Alleged shooter Major Malik Hasan

The New York Times reports that alleged Fort Hood shooter Major Nidal Malik Hasan will have a military trial:

The officials said the Departments of Defense and Justice had decided Major Hasan would be prosecuted in a military court, an indication that investigators believe he acted alone. Government lawyers had said his case might be tried in civilian court if he were believed to have conspired with nonmilitary defendants.

It’s also reported that Hasan’s name turned up in connection with a previous anti-terror investigation, and that some of his conversations were monitored:

Intelligence agencies intercepted communications last year and this year between the military psychiatrist accused of shooting to death 13 people at Fort Hood, Tex., and a radical cleric in Yemen known for his incendiary anti-American teachings.

But the federal authorities dropped an inquiry into the matter after deciding that the messages from the psychiatrist, Maj. Nidal Malik Hasan, did not suggest any threat of violence and concluding that no further action was warranted, government officials said Monday.

Major Hasan’s 10 to 20 messages to Anwar al-Awlaki, once a spiritual leader at a mosque in suburban Virginia where Major Hasan worshiped, indicate that the troubled military psychiatrist came to the attention of the authorities long before last Thursday’s shooting rampage at Fort Hood, but that the authorities left him in his post.

Counterterrorism and military officials said Monday night that the communications, first intercepted last December as part of an unrelated investigation, were consistent with a research project the psychiatrist was then conducting at Walter Reed Army Medical Center in Washington on post-traumatic stress disorder.

In a civilian criminal trial, the prosecution may circumscribe and control what information comes out during testimony by forgoing some charges. It is a difficult choice not to charge egregious conduct, but it may be a necessary trade-off to protect an ongoing investigation. However things are very different in military criminal cases.

In the interest of full disclosure, I am admitted to practice in the Court of Military Justice and in connection therewith did self study the Uniform Code of Military Justice (UCMJ). I have NEVER tried a Judge Advocate General (JAG) case and do not pretend to be expert in the UCMJ, at all.

However, I do know enough to point out that unlike civilian criminal trials, cases brought under the UCMJ provide a much higher level of discovery rights to the defendant than do civilian criminal cases. In JAG trials, defendants get to depose the witnesses. Yep.

Imagine the howling that would go on if a defendant in a regular criminal trial wanted to take the deposition of the cops who investigated the case. The judge would get a hernia from laughing so hard.

Whatever you may think about the lack of a jury as civilians may understand them, the UCMJ does provide the defendant with significant legal rights not available in the civilian legal system. Not only does the defendant have the right to depose witnesses:

(a) At any time after charges have been signed as provided in section 830 of this title (article 30), any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, an attorney competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.

(b) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.

(c) Depositions may be taken before and authenticated by any military or civilian authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths.

If there is an investigation prior to charges and specifications being preferred against the military defendant, he can participate in that investigation and cross-examine witnesses and present evidence in the investigation:

(b) The accused shall be advised of the charges against him and of his right to be represented at that investigation as provided in section 838 of this title (article 38) and in regulations prescribed under that section. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigation officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.

Imagine a civilian defendant asking to have his lawyer cross-examine witnesses in the Grand Jury room. The poor herniated judge would bust his truss from all the additional laughter. (Stop making the judge laugh so hard.)

Why is this significant to you, dear readers? Because it means the defense may give us a glimpse into whatever the heck has been going on with some of those intercepts that NSA and CIA claim are keeping us safe from terrorists. You know, when he deposes those witnesses?

graphic: Dr John 2005 via Flickr

A quick overview of Wednesday’s doings in House Judiciary Committee’s mark-up of the PATRIOT Act renewal.

The hearing started with John Conyers introducing a managers amendment to the bill that made tweaks to the overal bill to move them slightly closer to what the Obama Administration wanted. Republicans tried to gut National Security Letters (NSLs). One of those pertained to the changes in NSL minimization.

Republicans tried to eliminate special protections for library records, expand NSLs, and eliminate any minimization on NSL information. On all three, those amendments went down on a party line vote. Nadler did a particularly good job at defending the logic of the underlying bill, particularly the standards of proof the government must have to conduct certain kinds of searches.

