Be careful which enemies you make

By Edward Copeland 

In Charles Ferguson's outstanding documentary on the financial meltdown, Inside Job, one of his interview subjects is former N.Y. Attorney General Eliot Spitzer, who'd been known as the Sheriff of Wall Street for going after shady business practices long before the collapse. Toward the end of Inside Job, it makes the point that none of the financial firms ever faced investigations for their traders writing off high-priced escort services as business expenses, but the Justice Department did pursue Spitzer when it was discovered after he was governor that he used an escort service. The work that Spitzer did and the promise he held as a gifted politician that came crashing down because of his personal weakness are detailed well in another excellent documentary from the prolific filmmaker Alex Gibney, Client 9: The Rise and Fall of Eliot Spitzer.

Gibney also made the great 2010 documentary Casino Jack and the United States of Money as well as the similarly outstanding Taxi to Dark Side and Enron: The Smartest Guys in the World. He also served in producing capacities on Ferguson's excellent No End in Sight and the brilliant Who Killed the Electric Car?

While Client 9 definitely makes the case that the political downfall of Spitzer may have been an orchestrated hit by his enemies in the business community and the Republican Party, Gibney doesn't try to downplay Spitzer's faults beyond the weakness that led him to seek high-priced sexual companionship in the first place. The film paints a broader portrait of the man's achievements and his hubris, which include a superiority complex and an approach that makes him come off as a bully, even if what he was trying to do was right.

As with the best documentaries, Client 9 teaches you things that you didn't know. It seems as if so many of the recent outstanding documentaries, no matter what their subject may be, show how spoonfed the U.S. media are, regurgitating "facts" that get handed to them while seldom checking their veracity. As far as I knew (and I imagine this to be the case with most people who heard about Spitzer and the call girl), his preferred escort was "Kristen" aka Ashley DuPre, who then turned herself into another of those freak celebrities, who ended up with a job at Rupert Murdoch's New York Post as a love and sex columnist.

Client 9, through interviews with one of the owners of The Emperors Club escort service, reveals that Spitzer saw "Kristen" maybe once but mainly went out with a woman who went by the name Angelica. Gibney interviewed her, but she didn't want her face or voice revealed, so an actress plays her part and reads the transcript of her interviews. Ironically, she's now a commodities day trader.

Where Spitzer really might have earned the enemies who were determined to stop him was when as attorney general he went after the head of AIG, Hank Greenberg, for the crooked financial games that company was playing, long before that company's collapse became a major cause of the world financial collapse and cost U.S. taxpayers billions in not one, but two bailouts. Greenberg was not at the helm by then, having been removed by his own board for violating company rules, but the methods AIG employed while Greenberg ran it were still going on and led to AIG's implosion.

U.S. Attorney Michael Garcia prevented Spitzer's pursuit of Greenberg prior to that by claiming the Justice Department was building a case against Greenberg, which they never filed. However, this same Garcia intercepted wire transfers Spitzer made and started looking into escort services that led to leaks that got Spitzer's sexual habits revealed. This also came at the time the Bush Administration was firing U.S. attorneys who weren't prosecuting enough Democrats.

Needless to say, when prosecutors go after prostitution rings, they rarely go after the clients, just the owners and the prostitutes. In contrast, around the same time, the D.C. Madam case surfaced and they only pursued the madam there, even though it was revealed that two of her clients were high-profile Republicans, including Louisiana Sen. David Vitter, who was just re-elected. He faced no legal inquiries.

Many believed that Spitzer had a good shot at being the country's first Jewish president. I just wonder if he'd been able to keep after Wall Street as he was doing, whether some of the mess that happened could have been prevented since no regulatory fixes have really been put in place to stop it since. Government of the corporations, by the corporations, for the corporations shall not perish from the United States and we the little people always will be the ones paying the price. Thank goodness we have documentary filmmakers such as Alex Gibney to do the job that journalists have long since abandoned or forgotten how to do.

(Cross-posted at Edward Copeland on Film.)

Reactions to the upcoming 9/11 trials announced by AG Eric Holder

By Carol Gee

There was strong reaction to the announcement of the 9/11 trial to be held in a New York court. Liberals and civil libertarians were approving and Republican Right-Wingers were deeply disapproving.

What are we to call the widespread upset among Republicans? Today's post is a digest of opinion from writers whom I regularly follow as well as my own conclusions.

Fear Mongering -- Tom Andrews, writing late Friday night for The Huffington Post, said that, ". . . we all know that Right Wing critics will be out, en masse, using their favorite tactic of fear-mongering while relying on ignorance to manipulate the public." Read the whole thing: Khalid Shaikh Mohammad, others to finally face justice in NYC.

Surrender -- Other nations have trials of high level terrorists within their systems of normal justice. But since 9/11/01 we in the U.S. have not. I think Glenn Greenwald put his finger on the problem in his Saturday post. He minced no words, calling it "The Right's textbook 'surrender to the terrorists'." His intro line said, " 'We're too scared to have real trials in our country' is a level of cowardice unmatched in the world." And Greenwald closed with this straight up opinion:

. . . it's hardly surprising that they exude a level of fear of Terrorists that is unmatched virtually anywhere in the world. It is, however, noteworthy that the position they advocate -- it's too scary to have normal trials in our country of Terrorists -- is as pure a surrender to the Terrorists as it gets.

Cowardice -- At emptywheel Marcy Wheeler wrote a pungent little piece that asked, "Why is it that Republicans are such scardey-cats?" I love what Gregg Levine said in "Elephants on Parade" on Friday at Firedoglake, about the difference between Democratic and Republican reaction to the announcement of upcoming 9/11 trials. To quote Levine:

Cowards. Cowards. And again, cowards.

I can’t say that word enough because no one else seems to say it at all.

Contrast what a sampling of Republicans (and Republican wannabe) have to say about today’s decision . . .

Guilt -- Guilt and anxiety/fear are first cousins in the world of emotional motivation. Daily Kos' "thereisnospoon," thinks he has figured out why Republicans are having such a fear mongering fit. The author concluded:

There's a reason Republicans are pissing in their pants. . . they're afraid that their own policies of torture and indefinite detention will get the terrorists acquitted. So, like a stupid criminal, they're upping the ante by doubling down on their original criminal idiocy.

Un-American Demagoguery -- Leaders who make use of popular prejudices or false claims in order to gain power does not deserve followers. Representative Jim Moran used even stronger words than fearfulness in a post by Evan McMorris-Santoro at TPMDC. To quote from the story Friday:

Rep. Jim Moran (D-VA) has strong words for the Republicans opposing Attorney General Eric Holder's plan to bring five 9/11 suspects to New York City to face trial.

"They see this as an opportunity to demagogue," he said. "They will seize on any opportunity to do that, and that means they'll even take a stand that's un-American."

"It's un-American to hold anyone indefinitely without trial," Moran added. "It's against our principles as a nation."

Medieval Romanticism -- These are probably the kindest words I found in my little news survey. Professor Juan Cole at Informed Comment defined the Republican reaction to AG Eric Holder's decision to prosecute as "medieval romanticism." To quote:

Predictably, Republican critics vowed to fight the decision, since they much prefer to hold people forever without trial while torturing them, sort of the way some English kings did in North America before there was that pesky American constitution. . . . its fascination with arbitrary arrest and imprisonment and with torture more recalls the star chambers of yore than the deliberations at Philadelphia over 200 years ago.

Fear is a natural and normal reaction to accurately perceived danger. But the key is using one's whole brain to ascertain just what constitutes a real danger. The terrorists acts in 2001 were very dangerous. Over three thousand people lost their lives as a result. This is 2009, however, and it is important to make distinctions that today's realities warrant. Wiser people than knee-jerk reactionaries are now in charge, thank goodness. The United States government must continue to act out of calculation toward confidence-building, out of justice and healing, out of intelligence and courage, and out of genuine patriotism. It is time.

