Not gonna happen.

I have sent the enclosed notice to the Federal Register for publication, continuing the national emergency with respect to the stabilization of Iraq. This notice states that the national emergency with respect to the stabilization of Iraq declared in Executive Order 13303 of May 22, 2003, as modified in scope and relied upon for additional steps taken in Executive Order 13315 of August 28, 2003, Executive Order 13350 of July 29, 2004, Executive Order 13364 of November 29, 2004, and Executive Order 13438 of July 17, 2007, is to continue in effect beyond May 22, 2010.

Obstacles to the orderly reconstruction of Iraq, the restoration and maintenance of peace and security in the country, and the development of political, administrative, and economic institutions in Iraq continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States. Accordingly, I have determined that it is necessary to continue the national emergency with respect to this threat and maintain in force the measures taken to deal with that national emergency.

Love, Barack Obama.

So even as Obama asks for more money for Afghanistan, he’s officially telling Congress the  national emergency with respect to the stabilization of Iraq Iraq War isn’t going to end anytime soon, either.

The Guardian reports the same, though from the perspective of Odierno, not Obama, missing deadlines.

Update: I was too snide when I wrote this. The fatigue of watching the President’s deficit committee argue that we need to cut Social Security just as we’re about to get a $30 billion supplemental (remember, we weren’t supposed to get anymore of those?) to fight a war in Afghanistan many think we can’t win really got to me.

At one level, this appears to be fairly nondescript: it simply says that certain financial arrangements in place today will extend out past ten days from now. So it’s not an indefinite extension, it’s a bureaucratic detail.

But this language does worry me:

The Iraqi government continues to take steps to resolve debts and settle claims arising from the actions of the previous regime. Before the end of the year, my Administration will review the Iraqi government’s progress on resolving these outstanding debts and claims, as well as other relevant circumstances, in order to determine whether the prohibitions contained in Executive Order 13303 of May 22, 2003, as amended by Executive Order 13364 of November 29, 2004, on any attachment, judgment, decree, lien, execution, garnishment, or other judicial process with respect to the Development Fund for Iraq, the accounts, assets, and property held by the Central Bank of Iraq, and Iraqi petroleum-related products, should continue in effect beyond December 31, 2010, which are in addition to the sovereign immunity ordinarily provided to Iraq as a sovereign nation under otherwise applicable law. [my emphasis]

That is, it’s not just a bureaucratic extension of financial protections for Iraq past the next ten days. It’s a formal notice that Iraq will have its financial training wheels on until December, maybe, or maybe longer. It seems like it’s for the interest of Iraq, but I worry that it’s for the interest of ongoing US control over Iraq’s finances.

The eye-popping part of this exchange is the news that all the efforts to protect the Gulf Coast are only going to collect a fraction of it from reaching the shore.

But the whole comment is worthwhile, because Capps expresses so well the outrage we should all be expressing about the inefficacy of oil spill recovery.

Jason Leopold has a long article and videotape of an interview with Jon Kiriakou that you should check out in full. I’ll discuss their conversation about Abu Zubaydah’s torture (and, more interestingly, Kiriakou’s knowledge about who Abu Zubaydah is) later. But I wanted to look more closely at Kiriakou’s description of a June 10, 2003 meeting at which (Kiriakou says) Scooter Libby made it clear that he knew of Plame’s identity.

Kiriakou said he was the “note taker” at this meeting, which took place on June 10, 2003, when I. Lewis “Scooter” Libby, former Vice President Dick Cheney’s chief of staff, “entered the room furious, putting on a big show, arms flailing around, swearing and demanding to know why nobody at the CIA told him that Valerie Plame was married to Joe Wilson.”

Kiriakou said it was clear to him that when Libby “entered the room” on June 10, 2003, he had already known that Plame was an undercover operative.

Now, it always pays to approach Kiriakou’s statements with some skepticism. And his description certainly doesn’t accord with what Grenier testified to at the Libby trial. But for the moment, let’s look at what Kiriakou’s description would mean for the chronology of the week of June 8, 2003.

