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Philip Zelikow Saves Condi Rice’s Hiney (Again)

Back in April 2009, former State Department Counselor and all-around Condi Rice fixer Philip Zelikow revealed that “in 2005,” he had written a dissent to Steven Bradbury’s 2005 Memo finding the torture program complied with the Convention against Torture, but that most copies of it had been destroyed by the Administration.

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that:  The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives.

It turns out that David Addington didn’t succeed in destroying all the copies. The National Security Archive just liberated a copy.

Now, the memo (which was actually dated February 15, 2006) reveals Zelikow’s very sane legal argument that our torture program had to comply with the 8th Amendment. But it also reveals some subtleties about the bureaucratic maneuvering around torture. Notably, that Zelikow was trying to save Condi Rice’s arse again.

To understand why, go back to this post (see also this post), explaining what Bradbury was trying to do with his 2005 CAT Memo: respond to explicit concerns raised by Congress (probably Jay Rockefeller) about whether our torture program complied with the CAT. It shows how (as documented in the narrative on the process that Rockefeller released), the Senate Intelligence Committee had forced the Bush Administration to agree to consider whether our torture program violated CAT. The Administration agreed to do so only after the National Security Council–then chaired by Condi Rice–agreed.

According to CIA records, subsequent to the meeting with the Committee Chairman and Vice Chairman in July 2004, the CIA met with the NSC Principals to discuss the CIA’s program. At the conclusion of that meeting, it was agreed that the CIA would formally request that OLC prepare a written opinion addressing whether the CIA’s proposed interrogation techniques would violate substantive constitutional standards, including those of the Fifth, Eighth and Fourteenth Amendments regardless of whether or not those standards were deemed applicable to aliens detained abroad.

DOJ stalled for 10 months. Daniel Levin, as acting head of OLC, approved more individual torture techniques. Levin wrote an unclassified memo ignoring CAT. Congress continued to pressure. The Administration laterally transferred Levin because he wasn’t writing the memos they wanted, authorizing combined techniques and waterboarding and, somehow, finding that torture program complied with CAT. Bradbury got the job to write those memos. And then, finally, 10 months after SSCI demanded that DOJ consider CAT, Bradbury wrote his memo finding that the torture program did not violate CAT’s prohibition against cruel, inhuman, or degrading treatment.

I lay out in the post the specious tricks Bradbury pulled to make that claim, and scribe laid out the legal reasons the arguments were so specious. But in specific regard to SSCI’s demand that OLC review whether the program complied with the Fifth, Eighth, and Fourteenth Amendment, Bradbury punted by saying it didn’t have to, and certainly didn’t have to comply with the Eighth.

Based on CIA assurances, we understand that the interrogations do not take place in any … areas over which the United States exercises at least de facto authority as the government. … We therefore conclude that Article 16 is inapplicable to the CIA’s interrogation practices and that those practices thus cannot violate Article 16.

[snip]

Because the high value detainees on whom the CIA might use enhanced interrogation techniques have not been convicted of any crime, the substantive requirements of the Eighth Amendment would not be relevant here, even if we assume that Article 16 has application to the CIA’s interrogation program.

After reading drafts of such bullshit, Jim Comey tried to convince Bradbury to fix it–to no avail.

Of note, however, here’s what then Attorney General Alberto Gonzales said Condi–who had become Secretary of State in the interim–had to say about the importance of complying with our treaty obligations.

The AG began by saying that Dr. Rice was not interested in discussing details and that her attitude was that if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for detailed policy discussion.

And so, with the Secretary of State dismissing treaty obligations by saying “that ended it,” torture got approved for use by the Executive Branch again.

Zelikow’s memo admits that State didn’t object to Bradbury’s memo.

The State Department agreed with the Justice Department May 2005 conclusion that [Article 16] did not apply to CIA interrogations in foreign countries.

Now, Zelikow claims that passage of the McCain amendment–which was signed on December 30, 2005–is what changed the State Department’s interpretation. Read more

McCain, Lieberman and Graham Attempt to Revive Mass Delusion on Afghan “Success”

Where is this "success" which McCain, Lieberman and Graham tout?

