May 31, 2020 / by 


Scott Shane’s Love Affair for Dick Cheney and Kit Bond

The NYT’s Scott Shane presents what pretends to be a comprehensive review of the options for some kind of investigation into Bush era crimes. He reviews four options–a criminal investigation akin to Lawrence Walsh’s Iran-Contra investigation, a congressional investigation akin to the Church Committee, a bipartisan investigation akin to the 9/11 Commission, and nothing aside from currently investigations like the OPR review of Yoo’s and Bradbury’s advocacy on torture.

But there are two very disturbing aspects to his story. 

First, in a review of options for holding what we all know to be Dick Cheney responsible for shredding the Constitution, why would you present such a selective picture of Dick’s own history with efforts to hold Presidents responsible for violating the law?

Many Republicans, however, say the lofty appeals to justice and history mask an unseemly and dangerous drive to pillory the Bush administration and hamstring the intelligence agencies.

That was precisely the view of an aide in Gerald Ford’s White House named Dick Cheney when a Senate committee led by Frank Church of Idaho looked into intelligence abuses in the mid-1970s. A quarter-century later, as vice president, Mr. Cheney would effectively wreak vengeance on that committee’s legacy, encouraging the National Security Agency to bypass the warrant requirement the committee had proposed and unleashing the Central Intelligence Agency he felt the committee had shackled.


But some Republicans saw Mr. Church as a showboat and his committee as overreaching. To Mr. Cheney, the Church legacy was a regrettable pruning of the president’s powers to protect the country — powers he and Bush administration lawyers reasserted after the Sept. 11, 2001, attacks.

Shane’s claims about Cheney’s views are odd. He bases his characterization on no quote from Cheney, though many are readily available. And his first description–the claim that Cheney’s "precise view" of the Church Committee was that it was really about an "unseemly and dangerous drive to pillory the [Nixon?] administration and hamstring the intelligence agencies"–seems to contradict his later more accurate claim that Cheney believed the Church committee improperly constrained Presidential powers. Which is it? A personalized attack against one administration and the targeting of intelligence professionals or an attack on Presidential power? Or is Shane suggesting that Cheney’s view of any investigation now would be an attempt to pillory the Bush/Cheney Administration, which is a different stance than his prior position regarding investigations of Presidents?

And then, just as oddly, Shane makes absolutely no mention of the role that Dick Cheney played in the Iran-Contra investigation, as the ranking member of the Congressional investigative committee. Cheney was just as central a figure in defending Reagan’s (and Poppy’s) abuse of power as he was in defending Nixon’s.

What makes the weird approach to Cheney all the weirder is Shane’s mis-citation of Eric Holder on whether or not the Administration would prosecute those who devised the torture program, which Shane uses to set up some kind of equivalency between Poppy pardoning Cap Weinberger (who, after all, was protecting Poppy himself) with Obama’s and Holder’s disinterest in prosecuting those who implemented Cheney’s plan for torture. 

Attorney General Eric H. Holder Jr. said at his confirmation hearing that he, like Mr. Obama, did not want to "criminalize policy differences" by punishing officials for acts they believed were legal. The same language was used in 1992 by President George H. W. Bush when he pardoned six officials charged in the Iran-contra investigation. Mr. Bush called the charges "a profoundly troubling development in the history of our country: the criminalization of policy differences."

Perhaps I’m being overly sensitive to the word "officials" here–which seems to suggest those in some position of authority. But since we’ve already seen Kit Bond try to expand the meaning of Holder’s reference to "intelligence officers" to include political leaders, it seems some precision is worthwhile. Holder has clearly stated he won’t prosecute those who implemented Cheney’s torture (and warrarntless wiretapping, presumably) policy. He has remained non-committal on whether or not Dick Cheney is above the law.

Now, Shane does address this other scenario–prosecuting those, like Yoo, who justified torture, and those, like Cheney, who pushed for the regime (and note his use of "official" again here). But he pretty dismisses that as too hard (notwithstanding Carl Levin’s report which clearly shows the involvement of Rummy in the torture). 

But many legal experts believe that the Justice Department would be hard pressed to prosecute as torture methods that the department itself declared in 2002 not to be torture. And if an important goal is to determine who devised the policies, a push to prosecute might only persuade past officials to lawyer up and clam up. 

This whole story, after all, is about holding Dick Cheney and his minions accountable. And while none of the past examples Shane gives address the possibility of holding Cheney accountable (somehow, Shane ignores the Nixon investigation), he just throws a flaccid, "a push to prosecute [Dick Cheney] might only persuade [him] to lawyer up and clam up."

Really? Dick Cheney? And yes–I met Shane while we were both covering the Libby trial.

Admittedly, Shane’s weird story will probably not affect whether or not we get some kind of investigation into Cheney going forward (though I’ll be curious to see if anyone adopts Shane’s transparently bad logic and "analysis"). But I do find it a rather neurotic expression of a certain unwillingness to describe what is really going on here.

Obama Hates The Truth On Binyan Mohamed

The news last week that President Obama had bought into and signed off on the full boat of shameful state secrets assertion in the case of Binyan Mohamed v Jeppesen Dataplan set off a wave of criticism. Obama came to the criticism the old fashioned way, he earned it by breaking his campaign promise and continuing the wretched excess of unitary secrecy. Obama’s about face, and turn to the dark side of Bush/Cheney secrecy shocked even Ninth Circuit Chief Judge Mary Schroeder when confronted with it at the Mohamed v. Jeppesen Dataplan hearing.

