HJC Testimony: Mr. Unitary Executive and Mr. Yoo, Two


Coverage of the hearing is on CSPAN3, the Committee stream, and good coverage (featuring Scott Horton and Jane Mayer) on KPFA.

Scott; Yoo, any discussion of SERE techniques?

Yoo: Can’t discuss.

Nadler: We need to know why.

Yoo: According to DOJ, privilege both attorney-client privilege and classified.

Nadler: Attorney-client not valid here. Classified is valid if it applies.

Yoo: I have to follow it.

Nadler: It’s difficult to assert your assertion of privilege on this issue bc Bradbury testified earlier this year and said it was adapted from SERE. How can this be privileged?

Yoo: Recognize that a-c does not apply. It is their privilege to raise. If you and DOJ have disagreement.

Nadler: Bradbury is the one making the decision on these privileges, but he answered the question.

Scott; Addington, SERE?

ADD: no, I don’t think I did, but no reason to dispute what Bradbury said.

Scott: Is torture illegal?

ADD: as defined by statute, it would be illegal.

Scott: international agreement of when it’s torture and when it isn’t?

ADD: Is a treaty in effect …

Scott: Don’t people know when it’s torture and when it’s not.

ADD: Senate put in reservation.

Scott: 9/11 did not change definition of torture.

Schroeder: it’d be hard to prosecute on opinion.

Scott: Does Administration have ability to write up such an opinion and torture people based on ridiculous memo.

Schroeder: No.

Scott: is it an excuse to torture if you got good information.

Schroeder: Treaty admits no exceptions.

Scott: If you’re going to go around torturing based on your memo, how do you know beforehand whether you’re going to get good information.

Yoo: Disagree with the premise of question.

Scott: If you can’t get information via other techniques, can you use harsher techniques?

Yoo: Nothing in statute that says anything about that.

Watt: Schroeder. Comment on your testimony, policy and law. In 22 years I practiced law, I had a client, who when he didn’t like my advice, he would say the lord told him to do otherwise. Are there things that go beyond Yoo’s memo?

Schroeder: Hope I’m not joining ADD and Yoo, not able to answer your question. We’ve read reports that water-boarding used on some subjects.

Watt: Would that go beyond Yoo’s memo?

Schroeder: I’d need to know more on water-boarding.

Watt: Recourse that public and Congress would have would be impeachment?

Schroeder: [Pondering] It would be difficult under legal theory in August 2002, to think of what remedy would be available other than impeachment.

Watt: What recourse does the public have against an Attorney.

Schroeder; Not in position to suggest that the advice the individuals gave didn’t know it wasn’t the best advice they could give.

Watt: Is there some recourse that the public has if the advice was egregious?

Schroeder: Bar Association.

Watt: Public has little recourse.

Schroeder: Disciplinary proceeding regarding disbarment first.

Cohen: Yoo, you worked for Ashcroft. Did you consider yourself an employee of his?

Yoo: Yes sir.

Cohen: Did you communicate with ADD sometimes and not communicate with Ashcroft.

Yoo; I never did anything to keep Ashcroft out of the loop.

Cohen: So Ashcroft knew of everything you did.

Yoo: We notified the AG, AG dictated who we could discuss it with, we shared drafts. There’s not way that

Cohen: Did General Ashcroft express concerns about you keeping him out of the loop.

Yoo: Can’t discuss any particular conversation.

Nadler: What’s the privilege.

Yoo: Any information or conversations covered by instruction of DOJ, either attorney client, or deliberative.

Nadler: Which privilege are you asserting.

Yoo: Justice Department, and a-c.

Nadler: How is the a-c implicated in a question about your communication with a superior. Are you the attorney in your position of the AG? Was he your client?

Yoo: It’s the DOJ who’s saying.

Nadler: Not authorized to discuss deliberative comments. Or confidential pre-decisional advice. The question was, did AG express concerns about your relationship with Addington. Does not ask about deliberative comments.

Yoo: After consultation. My recollection is that no, I never had such a discussion with AG.

Cohen: Any discussion at all where he indicated concern that you were not within your authorities. If WaPo and General Ashcroft said that he had that conversation, then AG Ashcroft would not have proper recall.

Yoo: My answer is

Cohen: I’ve got that, you don’t recall. I’ve been here a while.

Cohen: Shocked the conscious. Do you believe that?

Yoo: Interpreting cruel and inhuamne treatment. Constitutional amendments use that phrase.

Cohen: Shocked conscience depends on whether it’s without justification. Do you recall that?

Yoo: Memo says that.

Cohen: Malice and sadism before prosecuted. Where did those words come from?

Yoo: Case law.

Cohen: are you saying the law states it depends on my intent?

Yoo: Memo does not say that. Quotes several cases among many factors.

Cohen: is there anything that you think the President cannot order?

Yoo: You’re asking my opinion now. Opinions do not address that question. Those questions not before us. Today, a number of things, I don’t think any American president would order, and one of those things is torture of detainees.

Nadler: Gentleman yield. Will you answer the question. Not would he, but could he, legally?

Yoo: Not fair to ask without any facts.

Nadler: So there is nothing conceivable to which you can answer no, without knowing facts and context?

Yoo: You’re trying to get me to answer a broad question.

Nadler: Yield back.

Cohen: What branch is the Vice President.

King? Objection

Cohen: What branch are we in.

ADD: Neither to executive nor legislative, attached by Constitution to latter. 1961.

Cohen: Legislative branch.

ADD: babbling on.

ADD: Attached by Constitution to the latter. Constitution further says that Congress consists of Senators and Representatives.

Cohen: So he’s a barnacle.

ADD: I don’t consider Congress a barnacle.

King: On behalf of ranking member, I object to participation of non-subcommittee. Subcommittee participation could lead to situation where 10 others want to participate.

Nadler: Gentleman’s objection is correct. Precedent has been set many times over, I regret that the gentleman insists on point of order. I apologize to gentleman from MA.

Nadler: You stated to WS earlier that your involvement in CIA program greater than military program?

ADD: A number of meetings. Participating in legal meetings.

Nadler: You just said you’re not a member of executive branch. Why was lawyer for VP in such a meeting?

ADD: VP’s provide advice.

Nadler: And participate in various agencies business.

ADD: Modern VPs provide assistance and they provide staff. When the President’s staff wishes to have us participate?

Nadler: President asked?

ADD: We were included because it’s the practice.

Nadler: Any involvement in destroy tapes.


Nadler: If CIA’s program illegal do you bear responsibility?

ADD: Legal or moral opinion? Legal opinions…

Nadler: Given your legal involvement with CIA, would your discussions have any bearings.

ADD: No I wouldn’t be responsible. [may have said "except for moral"]

Nadler: AG and DAG not aware of your memo on DOD memo?

Yoo: Notified that we received request?

Nadler: Did you notify and send them copy of memo.

Yoo: drafts.

Nadler: Your prepared testimony said that these offices received drafts.

Yoo: DOJ has directed me.

Nadler: Not to name particular individuals.

Yoo: My recollection at time was that in delivering drafts to OAG, Counselor.

Nadler: Who

Yoo: Chongoli. My recollection in DAG, principle ADAG, Chris Wray.

Nadler: Did those offices make comments or revisions.

Yoo: Comments Yes. I don’t recall revisions one way or another.

Nadler: Can you say who made those comments?

Yoo: Any comments we would have received would have come from the people I just mentioned.

Nadler: Did you understand DAG and AG approved this memo?

Yoo: Could not issue without approval of their office. I can’t remember whether they sent memo signing it.

Nadler: What do you mean approval by DAG or AG, besides them personally.

Yoo: We received comm from OAG.

Nadler: Why was opinion signed by you instead of by head of OLC?

Yoo: I don’t have the dates in front of me. Bybee just about to go onto the bench. Timing of memo were very close, couldn’t be certain still in office.

Nadler: Schroeder?

Schroeder: Jay Bybee went onto bench 10 days after. At the time, so far as public record he was still AAG in OLC.

Nadler: After he went on bench, who took that position?

Yoo: There was an acting AAG. Classified matters can only be discussed by people cleared to know about them.

Nadler: that person wasn’t cleared?

Yoo: My recollection is that they weren’t clear at that time.

Nadler; King has asked to pass.

Conyers: Schroeder, as former acting, any improprieties about how memos put together?

Schroeder: Unusual for memoranda as significant for 9/25 and March memo to be signed by Deputy. If assistant position vacant, I can understand. The kind of memoranda that would be issued by AAG. Practice as Yoo has said to solicit advice of other components where there is disagreement, so in this case there was either unanimity or some disagreements not noted for the record. WRT memoranda that deal with interrogation and torture, there is some expertise on what torture means, bc both State and INS apply decisions based on torture. In both contexts, two departments have adminsitrative understanding. I would have expected that those two reservoirs of internal knowledge. CIA didn’t allow State to be contacted. Highly unusual.

Conyers: Yoo has claimed lack of guidance on meaning of torture which was why he used health care statute. Do you have any comment on that circumstance.

Schroeder: To amplify on what I just said, working knowledge that would have provided more guidance. At least for some reference points.

Conyers: Schroeder, Yoo has claimed that August 2002 memo revoked that there’s a footnote in revocation memo stating that conclusions remain in force. Am I missing something?

Schroeder: Not my understanding. Levin has testified that’s an erroneous interpretation.

Ellison: Schroeder: When a person who’s at OLC drafts a memo advising on any legal matter, in your experience, is there an ongoing role?

Schroeder: Vary from topic to topic. Would not be unusual.

Ellison: In your experience, someone trying to carry out, memo doesn’t speak to this instance. Does it apply?

Schroeder: No, not unusual.

Ellison, I’d like to know, to what degree did people doing interrogation get directed on how to implement that memo.

Schroeder: Those questions would tend to go through their lawyer chain of command. Unusual to call OLC lawyer directly. Many questions come from GC. Lawyer to lawyer.

Ellison: any interrogation.

ADD: On one trip, saw someone, on a screen.

Ellison: any questions directly?

ADD: I don’t recall, don’t think it happened, it wouldn’t be appropriate.

Ellison: indirectly.

ADD: I spoke to GC office at CIA, but also at DOD.

Ellison: who in mind at CIA.

ADD: General Counsel, Muller. Acting GC, still acting [this is Rizzo].

Ellison: Did you witness going forward. Could you hear it.

ADD: Couldn’t hear it?

Ellison: group that made legal decisions on ongoing basis, Gonzales, Jim Haynes, and [yourself]

ADD Talked regularly with president and counsel, DOD GC, less frequently with CIA GC.

Ellison: Ongoing discussions with Haynes.

ADD: More monitoring what’s going on. If legal advice, ask OLC, typically would begin with Gonzales. Heads of agencies get legal advice.

Ellison: Do you deny being war council.

