How a Review Gets to Grand Jury in Five Days or Less

Update: Several people have corrected me that contextually this paragraph refers to the torture tape investigation, not the torture investigation. I think it’s still a good sign, but may not yet reflect on the torture investigation.

Although I have publicly suggested that Holder’s selection of John Durham as Special Counsel to investigate torture sets an upper limit on the seniority of those who might be targeted (because you don’t want an AUSA indicting, say, the former Acting Counsel of CIA), I did hold out one hope that Durham’s selection was a good sign. After all, Durham has already been investigating why Jose Rodriguez and others destroyed a bunch of tapes portraying the abuse of Abu Zubaydah and Rahim al-Nashiri. We know Zubaydah’s torturers exceeded the limits of the Bybee Two memo when they waterboarded him. And we know al-Nashiri’s torturers threatened him with drills.

So there was the possibility that Holder’s selection of Durham effectively amounted to an expansion of Durham’s earlier mandate, from an investigation of the destruction of evidence of abuse to an investigation of the abuse itself.

Which is why I’m so interested in a passage that Jason Leopold pointed to in the Walter Pincus story reporting that CIA will pay for CIA officers’ legal fees (the article doesn’t really say whether CIA will pay for contractors’ legal fees).

In that investigation, Durham has asked agency contractors to give testimony before a grand jury in Alexandria next month, according to three sources familiar with the matter. It is not clear that the witnesses will testify. 

Durham has been officially investigating the torture itself (as opposed to the torture tape destruction) for just four days. And his mandate is–at least officially–just a review of the earlier cases. Yet he’s already scheduling testimony before the grand jury next month?

I’m no lawyer (but bmaz is, and he agrees with me, and he’s even a bigger skeptic than I am), but there is no way Durham would be scheduling testimony before a grand jury that didn’t significantly arise from his earlier mandate. So these contractors are–at a minimum–almost certainly tied to the abuse of al-Nashiri, and might be tied to the abuse of Abu Zubayahdah.

The torture apologists are wailing that there’s no reason to reopen investigations that–they claim–were already completed by DOJ. But it appears that one reason to do just that is that CIA destroyed evidence they knew to be abusive and the scrutiny of that act has resulted in sufficient evidence to go after the torturers directly.

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165 replies
  1. JasperJohns says:

    As a neophyte here I’m musing has anyone in the TM picked up on this? I’ve ot seen a whisper of it. Not insignificant news is testimony before a grand jury.

    • JimWhite says:

      The quoted section in the post is from a story in the Washington Post, it’s just not particularly prominent. So again, the Post buries the lede…

        • JimWhite says:

          We might all need to. See Jason Leopold’s comment number 52 in the previous thread. Pincus’ writing is ambiguous and it is hard to tell which investigation is producing the upcoming GJ testimony. Leopold suggests the testimony might be for the tape destruction investigation rather than the torture investigation.

          Here is the quoted paragraph along with the immediately preceding one:

          The new federal inquiry will be conducted by Assistant U.S. Attorney John H. Durham, who since 2008 has been investigating the destruction of CIA videotapes of detainees undergoing waterboarding.

          In that investigation, Durham has asked agency contractors to give testimony before a grand jury in Alexandria next month, according to three sources familiar with the matter. It is not clear that the witnesses will testify.

          • JasperJohns says:

            Thanks again for the hand up. I’ve been lurking for quite the while and have found the posts necessary reading.Instinct has me cringing whenever I hear the expression, A Nation of Laws.

          • lllphd says:

            fwiw, i read that context to refer to “that” investigation, i.e., the tape destruction. again, fwiw.

            and it actually makes more sense, in that durham has been touted as being methodical, even-handed, etc., which would not square with such haste. i’d actually be more comforted by this interpretation than the notion that a grand jury already being impaneled for the newer investigation.

            fwiw.

  2. ghostof911 says:

    It’s a bit surprising that the developing Sibel Edmonds story is getting no attention here.

    Interestingly, she (Sibel Edmonds) claims that (Marc) Grossman blew the cover of Valerie Plame’s company Brewster Jennings back in 2001, causing CIA to shut it down, so Robert Novak was not guilty of exposing the CIA cover mechanism.

    • emptywheel says:

      Let’s see:

      1) It is not news: that has been out there already for several years
      2) It is contradicted in significant way by reliable public records and as such probably has been thoroughly misinterpreted and overhyped which is not surprising given how narrow the knowledge on which it was based came from
      3) I am spending 10-12 hours a day covering stuff that is news and that we can do something about and as such don’t really have a lot of time rehashing 4 year old information

      Still surprised? Need any further explanation? Are you really asking me to shift my attention from news to old, mis-interpreted information?

    • DWBartoo says:

      Dear ghost;

      As you will recall, I have encouraged you to ask questions and continue to put forward those ideas which matter to you.

      However, should you be willing to listen to any advice of mine, might you consider that some posts and the threads which grow from them deserve the respect of your full attention WITHOUT superfluous, distracting or silly comments?

      While it may have escaped your notice, we are privileged to have Marcy and the wheelhouse gang in residence.

      You may not find this a credible perspective, but I shall share it with you, nonetheless, in the hopes (however audacious or forlorn) that you may find some sympathy with it.

      Sometimes, it is wise to be quiet and pay serious attention to those who actually know what they are talking about.

      One may, possibly, actually learn some important things.

      Most sincerely;

      DW

          • Petrocelli says:

            LOL … or GFY but perhaps it’s too early for that.

            I’m fine … deluged by guests pests for the next 10 days.

            • DWBartoo says:

              You are a lucky man and a superb host.

              (Everybody knows that. I intend to visit soon.)

              ;~D

              (Now, no more superfluous, distracting or silly stuff from me – I got advice to uphold.)

              DW

              • Petrocelli says:

                Jo Fish also told me he would visit but no word from him since. Catch me on Late Nite and let me know when you’re heading North.

                Maybe all this will come together for an “emptywheel” meetup in the Big Smoke (Toronto).

    • MartyDidier says:

      Good question and I read Emptywheels reply. For me, Emptywheel’s reply makes sense from today’s perspective. And I do respect the effort that goes into providing this great focus that they offer. Actually I thoroughly enjoy coming here and reading as much as I can. Plus one reason given is the time it takes to provide this offering and another one is the time it takes us (and me) to read it. Just so you know someone doesn’t want me to participate and have been consistent with crippling me in every way possible. But I’m still at it. It can be a mind swell.

      However because of what I know, the landscape is rapidly changing now in a different direction. In time, situations like Sibel Edmond’s (and others) will start to take center stage again only this time on a bigger platform. There is a valid reason for this. There has been ongoing efforts to suppress people like Edmonds from telling her story hoping to get groups like Emptywheel to take notice. Again this is changing and like you, I can hardly wait until the change shows up here. Emptywheel to respond to this change may have to broaden their efforts with more manpower, that is if they want to of course.

      Much of the news that I know is market driven taylored to a specific groups. What else is changing is US as we are now learning what REALLY has heen happening. Many more of us are more imformed than in the past. This is going to continue but at a faster rate. With knowledge comes a need to learn more so we’ll be looking out for sites that can combine Edmond’s story along with others in with what really was happening like what Emptywheel does.

      I’m one of the specific admires of this site but I also have priviledged information that very few have. Take my word that our news landscape is changing and the truth won’t be pushed down anylonger. For me, it’ll be most interesting to read here and other places the great work done by these fine people with micro-defining what happened in the past with the new truth. A much different and accurate picture will surface to everyone’s surprise. There are specific things I’m looking for and I’ll be a active participant when this happens.

      Please accept my comment for now as because of my dilemma with being pushed around on the internet, I have to take copies home to read. This is easier said than done. This one article will be an important one for me to review.

      Marty Didier
      Northbrook, IL

  3. perris says:

    it appears that one reason to do just that is that CIA destroyed evidence they knew to be abusive and the scrutiny of that act has resulted in sufficient evidence to go after the torturers directly.

    maybe, (I rather think probably) there’s information and evidence that’s available but we don’t know where to find it

    I’m really holding out hope that it’s the actual cia instigating this investigation since as wilkerson says, most of them were not on board with these programs

    I also like to think the cia is doing what it takes to make certain cheney pays for his part exposing one of their covert assets

    • lllphd says:

      agreed on all counts, perris, and will add one. i think the good guys at the cia are fully BS with cheney for turning their treasured agency into a sleezebag banana republic death squad (and maybe even for forcing what death squad stuff they do and have done into the public eye, who knows.)

      • whyknot says:

        That is a salient point. What must it have felt like for career CIA officers to lose completely over to the FBI the responsibility for interrogation of captured foreigners? And to further the point that the WH thinks everybody fucked up to put oversight of the FBI on this issue directly to the WH NSC? When a vaunted agency loses turf that broadly and publicly one can assume more shit is headed at that fan.

  4. wigwam says:

    The torture apologists are wailing that there’s no reason to reopen investigations that–they claim–were already completed by DOJ.

    I heard your friend Crazy Pete on NPR a few days ago claim that re-investigating these cases is tantamount to “double jeopardy.”

    Damn it, these are horrific federal crimes that are thus far unsolved. Law enforcement should investigate them until they’ve identified the perpetrators and have assembled sufficient evidence to prosecute them or decided that doing so is an impossible task, at which point it becomes a cold case. That’s standard operating procedure.

    Also, the CIA is not a government unto itself. It’s internal findings and punitive measures do not suffice. Crime and punishment is a matter for judges and juries in this nation.

  5. fatster says:

    How does she do it? At 7:17 (see previous thread) she wrote: “Oh good. THen I’ll do a post on it.” At 7:34, this new article appears. And it’s a good ‘un, too.

  6. rincewind says:

    The graf that begins “In that investigation, Durham has asked…” immediately follows this:

    The new federal inquiry will be conducted by Assistant U.S. Attorney John H. Durham, who since 2008 has been investigating the destruction of CIA videotapes of detainees undergoing waterboarding.

    Seems clear to me that Pincus is referring to the tape-destruction investigation, NOT the newly expanded torture investigation, when he talks about contractors giving testimony to the GJ (and Pincus doesn’t give any indication of WHEN Durham asked contractors to testify, just that he already has done it).

    Does it seem odd that Pincus tossed in just this one bit about contractors in a piece about CIA covering employees‘ legal fees?

  7. JasonLeopold says:

    Even if the GJ hearing is related to the destruction of the torture tapes can Durham still take testimony from the contractors related to the torture cases he is reviewing?

