Jameel, welcome back to FDL. So great to have you here to talk restoration of the rule of law today.

As a reminder, folks, please stay on topic in a guest thread — take any off-topic chatter to the prior thread. Thanks!

Hi Jameel, thanks so much for coming back.
And thanks for all you do for truth and justice.

Thanks, and looking forward to your questions.

Jameel — we’ve all been trying to parse through the most recently released OLC memo and the SASC report. Thanks up front for all the work you and the ACLU have done with FOIA requests and legal work to force those memos out into the open.

I can’t shake the feeling that there is a lot more to come. Any clues on what other shoes may be dropping on all of this in the near future? Any idea, for example, when the DOJ’s OPR report may be released?

What I find absolutely infuriating is the way this is being framed in the media. Watching Morning Joker this morning, it’s still about whether the Democrats are scared to do right because they did wrong, and if you want accountability and the rule of law you’re a crazy leftist who doesn’t understand politics.

If you could decide how these issues should be pursued, (truth commissions, congressional investigation, AG, Spanish prosecutors, etc, which method or methods would you choose?

I appreciate the time you are taking to answer questions here. I am going to leave those “?”’s to the more knowledgeable to ask, but I am listening with both ears. Thanks.

I saw an interview with Sen. John Ensign yesterday on Hardball where he was doubling back on himself to try to portray the SASC report as only a “Democrat” memo. When he was called on the fact that there are Republicans on the committee who signed onto it as well, he refused to acknowledge that fact and kept repeating the same inaccurate talking point.

It’s beyond infuriating to watch people who take an oath to uphold and protect the Constitution tap dance around any commitment to the rule of law.

Mr. Jaffer,

Thanks so much for being here today. Congratulations on the tremendous accomplishment of getting the OLC memos released in mostly unredacted form. That would not have happened without ACLU’s tireless efforts on behalf of all of us.

The release of the memos certainly seems to finally have moved torture into discussion in the mainstream media, and we know that such discussion is a necessary precursor to achieving public consensus for criminal investigations.

I think that the evidence that could close the case for criminal investigations would be on the issue of children. There are credible reports that the children of both Kahlid Sheikh Mohammed and Aafia Siddiqui have been in US custody and yet only one of these children has been reunited with family. The whereabouts and condition of the others are unknown.

It is clear from the memos that we have seen that the government took steps to provide legal cover (even if entirely flimsy) for all the other questionable acts it undertook. It stands to reason that somewhere there is a document that authorized the abduction of these children. Has the ACLU asked for such a document? If not, would you consider making such a request?

thank you jameel for coming to speak with us today.

are you seeing the obama administration responding to fioa requests in a timely manner or is the bushco style stonewalling continuing?

You’re right that there’s still a lot of information that’s still secret. For example, we’ve got version of the CIA’s Inspector General report, but our version is heavily redacted. (We got our version through the FOIA last year.) Now that the Obama administration has released some of the OLC memos, we’re hoping that it will release a less redacted version of the IG report. We’d also like to see the Combatant Status Review Tribunal transcripts for the former CIA prisoners who are now held at Guantanamo. In the available versions of those transcripts, the prisoners’ allegations of abuse in CIA custody have been redacted. And then there’s a whole slew of OLC memos that are still secret. We’re hoping that the four memos released to us last week were the beginning, not the end.

Jameel, the CW is that the only dirty hippies on the left care about the torture debate. We are “pushing” Obama into the past when he only wants to look forward. Hard to believe citizens of the US actually feel this way, but how can they be swayed to care about the acts committed in their name?

I hope we don’t have to choose between the various mechanisms of accountability. We’ve been asking for three things: First, we want the new administration to disclose the torture files that are still secret. Second, we want the Justice Department to appoint an independent prosecutor to examine issues of criminal responsibility. And third, we want Congress to appoint a select committee to examine the roots of the torture program and to recommend legislative changes to prevent gross human rights abuses in the future. We shouldn’t have to choose between these things.

