Thursday, April 30, 2009
Sen. John Cornyn (R-TX) is threatening "World War III" if Democrats try to seat Al Franken (D) in the Senate before Norm Coleman (R) can pursue his case through the federal courts, Politico reports.
Cornyn, the head of the NRSC, takes this position even as he "acknowledges that a federal challenge to November's elections could take 'years; to resolve. But he's adamant that Coleman deserves that chance -- even if it means Minnesota is short a senator for the duration."
A three-judge panel is expected to rule any day now on legal challenges to the November election.
By J. Taylor Rushing
Senate Republicans are backing their beleaguered colleague in Minnesota, saying former Sen. Norm Coleman should push his election case all the way to the U.S. Supreme Court.
Coleman has been battling Democrat Al Franken since November for the seat that used to be his, but recent court decisions have moved against him in the legal battle over the recount. Franken technically has a 225-vote lead, and last week a decision gave him a stronger chance of clinging to it.
But Coleman's colleagues in the Senate say they trust him and his legal team, and are willing to support a bid to the U.S. Supreme Court if the Minnesota Supreme Court rules against him.
"I'll back Norm as far as he believes he should go," said Sen. Sam Brownback (R-Kan.). "He's there on the ground, he's the one with the best information and he's a good and honorable man. It's very hotly contested, very close, and there's a lot of questions."
"Norm is somebody I greatly respect, I think he has very good judgment, and he has a great sense of what ought to be done. It's his case and he's in the middle of it," said Sen. Bob Corker (R-Tenn.). "I know it's not damaging the party because I don't hear that. But I do think Norm is a very sensitive, thoughtful person and whatever Norm is doing I'm sure he believes is exactly the right thing to do and I support that."
Several Republicans compare the Coleman case to the Bush v. Gore decision in 2000, in which the standard of differently-counted votes came into play.
"This is about making sure every legal vote is counted, this isn't just about Norm Coleman. This is about protecting the rights of voters," said National Republican Senatorial Committee Chairman John Cornyn (R-Texas). "It's to my mind a very noble endeavor and one in which, frankly, I admire his perseverence. I support getting it right, and if that includes a federal lawsuit, then so be it. I do think there are important legal issues that don't just affect Minnesota, or affect this race. They affect elections all around the country -- a uniform standard to make sure which votes are counted, and which are not."
Moderate GOP members also say they back a U.S. Supreme Court battle if Coleman chooses.
"Whatever he says," said Sen. Olympia Snowe (R-Maine.). "So much has been committed. He's obviously invested so much in time and commitment and money -- it's staggering -- so I think it's important that either side abide by the final process by which the final decision will be rendered. It would put your mind at peace with the outcome."
Republican leadership also say they back Coleman solidly, saying they trust his lawyers' handling of the case.
"They know what to do based on their intimate knowledge of the case," said Minority Whip Jon Kyl (R-Ariz.). "I wouldn't presume to give them advice."
"The question is, 'Should every Minnesotan's vote count?' And there are are lots of votes out there that weren't counted, so the process ought to be played out until it's concluded," said Senate Republican Conference Vice Chairman John Thune (R-S.D.). "He should be able to exercise his options... There's a pretty good rationale for taking it to the U.S. Supreme Court."
Fueling the fire is the thought among many Republicans that Franken has clawed ahead in the race unfairly, by convincing courts away from counting ballots that benefited Coleman.
"It seems to me, based on what I know, that (Minnesota) courts haven't fully understood that concept," said Sen. Jeff Sessions (R-Ala.). "Therefore this might be a federal constitutional issue, that you're constitutionally required to count ballots by the same standard statewide."
"There are very important issues involved -- constitutional issues -- and I have no qualms about saying that if he can, he ought to push it all the way," said Sen. Orrin Hatch (R-Utah). "We're so sick and tired of having one set of rules for Democrats they don't abide by, and then another set of rules for Republicans. The Democrats didn't count the ballots the way they should and they didn't put the protections in that they should. It was the Republicans who were better at counting ballots and doing what was right and following the law. They don't do it on the other side as much.
"I don't think it's hurting the party. I think we all realize it's so close and there's a lot involved here and I don't think it's hurt the state, either, because it hasn't hurt them either. It's always good to have two senators, but not when one may not be entitled to the position."
The GOP's talk hasn't deterred Democratic leadership, who say they will continue to assert that Franken won the election.
"We believe the law of Minnesota requires a candidate to be certified after all the state appeals are through, whether someone applies to the federal court or not," said Democratic Conference Vice Chairman Charles Schumer (D-N.Y.).
by: Senate Guru
Sometimes birds of a feather really do flock together.
Remember what Republican Norm Coleman said immediately following Election Day 2008, when the incomplete, incorrect tally initially had Coleman up by a few hundred votes?
If you ask me what I would do [if I were in Al Franken's place], I would step back. I just think the need for the healing process is so important. The possibility of any change of this magnitude in the voting system we have is so remote, but that would be my judgment.