    • timbo says:

      He could cross-examine looking for motive to destroy the evidence. In order to charge with obstruction, you have to have a reasonable explanation of motive. This is best done in a grand jury setting before deciding whether or not to make a charge of obstruction.

  8. whyknot says:

    Well if investigating the cover-up is an easier first step than the crimes themselves, okay. Also I like that expanding Durham’s mandate has brought out in public the fact that previous investigations were obviously tainted and that no conclusions (aka lies) from the previous administration in this area can be relied upon.

    • timbo says:

      Perhaps Holder was simply getting official credit for something that Durham was going to do anyways. My guess is that Durham would have informed Holder in advance that he was proceeding with grand jury cross-examinations of contractors…thus giving Holder and the Obama administration a chance to get out ahead of this story and take some of the political heat off of Durham. This would also likely loosen more tongues easier to see that Holder was supporting a widening of the investigation that Durham was no doubt pursuing?

      • whyknot says:

        That’s reading tea leaves but yeah, I see your point. If Durham went to Holder and said I’m ready to GJ on obstruction perhaps Holder felt a wider mandate would accelerate many goals. Some folks here thought it was a whitewash and who knows how it will break, but to me it is only logical to let the guy investigating the evidence destruction look at the why/who as well. The complete picture is hard enough to assemble w/o having two investigations on it. Elevating the man doing the obstruction inquiry to prosecutor also turns up the heat quite neatly.

  9. bmaz says:

    Update: Several people have corrected me that contextually this paragraph refers to the torture tape investigation, not the torture investigation. I think it’s still a good sign, but may not yet reflect on the torture investigation.

    These are my comments on that from last thread:

    Jason, that is the thing, I don’t think you can tell which investigation/review he is servicing if this blurb is true. At least a certain group of witnesses is going to be central, or sufficiently related, to both prongs of Durham’s jurisdiction. He may be technically bringing them in under the auspice of tapes, but be probing torture – we don’t know. Heck he may not fully know. But it is encouraging that he is hauling witnesses and engendering evidence in front of the GJ either way. And if I were him, it would be an irresistible opportunity to just investigate the whole gig. I only hope it is really true, because the scuttlebutt was that he was winding down again on tapes alone prior to this (but that doesn’t necessarily mean he couldn’t still have loose ends to clean up and adduce on tapes alone; that very well may be the case).

    and

    That would be my take. As long as the witnesses are there for a legitimate purpose, he gets to adduce evidence from them. Trust me, as a defense lawyer, I would object down the line if my client was indicted, but I would lose on that. The two subjects are intertwined sufficiently that there is no way to say he is doing anything improper. And I simply do not see how you could have witnesses in front of a GJ that have evidence of torture and not start cutting in at those edges; I would in a heartbeat if I were him (caveat: I have never been a prosecutor; but have watched plenty o this stuff from the other side).

    • whyknot says:

      This is fascinating in an OMG the US didn’t do that really, did it? kinda way. Thanks v. much to EW and you for trying to suss out what lies between the lines. It feels to me like indictment day cometh.

    • emptywheel says:

      Well, and given the timing–so long as his mandate has been expanded by the time they haul their ass before the GJ (or refuse to testify), then he’s good, it seems to me.

      • bmaz says:

        Unless he is careless, and that is certainly not his rep, he is fine. And I think whoever, for whatever, he is putting in front of the GJ, on either or both, prongs is without question a positive thing.

    • LabDancer says:

      “The two subjects are intertwined sufficiently that there is no way to say he is doing anything improper.”

      I like your line on “irresistible opportunity”, and from there I also like how you go on to get closer to the thing you’ve not actually done yourself, but know well enough from tracking it. The key is the opportunity screams of being irresistible & thereby deflects effective criticism — not just for him, but for Holder, of whom it must be said not ‘may’ but WILL be who takes the heat, so not ‘may’ but WILL be who makes the call.

      One of the many, many benefits of reading Jeff Kaye’s posts is that they’re written from an unassailable position. Durham’s track record in Connecticut, particularly with the horrible bridge between the mobs & Boston law enforcement, suggests he’d recognize that early, instinctively & unalterably, and move on from that position. I have little doubt he’ll get all that’s there to be got, & any concerns about what’s to be done will return intact to Holder’s desk. If Holder has been of a mind to contain & bury, Durham was the wrong choice, notwithstanding the implications from his assignment to date.

      It does leave me in wonder at the complexity in human motivations, & particularly at Mukasey’s.

      • bmaz says:

        Well, I still do not think Durham will go anywhere near as far as you are thinking; but dearly hope I am wrong. That said, while there is a possible defense (at some point if there are resultant defendants) argument that an indictment is based on an improper commingling of evidence, even I think that argument is a dead loser so long as Durham is smart in how he does it (the only remedy is a motion to remand anyway). And I certainly trust him to be way ahead of the game on all that. This is really pretty much a non-issue and I would be shocked if he is not thinking ahead in his examination of any witness from here forward. That is exactly what he should be doing. And agreed as to Holder.

        • LabDancer says:

          I only want to deal here with the first two lines of your response. They appear to reflect all that separates us in our respective views from our respective seats in the peanut gallery — but still I should have seen them coming & that’s my fault for appearing somehow the optimist, when I was really just trying to make an observation on human nature in context.

          So I’ll try again [any apparent pedantry being a function of my own caution & no comment intended or otherwise on you].

          In my view — or rather, as I’ve written before, my adoption of what I think is the view of WmOckham, which I’ve readily adopted, encouraged by practical experience
          [his appears based more on more generally reliable innate qualities],

          there exist plays with plots & themes so large & so fortified by their intersection, they sweep the players along with the play: intervention in WWII, Nuremberg, in my consciousness Watergate [at least mostly, until it got to the Oval Office desk of a bot of course] … health care coverage reform Magic Bunny willing. And insofar as concerns the Bush administration [Bad], yielding I hope no more than necessary to the “one image” theory of hysterical disposition of presidencies [per Tweety], surely torture is The One.

          I don’t know — none of us in the gallery know — how far & by what routes the various individual witnesses & their perspectives & their records & their courage & their cowardice will take Durham. Most of us here recognize that existing laws & procedures are technically sufficient to get to the entrances of the chief co-executives, so the deciding factors appear destined to end up being less what way than will.

          I expect others might see more in other parts of the Pincus piece, & perhaps less than I think should be read into these two consecutive passages, but to me they tell a lot about the state of affairs:

          “In that investigation, Durham has asked agency contractors to give testimony before a grand jury in Alexandria next month, according to three sources familiar with the matter. It is not clear that the witnesses will testify.”

          And then of course part of what ew’s post is based on:

          “Officials said the number of CIA employees seeking legal representation could grow larger than the relatively small number of people directly engaged in contact with detainees as Durham gathers information, interviews agency employees and takes testimony in his expanded inquiry.”

          I want to focus a bit on that first excerpt; 3 questions, and an experiential observation:

          [1] “asked” …?
          [2] “not clear that the witnesses will testify” …?
          [3] wtf?

          Properly-motivated able prosecutors do not pursue deals for the testimony of those they are really after.

    • lllphd says:

      hm. this makes so much sense. and it makes sense of why holder picked him to work on the broader picture; already a foot in that door, but in more than the mere ‘practical’ sense of this; more ‘ya gotta know he’s gotten real close to some very sticky stuff, so let’s see where else this might lead.

      more than just practical, though it also saves a boatload of catchup time.

      • lllphd says:

        just to follow up on my last point that it saves catchup time:

        if holder’s MO is to stall and obfuscate, then that little move of efficiency makes no sense.

        slightly encouraging, at least.

  10. Mary says:

    Durham has been officially investigating the torture itself(as opposed to the torture tape destruction) for just four days.

    You know, in the flurry of things that have gone up, I missed the mandate he was given. Has there been anything on the text of his delegation? The naming is just one part – it doesn’t really get the ball rolling on investigating until you have his delegation (bc his “jurisdiction” in essence to operate springs from what is delegated to him, not his naming – it’s kind of like saying I’m making Mr. Magoo Trustee of my Trust, but until you put designate a corpus for that trust he can’t do anything).

    That’s going to be an important delegation.

    • bmaz says:

      I have not seen the actual wording. My understanding is that it really will likely involve consideration of ten subjects that were previously submitted in the larger group as a result of Helgerson’s report and that is the expected scope. I bet they are not real kean on making public the actual wording.

      • Mary says:

        I bet they are not real kean on making public the actual wording.

        Oh, I absolutely bet that – and I bet MSM won’t push to get a copy of or information on the actual text of the delegation, but I’d like to know it and I’ll hope that something bumps it out there. For that matter, I’m not sure I ever saw (which doesn’t mean it wasn’t put out) the text of the delegation to him to pursue the destroyed torture tapes. BTW – the IG report kind of indicates that there was some tape destroyed even back then, doesn’t it? Isn’t that the implication on the reference to 20 hours or so of missing tapes?

        And according to Tenet’s directives, there should be a whole damn lot of cables – I have no idea how those things work, but it would be interesting to know what was sent when the detainee was frozen to death in Afghanistan.

        • whyknot says:

          Absolutely the cables back and forth with the Office of Special Plans are among the many I want to brace for and read. The country must endure this investigation like it or not. FDL (and others) are doing a great service to this nation. I’m not being hyperbolic, personally I really feel this way. Pressure is needed to confront the awful. Pressure is also needed to do the politically inexpedient. FDL is answering both calls.

    • bobschacht says:

      Mary,
      IIRC, Durham’s new mandate was a very cautious commence to get ready to begin. That is, he was charged with investigating whether prosecution might be warranted, but was not asked to bring charges if appropriate.

      Given that, opening the GJ is even more intriguing, since that goes considerably beyond the commence to get ready to begin mandate. Consequently, ISTM that the GJ is framed primarily wrt the destruction of the tapes, but as others have indicated, they can ask other questions, too. Where all that might lead is a very interesting question.

      Bob from HI in AZ

      • Mary says:

        I’m probably not being super clear about what I’m getting at, since I often seemed to not be clear enough on this in the Plame investigations as well, so let me expand it a bit.

        Prosecutors are a bit like courts in that where they can act has limitations. So announcing that you are going to have someone work on “CIA torture” is kind of like announcing you are appointing Judge Jo Schmo to the FISCt, before the FISA legislation is out. It’s fine and good, but it doesn’t really empower action or transfer case authority.

