They Shoot Doggies, Don’t They?

Radley Balko:

In February, I wrote the following about a drug raid in Missouri:

SWAT team breaks into home, fires seven rounds at family’s pit bull and corgi (?!) as a seven-year-old looks on.

They found a “small amount” of marijuana, enough for a misdemeanor charge. The parents were then charged with child endangerment.

So smoking pot = “child endangerment.” Storming a home with guns, then firing bullets into the family pets as a child looks on = necessary police procedures to ensure everyone’s safety.

Just so we’re clear.

Now there’s video, which you can watch below. It’s horrifying, but I’d urge you to watch it, and to send it to the drug warriors in your life. This is the blunt-end result of all the war imagery and militaristic rhetoric politicians have been spewing for the last 30 years—cops dressed like soldiers, barreling through the front door middle of the night, slaughtering the family pets, filling the house with bullets in the presence of children, then having the audacity to charge the parents with endangering their own kid. There are 100-150 of these raids every day in America, the vast, vast majority like this one, to serve a warrant for a consensual crime.

But Jonathan Whitworth won’t be smoking that pot they found in his possession. So I guess this mission was a success.

Mike Riggs at Daily Caller:

Daily Tribune reporter Brennan David submitted a public information request for the video immediately after the charges were filed in February and was denied because the video was being used in criminal proceedings. “I knew that SWAT video was available and that SWAT teams use video. The deputy chief told me that he had watched it a few times,” David said.

He requested the video again after Whitworth pleaded down to possession of paraphernalia and paid the possession fine earlier this month. David says his request was granted within 72 hours and that it does not show the corgi being shot.

Columbia PD spokeswoman Jessie Haden told David on Monday that an ongoing investigation of the use of firearms inside an occupied home is “expected to be completed within the next two weeks,” and that “Internal Affairs is conducting the review because the incident involved multiple shots and was inside an occupied residence. This allows Internal Affairs sergeants to review the incident independent from the SWAT command.”

According to the Tribune’s first report in February, “SWAT members encountered a pit bull upon entry, held back and then fatally shot the dog, which officers said was acting in an uncontrollably aggressive manner.”

John Cole:

This is what happens when you give a bunch of cowboy assholes heavy weapons and fill them with a God complex. Although I’m sure Joe Lieberman would suggest we strip this family of their citizenship.

Oddly enough, I doubt the tea partiers screaming about individual liberty will notice this. After all, it isn’t like the cops were going to raise their taxes or provide them with affordable healthcare coverage. They were just shooting his dogs in front of his family and then made up some bullshit excuse to try to take away the kid. No big deal.

Mark Thompson at The League:

What is so remarkable about this video is precisely that it is so unremarkable, depicting something that happens up to 40,000 times a year.  Indeed, perhaps nothing proves how common this is more than the calm, cool, and thoroughly routine manner in which the agents of tyranny carry out their task, quickly disposing of the family dogs (one of which was a corgi) and filling the victim’s home with bullets within, literally, moments.  All in front of what looks to be the victim’s six or seven year old son.

The cops did recover a “small” amount of marijuana though, which was apparently enough to charge the parents with child endangerment.  Somehow, the people who riddled that child’s home with bullets, killed that child’s pets, and forcibly removed that child’s father – all while the child was looking – were not charged with child endangerment.

When the government has the right to bust into tens of thousands of homes in the middle of the night, unannounced, with guns drawn and in full military armor, to take the life of beloved family members, and to menace 6-year old children, all because the homeowner is believed to possess a few grams of a plant or a non-explosive substance, tyranny cannot be said to be on the way.  It’s already here.  And President Obama wasn’t the one who created it, either.

I will believe that conservatives and the American Right view the words “liberty” and “tyranny” as something other than politically effective platitudes when they make putting an end to 40,000 raids like this a year a higher priority than whether they are taxed to provide someone else with health care or the unrealized hypothetical consequences of cap and trade.

Tim Lynch at Cato:

In America today, lawmaking is discussed much too casually.  The consequences are not seriously considered.  We allow agencies to issue regulations without having a formal vote in the legislature.  “Too cumbersome.”  Compliance is automatically assumed.  Few want to consider whether the use of brute force can be justified against someone who resists, or the danger that might be created for the innocent who get swept up in investigations.   We now have thousands of rules and regulations on the books.

We suffered through the painful lessons of liquor prohibition, but have been slow to see the parallels in the drug war.  A few years ago, Cato published a report on these paramilitary raids, called Overkill. The author of that study, Radley Balko, has been vigilant about highlighting these raids and dispelling the idea that they are just a few “isolated incidents.”

Conor Friedersdorf at The American Scene:

The longer I’m around, and the more I despair about movement conservatism as a whole, the more I’m impressed by two right-leaning organizations, Cato and Reason, for bankrolling the important work done by Mr. Balko, Julian Sanchez on surveillance, and other staffers too numerous to mention here, whose output I don’t just respect, but judge to be vital. The same goes for the Institute for Justice’s work on asset forfeiture, and a few other organizations on the right whose work often overlaps with left-leaning folks at the ACLU and similar organizations.

Health care and cap and trade are important issues, and the policy choices made do have implications for personal and political freedom, but one effect of demagoguery about “liberty and tyranny,” and the supposed embrace of statism by the whole left, is that it obscures or even poisons alliances between right and left against actual abuses that are going on now, and all that is gained are cheap, largely inconsequential political points on issues that at most concern predicted abuses at the end of a slippery slope that we aren’t yet careening down.

I don’t know if Brink Lindsey and Will Wilkinson can succeed at their very-much-worth-trying liberaltarian project, but I wish that one way or another, liberty-minded folks on right and left can refrain from demonizing one another about their disagreements enough to cooperate on drugs, prison, detainee policy, and all other matters related to wars without end.

Von at Obsidian Wings:

Put aside the wisdom or morality of the drug war.  Balko and Sullivan both pivot that way.  I want to talk about something different.  Something a bit larger.  Folks talk about the banality of evil.  It’s one of those cliches that you hear from time time.  But I don’t think that folks stop very often to think about what that phrase means.  Or what it looks like in action.  Evil becomes banal when people — good people — stop recognizing it, stop appreciating it, and come to accept it as normal.  When evil becomes so routine that good people accept it as the way of doing business.

I am not comparing the cops in the video to Nazis (whence the phrase comes).  But it’s hard for me to see their actions, here, as anything other than evil.  Maybe I’m overly influenced by having kids; maybe I’m not thinking straight.  But my reaction to watching these cops, dressed to kill, bashing down a door and shooting two dogs (a pit bull and a corgi) in front of a seven year old child all because his father had a little bit of pot … well, my initial reaction was shock.  This video literally took my breath away.  Followed, quickly, by anger.  This kid could easily have been killed for nothing; he certainly will be scarred.

The second greatest trick the Devil ever played was to convince folks that being good, and having good intentions, means that you can’t do evil.  That is bullshit.  These cops are likely good people who do a lot of good in their community. But this was a cheorographed raid.  They had overwhelming force.  There was no resistance.  This wasn’t a war.  They weren’t being shot at.  The target was clear.  Their acts were premeditated.  This wasn’t stupidity, or error, or chance.  No conceivable hypothetical — no matter how outlandish — justifies the behavior of these men. There was no ticking time bomb.  (They were simply looking for “a large amount of marijuana at the location.” Which wasn’t there.)

This is what evil looks like.  On this night, these cops decided to be thugs.

Mark Kleiman

Andrew Sullivan

Megan McArdle:

This is our nation’s drug enforcement in a nutshell.  We started out by banning the things.  And people kept taking them.  So we made the punishments more draconian.  But people kept selling them.  So we pushed the markets deep into black market territory, and got the predictable violence . . . and then we upped our game, turning drug squads into quasi-paramilitary raiders.  Somewhere along the way, we got so focused on enforcing the law that we lost sight of the purpose of the law, which is to make life in America better.

I don’t know how anyone can watch that video, and think to themselves, “Yes, this is definitely worth it to rid the world of the scourge of excess pizza consumption and dopey, giggly conversations about cartoons.”  Short of multiple homicide, I’m having trouble coming up with anything that justifies that kind of police action.  And you know, I doubt the police could either.  But they weren’t busy trying to figure out if they were maximizing the welfare of their larger society. They were, in that most terrifying of phrases, just doing their jobs.

And in the end, that is our shame, not theirs.

Kevin Drum:

CPD Internal Affairs continues to investigate whether this was an appropriate response to the “tip” they received that started all this.

UPDATE: Radley Balko at Reason

E.D. Kain

John Cole

Dan Riehl

UPDATE #2: Scott Horton at Harper’s

Mr. Subpoena Risen, Mr. Subpoena Risen, Gotta Subpoena Risen

Charlie Savage at NYT:

The Obama administration is seeking to compel a writer to testify about his confidential sources for a 2006 book about the Central Intelligence Agency, a rare step that was authorized by Attorney General Eric H. Holder Jr.

The author, James Risen, who is a reporter for The New York Times, received a subpoena on Monday requiring him to provide documents and to testify May 4 before a grand jury in Alexandria, Va., about his sources for a chapter of his book, “State of War: The Secret History of the C.I.A. and the Bush Administration.” The chapter largely focuses on problems with a covert C.I.A. effort to disrupt alleged Iranian nuclear weapons research.

Mr. Risen referred questions to his lawyer, Joel Kurtzberg, a partner at Cahill Gordon & Reindel L.L.P., who said that Mr. Risen would not comply with the demand and would ask a judge to quash the subpoena.

“He intends to honor his commitment of confidentiality to his source or sources,” Mr. Kurtzberg said. “We intend to fight this subpoena.”

Hamilton Nolan at Gawker:

The government has subpoenaed New York Times reporter James Risen, asking him to reveal the secret sources he used in his book about the Bush Administration and the CIA. Meaning James Risen could be the next Judy Miller.

Not Judy Miller in the sense of being a government patsy; Judy Miller in the sense of sitting in jail in order to protect sources. According to the NYT, the government wants to know who Risen’s sources were for his reporting on “the C.I.A.’s effort to disrupt Iranian nuclear research;” Risen has a lawyer and plans to fight the subpoena, and presumably would go to jail to protect his sources. (This has happened to him before). The Obama administration, disappointing the free press once again! At least James Risen knows Bill Keller will keep his commissary account full.

