1 Boring Old Man

The State-Secrets Privilege, Tamed

Of the many ways that the Bush administration sought to evade accountability for its violations of the law and the Constitution under the cover of battling terrorism, one of the most appalling was its attempt to use inflated claims of state secrecy to slam shut the doors of the nation’s courthouses. Sadly, the Obama administration also embraced this tactic, even though President Obama criticized the cult of secrecy while running for office, leaving it to the courts to stand up for transparency and accountability. And that is just what a panel of the federal appeals court in San Francisco did on Tuesday by firmly rejecting the claim that the government can prevent a judge from even hearing those who say they were hurt by federal polices and actions.

The unanimous ruling by a three-judge panel of the United States Court of Appeals for the Ninth Circuit reinstated a civil lawsuit brought against a government contractor by five victims of the extraordinary rendition program, under which foreigners were kidnapped and flown to other countries for interrogation and torture. The panel said the government can ask a judge to decide on a case-by-case basis whether disclosing particular evidence would jeopardize national security. But it recognized the affront to civil liberties and the constitutional separation of powers in the Justice Department’s argument that the executive branch is entitled to have lawsuits shut down whenever an official makes a blanket claim of national security. Michael Hayden, the former director of the Central Intelligence Agency did that, quite unconvincingly, in this case.

“According to the government’s theory, the judiciary should effectively cordon off all secret actions from judicial scrutiny, immunizing the C.I.A. and its partners from the demands and limits of the law,” Judge Michael Hawkins said in the opinion. Doing so, Judge Hawkins said, would “perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of the judicial process”…

"Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy… President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice."

The looming question, "Is the legal pursuit of the use of torture by our C.I.A. in the lead up to the Iraq War politically motivated?" It strikes me that this isn’t the only question of this type on the table at the moment. How about, "Did torture produce intelligence that saved American lives?" or as Cheney frames it, "Did harsh interrogation techniques work?" He wants to release memos from his files that proved that it did "work." As a matter of fact, those questions sound a lot like the question Bush liked to talk about, "Did the Surge work?"

It goes without saying that neither the former Bush Administration officials nor the Republican Party and its media outlets will be much help here. Their pattern is fixed. They deny all allegations of wrong-doing. When pinned to the wall, they move to some next level of denial. The torture issue is only one example of this pattern. When the Abu Ghraib story broke, they first denied that it happened – then quickly moved to the "a few rogue soldiers" thesis. Then we found out about the "torture memos" which were kept secret for a long time. Then they moved to "we don’t torture" – "waterboarding isn’t torture" and "we didn’t do it very much."  Now they’re at "torture harsh interrogation methods worked."

Did the Bush administration manipulate intelligence about Saddam Hussein’s weapons programs to justify an invasion of Iraq? Based on my experience with the administration in the months leading up to the war, I have little choice but to conclude that some of the intelligence related to Iraq’s nuclear weapons program was twisted to exaggerate the Iraqi threat.

The Bush Administration is accused of using torture of prisoners to extract a confession that al Qaeda and Saddam Hussein were in league with each other. They sought that confession to justify invading Iraq.

The Bush Administration’s desire to go to war with Iraq antedated 9/11 and their use of extreme measures to find a way to justify an invasion  had little to do with a real attempt to get intelligence. They didn’t care about the truth. What they cared about was extracting a statement that they could use to justify their war.

Did the Bush administration torture prisoners in an attempt to justify an invasion of Iraq?

“The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.” … “The legal question was and is difficult, and the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”

Double binds make people crazy. That’s the bottom line – it’s just the way it is. In fact, one might say that "terrorism" hinges on that kind of technique – making the target look, act , and go crazy. So, I’d like to take this post’s exploration one step further. Did the Bush Administration initiate this whole torture debacle because the 9/11 attack put them in such a double bind that their seemingly crazy response was understandable?

Put another way: Did the 9/11 terrorists have other equally diabolical attacks waiting in the wings that justified our compromising our own committment to civilized behavior in order to fend off future horror? That’s the explanation that has been in the air since the attack, the reason we went along with the Bush Administration’s antics for such a long time. They bent the rules, but the reason was to protect us from yet another monstrous attack. In that scenario, the originator of our double bind was Osama Bin Laden and al Qaeda. At some level, that is, of course, true.

