Pat Leahy Calls for Truth Commission

I want prosecutions. But seeing as how it looks increasingly likely we won’t get that, I want some accounting for the crimes of the Bush Administration. Today, Pat Leahy joined his counter-part in the House, John Conyers, as well as the Chair of the Senate Armed Services Committee, Carl Levin, in calling for a committee to examine the wrong-doing of the Bush Administration. 

The President is right that we need to focus on fixing the problems that exist and improving the future for hardworking Americans. I wholeheartedly agree and expect the Judiciary Committee and the Senate to act accordingly. But that does not mean that we should abandon seeking ways to provide accountability for what has been a dangerous and disastrous diversion from American law and values. Many Americans feel we need to get to the bottom of what went wrong. We need to be able to read the page before we turn it.

We will work with the Obama administration to fix those parts of our government that went off course. The Office of Legal Counsel at the Justice Department is one of those institutions that was hijacked and must be restored. There must be review and revision of that office’s legal work of the last eight years, when so much of that work was kept secret.

We have succeeded over the last two years in revitalizing our Committee’s oversight capabilities. The periodic oversight hearings with the Attorney General, the FBI Director, the Secretary of Homeland Security, and others will continue. The past can be prologue unless we set things right.

As to the best course of action for bringing a reckoning for the actions of the past eight years, there has been heated disagreement. There are some who resist any effort to investigate the misdeeds of the recent past. Indeed, some Republican Senators tried to extract a devil’s bargain from the Attorney General nominee in exchange for their votes, a commitment that he would not prosecute for anything that happened on President Bush’s watch. That is a pledge no prosecutor should give, and Eric Holder did not, but because he did not, it accounts for many of the partisan votes against him.

There are others who say that, even if it takes all of the next eight years, divides this country, and distracts from the necessary priority Read more

The WSJ's Curious Picture of Congress and Torture

I was overly optimistic about the head cold fog I’m in today. But a couple of details from the WSJ editorial Christy linked to yesterday are stuck in my craw.

The editorial is an attempt to warn Congressional Democrats against pushing for a (as the WSJ calls it) "Truth Commission" to investigate the Bush Administration’s torture policies.

In particular, at [Panetta’s and Bair’s] nomination hearings they’re likely to be asked to support a "truth commission" on the Bush Administration’s terrorist interrogation policies. We hope they have the good sense to resist. And if they need any reason to push back, they could start by noting the Members of Congress who would be on the witness list to raise their right hands.

It then lists the Democrats it believes would serve as witnesses in such an investigation: it names Pelosi specifically, it deals with Jane Harman’s public objections to torture, and also invokes Intelligence Committee leadership and–after 2006–membership more generally.

Now, I’ll come back to this individualized focus in a second. But here’s the paragraph that has really got me thinking.

The real — the only — point of this "truth" exercise is to smear Bush Administration officials and coax foreign prosecutors into indicting them if Mr. Obama’s Justice Department refuses. The House and Senate Intelligence Committees already possess the relevant facts, and Senator Carl Levin and his staff have spent two-and-a-half years looking at mountains of documents — with nothing to show for it.

Carl Levin, the editorial claims, spent two-and-a-half years looking at documents, with nothing to show for it.

What a remarkable claim, given that the Executive Summary of that not-quite-two-year investigation (since Levin took over as SASC Chair in 2007–the WSJ can’t even get its dates right) lists this as its first conclusion:

On February 7, 2002, President George W. Bush made a written determination that Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, did not apply to al Qaeda or Taliban detainees. Following the President’s determination, techniques such as waterboarding, nudity, and stress positions, used in SERE training to simulate tactics used by enemies that refuse to follow the Geneva Conventions, were authorized for use in interrogations of detainees in U.S. custody.

And this as unlucky conclusion 13:

Secretary of Defense Donald Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there. Read more

Killing GM in the Guise of Saving It

Several articles out this morning make it look like the Bush Administration is planning on "helping" GM by dismantling it softly and breaking the union, all with no apparent focus to making it viable again.

First, there’s this story suggesting that Bush may ask for the same concessions as Corker demanded last week.

Over the weekend, analyst Brian Johnson of Barclays Capital issued a report suggesting that the White House may still demand some significant concessions from the United Auto Workers as a condition of any short-term financial aid.

"Based on comments on the CBS show Face the Nation this Sunday morning by Senators Corker (R-Tenn.) and Levin (D-Mich.), we believe it is highly likely that the White House bailout may impose many of the same conditions Senator Corker insisted upon on Thursday in his attempt to forge a compromise," Johnson said.

That amendment would have required General Motors, Chrysler, the UAW and bondholders to replace half of the companies VEBA contributions with stock, eliminate the jobs banks and buyouts and agree to competitive wages, benefits and work rules by March 31 or be forced into bankruptcy court. Johnson has advocated many of the same provisions in his roadmap for a GM turnaround.

