What Explains Commander Lippold’s Newfound Impatience on the Cole Prosecutions?

Eight and a half years ago, Commander Kirk Lippold’s ship, the USS Cole, was attacked by Al Qaeda. As Richard Clarke explained it in Against All Enemies, the Cole should never have been in Yemen.

For over three years the CSG had been concerned with security at the ports in the region that were being used by the U.S. Navy. Steve Simon had written a scathing report on security he discovered at the Navy pier near Dubai in the United Arab Emirates. Sandy Berger had sent the report to the Secretary of Defense. I had personally crawled around and climbed up into sniper positions at the U.S. Navy facility in Bahrain because of repeated reports that al Qaeda planned to attack there. The Defense Department had fixed the problems in Bahrain and the UAW, but bases weren’t the only points of vulnerability. When the USS Cole was attacked, we were shocked to learn that the Navy was even making port calls in Yemen.

Mike Sheehan, then the State Department representative on the CSG, had summed up our feelings: "Yemen is a viper’s nest of terrorists. What the fuck was the Cole doing there in the first place?"

By late November, the Yemenis provided information to the US that preliminarily tied the attack to Al Qaeda; by late December, the case became stronger. Yet Clinton held back from a response because, the 9/11 Commission reported, CIA and FBI never conclusively tied the attack to Al Qaeda and besides it didn’t seem like Clinton wanted to know anyway.

Clarke recalled that while the Pentagon and the State Department had reservations about retaliation, the issue never came to a head because the FBI and the CIA never reached a firm conclusion. He though they were "holding back." He said he did not know why, but his impression was that Tenet and Reno possibly thought the White House "didn’t really want to know" since the principals’ discussions by November suggested that there was not much WhiteHouse interest in conducting further military operations against Afghanistan in the administration’s last weeks.

The Clinton Administration refused to do what Clarke and Sheehan pushed to do: to retaliate militarily. Soon after Bush was inaugurated, Clarke started pushing for a response again.

In his January 25 memo, Clarke had advised Rice that the government should respond to the Cole attack, but "should take advantage of the policy that ‘we will respond at a time, place and manner of our own choosing’ and not be forced into knee-jerk responses." Before Vice President Cheney visited the CIA in mid-February, Clarke sent him a memo–outside the usual White House document-management system–suggesting that he ask CIA officials "what additional information is needed before CIA can definitively conclude that al-Qida was responsible" for the Cole. In March 2001, the CIA’s briefing slides for Rice were still describing the CIA’s "preliminary judgment" that a "strong circumstantial case" could be made against al Qaeda but noting that the CIA continued to lack "conclusive information on external command and control" of the attack. Clarke and his aides continued to provide Rice and Hadley with evidence reinforcing the case against al Qaeda and urging action.


Rice told us that there was never a formal, recorded decision n ot to relatiate specifically for the Cole attack. Exchanges with the President, between the President and Tenet, and between herself and Powell and Rumsfeld had produced a consensus that "tit-for-tat" responses were likely to be counterproductive. This had been the case, she thought, with the cruise missile strikes of August 1998. The new team at the Pentagon did not push for action. On the contrary, Rumsfeld though that too much time had passed and his deputy, Paul Wolfowitz, thought that the Cole attack was "stale." Hadley said that in the end, the Administration’s real response to the Cole would be a new, more aggressive startegy against al Qaeda.

Yet Roger Cressey thinks the Bush Administration didn’t respond to the Cole simply because it hadn’t happened on their watch.

"During the first part of the Bush administration, no one was willing to take ownership of this," said Roger W. Cressey, a former counterterrorism official in the Clinton and Bush administrations who helped oversee the White House’s response to the Cole attack. "It didn’t happen on their watch. It was the forgotten attack."

From December 17, 2000 forward, the US had confirmation of Rahim al-Nashiri’s role in the Cole bombing. He was protected by the Yemeni Government.

At the time, Yemeni authorities insisted that Nashiri had fled the country before the Cole bombing. But a senior Yemeni official said that was not the case and that Yemeni investigators had located Nashiri in Taizz, a city about 90 miles northwest of Aden, soon after the attack. The official said Nashiri spent several months in Taizz, where he received high-level protection from the government. "We knew where he was, but we could not arrest him," said the official, who spoke on condition of anonymity because he feared retaliation.

He was not arrested until November 2002. Sometime thereafter, al-Nashiri was water-boarded. In 2005, at a time when the CIA was at risk for having violated the Convention Against Torture, the CIA destroyed tapes of Nashiri’s interrogation sessions. He was not charged by the US until July of last year, but by that point, Nashiri had recanted his confession, saying he had confessed because he was tortured (among the things he confessed was that Osama bin Laden had a nuclear weapon).

Meanwhile, Yemen established a virtual revolving door for the Cole participants it had in custody: with show trials, followed by prison escapes. 

