Elena Kagan and Maher Arar

Remember how I suggested one of the bright sides of Elena Kagen’s nomination to SCOTUS would make Republican heads explode when they realize Hamdan lawyer Neal Katyal may be Acting Solicitor General?

Well, keep your eye out for splattered fearmonger brains, because Katyal just signed a document as the Acting Solicitor General.

Though perhaps their heads won’t explode.

Because, as Lyle Denniston points out, Katyal’s assumption of the Acting role here significantly diminishes Maher Arar’s chances of getting his suit against the federal government for his rendition to Syria and torture heard by the Supreme Court.

The Supreme Court has not yet scheduled Arar’s case for its initial examination.  The Justices are expected to do so, however, before the current Term ends in late June.  Justice Sonia Sotomayor, who as a Second Circuit judge had taken part in the lower court’s en banc hearing (but not its decision) has not yet indicated whether she would take part in the case as it proceeds in the Supreme Court.  So far, the Court has not issued any orders in the case that would show whether she had opted to take part.  Her recusal, however, appears likely.

If the Court were to grant review of the case, it would not be heard and decided until the next Term, starting Oct. 4.  Justice John Paul Stevens will no longer be on the Court then, and Kagan, if approved by the Senate, could be on the bench by then.

The Court’s changing membership, and the prospect that Justice Sotomayor would not participate in the Arar case, might not only have an impact on how the Court would rule if it took on the case, but may well influence whether it is willing to grant review at all.   If, as expected, the case is put to an initial vote this Term on the question of review, the Justices could be deterred from voting to grant because of the possibility of a 4-4 split were the case to be decided. assuming Sotomayor’s recusal.  (Justice Stevens is expected to be on hand for that initial vote.)

If the case were granted, the question would arise whether a new Justice Kagan (assuming Senate confirmation) would take part in the decision.  Although she did not sign the U.S. brief filed Wednesday, it seems highly likely that she had participated in internal discussions of the position the government would take in that brief, and thus might feel compelled to disqualify herself from its consideration by the Court.  That would raise the prospect of a 4-3 split, with the Court’s four most conservative Justices in the majority.  That is a prospect that perhaps could lead those four to vote for review, but could lead the Court’s more liberal Justices to refrain from supporting review.  (Both a 4-4 split, without Sotomayor, and a 4-3 split, without Sotomayor and Kagan, would probably result only if Justice Anthony M. Kennedy declined to side with his more conservative colleagues and voted with the more liberal Justices.)

This elaborates on a point that Michael Isikoff already wrote about–the way in which Kagan’s nomination and probable confirmation increases the chances that SCOTUS will back Bush and Obama Administration policies on counterterrorism.

Whatever her merits as the next Supreme Court justice, Elena Kagan’s selection provides a hidden benefit for President Obama’s national-security team: it significantly boosts its chances of prevailing in controversial claims to the court involving the war on terrorism.

The reason: Kagan will inevitably have to recuse herself from an array of cases where she has already signed off on positions staked out by the Obama administration relating to the detention of terror suspects and the reach of executive power. As a result, the seat occupied by Justice John Paul Stevens—the most forceful advocate on the court for curbing presidential power—will be replaced by a justice who, on some major cases over the next few years, won’t be voting at all.

“If you are litigating on behalf of Bagram detainees, the skies just got a lot darker today,” said Ben Wittes, a legal-affairs analyst at the Brookings Institution.

Now, there is an exception to this premise: those cases coming out of the 9th Circuit (which might include the Jeppesen suit, the al-Haramain case, and the Padilla-Yoo suit). If the 9th circuit rules in favor of the plaintiffs in any of these cases, and Kagan’s likely recusal were to create a tie in SCOTUS (assuming Kennedy voted with the liberal judges, which might be even more likely for cases coming through the 9th), that would leave the 9th circuit decision intact.

Nevertheless, none of that is going to help Maher Arar obtain some kind of justice for his kidnapping and torture at the hands of Americans.

Oh, and on whether or not the fearmongers’ heads will explode at Katyal’s involvement? The brief signed by Katyal contends that the torture of Arar is incidental to this suit.

This case does not concern the propriety of torture or whether it should be “countenance[d]” by the courts. Pet. 14. Torture is flatly illegal and the government has repudiated it in the strongest terms. Federal law makes it a criminal offense to engage in torture, to attempt to commit torture, or to conspire to commit torture outside the United States. See 18 U.S.C. 2340A. The President has stated unequivocally that the United States does not engage in torture. See May 21, 2009 Remarks by the President on National Security; cf. Exec. Order No. 13,491, § 3, 74 Fed. Reg. 4894 (Jan. 22, 2009) (directing that individuals detained during armed conflict “shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture)).”

