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In new memoir, Bush makes clear he approved use of waterboarding (R. Jeffrey Smith, WaPo, 11/3):

In his book, titled “Decision Points,” Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was “Damn right” and states that he would make the same decision again to save lives, according to a someone close to Bush who has read the book.

After headlining this story “But you know, what the hell” on Facebook, I got into an online discussion with a friend about it a couple of days later; his take was not quite a shrug, but something like it — more or less “nothing new here.”  To be clear: he didn’t approve of the torture at all, he just didn’t see what was newsworthy about the story.  And indeed, the Post story continued:

Bush previously had acknowledged endorsing what he described as the CIA’s “enhanced” interrogation techniques - a term meant to encompass irregular, coercive methods - after Justice Department officials and other top aides assured him they were legal. “I was a big supporter of waterboarding,” Vice President Richard B. Cheney acknowledged in a television interview in February.

My friend argued that for either Bush or Obama, “Expecting public self-critical analysis from these folks is like expecting Hulk Hogan to admit that pro wrestling is rigged.” I replied:

You mistake my point, which I expressed too obliquely. My point is “simply” that we appear to have Bush’s confession that he broke laws and international obligations against torture. His blustery confidence that he was right to do so is irrelevant; the point is that he confessed to doing so. Were this a country with a functioning legal system, this would prompt prosecutors to begin legal action.

My brevity was intended to convey: this is how to commit a crime and get away with it. First, commit the crime. Then, hide it as long as possible. Then, deny it was a crime. Then, deny what you did fit the definition of the crime. (”We do not torture,” he said repeatedly.)  Always, blur responsibility so that it was perhaps ‘bad apples’ who freelanced the crime. Then persuade your successor to take part in the coverup. Then write a book about it.  [...]

Bush’s contrition isn’t the issue to me, I couldn’t care less about that. Our betrayal of ourselves is.

My friend made the reasonable point that if the public can’t be bothered with Bush’s lies to get us into a war, the chances of its getting bothered about torture are even less.  Maybe so.  Yet while there is perhaps some question about a head of state of a sovereign nation tilting that nation to war, there are actual, specific statutes and treaty obligations against torture, and specific means to see that failing to meet those obligations is punished.  Somehow, torture seems so specific and wrong to me that it seems harder to evade responsibility. Though this war was not, war might sometimes be justified; torture can never be. At any rate, in his Nation article George W. Bush: Torturer-in-Chief, Georgetown law professor David Cole points out:

…Bush and Cheney are not immune. In fact, the United States is legally obligated by the Convention Against Torture, a treaty we helped draft, and have signed and ratified, to investigate any credible allegations of torture by a person within US jurisdiction. And if the United States does not take action, other nations are authorized to do so, under the principle of “universal jurisdiction,” which treats torture as so heinous that its perpetrators can be investigated and prosecuted by any country if their own country fails to take corrective action. [...]

…the principle of universal jurisdiction, combined with our government’s failure to take any steps toward accountability, means that Bush and Cheney can be investigated and prosecuted anywhere in the world. They may feel confident that President Obama will not have the temerity to hold them accountable, but it’s not clear they should be confident about the rest of the world. Two investigations of US complicity in torture are already pending in Spain, where Pinochet was initially investigated. And Poland has recently opened a criminal investigation of torture at a CIA “black site” there. Bush and Cheney may want to limit their vacations to the homeland for the foreseeable future.

To join my friend in realism — whether as a means of triaging doomed expectations or not, whether disillusioned or not — I don’t suppose that much will come of this, either. I don’t really expect Spain or Poland to indict Bush or Cheney, though I’d frankly cheer if they did; I imagine they’ll back down if confronted, though I’d support them not doing so.

It seems like all those of us appalled by all of this can say is ’shame.’ But maybe that isn’t just a matter of scolding or blushing; maybe shame means more than mere emotional discomfort. For starters, we obviously undo the reciprocal expectation that American soldiers can expect not to be mistreated by their captors.  But there are other results, less tangible, but maybe more influential.

Even if there aren’t formal consequences for systematic, high level US approval of torture (and failure to punish that), there will be informal, but powerful ones.  Public opinion around the world — among even our closer allies — is not going to be very teary-eyed about the accelerating loss of US prestige/dominance in the world.  That loss mainly has to do with economic decline — but we’ll have simultaneously, and I’m afraid rightly, lost respect and friendship as well. We’ll just be the crazy, nasty Uncle Sam in the attic, a near-rogue nation if not a full-fledged one.