That is the part of Obama’s war on Binyam Mohamed through Bush style secrecy that has been widely reported, but there is much more that is not as well known. It ought to be. From this morning’s Guardian:

A policy governing the interrogation of terrorism suspects in Pakistan that led to British citizens and residents being tortured was devised by MI5 lawyers and figures in government, according to evidence heard in court.

The existence of an official interrogation policy emerged during cross-examination in the high court in London of an MI5 officer who had questioned one of the detainees, Binyam Mohamed, the British resident currently held in Guantánamo Bay. The officer, who can be identified only as Witness B, admitted that although Mohamed had been in Pakistani custody for five weeks, and he knew the country to have a poor human rights record, he did not ask whether he had been tortured or mistreated, did not inquire why he had lost weight, and did not consider whether his detention without trial was illegal.

Mohamed was eventually able to tell lawyers that before being questioned by MI5 he had been hung from leather straps, beaten and threatened with a firearm by Pakistani intelligence officers. After the meeting with MI5 he was "rendered" to Morocco where he endured 18 months of even more brutal torture, including having his genitals slashed with a scalpel. Some of the questions put to him under torture in Morocco were based on information passed by MI5 to the US.

The Guardian has learned from other sources that the interrogation policy was directed at a high level within Whitehall and that it has been further developed since Mohamed’s detention in Pakistan. Evidence of this might emerge from 42 undisclosed US documents seen by the high court and sent to the MPs and peers on the intelligence and security committee (ISC).

To make this crystal clear, similar to what is going on in the Ninth Circuit in Mohamed v. Jeppesen, the High Court in London is being stymied in its inquiry into the criminal torture and abuse of Mr. Binyan Mohamed by a recalcitrant British government that is desperate to conceal its war crimes. But the key part here is how the Brits are concealing, and that is with the direct and active complicity of President Barack Obama and his Administration.

The path of this obstruction is so obnoxious, the Brits must have stolen it right out of Dick Cheney’s playbook. Again from the Guardian:

Lawyers representing Mohamed went to the high court in an attempt to secure the disclosure of the documents, but the court reluctantly refused earlier this month after David Miliband, the foreign secretary, said such a move would damage national security and UK-US relations.

Miliband’s position in the affair came under renewed attack yesterday after it emerged that his officials solicited a letter from the US state department to back up his claim that if the evidence was disclosed, Washington might stop sharing intelligence with Britain. The claim persuaded the high court judges to suppress what they called "powerful evidence" relating to Mohamed’s ill-treatment.

Edward Davey, the Liberal Democrat foreign affairs spokesman, today described the move as possibly "one of the most outrageous deceptions of parliament, the judiciary and the British people. There must be an immediate investigation, with all related correspondence made public."

Edward Davey is right, but what is more outrageous is that the Obama Administration appears to have happily joined in the scurrilous obstruction.

A flurry of letters between the British Foreign Office and the US State Department has revealed that Washington did threaten to withdraw intelligence-sharing with Britain if documents related to the alleged torture of a British terrorism detainee in Guantanamo Bay were made public.

The High Court in London said on Wednesday the Foreign Office had refused to allow the torture documents to be revealed because of a "threat" from Washington to stop sharing intelligence with Britain.

The US warning, related to the case of British detainee Binyam Mohamed, was promptly denied by British Foreign Secretary David Miliband, who insisted that there had been no threat from the US to "break off intelligence co-operation".

Now, I would like to make clear that the immediately above details and quote references letters and communications from last fall through shortly before Obama took office. But the salient fact is that, as with their actions in the wiretapping cases, al-Haramain and Mohamed ve Jeppesen, the Obama Administration has done absolutely nothing to change the egregious policy. They just keep following the Bush/Cheney script and, it would appear, that is still the case after a meeting between Secretay of State Clinton and Millbrand in the first week of February. Perhaps the best evidence of the Obama Administration’s determination to maintain complicity on the bogus obstruction of the case in England occurred last week when one of Binyam’s attorneys sent a letter to Obama:

US defence officials are preventing Barack Obama from seeing evidence that a former British resident held in Guantánamo Bay has been tortured, the prisoner’s lawyer said last night, as campaigners and the Foreign Office prepared for the man’s release in as little as a week.

Clive Stafford Smith, the director of the legal charity Reprieve, which represents Ethiopian-born Binyam Mohamed, sent Obama evidence of what he called "truly mediaeval" abuse but substantial parts were blanked out so the president could not read it.

In the letter to the president [PDF] , Stafford Smith urges him to order the disclosure of the evidence.

Stafford Smith tells Obama he should be aware of the "bizarre reality" of the situation. "You, as commander in chief, are being denied access to material that would help prove that crimes have been committed by US personnel. This decision is being made by the very people who you command."

It is understood US defence officials might have censored the evidence to protect the president from criminal liability or political embarrassment.

The letter and its blanked-out attachment were disclosed as two high court judges yesterday agreed to reopen the court case in which Mohamed’s lawyers, the Guardian and other media are seeking disclosure of evidence of alleged torture against him. Mohamed’s lawyers are challenging the judges’ gagging order, claiming that David Miliband, the foreign secretary, changed his evidence.

