The Strange Case of Hiwa Abdul Rahman Rashul (Part 2)

In part 1, I laid out the facts surrounding the detention and illegal transfer of Hiwa Abdul Rahman Rashul. In this post, I want to demonstrate why this case matters. There is a pattern to the Bush/Cheney Administration’s illegal usurpation of executive power. Because the pattern broke down in this case, the strategy behind that power grab is laid bare. The struggle within the administration over the disposition of Rashul and the way it was resolved helps to illuminate the true nature of the current regime. Perhaps this case creates an opening to unravel the authoritarian infrastructure that has been built within our country in the last eight years.

Part 2: Why it matters

In the grand scheme of things, focusing on this case might seem a little like busting Al Capone for tax evasion. The Bush/Cheney Administration has institutionalized the most egregious extralegal executive abuses in our nation’s history. As matters of policy, they’ve launched a war of aggression under false pretenses, violated the most basic human right treaties, trashed the Fourth Amendment, denied the right of habeas corpus to citizens and non-citizens alike, set up secret prisons, disappeared their presumed opponents around the world, tortured the innocent and presumed guilty alike, conducted sham military tribunals against the underage and the mentally ill, and, worst of all, claimed the power to indefinitely detain anyone in the world, including U.S. citizens, without any external check whatsoever. And that’s just the stuff they have admitted to.

If we want to undo all this, and I very much do, we’ll have understand how they were able to accomplish it. I’m not going to rehash the sociopolitical environmental conditions that the administration took advantage of. Folks here understand that the generalized fear and anger after the attacks of September 11, 2001, the fecklessness of the Democratic party, the docile and compliant traditional media, the tight discipline within the Republican party, and the latent authoritarian impulses of a sizeable minority of the country created the necessary conditions for what happened. I want to focus on how the administration manipulated secrecy, its own people’s psychology, and the instinct for institutional self-preservation to manage a shifting set of narratives that allowed them to follow a deliberate strategy of expanding executive power and upsetting the constitutional balance of government while evading responsibility and steam-rolling all opposition. Then, I hope to show how this case exposes some chinks in the rather substantial armor of these malefactors.

Competing Narratives

One of the biggest problems in telling the full story of the Bush/Cheney Administration various illegal activities is distinguishing between the various narratives surrounding each episode. In every case, there is the story of the actual events are that always hidden behind a veil of secrecy. Then there is the momentary political scandal caused by a leak or leaks. The traditional media and the political opposition typically focus on that narrative only until there is an administration response. The administration responds with a modified limited hangout, selectively declassifying or leaking some information and augmenting it with false or misleading public statements to create an alternative narrative to defuse the political scandal. Later on, additional information comes out that contradicts the official narrative, but by that time, the issue is ‘old news’. Only after a series of scandals could anyone notice that there is a pattern to the actual events, the leaked narratives and the official narratives that help illuminate the strategy that the administration used. Keeping in mind that we always have to be alert to the unreliable narrator problem, let’s take a look at these narratives in the order they come into the public consciousness, the scandal, the hangout, and what really happened.

Narrative 1:   The Scandal

The most easily overlooked, and most interesting, aspect of the scandal narrative is that it is almost always driven by institutional self-preservation. In this instance, the confirmation of the existence of ghost detainees in Iraq was a side effect of Gen. Taguba’s investigation of the Abu Ghraib scandal. The original leakers wanted to separate themselves from the Abu Ghraib scandal and prove they had explicit orders from higher-ups to hide Rashul. The first story about Rashul starts like this:

The top U.S. commander in Iraq, Lt. Gen. Ricardo Sanchez, issued a classified order last November directing military guards to hide a prisoner, later dubbed "Triple X" by soldiers, from Red Cross inspectors and keep his name off official rosters. The disclosure, by military sources, is the first indication that Sanchez was directly involved in efforts to hide prisoners from the Red Cross, a practice that was sharply criticized by Maj. Gen. Antonio Taguba in a report describing abuses of detainees at the Abu Ghraib prison near Baghdad.

Whatever the triggering event, whether there’s a whistleblower, an inadvertant disclosure, or just someone with a score to settle, the first big story in the mainstream press is usually shaped by a bureacracy trying to protect itself. Which mean the story always has one big revelation and it almost always points the finger at political appointees. That naturally leads to an official administration response.

Narrative 2: The Modified Limited Hangout

This is where the Bush/Cheney team has shown real innovation. The typical script for goes like this. You put a Cabinet-level official (or if you do it on background, the infamous Senior Administration Official or SAO) out front, backed up by some guy in uniform. After the obligatory ‘the terrorists are gonna kill us all’ hand-wringing, the SAO confirms some of the details from the scandal story and adds a few new juicy bits, but denies or ignores significant elements of the previous narrative. The situation is presented as perfectly normal, at least for a post 9/11 world, and besides, the lawyers signed off on the whole thing, so no one could possibly question the purity of the administration motives, except the partisan media and their anonymous sources who are obviously from the Democrat party. Any uncomfortable questions are avoided because the answers are, of course, classified. The main purpose of the new narrative is deflect attention away from the most damaging aspects of the story. A key function of the cover story is to allow the policymakers to hide behind the lawyers and the lawyers to disclaim any responsiblity for the policy.

Narrative 3: What really happened

Of course, the cover narrative never satisfies everyone. For example, Philippe Sands’ dogged investigation of torture at Guantanamo led him to uncover the facts behind the institutionalization of torture there. Sands’ article for Vanity Fair exposing the false timeline was really the inspiration for my analysis of the Rashul case. Valtin’s yeoman work in ferreting out the fact that SERE techniques were the first choice for interrogations by some in this administration provided another clue. Ultimately, I came to realize that there was a pattern, even in the actual narratives.

In a comment to my previous post, Ondelette gets this almost exactly right, so I’ll quote that:

I think your timeline on Rashul is probably quite correct and very devastating. But I tried to do the ‘when did the document come and when did the illegal actions come’ thing several times now, and it turns out as information seeps out, every time line is similar to yours with Rashul.

The conduct begins.
The administration wishes to make the conduct the norm.
They solicit an opinion from OLC, who is led to believe that the conduct is only being contemplated.
The OLC writes a memorandum.
Written policies flow from the memorandum.

The one thing I think Ondelette gets wrong is the bit about the OLC thinking that the conduct is only being contemplated. I think the available evidence points us in a different direction. In this case, Goldsmith clearly knew that Rashul was already in Afghanistan when Gonzales asked for the opinion. Even before he was confirmed, when Goldsmith gets the call from Philbin it’s described as urgent. You don’t make calls like that for contemplated action. Those issues become urgent after the fact when someone questions the legality of the action. Compare this to what we know about the warrantless wiretapping. The program was started, the FBI and others questioned the legality, and then the OLC opinion was issued to shut down the debate. If you look closely at Yoo’s DOD torture memo, you find some very direct coorelation between what had already been done at Guantanamo and the specific actions he immunized. This coorelation goes beyond the techniques documented in the request from Diane Beaver to Rumsfeld to include ‘unauthorized’ techniques used on al-Qatani and others. Here’s how I would alter Ondelette’s outline:

  • An illegal policy is adopted. 
  • The policy is implemented.
  • The policy is challenged.
  • The OLC is presented with the Hobson’s choice of authorizing the policy as already implemented.
  • The OLC writes an opinion.
  • The policy becomes ‘legal’.
  • A select few in Congress are notified about the policy, but only in broad outlines and under strict secrecy.

The OLC was repeatedly confronted with being asked to come up with a legal justification for a ‘vital’ program in the so-called War on Terror. Goldsmith’s descriptions of his interactions with David Addington are revealing. On one occasion, he quotes Addington thusly:

If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.

Waving the bloody shirt was even more effective for the administration internally than it was politically. Despite all of Cap’n Jack’s protestations to the contrary, he effectively caved to this pressure with his draft opinion of March 2004.

Rashul: Frayed Narratives

The Bush/Cheney Administration has been remarkably effective in creating a consistent false narrative that disguises the true nature of their regime and protects the perpetrators from being held accountable. In the case of Hiwa Abdul Rahman Rashul, there are some interesting holes in the cover story and breakdowns in the Administration’s execution of their standard game plan that leave an opening for an effective investigation. The first failure of execution was Goldsmith’s initial unwillingness to bless the rather obvious breach of the Geneva Convention. By bringing Rashul back to Iraq and hiding him from the ICRC, the administration engaged in conspiratorial conduct. By renewing the program of disappearing Iraqis to Afghanistan on the basis of a DRAFT opinion from Goldsmith, the administration showed that they considered legality nothing but a formality. Finally, the cleverest thing part of the Bush/Cheney Adminstration game plan for implementing their tyrannical policies was the way they implicated Congress in their actions by manipulating Congressional notifications. I suspect that Congress is in the clear on this one. During the Rumsfeld modified limited hangout presser there was this exchange:

            SEC. RUMSFELD:  And as we get more information, we’ll make it available.  The Congress has been briefed extensively on this, as I understand it.  No.

            MR. DELL’ORTO:  Not this particular case, as far as I know.

            MR. DIRITA:  Yes.  No, we’ve done some notifications to the staff on the Hill, both us and the CIA, with respect to the details of this particular case.  And as we get more, we will provide it.

That’s clear as mud. If there were notifications, it’s likely they were done in June 2004 rather than July 2003 when the deed was done.

In that same presser, Rumsfeld openly implicated himself and George Tenet in the coverup. The CIA OIG criminal referral implicates the highest levels in the DOJ. The available information leaves a number of avenues open for Congressional investigation. Might I suggest to Sen. Leahy that he add that criminal referral to the list of documents he’s been asking for? Indeed, I will. At the same time, I’ll remind the Obama camp of that promise they gave Will Bunch and that they will likely be in charge of all these records in a few months. I’ll also remind the folks here that our duty as citizens includes keeping the pressure on ‘our’ guys to do the right thing. I’m not naive enough to think that Obama will do much about any of this unless there’s some pressure. In fact, I’m old enough to remember that the best conditions for limiting Executive Branch power are when there is a Dem President and Dem Congress. We need to help Leahy, Levin, Waxman, and the rest that they need to keep pushing.

Here’s my bottom line. There’s plenty of evidence of war crimes for an international tribunal to start an investigation of Bush, Cheney, Rumsfeld, and the whole crew in February 2009. I think an international tribunal, as unlikely as it seems, would be a disaster. It would ignite a jingoistic furor in this country. These guys are our criminals and our responsibility. It’s time for America to face up to what we’ve allowed this country to become. Unraveling some this big has to start with a single thread. I think that thread just might be asking what happened to Hiwa Abdul Rahman Rashul and what are we going to do about it?


If you really want to understand what Cheney’s been up to the last eight years, you need to go back read the Iran-Contra Congressional Minority Report that he and David Addington wrote. The goal has always been as much about expanding Executive Branch power as anything else. I’m sure that Bush and Cheney get off on the torture, but for Cheney at least, that’s secondary to the effort to establish what is effectively an elected constitutional dictator. That’s another thing Cap’n Jack never understood. It was never really about protecting America from terrorists. It was about using that as an excuse to push the real agenda.

[WilliamOckham makes an excellent, and absolutely critical, point in the update paragraph immediately above about the overarching plan of Cheney to retake, and expand further, Executive Branch power that was spelled out in the Iran-Contra Congressional Minority Report. And that is exactly what we have been witnessing in the announcement by the Administration of last minute wild expansion of domestic spying and datamining capabilities, and as discussed in the two "FISA Redux" posts here and here. – bmaz]

  1. plunger says:

    Folks here understand that the generalized fear and anger after the attacks of September 11, 2001,

    Directed by Dick Cheney on the morning of 9/11, as testified to under oath by Transportation Secretary, Norm Mineta.

    the fecklessness of the Democratic party,

    As a direct result of Rumsfeld’s Anthrax attack against Daschle and Leahy.

    the docile and compliant traditional media,

    As a direct result of Rumsfeld’s anthrax attack against Brokaw.

    the tight discipline within the Republican party,

    As ordered by their neocon/Rockefeller overlords.

    and the latent authoritarian impulses of a sizable minority of the country created the necessary conditions for what happened.

    As evangelized by Michael Ledeen on behalf of Likud, David Rockefeller, George HW Bush, Ken Lay, Richard Cheney, Donald Rumsfeld, The Crown, Oil, Banks and others.

  2. phred says:

    WO, thanks for the excellent posts. Given the conduct of the Dem leadership, what makes you think they will respond to pressure on this case? They have had ample opportunities to pursue all manner of illegal conduct by this administration and have resolutely refused to do so. Cass Sunstein (Obama’s legal advisor) is running around telling everyone to let bygones be bygones after the election — can’t criminalize politics and so forth. Pelosi has worked assiduously to deflect any attempt to hold officials responsible for their criminal actions. Congressional Dems are more than happy to hold hearings to make the Rethugs look bad in the hopes of electoral gain, but they stop short of taking any real action. Over on TPM yesterday, I saw Leahy quoted as saying the administration’s stonewalling was “unacceptable”. I have no idea what that word means to him, since he has done nothing whatsoever to enforce Congress’ prerogatives.

    I’m not trying to be an unmitigated pessimist (although I have been quite uncharacteristically grumpy since the FISA debacle). I am genuinely trying to figure out how to apply the pressure that is needed to get our elected officials to get the ball rolling on criminal investigations. They simply do not respond to the public, whether in response to the desire of the majority to end the war or to uphold the rule of law. The two parties have created a system where elections are driven by fear — if you don’t elect our guy, the other will be much worse — and yet neither actually represents the public interest. It’s hard not to get depressed.

    So, do you have any insight of how we can motivate Leahy, Levin, and Waxman to finally follow through on an investigation, rather than just put on a show?

    • WilliamOckham says:

      You raise a valid question. The ineffectiveness of investigations to date derives from a number of different factors. The Dems and their allies didn’t (and to a large extent still don’t) understand the nature of the game the administration is playing. One thing I should have included in the post is the link to the Dick Cheney/David Addington Iran-Contra Minority Report. It wasn’t obvious back then, but if you read that report in the light of what’s gone in the last eight years, you start to understand what they’re really up to.

