1 Boring Old Man

Four score and seven years ago our fathers brought forth, upon this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived, and so dedicated, can long endure. We are met here on a great battlefield of that war. We have come to dedicate a portion of it as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But in a larger sense we can not dedicate – we can not consecrate – we can not hallow this ground. The brave men, living and dead, who struggled, here, have consecrated it far above our poor power to add or detract. The world will little note, nor long remember, what we say here, but can never forget what they did here.

So here we sit after a couple of centuries dealing with the same question. Do we honor those who died in the attack on New York by staying dedicated to the proposition that all men are created equal? Or do we decide that our attackers are not worthy of being treated as fellow human beings because of what they did? Lincoln struggled with that himself. He hated Slavery, yet he suspended habeas corpus for the prisoners of war – a fact Dick Cheney has brought up more than once. On the other hand, he opposed retribution on the Southerners after the Civil War. And he certainly did not have a torture policy nor a John Yoo writing memos to cover his ass. And as the Civil War wore on, there were powerful anti-war forces paradoxically and ambivalently lead by Lincoln’s General:

George Brinton McClellan was a major general during the American Civil War. He organized the famous Army of the Potomac and served briefly as the general-in-chief of the Union Army. Early in the war, McClellan played an important role in raising a well-trained and organized army for the Union. However, although McClellan was meticulous in his planning and preparations, these attributes may have hampered his ability to challenge aggressive opponents in a fast-moving battlefield environment. He chronically overestimated the strength of enemy units and was reluctant to apply principles of mass, frequently leaving large portions of his army unengaged at decisive points.

McClellan’s Peninsula Campaign in 1862 ended in failure, with retreats from attacks by General Robert E. Lee’s smaller army and an unfulfilled plan to seize the Confederate capital of Richmond. His performance at the bloody Battle of Antietam blunted Lee’s invasion of Maryland, but allowed Lee to eke out a precarious tactical draw and avoid destruction, despite being outnumbered. As a result, McClellan’s leadership skills during battles were questioned by U.S. President Abraham Lincoln, who eventually removed him from command, first as general-in-chief, then from the Army of the Potomac. Lincoln was famously quoted as saying, "If General McClellan does not want to use the army, I would like to borrow it for a time." Despite this, he was the most popular of that army’s commanders with its soldiers, who felt that he had their morale and well-being as paramount concerns.

General McClellan also failed to maintain the trust of Lincoln, and proved to be frustratingly insubordinate to the commander-in-chief. After he was relieved of command, McClellan became the unsuccessful Democratic nominee opposing Lincoln in the 1864 presidential election. His party had an anti-war platform, promising to end the war and negotiate with the Confederacy, which McClellan was forced to repudiate, damaging the effectiveness of his campaign…

For the years from 2000 through 2008, we heard the same kind of rhetoric – patriotism, defending America, the "Axis of Evil." We were told that every one of the huge decisions being made was done with our best interests at heart. We went to war with Iraq because Saddam Hussein was an immediate threat with nuclear and biological weapons pointed our way. We were told that Joseph Wilson’s questioning the prewar intelligence was motivated by a junket set up by his wife. We were told that Domestic Surveillance wasn’t being abused and was good for us. We were told that we didn’t torture people. We were also told that the things that looked like torture were for our national security. We were told that DoJ Attorneys were fired "just because." Everything that was done was Lincoln-esque, they said. We were honoring the fallen.

Well, the Taliban is now marching on the capital of Pakistan. If bin Laden has survived his diabetes, he’s holed up in the Pakistani bad-lands. Iraq is still smoldering. All of the things they told us were good for us haven’t turned out as they said. If there was an "Axis of Evil," they went after the wrong one. It’s turning out that the motive for our torturing prisoners was to get them to confirm something that wasn’t actually true – that Hussein was behind 911. Now we’re reading memos that say the unspeakable torture by the C.I.A. was consistent with "a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal." Any school child would know that is absolute baloney. Frankly, I’d rather hear that we tortured people because we were mad at them than to hear we were trying to get them to confirm the Bush Administration’s reasons for going to war.

Abraham Lincoln said, "It is rather for us to be here dedicated to the great task remaining before us – that from these honored dead we take increased devotion to that cause for which they here gave the last full measure of devotion – that we here highly resolve that these dead shall not have died in vain; that this nation shall have a new birth of freedom; and that this government of the people, by the people, for the people, shall not perish from the earth." I believe he meant just that. And I have something of the same feeling about the people who died in the 9/11 attack on New York. We ran the Taliban out of Afghanistan. Now they’re coming back, not just to Afghanistan but they’re marching on Islamabad. And they are as dangerous to Iraq and Iran as they are to us. They dehumanize the people in their wake just as they dehumanized those New Yorkers.

