Willful blindness

Dan Froomkin notices the odd urge of our elite pundits to call for forgiveness and forgetting rather than investigations on the use of torture.

Now, a seemingly endless and horrifying series of revelations has unleashed an intense public reaction -- while at the same time calling attention to all that we still don't know. And with Barack Obama as president -- despite his own reluctance to "look backward," as he puts it -- serious inquiry into what happened seems a distinct possibility.

There is an obvious partisan aspect to the current debate, as Republican leaders have fallen in lockstep behind the former Bush officials defending torture as legal and necessary. But it doesn't need to be that way. And I suspect that as we learn more -- and as the defense of clearly repugnant and illegal acts becomes more of a political loser -- Republicans will choose not to allow Bush-era torture to define their party.

That would leave a motley -- and yet still consequential -- alliance of the directly and indirectly culpable as the final defenders of torture know-nothingism. That group includes not only former administration officials and members of the intelligence community, but the political and media leaders -- Republican and Democrat alike -- who chose acquiescence over outrage and were a key part of keeping the torturers' secrets for so long.

Eventually, Dick Cheney will get his wish and we are going to get a full and nausiating picture of what was done to "protect the American people." After five years of hints and glimpses, we'll no longer be able to ignore it.

"Idiosyncratic views"

In other words, John Yoo's views were known to be batshit crazy, so that should shield him from prosecution over actions taken because of his views.

The shield against prosecution provided by the Bush legal team’s assurances has led some critics to focus on the role played by the lawyers themselves, like Mr. Cheney’s counsel, David S. Addington; Mr. Rumsfeld’s counsel, William J. Haynes II; and the authors of the Justice Department memorandums: John C. Yoo, Jay S. Bybee and Steven G. Bradbury.

Legal specialists from across the ideological spectrum have criticized those memorandums, especially a set written in 2002 by Mr. Yoo and Mr. Bybee, who is now a federal judge. Some have accused the lawyers of deliberately writing down a false reading of the law to enable policy makers to violate it with impunity.

But there is little precedent for prosecuting government lawyers who provided arguably bad legal opinions. Moreover, Mr. Yoo, the memorandums’ principal author, had espoused idiosyncratic views about presidential power before joining the Justice Department, so it would be difficult to prove that he did not believe what he was writing.

Good to know he's teaching at Berkeley.

Sun burn

David Ignatius comes to an odd conclusion regarding Obama's (court ordered) decision to release the torture memos.

America will be better off, in the long run, for Obama's decision to expose the past practice of torture and ban its future use. But meanwhile, the country is fighting a war, and it needs to take care that the sunlight of exposure doesn't blind its shadow warriors.

I'm unclear here. What "war" is he talking about? The war in Iraq? Is he suggesting we should permit CIA agents carte blanche there? Is he pushing the Bush administration argument that the Geneva Conventions are for pussies? Or Afghanistan? I'm sure members of the Taliban will be easily scared by waterboarding...maybe after the 183rd time, anyway.

No, he must mean the Global War on Terror (GWOT), which, since you can't declare war on a tactic, will go on and on and on. Should we shield our CIA operatives' eyes (or our own) forever?

The problem here is not the decision to release the memos. The problem here -- and what the CIA should be really pissed about -- was the decision by the Cheney/Rumsfeld junta (and the small animal torturers the administration went to for legal counsel) to demand that the CIA use torture in the first place. Without any regard for its efficacy, let alone its morality.

SERE Tactics

The Bush administration (along with Congressional leaders) approved the use of torture without any effort to understand the history of the methods they were using or even whether professional interrogators thought they would work. Typically, they made decisions that would seriously undermine our nation's reputation and credibility, our moral standing vis a vis totalitarian governments, and our ability to eventually bring members of al Qaeda to justice, without so much as a debate.

In a series of high-level meetings in 2002, without a single dissent from cabinet members or lawmakers, the United States for the first time officially embraced the brutal methods of interrogation it had always condemned.

This extraordinary consensus was possible, an examination by The New York Times shows, largely because no one involved — not the top two C.I.A. officials who were pushing the program, not the senior aides to President George W. Bush, not the leaders of the Senate and House Intelligence Committees — investigated the gruesome origins of the techniques they were approving with little debate.

