Tuesday, April 28, 2009

Why a Criminal Investigation does not mean the OLC Lawyers are Scapegoats on Torture

Brian Tamanaha

President Obama said Tuesday that Justice Department officials who authorized harsh interrogation techniques are not immune from prosecution. "With respect to those who formulated those legal decisions," the president said, "that is going to be more of a decision for the attorney general within the parameters of various laws, and I don't want to prejudge that." (NPR, April 22)
Many voices are now protesting that a criminal investigation of the OLC lawyers who wrote the "torture memos" would be unfair or improper. The President has already ruled out prosecution of the CIA interrogators who committed the torture (assuming they kept to the guidelines). There has been no hint that the Justice Department plans to investigate the high level officials who ordered the torture (Cheney, Rumsfeld, and company). At least for now, only the OLC lawyers are in the cross-hairs, while those who ordered the torture and those who carried it out breath easy.

It smells like the OLC lawyers are being served up as scapegoats for the bad deeds of others. They were just doing their job. They should not be punished for offering their good faith legal analysis. The fact that they were wrong about the law does not make them guilty of a crime. So say their defenders.

If an investigation into the actions of the OLC lawyers is about finding a scapegoat, it would be indeed be wrong. Let me explain, however, why the OLC lawyers must be investigated. Preview: It’s not about the torture. It’s about the special position of the OLC.

The role played by the Office of Legal Counsel within the Department of Justice is this: “By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies” (OLC website). The key words are “authoritative legal advice.” This quasi-judicial power—the power to issue legal opinions that bind the Executive Branch—is unique to the OLC.

Owing to this extraordinary power, the lawyers have a narrowly circumscribed charge and bear special responsibilities. Steven Bradbury spelled this out in a 16 May 2005 memo, Best Practices for OLC Opinions (which he issued just 6 days after he signed two pivotal “torture” memos). The pertinent passages read:

By delegation, the Office of Legal Counsel exercises the Attorney General’s authority under the Judiciary Act of 1789 to advise the President and executive agencies on questions of law….

Our Office is frequently called upon to address issues of central importance to the functioning of the federal Government, and, subject to the President’s authority under the Constitution, OLC opinions are controlling on questions of law within the Executive Branch. Accordingly, it is imperative that our opinions be clear, accurate, thoroughly researched, and soundly reasoned….

Over the years, OLC has earned a reputation for giving candid, independent, and principled advice—even when that advice may be inconsistent with the desires of policymakers. This memorandum reaffirms the longstanding principles that have guided and will continue to guide OLC attorneys in preparing the formal opinions of the Office.

OLC’s interest is simply to provide the correct answer on the law....

That’s an excellent description of the OLC’s role, power, and responsibilities. These standards applied to the torture memos issued by Bybee, Yoo, and Bradbury. The OLC's very reason for existing is to issue independent, correct, legal decisions. The events surrounding the torture memos provide a perfect illustration of why it is essential that OLC lawyers strive in good faith to meet these standards.

The Senate Report on Detainee Treatment discloses that the top lawyers for the Army, Navy, Air Force, and the Marine Corps, as well as Legal Counsel for the Joint Chiefs of Staff, strongly opposed the use of these abusive interrogation techniques, citing “serious concerns regarding the legality of many of the proposed techniques.” (Senate Report xviii). The military lawyers also worried that use of these techniques would increase the risk that captured U.S. soldiers would be tortured in retaliation. (An example of this opposition is a memo, linked here, issued by the group that oversees SERE training, which bluntly labeled these techniques “torture.”)

But Bush Administration higher-ups wanted the techniques to be applied. The OLC was called upon to issue legal opinions as a means to circumvent and squelch the opposition from military lawyers (never mind that military lawyers were more familiar than OLC lawyers with the techniques and the applicable law). When the OLC officially concluded that the techniques were “legal,” the opposition was silenced. Military lawyers were instructed to consider the “OLC memorandum as authoritative” (Senate Report 119-20), clearing the way for the techniques to become official policy.

The OLC has the power to trump opposing views on the law because, as described above, the OLC is the highest authority on the law within the Executive Branch. This is why OLC lawyers must live up to their duty to issue independent, thoroughly researched, soundly reasoned, correct legal opinions. The awesome power to issue binding legal opinions is easy to abuse.

With this background, it is easy to identify the flaw in David Broder’s recent assertion that it would be wrong to investigate the OLC lawyers. Broder writes, “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.”

Broder is wrong because the OLC lawyers were not asked for their opinion on policy. That lies beyond their charge. They were asked to render a legal opinion on the legality of the proposed use of the abusive interrogation techniques. If the policy was illegal, it was the job of the OLC lawyers to say “NO,” as Bradbury asserts in his OLC Best Practices Memo, “even when that advice may be inconsistent with the desires of policymakers.”

Again, the duty of the OLC to render its best independent judgment of the law is directly linked to its binding authority within the Executive Branch. It was by pointing to the OLC's legal authority that President Bush could declare: “We don’t torture.” The OLC had issued legal opinions concluding that the interrogation techniques were “not torture”. It is for this reason that Bush Administration officials can now say in their defense for authorizing the torture: “We checked with the OLC lawyers, who assured us that this policy complied with the law.” That is why CIA interrogators can now say in their defense for inflicting the torture: “We checked with the OLC lawyers, who assured us that these interrogation techniques were legal.”

Everyone involved in the torture is pointing to the OLC lawyers, and for good reason: It was precisely the job of OLC lawyers to give policy makers, and those who carry out policy directives, independent advice on what a correct reading of the law allows or prohibits.

As this discussion emphasizes, the OLC occupies a pivotal position as the final check in advance on the legality of proposed government conduct. The essence of the rule of law is that government officials are bound by and act consistent with the law. Ensuring compliance with the rule of law is the very point and purpose of the OLC.

If the OLC lawyers do not carry out this role with integrity, the institutional arrangement designed to preserve the rule of law is fatally compromised. There is nothing to stop illegal government activity at the highest levels. More to the point, a compromised OLC can play an affirmative role in aiding and abetting illegal activity because its legal opinions supply in advance a strong defense to putative law-breakers. This increases the likelihood that illegal activity will take place (as in this instance, when CIA agents were reluctant to utilize the interrogation techniques without the "golden shield" provided by the legal opinions).

In opposition to a criminal investigation of the OLC lawyers, Peggy Noonan writes, “As for the memo writers, some of whose constitutional theories were apparently tilted to the extreme in favor of the executive, it is hard to see how it would help future administrations, or this one, to have such advice, however incorrectly formulated, criminalized.”

Noonan is absolutely correct that we must not criminalize erroneous legal advice. The key question here, however, is whether this was “just” bad legal advice, or whether it involved active participation by OLC lawyers in the violation of U.S. laws against torture. If the latter occurred, then a criminal investigation would help future administrations by serving as a reminder that the government must act within the limits of the law, and by reaffirming that it is the special job of OLC lawyers to make sure this happens. It is about deterring lawyers from facilitating lawbreaking at the highest levels of government.

That is why there should be a criminal investigation of the OLC lawyers. Lawyers have been held criminally responsible before (for example, German lawyers after WW II, and tax lawyers who construct illegal tax shelters or write bogus opinion letters). It might be true that they did not knowingly facilitate a conspiracy to violate the federal anti-torture statute, and it might prove impossible to establish criminal intent on their part (email exchanges to and from OLC lawyers surrounding the production of the memos will shed light on this). They won't be prosecuted if either turns out to be the case. But we won't know the answers to these questions until after a criminal investigation has been completed.

A criminal investigation into the actions of the OLC lawyers is required not because our country has engaged in torture (as bad as that was). Ultimately, it’s about preserving the integrity of our system of law.


Those opposed to such an investigation are in effect advocating:


The OLC lawyers should not be made the scapegoats to protect those higher in the Bush/Cheney chain. If there is no investigation, public opinion may be used by those higher in the chain to point fingers at the OLC lawyers and protect themselves. For their own reputations, the OLC lawyers should want such an investigation.

Just because you disagree with the advice doesn't mean it wasn't candid, independent, and principled advice.

The problem is several-fold, and "not scapegoating" the OLC attorneys is no reason to avoid going forward - there is plenty of blame to go around.
1. The OLC attorneys did not give their best effort, nor did they give accurate legal advice. In so doing, at a minimum, one could easily seek, gain and convict each of them of depriving the United States of their honest services, i.e., so-called "honest services fraud". This is beyond any ethical complications they might suffer with their respective licensing authorities.
2. In acting the way they did, it needs be remembered that all the information (I want to say "Evidence") we have seen so far indicates that the OLC attorneys were not dispassionate, disinterested opiners as to what was or was not legal. Rather, they appear to have been wholly integrated into effecting a policy result which the higher-ups in the Administration desired. It was evident from the beginning that Bush and Cheney wanted to torture whomever they and their subordinates managed to catch, and did not want to be bound by pesky things like laws and treaties, much less the Constitution. And, in effecting this policy, they needed to be able to compel lower-level subordinates to do the torture. Thus, an "Authoritative legal advice" that torture was "lawful", even when the subordinate never saw the opinion but was merely told it existed, served to vitiate any reluctance a subordinate could exercise. That is to say, you have no basis to refuse to obey an order to torture on the grounds that it is unlawful, when you are presented with some level of proof (e.g., "We have a memo which approves this method") that it is deemed lawful.
3. Any further attempts to pass this off as "just doing their job" should be met with the scorn such twaddle deserves. These were supposedly some of the most "intelligent" people in government, yet they lacked the intelligence or, more likely, moral fiber, to be able to recognize they either were willingly participating in a crime, or were so stupid or carried away with emotion they were being duped into it. Their proper place is serving fries at the drive-up, or behind bars.

"Just doing their job". Just like (allegedly) Mr. Demjanjuk was.

Professor Tamanaha:

In this highly-charged political environment, do you honestly think OLC lawyers would not be made "scapegoats" or that, next time, someone you do know (like Marty Leaderman or Dawn Johnsen) will not get the same mistreatment over policy disputes? I think that's why those like McCain and Lieberman are ready to put this all behind us.


You raise a legitimate concern. In a previous post I suggested that, to insure that the criminal investigation is not political (and does not have the appearance of being political), it should be conducted by a specially created independent counsel.

The person appointed should be a career prosecutor with a Republican background or no political background--but definitely not a Democrat. The Justice Department should not interfere with the investigation in any way.

In answer to your other suggestion, if grounds arise to believe that Marty Lederman or Dawn Johnson have used their office to facilitate the violation of U.S. statutes, I would argue that they too should be subject to a criminal investigation.

Your concerns are political and, judging from your comments on this blog, you often see things in political terms. My concern in raising these issues is about the law.

Unlike many in this overly cynical age, I do not believe that law and politics are completely intertwined. And I think it is essential to constantly mark the line that separates the two.


Thanks for your civil reply, as always.

The allegation referenced by the subject title often is disingenuous: cries of "scapegoating" as CYA.

It is tiresome, if unsurprising, how many red herrings are tossed out there. "Disagreement" of legal advice when excessively shoddy reasoning reeking of advocacy (if not simple conspiracy) more than analysis is alleged.

Concern that "scapegoats" might arise, which is always possible in any situation, thus providing the road to never investigating and prosecuting. We will "move on" and be "shocked" when something wrong happens yet again. This is as true with civil or criminal wrongdoing.

The idea there is some sort of "end justifies the means" regime in place.

BTW, the professor here examines the matter very well. But, why can't your garden variety press report also inform? Why can't they note, e.g., that waterboarding was prosecuted and legally deemed torture for years, even in 1920s Mississipi?

Instead, the public editor of the NYT suggests these "legal judgments" were never made, that they are still open to dispute. The press advances ignorance.

Just because you disagree with the advice doesn't mean it wasn't candid, independent, and principled advice.Even if it was 'candid, independent, and principled', if it was advice given as an overt act pursuant to an agreement to carry out interrogations by methods that are, as a matter of law, torture, doesn't that still give rise to liability for conspiracy to torture?

Good faith error of law, which is what the OLC lawyers would have to argue, isn't generally a defense to criminal liability, and I don't believe either the statutes prohibiting torture or the general federal conspiracy statute includes knowledge of the illegality of the conduct as an element.

Do you happen to know what the latest is from the OLC on waterboarding and the other techniques? I know the OLC repudiated the argument that Congress couldn't restrict the President's ability to interrogate, but did it repudiate the bottom-line advice on what was torture and what wasn't? As I recall, Jack Goldsmith said he didn't want to opine one way or the other, in a book or interview or suchlike, but I don't know whether the OLC changed its bottom line.

If the OLC didn't reverse its definition of torture, would later OLC heads such as Goldsmith be as liable as John Yoo? How about abstention on the issue, knowing that abstention meant a technique would be used?


As a prosecutor, would you actually commence a major criminal investigation without any evidence whatsoever of a crime?

If so, did you support Mr. Bush's post reelection firing of US Attorneys for declining to launch criminal investigations of ACORN based upon multiple press accounts of voter fraud?

I do not know of an ethical prosecutor who would start a major criminal public corruption investigation based only upon the surmise that you offer.

As an aside, I would much rather have a career prosecutor in the Obama Justice Department carry out such an investigation than a GOP special prosecutor. There are few worse inventions in law than a prosecutor who is answerable to no one, with unlimited resources and time, and who will only be considered a success if he or she manages to convict or at least destroy the reputations of multiple targets. Never again.


No. There should not be an investigation in the absence of any indication that a crime has been committed. We disagree on whether this is one of those situations. The circumstances of the writing of the memos, as well as the content of the memos, raise questions about motivation and intention on the part of OLC lawyers to assist in the circumvention of the statute against torture. I grant you, however, that it is a difficult question.

We will know more when, or if, the apparently completed internal DOJ report into the actions of these lawyers is released.

I understand your concerns about uncontrolled independent prosecutors. In this instance, however, that must be weight against the concern about the politicization about the inquiry. There is no clean option here.


Those opposed to such an investigation are in effect advocating: "FREEDOM FROM ACCOUNTABILITY!"Of course. A hallmark of Shrub's administration: only little people are accountable. Lindy goes to jail. Scooter scoots. Dick retires comfortably. Shrub's consigliori expected the same.

Imagine if at the time Yoo wrote those memos he'd had the expectation that if there were any significant error of law or fact, it'd be jail time for him. You suppose they'd have come out the same way? Or anywhere close? I doubt it.

Exactly, jpk. Similarly, do you think that Marty Lederman or Dawn Johnsen would have consented to release said OLC memos if they knew that they would be facing jail time for it in 4 to 8 years?

Charles: Not so much that, but do you think that lawyers would write those same memos if they knew they would be prosecuted for them? Information so far indicates that pretty much everybody except the CIA and the Administration had second (or more) thoughts, so I doubt these turns of events come as a surprise to them.

Another option would be to have a Justice Dept. prosecutor prosecute a case, but for the President to announce in advance that he will pardon the defendant after any conviction and appeal. Why do that? --Because it would bring the "What is torture?" issue to the courts and resolve the discussion over whether the OLC memos made contrived arguments that would be laughed out of court.


Of course Yoo would not have written that memo if there was any inkling that policy disputes would be criminalized in need of a Presidential pardon (and, maybe, there would be a couple fewer skyscrapers and American citizens here in downtown Los Angeles too).

I am actually holding out hope that CHENEY signed a few Presidential pardons himself if this actually does end up in a court of law.

The OLC was asked for a legal opinion in order to satisfy CIA concerns that it needed explicit authority to cover its agents.

That opinion was sought because people were (presciently) concerned that a lynch mob mentality had been loosed by the Administration, and that the day would come, the fever would pass, and those who acted with the mob would be called to account.

That day has arrived. The reason for the original request has materialized.

The authors of the memos are being asked to provide just what the agents at the CIA wanted: legal protection against criminal prosecutions.

It would be entirely appropriate for those authors to justify their legal work now, even within the framework of a criminal prosecution. Why else did they think they were being asked to do the work?

Porcupine Pal:

No prior OLC lawyer has been held criminally responsible for their (il)legal opinions. Better be very careful before you open this Pandora's Box.


As a prosecutor, would you actually commence a major criminal investigation without any evidence whatsoever of a crime?
"I seeeee nottthink!"

If so, did you support Mr. Bush's post reelection firing of US Attorneys for declining to launch criminal investigations of ACORN based upon multiple press accounts of voter fraud?
Typo there: "multiple Republicans mewling about alleged 'voter fraud'". No charge. Now back on topic, please?