Jesse Walker at Reason:

The lead prosecutor in the case is William Welch II, the same man heading up the prosecution of NSA whistleblower Thomas Drake for another set of Bush-era leaks. So I’ll just quote the same Julian Sanchez post that I cited when Drake was the case du jour:

the contrast [with] the non-reaction to other forms of lawbreaking makes the standard in effect for Bush-era misdeeds clear: If you illegally gathered information on members of the public, Obama’s DOJ would rather let sleeping dogs lie. If you illegally tried to get information to the public, you’d better lawyer up. From Main Justice to Fort Meade, message received.

Ed Morrissey:

The chapter dealt with a clumsy attempt at disinformation from the CIA in February 2000. The agency had hoped to derail Iranian research into nuclear weapons by surreptitiously giving them designs with flaws that would have rendered the devices impotent.  Unfortunately, the Russian scientist who was supposed to give Tehran the plans found the flaws so obvious that he needed to correct them in order to maintain his own credibility.  Just as unfortunately, no one knows whether the Iranians had figured out that the Russian scientist at the center of the plot was working for the CIA prior to the publication of Risen’s book, which the Times notes in this report.

The Bush administration got a subpoena in January 2008, but Risen stalled until after the election.  He may have presumed that Barack Obama would not force his testimony on the matter, a perhaps reasonable assumption given the tacit support Senator Obama had expressed for Risen’s other exposés noted by the Times in this report.  Instead, Eric Holder pursued a new subpoena — and now Risen has to either testify about his sources or go to jail for contempt of court.

Earlier this week, I covered a controversy about California’s shield law and noted that journalists have to protect sources in order to report effectively.  I also argued that an exception should be made for national-security matters, given the nature of those efforts and the need to keep our tactics and assets from public exposure.  Those who see wrongdoing within the system have other channels to use — either through the chains of command, or by going to Congress.  This case, though, has the complication that the incident reported by Risen had been brought to Congress, which declined to act on it.  Still, the leaker chose a rather uncourageous method of dealing with the failure; he or she could have made this information public and borne the consequences of breaking the laws on confidentiality for this material and putting the life of a CIA source at risk.

Overall, the White House and the DoJ made the right decision to enforce those laws through this subpoena.

Glenn Greenwald:

I’m not convinced that the real motive, as Horton suggests, is to conceal ineptitude.  I think it’s broader than that:  to send a signal that the Greatest Crime one can commit is allowing breaches in the Absolute Wall of Secrecy that surrounds the public/private Surveillance and National Security State.  If Obama has definitively demonstrated anything, it’s his commitment to preserving and even fortifying this wall (that’s what the promiscuous assertions of the State Secret privilege are about).  One of the very few ways we learn about anything that happens in that realm is through conscientious whistle-blowers leaking what they know to journalists and others.  Hence, the Obama DOJ wants to snuff out the possibility that any light will be shined on what is done through this method.

For any Democrat or progressive who wants to defend the issuance of this Subpoena, I have a question for you:  when this controversy first arose in early 2008, did you defend the issuance of the very similar subpoena to Risen by the Gonzalez/Mukasey DOJ?  If not, why not?  What’s the difference?  “Pragmatism” is not an answer.

Gabriel Schoenfeld at The Weekly Standard:

What gives? Is the president now unaccountably reversing field and waging a war on the American press? Or do we have here, finally, a recognition that the revelation of secrets, particularly those involving ongoing classified intelligence programs, can place us all at risk?

Scott Horton at Harper’s:

A 1960 congressional committee looking into the nation’s security classifications called secrecy “the first refuge of incompetents.” It was obvious even then that national-security classifications are often used to protect government officials from having their stupidities exposed. There may be cases when it serves the public interest in national security to keep mistakes under wraps. But mistakes that are kept secret are more likely to be repeated, and those who commit them are more likely to advance to positions in which they can do more costly damage. The passages of the Risen book that are now being scrutinized by prosecutor Welch expose just that sort of embarrassingly inept behavior. The public’s security was in this case plainly served by disclosure, and the prosecution that is apparently being mounted is another gallant defense of the government’s right to keep its inept conduct secret not from foreign enemies but from the American public. Such steps make us dumber, weaker, and less safe.

UPDATE: Gabriel Schoenfeld at Daily Beast 

The Blog Posts Of Henry Kissinger

Peter Kornbluh at Politics Daily:

On the morning of Sept. 21, 1976, former Chilean foreign minister Orlando Letelier and two young colleagues drove to work in the scenic Washington neighborhood known as Embassy Row. As Letelier’s Chevrolet Chevelle passed the residency of the Chilean ambassador and rounded Sheridan Circle, a bomb placed under the driver’s seat by agents of the Chilean secret police detonated. Letelier, a vocal critic of Chilean dictator Augusto Pinochet, died at the scene. His 26-year-old colleague, Ronni Karpen Moffitt, bled to death from a shard of metal that struck her jugular vein. Her husband, Michael Moffitt, was blown out the back window of the vehicle and survived.

Now, a newly declassified cable from then-Secretary of State Henry Kissinger sheds more light on the action, and lack of action, taken by the U.S. government in the days leading up to that act of international terrorism in the capital city of the United States.

Five days before the Letelier-Moffitt assassination, Kissinger called off a planned warning to Pinochet and other South American military leaders against orchestrating “a series of international murders” of their opponents around the globe.

The secretary “has instructed that no further action be taken on this matter,” stated a September 16, 1976 cable sent from Africa, where Kissinger was traveling, to his Assistant Secretary of State for Inter-American affairs, Harry Shlaudeman back in Washington. Using identical language, Shlaudeman passed on these instructions four days later to his deputy to be transmitted to U.S. ambassadors in Chile, Argentina and Uruguay.

That communication was obtained by The National Security Archive, a public interest research center specializing in the Freedom of Information Act and declassified documentation on U.S. foreign policy. The document and others previously obtained under the FOIA by the Archive have reopened a 34-year-old controversy about what Kissinger’s office and the CIA knew about “Operation Condor” — a clandestine rendition and assassination program among the Latin American military regimes led by Pinochet’s Chile.

The Kissinger communique, for the first time, ties the former secretary of state to a decision to withdraw a warning to Chile and its co-conspirators against international political assassination. But the documents offer few clues that would explain why Kissinger called off diplomatic pressure that, if delivered in a timely fashion, might have deterred the Washington, D.C., car bombing.

An inquiry to Kissinger’s spokesperson was not answered.

Jeff Kaye at Firedoglake:

According to a cable to FBI headquarters from FBI agent Robert Scherrer, who previously had worked with Paraguayan police in intelligence gathering on leftists, Operation Condor was work of “cooperating services in South America in order to eliminate Marxist terrorists and their activities in the area…. Chile is the center for Operation Condor, and in addition it includes Argentina, Bolivia, Paraguay and Uruguay. Brazil has also tentatively agreed to supply input for Operation Condor.”

Scherrer, who later captured Letelier and Moffitt’s killer, continued:

A third and more secret phase of Operation Condor involves the formation of special teams from member countries to travel anywhere in the world to non-member countries to carry out sanctions, [including] assassination, against terrorists or supporters of terrorist organizations from Operation Condor member countries. For example, should a terrorist or a supporter of a terrorist organization from a member country be located in a European country, a special team from Operation Condor would be dispatched to locate and surveil the target. When the location and surveillance operation has terminated, a second team from Operation Condor would be dispatched to carry out the actual sanction against the target. Special teams would be issued false documentation from member countries of Operation Condor.

According to a 2005 BBC story, greater documentary evidence came to light in 1992, thanks to the chance discovery of a Paraguayan judge. “The archives counted 50,000 persons murdered, 30,000 “desaparecidos” and 400,000 incarcerated” (link).

The participation of U.S. military and intelligence agencies in facilitating Condor have been slow to surface, but there are some. In October 1978, a State Department cable from U.S. Ambassador to Paraguay Robert White, to Secretary of State Cyrus Vance, noted that the intelligence chiefs in Condor kept in touch with each other through encrypted messages sent through keep in touch with one another through “a U.S. communications installation in the Panama Canal Zone which covers all of Latin America.” White told Vance that since “there is [a] likelihood Condor will surface during Letelier trial in the U.S…. it would seem advisable to review this arrangement to insure that its continuation is in U.S. interest.”

Further declassifications of the Scherrer memo have shown that the Pentagon had quite detailed information about the mobilizations behind Condor operations.

Charles Johnson at Little Green Footballs

Matthew Yglesias:

The fact that this stayed classified for so long is yet another data point for the principle that we have far too much formal government secrecy in the United States. Recently there’s been a lot of emphasis on “transparency” in things like fundraising, earmarks, etc. And that’s all to the good. But the most important powers of the government are the life-and-death powers wielded by the national security establishment and they remain largely shrouded in secrecy. What operational danger would revealing the truth about this cable have created for the United States? It was just a decades-long effort to help Kissinger and the Ford administration evade democratic accountability for their policies.

Ken Silverstein at Harper’s:

You’d think that might merit a little bit of news pick-up and outrage. But so far most major outlets have ignored or downplayed the story. On Sunday, the Washington Post ran a short version of the AP story. It probably helps that Kissinger has had so many close friendships over the years with top Post editors and executives.

Scott Horton at Harper’s:

In 2001, former Harper’s Washington editor Christopher Hitchens published the essential facts in “The Case Against Kissinger,” describing the essential role that Kissinger played in the events that brought Pinochet to power and held him there. Kissinger’s relationship to “Operation Condor” is discussed at some length.

A “Condor” team also detonated a car bomb in downtown Washington, D.C., in September 1976, killing the former Chilean foreign minister, Orlando Letelier, and his aide, Ronni Moffitt. United States government complicity has been uncovered at every level of this network. It has been established, for example, that the FBI aided Pinochet in capturing Jorge Isaac Fuentes de Alarcon, who was detained and tortured in Paraguay, then turned over to the Chilean secret police and “disappeared.” Astonishingly, the surveillance of Latin American dissident refugees in the United States was promised to “Condor” figures by American intelligence.

