I just found an interesting article by Walter Pincus tucked away in the lower half of the Washington Post website. It contains no new or breaking news, but is an interesting description of just how far the government has run amok in their over-classification and demand to control information flow to the American people and the world.

Abu Zubaida’s writings are being used against him but being withheld from the public. For example, within days of the Sept. 11, 2001, attacks, according to a summary of his diary entry read aloud at his military tribunal hearing on March 27, 2007, the Palestinian detainee wrote that he was buying and storing weapons as part of a plan that Osama bin Laden devised in expectation of U.S. military action.

At the tribunal hearing, which was designed to inform Abu Zubaida of the charges against him, a summary was read of an entry from early 2002 in which he wrote that he would wage war against the United States, using explosive attacks, attacking gas stations and fuel trucks.

In all, Abu Zubaida has nine handwritten volumes of diaries. Six of them, totaling about 1,500 pages, were written before he was captured, and three were composed after his capture. So far, the government has kept all nine volumes sealed, though they are apparently considered unclassified. Even the government’s court motion on their status has remained sealed.

Marcy discussed the initial rumblings of this back in May when Abu Zubaida’s attorneys first raised the matter. It was at that point the government admitted it could not or would not produce key volumes of Abu Zubaydah’s diaries in preparation for his Combat Status Review Tribunal hearing. As Marcy noted:

The whole filing is worth reading for the Kafkaesque situation it describes, in which AZ, whose memory is described to be completely dysfunctional, has been refused the sole record he has of the events of which he has been accused, even though at least three of those accusations come directly from his diary.

Abu-Zubaida’s attorneys, because of the hyper degree of over-classification by the government, cannot fully discuss their case with their client, cannot discuss information learned from their client with their own investigators, experts and other potential witnesses, and cannot correct lies and misinformation the government has put in the public record about their client. This is a gross and intentional invasion of the attorney-client relationship and a denial of full and effective assistance of counsel.

How exactly has the government (yes, again it is both Bush and Obama, a oneness no longer shocking) effected this information and thought seizure?

While the executive order authorizing classification requires the information to be "owned," "produced," or "controlled" by the U.S. government, Abu Zubaida’s attorneys say the Justice Department has made a novel argument, that "to detain a prisoner creates a new, parallel authority to classify any and all utterances made by that prisoner for the period he is incarcerated." "Control" means government control over the agency that originates the information, not control over Abu Zubaida "by virtue of its power as a jailer," say his attorneys.

They acknowledge that the government controls access to their client and can limit his access to third parties but say that "authority to make information within a prisoner’s knowledge secret does not similarly follow."

The critical implication here is on the ability of Abu Zubaida (and presumably other detainees) to form a defense, participate in their defense, and obtain a fair hearing in any forum, whether it is a Habeas action, a CSRT, military tribunal or federal court prosecution. This restriction of information and, literally to some extent thought control, by the government completely destroys any meaningful interaction with his attorney and places a choke hold on the ability of the attorney to represent his client. This is antithetical to the edicts the United States, and its justice system, is founded upon. Courts across the United States daily dismiss cases, sometimes at the behest of the government such as in the Ted Stevens prosecution, because the government is not forthcoming with evidence they possess. What does it say when the government blocks the ability of a detainee to use information he possesses? Kafka indeed.

Basically the US Government is of the opinion that it owns and controls the thoughts of Abu Zubaida and, presumably, anyone else within its dominion and control. The government feels free to use Mr. Zubaida’s own information against him, yet will not let him use it in his defense. These are interesting times we live in.

UPDATE: I have just found the pleading just made public causing Pincus to write his article. It is a damning explanation of what is going on here and the deleterious effects upon Abu Zubaida, his attorneys and their ability to represent his interests under even nominal norms of justice. Here is the document as retrieved from PACER. It is a very instructive read. A couple of key passages:

The Government is plainly attempting to prevent or delay the public recognition of exculpatory evidence. Indeed, as Petitioner has previously argued in its pleadings, and as has also been redacted from the public, Petitioner’s post-arrest diaries, drawings, and other writings are a trove of exculpatory evidence.

and

According to information recently revealed by the Obama Administration, however, abu Zubaydah was not waterboarded once, but rather was waterboarded "at least 83 times during August 2002." Why shouldn’t Petitioner be permitted to respond? There is no valid reason. The real explanation behind the Government’s stance is merely the desire is to conceal violation of law, prevent embarrassment, and prevent or delay the release of information that does not require protection: for instance, if Petitioner were able to respond, he would inform the public that [redacted]…

How is Mr. Zubaida supposed to defend himself and how are his attorneys supposed to represent him under these conditions?

Tomorrow, Monday morning July 13, 2009, Judge Sonia Sotomayor begins the hearing portion of her confirmation process. So far, there has been the expected (sadly) partisan yammering on her nomination. Then, on Friday, there suddenly emerged something that might seem to take hold as the focus of the obligatory partisan sniping. Frank Ricci. It came from Dahlia Lithwick at Slate:

Ricci is invariably painted as a reluctant standard-bearer; a hardworking man driven to litigation only when his dreams of promotion were shattered by a system that persecutes white men. This is the narrative we will hear next week, but it somewhat oversimplifies Ricci’s actual employment story. For instance, it’s not precisely true, as this one account would have it, that Frank Ricci "never once [sought] special treatment for his dyslexia challenge." In point of fact, Ricci sued over it.

According to local newspapers, Ricci filed his first lawsuit against the city of New Haven in 1995, at the ripe old age of 20, for failing to hire him as a firefighter. That January, the Hartford Chronicle reported that Ricci sued, saying "he was not hired because he is dyslexic." The complaint in that suit, filed in federal court, alleged that the city’s failure to hire Ricci because of his dyslexia violated the Americans with Disabilities Act. Frank Ricci was one of 795 candidates interviewed for 40 jobs. According to his complaint, the reason he was not hired was that he disclosed his dyslexia in an interview. That case was settled in 1997 with a confidential settlement in which Ricci withdrew his lawsuit in exchange for a job with the fire department and $11,143 in attorney’s fees.

In 1998, Ricci was talking about filing lawsuits again, this time over a dispute with his new employer, Middletown’s South Fire District—which had hired him in August of 1997. According to a Hartford Courant report of Aug. 11, 1998, Ricci was dismissed from the Middletown fire department after only eight months. He promptly appealed his dismissal, claiming that fire officials had retaliated against him for conducting an investigation into the department’s response to a controversial fire. A story in the Hartford Courant dated Aug. 9, 1997, has Ricci vowing "to pursue this to the fullest extent of the law."

