The Emails the Bush Lawyers Were So Worried About

As I noted yesterday (though I got the details slightly wrong), the OPR report revealed that a number of John Yoo and Patrick Philbin’s emails had been deleted (and that Goldsmith’s had been deleted but were subsequently recovered).

OLC initially provided us with a relatively small number of emails, files, and draft documents. After it became apparent, during the course of our review, that relevant documents were missing, we requested and were given direct access to the email and computer records of Yoo, Philbin, Bybee, and Goldsmith. However, we were told that most of Yoo’s email records had been deleted and were not recoverable. Philbin’s email records from July 2002 through August 5, 2002 – the time period in which the. Bybee. Memo was completed and the Classified Bybee Memo (discussed below) was created – had also been deleted and were reportedly not recoverable. Although we were initially advised that Goldsmith’s records had been deleted, we were later told that they had been recovered and we were given access to them.

That’s particularly interesting, because several times in the year-long lead up to the release of the report, we’ve seen reports that Bush Administration members were squirmy about the number of emails OPR had gotten. Michael Isikoff first reported concern from Bush lawyers that OPR got emails from the memo contributors last February.

OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.

I wondered whether reappearing emails was of particular concern to those trying to cover up Bush crimes here. Then there was the remarkably bad NYT story from June 6, 2009, that not only revealed the presence of the emails and included the damning Comey ones, but spun them just as Steven Bradbury would have liked them, as an attack on Comey rather than what they were, an indictment of the drafting process.

All of this anxiety about emails could just be an expression of Bradbury’s worries (retrospectively, it looks much more likely than it already did that he was the source of the emails and the spin to the NYT).

If so, though, that’s particularly interesting since we know that OPR originally got a very limited batch of emails from Steven Bradbury (this was in 2004, before he would write his own torture memos).

On August 31,2004, Bradbury gave OPR copies of unclassified documents relating to the Bybee Memo, including email and documents from the computer hard drives and files of the former OLC attorneys who worked on the project.

But reports of the anxiety about emails are all the more interesting given the emails that are included in the report. Perhaps the most damning example is the email in which Yoo refers to Abu Zubaydah as “Boo Boo” (which Spencer reported on Friday):

On July 30,2002, Yoo asked [Koester] by email, “[D]o we know if Boo boo is allergic to certain insects?” [Koester] responded,”No idea, but I’ll check with [redacted].

In addition, email evidence provided the basis for [Special thanks, again, to burnt for making searchable copies of these reports that made compiling this list much easier]:

  • The start date of the Bybee One drafting process, April 11, 2002
  • Timing or summaries of key meetings, including some with Alberto Gonzales
  • Yoo’s comments on drafts sent to Jennifer Koester, his side-kick in the writing process
  • Details of Bybee’s involvement in the drafting process
  • Proof that Yoo didn’t intend to write the Commander-in-Chief or possible defenses before his July 16, 2002 meeting with Gonzales (and probably David Addington and/or Tim Flanigan)
  • Evidence that Yoo consulted with a university law professor on common law defenses (the second draft, but not the first and final, shows that this was a university professor)
  • Indication that Yoo and Koester didn’t start the Bybee Two (Techniques) memo until July 25, 2002 or later
  • Details on the pressure the White House was putting on Yoo to get the memos done
  • Details of who received the opinions including–a fact that Yoo later denied–DOD
  • Complaints Koester received from DOD’s Working Group that the Yoo Memo was too extreme
  • Proof that both Michael Chertoff and John Yoo told CIA’s Inspector General they would wait to investigate alleged crimes until he was done with his investigation
  • Goldsmith’s opinions about the Bybee One Memo, including his judgment that it constituted a “blank check”
  • Comey’s emails documenting his concerns about the May 10, 2005 Combined Memo and his belief that Bradbury was responding to White House pressure because he wanted the AAG position

In other words, the emails provide a key piece of evidence that the White House was responsible for the way in which the Bybee One memo served as a blank check, as well as the pressure the White House put on the lawyers as they were drafting the memos.

The emails put the White House squarely in the drafting process.

But that’s all with most emails from John Yoo and Patrick Philbin still disappeared.

It sort of makes you all the more curious about what was in the Yoo and Philbin emails that got deleted, huh?

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  1. skdadl says:

    This is amazing work, EW, just amazing. Thank you so much. If I knew so many of those things at one time or another (usually from you in the first place), I’d never remember them and certainly wouldn’t be able to put them together narratively without you.

  2. BoxTurtle says:

    It’s so frustrating, with all this evidence, that there is absolutly no interest in pursuing these crimes. From anywhere.

    If this is a guessing contest, I’ll guess that the missing emails put Bush or Cheney personally into the mix. And that they confirm that BushCo was trying to justify conduct that had already occurred. And they they were actually planning how to get away with a crime.

    Boxturtle (Either that, or they show that Bush really IS a doofus)

    • PJEvans says:

      Darth, probably via one of his office minions, certainly would have been involved. (In one of the other threads, it says that he personally approved torture EIT on a number of prisoners detainees.)

      • JasonLeopold says:

        Cheney told the Washington Times in an interview in December 2008 that he personally approved EIT on 33 detainees and personally OK’d waterboarding of “those three guys (Cheney’s words)”–al Nashiri, AZ, KSM.

        • PJEvans says:

          Thanks!

          (I wasn’t going to give a number, because I couldn’t remember which thread it was, or how many. May he have every one of them haunt his sleep.)

        • Mary says:

          And in investigations that limit scope to things like the prof standards used in issuing the OLC opinions, no one is going to be entitled to follow up on the questions of how a VP had authority to approve such actions, whether there was a delegation to him, whether it was in writing and met the standards similar to those OLC indicated where necessary for a Gonzales to Kyle&Monica delegation, whether the VP’s actions – as 4th branch – were briefed to the Intel committees under the Nat Sec Act requirements, etc.

          OT – but related to the prior threads

          One thing I have never seen discussed much is Mukasey’s conflicts vis a vis his approvals of the Bradbury opinions. We have the general conflict that we’ve mentioned in comments here before – that DOJ has a vested pecuniary interest in a determination that it’s lawyers acted within the bounds of professional and legal conduct. Mukasey has another special area of conflict, though.

          He was the judge who used the FBI declarations from two sources to be used as a basis to pick up an American, in America – Padilla – on a material witness warrant. He then allowed gov lawyers to take the witness who was in the COURT’s (his, Mukasey’s) custody (not the prosecutors’ – the court’s) and disappear him out of jurisdiction and into military hands. Mukasey never took any action whatsoever against the prosecutors or other gov actors who took Padilla out of Muksasey’s custody and disappeared him into military hands. Go find another instance where that has happened – prosecutors take a material witness being held by a court order and involuntarily disappear them (not into witness protectio) from the court, and the court does nothing.

          But then you add the other wrinkle – who were the sources Mukasey used for his material witness declaration? What did he, as a federal judge, allow gov to use as “sourcing” for the issuance of a detention warrant? The sources were Abu (akbjya boo boo) Zubaydah and Binyam Mohamed – two men tortured under the auspices of the torture memos. Two men whose treatment almost certainly had to have been deemed criminal by any normative review.

          And there sits Mukasey, who as a judge particpated in the detention order – based on torture – and the disappearance of an American citizen from his custody- also based on torture – now sitting as AG and opining on behalf of the department about its role in these activities which were so interwoven with his OWN roles. And you have OPR subject to him and his decisions.

          IMO, they all knew what Bradbury did was even more clearly criminal than what Yoo did, and the only way around it was to say, “let’s look forward”

            • Mary says:

              @ 12 – I have to use my pitchfork for digging out an Agean stable-ish stall, but once I’ve finished with it for that purpose, maybe?

              @45/2 – that’s what I always found so amazing about the Gonzales memo from Jan 2002. The MSM only talked about the “quaint” references – it’s like there was a conspiracy to talk about the memo a LOT without EVER talking about the really important part of it – Gonzales as WHC telling W that the things they were doing would be War Crimes under the War Crimes Act as it then existed and would be eligible for prosuecution by successive administrations (domestically – he kind of glossed over non-domestic prosecutions) unless they made up the “[non-person]unlawful enemy combatant not covered by the Geneva Conventions” approach and pretended that making up a new label and asserting a Presidential right to decide, conclusively, to whom the label applied, “worked” to get them out from under the War Crimes Act.

              @ 51 – backatacha

              @46 – yeah, maybe bmaz is right that it’s worthless, but it was kinda worth it for that comment at 46 – esp this:

              One that justifies itself by asserting that ignorance must be valued as an equal to intellect because the speaker is ignorant

              *g*

              EW – the one kinda cool thing from the ot is that I now know more reasons for tuning in to the book salon on Mon as per @50

          • emptywheel says:

            And I’d go further down that route.

            Remember that DOJ has told the 9th Circuit that Padilla doesn’t have a Bivens claim against Yoo because OPR can properly discipline any problems with Yoo’s work. Seeing aside whether you believe that’s sufficient argument, in THIS CASE, OPR was forced to give that same Judge, now elevated to AG, a review of its work. After he provided written comments, Yoo’s lawyer largely based his own response on Mukasey’s statements. And just as importantly, Mukasey basically dismissed any legal review of the Bradbury memos because–you guessed it–he had already reviewed it (as I pointed out last thread, this was not the same kind of legal view OPR undertook).

            So DOJ says OPR can punish Yoo. But as part of the process of OPR attempting to do so, that same judge reviews teh work, all but admits a later person conflict (his judgment that the Bradbury memos were cool), but nevertheless he still lays out the basis for which Yoo responds and ultimately gets off.

            Which is why OPR can’t hold Yoo liable (as the outcome of this fiasco makes clear): There are too many inherent conflicts, not to mention at one point OPR reported to someone who had just that conflit, who prevented OPR from rushing out an adverse ruling against Yoo.

            I frankly think the OPR report is much weaker than it should be, so though I think Margolis decision was wrong, I think he argued his point better than OPR. But OPR was trying to hold top lawyers responsible when some of the lawyers implicated were its supervisors.

            • Mary says:

              Let’s also add in the fact that the supervisory position of OPR (and OLC) was held, in unbroken line, from Ashcroft through Mukasey, by men who were intrinsically tied to the Executive branch authorized torture and disappearances. And let’s see – hmmm, were those torture tapes that were still around when Bradbury wrote his memo, but didn’t review the tapes, still even around for Mukasey when he made his review? Gee – kind of a different animal to opine on an opinion when the evidence demonstrating it was based on false information has been destroyed, along with a boatload of emails.

              Also, the scope of the delegation to OPR doesn’t even allow them to investigate how “professional” it was, or was not, for DOJ to disappear emails and other evidence from multiple in-house lawyers while investigations and litigation were ongoing. IOW, the guys setting the mandate of the investigation didn’t allow for any resources or mandate to be provided for obstruction of justice, destruction of evidence, etc in connection with that investigation.

              And I still haven’t heard any good explication of OPR’s powers with respect to investigation of its bosses at that AG and with respect to accessing the AG’s communications with WH and OVP and Nat Sec Council etc. in its investigations.

              And then there’s the fact that policy at DOJ is set by the President. Holder has acknowledged in his puff piece that just came out that the President can overrule his (Holder’s) legal determinations (even a non-lawyer President like Bush). So you have Main Justice and OPR operating for the investigation in an atmosphere of Gonzales & Mukasey involved in the torture issues and seeking to minimize or deep six investigations, followed by a President who publically declares that DOJ’s policy vis a vis Executive branch torture and criminal behaviour will be to “look forward, not back” That’s the ultimate policy set by DOJ – it’s the reason there is such a thing as a Bivens action, bc that is always going to be the ultimate policy of a Criminal Branch when they control the prosecutorial function.