After a break of several weeks after Nicholas Kristof first reported Joe Wilson’s allegations, the allegations returned again on June 8, 2003, when George Stephanopolous asked Condi Rice about the allegations. Apparently first thing on the following day, June 9, 2003, President Bush expressed to Libby in some way his concern about the allegations. And that seems to have been what set OVP into overdrive trying to learn about the source of the allegations. Later that same afternoon, John Hannah had already completed a briefing for Cheney on the issue.

According to Kiriakou’s story, Libby had his furious outburst on June 10. That would probably mean it happened at the 12:45 NSC DC [Deputies Committee] meeting, four hours before Kiriakou wrote his email requesting more information. Though note, the content of the Kiriakou email we have–which asks for very specific information for John McLaughlin in anticipation of a meeting with Cheney the following day and doesn’t mention the meeting itself–doesn’t match the description he gave Jason:

After Libby’s outburst, Kiriakou said he “went back to headquarters and I wrote an email to all of the executive assistants of all the top leaders in the agency saying, this meeting took place, Libby is furious, we believe that he was conveying a message from the vice president. I wanted to know when did we know that Valerie was married to Joe Wilson, sent it around, nobody ever responded to my email.”

That says, if Kiriakou’s narrative is correct, Libby probably learned of the tie between Plame and Wilson between June 9 and June 10, if not earlier. Which might explain why the date on Libby’s note record learning of Plame’s tie to Wilson appears to be written over. One possibility, for example, is that the note originally read June 9, not June 12.

This is where Kiriakou’s story begins to conflict with Robert Grenier’s and Marc Grossman’s. Marc Grossman testified he told Libby, probably at a DC meeting on June 11 or 12, that Wilson’s wife worked at the CIA (based on the INR memo). And Grenier testified that Libby asked him for information on a phone call on June 11, at which point, Grenier claimed, he “had never heard of [Wilson’s trip] before.” Both claims would be false if Libby had blown up in the June 10 meeting.

Now, both Grossman and Grenier’s testimony is problematic on a number of other levels, so we can’t use their testimony to dismiss Kiriakou’s story out of hand.

But Kiriakou’s story is interesting for two reasons. First, Cheney claimed the following in his interview with Patrick Fitzgerald:

The Vice President also had no recollection of discussing this matter at a meeting on 6/10/03 he attended with Director of Central Intelligence (DCI) George Tenet and CIA Counter Proliferation Division Manager [redacted]

When asked about the Administrations efforts to research Wilsons mission, the Vice President advised that around the time of the initial media reports, exact date not recalled, he spoke to DCI Tenet directly on the secure telephone line (MLP) from his office

[redacted; snip]

Vice President Cheney believed that all of this discussion occurred during a single telephone convseration that he had with DCI Tenet. The Vice President described the tone of his conversation with DCI Tenet as cordial, however, he had a sense that the DCI was defensive and embarrassed about the issue and had not known what was going on with regards to this mission. The Vice President based this latter assertion on the tone and temperament used by the DCI in the conversation, which was uncharacteristic for Tenet.

The Vice President cannot recall if he mentioned the content of his conversation with DCI Tenet to Libby, but he stated that if would have shared it with anyone, it would have been Libby. He probably would not have shared this information with Cathie Martin or anyone else from the OVP staff.

That is, Cheney claims he learned of Plame’s identity not at a meeting with Tenet and Plame’s boss on June 10, the same day Libby allegedly blew up at a Deputies Committee meeting, but on a phone conversation that–at least in the unredacted interview report–lacks a date. Of course, if it came up at that meeting with Tenet and Plame’s boss, it might be more likely to include Plame’s name and covert status.

Then there’s the phone call to Grenier on June 11. As I have noted before, the call to Grenier (the first he ever received from Libby, Grenier testified) was almost certainly not a request for new information, but a request that would have elicited information that Libby and Cheney already knew, but which Martin did not know.

But we know that Libby called Robert Grenier for more information at 1:15 PM that day—precisely halfway into the meeting. Presuming the calendar is accurate, Libby called Robert Grenier in the presence of Cheney and Martin, looking for information he likely already knew (from Grossman and almost certainly from Cheney).

