With Justice Sotomayor Sworn In, Back to Torture

I was putting together notes for my Netroots Nation panel next Saturday on torture accountability and realized it has been over three weeks since reports said Eric Holder would appoint a prosecutor in the next two. But according to the LAT, Holder still intends to appoint a prosecutor–and still intends to sharply circumscribe the investigation.

U.S. Atty. Gen. Eric H. Holder Jr. is poised to appoint a criminal prosecutor to investigate alleged CIA abuses committed during the interrogation of terrorism suspects, current and former U.S. government officials said.

A senior Justice Department official said that Holder envisioned an inquiry that would be "narrow" in scope, focusing on "whether people went beyond the techniques that were authorized" in Bush administration memos that liberally interpreted anti-torture laws.

The story reports that some of the potential subjects of investigation are still at CIA–though had been on the verge of retirement.

Bracing for the worst, a small number of CIA officials have put off plans to retire or leave the agency so that they can maintain their access to classified files and be in better position to defend against a Justice investigation.

"Once you’re out, it gets a lot harder," said a retired CIA official who said he had spoken recently with former colleagues.

And it suggests that the contractors will also be investigated.

The inquiry would also likely target private contractors who worked for the CIA during the interrogations.

But perhaps the most interesting revelation is that some of the torturers did not know what was in the John Yoo memo.

Beyond that, officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

"A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

That’s interesting, first of all, because of the evidence that one of the documents used to develop the Bybee memo–and not the Bybee memo itself–described waterboarding as practiced. Is it possible that that was the only document the torturers read? Is it possible that Yoo wrote the Bybee memo knowingthat the more expansive limits would be followed?

In any case, if it’s true that the torturers didn’t know the limits in the Bybee memo (or at least, that DOJ can’t prove they knew those limits), then it all becomes a management issue again. Who didn’t tell the torturers of the limits of the Bybee memo, George Tenet? 

Of course, so long as Holder refuses to investigate those who somehow neglected to let the torturers know about the limits on torture as described in the Bybee memo, then it doesn’t really matter, does it?

  1. JasonLeopold says:

    I suppose this doesn’t have impact on what Holder does or doesn’t do but earlier this week Jerrold Nadler sent Holder a letter saying that if he does investigate it can’t be limited in scope to interrogators and/or contractors. Anyway, FWIW here is his letter he sent Holder Tuesday. http://www.house.gov/list/pres…..80409.html

    • JimWhite says:

      Thanks for the link to the Nadler letter, Jason. I find this sentence to be a very interesting shot across the bow of those who don’t want to “criminalize policy differences”:

      We have long embraced the bedrock principle that an individual’s responsibility to follow the law is not extinguished simply because someone else – even when that someone is a superior officer, high-ranking government official, or lawyer – authorizes them to commit an unlawful act, whether through order, policy directive, or legal advice.

      That’s getting close to the real heart of the matter–Nadler says that a “policy directive” that advocates illegal action is illegal and should not be followed. In other words, if the policy is illegal, there should be prosecutions and it should be crimnalized.

      Thank you, Mr. Nadler. Destroying the weasel-words these criminals hide behind is the first step toward true accountability.

    • emptywheel says:


      I dealt with that three years ago (maybe more) when I first learned of it.

      There is very specific information that came out with the CIPA stuff that conflicts with that. Also, it’s not even clear that B&J was Plame’s primary cover–we got that info from NOvak after he tried to clean up after his leak.

  2. Loo Hoo. says:

    Horseshit on all of them.

    “A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ ” said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

    You know, my first grade teacher didn’t need to tell any of us that we weren’t allowed to kick each other in the stomach or put our hands down each others’ pants, but somehow or another we knew…

  3. joanneleon says:

    So they didn’t know what was authorized in the memo. Isn’t that special?

    The defense will be: They didn’t get the memo!

    Even though there were calls to Washington, how often? Every day? How often did they call to get authorization for their torture sessions?

    Even though the CIA insisted on getting coverage for their enhanced interrogation techniques?

    Even if they are going to protect these guys (and gals) against the charges that they illegally tortured, and even by the standards of the illegal torture authorized by WH legal gurus, they illegally tortured — there is some subset of people who knew both the details of the torture sessions *and* the details of what was authorized via memos.

    But I guess that’s not the subset that will be the target of Holder’s narrowly focused investigation. Well that’s even more special. For the special people. The ones who have special rules when it comes to the rule of law.

  4. bobschacht says:

    EW, thanks for your dogged worrying of this bone…

    There are a number of implications of what you write. If they didn’t get the memo, then what was their authorization to violate the laws against torture? Did they have any other ”legal” advice that what they were doing was legal? Or did someone just order them to do it, so they did it without legal cover?

    Maybe the Nadler letter is one of the reasons Holder is slow-walking this right now. That is, maybe he thought he could tightly circumscribe this investigation, and then Nadler’s letter sez, Oh, no you can’t limit it that way?

    Keep nipping at their heels, EW!

    Bob in HI

  5. Petrocelli says:

    First Palin leaves Alaska and now Marcy is leaving Michigan … our Northern Flank will be left unguarded !

  6. worldwidehappiness says:

    Holder in 2011:

    We pursued allegations of abuses under the Bush administration, but, unfortunately, the alleged torturers didn’t get the memos and some possible evidence had been destroyed. But, shucks, we tried. Also, I sent a sternly worded letter to the CIA not to destroy any more evidence. Please.

  7. bmaz says:

    Of course, so long as Holder refuses to investigate those who somehow neglected to let the torturers know about the limits on torture as described in the Bybee memo, then it doesn’t really matter, does it?

    That’s not an investigation, that’s an obstruction.

    • Jeff Kaye says:

      Exactly. Such an investigation will only be used to obstruct an investigation into 1) the full parameters of the torture program, and the totality of those involved, as well as 2) the use of torture and “cruel, inhumane, and degrading treatment” today (to use the legal terminology, because it’s all torture).

