries react. I’ve got to be careful with what I say. I can’t just say it for brinkmanship. I’ve got to say it in a way so that I get what I want said, but I don’t upset markets and so on.”

But I’m sort of glad I waited until after today’s announcement that unemployment has gone up and declining public sector employment is dragging down the economy. Because it makes it all the more appropriate to highlight Obama’s claim that he has a plan.

But Obama responded that he has to be more careful and more considered than that, and that he is executing an existing plan. [my emphasis]

Not only does the crummy economic news weaken what had been a position of relative strength for the President, but it shows that if he’s got a plan, it’s either not working or not designed to work. Obama’s plan–to focus on the deficit–only makes it more likely we’ll see ongoing cuts to public employment.

Is that really the plan, Mr. President?

This document, Judge Richard Bennett’s rulings on the admissibility of a number of documents presented in CIPA hearings, is interesting for several reasons, some of which I may return to. But I wanted to highlight that the government is trying to introduce evidence under a silent witness rule, something I hadn’t seen mentioned before. [Update: Josh Gerstein covered this back in March. I stand corrected.]

In his ruling on item 14, Volume I, Exhibit 11, Bennett writes,

A ruling on the relevance and admissibility of Classified Statements 1 and 2 should be deferred until the Court rules on the government’s request to invoke the silent witness rule. The government agrees that these written statements of its expert witness will be inadmissible if the Court does not invoke the silent witness rule. The defense objects to the use of the silence [sic] witness rule and the introduction of these statements. The parties’ arguments relating to these documents are reserved.

In other words, the government has requested, but Bennett is still considering, the use of the silent witness rule for some evidence in this case.

As Steven Aftergood explained back in 2007 when the government won approval for it in the AIPAC leak case, the silent witness rule basically allows the government to present evidence to the jury that the public won’t see.

Last week, Judge Ellis approved limited use at trial of the so-called “silent witness rule,” an unconventional tactic that permits prosecutors to withhold evidence from the public and to disclose it only to the parties, the witnesses and the jury. Because this amounts to closing the trial, it runs the risk of infringing on constitutional guarantees that trials will be public.

The silent witness rule “is a novel evidence presentation technique that has received little judicial attention is the context of the use of classified information in trials,” Judge Ellis noted. “No published decision has explicitly approved or endorsed use of the rule in this context.”

This ability to do this–to limit what the public can see at the trial–is a tactic the government uses at Gitmo.

I’m just saying.

It’s impossible to tell what the government is trying to introduce. Elsewhere, references to the government’s expert witness seem always to refer to Catherine Murray, their classification expert, whose review of the charged documents are a central dispute in this trial.

That’s interesting, because in a defense filing submitted yesterday, they made it clear that Drake intends to show that information alleged to be classified in this case was introduced in the public domain, thereby proving that it has not been “closely held.”

Indeed, the evidence shows that the allegedly classified information has been officially released and discussed by numerous agencies and officials of the United States government, including NSA, the Director of National Intelligence, the United States Congress, the Department of Justice, and the White House.

The very end of that filing focuses on the government’s expert (note the reference to a singular expert; the connection between the public domain question and the substitutions at issue here is not entirely clear).

To defend himself against these charges, Mr. Drake must be allowed to cross-examine the government’s expert witness and to test her opinion that the documents in Mr. Drake’s home are classified. He must be able to elicit and present evidence that the documents he possessed did not contain national defense information, that he did not believe they contained national defense information, that he did not specifically intend to violate the law when he brought them home, and that his statements to federal agents in regard to the documents were not false.

Now these two issues–the two statements from a government expert who may or may not be Catherine Murray that the government wants to introduce into evidence without letting the country’s citizens see it, and the defense claim that the government is trying to hide Murray’s statements that relate in some way to information in the public domain–may well be entirely unrelated. As I said, Murray’s review of the documents will be at the center of the trial for many reasons.

But it is worth noting that in addition to all the other novel, expansive claims about the government’s ability to keep stuff–even unclassified stuff–secret  in this case, the government is also trying to add yet another layer of secrecy here.

WSJ has an article reporting on the purportedly Chinese-launched GMail hacks that targeted top White House officials.

