Bradbury’s Bellybutton
I want to highlight two paragraphs of Bradbury’s May 30 torture memo to show how self-referential his argument is. The paragraphs (on pages 6 and 7) use Abu Zubaydah and Khalid Sheikh Mohammed as examples of the type of people that have been–or might be–waterboarded, so Bradbury is trying to fluff up their importance and danger. My comments are interspersed with his idiocy.
We understand that Abu Zubaydah and KSM are representative of the types of detainees on whom the waterboard has been, or might be, used. Prior to his capture, Zubaydah was "one of Usama Bin Laden’s key lieutenants." CIA, Zayn al-Abidin Muhammad Husayn ABU ZUBAYDAH at 1 (Jan. 7, 2002) ("Zubaydah Biography")
Remember, Bradbury is writing this in 2005, even after the 9/11 Commission report came out referring to AZ with such descriptions as "a longtime ally of Bin Ladin," "worked closely with the al Qaeda leadership," "had an agreement with Bin Ladin," "associate," and twice, "lieutenant," but not "key lieutenant" and not "member of." But to make the case that waterboarding will only be used with the worst of the worst, Bradbury reverts back to a pre-capture biography of Zubadayah that was proven wrong by facts collected during Zubaydah’s capture to make the claim Zubaydah was a key al Qaeda figure.
Indeed, Zubaydah was al Qaeda’s third or fourth highest ranking member and had been involved "in every major terrorist operation carried out by al Qaeda." Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Interrogation of al Qaeda Operative at 7 (Aug. 1, 2002) ("Interrogation Memorandum:); Zubaydah Biography (noting Zubaydah’s involvement in the September 11 attacks).
So once again, Bradbury cites a 2002 document that was proven to be erroneous by AZ’s own interrogation testimony. But to make things worse, Bradbury cites a passage of the Bybee Two memo. That passage was almost certainly known to be false when Rizzo made it to Yoo in 2002. But Bradbury, as if wallowing gleefully in the fraudulent representations of that prior memo, cites it again, in 2005, when it was definitely known to be false.
Upon his capture on March 27, 2002, Zubaydah became the most senior member of al-Qaeda in United States custody.
Seeing how Sheikh al-Libi ran the Khaldan camp for which AZ served as tour guide, even this is an arguably false claim. But I can see why Bradbury would want to cite the CIA IG Report–the very document he was trying to refute–particularly if he were trying to hide what happened to al-Libi and why they (meaning the US, as opposed to the Egyptians) never got around to waterboarding him.
Now onto his case for KSM, some of which is not so egregious (though make sure you read to the end).
KSM, "a mastermind" of the September 11, 2001 attacks, was regarded as one of al-Qa’ida’s most dangerous and resourceful operatives. [November 1, 2002 CIA biography name slightly obscured, folloed by two redacted lines] Prior to capture, the CIA considerd KSM to be one of al Qaeda’s "most important operational leaders … based on his close relationship with Usama Bin Laden and his reputation among the al-Qa’ida rank and file." Id. After the September 11 attacks, KSM assumed "the role of operations chief for al-Qa’ida around the world." CIA Directorate of Intelligence, Khalid Sheikh Mohammed: Preeminent Source on Al-Qa’ida 7 ("Preeminent Source")
Bradbury got on a roll there, with at least four facts in a row without a grievous error. But then there’s this:
KSM also planned additional attacks within the United States both before and after September 11. See id. at 7-8; see also The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States 150 (official gov’t ed. 2004) ("9/11 Commission Report")
As a reminder, the "Preeminent Source" document is almost certainly the propaganda document Cheney wants to use to prove torture works–so I consider it preeminently untrustworthy.
And the 9/11 Report?!?!?! Well, first of all, I guess Bradbury can’t claim to be ignorant of the way that 9/11 Report refers to Abu Zubaydah in much less grandiose terms than the pre-capture reports he relies on here did.