Recent evidence multiplies the suspicion that whether that scenario was true or not, there was another compelling thread to the story. The Bush Administration came into power determined to go to war with Saddam Hussein and unseat him ["regime change"]. In response to 9/11, they saw the chance to use al Qaeda’s attack as an excuse to invade Iraq. They spent 2002 combing through the data trying to find an way to justify attacking Hussein, and the real motive for their torture policy was to extract an excuse to go to war. In the course of things, our own Executive Branch put the DoJ, the C.I.A., the Congress, and the American people in a double bind – abusing their power, other countries, the P.O.W.’s, our soldiers, the Iraqis, and the rest of us in the process.

Is there a "probable cause" to formalize an investigation? That is the only real question on the table. The motivations of  Holder, Obama, Congess, or even 1boringoldman are not in question. It’s the motives and actual behavior of the Bush Administration Principals that’s on the line. The obvious answer is "Yes, there is adequate ‘probable cause’ to formalize an investigation."

Former Vice President Dick Cheney’s reemergence on the political stage after his ignominious departure on Inauguration Day, eschewing the traditional handshake with his successor and the new president, is nothing if not ironic. The most secretive individual in American politics is now calling for the selective release of documents that remain classified in one of his own files marked “Detainees.” We have also learned that a principal reason for having tortured senior al Qaeda detainees was not, in fact, to defend the Homeland, but rather to build the case for war with Iraq based on alleged ties between Saddam Hussein and Osama bin Laden. Despite literally hundreds of waterboarding sessions, there was no evidence developed that such a link existed. But that did not stop Cheney. He and others in the Bush administration simply asserted a link even though they knew one did not exist. The disinformation campaign to manipulate public opinion in favor of the [Iraq] invasion, the torture program, and the illegal exposure of a clandestine CIA agent—my wife, Valerie Plame Wilson—were linked events.

I know something about Cheney’s disinformation. When I, and a number of others, including a four-star Marine Corps general, Carleton Fulford, and the then-U.S. Ambassador to the West African nation of Niger, reported to the CIA that there was no evidence to support the assertion that Iraq had entered into a contract to purchase 500 tons of uranium yellowcake, our conclusions were ignored by the Bush administration. Instead, the president, in his State of the Union address in 2003, proclaimed a falsehood: “Saddam Hussein recently sought significant quantities of uranium from Africa.” Then National Security Adviser Condoleezza Rice was trotted out to assert that we could not afford to “wait for the smoking gun to come in the form of a mushroom cloud,” and Cheney himself asserted that Iraq was reconstituting its nuclear-weapons program.

There is no longer any question that we were misled by an administration that had already made the decision to invade, conquer, and occupy Iraq, and did everything it could to force the facts to justify their action. Cheney, the architect of the Bush administration’s disastrous national security and foreign policies, now wants to declassify certain classified documents that he believes will vindicate his advocacy of a war of choice in the Middle East and his support of torture. Cheney asserts that the ends justify the means whatever the insult to international law, the conscience of the world, and damage to the long-term U.S. national-security interests.

Cheney’s request for the declassification of material is a welcome development, but it should not be limited to his narrow request. Our country’s understanding of what was done in our name by the Bush administration depends on the release, not just of the documents Cheney has designated, but of all documents related to the efforts of the Bush administration and Cheney himself to defend the indefensible—the decision to invade Iraq despite the knowledge at the time that Iraq did not have a nuclear program, had no ties to al Qaeda, and posed no existential threat to the United States or to its friends and allies in the region.

The disinformation campaign to manipulate public opinion in favor of the invasion, the torture program, and the illegal exposure of a clandestine CIA agent—my wife, Valerie Plame Wilson—were linked events. In their desperate effort to gather material to whip up public support, Cheney and others resorted to torture, well known in the intelligence craft to elicit inherently unreliable information. Cheney & Co. then pressured the CIA to put its stamp of approval on a series of falsehoods—26 of which were inserted into Secretary of State Colin Powell’s speech before the United Nations Security Council. At the same time, Cheney was furiously attempting to suppress the true information that Saddam Hussein was not seeking yellowcake uranium in Niger. After I published the facts in an article in The New York Times in July 2003, Cheney tried to punish me and discredit the truth by directing the outing of a CIA operative who happened to be my wife.

Among other documents Cheney should release is his testimony to Special Counsel Patrick Fitzgerald about the role he played in the treasonous leak of the identity of a covert CIA officer. His chief of staff, I. Lewis “Scooter” Libby, was convicted of obstruction of justice and perjury for his efforts to ensure that the “cloud over the vice president,” as Fitzgerald noted, was not penetrated.

