I’ve been puzzling over two references in John Yoo’s testimony at the House Judiciary Committee’s Assholes Who Torture hearing last summer regarding the timing of the drafting of the August 1, 2002 Bybee Memos.

The legal issues that concern the Subcommittee today–involving the interrogation of alien enemy combatants–first arose about six months after the 9/11 attacks, in which about 3000 of our fellow citizens were killed in surprise terrorist attacks in New York City and Washington, D.C.

This timing makes a lot of sense. It would put the start of the legal considerations regarding torture techniques at around March 2002, which is when Abu Zubaydah was captured.

But then later, he dates the first request for an opinion much earlier–to a few months after 9/11.

We gave substantially the same advice to both agencies. Both matters at the time where highly classified and the pressures of time and circumstances were high–we received the first request a few months after the September 11, 2001 terrorist attacks on New York City and Washington, D.C.

[Side note–I wonder if he mentions 9/11 every time he gives dates, as in, "I got married approximately 13 years before terrorists killed 3000 people in New York City and Washington D.C. I moved to Chapman University eight years after the September 11, 2001 terrorist attacks? Update–I guess MadDog’s been puzzling on this point too!]

Now, there are a couple of possible explanations for the seeming discrepancy. 

There’s sloppiness–perhaps in the second reference, Yoo was just interpreting "few" expansively so he could remind his audience of 9/11 and the pressure they were under. I don’t really buy this though, because this statement has to have been incredibly heavily vetter by DOJ and his own lawyers (note the prominence of expressions of "good faith" and  "we tried as best we could"). Given the legal scrutiny Yoo is and was under when he gave this statement in a sworn appearance before Congress, I simply don’t believe that Yoo’s lawyers would permit such an inaccuracy.

There’s the possibility, too, that Yoo is thinking of another detainee-related memo. Perhaps the most likely explanation is that Yoo is thinking of one of the still-unreleased memos published in late 2001 and early 2002, including one of the following:

November 20, 2001: John Yoo to Alberto Gonzales, on "War Crimes Act, Hague Convention, Geneva Conventions, federal criminal code, and detainee treatment"

January 11, 2002: John Yoo to Alberto Gonzales, on the Geneva Conventions

January 14, 2002: John Yoo to William Taft, on prosecution under the War Crimes Act for conduct against al Qaeda

January 22, 2002: Jay Bybee and John Yoo to Alberto Gonzales, concluding the Geneva Conventions do not apply to al Qaeda

January 24, 2002: John Yoo to Alberto Gonzales, on the Geneva Conventions

January 24, 2002: John Yoo to Larry Thompson, on the application of international law to the US.

January 26, 2002: John Yoo to Larry Thompson, on the Geneva Conventions

So perhaps when Yoo refers to the "first request," he is referring to the first request for memos that–in their collective–would eviscerate international law as it pertained to the detainees.

But I do wonder whether Yoo began Bybee One–the memo asserting that, 

Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.

–was first drafted long before August 2002? After all, we know that Yoo’s 2003 memo–which made parallel claims as the Bybee Memo did in the context of the military–was drafted a couple of months before it was published in March 2003. And as a generalized memo, Bybee One did not depend on discussions held in the wake of Abu Zubaydah’s capture in March 2002. 

I ask this question largely because of the suggestion that email evidence may show some of the opinions were originally rejected. Clearly, as early as November 2001, Yoo was chipping away any legal limits on torturing detainees. My question is, how long did it take him before he declared that, "if it was authorized by the President, it did not violate the law"?

These two YouTubes really ought to be watched in tandem.

In both, Condi stops breathing, having been asked a pointed question about her own failures.

It’s especially sickening to watch Condi talk about "unless you were there, in a position of responsibility, you cannot possibly imagine the dilemmas we faced in trying to protect Americans" in the bottom video (at around 1:15) and contrast that with her famous "I believe the title was ‘Bin Laden determined to attack inside the United States"(at 2:48).

I’d be curious to hear Condi describe what she means by "position of responsibility."

Last night, Obama suggested that his Administration may be in the process of softening their Cheneyesque stance on state secrets.

Q Thank you, Mr. President. During the campaign you criticized President Bush’s use of the state secrets privilege. But U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush’s? And do you believe Presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition, if classified information is involved?