Then, Adam Schiff (as I had predicted) piped up to make one of the changes the Administration wanted. He switched the 215 standard to what the Senate Judiciary Committee has adopted (showing the reasons to believe that records are relevant to an authorized investigation), but then required the Administration to come up with a better way to collect this information. Whereas in the Senate, that effort won bipartisan support, here it was strictly party line vote (though it seemed like Maxine Waters considered voting against it from the left).

The highlight of the hearing, though, was a speech that Mel Watt made. He talked about how, in the days after 9/11, he thought, “Well, if AG Ashcroft is protecting me from terrorists, who’s protecting me from AG Ashcroft?” He went on to bemoan the fact that there was no one like Bob Barr left on the Republican side. “I long for the day that somebody on your side of the aisle and remember that it was you that stood for individual rights at one point in your party’s history.”

All things considered, this is currently a better bill than the Senate side–though still one that allows for data mining of Americans. They’re coming back tomorrow, though, so we have not yet succeeded in improving on the SJC bill.

[Ed. note: The House Judiciary Committee is expected to reconvene Thursday at 11:00 a.m. EST; watch for more coverage at emptywheel.]

EFF's logo for its case against NSA warrantless wiretapping (graphic by hugh electronic via Flickr)

Well, you just don’t see this every day. As MadDog noted in comments last night, Judge Jeffrey S. White has entered a new order in NDCA denying the government’s request for a stay pending appeal in the telco documents FOIA case brought by the EFF. And he did it before the government ever even really asked for a stay!

This is the case Marcy discussed in The Blob That Passed Telecom Immunity after the internets went code red over an article in Wired that the Feds supposedly admitted telcos were an appendage of the government. To recap, the EFF filed a FOIA case against the ODNI seeking government documents evidencing telecom lobbying on immunity for corporate participation in Bush’s surveillance program. On September 24, 2009, Judge White found in favor of plaintiff EFF and ordered the records disclosed on or before October 9. On September 30, the government asked White for a stay so they could contemplate an appeal; White refused their request.

The EFF describes what transpired next in their press release:

On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.

Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.

Get that? The government once again did not request a stay from Judge White. And he went ahead and ruled against them as if they had. See, I told you there was a reason they tried to bypass Judge White the first go around. I guess Vaughn Walker is not the only judge in NDCA that is fed up with the disingenuous pleading and concealment of unconstitutional activity the government relentlessly spews forth.

Judge White’s five page Order has some really sweet passages:

There has been no material change in circumstances and the Court is still not persuaded that it should exercise its discretion to stay its directive that Defendants disclose the disputed documents pending a decision whether or not to appeal the Court’s original Order. At this point, because a notice of appeal has been filed, a properly noticed motion for a stay pending appeal would have been appropriately filed before this Court. See Fed. R. Civ. P. 62(c). However, such a motion is not before the Court and Defendants have repeatedly reiterated that they have not filed such a motion. Regardless, the Court will address the substantive factors in ruling on such a motion in order to obviate the need for the parties to return once again to this Court before addressing the issue of a stay pending appeal.

White is tired of being jerked around by the disingenuous antics of Obama’s DOJ and he decided to move them along to the 9th; and why not, they are going there anyway, no reason to let them delay and obfuscate on the way.

Then White sets the table for dissection of the DOJ specimen:

The Court reviewed and explicitly rejected Defendants’ contentions that any exemption under FOIA or privilege barred disclosure of the disputed documents and information. Having made no new argument, the Court does not find that Defendants have made a strong showing that they are likely to prevail on the merits of their appeal. Second, the Court finds that the public interest and the balance of hardships squarely favor timely production of the requested documents.

Nice. Then he lowers the boom. And, all things considered, it is simply a devastating blow:

Considering the delay in disclosure thus far in this matter, the current administration’s pointed directive on transparency in government, and the public’s renewed interest in the question of legal immunity for the telecommunications companies that participated in the warrantless wiretapping program while considering currently pending legislation repealing the amendments to FISA, the Court finds that the public interest lies in favor of disclosure. This Court has already found, when deciding the motion for preliminary injunction in this case, that “irreparable harm exists where Congress is considering legislation that would amend the FISA and the records may enable the public to participate meaningfully in the debate over such pending legislation.” Electronic Frontier Foundation v. Office of the Director of National Intelligence, 542 F. Supp. 2d 1181, 1187 (N.D. Cal. 2008). The Court finds that same harm to the public interest exists in the context of the current debate regarding legislation designed to repeal the retroactive immunity for telecommunications companies. The unusual circumstances of the continued debate on the issue of legal immunity for the telecommunications companies that participated in the government’s warrantless wiretapping program distinguish this case from the common FOIA matter. Although timely disclosure would negatively affect the Defendants’ position on appeal, it is not clear that Defendants will even pursue the appeal already filed and, regardless, the Court finds the equities weigh in favor of denial of a stay.

