War Criminals

For your reading pleasure, a portrait of "doctors" Jim Mitchell and Bruce Jessen, the two psychologists/quacks who got rich by turning psycho-babble into a program of torture for the CIA:

In December 2001, a small group of professors and law enforcement and intelligence officers gathered outside Philadelphia at the home of a prominent psychologist, Martin E. P. Seligman, to brainstorm about Muslim extremism. Among them was Dr. Mitchell, who attended with a C.I.A. psychologist, Kirk M. Hubbard.

During a break, Dr. Mitchell introduced himself to Dr. Seligman and said how much he admired the older man’s writing on “learned helplessness.” Dr. Seligman was so struck by Dr. Mitchell’s unreserved praise, he recalled in an interview, that he mentioned it to his wife that night. Later, he said, he was “grieved and horrified” to learn that his work had been cited to justify brutal interrogations.

Dr. Seligman had discovered in the 1960s that dogs that learned they could do nothing to avoid small electric shocks would become listless and simply whine and endure the shocks even after being given a chance to escape.

Helplessness, which later became an influential concept in the treatment of human depression, was also much discussed in military survival training. Instructors tried to stop short of producing helplessness in trainees, since their goal was to strengthen the spirit of service members in enemy hands.

Dr. Mitchell, colleagues said, believed that producing learned helplessness in a Qaeda interrogation subject might ensure that he would comply with his captor’s demands. Many experienced interrogators disagreed, asserting that a prisoner so demoralized would say whatever he thought the interrogator expected.

Which, as we know, is pretty much what happened. But Jessen and Mitchell were rewarded handsomely for their work:

The business plans of Dr. Mitchell and Dr. Jessen, meanwhile, were working out beautifully. They were paid $1,000 to $2,000 a day apiece, one official said. They had permanent desks in the Counterterrorist Center, and could now claim genuine experience in interrogating high-level Qaeda operatives.

{...}

The company’s C.I.A. contracts are classified, but their total was well into the millions of dollars. In 2007 in a suburb of Tampa, Fla., Dr. Mitchell built a house with a swimming pool, now valued at $800,000.

When asked to comment, Mitchell responded with this:

In a brief e-mail exchange in June, Dr. Mitchell said his nondisclosure agreement with the C.I.A. prevented him from commenting. He suggested that his work had been mischaracterized.

“Ask around,” Dr. Mitchell wrote, “and I’m sure you will find all manner of ‘experts’ who will be willing to make up what you’d like to hear on the spot and unrestrained by reality.”

The irony is unintentional, I'm sure.

Legislative Update XIX

The House of Representatives passed bills to boost funding for food stamps, veterans programs, and foreign aid, particularly in Pakistan and Afghanistan. Meanwhile, director Leon Panetta confirmed that the CIA did lie to Congress, vindicating Speaker Pelosi's previous statements.

The Senate approved a homeland security funding bill that boosts efforts against illegal immigration and to improve cybersecurity. The Senate also voted again to block detainee abuse photos.

Saturday Morning Round-Up

1. A story in yesterday's Washington Post reveals that the Obama administration is considering drafting an executive order asserting the President's authority to detain terrorist suspects indefinitely without any judicial process. The White House denies that a draft order exists (via John Cole) thought there is no denial that they are considering such a move. I found this quote from the Post article to be particularly odd:

"...one administration official suggested that the White House is already trying to build support for an order. "Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order," the official said.

First of all, I would like this official to find me one civil liberties group that has argued for such a thing. Perhaps what he/she meant is that they'd rather have an executive order than a Bush-like assertion of authority that merely cites the Constitution, but there's essentially no difference between the two approaches legally. Also, they are arguing that such an order would permit them to get Congress' acquiescence in the closing of Guantanamo, an effort stymied by the various Democratic and Republican bed-wetters on the Hill. Which basically would amount to Obama saying to Congress "I double-pledge to hold terrorists forever if you will please let me shut down Guantanamo." But it seems to me like sending them Bermuda an the South Pacific was working out alright.

2. Gays and Lesbiasn are-rightly-angered as well at the Obama administration's shuffling approach towards gay rights. Don't Ask, Don't Tell, remains in place, the Obama DOJ is arguing before the courts to retain DOMA, and Obama's decision to extend federal benefits to domestic partners was praised until advocates realized that those benefits didn't include health care (doubly ironic, considering the President's present political battle over a national health care plan.) Arnold King, while not citing specifically to the administration's approach to gay rights, makes the point that the Obama administration has many agendas, but appears satisfied to half-ass meeting their goals on any of them.

3. For some conservative Christians, Sanford's weeping and rending of garments is enough for them to get over his infidelity and bizarre behavior. I'm sure the fact that he's a Republican politician has absolutely no bearing on their attitudes. But stories like this make it clear that for all of Sanford's talk, he was determined to continuing playing his own staff, his own state, and especially his own wife, until he got caught. Politically connected religious leaders and politicians may be quick to forgive, but other conservatives? Not so much.

4. Bob Herbert takes a look at the economy and calls a spade (a jobless recovery) a spade (no recovery at all.)

5. The Iranian government appears to be gaining the upper-hand against the protesters, though it also seems clear that the massive protests have revealed divisions in the leadership that may indicate long-term change.

6. Upon the news of Michael Jackson's death, I found myself wondering what condition his estate was in and upon whom would fall the unfortunate task of trying to sort it out. It appears he had at least one will, though no one knows it's contents yet. I predict there will be a gargantuan battle over his estate given the value still attached to his name and his music and the massive debt attached to much of his property, but I doubt it will interest the public as much as Anna Nicole Smith's highly publicized probate did, what with the absence of a childhood custody dispute. There can be no doubt though of Jackson's status as a mega-star, as the reaction to his death was almost more than the internet could bear.