Some Yemenis have questioned whether their government has other motives. One senior Yemeni official, speaking on the condition of anonymity, said Badawi and other al-Qaeda members have a long relationship with Yemen’s intelligence agencies and were recruited in the past to target political opponents.

Khaled al-Anesi, an attorney for some of the Cole defendants, said Yemen had rushed to convict them. But he said he is still mystified by the government’s subsequent handling of the case.

"There’s something that doesn’t smell right," he said. "It was all very strange. After these people were convicted in unfair trials, all of a sudden it was announced that they had escaped. And then the government announced they had surrendered, but we still don’t know how they escaped or if they had help."

In other words, there were many things that went wrong in seeking justice for the Cole bombing: the reluctance on the part of both the Clinton and Bush Administrations to retaliate for the bombing, Yemeni refusal to cooperate in any real legal proceedings against the plotters, the taint of evidence the US had gathered through torture.

Yet through all that time, Lippold has apparently only spoken up publicly once, in 2006, when he called for the US to put more pressure on the Yemenis to bring plotters to justice.

That might be because Lippold’s role in the Cole bombing has itself been controversial. Lippold’s initial story–that the boat had been involved in the mooring operation bringing the ship into the port–was quickly challenged. Then, days later, it was reported that the ship had not followed required security procedures in Aden.  The Navy conducted an investigation into his actions, and initial results of the investigation showed that there had been some failures to implement the security plan–though Lippold may have been ordered not to follow all security precautions because of diplomatic concerns. These orders from higher officers, along with DIA warnings that the Navy ignored, may be why the report did not, ultimately, call for any punishment for Lippold; in announcing that decision in one of his last acts as Secretary of Defense, William Cohen attributed blame to the entire chain of command. Yet later that year, Senator Warner criticized the Navy’s decision not to punish Lippold and, when the Navy submitted Lippold for promotion to Captain in 2002, that promotion was not approved by the Senate. Finally, in 2006, later in the year he had called for more pressure on Yemen, his name was finally taken off the promotion list. In the last decade, Lippold has had close working associations with Richard Danzig and Mike Mullen. 

So maybe Lippold has had good reason not to complain publicly about the lack of any real response to the Cole bombing, or about the Bush Administration’s failure to hold either the plotters rounded up by Yemen or the detainees it held in CIA and DOD custody responsible for the bombing–because doing so might hurt his career.

But there’s another reason he may not have been too harsh about the way that the US’ own screw-ups with al-Nashiri have delayed his prosecution: after 9/11, Lippold worked at the Joint Chiefs of Staff crafting detainee policy.

He recently served as Deputy Division Chief and Politico-Military Planner, Joint Chiefs of Staff, Directorate for Strategic Plans and Policy (J-5), War on Terrorism Division, where he was instrumental in crafting detainee policy for the war on terrorism during its initial stages following the 9/11 attacks. [my empahsis] 

Given that fact, don’t you think it rather remarkable that on the very day that a Bush dead-ender judge defied Obama’s request for a delay in al-Nashiri’s trial, Lippold was ready at hand to strongly attack Obama’s decision to shut down Gitmo?

‘We shouldn’t make policy decisions based on human rights and legal advocacy groups,” retired U.S. Navy Cmdr. Kurt Lippold said in a telephone interview. "We should consider what is best for the American people, which is not to jeopardize those who are fighting the war on terror — or even more adversely impact the families who have already suffered loses as a result of the war."


On Thursday, Lippold called Pohl’s decision "a victory for the 17 families of the sailors who lost their lives on the USS Cole over eight years ago.”


But Lippold also denounced suggestions that the Pentagon official who oversees the Guantanamo legal cases, Susan J. Crawford, could withdraw the charges, without prejudice, which would allow them to be reinstituted later, should the administration want.

That move, Lippold said, would be "a tragic, politically based mistake. We are now politicizing the war on terrorism . . . an order of magnitude worse than anything we’ve done."

"If she decides to drop all charges against detainees simply so that the president’s executive order could be followed that smacks of undue command influence and politics," Lippold said.


"I don’t think we should close Guantanamo Bay until we have some process in place, until we understand the impact of closing it, until there is a much more robust review by the international community on how to deal with these detainees," he said. "To bring them to the U.S. and give them the same constitutional rights that we as American citizens have earned is an affront to the decency of these families and should absolutely not be allowed."

And voila, here we have him doing to the cable news circuit, appearing on this morning’s Morning Joe.

Of course, both McClatchy and Morning Joe failed to mention Lippold’s role in crafting detainee policy, something that seems just as central to his objections to Obama’s policies as his role as Commander of the Cole.

Interestingly, Lippold’s newfound impatience on the Cole prosecutions appears to coincide with his very recent engagement with Military Families United (his association with the group was announced to their Facebook group on February 2).

I’ve recently become associated with a group called Military Families United that truly represents the families of Blue and Gold Star folks that are out there, defending our freedom worldwide.