THE PRESIDENT: I actually think that the state secret doctrine should be modified. I think right how it’s over-broad. But keep in mind what happens is, we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through what exactly should an overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House Counsel, and others are working on that as we speak.

Now, at one level, this is unsurprising. As I reported last week, Jerry Nadler reported that Eric Holder appeared to agree in principle with Nadler’s efforts to reform state secrets.

But the claim that, "we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up"? That I’ve got limited patience with. True, the Administration did have a bunch of state secrets cases come up right at the beginning of the term. True, many of those came up even before Eric Holder was confirmed.

But the most hysterical legal invocation of secrets (though not the most morally problematic one, which I consider Binyam Mohammed’s case) came in response to the 9th Circuit’s rejection of the Administration’s al-Haramain appeal. That was February 28, more than a month after Obama was inaugurated, and several weeks after Holder was confirmed. Mind you, that was not a formal invocation of state secrets (I’ll explain why I think that’s significant in a second)–it was a reaffirmation of the 9th Circuit’s prior ruling that state secrets had been properly invoked in that case. But it was a crazy, Cheneyesque claim to fairly unlimited powers on the part of the executive to control classification.

So I don’t buy that Obama (or just as importantly, Greg Craig) has been planning to roll back Bush’s use of state secrets. Rather, I think the Administration (and particularly Greg Craig) has gotten interested in "fixing" state secrets because it’s going to be fixed one way or another, and by joining in now, they’ll be able to limit how it gets rolled back.

Consider the way the Obama Administration dealt with the Rove and Miers’ testimony. They could (and still might, if and when Dawn Johnsen ever gets confirmed) have ended that squabble simply by withdrawing the Bradbury memo laying out absolute immunity. Or, they could have briefed the Circuit Court but argued against the claim. Instead, they negotiated a settlement that–while it left Bates’ District Court ruling on the books–still left somewhat unsettled the status of absolute immunity. Greg Craig got involved in a way that yielded actual results, without ceding the principle that the executive can make crazy unilateral grabs to power.

So look where we are now. There have been a great number of rulings recently that assert the Courts’ authority in determining the appropriate way to deal with classified information in trials. The 9th–the same circuit that will rule on all the pending wiretap cases–just issued a ruling which limits the invocation of state secrets to evidence, not programs.

Now, consider how that ruling hangs over the al-Haramain case. Judge Walker will now be obligated to review the pieces of evidence in the al-Haramin suit to determine what can and cannot be entered into evidence. That is precisely the stance the Cheneyesque al-Haramain brief–with its threat to take its evidence and go home rather than have Judge Walker rule on whether al-Haramain could have access to it–tried to prevent. So in the most recent of these kinds of briefs submitted by the government, it was frantically trying to claim that the government gets to determine on an evidence by evidence basis what could be used in the suit. But that stance is–so long as the recent 9th Circuit ruling stands–no longer possible.

The Courts are moving rapidly to sharply curtail state secrets. So if Obama (and Greg Craig) want to retain it, they’ve got just one choice–to deal with Congress. And I suspect that’s what Obama (and Greg Craig and Holder) are up to–trying to influence what those "additional tools" will be. 

photo courtesy of S and C

The UAW was willing to negotiate, but the banksters weren’t. So Chrysler will now enter bankruptcy.

The Obama administration will announce at noon today that it will take Chrysler LLC into a historic bankruptcy to force a cut in debt key to a partnership with Fiat S.p.A. after three firms refused a sweetened offer.

With the UAW late Wednesday ratifying cost cuts in its contract and cuts in the money due its retiree health-care trust fund, President Barack Obama will announce a Chrysler-Fiat deal and the government’s “surgical” bankruptcy plan later today.

The administration "was willing to give the holdout creditors a final opportunity to do the right thing," an administration official said. But "the agreement of all other key stakeholders ensured that no hedge fund could have a veto over Chrysler’s future success."

The lack of an agreement will not "impede the new opportunity Chrysler now has to restructure and emerge stronger going forward," the official said.

The Administration claims they’ll be able to pull off a surgical bankruptcy and still pull off the Fiat deal on the other side, leaving Chrysler with some lease on life. But meanwhile, the banksters get to collect on their bets against Chrysler and get rich rich rich! All while sucking at the Federal teat. 

Update: JPMorgan Chase may have been willing to deal. It was a couple of hedge funds that were the final holdouts.

