The trial of Osama's driver

By Libby

I suppose the law of averages would dictate that a tiny handful of the Gitmo detainees really are high value inmates, worthy of prosecution, but judging from the outcomes of the previous miltary hearings that pose as judicial review, I'd say not many of them really are players that deserved the draconian punishment they now suffer. Not that this will deter the administration from trying to make them so. Take for example, Osama's driver.

The Navy lawyer for Osama bin Laden's driver argues in a Guantánamo military commissions motion that senior Pentagon officials are orchestrating war crimes prosecutions for the 2008 campaign.

Notably, it describes a Sept. 29, 2006, meeting at the Pentagon in which Deputy Defense Secretary Gordon England, a veteran White House appointee, asked lawyers to consider Sept. 11, 2001, prosecutions in light of the campaign.

''We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election,'' England is quoted as saying.

You'll remember it was this particular political interference that led to the resignation of Air Force Col. Morris Davis, who served as former chief Pentagon prosecutor. But even leaving aside the untoward political machinations for a moment, it defies logic to cast the driver as a mastermind in any AQ plots. In any criminal enterprise, isn't the driver usually the one who's too out of the loop to be trusted with any part of the operation except driving the car? One doubts he was privy to any high level meetings. More likely he would be left waiting in the car.

I mean think about it. Isn't that like holding Hilter's limo driver responsible for the Holocaust? Maybe Hamdan was even a loyal and willing soldier in the AQ organization but the only thing high value about him is likely to be his political value to the GOP in timing his prosecution to influence the election cycle.

A small serving of justice for Siegelman

By Libby

The attorney purge scandal largely dropped out of the media narrative once "Fredo" Gonzales finally resigned, and nobody has been indicted for the gross politicalization of our Justice system yet, but at least one small step towards justice was finally taken in Alabama.

MONTGOMERY -- A federal appellate court today ordered former Gov. Don Siegelman released from prison while he appeals his 2006 conviction, saying there are "substantial questions" about his case.

That's putting it mildly. The court effectively said the prosecution didn't make its case. As Steve Benen put it in an excellent overview post, "Of course he shouldn’t have been imprisoned; the charges against him have always been a bad joke." The entire justice system has become a criminally bad joke if you ask me.

It's not like Siegelman is the only victim. One can't fail to remember the unfortunate case of Georgia Thompson in Wisconsin. She was wrongly convicted by the same group of politically beholden thugs simply to provide oppo for a failed attempt by the GOP to defeat Gov. Jim Doyle. She also spent many months wrongfully incarcerated and suffered the ruination of her personal life.

I hope I live to see the day when the true criminality of this administration is finally fully exposed and every single perp is convicted and imprisoned for the grievous damage they have done to the rule of law of this land.

Hold McCain accountable

By Libby

Here's your 30 second point and click activism of the week. This just in off the transom.

Dear Libby ,

John McCain is breaking the law.

When McCain's presidential campaign was in trouble, he opted-in to public financing through the primary, limiting him to a $54 million spending cap.

But laws aren't for "mavericks"...

McCain's latest spending report, filed by his own campaign, shows he has spent in excess of $58 million so far -- a public admission by his own hand that he has broken the law.

We filed a formal complaint to Federal Election Commission yesterday, and we want you to sign-on for a second delivery of signatures later this week.

Please read and co-sign the letter to the FEC right now.

This one is so simple to sign onto that it won't take ten seconds unless you're a really slow typist. McCain is gaming the system using taxpayer dollars. He needs to be held accountable for ignoring the rule of law. Sign the letter and pass the link on. Let's generate some steam for this issue. Maybe our lamebrained professional media will cover it more fully if we make enough noise.

Rush Abetts Multiple Felonies (Updated - Rush's Defense)

By Cernig

Remember Rush Limbaugh calling for Republicans to change sides for a day and vote for Clinton in Texas and Ohio just to keep the Dem primary bloodfest going a while longer?

He has a wee problem:

While this all makes for great talk radio and sounds like fun, there is one catch: What Limbaugh encouraged Republican voters to do in Ohio was a fifth-degree felony in that state, punishable with a $2,500 fine and six to 12 months in jail. That is because in order to change party affiliation in Ohio, voters have to fill out a form swearing allegiance to that party’s principles “under penalty of election falsification.”

I assume that encouraging others to commit a felony is itself illegal - aiding and abetting, isn't it?

Hat tip to Mike at CFLF)

Update Rush's defense? Even if you voted McCain, you'd be voting for Democratic principles.

CALLER: Hey, I just wanted to put your mind as ease as it pertains to the potential indictment that might come down against you and other Republican crossover voters who voted in the Democrat primary in Ohio and now potentially Texas. If the basis of the charges would be that the crossover voter has to attest that they'll vote with Democrat values in the fall, then if they vote for John McCain, aren't they still within the confines of the law?

RUSH: Well, you're giving away some secrets, should we have to go to court here. But a very, very, very insightful deduction on your part.

CALLER: Sorry about that, Rush.

RUSH: How in the world -- that's okay. (laughing)

CALLER: It appears to me that you can vote for Obama, Clinton, or McCain and you're pretty much voting within --

RUSH: Democrat Party principles.