Military Families United popped up last summer and has fought for some important policies–like improved veterans care. But one of the goals of the 501c4 appears to be to brand Obama’s action–which in the case of ending torture will make members of the military safer around the world–as soft on terrorism. How handy for them, then, they they found someone who had been involved in crafting policy at Gitmo whom they could present, instead, as someone with no more interest than avenging the Cole attack? And how handy that that dead-ender judge made al-Nashiri’s prosecution the contentious issue.

I expect we haven’t heard the last of Commander Lippold.

53 replies
  1. al75 says:

    EW, as usual, you nail it. It seems clear that we’re seeing part of a coordinated “rollout” of opposition to Obama’s policies – in some cases nearing direct insubordination on the part of “insurgent” Bush loyalists, as in the case of the al Nasiri prosecution.

    who is coordinating the rollout? Dick? Karl? Who pays for the phone calls? Who’s the bagman?

  2. Mary says:

    This kind of pressure has been being orchestrated since Obama won. Suddenly they were wanting to have victims family members at GITMO after years of hiding everything away. It’s not as if a civilian trial with death penalty on the table is intrinsically less justice for the victims families – it’s just that the rules are less rigged to keep the responsiblity of others, and the revelations of criminal handling of detainees, secret or manipulated.

    But Lippold doens’t need to worry that much. Obama “notsodead-ender” Panetta has just clarified his statements from yesterday.


    There will absolutely, as a matter of Obama administration policy, be no prosecutions for torturers.

    The Obama administration will not prosecute CIA officers who participated in harsh interrogations that critics say crossed the line into torture, CIA Director-nominee Leon Panetta said Friday.

    Asked by The Associated Press if that was official policy, Panetta said, “That is the case.”

    That’s just evil. Horrifically evil.

    • brendanx says:

      Panetta didn’t merely say there would be no charges, he abased himself, apologizing for claiming we ever handed people over to be tortured in the first place. And from the same story, this quote on our new standard for evidence:

      Sen. Kit Bond, R-Mo., chastised Panetta for careless words. “You cannot be making statements or making judgments based on rumors and news stories,” he said.


    • LabDancer says:

      To be precise: Panetta is confirming the accuracy of his testimony at his confirmation hearing that his understanding is that the Obama administration will not actively pursue the prosecution of CIA officials who participated in torture that was ordered by the Bush administration where such orders were materially supported by an OLC opinion.

      It could be worse: saying “We don’t torture” when you know we torture because you ordered it be done is worse.

      Also: governments–even well-run governments–are notoriously inept at maintaining bright lines in the face of stronger external forces; and there’s lots of external forces that are working against this & more to come.

      Meanwhile: fixing the economy gets priority.

      • macaquerman says:

        It doesn’t seem to be just to prosecute the people carrying out the order before going after the people who gave the order and offered assurance that it was lawful.

          • macaquerman says:

            I often have the same problem with my comments.
            I was suggesting that the prosecution of CIA employees not precede the prosecution of the administration figures who ordered the torture.

            • emptywheel says:

              The Obama administration has repeatedly said it will not prosecute people who were operating with the assurances that what they were doing was legal.

              It has also, AFAIK, never said it would not prosecute people who gave those assurances. It hasn’t said it would, but it hasn’t said it wouldn’t.

              I think the focus among Obama’s people is holding those assurance givers accountable in some way. Do I think it’ll be sufficient? Nope. But would I prefer they go after Cheney and Yoo than after the nameless CIA guy? Yup.

        • Jesterfox says:

          You have to go after the ones lower on the command structure to get what you need to go after the higher-ups.

  3. perris says:

    “I don’t think we should close Guantanamo Bay until we have some process in place, until we understand the impact of closing it, until there is a much more robust review by the international community on how to deal with these detainees,” he said. “To bring them to the U.S. and give them the same constitutional rights that we as American citizens have earned is an affront to the decency of these families and should absolutely not be allowed.”

    you’re gonna really appreciate this link marcy

    there you will find the real reason cheney would not allow bush to close gitmo and why he’s lobbying so hard to keep obama from doing it

    • emptywheel says:

      You mean KBR’s involvement? I’ve been asking why it is that KBC can build a jail that doesn’t electrocute detainees, but cannot do so for US military.

      Not that either is excusable—

      • perris says:

        yup, kbr

        in other words, cheney and company makes millions on gitmo

        and they don’t want to close gitmo…go figure

  4. Mary says:

    A non-KBR reason for not wanting the detainees brought to the US would have had to do with the war crimes act issues that many present. Now that Obama is getting pretty clear on his signals that the US is a safe haven for war criminals, as long as they are “our” war criminals, I think some of the grumbling and muttering will die down, but they are still going to be worried about what happens to the Errachidi types of detainees that might get transferred here – men who in the “real” United States of America would have court access for torture victims act claims. The kinds of claims made by Khalid el-Masri and Maher Arar, to no avail in one case to date to no avail in the other.