Our government failed us in many ways in these last eight years, not the least of which was a failure to deal with our real enemy. They made up the fight they wanted to fight, and avoided the one that needed fighting. They macerated our Constitution, and in the process validated the insane view this particular enemy has of us. We had a Lincoln-esque moment, and we missed it. We lost 3000+ in New York. We’ve lost 4000+ more in the Middle East. We’ve lost a big piece of our soul. Now, we have an enormous domestic problem – one largely caused by our own government’s fiscal short-sightedness and mismanagement. And we still face an enemy – the Taliban and al Qaeda – that reins unchecked in the uncivilized regions of the Middle East.

Zelikow’s Destroyed Memos
By emptywheel on Philip Zelikow

Last night, as I was beginning my catalog of the interrogation reports used in the 9/11 Report, the former Executive Director of the 9/11 Commission was on Rachel Maddow, elaborating on his Foreign Policy article where he revealed how the Bush Administration destroyed his objections to the May 2005 Bradbury Memos.

Anonymous Liberal had a very good take on Zelikow’s story (which basically matches what bmaz said to me via email). The destruction of Zelikow’s memos is clear evidence of criminality.

That’s an incredibly damning allegation. The only reason to collect and destroy all copies of this memo would be in order to preserve, for as many Bush administration officials as possible, a potential defense against later prosecution. If the extent of these activities ever became public and investigations were commenced, the White House wanted to be able to argue that everyone involved relied in good faith on the advice of counsel. That defense would be severely undermined if it could be shown that these officials were warned, by a lawyer of Zelikow’s caliber and rank within the administration, that the legal arguments they were relying on were poorly reasoned and unlikely to be sustained by a court.

This was pure CYA. And it was being done for reasons beyond the potential for political fallout. It was done in order to preserve the illusion of good faith reliance on OLC advice in the event of future criminal prosecutions. This is yet another reason why a special prosecutor needs to be appointed. While I agree with the decision by Eric Holder not to pursue prosecutions against CIA officials who relied in good faith on OLC advice (and did not exceed the scope of that advice), it is becoming increasingly clear that there were people (likely high ranking intelligence officials and people in the White House) who were explicitly warned (likely repeatedly) of the shoddy and highly dubious nature of the OLC’s advice. These folks should not be entitled to any presumption of good faith reliance. They need to be investigated. The attempt to scrub Zelikow’s memo from the record looks to me like an act of criminal conspiracy intended to preserve plausible deniability about the illegal nature of various government activities.

UPDATE: The expunging of Zelikow’s memo from the record is not the only thing the Bush administration has done to hinder the possibility of prosecution. Remember that all the tapes of these interrogations were destroyed or went missing at around the same time. I doubt that’s a coincidence.

Zelikow doesn’t make AL’s point as explicitly as AL does: he says only that they’ll have to explain why they destroyed those memos and doesn’t think about the maintenance of plausible deniability for the torturers. But it’s a good question. So who’s going to ask that question?

The OLC "torture memos": thoughts from a dissenter
4/21/2009
By Philip Zelikow

I first gained access to the OLC memos and learned details about CIA’s program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice’s policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues. In the State Department, Secretary Rice and her Legal Adviser, John Bellinger, were then the only other individuals briefed on these details. In compliance with the security agreements I have signed, I have never discussed or disclosed any substantive details about the program until the classified information has been released.

Having been the executive director of the 9/11 Commission, I’m aware of what some of these captives did. The Commission wondered how captives were questioned (for details on that, see this previously disclosed report), and the matter is now the subject of a federal criminal investigation by special prosecutor John Durham. Nonetheless, the evidence against most – if not all – of the high-value detainees remains damning. But the issue is not about who or what they are. It is about who or what we are.

…

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that:  The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives. 

Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:

• the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA’s methods;

• the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.

• the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law – whatever the alleged gain.

The underlying absurdity of the administration’s position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail. 

In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest – if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.  