That is, regardless of whether or not Kiriakou’s story is true, Libby and Cheney were almost certainly trying to get someone from the CIA to tell their press person what they already knew about Plame (but, at least according to Martin’s testimony, that she didn’t know they knew). Libby and Cheney were trying to get CIA to tell their press person information so she could pass it onto journalists (notably, Walter Pincus, who had an active request in with OVP for information). And, in fact, that ploy worked; either that day or the next Bill Harlow passed on the Plame information to Martin, though she claims that she never passed it onto reporters.

But consider how this story changes if, the day before this ploy, Libby stormed into a meeting bitching that CIA never told him that Plame was married to Joe Wilson. While that would mean Grenier’s testimony is incorrect on a number of levels, it would add one more level of duplicity on Libby’s part, given that he effectively had already made it clear that Grenier knew who Plame was before he called for information on June 11.

In any case, at the very least the story means that someone–in addition to Scooter Libby–is lying (though if it’s Kiriakou, thanks to the work of now-Criminal Division head Lanny Breuer, he didn’t do so under oath). But given the number of things that happened on June 10, 2003, Kiriakou’s story does add an interesting wrinkle.

One of the key moments of yesterday’s Environment and Public Works hearing on the BP Disaster came when Tom Udall tried to pin the CEOs down on whether, as reported by WSJ, at BP’s direction, Halliburton swapped out the drilling mud for seawater prematurely–something we’ve looked at as well.

BP, the well owner, blames the failure of a big set of valves on the sea floor, known as the blowout preventer, to halt the blowout once it started.

A different account comes from Halliburton, a contractor in the drilling. This account is corroborated to some extent by Transocean, as well as by two workers on the drilling rig, The Wall Street Journal has determined.

This account describes a failure to place a cement plug within the well. The plug is designed to prevent gas from escaping up the pipe to the surface.

Before such a plug is placed, the job of keeping underground gas from coming up the pipe is done by heavy drilling fluid inside the well, commonly known as “mud.”

The plug is normally put in before the mud is removed, but according to the account of Halliburton, Transocean and the two workers, in this case, that wasn’t done—drilling mud was removed before a final cement plug was placed in the well.

It is not clear why such a decision would have been made. Rig owner Transocean says that BP, as owner of the well that was just being completed, made key decisions on how to proceed. BP declined to comment on this account of the drilling procedures.

Predictably, no one really wanted to go on the record whether that was one of what appear to be numerous problems that contributed to the spill. Equally predictably, no one seems to have the well plan that would make this all clear.

The House Commerce Committee is holding the third hearing into what went wrong on the BP Deepwater Horizon rig (CSPAN is showing it on CSPAN3). As is typical for a Waxman/Stupak hearing, the Committee has done its homework, advancing the understanding of what went wrong.

Henry Waxman’s opening statement reveals that the well failed a number of tests, but BP kept testing until getting a passing test, and then proceeded to close the well.

Rigs like the Deepwater Horizon keep a daily drilling report. Transocean has given us the report for April 20, the day of the explosion. It is an incomplete log because it ends at 3:00 p.m., about seven hours before the explosion. But it confirms that three positive pressure tests were conducted in the morning to early afternoon.

The next bullet says: “After 16.5 hours waiting on cement, a test was performed on the wellbore below the Blowout Preventer.” BP explained to us what this means. Halliburton completed cementing the well at 12:35 a.m. on April 20 and after giving the cement time to set, a negative pressure test was conducted around 5:00 p.m. This is an important test. During a negative pressure test, the fluid pressure inside the well is reduced and the well is observed to see whether any gas leaks into the well through the cement or casing.

According to James Dupree, the BP Senior Vice President for the Gulf of Mexico, the well did not pass this test. Mr. Dupree told Committee staff on Monday that the test result was “not satisfactory” and “inconclusive.” Significant pressure discrepancies were recorded.

As a result, another negative pressure test was conducted. This is described in the fourth bullet: “During this test, 1,400 psi was observed on the drill pipe while 0 psi was observed on the kill and the choke lines.”