          • vergniaud says:

            Mary, until I read your post above it hadn’t dawned on me Mukasey was the judge holding Padilla when he was still a “material witness.” I have long been obsessed with that moment of transfer of Padilla from the custody of an Art. III court to a military gulag. (It strikes me as a great scene in the history of the downfalls of republics! Up there with the Ashcroft sickbed scene or the murder of Julius Ceasar. Needless to say, when the drama is written of the end of our republic, it will clearly have to take the form of a farce.) But how did it transpire? What kind of paper was shown to Padilla’s jailers and by whom? Why did they honor it?? Did Mukasey accommodate the process by issuing an Order authorizing the transfer — “I hereby acknowledge on behalf of the Judicial Branch the following change in our frame of government which was effected and ratified on 9/11 in accordance with the terror amendment process which appears in invisible ink as Art. 5.5 of the Constitution, to wit: that because of the emergency caused by the mass bed-wetting of Republicans, henceforth the Unitarian Fourthbranch shall be supreme, and all other branches of government subordinate to it”?

            • Mary says:

              Wouldn’t I like to know the answers to your questions. The USAtty, btw, who was in charge of the Padilla detention was Comey. Comey and Clement (who later fibbed to the Supreme court that they didn’t need to worry about warrantless detentions bc the Exec of the US didn’t torture or even do things “like” torture) at one point were going toe to toe with Mukasey on his order to let Padilla have a lawyer, next thing you know, they are all in a kumbayah circle with no material witness left in the middle and no one seems to have ever dug in and examined the process of how the person in the court’s custody got disappeared out of the court’s custody.

              The really basic questions never get asked, but we get these weird, limited mandate OPR investigations that defer everything out for years and years, including all the things that aren’t within the mandate.

              Never asked and answered – what the hell happened to lit holds, what with all the destroyed evidence and emails? What the hell happened with duties of candor to tribunals, what with all the lies to courts and Congress? What the hell happened to prohibitions on trials by press conf, what with the Comey run Padilla presser? What the hell happened to continuing duties to update, what with decisions from Rasul to Boumediene making it clear that the courts did have control over aspects of the detentions? What the … well, you get the idea.

              We’ve also had, from Plame forward, this Congressional/Court “back off” of investigations bc of the DOJ asserting an ability to inhouse the investigations. That’s crazy crap and has never been really addressed, for all the sound-bytey Conyers and Leahy and Waxman etc. “hearings” over things like Plame.

              Right now, we have no independent counsel statute. Has anyone in Congress sat down and done hearings and investigation on the PROCESS for getting review of Exec branch crimes and even the internal (to the Exec) definition of Exec branch crimes in light of everything that has been ongoing? The whole of the damn process is a DOJ reg on outside counsel, which no one is bothering to use anyway, and the whole of the review has pretty much been Fitzgerald telling them that when he is appointed inhouse, like he was, that whoever is supervising him can secretly change his mandate and authority at any time and without any notice to Congress – which got nada response from Congress.

              So after Dems running the show in at least the House from 2006 on, and with more so now, and with DOJ stacking up the “inhouse” and limited mandate approach, where is even the beginning of an investigation into the process, much less legislation to provide more reports to Congress and the courts or more avenues for investigation? Where is the investigation into how the process worked to date, much less how it should work in the future? There’s been nada. Nothing on the rampant violations of the National Security Act, nothing on the lies to Congress and the courts, nothing on the Exec run amok aspects of using DOJ and OLC in particular, in combination with anti unConstitutional classification powers, to establish a system where the Exec creates the law by EO and covert regs and opinions – without any review by the branch that is delegated to creat the law, and where the Exec then implements its internally created law with the auspice of immunity from prosecution for violation of laws that the Exec did not internally create, and where the Exec is then allowed by the Congress, the Courts and the Citizens to supplant its own review for judicial review.

              From the CIA role in the missionary family murders on – Congress has not required any RELEVANT inquiry into the gaming of the process by inhousing to DOJ and the President the Constitutional functions of legislating and judicial review. Change the OLC statutes – little thing like disallowing immunity for criminal acts based on reliance upon a classified opinion – and you do significantly change the game. Spin wheels investigating the investigation of how professional or unprofessional an opinion was and you simply assist in the process of allowing the Exec to dissamble Congress and the courts on a de facto basis by keeping up the pretense of a de jure existence.

              • Mary says:

                BTW – my bolding on “definition” goes to this concept that keeps popping up – from Holder’s deference to Obama being able to set policy on what is or isn’t a crime to investigate to whether or not criminals that are (per Rasul and Boumediene) currently within the Federal Courts’ jurisdiction, can be treated as if they were not within the court’s jurisdiction based on Exec whim, to Yoo’s input on a President who does not even have a war declaration can off entire villages of innocents as policy, to Comey’s testimony from the hospital confrontation hearing that there was a theory at DOJ that if the President says do it, it’s legal -something he didn’t really feel qualified to testify on as a non-Constitutional scholar.

                Never as Congress even begun to hold DOJ’s feet to the fire on this – the concept that the President is not bound by the laws. I’m guessing DOJ’s definition of a WH crime is one for which Congres impeaches – otherwise, anything goes. It would be nice to get to that, though. Something Congress seems very unwilling to do.

                • Mason says:

                  It would be nice to get to that, though. Something Congress seems very unwilling to do.

                  I agree.

                  As Congress proved beyond any doubt last year, with few exceptions its members are concerned only about enriching themselves with corporate bribes and no longer gives a damn about what the people want or need. It’s utterly useless.

              • bobschacht says:

                Right now, we have no independent counsel statute.

                If we did, I’ll bet a lot would be different now. Boy, do we need that statute again.

                Thanks for reminding us.

                Bob in AZ

    • El Duderino says:

      It’s so frustrating, with all this evidence, that there is absolutly no interest in pursuing these crimes. From anywhere.

      Oh, there’s interest in prosecuting the crimes; it’s just that no one in a position to prosecute them is interested.

    • fatster says:

      “And they they were actually planning how to get away with a crime.”

      And they so successfully got away with a crime that Cheney is openly confirming it and the right-wing is picking up torture as a rallying cry.

    • Endymion says:

      Justice is out of reach, same as ever. No system composed of self-interested parts can provide true justice, and we remain all too human. All that is left is to try and ensure recorded history reflects the truth as much as possible.

  3. bobschacht says:

    It sort of makes you all the more curious about what was in the Yoo and Philbin emails that got deleted, huh?

    Well, it does give us a pretty good idea of why those emails got deleted, doesn’t it?

    This is another really fine bit of work, EW. The Staff of Conyers and Leahey will be gobbling this up along with your other work. Lets hope they put it to good use.

    Bob in AZ

  4. DWBartoo says:

    To what species do all these many crimes belong?

    If they are truly, at their base, crimes against humanity, and, if they are also, in some concrete way, crimes against the Constitution, and, in their successful completion, which success entails the the escape of just consequence for their authors, enablers, and willing participants, and in the end, these crimes are also harmful to the people of the nation, in whose name these acts, all, wrapped in patriotism, indignant that any might question, have been perpetrated, then what name, to them, may we, most honestly, apply?

    Is this a new species, or merely one we are embarrassed or unwilling to place around these crimes, because, in using the most appropriate term, we must then consider what proper course, thereafter, would then be demanded, not of others, but of ourselves?

    What shall we call these many crimes?

    Unless we wish, for comity’s sake, or someone’s, to dismiss them all as simply honest, unintentional, and essentially harmless mistakes?

    These crimes be but reason?

    DW

    • bobschacht says:

      No, these are not a new species of crime. All these crimes have already been labeled and are on the books. All we need is a prosecutor willing to prosecute them, and a Congress willing to use its Constitutional powers of impeachment.

      What is new is the extent to which these crimes have been normalized by their frequency and brazenness. The public has now been inoculated against outrage. There will never be another Saturday Night Massacre because Saturday night massacres have become normal; just another policy difference on the political landscape.

      Geez, I’m starting to sound as cynical as bmaz.

      Bob in AZ

      • DWBartoo says:

        You and bmaz are not cynical, bob, merely disgusted and saddened beyond glib banter, and you are reasonably (meaning with reason) angry –

        True cynicism proclaims that these are but “policy differences”, that all is, essentially well … that nothing of serious consequence has even occurred.

        Yet, it is this primary deceit which poses the most dangerous threat to our nation, its principles, and thereby, its people, as ever we have faced in our history, as it goes to the heart of both power and consequence.

        How may we gauge or even imagine the extent of the broader consequence which shall befall our nation if this cynicism long endures?

        What, then, does our nation stand for, if not the arrogant expediency of the moment?

        Can anyone trust such a nation?

        Either those without, or those within?

        Indeed, if this calamity, for that is purely what it is, is not dealt with, then surely we court total catastrophe.

        The inoculation you speak is not complete, and will not be, unless the voices of reason, yours clear and strong among them, fall silent.

        I suggest to you, that we are not at an end, but at a beginning …

        And we must call all these things, which, together, they are …TREASON … for we are speaking of, and witnessing, nothing less than the true and deliberate destruction of justice and then, if it continues, the destruction of the nation, itself, as premised upon principle, reason, AND humanity.

        DW

      • Mary says:

        I only disagree with you on this point:

        There will never be another Saturday Night Massacre because Saturday night massacres have become normal

        They haven’t become normal, the kinds of people who would say no and publically force the Exec to fire them have become extinct – at least in the DOJ. The military still has had some – but you will notice that the names Mora and Taguba and the like never make an appearance in any of the Obamaco committees and appointments. Nothing is more a kiss of death to a military person in the Obama admin than to have been someone who stood up and helped make people crave the change that … brought Obama into office.

        This latest crushing of accountability is just another version of the story of the Obama admin – a story that’s been around long long time, with Obama merely it’s latest variant.

        The way the story was originally told, instead of a politician and a few good men and women, there was a Scorpion and a Frog

        • bobschacht says:

          Well, without going as far back as “Aesop,” I would like to hear your take on Garry Wills’ new book, Bomb Power, where he traces the current executive power grab to the Manhattan project and its sequelae.

          Bob in AZ

  5. klynn says:

    In other words, the emails provide a key piece of evidence that the White House was responsible for the way in which the Bybee One memo served as a blank check, as well as the pressure the White House put on the lawyers as they were drafting the memos.

    The emails put the White House squarely in the drafting process.

    With the pieces you have pieced together EW, the missing emails ARE the smoking gun.

    Thank you for amazing work.

  6. georgewalton says:

    Sigh….

    As if any of this back and forth about what the Bush administration did or did not do then, and what the Obama administration does or does not do now, bears any substantial relationship whatsoever to what the ruling class in American will or will not do in pursuing the interests of Wall Street and the military industrial complex abroad.

    This is the sort of bullshit liberal intellectiuals love to huff and puff about. The morality of it all!!

    Does American imperialism and the methods it uses to prop its interests up have anything to do with morality?!

    It amuses me how liberals in the mainstream media are actually shocked [shocked!!] that Obama’s foreign policy is virtually no different from the foreign policy of Bush.

    He lied to us!! Liberal intellectuals are supposed to have integrity!!!

    Oh, please. Torture will be used if it is deemed necessary to use it. End of fucking story. If you want that to change then elect Congresswomen, Congressmen and Presidents who are not lackies to the war economy.

    Disbar Yoo! Yeah, that’ll change the system.

    • PJEvans says:

      george, with all due respect, blow it out your ear.
      Or spend a month reading the backstory on this, because you clearly have missed it.

        • georgewalton says:

          Why don’t you go out on a limb and point out specifically the parts of my argument that are in fact contemptuous.

