The Scope of the (Hypothetical) Torture Investigation

It was just last night that Newsweek floated the notion of a torture investigation, and we’re already into a hot debate about the scope of any (thus far still hypothetical) investigation. Here are the posts you should read:

  • Tim F @BalloonJuice arguing that an investigation of just the torturers who exceeded guidelines would be worse than no investigation
  • [email protected] arguing that focusing on the CIA–rather than the decision-makers–would be wrong
  • [email protected] cataloging the different stories about scope–and arguing that if the investigation focuses on CIA it’ll be Abu Ghraib redux

Glenn and Spencer both point to Scott Horton–reporting that there is unlikely to be such a limit on scope–in an article I’ll look at in some detail below.

My take–one derived from some weeds–is that if Holder approves an investigation, it’ll be unlikely to just take on low-level CIA interrogators.

First, consider who we’re talking about. We’re not, actually, talking about low level CIA interrogators. We’re talking about contractors. James Mitchell, to be exact. And if James Mitchell is not the psychologist/interrogator who acknowledged he had exceeded the limits set by John Yoo’s Bybee Memo, but justified it by saying he had exceeded those limits (by using way more water, for longer time, and pressing on the detainee’s gut) because those things make the simulated drowning technique "for real–and … more poignant and convincing," then it’s almost certainly someone who works for James Mitchell and probably used to work for the DOD entity that administers SERE.

I, frankly, have no problem with prosecuting Mr. Poignant the sadist torturer and, given his acknowledgment that he exceeded Yoo’s guidelines, that’s probably where an investigation would start.

Now, as I said, Mr. Poignant is either James Mitchell or someone associated with him–the "psychologist/interrogator" strongly suggests this person is a contractor, not a CIA employee.

That means that going after Mr. Poignant gets you, in either one step or two, to the contractors who worked from the start to profit off torture.

And that gets you, almost immediately, to the process that the torture architects used to authorize their torture. That’s because there is a paper trail showing that the torture architects knew and intended the torture to exceed even Yoo’s memo. This is a document that both Jim Haynes and John Rizzo had and–between the two of them–gave to John Yoo during the drafting process for the Bybee Memo as the basis for his description of waterboarding.

JPRA’s description of the waterboarding technique provided in that first attachment was inconsistent in key respects from the U.S. Navy SERE school’s description of waterboarding. According to the Navy SERE school’s operating instructions, for example, while administering the technique, the Navy limited the amount of water poured on a student’s face to two pints. However, the JPRA attachment said that "up to 1.5 gallons of water" may be poured onto a "subject’s face." While the Navy’s operating instructions dictated that "[n]o effort will be made to direct the stream of water into the student’s nostrils or mouth," the description provided by JPRA contained no such limitation for subjects ofthe technique. While the Navy limited the use ofthe cloth on a student’s face to twenty seconds, the JPRA’s description said only that the cloth should remain in place for a "short period of time." And while the Navy restricted anyone from placing pressure on the chest or stomach during the administration of this technique, JPRA’s description included no such limitation for subjects of the technique.

So if I were Mr. Poignant being threatened with prosecution for my efforts to make simulated drowning more realistic, I would point to the description JPRA submitted of waterboarding, to support a claim that I was doing precisely what that document described and that that was what Yoo and Haynes and Rizzo and Addington knew they were talking about when they got waterboarding approved in the first place. 

In other words, if you go after Mr. Poignant, he will quickly be faced with the opportunity to burn the torture architects to protect himself. (And hell, even if he’s a Scooter Libby type, this stuff is all out there anyway.)

And there is some indication that Holder is very well aware of this tidbit. Scott Horton describes Holder’s decision-making process this way.

Holder’s path to a decision was described as prolonged and surprising. Holder began his review mindful of the clear preference of President Obama’s two key political advisers—David Axelrod and Rahm Emanuel—that there be no investigation. Axelrod and Emanuel are described as uninterested in either the legal or policy merits of the issue of a criminal investigation. Their concerns turn entirely on their political analysis. They have advised Obama and other senior figures in the administration that the torture issue is a “distraction,” and that any attention on it would detract from Obama’s ability to push through his agenda—especially health-care reform.  Holder initially appeared prepared to satisfy their wishes. 

But, then, Holder decided to take a close, personal look at the issues, and his perspective began to change. Holder is said to have been closely engaged with three sets of documents—a group of memoranda from the Bush-era Office of Legal Counsel, since repudiated by the Justice Department; the report of the Office of Professional Responsibility on these memoranda, which has been on his desk, awaiting review and release for months; and the report of the CIA’s inspector general reviewing in great detail the actual techniques used, guidance given by the Justice Department, and results or lack of results obtained. 

Holder released the first set of memoranda and his Justice Department publicly suggested that it would release both the related report and the CIA inspector general’s report—often viewed as the Rosetta Stone of the torture controversy. As he read through the latter two documents, my sources said, Holder came to realize the focal and instrumental role that Department of Justice lawyers had played in constructing the torture regime and in pushing it through when career lawyers raised objection. He also took note of how the entire process was orchestrated from within the Bush White House—so that more-senior lawyers in Justice, sometimes even the attorney general, did not know what was being done. And he noted the fact that the United Nations Convention Against Torture, to which the United States is a party, requires that a criminal inquiry be undertaken whenever credible allegations of torture are presented. [my emphasis]

Whereas Klaidman had emphasized the importance of the CIA IG Report in inclining Holder to appoint a prosecutor, Horton’s sources emphasize two more documents: The OLC memos, and the OPR Report. Which show–according to Horton–precisely what I just showed, the OPR Report undoubtedly in a lot more detail. 

Also note the suggestion that Addington and friends went around John Ashcroft’s back–just as I showed they did with the illegal surveillance program (there are more parallels that I’ll hit in a post soon)–to work directly with Yoo to get their torture program approved.

Now all this doesn’t mean that Dick Cheney is going to jail. But it does mean that Holder is seeing precisely what is already visible, barely, from the already public documents. There’s no way you go after Mr. Poignant without also going after the lawyers who knew that Yoo’s memo was just fancy window dressing for what they knew and intended to be torture. 

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  1. fatster says:

    Just one more brilliant article, EW, in a breathtaking series of them. This makes me feel like we’re on the brink of getting somewhere–at long, long last. Unfortunately, those who have much to lose if this continues, are no doubt busily at work right now trying to prevent it.

  2. bmaz says:

    Well, there is a way to get Mr. Poignant and not go further, and that is to not actively try to go further. Same as Fitz did not go all out to get Cheney. Yes, I understand they are different situations and there may have been reasons for not going further than Libby, but the simple fact is that he could have pursued further and for tactical reasons, even if arguably valid, chose not to. At least as an analogy it is instructive. Secondly, I have never lost money on Obama and Holder doing less than they can or should do. History repeats itself.

  3. drfatman says:

    I am hopeful that if AG Holder has the courage to appoint a SP that he also has the courage not to put ‘blinders’ on the SP. I know this sounds simple-minded but one is brought up to believe that ‘one is to follow the evidence where it leads.’

    All of us that are paying even marginal attention are certain that the evidence originates and terminates in the office of VP Cheney. Now if it went down the hall to a more elliptical shaped working environment is yet to be determined.

  4. Loo Hoo. says:

    Hasn’t Cheney already said enough publicly to be a target? Dark side, dip in the water, enhanced techniques…he’s been bragging about it right out loud!

  5. fatster says:

    For those who want to know more about data mining, here’s this very interesting article of not too long ago.

    Big Brother Inc.

    by JAMES VERINI
    WEB EXCLUSIVE December 13, 2007

    “Knowing your business is big business for Aristotle Inc., whose Orwellian database of voter records has been an essential campaign tool for every president since Ronald Reagan. As the 2008 race heats up, the company’s shadowy founder, John Aristotle Phillips, unveils his most powerful personal-space invader yet.”

    Link.

