Politicizing Show Trials at the Same Time as Politicizing DOJ

Marty Lederman links to the important opinion disqualifying General Thomas Hartmann from any involvement in Salim Ahmed Hamdan’s–Osama bin Laden’s driver–military tribunal. (Kudos to Marty Lederman for thwacking the traditional media for touting an opinion’s limited availability–and then not providing a link to that opinion.)

As Marty notes, the opinion does much more than the traditional press coverage of the opinion lets on–though as always, Carol Rosenberg’s coverage of the show trials is quite good. The opinion basically affirms that the Gitmo show trials under Hartmann have been just that–trials driven by political motivations rather than legal evidence. Go read the opinion, written by Judge Keith Allred, for the timeline it offers of Hartmann’s (and others’) attempts to tailor the show trials to political considerations.

I’m particularly interested in the coincidence of timing the opinion reveals. The Bush Administration started crafting its show trials at precisely the same time–fall 2006–when it was engineering the firing of 8 US Attorneys for political reasons.

5. About 28 September of 2006, [Colonel Morris Davis] attended a meeting of the Senior Oversight Group, held in the office of Deputy Secretary of Defense Gordon England. During one of these meetings, Mr. England said "there could be strategic political value in getting some of these cases going before the [November 2006–editorial comment original] elections. We need to think about who could be tried" or words to that effect. The commission takes judicial notice that the Supreme Court issued Hamdan v. Rumsfeld in June 2006 and that the Military Commissions Act was not signed until late October 2006. Consequently, there was no possible way in which any military commission case could be referred, much less brought to trial, before the November 2006 elections.


Colonel Davis viewed [England’s] remark as an opinion, rather than a command. Colonel Davis affirmatively denies that this statement had any effect on any decision he made with respect to Mr. Hamdan’s case.

7. During the same meeting, then-Under Secretary of Defense for Intelligence Mr. Steve Cambone opined that Department of Defense (DoD) attorneys were not sufficiently experienced to handle these cases, and that they needed to get some Department of Justice (DOJ) attorneys involved. Although no DOJ attorney had made an appearance in a military commission hearing before that date, they have since been assigned to military commission trial teams.

Now, this fall 2006 meeting was not the first moment the show trials were conceived as such. After all, Jim Haynes’ famous statement that "We can’t have acquittals. We’ve got to have convictions" occurred in September 2005, when Haynes first interviewed Davis for the job of Chief Prosecutor. And Hartmann didn’t get involved until much later–he started as the Legal Advisor to the trials on July 2, 2007, after which he started calling for "sexy" trials and the use of evidence gained through torture. The bulk of Allred’s opinion focuses on how, by inserting Hartmann into Morris’ chain of command and then reinforcing that chain of command in October 2007, the Administration required Davis to meet Hartmann’s political and legally suspect demands. (Note, much of Allred’s opinion pertaining to Hamdan will have much broader effect over other Gitmo detainees. Allred points out that Hamdan was already charged before Hartmann started mucking things up. For those who weren’t yet–but have since been–charged, this opinion will have much greater consequences because it’ll mean Hartmann’s influence may be more central to the decision to charge. Rosenberg, for example, reminds that Hartmann just signed off on the plan to prosecute Khalid Sheikh Mohammed.)

But I find it instructive that at this meeting in fall 2006, top Administration officials were concerned not about complying with SCOTUS’ ruling in Hamdan, but with a way to gain political advantage from the show trials. Further, I find it mighty interesting that–at precisely the same time as Bush was trying to purge DOJ of the US Attorneys who wouldn’t bring politically sensitive cases on demand–Stephen Cambone was getting DOJ more involved in the Gitmo show trials.

There’s one more very fascinating detail in the opinion. In the explanation why Judge Susan Crawford–the Convening Authority–didn’t need to be removed from the Hamdan case, Allred argues that Crawford had not been given detailed instructions about individual cases. The opinion also notes that Crawford had little interaction with Jim Haynes about the cases. But then it goes on to note that Crawford has had no interactions with two people outside the chain of command that led to problems for Morris Davis.

She has never met Stephen Cambone or had any communications with him. She has never spoken to the Vice President or anyone in his office about military commissions.

Mind you, the sole reference to Cambone in this opinion is the one I noted above–discussing the September 2006 meeting. There are no references to Dick Cheney at all.

Yet for some reason, Allred goes out of his way to note that Crawford (who started more than a month after Cambone resigned) had not been tainted by Cambone, Cheney, or anyone else in Cheney’s office. I find that particularly interesting given the allegation that OVP did some selective leaking (just like they did with Judy Miller) to make sure evidence about a different Gitmo show trial defendant would be released to the public.

87 replies
  1. Hugh says:

    Crawford is a Cheney protegee so I find it doubtful that there has been no communication there. The appearance of Hartmann too on the scene and in her office is unlikely to be coincidental. Hartmann it should be remembered is not career military or steeped in military law. Before he joined this fiasco, he was practising corporate law.

    • emptywheel says:

      It may not matter. What Allred is interested in is whether or not decisions were made pursuant to Hartmann’s clearly politicized decision making.

      The biggest–and one of the most public–decisions he made was how to charge KSM and 5 other HVDs. Those cases are in deep trouble right now, I’d wager.

      And given the timing, Crawford will have touched very little that Hartmann didn’t already nanomanage.

      • Hugh says:

        And given the timing, Crawford will have touched very little that Hartmann didn’t already nanomanage.

        To use a sports analogy, a very dangerous thing on this blog, these guys are all on the same football team and the argument is being made that somehow the quarterback having just called the play didn’t know what the tightend was going to do. I don’t buy it.

        • emptywheel says:

          Oh, I’m not disagreeing with you. I’m just saying that the ref is about to take away all the touchdowns the team scored, whether or not the quarterback knew about it anyway.

          The question here was relatively narrowly tied to the facts in Hamdan, for which most of the decisions got made before Hartmann or Crawford joined the team. Where this stuff will get more interesting is for the cases like KSM’s, where Hartmann made all the decisions. Whether or not Crawford is named, I think KSM’s lawyers will be able to argue that this was orchestrated by Dick Cheney himself.

  2. SmileySam says:

    Waterboard Willie Hayne’s part in this is still barely mentioned in most articles but sooner or later his will be forced to pay the piper. One of the things I have expect more about is JAG Lawyer charged with defending the Child Soldier we have held since he was 15, asking the Canadians to step in. The other is that the Judge has not thrown out the charges because of our Treaties against trying children as Adult Soldiers.

    • skdadl says:

      That last link of EW’s takes us back to the funny business someone pulled with a video of Khadr in Afghanistan, leaked to 60 Minutes after a judge ruled its use out.

      Some Canadians are trying, as is your Navy Lt-Cmdr Bill Kuebler, one of Khadr’s lawyers, whom the Supreme Court of Canada agreed to hear over the objections of the government (”national security”). On Khadr’s behalf, Kuebler wants access to all the documents we got because we sent CSIS to join in the interrogations of Khadr at Guantanamo and then share with American agencies (who claim to have lost theirs, but we have copies). We’re still waiting to hear the SCC’s decision, I think. Ishmael: where are you?