(Cross-posted at South by Southwest.)

Reviving the Rule of Law After a Lawless "War on Terror"

By Carol Gee

Reviving the rule of law, restoring the Constitution's protection of civil liberties, closing Guantanamo, maintaining U.S. national security, improving intelligence gathering . . . could be a full time job for President-elect Barack Obama. The current administration's legal mess is high and wide, and much of the machinery of government will be required to dispose of it. Key elements/leaders include the National Security Council (Ret. General James Jones), the Justice Department (Eric Holder) and the Office of Legal Council (Dawn Johnsen), along with The Directors of National Intelligence (Adm. Dennis Blair), and the Central Intelligence Agency (Leon Panetta). As you can see this group is not overloaded with military people, good news for us all.

A lawless "war on terror" -- Secrecy has been one of the hallmarks of the Bush administration's lawless behavior. It was not just to protect national security that mountains of information was withheld; it was because it would have been the admission of law-breaking, both statutory and constitutional. The latest example is reported by ProPublica: "Bush Admin Still Withholding Key ‘War on Terror’ Memos" (1/9/09). To quote:

The OLC, the most powerful cadre of lawyers in the executive branch, gained fame under this administration for generating the so-called torture memos. Those are the ones that purportedly justified CIA "enhanced interrogation" techniques such as waterboarding. Many of them were not released today. Nor were some two dozen others having to do with surveillance, military commissions and executive power, according to Jameel Jaffer, director of the ACLU’s National Security Project, which has sued to obtain the memos under the freedom of information law.

. . . Pursuing embarrassment and/or criminal liability for senior Bush officials has been a favorite topic of late in liberal legal circles. As Glenn Greenwald recently wrote for Salon, Obama’s pick for OLC chief, Dawn Johnsen, herself has "lambasted" the Bush administration’s interrogation and surveillance stances – and its secrecy – in no less open a forum than Slate.

It looks as if the health of the core elements of U.S. legal system may be in for a revival based on people who have spoken out against the current administration's policies. Time will tell, but McClatchy is optimistic: "Obama's Justice nominees signal end of Bush terror tactics"# (1/5/09). To quote:

In filling four senior Justice Department positions Monday, President-elect Barack Obama signaled that he intends to roll back Bush administration counterterrorism policies authorizing harsh interrogation techniques, warrantless spying and indefinite detentions of terrorism suspects.

The most startling shift was Obama's pick of Indiana University law professor Dawn Johnsen to take charge of the Office of Legal Counsel, the unit that's churned out the legal opinions that provided a foundation for expanding President George W. Bush's national security powers.

Johnsen, who spent five years in the Office of Legal Counsel during the Clinton administration and served as its acting chief, has publicly assailed "Bush's corruption of our American ideals." Upon the release last spring of a secret Office of Legal Counsel memo that backed tactics approaching torture for interrogations of terrorism suspects, she excoriated the unit's lawyers for encouraging "horrific acts" and for advising Bush "that in fighting the war on terror, he is not bound by the laws Congress has enacted."

Holding government officials accountable for their misbehaviors may be an entirely different matter, however. But we must not give up on this need. Many powerful opinion makers are urging that our citizenry continue to demand justice. For example, AlterNet: "Demand That Obama Go After BushCo's 'Gravest Crimes'" (12/30/08). To quote:

for some reason, the . . . allegations of torture by officials in the current administration receive scant attention. I have not heard one question about this during Obama's transition press conferences, and the traveling press corps almost never pressed Obama on the issue during the general election campaign.

One notable exception is The Philadelphia News' Will Bunch. . . Bunch did elicit Obama's April declaration that he would ask the Attorney General to "immediately review" evidence of potential crimes by the prior administration. (That response remains Obama's most thorough statement on the matter; . . . Given the sensitivity and gravity of potential prosecutions against a prior administration, however, an independent special prosecutor is better equipped to make the decision, as many legal experts has observed. Law professor Jonathan Turley recently advocated a special prosecutor appointment, in order to investigate crimes regardless of whether the perpetrators were high-ranking officials.

. . . Some journalists do approach torture and war crimes prosecution as a serious, legal issue -- attorneys Glenn Greenwald and Scott Horton have done extensive reporting; The New York Times recently editorialized for a special prosecutor; Jeremy Brecher and Brendan Smith have pressed for war crimes accountability in The Nation, and MSNBC's Rachel Maddow has interviewed senators and experts about the Bush administration's alleged crimes.

Holding lawmakers accountable is also important. Congressional Democrats and Republicans alike have been complicit in allowing the law-breaking to go on. Late last year Glenn Greenwald pointed out the inconsistencies of a couple of senators on their stances on the practive of torture at Salon.com: "Why do Feinstein and Wyden sound much different on the torture issue now?" (12/4/08). To quote:

. . . about Dianne Feinstein's comments concerning torture in yesterday's New York Times, in which the California Senator -- who will replace Jay Rockefeller as Chairperson of the Senate Intelligence Committee -- rather clearly backtracked on what had been her repeated, unequivocal insistence throughout the year that the CIA should be required to comply with the Army Field Manual when interrogating detainees. But Time's Michael Scherer picked up on the same backtracking and did a very good job of highlighting what appears to be Feinstein's (as well as Ron Wyden's) conspicuous, and rather disturbing, reversals.

Restoring the rule of law -- One of the little noticed detrimental legal policies of the Bush administration has been to limit the jurisdictions of various courts, along with diminishing the legal standing of potential litigants. And the Supreme Court has also ruled in several cases against justice because of a perceived lack of legal standing. Slate Magazine has the story: "Revival of Justice"# (1/6/09). To quote:

The Obama administration is taking over the Department of Justice with a distinguished roster of top appointments—Elena Kagan as solicitor general, David Ogden as deputy attorney general, and Dawn Johnsen (a Slate contributor) to head the Office of Legal Counsel. Now that we know who will help attorney general nominee Eric Holder lead the department, it's time to think about priorities. One focus is whether the new DoJ will reverse course on the Guantanamo detainees, whom lawyers for the Bush administration did their utmost to keep out of court.

. . . One group inside the DoJ ought to focus, instead, on a big and basic idea: that the courts are for all of us.

Improving the work of the intelligence community at the same time as restoring constitutional protections for basic civil liberties is another huge national security issue. The qualifications of the nominees to the two top "spy" positions has been the subject of a pile of public pronouncements. Senators and Representatives weighed in as did the Intel community itself. But President-elect Obama rightly stuck to his guns in nominating men who were in no way tainted by the Bush Administration's lawlessness. One of the early stories came from Yahoo! News: "Obama' picks short on direct experience" (1/5/09) . To quote:

President-elect Barack Obama's decision to fill the nation's top intelligence jobs with two men short on direct experience in intelligence gathering surprised the spy community and signaled the Democrat's intention for a clean break from Bush administration policies.

. . . Obama is sending an unequivocal message that controversial administration policies approving harsh interrogations, waterboarding and extraordinary renditions — the secret transfer of prisoners to other governments with a history of torture — and warrantless wiretapping are over, said several officials.