CALLER: -- Democrat, correct.

RUSH: Exactly right. (laughing) Arthur, you're a very insightful man.

His other defense is that Obama and Clinton have also called for Republicans to re-register as Dems, although he conveniently forgets that the difference is they're asking for those moderate conservatives sick of the GOP's movement to the wingnut extreme Right to consider switching sides on a permamnent basis, not just for a day.

But after this one - - go on John, throw the bum under the bus. Call for his indictment.

Why defeating McCain matters

By Libby

I can sum it up in the six words represented by the acronym SCOTUS. The impact of these appointments span generations, not just terms of office. Does anyone really want to take a chance on tilting the court any further to the right than this?

When the U.S. Supreme Court two years ago limited the First Amendment protections available to public employees, faculty groups thought that they had dodged a bullet. While the decision didn’t go the way professors hoped, it specifically indicated that additional issues might limit its application in cases involving public college professors.[...]

The Supreme Court case that has set off this concern has nothing to do with higher education. Rather, in Garcetti v. Ceballos, the court ruled 5 to 4 that normal First Amendment protections did not protect Richard Ceballos, a Los Angeles deputy district attorney who was demoted and transferred after criticizing a local sheriff’s conduct to his supervisors. In his decision, Justice Anthony M. Kennedy wrote: “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Employer discipline? For whistleblowing? I can't imagine a greater need for First Amendment protection than in exposing wrongdoing. Especially in our justice system. But now this ill-advised precedent is being applied more broadly.

In the current case, Juan Hong, a professor of chemical engineering at the University of California at Irvine, maintains that he was unfairly denied a merit raise because comments he made in faculty meetings offended superiors. Some of those comments concerned personnel decisions. More generally, Hong said that his department was relying too much on part-time instructors to teach lower-division courses, and that students were entitled to full-time professors.

The district court dismissed the suit, saying that these discussions were part of the “official duties” of professors, and thus under the Garcetti decision were not entitled to First Amendment protection. The court did not determine whether the lost merit raise was related to the comments, and the faculty groups’ brief focuses on the legal principles, not the specific cases.

I don't get the logic of that decision either. How is criticizing the administration part of the 'official duties?' Is it in the job description? The plaintiff's brief argues that "[t]he speech of university professors merits a special degree of protection...". I'd argue that every citizen deserves an unfettered degree of protection for dissent. But as the article notes, this isn't entirely unexpected.

While the brief expresses shock that the Garcetti decision would apply in higher education, the dissent in the 2006 ruling suggested just that possibility. Justice David Souter wrote that the majority decision “is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil the First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’ ”

I don't think it's all that much of a stretch to imagine a day when this decision is ultimately used to squelch all criticism of the government by any citizen. If we allow a Republican nominee to fill the next vacancy, and there will almost surely be one in the next term, I'd say it's more than just a little possible.

"So?" - So This

By Cernig

Mickey Edwards, 16-year Republican Congressman from Oklahoma, founding trustee of the Heritage Foundation and Princeton scholar, has found his contrary voice to the Bush?Cheney GOP late in life - but, oh boy, is it a clear one.

The decision to go to war...to send young Americans off to battle, knowing that some will die -- is the single most difficult choice any public official can be called upon to make. That is precisely why the nation's Founders, aware of the deadly wars of Europe, deliberately withheld from the executive branch the power to engage in war unless such action was expressly approved by the people themselves, through their representatives in Congress.

Cheney told Raddatz that American war policy should not be affected by the views of the people. But that is precisely whose views should matter: It is the people who should decide whether the nation shall go to war. That is not a radical, or liberal, or unpatriotic idea. It is the very heart of America's constitutional system.

In Europe, before America's founding, there were rulers and their subjects. The Founders decided that in the United States there would be not subjects but citizens. Rulers tell their subjects what to do, but citizens tell their government what to do.

If Dick Cheney believes, as he obviously does, that the war in Iraq is vital to American interests, it is his job, and that of President Bush, to make the case with sufficient proof to win the necessary public support.

That is the difference between a strong president (one who leads) and a strong presidency (one in which ultimate power resides in the hands of a single person). Bush is officially America's "head of state," but he is not the head of government; he is the head of one branch of our government, and it's not the branch that decides on war and peace.

When the vice president dismisses public opposition to war with a simple "So?" he violates the single most important element in the American system of government: Here, the people rule.

It's been obvious to many of us for a very long time that the GOP had been taken over by people who would prefer that the people not rule. I'm glad to see more and more conservatives figuring that out for themselves in the last year of the Bush presidency. It might just help prevent a McSame presidency continuing Bush and Cheney's work.

Certainly McCain should be seen as going into the elections with all of his policies, along with his candidacy, already the lamest kind of ducks.

Oh btw, we accidentally tossed those hard drives into the ocean

By Libby

It's not exactly suprising news, but it's now confirmed that the White House will not be turning over any of those thousands of damning emails. Why? Oh, just a twist on the classic excuse, the dog ate my homework.

