David Ogden

DOJ Investigations into Torture as a Diplomatic Stunt

I’m back into moving hell this week, so I haven’t looked as closely at all the WikiLeak cables that have come out. But I wanted to add one point to David Corn’s story on a cable showing the discussions about a potential Spanish prosecution of our torture lawyers. As Corn describes, the cable chronicles a series of efforts in April 2009–to pressure the Spanish government to quash any prosecution in Spanish courts.

Now, it’s worth noting the timing of the cable: April 17, 2009. That is, the day after the Administration released the torture memos. That is, the big piece of news (aside from the chronology of Republican efforts to quash an investigation)–the Spanish Attorney General Candido Conde Pumpido’s announcement on April 16 that he would not support a criminal complaint–happened almost simultaneously with the release of the memos that would provide a great deal of evidence for a case against John Yoo, who was one of the six being investigated. The cable was probably even sent before–but not by much–Obama released a statement saying,

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

[snip]

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again. [my emphasis]

Which is why I think the most critical passages of this cable (which includes DOJ among its recipients) are these ones:

Meanwhile, the Embassy has been involved in DOJ-led talks to have [Chief Prosecutor Jose] Zaragoza – who attended the April 16 press conference – lead a four-person team of GOS officials to Washington for a possible meeting with U.S. Deputy AG David Ogden or AG Eric Holder during the week of May 18. Zaragoza’s wife, who is Conde Pumpido’s chief of staff, would reportedly be one of the four.

[snip]

Zaragoza has also told us that if a proceeding regarding this matter were underway in the U.S., that would effectively bar proceedings in Spain. We intend to further explore this option with him informally (asking about format, timing, how much information he would need, etc.) while making it clear that the USG has not made a decision to follow this course of action. [my emphasis]

That is, within the larger context of a discussion of past efforts to pressure the Spanish not to investigate, the cable points to the person whom the US could leverage–Zaragoza–and describes the best means to do so. Zaragoza, the cable makes clear, is telling the US that the best way to halt the Spanish investigation would be to show that “a proceeding regarding this matter were underway in the U.S.”

That was on April 17, the day Obama said there would be no prosecutions. It discussed a meeting between Zaragoza and either David Ogden or Eric Holder to take place in May, at which point the OPR investigation was still pending. And then less than a month after the OPR Report concluding (finding that John Yoo was an idiot, but not criminally or unethically so), Eric Holder announced the Durham investigation into torture. The one for which the primary basis expired with no charges recently. But the same one DOJ claims is ongoing. The one that Harold Koh pointed to–in another diplomatic venue–so as to be able to say with a straight face that the US considers waterboarding to be illegal.

Harold Koh, legal adviser at the US State Department, said on the sidelines of a UN Human Rights Council meeting in Geneva that “there has been a turning of the page” under President Barack Obama.

“I think that the Obama administration defines waterboarding as torture as a matter of law under the convention against torture and as part of our legal obligation… it’s not a policy choice,” Koh told journalists after being asked about the report.

Asked whether the United States was still considering investigation or federal prosecution of those who might have ordered such a practice in the past, Koh said the matter was being examined by Special Prosecutor John Durham in Connecticut.

“Those investigations are ongoing. So the question is not whether they would consider it, they’re going on right now,” he explained.

In other words, what this cable shows is the genesis of the plan–on the day after the torture memos were released–to forestall international investigations of US torture by claiming that the US is itself conducting an investigation. It’s a claim that continues to this day.

It’s not a surprise that the Obama Administration has been pointing to its own investigations–credible or not–to persuade the international community not to hold our torturers accountable. But it is useful to see how the diplomats and the lawyers first hatched that plan.

“The President Ultimately Made the Call”

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

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

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

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

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

“I could read you a quote.”

Holder laughed uncomfortably.

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

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

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

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

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

“We all benefited” from Margolis’ tenure

A bunch of former DOJ bigwigs just wrote a seemingly pointless letter to Pat Leahy to assure him that David Margolis does not have a partisan–and they mean Left-Right partisan–bias. (h/t Main Justice)

I say “pointless,” to begin with, because after last Friday’s flaccid hearing on the OPR report, is anyone actually imagining that Pat Leahy is going to make a stink because the OPR Report got spiked?

And besides, no one thinks Margolis is a flaming political partisan. He’s a DOJ partisan, always putting the Department first, even ahead of justice. Hearing from a bunch of former DOJ bigwigs claiming he has no bias isn’t going to allay those concerns.

What’s particularly pathetic about this document, though, is the number people with a vested interest making the following weak claims:

we all benefited during our tenures from the wise counsel and good judgment of David Margolis

[snip]

While we do not comment here on the merits of the decision regarding the discipline of John Y00 and Jay Bybee, we are certain that it was reached conscientiously and wholly without partisan purposes.

[snip]

As those who have benefited from David Margolis’s counsel, we know he remains a great asset to the Department and the country for the present and future.

Let’s start with Alberto Gonzales, who gave approval for the use of torture techniques long before OLC did, and who was therefore perhaps the person most in need of the Get Out of Jail Free card that John Yoo wrote him. He signed this document.

So did George Terwilliger, Alberto Gonzales’ defense attorney, representing him on a number of ethical and potentially criminal issues, and therefore, presumably, on torture, if it ever came to that.

There’s Michael Mukasey, about whom Mary wrote a 2,000 word post describing his many conflicts on this issue. And Mark Filip, who helped Mukasey try to spike this report from the start. And Craig Morford, who was Acting DAG when Mukasey reviewed the Steven Bradbury memos and found them reasonable, which was itself a key part of spiking this investigation.

And how about John Ashcroft, huh? He wants you to know that he’s sure that Margolis judged correctly when Margolis determined that Ashcroft’s subordinates did not willfully do wrong when they shredded the Constitution eight years ago under Ashcroft’s inattentive watch. The same Ashcroft who reportedly pushed for some kind of “advance pardon” for the torturers. I sure trust him to tell me whether Margolis judged rightly or wrongly.

Then there’s Paul McNulty who, as US Attorney for Eastern District of VA, declined to charge people who engaged in torture and murder pursuant to these memos. The same guy whose decision to decline prosecution was reconsidered, given all the damning evidence in the OPR Report. Do you honestly believe that McNulty doesn’t want to have his decisions–which shortly preceded his promotion to be Deputy Attorney General–scrutinized that closely?

There’s Jim Comey, who may be one of those refusing to comment on the merits of the decision here (well then, why comment?), but who, when he lost the battle on the torture memos, expressed sadness “for the Department and the AG.” But not, it should be said, for the rule of law.

Add in Larry Thompson, who is another of the lawyers who, at least according to the OPR Report, reviewed and approved of the Bybee Memos. He thinks Margolis did the right thing too.

And, finally, David Ogden, who got fired not long ago, perhaps because he was happy to put politics above the law.

Now I’ll leave it for comments to unpack why people like lobbyist hack Jamie Gorelick wants to boost Margolis. But for now, just know that when at least 10 of these 17 bigwigs say they benefited from Margolis’ “wise counsel and good judgment,” they may well be talking about personal–and significant–benefit.

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