Tuesday, April 21, 2009

It's Official: No U.S. Prosecution Of Bush Officials: (Or Is It? That Is The Question.)

It's Official: No U.S. Prosecution Of Bush Officials:  (Or Is It? That Is The Question.)


Those words set off a hail of words in cyber space, the story spreading as fast and furiously as a California wild fire.  The near generated more heat than light, more hysteria than lucidity and mind blinding rage.  This is Washington DC, and things are never that simple. Truthfully; the release of “The Torture Memos” has released a confusion of torrential flood of words, not all leading to either clarity or sanity.

What do we know for sure? For starters; the entire world knows more than the now “Big Four Memos”, and has for some time.  There has been no lack of suggestions as regards what ought to be done in the name of law and order, justice and dignity, so much so that everyone has been tripping over everyone else, and as we are  want to do; the whole damn mess has degenerated into in proprietary turf battles and “A Petition Of The Hour”.

So let’s have a reality check!  The “Powers that be” don’t really want this whole torture issue to escalate into a full blown national crisis, unless, and we’ll get back to that a bit later.

The memos are a loaded gun and everyone is diving for it to get off the shot, but as of yet no one has separated the scrum and provided any order to the contest. So no BANG!

If you’re reading this you are more than likely of “the hang the bastards haul their asses into court now” persuasion; their guilt only needs to be officially declared in a court room and that’s that! I’m with you.

However, there are still those who are prepared to argue vehemently that folks should not be prosecuted for “only having followed orders”.  It’s so hard; you know not to follow orders. They don’t want to be reminded about Nuremberg; in fact every time you even mention The Geneva Conventions their eyes roll up and get all glazed over…like you have got to be out of your mind; that S#%T was for Hitler not Bush, Cheney and our loyal torturing CIA personnel and Blackwater Patriots.  

And that’s all quite logical for those folks because they have already rejected the legitimacy of our own Constitution ether consciously as an old and now irrelevant piece of nice historical paper or unconsciously as flock followers of “you’re not patriotic” if you don’t agree with what I say. 

I have even included in this post by Rich Lowry, Editor of The National Review: “The Case for the ‘Torture Memos’ : Rightly considered, the memos should be a source of pride.”  In which he presents an argument justifying and excusing the torture this nation has engaged in, and this is not some older piece…( April 21, 2009 12:00 AM). 

We are still arguing over who is going to investigate what and for what purpose of  outcome, the wide spread fear being that this is all political theater designed to somehow placate us with a “Truth With No Consequences” finish, you know the; “we have all the [know facts] on the historical record” approach…a deterrent to these things ever again transpiring and trust us; we’ll never let the extended powers of the Imperial/Unitary Presidency in practice, precedent and statue be exercised again!

I have a bad taste in my mouth.  We even have a piece included today from former federal prosecutor Elizabeth de la Vega arguing against the call for a Special Prosecutor.  I might as well incur the wrath of many right now. There are those who hold Ms. De la Vega in high regard, almost sainthood; I am not one like the many sycophants who have posted comments to her original posting. I acknowledge that she makes some good points about process and time that folks ought to be mindful of and that we should be prepared to endure, but her opinion is not highly regarded in the legal circles within which I have and continue to travel, including attorneys who have never lost a case they have argued before the Supreme Court.

Many of her reasons are simply cosmetic redressing of arguments for inaction that we have already rejected out of hand, albeit skillfully wordsmith to the point of palatably logical. I was not pleased with her no indictment/indictment writings on Bush and even less enamored of this piece of work, or as one attorney put it this morning: ” She is past her prime and spends too much time writing to hear herself talk”. 

I will get to the specifics as we move along…but here is where it all started for today:


It's official: No U.S. prosecution of Bush officials

WASHINGTON – President Barack Obama does not intend to prosecute Bush administration officials who devised the policies that led to the harsh interrogation of suspected terrorists, White House chief of staff Rahm Emanuel said Sunday.

Obama last week authorized the release of a series of memos detailing the methods approved under President George W. Bush. In an accompanying statement, he said "it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice, that they will not be subject to prosecution." He did not specifically address the policymakers.

Asked Sunday on ABC's "This Week" about the fate of those officials, Emanuel said the president believes they "should not be prosecuted either and that's not the place that we go."

GOP Sen. Lindsey Graham of South Carolina, a member of the Senate Armed Services Committee, said the idea of "criminalizing legal advice after one administration is out of the office is a very bad precedent. ... I think it would be disaster to go back and try to prosecute a lawyer for giving legal advice that you disagreed with to a former president."

Sen. Claire McCaskill, D-Mo., said, "I don't think we want to look in the rearview mirror." But McCaskill, also on the Armed Services Committee, said there probably was a need to ask more questions. "How do get lawyers at the top levels of the Justice Department that could give this kind of advice?"

The decision not to seek charges against the interrogators has been criticized by the American Civil Liberties Union and called a violation of international law by the U.N.'s top torture investigator.

In his statement last week, the president said: "This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."

Republican lawmakers and others contend that national security was undermined by the release of the memos. On Sunday, Obama administration officials pushed back vigorously against that claim.

"We are absolutely confident that we have the tools necessary to get the information we need to keep this country safe," senior presidential adviser David Axelrod said on Face the Nation" on CBS. "And we don't believe and the president of the United States does not believe that this is a contest between our values and our security. He thinks we can honor both and execute both. And that's what he's going to do."

Michael Hayden, who led the CIA under Bush, said the public release of the memos will make it harder to get useful information from suspected terrorists being detained by the United States.

"I think that teaching our enemies our outer limits, by taking techniques off the table, we have made it more difficult in a whole host of circumstances I can imagine, more difficult for CIA officers to defend the nation," Hayden said on "Fox News Sunday."

Administration officials said information in the memos already was in the public realm and that releasing details about interrogation techniques gave no new edge to al-Qaida and other terrorist groups.

"The notion that somehow this all of a sudden is a game changer doesn't take cognizance of the fact that it's already in the system and in the public domain," Emanuel said.

As a result of Obama's decision, he said, "we've enhanced America's image abroad. These were tools used by terrorists, propaganda tools, to recruit new terrorists. And the fact is, having changed America's image does have an impact on our security and safety and makes us stronger."

But Hayden said many who oppose the harsh techniques used by interrogations "want to be able to say, 'I don't want my nation doing this,' which is a purely honorable position, 'and they didn't work anyway.' That back half of the sentence isn't true. The facts of the case are that the use of these techniques against these terrorists made us safer. It really did work."

Hayden said he believes the government was just beginning to look into the policies.

"There will be more revelations. There will be more commissions. There will be more investigations," he said. "And this to an agency, again, I repeat, that is at war and is on the front lines defending America."

Graham and McCaskill also appeared on Fox.


Sen. Sheldon Whitehouse Comments On Release Of Bush-Era Torture Memos


Do You Think We Ought Tell Him It’s Over?


Momentum Gains in Movement to Impeach Bush Torture Lawyer Turned Federal Judge







A Former Prosecutor Examines The Special Prosecutor Debate.