        Since Durham is operating outside of where he has authority, he has to receive a delegation of that authority and it under some general rules of agency, that delegation is going to have to have some relative specificity. It’s like telling someone they are going to be on a secret court that is going to handle secret, non-adversarial, applications for wiretaps that are not based on constitutional probable cause to believe that the person tapped is involved in a crime. That’s good, but it doesn’t empower them to actually start handing out those warrants – the legislation setting up the FISCt did that, and Holder’s mandate/delegation to Durham will/has empowered Durham, but only empowered him within the bounds of the delegation.

        Empowering, though, means that he can do things like issue subpeonas, seize records (start applying for wiretaps *g*) attempt to get indictments, charges, etc.

        While still “unempowered” he can collect information given to him that a) he did not have to use process to compel, or b) that was so tied in with something that he is already investigating that he could legitimately get it by process, even though it gives him info that exceeds what he can charge on – for example, like Fitzgerald getting the cover story info in Libby on Libby revealing national security information from the PDBs to Judy Miller being a matter that he couldn’t have charged under his mandate, even though it was info that he could legitimately get or compel in pursuing his mandate).

        fwiw

    • emptywheel says:

      LOL. One of Mary’s (important) pet issues.

      Here’s what Holder said about it in his announcement:

      Assistant United States Attorney John Durham was appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. During the course of that investigation, Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand. Accordingly, I have decided to expand his mandate to encompass this related review.

  11. tjbs says:

    Was the taping contracted out also?

    This is like the old outer limits show “the truth is out there” as in not every copy of every tape is gone.

    • emptywheel says:

      Remember the tapes were “discovered” when some other tapes were discovered, which might ahve been a contracting issue or might have been at a remote site.

  12. Gitcheegumee says:

    This may be of interest, for the sake of the record-a little background material for context.

    TORTURE TAPES WEREN’T THE ONLY THINGS ERASED BY THE WHITE HOUSE
    Posted by leveymg in General Discussion
    Wed Dec 12th 2007, 11:51 AM

    Newsweek reports today that the White House pressured the CIA to erase the tapes recording the interrogations of two key al-Qaeda figures, Abu Zubaydah and Abd al-Rahom al-Nashiri. Harriet Miers, President Bush’s personal lawyer, was the principal White House negotiator with the CIA on how to manage emerging public awareness of torture during these interrogations.

    ***

    While initial media accounts reported Miers advised against destructions several hundred hours of videotape records, a Newsweek article now indicates that the tapes destruction was a “political issue” decided outside the Agency by someone “directly representing” Bush. This resulted in nearly two years of drawn-out negotiations with the White House, finally carried out after the departure of CIA Director George Tenet under Bush’s CIA appointee, Porter Goss: http://www.newsweek.com/id/76574/output/pr…

    A senior CIA lawyer, John Rizzo, now the agency’s acting general counsel, was also conducting discussions on what to do with the tapes with White House lawyer Harriet Miers. Two sources said that Rizzo also discussed the issue with officials at the Justice Department, which had issued classified guidelines outlining how the CIA’s interrogation program should operate.

    The reason CIA officials involved the White House and Justice Department in discussions about the disposition of the tapes was that CIA officials viewed the CIA’s terrorist interrogation and detention program—including the use of “enhanced” interrogation techniques—as having been imposed on the agency by the White House.

    “It was a political issue,” said the former official, and therefore CIA officials believed that the decision as to what to do with the tapes should be made at a political level, by Miers—a former personal lawyer to President Bush and later White House staff secretary and counsel—or someone else directly representing the president.~~~~~~~~~~~~~~~~~

    leveymg archives,Democratic Underground

    • bmaz says:

      Why do you persist in giving us “background” from Mark Levey and DU that we covered and wrote on before, concurrently at the worst, he did? Marcy and the folks here have been doing this a long time; citing other people that probably cribbed off her, and to a lesser extent our, stuff as definitive background is kind of insulting.

      • klynn says:

        Actually bmaz, there is a point to be made there. When I bring new friend over here, they feel overwhelmed by all the information and a bit lost. I often have to walk them “back” to past posts on the subject to help them understand the context of a current post. If I do not, they often state, “This may make sense to you but not to me.”

        It might not be a bad idea to make sure people go to the timelines and click to see related material.

        • bmaz says:

          Gee, people seemed to get by just fine before Gitcheegummee started the relentless wholesale importation of four plus inch long quotes from DU and other sources that tie the moderators in fits because of fair use and other concerns.

          • klynn says:

            Actually, this was a concern I faced with friends way before the named commentor. My comment is not an evaluation on the commentor. Just shared a concern I face with new visitors to the blog and my thought was triggered by reading your response to him.

          • DWBartoo says:

            So, there are some posts that you do not remember, bmaz?

            Or do not care to remember?

            Just like me (or ANYONE ELSE, for that matter) you, or even EW, may become tired and cranky.

            Circumspection would become all of us in those moments, which we inevitably regret (even if we won’t or can’t admit that to anyone else).

            Even the “best” among us are capable of error, and not lessened by the acceptance of that truth.

            The best, being the best, must be kindly toward those of us who are not so far along in the journey.

            I trust that is not too much to ask (or hope for)?

            For all of your grumpiness, bmaz, not in spite of it, you, sir, are among the best.

        • fatster says:

          Might it be helpful to have some general guidelines (hopefully brief) available for new-comers who wish to participate here? Sometimes, people get thumped, it seems, simply because they wish to participate but do not know what is expected of them. Just a suggestion.

          • bmaz says:

            So very few people have any issue that it is really not necessary. This site has been blessed with pretty much incredible commenters and regular participants. For my part, I don’t think there should be hard and fast rules or guidelines, it is an open forum that encourages thought. Should you find moderators having to edit your work or a directed request being made (which is actually quite rare all things considered), then take that into consideration; otherwise open participation and thought, even dissent, is encouraged.

        • lllphd says:

          and maybe warn visitors of how pricky (and – sorry, bmaz) snobbish bmaz can be sometimes.

          off-putting, anyway, at his worst.

          • lllphd says:

            whoops! edit cops!

            bmaz, that should have been ‘prickLy’.

            color me embarrassed that my insult went beyond its intended level; apologies for that.

      • bobschacht says:

        bmaz,
        It is impossible for my small mind to keep track of these things as well as you and EW do. Consequently, I was interested in the rehash @ 31. Sometimes a review of old news in a new context is helpful and relevant. It seems to point to the extent to which Miers was put in charge of Operation Coverup, and I do not personally recall treatment of this issue here at the wheelhouse (my memory is probably defective.) So IMHO, I think you were too harsh in your response.

        However, tying ” the moderators in fits because of fair use and other concerns” is a relevant issue that we need to be sensitive about, and I do appreciate all that our moderators do to keep this house in order.

        Bob from HI in AZ

      • druidity36 says:

        I’m sorry bmaz… but i appreciate the extra background stuff. I’ve been around here for a year or so and i still muddle my way through a lot. Having added input in thread is helpful to me.

        Maybe hot links to prior related stories at FDL at the end of each post to keep it in house?

      • lllphd says:

        bmaz, i know this is two years old (only realized it after my response to gitchee), but i personally found it edifying as a reminder of especially the reason why the cia demanded WH involvement on the cleanup/coverup, as well.

    • lllphd says:

      hm, this is pretty delicious. isikoff again.

      someone help me out here; was i sleeping? did i miss something? why the hell is rizzo still gen’l counsel at cia??

        • lllphd says:

          LOL! well, bmaz says he’s gone, but only a month, so they’ll have to track him down. should be ez, given their bidness.

        • lllphd says:

          ah; thanks so much. missed that departure, and yes, relieved like you, but also sure gotta wonder why he was there that long.

      • Gitcheegumee says:

        but i personally found it edifying as a reminder of especially the reason why the cia demanded WH involvement on the cleanup/coverup, as well.(lllphd)

        That’s WHY I posted it. For that VERY reason.

        Thank you for noticing.

        • lllphd says:

          good, i got that.

          you can’t let bmaz get to ya; he’s a bit, um, high-strung. heart’s in the right place, but he sometimes forgets where that is.

          hope you stick around anyway.

  13. oldtree says:

    I am one who comments, and often comments wildly being the DFH that I am. But this site has the most educated and hard working people in news gathering there is in our country. You will find that their work is that which the main stream news uses to try to create a story that resembles the truth. This is where your media find out what is going on.
    You will not find any AP content harmed by thinking investigative reporters at the lake. These investigators use real sources and comment on the facts, without leaving important parts out. You can’t work with the AP if you want truth, so that is why the newspapers and MSM in our country pay a fee for garbage. It’s easy. They no longer even have investigative journalists on their staff. They get made up news events from the AP, and they can find truth @ emptywheel’s place.

  14. Gitcheegumee says:

    bmaz,WHY do you ASSume EVERY one knows the background on these issues,OR that they know EVERY post that has EVER been written about these subjects by you or Ms. Wheeler?

    • bmaz says:

      What makes you assume the readers here do not? When they don’t, they can either look it up or ask, not every post needs wholesale infusion of some database from another source that was probably cribbed from here to start with. That is the point.

      • DWBartoo says:

        So long as it, “the point”, does not drive away potentially important contributors, who might not have intended to offend.

        Would that a proper concern, bmaz?

        DW

  15. Hugh says:

    It is not clear that the witnesses will testify

    This seems wrong or misstated to me. They testify or they face contempt. However when they testify, they are free to invoke their 5th Amendment protections which is ironic in that their torture activities violated the 5th Amendment protections of their victims as well as 6th, 8th, and 14th Amendment rights.

    • bmaz says:

      Quite right; I took that to mean they might invoke (which is, without more info, certainly what I would recommend unless immunity were provided).

    • timbo says:

      They can’t plead the 5th if they are asked about subjects which they have no knowledge…nor can they plead the 5th with regard to any crimes committed by another person which does not directly implicate themselves. There are some gray areas there but that’s the gist of it. If answering a question does not “tend” to incriminate the person testifying they cannot plead the 5th and will face contempt charges if the presiding judge believes that they are obstructing testimony to protect folks other than the person who is pleading the 5th.

      Further, not everyone will plead the 5th simply because their answers might tend to incriminate themselves. Many abusive folks and people who have god-complexes believe that it is ‘interesting’ to talk about what they have done and they, unrepentantly are proud of it and believe that they are/were justified in their actions in some way, feeling no qualms about spilling their guts to a grand jury. To be sure, those are rare folks but they certainly do exist, especially in intelligence contractor/mercenary land.