7. You might've missed this news, but Wednesday the United States pulled off a shocking upset and defeated the number one team in the world 2-0 to advance to the final game of the Confederations Cup. Spain is praised for their ability to possess the ball, and it was expected that the U.S. would entrench upon defense and wait for their opportunities to counter. Instead, Spain committed uncharacteristic errors as the U.S. went with a strategy of heavily pressuring the ball and looking for quick counters, and remaining incredibly well-organized (and frankly, a little lucky) on defense. The strategy paid off with huge dividends; quick movement up the field led to a goal by Jozy Altidore, and a Spanish turnover led to a goal by Clint Dempsey. Altidore (after keeper Brad Guzan) was clearly man of the match. No telling if his outstanding play makes him the future of American soccer or another Eddie Johnson, but American soccer fans will take what they can get. The United States plays Brazil tomorrow, a team they already lost to in the first round, but against whom they might have a better chance if they play as decisively as they did against Spain.

8. I thought this article about Grandparents University at UNT was interesting. Grandparents and their grand-children apparently spend a weekend at the school's dorm and taking classes together, in a program designed to give young teenagers and tweeners a taste of college life, and some bonding time with their grand-parents.

UPDATE: Spencer Ackerman finds at least one civil libertarian to whom the Obama administration official might be referring with the above quote from the Post story; Kate Martin of the Center for National Security Studies:

Martin thinks that established law holds that the administration doesn't require any additional legal authorization to hold anyone captured on the battlefields of Afghanistan without charge until the end of hostilities -- that comes from the September 2001 Authorization to Use Military Force, as does dispensation for the 9/11 plotters -- but would need to charge or release any detainee picked up outside either Afghanistan or Iraq. Martin thinks the reported executive order might be the only thing standing in the way of an even broader congressional effort of the sort seen in the war supplemental that Daphne critiqued yesterday. Martin has expressed her organization's longstanding perspective on detainee matters to the administration's detentions task force.

So Martin supports it, but only to the extent that something from Congress might be worse. Given the way Congress has handled the possible closing of Gitmo this may be true, though I happen to think that Congress should be forced to craft an indefinite detention policy if that's what they want in exchange for closing Gitmo.

Glenn Greenwald has more though, as I've pointed out once before, he has a tendency to criticize the "many defenders" of Obama on various issues where Obama replicates Bush doctrines, without actually linking to or naming any of these defenders. Greenwald is a very thorough blogger, which is why I don't understand why he so eagerly reaches for the "some say" approach to blogging.

Wednesday Morning Reading

Some things for you to ponder this morning:

1. A senior cleric in Iran comes out against the election results. But were they rigged? Critics say yes.

2. Some analysis of Netanyahu's announcement that Israel would consider recognition of a Palestinian state. A step forward, but still balking on other important considerations like settlement expansion.

3. A Presidential election and some new laws, but the end result is the same; you can't trust the NSA not to spy on the American people.

4. Speaking of intelligence agencies, the CIA is fighting the release of it's own internal reports regarding interrogations of "high-value" detainees. Obviously, there's something in embarrassing in them.

5. Speaking of detainees, here are some people who don't wet their pants at the thought of being responsible for them.

6. Obama will announce that the federal government will extend benefits to the domestic partners, including same-sex partners and spouses, of federal employees.

7. The Obama administration is proposing regulatory changes that will broaden government oversight of banks and the financial markets.

8. And lastly, another great column of David Leonhardt at the New York Times. This time he takes on the scare word "rationing" and explains how health care is already rationed ineffeciently and unfairly everyday in America.

WSJ freaks out and misreports - surprise!

From First Read:

The Justice Department says there has been no change in policy on giving Miranda warnings to detainees picked up in Afghanistan.

An article in the Weekly Standard says the Obama administration has ordered a change in policy, requiring agents to give Miranda warnings to all detainees. In fact, agents have from time to time given Miranda warnings to some detainees who, it's thought, might end up being prosecuted in U.S. courts. This began in the last administration.

A DOJ spokesman says there's been no new policy directive.

"There has been no policy change and no blanket instruction issued for FBI agents to Mirandize detainees overseas," spokesman Matt Miller said. "While there have been specific cases in which FBI agents have Mirandized suspects overseas, at both Bagram and in other situations, in order to preserve the quality of evidence obtained, there has been no overall policy change with respect to detainees."

But hey, anything to attack the Obama administration - facts be damned.

UPDATE: Gen. Petraeus calls bullshit on this as well.

Bush White House Implicated in Early Detainee Abuse

As you may recall, we've had a discussion over the timeline of the earliest detainee abuse, prompted mostly by the recollections of FBI interrogator Ali Soufan. The recollections of Soufan, along with other scattered reports, make it clear that detainee abuse began well before the implementation of the harshest interrogation techniques (what we around here refer to as torture) following the Office of Legal Counsel's memo of August 1st, 2002 that approved of techniques like waterboarding for use against Abu Zubaydah. The question has been then, who approved of the techniques used prior to the August memo? According to Ari Shapiro at NPR (relying on an anonymous source and backed by recently-released CIA documents) says it was none other than then-White House counsel Alberto Gonzales (h/t Adam):

One source with knowledge of Zubaydah's interrogations agreed to describe the legal guidance process, on the condition of anonymity.

The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA's counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration's legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

A new document is consistent with the source's account.

The CIA sent the ACLU a spreadsheet late Tuesday as part of a lawsuit under the Freedom of Information Act. The log shows the number of top-secret cables that went from Zubaydah's black site prison to CIA headquarters each day. Through the spring and summer of 2002, the log shows, someone sent headquarters several cables a day.

"At the very least, it's clear that CIA headquarters was choreographing what was going on at the black site," says Jameel Jaffer, the ACLU lawyer who sued to get the document. "But there's still this question about the relationship between CIA headquarters and the White House and the Justice Department and the question of which senior officials were driving this process."

Knowing nothing about how government functions, you may find yourself wondering why memos from the OLC were necessary if Alberto Gonzales was already approving of specific techniques. That's because Gonzales, as White House counsel, actually possessed no authority to sign-off on the CIA's techniques:

Attorneys who have worked in the White House counsel's office describe it as "highly unusual" for the White House to tell interrogators what they can and cannot do. Bradford Berenson worked in the counsel's office under President Bush, though he had no role in authorizing harsh interrogations.

"These were highly unusual and extraordinary times after 9/11," says Berenson, "but ordinarily the White House counsel's office is not in the business of providing advice to anyone outside the White House itself."