From that already tangential report by Lithwick, has come the claptrapping by those wanting to buck up the Sotomayor nomination, unfortunately by mostly liberal voices, that Ricci is now to be tarred and feathered as a "serial plaintiff".

I am in complete accord with Digby:

Ricci may very well have been justified in filing all those law suits against his employers for different reasons. Some people are just unlucky. And it has no bearing on the facts of the case in question, obviously, at least at the apellate level which is where Sotomayor heard it.

But let’s face facts. Mr Ricci is obviously not the tough, manly public servant who was cheated out of his rightful job by a the lazy "you know whos" that free ride on the system. It looks like this guy would be a much better poster boy for tort reform than reverse discrimination. Maybe somebody in wingnut central got the file mixed up.

As far as I can tell, both sides are full of manure here. The Republicans should not be parading Frank Ricci around as if he is significant to the question of the nomination; he is not, it is sheer exploitation, what he personally has to say here doesn’t mean squat. But by the same token, for Democrats to be bringing up the Ricci character assassination tact is contemptible. That history had nothing whatsoever to do with his case as it involves Sonia Sotomayor, nor the facts underlying it from my look at the decisions of both Sotomayor and subsequently the Supreme Court. Beating him up with it is bullying and asinine.

One prior lawsuit the City of New Haven settled by giving Ricci the relief he sought and the award of attorney fees does not, by any convoluted stretch of the imagination, make Mr. Ricci some sort of despicable "serial plaintiff". The fact he contemplated later actions and never proceeded to filing a complaint means nothing either. And it sure as heck is not contained in either the factual statement of Sonia Sotomayor’s decision, nor is it in the facts of the Supreme Court opinion.

By the same token, Mr. Ricci has nothing admirable nor tangible bearing on any argument the Republicans have against the nomination of Judge Sotomayor. The use of him as a front man is cowardly and cheap. It is a shameful and distracting dog and pony show by both sides. They should both knock it off and focus on the legitimate merits.

UPDATE: In light of many of the comments, I thought I should add a little discussion to clarify why Ricci is irrelevant to consideration of Sotomayor’s nomination.

For all those that have not actually read the Ricci decision, it is not that long; you should read it. First off, the case was not about Ricci individually in any regard; as the case was postured in front of Judge Sotomayor and her appellate panel, he was one of a co-equal group of 17 plaintiffs. Ricci’s name by whatever happenstance simply ended up being the first name in the caption. The case is NOT about Ricci, it is about a testing process for the promotion of firefighters in New Haven.

Secondly, Ricci himself was not complaining about the test, nor did he argue that his alleged dyslexia affected his performance on the test whatsoever; that fact and the first lawsuit he filed in the 1990s had nothing to do with the case in front of Sotomayor or the Supreme Court. Nothing could be further from the truth; in fact Ricci was adamant that the test was fair and he strongly thought ought to be determinative in the promotion debate. In fact that is why he was a member of the group of 17 plaintiffs.

In early June, a critical hearing was held in front of Judge Vaughn Walker in the al-Haramain warrantless wiretapping case. As a result of that hearing, Judge Walker entered an order commanding the attorney for plaintiffs al-Haramain et. al to file a motion for summary judgement. Hot off the press, the motion was filed minutes ago, and it is a stunning demonstration of just how disingenuous and two faced President Obama and his administration have been on the seminal issues of warrantless wiretapping, protection of Constitutional rights, transparency and accountability.

The first words in the main body of the motion are a stark reminder to President Obama and Attorney General Eric Holder of the very words and promises they have spoken in the past on the issue of illegal wiretapping:

“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”
President Barack Obama, December 20, 2007

“We owe the American people a reckoning.”
Attorney General Eric Holder, June 13, 2008

Apparently those words only were operative during the election, because that sure is not what Obama and Holder are saying and doing now. Instead, in pretty much as big of a Constitutional about face as is imaginable, Obama has decided to turn his back on his words and promises and throw his lot in with Bush and Cheney by asserting state secrets to protect the government from inquiry and accountability on its illegal and unconstitutional acts. It is not radical left wing bloggers saying that, it is distinguished US Senator Russell Feingold:

Of State Secrets, he said the Administration’s repeated assertion of State Secrets in litigation was reminiscent of the Bush Administration. He alluded to the cases before Vaughn Walker, and complained that the invocation of State Secrets would prevent Americans from finding out what really went on with the warrantless wiretap program

Senator Feingold is exactly right in his quote. The Ninth Circuit Court of Appeals has also slapped Obama hard on his continuation of the Bush/Cheney policy. And lest there be any illusion that Bush wiretapping program was legal, the following uncontroverted facts from the motion for summary judgment dispatch that notion:

On May 15, 2007, in testimony before the Senate Judiciary Committee, and on May 22, 2007, in written answers to follow-up questions by Senator Patrick Leahy, former Deputy Attorney General James B. Comey made the following statements demonstrating that defendants knew the warrantless surveillance program was unlawful yet continued it for several weeks in 2004 without the DOJ’s approval:

• As of early March of 2004, Comey and Attorney General John Ashcroft had
determined that the program was unlawful.

• During a meeting at the White House on March 9, 2004, two days before the DOJ’s periodic written certification of the program was due, Comey told Vice-President Dick Cheney and members of his and President Bush’s staffs that the DOJ had concluded that the program was unlawful and that the DOJ would not re-certify it.

• On March 10, 2004, while Ashcroft was hospitalized, two White House officials went to Ashcroft’s bedside and attempted to obtain the written certification from Ashcroft, but he refused.

• Despite the advice that the program as then constituted was unlawful, President Bush did not direct Comey or the FBI to discontinue or suspend any portion of the program.
(citations omitted)

The program was illegal from the start, and by all accounts remains so to this date under President Obama. But the most critical, and definitively illegal, period during the existence of the warrantless wiretapping program was following the infamous Ashcroft "Hospital Incident". As the "Statement of Relevant Facts" in the al-Haramain Motion for Summary Judgment lays out, this was precisely the period the al-Haramian attorneys were under illegal surveillance.

The foregoing is not just troubling because of the illegal acts committed upon plaintiff al-Haramain and its licensed attorneys, it is a damning comment on the credibility and honesty of President Barack Obama, Attorney General Eric Holder and the people they have brought on board to serve in our name.