According to Mr. Dupree, this is also an unsatisfactory test result. The kill and choke lines run from the drill rig 5,000 feet to the blowout preventer at the sea floor. The drill pipe runs from the drill rig through the blowout preventer deep into the well. In the test, the pressures measured at any point from the drill rig to the blowout preventer should be the same in all three lines. But what the test showed was that pressures in the drill pipe were significantly higher. Mr. Dupree explained that the results could signal that an influx of gas was causing pressure to mount inside the wellbore.

Another document provided by BP to the Committee is labeled “What Could Have Happened.” It was prepared by BP on April 26, ten days before the first document. According to BP, their understanding of the cause of the spill has evolved considerably since April 26, so this document should not be considered definitive. But it also describes the two negative pressure tests and the pressure discrepancies that were recorded.

What happened next is murky. Mr. Dupree told the Committee staff that he believed the well blew moments after the second pressure test. But lawyers for BP contacted the Committee yesterday and provided a different account. According to BP’s counsel, further investigation has revealed that additional pressure tests were taken, and at 8:00 p.m., company officials determined that the additional results justified ending the test and proceeding with well operations.

This confusion among BP officials appears to echo confusion on the rig. Information reviewed by the Committee describes an internal debate between Transocean and BP personnel about how to proceed. [my emphasis]

And Bart Stupak’s opening statement reveals that the Blowout Preventer had had some modifications that may have contributed to its failure.

In his testimony today, Lamar McKay, the President of BP America, says that blowout preventers are “intended to … be fail-safe.” But that didn’t happen. The blowout preventer used by the Deepwater Horizon rig failed to stop the flow of gas and oil, the rig exploded, and an enormous oil spill is now threatening the Gulf Coast.

We know that the blowout preventer, the BOP, did not properly engage. The BOP has multiple rams that are supposed to slam shut to pinch off any flow around the drill pipe and stop the flow of oil from the well. There are also shear rams in the BOP that are supposed to cut and seal the pipe to prevent oil and gas from flowing. The question we will ask is why did these rams fail?

Our investigation is at its early stages, but already we have uncovered at least four significant problems with the blowout preventer used on the Deepwater Horizon drill rig.

First, the blowout preventer apparently had a significant leak in a key hydraulic system. This leak was found in the hydraulic system that provides emergency power to the shear rams, which are the devices that are supposed to cut the drill pipe and seal the well.

[snip]

Second, we learned that the blowout preventer had been modified in unexpected ways. One of these modifications was potentially significant. The blowout preventer has an underwater control panel. BP spent a day trying to use this control panel to activate a variable bore ram on the blowout preventer that is designed to seal tight around any pipe in the well. When they investigated why their attempts failed to activate the bore ram, they learned that the device had been modified. A useless test ram – not the variable bore ram – had been connected to the socket that was supposed to activate the variable bore ram. An entire day’s worth of precious time had been spent engaging rams that closed the wrong way.

BP told us the modifications on the BOP were extensive. After the accident, they asked Transocean for drawings of the blowout preventer. Because of the modifications, the drawings they received didn’t match the structure on the ocean floor. BP said they wasted many hours figuring this out.

Third, we learned that the blowout preventer is not powerful enough to cut through joints in the drill pipe. We found a Transocean document that I would like to put on the screen. It says: most blind shear rams are “designed to shear effectively only on the body of the drillpipe. Procedures for the use of BSR’s must therefore ensure that there is no tool joint opposite the ram prior to shearing.”

[snip]

And fourth, we learned that the emergency controls on the blowout preventer may have failed. The blowout preventer has two emergency controls. One is called the emergency disconnect system or EDS. BP officials told us that that the EDS was activated on the drill rig before the rig was evacuated. But the Cameron official said they doubted the signals ever reached the blowout preventer on the seabed. Cameron officials believed the explosion on the rig destroyed the communications link to the blowout preventer before the emergency sequence could be completed.

In other words, the emergency controls may have failed because the explosion that caused the emergency also disabled communications to the blowout preventer. [my emphasis]

Needless to say, today’s hearing should be a lot more comprehensive than yesterday’s hearings.

