It has now been, as noted at FDLNews by David Dayen, one year from the date the British Petroleum wellhead at Macondo blew out, thus killing 11 workers on the TransOcean platform known as “Deepwater Horizon” in the Gulf of Mexico.

These are names you should know. These are the first, and most blatant, victims of the Deepwater Horizon explosion at Macondo. Their actual names do not quickly come to the tongue, nor are they so easy to find. In fact, you know what I had to do to find them? Go through the same process this guy did. And, still, the first link I found them at was his post. Here is a taste of his disgust, and I join it wholeheartedly:

I had to search for those 11 names; most of you may not know them. We didn’t start a war over them, they’re not under any suspicion of anything, not a board of directors of some evil corporate cabal; on the contrary, many would say they are victims of it.

….

But I found them in a story about how frustrated the families are a year later, how frustrated the region is and how all this pep talk about how things are recovering just aren’t true. And there’s plenty of stories about how BP claims to have had its best year ever in terms of safety, yet it caused the worst oil spill in history?? Lots of stories about how the CEO got a million dollar retirement package and bonuses given here and there and it’s enough to make one puke crude, much like a lot of the Gulf remains doing.

First of all, to the families, these people are not “presumed” dead Wikipedia. I know it may be a legal thing, bodies never found, no conclusive evidence, blah blah. They were killed, soldiers in the energy wars killed by friendly fire.

….

…victims of our wanton unbridled lust for oil and the greed of those that produce it. They are dead, gone forever, never to be seen or see their loved ones or live to any more potential; they are gone.

And their deaths appear to have meant little to the world. Nor did the subsequent deaths of everything from thousands of dolphins to countless species of marine life; from the deaths of the livelihoods of so many in the region to the loss of countless ecosystems.

Truer words have likely never been spoken. And that is where I want to pick up.

What could have been done to address these heinous human and ecological wrongs that has not?

Everything.

Because nothing, not diddly squat, has been done. And if the corporate powers that be in this country, and the political puppets who serve them, including Barack Obama, Eric Holder and the currently politicized Department of Justice, have anything to say about it (and they have everything to say about it) nothing significant is going to be done about BP, TransOcean, Halliburton and the Gulf tragedy, or anything related, in the future.

Like the craven and dishonest shell game that has been played by the current administration with regard to torture and destruction of evidence, the US government appears to simply be determined to shine this on with the bare minimum of faux accountability and disingenuous rhetoric to soothe the perturbed masses and maintain status quo with their partners in corporate/political domination of the American populous. That is clearly who they are, and quite apparently who we have become.

So, what could have been the process? Well, that is pretty easily delineated. In fact, I set it out definitively on May 28th of last year. Please refer to the link to the post for a complete list of the factors, nee elements of the crimes, that were already present a year ago. It is startling to realize what was already known then; especially when compounded with what is known now. The only difference today is that we can definitively add the United States government, and the administration of Barack Obama, to the queue of “Criminals in the Gulf“.

Last May I wrote:

As a direct and proximate result of the above described reckless, wanton, willful, and grossly negligent conduct, eleven men are dead and the biggest environmental disaster in history has been unleashed on the fragile and critical Gulf of Mexico, threatening the lives and livelihoods of untold numbers of American families. Some of the toxic death foisted upon the environment cannot even be seen because it lurks in deep giant underwater plumes miles wide by miles long.

The applicable criminal provisions of the Clean Water Act are set out in 33 USC 1319….The Federal criminal provisions for negligent and reckless homicide (statutorily known as manslaughter) are contained in 18 USC 1112….

….

It is hard, if not impossible, to find any way that the conduct of both BP and its key decision making officials responsible for the Deepwater Horizon catastrophe, and corresponding mass loss of life, do not fit within the ambit of the above crimes. Why has the Obama Administration and its DOJ not acted? Why is there not a dedicated criminal investigation open and securing critical evidence?

As best as can be ascertained, the only real DOJ Main assets sent to the Gulf scene are Tony West and Ignacia Moreno, the talking heads for the Civil Division and Environmental Divisions respectively, a tasking that screams of a total coddle the petroleum industry and manage the fallout move, not a get tough criminal consideration.

The DOJ could also be using the Texas Refinery Fire probation case that BP is still under the court’s jurisdiction for from their 2007 felony conviction as an easy investigatory and prosecutorial tool; but the DOJ will not even address the thought, much less act on it.

Why?

The Obama Administration and its DOJ owes the citizens a better effort than they have mustered to date. It is funny they are out trying to prosecute Guantanamo defense attorneys for doing their jobs and are still hell bent to persecute inconsequential marijuana crimes, but have no burning desire to go hard after BP, the biggest environmental criminal in history. How can that be?

In addition to the above manslaughter and general CWA crimes clearly present, 33 USC 1319 contains the criminal provision of the Clean Water Act. Specifically, 33 USC 1319(c)(1)(A) and 1319(c)(2)(A), through their reference to multiple other provisions, but most notably 33 USC 1312, make the toxic contamination of navigable waterways and wetlands a crime.