The holdouts are no longer the big four banks (and TARP recipients) that together own 70 percent of Chrysler’s debt. Both the Journal and the Washington Post have fingered three hedge funds — Oppenheimer Funds, Perella Weinberg Partners’ Xerion Capital Fund and Stairway Cap Management — as the sticklers. The government is faced with the unenviable prospect of getting unanimous consent from all the bondholders to make a deal, which gives the hedge funds extraordinary leverage. In the parlance of Wall Street, taking a hit on what you are owed is known as a "haircut." The hedge funds seem to be allergic to the barbershop.

From Obama’s statements.

He starts by saying they get a new lease on life. 

Talks about its role in US history, and in building the middle class. 

It’s been a pillar of our economy, but a pillar that’s been weakening. Designing cars that were less reliable and less fuel efficient than competitors. As I’ve said from the start, we cannot keep this company afloat on an endless supply of tax dollars. Must be invested in making Chrysler more competitive. It’s also clear that if Chrysler was able to form a partnership with Fiat, there was a chance it could have a new lease on life. I challenged them to design a plan that would protect American jobs. Chrysler’s most important stakeholders have agreed to make major sacrifices. Pleased to announce that Chrysler and Fiat have formed a partnership that has a chance for success. Save thousands of jobs at Chrysler and tens of thousands at suppliers. Every dime will be repaid before Fiat can take a majority ownership. Canada also committing resources. It’s a partnership that will give Chrysler a chance not only to survive, but to thrive. Fiat has demonstrated it can design the clean efficient technology that is the future. Fiat also working to build fuel efficient cars and engines here in America. Unprecedented sacrifices. Management–especially Nardelli–constructive. UAW already made painful sacrifices, made further cuts. Several major financial institutions, including JPMC, agreed to reduce their debt. German automaker agreed to give up its stake in Chrysler.

While many made sacrifices, a group of hedge funds held out, they were hoping that everyone else would hold out. I don’t stand with them. I stand with Chrysler’s employees and management and suppliers. I stand with the millions who want to buy Chrysler’s cars. Supporting Chrysler’s plans to use our bankruptcy laws. Nobody should be confused about what BK means. Clearly charted path on the way to Chrysler’s survival. Because the biggest stakeholders have already agreed, this process designed to deal with those last few hold outs. Not affect the ability to buy a Chrysler or to get it serviced and repaired. Full support of key stakeholders. Every confidence that Chrysler will emerge stronger and more competitive. I know some believe BK should not happen. I recognize path we’re taking is hard, but it’s the right one.

Also to shore up financing. It’s not clear that Chrysler Financial would require stream of money to remain compatible. GMAC has agreed to finance new Chrysler sales. Additional capital to GMAC so consumers can get auto loans and dealers can finance inventories. Tomorrow small business admin to include more dealers and suppliers. Steps to make it easier to buy American cars. If you decide to buy a Chrysler, warranty back by US government. Working to accelerate purchase of federal fleet. Fleet modernization.

As pleased as I am, we know that far too many Americans are still struggling. That’s why as I discussed I’ve named Ed Montgomery to be director of recovery reaching out to hardest hit areas. Challenging times for American auto industry and American people, shared purpose, if we can embrace the idea that we’re all in it together, we will succeed not only with Chrysler, but we will rebuild our entire economy. And make 21st century another American Century.

Chrysler and GM are going to come back. 

Cenk Uygur got an absolutely damning video of Condi Rice channeling Richard Nixon. After denying she "authorized" torture–she just conveyed policy authorization to the agency, but I’m sure that authorization had a virgin birth before that–she explained that if the President authorized it, then it couldn’t violate the Convention Against Torture.

By definition, if it was authorized by the President, it did not violate our obligations in the Convention Against Torture.

By definition, I think Condi’s future just dimmed considerably.

As Keith O reported last night, Jason Leopold found a curious reference in an email that was in the ACLU’s FOIA document dumps (there’s a reference to it, too, in the DOJ IG Report on torture, starting on page 137). It seems to suggest President Bush signed an Executive Order authorizing "sleep management," the use of dogs, stress positions, environmental management, and sensory deprivation.

Before we hunt for the EO, here’s what this document appears to be. In May 2004, in the wake of the Abu Ghraib scandal, the FBI sent out an order requiring that "if an FBI employee knows or  suspects non-FBI personnel has abused or is abusing or mistreating a detainee, the FBI employee must report the incident."