That’s right, Mohamed’s attorney was begging for assistance for Mohamed and an order releasing the evidence of Binyam’s torture, and it was censored! Oh, and crickets has been the response from Obama. That is diametrically, and cravenly so, opposed to the new, opposite of Bush/Cheney, open policy Obama promised during his campaign.

President Barack Obama has been in office less than a month, yet has been confronted head on with not one, but two, cases directly involving the life and human rights of Binyam Mohamed. Both cases squarely presented an opportunity for Mr. Obama to make the break from the oppressive rules of secrecy and torture ingrained by the Bush/Cheney regime. On both cases Obama threw his lot in with the secrecy and torture crowd.

Why does President Obama Hate The Truth On Binyan Mohamed?

P.S. – For more on the British Binyman Mohamed case, please visit Valtin for his take.

The Push to Publish the OPR Report

I was wondering when this would come out. After all, one of the advantages of having an easily-used journalist like Mikey Isikoff around is that when someone needs to leak something to increase political pressure, they know whom to go to.

So, those who want to make sure the OPR report damning John Yoo and Steven Bradbury is published in its current "very harsh" form will go to Mikey to make sure the report’s conclusions become public.

According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

But then–Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to the draft, according to the sources. Filip wanted the report to include responses from all three principals, said one of the sources, a former top Bush administration lawyer. (Mukasey could not be reached; his former chief of staff did not respond to requests for comment. Filip also did not return a phone message.) OPR is now seeking to include the responses before a final version is presented to Attorney General Eric Holder Jr. "The matter is under review," said Justice spokesman Matthew Miller.


OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.

And in addition to those pushing to make the report public, there are those–speaking in a voice that sounds remarkably like certain lawyers associated with Dick Cheney–attacking the legitimacy of the report.

"OPR is not competent to judge [the opinions by Justice attorneys]. They’re not constitutional scholars," said the former Bush lawyer. 

David! How’ve you been now that you’ve been separated from your man-sized safe?

There is something downright odd about Mikey’s report. First, he suggests the report started in response to Jack Goldsmith’s complaints about the OLC opinions he was seeing. This, about a report that includes Steven Bradbury, whose key opinions were written in 2005, well after Goldsmith was gone.

Also, Mikey suggests that it would be very unusual for the OPR report conclusions to be shared with the Senate–and potentially, to be made public.

In a departure from the norm, Jarrett also told members of the Senate Judiciary Committee last year he would inform them of his findings and would "consider" releasing a public version.

Except of course, as Mukasey explained to the Senate last year, when Senators request an investigation–which is actually how this report expanded to include the torture opinions–then they get to see its conclusions, under normal procedures.

Of course making it public would be remarkable (though the Senate has been asking for that for some time). Which is why Mikey Isikoff–whose work may increase the pressure to make the report public–is so useful. 

BREAKING: Obama Continues Bush Policy On State Secrets

Earlier this morning, Looseheadprop wrote about the case of Binyam Mohamed, the British subject tortured at the hands of the United States at Gitmo, including having his genitals carved selectively with a scalpel. The Mohamed case is of critical significance for a variety of reasons, not the least of which is the fact that there was an oral argument in the Ninth Circuit Court of Appeals in San Francisco this morning that was to provide a crucial test of the new Obama Administration’s willingness to continue the Bush policy of concealing torture, wiretapping and other crimes by the assertion of the state secrets privilege.

From an excellent article by Daphne Eviatar at the Washington Independent at the end of January:

President Obama’s sweeping reversals of torture and state secret policies are about to face an early test.

The test of those commitments will come soon in key court cases involving CIA “black sites” and torture that the Bush administration had quashed by claiming they would reveal state secrets and endanger national security. Legal experts say that the Bush Department of Justice used whatʼs known as the “state secrets privilege” – created originally as a narrow evidentiary privilege for sensitive national security information — as a broad shield to protect the government from exposure of its own misconduct.

One such case, dealing with the gruesome realities of the CIAʼs so-called “extraordinary rendition” program, is scheduled for oral argument before a federal appeals court in early February. The position the Obama administration takes in this case may be the first major test of its new policies on transparency in government.

Mohamed v. Jeppesen Dataplan, Inc. involves five victims of CIA rendition, or “torture by proxy,” as itʼs also known. Abducted abroad, the men were flown by the CIA to cooperating countries whose agents interrogated them under torture. Because federal officials are usually immune from lawsuits, the men later sued the private aviation data company, Jeppesen — a subsidiary of Boeing, one of the largest federal defense contractors — that
knowingly provided the flight plans and other assistance necessary for the CIA to carry out its clandestine operations.

Well, the news being reported out of Courtroom One in San Francisco is not good and indicates that the Obama Administration has continued the walk of the oppressive shoes of the Bush/Cheney regime and has formally continued the assertion of state secrets.

The best hope for transparency on torture cases, wiretapping cases, and a whole host of illegal Bush/Cheney conduct was for Obama to pull back on the previous policy of concealment via the assertion of state secrets. From the official press release of the ACLU, and their attorney Ben Wizner who argued the case this morning:

The Justice Department today repeated Bush administration claims of “state secrets” in a lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in the extraordinary rendition program. Mohamed et al. v. Jeppesen was brought on behalf of five men who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The Bush administration intervened in the case, inappropriately asserting the “state secrets” privilege and claiming the case would undermine national security. Oral arguments were presented today in the American Civil Liberties Union’s appeal of the dismissal, and the Obama administration opted not to change the government position in the case, instead reasserting that the entire subject matter of the case is a state secret.

