Clarence Thomas’ Revenge

Rosalind linked to this LAT article describing Clarence Thomas’ pro-abuse views.

According to Supreme Court Justice Clarence Thomas, a prisoner who was slammed to a concrete floor and punched and kicked by a guard after asking for a grievance form — but suffered neither serious nor permanent harm — has no claim that his constitutional rights were violated.

Thomas objected when the high court, in a little-noted recent opinion, said this unprovoked and malicious assault by a North Carolina prison guard amounted to cruel and unusual punishment.


According to Thomas, this harsh treatment did not qualify as cruel and unusual punishment. “Judges — not jailers — impose punishment,” he wrote.

[Thomas and Scalia] explained that the word “punishment” as it was used in the English Bill of Rights in 1689 referred to judges imposing punishment for a crime. Prison guards do not impose “punishment” even if they mete out cruelty, they said.

The entire article is worth reading not just because it reveals where Thomas will weigh in if torture ever gets to SCOTUS.

But it highlights a point I noted (as did Citizen92): the degree to which Clarence Thomas’ former and future clerks implemented our country’s torture regime.

Page 25 to 27 (PDF page 31 to 33) of the OPR Report includes a section on the background of the lawyers who had significant hand in writing the torture memos:

John Yoo. Clerk, Clarence Thomas,1994 to 1995

Patrick Philbin, Clerk, Clarence Thomas, 1993 to 1994

Jennifer Koester, Clerk, Clarence Thomas, 2004 to 2005

Steven Bradbury, Clerk, Clarence Thomas, 1992 to 1993

Of the list included on those pages, just Jack Goldsmith and Daniel Levin did not clerk for Thomas. And of course, the most egregious work came from lawyers–Yoo, Koester, and Bradbury–who were Thomas clerks.

This is one of the dangers of appointing a partisan hack like Thomas rather than radical, but intelligent, lawyers like Alito and Scalia. Because the partisan hack is going to launch a whole generation of lawyers (see also Citizen92’s focus on James Ho, who also went through OLC) who treat law like one big game of sophistry and human beings like objects into really prominent positions.

And I would bet that Clarence Thomas enjoys the little part he has had in shredding our country’s Constitution.

154 replies
    • BoxTurtle says:

      A stump with a weathervane would be a better senator than Arlen. Cheaper, smarter, more decorative and it’ll point whichever way the wind is blowing.

      Boxturtle (Plus, a stump can be painted for each holiday)

  1. emptywheel says:

    BTW, one of my college friends was a finalist for a Thomas spot in 1993-1994. He went on to work in Bush’s FDA.

    Yes, we did have some interesting arguments.

  2. emptywheel says:

    Here’s a question. If your former clerk is sued under Bivens for violating a person’s Constitutional protections by authorizing torture and abuse (and another of your clerks co-authored that opinion), do you need to recuse yourself when the case gets to SCOTUS?

    Maybe I should put it this way. Should you recuse yourself? And will Thomas?

    • BoxTurtle says:

      Well, I’d recuse myself. I think Thomas will as well. Credit where credit is due, he seems to properly recuse himself.

      Boxturtle (If he was the deciding vote, I don’t know if his ethics would hold)

    • scribe says:

      Whydontcha ask Rehnquist (historically speaking) about his recusal in Laird v. Tatum, a warrantless military intellience wiretapping program of dissidents in the 60s which he, prior to ascending to the S.Ct., had a big piece in legally justifying.

      In other words, no. FWIW, IIRC the holding in Laird was “no standing”.

    • tjbs says:

      Going back to bush vs. Gore ,no the supremes are different than the lower courts, who must recluse themselves over an appearance of impropriety.
      Thomas and scalia had family members working for the bush campaign but they got to decide how flamboyant one could be daring the congress to man up and discharge their duties.

      Then congress using impeachment powers makes the final decision as to weather they should have to recluse themselves for that transgression.Congress is charged and given the tools, through impeachments ( meant as an investigation not just removal) with keeping the other two branches honest. Of course the founders understood this by having congress, not the courts, decide election issues.

    • cinnamonape says:

      I think if you look at the careers of these clerks you’ll find that several have presented cases before the Court or served as Co-Counsel. I suspect that Thomas never recused himself once.

      Imagine what an onerous task it must be to Clerk for Thomas. After all, he’s known for writing extensive, deeply researched decisions. I suspect that the Thomas clerkship mainly serves as a resumé builder and allows the clerks to make the necessary political and other connections to move into the Conservative networks. It gives them a paid year to moonlight, write up op-eds for the Federalist Society and plot out what future positions they’ll take in some Republican Presidents Administration, or which law firm to join.

      • rosalind says:

        I suspect that the Thomas clerkship mainly serves as a resumé builder and allows the clerks to make the necessary political and other connections to move into the Conservative networks. It gives them a paid year to moonlight, write up op-eds for the Federalist Society and plot out what future positions they’ll take in some Republican Presidents Administration, or which law firm to join.

        see: koester, jennifer

        • emptywheel says:

          With Koester, I think it also served to make her respectable after doing what they knew would eventually come out as utterly unrespectable things under the Bush Administration.

      • Gitcheegumee says:

        Well,Thomas and Scalia have a ready made ,steady stream of future clerks to select from,via Ave Maria Law School founded by the founder of Domino’s Pizza,Tom Monaghan.

        Ave Maria School of Law
        From Wikipedia, the free encyclopedia

        The Ave Maria School of Law, founded in 1999, is a fully ABA accredited Roman Catholic law school, located in Naples, Florida.
        Ave Maria espouses a natural law philosophy and teaches law within the context of the Catholic intellectual tradition.

        Tom Monaghan, founder of Domino’s Pizza and former owner of the Detroit Tigers.Ave Maria was founded in 1999. 1998, several professors left University of Detroit Mercy School of Law after a dispute regarding the invitation of a pro-choice Michigan Supreme Court justice to give the oath at the end of the school’s Red Mass, providing a core faculty. The school currently has thirty-four professors including Robert Bork (former United States Supreme Court nominee .)

        Supreme Court Justice Antonin Scalia assisted Ave Maria’s leadership in developing the school’s curriculum, and in 1999 Supreme Court Justice Clarence Thomas delivered the school’s first annual Ave Maria Lecture.

        The school moved from Ann Arbor, Michigan to Naples, Florida, opening in the new location in August 2009.

      • emptywheel says:

        Understood. That’s the not the problem. The problem is if Thomas would vote in a suit–the Padilla suit–in which Yoo was a defendant.

    • tinah2751 says:

      ooooh – I always forget about Laura Ignoramousham. Who doesn’t think the clerks run the Thomas show?

      • BoxTurtle says:

        I don’t think the clerks run Thomas. He’s had many clerks through the years, but the tone and content of his writings has remained quite consistant. I think in his case, the clerks are just cleaning up his pontifications and reinforcing his bad judgement.

        Boxturtle (The above is a guess, however)

        • wavpeac says:

          Minimize, deny and blame.

          Thomas might very well be a perpetrator. (sexual harassment) And the hallmark of a perpetrator is to minimize abuses of power and control, deny them, and blame them on the victim. This is the thought process for all perpetrators. It is the foundation for all abusive, wreckless and harmful behavior. It is the complete invalidation of the experience of “other”.

    • emptywheel says:

      Scalia has more skill at making a consistent argument. He has an ideology, however fucked and twisted. Thomas’ ideology is whatever makes most sense for him at a given time.

      • fatster says:

        While I am a mere observer of things judicial, and should refrain from comment in that area, Thomas’ behavior seems characterized by contrariness. Do check out the synonyms.

    • BoxTurtle says:

      Do not underestimate Nino. He’s extremely smart and an excellent advocate for whatever extreme positions he holds. I would love to debate the man about any position we hold differing views, and I’d provide the beer!

      Boxturtle (I’d likely lose, but I’d have fun)

  3. Sara says:

    The New York Review of Books currently has posted the second of two articles about Prison Abuse, which I found extremely informative.

    Several years ago, Pat Leahy jogged loose some money to fund a nationwide comprehensive study of both prison rape and abuse, both in the Juvenile systems, and Adult prisons, M&F, and the legislation provided for the study commission to release findings to the Attorney General, and thus Erik Holder has till June to accept, reject or alter the recommendations, and if approved, they become policy. The author suggests Holder may use the clause in the legislation to hold over his response for a year. Apparently DoJ actually has the power now to impose standards, but they wanted to study to give anything they did empirical authority.

    There are already massive protests to Congress about the findings, mostly from Prison Guard Unions and Professional Associations of Wardens, as might be expected — but the study money Leahy shook loose also allowed some experimentation with Custodial Standards to be attempted as the study ran, and the report seems to show that it is possible to get abuse and rape down to near zero. The ABA is also involved with this project.

    The first part of the series was published two weeks ago. It is mostly about conditions in the Texas Juvenile System. Don’t read either article on a full tummy.

    • Gitcheegumee says:

      Your post ,coincidentally enough ,dovetails with some research I was doing just yesterday on Mel Sembler-whose youth boot camps have been cited in lawsuits for abusive practices.