      I could add that 3) the limited hangout planned by such a procedure, even if it goes forward, will be used to satisfy the pretense of accountability and the supposed morality of the system, while covering up the real parameters of the program and its current state of operations.

      I’m not one to toot my horn much, but I’ve given documentary evidence of how the SASC report showed that SERE psychologists are still used to run Special Ops interrogations and detentions, and the mechanisms to keep them in use — outside the parameters of the charter of their program — was specifically reported at the end of the SASC report (though left out of the Executive Summary).

      Lately, I’ve (and others) have shown how APA still twists their rules to allow for military “unethical” behavior, all to protect… what? What Congressmen and United Nations inspectors have been prevented by the Obama administration from seeing prisoners at Guantanamo? What the press is prevented from seeing at Bagram?

      The Obama administration clearly has no intention to investigate in any sincere fashion the use of torture. I have long said that my emphasis on the Army Field Manual’s use of torture or “cruel, inhumane, or degrading treatment” (which the U.S. denies, but PHR, CCR, ACLU, and Amnesty International all agree with me that it does) is so important politically, as silence or agreement with the Obama stand on interrogations on the AFM becomes a cover for the use of torture. If I am correct, only FDL (mainly Marcy and bmaz) have even joined with complaints on the AFM in the entire blogosphere. That’s really something. I can see not listening to me, but PHR, CCR, ACLU, etc.? What’s going on here?

      Speaking of delays, the Obama administration claimed it would have finished its review of interrogation issues by July 22. Did I miss something? Where’s the report of the committee on that, announced in Obama’s January EO?

      There’s not much I expect out of the American government anymore, so dulled it has become with lies, besotted with war crimes, and lazy with the indifference of an unconfronted bully.

  8. SmileySam says:

    With Obama now asking SCOTUS to block the release of the remaining Torture Photos, including one depicting a soldier holding a broomstick whose other end has been shoved up a detainee rectum, it’s hard to continue to support much of Obamas claims of transparency.
    I wrote a diary about it over at dkos and was very disappointed by the number of Democrats that are willing to blindly accept anything Obama does without practicing any critical thinking. It seemed to run about 50-50 either way. The only argument that seemed to make any headway against this blind acceptance is that if we take Obama at his word then the photos would not be released until after the war is over, some 30 or 40 yrs down the road.

  9. Peterr says:

    Three weeks, and Holder is still waiting? Time flies when you’re having fun.

    Lots of possibilities as to why, of course, and little visible evidence to suggest one of them over the others. Still, it does beg the question “What the hell is he waiting for?”

    Oh, and one little glitch in the penultimate paragraph:

    the torturers didn’t now the limits in the Bybee memo

    Should be “the torturers didn’t KNOW the limits in the Bybee memo”

    • emptywheel says:

      Yeah, it should. Thanks. You know, I caught that error once in that post. Know, now. Jeebus I hate when my fingers start overriding my brain.

  10. JimWhite says:

    Bad faith.

    All along, Holder has claimed that he would prosecute only those interrogators who did not follow the memos in good faith. The failure of those in charge of setting up the system of torture to share these memos with the interrogators shows, once again, that the primary location of bad faith is those who set up the program. Time and again, Marcy has shown us that the writing of the memos was an exercise in bad faith aimed at getting around, rather than observing, the law and international treaties. Now we have another example of the bad faith, where the organizers intentionally failed to inform the interrogators of the limits which were to be imposed on them.

    Move up several layers in the organization, Mr. Holder. That’s where we will find bad faith in abundance. Will we also find it in your office and the Oval Office?

  11. RAMA says:

    The claim that the CIA guys, private contractors, and military personnel who tortured prisoners didn’t know what they were doing was against the law is bullshit. The very fact that legal ‘clarification’ and ‘limits’ were sought by the torturers proves they knew what they were doing was wrong. Until ALL these guys, from top to bottom, are investigated and, where evidence exists, prosecuted to the full extent of the law, the U.S. has no moral standing in criticizing others’ brutality around the world.

    • Jeff Kaye says:

      Anyone who talks with professional interrogators or intelligence officers knows that these guys knew they were torturing, and were mainly concerned not with that fact, but with how they could cover their tracks. Hiding evidence of torture has been a primary impetus by the researchers into torture for a long, long time. It is the reason, for instance, for the preference of CIA professionals for the “touchless” psychological forms of torture because they don’t leave behind clues. (Remember Fredman whining that the torture wouldn’t pass the Istanbul Protocol? The latter isn’t a treaty, but a way of medically assessing evidence of torture. His admission that he was talking about that in the infamous Gitmo meeting for which SASC published minutes, is an admission that he was telling the Gitmo crew to watch out for using techniques that a medical examiner could discover!)

      • bmaz says:

        Anyone who talks with professional interrogators or intelligence officers knows that these guys knew they were torturing, and were mainly concerned not with that fact, but with how they could cover their tracks.

        You know, that is a fundamental point almost completely overlooked by nearly everyone discussing this issue, and especially the media. It is even more fundamental than interrogators and intelligence officials, the limits of non-coercive interrogation are taught in police academies and college justice studies classrooms every day. It is neither hard nor confusing. It is the determination to mask, conceal and rationalize coercive and tortuous conduct that is difficult and so convoluted. The truth here is a lot simpler than people make it out to be.

        • fatster says:

          I was horrified that the ability to accept torture and to defend it exists within the APA, including among its leadership, as Jeff Kaye’s recent post reveals. And echoing Arendt’s “banality of evil” theme is the concern among some members that if the APA passed a measure condemning torture “that psychologists would thereby lose jobs in non-military settings, such as jails and nursing homes.”

          What has happened here? When and how did this sickness infect these professionals? I am (almost) speechless.

  12. Palli says:

    As others have said: ONLY SADISTS DON’T KNOW TORTURE WHEN THEY SEE (DO) IT! Sadists should not be soldiers or military hired help. It is all by design.

  13. MadDog says:

    it has been over three weeks since reports said Eric Holder would appoint a prosecutor in the next two…

    This tendency of AG Holder to “overpromise” and “underdeliver” has struck me as well.