In response to that order, the on-scene commander in Baghdad tried to get more direction on what the order meant by "abuse" on May 22. He (or she) wanted to know whether techniques not authorized for FBI personnel–but authorized for others (presumably both intelligence and military personnel)–should be considered. In the FBI commander’s understanding, Bush signed an EO some time in the past that authorized abusive techniques.

We are aware that prior to a revision in policy last week, an Executive Order signed by President Bush authorized the following interrogation techniques among others: sleep "management," use of MWDs (military working dogs), "stress positions" such as half squats, "environmental manipulation" such as the use of loud music, sensory deprivation through the use of hoods, etc.

It appears the unit in question may be the Special Mission Unit Task Force, a Special Ops unit conducting high level interrogations. The SASC Report describes what appears to be a similar set of techniques available for the SMU TF that were changed not long before the FBI commander sent the email. (This section appears on page 222, but there’s more discussion of this unit starting on page 158.)

[two lines redacted] Prior to March 2004, however, each operated under a distinct interrogation SOP. On March 26, 2004 the SMU TF implemented a single interrogation policy that covered SMU TF operations in both Iraq and Afghanistan. 

The March 26, 2004 SMU SOP authorized 14 "interrogation techniques" not explicitly listed in FM 34-52 [the Army Field Manual], including use of muzzled dogs, "safety positions (during interrogations)," sleep adjustment/management, mild physical contact, isolation, sensory overload, sensory deprivation, and dietary manipulation.

According to the Church Special Focus Team Report, the March 26, 2004 SMU TF SOP included a larger number of interrogation techniques outside of FM 34-52 than the SOPs of any other military organization at the time. 1733 In fact, many of the techniques in that SOP had been abandoned by conventional forces in Afghanistan months earlier, after CENTCOM identified legal concerns with the techniques. 1734 Although the authority in the March SOP to use "muzzled dogs" was rescinded on April 22, 2004, the remainder of the techniques remained authorized until May 6, 2004, when GEN John Abizaid, the CENTCOM Commander, suspended use of all non-FM 34-52 techniques. 1735 The Church Special Focus Team report said the techniques were suspended as a result of detainee abuse at Abu Ghraib. 1736 GEN Abizaid stated that neither he nor his staff"reviewed or approved" the March 2004 SMU TF SOP "prior to its issuance.

A footnote describes what all these techniques were–and show that they were changed on May 18, which would correlate with the revision in policy the previous week described in the FBI email.

The 14 techniques were the use of military working dogs, safety positions·(during interrogations), use of blackened goggles/ear muffs during interrogation, sleep adjustment/sleep management, use of female interrogators, sensory deprivation, sensory overload, change of environment/ environmental manipulation, diet manipulation, use of falsified documents or reports and deception, use of individual fears, use of isolation, fear of long-term incarceration, and mild physical contact. Battlefield Interrogation Team and Temporary Screening Facility Standing Operating Procedures (SOP), Change 2 Dated May 18, 2004.

(Note, the report also describes the SMU TF Commander writing to ask to retain many of these techniques–though that happened the day after the FBI commander wrote the email.)

So this may well be the set of approved techniques the FBI commander described.

But that doesn’t tell us how they got approved. The passage clearly shows that General Abizaid at least claimed never to have seen the Standard Operating Procedure this unit was using in interrogations. An earlier passage explains that SMU TF’s interrogation techniques came from Rummy’s approval of techniques–intended for Gitmo–on December 2, 2002 and adopted by the SMU TF unit via Afghanistan. Still another reference–referring to techniques used in 2003–said Lieutenant General Ricardo Sanchez and Colonel Thomas Pappas "were unaware of what interrogations were authorized" for the unit. Finally, another passage describes how the commander of the unit disdained the notion of approving a summer 2003 version of the unit’s interrogation techniques.

[redacted] The July 15, 2003 policy contained the signature block of the SMU TF Commander [redacted] but was unsigned. [redacted] told the Committee that he did not think he ever approved or even saw an interrogation policy. He stated, however, that he was aware that the SMU TF used sleep deprivation, loud music, light control, isolation, "comfort positions," and military working dogs. The SMU Task Force Legal Advisor who served at the facility in July and August 2003 stated that he was sure [redacted] saw the policy, that he asked him to sign it, and that a copy of the policy sat in the Commander’s inbox during the Legal Advisor’s deployment to the Task Force.

