Gitmo Fixer Resigns

I guess BushCo cares more about their show trials than they do having a long-time Cheney fixer.

William Haynes, one of the architects of our DOD detainee policies, announced his resignation today (h/t TPMM).

The Department of Defense announced today that General Counsel of the Department of Defense William J. Haynes II is returning to private life next month. Secretary of Defense Robert M. Gates said of Haynes, “I am sorry to see Jim leave the Pentagon. I have valued his legal advice and enjoyed working with him. Jim held this important post longer than anyone in history and he did so during one of America’s most trying periods. He has served the Department of Defense and the nation with distinction.” Said Haynes, “I thank the President and the Secretary of Defense for their confidence and for the opportunity to serve. I leave the Pentagon humbled and inspired by the selfless sacrifices of the men and women, uniformed and civilian, who defend our country. And, I thank their families.”

You’ll recall that Haynes is the guy who said "we can’t have acquittals" in the Gitmo show trials coming up.

"[Haynes] said these trials will be the Nuremberg of our time," recalled [Morris] Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’"

Davis submitted his resignation on October 4, 2007, just hours after he was informed that Haynes had been put above him in the commissions’ chain of command. "Everyone has opinions," Davis says. "But when he was put above me, his opinions became orders."

Reached for comment, Defense Department spokesperson Cynthia Smith said, "The Department of Defense disputes the assertions made by Colonel Davis in this statement regarding acquittals."

Mind you, I doubt Haynes’ departure changes the general perception in the Bush Administration that "we can’t have acquittals." Rather, I suspect they decided they couldn’t have Haynes hanging around, discrediting the show trials.

That would kind of defeat the purpose of show trials, wouldn’t it?

Udpate: Come to think of it, since Colonel Davis announced last week he was going to testify for Osama bin Laden’s former driver, Salim Ahmed Hamdan, and since he would almost certainly be asked to describe his conversation with Haynes about how there could be no acquittals, I can see how Haynes would be a liability for the show trials.

I guess DOD wasn’t really so convinced that Davis was wrong about his conversation with Haynes, huh?

69 replies
  1. bmaz says:

    Well, I think the the real problem may be that they are very possibly going to need Haynes as a fact witness to rebut Davis; there are ethical issues with calling and putting a member of your own law firm on as a substantive fact witness. Without him resigning, if I were defense counsel, I would sure as hell argue this.

    • emptywheel says:

      You think they’ll call to rebut his testimony with Hamdan?

      That makes sense–but does it necessitate one of the Cheney loyalists? Why not just promote him up somewhere. Make him acting head of OLC or something.

  2. bmaz says:

    Kind of depends how the defense would use the Davis testimony. If it is indeed straight up to show that the trials are rigged, which is my assumption at this point; I think they put Haynes on to say that he never said that or that the real context was________. But you got to rebut something as inflammatory as the Davis statement.

    • emptywheel says:

      That’s what I think it will be. Davis said he would not be able to say Hamdan was innocent. So he’s not going to speak to the fact that KSM said Hamdan was innocent, if he was (Hamdan is also accused of driving AQ weapons with knowledge of their eventual use, which seems likely to be a fair claim, depending on where they got the evidence).

  3. skdadl says:

    To hear that Haynes was appropriating the honour of the law that emerged from Nuremberg … that is beyond shocking, all the way to something like obscene. Do these guys believe what they say?

  4. Slothrop says:

    Haynes is a puppet. The war crimes guilt belongs to Dick Cheney, master of torture and renditions, with 5 deferments from military duty and behind the attacks on the patriotism of others.

    It’s way beyond the level of disgusting.

    • Jeff says:

      Very interesting. Three questions they should ask Fitzgerald:

      1. Robert Novak testified at Scooter Libby’s trial that Karl Rove discussed with him a 1999 trade delegation from Iraq to Niger – information derived from the classified CIA report of Joseph Wilson’s mission to Niger, which Novak explicitly noted was classified in his infamous July 14, 2003 column that blew the cover of Wilson’s CIA officer wife. Is that correct? [Yes.] So according to the public record of your investigation and the trial, Karl Rove knowingly disclosed classified information, correct? [Yes.] To your knowledge, did Karl Rove ever suffer any consequences for that leak of classified information – consequences apart from nearly being indicted by the grand jury on different charges, I mean? [No.] For instance, was his security clearance revoked? [No.]