      I am such an amateur at this, but I should try too. EW and others have tracked so much of the sleaze controlling these processes. Canadians have to start demanding that our PM recognize what he is collaborating with, the subversion of the justice system of a democracy, and we could at least push back usefully by getting that kid out. Even better, we could raise our voices about what is going on down at Guantanamo, but this PM is never going to do that.

      • Ishmael says:

        Good morning Skdadl, I’ve been in Vermont lately, where it was very gratifying to speak with many, many Americans of conscience as to the atrocities that are being committed by their government – and see all the anti-war and anti-Bush bumper stickers!

        As to Khadr, no, the SCC has not yet decided, but I am cautiously optimistic – even though our Supreme Court is wary of political controversies, I don’t believe that they will abandon a Canadian citizen completely to the Guantanamo Gulag. As for political pressure, the Parliamentary Subcommittee on International Human Rights has been doing some good work in making up for the lamentable inaction by Canadian governments of both stripes to date on Khadr – Lt. Cdr. Kuebler made an eloquent plea to the Committee on Khadr’s behalf recently, and the Committee plans to hear from other witnesses, including the Minister of Foreign Affairs (if he hasn’t resigned yet when his biker-linked girlfriend is found to have gone through his “briefcase”!), and former Supreme Court Justice and UN High Commissioner for Human Rights Louise Arbour. I think Harper would not be unhappy if the SCC made a disclosure order that would get him off the hook – he could claim that activist judges are thwarting the War on Terror, just as he did when the Supremes ruled against random drug searches with dogs in public places without independent evidence of wrongdoing. Having some experience with the judges on the Supreme Court, I can think of nothing that would piss them off more!

      • Petrocelli says:

        This case should be hung around the necks of the Northern Neocons and sink them in a fall election … I’m not holding my breath with Dion & Co. …

  3. PetePierce says:

    What hasn’t been written about anywhere is that cumulatively speaking, DOJ sent hundreds of advisors to set up the Gitmo show trials aka kangaroo courts who knew that denying evidence and wiretapping defense attorneys, and denying discovery is illegal. They got heady in this make believe world, and extended their metaphor of Beyond Good and Evil to torture memos that left out key on point case law.

    A lot of these advisors operated and continue to operate under the cloke of anonymity (the way Yoo analagously thought his torture memos wouldn’t see the light of day so conveniently excluded the case law that shows up on a routine Westlaw/Lexus search.

    The basic premise of the Gitmo trials fail because they don’t allow an innocent person accused a scintilla of a chance to proove their innocence and hundreds of people are being held without even being charged.

    Lawyers for Guantánamo Inmates Accuse U.S. of Eavesdropping

  4. earlofhuntingdon says:

    Does anyone else find it strange that in the midst of two wars, with

    – unprecedented demands on troop strength and the implementation of forced retention strategies for military personnel and National Guard;
    – barracks falling down around soldiers’ feet at home (even at the vaunted Ft. Bragg) and barracks in war zones so shoddy that soldiers are electrocuted in the shower;
    – large numbers of personnel returning to be treated at decrepit hospitals, where the red-tape has so twisted on itself that brain-damaged soldiers are left to fend for themselves and the dead are being cremated at pet crematoria;
    – emergency and routine sourcing of materiel is slow and fails to meet the needs of the soldiers in the field;
    – the need to coordinate with the unprecedented numbers of unregulated mercenaries and other contract personnel; and
    – the demands of liaising with the Executive and Congress about managing these and every other potential crisis facing our interests and armed forces around the world, and the unprecedented budgets needed to pay for them, that

    the SecDef, his number two, the Deputy SecDef, and so many other top military and civilian staff found the time personally to intervene and direct the trials of a couple of dozen inmates at a single military prison in Guantanamo Bay, Cuba?

    What does that say about “supporting the troops” and placing the political campaign needs of the President over the national interests of the United States?

    • PetePierce says:

      It says that the national interests of the US and focus on protecting the soldiers has never been a focus of this administration or this congress and it never will be. Keeping their asses ensconsed in luxury and their families safe is and will always be.

      • earlofhuntingdon says:

        That high-level focus on Gitmo suggests that even running our two hot wars and the massive Pentagon-cum-intelligence empire are less important than appearing tough – by torturing and being lawless – and less important than emptying the taxpayers’ till before Congress or a new President comes back to watch the store.

    • Petrocelli says:

      It says that every day is “Opposites Day” for this administration … Luntz will go down in history as one of the most contemptible minds of this era …

  5. bigbrother says:

    Torture is a costly commodity for which we will pay dearly. Our CIA has been using it for years. People who want that are enemies of freedom. To much stick not enough carrot.

  6. scribe says:

    A couple notes:
    1. Re McCain in the room on drafting the language in the MCA. Surely some hay can be made from the spectacle of a heroic torture victim and show trial defendant being part of codifying how we go about torturing, and then running for President on a torture platform.

    2. The description of Hartmann’s dealings with the subordinate officers in the prosecution shop as “cruel”, “punishment”, or “maltreatment” is, to someone once in the military, shocking. In any military organization, generals do not have to speak loudly – they are Gods Who Walk The Earth, and what they want, happens. “Maltreatment” has both a specific meaning – maltreatment of subordinates is a specific criminal offence under the UCMJ – and a more general meaning. A drill instructor compelling trainees carrying full packs to march through neck-deep water at the end of an extended (30 or 50 mile) march, whereupon some of the trainees collapse and drown, commits maltreatment. And goes to jail for it.
    Likewise, I have never heard a subordinate officer accuse a senior officer of being “cruel”, either in the legal or the colloquial sense.
    “Punishment” goes on all the time, but the problem with saying a general’s treatment of subordinates is “punishment” is that they did nothing wrong.
    Now, amplify this by remembering that the subordinates Hartmann was dealing with were not just ordinary military – who might be expected to throw around the terms “cruel”, “punishment” or “maltreatment” without understanding their full meaning – but rather were military lawyers. Specifically, they were military prosecutors who made their jobs (when not participating in the Torture Corps) prosecuting the very offenses they were accusing Hartmann of committing.

    3. I have no doubt that Hartmann was appointed on July 2 specifically because Englund and Haynes knew Colonel Davis was going on leave. The old lawyer’s rule of “never let your adversary know when you’re going to be on vacation, because he’ll choose that time to pull some stunt” applies, in spades, here.

    4. Para. 19, the quote “I said we’re going to have cases ready on …” is an order, not a discussion. There’s an old* aphorism in the military – “The decision’s made. Carry it out.” This was the General making clear he was not open to discussion, that his decision had been made and they were to carry it out. In other words, a direct order.

    * At least as old as “Ponte facto, Caesar transit.”

