Blog on the Run: Reloaded

Tuesday, May 11, 2010 5:42 pm

If Obama and Holder were honest and ethical …

… and if wishes were ponies, the Justice Department would have coughed up information related to the destruction of e-mails on torture a long, long time ago or else John Conyers, chairman of the House Judiciary Committee, who asked for the info on March 1, would’ve issued subpoenas and then held some senior Justice officials in contempt and locked their butts up when the information was not forthcoming.

Here in the real world, it falls to the nonprofit Citizens for Responsibility and Ethics in Washington to take the legal action that Justice itself or the Congress should have taken long ago. And, sadly, CREW cannot, itself, lock up recalcitrant Executive Branch stonewallers.

Still, at some point, some judge is going to show less patience than John Conyers, and I wouldn’t want to be working for Eric Holder when that happens.

Sunday, February 28, 2010 10:37 pm

Prosecute ’em all, and let the courts sort ’em out

Filed under: I want my country back. — Lex @ 10:37 pm
Tags: , ,

One “defense” offered by former Justice officials John Yoo and Jay Bybee to the offensive suggestion that they tried to circumvent ignored international law banning to approve torture basically amounts to, “Well, if you’re gonna go after us, you’ve got to go after everybody else who said it was OK, too!”

Guys, I’m more than fine with that. Heck, I’d even raise taxes to pay for it. Just sayin’.

Thursday, February 25, 2010 11:39 pm

Lock him up

More evidence, were more needed, that Justice Department official David Margolis has crossed a line no lawyer should cross.

Who watches the watchers?

Related: During his tenure as chairman of the Senate Intelligence Committee between 2002 and 2007, Republican Sen. Pat Roberts of Kansas told the CIA that destroying evidence of crimes was just dandy with him. Have I mentioned lately how much I miss Nancy Kassebaum?

Wednesday, February 24, 2010 11:18 pm

I couldn’t agree more

ICTJ: We need more investigation of John Yoo and Jay Bybee:

“A full accounting of US policy on torture following the attacks of September 11, 2001 is more important than ever,” said Hanny Megally, ICTJ’s Interim President. “The report is enlightening and chilling. It relates in detail how the lawyers tailored their memos to justify torture and to prevent accountability, marking a critical turning away from US respect for the rule of law. The United States will only manage to fully reverse this devastating policy and the actions it empowered by reaffirming accountability as an indispensable control on the abuse of power. This requires an independent investigation of the full story of US counterterrorism operations and abuses, prosecution of those most responsible for wrongdoing, continued reform of laws and institutions to prevent abuses in the future, and appropriate redress for victims of torture,” he concluded.

The director of ICTJ’s US Accountability Project, Lisa Magarrell, said that, “The OPR report conveys very clearly that the overriding concern of the White House at the time was not to ensure by careful, objective legal analysis that torture, cruel and degrading treatment of detainees were prevented and violators held to account, as both US and international law require. Rather, the authors of the torture memos went to great lengths to give the White House, CIA and others involved in counterterrorism operations advance legal cover and assurances that they could torture with impunity.” …

I have read the defenses of David Margolis’s report offered (or linked to) by several people who have corresponded with me about this. And for me it comes down to this: Yoo and Bybee, without any legal basis and while ignoring crucial precedent making waterboarding a crime, told the administration not only that it could do what it wanted but also that what it had already done in clear violation of the UN Convention Against Torture was OK.

The UNCAT’s language is simple, clear and unambiguous. It specifically rules out the defenses offered by Yoo and Bybee and their defenders. It explicitly bars treatment even substantially less severe than waterboarding. And, having been signed in ’88 and ratified in ’94 by the U.S., it is, under the Constitution, part of the “supreme law of the land,” not something that can be simply disregarded by a Justice Department bureaucrat.

The Senate Judiciary Committee is supposed to be having a hearing on this subject Friday. Chairman Pat Leahy is a former prosecutor. It would be nice to think that he’ll be asking the right questions, but then this is Leahy we’re talking about. And Greensboro’s own Howard Coble, also a former prosecutor, has been absolutely no damn help on this at all.

(h/t: Jill)

Sunday, February 21, 2010 12:38 am

Bad judgment and then some: Protecting the war criminals makes the lawyers criminals, too.