      • perris says:

        people who have god-complexes believe that it is ‘interesting’ to talk about what they have done and they, unrepentantly are proud of it and believe that they are/were justified in their actions in some way, feeling no qualms about spilling their guts to a grand jury. To be sure, those are rare folks but they certainly do exist, especially in intelligence contractor/mercenary land

        here’s an interesting perspective;

        just about everyone who’s done something wrong has justified that wrong in their own head, they have found a reason to make it right

        or they repent to themselves and do what it takes to give themselvers peace

        or they are sociopaths!

        so I don’t think the indidual you are talking about is “rare”, rather I think that individual is typical

        • timbo says:

          Well, there are also the ethically challenged who do know that what they did has legal consequences and they try to hide what it is that they did. There is a lot of that type of person involved in obstruction investigations, naturally.

  16. Gitcheegumee says:

    ” probably cribbed from here to start with. That is the point.”

    No,that’s YOUR point of view.

    What arrogance to believe that nobody else is capable of analysis.

    To hear you tell it, nothing exists beyond here.

    I can assure you that levey does not require cribbing from anyone.

    I hope when you are hired for your legal services that you represent your client,instead of representing yourself, as you unfailingly do, here.

    I have no doubt there would be far more $$ donations to this site,if you were to cease and desist your ad hominym remarks in general,and about other truthseekers such as levey,in particular.

    • bmaz says:

      It is not ad hominem (or hominym as you spell it), you have earned it every step of the way. I have politely and repeatedly asked you, and make no mistake this is about YOU not others, to chill on the relentless long postings of outside material in huge column inches instead of simply giving a short couple of sentences and link. Yet you have taken it upon yourself to refuse those suggestions and waste my time and that of our moderators to constantly have to police your fucking belligerent and relentless continuance of that which you have been previously and repeatedly warned about. If you cannot play within our very few rules and norms, go somewhere else. This is completely about you Gitcheegummee, and is not a comment on any other commenter. What’s it gonna be big boy?

  17. Ann in AZ says:

    Blue Texan’s regularly scheduled post is up and ready on the front page: “Joe Scarborough & Peggy Noonan: Americans Secretly Yearning for Republican-Controlled Congress”

  18. Twain says:

    Have to agree with bmaz, at least partly, on this. Some of the comments are way too long and need to be broken up into biteable pieces. When they are too long I tend to just skip them.

  19. Gitcheegumee says:

    bmaz, YOU ALWAYS make yourself the center of attention,by whatever means possible.It is most unbecoming.

    It is a disservice to the yeoman’s work of Ms.Wheeler, and to all newcomers who visit here in the spirit of earnestness and honesty.

    No doubt many more would come and participate,but refrain from doing so because of your uncharitable,arrogant attitude.

    You have a personal dislikke for me ever since I referred to your demeanor as pompous.

    I was correct then and I’m correct now.

    However, YOU are wrong once again.

    I’m not a big boy,I’m a big girl.

    And your also wrong on expecting the sizeable contribution I HAD planned to make.

    Lets see that’s TWO people in the past week who have decided to put their money elsewhere,now,thanks to you.

    • bmaz says:

      Sorry about getting your sex wrong, I did not know. That aside, all I care about is that you respect the relatively few norms here. The problem is that you have taken it upon yourself to flaunt them and make your own rules, and be belligerent when basic requests have been made. It is not about me, and it is not about other commenters, it is about YOU and your relentless and arrogant intransigence. And here you are still making a scene. Grow up, act responsibly and I will leave you alone. That is all I ask. Fail to and another plan will be devised. It is not too much to ask.

      • lllphd says:

        bmaz, i don’t want to count the number of comments that have been devoted to this kerfuffle that i have to say is more about how rude and snotty you tend to be when folks don’t color within YOUR lines. unbecoming does not even come close to describing it. nor does off-putting.

        why YOU persist in cussing people out and belittling them is beyond me. it exposes more about your shortcomings than it does theirs, and most definitely detracts from the business at hand here, and certainly from the grace and good work ew brings to the table.

        you may be correct in your assessments of when the rules are not perfectly adhered to, but your manner and tone in presenting said assessments is just horrible.

        i have no doubt yo momma taught you better. dude.

  20. Gitcheegumee says:

    I suspect I was already grown up before you were even born.

    And,once again, these are YOUR subjective interpretations,not my intents.

    • bobschacht says:

      Alright, Gitcheegumee, enough already.
      bmaz has earned his stripes around here, and you haven’t.
      Act your age, and be nice. I was interested in your reposting of the Miers info, but I grow tired of your grandstanding.

      Bob from HI in AZ

  21. emptywheel says:

    bmaz, Gitchee

    This is unproductive.

    I found the comment itself not only unproductive but deceptive bc it was an early attempt to throw attention toward–exclusively–Miers and away from others in the WH. Within days of this story it became clear that there were briefings in the White House including Addington and Gonzales. So while it’s good to remember that Miers was involved, it’s bad to take a Mike Iski story based on motivated leaks and from that conclude that Miers is the focus of this–there’s abundant reason to believe that’s not true.

    That said, it’d be helpful to focus comment abotu unhelpful interjections on the interjection itself.

    • bobschacht says:

      EW,
      Thanks for taking the time to remind us of where the Miers issue stands.

      Your output has been so prolific that newcomers (and some of us old folks) would benefit from a sidebar like the timelines box with links to some of your main themes. I have in mind that the links would consist of advanced searches with the right keywords. You shouldn’t do this yourself, but perhaps one of the regulars here who knows how to use the advanced search feature well could set it up? I’d volunteer, but I’m teaching a new course with only one week of prep and trying to buy a house and move at the same time.

      In any case, kudos to you and bmaz for managing such an informative Wheel House.

      Bob from Hi in AZ

  22. timr says:

    Torture and the CIA have a very long history. I personally watched the CIA torture VC/NVA back in 1970 in Vietnam, Laos and Cambodia-French Indochina. I saw more incidents in Korea in the late 70s and early 80s. There are many anecdotes of american military units using torture durning WWII to get information quickly This is something that has gone on for years and will continue no matter what laws are passed. All we can really hope is that the idea of institutional torture, government approved, is brought to a halt

    • perris says:

      I’m not buying that at all, we have stories of surrenders bacause they knew we did not torture and if it happened it was not policiy it was rogue

      I also have relatives who’ve been in the services you mention and to a person they’ve said teh policies were never sanctioned

      of course there are rogue elements but as a policy it cannot be accepted and if the authorities ordered it they must be tried

      if the authorities did not order it then those who comitted the crime must be tried as well, as a matter of fact, they must be tried either way

      in any event, it cannot become part of your policy

  23. ondelette says:

    I just wonder if the grand jury investigations aren’t related to the cases that were refered to DoJ before and not prosecuted. There is clearly material in the redacted parts of the CIA-OIG document that is redacted because it might affect court room outcomes, not cause embarrassment or affect national security. If some of it is related to those previous referrals, and there is new stuff (from Durham’s nested set mandate or from elsewhere — e.g. the Blackwater investigation), they might be ready to look at contractors very quickly, mightn’t they? I say this not being too clear about when a prosecutor/investigator is allowed to empanel a grand jury.

    • bmaz says:

      To the best of my understanding, that is exactly what Durham is “reviewing” and the number of subjects/putative targets is 10-12.

      • ondelette says:

        There are more than those cases involved in the redactions. Nobody has said anything about whether or not they are being looked into, but presumably the material in the redactions was among the material that convinced Eric Holder to act. I say there is more because I am almost certain that material pertinent to the Siddiqui case is in some of the redactions (I can point to specifically two or three places where I believe her name is one of the things behind the black ink), along with other stuff, so that would be an example of a redaction that affects court cases but not among the 10-12 (unless her case is among the abuse cases, but that would be quite the furor, given that they are proceeding with her prosecution).

        I’m aware that those prosecutions were almost exactly what was mandated to be reviewed, but doesn’t Mr. Durham have an obligation to follow the facts if he perceives that there was law breaking? And don’t any pending cases that perceive that there is exculpatory material in any of the known but redacted or unreleased documents have the right to demand their disclosure? Can any parties with standing sue to be party to what he turns up in grand jury testimony? I know it’s protected from disclosure to the public, but what if it ends up containing material pertinent to ongoing cases before the Federal Court, especially if it pertains to treatment of a defendant, treatment of a plaintiff in a habeas plea, or to the legality of evidence being presented in other cases?

        If someone else uncovers something, has Mr. Holder opened up a cachement into which he can add more material and investigation as the drip drip drip progresses, or is he putting a lid on it, do you think? Emptywheel’s conjectures (and mine, I might add, and Amrit Singh’s when she talked to Glenn Greenwald) all seem to point to this investigation being unable to stop its own expansion.

        (sorry for always harping on the Aafia Siddiqui case, but I have more material on it than I have on others)

        • bmaz says:

          Agree there is more basis there; I am just reporting what my understanding is (and, hey, it isn’t like I have any pipeline to the DOJ or anything); but I do believe it is the best state of knowledge publicly discernible at this point. As to what the mandate would be understood to imply, I think Mary @ 104 states it pretty well. would that prevent Holder from expanding? No, but I really do not see him having the motivation, desire or cover from above to do so. And I do not think he will. I do not agree with Amrit Singh, if they want to restrict this, it will be restricted. As always, I sincerely hope I am wrong. Keep talking about Afia Siddiqui, she deserves to be kept in the conversation.

  24. tjfxh says:

    Mandates to prosecutors are meaningless in that once a prosecutor is assigned to investigate a possible crime, he or she must follow the evidence wherever it leads. If the federal special prosecutor is a person of integrity, no one is above the law.

    • bmaz says:

      Heh, well that flies in the face of how the DOJ is structured and actually works from my experience in dealing with them. And there are absolutely jurisdictional and geographical mandates imposed on prosecutor’s authority and discretion every day.

    • Stephen says:

      I was hoping to get an opinion or clarification on your point. If a judge is given a mandate and he decides to play eleveth dimensional chess to seek the truth, can he be reined in by the AG, ( Holder ), on the fly. Can proceedings be arrested once initiated.