      Except in the case of warrantless wiretapping, I don’t think it’s fair to say that the Dem leadership has refused to pursue investigations. They’ve just been out-maneuvered. They made the critical mistake of assuming that the Bush/Cheney team was acting in good faith.

      I think it’s important to find a foothold into the criminality where the Dem leadership hasn’t been implicated by their previous acquisience. That’ why I’m pushing the Rashul case. Because the administration saw that operation as an extension of their existing kidnapping and torture program, I doubt they notified Congress.

      As to Sunstein’s view, well, politicians operate within the boundaries of the perceived Overton window. On issues like this, the Overton window isn’t created by the public at large, but the intelligentsia. 20 years ago folks like us had no way to influence that, but today we can work on the Marty Ledermans and Jack Balkins of the world. I’m not saying this will be easy, but if McCain wins it will be orders of magnitude more difficult. Sunstein is one thing, the crazies that McCain listens to are a whole ‘nother ball of wax.

      • phred says:

        Thanks for the reply. I am curious about this assertion though:

        The Dems and their allies didn’t (and to a large extent still don’t) understand the nature of the game the administration is playing.

        On what do you base that observation? All too often around the lefty blogosphere I have seen people attribute the failings of the Dems to either incompetence or blackmail. The “outmaneuvered by Rethugs” or “what have they got on Pelosi” arguments. I have yet to see any evidence to prove either of those two hypotheses.

        While I agree that McCain would certainly be worse than Obama, I have seen nothing to suggest the Dem leadership ever intends to pursue any meaningful investigation of criminal conduct within the Bush administration.

        As you also note:

        One thing I should have included in the post is the link to the Dick Cheney/David Addington Iran-Contra Minority Report. It wasn’t obvious back then, but if you read that report in the light of what’s gone in the last eight years, you start to understand what they’re really up to.

        This was laid out clearly in Charlie Savage’s book, “Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy” that came out last year. You cannot convince me that Dem staffers inside the Beltway haven’t read it and remain in ignorance of the Bush/Cheney agenda on this front. As Savage points out, all administrations following the Second World War have pressed for greater Presidential power. Cheney has pushed this too an extreme, but it is not fair to say that only neocons crave this kind of power. Since gaining control of Congress, the Dems have done nothing to push back on the abuse of power by the executive and it seems evident to me (in light of Obama’s reversal on FISA) that they believe they can turn that power to their advantage in a Dem administration.

        What was it Gandalf said to Frodo when offered the ring of power, something along the lines of… “You cannot offer this to me Frodo, believe me when I say I would try to use the ring for good, but through me it would work great evil”. I do not trust either party with unchecked power and I have yet to see any evidence that the Dems desire it less than the neocons.

        • WilliamOckham says:

          Here’s what I think the Dems (and most everybody else for that matter) don’t get. Dick Cheney doesn’t accept the current constitutional order. He sees himself as some sort of latter-day Caesar Augustus, replacing a fractured and ineffective system with a vigorous dictatorship while maintaining the outward forms of republican government. He wins when the political class accepts that his positions are within the norms of our social contract. They aren’t. What real limits are there on the Executive when they claim to have the power to designate anyone as an enemy combatant and detain them indefinitely? These people argued that position in open court and basically nobody in the political class raised a peep of objection. Impeachment should have started right then and there.

          Sure, they were forced to back down on that one (but you should note that they made sure there was no judicial precedent set in that case), but it looked like we were one heart attack away from a Supreme Court that would have sold us all down the river.

          • phred says:

            I agree with your assessment on Cheney’s preferred form of government. Where I differ is that everyone else doesn’t get it. I think they do. But I am happy to agree to disagree on this point.

              • phred says:

                klynn, thus far I have only been talking about the Dem leadership. I assume the 30% you are referring to is the portion of the electorate that still supports BushCo. While they may not know or care about the details of Cheney’s machinations, I would argue that they fully support an authoritarian form of government, provided that the authoritarian in question is one of their own.

                • klynn says:

                  I was thinking Dems, not Dem leadership (the Bushies are a given historically as you noted). In the context of Dem leadership, I think key leaders are aware but not making the needed moves — but not due to a lack of awareness as to the Bush-Cheney gaming. The -30% I’m noting are those Dems who ARE clueless in many ways and not prepared to acknowledge the true criminal nature of any of this.

                  I am genuinely trying to figure out how to apply the pressure that is needed to get our elected officials to get the ball rolling on criminal investigations. They simply do not respond to the public, whether in response to the desire of the majority to end the war or to uphold the rule of law. The two parties have created a system where elections are driven by fear — if you don’t elect our guy, the other will be much worse — and yet neither actually represents the public interest.

                  We need to start asking the “Why?” questions in regards to the rule of law in a way that gets attention…

        • Leen says:

          What a post WO. I feel as though there is sanity and logic in the world when I read your post.

          But the line that Phred referred to jumped out at me when I read your response. I think some of the Dems may have unconsciously become tangled in “the nature of the game this adminidstration is playing”

          WO I deeply appreciate your brilliant efforts to hold this administration Accountable. Thank you.

          I continue to volunteer for the Dems in Denver and Boulder (have been for a week and a half) Some of the chores have been handing out the credentialed tickets for those who will attend Obama’s acceptance speech, meeting and greeting early arrivers, filling the Press’s welcome bags(mostly filled with crap that will end up in their hotel garbage cans). Meeting lots of folks from around the country who will be volunteering in Denver this coming week. Obviously lots of preparation goes into these conventions (this is my third one during my life) that include the volunteer hours of thousands of volunteers (they are expecting 14,ooo volunteers).

          While the excitement and enthusiasm is palpable. I so wish folks including the media, bloggers, volunteers, congress folks could think more about checking our ego’s at the door.

          I have been interacting with voters around the Boulder (Obama country) Colorado area (Lyons, Longmont, Lafayette, Broomfield). These areas are going to be tough for Obama to win. As insane as it is that this race is going to be close. It is going to take all of us doing our parts the next two months for Obama to win.

        • bobschacht says:

          Hi, phred! You wrote,

          What was it Gandalf said to Frodo when offered the ring of power, something along the lines of… “You cannot offer this to me Frodo, believe me when I say I would try to use the ring for good, but through me it would work great evil”. I do not trust either party with unchecked power and I have yet to see any evidence that the Dems desire it less than the neocons.

          This is basically the same thing St. Paul wrote, to the effect that “when I try to do good, evil lies close at hand.” I’m at work now, away from my biblical references, but that whole passage in Paul’s letter is remarkably insightful, and should be required reading for every politician. I was thinking about it when Obama was asked the question about Evil on national teevee recently.

          Bob in HI

          • phred says:

            Hi Bob! Nice to see you : )

            I’ll admit it is a teeny bit embarrassing that Tolkein rolls off my tongue easier than Paul — nonetheless, guilty as charged ; )

            When you get home from work, I hope you come back and share that quote.

            • bobschacht says:

              OK, I cheated and went to an online Bible resource. Here’s the quote, from Romans 7:

              15For I do not understand my own actions. For(T) I do not do what I want, but I do the very thing I hate. 16Now if I do what I do not want, I agree with(U) the law, that it is good. 17So now(V) it is no longer I who do it, but sin that dwells within me. 18For I know that nothing good dwells(W) in me, that is, in my flesh. For I have the desire to do what is right, but not the ability to carry it out. 19(X) For I do not do the good I want, but the evil I do not want is what I keep on doing. 20Now if I do what I do not want,(Y) it is no longer I who do it, but sin that dwells within me.

              21So I find it to be a law that when I want to do right, evil lies close at hand. 22For(Z) I delight in the law of God,(AA) in my inner being, 23but I see in my members(AB) another law waging war against the law of my mind and making me captive to the law of sin that dwells in my members. 24Wretched man that I am! Who will deliver me from(AC) this body of death?

              This online version includes footnotes and cross-references.

              Um, for the uninitiated, these references to the “Law” are to the Law of Moses, which usually refers to the first 5 books of what Christians call the “Old Testament,” and what Jews may refer to as the Tanakh.

              Bob in HI

              • phred says:

                Thanks Bob, I appreciate your looking that up. You have to admit though, Tolkien was more succinct ; )

                • bobschacht says:

                  Hey, phred, when it comes to writing literate English, few are as good as Tolkien! And when it came to writing literate Greek, St. Paul was not exactly a role model. But Tolkien did, after all, have the advantage of having read Paul’s Letters.

                  Bob in HI

      • Leen says:

        Have the deepest respect for your insights and professional opinions. But what would have been an indication that the Bush administration was ever acting in “good faith”? They ignored pre attack warnings, they were focused on Iraq long before the attck on 9/11, they lied and lied and lied about a connection between the two, they used the attack to invade Iraq , they seemed to have purposely flubbed the invasion, they tortured, they disbanded the Iraqi army, they conducted a secret wiretappping program without fulfilling their responsibility to inform the intelligence committee, there by undermining congress etc etc.
        What are the hard facts on the ground that would have ever indicated “good faith”?

        • WilliamOckham says:

          There are no indications that the administration was ever acting in good faith. But for years after 9/11, most people couldn’t even imagine that the Bush/Cheney Administration would use the attacks as an excuse to push this type of agenda. It was, and for some people really still is, simply unfathomable. Self-delusion in the face of evil is the easiest way out.

  3. MarieRoget says:

    Thanks WO for Pt. 2 on this most important topic, & to both you & bmaz for all the excellent posts this week.

    Just catching up on them all this a.m., & my hat’s off to you both.

  4. plunger says:


    Excellent road map for “discerning reality,” much to the chagrin of Rove, who is the master of these very techniques and procedures your have outlined so well.

    Yes, these same techniques apply perfectly to the warrantless wiretapping CRIMES, and as I’m sure you’ll agree, to L’Affaire de Plame.”

    Closing down our best source of covert intelligence on WMD in the Middle East by making its covert status public – during a time of war – is akin to revealing troop movements and positions to the enemy – during a time of war, ONLY WORSE. It’s TREASON on it’s face. Doing so for POLITICAL reasons is IMPEACHABLE.

    BUSH, CHENEY, ROVE & LIBBY all knew that Plame was a covert agent – and a key enemy if their lies were to succeed. Everyone in the WHIG knew. They all conspired to prevent the truth about WMD from being made public. When referring to Wilson, each of them at one time or another referred to him as “a Democrat.” That’s POLITICAL. That’s ILLEGAL.


    July 18, 2003:

    REPORTER: When was it actually declassified?

    McCLELLAN: It was officially declassified today.

    What does “Officially” declassified mean? Describe the entire process of Declassification. Clearly it does not occur simultaneously as the thought leaves Bush’s lips, since the thought to declassify it occurred some days prior to the 18th. Is there a category called “UNOFFICIALLY DECLASSIFIED” that occurs somewhere in between the thought and the “OFFICIAL” designation, which in this case is claimed to have been attained on the 18th?

    Describe the review process and the paper work entailed to move Classified materials into OFFICIALLY DECLASSIFIED status. Who are the people that are typically involved in achieving OFFICIAL DECLASSIFICATION STATUS? Were these procedures followed in the Plame case? On what day did the process begin?


  5. masaccio says:

    I think the key document is the OLC memo on the term “protected persons”, which was issued at the same time, March 18, as the March 19 draft memo. If Goldsmith in effect opined that Rashul was a protected person, the problems are serious, and it isn’t clear how Goldsmith protects himself from the draft memo, given that he was contacted about the issue before he was confirmed.

    Congress should insist that this one be released publicly.

    • WilliamOckham says:

      Goldsmith had already ruled that Rashul was a protected person in October of 2003. The Geneva definition of protected person is so clear that there really isn’t any way around it. You can even ask John Yoo.

  6. alabama says:

    By way of a slightly different perspective on this subject, so insistently complex, and so faithfully pursued hereabouts:

    So far as I can tell, all the digging done thus far (with one exception) has had a minimal effect on the bad actions of the administration: in the face of all findings, the leaders continue to operate as they always have–unaccountable, with absolute disdain for the human and civil rights encoded in the Constitution and in any number of international agreements. They’re proud of this. It’s their major achievement, finally–far more important than any military adventuring, any profiteering, any degrading of our bureaucracies.

    An ongoing exhibition of accomplished unaccountability is the Great Project of the Bush administration. No matter that the military adventures fail, or that the profiteering can, and will be, recorded and acted upon, or that the bureaucracies will recover their morale, their missions and their competence. The Great Project stands alone, and stands as a fait accompli. It has reduced all inquiry to the reporting of misdeeds after the fact, even as the Project proceeds unimpeded.

    Were it not for–

    the signal, the extraordinary, the undeniable, and essential counterstroke of Libby’s trial, conviction, and disbarment as an officer of the court. This is not just an incidental misfortune for the Great Project: like a kind of beacon, or satellite image, it captures, forever, and within the instruments of the Constitution itself, the utter illegality, violence, and illegitimacy of the Great Project. Caught in the act by this single counterplay, Bush and his crowd have been consigned forever to the shithole of American history. No matter if this takes a while to make itself clear to the world at large: it is an incontestable event that matters, finally, just as much, in its way, as the Watergate hearings or the Senate’s censuring of McCarthy.

    But there’s an important fact to remember: Libby was brought down by the bureaucrats who decided to make the effort, who made sure that an effective prosecution would be put into play, and that nothing would frustrate its essential mission–which I would call the Delegitimizing of the Great Project.

    Even thus it went with McCarthy–brought down, in truth, by Eisenhower and his junior colleagues in the DoD–and with Nixon, brought down, in truth, by Mark Felt and his colleagues in the FBI, along with other players too numerous to recall.

    This all leads me to a (for me) unfamiliar line of thought: our codes of civil liberties and human rights do not “preside” over the conduct of our political powers; they merely serve as instruments of warfare in the power-plays of governance itself. And since this point is doubtless a very old, and overworked, commonplace in the field of “Political Science,” my comments here can only prove beyond any doubt that I’m not, myself, a “Political Scientist”.