    5. Para. 22, the term in the last sentence “counseled privately” is a term of art. Davis got reamed out. A “Counseling session” is when your superior calls you into his office, has you close the door and stand at attention and then delivers a verbal lashing for whatever it is he is displeased with. “Counseling privately” is pretty much the lowest level – it is merely a verbal tongue lashing behind closed doors. A “written” counseling is like being written up at your work – worse. So, the Convening Authority was telling Colonel Davis he was seriously out of line for complaining (in a way which became public) that he was cut out of the loop when Deadeye Dick and Jennie Millerwise were making a plea deal on the David Hicks case with the Aussie government, so as to try to help keep the “friendly” Aussie PM in office by delivering a terrist on a platter during an election.

    6. Para 23 looks like Hartmann had them doing make-work, but it really seems more likely to have been the kind of thing which would be done in a law office before handing files off from one lawyer to another. It was, in so many words, putting the institutional/legal knowledge about the case on paper, such that anyone could come in, pick up the file, and run with it. I think Hartmann (or his bosses) was preparing to reassign the prosecution shop wholesale and bring in new lawyers more amenable to their approach to trials.
    The following paragraphs, detailing the breakdown of the Hartmann-Davis relationship, merely show how it played out. But while he got rid of Davis, who ran interference for the prosecutors, Hartmann never got around to cleaning out all the ethically-compliant subordinates which, I suppose, was the ultimate goal.

    I find the anti-retribution and similar provisions of the order very interesting, and very troubling. The judge was way pissed.

    • emptywheel says:

      Thanks for that comment, scribe, it adds a lot to the opinion. There’s obviously a back-story to the Britt and Stone testimony–the two officers Allred insisted not be retaliated against, but whose testimony to the Tate Commission he withheld until after Hamdan is over.

      I rather suspect Allred is desperately trying to have a REAL trial–there are things for which Hamdan can be tried, though probably not for lifetime imprisonment–but these guys keep fucking it up (which is about the sentiment Davis reportedly has, as well). But I rather imagine once the Britt and Stone testimony IS released, we’re going to see a whole lot more here.

      Also, WRT Davis’ surgery. Makes you wonder what would have happened had he not come back a week earlier than he had intended to? What would Hartmann have done had he had 25 days to do his thing, rather than 18?

    • masaccio says:

      Scribe is on to something here. The Miami Herald links to the motion filed by the defense. The language cruel and usual punishment, and maltreatment do not appear in the motion. They were put into play either by some other document or testimony, or by Allred himself.

      By the way, the opinion is scanned, but the motion is a straight .pdf document, meaning it can be searched.

        • emptywheel says:

          That’s what I think. Not to mention the reference to Cheney (though Davis has referred to Cheney elsewhere as well).

          Thanks for referring back to the complaint–it’s well worth reading. It makes it clear that Hartmann’s job was to hasten the show trials–witness these comments to Madeleine Brand:

          In a February 22, 2008, interview with National Public Radio’s Madeleine Brand, General Hartmann denied that there was political interference in the commission process. A Twist in the Case Against Bin Laden’s Driver (NPR Feb. 22, 2008) (Appendix I). He compared himself with Colonel Davis: “I’ve been in this job seven months, and as I said, Colonel Davis was able to bring three cases to trial in two years and in seven months—and in the last four months since Colonel Davis has been gone we have moved 10 cases.” Id. He then explained the recent surge in prosecutorial activity: “It’s from me insisting that we move the process.”

          But now the process of replacing him and recharging everyone is going to put these trials well past election day, if not into President Obama’s Administration.

      • scribe says:

        My reading of the opinion indicated to me that the use of the terms “cruel and unusual punishment”, “cruel” treatment, and “maltreatment” came into the motion as describing Hartmann’s conduct toward the subordinate officers in the prosecution office of the Military Commissions.

        In other words, the JAGs were accusing General Hartmann of maltreating them, the JAGs, of treating them cruelly, and of punishing them – not the captives. He was beating up on the lawyers, one concludes to get them to abandon their professionalism and ethical nature to get with the program.

        It is not likely, from what I know of JAGs, that they would lightly make such statements, even in jest. From what I know, they tend (or tended, anyway) to suffer under a little bit of a self-image issue, i.e., in the military they were the whiny, nebbishy lawyers in the middle of a band of he-man officers. To compensate that self-image issue, they often are more militantly military than the combat arms guys. Uniforms always perfect, military courtesy always to the n-th degree, careful speech. Take a look at some of the JAGs (particularly the defense guys) when they appear in public or on TV. They would not be making such statements, as that would be (in their own eyes) construed as whining, unless they were really being pushed beyond all bounds. And, given that Hartmann is a general, that would make it all the more unlikely they’d be making those statements unless they were really being pounded by Hartmann.

        So, I took it the prosecution JAGs were accusing Hartmann of the crime of maltreatment of them. That’s how severe this was.

  7. earlofhuntingdon says:

    I note that Marty Lederman’s excerpt of Saturday’s Times’ story about Hartmann says that the forced recusal of Hartmann may delay six death-penalty prosecutions planned for Gitmo detainees. I gather that Shrub was hoping to pull the switch before he left office, perhaps to remind him what fun it was to be governor of Texas.

    While a state may exact the judicial murder, eg, of those spying during wartime, it has seldom been done in recent history. Most of the world now officially and in fact abhors capital punishment, even for the most heinous crimes.

    If Bush were to convict these six in show trials, then stage secretive, hurry-up executions, he may curry favor with the Hagees of his Base, for whom violent death is a precursor to rapture and the Second Coming (how oddly like a suicide bomber’s fantasies). He would certainly carve out a unique place for himself and Mr. Cheney in American history.

    If a single event could illustrate the decline of American civilization and the rise of a post-American world, that would be it.

    • emptywheel says:

      Right. That’s my point abotu KSM. Everyone whose charging Hartmann was personally involved in will have to be–at a minimum–recharged (and since they may not be able to use torture-derived testimony, those charges may be much less severe).

      Allred did his work to make sure other defense attorneys will have a roadmap to challenge the charges currently pending against their clients.

      • earlofhuntingdon says:

        A single, faulty guilty verdict would not save the fouled structured of the tribunals Mr. Bush has created. They didn’t and still don’t comply with their authorizing statutes or Supreme Court precedent. In view of that, it would be an affirmative obligation to review any guilty verdict, or to throw out all verdicts and start over.

        Rove and his followers will condemn the decisions of the next President regarding all his handling of torture, Gitmo, secret prisons elsewhere, the wars, respect for Congress, a properly drawn FISA statute, etc., no matter what they do. They invent their own “reality” and no longer need facts or real events as the foundation for their political criticism.

        I agree that Bush is doing his best (thankfully, a low standard) to create situations his successor cannot disband or disregard. The more he attempts that, the more his actions are open to question and ought to be challenged. Failing to challenge them would be tantamount to adopting their methods and continuing their wrongs. But to be successful, that challenge needn’t be direct. Congress and the next President can put Mr. Cheney’s face on Mt. Rushmore, if they like, so long as they raze his works and amend his wrongs.