Ouch. In the first sentence, he hammers the government for its delaying tactics, pricks Obama for his earlier, but now seemingly abandoned, claim to favor transparency, and upholds the public’s right to know. Beautiful! And then, for good measure, he repeats the inherent interest the public has in the warrantless wiretapping issue as well as the attempt to immunize the telecoms.

Any bets on whether there is a copy of this decision sitting on Vaughn Walker’s desk? We shall see what the 9th Circuit does once this is back in their lap, but Judge Jeffrey S. White has left no doubt whatsoever what he thinks. Oh, and by the way, Judge White set the next disclosure deadline for October 16, 2009 at 4:00 p.m. PST. That would be this Friday. I bet there is some serious scurrying around by the DOJ today and Thursday.

Over three months later, and on the eve of oral argument in al-Haramain v. Obama, the most dangerous case to the government’s unfettered use of state secrets, the Administration has conveniently leaked word that its long awaited new policy on state secrets will be made public, perhaps as soon as today.

From Charlie Savage at the New York Times:

The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.

“The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests,” says a draft of a memorandum from Mr. Holder laying out the policy and obtained by The New York Times.

In a nutshell, the Administration’s new policy requires that a state secrets claim must be run by the DOJ leadership before being invoked in court. What, this wasn’t being done before?

Contrast this effectively meaningless policy from the administration with that contemplated by Senators Pat Leahy and Russ Feingold in proposed Senate legislation on state secrets policy. . . (Jerrold Nadler has a similar proposal in the House), which would:

Provide a uniform set of procedures for federal courts considering claims of the state secrets privilege
Codify many of best practices that are already available to courts but that often go unused, such as in camera hearings, non-privilege substitutes, and special masters

Require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits

Forbid judges from dismissing cases at the pleadings stage, before there has been any document discovery, while protecting innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish a valid defense

Require judges to order the government to produced unclassified or redacted versions of sensitive evidence when possible to allow cases to move forward safely

Establish security procedures to ensure that secrets are not leaked during litigation, including closed hearings, security clearance requirements, sealed orders, and expedited appeals

Establish congressional reporting requirements

Address the crisis of legitimacy surrounding the privilege by setting clear rules that take into account both national security and the Constitution

As can be discerned, there is quite a difference in the quality and seriousness of policy proposals. The Obama Administration has done nothing but put the proverbial lipstick on the existing baked pig.

Now why, lo after all these months, would the Administration suddenly announce their "new policy" at this instant? One reason certainly might be the fact that oral argument on plaintiffs’ motion for summary judgment in the absolutely critical state secrets case of al-Haramain v. Obama are scheduled for this morning in front of Judge Vaughn Walker in the Northern District of California.

The al-Haramain case is a perfect storm of problems for the government, there is warrantless wiretapping, the surveillance invaded an attorney-client relationship, there is known proof in the form of the sealed surveillance log under the protective custody of the court, and at least some of the surveillance is known to have occurred during the period after the infamous "John Ashcroft hospital scene" when Jim Comey and other DOJ officials revolted and the Bush Administration was unquestionably illegally operating their program under the insufficient signature of White House Counsel Alberto Gonzales.

But the monster problem that may be lurking beneath even this surface is that when Bush’s DOJ submitted declarations to the court describing their program and why state secrets were being invoked in 2006, they did not describe the underlying process by which they picked targets, to wit data mining. And the existence of data mining is a huge problem, because all activities in that regard had been rendered illegal and were specifically defunded by Congress in the Appropriations bill for that year.

Tack in the distinct possibility that the government made material misrepresentations about their data mining and warrantless surveillance to the FISA Court and that illegally information thusly obtained inappropriately made its way into the affidavit for the search warrant executed on the al-Haramain Foundation in Oregon, and you see the veritable cornucopia of problems the government could be so determined to stop inquiry into in the al-Haramain litigation before Judge Walker. Some or all of this may be the subject of the famous "inaccuracies" the government has tried to surreptitiously clean up since Obama took office.

