Senate Judiciary Hearing on Torture

 Here’s the committee stream.

Whitehouse: [link] Winston Churchill, truth always attended by bodyguard of lies. Sordid truth of torture accompanies by bodyguard of lies. Lies are legion. Bush told us America does not torture. Cheney agreed that waterboarding a dunk in the water. Former CIA said waterboarding once. Waterboarding determined to be legal, but not told how badly law ignored and bastardized, how furiously lawyers rejected OLC opinions. Couldn’t second-guess CIA officers, now told led by contractors with a profit motive. [Enters Hayden statement on experience of torturers into record] I believe Judge Mukasey and General Hayden owe experienced interrogators an apology. Example of Zubaydah is false, as information given before torture. No accounting of wild goose chases. Legislators can’t declassify. Though many of us in Congress knew lies were false, we could not reply. You criminalize conduct by making it illegal. Prosecution does not criminalize conduct, it vindicates it. First of series of hearings. I hope we’ll soon be provided the OPR report, and hold more thorough hearings. How sad it is that there should be an OPR investigation into OLC. Thank Leahy for holding this hearing. Thank Feinstein, leading detailed investigation into Bush’s interrogation program. Ali Soufan. Interviewed al Qaeda terrorists, threats have been documented, avoid photographing his face.

Graham: Nobility of the law or political stunt. I guess if we’re going to talk about evil, we’re going to have to talk about more than just the last Administrations efforts to fight evil. Would we have this hearing if we were attacked this afternoon? Or would we focus on repairing damage and staying ahead of enemy. We need to find out who was told and when. I’m calling for any memos that show information gathered from EIT be made available to the Committee so we can see what worked. Many years after 9/11. The people we’re judging woke up one morning and said, "oh my god, what’s coming next." I’ve been a prosecutor most of my life, I know the difference between political disagreement and a crime. The idea that you’d consult your political opponents with a crime.  As to Army Field Manual, to say that is the only way to interrogate is just not right. Let’s bring CIA director into this hearing, he has already testify he would ask for techniques not in army field manual. Read more

Whitehouse: Laying the Groundwork for the Torture Case

KeithO had Sheldon Whitehouse on this evening to set up his torture hearing tomorrow (10 AM, and yes, I’m liveblogging it). Here’s what Whitehouse said he hopes to accomplish tomorrow.

I hope what America will learn is that the facts that were alleged in the torture memos are very likely not true, the legal theories were contested even by Bush Administration lawyers who weren’t in on the fix, and a little bit about what the consequences are for lawyers who commit professional malfeasance.

I explained how Ali Soufan has (and will) shown that "the facts that were alleged in the torture memos" are not true here:

Ali Soufan, the FBI interrogator described in the DOJ IG report on interrogation as the interrogator (whom they call "Thomas") who called CIA’s tactics on AZ, "borderline torture," has an important op-ed in the NYT. He writes,

One of the most striking parts of the memos is the false premises on which they are based. 

I pointed this out myself, in a post on why the debate over whether these techniques were necessary and effective is so heated.

Check out what the second paragraph of the Bybee Memo says:

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United Stares or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an "increased pressure phase." [my emphasis]

Here’s what Ali Soufan says:

It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Read more

Durbin and Whitehouse: Why Did Mukasey Give OLC a Peek at the Yoo/Bradbury Results?

Dick Durbin and Sheldon Whitehouse want to know why the Office of Professional Responsibility gave OLC a chance to review their report on John Yoo’s and Steven Bradbury’s torture memos.

Just last week, they got a response from DOJ on the process the OPR review has gone through, revealing that the report already integrated comments from Mukasey and "OLC" (whose acting head was Steven Bradbury), and was giving Bradbury, Yoo, and Jay Bybee an opportunity to comment, as well. It will take "substantial time" before this review process is done, DOJ says.

OPR has completed its investigation of this matter and in late December 2008, provided the draft report to Attorney General Mukasey and invited comment. Attorney General Mukasey shared the report with Deputy Attorney General Filip and OLC. Thereafter, Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments, and OPR revised the draft report to the extent it deemed appropriate based on those comments.