ADD: Never heard that label until Goldsmith wrote his book. I asked someone over here. I’m not a fan of cute names for meetings, it’s a habit in executive branch. I met on a range of issues, some of which dealt with interrogation. At DOD they would list those meetings as "War Council."

King: Back to this hearing purpose. I’m wondering what a person is thinking watching on CSPAN. Rhetorical question. Is it possible to precisely define torture in law.

ADD: Just off top of my head. About the only way I could think of doing is what happened with MCA, can’t do this can’t do this, and then catchall for dealing with certain things. Difficulty is thinking of everything. You would have a challenge.

Yoo: It is a difficult problem. Way statute was written was vague. it has become more specific, as in referring to Army Manual. We attached as appendix every decision we could find.

King Is it possible to precisely define. Is there room between manual and law, is there a level between manual and law?

Yoo: This all happened after I left govt. My understanding is that the statute refers to the manual.

ADD: Are there things that are not permitted by Army Manual but are short of torture? OLC has some opinions. So I believe yes.

King: I would agree with that answer.

ADD: Someone’s got to be able to rely on those opinions. I can think of five off the top of my head. Those people would not have engaged on their conduct without knowing that the AG had said this is lawful. They relied on that. THey need to be able to rely on that. We can’t leave folks in the field hanging on it.

Davis: Line of questions I pursued earlier. A lot of what we’re talking about is interpretation of statute. You’ve conceded there was a statute. I questioned you earlier why it would not have been important to reach out to the body that drafted the statute. Addington, you conceded that Specter and Sensenbrenner was not consulted. Why not reach out?

ADD: As a legal matter, I think you’re wrong. As a political matter, these were highly classified.

Davis: Very simple question. Let me make this a little bit easier. Yoo talks about an interpretation of anti-torture statute. I happen to think, from a policy standpoint and legal one, come to Congress, ask for statute to be clarified. You did that with PATRIOT. Was there anyone who advocated coming to Congress. Did you advocate it? Do either of you know of anyone who advocated coming to Congress asking for new statute, definition of torture.


Yoo: I don’t remember anyone doing that.

Davis: Anyone going to intelligence committees.

ADD: I’d recommend going to OLC which is what the law required.

Davis: Had you come to Congress, you would have shared responsibility. Sometimes you’ve had to, when SCOTUS told you had to. On your own, you’ve never done it. That’s what this committee ought to be focused on. Policy derived by executive branch didn’t feel need to share with Congress, left you with policy that has only your policy on it. Negative legacy for your administration.

ADD: Sounds like you’re implying that House and Senate didn’t know about interrogation.

Davis: You’re not saying intelligence committees knew about this definition of torture.

Watt: My time to Delahunt.

Delahunt; I don’t want to proceed unless staff has been able to communicate.  US signatory to torture convention. Domestic legislation to implement torture convention. Issue of what constitutes torture, what techniques are implicated, there are some techniques are per se considered torture, such as electric shocks?

Yoo: Electric shocks listed in appendix, violate other statute, torture victim protection act.

Delahunt: What about water-boarding?

Yoo: there is a description in appendix to 2002 memo that talks about trying to drown someone. People referring to lots of different things.

Delahunt: on three different occasions CIA used water-boarding.

Yoo: read same press accounts. Also in statement made by head of CIA.

Delahunt; Addington indicated you’ve had multiple conversations regarding interrogation with CIA. Did issue of waterboarding come up?

ADD: Not in position to talk about particular techniques.  

Delahunt: I’m glad that AQ has a chance to see you, Addington, given your penchant for being unobtrusive. There would be a question whether on those three occasions as to the technique used, whether it was a violation of convention against torture. Agree, Yoo?

Yoo:  One of problems, Convention against Torture different ways by different countries. As described by Hayden. May violate treaty as understood by some countries. Our understanding defined by torture victims protection act.

Delahunt: Whatever was used, I think we can agree, if they were used on American military personnel, it would still be an open question, whether violated Convention against Torture.

Yoo; Head of OLC, if we were using it as part of training, that it was his view that would not be violation of statute.

Delahunt: So if it was used by an enemy, an enemy would not be inviolation.

Yoo: I don’t remember whether Bradbury reached that conclusion. I want to make sure that it’s clear what Administration position was.

Nadler: If enemy interrogator used technique on American POW.

Yoo Would depend on circumstances. It would depend on circumstances. Appendix that lists trying to drown somebody.

Nadler Before we conclude. A number of unanswered questions, some on privilege, some on classification. We may need to revisit these questions. Can I get a commitment to make yourselves available.  

ADD: I didn’t invoke privilege. I said for the same reasons the President said in his speech.

Nadler if we determine we have to have an executive session?

ADD: If you issue a subpoena, we’ll got through this again.

Conyers; On balance, I’d like to thank the witnesses for coming forward, they’ve been, from their perspective they’ve been as candid as they could, I think they sense they may be likely to return. I want to thank them.

Nadler: I made a hasty observation wrt a member’s not repeating objection on Delahunt’s being here. I didn’t want to cast aspersions on his absence.  

365 replies
  1. AZ Matt says:

    From Yoo’s prepared statement, the DOJ memo he is hiding behind.

    The email guidance reads:

    The Department of Justice does not object to Prof Yoo’s appearance before the House Judiciary Committee to testify on the general subjects identified in the letter to him of April 8, 2008 from Chairman Conyers, subject to the limitations set forth herein. Specifically, the Department authorizes Prof Y00 to respond to questions in the following manner: He may discuss the conclusions reached and the reasoning supporting those conclusions in particular unclassified or declassified legal opinions that have been publicly disclosed by the Department (such as the unclassified August 1, 2002 opinion addressing the anti-torture statute, the published December 30, 2004 opinion addressing the anti-torture statute, and the declassified March 14,2003 opinion to the Department of Defense addressing interrogation standards). As a special accommodation of Congress’s interests in this particular area, he may discuss in general terms which offices of the Executive Branch participated in the process that led to a particular opinion or policy decision, to the extent those opinions or policy decisions are now matters of public record. He is not authorized, however, to discuss specific deliberative communications, including the substance of comments on opinions or policy questions, or the confidential predecisional advice, recommendations, or other positions taken by individuals or entities of the Executive Branch.

    • jayt says:

      He is not authorized, however, to discuss specific deliberative communications, including the substance of comments on opinions or policy questions, or the confidential predecisional advice, recommendations, or other positions taken by individuals or entities of the Executive Branch.

      Since when does the DOJ have the right to assert privilege on behalf of the Executive Branch?

  2. skdadl says:

    Yoo: can’t talk about SERE for both reasons: attorney-client and classified. Nadler presses him; Yoo falls back on instructions from DoJ. But then Nadler traps him with Bradbury’s earlier testimony about SERE.

    Heh. Nadler’s got him. How can Bradbury advise you not to answer a question he has answered?

  3. AZ Matt says:

    The Chase is on once again!

    Yoo is cowering againing! Nadler is throwing Bradbury at him.

  4. AZ Matt says:

    From Bobby Scott: Do you know torture when you see it?

    Yoo: 9/11 did not change the definition of torture.

  5. angie says:

    Ridiculous is a word that Bobby Scott has an affinity for.

    Torture, too.

    (VA has a reason to be proud.)

  6. Hugh says:

    Yoo doesn’t know what the common definition of torture is. His memo doesn’t permit anyone to torture anyone because of his own very restricted and peculiar definition of torture.

    • jayt says:

      Watt just said Add and Yoo are a waste of time!

      One of the rare instances where I applaud the stating of the glaringly obvious.

  7. Leen says:

    Rep Watt “otherwise I will just be banging my head against the wall..wasting my time here”

  8. Leen says:

    ooh that was a swat at Yoo and Addington by Schroeder.

    Watt “What recourse do we or the public have”


  9. DeadLast says:

    when he didn’t like my advice, he would say the lord told him to do otherwise

    Sounds like the Bush Admin’s logic…

    • jayt says:

      and is trying to cover Ashcroft’s pasty white ass ?

      I think he’s taking the long way ’round toward showing that Ashcroft was in on it from the beginning…

        • jayt says:

          Either way, Yoo portrayed him as being aware of the memo’s from inception, and during the final compilation. Preliminary drafts were routed through Ashcroft’s office.

  10. skdadl says:

    Heh. Nadler suspends again, when Yoo asserts privilege about conversations with Ashcroft (during which, we’re presuming, Ashcroft expressed concerns about Yoo’s direct contacts with Addington).

  11. pmorlan says:

    Yoo follows the instructions from the DOJ. I wonder whose instructions he followed when he wrote his memos?

  12. Loo Hoo. says:

    I don’t understand how a Department can assert privilege. An individual, seems to me, would need to do so.

    • jayt says:

      ruh-roh – committee is in receipt of said “instructions”

      Nadler *finally* making the distinction as to answering whether conversations occurred, as opposed to the specifics of those conversations.

      “Was there a conversation” – is not objectionable or privileged.

      “What was said in the course of this conversation”? – possibly privileged, though via flimsy argument…

  13. KrisAinCA says:

    Why doesn’t Yoo just come out and say “Look folks, I’m just ducking the truth because I’m afraid of prison.” This is a damn circus, and I can’t believe he’s being soft-balled by the committee like this.

  14. Leen says:

    Yoo looked like he was going to cry

    I believe the pink woman to the left of Yoo is Code Pink’s Gael Murphy

  15. Jo Fish says:

    Herein lies the reason for an impeachemt inquiry. None of this “Executive Privilege” shit applies, and who needs a conviction? Just the testimony will damn these criminals to whatever XTian hell they fear for eternity.

    • nomolos says:

      But that is the reason that impeachment is off the table. Neither fancynancy or the rest of the dems want the bad shit aired as they are complicit in the shenanigans carried out by bushco

      • Jo Fish says:

        Sadly you are right. Their complicity would come out, and the cushy congress gig would be up. Ask Duke Cunningham, no one cares who you are were in lock-up.

    • perris says:

      Herein lies the reason for an impeachemt inquiry. None of this “Executive Privilege” shit applies, and who needs a conviction? Just the testimony will damn these criminals to whatever XTian hell they fear for eternity.

      jo, it IS executive priviledge if congress does not impeach

      ALL power of the president eminates from congress, they allow or disallow EVERYTHING

      it does not matter what you believe, what the scotus says, what scholars believe

      all that matters is what the president wants to do and will congress stop him

      they won’t so he can

      this case is closed

      • perris says:

        let me elaborate

        of course congress can jail and use inherant contempt but if they jail under any other authority the president will simply have them released

    • bmaz says:

      Below you asked for names not in the news of attorneys competent for the job at hand. I could with a little time give you a list of a hundred. But what good is that if nobody here knows who they are and are thus unable to see the point being made? A curious request.