Respected blogger, Josh Marshall concludes with an insightful piece on the so-called inexperience controversy. He headlines at Talking Points Memo: "Really a mystery"* (1/5/09):

I used to do a lot of intelligence reporting. But I haven't really done any to speak of in a few years. So I'm coming at this cold. But I feel instinctively suspicious of the congressional reaction to this appointment. Rockefeller is saying he's not happy. But he was a very poor ranking member and then chairman of the senate committee. So I don't think that means much. If the Obama team really didn't make a courtesy call to Feinstein, who's taking over the overseeing committee, that was a goof -- just because there's enough hard slogging getting this kind of stuff done that you don't get people ticked over stupid things. But let's not let that distract from the substance of the issue. I'm not certain what I think about this appointment yet. But on first blush, the nature of the opposition makes me more inclined to support it.

National Intelligence people have been known to manipulate the media -- And the maintstream media too often allows it to happen. Take the case of the New York Times sitting for a year on its disclosure of the administration's secret warrantless wiretapping program. Here is a less egregious recent example at The Public Record: "The CIA's Handling of the Washington Post"* (1/8/09). To quote:

The Washington Post and the mainstream media for the most part have never understood that the CIA, like other large government entities, are complex organizations and rarely governed by one set of ideas on any issue, particularly the capabilities of their leaders. There are numerous CIA officials who support the nomination of Panetta, just as there are opponents to his candidacy. Reporters need to make sure they canvas the entire community before placing front-page articles in front of the American public. They must know that the overwhelming majority of CIA officers would not talk to the press; therefore, they should be skeptical of those who do.

CQPolitics: "How Will the Obama Team Deal With Electronic Spying?" (12/3/08), by Madison Powers. There were various attempts to amend the FISA law in 2007 and 2008, but they did not succeed until July, 2008. And, in contrast to Obama's supportive positions, Hillary Clinton opposed the FISA law changes. To quote rather extensively:

. . . yesterday’s hearing in the 9th U.S. Circuit Court of Appeals in San Francisco is a reminder that the balance between national security and privacy and other civil liberties concerns is another issue that the new administration must face.

. . . The Electronic Frontier Foundation is arguing against the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA) that gives telecommunications companies retroactive civil immunity for their illegal participation in the National Security Agency’s (NSA) massive warrantless wiretapping and electronic surveillance scheme. The suit alleges that FISA Amendments Act “violates the federal government’s separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law.”

. . . until July of 2008, all [efforts to amend FISA] failed to garner enough support for two reasons. First, the bills contained the retroactive immunity provisions that many Democrats and Republicans alike opposed. Second, the proposed changes in the laws in many respects removed privacy protections and concentrated more power in the executive branch with little accountability to either courts or the Congress.

President-elect Obama has deeply disappointed a number of his civil libertarian supporters with his changing positions regarding the FISA law and his willingness to vote for a bad compromise. Getting back to the CQ Politics December story, I quote further:

. . . In February of 2008, Obama promised to vote against and to filibuster any amendments that provided civil lawsuit immunities to telecommunications corporations that cooperated with the Bush administration’s warrantless surveillance program. However, in July he disappointed his civil libertarian supporters by backing away from his commitment to oppose the immunity provision.

Obama’s statement in support of the compromise, . . . declared his intention to work to strip the offending immunity language so that full accountability for past offenses can be available to the plaintiffs in pending court cases.

Even worse from the perspective of some critics, the new proposal gave the executive branch more surveillance powers and less accountability in practice than currently existed. The American Civil Liberties Union called the amendments Act “an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance.“

Obama’s response to this criticism was the suggestion that, unlike President Bush, he could be trusted not to abuse the law and that he would examine what executive order limitations might be needed should he become president in January.

Critics remained unsatisfied with Obama’s argument for the quite obvious reason that few presidents voluntarily surrender powers of any kind. Only the firm restraints of the rule of law are adequate protection of the public from overly zealous members of any future administration who might be tempted to expand the scope of domestic spying under a legal structure in which such activities are largely invisible, even to members of Congress.

. . . How best to deal with FISA and the campaign promises to oppose retrospective immunity and limit the scope of presidential powers will likely prove to be one test of whether the new national security team is a team of rivals or the same old folks reaching the same old conclusions.

Reviving the battered rule of law, restoring the Constitution (by a constitutional law president), supporting Secretary Gates' plans to get rid of the Guantanamo gulag, while maintaining our national security with believable intelligence, will be a full time job for President-elect Barack Obama's key national security team. Just like the rest of his nominees, they will have to "hit the ground running."

Related References:

1. SpyTalk - CQ Politics: "SpyTalk's Writes and Wrongs for 2008"


2. BuzzFlash: "ER doctors suspect excessive police force"* (1/7/09)


3. BuzzFlash: "Judge says US hid evidence in case"* (1/7/09)


4. AlterNet: "How the U.S. Army's Field Manual Codified Torture -- and Still Does"* (1/7/09)

Hat Tip Key: Regular contributors of links to leads are "betmo"* and Jon#.

(Cross-posted at South by Southwest.)

On Big Brothers -- U.S. Intelligence/Security

By Carol Gee

Internal Big Brothers inside government: Homeland Security is implementing a program within the department for all employees to watch each other carefully for signs of being spies or terrorists. To quote a couple of articles:

• Types of behaviors that could be foreign espionage -- (from the CQ Behind the Lines newsletter, according to a memo obtained by the AP's Eileen Sullivan.) AP: Homeland Security Secretary Michael Chertoff . . said employees should suspect espionage if, for one example::




"A department employee has a personal relationship with a foreigner that seems suspicious."



• "Homeland Security setting up counterspy unit" from USA Today (8/12/08) via ProPublica. To quote:
  
  

  Concerns about foreign spies and terrorists have prompted the Homeland Security Department to set up its own counterintelligence division and require strict reporting from employees about foreign travel, according to a memo obtained by The Associated Press.
  
  The new directive comes as the federal government increases its counterspy efforts across all agencies and raises the awareness of intelligence vulnerabilities in the private industry as well as in protecting government secrets.
  
  The Homeland Security Department "is vulnerable to adversaries who seek information about our nation's homeland defense programs,classified or unclassified," Secretary Michael Chertoff wrote in the Aug. 4 memo to employees obtained by AP.

Homeland Security AS your Big Brother when you travel -- To quote a recent e-mail from Carolyn Frederickson of the ACLU:

Planning a vacation? Thinking about traveling outside the country? If you travel outside the United States, you can kiss your right to privacy, and perhaps your laptop, digital camera and cell phone, goodbye.

With no suspicion and no explanation, the U.S. government can seize your laptop, cell phone, or PDA as you enter the United States and download all your private information -- including your personal and business documents, emails, phone calls, and web history. The Department of Homeland Security confirms that this is the official policy.

What happens if you refuse to let the agents download your personal photos? Or if you have encrypted your private information? Then Border Patrol -- which is now an agency of the Department of Homeland Security -- can simply copy your entire hard drive or even take your device and hang on to it indefinitely.

Unfortunately, seizing laptops and cameras at the border isn’t the only travel security measure that infringes on our civil liberties. Just last month, the U.S. government's "terrorist watch list" surpassed one million names and is growing by over twenty-thousand names per month. The watch list includes the names of prominent people, like Senator Ted Kennedy (D-MA), plus hundreds of thousands of ordinary Americans -- many of them with common names like Robert Johnson and James Robinson. Your name might be on the list, but there's no way to know for sure until you are delayed -- or even detained for hours in a back room. If you discover your name is on the list, it's nearly impossible to get off. It actually took an Act of Congress to get Nelson Mandela off the list. No joke. An Act of Congress.

These abuses have something in common: They make all of us into suspects, with no rule of law and no accountability. . . Traveling shouldn’t mean checking your rights when you’re checking your luggage. It’s time for some sanity when it comes to security. Please, speak out now.

Tell Congress: it’s time to rein in travel abuses by the Department of Homeland Security.