As Hitchens notes, “a rule of thumb in Washington holds that any late disclosure by officialdom will contain material that is worse than even the cynics suspected.” The new documents clearly put Kissinger close to the scene of the crime, with greater knowledge and a more readily discernible wink to the assassination squads than even many of his enemies imagined. There is almost certainly more yet to come. In the meantime, Kissinger continues to face the prospect of arrest and prosecution when he travels abroad.

Chris Floyd at Empire Burlesque:

Poor old Henry Kissinger. All that botheration, all those lies, all the years of gut-churning anxiety about scandal, even prosecution — and for what? Mere complicity in state murder of foreigners carried out by a foreign government? Why, nowadays, we have U.S. presidents openly ordering the murder of American citizens, and nobody bats an eye. There is no scandal, no prosecution — there is not even any debate. It’s just a fact of life, ordinary, normal, unchangeable: the sun rises in the east, cows eat grass, rain is wet, American presidents murder people. What’s the big deal?

Anyway, thank God good old Hank is still with us, and that this honorable public servant has lived to see the day when honorable public servants (and so are they all, all honorable public servants) no longer have to worry about the petty snares of law as they go about their sacred duty of keeping us safe.

How Do You Solve A Problem Like Diem, I Mean, Karzai?

Max Fisher at The Atlantic with a round-up

Max Boot at Commentary:

Hamid Karzai is at it again. For the second time in recent days, he has lashed out at the West, blaming foreign officials for election fraud and even reportedly threatening to join the Taliban if there is any erosion of his country’s sovereignty. Such comments — coming from the man who benefitted from election fraud and who is able to stay in power only because of all the military assistance he receives from the West — are, no doubt about it, infuriating. But they are hardly unexpected, given that Karzai has a habit of boiling over in public right after he has been pressured by the United States, which is what happened when President Obama visited Kabul.

[…]

Bottom line: we don’t have any choice but to work with Karzai. Pulling U.S. troops out because we’re unhappy with him isn’t an option; our forces aren’t there as a favor to Karzai but to prevent a Taliban takeover that would be far worse for our interests than anything Karzai is likely to do in office. There is also no realistic chance of getting a new Afghan president anytime soon because Karzai was just elected to a five-year term. So we have to make the best of the current situation and try to soothe the sensitive Karzai rather than getting his back up with high-handed reprimands, especially in public.

Spencer Ackerman:

On the presumption that Karzai is being accurately quoted — something his spokesman denies — this is starting to fall into some I-wish-a-motherfucker-would territory. A failed attempt at a power-grab calling the integrity of the next government into question leads Karzai to bandwagon with the Taliban? That’s like the guy at the Burger King angrily swearing that if he accepts my expired coupon he’ll be left with no choice but to give me unlimited refills. Let the Omar-Karzai negotiations begin! Can we throw in Ahmed Wali Karzai and a couple draft picks?

The governance effort in the south is about strengthening sub-national governance and creating credible, deliverable reachback to the ministries. Whether by design or by default, the effect is that it balances/reduces Karzai’s influence while bolstering the stuff he was supposed to be doing anyway in terms of making a material impact on Afghan lives. Obviously it’s a strategy that has its limits: Karzai still governs the country, appoints ministers, etc. (To say nothing of what sub-national governance means in an area, for instance, in which people self-identify as Taliban.)

He successfully stole an election — that should be a decisive verdict on his interest in a well-run Afghanistan. To the extent the U.S. has no choice but to stick with him, the current strategy of caring more about sub-national governance than Kabul governance for immediate-to-medium-term impact has its merits. It wouldn’t be such a terrible thing to dial down tensions, but if Karzai is just going to brazenly walk back his walkbacks, then it’s sort of pointless.

Daniel Foster at The Corner:

Karzai’s Really, Really Bad Joke

Or, let’s hope it was a joke, anyway

Michael Rubin at The Corner:

Daniel, don’t forget that Karzai was once with the Taliban (see page 2 of this declassified PDF document).

In recent weeks, the press has focused on Iraqi politician Ahmad Chalabi’s relationship with the Iranians and Afghanistan president Hamid Karzai going off the rails and threatening to join the Taliban. The press did not focus on — but could have — Iraqi president Jalal Talabani’s meetings in Iran last week, and Iraqi politician Ayad Allawi’s embrace of Syrian president Bashar al-Assad earlier last month.

Too many policymakers, I’d argue, have not seen the forest through the trees. With any of these folks, it’s easy to say that the CIA or Pentagon or State Department simply got them wrong. That logic is too simple. All of these politicians pivot to maximize their own power and ally themselves with whomever they see as the dominant power. Previously, that was us. Now, it’s either Tehran or Damascus (in Iraq’s case) or the ISI’s Islamabad (in Karzai’s case). Karzai’s move comes not only amidst U.S. pressure to reform, but also after the success of Hillary Clinton’s so-called “strategic dialogue” with Pakistan. Behind all the self-congratulatory backslapping of the Obama administration and its fans in the press was a fact which Karzai certainly noticed — the White House acknowledged and legitimized Pakistan’s dominant role in Afghanistan.

Patrick Pexton at National Journal:

Karzai clearly wants to portray himself as the strong man in the face of increased foreign troop presence in his own country and steady western pressure on him to run a cleaner, more effective government. But he often seems like he’s playing a double game. On March 10 he hosted Iran’s President Mahmoud Ahmadinejad, just hours after Defense Secretary Robert Gates had departed Kabul. What do we do about Karzai? On the one hand, he is beginning to fit the stereotype of the U.S.-backed corrupt foreign leader, i.e. Ngo Dinh Diem or Nguyen Cao Ky in Vietnam, Somoza in Nicaragua, or a host of others. On the other hand, he has a point: Whose country is Afghanistan anyway, theirs or ours? Can Obama execute his strategy in Afghanistan with Karzai? What should be the U.S. posture toward Hamid Karzai and his Afghanistan government?

Scott Horton at Harper’s:

The entire situation looks painfully like the one that confronted John F. Kennedy in the last weeks of his administration in dealing with Vietnamese president Ngo Dinh Diem. President Diem was instinctively authoritarian and corrupt, relying heavily on his extended family and allowing them to enrich themselves on the basis of his authority. Government contracts, including contracts that funneled U.S. assistance, were a substantial part of the graft problem. Ultimately, the Kennedy Administration appears to have concluded that Diem was too corrupt and incompetent to be an effective ally, and the Americans turned on him. Learning that the South Vietnamese army was plotting a coup, the Americans apparently gave the effort a green light. Diem was toppled, and he and his brother were shot and buried in a grave next to the ambassadorial residence of Henry Cabot Lodge in the first days of November 1963. Kennedy was himself assassinated only three weeks later, but the toppling of Diem was one of the events that triggered a change in policy ultimately leading to a heavy escalation of the U.S. military presence in Vietnam. The American effort in Vietnam was consistently crippled by the impression that the Saigon government was a weak American proxy, lacking legitimacy to rule.

The legitimacy of the government in Kabul is essential to the success of the allies’ military operations there. Karzai thus presents a particularly thorny problem. He is widely viewed as corrupt and ineffective, but to some extent the United States has contributed to that problem and that perception. And removing and replacing Karzai through extraordinary measures would likely only make the situation still worse. Karzai is Afghanistan’s elected president, and American policymakers need to accept that fact.

Daniel Korski at The Spectator

Amy Davidson at The New Yorker

Fred Kaplan at Slate:

The issue here is not Karzai’s peevishness or ingratitude. The issue is whether, under the circumstances, a counterinsurgency campaign can work—whether we’re wasting lives and money.

One key question, which U.S. officials are exploring, is whether this rupture with Karzai can be mended. Some officials cite a chronology of events that suggests we may have (unwittingly) sent him off the deep end and that, therefore, we might be able to calm him back down.

[…]

It may be time for Obama to send Sen. John Kerry back to Kabul for another half-dozen meetings with Karzai, over 300 more cups of tea, as he did last October, when he persuaded the Afghan president to hold a second round of elections after the first round was proved to be so rigged.

Maybe Kerry can pamper Karzai with recitations of reassurances. If not, there’s trouble ahead. Obama could threaten to pull out of Afghanistan if Karzai doesn’t straighten up, but Karzai would surely see this as a bluff and might call it. Then what? If Obama really sees his commitment as vital to U.S. interests (and he wouldn’t have ordered the escalation if he didn’t), then he’s not likely to take the gamble.

Another option is to go around Karzai’s authority and deal more with Afghanistan’s provincial governors and tribal elders. This has been part of Obama’s plan all along. Last November, shortly before announcing his new strategy, Obama said in an ABC-TV interview that he and his advisers were focusing on “not just a national government in Kabul but provincial government actors that have legitimacy in the right now.”

Gerard Russell, a former U.N. official in Kabul (who is now at Harvard’s Carr Center for Human Rights Policy), said in a phone interview Monday that the Western coalition is pursuing this approach to some extent. The ongoing military operation in Helmand province has elevated the power of some independent Afghans there, at the expense of Karzai’s people.

However, Russell added, there are risks to going around Karzai as the centerpiece of a strategy. “Karzai is very good at this sort of thing,” Russell said. “He could undermine these regional governors if they get too powerful.”

Wonkette:

Former UN envoy Peter Galbraith just said on MSNBC that Afghanistan’s weirdo president, Hamid Karzai, is a junkie. “He can be very emotional, act impulsively,” Galbraith said on the Andrea Mitchell show. “In fact, some of the palace insiders say that he has a certain fondness for some of Afghanistan’s most profitable exports.” Ha ha, you should’ve seen the look on Chuck Todd’s face.

UPDATE: Spencer Ackerman

Ben Smith at Politico, here and here

Daniel Larison

Mayer v. Thiessen: The Left Sphere Sings “Sweet Jane”

Jane Mayer at New Yorker:

On September 11, 2006, the fifth anniversary of Al Qaeda’s attacks on America, another devastating terrorist plot was meant to unfold. Radical Islamists had set in motion a conspiracy to hijack seven passenger planes departing from Heathrow Airport, in London, and blow them up in midair. “Courting Disaster” (Regnery; $29.95), by Marc A. Thiessen, a former speechwriter in the Bush Administration, begins by imagining the horror that would have resulted had the plot succeeded. He conjures fifteen hundred dead airline passengers, televised “images of debris floating in the ocean,” and gleeful jihadis issuing fresh threats: “We will rain upon you such terror and destruction that you will never know peace.”