      • pmorlan says:

        Until Boies become such a media celebrity those of us who are non-lawyers were not aware of his reputation (even though there were many local articles written about him). I thought maybe some of the lawyers here might know of another lawyer(s) who, while not a major media celebrity, is in fact known by a lot of lawyers to be a fantastic atty. That’s what I was getting at.

        • bmaz says:

          Honestly, probably harder than you think. Here are a couple of chaps from my area that are simply killer: Larry Kazan and Ed Novak. But nobody outside of Arizona will know them. Trial lawyers of the kind I am describing, with the exception of a very few, really exist in the courtroom and try pretty hard to avoid public scrutiny and news coverage; it just buggers up what you are doing and few people can really understand anyway. They are out there all over the place though.

          • pmorlan says:

            I knew that in the case of Boies, the legal community was very familiar with his talents but people like me didn’t hear about him until the media brought him to our attention. I was hoping that there was at least one lawyer that the legal community collectively recognized as one of the best if not the best that they knew about that you guys could share with us non-lawyers as someone who could tear apart the arrogant Mr. Addington.

            Thanks, though for the AZ atty’s you referenced.

  16. perris says:

    I REALLY wish someone would ask yoo if he knows (he couldn’t), how much information is LOST because we condone torture.

    that fewer people will come forward, that fewer people will agree with our cause, that for every person tortured there will be family and friends who turn against us and create more terrorism not less

    that the policy not only undermines success, the very practice insures failure, that we will never “win the hearts and minds” in a land we are occupying

    I would really like him to know that we undersand he has brought great harm to our cause and that we know it

  17. skdadl says:

    Go, Cohen. Great question. Torture only shocks the conscience if the torturer intended to shock the conscience? Yoo fobs responsibility off on to “the courts” (I presume there are decisions he can cite).

    • KrisAinCA says:

      There are decisions that he can interpret, but language in most of them doesn’t give much latitude for interpretation. If I had another cup of coffee in me I’d link them, but alas, I’m waiting for the next pot to brew.

  18. Leen says:

    When Watt was referring to “recourse” and “malpractice” and “impeachment” were brought up.
    Was he inferring that congress would “implement” those proceedings in regard to Addington and Yoo? Could they lose their licenses to practice law?

  19. CCinNC says:

    Man, Addington, is a smug, arrogant bastard. I missed the morning session getting my oil changed, and I wish now I hadn’t. Is the Subcommittee capable of making Addington cry like Yoo is?

  20. pmorlan says:

    Addington sneers I don’t consider the Constitution a barnicle.

    No, you don’t consider the Constitution at all.

  21. Hugh says:

    You know when a witness is actually trying to give good faith testimony it doesn’t sound like this at all, not even a little. This is the only substantive fact that will come out of today’s hearing. These guys sanctioned torture and don’t have the balls to stand up and defend in public what they were all so ballsy about doing in private.

  22. cinnamonape says:

    Interestingly, the torture-confessions by water boarding by English merchants at Amboyna in the Spice Islands of Indonesia led to three different wars between England and Holland in the period 1652-1674. The English asserted that the Dutch had no legitimate rights to torture their citizens, and that the confessions were false…made under the duress of torture.

    Woodcut:The torture at Amboyna

  23. Leen says:

    Holy shit…Addington just said that Cheney does not belong to either branch

    The Vice President is a “barnacle”

  24. nomolos says:

    Addington has the arrogance of Herman Goring. If it were permitted by the mods I would say “one hopes for the same end for him”

  25. KrisAinCA says:

    Anyone familiar with SpongeBob Squarepants (I have two small children) would know about Mermaid Man and Barnacle Boy. The BushCo top two just got a new nickname in my household…

  26. Bluetoe2 says:

    Addington is an elitist, pompous, arrogant, condescending party functionary. The same kind that made the 3rd Reich possible. There are fascists amongst us.

  27. pmorlan says:

    Question to Addington about the destroyed cia interrogation tapes.

    Destroy? No sir.

    I wonder if they hid them instead of destroying them?

  28. jayt says:

    pardon my repetition, but Addington is such a condescending ass.

    And as such, the perfect representative of the Bush administration at this hearing.

  29. Leen says:

    Does it matter and will they bring up private contractors doing some of the interrogation. And will they ask where those “new” and “enhanced” techniques came from?

    • jayt says:

      I wonder if Yoo’s lawyer makes up the law as he goes as much as Yoo does.

      I find it somewhat astounding that the man responsible for such a monumentally important, if disastrous, policy of The United States of America, finds *himself* in need of legal help from another lawyer.

      • perris says:

        I find it somewhat astounding that the man responsible for such a monumentally important, if disastrous, policy of The United States of America, finds *himself* in need of legal help from another lawyer.

        not a fair critisism

        even the best lawyer would have a lawyer, the saying goes, “the person who represents himself has a fool for a client”

        and the answer is of course;

        “the lord protects fools”

        or whatever

        • jayt says:

          I can understand having someone with him for the purpose of shielding from the possibility of future criminal liability.

          But this is the man whose brilliance was relied upon in order to reverse the policy of the U.S. as to the issue of torture. To the extent that he’s relying upon outside counsel to explain his own writings and theories, and to a basic understanding op what may be privileged or forbidden, and not knowing which info is privileged or forbidden – yeah that strikes me as exceptional.

          *This* is the brilliant legal mind which has damaged this country’s status around the world – possibly irrevocably – and upon whom the admin relied in authorizing torture – and he can’t even explain himself?

          • jayt says:

            and to expound just a bit before going to radio silence:

            The mere *image* of Yoo looking over his shoulder for help can’t be good for the Bush admin.

          • bmaz says:

            Only a fool represents himself in an adversarial proceeding; which does beg the question as to why Yoo brought a lawyer.

            pmorian – That’s the thing; we do but for the most part only in our local sphere. It is a good question, just difficult to answer.

      • skdadl says:

        He is exceptionally badly prepared, isn’t he? Me, I’d have date books sitting there, and I’d know who took over from Bybee, confirmed or not, and whether he was cleared or not (and thus whether he saw the draft or not).

  30. KrisAinCA says:

    Yoo : “My recollection at the time…” What about your recollection now? Or the reality at the time?

  31. skdadl says:

    Yoo is refusing to name the individuals who received his drafts. This is interesting. Long consultation with lawyer. Believes drafts went to counsellor to AG and to assistant to DAG.

  32. SouthernDragon says:

    The woman in red to the left behind Addington is Ann Wright, formerly with the State Department, who resigned in protest to the invasion of Irak.

  33. CCinNC says:

    I don’t know what’s harder to hear, Yoo’s pseudo-obsequious “sir”s or Addington’s arrogance.

    • JTMinIA says:

      I don’t know how long Yoo’s family has been in the States, but his behavior is traditionally Asian under these circumstances.

      Please take this comment as being statistical and descriptive, not proscriptive or approving.

  34. Christy Hardin Smith says:

    Folks, if everyone could hold back on comments a bit, that will make things easier for Marcy. The more comments fill, the more frequently she has to change threads…and that takes time away from liveblogging. Thanks much for being judicious in commenting and not using lots of one-liners and such…

  35. siri says:

    i cannot believe this.
    My neighbor is getting a new porch, and today is “jackhammer” day.

    Plus, for some unknown reason, my whole isp, cable and internet keeps going down.

    i.e. the live blogging of this hearing is something I’ll be coming back to to read, THANK GOD.
    i’ve been WAITING for THIS hearing for forever, it seems.
    Thanks to everyone, and especially to Marci for doing this!

  36. Batocchio says:

    Thanks for doing this – I was listening to this section, but all the spinning was getting to me. I’m looking forward to the dissections.

  37. siri says:

    erroneous interpretation of a footnote!


    no one can understand any of this correctly except the writers.
    is that what he’s saying?

  38. cbl2 says:

    hey firedogs – per christy’s request

    we can all go to gabbly and read EW’s live

    paste this – gabbly.com/ in front of the http in your browser window

    when the box materializes, you can click on the icon next to the name box an type in your screen name – see ya there

  39. cinnamonape says:

    Interestingy is claiming that he can’t discuss things because it is classified…but he admits that others in the DOJ without security clearances participated in the drafting and review of the policies. He’s given THEIR names but refused to reveal the identities of others. It seems that he is being utterly inconsistent about what he can reveal.

  40. mui1 says:

    Nadler: Any involvement in destroy tapes.

    ADD: No

    I don’t believe it. How many times has Addington lied, I wonder? How many times has Yoo evaded the question? Any detectives out there digesting some of the testimonial BS, and keeping count?

    • maryo2 says:

      He didn’t say “no.” He said

      Addington: “To ‘destroy’ them?

      Rep.: “Yes, that’s correct.”

      Add: No, not to ‘destroy’ them.”

      Thus, I think Addington had something to do with discussions about the torture tapes, but he avoided the word “destroy.”

  41. LS says:

    So, what they’ve done is get doofus to write a memo outlining and finding legality that said what they wanted it to say…then they possibly gave different versions to those that were “out of the loop” to sign off on in order to skirt the process, because they knew it wouldn’t fly as written….then they acted on it, and knew all along that they could wave as the memo after the fact as legal cover to torture…then throw his sorry butt under the bus and laugh all the way to the bank if/when it blew up in their face…which has happened.

    • cinnamonape says:

      I wonder if Yoo’s comment about Sands “interview” was also brought to the attention of the Committee. To imply that someone else “lied” when in fact one is distorting what that author actually said about the encounters raises issues as to the witnesses veracity.

  42. Rayne says:

    in case you didn’t catch the instructions, we’re chatting live in Gabbly to ease up the refresh rate on the server.

    You can join us at:

    loads a Java application for chat over the page — we chat there so as not to burden the server with many comments, refreshing only for new content as EW blogs.

    • pmorlan says:

      I tried as you suggested but can’t get that site to work. I will not post anymore comments if comments are a problem.

      • bmaz says:

        Substantive comments are fine, please don’t hold back on that. It is the “Whoo hoos” and little non substantive quips etc that unnecessarily cause strain. I don’t recall you having any traffic violations of this nature….

  43. Mary says:

    I think they need to take their line of questioning to the fact that Hamdan declared certain things to be violations of the UCMJ which incorporatd the Geneva Conventions and ask them whether or not violations of law by the Exec and its agents are subject to exec privilege and classification

    Any normal lawyer has to testify, even over his client’s claim of privilege, to things where he is a fact witness. At gitmo, they were fact witnesses to dicussions planning sessions that Hamdan has held were violations of UCMJ and they may have observed activities that were violations fo the UCMJ.

    I’d like to hear them explain how their fact witness status observing violations of UCMJ or observing and listening to planning sessions for future violations can hold up to a claim of privilege or classification.

  44. pmorlan says:

    Let’s send email to Mr. King to tell him what those of us who are watching on CSpan think about this hearing. I bet he’d be surprised.

  45. Hugh says:

    What is so dishonest about Addington (well yes, there are a lot things) is that he refers to OLC advice (whose content he supplied) as outside guidance for what he did.