Related to this is a possible travel remedy from my 8/13/08 CQ Behind the Lines newsletter: “Congress needs to set the rules for how border agents can delve into travelers’ laptops,” the Post opines.

State and local Big Brothers -- These items come from my 8/11/08 CQ Behind the Lines newsletter:

• "Some $4.5 million in federal funding for the Maryland State Police is imperiled by a probe into its use of a criminal database to track peaceful activists, The Washington Times tells. . ." Quoting further:
  

  The undercover infiltration of the protest groups appears legal under state law, legal analysts said. But entering a Baltimore activist's name in the drug-trafficking and terror suspect database without apparent justification could violate 1970s-era regulations stemming from revelations of domestic spying by national intelligence agencies. It also could breach Maryland privacy laws . .
  

• The local Institute for Security Studies has put together a DVD, "The Seven Signs of Terror," for people such as school police who could help spot terrorist activity, Las Vegas's CBS 4 News notes. To quote:
  
  

  The DVD, which serves the entire state of Nevada, illustrates the “Seven Signs of Terrorism” and explains how to report such signs. The “Seven Signs of Terrorism” are:
  
  • Surveillance
  • Information Gathering
  • Testing Security
  • Planning
  • Suspicious Behavior
  • Rehearsal
  • Getting Into Position
  
  According to the DVD, if a potential terrorist act is interrupted during any of the “Seven Signs” the planned act can be stopped. Ordinary citizens reporting suspicious activities they have witnessed is an important tool for law enforcement working to stop terrorist acts

Business Big Brothers -- from The Washington Post (8/12/08) comes this headline, "Some Web Firms Say They Track Behavior Without Explicit Consent," by Ellen Nakashima. To quote:

Several Internet and broadband companies have acknowledged using targeted-advertising technology without explicitly informing customers, according to letters released yesterday by the House Energy and Commerce Committee.

. . . The revelations came in response to a bipartisan inquiry of how more than 30 Internet companies might have gathered data to target customers. Some privacy advocates and lawmakers said the disclosures help build a case for an overarching online-privacy law.

. . . Edward J. Markey (D-Mass.), [ ] created the Privacy Caucus 12 years ago. "Our responsibility is to make sure that we create a law that, regardless of the technology, includes a set of legal guarantees that consumers have with respect to their information."

Markey said he and his colleagues plan to introduce legislation next year, a sort of online-privacy Bill of Rights, that would require that consumers must opt in to the tracking of their online behavior and the collection and sharing of their personal data.

Previous S/SW posts on this subject:

1. Like An Ubiquitous Spook (Sept. 2007) Part I, Part II, Part III, and Part IV
2. Bigger and Bigger Brothers (Jan. 2008)
3. Ubiquitous Big Brothers (Feb. 2008)
4. The State of the Surveillance State (April 2008)
5. Understanding Your FBI (May 2008)
   

(Cross-posted at South by Southwest.)

Tortured thinking, Part III -- the last witnesses

By Carol Gee

The House Committee on the Judiciary/Subcommittee on the Constitution, Civil Rights and Civil Liberties, held an important hearing on "Detainee Interrogation Rules" May 6. Today's post wraps up a series detailing what I think are the most significant aspects of that hearing.

What we learned is that, from very early on the lawyers at the Department of Defense, the Department of Justice, and the Office of Legal Counsel were tasked by their bosses to figure out how the law could be construed to immunize interrogators of U.S. detainees from torture charges. That is a serious accusation, but that seems to be what went on shortly after the first suspect was captured and was discovered to be uncooperative. Many in the administration, if not most, were convinced that another attack was imminent, and they were desperate to prevent that. Unfortunately that desperation seemed to mean "at almost any cost" to the integrity to the U.S. rule of law.

The first two posts in my recent series were:

1. Tortured Thinking, Part I -- the Players focused on the committee members and the hearing agenda. The hearing was chaired by New York Democrat Jerrold Nadler. His House Judiciary Committee Chairman, Democrat John Conyers of Michigan, sat in and skillfully supported the very pointed questioning from all members. I also covered the way the Republican Members generally approached the agenda with considerable seriousness, and a relative minimum of politics. The agenda was to find out more about the various memos defining extreme interrogation (what many of us call torture), written by Bush administration officials during the aftermath of the 9/11 attacks in 2001.


2. Tortured Thinking, Part II -- the Witnesses focused on two of the four witnesses' sworn testimony, that of British law Professor Phillipe Sands and Georgetown Professor David Luban. Sands has spent a year interviewing almost all of the people involved in this emerging scandal for his excellent historical analysis book, "The Green Light." He wrote a fascinating related article published in this month's Vanity Fair, referenced below. David Luban specializes in legal ethics; he pulled no punches in his testimony.
   

The last two witnesses, whose testimony is covered here, were former Reagan and Bush administration Counsel's Office lawyer David B. Rivkin and Professor Marjorie Cohn, President of the National Lawyers Guild. Their approaches to questions stood as contrasting bookends within the judgments of the four witnesses. Cohn used the term "war crimes" as opposed to Rivkin's statement, ". . . attorneys were subjected to great criticism, villified, even though the Supreme Court has upheld the key tenets of the policy saying that the Geneva Conventions do not apply to members of al Qaeda."

Professor Cohn:
Witness prepared statement: Marjorie Cohn
Professor of Law, Thomas Jefferson School of Law
President of National Lawyers Guild.

Professor Cohn was asked by Chairman Nadler about criminal prosecution for a lawyer's giving his client advice. She posited that "conspiracy involves a common plan of wrong-doing." She added that this law does not have a statute of limitations. That statement must have put the professor in the spotlight with Republican committee members, who questioned her repeatedly. I paraphrase and summarize the most significant of the interchanges, in my opinion:
To Ranking Rep. Franks' assertion that water-boarding is "controlled and only for a short time, and that some of our own soldiers were water-boarded," Cohn replied that the statutes regarding handling techniques involve the severest things we can do and that torture is illegal. She added that the information given by Khalid Sheikh Mohammed and Abu Zubaida was useless. Cohn asserted that relationship-building yields better results in the long run.
Republican Rep. Darrell Issa of California stated that he supported a ban on torture, and that "I do want to get this right and move on with that bipartisan decision made earlier" [later vetoed]. Issa asked Cohn if it is fair to lie to prisoners. She stated that interrogators cannot lie with threats against those close to the prisoner, "killing their wives, for example."
Republican Rep. Steve King of Iowa asked Professor Cohn if there had ever been a case of successfully saving lives through relationship building and gaining the trust of a prisoner. She named "Saddam Hussein, a rich source of information, who was treated with kindness by admirable soldiers, not interrogators who were mercenaries."
Bobby Scott, D-VA, asked Professor Cohn about the power of international law. It was pointed out that the Supreme Court has referred to ratified treaties in opinions. Cohn said, "There is no justification for torture under three different U.S. ratified treaties. There is no retroactive immunity allowed for torture, even when good information is obtained."
Mel Watt, D-NC, asked Professor Cohn to explain the concept of universal jurisdiction among nations over prosecutions of foreigners for heinous crimes around the world, such as the prosecution of Adolf Eichman. She encouraged foreign prosecutions for torture, if the U.S. does not.