  6. earlofhuntingdon says:

    Holder is being very Chinese. He’s reacting to what’s publicly available and assessing its “threat level” to him and his political superiors compared to the non-public information he also knows.

    I think the public is now aware enough of these machinations and that any decision to start investigating will help keep this on the boil and in the public eye. But Holder wouldn’t contemplate any investigation – how many has he started so far, given the abundant choices he’s had regarding Bush and DoJ excesses and illegality? – if he didn’t think he could control it. Why would he be so optimistic about that?

  7. emptywheel says:

    bmaz

    While I’ll probably regret this, I strongly disagree.

    The differences are:

    1) You don’t need Mr. Poignant as a witness–you needed Libby to get to Cheney
    2) You don’t have the legal ambiguity about insta-declassification
    3) You don’t have the question of indicting a sitting VP for something he did while in office

    I don’t think Fitz COULD go further with any certainty of getting a conviction (and I do think VPs shouldn’t be indicted unless you’re going to succeed). While I think any prosecutor would have to be really creative to get around challenges facing someone trying to indict lawyers, I think the actions of Rizzo and Haynes are fairly accessible and fairly known. That means we probably won’t get to Addington–he’s probably firewalled, and both Rizzo and Haynes are long-time associates of his–but we might well get to Rizzo and Haynes.

    • bmaz says:

      Well, I knew you were going to come kick my ass over using that as an analogy. But it was only an analogy and that (I do not necessarily disagree with what you said) is why I put all those caveats in there. And here you come kicking my ass anyway. Bully!!

      I think the lawyers, in most cases, are harder to get than people realize if you are talking about prosecutions and convictions. I actually think their superiors/puppetmasters are easier; but if you get at them, you can then, perhaps, double back on the lawyers. It is all so tenuous that it just seems unlikely, especially when there is no determination to go for the highest jugulars, that anything substantive will result.

  8. emptywheel says:

    Fair enough. Like I said, I think it’ll be easier to go after Rizzo and Haynes, and only if you get them–and only if one or both decides to flip–could you go higher. But there are a lot of emails out there and we may be able to corner Gonzales on his pre-OLC memo approvals, which would be more interesting because unlike RIzzo (CIA omerta) and Haynes (DAMN good at refusing to answer questions), I think Gonzales would eventually cave. And plus he’d be spending a HUGE amount of money defending himself, though I wonder whether it’s really him that’s been paying for Terwilliger.

    • bmaz says:

      Absolutely agreed on all those points. As you know, I have always felt Gonzo was the gateway to the whole enchilada. Exactly why I was apoplectic about impeaching the jerk before he could resign.

      • Rayne says:

        We’ll disagree on getting the lawyers; they have a professional obligation above and beyond merely doing their jobs they should have been fulfilling, and this tack should be taken to pick them apart to get at their masters.

        Gonzo should have been cracked already — including impeachment as John Dean suggested what seems like eons ago — but he and any other attorneys involved in this convoluted shell game should be pressed as to the rationale behind their inability to act ethically and adhere to professional codes of conduct, practicing evasion of law rather than compliance. There must be some precedent WRT to use of this approach in civil and crim lawsuits let alone crim investigations.

        • bmaz says:

          Gonzo is different than the other lawyers. Separate for AGAG tell me what crime other than conspiracy are you going to go after them on without also going after the higher ups in the Whit House on? I challenge you to answer that question because I have been toying with it for a while. I more than full y agree that they had a professional obligation to act differently; but mpeachment WAS the deal and there were no balls. There still are not.

          • Rayne says:

            My gut tells me that Gonzo’s weak spot has been his “misunderstanding” about his role as both White House Counsel and USAG. He was supposed to represent the legal needs of the White House, and he was supposed to represent the legal needs of the U.S. as USAG, no other entities.

            He appeared to represent someone else’s interests during his entire tenure, whether George Bush or that of Cheney and Co.

            I’ve not got a handle on the questions I’d ask if I had him in front of a grand jury, but I’d certainly pick apart his rationale for each of his decisions related to torture WRT his actual role versus the one he took.

            I’m also very curious about the goods somebody could have on him for the purposes of blackmail…perhaps he’s just plain stupid, but blackmail could make somebody act stupid, too.

            • Petrocelli says:

              Gonzo was tickled pink to be in the elite inner circle of power, which (he thought) would pave his future in Gold once he went along with the Kewl Kidz !

  9. TheraP says:

    I’ve been saying for some time (possibly not here) that one factor which may “force” Obama’s hand here will occur over and over at international gatherings. How frequently will he have to fend off other international leaders, whom he’d like to influence, complaining that the US needs to get its own house in order? How often, if Obama seeks to urge leaders to attend to civil rights, human rights, and so on will those same leaders chide him for an absence of doing the right thing with regard to torture and international law?

    Can it be just chance that this focus on a possible torture investigation is coming out right after the G-8? I doubt it!

    Unless and until Obama – through Holder – addresses the terrible abuses under the previous administration, his international strength and moral authority will be severely hampered and diminished.

    Seems to me this administration is going to have to face the music and The Rule of Law. And international pressure will not stop, will likely only increase.

    For these reasons, I believe any investigation will be wide-ranging – as indeed it should.

  10. solai says:

    Of course your reasoning is sound and I would like nothing better than to see a complete investigation into our torturing. The U.S. will never be respected again if we let this slide. However, reading tea leaves leads me to think Cheney isn’t worried. A few months ago Dick and Lizdick were all over the teevee trying to build public opinion against an investigation. Now they seem to have gone back into their caves (thankfully). If they re-emerge I might think an investigation is possible but right now, I think they think they’ve dodged that bullet.
    Methinks we’re being played.

  11. mafr says:

    wow, you are a hard worker!

    Amy Goodman who follows this very closely, a while ago reported that James Mitchell has closed his office.

    What about the guy, Miller is it? who took the Guantanamo procedures over to Abu Grhaib? Does he fit in here?

    However, in light of what has often been boasted about publicly, I will be surprised if this goes anywhere.

    • Palli says:

      Larry Miller is now the Dean of the School of Psychology at Wright State University in Dayton, Ohio! Aint’t academia great…

        • Palli says:

          Please see my correction at 105 written Monday morning
          BMAZ- thank you for your carefully written posts; reading here gives me hope and company

        • Palli says:

          I AM SO SORRY I can not post at night with my memory loss problem
          COL. LARRY C. JAMES IS THE DEAN AT WRIGHT STATE but his torture resume is right there next to Geoffrey Miller’s name

          Here is Wright State University’s Press Release of his appointment. Notice there is no mention of his book “Fixing Hell: An Army Psychologist Confronts Abu Ghraib,’’ (which begins with fictional premise).

          March 13, 2008
          Wright State University’s School of Professional Psychology Names New Dean
          Col. Larry C. James, Ph.D., has been named dean of Wright State University’s School of Professional Psychology effective August 1, 2008. He is replacing the current dean, John Rudisill, Ph.D., who retired at the end February after serving six years as dean.

          Currently, James is chair of the Department of Psychology at the Tripler Army Medical Center, in Honolulu, Hawaii, where he coordinates the activities of the psychology department. As the chief psychologist and senior mental health consultant at Tripler, he also coordinates the development of behavioral health services in primary care and is responsible for training and overseeing psychological services to the Army’s entire Pacific Rim operations. He is also Co-PI for a $850,000 Native Hawaiian Training Project grant.

          Board certified and a diplomate in clinical psychology and health psychology by the American Board of Professional Psychology, James focuses his research on integrating clinical psychology into primary care and medical settings.

          His commitment to training and recruiting minorities into the profession prompted the Association of Psychology Post-Doctoral and Internship Center to present him with an Award for Excellence in Diversity Training. He also received a presidential citation from the American Psychological Association for distinguished service to the field of military psychology and the global war on terrorism.