(from Wikipedia)

The scapegoat was a goat that was driven off into the wilderness as part of the ceremonies of Yom Kippur, the Day of Atonement, in Judaism during the times of the Temple in Jerusalem. The rite is described in Leviticus 16.

Since this goat, carrying the sins of the people placed on it, is sent away to perish, the word "scapegoat" has come to mean a person, often innocent, who is blamed and punished for the sins, crimes, or sufferings of others, generally as a way of distracting attention from the real causes.

. . .

Richard B. Cheney was legally ACTING PRESIDENT, having the full powers and prerogatives of the Office of President to issue pardons, on July 21, 2007 from 7:16 a.m. to 9:21 a.m.

Does anyone have any research / links to theory that Obama could legally rescind "torture" pardons?

Charles: It is not a policy dispute because OLC does not concern itself with policy.

Prof. Tamanaha,

I, too, have been extremely critical of the OLC lawyers. (In fact, I think Judge Bybee would be well advised to resign based on the self-evident flaws in the opinions, which cannot be excused under the principles of Hanlon's Razor alone.)

But since there is an OPR investigatory report expected to be disclosed Real Soon Now, does it not make sense to hold off to see what facts the OPR reveals? If the OPR reports smoke, it will be more compelling to task a prosecutor and grand jury to look for fire.

The author asserts the office of legal counsel has email backups for corroboration. Given the countervailing evidence in a separate inquiry of partisan diversion of server backup bistreams as early as 2001 in dispute over 1 million White House emails erased and lost, it would be nice to learn of olc's having averted that problem with erasures.

Freedom from accountability is not a big agenda of the current ruler, but in the mean time, they are going to be pushed for changes.

Charles said:

Of course Yoo would not have written that memo if there was any inkling that policy disputes would be criminalized...

The plausible threat of being punished for committing a crime keeps many would be criminals on the straight and narrow. That’s one of the major reasons we punish crimes; to deter future criminal acts.

Let us make one thing clear: this is not criminalizing policy disputes. This about criminal acts which the perpetrators and their sycophants are trying to disguise as “political differences”.

Asserting that a barbaric act that has been recognized as torture for over 500 is not torture is not a policy difference, it is enabling war crimes.

That would be for over 500 years.

The "scapegoat" charge is not logical because just about any theory of malpractice on the part of the OLC lawyers involves collusion with policymakers. If such misconduct occurred, it would be hard to charge the lawyers criminally without also charging the alleged coconspirators at the highest levels of government.

Those top officials, it is argued, are Too Big to Prosecute. That meme thus acts to protect not just them but, by extension, the lawyers.

Depending on the facts, if Yoo or Bybee demonstrably deferred improperly to White House influence, they may have crossed an ethical line but not a criminal one. Of course, if there is a smoking gun, there could be violations serious enough to violate both. So the threshhold step is to see what OPR finds.

This is from NPR, yesterday:

"It's a very disturbing memo," Kmiec says. "I don't think there's any member of the American public — let alone the legal profession — who would not be disturbed by what's described there."

But Kmiec says he has special reason to be disturbed — he himself was once head of the Office of Legal Counsel, during the administrations of Ronald Reagan and George H.W. Bush, and he thinks the memos' detailed description of how each mode of harsh interrogation may be legally used suggests that the CIA was already engaged in the practices the memo approved.

"The look of the opinion — that it was written to justify after the fact — is a breach of the practice of that office," he says.


"'The look of the opinion — that it was written to justify after the fact — is a breach of the practice of that office,' he says."

Reliance upon retroactive advice of counsel (OLC memos/opinions) is a defense for those who actually did the deeds described?

I am chagrined I did not see this discrepancy right off when I reviewed the OLC memos and the Red Cross report, but it appears that CIA did not waterboard KSM 183 times as has been widely reported in the media and offered here as evidence of "torture." Rather, water was poured upon the cloth over KSM's mouth and nose 183 times for a couple seconds apiece during five waterboarding sessions over a month period.

This comment has been removed by the author.

I am chagrined I did not see this discrepancy right off when I reviewed the OLC memos and the Red Cross report, but it appears that CIA did not waterboard KSM 183 times as has been widely reported in the media and offered here as evidence of "torture." Rather, water was poured upon the cloth over KSM's mouth and nose 183 times for a couple seconds apiece during five waterboarding sessions over a month period.....
On a similar note, Harris and Klebold fired 176 times during one school-shooting session over a one day period.

Baghdad, did you really think they dragged KSM out of his cell 183 times in a month to waterboard him?

Little Lisa's bro is "chagrined."

Chagrin: a feeling of embarrassment and annoyance because one has failed or been disappointed; mortification.

Little Lisa's bro had thought the report stated that KSM had been waterboarded 183 times. So what he had done was take the position that this would not constitute torture. Now, he realizes he misread the report; that what had happened was merely wet faceclothing, which obviously is significantly less than true waterboarding. Perhaps little Lisa's bro considers this the equivalent of a "wet willie." This makes it difficult for little Lisa's bro to backtrack on waterboarding as he has spent so much time and effort defending waterboarding as not being an inappropriate in-terror-gation technique. He must be mortified. But then again he can fall back upon the old TV show "Welcome Back, Kotter" with his variation on Vinnie Barbarino's "Up your nose with a rubber hose [wet facecloth]." Gee, it's like being back in high school, gang, with our own Vinnie Barbarino and his "Backpack of Lies."

I am chagrined I did not see this discrepancy right off when I reviewed the OLC memos and the Red Cross report, but it appears that CIA did not waterboard KSM 183 times as has been widely reported in the media and offered here as evidence of "torture." Rather, water was poured upon the cloth over KSM's mouth and nose 183 times for a couple seconds apiece during five waterboarding sessions over a month period.It's a good thing then that the Torture Statute (18 USC § 2340 et seq.) prohibits, by its text, "only over five waterboarding sessions in any one month".


Not only that, but Bart's latest NRO factoid du jour falls flat when considering that SERE guidelines state that water may only be applied twice for twenty seconds total.

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So, the asbestos thing was strange.

Just for fun, let's try some basic truths:

1) The number of times a criminal act is carried out over a given period of time does not alter the criminality of the act.
2) 'Advice' constructed to circumvent well-established doctrine in order to provide legal cover for on-going or planned conduct is, by definition, not principled.
3) 'Advice' constructed so as to please one's superiors is, by definition, not independent.

We could, of course, investigate the meaning of 'candid' and the possibility of aggravating factors in the case of especially brutal criminality. However, these niceties cannot distract any non-partisan - dare I say, principled - thinker.


I agree entirely with Professor Tamanaha's proposition that the authors of the OLC memoranda ought not to be made scapegoats.

But neither should anyone else be scapegoated and I believe that some have been.

When the Abu Ghraib scandal first broke, I was not one of those who bought into the "just a few bad apples" line then being peddled by the Bush Administration and its apologists (some of them on this blog).

One of the reasons I did not buy into the line was because the types of abuse reported.

In my experience of investigations into prisoner abuse at prisons and other detention facilities, whether run by civilian wardens or the military, prisoners do get roughed up in the cells, or in punishment blocks, or have 'accidents' falling down stairs, or whatever.

The types of abuse reported at Abu Ghraib were not of that typical nature. They were all too characteristic of the type of psychological abuse aimed at softening up prisoners for interrogation. Indeed, many of them had been used by the British in colonial insurrections - including in Northern Ireland.

Unsurprisingly, since the USA and the UK have been close intelligence partners since WW2 they share a great deal of "learning" on these techniques.

In relation to a number of the techniques, the United Kingdom has already been held to have contravened its human rights obligations by the European Court of Human Rights. See Ireland v. United Kingdom - 5310/71 [1978] ECHR 1 (18 January 1978) where at paragraph 96 of the judgment the techniques complained of were thus specified:-

"Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of "interrogation in depth" which involved the combined application of five particular techniques.
These methods, sometimes termed "disorientation" or "sensory deprivation" techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission's establishment of the facts that the techniques consisted of:

(a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress position", described by those who underwent it as being "spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on
the fingers";

(b) hooding: putting a black or navy coloured bag over the detainees' heads and, at least initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

This finding at paragraph 97 is also significant:-

"From the start, it has been conceded by the respondent Government that the use of the five techniques was authorised at "high level". Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971."

In the event, the UK Government gave an undertaking to the Court that these techniques would not be used again as an aid to interrogation and paid damages to each of the individuals so interrogated. The Court held that the practices did constitute inhuman and degrading treatment in breach of the Convention.Readers may find that catalogue of techniques eerily familiar: they have all been used by the USA on the prisoners in the present scandal. What is also notable is that the techniques which have been added also bear the hallmark of rogue psychologists at work. The sexual humiliation techniques exploit the strong immodesty taboo in Muslim culture, the use of dogs exploits both a religious concept that dogs are "unclean" and the fact that in many Middle Eastern countries any dog is likely to be dangerous.

The leaked ICRC Report claimed that medical workers, thought to be either doctors or psychologists, were present at interrogations. There were certainly psychologists involved in the abuse. See this piece on the PHR web site First Psychologists Designed Torture, Then Lawyers Justified It See also this Vanity Fair piece Rorschach and Awe on the roles of James Elmer Mitchell, who was attached to the C.I.A. team that eventually arrived in Thailand, and his colleague Bruce Jessen (aka "the Mormon mafia"). The "Educing Information" study referred to in the Vanity Fair article is available as a 372 page PDF file Here.

Why did the CIA need results from interrogations? Because the CIA (whose primary mission is the collection of intelligence) had no human intelligence sources of any use whatsoever. All that secret funding, vast office blocks, agent programes - and zilch results. Precisely the problem the UK had when faced with the PIRA threat in both Northern Ireland and the UK mainland.

So claims by psychologists (who made a lot of money out of government funding) that inhuman and degrading treatment would be effective in obtaining actionable intelligence ("the pseudo-science") were latched on by the so-called intelligence professionals as a means to justify their continued existence. That is the context in which opinions justifying the legality of the techniques were sought.

After more than 40 years in litigation, I may be a cynic, but readers will be aware that in the UK we have a split profession. A solicitor who wishes to avoid a professional negligence claim can go a long way towards covering his back by obtaining "Counsel's Opinion" on the legal question on which he is asked to advise. Accountants who wish to devise schemes for wealthy clients (corporate and individual) which fall on the right side of the uncertain divide between tax avoidance and tax evasion, routinely take the opinion of leading tax counsel. And, of course, the diligent lawyer will know that the opinion he gets will in part be predictable as a function of the known philosophy of counsel whose opinion is sought and in part on how the instructions to Counsel are formulated.

Much the same is true of expert witnesses. One chooses one's experts carefully on the basis of their known attitude to difficult issues.

When a "get out of jail free" opinion was sought, did the CIA go through the same process? There are longstanding rumours of close connections between the CIA and the Mormon church dating back to the Reagan administration and it has been suggested that Jay Bybee (also a Mormon) has had CIA connections dating back to his time at Brigham Young University and his Mormon missionary work. Could it be just coincidence that Mormon lawyer Bybee was injected into the OLC at the invitation of Alberto Gonzalez and then selected to review the legality of a program devised by other adherents of his church ?

Meridian Magazine is a quite prominent web magazine extolling the virtues of members of the Mormon community and in 2003 it published a fawning encomium of Jay Bybee Jay S. Bybee - Named to Ninth Circuit. This extract gives a flavour of the overall tone:-

"To this influential court comes a husband and father of four, an eagle scout, a returned missionary of the Church of Jesus Christ of Latter-day Saints, and a legal scholar who has been on the fast track since he was a Hinckley scholar at Brigham Young University. Bybee’s distinguished career already spans academic, private, and governmental arenas, and his legal analyses on such topics as the First Amendment, Separation of Powers, and Federalism have appeared in top law reviews and journals throughout the U.S. Generally considered a conservative, he is tenacious in his pursuit of careful and precise legal analysis."But there was also a direct quote from the appointee to the Appellate Bench:-

"It’s no surprise that Bybee’s interest in the rule of law extends to a study of ancient law, notably in Old Testament times. As the Gospel Doctrine teacher in his ward, he saw parallels in the way people interpreted and applied ancient law to the way many individuals do so today.

“People in the Old Testament were absolutely devoted to the law of Moses and required exact obedience to it,” he explained. “Their main concern was that they not find
themselves on the wrong side of the law, and they spent their lives trying to bring themselves and each other into conformity with it. While we should admire their zeal to follow the rule of law, we nevertheless have to recognize that without understanding the spirit or purpose of the law, there aren’t enough rules in the world to make a person be good.”
Consider Judge Bybee's recent public comment to the New York Times:-

"“The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”Who better to write an opinion seeking to draw a precise line between "torture" and "inhuman and degrading treatment". A Mormon who has made a study of how nitpicking interpretations of religious law can be used to develop the religious law equivalent of get out of jail free cards is asked to opine on the legality of techniques advocated by other Mormons. Did the instructions in reality amount to: "we want to use techniques which do amount to inhuman and degrading treatment, but stop short of torture"?

Was Jay Bybee specially selected to write this opinion because of his known background? Was this a case of "let's get the opinion of this particular chap because we know in advance the opinion we can get him to come up with?" It certainly looks like it.

So I agree that the OLC lawyers should not be scapegoated. One general issue is whether the OLC lawyers should be political appointees at all. Career civil servants with tenure would not be under quite the same pressure to come up only with the opinions the executive wants to hear. In reality the proper OLC role is much more to provide the opinions the political head of the Department of Justice doesn't want to hear.

The other issue is that while the OLC memoranda might well operate as a "get out of jail free card" for the knuckledraggers at the bottom of the torture food chain, I simply do not see how they can act as an excuse for the principals - the high officials - indeed anyone above the rank of, say, an Army colonel or his civilian equivalent. People at such a level should have known that both "torture" and "inhuman and degrading treatment" were incompatible with the obligations of the United States. Neither was permissible in any circumstances.

Indeed, at what point "inhuman and degrading treatment" becomes "torture" may in practice be impossible to define in advance.

Whether Bybee acted in good faith or no, may only be known after full disclosure of documents and testimony elicited as to the tenor of discussions which were not put on paper. Surprisingly often conspiracies do leave a trail as President Nixon discovered. But evidence to the criminal standard of proof may not be available at the end of the day.

As to the scholarship (or lack of it) and competence (or lack of it) demonstrated by the Bybee Memorandum, others will judge. All I can say is that having read what was written, I still think the only gentlemanly course for Judge Bybee to adopt is that he should resign his judicial appointment.

Bybee said:

“The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is."

Does the "thin line" suggest a grey area? It does not suggest a "bright line." Perhaps the "client" required a line be drawn by OLC attoneys. If hindsight is 20-20, was this "thin line" indeed in a sizable grey area? If the "thin line" that was drawn was as correct as Bybee claims, why did the waterboarding and certain other "harsh" techniques of in-terror-gating cease shortly afterwards?

By the bye, take a look at today's LATimes OpEd by one of the attorneys for "a high ranking Al Queda operative" for the impact of this "harsh" in-terror-gation upon his client.


The number of times a criminal act is carried out over a given period of time does not alter the criminality of the act.

You appear to have missed the argument as it has developed since the release of the OLC memos.

A single act of waterboarding causes no pain and is not criminal torture unless one is prepared to argue that SERE training is a generation long crime.

Thus, opponents of the CIA program have shifted to the argument that conducting 183 sessions of waterboarding with KSM over 30 days becomes torture out of repetition. 183 times does sound pretty tough.

However, waterboarding KSM only 5 times over 30 days does not appear to be nearly as tough and significantly weakens the repetition of a non-crime is a crime argument.

Shag from Brookline said...

By the bye, take a look at today's LATimes OpEd by one of the attorneys for "a high ranking Al Queda operative" for the impact of this "harsh" in-terror-gation upon his client.

I got a good belly laugh out of the spin of Zubaydah as an anti communist freedom fighter losing his mind because of the Red Army and CIA.

I believe that Padilla's attorneys spun the same story trying to get his criminal prosecution dismissed and the court was not buying.

However, such al Qaeda propaganda is effective on the usual useful fools.

In addition, CTS, your other two "points" are lacking as well. Let's take it out of the highly-charged context of torture. If a new OLC lawyer mistakenly concluded that murder on federal property was OK, how does that memo alone equate to murder or some vast right-wing type of conspiracy to murder?

Shag from Brookline said:

No prior OLC lawyer has been held criminally responsible for their (il)legal opinions. Better be very careful before you open this Pandora's Box.