David Rivkin
Witness prepared statement: David B. Rivkin, Jr.
Partner, Baker & Hostetler, LLP.
Former Reagan administration attorney David Rivkin also worked for the Bush White House. As such he received almost as many questions as Professor Sands and regularly interceded during the hearing with counter arguments to the other three witnesses' testimony. What follows is what struck me about Rivkins' testimony:
To Rep. Franks' interchange with Professor Cohn [above] regarding the effectiveness of severe interrogation vs. relationship-building with prisoners, Rivkin characterized it as "naive, a moral cop-out. Coercive techniques need to be debated, but nobody wants to define them. What about psychological coercion? And there is a temporal element to pain and suffering -- 10 minutes and 10 hours are different. It just can't be protracted pain. There is plenty of case law on this."
Chairman Conyers, D-MI, commended all the witnesses, "This is a good way to get at the truth. We will use the legislative coercive process of subpoena to get others to testify." He asked Rivkin to submit a "pain" definition for the record.
Republican Rep. Mike Pence of Indiana made the point to Rivkin about "keeping all this secret so terrorists can't train to resist us." The attorney posited that "Psychological coercion might work. Unlawful combatants are different. Coercive techniques do work. And this needs to be decided in the light of day." After Professor Sands comments about the Brits' conclusions regarding how to fairly treat members of the IRA, Rivkin asserted that, "Some Brits disagree. Actually the Brits 'squeezed out' 700 IRA operatives, and the British lawyers were not prosecuted." Rivkin finished this discussion by defining al Qaeda as an "existentialist threat" as contrasted with the IRA.
Another southern Democrat, Artur Davis, debated with Rivkin's assertions, using as examples the different lawful methods used in Vietnam, and Israel under the Geneva Conventions. Davis defined torture as "medieval, barbarous, and from the terrorists. Torture is illegal in Israel, even if they are under daily siege and face an existential threat." Rivkin responded that "Israel made the decision to take very high risks." Davis asked Rivkin about a presidential pardon for members of the administration and the attorney answered "he may need to consider the reasons to do so, perhaps a blanket pardon."
Republican Darrell Issa wanted to know about the fairness of lying to prisoners to obtain information. David Rivkin said that the Supreme Court has ruled it is OK to lie to them "that their partner has already confessed, or to make threats of widening the arrest net. " Rivkin mentioned that "Andrew Fastow [Enron] was subjected to threats -- horrible pressure."
Rep. Keith Ellison, D-MN, wanted Rivkin to explain to him "what works?" Rivkin said that with coerced information,"In most situations, you can check out their claims. You usually have time to check out false leads." Ellison asked him for an example of a successful intervention involving the "ticking time bomb theory." Rivkin attempted the example of capturing Khalid Sheikh Mohammed, as noted in a National Review article by Stewart Taylor, calling it "as close as you can get." Rep. Ellison did not buy his argument, nor did Professor Cohn.
Rep. Mel Watt, D-NC, asked Attorney Rivkin, "What should the committee do next?" Rivkin urged him to"just find out the narrative of what happened, exercising prosecutorial discretion." He termed Congress' pursuing prosecutions, "madness, given the facts involved."

In conclusion, Chairmen Conyers and Nadler are absolutely on the right track. The committee has issued a number of subpoenas for those more directly involved in this episode. David Addington, VP Cheney's Chief of Staff, has been ordered to appear at the next hearing on June 26. Stay tuned.

References:

• The Gavel -- Speaker Pelosi's excellent blog hearing summary: "Judiciary Hears Expert Testimony on Administration Torture Policies" (May 6, 2008, by Jesse Lee).
• South by Southwest: "Extreme Interrogation, revelations gain momentum."
• " The Green Light" is Professor Phillipe Sands' wonderful new article this month (should be required reading) in Vanity Fair Magazine.

(Cross-posted at South by Southwest.)

Extreme Interrogations -- Revelations Gaining Momentum

By Carol Gee

The more we learn about what happens to those whom our government takes into custody as threats to our national security, I increasingly have the urge to wash my hands more frequently. This news will set the tone to which I refer.

Senator Kit Bond is floating something that would tell the government, what it could not do in the way of torture. Headlined, "GOP Senator Floats Compromise Torture Measure," it was written by Paul Kiel - May 8, 2008. He includes this AP quote:

Rather than prescribe what the intelligence agency is allowed to do in an interrogation, Bond wants to write into law only what the CIA cannot do: force detainees to be naked, perform sexual acts, or pose in a sexual manner; have hoods or sacks placed over their heads or duct tape over their eyes; be beaten, shocked, or burned; threatened with military dogs; exposed to extreme heat or cold; subjected to mock executions; deprived of food, water, or medical care; or waterboarded.

Fellow "handwashers" -- I am doing a little Round-up of "Torture Stories" for your reading pleasure today. I must give grateful credit to my unflagging sources in the Blogosphere, others willing to feel uncomfortable with the material contained in many of the current national security stories coming out: "mcjoan" at DailyKos, Paul Kiel at TPM Muckraker, "emptywheel" at Firedoglake, Ryan Singel at Wired: Threat Level, and Glenn Greenwald at Salon.com. If I am away from the story for a few days, I can always count on one or more of these dedicated bloggers to keep their hands in.

"CNN, the Pentagon's "military analyst" program and Gitmo," is the title of a Glenn Greenwald post at Salon.com on May 9. Greenwald's source was a NYT-forced release of thousands of pages of Pentagon communications regarding the analysts program. Adding another twist to this messy scandal now coming out more fully, his comprehensive piece details how the true situation at the Guantanamo detention facility was white-washed during a Pentagon sponsored trip for the analysts to Cuba in 2005. Related to my recent "Tortured Thinking" posts Part I and Part II, I quote one of the key tidbits:

Demonstrating how controlled by the Pentagon were these "analysts," Shepperd's email to "help" was forwarded to top Rumsfeld aide Larry Di Rita, who replied (7470): "OK, but let's get him briefed on Khatani so he doesn't go too far on that one" -- referring to the so-called 20th hijacker Mohammed al-Khatani, whose Guantanamo interrogation had been particularly brutal, as he "was stripped naked, isolated, given intravenous fluids and forced to urinate on himself, and exercised to exhaustion during interrogations that lasted 18 to 20 hours a day for 48 of 54 days."

"The FBI's Hands Off Approach to Torture," was also written by TPM Muckracker's Paul Kiel - April 24, 2008. FBI Director Mueller appears to have been unable to have a hand in derailing the torture programs propelled by the DOD and DOJ attorneys' sullied legal opinions.To quote the key passage:

. . . what the FBI's reaction to the CIA's use of waterboarding and other forms of torture in 2002 had been: keep FBI agents out of trouble. But when House Democrats pressed as to why the FBI hadn't investigated the abuses, Mueller said his hands were tied. The CIA and the Defense Department had the green light. "There has to be a legal basis for us to investigate, and generally that legal basis is given to us by the Department of Justice."

Taken in hand by the TSA? The following information might be useful to you before your next airport terminal interrogation. Headlined, "Court: Government Must Reveal Watch-List Status to Constantly Detained Americans," by Ryan Singel, April 24, 2008, you should be able now to find out your watch list status. To quote from the opening of the story:

Eight Americans of south Asian and Middle Eastern descent who were repeatedly detained at the border for questioning will be able to learn if they are actually on the government's terrorist watch list, a federal court in Illinois ruled last week, marking the first time that citizens have been able to learn whether they have been added to a sprawling and error-prone list used for screening at borders and traffic stops.

The government invoked the powerful state secrets privilege in the case, arguing that letting the plaintiffs know if they are or aren't on the list would harm national security since that could alert them to the fact they have been under government scrutiny.

. . . The Terrorist Screening Center, which runs the list, says it has been pruning the list and removing errant entries, even as the list grows by an estimated 20,000 names a month. While the TSC says the majority of the names on the list are foreigners, most of the people compared against the list are Americans, who are checked against the list when they are stopped for a traffic violation, enter or leave the country or fly domestically.