But here’s what Bradbury wants to use from the 9/11 Report to boost up KSM’s importance:
At this point, late 1998 to early 1999, planning for the 9/11 operation began in earnest.Yet while the 9/11 project occupied the bulk of KSM’s attention, he continued to consider other possibilities for terrorist attacks. For example, he sent al Qaeda operative Issa al Britani to Kuala Lumpur, Malaysia, to learn about the jihad in Southeast Asia from Hambali.Thereafter, KSM claims, at Bin Ladin’s direction in early 2001, he sent Britani to the United States to case potential economic and “Jewish” targets in NewYork City. Furthermore, during the summer of 2001, KSM approached Bin Ladin with the idea of recruiting a Saudi Arabian air force pilot to commandeer a Saudi fighter jet and attack the Israeli city of Eilat. Bin Ladin reportedly liked this proposal, but he instructed KSM to concentrate on the 9/11 operation first. Similarly, KSM’s proposals to Atef around this same time for attacks in Thailand, Singapore, Indonesia, and the Maldives were never executed, although Hambali’s Jemaah Islamiah operatives did some casing of possible targets.
And the sources for those claims?
On a possible Southeast Asian operation, see Intelligence report, interrogation of Hambali, Sept. 4, 2003. On a possible U.S. operation, see Intelligence reports, interrogations of KSM, June 27, 2003; July 14, 2003. On a possible Israeli operation, see Intelligence report, interrogation of KSM, June 30, 2003. On other possible targets discussed with Atef, see Intelligence report, interrogation of Hambali, Sept. 4, 2003 (Thailand); Intelligence report, interrogation of KSM,Apr. 4, 2004 (Singapore, Indonesia, Maldives).
One interrogation of Hambali, less than a month after he was first captured, with all that might suggest. Along with KSM’s own interrogations, only one of which (the one that was "not executed") came from an interrogation after KSM’s first several months of captivity. KSM. The guy who got waterboarded and otherwise tortured and has since recanted much of what he said under torture.
So you see how Bradbury’s bellybutton works. We waterboard people so they can tell us grand tales about terrorist plots that we then use to argue that we should torture people because that torture will show how important these people are.
Bush’s entire counter-terrorism strategy, summed up in one short rhetorical flourish.
Sounds like Bradbury found all the lint he needed there.
A round of Jeopardy! (TM):
Logical terms for $800:
Q. What is a Constitution-wrecking circle-jerk?
OT – If one or more of our trusty legal eagles are around, could one of you translate the meaning of these critters in the Al Haramain v. Bush case:
April 23, 2009
Mandate
April 24, 2009
Clerk’s letter
This next one I kinda understand all on my lonesome:
April 30, 2009
Stipulation to extend response date
Which makes me wonder if the Al Haramain v. Bush case is the one where AG Holder is thinking of reversing the government’s State Secrets Privilege invocation. Perhaps even settle out of court.
My “logic” is that settling with a single party is a whole lot more cost-effective than settling with the millions of injured parties in the other warrantless wiretapping cases (i.e. Hepting v. AT&T, Jewel v. NSA, NSA Multi-District Litigation etc.).
And other EFF goodies:
In the Jewel v. NSA case, May 1, 2009 – Stipulation to revise hearing date and April 27, 2009 – Order denying request of individual defendants
In the NSA Multi-District Litigation case, April 25, 2009 – McMurray order
Other than that, it seems nothing is going on. *g*
~~~ModNote: ALL LINKS IN THIS COMMENT ARE DIRECT-TO PDF.~~~
Oh, and these EFF goodies too:
NSA Spying – State Administrator Cases, April 23, 2009 – AT&T reply and Clayton surreply
And April 22, 2009 – State officials surreply and Exhibit A
Sorry about that! I keep forgetting that not everyone enjoys opening links to PDFs.
And so are those in my comment at # 5.
Will do better next time!
MadDog – these are simply little procedural details that have no substantive bearing on any of the matters we have been tracking and that you note. A mandate is the final step of the appellate decision made by the 9th, the letter is simply formal notification to the parties of record. The stipulation you inquire about is actually expected; there are combined hearings set on May 7 that may impact on how the parties wish to craft their stipulation on contested areas demanded by Walker in his last ruling. One day after that was pushing the envelope by Walker, I am not surprised in the least that both parties would see the efficacy of an additional week to sort through their positions and create a unified information to the court of where they stand.
Any thoughts about Al Haramain v. Bush being the case AG Holder reverses the government’s State Secrets Privilege invocation and settles?
Or am I off the wall tonight? *g*
Pretty doubtful.
I’m with bmaz, I doubt it.
First, I think Walker is looking ahead to the other two cases (both immunity and the EFF suit), and thinking the (completely) innocents really ought to have some recourse here as well. So I don’t think they can settle al-Haramain and be done.
Also, in this case, the 9th has already ruled that this is state secrets. So it makes the govt look disingenuous if it says “oops! sorry to trouble you, we were wrong!!” I know that’s a “different” government, but not in the case of the law (and it’s all still Coppolino).