So, what has transpired in the way of criminal prosecution now that we have reached the one year anniversary of Macondo, the Mouth of Hell, rearing its head and opening its maw?

Not a thing. The US government and the Administration/DOJ of Barack Obama is just stringing it out and propping up the status quo and corporate interests such as BP. Seriously, I have been in the criminal law business for two and a half decades, and you literally almost have to fight to not be prosecuting BP for the criminally negligent, if not recklessly indifferent, deaths of the eleven lost souls on Deepwater Horizon.

Like with torture and the financial meltdown, the criminal activity is so obvious you have to consciously want to “look forward” and want to not prosecute in order to not do so. And that is, apparently, just exactly the case with the Obama Administration and the Holder Department of Justice to date. For the better part of a year, DOJ pitched the bogus meme there was a team working diligently on the BP Oil Spill. But that “task force” was led by Tony West and Ignacia Moreno, a couple of talking head tailored suits out of DOJ Main. Knowledgable former EPA criminal investigators pointed out early on, it seemed just for show and, sure enough, very little appears to have resulted from all those months of the DOJ Deepwater Horizon investigation. In fact, the only notable thing which appears to be resulting from the so called “criminal investigation” is that it is being used to shield and hide the real ecological destruction to the Gulf occasioned by the oil spill, such as the inexplicable and tragic dolphin deaths.

Now, to be fair, the Obama Administration, at the end of March, made another one of its patented government by press release moves by announcing they are “considering” filing manslaughter charges against BP managers. Included in the new PR push was the first official mention of using the somewhat archaic “Seaman’s Manslaughter” law, which is embodied in 18 USC 1115. In a nutshell, the Seamen’s Manslaughter statute allows the government to hold seafarers, owners of vessels, and the corporate management that controls vessels, criminally accountable for maritime accidents that result in the death of a person (Here is a pretty good paper on the statute).

Is there any reason to give the claimed new “push” by DOJ any credibility? The answer depends. Also in late March, the DOJ made a mostly ignored change in leadership on their supposed Gulf Oil Spill investigation. The investigation, the only known active part of which was done by the EPA Environmental Crimes Unit and the US Attorney’s Office in Eastern District of Louisiana, was suddenly yanked and a new “task force” formed to be specially supervised by a chap by the name of John Buretta, who is touted as a veteran criminal prosecutor. That sounds all well and good until you take a good look at what Buretta’s experience really is.

The first thing a closer inspection yields is that Buretta, while indeed having some solid prosecutorial experience, has it almost exclusively in racketeering cases in the Eastern District of New York; he made his bones on mob racketeering investigations. It is hard to see how that lends the experience, knowledge base or skill set for complex environmental crimes. People experienced with complex environmental crimes will tell you (and have told me) environmental crimes is a specialized area, and that a rackets prosecutor from Brooklyn is a severe fish out of water for the Gulf Oil Spill case.

Understandably, the decision to move Buretta in and remove Howard Stewart, the Senior Environmental Crimes Attorney, has generated a high level of frustration in the Environmental section. Behind the scenes, the EPA Criminal Investigative Division (CID) staff believe it is a huge blow because it signals the environmental crimes won’t be dealt with seriously. Furthermore, the EPA criminal investigators have claimed from the start they were being micromanaged by senior political appointees in Washington and not allowed to conduct thorough investigations, just as feared would be the case by the former EPA Criminal Dvision agents when the investigation started. The significance of this marginalization of the environmental unit to the environmental crimes will become clear below.

The other thing that jumps out is the way the Obama Administration has turned their PR play on the matter – it smacks of the same patently dishonest and craven play they ran to slough off any meaningful prosecution of torture and destruction of the critical torture tapes by high level CIA officers, almost certainly working in concert with senior Bush Administration officials. The Buretta announcement appears to have been rolled out by Carrie Johnson, formerly of the Washington Post and now at NPR, and historically a trusted useful tool for the DOJ when they want to want to launder bullshit to the press.

You might remember Johnson from the almost identical type of reporting she did for the DOJ when they were pulling the wool over the public’s eyes regarding the whitewash of the torture tape investigation. When this blog and a few others were making big noise on how the DOJ was cravenly running out the clock on the torture tape destruction prosecutions, the DOJ again turned to Johnson to soft sell the fact they, and their “special prosecutor”, John Durham (who had no torture nor national security experience, but was, yes, another DOJ mob specialist), had intentionally run out the clock on the prosecutions.

Johnson, of course, came through for DOJ with the requisite con job that it was all necessary and there still might be accountability, which was a total joke. And now here is Johnson again carrying the water for the DOJ attempt to shoehorn Buretta, yet another loyal AUSA with nothing but mob experience, but no usable experience in the field to which he is being specially assigned.