The story is finally fleshing out. The Bushies came into office dead set on attacking Iraq. Motives? Probably a combination of the "tough on Communism" mentality, the "military-industrial complex," and access to Middle Eastern oil fields [with a dash of Israeli-backed fervor]. They saw 9/11 as a chance to go start their war and developed the WMD/al Qaeda story as a cover. When there were no WMD’s nor al Qaeda ties, they did everything possible to keep the myth alive – outing a C.I.A. Agent, lying, reframing the War, destroying tapes and memos, secrecy, trying to torture a confirming story out of prisoners – all the while being mindful to develop as many C.Y.A. strategies as they could muster.

For me, it was the third grade [Mrs. D.]. I told so many whoppers about the fate of my homework or having completed the boring worksheets from her "ditto" machine, that I lost track of yesterday’s version. Like many, I figured out that it was not the right way to go with life. Lying was just too hard, and it just didn’t work – at least not in the long run. I could tell Mrs. D. was onto my stories and I backed off. As fate would have it, several years later, I moved and Mrs. D. lived around the corner. in my new neighborhood. I tried to avoid her, but sooner or later I found myself sitting on her front porch. To my surprise, instead of it being a Judgement at Nuremberg moment, when I tried to broach the subject of my failed attempt at becoming a sociopath in her third grade class, she laughed a good laugh and said, "You learned a whole lot that year." And she was right. I did learn a lot.

• The SASC Smoking Gun on Waterboarding
• SASC Torture Report, Working Thread
• Cheney Plans to Continue to Manufacture Intelligence
• OLC + CIA = CYA
• Those CIA Employees Don’t LOOK Pissed that Obama Released the Torture Memos
• Is There a 2003 Waterboarding Memo We’re Missing?
• The CIA IG Report: Is Waterboarding KSM 183 Times Really Effective?

I think all of this would be more palatable if it was only soon after 9/11 – the heat of the moment. But it continued in spite of a lot of resistance. The word "perseveration" comes to mind. It’s something demented people do – get stuck on something and keep at it ad nauseum. I feel the same way about their Iraq War. It was a bad idea to start with. But they kept at it as if it had become a cause unto itself disconnected from any previous meaning.The unwarranted Domestic Surveillance fit the same scenario – persisting no matter what objections were raised.

GOP: WH ‘overstepped their bounds’
Monday, April 20, 2009
by Domenico Montanaro

Senate Republican Saxby Chambliss, a member of the Intelligence and Armed Services committees, today said in the effort to embarrass former President Bush, the Obama administration "overstepped their bounds" in releasing interrogation memos last week. 

"It seems that this administration looks for every opportunity they can to seek to embarrass the previous administration,” Chambliss said at a news conference. “And I think this is one time they really overstepped their bounds."

Citing the fact that there hasn’t been a terrorist attack on U.S. soil since 9/11, Chambliss added, "Whatever the previous administration did, under the guise of the legal opinions that the Justice Department issued, it’s worked. And the American people have a great appreciation for that."

He added, "There are some things that when you operate in the cloak-and-dagger world of the intelligence community that need to remain in the intelligence community"…

At the risk of extreme pedantry, the distinction between transitive and intransitive verbs has a meaning worth considering in our thoughts about the Torture Memos. A transitive verb has an object eg <a mirror reflects light>. An intransitive verb has no object. It is an action performed by the subject, but performed on nothing else. In a sense, reflect is a perfect example. In it’s second meaning, it means look in the mirror and think about what you see. My previous posts about those Torture Memos are about looking at what they did and what to do about them. I make no apology about that. Something needs to be done.

this is a time for reflection, not retribution…

1. All of this Torture business was done in secret. The only oversight was hack DoJ lawyers who wrote these obscene Memos justifying unjustifiable atrocities. In my mind, they betrayed their profession and our country. It is a matter for the courts and that’s where it should be sent forthwith. Professional censure at the least, criminal prosecution if possible. In the end, the Law is our way of saying what is unacceptable. What they did was unacceptable.
2. All of this insanity during the last eight years – Imperial presidency, torture, invading Iraq, Domestic Surveillance, Outing a C.I.A. Agent, lying about Intelligence, etc. was manipulating our system rather than representing it. They cannot be impeached – the time has passed. I think that Leahy’s idea of a Truth Commission is the best. To use Obama’s words, we cannot "reflect" until we know what happened. We need to know it all – all of us. Then we can reflect.

