Senate Judiciary Hearing on Truth Commission Liveblog

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Will be on CSPAN3 and the Committee stream.

Meteor Blades has a great roundup of today’s witnesses (actually, his entire post is worth a read, as always with him).

They are:

Thomas-Pickering-140_23908t.jpgThomas Pickering is a career diplomat who served as U.S. ambassador to Jordan (1974–1978), Nigeria (1981–1983), El Salvador (1983–1985), Israel (1985–1988), the United Nations (1989-1992), India (1992–1993) and Russia (1993–1996). He is now vice chairman of Hills & Company, and is co-chair of the 14-year-old International Crisis Group. Three weeks ago Pickering signed a letter  to President Obama seeking a commission to look into the detention, treatment, and transfer of captives after September 11.

gunn.jpgVice Admiral Lee Gunn (Ret.), who served in the final three years of his 35-year military career as Inspector General of the Department of the Navy, is now president of the Institute of Public Research at the CNA Corporation, and president of the 2-year-old American Security Project, which sees its mission as "promoting debate about the appropriate use of American power, and cultivating strategic responses to 21st century challenges."

Farmer.jpgJohn J. Farmer Jr., the former attorney general of New Jersey was Senior Counsel to the 9/11 Commission. He is a partner at Arsenault, Whipple, Farmer, Fasset and Azzarello, L.L.P. and an adjunct professor at Rutgers School of Law-Newark. He wrote "The Rule of Law in an Age of Terror" for the Rutgers University Law Review (2005).

schwarz.jpgFrederick A. O. Schwarz, Jr. Chief Counsel at the Brennan Center for Justice and chief counsel for  Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activity (1975-1976), widely known as the Church Committee for its chairman, Idaho Senator Frank Church. His latest book, written with Aziz Z. Huq, is Unchecked and Unbalanced: Presidential Power in a Time of Terror

Photo_06c45eaa5e2d481dbf2a4cf3513a6.jpgDavid B. Rivkin, Jr. is a partner with Baker & Hostetler, L.L.P. He was chief counsel of the President’s Council on Competitiveness at the White House under George H.W. Bush, where he was in charge of a review of government regulations. He later coordinated the development and implementation of the first Bush’s deregulation efforts. He has argued that the United States has not violated the Geneva Conventions with its captured prisoner policy and that it was a few "bad apples" and not policy that was responsible for what happened at Abu Ghraib and elsewhere, and opposed appointment of a special prosecutor in the Lewis "Scooter" Libby affair.

rabkin.jpgJeremy Rabkin, a renowned scholar of internationalaw, is a professor at George Mason University School of Law in Arlington, Va. A member of the board of directors of the United States Institute of Peace and author, most recently, of the Law without Nations?: Why Constitutional Government Requires Sovereign States. He has argued that all Presidents stretch the law in times of war, but that the U.S. always regains its balance afterward.

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Where Are the Other Memos?

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As we’ve been discussing, DOJ released nine previously unreleased OLC memos yesterday, two of which were Steven Bradbury memos basically saying, "oops, no harm no foul!!"

But they’ve still just released 5 of the 41 memos that the ACLU has requested in FOIA proceedings (as well as two that were not on that list, plus Bradbury’s two "no harm no foul" opinions). Where are the other memos? Why weren’t they released yesterday? Is it because they’re still active (and supporting torture and illegal wiretapping and whatnot??)

The question is especially pertinent given a few things Bradbury said in his January 15, 2008 "no harm no foul" opinion.

The Commander in Chief Is Only Sort Of Bound By the Law

To dismiss several opinions authorizing torture, Steven Bradbury quotes at length responses he made to Teddy Kennedy in 2005 when he still had hopes of becoming OLC head.

The federal prohibition on torture … is constitutional, and I believe it does apply as a general matter to the subject of detention and interrogation conducted pursuant to the President’s Commander in Chief authority.

[snip]

The President, like all officers of the Government, is not above the law. 