    The “torture prosecutor appointment” item is only the most recent.

    Other ones include his announcement, now many weeks ago, that he would deliver on a new Obama Administration “states secret privilege invocation” policy within “a couple of days”, and it has yet to surface publicly much less in ongoing states secret privilege cases.

    Another is of course the release of the CIA IG Special Report itself. It was promised more than a month ago, to a Federal judge no less, but no sooner than its delivery date was due, AG Holder’s DOJ suddenly insisted on needing another 1 1/2 months to scrub it of embarrassing classified stuff they wanted to keep redacted.

    And so it goes. The AG Holding Holder pattern is becoming all too readily apparent:

    Contemplate doing the right thing, but then the politico weasels at the White House get hold of hear about it (Rahmbo, Axelgrease, Greg Craig, even Obama himself?…) and then next thing one knows, we’ve all grown old and gray, our children have had children, and another decade or three has passed.

    • emptywheel says:

      I’m not so worried about the timing thing.

      For one, that was a reported detail, I’m not sure exactly where, and therefore might be from a DOJ lawyer trying to force his hand.

      And also, I’m not all that surprised by the delay because of the Soto hearings and approval. While there’s no real reason to delay, you can be sure that if they had announced the investigation beforehand, there would have been more questions on it, and it might have even cost us Lindsey Graham’s vote, which I believe we needed to get out of committee.

      • MadDog says:

        Did I mention the torture photos?

        You know, the ones the Federal judge, and even the Appeals Court said had to be made public.

        The ones that the Obama DOJ has now requested Cert from the Supreme Court with a 42 page filing, and a 216 page appendix.

        I’ll grant you the political calculus vis-a-vis the Sotomayor Supreme Court nomination.
        I’ll grant you the political calculus on the health care reform legislation.
        I’ll even grant you the political calculus on the 2010 elections.

        Should I mention that these make my point? *g*

        Your lack of surprise about politics being the ultimate calculus is not surprising.

        I am unsurprised too. *g*

  14. WilliamOckham says:

    This is going to be a hit and run comment, but I think this is worth saying. Any honest torture investigation will inevitably expand in scope. I would love to see Holder try to start a narrow one. The more facts on the record, the better.

    • TarheelDem says:

      That is my opinion as well. The investigatively documented evidence leads, not the conventional wisdom of those who see a legal issue–although in the end that conventional wisdom might turn out to be correct.

      And it moves grindingly slowly up the chain of command. Look at the timeline on Watergate; it took a good two years to get to the point that the key people started spilling the beans.

      • PJEvans says:

        But at least Watergate didn’t get slow-walked to the point where the guys responsible were out of office before the investigation even started.

        • LabDancer says:

          When the Watergate break-in broke out, Congress wasn’t already conflicted by overwhelming votes in both chambers for having given the executive branch a vaguely worded license to go to war against or do whathaveyou to political opponents.

          IMO Vietnam & the War on Commie Dominos provides the parallel, not Watergate. Note that NO ONE involved in the government’S breaking into & removing confidential patient-physician files from the office of Ellsberg’s shrink, Dr Fielding, ever faced criminal charges for that — or for all the unwarranted wiretapping of Ellsberg’s phones — or for the Nixon White House’s attempt to bribe the judge supervising the trial of the espionage charges against Ellsberg, Judge Byrne, once Byrne started ordering in Ellsberg’s favor on disclosure motions — which led inevitably to public airing of the the White House’s direct involvement in not just covering up those crimes, but their commission.

          • LabDancer says:

            In case anyone without a real-time memory of those days is inclined to challenge this, there may be some confusion in the fog of scandal between the coincidence in timing of Byrne’s throwing out the case against Ellsberg & the resignations of some of the main players in the White House [Haldeman & Ehrlichman — who executed the actual bribe; John Dean was fired] & near it [Acting AG Kleindienst — Jeebus; I’d forgotten how full folks with German ancestry the Nixon administration was]. None of those who left under those circumstances who were also actually deeply involved in the illegal bugging of Ellsberg & his shrink & the break-in & theft of papers were ever even prosecuted for anything to do with any of that; they all were prosecuted & went to jail on Watergate-related charges. Suggesting, in retrospect, that whole round of resignations [and firings] was an effort at misdirection by Nixon.

      • Jeff Kaye says:

        Look at the timeline on Watergate; it took a good two years to get to the point that the key people started spilling the beans.

        I understand you and WilliamOckham’s point of view about the possible expandability of an investigation. People I know have made the same point about the Burnham investigation to me.

        The analogy with Watergate falls short, however, as we are dealing with crimes not limited in time, but extending over decades, and covered up by multiple administrations. Furthermore, the attempts to really move on the torture issue have been going on a lot longer than the two years it took “to get to the point that people started spilling the beans.” Even more, people have “spilled the beans,” and the press, instead of running with the scandal, rushed to bury it.

        We have something far more difficult than Watergate here, thus the analogies to it may threaten to mislead us rather than enlighten or give hope. That’s the problem with historical analogies.

    • LabDancer says:

      I agree with all this, plus add that just attempting to draw a narrow mandate & concurrent powers to execute on same is far [tempted to say infinitely] more difficult than, say, the exercise Comey & Fitzgerald went through in 2003-4 in drawing the mandate & concurrent powers for the investigation into the Plame leak Pleak — & far more likely to come apart at the seams. Holder would know all about that, since he was high up in the DOJ all during the Starr chamber.

      • Mary says:

        It is going to be way more difficult than what Comey pulled off with Fitzgerald and I think you are right that it is way more likely to come apart at the seams. The pros Holder has going for him is the pool he can pick from at DOJ and the peripheral benefits of the Mitchell “learned helplessness” experiments on Congress and the Courts.

        • bobschacht says:

          …The pros Holder has going for him is the pool he can pick from at DOJ…

          This seems ambiguous to me.
          * By “pros” do you mean “professionals,” or do you mean “the positive things”? I’m betting on the former.

