Why Bush Is So Desperate to Get Bradbury Approved

There has actually been pretty good coverage–even in the traditional press–of Bush’s intransigence over the Bradbury nomination. Here’s the AP, for example.

The nomination of Steven Bradbury for assistant attorney general is especially controversial.

In January, Bush renominated Bradbury, refusing to yield to Democrats who oppose a permanent job for the official who signed legal memos authorizing harsh interrogations for suspected terrorists. Bradbury has been serving as acting chief of the Justice Department’s Office of Legislative Counsel. Bush wants the Senate to confirm Bradbury as permanent head of the office.

Senate Democrats complain that two secret memos from Bradbury in 2005 authorized the CIA to use head slaps, freezing temperatures and waterboarding — a practice that invokes drowning fears — when questioning terrorism detainees.

And even better is this article from the LAT

Perhaps the most contentious nomination is that of Steven G. Bradbury as an assistant attorney general in charge of the Office of Legal Counsel, which advises the administration on major legal questions.

His nomination has been pending for two years. Democrats have balked at approving him, citing the legal justification that he provided to administration officials who defended the National Security Agency’s use of warrantless electronic surveillance after the Sept. 11 attacks.

Objecting to Bush’s repeated insistence on placing Bradbury in the sensitive position, the Senate has refused to act on dozens of other nominations, including that of U.S. District Judge Mark Filip of Chicago as deputy attorney general, the Justice Department’s No. 2 post.

And the Politico

While there are scores of pending appointments, much of the acrimony can be traced back to Steven Bradbury, nominated to the post of assistant attorney general, office of legal counsel.

Despite the banal title, the office issues legal opinions which are binding on the executive branch. While serving in the position as acting assistant attorney general, Bradbury signed memorandums authorizing the use of harsh CIA interrogation techniques, which Democrats have characterized as torture.

In December, Reid offered to confirm 84 stalled administration nominees in exchange for the withdrawal of Bradbury’s nomination, but the White House declined, according to Reid.

In spite of Bush’s little breakfast theater yesterday, everyone seems to get that this argument is about Steven Bradbury, and only secondarily about Bush’s neanderthal choices for a number of his other nominations. 

But no one seems to get the reason why Bush has forced this stand-off with the Senate. As I pointed out several weeks ago, the re-appointment of Bradbury–whether or not he is confirmed–serves as a control on Mukasey from now until the end of Bush’s Adminstration.

…the re-appointment guarantees that Bradbury can continue to act as OLC head through the end of Bush’s term. It ensures that Dick and Addington have their stool (in both senses of the word, I suspect) in the heart of DOJ, preventing any real roll-back of Dick’s Constitutional atrocities.

No matter what Mukasey’s intentions, it seems, Bush and Dick now have their insurance that Mukasey can only do so much to fix this Administration’s shredding of the Constitution.

More importantly, as yesterday’s HJC hearing proves, having Bradbury in OLC authorizing whatever atrocities BushCo dream up gives them immunity from federal prosecution for those atrocities; Attorney General Mukasey has made it clear that he will not investigate or prosecute anything that has OLC sanction. (And read Marty Lederman for why Mukasey’s stance, though logically atrocious, is legally justifiable.) The very best we can wish for, from Mukasey, is that he won’t sign off on any more Pixie Dust and Waterboarding opinions (though that assumes that Addington and Bradbury will show him the opinions, which may not be a safe assumption). 

George Bush would forgo all his other 84 appointments because he wants to remain safe from prosecution and probably would like the insurance of immunity for any of his actions going forward. Democrats need to make this clear–Bradbury is about more than a personnel dispute, it’s about whether the President is above the law. 

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185 replies
  1. looseheadprop says:

    George Bush would forgo all his other 84 appointments because he wants to remain safe from prosecution and probably would like the insurance of immunity for any of his actions going forward. Democrats need to make this clear–Bradbury is about more than a personnel dispute, it’s about whether the President is above the law.

    There’s your money quote

    • AZ Matt says:

      It seems that his objections have to be on moral grounds rather than legal since DOJ gave the CIA “legal” cover. Marty doesn’t like it that is obvious.

  2. Jeff says:

    Is your argument that Bush wants specifically Bradbury so that he will sign off on whatever arguments Bush needs from now until the end of his administration, or so that there is no risk that opinions already in place will be withdrawn, a la Goldsmith reviewing a small stack of existing OLC’s opinions and withdrawing some unspecified number (but at least three) of them?

    • bmaz says:

      Yeah, I think that is basically it. Bradbury is already on the hook with these piles of tortured legal logic (pun not intended, but convenient); someone new at the head of the office would be forced to review them and put their mealticket on the line.

      I will go read Lederman; but if it is like his prior comments in this area, I think he is still a bit of a “homer” for the department he used to work in and I disagree rather strongly with him. I, however, don’t have the experience there that he does, so I am not sure my opinion is worth much…. I will take a look at the new link though.

    • emptywheel says:

      Both, to some degree. Mukasey has reviewed the decisions for all active programs–at least as it relates to torture. So Bradbury has nothing “Active” Mukasey can’t live with. Now, I hope (but after yesterday, it’s just a hope) that Mukasey would prevent Bradbury from signing off on anything new. But he’s in a much stronger position to do so while Bradbury is acting, rather than Senate approved or recess-appointed.

      In fact, I think the Dems OUGHT to be yelling that the two opinions on contempt, one written by Bradbury when he was in violation of the VRA, and one written by Clement when he was both in charge of the investigation AND preparing to defend the WH on it (to say nothing of the fact that it was such a bad decision I can poke holes in it).

      That said, Mukasey has almost certainly deliberately avoided reading opinions like the Pixie Dust opinion, that is, by all appearances, still being used to invent fourth branches and what not. But I think Mukasey will allow what’s there to stand, even though a lot of the older stuff (including Bradbury’s 2005 torture memo) is atrocious.

  3. GeorgeSimian says:

    Is there any chance that the next president is going to go after Bush and prosecute? Or are they just going to move on?

    • looseheadprop says:

      Is there any chance that the next president is going to go after Bush and prosecute

      Politcaly I woud be suprised if Hillary did b/c is would be spun as payback.

      Obam could, but he has already signalled that he has no interst and is all about the kubaya.

      So, I’m bummed

  4. SaltinWound says:

    Wheel, my site (saltinwound.com) isn’t usually political, but I linked to you today in a little piece I did about Mukasey. Okay, fine, it’s a f*cking valentine to you, but here’s my question: was his comment about “tastes and preferences” (re: waterboarding) a quote or a paraphrase? I haven’t seen that quote anywhere yet, but it may be just because people are so jaded it doesn’t seem remarkable.

    • JTMinIA says:

      Oh, that part. Sure. Butm as I think he was quite clear, his (and my) moral disagreements don’t make Mukasey’s argument any less logical.

      The real problem is having an OLC in the first place. To place what is, effectively, a judge inside the Executive Branch is dangerous. If said judge remains impatial or consistently seeks the advice of real judges, then I guess it’s OK, as it has been for a long time. But as soon as the OLC is politicized, it’s a real danger.

      That, to me, is the reign of Bush II in a nutshell, by the way.

      • Redshift says:

        Yes, so many of the appalling actions of the Bush Administration are things that are not prohibited because our system of government presumes a certain amount of good faith on the part of those elected to run it, and they have none.

        • jayackroyd says:

          “good faith in running government”

          That’s exactly right. The flip side of this is the land mines that digby has been talking about lately. For an incoming democratic administration to deal with political appointments that have been made at the civil service level, to reverse policies that have been made in contravention of the law, and to otherwise deal the systematic bad faith they’ve followed in running government is going to lead to claims of politicization and bad faith. Not to mention how hard it will be to undo the outsourcing of everything from Marines guarding state department officials to approving medical reimbursments for the elderly. Not to mention contracting out operational positions at agencies from State to the EPA.

          The overall strategy of making reality a political question, of the very reading of unambiguous text, as with McConnell’s reading of Feingold’s amendments is embedded in this. The idea is to make the nation ungovernable.

          In a deep way, I don’t understand this. They can only loot the treasury so many times before there isn’t anything left to loot. And making the country ungovernable is not looking such a good electoral strategy, either. I know the plan is to blame the Democrats in 2012, and that these landmines are designed to do that, but it’s not clear to me that they will either be able to get elected, or have enough time to replenish the treasury.

          • JohnForde says:

            This is why a very public trial of ‘waterboarding george’ is so important. We need to vivid convict the leadership to make a cleansing of the bureaucracy possible. And it should be easy. Those tapes are still out there. Those emails are out there. I pray that Hillary of Barack will let the justice dept. investigate and prosecutions and punishments run their course. But I fear they lack the guts.

            I am more confident that the international community will make it impossible for ‘waterboarding george’ to travel abroad starting about 2010. How will the TV pundits spin that?

            I am really in a taunting mood. Shall we inundate the Republican national committee with coupons for free plane tickets to The Hague?

            • bmaz says:

              This is why a very public trial of ‘waterboarding george’ is so important.

              Boy howdy. Just think of how little of a watershed moment Watergate would be if the Nixon Administration had been able to circumvent and scare off Sam Ervin’s committee, SCOTUS was the Roberts Court instead of the residual Earl Warren Court under principled conservative Warren Burger, and Nixon had not have had to resign. Well, the dark forces of Cheney et.al. learned the lessons and have engineered all those stop gaps out and this is where we are now. Right and wrong straddles a surprisingly thin line when you get down to it.

              Selise @105 – “i haven’t forgotten how the house leadership blocked holt’s decent fisa bill”. Unfortunately, I don’t think Pelosi and Hoyer have forgotten being inconvenienced by the progressives back then and, in conjunction with the minority leadership and the Senate cave in specialists, probably have this waxed out to where it is done and over. I hope I am wrong. this latest push by the progressives, plus the fact that they have another extension ready, give me a little hope; but not much. I sure don’t understand the procedural niceties as well as cboldt, but I get the impression his reading of the structure on this being a done deal is spot on.

              Jay Ackroyd @106 – That has always perplexed me as well. All the stinking big business and military and everything else these pukes rely on to skim and plunder depends on a sound and vital infrastructure and an educated and socially mobile society. There are only so many taxes you can cut, only so many people you can screw before you are screwing yourself; and yet, there is no end of this to these folks. It really doesn’t make sense in the long term.

  5. merkwurdiglieber says:

    The performance Mukasey gave this week should convince anyone that he
    is under control and on script. That has been the Bush method all along,
    so it seems a sound supposition that Bradbury is integral considering
    the price paid for his quasi-legal holding of the OLC position.

  6. Redshift says:

    The question for Reid and others is, why isn’t Bradbury being impeached? Even if it’s legally defensible, it seems like he is single-handedly blocking the clear intent of the law. Torture seems to be one question on which they might actually get enough Republicans on board to remove him.

  7. JTMinIA says:

    The only place where I think Mukasey said something that doesn’t fit with Lederman’s analysis is here (taken from the LATimes piece): when explaining why the DoJ can’t investigate the CIA for waterboarding in 2002 and 2003, because the OLC has already opined it was legal, he said, “that would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice.”

    The mistake, as it were, in this is the use of the word “authorize.” When you go to a lawyer to get legal advice and the lawyer says, “go ahead; it’s legal,” the lawyer did not just authorize your behavior. “Authorization” implies having the power to decided whether you can do something. And it’s not Lederman’s argument that the OLC has that power. Rather, the Lederman version of Mukasey is that the OLC offers opinions that are binding on the entire DoJ.

    • emptywheel says:

      Actually, I think Mukasey’s argument, while substantively the same as Lederman’s, opens up the next step.