There is a lot the government has to hide in al-Haramain, and they are desperate to do just that. It would be a perfect time to whip out a ruse in the form of a "new state secrets policy". Even if there is nothing at all new about it. To any extent this is the motivation behind the timing of the Obama Administration’s new state secrets policy, it is unlikely to sway Vaughn Walker, he is quite adroit at spotting the government’s pigs, even when they are well dressed and wearing lipstick.

Oh, and one other thing, it is pretty hard to take seriously the Administration’s claims for their "new policy" that:

The new policy would also direct the Justice Department to reject a request to use the privilege if officials decide the motivation for doing so is to “conceal violations of the law, inefficiency or administrative error” or to “prevent embarrassment.”

That claim defies credulity on a morning when the government is going to waltz into open court in San Francisco and blatantly do all of those things under an unconscionable claim of state secrets. Disingenuousness of this level is most certainly not "change we can believe in".

So, here’s my worry: Democrats, with the encouragement of people in the news media who seek bipartisanship for its own sake, may fall into the trap of trying to be anti-Bushes—of trying to transcend partisanship, seeking some middle ground between the parties.

That middle ground doesn’t exist—and if Democrats try to find it, they’ll squander a huge opportunity. Right now, the stars are aligned for a major change in America’s direction. If the Democrats play nice, that opportunity may soon be gone.

Two years later, we are staring Krugman’s prediction square in the face.  If Obama were a Democratic Dubya doppelganger, he would have made it clear from Day 1 that he would not settle for anything less than big wins on financial and healthcare reform, economic stimulus, and carbon emissions, and he would have used the presidential megaphone to make the case for them loudly and aggressively.  He’d talk about his mandate from the American people, lean on Congress, accuse the Republicans of obstructionism, and refuse to sign any bill that was not to his liking.  If he failed, so be it, but at least he’d go down swinging.

There would be no question about what policies Obama favored, and there would be a nonstop drumbeat to build public demand for those policies.  If Bush could win as much support as he did for nakedly wrongheaded policies like invading Iraq, torturing prisoners, and illegally wiretapping Americans, just imagine how much support Obama could get with an all-out PR blitz for saving the economy, saving the planet, and saving Americans from the insurance industry.

Instead, Obama has shown little fire and little urgency, standing on the sidelines while Blue Dogs and Republicans stall Dawn Johnsen and whittle his campaign initiatives down to nubs.  On healthcare, his support for the public option is fickle and unconvincing: He says he wants the public option, he prefers the public option, yet he was perfectly fine with letting Max Baucus stall it so that the teaturfers could turn Democratic town halls into armed madhouses.  He made it very clear that he’s willing to jettison the public option to pass something he can call healthcare reform, and backtracked (slightly) only when the Progressive Caucus refused to roll over as planned.

This all might not be quite so hard to take if Obama were at least the Anti-Bush on policy, but that’s where he’s chosen to be Bush Lite.  Yes, he pushed for a stimulus bill and a climate bill and healthcare reform, but he also let Republicans and conservadems turn them into corporate giveaways… probably because he’s surrounded himself with an economic team so pro-corporate that it believes in rewarding the people who sank our economy at the expense of everyone else.  He’s escalated our military presence in Afghanistan, and resisted releasing the next wave of Abu Ghraib photos or prosecuting Bush’s torture architects.

President Obama took office at a moment of great risk and great opportunity, with the winds of recession and broken government in his face, and popular support and huge congressional majorities at his back.  The situation was tailor-made for a president who is the Anti-Bush on policy and Bush Lite on politics, who would battle to roll back everything Bush did wrong.  What we got was President Broder, who values bipartisanship above all else, and still believes that the party that drove America off a cliff is worth listening to.  How’s that working out for us?

Bad news for those who were waiting with bated breath to see what was in the wiretap applications: the Second Circuit has overturned Judge Rakoff’s decision–it said that "good cause" had not been established. They also found that New York Times did not have standing to demand the unsealing of the records because they were not an "aggrieved party," that is, they were not a party who had been wiretapped, or had an interest of theirs affected by the existence of the wiretap.