      • Mary says:

        Right now, Durham is, in essence, working on a project for Holder. It is not a project that he has power to work on, but for what power Holder gives him. Durham is not working under power that he has as a prosecutor in the USAttys office in Mass – – he is working under power loaned to him from the AG.

        I kind of beat this to death back during the Plame investigations when people were lining up all kinds of thing they were hoping Fitzgerald would take on under his appointment, without realizing that he could not have done those things under his appointment.

        Holder has the power, for any reason or no reason (but not for an illegal reason), to revoke, modify or amend, at any time or from time to time, any prosecutorial power he delegates to Durham – and that is after anyone figures out exactly what prosecutorial power he HAS delegated, if they can, because there is no requirement that the delegation be made public per se, although it pretty much needs to be in this setting so the various courts and third party actors of evidentiary agents know what’s going on.

        Also, under already existing DOJ rules, Durham may have to go to Main Justice for approvals to do certain things (remember Lam having to get her subpoena for Foggo authorized out of Main Justice?). This was left kind of unresolved in the argument in the Libby case re: Fitzgerald going to Margolis (his delegated supervisor) before something (I forget, but I think it was filing charges ??) Even though Fitzgerald did take the action to Margolis first, and so it wasn’t really determinative of anything in that case, for some reason Fitzgerald spent oral argument time arguing that he would not have “had” to go to Margolis first (Judge Walton didn’t seem to buy it IMO).

        Again, IIRC, for the Durham torture tapes investigation, he was not really being given any “special prosecutor” per se status, so he had even less autonomy than Fitzgerald did in the Plame case.

        And since both Fitzgerald and Durham are/were “in house” appointment at DOJ, the outside special prosecutor regulations don’t apply to them. Under those regulations, an “outside” (not from DOJ) special prosecutor can also have his mandates changed and be fired and have the AG overrule him on charging and subpoena etc. decisions, but the AG cannot do those things in secret for an outside special prosecutor. While with Durham or Fitzgerald, the AG or acting AG could modify their appointments and tell them to not talk about it, with an outside prosecutor there has to be a report to Congress on the bigger disagreements.

        • bmaz says:

          Again, IIRC, for the Durham torture tapes investigation, he was not really being given any “special prosecutor” per se status, so he had even less autonomy than Fitzgerald did in the Plame case.

          Correct. Durham is actually an AUSA in Connecticut, not Massachusetts.

        • lllphd says:

          mary, this is, as ever, incisive. but i had thought comey worded his appointment of fitz delegated him “all the power of the AG.” are you saying this was, in fact, qualified?

          • Mary says:

            yep.

            He was limited to the exact matters on which Ashcroft recused (so only the Plame leak specifically, or obstruction specifically related to that leak) and his appointment was and remained subject to being modified, amended, revoked etc. at all times. Fitzgerald himself put that in his pleadings and Judge Walton ruled to that effect as well.

            I can’t find a fast link to Walton’s original order, but here’s a link to a memorandum opinion issued in connection with Libby’s appeal that discusses the earlier memorandum and findings

            Specifically,the Court, applying the Morrison factors, found that (1) Fitzgerald was removable from the position of Special Counsel by the Acting Attorney General not merely for good cause, but for any reason at any time, see id. at 42 (stating that “it is axiomatic that, at any time, the Deputy Attorney General who delegated to the Special Counsel his authority can revoke that delegation”)(citations omitted); (2) Fitzgerald’s duties as Special Counsel “are specifically limited to the investigation and prosecution of certain federal crimes arising out of [a particular set of operativefacts],” id. at 44, during which he “does not have the authority to ignore substantive orprocedural Department of Justice policies and regulations,” id.; (3) the boundaries of the Special Counsel’s jurisdiction are described and limited by the Acting Attorney General’s express delegation of authority, id. at 44-45; see also id. at 45 n. 17 (noting that “[t]he Deputy AttorneyGeneral… set forth explicit parameters in which the Special Counsel could operate”); and (4)Fitzgerald’s tenure is limited in that his authority expires “[a]s soon as [he] has completed hisassigned task,” id. at 45; see also id. (concluding that the Special Counsel “has no ongoing responsibilities that extend beyond the accomplishment of the mission that [he] was appointed for and authorized to undertake”) (quoting Morrison, 487 U.S. at 672) (internal quotation marks,bracketing, and ellipsis omitted).

            emph added.

            This was the position that Fitzgerald himself took before the court.

            Here is a link to some responses provided by Fitzgerald to Conyers after the Libby case and pursuant to some Congressional questions for the record, in part on how Fitzgerald’s role differed from an outside special counsel:

            Second, my jurisdiction as Special Counsel was limited to the subject matter in the letters memorializing the delegation, and I had no authority as Special Counsel to expand my jurisdiction or continue beyond the completion of the assigned investigation

            Fourth, while the Acting Attorney General’s delegation to me intended that as Special Counsel I not be subject to ongoing supervision or required to make reports to the Acting Attorney General, that delegation could be rescinded or modified at any time at the will of the Acting Attorney General.

            Finally, as an officer of the Department of Justice handling the Special Counsel matter, I was required to abide by the rule of grand jury secrecy in Federal Rule of Criminal Procedure 6 and was provided no special statutory authority to issue a public report concerning my investigation.

            etc.

            I’ve always thought what I’m going to quote next, from those responses, was almost an “ask” from Fitzgerald for Congress to check on what did happen to his delegation:

            the delegation of greater authority to me was for the purpose of promoting the perception of the independence of the investigation, and in any event the delegation was at all times subject to revocation or modification.

            emph added

            As often as the Libby pleading hit it, his oral argument on what he should or shouldn’t have been required to do vis a vis Margolis, his responses to Congress hit it, I’d just like to think that someone with authority actually checked into whether or not his mandate ever did change and for that matter, who ended up as acting AG through the end. Just like I’d like to see the letter that got sent to Luskin – I hate the loose ends. And I have to admit, in the threads Breuer, that one of the reasons I kind of push on the theory that they need an affidavit from someone who was not barred from involvement with the investigation is bc I’d like to see the record completed on whether the delegation stayed with Margolis or went to McNulty when he came in.

            But that’s way too much sidetracking on a pet peeve of mine.

            • lllphd says:

              sidetracking, maybe, but intriguing nonetheless.

              thanks so much for the detail. fascinating how granular all the legal mumbo jumbo can get. you make it much easier to grasp. (at least i think i grasp this now.)

    • lllphd says:

      god, i hope this is the ethical guideline. it sure is in the medical field. otherwise, it’s sorta like ‘i don’t do windows’ even if the crimes/diseases i see are completely blocking my view.

    • Mary says:

      The “a possible crime” is the issue and the mandate aspect. If he’s delegated the authority to investigate whether or not field operative exceeded DOJ memos in such a way as to constitute torture, that doesn’t give him upchain authority and it doesn’t give authority as to torture within the four corners of the documents,or to the spin offs of obstruction and conspiracy etc.

      • LabDancer says:

        Do you think there’s some meaning in the contrast between the public flaunting of Fitzgerald’s mandate & the mystery of Durham’s?

        The former’s seem to me to have expressed the concerns of the granter-Comey-at his AG’s vulnerability [on a number of levels] & his own status being ephemeral, with the grantee running with that impression to suggest [even to appear to insist on] potentially important technical refinements, all seeming to place the grantee on something like the footing of Archibald Cox.

        But there’s no basis for thinking Holder would share anything like those Comey concerns; if anything, the opposite, or something like it. The counterpart here to Fitzgerald taking the point on the CIA leak because he had to, in essence agreeing he was better placed to preserve the investigation, would seem to be a newly-enabled AG with at least an implied mandate to flex muscles sufficient to suggest independence, not the technical guy.

        [Plus it’s consistent with the contrast in styles, or at least rhetoric about styles, between the Bad & the Obad.]

        If I was in Fitzgerald’s position in 2004, I’d want the transparency in the mandate he got, or something like it, to get the job done; and if I were in Durham’s shoes now, wanting to get the job done, I’d want the lack of it in the one he’s got.

        • Rayne says:

          I think you’ve hit on it exactly in your last graf. It suits Durhams’ investigation for his authorization to appear fuzzy since the people he will be questioning will also be using inherent fuzziness of their roles and their own authorizations to hide their culpability.

          It suited Comey for Fitzgerald’s authorization to be absolutely transparent, so that the persons Fitz was investigating could not continue to undermine Fitz’ authority, thereby deepening the obsfucation and obstruction already underway.

          We should be asking for Durhams’ letter of authorization by FOIA, but I suspect the people who are most concerned may already have it. It will surface either from DOJ or other sources at a time when events become critical for some entity; I’d almost rather wait to see what drives the document to the surface, just so we can hunt it to ground.

        • Mary says:

          It’s a frolic and detour from this thread in many places, but here’s my answer and it’s just “my” answer with my opinions, based on less love and trust in Comey than some, so not unbiased and fwiw.

          Here’s what Comey was looking at. He gets into his slot while there is huge outcry over the leak case and for once, even some Republicans are feeling politically pressured to take action. I always toss this out, but even Joe Lieberman was calling for the revival of the Independent Counsel statute and appointment of an Independent Counsel. Those who thought that couldn’t be done quickly enough or that it had other problems were pushing for a BLOODY Congressional investigation – one to leave bodies even if it never got convictions. And here’s Comey, who sees the AG a a big part of his “clientele” in his slot as DAG, and he vinds out that the AG has been pulling fast ones, getting briefings on what DOJ is doing about Ashcroft’s pal/fundraiser etc. Rove.

          I’m also sure that he gets vibes and input right away that things walk back to OVP and WH – with WH at least something that is not only another big part of his clientel, but the guy who just got him his job. And Bush has all kinds of meetings with Ashcroft who is getting all kinds of FBI briefings on Rove, etc. Damn that’s all gonna hurt like hell for both of them when it comes out in a Congressional investigation.

          So imo Comey wasn’t really putting together the best deal he could to make sure that there was a very strong and very protected prosecutor, turned loose with a loaded gun and a mission. IMO at the time (which is why I was spitting mad when Fitzgerald was originally announced) the goal was to make sure there wasn’t a Congressional investigation and/or a revival of Independent Counsel laws (which would have really hurt back then). IF you look at it through that lens, which is my biased lens, then it’s pretty ez to explain the prounouncements of the mandate and the efforts to make it sound as “big” and as “independent” as possible. I would pretty much lay money that Comey cooked the Dem acceptance of the in-house appointment through Schumer and to get the acceptance, instead of a Congressional investigation or Congressional food fight on an independent counsel statute, he had to be pretty open and transparent.