[redacted] The SMU Task Force’s Legal Advisor who arrived at the TF facility in late August 2003 likewise said that his predecessor had tried, without success, to get [redacted] to sign the policy. That same Legal Advisor stated that he too tried numerous times, also unsuccessfully, to get the Commander to sign the policy. The Legal Advisor added that it got to the point where he would print out a fresh copy of the policy every night and give it to [redacted] aide. The Legal Advisor said that he knew the Commander had received copies of the policy from his aide, but that he had a habit of "losing" the draft policy. He said that the exercise became "laughable" and eventually, he was forced to raise the issue with the [redacted] legal advisor. In the absence of [redacted] the Legal Advisor told the Committee that his direction to SMU personnel was that the unsigned SOP applied to SMU TF interrogations.

Now, between the time this mockery occurred and the 2004 incidents referred to by the FBI commander, the abuses of this unit had received significant notice. In particular, Colonel Steven Kleinman–who did a JPRA training session with the unit in September 2003–repeatedly warned unit members they were violating the Geneva Conventions. Ultimately, Kleinman was physically threatened and JPRA was withdrawn.

Lt Col Kleinman referred to the DoD IG report’s statement that "friction was developing" as an understatement and said that he felt his life was being threatened at the SMU TF. 1437 He recalled one instance (after he stopped what he believed to be in violation ofthe Geneva Conventions) in which an SMU TF member told him, while sharpening a knife, to "sleep lightly," noting that they did not "coddl[e] terrorists" at the SMU TF.

And there were a number of other warnings in 2003. Hell, even the CIA had told the unit–very early on–they were getting out of control. 

In May 2003, CAPT Dalton, Legal Counsel to the Chairman ofthe Joint Chiefs of Staff, sent an email to CENTCOM lawyers stating that CIA General Counsel Scott Muller had called Jim Haynes and told him that the techniques used by military interrogators at the SMU TF facility in Iraq were "more aggressive" than techniques used by CIA to interrogate the same detainees.

All of these details tell us that high level commanders should have known what was going on in the unit, and should have known this was going to be a problem. They should have been concerned enough to make sure these techniques had authorization from somewhere.

But it doesn’t explain who had approved the techniques in use in early 2004, described by the FBI commander (according to the email, he or she arrived in Iraq on January 10, 2004). And from the sounds of things, the guys doing the interrogations had told the FBI that President Bush had signed an Executive Order authorizing it.

A review of the EOs signed by Bush prior to this point shows that it is not a discrete EO (2001, 2002, 2003, 2004). 

I can think of two possibilities that leaves. 

First, it’s possible these guys–who are special ops–are just cowboys who don’t give a rat’s ass whether the torture they’re committing is approved or not. No one seems to have cared whether they had signed approval for these things. So maybe these guys told the FBI commander that Bush had approved to shut him up.

It’s possible, too, that Bush (or Cheney) simply gave them a written authorization that doesn’t formally amount to an EO that would be printed in the Federal Register.

But there’s another possibility. As intelligence interrogators (at one point, the SASC report describes them as seeking intelligence information), these guys’ activities would fall under EO 12333, the EO that has governed intelligence activities since Reagan.  That EO does have several passages on military intelligence activities. And that’s an EO we know Bush "modified" without actually changing in writing. If Bush was in there anyway, eliminating restrictions on wiretapping Americans and–potentially–eliminating the prohibition on assassination, then why not pixie dust the EO to allow the special forces to torture, too?

In any case, the abuses committed by this unit were widely known, yet have not–AFAIK–been prosecuted (and the FBI discussions about the email in the DOJ IG Report show no great alarm at the report). That suggests they had authorization from someone. Was it from Bush?

You and I are not the audience for Obama’s answer to this question. The audience for this answer is those who idolize Churchill, conservatives who place national security above all. The audience for this answer is a group of Republicans who can be persuaded on this point.

Ultimately, though, his answer to the question "Did the Bush Administration sanction torture," is, "Whatever legal rationales were used, it was a mistake."

Well, I guess if Leahy can’t have his truth commission he can invite Jay Bybee to perjure himself before the Senate Judiciary Committee. (h/t TP)

I write to invite you to testify before the Senate Judiciary Committee.