The following can be attributed to Anthony D. Romero, Executive Director of the ACLU:

“Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”

The following can be attributed to Ben Wizner, a staff attorney with the ACLU, who argued the case for the plaintiffs:

“We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court.”

In fairness, the Obama DOJ may view this as protecting information on rendition flights, not details of torture; however, the result is the same, and just as heinous. Meet the new boss, same as the old boss.

What Explains Commander Lippold’s Newfound Impatience on the Cole Prosecutions?

Eight and a half years ago, Commander Kirk Lippold’s ship, the USS Cole, was attacked by Al Qaeda. As Richard Clarke explained it in Against All Enemies, the Cole should never have been in Yemen.

For over three years the CSG had been concerned with security at the ports in the region that were being used by the U.S. Navy. Steve Simon had written a scathing report on security he discovered at the Navy pier near Dubai in the United Arab Emirates. Sandy Berger had sent the report to the Secretary of Defense. I had personally crawled around and climbed up into sniper positions at the U.S. Navy facility in Bahrain because of repeated reports that al Qaeda planned to attack there. The Defense Department had fixed the problems in Bahrain and the UAW, but bases weren’t the only points of vulnerability. When the USS Cole was attacked, we were shocked to learn that the Navy was even making port calls in Yemen.

Mike Sheehan, then the State Department representative on the CSG, had summed up our feelings: "Yemen is a viper’s nest of terrorists. What the fuck was the Cole doing there in the first place?"

By late November, the Yemenis provided information to the US that preliminarily tied the attack to Al Qaeda; by late December, the case became stronger. Yet Clinton held back from a response because, the 9/11 Commission reported, CIA and FBI never conclusively tied the attack to Al Qaeda and besides it didn’t seem like Clinton wanted to know anyway.

Clarke recalled that while the Pentagon and the State Department had reservations about retaliation, the issue never came to a head because the FBI and the CIA never reached a firm conclusion. He though they were "holding back." He said he did not know why, but his impression was that Tenet and Reno possibly thought the White House "didn’t really want to know" since the principals’ discussions by November suggested that there was not much WhiteHouse interest in conducting further military operations against Afghanistan in the administration’s last weeks.

The Clinton Administration refused to do what Clarke and Sheehan pushed to do: to retaliate militarily. Soon after Bush was inaugurated, Clarke started pushing for a response again.

In his January 25 memo, Clarke had advised Rice that the government should respond to the Cole attack, but "should take advantage of the policy that ‘we will respond at a time, place and manner of our own choosing’ and not be forced into knee-jerk responses." Before Vice President Cheney visited the CIA in mid-February, Clarke sent him a memo–outside the usual White House document-management system–suggesting that he ask CIA officials "what additional information is needed before CIA can definitively conclude that al-Qida was responsible" for the Cole. In March 2001, the CIA’s briefing slides for Rice were still describing the CIA’s "preliminary judgment" that a "strong circumstantial case" could be made against al Qaeda but noting that the CIA continued to lack "conclusive information on external command and control" of the attack. Clarke and his aides continued to provide Rice and Hadley with evidence reinforcing the case against al Qaeda and urging action.


Rice told us that there was never a formal, recorded decision n ot to relatiate specifically for the Cole attack. Exchanges with the President, between the President and Tenet, and between herself and Powell and Rumsfeld had produced a consensus that "tit-for-tat" responses were likely to be counterproductive. This had been the case, she thought, with the cruise missile strikes of August 1998. The new team at the Pentagon did not push for action. On the contrary, Rumsfeld though that too much time had passed and his deputy, Paul Wolfowitz, thought that the Cole attack was "stale." Hadley said that in the end, the Administration’s real response to the Cole would be a new, more aggressive startegy against al Qaeda.

Yet Roger Cressey thinks the Bush Administration didn’t respond to the Cole simply because it hadn’t happened on their watch.

"During the first part of the Bush administration, no one was willing to take ownership of this," said Roger W. Cressey, a former counterterrorism official in the Clinton and Bush administrations who helped oversee the White House’s response to the Cole attack. "It didn’t happen on their watch. It was the forgotten attack."

From December 17, 2000 forward, the US had confirmation of Rahim al-Nashiri’s role in the Cole bombing. He was protected by the Yemeni Government.

At the time, Yemeni authorities insisted that Nashiri had fled the country before the Cole bombing. But a senior Yemeni official said that was not the case and that Yemeni investigators had located Nashiri in Taizz, a city about 90 miles northwest of Aden, soon after the attack. The official said Nashiri spent several months in Taizz, where he received high-level protection from the government. "We knew where he was, but we could not arrest him," said the official, who spoke on condition of anonymity because he feared retaliation.

He was not arrested until November 2002. Sometime thereafter, al-Nashiri was water-boarded. In 2005, at a time when the CIA was at risk for having violated the Convention Against Torture, the CIA destroyed tapes of Nashiri’s interrogation sessions. He was not charged by the US until July of last year, but by that point, Nashiri had recanted his confession, saying he had confessed because he was tortured (among the things he confessed was that Osama bin Laden had a nuclear weapon).