So, what does all this mean for the concept of meaningful and appropriate accountability for BP and the other criminal malefactors in the Gulf Oil Spill? The smart money is on the “nothing good” square. While the DOJ now, all of a sudden, is interested in “streamlining” the case, in actuality it likely is the path being set up for a package deal to resolve everything nice and neat so both BP and the Obama Administration can “look forward”. There are subtle tells as to where the Administration is going. The first tell is the newfound emphasis on “Seamen’s manslaughter”, in that, although it is a felony homicide provision, it only requires a showing of regular negligence, as opposed to gross negligence or recklessness under the traditional criminal homicide provisions.

And this is where the sidelining of the environmental crimes team comes into play. By only dealing in terms of regular negligence, as opposed to gross negligence, on the environmental crimes, the administration can minimize the financial penalties assessed to BP. Under the Clean Water Act, the two factors which determine the size of the financial penalty are the total amount of barrels spilled and whether the spill was the result of ordinary negligence, in which case the strict liability damages are assessed at $1,100 per barrel spilled; or “gross negligence” in which case the fine is as high as $4,300 per barrel spilled.

On the largest oil spill in history, having to pay the severely higher damages under gross negligence would be a serious blow to BP. But BP’s own disclosures reveal they are quite certain that will not occur, and there is every indication the Obama Administration intends to see it does not impose such a “hardship” on its favorite partner for military fuel purposes. Not to mention that Barack Obama is again in full campaign fundraising mode and BP is one of his biggest corporate sponsors.

The bottom line is it is a safe bet John Buretta, the rackets specialist, has been assigned to wrap up a nice tidy little package involving simple negligence across the board. It minimizes the spill penalties to BP and will allow criminal charges, if there are any individuals charged at all, to be restricted to a couple of sacrificial lambs who were calling the shots on the Deepwater Horizon rig. If I were Robert Kaluza and Donald Vidrine, the BP company men in charge of Deepwater Horizon when it blew, I would be more than a little worried about the direction this is going, because they are the obvious lambs being prepared for slaughter.

But BP itself, on the other hand, looks set up to be escorted through the process by the Administration and DOJ mostly unscathed. That is what the government does for its valued corporate partners. In fact, far from being penalized and/or debarred from federal contracting as it should be, as Jason Leopold reported Wednesday, BP is being given sweetheart no-bid contracts by the Administration.

Maybe a rackets prosecutor is the right guy after all, because this is quite a racket being run between the US government and BP. A year after Macondo the Mouth of Hell roared, and it is business as usual. Who could have predicted?

[Graphic – BP: Broken Promises. Logo design by Foye 2010 submitted as part of the Art For Change BP Logo Redesign Contest and used with permission]

On Friday, Judge Alvin Hellerstein had a hearing to figure out how to end the contempt suit the ACLU brought against the CIA for destroying the torture tapes. The ACLU asked that he hold the CIA in contempt. Hellerstein said that wouldn’t serve much purpose. The ACLU suggested that he could hold individuals–presumably meaning Jose Rodriguez–in contempt. In the end, Hellerstein asked the two sides to brief him with suggestions. He seems likely, however, to do two things:

• Require the CIA to do a report for him to explain how they’ll prevent such a thing from happening in the future
• Meet with John Durham to hear what he learned in his investigation and make as much of that public as possible

Now, I’m all in favor of getting a very complete report very public report of how the CIA destroyed evidence of torture. The citizens of this country deserve–at the very least–an overview of the investigation and a clear explanation of the roles of the public figures like Porter Goss and John Rizzo. We deserve to know what John McPherson said about the earlier damage done to the torture tapes after John Durham immunized him–and whether Jose Rodriguez and George Tenet pressured him to lie about it. We deserve to know how this relates to all the lies CIA told Congress. We deserve to know each point when the White House got involved in this process.

But I bet you a quarter that Durham will say he can’t make any of this public, because of that mythic ongoing investigation into torture.

It’s what they do.

But as for the homework assignment Hellerstein plans on giving the CIA, to provide him with a report that will convince them they will prevent this kind of evidence disappearing in the future?

It has to go further than the torture tapes themselves.

As I cataloged last year, a great deal of evidence pertaining to torture disappeared over the years:

• Before May 2003: 15 of 92 torture tapes erased or damaged
• Early 2003: Gitmo commander Mike Dunlavey’s paper trail documenting the torture discussions surrounding Mohammed al-Qahtani “lost”
• Before August 2004: John Yoo and Patrick Philbin’s torture memo emails deleted
• June 2005: most copies of Philip Zelikow’s dissent to the May 2005 CAT memo destroyed
• November 8-9, 2005: 92 torture tapes destroyed
• July 2007 (probably): 10 documents from OLC SCIF disappear
• December 19, 2007: Fire breaks out in Cheney’s office

While we have no idea what, if anything, got destroyed in Cheney’s fire, we do know that CIA, DOD, DOJ, and the State Department (along with whoever owned the server on which John Yoo sent his most classified emails about torture) all somehow “lost” evidence pertaining to torture. It’s not just CIA’s problem, it’s the entire executive branch, seemingly losing torture evidence left and right.