WASHINGTON - Older White House computer hard drives have been destroyed, the White House disclosed to a federal court Friday in a controversy over millions of possibly missing e-mails from 2003 to 2005.

The White House revealed new information about how it handles its computers in an effort to persuade a federal magistrate it would be fruitless to undertake an e-mail recovery plan that the court proposed.

"When workstations are at the end of their lifecycle and retired ... the hard drives are generally sent offsite to another government entity for physical destruction," the White House said in a sworn declaration filed with U.S. Magistrate Judge John Facciola.

I read this and immediately remembered the day I discovered the true meaning of the word punkd. It was over an alleged April Fool joke, except that it was pulled in March and wasn't disclosed until April 4th, but perhaps some of you remember the photoshopped graphic of Rove holding a Coptix folder in Chatanooga.

As I said in comments to that post at the time, I saw an item in a local newspaper about it and the photo was real. Rove was in Chatanooga and so apparently was Bush. What were they doing there? It's hardly a customary whistle stop on a PR tour but it is coincidentally the home of the company that housed the offsite servers that stored the disputed emails. I noted at the time that Congress should have subpoenaed the hard drives before they were destroyed. Too bad they didn't take my advice.

The real truth about Gitmo

By Libby

With a deceitful administration and and a dysfunctional media, it's sometimes difficult to know who or what to believe about Guantanamo but I just ran across this article from my old hometown paper that laid to rest any doubt about the conditions there. It's subscription only, so I won't even bother to give you the link to the article itself, but here's the material quotes.

There is torture at Guantanamo Bay, said Eisenberg. He claims to have seen the results - a crippled hand, men walking with permanent limps, others with physical disfigurements and mental scars. There is little access to doctors for detainees, said Eisenberg.

One of his clients has a skin disease. Eisenberg suspects it is pellagra, a disease often associated with a lack of niacin or protein in a person's diet. The man's skin flakes off into small piles on the desk as Eisenberg talks with him.

There is no human contact for detainees beyond orders from soldiers, said Eisenberg. Detainees are kept in isolated cells almost 24 hours a day. Captives' cells are staggered so men are not within speaking distance of someone who would understand their language.

There is no rest at Guantanamo, said Eisenberg. The buzzing bulbs that light detainee cells and prison halls are never turned off.

This is hell's waiting room, as Eisenberg sees it, and he wants it shut down for good.

I've known Buz Eisenberg for over 20 years. He's a relentless civil libertarian, a great lawyer who has donated countless hours of free time to civil rights cases and a thoroughly honest man. If he says the inmates at Gitmo are being tortured, then they are being tortured. I surely hope our next president will make shutting down that hellhole a priority.

More Interrogation Tapes Still To Be Found

By Cernig

Senator Ted Kennedy wrote to SecDef Bob Gates on the 14th asking him for details of all interrogation tapes in their possession - and details of any and all tapes destroyed. His letter says, in part:

recently learned that the Department of Defense has been conducting a review of the videotaping of interrogations at military facilities from Iraq to Guantánamo Bay, and the Department reportedly has identified some 50 tapes. I’m disappointed, however, to learn that the Defense Intelligence Agency claims to have routinely destroyed tapes of interrogations conducted in the past seven years.

A recent study, "Captured on Tape: Interrogation and Videotaping of Detainees in Guantánamo," by Professor Mark Denbeaux and his colleagues, used publicly available documents to show that more than 24,000 interrogations have been conducted at Guantánamo since 2002 and that every one of these interrogations was videotaped by the government. Meticulous logs were kept of information related to interrogations at Guantánamo, so it should be possible to identify how many videotapes still exist and how many have been destroyed.

I hope you agree that no further tapes should be destroyed, and I request that you take appropriate steps to guarantee the preservation of all interrogation tapes in the Department’s effective control, as well as any transcripts or documents related to the interrogations that may exist. These tapes and documents will likely be relevant both to the adjudication of the status of detainees and to congressional oversight of the treatment of detainees.

I ask that you inform me of the number of tapes in the possession of the Department of Defense and your plans for preserving them. I also ask that you preserve any transcripts of interrogations and any records relevant to tapes that may have been destroyed. Please inform me of the existence of such transcripts and records and of the specific steps you will take to preserve them. I also ask that you provide a report on all interrogation tapes the Department is aware of that have been destroyed or are no longer accessible.

I’m sure you recognize the special importance of the questions raised by the interrogation videotapes and the need for Congress to obtain complete information, so that it can perform its constitutional oversight and legislative responsibilities.

It's nice to see someone on the Hill is keeping an eye on this issue, especially when there's been a great deal of official evasion on the issue and a massive disconnect between public statements by DoD officials and military officers on how many tapes were made. The Surgeon General has stated in an official report that "all interrogations are videotaped" while the Pentagon press secretary has told journalists that "this is not a widespread practice” and that it was up to individual commanders whether to tape interrogations. Recently, the DoD "found" fifty interrogation tapes it seemingly didn't know it had but Seton Hall Law experts estimate that at least 24,000 tapes were made in total.

