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

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

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

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

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

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

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

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

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

And this as unlucky conclusion 13:

Secretary of Defense Donald Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there. Secretary Rumsfeld’s December 2, 2002 approval of Mr. Haynes’s recommendation that most of the techniques contained in GTMO’s October 11, 2002 request be authorized, influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity, and stress positions, in Afghanistan and Iraq.

According to the WSJ, proving that Bush and Rummy’s actions led directly to torture equates to "nothing to show for it."

But I’m even more amused by the WSJ’s claims given Levin’s statements to Rachel Maddow on December 17 (linked above).

LEVIN: What I think is our role to do is to bring out the facts which we have to state our conclusions, which we have, which is where the origin of these techniques began. And then to turn over to the Justice Department of the next administration – because clearly this Justice Department is not willing to take an objective look – to turn over to the next Justice Department all the facts that we can, and we have put together, and get our report, the rest of it declassified.

But then it seems to me it is appropriate that there be an outside commission appointed to take this out of politics, that it would have the clear subpoena authority to get to the parts of this which are not yet clear, and that is the role of the CIA.

We looked at the role of the Department of Defense, but the role of the CIA has not yet been looked at, and let an outside commission reach the kind of conclusions which then may or may not lead to indictments or to civil action. But it is not our role, it’s not appropriate for us to make those kinds of – reach those kinds of conclusions. [my emphasis]

Shortly after releasing the conclusions of the "nothing to show for it" investigation, Levin said three things: that Obama’s DOJ should take the conclusions of the report and consider them objectively, that SASC should declassify the balance of its report (meaning that some of the "nothing to show for it" claim can be attributed to BushCo’s unwillingness to declassify embarrassing information), and that "an outside commission" should "get to the parts of this which are not yet clear, and that is the role of the CIA." And those actions, Levin notes, "may or may not lead to indictments or to civil action."

Sure doesn’t sound like a "nothing to show for it" report to me.

But Levin’s statement is significant for a few more reasons. After all, he emphasizes that CIA’s role in this has not been looked at. 

As a reminder, in 2006 when Bush admitted to the torture program, Carl Levin was a senior member of the Senate Intelligence Committee. Now, as the Chair of SASC, he’s an Ex Officio member. Levin was at those briefings that the WSJ reports all SSCI members started getting in 2006. But he says the CIA’s role in this has not been looked at. 

So the WSJ looks at an investigation that–by design–looked solely at torture emanating out of DOD’s chain of command, and says that it found nothing to show for it. The guy in charge of that investigation says the report specifically leaves out CIA’s role. And, since that same guy attended the briefing for the entire SSCI membership in 2006, he either said that knowing what was included in that confidential briefings–or having reason to believe that briefing was incomplete. And, finally, Levin advocates "an outside commission"–precisely the kind the WSJ opposes–to get to those parts which have not been revealed.

Boy, invoking Levin’s investigation sure doesn’t help the WSJ’s case.

Now, back to the WSJ’s invocation of specific Democrats. The WSJ names Bob Graham and Jello Jay (Jello Jay took over from Graham at SSCI in 2003; the WSJ does not mention Reyes, who took over HPSCI in 2007) as having been briefed between 2003 and 2006. But, as I said, it focuses primarily on Pelosi and Harman.

There’s a weird detail about this to begin with. Since BushCo routinely broke the law and only briefed Intelligence Committee leadership (and not Congressional leadership) on these things, Pelosi was only getting briefings through 2002, when she was Ranking Member on HPSCI. The WSJ does date the briefings back to 2002.

According to our sources and media reports we’ve corroborated, the classified briefings began in the spring of 2002 and dealt with the interrogation of Abu Zubaydah, a high-value al Qaeda operative captured in Pakistan.

But then, the timing of the briefings starts to get fuzzy.

In succeeding months and years, more than 30 Congressional sessions were specifically devoted to the interrogation program and its methods, including waterboarding and other aggressive techniques designed to squeeze intelligence out of hardened detainees like Zubaydah.

Followed by a clear timeline again, but this time one that excludes Pelosi.

The briefings were first available to the Chairmen and ranking Members of the Intelligence Committees. From 2003 through 2006, that gang of four included Democrats Bob Graham and John D. Rockefeller in the Senate and Jane Harman in the House, as well as Republicans Porter Goss, Peter Hoekstra, Richard Shelby and Pat Roberts.

In other words, the WSJ curiously includes–and then promptly excludes–Pelosi from participation in the substantive briefings (Graham should be excluded as well, since Jello Jay took over in 2003). That seems to be an admission, on the WSJ’s part, that Pelosi didn’t get the same detailed briefing about methods her successors got–a view reinforced by Pelosi’s own description of the one briefing she got.

On one occasion, in the fall of 2002, I was briefed on interrogation techniques the Administration was considering using in the future. The Administration advised that legal counsel for the both the CIA and the Department of Justice had concluded that the techniques were legal.

I had no further briefings on the techniques. Several months later, my successor as Ranking Member of the House Intelligence Committee, Jane Harman, was briefed more extensively and advised the techniques had in fact been employed. It was my understanding at that time that Congresswoman Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred.

Given the WSJ’s fuzzy sentence–the one that suggests "in succeeding months" Congress was briefed on techniques "including waterboarding," I’d say even the WSJ is not claiming that Pelosi was in the more substantive briefings in which torture was discussed.

Which brings us to Harman’s objection, which the WSJ calls "equivocal."

Ms. Harman did send a one-page classified letter in February 2003 listing her equivocal objections to the interrogation program. She made her letter public in January 2008 after the CIA revealed that it had destroyed some interrogation videotapes. After lauding the CIA’s efforts "in the current threat environment," she noted that "what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions." Ms. Harman also vaguely wondered whether "these practices are consistent with the principles and policies of the United States," but she did not condemn them as either torture or illegal.

But now compare their cherry-picked quotations from Harman’s letter with the full text of that letter.

Last week’s briefing brought home to me the difficult challenges faced by the Central Intelligence Agency in the current threat environment.  I realize we are at a time when the balance between security and liberty must be constantly evaluated and recalibrated in order to protect our nation and its people from catastrophic terrorist attack and I thus appreciate the obvious effort that you and your Office have made to address the tough questions.  At the briefing you assured us that the [redacted] approved by the Attorney General have been subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of Justice and the National Security Council and found to be within the law.

It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions.  I would like to know what kind of policy review took place and what questions were examined.  In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States.  Have enhanced techniques been authorized and approved by the President?

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry.  I would urge the Agency to reconsider that plan.  Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future.  The fact of destruction would reflect badly on the Agency.