A single act of waterboarding causes no pain...

Being very charitable to "Bart"'s rhetorical skills here and assuming arguendo that this is true, it is nonetheless not dispositive. The sine qua non for torture is not "pain".





Isn't everyone thrilled that little Lisa's bro is over his "chagrin" and enjoyed a "good belly laugh" over the LATimes OpEd. If that's not enough to satisfy his torture sadism, perhaps we could send him several gross of flies to pull the wings off.

By the way, it's getting difficult figuring which one is the ventriloquist and which one is the dummy between the tandem trolls tweedledee and tweedledumb as they seem to play "switch-um."

Edgar Bergen is dead. Get over it, dude.

Too bad that Jack Balkin is too scared to allow comments on his latest thread about Secretary Rice's definition of torture, authorized by the President, and whether it violated our obligations under the Conventions Against Torture.

Chucklehead, maybe you should try double-daring him.

This comment has been removed by the author.

Unfortunately, for the rest of us, Bartbuster, Balkin turned off most comments because of your constant "personal insults and name-calling". Keep up the good work though.

This was great (from Ann Coulter):

". . . with plastic walls and soft neck collars, "walling" may be the world's first method of "torture" in which all the implements were made by Fisher-Price.

As the memo darkly notes, walling doesn't cause any pain, but is supposed to induce terror by making a "loud noise": "(T)he false wall is in part constructed to create a loud sound when the individual hits it, which will further shock and surprise." (!!!)

If you need a few minutes to compose yourself after being subjected to that horror, feel free to take a break from reading now. Sometimes a cold compress on the forehead is helpful, but don't let it drip or you might end up waterboarding yourself."


You cannot possibly believe that the purpose of "walling" is simply to induce a loud noise do you? I mean, that does not come close to passing the laugh test. If it was all about noise in order to induce fear/terror (some might say to alter the senses), there are myriad other ways that would be far more effective...

I'm open to any suggestions you may have for making a "loud noise" using a detainees head.

I do not think Professor Balkin is "scared" of comments on his posts, as one of our less constructive contributers somewhat unworthily suggests above.

As I recollect, Professor Balkin has "freedom of speech" reservations about censorship in any form and better things to do with his time than to monitor threads to impose discipline on those whose posts he considers unacceptable for whatever reason.

I do not think he was targeting any one poster but, to some extent, all of us. He has at least given individual contributors the option to turn comments on or off.

Speaking personally, I regret the decision and I think the blog is the poorer for it - but the decision was the Professor's to make. It's his blog after all.

I wish I could say that the off the cuff remarks of the former National Security Adviser to President Bush (subsequently his Secretary of State) at Stanford University are surprising.

Fraulein Professor Rice's academic credentials are in the field of political science rather than law, BSc (Denver), MSc (Notre Dame) and her PhD was also from Denver. Of course, she is now a tenured Professor at Stanford and a Senior Fellow at the Hoover Institution where, no doubt, she will, give out "fair and balanced" (in the Faux News sense) accounts of Der Shrubben Feuhrer's foreign policy triumphs during his two terms. That should not take up too much of the Fraulein Professor's schedule.

From the report, Fraulein Rice appears to have suffered a viral infection which sadly afflicts many officials of the Bush Administration and their fellow travellers. One of the symptoms of the virus is a delusion that Der Shrubben Fuherer was an absolute monarch rather than a head of state of limited authority subject to the Constitution and the law.

"And so, by definition, if it was authorized by the president, it did not violate our obligations under the Conventions Against Torture. " seems to have been a symptomatic remark.

"By the way, I didn't authorize anything. I conveyed the authorization of the administration to the agency. That they had policy authorization subject to the Justice Department's clearance. That's what I did." is also newsworthy as a rather lame variant of the 3rd Reich's "I was only obeying orders".

Should it come to a prosecution, I would hope her words might get the same short shrift from the DC Circuit as "I was only obeying orders" got at Nuremberg.

Crepitation is so anal. But a Bybee Wallbanger can really hurt.


Just to get in on the fun--I wanted to let you know that the memos do not say that "walling" causes no pain. The CIA claimed that it does not cause "substantial pain."

If it causes no pain at all, there's no reason to stop at 20-30 times (the stated limit).

By setting limits, there is a clear recognition that the cumulative effect of walling matters.

Similarly, Bart's suggestion that waterboarding is painless strikes me as a bit odd. Choking (or forced constrained breathing) is, after all, not like nothing is happening.

I had a near drowning experience once (while surfing in big waves in my twenties)--it was one of the worst experiences of my life. I was fine on the beach later, but not while it was happening.

Maybe we have different understandings of "pain" and "suffering."


Maybe. What kind of "pain" and "suffering" do you think people who were burned alive and jumped from the WTC went through?,0.jpg

Maybe that was someone that Bruce Jessen and Jim Mitchell knew?


1) What makes you think that a professor of political science specializing on foreign relations would be ignorant of the constitutional powers of the President in the area of foreign policy?

2) As you well know, under our Constitutional system, the President can withdraw from treaties and thus perform all lesser suspensions and exceptions. Thus, Condi Rice is absolutely correct that, by definition, a presidential order cannot violate a treaty. Jack's comparison with the Nixon comment concerning domestic law is not at all analogous.

2) Condi was national security advisor to the President and then Sec State. She was not in the chain of command over CIA and could hardly authorize the CIA interrogation program.


The fact that an experience is unpleasant does not mean it causes physical pain.

The Torture Statue outlaws the intentional infliction of severe pain or suffering, not unpleasantness.


As a Brit, you might be interested in this.

After admitting that he has finally read the CIA memos detailing the intelligence gained by CIA from KSM & Co and essentially admitted that it saved lives, President Obama claimed that the Brits did not use coercive interrogation during WWII when they were "being bombed into smithereens." As usual, Obama has his history completely wrong.

The Guardian has reported about how the British MI19 ran a detention center in London nicknamed The Cage where they broke German POWs privileged under the GCs with far more brutal tactics than CIA ever used against al Qaeda.

Maybe Obama needs to cite the Swedes next time.

TomDispatch today

introduces, with extensive links to various torture sources, Karen J. Greenberg's "Kiss the Era of Human Rights Goodbye What Bush Willed to Obama and the World."

Bush beans and Rice are not very palatable except for in-terror-gation.

One of the more pernicious arguments made ad nauseam by the torture apologists is that other nations use torture and cruel and degrading treatment against persons in official custody and therefore the United States ought to be able to do so too without being criticised.

Bart De Palma brings us the example of the British treatment of 3,500 SS and Gestapo prisoners who, 60 at a time, passed through the "Knightsbridge Cage". Actually, Bart has his history wrong. The Cage was a detailed interrogation centre for a tiny fraction of the prisoners taken post-war and who were suspected of concealing their identity as perpetrators of mass murder on a scale which, of course, 9-11, shocking as it was, did not even begin to equal in gravity.

It is perhaps well-known that both Churchill and Stalin were not well disposed to the Nuremberg War Crimes Tribunals. Both really rather believed that victory in war gave a "do as thou wilt" right of disposal of the leaders of the defeated nation. Churchill's gut reaction was that the Nazi leadership should be simply stuck up against a wall somewhere and shot.

It was American Exceptionalism (in its unperverted form) which was so shocked by what was found at the concentration camps which insisted that there had to be trials and thus set in motion the developments in international human rights law which have taken place since then.

The law school of the University of Missouri-Kansas City Law School has a nice little mini web site on the Nuremberg trials Nuremberg Trials, a site which really ought to be emulated at every law school in the Western world. Nuremberg jurisprudence ought to be a mandatory subject of study for every first year law student. This is an extract from Professor Douglas Lindner's introduction to the material:-

"In 1944, when eventual victory over the Axis powers seemed likely, President Franklin Roosevelt asked the War Department to devise a plan for bringing war criminals to justice. Before the War Department could come up with a plan, however, Treasury Secretary Henry Morgenthau sent his own ideas on the subject to the President's desk. Morgenthau's eye-for-an-eye proposal suggested summarily shooting many prominent Nazi leaders at the time of capture and banishing others to far off corners of the world. Under the Morgenthau plan, German POWs would be forced to rebuild Europe. The Treasury Secretary's aim was to destroy Germany's remaining industrial base and turn Germany into a weak, agricultural country.

Secretary of War Henry Stimson saw things differently than Morgenthau. The counter-proposal Stimson endorsed, drafted primarily by Colonel Murray Bernays of the Special Projects Branch, would try responsible Nazi leaders in court. The War Department plan labeled atrocities and waging a war of aggression as war crimes. Moreover, it proposed treating the Nazi regime as a criminal conspiracy. Roosevelt eventually chose to support the War Department's plan.

On June 26, Robert Jackson flew to London to meet with delegates from the other three Allied powers for a discussion of what to do with the captured Nazi leaders. Every nation had its own criminal statutes and its own views as to how the trials should proceed. Jackson devoting considerable time to explaining why the criminal statutes relating to wars of aggression and crimes against humanity that he proposed drafting would not be ex post facto laws. Jackson told negotiators from the other nations, "What we propose is to punish acts which have been regarded as criminal since the time of Cain and have been so written in every civilized code." The delegates also debated whether to proceed using the Anglo-American adversarial system with defense lawyers for the defendants, or whether instead to use the judge-centered inquisitive [sic] system favored by the French and Soviets.

After ten days of discussion, the shape of the proceedings to come became clearer. The trying court would be called the International Military Tribunal, and it would consist of one primary and one alternate judge from each country. The adversarial system preferred by the Americans and British would be used. The indictments against the defendants would prohibit defenses based on superior orders, as well as tu quoque (the "so-did-you" defense).".

So there it is: international human rights law took a giant leap forward thanks to Roosevelt, Stimson and Jackson and since then, neither "I was only obeying orders" nor the tu quoque arguments have been accepted as justification for torture or for inhuman and degrading treatment.

Bart's tu quoque argument that the British have in the past been guilty of both, while entirely true, is thus irrelevant but for what it is worth, on this thread I said this:

"I must acknowledge that the British colonial experience included many examples of "dirty wars", "punitive expeditions" and the like in the course of which there were egregious examples of human rights violations of at least equal gravity to those now in issue. We should not forget that the very term "concentration camp" was invented by the British during the Boer Wars, or that the much criticised emergency regulations used in Israel are a straight reprint of similar regulations which each and every colonial secretary in our far flung colonial administrations had in a filing cabinet for the eventuality that the "natives" got out of hand....Yet the mistakes we British made from about 1700 to 2000 including our post 1945 experiences in situations as diverse as Cyprus, Egypt, Iraq, Kenya, Malaya, Northern Ireland and Palestine (to name but a few) have been repeated elsewhere by successive US administrations, particularly but not exclusively, by those in office under the Reagan, and Bush II administrations....One of the many lessons the UK has painfully learned over time is that the "take the gloves off" approach to the interrogation of all categories of detainees, be they in the criminal justice system, in the hands of the intelligence services, or in the hands of the military is always counter-productive. That is not to say that there have not been excesses even as recently as the campaign against the Provisional IRA for which the UK has more than once been found wanting in the European Court of Human Rights and in Iraq (as to which there have been prosecutions, large sums of compensation paid and there are on-going investigations and inquiries)."I can add this: what happened at the "Knightsbridge Cage" is as nothing compared to what the British colonial authorities did in places like Malaya and Kenya and your current President has cause to have particular knowledge of what happened in Kenya. That knowledge may serve to stiffen his personal determination to ensure that henceforward the United States will employ neither torture nor inhuman and degrading treatment of any category of detainee. I draw comfort from at exchange between the President and Jake Tapper of ABC News at the Presidential Press Conference of 29 April 2009"TAPPER: Thank you, Mr. President. You've said in the past that waterboarding, in your opinion, is torture. Torture is a violation of international law and the Geneva Conventions. Do you believe that the previous administration sanctioned torture?

PRESIDENT OBAMA: What I've said -- and I will repeat -- is that waterboarding violates our ideals and our values. I do believe that it is torture. I don't think that's just my opinion; that's the opinion of many who've examined the topic. And that's why I put an end to these practices. I am absolutely convinced it was the right thing to do, not because there might not have been information that was yielded by these various detainees who were subjected to this treatment, but because we could have gotten this information in other ways, in ways that were consistent with our values, in ways that were consistent with who we are

TAPPER: I'm sorry, sir, but do you believe the previous administration sanctioned torture?

PRESIDENT OBAMA: I believe that waterboarding was torture. And I think that the -- whatever legal rationales were used, it was a mistake.
I have maintained on previous threads that I believe the Obama Administration policy is one of "festina lente", that there will be more and more public disclosure of the gory details of detainee abuse in the not unreasonable expectation that the general public come to the conclusion that an American government should not have behaved thus. The investigation will proceed and if there is a good arguable case there may well be prosecutions.

Bart then asserts a supposed constitutional power of the President: "the President can withdraw from treaties and thus perform all lesser suspensions and exceptions".

1. Most modern treaties have a procedure for suspension, derogation or withdrawal. Whatever the domestic jurisprudence, in international law no unilateral action otherwise in accordance with those procedures is effective. Further, I do not believe that the Bush Administration took any steps to suspend its CAT obligations, so the question is academic. Indeed even in her rather flustered remarks at Stanford, Ms Rice did not relay on any suspension of the CAT - indeed she asserted US compliance with it.

2. The CAT has been given effect in US domestic law by legislation. So absent an Act of Congress in regular form certain criminal offences remain on the statute book. I trust that poor Bart is not arguing that the US President has the power to dispense individuals from complying with the law. While that power was claimed by the Stuart Monarchs it ceased to be part of the British Royal Prerogative with the 1688 Glorious Revolution and although the prerogative of pardon was given to the President by the US Constitution, I did not notice any provision empowering the President to dispense with the law of the land. If Bart contends otherwise, would he please cite authority and distinguish the President's duty to see that the law is enforced.

Bart's next assertion is:-

"Condi was national security advisor to the President and then Sec State. She was not in the chain of command over CIA and could hardly authorize the CIA interrogation program."I am aware of the offices held by Ms Rice. Her statement appears to be an assertion that no member of the National Security Council can be held criminally liable for torture authorised by the President because (i) they were only transmitting an administration decision (ii) it was conditional on legal advice that the procedures were lawful.

As far as I am aware "the Administration" has no juridical personality. It is not an individual, nor a partnership, nor a corporation sole, nor a corporation aggregate. Thus it cannot be sued or indicted.

I am not an expert in US Criminal Procedure but I suspect it does have some similarities with our jurisprudence. Does the US not also have the concepts of principals in the 1st and 2nd degree, and of conspiracy? I would not have thought it was beyond the wit of any competent prosecutor to draw an indictment bringing in each and every member person in the chain of command leading to torture and/or inhuman and degrading treatment and moreover all those who participated in the process of advising counselling or procuring the issue of the orders (which seems to me to encompass the entire NSC and the staffs of the participants if the evidence can be found against the individuals to justify the counts on a putative indictment). Hence the need for investigation.

Again, take the list of acts complained of in the LA Times article which apparently Bart found so amusing:-

(i) battery occasioning actual bodily harm (torture if prolonged)
(ii) stripping him naked (degrading treatment)
(iii) suspension from hooks in the ceiling - assault (inhuman and degrading treatment - torture if prolonged)
(iv) sleep deprivation (inhuman and degrading treatment - torture if prolonged)
(v) 83 waterboarding episodes (torture).

Sequelae: "he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures".

Bart who claims to have military and legal (criminal prosecutorial and defence) expertise might care to make the assumption that these acts were carried out by on in the presence of US military personnel acting under the orders of a Colonel in the US Army in a US detention facility - (as it appears likely that various combinations of them were). What charges does he say would lie against the men, their NCO's and the Colonel in respect of these acts? What penalties could a military jury impose at a Court martial? In the event that Bart does not care to do so, perhaps someone else with the requisite specialist knowledge could oblige. Does Bart contend that "I was only following orders" would be a defence at law to such charges? Or that, "I only transmitted the Orders down the chain" would serve?

Thus we come back to the OLC Memos. Does advice that "x" may be inhuman and degrading treatment but it does not cross the line into "torture" excuse criminal liability for ordering or aiding and abetting, counselling or procuring any of the acts - whether torture or something less? Were the memoranda written in good faith or as a "get out of jail free" card ? If the latter, what is the liability of those who sought to provide the latter?


One of the more pernicious arguments made ad nauseam by the torture apologists is that other nations use torture and cruel and degrading treatment against persons in official custody and therefore the United States ought to be able to do so too without being criticised.