          “Dr. James brings his extensive experience as an administrator, teacher, researcher and clinical practitioner,” said WSU provost, Steven Angle. “His record shows a strong commitment to diversity training and the development of innovative diversity training models. As dean, he will provide solid leadership in carrying out the school’s commitment to training practicing clinical psychologists for diverse community settings.”

          Prior to serving as chair at Tripler, James was chair of the Department of Psychology at Walter Reed Army Medical Center. As the chief psychologist, he was responsible for credentialing, supervising, and setting standards for practice for over 100 psychologists in the North Atlantic Region.

          It was in this position that he was called upon to provide his expertise and leadership skills to the Pentagon’s September 11th emergency response team.

          James has co authored four books, his latest being Diversity and Human Interaction: the Tapestry of America and The Primary Care Consultant. He has been a contributing author to several scholarly works, including writing “Telehealth Applications to Expand Health Psychology Services in Primary Care” for the book The Primary Care Consultant: The Next Frontier for Psychologists in Hospitals and Clinics.

          He has authored over 100 scholarly works including peer reviewed papers, abstracts, posters and presentations at national conferences.

          Currently, James is president of the American Board of Health Psychology, and is a member of the Presidential Task Force on Military Services, the Presidential Task Force on Psychological Ethics and National Security and the Office of the Army Surgeon General Task Force on Interrogations.

          James is a Fellow of the American Psychological Association, the American Academy of Health Psychology and the American Academy of Clinical Psychology. He earned his Ph.D. in counseling psychology form the University of Iowa.

          I received good advice on this site about how to register my disapproval but my artist’s voice was for naught

          • afisher says:

            Wowzer: So this is where the Army puts the psychologists that need to be aout of the public eye, Hawaii….and now someone has hired this guy to be a dean….that is down right scary.
            Here we have a psychologist that was knee deep in the development and APA cover scam to hide their participation in development programs being in charge of an entire department.
            I can only hope that he isn’t actually teaching or pushing his agenda…as in the APA emails (available via ProPublica) that what happens when you are out among the “cowboys” is totally divorced from what you do in the comforts of your office.

    • Palli says:

      Apologies…Geoffrey Miller and it is the School of Professional Psychology, would you believe!

      • TheraP says:

        School of Professional Psychology means it is “freestanding” and not part of another institution. It is it’s “own” institution. In our field, that actually means a lessor degree of competence, rigor, and standing.

        Sorry if this point has already been made.

  12. NMvoiceofreason says:

    The answer is : D – none of the above.

    The answer is Bybee. He signed off on the memos, he’s tied into Abu Ghraib and the deaths of people who were tortured to death (violates even his imbecilic interpretation of torture). Bybee can testify to the acts of all the others, and the threat of the death penalty 18 USC § 2340A, 18 U.S.C. § 1111-1117 (felony murder rule) tends to focus the mind a little, if not quite as much as a “direct threat of death” (i.e. waterboarding – which he approved before the memo came out).

    • bmaz says:

      While I do not disagree a lick with what you say about Bybee, he is differently situated in that he has a lifetime dream job that hangs in the lurch. He will not chat until he thinks his liberty hangs in the balance; and with what I currently see, even at the most optimistic, it does not.

    • Rayne says:

      Would be really nice to have a relationship map which shows not only the compartmentalization of each of the players, but the questions necessary to break open each compartment…

      Trying to figure out how to do that.

        • Rayne says:

          Nuts, mapping’s going to be a bugger. Formatting the data is going to be a pain in the butt:

          A network diagram takes a table consisting of at least two text columns of data, with each row representing a single relationship between two items. Their contents is interpreted as the display label for the item. Please keep in mind that in general, the layout optimization process can be very time consuming for larger networks (more than a thousand vertices) especially when running in a browser. In most cases the applet will eventually compute a correct layout in a few minutes, however. Also, this technique is not very well suited for networks in which a lot of nodes have a large number of neighbors.

          An example data set suitable for the network diagram would be:
          Person Knows
          Frank Fernanda
          Jesse Frank
          Martin Jesse
          Jesse Matt
          Matt Fernanda

          In other words, I have to figure out what the key nodes are and there can only be two.

          I think I’m going to try key torture documents as one node and persons involved as the other, to see if this yields any pattern. Any other binary data selections you can see working here, let me know.

            • Rayne says:

              Well, apparently in that tiny sample model provided, Jesse gets around.

              Kind of like Wolverine.

              I figure we may see a pattern emerge showing which document was relied upon the most, possibly pointing to the person(s) best to flip, if I can map this out properly.

              Like in that goofy chart about X-men I just linked — you want to stem the rate of infection of social diseases, you go for the “slut.”

              Wolverine!!!

              • behindthefall says:

                Funny; nobody pines unrequitedly for Wolverine. Amenable kind of guy, it appears.

                (Sorry — that was completely O/T … Imagine that net with other names and documents.)

          • bobschacht says:

            There’s a whole branch of mathematics devoted to this. Do NOT get caught into a paradigm where you have to have a rectangular table of data. See Social Network Analysis for starters. But there’s a rich vein of work there.

            Think, for example, about terrorist networks….

            Bob in HI

            • Rayne says:

              Oh, I am NOT getting into the math. Hell no.

              There are enough tools out there to automate the network graphing once the data set has been generated.

              It’s the data set which is a pain in the butt. Really thought the tool I selected could do something other than binary, but I’ll try it with a first set and see what happens. I’ll start with the Torture Memos listed here at EW and see what we get.

              Have already been watching Valdis Krebs with his work on terror networks. Yikes. There are tools out there for journalists, too, which allow resources to be entered, after which links or connections not readily seen surface for further evaluation. But the cost of these resources is prohibitive (Krebs is a consultant, the software costs $$$.)

  13. NMvoiceofreason says:

    I was just stating the results from the Torture Timeline. Without your wonderful, brilliant work we would not have had anything. But when the legal sham justifications fail, the lights will come on big time and the roaches will be scurrying for cover. Count on it.

  14. NMvoiceofreason says:

    January 20, 2002: Bybee to Gonzales memo specifying that common article 3 of the Geneva Convention does not apply to “an armed conflict between a nation-state and a transnational terrorist organization.”

    July 26, 2002: Bybee tells CIA waterboarding is legal. CIA begins to waterboard Abu Zubaydah.

    August 1, 2002: “Bybee Memo” (written by John Yoo) describes torture as that which is equivalent to :the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

    All from Torture Timeline

    Besides, getting rid of the “we were just following orders” and “it was all found to be legal” excuses is right up there in terms of applying pressure on witnesses.

  15. orionATL says:

    why is holder considering this?

    maybe because he is a justice department professional. maybe he feels some loyalty/affection for the doj, similar to that strongly expressed by jim comey. maybe he feels he has an obligation to re-set the doj’s standards for professional conduct to “high”.

    one way to look at this unfolding event is that leaders of some federal agencies are on the verge of turning on the cheney administration to protect the reputations of their own agencies (without necessarily realizing they are doing so).

    holder AND panetta COULD be (but may never be allowed to be) the mild-mannered, trouble-avoiding leaders that start an avalanche of discovery (including in the legal sense) about how torture wended its way from the morally cramped and vicious minds of dick cheney and his gang to the heads and bodies of captured muslims.

    and torturer is only chapter 1.

    we are just now beginning to learn about cheney’s leadership assignation program.

    would obama dare keep all this under his hat? could he, even if he wanted to?
    and how much public pressure can emmanuel and obama’s rodent.

    • NMvoiceofreason says:

      cheney’s leadership assignation program

      is repugnant, but can never be prosecuted.

      One black program in CIA does targeting, another does planning. But each time them find and plan a target, they are called off. Nothing was every operational, never need to brief Congress.

      Another black program in DOD does the OP, directly under orders from OVP. Told CIA will brief, as they do all “covert action”. Black programs get canceled and absorbed by other black programs. Only someone breaking, from OVP office is going to link it all up. And Cheney will not rat himself out. That’s how closely it was held.