Elizabeth de la Vega

 There is no doubt that sometime in 2002 - if not before - Bush administration officials and their lawyers began orchestrating a torture campaign, which they calculatedly attempted to justify through specious legal memos. They continued to abuse prisoners, and to conceal that mistreatment from Congress and the public, through at least 2008. In all of this conduct, they have committed grave crimes for which they must be held accountable. I believe this to be a national imperative of the highest order. I have pored over every available book and report about torture, disturbing as they are, and I have read the lurid facts and twisted legal reasoning laid out in the Office of Legal Counsel torture memos just released by the White House. I am increasingly outraged by the day, disgusted by years of inaction, and impatient for results. Consequently, I would like nothing more than to join with so many friends and associates whom I respect in calling for immediate appointment of a special prosecutor.

 Unfortunately, however, I can't do it. Not yet. We must have a prosecution eventually, but we are not legally required to publicly initiate it now and we should not, as justifiable as it is. I'm not concerned about political fallout. What's good or bad for either party has no legitimate place in this calculus. My sole consideration is litigation strategy: I want us to succeed. And our best hope of doing that is to unflinchingly assess - just as any lawyer would do when contemplating choices of action in a case - what we would have tomorrow if we got what we think we want today. We should obviously think twice about pursuing an intermediate goal, however satisfying it may appear, if it would be counterproductive in the long term. There are times when it's smarter to wait before taking a prosecutive step and this is one of them.

 I know that what I have to say may not be popular, but the stakes here are too high to ignore "bad facts" - i.e., those that might run counter to our position or the course we've decided to take. So, it's better, I think, for me to tell you what I know to be true about grand jury investigations and the requisites of preparing a criminal case for indictment and trial - even though you might not like to hear it. Then you can make this assessment yourselves.

First, the bottom line: From the perspective of anyone who wants Bush and Cheney and their top aides to be held accountable for their crimes, the designation of some sort of independent prosecutor right now would be the worst possible eventuality. It's a move that has so many downsides - and holds so few real benefits - that I would be more inclined to question President Obama's motives if he appointed a special prosecutor than if he did not. There is a reason why former prosecutor Arlen Specter - a Republican senator from Pennsylvania - has voiced support for a special prosecutor, while former prosecutors Patrick Leahy and Sheldon Whitehouse - Democratic senators from Vermont and Rhode Island, respectively - would prefer a public inquiry.

 What is it? Well, for starters, there is - under currently available US law - no such thing as a truly independent prosecutor. There has not been since 1999, when the independent counsel statute expired. Accordingly, regardless of the title given this individual - and whether she were tapped from inside or outside the Justice Department - this appointee would, at a minimum, be required to follow internal DOJ policies and her delegated authority could be revoked at any time. (The regulations that authorize appointing a non-DOJ attorney as "special counsel" - found at 28 C.F.R. Part 600 et. seq - actually make possible substantially more attorney general oversight into prosecutorial decisions.)

 Under existing federal law, in other words, the notion of a special prosecutor who would be entirely free from political and institutional influence is illusory. Given that fact - and that it is ordinarily an extremely dumb, not to mention unethical, idea to announce investigations - when an administration does announce that it is naming a "special counsel" of any sort, it is largely a public-relations maneuver. The president thereby appears to be committed to the rule of law, but is, in fact, parking an extremely inconvenient problem in a remote and inaccessible lot.

Once this happens, all who wish to avoid the issue have a ready excuse. The president can refuse to comment because there is an ongoing criminal investigation. (Remember Bush's press person, Scott McClennan?) And members of Congress from either party can look the other way, because - again - there is an ongoing criminal investigation. It's a perfect dodge.

 Certainly, an official initiation of an investigation by the Obama administration now that these latest horrifying torture memos have been released would not be devoid of real benefit. It would constitute a powerful statement to the world and I don't minimize the importance of that. But once the press conference ended, would we all give each other high-fives and move on? Of course not: It is not what we ultimately want at all. What is it we do want? There is rich disagreement about particulars, but - in broad terms, at least - I think it's fair to say that the goals are: (1) a cohesive and irrefutable public narrative of the criminal activity; (2) an opportunity for victims to be heard in an open forum; (3) and accountability for the perpetrators of these crimes, from Bush and Cheney on down.

The naming of a special prosecutor is widely seen and often touted as a quick and almost sure-fire way to achieve these ends - as if merely by setting this train in motion, we will all arrive at the courthouse in no time, ready for trial, where the entire story will be laid out for the public to hear. Unfortunately, however, nothing could be further from the truth. The reality is that, if fulfilled, this wish would result in a painfully short-lived victory.

If a special prosecutor were appointed today, what we would have tomorrow would be the very public initiation of a federal grand jury investigation. But that is all we would have. At the same time, however, we will have likely ensured that there will be no public congressional hearings for years to come. Potential targets or subjects who might previously have felt comfortable enough to speak publicly and further incriminate themselves will clam up. Because of the stringent secrecy rules that govern grand jury proceedings - and prosecutors' justifiable concern about violating them - information that was previously public may be transformed into secret grand jury material. (It sounds crazy, but it's true.) Victims and witnesses will be interviewed behind closed doors. And most will gladly heed the prosecution's suggestion that, while they have no obligation to keep their testimony secret, there are very good reasons to do so. So there will be no public narrative, no official opportunity for victims to describe what was done to them by the US government.

 Nor would the investigation be the shortest in the world, as has been suggested. Yes, there is overwhelming evidence in the public arena. But, ironically, that is more of a problem than a help. A sprawling investigation of any kind into multiple crimes committed by dozens of people - as this is even without the CIA agents - takes a very long time. Prosecutors must bring specific charges against named individuals, and be ready to prove those charges through admissible evidence as soon as indictments are returned. (This is in stark contrast to a civil case, where a complaint is filed and then discovery ensues.) Generally, the prosecutor cannot introduce hearsay, anonymous information, speculation, non-expert opinions or unsourced documents. Evidence must be relevant to a charge and presented in an orderly fashion through live witnesses and/or documents. A prosecutor cannot just plop thousands of documents and dozens of reports and books on the counsel table, and tell the jury to have at it.

So what would a prosecutor have to do before presenting the case for indictment? Here is a sampling of tasks that would be necessary: comb through and organize all relevant government memos, reports, emails and the like; litigate issues of classification and privilege; follow up on leads from information obtained; interview hundreds of witnesses and victims; identify each and every memorialized - or reported - statement made by witnesses or defendants; and interview those to whom the statements were made. During this process, the prosecutor would be deciding which, if any, defendants to charge and communicating extensively with attorneys. Only when all of this preliminary work is done would witnesses be called to the grand jury, which could well entail additional time-consuming litigation. This massive effort would take years and there is no guarantee that indictments against anyone - particularly higher-level defendants - would ever be returned.

Well, if not now, then, when? Wouldn't the same interminable process just happen later? Not necessarily. Notwithstanding the public statements that the president and attorney general made in connection with the release of the memos, I find cause for optimism in their actions. No smart lawyer who secretly wanted this entire issue to disappear would have released those torture memos. From a prosecutor's point of view, the release of those memos with their authors' names in full view was pretty much the same as releasing their photographs with bloody knives in hand. The president and the attorney general may not have said much, but what they did was quietly flip the switch on a searing bright light.

Yes, Obama's Chief of Staff, Rahm Emmanuel, has now said flatly that there will be no prosecutions of Bush officials, but the reality is that this story is far from over. As former CIA head Michael Hayden said on April 19, more by way of complaint than promise: "There will be more revelations. There will be more commissions. There will be more investigations," he said.