At the risk of starting one of your multiple paragraph tears, you have it completely backwards.

It was Mr. Obama citing to an imaginary WWII era British intelligence service that allegedly did not use coercion as justification for his order partially blinding our CIA and foregoing intelligence that he admitted saved American lives. I corrected Mr. Obama's misuse of your country's history to make a incorrect policy argument.

As you well know, I am the leading critic here against citation to foreign law to guide the interpretation of American law or conforming our policies to those of foreign countries in ways that are contrary to our national interests.

In this spirit, I am hardly recommending that our CIA adopt your Britain's long history of actual torture to gain intelligence. Simple coercion appears to work just fine at saving lives as Mr. Obama is now conceding.

I welcome Mourad's historical discussions.

Jane Mayer dedicates "The Dark Side" in part to her grandparents, "Mary and Allan Nevins, who passed on to me a love of American history and an admiration for those who have fought to fulfill the promise of the country's ideals."

Ignorance of history helps to promote the wrongs at issue, and we should be depressed that the likes of Rice and Yoo are out there 'educating' people.

I'd add the top military and political people who opposed the Addington/Cheney approach from within, an approach that made John Ashcroft (!) adds to my respect to our system as a whole.

"look like a moderate" somehow was deleted before my last remark was entered.

Is little Lisa's bro making an effort at bestowing "legend" status upon himself with this:

"As you well know, I am the leading critic here against ...."

A list of what little Lisa's bro is against would take too long to prepare with this comment. But I'm reminded of the late great blues singer Jimmy Rushing's "Harvard Blues" with the Count Basie band, about the mysterious Rinehart on the Harvard campus. (The late George Frazer penned the words.) Is little Lisa's bro Balkinzation's Rinehart despite the fact he's clearly not an indifferent guy?

Don't you just love this self-described "leading critic"? I wonder how Tweedledumb will react to little Lisa's bro's claim.

The Gaurdian report is troubling. Andrew Sullivan discusses it today.

It appears the intended product of "the cage" was just confessions, whether true or not, and not actionable intelligence. I intend to read Darius Rejali's book, "Torture and Democracy," as soon as possible.

Shag from Brookline:

I bow down to Bart's greatness just like Obama bowed down to the Saudi king.

Re Mike Slater's post.

Yes. During the war, German POWs were interned and by the end of the war most had been released on parole - some are still here as elderly grandparents of British children.

At the end of the war every German who was in military uniform or without documentation was interned. Huge teams of officials screened the detainees and most were quickly released back into the civilian population.

But there was a hunt for the Nazi leaders, in particular the SS, with a view to dealing with them for their crimes. It quickly became known that many ex-SS officers had procured false identities and secreted funds overseas - not difficult since they had had the whole resources of the 3rd Reich at their disposal and numbers were intelligent enough to foresee the German defeat and prepare for it.

Their aim was to masquerade as members of the ordinary military and as such get released from internment - and some planned to go elsewhere and re-found the Reich. As is well known there were numbers who did get away with the assistance of sympathisers - even within the RC Church which at that time was replete with clerics (in France, Italy and Spain for example) who felt that democracy was not necessarily the best means to salvation.

The Knightsbridge Cage was not seeking actionable intelligence for war purposes - it was a screening centre for internees who had either been identified or denounced as SS members but were claiming to be someone else.

Since the Allies had just liberated the Concentration Camps the atrocities being fresh in everyone's mind and there was a quite understandable desire that the perpetrators should meet their just deserts.

There is no doubt form the survivng official records that Col Scotland ordered or permitted the use of techniques - some of which were unlawful then - and even more so today and that higher authority covered that up.

All the more reason why there should be no cover-up now.

At least we know where Yoo and Bybee are.

2) 'Advice' constructed to circumvent well-established doctrine in order to provide legal cover for on-going or planned conduct is, by definition, not principled.
3) 'Advice' constructed so as to please one's superiors is, by definition, not independent.
In addition, CTS, your other two "points" are lacking as well. Let's take it out of the highly-charged context of torture. If a new OLC lawyer mistakenly concluded that murder on federal property was OK, how does that memo alone equate to murder or some vast right-wing type of conspiracy to murder?A) But, ‘it’ is in the “highly-charged context of torture.”
B) If an OLC lawyer concluded that murder on federal property was OK to circumvent well-established doctrine in order to provide legal cover for on-going or planned conduct and/or so as to please [her/his] superiors, such advice would be neither principled nor independent.

So, altering the example does not alter my 'points.' On the other hand, it is instructive that the suggested example also requires an absurd leap of faith: i.e., that we could believe any OLC lawyer would make such a 'mistake.'

Check out Dan Froomkin's White House Watch today for his segment on "Krauthammer's Asterisks" in today's WaPo responding to Chuck's OpEd today on when torture is okay.

It is comforting, in a way, to know that the tactics advocated by Bart & Charles are just the tactics needed to prove beyond a shadow of a doubt that both Bart & Charles were deeply involved in the 9/11 plot.

Take a look at John Dean's article at

"Q & A Session on 'Bad Advice: Bush's Lawyers In The War On Terror'" where he interviews author Harold Bruff on his new book. This book was published before the recent release of OLC memos/opinions detailing harsh interrogation techniques but Dean asks the author about them.

Former WTC prosecutor Andrew McCarthy's letter of May 1, 2009, to Attorney General Holder declining the invitation to attend the May 4 roundtable meeting of the President's Task Force on Detention Policy:

Dear Attorney General Holder:

This letter is respectfully submitted to inform you that I must decline the invitation to participate in the May 4 roundtable meeting the President’s Task Force on Detention Policy is convening with current and former prosecutors involved in international terrorism cases. An invitation was extended to me by trial lawyers from the Counterterrorism Section, who are members of the Task Force, which you are leading.

The invitation email (of April 14) indicates that the meeting is part of an ongoing effort to identify lawful policies on the detention and disposition of alien enemy combatants—or what the Department now calls “individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.” I admire the lawyers of the Counterterrorism Division, and I do not question their good faith. Nevertheless, it is quite clear—most recently, from your provocative remarks on Wednesday in Germany—that the Obama administration has already settled on a policy of releasing trained jihadists (including releasing some of them into the United States). Whatever the good intentions of the organizers, the meeting will obviously be used by the administration to claim that its policy was arrived at in consultation with current and former government officials experienced in terrorism cases and national security issues. I deeply disagree with this policy, which I believe is a violation of federal law and a betrayal of the president’s first obligation to protect the American people. Under the circumstances, I think the better course is to register my dissent, rather than be used as a prop.

Moreover, in light of public statements by both you and the President, it is dismayingly clear that, under your leadership, the Justice Department takes the position that a lawyer who in good faith offers legal advice to government policy makers—like the government lawyers who offered good faith advice on interrogation policy—may be subject to investigation and prosecution for the content of that advice, in addition to empty but professionally damaging accusations of ethical misconduct. Given that stance, any prudent lawyer would have to hesitate before offering advice to the government.

Beyond that, as elucidated in my writing (including my proposal for a new national security court, which I understand the Task Force has perused), I believe alien enemy combatants should be detained at Guantanamo Bay (or a facility like it) until the conclusion of hostilities. This national defense measure is deeply rooted in the venerable laws of war and was reaffirmed by the Supreme Court in the 2004 Hamdi case. Yet, as recently as Wednesday, you asserted that, in your considered judgment, such notions violate America’s “commitment to the rule of law.” Indeed, you elaborated, “Nothing symbolizes our [adminstration’s] new course more than our decision to close the prison at Guantanamo Bay…. President Obama believes, and I strongly agree, that Guantanamo has come to represent a time and an approach that we want to put behind us: a disregard for our centuries-long respect for the rule of law[.]” (Emphasis added.)

Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting. After all, my choice would be to remain silent or risk jeopardizing myself.For what it may be worth, I will say this much. For eight years, we have had a robust debate in the United States about how to handle alien terrorists captured during a defensive war authorized by Congress after nearly 3000 of our fellow Americans were annihilated. Essentially, there have been two camps. One calls for prosecution in the civilian criminal justice system, the strategy used throughout the 1990s. The other calls for a military justice approach of combatant detention and war-crimes prosecutions by military commission. Because each theory has its downsides, many commentators, myself included, have proposed a third way: a hybrid system, designed for the realities of modern international terrorism—a new system that would address the needs to protect our classified defense secrets and to assure Americans, as well as our allies, that we are detaining the right people.

There are differences in these various proposals. But their proponents, and adherents to both the military and civilian justice approaches, have all agreed on at least one thing: Foreign terrorists trained to execute mass-murder attacks cannot simply be released while the war ensues and Americans are still being targeted. We have already released too many jihadists who, as night follows day, have resumed plotting to kill Americans. Indeed, according to recent reports, a released Guantanamo detainee is now leading Taliban combat operations in Afghanistan, where President Obama has just sent additional American forces.
The Obama campaign smeared Guantanamo Bay as a human rights blight. Consistent with that hyperbolic rhetoric, the President began his administration by promising to close the detention camp within a year. The President did this even though he and you (a) agree Gitmo is a top-flight prison facility, (b) acknowledge that our nation is still at war, and (c) concede that many Gitmo detainees are extremely dangerous terrorists who cannot be tried under civilian court rules. Patently, the commitment to close Guantanamo Bay within a year was made without a plan for what to do with these detainees who cannot be tried. Consequently, the Detention Policy Task Force is not an effort to arrive at the best policy. It is an effort to justify a bad policy that has already been adopted: to wit, the Obama administration policy to release trained terrorists outright if that’s what it takes to close Gitmo by January.

Obviously, I am powerless to stop the administration from releasing top al Qaeda operatives who planned mass-murder attacks against American cities—like Binyam Mohammed (the accomplice of “Dirty Bomber” Jose Padilla) whom the administration recently transferred to Britain, where he is now at liberty and living on public assistance. I am similarly powerless to stop the administration from admitting into the United States such alien jihadists as the 17 remaining Uighur detainees. According to National Intelligence Director Dennis Blair, the Uighurs will apparently live freely, on American taxpayer assistance, despite the facts that they are affiliated with a terrorist organization and have received terrorist paramilitary training. Under federal immigration law (the 2005 REAL ID Act), those facts render them excludable from the United States. The Uighurs’ impending release is thus a remarkable development given the Obama administration’s propensity to deride its predecessor’s purported insensitivity to the rule of law.

I am, in addition, powerless to stop the President, as he takes these reckless steps, from touting his Detention Policy Task Force as a demonstration of his national security seriousness. But I can decline to participate in the charade.

Finally, let me repeat that I respect and admire the dedication of Justice Department lawyers, whom I have tirelessly defended since I retired in 2003 as a chief assistant U.S. attorney in the Southern District of New York. It was a unique honor to serve for nearly twenty years as a federal prosecutor, under administrations of both parties. It was as proud a day as I have ever had when the trial team I led was awarded the Attorney General’s Exceptional Service Award in 1996, after we secured the convictions of Sheikh Omar Abdel Rahman and his underlings for waging a terrorist war against the United States. I particularly appreciated receiving the award from Attorney General Reno—as I recounted in Willful Blindness, my book about the case, without her steadfastness against opposition from short-sighted government officials who wanted to release him, the “blind sheikh” would never have been indicted, much less convicted and so deservedly sentenced to life-imprisonment. In any event, I’ve always believed defending our nation is a duty of citizenship, not ideology. Thus, my conservative political views aside, I’ve made myself available to liberal and conservative groups, to Democrats and Republicans, who’ve thought tapping my experience would be beneficial. It pains me to decline your invitation, but the attendant circumstances leave no other option.

Very truly yours,


Andrew C. McCarthy

Bravo sir!

For all of you folks who defended al Qaeda terrorist Ali Saleh Khalah al Marri as some innocent student and family man against whom there was no evidence to detain as a foreign enemy combatant, I direct you to his plea offer:

The defendant researched online information related to various cyanide compounds. The defendant's focus was on various cyanide substances, including hydrogen cyanide, potassium cyanide, and sodium cyanide. The defendant reviewed toxicity levels, the locations where these items could be purchased, and specific pricing of the compounds. The defendant also studied various commercial uses for cyanide compounds. The defendant also explored obtaining sulfuric acid.

The defendant agrees that the government would prove at trial that sulfuric acid is a well known binary agent which is used in a hydrogen cyanide binary device to create cyanide gas, and that this is the method taught by al Qaeda for manufacturing cyanide gas. The defendant further agrees that the government would prove at trial that his research into various cyanide compounds is consistent with the type of research conducted by persons trained in camps teaching advanced poisons courses to terrorist organizations, including al Qaeda. The defendant also agrees that the government would prove at trial that an almanac recovered in the defendant's residence was bookmarked at pages showing dams, waterways and tunnels in the United States, which is also consistent with al Qaeda attack planning regarding the use of cyanide gases.

I am sure your shocked mea culpas will be following.


I don't recall anybody here defending al Marri as innocent -- seems to me it was always about being held incommunicado and without charges for 8 years.

I am unable to come up with an explanation why, if the evidence was so damning, the government sat on it for nearly 8 years.

Something doesn't smell right here.


This evidence was published in al Marri's original indictment before he was detained as an enemy combatant on the basis of that evidence.

al Marri's apologists here and elsewhere did not care or ignored it and changed the subject to his credit card charges.

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Go get 'em, Bart!

Maybe. What kind of "pain" and "suffering" do you think people who were burned alive and jumped from the WTC went through?
# posted by  Charles : 8:24 PM

The people in the World Trade Center suffered terribly, so this is what we will do
to even the score. We will take into custody someone who we think was connected
in some way with this terrible act and hang him from the ceiling with handcuffs so
he can't go to sleep and pour water in his nose so he will give us some actionable
intelligence whether he has it or not and we will say that anything we do to him is
justified because he looks like an Islamofascist.

Well, I've never 'defended' al Marri or anyone else whose case I had not looked into.

But, what's the relevance? We are discussing the possibility of investigating and prosecuting U.S. citizens for engaging in or facilitating torture.

I cannot tell if these references to various cases, or to the suffering of people on 9/11, and so forth are intentional red herrings or just evidence of muddled minds.

By the way, Sahg, thanks for the link to the LA Times,

oops: Shag, not Sahg. :-}


Do provide us with a citation for where all this evidence was available in 2002.

It doesn't matter. Bart and Charles are just trying to derail the topic. It's another element of their (tandem) bad-faith presence here. Repeat Brian Sussman's talking points, ignore anything other people bring up, and change the subject. I wish they'd both just get the banhammer like the suspected terrorists for whom they advocate torture.

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See page 4 of this amici brief in support of al Marri's appeal describing the 2003 indictment of al Marri prior to his detention as an enemy combatant. The evidence that formed the basis for al Marri's recent plea agreement was listed in the 2003 indictment.

The 2006 Rapp Declaration entered by the government in opposition to al Marri's habeas petition provides far more information.

Both the indictment and the Rapp Declaration provided more than enough evidence to detain al Marri as an enemy combatant.

I am sure your shocked mea culpas will be following.
Exactly who here owes a mea culpa, Bart?

You're changing the subject and you're full of excrement.

It is perhaps typical of poor Bart, that he reproduces Andrew C. McCarthy's May 1st 2009 letter to Attorney-General Holder, referring only to the fact that he was the former Assistant US Attorney of the Southern District of New York who prosecuted the WTC bombing. No source is given for the letter. So perhaps I can assist.

What Bart does not mention is that Mr McCarty is a Fellow of the Foundation for the Defence of Democracy, a neocon propaganda foundation which purports to have counter-terrorism expertise but whose "Leadership Council" includes the likes of: Paula Dobriansky, Steve Forbes, Bill Kristol, Jack Kemp, Louis J. Freeh, Joseph Lieberman, Newt Gingrich, Max Kampelman, Robert Macfarlane, and James Woolsey and whose Board of Advisers includes Gary Bauer, Rep. Eric Cantor, Gene Gately, General P.X. Kelley, Charles Krauthammer, Kathleen Troia "KT" McFarland, Richard Perle, Steven Pomerantz, Oliver "Buck" Revell, and Francis J. "Bing" West.

The origins of the FDD as a right-wing propaganda machine were described in this Nov 2003 American Conservative article by Daniel McCarthy Most Favored Democracy - The Foundation for the Defense of Democracies goes on offense.