But one of the authors of the Seton Hall report tells me that another official source points positively to far more widespread taping than evasive stetements recently have suggested. Asked for comment, Michael Ricciardelli writes that "As I understand it, all fifty tapes the Pentagon has admitted to having found come from the brig in Charleston. The data indicates that an inventory of other military installations would prove fruitful."

there is another high level Governmental report which confirms the use of video recording of interrogations in Iraq and Afghanistan. Because our report focuses rather exclusively upon video recordings in Guantanamo, and we found this other report very late in the process, the information appears only as a footnote therein used to support the use of video recording of interrogations as an overall Govermental Policy.

On July 21, 2004 the Inspector General of The Army issued a wide ranging report on Detainee Operations titled "Detainee Operations Inspection."

Regarding interrogation in Afghanistan and Iraq the Inspector General of the Army stated the following in Chapter 4, "Interrogation Operations," Finding 6, (P.35-36 of Report; Adobe pagination of the document as found on the Pentagon web site, P.48-49.)

"The DAIG Team [Department of the Army Inspector General] observed 2 detainee facilities using digital recording devices, 1 in Afghanistan and 1 in Iraq. Because interrogations are confrontational, a monitored video recording of the process can be an effective check against breaches of the laws of land warfare and Army policy. It further protects the interrogator against allegations of mistreatment by detainees and provides a permanent record of the encounter that can be reviewed to improve the accuracy of intelligence collection. All facilities conducting interrogations would benefit from routine use of video recording equipment."

I would submit that the above Finding of the Department of the Army Inspector General substantiates two important points: 1) It expressly states that in Iraq and Afghanistan, as of July 21, 2004, video recording of interrogations occurred in at least "2 detainee facilities," "1 in Afghanistan and 1 in Iraq;" and 2) After July 21, 2004, interrogations which were not videotaped, were not videotaped contrary to the express and offical recommendation of the Inspector General of the Army and the Secretary of the Army who expressly approved such findings.

Importantly, as the Inspector General found, video recording of Interrogations "provides a permanent record of the encounter that can be reviewed to improve the accuracy of intelligence collection." [Emphasis mine - C]

Perhaps Senator Kennedy could call Gates, Pentagon Press Secretary Geoff Morell and senior officers before an investigative hearing and ask them why exactly their statements show that the Inspector General of the Army and the Secretary of the Army's advice was ignored, if indeed it was, and more importantly....who had the authority to order that their advice be ignored?

Crime And Cover-Up

By Cernig

You really should read the NY Times' editorial today. Both Tristero and BooMan have the same take on it - that it's about time the NYT and others in the mainstream woke up, smelled the coffee, and got as angry about Bush's impact on the underlying fabric of American civil liberty as leftie bloggers have been for years.

Here's a taste:

For more than two years now, Congress, the news media, current and former national security officials, think tanks and academic institutions have been engaged in a profound debate over how to modernize the law governing electronic spying to keep pace with technology. We keep hoping President Bush will join in.

Instead, the president offers propaganda intended to scare Americans, expand his powers, and erode civil liberties — and to ensure that no one is held to account for the illegal wiretapping he ordered after 9/11.

...The president will continue to claim the country is in grave danger over this issue, but it is not. The real danger is for Mr. Bush. A good law — like the House bill — would allow Americans to finally see the breathtaking extent of his lawless behavior.

The mainstream media gave Bush a pass on all his soft-totalitarian tricks for most of his presidency - the best part of eight long years - before finally deciding to speak up. Let's hope that they've already figured out that John McCain is just more of the McSame and won't give him the benefit of any doubt at all on his scaremongering tactics in the run-up to November.

Tanks In Tibet

By Cernig

Reports are coming in of tanks and machine-gun posts on the streets of the Tibetan capital, Lhasa, and another city, Xiahe, along with up to 100 dead. Unless, that is, you live in Beijing - in which case you're watching a blank screen when international satellite news reports talk about it.

The disruption comes just months before the Olympic Games, when China's leaders had hoped to display a 'harmonious society'. However, chaos has gripped Xiahe, which is home to a large community that considers itself part of greater Tibet even though it is outside of the Tibet Autonomous Region.

According to Sanjay Tashi of the Free Tibet Campaign, the city centre was filled with tear gas, cars were set on fire, government buildings ransacked and the banned Tibetan flag flew over a school.

Other witnesses said they saw 10 to 20 truckloads of riot police moving into the area. Police have fired tear gas rounds and arrested some protesters. But the crowd stormed the jail and released the prisoners, Tashi said.

In Lhasa, police have locked down the city, patrolling the streets and setting up checkpoints on many roads. Foreign tourists have been ordered to leave the central area, with many flying out of Tibet. Those who stay are restricted, though they say there has been no official curfew.

'The army and police forbid us from walking down the road, so our activity is confined to the hostel,' said one traveller. He said tanks and soldiers were patrolling the streets and guarding junctions. Other witnesses have reported troops setting up machine gun positions and there were unconfirmed reports of shooting.

The authorities blame Tibetan insurgents working on the orders of the Dalai Lama and have vowed to hunt down the perpetrators of what state media called 'sabotage'. Police warned that anyone who did not turn themselves in by Monday faced 'stern punishment by the law'.