Meanwhile, Yemen established a virtual revolving door for the Cole participants it had in custody: with show trials, followed by prison escapes. 

Some Yemenis have questioned whether their government has other motives. One senior Yemeni official, speaking on the condition of anonymity, said Badawi and other al-Qaeda members have a long relationship with Yemen’s intelligence agencies and were recruited in the past to target political opponents.

Khaled al-Anesi, an attorney for some of the Cole defendants, said Yemen had rushed to convict them. But he said he is still mystified by the government’s subsequent handling of the case.

"There’s something that doesn’t smell right," he said. "It was all very strange. After these people were convicted in unfair trials, all of a sudden it was announced that they had escaped. And then the government announced they had surrendered, but we still don’t know how they escaped or if they had help."

In other words, there were many things that went wrong in seeking justice for the Cole bombing: the reluctance on the part of both the Clinton and Bush Administrations to retaliate for the bombing, Yemeni refusal to cooperate in any real legal proceedings against the plotters, the taint of evidence the US had gathered through torture.

Yet through all that time, Lippold has apparently only spoken up publicly once, in 2006, when he called for the US to put more pressure on the Yemenis to bring plotters to justice.

That might be because Lippold’s role in the Cole bombing has itself been controversial. Lippold’s initial story–that the boat had been involved in the mooring operation bringing the ship into the port–was quickly challenged. Then, days later, it was reported that the ship had not followed required security procedures in Aden.  The Navy conducted an investigation into his actions, and initial results of the investigation showed that there had been some failures to implement the security plan–though Lippold may have been ordered not to follow all security precautions because of diplomatic concerns. These orders from higher officers, along with DIA warnings that the Navy ignored, may be why the report did not, ultimately, call for any punishment for Lippold; in announcing that decision in one of his last acts as Secretary of Defense, William Cohen attributed blame to the entire chain of command. Yet later that year, Senator Warner criticized the Navy’s decision not to punish Lippold and, when the Navy submitted Lippold for promotion to Captain in 2002, that promotion was not approved by the Senate. Finally, in 2006, later in the year he had called for more pressure on Yemen, his name was finally taken off the promotion list. In the last decade, Lippold has had close working associations with Richard Danzig and Mike Mullen. 

So maybe Lippold has had good reason not to complain publicly about the lack of any real response to the Cole bombing, or about the Bush Administration’s failure to hold either the plotters rounded up by Yemen or the detainees it held in CIA and DOD custody responsible for the bombing–because doing so might hurt his career.

But there’s another reason he may not have been too harsh about the way that the US’ own screw-ups with al-Nashiri have delayed his prosecution: after 9/11, Lippold worked at the Joint Chiefs of Staff crafting detainee policy.

He recently served as Deputy Division Chief and Politico-Military Planner, Joint Chiefs of Staff, Directorate for Strategic Plans and Policy (J-5), War on Terrorism Division, where he was instrumental in crafting detainee policy for the war on terrorism during its initial stages following the 9/11 attacks. [my empahsis] 

Given that fact, don’t you think it rather remarkable that on the very day that a Bush dead-ender judge defied Obama’s request for a delay in al-Nashiri’s trial, Lippold was ready at hand to strongly attack Obama’s decision to shut down Gitmo?

‘We shouldn’t make policy decisions based on human rights and legal advocacy groups,” retired U.S. Navy Cmdr. Kurt Lippold said in a telephone interview. "We should consider what is best for the American people, which is not to jeopardize those who are fighting the war on terror — or even more adversely impact the families who have already suffered loses as a result of the war."


On Thursday, Lippold called Pohl’s decision "a victory for the 17 families of the sailors who lost their lives on the USS Cole over eight years ago.”


But Lippold also denounced suggestions that the Pentagon official who oversees the Guantanamo legal cases, Susan J. Crawford, could withdraw the charges, without prejudice, which would allow them to be reinstituted later, should the administration want.

That move, Lippold said, would be "a tragic, politically based mistake. We are now politicizing the war on terrorism . . . an order of magnitude worse than anything we’ve done."

"If she decides to drop all charges against detainees simply so that the president’s executive order could be followed that smacks of undue command influence and politics," Lippold said.


"I don’t think we should close Guantanamo Bay until we have some process in place, until we understand the impact of closing it, until there is a much more robust review by the international community on how to deal with these detainees," he said. "To bring them to the U.S. and give them the same constitutional rights that we as American citizens have earned is an affront to the decency of these families and should absolutely not be allowed."

And voila, here we have him doing to the cable news circuit, appearing on this morning’s Morning Joe.

Of course, both McClatchy and Morning Joe failed to mention Lippold’s role in crafting detainee policy, something that seems just as central to his objections to Obama’s policies as his role as Commander of the Cole.

Interestingly, Lippold’s newfound impatience on the Cole prosecutions appears to coincide with his very recent engagement with Military Families United (his association with the group was announced to their Facebook group on February 2).

I’ve recently become associated with a group called Military Families United that truly represents the families of Blue and Gold Star folks that are out there, defending our freedom worldwide.

Military Families United popped up last summer and has fought for some important policies–like improved veterans care. But one of the goals of the 501c4 appears to be to brand Obama’s action–which in the case of ending torture will make members of the military safer around the world–as soft on terrorism. How handy for them, then, they they found someone who had been involved in crafting policy at Gitmo whom they could present, instead, as someone with no more interest than avenging the Cole attack? And how handy that that dead-ender judge made al-Nashiri’s prosecution the contentious issue.

