About those Missing OLC Opinions

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(Note: I’m scheduled to be on Mark Levine’s Inside Scoop today at 5PM ET. You can listen in here.)

Okay okay already. Here’s your damn missing OLC opinion post.

As a number of you have pointed out, ProPublica did a very cool database of all the OLC opinions on executive power, torture, and warrantless wiretapping that we know of. The database collects in one place, in sortable form, the opinions that track Bush’s abuse of power. 

I had done a timeline mapping the warrantless wiretap opinions to known events associated with Bush’s illegal program (though it’s not sortable like the ProPublica one). And don’t forget that John Conyers gave us a very detailed description of that opinion eliminating the 4th Amendment.

The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

Mr. Yoo and Mr. Delahunty concluded that both Article II of the Constitution and the 9/11 use of force resolution would authorize these types of domestic military operations (even though Congress had expressly rejected language proposed by the Administration for the AUMF that would have authorized domestic military operations).292 The memorandum also contains extended discussion of a hypothetical example which posits that a domestic military commander has received information, not rising to the level of probable cause, suggesting that a terrorist has hidden inside an apartment building and may possess weapons of mass destruction. According to the memorandum, not only does the Constitution permit the commander to seize the building, detain everyone found inside, and then interrogate them – all without obtaining any sort of warrant – but information gathered by military commanders in this way could used for criminal prosecution purposes as long as the primary reason for the seizure was the military fight against terrorism and not law enforcement. Read more →

Did Holder Promise No Prosecutions?

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As I posted, both Sheldon Whitehouse and Pat Leahy suggest that–even though John Cornyn and others made an inappropriate demand that Holder promise not to prosecute any Bushies–Holder did not make that promise.

But right as that came out, the Moonie Times came out with a Kit Bond interview claiming that Holder had made such promises. (h/t Wigwam)

President Obama’s choice to run the Justice Department has assured senior Republican senators that he won’t prosecute intelligence officers or political appointees who were involved in the Bush administration’s policy of "enhanced interrogations."

Sen. Christopher "Kit" Bond, a Republican from Missouri and the vice chairman of the Senate Select Committee on Intelligence, said in an interview with The Washington Times that he will support Eric H. Holder Jr.’s nomination for Attorney General because Mr. Holder assured him privately that Mr. Obama’s Justice Department will not prosecute former Bush officials involved in the interrogations program.

Mr. Holder’s promise apparently was key to moving his nomination forward. Today, the Senate Judiciary Committee voted 17-2 to favorably recommend Holder for the post. He is likely to be confirmed by the Senate soon.

Sen. Bond also said that Mr. Holder told him in a private meeting Tuesday that he will not strip the telecommunications companies that cooperated with the National Security Agency after the Sept. 11, 2001, attacks of retroactive legal immunity from civil lawsuits–removing another potential sticking point among GOP senators.

In the interview Wednesday, Mr. Bond said, "I made it clear that trying to prosecute political leaders would generate a political firestorm the Obama administration doesn’t need."[my empahsis]

Mind you, I’m not holding my breath for any big prosecutions from the Obama Administration, given his repeated calls to move forward.

That said, I suspect Kit Bond is spinning Holder’s clear statements with regards to those who implemented Bush’s policies into statements about those who crafted Bush’s policies.

Note how Holder answered this question in written RFQs:

Mr. Holder indicated that he would not prosecute any intelligence officers who participated in the interrogation program and who had followed Justice Department guidance.

Prosecutorial and investigative judgments must depend on the facts and no one is above the law, Mr. Holder wrote. Read more →

Scottish Haggis Lives Up to the Name, Backs Holder

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Say, are you the least bit surprised that Arlen "Scottish Haggis" Specter has lived up to his name? As in "offal" and "sheep"? Once again? (h/t BSL)

 After making a huge fuss questioning the independence of Eric Holder, Specter just caved and said he’ll support the attorney general nominee.

"I can say with some confidence that there won’t be a successful filibuster," Specter told reporters at a press conference gathered to share his thoughts on Holder in advance of tomorrow’s Judiciary panel vote on the nominee.