[Note Update Below]

On the fateful September 11, 15 men from Saudi Arabia, along with four others, perpetrated the attacks on the World Trade Center in New York. Since that time, the United States has invaded Afghanistan and Iraq in response with hundreds of thousands dead in the process. Saudi Arabia was not only never considered as an enemy, its citizens were spirited out of the country while US citizens were grounded.

Also since then a list longer than you can measure of countries and/or entities have been designated as global terrorists by the United States government. One of those so designated is al-Haramain of Oregon, who happens to be the root plaintiff in the critical litigation – pretty much the sole remaining substantial hope of challenging the incredible, illegal and unconstitutional executive power grabs by the Bush/Cheney Administration now hypocritically supported and adopted by the Obama Administration.

In spite of the fact there has never been any substantive link to terrorism, much less September 11, on the part of al-Haramain Oregon, the US government has steadfastly maintained it on the designated list. Now maybe al-Harmain was, and maybe it was not, even remotely involved in terrorism in any provable way; however the one irreducible fact is the US has never, despite repeated challenges, anted up any convincing factual support on the record for the allegation.

In fact, while al-Haramain Oregon is defunct and no longer exists in any form, the US has stood mute and even gone so far as to allow an US Federal Court to declare their wiretapping of al-Haramain’s attorneys, nearly a decade ago, patently illegal. All the while still maintaining the long defunct and non-existent charity on the specially designated terrorist list and so cocksure and adamant about it that the government has stated they cannot allow any judgment to be entered, much less settle, the al-Harmain litigation because they could not possibly think of a designated terrorist organization receiving one red cent from the US government.

Such is the seriousness of actions that could lead an entity to be designated a terrorist by the United States government. Well, except for the Saudis of course. And now, apparently, the Pakistani Taliban. From Mike Isikoff at Newsweek Declassified:

In light of evidence that the group known as the Pakistani Taliban was behind the attempted May 1 Times Square bombing, the Obama administration is “actively considering” designating it as a ”foreign terrorist organization” in the next few weeks —a move that would allow the U.S. government to freeze any assets belonging to the group and make it a federal crime to assist the group, officials said Tuesday. But the disclosure, first made by State Department spokesman P.J. Crowley, immediately raised questions among some counterterrorism experts as to why Washington didn’t act sooner. “I’m pretty surprised that it has taken the U.S. government such a long time to do this,” says Hassan Abbas, a Columbia University professor and former Pakistani police officer who is considered the leading academic expert on the Pakistani Taliban. “This is certainly one of the most lethal [terrorist] groups in South Asia and I would rank it in the top five of all international terror groups.”

Now, granted, there is a technical distinction between the specially designated terrorist organization list by the Treasury Department that al-Haramain is on, and the “foreign terrorist organization” list by the State Department Isikoff describes; however, the asset freezing and general tenor are effectively coterminous. So, it is pretty interesting the Obama Department of Justice clings so desperately on the designation of the defunct and no longer existent al-Haramain while fretting and vacillating so strenuously over the Pakistani Taliban.

Golly, you would almost think the US government is prone to using their prohibited terrorist designations in some kind of shell game for political expediency. Awfully convenient for an Obama Administration in need of a handy excuse to continue propping up Bush/Cheney patent illegality on the warrantless wiretaps of the terrorist surveillance program; powers they have relentlessly protected and expanded for their own use. I wonder what Judge Vaughn Walker would think of such hypocrisy?

UPDATE: As Marcy noted, there is a new decision from the Northern District of Ohio in the case of KindHearts Charitable Humanitarian Development v. Geithner affecting the issue of terrorist designation. Here is the full order. These lines in the intro to the court’s discussion lay out the gist:

OFAC’s authority to designate SDGTs and block the assets of entities under investigation for supporting terrorism stems from the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701-06, and Executive Order 13224 (E.O. 13224).