    • phred says:

      Yeah, but that’s OVP’s M.O. Cheney plants a story in the NYT, then cites that story as independent evidence. Cheney and Addiington have been pulling this crap for a long long time.

  46. earlofhuntingdon says:

    ADD, while arrogant even by Metro DC standards, is considerably less arrogant than Dick Cheney. He’s supremely confident he can’t be touched, and that he did everything in accordance with his role as adviser to a “modern” vice president.

    Modern – as opposed to constitutional. But the Constitution never envisioned a Vice President who claimed not to be an integral part of the executive branch. It certainly did not envision a chief executive so vacant that he would “delegate” his authority to his constitutional junior.

  47. Leen says:

    King “level between manuals” .. sliding down the slope

    (Col Wright shaking her head) what a set up

  48. phred says:

    I wish someone would follow up and ask Add at what point SCOTUS reviews OLC opinions. Last I checked SCOTUS is the arbiter of what is and isn’t legal — not the executive branch.

    • earlofhuntingdon says:

      SCOTUS would never “ordinarily” review an OLC opinion, one reason Bush’s neo-conization of both those high and low in the DOJ is so damaging. The Court can only review an actual case or controversy brought to it by litigating parties. Most of these, the Court is free to hear or ignore, that is, to let prior decisions stand.

      Regarding torture, virtually no one in the executive branch knew of these torture memos, let alone Congress, the judiciary or the public. This Congress seems unable to enforce its own prerogatives. The executive won’t prosecute itself. The venues for hearing and overruling these actions are very limited.

      • phred says:

        Yep, I know. My point is the essentially Add is claiming that OLC has sole authority to dictate what is and isn’t legal, which violates the separation of powers imo. It is exactly this point that makes the UE so dangerous, as Davis points out Yoo and Add don’t feel compelled to go to Congress to get legislative relief, nor do they recognize the authority of the courts to review their legal assertions. They have folded all 3 branches into one.

    • readerOfTeaLeaves says:

      Did Addington just shove Ashcroft in front of the bus? ADD insisted that ‘people’ needed to know that what they were doing was legal, implying that Ashcroft was in the loop. Clearly, he shows no respect for military JAGS.

      So did he just try to shove Ashcroft in front of the bus by claiming that the AG ‘would have known’? I’m still confused as to whether Ashcroft did, in fact, see the final memos.

  49. DWBartoo says:

    Apropos nothing,

    When you get ‘within an inch’ of torture, a reasonable person might well conclude that, semantic evasion aside, you are ‘there’.

    As in, “Are we there yet?”

    However, reasonable persons appear to be in short supply, these days, in Washington, D. C.

    I consider such ‘closeness’ to have brought into question the fundamental humanity of this government and of our nation.

    But, clearly, my view is not popular among our betters, who, I am quite certain, cannot imagine that they might ever be on the ‘receiving end’.

    Such lack of imagination is not only appalling, it borders on the sociopathic …

  50. pmorlan says:

    Do you think Davis may be trying to get on the record that the Bushies did not come to the Dems about torture therefore the Dems can’t be held accountable as some have recently suggested?

    • phred says:

      If so he is skating on very very thin ice given the FISA capitulation. To my ears it sounds like he thinks Congress is miffed about being left out, but not fundamentally opposed to torture.

      • Leen says:

        That was my take. That they could have come to the Republican controlled congress and had what they were doing “rubber stamped”

        ###That snippet between Addington and Delahunt was below the belt. Addington inferred that Delahunt would be happy that the Taliban are watching

        • cinnamonape says:

          ###That snippet between Addington and Delahunt was below the belt. Addington inferred that Delahunt would be happy that the Taliban are watching

          It would have been good for Delahunt to reply. “I hope they would be able to hear a better defense of what you and Mr. Yoo authorized than what I and the American people are hearing from you today. Here you have a chance to establish that the tortures you authorized not only have produced immediately essential and critical intelligence, but that they are Constitutional when used in questioning suspects. Instead we have heard evasions and obscurantist responses. Do you think that al Qaida feels justified by your responses? “

    • JTMinIA says:

      Yeah, and that could be very useful if the Admin is holding that over some Dems’ heads as leverage for FISA.

    • emptywheel says:

      I think Davis’ is a somewhat conservative position (and while you’re trying to figrue it out, remember that Davis was the ONLY Dem member of HJC that voted for PAA). He is actually pretty cool with enhanced crap, but he insists on consultation over it.

      To his credit, he’s one of the few Dems who jealously makes the case for co-equal status. To his discredit, he’s willing to sign off on stuff that is immoral and beyond the pale.

  51. Jo Fish says:

    Wooo did Addington just let the cat out of the bag on the Intelligence Committees knowing about torture? Does that mean complicity?

  52. earlofhuntingdon says:

    Yoo claims to have reviewed all prior S.Ct. decisions about the power to torture, bemoaning that there were so few and that Congress had not “spoken clearly” in its legislative language on point.

    Mr. Yooe skipped the part about why there might be so few opinions and so little discussion of torture in even torture-related statutes, including those implementing international treaties prohibiting torture or cruel and inhuman treatment: because it has been illegal for centuries. Obviously, it used to be much rarer than murder, which is prosecuted every day.

    More basically, many of these questions are compound, too complicated, and create room-size escape hatches for these hostile witnesses. Diss the sound bites, gentlemen. Ask questions it’s harder for these witnesses to avoid answering.

  53. kspena says:

    Could anyone read Col Wright’s lips in the first session. It seemed to me that she was saying over and over, “That’s a lie, that’s a lie.”

  54. siri says:

    no THEY ARE NOT.


    thrwoing things now

    people are talking about different things when we talk about waterboarding.

    what a weeeeenie!!!!

  55. pmorlan says:

    Waterboarding only 3 times? What about the NYT piece that mentioned Khalid Sheik Mohammad (might be someone else?) was waterboarded over 100 times?

    • Blub says:

      since waterboarding’s “effectiveness” suppossedly relies on the victim’s uncertainty about whether or not the interrogators would actually let him drown, wouldn’t the ruse lose its effectiveness after say 100 times? Or were they just getting their jollies hurting him at that point?

      • KenMuldrew says:

        The reason that waterboarding is torture is because the victim makes what seems like a conscious decision to end their life. Even though your body will eventually force you to breathe in water, you can never take that awful step without knowing that it is a willful act. It’s kind of like Zeno’s paradox where the time interval between conscious acts of prevention of breathing gets cut in half every time they are made, but you never get to the point where your consciousness switches off and the decision is made for you. So at some point you succumb to the horrific decision to end your life by breathing in water. It is the only blasphemy.

        For the torturer, this is a bludgeon with which to club the psyche of the victim and put them in a state where they become quite malleable. And if it’s done with due care and attention, there is no organ damage so people like Yoo can sleep well.

        (At least this is what it’s like when your head is held under water until you begin drowning. Given what people have said who have undergone waterboarding, I think it’s the same).

        • Jo Fish says:

          Yeah, but it’s a bit more horrific than that, because they start with a wet cloth, that is over-soaked before it’s placed over the subjects mouth and nose, so water is already running down the nose and throat, and the person is aspirating water as the initial dose is applied. And the “board” can be set to level or head-down so water fills the mouth and even gagging is not feasible as more water is poured. Not fun to watch. Less fun to experience.

        • cinnamonape says:

          Actually the esophagus was not designed to expel substances in reverse. Repeated instances of this likely would cause necrosis of the tissues of the lungs but also damage to the esophagus. Efven short periods of asphyxiation can cause neurological damage. These individuals need to be examined by independent physicians to ascertain if any organ or tissue damage has been sustained. The definition of torture, however, also includes psychological trauma (e.g. degradation, fear of potential pain, threats of torture) so it’s clear that Yoo’s argument falls short of a real defense.

        • earlofhuntingdon says:

          Well, it’s not a willful act any more than is sneezing. Try and stop one of those. One breathes or one dies. But you’re right, it creates an intentional sense of hopelessness, helplessness and panic, all beyond the victim’s ability to control. Which is why it’s used to break down victims to the point of pliancy, submissive suggestibility.

          What it enables is putting the interrogators’ words into the victim’s mouth, like water. What it does not produce is actionable intelligence. But that doesn’t seem to be Cheney’s point. He just wants all the water, grasslands and steer he can find. He wants to make sure that the railroad has only one place to go, too – over his land. And he doesn’t care how many buffalo or Injuns or settlers he has to “displace” in order to get them. Torture is about power and dominance; it’s not about obtaining credible intelligence any more than rape is about loving, consensual sex.

    • jayt says:

      Waterboarding only 3 times? What about the NYT piece that mentioned Khalid Sheik Mohammad (might be someone else?) was waterboarded over 100 times?

      Yep. That’s “once” /s

      (maybe I shouldn’t have a /s tag. It *is* actually considered to be once).

  56. Adie says:

    Interesting, to me anyway: After being cornered and made to give a simple answer to question on torture, Yoo covered whole lower face with tightly clenched hands, & his expressive eyebrows screamed that he was very very worried.

    Right after, when Addington was asked to answer same question with a simple yes or no, he fussed and fiddled and talked around the subject, trying to be evasive, but maintaining the slick, cool demeanor. And while doing this, Addington reached over and put hand on Yoo’s shoulder firmly, as if to shore up Yoo’s possibly faltering composure.

    Spoke volumes. Davis was excellent; always is.

      • Adie says:

        But the more rattled he gets, the more expansive Addington’s dismissive wagging head/waving hands in the air gestures become, to the point that they are a delightfully revealing “tell”.

        Oops, according to Add., I shouldn’t put that in print, ’cause it might hep the tehrusts. So pretend I said nothing, folks. LOL

  57. Hugh says:

    The point that was made by the previous questioner is that the Executive could have come to the Congress to change the definition of torture but that they never did even though it was a Republican controlled Congress at the time. What this goes to is the the complete contempt that the White House had for the Congress and also that they knew what they were doing was illegal, could not stand the light of day, and so hid and even now deny and seek to obfuscate.

  58. skdadl says:

    Both Yoo and Addington: we don’t know what torture is unless a court tells us, or unless we can establish its legal status.

    And that is the problem. A generation of clever young lawyers have been trained to answer questions that way, and I suppose that some of them mean it. They honestly don’t know any other answer. The horror, the horror.

  59. Adie says:

    Oh my, Addington really is an arrogant so-and-so, talking down to ALL his questioners, as if they are hapless inferior beings. Good on the Judic. Comm. Members, for keeping their cool. He’s baiting them. they’re not buying it.

  60. earlofhuntingdon says:

    I like the “escape hatch” argument that these witnesses can’t tell Congress certain facts in open court not because they’re privileged or classified, but because “Al Qaeda” may be listening. The non-answers and non-denial-denials here are quite breathtaking.