          * Why is he restricted to DOJ? Can’t he pick someone from outside the DOJ?

          Bob in HI

          • Mary says:

            I was being snotty – sorry. If he wants to create a fictional investigation based on Candyland rules of construction, the “positive” /s is that he has a bunch of Candyausas at DOJ to pick from. He isn’t stuck with inside the DOJ, but anything else (just as it would have in the Plame investigation) falls under the existing regulations that require reports to Congress in several sets of circumstances.

            Those regulations, btw, have never been really thoroughly tested under a Constitutional challenge (unlike the old Independent Counsel now lapsed statute, that did face and survive a Constitutional challenge) Then there is the fact that he could come up with a completely new regulatory scheme, since regulations are within his bailiwick, but if he gets too creative he runs into that same “unchallenged” aspect which could get you into a pretty steep investigation and then end up with a challenge to validity of the appointments.

            But in the end, when you are trying to structure an investigation that will give you only pre-arranged results and not bother important people, and will basically make it look like you “tried” when you aren’t, and will insure that foreign torture partners continue to be covered up – it’s hard to do that in any way that doesn’t unravel. Unfortunately, having the investigation unravel would probably effect the end result they want just as much as structuring it for that result.

  15. plunger says:

    Here’s one quote from Brad’s thread re: Sibel Edmonds testimony – many doors appear to be opening:

    Simon, above, raises some more important issues about the prosecution of Scooter Libby relating to Valerie Plame affair that no one seems to have latched on to yet. How does what Sibel say about Brewster Jennings cover being destroyed and the CIA front dismantled well before the Plame affair square with Fitzgerald’s prosecution? According to Sibel, there logically should have been nothing to prosecute. Brewster Jennings was kaput; it no longer existed after August 2001 (and before 9/11). So what has been going on here? I think Sibel has but one piece of the whole puzzle. No one can really understand the whole picture until a number of other players voluntarily come forward, or are subpoenaed to testify, to address some apparent criminal activities that have occurred.

  16. Boston1775 says:

    Maybe this is old news to you, but it is new to me:

    Torture, Psychology, and Daniel Inouye
    The True Story Behind Psychology’s Role in Torture?

    June 17, 2009 By Bryant L. Welch

    Bryant L. Welch’s ZSpace Page
    Military psychologists also colluded with the Justice Department to help CIA operatives circumvent the legal prohibitions against torture. Under the Justice Department definition of torture, if a detainee was sent to a psychologist for a mental health evaluation prior to interrogation it was per se evidence that the interrogator had no legal intent to torture the detainee because the referral “demonstrated concern” for the welfare of the detainee.

    Most remarkably of all, this whole process occurred under a protective “ethical” seal from the American Psychological Association (APA), psychologists’ largest national organization.
    emphasis mine

    • bobschacht says:

      Thank you for bringing this essay to our attention. It has a lengthy section on Sen. Inouye, who is one of my senators. This needs to get wider attention here in Hawaii.

      I wonder about Obama’s relationship with Inouye, and if that has colored his approach to issues relating to torture.

      Bob in HI

  17. Boston1775 says:

    One more thing from the article above:

    The APA-military connection

    One source of APA’s military connections is obvious to anyone who has worked at APA over the last twenty-five years. Strangely, it has been overlooked by the media. Since the early 1980’s, APA has had a unique relationship with Hawaii Senator Daniel Inouye’s office. Inouye was an honored WWII veteran, a Japanese American who himself was a medical volunteer in the midst of the bombing of Pearl Harbor. He entered office in 1962. For much of the ’70s, he was Chair of the Senate Select Committee on Intelligence. Later he became, and is currently, the chair of the U.S. Senate Appropriations Subcommittee on Defense, which, of course, makes up the largest chunk of federal discretionary spending and is why economists often split discretionary government funding into defense spending versus “everything else.” This appropriations committee covers not only all of the armed forces but the CIA as well. Put succinctly, Inouye controls the military purse strings, and is very influential with military brass.

    One of Inouye’s administrative assistants, psychologist Patrick Deleon, has long been active in the APA and served a term in 2000 as APA president. For significant periods of time DeLeon has literally directed APA staff on federal policy matters and has dominated the APA governance on political matters. For over twenty-five years, relationships between the APA and the Department of Defense (DOD) have been strongly encouraged and closely coordinated by DeLeon.


  18. tjbs says:

    Thanks for keeping this active since we can’t focus on more than one issue at a time as a country.

    Torture/ Murder/ Treason investigations will snowball once started no matter how limited.
    There are a few in congress competing to bring back a stricter adherence to the constitution and that could be catchy.

    We are holding innocent human beings we tortured for no other reason than the photos are hidden, that is for the TRUTH they reveal that can’t be spun by anyone. How long must the innocent ,who have been brutalized, wait for the JUSTICE DEPARTMENT to get back in the business of justice?

    I’m betting the torture feeds went to the White House where the orders were developed on the fly depending what kind of day the President or Vp or SOS were having. This was sadism pure and simple for sadists.

  19. Mason says:

    As Congressman Nadler pointed out in the following sentences, this core legal impediment prevents limiting the investigation to the actors and not the authorizers and people who gave the orders.

    “If, indeed, laws were violated, the Detainee Treatment Act of 2005, 42 U.S.C. § 2000dd-1, provides a limited defense for those interrogators who show that they relied in good faith on legal advice in using interrogation methods that they did not know, and that a reasonable person would not know, were unlawful. These determinations are necessarily fact-based, and making ultimate decisions as to what the facts might prove or disprove, before any independent investigation has occurred, is unwarranted and would undermine the credibility of any investigation.”

    • Mason says:

      As long as people have the right to claim they acted in good faith, they will and the ball of yarn will unravel all the way to the top.

      Holder’s delay likely is attributable to his fear that he can’t stop the ball of yarn from unraveling once it starts.

      Therefore, I predict he’ll delay awhile longer and finally announce that he isn’t going to do anything.