Specter added that the strong recommendations Holder received from former FBI director Louis Freeh and former DoJ No. 2 James Comey were influential in swaying his vote.

"At no time did I challenge Mr. Holder’s integrity," the Pennsylvania senator concluded. (But he sure came close, according to Holder himself.) "It was a question of judgment."

Speaking of judgment, Holder also has resolved — to Specter’s satisfaction, at least — the GOP demand that he promise not to prosecute Bush administration intelligence officials who engaged in brutal interrogations at Guantanamo Bay and elsewhere.

"The gist of" Holder’s stance on the issue, Specter told me, "is that if you have an authoritative legal opinion, that’s a defense in terms of mens rea, of intent. That’s a broad generalization. I don’t think you can go any further than that until you examine the specific facts of a case."]

So the kabuki is off, as of tomorrow.

Well, that was nice. NOW can we get back to the business of governing again, little GOP boys?

What Jane Mayer Tells Us about Warrantless Wiretapping

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Jane Mayer’s excellent piece on Obama’s Executive Orders banning torture is about just that–the end of the torture regime. (Incidentally, kudos to Greg Craig, whom I beat up yesterday, for giving his first interview to Mayer.) But it offers some useful insight on a debate we’ve been having over the last couple of days–whether or not Obama could have intervened in the al-Haramain trial (and other pending litigation on warrantless wiretapping) in the same way he intervened in the pending habeas petitions.

First, off, Mayer confirms a point I made–that Obama was not about to take on the most politically charged legal decisions in his first day in office.

Moreover, Craig noted in his first White House interview that the reforms were not finished yet and that Obama had deliberately postponed several of the hardest legal questions. Craig said that, as he talked with the president before the signing ceremony, Obama was “very clear in his own mind about what he wanted to accomplish, and what he wanted to leave open for further consultation with experts.”

Obviously, one of those questions is how to approach legal consequences for those who ordered torture–or warrantless wiretapping. The EOs Obama signed last week don’t commit him to an approach on that score. Furthermore, he seems inclined to insulate himself from such decisions by putting them in the hands of Eric Holder, to make it a prosecutorial decision. Though Holder has intimated he’d hold both the architects of our torture regime and of our warrantless wiretapping responsible (lucky for him, he could do it all in a giant 2-for-1 deal), I’m not holding my breath on that score. But we won’t know what he’ll do until he becomes Attorney General.

That said, Mayer makes it clear just how much lobbying has gone into Obama’s evolving policy on torture.  She describes a meeting that must have taken place in December 2007 or January 2008 with a bunch of officers–including four star Generals–at which the officers lobbied Obama to end our torture regime. That high-level lobbying continued up until last month. Mayer specifically describes the role of retired Marine General Chuck Krulak who promised to "fly cover" for the Obama Administration after they pushed this through.

Who, might I ask, is doing similar lobbying to restore civil liberties for Americans?

Oh, I know there has been similar lobbying–on the part of civil liberties groups, high profile individuals, and DFH bloggers like you and me. Read more →

Carl Levin on Torture Investigation

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As I reported earlier, when Senator Reid spoke at Progressive Media Summit, he stated that he supported investigations of BushCo wrong-doing, even stating he was increasing the budget for such investigations. He specifically mentioned that Senator Levin would be doing some such investigation.

Here’s Senator Levin’s response. It sounds like Levin’s investigation is primarily his SASC investigation on torture. 

In good news, though, Levin’s committee should be releasing the full report in short order.

President Obama Officially Halts GITMO Show Trials

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h/t Amnesty International

President Obama has ordered an abrupt halt in the Gitmo Show Trials. From Peter Finn at the Washington Post:

In one of its first actions, the Obama administration instructed military prosecutors late Tuesday to seek a 120-day suspension of legal proceedings involving detainees at the naval base at Guantanamo Bay, Cuba — a clear break with the approach of the outgoing Bush administration.