I enclose a recent article from The Washington Post. It suggests that you have expressed regret at the content of the Office of Legal Counsel (OLC) memoranda issued while you headed that office and that you feel that they were misused. The article reports that you were concerned about the exercise of the policies that the opinions authorized, that you were "disappointed by what was done to prisoners," and that you felt that "the spirit of liberty has left the republic." The article notes that your associates claim you do not feel ownership of these memos but, instead, describe your involvement this way: "He was head of the OLC, and it was written, and he was not pleased with it." By coming forward and testifying before the Committee, you will have the opportunity to amplify or correct these accounts, and explain your role and your views.

The Post article concludes that you have allegedly found it "frustrating" not to be able to explain your position with regard to these memos. By coming forward to testify, you will be able to explain your position with regard to these matters, including your involvement and your knowledge regarding how these memos were written and approved, what considerations went into that process, who was consulted in that process and the roles of various individuals.

According to the press account, you became the Assistant Attorney General in charge of the Office of Legal Counsel after interviewing with White House Counsel Alberto Gonzales because you were interested in being nominated to a judgeship on the Ninth Circuit Court of Appeals. Apparently he asked if you would be willing to head OLC first. I am sure you would like an opportunity to come forward and set the record straight with respect to whether and, if so, how your judicial ambitions related to your participation at OLC.

You were nominated by President George W. Bush to serve as head ofOLC on September 4, 2001. You were confirmed on October 23,2001. While serving as the head of OLC you were then first nominated by President George W. Bush to be a Federal Judge on the United States Court of Appeals for the Ninth Circuit on May 22,2002, and renominated on January 7, 2003.

I’m guessing Maureen Mahoney is really regretting that WaPo article about now. Poor Judge Bybee is going to have to decide whether he’ll admit that he signed his name to John Yoo’s piece of crap opinion for a lifetime appointment–or whether he’ll just take responsibility for authorizing torture.

Mind you–Leahy doesn’t seem to believe that Bybee’s going to take this opportunity to perjure himself–he didn’t even include a date for the testimony. But it make Bybee think twice before seeding self-serving articles in the NYT.

The Politico presents yet another chapter in their serialized he-said-she-said story about whether or not Nancy Pelosi should have and could have objected during the torture briefing she got in fall 2002, once again ignoring the clear evidence that CIA did not notify Congress of actions they had already taken, as required by law.

Nancy Pelosi sat down with CNN’s Candy Crowley tonight and gave her most detailed — and passionate — explanation of her muted behavior during an initial classified briefing on enhanced interrogation procedures in 2002.

Crowley — a tough, well-informed and underrated interviewer — kicked it off by asking the Speaker about about a column by former CIA director and ex-House intel chairman Porter Goss accusing Democrats of collective "amnesia" for urging investigations of waterboarding after remaining relatively mute during those first classified briefings.

PELOSI: Well, first of all, let me say that perhaps we do live in an alternate universe, Porter and I.

Porter’s orientation is that he was a member of the CIA before he came to Congress and he speaks now as a former director of the Central Intelligence Agency.

CROWLEY: Is he wrong?

PELOSI: Perhaps he is seeing it from his perspective. If they say we have a legal opinion, it means we’re going to use it. That’s not how I heard it. They said they had a legal opinion. They said they weren’t going to use and when they did they would come back to Congress to report to us on that. But that’s how I heard that.

[snip]

Crowley then asked why she didn’t raise objections to the briefers, which riled up the Speaker.

PELOSI: To what end? To what end? No, we’re not — they didn’t say they were doing it. But you know what, I’m not getting into that. The fact is, is that I know what they told us and I know that they did not share our values.

So any briefing that you would get from the Bush administration on the subject is one that is probably something you’re not going to agree with, and two, maybe not the whole truth anyway.

Glenn. Let’s play a little "find the criminal conduct in a stupid beltway interview" game, shall we?

I’ll grant that Nancy Pelosi disagrees with Porter Goss and Crazy Pete Hoekstra on whether or not her complaints about the CIA said it would–in the future–torture would have been effective. I understand that that kind of thing apparently gets your ‘Nads off. 

But do you see that Pelosi is saying the Administration was not giving the whole truth here? Have you thought about what she might be referring to? Here’s a hint–an assertion with which Goss’ comments do not disagree (Hoekstra’s are irrelevant because he wasn’t in that briefing).

they didn’t say they were doing it

The CIA came before the Gang of Four, after they had already waterboarded Abu Zubaydah 83 times in a month, and told the intelligence leaders that they had an opinion that would allow them, in the future, to torture. But they didn’t tell Congress they had already been in the business of torture for at least a month. The Bush Administration and the CIA failed to fulfill their legal obligation to notify Congress before it engaged in this kind of activity–hell, they didn’t even notify them after they had engaged in it, not for some months afterwards.