However, the appellate court left a few breadcrumbs as well. They go ahead and admit they have been unable to find a SCOTUS case defining "good cause" in this context. They hang their entire analysis on NBC v. DOJ, 735 F.2d 51 (2^nd Cir.1984), a case where they previously found that the party trying to unseal wiretap applications was found to lack standing as an aggrieved party. Seemed like a gilded invitation to take this to Supreme Court.

The 2^nd Circuit decision did not deal with the elephant in the room, namely that there are suspicions about the origins of the investigation and DOJ should not be allowed to cover up wrongdoing–if any occurred–by cutting a deal with the defendants so that the wiretap applications were never unsealed and turned over in discovery.

The NBC decision, wherein NBC sought to unseal wiretap information to defend itself in a libel suit relating to stories it had aired suggesting that Wayne Newton was mixed up with the mafia, involved very different competing interests. Part of the reasoning relating to NBC was that there were ongoing law enforcement needs at stake, like protecting the confidentiality of informants as well as privacy issues.

However, here there is no ongoing investigation and Judge Rakoff , after reviewing the documents, said that any such concerns could easily be dealt with, in these documents, by redactions.

Further, unlike the NBC case, here DOJ has a clear conflict of interest because it is the integrity of a DOJ investigation that has been called into question and DOJ alone holds the information that would clear up any suspicions, one way or the other. A neutral judge having reviewed the actual materials requested, concluded that there was something in them of sufficient public importance to order them unsealed in redacted form.

Back during the height of furor over the firing of eight US Attorney’s, Sheldon Whitehouse gave a speech at CitiBar in which he said that he had reviewed information, not all of which he was able to talk about, that caused him to form a serious concern that maybe US Attorney’s Offices were being used at political hit squads (my term not his). We know from his book that David Inglesias felt that he was being pressured into doing a hit. Whether others may have done so on their own initiative, or because they were pressured to do so, remains a mystery.

In that context, and in the context of the controversy concerning the prosecution of Don Siegelman, the decision to call up a sitting governor–who you have not indicted–and tell him about the embarrassing (but apparently not indictable) fruits of your Grand Jury investigation (how much GJ material was discussed? Rule 6e anyone?), seems odd at best. Certainly they were not trying to "flip" Eliot Spitzer?

I assumed from the first time I heard about this motion that it was going to end up going to the Supreme Court. No matter who won 2nd Circuit, I didn’t think it should end there. This is such an important issue of balancing privacy rights vs. government transparency and accountability. Really important. Much more important than whether NBC was going to lose a libel case to Wayne Newton.

Oh, and to the extent that the Emperor’s Club investigation may have been iffy, that would make the American People, and their right to know what the government is doing in their name, the aggrieved party.

That will hardly be the only big story to come out of today’s release. How do I know? Marcy has a working thread up at emptywheel. . . .

Two days after Indonesia’s military death squads massacred Timorese civilians sheltering in a church by hacking them to death with machetes (and then nailing their victims’ entrails to the church walls) back in 1999, Admiral Dennis Blair defied White House orders to stop Indonesia’s crimes against humanity in Timor. As Blair — already fully briefed on the Liquicia massacres — first sat down with Wiranto, the Liquicia church walls still dripped with gore. US officials cabled there were no surgeons to treat the "scores of horrible slash wounds at Liquica." Instead of obeying orders from his civilian commanders to tell General Wiranto, commander of Indonesia’s military, to stop the massacres, Admiral Blair offered General Wiranto goodies. The US military attaché in Jakarta, Col. Joseph Blair, cabled that Dennis Blair reassured Wiranto, invited Wiranto to Hawaii, and promised military aid to the paramilitary unit that had just committed the atrocities.

When Washington learned of Blair’s defiance, Washington again ordered Blair to tell Wiranto to stop the massacres; Blair again defied civilian authority and supported Wiranto. A few months later, journalist Allan Nairn reported in The Nation:

When word got back to the State Department that Blair had said these things in a meeting, an "eyes only" cable was dispatched from the State Department to Ambassador Stapleton Roy at the embassy in Jakarta. The thrust of this cable was that what Blair had done was unacceptable and that it must be reversed. As a result of that cable from Washington to Roy, a corrective phone call was arranged between General Wiranto and Admiral Blair. That call took place on April 18.

I have the official report on that phone call, which was written by Blair’s aide, Lieut. Col. Tom Sidwell. According to the account of the call and according to US military officials I spoke to, once again Blair failed to tell Wiranto to shut the militias down. [snip]

At no point did Blair demand that the militias be shut down, and in fact this call was followed by escalating militia violence. . . .