I’m particularly bemused by Katyal’s reliance on Obama’s repudiation of torture. I realize that Obama’s repudiation is somewhat more credible than the many times that Bush claimed we did not torture (though less and less so of late). But it would seem particularly relevant that even while Bush was proclaiming his opposition to torture, detainees in our custody and held overseas at our behest were being tortured during precisely the same time period that Arar was rendered to be tortured in Syria.

Nevertheless, Hamdan attorney and now Acting Solicitor General Neal Katyal says that the issue is not Arar’s torture, but narrow questions of whether Arar can even ask for some relief in the US Courts.

72 replies
  1. emptywheel says:

    Anyone wondering whether Kagan is not resigning but is apparently not acting as SG has to do with the way Dawn JOhnsen missed a year of work but never got her sought for appointment to OLC?

    • Mary says:

      Maybe that, but I also think that they want to be able to “lose” the Kagan vote on anything important to them and it keeps a recusable option on the table (oh, no no no sweetie, lil Elena didn’t vote for torture, she just couldn’t vote bc she was SG while the case was working its way up the pipeline)

      After Citizen’s United, you have to figure it’s not bc they really want to lose her wondrous skills of oral persuasion in the event she doesn’t get the gig.

      Thanks so much for this piece, EW. It’s all particularly relevant bc Obama has specifically opted in for rendition, whatever he has or hasn’t said about torture. I don’t know that anyone at any time has asked for the treaty-required “assurances” we were supposed to have received re: Arar before Pepsico’s Gen Counsel, Larry Thompson (then DAG) sent Arar to Syria (or more specifically, sent him to Jordan which would not have been an acceptable destination under any calculus except for one where the *solved for* is ending up in a torture cell in Syria).

        • Mary says:

          That’s what I meant about it not being an acceptable destination under any calculus and it’s something that seems to get ignored a lot. Yes, Arar did have dual citizenship (Canadian and Syrian), but when the US kicked him out, it didn’t even have a relationship with Syria and it did with Canada, so what was the justification for sending him to Jordan – where he had no citizenship tie – rather than Canada, but-for torture.

      • bmaz says:

        You almost half wonder if Obama didn’t pick Kagan for the court because they really needed to get somebody competent at Solicitor General.

        On a slightly less tongue in cheek note, why is everybody so convinced Kagan will recuse on all these cases? There is no mandate on a Justice to recuse as Scalia has demonstrated (Alito too I think).

        • Mary says:

          I think that is a part of the catch-22 of it all (although I think direct participation in the case is required recusal, while merely sharing a beer with a torture defendant while they pick out people to have assassinated isn’t, something like that /s). But the catch-22 is that she either recuses or sets a horrible precedent on recusal (and since Marshall recused as well, I think she will be on a lot).

          So I guess EW has a broader context to her Q @1, when you think about it. We are going to be paying her to not participate as SG, only to then pay her to not participate as a Justice. How kewl.

          BTW – I kept hearing the talking point about how her hiring was ideologically diverse, even if not gender and racially diverse, so I was wondering – – Goldsmith’s name kept coming up on the ideologically diverse talking point, but where was the screamming liberal appointment equivalent that she made in her ideologically diverse appointments? I’m thinking there must be some, but I don’t have the hires to cross-check.

          Finally – the dailybeast has a really disturbing piece up on two Iraq war vets who were charged with war crimes, running for Congress and touting their actions as a job qualification.


          It’s only a matter of time now for Dems to start wanting to have their own war crimes that they can boast about when they are running. Oh, wait. Nevermind.

        • boltbrain says:

          “…why is everybody so convinced Kagan will recuse on all these cases…”

          Sometimes the first hint you get that you’ve pissed in someone’s Egg Benedict in Washington is a phone call from someone in the Sol-Gen’s office for an informal OTR chat. It’s in the mandate.

        • earlofhuntingdon says:

          Precisely. I don’t think those informal chats – or their absence, meaning you’re not worth one – are adequately publicized.

      • earlofhuntingdon says:

        Yep. That’s exactly what her short stint as SG was all about.

        Ms. Kagan already had credentials as an administrator, but not as a senior government official. She lacked experience as a senior legal official and was hopelessly inexperienced about trial and appellate work, except by virtue of employing others to train raw students.