      Despite how sexy death squads are, let’s stay with something we can prosecute.

    • bmaz says:

      Or maybe because he is giving some happy talk to string out and ultimately diffuse the situation. There are a whole range of potential answers to your extremely salient question; I think we have inconclusive evidence to answer any of them.

  16. emptywheel says:

    NM

    Note the ”written by John Yoo.”

    Bybee is utterly culpable for lending his signature to John Yoo. But he is not known to have been at the meetings where this became a deliberate policy (Yoo was at at least some of htem). So you indict him for signing something egregious and then what? And on what basis do you prove bad faith?

    He likely knows more than that–but it’s probably NOT enough to get beyond presumption of good faith and NOT enough to bring others down. Which is a shame, because you get the sense he’d badly like to preserve his lifetime appointment, and would be willing to cooeprate to do so.

    • NMvoiceofreason says:

      Legally, the presumption of bad faith comes from the analysis:

      Specifically, Mr. Bybee, ignored over two centuries of historical and legal precedents,
      fell short of the “good faith” imperative, and advanced suspect legal analysis and
      prescriptions for detainee interrogation well outside of accepted and legal norms, thereby
      providing the false cover of claimed legality for those who then engaged in acts and
      policies that, in fact, violated the following laws, both in letter and spirit:
      1) The United Nations Convention Against Torture (UNCAT), Articles 1, 2, 3 and
      16 (ratified in October 1994)
      2) The Geneva Conventions, Article 3, (ratified in August 1955)
      3) The Eighth Amendment against “cruel and unusual punishment”
      4) The “Separation of Powers” constructs and imperatives of the U.S. Constitution
      5) The United States Criminal Code, Title 18, Prohibitions Against Torture (18 USC
      2340A) and War Crimes (18 USC 2441)
      As the “law of the land,” these legal protections and dictates are clear. Rather than
      authoring a “good faith” analysis of the applicable law, Mr. Bybee created contrary
      memoranda [1] since repudiated [2] from the Office of Legal Counsel, and colluded with a
      small cadre of Administration lawyers[3] to advance arguments that led directly to
      detainee abuses, and, evidence suggests, deaths at overseas U.S. military facilities.[4] In so
      doing, Mr. Bybee impeded the administration of justice and violated the U.S.
      Constitution, the Geneva Convention, the Convention against Torture, the US Criminal
      Code and several D.C. Rules of Professional Conduct. Mr. Bybee did not act in “good
      faith” but rather in a manner that was illegal, extremely prejudicial, grossly incompetent
      and clearly immoral.

      Bybee complaint by Velvet Revolution

      A second, stronger line comes from precedent:

      Waterboarding is a crime under US law. (18 USC 2340A). Waterboarding is a crime under international law see sGeneva Convention. International law, when codified in a treaty and approved by Congress, has the force of US law, see The Constitution’s Supremacy Clause. Waterboarding was a crime in WWII when the Japanese did it. The United States executed Japanese war criminals for waterboarding and other war crimes, see Application of YAMASHITA, 327 U.S. 1 (1946). It was a crime in 1983 when Sheriff James Parker (United States v. Parker et al, CR-H-83-66 (S.D. Tex., 1983), U.S. v. Lee, 744 F.2d 1124 (CA5 1984)) and deputies waterboarded people in their jail.

      It was a crime when Cheney, Addington, Yoo, Bybee, and their conspirators did it. The bad faith is obvious when you start out ignoring binding precedent.

    • NMvoiceofreason says:

      There was a part of this “written by John Yoo” dismissal that rattled around in the back of my mind, because it bothered me but I didn’t know why. Finally, the bubble came to the surface, and you must decide whether the contents of the bubble are worth sniffing or not.

      Let’s suppose you are a paralegal, and you draft a memorandum, which goes out over your bosses (one of those JD types) signature. All hell breaks loose in court and your client gets a stunning defeat in court. Your analysis of the OPPONENT’s position in the lawsuit was filed as your answer in court. Nobody gets fired of course, nobody gets hauled before the bar to remind them that What They Sign belongs to them, regardless of authorship. It is a nice dream (as opposed to the nightmare version – which is why you must double check everything your lawyer signs before you mail it).

      Bybee is as responsible (if not more so, legally) than Yoo for the memos he signed. End of story.

  17. alinaustex says:

    TheraP @10,
    Hi good to see you commenting here. My musings here is all at best slightly informed speculation – but what if the former Sec Defense, when faced with an international indictment say by the Spanish Courts – was forced to turn state’s evidence against the OVP -Cheney , Addington et al -Recall that Camp Nama was run by direct reports from the military to Rummy and Cheney. And to those that would question if Rummy would get thrown to the wolves at say the Hague _ I would respond by stating my belief that Team Obama really does want to protect and defend Our Constitution -and its taken this several months to start that process – because prosecuting former Adminstration officials is very complicate and very serious business. But its very hard not to clean up our own mess , and go to Ghana and tell them they most clean up their mess.
    My further slightly informed speculation is that the Durham investigation has already covered alot of this ground ‘where the Aspen roots intertwine ” And it a good bet that Durham will be named the special prosecutor regarding torture.
    Its also being whispered down here in Austin ( remember there are a lot of ex gwb43 employees/ officials have come home to Central Texas ) that Dawn Johnson -while awaiting confirmation for OLC -has been acting as sort of clearing house for all ‘open sourced documents ‘ that might help Holder sell the special prosecutor idea. And further its being said that Team Fitzpatrick has been actively engaged with Team Durham in understanding who ,how ,when and where did the “sand get thrown into the umpires face at the Libby trial .” ( It seems the Jesuits nuns not only taught these two fellas how to reason and debate -but also taught them to be very thorough and very competitive – )
    This is all looking up for our side TheraP . It is truly is darkest before the dawn …
    ( And bmaz go ahead and talk snarking smack about my opinions herein -but even Ms Wheeler is speculating that most probably Durham will be the sp – can’t wait to see Addington get the Whitey Bulgher treatment at the trial )

  18. NMvoiceofreason says:

    Yes, the color of law component of the conspiracy:

    Section 2340. Definitions

    As used in this chapter –
    (1) “torture” means an act committed by a person acting under
    the color of law specifically intended to inflict severe physical
    or mental pain or suffering (other than pain or suffering
    incidental to lawful sanctions) upon another person within his
    custody or physical control;
    (2) “severe mental pain or suffering” means the prolonged
    mental harm caused by or resulting from –
    (A) the intentional infliction or threatened infliction of
    severe physical pain or suffering;
    (B) the administration or application, or threatened
    administration or application, of mind-altering substances or
    other procedures calculated to disrupt profoundly the senses or
    the personality;
    (C) the threat of imminent death; or
    (D) the threat that another person will imminently be
    subjected to death, severe physical pain or suffering, or the
    administration or application of mind-altering substances or
    other procedures calculated to disrupt profoundly the senses or
    personality; and

    (3) “United States” includes all areas under the jurisdiction
    of the United States including any of the places described in
    sections 5 and 7 of this title and section 46501(2) of title 49.

    So how can we bag Bybee?

    • bmaz says:

      Exactly. Quite frankly, the same analysis probably goes to their involvement in other things such as wiretapping; although there is a more direct link there because of DOJ centrality and signing of the certifications.

    • bmaz says:

      Balderdash. Obama claimed to have ordered his staff to “look into it”. He did not order an investigation. Jeebus.

      • MadDog says:

        Yup. The CNN excerpt with Anderson Cooper is more accurate than jhutson’s diary title:

        Excerpt from CNN interview:

        ANDERSON COOPER: And now it seems clear that the Bush Administration resisted efforts to pursue investigations of an Afghan warlord named General Dostum, who was on the CIA payroll. It’s now come out, there were hundreds of Taliban prisoners under his care who got killed…

        PRESIDENT OBAMA: Right.

        ANDERSON COOPER: …some were suffocated in a steel container, others were shot, possibly buried in mass graves. Would you support – would you call for – an investigation into possible war crimes in Afghanistan?