  7. klynn says:

    If I might suggest, we all print a hard copy of WO’s posts and start mailing them to our House and Senate representatives. Perhaps print part one and then part two and mail them separately. I would like to see 1 million participants. I would suggest adding a cover note stating it is time to bring back Constitutional leadership that each Congressional member was tasked by vote into office, to uphold and protect. And then ask the question:

    It’s time for America to face up to what we’ve allowed this country to become. Unraveling something this big has to start with a single thread. I think that thread just might be asking what happened to Hiwa Abdul Rahman Rashul and what are we going to do about it?

    Thank you WO. Great work.

    • JClausen says:

      I like your idea, klynn.

      Wonderful posts this week, WO and Bmaz.

      This place keeps me relatively sane.*g*

      Thanks JC

  8. BoxTurtle says:

    First, my complements to WO for a most excellent set of articles. Make sure you’ve got copyright on ‘em, as I think there will be some interest in reprinting them in the MSM sometime next year.

    However, you say:

    I think an international tribunal, as unlikely as it seems, would be a disaster. It would ignite a jingoistic furor in this country. These guys are our criminals and our responsibility. It’s time for America to face up to what we’ve allowed this country to become.

    I think a furor would be a GOOD thing. We could use a little soul searching, especially those good folks who honestly believe “just following orders” is an excuse. What I think will happen is that BushCo will use pardon power and national security to avoid answering for their crimes in American courts. We’ll have to let the rest of the world clean up our mess for us. Hopefully, that’ll be embarassing enough to get us to fix our system so it doesn’t happen again.

    Boxturtle (Still dreams of seeing Cheney & Bush perpwalked across the tarmac at The Hague)

    • Nell says:

      The threat of an international tribunal would be a good thing only insofar as it spurred the political class here to move forward with U.S. trials. In fact, a sequence like that happened in Chile with Pinochet. The Spanish court’s actions spurred the Chilean politicians who had been unwilling to deal with the junta’s crimes to take some long-overdue actions (though the political space necessary to do so had been created by popular action and Pinochet’s own miscalculations, in the 1988 plebiscite).

      The U.S. analogy is: the necessary political space in which to hold Cheney, Bush, Rumsfeld, Gonzales, Addington, and others accountable will be opened if Obama takes office, especially if he does so with a filibuster- and Lieberman-proof Senate majority. But it will take sustained popular agitation to start the impeachment process. (Many, many otherwise very aware and knowledgeable people don’t know that impeachment is possible after officials leave office, so imagine how small a part of the public is aware of this crucial fact.)

      It might take the threat of international criminal processes to get the domestic accountability going — but it would be far better if we can accomplish it without such a spur. We’ve already allowed too much inaction due to concerns that impeachment not be permanently tarred as a “partisan witch hunt”. It would be seriously wrong to allow a situation to develop where Americans band together against outside “attack” on these issues. It must start here.

      • Leen says:

        I so appreciate John Dean’s efforts to make us aware that lower level officials (Feith, Bolton, Wolfowitz) can and should be “impeached” so that they are unable to roll back into future administraions.

        Refocusing the Impeachment Movement on Administration Officials Below the President and Vice-President:
        Why Not Have A Realistic Debate, with Charges that Could Actually Result in Convictions?
        By JOHN W. DEAN
        Friday, Dec. 15, 2006

  9. Rayne says:

    The truth of Cheney’s desires can be pieced together with a few texts:

    – Shock Doctrine: the rise of disaster capitalism
    – Confessions of an Economic Hit Man
    – The Secret History of the American Empire: The Truth About Economic Hit Men, Jackals, and How to Change the World
    – the collected works of Leo Strauss, Machiavelli, Friedman and Chomsky

    The Cheneys of this world — universal fascists like Michael Ledeen — want the illusion of democracy without the actual restraints that it brings. They want a free market and the destructive void it both requires and creates. Fighting poverty and hunger are only marketing slogans.

    There’s a reason why wealth only starts at 5 million in the mind of McCain; that’s the point at which one can enter the Cheneyites’ club.

    Cynical? You bet — but it happens even at ground level that democracy only exists for those who can buy it.

    • cleanth says:

      Why do you mention Noam Chomsky in THIS context?

      As for Leo Straus, I have been reading and re-reading Strauss for half a century in the context of my early degree in political philosophy, and I believe that the charge that Strauss is the “father of contemporary neoconservatism” will not stand close scrutiny.

      Would you care to go into your objections further?

  10. Boston1775 says:

    WilliamOckham says:
    Finally, the cleverest thing part of the Bush/Cheney Adminstration game plan for implementing their tyrannical policies was the way they implicated Congress in their actions by manipulating Congressional notifications.


    I’m very interested in this. Do you know if there is published work about their clever ways of disabling Congress by claiming that Executive notifications implicate Congress in the very illegalities Congress might otherwise have investigated?

    Thanks for these posts. Your knack of taking difficult facts and constructing a narrative which allows a person to relax a little is valuable.

    • bobschacht says:

      I’m very interested in this. Do you know if there is published work about their clever ways of disabling Congress by claiming that Executive notifications implicate Congress in the very illegalities Congress might otherwise have investigated?

      Don’t forget that Cheney served in Congress before moving over to the Executive Branch, and he was a careful student of the levers of power while there. I suspect that any thorough bio of Cheney would also discover that he was frustrated by the complexities of Congress– i.e., by the wheels of democracy– and that is why, instead of moving up the ladder of seniority in the House, he gravitated to the Executive Branch, where he could deliver orders of a kind that he could not give, as a legislator.

      Bob in HI

      • Minnesotachuck says:

        instead of moving up the ladder of seniority in the House, he gravitated to the Executive Branch, where he could deliver orders of a kind that he could not give, as a legislator.

        IIRC, he did move up, and was minority whip when he resigned his seat to become SecDef in the Bush 41 administration.

  11. Peterr says:

    What a rundown! Thanks, WO.

    What strikes me as most critical in this mix of narratives is #2. The key innovation of the BushCo version of the modified limited hangout (as oppose to the Nixon version) is the combination of holding back info deemed “classified” along with the use of unnamed SAOs speaking on background.

    The refrain “It’s classified” brings up the fear element for the broader public. It hypes the story (whatever the story is), and suggests that the adminstration is in control of things. Thus, it simultaneously says “be afraid, everyone . . .” and “. . . but we’ve got secret stuff to deal with it. Aren’t we great?”

    This jacks up the media’s desire for more information. It makes them desperate to get the back story, and thus more and more vulnerable to being spun by unnamed SAOs who demand anonymity before telling their story. The lack of a name makes it impossible to easily challenge the assertions or judge their credibility. What political agenda does this SAO have? How does that mesh with last week’s SAO? The consistent and enormous use of anonymous SAOs to get information out is all about controlling the message as much as possible, and BushCo has mastered its use.

    The media, desperate for scraps of information, seem all to ready to grant confidentiality, even when it is not warranted. They are presented with a choice: “Either keep my name/position/dept out of your story, or I’ll take it to someone else who will.”

    Executive branch folks who speak off the record because they are blowing the whistle on something are one thing; SAOs who are trying to control the news by masking all spokespeople is something else. Until the media figure out how to distinguish between the two, things will remain a mess.

  12. MadDog says:

    Totally OT, but of high interest here: Conyers Releases Letters Initiating Investigation into Alleged Iraq Intelligence Forgeries

    House Judiciary Committee Chairman John Conyers, Jr. (D-MI) today released a series of letters initiating the Judiciary Committee’s review into allegations that senior administration officials approved the creation of fabricated documents to deceive the American public about the nuclear threat posed by Iraq in 2003. Committee contacted a number of administration and intelligence officials seeking their cooperation with its review. The correspondence is linked below.

    Richer letter
    Tenet letter
    Maguire letter
    Krongard letter
    Hanna letter – Link at Conyer’s site to this is currently broken there.
    Libby letter

  13. earlofhuntingdon says:

    WO, you’ve plopped BushCheney’s watermelon inside a peanut shell and made it fit. Well done. The apparent randomness of their acts, the extemporaneous response to “new” events “no one could have anticipated” are part of a consistent attempt to hide Cheney’s obsession with power.

    Your citation of Cheney and Addington’s Iran-Contra Minority Report — a pun after the Tom Cruise film about a brutally flawed attempt to stop crime before it happens — was exactly on point. As a forgotten book on Chicago mobs informed an entire planet’s culture in the original Star Trek episode, A Piece of the Action, the Iran-Contra Minority Report is the Bible for the mature Cheney’s grasp for executive power — an obsession inflamed by his having to reach for it from the back seat, from behind a nobody who came in ahead of him because of sops to the people like elections.

    It is the vulnerabilities, the flaws, in others, the too-easy assumption that government is unbreakable that allowed Cheney to succeed. He has institutionalized his success; undoing it will require more than firing him. “If it ain’t broke, don’t fix it,” doesn’t apply. Government is broken, from the DOJ to the FEC, from the Army to the Park Service, from energy policy to international treaties. Cheney wielded the hammer. Gluing it back together won’t work: the parts are scattered and misshapen. It needs to be recast, preserving the best of the old, but with refinements that give it added suppleness and strength to resist the hammering of future Cheney’s.

    If Obama isn’t sure he wants to pick up the pieces, much less have the will to recast them, if he’d rather put them on the mantel and pretend they’re whole, well, we can remind him that that’s a fantasy and that Cheney’s clones are in the hardware store, stocking up on more hammers.

    • Rayne says:

      He has institutionalized his success; undoing it will require more than firing him.

      Unfortunately, Cheney hasn’t done this as much as the failings of the entire government has done so.

      I had a lengthy conversation in Austin with someone that EW knows well, as to why Conyers had not pursued impeachment. This person was in a position to know how Conyers and others in Congress thought, so I trust their opinion.

      I was told that polling told Conyers et al that impeachment didn’t do well with the public.

      And that’s it. That’s why no frogmarching. Polling said no go.

      The institution of Congress is run based on polling; they are surveying us as if we, the American public, were watching some rather weedy reality show, asking us what they should do next on their island. And they didn’t hear us say, Throw the criminals off the island.

      Cheney, as evil and maniacal as he is, didn’t do this; we did. We are part and parcel of this problem.

      What really pisses me off is that Congress as well as the White House paid more attention to polling than they did the November 2006 elections. Apparently they didn’t get the message that elections matter.

      • earlofhuntingdon says:

        I disagree. Mr. Cheney led the fight, he gave it legitimacy and authority, he gave informal and formal backing to the Cheney-inspired network that made these changes, that cut out, derailed or fired opponents. He’s the force the catalyst that made this happen.

        • earlofhuntingdon says:

          I would add that Conyers, Pelosi, et al., chose to take impeachment off the table because of concerns about their own re-elections, not concerns about the wrongs done. Self-interest trumped duty, ironically twisting the conflicts between the self-interests of Congress and the executive branch that were built into the Constitution. They were reacting to Cheney’s moves, his power and his ability to mete out personal, career, and electoral retribution. In the race to the lifeboats, they made sure they were first.

          True, progressive Dems probably did not have the votes to pass articles of impeachment and send them to the Senate, or the votes in the Senate to convict. Damningly, they used that to avoid investigating, to avoid documenting criminal wrongdoing, which they could easily have done without the votes to impeach or convict, making sure the public wasn’t in the lifeboat with them.

          • Leen says:

            Seems to be so and these reasons for choosing not to put impeachment on the table where it belongs are pathetic and damaging

          • bobschacht says:

            “True, progressive Dems probably did not have the votes to pass articles of impeachment and send them to the Senate, or the votes in the Senate to convict.”

            This is putting the cart before the horse. If this had been the calculus, there would have been no Watergate hearings. Sam Ervin would have been just another Southern Senator, and John Dean would have been just another disgruntled White House employee. Its just pure crap. IMHO. The purpose of the hearings is not only to find the evidence, but also to bring public opinion along. The founding fathers were geniuses of process. Most of the present crop of Democrats are myopic hacks.

            Bob in HI

        • phred says:

          I agree that Cheney is the instigator, but he could not have succeeded without the acquiescence of Congress.

          [email protected] — thanks for the clarification, now I see what you meant, and I certainly agree with you.

          [email protected] of course impeachment is a large enough force, but last I checked there hasn’t been any. I have maintained for a very long time now that Congress has all the power it needs to rectify things, they simply choose not to use it. As you note, they could start removing smaller fish, they don’t need to take on Bush and Cheney, but heck we can’t even get subpoenas and contempt meaningfully enforced. So, we get the unequalled pleasure of watching BushCo continue to dismantle our democracy until January, while Congress turns a blind eye, except to their own various re-elections. It was almost pitiful reading Grassley’s plea over at Glenn’s that he hasn’t been part of the problem of inadequate Congressional oversight. Pathetic.

      • plunger says:

        And that’s it. That’s why no frogmarching. Polling said no go.

        The institution of Congress is run based on polling; they are surveying us as if we, the American public, were watching some rather weedy reality show, asking us what they should do next on their island. And they didn’t hear us say, Throw the criminals off the island.

        Cheney, as evil and maniacal as he is, didn’t do this; we did. We are part and parcel of this problem.

        I respectfully, but completely disagree.


        Reality has been stood completely ion its head, and we have virtually no way to verify ANY stated poll results.

        WHO CONTROLS THE POLLING? The media companies control the polling.

        WHO CONTROLS THE MESSAGE? The media companies control the message.


        Media ownership study ordered destroyed
        Sept 14, 2006

        ‘Every last piece’ destroyed

        Adam Candeub, now a law professor at Michigan State University, said senior managers at the agency ordered that “every last piece” of the report be destroyed. “The whole project was just stopped – end of discussion,” he said. Candeub was a lawyer in the FCC’s Media Bureau at the time the report was written and communicated frequently with its authors, he said.

        “You can’t tell any more the difference between what’s propaganda and what’s news.”

        FCC Commissioner Jonathan Adelstein
        15 August, 2006

        As for polling and McCain’s sudden and inexplicable leap in the polls:

        Former Pollster Pleads Guilty to Fabricating Results

        Tracy Costin, the former owner of polling company DataUSA Inc., entered a guilty plea to conspiracy to commit mail fraud for fabricating the results of polls the company conduct on behalf of, among others, President Bush in 2004.