    • earlofhuntingdon says:

      Open “session”, not open “court”. The answer avoidance remains breathtaking. It’s also startling that Addington agreed to this little colloquy at all.

      • CCinNC says:

        Well, he didn’t exactly agree, and he made it clear he’ll have to be subpoenaed again. But I do wonder if he got a kick out of this. He seemed to relish it.

        • Adie says:

          whut’s that handy saying?: “a legend in his own mind”

          still, all that braggidosio show, looks like a defensive-type maneuver to me.

          it may work just fine at the office, but… not so much when directed at a fully armed Judicial Committee.

          • CCinNC says:

            The committee did a good job — better than I expected. Wish it could’ve gone on a couple more hours, but I guess they’re all ready to head home for the holiday.

  61. readerOfTeaLeaves says:

    Well, ADD makes clear that the firewall he built was tight, and it sure appears it’s something he was quite proud of and has no apologies about.
    No asking Congress.
    No asking the military.
    No asking the DoS.

    Even if that was the only info from this hearing, it was a good use of taxpayer time.

    • Blub says:

      I gather that Yoo is finding this somewhat different from lecturing to an audience of Berkeley 2Ls dependent on him for their grades…

  62. Blub says:

    OT. LA Times/Bloomberg’s last JAR poll, just out, now gives shrub a 23% approval rating and a 73% disapproval, a spread of -50% — apparently a spread that wide is without precedent in the history of presidential polling.

      • Blub says:

        yep (but OT follows). 6/17 Fox, 19% Approve, 69% disapprove. But that’s not uunusual for Congress. People have always hated Congress but loved their own reps in it. It’s gone as low as 12-13% with 75-80% disapproval before.

        More revealingly, for Dems, 21% rate their performance as Excellent/Pretty Good and 73% as Fair/Poor (not apples to apples, unforunately). Rethugs at 21% approval, 75% disapproval.. both first week of June.

          • Jo Fish says:

            it will only mean something to Pelosi if someone takes her seat away, or mounts a credible challenge to her “Historica” speakers j-o-b.

  63. Mary says:

    107 – interesting, that. I hope she can get some satisfaction.

    I don’t actually think Ashcroft was cut out of the loop in that he didn’t get the memos and ok them; I think maybe Yoo and Addington and Gonzales and Flanigan got together and cooked things up and then they were presented to Ashcroft as pretty much fait accopmli but for his ok, and he always went along at that point and never really just drew the line in the sand.

    Wray’s name coming up again I see, and Thompson DAG slot getting a little focus.

    Has anyone specifically laid out for either of them the scenario of someone who will not take an action because of their doubts of legality unless they receive a legal authorization, and the different standing of the lawyer who issues that opinion knowing it to be an authorization to act rather than a discussion of the law, including the factors and law mitigating against action?

    Any question about when people do die from the actions authorized. What if someone uses your approved technique of hypothermia and freezes a young detainee to death?

    Big question – Yoo/Addington – what if your authorized techniques were used on people who were not illegal enemy combatants? Even before Hamdan, what about the use of the techniques on those who were not illegal enemy combatants ? What is the chain of command responsibility for that?

  64. Leen says:

    Did Conyers just say that they “might, most probably return” It sounded as if he were begging Addington

  65. PraedorAtrebates says:

    I am sick of the “thank you for coming” blah blah. They HAD to come and they lied through their teeth, prevaricated, and obfuscated as much as possible. Quit with the “thank you” crap and just use declarative statements and asking questions without the prelude nonsense, “Thank you for your service…blah blah” or “Thank you for showing up today…blah blah”, “Thank you for taking time away from your busy schedule…blah blah”.

    TIRED OF THAT CRAP. No more comity comedy. It is ridiculous and unwarranted.

    • Rayne says:

      There’s more going on than meets the eye. It sounds like crap to our ears, yes, but remember that one or more of these assholes has likely been evesdropping on members of congress like Conyers.

      It costs Conyers little to be nominally polite.

  66. earlofhuntingdon says:

    Among other things this hearing makes clear, is that Addington is far more dominant than Yoo. He would have deferred to him as the personal legal representative of Cheney, the de fact driving force behind this administration, certainly in regard to warmaking and interrogation practices.

    • bmaz says:

      there you go; I believe we have a winner! I actually think that Addington got Yoo to write things and theories a fair distance beyond anything Addington would have ever put to paper if he were in Yoo’s shoes as the lawyer writing the opinion. But since he didn’t have to write and countersign it, and wanted it only as legal cover, Addington was just fine with it.

      • Leen says:

        “legal cover”

        The way Addington blew Nadler off at the end was so telling. Then Conyers kisses his ass and said it sounds like they “might, most probably return”. Addington seems to be operating as a “barnacle” himself.

        Congress is “irrelevant” to him.

        • Jo Fish says:

          Then Conyers kisses his ass…

          Therein lies one of the reasons the Kucinich Impeachment resolution will go nowhere. Sadly, Conyers once a beacon of Liberalism, is just as complicit as the rest of the fucking criminals in Congress.

          • readerOfTeaLeaves says:

            Actually, the civil surface interactions are really important over the longer term.
            It makes it a bit more clear that it’s not about ‘getting Republicans’ per se, but at trying to get at the bottom of this costly mess.

            Bear in mind that probably retired military and others who may not be fans of Conyers are watching, and he’s representing voters who have a range of personal beliefs. Tom DeLay would have been a first-class asshole in a hearing like this, and look where he ended up. Conyers civility has served him over many, many years.

        • CCinNC says:

          I couldn’t figure out what kind of message Conyers was sending. He stared pointedly at Nadler. Just telling him to be polite???

          • Adie says:

            maybe they had discussed some point earlier which Conyers was in the process of revealing and expanding – you don’t always need electronics to multitask when you’re as good as Nadler and Conyers, heh.

  67. TJColatrella says:

    Until people really focus on the 800 pound Gorilla in the room and looming over both the legal abuses in and emanating from The White House the Justice Dept. and even sadly our Federal Courts and Supreme Court noting will even begin to get better…

    An that Gorilla is the Federalist Society..!

    The Federalist Society is a greater threat to our Republic in history and a greater threat than al-Qaeda could ever be..they can only kill us but the Federalist Society can take away everything we hold dear or once held dear about our Republic and nation and democracy..

    Yoo, Addington, Alito, Scalia, you just have to follow their slime trail and it leads to the Federalist Society..

    The Federalist Society has thoroughly infested our Justice Dept. and it’s never been in such disrepute and even suspect with Constitutional crisis looming over Subpoenas in limbo our Congress knows the Federlaist Society will cut them off at the pass so to speak and acts unilaterally and in a group think mode to further their pernicious agenda..as the usurpers they are Tory’s who favor the Unitary Dictatorship over participatory democracy..

    Remember the Legislative branch is the People’s Branch, so the disrespect you see from Yoo and his arrogance and dismissal of that body is not only for The Congress but the American people..

  68. pmorlan says:

    I’d like to see the transcript for the exchange between Davis and Addington about the administration not coming to the Congress about torture. I think Davis was trying to get on record that the Dems did not know but after a moment Addington picked up on it and said you’re not suggesting that the Committee’s didn’t know about this and Davis appeared to back off. It would seem to me after that exchange that our Dems may be up to their necks in torture too not the other way around. But, again I’d like to see the transcript. What did you guys think?

    • emptywheel says:

      We know the Gang of Four (NOT Eight, as the law requires) was briefed. It’s unclear–partly bc CIA refuses to take minutes fo the meetings, what was told them.

      • pmorlan says:

        So we know the gang of 4 were briefed but we don’t know how much info they knew, correct? Who do we think has a problem in Congress on the torture issue? Is this why nothing has been done to really get to the bottom of this?

  69. cinnamonape says:

    Yoo, Addington, Alito, Scalia, you just have to follow their slime trail and it leads to the Federalist Society..

    BTW A “Barnacle” is a mollusk…slime trail. indeed.

  70. SouthernDragon says:

    I know one thing. Gabbly needs to fix the scroll event. That thing’s a real pain in the ass. Other than that, nice little app, though.

    • Rayne says:

      Double-check your Java, to see if that was part of the problem. I’ve heard that having an older version can interfere with Gabbly.

      Which browser were you using — could make a difference.

        • Rayne says:

          Ah, interesting…I’m not upgraded to FF3 yet, reluctant to do so until any early bugs are worked out.

          Wonder if that was the issue? are you on win/linux/mac?

          • SouthernDragon says:

            Windoze, and FF3 certainly has some issues. Crashes a lot more than 2 ever did. And it’s footprint gets noticeably bigger with every new version.

              • SouthernDragon says:

                Hasn’t ever eaten my bookmarks yet but eats whatever is in front of me a lot. I had to look to see if Micro$oft had taken over development and included it in their CrashMasters list. Thinking of going back to 2. Silly me keeps all those .exe files.

  71. lilysmom says:

    Thank Marcy for liveblogging the testimony. It makes a huge difference.

    I feel now the way that I felt during the depths of the Watergate days…so ashamed and so sad.

  72. Hugh says:

    Yoo was Addington’s sockpuppet on the torture memos. Today Yoo was often flustered because although they were sitting side by side they were not in their more familiar positions with Addington’s hand up his ass.

    • SouthernDragon says:

      I wonder if Yoo knew that before today or he’s just now realizing he got pwned by the WH.

      • cbl2 says:

        few realize it until the cell door slams

        but from some of his bluster just before the subpoena indicates he had figured it out

      • Hugh says:

        I wonder if Yoo knew that before today or he’s just now realizing he got pwned by the WH.

        That is a really good question. I would have thought that when Ashcroft burned him on the OLC job he would have gotten a clue but then he seemed content to go back to Berkeley and peddle his bilge there and make the occasional vanity guest appearance in the media. But the more light that is shown on him and his work the more pathetic both seem. Today he was flailing but I still don’t know if his ego has internalized that, as you say, he was pwned.

  73. Mary says:

    197 – No, I’m just hitting pieces of these posts and threads between other things I have to get done (drats) but thank God for that. Someone apparently paying attention.

    I hope they dig into them both on this concept of “secrecy” of the legal opinions themselves. Notice that the ones released by Pentagon have Pentagon declassifying, but no one is on them as being the classification authority. They need to say who made the decision to classify the OLC opinions and what the basis is to hold that legal reasoning – especially to the extent they want agencies and torturers to rely on them – is classified.

    Addington is Mr. parsethewords, so he’d be a nice one to take a look at the OLC opinion the Pentagon declassified and explain how anything about that, from the ability to classify at all, to the lack of anyone taking responsiblity as classifying and the lack of section references is valid. Also if other opinions that do not have anyone signing off as being the classification authorization are validly classified.

    • Adie says:

      Thank you much for whatever comments you have time to give, Mary. Really helps put things in perspective for us non-lawyers.