        PRESIDENT OBAMA: Yeah, the indications that this had not been properly investigated just recently was brought to my attention. So what I’ve asked my national security team to do is to collect the facts for me that are known. And we’ll probably make a decision in terms of how to approach it once we have all the facts gathered up.

        ANDERSON COOPER: But you wouldn’t resist categorically an investigation?

        PRESIDENT OBAMA: I think that, you know, there are responsibilities that all nations have even in war. And if it appears that our conduct in some way supported violations of the laws of war, then I think that, you know, we have to know about that.

        • phred says:

          Wow, that’s weaselly. Not unexpected, but sheesh “we have to know about that”… Yeah? And then what? Duplicitous pinhead. Harumpphhh.

    • watercarrier4diogenes says:

      While I agree with bmaz that the title was, at the least, inaccurately worded, jhutson’s article is well worth reading. Mr. Hutson is the Chief Communications Officer at Physicians for Human Rights, the organization that shared the 1997 Nobel Peace Prize, so his credentials are pretty solid.

      In April 2002, Physicians for Human Rights forensic experts dug a test trench as part of a preliminary investigation for the UN at the Dasht-e-Leili mass grave site near Sheberghan, Afghanistan, and exposed 15 bodies. (somewhat graphic photo of trench provided)

      In an update to that post he relates that he’s already been contacted by CNNWire:

      I just received a call from the CNN Wire, which is now planning to promote the Anderson Cooper interview with President Obama, scheduled to air in full on Monday night at 10 PM Eastern. They wanted a quote from Physicians for Human Rights.

      Whether Obama said investigate or look into, he’s now countermanded his own administration’s initial claim

      that they had no grounds to investigate. In their statement, these officials claim that they lack legal grounds to probe these alleged war crimes because “only foreigners were involved and the alleged killings occurred in a foreign country.”

      and effectively cracked open Pandora’s Box.

      Between this, his direct and quick reversal of Rahm’bunctious’ “no public option” statement, and the Ghana admonition, I think Obama’s realized he’s been in a bubble. At a minimum, his words would have to be very publicly and painfully eaten if he backtracks. Bearing in mind that he’s not Dumbya II, why would he make these statements in the first place if he saw them only as smokescreens?

      PHR is just one of many organizations (EFF, ACLU, California Nurses Assn, etc) who have accounts at DailyKos for the express purpose of getting their messages out to a much wider audience than their own personal websites would be able to.

  19. readerOfTeaLeaves says:

    Also note the suggestion that Addington and friends went around John Ashcroft’s back–just as I showed they did with the illegal surveillance program (there are more parallels that I’ll hit in a post soon)–to work directly with Yoo to get their torture program approved.

    Good.
    One has to suppose that there must also be attorneys from within the military (Moro comes to mind) who are fully aware of the very same pattern. Thus, Holder has to address it if for no other reason than to remain respected by the military attorneys who were also sabotaged (well, except for Haynes) by this skullduggery.

  20. bobschacht says:

    Loo Hoo @ 4: ”Hasn’t Cheney already said enough publicly to be a target?”

    Isn’t it interesting how for several weeks his mouth was in front of every microphone, and now he’s apparently hiding in one of his secret undisclosed locations?

    C’mon, Dickie boy, we miss you! Surely you have more you can blab about with Rush Limpballs and the Faux News crew.

    Bob in HI

    • Loo Hoo. says:

      Yeah, and ‘lil dick too. I miss her long talking points that involve not answering questions and talking over people.

  21. Loo Hoo. says:

    Wow. Looks like everything might break at once! (Although I’ll bet there are other Bush/Cheney crimes we haven’t even dreamed of yet.)

  22. Loo Hoo. says:

    Leahy prefers a truth commission on the CIA/Cheney allegations on the basis that a prosecution would need to be too focused.

    Leahy told CBS’s Face the Nation that a commission of inquiry is preferable to criminal prosecution because “an inquiry would go into everything; a special prosecutor would be very narrowly focused.

    “I just don’t want to see an instance where if the higher-ups gave the order to break the law, that the ones who are punished are the lower-level front-line troops,” Leahy said.

    • bmaz says:

      Gosh that would be marvy! Can we get Lee Hamilton, Tom Kean, Bob Kerrey, Bob Dole and David Broder to lead it? Cause is has to be bi-partisan!

      Loo Hoo, please know that my snark is not aimed at you, but at Leahy.

      • Loo Hoo. says:

        My theory is that Leahy wants NOWness. How long would these prosecutions take? (assuming they start)

        And why couldn’t Rove be on the commission?

  23. emptywheel says:

    NM

    You’re utterly and totally missing my point.

    Yes, Bybee is responsible for the memo. I said that above.

    But that’s an entirely different question than the very practical question of whether Bybee knows where the bodies are buried. There’s no reason to believe he does–and every reason to believe he signed the memo without much thought or attention.

    So goodie, you’ve got one prosecution, but you’re still no closer to the people who orchestrated this.

    Meaning you can prosecute Bybee all you like, but he’s not going to get you beyond prosecuting Jay Bybee (if that, for the reasons bmaz raises).

    • NMvoiceofreason says:

      I’m sorry if I am missing your point. I do that sometimes. I’m not trying to be a punk, or demonstrate anything less than the immense respect I have for you.

      That said, my point is that Bybee is the “legal source” of the “color of law” protection the conspiracy enjoyed. Addington and Yoo may have thought they were smart-smart for not leaving their fingerprints on it – fingerprints which your tireless work has revealed. But the fact is that when the memos turn to pixie dust, you have a whole group of highly paid poofs waiting to go meet their Bubba for a lifetime in prison or a quick AEDPA trip to the gallows. when 18 USC 2441, 18 USC 1111-1117, and 18 USC 2340-2340A are staring you in the face, with no legal cover, the incentive to deal or squeal gets much, much stronger. Otherwise, there is always the excuse that “It was legal at the time” or “It worked” or “I did it under orders”.

      So of the thirteen evildoers from the Salon piece, who are the closest links in the chain to Bybee? Yoo, Addington, Gonzales, Rizzo, Haynes, Bradbury? Where is the weak spot? Is it the operational arm of the conspiracy: Tenet, Rumsfeld?

      I agree that there is a “very practical question of whether Bybee knows where the bodies are buried.” Just as important is tying him to the buried bodies: Abed Hamed Mowhoush, Abdul Jameel, Fashad Mohammed, Manadel al-Jamadi, Nagem Sadoon Hatab, Abdul Wali, Habibullah, Dilawar, Sajid Kadhim Bori al-Bawi, Obeed Hethere Radad, Mohammed Sayari and Zaidoun Hassoun. When he knows that he faces the death penalty for what he did, those lips are going to come right off of Cheney’s arse and start flapping. Same for Yoo. Same for …?

      The question is who (yoo who? sorry, had to so it). You start at the low level torturer, give them immunity if they testify, and run it up the ladder just like a drug cartel. Bybee isn’t atop that ladder. We all know who is.

      • bmaz says:

        No, no, this is an excellent discussion. Nobody’s opinion here is inviolate, whether Marcy’s, mine, yours or anybody else’s. Honest, forthright and intelligent discussion, even if it is disagreement, is always encouraged. That is what makes this place special.

        • NMvoiceofreason says:

          Thanks, bmaz. Not to be a punk, but I thought you were agreeing with me on most of the points (legal points) about Bybee’s role in the conspiracy. EW is undoubtably right, based upon what she now knows about how the conspiracy developed and who was a part of it. But thinking as a prosecutor, if you could get sworn depositions from the cast of characters we now know were involved, who would be first, and what order after that? Who should be prosecuted first, and what order after that? I realize that responsibility and proximity are reversely related: those most responsible are last to be tried and those closest to the physical crime usually get charged first. Nice thing about war crimes, murder, and torture resulting in death – they are are capital crimes, so we have some time to discuss it. EW – I hope I have not offended you in any way, because that was NOT my intent. Just think of me as a dim bulb that shines occaisionally.