          What in the world do you know about the nature of American foreign policy? From the Monroe Doctrine and the installation of the Shah of Iran to Guantanamo and the black sites sprouting up everywhere in the psuedo “war against terrorism” both Democrats and Republicans have loosed the CIA to do the wet work when needed.

          America is responsible for installing and sustaining some of the most vicious thug regimes known to man. And you don’t do this unless you are fully prepared to deal with the blowback by any means necessary.

          Do you actually believe the “love me love me love me liberals” deeply enscounced in the Council on Foreign Relations [and in the corporate media] are not aware of what motivates U.S. foreign policy and the beastly methods used to perpetuate it?

          Would you like to debate that here at FDL? Can someone in authority set it up?

          • bmaz says:

            Jeebus, you guys are arguing about nothing. There is more than enough malfeasance and screwed up nation and world to go around and cover both of your views. Neither one completely encompasses it all. This is a silly confrontation.

            • fatster says:

              Yay! There are books out about this, including Being and Nothingness, if you really really have nothing better to do. As a step forward out of this “philosophiscal” morass, though, I recommend The Ethics of Ambiguity by de Beauvoir. Puts the responsibility to define meaning, good and evil and all those other heady concepts squarely on us.

          • JohnForde says:

            Your previous response to me was courteous and had some good points. But be careful what you ask for George.
            A debate? Really? Are you familiar with the Jungian concept of the shadow? Yours is showing.
            Do you know what the social dominance orientation (SDO) index is? I’m pretty sure you’ve got a big score. You could learn a lot here. It will be easier on you and us if you address us directly and humanely and not characterize us as liberals with derogatory adjectives affixed.

            Welcome to the Lake!

            • knowbuddhau says:

              WORD! Well said, JF, I bow in your virtual direction. Very glad to see another Jungian.

              Fear of one’s own Shadow, I recently wrote, is at the center of that mythology’s conception of being human.

              I dare say, most of us believe that, somewhere between our self and everything else in the cosmos, there’s some boundary, border, divide. OK then, put your finger on it. Point it out to me, right now. Upon closest inspection, we find there is no such line.

              This is the progenitor of every self/other division, from pejorative stereotypes to porous border walls. Note that the self/other divide is necessarily a semi-permeable membrane.

              Thus, the root cause of human suffering, is this: we cellf-imprison our selves in cellves of our own mistaken making. That’s right, astute ones: our misconceptions turn us into cosmic pinheads.

              For example, when we look up into the night sky, we’ve been taught mistakenly to implode our own psyches into quantum singularities of egocentric pain.

              This mythology falsely places fear of our own Shadow at the center of being human.

              ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

              Here’s a simple illustration to demonstrate this primeval principle.

              What is this?

              ___________________

              Is that an absolute boundary? Or a series of segments arising in a field? Are we many things, or one?

              In fundamentalist absolute monotheism, and that goes for absolute market fundamentalists, too, there can be only One. Your access to the Promised Land, therefore, rests entirely on your relationship to the proper authority. We take one position in a field (The Terrorists are coming! Regulation is evil! Obama always means well! or what have you), and define it as the center of the universe, judging others by their relative stances.

              The opposite mythology rests on experiencing the insight that I and the Other are non-dual, we are arising from the self-same source. Here, the goal is to experience identity with divinity. In the former, aggressive competition in defense of the illusion of the separately existing ego, is the central idol, making it ultimately self-defeating; in the latter, empathic compassion clearly is the proper motive for all human action, making progressive humanism only natural.

              Any thoughts?

            • georgewalton says:

              Admittedly, I am in a rather peevish, provocative, polemical frame of mind today. Why? Damned if I know.

              How would you situate Jung’s concept of the shadow and social dominance orientation in American foreign policy? Why don’t we start there?

              Oh, and I have learned a lot here. But, admittedly, when it comes to both foreign and economic policy I am all Bilderberg, all the time. Everyone will tell you that in here.

              In fact, you could say that’s what I aim to teach liberals of the idealistic bent: that the gap between how many think American democracy works and the way it really does makes the Grand Canyon look like a crack in the sidewalk.

              Again, sorry for the degoratory adjectives. But I also try to teach folks that polemics is not the same think as ad hominems.

      • temptingfate says:

        OK, I’ll bite.

        You say that understanding the “backstory” is the only effective way to determine the facts.
        georgewalton says that the specific facts of this story are only important if enough changes in out political leadership have taken place so that we have politicians and law enforcement personnel that will actually act on the information.

        So exactly why is your view that the specific details of this case are essential to solving the problem more correct than when he argues that there is no entity that will act on the crimes? Why do specific details matter to the point that views that perceive the effort to be more or less futile have no relevance?

      • georgewalton says:

        How exactly does one “blow it out” one’s ear? Is it painful?

        I suspect we don’t approach American foreign policy from quite the same perspective. Mine is rooted in political economy. Is your’s rooted in “right” and “wrong”?

        Or, perhaps, “good” and “evil”?

        Yoo was just doing what people like him were hired to so. But it is the American people who elected the folks who gave him his job.

        I say elect different people. People more well versed in political economy rather than morality. Morality is just a point of view. Political economy is about raw naked power.

        It’s about crony capitalism, Bilderberg, the CFR and all the stuff the corporate media lackies never discuss on Meet The Press.

        • rdwdkw says:

          Glenn Beck called, said you’re late for class. If you are more informed than everyone else, maybe you will give up your blog for us, huh?

          • georgewalton says:

            Why would you surmise I regard myself as more informed than you? I think you are confusing inflection with substance. I just want a discussion of torture to venture outside the usual stale arguments you read in the Washington Post and the Wall Street Journal; or hear on the News Hour and Meet the Press.

            In other words, I want the discussion to venture out into the more labyrinthian fonts that revolve around political economy, phenomenology, and ethical philosophy. For example, torture as understood by a deontologist and a consequentialist.

            But most important, torture as it is actually manifested in American foreign policy going back decades. The very heart and soul of American imperialism in other words. If you think torture is not at the heart and soul of U.S. policy abroad, I need to help you understand why you may perhaps be wrong.

            As, of course, I may well be. That’s why discussion venues like this are so vital: to make arguments.

    • JohnForde says:

      “Torture will be used if it is deemed necessary to use it. End of fucking story. ”

      You must really hate George Washington.

    • knowbuddhau says:

      Hey tough guy george, your words remind me of William Astore’s recent article at TomDispatch, the subject of my recent Deconstructing Myths of America diary.

      Who does the deeming, on what criteria, and against whom? Does it matter that torture doesn’t get good intel, that it radicalizes victims and their communities? Or is it more important, as I said to you weeks ago, that we be able to go ape on people whom the Executive slaps with the proper label?

      Excerpted from Tomgram: William Astore, The U.S. Military’s German Fetish

      February 18, 2010

      This idolization of the German military was a telling manifestation of a growing militarism within an American society which remained remarkably oblivious to the slow strangulation of its citizen-soldier ideal. At the same time, the American military began to glorify a new generation of warrior-leaders by a selective reading of its past. Old “Blood and Guts” himself, the warrior-leader George S. Patton — the commander as artist-creator-genius — was celebrated; Omar N. Bradley — the bespectacled GI general and reluctant soldier-citizen — was neglected. Not coincidentally, a new vision of the battlefield emerged in which the U.S. military aimed, without the slightest sense of irony, for “total situational awareness” and “full spectrum dominance,” goals that, if attained, promised commanders the almost god-like ability to master the “storm of steel,” to calm the waves, to command the air.

      In the process, any sense of war as thoroughly unpredictable and enormously wasteful was lost. In this infatuation with German military prowess, which the political scientist John Mearsheimer memorably described as “Wehrmacht penis envy,” we celebrated our ability to Blitzkrieg our enemies — which promised rapid, decisive victories that would be largely bloodless (at least for us). In 1991, a decisively quick victory in the Desert Storm campaign of the first Gulf War was the proof, or so it seemed then, that a successful “revolution in military affairs,” or RMA in military parlance, was underway.

      Forgotten, however, was this: the German Blitzkrieg of World War II ended with Germany’s “third empire” thoroughly thrashed by opponents who continued to fight even when the odds seemed longest.

      What a remarkable, not to say bizarre, turnabout! The army and country the U.S. had soundly beaten in two world wars (with a lot of help from allies, including, of course, those godless communists of the Soviet Union in the second one) had become a beacon for the U.S. military after Vietnam. To use a sports analogy, it was as if a Major League Baseball franchise, in seeking to win the World Series, decided to model itself not on the New York Yankees but rather on the Chicago Cubs.

      Nice incoherent, self-defeating, atavistic worldview ya got there, pal. Too bad it’s been tried and failed. When has wiping off blood with blood ever cleaned a single bloody hand?

  7. Scarecrow says:

    Astonishing and depressing that those who wrote this report must have realized they were dealing with a conspiracy and a subsequent coverup, given the missing e-mails, and yet the final editor gets to say, “nothing unprofessional going on here, just some bad judgment” even though the law was dead wrong, the research incompetent, the writers overcome with their own “extreme” ideological biases, a self-interested client pressuring the attorneys, and the whole matter emersed in what everyone must have known were indictable war crimes. Everyone is now tainted.

    • temptingfate says:

      Jumping in again.

      A nihilist would say that nothing can be done. Rather the argument he presented is that knowing the details is necessary but not sufficient. We need action which requires changes to the current system.

      • JohnForde says:

        You are very charitable to Georgewalton. I don’t get the sense that he sees our idealism as merely untethered to the practical. His tone is that our idealism, energy and efforts are unworthy. He is wrong.

        • georgewalton says:

          Like philosophical realism, political idealism reflects the weakest of minds.

          To imagine moral and political values can be reduced down to Right and Wrong reflects the most dangerous kind of thinking. It denotes the mind of the True Believer.

          With respect to moral and political values, we are all prejudiced. As dasein. We are “thrown” into a particular historical, culture and experiential smorgasbord at birth and then for many years are brainwashed as children to view the world around us as we are taught to. The conceit of the idealist is that we can then transcend this by considering only those ethical precepts that are [epistemologically, syllogistically] irrefutably rational. Human ethics is then assumed to be on par with, say, physics or mathematics.

          Instead it is moderation, negotiation and compromise that reflects a pragmatic sense that it is more thoughtful to embrace these if we are willing to acknowledge that, philosophically, we can only ascribe particular human behaviors to particular existential vantage points. And not instead to some essential or universial sense of Good and Evil.

          Democracy itself is the enemy of idealism. The very nature of democracy is predicated precisely on the assumption that we cannot know for certain what is The Right Think To Do.

          That is why the Tea Baggers are so dangerous. They too are idealists, purists, utterly convinced their point of view is the only one that counts.

          Scrap idealism. It is a self-delusion. And, again, a very dangerous one.

          • wavpeac says:

            You clearly do not understand my concept of idealism…which has everything to do with avoiding the cognitive dissonance created by dichotomous thinking. There are polarities for everything concept on earth. There is always some kernal of truth in any polar position…and this would also be true of idealism. Seems your treatment of idealism…is dichotomous…or the very dangerous black and white thinking you say you oppose.

            • georgewalton says:

              That is rather abstract.

              Why don’t you focus on a particular moral issue. Torture is fine. Tell us what you believe is the most reasonable and morally sophisticated manner in which to embrace it.

              How is it not dicothomous?

              For example, re torture, do you believe it is wrong in all circumstances? Do you believe we can definitively differentiate behavior that promotes tortue and behavior that does not?

              I don’t. Instead, my reaction to torture [as with most other moral issues] is ambiguous and ever shifting and changing.

              • Mason says:

                For example, re torture, do you believe it is wrong in all circumstances? Do you believe we can definitively differentiate behavior that promotes tortue and behavior that does not?

