Links, 8/2/11

Justice and Injustice

Amanda Terkel describes how the state-level budget cuts are putting courts and justice out of the reach of Americans.

Dahlia Lithwick transcribes highlights of the remarkable panel she moderated over the weekend.

The Whistleblower–the trailer for which is above–opens on Friday. Nick Schwellenbach provides background on the story it tells–how DOD Contractor Dyncorp was involved in human trafficking–here.

The other day I noted that former Director of ISOO, Bill Leonard, wanted to file a complaint against those in NSA who improperly classified one of the documents charged in the Thomas Drake case. about which he said, “I’ve never seen a more deliberate and willful example of government officials improperly classifying a document.” Leonard received permission and has now submitted that complaint. In related news, Thomas Drake and Jesselyn Raddack have an op-ed on the Obama Administration’s war on whistleblowers.

Surveillance Nation

The Obama Administration says the guidelines it uses to decide what–in addition to a Muslim’s faith–gets them targeted for FBI infiltration is a state secret. That’s an excellent way to protect the First Amendment, don’t you think?

Not only did Bill Nelson join Republicans in blocking more reporting on FISA, but the entire Intelligence Committee took a voice vote to reject Mark Udall and Ron Wyden’s attempt to make James Clapper tell us they are using our phones to track us.

Josh Gerstein reported last week that TSA was going to roll out Israeli-style behavioral screening at airports. It looks like they’re rolling it out at Boston. The idea in principle might be great (it sure beats stripping granny of her adult diaper); but no one is going to pay TSA workers enough to do this competently, I’m betting. Meanwhile, scanner machines introduced for airport security in Australia are set off by sweaty armpits.

The US had to relax its guidance on al-Shabaab so that humanitarian groups could work with the terrorist organization to get relief to famine victims. They really ought to just rewrite the law to get rid of the stupid Holder v. Humanitarian Law interpretation.

Jeff Kaye has a story cataloging the range of uses of water in torture by DOD. Some of these pretty clearly fall into descriptions of water dousing (which DOD wasn’t authorized to use, either; the others are clearly attempts to simulate drowning, like waterboarding). But I think that shows that the ways the government was stretching whatever guidance it had.

38 replies
  1. Gitcheegumee says:

    The Thomas Drake issue had me thinking about an article from some years back about Jack Abramoff and his ties to IT companies who got enormous contracts from the NSA.I have always wondered if some of these deals were related to Drake’s complaint of excessive spending..may be or maybe not.

    I could not recall where or by whom the piece was written.

    Serendipity stepped in,and by sheer kismet,I found it in an ew thread from back in 2009 about Russeel Tice.To wit:

    Abramoff’s NSA and Domestic Spying Scandal by leveymgWed Jan 25, 2006 at 10:25:59 AM PDT

    The National Security Scandals of Jack Abramoff – Part II(Pt. 1,

    While Jack Abramoff’s scandalous rip-off of Indian tribes is well know, his role as a GOP fixer for NSA and CIA contractors has gone virtually under the radar screen. Abramoff’s lobbying activities raise serious questions about the role of his corporate and foreign clients in compromising highly sensitive NSA and Capitol Hill communications networks, in domestic spying and in other illegal national security-related activities.

    leveymg’s diary : Abramoff served as a conduit between the NSA and private companies that have become the focus of multiple criminal prosecutions and national security investigations, including the abuse of prisoners abroad, and alledged spying on Capitol Hill lawmakers by Abramoff clients. This has resulted in the gravest constitutional crisis since Watergate, as well as a massive damage to U.S. national security.
    The 2001 Contract to Privatize NSA’s Surveillance Systems In 2001 Verizon, along with CACI (a defense contractor shepherded by Abramoff that heavily contributed to the GOP), was awarded part of a multi-billion dollar NSA contract to privatize the NSA’s information technology systems, capabilities that were then used by the Bush Administration to carry out illegal domestic spying. As part of that ten-year program, code-named Project Groundbreaker, NSA surveillance systems continue to be developed, operated and maintained by private sector IT companies. See,…Washington PostAugust 1, 2001Pg.

  2. Peterr says:

    Re Amanda Terkel’s piece . . .

    Iowa State Supreme Court Justice Mark Cady gave a “State of the Judiciary” speech to the Iowa legislature in January, and “access to justice” and repeated budget cuts, layoffs, and overall downsizing of the judiciary was the subject of the first third of the speech.

    The first reason he offered the legislators for boosting funding is that while the budgets over the last decade have slashed the judiciary’s workforce back to 1987 levels, the workload of the courts has doubled, growing especially fast during the last three years.