          Given a goals of keeping as much control in DOJ as possible to protect Ashcroft and Bush, while simultaneously making it seem that there really was going to be an “independent” investigation and needing to appease Dems and rein them in, we got the fairly public mandate to Fitzgerald which sounded really good on the surface (within the narrow mandate, it was a broad conveyance of power, but the mandate was narrow; Main Justice could still override Fitzgerald via whoever was the “acting AG” for his matter and unlike a situation where he was an outside special counsel those overrides would not need to be informed to Congress; etc.)

          Which isn’t to say that Comey didn’t try to look after Fitzgerald when he left (with the delegation to Margolis – which has never really been traced through past that point), but still, Fitzgerald both in the Libby litigation and is correspondence after with Congress made a point of acknowledging that his acting AG could change, modify, revoke etc. his mandate at any time.

          I think the ball hiding on Durham has a lot of aspects, not the least of which is that Holder would like as much “out there” as possible before he nails down the mandate, with him likely hoping to have some kind of public support based on the kinds of revelations being made. That’s naive and he and Obama have lost control of the messaging on that front IMO, but I think it is an aspect.

          If I were more hopeful and less cynical, I’d also hope that he would be using the “preliminary investigation” aspect to buy some time in the assumption/knowledge that the preliminary investigation will show all kinds of issues, including impacts on info that might not have been provided to Congress in violation of law, to the point where he can justify implementing new or special regs for Durhams appointment (the way they did in Watergate) which might protect and expand Durham’s powers and abilities to provide info to Congress and insulate him if Obama is a one term President. But regs are only regs – still, they make it all much more difficult to dislodge someone.

          All fwiw and through my own filter.

          • bmaz says:

            I think the ball hiding on Durham has a lot of aspects, not the least of which is that Holder would like as much “out there” as possible before he nails down the mandate, with him likely hoping to have some kind of public support based on the kinds of revelations being made. That’s naive and he and Obama have lost control of the messaging on that front IMO, but I think it is an aspect.

            Isn’t that the thing though? As with so much, it is not a function of public clamoring; it is instead a duty even in the face of public clamoring for the opposite. Trying to craft opinion and create a wave of either insider or public pressure is not the mark; following the law and upholding its rule is. Durham appears to be a tool in a political passion play, but that is not how this should be.

            • MartyDidier says:

              Excellant reply Bmaz…

              In many cases involving this mess and it’s not just in the Federal area, it’s scattered throughout every function in our Nation in that people in position of power are not doing what they should be doing. We seem preoccupied with trying to make something out of thin air, hoping to side step almost completely that which should be our focus. This is almost like a form of “Mind Control”.

              I want to comment that while in that family I keep talking about, they often laughed at the stories learned of those involved who were playing the games mentioned in your reply. Frankly, this behvior can also be found in with the gangs who pulled pranks during the election period. The pranks were, by design, using simple schemes hoping to play another level of mind games on their victims. I’ve been a victim of this for more than a decade ever since leaving the family. It is successful and if taken to an extreme can destroy anyone.

              In your case, getting back to following the rule of law when it’s those involved in making the rules and who should know about the law has proven not to be simple. There doesn’t appear to be any real muscle way of making things change for the good. It’s as when it surfaces does it get attention and the amount of attention is always in question because there are opposing efforts to stop it from going to a higher level that will end it. Part of it in Illinois that I know about seems to come from how wide spread the corruption is. When one person is being attacked and cries for reform surface, we enter into another round of game playing trying to stop reform. Even the Newspapers are involved with trying to modify the public attitude to accept something less than completel truth. Somehow, it’ll be necessary to establish a complete truth level setup as a goal to enable those who want truth to strive for. Settling for less doesn’t cut it any more.
              Marty Didier
              Northbrook, IL

          • LabDancer says:

            I’m with your take on Holder with Durham. Maybe I drew the contrast too starkly, but I demure on the notion of how far Comey could have gone.

            As it was, the impression I have is Comey having succeeded in enlisting Fitzgerald into a strategy of jointly employing the respective deftness of each with the DOJ internal guidelines & regulations, on the assumption they could achieve thereby something beyond the capacity of Bush’s trustees, brainy & scatterbrainy, to easily unravel, & also to impress the Bushies of incalculable risks from pulling the plug on the process.

            I would allow for something closer to where you take Comey to task, in that such was the inartfulness of the WH crew of legal beaglets that he very likely could have led the process to further empower the vehicle; but I don’t see how he could have had sufficient comfort in going that far with the line of assumption described above; plus I consider significant that [1] this happened at the front end of the period over which he assumed some form of acting AG status [which happened what…3 times?], & months before & in any event not after the events culminating in the hospital episode, [2] at the time I imagine he would have treated it as a singular situation in exception to the role he would consider himself confirmed to i.e. ’serving’ whoever was the AG in the running of the department, & been reasonable in that.

            But I certainly wouldn’t go so far as to assume that he somehow felt he’d failed his own standards — emphasis on “his”. His positions on various subjects, then & since, would suffice to show that. Moreover, his brand of conservatism in that role, in my experience at least, hews far closer to the ruler than to the exceptional.

          • tjbs says:

            “As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations”.

            If Holder ’s a smart cookie this could be about a Murder by torture investigation there-by charging the murderers and throwing the whole torture mess right in congress’ lap, exposing their total lack of oversight and control.
            Those torture pictures should have included murder victims also and must be shocking even to the most hardened prosecutors. The word “specific” could be the reported 108 homicides by EIT that no charges were filed on.
            One can still dream can’t ya?

  25. whyknot says:

    As a newby I observe that some of the folks on this site get a bit testy with posters that don’t know the ropes in particular on Friday. Chalk that up to the heaves and throws of a long week and perhaps less tolerance for those that throw a spanner in the conversation right at the weekend? I’ve been guilty and outed for same myself just this month.

    • bmaz says:

      You’re doing fine; no worries mate.

      And as to everybody else, you are all doing great too; relax. As Marcy said, focus on the work here. And thank you all for coming here and blessing this blog with the finest minds anywhere in the blogosphere; it is truly remarkable what is brought to the table each and every day.

      • DWBartoo says:

        bmaz, thank you for this.

        “… the finest minds anywhere in the bolgosphere. It is truly remarkable what is brought to the table each and every day.”

        The whole truth and nothing but the truth.

        Especially for those of us who mostly observe and listen, you offer us a profound educational opportunity.

        My deepest thanks to each and every one of you.

        DW

  26. Mary says:

    Here’s the Holder statement on the appointment of Durham

    http://www.usdoj.gov/ag/speech…..08241.html

    “As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter. I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.

    Assistant United States Attorney John Durham was appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. During the course of that investigation, Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand. Accordingly, I have decided to expand his mandate to encompass this related review. Mr. Durham, who is a career prosecutor with the Department of Justice and who has assembled a strong investigative team of experienced professionals, will recommend to me whether there is sufficient predication for a full investigation into whether the law was violated in connection with the interrogation of certain detainees.

    While that’s not the “real” written delegation, it does show that he’s operating under a pretty limited mandate. Maybe bmaz or lhp or someone more up on Fed Crim law knows what kinds of rules/regs there are re: preliminary investigations. I’d guess there’s something there, but my very fast google didn’t get them.

    • bmaz says:

      A Preliminary Review is a formal process in the Justice Department and is a 30 day process with extensions possible up to a toal of 90 days after which you have to either open it as full investigation or close the case out. At the end of 30 days, you have to write report in order to justify the extension, and if your extension is for less than 60 days, maybe another interim report. Up to a total of 90 days and then it is fish or cut bait.

      The IG report is more thorough than a Preliminary Review would be designed to be. The process itself makes makes little sense; for whatever reason, Holder is using this artifice to string things out without initiating a formal investigation. So, to be clear, this is not yet even a formal investigation, much less a charging situation.

      • lllphd says:

        you know, slow-walking this whole thing makes sense to me.

        for one thing, these matters are diluting media attention for both health insurance reform AND the torture questions. each deserves our total attention, so what to do. the health ins. reform issues will be top billing for at least several weeks, if not months. moreover, i cannot imagine there is enough complete evidence compiled at this point to move forward on the torture questions with confidence of success. i know, we all know, there’s plenty of evidence out there already to ostensibly hang these MFs several times over, but these MFs are slimey, slippery MFs, and the cases need to be compiled as fully and powerfully as possible before moving forward.

        hell, you’re an atty, you know that.

        i guess my point is that perhaps both obama and holder knew from the get-go the torture crimes would be the stickiest wickets they confronted, and they also knew that whole mess would take time. it’s no accident that obama chose to attack health ins. reform first; he wants to take an enormous burden off the vast majority of americans so they’ll be more behind him on this more complicated and volatile stuff.

        i’m with you on the vital importance of this issue; i cannot begin to tell you how grieved i am that we’re even forced to confront this crap. but the health ins. reform stuff is also important to a lot of specific individual americans. it’s my baileywick, the health thang, and lawyering is yours, so we each have our vested interests at play. but obama has to consider all of it, and though i of course can’t lay claim to having a real clue what he’s thinking here, i can sure see how it would be more politically strategic TO MAXIMIZE SUCCESS ON BOTH ISSUES to slow-walk the torture stuff for after health ins. reform is passed.

        just sayin’.

        • bmaz says:

          In my book, and the way I was taught to practice law, it is not a convenience or whim; it is the law. The prosecutor who tailors his upholding and pursuit of the law to political whims, self or superior concerns or public opinion completely dishonors the law and abdicates his oath and position. It is a duty, not a personal choice.

          • lllphd says:

            i clearly did not make myself clear. the political considerations are obama’s; holder must of course pursue his legal responsibilities.

    • bobschacht says:

      Mary,
      Thanks for finding the specific language. This language about a “preliminary review” is what I meant by “getting ready to commence to begin”. And if there were any doubt, Holder’s statement really throws cold water on our hopes:

      I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.

      But now that Grand Jury thing adds an interesting element to the equation…

      Bob in AZ

      • Mary says:

        I just now got the “in AZ” Weren’t you in *the isles* (I always mess up how many i-s and where) before? *g*

        AZ has a lot of loveableness to share. LOL

          • Mary says:

            You say Prikiness, I say Preakness.