                Torture is unlawful and unjustifiable under any circumstances. Information obtained by torture is inherently unreliable and no one ever should rely on such information for any purpose. There is no ambiguity to discuss. PERIOD!

                • georgewalton says:

                  Torture is unlawful and unjustifiable under any circumstances.

                  How is this fierce proclamation any different from conservatives who insist that, “abortion should be unlawful…and it is unjustifiable under any circumstances!”

                  You still don’t get my point though, do you? Lots of folks historically have staked out their moral claims just as vehemently. Hitler, Lenin, Mao, Bush, Cheney and bin Laden, for example.

                  But this is different, right? Here everyone just knows the Right Way to think about torture. You are on the right side and everyone who disagrees with you about it is just plain wrong.

                  And it’s really not the issue of torture per se that I am talking about, of course. It’s the blight [and the danger] of idealism. All too often it is just a hop step and a jump from ideology. And armed ideology is bursting at the seams with torture. Only it’s never called that, is it?

                  Information obtained by torture is inherently unreliable and no one ever should rely on such information for any purpose.

                  Yes, i make an argument similiar to this above. But to insist torture is inherently ineffectual in garnering actionable intelligence is merely a supposition I am sure can be refuted empirically.

                  Everything is always embedded in a particual circumstantial context. And we all see the contexts from different vantage points.

                  So, we have to live with that as best we can.

                  • Mason says:

                    Yes, i make an argument similiar to this above. But to insist torture is inherently ineffectual in garnering actionable intelligence is merely a supposition I am sure can be refuted empirically.

                    It is not a supposition and it never has been refuted empirically. Any information obtained by torture would have to be independently verified by evidence obtained voluntarily from other suspects AND verified by investigators. Believe me, this is a dead issue decided long ago. Read Miranda v. Arizona.

    • georgewalton says:

      Yes.

      But nihilism is a serious philosophical perspective. It flows from a basic observation: there is no God. No God, no omniscient vantage point. No omniscient vantage point and who gets to say they have the most knowledge needed to decide what is or is not applicable in accumulating the behaviors needed to embody one’s “moral duty”.

      Is torture moral or immoral? No one knows. Why? Because no one can know. All such value judgments are merely subjunctive prejudices. It is like trying to determine whether abortion or capital punishment is moral or immoral.

      Regarding torture the best arguments to make are the ones many in the military do. They point out that torture is rarely effective because the man or woman being tortured will tell you they shot Kennedy or masterminded Leopold and Loeb’s “perfect crime” to get you to stop. This can send you on wild goose chases that waste valuable time and manpower.

      They point out in turn that exceptionally skilled psy-ops personel are much more likely to get the informatiion needed in the fastest time.

      Also, they point out that once the U.S. starts ripping up the Geneva Convention regarding the citizens of other nations, those nations will find it all the easier to rip it up when the prisoners of war are our sons and daughters, our father and mothers

      • MadDog says:

        …Is torture moral or immoral? No one knows. Why? Because no one can know. All such value judgments are merely subjunctive prejudices…

        An anti-philosophy that asserts there is no such thing as philosophy.

        One that justifies itself by asserting that ignorance must be valued as an equal to intellect because the speaker is ignorant.

        A common failing that occurs repeatedly with sociopaths.

        …Regarding torture the best arguments to make are the ones many in the military do. They point out that torture is rarely effective because the man or woman being tortured will tell you they shot Kennedy or masterminded Leopold and Loeb’s “perfect crime” to get you to stop. This can send you on wild goose chases that waste valuable time and manpower…

        When one has no morals because they can’t fathom the need for such or understand the social value of the same (see again, sociopath: “What is missing, in other words, are the very qualities that allow a human being to live in social harmony.”), it is again commonplace to resort to “efficiency” and “expediency”.

        Such “efficiency” and “expediency” like: “I’m hungry but have no food. Therefore it is appropriate to kill another person and eat them.”

        I’m guessing you think of all your “friends” as your “fine young cannibals”.

        • georgewalton says:

          I am certainly not trying to suggest that morals need to be disgarded, only that they are ever embedded in contingency, chance and change.

          Do you see this crucial distinction?

          Are you saying there is only one ethically sound argument regarding torture? Your own, perhaps? Do you feel the same way about abortion, capital punishment, the role of government, gun control, poronography, separation of church and state, conscription, affirmitive action, just war, human sexuality and on and on and on.

          Are you suggesting there is only a moral and an immoral way in which to grasp these things?

          Are you suggesting in turn that linking torture to imperialism and linking American foreign policy historically to both is…what…immoral, irrational?

          Well, let’s discusss that intelligently, okay?

          • Mason says:

            Are you suggesting there is only a moral and an immoral way in which to grasp these things?

            Regarding torture: Yes, it always produces unreliable information and it’s a war crime. The other issues you mention are irrelevant.

            Well, let’s discusss that intelligently, okay?

            There is no issue to discuss.

            • georgewalton says:

              You don’t know that torture always produces unreliable intel. How could you? Do you have access to every interrogation that was ever conducted? I have read articles about instances where it has in fact led to actionable intelligence.

              Personally, I am opposed to torture based on the arguments I noted above. But I would never be so arrogant or naive as to say I will never come across a set of circumstances that changes my mind.

              Your own mentality, “there is no issue to discuss”, is fascist. Just as is the mentality of those reactionaries who insist that, with respect to a woman’s right to choose an abortion, “there is no issue to discuss.”

              For them, it’s simple enough: it’s murder.

              And who is to say that an aborted fetus is not in turn “tortured” when it is disposed of? You?

              Everything is always more complicatec than idealists will ever admit.

              But it sure feels good knowing that you are always right, doesn’t it?

              • Mason says:

                But it sure feels good knowing that you are always right, doesn’t it?

                Don’t insult my intelligence. I am more than casually acquainted with wandering down the endless criss-crossed halls of ambiguity and knocking on the doors of empty offices looking for directions. I do not see most issues as black or white and I am not an authoritarian. I also do not play well with people who play rhetorical games.

                Torture is not ambiguous. To claim otherwise is to adopt a right-wing talking point and feign serious thinking by using silly terms like “finely nuanced.”

                That is all I have to say regarding this matter.

                • PJEvans says:

                  georgewalton doesn’t really have much to say here that isn’t based somehow on a right-wing talking point. Hse should have learned by now that hse has to be able either to show hir work or to argue convincingly that everyone else, including EW, is wrong. So far, hse hasn’t done either.

              • bmaz says:

                Actually, torture alone does always produce unreliable intel because there is no basis for ever discerning its veracity in light of the fact it was produced via extreme coercion. There is a huge difference between reliability and veracity. Torture may occasionally, although history shows it to be not be high frequency, produce what turns out to be credible (possessing veracity) information; but that is a far different animal than saying it is reliable at the instant it is obtained.

      • JohnForde says:

        I’m kind of stunned that you would identify as a Nihilist.
        The best part about nihilsm is it’s utility in reputation management. Are you on LinkedIn?

        • georgewalton says:

          Not Nihilist—nihilist. To capitalize it is, philosophically, preposterous.

          What do you imagine a nihilist believes—that there is no meaning and everything is permitted?

          Alas, I rarely come across folks who don’t broach it straight out of Hollywood. You know, Hells angels, Hitler, Republicans and Mickey and Mallory, the natural born killers.

          Tell me please you are more sophisticated than that.

          You are, aren’t you?!! ; o )

    • mattcarmody says:

      I think the results of the Nuremberg Trials are what gave these people the confidence that nothing was going to be done to them. The number of actual war criminals who escaped justice is staggering; people who were active enthusiastic Nazis were visibly involved in the government of West Germany, in the US space program (Col. Werner von Braun and his entire contingent moved to Texas), in the UN (remember Kurt Waldheim anyone?). Then there were the Japanese war criminals who went on to serve in Japan’s postwar governments after carrying out their experiments in Unit 731 and killing American POWs.

      Yeah, these people knew nothing was going to happen to them and now the ones who follow them will be more emboldened by the inaction, no, the positive commission of war crimes by the president and his justice department in refusing to perform their duties under the US criminal code and the international criminal code. I hope some government with more of a moral compass decides that it’s time to bring the Behemoth (in Franz Neumann’s sense of the word) to its knees.

        • mattcarmody says:

          Well aware of the genesis of these people and the people, still connected with the USG, who were responsible for it and complicit in it. Dr. K comes to mind as a young US Army captain.

  8. GregB says:

    I always simply return to the case of the deleted/destroyed videos of torture.

    If these techniques were so dam effective why in the world would they have destroyed the video evidence of this marvelously effective legal program?

    Because anyone actually seeing the video evidence would realize that it is torture and that it would shock the conscience of any human with a conscience to shock.

    America has become an unchained monster.

    • bmaz says:

      Because anyone actually seeing the video evidence would realize that it is torture and that it would shock the conscience of any human with a conscience to shock.

      And that it didn’t work; did not produce usable intelligence. If there was anything usefulwhatsoever on the tapes, and there were a LOT of hours destroyed, that indicated usable intelligence was being obtained through the “EITs”; the tapes would not only have been preserved, they would have been trotted out to justify the program.

      • Mary says:

        And then there’s the fact that, at the shock the conscience level of analysis, there’s no mention of the American SHOCK at the Abu Ghraib pictures. How do you have those very things that are in the memos show up in photographs that shock the world, and more importantly for your legal analysis, the country (even at that time a not yet complete depraved Lindsey Graham) with constant news coverage, Congressional hearings, and Executive branch promises of trials and near riots and some riots worldwide – and yet, you still can’t quit scratching your crotch over what shocks the conscience?

        Well – what you do then is to change the national conscience. You tell the citizenry that it isn’t shocking – over and over, by rolling revelations, but MSM co-opt, by constant reassurance from the highest institutions of the land that what is being seen isn’t torture and that in case after case after case, there’s nothing to see here except state secrets necessary for national security.

        Take a look at what Abu Ghraib did for our national security and then explain how torture saved us all.

    • Mason says:

      I always simply return to the case of the deleted/destroyed videos of torture.

      If these techniques were so dam effective why in the world would they have destroyed the video evidence of this marvelously effective legal program?

      Because anyone actually seeing the video evidence would realize that it is torture and that it would shock the conscience of any human with a conscience to shock.

      America has become an unchained monster.

      The United States of America is a rogue nation willfully and intentionally violating international law on a daily basis, including committing war crimes and crimes against humanity on a massive scale that are punishable by life in prison or death and the right wing not only takes pride in doing so, it celebrates murdering innocent women and children.

      The United States of America is a terrorist nation that threatens the lives and safety of all citizens of the world. Indeed, it is the greatest threat to world peace in the world today and must be stopped, no matter the cost.

  9. Mary says:

    Why do specific details matter to the point that views that perceive the effort to be more or less futile have no relevance?

    Because: Those who do not learn from their past are doomed to repeat it (not original) and most of America still has a narrative in front of it that does not acknowledge how torture was used to put us at war on multiple fronts, set us up to oversee sectarian cleansing(murders) on a massive scale, bear direct responsiblity for the creation of hundreds and hundreds of thousands – reaching into the millions – of refugees, and become a nation that disappears the children it hasn’t bombed as collateral damage – all without any formal declaration of war or identification of enemy other than “those people” If no one ever tries to hammer on the specific details that change the public narrative, then they are embracing the narrative. You either go quietly into the night, or not.

    A view that efforts to do anything (not saying don’t do A, but do B instead) is futile isn’t “irrelevant” it’s just that it is only relevant to those that are post-decisional on going quietly.

    • Starbuck says:

      This is outlined in great detail in the book: “The Imperial Cruise” which is on the book salon list for March 7. It is a must read.