    The recession has placed additional demands on our courts. In the past three years, mortgage foreclosure cases filed in Iowa have increased 17%, debt collection cases have increased 15%, child-in-need-of-assistance cases have increased 23%, and adult civil commitment cases have increased 19%. These legal actions may have a life-altering effect on the Iowans involved. This is not the time to give them ration cards for justice.

    In addition, our work has grown in the past few years as a direct result of cuts in services for treating abused and neglected children and troubled youths.

    Dealing with civil commitments — a particularly labor-intensive and time-sensitive process — is the second reason he offers for better funding to increase staffing.

    The third reason, though, is one that gets little attention. Indeed, I haven’t heard anyone but Cady ever raise it in a public and political setting:

    Iowa’s economic health provides a third reason for you to provide funds to reinforce court services. Studies in Florida and California suggest that a well-funded court system contributes to the economic well-being of communities. Widespread case delays and closed offices will add to the cost of doing business in this state and add to the uncertainties that inhibit business expansion. A vibrant business community requires a vibrant, fair court system.

    The whole speech was quite something.

  3. earlofhuntingdon says:

    A “security” alarm activated by sweaty armpits in Australia? Hahahahaha. Next to Vegas in summer, it’s the sunniest, hottest place to be this side of Death Valley or the Middle East.

    I wonder how much American taxpayers are paying for similar software and “analysis” programs and the video, spectrum and other analyzers needed to “perceive” the data to be analyzed by it? Whose budgets? Which outsourced contracts and “servicers”? And what collateral commercial uses are being subsidized by them?

  4. earlofhuntingdon says:


    It’s all about business, not social justice, jobs, public services or individual privacy rights needed for the survival of civil society.

  5. earlofhuntingdon says:

    Lithwick’s summary of the transcript of the panel she moderated is heavy with ironic statements from the participants. John Yoo, for example, describes the president as has having a “box” of powers. S/he determines how close to the edge of that box s/he wants to go. Yoo’s job was, and that of his successors at OLC is, to define how big that box s and what’s inside it.

    Mr. Yoo fails, however, to mention that his definition of that box, like his successors, is that it has whatever dimensions and contents the president demands. Mr. Yoo is a farce waiting to happen, a trait that Mr. Obama has enshrined in his DoJ successors.

  6. earlofhuntingdon says:

    Correction: The box analogy is offered by Gonzales’ description of Mr. Yoo’s job. Mr. Yoo, in turn, has this fantasy, which is what must help hiim shave himself and sleep at night, because his answer to the last question is no:

    “”I don’t think the biggest threat to American security is a claim that there is some kind of lawlessness or broad unconstitutionality going on here. … The ACLU has blurred the rules of war and made it seem like the rules of war are seeping into the domestic system, that a separate body of ways to act against an enemy are being transplanted into the American political, domestic system. … I don’t think that there has been any huge disorder or disruption or pulling back on civil liberties for Americans in the United States. … Ask yourselves, have civil liberties really declined in any significant way in the country? ”

    Mr. Yoo must imagine that there has been no decline in civil liberties in America since 9/11 only because he doesn’t believe there are any such rights that the executive cannot mold, uphold or withdraw at his whim.

  7. JohnLopresti says:

    D. Lithwick, Esq.’s, excerpts afford interesting vignettes; however, I think a full transcript would be more contextual. I suspect the column is taking a constrained view of what its content needs to be. Slate often tends to encourage its writers toward the editorial, and, in my recollection, prescinds from a Washington-Post sort of full reportage, as when WaPo obtains a previously suppressed document, or, evidently, in instances in which WaPo actually simply turns to Congressional Quarterly for content, as CQ often provides its own transcriptions.

    I had wondered how Dahlia Lithwick would fare in the chair as moderator at what certainly was going to be a rather dispute laden colloquy. DL clasically does very well when there is latitude for her exquisite appreciation of humor.

    The non-Slate image I recall of Mr. Yoo at the Aspen event appeared much more stark, than the photo Slate has appended to the Lithwick article. Slate would have the reader envision Yoo as cool, ice-watered, at a white cloth sheathed conference table, isolated, thoughtful.

    I also had initial concern about how Mr. Romero would fare at the give and take of the conversation; I had known his work only during a few years in which his comments appeared prominently at the aclU website; where, often, he would appear brazen; not quite rash; but willing to speak colorfully, as a barrister might find to be a natural tone of presentation; and illustratively incisive.

    I think what Lithwick has produced is a well shaped contour of her own concerns regarding a cluster of still-live governance questions.

    But I think her article’s title, ‘The discussion we should have had…’, only describes a sort of stolidity which still permeates the public dialogs on what occurred during the time Mr. Gonzales was elaborating the sandbox, and Mr. Yoo was a librarian, of sorts.