The Bush Cheney surveillance program was legally defended in a "White Paper" issued by the Bush Department of Justice on January 29, 2006. It was a scurrilous and convoluted argument typical of the cravenly politicized Bush DOJ. Take a look at what some of the other officials serving in the Obama Administration used to say about the illegal Bush/Cheney surveillance program on page 21 of the motion for summary judgment. The really damning section, however, is contained in pages 26-28 of the motion:

Again, not even President Obama or members of his administration agree with the White Paper’s radically expansive theory of inherent presidential power. Principal Deputy Solicitor General Neal Katyal has said: “Claims of ‘inherent’ power . . . fall flat given the fact that FISA has been enacted.” Katyal & Caplan, supra at 1034. Solicitor General Elena Kagan has called the Bush administration’s legal opinions justifying the TSP “expedient and unsupported,” written by “lawyers who failed to respect the rule of law” and who do not understand that “the law and its precepts reign supreme, no matter how high and mighty the actor and no matter how urgent the problem.” Elena Kagan, Address to Cadets at the United States Military Academy at West Point (Oct. 17, 2007), available at http://judiciary.senate.gov/nominations/ElenaKagan/upload/Kagan-Question-13d-Part- 1.pdf. President Obama’s nominee for Assistant Attorney General for the DOJ’s Office of Legal Counsel, Dawn E. Johnsen, has written that the White Paper’s inherent power theory is “extreme and implausible.” Dawn E. Johnsen, What’s a President To Do? The Constitution In the Wake of Bush Administration Abuses, 88 Boston U. L. Rev. 395, 405 (2008). Johnsen adds: “The Bush administration’s ‘unitary executive’ and Commander-in-Chief theories, in my view, are clearly wrong and threaten both the constitutionally prescribed balance of powers and individual rights.”

In an amicus curiae brief filed in another TSP lawsuit, Associate Deputy Attorney General Donald B. Verrilli, Jr. (then co-chair of Jenner & Block’s appellate and Supreme Court practice) compellingly debunked the Bush administration’s inherent power theory, calling it “particularly dangerous because it comes at the expense of both Congress’s and the judiciary’s powers to defend the individual liberties of Americans.” Brief for Amici Curiae Center for National Security Studies and the Constitution Project, ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007), 2006 WL 4055623, Verrilli said that in the Steel Seizure Case “the Supreme Court established that Congress can, even during time of war, regulate the ‘inherent power’ of the President through duly enacted legislation. That is precisely what FISA does. In authorizing warrantless electronic surveillance in direct violation of FISA, the President is acting not only with power that is at its ‘lowest ebb,’ he is acting in violation of his constitutional duty to enforce the law as enacted by Congress,” Id. “Our Constitution was established to end – not enshrine – this kind of executive overreaching. . . . The NSA surveillance program upends the balance among the three
branches of government, and thereby threatens bedrock liberties the constitution and the Bill of Rights are designed to protect.” Id. at *14-15.

President Obama himself has acknowledged: “The Supreme Court has never held that the president has such [inherent] powers.” Charlie Savage, Barack Obama’s Q&A, BOSTON GLOBE, Dec. 20, 2007. President Obama expressly rejected the inherent power theory when he stated: “Warrantless surveillance unconstitutional.” Id. (some citations omitted)

The amicus brief filed by now Assistant Attorney General Donald Verrilli (who is a driving force behind Obama’s legal positions on wiretapping in general and the consolidated cases in front of Judge Vaughn Walker in particular) is extremely telling. It was filed in the Sixth Circuit appeal from the famous ACLU v. NSA case where Judge Anna Diggs Taylor found the Bush/Cheney program illegal and unconstitutional.

All in all, the motion for summary judgment filed by plaintiffs al-Haramain et. al is one fantastic read, a concise set of proof of the case for entry of judgment against the government, and a damning blow to the credibility and honesty of Barack Obama, Eric Holder and other key members of the Obama Administration. Their actions are directly contrary to what they promised the nation when seeking office, and are not the standard of conduct the United States was founded upon nor deserves.

graphic by solophisticwhimseys

Eric Holder can’t seem to do squat for transparency, privacy, accountability or a plethora of other ills carried over from the Bush/Cheney Administration, but he is concerned that we need more hate crime laws:

"Over the last several weeks, we have witnessed brazen acts of violence, committed in places that many would have considered unthinkable," Holder told the Washington Lawyers Committee for Civil Rights and Urban Affairs.

He cited separate attacks over a two-week period that killed a young soldier, an abortion provider and a guard at the U.S. Holocaust Memorial Museum.
…
In order to stop that violence, he said, Congress should past an updated version of hate crimes legislation, in order to more effectively prosecute those who commit violent attacks based on gender, disability, or sexual orientation.

Yeah, that bunk ought to really stop Tiller’s killer, the Arkansas recruiting center shooter and the von Brunns of the world from committing murders when that piddly old first degree murder capital offense with the death penalty couldn’t. Okay, I want to be completely honest, the District of Columbia does not have the death penalty, but it certainly has life in prison available for the offense of premeditated murder. Both Kansas and Arkansas, the locations of the other two heinous crimes, do indeed have the death penalty for such offenses. What exactly does Eric Holder think the "hate crimes" he is demagoguing about are going to do for deterrence that the death penalty or life in prison won’t?

I have a problem with "hate crime" laws. We already have laws for assault and battery, murder, intimidation etc. The same conduct, and level of conduct, should not have different laws and heightened penalties because it is targeted to a minority or other protected group. Why is the assault of a black worth more than an assault on on a white? Why is an assault on a gay man any more heinous than an assault on a straight? Why is one group of human beings entitled to more protection under the law than another? Yet, that is exactly what hate crime legislation does. This really flies in the face of the quintessential Constitutional and founding concepts of equal protection, fundamental fairness and all men being created equal.

The Supreme Court disagrees, but that is my take. And no matter what your view, I would argue that Eric Holder and the United States Department of Justice have far more important tasks to attend to right now, and they have been failing miserably on most.

By the way, Eric Holder is appearing before the Senate Judiciary Committee this morning at 10:00 am EST.

There was a significant new opinion released in the NDCA late Friday (h/t Lindy and Fatster) in the case of Jose Padilla v. John Yoo. The decision is devastating to Yoo and to the thought by the Obama Administration that the American legal system is going to blithely allow them to simply "move forward" and leave behind, and out of sight, the malevolence, malfeasance and depravity of senior Bush/Cheney legal officials in relation to their torture regime.

Yoo might be having a bad day when a Federal judge starts his analysis of your immunity claim by citing Alexander Hamilton from the Federalist Papers. And that is exactly what Judge Jeffrey S. White of NDCA District Court has done:

[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free. [The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).]