I expect we haven’t heard the last of Commander Lippold.

Conyers Invokes the CIA Inspector General Report on Torture

In a HuffPo column arguing for a Commission to look into Bush era crimes, John Conyers mentions something people on the Hill rarely talk about: the 2004 CIA Inspector General report on torture.

Nor do I agree that the relevant facts are already known. While disparate investigations by Committees of congress, private organizations, and the press have uncovered many important facts, no single investigation has had access to the full range of information regarding the Bush administration’s interrelated programs on surveillance, detention, interrogation, and rendition. The existence of a substantially developed factual record will simplify the work to come, but cannot replace it. Furthermore, much of this information, such as the Central Intelligence Agency’s 2004 Inspector General report on interrogation, remains highly classified and hidden from the American people. An independent review is needed to determine the maximum information that can be publicly released.

Conyers links to this Jane Mayer interview about the report by way of explaining the significance of the report.

One of the lingering mysteries in Washington has been what happened to the CIA internal probe into homicides involving the program. You note that CIA Inspector General (IG) John Helgerson undertook a study and initially concluded, just as the Red Cross and most legal authorities in the United States and around the world, that the program was illegal and raised serious war crimes issues. Helgerson was summoned repeatedly to meet privately with Vice President Cheney, the man who provided the impetus for the program, and it appears as a result of these meetings the IG’s report was simply shut down. Would those probes have brought into question the Justice Department’s specific approval of torture techniques used by the CIA–approval that involved not just John Yoo, but much more specifically Michael Chertoff and Alice Fisher, the two figures who ran the criminal division?

The fact that John Helgerson—the inspector general at the CIA who is supposed to act as an independent watchdog—was called in by Cheney to discuss his tough report in 2004 is definitely surprising news. Asked for comment, Helgerson through the CIA spokesman denied he felt pressured in any way by Cheney. But others I interviewed have described the IG’s office to me as extremely politicized. They have also suggested it was very unusual that the Vice President interjected himself into the work of the IG. Fred Hitz, who had the same post in previous administrations, told me that no vice president had ever met with him. He thought it highly unusual.

Helgerson’s 2004 report had been described to me as very disturbing, the size of two Manhattan phone books, and full of terrible descriptions of mistreatment. The confirmation that Helgerson was called in to talk with Cheney about it proves that–as early as then–the Vice President’s office was fully aware that there were allegations of serious wrongdoing in The Program.

We know that in addition, the IG investigated several alleged homicides involving CIA detainees, and that Helgerson’s office forwarded several to the Justice Department for further consideration and potential prosecution. The only case so far that has been prosecuted in the criminal courts is that involving David Passaro—a low-level CIA contractor, not a full official in the Agency. Why have there been no charges filed? It’s a question to which one would expect that Congress and the public would like some answers. Sources suggested to me that, as you imply, it is highly uncomfortable for top Bush Justice officials to prosecute these cases because, inevitably, it means shining a light on what those same officials sanctioned. Chertoff’s role in particular seems ripe for investigation. Alice Fisher’s role also seems of interest. Much remains to be uncovered.

There’s more (badly transcribed) from Mayer’s book here, and here’s an earlier post reflecting on ties between the report and the destruction of the torture tapes.

Now, Conyers’ mention of the IG report takes up just one line in a larger argument in favor of an independent Commission (click through to read the whole thing), so it’s not like he is focusing exclusively on this report. But, as I said before, when I’ve raised this report with staffers on the Hill they usually just look at me blankly, without acknowledging that such a report exists (or existed). Heck, Conyers himself barely mentions the report in his almost 500-page report on Bush’s abuse of power (see page 128 for what I believe is the only reference to the CIA IG report).

And yet Conyers links to an account of the report that focuses on the role of Michael Chertoff and Alice Fisher–as DOJ officials, solidly in the jurisdiction of the House Judiciary Committee–as the prime example of secrets that remain hidden behind classification practices. 

That sure seems to support my suspicion that the report is one key to unraveling the Bush Administration authorization of–and subsequent cover-up of–torture.

About those Missing OLC Opinions

(Note: I’m scheduled to be on Mark Levine’s Inside Scoop today at 5PM ET. You can listen in here.)

Okay okay already. Here’s your damn missing OLC opinion post.

As a number of you have pointed out, ProPublica did a very cool database of all the OLC opinions on executive power, torture, and warrantless wiretapping that we know of. The database collects in one place, in sortable form, the opinions that track Bush’s abuse of power. 

I had done a timeline mapping the warrantless wiretap opinions to known events associated with Bush’s illegal program (though it’s not sortable like the ProPublica one). And don’t forget that John Conyers gave us a very detailed description of that opinion eliminating the 4th Amendment.