        It would be much easier to get Kagan a seat on the Supremes as an insider than were she still at Harvard, especially after she was passed over for the university’s presidency. It gave her and the Democrats a trial run, ushering her through the Senate confirmation process in a senior, but subsidiary position. It sends a message to top Democrats about her importance to Obama. Lastly, it gives her a smidgeon of what she most lacks, familiarity with the inside of a courtroom. Pure theater and resume padding.

        Interesting to see how much more thought Obama has given Kagan’s career path than Dawn Johnsen’s or the soundness of the DoJ post-Bush.

        • BillE says:

          Has anyone heard from Marty Lederman since he went to OLC? Seems like the Borg, once in you are assimilated.

  2. Mary says:

    A. Wonder if Thompson will be one of the Elena gushers?
    B. Wonder why no one mentions this case when they are all claiming that swapping Kagan for Steven won’t make a difference bc it is swapping a “liberal for a liberal”
    C. I just got an email from Leahy’s campaing office about how he is going to be doing a Sunday show, extolling Kagan’s virtues. I couldn’t be more sad – since the Obama election, Leahy (and Whitehouse/Feingold to some extent as well) have made me more sad that Obama.

    • emptywheel says:

      B) I just don’t know what basis ANYONE thinks swapping Stevens for Kagan on executive power won’t be more pro-executive (but then, these discussions often pretend that pro-executive stances are only found among the hard right). Aside from there being no basis to think that, Kagan was a member of two strong exec Dem Admins.

      C) I think Feingold has maintained his independence more, but yeah, Leahy and Whitehouse made me particularly bummed during the PATRIOT process.

    • Leen says:

      “I couldn’t be more sad – since the Obama election, Leahy (and Whitehouse/Feingold to some extent as well) have made me more sad that Obama.”

      Yeah for a little while those three fellows had me believing that they actually believed that “no one is above the law” A little while. Reality bites

  3. b2020 says:

    > Kagan’s likely recusal


    > I realize that Obama’s repudiation is somewhat more credible than [..] Bush



    Sorry. Much better now.

    As for Kagan recusing herself, that somehow supposes that they have some shame. They have no shame.

  4. b2020 says:

    “narrow questions of whether Arar can even ask for some relief in the US Courts”

    I can agree with that. Arar simply has no standing. As far as I can tell, the Torture Covnention and other applicable law places the responsibility for investigating and prosecuting torture firmly in the capable and eager hands of Obama, Holder, and the postpartisan DOJ. We just can’t have some enterprising amateurs mess it up for the government here.

  5. phred says:

    I have to admit that Neal Katyal’s service in the administration has been a profound disappointment to me. I attended an ACLU dinner a few years ago where he and Charles Swift were given an award for their work on the Hamdan case. Now Katyal seems to have become yet another torture apologist, willing to give it all a wink and a nod. I wonder whether the ACLU regrets giving him that award… I certainly regret the standing ovation we gave him.

    • Mary says:

      In the Guantanamo Lawyers, there are a set of very excited, hopeful, recollections of lawyers who actively worked for the Obama campaign. Reading them now, with the hindsight of what he has done and the awareness of what more he is willing to do, they are really sad too.

      Kind of a sad day all around today – dead fish, dead soldiers and civlians, death of law, and democrats.

        • Nell says:

          On Obama fan sites, the evidence adduced is that she clerked for Abner Mikva and Thurgood Marshall. Oh, and she worked on Liz Holtzman’s congressional campaign.

          If I didn’t know of so many examples of people who had once done good things and then tossed all their principles overboard to get high-level jobs, the clerkships would make me think.

          The Holtzman campaign argument doesn’t sway me at all. By that logic, Rahm Emanuel and I are equally progressive/liberal: we both worked to elect Lane Evans. Of course, Rahm got him to fill out the AIPAC questionnaire in the Likud-approved manner for $2K of his first $4000, and I knocked on hundreds of doors, but who’s counting?

        • phred says:

          If I didn’t know of so many examples of people who had once done good things and then tossed all their principles overboard to get high-level jobs, the clerkships would make me think.

          That’s an excellent point. And given the appearance that she covets a seat on the SC so badly that she hasn’t formed a strong opinion or strenuously defended a principle in her career, it does give one pause.