      Sembler ,of Florida,a Bush family BFF, is a major GOP donor,and also was affiliated with Mitt Romney’srecent Presidential campaign.And that is ironic, considering that one of Mitt’s top capos was dealing with allegations of abuse at juvenuile boot camps HE was linked to:

      Romney, Torture, and Teens – Reason MagazineJun 27, 2007 … The former governor’s connections to abusive “tough love” camps. – Cached – Similar

      (BTW, there was a huge scandal around 2007 involving sex abuse at the statewide Texas Youth Commission.If I’m not mistaken, there are some entries here at EW about that .Horrific.)

      • Sara says:

        “Your post ,coincidentally enough ,dovetails with some research I was doing just yesterday on Mel Sembler-whose youth boot camps have been cited in lawsuits for abusive practices.

        Sembler ,of Florida,a Bush family BFF, is a major GOP donor,and also was affiliated with Mitt Romney’srecent Presidential campaign.And that is ironic, considering that one of Mitt’s top capos was dealing with allegations of abuse at juvenuile boot camps HE was linked to:”

        Yea, I really want to encourage people to go to the New York Review of Books site and read both articles — this week, and the last issue. Both by David Kennedy. It is important to locate our discussion here in the context of a process that began in 2003 when Leahy (and I guess Sessions) sponsored the appropriation to create the commission and study rape and abuse in American Prisons — and how to end it. It is in Holder’s lap now, he has to decide whether to accept the recommendations and how to proceed, and not only should we adhore the rape and abuse, but we need to see where the process is, who is located where in the controversy and all.

        This is so related to the torture issue that consumes us. The fact that all this is tolerated in American Custodial Institutions just legitimizes what is done to the detainees. Cleaning up our jails and prisons is so fundamental to making a successful Human Rights argument about detainees.

        As Kennedy points out, rape in prison is something left-right, Christian Conservative-Secular, Republican, Democrat, etc all can agree around, the only opponents seem to be special interest groups. If the basic principle can be established through this process — all the arguments about putting terrorists to torture can be more easily dealt with.

        • Gitcheegumee says:

          I would be curious to know if the boot camp being run by Romney’s associate,the Sembler camps ,and the TYC were receiving Federal funds,or were they strictly privatized?Indeed, what were the sources of their funding?It seems as though when the prison system got privatized, the abuse escalated.

          It is particularly troubling when the institutionalized abuse begins early on with these juvies-its akin to a prep for what to expect down the road as an adult ,should they go on to prison.

          Here’s an excellent piece that is very thorough in the specifics of this massive scadal,involving the TYC. Texans still hold a grudge against Gonzales for his related sins of commission regarding this travesty.

          TYC sex allegations exceed 750 – News for Dallas, Texas | Dallas …Mar 7, 2007 … TYC sex allegations exceed 750. Exclusive: Complaints filed against guards at all 13 youth prisons, documents show …
…/dws/dn/…/030707dnpronutyc.39129f4.html – Cached

          Investigative Reports: Texas Youth Commission | News for Dallas …03/04/09 The Texas Youth Commission’s imprisoned population has dropped by … Sex offender fired as TYC guard, 03/07/07 TYC sex allegations exceed 750 …
 – Cached – Similar

          Show more results from

          • Citizen92 says:

            I believe it all started with government funding. “The Seed” was the initial government program. I recall reading something about mind control techniques from the Korean War propagated by the North.

            The Seed was so bad a Senate investigation shut it down. But then it went private, courtesy of strip mall developer Mel Sembler.

            • behindthefall says:

              I remember a moment of horror, on the evening of my seventh or eighth day, when I realized that I was unable to “think” any longer. I had lost the ability to retreat into the sanctuary of my own mind and think things through, because I had grown so accustomed to being intruded upon without a moment’s notice.

              From the linked-to document.

              Oh, great. In a little over a week, “The Seed” managed to undo the entire point of e-duc-ation and all the work of every good teacher the writer of that essay had ever encountered. I’m guessing, there, but it seems probable. Just a week, and there goes the basis for creativity and insight.

        • fatster says:

          It all does seem to be of a piece, doesn’t it? Not appropriate to delve into this subject much on this site, but here is an annotated list. I’ve been keeping my own list for quite a while and it’s over 100 pages.

          (Apologies for the O/T)

  4. Rayne says:

    It’s as if it never occurred to Thomas that the word “cruel” in “cruel and unusual punishment” might not be a modifier of “punishment,” but short form for cruelty.

    Or that judges by virtue of ignoring conditions of treatment of persons in government custody prior to sentencing actually do sanction pre-sentencing punishment.

    And while Thomas might also want to ignore it, treatment of a cruel and degrading nature — pre-sentencing or otherwise — is rejected by Article V of the UN Universal Declaration of Human Rights, ca. 1948; the U.S. was a drafter and co-ratified it along with 47 other countries.

    • Ishmael says:

      One of my nominees for “lowest moment Thomas has reached” was the decision last year in Safford Unified School District v. Redding, the school strip search case, where the court ruled 8-1 that it was not OK to strip search a 13 year old girl looking for an ibuprofen tablet. Thomas, of course, dissented, continuing with his long struggle to ensure that students have no constitutional rights whatsoever, (and that’s saying something from a court that has limited student free speech (Morse v Frederick, the “bong hits for Jesus” case). I don’t think he’ll be happy until students are on the same level as prisoners when it comes to the Constitution.

  5. Margaret says:

    Thomas is so dogmatic and tenacious in his beliefs that if cancer was cured forever he would rule it un-Constitutional on the grounds that it is without legal precedent. He doesn’t listen to arguments, he just scans the case history, makes up his mind and no testimony, no persuasion from that point on can change it. The man is entirely unqualified to serve on any court, much less SCOTUS but what other nominee would one expect from the man who picked Dan Quayle for vice president?

    • BoxTurtle says:

      He doesn’t listen to arguments, he just scans the case history, makes up his mind and no testimony, no persuasion from that point on can change i

      OBJECTION! Assumes material not in evidence.

      Boxturtle (Well, have any of you seen evidence of independent thought?)

          • skdadl says:

            skdadl reflects to herself in the third person that if we’re telling Dan Quayle jokes, Bob Dole third-person narration is bound to follow.

              • skdadl says:

                skdadl wonders whether douvie knows that our noses are lined with erectile tissue. True fact. That’s why it is often so much fun to sneeze. Even better: women can have multiple sneezes.

  6. behindthefall says:

    **mods** A “Webfetti” ad just took over my open tab (Opera). Not good. Rather than try to go back to Emptywheel, I just killed the tab and opened a new one. Do you suppose that was sufficient to prevent anything from being done by this possibly malicious ad?

    • canadianbeaver says:

      seems to be happening alot the last few days. This site has been compromised me thinks.

      • BoxTurtle says:

        No, FDL is fine. It’s the adservers. Either they get hacked or they fail to review the submitted ad code for evil intent.

        Boxturtle (Or any ad is fine, as long as the check clears)

        • PJEvans says:

          The adserver list (I saved it from last time):

      • behindthefall says:

        Since Friday, I think it was, it’s also been tossing my viewing position back up to the beginning of comments, and I’ve had to actively keep dragging the viewport (or whatevr you call it) down with the mouse in order to read the tail of the comments. <– **mods, too**

        @Box Turtle — thanks for the info. Guess I'll relax.

        • canadianbeaver says:

          If I use Internet Explorer, doesn’t matter what diary I’m on, it redirects to crapsites…and it isn’t my computer. Somebody has been playing. Comes with being popular I guess.

    • BoxTurtle says:

      As long as you are up to date with Opera, Windows, and your virus checker you should be fine.

      I keep the adservers here blocked, they seem to get hacked way to often.

      Boxturtle (I’ve posted my hosts file before, if there’s interest I’ll post it again)

    • MarkH says:

      So he would say incarceration is not punishment and yet Thomas says punishment is ONLY about how long to incarcerate. Curious.

      Their hair-splitting makes me wonder if they would choose to believe that holding someone in a Gitmo-style holding area is distinctly different from either ‘punishment’ or ‘incarceration’. If so they could easily justify letting ‘authorities’ hold anyone for any length of time so long as it was NOT authorized by a court as punishment or some kind of legal incarceration.

      Or, to simplify the point, if (and only if) it’s illegal (or perhaps the more precise label is ‘extra-legal’) they believe it’s okay.

  7. orionATL says:

    clarence thoma’s judicial work gives him a place to express the bitterness and nihilism an emotionally damaging childhood engendered in him.

    i think thomas can best be viewed as the justice the federalist society launders their moles thru.

    i don’t think thomas has the intellect or inclination to intellectually train any judge-in-waiting.

    but he is said to be very supportive and caring of his clerks.

    when his charges leave, they have “supreme court” stamped on their passport, as any fast- track- for- an- appeals- court-appointment lad would want.

    thus, the entire federal judicial system -appeals courts as well as the supreme court- is controlled by
    the federalist society’s old-world monarchist thinking.

  8. canadianbeaver says:

    Well, if torturing is all right for “enemy combatants”, then it’s all right for criminals. Aren’t they just domestic enemy combatants? You all didn’t honestly think that the US government would stop at just torturing foreigners did you? Soon all will be tortured in the name of justice.

  9. BoxTurtle says:

    but he is said to be very supportive and caring of his clerks.