In addition, during the course of the investigation, counsel for the former Department attorneys asked OPR for an opportunity to review and comment on the report prior to any disclosure of its results to Congress or the public. Attorney General Mukasey and Deputy Attorney General Filip likewise requested that OPR provide the former Department attorneys with such an opportunity. For these reasons, OPR is now in the process of sharing the revised draft report with them. When the review and comment period is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the Department will determine what disclosures should be made. Due to the complexity and classification level of the draft report, the review process described above likely will require substantial time and effort.

Which of course raises a whole slew of questions, some of which Durbin and Whitehouse have now posed to DOJ. Such as whether OLC’s review of the document influenced Steven Bradbury’s January 15 OLC memo withdrawing certain earlier opinions. 

Your letter does not indicate whether Steven Bradbury was recused from reviewing and providing comments on the draft report.  Mr. Bradbury, who was then the Principal Deputy Assistant Attorney General of OLC, is reportedly a subject of the OPR investigation. Read more

Pixie Dust and Cheney’s Assassination Squads

A number of people, in their discussion of Sy Hersh’s revelation that Dick Cheney directed assassination squads, look to EO 12333 for some guidance on whether such assassination squads are legal or not.

Here’s attytood:

By the way, in case there’s any ambiguity on the subject, President Gerald Ford in 1975 signed an executive order that said this: : "No employee of the United States Government shall engage in, or conspire to engage in, political assassination." It’s been upheld by every subsequent president. Apparently vice presidents are another matter.

And here’s Scott Horton:

The practice of targeted killings is controlled by Executive Order 12333, issued by President Reagan in 1981, which provides “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” There are two exceptions to this rule. One is that as a basic principle of the law of armed combat, it is permitted to strike against the command-and-control apparatus (including both political and military leaders) of a hostile force in connection with armed conflict. The other is that the President may, by special action, authorize such an operation. The operation that Hersh describes almost certainly would have required a presidential finding which concluded that it was in the nation’s national security interest, and authorized the operation to go forward. Hersh suggests that the entire process was delegated to the Vice President, however, which may have required a more extensive modification of E.O. 12333. President Bush issued a complete revamping of EO 12333 on July 30, 2008—and he directed that the details of his revision be withheld from the public. The publicly disclosed text of Bush’s action in 2008 focus on a structural reorganization, bolstering the authority of the intelligence czar, largely at the expense of the director of central intelligence. There has been continuous speculation that Bush also made changes in the operational guidelines on this occasion, or perhaps in an earlier secret order or finding.

Of course, both these discussions assume Executive Orders mean what they say.

But we know they don’t, necessarily. We know that the OLC told George Bush (almost certainly back in 2001 when he was first inventing excuses for his warrantless wiretap program) that:

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Read more

Sheldon Whitehouse Destroys David Rivkin’s “Gallery of Horribles”

As I liveblogged here, the Republican response to Pat Leahy’s proposal to have a Truth Commission on Bush era crimes is to establish a set of straw men and then shoot them down, without ever addressing the problem that a number of high level Administration officials broke the law.

This exchange between Sheldon Whitehouse and designated Republican shill David Rivkin gets to the key aspects of tactic. Rivkin repeatedly introduced his own assumptions into what the Commission would do, all so he point to the constitutional challenges that only his imagined committee would have. And repeatedly during the hearing, Rivkin claimed the whole point of the commission was to select 12 to 13 high level officials and lay out the evidence of their criminal culpability.

I’m curious, though. If Rivkin has such an exact number of Bush Administration officials who broke the law, why hasn’t he called them out himself as prosecution targets? Or has he simply put his Republican affiliation before our Constitution? 

And isn’t it charming that Rivkin is so concerned about the civil liberties of those who in 37 pages claimed to eliminate both the First and Fourth Amendment?

Here’s my liveblogged transcript (with all the errors that implies):

Whitehouse: Rivkin. You raise the gallery of horribles that might go wrong. If you assume that the purpose is advisory in policy only. If you assume that criminal law enforcement is properly cabined in Exec as it should be. If you assume coordination on issues like immunity. And if it is set up not as private entity but as delegated Congressional oversight authority. Still oppose, even in the absence of parade of horribles.

Rivkin: This assumes too much. To me law enforcement function has variety of aspects. Ultimate decision to proceed with prosecution. 