 This statement may be one of the few Hayden has ever made that I can agree with. The truth is that - frustrating and appalling as it is - given the amount of damning information that's been revealed, we are just starting this process. If we are to have any hope of achieving some form of justice for these criminals and their victims, we must let the horror of the conduct and the extent of culpability reveal themselves in public view. And we must facilitate a narrowing of the focus so that specific defendants and charges can be clearly identified in the minds of not just the general public, but decision-makers at the Justice Department.

What we continue to need, in sum, are unwavering spotlights, even more civic education, and, most importantly, an irrefutable and cohesive factual narrative - comprised of direct and circumstantial evidence - that links the highest-level officials and advisers of the Bush administration, ineluctably, to specific instances and victims of torture. What we will surely have, however, if a special prosecutor is named, will be precisely the opposite: The initiation of a federal grand jury investigation right now would be roughly the equivalent of ceremoniously dumping the entire issue of torture into a black hole. There will be nothing to see and we will be listening intently to radio silence, trying to make sense of intermittent static in the form of the occasional unreliable leak. For years. There may never be any charges and we will almost certainly never have the unimpeachable historical narrative that we need.

Caution and complexity don't sell very well on cable, I know. So you might not hear it there, but we can wait a while for a prosecutor and - if we want to succeed - we should: I don't think any of these guys presents a flight risk and we need to keep this road to accountability well-lit and noisy.

Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and chief of the San Jose Branch of the US attorney's office for the Northern District of California. Her pieces have appeared in a variety of print and online publications including Truthout, TomDispatch.com, The Nation, The Los Angeles Times, Salon, Mother Jones and The Christian Science Monitor. The author of "United States v. George W. Bush et al," she may be contacted at ElizabethdelaVega@Verizon.net or through Speakers Clearinghouse.


Rebuttal Commentary:


Litigation Strategy.. (delay) “smarter to wait” Paragraphs two and three are nothing more than fine pretentious posturing prose. Ms. De la Vega fails to take into account the political machinations surrounding this matter.  Her writing is so devoid of evaluating the politics and political climate surrounding the issue that I would have to label her as politically naive.  It is the “make nice process” syndrome. Let’s make something painfully clear here.  What Obama has said to date on the matter does not matter in the long run. What Rahm Emanuel said Sunday does not matter in the long run, especially Rahm, the ultimate politically consumed opportunist. What has been said is the position of the moment and if it becomes politically expedient to exonerate, hold safe, the entire criminal cabal via amnesty, immunity and/or pardons; it will be done.  If they can be politically blackmailed into surrender for the sake of their legislative agenda; they will yield. Delay in this instance is akin to delaying seeing a physician until the melanoma on your arm is a half dollar in size and bleeds now and then.  It’s too late.  The there is the second scenario where the economic mess passing from being labeled by the public as “The Bush Depression” to Obama’s economic mess, on or before September 1, 2009 as polling data would indicate; then this issue of perusing war criminals and economic criminals becomes the ultimate deflection and two-step side step and you can forget everything that has been said to date!

The window of opportunity is now. There are plenty of fine legal minds that can be enlisted in the effort at the drop of a pin to do the painstaking work that would be advisable in addition to that easily harvested and already public property. Her argument here is feeble at best!


We must have a prosecution eventually, but we are not legally required to publicly initiate it now and we should not, as justifiable as it is.” I really don’t want to and will not use the words that were applied to this statement this morning.” It is the considered legal opinion on this end that it is a matter of “use it, or lose it!”


There is a reason why former prosecutor Arlen Specter - a Republican senator from Pennsylvania - has voiced support for a special prosecutor, while former prosecutors Patrick Leahy and Sheldon Whitehouse - Democratic senators from Vermont and Rhode Island, respectively - would prefer a public inquiry.

 What is it? Well, for starters, there is - under currently available US law - no such thing as a truly independent prosecutor. There has not been since 1999, when the independent counsel statute expired. Accordingly, regardless of the title given this individual - and whether she were tapped from inside or outside the Justice Department - this appointee would, at a minimum, be required to follow internal DOJ policies and her delegated authority could be revoked at any time. (The regulations that authorize appointing a non-DOJ attorney as "special counsel" - found at 28 C.F.R. Part 600 et. seq - actually make possible substantially more attorney general oversight into prosecutorial decisions.) 

This is based upon a seriously flawed assumption that there would not be a new statute put into place on this occasion that corrects the well-documented deficiencies on the previous statute and avoids the pit falls of cited statute/regulation. There are such documents that have been developed at several “Gold Standard Law Schools ready for the offering. I find the author ill-informed or deliberately evasive of that fact. Leahy’s back steeping was purely political in nature.


“No smart lawyer who secretly wanted this entire issue to disappear would have released those torture memos. From a prosecutor's point of view, the release of those memos with their authors' names in full view was pretty much the same as releasing their photographs with bloody knives in hand. The president and the attorney general may not have said much, but what they did was quietly flip the switch on a searing bright light.”

In this regard Ms de la Vega is correct. They have placed the matter on the table and at this point they are comfortable with the leverage they exact from that fact and the axe they hold over heads.  The question, and I refer back to potential scenarios: is do we want to leave the control of the agenda is their hands for their purposes or do we want to seize the opportunity for our goals?  I think the answer is self-evident.


“Yes, Obama's Chief of Staff, Rahm Emmanuel, has now said flatly that there will be no prosecutions of Bush officials, but the reality is that this story is far from over. As former CIA head Michael Hayden said on April 19, more by way of complaint than promise: "There will be more revelations. There will be more commissions. There will be more investigations," he said.” And I agree, but that is no reason to simply wait around for others to manipulate unfolding events for DC political agendas when can make these events work for the American agenda.


“Caution and complexity don't sell very well on cable, I know. So you might not hear it there, but we can wait a while for a prosecutor and - if we want to succeed - we should: I don't think any of these guys presents a flight risk and we need to keep this road to accountability well-lit and noisy.”  I would insist madam that sustaining noise is more of the same that folks having been doing to no avail.  We can manage cable, secure the talent to proceed and I suggest you think anew and renew your vision of new Special Prosecutorial Statute that can address fully and expeditiously the table set before us. Leave old assumption and past defunct statutes behind as you reference point for dismissing the current tidal request for A Special Prosecutor. You are simply wrong this time! You are out of touch and out of step. Though I accept your cautions I cannot agree with the fundamental assumptions and the foundation upon which you have based them.



While Obama has made clear that he does not intend to prosecute CIA torturers and their bosses and lawyers, saying it is “time for reflection, not retribution,” not everyone in his party is in agreement. As previously reported, Representative Jan Schakowsky, has been outspoken on this issue, as have Senator Russ Feingold and Representative Jerrold Nadler. But the leadership of the Democratic Party has, predictably, been silent. Indeed, Nadler was the first Democrat to call for the appointment of a Special Prosecutor. On Friday, Nadler released a statement, saying:

“These memos make it abundantly clear that the Bush administration engaged in torture. Because torture is illegal under American law -- as the U.S. is a signatory to the Convention Against Torture -- we are legally required to investigate and, when appropriate, to prosecute those responsible for these crimes.

“I commend President Obama for his unequivocal rejection of torture and for his resolve to move forward. The President’s intentions are honorable, but don’t go far enough. All history teaches us that simply shining a light on criminal acts without holding the responsible people accountable will not prevent repetition of those acts.