      If DOJ can’t investigate clearly illegal activities, then Congress has to do it. Mukasey’s argument is, oddly, not quite as strong as Lederman’s in that Lederman’s takes the govt as one unit, and says the govt opinion is binding. But it’s not.

      • bmaz says:

        Yeah, and as I indicated the other day, at this point, and for this type of case, it is really insufficient even to have a “special counsel” because such an office still operates somewhat under the auspices of the DOJ. Without a true independent counsel law, which we no longer have, Congress is really the only option. Of course, this presupposes they will not be completely derelict in their duties and oath of office; which clearly is too much to ask of the current Congress.

  8. looseheadprop says:

    Lederman version of Mukasey is that the OLC offers opinions that are binding on the entire DoJ.

    Which is logical. OLC IS DOJ. Do DOJ would be contradicting itself. that’s why the Goldsmith withdrawal of the Yoo opinion was such a big deal.

    • JTMinIA says:

      Exactly. That why I found Lederman’s piece convincing.

      All you need is a smidgeon of doubt on a legal question. Even when it seems obvious (from both legal and moral standpoints), if you can generate even a tiny bit of doubt AND you have control of a biased OLC, then you’re golden.

      The problem is allowing the DoJ (or any other element within the Executive) to have it’s own, binding, judge. That puts two branches inside one and you are screwed.

      Add in signing statements and you have all three branches in one. You also have the UE of Bush II.

      Why hasn’t anyone taken the issue of signing statements to the SCOTUS? Or, if they did, why the heck did they lose?

      • bmaz says:

        There is no problem whatsoever in having a former judge be head of the DOJ. For the life of me i can’t see your point here. You want somebody that has significant experience in criminal and quasi-criminal (civil rights, Constitutional, governmental, administrative) law. Unless you get a total fucking rube that couldn’t find an actual courtroom with a map and a GPS device, like Gonzales (who was briefly an appellate judge), that means you are going to get a former prosecutor, former defense lawyer or a former judge. Arguable a judge would be the most neutral and detached, all things else being equal. The real issue is the quality and credibility of the person; this is where Mukasey has shown himself lacking; but that does not inherently result from him having been a judge.

        Re your comment at 32; where in the world do you get this stuff? That is wrong.

        • JTMinIA says:

          bmaz: “There is no problem whatsoever in having a former judge be head of the DOJ. For the life of me i can’t see your point here.”

          I never said it was a problem for the AG to be a former judge. The problem is having an office within the DoJ (and, therefore, the DoJ as a whole) act as if it were a judge. It’s a violation of Separation.

          As to the difference between mis- and malfeasance, what part of what I said was wrong? I’m not insisting I was right, but just saying that I’m wrong in general doesn’t teach me very much.

    • bmaz says:

      True, but that certainly doesn’t make the opinion have the force of law, does not make the subject of the opinion legal, and does not preclude criminal prosecution. Mukasey, and Lederman too for that matter, mouthing words to the different don’t mean squat.

  9. perris says:

    holy crow empty wheel, your post just inspired an epiphany;

    democrats, bloggers and all progressives need to stop saying;

    “water boarding terrorist suspects” when referring to the programs the president is talking about

    we need to start using the term;

    “torturing innocent people”

    and they are innocent, we are torturing anyone and everyone they gather, though we have no reason to believe the know anything at all, we are torturing them

    this has to be the way congress questions mukasey and everyone else;

    “you are approving water boarding on innocent people?”

    to which they will try to claim “these are suspects”, and we will obviously point out that everyone is a suspect, innocent as much as guilty

    this is a really good idea and if someone has a congress’s ear, this should be suggested

  10. Loo Hoo. says:

    Democrats need to make this clear–Bradbury is about more than a personnel dispute, it’s about whether the President is above the law.

    But Bush is above the law. The democrats have put him above the law by taking impeachment off the table, and by confirming the likes of Mukasey.

  11. maryo2 says:

    Lederman says that he can’t imagine the OLC lawyers being prosecuted for giving bad legal advice, but he also says the advice was “about conduct that had been universally proscribed for more than a century.”

    He says whether the OLC advice was wrong and whether they knew it was wrong raises “thorny issues about the criminal culpability of the advice-givers.”

    I say – That centuries old history is pretty strong evidence that it is reasonable to assume that the OLC lawyers knew their advice was wrong.

    • JTMinIA says:

      You can’t prosecute lawyers within the OLC for giving bad advice (that’s only misfeasance), but you can prosecute for purposefully giving a false opinion that led to illegal activity. Read the TPM piece on Durbin.

    • looseheadprop says:

      Can the OLC be moved to the Judicial Branch, (mostly) out of the reach of politicians?

      I think there may be some confusion here (probably because it talked about as a junior SCOTUS). But OLC is not a judge, of anything.

      OLC is a branch of DOJ which give written legal opinions to the executive branch. They are merely advisory opinions. No more glorious than the opinions given by the office of white house counsel to the president.

      With this explaiantion.OLC opinions are binding on all executive branch agencies. White House counsel opnions are only binding on WH staff.

      OLC opinions are NOT binding on the other two branches of Gov’t.

      Putting OLC in Judicial branch would create constitutional havoc. B/C then courts could not hear cases chalenging OLC opinions. Mukasey is largely full of poop, emphasizing the procedural over the substantive

  12. JTMinIA says:

    But you can’t deprive any group of lawyers.

    So, my solution would be to require that OLC opinions be both public and subject to litigation.

    Oh, wait. That’s close to what Feingold has been begging for. Never mind. If Feingold is asking for it, it has zero effing chance of coming true.

  13. maryo2 says:

    “but you can prosecute for purposefully giving a false opinion”

    Exactly. Lederman does not think the actual interrogators are culpable, but the OLC does seem culpable.

    They should either present the secret opinion or Congress should assume that the secret opinions are horse crap and rely on centuries of tradition as well as globally accepted standards to give the opinion authors 20 years in prison.

    • bmaz says:

      Listen, this meme that is floating freely here is pure bunk. Any of these idiots, lawyers or torturers, can be held liable; and they are without question, in light of the facts, culpable (there is a gross misuse of terms going on also). Now, all the things Lederman discusses, and that are being bandied about here, are certainly potential, and may even be compelling, affirmative defenses; but they do not bar the seeking of accountability.

      • JTMinIA says:

        bmaz: “Listen, this meme that is floating freely here is pure bunk. Any of these idiots, lawyers or torturers, can be held liable; and they are without question, in light of the facts, culpable (there is a gross misuse of terms going on also). Now, all the things Lederman discusses, and that are being bandied about here, are certainly potential, and may even be compelling, affirmative defenses; but they do not bar the seeking of accountability.”

        It’s not a question of whether any of these people can be investigated in general. The issue is whether the DoJ in particular can investigate. If you keep this in mind, then where is the hole in Lederman’s version of Mukasey’s argument?

        • bmaz says:

          This is kind os a generalized response to the above. Couple of points first. A) This is, under the circumstances existent, a fairly existential discussion; B) Given the qualifications you just went through, which may have been present earlier but I didn’t see, I may have misunderstood your drift and we may not be all that far off. Okay, that said, here is my best simple response.

          As I have said before, I truly respect Lederman, and his bonafides to discuss this are far superior to mine (that has never stopped me before, and my trial record against people people far better than me is shockingly good somehow or another; so I press on). It is my read that Marty, without point blankedly saying so, leaves the clear impression that such an inquiry/prosecution can’t be done as opposed to isn’t cleanly and procedurally feasible. I don’t deny him any hometown sympathy and loyalty to the OLC either, were I in his shoes, the same might well still hold. However, I believe that said impression left to the average reader is dead wrong. What we have here is more analogous to a procedural stumbling block, albeit it a significant one, than a jurisdictional bar of some sort; and I really don’t think most people reading his stuff get that. It is not that the mere existence of the OLC opinions forecloses anything being done by the DOJ; they cease to be the “official position” of the DOJ the second an honest broker at the DOJ says they are suspect and are being investigated. Even fucking Law of the Sea Captain Jack Goldsmith acknowledges that; it was indeed the basis of his “heroic action”.

          Now, reaching this point and then delving further does create an appearance of impropriety for the DOJ to be the prosecutorial arbiter; and i think this is what you are saying. I agree with that; but it doesn’t mean the action itself can’t be done, it just means we have a Catch-22 as to who in the hell can impartially do it. there is not a perfect answer here, so I am willing to find a reasonable compromise and roll with it. simply throwing up our hand and saying “gee it can’t be done” doesn’t work for me. Call me crazy.

          As to the judge at DOJ bit, there I clearly misunderstood what you were apparently saying; it appeared to me you were talking about Mukasey at the DOJ helm. I don’t think the OLC violates separation of powers at all if it is utilized and treated as it was intended; the problem lies with the disingenuous, false and fraudulent way it is being manipulated and interjected by the Bush Administration. As to the misuse of terms, that was only somewhat aimed at you, but not in particular as I recall and related to “culpable” generally, not feasance, whether mis or mal.

          As to your argument to both me and Mary, we may just have to disagree. I don’t give the OLC opinions anywhere near the deference and final word status you do, even within the DOJ. The AG can, and is duty bound to do so, bounce them if they are junk; which they patently are. Bradbury, Yoo, Bybee, Goldsmith et. al. can stick their opinions where the sun doesn’t shine; they are intentionally bogus and dishonest and shouldn’t mean squat to anybody with a brain and a love of what this country is truly based on.

  14. Mary says:

    I don’t buy Lederman’s argument, which he agrees rests upon whether or it is “patently” (meaning, for legal purposes, openly, as opposed to latent or hidden) unreasonable to rely upon the OLC determination that waterboarding (as well as applying pain and stress to the point just shy of organ failure or including organ failure in some instances, and the Bybee gamut) was legal.

    I know he is and remains enamored of OLC from his time there, but purient passions aside, he is basically taking the posture that the Nuremberg Defense should always WIN if there is an OLC opinion to back it up, because how could it be PATENTLY clear that waterboarding is torture?

    I think he’s very wrong there – it is patently clear that almost everything being done under the authority of the OLC memos was torture and abuse and cruel and unusual – depending on whether you choose to rely upon the bill of rights, the GEneva Conventions, the Torture Conventions, the Torture Victims Act, the War Crimes Act, etc.

    His point is primarly that, while:

    If the OLC memos on torture, and the subsequent CIA General Counsel directives, were so patently wrong that any reasonable CIA operative or contractor should have been aware of that fact, then the reliance would not have been reasonable.

    he’s just not sure it is all that patently wrong to tell someone that waterboarding isn’t torture.

    Bull.

    And not just for waterboarding – bull for almost all of it, from the hypothermia, to the burying alive, to the stress hangings, to the mock executions, to the disappearing, to the kidnap and taking hostage of family members, etc.

    Bull.

    Patently, on its face, absolutely, unequivocally torture, cruel, unusual, abusive and CRIMINAL. Period.

    The one place where there is some quibble room IMO, is that now and then there are defenses to a criminal act (not a decriminalizing of the act, but a defense to that act) based upon certain legally defined necessities or exigencies. Those are pretty much not susceptible to memo-ilization and turn on a case by case, fact intensive examination.

    You want to know one of the MOST telling factors as to whether or not the advise in those legal opinions was patently unreasonable or not?

    The fact that CIA operative, in the field, without regard to pressures of exigency or necessity, froze and would not perform the acts without the authorizations.

    The initial reaction, even in the field, even face to face with these terrorists, was that no one could do what Bushco was asking them to do, without a get out of jail free card from OLC.

    Like flight from a crime, the fact that they wanted specific approval to perform acts of depravity that every civilization and every time has condemned as torture, shows how disingenuous the “reliance” and how patently unreasonable it would be to rely upon that advice.