The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

Mr. Yoo and Mr. Delahunty concluded that both Article II of the Constitution and the 9/11 use of force resolution would authorize these types of domestic military operations (even though Congress had expressly rejected language proposed by the Administration for the AUMF that would have authorized domestic military operations).292 The memorandum also contains extended discussion of a hypothetical example which posits that a domestic military commander has received information, not rising to the level of probable cause, suggesting that a terrorist has hidden inside an apartment building and may possess weapons of mass destruction. According to the memorandum, not only does the Constitution permit the commander to seize the building, detain everyone found inside, and then interrogate them – all without obtaining any sort of warrant – but information gathered by military commanders in this way could used for criminal prosecution purposes as long as the primary reason for the seizure was the military fight against terrorism and not law enforcement. This memorandum was referenced in a subsequent OLC memorandum for the legal conclusion “that the Fourth Amendment had no application to domestic military operations.”293 [my emphasis]

I had not, however, closely reviewed the ACLU’s list of torture opinions (which is what ProPublica based this on–and don’t forget ACLU has gotten badly stung in the economic crash and could use some love). 

The most intriguing of those opinions is this one:

8/1/02 Jay S. Bybee, Assistant Attorney General, OLC, Determines whether a specific interrogation was torture

Remember, John Ascroft has all but admitted that they started tortuing Abu Zubaydah before the August 1, 2002 Bybee/Yoo memo authorizing water-boarding was completed. I guess while they were troubling Bybee and Yoo, they got them to retroactively declare the torture of Abu Zubaydah not torture.

Curiously, though, they’re still unwillingly to charge Abu Zubaydah and let him speak publicly. I guess that particular memo presumably retroactively authorizing torture isn’t all that sound.

Did Holder Promise No Prosecutions?

As I posted, both Sheldon Whitehouse and Pat Leahy suggest that–even though John Cornyn and others made an inappropriate demand that Holder promise not to prosecute any Bushies–Holder did not make that promise.

But right as that came out, the Moonie Times came out with a Kit Bond interview claiming that Holder had made such promises. (h/t Wigwam)

President Obama’s choice to run the Justice Department has assured senior Republican senators that he won’t prosecute intelligence officers or political appointees who were involved in the Bush administration’s policy of "enhanced interrogations."

Sen. Christopher "Kit" Bond, a Republican from Missouri and the vice chairman of the Senate Select Committee on Intelligence, said in an interview with The Washington Times that he will support Eric H. Holder Jr.’s nomination for Attorney General because Mr. Holder assured him privately that Mr. Obama’s Justice Department will not prosecute former Bush officials involved in the interrogations program.

Mr. Holder’s promise apparently was key to moving his nomination forward. Today, the Senate Judiciary Committee voted 17-2 to favorably recommend Holder for the post. He is likely to be confirmed by the Senate soon.

Sen. Bond also said that Mr. Holder told him in a private meeting Tuesday that he will not strip the telecommunications companies that cooperated with the National Security Agency after the Sept. 11, 2001, attacks of retroactive legal immunity from civil lawsuits–removing another potential sticking point among GOP senators.

In the interview Wednesday, Mr. Bond said, "I made it clear that trying to prosecute political leaders would generate a political firestorm the Obama administration doesn’t need."[my empahsis]

Mind you, I’m not holding my breath for any big prosecutions from the Obama Administration, given his repeated calls to move forward.

That said, I suspect Kit Bond is spinning Holder’s clear statements with regards to those who implemented Bush’s policies into statements about those who crafted Bush’s policies.

Note how Holder answered this question in written RFQs:

Mr. Holder indicated that he would not prosecute any intelligence officers who participated in the interrogation program and who had followed Justice Department guidance.

Prosecutorial and investigative judgments must depend on the facts and no one is above the law, Mr. Holder wrote. But where it is clear that a government agent has acted in ‘reasonable and good faith reliance on Justice Department legal opinions’ authoritatively permitting his conduct, I would find it difficult to justify commencing a full blown criminal investigation, let alone a prosecution.[my empahsis]

Holder gave written assurances about those who relied on John Yoo’s crappy opinions. That’s basically what Arlen Specter said Holder had said in assurances to other Republicans. 

"The gist of" Holder’s stance on the issue, Specter told [TPM’s Elena Schor], "is that if you have an authoritative legal opinion, that’s a defense in terms of mens rea, of intent. That’s a broad generalization. I don’t think you can go any further than that until you examine the specific facts of a case."

But now Kit Bond is out there saying Holder gave him assurances about not just "intelligence officers" (which is what he said in his written response) but "political appointees" and, later, "political leaders."

Now, maybe Holder really did say he wouldn’t go after people like John Yoo and Dick Cheney and others who deliberately violated national and international law. But I think it just as likely (and more typical of Holder’s legalistic style) that Kit Bond is talking out of his ass to pressure Holder to avoid looking into the actions of Bush and Cheney. Hell. Holder hasn’t even been read into the illegal wiretapping program yet. It would be the easiest thing in the world for him to say, "Well, I had no idea that Bush deliberately violated Congress’ law prohibiting any funds from being spent on TIA" if he were to pursue charges.

But if anyone else has any doubts that the Republicans are primarily worried about protecting Bush and Cheney for their law-breaking while President and Vice President, I guess Kit Bond has put that doubt to rest. 

Update: JimWhite had a very productive call with Pat Leahy’s office on this. But since his call with Bond’s office was considerably less productive, I agree with JimWhite that Bond might need to hear from a few more Americans who believe Senate votes should not be premised on promises of non-prosecution. If you’d like to join in, Bond’s office is (202) 224-5721. (Apparently you’re not the only caller trying to give Bond a piece of your mind, so be persistent.)

Also, see Spencer on this as well. 