      2.Scooter Libby met with reporter Judith Miller for very unusual, long interview on July 8, 2003. According to Libby himself, he was acting at Vice President Cheney’s direction. The trial established that at that meeting, Libby identified Valerie Wilson as a CIA employee to Miller, effectively blowing her cover. But Libby’s story was that the purpose of the meeting was to disclose portions of the then-classified, now-infamous October 2002 National Intelligence Estimate to Miller. Libby also testified that to do so without leaking classified information, the Vice President had get President Bush himself to give permission to give the information out to the press, effectively declassifying it. That story must have seemed suspicious to you, since you knew that no other senior government officials ever heard of any such a secret presidential declassification of the NIE, even though there was considerable debate within the administration at that time about trying to get it declassified the ordinary way, debate that included Vice President Cheney quite a lot; since there is not a single mention in Libby’s copious notes of President Bush’s declassification of the NIE; and since Libby had leaked the very same information from the NIE to two reporters (Bob Woodward and David Sanger) on previous occasions without any qualms about getting the President’s say so. After you talked to you, you talked to Vice President Cheney and President Bush as part of the investigation – discussions we still don’t know anything about. But here’s my question: at Libby’s trial, did you affirmatively agree with the defense that such a secret declassification of the NIE by the President did take place before Libby met with Miller on July 8, 2003, or did you simply not contest the defense’s contention that such a declassification of the NIE took place? [Answer unknown.]

      3.Now, you determined early on in the investigation that Valerie Plame Wilson was a covert agent according to the definition of that term in the relevant statute, the Intelligence Identity Protection Act, correct? [Yes.] Can you please explain the interpretation of that definition you used to arrive at the determination that Plame was indeed covert under the IIPA, in particular how you interpreted the part of the definition that requires that the undercover officer – Ms. Wilson in this case – have served outside the United States in the previous five years. Because some commentators have tried to claim that because Ms. Wilson simply traveled overseas on an undercover basis in the five years before her cover was blown by the administration, but did not necessarily have a posting that lasted for some particularly long period of time, that she didn’t count. [Potentially interesting answer.]

      • emptywheel says:

        I don’t think this is going to be a Comey-type reveal all. THere are four other people on the panel. And presumably they’re trying to set up the problems with the Durham appoint. We MIGHT well hear about efforts to fire him in Fal 2005, which would make graet theater. But then, remember this is HJC, not SJC, so the possibilities for pulling something like that off are more limited.l

        • Jeff says:

          No doubt. But that’s not reason not to try (that is, to wish). I’m like David Addington, I’m going to push and push and push until a superior force pushes back. And yes, I recognize that leaving a comment on a blog with the relevant questions that will never be seen by the relevant subcommittee is not a very effective way of pushing, but what are you gonna do.

            • Jeff says:

              Exactly. You set yourself up for that one.

              In other words, my reply to your skeptical response to my questions is, to paraphrase Addington, “Marcy, why are you giving away the people’s power?”

          • Rayne says:

            EW’s right, you never know who reads teh blogs.

            But here’s another chance – you can send your questions to:

            House Subcommittee on Commercial and Administrative Law chair: Rep. Linda T. Sanchez

            DC office fax: 202-226-1012

            Sanchez’ COS: Michael Torra michael.torra AT

        • nolo says:

          “. . .I don’t think this is going to be a Comey-type reveal all. . . . But then, remember this is HJC, not SJC, so the possibilities for pulling something like that off are more limited. . .”

          I think this will be Sanchez running the show,
          which should make for strong[er] questioning-lines,
          but time-limits will be an important constraining
          variable re fitz. that said, fitz’s description of the
          contrast between his free hand in plame, and the
          durham hamstringing process may be enlightening.

          p e a c e

  5. nolo says:

    and, a small word on hamdan:

    one does not have to be innocent
    to have been the victim of an en-
    tirely unfair “justice” process. . .

    i think davis will indicate that
    the process was fundamentally-flawed.

    but o.j. still did murder his ex-. . .

    [seems EW’s and mine crossed in the ether.]

    just my $0.02.

    p e a c e

    • bmaz says:

      Aye, but on the other hand, you can be quite guilty and still be entitled to dismissal of all charges because of a case and evidentiary set inalterably tainted by police/prosecutorial misconduct. In my little warped world evidence contaminated by torture and a rigged forum more than meet the requisite threshold. Where you been lately? I kind of hope you’ve about got that Cheney dude impeached already…..

      • nolo says:

        bmaz — i quite agree re dismissal of
        the charges — thus my reference to the
        free man that is also the murderer o.j.

        as to my scarcity — been busy on obama stuff.

        as to my inability (thus far) to get cheney
        indicted. . . well, 329 days, and counting.

        p e a c e

  6. LabDancer says:

    I both second & cement your surmise as well with your follow up.

    The previous Gutmo cases have been able to confirm at least that these show trials are subject to review in the Federal Court system, most likely Virginia but otherwise certainly DC, and both those districts have well developed sets of procedures & policies which would allow Hamdan [or whichever of the prisoner/detainee/torturees who might call Davis] to argue that the panel would be stuck with having to accept the testimony of Davis as not just unrebutted, but, given Davis’ former [& to some extent retained] the ’position of the government’.