On August 18, 2009, I found that in blocking KindHearts’ assets, the government violated KindHearts’ constitutional and statutory rights. KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner (KindHearts I), 647 F. Supp. 2d 857 (N.D. Ohio 2009) (August 18 Order) [Doc. 87]. I found that, in blocking KindHearts’ assets, the government: 1) violated KindHearts’ Fourth Amendment rights by failing to obtain a warrant based on probable cause; 2) violated KindHearts’ Fifth Amendment rights by relying on criteria for the BPI that are unconstitutionally vague as applied, and by failing to provide KindHearts with adequate notice and a meaningful opportunity to respond; and 3) acted arbitrarily and capriciously in limiting KindHearts’ access to its own funds to pay counsel for its defense. Id. I reserved ruling on the remedies for these violations. On October 26, 2009, I temporarily restrained OFAC from proceeding with designation of KindHearts as an SDGT pending my determination of the appropriate remedies in this case. KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner (KindHearts II), 676 F. Supp. 2d 649 (N.D. Ohio) (October 26 Order) [Doc. 106].

A couple of points are in order. First, a still appealable decision by the District Court in Northern District Ohio (NDO) is not particularly binding precedent on the DC District and Circuit, which is where the Pakistani Taliban designation would be made. Secondly, as noted in the main post, the Pakistani Taliban designation consideration appears to be one of “Foreign Terrorist Organization” by the State Department as opposed to the SDGT designation by Treasury which was the subject of the NDO decision.

That said, KindHearts is extremely important and almost unquestionably would have factored very heavily into the consideration, and speed of consideration, of whether or not to designate the Pakistani Taliban. It does not however, explain the uneven and inconsistent designation strategy under the Bush/Cheney regime, some of which are still being defended now (including al-Haramain). For the record, I do sure wish I had known about the KindHearts case before; it is a significant case with sound Constitutional reasoning and absolutely affects the subject of my original post.

I’ve done two posts on John Rizzo’s recent address to ABA’s Standing Committee on Law and National Security. But I wanted to call attention to a few more things he said in his talk.

Slightly more than halfway through his talk, he talks about how DOD gets to conduct what seem to him to be covert actions in the field of cyberwarfare without the Congressional oversight that CIA would have. (Note, this is my transcription and he’s a big mumbler, so I’m not sure of the accuracy of this transcription.)

I did want to mention–cause I find this interesting–cyberwarfare, on the issue of cyberwarfare. Again, increasing discussion there clearly is an active arena, will continue to be active. For us lawyers, certainly for the lawyers in the intelligence community, I’ve always found fascinating and personally I think it’s a key to understanding many of the legal and political complexities of so-called cyberlaw and cyberwarfare is the division between Title 10, Title 10 operations and Title 50 operations. Title 10 operations of course being undertaken by the Pentagon pursuant to its war-making authority, Title 50 operations being covert action operations conducted by CIA.

Why is that important and fascinating? Because, as many of you know being practitioners, how these cyber-operations are described will dictate how they are reviewed and approved in the executive branch, and how they will be reported to Congress, and how Congress will oversee these activities. When I say, “these activities,” I’m talking about offensive operations–computer network attacks.

This issue, this discussion, has been going on inside the executive branch for many years, actually. I mean I remember serious discussions during the Clinton Administration. So, again, this is not a post-9/11 phenomenon. Now, I’m speaking her from a CIA perspective, but I’ve always been envious of my colleagues at the Department of Defense because under the rubrik of Title 10, this rubrik of “preparing the battlefield.” They have always been able to operate with a–to my mind [?] a much greater degree of discretion and autonomy than we lawyers at CIA have been, have had to operate under, because of the various restrictions and requirements of Title 50 operations. Covert actions require Presidential Findings, fairly explicit reports to the Intelligence Oversight Committees. We have a very, our Intelligence Committees are … rigorous, rigorous and thorough in their review. I’ve never gotten the impression that the Pentagon, the military, DOD is subject to the same degree of scrutiny for their information warfare operations as CIA. I’m actually very envious of the flexibility they’ve had, but it’s critical–I mean I guess I could say interesting but critical how–I mean if there were operations that CIA was doing, they would be called covert actions, there’s no getting around that. To the extent I’ve ever understood what DOD does in this arena, they certainly sound like covert actions to me but given that I’ve had more than my hands full over the years trying to keep track of what CIA’s doing at any given time, I’ve never ventured deeply into that area. But I think it’s fascinating.