Note, once again, the silence about concessions from dealers?

Yesterday, Carl Levin gave similar warnings that the Bush Administration–which refused to even place compensation limits in TARP that Wall Street bankers couldn’t drive an Escalade through–is going to place real demands on GM and Chrysler.

And meanwhile, just by coinkydink, Bank of America is calculating how much money GM would need to fund bankruptcy proceedings.

GM may need around $30 billion in debtor-in-possession loans, which are used to pay for a company’s operating expenses as it restructures under bankruptcy protection, Bank of America analysts said in a report issued late on Friday.

The $30 billion represents around two times GM’s working capital, with an additional $10 billion cushion for further earnings hits and to fund suppliers, the bank said.

GM had $36 billion in long-term debt as of September 30, according to a regulatory filing.

To support GM, and the industry, the government will need to lend funds to support the company in bankruptcy rather than out of bankruptcy, as that is the only way to ensure the government has the most senior claim on the automaker’s assets, the bank added. Read more

Three Auto State Senators “Said in a Statement”

For an example of just how crappy the reporting on a potential auto bridge is, check out this NYT article. Its title announces "Republicans Divided on Aid to Automakers." Yet the part of the article that purportedly tells that story consists solely of statements of the four most invested Republican Senators on the issue.

Kit Bond (who co-sponsored past efforts with Carl Levin):

“I’m glad the Democratic leadership has embraced the principles of the Bond-Levin bill to hold auto companies accountable, protect taxpayers and save millions of American jobs as we head into the holiday season,” Mr. Bond said in a statement.

Bob Corker: 

“Based on the outline we’ve seen so far, we are disappointed,” Mr. Corker said in a statement. He reiterated his demands that the automakers make aggressive efforts to cut labor costs and reduce their overall debt obligations before receiving any aid.

“These are the same types of conditions a bankruptcy judge might require to ensure that these companies become viable and sustainable into the future,” Mr. Corker said. “And if they will agree to these terms, then we have something to talk about.”

Mitch McConnell:

“I look forward to reviewing the legislation being drafted to address the difficulties in our auto markets,” Mr. McConnell said in a statement. “As we consider this legislation, our first priority must be to protect the hard-earned money of the American taxpayer.”

And a gratuitous inclusion of Richard Shelby, though he apparently hasn’t issued any new statement, but somehow gets included, based on no apparently new reporting:

The senior Republican on the banking committee, Senator Richard C. Shelby of Alabama, has said he will oppose any taxpayer-financed bailout for the auto industry, and other fiscal hawks are likely to join him in opposing the measure.

This is what counts as reporting these days for the NYT. Three official statements probably gleaned from press releases, thereby letting those most invested in this debate stand in for those who will determine its outcome.

In spite of the fact that every single Republican listed (along with Carl Levin) is an auto state Senator of one sort or another, David Herszenhorn doesn’t apparently consider that information to be noteworthy (indeed, he attributes Shelby’s opposition to any bailout to fiscal conservatism, not anti-union ideology and home state self-interest). Read more

Senator Levin to Do Live Chat on Ongoing Senate Investigation into Detainee Abuse at 11 ET Tuesday

levinhighres.thumbnail.jpgWe had a very engaged liveblog discussion during the Senate Armed Services Committee’s hearing on Detainee Abuse a few weeks ago. Tomorrow, the Chair of the Committee, Senator Carl Levin, will do a live chat at FDL to talk about the next steps in the Committee’s investigation. Senator Levin will join us at 11 AM ET on Tuesday.

In his statement from that earlier hearing, Levin gave a detailed description of how DOD adapted its SERE training techniques for use on prisoners.

So, how did it come about that American military personnel stripped detainees naked, put them in stress positions, used dogs to scare them, put leashes around their necks to humiliate them, hooded them, deprived them of sleep, and blasted music at them. Were these actions the result of “a few bad apples” acting on their own? It would be a lot easier to accept if it were. But that’s not the case. The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality, and authorized their use against detainees. In the process, they damaged our ability to collect intelligence that could save lives.

Today’s hearing will explore part of the story: how it came about that techniques, called SERE resistance training techniques, which are used to teach American soldiers to resist abusive interrogations by enemies that refuse to follow the Geneva Conventions, were turned on their head and sanctioned by Department of Defense officials for use offensively against detainees.

During June’s hearing, a lot of new questions were raised (and DOD General Counsel Jim Haynes proved to have as fuzzy a memory as every other senior Bush official). Tomorrow, join us to talk with Senator Levin about how the investigation will move forward.

Senate Armed Services Torture Hearing, Three

Graham: I understand from Schmitt-Furlow report that a dog was used in interrogation.