      • Mason says:

        A hateful, despicable, and cowardly result, but what else should we expect from the Obama Administration?

      • bmaz says:

        That is exactly what is going on here. Why do you think we are now hearing the information that the interrogators did not see or know the specifics of the limiting memo? They are sowing the seeds to have the ability to decline prosecution “because there is not a reasonable likelihood of conviction” and since they were never going to go further, that will be that. The DOJ may put on a little dog and pony show “investigation” but they are setting up the result they desire, i.e. no charges within the falsely limited scope.

  20. Mary says:

    But perhaps the most interesting revelation is that some of the torturers did not know what was in the John Yoo memo.

    It’s interesting, but unsurprising. When the reliance memos were first released this looked to be one of their failures as reliance memos go. They were not made public, so how were the rely-ers going to be able to rely? They were not going to be given copies of the uber classified docs to carry around, so how? Pretty much you are looking at someone like Rizzo or Tenet in the center, or someone-s like the Principals and those from the field who commicated with the Principals.

    So what do you do, then, about those who did not “go beyond” the memos, but also didn’t have actual knowledge of the memos? How were they different than the scapegoats soldiers at Abu Ghraib? If the “good faith reliance” standard is now some amorphous, “they kinda sorta thought it was ok bc someone kinda sorta told them they could” then you do go into LawLawLand. Delivery isn’t an inconsequential element of a reliance opinion and if they are going with constructive delivery, the construct they opt in for will be pretty damn interesting. How nifty it’s going to be, first having had the Saleh torture testimony case, now with Burge and the burgeoning CIA cases issues.

    And then there are The Preliminaries. Which apparently don’t have any memos supporting them. The Preliminaries, and all the issues of post-30 day disappearances into isolation, which don’t have any memos to support them that we know of. The Preliminaries, the issues of post-30 day disappearances into isolation and the threats against familiy members and hostage taking – oh, and the deaths.

    A “narrow” investigation can not be tailored within any real context given all the issues. And you can’t go looking at what happened “beyond” the four corners of the reliance memos without basically opening all the tortures. And given the nature of the memos, they are going to arguing a) there is a “good faith” argument to violation of the Constitution; b) only things that weren’t good faith Constitutional violations are bad; c) good faith is someone telling them they can; d) you can in good faith wander the world, kidnapping and disappearing people, anally assaulting them, stripping and hooding them, suffocating and drowning them, repeatedly banging them headfirst into walls, slapping, threatening family members and performing human experimentation on them for “learned helplessness” expermients – and it’s all OK under the United States Constitution if you’ve got The Faith, the “good” faith.

    And with the cables and info on US knowledge of what was going on in other countries, how do you keep up the CAT non-violation pretense, but how do you not go there in even your ‘narrow’ investigation if you are looking at how they boxing up of Zubaydah came up in conversation?

    I guess one thing that will help keep the investigation narrow is Obama and Holder waiting for al-libi’s death and the expiration of lots and lots of statutes of limitation.

    In other news, Hell just applied for to have parts of limbo rezoned to install an 8th circle.

    • bmaz says:

      This is exactly why the purported investigation and scope Holder proposes (and he is under fire from both neo-cons and Obama for even that) is such bullshit lunacy. Under the way this was constructed and implemented, the only people who really could have liability are the Principles and attendants.

      • Mary says:

        I do think in a CIA setting (maybe less so in a military setting where the consequences of refusal to follow the torture orders might be very different) that the torturers are at least as liable as the architects – especially when they have the example of someone like Soufan drawing the line as well as Cloonan and a few others. Especially when they know why they are in secret black sites, and it isn’t because everything they were doing is so patriotic and legal that Ashcroft wrote them their own songs – Let the Cia-gulls Sore.

        The architects are the ones with liability and I buy that, but people are responsible for what they decide to do, especially when it is a decision, not a military order.

        Still, the architects were sitting on the info -a lot of info – that specifically invalidated the reliance memos (info like the fact that al-libi and Zubaydah were not high ranking al-Qaeda operatives) and still the covered up the torture and participated in having DOJ misrepresent to multiple courts, to Congress, to the public -and then after the lies to sit through destruction of evidence, all without anyone, ever ever ever, even beginning to send out a preservation order.

          • skdadl says:

            There were levels and levels of trials at the time. The major trials were run by the Allies at Nuremberg, but the Germans also set up their own de-Nazification courts, under Allied supervision, of course, to deal with a variety of lower-level military figures, functionaries, and collaborators. I don’t know how the distinctions were made, although I think that the simple passage of time meant that most suspect individuals ended up in German courts.

        • Jeff Kaye says:

          Re Soufan drawing the line, that’s not so clear to me. Where exactly did he draw the line? At waterboarding? At the insect box? He and his partner hung around for some time after Mitchell and cohorts arrived. They played good cop to CIA/Mitchell’s bad cop for at least some weeks. During the Soufan period, enforced nudity, isolation, sleep deprivation and stress positions were used. I’d like to know what it took for Soufan to finally protest. That he did is notable, like the protest of Michael Gelles at Guantanamo. But like Gelles (see my article at Truthout currently, originally published by Jason Leopold), though not so egregiously perhaps, Soufan’s nobility is marred by previous behaviors on interrogations that do not pass the smell test.

          • Mary says:

            I probably wasn’t clear on my point, where I was trying to distinguish where I, personally, view CIA torturers as different in part from non-contractor military torturers vis a vis upchain vs downchain liability.

            The CIA torturers were not in a situation where there was a military chain of command imposed on them with regard to their torture participation and the non-military status of their torture situations is evidenced in part by the fact that when someone like Soufan refused (whether you agree with where he drew the line or not) to participated, he wasn’t taken out and shot and put in the brig and he clearly wasn’t under threat of anything like that, nor were they. So the volitional aspect of what they were doing, even “downchain” is, imo, even worse than the military setting (and I don’t excuse what the torturers downchain did in even the military setting.