    Especially when it was being given in secret, not for national consumption, and while the President was refusing to go before the nations of the world and the American people and proclaim that he is authorizing waterboarding.

    And I guess this is where I part company some with those who want only to go after those who gave the orders, not those who committed the acts.

    At some point, we each become responsible for when and how and whether we say ‘no.’ Someone who will not say no when asked to perform depraved acts on another person who is completely under their control; someone who cynically sits back and says, ’sure, I’ll torture them however much you want, as long as you give me a DOJ memo first’ that is someone who is responsible for their own actions.

    Bush can’t give the order without his sure and certain knowledge of the character of the men and women to whom he gives it. Whether they are chaining, tieing and freezing to death a man to death or kidnapping a Canadian and disappearing him into Syrian torture.

    So what Lederman is really saying, is who are we as a nation – who are we as people.

    And the answer he is giving is that, as a national norm, we are people who cannot distinguish whether actions are torture if there is a piece of paper signed by a corrupt lawyer on the table.

    I’m almost to the point of believing that, but I’m not there yet.

    • JTMinIA says:

      Mary: “I don’t buy Lederman’s argument, which he agrees rests upon whether or it is “patently” (meaning, for legal purposes, openly, as opposed to latent or hidden) unreasonable to rely upon the OLC determination that waterboarding (as well as applying pain and stress to the point just shy of organ failure or including organ failure in some instances, and the Bybee gamut) was legal.”

      We need to break this into pieces. There’s the logic of the argument and the validity of the assumptions. If you grant the assumption that there was even a tiny bit of doubt as to whether waterboarding was legal, then the logic of Mukasey kicks in and the DoJ can’t investigate waterboarding. If you refuse to grant the assumption that there was any doubt, then you can investigate.

      With that said, please note that the mere fact that the OLC gave an opinion not only establishes the content of the opinion as the DoJ’s official position, but it also establishes the idea that the DoJ agreed that there was at least some doubt. So, as soon as an opinion is given by the OLC, that would seem to slam the door on any investigation of the activity in question.

      It does, of course, leave any body with oversight on the DoJ free to investigate … both the opinion itself and the process that led to the opinion. So, I agree with everyone who tossed this back into the lap of the Congress. But I still agree with Lederman’s argument that the DoJ is out of the picture, given the OLC opinions.

  15. GeorgeSimian says:

    Mukasey’s argument is hollow. He’s saying that waterboarding was legal when it happened, not legal now, but it could be legal again if the President wanted to do it. That’s not how a law works unless the President is writing the laws.

  16. Mary says:

    “but you can prosecute for purposefully giving a false opinion”

    IMO this is being far too obtuse and existential for the facts at issue.

    You can prosecute for conspiracy to torture and for solicitation of torture.

    But I should have just read through first and said, “what bmaz said”

    • bmaz says:

      Oh stop it; you are doing a far better job explaining than I am. Clearly type a hell of a lot faster than I do too. I respect Lederman and his work, and all of the work, at Balkin’s joint; but, quite frankly, I think he is full of it here (and previously on this same basic issue).

    • JTMinIA says:

      Mary: “

      ( JTM: “but you can prosecute for purposefully giving a false opinion” )

      IMO this is being far too obtuse and existential for the facts at issue.

      You can prosecute for conspiracy to torture and for solicitation of torture.

      You are making the same error, in my opinion, as bmaz. If you limit discussion to whether the DoJ can investigate, then the argument against this stands. According to the DoJ (via the OLC opinion), it wasn’t torture. So any point you make concerning this doesn’t apply to the DoJ.

      Again, other bodies with oversight can investigate, but not the DoJ. If the prosecutor says that W is not a crime, that same prosecutor cannot turn around a while later and investigate anyone for doing it. Going farther, I’m not sure, but I think it’s a crime for a prosecutor to investigate something that is not a crime.

  17. GeorgeSimian says:

    And the argument that he can’t investigate his own Department is ludicrous. He doesn’t have to prosecute unless he finds wrong doing, but to not even investigate is just silly reasoning.

  18. Mary says:

    BTW – to say I think someone is responsible for their own actions isn’t to say I don’t think OLC should be overlooked.

    If I get around to it, I may put up a kos diary on why Conyers really, truly, should start impeachment inquiries – but vis a vis Bradbury. And perhaps Bybee, who is conveniently in a federal appointment (as judge) and whose actions are conveniently not tied to his actions as judge (which are harder to go after).

    Bradbury is really in a prime spot for impeachment, especially with COngressional questions as to the legitimacy of his current tenure as an additional factor.

    When you read you begin with ABC
    When you impeach you [should] begin with OLC

    • bmaz says:

      Heh heh, I have some erstwhile colleagues out here who would argue pretty strongly that he should be impeached for some of his judicial work as well….

    • emptywheel says:

      Please do dig it up. I’ve been thinking a lot about impeachment of OLC, which would be so tidy, and would resolve the question of the publicness of the opinions, of late.

      • bmaz says:

        Hey, I am all in for that game. If we couldn’t prevail on our idiots to impeach AGAG though, I don’t see how we pull this off. I am in for the fight though…

    • looseheadprop says:

      Bradbury is really in a prime spot for impeachment, especially with COngressional questions as to the legitimacy of his current tenure as an additional factor.

      Is Bradbury’s office one that is elligable for impeachment? I think we pretty much figured out Libby was not. I don’t know if he could be impeached, he might have to be fired–Gawd!

      • bmaz says:

        Article II, section 4, provides that “The President, Vice President and all civil officers of the United Sates,” are subject to impeachment.” I would argue that if an appointed cabinet member can be impeached (Blount) and an appointed federal judge (Hastings, others), the appointed head of OLC can be impeached; irrespective of the fact that nothing like that has ever been attempted.

        Mary @60 – As long as OLC is underneath the AG I cannot see why you are not correct here; obviously an ethical President would do something too….

  19. maryo2 says:

    Somewhat related-
    According to TPM, Durbin released his hold on the nomination of Mark Filip as deputy attorney general. Filip clerked for Scalia and Judge Stephen F. Williams. Williams wrote the changes to the Clean Air Act that were overturned by the Supreme Court. Look at this circle-jerk back to war profiteers:

    http://query.nytimes.com/gst/f…..A9669C8B63

    http://query.nytimes.com/gst/f…..A9669C8B63

  20. maryo2 says:

    Shouldn’t Ashcroft and Tenet be called to testify before Congress? The arguments are that OLC lawyers shouldn’t be held accountable for authorizing others to torture back in 2002-2003 and the authorization supposedly went through Ashcroft and Tenet before Bush signed it (at least the process today is supposedly that the CIA asks the DOJ who asks the OLC who writes an opinion that the President then signs).

  21. maryo2 says:

    Yes, yes, give the public the taste for blood by impeaching OLC first. The public is freaking out about not being able to “do” something while the foundations of our government crumble.

  22. perris says:

    holy crow, I have to post a snippet from the link

    how long have I been telling everyone they aren’t going to allow hillary or obama to be the next president?

    that they haven’t been amassing all this power to give it away?

    martial law…it’s getting closer

    Updated to include some evidence from Saildude he posted downthread. See below where it says ”UPDATED” for the news.

    Exclusive! The FBI Deputizes Business
    By Matthew Rothschild, February 7, 2008
    Today, more than 23,000 representatives of private industry are working quietly with the FBI and the Department of Homeland Security. The members of this rapidly growing group, called InfraGard, receive secret warnings of terrorist threats before the public does—and, at least on one occasion, before elected officials. In return, they provide information to the government, which alarms the ACLU. But there may be more to it than that. One business executive, who showed me his InfraGard card, told me they have permission to ”shoot to kill” in the event of martial law.

    Sick Of It’s diary :: ::
    So basically, the FBI is putting corporate capos in charge of security. And they’re giving them shoot-to-kill rights.

    One business owner in the United States tells me that InfraGard members are being advised on how to prepare for a martial law situation—and what their role might be. He showed me his InfraGard card, with his name and e-mail address on the front, along with the InfraGard logo and its slogan, ”Partnership for Protection.” On the back of the card were the emergency numbers that Schneck mentioned.

    prepare yourself

    • perris says:

      more, my bold

      “Then they said when—not if—martial law is declared, it was our responsibility to protect our portion of the infrastructure, and if we had to use deadly force to protect it, we couldn’t be prosecuted,” he says.

  23. Mary says:

    47 – I’m not that fast a typist, but I don’t proof and type as I think read or think, which is great for the venting aspect of blogging (which is what I do) but not so great for the getting it right part and definitely not for the making it readable/legible part.

    51 – It’s more a matter of writing it up and I’m much better at stream of consciousness comments than sitting down and doing the work of trying to put together something that has links and ties the pieces up, but I may try to do it this weekend anyway. I think Wexler might get a leg up going for Bradbury first.

    On Bradbury’s relationship with respect to Mukasey, LHP or someone more familiar with the internal organs (and the external ones they swing freely) of DOJ would know more, but my understanding is that the ultimate authority there (with respect to issued opinions) is still the AGs if he grows a pair and exercises that authority (which may be, for that matter, why there is no ’current’ authorization to torture). If I understand it, the actual authority to make and publish the decisions for the Presidents and agencies, resides in the AG. Obviously, he’s a busy guy, so there is a delegation of that authority to OLC, I think expressed in CFRs.

    But what I learned with respect to Admin law is that if you can delegate, you can put parameters on that delegation and draw it back as well. So I think Mukasey could probably rein in Bradbury if he was willing to dig in and make it a fight – but I may be wrong. Could be there is a statutory trump granting authority to OLC or mechanics for withdrawing the delegation bc of the way it has been published in the CFRs, that makes it something that Mukasey can’t do anything about.

  24. Mary says:

    58 – My take on “all civil officers” (as opposed to principal officers)

    The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

    emph added

    is that absolutely he’d be eligible. I’m not sure what the discussion was about Libby, but I’d say he was eligible too, except that after he resigned there became the question of whether or not you can impeach an officer who resigned. I think you can, but apparently there is a contrary view (REMOVED from office meaning that they have to be in office)

    IMO, it craters Mukasey on his privilege and other claims for not turning over the opinions, if Congress is requesting them for an impeachment inquiry.

    Got to go – will check back later to see if there is better advice to the contrary.

    • bmaz says:

      No, somewhere, I think there is pretty solid ground (I really knew this crap during the Clinton junk; even ran a couple of questions by Rehnquist at a function here in Arizona after reading his book on the subject, which is actually boring but quite good) for impeaching simply to remove the residual vestiges of the civil office; i.e. pension, protection services, etc. even if the subject has left the office. Not saying it would be worth it, or should be done; but I think it certainly could be done.

  25. Mary says:

    63 I think lhp’s point on Bradbury is that he isn’t actually appointed right now. He’s just a principal deputy assistant atty gen in OLC, who because of the failure to approve his appointment, twice, by the Senate is acting as “acting” head of the dept without actually also even being named as “acting” head. If I have that right.

    Still, he’s an officer. I think you can impeach pretty much all of them, the issue being that not often will a more low level officer be one whose actions rise to the level of impeachment. Here, I think they do, plus impeachment is a great option to pull him out of the “acting” category he and the Pres have put him in – illegally according to several on SJC and HJC.

    61/63 on authority – that makes sense to me. Bradbury can try to spit out what Bush wants, but I think if he gets away with it, it goes directly back to Mukasey’s acquiesence.

    ugh – running late – got to go

    • bmaz says:

      Ah, true, but he was appointed to his acting capacity; not that I necessarily believe that this line of discussion is determinative of impeachability……

  26. Hmmm says:

    Bush at CPAC: Keep a Conservative in the White House:

    He thanked the conservative crowd for sticking with him like they did Reagan.