I look forward to your response.

Obviously, there’s a reason why Harman didn’t focus on the legal issues: because Scott Muller had done so in his presentation, and had emphasized that DOJ, NSC, and CIA lawyers had all bought off on the techniques. Inexcusable or not, now look at what the WSJ specifically excludes: the questions Harman had posed regarding high level approval by the White House–up to and including George Bush.

Here’s Muller’s non-answer to that question.

As we informed both you and the leadership of the Intelligence Committees last September, a number of Executive Branch lawyers including lawyers from the Department of Justice participated in the determination that, in the appropriate circumstances, use of these techniques is fully consistent with US law. While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch. 

That is, he dodged her question entirely, emphasizing again the legal review that had taken place, but not George Bush’s personal policy review. 

And Harman’s question is precisely the issue before us now, the one that would be investigated by an independent commission (note, even the WSJ uses the word "policy" in describing the commission).

In other words, to make its case that Congress is implicated in torture, the WSJ mischaracterizes the SASC report (and Levin’s response to being briefed at SSCI) and hides Levin’s call for precisely the independent investigation WSJ opposes; it implicates Pelosi when its own timeline doesn’t implicate her; and it cherry-picks Harman’s letter to hide the fact that she was asking–in 2002–precisely the questions that remain to be answered.

Which leaves Bob Graham, who is no longer in Congress and who presumably got the same fuzzy Fall 2002 briefing Pelosi got.

And, finally, (it had to come to this) Jello Jay. Who, not incidentally, may be the only Democrat mentioned in the editorial who actually gets to ask Bair and Panetta questions at their confirmation hearings (I’m double checking on whether Levin gets to ask questions or not; I’m assuming, given his squawking the other day about Panetta, that Jello Jay will remain on SSCI even while moving to Appropriations and ceding the Chair at SSCI). 

The WSJ didn’t waste this entire editorial solely to threaten Jello Jay not to ask Leon Panetta for a Truth Commission, did it? Because this swiss cheese of an editorial surely won’t dissuade someone like Russ Feingold from asking such questions. In fact, why direct these questions to members of SSCI–those who will ask Bair and Panetta questions–in the first place? Last I heard, a Truth Commission was more likely to come out of HJC. And frankly, most of the members of HJC don’t give a rat’s ass about the threats WSJ makes about Jello Jay (though they may well have Pelosi to contend with over the nature of their investigation).

Don’t get me wrong. I have no doubt that Jello Jay, especially, and Harman and Pelosi, to a much lesser degree, are implicated in approving the torture program. But even the WSJ poses this as a policy question that–though they hide the proof that exists–we know was a question Harman asked directly. But what the WSJ is doing here is mischaracterizing all but Jello Jay’s implication in those policies (as far as we know). The whole thing smacks of flailing desperation once you unpack the false claims included in the editorial.l

This report from MSNBC is almost sublimely ironic:

U.S. prosecutors want a Miami judge to sentence the son of former Liberian President Charles Taylor to 147 years in prison for torturing people when he was chief of a brutal paramilitary unit during his father’s reign.
…
A recent Justice Department court filing describes torture — which the U.S. has been accused of in the war on terror — as a "flagrant and pernicious abuse of power and authority" that warrants severe punishment of Taylor.

"It undermines respect for and trust in authority, government and a rule of law," wrote Assistant U.S. Attorney Caroline Heck Miller in last week’s filing. "The gravity of the offense of torture is beyond dispute."
…
Elise Keppler, senior counsel at Human Rights Watch, said Monday that the organization has long pressed for investigations and prosecution of those responsible for torture around the world. The Emmanuel conviction is a big step forward, she said.

"This whole process has sent a message that when it comes to the most serious crimes, there cannot be impunity," Keppler said. "Without a penalty that fits the gravity of the crime, it risks sending a message that these crimes will be tolerated."

Huh. Go figure. I wonder who will prosecute the the denizens of the Bush Administration for the same acts?

I suggested last week that the Republicans have suddenly decided to challenge Eric Holder’s nomination in an attempt to postpone the time when AG Holder (if he is approved) would review the OLC opinions supporting warrantless wiretapping and torture.

It turns out that Patrick Leahy is also worried that BushCo are sitting on OLC opinions it has promised to the Senate Judiciary Committee (h/t Secrecy News).

Even in the final days of the Bush administration, the Department of Justice continues to stonewall congressional subpoenas for documents from the Office of Legal Counsel (OLC), according to the chairman of the Senate Judiciary Committee. Sen. Patrick Leahy (D-Vt.) on Friday underscored the Department’s continued obstruction and hit the Department on going back on its word to provide the Committee with copies of six documents related to a subpoena issued in October for OLC documents.

In a letter dated November 14, Justice Department officials said the Department was "prepared to make available for Committee staff review at the Department" two national security-related OLC opinions subpoenaed on October 21. The Department also wrote that it was "prepared to provide the Committee with copies of additional OLC memoranda on November 17, 2008." Upon receipt of the letter, followed by a verbal assurance on November 17 that the documents were being delivered to the Committee, Leahy postponed the return date of the subpoena, which was scheduled for November 18. To date, the Department has provided the Committee with copies of just two documents, one of which was not listed in the October 21 subpoena and was already widely available in the public domain. The remaining six documents have been made available at the Department only for staff review.

Here’s a list of the OLC opinions the Administration has been playing games with:

A. Memorandum for Alberto R. Gonzales, Counsel to the President, Re "Protected Persons" in Occupied Iraq (March 18,2004).

B. Any final OLC memorandum or written legal advice concerning applicability of the Fourth Geneva Convention in Iraq, including but not limited to Article 49, including any March 19, 2004 memorandum, Re: Applicability of the Fourth Geneva Convention in Iraq, including but not limited to Article 49.

C. Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense ("DoD"), from John C. Yoo, Deputy Assistant Attorney General, OLC, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (October, 2001).

D. Memorandum for Daniel Bryant, Assistant Attorney General, Office of Legislative Affairs, from John Yoo, Deputy Assistant Attorney General, OLC, Re: Applicability of 18 Us.e. §4001 (a) to Military Detention of United States Citizens (June 27, 2002).

E. Memorandum for William J. Haynes II, General Counsel, DaD, from Jay S. Bybee, Assistant Attorney General, OLC, Re: The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (March 13, 2002).

F. Any finalized memorandum from the Department of Justice, Re: Liability of interrogators under the Convention Against Torture and the Anti-Torture Act when a prisoner is not in U.S. custody.