FDD's principal so-called counter-terrorism expert is one Walid Fares, who has dual Lebanese/US nationality and Lebanese Falange (and therefore pro-Israel) connections, an Ahmed Chalabi wannabe who is on the speakers' list of Benador Associates, and is a frequent TV pundit whenever the networks need someone from the neoconservative right to ensure that a Middle East debate is "fair and balanced" and absolutely pro-Likud.

Mr McCarthy joined this nest of neocon vipers in 2004 and in 2006 set up an off-shoot: the "Center for Law & Counterterrorism" whose advisers are: William Bennett, a died-in the-wool neocon and with others named above a member of the Project for the New American Century (the wonderful people who brought you the war in Iraq) as well as the Toxic Texan's last AG, Judge Michael B. Mukasey and others of that ilk.

Mr McCarthey received an e-mail invitation from AG Holder and posted this article on the NRO web site Saying No to Justice together with his letter at the same time as he e-mailed it to the Attorney General.

The letter begins with an assertion that it is "respectfully submitted", which in the circumstances is more than questionable.

What this neocon-paid apologist for illegality has done is seize on a doubtless genuine invitation to tackle the real problem of what to do about suspects who have been detained in questionable circumstances for many years and may have been appallingly treated during their detention, thus making fair trials according to law of those of them who may have committed criminal acts well-nigh impossible. Instead of contributing such wisdom as he may have to that knotty problem, McCarthy seizes on the invitation of the Chief Law Officer of the United States, not only to behave in a grossly discourteous manner by not first giving the AG an opportunity to actually receive the letter before going public with his diatribe, but also to demonstrate a rather shocking contempt for the rule of law which some may find unbefitting of a former federal prosecutor.

This is conduct dear Bart thinks merits applause. All it perhaps actually shows is how easy it is for the neocon foundations to recruit apologists for their propaganda by laying out considerably more than 30 pieces of silver.


Call me old-fashioned, but I still prefer to have criminals charged rather than held incommunicado, and, when charged, I think hearsay evidence (and I thought so at the time the "Rapp declaration" was released) -- especially when presented by those holding the person, should not be accepted at face value.

In other words, you've got nothing that shows, at the time you think everybody should have relegated al Marri to military oblivion, that there was real evidence for doing so.

And you think people who stood up for limitations on the ability of the government to throw people in prison and keep them uncharged should apologize?

BTW, in what universe is arguing for unchecked and uncharged detention authority of US residents by the government a libertarian, or "classical liberal" position?

First DUI Offense in California
1st Drunk Driving Conviction
Jail for no less than 96 hours and no more than 6 months. The fine will be no less than $390 and no more than $1,000. Your drivers license will be suspended for six months, however, if allowed, the court may grant the convicted a temporary restricted license. Your drivers license will not be reinstated until proof of financial responsibility and proof that you have completed a "driving under the influence" program approved by the state.
Second DUI Offense in California
2nd Drunk Driving Conviction
Jail for no less than 90 days and no more than 1 year. The fine will be no less than $390 and no more than $1,000 . Your drivers license will be suspended for 1 year. Your drivers license will not be reinstated until proof of financial responsibility and proof that you have completed a "driving under the influence" program approved by the state.

Third DUI Offense in California
3rd Drunk Driving Conviction
Jail for no less than 120 days and no more than 1 year. The fine will be no less than $390 and no more than $1,000 . You will be considered by the state a "habitual traffic offender" for 3 years following your conviction and have your license suspended for 2 years. Your drivers license will not be reinstated until proof of financial responsibility and proof that you have completed a "driving under the influence" program approved by the state. The person may apply for a restricted driver's license under certain circumstances by the court.
Fourth DUI Offense in California
4th Drunk Driving Conviction
Jail, Prison or both, for no less than 180 days and no more than 1 year. The fine will be no less than $390 and no more than $1,000 . You will be considered by the state a "habitual traffic offender" for 3 years following your conviction and have your license revoked for 3 years. Your drivers license will not be reinstated until proof of financial responsibility and proof that you have completed a "driving under the influence" program approved by the state. The person may apply for a restricted driver's license under certain circumstances by the court. The person may apply for a restricted driver's license under certain circumstances by the court.
Drunk driving laws in The State of California are similar to many other DUI laws across the United States. California's DUI law prohibits a person from driving when they have a concentration of .08 percent or more alcohol in their blood system. This is the standard measurement use by all states for the "impaired" driver.


c2h5oh: ,BTW, in what universe is arguing for unchecked and uncharged detention authority of US residents by the government a libertarian, or "classical liberal" position?Has Bart declared himself a libertarian? They do not seem to want him much over at Volokh Conspiracy. For all that I think genuine [rather than convenient] libertarians are a bit on the nutty side, I do recognize that they have some kind of respect for individual rights; moreover, they seem to be reasonably sympathetic to human suffering.

I would not venture to classify Bart's political morality - I don't know him - but, based on his posts here and elsewhere, I think he is more of a Republican apologist than anything else.

His taking pleasure in reading of the abuse of other humans is not ascribable to a specific political morality. It's a different kind of moral issue.

On the other hand, I wonder what would happen to the discourse, here, if Bart [and Charles] vanished. Would we all just agree with one another, or would we be able to address issues in a more nuanced manner? I really do not know, but it is an interesting question.

Today's LATimes includes an OpEd by A. J. Langguth titled "U.S. has a 45-year history of torture" that takes us back to 1964 with the CIA OPS in Latin America. Here's the closing paragraph:

"But in our country, there's been a disheartening development: In 1975, U.S. officials still felt they had to deny condoning torture. Now many of them seem to be defending torture, even boasting about it."

Here's the neocon bumper sticker for 2012:


Here is a link some may find interesting: The Federalist Society Online Debate Series - OLC Memos.

Interesting firstly because the OLC memos are the subject matter of the debate, but also because the participants in the debate thus far are:

Professor Stephen Vladek;
Professor David Luban (who contributes to this blog);
Professor Douglas Kmiec (formerly Reagan + Daddy Bush OLC);
Professor Scott Horton (who contributes to this blog);
David Rivkin (ex Reagan + Daddy Bush administrations);
Andrew McCarthy (Director, Center for Law and Counterterrorism, Foundation for Defense of Democracies);

and - mirabile conspectu our own, our very own,

Bart De Palma -a largely DUI defence attorney in a one-man practice in the sticks) whose relevant background is a very short period of active military service in Gulf War I, some junior intelligence service in Germany (!) and his blog Citizen Pamphleteer.

So it seems as if even the Fed-Soc was forced to scrape the bottom of the barrel, somewhat, for contributers from the neocon far right. Or could it be that the Fed-Soc is trying to go respectable?

It's interesting to note that little Lisa's bro was not wearing his "Backpack of Lies" during these Fed. Soc. debates on torture. But that's where his words came from, his Cornucopia of Cunning Lingualistics. I'm reminded of the old lumberjack joke as little Lisa's bro takes his turn in the barrel.

Based on a perusal of the Fed-Soc OLC debate it appears that Rivkin, McCarthy & Bart are Nutters-of-a-Feather.

Here is a nugget of Bart-vision from the text,

Reckless and irresponsible does not even begin to adequately describe the damage that Mr. Obama has done to the national security of this nation.

And there is a moment where Bart actually seems to approach--even if only at some remedial level--a measure of self-awareness:

Of course, this is just the view of one irascible former infantry grunt. I have a more calloused view of war and this nation's enemies than many of my colleagues in the legal profession.

I caught a rerun of Bill Moyers Journal featuring Mark Danner and Bruce Fein on the torture issue. It should be available via the Internet at the PBS website. Fein is an attorney with a Republican background, including service in the Justice Department/OLC. Danner of course had the recent New York Review of Books article on the Red Cross torture report that preceded Pres. Obama's release of certain OLC torture memos/opinions.

mesothelioma Mesotheliomais a form of cancer that is almost always caused by exposure to Asbestos In this disease, malignant cells develop in the mesothelium, a protective lining that covers most of the body's internal organs. Its most common site is the pleura (outer lining of the lungs and internal chest wall), but it may also occur in the peritoneum (the lining of the abdominal cavity), the heart the pericardium (a sac that surrounds the heart or tunica vaginalis.
Most people who develop
mesothelioma have worked on jobs where they inhaled asbestos particles, or they have been exposed to asbestos dust and fiber in other ways. Washing the clothes of a family member who worked with asbestos can also put a person at risk for developing Mesothelioma Unlike lung cancer, there is no association between mesothelioma and smoking but smoking greatly increases risk of other asbestos induced cancer.Compensation via
Asbestos funds or lawsuits is an important issue in
mesothelioma The symptoms of
mesothelioma include shortness of breath due to pleural effusion (fluid between the lung and the chest wall or chest wall pain, and general symptoms such as weight loss. The diagnosis may be suspected with chest X-ray and CT scan and is confirmed with a biopsy (tissue sample) and microscopic examination. A thoracoscopy inserting a tube with a camera into the chest) can be used to take biopsies. It allows the introduction of substances such as talc to obliterate the pleural space (called pleurodesis, which prevents more fluid from accumulating and pressing on the lung. Despite treatment with chemotherapy, radiation therapy or sometimes surgery, the disease carries a poor prognosis. Research about screening tests for the early detection of mesothelioma is ongoing.
Symptoms of mesothelioma may not appear until 20 to 50 years after exposure to asbestos. Shortness of breath, cough, and pain in the chest due to an accumulation of fluid in the pleural space are often symptoms of pleural
mesotheliomaSymptoms of peritoneal
mesothelioma include weight loss and cachexia, abdominal swelling and pain due to ascites (a buildup of fluid in the abdominal cavity). Other symptoms of peritoneal
mesothelioma may include bowel obstruction, blood clotting abnormalities, anemia, and fever. If the cancer has spread beyond the mesothelium to other parts of the body, symptoms may include pain, trouble swallowing, or swelling of the neck or face.
These symptoms may be caused by
mesothelioma or by other, less serious conditions.
Mesothelioma that affects the pleura can cause these signs and symptoms:
chest wall pain
pleural effusion, or fluid surrounding the lung
shortness of breath
fatigue or anemia
wheezing, hoarseness, or cough
blood in the sputum (fluid) coughed up hemoptysis
In severe cases, the person may have many tumor masses. The individual may develop a pneumothorax, or collapse of the lung The disease may metastasize, or spread, to other parts of the body.
Tumors that affect the abdominal cavity often do not cause symptoms until they are at a late stage. Symptoms include:
abdominal pain
ascites, or an abnormal buildup of fluid in the abdomen
a mass in the abdomen
problems with bowel function
weight loss
In severe cases of the disease, the following signs and symptoms may be present:
blood clots in the veins, which may cause thrombophlebitis
disseminated intravascular coagulation a disorder causing severe bleeding in many body organs
jaundice, or yellowing of the eyes and skin
low blood sugar level
pleural effusion
pulmonary emboli, or blood clots in the arteries of the lungs
severe ascites
mesothelioma does not usually spread to the bone, brain, or adrenal glands. Pleural tumors are usually found only on one side of the lungs
mesothelioma is often difficult, because the symptoms are similar to those of a number of other conditions. Diagnosis begins with a review of the patient's medical history. A history of exposure to asbestos may increase clinical suspicion for
mesothelioma A physical examination is performed, followed by chest X-ray and often lung function tests. The X-ray may reveal pleural thickening commonly seen after asbestos exposure and increases suspicion of
mesothelioma A CT (or CAT) scan or an MRI is usually performed. If a large amount of fluid is present, abnormal cells may be detected by cytology if this fluid is aspirated with a syringe. For pleural fluid this is done by a pleural tap or chest drain, in ascites with an paracentesis or ascitic drain and in a pericardial effusion with pericardiocentesis. While absence of malignant cells on cytology does not completely exclude
mesothelioma it makes it much more unlikely, especially if an alternative diagnosis can be made (e.g. tuberculosis, heart failure
If cytology is positive or a plaque is regarded as suspicious, a biopsy is needed to confirm a diagnosis of
mesothelioma A doctor removes a sample of tissue for examination under a microscope by a pathologist. A biopsy may be done in different ways, depending on where the abnormal area is located. If the cancer is in the chest, the doctor may perform a thoracoscopy. In this procedure, the doctor makes a small cut through the chest wall and puts a thin, lighted tube called a thoracoscope into the chest between two ribs. Thoracoscopy allows the doctor to look inside the chest and obtain tissue samples.
If the cancer is in the abdomen, the doctor may perform a laparoscopy. To obtain tissue for examination, the doctor makes a small incision in the abdomen and inserts a special instrument into the abdominal cavity. If these procedures do not yield enough tissue, more extensive diagnostic surgery may be necessary.
There is no universally agreed protocol for screening people who have been exposed to
asbestosScreening tests might diagnose mesothelioma earlier than conventional methods thus improving the survival prospects for patients. The serum osteopontin level might be useful in screening asbestos-exposed people for
mesotheliomaThe level of soluble mesothelin-related protein is elevated in the serum of about 75% of patients at diagnosis and it has been suggested that it may be useful for screening. Doctors have begun testing the Mesomark assay which measures levels of soluble mesothelin-related proteins (SMRPs) released by diseased mesothelioma cells
Although reported incidence rates have increased in the past 20 years, mesothelioma is still a relatively rare cancer. The incidence rate is approximately one per 1,000,000. The highest incidence is found in Britain, Australia and Belgium: 30 per 1,000,000 per year. For comparison, populations with high levels of smoking can have a lung cancer incidence of over 1,000 per 1,000,000. Incidence of malignant mesothelioma currently ranges from about 7 to 40 per 1,000,000 in industrialized Western nations, depending on the amount of asbestos exposure of the populations during the past several decades. It has been estimated that incidence may have peaked at 15 per 1,000,000 in the United States in 2004. Incidence is expected to continue increasing in other parts of the world. Mesothelioma occurs more often in men than in women and risk increases with age, but this disease can appear in either men or women at any age. Approximately one fifth to one third of all mesotheliomas are peritoneal.
Between 1940 and 1979, approximately 27.5 million people were occupationally exposed to asbestos in the United States.[ Between 1973 and 1984, there has been a threefold increase in the diagnosis of pleural mesothelioma in Caucasian males. From 1980 to the late 1990s, the death rate from mesothelioma in the USA increased from 2,000 per year to 3,000, with men four times more likely to acquire it than women. These rates may not be accurate, since it is possible that many cases of mesothelioma are misdiagnosed as adenocarcinoma of the lung, which is difficult to differentiate from mesothelioma.
Working with asbestos is the major risk factor for mesothelioma. A history of asbestos exposure exists in almost all cases. However, mesothelioma has been reported in some individuals without any known exposure to asbestos. In rare cases, mesothelioma has also been associated with irradiation, intrapleural thorium dioxide (Thorotrast), and inhalation of other fibrous silicates, such as erionite.
is the name of a group of minerals that occur naturally as masses of strong, flexible fibers that can be separated into thin threads and woven.
has been widely used in many industrial products, including cement, brake linings, roof shingles, flooring products, textiles, and insulation. If tiny asbestos particles float in the air, especially during the manufacturing process, they may be inhaled or swallowed, and can cause serious health problems. In addition to mesothelioma, exposure to asbestos increases the risk of lung cancer, asbestosis (a noncancerous, chronic lung ailment), and other cancers, such as those of the larynx and kidney.
The combination of smoking and
asbestos exposure significantly increases a person's risk of developing cancer of the airways (lung cancer bronchial carcinoma). The Kent brand of cigarettes used
mesothelioma in its filters for the first few years of production in the 1950s and some cases of
. have resulted. Smoking modern cigarettes does not appear to increase the risk of mesothelioma.
Some studies suggest that simian virus 40 may act as a cofactor in the development of mesothelioma.
Asbestos was known in antiquity, but it wasn't mined and widely used commercially until the late 1800s. Its use greatly increased during World War II Since the early 1940s, millions of American workers have been exposed to asbestos dust. Initially, the risks associated with
. exposure were not publicly known. However, an increased risk of developing mesothelioma was later found among shipyard workers, people who work in asbestos mines and mills, producers of asbestos products, workers in the heating and construction industries, and other tradespeople. Today, the U.S. Occupational Safety and Health Administration (OSHA) sets limits for acceptable levels of
. exposure in the workplace, and created guidelines for engineering controls and respirators, protective clothing, exposure monitoring, hygiene facilities and practices, warning signs, labeling, recordkeeping, and medical exams. By contrast, the British Government's Health and Safety Executive (HSE) states formally that any threshold for
mesothelioma must be at a very low level and it is widely agreed that if any such threshold does exist at all, then it cannot currently be quantified. For practical purposes, therefore, HSE does not assume that any such threshold exists. People who work with
asbestos wear personal protective equipment to lower their risk of exposure. Recent findings have shown that a mineral called erionite has been known to cause genetically pre-dispositioned individuals to have malignant mesothelioma rates much higher than those not pre-dispositioned genetically. A study in Cappadocia, Turkey has shown that 3 villiages in Turkey have death rates of 51% attributed to erionite related
mesotheliomaExposure to
asbestos fibres has been recognised as an occupational health hazard since the early 1900s. Several epidemiological studies have associated exposure to asbestos with the development of lesions such as asbestos bodies in the sputum, pleural plaques, diffuse pleural thickening, asbestosis, carcinoma of the lung and larynx, gastrointestinal tumours, and diffuse mesothelioma of the pleura and peritoneum.
The documented presence of
asbestos fibres in water supplies and food products has fostered concerns about the possible impact of long-term and, as yet, unknown exposure of the general population to these fibres. Although many authorities consider brief or transient exposure to
asbestos fibres as inconsequential and an unlikely risk factor, some epidemiologists claim that there is no risk threshold. Cases of mesothelioma have been found in people whose only exposure was breathing the air through ventilation systems. Other cases had very minimal (3 months or less) direct exposure.
asbestos mining at Wittenoom, Western Australia, occurred between 1945 and 1966. A cohort study of miners employed at the mine reported that while no deaths occurred within the first 10 years after crocidolite exposure, 85 deaths attributable to mesothelioma had occurred by 1985. By 1994, 539 reported deaths due to mesothelioma had been reported in Western Australia.
Family members and others living with
asbestos workers have an increased risk of developing
mesothelioma and possibly other asbestos related diseases. This risk may be the result of exposure to
asbestos dust brought home on the clothing and hair of
asbestos workers. To reduce the chance of exposing family members to asbestosMany building materials used in both public and domestic premises prior to the banning of
asbestos may contain
asbestos Those performing renovation works or activities may expose themselves to asbestos dust. In the UK use of Chrysotile asbestos was banned at the end of 1999. Brown and blue
asbestos was banned in the UK around 1985. Buildings built or renovated prior to these dates may contain asbestos materials.
For patients with localized disease, and who can tolerate a radical surgery, radiation is often given post-operatively as a consolidative treatment. The entire hemi-thorax is treated with radiation therapy, often given simultaneously with chemotherapy. Delivering radiation and chemotherapy after a radical surgery has led to extended life expectancy in selected patient populations with some patients surviving more than 5 years. As part of a curative approach to
mesothelioma radiotherapy is also commonly applied to the sites of chest drain insertion, in order to prevent growth of the tumor along the track in the chest wall.
mesothelioma is generally resistant to curative treatment with radiotherapy alone, palliative treatment regimens are sometimes used to relieve symptoms arising from tumor growth, such as obstruction of a major blood vessel.
Radiation Therapy when given alone with curative intent has never been shown to improve survival from
mesothelioma The necessary radiation dose to treat mesothelioma that has not been surgically removed would be very toxic.
Chemotherapy is the only treatment for
mesothelioma that has been proven to improve survival in randomised and controlled trials. The landmark study published in 2003 by Vogelzang and colleagues compared cisplatin chemotherapy alone with a combination of cisplatin and pemetrexed (brand name Alimta) chemotherapy) in patients who had not received chemotherapy for malignant pleural mesothelioma previously and were not candidates for more aggressive "curative" surgery. This trial was the first to report a survival advantage from chemotherapy in malignant pleural
mesothelioma showing a statistically significant improvement in median survival from 10 months in the patients treated with cisplatin alone to 13.3 months in the combination pemetrexed group in patients who received supplementation with folate and vitamin B12. Vitamin supplementation was given to most patients in the trial and pemetrexed related side effects were significantly less in patients receiving pemetrexed when they also received daily oral folate 500mcg and intramuscular vitamin B12 1000mcg every 9 weeks compared with patients receiving pemetrexed without vitamin supplementation. The objective response rate increased from 20% in the cisplatin group to 46% in the combination pemetrexed group. Some side effects such as nausea and vomiting, stomatitis, and diarrhoea were more common in the combination pemetrexed group but only affected a minority of patients and overall the combination of pemetrexed and cisplatin was well tolerated when patients received vitamin supplementation; both quality of life and lung function tests improved in the combination pemetrexed group. In February 2004, the United States Food and Drug Administration approved pemetrexed for treatment of malignant pleural mesothelioma. However, there are still unanswered questions about the optimal use of chemotherapy, including when to start treatment, and the optimal number of cycles to give.
Cisplatin in combination with raltitrexed has shown an improvement in survival similar to that reported for pemetrexed in combination with cisplatin, but raltitrexed is no longer commercially available for this indication. For patients unable to tolerate pemetrexed, cisplatin in combination with gemcitabine or vinorelbine is an alternative, although a survival benefit has not been shown for these drugs. For patients in whom cisplatin cannot be used, carboplatin can be substituted but non-randomised data have shown lower response rates and high rates of haematological toxicity for carboplatin-based combinations, albeit with similar survival figures to patients receiving cisplatin.
In January 2009, the United States FDA approved using conventional therapies such as surgery in combination with radiation and or chemotherapy on stage I or II Mesothelioma after research conducted by a nationwide study by Duke University concluded an almost 50 point increase in remission rates.
Treatment regimens involving immunotherapy have yielded variable results. For example, intrapleural inoculation of Bacillus Calmette-Guérin (BCG) in an attempt to boost the immune response, was found to be of no benefit to the patient (while it may benefit patients with bladder cancer.
mesothelioma cells proved susceptible to in vitro lysis by LAK cells following activation by interleukin-2 (IL-2), but patients undergoing this particular therapy experienced major side effects. Indeed, this trial was suspended in view of the unacceptably high levels of IL-2 toxicity and the severity of side effects such as fever and cachexia. Nonetheless, other trials involving interferon alpha have proved more encouraging with 20% of patients experiencing a greater than 50% reduction in tumor mass combined with minimal side effects.
A procedure known as heated intraoperative intraperitoneal chemotherapy was developed by at the Washington Cancer Institute. The surgeon removes as much of the tumor as possible followed by the direct administration of a chemotherapy agent, heated to between 40 and 48°C, in the abdomen. The fluid is perfused for 60 to 120 minutes and then drained.
This technique permits the administration of high concentrations of selected drugs into the abdominal and pelvic surfaces. Heating the chemotherapy treatment increases the penetration of the drugs into tissues. Also, heating itself damages the malignant cells more than the normal cells.