            Many years back (80s?) when I was in AZ the newpapers were running stories about some deal where police or ATF or someone had purchased Sagura costumes big enough for a guy to hide in and had cooked up a plan to try to use them to put guys in areas where they thought there was going to be drug activity – it was all very strange – I had to check to make sure I wasn’t reading a book review.

            It makes me think of you guys kind of like this from time to time.

  27. Mary says:

    @ 111
    and if I were in Durham’s shoes now, wanting to get the job done, I’d want the lack of it in the one he’s got

    Except that, as he goes forward, he needs it. It is the basis for Durham’s right to act – to issue subpoenas, require document production, etc. IMO, as per above, the Fitzgerald delegation wasn’t really all that transparent; it gave the very incorrect impression of all kinds of powers being given to Fitzgerald that he just didn’t really have. It was an Iraq/911 delegation that got you thinking one way even though no one precisely ever said exactly that they were that way.

    Durham right now only has a right to make a “preliminary investigation” and I’m not sure (although someone else can maybe produce something on this) what the DOJ regs or SOP or tradition incorporate for such a thing.

    But very interestingly from Holder’s public statement (although possibly not from the written delegation to Durham), there is none of the weird invocations of acting within or without the four corners of the memos. That may be good, bad, both or neither. Hard to say at this point, but the language, “investigation into whether the law was violated in connection with the interrogation” doesn’t reference the memos specifically.

    And this is getting too long already, but it’s good that it doesn’t reference the memos, bc Holder can’t viably structure a delegation IMO that is based on only investigating those guys who didn’t go outside the corners of the memos – for one thing, the memos don’t include the preliminaries, for another, the guys who stayed withinn the four corners (if any) have no real legal grounds to use those memos as reliance memos, so why does one set of guys who can’t legally use them “get to” for DOJ purposes, while another set can’t?

    @114 – You mean they aren’t the same place. *g* Sorry, I think I keep seeing references to some kind of Boston case he was involved in and sidetrackign on that. Durham/CT, not Mass. Mea culpa.

    @115 – thanks. So what is the status of things during that investigation? Does the investigator have subpoena powers, etc.? Can they call a GJ yet? Or do we know?

    • bmaz says:

      I dunno; what I related was mostly taken from what someone who knows DOJ quite well sent to me with a scunch of my own experience. I will see what I can find out on that, it is a good question.

      • Mary says:

        I’d kind of think an institution like DOJ has regs that give some kind of skeleton to this, but it may not and it may just be very touchy feely “we usually” do this and that kind of things. It would be great if you could get a source to cough up some more detail. If LHP knows, it would make a great post for her to do, letting us know what to expect from a “prelminary investigation” in this kind of a context. Thanx much.

        • bmaz says:

          Okay; here is the best I got. Durham has what is, upon information and belief, a “special GJ” empaneled and there is usually a description of the subject matter that is covered; in this case, it would be the torture tape investigation. Because the subject matter is so close, it is hard to see there ever being a comingling issue. As I indicated above, Durham looks to be fine in using his open GJ so long as he stays within torture issues and follows guidelines.

          The “preliminary review” process is more an internal DOJ practice device. PR’s don’t exist in law. They are just internal cost control devices so you don’t have to do a ton of paperwork to “open” and “close” an investiatgion. They are commonly used where the DOJ or a USA office wants to establish a matter is going nowhere with a couple google seraches and phone call and maybe a few interviews. They do NOT contemplate use of a GJ. ”It is a very cursory thing”.

          And, another quote direct from my friend’s lips, “that’s why I say the IG’s report is much more than a PR”; and why this may not bode well for much coming out of this.

          Teh whole PR thing makes no sense.

      • LabDancer says:

        Ech … I’m too old; first I have to pick up the trail of moldy synapses to get to the archive, then fire up the boiler on the Wayback machine…

        Anyway, I seem to have been involved in one of these ‘preliminary investigation’ doohickeys, back in the 1980s;

        one of those “make-up” cases [as we called them] that used to arise, where administration A does something, say, characteristically bright innovative daring but controversial & with a definite need to work out some bugs; then administration B — to lift from Papadick — ‘assumes power’ & eventually gets round to venting against all the new-new, releasing the hounds of resentment on the program — often resolved by some wealth redistribution combining a more-or-less symbolic ‘voluntary’ official forfeiture & a corrective re-balancing of political donations.

        I was acting for a team of folks associated with a large ‘reputable & principled’ corporation that is no longer self-standing [its name now less resonant than Ozmanydias], each of whose members, as well as the CEO, COO, CFO, chairman of the board, second assistant chief to the chief assistant of the cleaning staff, etc] received a mostly identical letter on official letterhead ‘inviting’ that member’s to ‘attend’ an official inquiry, with copies attached of what purported to be all the various statutes & regulations & policy directives relevant to its creation, purpose, structure & operating principles [and lack thereof].

        The letters & attachments clarified the invitation was not strictly on par with a subpoena, but if such were required the writer would consider whether to use the authority vested etc etc blah blah blah to present a case [ex parte, of course] to the appropriate issuing authority in pursuit of one — as well as how while it appeared at this time at least arrangements could be made to attend in a manner to suit the “convenience” of the witness, the writer was unable to speculate about such in the future. The upshot was that, perhaps [or maybe not] surprisingly, it was unanimously decided that all my clients would attend ‘voluntarily’.

        That would seem to fit the part of Pincus’ story suggesting Durham was awaiting word on ‘whether or not’ certain contractors would ‘choose’ to attend.

        The entire engagement, on something arguably more technically complex but substantially less controversial than what Durham’s dealing with, though it seemed fairly straightforward to us at first, seemed to just grow & grow like a chia pet, and in the doing, from my perspective as counsel/minder, ended up taking 3 or 4 times the commitment I’d forecast; but with a seeming good result all round [which for the benefit of the non-lawyers means: my bills got paid] — and all in secret — well, more accurately, thanks to some intrepid shoe leathering by a local reporter for an alternative paper, all except for the existence of a secret hearing, for something unknown.

        The practical operation of the hearing itself was not fish nor fowl nor crustacean; parts of it felt like a grand jury proceeding; other parts felt like a legislative committee hearing, with the courtesy of mostly no interruptions or objections; still other parts felt more like examination on interrogatories; someone would insist on “the rules” being followed, but BY THE RULES the rules can be relaxed, by agreement or convenience or even if it comes to it going to see a judge to settle; after a while the lawyers on the justice side started spending their coffee breaks with their feathered friends for the well-heeled downtrodden, so we ended up with some streamlining & some negotiated privileged areas; with the usual smattering of barking at each other over some procedural point or at some seemingly propitious moment when one’s witness was falling asleep or straying from the gist or had gone brain-dead or just had or seemed about to confess to killing OJ’s wife & her friend.

        Now, this might not be quite so accurate from the standpoint of the more prominent players — who were not “targets” strictly; at least, they didn’t get letters; but no one was under any misunderstanding as to who were the main players, no less from their obvious lesser enthusiasm with the process, particularly after having been there a number of weeks already, with more to come.

        But even with them there was more openness than I recall occurring in any of the other procedures referred to above, including legislative committee hearings. I think it may have had a lot to do with there being no obvious ‘audience’, and nobody with a ‘kick me’ sign on their butt.

        Then it ended & our side heard nada, for weeks, into months, into over a year, and then — somebody got charged. Now, I wouldn’t want there to be too much excitement on noting that, because the charge itself never got to trial, having suffered a fate within the bounds of the concern bmaz described near the top of the thread: that is, having something to do with a defense allegation of improper use of the investigative hearing in the charging process [I don’t recall the details, partly because I wasn’t directly involved in that part [who got charged wasn’t one of the folks I was acting for — & if he was, I might not be able to say anyway].

        But there you have it: yes, the kind of process that appears to be going on here can lead to charges; and yes, the prosecution side can be vulnerable to accusations of improper use of the investigation in the charging process; and yes, from the limited perspective I had of it, at least for the period I was directly involved, I got the impression that it worked pretty well for all concerned — no snark intended; I mean to say, it appeared to me to generate a fair & truthful picture in an effective way, without trammeling on anyone’s rights.*

        * Mind, I might feel differently if it had been one of my clients who was charged; I do recall that the lack of structure and the informality formed part of the complaint on behalf of the man who was charged, of he & his legal team effectively being “suckered” into some the revelations that ended up as elements of or at least being mentioned in the charges.

        I’ll look forward to any updates from your source as to whether all this sounds familiar.

        • bmaz says:

          Oh, agreed. It takes pretty high tech criminal defense attorneys to, first off, recognize the issue and then to have the time and resources to literally dissect and map out every relevant fact in the GJ transcript and then figure out where it came from and/or should have come from. In a big case this is incredibly time consuming. Then you have to make your argument in a motion to remand and, frequently, make enough of a showing to warrant a hearing to further prove it up. If you are beyond fortunate, you might show an intentional bad faith scheme by prosecution/law enforcement; but this happens almost never.

          Realistically, all you can hope to obtain is a dismissal without prejudice and force the government to re-present to the grand jury with a cleaner fact set and, perhaps, an opportunity for the defense to request leave to submit contravening. GJ presentations are always cleaner and more restrained when they know competent defense and court eyes are in the offing.

          Mary – I have not heard back on the GJ parameters associated with PRs – will advise when I do. I snooped around the DOJ/USA Manual a bit but did not find anything.

  28. PJBurke says:

    Somewhat OT perhaps… but something bothers me.

    Being accepted without challenge (or discussion) is the “video tapes” assertion. Maybe they actually were old-skool style “tapes,” but I wonder about that.

    Before coming out to Southern California, I worked as a lead developer and an IETM Project Manager (SVTT IETM) at the Naval Undersea Warfare Center’s Advanced Interactive Media Technology Center (AIMTC, or “aim tech”) Lab at Newport, RI (NUWC-DIV-NPT).

    By the late summer of 2000 we were already completely onto a Navy-wide digital video standard. We were already deep into producing, mastering and embedding digital video into numerous IETMs (Interactive Electronic Technical Manuals), which were then distributed to the fleet via CD-ROM — and were also capable of live update via internet. This technology was widely available commercially at the time, and the numerous advantages of digital -vs- analog were well-understood by all branches of the military at the time.

    So what bothers me is this: should we be accepting — as fact — that the torture recordings were made on actual old-skool tape? Is there an actual direct statement, e.g. “we recorded on tape” on the record from anyone who should be considered unimpeachable as to such statements of fact? Or is that “tapes” idea serving as a very-convenient-for-Cheney (but not necessarily true) assumption?