I saw that too. I just don’t understand how he can think of himself as a public servant.

Speaking of Gitmo, you all have done tremendous work there in terms of pushing rule of law considerations as well as basic trial essentials like being given the evidence against which a defendant is supposed to be defending himself actually in hand for some detainees. The Kafka-esque nature of so much of those proceedings has been horrifying for me, as someone who has done criminal defense and prosecution work in my legal career — and I don’t know how counsel on either side are supposed to function under those circumstances in anything other than an Alice in Wonderland “sentence first, verdict after” sort of way.

Has there been any progress with the current review ongoing from the Obama administration?

It’s beyond infuriating to watch people who take an oath to uphold and protect the Constitution tap dance around any commitment to the rule of law.

It’s the same mentality that allows them to mock someone for being a “card carrying member of the ACLU” like that was a bad thing.

What do you think of the “911 Commission” format as opposed to a congressional select committee? The rationale seems to be that a congressional committee is political. I can’t remember which genius was pushing this one on the tv this morning. Maybe Chuck Todd.

Thank you, Jameel, for answering these questions. My question has to do with whether and how DOJ lawyers, specifically those at the OLC, can be prosecuted under the law for the apparently erroneous advice they seem to have concocted. Under what provisions could they be prosecuted?

I think it’s too early to say whether the Obama administration will live up to its promise of openness and transparency. Needless to say, we were very gratified that the new administration agreed last week to release the August 2002 Bybee memo and the three May 2005 Bradbury memos. For several years, we’ve been pointing out — including in our legal briefs — that the Bush administraton was withholding these documents improperly. And it’s also a good thing, and an important one, that Attorney General Holder reversed what became known as the “Ashcroft presumption” against disclosure. (Attorney General Ashcroft had told federal agencies to refuse FOIA requests whenever there was any possible legal basis for doing so.) But there are many documents that the Obama administration hasn’t yet released — not just documents relating to torture, but documents relating to other national security issues as well.

Thank you for all your work on this, Jameel, and thank you for stopping in today.

Do you get the sense that the White House is walking a careful line, using a slow roll-out in an attempt to beat back entrenched opposition to investigation of Bush-era crimes, or are they just desperately trying to play catch-up now that so many different documents have been released? And what, to your mind, is the best strategy to get us to a place where those responsible for designing, sanctioning, ordering, and even, yes, executing torture can be brought to justice?

(And thank you to Christy to hosting, and to Lindsay for letting us use her photo of Jameel.)

Jameel — have you all made any public statement regarding Dawn Johnsen’s nomination to head up OLC? I’ve made her nomination a personal priority the last few weeks because OLC has clearly been so battered, and solid leadership there is so necessary, in my opinion.

Wondered if you have any thoughts about it?

The short answer is yes, in some circumstances lawyers can be prosecuted for facilitating their clients’ crimes. And if lawyers in Washington choreographed torture sessions in the CIA’s secret prisons, the fact that the choreographers were lawyers, or that they were government lawyers, isn’t going to be a defense. Any criminal investigation will have to look into complicated questions of chronology and intent, but lawyers certainly aren’t protected from prosecution simply because they were providing legal advice.

And here’s a partial answer to the second part of your question. The Torture Statute, 18 USC 2340A, criminalizes the intentional infliction of severe physical or mental pain or suffering. The War Crimes Act, 8 USC 2441, criminalizes (among other things) grave breaches of the Geneva Conventions.

Sir, thanks for your service to American civil liberties. I am proud to be a supporter. Can you tell us your opinion of Elizabeth de la Vega’s view that we are much too early in the process to appoint a Special Prosecutor, since the American people deserve to hear and see much more about what was done in our name before grand jury secrecy shuts out the sunlight?

Thanks for chatting today!