All through the summer of 2002, top officials across the government were trying to sort out the ground rules for legal interrogations.

"I can't believe the CIA would have settled for a piece of paper from the counsel to the president," says one former government official familiar with those discussions.

"If that were true," says the former official, "then the whole legal and policy review process from April through August would have been a complete charade."

Which only further establishes two things that we have long-suspected and are now beginning to learn are true: 1) that the White House knew about and was deeply involved in the earliest detainee abuse and 2) that the legal memos crafted by the OLC were never about approving the use of specific techniques, but were about providing some sort of legal cover to interrogators for techniques the White House already wanted used.

For more reading on this revelation, I recommend Spencer Ackerman, who's wondering why the CIA over-ruled their own interrogators who objected to these techniques, and Big Tent Democrat, who points out that Gonzales has certainly not been forthcoming in testimony before Congress about his involvement in the formation of the legal framework for torture.

Defeat for Obama administration

And a deserved one, though not at the polls. The 9th Circuit Court of Appeals has repudiated the incredibly sweeping assertion of "state secrets" that the Obama administration has been peddling in a case concerning the rendition of several terrorist suspects. Glenn Greenwald explains:

Today, in a 26-page ruling the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security.

The ruling was by a three-judge panel, so the Obama administration is likely to request an en banc hearing, or appeal the decision to the Supreme Court.

UPDATE: Here's SCOTUSBlog, with an explanation of the split in the Courts of Appeal over the privilege, and how the Supreme Court may be forced to deal with it despite turning down a chance to rule on the privilege a year and a half ago.

Obama Administration to Release More Photos of Detainee Abuse

I'm genuinely surprised by this move:

The Obama administration agreed late Thursday to release dozens of photographs depicting alleged abuse by U.S. personnel during the Bush administration of prisoners in Iraq and Afghanistan.

At least 44 pictures will be released on May 28 -- making public for the first time images of what the military investigated as abuse that took place at facilities other than the Abu Ghraib prison in Iraq.

Defense officials would not say exactly what is contained in the photos, but said they are concerned that the release could incite a backlash in the Middle East.

The photos are apparently not as shocking as the photographs from the Abu Ghraib investigation that became a lasting symbol of U.S. mistakes in Iraq. But some show military service members intimidating or threatening detainees by pointing weapons at them. Military officers have been court-martialed for threatening detainees at gunpoint.

Now as near as I can tell from this article, the release of the photos is prompted by an ACLU lawsuit. But of course, the Obama administration could simply do what the Bush administration did and refuse to disclose the photos, or fight a court order for years, or simply lose or destroy the photos. So the question is, why is Obama agreeing to release these photos now? It's not as if the furor over the most recent torture revelations will have died down in a month. Is he doing it because he feels it's necessary to air our dirty laundry so we can move on after having a full public accounting of our practices in the war on terror? Does he want to fan the ardor those calling for the prosecution of Bush administration officials (albeit in a back-handed way)? Or does he sincerely believe that the right thing for the government to do is release even the most politically inconvenient information when it's required by law? I'm genuinely puzzled; eight years of Bush malfeasance and Democratic ineptitude has conditioned me to expect the worse I suppose.

The Torture Timeline

Bush administration officials have repeatedly claimed that high-value detainees like Abu Zubaydah were tortured only after the August 1st, 2002 memo from the OLC that gave legal sanction to numerous coercive interrogation techniques. But that timeline simply isn't plausible, as stories like this make clear:

In April 2002, four months before the Justice Department issued its first “torture” memo, an FBI special agent who participated in the interrogation of the first “high-value” detainee captured after 9/11 reported that his treatment by the CIA amounted to “borderline torture,” according to a long forgotten report issued by the Department of Justice last year on the FBI’s role in detainee interrogations.

In recounting how the FBI agent verbally objected to the interrogation methods used against the detainee, Abu Zubaydah, sometime in April or May of 2002 Justice Department Inspector General Glenn Fine wrote in his report that the CIA had told another FBI agent, identified by the pseudonym “Gibson," who was present for the interrogation that the techniques were approved "at the highest levels" of government.

[...]

Fine’s report would appear to seriously undercut assertions by Bush administration officials that “enhanced interrogation” techniques were applied to "high-value" detainees only after the Justice Department’s Office of Legal Counsel issued a memorandum in August 2002 authorizing the CIA to use 10 brutal methods in an attempt to extract information from prisoners about plans to attack the U.S.

There has been speculation for some time that Zubaydah's torture preceded the Justice Department's legal opinion. That question came up during a House Judiciary Committee hearing last year and former Attorneys General John Ashcroft and Michael Mukasey were both asked about it but said they did not know.

[...]

According to Fine’s report, “Thomas” did not see Zubaydah being waterboarded but witnessed other methods being used against him that he said were “borderline torture.”

Agent “Thomas’s” "communicated his concerns about the CIA [interrogation] methods" to the Pasquale D'Amuro, the FBI’s assistant director for counterterrorism, in a telephone conversation in May 2002, according to Fine’s report. D’Amuro told Fine that he brought the agents' complaints to FBI Director Robert Mueller and "stated that his exact words to Mueller were 'we don't do that' and that someday the FBI would be called to testify and he wanted to be able to say that the FBI did not participate in this type of activity."

[...]

According to Fine's report, D'Amuro decided to remove the agents from the interrogations after "Thomas" communicated his concerns in the May 2002 telephone conversation. But "Gibson" said he was not immediately ordered to leave and “remained at the CIA facility until some time in early June 2002, several weeks after 'Thomas' left, and that he continued to work with the CIA and participate in interviewing Zubaydah.”

When he returned to the FBI headquarters in June 2002 to meet with officials about Zubaydah “Gibson” said he had no "moral objection" to the techniques being used against Zubaydah because they were “comparable” to the “harsh interrogation” techniques he “himself had undergone...as part of the U.S. Army Survival, Evasion, Resistance, and Escape (SERE) training.”

Likening the methods used to interrogate Zubaydah’s before to those applied to U.S. military personnel at a SERE facility is the clearest evidence yet that Zubaydah’s was tortured using techniques that were not yet approved in the Aug. 1, 2002 Bybee memo.