    The stakes are pretty obvious: digitally-recorded, digitally-transmitted torture-porn could very well still be “living” on a server, a CD or DVD, or even embedded within an e-mail somewhere. Maybe only within SIPRNET, but it could very well still be somewhere.

    OK… back to the regularly-scheduled Wheel of Brilliance & Company.

    • readerOfTeaLeaves says:

      So what bothers me is this: should we be accepting — as fact — that the torture recordings were made on actual old-skool tape? Is there an actual direct statement, e.g. “we recorded on tape” on the record from anyone who should be considered unimpeachable as to such statements of fact? Or is that “tapes” idea serving as a very-convenient-for-Cheney (but not necessarily true) assumption?

      The stakes are pretty obvious: digitally-recorded, digitally-transmitted torture-porn could very well still be “living” on a server, a CD or DVD, or even embedded within an e-mail somewhere. Maybe only within SIPRNET, but it could very well still be somewhere.

      PJBurke, this topic first surfaced here about 1 1/2 years ago, which is no slam at you at all — b/c this is a great, informative comment.

      I’m among those who wholeheartedly agree with your premise that Cheney (and GWBush) counted on people assuming that the ‘tapes’ were analog. I’m also among those who agree that the stakes are high, that there are very likely copies of those (digital) tapes floating around.

      In my case, I started out suspecting that other nations had found a way to hack, buy, or obtain copies; more recently, I’ve suspected oil companies among those out to get ‘protection + blackmail mojo’ by obtaining tapes.

      And just to underscore you point, consider that GWBush could — technically — have been watching in ‘real-time’, if you really want your spine to shudder. Ditto Cheney. Toss in conference technologies that were maturing in the late 1990s and early 2000’s, and it’s uber-creepy.

      So yeah, plenty of reason for a whole lot of people to claim that we ‘need to move on’ and ‘not keep re-hashing the past’. Among them, a whole lot of GOP Senators (and a couple Dems) who weren’t keeping an eye on what BushCheney_Blackwater were up to.

      Sinister.

      • lllphd says:

        oh, christ, the blackmail thing had definitely occurred to me, but not the real-time sadism factor.

        i mean, holy christ.

        so why would obama want the move on with that kind of goods on these creeps? would it not make more sense on several dimensions for him to see this as an opportunity to really spike these thugs once and for all, neocons and all the oil war machine maggots with them? and make him the hero rescuing our nation for all time? i’m missing where he has reason to sign up for the craven crew. unless, of course, it’s simply for him and his family to survive.

  29. 8bitagent says:

    Riddle me this Batman: If these so called “al Qaeda” clowns were really behind 9/11, why the need to commit months of brutal torture on all of them to obtain confessions?

    Sounds like the CIA needed to fill in the gaps, so to speak.

    I appreciate Eric Holder finally looking into the crimes of the Bush/CIA junta, but I think there absolutely needs to be a new investigation into the events of 9/11…regardless if most of the left and right buy the official meme.

    • readerOfTeaLeaves says:

      If you click on EW’s Ghorbanifar Timeline (on the right side panel of your screen), you may want to check out the period of April, May, June 2003.

      There are reasons not directly related to 9/11 that would prompt Holder or any sane, clear thinking individual, to investigate what happened under Bu$hCheney, Inc.

      They may have more to do with controlling resources or other as-yet-muddy reasons than they have to 9/11.

  30. alinaustex says:

    bmaz @ 2O
    Hey pal – I have been putting in many hours at work -so I have not been here -but a few threads back I did say yes I would cover our bet for the 100 dollars ;
    Now if a former Secretary of State who in her capacity as NSC advisor was convicted of perjury or obstruction of justice in an US court -such an individual would qualify as a Principal according to the terms and conditions of our bet right ? Would a former White House Counsel also be a Principal ?
    Regarding your snark about gitchegumee @ 34 _ I did not know that background and finding often I wind up in cul de sac on the ‘information highway ” I probably could not go look up the fdl archives as you suggests. It was helpful for gitcheegumee to post that for me.
    Bmaz do you know many of us -value highly your insight -but have grown very weary of your rudeness,
    Let me know about about whom you think is a Principal -but my bet with you is covered -and the Durham GJ IMHO makes my bet look even better

    • lllphd says:

      al, have to agree with your compliment of bmaz, and your candid criticism, as well. the rudeness just has to stop. please.

  31. bmaz says:

    I saw that. I said I agreed about cabinet level officials; so yes that would qualify. If Durham gets Rice, or anybody else at that level on those charges out of the torture investigation, you win. I will make it simple, any felony convictions, of any variety, of cabinet or principals level position by Durham out of the torture jurisdiction and you win. Glad to see you are willing to back up your position; this is one bet I hope I lose.

    I will warn you though the statute of limitations has expired on those types of charges as you mention except for all but the very last days she served as NSC as perjury and obstruction have five year statutes. Her actions while at State in that regard are still ripe though; so the ability to get perjury or obstruction would depend on the time frame.

    • bmaz says:

      None, but for a variety of reasons, those are the most difficult to prosecute from a technical perspective. Not to mention they are the most embarrassing for the govt, so the chances are not good.

  32. alinaustex says:

    bmaz @ 148
    There is so much in the public record currently -open sources – that will lend itself to murder by torture charges against Cheney among others that we made not even need the ’sh–t storm” of new information now flowing from the other 98% of our federal employees that want to see the other 2% tried , convicted , and punished . Recall the EIT illegality migrated across the ‘GWOT ” interfaces -it just wasn’t at the old air base in Thailand -it was also at Camp Nama in Iraq . These criminal 2% did infect all of the federal depts and agencies involved in the “Long War ” -well at long last we are witnessing end of the beginning of claiming back our nation’s Rule of Law .
    How does a Review get to a Grand Jury in Five days ? We’ll one good way is when 98% of the career employess are totally bpissed off at the criminal 2 %- think Cheney & Rumsfeld –
    bmaz without revealing ’sourcees and methods’ I have full faith and confidence in my side of our bet – and would be delighted if you felt the same way about your side of our bet – in which case we could double down and make it for two hundred dollars -heck with that much money we could actually afford to go wade fish West Bay – there also is a very a good roadside BBQ stand on the way in Clute -So bmaz you want to double down for two hundred- with the same terms and conditions as you outlined @145 ?

    • bmaz says:

      Fine. As to the rest, a preliminary review does not get to a GJ in five days, and it did not here; however Durham may be dual purposing his use of the torture tape GJ. If so I applaud that, but that is speculative and we really do not know yet. Lastly, what you think is in the public record is a far cry from what would be admissible in a criminal trial. 99.5% of the evidence that would be referred to as being public record would never see the light of day in front of a jury. Even that which could may have problems with requiring witnesses that can not be produced and/or the government is not willing to identify. This is will be even more true for the cases that resulted in death. There is a world of difference between that evidence which could be hearsayed in for even a probable cause determination to file charges and that which would be permitted in front of a jury in a trial court.

      • readerOfTeaLeaves says:

        Durham may be dual purposing his use of the torture tape GJ

        As this goes forward, it is really important to make sure that the term ‘torture tape’ is NOT limited to the notion ‘analog’. PJBurke makes a very good point, and I’m convinced that Bush, Cheney, Rice, Hadley, Cambone, Addington, Alice Fisher, et al would have no problem whatsoever looking God straight in the eye and saying that they ‘didn’t tape’…

        In RovianSpeak, that would mean, “We didn’t make ANALOG tapes, and since you didn’t specify what type of tape, we’ll tell you honestly that we didn’t ‘tape’, because we didn’t. Make ‘analog’ videos.”

        Because, you know, in Bu$h$peak and Rovarian, that means that they didn’t lie.

        They’re counting on not being asked about the specific type of tape, and as long as they can weasel, they will.

        After all, it was GWBush who told the press corps in Sept 2003 that any WH staff found leaking about Plame would be fired, and that DC was ‘full of leaks’. GWBush smirked when he said it. So he’s counting on the prosecutor(s) being technically inept, in order for his truthiness version to keep his ass out of prison.

        So when ‘the left’ or whatever the odd collection of The Great Pissed Off calls itself talks about ‘tapes’, it’s important to expand the concept. To help other people — like, people who watch YouTubes — grasp that ‘tape’ is no longer a narrow term limited to VHS video. It means digital. And that’s probably where this will lead.

        • bmaz says:

          Trust me, the folks at DOJ, and Durham and his assistants, may not be digital whiz kids, but they are not tunneled in on BetaMax or VHS or something. I am pretty confident that, of all the possible issues, this will not be one.

      • lllphd says:

        if wishes were horses….

        bmaz, alinaustx raises some interesting points that may not win him the bet, but still provide an interesting angle, at least on the pictures that were held back by obama. could the inclusion in that batch of a known murder victim be perhaps the best reason so far for keeping them under wraps?

  33. alinaustex says:

    bmaz @ 151
    If I win the country wins (and my wife will finally get a break from my opining about the criminal torture regieme aka gwb 43 )
    And heres a question for you my friend – if there are (whats that lawyer word – oh maybe its contemperaneous )-anyway say if there were fore-
    nsically recovered email data that would prove the alleged ‘open source hearsay” was in fact TRUE -then that might actually make the evidentiary threshold for a prosecution no ? I am told by credible geeks that once a ‘tape’ or email or other information goes digital and gets sent to more then two places on the ‘internet tubes’ – its very difficult to reliably destroy that same information.( I’m specifically referencing here what the pissede off 98% has squirreled away to go after the 2% asshat offenders -and again this could be from every dept & agency -particularly “NO SUCH AGENCY ” and its sibling “OTHER GOVERNMENT AGENCY ” )
    But thank you for doubling the bet -and more importantly thank you for not requiring me to wear my eye goggles the last couple of replies you sent me -Now if you’d quit picking on gitcheegumee maybe he will post some other information from the FDL archives that I did not know about….( Where is the archive button on this hoohah anyway ?)

    • bmaz says:

      Not necessarily, you still have to lay a proper foundation for it to be admissible at trial. Might could come in under one or another exception, but it is quite a bit more difficult than you appear to be imagining. Don’t listen to “attorneys” listen to people that actually try these buggers in live jury trial courts, they will tell you about the difficulties in laying evidentiary foundation for all this info that we here deal with every day. Just because it is valid and credible information by no means indicates a jury will ever see it.

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