What is the mesothelium?
The mesothelium is a membrane that covers and protects most of the internal organs of the body. It is composed of two layers of cells: One layer immediately surrounds the organ; the other forms a sac around it. The mesothelium produces a lubricating fluid that is released between these layers, allowing moving organs (such as the beating heart and the expanding and contracting lungs to glide easily against adjacent structures.
The mesothelium has different names, depending on its location in the body. The peritoneum is the mesothelial tissue that covers most of the organs in the abdominal cavity. The pleura is the membrane that surrounds the lungs and lines the wall of the chest cavity. The pericardium covers and protects the heart. The
mesothelioma tissue surrounding the male internal reproductive organs is called the tunica vaginalis testis. The tunica serosa uteri covers the internal reproductive organs in women.
What is mesothelioma?
mesothelioma (cancer of the mesothelium) is a disease in which cells of the mesothelium become abnormal and divide without control or order. They can invade and damage nearby tissues and organs.
cancer cells can also metastasize (spread) from their original site to other parts of the body. Most cases of mesothelioma begin in the pleura or peritoneum.
How common is mesothelioma?
Although reported incidence rates have increased in the past 20 years, mesothelioma is still a relatively rare cancer. About 2,000 new cases of mesothelioma are diagnosed in the United States each year. Mesothelioma occurs more often in men than in women and risk increases with age, but this disease can appear in either men or women at any age.
What are the risk factors for mesothelioma?
Working with asbestos is the major risk factor for mesothelioma. A history of . exposure at work is reported in about 70 percent to 80 percent of all cases. However, mesothelioma has been reported in some individuals without any known exposure to
Asbestos is the name of a group of minerals that occur naturally as masses of strong, flexible fibers that can be separated into thin threads and woven. . has been widely used in many industrial products, including cement, brake linings, roof shingles, flooring products, textiles, and insulation. If tiny asbestos particles float in the air, especially during the manufacturing process, they may be inhaled or swallowed, and can cause serious health problems. In addition to mesothelioma, exposure to asbestos increases the risk of lung cancer, asbestosis (a noncancerous, chronic lung ailment), and other cancers, such as those of the larynx and kidney.
Smoking does not appear to increase the risk of mesothelioma. However, the combination of smoking and asbestos exposure significantly increases a person's risk of developing cancer of the air passageways in the lung.
Who is at increased risk for developing mesothelioma?
asbestos has been mined and used commercially since the late 1800s. Its use greatly increased during World War II. Since the early 1940s, millions of American workers have been exposed to asbestos dust. Initially, the risks associated with asbestos exposure were not known. However, an increased risk of developing mesothelioma was later found among shipyard workers, people who work in asbestos. Today, the U.S. Occupational Safety and Health Administration (OSHA) sets limits for acceptable levels of asbestos exposure in the workplace. People who work with asbestos wear personal protective equipment to lower their risk of exposure.
The risk o f asbestosrelated disease increases with heavier exposure to asbestos and longer exposure time. However, some individuals with only brief exposures have developed mesothelioma On the other hand, not all workers who are heavily exposed develop asbestos-related diseases.
There is some evidence that family members and others living with asbestos workers have an increased risk of developing mesothelioma, and possibly other asbestos-related diseases. This risk may be the result of exposure to
asbestos dust brought home on the clothing and hair of
asbestos workers. To reduce the chance of exposing family members to
asbestos fibers, asbestos workers are usually required to shower and change their clothing before leaving the workplace.
What are the symptoms of mesothelioma?
Symptoms of mesothelioma may not appear until 30 to 50 years after exposure to
asbestos Shortness of breath and pain in the chest due to an accumulation of fluid in the pleura are often symptoms of pleural mesothelioma. Symptoms of peritoneal mesothelioma include weight loss and abdominal pain and swelling due to a buildup of fluid in the abdomen. Other symptoms of peritoneal mesothelioma may include bowel obstruction blood clotting abnormalities, anemia, and fever. If the cancer has spread beyond the mesothelium to other parts of the body, symptoms may include pain, trouble swallowing, or swelling of the neck or face.
These symptoms may be caused by
mesothelioma or by other, less serious conditions. It is important to see a doctor about any of these symptoms. Only a doctor can make a diagnosis
How is
Diagnosing mesothelioma is often difficult, because the symptoms are similar to those of a number of other conditions. Diagnosis begins with a review of the patient's medical history, including any history of asbestos exposure. A complete physical examination may be performed, including x-rays of the chest or abdomen and lung function tests. A CT (or CAT) scan or an MRI may also be useful. A CT scan is a series of detailed pictures of areas inside the body created by a computer linked to an x-ray machine. In an MRI, a powerful magnet linked to a computer is used to make detailed pictures of areas inside the body. These pictures are viewed on a monitor and can also be printed.
A biopsy is needed to confirm a diagnosis of mesothelioma. In a biopsy, a surgeon or a medical oncologist (a doctor who specializes in diagnosing and treating cancer) removes a sample of tissue for examination under a microscope by a pathologist. A biopsy may be done in different ways, depending on where the abnormal area is located. If the
cancer is in the chest, the doctor may perform a thoracoscopy. In this procedure, the doctor makes a small cut through the chest wall and puts a thin, lighted tube called a thoracoscope into the chest between two ribs. Thoracoscopy allows the doctor to look inside the chest and obtain tissue samples. If the
cancer is in the abdomen, the doctor may perform a peritoneoscopy. To obtain tissue for examination, the doctor makes a small opening in the abdomen and inserts a special instrument called a peritoneoscope into the abdominal cavity. If these procedures do not yield enough tissue, more extensive diagnostic surgery may be necessary.
If the diagnosis is mesothelioma, the doctor will want to learn the stage (or extent) of the disease. Staging involves more tests in a careful attempt to find out whether the cancer has spread and, if so, to which parts of the body. Knowing the stage of the disease helps the doctor plan treatment.
Mesothelioma is described as localized if the cancer is found only on the membrane surface where it originated. It is classified as advanced if it has spread beyond the original membrane surface to other parts of the body, such as the lymph nodes, lungs, chest wall, or abdominal organs.
How is
Treatment for mesothelioma depends on the location of the
cancerthe stage of the disease, and the patient's age and general health. Standard treatment options include surgery, radiation therapy, and chemotherapy. Sometimes, these treatments are combined.
Surgery is a common treatment for
mesotheliomaThe doctor may remove part of the lining of the chest or abdomen and some of the tissue around it. For cancer of the pleura (pleural
mesotheliomaa lung may be removed in an operation called a pneumonectomy. Sometimes part of the diaphragm, the muscle below the lungs that helps with breathing, is also removed.
Stereo Tactic Radiation Therapy also called radiotherapy, involves the use of high-energy rays to kill
cancercells and shrink tumors Radiation therapy affects the
cancercells only in the treated area. The radiation may come from a machine (external radiation) or from putting materials that produce radiation through thin plastic tubes into the area where the
cancercells are found (internal radiation therapy).
Chemotherapy is the use of anticancer drugs to kill cancer cells throughout the body. Most drugs used to treat
mesotheliomaare given by injection into a vein (intravenous, or IV). Doctors are also studying the effectiveness of putting chemotherapy directly into the chest or abdomen (intracavitary chemotherapy).
To relieve symptoms and control pain, the doctor may use a needle or a thin tube to drain fluid that has built up in the chest or abdomen. The procedure for removing fluid from the chest is called thoracentesis. Removal of fluid from the abdomen is called paracentesis. Drugs may be given through a tube in the chest to prevent more fluid from accumulating. Radiation Therapy and surgery may also be helpful in relieving symptoms.

"Da Man" makes more sense than today's libs.

Too bad that Supreme Court Justices Stevens and Ginsburg didn't take Jack Balkin's advice and retire back when George W. Bush was President.

If anyone else wants to discuss Jack Balkin's threads:

Here's a sample of the commentary so far:

Brett said...
Until he got to the bit about it not applying to existing Justices, I figured it was just another court packing scheme. But even if it isn't, I will maintain it requires an amendment to accomplish it legitimately,

I don't know why he bothers to pretend to be an originalist, when he's got so little use for actually amending the Constitution when he wants to change anything.

12:00 PM

Jkat said...
i've gone on strike .. if comments at balkinization are off on a topic .. i just don't read that topic ..

why put an opinion piece out for a drive around the block and then not allow comments in the first place ..

vanity press ??

the comments section may get trashed from time to time .. but there are ALWAYS good posts within the thread .. it's a shame to have to use the old cliche about "throwing the baby out with the bathwater" .. but there ya are ..

6:11 PM

Brett said...
Yeah, pretty much vanity press; It's supposed to be a one way flow of information from Balkin to us.

Apparently he thought comments were all well and good as long as it constituted nothing but a cheering section, but didn't like having it pointed out when he was full of it.

4:32 AM

Charles said...
Good points. For the record, I will never delete comments or prevent people from posting. I am curious why Professor Balkin even posts new threads with questions like "Does OLC sound a little like the Supreme Court?" Lack of irony, I guess.

10:03 AM

Gene Fidell's post today arguing that CIA interrogation of KSM & Co will lead to the kidnapping and torture of civilians and the military by al Qaeda is beneath contempt.

Has Fidell been hiding under a rock for the past 20 years when al Qaeda was beheading or otherwise torturing to death our citizens - civilians and military alike?

The CIA agents who broke KSM & Co. and rolled up much of al Qaeda prevented far more al Qaeda barbarity than we have already suffered.

If anyone seriously thinks that he or she can expect mercy if captured by al Qaeda by calling for the criminal prosecution of those who broke KSM & Co., I invite them to go visit the Swat province of Pakistan or Somalia and put this theory to the test. When they appear on an al Qaeda video screaming as some al Qaeda barbarian saws off their head, it will give a new meaning to the old Soviet term of derision - useful fool.

Will someone please explain to an old
fella who is a little past his prime the meaning
of the phrases "take out" and " roll up" as
used in this comments section?


In macho military-man speak,

"Take out" -- obliterate, preferably using one of the AGM-XXX series precision guided weapons. Bonus points if there's video of the resulting explosion.