          If you had told me when I stood there clapping for Katyal that he would join the pro-torture team, I would never have believed it. My naivete sometimes astonishes even me : )

        • bmaz says:

          Katyal has always been much more conservative and law and orderish than many people thought; quite frankly I am not shocked in the least by Katyal. Now Harold Koh and his drone kill rationalization and ratification; that is a little surprising.

        • phred says:

          It’s all a surprise to me, but then you are way more familiar with these people than I am.

  6. skdadl says:

    What is the logic of citing Obama’s “unequivocal” statements about torture? (However little we believe even those.) It wasn’t Obama’s DAG who signed off on Arar’s kidnapping and torture; it was Bush’s.

  7. DeadLast says:

    Whether Kagan would recuse herself in any of the 9th circuit cases would be an interesting question to ask in the confirmation process.

  8. harpie says:

    Dumb question: what evidence has been produced to show that Kagan is a “liberal” [comprable to Stevens]?

    • boltbrain says:

      Not too many 90 year old traditional conservatives left, I’m afraid. We’re left to hope that a wise Jewish woman with the richness of her experiences would just as often reach as good a conclusion as a white male who hasn’t lived that life.

  9. DWBartoo says:

    Thank you, EW.

    Can’t say that often enough.

    SCOTUS will “back” Bush and Obama.

    Thus the fatal “alignment”.

    When The President, the Congress, through its willing complicity, AND SCOTUS are in such a constellation of perverse agreement, when no one else, excepting certain other “judges”, may question or have “STANDING” powers, rights and obligations, to notice patterns and discern a fundamental threat to the rule of law itself, when that is the situation in which we all find ourselves, is it better to wait until the die is clearly cast, or might those “other” judges, realizing, as some must understand, that certain questions MUST be raised BEFORE that time?

    I am not a lawyer, as you all must certainly know, yet I think the fatal flaw is now quite clear, in all its awful possibility.

    If the law will not, if the law, through the weight of tradition and of deference, cannot examine itself, when direly necessary to the survival of its good boast, that it, and not men, decide, then such “law” as that is but a servile minion to the powerful which must and will be clear for all to see, regardless of what its practitioners might choose to believe.

    I think OUR moment, and the truth, that serious.


  10. Mary says:

    OT, but related. Jack Cloonan has a Huffpo piece up on DOJ’s move to bury Miranda, not to praise him.


    @19 – didn’t you get the memo? She’s Obama’s friend and she doesn’t own an “I’m with Palin” tshirt. Don’t be confused by her argument that lawyers who file briefs on behalf of politically unpopular clients should be put in jail for providing “material support” to a President’s enemies.

    • harpie says:

      OK, I’ll try to keep it all straight. ;-) And Balkin’s advocacy seems to be par for the course: “just trust me.” Maybe he’ll come up with something in Part 2…

  11. Mary says:

    Another Jack, this one Balkin, on how Kagan isn’t a “stealth nominee” at all vis a vis executive power and other issues.


    …the President who is nominating her, Barack Obama, is not the most liberal of presidents either. Moreover, he is continuing many of the policies of the Second George W. Bush Administration (2005-2009) on terrorism and related issues. As soon as you recognize this central fact about the Kagan appointment, the mystery is no mystery at all.

    • DWBartoo says:

      The law is being used, inch by inch (or perhaps we are more like the fabled frog in the pot, the water slowly warming …) to deny justice, liberty, and truth to the American people; the “law” protects the “confidential” materials of corporations such as BP, Haliburton, and Blackwater. It “slows” availability of critically important information such as was shared last evening by thatvisionthing @19 on EW’s “Eric Holder Visits HJC”, and I urge everyone to read the link entitled “Trentadue Mission”.

      The rule of law is well on its way to a “blow-out” of, I have no reason to doubt, catastrophic proportion. What is being postulated in this post is one more nail in the box the law is to be confined within – it might as well be a coffin.


    • earlofhuntingdon says:

      He’s trying for a soft landing with the ICC. Hope he gets it. I wonder whether it was American arm-twisting or the neo-cons and Opus Dei types who were worried he might dig up too many bodies in reviewing Franco-era crimes.

    • Nell says:

      You sound a bit as if you’re celebrating. While agreeing that we can’t and shouldn’t wait on international justice to end impunity for U.S. high crimes, I take no satisfaction whatsoever from what’s happening in Spain.

      What Garzon did in the Pinochet case changed the world wrt impunity for murderous dictators and torturers. His own country has never faced up to its history of same, and he’s pushed the envelope to try to make it happen. He’s paying the price. I can only hope this ends up fueling the movement for accountability for fascist crimes in Spain.