    • Leen says:

      Mary why no questions about “alleged” independent or private torture contractors being used as interrogators? Is that irrelevant here?

  74. cinnamonape says:

    Yoo has tried to split hairs by asserting that the protocols he approved did not allow “intent” to drown people. But the fact is that water boarding is only successful in compelling the victim to “talk” (even if it’s to confess to crimes they didn’t participate in or provide nonsense evidence) if the victim inhales water and gags. That IS the definition of drowning…Yoo seems to think that it implies KILLING the victim. But it, in fact, is a process that CAN result in death.

    But the intent is to drown, and then reduce the procedure BEFORE death.

  75. Mary says:

    The thing about barnacles is that now and then the whales have to dive deep and, even though its a little painful, scrape those suckers off on the ocean floor and leave them there.

    So, if Cheney isn’t really a part of either branch, just a cross-dressing fillin, then he has no sovereign immunity protection, right?

    • cinnamonape says:

      Seems that he and his staff could not invoke “Executive Privilege” if he is not a member of the Executive Branch. He’d have to apply for “Barnacle Privilege”.

      But if he is an officer of the Senate then he and his staff are subject to the discipline of the Senate…he can be expelled and his funding terminated. His staff can be pared, his records can be required to be turned over to the Committees IF he is an officer of the Senate and operating in its interest.

      • PJEvans says:

        This has me thinking about an amendment defining the VP as part of executive branch except when physically in the Senate chamber and actually acting as president of the senate, at which times (and only at those times) the VP would be part of the legislative branch.

        I’d be sorely tempted to use the word ‘barnacle’ in describing the VP’s location in the legislative branch.

        Cheney no doubt has pet lawyers who would work hard to find ways around that one also.

        • Rayne says:

          Yes, it’s become all too clear with this administration that the role of the Vice President is entirely too sketchy and must be remedied.

          No man should be above the law; no man should have more powers of unspecified nature than the President or any elected member of Congress or any Justice.

  76. prostratedragon says:

    Thanks, EW. Your live blogging today has conveyed to me so many heart-warming moments, like this one:

    Davis: Had you come to Congress, you would have shared responsibility. Sometimes you’ve had to, when SCOTUS told you had to. On your own, you’ve never done it. That’s what this committee ought to be focused on. Policy derived by executive branch didn’t feel need to share with Congress, left you with policy that has only your policy on it. Negative legacy for your administration.

    ADD: Sounds like you’re implying that House and Senate didn’t know about interrogation.

    • pmorlan says:

      lol…forgot all about the live blogging. This is the very part I wanted to see (was that a hint to me? lol). I hope the Davis response is also there.

    • bobschacht says:

      Thanks, EW. Your live blogging today has conveyed to me so many heart-warming moments, like this one:

      Davis: Had you come to Congress, you would have shared responsibility. Sometimes you’ve had to, when SCOTUS told you had to. On your own, you’ve never done it. That’s what this committee ought to be focused on. Policy derived by executive branch didn’t feel need to share with Congress, left you with policy that has only your policy on it. Negative legacy for your administration.

      My thanks, too!

      In this case, I don’t think EW’s transcript is verbatim, and the last two lines had a bit more bite– i.e., you purposefully avoided sharing responsibility on this dog, and having done so, the responsibility is yours and yours alone. (My paraphrase). [”Yours” = the adminis

      He’s only talking about the definition of torture here, IIRC, but the point is an important one with legal implications, doncha think?

      Bob in HI

  77. pmorlan says:

    Davis: Had you come to Congress, you would have shared responsibility. Sometimes you’ve had to, when SCOTUS told you had to. On your own, you’ve never done it. That’s what this committee ought to be focused on. Policy derived by executive branch didn’t feel need to share with Congress, left you with policy that has only your policy on it. Negative legacy for your administration.

    ADD: Sounds like you’re implying that House and Senate didn’t know about interrogation.

    Davis: You’re not saying intelligence committees knew about this definition of torture.

    I wish that Addington has answered that last Davis question.

    • Leen says:

      He did. He said they knew at some point and was not sure when they knew but that they had been communicated with about what was taking place

      • pmorlan says:

        I thought about this some more and if he in fact said that he didn’t know when they were told then my guess is that they weren’t told at the beginning or he would have said so.

        • klynn says:

          There’s the rub.

          That’s the question, were they told in the beginning?

          He cannot claim, ” I can’t remember,” on that. Everybody remembers the “beginning and the end” of anything — on record or not.

          How can someone so versed in legal matters claim, I cannot remember. He’s GOT to have a very sharp memory to make any decisions…or he should move on to a new vocation, less memory intense.

    • prostratedragon says:

      I got the feeling ADD (is he a barnacle’s barnacle?) would prefer to be menacing but elliptical there.

        • DWBartoo says:

          Presumably ‘Barnacle’ services ‘needs’ of both the Executive Branch and the Senate, but rest assured, both relationships are quiite planktonic …

          • earlofhuntingdon says:

            I think the more accurate analogy is that Cheney is the barnacle (not Congress) on the hulls of both Congress and the executive branch. Attached to both, he is neither. Which is hogwash. The Constitution explicitly makes his office a part of the executive branch, in all respects with purely nominal duties — except where the President is unable to act.

            Under Bush, that normally throwaway condition takes on new meaning. Cheney made up for himself a new office, with new powers, and persuaded Bush, a willing and over-his-head placeholder to say, sure, fine, go ahead. Just as he did his other “legal” claims. That Bush, as the legally constituted head of state and government, retains the legal liability for his administration, including Cheney’s actions, must also please Mr. Cheney no end.

            • DWBartoo says:

              Well said, EOH.

              And though I thought I had suggested that ‘Barnacle’ is Cheney, you are quite right that Cheney has rather enlarged upon the role of vice, certainly well beyond what was originally intended for those possessed of that rarified office …

              In almost any other era of our nation’s history, actions such as Cheney’s would have resulted in a very swift reaction from Congress, or even the White House itself.

              Sadly, we are in uncharted waters, the crew has mutineed, the Captain and the First Mate are both certifiable and the passengers haven’t a clue, for the most part, that not only is no one really at the wheel, but the Captain and his Mate intend to scuttle the ship of state and steal all the plunder which they and their minions can haul away.

              Run up the Jolly Roger! The sharks are circling … shoals are fast upon us, and the damned ship-worms have been at work for years …

              • earlofhuntingdon says:

                I’m sure that Big Dick, like Captain Hook, hears the tic-toc of the croc’ every morning before he closes the lid and rests his head from the night’s labors.

                • DWBartoo says:

                  It is somehow comforting to imagine, then, EOH, that ‘Barnacle Dick’ aka “The Solipsistic Prick” might actually suffer some little tic …

                  EOH, I always appreciate your informed, pithy comments, seasoned often with your equally devastating, if subtle, humor …

                  Many thanks!!!

              • earlofhuntingdon says:

                Blackwater I regard as an expression of the Goopers’ obsession with outsourcing as much of government as possible, even activities traditionally regarded as exclusively “governmental”, which are normally prohibited from being outsourced.

                Their obsession reveals their 19th century Robber Baron mentality: why pay the government $10 to do something when you can outsource it for $100, and deprive the government of its ability to continue doing it at the same time? (And get your hands on all the associated data, to boot, so to speak.)

                Mr. Cheney, however, is sui generis, unique, with his own special (self-made) rules. He’s the evidence ID/creationists have been seeking. Cheney is too complex and corrupt to have evolved: he must have come to us fully formed from God’s hand. I wish she’d take him back and try again.

  78. LS says:

    The essence of Addington’s testimony is that he is an “employee” of Cheney, and that Cheney is not a part of any branch of government; therefore, they have no obligation to answer to anyone about anything. It’s not about W having control…it’s about Cheney having control and no one having any oversight over him. But, to me, that means that Cheney and Addington have to answer directly to the “law”…i.e., “criminal law”….since they (self-proclaimed) are not a part of the 3 branches of government. Maybe than can be sued in regular court.

    • Leen says:

      That seemed to be the clear and arrogant message coming out of Addington. Above the law and on a level between the manuals.

  79. Hugh says:

    Well at least Yoo stood up for our troops by saying that if they were waterboarded it would depend on the circumstances whether or not that was torture. I’m sure they will all sleep more soundly tonight knowing that.

    • Blub says:

      To understand these people you have to put yourselves into their shoes. Creatures like Addington and Yoo would never empathize with the soldiers they send into harm’s way. To them enlisted men (and probably most officers as well) belong to a culture as alien and incomprehensible to them as the one they have us fighting.

      “On en était venu à ce point de mépris pour la vie des hommes et pour la France, d’appeler les conscrits la matière première et la chair à canon.”
      – de Chateaubriand, 1814, coining the term “cannon fodder”

    • PraedorAtrebates says:

      The problem with comparing what is done to CERTAIN troops in SERE training (by no means ALL) is that it is HIGHLY controlled, they can opt out at ANY time (and thus “fail” the course), and it is also VERY limited in extent.

      The victims of torture outside of SERE have NO control, some have DIED, and they cannot “opt out” except, perhaps, by making shit up that they think will please their pervert torturers.

      I want the list of torturers (and their addresses) published.

  80. JTMinIA says:

    Yoo’s admission as to what his memos mean to our soldiers was a high point. That he seems to have not thought of this when writing the memo (or when the hand up his a$$ made his hand type it out) is, I’m sorry to say, not surprising. No-one in the Exec seems to think about them at all.

    • chetnolian says:

      Hey you don’t understand the Cheney team approach. Just cos the US can do something doesn’t mean any nasty furriner can. They’d be deeply affronted if someone did it to Americans.What about all these Conventions? I refer to the American ambassador (McGill?)who got held briefly in Zimbabwe. He was incensed about the breach of conventions. Their cntempt for Congress is as nothing compared to their cotempt for any county outside the USA.

    • Hugh says:

      OT…check out the dow and the price of oil today…..

      To paraphrase Ecclesiastes, Speculation, speculation, all is speculation.

      • readerOfTeaLeaves says:

        There is a time for every season, indeed.
        Note the economic behemoths that are recording huge losses this quarter; might be a good time to re-regulate the banking industry.

      • perris says:

        To paraphrase Ecclesiastes, Speculation, speculation, all is speculation.

        according to a pretty informative link I read, it’s not speculation at all, that in fact investors were selling their petro stocks to pay for their mortgage stocks

        it is indeed, the lack of production due to our escapades in Iraq and the fact that our money is now a pox

        • Hugh says:

          according to a pretty informative link I read, it’s not speculation at all, that in fact investors were selling their petro stocks to pay for their mortgage stocks

          I was watching the price fluctuations in oil markets last August when there was a very noticeable change where prices moved up without any triggers and continues to move up. Supply and demand is a red herring. The differentials between the two have not changed much in the last 3 years. Even this week, for example, oil stocks held steady yet prices initially dove and then today spiked. In neither case was there a persuasive reason for the move.