According to several former top officials involved in the discussions seven years ago, they did not know that the military training program, called SERE, for Survival, Evasion, Resistance and Escape, had been created decades earlier to give American pilots and soldiers a sample of the torture methods used by Communists in the Korean War, methods that had wrung false confessions from Americans.

Even George J. Tenet, the C.I.A. director who insisted that the agency had thoroughly researched its proposal and pressed it on other officials, did not examine the history of the most shocking method, the near-drowning technique known as waterboarding.

The top officials he briefed did not learn that waterboarding had been prosecuted by the United States in war-crimes trials after World War II and was a well-documented favorite of despotic governments since the Spanish Inquisition; one waterboard used under Pol Pot was even on display at the genocide museum in Cambodia.

They did not know that some veteran trainers from the SERE program itself had warned in internal memorandums that, morality aside, the methods were ineffective. Nor were most of the officials aware that the former military psychologist who played a central role in persuading C.I.A. officials to use the harsh methods had never conducted a real interrogation, or that the Justice Department lawyer most responsible for declaring the methods legal had idiosyncratic ideas that even the Bush Justice Department would later renounce.

The process was “a perfect storm of ignorance and enthusiasm,” a former C.I.A. official said.

One can reasonably understand that, with lower Manhattan still smoldering, such techniques could be discussed and, even, approved -- ticking time bomb and all that. What boggles the mind is that there was never any effort, once the threat of more, imminent attacks was removed, to revisit these decisions in light of greater information about their history and effectiveness.

The Bush Six

Jane Mayer on the English barrister who helped make the Spanish indictment of Feith, Addington, etc., happen.

It is hard to predict what will happen next, but, if arrest warrants are issued, the Obama Administration may be forced either to extradite the former officials or to start its own investigation. Sands, who admires Obama, said, “I regret that I have added to his in-box when he has so much else to sort out. But I hope he does the right thing. There’s not much dispute anymore: torture happened, and the law is clear—torture must be punished.”

Petraeus delivers

A smackdown on Cheney, that is.

Petraeus has maintained for some time that he has no intentionof seeking either Party's nomination in 2012, but such denials tend to be pro forma at such an early date and would not be held against him should he change his mind as 2012 nears. However, in an appearance on CNN yesterday, Petraeus made comments that ran afoul of one of the modern GOP's litmus tests: Petraeus suggested that he opposes the use of torture, and that he disagrees with Vice President Cheney when the latter asserts that abstaining from torture makes our country less safe.

When presented with Cheney's assertion to that effect, Petraeus said the following (via Think Progress):

Well, I wouldn’t necessarily agree with that. I think in fact that there is a good debate going on about the importance of values in all that we do. I think that if one violates the values that we hold so dear, that we jeopardize [our troops]...We think for the military, in particular that camp, that’s a line [torture] that can’t be crossed. [...]

It is hugely significant to us to live the values that we hold so dear and that we have fought so hard to protect over the years.

"Unimaginable pressure"

It seems that Justice Dept.'s Office of Professional Responsibility is prepared to release a report that's making John Yoo and other members of the BuCheney administration's Office of Legal Counsel very, very uncomfortable.

As Andy Serwer notes, while there probably are no criminal ramifications, making this public and making sure the tender aspiring lawyers John Yoo teaches understand that it may very well be illegal if the president does it would be a very good outcome.

The turning point

Dahlia Lithwick and Phillip Sands on Susan Crawford's interview with Bob Woodward:

But even these three consequences do not in themselves bring a turning point. Whatever her reasons for speaking now—the fact that she chose to do so with a journalist whose name resonates around the globe and is indelibly associated with presidential criminality—itself changes the terms of the debate. Whether torture occurred and who was responsible will no longer be issues behind which senior members of the administration and their lawyers and policymakers can hide. The only real issue now is: What happens next?

The answer to that question takes you to a very different place when the act is torture, as Crawford says it is. Under the 1984 Torture Convention, its 146 state parties (including the United States) are under an obligation to "ensure that all acts of torture are offences under its criminal law." These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Sen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.

Good thing for him that George Bush doesn't like to travel abroad.

Change we can believe in --- where it counts

Some odds and ends...

Glenn Greenwald approves of Obama's choice for Office of Legal Counsel. It appears that the president-elect is serious about restoring the rule of law for the Executive Branch.