    We’ve seen that Obama’s reaction to British courts with clear torture evidence is to threaten them into keeping quiet – like a gang member threatening a witness. I’m guessing that the civilian and military torturers will continue to have Obama block their access to redress in the courts here (a big concern of Lindsey Graham’s in the Alito hearings if you’ll recall).

    Oh – and the even better news is that Panetta also clarified another point.

    As long as we get the kind of assurances we received from Syria before we handed over Arar, or from Morocco before their genital slicing activities, we are still good to go with grabbing people in one country – not to render them to the courts here in the US, but to hand them off for “interrogation” in other countries.

    The United States will continue to hand foreign detainees over to other countries for questioning, but only with assurances they will not be tortured, Leon Panetta told a Senate committee considering his confirmation as CIA director.

    Panetta said, however, he believes the greatest weapon the United States has against terrorists is its moral authority and commitment to the rule of law.

    “The sense that we were willing to set that aside did damage our security,” Panetta said

    Um, it’s not a “sense’ that we “were” willing to set it aside. It’s the reality that Obama is currently commiting to insuring that the rule of law will not be brought to bear on torturers.

    It’s just filthy.

    But hey, can’t vote for a Republican, right?

    • skdadl says:

      We’ve seen that Obama’s reaction to British courts with clear torture evidence is to threaten them into keeping quiet – like a gang member threatening a witness.

      Mary, with respect as always, I’m not sure that that’s what we’ve been watching this week, at least from the perspective of the high court judges in London. About Obama, I dunno — we’ll see. But I’m pretty sure that those two judges wrote the way they did — superficially about U.S. policy — with closer targets in mind: the Foreign Office for sure, and then maybe even Brown and Blair. They meant to trap Miliband, which they seem to have succeeded in doing.

      • phred says:

        Curiouser and curiouser — thanks for the link skdadl, but I wouldn’t absolve Obama on this matter yet. The 2nd to last paragraph from your link reads:

        Yesterday the Obama administration made it clear that it maintained the Bush stance that preservation of intelligence material remained paramount.

        I suspect a lot of people on both sides on the pond have a vested interest in keeping their skeletons tightly sealed within their closets.

        • skdadl says:

          I suspect a lot of people on both sides on the pond have a vested interest in keeping their skeletons tightly sealed within their closets.

          Oh, yes. Lotta closets in Canada, too.

  5. skdadl says:

    Amazing post, EW. Even before I read you, I was talking back at Cmdr Lippold through that video — quite the talky guy himself, and obviously ideologically motivated. And then I read you. Man, how do we stop the liars when the lies are right there in plain view?

  6. Arbusto says:

    Once again DC politics makes no sense. Janet Reno didn’t seem the type to pussy foot around while being the AG during the bombing of the Federal Building in Oklahoma City or the World Trade Center bombing and especially after accepting heat for the Branch Davidian debacle in Texas. I think she’d have wanted to get to the bottom of the Cole bombings. Lippold on the other hand, seems culpable for dereliction of duty in the death of so many of his crew ( but no courts martial?) and as evidenced by his failing to get his Captaincy. And yet ends his career as an aide-de-camp or some such for Admiral Mullens. Curiouser and curiouser.

    • emptywheel says:

      Badawi, who is the guy the Yemenis keep arresting and then letting go, appears to be one of Yemen’s intell ops. SO it’s possible we were getting intell through these same people, which would explain both the reluctance of the Yemenis to really prosecute and our own seeming satisfaction with that result. Plus, there seems to have been a lot of pressure to get and keep the Navy in Yemen, and not to piss Yemen off by doing things like shooting off flares when boats approached too closely to ships.

      So I think Lippold was doing as he was ordered, was protected by Richard Danzig (yup–Lippold has a protector in Obama’s inner circle) during the investigations, and was quickly dumped into the much involved with Gitmo.

  7. perris says:

    from what I remember, clinton didn’t want to start an aggression or war for bush and if I’m not mistaken actually asked bush how it should be handled

    I don’t have a link but that’s what I remmeber as far as the cole

  8. phred says:

    Mary — what’s your take on the kerfuffle in Britain? From what I can tell (from the Guardian and McClatchy) the Brits are really pissed about our blackmailing their courts. Do you think that approach might seriously blow up in Obama’s face? Europeans seem much more inclined to prosecute war crimes than we are… I wonder if public blowback in Britain ultimately leads to the release of the oh-so-secret-info — and if so, if that leads to more serious repercussions for all involved?

  9. Mary says:

    11 – I’ve been watching the court’s statments and I would agree that they framed their opinion so as not to provide any wiggle room – Miliband had to say there was a significant risk that the UK would lose intelligence sharing that would hurt its national security in order to keep the lid on, and he did.

    And he pretty much still is.

    Miliband told MPs in an emergency statement that the US had not after all made any “threat” – a term the judges used in their ruling in light of evidence from Miliband and his advisers. Instead, he said, the US had warned Britain that a high court order to disclose the torture evidence would be “likely to result in serious damage to US national security and could harm existing intelligence information-sharing between our two governments“.