In yesterday’s post, I pointed out the craven political decision to delay a strategic reassessment of the war strategy in Afghanistan until after the election in November. Just in case that was not enough stupidity already emanating out of Washington regarding Afghanistan, today we have the collected wisdom of John McCain, Joe Lieberman and Lindsey Graham informing us that not only is there success in the war effort in Afghanistan, but the US must listen closely to them in order to sustain that success. In preparation for reading the recommendations from our trio of uninvited experts, it is useful to look once again at the accompanying chart, where we see the steady increase in violent events in Afghanistan. The surge of troops in early 2010 did not reverse the trend of increasing violence. In fact, violence jumped by an even larger amount in the first year of the surge than in previous years. No benefit of the surge accrued in 2011, either, as the number of violent events continued to increase.

But McCain, Lieberman and Graham would have us believe that there is “success”:

Significant military progress has been made in Afghanistan — progress that we have personally witnessed over repeated visits. Four years ago, southern Afghanistan was overrun by the Taliban, and our coalition lacked the resources and the strategy necessary to break their momentum. Today, that situation has been reversed, thanks to the president’s surge of forces, the leadership of talented military commanders, and the courage and perseverance of our troops.

Similarly, our effort to build the Afghan National Security Forces — which was under-resourced and disorganized four years ago — has been overhauled. Growing numbers of Afghan units are increasingly capable of leading the fight.

Of course, given the current clusterfuck that is reality in Afghanistan, our mentors of mendacity were forced to open their piece with a nod to the growing desire by most Americans to get out sooner rather than later:

A series of tragic events in Afghanistan has increased the desire of a war-weary public to end our mission there. As heart-wrenching as these events have been, they do not change the vital U.S. national security interests at stake in Afghanistan, nor do they mean that the war is lost. It is not. There is still a realistic path to success if the right decisions are made in the coming months.

And just what is the “realistic path to success” that is being offered for our consideration? Read more

David Gregory & NBC Give John McCain Blowjob; Screw Americans

Saturday evening, the New York Times put up an important editorial, The Banks Win Again, on its website regarding the financial crisis, an editorial piece that would be key in their Sunday Morning Edition Opinion Section:

Last week was a big one for the banks. On Monday, the foreclosure settlement between the big banks and federal and state officials was filed in federal court, and it is now awaiting a judge’s all-but-certain approval. On Tuesday, the Federal Reserve announced the much-anticipated results of the latest round of bank stress tests.

How did the banks do on both? Pretty well, thank you — and better than homeowners and American taxpayers.

That is not only unfair, given banks’ huge culpability in the mortgage bubble and financial meltdown. It also means that homeowners and the economy still need more relief, and that the banks, without more meaningful punishment, will not be deterred from the next round of misbehavior.

The nation is on the cusp on having the government, both federal and states, sign off on arguably the biggest financial fraud on the American public in history, and doing so in a way that massively rewards the offending financial institutions and refuses serious investigation, much less prosecution, of any participants perpetrating the conduct. This pattern of craven conduct cratered not just the US economy, but most of the world economy.

In the face of all this, David Gregory and MTP had on the Sunday morning show one of the most senior Senators in the United States Senate, John McCain, who serves as a key member of both the Governmental Affairs and Health, Education, Labor and Pensions Committees, both of which Read more

Rick Snyder: “Look at Me!!! And, Oh, BTW, Mitt Was Born in MI”

I was pretty gleeful when Romney’s folks hinted yesterday that Rick Snyder was going to endorse today. While Snyder’s approval levels are improving from abysmal levels, he’s still unpopular. Plus, he’s a rich man from liberal Ann Arbor; Snyder’s own biography will emphasize precisely the things conservatives distrust in the rich Governor from liberal MA. Most of all, it raises the likelihood we’ll have a replay of 2000, when McCain won the primary here largely because people saw it as a way to damage Governor John Engler, who had aggressively campaigned for George W. Bush.

Boy, the party must have pushed Snyder hard to endorse here, because there’s little upside to it for him.

I’m even more amused now that I’ve read what Snyder said in his endorsement.

The whole endorsement is just over 600 words long. Of that, the first 62 words blather about Snyder, not Mitt. After a transition finally bringing him around to Mitt, Snyder spends the first 130 words of his description of Mitt to explain that Mitt was born here.