"Roll up" -- to take out (see above), one by one, the various components of the opposing force. (As in to "roll up" like a ball of twine.)

Examples: Al Qaeda in Iraq was rolled up using standard interrogation techniques, as has been explained by the operative who worked with a captured AQI member, who gave up the name of AQI's leader's "spiritual advisor". The leader was then taken out (as above.)

Before this thread descends into a festschrift of irrelevancy, with Bart and Charles competing with Da Man's spam, I return to the issue of the OLC Memoranda and just how the opinions given came to be as deficient as they plainly are.

Shag from Brookline has drawn attention to an article on FindLaw's Writ Q & A Session on Bad Advice: Bush's Lawyers In The War On Terror - essentially an interview by John Dean of Professor Harold Bruff of the University of Colorado (and Senior Attorney in the OLC 1979-81) published on 1st May 2009.

On 3rd May 2009, the NYT published this article on the internal divisions within the Bush White House Interrogation Debate Sharply Divided Bush White House.

To my way of thinking, the key is the immediate aftermath of 9-11. That is when the initial mistakes were made. It can moreover be posited that the OLC mistakes were inevitable, given the fact of the Bush Presidency and the way his Administration was staffed during the transition.

Thereafter, there has, inevitably, been a cover-up.

A Fairy TaleOn 2nd August 2005, Professor Juan Cole wrote about the origins of the Administration's Global War on Terror in a post entitled "Fisking the War on Terror". It can be found someway down the Archive page for August 2005 Informed Comment blog"Once upon a time, a dangerous radical gained control of the US Republican Party. Reagan increased the budget for support of the radical Muslim Mujahidin conducting terrorism against the Afghanistan government to half a billion dollars a year. One fifth of the money, which the CIA mostly turned over to Pakistani military intelligence to distribute, went to Gulbuddin
Hikmatyar, a violent extremist who as a youth used to throw acid on the faces of unveiled girls in Afghanistan.

Not content with creating a vast terrorist network to harass the Soviets, Reagan then pressured the late King Fahd of Saudi Arabia to match US contributions. He had earlier imposed on Fahd to give money to the Contras in Nicaragua, some of which was used to create rightwing death squads. (Reagan liked to sidestep Congress in creating private terrorist organizations for his foreign policy purposes, which he branded "freedom fighters," giving terrorists the idea that it was all right to inflict vast damage on civilians in order to achieve their goals). Fahd was a timid man and resisted Reagan's instructions briefly, but finally gave in to enormous US pressure.

Fahd not only put Saudi government money into the Afghan Mujahideen networks, which trained them in bomb making and guerrilla tactics, but he also instructed the Minister of Intelligence, Turki al-Faisal, to try to raise money from private sources. Turki al-Faisal checked around and discovered that a young member of the fabulously wealthy Bin Laden construction dynasty, Usama, was committed to Islamic causes. Turki thus gave Usama the task of raising money from Gulf millionaires for the Afghan struggle. This whole effort was undertaken, remember, on Reagan Administration instructions.

Bin Laden not only raised millions for the effort, but helped encourage Arab volunteers to go fight for Reagan against the Soviets and the Afghan communists. The Arab volunteers included
people like Ayman al-Zawahiri, a young physician who had been jailed for having been involved in the assassination of Egyptian president Anwar El-Sadat. Bin Laden kept a database of
these volunteers. In Arabic the word for base is al-Qaeda

In the US, the Christian Right adopted the Mujahideen as their favorite project. They even sent around a "biblical checklist" for grading US congressman as to how close they were to the "Christian" political line. If a congressman didn't support the radical Muslim Muj, he or she was downgraded by the evangelicals and fundamentalists.

Reagan wanted to give more and more sophisticated weapons to the Mujahideen ("freedom fighters"). The Pakistani generals were forming an alliance with the fundamentalist Jamaat-i Islam
and begining to support madrasahs or hardline seminaries that would teach Islamic extremism. But even they balked at giving the ragtag Muj really advanced weaponry. Pakistan had a close alliance with China, and took advice from Beijing.

In 1985 Reagan sent Senator Orrin Hatch, Undersecretary of Defense Fred Iklé and others to Beijing to ask China to put pressure on Pakistan to allow the US to give the Muslim radicals, such as Hikmatyar, more sophisticated weapons. Hatch succeeded in this mission. By giving the Muj weaponry like the stinger shoulderheld missile, which could destroy advanced Soviet arms like their helicopter gunships, Reagan demonstrated to the radical Muslims that they could defeat a super power.

Reagan also decided to build up Saddam Hussein in Iraq as a counterweight to Khomeinist Iran, authorizing US and Western companies to send him precursors for chemical and biological
weaponry. At one point Donald Rumsfeld was sent to Iraq to assure Saddam that it was all right if he used chemical weapons against the Iranians. Reagan had no taste in friends.

On becoming president, George H. W. Bush made a deal with the Soviets that he would cut the Mujahideen off if the Soviets would leave Afghanistan. The last Soviet troops departed in early 1989. The US then turned its back on Afghanistan and allowed it to fall into civil war, as the radical Muslim factions fostered by Washington and Riyadh turned against one another and used their extensive weaponry on each other and on civilians.

In the meantime, Saddam, whom the US had built up as a major military power, invaded Kuwait. The Bush senior administration now had to take on its former protege, and put hundreds of thousands of US troops into the Gulf and Saudi Arabia. The radical Muslim extremists with whom Reagan and Bush had allied in Afghanistan now turned on the US, objecting strenuously to a permanent US military presence in the Muslim holy land.

From 1994 Afghanistan was increasingly dominated by a faction of Mujahideen known as Taliban or seminary students (who were backed by Pakistani military intelligence, which learned the
trick from Reagan and which were flush from all those billions the Reagan administration had funneled into the region). In 1996 Bin Laden came back and reestablished himself there, becoming the leader of 5,000 radical Arab volunteers that Reagan had urged Fahd to help come to Afghanistan back in the 1980s.

In the meantime, the US had steadfastly supported Israeli encroachments on the Palestinian Occupied Territories and the gradual complete annexation of Jerusalem, the third holiest city to Muslims. Since the outbreak of the first intifada, Israeli troops had riposted with brutality. Even after the Oslo accords were signed, the size of Israeli colonies in the Palestinian West Bank and around Jerusalem doubled.

A steady drumbeat of violence against Palestinians by Israelis, who were stealing their land and clearly intended to monopolize their sacred space, enraged the Muslim radicals that had been
built up and coddled by Reagan. In 1998, al-Qaeda and al-Jihad al-Islami, two small terrorist groups established in Afghanistan as a result of the Reagan jihad, declared war on the United
States and Israel (the "Zionists and Crusaders"). After attacks by al-Qaeda cells on US embassies in East Africa and on the USS Cole, nineteen of them ultimately used jet planes to attack the Twin Towers and the Pentagon.

The Bush administration responded to these attacks by the former proteges of Ronald Reagan by putting the old Mujahideen warlords back in charge of Afghanistan's provinces, allowing Bin Laden and al-Zawahiri to escape, declaring that Americans no longer needed a Bill of Rights, and suddenly invading another old Reagan protege, Saddam's Iraq, which had had nothing to do
with 9/11 and posed no threat to the US. The name given this bizarre set of actions by Bush was "the War on Terror."

In Iraq, the US committed many atrocities, including bombing campaigns on civilian quarters of cities it had already occupied, and a ferocious assault on Fallujah, and tortured Iraqi prisoners.

In the meantime, the Bush administration put virtually no money or effort into actually combatting terrorist cells in places like Morocco, as opposed to putting $200 billion into the Iraq war and aftermath. As a result, a string of terrorist attacks were allowed to strike at Madrid, London and elsewhere.

Fred Ikle, who had been part of the Reaganist/Chinese Communist effort to convince Muslim fundamentalist generals in Pakistan--against their better judgment-- to allow the US to give the radical Muslim extremists even more sophisticated weapons, wrote an op-ed for the Wall Street Journal urging the nuking of Mecca.

Then in July, 2005, General Richard Myers, the Chairman of the Joint Chiefs of Staff, announced that there was not actually any "War on Terror:" ' General Richard Myers, chairman of the Joint Chiefs of Staff, told the National Press Club on Monday that he had "objected to the use of the term 'war on terrorism' before, because if you call it a war, then you think of people in uniform as being the solution." ' (Question: Does this mean we can have the Bill of Rights back, now?)

The American Right, having created the Mujahideen and having mightily contributed to the creation of al-Qaeda, abruptly announced that there was something deeply wrong with Islam, that it kept producing terrorists."
It may be thought that this is just that - a fairy tale. How could the United States of America, the country which has been the leader of the free world since 1945 and which has the biggest government machine with the most sophisticated intelligence gathering and analysis apparatus known to mankind, possibly have been so inept?

The first part of the answer is that Professor Cole's pottted history is absolutely no fairy tale. However, as I wrote in a previous post, there is evidence that the initial decision to provoke the Soviets into invading Afghanistan and to fund the Mujahiddin was taken, not by President Reagan, but by Carter's National Security Adviser, Zbigniew Brzezinski who boasted of the decision in a newspaper interview which contained the memorable line: What is most important to the history of the world? The Taliban or the collapse of the Soviet empire? Some stirred-up Moslems or the liberation of Central Europe and the end of the cold war?.

The second part of the answer comes from the way the Bush transition was managed.

The Cheney-Rumsfeld AxisDuring the Bush first presidential election campaign, it had been noted that Governor Bush did not know the name of General Pervez Musharraf who had staged a military coup in Pakistan, nor the name of the Indian Prime Minister. He thought Greece was inhabited by "Grecians". The kindest remark during the campaign was that Governor Bush was "not strong" on foreign affairs and took his foreign policy mainly from the novels of Tom Clancy. Others said that Governor Bush's Attention Deficit Disorder had prevented him from finishing any of the Clancy novels.

The precursor of the troubles to come at the OLC was when the President-elect (or President-select in the view of some) selected his future Vice President, Dick Cheney, to head his transition team.

Cheney used the transition to staff the administration, not with the main-stream Republican foreign policy veterans of the Bush Senior administration such as Baker, Scowcroft and Eagleburger, but with Cheney's soulmates from the Reagan and Ford administrations and particularly with hard right Neoconservative ideologues from the Project for the New American Century camp. There was a striking parallel between the Bush Administration's foreign affairs power structure and the regime Rumsfeld and Cheney had effectively controlled nearly 30 years previously under the Ford Administration ("the Rumsfeld/Cheney Axis").

(Gerald Ford had also in the kindest possible sense been seen as "weak on foreign and national security issues". Rumsfeld and Cheney took control of his Administration's foreign affairs, in part by marginalising a high-profile secretary of state seen as too moderate. The Axis, reborn as Cheney/Rumsfeld, were to employ the same techniques with General Colin Powell.)

Thus it was that the the team which played such a large part in creating the terrorism problem during the Reagan Administration was largely the same team which under Bush brought us "The Global 'War' on Terror" and "The Enterprise of Iraq" including: Elliott Abrams - Assistant Secretary of State (Reagan) - NSC Director (Bush) - Richard Armitage - Assistant Secretary of Defense (Reagan) - Deputy Secretary of State (Bush); John Bolton - Assistant Secretary of State (Reagan) - Under Secretary of State (Bush) - Douglas Feith - Deputy Assistant Secretary of Defense (Reagan) - Under Secretary of Defense (Bush) - Lewis Libby - Deputy Undersecretary of Defence (Reagan) - Chief of Staff to VP Cheney (Bush) - Richard Perle - Assistant Secretary of Defence (Reagan) - Chairman Defence Policy Board (Bush) - Donald Rumsfeld - US Envoy to the Middle East (Reagan) - Secretary of Defence (Bush) - Paul Wolfowitz - US Ambassador (State Dept) (Reagan) - Deputy Secretary of Defence (Bush).

On 26th January 1998, 18 well-known Neoconservatives of the Project for the New American Century had sent an open letter to then President Clinton calling for use of military force against Iraq. Stephen Cambone (Bush's Under Secretary for Defence Intelligence) was on the project team which produced the PNAC Defence strategy paper. Signatories to the PNAC letter included Donald Rumsfeld, Paul Wolfowitz, Richard Armitage, John Bolton, Dov Zakheim (Bush's
Under-Secretary of Defence and Comptroller) and Richard Perle.

Another warning sign was the return to power of the Reagan Iran-contra spooks: Elliott Abrahams - Otto Reich and John Poindexter.

Part of the unspoken agenda of the Cheney/Rumsfeld Axis was the PNAC plan for regime change in Iraq and the last thing the Axis leaders wanted was competent lawyers messing up their pet project with objections to an invasion, or worrying the President with any legal niceties of the laws of war. Cheney wanted a team of "yes men" at Justice and in particular at the OLC.

John Ashcroft was appointed Bush's AG. But although he had a JD from a respectable university, he had taught only briefly, and that was business law. He had gone into Missouri state politics and was hired as an assistant state AG. He had later had two terms as State Attorney-General and then two terms as Missouri's governor before running successfully for the US Senate.

Then during his 2000 re-election campaign, his opponent died in a plane crash. Ashcroft suspended his campaign. His deceased opponent was elected and his widow was appointed to fill the vacancy. The former Senator for Missouri was without elected office for the first time since 1980. But his background was political rather than legal. He had no experience at the Federal level and no international experience, so he would rely heavily on his staff. He was a member of the Christian Right. He could be expected to be duly grateful for his appointment.

Nevertheless, while he was in office there was the notorious hospital episode on the illegal surveillance. There were plainly those in the Bush Administration who considered he could be bullied. Yet AG Aschroft comes across as more principled than many of the other persons with law degrees in the whole sorry saga of the Administration.

But his OLC, "the Attorney-General's lawyers" - there to give him (and via him the whole administration, sound legal advice), had been carefully stuffed by the transition with the likes of John Yoo - people with a track record of extremely expansive views on presidential power or otherwise malleable.

Thus the Bush Administration generally was stuffed with Neoconservatives with a nasty power complex and a distinct lack of principles and the Administration's nominal chief legal eagles, the Attorney-General and the OLC were distinctly second rate. And, incidentally, they were far less dynamic than the lawyers Cheney had carefully placed in other Administration slots - including within his own office.

And to make matters worse, Bush had brought with him from Texas as his White House Counsel, his long standing legal yes-man, Alberto Gonzalez.

11th September 2001Just as the Europeans were beginning to realise that they were inevitably going to go through a difficult time with the Bush Administration, tragedy struck the United States of America. There was an enormous worldwide outpouring of sympathy throughout Europe for the people of the United States of America as the events of 11th September 2001 unfolded - and it was not just
because many other nations lost a number of their own nationals in the destruction of the Wold Trade Center. As the pictures of the time show, the sorrow was not just official: the flowers massed outside the US Embassy, the huge crowds who filled the streets to pay their respects while the nation's official mourning took place in St Paul's Cathedral, all testified to a very deep feeling of solidarity in the United Kingdom. Similar feelings were manifested throughout Europe. Given that the French view of subsequent events was so widely excoriated by many Bush Administration shills, it is worth recording at article by Jean-Marie Columbiani in Le Monde in November 2001 which is translated on World Press Review We Are All Americans.

There were a number of duties for the Bush Administration in the aftermath of 9-11:

(1) The tragedy of 11th September 2001 was a criminal act and there is no doubt whatsoever that it was the duty of the Federal Government to seek out the perpetrators and bring them to justice. The actual hijackers had, of course, died. But there were those who had aided, counselled or procured the atrocity. It was particularly important that the other conspirators be brought to justice and put on trial within a due legal process either within the USA or elsehere. To that end, the US government was entitled to expect and demand co-operation from governments and law enforcement agencies around the world.

(2) But it was also vitally important that the agencies of the US Government themselves should keep within the bounds of international law. Any perception of the USA acting unlawfully and/or outside international law would only serve to heighten the motivations of the terrorists and support for terrorist activity.

But the 9-11 tragedy, was so shocking, that it is also understandable that the need for international inquiries, long winded criminal investigations and prosecutions was not what the American people wanted to hear. They wanted "Delenda est Carthago" parodied by Bob Wallace in his inimitable Kill 'Em All and Let God Sort Them Out.

So Bush gave the American people what they did apparently want to hear in his address to a joint session of the United States Congress on 20th September 2001 - the Global War on Terrorism.

Just 5 days later, on 25th September 2001, comes the 1st Yoo Memorandum The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them.