...Overseas Tibetan groups say police killed at least 36 Tibetan protesters, including three monks. Free Tibet Campaign reports that 26 demonstrators were shot or blown up while demanding the release of political prisoners in Lhasa's notorious Drapchi prison. Other groups say the death toll could be more than 100.

The UN, US and UK have condemned Chinese repression - but not too loudly. After all, the Chinese hold all America's notes...and there's an Olympics coming. Wouldn't want to deprive the millions of their televised sport.

We're winning on FISA

By Libby

Well blow me over with the wind of a butterfly's wing. The House passed a FISA bill today that did NOT include telecom immunity. As my friend Dax would say, just damn. Now it's far from over but it's just a little short of miraculous in my mind that we've come so far and so long in this fight.

I don't pretend to understand the procedural manuevers myself, but this diary at The Great Orange Satan explains how the House effectively forced the immunity supporters into a corner. Considering the long, sorry history of capitulation, I'm trying not to get my hopes up too far, but for the moment, it's fun to watch the White House sputter over the setback anyway.

Don't let anyone tell you that point and click activism doesn't make a difference. If we hadn't kept the pressure on, I doubt I would have been posting this today. Thanks to everyone who took the time to raise a ruckus and didn't give up even when it looked like all was lost.

And special props to the team led by FireDogLake and Glenn Greenwald, for pressuring the Bush Dogs into doing the right thing. Jane Hamsher has the details.

"Doing A Schultz" On Torture

By Cernig

Andrew Alexander, political editor of the UK's very conservative Daily Mail newspaper, today has a leader regarding Bush's veto of the bill banning torture and accuses Britain of looking the other way.

We were told that Saddam Hussein was an enemy of mankind because he used torture.

Now we witness the gruesome spectacle of President Bush endorsing torture by vetoing the Bill from Congress outlawing "waterboarding" and other equivalently barbaric forms of interrogation.

This must be the first time in modern history that a head of state has openly and officially endorsed torture.

Alongside that, there is reason to believe that the U.S. continues with its secret "extraordinary rendition" flights to take suspects - remember that is all they are - to countries where they apply even more savage torture.

This is an American President who prides himself on his moral sense, a born again Christian who starts the day with prayers and has forsworn alcohol following a very boozy youth. The humbug makes one gasp.

What does he say in his prayers? "Oh Lord, make me a decent human being, but not yet"?

So we have the free world, as we call it, the Western Alliance, the proclaimed centre of civilised values, led by a man endorsing methods applied by Hitler and Stalin. What do we do about it?

The British Government insists it is opposed to all torture and refuses the use of our air space for planes on rendition flights - a rule the CIA has not always obeyed. But our indignation stops there.

We continue to heap fulsome praise on the value of the Anglo-American special relationship which must never be upset.

The Foreign Office will say only that Washington knows our attitude to torture. There has been no protest about Bush's latest move.

Just imagine what our Government would say if Russia, China or India were officially and openly to say they sanctioned torture. Our noisy indignation about human rights would know no bounds.

But in the American case, we do nothing.

Alexander is an old friend of Enoch Powell, an old-style demagogue of the "fear of a brown planet" anti-immigration polemic so beloved of Steyn and others. When even such a fellow extremist won't stand beside the American Right, they should take the hint. But Alexander is correct on this much - if Bush were the president of some tiny African or Asian nation - or some Eastern European balkanised remnant - the talk would be of UN resolutions, of sanctions and perhaps even of humanitarian military intervention. That it isn't is more a testament to American economic and military power than to Bush's moral high ground - and the U.S. Right shouldn't mistake the former for the latter.

The Gitmo Tape Flim-Flam

By Cernig

Compare the following two statements.

"All interrogations are videotaped"

(Lieutenant General Kevin C. Kiley, M.D.—the Surgeon General of the United States Army, “Overview of Site Visits to Afghanistan (OEF), Cuba (GTMO), and Iraq (OIF)”; Subsection 18-2d, May 2005.)

“This is not a widespread practice,” said Mr. [Geoff] Morrell, the Pentagon press secretary. He said that it was up to individual military commanders whether to tape interrogations...

("Pentagon Cites Tapes Showing Interrogations", By Mark Mazzetti and Scott Shane, New York Times, March 13, 2008.)

I'm trying to figure some way in which these two are consistent, yet it seems to me that they directly contradict each other.

I ask because today the Pentagon admitted to finding 50 lost interrogation tapes - and admits it might find more but says that such tapes were routinely destroyed after they were judged to be of no more use - despite their comprising important evidence not just for the prosecution or defense in detainee trials but also for or against allegations of torture and abuse against interrogators.

I've a problem with the paltry number of tapes too.

A recent report by Seton Hall Law noted that:

On June 9, 2005, within weeks of the release of Lieutenant General Kiley’s report, Lieutenant General Randall Schmidt produced an amended report which reviewed FBI allegations of detainee abuse at Guantánamo Bay. According to Lieutenant General Schmidt’s report, more than 24,000 interrogations had been completed at Guantánamo Bay since 2002.