That image will be all too well founded, and that will matter. As we get used to torture by the US, we will need to get used to its consequences as well.

Via Hullabaloo, here is some remarkable amateur footage of former Secretary of State Condoleeza Rice being questioned (on Monday) by students in Stanford University’s Roble Hall dormitory.  The whole thing is worth watching — from between your fingers — as Rice puts on a surreal performance:

1ST QUESTIONER [3:30]: …even in World War II, as we faced Nazi Germany, probably the greatest threat that America has ever faced, even then…
RICE [3:37]: With all due respect, Nazi Germany never attacked the homeland of the United States.
1ST QUESTIONER [3:44]: They bombed our allies.
RICE [3:46]: Just a second. Three thousand Americans died in the Twin Towers and in the Pentagon.
1ST QUESTIONER [3:52]: Five hundred thousand died in World War II, and yet we did not torture the prisoners of war.
RICE [3:55] (waving finger no): …And we didn’t torture anybody here either.
1ST QUESTIONER [4:00]: We tortured them in Guantanamo Bay.
RICE [4:03]: No.  No, dear. You’re wrong. You’re wrong.  We did not. torture. anyone.  And Guantanamo Bay by the way was considered a model quote [makes air quotes] medium security prison by representatives of the Organization for Security and Cooperation in Europe who went there to see it.  Did you know that?
1ST QUESTIONER [4:20]: Were they present for the interrogations?
RICE [4:22]: No - did you know that the Organization — just answer me — did you know that the Organization of Security and Cooperation in Europe said Guantanamo was a *model* medium security prison?
1ST QUESTIONER [4:20]: No, but I feel that changes nothing.
RICE [4:33]: No - did you know that?
1ST QUESTIONER [4:35]: I did not know that but that…
RICE [4:36]: All right, no,, now wait a second if you didn’t know that, maybe before you make allegations about Guantanamo you should read.  All right?  Now, the ICRC also had access to Guantanamo, and they made no allegations about interrogations at Guantanamo.  What they did say is that they believed that indefinite detention — where people didn’t know whether they could come up for trial — which is why we tried through the military commissions system to let people come up for trial.  Those trials were stayed by whom?  Who kept us from holding the trials?
1ST QUESTIONER [5:17]: I can’t answer that question.
RICE [5:18]: Do your homework first.

Passing over Rice’s implication that defeating Hitler was both optional and easy, it turns out (via 2PoliticalJunkies) that the alleged OSCE “stamp of approval” came from a guy who tagged along with an OSCE delegation, but  — according to the OSCE — was “not employed or commissioned by the OSCE” and whose views should “not be taken as being made on behalf of the 55-nation body.”

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We have, in my view, a fairly simple set of connected propositions:

1. Torture is illegal under United States law and international law.*
2. The United States of America knows of Americans who have committed torture, as well as of Americans who have conspired to commit torture.**
3. The United States of America is required by U.S. statute and international treaty to prosecute such crimes when it becomes aware of them.***

It’s really all over but the shouting and denials when you set these propositions next to each other.

Of course, shouting and denials there will be.  But while I’d expect it from borderline psychopaths like Karl Rove, Rush Limbaugh, and Dick Cheney, it remains unsettling to see it from David Broder, who this weekend penned the most shameful editorial of a once illustrious career. Broder’s Sunday “Stop Scapegoating” piece is a kind of negative Gettysburg Address: a radical downward redefinition of the American creed.  His lazy, deeply dangerous argument against prosecution boils down to one irrelevant canard, one telling assertion, and one pitiful abdication of what it means to be an American citizen.

Accountability cloaks vengeance - so no accountability
Broder’s irrelevant canard comes early in the piece in guessing at the motives of those who want prosecution, and pretending that should matter:

Obama is being lobbied by politicians and voters who want something more — the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps — or, at least, careers and reputations. Their argument is that without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.

As hilzoy writes, “First, who died and made David Broder Sigmund Freud? How on earth does he presume to know what the actually motivates those of us who think that the people who authorized torture should be investigated?” But also: “So what? Suppose our “plausible-sounding argument” is actually true: “without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations.” In that case, by not investigating torture now, we would be setting ourselves up for future government lawbreaking. Isn’t it obvious that preventing this matters more than anyone’s motives?”