    I mean, quite apart from a positively staggering number of opinions from all federal courts [altho I find the Siegelman saga too unsettling to be confident about ’Bama – & Ole Miss for that matter] & the great majority of states [not Texas for example, or anyway 20 years ago ago when I last worked there anyway] which would at least allow to the point of nearly making it mandatory to draw an inference against the government based on Davis’ assumed testimony alone[Short of certification from some general officer as to lingering suspicions on the precise nature of his relationship with non-human species for example].

    Just producing Haynes as a witness overcomes the ’technical’ legal arguments & allows the panel to pick and choose – in theory at least, because it may be that Davis has more to say than just on Haynes, & it may be that the prosecution has more witnesses to call in response to Davis than just Haynes.

    This move at least suggests that the prosecution team has one or more lawyers beyond the Cro Magnon developmental stage, but it won’t matter a bit if the BCAdmin has taken steps to assure the objectivity & neutrality of the panel with the same sensitivities shown in selecting the prosecution team. The fact that Davis was on the prosecution team for so long shows the typical flaw in authoritarian ’true believers’: ie. that only a traitor could do anything other than order these detainees executed & found guilty of something perhaps in that order. So it remains theoretically possible that some key person or two on the prosecution team will hit his or her retch limit mid-trial, but pretty unlikely given the publicity that’s gone with Davis’ departure & the recent reports of his expected testimony.

    Having seen a few military courts martial in action I have to say first that it’s far from fair to suggest that they are kangeroo kourts as a matter of kourse. It’s just that because they are not in the normal federal or state or municipal streams of courts, they are allowed to follow sets of priorities thought to be more pertinent to military life. In many cases that can yield a quite arguably MORE not LESS ”just” result, ie. being one which accords with the military ethic.

    [One does get the sense that the prevailing ”military ethic” broadly endorses charging but not convicting or punishing minor incidents like murdering entire families or gang rape, but it’s always been a matter of degree]

    Which brings me to one of my two major objections to these hearings being conducted in a setting designed to be respondent to what is meant by ”justice” in the military context, being: If these folks are by definition ”enemy non-combatants”, or worse: ”enemy combatants for non-state actors”, what in the hell is the relevance of the American military sense of ”justice”?

    I mean, even the other large point of objection, the essentially secret nature of the hearing process, is at least consistent with long standing cultural traditions as American authoritarianism has been able to preserve from the Great Coming Together of McCarthyism & White Rascism in the ’50s & the manufacture & marketing of Constytooshunalizm from the laboratories of the Federalist Society right through to us from the Standard & NR & the AEI & such friendly spokespersons as Kristol & the Kraut; to say nothing of the current administration’s secret affection for dicks — [sorry, I meant Dick’s affection for secrets – fumble fingers; my bad].

    But if the ”guilt” of the ”Gutmo-ites” is to be determined within a ”military” conception of ”justice” then that could only make sense if they are to be held to a current US military standard – which seems to mean:

    [1] They shouldn’t have been tortured. [Ooops]
    [2] Most of them should be acquitted.
    [3] The rest should be given some k.p.
    [4] All of them all eligible to apply for recruitment, retraining & deployment.

    Hey – I think I just got it! This is a plan to get some real knowledgeable Arab speaking forces on the ground in Iraq. Smart too: no relatives here to yap about bringing our boys home, and few if any family ties left in the Auld Country to bog down their about-to-be-acquired mercenary zeal.

    You know, maybe we’re all just in a bad dream, and King George is right, that he’ll end up ranked somewhere around Habedashery Harry, way above Warren Harding [well, above Jimmy Carter at least], & each morhing our children’s children’ children will all recite a daily slogan in tribute to him, something like: If it’s a Waterbush, it’s got to be Waterresistant.

  7. watercarrier4diogenes says:

    One of the commenters under TPM Muckraker’s Haynes story seems to think that Haynes is in significant hot water:

    One Haynes memo appears to fall within DoJ OPR review in re potential attorney disbarment referral:

    Anyone know any more about this DoJ OPR review?

    Plus, if you go to the comment, “One Haynes memo” is linked to an older comment of some length that asks some interesting questions.

    • emptywheel says:

      My guess is it refers to the OPR investigation of the bases of torture justification–taken up in response to a Whitehouse and Durbin request.

      Haynes was connected with a Goldsmith draft opinion basically saying people could be taken out of Iraq.

      I don’t think that’s why he resigned. I think the Davis revelations–both the Nation piece, but especially his announcement he’ll testify–are much much more important.