G. Memorandum for John Yoo, Deputy Assistant Attorney General, OLC, from James C. Ho, Attorney-Advisor, OLC, Re: Possible Interpretations of Common Article 3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (Feb. 1,2002), or any other finalized memoranda or opinions provided by the OLC regarding the interpretation of Common Article 3 of the 1949 Geneva Convention relating to the treatment of prisoners of war.

H. Memorandum for Alberto Gonzales, Counsel to the President, from Patrick F. Philbin, Deputy Assistant Attorney General, OLC, Re: Legality of the use of military commissions to try terrorists (Nov. 6,2001).

The administration has provided the last opinion, and one document the Committee didn’t ask for. But it won’t hand over documents A through G (I’m assuming they just claim there is nothing responsive to F), though it’ll let representatives of the committee look at them.

I haven’t read the Philbin opinion they turned over, but it’s clear why OLC hack John Elwood said, "The conclusions of the memorandum have been affected by subsequent case law, most particularly the Supreme Court’s decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006)," as it must form the basis for a lot of the logic that created Gitmo.

We believe that if a particular use of military commissions to try offenses against the laws of war is constitutionally permissible within the United States, it follows a fortiori that such a use is permissible to deal with enemy belligerents overseas, where many constitutional protections would not apply in any event. 

[snip]

We believe that, properly understood, the constitutional analysis in Quirin demonstrates that any person properly charged with a violation of the laws of·war, regardless of citizenship or membership in the armed forces (of this country or another power), may be tried by military commission. The critical point for constitutional analysis is that a person properly charged with an offense against the laws of war has no right to an indictment or trial by jury unoer Article III the Fifth and Sixth Amendments.

[snip]

We note that the Supreme Court’s decision in Quirin also demonstrates that, at least if those charged before a military commission are being held within the territorial United States, they would be able to file a petition for habeas corpus to have an Article III court test whether their cases fell within the jurisdiction of a military commission – that is, whether the offenses charged properly "sets forth a violation of the law of war."

[snip]

But cf Johnson v.Eisentrager, 339 U.S. 763, 787-90 (1950) (holding that the writ of habeas corpus is not available to aliens held outside United States territory)

I’m particularly fond of this logic: Congress has the right to declare war, therefore the President must be able to make the decision about war.

Part of the reason it is difficult to articulate any broadly applicable "test" for determining whether a war exists is that the courts have quite properly concluded that that question (and thus the triggering of the laws of war) is one for the political branches. Early in the Nation’s history the Supreme Court recognized that Congress has authority to acknowledge a state of war, and that its decision to do so, whether formally and fully or partially and by degrees, is not subject to judicial question.

[snip]

We conclude that, even without any action by Congress to acknowledge a state of war, the President, in his constitutional role as Commander in Chief, and through his broad authority in the realm of foreign affairs, see, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), also has full authority to determine when the Nation has been thrust into a conflict that must be recognized as a war and treated under the laws of war.

[snip]

By making the President Commander in Chief of the armed forces, the Constitution must be understood to grant him the full authorities required for him to effectively defend the Nation in the event of an armed attack. Necessarily included among those powers must be the ability to determine whether persons responsible for an attack should be subject to punishment under the laws of war.

Someday, long after this Administration is gone, we might want to think about returning the power to declare war to Congress again. But I suppose that would take Congress asserting that right.

I wonder. Is OLC refusing to turn these over to stall until the time when SCOTUS overrides each and every one of them?

Laura Rozen rocks, and today she rolls up more jaw dropping malevolence and fraud on the part of the Bush/Cheney Administration.

A potentially explosive new court filing by the lawyers for Lakhdar Boumediene and five other Guantanamo detainees suggests that the Bush administration ordered the Bosnian government to arrest and hold the men after an exhaustive Bosnian investigation had found them innocent of any terrorism related activity and had ordered their release, in order to use them as props in Bush’s January 2002 State of the Union speech.

The filing–"Lakhdar Boumediene, et al., Petitioners, v. George W. Bush, President of the United States, et al., Respondents, Petitioners’ Public Traverse to the Government’s Return to the Petition for Habeas Corpus"–lays out the case that the Bush administration threatened at the highest levels to withdraw diplomatic and military aid to the Balkan nation if Bosnia released the men, which its own three-month investigation had found innocent of any terrorism charges in the days leading up to Bush’s January 2002 State of the Union.

Faced with the threats of the withdrawal of aid and that if it released the men, the White House would order NATO troops to detain them, Bosnia transferred the men under duress to the custody of the US government in January 2002. Ten days later, Bush used sixteen words to warn Americans that, in "cooperation" with the Bosnian government, it had captured terrorists who had planned to bomb the US embassy in Sarajevo: "Our soldiers, working with the Bosnian government, seized terrorists who were plotting to bomb our embassy," Bush told the nation.

But, six years later, the detainees’ petition says, after the US Supreme Court has sided with the detainees and ordered the US to give the detainees habeas corpus rights, the Bush administration has failed to repeat the embassy plot charges that Bush used in his State of the Union address, or to produce credible evidence of why the men should be held as enemy combatants.

It is hard to be shocked by these kind of revelations anymore, there has been so much criminal depravity on the part of the Bush/Cheney crew in relation to their torture and sadistic gulag detention programs that it just dulls the senses after a while. And it is not like we didn’t know that the case against Lakhdar Boumediene was bogus; that was evident from the prior litigation that led to the original Supreme Court Boumediene decision. The pleading containing the new allegations is here (pdf). For those of you perplexed by the title of the pleading, a "traverse" pleading is nothing more than a somewhat archaic term for a reply pleading.

The revelation that Boumediene has been, from the outset, about yet another 16 word intentional lie to the American public, and indeed the world, in the hallowed State of the Union Speech, in order to fraudulently gin up the basis for an illegal and immoral war of aggression, is heart stopping and hard to stomach. We already had a 16 word blatant lie by Bush for this purpose. Crikey, how many other 16 word lies are out there?

As I said, we knew the detention and persecution of Boumediene and the others known as the "Algerian Six" was unjustified and unsupportable, but the similarities to the other "16 Word" scandal are striking.

Both cases involved facts that the Bush/Cheney Administration possessed and knew were patently false, and yet cravenly used in the State Of The Union to sell their desire for war of choice and aggression. Both involved bordering Islamic countries in Northwestern Africa. Both were hurriedly put in the SOTU to gin up the war on terror and lay the groundwork for the invasion of Iraq that both Bush and Cheney were jonesing for since before they took office. And both were linchpins in the respective SOTU speeches in 2002 and 2003, seeking to sell and con the public for support by the Bushies.