And at the very least, Hellerstein ought to demand the very same kind of report from DOJ as he’s asking for from CIA. I mean, has DOJ done anything to make sure the drafts that go into our secret legal opinions authorizing the executive branch to ignore the law don’t disappear, as they did here?? Has DOJ done even the presumably minimal things CIA has done to make sure such documents don’t keep disappearing when they become inconvenient or dangerous? And what about John Yoo’s emails? What has DOJ done, Judge Hellerstein should ask, to find John Yoo’s missing emails and make sure similar emails don’t go missing in the future?

It’s not just the CIA that treated Judge Hellerstein’s order with contempt. So did DOJ. And yet our Justice Department is not even being held to the very low standard that our nation’s spooks are.

I have stayed out of the WikiLeaks scrum to date, mainly because the relatively few cables published to date (only 1,269 of the more than 250,000 cables they possess have been released so far) did not provide that much new on the subjects I normally write on as opposed to just confirming or further supporting previous knowledge and/or suppositions. This is certainly not to say they have not been interesting reading or useful to many others, the WikiLeaks material has been all that.

But now comes the bellicose fixation of the United States government on criminally prosecuting WikiLeak’s editor-in-chief Julian Assange. What started out as the usual idiotic yammering of Rep. Peter King and Sen. Joe Lieberman has turned into an apparently dedicated and determined effort by the Department of Justice to charge Assange. As the following discussion will demonstrate, it will require dicey and novel extrapolation of legal theories and statutes to even charge Assange, much less actually convict him.

The interesting thing is this type of prosecution flies directly in the face of the written charging guidelines of the DOJ which prescribe a prosecution should be brought only where the admissible facts and evidence are “sufficient to obtain and sustain a conviction”. As we have seen in so many instances over the last few years, the DOJ uses this requirement to decline prosecution on a whole host of matters they simply do not want to touch, even where the evidence for conviction of serious crimes is crystal clear and unequivocal. Take for instance the case on the blatant destruction of the abu-Zubaydah and al-Nashiri torture tapes for instance (see here and here), where the DOJ and John Durham used just this basis to decline prosecution because the DOJ just does not, you know, go out on limbs.

So, why would the Obama Administration be so aggressive against Assange when doing so flies in the face of their written guidelines and standard glib protocol? Is it really all about prosecuting Assange? That would be hard to believe; more likely it is not just to monkeywrench Assange and WikiLeaks, but to send a hard and clear prior restraint message to the American press. This is almost surely confirmed by the rhetoric of Joe Lieberman, who is rarely more than a short ride away from his disciple and friend Barack Obama on such matters, and who is making noises about also prosecuting the New York Times.

Never before has the Espionage Act, nor other provisions of the criminal code, been applied to First Amendment protected American press in the manner being blithely tossed around by US officials in the WikiLeak wake. Avoidance of First Amendment press and publication has been not just the general position of the DOJ historically, it has been borne out by significant caselaw over the years. If you need a primer on the hands off attitude that has been the hallmark of treatment of press entities, you need look no further than New York Times v. United States, aka the “Pentagon Papers Case”. In NYT v. US, the government could not even use the Espionage Act in a civil context against the press, much less a criminal one as they propose for Assange, without being forcefully shot down. Daniel Ellsberg is right when he says that “Every attack now made on WikiLeaks and Julian Assange was made against me”.

The Barack Obama Administration, who rode into office on a platform and promise of less secrecy, more transparency and a respect for Constitutional principles, has proved itself time and again to be anything but what it advertised. And to the uninformed populous as a whole, ill served by the American press that is being pinched in this process, Julian Assange presents an attractive vehicle for this prior restraint demagoguery by the US government. The public, especially without strong pushback and fight from the press, will surely bite off on this craven scheme.

But the determination to prosecute Julian Assange is not just a destructive and myopic scheme to effect prior restraint in a digital world, it is laughable from the point of legal foundation of criminal prosecution of Assange. That, however, seems to be no deterrent to the US and the Obama/Holder DOJ. ABC News reported last Friday an US indictment against Assange may be imminent and his lawyers were expecting it, and CBS News confirms with more detail today:

“We have heard from the Swedish authorities there has been a secretly empaneled grand jury in Alexandria…just over the river from Washington DC, next to the Pentagon,” Stephens said. “They are currently investigating this, and indeed the Swedes we understand have said that if he comes to Sweden, they will defer their interest in him to the Americans. Now that shows some level of collusion and embarrassment, so it does seem to me what we have here is nothing more than holding charges…so ultimately they can get their mitts on him.”

Last week, U.S. Attorney General Eric Holder said, “We have a very serious criminal investigation that’s underway, and we’re looking at all of the things that we can do to try to stem the flow of this information.”

Exactly what laws would the DOJ prosecute Assange under? There are two options that appear to have gained traction, the first being the Espionage Act, which is codified in US statutory criminal law in Title 18, Chapter 37, i.e. 18 USC 792 et seq. There are really only two provisions here that could likely be applied to Assange/Wiki, 18 USC 793 “Gathering, transmitting or losing defense information” and 18 USC 798 “Disclosure of classified information”. A review of both statutes yields, at first blush, language that could encompass the conduct of Assange and WikiLeaks.