Everything was done properly
But Broder’s most telling assertion — and, in the context of the rest of his opinion piece, the most deeply shameful one — comes next:

The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places — the White House, the intelligence agencies and the Justice Department — by the proper officials.

Let’s assume Broder was right (although he isn’t****).  Would that be sufficient?
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When reports of waterboarding began to surface a couple of years ago, I remember telling a friend that I couldn’t believe the Bush administration had been able to make me feel sorry even for someone like Khalid Sheikh Mohammed (or “KSM” in many reports), but it had, and I kind of held that against them. It turned out I had no idea.

As of last weekend,  Marcy Wheeler (”emptywheel” at firedoglake) does:

According to the May 30, 2005 Bradbury memo, Khalid Sheikh Mohammed was waterboarded 183 times in March 2003 and Abu Zubaydah was waterboarded 83 times in August 2002.

The verbatim sentence from that memo:

The CIA used the waterboard “at least 83 times during August 2002″ in the interrogation of Zubaydah. IG Report at 90, and 183 times during March 2003 in the interrogation of KSM, see id. at 91.

Of course, feeling sorry for an alleged terrorist isn’t the point. There are many points to be made about this, but so far the chief ones to me are:

• Our ability to prosecute Khalid Sheikh Mohammed or Abu Zubaydah on the basis of any information gained through these methods is irretrievably impaired.  At least it ought to be — for the rest of our sakes, not for his.
• I’m not a lawyer, but I should think even subsequent confessions under these circumstances would be tainted by someone’s mental state after repeated waterboarding.
• Waterboarding can’t possibly “work” if it “has to be” repeated  one hundred and eighty three times.  This was an instrument of torture for its own sake, not for information, and this was deeply sick, criminal behavior.
• Waterboarding was used on Abu Zubaydah after he’d given what information he had, according an April 17 report by the New York Times’s Scott Shane (emphases added):
  

  The first use of waterboarding and other rough treatment against a prisoner from Al Qaeda was ordered by senior Central Intelligence Agency officials despite the belief of interrogators that the prisoner had already told them all he knew, according to former intelligence officials and a footnote in a newly released legal memorandum.The escalation to especially brutal interrogation tactics against the prisoner, Abu Zubaydah, including confining him in boxes and slamming him against the wall, was ordered by officials at C.I.A. headquarters based on a highly inflated assessment of his importance, interviews and a review of newly released documents show.

  Abu Zubaydah had provided much valuable information under less severe treatment, and the harsher handling produced no breakthroughs, according to one former intelligence official with direct knowledge of the case. Instead, watching his torment caused great distress to his captors, the official said.
  

• The technique used appears to have contravened even the allegedly ‘legal’ technique using cloth over the air passages to supposedly prevent inhaling water.  As Marcy Wheeler points out in other posts, the technique is noted in the same memo okaying the procedure, without noting prior memos limiting approval to a different method.
• People who engaged in this, saw this and did nothing to oppose it, and/or green lighted it with legal memoranda are all criminally culpable and belong in cells next to KSM.  Do we really want people who executed or approved 266 waterboardings running around loose?
• Finally, I don’t give a good god-d*** whether Obama agrees with me about any of this or not.  If he protects these people, he has officially become Part Of The Problem.

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* It bears repeating at this point that Ron Suskind reported (in his book “One Percent Solution”) that FBI personnel considered Abu Zubaydah to be an “insane, certifiable, split personality” — and at the time he was captured, based on diaries he kept and interviews at the time. Over time, CIA downgraded his significance in the Al Qaeda hierarchy as well.  The prime impetus for this came from the top: “‘I said he was important,’ Bush reportedly told Tenet at one of their daily meetings. ‘You’re not going to let me lose face on this, are you?’ ‘No sir, Mr. President,’ Tenet replied.”

POSTSCRIPT: It may not belong in this post, but it’s my blog so why not: note that once again, it was one of those dirty bloggers who pollute our discourse, parasitize honest newspaper work, and divide our great nation who noticed what legions of trained journalists had not.  Scott Shane of the New York Times attempts to explain: “The sentences in the memo containing that information appear to have been redacted from some copies but are visible in others. Initial news reports about the memos in The New York Times and other publications did not include the numbers.”