      • bmaz says:

        No, not at all; in fact it saddens me a bit. But I have always been amazed at the willingness of so many people to buy into what could be accomplished by the intrepid Spanish Judges. The Spanish government and its foreign ministry/state department equivalent have been clear from the outset they would not back up the legal process necessary for any effective jurisdiction against US officials and disfavored the actions. While I think the determination of the judges to press on was, and is, commendable; it was just never going to amount to much against US officials irrespective of how many dreamers glommed on to the idea and I have never understood the stock they put in it.

        • DWBartoo says:

          Looking at the governments of the world, as it is the governments, ostensibly, that determine just how much “rule of law” exists within any national legal system in the world, where do you see any hope of principled legal behavior?

          Internationally, as one might imagine, the collective whim, given the “conditions” of the time in question, which for us is “now”, determines “what” shall be tolerated from whom.

          As you imply, America rules the roost.

          So I ask you, that being as true as may be, does it not seem, to any thoughtful consideration, that the legal system in our own nation, aligned with power and destruction as it certainly is, must be the beginning “place” for the restoration of law and of reason?


        • DWBartoo says:

          Some judge, bmaz, short of the Supreme Court, must begin the process, despite how unfair you think that cross to bear, or ludicrous to imagine that any shall, willingly, pick up such a cross.

          No one else has the means.

          Unless some “standing” unknown to me, will allow someone to raise the question of the rule of law itself.

          Otherwise, the fatal flaw, brute power, rules.

          What do you see, as an attorney (a courageous and honorable attorney who has my greatest respect and admiration, as I hope you understand) well-versed in some of the worst of all of this, that may offer us any basis to think, imagine or hope, that our legal system may, somehow, examine itself and making use of the positive wealth of all those practitioners of the law who must understand what is approaching and has, already, made clear mock of justice, somehow, right itself.

          If you have no ideas, then I shall understand, as you know, I have but the one.


        • bmaz says:

          Well I actually think there have been many good and courageous stands taken by the courts when they have had the opportunity in the war on terror cases. But I think judges are ethically bound to follow the law and, whether you like it or not, I think Kaplan did that in the Ghailani case. But the ability of courts to act is, and should be, limited by the law and facts in each case.

        • DWBartoo says:

          If that blinds the judges to seeing the larger patterns, then the law and the facts will never catch up to the crime.

          Kaplan’s decision is precisely as you say,

          He deserves no blame for following the law and I have never assigned him, personally, ANY blame.

          It is the damned patterns which I can see, and blind justice, with i’s dotted and t’s crossed and the pretense, despite human evidence to the contrary, that in its universe of splendid isolations, nothing is amiss.

          I offer one further suggestion, which I have offered before. Perhaps the weight of wide public knowledge AND understanding of what is occurring might, despite not being a “fact” before the law, make the crucial difference, politically?

          If such education is to occur, then a significant part of legitimizing it must come from the direct and public participation of others, besides judges, in the legal profession.

          None of us have the right to urge others to peril, only ourselves.

          But should we not warn others of its approach?


      • skdadl says:

        I agree. Garzon seems to get some backs up because he is a bit of a performer, but really, if you’re going to push the envelope the way he has — and I think it matters that he has, even where he hasn’t succeeded — you can’t be the shy and retiring type. One of the reasons he’s vulnerable is that 1977 amnesty — the Spanish were looking forward, you know, lots of reconciliation but precious little truth, and apparently that’s the way some powerful people want things to continue.

        Mary @ 42, I was amazed to see Horton publish the names, but good for him.

        I was also puzzling over the numbers — 23 in Italy (21 of whom were CIA), 13 in El-Masri. Apart from the fact that they look incredibly clumsy, why on earth do they need so many people to carry out these missions (flubbing all the way)? They would be figures of fun if only they weren’t … I won’t finish that sentence.

  12. b2020 says:

    A snapshot of where we are: comment threads here

    In reference to this drivel:


    Another former C.I.A. lawyer, John Radsan, said prior judicial review of additions to the target list might be unconstitutional. “That sort of review goes to the core of presidential power,” he said.
    American officials say an arrest may not be possible. “If we need to stop dangerous terrorists who hide in remote parts of the world, inaccessible to U.S. troops, law enforcement, or any central government,” said the counterterrorism official, “what do you do — cover your ears and wait for a truly devastating explosion in Times Square?”

    Because we fight the dangerous terrorists over there so that they do not teleport their truly devastating bombs over here.