    • SmileySam says:

      The single event has yet to come imho. I understand that the accepted narrative is that no one in this admin. will end up punished, including Bush, but I think the days after Germany , Italy or some other major country bring charges of War Crimes against American will be that event. Dr. Sands, and others have commented about the help they are giving to foreign governments in their investigations.

      Sands was on Bill Moyers PBS program this week and I found this part of the interview, from the transcript, to be very insightful.

      BILL MOYERS:Do you think that people like David Addington and John Yoo and Jim Haynes, and the other lawyers you’ve mentioned who advised and were on the torture team, should ultimately be held responsible in court for what they did in government at this period of time?

      PHILIPPE SANDS:If they were complicit in the commission of a crime, then they should be investigated. And if the facts show that there is a sufficient basis for proceeding to a prosecution, then they should be prosecuted. Lawyers are gatekeepers to legality and constitutionality. If the lawyers become complicit in a common plan to get around the law, to allow abuse, then yes, they should be liable.

      BILL MOYERS:There are people who say, “I don’t want to hear about this.” A lot of Americans say, “I don’t want to hear about this.” It’s like being diagnosed with cancer. You don’t really want to hear the terrible news. You know, this is something that was done in a particular period of intense fear and uncertainty. We had been attacked, 3,000 people killed right here in New York. And I just want the government to take care of it. I don’t want to hear about the cruelty, the torture, the enhanced interrogation techniques. Do you understand why they would say that?

      PHILIPPE SANDS:I do understand that. And here’s what I’d say. I would want the government to take care of it in a way that is going to protect me over the long term. And if understand that using abuse produces pictures of the kind that have appeared at Abu Ghraib, and of the kind that have appeared at Guantanamo and are going to make it more difficult for me to protect the American public, I want to know about that. And if it is indeed the case that those pictures are going to make it more difficult to protect the American public, I want to sort it out, that we remove that obstacle to protecting the American public, and we ensure that it doesn’t happen again in the future, and as necessary, make sure that those who erred in putting in policies that allow that to happen, face appropriate responsibility.

  8. earlofhuntingdon says:

    What should not be lost in the shuffle is that the defendant in this purported “war crimes” trial was a driver for bin Laden. Not his deputy, his chief of operations or his top field agent. Not his money-launderer or logistical master-mind. His chauffeur.

    What next for the Gitmo trials? Bin Laden’s cook, because he fed our enemy and kept him alive; his personal spiritual adviser, because he energized his violent spirit?

    In isolated examples, Mr. Bush’s petulance, his irrationality and lack of proportion, and his desire to condemn his enemies, no matter how small a part they played, to death or life in prison is alarmingly like Joe Stalin’s. How many more days before brush clearing becomes his full-time occupation?

  9. scribe says:

    The normal ”rule” of thumb when people are on convalescent leave is that they don’t get f*cked with. If, as in Davis’ case, the subordinate is calling him at home nightly to keep him up to date on what’s going on, then the only logically sustainable conclusion is that Hartmann was bringing a serious power play to take over and re-form the office, such that Davis would come back and find it unrecognizable on his return. This is a long way of saying that Hartmann would have achieved pretty much the same result as to the composition of the office sooner, but there may never have been any way of undoing it as there was here.

    As to the Britt and Stone testimony, I’ll bet they find a way to declare it CUI (Controlled Unclassified Information) and keep it from release. Go read the diary on Bushie’s new classification reform, over at Kos. http://www.dailykos.com/storyo…..239/513364

    I remember, from my military days, a command influence case in which the CG said to a meeting of commanders ”if you’re going to go to the trouble of court-martialing a soldier, don’t then go and testify that he’s a good soldier and/or can be one again”, or words to that effect. I think the CG’s statement was likely intended to tell subordinates to exercise their judgment such that they only charged for court-martial the irredeemable. Maybe. He was, at best, unclear. After a couple years’ litigation in one of the court-martials, the appellate court decided that, indeed, it was unlawful command influence and threw out the case. The general was on a plane to DC the next day, and in a new job the day after that. I think that pretty much was a high-water mark for what could constitute unlawful command influence, as I did not see that case cited in the briefs or the opinion. What Haynes (remember – he was supposed to be a Judge for life on the Fourth Circuit!) and Englund were trying to pull for Deadeye was far more egregious.

  10. scribe says:

    No – what Bush and Cheney were trying to accomplish was to put the system in place with at least one ”guilty” verdict, such that their successor could not toss the system without getting pilloried for letting the guilty go.
    Then, their Torture edifice would stay in place. That was the point.

  11. Lindy says:

    I googled LCDR Stone and LCDR Britt and can’t find anything on these two. I remember one JAG officer who was forced to take retirement over Hamdan, but can’t remember his name. Was one of these two that officer?

  12. earlofhuntingdon says:

    Allred’s opinion may formally have no precedential value for other trials, but it is a public rebuke to the Pentagon political appointees who have abusively mishandled these tribunals since their inception. It seems unlikely it would have occurred were Haynes, an acolyte of Addington and Cheney, still in power.

    I see the ruling as a crocus budding in early spring. Let’s see what it portends for a return to rational assessments of risk and apolitical prosecutions of those whose actions pose an unacceptably high risk to our interests, and a movement away from imprisoning or prosecuting those whose lives serve as stage props for the domestic political ambitions of inept politicians.

  13. earlofhuntingdon says:

    No surprise, I suppose, that Haynes wanted to insert DOJ attorneys into a military tribunal process when the DOJ’s politicization was nearing its height.

    DOJ lawyers would have been unfamiliar with the rules and procedures applicable to military trials, about which JAG lawyers are specialists. Both would have been struggling with the lack of adequate legal infrastructure in place for these ad hoc proceedings. So there would have been no “heightened expertise” brought to bear. Only heightened politicization and the formalized intrusion of Gonzales’ DOJ into routine trial matters, bolstering the politicization coming from the DoD’s Haynes and Hartmann.

    A full court press, so to speak, to subvert the professionalism and respect for the law in the JAG Corps.

    • emptywheel says:

      That was what I was suspecting. Though note–it was Cambone who involved the DOJ lawyers, not Haynes. Cambone who set up much of the extra-legal stuff DOD now does.

      • earlofhuntingdon says:

        Thanks for the correction about it being Cambone’s instigation to involve DOJ attorneys, not Haynes. It’s odd that Cambone would have had any role at all in Gitmo trials. He was then Under Secretary of Defense for Intelligence, a newly created position as the DoD’s czar over all its intelligence activities.

        His qualification appears to have been his loyalty to Rumsfeld, a conclusion supported by his decision to send Gen. Miller from Gitmo to Iraq. Presumably, that was based on his belief that torture would yield actionable intelligence rather than spread terror of the US occupier. The “stupidest fucking guy on the face of the earth,” would seem to be an award open to several of Rumsfeld’s top appointees.