The instruction came in a motion filed late Tuesday with a military court handling the case of five defendants accused of organizing the Sept. 11, 2001, attacks on the United States. The motion called for "a continuance of the proceedings" until May 20 so that "the newly inaugurated president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

In the legal field, this is known as an act taken "in the interests of justice". An incredibly welcome move by an administration literally only hours into its initial term. You have to hand it to President Obama, Guantanamo is a sensitive topic, especially with the neocon screechers, yet he proved the courage of his convictions and acted immediately upon being sworn in.

It appears that the action was foreshadowed at Camp Delta, as Carol Rosenberg of McClatchy already had reported, even before Obama was sworn in, that the trial of Omar Khadr had been put on hold:

A military judge on Tuesday postponed next week’s trial of Canadian captive Omar Khadr, easing pressure on the new occupant of the White House to make a swift decision on military commissions.
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Until Tuesday, the Khadr case was shaping up to be an early test of Obama’s pledge to close the prison camps.
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But Parrish’s indefinite delay — he set no new trial date — also derailed Pentagon plans to airlift a jury panel of U.S. military officers to this remote base this weekend.

The stay of all proceedings at Guantanamo for at least 120 days is, as stated, wonderful news; however, the better question is what it portends for the future disposition of the legal cases of the detainees including Khalid Sheik Mohammed and his co-defendants accused of organizing the 9/11 attacks.

Notably, the defense teams do not appear quite as thrilled as one might would expect by the move, citing fears that the government is simply trying to clean up the tribunal process minimally in order to continue on. Lt. Cmdr. William Kuebler, who represents Read more →

Coach Bush is 3-23 In Real Courts On Gitmo Show Trials; Katyal, The Hero Of Hamdan, To Join Obama Administration

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If your local football coach was 3 wins and 23 losses for the season, you could rest assured of two things; one, you are a Detroit Lions fan and, two, the coach is getting fired. Well, there was an interesting little article that was published in today’s New York Times, and the upshot is that 3 and 23 is exactly what the Bush/Cheney regime’s record is when their Guantanamo Detainee cases see the sunshine of a real court. Clearly we have pretty much been endlessly detaining a lot of innocuous people on unsubstantiated evidence.

Describing the release last weekend of Haji Bismullah, an Afghan detainee held at Guantánamo Bay for nearly six years, the Times notes:

The decision was part of a pattern that has emerged in the closing chapter of the administration. In the last three months, at least 24 detainees have been declared improperly held by courts or a tribunal — or nearly 10 percent of the population at the detention camp in Guantánamo Bay, Cuba, where about 245 men remain.
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While Mr. Bismullah’s case was decided by a military panel, the rulings for the other 23 detainees occurred in habeas corpus hearings in federal court. Since a Supreme Court decision in June gave detainees the right to have their detentions reviewed by federal judges in habeas cases, the government has won only three of them.

Get that?? 3 and 23. Not. Real. Good. Certainly puts the lie to Cheney and Bush’s promises that they were holding only the "worst of the worst" after all these years doesn’t it?

The cases provide a snapshot of the intelligence collected by the government on the suspects and suggest that there was little credible evidence behind the decision to declare some of the men enemy combatants and to hold them indefinitely.
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“The government’s failure in case after case after case to be able to prove its case calls into question everybody who is there,” said Susan Baker Manning, a lawyer for 17 Uighur detainees from western China who were ordered released by a federal judge in October. The Justice Department has appealed that order from a federal district judge, Ricardo M. Urbina, and the men are still at Guantánamo.

Well, I guess, as shocking as it is, this is not exactly breaking news anymore. The brittle patina of legitimacy and credibility, to the extent there ever was any, began to crack with the first major Read more →

Obama, The Crawford Torture Admission & The Army Field Manual Lie

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dbamericasafe

In an earlier post I discussed the startling direct admission that the United States tortures terror detainees made public in last Wednesday’s blockbuster Bob Woodward piece in the Washington Post. As the Bush Administration’s hand picked convening authority for the military tribunals, otherwise known as the "Gitmo Show Trials", Susan Crawford’s admission carries the binding mark of credibility.

In this post, I want to explain the troublesome ramifications Crawford’s admission carries for the provisions in the Army Field Manual regarding the treatment and interrogation of detainees. And the Army Field Manual is a singularly important frame of reference because President-Elect Barack Obama famously staked his claim to being a torture reformer during the election by promising to restrict US detainee interrogation techniques to those contained in the Army Field Manual. President-Elect Obama is holding true to his word.