  13. Teddy Partridge says:

    Of course, recusal is entirely at the Justice’s discretion and cannot be challenged. Given Kagan’s closeness to Scalia, who wouldn’t recuse for duck-hunting trips with Dick Cheney, I fully expect she will follow his example and not recuse herself on any cases at all.

    It would be nice if this question was asked at the confirmation hearings: list the cases you expect to recuse yourself from. Robert Gibbs said about a dozen her first year and half that the second year. On the other hand, Justice Thurgood Marshall recused himself from 57 cases because of his earlier service as Solicitor General.

    Which says something, too.

  14. Mary says:

    @33, actually, after the Caperton v. Massey case, it might be able to be challenged (which would be pretty interesting) and I don’t think anyone is going to be able to fly not recusing in an case where they can show actual involvment in the case below. The thing is that there is probably a lot that won’t be “shared” on the involvement front.

    But re: Arar, something I try to do when the opportunity arises is to show who some of the victims of our policies were, so I’ll put up this link:


    If those children weren’t in Canada, they very well could be the “collateral damage” of an Obama authorized drone bombing of someone like Arar, who would be listed as an insurgent. Children just as beautiful, with smiles just as lovely, have already been killed by Obama’s policies.

    • skdadl says:

      Yes, they are a nice family. Arar’s wife, Monia Mazigh, is a heroine. She fought very hard to get Maher out of Syria — without her public daring and with a different PM in office, he would still be there, or dead.

    • bmaz says:

      Well, I agree she should recuse in a number of cases, and think she probably will; however I am not sure it is a certainty. It is clear that there is no accountability mechanism should a Supreme Court Justice not recuse; they are their own judges as Scalia established in the Cheney Energy Task Force case. Withdrawal from a case is required by 28 U. S. C. §455(b)(3), which mandates recusal where the judge “has served in governmental employment and in such capacity . . . expressed an opinion concerning the merits of the particular case in controversy.” Although I do not necessarily expect it, I can see how Kagan could theoretically argue her role at SG on certain cases was perfunctory and that she did not make or control the mere appeal decisions in the various Circuits.

    • phred says:

      That is a beautiful picture Mary, thanks so much for the link. It is sickening what our political leaders have turned out country into.

  15. Mary says:

    @40- I don’t quibble with any of that.

    Related topic – In addition to fighting for the right to keep Canadians the US has tortured from polluting our court system with claims, the Obama admin is also fighting against any accountability on the el-Masri front. Sure sure – they thought they already had that one licked when the SUp Ct, on a really black day, refused cert to the German torture victim, but el-Masri’s case seems to be an energizer bunny, with Germany and now Spain popping into the picture.

    Not that you will expect anything much, but at least now, years too late and after cert was denied, there is a bit of a writeup. It seems that Spanish prosecutors are alleging that the CIA used forged British passports and set down in Majorca on their way to rendering and they are asking for arrest warrants. NOthing is going to happen, but we do get a piece from Jeff Stein:

    Obama’s CIA is standing by their torture girl:

    The CIA is apparently standing by the counterterrorism official who supervised the “extraordinary rendition” and harsh treatment of an innocent man six years ago, even as Spanish prosecutors stir up new interest in the case with their request for the arrest of 13 of her underlings.

    The woman, whose identity is being withheld at the CIA’s request, has been promoted twice since the abduction of Khaled el-Masri

    As he notes (citing Mayer) she also shot a man in kabul just to see him die decided against Disney and the waterslide for her vacation a few years back and instead scheduled a pleasure trip to see someone waterboarded just for her. And after using torture for personal gratification and the el-Masri gig, she’s been promoted by Bushco and cosseted by Obamaco.

    As a matter of fact, one of Obama’s “intelligence officials” is quoted telling Stein that the crew who pulled off the el-Masri gig are examples of what is deemed “outstanding” by Obamaco.

    Our country has outstanding counter-terror experts–including this officer . . . The intelligence official indicated that the woman’s position was secure.

    “You’re talking about someone whose profound expertise has contributed powerfully to the disruption of terrorist plots and the capture of dangerous extremists in several parts of the world,” he said

    “NOt only that” – he preened, “she’s managed to get 13 CIA agents on both German and Spanish investigation lists – golly, even Castelli [who has also been promoted] didn’t manage to get two different countries prosecutors worked up over the Italian job, although I grant you that he got even more agents prosecuted and managed to rope in an active duty military guy from our airbase, but hey, I still think Obama’s Gal Friday has topped him”
    Ok, that last part, not really in the Stein story.