    Hitler loved dogs and children.

    Boxturtle (The banality of evil…)

  10. behindthefall says:

    So Thomas’ position is that if a sentence of 5 years in jail is not of itself “cruel and unusual”, then whatever happens during that time is none of the court’s concern? Wow.

  11. msmolly says:

    If you’re using Firefox, I heartily recommend Adblock Plus. It may also be available (I’ve heard) for Safari, but I prefer Firefox on my Mac.

    P.S. IE is a piece of crap. Use Firefox.

  12. RAMA says:

    Clarence Thomas is an emotionally handicapped man consumed by adolescent self-hatred. Had he searched for decades, George H.W. Bush could hardly have found a more dangerously unstable, unsuitable candidate for the nation’s highest court.

  13. douvie says:

    I am all in favor of life tenure on the Supreme Court, but Mr. Thomas is a compelling exhibit for a competency exception. The legal justification for the position this jackass has taken is not rational. I’m sure that a panel of physician’s could very well make the case that he is suffering from some mental disease or defect. Given the fact that we have been handed a life sentence with this creature, we should at least be granted the possibility of a pardon in case he is no longer competent to render decisions. Perhaps that pubic hair is still circulating in his body and has become lodged in his pea-sized brain.

  14. orionATL says:

    box turtle @25

    and david margolis, one would guess.

    the point is particularly important with thomas if he is the gateway thru which not- legal-mainline or not particularly well-equipped young lawyers get their appeals court visas stamped.

    • BoxTurtle says:

      Justices pick clerks who think like they do. What kind of clerk would you expect him to select?

      Boxturtle (Bet Ginsberg’s clerks are a hotbed of liberalism. :-) )

      • PJEvans says:

        Not at all sure that he thinks. (Reacts, yes – but rational thought doesn’t seem to be there.)

        • BoxTurtle says:

          I have heard it said that he can’t write his opinion until he reads Scalia’s. :-)

          Boxturtle (And Thomas is the most predictable of the bunch)

  15. puravida says:

    Thomas is an absolute disgrace. Thurgood Marshall must be looking on from the afterlife shaking his head in sorrow.

    If Obama gets the opportunity to appoint another, perhaps a former football player from Minnesota may be considered.

  16. BlueSun says:

    Clarence Thomas has always been a hack, and a not very intelligent one. During his confirmation hearings, Democrats were terrified of confronting him on his true weakness, his complete and utter intellectual unfitness to sit on the SCOTUS, for fear that the Republicans would play the ‘race card’ and eat into the pro-Democratic majorities in African-American communities.

    So, to play it safe, they went after him for issues unrelated to his incompetence and dangerous ideological blindness and tried to use the Anita Hill episode to discredit him. Republicans ran rings around the Dems (it seems that Republican outrage over sexual misconduct only arises when it can be used as a political weapon against errant Democrats – they are remarkably accepting of their own peccadilloes ). Because the Democrats withheld the big guns of unfitness and incompetence, writ large throughout his career, their popgun approach failed and we are stuck not only with an ideological fool on the court, but one who burns to get even with his detractors at every opportunity.

    Today, he rarely, if ever, asks questions from the bench, rarely writes opinions, and they are almost all rambling and poorly reasoned. Over the years has acted merely as a rubber-stamp second vote for his puppet-master, Nino Scalia. Indeed, most of Thomas’s earliest clerks he inherited from Scalia as he replaced his own with new clerks.

    Antonin Scalia, OTOH, is a brilliant man, capable of highly sophisticated reasoning, but he applies his abilities to a foundational belief in law that is extremely radical and dangerous to the principles of a democratic society. His views were molded by a strong belief in a fundamentalist vision of Catholicism and the radical, fringe interpretation of law found in the fringe lunacy of the Federalist Society. When your basic premises, your core world view, is as skewed as Scalia’s, your innate intelligence ends up being used in the service of truly dangerous and deluded ideology.

    Saul Bellow once commented: “A great deal of intelligence can be invested in ignorance when the need for illusion is deep.”

    A man gifted with intelligence, but lacking in wisdom, compassion, understanding, a sense of community, and true morals; a man who gives his intelligence over to the defense of a destructive and delusional politicial ideology is a most dangerous entity, indeed.

  17. raven333 says:

    The man is psychologically disabled for judicial work, and this has been clear since his confirmation hearings. His confirmation was one of the early signs of the corruption of the Senate.

  18. orionATL says:

    blue sun@36

    your’s is as thoughtful a comment on the right-wing radicalism holding sway in the supreme court as any i
    have read in a while.

    this, of course, means i agree with you.

    i was particularly impressed with the acuteness of your analysis of scalia.

  19. orionATL says:

    box turtle @34

    your comment is unrelated to my concern, but probably true as far as it goes. it just does not go far enough.

    judges don’t just pick clerks, as one would take apples from a bin. there is a process, i would guess, and a substantial amount of input from others about who gets selected.

    • BoxTurtle says:

      Actually, the justices hire their own clerks using whatever process they see fit. I’d bet the only person Thomas seeks input from is Rush.

      Boxturtle (Or possibly he channels Attila the Hun)

      • DWBartoo says:

        Thomas’ clerks reflect Thomas’ “promises”.

        How many attorneys here present are sanguine that a SCOTUS composed, in part, of those who “selected” George W. Bush to be President in 2000, or owe their “position” to that same George W. Bush, are likely, ever to hold Bush or his cohorts responsible for torture?

        Jurisprudence will likely be replaced with political “prudence” couched in terms of deference.

        The underlying rationale will be loyalty, not to the rule of law, but to the pragmatic expediency of the “networking” “system” upon which the entire political class ultimately depends for their “protection” from reasonable consequence and questions regarding their fundamental capacities, purposes or “beliefs”.


  20. TarheelDem says:

    Stunning, just stunning. But we knew his propensities when we had his confirmation hearings. Yes, this one is indeed on Arlen, who gave one of the sorriest performances by a Senator after the 19th Century and prior to the 21st Century.

    Good work, ew.

  21. Tumblingweed says:

    Does anyone remember Supreme Conflict and Jan Greenburg arguing that Thomas is the intellectual leader and Scalia the follower? What happened to the campaign to “rehabilitate” Thomas? Just a footnote, I suppose, in the generally successful marketing campaign for conservative memes.

    • bobschacht says:

      Does anyone remember Supreme Conflict and Jan Greenburg arguing that Thomas is the intellectual leader and Scalia the follower? What happened to the campaign to “rehabilitate” Thomas?

      Yeah, I remember it. I previously had a good feeling about Jan, but since her book about Thomas, she seems too much to be preening like an aristocrat. The campaign to “rehabilitate” Thomas doesn’t seem to be picking up much steam, does it?

      Bob in AZ

  22. MadDog says:

    OT – For those who might of missed it, Andy Worthington had a piece up recently that is well worth the read (silly me, Jeff Kaye also had a good Seminal Diary on this as well, and I must of just plained missed it):

    UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?”

    The referenced UN Secret Detention Report is here (219 page PDF).

    Among a number of interesting observations regarding the the US’s global involvement in secret detention over the years after 9/11, there is this on the current practices on how the Obama Administration is faring:

    …161. The Experts welcome these commitments. They believe however that clarification is required as to whether detainees were held in CIA “black sites” in Iraq and Afghanistan or elsewhere when President Obama took office, and, if so, what happened to the detainees who were held at that time. Also, the Experts are concerned that the Executive Order which instructed the CIA “to close any detention facilities that it currently operates” does not extend to the facilities where the CIA detains individuals on “a short-term transitory basis”.342 The Order also does not seem to extend to detention facilities operated by the Joint Special Operation Command…

      • Jeff Kaye says:

        Andy is the one who has really done the yeoman’s work investigating the “ghost prisoners” story, really diving into those yucky weeds, so the link is an important one, and those who haven’t followed him on this, should.

        Thanks, EW, for this Thomas tale. I impressionistically had noticed the Thomas clerking issue, but you put it together and it is quite impressive, if depressing.

        OT, but I’d love you or bmaz to comment on this: Donald Vance’s suit against Rumsfeld was allowed to go forward the other day. I think this has slipped under the radar (bold emphases added):

        CHICAGO – Federal Judge Wayne R. Andersen issued an historic ruling today [March 5] allowing a suit charging former Defense Secretary with authorizing torture.

        Rumsfeld asked the court to dismiss the case because he is a high-placed governmental official and argued that he was immune from suit even for allegations of torture. Mr. Rumsfeld also argued that due to his position, the Constitution permitted him to order interrogation techniques that are widely considered by human rights experts to be torture. The Court rejected both of Mr. Rumsfeld’s arguments and held that high-placed placed cabinet officials can be held personally liable if they authorize the use of torture.

        While many previous civil suit attempts to prosecute Bush-era cabinet officials for authorizing torture have failed, the suit brought by Chicago-based Loevy and Loevy Attorneys at Law, Donald Vance and Nathan Ertel v. Donald Rumsfeld, United States of America and Unidentified Agents, will now proceed to discovery and a trial.

        Donald Vance, a Navy veteran, accuses U.S. forces in Iraq of imprisoning him without charges for over three months in 2006, and torturing him during much of that time. Vance, a private security employee at the time of his arrest in Baghdad, named former U.S. Defense Secretary Donald Rumsfeld as a defendant for his role in overseeing the military prison system in Iraq….