The infirmity of both provisions becomes apparent upon closer inspection. 18 USC contains several stated active prohibitions, however “publication” is certainly not one of them. There is solid historical authority that such omission of “publication” as a prohibited act was intentional (one would assume in light of the First Amendment). As Jennifer Elsea states in a wonderful discussion in a recent official Congressional Research Service Report:

Moreover, the statutes described in the previous section have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction.

Exactly. And the last bit on “extraterritorial jurisdiction” is not to be overlooked in the discussion either (although it mostly has been to date). Neither Assange nor WikiLeaks committed any overt act on US soil, within its territorial bulge, nor in or on a US controlled facility overseas. Assange is neither an US citizen or permissive resident, nor does his conduct seem to fall within the parameters of the within the Special Maritime and Territorial Jurisdiction of the United States. In short, Assange is neither a US subject of any kind, nor does he appear to have physically committed any overt act within the jurisdiction, even extended, of the United States.

To conclude the Espionage Act discussion, I harken back to New York Times v. United States, where Mr. Justice William O. Douglas wrote,

It is apparent that Congress was capable of, and did, distinguish between publishing and communication in the various sections of the Espionage Act.

The various concurring majority opinions in New York Times v. United States are a treasure trove of law directly against the attempt by the Obama DOJ to prosecute Julian Assange under the Espionage Act, and they are a roadmap for Assange’s defense if they do. If the DOJ undertakes such charges, it is a crystal clear signal their own written prosecutorial standards, as discussed above, are worthless and not worth the paper they are printed on.

The second charging modality against Assange that has been identified by the government relates to receiving and/or retaining stolen property. Receiving and trafficking in stolen property is by definition almost always a state law based offense; however, there is a Federal statute that has occasionally been used in situations having at least some analogy to Assange. The statute is 18 USC 641 and it was used to prosecute Samuel Morison and Jonathan Randal. The difference, of course, is that both Morison and Randal were government employees working in intel (Morison) and for the DEA (Randal).

In short, both gentlemen – Morison and Randal – were Bradley Manning, not Julian Assange; and in both cases the press was not pursued. Because the press is simply in a different posture in light of the First Amendment and the plethora of crystal clear caselaw. Secondly, 18 USC 641 facially contemplates a “thing” or “property” and the argument could certainly be made that no such tangible object was ever removed from the government’s possession, nor were they deprived of the use or possession thereof.

Frankly, while this is an argument I would certainly throw out were I defending Assange, I would not want to hang my hat on it. It is not so hard to see a court finding a digital copy of the cable files to be within the ambit of the statute; especially after the warning Harold Koh gave clearly setting up this application of section 641. The problem is, the DOJ still runs headfirst into the brick wall that is the First Amendment separation of press and publication under the seminal New York Times v. United States case. Again, it is impossible to read the majority opinions in New York Times and find the headroom for the US DOJ to prosecute Julian Assange short of engaging in the production of contorted and scurrilous horse manure.

Oh, and one other thing, about the thought that if Assange is prosecuted, the New York Times could be too; no less an authority than former Bush Attorney General Michael Mukasey suggests, while such may place the NYT squarely within the prosecutorial ambit, that the DOJ simply engage in straight up selective prosecution and go only after Assange. Nice. Remember when all those high minded bloggers were saying how principled Mukasey was and what a refreshing choice he would be to replace Alberto Gonzales? I do; that didn’t work out so well.

Eric Holder and the DOJ cannot possibly find jurisdiction to charge American contractors who torture and murder people in the course and scope of their employment by the US Government abroad, and cannot charge CIA supervisors and OLC lawyers who patently admit to destruction of evidence and conspiracy to commit war crimes; however, the same DOJ is now suddenly able to be so legally creative as to find a path to charging a person under the Espionage Act who is not a US citizen, owed the US no duty under citizenship and treason provisions, committed no act within the jurisdiction of the US and who is a member within the general definition of “press” and who only published purported whistleblower leaks given to him. It is amazing how the DOJ is willing to go out on that “limb” when it wants to, but can never so travel when the interests of justice really demand it to.

In conclusion, and to bring this post full circle, there is no established viable basis for prosecuting Julian Assange, in fact all precedent is to the contrary. To do so flies directly in the face of the once vaunted DOJ guidelines for criminal prosecution. For these reasons, there is no reason to consider the attempts by the US government to prosecute Assange as anything but a craven facial assault on the First Amendment and freedom of the press. After seeing the disdain, contempt and avarice the Obama Administration has displayed toward the Fourth Amendment and Fifth Amendment, I guess no one should be shocked.

I think it was the timing of the end of the torture investigation that hurts most of all. Just days ago, Harold Koh was boasting of the Durham investigation to the UN. Then Bush started his dog and pony show, including his proud admission to have ordered up torture. All of which made today’s announcement, that no one will be charged for covering up evidence of torture, almost anti-climactic.