“I have previously urged Attorneys General Gonzalez and Mukasey to appoint a special prosecutor to investigate the torture abuses of the Bush administration, and now I will convey that same necessity to President Obama and Attorney General Holder. We sorely need an independent investigation that will provide accountability for these terrible crimes.

Meanwhile, Bob Fertik at Democrats.com is circulating a petition to Congress with five primary demands:

1. Demand the appointment of a Special Prosecutor by Attorney General Eric Holder for torture, warrantless wiretapping, and other heinous crimes of the Bush Administration.

2. Prohibit the use of any taxpayer dollars to defend government officials who committed such crimes against lawsuits, or to pay for judgments against them.

3. Impeach Judge Jay Bybee, the torture memo author who serves on the Court of Appeals for the Ninth Circuit in California.

4. Protect human rights by restoring Habeas Corpus and the Fourth Amendment (search and seizure), including repeal of the Orwellian-named Protect America Act, U.S.A. Patriot Act, the FISA Amendments, and Military Commissions Act.

5. End secret government by prohibiting use of “State Secrets,” “Sovereign Immunity” and “Signing Statements.”

The Obama administration has a moral and legal responsibility to prosecute Bush era criminals. The UN has indicated that Obama’s refusal to prosecute torturers may be a violation of International law. As for US law, Michael Ratner, president of the Center for Constitutional Rights said, “Whether or not to prosecute law breakers is not a political decision.  Laws were broken and crimes were committed. If we are truly a nation of laws … a prosecutor needs to be appointed and the decisions regarding the guilt of those involved in the torture program should be decided in a court of law.”

Comments like “reflection not retribution” and “look forward, not backwards,” are insulting to the rule of law and the cause of justice.

In a recent piece for Slate, “Impeach Jay Bybee: Why should a suspected war criminal serve as a federal judge?,” Yale law professor Bruce Ackerman lays out some of Bybee’s history:

“Jay Bybee is currently sitting on the 9th U.S. Circuit Court of Appeals in San Francisco. As assistant attorney general in President George W. Bush’s Justice Department, he was responsible for the notorious torture memos that enabled the excesses at Abu Ghraib, Guantanamo, and other places. While John Yoo did most of the staff work for Bybee, Yoo was barely 35 years old -- and his memos showed it. They not only took extreme positions; they were legally incompetent, failing to consider many of the most obvious counterarguments. Bybee was 49. He was the grown-up, the seasoned jurist. He had been a law professor and had served as associate counsel to President Bush. When he was promoted to head the Justice Department’s Office of Legal Counsel, he became the final judge of legal matters within the executive branch. Yet his opinion on torture was so poorly reasoned that it was repudiated by his very conservative successor, Jack Goldsmith.”


It Is Becoming Very Clear That Judge Bybee Is Quickly Becoming ,At Least, A Sacrificial Lamb In The Torture Memo Affair And That There Are Those Who Have Their Sights Trained Clearly On Him…To Begin With!

The New York Times Appears To Be On A Mission.

In the Sunday New York Times, the paper’s editors call for the impeachment of Judge Jay Bybee, author of one of the now infamous torture memos released last week. Bybee is now a federal judge. In its editorial, “The Torturers’ Manifesto,” the Times argued:

The Torturers’ Manifesto

To read the four newly released memos on prisoner interrogation written by George W. Bush’s Justice Department is to take a journey into depravity.

Bush Administration Terrorism Memos

Their language is the precise bureaucratese favored by dungeon masters throughout history. They detail how to fashion a collar for slamming a prisoner against a wall, exactly how many days he can be kept without sleep (11), and what, specifically, he should be told before being locked in a box with an insect — all to stop just short of having a jury decide that these acts violate the laws against torture and abusive treatment of prisoners.

In one of the more nauseating passages, Jay Bybee, then an assistant attorney general and now a federal judge, wrote admiringly about a contraption for waterboarding that would lurch a prisoner upright if he stopped breathing while water was poured over his face. He praised the Central Intelligence Agency for having doctors ready to perform an emergency tracheotomy if necessary.

These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.

It sounds like the plot of a mob film, except the lawyers asking how much their clients can get away with are from the C.I.A. and the lawyers coaching them on how to commit the abuses are from the Justice Department. And it all played out with the blessing of the defense secretary, the attorney general, the intelligence director and, most likely, President Bush and Vice President Dick Cheney.

The Americans Civil Liberties Union deserves credit for suing for the memos’ release. And President Obama deserves credit for overruling his own C.I.A. director and ordering that the memos be made public. It is hard to think of another case in which documents stamped “Top Secret” were released with hardly any deletions.

But this cannot be the end of the scrutiny for these and other decisions by the Bush administration.

Until Americans and their leaders fully understand the rules the Bush administration concocted to justify such abuses — and who set the rules and who approved them — there is no hope of fixing a profoundly broken system of justice and ensuring that that these acts are never repeated.

The abuses and the dangers do not end with the torture memos. Americans still know far too little about President Bush’s decision to illegally eavesdrop on Americans — a program that has since been given legal cover by the Congress.

Last week, The Times reported that the nation’s intelligence agencies have been collecting private e-mail messages and phone calls of Americans on a scale that went beyond the broad limits established in legislation last year. The article quoted the Justice Department as saying there had been problems in the surveillance program that had been resolved. But Justice did not say what those problems were or what the resolution was.

That is the heart of the matter: nobody really knows what any of the rules were. Mr. Bush never offered the slightest explanation of what he found lacking in the 1978 Foreign Intelligence Surveillance Act when he decided to ignore the law after 9/11 and ordered the warrantless wiretapping of Americans’ overseas calls and e-mail. He said he was president and could do what he wanted.

The Bush administration also never explained how it interpreted laws that were later passed to expand the government’s powers to eavesdrop. And the Obama administration argued in a recent court filing that everything associated with electronic eavesdropping, including what is allowed and what is not, is a state secret.

We do not think Mr. Obama will violate Americans’ rights as Mr. Bush did. But if Americans do not know the rules, they cannot judge whether this government or any one that follows is abiding by the rules.

In the case of detainee abuse, Mr. Obama assured C.I.A. operatives that they would not be prosecuted for actions that their superiors told them were legal. We have never been comfortable with the “only following orders” excuse, especially because Americans still do not know what was actually done or who was giving the orders.

After all, as far as Mr. Bush’s lawyers were concerned, it was not really torture unless it involved breaking bones, burning flesh or pulling teeth. That, Mr. Bybee kept noting, was what the Libyan secret police did to one prisoner. The standard for American behavior should be a lot higher than that of the Libyan secret police.

At least Mr. Obama is not following Mr. Bush’s example of showy trials for the small fry — like Lynndie England of Abu Ghraib notoriety. But he has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution.

That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.

These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.

After eight years without transparency or accountability, Mr. Obama promised the American people both. His decision to release these memos was another sign of his commitment to transparency. We are waiting to see an equal commitment to accountability.


"Don't know who among us would not have done "waterboarding" or anything else of this nature on 9/11/01, after the scenes of death and devastation. This pretense of being "goody-two-shoes" serves no useful purpose and actually demonstrates naivite at best and pure politics at its worst. Can't remember this being done in the history of this country. Don't even think Abraham Lincoln did this. Maybe the president was not channeling this part of Lincoln."

This mises the point - who amongst us will not jail a a priest paedophile before they go on and abuse children?

who would not go on and arrest the clumbine boys before they went on their rampage??