Beaver: I was not aware of it.

Graham when you said this didn’t happen at Gitmo, you’re not right.

Beaver: What was approved did not happen.

Graham Who did this?

Beaver: I don’t know.

Graham it was part of interrogation plan. Also strip-searched in front of female personnel. Based on this report we know in at least one interrogation dogs were used a person was stripped.

Beaver I haven’t read it, but I take your word for it.

Graham Mora, you spoke up, you continued to speak up, other lawyers continued to speak up, some of your criticism was listened to, they were ratcheted down.

Mora: I’m not sure

Graham They reevaluated the techniques, and a new group came up, Dalton. You were never involved in any final approval of new techniques.

Mora: that’s correct. To my knowledge, I thought draft was never finalized, not part of final approval.

Graham Dalton, Do you ever remember Miller going to Iraq?

Beaver: asked me to travel with him.

Graham: Sanchez said we need better intell. Was that the nature of the visit?

Beaver: A number of problems. Read more

Senate Armed Services Torture Hearing, Two

Here are the documents released by the committee.

Are here are some links to Spencer Ackerman’s work on this: here, here, here, and here.

McCaskill: We disrespect men and women who serve if we don’t have this hearing. Did you review Beaver opinion?


McCaskill: If you came across phrase, "immnuity in advance," would it cause you pause?

Shiffrin: yes.

McCaskill: Any lawyer would ask what planet are we on? That would be a crime!

McCaskill: In fact, as I just said, if someone visits with someone about committing a crime and I’ll give you immunity, wouldn’t they be guilty of a crime.

Shiffrin: they could be, Senator.

McCaskill: This legal memorandum, basis for SOD to sick dogs on them, contained a legal theory called immunity in advance, and no one, your boss got this, he is a trained prosecutor. Has he had experience as a prosecutor, experience in a court room. It is mindboggling to me that no one would hear the raging offense to rule of law.

McCaskill: what are the names of people who gave you impression we needed more aggressive techniques. WHo told you.

Shiffrin: Not what I said. Discussoin of progress, lack of progress, obtaining actionable intelligence out of detainees. Chaired by Haynes, 5-6 other lawyers.

McCaskill: Who was in the room?

Shiffrin: frustration, didn’t say we needed to change techniques. Whit Cobb, DGCIA Charles Allen, Marine worked in Counsel office, Bill Lietsow, there was a lawyer now my successor, Eleana Davidson, responsible for detainee matters. Those were the lawyers would have been present.

McCaskill: ever present after Haynes recommended approval of these techniques?

Shiffrin: Met with Haynes every day. I forget the date.

McCaskill: I can give the date. November 27, 2002, Approved December 2, 2002.

Shiffrin: Vague recollection that memorandum approved.

McCaskill: Aware memorandum existed. I think you’re a good lawyer care about your country. We’re trying to figure out who decided. Did this come from David Addington and Cheney, Gonzales’ shop? Chertoff. There are people still in responsibility in our govt. No one is willing to say where this came from. This move towards imploding the traditions of this country.

Shiffrin: The GC office often operated in compartmentalized fashion. Not unusual to get request about SERE and I’d find out that someone else was doing the same thing, or that it was going to be used at Gitmo, never be part of discussion about what they were going to do. Read more

Senate Armed Services Torture Hearing

Joby Warrick maps out what we can expect from today’s Senate Armed Services Committee hearing, now showing on CSPAN3.

A Senate investigation has concluded that top Pentagon officials began assembling lists of harsh interrogation techniques in the summer of 2002 for use on detainees at Guantanamo Bay and that those officials later cited memos from field commanders to suggest that the proposals originated far down the chain of command, according to congressional sources briefed on the findings.

The sources said that memos and other evidence obtained during the inquiry show that officials in the office of then-Defense Secretary Donald H. Rumsfeld started to research the use of waterboarding, stress positions, sensory deprivation and other practices in July 2002, months before memos from commanders at the detention facility in Cuba requested permission to use those measures on suspected terrorists.

The reported evidence — some of which is expected to be made public at a Senate hearing today — also shows that military lawyers raised strong concerns about the legality of the practices as early as November 2002, a month before Rumsfeld approved them. The findings contradict previous accounts by top Bush administration appointees, setting the stage for new clashes between the White House and Congress over the origins of interrogation methods that many lawmakers regard as torture and possibly illegal.