First, a little background is in order. The plaintiff is Jose Padilla, an American citizen arrested with great fanfare on May 8, 2002, on a material witness warrant, by the Bush Administration as being a "dirty bomb" suspect. As the "material witness" warrant was a sham, Bush (through Rumsfeld) quickly designated Padilla an "enemy combatant" and placed him in the custody of the Department of Defense, the military, and locked him up indefinitely in the US Naval brig in Charleston, South Carolina. Padilla was detained without being charged, was subjected to extreme isolation, including isolation from both counsel and from his family, and was interrogated under threat of torture, deportation and even death. He was placed in solitary confinement in a tiny cell in an otherwise empty wing of the military brig. Padilla alleges that he was “subjected to a systematic program of unlawful interrogation methods and conditions of confinement, which proximately and foreseeably caused him to suffer extreme isolation, sensory deprivation, severe physical pain, sleep deprivation, and profound disruption of his senses.

The defendant is the notorious John Yoo, Bush torture lawyer extraordinaire. Yoo, of course, is currently a law professor at the University of California Berkeley and was, at the times material to the complaint, Deputy Attorney General in the Office of Legal Counsel for the Bush/Cheney Administration. Padilla states, and the court accepted as fact, that Yoo:

…was “the de facto head of war-on-terrorism legal issues” and a “key member of a small, secretive, and highly-influential group of senior administration officials know as the ‘War Council.’” As such, Yoo admittedly “shaped government policy” in the “war on terrorism.” Padilla alleges that Yoo personally was involved in the decision to designate him as an enemy combatant and that Yoo lay the groundwork for the treatment of enemy combatants
under military detention.
…
Padilla also alleges that the policies Yoo drafted included “the decision to employ unlawfully harsh interrogation tactics” and “pressure techniques proposed by the CIA” against individuals designated as enemy combatants. Padilla further alleges that the policy of employing harsh interrogation tactics against enemy combatants “proximately and foreseeably led to the abuses suffered by Padilla.” (Citations omitted).

In a nutshell, Jose Padilla is suing Yoo for being the protagonist in writing legal cover that got Padilla detained indefinitely without due process and tortured to the point of mental insanity. John Yoo responded to Padilla’s complaint with the tried and true, and uncommonly successful, ploy of filing a Rule 12(b)(6) Motion to Dismiss based upon qualified immunity. Taking a huge cue from his Chief Judge, Vaughn Walker, Judge Jeffrey White has taken the absurdity of the government (yes the DOJ is still representing Yoo) position apart at the seams and thrown it in their face. Judge White has ruled that all of Padilla’s claims, save one, may proceed forward. And he lays the wood to the Bush/Cheney torture regime and their depraved contortion of the law, and the Constitution, in the process.

It is an extremely well written opinion, and I highly recommend you read the whole thing if so inclined. The first item that struck me is how Judge White has sidestepped the recent Iqbal decision. Just as I though might be the case, Iqbal is shaping up to be nowhere near the problem many thought; instead, Federal judges like Jeff White and Vaughn Walker are affirmatively using it as authority to permit civil liberties cases by finding exactly the conditions necessary to satisfy Iqbal. When the trial court affirmatively complies with that process, and that is what was done here, and still finds the grounds for a valid cause of action, it is going to be very hard for an appellate court to undercut the decision.

Next, the court undertakes a detailed analysis of the criteria necessary for a valid Bivens claim and, wonder of wonders, finds Padilla’s claims sufficient. The discussion by White where he finds a valid Bivens claim is long, covering pages 12 through 28 of the opinion but, to put it mildly, is a work of art. Like Vaughn Walker in al-Haramain and Jewel et. al, Jeffrey White has taken the supposed strength of Yoo’s defense and narrowed it, defined it and filleted it open. And, as with the Iqbal portion, he has done so in a manner that is designed to withstand the rigors of appellate scrutiny. John Yoo ought to be very concerned about this.

In the third and last major section of the opinion (starting on page 29), Judge White specifically dissects Yoo’s bleating qualified immunity assertion.

Yoo also argues that he is entitled to qualified immunity on all claims. The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate any clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009).

The last part – "when they perform their duties reasonably" – is the key here. As you might guess, Mr. Padilla does not think that John Yoo performed his duties reasonably (neither do I). This has always been the threshold that the blithering idiot main stream media keeps spewing cannot be reached. Guess what, Judge White is a little more sanguine and thinks reasonable people could find that John Yoo was unreasonable. The court described the standard applicable to consideration:

A court should then address the question “whether, under that clearly established law, a reasonable [official] could have believed the conduct was lawful.” Id. This inquiry must be undertaken in the light of the specific context of the case. Saucier, 533 U.S. at 194. In deciding whether the plaintiff’s rights were clearly established, “[t]he proper inquiry focuses on whether ‘it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted’ … or whether the state of the law [at the time] gave ‘fair warning’ to the officials that their conduct was unconstitutional.” Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) (quoting Saucier, 533 U.S. at 202).

At this point, it should be noted that the court here is not finding that Yoo’s conduct violated Padilla’s rights as alleged in the amended complaint, only that Padilla has stated a sufficient cause of action that may be responded to and on which the case may proceed forward with discovery and determination on the merits. But the words and discussion in the decision leave little doubt that the court believes there are solid cognizable claims against Yoo:

Indeed the “requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Johnson, 588 F.2d at 743-44; see also Kwai, 373 F.3d at 966 (same).

Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct.

There you have it, governmental lawyers like Yoo, Bradbury, and Gonzales can be held liable for the foreseeable consequences of unprofessional work. This language must be doubly disturbing to Yoo et. al coming right before the imminent release of the reportedly scathing OPR Report.

Padilla alleges, among a whole page of detailed and descriptive allegations contained on page 33 of the opinion, that Yoo:

intended or was deliberately indifferent to the fact that Mr. Padilla would be subjected to the illegal policies [Yoo] set in motion and to the substantial risk that Mr. Padilla would suffer harm as a result. [Yoo] personally recommended Mr. Padilla’s unlawful military detention as a suspected enemy combatant and then wrote opinions to justify the use of unlawful interrogation methods against persons suspected of being enemy combatants. It was foreseeable that the illegal interrogation policies would be applied to Mr. Padilla, who was under the effective control of the U.S. Southern Command – the same military authority that controlled Guantanamo – and was one of only two suspected enemy combatants held at the Brig.

Judge White held:

In light of these allegations, the Court finds Padilla has alleged sufficient facts to satisfy the requirement that Yoo set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.