With all due respect to my friend and neighbor Fred’s high opinion of Justice Department official David Margolis, Margolis’ conclusion that legal memocraft by Bush officials John Yoo and Jay Bybee in 2002 constituted poor judgment but not professional misconduct basically means that there’s no longer any way any American can commit a war crime:

The chief author of the Bush administration’s “torture memo” told Justice Department investigators that the president’s war-making authority was so broad that he had the constitutional power to order a village to be “massacred,” according to a report by released Friday night by the Office of Professional Responsibility.

The views of former Justice lawyer John Yoo were deemed to be so extreme and out of step with legal precedents that they prompted the Justice Department’s internal watchdog office to conclude last year that he committed “intentional professional misconduct” when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects.

The report by OPR concludes that Yoo, now a Berkeley law professor, and his boss at the time, Jay Bybee, now a federal judge, should be referred to their state bar associations for possible disciplinary proceedings. But, as first reported by NEWSWEEK, another senior department lawyer, David Margolis, reviewed the report and last month overruled its findings on the grounds that there was no clear and “unambiguous” standard by which OPR was judging the lawyers. Instead, Margolis, who was the final decision-maker in the inquiry, found that they were guilty of only “poor judgment.”

The report, more than four years in the making, is filled with new details into how a small group of lawyers at the Justice Department, the CIA, and the White House crafted the legal arguments that gave the green light to some of the most controversial tactics in the Bush administration’s war on terror. They also describe how Bush administration officials were so worried about the prospect that CIA officers might be criminally prosecuted for torture that one senior official – Attorney General John Ashcroft – even suggested that President Bush issue “advance pardons” for those engaging in waterboarding, a proposal that he was quickly told was not possible.

At the core of the legal arguments were the views of Yoo, strongly backed by David Addington, Vice President Dick Cheney’s legal counsel, that the president’s wartime powers were essentially unlimited and included the authority to override laws passed by Congress, such as a statute banning the use of torture. Pressed on his views in an interview with OPR investigators, Yoo was asked:

“What about ordering a village of resistants to be massacred? … Is that a power that the president could legally -”

“Yeah,” Yoo replied, according to a partial transcript included in the report. “Although, let me say this: So, certainly, that would fall within the commander-in-chief’s power over tactical decisions.”

“To order a village of civilians to be [exterminated]?” the OPR investigator asked again.

“Sure,” said Yoo.

Yoo is depicted as the driving force behind an Aug. 1, 2002, Justice Department memo that narrowly defined torture and then added sections concluding that, in the end, it essentially didn’t matter what the fine print of the congressionally passed law said:The president’s authority superseded the law and CIA officers who might later be accused of torture could also argue that were acting in “self defense” in order to save American lives.

This is the “I’m-putting-my-fingers-in-my-ears-and-chanting-nyah-nyah-nyah-I-can’t-hear-you” school of jurisprudence. John Yoo was arguing that the UN Convention Against Torture, the Geneva Conventions and related U.S. criminal statutes either didn’t exist or existed but don’t apply. (Moreover, he was doing it to cover for crimes that, by May 2002, had already happened, in particular the torture of Abu Zubaydah — a fact of which Yoo and Bybee were aware at the time and of which Margolis had to be aware by the time he began his review.)

Yoo’s legal thinking was so fundamentally flawed that career staffers in the Justice Department’s Office of Professional Responsibility had concluded that Yoo and Bybee’s actions constituted “intentional professional misconduct.” (Do you realize how bad their conduct had to be for other government lawyers to turn on them like that?) That designation could lead to disbarment proceedings; in the case of Bybee, who is now a federal judge, it also could be grounds for impeachment. Not only that, but John Ashcroft — John Ashcroft! — was so certain that what Justice was being asked to bless was wrong that he actually tried to get people pardoned in advance. If he thought there was any way to defend a legal opinion blessing the torture, why do you suppose he thought the torturers would need pardons?

But Margolis, apparently having concluded that “Don’t pretend you can commit crimes against humanity with impunity” is somehow less a self-evident standard than, say, “Don’t intentionally run over pedestrians,” is now overturning the sober consideration of career staff and claiming no harm, no foul. And we’re all just supposed to nod and say “OK” and move on to other things.

Well, hell, no.