Repetitive analogous conduct, in similar situations, over time. This is what in the law is known as pattern and practice evidence. Hard to say something is a mistake if you keep making that same "mistake" over and over and over. Well, the Bush/Cheney Administration has a crystal clear pattern and practice of using 16 word snippets of fraud to sell war to the American people. I wonder if Condiliar Rice will blithely laugh off the new "16 Word" fraud as overblown nonsense the way she did the original "16 Word" scandal?

The WaPo reveals that in June 2003, and again in July 2004, the CIA sought and got a memo explicitly authorizing the torture methods used in interrogation.

The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of interrogation techniques such as waterboarding against al-Qaeda suspects — documents prompted by worries among intelligence officials about a possible backlash if details of the program became public. 

The article explains that Tenet felt he needed such memos to make sure the CIA had "top cover" for its actions.

The repeated requests for a paper trail reflected growing worries within the CIA that the administration might later distance itself from key decisions about the handling of captured al-Qaeda leaders, former intelligence officials said.

[snip]

A. John Radsan, a lawyer in the CIA general counsel’s office until 2004, remembered the discussions but did not personally view the memos the agency received in response to its concerns. "The question was whether we had enough ‘top cover,’ " Radsan said. 

[snip]

The CIA’s anxiety was partly fueled by the lack of explicit presidential authorization for the interrogation program.

[snip]

By the spring of 2004, the concerns among agency officials had multiplied, in part because of shifting views among administration lawyers about what acts might constitute torture, leading Tenet to ask a second time for written confirmation from the White House.

But at that point, the story gets all vague. What the CIA was seeking, obviously, was a document signed by someone other that John Yoo, someone whose ass would be on the line along with the CIA if the torture program became public. That document would presumably implicate at least top aides to Bush, if not Bush himself. But the WaPo doesn’t describe who that person is.

Days later, he got what he wanted: a brief memo conveying the administration’s approval for the CIA’s interrogation methods, the officials said. Administration officials confirmed the existence of the memos, but neither they nor former intelligence officers would describe their contents in detail because they remain classified. 

[snip]

Finally, in mid-July, a memo was forwarded to the CIA reaffirming the administration’s backing for the interrogation program. Tenet had acquired the statement of support he sought. 

I’ve updated the torture timeline, and the timing is fascinating (the second memo came, for example, just after Goldsmith and Olson left DOJ, as well as–as the story makes clear–at the same time as Tenet’s departure; plus, this correlates closely with the CIA IG’s report on torture). But that doesn’t really clarify the big question raised by the WaPo article, either.

Did George Bush sign a memo authorizing torture?

Update: See Marty Lederman’s musings on the legal necessity (or not) of having the Commander-in-Chief’s signature on a piece of paper. He provides one potential explanation of something I was wondering about: the claim that DOJ opposed issuing a memo in June 2004, when presumably Comey and Goldsmith were actively part of the discussion.

Here’s what Alberto Gonzales thought was so sensitive, he illegally kept it in an unsecure safe and brought it back and forth to work in his briefcase.

The classified materials that are the subject of this investigation consist of notes that Gonzales drafted to memorialize a classified briefing of congressional leaders about the NSA surveillance program when Gonzales was the White House Counsel; draft and final Office of Legal Counsel opinions about both the NSA surveillance program and a detainee interrogation program; correspondence from congressional leaders to the Director of Central Intelligence; and other memoranda describing legal and operational aspects of the two classified programs. 

[snip]

Gonzales told the OIG that President Bush directed him to memorialize the March 10, 2004, meeting. [ed. Note, contrary to one of the press reports, it does not appear that Bush was at the meeting–though Cheney was.] Gonzales stated that he drafted notes about the meeting in a spiral notebook in his White House Counsel’s Office within a few days of the meeting, probably on the weekend immediately following the meeting. Gonzales stated that he wrote the notes in a single sitting except for one line, which he told us he wrote within the next day. Gonzales said that his intent in drafting the notes was to record the reactions of the congressional leaders during the meeting, as opposed to recording any operational details about the program that were discussed. In the notes, Gonzales listed who was present, followed by a general summary of the briefing given to the congressional leaders by intelligence agency officials, and the congressional leaders’ responses to the briefing. However, Gonzales’s summary also referenced TS/SCI operational aspects of the program by his use of specific terms associated with the program. The notes also included the SCI codeword used to identify the program. [my emphasis]

[snip]

The two envelopes contained a total of 17 separate documents. The envelope containing documents related to the NSA surveillance program bore the handwritten markings, "TOP SECRET – EYES ONLY – ARG" followed by an abbreviation for the SCI codeword for the program. The envelope containing the documents relating to a detainee interrogation program bore classification markings related to that program. Each document inside the envelopes had a cover sheet and header-footer markings indicating the document was TS/SCI. The documents related to the NSA surveillance program discussed in Gonzales’s handwritten notes as well as to a detainee interrogation program. The documents included Office of Legal Counsel opinions that discuss the legal bases for various aspects of the compartmented programs, memoranda summarizing the operational details of the programs, correspondence from congressional Intelligence Committee leaders to Director of Central Intelligence Hayden about one of the TS/SCI programs, a "talking points" memorandum about one of the compartmented programs, and a draft legal declaration of a high-ranking intelligence agency official relating to the NSA surveillance program. [my emphasis]

In general, it seems that this little treasure trove of documents comprised ones that concern programs so sensitive that Gonzales side-stepped all normal document management systems, because he was worried the SCI storage at DOJ would not be secure enough. He chose to keep these documents in a manner that made them more accessible to enemies of the state, because he didn’t trust highly-vetted employees within the DOJ.

And what were the two programs so sensitive he needed to keep documents out of the hands of those who had access to the SCIF down the hall from his office in DOJ? The illegal wiretap program and–almost certainly–the torture program. Alberto Gonzales compromised the security of these programs because he didn’t want any of the highly vetted people with access to an SCIF safe to see evidence of the documentation behind two illegal programs.

The March 10 Document as a Record of Congressional Complicity

Looking more specifically, it appears my original guess was correct–that Gonzales’ notes from the March 10 meeting with the Gang of Eight was designed to record their complicity in the Administration’s illegal wiretapping. We know from the report that when several Democrats disputed Gonzales account of the March 10 briefing, he started sharing the notes with the White House Counsel’s office–so he in fact did use those documents to protect himself, at least (remember, he was risk of perjury charges for his statements about the wiretapping program before Congress).

And I am mighty curious about that one line that he–with his now-legendary memory failures–remembers writing on a separate occasion from the rest of the notes.  Did he go back to implicate another member of Congress? How can Gonzales remember the circumstances surrounding that one sentence and virtually nothing else from his tenure in the Administration?