    What he is whiffling over is the use of the word threat, but what he is sticking to is the fact that he was given a “warning” that if the court released info, the US was saying it would “harm” info sharing between the two govs. I think you can dress that in pink or in blue, but the baby still is what it is – the US didn’t use the word threat, but the US did warn that it would change its info sharing. And then Obama’s WH issued a thank you for the decision not to release torture info.

    It was made pretty clear back in Nov or so when Miliband was first making the argument that the US would cease info sharing that the reason the court was putting things off was to see if that was really going to continue to be the US position – that this info had to be kept secret or it would take some kind of retaliatory action. IMO, if the US is ‘warning’ the UK that we will have to ‘change’ info sharing, there’s not much of a dime’s edge difference between that and ‘threatening’ to ‘withhold’ info, it’s just a threat put into diplomatic language. But that is jmo, and it’s why I thought back when it originally happened that someone in Congress would be making some inquiries as to what was being said to the UK, and by whom, and with what authorization. It never happened. I still think it should happen.

    I also think that if the US hadn’t made such a warning, the Obama embassy spokesperson, instead of saying *we don’t threaten our allies* would have been able to allay concerns much more directly by saying, *we did not entertain the idea of revising how we share information* or something a bit more specific. Also, Miliband’s statements to the court have been being reported pretty contemporaneously and openly – wouldn’t have been that hard to issue a statement prior to the court’s decision making it clear that the US was not proposing to withdraw from info sharing arrangements.

    Maybe it is just that I have never gotten one vibe that Obama is going to do anything about the torturers and fisa felons, and my bias is showing. But it feels a lot like the conversations I used to have about whether or not Bush really would be going to war in Iraq if he didn’t have firm evidence of Hussein’s ties to al Qaeda and 9/11 etc. I never had faith then in the “you’ll see, he knows what he’s doing” either and it’s a personal deja vu feeling for me. Doesn’t mean I’m right or wrong, but I sure don’t see a lot of independent support for the proposition that Obama is going to do the right thing, and looking through my personal prism, it seems like there is a LOT lining up that he is not going to do the right thing.

    But yeah, the High Court is backing Miliband into a corner and giving the oppo pary something to sink their teeth into as they pushback. I am waiting to hear Inhofe and Cheney explain how razoring a penis isn’t torture. Maybe they’ll even give us a Hitchens moment to prove it.

  10. Mary says:

    14 – it was really disheartening, wasn’t it? I really think in the end I end up hating the Dems worse than the Republicans on this. Backstabbing is hard to pretty up.

    12 – Keep in mind that all this is going in the context of the Mohamed et al v. Jeppesen [a Boeing subsidiary – remember Boeing, where Luttig landed after authorizing the Padilla detention, which was based on statements from Zubaydah (tortured) and Mohamed (tortured)]


    One such case, dealing with the gruesome realities of the CIA’s so-called “extraordinary rendition” program, is scheduled for oral argument before a federal appeals court in early February. The position the Obama administration takes in this case may be the first major test of its new policies on transparency in government.

    Mohamed v. Jeppesen Dataplan, Inc. involves five victims of CIA rendition, or “torture by proxy,” as it’s also known. Abducted abroad, the men were flown by the CIA to cooperating countries whose agents interrogated them under torture. Because federal officials are usually immune from lawsuits, the men later sued the private aviation data company, Jeppesen — a subsidiary of Boeing, one of the largest federal defense contractors — that knowingly provided the flight plans and other assistance necessary for the CIA to carry out its clandestine operations.

    That’s the same Mohamed as Binyam Mohamed, at issue in the UK proceeding.

    Actually, the High Court pretty much decided to create this tempest (and good for them). What happened is that the defense counsel for Mohamed were hitting stonewalls and dead ends in their requests for info on his torture from the US, so they decided to file in the UK, where he had been a legal resident, for any info the UK gov might have. They really ONLY asked that they be given access, in a classified setting, so that they would have the info to use for defense purposes in the classified setting of the trials. And so the court there barred the media from access to the first few hearings (pretty much sealing the record).

    After a tremendous amount of back and forth, and the UK court bending over backwards to let the US on its own make the info available to the defense lawyers (it would not) the court finally ordered Miliband to give the defense lawyers the info (all as classified still). In those settings, Miliband was originally making the argument that they couldn’t even give the info to the lawyers bc the US was threatening to withdraw security cooperation.

    Instead of shutting the court up, the court itself upped the ante. Sua sponte the court “invited” the media, which had been barred, to ask the court to reconsider it’s earlier rulings sealing the info. That was a great move IMO and I agree with skadl that they were trying to get Miliband to paint himself in the corner – but also that they were playing chicken with the US a bit as well. Bc if people hadn’t been such jackasses about letting Mohamed’s lawyers have the info, there never would have been all the disclosure to the court there and the court deciding on its own that the info had such impact that it should be in the PUBLIC realm.