        Watch next for the SWIFTBOATING OF EXIT POLLING:

        Speaking on a pre-election NPR interview in 2004, Rove stated that he actually sees upward of 36 different polls – many of which predict a GOP victory in the coming elections.

        He’s simply lied.

        He lies to create a mindset of doubt – in order to better enable the theft of the election through means other than the ballot box. The GOP has effectively hijacked America. Bush did not win the election in 2004. Exit polls don’t lie…but Rove does.

        Revisit the exit polling data from 2004 and share it with others:…..exit_polls

        November 2, 2004: Overcoming a six point exit-poll advantage by Senator John Kerry, George Bush is re-elected President. Several statisticians have calculated the probability of this anomaly as one in a million — in effect, impossible.


      • bobschacht says:

        I was told that polling told Conyers et al that impeachment didn’t do well with the public.

        And that’s it. That’s why no frogmarching. Polling said no go.

        I have heard this, too. But this is the worst kind of Clintonian triangulation, and reflects no faith in the Constitution. It comes from the DLC wing of the party. And furthermore, there are other polls that contradict those polls, well documented by David Swanson and others over at

        Remember that public knowledge of the word “impeachment” was excessively colored by the illegitimate and highly partisan impeachment of President Clinton. If the Democrats had any spine, they would know that the issue was not whether or not to impeach, but HOW to impeach, and they would have set up the inquiry in a way to avoid the circus sideshow atmosphere of the Republican proceedings.

        Gr-r-r-r. This crap really makes me mad. At stupid Democrats.

        Bob in HI

        • Leen says:

          who did they poll the evangelicals and the rest of the Christians who were glued to their t.v’s during the Clinton blow job investigations? Those so called “christians” who wear crosses around their necks screaming “go kill all of the Iraqi’s and sons of bitches in the middle east”. Those folks who could give a damn about the millions killed during our sanctions in the 90’s and in the two attacks on Iraqs. Anyone witnessing anything being shown on our MSM channels about those 5 million Iraqi refugees that we are all responsible for?

          Yes I have heard too many of these folks scream hogwash like this with little crosses hanging around their necks. And as you can tell I am damn tired of these brutal contradictions and not having the light of day shine on these hypocrites.

          • bobschacht says:

            Who is the “they” that you are referring to? Your rant doesn’t really apply to either the pollsters on whom Pelosi, Conyers and others were thinking of, and it doesn’t really apply to the polls cited over at either. Or did you just want to bash Christians and were looking for an excuse?

            Please don’t confuse my two threads today: the reply to phred about evil lying close at hand had nothing to do with my comments about the polls.

            Bob in HI

            • Leen says:

              oh yeah and so called “christians” never deserve a bashing. I am referring to those conducting those polls that determined that Impeachment proceedings were not advisable. There was no reference to anything about after downing street anywhere.

              • readerOfTeaLeaves says:

                FWIW, Yes I do happen to think that there is something ‘wrong’ with a number of the key Deciders in the Bush Administration. But I’m not qualified to determine whether anyone is — or is not — a ’sociopath’. Abu Gharib is ‘off the charts’. What on earth would prompt such an incredibly stupid, inept response…? And given the fact that they DID set up a system designed to implement Abu Gharib AND ALSO not let any of us know about it… then I circle back to WO’s statement:

                These guys are our criminals and our responsibility.

                I happen to agree.
                I believe WO makes a very, very good point.
                People assume that the election will somehow solve our problems. But if these people are not brought to account, then the message is really: “Crime pays. By all means, be a criminal because you’ll have vast wealth and no investigators, nor criminal prosecution, can ever touch you.”
                That means criminals run the show, and all the rest of us are at their mercy.
                What kind of heritage is that for our kids…?

                So how to address the point WO makes: How do we deal with these people, given a Congress that has utterly failed in its moral, Constitutional, and legal responsibility?

                How do ‘normal, ordinary people’ ensure that these people are brought before the law, and that justice is rendered (in the form of prison sentences)? Because if we don’t then what claims does America have to greatness? If we don’t, then we show that we’d rather shop than act like adults who realize some problems are complex and intractable.

                WO has called the question.
                Here’s proof of war crimes.
                In our name.

                So now, what?

                (And as for bashing Christians, please don’t. I am the first to admit that I’ve been completely fed up with the authoritarianism and hypocrisy of the Falwells and the Robertsons. But it’s not fair to smear everyone with the same brush. Lots of good things happen in churches, and at its best, the word ‘minister’ connotes alleviating suffering, offering hope, offering guidance — compassion is in short supply and just because I’m fed up with the Falwell types doesn’t mean I can’t respect the efforts of more humble, skillful ministers. JMHO.)

  14. ondelette says:

    Interesting thesis William Ockham. I was basing my belief that the OLC was lead to believe they were writing about contemplated policy on the behavior of John Yoo in writing the so-called Bybee memo (August 1, 2002 “golden shield” for the CIA). He had stated that he was rushing around to provide a legal context that would enable the administration to go forward with interrogations in the wake of the capture of Abu Zubaydah on March 29th, because they were totally paranoid about an imminent second attack [Turns out, this was all about an anniversary attack on September 11, 2002, a belief in these stems from the erroneous belief that Timothy McVeigh set off his bomb on April 19th due to the anniversary of the attack on David Koresh, when reality is that April 19th, as every citizen of Massachusetts knows, is Patriot’s Day, the day of the start of the American Revolution].

    I look over your scenario, and it fits more memos than mine. I had assumed that Yoo was telling the truth. In deference to your namesake, I usually look for the theory that produces the least number of liars. But he could have been rushing to standardize procedure so it could be disseminated, and to remove direct contact with implementation.

    Okay, if I buy yours, which instead creates the least number of exceptional memos, then I have to raise you one: Delete The policy is challenged. The move to underwrite these practices seems to come more from a desire to convert the exceptional behavior to standard operating procedure than a defense against any challenge. All are initially offered as emergency powers needed due to exceptional circumstances — torture is needed because of the extreme threat which causes the unconscionable to become the necessary — and then there is an immediate move to bureaucratize the new authority and make it normal, which is the formal acquisition phase of new executive power.

    Of course, once that step is deleted, the arguments of Gerald Gray that mass torture was policy, implemented by creating the Lord of the Flies context, fall directly into place. As they should, in any theory that eventually has to account for 30,000+ prisoners being held in abusive and cruel conditions under U.S. control outside of the law.

    Um, on the international tribunal idea, we must disagree. I have received word back from the ICC Prosecutor’s office, that the letter we wrote and collected 129 electronic signatures for, is being considered, and they will write again once they have looked at it with respect to the Rome Statute and any investigations. They may be our own criminals, but failure to prosecute is also an international crime — the equivalent of obstruction of justice. Congress has already taken concrete steps to eliminate such prosecution, and no one has stopped the administration from ignoring Supreme Court decisions. The government of Pakistan is now formally challenging us, and they are contemplating forcing the trial of Aafia Siddiqui to the International Court of Justice in the Hague. The governments of France and Germany are filing against the members of the Bush administration. Most likely, either our Central Asian policy becomes a huge war and the rest of NATO demands a review of our detentions, or the torturers will be forced to international justice before that. Prosecute them in the U.S. if you will, but the time for doing so is quickly running out.

    • WilliamOckham says:


      Here’s why I have ‘The policy is challenged’ step. In every case, there were career civilian or military lawyers (cf Alberto Mora) who objected to the travesty. Secrecy and OLC opinions were used to stifle dissent and debate.

      I may have left the wrong impression with my comments about international tribunals. If we don’t prosecute, they will be a distasteful, but necessary avenue. What I don’t want to see are these malefactors hiding behind a facade of patriotism.

    • Nell says:

      @ Ondelette: Will the ICC give at least six months into the Obama administration for the repeal of the Military Commissions Act?

      The fundamental issue is whether we want to see the accountability happen, and I am convinced that ICC actions that don’t give a new administration and a Congress that need not fear a veto or mass pardons a chance to clear the way for justice will create a political climate that hurts rather than helps the chance to achieve it.

  15. bmaz says:

    WilliamOckham makes an excellent, and absolutely critical point in the update paragraph immediately above about the overarching plan of Cheney to retake, and expand further, Executive Branch power that was spelled out in the Iran-Contra Congressional Minority Report. And that is exactly what we have been witnessing in the announcement by the Administration of last minute wild expansion of domestic spying and datamining capabilities, and as discussed in the two ”FISA Redux” posts here and here.

    • phred says:

      bmaz — just in case you missed it, BushCo finally found a way to keep von Spakovsky toiling away on voter disenfranchisement (via TPM).

      As Addington famously said, they will push and push until some larger force makes them stop.

      Unfortunately, Addington’s irresistible force has yet to meet an immovable object.

      • Leen says:

        Is Impeachment a large enough “force”?

        Addington first on John Deans Impeachment wish list

        Refocusing the Impeachment Movement on Administration Officials Below the President and Vice-President:
        Why Not Have A Realistic Debate, with Charges that Could Actually Result in Convictions?
        By JOHN W. DEAN
        Friday, Dec. 15, 2006

  16. danps says:

    Great post William. You wrote about “the latent authoritarian impulses of a sizeable minority of the country” – I’m going to post later today at my site and make that same point. Want an email when it’s up?

  17. R.H. Green says:

    Nice pair of postings Mr Ockham. With regard to step 5 of your seven step program, that of getting a legal bailout from the OLC, it occurred that this is a dance that could be called retroactive immunity. A variant of this dance is to get the bailout from congress, rather than the in-house legal authority. We need only to consider the FISAAA to see the picture. When we factor in the Patriot Act, the Military Commissions Act, the DTA,and possibly others that don’t come to mind, the picture becomes a stable pattern.

  18. ondelette says:

    William Ockham: When Mora objected, at least according to Mayer, the OLC (or more directly in his case, the DOD GC) “opinions” had already been written. The behavior does get condemned, but not from the inside, and not before the opinions, with the exception, possibly, of Goldsmith objecting before writing.

    I guess it’s possible that we try our own criminals, but I think we, as a nation, seriously need to go through the condemnation process to the end — to the punishments and reparations. People in this country are too sure they can always say, “Let’s learn from our mistakes and move on.” The rest of the world needs their justice too, and moving on before they feel justice has been done is another version of pleading that the fall from grace is punishment enough. This time it most assuredly is not.

    The massiveness of the U.S. detention abuses is now part of the problem. Pakistan alone is seeking answers, punishment, and reparations for 580 citizens that they know of (by HRCP count). Some people believe their real total is more like 5000. The charge that pushed the impeachment of Musharraf over the top was Siddiqui — the allegation that he sold his own countrymen into U.S. torture for money. She is now the poster child for countless detentions, mixed with the elemental cry of rape by foreign soldiers. Her bail hearing is September 3rd in NYC.

    There are 10,071 prisoners in Afghanistan by ICRC count (a couple of months ago), but 13,000+ by the counts of others. The military admits to 21,000 prisoners in Iraq. The network of prisons controlled by the U.S. for detention without charge numbers over 100 prisons. These numbers don’t point to anything short of an international tribunal, but if the U.S. can really pull off self-examination of that much culpability without failing to have the political nerve, so be it. So far, we can’t even get a government official to testify in front of Congress, nor can we subpoena a White House email. Our wheels of justice are grinding so slowly others find them motionless.

    Add to your Minority Report the actions of Doug Feith in starting our recent history of non-ratification of international human rights agreements and international humanitarian law protocols. It was roughly contemporaneous with the Minority Report, and led to the formation of a class people with no rights whatsoever.

    I’m glad you put all this together, when I look at it, I too frequently feel overwhelmed.

    • Nell says:

      the actions of Doug Feith in starting our recent history of non-ratification of international human rights agreements and international humanitarian law protocols.

      Could you provide some cites for further reading on this? I’ve been aware of the pattern but hadn’t associated Feith in particular with it.

      • ondelette says:

        With reference also to 123. The ICC operates on its own schedule, but it would undoubtedly be slow enough for Obama to declare right now that he intends to proceed with prosecutions. I don’t personally think he does.

        With reference to the other: Douglas Feith was in the early Reagan administration, and then left the government, but lobbied the administration very hard not to request ratification of the 1977 Additional Protocols to the Geneva Conventions (the ones which define other kinds of conflicts and treatment of people like insurgents and terrorists as prisoners). At the time, the Israelis were very much against the protocols because the Palestinian Liberation Organization had declared it supported them, and that it intended to be a signatory to the Geneva Conventions (it actually did sign, but wasn’t regarded as a legitimate High Party). Feith’s business partner L. Mark Zell, who is a settler in the West Bank, has been on record as saying that Palestinians deserved no rights to anything at all, because they settled on land that God gave to the Jews.

        Feith was very proud of having convinced the Reagan administration to ask Congress to reject ratification, which it did in 1987. If you look at charts of human rights declaration ratifications subsequent to that (on the U.N. site), you see that subsequently, the U.S. established a pattern of signing but not ratifying them. This became much less effective after the Vienna Convention, because that convention is regarded as settled law in the U.S. (the courts have cited it), and it says that an international law treaty that is signed and not ratified still compels the signatory to comply with the treaty in all aspects except apprehending and prosecuting violators. This last is why the Bush people withdrew the signature from the Rome Statute.

        For sources, start probably with the Wikipedia entry on Feith or google his name and the 1977 protocols, although the sources at the end of the entry on the additional protocols are useful in determining the Senate ratification history for the 1977 protocols. There isn’t much dispute that he was instrumental in getting the Reagan administration to recommend rejecting ratification.

        My point was that the forces which converged in the Bush administration included this man who made a life long enterprise out of trying to put “terrorists” beyond the reach of Geneva. He did so because he doesn’t like Palestinians, but the consequences are that many holes and gaps that were supposed to be closed thirty years ago on the status of non-state actors can be argued to be ambiguous by current neocons and sovereigntists in and out of the Bush administration. So this thread, which was running parallel to the Cheney/Addington one in the Reagan years, is another causal factor to the current mess.