          • bmaz says:

            Actually, I think I pretty much was. There is the attorneys as a group, then there the attorneys individually; to me, Bybee has always been more of a link than a cog. Doesn’t mean he doesn’t have exposure, but compared to a few like Yoo, Bradbury, Haynes, Gonzales, Rizzo etc. it may not be quite as pronounced.

      • Petrocelli says:

        “When he knows that he faces the death penalty for what he did …”

        Wow, raising a toast to that becoming realized, soon !

  24. Mason says:

    I agree with Marcy’s observation that the most probable defense to any prosecution would be to rely on legal memoranda written by Bybee and Yoo to negate that they knew what torture was and intended to do it. I think the SP would have a tough time persuading a trial judge to restrict the issues and evidence to whether the defendants violated the official policy based on those rather vague and facially invalid interpretations of existing law. With the ambiguities benefiting the defense, I certainly wouldn’t want to be the federal prosecutor arguing in favor of that limitation because it reeks of a cover-up.

    The most significant and apparent issue to everyone is the conspiracy to violate the law prohibiting torture (agree with bmazz on that).

    I think the issue Holder is struggling to decide is based on his realization that he’s faced with an all-or-nothing proposition. Does he go after the people who conspired to change the policy, or not? He’s found himself in the cross-hairs of history’s attention where a decision to settle for something less would be justifiably perceived as an act of moral, ethical, and political cowardice.

    I don’t particularly like him, but I think he’ll make the right decision. At least, I hope so.

    • bmaz says:

      I’ll give Holder this much, it is an incredibly unenviable position to be in and there is no solace in any decision he makes. Totally brutal position.

      • Mason says:

        Yeah, but I don’t believe he can credibly claim that he didn’t know he would probably have to make this decision, or one like it, if he decided to be the Attorney General of the United States. Anyone with half a synapse firing in an otherwise dark attic should have known that our government committed crimes against humanity on a grand scale while compromising the ability of the Department of Justice to do anything about it.

        If for no other reasons than to restore luster to the badge and respect for the Rule of Law, the new Attorney General was necessarily going to have to cross this Rubicon. He probably made this decision long ago in his gut, if not his brain, and now he’s checking the current and water temperature one last time before he surrenders to what he’s known along he must do.

        I hope Cheney’s assassination squad has been disbanded.

        • bmaz says:

          I agree with all that. And, sadly, I think he did make up his mind before. He made his bed so to speak. He is having pangs like you say, but if he is really willing to cross that rubicon whole hog I will be shocked. All sadly said.

  25. Loo Hoo. says:

    OT- 13 doctors demand an inquest into Dr. Kelly’s death.

    But now a team of 13 specialist doctors has compiled a detailed medical dossier that rejects the Hutton conclusion on the grounds that a cut to the ulnar artery, which is small and difficult to access, could not have caused death.

    It will be used by their lawyers to demand a formal inquest and the release of Dr Kelly’s autopsy report, which has never been published. It will also be sent to Sir John Chilcot’s forthcoming inquiry into the Iraq War.

    • Petrocelli says:

      If you think folks around here are peeved at what’s transpired in the Bush years, you have no idea how angry the Brits are about this and other transgressions committed over the Blair years …

          • Petrocelli says:

            Oh, bee-have !

            Blogs are nevvuh about real journalism … or so sayeth the epitome of real journalism, Chris Matthews.

        • Petrocelli says:

          Natch, I have many relatives and friends over there and they are a varied bunch, except for their distaste of the LapDog and his criminal acts. I do believe the British Courts will bring the full force of Law to bear and hope that Obama & Holder will follow suit (pun intended) *g*

  26. acquarius74 says:

    Possibly the first trials will be those 8 dusty cases in DOJ which CIA ref’d to them for investigation of CIA’s own agents/employees. I only know the name of one of them, Mark Swanner, who was interrogating Al Jamadi (the Ice Man) in Abu Ghraib when he died. (discussed here before) DOJ has taken no action on any of the cases and last info showed M. Swanner still employed by CIA

  27. zhiv says:

    Just have to note that I went into the Sierras on Tuesday at lunchtime and got back last night, and have spent hours today reading all of the astonishing work that ew has done in that brief amount of time. My own timing might have highlighted the blitz, but with the effort that it simply took to read it, I’m truly stunned at ew’s work in writing it all out, let alone reading and researching and keeping track of all the strands. In just five days, while I was worrying about important stuff like carrying around too much salami and cheese and cholesterol, ew has just been killing it, around the clock it seems. Thanks a million times for your extraordinary passion, intelligence, hard work, fine writing, and wonderful humor.

    Catching up, this is the first chance I’ve had to dip into the comments, and I see the Usual Suspects, the hearty band of DFH ew loyalists are pretty much all present and accounted for. You are the Happy Few, and it’s a shame that there aren’t more, although I’m sure that there is a legion of lurkers who aren’t sure what to say except, um, thanks, but ew undoubtedly values the DFHHF, if I can call it that.

    A magnificent enterprise. An amazing community. A very special writer and thinker.

    Just sayin. Carry on. And thanks again.

    • Petrocelli says:

      Honest Injun (pun intended), I only get my info about Brits from my many relatives and friends, who range from Drs. to Profs to CEO’s to Bodyguard to Chefs …

  28. bobschacht says:

    Every now and then, the Bush Monolith has shown a few cracks.
    If you start at the wrong place, you get little for a lot of effort. I don’t know if starting with Scooter Libby is an example, but Fitz couldn’t follow up with anything.

    But if you strike at the right place, the cracks ramify far and wide: e.g., Rove and Cheney realize that their interests are at cross-purposes, so then the finger-pointing starts and the whole edifice cracks.

    This has been part of the point this discussion has been about. Where to start?
    Of course, that also depends in part where you want to end up. Do you want to purge the entire cancer? Or do you only want a little cosmetic surgery that can be confined to the most obvious blemishes?

    Sometimes you have a choice about where to start.
    Sometimes you don’t.

    Bob in HI

  29. nolo says:

    The Capitalists’ Paper of Record, the WSJ, is reporting (as of about 10 minutes ago!) that the “unspecified” CIA program Cheney ordered the agency to withhold from legally-required Congression intel briefings, and the Gang of Eight, more precisely, was a “covert capture or kill” operation. [Two nights straight, at EW — wow, I gotta’ cut back!]

    . . .capture or kill al Qaeda operatives, according to former intelligence officials familiar with the matter. . .

    [However:]

    . . .In 2001, the CIA also examined the subject of targeted assassinations of al Qaeda leaders, according to three former intelligence officials. It appears that those discussions tapered off within six months. It isn’t clear whether they were an early part of the CIA initiative that Mr. Panetta stopped. . .

    So, the tactic will be to “dress it up” — as a program to carry out a presidential directive.

    One would think that CIA Director Panetta would have asked whether the program was pursuant to a presidential order, or finding, before briefing Congress, in late June.

    So — I suspect — the actual “Blackbriar/Treadstone” project Cheney kept under wraps for eight years, will turn out to be something else. Something broader, or more specific — but not something that Bush had ordered be done, with specificity.

    That’s my guess. Hey EW, feel free to run my graphics, of the Cheney CIA/Bourne trilogy connection, if you want. They are free for the filching.

    Namaste

  30. Mason says:

    I believe any experienced federal court defense attorney representing a client with significant probable exposure would be seriously considering talking to the client about submitting a proffer because nothing good is likely to happen to the client if he ends up sitting at the defense table with other defendants potentially facing the death penalty. The FIFO rule applies (i.e., first in to meet with the SP; first out with the best deal).

    Seriously, the jury isn’t going to have a sense of humor when it sees what was done and realizes why it was done (i.e., to obtain false information to use in justifying an unjustifiable war of aggression, which itself is a war crime).