The plot, of course, was thwarted—an outcome that has been credited to smart detective work. But Thiessen writes that there is a more important reason that his dreadful scenario never came to pass: the Central Intelligence Agency provided the United Kingdom with pivotal intelligence, using “enhanced interrogation techniques” approved by the Bush Administration. According to Thiessen, British authorities were given crucial assistance by a detainee at Guantánamo Bay who spoke of “plans for the use of liquid explosive,” which can easily be made with products bought at beauty shops. Thiessen also claims that Khalid Sheikh Mohammed, the primary architect of the 9/11 attacks, divulged key intelligence after being waterboarded by the C.I.A. a hundred and eighty-three times. Mohammed spoke about a 1995 plot, based in the Philippines, to blow up planes with liquid explosives. Thiessen writes that, in early 2006, “an observant C.I.A. officer” informed “skeptical” British authorities that radicals under surveillance in England appeared to be pursuing a similar scheme.

Thiessen’s book, whose subtitle is “How the C.I.A. Kept America Safe and How Barack Obama Is Inviting the Next Attack,” offers a relentless defense of the Bush Administration’s interrogation policies, which, according to many critics, sanctioned torture and yielded no appreciable intelligence benefit. In addition, Thiessen attacks the Obama Administration for having banned techniques such as waterboarding. “Americans could die as a result,” he writes.

Yet Thiessen is better at conveying fear than at relaying the facts. His account of the foiled Heathrow plot, for example, is “completely and utterly wrong,” according to Peter Clarke, who was the head of Scotland Yard’s anti-terrorism branch in 2006. “The deduction that what was being planned was an attack against airliners was entirely based upon intelligence gathered in the U.K.,” Clarke said, adding that Thiessen’s “version of events is simply not recognized by those who were intimately involved in the airlines investigation in 2006.” Nor did Scotland Yard need to be told about the perils of terrorists using liquid explosives. The bombers who attacked London’s public-transportation system in 2005, Clarke pointed out, “used exactly the same materials.”

Thiessen’s claim about Khalid Sheikh Mohammed looks equally shaky. The Bush interrogation program hardly discovered the Philippine airlines plot: in 1995, police in Manila stopped it from proceeding and, later, confiscated a computer filled with incriminating details. By 2003, when Mohammed was detained, hundreds of news reports about the plot had been published. If Mohammed provided the C.I.A. with critical new clues—details unknown to the Philippine police, or anyone else—Thiessen doesn’t supply the evidence.

Jason Linkins at Huffington Post

Scott Horton at Harper’s:

Thiessen makes no bones about the fact that his aim is to show the central role played by the CIA and its use of torture techniques in keeping the country safe during the Bush stewardship. He says he was introduced to the subject when he got the task of drafting a speech that Bush ultimately delivered in September 2006, closing down the black site system and acknowledging use of what the Bush team called “enhanced interrogation techniques,” but offering a robust swan-song defense of what had been done. Thiessen says he relied heavily on information furnished by Michael McConnell—Bush’s national intelligence tsar. But Mayer quickly zeroes in on the information gap that this sets up:

Courting Disaster has a scholarly feel, and hundreds of footnotes, but it is based on a series of slipshod premises. Thiessen, citing McConnell, claims that before the C.I.A. began interrogating detainees the U.S. knew “virtually nothing” about Al Qaeda. But McConnell was not in the government in the years immediately before 9/11. He retired as the director of the National Security Agency in 1996, and did not rejoin the government until 2007. Evidently, he missed a few developments during his time in the private sector, such as the C.I.A.’s founding, in 1996, of its bin Laden unit—the only unit devoted to a single figure. There was also bin Laden’s declaration of war on America, in 1996, and his 1998 indictment in New York, after Al Qaeda’s bombing of two U.S. embassies in East Africa. The subsequent federal trial of the bombing suspects, in New York, produced thousands of pages of documents exposing the internal workings of Al Qaeda. A state’s witness at the trial, a former Al Qaeda member named Jamal al-Fadl, supplied the F.B.I. with invaluable information about the group, including its attempts to obtain nuclear weapons.

Thiessen insists that techniques that have been viewed as torture since the time of the Inquisition—such as waterboarding, the strapado, and hypothermia—are miraculously transformed into something milder and less offensive in the hands of the CIA. And he struggles to present the CIA’s use of torture techniques as an unqualified success. For instance, he insists that the CIA’s practices had nothing to do with the disaster at Abu Ghraib, but Mayer catches him up in another falsehood:

Courting Disaster downplays the C.I.A.’s brutality under the Bush Administration to the point of falsification. Thiessen argues that “the C.I.A. interrogation program did not inflict torture by any reasonable standard,” and that there was “only one single case” in which “inhumane” techniques were used. That case, he writes, involved the detainee Abd al-Rahim Nashiri, whom a C.I.A. interrogator threatened with a handgun to the head, and with an electric drill. He claims that no detainee “deaths in custody took place in the C.I.A. interrogation program,” failing to mention the case of a detainee who was left to freeze to death at a C.I.A.-run prison in Afghanistan. Referring to the Abu Ghraib scandal, Thiessen writes that “what happened in those photos had nothing to do with C.I.A. interrogations, military interrogations, or interrogations of any sort.” The statement is hard to square with the infamous photograph of Manadel al-Jamadi; his body was placed on ice after he died of asphyxiation during a C.I.A. interrogation at the prison. The homicide became so notorious that the C.I.A.’s inspector general, John Helgerson, forwarded the case to the Justice Department for potential criminal prosecution. Thiessen simply ignores the incident.

Andrew Sullivan:

Thiessen makes the usual – totally untrue – statements: that the methods seen at Abu Ghraib had nothing to do with the actions authorized by Cheney, Bush and Rumsfeld (the Senate Committee begs to differ; that only one victim was subject to “inhumane” treatment – a fact denied by both the Red Cross, by countless witnesses, by photographs that were somehow not destroyed by the government, and by Bush’s own prosecutor at Gitmo. The 2004 CIA report on the torture program described it as a failure, not a success; that’s why it was largely ended in the last years of Bush. So was Bush endangering the nation as well?

Read the whole thing. Thiessen’s book sounds like rationalization of the irrational, like the work of a criminal unable to confess or even recognize his crime, of a political hack who cannot endure a self-image as someone who really did betray the core values of his own country and the entire West – out of fear, panic, and ignorance. Well, he may need his own alternate reality to sleep at night.

But this subject is too serious not to see in the light of reality.

Pareene at Gawker:

The C.I.A. killed Manadel al-Jamadi at Abu Ghraib. There was torture at Guantanamo. The Heathrow plot was foiled by the Brits and the Pakistanis, and not through C.I.A. torture. Al-Qaeda has carried out numerous attacks against “American interests abroad” since the C.I.A. began torturing people. Those are all very well-documented things that Marc Thiessen gets wrong (or lies about) in his book about how much he loves torturing people.

Marc Theissen, who put all those lies in that book and who probably drinks from a coffee mug that says “World’s Best Defender of Doing Things That We Prosecuted Nazis For Doing,” was recently hired to be an op-ed columnist for the Washington Post. He has a column today, in fact! It’s about how earmarks are bad and how Republicans who hate earmarks are good and fiscally responsible but they used to not be fiscally responsible and independent voters who are concerned about government spending will reward Republicans for banning earmarks.

It is inane and boring. It reads like a robot was told to split the difference between David Brooks and Bill Kristol.

So not only does he hold a morally reprehensible position on torture (one that has been completely normalized because of people like the editors of the Washington Post), and not only is he either ignorant of the facts or simply lying to support his morally reprehensible position, but he is also a boring and predictable writer with boring and predictable thoughts on boring and predictable subjects.

Tom Ricks at Foreign Policy:

Nothing beats an on-the record response from those involved. The line I am getting from Theissen’s defenders is that, Well, he criticized her, too, in his book. Let’s see: One person is a reporter who worked alongside me the Wall Street Journal. The other was a flack for Jesse Helms and Rumsfeld. Who am I more likely to trust? It puzzles me that my old newspaper, The Washington Post, would hire Theissen to write for its op-ed page. How many former Bush speechwriters does one newspaper need?

UPDATE: Theissen responds to Mayer, at National Review

Conor Friedersdorf

UPDATE #2: More Theissen

More Friedersdorf

Everything Is For Dummies, Now

Mark Benjamin at Salon:

Self-proclaimed waterboarding fan Dick Cheney called it a no-brainer in a 2006 radio interview: Terror suspects should get a “a dunk in the water.” But recently released internal documents reveal the controversial “enhanced interrogation” practice was far more brutal on detainees than Cheney’s description sounds, and was administered with meticulous cruelty.

Interrogators pumped detainees full of so much water that the CIA turned to a special saline solution to minimize the risk of death, the documents show. The agency used a gurney “specially designed” to tilt backwards at a perfect angle to maximize the water entering the prisoner’s nose and mouth, intensifying the sense of choking – and to be lifted upright quickly in the event that a prisoner stopped breathing.

The documents also lay out, in chilling detail, exactly what should occur in each two-hour waterboarding “session.” Interrogators were instructed to start pouring water right after a detainee exhaled, to ensure he inhaled water, not air, in his next breath. They could use their hands to “dam the runoff” and prevent water from spilling out of a detainee’s mouth. They were allowed six separate 40-second “applications” of liquid in each two-hour session – and could dump water over a detainee’s nose and mouth for a total of 12 minutes a day. Finally, to keep detainees alive even if they inhaled their own vomit during a session – a not-uncommon side effect of waterboarding – the prisoners were kept on a liquid diet. The agency recommended Ensure Plus.

“This is revolting and it is deeply disturbing,” said Dr. Scott Allen, co-director of the Center for Prisoner Health and Human Rights at Brown University who has reviewed all of the documents for Physicians for Human Rights. “The so-called science here is a total departure from any ethics or any legitimate purpose. They are saying, ‘This is how risky and harmful the procedure is, but we are still going to do it.’ It just sounds like lunacy,” he said. “This fine-tuning of torture is unethical, incompetent and a disgrace to medicine.”

Scott Horton at Harper’s:

Once more we see that Ensure Plus, a staple of the force-feeding regime used at Guantánamo, also regularly featured as a part of the torture regime for CIA prisoners.