        “Plaintiffs…allege that in August 2003 Rumsfeld sent Major Geoffrey Miller to Iraq to review the United States prison system,” read Andersen’s decision. “Plaintiffs claim that Rumsfeld informed Major Miller that his mission was to ‘gitmo-ize’ Camp Cropper…. These allegations, if true, would substantiate plaintiffs’ claim that Rumsfeld was aware of the direct impact that his newly approved treatment methods were having on detainees in Iraq…. Based on these allegations, we conclude that plaintiffs have alleged sufficient facts to survive Rumsfeld’s motion to dismiss on account of a lack of personal involvement…. Accepting at this stage that these treatment methods were in fact used, we conclude that a court might plausibly determine that the conditions of confinement were torturous.

        Note, the article above was written by Vance’s attorneys or someone in their office (Loevy and Loevy). Also, the PDF for the opinion is here. The original complaint is at this PDF link.

        • klynn says:

          His lawyers have been very careful and quite closed in terms of giving public statements. I am not surprised that was a release from his lawyers. They have to be careful due to the pressure of the case.

        • pdaly says:

          That Rumsfeld case must have Yoo’s attention.

          From The 2008 Esquire interview after Yoo’s 2003 OLC memos were released to the public in 2008:

          I don’t [necessarily] agree that the methods did migrate to Iraq, because I don’t know for a fact that they did. The analysis of the memo released yesterday was not to apply to Iraq, and we made clear in other settings that the Geneva Conventions fully applied to the war in Iraq. There was no intention or desire that the memo released yesterday apply to Iraq.

          I don’t believe Yoo; nevertheless, it sounds like Yoo wants to wash his hands of DOD’s/Rumsfeld’s troubles. Somehow even Yoo seems to think Unitary Executive/Commander-in-Chief magic works best when torture is kept hidden within the black sites of CIA.

          I assume Rumsfeld would have to implicate OLC in his defense if the suit continues.

    • klynn says:

      Good. I have been following the Vance case for a long time. I had noticed last week a decision was soon to come. This is good. I hope Vance wins. What he went through, after volunteering to go undercover and provide intel only to become a prisoner, is terrible.

  23. workingclass says:

    Neither judges nor elected officials any longer feel obliged to defend the constitution. It is a dead letter except inasmuch as it is used to oppress the working classes. The Supreme Court is not only not supreme, it is a fraud.

  24. orionATL says:

    rightwingwatch (people for the american way) published a short post on the federalist society in may,2006.

    the article lists members of the bush administration who are members of the federalist society. among those included are a list of federal appeals court judges who are members of the federalist society:

    [Federal Judicial Nominees
    Samuel Alito, confirmed to the U.S. Supreme Court
    John Roberts, confirmed to the U.S. Supreme Court
    Janice Rogers Brown, confirmed to the U.S. Court of Appeals for the DC Circuit
    Miguel Estrada, nominated to the U.S. Court of Appeals for the DC Circuit [withdrawn]
    Brett Kavanaugh, confirmed to the U.S. Court of Appeals for the DC Circuit
    D. Brooks Smith, confirmed to the U.S. Court of Appeals for the Third Circuit
    Michael Chertoff, confirmed to the U.S. Court of Appeals for the Third Circuit, currently Secretary of the Department of Homeland Security
    William Haynes, nominated to the U.S. Court of Appeals for the Fourth Circuit
    Edith Brown Clement, confirmed to the U.S. Court of Appeals for the Fifth Circuit
    Priscilla R. Owen, confirmed to the U.S. Court of Appeals for the Fifth Circuit
    Henry Saad, nominated to the U.S. Court of Appeals for the Sixth Circuit [withdrawn]
    Susan Neilson, confirmed to the U.S. Court of Appeals for the Sixth Circuit
    Deborah Cook, confirmed to the U.S. Court of Appeals for the Sixth Circuit
    Jeffrey Sutton, confirmed to the U.S. Court of Appeals for the Sixth Circuit
    David W. McKeague, confirmed to the U.S. Court of Appeals for the Sixth Circuit
    Diane Sykes, confirmed to the U.S. Court of Appeals for the Seventh Circuit
    Steven Collonton, confirmed to the U.S. Court of Appeals for the Eighth Circuit
    Raymond Gruender, confirmed to the U.S. Court of Appeals for the Eighth Circuit
    Carlos Bea, confirmed to the U.S. Court of Appeals for the Ninth Circuit
    Carolyn B. Kuhl, nominated to the U.S. Court of Appeals for the Ninth Circuit [withdrawn]
    Jay Bybee, confirmed to the U.S. Court of Appeals for the Ninth Circuit
    Harris L. Hartz, confirmed to the U.S. Court of Appeals for the Tenth Circuit
    Michael McConnell, confirmed to the U.S. Court of Appeals for the Tenth Circuit
    Timothy M. Tymkovich, confirmed to the U.S. Court of Appeals for the Tenth Circuit
    William Pryor, confirmed to the U.S. Court of Appeals for the Eleventh Circuit
    Thomas B. Griffith, confirmed to the U.S. Court of Appeals for the DC Circuit
    Other High-Profile Federalist Society Members [partial list]
    Justice Antonin Scalia, U.S. Supreme Court ]

  25. orionATL says:

    karl rove in a november,2005 speech to the federalist society


    [ Will we see the kind of self-restraint those of you in this room, and those of us who work in this Administration, want? I believe we will. I say this because we are now seeing the fruits of your good works and the good works of many others.

    More than 200 exceptionally well-qualified nominees – many of whom have found intellectual sustenance and encouragement from The Federalist Society – have been confirmed as Federal judges since 2001, not easily or quickly, but confirmed after a hard effort. On the Supreme Court we see an individual like Chief Justice John G. Roberts, Jr., who conducted himself brilliantly before the Senate Judiciary Committee. And soon, Chief Justice Roberts will have as his colleague a proud member of the Federalist Society, Judge Samuel Alito, Jr.

    The willingness of these brilliant legal minds to put aside lucrative careers in private practice to serve a greater public good should make us all optimistic and hopeful.

    Our arguments will carry the day because the force and logic and wisdom of the Founders are on our side. We welcome a vigorous, open, fair-minded, and high-minded debate about the purposes and meaning of the courts in our lives. And we will win that debate. ]

    • DWBartoo says:

      The modest deference of the great and powerful Rove.

      Our future, as “they” would have it (if “they” already don’t).


  26. CalGeorge says:

    In our society, poor schleps don’t have rights and Thomas is making sure it stays that way.

  27. sailmaker says:

    Clarence Thomas’ Revenge

    I’m changing careers, and must have missed something. Thomas’ revenge for what? Thanks.

  28. qweryous says:

    On the topic of Supreme Court clerks there is also the issue of Adam G. Ciongoli who clerked for Justice Samuel Alito twice. It was the second selection that raised some eyebrows including those of

    “Ronald D. Rotunda, one of the nation’s most influential legal minds and most frequently cited experts on constitutional law and legal ethics,” (as he is described on the website of Chapman University) see LINK:

    Concerning the selection of Mr Ciongoli to clerk for Justice Alito on the Supreme Court ( for a brief introduction to Mr. Ciongoli and his role in the Bush DOJ see wikipedia ) LINK:

    Ronald Rotunda said the following:

    “”We don’t normally contemplate a high-level Justice Department official becoming a Supreme Court clerk,” said Ronald D. Rotunda, a specialist in legal ethics at George Mason University School of Law. “It’s just asking for problems that are unnecessary.””

    The above excerpt is from the New York Times story “New Clerk for Alito Has a Long Paper Trail” by ADAM LIPTAK February 19, 2006 LINK AT:

      • rosalind says:

        i was scanning down the front page when my (pseudo) name jumped out, at which point i was thoroughly awake. and as we are at 70 comments, something i just heard on harry shearer’s le show program that harshed my buzz:

        from McClatchy March 3rd – General sounds alarm on U.S. Army training

        The Army’s ability to train its forces is “increasingly at risk” because of the nation’s protracted commitments to Iraq and Afghanistan, the general in charge of training has told the Army’s chief of staff…Only 30 percent of the instructors at Army training schools are in the military, Dempsey says, with the Army increasingly dependent on outside contractors.

        (emphasis mine)

        so we’ve got Clarence Thomas’ seedlings spreading like manure, and Blackwater/Ze/insert-name-of-current favored Conractor Crony here “teaching” our troops.

        back to bed i go…

  29. orionATL says:

    an easy read about the federalist society from an article in the “washington monthly”:

    this article dates from 2000 and features federalist society member ken starr and the prominent role federalist society members played in the republican effort to hound pres clinton from office.

    ronald rotunda is mentioned in passing.

    and there is this cite indicating just how un-philisophical and how politically active the society is:

    [ Perhaps the network¹s most far-reaching victory in recent years was a 1999 decision by a Federal appellate panel of DC Circuit judges in a case called American Trucking v. EPA , which stunned clean-air advocates by rolling back EPA standards covering smog and soot. The decision was based on the principle of “non-delegation,” a rigid and archaic reading of the Constitution, which holds that Congress retains all legislative authority, but not the power to delegate regulatory power to executive agencies. C. Boyden Gray, a member of the Federalist Society¹s Board of Trustees, filed a friend-of-the-court brief in American Trucking. Gray was also good enough to share his insights on non-delegation with the Federalist convention in November when he moderated a panel discussion entitled: “The Non-Delegation Doctrine Lives!”