As a witness in the Libby case, Cheney has the legal grounds to release his own testimony. If he feels more comfortable, he can ask permission, though he does not need it, from former President George W. Bush—and ask that Bush release his testimony as well. Because Cheney has called for transparency, why should he or Bush object? Then Pat Fitzgerald can make public the transcripts. It’s time for this coverup to end.

The American people deserve to know the truth at last, not to depend on Cheney’s selective and biased versions. Let us take the former vice president up on his demand for documents and declassify them all. Then, and only then, will we fully understand what he and his henchmen did in the name of the United States.

I expect that it wasn’t just Cheney’s request for a document release that brought him back to the world of letters. My guess is that the recent revelations [the O.L.C. Memosand the Senate Armed Services Committee Report] were as enlightening to him as they were to me [and most everyone else in the blogosphere]. I didn’t know that the Torture Memos were for a time focused on the treatment of a particular prisoner – Abu Zubaydah. And I hadn’t put together that the timing was in the period when the Administration was searching for a justification for their invasion of Iraq. So, I hadn’t considered that the specific reason for the escalation in brutal interrogation was designed to force a prisoner to confess that al Qaeda and Hussein’s Iraq were in cahoots in the 9/11 attack.

Torture as a policy was bad enough on its own. Getting some extremely partisan lawyers at the DoJ to sign off on it was even worse. But so long as we thought that they were overzealous in attempting to get information about terrorist cells or some future attack, it was only very misguided. Now, it appears likely that it was ordered to extract a confession that would certify the invasion of a sovereign country that had not attacked us – whether that information was true or not – tand he torture policy becomes a crime against our own country. This new finding changes the stakes altogether.

• September 11, 2001 @ 2:40 PM: Donald Rumsfeld tasks Paul Wolfowitz to ‘"get additional support" for Saddam Hussein’s "connection with UBL [Osama Bin Laden]."
• September 16, 2001: Dick Cheney talks about our having to work on the "Dark Side."
• December 18, 2001: Ibn Sheikh al-Libi captured. After being tortured, al-Libi made up stories about Al Qaeda ties to Iraq.
• December 27, 2001: Rumsfeld announces plans to hold detainees at Gitmo. 
• February, 2002: Joseph Wilson sent to Niger by the C.I.A. to investigate the story that Iraq is buying yellowcake uranium. He finds nothing.
• March 28, 2002: Abu Zubaydah taken into custody.
• March 31, 2002: Abu Zubaydah flown to Thailand.
• July 10, 2002: Date of first interrogation report from Abu Zubaydah cited in 9/11 Report.
• July 26, 2002: John Bybee tells CIA waterboarding is legal. CIA begins to waterboard Abu Zubaydah.
• Summer, 2002:Interrogators describe pressure to make connection between al Qaeda and Iraq.  Frustration lead to pressure to use more aggressive techniques. Calls from Paul Wolfowitz urging more aggressive interrogation.
• August 1, 2002: "Bybee Memo" [written by John Yoo] describes torture as that which is equivalent to :the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
• Sept 8, 2002: Cheney goes on TV and proclaims that we have evidence of links between Iraq and Al Qaeda.
• September 25, 2002: Jim Haynes, John Rizzo, David Addington, Jack Goldsmith, Patrick Philbin, Alice Fisher visit Gitmo and Charleston [Padilla] and Norfolk [Hamdi] brigs.
• Fall 2002: CIA briefs Congress on the torture program.

Nearly $7M found in Madoff’s Bank of New York accounts
BY ANTHONY M. DESTEFANO
Newsday
April 28, 2009

 

Like finding coins under a couch cushion, the special trustee probing Bernard Madoff’s crooked business empire continues to discover more cash held in bank accounts, according to bankruptcy court documents. Nearly $7 million was found in six Madoff accounts at Bank of New York Mellon Corp., which contained amounts as low as $5,372 and as much as $6.5 million, according to records filed by Irving Picard, the lawyer acting as trustee.

Picard is asking that the money be transferred to his control for eventual distribution to Madoff investors who were victimized by the estimated $65-billion Ponzi scheme. The Bank of New York money will be added to a pot of investor funds that now totals $950 million to $1 billion that will go to repay investors.