While these memos show senior lawyers at the Justice Department providing a “how to” manual for waterboarding and other techniques, explaining exactly how to torture without risk of criminal prosecution, the involvement of medical professionals is still more chilling.

Emptywheel at Firedoglake:

Since Mark Benjamin has decided to claim–some 300-plus days after I did the first of many posts focusing on the details of waterboarding (to say nothing of posts drational did looking at these descriptions medically)–that, “the agency’s “enhanced interrogation program” haven’t been mined for waterboarding details until now,” I thought I’d make another point about the significance of those details.

As Mark points out and I’ve been pointing out for 11 months, the torturers did far more during waterboarding than what members of the military underwent in SERE training. They dumped large amounts of water onto detainees, and made sure detainees inhaled water. This is far worse than either the Bybee Two Memo or SERE training describes.

Which is why it is so important that, six days before Yoo finalized the Bybee Two memo describing a relatively controlled waterboarding process, Jim Haynes went out of his way to get JPRA to send CIA a description of waterboarding that also didn’t resemble waterboarding as it was done in SERE training (Haynes appears to have given orders eliciting that description in a face-to-face meeting).

Andrew Sullivan:

Remember when we were told that it lasted just a few seconds and provided miraculous, accurate intelligence? And are still told by propagandists like Marc Thiessen and Cliff May that the victims were actually grateful for this and treated it as a religious liberation?

Now imagine what we still don’t know about what Cheney and his band of incompetent and weak war criminals got away with.

Matthew Yglesias:

As Washington Post columnist Marc Thiessen has emphasized, torture, as practiced by Thiessen’s dimwitted and immoral friends in the Bush administration, bore no resemblance to torture as practiced by the Spanish Inquisition, since in the Inquisition when they waterboarded people they also tied them down with spiky ropes.

Keep that in mind as you read these newly revealed details about the operational aspects of Thiessen’s favorite torture technique

Spencer Ackerman at Washington Independent:

This is all detailed in Abu Zubaydah’s account to the International Committee of the Red Cross of how he was tortured. But it’s one thing for a terrorist to testify to ill treatment. It’s another for CIA documentation to corroborate his account. Clearly Abu Zubaydah was drowned. As Benjamin observes, this is not the “dunking” that Dick Cheney describes. Whatever apologists like Marc Thiessen might say, the people who performed this torture knew full well that they were torturing people like Abu Zubaydah.

Michael Scherer at Swampland at Time:

As I have said before, I think it is a good thing that Marc Thiessen wants to keep the debate over harsh interrogation going. These are hard issues, and I do not think they have been fully digested by the American people. For instance, I think most people have still not fully understood that some of the worst pain inflicted on prisoners came not from the waterboarding, but from the CIA policy of forced sleep deprivation by stress position for as long as seven consecutive days during periods of extended caloric limitation. But I remain disappointed with the quality of Thiessen’s arguments, which seem to be designed more for cable news soundbites than for serious discussion. I wish he held himself to a higher standard.

Alex Massie:

Occasionally you hear people boasting about the medical supervision the CIA insisted upon during interrogations as though this advances the case that this was not torture in any commonly understood definition of the term. In fact it does quite the opposite: if you need doctors present to make sure that the suspects don’t die during interrogation then the reasonable assumption must be that the suspects are being harshly mistreated and, in these instances, tortured.

Sometimes, of course, the argument is made that since US troops sometimes undergo waterboarding at SERE school it can’t really be that tough, right? Wrong. Here’s Matthew Alexander, a former CIA interrogator:

Another mischaracterization in Courting Disaster is Thiessen’s claim that CIA water-boarding is identical to the water-boarding given American troops in training. Thiessen calls it “absurd” to believe we would torture our own troops. But if it were the same as the training given American troops, detainees would be told beforehand that it’s temporary and voluntary; they’d have a codeword to make it stop at any time; and be reassured that it would not harm them permanently. Real water-boarding—unlike resistance training—exploits the real fear of death. The detainee does not know when, or if, it will stop.

And that makes all the difference in the world. Anyway, as Benjamin’s piece details, these methods, used in conjunction with other techniques, were not used in the same way as at SERE. So that entire argument it utterly bogus. Again, the test is simple: if Saddam Hussein had treated a captured British or American soldier or spy in this fashion we would, quite rightly, have been outraged. But at least we might not have been surprised that this is how Saddam and his sons behaved.

Sic transit gloria Americana and all that.

Memorandum, Mon Amour

Michael Isikoff at Newsweek:

A crucial CIA memo that has been cited by former Vice President Dick Cheney and other former Bush administration officials as justifying the effectiveness of waterboarding contained “plainly inaccurate information” that undermined its conclusions,  according to Justice Department investigators.

Cheney has publicly called for the release of the CIA’s still classified memo and another document, insisting their disclosure will bolster his claim that the rough interrogation tactics he vigorously pushed for while in the White House yielded actionable intelligence that foiled terrorist plots against the United States.

But a just released report by the Justice Department’s Office of Professional Responsibility into the lawyers who approved the CIA’s interrogation program could prove awkward for Cheney and his supporters. The report provides new information about the contents of one of the never released agency memos, concluding that it significantly misstated the timing of the capture of one Al Qaeda suspect in order to make a claim that seems to have been patently false.

[…]

The CIA memo, called the Effectiveness Memo, was especially important because it was relied on by  Steven G. Bradbury, then the Justice Department’s acting chief of the Office of Legal Counsel, to write memos in 2005 and 2007 giving the agency additional legal approvals to continue its program of “Enhanced Interrogation Techniques.”  The memo reviewed the results of the use of EITs – which included waterboarding, sleep deprivation, and forced nudity – mainly against two suspects” Abu Zubaydah and Khalid Sheikh Mohammed, the report states.  One key claim in the agency memo was that the use of the CIA’s enhanced interrogations of Zubaydah led to the capture of suspected “dirty bomb’ plotter Jose Padilla.   “Abu Zubaydah provided significant information on two operatives, Jose Padilla and Binyam Mohammed, who planned to build and detonate a ‘dirty bomb’ in the Washington DC area,” the CIA memo stated, according to the OPR report. “Zubaydah’s reporting led to the arrest of Padilla on his arrival in Chicago in May 2003 [sic].”

But as the Justice report points out, this was wrong.   “In fact, Padilla was arrested in May 2002, not 2003 … The information ‘[leading] to the arrest of Padilla’ could not have been obtained through the authorized use of EITs.” (The use of enhanced interrogations was not authorized until Aug. 1, 2002 and Zubaydah was not waterboarded until later that month.) “ Yet Bradbury relied upon this plainly inaccurate information” in two OLC memos that contained direct citations from the CIA Effectiveness Memo about the interrogations of Zubaydah, the Justice report states.

Jason Linkins at Huffington Post:

Over at the Plum Line, Greg Sargent says, “This also appears to vindicate claims by former FBI interrogator Ali Soufan, who said he obtained all the crucial info from Zubaydah through non-enhanced methods.” It also appears to be bad news for Marc Thiessen, as well.

But there are complications: what if the information was obtained through the unauthorized use of torture? Let’s recall that in my conversation with Abu Zubaydah attorney Brent Mickum, he contended that his client was subjected to torture in the period between his original capture and the CIA receiving guidance from Jay Bybee.

UPDATE: As a reminder, the International Committee of the Red Cross reports that a wide variety of torture techniques were used on Abu Zubaydah, and others. In that report, Zubaydah told interviewers that he was subjected to waterboarding, and that it caused “considerable pain” because he had “undergone surgery three months earlier.” It’s frustratingly inspecific, but Abu Zubaydah is known to have been operated on soon after his capture on March 28, 2002, and Bybee didn’t advise C.I.A. interrogators until July 24th of the same year.

James Fallows:

The OPR report: this era’s ‘Hiroshima’

[…]

If you want to argue that “whatever” happened in the “war on terror” was necessary because of the magnitude and novelty of the threat, then you had better be willing to face what the “whatever” entailed. Which is what this report brings out. And if you believe — as I do, and have argued through the years — that what happened included excessive, abusive, lawless, immoral, and self-defeating acts done wrongly in the name of American “security,” then this is a basic text as well.

To conclude the logical sequence, if not to resolve this issue (which will be debated past the time any of us are around), you should then read the recent memo by David Margolis, of the Justice Department, overruling the OPR’s recommendation that Yoo and Bybee should be punished further. It is available as a 69-page PDF here. Margolis is a widely-esteemed voice of probity and professional excellence inside the Department. What is most striking to me as a lay reader is how much of his argument rests not on strictly legal judgments but rather on a historical/political assertion.

The assertion is that in the immediate aftermath of 9/11, anxiety was so high, fears were so great, and standards of all sorts were so clearly in abeyance, that normal rules about prudence and arm’s-length deliberation cannot fairly be applied in retrospect. Ie, “you had to be there.” Perhaps. (And, of course, we all were there.) In normal life we recognize the concept of decisions made in the heat of the moment, under time pressure, and without complete info. But it is worth noting that the central “torture memos” were from mid-summer 2002, nine months after the initial attacks — by people whose job was supposed to be providing beyond heat-of-the-moment counsel.

The “torture years” are now an indelible part of our history. The names Bybee and Yoo will always be associated with these policies. Whether you view them as patriots willing to do the dirty work of defending the nation — the Dick Cheney view, the 24 view, which equates the torture memos with Abraham Lincoln’s imposition of martial law — or view them as damaging America’s moral standing in ways that will take years to repair (my view), you owe it to yourself to read these original documents. I tried to make this point in more halting real-time fashion yesterday in a talk with Guy Raz on NPR.

Bill Burck and Dana Perino at The Corner:

On February 19, Attorney General Eric Holder took part in the time-honored Washington tradition of dumping undesired news on Friday afternoons or evenings. After weeks of leaks, the Justice Department officially exonerated Bush-era lawyers John Yoo and Jay Bybee, the authors of the original legal opinions on the lawfulness of the CIA interrogation program, which are known pejoratively as the “torture memos” to critics.