        But the role for Cambone does seems typical of Cheney’s shadow government, having people do things unrelated to or at odds with their formal authority. It’s effective in blindsiding professional bureaucrats, who have no built-in work or peer relationships with these new actors who suddenly appear and make decisions over their work, and who report to more senior people equally outside their normal chain of command. It’s a one-sided arrangement suitable for subverting existing authority and supplanting it with something unknown except to those at the top.

        • fahrender says:

          the mind-boggling thing about that link was that Cambone controlled EIGHTY-FIVE PERCENT of the Intelligence budget !!!!!!
          put his name on the Don’t Ever Forget list. he will be back, just like Elliot Abrams came back, just like Rumsfeld and Cheney came back. keep the oak stakes and the silver hammers at the ready ……

  14. whitewidow says:

    Although no DOJ attorney had made an appearance in a military commission hearing before that date, they have since been assigned to military commission trial teams.

    Which DOJ attorneys were assigned to military commission trial teams?

    OT, but probably of interest here, smintheus has an excellent front page analysis in orange about the new rules for “sensitive but unclassified” information.

  15. masaccio says:

    One really aggravating part of the opinion is that twice Allred refers to the cruel and unusual punishment and the cruelty and maltreatment that General Hartmann inflicted on the prosecutors. Findings of fact, para. 15; 4g of the legal findings on the motion to disqualify the Legal Advisor.

    On the other hand, he refers to the statutory and case law which requires that the judge in these ludicrous proceedings “avoid[…] even the appearance of evil in his courtroom and establish[…] the confidence of the general public in the fairness of the [proceedings].” This language is from a decision about a court-martial, but Allred says that such cases, while not binding, are good guidance for interpreting the MCA and proceedings under it.

    • Ishmael says:

      Regarding “cruel and unusual punishment”, there has been something really bothering me since Justice Scalia was on 60 Minutes, and asserted that torture did not violate the 8th Amendment, because resorting to physical force to compel and further an interrogation was not “punishment”….

      Justice Scalia, have a hot dog with me, I want to talk…

      Leaving aside the due process provisions of the 5th Amendment, how can a Justice of the SCOTUS make such a sophistic distinction? If “punishment” in the constitutional sense does not include the infliction of pain for refusal to comply with an (unlawful?) interrogation, then he seem to be suggesting that “punishment” is reserved only to the measures meted out by a court or corrections or police authority after due process for the enforcement of a law by an amalgam of specific and general deterrence. If this is so, does this not insulate all extra-legal, exta-judicial and extra-statutory treatment from the oversight of the courts? Or perhaps this was the point of Scalia’s parsing? To get around the finding of the majority in Hope v. Pelzer (2002) that Alabama’s use of the hitching post in prisons violated the Eighth Amendment prohibition on cruel and unusual punishment, finding that the “unnecessary and wanton infliction of pain constitutes cruel and unusual punishment,” and “among unnecessary and wanton inflictions of pain are those that are totally without penological justification.”

      • gannonguckert says:

        Scalia’s position re “cruel and unusual” only applying after conviction is actually a pretty old and accepted argument.

        The protections re abusive interrogation etc are best-based in the 4th amend’s prohib against unreasonable search and seizure of a person, with some help from 5th amend due process coloring.

        That’s my understanding anyway; maybe some commenters here can opine.

        • Ishmael says:

          Given the express application of the 8th amendment to prison situations by the SCOTUS, which even Scalia has acknowledged, where there has not necessarily been a determination of guilt or innocence (expressly acknowledged in the 8th itself by the reference to bail), I respectfully disagree that the punishment prohibitions only apply post-conviction. Although I agree with you that the 8th and the 5th work concurrently in such situations – the problem with torture while in custody is that it by definition works outside of the 5th due process protections, and proceeds directly to the abusive treatment, which is why I am loath to abandon any treatment of torture to the 5th. But IANA American L, so I welcome other perspectives.

  16. earlofhuntingdon says:

    We haven’t discussed how sweeping is Bush’s new secrecy policy, released Friday, to deal with swathes of policies (not simply facts, language or reports) as his Controlled Unclassified Information directive.

    It’s like taking Cheney, converting him to a virus, and infecting all of government with him. Man-sized or Bush-sized safes will proliferate across taxpayer-funded bureaucracies that no longer want to tell taxpayers what they do with their money or on their behalf.

    • bmaz says:

      Quite frankly, I don’t know that the new directive will create new swaths of secrecy so much as just give them putative cover for what they have already been doing and give them the authority to make it systemic even to those honest civil servants that would otherwise be inclined to demur.

    • JoFish says:

      It’s like taking Cheney, converting him to a virus, and infecting all of government with him. Man-sized or Bush-sized safes will proliferate across taxpayer-funded bureaucracies that no longer want to tell taxpayers what they do with their money or on their behalf.

      But But But…the islamofacists hate our freedoms.

      Apparently so do George and Dick.

      “If this were a dictatorship, it’d be a heck of a lot easier, just so long as I’m the dictator.”

      See CNN transcript from 12/18/2000

    • Nell says:

      earlofh or bmaz: Could you provide a link to any information or reporting about the new Bush secrecy directive? I couldn’t find anything on Google news.

  17. Mary says:

    17 – IIRC, being a cook for the Taliban IS the background for detention for one of the GITMO detainees.
    From Post:
    Yet for some reason, Allred goes out of his way to note that Crawford (who started more than a month after Cambone resigned) had not been tainted by Cambone, Cheney, or anyone else in Cheney’s office.

    I haven’t read the opinion, but I would think the efforts to insulate Crawford have to do with her direct role in the Hicks fiasco – wherein it much appears that Cheney and Howard cut a deal and Crawford implement it.


    “One of our staffers was present when Vice-President Cheney interfered directly to get Hicks’ plea bargain deal,” the unnamed officer told today’s edition of Harper’s magazine.

    “I kept thinking: this is the sort of thing that used to go on behind the Iron Curtain, not in America.

    “And then it struck me how much this entire process had disintegrated into a political charade.

    That kind of thing would make them a little sensitive to putting on the records that Suzie and Dickie weren’t playing those kinds of footsies on other cases. But on the record isn’t the same as being the truth, is it? There are no degrees of separation – socially, politically or ideologically between Cheney and Crawford and its laughable to pretend that, after she made the Hicks handoff, there is some ivory tower established around her.

    Jim Haynes’ famous statement that “We can’t have acquittals. We’ve got to have convictions” occurred in September 2005…

    God bles Pat Leahy. Despite the best efforts of Bush, Cheney, Addington, Goldmsith, Comey, Philbin and Thompson, we don’t have Haynes as a lifetime sitting Circuit Court judge and Leahy made that happen. Even Lindsey Graham, for all his many faheults, showed himself to be a more worthwhile person than any of those ex-DOJ Haynes accolytes.

    I don’t really think there will be any “big ships change course slowly” new direction because of Hartmann though. The farce of the “clean teams” re-virginizing the rape victims has become acccepted without a blink.
    They’ll cut out a few of the more-worser personas and then just plug away, forever enshrining in our legal jurisprudence this concept of the acceptablity of engaging in human trafficking, years of black hole hidden depravity, and then a quick pee on the patent leather to shine it up for show trials.