And remember, DOJ has at least SOME reason to believe al-Haramain DOES have ties to terrorists. So if you’re going to let secrets get out, you probably don’t want it to be this one.
Yep, they got a problem there. Even if they pull the Bush like hide the ball under their jersey and run trick that MD is inquiring about, that leaves Walker’s decision sitting there, presumptively supported by the 9th, and filed as an opinion on the Consolidated Cases docket. All Walker has to do is take judicial notice of prima facie established illegality in another of the consolidated cases in making a ruling in the others. Is it quite that simple? No, of course not; but there is a path to get there and he will most certainly take it. I am convinced you could bet the farm on that, he isn’t going to be stopped by such disingenuous tomfoolery. Possible an appellate court could reverse him later, but Walker has spent too much time boxing these fuckers in a corner; he isn’t going to let them out that easy.
You and bmaz are dashing my dreams! *g*
Ok, Dog, here’s the short version of how it works.
When an appeals court decides a case, first they issue the opinion. That’s a combination of what their decision is and the reasoning behind it. We study those with a lot of interest, because it tells us a lot of things.
A few days to a week are allowed to pass. This enables the parties and their attorneys (and the publishers of legal books where opinions are collected) to review the opinion and digest it. It also allows them to come back to the Court with a letter that says “Dear Judges, you’ve got a typo on page 7 line 12 and you misquoted the plaintiff at page 17 where the opinion says ‘blah, blah, blah’ but the transcript you said you were quoting says ‘blah, blah, blech’.” The Court is usually good-natured, even thankful, about these sorts of point-outs and will often issue an amended opinion making the corrections. FWIW, I do recall even something like this (typos) happening within the last couple years with a Supreme Court case.
In the rare case, if the parties can get together, it is even possible to settle the case and tell the Court – “never mind, we settled. Can you withdraw the opinion (as moot)?” Such a settlement would, if the opinion were withdrawn, make the precedent it set vanish with a poof but not even a wisp of smoke into thin air. In a precedent-based legal system like ours, making the precedent go away like it never happened can be useful to litigants or interest groups which have a horizon further than this particular case. Such instances are rare because the parties who stick it out to the point of getting an appellate decision have already made a substantial investment of time, money and effort and have substantial differences often not bridgeable by a settlement. And, it’s wholly discretionary with the Court, which is often none too happy of having done all the work it did to get to the point of decision only to be told “never mind”. That said, the Court is also aware there are strong jurisprudential reasons for granting it, if only because there is no longer a live “case or controversy” and the case is therefore moot by definition.
If the case and the opinion as originally issued has survived these hurdles, then the appellate Court will issue its mandate. A “mandate” is the name given to the court order in which the Court says what is to be done. It will decide to implement the opinion and reverse, remand, affirm or whatever the opinion decided, where it will send the case, and then award costs or not.
The mandate is important for two reasons. First, the opinion and judgment is not final until the mandate is entered. This means the opinion can be altered until the mandate is filed (and, FWIW, the appellate court can “recall” its mandate – call the case back – in rare instances, usually to correct something). Thus, since one appeals from orders and judgments and not opinions, further appellate proceedings cannot go forward until the mandate is filed.
Second, this means that the clock for filing the next appeal – or whatever procedure might follow – does not start running until the mandate is filed. So, for instance, in the event the party wants to file for a petition for certiorari with the Supreme Court, the time for filing such a petition – 60 days (as modified by proceedings in the trial court) – would not start running (again) until the date the mandate was filed. The calculation of time for filing appellate papers is notoriously complex and, to make matters worse, timely filing is considered “jurisdictional”. In other words, if you file the appellate papers late, the court where you are filing them will notice it, and send it back saying “we cannot consider your appeal as we have no jurisdiction”. Not even a “sorry”.
When further appeals (or a motion for reconsideration or rehearing en banc in the appellate court) are being considered by the party on the short end of the opinion, the time gap between the opinion being issued and the mandate being filed gives that party and its lawyers time to figure out what they want to do, get money together, research the law, start writing, etc. This is important because of the way time is calculated – particularly in the Supreme Court.
I mentioned “60 days (as modified by proceedings in the trial court)” regarding the time for filing a petition for certiorari in the Supreme Court. Calculating time for appeals is fraught with problems and complications, so every day you can get between the opinion and the mandate is vital.