As is well known, the Washington Post’s Bob Woodward reported the verdict of Judge Sue Crawford (a lifelong Republican, as it happens) about U.S. treatment of “20th hijacker” Mohammed al Qahtani:

“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.

The significance is that this is possibly the first time the word “torture” has been used by a U.S. government official to describe what was done.  Also significant: Crawford’s judgment was about the overall treatment, rather than separate components that might not themselves rise to the level of torture:

“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture, she said.”

Much of this shouldn’t be allowed even *un*persistently — “sustained isolation, sleep deprivation, nudity and prolonged exposure to cold.” But it’s sadly a step forward for the discussion to move past the insulting “is waterboarding torture?” question.

Should there be a special prosecutor for Bush administration war crimes?*  Of course. And I don’t so much want the (ethically challenged) people who did the dirty work.  As the United States insisted sixty years ago in US v. Altstötter, I want the people prosecuted who ordered them to do it or gave those orders legal cover.  David Cole (Georgetown Law) points out there’s actually little choice from a legal standpoint:

The Convention Against Torture not only prohibits torture under all circumstances, but obligates signatory nations – including the United States – to refer cases of torture for investigation for potential prosecution. Criminal prosecution of the top wrongdoers seems highly unlikely at this point, but the latest admission calls for, at a minimum, appointment of an independent counsel or the convening of a commission to fully investigate the facts and identify those responsible for the crimes that can no longer be denied.

Longtime accountability crusaders Dahlia Lithwick and Philippe Sands concur in a Slate article:

The former chief judge of the United States Court of Appeals for the Armed Forces and general counsel for the Department of the Army has spoken. Her clear words have been picked up around the world. And that takes the prospects of accountability and criminal investigation onto another level. For the Obama administration, the door to the do-nothing option is now closed. That is why today may come to be seen as the turning point.

Meanwhile, our outgoing President had the gall to proclaim this in a farewell speech last night:

America must maintain our moral clarity.

Such as it is.

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* The link leads to a proposal for just that, by Bob Fertik of Democrats.com, in an online idea run-off organized by change.org. Sadly, Fertik’s proposal fell 19 votes short of being among the top 10 ideas to be presented to the Obama administration.

The Legal Times’s Joe Palazzolo reports that Obama’s Department of Justice transition team has run into a little not unexpected difficulty:

A senior Justice Department official said today that “99.8 percent” of the department’s work with President-elect Barack Obama’s transition team has gone smoothly. The 0.2 percent snag: The department has reservations about granting the team’s request to review classified legal opinions related to secret CIA and National Security Agency programs.  [...]

The opinions, some of which have been released to Congress in redacted form, contain the legal rationale of the NSA’s warrantless spying program and the CIA’s detention and interrogation policies, among other intelligence initiatives.

A reasonable guess about some of the documents involved can be gleaned from an October 2007 list of documents OLC chief Steven Bradbury refused to release in in response to an ACLU/EPIC lawsuit , summarized by ‘emptywheel’ in “Warrantless Wiretap Memos Timeline.”*  Palazzolo continues:

In an unprecedented move, the Justice Department began providing provisional security clearances to Obama’s staff prior to the election. A select group was cleared for access to even more sensitive information, but [Attorney General] Mukasey said last week that some documents may not be made available to Obama’s staff until they take their oath of office.  [...]

The Justice official said the dispute over access to the NSA and CIA opinions has made its way up to Williams & Connolly’s Gregory Craig, who earlier this month was named to be Obama’s White House counsel. Craig was expected to meet with current White House counsel Fred Fielding to discuss the issue, the official said. It’s unclear whether such a meeting has already taken place.

Given the past eight years, it’s hard not to be suspicious that the “99.8%” cooperation is the easy stuff, for public relations.  Meanwhile, that “0.2% snag” — stuff Obama’s transition team will have to wait until January 21st for — might also be relabeled “stuff Bush will pardon people for on January 20th.”  Still, it’s interesting and heartening to learn just who is on that transition team:

Obama’s Justice Department transition team is led by Wilmer Cutler Pickering Hale and Dorr’s David Ogden. Also on the team are OLC veterans Dawn Johnsen, a professor at Indiana University School of Law; Martin Lederman, a professor at Georgetown University Law Center; and Christopher Schroeder, a professor at Duke University School of Law.