      Obama appears a born again Teddy Roosevelt, seeming to be in line with the “Follow the Sun” beliefs of the Aryan/Anglo Saxons of that period. Roosevelt’s secret negotiation with the Japanese (which is the central theme of the book) set up conditions that persist into this century.

      • qweryous says:

        “This is outlined in great detail in the book: “The Imperial Cruise” which is on the book salon list for March 7. It is a must read.”

        I read this book recently and highly recommend it.

        It provides an easily accessible source of history on some of the topics discussed here concerning how the U.S. has been ‘doing business’ over seas.

        The book does contain some ‘poignant’ photographs. Including an actual ‘water treatment’ in the Philippine Islands ca. 1900 by US troops IIRC.

        I have been working on a Seminal Diary on this book (which has been delayed by some of the recent events), and am pleased to see that it will be on the Book Salon.

  10. klynn says:

    Missing videos of EIT’s, but they did not depict torture we are told.

    Missing emails on development of EIT policy, but they were not about torture or a knowledge of EIT’s as torture we are told.

    Missing body parts of three dead detainees. They were not tortured we are told.

    Then why are they missing?

    Mary,

    Let’s also add in the fact that the supervisory position of OPR (and OLC) was held, in unbroken line, from Ashcroft through Mukasey, by men who were intrinsically tied to the Executive branch authorized torture and disappearances. And let’s see – hmmm, were those torture tapes that were still around when Bradbury wrote his memo, but didn’t review the tapes, still even around for Mukasey when he made his review? Gee – kind of a different animal to opine on an opinion when the evidence demonstrating it was based on false information has been destroyed, along with a boatload of emails.

    Is there any room for “We the people” to make the charge of obstruction?

    So you have Main Justice and OPR operating for the investigation in an atmosphere of Gonzales & Mukasey involved in the torture issues and seeking to minimize or deep six investigations, followed by a President who publically declares that DOJ’s policy vis a vis Executive branch torture and criminal behaviour will be to “look forward, not back” That’s the ultimate policy set by DOJ – it’s the reason there is such a thing as a Bivens action, bc that is always going to be the ultimate policy of a Criminal Branch when they control the prosecutorial function.

    (my bold)

    Mary,

    Is there ANY chance you and bmaz could do a post just on that point?

  11. tjbs says:

    Torture/ Murder/ Treason
    If the republicans were the Democrats you can bet they would be carrying out a RICO investigation.

    A large percentage of the population,who will be outraged, have no comprehension of the torture chambers or the death that occurred while under questioning. No body ever said no or that’s enough to the sickos dishing out the TREASON rather you could guess the boundaries were pushed every time until some guy ,being questioned, died. Then they backed off just a little.

    This can only end good for cheney if he still controls that possible missing nuke from Minot as the Trump card.
    Justice will be served .

  12. JohnForde says:

    Sumida Haruzo.
    He committed the crime of ordering people to be waterboarded. We executed him.
    One deterrent is to constantly remind all these perps: Cheney, Yoo, remind all of them, face to face, through the mail, even confronting their families, that Sumida Haruzo was hanged for doing the exact same thing they have done. And although the probability is low, they will forever face the same possibility.

    • wavpeac says:

      I like that idea simply for the fact that it will stir fear. Even if they are sociopaths they will have the fear that they could get caught. Which is about the only emotion that sociopaths respond to. This kind of pressure at the very least educates the public and has the potential to cause them at least some consequence for their choices. Consequences ARE the answer to nihilism. Certain truths are written into the fabric of reality.

      Morality?? Who knows but there is cause and effect, there is validity in biology, there ARE invariant relationships in behavior. One such invariant is that “change is inevitable”. In regard to torture, we may not know all the truths about it. But I am certain they exist and that the logic used “if torture is deemed necessary it will be used” has some truth to it. In fact the same could be said for any behavior that we do not advocate as humans due to it’s consequences such as “theft, rape, murder, and war”. There is a problem with the statement “deemed necessary” because the word necessary is simply a judgment, not a statement of fact.

      Necessary is to breathe, to change, to grow, to die, and to pay taxes. But it cannot be applied in any way that is valid to the idea of torture. We are having a discussion about the laws of this land, and how they are being applied. This is not a discussion about the morality of these laws, but a discussion about the application of law. Period.

    • mattcarmody says:

      Nobusuke Kishi, imprisoned as a class A war criminal, prime minister 1957.

      Takeo Tamiya, former president in 1950 of the Japanese Medical Association, one of the creators during WWII of Unit 731 in which at least 3000 Chinese and Soviet citizens died, including many children. MacArthur reached plea bargains with this monster and others under which they were immune from prosecution in return for sharing their findings with the Defense Dept. Wanna bet we incorporated some of this monster’s findings into our enhanced interrogation techniques sanctioned by this administration?

      • Mary says:

        I’ve been struck over and over by the excuses some wanted to give, that the CIA just wasn’t that versed in intel and so it “fell into” these criminal acts – and yet, just the other day there was an article about how the CIA allows it’s experienced intel crew to moonlight in the corporate world, raking in money from highly partisan sources with banks of lobbyists, all for the purported purpose of sharing the CIA interrogation skills (that don’t involve torture btw) wtih those corporations. And none of it declared “stateubersecret” Apparently the only interrog tactics they are worried about al-Qaeda learning about involve torture – the interrog tactics that actually work well enough for corporations to pay for them (pay directly to CIA operatives who are then embedded at CIA with dual loyalties) are protected only by the fee schedules tied to them.

        • mattcarmody says:

          When Richard Helms testified (lied) to the Church Committee that the records on MKULTRA and Operation Mockingbird, and the other nefarious mind control experiments had been destroyed, George H. W. Bush was DCI. I never believed that CIA would destroy such meticulously gathered techniques and when stories began appearing about the techniques being employed all I could think of was John Marks’ The Search for the Manchurian Candidate.

  13. vergniaud says:

    To george and the others who want to say that discussing the details of war crimes and treason is useless — and yet still want to come here to discuss them — keep in mind that we did recently impeach a president over a b*** j**, and that President was even disciplined by his bar association! Can it really be true, given that, that there inevitably will be no repercussions for hack attorneys (one now a judge!) arguing that torture and murder are not crimes if the President orders them? I’m not so sure. Beyond that, the Bush people — like Henry Kissinger — are making their all their travel plans with a wary eye to the possibility of arrest. Perhaps they’ll never be prosecuted here, but you never know.

  14. emptywheel says:

    Hey folks?

    I’d prefer if we did not let the question of nihilism destroy what is otherwise an important conversation in this thread, if you know what I mean!

    ;-p

    (Now if only we could get freep up early enough for this kind of stuff…)

    • georgewalton says:

      Nihilism is not necessarily destructive at all. And it can certainly be constructive in discussing moral and political narratives.

      It deconstructs idealism, for one thing.

      • bmaz says:

        Okay folks, this is actually a side discussion that has some merit; however, Marcy is right, this is a very important thread and it is time to get back to the details of the topic at hand. Another day and subject and I would have no issue in letting this discussion take off, but that is not today. If you really want to ruminate on this now, that is cool; one of you do a Seminal post for that purpose and we will put a big fat link here so everybody can join in (and there is obviously interest). But for this thread, let’s get back to the topic please!

  15. xargaw says:

    We might as well face it. There is no longer any accountability in DC unless you are a Democrat that gets caught in an adultrous affair. Lying a country into War, torture, steeling, bribes, perjury, lying outside a courtroom, are all just fine. If you are a Republican, some of these acts are actually rewarded in your Party. The Obama Administration continues to miscalculate the will of the American public. The desire for fairness, justice, regulation, healthcare are strong and this Administrations unwillingness to fight for these things will assure that this Administration and this Congress will be voted out at the earliest opportunity. The public at large is not very bright. They will likely vote in a group worse than this one, ala Scott Brown, but when they are not happy, they vote for a new crop even if that crop is worse.

  16. Mary says:

    Another interesting email is the one Jason Leopold links in the earlier thread

    comment

    http://emptywheel.firedoglake.com/2010/02/20/opr-working-thread-two/#comment-221315

    links to this email from the aclu site

    http://www.aclu.org/files/assets/2004_07_08_Letter_to_Harvard_Faculty_re_Jack_Goldsmith_Appointment.pdf

    This is the same David Leitch who has gone on to be Ford GC, right? Between Yoo’s mocking ‘boo boos’ and this email from Leitch to Goldsmith, mocking the concerns raised about Goldsmith and toture, I’ve become disabused of the concept of DOJ and Exec branch lawyers as a bunch of frat boys – it’s more like kindergarteners who are overdue for nap time.

    And they’ve gone on to things like GC at Ford, Counsel at Chevron, GC for Pepsico, GC at Lockheed, teachers at Boalt and Harvard, etc.

    At least we know that when this country needs a qualified cadres of legal minds to generate chants of “nuh uh, did not did not did not” we’ve got talent.

    *sigh*

  17. Mason says:

    When crucial evidence within the custody and control of a party to litigation disappears, the opposing party is entitled to the benefit of a presumption that the missing evidence was destroyed because it damaged that party’s case.

    I see no reason not to apply that presumption here. Yes, indeed. Those missing emails are a smoking gun and Yoo and Philbin are criminals.

  18. qweryous says:

    E.W.- Back to your post:

    This link does not go where intended:

    ” Then there was the remarkably bad NYT story from June 6, 2009,”

    L. Patrick Gray-erm-and I couldn’t even read your post.

    • wavpeac says:

      I was wondering if they were unrecoverable…what does that mean? I am tired of hearing about how they couldn’t recover e-mail that should be by law recoverable. What process does that mean they went through to get rid of them? Why can’t that be proven as misconduct?

      • Mason says:

        Why can’t that be proven as misconduct?

        Because they didn’t really want to find that treasure trove of damning evidence?

      • JasonLeopold says:

        Yeah, exactly. They had to go through some sort of process to get rid of them! Assuming when the report refers to not recoverable that whoever was looking for them went through the process of trying to recover it from back up tapes.

        Also, if there was an email from Yoo to Addington/Gonzales or anyone in EOP/OVP than maybe those are available or were recovered via CREW’s settlement? I know that sounds totally unlikely. Are there any rules for preserving emails from DOJ/OLC? I have to check that out.

    • rosalind says:

      The footnote discussing the missing e-mails is confusing to me. OPR says they were given direct access to the emails & computer records. They then say “we were told most of Yoo’s email records had been deleted and were not recoverable”.

      Who told them the records were deleted? Is it OPR was given the computer records but not the actual computers? i.e. they only received what OLC gave them, and did no forensic recovery themselves?

      Discussing the recovery of Goldsmith’s missing emails, the language is: “Although we were initially advised that Goldsmith’s records had been deleted, we were later told that they had been recovered and we were given access to them.” Again, this sure reads like OPR was not doing any physical recovery, all claims of what emails existed or did not exist seem to lead back to OLC.

      Am I mis-reading this?

      • fatster says:

        No, you are not mis-reading at all. They are in the process of mis-leading. Or trying to. Their arrogance is staggering, isn’t it?

      • JasonLeopold says:

        That’s the question I have and it seems a bit murky. I’m going to ask DOJ what methods they went through, if any, to try and recover those emails. It sounds like, the way it’s phrased at least, that OPR asked for emails and got a memo that said, “sorry, emails are deleted” and OPR said, “OK. Thanks.”

    • fatster says:

      Absence of identification. That’s the trick, isn’t it? They don’t identify who claimed the e-mails were deleted and who proclaimed certain e-mails were not recoverable. They don’t identify who decided/discovered/whatever that certain e-mails were indeed recoverable and who produced them and when, There are no names. We are not furnished with anything resembling a chain-of-possession or -responsibility. So: there’s nothing to see here folks. Too bad. Now move along.