Of course no one will be charged for destroying the evidence of torture! Our country has spun so far beyond holding the criminals who run our country accountable that even the notion of accountability for torture was becoming quaint and musty while we waited and screamed for some kind of acknowledgment that Durham had let the statute of limitations on the torture tape destruction expire. I doubt they would have even marked the moment–yet another criminal investigation of the Bush Administration ending in nothing–it if weren’t for the big stink bmaz has been making. Well, maybe that’s not right–after all, Bob Bennett was bound to do a very public victory lap, because that’s what he’s paid for.

The investigation continues, DOJ tells us, into obstruction of the Durham investigation itself. Maybe they think they’ve caught someone like Porter Goss in a lie. But at this point, that almost seems like a nice story the prosecutors are telling themselves so they can believe they’re still prosecutors, so they can believe we still have rule of law in this country.

This inquiry started long before Obama started looking forward, not backward. It started before the White House allowed the Chief of Staff to override the Attorney General on Gitmo and torture. It started before we found out that someone had destroyed many of the torture documents at DOJ–only to find no one at DOJ cared. It started before the Obama DOJ made up silly reasons why Americans couldn’t see what the Vice President had to say about ordering the leak of a CIA officer’s identity. It started before the Obama White House kept invoking State Secrets to cover up Bush’s crimes, from illegal wiretapping, to kidnapping, to torture. It started at a time when we naively believed that Change might include putting the legal abuses of the past behind us.

This inquiry started before the Obama Administration assumed the right to kill American citizens with no due process–all the while invoking State Secrets to hide that, too.

This inquiry started before Bush and then Obama let BP get away with serial violations of the laws that protect our workers and environment, and then acted surprised when BP ruined our Gulf.

This inquiry started before Obama helped to cover up the massive fraud committed by our banks, even while it continued to find ways to print money for those same banks. It started, too, before the Obama Administration ignored mounting evidence that banks–the banks employed by taxpayer owned Fannie and Freddie–were foreclosing on homes they didn’t have the legal right to foreclose on, going so far as to counterfeit documents to justify it. This inquiry started when we still believed in the old-fashioned principle of property rights.

This inquiry started before banksters got excused when they mowed down cyclists and left the scene of the crime, because a felony would mean the bankster would lose his job.

The ACLU’s Anthony Romero reacted to this news saying, in part, “We cannot say that we live under the rule of law unless we are clear that no one is above the law.”

I think it’s clear. We cannot say we live under the rule of law.

I’m working on a post on the news that DOJ will not charge Jose Rodriguez for destroying the torture tapes. But that’s going to take a while (read the NYT on the news in the meantime).

In the meantime, though, I wanted to point to Adam Serwer’s summary of yesterday’s hearing on the Anwar al-Awlaki suit. The most amusing detail in Adam’s story is that the government only wants to rely on its invocation of State Secrets as a fallback position.

Letter explicitly asked Bates to dismiss the lawsuit on state-secrets grounds only as a last resort.

See?!? They have some shame about their abuse of executive power, even if they’re going to rely on it anyway.

The most important issue, IMO, pertains to standing–I have already suggested that Judge Bates might reject the suit for lack of standing, not least because it’s the easiest way to punt. Adam suggests that Bates was thoroughly uninterested in one of two potential ways to establish standing.

The ACLU/CCR contends they have standing under two criteria, “Next Friend” and “Third Party.” Meeting the standard under “Next Friend” requires the ACLU/CCR to show that the younger al-Awlaki would want to sue but can’t, while “Third Party” demands that the elder al-Awlaki show that he would “suffer a concrete, redressable injury” from the government’s actions. Although Ben Wittes, who was also there, would disagree with me, I think Bates was more sympathetic to “Next Friend” than he was to the “Third Party” question, as he warned the latter could lead to a flood of lawsuits based on government action, and an “unprincipled landscape” in which judges arbitrarily decide standing based on the plaintiffs they’re sympathetic to.

But perhaps the most dramatic part of the hearing appears to have been when Jameel Jaffer stood up and stated that this suit was about whether or not the President can order the assassination of a citizen with no review. I actually differ with Adam’s take on some of this.

There was an exchange at the end of arguments that, beyond the legalese, really crystallized what this case is about. Both sides had offered their final rebuttals, but ACLU attorney Jameel Jaffer stood again and stated that the lawsuit was really about whether the president possesses an “unreviewable authority to order the assassination of an American citizen.” It moved Bates to ask Letter if he wanted to respond.

[DOJ Attorney Douglas] Letter rose and called Jaffer’s statement “absurd” and “ridiculous” but what followed was less convincing. He pointed out that the AUMF limits the president to overseas operations, that al-Awlaki was part of an “officially designated” terrorist group who was “attempting to carry out operations” against Americans.The fact that al-Awlaki had just released a new video calling for Muslims to kill Americans probably weighed on reporters in the courtroom.

Only the first of Letter’s statements is beyond dispute. The other two concern unproven — but not necessarily inaccurate — assumptions of fact that go to the heart of the case: whether or not al-Awlaki is actually an “operational leader” of al-Qaeda in the Arabian Peninsula or simply a vicious hatemonger who justifies and exhorts terrorism against Americans. The government is actually saying that its unilateral determination that the latter two assumptions are accurate that allow the government to deprive al-Awlaki of life without due process.