This is precisely the same asymmetry that Seymour Hersh has reported with regards to paramilitary operations.

Under the Bush Administration’s interpretation of the law, clandestine military activities, unlike covert C.I.A. operations, do not need to be depicted in a Finding, because the President has a constitutional right to command combat forces in the field without congressional interference.

[snip]

“This is a big deal,” the person familiar with the Finding said. “The C.I.A. needed the Finding to do its traditional stuff, but the Finding does not apply to JSOC. The President signed an Executive Order after September 11th giving the Pentagon license to do things that it had never been able to do before without notifying Congress. The claim was that the military was ‘preparing the battle space,’ and by using that term they were able to circumvent congressional oversight. Everything is justified in terms of fighting the global war on terror.” He added, “The Administration has been fuzzing the lines; there used to be a shade of gray”—between operations that had to be briefed to the senior congressional leadership and those which did not—“but now it’s a shade of mush.”

But it extends, according to John Rizzo, to the field of cyberwarfare. And while I can understand why Rizzo would like to play in cyberworld with no congressional oversight the way DOD can, I take the opposite conclusion that he does. That is, that DOD is engaged in stuff online–offensive attacks–that should be subject to congressional oversight (and written acknowledgment from the President).

But, at least according to John Rizzo, it’s not.

One of the highlights of the first of several Deepwater Horizon hearings in Congress this week came when Maria Cantwell tried to get BP American President Lamar McKay to commit to what BP would pay as “legitimate claims.” She asked about:

• Long term and short term harms to the fishing industry
• Business loss to tourism
• State and local governments for lost tax revenue
• Long term damages to LA fishing industry and it’s brand
• Additional troubles with fisheries
• Shipping impacts
• Impacts on further drilling operations
• Impacts to the pristine beaches in this area

He balked about the tax revenues, the brand of LA’s fishing industry, and further drilling operations.

In any case, he certainly didn’t commit to what he meant by “legitimate claims.”

This is the kind of lede you’d expect from a dirty hippie blogger, not from a septuagenarian TradMed journalist.

Who other than the acerbic John A. Rizzo, who served a long tenure as the CIA’s acting general counsel, would use his first talk after retiring from government to lay out a series of ironies that illustrate the frustration felt by older agency professionals, given the treatment of their activities during the past decade?

Rather than focusing on the details John Rizzo revealed that slightly advanced the story of the investigation into the John Adams Project, Pincus chooses to uncritically air Rizzo’s complaints about torture. Pincus doesn’t even challenge Rizzo’s claim that there is an irony to the way CIA has been treated.

Which is a pity, because Rizzo made some downright absurd comments. Take Rizzo’s complaint about the shock over the number of times Abu Zubaydah and Khalid Sheikh Mohammed were waterboarded.

He pointed out that while Zayn al-Abidin Muhammed Hussein, better known as Abu Zubaida, and Khalid Sheik Mohammed were undergoing waterboarding in CIA detention, the United States was conducting lethal operations against terrorists. “There was never, ever, as far as I could discern, any debate, discussion, questioning on moral or legal grounds about the efficacy of the United States targeting and killing terrorists,” he said.

“A lot of attention, a lot of criticism was given about the number of waterboarding sessions they [Abu Zubaida and Mohammed] had,” Rizzo said, “but I don’t believe there would have been nearly as much similar discussion about the number of bullets that would have been pumped into them if they had been killed rather than captured.”

