Richard Ben-Veniste Calls out Obama for Spiking the Privacy Board

I just watched a scintillating panel at the Aspen Security Forum. It featured former LAPD Chief Bill Bratton, Alberto Gonzales, ACLU’s Anthony Romero, John Yoo, and David Cole, moderated by Dahlia Lithwick.

The panel itself was notable for the staging of it. The panelists were seated right next to each other, with no table in front. Gonzales sat right next to Romero; Yoo sat right next to Cole. So when Romero corrected Lithwick’s assertion that the Bush Administration had showed respect for using civilian trials with terrorists by recalling that Gonzales had argued for holding American citizen Jose Padilla without trial, Gonzales shifted notably, uncomfortably, by my read. And when Cole rehearsed the language people like Michael Mukasey and Jack Goldsmith used to describe Yoo’s memo all the while pointing with his thumb at Yoo sitting next to him–“solvenly,” he emphasized–Yoo also shifted, though aggressively towards Cole. Before it all ended, Romero started reading from Yoo’s torture memo; Yoo accused him of using Dickensian dramatic delivery.

The physical tension of these men, attempting to contain the contempt they had for each other while sitting in such close proximity, was remarkable.

There were a number of other highlights: John Yoo made the ridiculous claim that no one in the human rights community had come out against drone strikes (Romero came back later and reminded him the ACLU had sued on precisely that issue, representing Anwar al-Awlaki’s family). Gonzales insisted there should be accountability (no matter that he escaped it, both when he politicized DOJ and when he took TS/SCI documents home in his briefcase). Romero hailed Obama’s “willingness to shut down secret sites,” apparently missing Jeremy Scahill’s recent scoop about the CIA-paid prison in Somalia. Yoo, as is typical, lied to protect his actions, not only repeating that canard that torture helped to find Osama bin Laden (rather than delayed the hunt as is the case), but also to claim that warrantless wiertaps helped find the couriers; they did, but those were warrantless wiretaps in the Middle East, not the US!

Just as interesting, though, were the questions. Yoo was somewhat stumped when an IAVA member and former officer asked what an officer who had taken an oath to support and defend the Constitution should do if he received what he believed was an unconstitutional order.

Finally, most interesting came when Richard Ben-Veniste–the former Watergate prosecutor and 9/11 Commissioner–asked questions. He said, first of all, that Mohammed al-Qahtani had been providing information before he was tortured (a claim I’m not sure I’ve heard before, made all the more interesting given that we know the Commission received interrogation reports on a running basis). But then his torture turned him into a “vegetable,” which meant the US was unable to prosecute him.

And then Ben-Veniste raised something that the panel, for all its discussion about accountability, didn’t mention. The 9/11 Commission recommended a privacy board to ensure that there was some balance between civil liberties and security. Bush made a half-assed effort to fulfill that requirement; after 2006, at least, there was a functioning Privacy and Civil Liberties Oversight Board. But Obama has all but spiked it, killing it by not appointing the Board.

Particularly given Ron Wyden’s and Mark Udall’s concerns about secret law, it’s time the civil liberties community returned its focus on Obama’s refusal to fulfill the law and support this board. That board is precisely the entity that should be balancing whether or not the government is making appropriate decisions about surveillance.

Update: David Cole corrected for John.

16 replies
  1. Moe says:

    I wasn’t able to make it to Aspen this year, so please tell me you’ll keep an eye out for any video of that panel and post it; they haven’t been put under the jail yet, but I at least want to see Gonzales and Yoo squirm.

  2. Nell says:

    That board is precisely the entity that should be balancing whether or not the government is making appropriate decisions about surveillance.

    In the unlikely event that Obama, two and a half years in, deigns to activate the board, I’m sure his appointments will be just as “balanced” as his economic advisers. They’ll all be foxes in the spook/repression henhouse.

  3. person1597 says:

    Dickensian dramatic delivery??!! Riiiiight.

    What he did say presented pictures to me, and not mere words. In the excited and exalted state of my brain, I could not think of a place without seeing it, or persons without seeing them. It is impossible to overstate the vividness of these images…

    And what images, what people could we not help but imagine when confronted with the reality of Cheney–Addington–Dinh-Yoo unitary executive power trip?

    How about Roger Ailes and the Fox News of the World bevvy of brain-dead beauties?


    How about Miss Monica the Goodling one?
    But Monica Goodling sure seems like the kind of gal who would ensure that DOJ never busted the GOP’s own private domestic spying program.

    Gosh, put the two together — Eavesdropping media moguls Murdoch/Ailes/Dinh and Eavesdropping Administration Henchpeople4Bush (Cheney-Addington-Yoo–Dinh) and what do you get?

    Extra-judicial antitrust actions against competing media outlets, like, say, the National Enquirer?

    Just one of the many coincidences — er– common Dinh-ominators.

  4. Abusto says:

    How sad and sickening that Bush III is to the right of Bush the Junior on implementing the Security State, and even worse, there’s no one to challenge him, either in Congress or for reelection.

  5. EoH says:

    To say that Mr. Obama has been captured by the surveillance state assumes that he ever opposed it. It also doesn’t quite capture his convert’s fervor in advocating its needs and in undermining the resources of those who oppose it, most evidently whistleblowers.

  6. pdaly says:

    ACLU’s Anthony Romero’s opening remarks were powerful–it seemed the whole conference grew silent in astonishment at his clear language.

    Yoo sounded as if he wrote his OLC opinions as reliance memos, saying something like it would be unfair to send our men and women there and leave them on their own to figure out what to do.