Given the nature of the emergency, the horror of 9-11 and the understandable "Delenda est Carthago" mentality of so many, this was perhaps the time when the Administration had most need of strong legal advice - especially as to the constraints on executive action in both national and international law. The Administration needed to know, not just what it should do, but also what it ought not to do.In the Findlaw discussion, Dean and Professor Bruff discuss the period immediately post-9-11 - where the legal issues are handled by the White House War Council: "made up of White House Counsel Alberto Gonzales and his deputy Tim Flanigan, Dick Cheney's counsel, David Addington, Defense Department General Counsel Jim Haynes, and John Yoo from OLC..

Professor Bruff concludes:-

(i) "The War Council's role is revealed by its name. It never showed any detachment from the policy goals of its clients. It became an advocate for any theory of law, no matter how implausible, that would allow what the administration wanted to do, for example harsh interrogation. It is clear that this attitude resulted from fear of another terrorist attack and the resulting pressure that was felt throughout the administration to do anything that might prevent one. The bad advice did not result from bad or evil intentions. Instead, these were patriotic lawyers striving in good faith to help win the terror war. But they lost sight of the essential nature of the lawyer's role. Another reason the War Council became so extreme was that it short-circuited normal bureaucratic checks that subject proposed legal advice to review by senior officials, such as the Attorney General, who can be expected to display good judgment. Instead, a group of junior lawyers, headed by a White House Counsel who was new to these issues, formed advice in a hothouse environment that excluded external influences";

(ii)"John Yoo has held his extreme theories of executive power since he was a law professor before joining OLC, and has never recanted. Comparison of his OLC memos with the position he took in his academic book, The Powers of War and Peace (which summarizes his earlier articles) and his revealingly titled memoir, War by Other Means, shows complete
consistency of viewpoint. What he did not reveal to his government clients, however, is that his positions enjoy little support from other scholars, and that there is a great weight of authority against them. Within OLC, Yoo seems to have received little supervision from Jay Bybee, his nominal superior. Yoo had been working at OLC for months when Bybee arrived, and had already written some important memos. Although some memos show editing that was presumably from Bybee, John Yoo's influence remained dominant throughout his time at OLC."
(iii)"Government lawyers who knew the advice was bad resisted as best they could. Uniformed lawyers in the military were especially brave and forthright in their resistance. The War Council either excluded them or teamrolled them. It got the power to do so from the support of Vice President Cheney.";

(iv)"The recently-disclosed memos suggest that the lawyers were accomplices in actions that they knew were illegal."(v)"Much legal advice to Presidents occurs under severe time pressure that limits the opportunity to provide thorough legal analysis. For many of the issues, there are few clear precedents to guide the lawyers. Also, the lawyers know that they will be judged with all the unfairness of hindsight. Therefore, it would be easy to make the President's lawyers too cautious for the good of the nation when they are asked to give advice under great pressure of time and uncertainty. Nevertheless, when prosecutors decide whether to charge anyone, they should consider the serious risks that criminal liability would deter desirable behavior in the future."I am still of the view that the Obama Administration intends to make haste slowly and see what impact results from further disclosures about what really happened to persons taken into US custody in various parts of the world. It appears that many, many more photographs are to be disclosed by the Pentagon. More papers too will arrive in the public domain - I remember that the records which eventually did for Maurice Papon had been around all the time between 1942 and 1981.

I'm all for proper investigation, because that is what the CAT requires.

I'm against scapegoating and fear it may already have happened with some of the Abu Ghraib prosecutions - while "I was only obeying orders" is not a defence, it can be mitigation and I believe the prosecution failed to disclose to the Courts-Martial all the material which ought to have gone before the military jury - fairness demanded no less.

As anticipated, each day brings more revelations.

Professor Philip Zelikow published this on History News Network 11 months ago Legal Policy for a Twilight War.

As Executive Director of the 9-11 Commission and a former Counsellor to Ms Rice at the State Dept, he was privy to a lot of hitherto classified information. Now that further hitherto classified material has been declassified and put in the public domain, he is able to go further and does so in this post: The OLC "torture memos": thoughts from a dissenter.

The House Judiciary Committee wants the Zelikov Memorandum and his testimony.

Note - since the CIA directives required "medical and psychological professionals" to monitor and keep records - one may expect those records to become germane. No wonder the videotapes have been cremated or whatever.

Then there are the nagging Saudi connections with the Bush clan and the special air flight arrangements made shortly after 9/11 to permit Saudi relatives of Osama bin Laden in the U.S. to leave. To repeat my comment leading this thread:

"Those opposed to such an investigation are in effect advocating:


I just spotted this OpEd at the NYTimes today:

"Bailout Justice
The government must hold accountable any individuals who acted illegally in this financial meltdown, while preserving the viability of the companies that received bailout funds or stimulus money."

I wonder how Bush's first AG feels about accountability on the torture issue. Or is he merely trying to drum up bailout business for his new law firm?

And check out Dan Froomkin's "White House Watch" feature at the WaPo yesterday:

"Complicity - and Accountability - on Torture"

responding to certain pundits who say we are all responsible, thus there should be no investigation.

(Sorry, I cannot easily provide a direct link without distorting the thread.)

Let's add to today's reading Peter Finn and Carrie Johnson's WaPo article 5/4/09 "Detainee Compromises Likely - Marri Case Suggests That Interrogations Will Hinder Trials."

Also, to add to Mourad's litany, perhaps there should be inserted George W's National Security Strategy (Oct., 2002) to the effect that "We're #1 militarily, #1 economically and #1 politically and we'll do whatever is necessary to maintain these positions." Perhaps including torture?

As the late Count Basie used to tell his band, "One more once ... "

See Deepak Chopra's "The Toxic Residue of Torture" originally published 5/4/09 in the San Francisco Chronicle and available via Truthout at:

Dr. Chopra is appalled as a physician with the role his profession played in the Bush/Cheney torture game and asks for a commission. Apparently "Do no harm" of the Hippocratic Oath was translated into "Do no harm that will result in death but anything goes in between" for these participating physicians' "hypocritical" oaths to Bush/Cheney.

Actually, if one goes back to this 2007 account in Wa-Po Pushing the Envelope on Presidential Power, one may in due course find that Barton Gellman and Jo Becker (who got a pulitzer Prize for the series, did they not?) had by then a pretty good handle on the fons et origo mali of detainee abuse: to wit one "Darth Vader" Cheney and a legal triumvirate of Cheney's Counsel, David S. Addington, John Yoo and Timothy Flanigan with assists from William J. Haynes II and a considerable supporting cast.

Having observed David Addington give evidence before the House Judiciary Committee last year, I would dearly love to see His Arrogance in the dock (or whatever the equivalent is in a US Federal Criminal Court) and I dare say there are others who would share that view.

LOL! Every day, Mourad and Shag have "more revelations" (of course, said "revelations" were published in 2007-2008, but it's news to them).

Jack Kelly has an interesting article discussing how CIA has gone to war with the Obama Administration out of self defense and foreign intelligence agencies hold Obama in contempt after he released the OLC memos describing the means and methods of CIA interrogation and announced the closure of Gitmo and the planned released of detainees into the US:

The CIA's war against President Bush was motivated by ass covering, or by political partisanship. But with President Obama, it's personal.

Many are furious about his disclosure of explicit details of the interrogation methods used on some al Qaida bigwigs, and his waffling on whether or not those who employed them will be subject to prosecution.

Others are incensed by his decision to close the prison at Guantanamo Bay, and to let some of those incarcerated there (17 Chinese Uighurs) loose in the United States.

House Speaker Nancy Pelosi held two hush hush meetings with CIA Director Leon Panetta and Democratic members of the Intelligence Committee last week.

"Her fear and frustration have apparently given way to panic after word reached her of the CIA's reaction to the damage she, President Obama and other Democrats have done to the spy agency in the last three months, wrote Jed Babbin, a former Deputy Undersecretary of Defense, in Human Events May 1. "Pelosi learned that her actions and those of President Obama have so damaged CIA morale that the agency's ability to function could be in danger."

The upshot of the meetings was an unprecedented letter from House Intelligence Committee Chairman Silvestre Reyes (D-Tex) to Mr. Panetta, making a quasi-apology. Rep. Reyes asked the CIA director to "disseminate it to the CIA workforce as soon as possible."

But the CYA nature of the letter, and Mr. Reyes' pledge of more oversight are unlikely to mollify many at Langley.

Other Western intelligence services regard the Obama administration with contempt and rising concern, an officer of the DGSE, France's military intelligence agency, told my friend Jack Wheeler (the real life Indiana
Jones) last week.

"All of us in our little community are worried -- us, our friends in Berlin, London, Tel Aviv," the DGSE officer told Jack. "It is not like the barbarians at the gates. It is every barbarian horde in the world being told there are no gates."

Obama is making the Carter Administration appear qualified and statesmanlike in comparison.

This comment has been removed by the author.

(the real life Indiana
Indiana Jones wasn't CIA, you moron. He was an imaginary professor of archeology.

Jack Kelly has an interesting article discussing how CIA has gone to war with the Obama Administration out of self defense and foreign intelligence agencies hold Obama in contempt after he released the OLC memos describing the means and methods of CIA interrogation and announced the closure of Gitmo and the planned released of detainees into the US:

Considering that Obama was greeted like a rock star at his last visit to CIA heaadquarters, this must be a very, very covert war.

Charles: So how would you propose to break the logjam of tit-for-tat citations and bald assertions that pass for dialog here? Certainly you must be getting tired of ending every thread by yourself with three shouts into the abyss.

Oddly (or is is really odd?), little Lisa's bro did not include these paragraphs from Smilin' Jack Kelly's article:

"'Why did the CIA allow such a controversial book to be published in the first place?' asked attorney Mark Zaid, who specializes in national security law. 'There is simply no question that the CIA could have prevented the publication of Scheuer's book if it had wanted to do so. And no court would have sided with him.'

"Why would some at the CIA want to sabotage President Bush? One motive might have been to deflect blame for intelligence failures. The CIA confidently had predicted Saddam Hussein possessed weapons of mass destruction. But none were found. The tactical intelligence the CIA provided to the U.S. military forces invading Iraq proved nearly worthless. And the CIA was caught flat-footed by the insurgency that developed several months after Saddam's fall."

These preceded the following that starts the excerpt selectively quoted by little Lisa's bro:

"The CIA's war against President Bush was motivated by ass covering, or by political partisanship. But with President Obama, it's personal."

Why was little Lisa's bro so selective? Perhaps he did not want to put his favorite president in the spotlight of the CIA's vindictiveness, rather wishing to focus on Obama. Really, what credence can be given to Smilin' Jack or his buddy CIA operatives he is in thrall of? Were these CIA operatives successful in their pique with Bush? Or did George Tenet come through this not like a "Greek God" but rather a "goddam Greek"? That's some big ass to cover.

And bringing in Indiana Jones perhaps played with the imagination of little Lisa's bro with his Backpack of Lies climbing clandestine hills in Colorado. Often the gatherers of intelligence lack intelligence.


Obviously, the "final solution" (for the last 13 threads at least) here at Balkinization has been to disallow comments and shut down free speech completely. It's a shame, really, considering Jack's professed value for the marketplace of ideas.

On my blog, of course, I will always allow comment threads and never delete them or ban anyone.

In dictatorships, there is often a problem with the executive oversight of the intelligence services for the simple reason that knowledge, especially knowledge that is not in the public domain, is power. Thus in dictatorships, one finds that the clandestine services are often involved in the periodic coups which topple the leaderships, one finds a proliferation of services, each spying on the other and so forth and so on.

Even in democracies, and for largely the same reasons, there are difficult issues with oversight and periodic scandals. We in the UK have had our periodic problems with the security service
popularly known as MI5) and the intelligence service (MI6), the French DST and DGSE have had theirs, so have the Italians and were we to bother to do the research, we would surely find other examples for other countries. One has governments in power misusing the domestic intelligence service to dig up dirt to bring pressure on political opponents, the periodic double agent scandals, clandestine agents in foreign countries getting caught by the local police breaking local laws, operations to destabilise foreign governments runing amok - and so forth and so on.

Neither the FBI nor the CIA have been immune from such scandals in the past.

All the oversight mechanisms that have been devised in democracies are aimed at keeping such agencies within the bounds which the constitution, the legislature and the executive sets for them, but none is perfect because by their very nature, the work of such agencies cannot be completely exposed to the sunlight.

It is worth recalling the work of the Church Committee and the undesirable practices it exposed. Immediately after 9-11, there were calls from prominent Neocons, such as R. James Woolsely, for restrictions imposed on the CIA and FBI after the Church Committee had reported, saying the CIA guidelines imposed by the Clinton administration hampered the "war" on terrorism.

VP Cheney, Former President George HW Bush and Senator Richard Shelby, as I recall, all supported "taking the gloves off"Well, we now know that the gloves certainly did come off. So, unsurprisingly, there is a media war now being waged by those who still believe that the best weapon against terrorists is thuggery and
there is no shortage of pundits to beat the drum for thuggery.

Jack Kelley of the Pittsburg Post Gazette, Real Clear Politics and the Jewish World Review was a news correspondent in Vietnam in 1970 and a deputy press secretary for the Republican National Committee in 1977. Kelly was also "a deputy assistant secretary" of the U.S. Air Force during the Ronald Reagan administration. He can be relied upon to serve up the right wing
"talking point of the day" one of his best being this column about the Administration Response to Hurricane Katrina Jack Kelly: No shame -The federal response to Katrina was not as portrayed criticised as containing "numerous falsehoods and dubious statements" on Media Matters Jack Kelly column littered with Katrina falsehoods

Just the sort of journalism I would expect poor dear Bart to promote. Those who enjoy a good laugh may care to peruse more articles by Jack Kelley on RCP Jack Kelley: Recent Articles - try The case for Sarah Palin.

There are in fact two campaigns going on at the moment - one to protect the Bush NSC and its staffers and the CIA top dogs, the other to protect the Bush OLC lawyers from being too embarrassed by the forthcoming report of the Justice Department Inspector-General
Former Bush Officials Work to Soften Report on Interrogations

Hardly surprising really, the "Darth Vader and Acolytes" people at risk from the investigations may well be arrogant and unprincipled - even evil, but no-one has ever claimed they were stupid. I guess they can see the writing on the wall as well as others - perhaps better - because they know what revelations are to come.

It seems like Senator Cris Dodd agrees that this goes into VP Cheney's office: Dodd: Torture Investigations may need to go as high as Cheney's office.

"I believe that waterboarding is torture. … Pat Leahy of Vermont has been arguing for a select committee — or a commission, I forget which he’s talked about — to go and review all of this. I agree with him on that. There’s some debate about whether he does it or the Intelligence Committee does it — somebody ought to do it. [...]

In a sense, not to prosecute people or pursue them when these acts have occurred is, in a sense, to invite it again in some future administration. If you think it doesn’t mean anything, that you can basically do what you want and we’ll somehow just say, “That was yesterday, today’s today.” Had that handful of people who advocated at the Nuremberg Trials embraced that view — Nuremberg became the symbol of who we were. Even these thugs got a lawyer. Even these thugs had a trial, despite their acts. So we became a symbol of jurisprudence and the rule of law. [...]

Q: Even if it goes up as high as — A lot of this stuff seems to point toward Cheney’s office.

DODD: You gotta go where you gotta go."
Note: Senator Dodd's father was a Nuremberg Prosecutor. His father's letters home have just been published.

Mourad wrote:

"DODD: You gotta go where you gotta go."

Note: Senator Dodd's father was a Nuremberg Prosecutor. His father's letters home have just been published."

More notably, Dodd's father was a crook, censured by the Senate, a fate Dodd may soon share.

You may know that here in Britain, Tony Blair's Attorney General, Lord Goldsmith, is infamous for advising Blair that the Iraq war was legal. There is talk of prosecuting lawyers who merely advised governments that waterboarding a few "terrorists" was OK. What will happen to lawyers who advised that it would be legal to invade a sovereign country, overthrow its government, and kill uncounted numbers of its citizens? Perhaps Lord Goldsmith should get himself a good attorney.


I happen to be of the view (shared by many others) that Lord Goldsmith's advice to the Cabinet was wrong. However, under the UK constitutional settlement the decision to go to war or not is not justiciable in the English Courts. The remedy lies in Parliament and if need be at the ballot box.

That is why the Government has used every possible excuse to defer the holding of the customary Inquiry into the war, but now that UK troops have withdrawn from Iraq, it appears that the Inquiry will now take place. We shall see.

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