Similar to the behavior of Bush’s Torture-Meisters, Blair misled Congress about the crimes in which he was complicit. Amy Goodman and Allan Nairn gave the details:

In testimony given before the Senate Armed Services Committee on March 3rd, 1999. . . . Blair discussed the fall of the Indonesian dictatorship Suharto. Suharto fell in May of 1998. And Admiral Blair, in his prepared statement, submitted-made the following statement: "Throughout this process, the Indonesian armed forces have played a difficult but generally positive role. While there were instances of individual or small unit violence against Indonesian citizens, military leadership firmly supported the constitution. Moreover, the incidents of abuses, shootings and kidnappings that were reported are now being investigated and the perpetrators punished,"

Now, that is simply false. Almost every element of that statement is false, as anyone who is familiar with the situation in Indonesia at that time could tell you. It was not individual small units, but top Indonesian military officers, led by General Prabowo, who carried out the Kopassus kidnappings of activists, known as the "Rose Team" kidnappings. Not only did this involve senior officers, but those senior officers were US-trained. And the specific Kopassus intelligence units doing the kidnapping had a liaison with the US military attaché in the embassy, and General Prabowo was a longtime US protégé. The senior officers of the Indonesian military instigated anti-Chinese riots, in which their agents rampaged through the streets, burned houses, conducted mass rapes of Chinese and other women in the streets, a model of mayhem that was used one year later in occupied East Timor. They were also involved in the killings of protesters in the streets.

Together with Amy Goodman, Allan Nairn has followed Indonesia’s genocidal war against the Timorese for decades; the two of them barely escaped death in the 1991 Santa Cruz massacre that motivated global support for the Timorese in their struggle for freedom from Indonesia’s occupation and human rights crimes. When news Obama chose Blair for DNI first surfaced in January, Nairn appeared on Democracy Now to discuss Blair’s responsibility for crimes against humanity.

Blair even offered Wiranto aid for the specific unit, the Brimob, the paramilitary police who had gone into that church as they chopped up the refugees and chopped up the clergy who were hiding there. General Wiranto naturally took this as reassurance. He escalated the attacks. Wiranto was later indicted for crimes against humanity. Blair has not been held to account.

The US Senate — the august body that ratified the human rights treaties that proscribe war crimes and crimes against humanity and require prosecution of the perpetrators — also didn’t hold Blair to account. The Senate approved Blair for Director of National Intelligence by unanimous voice vote on January 28.

Admiral Blair rewarded the Senate and President Obama by hiring a CIA lawyer deeply involved in the war crime known as torture. As Spencer reported:

The minutes of the meeting — which the report makes clear are paraphrases and not direct quotations — say that Fredman discussed waterboarding, referred to in the minutes as the “wet towel” technique from SERE, by saying, “If a well-trained individual is used to perform this technique it can feel like you’re drowning. The lymphatic system will react as if you’re suffocating, but your body will not cease to function. It is very effective to identify phobias and use them (i.e., insects, snakes, claustrophobia).”

Fredman is described by the minutes as discussing moving detainees to avoid their exposure to the International Committee of the Red Cross. He is described as saying that the international convention against torture is “written vaguely,” making it impossible to define mental torture: “It is basically subject to perception. If the detainee dies you’re doing it wrong.” The report cites Fredman as advising against recording interrogations, since “even totally legal techniques will look ‘ugly.’” While Fredman is described as cautioning that “mock executions don’t work as well as friendly approaches,” he noted that such techniques should be “handled on a case by case basis.”

And now Blair appears to have double-crossed a second President: The NYT’s report revealed that last month, Blair touted torture as effective on the same day the administration he purports to serve proclaimed that it was not. When DNI Blair’s office released his remarks, they just happened to leave out the sentence in which Dennis Blair stated that torture works:

In an indication of the crosscurrents the president has faced in dealing with the issue, his own national intelligence director said in an internal memo last week that the now-banned interrogation methods had produced valuable information, contrary to the White House view that they had not been effective.

“High-value information came from interrogations in which those methods were used and provided a deeper understanding of the Al Qaeda organization that was attacking this country,” Dennis C. Blair, the intelligence director, wrote to his staff last Thursday as the previously secret memos were released.

