Alyssa Peterson: Every Generation Has a Sgt. York


World War I brought us a hero named Sgt. York. A devoted pacifist, he was drafted into the army, and, after being denied conscientious objector status, struggled between his duty as a soldier and his objection to violence. He managed to capture 132 Germans and a machine gun nest in the Argonne Forest. The army named a tank after him.

For me, the importance of Sgt. York has always been how he struggled to reconcile his conscience with his duty as a soldier. This is the struggle that every soldier faced with an unlawful order faces, too.

The Uniform Code of Military Justice provides that a soldier should not obey an "unlawful" order. However, that is not always so simple. You, the soldier are not a lawyer, you have no training in the Constitution or the Geneva Conventions other than what you learned in the 4th grade and at boot camp. And you get told that the Dept. of Justice has opined — the smartest lawyers in DC have said — that the order is legal. You have just lost the legal underpinning for your refusal to obey that order. From a lecture series at Mercer Law School:

The decision to obey one’s oath and not follow illegal orders is no doubt a difficult one, and one that will probably result in punishment from those who issue the illegal orders. One should not take this issue lightly, just as one should not take the decision to follow an illegal order lightly. There will no doubt be consequences for those who follow their conscience.

You have seen what "bad" things happen to those who are prisoners of the US military. Hey, your whole problem is that you have been asked to DO the bad things–that’s the unlawful order. You wonder what bad things may happen to you if you get thrown in the brig for refusing to obey an order that the DOJ OLC says is legal. So, what do you do?

Enter Alyssa Peterson. Peterson was ordered to engage in "interrogation techniques" that she found unconscionable. She refused. She was reprimanded for showing "empathy" to the victims of those interrogation techniques, we don’t know if she was threatened with court martial or not because her diary and suicide note have been censored. (more…)

Did OLC Memos Prevent CIA Field from Objecting to Torture?


A couple weeks back, I engaged in some rank speculation: maybe the use of torture did not come about as a result of a request from CIA officers in the field; maybe it was crammed down on them from above. I wondered if the OLC memos were manufactured to remove the ability of those CIA field people to refuse to torture based on the notion that they did not have to obey an illegal order.

And I wondered if it was for that reason that President Obama was opposed to prosecuting CIA field people.

Well, a recent New York Times Op-Ed from an FBI interrogator suggests that maybe I was on to something:

The debate after the release of these memos has centered on whether C.I.A. officials should be prosecuted for their role in harsh interrogation techniques. That would be a mistake. Almost all the agency officials I worked with on these issues were good people who felt as I did about the use of enhanced techniques: it is un-American, ineffective and harmful to our national security.

Fortunately for me, after I objected to the enhanced techniques, the message came through from Pat D’Amuro, an F.B.I. assistant director, that “we don’t do that,” and I was pulled out of the interrogations by the F.B.I. director, Robert Mueller (this was documented in the report released last year by the Justice Department’s inspector general).

My C.I.A. colleagues who balked at the techniques, on the other hand, were instructed to continue. (It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not C.I.A. officers, who requested the use of these techniques.)

[emphasis added]

All of which makes what was done from above that much worse. Those memos removed the legal ability of CIA field people to object to torture. Sickening. (more…)

Oversight: Unlike Katrina, TARP has an IPSIG

When 9-11 happened, New York City let out a bunch of no-bid emergency contracts to work on "the pile" at Ground Zero. The Commissioner of the NYC Department of Investigations, the late and great Ed Kurianksy, went to then Mayor Giuliani and insisted that since there was great chaos and confusion at Ground zero and money was just being thrown at the problem, there would be a huge opportunity for waste, fraud, and abuse. He demanded that each of the four prime contractors at Ground Zero take on an Independent Private Sector Inspector General (IPSIG), and the Mayor agreed.

Although it later turned out that there was some fraud at the level of second-, third-, and fourth-tier subcontractors (who did not have IPSISGs), the work of the prime contractors was closely monitored and abuses nipped in the bud and corrected. Many in the law enforcement and IG community thought that this would become a model for disaster relief.