This is bad news for Holder and certain other Obama appointees at Justice — it undermines the story they’ve been telling for years that the lawyers who found the CIA program lawful were sadistic criminals committed to torturing poor souls such as Khalid Sheik Muhammad — but it is a vindication of an important principle that, prior to the Holder reign, had been adhered to across administrations: honestly held legal and policy opinions are not cause for prosecution or professional discipline.

For years now this principle has been under sustained attack by hard-core left-wing congressional partisans such as Rep. John Conyers and Sen. Patrick Leahy. It’s not much of a stretch to imagine some of the more wild-eyed among them searching for ways to revoke the law licenses of conservative Supreme Court justices. Fortunately, this country is not Venezuela — at least not yet; we should not rest easy.

This was a very narrow escape that came down to the brave decision of a long-time career official at Justice named David Margolis. Margolis is a widely respected 40-year veteran who has been tasked over the years with handling many of the more sensitive internal inquiries at the Justice Department. One of his responsibilities — which he has performed honorably for a number of different attorneys general in Democratic and Republican administrations — has been to oversee inquiries conducted by lawyers in the little-known Office of Professional Responsibility, or OPR. OPR is the office that recommended Yoo and Bybee be subject to disciplinary proceedings. Margolis rejected OPR’s recommendation and most of its analysis.

OPR is the equivalent of internal affairs at a police department, conducting inquiries of alleged misconduct by Justice Department lawyers and other staff and making disciplinary recommendations. OPR has an important role to play to ensure that misconduct is discovered and punished. But OPR’s investigation of the legal advice provided by Yoo and Bybee was, by its own admission, extremely unusual.

OPR annointed itself to review the constitutional and legal analysis of Bybee and Yoo while they were leading the Office of Legal Counsel, or OLC. Along with the Solicitor General’s Office — which, among other things, represents the federal government in cases before the Supreme Court — OLC employs the Justice Department’s best lawyers on the most difficult constitutional and legal issues. OLC is tasked with providing legal advice to the entire federal government, including the White House.

We don’t mean to be insulting, but the plain fact is that OPR is not, and has never been, equipped to second-guess OLC. The office’s role is a limited one focused on ethical violations; it is not staffed with experts on constitutional law or national security. It would be preposterous to rely on OPR’s judgment about hard questions of constitutional and statutory law over that of OLC or the Solicitor General’s Office. As Andy McCarthy has said, “having OPR grade the scholarship of OLC is like having the Double-A batting coach critique Derek Jeter’s swing.”

Sonny Bunch at Doublethink:

The case against Yoo and Bybee was always about criminalizing policy differences. Sure, it was talked about in heated rhetoric — War crimes!! Torture!! Crushed testicles!! — but the simple fact of the matter is that John Yoo was asked to render an opinion on the legal questions at hand, not to make policy or carry out that policy. Making the rendering of an honest opinion illegal strikes me as an incredibly pernicious attack on the independence of those working in the government.

Scott Horton at Harper’s:

As released, the OPR report is heavily redacted. No explanation is provided for the redactions, but the original contains a “top secret” classification, and it is likely that executive privilege, attorney-client privilege, and national security classifications figure in the decisions. Nevertheless, placement and circumstance suggest that a large number of redactions describe in detail meetings and discussions between the White House, the CIA, and the OLC lawyers working on the report.

Considering President Obama’s decision to terminate torture programs authorized by the OLC memos, all of which had already been rescinded before President Bush left office, it is not apparent how national security requires these communications to be kept secret. Far more likely, the redactions have been made to protect political figures at the White House and CIA, and potentially other agencies, from embarrassment. This is not a legitimate reason to black out the text.

A good example of potentially illegitimate redactions are those concerning repeated discussions about drafting the torture memoranda, which involve an unnamed OLC lawyer in addition to John Yoo and Jay Bybee. On p. 258, we learn that this lawyer “was a relatively inexperienced attorney when the Bybee and Yoo memos were being drafted. Although she appears to have made errors of research and analysis in drafting portions of the Bybee and Yoo memos, her work was subject to Yoo’s and Bybee’s review and approval. We therefore conclude that she should not be held professionally responsible for the incomplete and one-sided legal advice in the memoranda.” One woman working directly with John Yoo at OLC at this time was Jennifer Koester Hardy, now a partner in the Washington office of Kirkland & Ellis LLP. In an apparent redaction oversight, Hardy is mentioned by name in a footnote.

Why was Hardy’s name redacted? She played an obvious and important role in the production of the documents. She made serious errors, which appear to be driven less by flaws in research than by a desire to produce an opinion that had the conclusions that David Addington wanted. The failure to identify key precedents and the malicious misconstruction of precedent is as much her fault as that of Bybee and Yoo. Hardy is also an ideological fellow traveler of Yoo’s and Bybee’s. In the midst of her work at the Justice Department, she took time off to serve as a clerk for Justice Clarence Thomas, with whom John Yoo also clerked. Moreover, while she was clerking for Thomas, he authored opinions relating to detentions policy matters on which Hardy was plainly engaged at the Justice Department. Like Bybee, Yoo and Thomas, Hardy is also active in the Federalist Society. Finally, her connection with the law firm of Kirkland & Ellis is important for several reasons. Mark Filip, who worked aggressively to derail or block the OPR report, and whose highly partisan engagement on the matter is disclosed in several of the documents disclosed on Friday, departed the Justice Department to become Ms. Hardy’s partner at Kirkland. It’s certainly possible that he was engaged in discussions with Kirkland in late January 2009, when he issued his opinion about the OPR report. The Kirkland firm has emerged as a distinctly Republican powerhouse, heavily populated with the party’s neoconservative wing, such as Jay Lefkowitz, Ken Starr, John Bolton, and Michael Garcia.

So why would Hardy’s name be redacted? Disclosure of her name might get in the way of a future political appointment. It might also lead to a review by a local bar association of her involvement with the torture memos, something which Margolis is keen to obstruct.

Emily Bazelon at Double X:

The lawyer who helped John Yoo write the August 2002 torture memos was a law school classmate of mine at Yale. Her name is Jennifer Koester Hardy (when I knew her, it was Jennifer Koester; she has since gotten married). Her name was supposed to be redacted from the Justice Department ethics investigation into Yoo and Jay Bybee, his boss in the Bush Office of Legal Counsel. But a footnote identifies her, as TPM Muckraker tells us. She also co-wrote a law review article with Yoo. And in a July 2002 letter to CIA counsel John Rizzo, about what is necessary to establish torture as a crime, Yoo tells Rizzo to direct questions to him or to Koester.

After she worked with Yoo in 2002, Jen clerked for Clarence Thomas—she was his third Yale clerk, according to this list. Then I think she went back to the Justice Department. Now she’s a lawyer at Kirkland & Ellis. In law school, she was hugely involved with the Federalist Society. I remember her as a religious Christian. Also as principled in her beliefs—thoughtful rather than knee-jerk. She had a lot of friends, many of whose politics she didn’t share. We graduated in 2000, before 9/11 put terrorism and national security on the radar and I don’t remember talking to her about anything related (nor do the classmates I talked to about her today). What we do remember is that Jen was a lot of fun. She helped mock the faculty in the end-of-year Law Revue spoof. She was talkative and smiled a lot. The DoJ investigators from the Office of Legal Counsel conclude that because she was inexperienced when she worked with Yoo, “she should not be held professionally responsible for the incomplete and one-sided legal advice in the memoranda.”

Emptywheel at Firedoglake

Adam Serwer at Coates place:

The theological justification for al Qaeda’s wholesale slaughter of civilians was provided by Sayyid Imam al-Sharif, also known as Dr. Fadl, one of the founding fathers of al Qaeda. Because the murder of innocents is forbidden in Islam and the murder of Muslims in particular, Ayman al-Zawahiri and Osama bin Laden required some sort of theological framework for justifying terrorism. This was provided by al-Sharif, who essentially argued in his book, “The Compendium of the Pursuit of Divine Knowledge,” that apostates could be murdered, and that approach, takfir (which has come to be known as takfirism) allowed al Qaeda to, for all intents and purposes, kill anyone they wanted without violating the laws of Islam by declaring them to be apostates. In other words, Dr. Fadl helped provided a theological justification for something that everyone involved knew was wrong.

The legal memos justifying torture aren’t very different in terms of reasoning–it’s clear that John Yoo and his cohorts in the Office of Legal Counsel saw their job not as binding the president to the rule of law, but to declare legal any tactic that the executive branch believed necessary to fight terrorism. They worked backwards from this conclusion, and ethics officials at the Department of Justice, we now know, decided that they they had violated professional standards in doing so. Whereas al-Zawahiri and bin Laden turned to al-Sharif for a method to circumvent the plain language of the Koran, Bush and Cheney went to Yoo and Jay Bybee to circumvent the plain language of the law. Most Islamic scholars, just like most legal experts, reject their respective reasoning as unsound.

The torture memos–indeed, all of the pro-torture arguments rest on a similar intellectual themes to the takfiris. Suspected terrorists are “illegal enemy combatants”, outside the framework of laws that would otherwise guide us. Just as the takfiris justify the killing of even self-identified Muslims by excommunicating them as “infidels”, torture apologists argue that even American citizens like Jose Padilla who are accused of being terrorists become legal “apostates” without any rights the president is bound to respect. These are extraordinary circumstances, this is an extraordinary war–and so, the Bush administration turned to Yoo, a man who believes the president is bound by no laws during wartime: he can murder a village of innocent civilian non-combatants just as surely as he can crush the testicles of a child or deploy the military against residents of the United States. The architects of torture are the intellectual mirror image of their declared enemies, depending on the perceived inhumanity of their foes to justify monstrous actions. It’s worth noting however, that the Bush administration did not take full advantage of the wrongs that the lawyers in their Office of Legal Counsel would have enabled. My point is not to equate the deeds of AQ with the deeds of the Bush administration–merely to point out justification for acts that are on their face unjustifiable take a similar intellectual path.

UPDATE: Emptywheel

New York Times

Scott Horton at Harper’s

Daphne Eviatar

UPDATE #2: John Yoo at The Philly Inquirer

Back In Black (And Blago)

SCOTUSBlog:

The Supreme Court normally is not eager — far from it — to decide a constitutional question; its traditions suggest hesitancy in using that ultimate power.  But on Tuesday, the Court seemed quite impatient to ask, and answer, an issue of constitutionality: the validity of the 1988 law that is a vital government weapon against corruption — the “honest services fraud” law.