The one time I filed anything in the US Supreme Court, it was opposition to a pro se plaintiff seeking certiorari. The case had been proceeding in a state trial court and had gone through two levels (state intermediate court of appeals and state supreme court) of appeals. Because of the nature of the trial court orders being appealed from and the appeals in the state courts, the appeal was considered “interlocutory” both in the state and US Supreme Court rules. That meant, under the rules then applicable in the US Supreme Court, the time allowed for petitioning for certiorari was calculated from the date the orders had been entered in the trial court, because the certiorari would have been to the trial court since interlocutory appellate review in that state’s system was discretionary and had not been granted, so there were no appellate court mandates to appeal from, excluding any time subject to stays issued by any of the lower courts. This pro se litigant had not even known to ask for stays (probably didn’t even know they existed) and so had not gotten them. When I filed the opposition to the petition, point one of my argument was “This Court has no jurisdiction because the petition is untimely.” By about 8 months. A month or two later we got an order from the Supreme Court: “the petition for certiorari is denied”.
So, there you have the mandate and why it exists and what it does.
The letter you reference is a cover letter, advising the parties of the mandate having been filed. That’s all.
May I add my voice to the many who’ve already taken note of EW’s crescendo of posts today?
And yes, the quantity is awesome, but more importantly is the quality of analysis, dot connection and just darn good writing!
EW, you’ve keep raising the bar like this and we’re gonna need the Hubble telescope to see you. *g*
That’s the round robin stuff that makes you nuts
I went through some of this in more detail back here but you end up with something like –
Pakistan gives us al-Libi sometime after his capture in Nov 2001. We use coercion and al-Libi self-describes himself as a member of the al-Qaeda executive council so we know we have an important guy, based on that coercion.
At this point we have nothing else to say that al-Libi is a member of that council or to say that Zubaydah is a high ranking al-Qaeda member and by Feb 2002, DIA is questioning al-libi’s credibility.
In March 2002 we capture Z and Noor al-Deen. Al-Deen says Z isn’t a high ranking member of al-Qaeda and al-Deen is promptly disappeared to Syria, never to be heard from again other than via some of Grey’s sources.
In June of 2002 we capture al-Faruq and (also before the August memo) reportedly begin subjecting him to sleep deprivation and other coercion over a three month period that ends with him breaking the first part of Sept (no reference to whether anything was added to his other coercion after the walling and waterboarding approvals in the August memos – but that might factor in to why he inexplicably became so chatty by the first part of Sept.
So then you have
*al-Libi under coercion self confirming that he is a member of alQaeda’s governing council,
*al-Faruq under coercion self-confirming that he is the top al-Qaeda in Southeast Asia,
*al-Faruq under coercion confessing that al-Libi and Zubaydah had ordered him to plan large scale attacks on every country he could think to name,
*Zubaydah under coercion cross-confirming that al-Faruq is high up in al-Qaeda,
and elsewhere
*Binyam Mohamed under torture cross confirming Zubaydah’s high up al-Qaeda status and confirming that he and Jose Padilla visited a nuclear weapons
spoof article on the websitetraining website;*Zubaydah under more torture cross confirming that Padilla could swing a bucket over his head
etc.
later days – you have al-Libi permanently disappeared. al-Noor appears to be permanently disappeared. al-Faruq has some odd stories which apparently end up with him escaping and later being killed by British troops (who won’t confirm that the guy they killed is the same guy the US supposedly questioned in 2002) No one seems to have gone back over al-Faruq’s claims to have been … well, seemingly to have held the position that Hambali held (and where was all that great torture information from al-Faruq when it came to avoiding the Oct 2002 Bali bombings?)
Anyway, that’s why I say it is so aggravating to go back and read the Padilla press conf that was supposedly generated after all these depts (FBI, CIA, DOJ, etc. etc. ) worked together and pored over docs. Zubaydah is again portrayed as a key operational guy and and there are references to how everything has been checked and cross checked and cross confirmed etc. – and yet, no mentions of Z being nuts, or of Mohamed having his penis razored, or of the “research” on dirty bombs done by Mohamed and Padilla being a look at the spoof article, etc. Instead, just a sales job with a hand picked faceman to make the pitch.
And a the people who could challenge the storylines prominent by their disappearances, without Congressional questions posed.
maybe this has already been posted, ABC reported that there are written logs of the destoyed torture tapes:
http://abcnews.go.com/Blotter/…..038;page=1 (its at the very end of the video.)