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In one very important way, impeachment does — and maybe soon.

—

The news was quickly buried under an avalanche of financial crisis, Palin, debate, and election horse race stories, but it was significant all the same.  In late September, Murray Waas reported in Atlantic.com that Department of Justice investigators were zeroing in on former Attorney General Alberto Gonzales’s July 24, 2007 testimony to Congress.  In this testimony, Gonzales asserted that in a critical March 10, 2004 meeting — immediately prior to the notorious “hospital confrontation” between Comey, Ashcroft, Gonzales, and Card — a key group of Congressional members privy to intelligence secrets* shared a “consensus” with Cheney, Addington, and Gonzales that the NSA’s warrantless surveillance program described to them should go forward.

Unfortunately for Gonzales, this assertion was denied** by many of the congressmembers involved. Waas:

Gonzales said that he had told the congressional leaders “in the most forceful way that I could [about] … the disagreement that existed.” Gonzales said that in response to that, there had been a “consensus in the room” from the legislators, “who said, ‘Despite the recommendation of the deputy attorney general, go forward with very important intelligence activities.’ ”

This assertion that there had been “a consensus” is currently under investigation by the Justice Department’s inspector general as possible perjury or as a false statement under oath.

According to Waas, Gonzales also developed after-the-fact “notes” on the March 10 meeting, at the direction of President Bush; beginning with one sentence(!) , jotted down on March 11.  Gonzales asserted he wrote up the remainder of his notes on the March 10, 2004 meeting “the following weekend,” i.e., March 13 and 14.

But on March 11, when he renewed the NSA warrantless surveillance program, Bush could only have had Gonzales’s say-so and the alleged one sentence note as “documentation” of Congressional acquiescence.  According to accounts like those by the Washington Post’s Barton Gellman, Bush finally modified his March 11 order on March 19 — well after being informed by Comey, on March 12, of likely widespread resignations at the Department of Justice should the program continue in its prior form.

The NSA warrantless surveillance program may well have always been an impeachable offense.  Its continued approval through March 19, 2004, despite the March 12th disapproval of Acting Attorney General Comey — was even more certainly one, at least in my view and that of many others.  Should the March 11th reapproval have been based on evidence of congressional “acquiescence” known to be false or even suborned, that would be yet further grounds for Bush’s impeachment.

But I think it’s also crucial that by feigning that evidence — and by restating that lie in his July 24, 2007 testimony before the Senate Judiciary Committee — Alberto Gonzales can be impeached as well. And there’s nothing President Bush could do to stop that — not even a pardon.

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From the Jane Mayer interview by Amy Goodman on Democracy Now!:

JANE MAYER: Many of the detainees have said they lied to stop the torture. Shaykh Ibn al-Libi was perhaps one of the most fateful cases, because he was taken into custody by the CIA, sent to Egypt, where he was basically beaten up. While he was in Egypt, this was before the war in Iraq. He was asked, “Are there weapons of mass destruction in Iraq? And are there connections between al-Qaeda and Saddam Hussein?” He later said he had absolutely no idea. He didn’t even really know what weapons of mass destruction were. But he told his interrogators whatever they wanted to hear. And what he told the interrogators made its way into Colin Powell’s speech to the UN, which was one of the major turning points in selling the war in Iraq. Colin—

AMY GOODMAN: February 5, 2003, five weeks before the invasion.

JANE MAYER: Right. And it was a speech that was very powerful, convinced an awful lot of people who were on the fence about whether we needed to go to war. One of the things Powelll talks about in that speech is the information that came from al-Libi saying that there was WMD and that there were connections between terrorists from al-Qaeda and Saddam Hussein.

Almost one year after Powell’s speech, this same detainee, Shaykh Ibn al-Libi, recanted. He told the CIA he made it up. He said he had to say something, because they were killing him.

You know, one of the things, though, that I think people haven’t picked up on in that story is not only the disinformation that came out of this program, but that there were really doubts about al-Libi at that time that Powell gave that speech, and Powell was not told about the doubts. The DIA, the Defense Intelligence Agency, already suspected that al-Libi was fabricating things, because his confessions lacked all the kind of detail that’s convincing. And the DIA was sounding an alarm, but Powell wasn’t told about this when he gave his speech.

AMY GOODMAN: And what was Cheney’s role?