    Stein does mention that one veteran is saying that the reason no one is getting in trouble over the el-Masri case is that too many people were involved in it and, “‘They’re all saying, “If I go down, you go down.”‘”

    And nothing sounds more outstanding than that. Of course, what the veteran is skipping over is that hte reaosn no one is going down is Obama. In the end, the reason is Obama.

    Stein and Horton have a bit more about the arrest warrant requests (don’t anyone expect anything to come of them)

    Stein mentions that the Spanish papers are reporting the names, but he shies away from it:

    The Madrid-based El Pais listed the names of the alleged CIA employees, saying prosecutors suspected them of involvement in the abduction of El-Masri from Macedonia, where he was vacationing, to a secret CIA prison known as the “Salt Pit.”

    El Pais indicated that police obtained guest records from a luxury hotel in Majorca that showed CIA personnel stayed there under false names on the night before they flew to Skopje to pick up Masri.

    Prosecutors believe that the London-based human rights organization “Reprieve” has the real names of the CIA operatives, according to El Pais, and have asked the National Court to subpoena the authors of the list “for the purposes of ratifying the report about the identification of the true identity of the crew.”

    The CIA refuses to confirm or deny the accuracy of the names, as it did in a similar case in Milan.


    Horton goes ahead with the names (which I won’t duplicate here)

    El-Masri’s CIA abductors entered Spanish territory using forged British passports, according to the prosecutors. They are seeking J____ F____, J____ Fr_____, M_____ G______, L_____ E____ L_______ III, E_____ M________ F____, C_____ G______ B______, K_____ J____ B_____, W________ R____ G_____, P______(woman’s name)O’_______, J_____(woman’s name) P_______, J______ O’_____, J_____ R_____ D______ and H_____ L______, according to information provided by the Spanish Guardia Civil.

    • bmaz says:

      This what I was talking about above, and on several previous occasions; the Spanish government will not engage in the requisite formal diplomatic process necessary to obtain jurisdiction; although I suppose there is some nominally higher chance against mere agents than there would be against officials.

    • PJEvans says:

      too many people were involved in it and, “‘They’re all saying, “If I go down, you go down.”‘”

      You know, that sounds like a really good idea: take out the entire effing lot of them at one time, and if that means a good chunk of the current maladministration goes with it, well, they should have stuck with their first set of public promises and not gone chasing dollars from people of questionable connections.

      I have very little sympathy for those who engage in kidnapping and torture of innocent people, and much less for their bosses.

  16. ondelette says:

    In testimony in front of Congress in 2006, Katyal said his views tended to align with those who believe in a “unitary executive” during a time of crisis and those who believed in tough laws that help prosecutors. And he argued that the courts should defer to the president “overwhelmingly.” Katyal called his decision to file a suit against the administration in Hamdan “the hardest professional decision I have ever faced.”“Testimony of Professor Neal Katyal,” Senate Armed Services Committee, July 19, 2006(13)


  17. bobschacht says:

    My final thought for the night:

    The Rule of Law is a two-edged sword. In many times and places, it has been used by the Established Class (scribes and pharisees, and their modern equivalents) to keep the unwashed masses in line. That is why Ben Franklin’s legendary words about what kind of government we have are so important: “A Republic, if you can keep it.” Our Constitution is a finely balanced organism that requires all of its branches to do its job. But since the Manhattan Project, the precious balance of powers has been spiraling out of balance. Congress has become impotent, and the people have become unable to understand what has been done to them. The primary defenders of the Constitution today seem to be those obsessed with The Right to Bear Arms. Except for an occasional peep from a Feingold or a Whitehouse, the Left no longer does much to defend the Constitution, apart from Sternly Worded Letters, and an occasional pious rant by Leahy.

    I am almost tempted to think that Obama agrees with Cheney about the necessity of walking on the Dark Side, only he thinks he can do it better than Cheney.

    Unless Obama wakes up from his power fantasies and smells the Constitutional coffee, we may actually have to depend on Strange Bedfellows and an alignment with Libertarians and true Conservatives who really do care about the Constitution. Sooner or later, they will realize that Obama has captured all the Power Tools of the Bush Administration, and it does them no good to vapidly rubber stamp every executive power grab, especially with a Democrat in the White House.