          It is important to separate factors out. One of my iron laws of energy is that in the short run oil prices are unjustifiably high while in the long run they are absurdly low. This has to do with the how the oil industry developed and where it is going, but what while all this is true and will have an effect on oil prices at some point, the crucial point here and now it is not having any effect on prices.

          • perris says:

            here’s a link which I thik is pretty good


            supply and demand is certainly a factor since IRaq though, all that oil not making it to market creates a pressure even though supply might outweigh demand

            I think the real reason is how little our money is now desired

            • Hugh says:

              Iraq is irrelevant to what is going on in oil prices because its contributions to the export markets have been factored in not on what they theoretically might produce but what they have in fact produced since the 1990-1991 Gulf War. The thing to look at is not how many contracts are traded on a particular market but how much money is being committed to that market. It is that which has gone up so much and given how heavily the markets are leveraged (15-20 to 1) that gives the speculation the price controlling power it has. A one day change even a big one means almost nothing because it represents a small fraction of the overall action. And since these are paper bbls that are being traded just means that one set of paper is being swapped out for another. The idea that speculators somehow got blindsided by the market is kind of ridiculous because they were responsible for precisely the price spike that they were supposedly blindsided by.

    • Blub says:

      wow on oil prices. I guess the combined effects of the OPEC/Saudi production commitment and the Chinese NRDC intervention didn’t stabilize things. Surprise, surprise. why? ’cause shrubco’s offered up NOTHING substantial to consolidate the other worldwide measures. Nothing.

      • PraedorAtrebates says:

        The goal is to so upset idiot public people with oil prices such that they will grasp at ANYTHING to fix the situation: like drilling in parks, monuments, wilderness areas, and offshore with wild abandon.

        The goal is to NOT do something substantive, but rather, to feed the problem to make it worse. Shock Doctrine in action.

        • klynn says:

          I still think the suggestion that they start with the public lands already given to them before ANYTHING else happens is the tact to stand by, no matter what the price of oil.

  81. JTMinIA says:

    Davis did an excellent job of blocking that reply by Addington, by getting Addington to admit he had no idea when Congress was informed.

  82. JTMinIA says:

    Gang of Four. (And please no requests that I read some Wiki entry, since it’s not there, either.) Pelosi. Impeachment off the table.

    The dots are so close together.

    • cbl2 says:

      Pelosi, Reid, Harman (then ranking member House Intel comm) Jello Jay (then ranking member Senate Intel comm)

      other congresscritters( eg Clinton) were invited to view ‘intel’ under secure conditions in run up to AUMF – many of course passed on the offer

      • JTMinIA says:

        Yeah, but only Harmon and Pelosi were given the early briefings.

        One thing I’ve always wondered about this (and I was reminded of this when someone live-blogged that Addington was sexist): did the Admin choose two women because they thought that females would be more worried about looking “soft” and, therefore, would be more likely to either approve or, at least, not object?

      • angie says:

        nicely summarized, cbl2.

        (too bad you are not a congresscritter– straight and too the point would be most welcome!)

  83. rosalind says:

    FISA ot: tpm reporting the vote will be delayed until after 4th of july break. anyone hear anything definitive that the vote has been delayed?

  84. dosido says:

    Why are there no demonstrations of the techniques they are discussing? Why has no one proposed using these techniques on witnesses at hearings? Isn’t that the next Bushlogical step?

  85. der1 says:

    I like that DelaHunt “outed” Addington, the war criminal, to “al Qaeda” and Addington’s Jack Bauer attitude, “yeah, let them come and find me!”…..it worked in the White House. You all know that guy. He’s the maitre d’ who schmoozes and sucks up to the owners and the wealthy cliental dining at “his” restaurant while behind the scenes he’s harassing and groping the wait staff, skimming from the bank, and taking his “cut” of the tip action. In other words a total asshole.

  86. LS says:

    Taxpayer money pays Cheney’s salary and his offices expenses…via Congress and via the executive branch which makes him an employee of We the People….and Addington’s salary is also paid for by taxpayer money; therefore he is an employee of We the People….not Cheney’s “employee”. These people need to be dealt with. Just because Addington says anything is so, doesn’t make anything so. We should fire both of our “employees”.

  87. selise says:

    i thought pacifica radio’s coverage of today’s hearing was very good. having scott horton on, plus all the additional guests (mark danner, jane mayer, ….) was excellent. i hope there will be more like this.

  88. KenMuldrew says:

    I know that it’s not a conscious act, and considering the process academically, from a distance, that is perfectly obvious. But when it happens, you know for sure, without any doubt, that you have made a choice to end your life. The knowledge of that choice stays with you for ever (even though you can easily convince yourself that it was no choice at all). Hell, my drowning episode was about 35 years ago and I remember surrendering to that overwhelming impulse as if it was last week. The only other time I’ve felt that way was when I pumped out on a rock climb and eventually let go. The mental process is the same; you can’t do anything to prevent what is going to happen, but you really do make that decision to give up (of course with the climbing episode, I was in that position due to my own stupidity instead of someone else’s, but that didn’t make it any worse).

    When a torturer brings you back to life after you have willingly chosen to end your life, they have enslaved you. That’s the purpose of waterboarding, just as you note.

  89. Slothrop says:

    Yoo believes the President can bury a person alive, legally.

    And this guy continues to be employed by the University of California?

    It’s astonishing.

  90. LS says:

    One thing to come out of Addington’s statement that Cheney is not a part of the Executive Branch, is that aides to Cheney could not claim Executive Privilege with regard to their conversations with him…right?

  91. behindthefall says:

    Gad. Do even lawyers get tired of listening to lawyers like these? Imagine a scientist trying to use these tactics to defend his results and assertions. Imagine a thesis defense where a successful defense is one where through stonewalling, hair-splitting, and obfuscation the candidate avoided having to defend his or her work at all.

  92. earlofhuntingdon says:

    So what was Cheney’s plan for having Addington go a couple of rounds with a Democratic subcommittee in the House?

    To show that he’s not afraid? An obsession for him that Hemingway and Freud could dwell on for, oh, minutes. That Addington is too wily to be pinned down even by the former prosecutors on the Subcommittee. That Cheney has “nothing to hide”? To ferret out the questions and issues most likely to concern Dems in the run-up to the election. Or to claim that he’s “fully cooperated” when he decides the time has come not to cooperate any more?

  93. JTMinIA says:

    Addington not only cooperated, but offered to stay longer if they had more questions. He’s an open guy.

    (More likely: he got off on today [see EoH on Freud above].)

      • earlofhuntingdon says:

        Keel-hauled? So you, too, have “crossed the line”? (Though not in a sense that Ms. Breck Girl Goodling would understand or contemplate.) My guess is that hull, while encrusted, is not nearly so problematic as a deep keel and the slowness with which one’s mates are liable to pull on the line.

        • skdadl says:

          Oh, no — I don’t cross the line. I joke about some of this stuff some of the time because I know bits of the history, but the truth is that it makes me cry, even the history makes me cry. Sometimes I take comfort in acid wit like Voltaire’s “pour encourager les autres,” but mostly it sickens and saddens me to think that anyone is walking towards a healthy human body with the cold and rational intent to inflict damage on that body.

          We have to stop this, and by we I mean an international we. (Well, I have to, don’t I.) Some people grasped this problem in the C18; I thought the rest of us grasped it at the end of WWII … But here we are, doing it all over again.

    • skdadl says:

      lol. We must save that:

      Barnacles are exclusively marine (with the exception of the Vice President of the United States), and tend to live in shallow and tidal waters, typically in erosive settings.

      • Loo Hoo. says:

        And this:

        # Barnacle, (politics) a label used to describe the relationship between the Vice President of United States and the Legislative Branch of government

      • Adie says:

        Another characteristic is their hard, shell-like, seemingly impenetrable coating. But, in fact, once it’s removed, the innards may appear to the naked eye rather formless and much like a glob of innocuous goo.

        Well then… there we have it… a glob of goo covered with a hard shell.

        • LS says:

          Heh, heh…
          I wonder if Addington and Yoo are sitting at home on the john tonight thinking…I shouldn’t have said that…or I should have said that…or..something…they are semi-humanoids after all…

          • LS says:

            Oh yeah, and Yoo’s thinkin’…I shouldn’t have written those things…I shouldn’t have trusted those guys..I need amb*en to sleep tonight…oh crappola…Wahhhh, wahhhhhhh.

  94. Mary says:

    209 – Thanks. I went back and looked at the prior thread and Wasserman-Schultz and Ellison look like they (with Conyers too on the burying alive question) had some of the meat.

    From the summaries here, Addington’s forgetfulness certainly tracks the W-S questions that can really get his butt into trouble and drag a few others in with him. Why would a lawyer from OVP go to GITMO at all, much less 5 or so times? Did he take notes, keep notes, give reports, who to, etc. etc. They can’t do much in a hearing, but this is where he and Yoo et al are looking at trouble. The GITMO torture field trips aren’t writing a memo on hypotheticals.

    Addington won’t be able, if the right person gets him and with the right back up, to even make a minimally passable shot at his lack of memory crap. And if reports are right that his little trip included a whole cadre of lawyers, you have to wonder who was on the OTHER 4 or so trips? Nice to get that in the record.

    In any event, once they get to talking to everyone on the trip, it will be “interesting” to see how many are forgetful. Thompson. Goldsmith. Flanigan. Wray. Fisher. Gonzales. CHERTOFF. They all have lots of reasons to be forgetful, don’t they?

    • emptywheel says:

      For the record, at least one of those trips occurred in a prior Administration.

      The point is, we need someone to corroborate Beaver’s statement that he said anything goes.

  95. Mary says:

    241 – I think that would be plenty relevant, but I’m not sure what you can get from Yoo and Addington on it. I’m meanspirited in what I want to see, not just all the info that is the relevant info. I want to see the questions go to those places beyond their weak little claims of “all I did was write an opinion” and to the things where they can’t even claim that fig leaf.

    What did they brief Clement on before he argued to SUp Ct I wonder? Not so much questions on “were you ‘involved’ in destruction of tapes” (although that’s good to get out of the way, likely someone like Addington and a whiffle word like ‘involved’ are going to be able to duck on those things) Instead, where you aware of Gonzo memo to President citing concerns for future litigation under war crimes act? [follow ups to keep weaselonthewheel if he can duck that] When did you send out lit holds and to whom? After Rashul, did you send out lit holds? After Padilla’s lawyers claims? After Hamdi, after Hamdan etc. etc. After Hamdan, clear that violations of UCMJ could not be authorized by exec order or theory of illegal enemy combatant status – so did you take your information about non-UCMJ approved interrogation tactics being used and submit info to courts in any of the many pending cases? Did you summarize and send to AG? Did you summarize and send to DOJ lawyers handling those matters. What is your prof duty to tribunal when you becom aware of misreprsentations to court, yada yada

    I’m looking for them to go to the places where there are concrete things these guys could be charged with or lose their licenses for, and even if htey know they are only going to get the song and dance, make them realize what could be coming. And in particular get that twit Yoo on the record about his failure to notify tribunals and his failure to put out lit holda and his other and many activities that go beyond the Boalt Dean’s defense of ‘he only wrote memos’

    Who did give Yoo the letter from DOJ on privilege? Shouldn’t that have been Bradbury(OLC) or Mukasey and if it was Bradbury, is he even legally heading OLC or entitled to issue?