            I do think better of Soufan than you do (and won’t go into the longer “why”), but that’s not so much what I was getting at as the fact that downstream torturers had an example of someone saying no, at some point. And they still opted to not say no.

            @58 “And when the superiors/other co-conspirators are not also charged and sitting in the docks beside the defendant, it provides a ready made place to point blame away from the defendant.” Oh yeah, and Obama isn’t going to let them put Cheney and Ashcroft and Tenet and Kappes and Rice and Bellinger in those seats. And it’s not like you’ll see Comey answering questions on his Arar affidavit or his Padilla presser or his collaboration on and approval of the first Bradbury memo. Do you think Obama and Holder are going to have Thompson in the dock on his torture field trip – knowledge of illegality of FISCT applications, and direct sign off on Arar’s shipment to torutre?

            It’s like watching a game of twister – left foot on blue dogs, right foot on yellow members of Congress, right hand in a pool of red blood. In the end, the point is just waiting for the participants to fall down but with a little small potatoes titillation on the way there.

            • Jeff Kaye says:

              Thanks, I better understand your comments about the effects of the chain of command (or lack of one) at those torture interrogations. Of course, Soufan had a different chain of command, as did the CIA. But it’s not like the military, to be sure. Of course, this leaves the contractor question open. There was someone Mitchell (and whatever others) were responsible to, even if that chain of command were more political, or even personal, than not. Was not the hiring of contractors in fact not, as one major reason, to remove the torturers from chain of command control or responsibility?

              Re Soufan and the FBI interrogators, what do you make of Soufan’s cite of the Padilla so-called “dirty bomb” plot as an example of getting good intel from FBI methods?

        • bmaz says:

          Oh, agreed. I probably should have distinguished between liability and ability to convict. I am also having a parallel discussion with somebody off blog and may not have been overly cogent in my response. Since we are talking criminal implications, the standard is beyond a reasonable doubt and you would be amazed at the kind of arguments a good defense lawyer can, and very often successfully do, argue in such situations. And when the superiors/other co-conspirators are not also charged and sitting in the docks beside the defendant, it provides a ready made place to point blame away from the defendant. This is crim defense 101, and it works quite well thank you very much. This is part and parcel of why this is all so stupid to be talking about the restricted scope; it is set up to fail, assuming they ever actually file charges in the first place. And Fed prosecutors charge generally only cases they are convinced they can convict on (state and local prosecutors are much looser in this regard).

          As to the within or outside DOJ, Holder has been adamant that not only will it definitely be from within DOJ but that it will also be a regular prosecutor, and not likely a “special prosecutor”.

  21. Jkat says:

    at what point do we start preparing the additional “indictments” for aiding and abetting war crimes ??

    i’m sick to hell about the idea that the major players in this beastly drama will never get a curtain call …


    still .. thanks to all of y’all for your continuing exposure of .. tracking of ..and parsing of .. this ..[to me] very important issue ..

  22. Boston1775 says:

    I am reading The C.I.A. Doctors
    Human Rights Violations By American Psychiatrists

    by Colin A. Ross, M.D.

    From the back cover:
    “Dr. Ross provides proof, based on 15,000 pages of documents obtained from the C.I.A. through the Freedom of Information Act, that there have been pervasive, systematic violations of human rights by American psychiatrists over the last 65 years. As well, he proves that the Manchurian Candidate “super spy” is fact, not fiction. He describes the experiments conducted by psychiatrists to create amnesia, new identities, hypnotic access codes, and new memories in the minds of experimental subjects.

    The funding of the experiments by the C.I.A., Army, Navy and Air Force is proven by the C.I.A. documents and the doctors’ own publications. The C.I.A. Doctors proves that there were extensive violations of human rights by psychiatrists in North America throughout the second half of the twentieth century, perpetrated not by a few renegade doctors, but by leading psychiatrists, psychologists, pharmacologists, neurosurgeons and medical schools.”

    I have a stake in this issue as do many Americans who never understood what happened to their loved ones.

    • Jeff Kaye says:

      That hypnosis has been used by the CIA in interrogations is irrefutable. We have this, from the checklist for interrogators, included as an appendix to the KUBARK manual, as well as the attention to the subject in the manual’s appendix:

      44. If hypnosis or drugs are thought necessary, has Headquarters been given enough advance notice? Has adequate allowance been made for travel time and other preliminaries?

      However, the creation of a “Manchurian candidate super-spy” is an entirely different thing. I happened to finally get around to reading Condon’s Manchurian Candidate, and while it is an entertaining book, with interesting psychological insights on character, it’s picture of brainwashing is pure fantasy. Condon posits that the Chinese found a way to manipulate Pavlovian conditioning to create through hypnosis automatic forms of control, and all of this in about a week or so, in subjects, including the production of assassins.

      Now all of this is bunk, though it follows lines of reasoning popular even among experts at the time (see British psychiatrist William Sargant’s Battle for the Mind — Sargant was with British intelligence, and apparently was CIA officer Frank Olson’s MKULTRA contact person at Porton Down).

      While there are reports and hints in the documentary record that CIA did experiment with trying to produce Manchurian candidates, that they were not too successful. But most of that documentation was destroyed, and we don’t know what really occurred (although if Ross claims to have found such documents, I should take a look at this book).

      But consider the well-known CIA-financed attempt to brainwash which was the Cameron experiment on “psychic driving.” This attempt, which included the most horrific kinds of mental torture and massive electric shock, to erase a person’s thoughts and implant new thoughts and personality, was a total failure. If CIA had already discovered the magic key to create super-spies via hypnosis, what need had they to finance this fiasco, the experiments of which went well into the 1960s?

      Psychologists Martin Orne worked for the CIA in examining hypnosis, and you can see his chapter on “The Potential Uses of Hypnosis in Interrogation” in the book The Manipulation of Human Behavior (citing the CIA front “Society for the Investigation of Human Ecology” as providing the grant for Orne’s work). While it might be hard to access this reference, Orne has a lot to say about hypnosis in this publicly available 1979 article.