    Journalistically, I believe the caption [“You Say Torture, I Say Coercive Interrogation”] which precedes the article’s boldface title, likely is more of Dahlia’s own words than the article’s title proper [“The conversation about torture we should have had 10 years ago.”] The former, to my dramaturgic muse’s ears sounds much like a songtitle from the upbeat, zippy, early years of the Beatles, an epoch whose tunes I enjoy much still; expressive of the optimism of British youth of the time; though, in a sense, still Liverpudlian drear: “You say Goodbye, I say Hello”; or some such. It took rubberSoul to transition beyond the kind of juvenility of which the fab4 were complaining in that lyric. Though I would expect that even the Beatles rarely would go back to listen to that antediluvian verse writing for its content very much.

    I suppose Beatles and Lithwick, both, continue to offer promise in passing beyond these sorts of absolutes; or, at least, that is my acoustic impression of what Dahlia is attempting to do in the article; and, for which I commend her nearly invisible editorializing, and Slate’s discrete abstention from muddying her message, beyond the obvious gaps in content. The piece also noticeably is structured in a way that link glosses have very few likely places to rest. It simply is a little more full reporting, from a reporter who cares. If this works, there is the single-page version of Lithwick’s post; it’s only about 1000 words of excerpted fragmented interchange.

  8. earlofhuntingdon says:

    Further on the Lithwick summary, Mr. Yoo claims that the “criminal justice paradigm” is what failed on 9/11, not routine security measures and the errors, mistakes and negligence in routine policing and security work. His “analysis”, his political preference, really, has thankfully not been followed in Europe. Despite also cutting back on civil liberties, European democracies have not chosen to discard democracy in favor of imperial rule.

    Per Mr. Yoo, instead of fixing routine mistakes – meaning instead of accepting political accountability for what happened on CheneyBush’s watch – the Bush (and now the Obama) administration chose to replace the “criminal justice paradigm” with the security state paradigm.

    Yoo excuses our imperial transformation by characterizing government actions after 9/11 as simply filling the security gap left by the “failed” criminal justice paradigm. To achieve that, he has had to substitute his own constitutional paradigm that displaces the law with political security. That requires an emperor/president who determines what “the law” is as he pleases. He just wears Armani instead of a toga and breastplate. Plus ca change and all that.

  9. earlofhuntingdon says:

    Amanda Terkel’s report is a must read. State budget cuts are dramatically lowering court access to civil and criminal cases alike. Reports by others that that is bad for business seem misplaced or propagandistic. Delaying justice always works in favor of those who hold the power and money: the government that deprives you of your civil rights; the insurer who holds onto your settlement money longer; the employment, age, sex, employment discrimination cases that takes years instead of months to adjudicate. The environmental, anti-trust and predatory business practices suits that are never heard give businesses no incentive to settle, to internalize costs, to act in a less predatory or fairer way with customers, competitors, suppliers and the government.

    Justice delayed is not simply justice denied. It is that. It is also a way to entrench existing power holders, to further enrich them and immunize them. It is a cycle, but it is not virtuous. It fits the disaster capitalist game plan to a T.

  10. Jeff Kaye says:

    Thanks so much, Marcy, for linking to my story. I also have posted some of my own thoughts about what the TO story means at The Dissenter. I’ll let a quote from that speak here:

    Is it not waterboarding just because you are forcefully held down and drowned, and not strapped to a board?….

    In sum, the use of water torture and waterboarding or quasi-waterboarding can only represent a pattern of such kinds of torture, which has been kept out of the public eye through a combination of secrecy, and artfully framing the issue around a definition of waterboarding that is meant to exclude examination of the full use of such water-drowning torture.

    What this investigation into the different instances of water torture by DoD proves is that the public discussion of waterboarding has been consciously limited by the government, which has hidden behind a definition of waterboarding that excludes the other, closely-related forms of torture it used.

  11. rugger9 says:

    When war criminals are honored in America this way, as “very serious people” worthy of input and emulation, we lose the moral high ground, plus every one of the soldiers are now at risk for torture (for which we have prosecuted our enemies in the past) if captured. WE said it wasn’t torture even though it is.

  12. MadDog says:

    An additional link that might be worth adding to EW’s excellent collection today via Sebastian Abbot, Kathy Gannon and Kimberly Dozier of the AP:

    Timing of US drone strike questioned

    The American ambassador to Islamabad phoned Washington with an urgent plea: Stop an imminent CIA drone strike against militants on the Pakistani side of the Afghan border.