And yet today the NYT reports that:

The Defense Department is conducting an extensive review of the videotaping of interrogations at military facilities from Iraq to Guantánamo Bay, and so far it has identified nearly 50 tapes, including one that showed what a military spokesman described as the forcible gagging of a terrorism suspect.

...officials said it appeared that only a small fraction of the tens of thousands of interrogations worldwide since 2001 had been recorded.

The officials said the nearly 50 tapes they identified documented interrogations of two terrorism suspects, Jose Padilla and Ali al-Marri, and were made at a Navy detention site in Charleston, S.C., where the two men have been held.

I'll pass over the question of whether gagging a detainee who you're trying to interrogate sort of defeats the purpose, for now, and just note that these newfound tapes aren't even from Gitmo - so what happened to the 24,000 tapes that must have been made there?

And why exactly are Pentagon spokespeople being so evasive about it all now, contradicting past statements and official reports?

New tactics in the FISA fight

By Libby

I'm with Sha on the time change. I'm foggy and cranky in trying to readjust and it's a work week so my posting has been off, but I'm still reading the news even if I don't have the energy at the end of the day to talk about it. Anyway, new developments in the FISA fight have been a bit confusing in my impaired state. I received a disturbing email yesterday from Jane and Glenn and the team that said we were about to lose. Then this morning, TPM posted this encouraging news.

As The New York Times reports this morning, the House leadership's draft proposal for a surveillance bill contains a provision that would reject giving retroactive immunity to the telecoms. Instead, it would give the courts authorization to hear the classified material at issue in the case -- in essence disposing with the administration's claim of the state secrets privilege. I had a senior House aide walk me through the proposal, which is sure to infuriate the administration.

A complete contradiction of the email that said this last night.

At this point it seems that all is lost on FISA. It looks like in the process of negotiating a compromise with the Senate, the House will be forced to have an up-or-down vote on retroactive immunity. We shouldn't expect that vote to go our way.

Of course, our indefatigable FISA fighters has already come up with a Plan B.

But rather than getting mad while we watch the Fourth Amendment go up in flames, we're going to start getting even.

We've picked out some of most reactionary Democrats, and are turning it over to progressive activists like you to decide who the worst offenders are. We'll then run ads and robo-calls in their congressional districts to let their constituents know how poorly their Representative is representing their rights.

Go here to cast your vote and chip in to the effort to hold Congress accountable.

Since the final votes haven't been cast yet on FISA, hopefully we can shame some of them into righting their moral compass and voting against retroactive immunity. If not, we'll make sure that each one of their constituents knows about it.

It appears to have worked already in light of the improved news this morning and amazingly, they raised $40,000 in one day even though only a few blogs had announced the efforts.

In some ways it's difficult for me to believe we've managed to stall telecom immunity for this long but I think this development is a clear sign that the progressive blogs have not only developed a voice loud enough to be heard over the din of conventional wisdom inside the Beltway, but have also organized to the point where perhaps we instill enough fear of a backlash, that our Congresslizards are no longer willing to bank on the false premise that we will forget, or back off, if they betray us and the priniciples on which this country was founded.

This morning it looks to me, like maybe we can make this system work after all.

Stretching The Evidence To Fit

By Cernig

Eric Umansky emailed to point out his latest piece at MoJo, an examination of how the rules of evidence as commonly understood in civilized jurisprudence are being stretched all out of shape by the Bush administration as they try to secure minor terrorism convictions on chages of "aiding" terrorists.

The laws on material support provisions are far broader than commonly appreciated and the administration has used them as the basis for many of its controversial terrorism cases. It turns out you can aid terrorists in the criminal sense, and end up in jail, by just thinking. (Emphasis below is mine)

Material-support laws are not like other laws. Central to what the Department of Justice has described as an approach of "strategic overinclusiveness," they have underpinned many of the government's most controversial criminal terrorism cases, from the so-called Lackawanna Six—young men from upstate New York who trained at, and later fled from, a militant camp in Afghanistan—to José Padilla, the man once accused of being a "dirty bomber."

Indeed, look at the heavily criticized "foiled plot" cases over the past few years—the ones with an informant at the center offering encouragement and often much more—and you'll find material support charges underlying nearly all of them. Material-support statutes have been cited to deny thousands of immigrants—some on the run from actual terrorists (see file of "Kumar the Fisherman," above)—entrance into the country and are offered by the Pentagon as justification for detaining hundreds of people at Guantanamo, many of whom have provided little more "support" than being, for example, conscripted to cook for the Taliban.

There's a reason material support has become such a popular charge, a reason it's central to many of the government's most questionable cases: The laws are a prosecutor's dream. They don't require evidence of a plot or even of a desire to help terrorists. They give the government a shot at convictions traditional criminal laws could never provide. "The administration adopted the preventive paradigm, i.e. 'We've got to stop people before they've done something wrong,'" says David Cole, a Georgetown University law professor who's the author of several books about the effect of anti-terror laws on the justice system. "There's tremendous pressure to expand grounds of criminal activity, to prosecute people who might represent a threat. The material-support provisions have been the principal vehicle for pushing that envelope."