    • bmaz says:

      Well I think that would be true if you put them in a position to have to make that choice, you are exactly right. But you cannot bring that pressure by gingerly nipping at the edges, you have to go after it. That is the problem.

      • drational says:

        For once in the past 8 years, it appears that a lawyer in the DOJ may be principled enough to act in visible and irreversible way. not just writing emails in protest, or threatening to resign, or resigning to “make a decision stick” or quietly dialing back the illegality.
        I know you are pessimistic and usually rightly so, but this does seem different. There are too many holes in the dike to be plugged by quietly prosecuting the little guys.
        As EW so thoroughly describes, there is just too much paper.

  31. Mason says:

    In other words, there could be a line of people, including lawyers representing Gonzo, Bybee, and Yoo waiting outside the SPs door to play Let’s Make A Deal.

  32. NMvoiceofreason says:

    EW – there is a SERIOUS problem with Mr. Poignant. You will never get his testimony.

    As shown in MOHAMED et.al. v. JEPPESEN DATAPLAN, INC., #08-15693 (9th.Cir. 2009) citing Totten v. United States, 92 U.S. 105 (1875) the activities of Mr. Poignant are properly subject to the State Secrets privilege, and therefore cannot be the subject of any legal action.

    Sorry.

      • NMvoiceofreason says:

        Within our current legal system and precedent, no. Remember, Jeppesen was decided in Mohameds favor. Totten is the absolute steel anvil that comes crashing down on the coyotes head. That roadrunner is never going to get caught.

        • watercarrier4diogenes says:

          Now that you mention Jeppeson… anything new out of Vaughn Walker?

          (silly me, I’d have read it here first, so there must not be)

  33. egregious says:

    the contractors who worked from the start to profit off torture

    An astonishing revelation. Leads to sleepness nights. This was done in our name.

  34. esseff44 says:

    WSJ has an article that says the CIA program that Panetta just briefed Congress on was planning to kill/capture AQ operatives.

  35. LabDancer says:

    I’ve learned to be loathe of betting against emptywheel, regardless her IANAAL accreditation — which in her case seems almost an advantage. But there are some critical limits to even this hypothetical exercise that even fearless leader cannot … okay, might not be capable of overcoming. Here’s a couple that occur to me:

    [1] the huge bogusity in the area commonly occupied by Obama, as qualified by Emanuel and Axelrod, and Holder.

    IMO this provides a lot of support for what I’ll refer to here as, not unkindly I hasten to assure, the bmaz point of view; ie. a huge dollop of skepticism that, given the Iran-Contra and Starr Chamber experiences, and despite some pretty unconvincing signs of protest by Obama against continuing some of the more egregious of BCCC policies [where BCCC = Bush Cheney Criminal Cabal], anything Holder’s in-house or ex cathedra appointed special prosecutor gets after is going to end up being pretty much a sop to those damned DFHs that are cluttering up Obama’s support base –

    indeed, so much support, it must be acknowledged the default position on any discussion that focuses on what is LIKELY to happen.

    [2] It’s when we start to consider wishes and horses and sugarplum faerie dreams as to what Holder SHOULD do, granting the apparent need to throw a bone to the White House position as [very loosely] interpreted, that we get into the realm of what I THINK emptywheel has going in favor of her approach here: what COULD be done with this mess.

    Scott Horton’s beast of a piece refers to three categories of documents, but really there’s only two:

    Category A: the CONCEPTIONS in the DOJ memos — which actually might not be restricted either to the horribles we’ve seen or to the OLC –

    and

    Category B: the FACTS in the reports from the DOJ OPR and the CIA OIG.

    Now, since even that which we’ve seen of the former lot has been the subject of some redaction, I’m proposing that the parts of those we have NOT seen plus the memos that have NOT been released contain stuff that’s beyond merely horrible, disturbing, savage, insulting, negligent and wrong, but clearly-beyond-parse-able criminal — which is why that part of this category has not been released, through ACLU FOIA case or otherwise.

    To be painfully clear: I would be prepared to back off that proposition if Ms EW disagreed, gleefully so if she were to brain me with one of her pearly strings of unassailable reason;

    but absent those, and bearing in mind the implication from Horton’s sources reporting the fairly recent occurrence of Holder’s having looked into this pit of venomous death [which I have to say, given my experience with two levels of prosecution offices, fits], along with the companion implication that nobody in the White House, least of all the two AxeEmJammer Kids, have actually seen anything or put even two seconds of thought into all this beyond looking at polls, I’d put my money on the holdovers in the DOJ and other legal sections throughout the federal government structure slow rolling the hell out of anything that even hinted at actual criminal liability.

    But, as we’ve all been thinking for some time [notably with Senator Whitehouse’s encouragement], it’s really Category B where the real action is to be found. And here’s a couple of thoughts why, recognizing this is going to be obvious to many here, but still I think worthy of being articulated:

    As to the DOJ OPR report, this is going to show a clear and unmistakable determination to walk around dozens to hundreds of clearly stated DOJ procedures, for no reason other that to avoid the safeguards to the department and to the people it is to serve, not to mention the republic, and with that, I would be prepared to bet, the “conspiracy” bmaz has mentioned.

    I want to raise another point here, again for clarity, especially given the mix of lawyers, non-lawyers and beings [at least one] superior to both those groups: the client-lawyer privilege that is the client’s the existence of which is intended to serve the client’s interests that so often proves to protect the lawyer as well — well, since the client in question is us, and our interests in whether or not we want the protection is framed by the head of the executive branch, that’s gone here, subject only to Obama maintaining or restoring it.

    As to the CIA OIG report, I think we’ve long agreed the source of the threat to the BCCC is clear: the IG or members of his office or both saw the tapes and interviewed folks, presumably CIA staffers but not necessarily only CIA staffers. Thus, the destruction of the tapes, which I’m thinking we’re accepting here occurred some time AFTER the contents of the earliest release of the OIG report got into the hands of the CIA — so as early as when Goss was DCIA — isn’t quite as much of an impediment to prosecution as it would be if no even arguably independent person had seen them.

    Now I’m getting pedantic here — hell, this is pedantry all the way; but basics matter in serious stuff like this — but the point about the OIG folks having seen the since-destroyed tapes [which might not ALL have been destroyed anyway, and further might not have been the only form of records made and available bearing on the torture sessions] is that we can reasonably expect not just that they WILL show bad stuff happening, stomach turning, retching, eyes-burning, screaming in the night stuff, I would think — but also [as I’m sure emptywheel has discussed at some point in the past] they will NOT show any “good” stuff happening.

    I’ve put that badly: the OIG types will be able to confirm there being no recorded evidence of such things as – well, questions being asked before, during or after torture sessions that have any reasonably arguable nexus to evidence gathering, or to any “actionable” or “useful” intelligence actually obtained [leaving aside that it seems likely to say the least that no such intel was ever obtained from torture sessions anyway].

    What that’s going to do is undercut, ENTIRELY I think, the entirely theoretical landscape of the plea of “I vas only following orders”. IOW, as to that huge category of CIA types that followed the OLC memos reasonably towards the stated goal of obtaining actionable intel? Nada; no one; never happened.

    That is: I willing to grant that Obama, and the AxEmJammer Kids, and HOlder too, who should have known better, all said what the said early on because, without knowing any better, and without taking the time to think it through like emptywheel and bmaz and mary and maddog and TheraP and JeffKaye etc etc here did, it never occurred to them that the category of prosecutable folks, those who did NOT “follow the advice”, or show any rational connection between what they did to detainees and what might serve national security, would be so freaking huge as to contain everyone, or virtually everyone — and that the category of excusable folks who “vas only following orders” would be so … small; meaning non-existent.

    And you know what? If I were so close to Obama that he made me AG, I’d sure as shootin’ be staring a long time out of the window too.