The point is how low would we stoop against our principles as a nation because there is a threat out there.

Funny enough the threat remains and will always remain. So should we continue to torture??? what is important is how we react to this wrong methods and prevent it from happening and hope we will always do the right thing when the time comes. remember our men and women in the war zones as well as cops on the street face these dilemma everyday.... everyday- just imagine if they act using the memos as a guide... how worrying is that???


Torturing Judge Bybee: Make Him Eat His Own Words

By Dave Lindorff | Mon, 04/20/2009 - 19:47 — dlindorff


If the day comes that Congress finally does its duty and begins an impeachment effort against 9th Circuit Federal Appeals Judge Jay Bybee, the former Bush assistant attorney general who in 2002 authored a key memo justifying the use of torture against captives in the Afghanistan invasion and the so-called “War on Terror,” it would be fitting punishment to watch him squirm as his own words as a judge were played back to him.

It was as an Appeals Court Judge Bybee, sitting on a case being heard in 2006 by the Ninth Circuit Court of Appeals, that he wrote the following words:

“The only thing we have to enforce our judgements is the power of our words. When these words lose their ordinary meaning—when they become so elastic that they may mean the opposite of what they appear to mean—we cede our own right to be taken seriously.” (Amalgamated Transit Union Local 1309 v. Laidlaw Transit Services, Inc.).

Yet causing words to become “so elastic that they may mean the opposite of what they appear to mean” was precisely the goal of the 48-page memo, just released by the Obama Administration, which Bybee wrote for the Bush/Cheney White House authorizing the use of what any ordinary person, and indeed the US Criminal Code, would define as torture against captives held in Bagram, Abu Ghraib, Guantanamo and elsewhere.

The actual Geneva Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, incorporated in 1996 by act of Congress as a part of the US Criminal Code, Title 18, Sections 2340-2340A, is quite unambiguous in its proscription. As Bybee notes in his memo, the Convention Against Torture defines torture as:

“…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

Now we know that what US CIA agents, military interrogators, and even prison guards charged with “softening up” detainees, were doing to captives included repeated waterboardings (over 100 times in the case of some captives), slamming into walls while leashed to a neck restraint, enforced sleeplessness for as long as 11 days at a time, subjection to prolonged periods of extreme heat or cold, attacks by dogs, being locked in a box with biting insects, etc. ad nauseum.

Yet Bybee, in his capacity as counsel to the president in the office of the Attorney General, went to great creative lengths to make the words in that act “elastic” to the point that they “lose their ordinary meaning.”

For example, in his memo Bybee wrote:

“We…conclude that certain acts may be cruel, inhumane or degrading, but still not produce pain and suffering of the requisite intensity to fall within Sec. 2340A’s proscription against torture.”

Then, because he saw that that term “severe” in the statute was problematic, Bybee went out of his way to try to make it mean something more extreme. He found a legal case involving a hospital that was being sued for refusing to admit an emergency medical patient, concluding that severe pain would have to be pain “equivalent to (sic) intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.”

Obviously, when someone says they have a “severe headache” or tells the doctor that they have a “severe pain” in their lower back, they aren’t talking about facing death, organ failure of impairment of bodily function. They are using the word in its “ordinary meaning” to communicate that they are hurting badly. But then Asst. Attorney General Bybee isn’t interested in what Judge Bybee called “the ordinary meaning” of words. He’s looking for weasel words. He’s trying to get words to be “elastic,” and to mean “the opposite of what they appear to mean.”

But Bybee also recognized in the event that Bush or his subordinates were someday to be hauled before a court and prosecuted for war crimes, he would need to offer them a second line of defense, so, ever the good mob attorney, the future appellate court judge offered up this beauty:

“To violate Section 2340A, the statute requires that severe pain and suffering must be inflicted with specific intent. In order for a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act.”

What this means, writes Bybee, is that, “If the defendant [the government torturer] acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted with only general intent” but not “specific intent” to cause pain.” Put another way, he writes, “As a theoretical matter therefore, knowledge alone that a particular result is certain to occur does not constitute specific intent.”

How’s that for elastic? Let’s imagine a killer who fires a gun at a victim, hitting him square between the eyes and killing him. He could offer up the Bybee Defense, arguing that when he pointed his gun towards the victim, at a range of 10 feet, he knew that death was “reasonably likely” to result from his actions, “but no more.” Using Bybee’s reasoning here, he should not be convicted, or even charged with first-degree murder, because he lacked “specific intent” to kill.

But Bybee, noting that a jury might not buy such a line of defense, offers up yet another rationale for torture not being torture. He writes, in the memo:

“Furthermore, a showing that an individual acted with a good faith belief that his conduct would not produce a result that the law prohibits negates specific intent.”

Call this the Faith-Based No Torture Defense. According to FBNTD, if you don’t believe you are torturing someone, you aren’t torturing them. Here Bybee turns to case law with, not a torture case, but rather the example of a defendant in a mail fraud trial, who successfully argued that if he had a good faith belief that the material he was mailing was truthful, he wasn’t guilty of mail fraud. But of course, torture isn’t mail fraud, and the evidence of the pain and suffering being inflicted at the hands of the torturer is right there before his eyes, whatever he may “believe.”

Let’s face it. This word-twisting judge, sitting in his black robes in a court that ranks just below the US Supreme Court in importance, is a disgrace not just to the US court system, not just to the legal profession, but to the English language.

He should not only be impeached and removed from his post by Congress; he should be disbarred by fellow members of his legal profession and then prosecuted as a war criminal by his former employer, the US Dept. of Justice, for his role in authorizing and promoting the use of torture by US military and intelligence agency personnel. If convicted, he should be sentenced to a long term in jail, and while confined should be forced to write 100 times a day on a blackboard:

“The only thing we have to enforce our judgements is the power of our words. When these words lose their ordinary meaning—when they become so elastic that they may mean the opposite of what they appear to mean—we cede our own right to be taken seriously.”

While Bybee himself may have never personally tortured anything but the English language, his eventual prosecution for war crimes could be facilitated by a little legal research he did in that same memo. For as Bybee noted in that memo, the USA PATRIOT Act, in addition to eviscerating much of the Bill of Rights, also amended Section 2340A of the US law prohibiting torture to include the offense of “conspiracy to commit torture”--and if Bybee’s memo doesn’t meet the definition of conspiracy, I don’t know what the word conspiracy means.

Hey, I never thought I’d find myself commending the PATRIOT Act, but here’s one little piece of it that we should not be trying to rescind.

DAVE LINDORFF is a Philadelphia-based journalist. His most
recent book is “The Case for Impeachment” (St. Martin’s Press, 2009).
His work is available at www.thiscantbehappening.net


Published: April 18, 2009 
Updated 2 days ago 

UN official suggests US courts can still try accused torturers

The United Nation’s top torture investigator has suggested it is illegal under International law for President Barack Obama to announce that the United States government has no intention of prosecuting low-level CIA officers who carried out torture sanctioned by the Bush Administration.

President Barack Obama’s release on Thursday of four Bush administration memos sanctioning torture has been widely praised. However, word that government will go so far as to offer a fully-paid legal defense for agents who applied torture techniques to terror war prisoners has triggered loud criticism.