      • Boston1775 says:

        Well, I’m finding his work eye opening.

        Here’s his conclusion on page 240:

        There have been extensive human rights violations by American psychiatrists over the last 70 years. These doctors were paid by the American taxpayer through CIA and military contracts. It is past time for these abuses to stop, it is past time for a reckoning, and it is past time for individual doctors to be held accountable.

        The Manchurian Candidate Programs are of much more than “historical” interest. ARTICHOKE, BLUEBIRD, MKULTRA, and MKSEARCH are precursors of mind control programs that are operational in the twenty first century. Human rights violations by psychiatrists must be ongoing in programs like COPPER GREEN, the interrogation program at Abu Ghraib prison in Iraq. Such programs must be carried out within CIA units like Task Force 121 (The Dallas Morning News, December 1, 2004, p. IA). Information pointing to ongoing human rights violations by psychiatrists is available in publications like The New Yorker (see article by Seymour M. Hersh, May 24, 2004). Yet the indifference, silence, denial, and disinformation of organized medicine and psychiatry continue. One purpose of The CIA Doctors: Human Rights Violations By American Psychiatrists is to break that silence.

        • Jeff Kaye says:

          I’m not disagreeing with your vis-a-vis the mind control programs, only on whether the CIA successfully was able to implement a Manchurian Candidate protocol and manufacture hypnotically-controlled assassins. But on your recommendation, I will read Ross’s book.

          • Boston1775 says:

            Well, I’ll tell you about my brother’s co-worker in the 70’s.
            He was a special ops guy – a Marine – who worked at the White House. It went downhill when he was transferred to Camp David.

            He went out for drinks one evening after work with a few guys.
            After a few, the place cleared out
            a bag was put over his head
            and he was thrown into the trunk of a car.

            He was taken to a place where he found himself sitting in a circle
            with fifty or sixty guys.
            Terrible things happened to him/them and he was trained to be an assassin.

            When they used him up, he was dropped off in some town.
            Nothing done for him.

            All I know is he was in lots of therapy.
            The last time my brother saw him, he was on his way to Florida.

            So, there you go.
            And this was all before there ever was a Bourne Identity.

      • Boston1775 says:

        Read the Book Salon.
        I’m spent.

        But it’s time to come to grips with the fact that the experimentation in the last half of the twentieth century went on in our hospitals, universities, mental institutions, prisons, and military facilities. They used our own people to perfect the present techniques.

        • bmaz says:

          It is overwhelming sometimes, it just keeps coming and piling up from all directions. Lawyers are torturing the law, doctors and psychologists are torturing patients and subjects within their care and control, politicians are cravenly consolidating power and disregarding the people, Constitution and rule of law. It just never stops.

  23. R.H. Green says:

    This talk about limited scope and memo-reliance reminds me of something I heard during Holder’s confirmation hearing, and want to ask those here their opinion on this.

    Holder was asked about the possible prosecution of those who-in good faith-relied upon legal opinions. His response was that anyone who relied on an “authoritatively written” legal memo would not be prosecuted. I had not heard that phase before and wondered what cards Holder had up his sleeve. After the hearing, Kit Bond raced to the waiting microphones to declare that Holder had committed to not prosecutiong those relying on legal memos, leaving out that qualifying phrase. He seemed to saying, “Holder can be confirmed; we’ve got him where we want him”.

    My immediate thought was that Holder had snookered Bond; that phrase had gone right past a man who was listening for the words he wanted to hear. Now, months later, I wonder if it was Bond who was snookered, or me, and the rest of us that want to see justice done.

    At the time, there was wide discussion as to the quality of Yoo’s writing; scholars noting the absence of the Youngstown Steel case, and matters better understood by others than by me. It also was widely quoted that a 3rd year law student would get a failing grade on papers written like those Yoo submitted for reliance by government officials. I thought that was what Holder meant in his reference to “authoritatvly written” legal memoranda. It also has ocurred to me that the term could refer to whether or not the author of legal opinions have the legal weight of thse written by a duly appointed legal authority, giving rise to questions of the responsibility of those in an “acting” capacity or one pending confirmation, etc. (For example Rodriguez testified that he had asked a couple of legal cousel whether he was obligated to keep “some old training tapes that he no longer wanted”. The advice he got did not come from Rizzo, or anyone in a line of resposibility, thus lacking authority.)

    Since 2 days after Obama was sworn in and his DoJ announced in the AL-Harramain case a recommittment to the Bush DoJ legal positions, we have been left wondering what’s afoot; we have speculation of mutidimesional thinking, of holdovers and plants, and of one set of scurrilous characters being replaced by another, and so forth. I keep wonder if another shoe will fall regarding that curious remark made what seems like long ago: “athoritatively written”. Any thought on this?

  24. kspena says:

    Here’s an interesting notion. I was listening to a conversation between Scott Horton and Ian Masters from August 2, 2009 in which Scott says there’s some feeling among GWB’s people that cheney might eventually be prosecuted and they’re trying to put ’some distance’ between themselves and cheney. That’s why they’re being soooo quiet while cheney is/was doing to much talking.

  25. R.H. Green says:

    Hey! Yerback. Les open th bar an maybe gisummore. My little joke @ 67 wasn’t a call for pity, or a complaint about being lonesome. I posed a question @66 for all the legal and otherwise sharp minds that were present at 3PM (Mountain Time); by 4:30 no one else had commented. The party had moved to another topic. I suppose the matter can come up again sometime, as said, the topic isn,t finished.

    • fatster says:

      Whenever I log in a comment or (more likely) provide a link and then things just hang for a while, there’s no response, nor even a comment posted about something altogether different, I have to wonder if I forgot to wear my deodorant over here or something. LOL.

  26. Jeff Kaye says:

    Ya never know. Someone might come back and check on the topic and their posted comments, and feel, if comments aren’t closed in making a reply. But I know that if I feel it’s unlikely no one will see my reply (posted long after the last post), then I forego commenting. So it’s a vicious circle. I’ve often wondered why the posts aren’t left open. Must be some kind of server thing.