Let’s start with one important fact. Our country has never elected a president born and raised in Michigan. Mitt Romney was born in Detroit. His father served with distinction as governor. Before that, he was president of American Motors. Mitt grew up with the prospects of the auto industry and of Michigan discussed around the dinner table.

He has deep ties to our state. Mitt understands the challenges confronting Michigan as few Americans do.

Snyder spends a paragraph transitioning back to MI again (effectively saying, “Mitt’s a businessman like me”–which brings me back to my earlier point about how Snyder will emphasize the reasons the GOP base is suspicious of Mitt). Here’s where it gets interesting: Snyder, as he often does, claims credit for things he had little to do with (notably, MI’s turnaround), and then says Obama–who should get some credit for it–is screwing up nationally.

Michigan has laid out an impressive game plan for success. Across both peninsulas, Michiganians are working together with relentless positive action to move our state forward. We’ve made the tough decisions and bold reforms that are rejuvenating our state, such as restoring Michigan’s fiscal integrity.

By eliminating a nagging $1.5 billion budget deficit last year, we’re now in the position of recommending strategic, long-term investments in priority areas such as education, economic development and infrastructure. Simply put, we’re getting it right and we’re getting it done.

In contrast to Michigan’s blueprint, Washington is still at the drawing board. Deficit spending continues to run rampant. For the first time since World War II, the nation’s total debt burden exceeds the size of our entire economy. With Washington running trillion-dollar annual deficits, our nation’s recovery has been the slowest since the 1930s.

Washington is not on a sustainable course. Mitt Romney will change the direction.

Another quarter of Snyder’s “endorsement” claims credit for himself and promises to put the plans that had been working before he cut them–education and business development–back into place.

Only then, almost two-thirds of the way into his “endorsement,” does Snyder get around to telling Michiganders (actually, he calls us “Michiganians,” which is a bit of a departure for him) why they should vote for Romney–aside from the fact that he was born here and therefore MI might claim credit for him if he were to win. Vote for Romney, Snyder gets around to exhorting after he spends large chunks of his op-ed begging readers first to support him, because Romney will cut taxes and address the deficit and not force all states to adopt RomneyC– I mean, ObamaCare.

I hope all Michiganians will join me in supporting the candidacy of this favorite son of our great state.

It doesn’t exactly read like a full-throated endorsement, even while Snyder’s pitching that Romney will do for the US what Snyder claims credit for doing for MI. More like a squeal of “don’t hurt me!!!!” while reminding us what we already know, that Mitt was born here.

Vote for Mitt Romney, Rick Snyder says, because his accident of birth is one of the best things I can think to say about him.

Mitt Cozying Up to Foreclosure Mill that Got McCain in Trouble

Back in 2008, John McCain’s campaign shacked up with one of MI’s two notorious foreclosure mills, Trott & Trott. That housing situation became rather uncomfortable after the Macomb County GOP Chair asserted, in an on-the-record interview, that Republicans planned to use foreclosure lists to conduct vote-caging.

The chairman of the Republican Party in Macomb County, Michigan, a key swing county in a key swing state, is planning to use a list of foreclosed homes to block people from voting in the upcoming election as part of the state GOP’s effort to challenge some voters on Election Day.

“We will have a list of foreclosed homes and will make sure people aren’t voting from those addresses,” party chairman James Carabelli told Michigan Messenger in a telephone interview earlier this week. He said the local party wanted to make sure that proper electoral procedures were followed.

A couple of weeks after the Democrats sued to prevent the practice, McCain packed up in a hurry and abandoned the state–a state he had won in the 2000 primary.

Apparently, Mitt has the same poor taste in friends as McCain does. Trott & Trott is dumping significant money into Mitt’s SuperPAC and campaign.

A Farmington Hills law firm that represents mortgage giants Fannie Mae and Freddie Mac in foreclosure and eviction cases has contributed $200,000 to a super PAC supporting Republican Mitt Romney for president.

That super PAC, Restore Our Future, has run ads against Romney’s GOP rival Newt Gingrich, attacking his ties to Freddie Mac and accusing him of “cashing in” on the foreclosure crisis.