“Like all other contracting states to the UN convention against torture, the US has committed to conduct criminal investigations of torture and to bring all persons to court against whom there is sound evidence,” Manfred Nowak, the UN’s Special Rapporteur on torture, told Austrian weekly paper Der Standard.

“They are party to the convention and the convention is very, very clear,” Nowak told the paper. “The fact that you carried out an order doesn’t relieve you of your responsibility.”

“In a brief telephone interview with The Associated Press, Manfred Nowak [...] said the United States had committed itself under the U.N. Convention against Torture to make torture a crime and to prosecute those suspected of engaging in it,” reported the San Francisco Chronicle.

“Nowak, who said he would soon travel to Washington for meetings with officials, also called for a comprehensive independent investigation into the matter and added it was important to compensate the victims,” the paper continued.

“Nowak said he did not think the president would not go so far as to issue an amnesty law for CIA operatives. Therefore US courts could still try torture suspects,” reported Earth Times.

“President Obama deserves credit for rejecting arguments that official disclosure of these ‘enhanced’ interrogation techniques would set a dangerous precedent,” opined the LA Times on Saturday. “But he continues to hedge about whether the CIA might once again be freed from the standards of conduct imposed on interrogators for the military. Indignation over these shameful documents should convince the president that a double standard for interrogation is intolerable.”

Yoo Admits He Fixed Law Around Bush's Torture Policy

Written by Jason Leopold   

Cheney Says Torture Was A 'Success,' Wants Memos Released To Prove It- 

Written by Jason Leopold    

Cheney Wants CIA Files For Memoir  



It Is The Final Finding Of The Court Of Impeachment And War Crimes That All Members Of The Bush Administration Charged Are Not Above The Law, Should Be Provided No Protection Of Amnesty, Immunity Or Pardon, Should Be Investigated, Indicted, Brought To Trial In All Appropriate  Jurisdictions, And Pending Verdicts, Should be Imprisoned Or Executed As Provided For In International Law Where Applicable.


The Decision Is Not Pleasant, Convenient Or Pragmatic; It Is Justice!




Clarity and candor dictate; integrity requires the observation that: the Constitutional crisis we face as a nation is of long standing and has a long evolutionary trail.  The Constitution has been under assault from the very moment that it was ratified and “crisis’s in our national experience” have always served by “the necessity of the moment” in providing opportunity for legal excess, viewed as temporary and acceptable, seldom if ever, has that which has been legislated or litigated in such instances been corrected or expunged from the growing archive of collective governmental powers.   Like the clutter and trash files that can accumulate on a computer the process has moved forward without a simple mechanism to delete them and their impact is of severe import and impact.

The 9/11 experience, however, created yet again another “opportunity” for Constitutional assault in the name of expedient necessity. I say “opportunity” because both events and documentation reveal a pattern of Constitutional attack that has been not only, and perhaps only, necessary, but an opportunity that within the Bush Administration and its Neocon/Corporate sponsors was deliberately manipulated to accelerate the assault on the integrity of, and validity of that “Old Piece Of Paper”.

The rule of law, as we have come to expect it to apply, ended in a regime-minded administration that has chosen to rule by fiat, arbitrarily act, decree, order, direct, dismiss with signing statements any legitimate impediment to their will and wishes, the execution of their whims without regard for the laws of this nation, the international community and any moral principles, which, with the greatest of hypocrisy they have repeatedly professed to cherish; they have created “America…The Lawless State” a nation dictated to by a fear-invoking choking Fascist modelproducing a true Imperial Presidency ,a  Vice Presidential parallel shadow government and a virulent contagious infection of popular complacency, resignation, apathy, and enabling citizen impotence. We are seen as a nation devoid of any Moral Compass.

Cowering in fear, massaged into acceptance, as fact, that principles cannot be advanced for fear of reprisal and the socially isolating labels of “unpatriotic” and “treasonable”, ostracized from any meaningful change agent role by media accomplice silence and demonizing tags of dismissive derision, the Peace and Impeachment Movements have been relegated to the descriptor of “That bunch of ragged old weekend street theater players”, unable to muster the massive street upheaval called for to bring the Bush Bunch to justice; the movements languish near demise their pleas been heard only as whimpering.  

Even recent memo revelations and higher level testimony is under cut by the now inherent belief and climate of acquiescence, that nothing substantive will be accomplished as regards true accountability; that thought much of the truth may be now revealed, the guilty will be shielded in non-prosecution by variances of amnesty, immunity and defacto pardon…that we shall be given “Truth Without Consequences” and the world view of a United States that holds itself and its leaders to be above the law, exemplary by ego  exclusion and exemption shall be only fortified. Though the words of President Obama may seem to hold out the balm of relief; deeds will ultimately determine the attitude and judgment of the world, and yes the judgments of both the citizens of this nation and the pages of history.

A judgment that determines that the American people had neither the courage of convictions nor the will for the necessary confrontation for change and justice exemplified by the America of the 60s and the class of Sam Adams, Thomas Jefferson, Patrick Henry, George Washington and Caesar Rodney will write a page of disgrace and contempt.  Worse than the record will surely be the result! We speak frequently of that which we bequeath to future generations. We are on the brink of bequeathing a failed nation with a perverted history and surrender, surrender to those who dared us to do something about them, and we did nothing but talk, walk and whine.

When one discards all of the wailing, buzz word attacks and feverish rhetorical  savaging of the Bush Administration; all well and accurately deserved; one is left with the incontrovertible fact that the Bush Administration, among its most malignant, corrosive, corrupt, unprincipled, sadistically perverted well-defined policies has been the application of  LEGITIMIZED-TORTURE as a tool of “Their-War-On-Terror”, a tool consciously constructed, and for which they have gone to unbelievable horrific extra-legal lengths to validate and vindicate by institutional legalization, that which is anathema to all civilized men and women. 

Cloaking and concealing its dictates with the CIA and Blackwater operatives, black ops operations and third party other-state detention/torture facilities. It is not sufficient to root out the truth and hold it up as warning of that which never again must permitted in our names.  That constitutes a tepid scolding for killing, murder, lying, spying, genocide and torture.  Bad boy; don’t do that again or else! If you were an educator you would be taught to never tell a class that if you do this; then the consequence will be thus; because if you don’t mean it and cannot carry through; you will be a laughing stock, a failed teacher with an out-of-control class that has no respect for you and that will go on until things become so deteriorated that you are fired.  Well class….you have been calling for justice and the restoration of order and the rule of law. What are YOU going to do about it?

This final answer on my part has been prompted by an email I received from someone I respect and one who is serious of purpose and has tried valiantly to communicate the need for justice and accountability. The email reminds me of moment I had in a college class when the venerable Dr. Theodore Paulin said to the class; let Mr. Dickau speak; he’s trying to work through a pragmatic solution to this problem  Maybe there is one and maybe there is not, but let’s follow him for the moment.  The problem was one of Latin American Foreign Policy…I arrived at no pragmatic solution as there was none.  The answer was to be found in an action of right and not wrong. But let me share this…

“I take it that you are also pissed that R…. and I are taking a position of supporting the immunity of those who took orders on torture.  

Of course, I would rather just round up the whole bunch of them - top to bottom - humiliate and disgrace them thoroughly with a fair trial, then lock 'em up for life, but in reality I know how this always goes down: the lower level takes the hit one-by-one, media circus blow-by-blow, until all financial trial resources and public interest is exhausted.  And by then those who orchestrated the whole mess go scott-free.  Realistically, it seems that is our choice. But it does feel bad, compromising on principles. 