      Yes, Haynes was responsible for asking OLC to formulate a number of opinions. But this one in particular was never actually an opinion (therefore is almost certainly outside the scope of this investigation). And if anyone’s in trouble bc of it, it’d be Goldsmith.

  8. bmaz says:

    Not to mention that there is not a chance in hell that this DOJ/Administration is going to do any such thing as make a bar referral on something like that, nor take any other affirmative action for that matter. It would open the floodgates. No way.

  9. Mary says:

    5/7 and Pat Leahy is directly responsible for locking down the Haynes nomination before some of the worst came to light – he said he felt answers were not truthful. Of course, later it became clear they weren’t models of veracity, but Leahy was tough when tough was nowhere in sight

    So, I missed the details. Does Haynes want to spend more time torturingwith his children?

    16 – Haynes was involved in all kinds of shenanigans to get the DOD’s interrogation procedures memo in place – where, IIRC, JAG were dismayed by the initial draft (involving Mary Walker – tied in with Schmitz who was IG for DOD for a bit) and protested vigorously, thought they would see a redraft, and instead Haynes snuck it out as a final version to the GITMO squad and others. I’d have to look, but I pretty much remember it that way, with the overtones of his testimony to the SJC (that JAG had reviewed and been ok with), a JAG officer having to rectify the record, then the closed door session forcing submission from JAG officers on the MCA. My recollections my be wonky, but I’m thinking something along those lines.

    As to the draft memo authorizing taking protected persons out of Iraq for out of country abusive interrogation in violation of Article 49 – while all that has ever been leaked is a draft of the memo, I didn’t think it had ever been confirmed or denied as to whether or not a final opinion was signed out. When you posted, ” But this one in particular was never actually an opinion ” is that because you are referring to the draft only, or bc of knowledge that the draft was never signed out as final?

    Haynes has his own sign off memo on what he authorized as interrogation tactics.

    For my part, I find something symmetrical in the fact that Taxi to the Dark Side won the Oscar last night. I hope he gets a copy for each of his family members and children so he can brag about his handiwork in his spare time. And in a fair and just world, Mora would get to testify against him at an upcoming trial

    • bmaz says:

      And in a fair and just world, Mora would get to testify against him at an upcoming trial

      Please invite me over when you find said promised land. I bring food and proper bourbon.

      Like, oh, say a charging decision for Rove – would the Spec Pros have to present it, would they present it (did he present it) and could it be quietly stuffed back, no one to be the wiser?

      Aw jeez, just plug the above response into this one too…

    • emptywheel says:

      Referring to the draft only–it was never finalized as a binding opinion. The question was very specifically about whether Haynes could be in trouble bc of the OPR investigation, and I see no way he could be–even the opinion that was most closely connected to him was never made a binding opinion.

      Ergo, I don’t think this is why he resigned.

      And no–he gave no “spend more time with the kid in college” reason.

  10. Mary says:

    13 – Having seen a few military courts martial in action I have to say first that it’s far from fair to suggest that they are kangeroo kourts as a matter of kourse.

    But none you’ve seen would have been operating under the new, improved, lovely lack of rules and standards for the CSRTs and the GITMO tribunals. How often did you watch a court martial where it was acceptable to have the defendant not know the evidence or even, in some instances, the charges, against them? To have secret torture testimony used against them? To have exculpatory information stamped as “classified” and never provided to the counsel, or if given to counsel – to have counsel prohibited from discussing exculpatory info with their client or the court? To have their own client’s statements be “classified” and the treatment afforded to their client “classified” so they cannot discuss what their client said or what was done to them, because the client (who made the statements and underwent the treatments) isn’t cleared for classified info?

    You could probably make a bigger farce with more of a kangaroo court if you tried, but it would take the expenditure of considerable, concentrated effort.

    11/18 I’m really hoping for some answers on what I was always really hoping for answers on – to what extent could the acting AG (first Comey, but then, more importantly, McNulty) override the decisions of the Special Prosecutor. I’d like Fitzgerald’s very express and specific take on that, in general and with respec to his particular situation. Like, oh, say a charging decision for Rove – would the Spec Pros have to present it, would they present it (did he present it) and could it be quietly stuffed back, no one to be the wiser?

    • Jeff says:

      ew will correct me if I’m wrong, but we pretty much know the answers on Fitzgerald. They couldn’t override his decisions, such as charging decisions. They could fire him. That’s it. He had no strict obligation to inform anybody of important decisions like charging decisions. But he did do so. Strictly speaking, no one in the DoJ could stop Fitzgerald, short of firing him. Obviously there are other, informal forms of pressure that could be applied, in principle. But I strongly tend to doubt they played any role.

      In other words, I suspect the decision not to charge Rove was Fitzgerald’s.