  19. Mary says:

    4 – Here’s where I lose the faith. I don’t think Dems have been outmaneuvered, I really think that there are Dems who have been actively working with the Executive branch torture agendists to make sure the stories stay garbled, disjointed and to little effect.

    While I absolutely agree with you that individual narratives are one of the best ways to get into these kinds of stories, I think the best narratives to pick might well be those involving people who have pretty much been proven to have no terrorist ties, not because rules don’t exist for the guilty as well as the innocent, but bc people understand the need for the rules better in the context of a storyline involving innocence.

    But think about the things Congress has, supposedly, “looked at” and done nothing about. Arar was involved in a satellite link, in a hearing that everyone made sure got zilcho press, and one where even Rohrabacher offered up an apology to Arar (but still said we had to be able to torture all youse muslimy sounding guyz to save the world – can’t stop a torture program just bc its mostly torturing innocent people – or something bizarre like that). But they made nothing of the story, nothing of the narrative and they even completely ignored the narrative while Harry Reid set up the MCA for passage.

    They haven’t had any interest in the story of Kurnaz,…..02307.html
    or el-Masri, or even what happened to KSM’s 6 and 8 yo children. I have a hard time seeing that as being outmaneuvered, as opposed to cyncially and malignantly covering.

    IMO, all the existing plaintiffs on the torture front should go through the briefings timelines and start adding the members of Congress who were illegally or illicitly briefed, in violation of the National Security Act requirements (which generally required at LEAST the Gang of 8 instead of Gang of 4 briefings and which requied full committee breifings for domestic and systemic operations and determinations like establishing blacksites and Executive branch programs to disappear, torture and ghost detainees vs covert activities) That means to start adding DEMOCRATIC complicits. It’s only going to be by court orders and rulings that anything will happen, and while not much may happen then, I think if those rulings affect Democrats as well are Republicans, the Democrats will suddenly scramble a bit to paint the “they were worse than us” picture, whereas now they just get Chuckles Schumer enlisted to praise torture while claiming not to know anything about it actually taking place.

    Despite all that pessimism and bitterness, I love that you are telling a very compelling and easily followed narrative and I’m happy to bet against myself for awhile still. Hoping.

    • earlofhuntingdon says:

      Sad to say, I agree with you that too many Dems, some highly-placed, agree that the president should have the powers sought and used by Cheney. They believe the monsters under the bed are so scary that torture and warrantless domestic spying are OK, or at least that their constituents and corporate contributors think so. I also have to follow Deep Throat and follow the money. The hundreds of billions of taxpayer dollars spent on weapons systems, war “reconstruction” (aka oil field dominance), and intelligence services [sic] dominate the decision-making playing field, making it too easy to rationalize that all this must be good for Amerika.

    • WilliamOckham says:

      I can’t argue with anything you said. In part, I’m pushing the Rashul narrative to trick the Dems into investigating. I want to get them started down what looks like a safe path from a partisan POV, but builds its own momentum. As you’ve pointed out before, the real test comes when we all start to realize that no matter what Addington, Feith, et. al. said, all the Geneva Conventions applied in Afghanistan and the war crimes number in the thousands. I’m afraid everybody will want to turn their heads and look away, but we just can’t let that happen.

      • readerOfTeaLeaves says:

        FWIW, I was talking to a friend who’s a psychologist — which doesn’t mean that this individual has life scoped out or can solve these problems, but it was nice to talk about the psychology of this BushCheneyAddington crowd and think about some of their defining characteristics and behaviors (such as we can suss them out from the hinterlands…).

        I asked why grown adults don’t seem to be able to SEE this evil — it’s so rampant, so evident to anyone who pays even a small amount of attention. And the thoughtful response went along these lines: “Evil is scary. Once you see it, you have two choices: do something, or turn away. And if you turn away, then you feel guilty, smaller, ashamed, complicit. Evil is scary, because a moral person is **compelled** to respond to evil by doing something to try and stop it.”

        I think that what we have in the US are a lot of people who actually feel afraid for their economic security, their personal relationships, their children’s educations… I could go on, but hope that I’ve made my point.

        In talking about evil, and it’s effects on neurology (which can now be shown on brain scans; the brain structures do not develop properly when children or adults have been abused or harmed), we need to help people realize that their SAFETY, and the safety of their children, LIES IN FINDING WAYS TO USE THE LAW for justice.

        Because these people (Bush, Cheney, Feith, Addington, et al) are badly damaged, and they appear to be lethal. They’re ’successful’ in conventional terms: jobs, yadda, yadda… but they’re not capable of building long term social structures that move humankind forward. Their institutions are perverse.

        When Hitler rose to power in Germany, it occurred in part because people could not bring themselves to believe that such evil could exist among them. In that sense, the evil was almost certainly: (1) too novel, (2) too disguised for them to see. And if they’d seen it…? Well then, to succumb to it is to be party to perpetrating evil.

        But as my psych friend pointed out: evil is scary.
        It’s s-c-a-r-y.
        It’s unpredictable, and in that sense it’s kind of off-the-charts.

        Who among us in 2000 foresaw that Rove was using RNC servers to count ballots and create an external communications system? People didn’t see it coming. Some still deny it occurred. People don’t like to feel like they were stupid; they don’t like to admit that they failed to recognize BushCheney as evil.

        So a couple things that I take from your brilliant synopsis:
        1. People need to understand that their safety, and the safety of their children, lies in STRONG LAWS that are enforced by a socially sanctioned system of cops, prosecutors, etc. Currently, many people don’t believe that — which means they’re not all that invested in working for a system that they don’t believe will actually keep them safe or put Scooter Libby in jail.

        2. People have to be ‘not so scared’. They have to believe that it is possible to phone a Congressperson’s office. They have to believe that it is okay to call and say, “What do I tell my kids if you people don’t clean up the mess in D.C? What do I tell my kids I pay taxes for if you people can’t jail the people who implemented Gitmo?”

        3. People have to understand that military solutions are very, very short term strategies. War is sub-optimal; you may win over weeks or months, but over years… the destruction is not repairable. (If we were elk or gorillas, aggression would put us at the top of the dominance hierarchy, but for humans… what puts us — over a lifetime — in a safe situation is to have social skills that build networks of exchange.) Currently, people still believe that war is acceptable and millions of jobs (worldwide) are based on munitions production.

        4. The economic linkages between Cheney, Perle, etc, etc, need to be more clearly exposed to the US public. Once they see that there are motives other than ‘patriotism’ driving these people, PLUS their modes of secrecy, then they’ll be quite pleased to prosecute these war criminals.

        5. Bottom line; this is brilliant. I’m touched with wonder. Now, how to help people understand that their own lives, and the lives of those they love, would be SAFER if Bush, Cheney, Addington, et al were prosecuted in the US — because it would make us stronger, tougher, and more clear about who we are and what we value. And it would show our kids that you don’t let bullies run the show — ever.

        • readerOfTeaLeaves says:

          Two other points:

          1. I don’t mean that war should ‘never’ happen and I’m not anti-military. It’s my strong sense that professional military commanders (and I’m thinking Clark, Odoms, Fallon) understand that war is sub-optimal, and for that reason it is **defensive** and a last resort. One clue that Bu$hCheney are depraved is that they seemed to use war as a PR strategy, and for strictly **political** purposes. (And if Cheney is really all that smart, how he let GWBush prance around on that aircraft carrier under a “Mission Accomplished” banner escapes me entirely.)

          There are reasons for war, and reasons for preparedness. But war is sub-optimal, and the people who seem to best understand that are veterans and military strategists who’ve been in war.

          2. There are very serious reasons — strictly involving economic competitiveness and also involving currencies — for the US to clean up this disaster. People don’t like to do business with assholes. And because so much business today is global, it’s simply smarter from a business perspective to clean out your own house, rather than have the neighbors rooting through the cupboards to clean it up for you.

        • plunger says:

          “Most people prefer to believe that their leaders are just and fair, even in the face of evidence to the contrary, because once a citizen acknowledges that the government under which he lives is lying and corrupt, the citizen has to choose what he or she will do about it. To take action in the face of corrupt government entails risks of harm to life and loved ones. To choose to do nothing is to surrender one’s self-image of standing for principles. Most people do not have the courage to face that choice. Hence, most propaganda is not designed to fool the critical thinker but only to give moral cowards an excuse not to think at all.”

          Michael Rivera

          As for what it will take for Americans to admit that they have been no less a duped than the good people of Germany, only by exposing the entire truth of the Administration’s direct role in planning and implementing 9/11 can the public be so moved as to act.

          Nothing is more important to the future of our country than revealing the truth of 9/11, and admitting it, one and all, no matter how difficult it is. The truth will prevail.

        • Leen says:

          from a peasants point of view they sure appear to be a group of psychopaths to me. How often in history do you find group psychopathic behaviour? WWII…other genocides.

      • Peterr says:

        (And picking up on what earlofhuntingdon said @ 39)

        Too many DC dems misconstrue “impeachment investigation” with “partisan witch-hunt.” OK, they’ve got good reason for that, given the GOP example in the 90s, but that’s the GOPs problem.

        Here the situation is much different. There appears to be strong reason to believe that (as you say in your bottom line) “there’s plenty of evidence of war crimes . . .” The key, though, is determining the exact crimes and the specific culprits. *That* is why an impeachment investigation is necessary.

        But if the HJC is reluctant to begin an investigation that will put these pieces together, I guess the crew here at EWs place will have to continue to toil along until we can embarrass them into doing their jobs.

        • bobschacht says:

          “Too many DC dems misconstrue “impeachment investigation” with “partisan witch-hunt.” OK, they’ve got good reason for that, given the GOP example in the 90s, but that’s the GOPs problem.”

          Unfortunately, I beg to disagree. It is OUR problem, because the GOP has succeeded in getting the “partisan witch hunt” glued onto the word “impeachment”, and the Democrats, apart from a few such as Kucinich, Dodd, Feingold, and Wexler, are too timid to pry it off.

          WE have to get busy resurrecting the proper spirit of impeachment, so that it becomes once again a viable tool of Democracy.

          Bob in HI

          • Leen says:

            If congress is unable to discern a “witch hunt” from holding people in the Bush administration accountable for war crimes and an intelligence snowjob then they will have to continue to live with 9% of the American public having any faith in them.

            throw the bums out

  20. chetnolian says:

    Two points, one a little OT.

    If we agree some of the things Cheney set out to do have been achieved and that Congress will struggle to change them, then who is VP matters IMMENSELY. How happy do you feel about Joe Lieberman as Chief Barnacle? That’s really scary.But it also means it matters who Obama picks. I know here in the UK we have no written constitution, but the lesson you can learn from us is that changes made by one political regime are used by the next. Mrs Thatcher’s presidentialism led directly to Tony Blair.

    The OT part; The High Court in London ordered yesaterday that the Foriegn Office (which means MI5) must release to his defending lawyers evidence which it is believed will show Binyam Mohamed, whose name and circumstances will be familiar to anyone who read Clive Staffor Smith’s book, was subject to extraodinary rendition to Morocco and tortured there.Mohamed, of Ethiopian birth, was a British resident from his teens.

    The commentariat here suggest MI5 people were involved directly in some way, so this is not going to go away.

    The cracks continue to open.

  21. Skilly says:

    Thanks WO for two well written posts. I will read the Minority report tonight.

    The piece does preach to the choir a bit. I’m wondering how to take the message to the masses? What will it take to wake people up?

    I do not see a change in administration changing the policies that are currently being implemented either.

    It seems like with the passing of every day, our lives become more and more like classic science fiction.

  22. alabama says:

    I’m sure that Bush and Cheney get off on the torture, but for Cheney at least, that’s secondary to the effort to establish what is effectively an elected constitutional dictator.

    To this I would ony add the obvious point that Cheney is not a political philosopher. For him, “an elected constitutional dictator” as such is at best an abstraction–a complicated concept of the sort being purveyed in all those courses he failed at Yale, or failed to finish during his years as a post-graduate draft-dodger.

    And if such a dictator were to arise, opposing all that Cheney values most in matters of money and power–in effect, his own personal network, his support-system–he would fight against that dictator in every possible way. Not necessarily through legal means alone, as sanctioned by the Constitution, though none of these would be excluded (far from it), but through the various illegalities as well that he seems to prefer–an assassination now and then, or perhaps a coup d’état (not, in and of themselves, the acts of “”elected constitutional dictators” only–far from it!).

    Cheney’s a control freak, and Bush is a pathological sadist. They make for a an ugly pair.

    Of “ideas” that are worthy of the name, Bush and Cheney have none, and “elected constitutional dictator” is certainly one of these. They have compulsions to wreck things and people, and to build up a network of the like-minded. They are rogue who can game the system to their own partisan advantage. And if, in years to come, their network is torn apart, this too will perhaps have to occur through violent, extra-legal means.

  23. Mary says:

    34 – As early as Jan 2002, the Criminal Investigation Task Force was raising issues on treatment at GITMO.

    The investigators say their warnings began almost from the moment their agents got involved at the Guantanamo prison camp, in January 2002.

    Some of the challenges seem to have not necessarily come from lawyers but they were made nonetheless. IOW, while Mora’s stance may not have been voiced as early, the reasone he did voice an objection is that OTHER objections that had been voiced were making their way through to him.

    While Capn Jack was comliantly participating in the torture field trips, there were others who were drawing lines and taking a stand:

    “What makes me intensely proud of all these individuals was they said, ‘We will not be party to this, even if we’re ordered to do so,’” said Alberto J. Mora, the former general counsel of the Navy, who ultimately got Secretary Rumsfeld to roll back permission for some of the harshest interrogation techniques. “They are heroes, and there’s no other way to describe them. They demonstrated enormous personal courage and personal integrity in standing up for American values and the system we all live for.”

    So by January, 2002 you had concerns being voiced.

    Some of the rest of this may be a bit non sequitor to the point, but I think it all ties.