Also has a reporter confronting Jim Mitchell in his running shorts in Florida and Bruce Jessen entering his offices in Spokane.
Also known as a giant circle jerk.
Yes. Absolutely. But if my headline is “Bradbury’s Circle Jerk,” where’s the alliteration?
We’re aiming for artistry here, dontcha know?
Bradbury’s Bellybutton.
Is that something new on the market like Cadbury’s Chocolate?
Just in time for Easter.
Well, there’s brown coming out of it. Don’t rightly know that it’s chocolate however.
Oh yeah; damn straight.
eots@7 – interesting to see how Kirakou is backpeddling in that story too, isn’t it? I’m sure he was just confusified and the guts to come out and talk openly about it all and the inaction of the CIA after he did misrepresent the facts in domestic propaganda … were all just by the bye. And after pulling off that illegal domestic propaganda he gets rewarded with a gov slot.
OT – while there’s a push on for declassifications, I’ve found one thing I can join with Crazy Pete on – whatever happened with the declassification of the IG report on the CIA blowing up US planes with US missionary’s and killing an American missionary’s spouse and infant child?
http://abcnews.go.com/TheLaw/S…..038;page=1
Pete wants that one out – I think it would be a good thing, as we are looking at the reliability of Muller and Rizzo et al And Priest had also reported that there was supposed to be an IG report into somewhere between 10-30 “oops” renditions like el-Masris.
Yessir Dick – let’s get it all out there.
And more OT – The DOJ OIG has this report (PDF of 28 pages) on their investigation of another loyal Bushie/flunkie, J. Robert Flores, former Administrator of the Office of Juvenile Justice and Delinquency Prevention.
Basically, the DOJ OIG gave him a pass on all his antics, though I found this DOJ OIG “snark” on Page 5 mildly amusing:
(My Bold)
Look, frankly you probably don’t need Obama to cave. Walker is going where he’s going, the 9th seems on board, so the only thing like to divert his path on at least some of these issues is Justice Kennedy–and he’s been leaning our way on executive power issues of late.
If it works through the courts it becomes a precedent.
Exactly right, and Walker has locked this stuff in procedurally and factually the way he has played this. The 9th will be fine; no reason to worry about them. By the time it gets to the Supremes, if it does, they are going to play hell fucking with the decision. Seriously.
“We tortured her because she was a witch?”
“How do you know that she was a witch?”
“Because she admitted it under torture!”
One completely meaningless correction:
See, by March 27, 2002, we’d already shipped al-Libi off to Egypt, so technically that statement was true.
Ah there you go! Now you’re thinking like the torture apologists do.
Ah! Here is where the Serious talk is. The Journalists for Chumps thread has been given over to fight songs and such.
If we have prosecution about torture, do we go back to the Clinton administration & what they were doing? Seems like just about every bad thing the Bushies have ever done has some kind of precedent under President Bill. He tested the waters with the tip of his toe (I prefer metaphors using that part of his anatomy, instead of some other), but the Bushies followed by plunging in, both feet first, up to their keesters. “If President Clinton could do it a little, why cant’t we do it a lot?” seems to be their refrain.
Bob in HI
Bob is there something specific that occurred under Clinton that you are referring to or are you just asking more broadly in a quest to bring bipartisanship into future investigations of torture? Genuinely curious, not being snarky at all (I’m saving that for the beer and fight song digression next door ; )
Phred,
Look here, and bmaz’s follow-up.
There are many more examples, but I can’t remember them off the top of my head.
IIRC renditions were done by Clinton on a very small scale, but the Bushies went whole hog with it.
Bob in HI
And that certainly makes Mrs. Clinton’s current role as SecState all the more interesting, doesn’t it?
Yep – it’s why even though I never had any big hopes on Obama, when he picked Clinton for sec of state that pretty much sealed the deal on torture, illegal renditions, etc. He’s been briefed on things out the wazoo (by people with personal agendas like Brennan and Kappes etc but also by others and he’s not so stupid he doesn’t understand agendas, just political enough that he doesn’t mind sharing them)
So he knew when he picked Clinton that it would be another reason to shut down real investigations. Hard to be sending out a “muscular” sec of state to problem spots to really do a hard sell on things while her husband is being openly and publically investigated for violations of CAT during his admin.
Made it very clear he wasn’t going to hold anyone accountable and showed how leashed his has his base. They growled and snarled on cue, then licked feet on cue.