Nice, tight and sweet words and, again, devastating to the interests of John Yoo and similarly situated torture attorneys. Oh, and one other thing, Judge White eviscerated the inane argument that because Padilla was not convicted of anything at the time, he was not entitled to Eighth Amendment protections against cruel and unusual punishment. This argument, Scalia’s rambling to Lesley Stahl notwithstanding, has been flat out silly from the start, and many of the commenters here have pointed out the obvious arguments against it for some time now. That said, it is good to see it dispatched in writing by a Federal judge:

Yoo contends that because Padilla was not convicted of a criminal offense at the time of his military detention, the Eighth Amendment prohibition against cruel and unusual punishment does not apply to him. However, “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982). “[C]onstitutional questions regarding the conditions and circumstances of [the] confinement [of detained persons not convicted of a crime] are properly addressed under the due process clause of the Fourteenth Amendment, rather than the Eighth Amendment’s protection against cruel and unusual punishment.” City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983). However, “[i]n light of the Supreme Court’s observation that the due process rights of pretrial detainees are ‘at least as great as the Eighth Amendment protections available to a convicted prisoner,’ we have recognized that, even though the pretrial detainees’ rights arise under the Due Process Clause, the guarantees of the Eighth Amendment provide a minimum standard of care for determining their rights.” Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003) (internal citations omitted).

Exactly right; thank you Judge White. Now there was one minor claim by Padilla that did not survive White’s scrutiny, and, under the factual circumstances, White is probably correct to bounce it. That claim was that Yoo had violated Padilla’s Fifth Amendment right against self incrimination. White reasoned that because there is no allegation in the complaint that Padilla was ever made to be a witness against himself or that his statements were admitted as testimony against him in his criminal case, he did not state a claim for violation of the Self-Incrimination Clause of the Fifth Amendment. Again, a minor claim in the scope of the complaint and an arguably correct denial of it.

One last thought. It appears to me, whether consciously or unconsciously, Judge White has fashioned his opinion with a very determined eye to having it stand up on appeal, and specifically in the Supreme court. From the outset of his discussion, White framed it in terms of the auspices of Hamdi v. Ashcroft, 504 US 507 (2004). Hamdi was one of the very first opinions from The Supremes reeling in the unitary executive acting under Article II and the AUMF. The really notable thing about Hamdi, however, is the separate opinion authored by Nino Scalia berating the Bush/Cheney detention and treatment of American citizens in the war on terror, naming Padilla expressly.

Scalia, relying heavily on Ex parte Milligan, 4 Wall. 2, 128—129 (1866) said:

In my view this seeks to revise Milligan rather than describe it. Milligan had involved (among other issues) two separate questions: (1) whether the military trial of Milligan was justified by the laws of war, and if not (2) whether the President’s suspension of the writ, pursuant to congressional authorization, prevented the issuance of habeas corpus. The Court’s categorical language about the law of war’s inapplicability to citizens where the courts are open (with no exception mentioned for citizens who were prisoners of war) was contained in its discussion of the first point. See 4 Wall., at 121. The factors pertaining to whether Milligan could reasonably be considered a belligerent and prisoner of war, while mentioned earlier in the opinion, see id., at 118, were made relevant and brought to bear in the Court’s later discussion, see id., at 131, of whether Milligan came within the statutory provision that effectively made an exception to Congress’s authorized suspension of the writ for (as the Court described it) “all parties, not prisoners of war, resident in their respective jurisdictions, … who were citizens of states in which the administration of the laws in the Federal tribunals was unimpaired,” id., at 116. Milligan thus understood was in accord with the traditional law of habeas corpus I have described: Though treason often occurred in wartime, there was, absent provision for special treatment in a congressional
suspension of the writ, no exception to the right to trial by jury for citizens who could be called “belligerents” or
“prisoners of war.”

But even if Quirin gave a correct description of Milligan, or made an irrevocable revision of it, Quirin would still not justify denial of the writ here. In Quirin it was uncontested that the petitioners were members of enemy forces. They were “admitted enemy invaders,” 317 U.S., at 47 (emphasis added), and it was “undisputed” that they had landed in the United States in service of German forces, id., at 20. The specific holding of the Court was only that, “upon the conceded facts,” the petitioners were “plainly within [the] boundaries” of military jurisdiction, id., at 46 (emphasis added). But where those jurisdictional facts are not conceded–where the petitioner insists that he is not a belligerent–Quirin left the pre-existing law in place: Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release.
…
Several limitations give my views in this matter a relatively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla.

Everybody always assumes that Anthony Kennedy is the point of attack for success on these issues in the Supreme Court, and I do not disagree that he is a target. But I do not think he is the only one and, irrespective of his excited informal chatter with Lesley Stahl of 60 Minutes, I think, because of the Hamdi framing, and other intricacies, Antonin Scalia is square in the sights of Jeffrey White and his opinion in Padilla v. Yoo. Once again, a NDCA judge has set up a beautiful piece of work designed to not only survive review in the 9th Circuit (and I think it will), but also with the foresight to play in the Supremes. It is a beautiful thing.

All in all, it is a fantastic decision, once again the Federal judges in the 9th Circuit and NDCA come riding to rescue of the United States Constitution when our Federal government and legislature will not. It is a reminder of the simple beauty of the balance and separation of powers the Framers left us, and the importance that each branch passionately protect all citizens’ rights. Maybe someday Barack Obama will get his finger out of the political winds and stop protecting and excusing the gross malfeasance of the authoritarian state and protect the Constitution instead. Hope springs eternal.

graphic by allposters.co.uk

For all the blistering that I, and many others here, give to Obama for his continuation of the Bush/Cheney duplicity on wiretapping, privacy, torture and Executive Branch primacy issues, there are similarly a great many areas in which he is so many light years ahead of where we have been moribund for the last eight years that it is hard to remember we are still in the same galaxy. This morning’s speech in Cairo was one of those moments driving home the difference.

Spencer has posted the full text of the speech, and some good comment. Click the link and read the full text of the speech, it is well worth it.

It was a remarkable speech. This is a not just a speech that George Bush would not have given, but a speech he functionally could not have given; even with wordsmith speechwriters and handlers, he simply doesn’t have the intellectual depth, greater worldview or oratorical skill to have pulled off what Obama did. If there is a hope for peaceful and productive coexistence with the Islamic world, and peace in the middle east, this speech will be the first linchpin of Obama’s effort in that regard.