Are These Documents Among Those Congress Hasn’t Seen Yet?

Then there are the OLC opinions–opinions pertaining to both the warrantless wiretap program and the torture program. Does this batch of documents include some of the opinions–such as the one seemingly abolishing the 4th Amendment–that the Bush Administration hasn’t shown Congress yet? That’s the kind of OLC opinion I could imagine Gonzales hoarding.

Also note that he was keeping draft and final opinions. That’s interesting for two reasons. First, because the torture of Abu Zubaydah started before the August 1 OLC memo was finalized, which opens up the possibility that Gonzales has kept some drafts as if they gave legal cover. But it also raises the possibility that the variances between draft and final opinions reveal the true drafting process.

Finally, note the reference to the "draft legal declaration of a high-ranking intelligence agency official relating to the NSA surveillance program." No mention of which official it was or even which agency, only that it was a draft. Particularly given the Administration’s refusal to actually show NSA the opinions that justified this program, I wonder what’s in that draft declaration.

Congressional Notes to Hayden

And finally, we return to Hayden, with notes from Congress that had to have been written after Hayden became DCI in 2006. But since the IG report doesn’t identify whether the correspondence pertains to the illegal wiretap program or the torture program, and since Hayden was Director of NSA during the period when the warrantless wiretapping program was really lacking in legal justification (according to Comey), it could relate to either program.

But why was Gonzales hoarding this correspondence, and how did he get a hold of it? Was it more CYA, tracking the statements of members of Congress so as to insulate himself and (presumably) Bush?

Perhaps not surprisingly for an IG report that basically lets Gonzales off for breaking the law, the report doesn’t seem all that interested in the content of the documents, aside from noting they include TS/SCI information. After all, you’d think it would go to the issue of intent that Gonzales chose to hoard documents pertaining exclusively to two programs that lawyers within DOJ and CIA had determined to be illegal. But apparently, Gonzales was never asked about that.

In part 1, I laid out the facts surrounding the detention and illegal transfer of Hiwa Abdul Rahman Rashul. In this post, I want to demonstrate why this case matters. There is a pattern to the Bush/Cheney Administration’s illegal usurpation of executive power. Because the pattern broke down in this case, the strategy behind that power grab is laid bare. The struggle within the administration over the disposition of Rashul and the way it was resolved helps to illuminate the true nature of the current regime. Perhaps this case creates an opening to unravel the authoritarian infrastructure that has been built within our country in the last eight years.

Part 2: Why it matters

In the grand scheme of things, focusing on this case might seem a little like busting Al Capone for tax evasion. The Bush/Cheney Administration has institutionalized the most egregious extralegal executive abuses in our nation’s history. As matters of policy, they’ve launched a war of aggression under false pretenses, violated the most basic human right treaties, trashed the Fourth Amendment, denied the right of habeas corpus to citizens and non-citizens alike, set up secret prisons, disappeared their presumed opponents around the world, tortured the innocent and presumed guilty alike, conducted sham military tribunals against the underage and the mentally ill, and, worst of all, claimed the power to indefinitely detain anyone in the world, including U.S. citizens, without any external check whatsoever. And that’s just the stuff they have admitted to.

If we want to undo all this, and I very much do, we’ll have understand how they were able to accomplish it. I’m not going to rehash the sociopolitical environmental conditions that the administration took advantage of. Folks here understand that the generalized fear and anger after the attacks of September 11, 2001, the fecklessness of the Democratic party, the docile and compliant traditional media, the tight discipline within the Republican party, and the latent authoritarian impulses of a sizeable minority of the country created the necessary conditions for what happened. I want to focus on how the administration manipulated secrecy, its own people’s psychology, and the instinct for institutional self-preservation to manage a shifting set of narratives that allowed them to follow a deliberate strategy of expanding executive power and upsetting the constitutional balance of government while evading responsibility and steam-rolling all opposition. Then, I hope to show how this case exposes some chinks in the rather substantial armor of these malefactors.

Competing Narratives

One of the biggest problems in telling the full story of the Bush/Cheney Administration various illegal activities is distinguishing between the various narratives surrounding each episode. In every case, there is the story of the actual events are that always hidden behind a veil of secrecy. Then there is the momentary political scandal caused by a leak or leaks. The traditional media and the political opposition typically focus on that narrative only until there is an administration response. The administration responds with a modified limited hangout, selectively declassifying or leaking some information and augmenting it with false or misleading public statements to create an alternative narrative to defuse the political scandal. Later on, additional information comes out that contradicts the official narrative, but by that time, the issue is ‘old news’. Only after a series of scandals could anyone notice that there is a pattern to the actual events, the leaked narratives and the official narratives that help illuminate the strategy that the administration used. Keeping in mind that we always have to be alert to the unreliable narrator problem, let’s take a look at these narratives in the order they come into the public consciousness, the scandal, the hangout, and what really happened.

Narrative 1:   The Scandal

The most easily overlooked, and most interesting, aspect of the scandal narrative is that it is almost always driven by institutional self-preservation. In this instance, the confirmation of the existence of ghost detainees in Iraq was a side effect of Gen. Taguba’s investigation of the Abu Ghraib scandal. The original leakers wanted to separate themselves from the Abu Ghraib scandal and prove they had explicit orders from higher-ups to hide Rashul. The first story about Rashul starts like this:

The top U.S. commander in Iraq, Lt. Gen. Ricardo Sanchez, issued a classified order last November directing military guards to hide a prisoner, later dubbed "Triple X" by soldiers, from Red Cross inspectors and keep his name off official rosters. The disclosure, by military sources, is the first indication that Sanchez was directly involved in efforts to hide prisoners from the Red Cross, a practice that was sharply criticized by Maj. Gen. Antonio Taguba in a report describing abuses of detainees at the Abu Ghraib prison near Baghdad.

Whatever the triggering event, whether there’s a whistleblower, an inadvertant disclosure, or just someone with a score to settle, the first big story in the mainstream press is usually shaped by a bureacracy trying to protect itself. Which mean the story always has one big revelation and it almost always points the finger at political appointees. That naturally leads to an official administration response.

Narrative 2: The Modified Limited Hangout

This is where the Bush/Cheney team has shown real innovation. The typical script for goes like this. You put a Cabinet-level official (or if you do it on background, the infamous Senior Administration Official or SAO) out front, backed up by some guy in uniform. After the obligatory ‘the terrorists are gonna kill us all’ hand-wringing, the SAO confirms some of the details from the scandal story and adds a few new juicy bits, but denies or ignores significant elements of the previous narrative. The situation is presented as perfectly normal, at least for a post 9/11 world, and besides, the lawyers signed off on the whole thing, so no one could possibly question the purity of the administration motives, except the partisan media and their anonymous sources who are obviously from the Democrat party. Any uncomfortable questions are avoided because the answers are, of course, classified. The main purpose of the new narrative is deflect attention away from the most damaging aspects of the story. A key function of the cover story is to allow the policymakers to hide behind the lawyers and the lawyers to disclaim any responsiblity for the policy.