In his op-ed today, FBI interrogator Ali Soufan reveals that he was one of the agents who participated in the interrogation of Abu Zubaydah prior to the CIA's taking over of the process. Soufan says he objected to the harsher techniques, a revelation which would seem to correlate with the actions of Agent "Thomas" in Fine's report as detailed above. But Soufan clearly says that "Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August." Soufan is unclear in his op-ed about when he objected to these techniques, but Fine's report makes it clear that Agent "Thomas" objected in early May 2002, implying that at least some level of "enhanced interrogation" techniques were being employed before the August 1st OLC memo was ever drafted.

But that's not the only evidence that detainees in U.S. custody were tortured prior even to the OLC memos authorizing enhanced interrogation techniques. A Tunisian detainee originally captured in in the wake of 9/11 has filed suit against the federal government, alleging he was tortured by agents of the CIA in late 2001:

According to the lawsuit, Alhami was arrested in Iran in November 2001 and taken to Afghanistan to three CIA "dark sites" where "his presence and his existence were unknown to everyone except his United States detainers" and his name was not included on any publicly available list of detainees.

Beginning in December 2001, Alhami was tortured repeatedly, the lawsuit claims.
The methods were varied: At different times Alhami was stripped naked, threatened with dogs, shackled in painful "stress" positions for hours, punched, kicked and exposed to extremes of heat and cold. The suit also alleges Alhami's interrogators sprayed pepper spray on his hemorrhoids, causing extreme pain.

The lawsuit doesn't claim Alhami was waterboarded, a technique that simulates drowning.

The torture continued after Alhami was transferred to the U.S. Naval base in Guantanamo Bay, Cuba, in January 2003, where he currently is held, according to the suit.

Now it's most interesting to that Alhami is filing suit now, in the wake of the release of the Senate Armed Services Committee report and the OLC memos last week. The article says the allegations were "pieced together from Alhami's recollections, declassified documents and information from human rights organizations." Would those declassified documents be the recently declassified OLC memos? I'd sure like to know.

Who Lied?

Marc Thiessen seems willing to take at face value assertions the CIA made to the OLC that traditional (non-torturous) interrogation techniques were of little use in the interrogation of Abu Zubaydah. But FBI Special Agent Ali Soufan directly contradicts that notion; he says flat-out that he was getting "important actionable intelligence" before he was whisked away, allegedly as a result of his unwillingness to tie Al Qaeda to Saddam Hussein. This has Spencer Ackerman wondering exactly who was telling CIA attorneys Scott Muller and John Rizzo that traditional interrogations weren't working with Zubaydah. Ackerman speculates that SERE psychologist James Mitchell had something to do with it. Why? Mitchell wanted to get paid:

...is it too cynical to suggest that Mitchell also had an interest in saying that Soufan and the FBI’s (and apparently, in part, CIA’s) non-brutal techniques failed? From page 24 of the Senate Armed Services Committee report:

Subsequent from his retirement from DoD [the Department of Defense], Dr. Jessen joined Dr. Mitchell and other former JPRA [Joint Personnel Recovery Agency, which oversees SERE] officials to form a company called Mitchell Jessen & Associates. Mitchell Jessen & Associates is co-owned by seven individuals, six of whom either worked for JPRA or one of the service SERE schools as employees and/or contractors. As of July 2007, the company had between 55 and 60 employees, several of whom were former JPRA employees.

Science may be science, but money is money.

Is that unbelievable? Not to me, and not for someone like Mitchell, who sounds like a real piece of work.

Senate Intelligence Torture Memos "Narrative" Released

McClatchy has this report out about a "narrative" released by the Senate Intelligence Committee that purports to provide an overview of the legal advice provided to the CIA from the OLC regarding torture. As McClatchy explains, the narrative makes clear that lawyers for the DOJ were operating under the guidance of senior Bush administration officials:

A newly declassified narrative of the Bush administration's advice to the CIA on harsh interrogations shows that the small group of Justice Department lawyers who wrote memos authorizing harsh interrogation techniques were operating not on their own but with direction from top administration officials, including then-Vice President Dick Cheney and National Security Adviser Condoleezza Rice.

At the same time, the narrative suggests that then-Defense Secretary Donald H. Rumsfeld and then-Secretary of State Colin Powell were largely left out of the decision-making process.

Specifically, the narrative states:

In the spring of 2003, the DCI [Director of Central Intelligence] asked for a reaffirmation of the policies and practices in the interrogation program. In July 2003, according to CIA records, the NSC [National Security Council] Principals met to discuss the interrogation techniques employed in the CIA program. According to CIA records, the DCI and the CIA’s General Counsel attended a meeting with the Vice President, the National Security Adviser, the Attorney General, the Acting Assistant Attorney General for the Office of Legal Counsel, a Deputy Assistant Attorney General, the Counsel to the President, and the Legal Adviser to the National Security Council to describe the CIA’s interrogation techniques, including waterboarding. According to CIA records, at the conclusion of that meeting, the Principals reaffirmed that the CIA program was lawful and reflected administration policy.

According to CIA records, pursuant to a request from the National Security Adviser, the Director of Central Intelligence subsequently briefed the Secretary of State and the Secretary of Defense on the CIA’s interrogation techniques on September 16, 2003.

In addition to these and other revelations, the narrative is useful to anyone who's having trouble keeping up with the bevy of OLC memos and other factoids that have come to light in the last several years. It's a short document, and I recommend reading it.

Quite frankly, it's astonishing, the amount of information that has been revealed in only a week about the crafting of the torture policies. Between the OLC memos, the Senate Armed Services Committee report and this narrative from the Senate Intelligence Committee, we now have a far more comprehensive portrait of the evolution of the legal advice regarding torture, as well as the role of various members of the Bush administration in the crafting of that policy. And I don't see how this news doesn't continue to add to the building momentum for the investigation/prosecution of those involved in torture.