      All that said, Fitzgerald did give a funny answer at the news conference in October 2005 when he was asked if there were any other charges under consideration that weren’t returned in an indictment, indicating he wasn’t sure if could say anything about that and would have to ask his press guy. Which surely cannot be true. But I have no idea of what if any significance it is.

      • bmaz says:

        I thought there were a couple of different cues back then that Fitzgerald was still hot to trot on somebody additional to Libby, and the only two I really considered prime were Rove and Cheney himself. One of the cues was in a press conference, I assume what you are referring to (heh, not like there were a whole lot to choose from there) and the other was in a pleading and I can’t for the life of me remember what exactly that was. I really pretty much agree with your take that Fitzgerald called the shots and nothing else particularly played a role. However, I will say this, I have known and been around a ton of prosecutors and criminal cases, over too long of a time, and most all of them would have hit Rove with charges. Just on general principles and to see what would shake loose; and I don’t mean to imply this would be overreaching or anything, the evidence that I am aware of was more than sufficient to charge (with a prosecutor as good as Fitzgerald, I think good enough to convict as well, but we apparently will never know). There is an affirmative defense available for trying to correct GJ testimony in certain circumstances; but I think Rove was well outside of a reasonable application of that and such an assertion would not fly.

        • Jeff says:

          The answer is very simple. General principles simply could not apply to such a singular case.

          But my goodness, Monica Goodling and the founder of Redstate engaged! That is simply too good to be true.

          • bmaz says:

            And as to a singular case. Maybe. Though, on one hand, it speaks to how reserved etc. he was (in spite of being falsely hammered to the contrary); on the other hand, to the best of my evaluation, it would not have been specious in the least to have indicted Rove. Equal protection runs equally to both sides of the adversarial coin. If pretty much any other similarly situated putative defendant would have been indicted under the same circumstances (and I think they would), there is a argument to be made that you degrade the system by giving preference to this one. Now, don’t get me wrong, I am not grousing, just kind of randomly musing. I fully accept and respect Fitzgerald’s decision, and that is what prosecutorial discretion is about. Would have felt equally comfortable with the converse as well.

            • Jeff says:

              This makes perfect sense. All I would say is that it need not be a matter of undue loyalty to the administration that appointed you etc to recognize that if you’re going to indict the top aide to the president of the U.S., you probably want to be even more sure than usual that you’re gonna secure a conviction. And I bet at the end of the day, Fitzgerald looked at it and he wasn’t sure enough. I mean, in a funny way, Fitzgerald was the Haynes of his moment – he needed all convictions, if he was going after only the top guys! – only he made judgments about throwing people in jail before he actually threw them in jail.

            • BayStateLibrul says:

              I too have reluctantly accepted Fitzy’s decision.
              My question is (1) can Fitzy discuss his reasons not to indict
              without jeopardizing the case (I’m assuming the case has not been closed)
              (2) will we ever find out through discovery or is it sealed forever?

              Thanks also to you and freepatriot, and others on the Telco’s payment plan. My Repug neighbor apologized, but he blamed the WSJ for quoting Jello Jay’s patriotic rant.

        • emptywheel says:

          I think the problem–and it was a very big problem–is the witnesses he would have had to rely on: Cooper (a marginally okay witness), Novak (Who would have corrborated Rove but probably would have screwed something up–he’d be the person you shake lose), and Armitage. Once Armitage didn’t reveal the Woodward contact, he was pretty useless as a witness against ROve.

          • bmaz says:

            Again; well, maybe. I don’t know the gritty details and can’t whip them out as well as you and Jeff, not even close, but I think an enterprising prosecutor could make out a case for false statements (maybe perjury too, although a little harder) just off of Rove’s vacillating and substantively morphing statements alone, along with the same fact set adduced at the Libby trial, and using the other witnesses you describe simply to drive the point home if necessary. Now if you are talking about the underlying charges that we all wanted out of Rove, Libby etc., I agreee wholeheartedly; but then he didn’t indict Libby on that either. Like I said to Jeff, I am not second guessing/grousing about his decision, I am satisfied and comfortable with his exercise of his discretion. No worries mate. Could make out the same case win lose or draw on the final verdict, if he had charged Rove too.

    • emptywheel says:

      LOL!!! THat is absolutely hysterical. How does a completely discredited hack get her life back on track?!?!?!? Marry another discredited, but marginally hip, hack.

      • nolo says:

        EW and hmmmm — yours thus
        re-affirming my axiom that,
        for every garbage can, there
        is — somewhere — a lid to fit it. .

        the trick is finding it.

        apparently, search over.

        y i k e s.

      • Hmmm says:

        Yes, that, but plus the just plain aesthetic revulsion: “Dig us, we’re The Whitest People In The History of Ever!”

