a citizen’s journal by Thomas Nephew

“Hard, hard decisions”

Posted by Thomas Nephew on 30th August 2012

As ever, the Republican National Convention is a target-rich environment for fact-checking.   This time, it’s Paul Ryan’s speech in particular that has come in for a great deal of well deserved — and unusual* — criticism in the media for Ryan’s outright lies and hypocrisy.

Condoleeza Rice addresses RNC (ABC News); speech as prepared (Washington Post);
speech as delivered (transcript by FOX News)

Condoleeza Rice, by contrast, received accolade after accolade for a speech variously characterized as “professorial,” “statesmanlike, stirring and secure“, even “the sort that gets collected in books, and studied by speechwriters.

And so Rice appears to have avoided any serious scrutiny for her speech, which — though largely free of Ryan-esque whoppers — contained plenty of half-truths, contradictions, and sleights of hand of its own.

Some of these are perhaps relatively minor (to Americans, if not to the people involved).**   But one assertion in particular stood out for me.  Rice began, “America has met and overcome difficult circumstances before.  Whenever you find yourself doubting us – just think of all the times that we have made the impossible seem inevitable in retrospect.” Then, after invoking the Revolution, the Civil War, and the demise of the Soviet Union, Rice got to her own blow for freedom and the American Way:

“…the willingness to take hard, hard decisions in the aftermath of 9/11 that secured us and prevented the follow-on attacks that seemed preordained at the time.”

It’s clear enough what she’s talking about.  And so we endure, once again, a Secretary of State defending torture despite U.S. agreement with the Geneva Conventions. It’s entirely possible for even undergraduate students — in fact, even 4th graders — to take Condoleeza Rice down on this issue when given a chance.  But the American news media generally don’t have the will or the attention span necessary to do so.  (I’m reminded of the old Groucho Marx routine with a nincompoop general exclaiming, “Why, a four year old child could understand this! …Run out and find me a four year old child.”)

So maybe TIME’s Michael Scherer was right, maybe Condi Rice’s speech will get featured in a history book some day — as the speech marking the final, all but unnoticed triumph of the Bush/Cheney administration torturers over their adversaries.

(image via

* Even FOX News got in on the bashing: Sally Kohn characterized Ryan’s speech as “deceiving”: “On the other hand, to anyone paying the slightest bit of attention to facts, Ryan’s speech was an apparent attempt to set the world record for the greatest number of blatant lies and misrepresentations slipped into a single political speech. On this measure, while it was Romney who ran the Olympics, Ryan earned the gold.”
** For example, while the average news reader may agree that Russia and China are preventing an international response to the civil war in Syria, it’s also true that U.S and Turkish intransigence about Assad stepping down before talks begin has been a position designed to get “no” for an answer. Some of Rice’s comments were the kind of familiar, somewhat eye-rolling pablum about America’s central, allegedly indispensable, always benign and freedom-loving role that we’re likely to hear again from, say, Hillary Clinton at the Democratic convention in Charlotte; others were more on the order of “but, but you just said,” e.g., talking about her life under Jim Crow after talk of a “second founding” overcoming the scourge of segregation.

UPDATE, 8/30: Peter Beinart (Daily Beast) and Fred Kaplan (Slate) also critique Rice’s speech, though not for the “hard decisions” language. Beinart points out the lack of any discussion of Iraq. Kaplan says Rice is off base about ‘failure to lead’ because of things like Obama’s favorable ratings overseas and the Libya intervention, which Kaplan believes was done rightly.

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Rogue nation ’tis of thee, land of impunity

Posted by Thomas Nephew on 12th November 2010

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.

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Save Paris Hilton’s tax cut! Not.

Posted by Thomas Nephew on 15th September 2010

Click the image to send a petition
to your Congressmembers

Good point from CREDO:

There is very little that so clearly demonstrates the callous venality of some members of Congress than the simultaneous demand to give Paris Hilton a tax cut while pushing benefit cuts to Social Security.

They continue:

…President Obama has called for the Bush tax cuts that affect the richest 2% of Americans to expire. We need to have his back.