Narrative 3: What really happened

Of course, the cover narrative never satisfies everyone. For example, Philippe Sands’ dogged investigation of torture at Guantanamo led him to uncover the facts behind the institutionalization of torture there. Sands’ article for Vanity Fair exposing the false timeline was really the inspiration for my analysis of the Rashul case. Valtin’s yeoman work in ferreting out the fact that SERE techniques were the first choice for interrogations by some in this administration provided another clue. Ultimately, I came to realize that there was a pattern, even in the actual narratives.

In a comment to my previous post, Ondelette gets this almost exactly right, so I’ll quote that:

I think your timeline on Rashul is probably quite correct and very devastating. But I tried to do the ‘when did the document come and when did the illegal actions come’ thing several times now, and it turns out as information seeps out, every time line is similar to yours with Rashul.

The conduct begins.
The administration wishes to make the conduct the norm.
They solicit an opinion from OLC, who is led to believe that the conduct is only being contemplated.
The OLC writes a memorandum.
Written policies flow from the memorandum.

The one thing I think Ondelette gets wrong is the bit about the OLC thinking that the conduct is only being contemplated. I think the available evidence points us in a different direction. In this case, Goldsmith clearly knew that Rashul was already in Afghanistan when Gonzales asked for the opinion. Even before he was confirmed, when Goldsmith gets the call from Philbin it’s described as urgent. You don’t make calls like that for contemplated action. Those issues become urgent after the fact when someone questions the legality of the action. Compare this to what we know about the warrantless wiretapping. The program was started, the FBI and others questioned the legality, and then the OLC opinion was issued to shut down the debate. If you look closely at Yoo’s DOD torture memo, you find some very direct coorelation between what had already been done at Guantanamo and the specific actions he immunized. This coorelation goes beyond the techniques documented in the request from Diane Beaver to Rumsfeld to include ‘unauthorized’ techniques used on al-Qatani and others. Here’s how I would alter Ondelette’s outline:

• An illegal policy is adopted. 
• The policy is implemented.
• The policy is challenged.
• The OLC is presented with the Hobson’s choice of authorizing the policy as already implemented.
• The OLC writes an opinion.
• The policy becomes ‘legal’.
• A select few in Congress are notified about the policy, but only in broad outlines and under strict secrecy.

The OLC was repeatedly confronted with being asked to come up with a legal justification for a ‘vital’ program in the so-called War on Terror. Goldsmith’s descriptions of his interactions with David Addington are revealing. On one occasion, he quotes Addington thusly:

If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.

Waving the bloody shirt was even more effective for the administration internally than it was politically. Despite all of Cap’n Jack’s protestations to the contrary, he effectively caved to this pressure with his draft opinion of March 2004.

Rashul: Frayed Narratives

The Bush/Cheney Administration has been remarkably effective in creating a consistent false narrative that disguises the true nature of their regime and protects the perpetrators from being held accountable. In the case of Hiwa Abdul Rahman Rashul, there are some interesting holes in the cover story and breakdowns in the Administration’s execution of their standard game plan that leave an opening for an effective investigation. The first failure of execution was Goldsmith’s initial unwillingness to bless the rather obvious breach of the Geneva Convention. By bringing Rashul back to Iraq and hiding him from the ICRC, the administration engaged in conspiratorial conduct. By renewing the program of disappearing Iraqis to Afghanistan on the basis of a DRAFT opinion from Goldsmith, the administration showed that they considered legality nothing but a formality. Finally, the cleverest thing part of the Bush/Cheney Adminstration game plan for implementing their tyrannical policies was the way they implicated Congress in their actions by manipulating Congressional notifications. I suspect that Congress is in the clear on this one. During the Rumsfeld modified limited hangout presser there was this exchange:

            SEC. RUMSFELD:  And as we get more information, we’ll make it available.  The Congress has been briefed extensively on this, as I understand it.  No.

            MR. DELL’ORTO:  Not this particular case, as far as I know.

            MR. DIRITA:  Yes.  No, we’ve done some notifications to the staff on the Hill, both us and the CIA, with respect to the details of this particular case.  And as we get more, we will provide it.

That’s clear as mud. If there were notifications, it’s likely they were done in June 2004 rather than July 2003 when the deed was done.

In that same presser, Rumsfeld openly implicated himself and George Tenet in the coverup. The CIA OIG criminal referral implicates the highest levels in the DOJ. The available information leaves a number of avenues open for Congressional investigation. Might I suggest to Sen. Leahy that he add that criminal referral to the list of documents he’s been asking for? Indeed, I will. At the same time, I’ll remind the Obama camp of that promise they gave Will Bunch and that they will likely be in charge of all these records in a few months. I’ll also remind the folks here that our duty as citizens includes keeping the pressure on ‘our’ guys to do the right thing. I’m not naive enough to think that Obama will do much about any of this unless there’s some pressure. In fact, I’m old enough to remember that the best conditions for limiting Executive Branch power are when there is a Dem President and Dem Congress. We need to help Leahy, Levin, Waxman, and the rest that they need to keep pushing.

Here’s my bottom line. There’s plenty of evidence of war crimes for an international tribunal to start an investigation of Bush, Cheney, Rumsfeld, and the whole crew in February 2009. I think an international tribunal, as unlikely as it seems, would be a disaster. It would ignite a jingoistic furor in this country. These guys are our criminals and our responsibility. It’s time for America to face up to what we’ve allowed this country to become. Unraveling some this big has to start with a single thread. I think that thread just might be asking what happened to Hiwa Abdul Rahman Rashul and what are we going to do about it?

[UPDATE]

If you really want to understand what Cheney’s been up to the last eight years, you need to go back read the Iran-Contra Congressional Minority Report that he and David Addington wrote. The goal has always been as much about expanding Executive Branch power as anything else. I’m sure that Bush and Cheney get off on the torture, but for Cheney at least, that’s secondary to the effort to establish what is effectively an elected constitutional dictator. That’s another thing Cap’n Jack never understood. It was never really about protecting America from terrorists. It was about using that as an excuse to push the real agenda.