JANE MAYER: Well, Cheney vetted the speech, so he—his office was just deeply involved in almost all of these issues. You know, David Addington was up in Congress not very long ago, and he testified. And again, people didn’t pick up on this much. But he said as kind of an aside that he was very involved in the CIA’s interrogation program, which is extraordinary. Now, why is the lawyer for the Vice President involved in the CIA’s interrogation program? Well, when the history of this is told—and I did my best to tell it in The Dark Side—you’ll see there’s sort of fingerprints from Cheney and the people in his office all over this program.

While this hasn’t escaped attention before now, there are two reasons the bolded parts remain important and worth emphasizing, I think. First, obviously, a key convincing spokesman went to the United Nations with a story that was built on sand — leading to the deaths and maimings of (at minimum) tens of thousands of Iraqis, and thousands of Americans. Second, perhaps less obviously, there was an effort — a conspiracy, to put it bluntly — to have him do so. I’ve compiled a short and no doubt partial list of other major instances of this kind of deception here — “Practice to Deceive.”

For people to argue that torture or deception leading to war (or, in this case, both) were somehow done in good faith is to “hear no evil, see no evil, and speak no evil.” It’s wilful blindness in the face of overwhelming evidence. In my view, these were part of a conspiracy of war crimes, crimes against U.S. statutes, and impeachable acts. There must be accountability for them; all I can do, I suppose, is point that out — and hold it against politicians, pundits, and others who argue otherwise.

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UPDATE, 7/29: Support Dennis Kucinich’s call for impeachment hearings here; your name will be forwarded to your Representative.

In the years and decades and centuries ahead, John Yoo’s and David Addington’s testimony before the House Judiciary Committee last week will become a simple, memorable marker about just how low this country fell in the early years of the 21st century. A former Department of Justice counsel and a current chief of staff to the Vice President of the United States proved unwilling to say that the president could not legally order torturing children or burying people alive.

Since last week’s events are well known enough, I’ll make just two points, and ask a question.

First, torture and cruel, inhumane, or degrading abuse of children by United States military, intelligence personnel, and/or U.S.-hired contractor thugs is not a hypothetical situation. I’ll list just two cases, but more have been reported, and no doubt yet more remain unreported. Abu Ghraib sergeant Samuel Provance told a German news team about “interrogation specialists” pouring water on a boy, driving him around in the cold night, smearing him with mud — and then displaying the result to his father, who (Provance was told) broke and promised to tell all he knew. In an even grimmer story, Tara McKelvey reported (in her 2006 book “Monstering) about at least one alleged rape of an underage detainees — photographed by a fellow soldier. The investigation was desultory at best. In cases like these, the cruelties and/or the whitewashes can be traced to policies made in America.

Second, the way in which Addington and Yoo answered — that is, failed to answer — Congressional questioning should itself set off emergency sirens for our democracy. These two are, in a very real sense, enemies of our state. They are our enemies. Whether delivered with Addington’s coolly contemptuous attitude or Yoo’s baby-faced pseudo-naivete, we simply can not afford to have legitimate questions to the executive branch by the legislative one “answered” this way. To pretend to fail to understand the distinction between “would” and “could” is the kind of ‘trick’ a 3rd grader wouldn’t get away with. Contempt of this sort by the Bush administration should be … that is, should have been… met by Congress with contempt of its own — direct, immediate, Congressional sergeant at arms, off to jail you go contempt.

Meanwhile, at least the future narrative is clear. We were attacked. We panicked. Our elected leaders in the White House threw away our country’s honor and our alleged principles, and set about subverting our own political system in order to do so and to get away with it. Meanwhile, our elected representatives in Congress did next to nothing to prevent it.

People have often tried to lay the abuses in Abu Ghraib and elsewhere at the feet of so-called “bad apples.” The future will know those “bad apples” didn’t fall far from a corrupt and rotten tree, and can roll the tape above to prove it. The question for us is how far and deep that rot extends — to the White House only? To its alleged “check” and “balance” on Capitol Hill in the “opposition” party — capable of belated video theatrics, but not of real oversight?