      Also see burnt @ 108.

      • Gitcheegumee says:

        Here’s a link with some interesting info about some other missing dates and the proclivity to tape over some existing emails:

        Bush deleted email archive system, recycled backup tapes | ZDNet …Jan 22, 2008 … But let’s talk about Government IT. There used to be a system called Automated Records Management System (ARMS). … White House technology officials proposed two different … The tape does not record those e-mails created and deleted … Intelligence solutions are widely recognized as market . …

        government.zdnet.com/?p=3618 – Cached – Similar

      • Jeff Kaye says:

        The failure to further document the issue of the missing emails, relegating the issue to a footnote, is one of the many short-comings of the OPR report.

        What I’ve to say thus far, FWIW:

        While many will look at the legal aspects of the case, at the Congressional investigations supposedly to follow, etc., the overwhelming effect of reading the Office of Professional Responsiblity (OPR) material (see, for instance, Emptywheel’s site, where Marcy Wheeler and a number of associates are dissecting the various components of the OPR report) is of a totally bankrupt, politically criminal government. These people operate at the moral level of an Eichmann. They are infected with the virus of torture, which in its later stages, metastasizes into feelings of omnipotence, delusions of grandeur, malignant narcissism, and outright sociopathy.

        I don’t believe I’ve seen such depictions of moral depravity at a fundamental level since the shenanigans of the distaff state of Salò.

        Meanwhile, much of the population believes that Barack Obama, Eric Holder, and their associates are somehow going to change all this, even as they have taken clear steps — not least placing David Margolis in charge of defanging the OPR report (which is from my standpoint underplayed anyway… letting Stephen Bradbury off, for instance) — to make sure none of the governmental and military/intelligence criminals are ever held to account.

        This failure to hold people accountable because the extent of U.S. criminality and illegal actions would become known has poisoned all political action in Washington, and no doubt extends to other components of government, and other issues (as in the recent failure to pass substantive health care reform).

        The OPR report is a symptom of the extreme reactionary content of these political times. It is a gauntlet thrown down to the society at large. Are we really what these criminals represent? How can the mainstream press be so morally obtuse that they are not screaming about this from day one? What use a society such as this?

        • Gitcheegumee says:

          Jeff, there is an interesting little piece in the Times which refers to the paralysis at the top as a result of Obama’s “Chicago Mafia”. It may interest you.

          Obama’s ‘Chicago mafia’ blamed for paralysis at the top‎ – 12 hours ago

          Military commanders were astounded when they participated in Afghanistan war councils and referred to them as the “Chicago mafia”. …

          Times Online – 16 related articles »

        • bobschacht says:

          The OPR report is a symptom of the extreme reactionary content of these political times. It is a gauntlet thrown down to the society at large. Are we really what these criminals represent? How can the mainstream press be so morally obtuse that they are not screaming about this from day one?

          Al Gore, with Chris Barr, in a speech dating to January 2006, noted that the Bush administration was, in effect, daring the Democrats to impeach them (transcript, p. 14, near end of the speech):

          I endorse the words of Bob Barr, when he said, “The President has dared the American people to do something about it. For the sake of the Constitution, I hope they will.”

          VP Cheney continues to dare us to do something about it.

          Will we?

          Bob in AZ

    • cinnamonape says:

      And what the heck is going on here anyway? Does the DOJ use the same fookin’ archiving system as thw White House? Why should the OLC have lost emails? Is this loss exclusive to Yoo and Philbin and Goldsmith? Or was it something that occurred generally with the DOJ. Why is there not some similar loss to later OLC staff if this was endemic.

      It seems to me that the loss of emails is, interestingly, exclusive to these individuals. That smells of criminal destruction of evidence to me.

  19. qweryous says:

    E.W, more link help needed:

    “emails and included the damning Comey ones, but spun them just as Steven Bradbury would have liked them, as an attack on Comey rather than what they were, an indictment of the drafting process.”

    EDIT 2: (Put it back in the right order) Both of these go the same place?

    EDIT: Compulsively clicking all links to follow the trail through the weeds- am I alone in this today?

  20. Gitcheegumee says:

    According to the data provided courtesy burnt,the start date for the Bybee One drafting process is April 11,2002.

    A scant three months prior, on January 22,2002 , Yoo gave a speech to a Korean group(spelled Corean in the text) in Pennsylvania. Pretty interesting,imho.

    (Btw, it was noted in a NYT interview with Yoo last December, that his parents are both psychiatrists,fwiw.)

    John C. Yoo SpeechJan 27, 2002 … I would like to recognize my wife, Elsa Arnett, who has come with me tonight from Washington, D.C., and my parents, Dr. John Yoo and Dr. …

    http://www.icasinc.org/2002/2002w/2002wjcy.html – Cached – Similar

  21. JohnLopresti says:

    One place I read, described the timeframe of Jessalyn Radack’s DoJ missing emails around March 2, 2002.

    • Hmmm says:

      One place I read, described the timeframe of Jessalyn Radack’s DoJ missing emails around March 2, 2002.

      OT-ish: She complained in a RecList diary at Large Orange the other night about DoJ and the Bar having nailed her but failing to do so to Yoo and Bybee.

  22. wavpeac says:

    Then they just move on…like “oh well”. They were “scrubbed” and that takes computer knowledge, it takes focus, it takes a plan. I wish I was in good with my ex…who helped design and implement the csp program for the White house, many, many years ago. I am sure it’s a completely new system today…but I’ll bet he could shed light on this.

    • burnt says:

      Then they just move on…like “oh well”. They were “scrubbed” and that takes computer knowledge, it takes focus, it takes a plan.

      I’ve run several different flavors of email servers and email/calendaring servers through the years. Our backup schemes were never setup to preserve every single message moving through the system. We were more concerned with disaster recovery or restoring an individual’s accidently deleted folders. We’d take a snapshot of the system in the wee hours of the morning and put it on tape (these days it’s often an offsite array of hard drives instead of tape). We’d keep 3-12 months worth of tapes and rotate them through.

      In this sort of scheme any message not on the server when we took the snapshot would not be preserved. If you deleted a message from your “Sent” folder immediately after you sent it it would not be backed up. If you received a message after the snapshot was taken and deleted the received message before the next snapshot that message would not be backed up. I would expect that entities such as Justice, the Defense Dept., and the White House have more expensive and comprehensive backup systems designed to preserve all messages since their IT depts. allegedly have to comply with various laws with respect to government records.

      So, how is it possible for these messages to be unrecoverable?

      1. We could assume a backup system like I described above and Yoo and Philbin knew they could defeat the backup system by immediately deleting messages. I suppose if one compulsively checked one’s email it would be possible to stay on top of things and delete the damning emails.

      2. The IT staff were flying without a net and not backing anything up. Picture the IT staffers when the inevitable disaster struck meekly telling their bosses, “uh, well, we had such faith in our hardware and software we didn’t feel it necessary to back things up.” Not bloody likely.

      3. The messages were backed up and someone ordered the IT staff to lose the tapes for a certain range of dates. I’m not much for conspiracies but I haven’t met many incompetent nerds in my time so my money is on three.

      Has anyone ever asked the IT grunts responsible for maintaining Yoo’s and Philbin’s accounts to explain what went wrong? If so, were they under oath? Rep. Conyers? Sen. Leahy?

      • PJEvans says:

        Scenario 2 happens, but usually at someplace like a small business.

        [I only know about this because I know someone who had it happen – they had a massive hard-drive head crash (Memorex had to fly heads in from Santa Clara, b/c they had to replace all of them on a 300-MB platter pack), and there was no current backup because the operator had not been doing it on schedule (Friday nights … and the crash was on a Friday night).
        It was a spectacular head crash: four of them went through the oxide layer into the aluminum underneath, and those platters look, literally, like the rings of Saturn. The drive never worked quite right afterward. Best guesses are that the heads lost separation somehow, or that there was a power glitch and they failed to retract (or both at once).]

      • JasonLeopold says:

        Thanks so much for explaining the technical issues related to the emails. We heard about this during the purge of the Bush White House emails. And I think the same thing happened with some other government offices as well with regard to missing emails. Personally, I forgot all of the technical issues associated with how to wipe them clean so the briefing is really helpful

        • bobschacht says:

          The comments on technical details of the missing emails got into the weeds a bit, and IIRC covered more territory than burnt’s comments. I don’t think burnt was hanging around at that time, so I’d be grateful if (s)he’d review those diaries. I don’t have a handy list of them, or I’d post them here.

          Bob in AZ

          • JasonLeopold says:

            I’ll search for them, Bob. I also went over to CREW’s website to see if there was anything with those dates that they recovered or if there was ever any about DOJ but I didn’t find anything. They have been posting recovered email files, however, on a regular basis

      • JasonLeopold says:

        what’s interesting to me is that if Yoo/Philbin were deleting their emails that way, and assuming they did it without being told to do so, wouldn’t that suggest they knew that what they were aware they were doing something wrong in writing the torture memo? To remove any trace of evidence of their work during that time frame would make me think that they had a guilty state of mind. Yoo is so self-righteous in his beliefs that I cannot believe he would make such a move on his own.

        I may have watched one too many Law & Order episodes.

        • bobschacht says:

          My hypothesis is that when Yoo/Philbin left the DOJ, they decided to leave no footprints.
          Hypothesis #2 would require a careful scrutiny of the chronologies to reveal the point at which Yoo, while at the DOJ, realized his vulnerabilities, at which time he might have decided to cleanse his files– probably keeping his own (portable) copies.

          Bob in AZ

          • JasonLeopold says:

            That’s interesting, Bob. I had also heard, by the way, that Goldsmith kept a separate file of his own emails after he left DOJ and took it with him. Not sure if that means all emails (I assume the ones dealing with the memos are classified?) or if it’s even true

  23. Gitcheegumee says:

    The New York Times:

    Do you regret writing the so-called torture memos, which claimed that President Bush was legally entitled to ignore laws prohibiting torture?

    No, I had to write them. It was my job. As a lawyer, I had a client. The client needed a legal question answered.

    When you say you had “a client,” do you mean President Bush?

    Yes, I mean the president, but also the U.S. government as a whole.

    But isn’t a lawyer in the Department of Justice there to serve the people of this country?

    Yes, I think you are quite right, when the government is executing the laws, but if there’s a conflict between the president and the Congress, then you have to pick one or the other.

    Torture’s Best Friend: An Interview With John Yoo – TruthdigDec 29, 2009 … 2009/12/29 – The New York Times picks the brain of John Yoo, who compares George W. Bush to Abraham Lincoln and says “It was my job” to …

    http://www.truthdig.com/…/tortures_best_friend_an_interview_... – Cached

  24. JohnLopresti says:

    Also possibly of relevance: the November 3, 2008 deposition of Connell in Columbus, though press reported he was farily constrained in depo. One article depicted Connell as having assigned counsel by KRov.

    A few days prior to the depo, defense counsel moved to quash; press, at that moment as the pressure and proximity of the depo neared, depicted Connell*s presence as one continuously apparently hyperemic about the face, as in embarrassment. Although ostensibly Connell seemingly did things like build B2000 website, he also reportedly was the first IT outside contractor permitted to build sites behind the House of Representatives firewall for ~4 House committees and ~2 in the Senate. I wonder if DoJ let contracts to GovTech, one of Connell*s outfits. In the Ohio case, complainants* counsel reportedly emerged from depo1 prepared to petition for more depos of the informational witness; Connell was not a defendant per se nor an accused; however, there are numerous articles reporting a few other Republican IT persons as prepared to provide complainants* counsel with corroborating evidence or perhaps only hearsay. Complainants* counsel, acting on confidential information from some {~}IT person inside the McCain2008 campaign, sent a communication to Mukasey very much resembling a request for bodyguards for the witness. The election law site at Ohio State has an ample page on that unrelated matter, so, only maybe OT. Links purposely in abeyance, given my weekend penchant for animist interpretations of polity today. fp has earned his moment of rest.