    Yoo’s Jan 9, 2002 opinion is already raising the War Crimes Act,……01.09.pdf
    even as he was finding that “members of the al Qaeda organization” and of the “Taliban militia” are not covered by the Conventions. Even more interestingly, Yoo’s memo only examines what kinds of treatments of prisoners of war would constitute war crimes (what violations of the GPWs are grave breaches, but it is the GPWs and ONLY the prisoner of war designation that allows for shipment outside of country – if someone is not a POW, so already by saying that no one would be treated as a POW, consistent with the GPWs, Yoo was cutting off the ability to use the authorization in the GPWs for shipment out of country of POWs. When he gets to analyzing common article 3 and related breaches, including the issues relating to protected persons and Article 49 – there’s nothing. Not one reference to or listing of other “grave breaches” of the Conventions except those which are grave breaches when committed against POWs. SO despite everyone’s huge concern over the War Crimes Act, no one bothers to come up with a listing of grave breaches in and under any of hte articles except the GPWs.

    In a Jan 2002 memo to Gonzales, Powell makes a case, but neither Yoo nor Powell’s memos seem to even obliquely contemplate things like buying hostages and human trafficking victims off of criminals and warlords or disappearing students and travelers from around the world to GITMO. (BTW, this is why most legal memoranda require a FACTS section which appears missing in most of what OLC generated) Part of Powell’s argument is that following his approach makes it less likely that US officials will face the risk of domestic prosecution. EVERYONE was talking about war crimes future prosecutions – – not one admin lawyer was putting a hold on destruction of documents or evidence.

    Gonzales’ Jan opinion to Bush makes the point that inventing a good label will make war crimes prosecutions by later administrations less likely. But what Gonzales and Powell both left out and what Yoo ignored is that all they really needed to escape worry over prosecution for war crimes was something called “Democrats.”

    Anyway, Taft at State on behalf of Powell sends a Feb 2002 follow up, going toe to toe with Gonzales. He takes that muttering about how detainees will be treated humanely and says, ok – well, if we are going to treat them that way ANYWAY, then we ought to just ante up that the Conventions apply:

    From a policy standpoint, a decision that the Conventions apply provides the best legal basis for treating the al Qaeda and Taliban detainees in the way we intend to treat them.

    But of more significance to me is that the Taft memo attachment over and over reflects that DOJ lawyers were wanting to have the Conventions suspended and/or the President renouncing the application in Afghanistan soley because they were looking for more cover on possible War Crimes Act charges in future administrations.

    From one bullet point:

    DOJ lawyers believe that it is desirable to adhere to the President’s determination of January 18 that GPW does not apply to our conflict with the Taliban in order to provide the best possible level of protection against misapplication of the War Crimes Act.

    Also with Taft’s memo there is a section on “further screening” which is really interesting with resepct to both the Mayer revelations (that Addington was told of numerous detentions of civilian non-combatants and could have cared less) and also with respec to the handwritten notation as to what the Canadians were being told. The memo points out that DOJ, WHC and OVP lawyers (isn’t that a nice little cabal — no specificiation of why OVP lawyers were even involved, much less WHICH DOJ lawyers were involved in these policy discussions) felt that there would never need to be any “further screening” of anyone they were detaining in the Afghanistan conflict, bc the President’s determinations were “conclusive” while “DOD, JCS, and DOS” felt that if doubt should arise, there should be further screening and a handwritten note indicates that the National Security Advisor has told the Canadian govt that this further screening option is, indeed, our policy.

    Not that anyone seemed overly concerned about Condi lying to the Canadian gov.

  24. bobschacht says:

    Thank you, WO, for illuminating so clearly why John McCain must not be elected president. We don’t know how much better Obama will be, but surely he won’t follow the fascist road as eagerly as McCain does.

    Now to finish reading!

    Bob in HI

  25. Valtin says:

    WO, you have done a superlative job in catching this administration in another “error”, wherein their attempt to cover their crimes gets tangled up in timelines, leaving them vulnerable to prosecution under U.S. law. They don’t care about international tribunals, which they find (as do I) unlikely, at least in any large scale fashion. Nor will they be publicized much in this country anyway (consider the Italian prosecutions of CIA officers, a non-story in the U.S.).

    I believe the solicitation of SERE for torture in December 2001 — probably associated I’ve come to believe with the John Walker Lindh case — is another example of where the policy was implemented to cover the crime. This should be another instance where they are vulnerable to prosecution, and in this case, it is a Democrat — Carl Levin at the Senate Armed Services Committee — who is sitting on the suppressed documents. (If only some staffer there would leak the evidence…) I thank you for the notice of my work on this story, and readers are directed to my last story on this, Why the Silence on Real Torture Timeline?

    The other issue in your article, over which many commenters have agonized, is the apparent complicity of the Democrats in all this, or at least certainly their non-action. I think the evidence is in, and we are loathe to accept it: if you cannot stop nor censure a criminal war that kills 100,000s of people, if you cannot stop nor censure the operation of a torture chamber within U.S. jurisdictional boundaries (Guantanamo), nor the torture and illegal incarceration of many tens of thousands, then you have forfeited your right to represent the people, or anything representing a progressive cause.

    This does not mean that there aren’t sincere and trustworthy politicians still left in the Democratic Party, but they have no power and little say in what occurs.

    All we have left, short of total despair or revolution, is the barest shred of obesiance to the law. It is hard to believe that there is not some prosecutor somewhere who will not stand up for justice. If not, then the total bankruptcy of that route will also be made clear.

    What’s next then? In periods of historical struggle, the people themselves must find or create the mechanisms of social change. This is sure to happen, but in what form, or when, we can’t anticipate.

    Perhaps after millions come to realize that the “hope” Obama offered turned out to be another kind of cynical cant. Those old enough to remember will recall how the “credibility gap” fed the rebellion of the 1960s.

    Meanwhile, I am not ready to give up on the prosecution of these criminals domestically. Where there is a will, those prone to cliches might say, there is a way. But it’s not just a cliche, and the time is now.

  26. bobschacht says:

    David Addington are revealing. On one occasion, he quotes Addington thusly:

    If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.

    Waving the bloody shirt was even more effective for the administration internally than it was politically.

    This line of argument works best with people who have little confidence in our Constitutional system of government. Especially the neo-fascists who feel that previous administrations have been “hamstrung” by unreasonable obstacles that happen to be enshrined in articles of the Constitution, or in its amendments.

    It also works best on the Dutch Boy Hans people, who believe that their finger in the hole of the Dike is the only thing they can do that will stave off catastrophe.

    “Apres moi, le deluge” is not only the thought of desperate kings.

    Bob in HI

  27. Mary says:

    47 – I think the text of the President’s order in Feb 2002, and some comparison with what the MCA allowed him to cook up, is helpful

    As to the Afghanistan conflict, in Feb 2002, the Order read:…..=Printable

    2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows:
    a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva.
    b. I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise the authority in this or future conflicts.
    c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to “armed conflict not of an international character.”
    d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.

    1. Interesting that a) and c) talk about the determination of the DOJ, while b) talks about the determination of the AG AND DOJ.

    2. Only actual al Qaeda members and actual Taliban are covered by order exempting them from the application of the Conventions – while the application of the Conventions to Afghanistan in general (and to anyone other than a member of al Qaeda or the Taliban) is the public position.

    Compare (at least in part)then, with what he put out after the MCA and after all the long line of abuses and torture and mistakes etc. had come out:…..720-4.html

    Suddenly the President is specifically CLINGING to the MCA as a basis for his order:

    By the authority vested in me as President and Commander in Chief of the Armed Forces by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force (Public Law 107 40), the Military Commissions Act of 2006 (Public Law 109 366), and section 301 of title 3, United States Code, it is hereby ordered

    emph added

    And all of a sudden we have this vague reference to “associated forces” and even a bit of prestidigitation where the President says that his earlier, Feb order had ALSO covered “associated forces:

    (a) The United States is engaged in an armed conflict with al Qaeda, the Taliban, and associated forces . . . On February 7, 2002, I determined for the United States that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war. I hereby reaffirm that determination.

    emph added

    When he reaffirms a determination he never made – you have to figure that all the non-al Qaeda and non-Taliban have to be on his mind (for example, I think KSM was never a member of al Qaeda IIRC). Ok, if not on HIS mind, then on the order drafter’s mind, Addington I guess.

    He then goes to the power Congress gives him in the MCA to become the judicial branch and interpret treaties that have become laws of the US bc they were passed by Congress and he goes on to conclusively “interpret” what common Article 3 means vis a vis the CIA program, but somehow never gets to that Article 49 issue. He just ignores the issue of protected persons and shipping them around and about without POW protections, bc he is still relying on a designation of “unlawful enemy combatant” to escape application of protected persons analysis.

    However, he really then passes the buck. Instead of having himself, the person/entity Congress designated, make the determinations, he hands off the to the Director of the CIA (”the conditions of confinement and interrogation practices are to be used with an alien detainee who is determined by the Director of the Central Intelligence Agency: (A) to be a member or part of or supporting al Qaeda, the Taliban, or associated organizations” emph added) and Director of National Intelligence (”With respect to the program addressed in this order, the function of the President under section 6(c)(3) of the Military Commissions Act of 2006 is assigned to the Director of National Intelligence”)

    So instead of The Decider being The Decider, he has passed off his decisionmaking to underlings. Underlings who can be pardoned.

  28. Mary says:

    40 can you imagine if the destruction of Fallujah, or the family members of toddlers killed, ever received the same attention as Brittany? Or the actual living conditions of US soldiers and their treatment in the system received 1/50th the lip service as a catchphrase like “support the troops”

    It’s why WO is right about the need to build a narrative, though. IMO, FWIW.

  29. Hmmm says:

    OT — Hepting remanded to Walker’s Court in SF, i.e. state secrets appeal rejected:

    In light of the FISA Amendments Act of 2008, Pub. L. No. 110-261, we remand this case to the district court. We retain jurisdiction over any further appeals.

    • bmaz says:

      Yeah, that was a foregone conclusion. It was a required ministerial act once the FAA was signed and lodged. Take note of what this shows though. Despite all of the lofty constitutional issues, national security implications, complex fact set etc. permeating Hepting et. al, material and arguments so complex that Judge Walker’s decision in the trial court was 72 pages long, the effect and comprehensiveness of the after the fact abrogation and removal of ALL judicial authority, from the second most powerful Article III court in the nation, was so complete that the court literally could do nothing more than issue a two sentence order. Now that is some complete emasculation. Thank you for that Mr. Obama and Ms. Pelosi. This is on you.

  30. Hugh says:

    I would say that it worked more like this. David Addington writes up a draft opinion. He gives it to the OLC. Whatever stooge Goldsmith, Yoo, etc. is available at the OLC writes up another draft. Addington signs off on it. The opinion is then sent to the White House where Addington can wave it around and say see the OLC agrees with us on this.

  31. Mary says:

    24 – Maybe Conyers should have taken a look at how Congress is polling before he made a decision of relative popularity.

  32. Mary says:

    69- After the info about the meetings of “the principals” I think that by and large how it worked was that there were either a) tells from Bush on what he wanted done (like his inquiry into who gave Zubaydah pain meds) that others took and verbally issued out marching orders (like Tenet greenlighting the ramp up of torture). If and as specifics were discussed, some of the “war council” or “the principals” or just the OVP’s office, were verbally advised of what was contemplated – and they ok’d it. This is consistent with, for example, the claims that the plan to buy alive, with the coffin building a work in process, had been “ok’d” by WH lawyers already, and the allegations tieing in Ashcroft to approvals for all the things he tried to lay off at Yoo’s door.

    After the verbal oks, things probably went forward, with someone putting “get an OLC opinion that will cover what we are doing without us having to go too far into detail about it” on their list of things to do. Then the opinion was spit out to cover what was needed. This is why things like the torture memo even go into torture that DOES result in death as being not a biggie, as long as there was no intent. Bc by the time the written oks were coming out, that had happened and it was a tack on. It’s why it doesn’t fit, isn’t a part of an “intent” memo etc.

    • Hugh says:

      I don’t disagree that the OVP or principals were already engaged in or contemplating more of this stuff. Perhaps you are saying it more clearly than I am. But basically the reason the OLC opinions were tailor made was because Addington played a central role in their drafting. The OVP and principals weren’t seeking legal advice. They were seeking legal cover.

  33. bcgister says:

    W.O.: thanx for a sensible and tightly reasoned series of posts.

    I’d like to weigh in for leaving the investigation and prosecution of war crimes charges against the Bush-Cheney cabal to an international tribunal. My reasons follow:

    1. Something will be done faster than it will in this country under current conditions.
    2. I don’t think an unprejudiced trial could be carried out in the United States. Just to start the questions such a trial would raise: How many hollows in the Appalachians and Cascades would we have to search before finding jury members who weren’t disqualified by their predisposition towards a verdict? Which presidents’ appointees would be judging these proceedings?
    3. As an extension of ‘2,’ proceedings in a foreign country would be insulated from the undue influence of political factions in this country. In the very event of such trials, the American right is going to scream with all the voice it can muster. This is going to happen whether the proceedings are here or abroad. There is a significantly higher chance (even with Democratic control of all branches of the government) that this noise will influence the outcome of such proceedings at home than abroad.
    4. The opening of such proceedings may create the kind of pressure that the Democratic majority in congress needs to begin to put teeth into its investigations.
    5. My reasoning behind ‘4’ is doesn’t rely on the possibility that those Democratic congress crittters will subsequently be charged with obstruction for refusing to cooperate with such an international tribunal.
    My guess is that the primary influence would be an outgrowth of the negative publicity that the levelling of charges would generation for the then former members of the current administration. Hopefully, such charges would lead the national media to publicize, in a short time frame, the full range of abuses which Bush and his cronies endorsed and enacted in our name: kidnapping, holding suspects (many quite innocent) indefinitely without charges in what, to all appearances, are concentration camps, torturing suspects, sending suspects to third countries to be tortured, and so on — there should be no need for such widey misunderstood charges as “obstruction.” Without anyone except for the right wing running interference, with luck, such publicity would be enough to turn public opinion against Bush Co., LLC and, so, to pressure our new precedent and Congress to cooperate with such an international tribunal. This would allow more damning documents to be released, adding fuel to the fire and intensifying the process. A full airing of, and accounting for, what eight years of Cheney/Addington brought us has to be the goal.
    That goal has to be to strip away any sense that these crimes were part of a legitimate enterprise and were carried out as authorized government functions. Only by discreditting this administration will it be possible to move beyond, and insure against a repetition of, the damage that it has done.
    5a. This effect could be intensified if former members of the administration decide to try to pull their chestnuts out of the fire by arranging to depose and testify for the prosecution.
    5b. The same could be said for testimony and evidence presented at such trials; although, given the way such international courts operate, the trials themselves could be quite a long time in coming.
    6. Finally, the momentum from such a process (and a new Attornet General) could push Congress and the executive branch to begin an investigation of the substantial violations of domestic law (up to treason) which would appear to have gone down since this crew was empowered in the judicial coup of 2000. Obviously, an international tribunal would have no interest in pursuing such allegations.