Or does it extend deeper yet? A recent study (by WorldPublicOpinion.org) suggests that the United States is more akin to brutalized societies like Egypt, Azerbaijan, or Russia than those like Europe’s when it comes to accepting torture under some or even any circumstances. To agree that the state may completely own an individual, make this one say something … anything, turn that one into a screaming thing — that, to me, seems a kind of original sin. As we approach our Independence Day with the usual fanfare, self-congratulation, parades, and hot dogs, I may wish that this country were not so easily tempted to that sin. But wishing doesn’t make it so. Maybe 9/11 really did change everything. Maybe the terrorists have really won.

In today’s Washington Post article “Sentence in Memo Discounted FISA,” Robert Barnes reports that Senators Whitehouse and Feinstein have finally pried loose an Office of Legal Counsel (OLC) opinion purporting to provide legal cover for ignoring FISA (the Foreign Intelligence Surveillance Act) as the exclusive means by which electronic surveillance may be conducted. Barnes quotes John Yoo:

“[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.’

Or as Barnes puts it, “In short, in this context exclusive does not mean exclusive because Congress did not specifically rule out the alternative approach sought by the administration.”

Now we’ve known that Yoo is a dangerous authoritarian hack for years, so yet more evidence of that may evince nothing but yawns. Still…

• It took 2008-2001 = 7 flipping years for this opinion to come to light — and even now only to Senators.
• As ‘emptywheel‘ (”firedoglake”) writes, the document is part of a set of four by Yoo that Senator Whitehouse quoted from in the Senate late last year, all of which purport to let the President be the principal arbiter of what his Article II powers are under the Constitution. Yoo was writing the recipe for a silent putsch.
• As Barnes reports, the Department of Justice continues to rely* on the 2001 authorization of military force (AUMF) against Al Qaeda as justification for warrantless electronic surveillance — despite a vociferous denial by the Majority Leader at the time, Tom Daschle, that the legislation gave such authority.

I also want to add another point to these, one that’s smaller in some ways, perhaps important after all in others.

After New York Times published Risen and Lichtblau’s initial story on the NSA warrantless electronic surveillance, it developed that the publication was prompted in large part by Risen’s threat to scoop his own story by publishing it in his then-upcoming book “State of War.” In the course of the last few days I’ve been poking around the Internet looking for background and discussion of those decisions — first, not to publish, and later to publish after all. One of the tangential items that hunt turned up was “Risen vs. Risen,” a comparison, by Slate’s Jack Shafer, of Risen’s book with his and Lichtblau’s reporting. Shafer sniffed at the allegedly poorer standards in the book:

…when Risen writes in his chapter about the “small, select group of like-minded conservative lawyers” in the Justice Department who Attorney General John Ashcroft assigned to write legal opinions to support the secret NSA surveillance. “They may have been some of the same lawyers involved in the legal opinions supporting the harsh interrogation techniques,” Risen writes, bringing two thoughts to mind: 1) They may also not be and 2) such unsupported speculation would never pass muster in the Times.

Well, Shafer can rest his little head easier tonight. In fact, it was exactly the same lawyer involved.

I’m no expert on the journalistic protocols involved here. I assume if Risen wrote “they may have been some of the same lawyers involved ” it’s because sources told him “they may have been some of the same lawyers involved.” And that’s good enough for me — even if there weren’t a lawless, stonewalling mafia of an executive branch involved.

What gets me is Shafer’s snotty attitude towards a journalist by someone allegedly concerned with journalistic standards. Shafer both leavened and sharpened the charge in his conclusion:

Enough of my ungrateful carping: James Risen deserves our thanks for both his book and his newspaper work. But my point stands. The fundamental difference between good book chapters and good newspaper articles boils down to this: The highest journalistic standard in New York book publishing is one of liability. “Did we libel anybody?” At newspapers like the Times it is, “Is it true?”

Given this week’s news, Mr. Shafer, your point doesn’t stand either. Actually, this is just the coup de grace — it never did. What Risen said was true either way, and worthwhile writing either way, and it was shabby to imply otherwise.

And let me suggest a second set of questions to distinguish Risen the book author from Times editors’ Hamlet-like indecision over his and Lichtblau’s story: do we fail the country and our journalistic mission by not publishing this story? Or do we sit around and wait for someone braver?

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* Memorandum from Brian Benczkowski, Deputy Attorney General to Senators Whitehouse and Feinstein, published at “firedoglake” via “emptywheel”. As a side note, it took the Post 2 days longer than this (excellent) blogger to report the story — and the Post failed to supply any links like this one to supporting documentation. Advantage: blogosphere.