        (I am informed that as a pale person myself, I have dispensation to utter such parody.)

  11. scribe says:

    Davis will not get to testify at any hearings in Gitmo. This, because:

    (1) DoD won’t give him admission to the island;
    (2) DoD will deem his security clearance to not encompass a “need to know” what goes on in the particular tribunals where he would be asked to testify;
    (3) DoD will order him not to testify;
    (4) the “Judge” will deem his testimony immaterial, inadmissible hearsay, irrelevant, or otherwise not useful to the determination of a fact in issue;
    (5) The “Judge” will decide that, since the offending official (Haynes) is no longer in office, what he said (assuming arguendo what Davis would say is true) is no longer germane to the discussion because Davis is no longer in a position to put his predilictions into effect.

    Or some combination of these.

    You can all get your knickers in a happy twist over this, but it’s not going anywhere for Hamdan’s case.

    • bmaz says:

      Maybe, maybe not. But it would be ineffective assistance and malpractice not to make a record by whatever means necessary. I would submit a sworn affidavit and make a full proffer of live testimony, remote testimony, bilateral deposition with ability for prosecution cross-examination and whatever other vehicle I could conjure up and put it all on the record. If all was refused, I would then make an interlocutory appeal, which normally would not stand much chance of being accepted and heard, but in light of the way these things have been set up vis a vis prior decision of the Supremes, it just might get traction here. Either way, you have to do it and it is substantive enough that it places the government in a compromised position with regard to Haynes. The key is the prior precedent. This little dog and pony show has bigger problems than you are giving it credit for.

  12. Jonathryn says:

    You know, if Rove thinks the CBS report is a lie, he has recourse through the courts to reclaim his honor by bringing a suit of law against 60 Minutes for defamation and libel. In fact, he could do that to anyone whom he thinks has unjustly criticized him. But he won’t, because he might get the wrong judge who won’t help out with discovery and won’t suppress the right evidence.

  13. earlofhuntingdon says:

    Robert Gates’ notions of “serving with distinction” are drawn exclusively from the world of political hackery, not his tenure at the University of Texas.

    To be sure, blithe descriptions of superlative performance are de rigeur inside the beltway – reputation is all its denizens have to trade on – especially when getting rid of a figure who has become a newly hot potato.

    But Gates is describing an Al Capone capo, not a distinguished public servant. Some day, and sooner if he travels abroad, Bill Haynes will be tried for war crimes.

  14. selise says:

    OT – in the HJC hearing this morning conyer’s just announced there would be a discussion of FISA on the house floor tonight (note: this is not on the schedule via the daily leader).

    i do not know the significance of this, just passing along what i just heard.

  15. Mary says:

    22 –
    but we pretty much know the answers on Fitzgerald.

    I don’t think that we do really. I know how strongly everyone jumped on the “he’s got plenary power” bandwagon, but when the principal officer motions and briefs were filed, it became very clear that neither the Judge nor Fitzgerald took the “plenary powers” designation in the same context as the lay context (and if they had, he probably would have lost the principal officer argument).

    For example, there was a finding that he had to follow department regulations. That would ordinarily include the fact that his determination to puruse charges against someone high up the political chain was subject to review and to being overruled. As a matter of fact, that is also the case, spelled out, in the outside Special Counsel regulations (28 CFR 600.7(b))(However, the Attorney
    General may request that the Special Counsel provide an explanation for
    any investigative or prosecutorial step, and may after review conclude
    that the action is so inappropriate or unwarranted under established
    Departmental practices that it should not be pursued).

    There was a lot of back and forth about to what extent Fitzgerald had to follow regulations and there was an interesting, kind of dogged on Fitzgerald’s part, exchange that wasn’t all that related to anything relevant in the Libby case (and so seemed like kind of a waste of the minutest there) – a discussion in the oral argument about this issue of did Fitzgerald “have” to present the charges against Libby to Margolis (since everyone agreed that he did, it was a bit of moot point for him to get so dogged on and it seemed to me this was an exchange he and Walton might have had before in a different context and that Walton didn’t seem persuaded – jmo) So I think we have Fitzgerald’s stated position as Spec Pros as to what he thought, but we don’t have a) the DOJ’s position on the question; b) a public ruling; or c) any specific answer to whether or not he did have anyone at DOJ take a differing position.

    They couldn’t override his decisions, such as charging decisions. They could fire him. That’s it.
    We do know he admitted to more than that vis a vis supervision – that he was required to follow department rules. Ultimately – firing is all you can do to anyone for breaking the rules, but the question was who could MAKE the rules and I think he agreed he didn’t have plenary power to ignore them in his pleadings..