I first read these posts of Johnsen's a few weeks ago when a reporter asked me about my reaction to the possibility that she might be appointed to head the OLC. Beyond these articles, I don't know all that much about her, but anyone who can write this, in this unapologetic, euphemism-free and even impolitic tone, warning that the problem isn't merely John Yoo but Bush himself, repeatedly demanding "outrage," criticizing the Democratic Congress for legalizing Bush's surveillance program, arguing that we cannot merely "move on" if we are to restore our national honor, stating the OLC's "core job description" is to "say 'no' to the President," all while emphasizing that the danger is unchecked power not just for the Bush administration but "for years and administrations to come" -- and to do so in the middle of an election year when she knows she has a good chance to be appointed to a high-level position if the Democratic candidate won and yet nonetheless eschewed standard, obfuscating Beltway politesse about these matters -- is someone whose appointment to such an important post is almost certainly a positive sign. No praise is due Obama until he actually does things that merit praise, but it's hard not to consider this encouraging.

And, speaking of appointments that make me optimistic that the "24" nightmare we've been living these past eight years may be coming to a close, we may have a new CIA Director who actually opposes treating such things as "simulated drowning" as "enhanced interrogation techniques.

As Joe notes below, multiple news outlets are reporting that Obama has found his next CIA director: Leon Panetta, who once quit the Nixon Administration in protest over his Civil Rights policy, and later became a chief of staff to President Bill Clinton.

On cue, Marc Ambinder finds the clip, which answers the most immediate question. What are Panetta's views on torture? This is what Panetta wrote in the Washington Monthly earlier this year:

Those who support torture may believe that we can abuse captives in certain select circumstances and still be true to our values. But that is a false compromise. We either believe in the dignity of the individual, the rule of law, and the prohibition of cruel and unusual punishment, or we don't. There is no middle ground. We cannot and we must not use torture under any circumstances. We are better than that.

And in today's edition of "What took them so long," Obama hasn't even been sworn in yet, and still we find John Yoo and John Bolten calling for restraints on the Executive Branch, and Mitch McConnell arguing that the Republican Party is all about fiscal discipline. I mean, we all knew that come the new administration, the GOP would forget about their talk of a "Wartime President," and "The Constitution isn't a suicide pact" and "Deficits don't matter." I just expected them to wait a bit, if only for appearances sake.

As Krugman says, "That's pretty rich."

Obama and al-Marri

Lots of challenges for President Obama, but two stand out as potentially the most perilous: his stewardship of the economy and how far he'll go in dismantling the imperial presidency.

WASHINGTON — Just a month after President-elect Barack Obama takes office, he must tell the Supreme Court where he stands on one of the most aggressive legal claims made by the Bush administration — that the president may order the military to seize legal residents of the United States and hold them indefinitely without charging them with a crime.

The new administration’s brief, which is due Feb. 20, has the potential to hearten or infuriate Mr. Obama’s supporters, many of whom are looking to him for stark disavowals of the Bush administration’s legal positions on the detention and interrogation of so-called enemy combatants held at Navy facilities on the American mainland or at Guantánamo Bay, Cuba.

During the campaign, Mr. Obama made broad statements criticizing the Bush administration’s assertions of executive power. But now he must address a specific case, that of Ali al-Marri, a Qatari student who was arrested in Peoria, Ill., in December 2001. The Bush administration says Mr. Marri is a sleeper agent for Al Qaeda, and it is holding him without charges at the Navy brig in Charleston, S.C. He is the only person currently held as an enemy combatant on the mainland, but the legal principles established in his case are likely to affect the roughly 250 prisoners at Guantánamo.

Many legal experts say that all of the new administration’s options in Mr. Marri’s case are perilous. Intelligence officials say he is exceptionally dangerous, making deportation problematic.

Trying him on criminal charges could be difficult, too, in part because some of the evidence against him may have been obtained through torture and would not be admissible.

And staying the course in the Marri case would outrage civil libertarians.

“If they adopt the Bush administration position, or some version of it,” said Brandt Goldstein, a professor at New York Law School, “it is going to be a moment of profound disappointment for everyone in the legal community and Americans generally who believe that the Bush administration has tried to turn the presidency into a monarchy.”

In a statement, a spokeswoman for Mr. Obama, Brooke Anderson, said he “will make decisions about how to handle detainees as president when his full national security and legal teams are in place.”