He was visionary:

No single speech can eradicate years of mistrust, nor can I answer in the time that I have all the complex questions that brought us to this point. But I am convinced that in order to move forward, we must say openly the things we hold in our hearts, and that too often are said only behind closed doors. There must be a sustained effort to listen to each other; to learn from each other; to respect one another; and to seek common ground. As the Holy Koran tells us, “Be conscious of God and speak always the truth.” That is what I will try to do – to speak the truth as best I can, humbled by the task before us, and firm in my belief that the interests we share as human beings are far more powerful than the forces that drive us apart.

He was challenging and proud of America:

But that same principle must apply to Muslim perceptions of America. Just as Muslims do not fit a crude stereotype, America is not the crude stereotype of a self-interested empire. The United States has been one of the greatest sources of progress that the world has ever known. We were born out of revolution against an empire. We were founded upon the ideal that all are created equal, and we have shed blood and struggled for centuries to give meaning to those words – within our borders, and around the world. We are shaped by every culture, drawn from every end of the Earth, and dedicated to a simple concept: E pluribus unum: "Out of many, one."

Humble, but unapologetic, as to our mistakes:

Let me also address the issue of Iraq. Unlike Afghanistan, Iraq was a war of choice that provoked strong differences in my country and around the world. Although I believe that the Iraqi people are ultimately better off without the tyranny of Saddam Hussein, I also believe that events in Iraq have reminded America of the need to use diplomacy and build international consensus to resolve our problems whenever possible. Indeed, we can recall the words of Thomas Jefferson, who said: “I hope that our wisdom will grow with our power, and teach us that the less we use our power the greater it will be.”

But most of all, he played both sides of the Israeli-Palestinian issue like a Stradivarius:

Around the world, the Jewish people were persecuted for centuries, and anti-Semitism in Europe culminated in an unprecedented Holocaust. Tomorrow, I will visit Buchenwald, which was part of a network of camps where Jews were enslaved, tortured, shot and gassed to death by the Third Reich. Six million Jews were killed – more than the entire Jewish population of Israel today. Denying that fact is baseless, ignorant, and hateful. Threatening Israel with destruction – or repeating vile stereotypes about Jews – is deeply wrong, and only serves to evoke in the minds of Israelis this most painful of memories while preventing the peace that the people of this region deserve.

On the other hand, it is also undeniable that the Palestinian people – Muslims and Christians – have suffered in pursuit of a homeland. For more than sixty years they have endured the pain of dislocation. Many wait in refugee camps in the West Bank, Gaza, and neighboring lands for a life of peace and security that they have never been able to lead. They endure the daily humiliations – large and small – that come with occupation. So let there be no doubt: the situation for the Palestinian people is intolerable. America will not turn our backs on the legitimate Palestinian aspiration for dignity, opportunity, and a state of their own.

Obama gave weight to both and tough love to each, you really have to read it all to get the effect, but the point is clear: Obama cares about the middle east and he is going to make a strong play on middle east peace, on a retooled and equilibrated plane. It is a legitimate effort, and contrary to all the initial fears, Obama and his Secretary of State are, so far, on exactly the same page and slowly but surely setting the stage.

Obama hit on several other topics in Cairo including peace in the middle east above and beyond the I-P situation, nuclear weapons in the world, the will of the world’s people and democracy, religious tolerance (noting specifically and candidly the pains of Muslim intolerance) and economic development and opportunity. Of particular significance were his words on women’s rights:

I know there is debate about this issue. I reject the view of some in the West that a woman who chooses to cover her hair is somehow less equal, but I do believe that a woman who is denied an education is denied equality. And it is no coincidence that countries where women are well-educated are far more likely to be prosperous.
…
Our daughters can contribute just as much to society as our sons, and our common prosperity will be advanced by allowing all humanity – men and women – to reach their full potential. I do not believe that women must make the same choices as men in order to be equal, and I respect those women who choose to live their lives in traditional roles. But it should be their choice. That is why the United States will partner with any Muslim-majority country to support expanded literacy for girls, and to help young women pursue employment through micro-financing that helps people live their dreams.

Considering the forum, and it coming hot on the heels of his time in Saudi Arabia, the support for women’s rights in Muslim lands are welcome and bold words. It is also something that both his Secretary of State and wife Michelle are focusing on too. It is a worthy effort.

Make no mistake, this was nothing more than a speech, and just one speech at that. But it was dignified, powerful and in a setting that conveyed the importance of the moment. We here in the US have quickly become used to seeing Obama and his soaring rhetoric, but this speech in Cairo will leave a mark and, from what I saw, a good one. And Obama, as is his style, is insuring mass saturation to the maximum market, especially through the modalities that will reach and affect youth. The early reports are that the response on these alternate modalities is huge; good, let the youth carry the message. The key is not how Obama’s speech and visit plays here at home, but what lasting imprint it makes there. Again, I think it is going to leave a good mark.

Barack Obama’s foreign policy surge, especially in the middle east, is still in its infancy, but it is a joy to watch so far. This truly is the hope we all sensed from Obama during the election. Hopefully today’s Cairo speech, like the sun rising on the pyramids, is the dawn of a new interaction of the United States with the the middle east and Muslim world.

It is not just torture hearings on the training table this morning, there is a plateful of AIG/Bankster/Bailout fun on tap too. At 10:00 am EST, the House Oversight and Government Reform Committee will hold a hearing on “AIG: Where is the Taxpayer Money Going?”.

In advance of the big hearing, David Cho and Brady Dennis in the Washington Post have a significant article out this morning confirming what any sane mind has thought all along, namely that the government and the Fed were way deeper in the muck of the AIG bonuses, and knew full well about the issue, long before they have admitted:

Documents show that senior officials at the Federal Reserve Bank of New York received details about the bonuses more than five months before the firestorm erupted and were deeply engaged with AIG as well as outside lawyers, auditors and public relations firms about the potential controversy. But the New York Fed did not raise the alarm with the Obama administration until the end of February.

Timothy F. Geithner, who became Treasury secretary early this year, was the head of the New York Fed when it became aware of the bonus details. But his name is not among those of senior New York Fed officials mentioned in the summaries of phone calls, correspondence and other documents obtained by The Washington Post.

Those documents also illuminate who in the government, beyond the New York Fed, knew what about the bonuses at AIG’s most troubled unit, and when.
…
By Sept. 29, the bonus matter first appeared on the radar of the New York Fed, which was designated as the primary contact for AIG, documents show. Senior officials from the New York Fed met with AIG officials to discuss the compensation plans in place at Financial Products, whose risky derivative contracts had brought the insurance giant to the brink of collapse.