Being a veteran, maybe you can enlighten us a bit more about that.  We're just air force brats.  It seems to me, though, that given the surreal nightmarish environment of war - an environment fraught with the ever-present feeling of extreme threat - that those who necessarily are well-trained to take orders (soldiers, mid-level officers and lower ranking CIA), would be understandably well-primed to commit acts they ordinarily would never dream of doing under normal circumstances. Perspective gets lost under stress. And I believe the vast majority of those who carried out the "sanctioned" acts of torture would not have done so if they didn't believe it was legal.  They were led to believe it was legal and in most facilities the Geneva Convention was not posted (another violation).   Most rank and file today don't know any detail of the regulations of the Geneva Convention.   We need the rank and file to speak up. Open for discussion.”

I am not “pissed” as I have been there before.

I have given the matter much thought and my position is unaltered.  Yesterday afternoon only fortified my convictions.  Perhaps I would have, perhaps, more sympathy for our men and women under direct fire whose lives and limbs can be taken at any moment with all manner of bombs and bobby traps in Iraq, but a serious question was answered by primary authorities yesterday afternoon.  In conversation with recently retired military personnel, one a major another an admiral, it was made Gin clear that their Military Academy education included serious education of : “When An Officer Is Obligated To Disobey/Refuse To Follow An Order”!  That argument is therefore dismissed and officers, who participate in, condone or order wrongful actions under the Geneva Conventions must and should be held to full account…no Americanized rationalized interpretation of military field manuals with standing.

When the matter of torture at the hands of the CIA or Blackwater operatives is evaluated there is no mediating circumstance. They are in a controlled environment safe from war zone threats to person. They make conscious decisions to engage in the unlawful perversions of torture, and it seems, all too willing to engage in those practices given any feeble word of justification from Washington. That is inexcusable and beyond any circumstance that justifies the protection and forgiveness of amnesty, immunity and/or pardon.  Their acts are those conscious decision making, their choices of torture, personal selections.  They are guilty and should be held up to the fullest prosecution and punishment available under both American and International Law!

Those who have authored the documents of justification in The White House and The Justice Department are guilty of legal wrong doing to such an extent that they should be imprisoned and never permitted to act in the legal system of this country again!

This nation had full warning of the evil that Dick Cheney had brought to and perpetrated within the Bush Administration and there is no acceptable conscionable pragmatic excuse for non-prosecution of this man.  After American Civil prosecution he should be turned over and deported to The Hague to stand trial for his part in the war crimes, torture and genocide to which he has been a party.  The same holds true for George W. Bush.  It’s that old Harry Truman desktop logo: “the Buck Stops Here!”… and indeed it does.

I do not excuse as extenuating circumstances the 9/11 event, his perhaps dry-drunk impairment, limited native intelligence, native vindictiveness, perpetually lying and consistent, persistent violation of basic American law to such an extent that one must question his basic mental well-being. None of those matters.  He is guilty by every standard that governs this decision on my part!

It is found further, that Profound Egregious errors comprising willful, persistent, insistent and deliberate premeditated acts of Misfeasance, Malfeasance, Nonfeasance, dereliction of duty, and violations of freely taken oaths of office, constituting malice afore-thought, have been engaged by numerous members of the Congress Of The United States Of America warranting the request of resignations of such guilty parties, including, but not limited to: Nancy Pelosi, Steny Hoyer, John Conyers, Patrick Leahy, and that extensive Congressional investigations should be initiated immediately in the matters of all accused members related to issues of sanctioned/supported torture, illegal electronic spying, and impeding/preventing a Constitutional Impeachment proceeding against George W. Bush and Richard B. Cheney, and further, that all found complicit in any and all acts proscribed here shall be asked to resign, failing cooperation in that minimalist act of dignity and integrity that civil prosecutions be initiated to remove and imprison said members who have in open defiance of the Constitution of These United States, aided and abetted in massive acts of criminality against the people of this nation.     

References to the principles set forth in The Nuremberg Trials are not hysterical rhetoric; they are on-point and relevant to disclosures pronouncements and decisions being made on now an almost daily basis. 

Firedoglake » Will We Pass Our Nuremberg Trial, or Will We Protect ...

Holding Responsible Those Who are Responsible
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... since the Constitution makes that official the "head" of that branch of government and the election of that person, or removal by impeachment by other ..



Though I do not support the Death Penalty; I cannot escape the fact that those who live by the rules and tools of War; Shall perish by those rules and tools!”



Take Heart and Have Courage
By David Swanson

We've pushed long and hard to put accountability, impeachment, prosecution, and the restoration of congressional power on the American table, and they've all just landed with a thud and splatter of gravy and cranberry dressing. So, eat up, take heart, and prepare to work harder than we have over the past several frustrating years of path breaking and pressure building. 

Impeachment, specifically of torture memo author turned lifetime federal judge Jay Bybee ( http://impeachbybee.org ), is now supported by all the organizations that have backed impeachment of his bosses, plus: the New York Times, Chairman of the House Judiciary Subcommittee on the Constitution Jerrold Nadler, Common Cause, Think Progress, and the Courage Campaign. Local Democratic parties in California have passed resolutions and are urging the state party to do so this week requesting the impeachment of Bybee. 

The appointment of a Special Prosecutor ( http://prosecutebushcheney.org ) is now supported by all the groups that have always been there, plus the ACLU, Moveon.org, blogs including FireDogLake, and at least half-heartedly Amnesty International. On Thursday at 2:30 p.m. in Rayburn 2359, Attorney General Eric Holder (with whom Rep. Jerrold Nadler is meeting on this topic today) will testify before a subcommittee. At that time, After Downing Street, Democrats.com, ACLU, and FireDogLake will deliver petitions to Holder asking for a special prosecutor. Sign here. And go here to contact members of the subcommittee to ask them to ask Holder why, if waterboarding is torture, and if the evidence (including open admission by the former vice president) is public, and if the Convention Against Torture requires that we enforce our laws, he isn't doing so. Congress members Conyers, Nadler, and Schakowsky have spoken out in support of a special prosecutor. Ask your representative and senators to do the same! 

The AP is reporting that Obama is open to the possibility of partial enforcement of some laws and "bipartisan" Congressional investigations, and that law enforcement decisions are up to Attorney General Eric Holder. 

Spain is keeping alive its attempt to indict six members of Bush's torture team including Jay Bybee. Please phone the Spanish Embassy and thank and encourage them. 

The long suspected blackmailing of Democratic congress members to support crimes and abuses has begun to be reported as documented fact in at least the case of Rep. Jane Harman. 

The release of memos and the anticipated release of reports and additional pieces of evidence, combined with the passage of time, exacerbated by the Obama administration's efforts to shelter its predecessors is helping to build what we have been laying the foundations for over the past few years. 

There are a great many ways you can advance the cause of accountability, and they can all be found at http://prosecutebushcheney.org 

So, take heart, brothers and sisters. I know you're beaten down. I know you're disillusioned and hopebroken. I know you've worked hard, sacrificed, and willed yourselves to believe in the possibility of progress time and time again. I am telling you that I know what you've done and thank you for it and would never discount or minimize it. But movements never succeed until the opposition beats them back behind the starting line and they rise again stronger, taking the attacks and rejections as the highest form of flattery, transforming frustration into dedication and determination. 