    A fork in the road yawns before the Republicans: Which way to go?
    (1) Finish the Fascist project of the Neocons, and complete the destruction of American Constitutional Democracy, or
    (2) Rebel against the Constitutional abuses of the past 10 years, and launch a campaign against executive power (which actually represents a rational strategy, as long as a Democrat is in the White House.) This is the gist of the Tea Party people right now in their opposition to “big government,” although their reasons are completely different than mine.

    If they opt for (2), I might actually become a Republican in my old age.

    OK, enough. Time to totter off to bed.

    Bob in AZ

    • bmaz says:

      I am almost tempted to think that Obama agrees with Cheney about the necessity of walking on the Dark Side, only he thinks he can do it better than Cheney.

      The evidence is pretty much irrefutable on that at this point.

      • DWBartoo says:


        Irrefutable evidence, however, is not a “fact” and cannot become a “fact” until time has “proved” that, somehow, it may elicit the “interest” of the law.

        Presumably, that requires the “push” of “something” from outside the law?

        For example, the “peculiar institution” of slavery was once enshrined as “just and proper”, the law of our land, allowing the acquisition of great wealth and power for a few, despite the irrefutable evidence of certain negative side effects.

        That those most grievously affected by the “institution”, by way of or virtue of “definition”‘ were not permitted to point these side affects out, to those who determined what was “just” and what was not, changed not because some, others, comfortably unaffected, in their persons, but sore alarmed within their minds and considerations, eventually, came to question those definitions, but because a nation, torn apart by factions asserting the sanctity of THEIR most deeply held beliefs, tossed aside reason and joined in bloody battle.

        That we even have the notion of the “rule of law”, suggests that this struggle between what we would call reason and what we would call tyranny, is nothing new. That it has been a tension and a tribulation since civilization, itself, begun.

        It has been our conceit, as a nation and as a society, to “believe” that we were and are, somehow, “different” and, if we are honest, much “better” and “wiser” than other nations and other societies, which has led us to behave most disgracefully toward others, throughout our history, so, one might say, in deference to some kind of poetic justice, if no other kind, that it is fitting, and even “proper”, that it is now turned upon ourselves, the people. There is little solace, however, one imagines, to be found there.

        One imagines that Cicero well understood what we consider to be OUR dilemma, that many have well understood in the years between his time and ours.

        Perhaps, sometime, somewhere, there really will be a rule of law, sensitive to its vulnerability, its own fatal flaws?


    • fatster says:

      But why do they torture? Who, or what group, is determined that torturing will be done regardless of the evidence that it is the least effective, if effective at all, method of obtaining reliable, truthful information? What are they obtaining from torture that makes it so attractive? Are they getting “info” that provides the excuse they need to initiate violent action, such as drone attacks?

      That’s the big mystery to me. We know what individuals were gung-ho in BushCo and we know how this darkness penetrated the top levels. Although the more visible actors have changed, it continues.

      To quickly jump to a conclusion, rather than taking you through more of this restless, circuitous attempt to figure out why my government is torturing, I do think the WOT is going to last at least as long as the War on Drugs has lasted, and with the same results. Both are based on ignorance of the causes and cures. Meanwhile, some entities are acquiring unimaginable wealth providing the tools and services used in the WOT.

      • harpie says:

        Hi faster,
        Whenever I try to contemplate the question “why?”, I get stuck on the idea that maybe it’s a society wide type of “force drift”:

        Several studies demonstrate once detainees are dehumanized, physically and psychologically, abusing them is more inviting to their guards. This phenomenon is known in psychology as “force drift.”

        This is how Dr. Michael Gelles explained it to Navy Counsel Alberto Mora, who wrote it in his July 7, 2004 memo* to DoD General Counsel Jim Haynes:

        […] Once the initial barrier against the use of improper force had been breached, a phenomenon known as “force drift” would almost certainly begin to come into play. This term describes the observed tendency among interrogators who rely on force. If some force is good, these people come to believe, then the application of more force must be better. Thus, the level of force applied against an uncooperative witness tends to escalate such that, if left unchecked, force levels, to include torture, could be reached.” […]

        [It’s not very scientific, but try replacing “interrogators” in the above sentence with “societies”.]

        *This is “The Memo” Jane Mayer wrote about in “The New Yorker” of 2/27/06

        • fatster says:

          Thanks so much, harpie. Clearly, large parts of our society have succumbed to “force drift” in terms of accepting torture (regardless of the name they use for it), and they are being encouraged to do so not just by the propaganda on the tee vee and radio, but by those advocates of torture within our very own government. Torture must be a very powerful intoxicant.

          No good can come of this.

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