    • NMvoiceofreason says:

      Late night – wife kicks me out of the bedroom, so I’m here on the laptop. No files, nothing to back up what I say. But if memory serves, the “I was only following orders” and the “I thought it was legal” defenses are explicitly blocked by the Geneva convention. Have to agree the OPR report is going to bust some lawyer heads if it ever gets released. The tangled web of the conspiracy is coming unraveled.

      No one – especially not idealists – wants to think that the people they are replacing were monsters, degrading all of humanity, shredding the Constitution and the systems designed to protect it. We can’t really even complain now when Americans are taken, held without trial, not given a lawyer or even word to their families. When they are tortured, all we can do is shrug and say “too bad”. That’s us. Forever. We have become the torturers. We have become those who do unspeakable things to other people, where no one can see, and no one can be held to account. There really isn’t anything we can do about it, either. We are the Nazis at the end of WWII. We lost the war for the soul of our country, and now we can never get it back. Hopefully, other countries will come and shame us in facing what we did. But do it ourselves? Realize every dollar sent to a Republican helped to torture someone? When will my Pioneer cousin become ashamed of his dinners at the White House with war criminals, and the BBQs at Crawford? Will his daughter, who works for the Republican Senatorial Campaign Committee be stoned in the streets? Will people who took an oath to protect and defend the Constitution from enemies foreign and domestic quit being perjurers before we lose it all?

      Thank, LabDancer, for the excellent analysis. Thank to everyone else for letting me rant. Thanks to EW for the place, and bmaz for his tolerance of my flights of fancy.

  36. bmaz says:

    Don’t disagree with much of that. Here is one thing though; if Holder had the slightest moral compass or inner inclination to go down this road, he would have been staring out that window from the second he walked in his office door. Any man that has the putative knowledge, awareness and skills to be the nation’s Attorney General should not have needed to see a couple of reports to have deduced that he, his department and the country had a big problem. Even if the puff piece is right about his moral center coming to bear, that doesn’t mean he won’t pick the path of least resistance and most superficial of satiation to resolve his dilemma. I been staring out the window, thinking about all this, wondering what the fuck, for nearly eight years now. Eric started like last week?? Better late than never I guess, but it is kind of an auspicious beginning and isn’t real reassuring.

    • NMvoiceofreason says:

      Attorneys that I know have an amazing ability to ignore what is going on until the evidence is put in front of them. There was a car dealer here (now bankrupt) who took cars in trade and kept the money. Only after a messy fraud investigation did the lawyers quit taking work (collections!) from them. Nothing quite like waiting until you are a party to a criminal conspiracy to get out of it. That’s all of us now. If we don’t take active measures to stop them, we are just more supporters of their conspiracy (silence constitutes acceptance).

      Thanks for speaking out all this time and giving others a place to speak out too.

  37. anatomist says:

    I’m sure to be too late with this, but it occurred to me that the coordinated articles are more a threat than a trial balloon, that this is on the level of mutual blackmail. The irony would be delicious if right wing admin officials might face death penalty charges in a court of law, but who believes that could really transpire. But it is a nifty threat: “I’ve said so far I’ll play by the rules and let bygones be bygones, but “events” might, you know, force my hand. Rule of law and all that. So next time I give a national security address, please STFU.”
    If so, all of you working out how to make the threat plausible are certainly doing a good deed.

  38. Palli says:

    TheraP Thank you for the clarification but I wish I had not posted so quickly and gone to bed…I mixed up Larry James and Geoffrey Miller- I had to take a break from these terrible facts while our family worked out the logistics of a forced retirement and I saw how petty realities of this grim disregard for fellow humans has permeated our American culture. We are lucky but it certainly underscores the connectedness of this deep political/moral struggle and renews empathy. Before my father died he repeated often: Nothing good can come from this national immorality. Blatant, institutionalized torture in war returns us to the institutionalized days of recreational lynching.

  39. TheraP says:

    Gosh what a great thread! I must say I’m glad to see the issue of a need to investigate the torture back on the burner again. Let’s keep up the heat! (I myself am taking a break from TPM – but keep my eye here.)

    My impression of EW: She’s like a cat. Ready to pounce – just as soon as an issue she’s following appears on the radar screen. Then she’s completely focused, intently and relentlessly stalking her prey.

  40. Mary says:

    I don’t have time to flesh this out much, but to be honest, any kind of effort to give a “torture” mandate, especially under the existing regulations:

    The regulations require a “specific factual statement” concerning the matter to be investigated,

    is, IMO, going to be a disaster.

    I don’t think Holder can do what has to be done without some thoughtful rewrite of regs and also without including as a centerpiece something that will make the mandate internally “self-expanding.” I think you have to incorporate an investigation/mandate that focuses on Executive Branch interaction and compliance with Congress and the Courts vis a vis GWOT programs under regulatory, statutory, published EO, and Constitutional requirements. They (investigators) need that kind of approach, that will allow for all the sideroads and byways that let them easily range from PRA to War Crimes Act to Nat Sec Act to Rules of Evidence to Obstruction to conspiracy to commit obstruction etc. so they can build the boxes they will need. And the regs are going to need to provide for corresponding reports to Congress and/or courts and I think this approach, investigating the interractions, opens a perfect avenue for that – with reports summarizing the kinds of findings that would be helpful to Congress and the courts in evaluating existing rules of conduct, evidence and statutory obligations on the Executive (including all components ). They really need to push, also, for a separate military investigation of MI bc a good military investigator is going to be able to handle that, imo, for reasons I won’t go into here & now, better.

    To use an example from the Fitzgerald investigation, I’ll put out an analogy I know EW doesn’t completely agree with. But here is it is – IMO, if Fitzgerald had an only slightly broader mandate, he could have used the Cheney admissions on planting the NIE information covertly with the domestic press to fashion charges and put on pressure on the CIA agent outing. I tend to agree with EW that the NIE leak was a cover for more going on with the covert agent identity leak, but I also think that more than that, the NIE “leak,”(i.e., plant in domestic press to affect domestic politics) free standing, was a crime under the NSA. That is how you make the boxes – by having the ability to go into the “crimes” that they use to cover up other crimes. When you can “only” go after crimes directly related to a specific factual circumstance (as Fitzgerald’s mandate was limited to the Plame identity leak matter on which Ashcroft had recused himself) you end up with trying to make a box with just one side and no top or bottom. You cant catch what you need that way and you lose all leverage.

    fwiw.

  41. Mary says:

    Even more epu’d, but I saw this in Shane’s NYT piece today and if it is correct, then I abdicate the field to bmaz:

    The attorney general would prefer to keep such an inquiry narrowly focused and assign it to a line prosecutor, if possible, rather than appoint a special prosecutor, the person said.

    If that is the case, then this is all just kabuki. Holder gets to try to paint himself as brave and independent and it’ll just be window dressing.

    You either INVESTIGATE or you cover up. Here’s one specific thing only you can look into kinda sorta but not if it takes you elsewhere and only under in house rules and regs with no reports to Congress isn’t even a joke, for all the invented press and “republican reaction” and “blue dog concerns” it will generate. That kind of an investigation is just involving the Dept in more cover up and more politics. Anyone who would take it on under those terms would be an idiot or a tool.

  42. afisher says:

    I seriously doubt anything will happen thru the DOJ until after the OPR resport is released (supposedly in Aug). But from a political POV, the Obama Administration may hold the OPR report until after a vote on Healthcare Reform.

    Either way, what we should all be cognizant of facts on the ground…and be willing to say that anyone, from any political party should be held accountable…we need to take the politics out of this as much as possible (at least in public) or the backlash may have unintended consequences. I am pretty sure that the current Administration can weather the political storm, but when the DOJ announces a SP, we should all respond as politely as possible.
    There is sufficient hate on the blogs without us adding fuel to the bonfire that already exists.
    As a member of the AARP website, I see bloggers that attempt to ridicule and demean President Obama every day with irrational charges. If the web fills with political instead of legal issues with the SP review, I do fear that some of those individuals will explode.