    One extraordinary thing about the American Trucking decision was just how well it served private industry at the expense of the public interest. A commentator writing in a Federalist Society newsletter crowed that American Trucking will save industry “in the neighborhood of $45 billion per year.” Perhaps that is true–and perhaps industry would save even more money if the courts decide to eliminate, for example, the Food and Drug Administration¹s jurisdiction over food and drugs. But the social costs would be enormous. ]

    • Citizen92 says:

      Again the aspens… The aspens.

      David Addington was chief counsel at the American Trucking Association at that time.

      (With this crowd, the issues are always the same. Only the venue of attack changes from time to time).

  30. wavpeac says:

    “Our arguments will carry the day because the force and logic and wisdom of the Founders are on our side. We welcome a vigorous, open, fair-minded, and high-minded debate about the purposes and meaning of the courts in our lives. And we will win that debate. “]

    Wow…what a perfect paradox in closed mindedness. Narcissism at it’s finest. We welcome vigorous debate..we are fair and open minded…but let us make this clear before the debate begins; We are RIGHT…and God is on our side.

    It’s amazing how many people are susceptible to this guise and cannot see the falseness and sickness in this statement.

  31. JohnLopresti says:

    A person who has a scotus practice wrote a fairly comprehensive review of the caselaw approaches associate justice Thomas has taken with respect to speech; from TCGoldstein prepared remarks at a First Amendment Center symposium October 2007. A wider view of Thomas* tenure is available, also at FAC, there; the link is to a bibliography which includes a few external links to law literature. With respect to the corporeal violence of the jail system, a partial concurrence partial dissent contribution by Thomas in a 2003 case which discusses niceties in Michigan lockups is cosigned by Scalia, there. Scalia is in the public domain quoted in support of atavistic physical treatment of arrestees; [no link provided here]. The clerkship conduitry Thomas has provided FedSoc is an interesting perspective, reminiscent of the commercialization of the names of cherished sports stadiums. I doubt ACS would have interest in an endowed chair on that particular bench, however, as the publicity might tarnish image of both scotus and acs.

  32. readerOfTeaLeaves says:

    Because the partisan hack is going to launch a whole generation of lawyers (see also Citizen92’s focus on James Ho, who also went through OLC) who treat law like one big game of sophistry and human beings like objects into really prominent positions.


  33. Gitcheegumee says:

    It is stunning to me to see the accclerating indifference to torturing our fellow human beings..and even more egregious when it is being provided a fig leaf, a de facto imprimatur from the highest echelons of our supposedely civilized society.

    To go a step further,how has a medieval practice as repugnant and despicable as waterboarding become ‘business as usual” in such a short period of time,since there HAVE been prosecutions for this, in Texas, not very long ago?And it is a violation of the Geneva Convention?

    As such, I got to thinking about my 12 year Catholic education that stressed the importance of suffering-salvific suffering-and the desirability of daily mortification.(Didn’t waterboarding start with the Inquisition?)

    Well, I just checked out the religions of the Supremes, and 5 out of 9 are Catholic. And three-Alito, Scalia, and Thomas are reported to be affiliated with Opus Dei-the exclusive coterie of Catholics who are doing “God’s Work”-that’s what Opus Dei translates to.Wonder if they are employing the cilice under those black robes?

    I don not intend to insult any Catholics here,or in general, but when suffering is deemed redemptive,perhaps heir view of what constitutes torture is a whole lot different that other people’s -and,alas, they have the law to justify their interpretation .

    And,btw, Tony Blair became a Catholic,too,somewhat recently.I found that very curious.

    • Gitcheegumee says:

      This Wiki has a great deal of info on these practices:

      Mortification of the flesh – Wikipedia, the free encyclopediaMichael Geisler, a priest of the Opus Dei Prelature in St. Louis, wrote two articles ….. Recent theology affirms the practice of mortification. …. be transformed into or confused with the self-mutilating view of mortification. … – Cached – Similar

      • nomolos says:

        The catholic empire is a hate filled, bigoted, money grabbing, misogynist, child raping organization currently being run by a nazi. Yes I am Irish and I have seen the bastards first hand.

        • Gitcheegumee says:

          Perhaps Tony Blair could have intervened and gotten Yoo to write a “memo” regarding the church’s pedophilia problem.

        • posaune says:

          Exactly. It’s interesting that 99% of the pedophilia cases in the RC Church have been by Irish-American priest predators against Irish-American child victims. And the parents, in their Irish heritage, are so mortally afraid of sexual issues and terrified of authority, that they sucked it up and rarely stood up for their kids. There was one abuse case in the Bronx, in an Italian neighborhood, and the father of the victim, gathered his buddies up and went to the monsignor and told him that if the predator wasn’t gone by the next week, Vito & his friends would handle it themselves. Problem solves (in that parish, at least). But the Irish Americans? Ever the victim mentality, in every aspect of life. Wavpeac, weigh in please!

          • SeamusD says:

            do you have any links to backup that claim of 99% of the victims are Irish/American and their abusers are Irish/Americans

      • DWBartoo says:

        I had imagined that the Brits had somehow gotten that Whole God Business into a reasonable social and human perspective.

        Such a Gatso-viewed society as the Brits comprise are hardly in need of religious scolds who embrace preemptive war at the drop of a hint with a religiously ready wink at truth and at justice.

        Thank you for the link, fatster, I guess George W. was not the only one talking to God during the sex up … um … run up to the non-war war in Iraq.


      • jdmckay0 says:

        His wife is.

        Hmmm… interesting article in a significantly meaningless sort of way IMO.

        For one, Mrs. Tony sure sounds conflicted: she seems real committed to (at least membership in) Catholicism, but from that article had near nothing good to say about it… just critiques targeting the church’s barriers towards various agendas of social justice. Which, in and of itself, sort’a puts her concept of RCC in the context of a social advocacy group as opposed to some kind of redemptive facilitator (just trying to be delicate w/my language).

        I also find it interesting that the barriers she identifies have been pretty much immutable for +/- 2k years, and coincidentally (or not) those barriers have become more entrenched during the current Rome regime. That the nexus of Pope Ben’s ascension to the throne he now occupies happened during the Tony & Shrub Iraq obfuscation campaign… maybe just a coinky dink.

        However, particularly interesting (ok, not really but…) is the similarities in RCC’s & Tony’s behavior & modus operandi in these recent years:

        a) RCC knew about, ignored, then covered up lots of predatory Priest butt
        fucking of altar boys etc.

        Tony knew about, ignored, then covered up lots of torture EIT’s

        b) The similarities in both org’s actions fall (IMO) generally into
        categories of abuse. Can’t help wondering what Yoo would have
        divined from RCC Canon delineating the fine line between
        anal penetration of youth by trusted spiritual advisors and (yoo know
        what)… Maybe something about the Unitary Pope and “organ failure”…

        c) Most significant similarities, however, is in both cases (Blair/Bush
        abuses & RCC’s): neither fessed up to their transgressions, rather have
        done their utmost to sweep it all under the rug.

        Particularly regarding c), the utter waste of so much resulting from very deliberate refusal to acknowledge the simple truth in these matters really stands out. And by perpetuating the obfuscation, the messes endure… in fact for those doing the perpetrating, both the obfuscation & mess become habit… conditions of their lives. From both these groups we get a lot of hi-minded self-annointed wisdom that, we are told, is just a little beyond the comprehension of non-anointed mere mortals… pages and pages, books, volumes and volumes of stuff, but nowhere any evident intent to just be relied upon for giving the simple truth.

        So anyway, that Tony is seeking redemption in RCC seems like a lateral move to me. That he’s going to get about the same kind of redemption there as he’s meted out himself suggests to me there is some karmic justice in the universe, even if those dolts have so bs’d themselves into a persecution they call enlightenment that they don’t know WTF they’ve created themselves.

        • fatster says:

          If Tony is seeking redemption (rather than, say, responding to family pressure to join in the same faith with them), you have to wonder if he’s looking for absolution. And then you have to wonder if he understands in an immediate sense the consequences of his decisions, the unknown numbers of lives lost and horrific pain and destruction.

          Only he knows. Or should, but does he?

          (Just rambling thoughts. No need to respond. Thnx.)

          • Gitcheegumee says:

            The National Prayer Breakfasts originated with Vereide and the Fellowship of C Street. To this day, they continue to be the point of origin for this yearly event.

            Interestingly enough,last year,the keynote speaker to address the group was none other than Tony Blair.

            The full text of his speech is at the ekklesia link,and worth a look.BTW,wasn’t he teaching theology at Yale there for a while?