That sounds like a hedge.

And if the evidence of al-Marri's relative dangerousness comes from the Torture Sessions with Khalid Shaikh Mohammed, then I hope his security and legal team view it with extreme skepticism.

Torturing Blagojevich, torturing in our name

I was thinking a deep thought: Perhaps if more American journalists had asked Bush somewhat more rigorous questions during the run-up to the Iraq invasion, an Iraqi journalist wouldn't have felt compelled to throw his loafers at the President of the United States.

Anyway, as Greenwald alludes, it would be peachy if during Obama's next news conference, journalists would ask the president-elect slightly less about a meaningless act of corruption in Chicago (that might not even have been illegal) and slightly...anything...about the bipartisan Senate report -- released only last Thursday -- indicating that the torture and abuse of Iraqi and Afghani prisoners was the result of actions by the highest ranking members of the Bush administration, including Bush himself.

This Report was issued on Thursday. Not a single mention was made of it on any of the Sunday news talk shows, with the sole exception being when John McCain told George Stephanopoulos that it was "not his job" to opine on whether criminal prosecutions were warranted for the Bush officials whose policies led to these crimes. What really matters, explained McCain, was not that we get caught up in the past, but instead, that we ensure this never happens again -- yet, like everyone else who makes this argument, he offered no explanation as to how we could possibly ensure that "it never happens again" if we simultaneously announce that our political leaders will be immunized, not prosecuted, when they commit war crimes. Doesn't that mindset, rather obviously, substantially increase the likelihood -- if not render inevitable -- that such behavior will occur again? Other than that brief exchange, this Senate Report was a non-entity on the Sunday shows.

Instead, TV pundits were consumed with righteous anger over the petty, titillating, sleazy Rod Blagojevich scandal, competing with one another over who could spew the most derision and scorn for this pitiful, lowly, broken individual and his brazen though relatively inconsequential crimes. Every exciting detail was vouyeristically and meticulously dissected by political pundits -- many, if not most, of whom have never bothered to acquaint themselves with any of the basic facts surrounding the monumental Bush lawbreaking and war crimes scandals. TV "journalists" who have never even heard of the Taguba report -- the incredible indictment issued by a former U.S. General, who subsequently observed: "there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account" -- spent the weekend opining on the intricacies of Blogojevich's hair and terribly upsetting propensity to use curse words.

Emphasis Greenwald's, of course.

Experiencing torture firsthand -- and getting fired for it

This is, to borrow the phraseology of our soon to be new AG, "abhorrent."

Daniel Levin is a dyed-in-the-wool conservative Republican. Now recall Michael Mukasey’s suggestion that he didn’t know what waterboarding was? Levin took a logical approach: he decided to experience it firsthand. And he came to a conclusion that, in my mind, shows unacceptable flexibility in accepting the technique. But how did the Bush White House react to this? It was swift and simple: Levin was forced out of office.

When Levin took over from Goldsmith, he went to work on a memo that would effectively replace the Bybee memo as the administration’s legal position on torture. It was during this time that he underwent waterboarding. In December 2004, Levin released the new memo. He said, “Torture is abhorrent” but he went on to say in a footnote that the memo was not declaring the administration’s previous opinions illegal. The White House, with Alberto Gonzales as the White House counsel, insisted that this footnote be included in the memo.

But Levin never finished a second memo imposing tighter controls on the specific interrogation techniques. Sources said he was forced out of the Justice Department when Gonzales became attorney general.

The Bush Administration’s swift reaction: any deviation from the torture litmus test results in dismissal.

The matter raises some more very unpleasant questions.

Levin was trying to impose some guidelines on the use of waterboarding as a technique. The purpose of the guidelines was to preserve some very questionable basis to argue that the practice was not torture. Why did the Administration stop this? I can only see one explanation. They wanted full flexibility. That means that they contemplated practices that would venture into the most extreme, cruel and horrible treatment. No limitations. Let the torturer have at it.

Impeach George W. Bush and Richard Cheney. Now. Their fear of prosecution for their actions is strong evidence of their guilt.

One of the questions that's been troubling me during this "debate" over "techniques." How long before these "abhorrent" yet still-legal sorta techniques begin to seep into domestic law enforcement?