The hand writing is on the wall -- Republican Senator Kit Bond thinks a list of "not-do's" is the answer to preventing torture. Knowing this group of interrogators with seemingly limitless inventiveness, however, they might just handily circumvent the list with any number of "other measures." If Guantanamo is closed there is no telling what secret locations might be the destiny of the detainees. And it seems that the Mainstream Media will continue to rely on their "military analysts" to keep us informed. Most people will never know how many of these retired military hands are dirty with conflicts of interest because the MSM will not even report that scandal. But at least, pretty soon we should all be able to find out if we are suspected terrorists or not.

Excuse me; I'm going to wash my hands now.

(Cross-posted at South by Southwest.)

Tortured Thinking, Part I - the Players

By Carol Gee

The Senate Committee on the Judiciary/Subcommittee on the Constitution, Civil Rights and Civil Liberties, held an important hearing on "Detainee Interrogation Rules" May 6. (The above opening link is to the committee's news release with good highlights of the hearing's testimony). The committee also authorized a subpoena for Bush administration lawyer David Addington, who actually may be willing to testify, though he might not say very much.

Judiciary Committee Chairman, John Conyers D-MI, laid the groundwork for finding out more about the role of senior government lawyers in the development of the legal opinions authorizing interrogation methods via a series of so-called torture memos:

1. 8-1-02, the Bybee memo to Alberto Gonzales containing a narrow definition of torture -- allowed interrogation methods. Withdrawn in 2004.
2. 12-2-o2, DOD Secy. Rumsfeld approved the harsher interrogation methods used at Guantanamo Bay, which may have echoed the earlier memo.
3. 3-14-03, DOJ John Yoo memo, also involved Jim Haynes, the DOD's attorney for Rumsfeld. It was similar to 8-1-02 but more extreme. This is the memo withdrawn by DOJ lawyer Jack Goldsmith.
   

Chairman Jerrold Nadler, D-NY, swore in a panel of witnesses who gave a more in-depth picture than we have previously known of our nation's recent history of "severe interrogation," what some call torture. Witnesses included British law Professor Phillipe Sands and Georgetown Professor David Luban. Other witnesses were former administration Counsel's Office lawyer David B. Rivkin and Professor Marjorie Cohn, President of the National Lawyers Guild. Hat tip to "SmileySam" at Daily Kos for his interesting article on the hearing, including some very good links. Also, this Kos blogger borrows from Dan Froomkin's well-linked blog at the WaPo: "Torture Showdown Coming."

Republicans on the Committee who asked questions included Ranking Member, Rep.Trent Franks of Arizona, Rep. Darrell Issa of California, Rep. Mike Pense of Indiana, and Rep. Steve King of Iowa. Rep. Issa was true to form, picking a fight early with Chairman Nadler over limiting members' opening statements. When denied he demanded a roll call vote on the chair's ruling, resulting in 4 "yes," 2 "no," 1 (Issa) "Hell, no" votes.

Later the Republicans were relatively thoughtful in their questioning. Rep. Franks made a point about the Yoo memo "trying to get specific," asking Professor Luban about the term "severe pain." Luban replied that to him it refers to ideas such as a dentist's drill with no anesthetic or a broken bone. He described water-boarding as "suffering." Rep. Pence discussed his idea that our methods need to be kept secret so that "terrorists could not train themselves to resist specific methods." And he wanted to find out, after 9/11 with addition American lives perhaps on the line, how you gain information from detainees who will not respond to relationship-building techniques, what he termed "the Oprah Winfrey methods." Rep. Issa supports a ban on torture. His question to David Rivkin produced the witness' opinion that, "investigations can "degenerate into a witch hunt." Rep Steve King believes that focusing on the "narrow exceptions" of U.S. torture, rather than our "long history" of justice does a disservice to the country. In asking Professor Sands to give an instance of "when our enemies were more moral that we were," King fell into a delicious trap that provoked wry smiles as he back-peddled from Sands' answer. Sands (a British citizen) said, to paraphrase, "The United States has long been the historical moral leader of the world. And, as I spent the past year working on my investigation of what happened after 9/11, I met many military leaders of whom I had a very favorable impressions. Things went wrong under the political appointees."

To be continued with "Tortured Thinking, Part II - the Witnesses." In the meantime boys and girls, your homework is to read Phillipe Sands' "Green Light." For extra credit you can watch the hearing on C-SPAN television or watch the video posted at the House Judiciary website. (links below)

References:

• The hearing is available in full at C-SPAN: House Hearing on Guantanamo Bay and Interrogation Rules: Chairman Rep. Jerrold Nadler (D-NY) presides over a a House Judiciary Constitution, Civil Rights & Civil Liberties Subcmte. hearing on detainee treatment and interrogation techniques at facilities at Guantanamo Bay, Cuba. They voted to authorize a subpoena for Vice President Cheney?s chief of staff and former legal counsel, David S. Addington to appear at a later hearing. 5/6/2008: WASHINGTON, DC: 2 hr. 22 min.


• The Senate Committee on the Judiciary -- Committee website


• " The Green Light." Professor Phillipe Sands wonderful new article this month (should be required reading) in Vanity Fair Magazine, Intro:
  

  As the first anniversary of 9/11 approached, and a prized Guantánamo detainee wouldn’t talk, the Bush administration’s highest-ranking lawyers argued for extreme interrogation techniques, circumventing international law, the Geneva Conventions, and the army’s own Field Manual. The attorneys would even fly to Guantánamo to ratchet up the pressure—then blame abuses on the military. Philippe Sands follows the torture trail, and holds out the possibility of war crimes charges.



• Representative Nadler writes at the Huffington Post (11/15/07), "No More Clever Word-play on Torture," on the torture-banning legislation subsequently vetoed by our current president: The Orderly and Responsible Iraq Redeployment Appropriations Act.


• Nov. 8, 2007 -- Hearings by the same committee on water-boarding torture at Guantanamo Bay.

(Cross-posted at South by Southwest.)

What do the protection from torture and the protection from the invasion of privacy have in common?

By Carol Gee

Building on Michael's post about torture from the top --

Where is the nexus between the right to privacy and the detainee torture question? Or is there any connection at all? The best example of the joining of the issues comes from a recent Washington Post article by Dan Eggen and Josh White on April 4. Titled, "AFTER 9/11, A SECRET MEMO -- Administration Asserted a Terror Exception on Search and Seizure," the story reveals that:

The Justice Department concluded in October 2001 that military operations combating terrorism inside the United States are not limited by Fourth Amendment protections against unreasonable searches and seizures, in one of several secret memos containing new and controversial assertions of presidential power.

The memo, sent on Oct. 23, 2001, to the Defense Department and the White House by the Office of Legal Counsel, focused on the rules governing any deployment of U.S. forces inside the country "in the event of further large-scale terrorist activities" by al-Qaeda, a Justice Department official said yesterday.

Administration officials declined to detail what domestic military operations were being contemplated at the time, and the legal status of the secret memo is now unclear. Although the memo has not been formally withdrawn, the Justice Department yesterday repudiated the idea that there are no constitutional limits to military searches and seizures in a time of war, saying it depends on "the particular context and circumstances of the search," according to a statement.

. . . Roehrkasse and other officials said the 2001 memo is not related to the administration's controversial warrantless surveillance program, which allowed a military organization -- the National Security Agency -- to monitor communications between the United States and overseas without warrants.

Justice Department officials also declined to explain a reference in Yoo's 2003 memo that said the Criminal Division "concurs in our conclusion" that federal criminal laws do not apply to the military during wartime. The division was led at the time by Michael Chertoff, now head of the Department of Homeland Security.

Attorney General Mukasey, before the Senate Appropriations Committee this morning, refused to say the Fourth Amendment has been withdrawn, according to TPM Muckraker.