While the Bank of New York recovery is relatively small, a source familiar with the investigation who didn’t want to be identified said an unspecified number of additional discoveries, each totaling more than $100 million, is expected to be announced soon.

Disclosure of the Bank of New York accounts comes a day after a Boston company agreed to pay $25.5 million in the next four years to buy what remains of Madoff’s legitimate market-making operation. Castor Pollux Securities Llc won an auction that concluded late Monday night to buy the business.

As with money raised from the sale of other assets, like Madoff’s season tickets for the New York Mets, the money paid for the market-making business will be used to repay investors. "The auction yielded a higher and better offer for the market-making business," Picard said in a statement Monday night. "The additional consideration that we will receive as a result of the auction will benefit Madoff victims."

In March, Castor Pollux initially offered to pay as much as $15 million for the Madoff business. Picard also has brought legal actions against offshore investment funds in an effort to pull back as much as $405 million in money withdrawn by various investment funds from Madoff accounts in the weeks before the scandal erupted. The investigative source said more lawsuits are being contemplated against other investment funds and companies, which could push the recoveries up to $2 billion by the end of the year.

Picard also has sent out "clawback" letters to corporations and individual investors asking for the return of more than $735 million in false profits that the trustee said represent stolen property.

It reminds me of the news cycles with [former] New York Governor Elliot Spitzer, or [former] Illinois Governor Rod Blagojavich. It’s a story of the hour that we can’t read enough about; then there’s a humiliating fall; then it’s old news and off the scope – gone from the front page and even the Late Night monologues.

When I mull it over, there’s not much to keep our interest up about Bernie Madoff except some curiosity about how he lived with himself for all those years knowing that he was decimating the savings of every client and every charity that came close to him. Or maybe some curiosity as to how Ruth either did the same thing or remained oblivious about the source of their wealth.

For me, I watched the long version of that roundtable discussion that was everywhere where he waxed eloquent about investing, and felt like I understood how he rationalized the whole thing. He blamed it on the regulators. You just can’t make any money doing trades anymore, you have to invest. And then there was some cryptic line about having to decide where to draw some line. I actually got a laugh as I thought about it. The supposed guru of investing was afraid to make investments. He made no trades at all. I guess he just couldn’t stand the risks involved.

I think I’m one of those people who probably ought to keep his mouth shut about the political party thing, having been a fairly reliable Democratic voter for most of my voting life. It didn’t start out that way. My first ever vote was for Barry Goldwater in 1964. I met my now wife not long after that [a rabid Democrat] and she must really have liked me because that vote of mine was a big hurdle for her to go over. But I think I’d vote for him today if the alternative were Lyndon Johnson. It wasn’t about political party. It was about integrity. But that was long ago, and who knows what goes on in the mind of a 22 year old medical student, even if it’s your own mind? Come to think of it, as a sixth grader, I was entranced with Eisenhower. I had no clue about the philosophies of either party. I just couldn’t imagine that people like my mother weren’t going to vote for the General who had saved western civilization. What was she thinking? And I could not for the life of me figure out why he didn’t get to wear his uniform anymore.

Now, it’s different. It’s been different since Ronald Reagan. For me, it was originally about the tax thing. He cut the taxes and kept on spending. The math of that was clear as a bell to me. The National Debt went up like the Rockies and government services went down. How could that work, I thought? Well, it couldn’t work. But it kept them in office for twelve years. I had the distinction between the Party philosophy down pat by then, and during the Reagan years, I began to think that what they said they believed in wasn’t true. Not that I agreed with what they said, but it seemed to me that they didn’t believe it either. When they crowed that he’d beaten the communists by outspending them, I thought they were crazy. They might as well have taken credit for the sun coming up in the morning. I thought communism fell because it was a bad idea, poorly executed. And I thought that Iran Contra was the same as Watergate, a sign of a lack of principles that made me ashamed.

With the ascendancy of Newt Gingrich in 1994, they lost me forever. And if they hadn’t lost me with him, I’d say the same thing about George W. Bush. It makes me question democracy that those two guys got elected to high places. It’s not because of their political party affiliation. It’s because they aren’t people of conviction, particularly Newt. Bush is just "limited." Gingrich is a smart, well-spoken guy wrapped around a reptilian soul. Both are aptly named.