    “You were with him all along. And over the past seven years, you’ve been with me. I appreciate your support,” Bush said as the crowd responded with chants of “four more years.”

    Are we looking at convention-brokered Cheney/Bush ‘08 ticket?

  27. AZ Matt says:

    From TPMuckraker

    Reid Files Bill to Extend Surveillance Law Again
    By Paul Kiel – February 8, 2008, 4:40PM
    Senate Majority Leader Harry Reid (D-NV) makes a bid to avoid another edition of the administration’s surveillance squeeze play. From CQ:

    To guard against the expiration of a temporary surveillance law Feb. 16, Senate Majority Leader Harry Reid , D-Nev., has filed a bill that would extend it for 15 days.

    The Senate is expected to pass a six-year bill overhauling the Foreign Intelligence Surveillance Act on Feb. 12, but that gives lawmakers little time to work out a compromise between the Senate bill and a House-passed version before the Presidents Day recess begins and the temporary law expires.

    Reid filed the latest extension Friday “in case we can’t finish the conference negotiations in time,” spokesman Jim Manley said.

    • Hmmm says:

      Interesting. It’s neither a sprint nor a marathon, more like a chess game that goes on and on and on. McConnell and Boehner’s move now, I guess. I’m beginning to think Reid and Conyers are correct that interminable delay is preferable to actually reaching the endgame.

  28. watercarrier4diogenes says:

    Maybe someone should propose this Bradbury impeachment to Wexler’s office. Here’s his latest post on dKos: Rep. Wexler Diary: Attorney General would not enforce contempt.

    Given Conyer’s meeting with the two Code Pink people yesterday where his fear of who would succeed Bush (bullshit!) I’d say a domino effect of Bradbury>Cheney>Bush would be most efficient and effective. The idea being that getting evidence out in the open on Bradbury will push public opinion toward digging deeper, i.e. Cheney. Once clear evidence has been brought into the sunlight about what Cheney’s been up to (Addington, AG AG, et al), public sentiment will be so solid, Conyers/Pelosi won’t have anything left to quiver and quake in the dark about.

    And once that’s all done, they’ll push to replace Pelosi with Waxman.

    • bobschacht says:

      “. . . I’d say a domino effect of Bradbury>Cheney>Bush would be most efficient and effective. . . .”

      Ha! I’ve been thinking along those lines, but hadn’t thought of applying the “Domino effect” label to it. Good! I like it!

      The thing is to get impeachment hearings started. These jerks are so incestuous that if we can start pulling the string anywhere, with the impeachment powers of subpoena, the whole thing will unravel.

      Holy metaphor, Batman!!!

      Bob in HI

  29. watercarrier4diogenes says:

    Here’s the story on Conyers’ meeting with the two Code Pink representatives. It doesn’t live up to the title, but it provides insight into what Conyers is still thinking, the same old Dem fear that all 70% of the disgust with Bush will somehow evaporate in light of proof that we SHOULD be disgusted (not to mention enraged, etc). Impeachment Hearings: Conyers Said to be on the Edge

    • Loo Hoo. says:

      Conyers’ initial reply was along the lines of “Didn’t you see the hearing we just had? Do you know how many people saw that?” To their credit, the two Code Pink women replied “Not very many, since most people don’t get C-Span.”

      CSPAN is only on cable? That’s just freaking wrong.

      • watercarrier4diogenes says:

        Where have you seen C-Span on a broadcast channel, VHF or UHF? I’ve lived in LA, SF and now Portland, OR and it’s always been only on cable, which I don’t subscribe to.

        • Loo Hoo. says:

          I haven’t. Just saying that it should be on public television. Why aren’t our dems in congress seeing to that?

          • watercarrier4diogenes says:

            umm, cuz they think it’ll take a 60 vote majority to get it done? /snark
            Thanks for clarifying what you meant. Now that I look at it again, I see where you were headed.

            OK, back to the Merlot for me. ;^}

            • bobschacht says:

              Bob – this is a much better paper on the ranking method, but still doesn’t have the actual rankings that I see.

              Thanks! Following up on your link, I found Assessing the Quality of Democracy, which compares Brazil and Chile, South Africa and Ghana, Italy and Spain, Romania and Poland, India and Bangladesh, and Taiwan and Korea. Stanford University’s Center on Democracy, Development, and the Rule of Law seems especially interested in questions like this.

              Bob in HI

  30. siri says:

    Durbin made an excellent statement on the Senate floor, yesterday (I think, been watching FISA non stop, coulda been the day before). He just nailed this whole entire issue TO THE WALL. INCLUDING Bush’s desire for a “get-out-of-jail-free card”, MUCH TO HIS CREDIT!
    I believe there are some out “there” in America, who are really starting to GET IT about this administration and are actually searching on the tubez for truth. Or if not that, just beginning to “assume” that if Bu$h wants it, there MUST be a problem with it. FINALLY.
    I think we and the Democratic party in general need to be NOW addressing the issue of “The United States of Amnesia” (Vidal) regarding the rethugs plans for the NEXT elections.
    The NEXT TIME these particular folks get the power, we are all just undeniably SCREWED. We need to make that impact statement NOW. Impeachment or prosecution after 1/20/09 would do likely do it.
    NO PARDONS! Not again in my lifetime! JUST SAY NO!!!!!
    s

    • selise says:

      Durbin made an excellent statement on the Senate floor, yesterday (I think, been watching FISA non stop, coulda been the day before). He just nailed this whole entire issue TO THE WALL. INCLUDING Bush’s desire for a “get-out-of-jail-free card”, MUCH TO HIS CREDIT!

      yes, it was awesome…. sadly, my cable crapped out for a few minutes and i didn’t get any of it. otherwise it was on the list of clips to be posted to youtube.

  31. behindthefall says:

    “God bless us all,” said Tiny Tim. I know this household would like to be in some other country, with a lot of water between there and here.

  32. jacqrat says:

    Hi Guys…

    I don’t have any erudite commentary to add – I just like to come over from FDL and hang out with the Big Brains once in a while. (hugs)

    • Xenos says:

      Hasn’t stopped me!

      This is a good place to ask questions. Plus, I can report that I just got back from watching the Amherst Womens’ basketball team crush Connecticut College. Some folks here consider that good news.

  33. bmaz says:

    For what it’s worth, I believe that John Dean, on Olbermann’s Countdown, just seconded exactly what Mary and I have been saying here as to the fact that OLC opinions have no effect as law, are not binding upon courts, and are not only proper to be reviewed by the Attorney General, but ought to be; and yes Mr. Mukasey that means ones that came before you were there too if they appear to be improper (which any mental midget in the world can discern they clearly are).

  34. klynn says:

    That write-up paired with this EW write-up is disturbing. I wonder how non-partisan the recruitment is? This is sick…

      • Hmmm says:

        Thanks for calling that out. Yes, the link certainly leapt out at me. Continuity of this administration beyond the expected timeframe is the idea.

  35. JohnLopresti says:

    This is a first impression, although based on years of reading ML. I agree his institutional pride is a central trait. I like the counterpoint about examining Bradbury, not for his current obstinate perennial standoff rerenomination attribute, but because the essence of his work is he is the one doing it. My take all along has been there is a strain between intell entities and OLC, both being very smart. I have seen ML chary of a tuneup for OLC. I would expect many in congress for a panoply of motives sharing that reluctance. There is legal counsel in the intell agencies, and some of those offices are in the DoD. The current president hopped on the aumf steed with several encouragements, which is how olc became enmeshed in the ue smokescreening; and the signing statements fiasco is the debris of many skirmishes that presidental gamble generated. ML has done a few pieces on how to provide close oversight of OLC, but the problem is the olc portfolio is to nudge the edges of footnoted feasibility; and the conflict with stateless terror persons in aggregate or in organization membership has afforded few tennable recourses to this president whose primary factions are conservative ideologs and some folks considerably more atavistic in their theoganies, pushing him into a series of feints all in asymmetrical countermeasure zones. I think the president and cohorts recognize that as a problem their current coalition of people seeking to reinstate torture in century XXI’s most dominant nation cannot prosecute successfully; they do not have popular support for tortcha, and even Rove could not drum up genuine sentiment to bolster that. The arguments like Mukasey’s, Cheney’s, and their associates’ in this regard only work in hyperparse but will not stand the light of day in modern humanitarian discourse, which I think is why its proponents are more elusive than combative, and quit their posts, or are dismissed, when the opposition favoring liberal humanist government grows raucous. I think the hearing in which Mukasey avoided the contempt-based questions was a collateral field, though somewhat disparate from the issue of whether OLC is the entity that should be approving of torture. Usually that nefarious pursuit was part of workgroups’ efforts to keep the field manual and code of military justice up to date. The mercenary versus universal conscription paradigms also are elements in a related debate mostly no one really wants to exhume.

    • bmaz says:

      You know, bottom line, our system of government is set up wonderfully to deal with individualized, and even pocket areas of criminality and malfeasance in the government; but is vulnerable to systemic criminality and malfeasance, especially when the malefactors and malfeasance are spread and enabled across multiple branches. I am not sure this is a hole that can be plugged or removed and still have our general ethos be what it is supposed to be. At some point, it just boils down to having decent people at the critical nodes, and we have seen the result when we don’t. We have seen the enemy, and to some extent, it is all of us for ever permitting things to devolve this far. This is certainly not to discount the root criminals that have been running amok the last seven plus years…

      • JohnLopresti says:

        I paid a visit to ML’s site; there are 2 related posts in succession there; usually the website is drowned in trolls, so a meaningful dialog is difficult to obtain. He does Orange’s site, too. But I think he was looking for a colloquy longtime; it is difficult to launch one at natseclaw blog, too few visitors, and certainly at scotusblog, many smart but adversarial visitors, where ML elaborates opinions sometimes; the pyrotechnics in Odah and Boumedienne still may produce an interesting batch of reflections on scotusblog, yet; I see Scotus as a voice of social sanity that will not brook any tortcha, and I cannot imagine how Clement would juxtapose any solid argument on behalf of tortcha with or without olc benediction; ACS has good venues occasionally where ML participates; and certainly gulcfac is too close to the hearth with too many former high level officials on temporary teaching posts to entertain the kind of interchange ML seems to want to evoke. There are the academic and professional organization conferences, which already are turning to media folks for expert inputs to broaden the dialog; venues which will keep some of our local betters busy, with all due respect.

        • bmaz says:

          I have tried to engage on some of those sites before; there are some very bright folks, but an awful lot of really dogmatic ones that, as you say, make it tough to really get in an intelligent discussion (even though they are intelligent). On the whole, I prefer the friendly confines right here and actually believe that, although this is not a legal site per se, that some of the best legal discussion on the toobz, at least that I have seen, is right here. (Thats kind of a presumptuous statement isn’t it? For better or worse that is how I see it) Maybe not always hyper technical, although often it can be, but by and large some of the most sound and fair analysis at least. Strikingly, a great deal of it comes from non-lawyers as well; and that is pretty cool.

  36. Minnesotachuck says:

    bmaz @ 82:

    At some point, it just boils down to having decent people at the critical nodes, and we have seen the result when we don’t. We have seen the enemy, and to some extent, it is all of us for ever permitting things to devolve this far. This is certainly not to discount the root criminals that have been running amok the last seven plus years…

    Amen!!!!

  37. bobschacht says:

    [email protected],
    Excellent point, and reminds me of Naomi Wolf. But the little ray of hope I have is that Hitler’s German Fascism, and Moussolini’s Italian fascism, and most of the others she mentioned, did not last long. Murderous and terrible, yes, but no Thousand Year Reichs.