Scottish Haggis Lives Up to the Name, Backs Holder

Say, are you the least bit surprised that Arlen "Scottish Haggis" Specter has lived up to his name? As in "offal" and "sheep"? Once again? (h/t BSL)

 After making a huge fuss questioning the independence of Eric Holder, Specter just caved and said he’ll support the attorney general nominee.

"I can say with some confidence that there won’t be a successful filibuster," Specter told reporters at a press conference gathered to share his thoughts on Holder in advance of tomorrow’s Judiciary panel vote on the nominee.

Specter added that the strong recommendations Holder received from former FBI director Louis Freeh and former DoJ No. 2 James Comey were influential in swaying his vote.

"At no time did I challenge Mr. Holder’s integrity," the Pennsylvania senator concluded. (But he sure came close, according to Holder himself.) "It was a question of judgment."

Speaking of judgment, Holder also has resolved — to Specter’s satisfaction, at least — the GOP demand that he promise not to prosecute Bush administration intelligence officials who engaged in brutal interrogations at Guantanamo Bay and elsewhere.

"The gist of" Holder’s stance on the issue, Specter told me, "is that if you have an authoritative legal opinion, that’s a defense in terms of mens rea, of intent. That’s a broad generalization. I don’t think you can go any further than that until you examine the specific facts of a case."]

So the kabuki is off, as of tomorrow.

Well, that was nice. NOW can we get back to the business of governing again, little GOP boys?

What Jane Mayer Tells Us about Warrantless Wiretapping

Jane Mayer’s excellent piece on Obama’s Executive Orders banning torture is about just that–the end of the torture regime. (Incidentally, kudos to Greg Craig, whom I beat up yesterday, for giving his first interview to Mayer.) But it offers some useful insight on a debate we’ve been having over the last couple of days–whether or not Obama could have intervened in the al-Haramain trial (and other pending litigation on warrantless wiretapping) in the same way he intervened in the pending habeas petitions.

First, off, Mayer confirms a point I made–that Obama was not about to take on the most politically charged legal decisions in his first day in office.

Moreover, Craig noted in his first White House interview that the reforms were not finished yet and that Obama had deliberately postponed several of the hardest legal questions. Craig said that, as he talked with the president before the signing ceremony, Obama was “very clear in his own mind about what he wanted to accomplish, and what he wanted to leave open for further consultation with experts.”

Obviously, one of those questions is how to approach legal consequences for those who ordered torture–or warrantless wiretapping. The EOs Obama signed last week don’t commit him to an approach on that score. Furthermore, he seems inclined to insulate himself from such decisions by putting them in the hands of Eric Holder, to make it a prosecutorial decision. Though Holder has intimated he’d hold both the architects of our torture regime and of our warrantless wiretapping responsible (lucky for him, he could do it all in a giant 2-for-1 deal), I’m not holding my breath on that score. But we won’t know what he’ll do until he becomes Attorney General.

That said, Mayer makes it clear just how much lobbying has gone into Obama’s evolving policy on torture.  She describes a meeting that must have taken place in December 2007 or January 2008 with a bunch of officers–including four star Generals–at which the officers lobbied Obama to end our torture regime. That high-level lobbying continued up until last month. Mayer specifically describes the role of retired Marine General Chuck Krulak who promised to "fly cover" for the Obama Administration after they pushed this through.

Who, might I ask, is doing similar lobbying to restore civil liberties for Americans?

Oh, I know there has been similar lobbying–on the part of civil liberties groups, high profile individuals, and DFH bloggers like you and me. But do we have a Chuck Krulak who will take on those who insist the restoration of our civil liberties (and the prosecution of those who took those liberties away) will be big gift to Osama bin Laden?

And frankly, if there hasn’t been this kind of high level lobbying, what guarantee do we have that Obama is as cognizant of the proceedings before Vaughn Walker as he was of the timing of al-Marri’s case?

And finally, Mayer’s piece raises the question of who is arguing against the efficacy of widespread wiretapping and data mining? She describes a meeting at which high level intelligence advisors confirmed what we all know–that ending torture will not affect our ability to collect intelligence at all.

During the transition period, unknown to the public, Obama’s legal, intelligence, and national-security advisers visited Langley for two long sessions with current and former intelligence-community members. They debated whether a ban on brutal interrogation practices would hurt their ability to gather intelligence, and the advisers asked the intelligence veterans to prepare a cost-benefit analysis. The conclusions may surprise defenders of harsh interrogation tactics. “There was unanimity among Obama’s expert advisers,” Craig said, “that to change the practices would not in any material way affect the collection of intelligence.”

It’s not that we can’t make a similar argument about efficacy. Almost as soon as reports of the program came out, reports of the thousands of hours wasted on "Pizza Hut" leads came out.  The US doesn’t have the means to adequately sort through all the data they’re gathering, and they certainly don’t have algorithms that are effective at picking out the terrorists from the haystacks.

But who is making that argument with us?

And it goes without saying that the telecom lobby–which has made a bucketload of money illegally spying on Americans–will be hyping the efficacy of doing so on its part.

All of which goes to show that–even for the noted efforts with Obama’s own facebook infrastructure–we probably don’t have the political might yet that is behind the fight against torture. That may mean we’ll just have to wait until Obama gets around to it, or it may mean we will lose the fight. But we need to be cognizant of what has worked to get Obama’s opposition to toture where it is.

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