  25. JohnLopresti says:

    Also way offtopic, three conservative outfits have pursued an initiative to have Garzon*s adjudicatory privileges suspended; the issues relate to rivalries rooted in 1937, though, likely add a distraction factor in a matter such as the investigative action he has pursued with respect to at least two of the DoJ counsel named in the instant opR report.

  26. rosalind says:

    programming note via dkos:

    Marcy Wheeler (emptywheel) and Joan McCarter (mcjoan) will talk over the week’s events tonight, 5:00 PST / 8:00 EST at Virtually Speaking and on Blog Talk Radio.

  27. Citizen92 says:

    Now that Al Haig is dead, can we expect any more Nixon-era secrets to slip out?

    As EW will remember from reading “31 Days” it was Haig who tried to take all the White House records, claiming they were Nixon’s personal papers.

  28. Jeff Kaye says:

    I also liked what Chris in DC had to say about the larger issue of Cheney running around trumpeting his position on torture. I think no one’s said this better (emphasis added):

    Cetamua asked whether future administrations could prosecute Cheney and others for war crimes even if this one doesn’t. I replied that this was theoretically possible (many of these crimes have no statute of limitations), but that the problem with delaying any kind of accountability for high-level misconduct is that, as time passes, the misconduct is seen as condoned by society and thus becomes much more difficult to punish.

    This is especially the case where, as here, the establishment mantra throughout that time is that prosecuting the conduct is “criminalizing politics” (when, in fact, the precise opposite is happening: politicizing crime). In fact, establishment acceptance of this cynical distortion is even more harmful than mere reluctance or refusal to prosecute, because framing the criminal activity in a purely political context allows it to become openly advocated in mainstream forums by the political factions that most benefit from a failure to prosecute (e.g., Dick Cheney).

    The outcome, then, of the politicization of crime caused by the “criminalizing politics” meme is that the debate shifts from whether the activity is reprehensible and punishable to whether the activity is smart and desirable. Hence, we see the continuing, unashamed arguments from right-wingers not only that brutal torture is not a crime (when done by or for the United States), but that torture is in fact wise and imperative national security policy, with its opponents cynically cast as weak and unserious for even suggesting otherwise.

    • fatster says:

      Thanks for linking us to the article, Jeff, with powerful arguments about the on-going obfuscation and failure of courage and commitment at the highest levels.

      And on the Rahm front: Let us bow our heads in prayer, brothers and sisters, that Cenk’s hunch is right on.

      • Loo Hoo. says:

        Hallelujah! (While listening to Marcy and McJoan)

        btw, where the hell is Seymore Hersh’s book he promised us with info from lots of the Bush/Cheney folks??

  29. readerOfTeaLeaves says:

    It sort of makes you all the more curious about what was in the Yoo and Philbin emails that got deleted, huh?

    Perhaps something along the lines of:

    You went into jail started this report in the summer. It is fall winter now. You will have reports to write: unfortunate legal errors, explanations for why your former DoJ lawyers were such weenies they became stenographers for torture stories to cover–Iraqi elections and suicide bombers, biological threats and the Iranian nuclear program. Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. Come back to work–and life. I’m with Bob Schacht @11: the BushCheney cabal made torture appear to be ‘normal’ and somehow acceptable.

    And now DoJ has done a whitewash.

    Beyond deplorable.

  30. joanneleon says:

    Disappearing emails — isn’t that alone an actionable offense?
    —————————–

    As with many other times before, I don’t have anything substantial to add to this. I wish I were more able to help out with this effort and to contribute. For now, I’ll just leave this here, as witness, and for the record will say that I am reeling from all of this, and what it means for my country.

    I’m reading. I’m watching. No doubt, many others are too. I’ve seen the references and I know that others are paying attention to what is happening here.

    Thank you — all of you — for your work and for not letting this pass without investigation and comment. It would be a lot easier to just have a drink and watch the Olympics and ignore the whole thing. But you are not doing that. I thank you for that.

  31. Hmmm says:

    Side question which may be mildly demented — “Boo Boo” has been stuck in my head. If detainee AZ = “Boo Boo”, would there also have been a “Yogi Bear” subject, to whom AZ was sidekick? OBL himself? Not trying to be funny, just that Yoo and some of the others are roughly my age cohort and might, perhaps, have been thinking of the same thing.

    Edit: Point being: Does “Yogi” or”Yogi Bear appear anywhere, or do any redactions fit that?

    • rosalind says:

      believe me, that whole scenario keeps running through my head: Hey Boo Boo, here comes your pic-a-nic basket filled with insects just for you!

    • prostratedragon says:

      I’m so glad you took up the burden of asking this.

      (Another member of the cohort, who thinks that this kind of stuff makes what they do all the more repugnant, not “funny.”)

      • bmaz says:

        I am knee deep in a post that is substantially about Margolis and the inherent bogosity of the OPR setup. That article on “Yoda” is part of it. Margolis is likely a great guy – if you are in the DOJ. But he is a lifer hack that cares far more about the precious reputation of his lifetime department than he does about accountability and protection of the public. In short, the man is a menace to the rule of law.

      • Loo Hoo. says:

        It’s just too hard!:

        Amazingly, however, Margolis was not persuaded. “Our analysis leads us to conclude that no actual conflict of interest exists,” Margolis wrote. He stated that nothing in Gallion’s letter had addressed “what the direct and predictable effect” of the Goff litigation would be on “the financial interests of USA Canary or her husband.”

  32. orionATL says:

    breaking-

    uc berkley law professor,

    john yoo,

    apparently designed torture even as he was devising legal sophistry to protect torturers.

    been doing hvac calculations – not fun and not a time to get
    distracted, even by incipient dictatorship.

    ew writes:
    “but reports of the anxiety about emails …”

    this paragraph highlights a yoo email comment that will become infamous,

    which will, in lawyers’ lingo,

    memorialize john yoo for time immemorial.

    an american prisoner, abu zubayaid, held in strictest confinement,

    is referred to by john yoo as “boo boo”.

    is this useage our american phrase for a child’s mild hurt or injury?
    yoo displays his personality here; we learn what kind of man he is.

    but of far greater consequence,

    herr doctor professor yoo seems to be suggesting torture strategies ( is boo boo afraid of certain insects?).

    torture,

    once allowed to run,

    turns out to be FUN.

    and can be played by anyone

    connected to tje bush whitehouse.

    yoo wants to play,

    he seems to say.

    i have long belived that the bush whitehouse likely viewed torture videos,

    and did so with pleasure.

    seems to me that herr doctor professor yoo really got into his homework.

    remind me-

    which very expensive law school trained “boo boo” yoo?

  33. rosalind says:

    (really interesting hour on Blog Talk Radio, Marcy)

    (and for the Toyota Files: Toyota Motor Corp. officials bragged last July about avoiding a costly whole-scale recall of sudden acceleration complaints, a document turned over to congressional investigators shows.)

  34. Citizen92 says:

    Speaking of missing e-mails…

    Why does (did?) GSL, the company that bought Michael Connell’s GovTech Solutions (after his death), run John Conyers’ website?

    Government Clients

    * Bay County Clerk of the Circuit Court – (www.baycoclerk.com)
    * Brevard County Clerk of the Court – (www.brevardclerk.us)
    * Office of Thrift Supervision – (ots.gov)
    * Republican.Senate.Gov – (republican.senate.gov)
    * Senate Joint Economic Committee – (www.jec.senate.gov/republicans/)
    * Senate Republican Conference – (src.senate.gov)
    * Senate Republican High Tech Task Force – (republican.senate.gov/httf)
    * Sumter County Clerk of Courts – (www.sumterclerk.com)
    * The U.S. Senate Special Committee on Aging – (aging.senate.gov/minority/)
    * U.S. Congress Joint Economic Committee – (jec.senate.gov)
    * U.S. Congressman Ander Crenshaw – (crenshaw.house.gov/)
    * U.S. Congressman Connie Mack – (mack.house.gov)
    * U.S. Congressman Darrell Issa – (issa.house.gov)
    * U.S. Congressman Devin Nunes – (nunes.house.gov)
    * U.S. Congressman John Conyers, Jr. – (conyers.house.gov)
    * U.S. Congressman John Kline – (kline.house.gov)
    * U.S. Congressman John Linder – (linder.house.gov)
    * U.S. Congressman Lincoln Diaz-Balart – (diaz-balart.house.gov)
    * U.S. Congressman Pete Sessions – (sessions.house.gov)
    * U.S. Helsinki Commission – (www.csce.gov)
    * U.S. House Committee on Appropriations – (republicans.appropriations.house.gov/)
    * U.S. Senate Committee on Banking, Housing, and Urban Affairs – (banking.senate.gov)
    * U.S. Senate Committee on Commerce, Science & Transportation – (commerce.senate.gov)
    * U.S. Senate Committee on Energy and Natural Resources – (energy.senate.gov)
    * U.S. Senate Committee on Environment & Public Works – (epw.senate.gov)
    * U.S. Senate Committee on Homeland Security and Governmental Affairs – (hsgac.senate.gov)
    * U.S. Senate Committee on Indian Affairs – (indian.senate.gov)
    * U.S. Senate Committee on Rules & Administration – (rules.senate.gov)
    * U.S. Senate Republican Policy Committee – (rpc.senate.gov)
    * U.S. Senator Arlen Specter – (specter.senate.gov)
    * U.S. Senator Bob Corker – (corker.senate.gov)
    * U.S. Senator Chuck Hagel – (hagel.senate.gov)
    * U.S. Senator Dianne Feinstein – (feinstein.senate.gov)
    * U.S. Senator George Voinovich – (voinovich.senate.gov)
    * U.S. Senator Gordon Smith – (gsmith.senate.gov)
    * U.S. Senator James Inhofe – (inhofe.senate.gov)
    * U.S. Senator Jeff Sessions – (sessions.senate.gov)
    * U.S. Senator Jim Bunning – (bunning.senate.gov)
    * U.S. Senator Jim DeMint – (demint.senate.gov)
    * U.S. Senator John Barrasso – (barrasso.senate.gov)
    * U.S. Senator John Cornyn – (cornyn.senate.gov)
    * U.S. Senator John Thune – (thune.senate.gov)
    * U.S. Senator Judd Gregg – (gregg.senate.gov)
    * U.S. Senator Kit Bond – (bond.senate.gov)
    * U.S. Senator Lamar Alexander – (alexander.senate.gov)
    * U.S. Senator Lindsey Graham – (lgraham.senate.gov)
    * U.S. Senator Lisa Murkowski – (murkowski.senate.gov)
    * U.S. Senator Mel Martinez – (martinez.senate.gov)
    * U.S. Senator Mike Enzi – (enzi.senate.gov)
    * U.S. Senator Olympia J. Snowe – (snowe.senate.gov)
    * U.S. Senator Orrin G. Hatch – (hatch.senate.gov)
    * U.S. Senator Pat Roberts – (roberts.senate.gov)
    * U.S. Senator Richard Burr – (burr.senate.gov)
    * U.S. Senator Richard Shelby – (shelby.senate.gov)
    * U.S. Senator Richard Shelby – (shelby.senate.gov)
    * U.S. Senator Saxby Chambliss – (chambliss.senate.gov)
    * U.S. Senator Susan Collins – (collins.senate.gov)
    * U.S. Senator Tom Coburn – (coburn.senate.gov)

    • PJEvans says:

      Because no one on Conyers’s staff wants to do it, either because they don’t have the time or because they don’t have the expertise?
      (Running a website is time-consuming, especially when you have to make changes frequently. I know people who build and maintain sites, and it’s really a full-time but low-paying job.)