[WilliamOckham makes an excellent, and absolutely critical, point in the update paragraph immediately above about the overarching plan of Cheney to retake, and expand further, Executive Branch power that was spelled out in the Iran-Contra Congressional Minority Report. And that is exactly what we have been witnessing in the announcement by the Administration of last minute wild expansion of domestic spying and datamining capabilities, and as discussed in the two "FISA Redux" posts here and here. – bmaz]

As several of you have noted, there has been a rather significant event at the Gitmo Show Trials. Lt. Colonel Diane M. Zierhoffer, a US Army psychologist who ordered the illegal torture of a juvenile, Mohammad Jawad, invoked her right not to incriminate herself and refused to testify in the case of Mohammad Jawad. She took the Fifth.

Her testimony was sought by defense attorney Maj. David Frakt in a hearing on his motion to dismiss charges based upon government misconduct in using prolonged isolation, sleep deprivation, and other torture techniques against his client in an attempt to make him more pliable in interrogations. Following a month-long isolation, apparently recommended by the military psychologist, Mr. Jawad – who entered Guantánamo as a teenager — attempted suicide.

The psychologist’s testimony would have marked the first time that a member of the secretive Behavioral Science Consultation Team (known as BSCT or “biscuits”) had been called to testify in a detainee hearing. The BSCT program has been highly controversial among psychologists and other health professionals. The psychologist invoked her rights under Article 31 of the Uniform Code of Military Justice, the military equivalent of the 5th amendment right against self-incrimination/right to remain silent.

“The fact that the BSCT Psychologist now apparently recognizes that her conduct was criminal in nature is very significant,” said Maj. Frakt. “We have alleged, based on classified government records that the BSCT psychologist’s recommendation led directly to the illegal abuse and inhumane treatment of Mohammad Jawad. This invocation of the right to remain silent seems to confirm that.”

“The evidence in this case confirms our worst fears, that military psychologists are working to break down detainee’s psyches,” said Dr. Stephen Soldz, an expert psychologist who had been called by Maj. Frakt to testify that the BSCT psychologist had violated the professional credo of “Do no harm.”

Zierhoffer’s, and her fellow colleagues in the BSCT biscuit brigade, apparently have an operational definition of "Do no harm" with which I am not familiar. It would appear that "Do no harm" is fully operational as to her own self interest, but not to the humane interests of the powerless vulnerable souls she, and they, are ethically and morally obligated to protect.

The relevant professional association, the American Psychological Association (APA), has been having a fairly interesting internal discussion on how stridently the group will disapprove and sanction the gross ethical failings of the biscuit brigade members. There is also a lot of excellent information and background at the blog Invictus (See: here and here for instance). Invictus is run by a chap known as Valtin, a practicing psychologist in Northern California who is very passionate and dedicated on these issues. It is about time that a professional group is serious about policing the lapses of their own; kudos to the APA members standing up on this issue.

For me though, the more germane interest is in what effect Zierhoffer’s, and others that will undoubtedly be following in her footsteps, invocation of the right against self incrimination will have on the Gitmo Show Trial Process, both as to Jawad and subsequent proceedings. i cannot discern that there is any reporting, as of yet, as to how the parties and court are going to deal with the substantial issue of a material fact witness, Zierhoffer, refusing to testify. It should create a profound commotion.

The traditional tried and true response from a competent criminal defense lawyer would be to immediately formally demand on the record that the prosecution provide the necessary level of immunity to negate the witness’s self incrimination potential (very much the same concept as has been seen in the Congressional hearings with Monica Goodling; remove their criminal exposure, and they no longer have grounds to refuse testimony). The standard prosecution response to this is "No". The next step is to then move the court to immunize the requisite witness and/or compel the prosecution to do so. The standard response from the court to this motion Is abject denial on the grounds that the court does not have that authority absent a request by the prosecution and, further, lacks the authority and discretion to order the prosecution to make such a request.

Having laid the prerequisite foundation described immediately above, the defense then moves the court to dismiss the charges against the defendant on the grounds that he has been denied his Sixth Amendment Confrontation Clause right to confront and cross examine witnesses and right to compulsory process for obtaining witnesses in his favor. There is a fairly high burden for the defendant to prove that the denied testimony is sufficiently material and central to his defense that he cannot adequately defend himself without it. This is a very simplified explanation and description, but hopefully is sufficient to give an indication of what to expect. The other caveat I would make is that my vignette is taken from a traditional Federal or state criminal case and the "relaxed" rules of procedure and evidence in the Gitmo Show Trials may portend additional problems to the interjection of this type of dismissal motion tactic.

It will be fascinating to see what the full impact of Zierhoffer’s refusal to testify is, both as to Jawad and later cases.

One other tangential goody I am going to throw in here just for grins. This again comes from Valtin at Invictus.

The depth and depravity with which the Bush/Cheney neocon warhawk aggressor machine has co-opted and corrupted the institutions, associations and professions that compose the fabric of this nation is simply astounding. The DOJ, the judiciary, the regulatory and administrative agencies and framework, private enterprise. They literally consume and soil every thing they touch. Here at Emptywheel, we have focused mainly on the institutions and, lately, the professions as to lawyers and now doctors and psychologists/psychiatrists. How bad is it, and how far have they gone? Well, now they have swallowed up Indiana Jones too. Yep, the Bushco Borg collective has assimilated the anthropologists. From a report by Hugh Gusterson at the Bulletin of the Atomic Scientists:

The Pentagon plans 26 Human Terrain Teams–one for each combat brigade in Iraq and Afghanistan. The five-person teams include three military personnel. Each team also includes an anthropologist–or another social scientist–who will wear a military uniform and receive weapons training. Described as doing "armed social work" by David Kilcullen, an Australian expert in counterinsurgency who advises Gen. David Petraeus in Iraq, the teams elicit information from villagers for Pentagon databases and provide cultural orientation to U.S. military leaders….

Last year, the Executive Board of the American Anthropological Association (AAA) issued a statement condemning the use of anthropologists in Human Terrain Teams….

One cannot grasp AAA’s concerns without understanding that anthropologists have a unique research method that brings with it special ethical responsibilities: We engage in what one anthropologist has called "deep hanging out" with people, passing the time with them, often day after day for months, painstakingly earning their trust and getting them to tell us about their worlds. What distinguishes anthropology from espionage (apart from anthropologists’ impenetrable jargon) is that we seek the consent of our subjects, and we follow an injunction to do no harm to those we study. According to the anthropological code of ethics, our obligations to those we study trump all others–to colleagues, funders, and nation.