It seemed, however, that there could be a scheduling problem: should they wait until March, to see if it is properly raised in a case then, or should they tell lawyers sooner to come up with the arguments in one or both of the cases just heard: Black et al. v. U.S. (08-876) and Weyhrauch v. U.S. (08-1196)?  No one seemed enamored of a third option: act as if the issue is already before the Court in one or both of those cases, as presently composed.

It seemed evident, after two hours of oral argument Tuesday, that the Court had agreed to hear three cases this Term on the scope of the “honest services” law in order to make a major declaration about it, and perhaps go all the way to strike it down.  Justice Antonin Scalia reflected what appeared to be on the mind of most of his colleagues: ”Why should I turn somersaults” to find a way to save the statute?

Of course, he has been the statute’s most vehement critic on the Court, but none of his colleagues rose to a defense of the law in the first two of the three cases to be heard on so-called “honest services fraud.”

The arguments in Black and Weyhrauch moved back and forth over what specific “honest services” are demanded by the mail fraud amendment adopted by Congress 21 years ago.  Is the law violated if a worker reads the racing form after misleading the boss into thinking he was actually working? What about playing hookey to go to a ball game? Or telling the boss you liked his hat when you really didn’t?  More broadly, might the law be so vague that 100 million workers might be violating it without knowing it?

Scott Horton at Harper’s:

“It may be true that petitioners here, like the defendants in other ‘honest services’ cases, have acted improperly. But ‘Bad men, like good men, are entitled to be tried and sentenced in accordance with law,” Scalia wrote. And he wound up with an even tougher statement, “Indeed, it seems to me quite irresponsible to let the current chaos prevail.”

Scalia is correct about this, and the matter is far from trivial. Over the last eight years, the Justice Department’s Public Integrity Section has embarked on a disturbing campaign to strike against public corruption through the use of the concept of “honest services fraud.” At the end of this campaign, the reputation of the Justice Department itself has been seriously damages. In the last two weeks alone, the section head William Welch and most of his senior team were held in contempt for repeatedly lying to a federal judge in Washington and for failing to comply with the court’s unambiguous orders. The Justice Department was forced to replace its entire legal team. In a courthouse in Maine only a few days later, another judge dismissed one of their most closely followed cases, focusing on phone-jamming during a federal election, saying the evidence was now clear that the entire prosecution was a primitive political retaliation masquerading as law enforcement.

The Bush Administration systematically went after its political adversaries all over the country, regularly targeting political figures whose offices Karl Rove coveted for the G.O.P. and individuals who gave money to the Democratic Party. The ratio of prosecutions of Democrats as opposed to Republicans stood at roughly 6 to 1. Under Michael Mukasey, who promised to clean the problem up, the pattern held steady, and efforts to investigate matters from within were consistently swept under the carpet.

Consider the case of Paul Minor, a prominent trial lawyer from Mississippi. Minor now sits in a federal prison while his wife is dying from brain cancer. Minor’s offense? He was the leading donor to the Democratic Party of Mississippi. He was prosecuted for giving money to Democratic candidates for judicial office and then appearing before those judges. His conduct was legal under Mississippi legislation. But the federal prosecutor in Mississippi used the vague provisions of the “honest services” statute to prosecute and convict Minor.

The case of Alabama Governor Don Siegelman is another example of this abuse. But there are actually hundreds of cases still pending, and a large number of cases in which the massive power of the Justice Department was abused to get innocent defendants to accept a guilty verdict under plea bargain arrangements.

The whole area of “honest services” fraud has become an enormous embarrassment to the United States and a demonstration that federal prosecutors sworn to battle corruption can behave more corruptly than those they target and do it with complete impunity. Scalia suggests the air needs to be let out of this balloon. He’s right. And the matter couldn’t be more urgent.

Scott Lemieux:

My first reaction, admittedly, is to ponder the cynicism of the Court’s right flank; it’s hard to imagine Roberts and Alito, in particular, caring in the least about vague statutory language or the arbitrary application of criminal statutes in cases where the defendants weren’t frequently rich white men in suits.

Regardless of their motivation, though, and despite the fact that I have less than no sympathy for Conrad Black, I have to say that the arguments that the statute is constitutionally vague strike me as quite convincing:

Justices across the court’s ideological spectrum took turns on Tuesday attacking the law as hopelessly broad and vague.

Justice Steven G. Breyer estimated that there are 150 million workers in the United States and that perhaps 140 million of them could be prosecuted under the government’s interpretation of the law.

Complimenting the boss’s hat “so the boss will leave the room so that the worker can continue to read The Racing Form,” Justice Breyer said, could amount to a federal crime.

Zachary Roth at TPM:

If the law goes down, pretty much anyone else convicted of honest services fraud could benefit. “There will be a rush to the courthouse,” Stan Brand, a veteran Washington ethics lawyer, told TPMmuckraker. Even those like Abramoff and Jefferson who were convicted on multiple counts, honest-services fraud among them, could get their sentences shortened. “Where you’ve got multiple counts, they’re not gonna get a pass, but they could get a reduction,” Brand said.

And Jonathan Turley told the New Orleans Times-Picayune that action by the Supreme Court “could potentially have a large impact,” on the Jefferson case.

Brand, reached in Indianapolis where’s he’s attending baseball’s winter meetings (the Granderson trade is the big news, he said), noted that former Maryland governor Marvin Mandel, and former Utah congressman George Hansen both had their corruption convictions overturned after the courts narrowed the laws — mail fraud, and false statements, respectively — on which they were convicted.

In a sign of how the issue is already shaking up corruption cases, prosecutors working on the case of former Illinois governor Rod Blagojevich indicated earlier this week that they planned to re-file their indictment against him, this time with no reference to honest services fraud, because of the chance that the Supreme Court might strike down or narrow the law. Blago was charged in connection to an alleged scheme to sell Barack Obama’s Senate seat, as well as other pay-for-play allegations.

Nonetheless, Brand, a longtime defense lawyer, said that if the law is indeed struck down, it won’t be a major blow for anti-corruption efforts. He said that prosecutors still would have numerous other charges at their disposal, including bribery, gratuity, conflict of interest, and false statements, among others.

“These guys have so many arrows in their quiver,” Brand said.

David Frum at FrumForum

UPDATE: And the ruling today: James Joyner

Ann Althouse

UPDATE #2: Jonathan Adler

SCOTUSBlog

The Death Of Three Detainees

Glenn Greenwald:

On the night of June 10, 2006, three Guantanamo detainees were found dead in their individual cells.  Without any autopsy or investigation, U.S. military officials proclaimed “suicide by hanging” as the cause of each death, and immediately sought to exploit the episode as proof of the evil of the detainees.  Admiral Harry Harris, the camp’s commander, said it showed “they have no regard for life” and that the suicides were “not an act of desperation, but an act of asymmetric warfare aimed at us here at Guantanamo”; another official anonymously said that the suicides showed the victims were “committed jihadists [who] will do anything they can to advance their cause,” while another sneered that “it was a good PR move to draw attention.”

Questions immediately arose about how it could be possible that three detainees kept in isolation and under constant and intense monitoring could have coordinated and then carried out group suicide without detection, particularly since the military claimed their bodies were not found for over two hours after their deaths.  But from the beginning, there was a clear attempt on the part of Guantanamo officials to prevent any outside investigation of this incident.  To allay the questions that quickly emerged, the military announced it would conduct a sweeping investigation and publicly release its finding, but it did not do so until more than two years later when — in August, 2008 — it released a heavily redacted reported purporting to confirm suicide by hanging as the cause.  Two of the three dead detainees were Saudis and one was Yemeni; they had been detained for years without charges; one of them was 17 years old at the time he was detained and 22 when he died; and they had participated in several of the hunger strikes at the camp to protest the brutality, torture and abuse to which they were routinely subjected.  Perversely, one of the three victims had been cleared for release earlier that month.

A major new report from Seton Hall University School of Law released this morning raises serious doubts about both the military’s version of events and the reliability of its investigation.  The Report details that the three men “died under questionable circumstances”; that “the investigation into their deaths resulted in more questions than answers”; and that “without a proper investigation, it is impossible to determine the circumstances of the three detainees’ deaths.”

Scott Horton at Huffington Post:

Seton Hall law professor Mark Denbeaux supervised the report issued this morning examining the Defense Department’s investigation of the three deaths that occurred at Gitmo the night of June 9-10, 2006. (See main story: “Law School Study Finds Evidence Of Cover-Up After Three Alleged Suicides At Guantanamo In 2006“).

I interviewed him about some of the issues that the Seton Hall study highlights without resolving.

Q: The Seton Hall study refrains from stating a conclusion that the three prisoner deaths in Gitmo in June 2006 were homicides, but it’s obviously very skeptical of the military investigation’s conclusions that they were suicides. Why the equivocation on this point?

A: During August of 2006, we published June 10th Suicides at Guantanamo: Government Words and Deeds Compared.” In February 2009, we decided to revisit the question. Due to the fact that the NCIS [Naval Criminal Investigative Service] and the CITF [Criminal Investigation Task Force] spent over two years investigating the suicides, we expected that the investigation would have produced findings of the event that were highly transparent and conclusive. As our report shows, this did not occur. Our report, “Death in Camp Delta,” presents what the military investigation found. The military investigation does an amazingly poor job of explaining what happened that night, and some of its conclusions appear to be contraindicated by its own factual findings.

The most innocent explanation I can come up with that comports with all the facts is that this is Gitmo meets The Lord of the Flies and the Stanford Prison Experiment: no one really cares about the rules. Even in that reading, the NCIS investigation is a cover-up of a gross dereliction of duty for which nobody was disciplined, leading to the deaths of three men. The fact that NCIS did not address these issues is inexplicable and very troubling.

Q: Do you think it’s physically possible for a prisoner to have committed suicide the way the military report describes — binding his own hands and feet, stuffing cloth down his throat, and hanging himself from the metal mesh of a cell?

A: It’s hard to imagine that one person without extraordinary skills could do it. It’s inconceivable that three prisoners could do this without anyone noticing it — that in any event reflects my lack of imagination. We would have assumed that investigators would have run simulations or contacted experts. The NCIS investigation did not address this question, or if it did it was discussed in the portion of the report that has been redacted. It is difficult to grasp how one would commit suicide by hanging given the material available to the prisoners, but because the NCIS investigation did not ask this question, neither did the study.