            Tony Blair addresses Obama’s first annual National Prayer …Tony Blair addresses Obama’s first annual National Prayer Breakfast. By staff writers. 5 Feb 2009. Tony Blair was invited to deliver the keynote speech to …
   › News Brief › World News – Cached – Similar

            National Prayer Breakfast – Wikipedia, the free encyclopedia”Tony Blair addresses Obama’s first annual National Prayer Breakfast”. Ekklesia. 2009-02-05. Retrieved 2009-04-28. …
   – Cached – Similar

    • posaune says:

      Yeah, & I’d like to know how many in the FBI (besides Freeh) & those in the CIA/aka Blackwater are those Escriva types. From an Irish immigrant family, I still remember my father quoting old Joe Kennedy, “I want my kids to get a secular education so that they can relate to the rest of the world.” And, my dad still closed his medical office on Kennedy’s inauguration and went to mass and hosted the neighbors for Guiness to celebrate Catholics being mainstreamed. He was so proud. And now I am so ashamed.

      • Gitcheegumee says:

        Eric Prince has converted to Roman Catholicism – and may be a member or associate of Opus Dei, a very conservative cult now described as a prelature that is a strong ally of the current pope, Benedict XVI, who – when he was a Cardinal – paved the way for the beatification and canonization of the cult’s founder, St. Josemaria Escriva by his predecessor, Pope John Paul II.

        Here is a brief description of Erik Prince’s religious background

        The founder and CEO of Blackwater is Erik Prince, son of Edgar Prince, the now deceased businessman from Holland, Michigan. Erik began his political career working as an intern for Gary Bauer at the Family Research Council and also worked in the Bush I White House, although he thought that this administration was too liberal.
        Unlike his family, which is part of the Christian Reformed Church, Erik Prince is a Catholic. He most likely became Catholic when he married his first wife, who died of cancer shortly after they were married. Interestingly enough, most of the leadership at Blackwater is also Catholic, albeit a conservative wing of the church that is quite reactionary. Erik Prince is personally connected to conservative Catholic groups like Catholic Answer, Crisis magazine, and a Grand Rapids-based group, the Acton Institute. But Prince has not abandoned his Protestant/Evangelical roots and is a close friend of Watergate criminal turned believer Chuck Colson. They have shared the podium on several occasions, even once at Calvin College. According to Scahill, Prince is aligning himself with a new Catholic/Evangelical alliance called “Evangelicals and Catholics Together.” The ECT manifesto states:
        “The two communities in world Christianity that are most evangelistically assertive and most rapidly growing are Evangelicals and Catholics.”

        Prince himself writes about this relationship and it’s importance, particularly with the mission of Blackwater. Prince says “Everybody carries guns, just like the Prophet Jeremiah rebuilding the temple in Israel – a sword in one hand and a trowel in the other.”

        Link to follow

        • Leen says:

          Onward Christian Soldiers. Killing Muslims is a Crusade for some of these terrifying thugs.

          They need to keep promoting “they hate us for our freedoms” Instead of the truth…they hate and fear us as a direct response due to our policies in their part of the world

    • bobschacht says:

      …how has a medieval practice as repugnant and despicable as waterboarding become ‘business as usual” in such a short period of time,since there HAVE been prosecutions for this, in Texas, not very long ago?And it is a violation of the Geneva Convention?

      The Republican M.O. was to allow neutral news reports of torture “enhanced interrogation techniques” to appear over and over, until they no longer shock, and become “normal.” And if anyone dares to call a spade a spade (e.g., to call water-boarding “torture”), you attack them for “criminalizing policy differences.” Add in TV programs like “24” that glorify torture, and you get a public that has been vaccinated against being shocked by allegations of torture.

      Bob in AZ

      The American public

  34. Sara says:

    Well, depending on whether the Pakistanis release him to the FBI, we apparently have ourselves a true Al-Quada high leadership capture, announced today in the Pakistani Press.

    Sometime last week Pakistani ISI captured “Azzam the American” or Adam Godham,or Adam Pearlman, natural born American, Orange Co. California. Apparently converted to Islam in 1997 by KSM, (sounds strange) and had a million dollar reward on his head for the past two years.

    Captured in the suburbs of Karachi, in a Pashtoon area controlled by the Mehsud Tribe. He was indicted for Treason in San Diago in 2006 by Debrah Wong. Particularly well known for making video featuring himself and his Southern California Accent, posted to Jihadi websites. Just yesterday one was released praising Major Nadal Hasam, the Texas Army Psychiayrist under multiple murder indictments. Video suggested American Muslims take Hasam as jihadi role model. He was apparently very close to top al-Quada leadership over the post 9/11 period.

    So first question, does Pakistan turn this American Citizen over to the FBI? If so, does he go to a Military Commission, or to the Southern California Federal Court that indicted him? No indication whether the FBI has had any success interviewing him.

    • BoxTurtle says:

      Pakistan decides extraditions on a case by case basis, so the answer to the question is “If it’s in their best interests”. ObamaCo might have said something like “We’re filing the paperwork, please sit on it”. Or they might have said “Fork him over”. Both sides have significant leverage on the other, so I’d say possession is 90% of the law in this case. If Pakistan turns him over, he’d go to the real court, they’ve already filed paperwork on him meaning they think they can get a real conviction.

      In the old days, a nice deal might be struck wherein we rescue him from the ISI in return for his cooperation. Nowadays, it might work the other way.

      Boxturtle (You the fingernail guys or the genital scalpel guys? Because it matters…)

      • MadDog says:

        I somewhat disagree on your scenarios. Here’s my possible scenarios:

        1. The US “pretends” it twists Pakistan’s arm to have them turnover Adam Gadahn, but knowing full well that the Obama Administration has removed the the dozen+ HVD EITs (torture techniques) from the CIA’s toolkit, they give the Pakistani’s a wink and nod to use their own techniques all the while feeding the Pakistani’s questions to pose to Adam Gadahn. After a couple of weeks, the Pakistanis “relent” to US pressure and hand Adam Gadahn over.

        2. The US actually gets Pakistan to immediately turnover Adam Gadahn. Now what to do? After all the Repug bashing the Obama Administration took with the Underwear Bomber Umar Farouk Abdul Mutallab on Miranda and US law enforcement custody, the Obama Administration is stuck with a dilemma. They’re loathe to repeat the same Repug bashing experience with Adam Gadahn, but they still harbor a desire to do “law enforcement”.

        Adam Gadahn, as an American, knows full well to keep his mouth shut and demand a lawyer.

        The Obama Administration hems and haws a bit, but decides to do the “split the baby” and do the following:

        A. Name Adam Gadahn as an Enemy Combatant and install him in the Charleston, South Carolina Brig (former home to Jose Padilla). Instead of the now off-limits CIA EITs (torture techniques), the Obama Administration decides to use the recently created High-Value Interrogation Group (HIG) to “interrogate” Adam Gadahn in the Charleston Brig.

        Lest someone believe that Adam Gadahn will be living the high life while ensconced in the Charleston Brig, remember that the while the CIA’s EITs (torture techniques) are off-limits, the techniques in the Army FM 2-22.3 Human Intelligence Collector Operations are their replacement, and they are no fun “walk in the park”.

        As Adam Gadahn as an Enemy Combatant undergoes HIG interrogation for some weeks/months, the Obama Adminstration states that once they are through with his POW interrogation, they will decide upon a course to prosecute him.

        At play then will be the ongoing Obama Administration dithering about Article III Courts versus Military Commissions. Depending on the final Obama Administration dither, Adam Gadahn will either be tried for Treason in an Article III Court using “only” that evidence gathered before his capture and separate from any “evidence” gained from HIG interrogation, or Adam Gadahn will face charges in a Military Commission for anything they can use under Military Commission rules.

        As for whether the Obama Administration dithering produces an Article III Court or a Military Commission, place yer bets now.

        In any case, one can rest assured that nothing will stop the Repugs, and particularly their Cheney Family leadership, from bashing the Obama Administration and insisting that Adam Gadahn should be sent to Guantanamo and undergo the CIA EITs (torture techniques), most notably Waterboarding since everybody knows it always works and always produces actionable, reliable intelligence.

        • PJEvans says:

          He is apparently under indictment in CA already.

          Gadahn, 31, is the first American since the World War II era to be charged with treason. In 2006, a federal grand jury in Orange County indicted him for allegedly providing material support to Al Qaeda by appearing in videos on five different occasions between Oct. 27, 2004, and Sept. 11, 2006, with the intent “to betray the United States,” the indictment stated.

          (LA Times)

          Whether the indictment was good or not is another question – I wonder whether he meets the requirements for treason charges.

          • MadDog says:

            Yup, but that doesn’t mean it will immediately trump the Enemy Combatant status pressure, and with the Obama Administration playing kissy-face with Senator Lindsey Graham on Military Commissions and Indefinite Detention laws, I’m betting they bow to Graham.

            And further, I’m guessing that an argument will be made that Enemy Combatants are not entitled to legal representation during a HIG interrogation.

            • MadDog says:

              ABC News and CNN are now saying the capture of Adam Gadahn may not be accurate, but instead it may be the capture of another Al Qaeda American by the name of Abu Ya-ya with a hometown in Pennsylvania.

              I guess we’ll see.