The Torturers’ Manifesto
Editorial

New York Times
April 18, 2009

^{To read the four newly released memos on prisoner interrogation written by George W. Bush’s Justice Department is to take a journey into depravity. Their language is the precise bureaucratese favored by dungeon masters throughout history. They detail how to fashion a collar for slamming a prisoner against a wall, exactly how many days he can be kept without sleep (11), and what, specifically, he should be told before being locked in a box with an insect — all to stop just short of having a jury decide that these acts violate the laws against torture and abusive treatment of prisoners.}

^{In one of the more nauseating passages, Jay Bybee, then an assistant attorney general and now a federal judge, wrote admiringly about a contraption for waterboarding that would lurch a prisoner upright if he stopped breathing while water was poured over his face. He praised the Central Intelligence Agency for having doctors ready to perform an emergency tracheotomy if necessary. These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values…}

^{But this cannot be the end of the scrutiny for these and other decisions by the Bush administration. Until Americans and their leaders fully understand the rules the Bush administration concocted to justify such abuses — and who set the rules and who approved them — there is no hope of fixing a profoundly broken system of justice and ensuring that that these acts are never repeated.}

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

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

^{These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it. After eight years without transparency or accountability, Mr. Obama promised the American people both. His decision to release these memos was another sign of his commitment to transparency. We are waiting to see an equal commitment to accountability.}

Divisions Arose on Rough Tactics for Qaeda Figure
By SCOTT SHANE
April 17, 2009

The first use of waterboarding and other rough treatment against a prisoner from Al Qaeda was ordered by senior Central Intelligence Agency officials despite the belief of interrogators that the prisoner had already told them all he knew, according to former intelligence officials and a footnote in a newly released legal memorandum. The escalation to especially brutal interrogation tactics against the prisoner, Abu Zubaydah, including confining him in boxes and slamming him against the wall, was ordered by officials at C.I.A. headquarters based on a highly inflated assessment of his importance, interviews and a review of newly released documents show.

Abu Zubaydah had provided much valuable information under less severe treatment, and the harsher handling produced no breakthroughs, according to one former intelligence official with direct knowledge of the case. Instead, watching his torment caused great distress to his captors, the official said. Even for those who believed that brutal treatment could produce results, the official said, “seeing these depths of human misery and degradation has a traumatic effect.”

C.I.A. officers adopted these techniques only after the Justice Department had given its official approval on Aug. 1, 2002, in one of four formerly secret legal memos on interrogation that were released Thursday. A footnote to another of the memos described a rift between line officers questioning Abu Zubaydah at a secret C.I.A. prison in Thailand and their bosses at headquarters, and asserted that the brutal treatment may have been “unnecessary”…

Quoting a 2004 report on the interrogation program by the C.I.A. inspector general, the footnote says that “although the on-scene interrogation team judged Zubaydah to be compliant, elements within C.I.A. headquarters still believed he was withholding information.”

I’m obviously having a "graph day." I usually post the National Debt as a percentage of the GDP, which corrects for inflation [the lower figure]. However, the upper figure [the absolute national debt] has a meaning of its own:

That level line in the upper figure that runs from about 1948 until 1981 means that there was no deficit spending. The National Debt is, after all, the Expenses Minus Revenues. Then came Reagan/Bush and Deficit Spending. Clinton balanced the Budget. Then came Bush Junior and more Deficit Spending.

Order extends U.S. probe of accountant in Madoff case
Apr 17, 2009

NEW YORK (Reuters) – The criminal investigation of an accountant accused of rubber-stamping the books of jailed swindler Bernard Madoff was extended on Friday for one month pending an indictment, further charges, or a plea, according to court papers. The accountant, David Friehling, who ran a small storefront firm in a suburb of New York, is the only person other than Madoff to be criminally charged in the biggest investment scam in Wall Street history.

"The government has requested a continuance of 30 days to engage in further discussions with counsel about the disposition of this case," the order in Manhattan federal court said. It said Friehling and his lawyer had consented to the continuance, which is typical in such cases. The government has until approximately May 17 to file further charges against Friehling. He could also be indicted by a grand jury or agree to plead guilty to certain charges.

Friehling is out on $2.5 million personal recognizance bond secured by four properties. His travel is restricted and he surrendered his passport. He was charged with fraud on March 18 after authorities said his audits of Bernard L. Madoff Investment Securities LLC were a pretense. He was not charged with direct knowledge of the scheme in which prosecutors said drew in $65 billion over 20 years. The U.S. Securities and Exchange Commission also filed civil charges against Friehling.

The accountant faces a maximum of 105 years in prison on the criminal charges, including securities fraud, aiding and abetting investment adviser fraud and false audit reports…