    He feared the timing of the attack would further damage ties with Islamabad, coming only a day after the government grudgingly freed a CIA contractor held for weeks for killing two Pakistanis.

    Ambassador Cameron Munter’s rare request – disclosed to The Associated Press by several U.S. officials – was forwarded to the head of the CIA, who dismissed it. Some U.S. officials said Leon Panetta’s decision was driven by a belief that the militants being targeted were too important to pass up, but others suspected that anger at Pakistan for imprisoning Raymond Davis for so long played a role…


    …The attacks have also strained the relationship between the U.S. State Department and the CIA, where officials argue that killing militants who threaten U.S. interests should take priority over political considerations, said U.S. officials.

    That tension was clearly visible between Ambassador Munter and the CIA station chief in Islamabad, who recently left his post because of illness, said a senior Western official in the region.

    “When the doors are closed they are shouting at each other, but once the doors are open they are congenial in front of the embassy staff,” said the official…”

  13. MadDog says:

    Another link that might e worth adding to EW’s excellent collection is from a piece by Nicholas Schmidle in the New Yorker:

    GETTING BIN LADEN – What happened that night in Abbottabad.

    It is an extensive article well worth the read, but I’ll just include this little tidbit:

    “…The Abbottabad raid was not DEVGRU’s maiden venture into Pakistan, either. The team had surreptitiously entered the country on ten to twelve previous occasions, according to a special-operations officer who is deeply familiar with the bin Laden raid. Most of those missions were forays into North and South Waziristan, where many military and intelligence analysts had thought that bin Laden and other Al Qaeda leaders were hiding. (Only one such operation–the September, 2008, raid of Angoor Ada, a village in South Waziristan–has been widely reported.)…”

  14. MadDog says:

    Though I disagree with some of TIME’s Massimo Calabresi’s analysis of Dahlia Lithwick ‘s Slate piece, I did find this tidbit interesting:

    “…A former CIA official with direct knowledge of the program told me that of the two people who were waterboarded who named al-Kuwaiti as the courier, one gave the information up not as a result of the waterboarding but as a result of sleep deprivation. At least in the case of finding bin Laden, the information that came exclusively from waterboarding continues to shrink…”

  15. Jeff Kaye says:

    Thanks, MadDog @15.

    I agree the Lithwick piece looks very interesting, but being a work today, I’m not going to be able to read it until late tonight. Thanks, EW for the link.

  16. emptywheel says:

    @MadDog: @MadDog Actually there’s something funky about that.

    Only one person who was waterboarded is thought to have known al-Kuwaiti, at least according to the story: KSM.

    Al-Nashiri and Abu Zubaydah are not reported to have.

    Then there’s Abu Furaj al-Libi, who is not supposed to have been waterboarded (I think, though am not positive, that he was waterdoused and threatened to be waterboarded).

    Unless someone like Ibn Sheikh al-Libi gave up the name under waterboarding.

  17. P J Evans says:

    The LA Times on Wyden’s anti-surveillance maneuver.
    The Times hasn’t been reading your posts on the wiretapping: they missed all the wonderful nuggets that would have woken people up.

  18. MadDog says:

    @emptywheel: I too found the 2 folks waterboarded to be “strange”.

    It didn’t jibe with public info on the number and the names of folks waterboarded.

    Perhaps it was Calabresi’s or his source’s error, or perhaps its Jeff’s “water-drowning”.

  19. radiofreewill says:

    I see pain getting distributed all around – and nobody’s happy.

    Normally, that’s a sign of damn good leadership in hard times.

    Imvho, we need to hold open the possibility that Obama is trying the best he can to do the ‘right’ thing here – and be prepared to throw-in with him when our interests intersect.

    He’s not the President we wanted, but he’ll be the last one of the carcass formerly called America, if everyone eschews skillful and principled relations with him to instead stand on the extremes of their own partisan points of view.

    He needs us, and we need him – but only in wholesome, balanced ‘right’ ways.

    For now, we may only have enough common ground and trust to get a rope-bridge up between us, but even that’s strong enough to transport Hope, and worthy of open invites to parley.

    There’s a ‘right’ way out of this clusterfuck for everyone through shared sacrifice, if we can all just agree to be principled more than partisan in our deliberations and decision-making.

    And then maybe just maybe that rope-bridge will turn into a highway that gets everyone moving Our America forward again.

    It could happen…but only if we’re courageous enough to offer the possibility, even while we’re hurting.

  20. MadDog says:

    @MadDog: Just wanted to give myself an atta-boy high-five for having correctly debunked at EW’s old place the ABC News story that had a single Blackhawk helicopter taking all folks away from OBL’s compound (30 plus a bow-wow – 23 Seals, 6 Air Force crew, 1 dog, and OBL’s body).