AIG e-mailed officials at the New York Fed copies of the company’s compensation plans, which detailed bonuses and retention payments, including those at Financial Products, documents show. The issue arose in scores of meetings and conference calls over the ensuing months. AIG also disclosed its retention programs in public filings.

Weeeeeeee! Another shocking instance of gambling going on at the casino. Or not. Actually, when we first learned of the Semtex laden AIG Retention Contracts there were immediate questions as to how it could be that the Fed and the rest of government had no idea of the explosive potential. Now that we know they knew, it sure is hilarious that Treasury Secretary Tim Geithner, in mid-March 2009, tried to devise a laughably bogus plan to fix the very same problem he apparently full bore ignored in October 2008 at the previous job where he was supposedly the smartest kid in the room.

Of course, it wasn’t just the New York Fed, and their purportedly detached head, that have completely misrepresented their depth of knowledge of the pending AIG Bonus Scandal. Congress did too (and they also attempted an inane hasty fix to the problem they had long known of):

Key members of Congress began investigating the payments as long ago as October and, beginning in January, repeatedly warned the Treasury about the matter.
…
The spark that would grow into a political firestorm began in October when lawmakers began to request documents about the compensation at Financial Products.

Rep. Elijah E. Cummings (D-Md.) in particular latched on to the issue.

By January, AIG was feeling heat from lawyers at the House Financial Services Committee, and from the offices of Rep. Paul E. Kanjorski (D-Pa.) and Rep. Joseph Crowley (D-N.Y.), who one staff member noted in an e-mail to AIG was "very upset about these payments." Kanjorski has said that around this time his staff began calling the Treasury about the issue and sending letters, but communication was hindered by the transition between administrations.

Note that both the Fed and Congress folks were jabbering at the Administration, both that of Bush and Obama, on this long before either Administration has fessed up to. Another shocker. There are a lot more specific facts and discussion in the Washington Post article, and it is worth a full read. In fairness, it is certainly not like we didn’t suspect such duplicitous complicity out of these officials, but the starkness of it sure brings the fury of the initial Bonus Babies Scandal revelation right back to the front burner. And just in time for today’s hearing. Go figure.

Now, back to the hearing, the official press announcement describes it as follows:

At 10:00 a.m., Chairman Towns and Ranking Member Issa will offer their respective opening statements and then Chairman Towns will swear in the C.E.O. of AIG, Mr. Edward M. Liddy, at approximately 10:15 a.m. Mr. Liddy will then offer his opening statement followed by questions from the Committee members. At the conclusion of Members’ questions for Mr. Liddy, Chairman Towns will swear in the second panel of witnesses [comprised of AIG Trustees and a professor] and proceed with their opening statements, followed by Members’ questions.

The hearing will be broadcast in-house on channel 32 and available on the Committee webcast at 10:00 a.m.

The prepared testimony/statement of AIG Chief Ed Liddy is here and the AIG Trustees here.

If you are interested in high finance, and torture is not your cup of tea, tune in and turn on. Of course, that is not to say that the slow rot coming out of Tim Geithner, Congress and the AIG saga isn’t torture, it most certainly is.

The bank stress test results are in! Wonderful news, the economy is totally groovy man! Well, except not. For what are being hailed as great results, there are some disturbing numbers. Said stress tests of the 19 largest U.S. banks show they will need a total of $74.6 billion to withstand a deeper recession. For some reason, the NYT seems to think this is good news:

Federal regulators told the country’s 19 largest banks that they must raise $75 billion in extra capital by November, a more upbeat verdict on the health of the financial system than the industry had feared just two months ago.

Ten of the 19 bank holding companies deemed “too big to fail” by the Obama administration will be required to raise additional capital, according to the results of the government’s stress tests, released late Thursday afternoon. But the 10 banks will have to raise much less capital than some analysts had expected as recently as a few days ago.

Citigroup must raise $5.5 billion in new capital, on top of converting $45 billion in rescue funds into ordinary stock, which would give the United States ownership of 36 percent of Citi.

Bank of America must raise $34 billion, but it is likely to resist achieving all or some of that by converting its $45 billion in bailout money into common stock. Instead, the bank is expected to fill its capital hole by selling off smaller divisions, a stake in China Construction Bank and other asset sales.

The stress tests are aimed at estimating how much each bank would lose if the economic downturn proved even deeper than currently expected. Under the worst-case scenario — an unemployment rate of 10.3 percent, an economic contraction of 3.3 percent this year and a 22 percent further decline in housing prices — the losses by the 19 banks could total $600 billion this year and next, or 9.1 percent of the banks’ total loans, regulators concluded. Losses to the banks’ loan portfolios alone could total $455 billion this year and next.

“There is a reassurance in clarity," Treasury Secretary Timothy F. Geithner said at a news briefing on Thursday afternoon.

A "reassurance in clarity". Thanks for that Mr. Geithner. Bank of America Inc – $33.9 billion; Wells Fargo – $13.7 billion, GMAC – $11.5 billion, and Citigroup Inc needs $5.5 billion. Good thing it wasn’t bad news I guess. The biggest key banks, the ones too big to fail, all need massive infusions of cash bigger than the amounts that everybody and their brother are screaming are hideous and untenable to give to GM and Chrysler, companies that actually make things. Well, make things other than grief that is. The kitty, i.e. bank, is supposed to be a safe place for people to store their money not a black hole for income redistribution to the rich. I wonder how many bonuses are being paid?

UPDATE: In another sign of stability in the Mater Of The Universe bankster realm, comes this breaking news from Reuters:

Stephen Friedman, chairman of the New York Federal Reserve’s board of directors, resigned on Thursday amid questions about stock purchases in his former firm Goldman Sachs.

The purchases of Goldman Sachs occurred after the firm became a bank holding company.

Denis Hughes, the deputy chair of the board, will take over Friedman’s role, the New York Fed said.

Oh, and Wells Fargo is rushing out a public offering for at least six billion to cover their position in light of the stress test results. Turns out that Wells, who bragged about the strength of their position and said they did not even need the TARP money they readily took, is a lot closer to the piker banks we have been watching all along. Go figure.

Marcy must have ESP or something, she was just talking about heinous state secrets claims earlier this morning. A three judge panel of the Ninth Circuit Court of Appeals, Chief Judge Mary Schroeder, William Canby and Michael Hawkins, has firmly rejected the vile cover up attempted against several detainees/former detainees led by Binyam Mohamed.

The full decision is here.