This is a really good question. My sense is that the new administration would love to turn the page on the torture issues but that it’s increasingly evident to them — as it is to the rest of the world — that turning the page will have to involve some kind of accounting for what’s gone on over the last eight years. I don’t think that “looking forward” vs. “looking back” (Obama’s dichotomy) is a good way of thinking about this. I think that Senator Leahy was right when he said that we can’t turn the page until we’ve read what’s on the page.

Jameel, one thing I get asked about frequently is the sort of discretionary latitude the DOJ would have in terms of charging or not if laws are found to be broken. From my time as a state prosecutor, I know that you have a substantial degree of latitude in determining what if any charges are to be filed in the interests of justice — but in a governmental context — where public trust is at issue, that latitude was much more narrow because you had public interest and equal application of the law questions to satisfy as well.

Has that also been your experience in terms of evaluation on something like this? What do you think about questions of politicization even after the change of administration? Do you think an outside prosecutor would be necessary at this point to undercut political questions?

AND THE KILLIN’ GOEZ ON AND ON AND…

Citizen Jameel Jaffer and the Firepup Freedom Fighters:

Thank you so much for being here…what is the statute of limitations in the Torture Statute and the War Crimes Act?

It seems to me that this is playing out so far very well politically in order to insure that any investigation(s) and prosecution(s) doesn’t get lost in the weeds and strung out so to as to loose the entire case against the higher-ups (see the Scooter Libby debacle).

KEEP THE FAITH AND PASS THE AMMUNITION, THERE IS NO COMPROMISING WITH TORTURE OR FASCISTS!!

I know you all have answered this question numerous times, Jameel, but how well do you think the health care statute defense on infliction of pain will hold up if litigated? From my experience with federal judges here, anyone trying to make that argument as analogous would probably get laughed out of the courtroom.

I think you’re right, Christy, that DOJ will have some discretionary latitude in deciding who should face charges and who shouldn’t. But I’m not sure that’s a bad thing. What I object to is not the prosecutorial discretion, but the exercise of that discretion before any investigation has got off the ground. That’s what bothered me most about the advance immunity for CIA interrogators. Let’s first find out what happened, and who violated the law, and then DOJ can decide who should be charged. But to take criminal charges off the table in advance of any investigation seems like a mistake to me.

Agreed — it is impossible to make any discretionary decisions without having all of the evidence — and I mean ALL of it — in front of you. And I don’t think any of us do at this point because so much of this was so far buried.

Look, for example, at the Zelikow allegations of destruction of copies of his objection memo. If that doesn’t raise eyebrows on a destruction of evidence mentality, then people aren’t paying attention.

One more thing on this topic: While we’d probably welcome any criminal investigation into the torture program, I think that it would better if the investigation were run by an independent prosecutor. This is a politically charged issue, and I think that it’s crucial that the investigation not only be fair but be *perceived* as fair.

Mr. Jaffer,
Have you discerned any particular profile of people who either work for the ACLU or who are members? Old vs. Young. Party preference. And, is there a higher membership among citizens who have, as a group been especially overlooked in terms of civil liberties?

Citizen Jameel Jaffer:

Your concern about advanced immunity in the case of the CIA is certainly understandable in a perfect pre-fascist world…however, given the reality of the institutional politics here, it would be literally suicidal for Obama to take the approach that everyone is fair game when dealing with the opperational folks in the CIA and the position that the Bush regime forced them into.

He doesn’t think of himself as a public servant. The concept is foreign to the Republican mind.

great question – i had not thought about that – is there a statute of limitations involved here? makes me wonder if the bushco stonewalling was to cover up the crimes or to stall and delay until the clock ran out. or both.

We are fortunate to have the good people at the ACLU working on our behalf and I will continue to support your organization’s efforts with my voice and with my pocketbook.

Thank you for all you do!

I actually know of two fairly right-wing-leaning lawyer friends who joined the ACLU the last few years because they were so appalled by the dismissive attitude toward the rule of law and civil liberties. The same for one libertarian-leaning one.