...The core concept behind the criminal material-support laws—there are two—seems, at first glance, to be straightforward. The first law, passed in 1994 after the first World Trade Center bombing, bans almost any support of terrorist activity. The second law, passed in 1996 in the wake of the Oklahoma City bombing, criminalizes knowingly giving support, financial or otherwise, to groups designated as foreign terrorist organizations, even if the money is supposedly earmarked to support peaceful activities—say, a hospital for Hamas.

Think of the laws as "aiding and abetting"—only on steroids. It has always been illegal to support criminal activity. If a man drives a getaway car for bank robbers, then he can be charged for the robbery, too. Prosecutors have simply had to show that there was an intent to further the crime and some meaningful connection between the help and the crime itself.

What the material-support laws did was roll back those requirements. A taxi driver hired for a short drive by a Hezbollah politician—a driver who had no intention of engaging in terrorist activity—would, so long as he knew the politician was with Hezbollah, be guilty of providing material support. That's because the laws that define "material support" contain a long list of often nebulous activities, such as providing "property, tangible or intangible" or "service," and are applied whether or not those activities truly helped advance the cause of a terrorist group, and regardless of the suspect's intentions. The laws make little distinction between the taxi driver and, say, an arms merchant who sells detonators to Hezbollah. The Patriot Act extended the concept further, making it illegal to attempt or conspire to provide material support. Before, prosecutors had to prove you gave support. Now they just have to show you wanted to.

That change, along with other newly exploited vagueness in the existing material-support laws, opened up a whole new path for prosecutors. In the Padilla case and others, the government has argued successfully that a suspect is guilty of attempting to provide material support even if the plot he allegedly supported was purely a government concoction or, just as curious, even if the government hadn't said what group or plot the accused might have been supporting.

Prosecutors have only had to show that the accused expressed interest in helping—as the government puts it—the "global jihad movement." "Under our system you have to show a defendant has done something specific," says Peter Margulies, a national security scholar at Roger Williams law school in Rhode Island. "These charges are really a departure from the usual way of our doing justice."

Go read the whole thing, including the case studies Eric has appended to the main piece.

Between torture, the roll-back of the centuries-old practise of universal habeas corpus and now this, America under Bush has ceased to acknowledge the universal rule of law as understood by the rest of Western civilization.

Bout Face

By Cernig

I missed this one yesterday - international arms dealer Viktor Bout has been arrested in Thailand.

The U.S. is seeking the extradition of a suspected Russian arms dealer dubbed the "Merchant of Death," but for now he will remain in Thailand, where authorities are investigating if he used the country as a base to negotiate a weapons deal with terrorists, officials said Friday.

Viktor Bout, a 41-year-old whose dealings reportedly inspired a 2005 movie about the illicit arms trade, is accused of running weapons to al-Qaida, the Taliban and parties involved in bloody conflicts across Africa. He was arrested at a Bangkok hotel after a four-month sting operation by the U.S. Drug Enforcement Administration, Thai and U.S. authorities said.

The long list of conflicts Bout has helped fuel and dictators he has armed has to be read to be believed. His customers include Afghanistan's Taliban, Anglola, Liberia, Congo, Columbia, Libya, Sierra Leone, Rawanda and of course al-Qaida. The US believes Bout's fleet of over 50 ex-Soviet military transports could transport tanks, helicopters and weapons "by the ton" to virtually any point in the world. No wonder they call him the 'Merchant of Death' and 'Man of War'.

Bout was arrested in Thailand as he was allegedly arranging a multi-milion dollar drop of sophisticated weaponry to Columbia's FARC.

Authorities in New York unsealed a criminal complaint Thursday charging that Bout conspired to sell millions of dollars in weapons - including 100 surface-to-air missiles and armor-piercing rockets - to the Revolutionary Armed Forces of Colombia, or FARC.

The U.S. considers the leftist rebels, who have been fighting Colombia's government for more than 40 years, a terror group. Bout and associate Andrew Smulian were charged with "conspiring to provide material support to a foreign terrorist organization."

The DEA was involved because, according to the criminal complaint, the FARC uses weapons to protect its cocaine trafficking business, which helps to finance its operations.

It's a bit odd, and I'm not the only one to have noticed this, because back in 2004 Bout was a sub-contractor for the Pentagon, flying supplies into Iraq. Last September I noted an interview Laura Rosen did with author Douglas Faraj, who wrote the book on Bout.

The U.S. government response to revelations of the use of Viktor Bout to fly for government contractors in Iraq (not just a few flights, but hundreds, and perhaps a thousand) has been mixed. Bear in mind most of these flights occurred after President Bush had signed an executive order making it illegal to do business with Bout, because he represented a security threat to the United States. The State Department, under a congressional inquiry initiated by Senator Russell Feingold, found it had used Bout companies, acknowledged it, and stopped. Paul Wolfowitz, while at DOD, did not respond to queries for nine months, then acknowledged that DOD contractors had subcontracted to Bout companies. Despite the public revelation, the congressional inquiry, the executive order, and a subsequent Treasury Department order freezing the assets of Bout and his closest associates, the flights continued for many months, at least until the end of 2005. The Air Force cut him off immediately, but other branches of the military continued to use him.