Torture Fallout

Daphne Eviatar writes in today's Washington Independent that the release of the OLC memos last week, and the Senate Armed Services Committee report on detainee abuse, are building momentum for prosecution of Bush administration officials involved in crafting torture policy:

On Tuesday, President Obama did not rule out that Holder might prosecute the legal architects of the abusive interrogation policies, and said he was open to a bipartisan congressional commission investigating the Bush administration’s use of harsh interrogation techniques and how the policies were developed. And European and U.N. officials are increasingly saying that if the United States does not prosecute what appears to be a violation of the Convention Against Torture, to which the United States is a signatory, then European prosecutors may initiate prosecution themselves.

The release on Tuesday of the complete Senate Armed Services Committee report makes turning a blind eye to the past even more difficult. That’s because the report concludes that in many respects, Bush administration officials ignored prevailing domestic and international law and the legal advice of U.S. military lawyers in developing the abusive interrogation policies.

[...]

Some of the facts set out in the report strongly suggest that further investigation is warranted as to whether the legal conclusions were reached in good faith by the lawyers, and whether policymakers acted reasonably in relying on them. That’s critical to the defense put forward by Bush administration officials such as former Attorney General Michael Mukasey and Vice President Dick Cheney, who have consistently defended the Bush administration’s conduct by saying they all reasonably relied on the good-faith advice of government lawyers.

The Senate Armed services report repeatedly calls that “good faith” into question.

“The report talks about Haynes disregarding the advice from JAGS [Judge Advocates General], and disregarding other legal opinions,” said Michael Ratner, president of the Center for Constitutional Rights who has been calling for years for appointment of an independent prosecutor to investigate the Bush administration’s interrogation policies. “If you’re a prosecutor, that gives you something. That questions good faith.”

That's because crafting a legal opinion that ignores legal precedent, and ignoring legal advice that's inconvenient, do not constitute "good faith."

Also Ali Soufan, a former FBI special agent who interrogated Abu Zubaydah, takes to the pages of the NY Times to criticize the torture policies as not only ineffective but counter-productive:

It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.

We discovered, for example, that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber. This experience fit what I had found throughout my counterterrorism career: traditional interrogation techniques are successful in identifying operatives, uncovering plots and saving lives.

There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.

Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla. This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.

One of the worst consequences of the use of these harsh techniques was that it reintroduced the so-called Chinese wall between the C.I.A. and F.B.I., similar to the communications obstacles that prevented us from working together to stop the 9/11 attacks. Because the bureau would not employ these problematic techniques, our agents who knew the most about the terrorists could have no part in the investigation. An F.B.I. colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him.

Of course as we know, what the Bush administration really wanted out of Zubaydah was proof that Al Qaeda and Saddam Hussein were collaborating, which naturally they didn't get because no such collaboration existed. Zubaydah's unwillingness to provide politically convenient false testimony is what got him waterboarded 83 times.

Apologists

In the avalanche of stories and commentaries that are following from the release the Armed Services Committee report last night, torture apologists are seizing on two in particular to argue that torture was effective and thus justified. First, Marc Thiessin, former Bush speech-writer, repeats the claim that the torture of Khalid Sheikh Mohammed disrupted a plot to attack the Library Tower in Los Angeles:

Consider the Justice Department memo of May 30, 2005. It notes that "the CIA believes 'the intelligence acquired from these interrogations has been a key reason why al Qaeda has failed to launch a spectacular attack in the West since 11 September 2001.' . . . In particular, the CIA believes that it would have been unable to obtain critical information from numerous detainees, including [Khalid Sheik Mohammed] and Abu Zubaydah, without these enhanced techniques." The memo continues: "Before the CIA used enhanced techniques . . . KSM resisted giving any answers to questions about future attacks, simply noting, 'Soon you will find out.' " Once the techniques were applied, "interrogations have led to specific, actionable intelligence, as well as a general increase in the amount of intelligence regarding al Qaeda and its affiliates."

Specifically, interrogation with enhanced techniques "led to the discovery of a KSM plot, the 'Second Wave,' 'to use East Asian operatives to crash a hijacked airliner into' a building in Los Angeles." KSM later acknowledged before a military commission at Guantanamo Bay that the target was the Library Tower, the tallest building on the West Coast. The memo explains that "information obtained from KSM also led to the capture of Riduan bin Isomuddin, better known as Hambali, and the discovery of the Guraba Cell, a 17-member Jemmah Islamiyah cell tasked with executing the 'Second Wave.' " In other words, without enhanced interrogations, there could be a hole in the ground in Los Angeles to match the one in New York.

An astute reader will note that the OLC memos merely repeat claims being made by the CIA about intelligence that they allegedly obtained from Mohammed, so this can hardly be considered any kind of definitive "proof" as to torture's usefulness (never mind that the purpose of the memos was to justify torture, making them doubly dubious.) But as Timothy Noah at Slate points out (via Andrew Sullivan) this claim that torture foiled the Library Tower attack-a claim that has been made repeatedly by torture apologists-is just wrong:

What clinches the falsity of Thiessen's claim, however (and that of the memo he cites, and that of an unnamed Central Intelligence Agency spokesman who today seconded Thessen's argument), is chronology. In a White House press briefing, Bush's counterterrorism chief, Frances Fragos Townsend, told reporters that the cell leader was arrested in February 2002, and "at that point, the other members of the cell" (later arrested) "believed that the West Coast plot has been canceled, was not going forward" [italics mine]. A subsequent fact sheet released by the Bush White House states, "In 2002, we broke up [italics mine] a plot by KSM to hijack an airplane and fly it into the tallest building on the West Coast." These two statements make clear that however far the plot to attack the Library Tower ever got—an unnamed senior FBI official would later tell the Los Angeles Times that Bush's characterization of it as a "disrupted plot" was "ludicrous"—that plot was foiled in 2002. But Sheikh Mohammed wasn't captured until March 2003.

Torture apologists will also cite to this NY Times story about a memo that current Director of Intelligence Admiral Dennis Blair sent to his staff last week when the OLC memos were released, in which he states that the "enhanced interrogation" techniques produced "high value information":

“High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa’ida organization that was attacking this country,” Adm. Dennis C. Blair, the intelligence director, wrote in a memo to his staff last Thursday.

It would be interesting to know exactly what information was produced, and exactly how useful it was, especially as Blair himself goes on to say:

“The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means,” Admiral Blair said in a written statement issued last night. “The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."