First, note that Letter’s claim that al-Awlaki was part of an “officially designated” terrorist group is a bunch of baloney. He is now part of that group, at least according to the unproven allegations of the government. But the State Department didn’t get around to designating al Qaeda in the Arabian Peninsula as such until several weeks after they had put al-Awlaki on the JSOC kill list (though he was not yet on the CIA kill list), so the suggestion that the President would only target someone formally designated a terrorist for assassination is a lie.

But the other claim–that the AUMF only covers operations overseas–is even sillier.

Consider: the government has not yet withdrawn the White Paper retroactively authorizing the illegal wiretap program under the AUMF. Thus, DOJ still supports claims that the AUMF authorized the President–any President–to conduct operations (in that case, military operations in the form of NSA wiretapping) in the United States.

Mind you, Tom Daschle has made it clear that Congress specifically refused to grant the President authority to operate in the United States. But so long as DOJ supports that White Paper, they stand by a public claim that the AUMF authorized the President to operate within the US.

So Jaffer is right: there’s nothing about Douglas Letter’s claims that rebut Jaffer’s argument that this is about whether the President can unilaterally assassinate an American citizen. As Adam has shown, simply asserting someone is a member of a terrorist organization does not make the assertion any less unilateral. And Letter’s claims that the AUMF does not authorize operations in the United States seems to ignore DOJ policy that supports just such a claim.

Today’s news will be dominated with Bush’s admission that Cheney was mad at him for not pardoning Libby.

Bush, in an interview aired Monday on TODAY, said Cheney was angry that Bush only commuted the sentence of I. Lewis “Scooter” Libby, convicted of lying during the leak investigation.

[snip]

‘I can’t believe you’re going to leave a soldier on the battlefield,’ former president says ex-VP told him.

Of course we already knew this. This was widely reported just after Obama’s inauguration. And as I pointed out at the time, the underlying story to the non-pardon probably has everything to do with making sure that Libby won’t ever reveal Bush’s own role in exposing Valerie Plame’s identity.

It would have been nice if Matt Lauer asked Bush about whether he refused to pardon Libby so as to keep him silent, but I suppose Lauer’s job is to help Bush sell books, not to ask tuff qweschins.

But an even better question would have been to ask Bush whether he believes, with the statute of limitations expiring on the torture tape destruction, his own role in approving torture is now safe. Bush allies have spun a nice story that the White House opposed the destruction of the torture tapes and was mad that Jose Rodriguez did it anyway. If that’s true (ha!), then Bush ought to be pissed that Rodriguez is, apparently, getting away with it. But again, I think Lauer’s role is to help Bush sell books, not ask the difficult questions.

As the press is distracted with a rehashing of the successful cover-up of one of Bush’s crimes, we ought to remember that today marks the successful cover-up of a more horrible crime.

On Friday, Russia joined the growing list of country telling us to investigate our torture chambers. It may be more noteworthy coming from Russia given the turnabout: back in the day, of course, dissidents and the US pressured the Soviet Union to abide by the human rights treaties it had signed. Then there’s this:

Russia called on the United States to conducted a thorough and objective investigation of the facts of torture of prisoners in U.S. secret prisons and detention centres at Bagram and Guantanamo, Russia’s Permanent Representative to the United Nations Office and other International Organizations in Geneva, Valery Loshchinin, said while discussing the U.S. Universal Periodic Review at the UN Human Rights Council.

They want us to investigate Bagram. Great: that’s probably where some of our worst abuse currently takes place (when we don’t simply outsource it entirely). And I’m sure Russia enjoys pressuring us to be better overlords in Afghanistan.

And Gitmo: well, sure. While we have investigated some of this torture, there’s the outstanding question what we did at Camp No.

But notice what Loshchinin’s statement doesn’t mention? Our torture chambers in Eastern Europe, particularly Romania and Poland. I guess maybe they thought it’d be unseemly to say, “investigate what you’ve been doing at those prisons we used for so many years.”

And on the subject of investigating torture, as we’ve been noting, the statute of limitations on the torture tape destruction expires today. Have we indicted anyone yet?

The WaPo reports that Bush, in his book, admits to approving waterboarding.

In a memoir due out Tuesday, Bush makes clear that he personally approved the use of that coercive technique against alleged Sept. 11 plotter Khalid Sheik Mohammed, an admission the human rights experts say could one day have legal consequences for him.

In his book, titled “Decision Points,” Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was “Damn right” and states that he would make the same decision again to save lives, according to a someone close to Bush who has read the book.

At one level, this is thoroughly unsurprising. We know the Bush Administration very deliberately implemented torture, so it’s unsurprising to hear that it was approved by the President.

But–at least as Jeffrey Smith relays the admission from Bush–it raises as many questions as it does answers.

It appears that Bush admits to approving torture for use with Khalid Sheikh Mohammed. That is, he approved torture sometime around March 1, 2003, when KSM was captured.