    These are the best outcomes which I can anticipate. If this can be carried off domestically, then I’m all for it. As it is, I suspect that it is an outcome that can only be realized by a court constituted in one of Western Europe’s established democracies. To maintain the legitimacy of the proceedings, the assholes must have their due process rights respected.

    • bmaz says:

      there will be nothing of the sort even contemplated in any first order countries in the world, and certainly not in Western Europe. It is highly debatable as to whether any such jurisdiction would even be possible, and even in the beyond remote event that it was determined to exist, it would never be exercised. What you suggest is thoughtfully laid out, but there is not a chance in hell that it will occur. None.

      • ondelette says:

        What do you mean nothing contemplated in first order countries of the world? Do these cases qualify? So far it’s against just Rumsfeld, but that could easily change. Also, the ICC ran an investigation in 2006, it didn’t proceed because it lacked evidence of a plan or policy w/resp to American torture (in Iraq on that complaint). There is no lack of evidence now. These are international crimes, committed against citizens of other countries. The idea that the U.S. can set the timetable and charges and pretty much decide how much prosecuting it wants to do is like believing our mounting debt will never need to be repaid.

        • KenMuldrew says:

          “The idea that the U.S. can set the timetable and charges and pretty much decide how much prosecuting it wants to do is like believing our mounting debt will never need to be repaid.”

          Nevertheless, it is the case. Unless the U.S. implodes in a manner similar to the former Soviet Union, then the ICC will never prosecute the principals. The balance of power that the U.S. holds over the rest of the world is simply overwhelming. And the idea that Americans could stand by and let a court in Europe try its leaders because the Americans could not bring themselves to carry out the prosecution at home is crazy.

          If you can find the votes in the Senate to ratify the Rome Statute then you can find the votes in the senate to impeach.

          • ondelette says:

            Okay, but that’s an American exceptionalism argument, and should be tagged as such. Sounds very realpolitik, but the value of American assets has declined precipitously recently, the military appears near broken, and all it takes to ruin a supposed big power is a lot of countries ganging up. But even the most liberal American believes “It can’t happen here”. Like our debt.

            You may be right. But this is the first year of my not too short life when the Canadian dollar has been worth more than the American dollar. Countries are converting their assets to Euros. Small powers are becoming hegemonic regionally because it is perceived that the U.S. can’t really maintain its power extensions. The only thing preventing something from happening is inertia and the belief that it might be bad for business.

            When the change comes, it will come quickly. If even the most liberal lawyers in America believe we should be held to a different standard than others, the inability to see hatred coming will be mind numbing when it comes.

            And BTW, you don’t need to be a signatory of the Rome Statute to be indicted, ask Omar al-Bashir.

            • KenMuldrew says:

              One certainly hopes so. And one hopes that we are looking at Obama in much the same light that Frederick Douglass looked at Lincoln. The resolve and method must have seemed absolutely bewildering at the time, yet Douglass summed up the man’s accomplishments with respect:

              “I have said that President Lincoln was a white man, and shared the prejudices common to his countrymen towards the colored race…. His great mission was to accomplish two things: first, to save his country from dismemberment and ruin; and, second, to free his country from the great crime of slavery. To do one or the other, or both, he must have the earnest sympathy and the powerful cooperation of his loyal fellow-countrymen. Without this primary and essential condition to success his efforts must have been vain and utterly fruitless. Had he put the abolition of slavery before the salvation of the Union, he would have inevitably driven from him a powerful class of the American people and rendered resistance to rebellion impossible. Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country, a sentiment he was bound as a statesman to consult, he was swift, zealous, radical, and determined…”

              One hopes to be able to say something similar eventually, but that hope is faint.

              We live in an age where dissent is readily channeled into oblivion, where like-thinking individuals rarely have to confront contrary opinion and ideas, yet they enjoy the sense of community nonetheless. There are no solitudes, yet there are very real walls separating vast sections of the populace. So the small-c conservatives (those who simply like things to stay the way they are) are able to live normal lives without encountering the discomfort that the protesters would like to impose upon them. The dissenters, for their part, are mollified by the act of expressing dissent yet they cannot reach their countrymen, even their very neighbors, to challenge the criminality and mendacity that is so obvious to them. It seems to me that this is a very dangerous path to follow. The apparent stability cannot last indefinitely, and the longer it lasts, the greater the separation becomes between these separate communities (separate in thought and knowledge, but close in physical proximity). Eventually some nucleation event will serve to bring them into open conflict, and then a consensus will be forged, but it will likely not be through civil means.

              Democracy is meant to spread dissent throughout a population faster than violence can be used to counter that dissent. Thus are people forced to find consensus through negotiation and argument. The Rovian era exists because of intellectual isolation; the system is being gamed to amass power without having to resort to the historical methods of totalitarian systems. It’s difficult to see how to attack this larger problem when there are so many sharper knives at one’s throat. Preserving the ideals of the US constitution is, however, a necessary component of the larger battle, so at least that seems to be part of the good fight.

              • readerOfTeaLeaves says:

                I think you make some excellent points, especially this:

                Democracy is meant to spread dissent throughout a population faster than violence can be used to counter that dissent. Thus are people forced to find consensus through negotiation and argument. The Rovian era exists because of intellectual isolation; the system is being gamed to amass power without having to resort to the historical methods of totalitarian systems.

                When people watch teevee, when people hang out on the Internet, when people think of politics as ’sport’ — they only want to know ‘the winners’ without any true grasp of what future has been obliterated (ie, Al Gore and what he would have accomoplished on Climate Change between 2000 and today), as opposed to what we actually end up stuck with (ie, being lied to, having the armed forces used on behalf of Oil Majors) things come undone.

                Having watched people who had such low opinions of their own worth that they didn’t feel they could stand in a public meeting and provide testimony about why their streams should not be pollluted and why their lands should not be flooded by overlogging, in many respects I think that it comes down to some kind of workshop mechanism.

                If people are able to get help with basic skills: ‘let’s go over what you want to say… now practice… now refine… now you’re ready…’ then they can be extremely effective and surprise themselves. And then they make a difference, and it changes them.

                Getting that started strikes me as fairly difficult for many of the reasons you state.
                Social isolation is one big piece of the puzzle.

      • bcgister says:

        While I agree that is almost certain to never happen, it strikes me as equally unlikely that any serious legal action is going to be taken against the soon-to-be-former members of Bush Co., LLC in this country. There are too many interests militating against it, including those of an incoming Obama administration, whom I don’t see hurrying to give away the augmented powers claimed for the executive branch by this country’s current leadership.
        Highlighting the ends which those powers served would only invite having them rolled back and, so, is contrary to any interest in keeping them. I, therefore, doubt that it will happen. In that case, any stimulus for action against American war criminals (and I’m not talking about the little fish who are regularly thrown to the sharks) will have to come from outside the U.S.’ federal government.
        God willing, I will be voting for Obama; but, for the reasons I just touched on, I’m quite skeptical that his election will reverse the federal government’s authoritarian turn.
        Then again, I could be pleasantly surprised.

  34. plunger says:

    To those inclined to parrot what they’ve been told about 9/11:

    You actually don’t KNOW that there were ANY hijackers, let alone their country of origin (7 are still alive – therefore the identity and status of the others is in doubt). There were NO Arab names on ANY flight manifests on the 9/11 flights. The planes were ALL controlled remotely by SYSPLAN technology thanks to then DOD Comptroller, Dov Zakheim.

    You claim that Pakistan is providing safe harbor for Osama Bin Laden. I’m telling you here and now that the man does not exist, and you have virtually no proof to the contrary. The FBI refuses to authenticate the purported Bin Laden 9/11 confession video, and he is not wanted in connection with 9/11 according to the FBI.

    Stop doing the propagandists job for them. Question everything you hear and most of what you see. Talk about this subject all day, every day, and don’t let the trolls shout you down. We’re all obligated to learn the truth.

    The A-3 Skywarrior that hit the Pentagon was owned by Raytheon. The silver A-3 was painted with the American Airlines logo – a piece of which is part of the debris that was photographed outside the Pentagon on the lawn. The outer half of the wings sheered off on impact, because these wings were designed with hinges to fold up for storage on the deck of an aircraft carrier. Pieces of the wings were visible outside the Pentagon, and were quickly hidden from view.

    This was a building full of defense specialist who instantly recognized the aroma of explosives on the scene in the aftermath.

    No cell phone calls were made from any flights on 9/11. That was and remains a physical impossibility.

    The explosion you see in the video at the Pentagon is NOT fuel from the aircraft. This A-3 was converted into a missile itself. The “plane” is a “missle.”

    Against all protocol (and the law), the lawn of the Pentagon became a hive of activity as Government employees scurried to taint a crime scene (and the site of what would typically result in an FAA investigation), removing all essential evidence.

    9/11 was an operation of the US Government in concert with Israel and The Crown – with the complicity of those at the highest levels of NORAD, NSA, CIA, FBI and other agencies.

    For a list of the criminals, follow the money, the “Indictments,” the “Retirements,” the “Promotions,” and the Medal Of Freedom Award Winners.

    Hundreds were in on it…thousands know the truth.

    Now you do.

    CNN Correspondent Jamie McIntyre claimed on live TV last week that he photographed some of the debris, including the “cockpit” found outside of the building in the immediate aftermath. He said this in as part of the Government/Media Orchestrated PsyOps event which accompanied the release of the “smoking missile” video – all in a carefully-scripted effort to tell the viewer that they were seeing a 757 on the video that WAS NOT THERE.

    One by one, hundreds of prominent Americans – in this case, Robert D. Steele – are no longer able to deny what has been so painfully obvious to so many millions of us, for so long.

    It is with great sadness that I conclude that this book is the strongest of the 770+ books I have reviewed here at Amazon, almost all non-fiction. I am forced to conclude that 9/11 was at a minimum allowed to happen as a pretext for war (see my review of Jim Bamford’s “Pretext for War”), and I am forced to conclude that there is sufficient evidence to indict (not necessarily convict) Dick Cheney, Karl Rove and others of a neo-conservative neo-Nazi coup d’etat and kick-off of the clash of civilizations (see my review of “Crossing the Rubicon” as well as “State of Denial”). Most fascinatingly, the author links Samuel Huntington, author of “Clash of Civilizations” with Leo Strauss, the connecting rod between Nazi fascists and the neo-cons.

    This is, without question, the most important modern reference on state-sponsored terrorism, and also the reference that most pointedly suggests that select rogue elements within the US Government, most likely led by Dick Cheney with the assistance of George Tenet, Buzzy Kronguard, and others close to the Wall Street gangs, are the most guilty of state-sponsored terrorism.

  35. Mary says:

    79 I think here you’ve said it as clearly as anyone can: “basically the reason the OLC opinions were tailor made was because Addington played a central role in their drafting”

  36. Hugh says:

    Not religious or anything but here btw is the Romans 7 passage in New Testament Greek

    15 ο γαρ κατεργαζομαι ου γινωσκω ου γαρ ο θελω τουτο πρασσω αλλ ο μισω τουτο ποιω
    16 ει δε ο ου θελω τουτο ποιω συμφημι τω νομω οτι καλος
    17 νυνι δε ουκετι εγω κατεργαζομαι αυτο αλλ η οικουσα εν εμοι αμαρτια
    18 οιδα γαρ οτι ουκ οικει εν εμοι τουτεστιν εν τη σαρκι μου αγαθον το γαρ θελειν παρακειται μοι το δε κατεργαζεσθαι το καλον ουχ ευρισκω
    19 ου γαρ ο θελω ποιω αγαθον αλλ ο ου θελω κακον τουτο πρασσω
    20 ει δε ο ου θελω εγω τουτο ποιω ουκετι εγω κατεργαζομαι αυτο αλλ η οικουσα εν εμοι αμαρτια
    21 ευρισκω αρα τον νομον τω θελοντι εμοι ποιειν το καλον οτι εμοι το κακον παρακειται
    22 συνηδομαι γαρ τω νομω του θεου κατα τον εσω ανθρωπον
    23 βλεπω δε ετερον νομον εν τοις μελεσιν μου αντιστρατευομενον τω νομω του νοος μου και αιχμαλωτιζοντα με τω νομω της αμαρτιας τω οντι εν τοις μελεσιν μου
    24 ταλαιπωρος εγω ανθρωπος τις με ρυσεται εκ του σωματος του θανατου τουτου
    25 ευχαριστω τω θεω δια ιησου χριστου του κυριου ημων αρα ουν αυτος εγω τω μεν νοι δουλευω νομω θεου τη δε σαρκι νομω αμαρτιας

    I suppose there are parallels with Gandalf but this sounds like what he might be thinking if he had taken the ring but then again if he had taken the ring he would be too far gone to think it.

    I am no scholar of Greek, just an amateur and mostly Homeric but verse 15 has a nice turn of phrase to it. And the “εσω ανθρωπος” the “inward man” is famous.