    But wasn’t Mary, a while back, informing us that a professional OLC “reliance memo” requires a list of facts (not hypotheticals) to be submitted to the OLC; that if an OLC lawyer writes a reliance memo based on facts known to be false to the OLC lawyer this act would be grounds for a professional misconduct finding by the OPR; that there were no lists of facts submitted with the torture memos.

    I cannot recall by what reason DoJ’s Office of Professional Responsability David Margolis was able to downgrade the OPR report’s conclusion that Yoo and Bybee ‘violated’ their professional OLC responsibility to the more accepting and lenient (i.e., wrist slap) finding of “poor judgment” Did Margolis claim it was not a reliance memo?

    • bmaz says:

      Any good reliance memo requires the factual predicate be laid out and the advice tailored to it. The other thing is, within the factual parameters they are provided with, an attorney is generally professionally responsible for his or her advice given thereon.

  7. Valley Girl says:


    off topic minor point, but, I regret that you abandoned your previous moniker. I mean, you don’t have to type it again, b/c the “leave a reply” function seems to automagically type in your name (so much for the excuse of not having to type in so many characters)

    All meant in good heart. xxoo

  8. GregLBean says:

    Wow, Cole and Romero nailed it. Too bad they weren’t in advisory positions rather than Yoo and Gonzales. Bratton I suspect would have slapped cuffs of Yoo and Gonzales without much hesitation, as he should have.

    Without consequences bad things get done in the name of righteous indignation. Obama should have looked back, won’t it be great if the next President looks back at Obama. That’d serve him right! He can pardon Bush II but will someone pardon him?

  9. Gitcheegumee says:

    Has anyone posted this yet?

    Source: Washington Post

    U.S. plans to provide Iraq with wiretapping system
    By Walter Pincus, Published: July 30

    The United States is planning to provide the Iraqi government with a wiretapping system to eavesdrop on cellular calls and messages “to assist in combating criminal organizations and insurgencies,” according to a U.S. Air Force contract solicitation.

    The proposed system would allow Iraqi officials to monitor and store voice calls, data transmissions and text messages and would be installed with the acquiescence of the three current cellular communications providers in Iraq, according to documents accompanying the solicitation.

    The system, which would be able to target at least 5,000 devices, would be designed for expansion to cover land-line telephone systems and international mobile telecommunications.

    Maj. Gen. Jeffrey S. Buchanan, spokesman for U.S. forces in Iraq, said the equipment would be similar to the technology used by federal and state law enforcement agencies in the United States. “Iraq’s stringent surveillance laws require law enforcement to obtain a warrant before accessing and monitoring private conversations,” he said in a statement last week.

    Read more:

    NOTE: Please pay close attention to the last sentence of that excerpt.Ironic much??

  10. Mary says:

    @pdaly: kinda sorta. I wasn’t focusing on OLC memos as such, because I don’t know that much about OLC’s internal regulations.

    But for legal opinions in general, they need to be based on specific and well defined facts. Those can be presented in the form of a hypothetical, but the advice is then limited to any real circumstance that fits exactly the hypothetical presented. Emphasis on exactly.

    There is another requirement for reliance memos. They can only be relied upon by the person to whom they are given. All the OLC memos went to General Counsel and Department heads or their seconds – none were give to and for the benefit of, for example, CIA field agents in general. Also a big problem for reliance memos.

    There’s also the issue of whether or not the memos themselves, classifed up the wazoo as they were, got cabled or otherwise provided to the torturers – because they would need to be delivered to as well as addressed to the party seeking reliance if they were reliance opinions. I could go on a bit on that, but see the practical issues. I so wish someone would get into those things with a Yoo or a Mukasey or Gonzales when they mention things like that.

    This is something that was not positied in the professional ethics review or worked within its scope, and yet it should have been central. If your opinion was intended so that the “guys and gals” doing the White House’s torture for the White House had some direction and guidance – – – uh, Mr. Yoo, Mr. Ashcroft, etc. how is it that you provided that guidance to them, when you were only issuing opinions to General Counsels? Did you follow up to see how the General Counsels made the information avaialable? Did you expand the scope of your opinions to include field torturers? If your assigment was to give guidance to field torturers, how did you do that? What was your responsiblity and duty and to whom did that responsiblity and duty flow? Was your duty to give a CYA card to a Gen Counsel – or to give a reliance memorandum for a field torturer? How did you fulfill that duty, etc. etc. etc.

    They never get nailed on any of that and never will now.

    Also, when you give a reliance opinion and discover that your facts have failed, you have a duty to revise that opinion. That was not reviewed in the ethics inquiry either – but that duty to correct is there, nonetheless. Especially when you know your opinion is being pulled up and relied upon in connection with numerous judicial proceedings.

    So when you learn, for example, that Zubaydah doesn’t plan operations for Al Qaeda at all, much less as a high value operational target,then what, Mr. Yoo, did you do to correct your prior opinions and advice? When you learned that people were being snatched and subjected to your “not torture IF they are a high value target” advice, what did you do to clarify your advice? When you learned they were being frozen to death at the Salt Pit, what did you do to clarify your advice?

    So much worth asking, so little that is ever asked. And how freaking appalling that so many of these guys end up as professors of some sort. It’s so much like the Catholic Church sending its pedophiles hither and thither to wreak their havoc without every having any consequences, it makes you ill.

  11. pdaly says:


    Thanks, Mary. Great group of questions to keep in mind when Yoo et al start spouting off again.

    I wish you could have been on that panel (or had been available to coach Jon Stewart when he had Yoo on the Daily Show and failed to ask any questions that could fluster Yoo).

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