After his retirement in 1987, Goldwater described the conservative Arizona Governor Evan Mecham as "hardheaded" and called on him to resign, and two years later stated that the Republican party had been taken over by a "bunch of kooks". In a 1994 interview with the Washington Post the retired senator said,

When you say "radical right" today, I think of these moneymaking ventures by fellows like Pat Robertson and others who are trying to take the Republican party and make a religious organization out of it. If that ever happens, kiss politics goodbye.

In response to Moral Majority founder Jerry Falwell’s opposition to the nomination of Sandra Day O’Connor to the Supreme Court, of which Falwell had said, "Every good Christian should be concerned", Goldwater retorted: "Every good Christian ought to kick Falwell right in the ass." Goldwater also had harsh words for his one-time political protege, President Reagan, particularly after the Iran-Contra Affair became public in 1986. Journalist Robert MacNeil, a friend of Goldwater’s from the 1964 Presidential campaign, recalled interviewing him in his office shortly afterward. "He was sitting in his office with his hands on his cane…and he said to me, ‘Well, aren’t you going to ask me about the Iran arms sales?’ It had just been announced that the Reagan administration had sold arms to Iran. And I said, ‘Well, if I asked you, what would you say?’ He said, ‘I’d say it’s the god-damned stupidest foreign policy blunder this country’s ever made!’", [though aside from the Iran-Contra scandal, Goldwater thought nonetheless that Reagan was a good president]. Also, in 1988 during that year’s presidential campaign, he pointedly told vice-presidential nominee Dan Quayle at a campaign event in Arizona "I want you to go back and tell George Bush to start talking about the issues."

Some of Goldwater’s statements in the 1990s aggravated many social conservatives. He endorsed Democrat Karan English in an Arizona congressional race, urged Republicans to lay off Bill Clinton over the Whitewater scandal, and criticized the military’s ban on homosexuals: "Everyone knows that gays have served honorably in the military since at least the time of Julius Caesar." He also said, "You don’t have to be straight to be in the military; you just have to be able to shoot straight." A few years before his death he went so far as to address the right wing,

"Do not associate my name with anything you do. You are extremists, and you’ve hurt the Republican party much more than the Democrats have."

In 1996, he told Bob Dole, whose own presidential campaign received lukewarm support from conservative Republicans: "We’re the new liberals of the Republican party. Can you imagine that?

Not that it matters in the scope of things, but Rush has really porked up since his web-site pictures were taken…

Any Indictment of Interrogation Policy Makers Would Face Several Hurdles
By CHARLIE SAVAGE
April 22, 2009

… One thing could change that dynamic, however. The Justice Department’s Office of Professional Responsibility has been investigating the work of lawyers who signed off on the interrogation policy, and is believed to have obtained archived e-mail messages from the time when the memorandums were being drafted. If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers, then prosecutors could make a case that the officials knowingly broke the law…

Arlen Specter’s decision to leave the Republican Party in name as he left it in spirit over the stimulus vote is further proof that high taxes, big spending and big government are unacceptable to Republican voters. This switch is a function of personal survival and will make clearer the profound difference between the Democratic Party of big government, big bureaucracy, high taxes and big unions and the Republican Party of lower taxes, less bureaucracy and small business, with its emphasis on work ethic, civil society and local control back home.

When congressional Republicans forgot that their party was the party of taxpayers and government reformers they lost control in 2006. When they accepted the Bush big spending plans of 2008 they further lost ground. When Sen. Specter voted for a $787 billion big spending bill no elected official had even read, he widened the gap between himself and the tax-paying small-government conservatives who are the base of the Republican Party.

It is clear that Specter concluded he would lose the coming Republican primary, and he admits in his statement today that the vote for the $767 billion spending bill was the final straw. This defection will make the 2010 and 2012 elections an even clearer choice of two directions for America.

Arlen Specter is a rational conservative person. I feel sorry that he was expelled from his own political party for being rational. Of course we welcome him to the Democratic Party as a conservative person. There’s plenty of room for a conservative over here. The distinction between the parties is changing from Conservative versus Liberal to…

The Senate Armed Services Committee Report [Inquiry Into the Treatment Of Detainees In U.S. Custody, November 20, 2008] was released finally on April 22, 2009. It is 283 pages long and unlikely to be read in its entirity by anyone except lunatics like me. It’s a blockbuster. I’ve republished the conclusions in hopes it will receive the widest possible readership. This Report is a credit to Senators Levin and McCain who head that Committee. It has quite a story to tell [told better in 283 pages than in 4]…