    And back at home, DOJ has worked away in all kinds of cases, from Salah to Padilla, making this kind of kidnap, torture, coercion and *testimony* by black hooded “interrogators” after first destroying, stamping secret and mistranslating anything exculpatory or embarrassing – acceptable in domestic courts as well.

    Remember all the Pilate like disclaimers by Comey and others that they would never try to prosecute Padilla in a criminal court? How’d that turn out?

    • skdadl says:

      The Hicks/Howard manoeuvre didn’t work, though, did it? Thanks for these references, to you and to scribe @ 12. I didn’t know that Cheney had organized that deal for his friend Mr Howard. Heh.

      • scribe says:

        There was a lot of reporting to that effect at the time the deal went through.

        Not that it helped.

  18. JoFish says:

    1. Re McCain in the room on drafting the language in the MCA. Surely some hay can be made from the spectacle of a heroic torture victim and show trial defendant being part of codifying how we go about torturing, and then running for President on a torture platform.

    I think very much hay can be made from that one single fact. He’s (like every republican and many many democrats) been pandering to the bedwetting element in our society who neither understand nor care about the damage the 1600 Crew have done to our Republic.

    Being able to show he panders not only to lobbyists but is so morally mercurial with respect to the very liberties he “swore” to uphold will be huge if played right in the fall.

  19. watercarrier4diogenes says:

    For EW’s typo-hating self:

    reinforcing that chain of commend in October 2007,

    though sometimes I think it works that way in W’s tick-infested world.

  20. TJColatrella says:

    If you don’t focus on or even mention the infestation of our Justice Dept. by the insidious usurper Tory swine, that are the Federalist Society then you don’t know the half of it, or what’s really gone on for the last dreadful 7 1/2 years..or what’s yet to come..!

    The fact is that our Supreme Court is now in reality..
    The Federalist Society Court…no longer Our Supreme Court, so it’s similar to a pincer action on the battlefield so as to cut off access to the Constitution and it’s protections as intended by our Founder’s..

    The Justice Dept. at one edge or side and this pernicious band of “false hearted judges”, “blackards” such as Scalia and Alito et al..and then The Justice Dept. becoming daily ever more of an oxymoron if they ever were one, which is overrun with Federalist Society “Bork clones..”

    Then you must also realize that all these other Federal Judgeships are filled and being filled by members of this dangerous cabal The Federalist Society..so this disease has spread like a growing cancer through out our system in ever state and every Federal district..

    All that’s at risk is Our Republic as designed and it’s inarguable intent to protect and preserve the rights of the Individual from the “Eternal abuses of government” all government due to human nature itself..

    These along with other Federalist Society “Bork” clone storm troopers such as John Yoo and David Addington seek to undo the American Revolution itself..it’s the Empire Strikes back or revenge of The Tory Traitors that’s what the Unitary Scumbaggery Doctrine is all about..Empirical Domination of America and much of North America and elsewhere..

    Between the corrupted Justice Dept. and The Federalist Society Court and the Unitary Decrees of G.W. Bush authored largely by Addington and John Yoo such as NSPD-51 and HSPD-20, Executive Order 14348, the Warner Defense Act and other dangerous largely treasonous decrees all the pieces are in place for the final blow that will forever kill the greatest dream man has ever dared to dream..and The Bilderberger Group is directing and manipulating much of this as well having destroyed and compromised our banking and the fourth estate..which is all but totally corrupted..

    Things will happen quickly in the final stages and evisceration of our Republic such as it is and the Constitution will truly finally be only a piece of paper…

    Remember Thomas Jefferson said: “Ours is not a system based upon trust but one of suspicion..!”

    That is why they created the separation of powers and the three equal branches of government due to this suspicion..yet our Congress voted away it’s rights and responsibility and when “Sammy boy” Alito said he favored “The Unitary Executive” in other words dictatorship, they voted for him to create The Federalist Society majority on what was once our Court..and final arbiter of our once inalienable rights..was this intentional treason by those of the Judiciary Committee and Senate or just stupidity..?

    Ok Happy Mother’s Day..

  21. JayBur says:

    I cannot remember the last time the ol’ Lake had such informed commentary. I’m impressed, but I have just two questions, will Cheney and Bush ever go to jail? Do we have an extradition treaty with Paraquay?

  22. JohnLopresti says:

    Beginning with the year 2006-2007 and the part of the title of the post addressing politicizing DoJ, I happened upon the dual interviewee hearing, earlier, in spring 2005, for Alice Fisher and Rachel Brand. The Office of Legal Policy, where Brand worked until summer 2007, seemed a likely place to look for administration hothousing the showtrial concept, yet, what Brand seems to have done related to initiatives like the US attorney purge, and defending the Patriot Act by hosting a liveblog once from the WhiteHouse, co-writing a nonfactual letter defending the pristine processes employed for early NSLletters, and shepherding the nominations of ScotUSJusticeNominees Roberts and Alito, as well as, evidently, that of Miers. Brand was one of the inside loyalists with a few perfect credentials, some as Leahy chided, token, so I take my research in this narrow department’s involvement as OT, perhaps, though the OLP might remain a Department Of Interest in elucidating the genesis of the concept of showTrials. I wonder if KRove during his tenure relied on places like OLP to develop publicity for Rumsfeld’s and others’ initiatives to devise a workable kangarooCourt. Speaking of which animist metaphor from downUnder, Hicks’ postJail gag order was to have ended April 1, 2008.

    • watercarrier4diogenes says:

      Hicks’ postJail gag order was to have ended April 1, 2008.

      It appears Hicks is frustrated that he won’t be able to make any money from telling his story under current Australian law, so is exploring with his attorney how to address that in Australian courts. This from a March 31 story:

      Hicks could challenge conviction: lawyer

  23. JThomason says:

    Just how easy was it for Dell’Orto to lie about the position of Sen. Graham and the JAG of the Air Force concerning sign off on removing prosecutorial discretion by assigning commission prosecutors to a specified chain of command that condoned the presentation of evidence obtained by torture? See paragraphs 29 & 30.

    Cynicism can not do this this kind of dishonor justice. Are we numbed by the familiarity with these kinds of lying manipulations by this administration? As has been said it second nature I suppose for the access media to bury the details.

    • scribe says:

      Never could quite figure out why Lindsay Graham and his opinion would have any relevance to a DoD official telling a subordinate officer to carry out something.

      The only reason I can come up with, off the top of my head, is that the DoD official wanted to make clear to the subordinate officer that his career prospects for further promotions would be damaged if he went against the order, insofar as military officer promotion lists have to be approved by the Senate just like any other presidential appointment, i.e., advise and consent. The obvious implication being that pissing off a Senator would result in your name being the subject of a hold, excised from future promotion lists, the results of promotion boards to the contrary notwithstanding.

      And, FWIW, IIRC, promotions from colonel (or Navy captain) to brigadier general (or Navy one-star rank) go thru the Senate individually – no lists of names.