    So the court brought this to the point it is at now and Miliband et al have to either say yes, call it a threat or a warning or a friendly reminder or a diplomatic nudge, but the US is threatening to take retaliatory action that might make the UK less safe or Nah, I got it wrong, I flunked Yankeespeak at Haverstock Comprehensive, really the US is ok with us releasing the info to the media (Obama will send us a thank you for that too, that guy just LOVES using his new stationary)

    And that’s going to make the US and it’s British pool boys pay some price, if not the ultimate one, eeven if they latch onto the “nah” option.

    We’ll see – I’m not all that objective on this and I don’t pretend to be, so you may want to take my spec with a grain of salt.

    • LabDancer says:

      Gosh- don’t suppose there are more Dead End Kids than just in the al Haramain case, do you?

      If you go to the Brit news websites, you can readily link to and download the letters the Bush admin wrote the UK govt — but for some reason all that’s available on the alleged Obama endorsement of those is Millebrand’s [sort of] word for it. The only quotables are the usual over-upholstered generalities. Seems a bit odd. Might help to know a bit more about the current political climate in Britville.

    • phred says:

      Thanks for the background Mary. Mainly what I was getting at, was whether public (and political) pressure might build in the UK that will blow the lid off this. I suspect your average Brit won’t be too keen to find out that their BFFs on this side of the Atlantic are blackmailing them. And I can’t help hoping that this puts some serious pressure on the PM and Parliament to assert their sovereignty — or at least fret over their own exposure to the ICC (I assume that unlike us, the UK is a signatory to the ICC, is that right?). The UK is a bit more sensitive to public pressure than we are given their parliamentary system (but I may be wrong about that), so I can’t help hoping that unhappiness over their ill-use at our hands will force the issue.

    • bmaz says:

      Mohamed et al v. Jeppesen – I believe there are arguments scheduled for Monday and the Obama/Holder DOJ is going to have to fish or cut bait on the state secrets assertion. Should provide a decent read on them I would think. And, no, I do not hold out much hope for greatness out of them.

    • skdadl says:

      Mary, I’m not disagreeing entirely. But to me, after hearing my own government utter the same two excuses time after time for years — “national security” and “damage to international relations” (Arar, Khadr, and at least six other cases we know of [so there must be more]) — all Miliband did in the first place was to utter boilerplate. Nobody in the U.S. needs to threaten the UK or Canada or any number of other countries for all their foreign ministers to know automatically how to sing from the same songbook right away.

      What happened this week is that Miliband got caught by a couple of judges who’ve obviously been fed up since last year and have decided to challenge the boilerplate. Miliband must be spluttering in amazement tonight, thinking to himself, “But everyone else does it.” And that would be true: everyone else does, or has, until now.

      Things are a bit different here. Our government has produced the identical boilerplate repeatedly, even before the Supreme Court, but for reasons I can’t explain because I am NAL, our Supremes have just rejected it, without rhetorical flourishes. They ruled mostly in favour of Khadr’s attorneys, eg, on the release of government documents about his interrogations at GTMO, and the judge charged with releasing those docs has been pretty liberal in his decisions (especially interesting given that he was in an earlier life the guy who wrote our anti-terrorism act).

      The British courts seem to be much more under the thumb of the executive. Perhaps someone else understands that structure better than I do.

  11. JohnLopresti says:

    A comparative politics study of the story of the peninsula emirates, and Yemen, possibly might illuminate some of the early critiques of how the sabotage incident developed. During the conflict which preceded the current tumult in Iraq, a substantial measure of history of Kuwait appeared in the news, often with frequent restatements and qualifications of initial investigative reports and commentary by historians. I think some of the known polarizations evident in the Kuwait tale in the early 1990s in US press provided a glipse into the sorts of balanced considerations employed in selection recently of alArabiya for the post inauguration announcement from the US president, though I have viewed only clips of the transcript. Which is to say, the US view of the operational missteps likely rests upon a broader knowledgebase more closely familiar with Yemen’s defined character among nations of the region.

  12. JohnLopresti says:

    What’s to prevent a future president from recruiting an attorney who wrote opinions in some of the rendition countries to emigrate to the US and work in OLC to get back into state sponsored torture. I hope the former faculty member from Bloomington helps develop policy guidelines to bar that from occurring. It is difficult to imagine an AG and congress willing to attempt a bluster thru that divide. It vitiates US constitutional constructs in precisely the way alQ’s founders designed. Typical asymmetric guerillaism, let the foe destroy its own institutions once nudged.

  13. Mary says:

    18 – “To be precise: Panetta is confirming the accuracy of his testimony at his confirmation hearing that his understanding is that the Obama administration will not actively pursue the prosecution of CIA officials who participated in torture that was ordered by the Bush administration where such orders were materially supported by an OLC opinion.”