Which is essentially the point that opponents of torture have been making all along. Naturally, torture apologists will look for the tiniest scrap of evidence that torture produced actionable intelligence of even the most insignificant nature and attempt to use that to justify a program that exceeded even the flimsy legal boundaries established by the OLC, while completely dismissing the harm that torture has done to our national security. But I think that's rather obviously a losing argument.

More Torture Revelations

You may recall that in December, the Senate Armed Services Committee released an executive summary containing the key conclusions of a report the committee authored on the treatment of terrorist suspects in American custody, specifically, the use of torture against those suspect detainees. This evening the Committee has released the full report, which provides more detail than ever about how the methods of torture used against detainees at Guantanamo Bay (and later against detainees in Iraq and Afghanistan) evolved and proliferated. I haven't yet read the full report myself (it totals 232 pages) but already the report is being processed by various media outlets. Time has a relatively short (but informative) summary here, which is as good a place to start as any. But for the best break down of the report I recommend Spencer Ackerman, who explains exactly how officials at the Pentagon "reverse-engineered" techniques first developed to train U.S. military personnel to resist torture, techniques which they then went on to apply detainees at Guantanamo Bay.

Throughout it all, it becomes clear that senior Bush administration officials were well aware of what was going on. Says Democrat Carl Levin of the report's conclusions:

“The record established by the Committee’s investigation shows that senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques,” Levin said. “Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses. As the Committee report concluded, authorizations of aggressive interrogation techniques by senior officials resulted in abuse and conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody.”

Coincidentally (I presume) the NY Times published an article today which reveals the apparent thoughtlessness with which senior officials of the Bush administration approved these various torture techniques, without-amazingly-ever being quite aware that many of these techniques were descended from methods that the Chinese used to extract false confessions from American prisoners during the Korean War:

Overwhelmed with reports of potential threats and anguished that the agency had failed to stop the Sept. 11 attacks, Mr. Tenet and his top aides did not probe deeply into the prescription Dr. Mitchell so confidently presented: using the SERE tactics on Qaeda prisoners.

A little research on the origin of those methods would have given reason for doubt. Government studies in the 1950s found that Chinese Communist interrogators had produced false confessions from captured American pilots not with some kind of sinister “brainwashing” but with crude tactics: shackling the Americans to force them to stand for hours, keeping them in cold cells, disrupting their sleep and limiting access to food and hygiene.

“The Communists do not look upon these assaults as ‘torture,’ ” one 1956 study concluded. “But all of them produce great discomfort, and lead to serious disturbances of many bodily processes; there is no reason to differentiate them from any other form of torture.”

Worse, the study found that under such abusive treatment, a prisoner became “malleable and suggestible, and in some instances he may confabulate.”

[...]

One former senior intelligence official who played an important role in approving the interrogation methods said he had no idea of the origins and history of the SERE program when the C.I.A. started it in 2002.

“The agency was counting on the Justice Department to fully explore all the factors contributing to a judgment about legality, including the surrounding history and context,” the official said.

But it was the C.I.A. that was proposing the methods, and John Yoo, the Justice Department official who was the principal author of a secret August 2002 memorandum that authorized the interrogation program, was mostly interested in making a case that the president’s wartime powers allowed for the harsh tactics.

In other words, the OLC gave the CIA exactly what they wanted, which was basically permission to employ whatever techniques they thought they needed to against the detainees. I think it's appropriate to excerpt this snippet from Brian Tamahana's post regarding the circular reasoning of the OLC memos:

Here is the circularity in the analysis: Time and again the OLC memos conclude that the use of these interrogation techniques do not amount to the intentional infliction of severe physical or mental suffering (the torture standard) based upon the CIA’s own finding that these techniques don’t cross that line. But that is precisely the legal question the CIA (purportedly) is posing to the OLC: Do the interrogation techniques violate the anti-torture statute?

Presumably, the OLC cannot answer the legal question by relying upon the CIA’s own determination that these techniques do not violate the torture statute. That is, however, exactly the analysis in the torture memos. This circularity is explicit in the following passage (March 10 memo), opining on the combination of sleep deprivation with other techniques:

This possibility [that sleep deprivation reduces pain tolerance] suggests that use of extended sleep deprivation in combination with other techniques might be more likely than the separate use of the techniques to place the detainee in a state of severe physical distress and, therefore, that the detainee might be more likely to experience severe physical suffering. However, you [CIA] have informed us that the interrogation techniques at issue would not be used during a course of extended sleep deprivation with such frequency and intensity as to induce in the detainee a persistent condition of extreme physical distress such as may constitute ‘severe physical suffering’ within the meaning of sections 2340-2340A.

To summarize the above passage: the OLC concluded—as a legal matter—that the CIA’s combination of techniques does not violate the torture statute based upon the CIA’s assurance that it combines the techniques in a way that does not violate the torture statute. It doesn’t get more circular than that.

Of course, this was all possible because the conclusion was already pre-ordained; the OLC's job was merely to find a way to "legalize" it all. The Bush administration "knew" that torture would work, so there was really no need to debate the issue; especially not with CIA Director George Tenet running around claiming that Al Qaeda was getting ready to deply biological, chemical or nuclear weapons. They just needed the methods, and they needed somebody to say that it was legal to employ them. And they got both, without too much trouble, and without any messy inquiry into whether the approved techniques were actually useful in getting real information out of detainees (as opposed to just convincing them to say whatever the interrogator wanted to hear)or whether there was actually any legal precedent that argued against the use of torture.

I think it's also interesting to note from both Spencer Ackerman and the NY Times' stories how eager some SERE interrogators and psychologists were to get in on the action, only to balk at the various methods being employed in the coming months and years. But the genie was already out of the bottle at that point, and the methods they had helped to devise were already being employed in places as far away as Abu Ghraib and Bagram and, presumably, the CIA's secret detention facilities the world over.

If this can be easily summarized in anyway, it would be to say that Pentagon staffers, members of the military, and agents and contractors for the CIA and the DOD, put much thought, time and consideration into the exact methods of torture they would employ against recalcitrant detainees. Senior members of the Bush administration on the other hand, did not. And thus were terrorists suspects being detained indefinitely in various facilities and black sites around the world tortured in the name of national security. 