    As Nicholas Schmidle in the New Yorker reports:

    “…Outside, the Americans corralled the women and children—each of them bound in flex cuffs—and had them sit against an exterior wall that faced the second, undamaged Black Hawk. The lone fluent Arabic speaker on the assault team questioned them. Nearly all the children were under the age of ten. They seemed to have no idea about the tenant upstairs, other than that he was “an old guy.” None of the women confirmed that the man was bin Laden, though one of them kept referring to him as “the sheikh.” When the rescue Chinook eventually arrived, a medic stepped out and knelt over the corpse. He injected a needle into bin Laden’s body and extracted two bone-marrow samples. More DNA was taken with swabs. One of the bone-marrow samples went into the Black Hawk. The other went into the Chinook, along with bin Laden’s body.

    Next, the SEALs needed to destroy the damaged Black Hawk. The pilot, armed with a hammer that he kept for such situations, smashed the instrument panel, the radio, and the other classified fixtures inside the cockpit. Then the demolition unit took over. They placed explosives near the avionics system, the communications gear, the engine, and the rotor head. “You’re not going to hide the fact that it’s a helicopter,” the special-operations officer said. “But you want to make it unusable.” The SEALs placed extra C-4 charges under the carriage, rolled thermite grenades inside the copter’s body, and then backed up. Helo one burst into flames while the demolition team boarded the Chinook. The women and children, who were being left behind for the Pakistani authorities, looked puzzled, scared, and shocked as they watched the SEALs board the helicopters. Amal, bin Laden’s wife, continued her harangue. Then, as a giant fire burned inside the compound walls, the Americans flew away…”

    As I said in my original EW comment, there was no way that you could fit all those folks (30 people and a dog) into a single remaining Blackhawk helicopter.

    So there ABC News! You’ve been shot down by none other than MadDog and Nicholas Schmidle. And MadDog did it first! *g*

  21. Jeff Kaye says:

    @emptywheel: IMO, they’ve lied so much, and destroyed so much evidence, that you can’t believe what you hear, or even read in any particular document. Makes it harder for us, of course.

  22. Mary says:

    @earlofhuntingdon: I know, I know, I know, pick me on the “what’s inside of it”

    A: A buried alive al-Libi, giving the President the false torture statements he wants for his war in Iraq!


  23. Mary says:

    Thanks for including the al-Shabaabbit and also for the reference to the Holder/Kagan Doctrine on flogging and starving the poor and the crippled rather than letting any aid go through the hands of “terruhists”

    I’m sure while he’s spooning the soup in to the bowls the glow of inner satisfaction from his Doctrine helps holder forget all about the dead children in Somalia.

  24. pdaly says:

    Congrats, MadDog

    “a medic stepped out and knelt over the corpse. He injected a needle into bin Laden’s body and extracted two bone-marrow samples.”

    FYI: This phrase “injected a needle” gives the wrong impression of a simple, quick test like drawing blood from a needle inserted into a vein.

    Unless the army has special tools to extract bone marrow quickly, obtaining a bone marrow sample (from the iliac crest) usually is more akin to turning a cork screw against high resistance in order to get past the bone and into the marrow cavity.

  25. pdaly says:

    Sorry, MadDog, I know you didn’t write that part. I didn’t format my reply correctly.

    Glad to see the reply buttons and other new additions to comments.

  26. pdaly says:

    ew wrote: “Leonard received permission and has now submitted that complaint.”

    This is great news. Can Thomas Drake use this development to reclaim his government pension maybe?

  27. harpie says:

    Late, but…

    In 2006, The Constitution Project wrote this Report:
    The Cost of Justice: Budgetary Threats to America’s Courts [pdf].

    Here’s a link to the press release.

    CONSTITUTION PROJECT SAYS BUDGET CUTS THREATEN AMERICA’S COURTS. Report Names 14 States in Which Budget Cuts Threaten Effectiveness of Judicial System.

    States cited in the report as the starkest examples of systems suffering from budgetary threats are California, Colorado, Connecticut, Delaware, Florida, Georgia, Iowa, Minnesota, New York, North Carolina, Oregon, South Carolina, Utah and Washington.

  28. pdaly says:

    in reply to [email protected]

    I thought about it this morning: there is an interosseous route to infusing fluids (instead of intravenous route) when quick access is needed in an emergency. One gains access quickly with a drill–usually in the leg bone just below the knee cap. Youtube has videos showing how to place an IO access.

    And here’s an interosseous drill made for the military

    I suppose the bore can be/has been designed large enough to allow bone marrow sampling, too.

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