              • MadDog says:

                From CBS News:

                U.S.-Born al Qaeda Arrest News Incorrect
                Confusion Over Militant’s Identity Sparked Reports of Gadahn Arrest; Some Media Say It is Another U.S.-Born Terrorist

                …Now, CBS News’ Farhan Bokhari in Islamabad writes that earlier reports the detained individual was Gadahn proved false. According to a Pakistan security official who spoke with CBS News on condition of anonymity, the arrested individual is in fact “a Taliban militant leader who is known as Abu Yahya…”

                …The New York Times, sourcing American and Pakistani officials, reports that the man arrested was Abu Yahya Mujahdeen Al-Adam, and describes him as an al Qaeda commander who was born in Pennsylvania…

                • MadDog says:

                  And from the NYT:

                  American Qaeda Operative Arrested in Pakistan

                  An American Qaeda operative was arrested in the sprawling southern city of Karachi in recent days by Pakistani security officials, Pakistani officials said Sunday.

                  American and Pakistani officials said the man arrested was Abu Yahya Mujahdeen Al-Adam, who was described as having been born in Pennsylvania and who was thought to be affiliated with the operations division of Al Qaeda, commanding fighters in Afghanistan…

                  …Initial reports seemed to have confused the American with Adam Gadahn, a California native who has been a spokesman for Al Qaeda and often appears on videos calling for strikes against targets in the United States…

                    • MadDog says:

                      Josh Gerstein over at Politico seems to agree:

                      Gadahn capture could roil terror trials debate

                      The reported capture of American-born Al-Qaeda spokesman Adam Gadahn in Pakistan is sure to add even more heat to the already-white-hot debate over whether alleged terrorist operatives should be tried in ordinary criminal courts or in front of military commissions…

                      …However, Gadahn’s case raises new issues that could test the positions of various players in the debate, as well as the views of the public. Gadahn is already under indictment for treason and other charges in a federal court in California…

                      …Gadahn could, theoretically, be tried before a military commission. An American citizen working for Germany was tried before one in WWII and executed. But would the Obama Administration do that? Would they send him to Guantanamo, even though the Bush Administration didn’t knowingly hold American prisoners there? Could the U.S. legally hold him at Guantanamo?

                      “He’s the odd case,” said Bill Martel, a professor of international security studies at Tufts University’s Fletch School. “I’m very skeptical that they’d dump an American at Guantanamo. I think that’s a bridge too far…”

                    • fatster says:

                      According to, word from Pakistan now is that it was some other American citizen who was captured. But things are so confused that tpm is reluctant to buy into any particular story right now.

                • Jeff Kaye says:

                  Could be an honest error, or a counterintelligence ploy to see what chatter or other movements might take place if reports of Gadahn’s capture took place. The latter certainly takes place, but I don’t know how often, how much is FUBAR, a hungry reporter, a bureaucrat looking for attention, etc.

            • harpie says:

              Thanks for this discussion. I am quite alarmed.

              Please read the text of the following Bill which John McCain [working with Lieberman and Graham…and Rahm?; and continuing Rumsfeld’s plans], have just introduced in the Senate:
              ‘‘Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010’’; March 4, 2010 (12:06 p.m.)

              Here is the link to a quick analysis of the language from ondelette, who is quite knowledgeable about the subject and considers this a “very dangerous bill”:

              Seymour Hersh has written quite a bit about our transition into these dangerous waters, which I condensed in three comments [with links to original articles] at Salon, here:

              Here, again is MadDog’s link to Wikipedia’s “High-Value Interrogation Group”.
              Retrieved from

              Looks like we’re still writing laws in an attempt to “legalize” actions we’ve already taken.

          • cinnamonape says:

            What a Long, Strange Trip It’s Been

            Adam Gadahn’s journey from the goat ranch as the home-schooled son of a former psychedelic underground ground rocker of the 1960’s…to a runaway death-metal teen who showed up on the exotic mansion of his grandfather, Zionist Kenneth Pearlman, a founder of the Anti-Defamation League in Orange County…who takes up Islam but is arrested for fighting in the LA mosque.

    • DWBartoo says:

      Which is precisely why he “believes” in plantation “justice”.

      However, both Thomas and Scalia are clearly deontological “believers” as well, separating “actions” from their human “consequence” as a matter of “unique” course. They may well have arrived at this fellowship by different “methods”, which have not been lost upon those who those who have served these Justices.

      Thomas and Scalia will be hard-pressed to see anything untoward, in what has gone on.

      Chief Justice Roberts may well remember Hudson, as Wilkins v. Gaddy suggests, yet if torture is proved to him, malicious and “unprovoked”, then Roberts is in a quandary, for the trail of its crumbs leads right to his primary benefactor’s door.


  35. JThomason says:

    Its amazing the banal dimensions this intrusion of tyranny has taken on in our society from G H W Bush’s toy soldiers left in the White House from G W Bush campaigning using “war lord” rhetoric with no battle field experience and the launching pad of the Texas state house.

    There is no doubt of the organization of this movement to away from an understanding of the inherent rights of the individual in the sanctity of the body from the Federalist Society’s agendas, to those of PNAC, those of the corporate Pioneers and arguably to AIPAC as well with an infusion of a facile inquisitional style theology into American Constitutional jurisprudence. That these are reflections of greater demographic and economic pressures may be suggested but in a media infused society with the technological capacities for abundance the true historic dimensions remain difficult to assay.

    Its doubly amazing to come here and observe the chronicle of the day to day unfolding of the emergence of this “neo-feudalism.” I check out what is going on here though I don’t have much to say any more as I am not as able to stay immersed in the detail as many of you here. And part of this is in having reached conclusions in having reached an aversion threshold. I have hoped a tipping point had been achieved on many occasions only to be disappointed. Perhaps we are still building toward a precipitation of decency. I appreciate the heroism of the continuing efforts to create an accessible coherent record of these events.

  36. Gitcheegumee says:

    Tony Blair received into Catholic Church, Vatican welcomes him …Dec 24, 2007 … Cardinal Murphy-O’Connor commented: “I am very glad to welcome Tony Blair into the Catholic Church. For a long time he has been a regular … › News › Vatican – Cached – Similar

    This is one peach of a link./s

    BTW, thanks,fatster

  37. DWBartoo says:

    For those seeking a little exercise for their fingers:

    Arlen Specter has a post up at Huff Po entitled, “The Court Must Defend Torture Victim’s Rights”.

    It is … interesting.


  38. JohnLopresti says:

    Slightly different report of the ostensibly now banned physical inducement based modality of interrogation utilized by seven distinct agencies at gtmo, 10pp article with 32pp of variously redacted or low-resolution imaged descriptions of 24,000 mostly likely videotaped sessions 2002-2007. [1MB] Authors are the profs and clinic students or fellows at SetonHallCenter for Policy and Research. Mostly the content is covered in numerous other reports, including the OIG compendia, and all the reference documents are described as residing in the public domain. It is interesting to measure the academic abstraction layer which seems to be the report*s fundamental approach to narrative, as set against an assessment of what appears much closer to political speech from two scotus members on perhaps similar issues of physical maltreatment in detainee management regimes.

  39. orionATL says:

    gitchegomee @87

    mel sembler was a minor character in ew’s story “the spy who was pushed out in the cold”.

    sembler was, i believe, bush’s ambassador to italy when the fake niger uranium ore letter was making its way to our shores to assist gw in stampeding the press and the congress into the invasion and occupation of iraq.

    he may also have led an effort to raise money for scooter libby’s defense but i’m not as sure of that memory.

    perhaps a kind of republican party david margolis – you need something done? call mel.

    • Gitcheegumee says:

      Reading this story by Conason,and the links he provides to Reason magazine articles is akin to reading about the enhanced interrogations at Abu Grhaib.

      Behind Liz Cheney’s group, a weird legacy of torture – Joe Conason …Feb 9, 2010 … Financing Cheney’s pro-torture front is Melvin Sembler, who once enabled. … U.S. ambassador to Italy Melvin Sembler, financier behind Liz … – Cached

  40. Leen says:

    Yowser. Thanks for this EW. Sounds like Thomas did his part to birth the twisted thinking of those who re- wrote torture laws.

  41. orionATL says:

    gitcheegumee &110

    sorry about the mispelling. having been raised in tennessee and florida, i should have sensed the indian name. truth is, decades later, i’m no better a speller than when i first read longfellow).

    your recent posts on the mistreatment of children and adults, and sara’s comment above, put the american lust to harm others deemed “worthy” of being harmed in a wider perspective.

    what we have become in our indifference both to treatment of domestic, “you broke the law, fucker” prisoners and

    national security-foreign conflict, “you tried to kill us, fucker” prisoners,

    brings us closer and closer to the savage behavior we condemn.

    it’s the existentialist dilemma:

    who is the prisoner?

    the imprisoned person or the guard?

    or both? (see quantum mechanics, but don’t call me for an explanation)?

  42. orionATL says:

    continuing from @116

    now connect domestic prisoner abuse (american public and private prisons)


    foreign conflict prisoner abuse (guantanamo)

    and then, concatenating,

    with bmaz’s post within the week about police abuse of ordinary citizens in NYC (and no, i did not forget to put abuse in quotes. abuse is what it is!)

    and you have a picture of a society that is losing its sense of empathy.

    while lack of empathy is one of the hallmarks of the right wing personality.

    any of us, and all of us, can be swept up in a natipnal convulsuion of punativeness.

    that happened first with the war on drugs dragnet,

    then with the al-quida dragnet in 2003 (which became guantanamo),

    and between these two poles the abuse of ordinary citizens by


    the evolution of police into a quasi-military organization with “swat” teams,

    police units authorized to hunt and kill humans.