If he was so wanted, why did the Bush administration deal with him, in direct contravention of their own order, rather than arresting him? I find myself wondering if the U.S. wants to extradite Bout to ensure he faces justice...or if the Bush administration simply wants more control over what evidence or testimony might come up in any trial. Cynical of me, I know.

The Wire on the drug war

By Libby

This article from the writers of The Wire reinforces my desire to get the DVD and watch the whole series from the beginning someday. It makes one of the best arguments against the war on some drugs that I've seen in a long time. Read it all, it's short, but I want highlight a couple of key quotes. First on the hidden costs of prosecuting this failed 'war.'

The drug war has ravaged law enforcement too. In cities where police agencies commit the most resources to arresting their way out of their drug problems, the arrest rates for violent crime — murder, rape, aggravated assault — have declined. In Baltimore, where we set The Wire, drug arrests have skyrocketed over the past three decades, yet in that same span, arrest rates for murder have gone from 80% and 90% to half that. Lost in an unwinnable drug war, a new generation of law officers is no longer capable of investigating crime properly, having learned only to make court pay by grabbing cheap, meaningless drug arrests off the nearest corner.

This is of course in addition to the prison side of the equation where non-violent drug offenders languish in cells for years under draconian mandatory sentencing while violent criminals are let out on earlier releases to ease the crowding caused by drug war incarcerations. But I'm really impressed with their advocacy for jury nullification.

If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.

Jury nullification is American dissent, as old and as heralded as the 1735 trial of John Peter Zenger, who was acquitted of seditious libel against the royal governor of New York, and absent a government capable of repairing injustices, it is legitimate protest. If some few episodes of a television entertainment have caused others to reflect on the war zones we have created in our cities and the human beings stranded there, we ask that those people might also consider their conscience. And when the lawyers or the judge or your fellow jurors seek explanation, think for a moment on Bubbles or Bodie or Wallace. And remember that the lives being held in the balance aren't fictional.

This unfortunately is easier said than done. Judges routinely wrongly instruct the jury that they don't have this right and attempt to weed out jurors who might try to invoke it during jury selection. I recall specific instances where single jurors who managed to get seated and tried to do so have been harassed and even punished. I even remember one instance where some people handing out instructional pamphlets outside of the courthouse were arrested for interfering in court business.

The key to making this strategy work is for more people to embrace it and to advocate for change of policy in the courtroom. Where a single juror can be targeted without much notice, several jurors standing together would not be so easily dismissed. If a movement developed to at least force judges to instruct jurors on this established right, the people would gain a meaningful tool to challenge wrongheaded laws.

Kurdish Intel Chief Arrested?

By Cernig

Via Michael Rubin at NRO, of all people, comes a rumor and more than a rumor that Masrour Barzani, intelligence chief for the Iraqi Kurdish semi-autonoumous region and son of the region's president, has been arrested in Vienna on charges that he and his bodyguards assaulted and beat "a leading Kurdish critic of corruption in the Kurdistan Regional Government".

Rubin notes that Barzani the Younger hasn't been seen in public in weeks and that the Austrian press is reporting the arrest.

Nice people we're keeping as friends, eh?

Bush Vs Petraeus

By Cernig

The NYT's editorial page yet again drives home the message that Bush and his administration are not mainstream when it comes to the question of "Enhanced interrogations" - or torture, to you and me. Bush is about to veto a bill making the US Army Field Manual's provisions on torture applicable to all intelligence services. Those provisions include a blanket prohibition of torture and specific bans on:

¶ Forcing a prisoner to be naked, perform sexual acts or pose in a sexual manner.

¶ Placing hoods or sacks over the head of a prisoner, and using duct tape over the eyes.

¶ Applying beatings, electric shocks, burns or other forms of physical pain.

¶ Waterboarding.

¶ Using military working dogs.

¶ Inducing hypothermia or heat injury.

¶ Conducting mock executions.

¶ Depriving a prisoner of necessary food, water or medical care.

The NYT correctly points out that such practises are banned under international law, making their practitioners guilty of crimes against humanity and, in wartime, guilty of crimes for which the Nuremberg trials sentenced practitioners and orderers of such techniques to death. These torture techniques are also supposed to be banned under US law, under US provisions that say international treaties become binding federal law. The Bush administration have simply ignored the law or invented spurious new "designations" for detainees to try to argue that existing laws don't apply.

Maybe, as the NYT says, Bush should be listening to the many senior retired officers and officials who have urged him to rethink his veto. Or maybe he should just listen, as he has always said he would, to General David Petraeus:

“Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy,” General Petraeus wrote. “They would be wrong. Beyond the basic fact that such actions are illegal, history shows that they also are frequently neither useful nor necessary.”

The Bush administration's use of torture - which is illegal no matter who is the victim - is the one clear reason, beyond all others, why impeachment should always have been on the table. More, each and every official and lawmaker involved in condoning or legalising such high crimes should face the full force of law. If that includes Dem leaders too, then so be it. Torture is a cancer deadly to democracy and freedom and should be something that is beyond partisan politics, a clear fork in the road between liberty and totalitarianism.