The most obvious issue is the rule of law. The Justice Department's sanctioning of torture breaks both U.S. and international law, leading to behaviors that some call war crimes. YubaNet.com headline (April 10): "National Lawyers Guild Calls On Boalt Hall To Dismiss Law Professor John Yoo, Whose Torture Memos Led To Commission Of War Crimes." Warrantless illegal wiretapping does not rise to the level of a war crime, certainly. But it has gotten enough the attention in the House of Representatives to stop the amendment of the Protect America Act for almost four months now. Greenwald, on March 14, posted that "House Democrats reject telecom amnesty, warrantless surveillance." Despite widespread fear mongering, the House leadership is looking to see that domestic surveillance operated fully under the rule of law. That should include the telecom industry that enables the government to spy on its own citizens. Complicit private industry must also be forced to comply with the laws of the land.

Another issue is the level of the U.S. government's perceived strength and use of power. A wonderful forum, Project Lucidity, to which I belong has had a magnificent discussion on this topic going on for several days. The topic is, "Thank Yoo: There's more than torture behind the memos." This wide ranging and thoughtful group discussion covers much of what is in the issue of the governments use of its power. If someone in the government has the ability to snoop in the passports of all three presidential candidates what does that say about the way the administrations feels about the idea of protecting civil liberties. It would seem that they hold that responsibility in very low regard. Glenn Greenwald, on March 21, wrote about "The Obama passport snooping and the unchecked surveillance state." Well put.

It occurs to me that an additional issue upon which both turn is secrecy. The current administration is perhaps the most secretive ever, always justifying it with the excuse of "national security." The current questions about who actually authorized the use of torture began anew with the release of the "John Yoo memo." Just recently ABC News revealed that approval of what was permitted in the treatment of detainees was given at the highest levels of government. The story is headlined: "Sources: Top Bush Advisors Approved 'Enhanced Interrogation' -- Detailed Discussions Were Held About Techniques to Use on al Qaeda Suspects," by Greenburg, Rosenberg and deVogue, on April 9. To quote: "At the time, the Principals Committee included Vice President Cheney, former National Security Adviser Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft." Last month I took a second peek at the "Quantico circuit": A whistle blower has reported that wholesale data mining enables the FBI to intercept and screen content, not just who, where and how long were the conversations. It is still in the news: "Privacy Concerns Raised -- FBI Data Transfers Via Telecoms Questioned," by Ellen Nakashima at The Washington Post (April 8). At issue here is just how intrusive should the FBI wiretapping be, and how are court protections to be maintained. A whistle blower has reported that wholesale data mining enables the FBI to intercept and screen content, not just who, where and how long were the conversations.

There is also a nexus of the constitutionally apportioned powers of the executive, legislative and judicial branches of government. The legislature has oversight responsibility over the executive branch of government. An example is contained in the story of how the Department of Homeland Security treats data mining, and how they report that to Congress. Firedoglake's "looseheadprop" says, "DHS Data Mining -- It's as Bad as You Thought" (March 19). A first report to the House was not accurate about the scope of the effort and privacy protections provided. Where the nexus of the courts and the executive intersect currently are the trials of detainees. For the most part the executive has sought to be lawmaker, judge and jury when it comes to all of those labeled as terrorists. However, the Supreme Court has already intervened in a number of cases and overruled the current administration. The New York Times reports that the torture "Tapes' destruction hovers over detainee trials." To quote:

But nearly four months after the disclosure that the tapes were destroyed, the list of legal entanglements for the C.I.A., the Defense Department and other agencies is only growing longer. In addition to criminal and Congressional investigations of the tapes’ destruction, the government is fighting off challenges in several major terrorism cases and a raft of prisoners’ legal claims that it may have destroyed evidence.

And finally there is the basic question of tyranny and freedom. The Declaration of Independence was written as a statement of the 13 colonies that they wanted no more of the tyranny of King George of England. They declared that we were independent and free to govern ourselves. Some years later the Bill of Rights spelled our HOW freedom and liberty are to be protected. Protection from torture, fair and humane treatment of those held by the government, along with the protection of citizen privacy have been in place in this country for centuries. Those same provisions have been under assault for the last seven plus years. Make no mistake about the seriousness of that fact.

(Cross-posted at South by Southwest.)

Update from behind the door

By Carol Gee

By which bit of national security news will we be buoyed these days? It turns out that a number of the Bush administration's efforts claiming to protect national security have been revealed to be just the opposite. For example, the release of the Justice Department's John Yoo so-called "torture memo," House continued steadfastness regarding the FISA bill, fear mongering Republicans are often failing, and more mainstream media reports of the truth about the war in Iraq.

By which branch of Congress will United States citizens have their civil liberties protected? It turns out that the House of Representatives has had the courage to stand up to the current Bush administration's threats and fear mongering regarding the future FISA bill(s). And it has worked. The House Majority Leader is reporting that there may be room for compromise, according to TPM Muckraker, 4/1/08: "Hoyer: The Administration wants to talk." Also, "It Turns Out There Was No Wolf," by emptywheel, 4/1/08, presents a note of cautious optimism that checks and balances may actually be viable.

By which administration officials were the Constitutional privacy protections/civil liberties most recently betrayed? A couple of reliable bloggers posted the latest on the Bush administrations public relations blitz during the recent congressional recess. It turns out that the foreign surveillance program laws were routinely broken prior to the revelation of a far reaching domestic spying program. The administration continues to lie, and continues to lose credibility with larger segments of the general population. Bloggers emptywheel (with "The DNI Is Well-Meaning. Really. Except with Those He Claims Want No IC." -- 4/1/08) and Wired - Threat level (with "In Spy Debate, Top Spy Lobbies, Attorney General Misleads" -- 4/1/08). To quote the latter:

Democrats no longer trust the "straight shooting" Director of National Intelligence Michael McConnell and consider him to be a 'lobbyist.' . . . And now the nation's top law enforcement official [Mukasey] is lying about wiretapping laws.

By which agency would you rather be spied upon, the Pentagon or the FBI? Well through court action the ACLU has found out that in this case you need not have choosen, because they were partnered in the effort, using NSL letters as the mechanism. It turns out the the FBI abused the practice by issuing the letters almost indiscriminately, including issuing many for the Pentagon. It also turns out that the Pentagon did its domestic spying through a mechanism known as CIFA, now closed. See "Pentagon closing CIFA," by emptywheel, 4/1/08. Emptywheel closes with this intriguing suspicion, "I don't know how I'll occupy my time until I find where they're going to hide CIFA."

By which branch of internal politics is the current administration now being dominated? Steve Clemons wrote this question in "Purging the neocons" at Andrew Sullivan, 8-31-07. During the early George Bush years, the neocons were clearly in control and alligned with "pugnacious Jesse Helms-revering nationalists like Dick Cheney and John Bolton." It turns out that now many neocons have left government service along with those who were forced out, such as Scooter Libby. To quote Clemons' conclusion last year,

. . . the rise of the "liberal realists" as a counter to the neocons -- but what may be happening is that the Bill Kristol-led neocons harmed this nation during their time at the wheel and those with a conscience, those who understand what checks and balances are about, what habeas corpus means in a justice system, who understand accountability for tragedies like Abu Ghraib are bouncing back to the norms this country has traditionally embraced.

By which of these stories do I become more optimistic? Actually whenever the door to truth is opened we have reason to be hopeful. In the past we could only rely upon the Fourth Estate, the press, to do that for us. Very fortunately, the blogosphere and courageous administration whistle-blowers and a few officials acting in good faith, have also managed to get at the truth within the shadows. It is a very good thing!

(Cross-posted at South by Southwest.)