Remember that a serious attempt at accountability is a tremendous deterrent to future crimes and abuses even if it fails. And remember that they will not tell us we are succeeding until we already have. This is the moment for action. This is the time to pressure your representatives, to work the media, to be the media, to organize your groups and friends and neighbors. This is the moment to punch a hole through the wall that has separated those of us who are subject to laws from those who have not been. This is the time, the darkest and yet most hopeful time, to do MORE than we do when things look easy. That is how we win and how all justice has always been won. 







 Pentagon Official Blames U.S. For Al-Qaida Attacks:Worked For George Soros, Argued For Government Control Of Media

She believes al-Qaida was an "obscure group" turned into a massive threat due to U.S. policies.

She’s referred to former President Bush as "our torturer in chief" and a "psychotic who need(s) treatment" while comparing Bush’s arguments for waging a war on terrorism to Adolf Hitler’s use of political propaganda.

She’s worked on behalf of George Soros’ philanthropic foundation.

Meet Rosa Brooks, the Obama administration’s new adviser to Michelle Fluornoy, the undersecretary of defense for policy, a position described as one of the most influential in the Pentagon.

"I prefer to think of (my new position) as my personal government bailout," Brooks wrote in a departing piece at the Los Angeles Times, where she served as a regular columnist.

Brooks’ new boss earlier this month briefed Congress on U.S. policy in Pakistan and Afghanistan, two countries for which she has enormous power concerning drafting future military doctrine.

"Brooks will wield an extraordinary degree of influence in helping shape U.S. policy. Her extreme views should therefore be closely scrutinized," wrote Nile Gardiner, a contributor to the London Telegraph’s online blog.

Indeed, Brook’s recent L.A. Times columns evidence views some may find concerning.

Get "Shut Up, America! How to fight the end of free speech"

In 2007, she labeled al-Qaida as "little more than an obscure group of extremist thugs, well financed and intermittently lethal but relatively limited in their global and regional political pull. On 9/11, they got lucky. … Thanks to U.S. policies, al-Qaida has become the vast global threat the administration imagined it to be in 2001."

Also that year, she called the surge in Iraqa "feckless plan" that is "too little too late" with "no realistic likelihood that it will lead to an enduring solution in Iraq." The surge was widely credited with helping to stabilize Iraq.

Brooks wrote Bush and Vice President Dick Cheney "should be treated like psychotics who need treatment. … Impeachment’s not the solution to psychosis, no matter how flagrant."

She also penned a column about Bush entitled "Our torturer-in-chief" in which she inferred attacks against the U.S. were a result of torture policies.

"Today, the chickens are coming home to roost," she fumed, but "the word ‘accountability’ isn’t in the White House dictionary."

In another column she referred to the regimes of Iran and North Korea as "foreign authoritarians," while calling the Bush administration a "homegrown" authoritarian regime.

In a column last month, Brooks claimed the Bush administration’s Office of Legal Counsel arguments for prosecuting the war on terrorism were similar to tactics used by Hitler.

According to Brooks: "How did such dangerously bad legal memos ever get taken seriously in the first place? One answer is suggested by the so-called Big Lie theory of political propaganda, articulated most infamously by Adolf Hitler. Ordinary people ‘more readily fall victim to the big lie than the small lie,’ wrote Hitler."

Last week, FoxNews.com highlighted Brook’s departing column in which she argued for more "direct government support for public media" and government licensing of the news.

Wrote Brooks: "Years of foolish policies have left us with a choice: We can bail out journalism, using tax dollars and granting licenses in ways that encourage robust and independent reporting and commentary, or we can watch, wringing our hands, as more and more top journalists are laid off."

In response, L. Brent Bozell, president of the Media Research Center, countered, "The day that the government gets involved in the news media you see the end of the democratic process, because an independent news media is absolutely essential to the success of a democracy."

Brooks is also a law professor at the Georgetown University Law Center, where she serves as director of Georgetown Law School’s Human Rights Center. She previously served as special counsel to the president at Soros’ Open Society Institute. She has consulted for Human Rights Watch and served as a board member of Amnesty International USA.


The Case For The ‘Torture Memos’ : Rightly Considered, The Memos Should Be A Source Of Pride. 

By Rich Lowry

 The debate over the just-released Justice Department memorandums on interrogation techniques ended as soon as they were dubbed the “torture memos.” Forevermore, they will be remembered as the legal lowlights of a “dark and painful chapter in our history,” as Pres. Barack Obama put it.

Rightly considered, the memos should be a source of pride. They represent a nation of laws struggling to defend itself against a savage, lawless enemy while adhering to its legal commitments and norms. Most societies throughout human history wouldn’t have bothered.

The memos cite conduct that is indisputably torture from a court case involving Serbs abusing Muslims in Bosnia: “severe beatings to the genitals, head, and other parts of the body with metal pipes and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim’s forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of ‘Russian roulette.’ ”

In contrast, we carefully parsed each of our techniques to ensure it wouldn’t cause “severe physical or mental pain or suffering.” This touchingly legalistic exercise at times took on a comic aspect. We could put a caterpillar in a box with a detainee afraid of stinging insects, Abu Zubaydah, so long as we didn’t falsely tell him the caterpillar was a threat to sting. We could put detainees in diapers so long as “the diaper is checked regularly and changed as needed to prevent skin irritation.”

The practice of “walling” was characteristic. A report of the International Committee of the Red Cross made it seem a brutish exercise involving slamming the heads of recalcitrant detainees against walls. The memos make it clear that the detainees were thrown against fake, flexible walls, with their necks swathed in towels to prevent whiplash. The point was to push their shoulder blades against the wall to make a loud, startling noise.

Not exactly Torquemada. Several of the harshest methods — sleep deprivation, stress positions, and waterboarding — could easily constitute torture, depending on their application. The tone of the press coverage makes the very act of subjecting these methods to close legal analysis seem dirty, as if the Justice Department should have come down with a case of the vapors when asked for guidance.

But there is a line somewhere between the highly restricted methods approved in the Army Field Manual for interrogation of enemy soldiers and illegal torture. The only way to find and honor that line is by lots of lawyerly analysis of practices that — in the words of Director of National Intelligence Dennis Blair — “read on a bright, sunny, safe day in April 2009, appear graphic and disturbing.”

Blair’s point is an important one — context matters. If any of these methods was used against domestic criminal suspects, it would shock the conscience. They were instead deployed against terrorists with information about their network and perhaps ongoing plots. U.S. officials have dueling obligations in such circumstances, both to abide by our laws and to protect the public. Balancing these obligations is necessarily a fraught, complicated task; it can only seem simple in retrospect, when the threat appears to have receded.

Reasonable people can disagree about whether the Bush administration succeeded in its balancing act. Waterboarding has always been the most controversial method, and it was used 183 times — in short bursts not exceeding 40 seconds — against top al-Qaeda captive Khalid Sheikh Muhammad in March 2003. Were intelligence benefits gained commensurate with the frequent resort to this method?

If we had a more mature political culture, this and other questions could be thoroughly examined by a special congressional committee. (As it happens, the CIA produced a memo on the benefits of the interrogation program that has never been released.) But such an inquiry would inevitably descend into a hyperpoliticized takedown of the CIA and the Bush Justice Department for “war crimes.” The frenzied reception of the “torture memos” is just a preview.

— Rich Lowry is the editor of National Review.


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