      • Citizen92 says:

        Maybe there just are not enough web developers worth their salt who do political pages so Conyers had to choose a GOP-affiliated firm? Which just happened to be a GOP firm that purchased another notorious GOP firm?

        Bipartisan client base preferred
        By DAVE GUSSOW
        Published October 11, 2004

        The G in GSL Solutions doesn’t stand for GOP, though it easily could.

        The Tampa Web development company counts about two dozen politicians and congressional committees on its client roster. It includes a dozen U.S. senators such as Senate Majority Leader Bill Frist of Tennessee and John McCain of Arizona, and three U.S. representatives. All are Republicans.

        Much was made of Michael Connell’s GovTech being “behind the firewall” of various House and Senate sites back during the GOP Congress. And of course much was made about Michael Connell’s close relationship to the Bushes and his control of the GWB43.com clandestine e-mail architecture. I wonder how much of SmarTech’s intellectual property conveyed when it was acquired back in January 2009, following Connell’s death.

        • Gitcheegumee says:

          Connell had a meeting with IT expert Stephen Spoonamore and allegedly asked him how to destroy hard drives,according to Spoonamore.Lots of info.

          Rebecca Abrahams: White House Emails: The Missing Link?Oct 21, 2008 … On Oct 11, 2006: 14:30-16:00 Mike Connell and others from his firm(s) … doesn’t know whether Connell had a role in the White House email purge, ….. How can we be confident that these thugs will not destroy evidence? …

          http://www.huffingtonpost.com/…/white-house-emails-the-mi_b_136653.html – Cached – Similar

  35. JohnLopresti says:

    [email protected], revision, Radack statement apparently was about the date March 7 2002, I had mentioned 2nd.

    [email protected] having listed ~50 sites (e.g. Inhofe, Issa, Hatch of MMiranda repute), perhaps has asked a question pivotal to a fair assessment of extra-TPayton email shenanigans: with respect to Conyers* site*s IT.

  36. qweryous says:

    Once again missing emails are the topic of discussion concerning the Bush administration.

    In this case the context is the conduct of the ‘war on terror’.

    With the release of the OPR final report and other drafts and responses on February 19,2010 statements like this appear (Footnote # 3, PDF page 8 of OPR First Draft Report):

    “3 (U) OLC initially provided us with a relatively small number of emails, files, and draft documents. After it became apparent, during the course of our review, that relevant documents were missing, we requested and were given direct access to the email and computer records of [REDACTION]
    _Yoo,Philbin, Bybee and Goldsmith. However, we were told that most of John Yoo’s email records had been deleted and were not recoverable. Philbin’s email records from July 2002 through August 5,2002, had also been deleted and were reportedly not recoverable. Although we were initially advised that Goldsmith’s records had been deleted, we were later told that they had been recovered and we were given access to them.”

    There is considerable discussion here and elsewhere about how and why this might occur. One aspect of the discussion has to do with the technical details of how the email system(s) might be implemented, and what types of actions would need to be taken for the emails to ‘be missing’.The extension of this is to ask what means and methods would be necessary to recover what has ‘gone missing’. Have such attempts been made in this case; and who has decided what, if anything, was done to recover them.

    Going back to the footnote referenced above:

    “OLC initially provided us with a relatively small number of emails,files, and draft documents. After it became apparent, during the course of our review, that relevant documents were missing, we requested and were given direct access to the email and computer records of_Yoo,Philbin, Bybee and Goldsmith.”

    The words “emails, files, and draft documents” are used.

    After it was determined that ‘documents’ were missing they asked for and obtained access to “email and computer records” of Yoo et al.

    Unless this a 100% paperless environment, asking for access to only email and computers (especially where there is incomplete document production)
    leaves other potentially extant copies of these documents unrequested and thus potentially unproduced.

    A different circumstance where ’emails were missing’ may help shed some light on the functioning of a bureaucratic environment.

    The following excerpts are from the Jane Mayer’s “Lost in The Jihad” published in The New Yorker on March 10 2003. LINK to complete story:
    http://www.newyorker.com/archive/2003/03/10/030310fa_fact2

    The story recounts the capture, interrogation, and the trial of John Walker Lindh. The details of his capture, and his recapture and detention after being wounded in an uprising are covered in Mayer’s story.

    It is the interrogation of Lindh, and questions about violation of his Miranda rights, and lack of legal representation while being held and questioned for nearly two months that led to this occurrence of missing emails. The conduct of one of the DOJ attorneys involved became the target of a “criminal investigation” according to the Justice Department, and referrals by DOJ OPR to two state bar associations for “possible misconduct”.

    The following excerpt is from page 7 of Jane Mayer’s “Lost In The Jihad”
    Link to page 7:
    http://www.newyorker.com/archive/2003/03/10/030310fa_fact2?currentPage=7

    “… notified by the F.B.I. that an agent planned to question Lindh without the presence of counsel. John De Pue, a trial attorney in the Terrorism and Violent Crime section of the Justice Department, was not sure if this was proper, and consulted with the Professional Responsibility Advisory Office, an internal-ethics unit. The legal adviser on duty that Friday to handle such questions was Jesselyn Radack.”

    The details are in Mayer’s story; a brief summary is that Radack advised that the FBI should not begin the interrogation since Lindh’s parents had hired an attorney, and he had not seen Lindh yet. Lindh was not informed that an attorney had been hired.Against this advice the interrogation proceeded and Radack then advised that the interrogation might not be usable in a criminal prosecution of Lindh.

    This was apparently not what the DOJ and Bush administration had planned, shortly afterward Radack was given a poor performance review and told to find another job, which she did at a private firm. The DOJ filed charges against Lindh using the interrogations that Raddack had advised against.

    It was at this time that the emails went missing in this case:
    Excerpt from page 8 of “Lost In The Jihad”. Link to Page 8:
    http://www.newyorker.com/archive/2003/03/10/030310fa_fact2?currentPage=8

    “Last March, just before her departure, Radack learned that U.S. District Court Judge T. S. Ellis III, who was presiding over the Lindh case, had requested that all copies of the Justice Department’s internal correspondence about the conditions of Lindh’s interrogation be sent to him. Ellis wanted to determine if the documents should be passed on to the defense team, who had filed a discovery motion requesting various Justice Department files related to the case. Although Radack had written more than a dozen e-mails on the subject, she learned from a prosecutor named Randy Bellows that the Justice Department had turned over only two of them, neither of which reflected her fear that the F.B.I.’s actions had been unethical and that Lindh’s confession might have to be sealed. Radack told her supervisor, Claudia Flynn, that there were many more e-mails than had been sent to the court. According to Radack, Flynn retorted that she had sent everything that had been in the official Lindh file. Radack rushed to the archives to check the case’s paper file. “I felt instantly sick,” she said. The file, which had been a thick, staple-bound stack of paper, had been reduced to several sheets. All the staples had been removed. The remaining papers included fax cover sheets, which she’d never seen before, from Flynn, addressed to several top officials at the Justice Department, including Alice Fisher, the Deputy Assistant Attorney General in charge of the Criminal Division. Only three of the dozen or more e-mails that Radack had written were left in the file.”

    There is more on this email disappearance in Mayer’s story along with the details of how some were recovered.

    The readers attention is drawn to what was missing with the emails-paper-from compiled files.

    Paper documents seldom exist in physical form in only one location. To collect them to make them ‘go missing’ they need to be collected from all their locations from someone who knows where they are.

    It is also necessary to remove all the documents which referr to the missing documents to prevent discovery of the removal.

    Of course the documents may still exist and that existence be denied by those in control of them. In that case it is necessary to make the effort to obtain them using the necessary means (which may include both legal and technical).

    Again from page eight of “Lost In The Jihad”

    ““The e-mails were definitely relevant,” Radack said. “They undermined the public statements the Justice Department was making about how they didn’t think Lindh’s rights were violated.” She paused. “Someone deliberately purged the e-mails from the file. In violation of the rules of federal procedure, they were going to withhold these documents from the court.””

    That is why the Department of Justice began a “criminal investigation” and the attorney involved was referred by the OPR to the appropriate state bar associations for “possible misconduct”.

    See what that attorney has to say about that, and the recent OPR report concerning other attorneys. LINK:
    http://www.dailykos.com/story/2010/2/20/838930/-OPR:-Torture-Lawyers-Get-a-Pass;-I-Get-Referred-for-Criminal-Prosecution-and-Bar-Discipline

    Spoiler alert: the attorney who according to the DOJ was the target of a “criminal investigation”, and the attorney OPR referred to the Maryland Bar and the D.C. Bar, was Jesselyn Radack.

    One could say that the DOJ has some experience with missing emails.
    Whether the current circumstance discussed in this thread ( Yoo and Philbin your emails are missing!-Did you know?) has anything to do with what happened in the case of Walker Lindh may be determined by whether there ever was any paper to start with, or alternately, whether anyone bothers to do what some might term the basic functions of a police detective.

    Thank You Jane Mayer for your work on stories like “Lost in the Jihad”.

    H/T to JohnLopresti who dropped Radack’s name in the thread above and triggered my memory of the Mayer article.

    • bobschacht says:

      Does your recitation of evidence suggest that the Bush DOJ have someone tasked with “cleaning up” the files of former employees of any possible incriminating evidence? In Radack’s case, someone other than Radack evidently was on clean-up duty.

      Bob in AZ

      • qweryous says:

        “Does your recitation of evidence suggest that the Bush DOJ have someone tasked with “cleaning up” the files of former employees of any possible incriminating evidence?”

        That is one possible explanation.

        Another possible explanation is ‘volunteer efforts’ by various individual persons in which they are doing what they think is ‘the right thing’ absent any actual guidance.

        A third possibility is the ‘incompetent government’ explanation, where if it is done by the government it is done badly. I.E. whoops- we lost some pallets of shrink wrapped $100 bills some where in Iraq; whoops- we didn’t realize that the court wanted THOSE documents; whoops- more of those emails might be lost. In this scenario people never see their own mistakes or others, and never do anything to report mistakes or mitigate the damage caused by the mistakes.

        Have you read the entire article by Jane Mayer referenced in @166?

        If you haven’t it will be well worth your time to do so.
        The entire story of the prosecution may help you to answer your question.

        Look at the persons ( and their positions- which imply who reports to them).

        The only way to know what happened is to properly and thoroughly investigate the occurrence.

        Has that ever happened yet?

  37. JasonLeopold says:

    A reader left this comment on my story about the report and I wanted to share it:

    NYT March 28, 2009

    **This year for the first time, the United States used a law that allows it to prosecute torture in other countries. On Jan. 10, a federal court in Miami sentenced Chuckie Taylor, the son of the former Liberian president, to 97 years in a federal prison for torture, even though the crimes were committed in Liberia.

    Last October, when the Miami court handed down the conviction, Attorney General Michael B. Mukasey applauded the ruling and said: “This is the first case in the United States to charge an individual with criminal torture. I hope this case will serve as a model to future prosecutions of this type.”**

    Me too, AG Mike.
    So, when does this fantastic new resource get implemented domestically?

    • bmaz says:

      Taylor as I recall was tried and convicted, under a somewhat dubious application of the newest version of the US anti-torture provisions, with the death counts being ones in which he personally did the acts. It should be noted that he was arrested on a passport violation and was specifically not charged with the war crimes until the US government made a conclusive determination that such provisions could not be applied to CIA, contractors and other US personnel involved in the so called war on terror and there is, of course, an affirmative defense effectively accomplishing just that written into the law. That said, the juxtaposition of the two situations is rather telling – and discouraging.