    For me, impeachment would start with Bradbury – strike at the heart of the beast that was used to generate the legal cover. THe fact that he is dubious on his claim to be able to continue as acting just feathers out grounds for impeachment that much more – this is one where Congress could say, “hey, you guys in OLC think you’re so good at interpreting what WE meant in our statutes, here’s OUR interpretation of what we meant —-you’re out.” Bradbury should have been done first IMO and started awhile back.

    But we get a lot more insight now into why Pelosi took impeachment off the table, don’t we. Franks floated that as a big ol cautionary – you guys keep asking questions we don’t want asked and we’ll start papering the Speaker’s role. Once the info on briefings came out, I was already in the camp that Nancy Pelosi probably has a lot more to cover up than even Jane Harman or Jello Jay. Obama (as Clinton would have) will make sure she has and keeps cover. WHich means no real investigations, even after the elections.

    • DWBartoo says:


      Mary, thank for all the insights contained in that comment as well as your earlier ones.

      You certainly confirm my suspicions, regarding Pelosi and I suspect your thoughts regarding Obama and accountability are absolutely spot-on, which is why we must not doubt, for even an instant, that we shall have to raise hell with him throughout his term, we shall have to lean on him and force him to deal with truth well before ‘reconciliation’ is in ANY way acceptable.

  96. Neil says:

    Why would a lawyer from OVP go to GITMO at all, much less 5 or so times? Did he take notes, keep notes, give reports, who to, etc. etc. They can’t do much in a hearing, but this is where he and Yoo et al are looking at trouble. The GITMO torture field trips aren’t writing a memo on hypotheticals.

    ooh, right on.

    The point is, we need someone to corroborate Beaver’s statement that he said anything goes.


    • LS says:

      Yoo made a comment that the memo could’t be emailed or anything like that…it had to be carried “by hand”. I’d guess that Addington may have hand-delivered the “orders” with the memo as an attachment…directly to Gitmo.

  97. randiego says:

    EW, the sheer volume of testimony that you captured during liveblogging is incredible. Another amazing feat. Beamish time?

    It’s been a busy day here at the toothpick factory – I can’t wait to get home tonight and dig in.

    Clearly we’ve been witnessing a collective turning point in the history and trajectory of the Nation – will the media even notice?

  98. Mary says:

    335 – the Beaver corroboration is just one of many points that could be nailed down from the trip that would go to direct consequences (which is where I am, although there is a lot to be said for just trying to get info too and build the whole picture). Amy discussion of utilization of non-UCMJ tactics, post Hamdan, those would be things he has a direct duty to come forward with if he was a witness to those kinds of tactics being used or to discussion about utilizing them, because Hamdan made it clear they are violations of law. The fact he thought they were legal at the time doesn’t absolve him of duty once a tribunal corrects his misimpression of what he witnessed. The only way he gets around that is the fifth. Or his preferred lack of memory route. How do you forget a trip that involved THAT MANY top Justice/WH lawyers? You had WH COunsel, DAG, DAG’s princ assistant, Yoo for OLC, War Council member Flanigan, Crim Div head, his girl Alice – jiminee. Who is going to believe he doesn’t remember that trip?

    Did they ask for follow up on the other trips? If he was digging way back to prior administration trips to obfuscate and parse on his responses, he really didn’t want to go where those questions were headed.

    • emptywheel says:


      I don’t think digging up the earlier trip was obfuscation. That’s his very nature–the reason I keep saying he might be light Aspergers. He did similar things in the Libby trial that adimtted really damning information. It’s just a filter issue for him.

      No, they didn’t ask for a followup abotu those meetings.

      Incidentally, he claims he doesn’t remember meeting Beaver on that trip to Gitmo. He says he met her much later at a meeting in Haynes’ office. Any idea what that might have been?

  99. LS says:

    Also, someone needs to follow-up on what “variations” of the final memo were handed out and what differed in them…how many, and to whom were they given. The attorney behind Nadler jumped out of his chair when he heard that and told Nadler to ask about it, but it didn’t go anywhere….yet.

  100. Mary says:

    338 – not EW, but Beaver is the low ranking lawyer who they asked to pen an opinion allowing the interrogation crew at GITMO to engage in assaults and other violations of the Uniform Code of Military Justice as “interrogation tactics.” She pretty much came up with nonsense (with some excuses that can be made on her behalf, but not good excuses) about how it was ok to violate the UCMJ in the interrogations.

    I think they never expected to be able to get anyone in the military lawyers (Addington has been at odds with them for a long history) to pen anything beginning to be as open ended as what she issued, so they jumped on it and clung to it and refused to let any other JAG or military get involved to override or supercede. So Beaver has been hung out to dry and knows it and she told Sands that when Addington et al came down to GITMO, they brought with them some new torture ideas too, and that they gave the “anything goes” verbal approval.


    • Neil says:

      Thanks! They got her to write a favorable opinion letter on torture, used it to justify the policy, defended it (not in terms of legal argument but in terms of defending it against criticism of her rationale) and then tried to hang it around her neck when the shit hit the fan.

  101. LS says:

    I hope someone in addition to Franks goes after Pelosi. She deserves it, and she should be kicked out of Congress post haste.

  102. Neil says:

    Before the Pentagon’s detainee interrogation policy was finalized in 2002, military officials—both supporters and opponents of the controversial methods being considered—concerned themselves primarily with protecting their organizations from scrutiny rather than with preventing the techniques from being instituted in the first place. One senior Pentagon official even recommended removing detainees from the US detention facility in Guantanamo Bay, Cuba, so that techniques that appeared to violate the US Uniform Code of Military Justice could not be attributed to his agency.

    On November 4, 2002, Sam McCahon, chief legal adviser to the Defense Department’s Criminal Investigation Task Force, raised objections to a legal opinion authored by Lt. Colonel Diane Beaverof the Army’s Judge Advocate General Corps that green-lighted a number of controversial interrogation tactics. In a memo to CITF Commander Brittain Mallow, McCahon wrote, “Any policy decision to use [techniques that could violate the Constitution’s prohibition on cruel and unusual punishment] will be contrary to my recommendation.”

    Avoiding Torture’s Taint
    By Brian Beutler, The Media Consortium
    July 26, 2008 LINK

    • DWBartoo says:

      Among the other problems facing the U.S. Military is the question of how willingly they have ‘gone along’. And it is a question that will likely lead to further questions.

      Should both Bu$sh Co and the Military ‘believe’ that an attack on Iran will make ‘this’ all go away, they are very mistaken indeed, and a number of the Top Brass might wish to polish up their resumes and start seeking some cushy lobbying sinicure, as well as put aside some of their own money for legal defense. It might be wise if their legal counsel were conversant in more than just ‘Murkan ‘English’, I would also suggest counsel with a somewhat different demeanor to Addington.

  103. LS says:

    Check this out!!! If you google Barnacle…first one up is Wikipedia and someone slipped this in already…ROLMAO:

    “A barnacle is a type of arthropod belonging to infraclass Cirripedia in the subphylum Crustacea, and is hence distantly related to crabs and lobsters. Barnacles are exclusively marine (with the exception of the Vice President of the United States), and tend to live in shallow and tidal waters, typically in erosive settings. They are sessile suspension feeders, and have two nektonic larval stages.”


  104. skdadl says:

    One thing that bothered me about today’s examination of Addington: if anyone was going to go after Addington’s position on the “unitary executive,” why did they not have chapter and verse to cite at him? I forget now where that came up (early), but he brushed it away far too easily by pretending he didn’t know what was meant. That wouldn’t happen if the questioners had the evidence.

  105. Mary says:

    351 – For some reason I thought that meeting (a later meeting in DC) was when she got the ‘great minds think alike’ statement from him.

    I can understand your point on that being his nature, but it is also just absolute classic witness evasion. And unlike the Libby case, this is one where his own ass is on the line. And notice how his relatively renowned memory (he sure remembered details of his Libby meeting and even the cases he discussed with Libby) got all fuzzy when the questions go to an area where he, personally, has a big prolbem? In LIbby’s case, his only big problem was if he lied. Here, his only big problem is if he remembers and tells the truth. I didn’t get the benefit of watching like you did and I’m not that great on tells anyway> I have tended to believe (JMO) and still do that all these guys, the Republican loyal Bushie cadre at DOJ, have only been motivated to do marginally decent things when they were looking at direct personal consequences.

    So sure Addington told the truth with Fitzgerald, bc the equation was that liability came with lying under oath, but he was pretty clean on the overall scheme there. But where he is in the thick of the scheme, he just become forgetful or parses to use up time on irrelevancies. But again, I didn’t see him and don’t know that for a fact, it’s just my take from the bits and pieces.

  106. Mary says:

    351 –

    Beaver will recall passing Vice President Cheney’s chief of staff David Addington in a Pentagon hallway shortly after she submitted the memo. Addington smiled at her and said, “Great minds think alike.”

    I guess depending on your definition of “much later” he might parse that, but it looks like it would have been maybe Novemberish/Decemberish 2002? No date in this link, but I think maybe it was when Haynes was making his lists.

    • skdadl says:

      If we’re talking barnacles, I guess we can’t call this a meme with legs. But it does seem to be gaining some traction on the innertubes.

  107. bmaz says:

    Mary above @332 went a fair distance in asking the question I have.

    Why would a lawyer from OVP go to GITMO at all, much less 5 or so times?

    Real good question actually. Seriously. In what capacity, and for what legitimate purpose, was the Vice-President’s lawyer involved? The President, the DOD, the CIA, the DOJ, perhaps even DHS; those agencies and offices all are involved or participating to some extent in the activity at Gitmo. Unless the President is incapacitated under the 25th Amendment (and other than the standard Bush retardation, there is no evidence the President was incapacitated), what involvement did the VP have?

    Addington himself said VP is not a part of the executive etc., what role did the OVP have there? If you assume Addington’s paradigm of what the OVP is, then he had no legitimate reason to be going to Gitmo. He was on a junket! He was an observer, not a counsel of record for any participatory party. A fact witness.

    • klynn says:

      Thanks bmaz ( and Mary).

      That was one of the most disturbing parts of his testimony for me. Asked myself that all day long…a, “What the H— was he doing there…and THAT many times?”

      A fact witness…hmmm…

      We can work with that…

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