The Dec. 27 contribution, disclosed Tuesday in a Federal Election Commission filing, was written from the corporate account of Trott & Trott PC. A 2010 Supreme Court decision allows corporations and unions to spend unlimited amounts on independent campaigns to support or oppose federal candidates.

Managing partner David Trott is a member of Romney’s Michigan finance committee. He and his wife also contributed $7,500 to the Romney campaign, and his employees contributed more than $11,000 to Romney.

You’d think Republicans would have learned their lesson in 2008. In one of the states hardest hit by the foreclosure crisis, the support of foreclosure mills like Trott & Trott only  serves to make it clear where Republican loyalties lie–and it’s not with the homeowners hurt by the financial crisis.

We Request to Inform You that You Inform Us We Killed Another Drone Target

I want to follow-up on Jim’s latest drone post–and go back to Greg Miller’s article on drones–to look at the the approval process. A lot of readers of Miller’s article noted this passage, revealing that JSOC continues to avoid the kind of (minimal) oversight that CIA gets.

There is no comparable requirement in Title 10, and the Senate Armed Services Committee can go days before learning the details of JSOC strikes.

But read the whole passage in context.

Within 24 hours of every CIA drone strike, a classified fax machine lights up in the secure spaces of the Senate Intelligence Committee, spitting out a report on the location, target and result.

The outdated procedure reflects the agency’s effort to comply with Title 50 requirements that Congress be provided with timely, written notification of covert action overseas. There is no comparable requirement in Title 10, and the Senate Armed Services Committee can go days before learning the details of JSOC strikes.

Neither panel is in position to compare the CIA and JSOC kill lists or even arrive at a comprehensive understanding of the rules by which each is assembled.

The senior administration official said the gap is inadvertent. “It’s certainly not something where the goal is to evade oversight,” the official said. A senior Senate aide involved in reviewing military drone strikes said that the blind spot reflects a failure by Congress to adapt but that “we will eventually catch up.”

The disclosure of these operations is generally limited to relevant committees in the House and Senate and sometimes only to their leaders. Those briefed must abide by restrictions that prevent them from discussing what they have learned with those who lack the requisite security clearances. The vast majority of lawmakers receives scant information about the administration’s drone program.

In addition to the long-standing problem of JSOC avoiding oversight (and, implicitly, that this notice apparently comes after the fact, when CIA sends a fax over, which is a little late for the Intelligence Committees to weigh in, IMO), Miller lays out the following:

  • No one–not the intelligence committees or even the Gang of Four–gets enough insight into the drone programs to understand how JSOC’s practices differ from CIA’s (this is consistent with what the Gang of Four said about Anwar al-Awlaki’s killing, given that they said they never saw the kill lists)
  • As is typical, the intelligence committee overseers can’t share information from briefings with their colleagues not read into the program (this is how the Bush Administration gutted intelligence committee oversight of the torture and illegal wiretap programs)

But don’t worry, a senior Administration official says, this time, this secrecy is not designed specifically to avoid oversight.

Apparently, this SAO’s interlocutors don’t agree, because the WSJ’s Adam Entous and Siobhan Gorman have a similar story out today, just three days after Miller’s, quoting “current and former administration, military and congressional officials” complaining about oversight gaps.

Read more

Pakistan Withdraws Cooperation From Key Border Posts, McCain and Graham Stir Pot

Pointy heads John ("Get Off My Lawn!") McCain and Lindsey ("Holy Hell!") Graham grab some microphone time in Kabul on July 5, 2010. (ISAFMedia photo)

Although it is now a week and a half since the November 26 NATO attack on two border posts that killed 24 Pakistani soldiers, it appears that the barrage of official statements and official actions is not yet slowing. Despite a Sunday phone call from President Obama to President Zardari that was meant to emphasize cooperation, Pakistan withdrew its representatives today from two of three key border posts that coordinate communications between troops on both sides of the border region. And, as if things weren’t already bad enough with Pakistan boycotting the Bonn conference on the future of Afghanistan, Senators John McCain and Lindsey Graham decided that they should issue their own set of demands for Pakistan.