Marvelous. This ought to present a whole new level and meaning to the concept of rewriting history, even for accomplished rewriters like the Bush/Cheney pack of rats. As Valtin observes:

Meanwhile, U.S. Army personnel are showing up at meetings of anthropologists and taking down names and institutional affiliations of anthropologists who had signed a public pledge not to participate in "counter-insurgency operations in Iraq or in related theaters in the ‘war on terror,’" believing that "anthropologists should refrain from directly assisting the US military in combat, be it through torture, interrogation, or tactical advice."

The U.S. ruling class’s mobilization of all layers of civil society for the fear-driven defense of the nation against "terror," is leading to the militarization of the society as a whole. We are already far down this path… too far, such that many sober observers would already call the United States "fascistic."

I would stop short of making that judgment, but we may be closer to it than anyone would like to think.

Our nation is in a world of hurt, and full public accountability for the malefactors that put us there is a large and necessary part of the cure. We need it now Ms. Pelosi; the sole substantive requirement of your sworn oath to office is to "support and defend the Constitution of the United States". Either quit being derelict in duty, and start honoring your oath and duty, or get out of the way for somebody that will.

On June 30, the 2nd District Court of Appeals rejected Maher Arar’s suit against the US government for sending him to Syria to be tortured. That decision came almost a month after the Dpartment of Homeland Security Inspector General released a report showing–even in its redacted form–that Arar had repeatedly warned that he would be tortured if sent to Syria, and that the INS folks knew that there was a high likelihood that Arar was right.

Perhaps it took the judges on the Appeals Court some time to really digest the report, because today they announced the entire court will rehear his appeal.

The Second Circuit Court of Appeals issued an extremely rare order that the case of Canadian rendition victim Maher Arar would be heard en banc by all of the active judges on the Second Circuit on December 9, 2008. For the court to issue the order sua sponte, that is, of its own accord without either party submitting papers requesting a rehearing, is even more rare.

“We are very encouraged,” said CCR attorney Maria LaHood. “For the court to take such extraordinary action on its own indicates the importance the judges place on the case and means that Maher may finally see justice in this country. As the dissenting judge noted, the majority’s opinion gave federal officials the license to ‘violate constitutional rights with virtual impunity.’ Now the court has the opportunity to uphold the law and hold accountable the U.S. officials who sent Maher to be tortured.”

One more thing may factor into this reversal. Recall that, when the DHS IG testified on the report, he said he was reopening his investigation into Arar’s rendition.

Interestingly, in his own testimony today, the Homeland Security IG states that "we have reopened our review into the Mr. Arar matter because, less than a month ago, we received additional information that contradicts one of the conclusions in our report. As such, we are in the process of conducting additional interviews to determine the validity of this information to the extent we can."

So maybe, pursuant to that reopened investigation, the Appeals Court knows of new information?

Is it possible that Arar will yet have the opportunity to prove his case against Larry Thompson and others, who sent him to be tortured in Syria?

Watching the lawyers who established the torture regime a few weeks ago was particularly stunning in one respect. Jim Haynes, Dougie Feith, Jane Dalton, Diane Beaver–all of them at some point in the hearings repeated the non-sensical claim, "the removal of clothing is not nudity" (or naked).

In this video, for example, Jerrold Nadler asks Dougie Feith,

Nadler: How could you force someone to be naked and undergo a twenty hour interrogation?

Feith: It doesn’t say naked. It doesn’t say naked. This is why the words…

Nadler: Removal of clothing doesn’t mean naked?

Feith: Removal of clothing is different from naked.

Haynes repeated the mantra in his testimony before the Senate Armed Services Committee.

Haynes: Some conflation. Two of items for Qahtani included clothing and use of phobia. What was approved by SecDef. Widely held understanding of what was in those two categories. Use of dogs not intended to be dogs in interrogation room with detainee. Muzzled dogs in perimeter. Removal of clothing not nudity. You then jumped to dogs in room and naked people.

Jane Dalton explained that in context (remember, she’s talking about a two page memo with no footnotes) the removal of clothing is not nudity.

Dalton: If conducted with oversight. In context in which discussed. Removal of clothing not nudity, working dogs not dogs unmuzzled and snarling, stress limited to standing for four hours. When you put them together, those techniques could be consistent with domestic and intl law.

And Claire McCaskill gave Jane Dalton and Diane Beaver a short reading lesson.

McCaskill Reading memo. You understand words matter. Removal of clothing. It says Using detainee phobias such as fear of dogs. I’m trying to figure out as a lawyer, how that does not envision naked people having dogs sicced on them. How does that not occur?

Beaver When you develop a plan, if someone had said, lets sic the dogs on them. That did not happen.

McCaskill Dogs were used with naked people.

Beaver Not at Gitmo

mcCaskill Within our military. It happened/

Beaver I can’t comment..

McCaskill Ms Dalton

Dalton: Those approved for Gitmo and did not involve nudity.

McCaskill Removal of clothing. When you were discussing safeguards. Did any one talk putting in the word all. If I saw removal of clothing and I was trying to get info, how would anyone know?

Dalton General Miller said it did not involve nudity.

McCaskill there’s nothing here that would say [limit] removal of clothing. It’s not in there.

Aside from the sheer idiocy of the claim, after watching both those hearings I was haunted by the seeming formulaic quality of the claim: removal of clothing is not nudity, removal of clothing is not naked, as if the repetition of the phrase would somehow divorce the actual nakedness seen everywhere in our torture regime from the authorization for that nakedness.

But a couple of passages from Jane Mayer’s book–describing the Standard Operating Procedures that came out of the approval–make it clear that the reason why the DOD approval doesn’t specify nakedness has more to do with the institution of "learned helplessness" rather than any carelessness about language. That is, the reason why DOD doesn’t put any limits on when removal of clothing becomes nudity is because the goal is to put the interrogator in complete control of the detainee. As Mayer writes:

A secret government document, which was originally written for use in Guantanamo, gave further credence to the Bush Administration’s official use of forced nakedness as a psychological weapon. "In addition to degradation of the detainee, stripping can be used to demonstrate the omnipotence of the captor or to debilitate the detainee," it said. The document advised interrogators to "tear clothing from detainees by firmly pulling downward against buttoned buttons and seams. Tearing motions shall be downward to prevent pulling the detainee off balance." (273)

She describes how this "removal of clothing is not nudity" translated for Abu Zubaydah (which, admittedly, did not rely on the DOD SOPs):

… the CIA interrogators also announced they planned to become Zubaydah’s "God." They reportedly took his clothing as punishment, and reduced his human interaction to a single daily visit in which they would say simply, "You know what I want," and then leave. (168)

You see, the word games these monsters are playing are all about playing "god" with other human beings. It’s not the status of nudity that they’re so much interested in. It’s the process, the power, the ability to remove another human’s clothing at will.