  43. orionATL says:

    citizen92 @119

    aspens indeed!

    how the hell do you come up with this stuff?

    are you “hullabaloo” with a new pseudonym?

  44. Gitcheegumee says:

    In reference to the above post, there is an allusion to Prince and ex-Watergater Chuck Colson.

    Chuck Colson created a Prison Ministry through much assistance of the C Street Group known as the Family aka the Fellowship.The Insider Magazine article refers to this in “Christian Mafia”. (The founder of Alcoholics Anonymous was also aligned with this CStreet Group,too.)

    Colson retired a cuople of years ago and the mantle was handed to Timmis.

    VERY interesting,how these synchronistically mirror the physical locations re: the Ave Maria Law School,referred to upthread.

    Prison Fellowship founder Chuck Colson has announced his …Prison Fellowship founder Chuck Colson has announced his resignation as chair of the … Timmis is the co-owner and vice chair of Talon LLC, a Detroit-based ……/ai_n16866389/ – Cached

    Faith and Ale – Speakers Naples Fl… succeeding Chuck Colson in 2006. He was a senior partner in the law firm of Timmis & Inman, L.L.P. and co-founder and vice-president of Talon LLC, … – Cached

    The Official Web Site for the Archdiocese of Detroit”Because of Chuck Colson and his desire for unity in the Body (of Christ), … As vice chairman of Talon LLC, which has investments in manufacturing ……/070330+MCN+-+Catholics+sought+for+work+in+Prison+Fellowship.htm – Cached

    WHY does that name Talon,LLC seem so familiar?

  45. JThomason says:

    Chuck Colson created a Prison Ministry through much assistance of the C Street Group known as the Family aka the Fellowship.The Insider Magazine article refers to this in “Christian Mafia”. (The founder of Alcoholics Anonymous was also aligned with this CStreet Group,too.)

    The information about AA here is inaccurate. The C Street Group may be an offshoot of the Oxford group but AA was quite self conscious in distancing itself from the errors of politics and religiosity which plagued the Oxford Group and the earlier Washingtonians. Even though Ebby of the Oxford group initially provided glimpses of transformation and an opening for AA founders to contact and become familiar with Carl Jung, AA avoided creating an atmosphere of dogma around the concept of “higher power.” Ebby was unable to maintain sobriety. The functional usefulness of the uses of a transcendent concept in change are duly noted by Gregory Bateson.

    Though there are strains of fundamentalism in particular groups of AA to ascribe an alignment with the religiosity treated in this thread is misguided and engenders misunderstanding. AA has no religious test.

    • Gitcheegumee says:

      The Moral Rearmament Group, headed by Buchman , a former Lutheran minister, was quite influential for a certain period of time.

      Vereide and Buchman’s affiliations are discussed in some length in this link re: the influence of Buchman’s Oxford Group’s teachings upon the founding principles of AA.

      Early Experiential EmergentsMay 21, 2009 … Sharlet described a key meeting between Buchman and Abram Vereide, founder of The Fellowship, in a subsection of chapter 5 titled … – Cached

      • Gitcheegumee says:


        Roots:The First Century Christian Fellowship Campus …Jun 19, 2009 … The “First Century Christian Fellowship” Campus Crusade in the 1920s. From 1919 through the mid-nineteen-twenties, Frank Buchman pursued his … – Cached – Similar

        To begin with, AA’s co-founders stated very clearly that AA’s spiritual principles came either from the Bible or from Buchman’s “A First Century Christian Fellowship” ……

        • bobschacht says:

          I share JThomason’s views on your allegations, and would add only this: You can point to roots all you want, but with AA, all that matters is what is in the Big Book, the 12 Steps, and the 12 Traditions. There’s a lot in the The First Century Christian Fellowship that did not make it into those 3 basic sources for AA.

          Also, AA is a grass-roots organization without a command structure. Local groups are autonomous, and it may be that some of them are dominated by members who are themselves, as individuals, believers in the First Century Christian Fellowship program (or Communism, or Zen Buddhism, or “est,” for that matter.) But let’s not put the cart before the horse. What individual members believe is not AA.

          Bob in AZ

      • JThomason says:

        I am not sure you understand my comment concerning the break from religiosity, the disavowal of opinions on political matters, and the anti-theological principle engendered in AA’s traditions. It is true that as I noted that there was contact with Oxford group in the origin of AA. I would dispute that Abram Vereide or Buchman are founders of AA.

        Specifically AA disavowed the four purities espoused by the Oxford group and any test of witness. Though there are both religious and psychological references that competed in this formative period, an open understanding of powers “not self” was the principle that gained institutional embodiment.

        As I understand it the comments concerning “other” made earlier in this thread describe the attitude embodied in post-modernist terms. What Derrida might say in describing the gesture beyond self is that a re appropriation of narcissism is involved. Again I say an attempt to align AA with fundamentalism is misguided. There are both strains of atheism and fundamentalism in AA. A stated tradition of AA is that AA has no opinion on outside issues. There is no political or religious test.

        AA additionally is self-supporting and eschews outside contributions. It is true that AA has received endorsement from clergy, physicians and business people. Its concern is recovery from Alcoholism. In as much as it is largely composed of autonomous self-governed independent anonymous groups, historical characterization is misplaced and largely speculative.

  46. Gitcheegumee says:

    WaPo Discovers C Street | EmptywheelJun 26, 2009 … The Family, also known as The Fellowship, consider themselves followers ….. C Street is a six-bedroom house in Washington owned by a religious …. The Doctor, Bill W. who “founded” AA was part of the spiritual group ……/wapo-discovers-c-street/ – Cached – Similar

    NOTE: I think you will find the comment @#70 fascinating. I did.


  47. rosalind says:

    toyota-related: latest from la times – Toyota workers raised quality, safety concerns with bosses in 2006 memo

    All six Toyota veterans around the table agreed: The memo they were about to send to senior management could damage their careers.

    The workers had recognized a troubling trend. In recent years, the automaker had kicked into high gear to fill the booming U.S. demand for smaller, more gas-efficient vehicles.

    The union men had watched the company take what they believed were dangerous safety and manpower shortcuts to lower costs and boost production.

    Alienating bosses could make the men company pariahs. But they knew they had to sound the alarm. From 2000 to 2005, their memo pointed out, Toyota had recalled more than 5 million cars — 36% of all sold vehicles, a rate higher than other companies.

    Toyota’s failure to act, the two-page notice warned, may “become a great problem that involves the company’s survival.”

  48. JThomason says:

    Bill W. was not a doctor. He was a stock broker. There are biblical facets incorporated in the primary texts specifically the recommendations in the book of James but it is not Biblical fellowship. It is not Christian, it is not Biblical, it is not religious.

    I have read comment 70 in the link you site and it really has nothing to do with AA. It may be true that Bill W. rubbed elbows with these folks. He was a promoter. He rubbed elbows with lots of folks. The point is that the principles of AA were not dictated to its participants but suggested and the religious features softened to an entirely subjective psychological context because so many of the actual suffering alcoholics who were instrumental in establishing the principles of the fellowship thought that too much religion would alienate those that might benefit from the fellowship from possible further participation. And this break from Christian dogma is embodied in its principles. There is no restriction against being Christian either. A person is free to adopt any religion or non religion they choose in AA. The content of belief is not the issue.

    The point is that while Bill W. was more zealous in the religious dimensions he acquiesced to the to the better sense of those with whom he was seeking a solution. Wilson was a hopeless alcoholic with vast experience with loss of work and institutionalization.

    You do a disservice by positing an alignment between the C Street Group and AA. It does not exist. Of course one can shake any historical tree and some monkeys will fall out. AA is composed of recovering alcoholics some professional, some street people. There are many of many stripes and varied experience. It has no opinion on outside issues and has absolutely no involvement in politics. It requires little, though there are suggestions. The only requirement for membership is a desire to stop drinking. It is not a hierarchical organization.

    OK I bit. Peace and more power to ya.

    • Gitcheegumee says:

      Mr. Thomas, I respect your post and your opinion on AA.

      There is quite a bit of history for those inclined to learn more.

      I have no interest in doing a disservice to anyone.None of us stand taller on the backs of our fellow man.

      And if you get the inference that I posited a CURRENT alignment, perhaps that is my lack of writing skills or a need to reread my posts.

  49. bobschacht says:

    Hey, fatster,
    I think I’ve got a lead to solve the question of the origin of the Lone Ranger gag where the LR sez to Tonto something like, Uh oh, we’re surrounded by those Indians, and Tonto replies, what do you mean “we,” White Man?

    I’ll bet it was a Bill Cosby! He had a number of LR & Tonto jokes back in the day, and it sounds like something he’d come up with.

    Bob in AZ

  50. PJEvans says:

    Apparently Thomas, who was at one time a lawyer for Monsanto, is not recusing himself from the case involving them that’s coming up.
    Breyer’s brother was a judge on this case at an earlier stage in the process, and he apparently is recusing himself.

    Nice comparison of ethical standards there.

Comments are closed.