Friday Links

For your edification:

1. Via Volokh, Congress takes on the issue of cyber security.

2. A federal judge rules that some detainees being held at Bagram in Afghanistan can challenge their detention in court.

3. Social Security is clogged with a backlog of disability cases. In my law school's legal clinic, I was very bluntly informed by the senior attorneys working there that the Social Security Administration always denies an initial application for disability, regardless of the merits. And that they will fight tooth and nail to deny benefits to all but those who are most clearly disabled (such as with blindness, paralysis, loss of limb, etc.) The SSA's role should be to to fairly dispense entitlement benefits, but they seem to regard themselves as the government's moneysavers.

4. Speaking of government malfeasance, immigrants die in custody and not only does nobody care, but nobody even bothers to report it. I understand the need to enforce immigration laws in our country, but we treat detained immigrants worse than we treat terrorist being held at Guantanamo Bay.

5. The Iowa Supreme Court unanimously strikes down the state's ban on gay marriage finding that it violates the Iowa State Constitution forbidding . According to Maggie Gallagher, teenagers will now begin fornicating left and right (more than they already do, I presume.)

6. Photographs from the day Martin Luther King Jr. died.

7. The U.S. Men's soccer team beat Trinidad and Tobago the other night, 3-0. The score probably should've been worse for T&T, who looked out of sync and discombobulated all night. All three goals came from the feet of Jozy Altidore, who's put in two phenomenal performances for the national team. But nobody should declare him the great American hope yet, as we've seen this sort of thing before (Eddie Johnson, anyone?)

8. The Mavericks cling to the hope that they can grab the 7th seed and avoid a first round match-up against L.A. They're getting a little help from Utah, but they need to win out to have a chance.

ICRC Report Details Torture

In December of 2006 officials with the Red Cross were permitted by the Bush administration to interview several high-value detainees, including Abu Zubaydah and Khalid Sheikh Mohammed, about their treatment in captivity, provided the report was kept secret and turned over only to government officials. Of course it didn't take long for elements of the report to leak to the public, including allegations of torture. For the first time though Mark Danner, writing for the New York Review of Books, publishes excerpts of interviews with some of those detainees, in which the detainees recount torture at the hands of CIA personnel at unknown "black sites." That these various detainees were tortured is not news; accounts of their treatment at the hands of American interrogators have leaked in one form or another over a period of several years now. Nonetheless it's informative to read the accounts of torture in the detainees' own words. Of course defenders of torture will claim that the detainees lied about their treatment, but there's a very simple way to confirm their stories; release the various logs that were kept regarding their treatment, as well as the communications that took place between senior administration officials in Washington and CIA personnel at the black sites (communications which Danner makes clear took place.) With more revelations like these, it seems more and more likely that a "truth commission" aimed at getting to the bottom of what was done in the "war on terror" will be launched, if fitfully. 

Tortured Reasoning

Brian Tamahana explains exactly how atrocious the legal reasoning is in the OLC memos authored by Yoo, Bybee and (to a lesser extent) Delahunty. Here's an example:

Some of the arguments veer into the bizarre. Consider this concluding passage from a Yoo-Delahunty memo arguing that the president can order warrantless searches (case citations deleted):

The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others. Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and of its citizens. If the government’s heightened interest in self defense justifies the use of deadly force, then it would certainly also justify warrantless searches.

Huh? The reasoning goes like this:

Individuals can use deadly force to defend against a deadly attack;

The government can use deadly force to defend the nation against an attack;

Therefore: the government can engage in warrantless searches.

Now, I don't think you have to be a lawyer to see the massive leap to a conclusion at the end of that paragraph, but trust me, Tamahana is not at all misconstruing the argument with his simplicification. This is an argument that essentially amounts to "Well, if the President can do one crazy-ass thing with one amendment of the Constitution, surely he can do another crazy-ass thing with that same amendment!"

And in case you think Tamahana has an ideological axe to grind, don't forget who authored the memo that repudiated all of these wild claims.

Obama and National Security and Secrecy

Via Ken Silverstein, ProPublica documents quite thoroughly how there just isn't as much light between the Bush and Obama administrations as one would either hope or imagine. So, new approach to Iraq and Afghanistan and Iran and all that, but as for the stuff us civil libertarians and liberal bloggers might be paying close attention to? Pretty much the same. From this point on you can pretty much count on me not including any of the usual caveats about how we're better off "overall" with Obama as President. Yeah yeah, and I want him to get this right too. Call me spoiled.

Bush OLC Memos Released

The Obama administration decided to release the DOJ OLC memos relating to the war on terror that the Bush administration had previously fought to keep secret. Unsurprisingly, the nine memos claim vast and sweeping powers on the part of the President to deal with any matter related to terrorism. Essentially, the memos claim, so long as the President was taking action to fight terrorism, he could literally not be constrained by the Cosntitution in any meaningful and substantial way. Neil Lewis of the NY Times focuses on one memo in particular, dealing with the deployment of the military within the United States:

The opinion authorizing the military to operate domestically was dated Oct. 23, 2001, and written by John C. Yoo, at the time a deputy assistant attorney general in the Office of Legal Counsel, and Robert J. Delahunty, a special counsel in the office. It was directed to Alberto R. Gonzales, then the White House counsel, who had asked whether Mr. Bush could use the military to combat terrorist activities inside the United States.

The use of the military envisioned in the Yoo-Delahunty reply appears to transcend by far the stationing of troops to keep watch at streets and airports, a familiar sight in the wake of the Sept. 11 attacks. The memorandum discussed the use of military forces to carry out “raids on terrorist cells” and even seize property.

“The law has recognized that force (including deadly force) may be legitimately used in self-defense,” Mr. Yoo and Mr. Delahunty wrote to Mr. Gonzales. Therefore any objections based on the Fourth Amendment’s ban on unreasonable searches are swept away, they said, since any possible privacy offense resulting from such a search is a lesser matter than any injury from deadly force.

The Oct. 23 memorandum also said that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It added that “the current campaign against terrorism may require even broader exercises of federal power domestically.”