He goes on from there. But then, in a passage not included in his responses to Kennedy (that is, a passage unique to this memo) he says, 

We recognize that a law that is constitutional in general may still raise serious constitutional issues if applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II.

To Teddy Kennedy: The torture ban is constitutional and the President is not above the law.

To the file earlier this year: … unless "applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II."

Psych!!

We Remain Noncommittal about the President’s Authority to Suspend Treaties

And then, in his discussion about whether or not the President is above the law, Bradbury cited a 2007 OLC memo (which we didn’t get yesterday), to say that OLC had not yet weighed in on whether the President can suspend treaties.

The above critique is not meant to be a determination that under the Constitution the President lacks authority to suspend treaties absent authorization from Congress, the text, or background law. The White House did not directly ask that question … and we did not purport to resolve it.

The Loopholes Remaining and the Outstanding Memos

Now, I consider these Bradbury comments very troubling given the memos that DOJ did not turn over.

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Breaking: Previously Unreleased OLC Opinions Now Released

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A bunch of DOD-related OLC opinions just got released (h/t Spencer)

Of note, the one eviscerating the 4th Amendment has been released, and a key one on FISA that I believe Steven Bradbury didn’t include in his FOIA response on opinions relating to FISA.

Consider this a working thread.

January 15, 2009: Steven Bradbury attempts to partially roll back previous bogus claims

It appears that, just before Bush went out and Obama came in, Steven Bradbury attempted to partially roll back the most egregious opinions of the Bush Administration. Make no mistake, though. Much of this represents just a partial roll back. So rather than saying Bush had no business conducting his illegal wiretapping, Bradbury instead refers to the January 2006 DOJ White Paper which claimed (Tom Daschle’s objections notwithstanding) that the AUMF authorized illegal wiretapping. Similarly, while Bradbury admits that Congress has some authority to make law, that’s a limited admission. 

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Who Watched the Torture Tapes?

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As a number of you have pointed out, DOJ just informed the ACLU and Judge Alvin Hellerstein that CIA destroyed 92 tapes showing torture.

In the meantime, the CIA can now identify the number of videotapes that were destroyed, which is information implicated by [Hellerstein’s order that ACLU gets information responsive to its FOIA request]. Ninety-two videotapes were destroyed. 

Once McCaffrey the MilleniaLab and I go for a walk, I’m going to follow-up to see whether those 92 tapes all came from Abu Zubaydah and al-Nashiri’s torture (remember–original reports said there had been thousands of hours of videotape) or whether the torture tapes of different detainees were included.

Just as interesting (particularly in light of the goings on in the al-Haramain case), is the list of information that the ACLU will shortly be getting (the CIA wants this week to put together a schedule for turning over the information). That includes:

  • A copy of the CIA Office of Inspector General’s Special Review Report–a redacted copy of which had previously been supplied to the ACLU–with the details regarding the torture tapes un-redacted.
  • A list identifying and describing each of the destroyed records.
  • A list of any summaries or transcripts describing the destroyed records’ content.
  • Identification of any witnesses who may have viewed the videotapes or retained custody before their destruction.

Note, they are warning that they will protect CIA identities wrt that last bullet. But we may get the names of other people (I’m curious whether Cheney, David Addington, or John Yoo might be among them) who had viewed the torture tapes.

And this is perhaps the most interesting bit:

The CIA intends to produce all of the information requested to the Court and to produce as much information as possible on the public record to the plaintiffs.

Watch out below, because I think this dam may well break.

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DiFi’s Whitewash

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Last week, when I put you all to work (while I was on vacation–sorry) to find out whether your members of Congress supported some kind of investigation into Bush Administration crimes, fatster reported back DiFi’s ambivalence about any such investigation.

According to the Washington staffer who answered my call just now, DIFI has not yet commented on what her position will be. Imagine that.

DiFi’s support or not is critically important since–as the new Chair of the Senate Intelligence Committee–she’ll have significant say about whether or not we investigate what the Intelligence Community did under Bush.