Whitehouse: no one is suggesting otherwise. 

Rivkin: Deciding as threshold determination whom to investigate.

Whitehouse: We do that in COngress every moment.

Rivkin: RIght in Congress.

Whitehouse: Right to delegate.

Rivkin: I do not beleve it is readily delegable.

Whitehouse: Now you use another hedge word. Properly appointed commission.

Rivkin: Appointments clause? If you could configure commission that makes it an extension of Article I branch. I don’t see how you can delegate oversight responsibility. If it walks like a duck and talks like a duck. WE’ve heard today about criminal investigation, PIN does, on 12 or 14 people, then passes the buck to PIN in public spotlight. If this were contemplated in different context, every law professor would be screaming about it.

Read more

The Senate State Secrets Bill

I linked earlier to the House version of the State Secrets Bill. Here’s Leahy’s announcement about the Senate version.

Leading members of the Senate Judiciary Committee have joined together to introduce the State Secrets Protection Act, a bill that provides guidance to federal courts considering cases in which the government has asserted the state secrets privilege. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), Ranking Member Arlen Specter (R-Pa.), and Committee Member Russ Feingold (D-Wis.) joined with former Committee Chairman and Member Edward Kennedy (D-Ma.) to introduce the bill Wednesday.

The legislation was initially proposed in the 110th Congress in response to the government’s assertions of the state secrets privilege in cases challenging the constitutionally of several of the Bush administration’s national security programs, including the warrantless wiretapping, rendition and interrogation programs.

Leahy said, "The State Secrets Protection Act will help guide the courts to balance the government’s interests in secrecy with accountability and the rights of citizens to seek judicial redress. The bill does not restrict the Government’s ability to assert the privilege in appropriate cases. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to delay consideration of this important legislation. I hope all Senators will join us in supporting this bill."

Specter said, "While national security must be protected, there must also be meaningful oversight by the courts and Congress to ensure the Executive branch does not misuse the privilege," Senator Specter said. "This bipartisan legislation provides guidance to the federal courts in handling assertions of the privilege. It is designed to protect state secrets from disclosure, while preventing misuse of the privilege and enabling litigants to achieve justice in court, regardless of which party occupies the White House."

Feingold said, "A country where the government need not answer to allegations of wrongdoing is a country that has strayed dangerously far from the rule of law. We must ensure that the state secrets privilege does not become a license for the government to evade the laws that we pass. This bill accomplishes that goal, while simultaneously providing the strongest of protections to those items of evidence that truly qualify as state secrets."

Senator Sheldon Whitehouse (D-R.I.) and Senator Claire McCaskill (D-Mo.) are also cosponsors of the legislation. The Leahy-Specter-Feingold-Kennedy legislation would:

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

Change Pixie Dust We Can Believe In

Apparently, Greg Craig (who IMHO thus far is batting about 0-3 in his tenure as White House Counsel, counting his erroneous response on FISA, his juvenile cover-up of Rahm’s calls, and his response to the botched Oath) believes in Pixie Dust.

A day before Obama signed executive orders closing Guantánamo Bay and banning torture, the White House’s top lawyer privately indicated to Congress that the new president reserved the right to ignore his own (and any other president’s) executive orders. In a closed-door appearance before the Senate intelligence committee, White House counsel Gregory Craig was asked whether the president was required by law to follow executive orders. According to people familiar with his remarks, who asked for anonymity when discussing a private meeting, Craig answered that the administration did not believe he was. The implication: in a national-security crisis, Obama could deviate from his own rules. A White House official said that Craig’s remarks were being "mischaracterized." [my emphasis]

Note Craig said this in response to a question–presumably from one of the Senators. As a reminder, both Sheldon Whitehouse and Russ Feingold sit on the SSCI. They’re the two guys trying to legislate away this kind of Pixie Dust, the claim that the President can just ignore his own executive orders. Whitehouse, of course, is the guy who first pointed out the way Bush had used Pixie Dust to wish away Saint Ronnie’s prohibitions on spying on Americans. And Whitehouse asked this very question of Michael Mukasey before he was confirmed, only to have Mukasey flip-flop on it as Attorney General. 

So I’m guessing that the question, at least, was asked by Whitehouse with Feingold the second most probable.