On Sunday, President Obama made a phone call to Pakistan’s President Zardari.  Here is the statement on the call released by the White House:

Earlier today the President placed a phone call to Pakistani President Asif Ali Zardari to personally express his condolences on the tragic loss of twenty-four Pakistani soldiers this past week along the border of Afghanistan and Pakistan.  The President made clear that this regrettable incident was not a deliberate attack on Pakistan and reiterated the United States’ strong commitment to a full investigation.  The two Presidents reaffirmed their commitment to the U.S.-Pakistan bilateral relationship, which is critical to the security of both nations, and they agreed to stay in close touch.

Even though this statement ends by claiming both presidents “reaffirmed their commitment to the US-Pakistani bilateral relationship”, Pakistan followed that reaffirmation up by withdrawing its cooperation from key border posts that provide coordination and communication:

Pakistan is pulling out troops from two of the three border coordination units at the Pak-Afghan border set-up for communication between Nato and Pakistani troops in retaliation to the Nato November 26 attack, said a report by the The Associated Press. Read more

Efforts to Combat Levin-McCain Don’t Do Anything to Prohibit Indefinite Detention of Americans

When he gets defensive, Carl Levin can be tremendously cantankerous (sometimes that’s a good thing, but not when he’s pushing terrible law like the detainee provisions in the Defense Authorization).

That cantankerous Carl Levin of late started repeatedly invoking Hamdi in response to claims the Levin-McCain language newly subjects American citizens to indefinite detention.

Now, in terms of constitutional provisions, the ultimate authority on the constitution of the United States is the Supreme Court of the United States, and here is what they have said. In the Hamdi case about the issue which both our friends have raised about American citizens being subject to the law of war. “A citizen,” the Supreme Court said in 2004, “no less than an alien, can be part of supporting forces hostile to the United States and engage in armed conflict against the United States. Such a citizen,” referring to an American citizen, “if released would pose the same threat of returning to the front during the ongoing conflict.” And here is the bottom line for the Supreme Court. If we just take this one line out of this whole debate, it would be a breath of fresh air to cut through some of the words that have been used here this morning, one line. “There is no bar to this nation’s holding one of its own citizens as an enemy combatant.” Okay? That’s not me, that’s not Senator Graham, that’s not Senator McCain. That’s the Supreme Court of the United States recently. “There is no bar to this nation’s holding one of its own citizens as an enemy combatant.” [my emphasis]

He’s being insufferable, but when I see claims that the new AUMF language–which actually may impose new limits on the use of the AUMF from the current known usage–is what makes it legal to indefinitely detain US citizens, I’m sympathetic to his stubborn repetition.

This law doesn’t codify indefinite detention. SCOTUS already did that in Hamdi.

I’m sympathetic to Levin’s cantankerous repetition because of what I see as the real problem with those attacking the detainee provisions because they purportedly codify indefinite detention of Americans (as opposed to a range of other superb reasons to oppose the language). None of the supposed fixes to the detainee provisions–neither defeat of the provisions outright nor the Udall Amendment–does a damn thing to limit the indefinite detention of American citizens. Read more

The Gray Lady Calls the GOP Candidates Gray

The NYT had a hysterical editorial calling out the GOP candidates for claiming that waterboarding is not torture.

As hard as it is to believe, the Republican candidates for president seem to have learned very little from the moral calamities of the administration of George W. Bush. Three of the contenders for the party’s nomination have now come out in favor of the torture known as waterboarding. Only two have said it is illegal, and the rest don’t seem to have the backbone to even voice an opinion on the subject.

At Saturday night’s debate in South Carolina, Herman Cain and Michele Bachmann said they would approve waterboarding of prisoners to extract information. They denied, of course, that waterboarding is torture, even though it’s been classified as such since the Spanish Inquisition. “Very disappointed by statements at S.C. GOP debate supporting waterboarding,” Senator John McCain, the 2008 Republican presidential nominee, wrote on Twitter. “Waterboarding is torture.”