So, when Katrina hit, some people from prominent IPSIG firms went to see Mike Chertoff over at Homeland Secuirty and said basically the same thing to him that Kuriansky has said to Giuliani–that since money will just be thrown at this problem, there is great potential for waste, fraud, and abuse. Chertoff told them that decisions about such things were going to be made by a lawyer in the Department, and sent them to go see that lawyer. He was Dick Cheney’s son-in-law. It should be no surprise to you that no IPSIGs were assigned to Katrina relief, and, as we all later learned, waste, fraud, and abuse was rampant, and ran to the billions of dollars.

When the financial crisis struck in the waning days of the Bush Administration (remember our economy suffered its heart attack in September and October of 2008, before Obama had even won the presidency), Hank Paulson proposed one as hoc, "throw money at the problem" proposal after another. Congress got ansty, thought that there might be a repeat of the Katrina misspent billions, and required the appointment of a Special Inspector General for TARP funds.

Thank goodness they did that. SIG TARP Neil Barofsky released a report this week which warns:

"The significant Government-financed leverage presents a great incentive for collusion between the buyer and seller of the asset, or the buyer and other buyers, whereby, once again, the taxpayer takes a significant loss while others profit," the office said in its quarterly report to Congress.

The Treasury should impose conflict-of-interest rules on firms participating in the program and disclose information about its beneficiaries, the report said.

I realize that identifying the possibility of collusion and calling for rulemaking is only a first step, but at least it is a first step. (more…)

The Spitzer File Chronicles, Part 3: A Roadmap to Revelation


As readers of this series now know, US District Court Judge Jed Rakoff is knowledgeable in the laws governing the release of "judicial records" and in the backstory of what happens on Wall Street. Judge Rakoff also issued a string of decisions unsealing the wiretap applications and interim reports used to justify time extensions of those wiretaps in the Eliot Spitzer prostitution case, aka the Emperor’s Club case.

The New York Times is hot on the trail of why the feds, who normally have more important things to do, were investigation a prostitution ring where there were no aggravating factors that we know of (like drug distribution. violence, human trafficking, etc.).

Contrary to what you might think based upon a sweeping statement made by the Times, Judge Rakoff’s decision is NOT giving them a walk through the AUSA’s entire investigative file, or even all of the Grand Jury material. All Judge Rakoff has the power to give to the NYT right now are "judicial records".

Under a case called Amodeo, a judicial record is whatever the judge read, saw, or heard, and used to make a decision in the case. There is a presumption that judicial records should be public, so that the public can know if the judge is doing a good job (competence), and whether he is gaming his decision (corruption).

But, right now, because the correct motion is not before him, Judge Rakoff does not have the power to give the NYT access to the rest of the Grand Jury material.

So, I found part of the February decision very interesting because it seemed to be laying out a road map for the Times to get the rest of the GJ material.

In the instant case, there is an obvious interest in obtaining information about the origins of the investigation that led, ultimately, to the resignation of the Governor of New York. Indeed a Congressional Committee has even called for the examination of the reasons underlying the initial decision to undertake the investigation. . . .

[emphasis added]

Why is this important? (more…)

The Torture Shrink: What Does James Mitchell Know, and What Will He Tell Us Under Oath?


Reporters such as Scott Shane and Mark Mazzetti have a nice long article up today at some newspaper. [sorry, I couldn’t resist. *g*]

In it, they detail the origins of the decision to use the "enhanced interrogation techniques" on prisoners in the "war on terror." They specifically mention that the idea originated with a psychologist with the SERE program:

By late 2001, the agency had contracted with James E. Mitchell, a psychologist with the SERE program who had monitored many mock interrogations but had never conducted any real ones, according to colleagues. He was known for his belief that a psychological concept called “learned helplessness” was crucial to successful interrogation.

Martin Seligman, a prominent professor of psychology at the University of Pennsylvania who had developed the concept, said in an interview that he was puzzled by Dr. Mitchell’s notion that learned helplessness was relevant to interrogation.

“I think helplessness would make someone more dependent, less defiant and more compliant,” Dr. Seligman said, “but I do not think it would lead reliably to more truth-telling.”