    That kind of resilience, however, costs the lives and liberty of thousands of opposition forces. We cannot give up. We must continue to give each other hope and support. And here is one place to find it.

    I was looking around the other day for a world ranking of democracies. I didn’t really find what I was looking for– the only rankings I could find were meaningless mush. The “highest” ranking category had about 50 countries in it, and was about as discerning as “free” versus “unfree.”

    But along the way, I found a study which claimed to discern a strong correlation between Net Neutrality and Democracy: In other words, the free flow of information is crucial for the aspects of Democracy that we hold most dear. Think of that the next time an assault takes place on net neutrality. And the one sure bet is that there WILL be another assault on net neutrality.

    Bob in HI

      • Xenos says:

        The explanation I heard (don’t remember where) was that it is impossible to put a tap on the lines without disrupting service. So the lines were intentionally cut in such a way that it would take at least a week to get them fixed, leaving ample time to install several taps.

        Hey, even if the NSA did not do it, maybe the Russians did it. Or someone else. Just points out how insecure the internet, and VOIP, must be.

    • bmaz says:

      Heh, you know, there was something very much like that recently; ranking the “first world” countries or something. We were not at the top….. I’ll see if I can find it.

      • bmaz says:

        The folks at EFF are really incredible people, and are doing incredible work with better than meager, but still pretty damn limited, resources; especially considering that they are fighting the best funded entities in the world – the US Government and the telcos. I have spoken to them a couple of different times on a couple of different cases, and the people I talked to were as fine as their work. For any of you so inclined, they are an extremely worthy place to donate.

    • watercarrier4diogenes says:

      Not OT at all, Hmmm. Amazing letter, but then, the House (Pelosi/Hoyer notwithstanding) has been much more productive from a Dem standpoint that the Senate. Yeah, Conyers hasn’t gotten where he needs to go, but RESTORE was a big + and Waxman continues to turn over rocks no one wants him to turn over, and Wexler is picking up steam… OK, “hope springs eternal”, I know. 8^)

      • selise says:

        Amazing letter, but then, the House (Pelosi/Hoyer notwithstanding) has been much more productive from a Dem standpoint that the Senate. Yeah, Conyers hasn’t gotten where he needs to go, but RESTORE was a big +

        from EFF:

        in today’s letter — written by John Dingell, Chairman of the House Committee on Energy and Commerce; Ed Markey, Chairman of the House Subcommittee on Telecommunications and the Internet; and Bart Stupak, Chairman of the Subcommittee on Oversight and Investigations — the congressmen argue that the president is creating a “false choice” for lawmakers.

        no conyers, no reyes on the letter. looks to me like the progressive caucus is still fighting – and maybe still against their own leadership in the house.

        i haven’t forgotten how the house leadership blocked holt’s decent fisa bill, or that the only reason the RESTORE ACT is worth supporting is because of the work of the progressive caucus (and holt in particular) to force the house leadership to make changes.

        we need pelosi, conyers and reyes – and it doesn’t look to me that we have them yet. but maybe the progressive caucus is in a strong enough position to fight this one.

  38. bmaz says:

    This is one of the sickest and most disturbing things I have seen in a while. America the good is dead and gone. What we have done, and are doing, in Iraq is not only no better than Sadaam Hussein, it is worse. Read this stunning article from Solomon Moore in Saturday’s NY Times and try not to cry for both Iraq and what is now the rotting festering shell of America:

    A top Army sniper testified Friday in a military court that he had ordered a subordinate to kill an unarmed Iraqi man who wandered into their hiding position near Iskandariya, then planted an AK-47 rifle near the body to support his false report about the shooting.

    Under a grant of immunity, the sniper, Sgt. Michael A. Hensley, an expert marksman and sniper trainer, testified in the court-martial of Sgt. Evan Vela. Sergeant Vela is accused of murder, impeding a military investigation and planting evidence to cover up an unjust shooting. An earlier charge of premeditated murder was dropped.

    Sergeant Vela is the third soldier to be charged in the death of the Iraqi, Genei Nesir Khudair al-Janabi, last May. Sergeant Hensley and another soldier, Specialist Jorge G. Sandoval Jr., were acquitted of murder charges last year, but were convicted of planting evidence. As part of his sentence, Sergeant Hensley was demoted from staff sergeant.

    All three soldiers were elite snipers with the 501st Infantry Regiment, Fourth Brigade (Airborne), 25th Infantry Division, based at Fort Richardson, Alaska.

    The military trials have highlighted a secret baiting program, begun in early 2007, in which snipers placed lures like fake explosives or other weaponry to draw insurgents into the open, where they could be killed.

    But Sergeant Hensley’s testimony at the base here suggested that by last spring, in addition to baiting and killing, soldiers had added a new tactic: carrying weapons to plant on bodies to deter prosecution.
    [remainder of blockquote edited for fair use]

    But, hey, being the beacon of light, democracy, sanctity of life, truth, justice and accountability that we are under the Pol Pot Bush Administration; we meted out fair and equal justice, because “As part of his sentence, Sergeant Hensley was demoted from staff sergeant”. Words just really don’t mean much here…

  39. Hmmm says:

    OT — A DKos diary, FISA: What We Know From a Technology Standpoint, makes for a good nutshell of the data rates involved in the hoovering.

    A comment from ‘wondering if’ Includes these instructive bits of history I’d forgotten:

    CALEA (’digital wiretaps’) originally had the FBI wanting to require that up to 10% of all calls on a telephone switch be monitored. This was back in the early year of Bill Clinton’s Administration, around the same time as the infamous Clipper Chip; Some Senator by the name of John Ashcroft strongly opposed Clipper type technology on privacy grounds; the kickoff for Clipper came from a policy paper from Vice President Gore.

  40. chetnolian says:

    I’m coming a bit late to this, but found Marty Lederman’s analysis remarkably convincing. But I need to remind people, as I have before on this, that the US isn’t the World. If waterboarding is torture, and I many countries accept that it is, then after this administration is out of office, there will be lots of folks who were part of it who had better be careful where they travel to.

  41. MadDog says:

    FYI – from the EFF: House Committee Leaders Unite to Oppose Immunity for Telecoms

    House Committee Leaders Unite to Oppose Immunity for Telecoms

    Announcement Sets Stage for Congressional Showdown

    Washington, D.C. – Today, a formidable trio of House Committee Chairmen sent a stern letter to their colleagues urging them to oppose immunity for phone companies that assisted in the NSA’s warrantless wiretapping program.

    The rest of the letter (pdf) is here.

    Maybe there is some hope for the 4th Amendment after all.

  42. klynn says:

    Hey, thought you might like to read the whole ACLU document on Corporate Role in surveillance citing Infraguard if you had not seen it yet:

    http://www.aclu.org/safefree/r…..40809.html

    It’s a PDF download for free.

    Written by Anthony D. Romero in 2004…So, it’s been around for a while. I am not sure if his DKos quote is a new one as of recently. It is not in any press releases I can find on their site. But it seems to come up on many blogs as of recent when Googled…

    • klynn says:

      109 is for Hmmm @ 94. I’m having problems getting the reply to display lately…Goofy stuff on my tubes right now…But if I reply to my own texts, it shows…

  43. kspena says:

    OT-Just for the record, as I am listening to Hayden on cspan replay of testimony from Thursday, when asked if private contractors were involved in waterboarding, he said, “Yes, I believe so.” He then said he wasn’t sure and would have to check on it.

  44. BayStateLibrul says:

    OT, where DNA is more important than ERA? (McNamee’s lawyer does have asense of humor, no?)

    Is Hardin talking about the 110th Congress, that we know and love?

    “It is a heck of an Americana experience,” Hardin said in a phone interview Friday evening. “When you get to go through and see all the representatives and how diverse and passionate they are, you feel better about the whole process.”

    “The Congress people were very responsive,” he added.

  45. cboldt says:

    this latest push by the progressives, plus the fact that they have another extension ready, give me a little hope; but not much

    The number of signatories, and their general “place” in the hierarchy of power, inclines me to think they are being “humored.” Their objection and voice can’t be blocked, and while it’s good to let them express their point of view, I’m not sure there is enough weight of objection in the House as a whole.

    Yes, the right things are being said. But not by many.

    The procedural details are in accord with the substantive material (e.g., contents of amendments, UC agreement) and a vote breakdown that heavily favors capitulation to the DNI demands. I wouldn’t be shocked if there was another extension, as a token political concession to the objectors, but I don’t expect Congress to send another extension to the WH.

    I don’t follow the House that closely and don’t understand House procedure very well. So I’m stuck with mixed messages in that venue. On the one hand, RESTORE passed with a majority (no immunity); on the other hand, the number of vocal opposers to immunity is about the same fraction in the House as it is in the Senate; well under 20%. They can object and put on a good fight, but from what I can see, the numbers aren’t there.

  46. JTMinIA says:

    My impression of the House and Senate over the last 25 years or so is that the House is more extreme and swings back and forth radically as a function of who has the majority. The only reason why this isn’t usually reflected in the actual laws being passed is that the Senate acts as a moderator (in the sense of toning down radical swings), mostly because of the Senate rules combined with a lack of having 60 votes on one side.

    But that’s mostly historical (as in: not lately). That seemed to be the trend when the Speaker and Majority Leaders knew how to play the game. Right now, with Pelosi and Reid, it’s just about backwards. McConnell has pwn3d Reid on just about every issue, so the Senate is the radical half, leaving it up to the House to tone it down. And that’s what freaks me out (giving my historical impression of the two halves). Having to rely on a body being run by Pelosi to prevent radical legislation is not something I like.

    • bmaz says:

      You sure won’t find much disagreement here on that comment.

      BSL @ 117 – I still don’t know where this will end up, probably with Clemens being guilty as sin; but are you starting to see the weirdness of MacNamee and the difference in quality of lawyering yet? (Otherwise, I am going to keep edifying you Heh Heh) Mac’s guys may win on the facts, if they are extremely lucky (I don’t even know if the facts can save that side at this point), but they are tadpoles in the shark pond with Rusty Hardin. And yeah, Rusty was talking about the same Congress; for getting google eyed at star power, and being malleable dupes, they are the same fucking idiots we know and loathe so much. One other thing, I don’t care what is, or is not, on that pile of crap the McNamee camp trotted out Thursday, when and how they did it was a supreme tactical blunder, and pitiful lawyering. It will be jammed up their backside, and IRS jackboot Novitsky’s as well.

      • BayStateLibrul says:

        Yeah. All kinds of sub-plots to this drama.
        You heard about Act IV “Debbie does Dopping”
        Tune in on Wednesday, to the Pre-Valentine hearts and flowers session.

        • bmaz says:

          As to Debbie:
          A) she is way hot, very nice and very sympathetic
          B) even if true, which I am not sure I believe in the least; MacNamee just looks like a total ass for interjecting this. Any juror would literally hate him for this and there is no way in hell he is going to prove that one.

            • bmaz says:

              Who ya gonna believe; Debbie or the creep who keeps bloody gauze in crushed beer cans in his basement and lies to federal investigators and courts about it? Personally, I have inspected the evidence and can find no trace of needle marks or foul play; everything looks very much in order.

              • GulfCoastPirate says:

                Have you seen Debbie? My guess is it will take her about two seconds before she has those Congressmen throwing the ex-trainer overboard.

                • bmaz says:

                  Hey, lookee here, Rusty has MacNamee caught and documented in another lie. On the initial foundation of MacNamee’s entire story in the Mitchell report. Heh heh. Who could have predicted this…..

                  • GulfCoastPirate says:

                    Would I be wrong in assuming that Rusty knew this and stuck it in his back pocket for future use before he allowed Roger to walk that plank?