    That’s not my understanding. In his first round, he held to the Nuremberg defense touchstone (which I personally think is absolutely abominable – you can’t say the US doesn’t torture while making it a haven for torturers), that they would not pursue investigations of or prosecutions against people who acted within the strict boundaries of an OLC opinion authorization, but he specifically held out the possiblity that people who might have exeeded those authorizations might be subject to prosecution.

    It is my understanding that this is what he has now backtracked from that and has now said there will not be interrogator torture prosecutions and investigations, period. He pretty much abased himself for ever saying differently. And he clarified that this was not just his opinion or take away, but that it was the official administration position.

    Given that most of the OLC opinions were probably never actually tendered to or read by the torturers and the ones that have eeked out have nothing much in the nature of a facts section in the memos, I think they would have had trouble getting the interrogators the cover they want to give with a requirement of tying to the the OLC opinions, even as bad as they were. I guess they want to make sure that torture to the point of death guys and the genital razoring accessories were covered.

    Also on his first round, he said there would be no more renditions to hand off people to third party countries for interrogations, only renditions to bring suspects into the criminal court system here. It is my understanding that he has now, after similar abasement, backtracked that as well and has said there will be renditions to third party countries for interrogations and heck, we’ll just get the same sign offs that we got for Arar and al-Libi.

    It could be worse: saying “We don’t torture” when you know we torture because you ordered it be done is worse.

    You’ve got a point, but it’s a hard one for me to buy. I think it is even more evil to run a campaign promising accountability and transparency and that the US will abide by the rule of law, then stab every person who voted for you based on those promises in the back while you sip tea with torturers. Despite his prattling, no one who was paying attention ever really doubted that Bush ordered torture. I think a lot of people did believe that Obama was going to reinstitute the rule of law and it’s a pretty vile thing to do, to manipulate those expectations then use the power of your office to cover up for torture.

    Notice how ez btw, it is for his proxies to say “we will not be investigating or charging torturers even though we admit what they did was torture” and contrast it with his and Holder’s own whiffle waffle about no one being above the law.

    What a lie.

    And Holder’s crapola about not being able to find “mens rea” if there were OLC opinions that said it’s not beating a person if you beat an illegal enemy insurgent, or similar garbage, is just that, crapola. There are a gazillion ways of getting to mens rea, from the deliberate fear based decision to off shore the detentions, to the ongoing misrepresentations to the American people about “humane” treatment and the misreps to the Sup Ct and hiding the opinions and the way el-Masri was dumped out for his “release” etc.

    21 – I think the additional support is the statement of thanks for continuing the cover up that Obama’s WH issued after the opinion.

    20/25/27 – I do and don’t agree. Obama made a huge point of saying over and over that no one was above the law when he was asked about torture, giving people the bubble of accountability hope. He mentioned that accountability word a few times too. I think you do have to go after architects of the plan, but usually you do that by going after smaller fish first, not after. And more than even that, I have to say that outside of a miltiary setting, in the CIA, I just don’t agree with the concept of “they were just following orders and they must have actually believed it was legal” to walk away from going after the actual torturers as well as the torture planners.

    Just why did the torturers demand out of country ‘black sites’? Bc they were all so sure that disappearing people into abuse was “legal?”

    I think soldiers were in a different situation (they can be shot for not following orders) but I don’t buy the argument that you should love the torturer and just hate the guy who ordered the torture. Bc there is a duty to say no, even for soldiers who can be shot. One of the people involved in the torture programs, according to Mayer’s book, even got a reprimand in the CIA that she needed to quit treating the torture sessions like they were for her own personal entertainment. And here’s the other piece – these guys who were doing the torture and abuse KNEW that they were getting “mistakes” And they knew that even the OLC opinions didn’t cover abusing the snot out of someone who wasn’t an “illegal enemy combatant”

    And they’ve been not only unrepentant, the torturers have been actively invovled in making sales pitch after sales pitch that torture is patriotic. Executive orders to “go forth and torture no more” notwithstanding, the blanket amnesty from prosecution that Obama is holding out basically is a de facto recognition that if the President order it, it is legal. And that is horrible on far too many levels. But if that is what hs is doing, he needs to be forced to say it over and over, through as many proxies and as directly as possible, bc the world needs to know what the US is under Obama. And it’s not exactly a beacon of justice.

    • macaquerman says:

      I certainly didn’t say I would hold harmless people who abused prisoners.
      I certainly will join you in feeling betrayed by Obama is nothing changes and nothing is done.
      I can’t agree with you that it’s desirable to follow the usual legal strategy of using the small fry to try for the larger fish.
      That’s not a tactic to be employed when the object is to restore justice.

  14. Mary says:

    28/33 – I think it would be hard to get Yoo for giving the actual opinions, bc there has probably been too much evidence that was either destroyed or never reduced to recordation of some kind.

    OTOH, I think there are plenty of other avenues open if we had a different President and different AG. There are perhaps claims of participation in conspiracy to torture that might be available, but those would also be tougher. OTOH, I think there are probably all kinds of viable obstruction claims (and some ethics claims unrelated to just writing crap opinions) that could and should be on the plate for Yoo and with investigations you just don’t know.