I would like to note two things quickly; first off this is a wonderful panel (they are all from Arizona and I have known all of them) and I really expected no less from them. Secondly, it appears from a skimming of the decision that they did not dismiss the ability of the government to assert state secrets, rather indicated the time was not ripe for it. Do not be mistaken, however, this is a big blow to the government and a win for the rule of law.

Here is the operative paragraph of the decision:

On remand, the government must assert the privilege with respect to secret evidence (not classified information), and the district court must determine what evidence is privileged and whether any such evidence is indispensable either to plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should it dismiss the complaint.

The key language here is "Only if privileged evidence is indispensable". I think in light of the process that Vaughn Walker is adopting in al-Haramain, and that has been already utilized in the DC Circuit in detainee cases, this is going to be an increasingly hard burden for the government to make. Very good news indeed.

In his statement on the torture memos today, Obama suggested that some of the "assumptions" about what Americans had done were wrong, and that releasing the memos would correct these "assumptions."

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.[my emphasis]

This suggests (though weakly) that the OLC memos–and not other evidence–should be taken as authoritative on the events surrounding our interrogation program.

Though, on several counts, this is not true.

The most troubling example pertains to Abu Zubaydah’s mental state before he was tortured. John Yoo (writing under Jay Bybee’s name) goes to some lengths to establish Abu Zubaydah’s sanity. After five paragraphs that basically make Abu Zubaydah out to be a self-confident stud, here’s what Yoo says about AZ’s psychological health.

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods. Through reading his diaries and interviewing him, you have found no history of "mood disturbance or other psychiatric pathology[,]" "thought disorder[,] … enduring mood or mental health problems." He is in fact "remarkably resilient and confident that he can overcome adversity." When he encounters stress or low mood, this appears to last only for a short time. He deals with stress by assessing its source, evaluating the coping resources available to him, and then taking action. Your assessment notes that he is "generally self-sufiicient and relies on his understanding and application of religious and psychological principles, intelligence and discipline to avoid and overcome problems." Moreover, you have found that he has a "reliable and durable support system" in his faith, "the blessings of religious leaders, and camaraderie of like-minded mujahedin brothers." During detention, Zubaydah has managed his mood, remaining at most points "circumspect, calm, controlled., and deliberate." He has maintained tius demeanor during aggressive interrogations and reductions in sleep. You describe that in an initial confrontational incident, Zubaydah showed signs of sympathetic nervous system arousal, which you think was possibly fear. Although this incident led him to disclose intelligence information, he was able to quickly regain his composure, his air of confidence, and his "strong resolve" not to reveal any information.

Nowhere else, significantly, does Yoo feel the need to quote so selectively and in such detail about what CIA Acting Counsel John Rizzo had represented to him.

Meanwhile, this is what Dan Coleman–an FBI guy with deep knowledge of al Qaeda–had to say about AZ in Ron Suskind’s One Percent Doctrine:

Meanwhile, Dan Coleman and other knowledgeable members of the tribe of al Qaeda hunters at CIA were reading Zubaydah’s top secret diary and shaking their heads. 

"This guy is insane, certifiable, split personality," Coleman told a top official at FBI after a few days reviewing the Zubaydah haul. 

Two different people reading the same diary. One cherry-picks from it to claim AZ exhibited no evidence of "mood disturbance," whereas another reads the same diary and concludes the guy is nuts.

I might give Yoo and Rizzo equal weight with Coleman in terms of who more credibly measured AZ’s mental state. But the second time Yoo discusses AZ’s mental state, there’s a half paragraph redacted.

The mental health experts that you have consulted have indicated that the psychological impact of a course of conduct must be assessed with reference to the subject’s psychological history and current mental health status. The healthier the individual, the less likely that the use of anyone procedure or set of procedures as a course of conduct will result in prolonged mental harm. A comprehensive psychological profile of Zubaydah has been created. In creating this profile, your personnel drew on direct interviews, Zubaydah’s diaries, observation of Zubaydah since his capture, and information from other sources such as other intelligence and press reports. [half paragraph redacted]

If I had to guess, that half-paragraph shows Yoo’s response to the Coleman claims Yoo had to have known about–and those claims didn’t stand to reason so they were redacted.

There are a number of other discrepancies where existing resources appear far more credible than the information that OLC used (either knowingly or not) on which to found their memos.

For example, there’s the claim that detainees deprived of sleep are not–at the same time–being physically abused.

The shackling [to deprive of sleep] is used only as a passive means of keeping the detainee awake and, in both the tightness of the shackles and the positioning of the hands, is not intended to cause pain. A detainee, for example, will not be allowed to hang by his wrists.

[snip]

Because sleep deprivation does not involve physical pain and would not be expected to to cause extreme physical discomfort to the detainee, the extended duration of sleep deprivation … is not a sufficient factor alone to constitute severe physical suffering.

The ICRC, on the other hand, reported that 10 of 14 high value detainees complained of being hung by their wrists. 

Prolonged stress standing position, naked, held with the arms extended and chained above the head, as alleged by ten of the fourteen, for periods from two or three days continuously, and for up to two or three months intermittently, during which period toilet access was sometimes denied resulting in allegations from four detainees that they had to defecate and urinate over themselves. 

And here’s how the ICRC described the sleep patterns of those shackled with their hands over their heads. 

Although this position prevented most detainees from sleeping, three of the detainees stated that they did fall asleep once or morewhile shackled in this position. These include Mr Khaled Shaik Mohammedand Mr Bin Attash;the third did not wish his name to be transmitted to the authorities. When they did fall asleep held in this position, the whole weight of their bodies was effectively suspended from the shackled  wrists, transmitting the strain through the arms to the shoulders.

I hate to say it, but the 10 high value detainees, each reporting the same treatment independently, are a lot more credible than Steven Bradbury repeating John Rizzo’s empty assurances.

Which suggests that, rather than rebutting "erroneous and inflammatory assumptions," the real concern the release of these memos ought to raise is the misrepresentations CIA apparently made to DOJ. By no means do I mean to excuse John Yoo and Steven Bradbury for their "banality." But John Rizzo was lying. Blatantly. In his claims to OLC as he tried to get stuff approved. 

Contrary to Obama’s suggestion, these memos should not correct any assumptions we’ve made about the torture our government conducted in our name. Rather, they should make it crystal clear that John Rizzo lied repeatedly about what the CIA was doing.

By all means, let’s make sure that Yoo and Bradbury (and Judge Bybee) pay for their legal rationalizations. But let’s include John Rizzo in there for producing the lies that abetted this legal abomination.