                    The whole steroids thing is a crock. Do you remember that ‘chicks dig the long ball’ commercial? The owners made millions off these guys and now they’re acting surprised.

                    Did you see Roger’s press conference? Remember him glaring at a local reporter and calling him out? The guy’s name is David Justice and he has a local talk radio show. He was talking the other day about the millions that the owners are now making off MLB.com on the Internet. Just a pot of gold they found sitting in their laps. Now think back to the time after the last strike when they couldn’t give tickets away because people were so disgusted. They ought to name that pot of gold ’steroids’.

                    • bmaz says:

                      Hardin has undoubtedly had it in his pocket for a bit; exactly how long is hard to say. He is extremely thorough and has a first rate team around him. He would have debriefed Clemens about everything, and I mean everything down to when, where and how many times he went to the bathroom during the entire relevant period of time and then accumulating every known piece of information in the world on Macnamee and investigating with a microscope the whole lot of it. If you will recall, Clemens didn’t make any public statement of significance for a few days after the report first surfaced; the word I hear is that they were tipped off in advance and were already putting all this together and investigating up a storm. I guarantee you this much, Rusty knew the score pretty damn well before he said word one and was convinced he was on dead solid ground with what he said. Macnamee’s lawyers run their yaps; Hardin won’t say anything he doesn’t intend to say and have a specific reason for saying. And there is no way in hell he would be letting Clemens talk like he has been without being very certain of exactly where he was in the scheme of things. Hardin has a lot more under his magic hat too; you can bet the pot on it. I predict there will be at least one more little golden nugget revealed, maybe two, between now and Clemens’ testimony. Rusty will keep the crescendo building, slowly, toward the testimony. Won’t put it all out in the table yet, but he will keep the ball matriculating down the field as Hank Stram used to say. Macnamee is toast; only a question of how crispy he will be when it is all over. I speculated after hearing that taped phone call that Hardin and Clemens played at the press conference that MacNamee may well be a suicide risk; I still believe that.

                      Now mind you that Clemens may still be guilty in the ultimate truth; but that isn’t what this is about here. This is a legal case and all that matters is what is proved, or not proved, and how it plays out; Rusty Hardin is one of the extremely few best of the best at what he does. As good as he is, however, he wouldn’t dream of playing his hand this way unless he is dead certain of what he held. I have seen this scene in many different movies before, with lawyers of this kind of quality; my money has been all in with Hardin from day one. Not only still is, I might double down. Hey, I blow it every now and then; if I am wrong I will admit it. You try enough of these cases, you bite it every now and then; I will be shocked if this is one of them though. By the way, Rusty hasn’t even started carving up IRS agent Novitsky, who has been ginning up this dog and pony show from the get go. If it gets that far, better get some more snacks cause that will be a real treat; he will not hold up much better than MacNamee, trust me on that. Bet you can’t tell I love watching this stuff eh?

                    • bmaz says:

                      By the way, I have always kind of liked Richard Justice. If you watched him from then up until now, you have seen him backpeddling at an increasing speed from what he was initially positing. He knows. He just can’t spit it all out yet. Rocket ain’t a real forgiving guy either I don’ think…..

                    • GulfCoastPirate says:

                      Justice is OK, his radio show is someties quite good. For one, he must be friends with Feinstein so he gets him on semi regularly and those are interesting talks. He was on the other day after Bobby Knight resigned and Knight is one guy, love him or hate him, who makes for some good stories.

                      Justice is into the idea that anyone who used steroids is cheating. Don’t know if I agree or disagree but that’s his schtick so when he got a chance to go after Roger he did so. I think there must have been some bad blood between the two before this though. Even with going after Roger hard Justice has pointed out repeatedly, on his show and in his columns, that Roger was different than some of the others in that he was only accused of doing anything less than 20 times over a multi year period and for steroids to be effective they have to be taken on a regular basis so in Roger’s case it was more experimental than anything else.

                      What’s the IRS guy’s involvement in all this? Is that how they originally went after MacNamee? I wonder why George Mitchell let himself get involved in this nonsense? He can’t be that hard up for money.

                      The one who’s being real quiet is Petitte. Think that’s a function of Hardin who knows what he is going to say and has asked him to keep quiet?

                    • bmaz says:

                      No way Hardin and his client can take the tact they do if they have any question whatsoever as to what Petitte will say. It was obvious from the get go what a tilting point Petitte could/would be; I just don’t see how you could pursue this strategy if you have any question at all on what he would say. And Petitte and his lawyer, as unhappy at being involved in the whole mess as they may well be, would want to know, have to know, how Clemens’ team was going to play things and what they might be going to say about Petitte; so the two sides are on the same page. That analysis would hold even without the fact that Petitte and Clemens are friends; which the are.

  47. JTMinIA says:

    bmaz –

    I, personally, don’t give OLC opinions much weight at all, but that doesn’t seem to change the following: given that the OLC is part of the DoJ, if the OLC says W is legal, I don’t see how the DoJ can turn around and investigate those who did W.

    That’s the entire argument. I am saying nothing about whether the people who did W ought to be investigated. I am saying nothing about whether members of other bodies can or can’t investigate. It’s completely restricted to the issue about which Mukasey was asked: would the DoJ investigate? The answer appears to be “no” and the reason appears to be logical.

  48. perris says:

    this will probably get lost in epu land but this is STUNNING

    reported on the lead at think progress right now, the vice president is declaring himself president

    I kid you not, first he invokes ‘president of the senate’ and then he takes a policy differant the bush…mind friggin boggling;

    [QUOTE=MeanGXP-R;640480]I[SIZE=”3″] made wastegate adjusted and could hardly keep the wheels from breaking loose and I have an automatic!!!! I was getting max boost of 15 to 16 now 22. When accelerating on the highway it goes to 22 then settles at 19. From a dead start the wheels break loose every time, I have to drive differently now. Even when I accelerate from 20 or 30 mph the back end starts to get squirrelly!!!

    After two weeks my car is running like I never made the wastegate adjustment. I guess the ECU corrected for my changes. Can anything be done about this?

    What if I disconnect the battery, will it run at 22PSI again even for a few days?[/SIZE][/QUOTE]

    this is a really big surprise to me, I thought without a tune the ecu wouldn’t allow more then 20 psi

    • perris says:

      oops, wrong paste, this one goes on 126

      In order to make his dramatic break with the administration, Cheney invoked his rarely used status as part of Congress, joining the brief as “President of the United States Senate, Richard B. Cheney.” It is a position he has used at times to make the point that he is sometimes part of the legislative branch and sometimes part of the executive.

      “Lawyers with long experience at the court could not recall another case in which a vice president took a position different from that of his own administration.” To my knowledge, I don’t recollect it ever happening before,” said Richard Lazarus, co-director of the Supreme Court Institute at Georgetown Law Center.

      • perris says:

        I think you can look to my post on 59 and 62

        do you want to know who the next president is going to be?

        don’t be surprised if it’s cheney

        do you know bush made the totally bizarre claim that cheney is the best vp in history?

        seems like a preperation for a cheney presidency

  49. Mary says:

    101 – Am I the only one who wishes we could go back to having soldiers instead of “warriors?”
    102 – a nontechie thanks you for the link.

    112 – no, I don’t agree.

    We need to break this into pieces. There’s the logic of the argument and the validity of the assumptions.

    The argument has no logical support without presupposition of the validity of assumptions that are flaty invalid. It’s like saying there is a logical argument to be made for saying that the sky is yellow, if you assume it is valid to say that blue is yellow.

    If you grant the assumption that there was even a tiny bit of doubt as to whether waterboarding was legal, then the logic of Mukasey kicks in and the DoJ can’t investigate waterboarding.

    No. You are confusing reasonableness with beyond a reasonable doubt. The standard for relying on an opinion is whether or not that reliance is reasonable – not wheteher or not there was “even a tiny bit of doubt” as to whether the opinion “could” be valid. The standard of proof of whether or not the actions constituting torture were actually undertaken (or the actions constituting conspiracy to torture were actually undertaken) is beyond a reasonable doubt (which really isn’t the ‘even a tiny bit of doubt’ but rather ‘a scintilla of REASONABLE doubt’ fwiw).

    As Lederman himself points out, though, the standard for reliance on a legal opinion is whether or not reliance on the patent (on their face) statements and conclusions in the opinion is a “reasonable” standard.

    If you refuse to grant the assumption that there was any doubt, then you can investigate.

    Nope, whether or not something is reasonable is a jury question. Not an investigation question. If a reasonable prosecutor can believe that a reasonable jury would find it unreasonable to believe that waterboarding is not torture, based on an OLC opinion (just like a reasonable jury at Nuremberg could find it unreasonable to believe that the actions of the Nazi war criminals on trial there – almost ALL of which were supported by legal opinions from the Nazi lawyers – could be reasonably deemed to be legal, despite the Nazi opinions to the contrary), then you can and SHOULD investigate.

    Since a waterboarding case is in the JAG textbook, and since every waterboarding case ever brought, to my knowledge, resulted in convictions, then I say rotsa ruck on whether or not a reasonable person would rely on an opinion that says, “but if W says it, then that makes it different” Because, really, that IS the basis for that opinion and others from OLC. In the end, it isn’t really even a definitional approach on torture – it is what Bradbury said to the SJC, what Comey said was the predominant opinion that he did not believe, what Whitehouse pointed out on the floor,what Ehrlichman said during Watergate. The sole underlying basis of all of these OLC opinions, admitted by the OLC, is that “if the President orders it, it is legal.”

    So the issue then is – do Americans believe that? I don’t think so. But if they do, then that is where we are and what we are, but that is the ONLY case where you could say that there should be no investigation and prosecution. If America believes that the Dept of Justice should operate under the rubric that if the President orders it, it is legal – THEN you would say, don’t investigate.

    With that said, please note that the mere fact that the OLC gave an opinion not only establishes the content of the opinion as the DoJ’s official position, but it also establishes the idea that the DoJ agreed that there was at least some doubt.

    While I don’t really follow the logic or syntax in the above, here are a few observations. First, opinions are given all the time on things about which there isn’t much doubt. Go to a bond closing sometime and look at the opinions of counsel. Opinions on due execution. Opinions on …

    In any event, I think what the DOJ opinion indicates is something quite contrary to what you seem to think, if I understand your position correctly. Did anyone at CIA request an opinion to capture? No. To put handcuffs on? No. To put a guard on? No. To begin questioning? No.

    Did some exigent set of circumstances cause someone, on their own account, to begin using torture/harsh techniques and were there then requests, as this was discovered, for whether or not the reaction of the questioner was subject to a valid exigency excuse/defense at law? Maybe, but if so we haven’t heard about that.

    Instead what we have heard about is a cold blooded, calculating, decision and determination to start using torture techniques – techniques that had been clearly held and deemed to be torture and that could (and did) result in death – and as that decision was conveyed, the reaction was very different than the reactions to the decisions to handcuff, to capture, to question.

    What happened when they were told to torture (using the euphemism of “harsh techniques”) is that pretty much every fiber of every being involved in that situation revolted and knew that they were at Nuremberg, they were sitting in the dock, about to answer the question of whether or not they followed legal orders. And some – like Dan Coleman and Jack Cloonan – gave the right answer. Torture is wrong and it is a crime. I don’t care what a piece of paper says.

    Others said – do we own the prosecution? Can we get a corrupt lawyer to give us a piece of paper that says what we want it to say? If so, sure, I’ll torture. As a matter of fact, remember that one very public report indicates CIA agents were building a coffin in which to bury Zubaydah alive – all based on a lawyer telling them that wasn’t torture. Who would find that reasonable?