Mr. Yoo and Mr. Delahunty said that in addition, the Posse Comitatus Act, which generally bars the military from domestic law enforcement operations, would pose no obstacle to the use of troops in a domestic fight against terrorism suspects. They reasoned that the troops would be acting in a national security function, not as law enforcers.

Those aren't the only clams advanced by the Bush administration in those early days:

In another of the opinions, Mr. Yoo argued in a memorandum dated Sept. 25, 2001, that judicial precedents approving deadly force in self-defense could be extended to allow for eavesdropping without warrants.

Still another memo, issued in March 2002, suggested that Congress lacked any power to limit a president’s authority to transfer detainees to other countries, a practice known as rendition that was widely used by Mr. Bush.

The Bush administration also claimed the authority to curtail the First Amendment, stating plainly in one memo that "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully." Reaction to these memos has been predictable. Scott Horton, referring first to the surveillance memo:

It’s pretty clear that it served several purposes. Clearly it was designed to authorize sweeping warrantless surveillance by military agencies such as the Defense Intelligence Agency and the National Security Agency. Using special new surveillance programs that required the collaboration of telecommunications and Internet service providers, these agencies were sweeping through the emails, IMs, faxes, and phone calls of tens of millions of Americans. Clearly such unlawful surveillance occurred. But the language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.

These memos gave the President the ability to authorize the torture of persons held at secret overseas sites. And they dealt in great detail with the plight of Jose Padilla, an American citizen seized at O’Hare Airport. Padilla was accused of being involved in a plot to make and detonate a “dirty bomb,” but at trial it turned out that the Bush Administration had no evidence to stand behind its sensational accusations. Evidently it was just fine to hold Padilla incommunicado, deny him access to counsel and torture him–in the view of the Bush OLC lawyers, that is.

Orin Kerr, on the surveillance memo:

If I'm reading this correctly, then, the original Yoo memos on the TSP had argued that FISA didn't apply because there was nothing in the statute that indicated clearly an intent to regulate national security surveillance. This would have been an extremely lame analysis, though. Congress had plainly stated that FISA was the exclusive means for national security monitoring in 18 U.S.C. 2511(f): It's hard to read the phrase "procedures in . . . the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance . . . may be conducted" as not clearly indicating an intent to regulate electronic surveillance in the national security area. Indeed, much of the point of FISA was to regulate that.

If I'm reading this correctly, it might explain why Senators Feinstein & Specter introduced legislation back in '06 , at the height of the legal controversy over the TSP, that would "re-state" that FISA was the exclusive means for national security surveillance. A lot of people giggled at this idea at the time: Why restate what Congress already said? However, if the Bush Administration at some point indicated to Specter and Feinstein what the reasoning was of the initial OLC memos, Feinstein and Specter would have known something we didn't. "Re-stating" the point in new legislation could have been designed to provide the "clear statement" that the Yoo memo argued was necessary.

I suppose it's harder to ignore Congressional intent when Congress essentially says "No, we really did mean what we said there" but it seems odd to me to introduce new legislation in response to a twisted interpretation by the executive of already existing law.

Steven Schwin, on the detainees memo:

There's a lot of shocking language in these memos; here's just one gem from the June 27, 2002, memo:

As we explain below, the President's authority to detain enemy combatants, including U.S. citizens, is based on his constitutional authority as Commander in Chief. We conclude that section 4001(a) does not, and constitutionally could not, interfere with that authority.

Emphasis mine. Justice Jackson's opinion in Youngstown isn't even mentioned. (Recall that John Yoo's 2002 "Torture Memo" was heavily criticized for omitting any reference to Jackson's famous framework.)

And finally, Jack Balkin with the summary:

...two disowned claims lie at the heart of the Cheney/Addington/Yoo theory of presidential power-- namely, that when the president acts as commander in chief Congress may not restrict in any way his military decisionmaking, including decisions about detention, interrogation, and surveillance. The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief. This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.

These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush Administration in the days following 9/11.

Most interestingly, we learn that the OLC repudiated these early claims in a memo written by Steven Bradbury in the waning days of the Bush administration. In fact, Bradbury insists that many of these memos were never relied upon, that they were in fact "hypothetical." Which to me sounds like no more than a last-ditch and pathetic effort to avoid accountability at either the hands of historians or the hands of Obama DOJ investigators for actions taken in reliance upon the egregious claims of executive authority put forth in these memos. 

Via ScotusBlog, the ACLU is reporting that the Obama administration is planning to take Ali Saleh Kahlah al-Marri out of custody at the naval brig in South Carolina where he is being held and try him in the criminal courts (h/t Adam.) The significance of this move lies in the fact that in doing so, the Obama administration would effectively moot the case that Al-Marri has pending before the Supreme Court, which is scheduled to hear arguments at the end of April. Were the Supreme Court to dismiss the matter as a result, this would leave unanswered one of the greatest legal question posed by the Bush administration during the "war on terror": whether the President has the authority to order the indefinite detention of terrorist suspects captured on U.S. soil. Naturally Al-Marri and the ACLU would prefer that this not happen, as this would effectively destroy any opportunity for the Supreme Court to limit the executive authority to detain individuals indefinitely. Although it is not unheard of for the Supreme Court to hear cases that are moot (Roe v. Wade is one example) they are loathe to do so, and I don't think there's a high likelihood that Al-Marri's case will long survive his transfer to the criminal justice system.

Just last week I discussed Jane Mayer's "The Hard Cases", where she wrties at length about the unique difficulties presented by detainees like Al-Marri. In it she explored the possibility of the creation of a special national security court, or the possibility of "preventive" detention. It would seem that if the Obama administration is declining to have Al-Marri's case heard before the Supreme Court, they are also demurring on an opportunity to defend their authority to order indefinite detention, as well as retreating from the possibility of a national security court that could order something like preventive detention. I for one am pleased that Al-Marri will get the criminal trial he should've had after he was arrested in 2001 (even with the difficulties posed by the fact that his original case was dismissed with prejudice.) But what the Obama administration intends to signal about the breadth of executive authority with this move is unclear, at least to me.