People who might have, previously, been the sorts that dakine noted would be dismissive of card-carrying ACLU members.

Jameel

I think this is a good point. Mary, another commenter has been bringing this situation up for a long time

There are credible reports that the children of both Kahlid Sheikh Mohammed and Aafia Siddiqui have been in US custody and yet only one of these children has been reunited with family. The whereabouts and condition of the others are unknown.

It is clear from the memos that we have seen that the government took steps to provide legal cover (even if entirely flimsy) for all the other questionable acts it undertook. It stands to reason that somewhere there is a document that authorized the abduction of these children. Has the ACLU asked for such a document? If not, would you consider making such a request?

Not a lawyer (not smart enough) or a politician (not slimy enough) but I think this is a good tact, because who can argue that holding and possibly also torturing innocent kids isn’t inherently deplorable?

FWIW, Jameel was also heavily involved in their work on FISA. He and the folks on the National Security project have been swamped the last few years — and deserve an enormous amount of thanks for their work.

I think this will have to be my last post, unfortunately, but I did want to address the question about the timing of the criminal investigation. AG Holder doesn’t have to appoint an independent prosecutor today, but he can’t take *too* much time. The Anti-Torture Act has an eight-year statute of limitations, which means that interrogations that took place in 2002 may soon be beyond the statute’s reach. And as you all know, some of the most brutal interrogations took place in August 2002, just after the OLC issued the two major Bybee memos.

Thanks, Christy, for inviting me to participate in this chat and thanks to the rest of you for your questions. If you haven’t already, please sign our petition to Attorney General Holder to appoint an independent prosecutor to investigate those who authorized torture at http://www.aclu.org/investigatetorture. The ACLU — together with Move On, CCR, and a handful of other organizations — delivered 250,000 signatures to AG Holder today.

thank you for coming to speak with us again sir. please visit us again soon.

Jameel — thanks so much for coming to chat today in what, I know, has been an incredibly busy week for you. Much appreciated.

Do come back any time. And thank you for all that ACLU is doing. Truly, not enough words to thank you all enough.

Mr Jaffer, as a citizen among many, I want to thank you for your work on our behalf. More dollars from this pocket to ACLU. Things are obviously moving cery fast, but unless the Congressional democrats are deeply involved. I agree with Norske that the Pres has to tread carefully. There are a lot of dead bodiees out there.

Thanks.

Thanks for your helpful information. I agree that an independent prosecutor will be correct approach.

Christy,

thank you for this. a pleasure just to listen to his responses here. Mr Jaffer personifies a concept all but ruined in the last 8+ years, and that is Patriot.

PS…Thanks also for arranging Mr. Jameel’s appearance here today.
(You’re so Hot!)

My pleasure. It’s been a rough few weeks of memo after memo on torture and tortured legal reasoning. ACLU has been on the forefront of challenging this all along the way, and they deserve a lot of thanks from all of us for being there.

Thanks so much to everyone who participated today!

and a snarky p.s.

if the vaunted Obama brain trust had been on their game and wanted to avoid these minefields ahead, they would have offered Mr Jaffer and all his associates jobs in the admininstration. prestigious, high paying jobs nudge, nudge, wink, wink

Thank you for your time, patience and insight Jameel.

Christy, your tireless efforts in pursuit of justice are what first caught my eye and told me I was in the right place. Thank you and all at FDL for standing up when others find it easier to just let someone else do it.

bluejeansntshirt

Amen, and thank you.

jameel jaffer is an ignorant punk. WE AMERICANS do NOT care about the treatment of terrorist prisoners. there asses can be beaten EVERY night if it saves the life of 1 single american child. this lowest of dogs needs to be rooted from this country. you people are under-educated fools. the threat to this country does not come from great americans like mitt romney, but from the kooks @ the aclu and aholes like jameel jerkoff and scumbags like amrit sing. what are they even doing here?