The article is interesting not because it claims the Chinese want to hack top officials. Who do you think they’d be most interested in hacking?

Rather, the article is interesting for some of the implications bandied about in the article. For example, Darrell Issa and CREW’s Melanie Sloan suggest the only reason the Chinese would hack the GMail accounts of White House officials is if those people were improperly conducting official business on GMail.

“If all White House officials were following rules prohibiting the use of personal email for official business, there would simply be no sensitive information to find,” said Rep. Darrell Issa, Republican chairman of the House Oversight and Government Reform Committee, and a frequent thorn in the Obama administration’s side. “Unfortunately, we know that not everyone at the White House follows those rules and that creates an unnecessary risk.”

Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, a watchdog group, said the hacking “suggests China believes government officials are using their personal accounts for official business, because I doubt they were looking for their weekend plans or a babysitter’s schedule. Presumably, the Chinese wouldn’t have done this if they weren’t getting something.”

More plausible is the suggestion that the Chinese were phishing for information they could then use to compromise other accounts.

Stewart Baker, a former homeland security official in the Bush administration, said he suspects the ultimate goal of the hacking may have been to use the email accounts as a stepping stone to penetrate the officials’ home computers.

“If you can compromise that machine, you may well be able to access the communications they are having with the office,” said Mr. Baker.

I’m most interested in all the assumptions here, that a bunch of Chinese hackers know precisely how the White House email system works. If that’s true, why haven’t we asked the Chinese to turn over the emails OVP deleted from the first days of the Plame leak investigation? And why haven’t we asked the Chinese to turn over all those emails hidden on the RNC’s server? Maybe they can also help us find all of John Yoo’s torture emails?

Given how common it is, these days, for top officials to just delete their most inconvenient emails, I’m thinking American citizens ought to invite Chinese hackers to help us reclaim all the official records our overlords try to destroy.

Even though he admits yet again that torture didn’t get Khalid Sheikh Mohammed and Abu Furaj al-Libi to reveal the name of Osama bin Laden’s courier, Michael Hayden has launched yet another round of sophism to defend the case that torture led to Osama bin Laden–and if it didn’t it produced a whole lot of information. The only thing that’s novel about this latest effort is the new contortions he goes through to try to avoid admitting that torture didn’t do what it was promised it would do: provide the most critical information quickly.

But it got me thinking.

Michael Hayden was a not-bad CIA Director. Particularly compared to his predecessors George “Slam Dunk” Tenet and Porter Goss and his Gosslings he was reasonably successful.

But he was a pretty big failure as head of the NSA.

There’s all the revelations the government wants to send Thomas Drake to jail for revealing: that Hayden chose to enrich SAIC with $1 billion of pork rather than invest $3 million in house for something that worked far better. That management failures prevented NSA from implementing the security improvements that might have prevented WikiLeaks, not to mention so much of the hacking done by our enemies.

And while I don’t hold it against him, under Hayden’s command, NSA did fail to find the 9/11 terrorists whose calls in the US had been picked up on wiretaps to an al Qaeda safe house. Nor did NSA pick the hijackers up as they were wiring their excess funds back to Dubai from a Giant store close to Ft. Mead.

But Hayden’s real failure, of course–and a near parallel to the torture decision that he says “I thank God that I did not have to make”–was in bowing to Bush and Cheney’s claim to inherent power to set up an illegal wiretap program that not only compromised Americans’ privacy, but didn’t work.

Indeed, the Inspectors General who reviewed Hayden’s illegal wiretap program found it to be about as ineffective as the CIA Inspector General found torture to be.

So why is Hayden wasting his breath boasting about how effective torture was rather than making specious claims that the illegal program implemented under his command nailed OBL?

Mind you, the NSA (or perhaps Pakistani SIGINT) played an absolutely critical role in tracking down the courier that led us to OBL. But no one claims the illegal program provided even a shred of intelligence that helped us find OBL. If anything, our belief in the magic of the illegal program–and SIGINT in general–apparently led counterterrorism types to dismiss the importance of couriers for some years after it should have become clear al Qaeda had taken measures to avoid using the telecom they knew Americans were tracking.

So why is Hayden blowing so much hot air about the value of torture? Would claims that the illegal wiretap program Hayden implemented played a role be even more ridiculous?