I get that you like he-said-she-said. But you’d think you might spare some interest in the failure to comply with the law sitting right in front of your face.

But I guess real crime isn’t as fun for you as stupid beltway disputes, huh?

I’ve been asked by several people to comment on Obama’s first 100 days (I’ll put up links later). But no one has asked me to comment specifically on his 100 days of auto bailout. Reading this article, though, made me want to do a post addressing the auto bailout specifically. Thus far, I’d give Obama a A-. 

To explain my thinking, let me first remind you of what I said when Obama first inched Chrysler and GM closer to bankruptcy:

Let me start by saying I’m non-plussed by the call for Rick Wagoner’s head. I think Wagoner was making the right moves recently, but he was also responsible for years of inaction. So I’m not sorry to see him gone. In any case, Obama is forcing out the entire board of GM, so Wagoner would have had to go anyway. [ed: this last bit was incorrect–they’ve been changing part of the board membership]

[snip]

Thus far, it’s tough to tell whether this is a good plan or not. As far as Chrysler, they can’t survive alone. So the forced marriage gives it one chance to avoid bankruptcy that otherwise seems inevitable. I don’t think Fiat will take the deal, so I expect Chrysler to enter bankruptcy within the next month.

As for the GM plan, they are finally talking about dealer concessions (which a "quick rinse" bankruptcy would help, too), which was the element that everyone had thus far ignored. And some of this tough love with GM seems to be a logical next step given bond-holders’ intransigence since December. GM had been, thus far, unable to get its bond-holders to accept the losses they had told GM, in November, they would take, so Obama is threatening to use a court to make them do so–followed by UAW concessions.

At the time, I believed this was the right (albeit incredibly painful) decision. I was skeptical that the auto task force could pull off anything viable with Chrysler. Things are still mighty uncertain, just a day before the deadline. But analysts increasingly believe that Chrysler will avoid liquidation, which impresses me.

As far as GM goes, I went to GM’s Tech Center yesterday to test drive the Volt (I’ll do a couple of posts on that on Friday and next week). And while the GM restructuring is, in some ways, even more intractable than the Chrysler one, I came away yesterday believing (for the first time in a long while) that "as goes GM so goes the nation."  And–speaking as someone who watched from a close vantage point when Alan Mulally almost immediately provided leadership at Ford in 2006, which largely explains why it has avoided the plight of GM–I got the sense that Fritz Henderson (who replaced Wagoner) was exercising that kind of leadership now at GM. 

Finally, don’t forget, Obama’s appointment of Ed Montgomery to focus on making this process less painful for the auto states than it otherwise would be. I plan to do a follow-up on what he’s been doing, but the appointment demonstrated a commitment to help the auto states through this period.

So, thus far, I feel Obama made not only the right decision, but has implemented that decision better than I expected. 

Now, the NYT article reminds many of the reasons I believe Steven Rattner is a conflicted asshole who doesn’t know shit about cars. My visit to the Tech Center only reinforced the opinion that task force members still have some things to learn about how the auto industry works.

But when I read this quote from John Dingell, I couldn’t help remember some conversations with the Dingells during the primary and early general election period.

“At this point, the administration is just playing poker,” Mr. Dingell said. “If he gets the damn loans and saves the industry, I guess I won’t be able to complain.”

During the election, they rightly raised very real concerns about whether the Reagan Democrats in Michigan would support Obama–concerns that, if my district caucus was any indication–were really well-founded. As it happened, though, Obama cleaned up in Michigan and convinced Stanley Greenberg the Reagan Demoracts are a thing of the past.

Overall, I give Obama a lower grade than on the auto bailout–the bank bailout needs to be treated more like the auto bailout. The continued shielding of Bush era criminality, both through State Secrets and a distaste for legal accountability, is a real problem. Obama’s done really important things with the environment and he is actually engaging with the rest of the world. And while I’d have liked the stimulus package to be more stimulus and fewer tax cuts, the investments they did make were really sound investments. So it’s a mixed bag.

That said, I am pleasantly surprised with the auto bailout so far.