A condensed version of the Blair memo was distributed to news organizations that day without that sentence. The original memo was provided to The New York Times on Tuesday by a critic of Mr. Obama’s policy. Wendy Morigi, a spokeswoman for Mr. Blair, said Tuesday that the sentence had been dropped in a routine process of shortening an internal memo into a statement for the news media.

Responding to a query about the fuller memo, Mr. Blair issued a statement Tuesday evening underscoring his support for the president’s release of the previously secret documents and for Mr. Obama’s decision to ban the “enhanced interrogation techniques” at issue.

“We do not need these techniques to keep America safe,” said Mr. Blair, who added: “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. 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.”

Well, after all this, who wouldn’t trust Dennis Blair? So long as we’re in a trusting mood, here’s a question: Admiral Blair, who do you serve — America’s civilian authority, or those complicit in the war crime known as torture?

1. Congressman Jane Harman (D – CA) told a suspected Israeli agent that she would lobby the Justice Department to reduce espionage-related charges against two officials of AIPAC, the powerful pro-Israel lobby.

2. This is known because of an NSA Wiretap.

3. The suspected Israeli agent then promised to lobby Nancy Pelosi to make Harman chair of the House Intelligence Committee after the 2006 elections (she wasn’t).

4. There were some reports of this influence peddling in 2006, but it was dropped for a “lack of evidence” by Alberto R. Gonzales, who intervened to stop the investigation.

5. Gonzales intervened because he wanted Harman to defend the administration’s warrantless wiretapping program, which was about break in The New York Times.

6. And she promptly went out and defended it.

So as you can see the circle is complete. Caught on an NSA wiretap, Congressperson is saved, so as to defend illegal NSA wiretapping.

Which one of these revelations is the worst? And why now?

photo by mockstar

When yet more Bush-era OLC memos justifying as the official policy of the United States what many in the rest of the world believe to be torture (myself included) were released on Thursday, I tried to make sense of how John Ashcroft — a devout and committed fundamentalist Christian– could find himself approving what those memos recount. The next day (Good Friday by the Orthodox church’s calendar and one week after Good Friday by the western church’s calendar) the answer leaped out at me.

John Ashcroft is the Caiaphas of Torture. 

For many of the Christian faith, the story of Jesus’ arrest, trial, torture, and death are retold in their entirety on Good Friday, as recounted in the Gospel of John. One of the central figures in the story is Caiaphas, the high priest at the time. But he makes his first appearance in John’s story much earlier, as Jesus’ popularity is becoming problematic for the religious and political Powers That Be in Jerusalem. As the gospel story recounts things:

. . . the chief priests and the Pharisees called a meeting of the council, and said, ‘What are we to do? This man is performing many signs. If we let him go on like this, everyone will believe in him, and the Romans will come and destroy both our holy place and our nation.’ But one of them, Caiaphas, who was high priest that year, said to them, ‘You know nothing at all! You do not understand that it is better for you to have one man die for the people than to have the whole nation destroyed.’ (John 11:47-50, NRSV)

I can hear Caiaphas in my head, arguing passionately with the council members. "Never mind the commands of Moses: ‘you shall not murder’ and ‘you shall not bear false witness.’ Never mind the words of the prophets, calling for justice and righteousness in our laws and courts. We’re facing an emergency here — one that threatens the temple, the city of Jerusalem, and the nation as a whole. Extraordinary measures are called for. We have to look past legalisms, and do what needs to be done. If this is what is needed to keep our nation safe, then that’s what we need to do." Three verses later, the gospel writer tells the readers that Caiaphas’ colleagues agreed: "So from that day on they planned to put him to death."

In Bart Gellman’s excellent book Angler, he recounts the famous hospital visit by Andy Card and Alberto Gonzales, where they tried and failed to get the ailing Ashcroft to re-assert his power over acting Attorney General James Comey and reauthorize the warrantless wiretapping program. After Ashcroft backed Comey, and Card and Gonzales left, Gelman notes a blessing that FBI Director Mueller gave to Ashcroft: "In every man’s life there comes a time when the good Lord tests him. You passed your test tonight."

Perhaps so. But I have to wonder: did Ashcroft finally act on behalf of justice that night, because he was tired of the years he spent being a modern-day Caiaphas?

Sign the petition telling Attorney General Eric Holder to appoint a special prosecutor to investigate torture here.