  37. stryder says:

    “The statesman will invent cheap lies,putting the blame upon the nation that is attacked,and every man will be glad of those conscience-soothing falsities,and will diligently study them and refuse to examine any refutations of them; and thus he will by and by convince himself that the war is just and will thank God for the better sleep he enjoys after this process of grotesque self deception”

    Think of the press as the great keyboard on which the gov can play

    Joseph Goebbels

  38. bobschacht says:

    Currently on CSPAN:
    “Examining the Presidency”
    Gene Healy, Senior Editor, Cato Institute up, and he’s not happy with Bush– except for stimulating a greater debate on executive power.


    Bob in HI

    • bobschacht says:

      The Cato program on CSPAN is worth watching. All(?) of the participants profess to be Originalists, but they’re not in the Scalia mould.

      If they came to any conclusion at all, it is that they fault Congress for not using the Constitutional powers at its disposal to combat excessive executive power.

      Yes, we should, as Emptywheel, WilliamOckham, and bmaz have been doing, expose the horrid acts of the BushCo executive. But all that will be of no avail unless we can get Congress to do its job. And don’t tell me, as Pelosi, Conyers, and the Democratic establishment has been telling us, that Congress can’t do anything until it gets a “veto proof majority.” That’s just bullshit. There’s plenty that the Congress can do, and its written right in plain sight in the Constitution.

      Bob in HI

      • bmaz says:

        That is exactly right. I have long had pretty much the view of WO; find pressure point cases that are simply so easy to understand, and so obviously criminal, that the discussion in earnest must be had on Capitol Hill and throughout America. We have made a lot of headway. If literally not for the affirmative, and aggressively so, efforts of the entrenched Democratic leadership to obstruct this movement, it would have happened long ago. It is a truly remarkable thing.

        This is exactly why I was focused so intently on the retroactive immunity issue. It was blindingly easy to frame. They broke the law. If they didn’t break the law, they wouldn’t need immunity. The law is so easy to understand that a child could see the violation. If you do X without a warrant, you have broken the law. They did X. They had no warrant. And I figured that when they saw that it really was being done to all of us, the American public would recoil. I got that wrong for the most part eh? But still, headway was made; the battle left a mark and weakened them in the process.

        Now the lies to war angle as set out in Suskind’s book has at least a chance of gaining some traction. And the dents made from the FISA battle, the US Atty battle, etc. have left the ground softened just a little. I also think the torture angle could really gain traction with a few breaks too. When you are fighting the establishment of both parties, the sledding is tough. We have been making some headway, landing some cumulative body shots; whether it can be consolidated and elevated into any knockout punches, I don’t know. If I had to bet, I wouldn’t put my own money on it, but the effort is worthy and must be made. You cannot win if you don’t play; I’d feel a whole lot worse about all this if I wasn’t at least trying to fight.

        • bobschacht says:

          “find pressure point cases that are simply so easy to understand, and so obviously criminal, that the discussion in earnest must be had on Capitol Hill and throughout America. “

          That’s what I used to think, too. Only, we’ve come to pressure point after pressure point, and we keep running into Pelosi, who won’t put impeachment on the table where it belongs, and where the leadership is too spineless to use inherent contempt. Its like Pelosi’s disingenuous “Just tell me what crime he has committed” BS.

          We need some other prod to get the Democrats to move.

          Bob in HI

          • klynn says:

            Like I suggested at 11, a “mail storm” just might be a start. But it HAS to be big. It would mean all of us getting many friends to join in the effort. I know this sounds ineffective, but done correctly, it could cause a “wave” of awareness on the Hill which could be historic.

            Boy, I wish that print option was on the site, it would make “grassroots” enlightenment go so much easier…

            WO, my son read your posts and appreciated them quite a bit. He came away stating that historically the Repubs have been the party standing on “smaller government” but pitching it as “less personal intrusion democracy”. The truth is, Bush-Cheney have worked for “smaller government” in the form of unitary executive rule, and it’s result has created more personal intrusion, void of the rule of law – thus no democracy.

  39. WilliamOckham says:

    I think it’s time to start building a consensus around the idea that the Obama Administration should appoint a Special Prosecutor to investigate potential war crimes by the current administration. It has that post-partisan feel that Obama likes; it wouldn’t ‘distract’ the Congress from pursuing his agenda; and Special Prosecutors are notoriously hard to rein in, just what we need in this case.

    • readerOfTeaLeaves says:

      I think it’s time to start building a consensus around the idea that the Obama Administration should appoint a Special Prosecutor to investigate potential war crimes by the current administration.

      Completely agree.
      But IMHO, it’s going to have to be backed by a lot of business leaders.
      And if I’m reading the tea leaves correctly, some of them should be reasonably motivated to help put a little (private) pressure on their DC contacts to see to it that this mess is cleaned up.
      As well as pressure from the ABA.

      If nothing else, American attorneys who operate in large, multinational firms have plenty of reason to protect the American **legal system** since it’s their bread and butter — to say nothing of their long term financial and social stability. Mess with the legal system, and their skills, networks, and life’s work is devalued.

      • Leen says:

        agree. But with folks advising him to repeat that as a nation we need to “move on”, “turn the page”, “let by gones be by gones” holding the Bush administration accountable for their many crimes does not seem to be a priority.

  40. bmaz says:

    I don’t believe that the US should be held to a different standard than other, I think it will be. For all the talk about how “stretched thin” and “broken” and such that the military is supposed to be, and it may all be true, it is still far more capable than any other military in the world. It isn’t just about the numbers and status of the ground troops, and that is certainly well diminished; no country, and really, probably not even any group of countries that could ever be foreseeably aligned contra, can come close to matching the air and naval power of the US, and ability to project it globally. Then there are the submarines. You sure don’t want to contemplate the scenarios where those aspects of our military have to be substantively used, that would not be a good thing, but don’t underestimate the overwhelming power that rests there. No one even close in those regards. You are right about the economic issues, but to much of the world is commingled with us. And they cannot allow a run on us, as screwed up and pathetic as we are, because they can’t get their value out quickly enough to not go down with us. Over time, they are certainly going to be divesting as you suggest, and when enough of that has been done, then we will be truly fucked. Isn’t happening anytime soon though, and it won’t occur in a sufficient enough degree within the next 5-8 years, which is maybe the window for which the war crimes you want might still have the impetus to get done.

    Don’t get me wrong, I wish you were right; I would love to see it. But it is not happening. And there is one other factor. No American Administration, Obama or any one else for that matter, is ever going to willingly sanction that happening. Some country snags Bush, Cheney, Rumsfeld, whoever, for such a prosecution, the US will forcefully go get them. I’m serious about that. I wish it were different to some extent, but it is not.

    • readerOfTeaLeaves says:

      Not sure that I agree with you.
      Look at what Comey went through; the fact that Goldsmith left, and that Levin was kicked out b/c he didn’t give OVP what it wanted.
      Note also the number of retired military who have spoken articulately against Bu$hCheney.
      The oil speculators and oil-and-gas people may still be in their corner, but a whole lot of people have ‘moved on’.

      True, some people would see it as an ‘attack’ on Bush/President.
      But that’s not really the purpose.
      If there were some clear thinkers in Congress, who knew how to craft a narrative and let it play out over weeks, I think that once people connected all the dots, they’d sanction cleaning up this mess.

      My hope would be for Levin to lead hearings of this kind, but it would require a lot of focus on details, and then explaining to people (as EW does, as WO has done, as you do) why the details matter and what they mean in the larger narrative.

      I don’t believe most Americans supported Abu Gharib.
      I don’t believe most Americans are okay with being lied to.
      I don’t believe most Americans wanted their tax dollars handed off to Hallburton et al in the form of no bid contracts.
      I don’t believe most Americans support the appalling conditions at Walter Reed.
      I could go on, but I hope that I’ve made my point.

      It’s quite simple: you put a picture of Abu Gharib up and say to people, “Do you realize that people in China, India, Chile think that you agree with this?” If you want them to think otherwise, then you need to push for a Special Prosecutor.

      • bmaz says:

        I agree with all that. But it is one thing to think that they might come around to prosecution here, unlikely but at least possible; but quite another that the US government is going to sanction some other country to snatch and try our former governmental officials. It is a precedent that will never be set without joinder in an official ICC or similar compact. But there is, and has been, none to date; until then, foreign attachment of the physical bodies for criminal trials just won’t be permitted.

    • bmaz says:

      Holy crap. No clue who that name was, so I went over to cspan for a couple of minutes. That is fucking scary stupid. This is a survival of the fittest world. In the long term, that dudes gene set just are just not going to survive in the pool. Had a whole roomful of automaton idiots even dumber than he is apparently because they are sitting there like druids listening to the nonsense. Amazing. Man, thats five minutes of my life I won’t get back….

  41. pdaly says:

    Nice follow up post, William Ockham.

    A small example of the intersection of politics and business allowed on TV right now is the Beijing controversy over the likely Chinese government’s falsification of some of the ages of their female gymnasts. The IOC took China’s word for it and there was no further investigation. It seemed to be a done deal. Move on.

    Saturday is the last day of the Olympics, and now the question about the gymnasts’ underages is back in the news again (at least here in the US).

    I suppose some American politicians and businessmen have weighed the risks and benefits of calling for an investigation of China with the inevitable potential fallout of pissing off our biggest manufacturing/trading partner.
    I laughed when the newscaster said the story is still alive because of our investigative reporters have been dogged about this controversy.

    My next reaction is to applaud them. Maybe from this pool of sports reoprters will emerge our renewed independent press. Let’s prod them to expand their investigative vision to US politics.

  42. JamesJoyce says:

    The Gliewitz Incident created was by Nazis to created the perception of an attack on Germany, by Polish saboteurs.

    911 provide the opportunity for Bush/Cheney to take a page out of the Nazi’s play book to exact the “Iraq Oil Plot.” In this case an alleged preemptive strike against a nation, Iraq which had no connection to the perpetrators of 911. The lies and fraudulent justification for the Iraq invasion/occupation is exactly what the Nazis did to Poland, the “Blitzkrieg.”

    The secrecy and fundamental dysfunction of Bush/Cheney policy runs contrary to basic American values. The use of executive privilege and state secrets to shield our democracy from viewing the true nature of these policies, which are crimes. This is the same tactics utilized by fascists to hide crimes from the German people and the world. As KO put is the other night, we have an embryonic police/fascist state created by neo fascist. This embryo must be aborted as its existence is a threat to everything America’s stands for.

  43. skdadl says:

    I need to catch up to all this brilliance. Thanks so much, WO and bmaz and everyone else here. But gee: take two days off, and a girl has to go excavating for the bmaz post she wants to crib for her Saturday night GTMO series. Y’all are just too good.

    • MarieRoget says:

      Catching up for me is requiring a 2nd (ok, sometimes 3rd) reading of all WO & bmaz posts in tandem. You’ve done an exceptional job this wk, WO & bmaz. Have forwarded links to yr. posts to all on my email addy list every day. Thread commenters ditto.

      Eagerly awaiting more of yr. GTMO series over @ pogge, skdadl. Maybe I should start commenting in the threads over there in stead of lurking around looking over everyone’s shoulders.

  44. Nell says:

    Spelling correction (not only because it’s a person’s name, but because and the person is someone you’re inspired by and will probably mention in future):

    Philippe Sands.

    • WilliamOckham says:

      Sheesh, I looked it up because I always spell it wrong and I still messed it up.

      Thanks, I’ll fix it.

  45. bmaz says:

    Hi folks. Been awful busy during the last 24 hours, but am mostly back now. I am working on a couple of things and will be back with at least one of them in an hour or so give or take. I am not, as most have likely picked up on, Mr. Prompt and Fast, so the phrase “give or take” is purely rhetorical; it is always to the longer end of things.

    In the meantime, feel free to discuss away on anything you like. I understand that Obama has made a surprise pick for VP and it’s Diane Feinstein!

    • WilliamOckham says:

      Just in time, too. I’ll be heading out in a couple of hours to spend the weekend in a place with little or no net access. Of course, I’ll have my mobile device, so I might be able to post comments.

      I want to express my appreciation for all those who participated in the discussion of my little obsession with Mr. Hiwa Abdul Rahman Rashul. I just realized that by adding the ‘mister’ his name becomes a stand alone line in iambic pentameter.

    • rosalind says:

      oh man, bmaz. you almost gave me heart failure there. bad enough lady di is threatening a run for governator of my fair state. the woman needs to take her war profits and go away.

    • readerOfTeaLeaves says:

      I understand that Obama has made a surprise pick for VP and it’s Diane Feinstein!

      (Dives under the desk…)

    • Leen says:

      here is a story from the former field director of the Edwards campaign in South Carolina (she is now the field director of the Udall for Senator in Colorado (so this is straight from the horses mouth). Last night in the Boulder office for Obama she and I were discussing what took place in South Carolina (I had been there volunteering for Edwards in Charleston). I was aware that the Edwards folks were working for free at that point (Feb of this year). She told me that when Edwards found out that his campaign field folks were working for free he immediately decided to drop out of the race before Super Tuesday (knowing he was not going to change the race) and realizing that the campaign had enough money either to move forward or pay these workers for February and also until the end of March. He chose to stop the campaign so that these folks could be payed for Feb and until the end of March(when they were not working). According to her he also made sure they had health care.

      did anyone read about this anywhere?

      Was I so disspointed that Edwards fell prey to his own ego and selfish needs. You betcha. Do I still have respect for his stance on many issues. Health care, poverty, no lobbyist in a Presidential administration. You betcha. I still want to witness John Edwards become U.S. Attorney General.

  46. Mary says:

    Iambic pentameter was lurking on the fringe, waiting to participate in the theatre of it all.

    127/130 – The weird phrasing about “chain of command” from Richer and Maguire in the press release hit me as kind of like having some kids standing, frantically pointing at one guy, behind his back, while saying “I can certify that no one standing behind me was involved” OVP wouldn’t be in CIA’s chain of command, would it? And both Libby and Hannah are getting requests to appear. But in the end, it won’t amount to much. The desperation to keep St. Nancy cleansed in the blood of the lamb apparently will trump even the politically (as well as legally and morally) sound approach of ramping up a big investigation into the widely disliked Cheney and tieing the Republican to anything and everything about him going into the elections.