Tax cuts for economic elites aren’t free and they aren’t effective. The government still needs revenue and giving away money to millionaires (who on average would receive over $100,000 in tax cuts per year if all the Bush tax cuts are extended) takes away from the money we can spend to help the victims of this economic downturn.

It’s almost incredible all this needs to be said, but all too many Democrats, as usual, are running scared trying to avoid a fight they should win, and a fight they should be proud to win.

They should take on this fight because ending the Bush era tax cuts is one of the main ways to support a stable economy, infrastructure, and political system (and fix the deficit): the wealthiest among us pay progressively higher tax rates for a system within which they have flourished more than others. They’ll still be the wealthiest, and the system will function better for everyone. Including the wealthiest, unless they enjoy risking a declining nation and all that entails. (The other main way is reducing our military budget, ending our wars, and reducing our commitments/claims overseas.)

But if that doesn’t mean anything, wavering Dems might still consider it for simple reasons of self-preservation: less money for the superrich to play with may mean fewer, um, peculiar political candidates like Christine O’Donnell or Sharon Angle. (Notice how Rand Paul or Sarah Palin almost seem mainstream by comparison).

Now I can see why the Koch brothers, the O’Donnells, or the Angles of the world would like things to stay the way they’ve become. The Great Divergence — and its related developments: (a) the new “Citizens United”  rulebook allowing unlimited corporate spending on campaigns, (b) the great media noise machines like FOX, Rush, or Beck — is both cause and consequence of the super-rich getting super-richer, and their minions and allies getting attention and electoral successes they’d never achieve otherwise.

I just don’t see why the rest of us should welcome that. The super-rich are buying our country out from under us with campaign contributions, advertising, and astroturf movements (or heavily fertilized ones at any rate). They’re turning it into a country with a government ever more openly by, for, and of the wealthy few.

NOTE: built from comments and links on Facebook.

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Rice: “If it was authorized by the President, it did not violate our obligations”

Posted by Thomas Nephew on 1st May 2009

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.”

Read the rest of this entry »

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On Broder’s “Stop Scapegoating”

Posted by Thomas Nephew on 27th April 2009

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?
Read the rest of this entry »

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83 + 183 = prosecute them

Posted by Thomas Nephew on 20th April 2009

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:

Prosecute Them
My lawn sign (changed from ‘Impeach them’ on 2/12/09)

  • 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.
You can add your name to various anti-torture and pro-prosecution petitions at the following sites:

* 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.”

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See you in Holland

Posted by Thomas Nephew on 23rd January 2009

For Nell: a collection of YouTube videos of George W. Bush departing the inauguration ceremony by helicopter — I’d say my favorite is the shoe throw one — plus a bonus one of some network twits tut-tutting when he got booed.

Yes, I booed him. Sayonara, jerk — I hope next time I’ll be seeing you in videos they’ll be from Holland — or Leavenworth. I have a dream — that one day you’ll be judged not for the color of your skin, not even for the skimpy content of your character, but for the crimes that you’ve committed.

UPDATE, 1/28: Nice photoshop job. 🙂 ( Via Cara)

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Clearly coercive moral clarity

Posted by Thomas Nephew on 16th January 2009

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.

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

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Fwd: Special Prosecutor for Bush War Crimes

Posted by Thomas Nephew on 12th January 2009

Formal Petition to Attorney
General-Designate Eric Holder
to appoint a Special Prosecutor
to investigate and prosecute any
and all government officials
who have participated in War Crimes.
Sponsored by

Dear friends and family,

I have just read and signed the petition: “Special Prosecutor for Bush War Crimes.” Please take a moment to read about this important issue, and consider joining me in signing the petition. It takes just 30 seconds, but can truly make a difference. To join in the petition, click here.

This was already a top vote getter at Barack Obama’s “” site — but as Obama’s response shows, it unfortunately seems that he and his administration may need to be pressured on this. From Obama’s recent interview with George Stephanopoulos (emphases added):

OBAMA: …I don’t believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. […]OBAMA: “Well we have not made any final decisions but my instinct is for us to focus on how do we make sure that moving forward, we are doing the right thing. That doesn’t mean that if somebody has blatantly broken the law, that they are above the law. But my orientation’s going to be to move forward,” Obama said.