    The question isn’t “what do you think it is reasonable to do to a known and convicted terrorist” but rather, what do you think is reasonably deemed torture by reasonable people. And it legal opinions that flout reasonablity cannot be relied upon – that’s black letter.

    So, as soon as an opinion is given by the OLC, that would seem to slam the door on any investigation of the activity in question.

    No – for many reasons, most given above. But also, and foremost, you have the fact that the OLC opinions are not judicial opinions. No jeopardy applied, no actions are foreclosed legally or constitutionally. THere is no statute, there is no regulation, there is no rule of law that prohibits prosecution.

    As a matter of fact, there is a whole body of law on reasonable reliance on advice of counsel and we’ve touched on it above.

    There is another body of law that also applies – administrative law (which I learned a little about from a very good prof who is now a Bush appointed Circuit Ct judge but for whom I still have good thoughts) And as shocking and depressing and demoralizing as it can be to many people, the fact is that when someone in gov gives you advice on how something can be done, and that advice ends up being wrong, you are not legally insulated from liability for doing it wrong. Sure, lots of times administrative accomodations are made if you followed the advice given by the people in the agencies, but legally, you can be liable for handling a matter incorrectly, even if you were following the advice of the agency representatives.

    Another item of importance is that the OLC opinion was kept secret. This goes to a lot of different issues, one of which, prominently, is the knowledge of culpability that is circumstantially demonstrated by hiding the opinion, but more than that – we can’t have secret law. The Exec has no power to create, in a secret star chamber buried in OLC, secret torture laws without the other two branches of goverment having notice and ability to respond.

    Also, with changes in AGs, DAGs, dept heads, administrations, etc. DOJ always and constantly changes positions – it is disingenous to say that one AG’s exercise of prosecutorial discretion to not pursue certain kinds of cases or crimes becomes a binding stance on a successor AG (or dept head, etc.) That just isn’t true. So the fact that one set of prosecutors gave a bye to crimes (but without public Executive pardons or court approved pleas waiving punishment) does not mean that other prosecutors, or even the same prosecutors under different leadership, are somehow prohibited from going after the crimes and criminals during the SOL.

    It does, of course, leave any body with oversight on the DoJ free to investigate … both the opinion itself and the process that led to the opinion.

    Well, I definitely agree that Congress has the ability to investigate – I’m not sure what you mean by any body though. However, you run into the same issue that was the TRUE issue with the OLC opinion. Not whether or not it is reasonable to say waterboarding isn’t torture (it’s not) but rather that DOJ is being operated under an approach that if the President says do it, it is legal. So if the President says don’t turn over information, don’t show up to testify, etc. Mukasey has said that he will not cooperate and DOJ will not cooperate. He won’t turn over the opinions. He won’t enforce subpoenas. He won’t force testimony. He won’t force preservation of evidence. And Congress has no “troops” to back it up. (Which is why I think impeachment of Bradbury needs to be first step – troops can be swayed when consequences are at hand)

    But going back to your orignal “we need to break it down” point – the fact that Congress can and should investigate is a severable point from whether crimes have been committed and should be prosecuted. IMO, the answer to both is very clearly yes.

    But I still agree with Lederman’s argument that the DoJ is out of the picture, given the OLC opinions.

    I guess, as I pointed out above, I do agree with Lederman’s recitation of what the blackletter law is – which is that in order for anyone to rely on the opinion, the reliance has to have been patently reasonable. That he has to concede and does. But I disagree on his interpretation of patently reasonable and to that I will stress again in this ramble the issue of “patently.”

    I think there is a very good argument that a secret opinion, covertly tucked away for fear of having it ever see the light of day, can never be said to meet the initial level of being patent. A secret opinon is almost by definition latent in and of itself and offers no patent aspects on which reliance can attach.

    • GulfCoastPirate says:

      Mary wrote:
      ‘The argument has no logical support without presupposition of the validity of assumptions that are flaty invalid. It’s like saying there is a logical argument to be made for saying that the sky is yellow, if you assume it is valid to say that blue is yellow’

      Hasn’t this been SOP for the wingnuts for quite a while now? As one who was trained in physics I’m always quite shocked at the way they approach issues related to science. It seems to me this is exalty how they operate on a regular basis.

      • bmaz says:

        Yes. E=mass squared. c doesn’t exist, and if it does, it means whatever they say it does. It is truly sick. With your training, here is a story you will appreciate. One of my classmates in undergad, and still one of my best friends, named his dog Newton; because “that mutt sure ain’t no Einstein”. Well, the cabal running our country sure aren’t Einsteins, but they are very destructive. So was the mutt, literally gnawed on and thrashed around until it was totaled, a vintage Macintosh tube amp; man was Newton in the doghouse, so to speak.

        • GulfCoastPirate says:

          Nice story. Tube amp huh? A couple of summers ago I built a tubed amp and preamp for my garage. My place of retreat from the wife and two colleged aged daughters. Just the dog and I although she’s a little hestitant to go in there with me when summer comes to the Gulf Coast. I keep getting this look like – where’s the AC?

          You guys still into tubes? Definitely has a positive effect on what passes for recorded music these days.

          I got a laugh out of what Mary wrote because you can almost see some of them making that argument. They state ‘the sky is yellow’ and we’re all supposed to take them seriously and get into a serious discussion of their hypothesis. Yes, yes, it’s really yellow but god put a blue filter in front of it …………..

          The global warming thing drives me batcrap crazy. I just loved the way they used no big hurricanes hitting the US mainland as a reason to try to deny the data. Of course, when you point out that two Cat 5’s hit Mexico within a couple weeks of each other (first time two Cat 5’s have made landfall in the same year) that doesn’t count because they didn’t hit the US. Go figure ………

          • bmaz says:

            Heh, yeah we are old school. Tube amps and vinyl records are still very big with both me and my friend. He rebuilt his block and it is in use currently. My old 60s Marantz amps (pre-Sony, while Marantz was still handmade in New York) are in boxes somewhere and need restoration. I currently use an Adcom solid state, but it is quite good; although it still does not match the warmth of tubes.

            • GulfCoastPirate says:

              Interesting equipment although I find vinyl very difficult to find these days. I think it’s because I became a little tired of the older acts and their $250 seats at the shows and have gravitated to more of the ‘Texas’ music scene. The younger guys coming up who play the dancehalls and you can get in for $15. People like Pat Green, Roger Creager, Restless Kelly – folks like that. Problem is their labels don’t seem to even know vinyl once existed so you’re stuck with CD’s. The last big act we saw was ‘old school’ Prince on the Musicology tour and I can’t really think of anyone else I’d pay that kind of money to see again – and that was only about 90 a seat. Even thinking of passing on Bruce this time around – the recording itself on his newest is just horrific. I can’t believe these people put that crap out and then expect you to pay that much to see them live.

              Maybe try a tubed pre-amp in front of that Adcom. There is a pretty large DIY market for some good, relatively inexpensive equipment these days. It’s apparent not everyone thinks digital is the best we can do.

          • bobschacht says:

            I got a laugh out of what Mary wrote because you can almost see some of them making that argument. They state ‘the sky is yellow’ and we’re all supposed to take them seriously and get into a serious discussion of their hypothesis.

            The problem is the MSM. A wingnut proclaims “the sky is yellow.” So the MSM finds someone who points out that the sky is blue, and then puts that person in a debate with the wingnut, treating each as an equally valid point of view. As a strategy, this always works to the disadvantage of reality-based thought, because rather than being regarded as CW, it is Questioned, and hence is Debatable and, therefore, devalued.

            Bob in HI

            • GulfCoastPirate says:

              You’re absolutely correct and what drives me crazy is even when you see it coming, and then see it happening, there doesn’t seem to be a darn thing we can do about it. If you try to point it out most people don’t have the foggiest clue what you’re talking about.

    • bmaz says:

      …beyond a reasonable doubt (which really isn’t the ‘even a tiny bit of doubt’ but rather ‘a scintilla of REASONABLE doubt’ fwiw).

      Interestingly, most don’t tool around at these depths, but the standard model jury instruction on reasonable doubt in most jurisdictions has evolved over time and is really more nebulous and broad than you would think; in spite of containing that basic language. Here is a form commonly utilized in Federal trial courts today:

      The government has the burden of proving the defendant guilty beyond a reasonable doubt. In civil cases, it is only necessary to prove that a fact is more likely true than not, or, in some cases, that it’s truth is highly probable. In criminal cases such as this, the government’s proof must be more powerful than that. the government’s proof must be beyond a reasonable doubt. reasonable doubt, as the name implies, is a doubt based on a reason; a doubt for which you have a reason based upon the evidence in this case. If, after careful, honest, and impartial consideration of all the evidence, you cannot say that you are firmly convinced of the defendant’s guilt, then you have a reasonable doubt.

      Reasonable doubt is the kind of doubt that would cause a reasonable person, after careful and thoughtful reflection, to hesitate to act in the graver or more important matters in life. However, it is not an imaginary doubt, nor a doubt based upon speculation or guesswork; it is a doubt based upon reason. The government is not required to prove guilt beyond all doubt, or to a mathematical or scientific certainty. It’s burden is to prove guilt beyond a reasonable doubt.

      Here is a form that I used to have decent success in getting adopted in many cases as a base instruction or, at a minimum, some of this language being added to that particular court’s standard instruction:

      The State has the burden of proving each and every element of the offense charged beyond a reasonable doubt. The burden of proof never shifts to the defendant, but rests upon the State throughout the trial. A mere preponderance of the evidence is not enough.

      It is not sufficient that the defendant’s guilt is probable only, or even more probable than his innocence. Nor can the defendant be convicted upon mere suspicion. No amount of suspicion however strong, will warrant his conviction.

      There is always a reasonable doubt of the defendant’s guilt when the evidence simply makes it probable that the defendant is guilty on any, or all, of the elements of the crime charged. Mere probability of guilt will never warrant you to convict the defendant. Conviction must be based only on proof beyond a reasonable doubt as to every element of the crime charged.

      The middle paragraph is really useful in arguing to the jury because the language can so easily be melted in and out of your facts to plant the seed of probability as opposed to certainty.

      • Hmmm says:

        bmaz, I drew a jury duty summons for the USD Court of Appeals in SF once. Fortunately I didn’t get empanelled as it was predicted to be a 3 month trial — heavy stuff, FBI sitting at the Prosecution table, tales of relatives providing evidence against the defendant, two prior mistrials at appeal, etc. Anyway, the Judge read the reasonable doubt language to be used in the case, which to my (admittedly increasingly collander-like) memory sounded just like your first example. The Judge then asked whether any of the prospective jurors had any questions about the language — trying to help avoid yet another mistrial there, I guess. After a long pause which many of us spent looking around at each other with puzzled faces, I decided to speak up. “Your Honor,” I asked, “that wording seems pretty vague. Is there any clearer definition you can give us?” A beat passed, and then he answered: “No.” Further beats passed. Everybody leaned back and went “Hmmm.”

        • bmaz says:

          Yeah, I hate the usual model standard instruction of which that first one is pretty representative. In trying to improve it over the years, it has actually been made far worse and maddening if you ask me. I honestly believe that it would be more fair, and easier on jurors, if the court simply said the standard is “a reasonable doubt” and left it there instead of giving that gobbledygook. I actually like the second alternate I gave a ton better; I think it is better for jurors, not to mention my selfish interest because it is far more malleable for me to argue off of.

          • Hmmm says:

            I agree, your alternative wording is much much better. I like how it enumerates the possible loopholes and then extinguishes them, one by one. Nice work.