    For example, I think that by the time of the Padilla/Hamdan arguments, where Clement was arguing that the US does not torture, Yoo was likely aware of at least the hypothermia death if not more. Waterboarding, disappeared children, sodomizing with objects, etc. – and yet he never came forward with that info or corrected the representations to the tribunals. OVer and over, courts here in the states were issuing orders of preservation and production of evidence, and Yoo had to have known about the generalities of the orders if not the specifics and he never took actions to make sure evidence was preserved and more than that, he allowed courts to be actively misled by the Justice dept as to what evidence was being tendered and preserved. There are plenty of items like that which all can add up separate and apart from just the argument that he knew the law was contrary to his memos but issued them anyway simple to provide a President with a tool to violate the law.


    • bmaz says:

      Yeah, when i said it was theoretically possible, it was conspiracy to torture and related crimes I had in mind. Pretty tough to envision Obama/Holder doing it, and even harder to envision them doing it successfully. As much as I hate the suckers, they would have defenses a good lawyer could argue.

  15. Mary says:

    38 – I can’t agree with you that it’s desirable to follow the usual legal strategy of using the small fry to try for the larger fish.

    I agree that justice should be the motivator, but the reason that you often have to go first for the smaller fish (although it’s hard for me to frame a torturer as a small fish) is that often that is the only way to get evidence against the larger fish. So if someone tortured a young detainee to death, and you go after them for the murder, the only way to establish that they were given the order to do what they did might be to get the evidence from them and they may not give that evidence, of a higer up ordering their torture, unless they are facing charges themselves.

    But I think it’s moot here anyway. There just don’t seem to be any vibes from any part of the Obama camp that they give a damn about torturers or the massive fisa felons.

    No one is above the law in the Obama administration (per Obama), but it sounds like being low enough that you are beneath it gets you to the same ultimate destination.

    • macaquerman says:

      I think I understand the reason for woking up the chain perfectly. In almost any conspiracy, it’s the only way to go. I also think that what it produces is very uneven. Some get convicted and some more get immunized. At least one of the top guys gets away.
      Shouldn’t there be enough documents extant in this instance to allow a different approach?

  16. Mary says:

    36 – I think we both agree that the court really boxed Miliband, esp since the original relief being requested was only access by the lawyers.

    You might be interested in this too –


    It’s the text of a British Embassy email that went out in response to the case.

    • skdadl says:

      Thanks for that link, but what does it mean that these guys just keep asserting and affirming and condemning? That plus (how much does a cup of coffee cost where you are?) will get you a cup of coffee, I figure.

      There simply is no content to what they say. Simon Jenkins has a great column in last night’s Guardian (takes a short search; has dropped off main page) in which he asks at one point whether anyone seriously believes that the CIA would refuse to warn London of an imminent terrorist attack. Simon Jenkins doesn’t believe that; I don’t believe it; and above all I don’t believe that David Miliband believes it. He just plays that part when someone forces him to turn up in court.

  17. Mary says:

    43 – there should be, but there’s been a lot of time for destruction and there were a lot of people involved who knew, olc opinions notwithstanding, how criminal all these acts were and didn’t want records. All you hear is how obsessed they were with criminal liability (amazing, huh, what with everyone reasonably believing they were just plugging away, doing God’s work)

    If you had good investigators and good resources and a few truthful people, it might be that they could go about things very differently, I don’t know. I don’t do criminal litigaton and don’t have a strong feel for it – bmaz and lhp know more on those fronts.

    Even more OT, but I never knew Luskin was such a Fitzgerald fan


    Moreover, Fitzgerald has a sterling reputation. “He’s absolutely the best,” says Robert Luskin, a defense lawyer with Patton Boggs

  18. JohnLopresti says:

    I was thinking of the Libby testimonials list, 200 in length, bluechip, sterling people vouching for character; and wondering who might survey each of those noble people what they think of torture as a structured policy part of US government.

      • JohnLopresti says:

        I would start with Jenny Mayfield, if she wants to reply. The bona fides patrons on that list included a lot of people who live a principled life, which is what judge ReggieWalton respects. We can let CCR take the vanguard, and the other approaches, yet, just saying.

  19. RAMA says:

    Seems to me the commander is validating his removal from command by his actions. It’s unfortunate that his idiocy was not detected sooner; some of our kids might still be alive if he hadn’t allowed his ship to be attacked and nearly sunk while at anchor in an unfriendly part of the world.

  20. timbo says:

    How precisely is America’s actual moral standing, diplomatically, to improve if these folks aren’t brought to justice…and by America?

    If America fails to do the house cleaning required, it will be up to other nations, other societies, that are more ethical and decent, to bring these torturers and thugs to justice. So, firstly, I encourage America’s new government to begin enforcing the laws that existed when these crimes were committed, crimes against American law…and crimes against America’s moral promise. For loathsomeness is not an American ethical goal…or is it?

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