STEPHANOPOULOS: “So let me just press that one more time. You’re not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence where it leads?”

OBAMA: What I — I think my general view when it comes to my attorney general is that he’s the people’s lawyer. Eric Holder’s been nominated. His job is to uphold the Constitution and look after the interests of the American people. Not be swayed by my day-to-day politics. So ultimately, he’s going to be making some calls. But my general belief is that when it comes to national security, what we have to focus on is getting things right in the future as opposed to looking at what we got wrong in the past.”

See also “Additional Documents Link Bush Directly to Guantanamo Torture,” (Jason Leopold, “Public Record”):

Several high-ranking members of Obama’s transition team told me this week that the president-elect will not authorize the Justice Department to initiate a criminal investigation into the Bush administration’s interrogation practices nor will the agency scrutinize any individual officials for approving such policies. Instead, these aides, who spoke on condition of anonymity, said Obama will review and possibly reverse some of Bush’s executive orders and withdraw some legal opinions that gave the president broad powers in the global war on terror.

“Possibly”?! Meanwhile, Bush has admitted personally OK’ing waterboarding:

And I’m in the Oval Office and I am told that we have captured Khalid Sheikh Mohammed and the professionals believe he has information necessary to secure the country. So I ask what tools are available for us to find information from him and they gave me a list of tools, and I said are these tools deemed to be legal? And so we got legal opinions before any decision was made.

He also knew of “principals” meetings where waterboarding was discussed.  Torture is a blatant war crime and crime under U.S. law.

I realize not everyone I send this to will agree with me on this, but I wanted to not take anyone’s views for granted, and also to let you know how I see it. Personally, I’ve favored impeachment for the war crime of torture, the fraudulent case for going to war in Iraq, and the warrantless surveillance that the Bush administration is guilty of — and prosecution (whether or not it leads to a conviction) would not preclude that. What I don’t favor is simply “moving on,” “turning the page,” “looking forward instead of backward,” or other formulations that seem more about avoiding hard truths and unpleasantness than about truly preventing such abuses in the future.

To me, this isn’t mainly about the people who actually carried out orders to torture (though they shouldn’t have). It is about the people who gave those orders, or justified them with legal mumbo-jumbo: Bush, Cheney, Rumsfeld, Tenet, Yoo, Haynes and Addington, to name some of the most important ones. To really look “forward”, you have to look even further than the Obama administration, to a time when people like these are in a position to consider crimes like these again. When that time comes, it will be far better if such people (possibly even the same people) can look back on a special prosecutor bringing administration officials to justice.

Impeach them: yes we can

Yes We Can. Originally uploaded by Thomas Nephew.

Thank you!

— Thomas Nephew

PS: Impeachment also remains a possibility even after someone leaves federal office; one of the consequences of an impeachment conviction is not being allowed to hold federal office again. Impeachment is also specifically not something a presidential pardon can prevent. For those of you wondering why I still have an “Impeach Them” sign up in my front lawn, that’s why.

NOTE: I sent the above message (slightly modified) to a great number of friends and family today, with more on the way.

UPDATE, 1/12: On the “Huffington Post,” actor John Cusack proposes two questions to ask Attorney General nominee Eric Holder:

1. Is waterboarding torture?

2. Will you prosecute? No matter what sham commission is appointed to block justice?I would hope we pressure our representatives, whomever questions Mr. Holder, to play the video of the Vice President of the United States admitting to sanctioning a torture program. He not only admits the war crimes but seems proud and pleased with himself.

Someone, anyone, for the sake of our constitution, ask Mr. Holder, the presumptive top legal authority, the man who will lead the Justice Department after the most lawless time in American history, to answer these simple, basic, direct questions.

Whomever is found guilty should not be on the lecture circuit, but in prison.


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The 0.2 percent snag and the OLC

Posted by Thomas Nephew on 10th December 2008

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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