As the New York Times observes, Margolis “said the ethics lawyers, in condemning the lawyers’ actions, had given short shrift to the national climate of urgency in which Mr. Bybee and Mr. Yoo acted after the attacks of Sept. 11, 2001.” Sorry, but that makes it even worse: It is precisely at the times of utmost stress that the nation’s most senior enforcers of laws must be most vigilant to see that the government follows the law. There’s no “But our buildings just got bombed!” or “But — but — but — we were all SKEEEEERED then!” exception to the U.N. Convention Against Torture. Part 1, Articles 2 and 3, specifically state:

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Mr. Margolis, Fred doesn’t bestow praise lightly, and I don’t take his regard for you lightly. But from where I sit, you’ve just made yourself an accessory to torture and murder as well as another candidate for disbarment. Sanctioning an argument that the president has the legal right to order another Lidice isn’t just poor judgment, it isn’t just intentional professional misconduct, it’s also criminal lunacy and its perpetrator is a menace to humanity.

And if all I can do about it is scream in outrage in the middle of the night, well, at least I’m going to do that.

UPDATE: Law prof Jonathan Turley rips Margolis a new one:

I mean, “bad judgment” is when you make unfortunate choices in dinner guests; it’s not when you support a torture program. And what we’re seeing right now is the dismantling of precedent that we created at Nuremberg, when we said that you can’t facilitate war crimes as lawyers and say that it was simply bad judgment. Everyone who commits war crimes often thinks about their own accountability. They often go to lawyers to facilitate them. That’s why they were so critical [of German lawyers] at Nuremberg. And what we’re seeing now is that we’re just treating it like just a bad day, and it’s more than that. What we’re losing in all of this is one of the core principles of Nuremberg. …

If you can’t be held accountable for facilitating war crimes, something that they don’t really discuss in this report, then when can you be held accountable? I mean, this is it. I mean, this is the worst-case scenario. And so what the Justice Department has done is carved out for itself a standard that it can never fail, that even supporting torture is just bad judgment. In this report, it’s astonishing what you read. With Bybee — who is a judge, who’s sitting in judgment on others right now — is accused in this report of leaving out critical cases, of — of leaving out weaknesses. In one case he said he just assumed that Gonzalez would know about the limitations of this type of executive claim, or the limitations on a good-faith defense. He just assumed he’d know that, and instead they produce this report, which was a roaring endorsement of torture. That’s being treated as, in the report, as, quote, incomplete legal analysis. It’s not incomplete. It’s, it’s willful blindness. It’s an attempt to defend a flawed legal theory to support a torture program. …

A lot of it will be particularly interesting to law professors and legal experts in the extent to which people like Bybee, who really comes off badly in this report, left out critical pieces of precedent, where he was aware of Supreme Court cases that go the other way and he just leaves them out of the memo. In one case they rely on language in the United Nations Convention Against Torture that was never ratified, and yet they treat it as if it were. I mean, that’s the degree of misrepresentation that is in this memo [that Yoo and Bybee wrote]. The Justice Department doesn’t really deal with that and it does certainly not deal with what they’re doing with the Nuremberg standards. Instead they just say that, you know, they’re wrong, they’re incomplete, they’re showing bad judgement, uh, but that’s not something that they should necessarily be punished for, even though people were tortured as a result of their advice. …

If this report [had] existed back in Nuremberg, it would have resulted in acquittals for all of the people that we sentenced. But this is a bloody nightmare for civil libertarians. We have an ex-vice president who’s proudly proclaiming how he’s supported torture. We have a current president who is preventing any serious investigation of torture. If torture is so bad, imagine what it’s like to try to protect alleged torturers, war criminals, and that’s the really dark period we’re finding, where we’re all wondering, “Where did our principles go?”

Former federal prosecutor Marcy Wheeler is doing a line-by-line analysis on the OPR report and Margolis’ work here.

(Revised and updated multiple times after initial posting)

Saturday, January 30, 2010 12:29 am

Odds and ends for 1/29

I’ve already called for impeaching Obama. Looks like we can now add Holder to the mix: A draft report from the Justice Department’s Office of Professional Responsibility that originally found that Bush officials Jay Bybee (now a federal judge) and John Yoo (now a “law” “professor” at Berkeley) committed professional misconduct (which would constitute grounds for impeaching Bybee), the final version was cleaned up to say they showed “poor judgment” only. Granted, fabricating a legal justification for torture out of whole cloth does show “poor judgment,” but it shows criminal intent as well.

Well, OK, it’s a first step: Pravda, of all places, reports that Francis A. Boyle, a professor at the University of Illinois College of Law in Champlain, Ill., has requested arrest warrants from the International Criminal Court in The Hague for the arrests of Bush, Cheney, Rumsfeld, Tenet, Rice and Gonzalez for “crimes against humanity” under the Rome Statute, which established the court. For all I know this is an Eastern Hemisphere version of an Onion article, but, hey, a citizen can dream.