      Betcha didn’t know that “advise and consent” applied to officer promotions, didya?

      And, I’d bet that if one looked somewhere deeply enough, that sort of hold/excision was applied to Lt. Commander Swift, when he came up for promotion and was denied it, resulting in his being cashiered weeks after he’d won the Hamdan case in the Supreme Court. DoD getting Lindsay Graham to do their officer promotions would give Cambone, Rummy, Haynes and the rest plausible deniability about political retaliation against JAGs who displeased them.

      • Minnesotachuck says:

        You’re probably aware of this but just in case not, Graham has been an Air Force Reserve JAG officer for many years and the Bush-Cheney administration has used him for that reason to carry their polluted water on JAG-related issues. Initially there was some indication he might push back on this stuff but that hope died quickly.

    • readerOfTeaLeaves says:

      PetePierce, I really have to hand it to you for this one. What a catch (!)

      After reading Allred’s decision, and having checked out “Cambone” at wikipedia, reading Levin’s letter — written in response to Chertoff’s Senate hearing to be head of Homeland Security — is incredible. I had forgotten that (at least some in) the US Senate evidently learned about Abu Gharib from press reports because the Admin was ‘classifying’ all the info.

      Most relevant for this thread:

      FBI employees’ responses to the FBI Inspection Division’s request relating to Guantanamo indicate that FBI personnel repeatedly raised concerns regarding DoD interrogation techniques, including with DoD commanders at Guantanamo from late 2002 into mid-2003. One email, dated May 10, 2004, describes how FBI officials raised their concerns…the FBI officials were told, “DoD has their marching orders from the Sec Def [Secretary of Defense].”** The agent adds, “Although the two [agencies’] techniques differed drastically, both Generals believed they had a job to accomplish.”

      … December 9, 2002… The FBI agent concludes by promising to bring back to Headquarters a copy of the military’s Interview Plan for an unnamed detainee, saying, “You won’t believe it!”

      … FBI officials had many objections to DoD interrogation techniques. In his confirmation hearing, Judge Chertoff suggested that FBI and DOD differences regarding interrogation techniques at Guantanamo might have related to whether Miranda warnings were provided. But that was not the case. FBI agents had official guidance not to provide to detainees at Guantanamo. The differences between the two agencies’ methods were different than that and went much deeper.

      The FBI is certainly looking like ‘white hats’ in that riveting letter of Levin’s.

      ** Cambone was evidently Rumsfeld’s ‘heavy’ at DoD, and someone earlier on this thread says he had 85% control of the DoD intel budget…? He brought DoJ Crim Div attys to DoD to politicize the ‘terrorist trials’.
      Chertoff was DoJ Head of Criminal Division (under Ashcroft) Aug 2001- June 2003.
      Alice Fisher reported to Chertoff, and later replaced him as Head of Crim. Div affairs. She resigned unexpectedly last week.

  24. rkilowatt says:

    Abt 1948 I watched 10-15 min. of film taken on the 1st day of entry into a concentration camp in IIRC Poland [in a N.J. public-school classroom of 11-yr olds]. Abt 2 years later the Nazi methods were compared to the Spanish Inquisition and someone asked “What does the Constitution say about forced confessions?” like The Rack, etc. The teacher replied that such was handled by the Bill of Rights and, most pertinently, the 5th Amendment. “Good”, I thought, “can’t happen here.”

    But I didn’t know yet how “clever strokes” are used by sociopaths to subvert justice and decency.

  25. kspena says:

    OT or maybe not–There’s an article by Andy Worthington at Antiwar.com that details what US is doing with five prisoners ‘released’ from Gito to go back to Afganistan.

    As Mohammed Afzal Mullahkeil, a lawyer for the returned Afghan prisoners explained, “When they were sent from Guantánamo, they were told, ‘You are innocent and you will be free once you’re in your country.’ When they got to Bagram, they just brought them to Block D and said they should have a second trial.”

  26. klynn says:

    An article from this past January we may all recall…

    FBI Documented Possible Gitmo Mistreatment

    The records were gathered as part of an internal FBI survey in 2004 and are not part of a criminal investigation.


    The agency asked 493 employees whether they witnessed aggressive treatment that was not consistent with the FBI’s policies. The bureau received 26 positive responses, including some from agents who were troubled by what they saw.


    In one report, an agent said he saw a detainee draped in an Israeli flag in a room with loud music and strobe lights. A note on the report said the Israeli flag “may be over the top but not abusive.” The words “may be” were then crossed out and replaced with “is.”


    Carpenter, the Pentagon spokesman, said the Guantanamo detainees “include some of the world’s most vicious terrorist operatives.”

    “The Department of Defense policy is clear,” Carpenter said. “We treat detainees humanely. The United States operates safe, humane and professional detention operations for enemy combatants who are providing valuable information in the war on terror.”

    The FBI reports do not say whether any laws were broken. They said nothing employees observed rose to the level of abuse seen at the Abu Ghraib prison in Iraq.

    FBI spokesman Richard J. Kolko said all the information in the reports was passed on to the Pentagon’s inspector general.

    A federal judge is considering whether to allow the ACLU’s lawsuit against Rumsfeld to go forward. Government officials are normally shielded from personal lawsuits related to their jobs.

    Anyway, I can think of one fired USAG who was a JAG who could make the connection you have made EW. He even mentioned in a recent interview regarding his book that a DOJ Storm was coming… (book to be released June 2, 2208/ Early release event May 18th).

    (my bold)

    • MarieRoget says:

      Anyway, I can think of one fired USAG who was a JAG who could make the connection you have made EW. He even mentioned in a recent interview regarding his book that a DOJ Storm was coming… (book to be released June 2, 2208/ Early release event May 18th).

      Very much looking forward to the Iglesias’ book release, as I did to John McKay’s piece in the Seattle U Law Review, & the forum on that campus last May w/Igelsias, McKay, & Paul Charlton fleshing out their perspectives on the firings.

      AND, when the hell is Glenn Fine’s report going to see the light of day- this summer, this fall? Later?

      • klynn says:

        I’m looking forward to his book too, as long as I can type that release date correctly…June 2, 2008.

        AND, when the hell is Glenn Fine’s report going to see the light of day- this summer, this fall? Later?

        Good question. When I read the McClatchy article in April on the delay, I found this interesting:

        Fine said the Pentagon now appears to be moving on his request.

        “My sense is they are working hard on it now, and I believe we’re going to reach a resolution one way or another in the not-too-distant future,” he said.

        The Defense Department didn’t immediately respond to questions about the delay.

        Fine’s comments are a rare critique of a government agency’s handling of one of his inquiries. His office has conducted a series of probes of the administration’s anti-terrorism tactics, but since he took office, Fine has taken pains to appear impartial and never speaks publicly about the contents of a report before its release



  27. freepatriot says:

    jus wanted to say HIGH before I go to work …

    does anybody realize the power of the image of a kangaroo holding a weighted scale would have in this situation

    it could become the historic symbol of gitmo and george bush

    artists, start your drawings …

  28. klynn says:


    Now I’m getting confused…

    Jeffrey Taylor assembled the Bloch related Grand Jury (Mr. Taylor served as majority counsel on the Senate Judiciary Committee where he advised Chairman Orrin Hatch and drafted provisions of the USA PATRIOT Act.)