Daphne Eviatar at Washington Independent:

TWI recently reported that the Obama administration is fighting to squelch a lawsuit brought by the families of two of the prisoners who are the subject of the Seton Hall report, claiming that a law passed by Congress protects U.S. officials from liability for any mistreatment of detainees who were declared “enemy combatants” and held in U.S. custody. The government also argues — most recently in a legal brief filed last Friday — that the relatives of the men are not entitled to sue because, among other things, the court should not interfere in foreign policy and national security matters, and a remedy would “have a detrimental impact on the effectiveness of the military.” The government also argues that the officials sued are immune from suit because the dead prisoners did not have any constitutional rights to better care or supervision, and none of the 24 military and former military officials sued personally participated in denying them any constitutional rights. The government argues that neither the Constitution’s Fifth Amendment right to Due Process nor the Eighth Amendment’s prohibition on cruel and unusual punishment apply to Guantanamo detainees.

As Salon blogger and Constitutional lawyer Glenn Greenwald wrote on Monday: “All of this is depressingly consistent with multiple other cases in which the Obama DOJ is attempting aggressively to shield even the most illegal and allegedly discontinued Bush programs from judicial review.” In each case, the administration has argued, as aggressively as the Bush administration ever did, that “federal courts have no right to adjudicate claims that the Government violated the Constitution and the law,” writes Greenwald.

TWI has pointed out and Harper’s contributing editor and human rights lawyer Scott Horton wrote over the weekend that the government is even making these claims to defend John Yoo, and to argue that no government lawyers ought to be held responsible for advising the government to engage in clearly illegal conduct, even if the consequences were, forseeably, that someone would be tortured or even killed.

In their legal complaint, the fathers of two of the young men, Yasser Al-Zahrani and Salah Al-Salami, both in their 20s, claim their sons were beaten, sleep-deprived, isolated, held in freezing cold or excruciatingly hot temperatures, humiliated, prevented from practicing their religion and denied necessary medication. The fathers, represented by the Center for Constitutional Rights, claim the young men were obviously suffering from deteriorating mental health and growing despair. Deemed “enemy combatants,” they’d spent four years locked up at the Guantanamo prison camp without charge, without seeing the evidence against them, and without ever even meeting with a lawyer who could press their case in a court. Both had engaged in a prolonged hunger strike with other prisoners, and, their fathers say, clearly presented a high risk of suicide.

Yet somehow, as the Seton Hall report points out, the three men were left unsupervised in their cells for long enough that they were able to tear up their sheets and clothing and braid them into a noose; make mannequins of themselves to fool guards into believing they were asleep in their cells; hang sheets to block the guards’ view in violation of prison rules; stuff rags down their own throats; tie their own feet and hands together; hang the noose from the cell wall or ceiling; climb up on to the sink in the cell, put the noose around their necks and release their weight so as to die by self-strangulation; and hang dead for at least two hours in the cell, without attracting any attention from the prison guards.

According to the report, five guards were responsible for 24-hour supervision of 28 detainees in the constantly-lit prison cells, which were also monitored by video cameras. Although the guards were initially suspected of giving false statements and read their Miranda rights, they were also ordered not to write out sworn statements, although that’s required by the military’s standard operating procedures. Ultimately, no one was held responsible for any wrongdoing, the report concludes.

Mark Denbeaux, a law professor at Seton Hall and Director of the school’s Center for Policy & Research, which conducted the study of the military’s investigation into the three deaths, said in a statement that the investigation shows “guards not on duty, detainees hanging dead in their cells for hours and guards leaving their posts to eat the detainees’ leftover food.”

Denbeaux also called the government’s investigation “a cover up,” adding that “given the gross inadequacy of the investigation the more compelling questions are: Who knew of the cover up? Who approved of the cover up, and why? The government’s investigation is slipshod, and its conclusion leaves the most important questions about this tragedy unanswered.”

Andrew Sullivan

UPDATE: More Sullivan

UPDATE #2: Scott Horton at Harper’s

Andrew Sullivan

Spencer Ackerman

Scott H. Payne at The League

UPDATE #3: Megan McArdle

John Cole

UPDATE #4: Glenn Greenwald

Conor Friedersdorf at Daily Beast

UPDATE #5: Joe Carter on Friedersdorf

Friedersdorf responds

Carter responds

Dahlia Lithwick at Slate

Jeffrey Goldberg

UPDATE #6: Sullivan responds to Carter

UPDATE #7: More Sullivan

UPDATE #8: Jack Shafer at Slate

Spencer Ackerman at Shafer

UPDATE #9: More on Shafer v. Harpers

More Conor Friedersdorf here and here

UPDATE #10: Rowan Scarborough at Human Events

More Horton

More Sullivan

UPDATE #11:Andy Worthington

Render Unto Caesar The Things Which Are Caesar’s

Scott Horton at HuffPo:

Raymond Azar, a 45-year-old Lebanese construction manager with a grade school education, is employed by Sima International, a Lebanon-based contractor that does work for the U.S. military in Iraq and Afghanistan. He also has the unlikely distinction of being the first target of a rendition carried out on the Obama watch.

According to court papers, on April 7, 2009, Azar and a Lebanese-American colleague, Dinorah Cobos, were seized by “at least eight” heavily armed FBI agents in Kabul, Afghanistan, where they had traveled for a meeting to discuss the status of one of his company’s U.S. government contracts. The trip ended with Azar alighting in manacles from a Gulfstream V executive jet in Manassas, Virginia, where he was formally arrested and charged in a federal antitrust probe.

This rendition involved no black sites and was clearly driven by a desire to get the target quickly before a court. Also unlike renditions of the Bush-era, the target wasn’t even a terror suspect; rather, he was suspected of fraud. But in a troubling intimation of the last administration, accusations of torture hover menacingly over the case. According to papers filed by his lawyers, Azar was threatened, subjected to coercive interrogation techniques and induced to sign a confession. Azar claims he was hooded, stripped naked (while being photographed) and subjected to a “body cavity search.”

Brian Doherty in Reason

Daphne Eviatar at the Washington Independent:

Azar claims he was threatened and coerced into signing a confession in ways that amounted to torture. He says he was hooded, strip-searched, photographed naked, exposed to extreme cold and sleep-deprived. He also alleges that while he was driven to the U.S. prison at the Bagram air base, a federal agent “pulled a photograph of Azar’s wife and four children from his wallet” and said he’d better confess to bribing a contract officer if he ever wanted to see them again.

The government denies that charge and calls Azar’s claims of torture “hyperbolic.”

Bmaz at Emptywheel:

Afghanistan is a sovereign country that, by all accounts, Azar was in legally and properly. The Afghan government further appears to have no knowledge of nor participation in, at least that it will admit, the forced removal of Azar at gunpoint by US agents. There are international extradition norms and, although there will certainly be a lot of facts being added to the picture as the case goes forward, the US actions do not seem to comport with them. While the government under Barack Obama seems to remain up to its old (and some new) egregious tricks, the one check and balance left in this country, the Federal Judiciary, seems to be on the ball already:

“Azar’s allegations will now go before United States District Court Judge Gerald Bruce Lee, who must test Azar’s claims to have been tortured and act on his motion to dismiss the charges and suppress his confession. Motions of this sort are generally reckoned a long shot, as most judges prefer to have everything fully developed at trial. But at a 90-minute hearing held on July 17, Judge Lee indicated his discomfort with the prosecutors’ conduct, and specifically with their failure to supply the defendants with background information about the capture and interrogation of Azar and Cobos in Afghanistan. He asked three government prosecutors who were present if they were familiar with the Stevens case before Federal Judge Emmet G. Sullivan, in which a special prosecutor has been appointed to investigate potential criminal misconduct by the prosecutors. He insisted that the prosecutors immediately turn over to the defendants their records, including interview notes and any exculpatory materials.”

Judge G. Bruce Lee. Sounds like a guy not to be messed with. Good.

Amazing isn’t it that the US government can snatch Azar at gunpoint, bag him, tag him and fly him to Virginia for minor contracting fraud by his employer, yet they cannot seem to do so much as stop giving bonuses to KBR who kills American soldiers through their reckless disregard. Nor have they bagged and sensory deprived anybody from DynCorp, who has engaged in major fraud on defense contracts in Afghanistan and Iraq. Go figure.

Jonathan Adler:

A Justice Department spokesperson says the FBI was just following “standard operating procedures” in how it handled Azar, adding “we take very seriously criminal fraud against the United States government.” A representative of Human Rights Watch calls the case “bizarre.” Unless there’s more to this story, I’m with HRW on this one.

Spencer Ackerman:

When I am president I would like to deal with rendition. What I would like to do to bring change would be to stop the practice of extraordinary rendition whereby we kidnap people who we think are terrorists and take them to foreign countries where they are probably going to be tortured. I would like to return to the practice of ordinary rendition whereby we kidnap people and then take them either back to the U.S. to face trial or to their own country to face trial. I liked when Bill Clinton was president and he did ordinary rendition. Some of my friends tell me that’s a responsible tool to have in the toolbox and I like to be responsible.

Maybe though sometimes being responsible and ordering ordinary renditions will lead to kidnapping people and not feeding them for 30 hours while they are in custody and taking their clothes off and photographing them without their clothes on. And they would be hooded even though Donald Rumsfeld who I don’t like eventually stopped hooding people. And this would be done to someone wanted for questioning in a “case involving inflated invoices” who would end up pleading guilty to “conspiracy to commit bribery” who we flew from Afghanistan to Virginia, and did not have something to do with terrorism. I want to be responsible but I am not sure if this is responsible and if this is change and I believe in change and want you to believe in it too.

Don Suber:

He is not a terrorist.

Raymond Azar, 45, pleaded guilty to conspiracy to commit bribery, the only charge against him.

ACLU?

New York Times?

Hollywood?

The Democratic Party?

After nearly 8 years of holier-than-thou scoffing at President Bush’s desperate attempts to avoid another 9/11, liberals are using anti-terrorist techniques to catch white-collar criminals.

Hey, 53% of the country, nice job… fewer rights, less liberty.

Sadly, No on Suber’s post