This is a well-constructed hearing–and I say that not just because my Senator, Carl Levin, put it together. It has three panels. The first features the people who turned SERE techniques into torture techniques:

Mr. Richard L. Shiffrin
Former Deputy General Counsel for Intelligence
Department of Defense

Lieutenant Colonel Daniel J. Baumgartner, Jr., USAF (Ret.)
Former Chief of Staff
Joint Personnel Recovery Agency

Dr. Jerald F. Ogrisseg
Former Chief, Psychology Services
336th Training Group
United States Air Force Survival School

The second panel will expose the debate among military lawyers about whether or not to use torture:

Mr. Alberto J. Mora
Former General Counsel
United States Navy

Rear Admiral Jane G. Dalton, USN (Ret.)
Former Legal Advisor to the Chairman
Joint Chiefs of Staff

Lieutenant Colonel Diane E. Beaver, USA (Ret.)
Former Staff Judge Advocate
Joint Task Force 170/JTF Guantanamo Bay

And the third features Jim "Chevron" Haynes, who is under some pressure for his changing testimony, potentially amounting to perjury:

Mr. William J. Haynes II
Former General Counsel
Department of Defense

Here are the documents that will be discussed during the hearing (courtesy of WO and Marty Lederman).

Read more

A Recap of the RBC Meeting

I don’t mean to beat a dead horse, but I thought it worthwhile to post a recap of the RBC meeting yesterday.

First, the outcome: The Committee decided FL and MI will be seated–with both elected and super delegates seated at half strength. The FL delegation will be based entirely on the results of their January primary. And the MI delegation will be based on what the MDP thought would be the best approximation of a fair reflection of the will of the voters–which works out to be a 69-59 split (though each delegate votes at half strength).

A review of the importance of "fair reflection" may help folks understand why the RBC chose to accept a seemingly arbitrary number from MI.

Article Two Section 4 of the Democratic Party Charter requires that delegations to the National Convention "fairly reflect the division of preferences expressed by those who participate in the Presidential nominating process." That means you’ve got to make sure the delegates to the Convention actually match what people who "participate in the Presidential nominating process" want. This is a concept that Hillary’s top advisor, Harold Ickes, emphasized when he argued that MI’s delegation should be based on our January 15 Clusterfuck–he said repeatedly that this principle was as fundamental a principle as the First Amendment. And basically, Ickes’ arguments were all premised on his judgment that the Clusterfuck was a meaningful measure of the preferences for President.

But it was on the basis of this "fair representation" concept that the MI presenters, Mark Brewer and Carl Levin, made their ultimately successful arguments. Brewer (who is a big numbers geek) basically looked at several reasons why the Clusterfuck could not be considered a "fair representation:" because Obama’s and Edwards’ names weren’t on the ballot, because an exit poll showed that Hillary and Obama would have taken something like 45% and 35% of the vote (the results of the Clusterfuck were 55% Hillary, 40% uncommitted), and the high number of write-ins that were thrown out that reflected a desire to vote for Obama or Edwards. In other words, Brewer threw out a load of data that proved that the Clusterfuck did not measure a "fair reflection" of the preferences of those who participated in the Clusterfuck. And given the results, this argument must have been persuasive to the RBC committee.

Read more

The MI Challenge

As I said in this post, I was skeptical that Mark Brewer–the MDP Chair–would be able to make a strong case for the 69-59 split.

I was wrong.

The key to Mark Brewer’s success was in stating clearly that there was no way to measure the "fair reflection" of the intent of the voters who participated in the presidential selection process because, as he pointed out, there was no primary, convention, or caucus, that actually measured it.

And that’s the fundamental truth that made the Clusterfuck the Clusterfuck it was.

By starting from that premise, Mark managed to undercut the legal problem with the challenge–that the RBC doesn’t have the authority to arbitrarily impose a result. Because if the RBC seats a delegation based on the result of the January 15 Clusterfuck, then it will be violating one of its key principles.

This was the first time I’ve heard anyone from the MDP state that the Clusterfuck was not a measure of the will of the voters. I wish they had said so earlier. But I’m glad they’re making that point now.

For those wanting a primer on the fun ironies of those presenting MI’s case, btw, don’t miss this DHinMI post:

Opening the testimony will be Michigan Democratic Party chair Mark Brewer.


I know Mark loved the process we used in 1996 through 2004, which was called a caucus but essentially worked like a closed primary. I’m quite certain that if it had been his decision alone, that Michigan would not have jumped the queue and created the mess that’s ensued. As party chair, he has to take strong cues from the governor, and much of this mess goes to Governor Jennifer Granholm. And since Jennifer Granholm has been so strongly supporting Hillary Clinton, it’s impossible to think that the Michigan mess wasn’t partly attributable to the Clinton campaign.

After Brewer will be Democratic Senator Carl Levin. Levin has been pushing to break the duopoly of Iowa and New Hampshire for years. In the past, Michigan threatened to go early in the process, but it never did. This year, with support from Granholm and other players in the state (who were with Clinton), Michigan finally jumped the queue.

Then, after Levin, we’ll have the advocates for the two campaigns, and this is where the dynamics between the players gets fun. In 2002, After three terms of ruining the state, Republican Read more