The proposal Obama is considering would require all CIA interrogators to follow conduct outlined in the U.S. Army Field Manual, the officials said.
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However, Obama’s changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said.

This is where Susan Crawford’s stark admission comes into play. As Crawford admits, most all of the techniques used on al-Qahtani were actually permissible, but the layering of techniques compounded them into unmistakable torture.

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani’s health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

Crawford has exposed to bright sunlight the lie that is Barack Obama’s, and other politicians’, simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions. Read more →

The US Torture Regime – Where Is The Swift Justice?

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Earlier, Marcy and Spencer wrote about the somewhat startling admission today by Susan Crawford that the United States tortured Mohammed al-Qahtani. From Woodward and the Washington Post:

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that’s why I did not refer the case" for prosecution.

The entire article is worth a read just so that the bare facts of what the United States does in your name can set in. But the real thing that strikes me about Crawford’s admission is the unequivocal starkness of it. "We tortured". "Met the legal definition of torture".

Well okay then. What more could we ask for? Maybe that the statement was made by a Bush Administration official, in a position of authority, someone that actually speaks for and might could bind the government to the admission. Well, as convening authority for the military commissions, Susan Crawford darn well ought to suffice for that.

Sounds like what we have here is what the legal profession, and specifically the criminal justice portion thereof, calls an "admission against interest".

An admission against interest is an exception to the hearsay rule which allows a person to testify to a stament of another that reveals something incriminating, embarassing, or otherwise damaging to the maker of the statement. It is allowed into evidence on the theory that the lack of incentive to make a damaging statement is an indication of the statement’s reliability.

In criminal law, it is a statement by the defendant which acknowledges the existence or truth of some fact necessary to be proven to establish the guilt of the defendant or which tends to show guilt of the defendant or is evidence of some material fact, but not amounting to a confession.

Tonight, on MSNBC’s Countdown, former Navy JAG attorney Charles Swift laid out the background and implications of what our country has done and become (Attached are both the portion with Charlie Swift as well as a followup portion). What we have done is not good. It is not right. And it is not justified. It is a war crime under 18 USC § 2441.

For her next trick, perhaps Susan Crawford can tell us when the war crime prosecutions will be starting.

What about Abu Zubaydah?

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While I’m glad that Susan Crawford has acknowledged publicly what we all know–that Mohammed al-Qahtani was tortured (see Spencer’s take here)–I’m just as interested in the questions that "crack reporter" Bob Woodward didn’t ask.

Such as, "Is that the same reason Abu Zubaydah was not charged along with the other 9/11 plotters?"

The answer to that question might raise all sorts of uncomfortable answers, though. After all, Qahtani was not in the same category as the other 9/11 plotters, in either the treatment he received (since it came at Gitmo rather than in black sites overseas, and came while under DOD custody rather than CIA custody), or in his actions (that is, he was stopped short of participating in 9/11, if that was indeed his intent). 

But Abu Zubaydah’s treatment resembles Khalid Sheikh Mohammed’s: while in CIA custody at a black site, he was waterboarded, not just once, but a bunch of times.

So if you admitted that Abu Zubaydah had been tortured–and therefore could not be tried–then it would raise questions about why KSM can be charged.

And if those questions were asked, you might have to differentiate between KSM and Zubaydah. KSM–as was made clear in his appearance in the Gitmo show trials–still has his wits about him. Zubdaydah, from all reports, does not.

Or, just as importantly, KSM will happily admit to having done the things we accuse him of. But Zubaydah appears to have been over-sold as the mastermind of the attacks. In fact, if you admitted that Abu Zubaydah admitted to stuff he didn’t really do after having been broken through torture, then you’d have the beginning of the pattern–with Qahtani and Zubaydah–proving that torture doesn’t work.

I’m glad Susan Crawford has finally admitted that we tortured Qahtani and because of that he can’t be charged. But will she have the courage (and the clearance) to admit that about Abu Zubaydah, too?

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