The shock over the revelation that Abu Zubaydah was waterboarded 83 times and Khalid Sheikh Mohammed 183 times in a month doesn’t just stem from the claims John Yoo made–based on representations from Rizzo–that waterboarding was not torture. The shock also stems from the divergence between CIA-sponsored disinformation that waterboarding worked immediately, after just one use, and the reality that CIA used it over and over and over. Which in turn leads to questions of efficacy–and to the inaptness of Rizzo’s comparison. You pump someone full of bullets and each bullet adds just one more piece of certainty that the objective–the neutralization or death of the target–is accomplished. But when you waterboard someone an 83rd time, does it advance the objective–purportedly collecting reliable information–in the least? In the case of Abu Zubaydah, whose 83 waterboardings seem to have yielded in just 10 pieces of useful intelligence, the answer appears to be no. Indeed, in a memo addressed to and based on information from John Rizzo, John Yoo wrote,

Moreover, you have also orally informed us that although some of these techniques may be used with more than once, that repetition will not be substantial because the techniques generally lose their effectiveness after several repetitions.

[snip]

You have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition.

There’s no irony here! John Rizzo (and the lawyers from the Counterterrrorism Center who contributed to this memo) either lied to John Yoo about the number of times waterboarding would be used, or CIA itself failed to meet the terms of this memo. And poor John Rizzo thinks the public is wrong to be shocked at the result.

All of which details might be appropriate to mention in an article about Rizzo’s self-indulgent claims of irony. But they don’t appear in this article.

In a ruling that anticipates how the government will ignore torture as it tries alleged detainees in civilian court, Judge Lewis Kaplan rejected Ahmed Khalfan Ghailani’s efforts to get his indictment for contributing to the 1998 embassy bombings dismissed because he was tortured while in US custody.

As Kaplan argues, Ghailani could only use the Due Process Clause to dismiss evidence collected as a result of his torture.

The Due Process Clause, so far as is relevant here, protects against deprivations of liberty absent due process of law. The deprivation of liberty that Ghailani claims may occur if this case goes forward is his imprisonment in the event of conviction. In seeking dismissal of the indictment, however, he does not deny that he is being afforded every protection guaranteed to all in the defense of criminal prosecutions. Rather, Ghailani in effect argues that the case should be dismissed to punish the government for its mistreatment of him before he was presented in this Court to face the pending indictment.

For a due process violation to result in consequences adverse to the government in a criminal case – for example, the suppression of evidence or the dismissal of an indictment – there must be a causal connection between the violation and the deprivation of the defendant’s life or liberty threatened by the prosecution. That is to say, relief against the government in a criminal case is appropriate if, and only if, a conviction otherwise would be a product of the government misconduct that violated the Due Process Clause. For only in such circumstances may it be said that the deprivation of life or liberty that follows from a criminal conviction flows from the denial of due process. This conclusion thus rests directly on the text of the Due Process Clause itself.

But since the government is trying Ghailani for his involvement in the 1998 bombings, rather than for any actions about which they asked him under torture, the alleged torture is irrelevant to this indictment (remember, Ghailani was picked up in 2004 in the pre-election scare about terror). So long as the government relies only on evidence untainted by the torture, Kaplan argues, then it is irrelevant to this trial.

Of course, the government did hedge, somewhat, about whether they were going to rely exclusively on untainted evidence.

The government has identified one possible exception: a percipient witness whose identity remains classified and whose testimony may constitute fruit derived from statements made by the defendant in response to interrogations while in CIA custody. The government maintains that there is no basis for suppressing this potential witness’s testimony, and the issue is sub judice before this Court.

But that’s not enough to get this indictment dismissed.

What’s perhaps most curious about the ruling is Kaplan’s claim–which he doesn’t elaborate–that Ghailani may have some remedies against his torturers.

If, as Ghailani claims, he was tortured in violation of the Due Process Clause, he may have remedies. For the reasons set forth above, however, those remedies do not include dismissal of the indictment.

The closest Kaplan comes to explaining what Ghailani’s remedies might be is to discuss, abstractly in the context of precedent, what such remedies might be, leaving aside the question of whether someone tortured under Cheney’s torture program actually has access to those remedies.

“[A defendant] is not himself a suppressible ‘fruit,’ and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct.”18 Rather, the proper remedy is money damages or criminal prosecution of the offending officers.19

Only, he doesn’t have access to those remedies, as the Jeppesen and Yoo suits make pretty clear.

I don’t know why those whiners are so worried about trying Khalid Sheikh Mohammed in civilian court.