That date is itself very significant. After all, on February 5, 2003, the first Democrat (Jane Harman) was briefed that the CIA had used waterboarding. Her response was a letter, objecting not just to the destruction of the torture tapes, but also asking specifically whether Bush had signed off on torture.

I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?

In response, CIA appears to have met with the White House around February 19, ostensibly to talk about an appropriate response. They also appear to have consulted with the White House on how they should record the results of the Gang of 4 briefings from that month; in the end, they only recorded the outcome of the Senate briefing–which Jay Rockefeller did not attend and at which Pat Roberts is recorded to have signed off not just on torture, but on destroying the torture tapes depicting that torture. In other words, for much of February 2003, CIA was working closely with the White House to create a false appearance of Congressional approval for torture, even while they were specifically refusing to give Congress something akin to a Finding making it clear the President had signed off on that torture.

And now we come to find out that’s precisely the period during which–at least according to Bush–he approved torture.

But note what that leaves out. At least from Smith’s description, it appears that Bush says nothing about approving the waterboarding of Abu Zubaydah (nor the reported waterboarding of Ibn Sheikh al-Libi). Mind you, Ron Suskind has reported that Bush was intimately, almost gleefully, involved in ordering torture for Abu Zubaydah.

But Bush doesn’t cop to that in his book.

Now, there may be good reason for that. After all, John Yoo had not yet written the memo claiming that waterboarding did not amount to torture at the time Abu Zubaydah was first tortured.

Moreover, there’s the whole issue of the approval method for the torture that occurred before August 1, 2002.

The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA’s counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration’s legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

According to multiple reports, the White House–Alberto Gonzales at least, if not his boss–approved the torture of Abu Zubaydah on a daily basis. And when you read the Bybee Memo and the OPR Report on it, it’s very clear that the memo carved out legal authorization specifically for the torture directly authorized by the President. Indeed, the White House’s prior approval for torture–potentially up to and including waterboarding–may explain the urgency behind the memo in the first place, to provide retroactive legal cover for Bush’s unilateral disregard for US laws prohibiting torture.

In other words, Bush has admitted to approving torture in 2003. But that likely obfuscates his earlier approval for torture at a time when he had no legal cover for doing so.

In other news, the statute of limitations on the torture tape destruction expires in just three or four days. Yet we’ve got silence coming from John Durham.

ACLU reports that Rahim al-Nashiri’s lawyer’s request to include their client’s treatment at a black site in Poland in the country’s investigation has been successful.

The Polish prosecutor will investigate the detention and torture of Abd al-Rahim al-Nashiri at a black site in Poland after he was kidnapped and transported there by the CIA.

[snip]

Al-Nashiri, who is accused in the 2000 U.S.S. Cole bombing, was granted the status of “injured party” in Poland’s ongoing investigation into torture in response to a September 21 petition from his lawyers.

Jameel Jaffer uses this event to focus on how little our own country has done to hold its torturers accountable.

Today’s announcement that Poland will investigate the torture of Mr. al-Nashiri serves as a stark reminder of how little has been done in the U.S. to hold top officials accountable for torture. Holding torturers accountable is essential to restoring American credibility at home and abroad – the U.S. can no longer remain silent as, one by one, other nations begin to reckon with their own agents’ complicity in the torture program through prosecutions and judicial inquiries.

Of course, at the rate we’re going, there will be no accountability. The statute of limitations on the destruction of the torture tapes will expire in just 11 days. At that point, the CIA will have officially gotten away with destroying the evidence of their torture, including evidence pertaining to al-Nashiri himself.

Adam Goldman has another in his series of articles fleshing out the details of the torture that John Durham is investigating. Today’s story describes the former FBI-turned CIA guy, “Albert” threatened Rahim al-Nashiri with a drill–with the approval of Albert’s boss, “Mike.” (Though the AP story says this threat would be less than a felony assault, recall that John Yoo specifically forbade CIA to use death threats, so while it might not be assault it would–according even to John Yoo–constitute torture.)

I assume you’ll go read that in its entirety.

While you’re there, note this emerging pattern in Goldman’s reporting on torture: the return of torturers as CIA contractors. He reports that “Albert” left the CIA then returned to train CIA officers as a contractor.

After leaving the CIA, Albert returned at some point as a contractor, training CIA officers at a facility in northern Virginia to handle different scenarios they might face in the field, according to former officials. Albert hasn’t been involved in training CIA employees for at least two years, but a current U.S. official says he continues to work as an intelligence contractor.

A message left with Albert was not returned. It’s not clear when he left the agency and became an intelligence contractor.

Recall that, in a story from a few weeks ago, Goldman reported that Jose Rodriguez (who gave the order to destroy the torture tapes, among other things) regularly lurks around CIA and ODNI as the head of Edge Consulting.

Rodriguez, now an executive with contractor Edge Consulting, a job that regularly gives him access to the national intelligence director’s office and CIA headquarters, still hasn’t received an official retirement party.