Crimes of Yoo

By Michael J.W. Stickings

Must-read Greenwald:

The fact that John Yoo is a Professor of Law at Berkeley and is treated as a respectable, serious expert by our media institutions, reflects the complete destruction over the last eight years of whatever moral authority the United States possessed. Comporting with long-held stereotypes of two-bit tyrannies, we're now a country that literally exempts our highest political officials from the rule of law, and have decided that there should be no consequences when they commit serious felonies.

John Yoo's Memorandum, as intended, directly led to -- caused -- a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush's White House counsel, Alberto Gonzales, and Dick Cheney's counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.

In short, the Bush Administration committed war crimes. Needless to say, a demand for justice is in order.

Make sure to read Glenn's entire post. And see also Scott Horton at Harper's, Phillippe Sands at Vanity Fair, and the ACLU.

Sands: "The abuse, rising to the level of torture, of those captured and detained in the war on terror is a defining feature of the presidency of George W. Bush."

Administration lies and cover-ups

By Carol Gee

Today is what is known as April Fools Day. About.com explains what it is:

. . . an observance that takes place in many western countries every April 1, traditionally known as April Fools' Day or All Fools' Day (aka Poisson d'Avril — "April Fish" — in France). It is a day when humor reigns and harmless pranks, practical jokes, and hoaxes are sanctioned. Customary practices range from simple tricks played on friends, family, and coworkers to elaborate media hoaxes concocted for mass consumption.

Traditionally we "hook" someone by telling them something that is not true, they believe it, and you get the fun of making them look like a fool for believing the story in the first place. It was always intended to be in good fun. I was always the perfect subject for the joke; I was never able to be the perpetrator, so I missed out on a lot of the fun. The rest of this post is not fun, it is about foolishness.

April Fools List -- Today's post is about foolish people from the past 7 years that have attempted to hook us by telling us some things that were not true and telling "lies of ommission" that are intended to cover up the truth. But unlike in the April Fool's scenario, they are the ones who look like fools, not us. They might deserve a "by" from us if they had confined their tall tales to April 1 each year, and then fessed up to their fibs. But that has never happened. What follows are three news stories that name names and cover the truth of multiple lies and cover-ups that will leave the current administration's reputation ruined.

Named: John Ashcroft, Harriet Miers, Condoleezza Rice -- For many months the B ush administration attempted to prevent the revelation of the existence of an illegal warrantless wiretapping program, operating outside of the Foreign Intelligence Surveillance Act. Finally the NYT decided to break the story. The reporters won a Pulitzer prize for their work. Slate Magazine publishes the story behind the Lichtblau story on warrantless wiretapping. (Wed. 3/26/08) To quote:

For 13 long months, we'd held off on publicizing one of the Bush administration's biggest secrets. Finally, one afternoon in December 2005, as my editors and I waited anxiously in an elegantly appointed sitting room at the White House, we were again about to let President Bush's top aides plead their case: why our newspaper shouldn't let the public know that the president had authorized the National Security Agency, in apparent contravention of federal wiretapping law, to eavesdrop on Americans without court warrants.

. . . For more than an hour, we told Bush's aides what we knew about the wiretapping program, and they in turn told us why it would do grave harm to national security to let anyone else in on the secret. Consider the financial damage to the phone carriers that took part in the program, one official implored. If the terrorists knew about the wiretapping program, it would be rendered useless and would have to be shut down immediately, another official urged: "It's all the marbles." The risk to national security was incalculable, the White House VIPs said, their voices stern, their faces drawn. "The enemy," one official warned, "is inside the gates." The clichés did their work; the message was unmistakable: If the New York Times went ahead and published this story, we would share the blame for the next terrorist attack.

More than two years later, the Times' decision to publish the story—a decision that was once so controversial—has been largely overshadowed by all the other political and legal clamor surrounding President Bush's warrantless wiretapping program: the dozens of civil lawsuits; the ongoing government investigations; the raging congressional debate; and the still-unresolved question, which Congress will take up again next week, of whether phone companies should be given legal immunity for their cooperation in the program. Amid the din, it's easy to forget the hits that the newspaper took in the first place: criticism from the political left over the decision to hold the story for more than a year and from the right over the decision to publish it at all. But the episode was critical in reflecting the media's shifting attitudes toward matters of national security—from believing the government to believing it less.

Named: Former Attorney General Alberto Gonzales and current AG, Michael Mukasey -- Since the Congress went in its Spring Break recess, various Bush administration officials and Congressional Republicans have been speaking out in public urging passage of the Senate's version of amending and extending the FISA laws. And it has been the scene of some of the biggest "whoppers" to come out of Washington in recent memory. In addition there have been a steady drip of inadvertant revelations that have been very helpful to the cause of truth. Glenn Greenwald's "Michael Mukasey's tearful lies," (Sat. 3/29/08) is an example. Greenwald concludes:

These are multiple falsehoods here, and independently, this whole claim makes no sense. There is also a pretty startling new revelation here about the Bush administration's pre-9/11 failure that requires a good amount of attention.

Even under the "old" FISA, no warrants are required where the targeted person is outside the U.S. (Afghanistan) and calls into the U.S. Thus, if it's really true, as Mukasey now claims, that the Bush administration knew about a Terrorist in an Afghan safe house making Terrorist-planning calls into the U.S., then they could have -- and should have -- eavesdropped on that call and didn't need a warrant to do so. So why didn't they? Mukasey's new claim that FISA's warrant requirements prevented discovery of the 9/11 attacks and caused the deaths of 3,000 Americans is disgusting and reckless, because it's all based on the lie that FISA required a warrant for targeting the "Afghan safe house." It just didn't. Nor does the House FISA bill require individual warrants when targeting a non-U.S. person outside the U.S.

. . . UPDATE II: The San Francisco Chronicle reported on the Mukasey speech and is asking some of the right questions:

Mukasey did not specify the call to which he referred. He also did not explain why the government, if it knew of telephone calls from suspected foreign terrorists, hadn't sought a wiretapping warrant from a court established by Congress to authorize terrorist surveillance, or hadn't monitored all such calls without a warrant for 72 hours as allowed by law. The Justice Department did not respond to a request for more information.

As indicated, FISA didn't require a warrant for that call, but these questions have to be pursued. Mukasey can't be allowed to drop such a deceitful little bombshell like this -- blaming FISA for the Bush administration's failure to detect the 9/11 attacks -- and then refuse to answer basic questions about his incredibly manipulative claims.

Named: David Addington, Dick Cheney, Alberto Gonzales, George J. Tenet, Porter J. Goss. Pictures generally do not lie, unless they have been intentionally doctored. The videos taken over the years of CIA interrogations of detainees, evidently told truths that the agency did not want revealed. So they were destroyed. What follows is an excellent history and analysis of the scandal and remaining legal difficulties in a New York Times story on the CIA destruction of tapes (Fri. 3/28/08). To quote:

But nearly four months after the disclosure that the tapes were destroyed, the list of legal entanglements for the C.I.A., the Defense Department and other agencies is only growing longer. In addition to criminal and Congressional investigations of the tapes’ destruction, the government is fighting off challenges in several major terrorism cases and a raft of prisoners’ legal claims that it may have destroyed evidence.

“They thought they were saving themselves from legal scrutiny, as well as possible danger from Al Qaeda if the tapes became public,” said Frederick P. Hitz, a former C.I.A. officer and the agency’s inspector general from 1990 to 1998, speaking of agency officials who favored eliminating the tapes. “Unknowingly, perhaps, they may have created even more problems for themselves.” . . . “This is like any other cover-up,” Mr. Remes said. “We’ve only scratched the surface.”

The question remains. Will we be looked on as a foolish country; is no one in the list of fools (the post's list is not inclusive) ever really held accountable?