Still, forceful and brainy, Dr. Mitchell, who declined to comment for this article, became a persuasive player in high-level agency discussions about the best way to interrogate Qaeda prisoners.

Eventually, along with another former SERE psychologist, Bruce Jessen, Dr. Mitchell helped persuade C.I.A. officials that Qaeda members were fundamentally different from the myriad personalities the agency routinely dealt with.

“Jim believed that people of this ilk would confess for only one reason: sheer terror,” said one C.I.A. official who had discussed the matter with Dr. Mitchell.

Now, if somebody were to give me subpoena power, this Dr. Mitchell guy is someone I would definitely want to talk to under oath. For a long time. With no immunity offer on the table. Why? Because the White House just threw him under the bus and fingered him as the criminal mastermind behind all this evil.

And chances are very high he knows where the truth actually lies. . . and probably has a nice set of notes. Shrinks are usually pretty good about keeping notes. (more…)

The Spitzer File Chronicles, Part 2: Trying to Keep Secret What is No Longer Secret


As discussed in Part 1 of the Chronicles, US District Judge Jed Rakoff is a man who knows a lot about the First Amendment, and a lot about the dirty laundry on Wall Street. So, it was fortuitous (or ironic, depending on your point of view) that the Emperor’s Club prostitution ring case landed in his lap.

Eliot Spitzer had earned the hatred of powerful men on Wall Street. When he suddenly got "stung" in a sex scandal (though never charged with a crime), some–including me–wondered if it was a political "hit job."

So, along comes the New York Times and tries to get some of the government’s evidence pried loose. In February of 2009, Judge Rakoff issued a decision finding that the applications for wiretaps and the interim reports used to justify renewing the existing warrants are "judicial records" which can and should be released to the public upon request.

You can read the decision here (PDF), and the transcript of the oral argument of the motion here (PDF). Read the transcript in particular, the AUSA argues at great length about how wiretap applications are sealed to protect the secrecy of the government’s case pre-indictment, which is true. Title 3 (the wiretap law) also requires unsealing of the wiretap application and interim reports, and turning them over to defense counsel in discovery, which did not happen in this case because the defendants pled guilty. The investigation is over and there is no secret left to protect.

Yet, the AUSA makes the "protect the secret investigation" argument–for an investigation that is no longer secret– the center of his entire defense of the motion. The transcript is pretty funny.

But I digress. (more…)

The Spitzer File Chronicles, Part 1: What Judge Rakoff Unsealed, Then and Now


Way back in the mists of time, er 2001, Judge Jed S. Rakoff of the the federal district court SDNY issued a decision unsealing some court documents so that a news outlet,, could have access to them for news gathering and disseminating purposes.

Back in 1998, 10 stock brokers and brokerage officials had been arrested for crimes committed on the floor of the New York Stock Exchange ("NYSE"). The SEC started a civil suit against one of these criminal defendants in what is known in the law biz as a "parallel proceeding".

The defendant turned around and sued, on a 3rd party complaint, the NYSE in which he contended that the NYSE and four of its officers, Richard Grasso, Edward Kwalwasser, Robert McSweeney, and Brian McNamara where aware of and even encouraged the crimes he committed on the floor of the Exchange. Depositions were taken of these men, and some were placed under seal by Judge Rakoff at the request of the NYSE.

Later, sought to intervene in the case to make a motion to have those depositions unsealed (there’s a nice timeline at this link, btw). The Judge granted the motion, and he was sustained on appeal.

Why am I telling you all this? Because in order to seal, leave sealed, and unseal the various documents, Judge Rakoff had to read them. And among those documents were transcripts of depositions taken from Grasso, Johnson, and Kwalwasser. In unsealing them, Judge Rakoff noted that disclosure would probably result in "reputational harm."

So, knowing all kinds of inside baseball about allegations of wrongdoing against Grasso, Judge Rakoff probably read his morning newspaper with interest a few years later when Eliot Spitzer took off after Grasso and Ken Langone over Grasso’s inflated pay from NYSE. (more…)

Why Obama Took Prosescution of CIA Officers off the Table — A Theory

Indulge me, if you will, in some rank speculation about why Obama has taken prosecution of line case agents at CIA off the table.