Well, today the largest paper in DiFi’s state reports what appears to be DiFi’s slowly evolving response: an investigation that the American people don’t get to see. Otherwise known as a whitewash.

The Senate Intelligence Committee is preparing to launch an investigation of the CIA’s detention and interrogation programs under President George W. Bush, setting the stage for a sweeping examination of some of most secretive and controversial operations in recent agency history.

The inquiry is aimed at uncovering new information on the origins of the programs as well as scrutinizing how they were executed — including the conditions at clandestine CIA prison sites and the interrogation regimens used to break Al Qaeda suspects, according to Senate aides familiar with the investigation plans.

Officials said the inquiry was not designed to determine whether CIA officials broke laws. "The purpose here is to do fact-finding in order to learn lessons from the programs and see if there are recommendations to be made for detention and interrogations in the future," said a senior Senate aide, who like others described the plan on condition of anonymity because it had not been made public.

[snip]

The senior aide said that the committee had no short-term plans to hold public hearings, and that it was not clear whether the panel would release its final report to the public.

[snip]

Senate aides declined to say whether the committee would seek new testimony from former CIA Director George J. Tenet or other former top officials who were involved in the creation and management of the programs.

The Senate investigation will examine whether the detention and interrogation operations were carried out in ways that were consistent with the authorities and instructions issued in the aftermath of the Sept. 11 attacks, officials said.

The panel will also look at whether lawmakers were kept fully informed. Read more →

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Kirk Lippold, Gitmo Architect, Still Making Torture Cool

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I previously wrote about Kirk Lippold earlier this month, when the Obama Administration dropped charges against Rahim al-Nashiri, the alleged mastermind of the Cole bombing. Just as a Bush Dead-Ender judge was forcing Obama’s hand by refusing to put off al-Nashiri’s trial, Lippold, former Commander of the USS Cole, hit the airwaves, bitching about how Obama was holding up justice for the families of the Cole victims.

Somehow, the news sources quoting Lippold never asked why (with one exception) he hadn’t been bitching for the previous eight years, when Bush and Clinton failed to prosecute any of the Cole bombers.

Nor did the news sources quoting Lippold reveal something just as pertinent to his complaints that Obama was letting a Gitmo detainee free as his role as Cole Commander: Lippold was himself one of the architects of Gitmo policy.

With yesterday’s release of Binyam Mohamed, Lippold is back, attacking Obama for making the country less safe.

This unprecedented release of an enemy combatant, who has already targeted the United States, clearly shows that despite the promises that President Obama made to keep this country safe, he may be putting political promises ahead of our national security. The laundry list of charges against Binyam Mohamed, many of which he has admitted to, makes it blatantly clear that it is not if he will attack the United States, but only when his attack will happen.

And, with the help of Military Families United (which seems to have been set up to push Obama to be belligerent as possible and which seems to have been the catalyst behind Lippold’s new chatty ways), Lippold’s attacks are getting play. 

Kudos to Carol Rosenberg, alone among journalists picking up Lippold’s release, for identifying Lippold with his Gitmo role.

A Bush administration era architect of Guantánamo policy resurrected the dirty bomb allegation and accused Obama of "clearly taking actions that may endanger the United States and our national interests.”

Retired Navy Cmdr. Kirk Lippold, whose destroyer the USS Cole was struck by suicide bombers in October 2000, said in a statement issued by the advocacy group Military Families United: "Americans must now be very watchful of every action the Obama administration takes in war on terror.”

The AP, though, makes no mention of Lippold’s role in designing Gitmo.

Some criticized Mohamed’s release, saying Monday that no detainees should have been freed before their status was reviewed under an executive order Obama issued last month.

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

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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.

[snip]

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?

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Obama Hates The Truth On Binyan Mohamed

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Graphic by Darkblack

Graphic by Darkblack

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 Read more →

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The Push to Publish the OPR Report

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Mike wants Yoo
(photo by Emilyschneider)

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.

[snip]

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?

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BREAKING: Obama Continues Bush Policy On State Secrets

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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 Read more →

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