    • fatster says:

      I do hope you’ll see this before it sinks to the bottom, Jeff Kaye. Is anyone following what psychologists are doing in jails and nursing homes and other non-military settings? This whole thing just creeps me out. Oh, and thnx.

      • Jeff Kaye says:

        I don’t know about nursing homes (where psychologists are mostly employed to do dementia evaluations), but there’s plenty who’ve followed the issue of psychologists and psychiatrists in jails and prisons. It’s not my area of expertise. A comprehensive google and lit search will find you plenty written.

        Basically, depends if you believe that mental health workers in prisons are there to help the prisoners, or force them to adjust to inhuman conditions. Of course, there are scandals about use of psychological and medical experiments used in prisons, and it seems likely, for instance, that some prison facilities, like Vacaville in California, were used for mind control experiments.

        • fatster says:

          Thanks so much, Jeff Kaye. I will google around about that, and I suspect the “nursing homes” referred to are more likely psych facilities (which, of course, brings up the issue of why we want to abuse people in those facilities, too). And, yes, Vacaville did have a bad rep there for awhile.

    • bmaz says:

      Jeff, that is exactly what it is. We run a lot of blogs here, with a fairly sophisticated setup. It takes a lot of server power, so we close off older threads. Also why we try to not have comments on any one thread exceed 300.

    • bobschacht says:

      No, it’s not a server issue. In part, it’s a historical pattern of herd behavior, which is gradually changing. A few days ago, I noticed (and commented) that at that time there were no less than 4 active Emptywheel threads going concurrently. Consequently, Emptywheelers are not entirely of the herd mentality, and have learned to check back on threads that interest them. This sometimes even extends across the bewitching hours (or wee bitching hours, if you prefer) into the next day. But three day threads are pretty rare.

      Update: Oops, I yield to bmaz @ 80, although much of which I say above is still true.
      Bob in HI

      • R.H. Green says:

        As the one who put his foot into this tar baby, let me point out also (too) that we’re talking about 3PM Mountain time on a Sunday afternoon. People have things to do, and that’s about 5PM on the Atlantic coast. Not to mention that where bmaz hangs it was about 109; he was probably in the swimming pool. I was only joking about the fact that I left a vibrant discussion to consider what I’d been reading and to write my question. By the time I got finished, there was nobody home, and didn’t appear for hours. Whoo!

  27. Mary says:

    @62 I think that they did actually get a real name of a real person who had really been over in training – the dirty bomb plot not so much. OTOH, with the DOJ press conf, he was a guaranteed conviction and he was convicted (although not on a dirty bomb plot) so I think SOufan can argue that they got the info that did lead to a real person and to a conviction. But its so dirty on every front I can’t really claim much for the FBI/DOJ on that one.

    @66 – we’ve had that discussion on and off here from the get go and have had some divided camps. My take, and bmaz’s, has been that Holder did not then and does not now have any solid commitment to doing the right thing.

    Re: “authoritatively written” that’s the kind of weaseling that makes it seem very unlikely that anything real will come of any of this (especially with the repeated reassurances Obama and HOlder have handed out to CIA). Typically in legalese, authoritatively written would mean that they were based on proper legal “authority” (which would mean statutory and case law, treatises, etc.) i.e., with citation to proper legal authority for the conclusions reached.

    OTOH, it’s the kind of phrase that could be used to mean anything or nothing; and even if it does mean that the memos have to be based on cited legal authority it doesn’t really give any credibility threshhold for that. IMO, thats where the OPR report will come in to help bailing Holder out of problem and sinking the nation. If they won’t state the obvious on the legal opinions, that they are so beyond the pale that no reasonable lawyer would have written them; then Holder can claim that you don’t get to the “no reasonable client would have relied on them” next step and they wash it all up and put it to bed. Of course, then you have the problem of why does it matter how “authoritatively written” they are, if the reliers didn’t ever see the opinions and read them?

    The heart of a reliance opinion is that it is given to the client.

    • R.H. Green says:

      Thank you for your consideration. FWIW, I put not having a commitment to doing the right thing in the category of one scurrilous team handing off to another.

    • Leen says:

      “we’ve had that discussion on and off here from the get go and have had some divided camps. My take, and bmaz’s, has been that Holder did not then and does not now have any solid commitment to doing the right thing.”

      Really respect both of your opinions on most issues. So Holder is going to do another Marc Rich on us. The Rich, well connected, powerful ARE ABOVE THE LAW

  28. Jeff Kaye says:

    Continuation of my comment @54 (a reply to Boston1775 @50)…

    You might want to take a look at this very interesting article, which discusses some of the methodological problems in answering the hypnosis question:

    Journal of Personality and Social Psychology
    1965, Vol. 1, No. 3, 189-200

    …. It is generally considered that a hypnotized subject relinquishes considerable social and behavioral control to the hypnotist. A subject frequently reports that he felt compelled to carry out the commands of the hypnotist; that he could not resist the suggestions made by the hypnotist. This apparent increase in the amount of social control relinquished by the hypnotized subject to the hypnotist has raised the unresolved question whether a subject can be compelled, under hypnosis, to perform apparently antisocial acts or behavior which is perceived as injurious and dangerous to self or others. Estabrooks (1943), Rowland (1939), Weitzenhoffer (1949), Wells (1941), Wolberg (1945), and Young (1952) have stated that, provide adequate techniques are used, hypnotized subjects may be compelled to carry out apparently antisocial actions, while Erickson (1939), Meares (I960), and Schilder and Kauders (1927) have disagreed with this viewpoint.

  29. Leen says:

    Sounds like good news. But Eric Holder needs to decide whether he really meant that “no one is above the law” . During his nomination hearings I heard him say “no one is above the law” so many times I lost count and started to wonder why he had to keep repeating those so far hollow words.

    Can you imagine a peasant who has committed an alleged crime saying “I did not know” The peasants ass is most often thrown in prison.

    No one is above the law. I want to believe