    He had no strict obligation to inform anybody of important decisions like charging decisions. But he did do so.
    We know he did inform Margolis about Libby and that he, pretty oddly IMO, made a point of saying in oral argument that he did not have to inform Margolis even though he did. Walton never needed to and didn’t rule on that as an issue (and since he did what he was then saying he didn’t “have” to do, Walton had nothing to rule on anyway) but I don’t think Walton sounded persuaded and I kind of thought he sounded as if he thought they had been down that route before.

    Strictly speaking, no one in the DoJ could stop Fitzgerald, short of firing him.
    I disagree with that, except in the sense that is all anyone could ever do to a DOJ employee. Anyone having the authority to make the delegation could change the parameters of the delegation at any time (that’s basic agency law – the area of law Walton chided both prosecution and defense for ignoring in their pleadings) and Fitzgerald and the court both agreed that he was bound by Dept rules and regulations – he didn’t have plenary power to ignore them.

    That makes the charging issue interesting, bc under normal rules and the outside spec pros rules, it is clear that the acting AG for a matter can overrule a dept lawyer’s or an outside spec prosec’s charging decisions. So I think that is a very good issue to explore now. And while I don’t think he really ever went down the lane with Rove or anyone else, I like things cleaned up, i-s dotted, t-s crossed, and Congress would be the only chance of getting that. So I’d just like to have someone get the questions out of the way both on the specific front (his investigation) and the general front (what would be the unhindered abilities of an intra-departmental spec pros)

    I don’t really think that Fitzgerald went to battle to try to charge Rove, but I’d like the decks cleared. Did McNulty ever call the delegation back from Margolis; was the delegation ever altered; were any other charging decisions made or presented to Margolis or McNulty; if they had been and there was an objection, what would be the outcome; could the delegator overrule the delegee and charge the delegee with remaining silent, etc.

    I was aggravated when no one asked him those questions before and I’d like to have them cleared up fwiw. I also think that he would almost have to say that the Dept’s formal position on whether or not the AG/acting AG could overrule the decisions of an in-house appointed prosecutor for a special matter, would be different than the position he took with Walton.

  16. bmaz says:

    I don’t know how many of you have seen the excellent John Frankenheimer movie Seven Days In May, or read the even better novel by Fletcher Knebel (Rod Serling did the screen adaption); but by all means do so if you haven’t. At any rate, there is a character, General James Mattoon Scott, played by Burt Lancaster, that has always reminded me of the rapidly bloating character we know as Gen. David Petraeus. Well, the once and future King Petraeus’ career appears on the march, just like was hinted at last year. I am telling you, the Goopers are grooming this guy to take over the country in 2008. They are going to leave the country in as shitty of condition as they can, obstruct and humiliate whoever the Democrats elect for four years, and trot Petraeus in to “save” the country. That is if they don’t try to get him in power through other means as in Seven Days In May.

    • Hmmm says:

      My personal 2008 Festival of Films Relevant to The American Now includes not just Seven Days In May — which, thanks for the reminder, I recently saw for the first time and found just excellent (except for the misogyny) –but also: The Manchurian Candidate (1962), Brazil, and V for Vendetta. What we have before us is an Accountability Moment, of a kind that fiction writers have long considered. We ignore their counsel at our peril.

  17. earlofhuntingdon says:

    Perversely, it is Haynes’ criminal conduct that assures him a hearty welcome from those subsidizing WingNut Welfare programs. A public company seems an unlikely place to give him a home; even a large defense contractor must be planning how to sell itself to an incoming Democratic administration.

    I expect Haynes will be found a partnership at a boutique Gooper lobbying or law firm or “institute”. The better to hide him, make him available in litigation involving not directly involving him, or let him go quietly (w/out an SEC filing or public disclosure) should he be put on the hot seat. His work cannot require him to travel abroad, lest his foreign travel be extended twenty years to life.

  18. AZ Matt says:

    Speaking of above, around and below the Law:

    Renzi refuses ‘cloak of guilt,’ vows to keep seat

    Associated Press
    Feb. 25, 2008 06:05 PM

    ‘U.S. Rep. Rick Renzi said Monday that he will stay in office while he fights corruption charges.

    “I will not resign and take on the cloak of guilt because I am innocent,” Renzi said through his press office in Washington, D.C. He added that his legal team will handle the accusations against him as he continues to serve his constituents.

    You go Rickie Boy, you go!

    • Rayne says:

      Tempting to send him a campaign donation, idn’t?

      Remembering Rove’s “teh math” as outlined in the presentation Scott Jennings gave at GSA offices with Cookies Doan’s blessing, corruption was expected to be a strongly negative factor for certain races.

      The longer Renzi stays, the better the odds for change in AZ. Woohoo, go teh new math!!

  19. Mary says:

    31 – I’m not sure I know what you mean about the Article 49 Goldsmith draft when you say, “Referring to the draft only–” it was not finalized ?