    • skdadl says:

      Also, with changes in AGs, DAGs, dept heads, administrations, etc. DOJ always and constantly changes positions – it is disingenous to say that one AG’s exercise of prosecutorial discretion to not pursue certain kinds of cases or crimes becomes a binding stance on a successor AG (or dept head, etc.) That just isn’t true. So the fact that one set of prosecutors gave a bye to crimes (but without public Executive pardons or court approved pleas waiving punishment) does not mean that other prosecutors, or even the same prosecutors under different leadership, are somehow prohibited from going after the crimes and criminals during the SOL.

      Somewhere in his exchange with Schiff, Mukasey seemed to be conceding something about investigating cases “going forward” — ie, not investigating possible criminal behaviour in the past. That made me shake my head — I mean, that’s just not the way the law works, is it?

      Am I right in thinking that the treaties (Geneva, UN Convention, etc), once signed, become American law? If that is true, then in itself that is a challenge to Mukasey’s position on prior OLC opinions, no? I am finding the relativism very frustrating — it’s not as though the lines weren’t drawn very firmly three generations ago (and even earlier on specific techniques like controlled drowning — there is nothing simulated about it unless you’re using simulated water, as some medical expert recently said somewhere), and the hyper-narrow focus on DoJ opinions is obscuring that anchoring truth.

      • bmaz says:

        I am sorry, Mukasey can’t discuss that because he has discussed that with the President, therefore it is privileged, classified and/or prohibited by states secrets. That is the law because Boosh said it is the law. If you don’t believe him, ask the President of the Senate, King Cheney. If you don’t believe him, he will shoot you in the face; actually he might anyway. Dress yourself in orange, wear a sign that says “I am not a lawyer” and duck.

    • Hmmm says:

      What’s in it for Mukasy? Why is he performing mind gymnastics for W?

      What’s in it for all the members of the Vast Right Wing Conspiracy(TM)? A seat near the head of the table once the police state comes down. They must all be convinced it’s not going to end in a bunker this time.

  50. Loo Hoo. says:

    Also, where would Mukasy be in the event of war crimes trials? I do not understand why he took this job under the terms that he did.

  51. masaccio says:

    Late to the topic, but I can’t understand why Lederman thinks we live under the rule of law if no one can do anything about law-breaking. It isn’t just that his argument means that there can be no criminal prosecution, he and his blogmates make it clear that they don’t think the civil complaint against Yoo has any merit either. How can we say we live under law if there isn’t any way to make government live under law?

    The old English Common Law Chancery Rule of Equity, that there is no wrong without a remedy, is just one of the many aspects of what I was taught as the bedrock of American Law that been lynched by these people. Pretty much everyone who has been in this administration are in the mob.

    • bmaz says:

      Yeah, and they have been pitching this blarney so long and hard now that even sane people are biting off on it. Literally stunning.

  52. Loo Hoo. says:

    There’s got to be more than just the gooperentology. I don’t know. Maybe these people are all going to live the highlife in Paraguay and take Blackwater and all of the resources we have purchased for them with them. Kinda like Jonestown.

  53. CTuttle says:

    Lets give it up for the Progressives…

    Progressives Vow To Oppose Immunity in FISA Legislation
    Congresswomen Barbara Lee, Lynn Woolsey & Progressives Target Bush Spying Program with Telecomm

    WASHINGTON, DC – February 8 – Declaring that telecommunications companies involved in President’s Bush’s domestic spying program “undermined [the] fundamental civil protections and privacy rights of Americans,” twenty-nine House Members today wrote to President Bush to warn him that they will oppose any legislation that grants the companies retroactive immunity.

    http://www.commondreams.org/news2008/0208-02.htm

  54. kspena says:

    John Dean said yesterday on Keith’s show that if immunity were granted to the telecoms, it would negate the actions against them. However, if at some future time it could be demonstrated that the OLC/DOJ and the WH conspired to write a ruling to make the illegal appear legal, then participants at both ends of the deal would be subject to serious charges of criminal conspiracy.

    • bmaz says:

      I don’t often disagree with Dean, but I am not sure he is right if that is an accurate synopsis. Somewhat in line with much of the recent discussion on this thread, I am not saying that what Dean implies couldn’t be done; rather that it would be very difficult. Contrary to the OLC opinions, which are effectively no more than mere opinions; ratification of the illegal actions via knowledge followed by passage of immunity by Congress lends the formal imprimatur of law and specific acquiescence and ratification as a matter of law by the United States Congress. That may not be a complete bar to what Dean suggests, but it is one huge hell of an affirmative defense, one that would almost by nature preclude any chance of conviction of any of the culpable parties on the root crimes. Something tangential and unsatisfying maybe, but not what we want and what is necessary.

    • bmaz says:

      Okay, I reread what you said and tried to recollect the Dean interview, which I did see. What Dean said was entirely consistent with what both Mary and I have been saying here; so there is no real disagreement. And certainly at a future time what you described might well could be done; but it wouldn’t likely work on this specific issue for the reasons I stated @159 above, which is what Dean said also.

  55. kspena says:

    Yes, indeed, a big “if”. But if I remember correctly, Gerald Ford lost to Jimmy Carter primarily because people were so angry that he (Ford, a nice guy) had not prosecuted Nixon.

  56. Sedgequill says:

    As to both impeachment proceedings and criminal investigations at high levels of federal government, the majorities in both houses of Congress fall back on the rationales that such proceedings would disrupt essential activities of Congress and the executive branch and would divide the nation; plus, when a presidential term is almost over, they can argue that it’s prudent to ride things out and hope for improvement next administration. I wish we weren’t being taken care of so much.

  57. Hmmm says:

    Not OT at all — Congressional investigators have been given permission to review interrogation tapes of a terrorism suspect as part of an inquiry into the destruction of other tapes by the Central Intelligence Agency, according to a letter sent Thursday to the House Intelligence Committee.

    The letter was sent to Representative Silvestre Reyes, the Texas Democrat who is chairman of the House Intelligence Committee.

    Plus a bunch of new fuckery about keeping Reyes’ investigation otherwise hobbled.

    • bmaz says:

      I don’t know if you’ve ever seen the Frank Capra movie It Happened One Night with Clark Gable and Claudette Colbert or not, but there is a wonderful scene where Gable is instructing Colbert as to how to hitchhike. She scorns his advice and shows just enough leg to get a ride to stop. At any rate, that is what is going on here. If the cabal is showing a tape, it is totally innocuous, but reveals just enough leg for them to argue that what they are doing isn’t so bad and they “good guys protectun the fatherhomeland” This is nothing but the standard modus operandi of this crew, the same freaking dog and pony bait and switch shit they pull every time. This crap is like clockwork. Reyes undoubtedly already has the hook well planted in his dim bulb mouth and is being reeled in like a fat tuna as we speak.

  58. Praedor says:

    Oh c’mon! The only thing between Bush and Cheney and prosecutions is the Democratic Congress. Even with Bradbury out of the way and Mukasey spewing ”Good German” nonsense about how even criminal opinions by the OLC are legal as far as he’s concerned, the Congress will do NOTHING. They haven’t done anything up to now and they are desperate to keep doing nothing. They pray every night to their God of Shit to PLEASE let the clock run out on Bush/Cheney so they don’t have to do their duty.

    Bradbury is unnecessary to keep protecting Bush/Cheney. The Democratic are on that case in a BIG way.

    Finally, am I the only one who keeps getting screwed with ”database error” messages that totally bork the ability to post?

    • bmaz says:

      Currently I am good. Sometimes the collective here doesn’t like my Safari and i get that same issue; I switch temporarily to Firefox and everything is groovy. Usually the gig cleans up within hours and Safari is good to go again. No clue why, but that is the deal. Maybe try an alternate browser if you have said problems; best advice I got and it isn’t worth much.

  59. MadDog says:

    Totally OT but terribly cool: NASA World Wind

    World Wind lets PC users zoom from satellite altitude into any place on the globe. Leveraging Landsat satellite imagery and Shuttle Radar Topography Mission data, World Wind lets you experience Earth terrain in visually rich 3D, just as if you were really there.Virtually visit any place in the world. Look across the Andes, into the Grand Canyon, over the Alps, or along the African Sahara.

    • bmaz says:

      Everything bollixed up when I tried to visit the Naval Observatory. Would swear I saw several large shredding and cryogenics trucks in the vicinity though….

  60. JohnLopresti says:

    MD, check SyHersh’s geopolitical interviews this week in NYorker about the Euphrates bombsite from last summerInSyria; SH supplies the name of a private company that ’sells’ photos that provide enough resolution apparently to see tractor trails.

    I still think one of the keys to the olc legitimizing tortcha is for congress to spread the inquiry to other offices which have a decades long record of screening and filtering similar rules and regs. Another reminder I read was about some of the changes Barr made at olc, plus the tangents BillC commissioned olc to explore so he could govern while the indepCounsel was trying his best to slow down the democratic presidency. This reminded me of a JReno notice I read, though I have to find my jottings; the essence was congress had legislated that if the executive was going to refuse to implement a law, DoJ was bound to report it; the idea was congress saw it as a followthrough on signing statements; there is a lot of hortatory in the president’s formal rejections of laws the president signs, but often the executive then complies. This would be a good project for Joyce Green of coherentbabble or Charlie Savage, though, exploring Addington’s web. The current president issued a signing statement last week rejecting a few more points of law, as well

    On the Reyes receipt of a letter, the way I read the NYT report was essentially he is given a command to steer clear for two months until the inhouse investigation of the extant tapes chain of command is complete; make that June 2008, three months pre-election.

    • skdadl says:

      … the essence was congress had legislated that if the executive was going to refuse to implement a law, DoJ was bound to report it; …

      Could someone explain what it means for the DoJ “to report” something?

      • JohnLopresti says:

        The advisory was because I wrote from memory about the dispute in 2006 over executive privilege and the counterbalances available in congress. A disorganized summary might proceed in the following way, my dispersed notetaking is at fault here, but these items have links, hopefully helpful and still viable. AG Reno sent a letter to VP Gore advising of the indefensibility of a law and DoJ’s decision not to defent that law. Here is a similar letter on a different topic from Reno to Gingrich about indefensibility of a law. Another item in my signing statement folder seems related, from Dellinger to Reno. The ‘reporting it’ concept also relates to this discussion of the Carter era legislative veto practice, with caveat that that writer tends to the abstruse but often seems to have a few gaps in footnotes, though managing to remain both accurate and interesting. I continue to look for the exact cite in law that explains the mechanism of DoJ reporting to congress when the president has denied to implement a law, but it was part of that review in 2006 which led to the ABA study on signing statements; and the essence was though congress had designed the mechanism for this negative feedback it was rarely observed by AGs. I usually prefer to avoid exploring those official archives, opting instead to delve into the reviews in academia.

      • JohnLopresti says:

        sk, I think yours is a good question. It accomplishes the neat circling that brings Mukasey’s performance, denying prosecutions or even review of pending contempt of congress matters, this past week in the liveblogged hearing, into a focus similar to the tangle of argument surrounding the early Savage articles on signing statements; and it seems this territory likely is one congress will visit again, given the intransigence of the new AG, as congress nears a time of wanting resolution or at a minimum the figure of catharsis, with respect to a bundle of scandals the administration has avoided based on some ivory tower paradigm of the executive it holds dear. While the following article’s politics are diffuse, it makes some interesting points about the outcome for the Clinton presidency in its relationship to olc at a time when the IndepCounsel was creating havoc for the executive, depicting the result as paving the way for fourthbranch excesses, though I do not buy the article’s full reasoning; there is a lot ‘out there’ on this topic which was more prominent two years ago. Maybe Savage’s own site has expanded into this realm, beyond the book promotion material, though it is pretty specialized.

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