    A grand jury looking into the allegations against Bloch, assembled by U.S. Attorney for the District of Columbia Jeffrey Taylor, approved the May 6 raid and subpoenaed about 20 members of Bloch’s staff to testify.



    The man handling the OSC inquiry has an unusual background for a federal prosecutor: NPR has learned that James Mitzelfeld is the man who signed off on the subpoenas.

    Mitzelfeld signed the subpoenas?

    Reading about Taylor made my heart sink…

  29. scribe says:

    Here’s a good post on this opinion and its implications over on SCOTUSBlog, which, BTW, has done yeoman work on the DC Circuit and Supreme Court aspects of these cases since their respective beginnings.

    And, Minnesotacuck @77 – I was aware for a long time about Graham’s anomalous status as both a military officer (specifically an AF judge) and a Senator. Indeed, a case could be made that he is violating federal law and/or military regulations by being both. There exists a statute (I cannot find it quickly, but have read it) and each service enacts regulations implementing it, which state (in so many words) that any officer who is sworn in to be a member of Congress shall (the mandatory “shall”) resign their commission. It’s a separation of powers issue. During Vietnam there was some litigation over this, against (among others) Goldwater (who was an Air Force reserve one-star General), the allegation being that the Congress-critters who were also holding commissions were beholden to the Executive such that they could not be holding both offices at the same time, but IIRC those cases were dismissed for lack of standing.
    The same kind of issue arose during the first Gulf War, when a federal judge (who also was a reserve JAG) was called up for duty and left the bench to go play soldier for a while, but came back about 2 weeks later having (IIRC) resigned his military commission rather than give up his lifetime judgeship.
    Graham’s been in the thugs’ pocket (if not actively one of them) for a long time; there are rumors his personal life has made keeping him there easy.

    • readerOfTeaLeaves says:

      Yes, between he and Larry Craig, the GOP continues to control people through fear:

      there are rumors his personal life has made keeping him there easy.

      Sexual orientation should have zero influence on job performance.
      The GOP reveals its dark side by ‘keeping people in line’ through fear of exposure. Archaic.

  30. Mary says:

    70 – I missed that – thanks. I’m not sure how many times Fitzgerald and the Court can flat out say that his delegation was always subject to being rescinded or modified at any time and at the will and whim of the Acting Attorney General, and that the Acting Attorney General had continuing ability to revise the authority granted (even in secret, like a pixie dust EO revisions) and that the authority delegated “for the purpose of promoting the perception of independence” was “at all time subject to revocation and modification” before someone clears the decks and asks if it ever WAS modified or rescinded, in whole or in part.

    It’s interesting, too, that he makes the point of claiming he was nired to make reports to the Acting Atty Gen, since I’m not sure that was truly decided at any point and Walton seemed a little doubtful on that point in the oral argument, but pretty much dismissed it as irrelevant since Fitzgerald HAD reported to Margolis prior to charges going in against Libby. I’ve always wondered why he made such a point of it in the oral argument, with limited time, and now here he brings it up again.

    Both of those things are probably nothing, but I hate not having the i’s dotted and t’s crossed. When he then goes on, yet again, to discuss his authority in terms of “perception” of independence and not acutal independence, then on p. 4 says:

    “While these provisions … subject a Special Counsel … to greater ongoing supervision than I was subject to … it must be remembered that it was the Acting Attorney General’s stated intent that the terms of the delegation to me maximize the perception of independent decision making. That said, the terms of the delegation to me as Special Counsel … allowed the delegation to be revoked or modified at will, including by requiring reports or consultations”

    I have to admit, I go back to what I was raising back at the end of the trial with wondering if his delegation did get modified.

    Fitzgerald also, in his otherwise pretty thorough treatment of the differences with outside Special Counsel (and in a response that had to be cleared by DOJ I would guess) also leaves out completely the requirements in the outside special counsel regs that, while the AG can overrule spec counsel decisions, the AG must report to Congress about the instances where special counsel is overruled. And so he never really says whether or not, if the AG modified the inhouse delegation so as to overrule an inhouse special counsel, there is any notice to Congress requirement.

    Interesting stuff and a lot of it going towards the theme of ‘trust the DOJ it will do the right thing’ which I have to admit, I take with a lot of skepticism, given the unmitigated and unstinting advocacy for disappearing and torture the uncharged, bought and not taken on a battlefield, and the family members oand children of the uncharged as well.

    Rove lied over and over, Fitzgerald came across reams of email issues about which nothing was done for years and is still not going to be done, and so it all goes on. I think he did a lot with what he had, but the problems of inhousing an investigation were there at the beginning and still there at the end.

  31. PetePierce says:

    I should have added from a TPM commenter,
    Blue in Texas, several Daily Kos diaries are mining a link between Scott Bloch and Don Siegelman’s prosecution.

    I also should add with all due respect to Michigan that John Conyers and his subpoenas which never go anywhere, are becoming a characture of themselves. They don’t mean jack when they are launched at government or former government officials who seem to have implied immunity from them. They only have impact when they are directed at Little Joe and Kathy Schmoe Nobody.

  32. JohnLopresti says:

    H2Ocarrier4D, I started reading that link you provided to the CBS report on Gitmo inhumane treatment. Also, following some comments about the Australian set free, there is one new discussion of how the recent Allred ruling’s divulgations would strengthen a human rights violation case if the exprisoner ever decides to bring a complaint on that approach. TheAustralian news site has a lot of material on the exprisoner, including evidently some fervid diaries that might bolster an argument that he had joined the movement which is anathema to US polity, and perhaps inimical to it as well, but also, surprisingly, TheAustralian published around the same time as the CBS linked report, a chronicle by Hicks of some explicit torture incidents which occurred to him and other ‘executive detainees’ at Gitmo; the document by Hicks is extensive, and more explicit than any writing I have seen on the topic, though there is a photographic website in Southeast Asia that has the AbuGhraib images. Also, since this is on the abuse instead of the thread basic topic of the facilitating overlay of political theater which enabled torture, it is probably worth adding a link here to Conyers’ pointwise but abbreviated summary of the Phillipe Sands’ testimony last week. Wrapping up, for those who key to the jargon of the law trade and are familiar with mens rea, there is this abbreviated presentation by the Marjorie Cohn in a hearing last week addressing the issue of jus cogens, which is a way of saying the torture memos authors were too smart to be able to say now credibly they were unaware of the vast body of law and treaties banning the abuse programs whose formulating papers they developed.

    • watercarrier4diogenes says:

      Many thanks for all the links, John. Fantastic ROI for my humble investment. 8^)

      yours, wc4d (which I prefer to ‘wc’, for obvious reasons *g* )

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