    The article 49 draft memo was a leak, not a produced document and last I was watching, there had not been any answers or productions on the question of whether or not that draft that was leaked was ever signed out. I thought Goldsmith had refused to answer on that, at least once upon a time. Did it get cleared up later, or possibly in his book? With the timing, it could even have been signed out after he left, since I think it came out close in time to when he was leaving. Haynes was on the circulation list for it – I guess if Haynes authorized actions by the military (Priest’s article was focused on CIA activities that supposedly were done in reliance on the memo) based only on a draft memo and on such a serious issue of Geneva Conventions violations, that might could get attention from a normal Prof Resp investigation, but I don’t see anything happening even if that were the case with this admin.

    I could also see where a normal Prof Ethics investigation would be in order would be with respect to Hayne’s testimony before the SJC and his handling of all the JAG opinions sent to Haynes objecting to the interrogation standards he authorized and to the Dec to March gap between him being advised that OLC was taking the position that the Yoo memo shouldn’t be relied upon, and Hayne’s waiting until the formal withdrawal in March before telling JAG that reliance on the earlier memo should be withdrawn and the working group report was ‘no longer’ valid. All the shenanigans with the working group report itself would bear some attention, for that matter, and the manner in which he authorized out interrogation procedures (without much limitation to prevent abuse), plus any input from him on things like use of the military and its facilities for actions like the kidnap of Abu Omar from Italy for torture in Egypt.

    But in the end, despite all the things that should be subject to review, I don’t see anything other than whitewashes coming from any of the lawyers left, who have all so willingly worked for torture and torturers for years now. Hard to call a pot black when you’ve been in the kettle business yourself for years.

  20. Mary says:

    55 – I’m glad to see that change in date, bc I was getting a little nervous. *g* Good to know that’s soot – I was wondering about a different byproduct.

    • bmaz says:

      Heh, all I know is that there is a whole lot of dark matter, and it isn’t a pigmentation issue; may be a combination of the soot and the other.

  21. ticktock says:

    Will somebody clarify this in relation to this thread. Apparently this was passed. (why?):

    Military Commissions Act of 2006


    (a) Counsel and Investigations- Section 1004(b) of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1(b)) is amended–

    (1) by striking `may provide’ and inserting `shall provide’;

    (2) by inserting `or investigation’ after `criminal prosecution’; and

    (3) by inserting `whether before United States courts or agencies, foreign courts or agencies, or international courts or agencies,’ after `described in that subsection’.

    (b) Protection of Personnel- Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution that–

    (1) relates to the detention and interrogation of aliens described in such section;

    (2) is grounded in section 2441(c)(3) of title 18, United States Code; and

    (3) relates to actions occurring between September 11, 2001, and December 30, 2005.


    This Act shall take effect on the date of the enactment of this Act and shall apply retroactively, including–

    (1) to any aspect of the detention, treatment, or trial of any person detained at any time since September 11, 2001; and

    (2) to any claim or cause of action pending on or after the date of the enactment of this Act.


    Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and the subsection (e) added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and inserting the following new subsection (e):

    `(e)(1) Except as provided for in this subsection, and notwithstanding any other law, no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action, including an application for a writ of habeas corpus, pending on or filed after the date of the enactment of the Military Commissions Act of 2006, against the United States or its agents, brought by or on behalf of any alien detained by the United States as an unlawful enemy combatant, relating to any aspect of the alien’s detention, transfer, treatment, or conditions of confinement.

  22. Mary says:

    64 – the legal posturing of OLC and Haynes at DOD had been that the President could, for the military, override the Congressionally set standards of conduct in the Uniform Code of Military Justice because he is Commander in Chief and it was a time of war. Also, that the President could dismiss the standards of the Geneva Conventions, especially common article III, as not applying to ”unlawful enemy combatants” and so authorize the military to treat men, women and children in debased and depraved manners, inconsistent with both the UCMJ and the normal standards of the Geneva Conventions.

    Congress sat on its backside and did nothing.

    The Sup Ct, though, in Hamdan, made the final legal determination that the military does have to follow the UCMJ in a time of war and the President cannot override the UCMJ by fiat and also that common article III of the conventions did apply to EVERYONE being held.

    So Congress, who had sat on its backside (and continues to sit on its backside) through non-stop civilian abuse, dug deep and went to work and made sure that they … gave retroactive immunity for rampant and unchecked depravity that the President authorized, without even investigating who authorized what and the ramifications and actions.

    And then Congress made sure that for future violations, there would be no oversight, no punishments if politicians wanted to block punishment, and no recourse for any victims no matter how foully abused for any reason and for any period of time.

    God Bless them all. I pretty much hate both parties.

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