Well, this bites: More than 30% of Triad mortgages will be under water by 1Q2011, Deutsche Bank estimates.

Historians finally weigh in Jonah Goldberg’s “Liberal Fascism.” Only two years after the fat, lying putz laughed his way to the bank. Thanks a ton, guys.

Banksters organize protest of their treatment … indoors, because it was too cold to go outside. Power to the people!

Bloomberg’s David Reilly asks a good question about this week’s bankster-related developments: Where’s the anger? (Besides Chez Blog on the Run, of course.)

Major-league media?: The Los Angeles Times’ Andrew Malcolm keeps using the phrase “discretionary spending.” I do not think that phrase means what he thinks it means.

Every little bit helps: Somali “pirates” pledge aid to Haiti. (Somali pirates’ est. 2008 income: $150MM+).

Possibly the most entertaining appeals court ruling of the year, and it’s still only January: Gender discrimination in the workplace as manifested by rude language (Oh, so NSFW, by the ruling’s own standards).

What’s stopping the Senate from ramming through a public option in reconciliation? I’m just askin’, on account of 51 breathing senators are on records as supporting one. Seriously, Joe Lieberman can go to hell.

Party of fiscal responsibility, my butt: Every single Republican senator voted Thursday against a new pay-as-you-go rule. Every single Democratic senator voted for it. Remind me again, please, who the grownups are. Quoth commenter Chad N. Freude at Balloon Juice: “They are opposed to pay-as-you-go because they are opposed to go.”

Whoux Dat?; or, There’s a reason they call it the No Fun League: Because you can’t abbreviate No Brains League as NFL. No Frontal Lobe, maybe. (h/t: DivaGeek)

The U.S. economy shrank 2.4% in 2009, the worst calendar-year performance since 1946.

California Senate approves single-payer health-care system; the Governator vetoes it on the laughable grounds that the state “can’t afford it.” Dude, you pay either way, and with single payer, there’s an excellent chance you’d pay less.

Terrorist convicted: The jury deliberated only 37 minutes before finding Scott Roeder guilty of first-degree murder for shooting abortion provider Dr. George Tiller in the head at point-blank range. Roeder admitted the shooting and also testified that he considered only chopping off Tiller’s hands instead of killing him. What a great humanitarian. Memo to New York: If Wichita can try a terrorist, so can you. Memo to the Republicans: Americans are beyond tired of government by incontinence.

I’m probably the last person to find this out, but the free audio-editing program Audacity can record streaming audio from, apparently, any Web site. This makes me insanely happy.

So Obama got together with some Congressional Republicans today. And it’s John Cole of Balloon Juice, who, despite humerus- and-clavicle- and scapula-scraping surgery a couple of days ago, is flying without painkillers, For The Win: “If Mike Pence really is regarded as one of the deep thinkers for the GOP, I’m beginning to understand why they refused to admit Terri Schiavo was brain-dead.” Although the prez himself does nicely with the runner-up: “I would have implemented those ideas had I found a credible economist who agreed with them …”

Monday, April 20, 2009 8:27 pm

Impeach Jay Bybee

Filed under: I want my country back. — Lex @ 8:27 pm
Tags: ,

John Yoo’s name might be better known in the context of the torture memos, but the guy who ultimately was in charge of preparing those memos was Jay Bybee. Bybee was rewarded for his service to the Bush administration by a lifetime appointment to the U.S. 9th Circuit Court of Appeals. The Senate confirmed him, but that was before his role in justifying torture became public knowledge.

Bruce Ackerman makes a strong case for impeaching Bybee. The Los Angeles County Democratic Party approved a pro-impeachment resolution unanimously, and the state party will be considering one.

Even if Bybee is impeached, there are at least two reasons why he might well not be convicted and removed from office: 1) He might be able to mount an effective defense; and 2) it would take a two-thirds majority in the Senate to convict him, and the odds that at least 34 senators approve of torture are actually pretty high.

But impeaching him is still the right thing to do. At the very least, the debate would be enlightening. More importantly, anyone who would conjure up memos like those, documents that say, without any justification, that it’s OK to violate U.S. and international law, has no business even holding a law license, let alone sitting in judgment of others on one of the highest courts in the land.

Any movement to impeach likely would begin in the House Judiciary Committee, and as it happens, two Triad representatives, Republican Howard Coble and Democrat Mel Watt, sit on that committee. Please contact them and ask them to begin the process of removing a torture enabler from the bench.

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