Someone ought to tell Mr. Greg "0-4" Craig, though, that once you espouse Pixie Dust you’ve lost all credibility to claim your remarks were "mischaracterized." 

Whitehouse: We Have to Look Back

This speech from Senator Whitehouse is a nice follow-on to this conversation. This is just a highlight–the whole thing is worth reading.

President Obama looks to that future. Given the depth and severity of those predicaments, we need all his energy to look forward to lead us to that brighter day; forward to what Winston Churchill in Britain’s dark days called those "broad and sunlit uplands."

But, as we steer toward this broad and sunlit future, what about the past? As the President looks forward and charts a new course, must someone not also look back, to take an accounting of where we are, what was done, and what must now be repaired.


In short, when you have pervasive infiltration into all the halls of government – judicial, legislative, and executive – of the most ignoble forms of influence; when you see systematic dismantling of historic processes and traditions of government that are the safeguards of our democracy; and when you have a bodyguard of lies, jargon, and propaganda emitted to fool and beguile the American people…

Well, something very serious in the history of our republic has gone wrong, something that dims the light of progress for all humanity.


If we blind ourselves to this history, if we pull an invisibility cloak over it, we will deny ourselves its lessons. Those lessons came at too painful a cost to ignore. Those lessons merit discovery, disclosure and discussion. Indeed, disclosure and discussion is the difference between a valuable lesson for the bright upward forces of our democracy, and a blueprint for darker forces to return and do it all over again.

A little bright, healthy sunshine and fresh air, so that an educated population knows what was done and how, can show where the tunnels were bored, when the truth was subordinated; what institutions were subverted; how our democracy was compromised; so this grim history is not condemned to repeat itself; so a knowing public in the clarity of day can say, "Never, never, never, again;" so we can keep that light – that light that is at once America’s greatest gift and greatest strength – brightly shining. To do this, I submit, we must look back.

I’ll have a second YouTube from my conversation with Whitehouse up–though probably not until tomorrow–in which he addresses how we should look back with respect to torture.

Emptywheel to Senator Whitehouse: We Only Have 7 Weeks to Indict Bush

Two and a half weeks ago, bmaz predicted that the Bush Administration would appeal Judge Vaughn Walker’s ruling requiring the Bush Administration to turn over a document that likely proves they violated FISA by wiretapping American citizens. Sure enough, on Friday and Monday, they did so.

In a parting shot, the Bush administration’s Justice Department shrugged off a San Francisco federal judge’s order to make a classified document available to lawyers for an Islamic group challenging the legality of the outgoing president’s secret wiretapping program.


Chief U.S. District Judge Vaughn Walker ruled Jan. 5 that Al-Haramain could proceed with its case, saying government statements showed that the group had probably been wiretapped.

Walker said he would examine the classified document to see whether it showed that federal agents intercepted the calls without a warrant, a ruling that would allow him to decide the legality of the surveillance program. He ordered the Justice Department to let the group’s lawyers see the document, after they obtain security clearances, so they can argue their case while keeping the contents secret.

In Monday night’s filing, Justice Department lawyers asked Walker to suspend his ruling while they appeal, and said the National Security Agency has decided the Islamic group’s lawyers have no need for the document.

"Under normal clearance procedures, the NSA would decide – not the court – whether the plaintiffs’ counsel should receive access to any classified information," department lawyers wrote.

Between that appeal and Arlen "Scottish Haggis" Specter’s highly unusual one-week hold on Eric Holder’s nomination yesterday, it sure does look like my theory–that Republicans are trying to delay the time when a Democrat takes over DOJ and starts reviewing Bush Administration actions and considering prosecutions.

In particular, I believe, they are delaying Holder’s nomination to shorten the time between the day Holder takes over and the day the statute of limitations on violations of FISA Bush committed on March 11, 2004 start to expire–that is, March 11, 2009, just seven weeks away.

At yesterday’s Progressive Media Summit, I had an opportunity to remind Senator Sheldon Whitehouse of that timeline. I reminded him, too, that Bush seems intent on delaying the time when an Article III judge assesses the evidence in the al-Haramain document, which probably proves Bush broke the law.  

I don’t know whether Senate Dems can do anything to short-circuit Republican efforts to run out the clock. Read more