[snip]

As empty as Mr. Romney’s remarks were about Iran, his refusal to renounce waterboarding is disturbing. There are few issues that more clearly define a candidate’s national security policy in the 21st century than a position on torture. A few candidates will fight terrorism using the rule of law, honoring the nation’s moral standards to encourage other countries to do the same. Others will defend the United States by promising to extract information from captives using pain and simulating death, degrading the nation’s reputation. That group now includes Mr. Cain, Mrs. Bachmann and Mr. Romney.  [my emphasis]

Oh, I agree with the sentiment. On this issue (aside from Jon Huntsman and Ron Paul) the GOPers are a bunch of immoral thugs.

But I’m rather amused that the editorial page of the NYT–the NYT!!!–is attacking others for refusing to call waterboarding torture.

As Glenn Greenwald noted, here’s what two of the then-editors have had to say about whether waterboarding is torture or not.

New York Times Executive Editor Bill Keller explaining why his newspaper won’t describe Bush interrogation techniques as “torture”:

[D]efenders of the practice of water-boarding, including senior officials of the Bush administration, insisted that it did not constitute torture.

New York Times Washington Bureau Editor Douglas Jehl on why his paper refuses to describe Bush’s waterboarding program as “torture”:

I have resisted using torture without qualification or to describe all the techniques. Exactly what constitutes torture continues to be a matter of debate and hasn’t been resolved by a court. This president and this attorney general say waterboarding is torture, but the previous president and attorney general said it is not. On what basis should a newspaper render its own verdict, short of charges being filed or a legal judgment rendered?

And here’s what the NYT’s spokesperson said in response to a study showing that they had changed their language on waterboarding once the US embraced using it.

“As the debate over interrogation of terror suspects grew post-9/11, defenders of the practice (including senior officials of the Bush administration) insisted that it did not constitute torture,” a Times spokesman said in a statement. Read more

Florida Joining Re-awakening? GOP Voters Against SS-Medicare Cuts, Tea Party Chides Scott Over Ethics

The elections from earlier this week may well go down in history as a watershed event in which voters finally began to understand, and then to overwhelmingly reject, the most extreme elements of Republican views that take the “pro-life” movement into a completely indefensible realm, demonize collective bargaining and promote institutional racism. Developments reported today in Florida indicate that this re-awakening may be spreading, with a survey of Republican voters indicating that they favor withdrawal of troops from Afghanistan and Iraq over cuts to Social Security or Medicare when reducing the deficit and with the Tea Party scolding Governor Rick Scott over his failed campaign promises to institute ethics reforms.

Note first the remarkable result in Ohio.  In a state that provided Barack Obama an election margin of only 51% to 47% over John McCain in 2008, the restrictions on collective bargaining by public employees put in place by Governor John Kasich and a Republican legislature were voted down by a margin of 61% to 39%:

With a beer in his hand and a smile on his face at the We Are Ohio celebration at the Hyatt Regency, Ohio Democratic Chairman Chris Redfern said public workers should not be the scapegoats for the state’s economic problems. “That is the lesson John Kasich must remember after tonight, and if he doesn’t, he’ll be a one-term governor.

“If you overreach, the people will respond. There is no one tonight who could suggest this was about Democrats versus Republicans,” Redfern said, noting the wide margin of defeat. “This is literally about what is right and what is wrong, and what Ohioans feel is important.”

The outcome of the so-called “Personhood Amendment” in Mississippi is no less striking.  In one of the most conservative, anti-abortion states in the nation (won by McCain 56% to 43% in 2008), we learned that just as Kasich and his cronies over-reached on collective bargaining, the Pro-Life movement over-reached in Mississippi, as the measure was defeated 58% to 42%:

Objectors also raised the specter of legal challenges. Most of all, many said, the amendment allowed no exceptions for abortions in cases of incest or rape – a claim not disputed by proponents, who are trying to end abortion in the state.

In a statement from the anti-initiative group Mississippians for Healthy Families, spokeswoman Valencia Robinson said, “… (W)e were successful because Mississippi voters ultimately understood that there is no contradiction in being pro-life and standing in opposition to an initiative that threatened the health and very lives of women.”

And in Arizona, voters recalled Russell Pearce, the author of SB 1070, the “papers please” extremist anti-immigration bill.  Pearce lost to a more moderate Republican by a margin of 53% to 45%: Read more