Imagine that some crazy at the White House (Cheney, Rummy, Addington? I have no clue) wants detainees to be subject to, ahem, interrogation techniques that this crazy believes will work because he has SEEN THEM WORK on his TeeVee! You know, like on "24" and all these cool action movies you can get "on demand" from your cable company?

Sane professionals at CIA hear this "order" and say "no way, that’s illegal and we cannot obey an illegal order." Much to and fro push and pushback, so crazy WH decides to "call the bluff" of sane CIA professionals and says "OLC is the organ that gets to decide what is and is not legal within the the executive branch, not CIA case agents. YOU are out of your lane! (the famous Addington battle cry)."

So WH crazies double dog dare CIA sane people to put a query into OLC describing in great detail what CIA sane people think is so gosh darn illegal. So, CIA General Counsel (who may be merely a messenger or may have colluded with the crazies –I can’t tell) writes up these queries complete with bugs and diapers and every minute detail laid out and sends them off to OLC.

And instead of doing genuine legal research and legal analysis–which would have come to the obvious conclusion that to any literate 3rd grader could see these things were torture, and both morally and legally reprehensible. . . and criminal–the OLC stooges lie–not mislead, not prevaricate, straight out LIE–and write up documents falsely claiming that this is legal. (more…)

“Purpose” of Detainee Torture was Not to Get Information, It was to Inflict Pain

As Spencer pointed out,

the first August 2002 OLC specified that it was acceptable to apply physical pain to a detainee so long as it was less than the sort of pain emerging from "organ failure, impairment of bodily functions, or even death."

and that as long as your "purpose" was to get actionable intelligence, not to cause pain, you were in the clear.

However, the 5/10/05 memo tells us that during an initial phase called "transition to interrogation"

the interrogators take an"open non-threatening approach" but the detainee "would have to provide information on actual threats and location information on high value targets at large –not lower level information–for interrogators to continue with [this] neutral approach." If the detainee does not meet this very high standard

well then they get the crap beat out of them and other icky things like the bugs Spencer posted about.

Here’s the rub, when I was doing the whole prosecution gig, they sent me off to training in interrogation. We learned something called the Reid method, which has been SOP since the 1940’s–because it works so damn well.

The essence of the Reid method, and every other EFFECTIVE interrogation method I have ever heard of, is that you will almost never get the subject to "go for his own lungs" upfront. Nope, you have to coax him bit by bit down the slippery slope until, eventually, he tells you all you want to know.

Predicating not subjecting someone to "enhanced interrogation techniques" on them doing something that goes completely against human nature and decades of successful interrogations, means that the PURPOSE could not have been to gather actionable intel.

The PURPOSE had to be to inflict pain, for some other reason. What, to instill fear? To break down will to live?

I don’t know–and get too upset trying to guess. All I know is 5/10/05 eviscerates the "no liability if your PURPOSE was not the infliction of pain" defense.

Caroline Kennedy Can be My Ambassador Any Day

caroline-kennedy.thumbnail.jpgGawker has a really bitchy piece of tripe up castigating Caroline Kennedy for expressing some interest in becoming Ambassador to the Vatican. I’m including the link in the interest of transparency, not to encourage giving them clicks, only because it is so hateful.

Caroline Kennedy Demands More Embarrassing Attention
By Pareene, 3:10 PM on Fri Apr 10 2009, 1,576 views

What the hell is wrong with Caroline Kennedy? Didn’t she learn that she doesn’t really care for public scrutiny, one bit? Why did she want to be the ambassador to the Vatican?

There’s more, and it’s ugly.

Who is this mean-spirited "Pareene" to write such crap? Has Ms. Kennedy lost the right to even exist? Has she forever forfeited all right to any public life? I did not think she was qualified to become a senator from a standing start, but in no way, shape or form do I think that she is somehow unfit for any public role at all.

To the contrary, I think a woman with her good manners and ease with dealing with other high profile names would make a wonderful Ambassador.

And I think her star power would make the nation receiving her feel flattered.

As far as I’m concerned, Caroline Kennedy can be Ambassador representing my country any day.