That was over five and a half months ago. Coleman obviously stopped thinking that the "need for the healing process" was very important a long time ago - probably right around the time that the recount put Senator-elect Al Franken in the lead.
It is important to note that, while Coleman is Hypocrite-in-Chief of the Coleman campaign, he surrounds himself with likeminded hypocrites.
One of Coleman's top lawyers, Ben Ginsberg, makes himself out to be an ardent defender of "equal protection" (as it is put forth to be one of the key tenets of Coleman's appeal).
Ginsberg reiterated the major themes of the upcoming appeal:
• The three judges allowed "illegal ballots" in the count and, by not following state election law uniformly, election officials statewide violated the "equal protection" rights of thousands of voters;
Clearly, Ginsberg is troubled by what he sees as a violation of "equal protection." But, it turns out, Ginsberg has only very recently found religion on "equal protection." It was not too long ago that he saw it as a notion with "fundamential philosophical" problems:
Just like, really, with the Voting Rights Act, Republicans have some fundamental philosophical difficulties with the whole notion of Equal Protection.
Ginsberg isn't the only making arguments he himself doesn't really believe on behalf of Norm Coleman's Hypocritical All-Stars. Vin Weber is a former Congressman from Minnesota turned Washington lobbyist, and is one of Coleman's closest friends and advisers. And Vin would do most anything for his buddy Norm, including drafting an op-ed portraying Coleman's appeal as a courageous and noble struggle for the heart of civic decency in the battle against political cynicism:
The decision by Norm Coleman to appeal the ruling by the three-judge panel in the U.S. Senate election contest ought to be viewed as a courageous step in the long-term interests of all Minnesotans. ...
Let's be clear. The issues here are not about expediency. That's not how Minnesotans view civic life. On the contrary, Minnesota is the place where we value the legitimacy of our elections and the equal opportunity of all citizens to cast a legal ballot and have it counted.
And for that fight on behalf of our constitutional rights -- and the rights of our citizens -- we should all thank Norm Coleman.
Wow, Weber must be a passionate defender of using the legal system to ensure the validity of our democratic process. Oh, wait a sec, it seems that Weber only feels that way when it's a Republican who's on the losing end of an election:
The recount mess in Florida will not turn out to be a marvelous system-reaffirming civics lesson for the country, as some commentators have said, Vin Weber told a Minneapolis audience Thursday.
"It's a civics lesson but in my view it's a bad civics lesson," he said. "It's going to increase cynicism, and it's going to teach politicians in both parties a lesson about not accepting lightly the outcome of a narrow defeat."
Hmmm, not accepting the outcome of a narrow defeat, Weber says. Maybe Coleman accidentally deleted that e-mail from Weber.
In short, the arguments that Coleman and his crew are making are arguments in which they themselves don't even believe. They're arguments against which Republicans have fought for years. But, now that it's politically convenient to embrace them, they're all aboard. They utterly lack any hint of integrity, and they represent the height of political cynicism. MN Progressive Project's Joe Bodell put it best:
here's to hoping the state Supreme Court recognizes snake oil when they smell it.
Coleman has no substance. All he and his hypocritical crew have is snake oil. I agree with Joe: here's hoping that the state Supreme Court Justices recognize it.
Remember When the GOP Called Al Gore a "Sore Loserman" in 2000? Well, Norm Coleman is the Real Thing
by Meg White
After going three months over the period it took to decide who was going to be the new president in 2000, former Sen. Norm Coleman (R-MN) still won't give up the ghost. The most recent panel of judges to whom Coleman has appealed to please, please give him back his Senate job said "no" this week. Now Coleman is promising to appeal to the state and U.S. Supreme Court, should that become necessary.
We've known for weeks that writer Al Franken would be Minnesota's new senator. We've known for approximately that same period of time that Coleman is being a total baby about conceding. But we haven't heard that most obvious electoral joke that spread across newsstands like wildfire in 2000: Sore Loserman.
Come on, people. Norm sounds like Sore. Coleman - Cole + Loser = what? Hello?
To be fair, the analogy is out there, just not to the degree it was in 2000.
Media Matters has already made the connection, noting that Al Gore and Joe Lieberman were called sore losers in the media almost 900 times, while Coleman has only been referred to with those words a handful of times. In a column criticizing the hypocrisy of the media's labeling of the two post-vote campaigns, Eric Boehlert says the media is allowing the Coleman camp to drag this out longer without worrying about the consequences:
As Coleman and his attorneys look over their recount legal options, they in no way have to be concerned about or factor into play the potential "sore loser" meme that could do real damage to his effort. They can play hardball with impunity because they're getting a free pass from the press...
...But imagine if the roles were reversed and Franken, the Democrat and former comedian (the press loves to stress that fact), had pulled a last-minute, let's-change-the-rules stunt while his attorneys plotted out even more long-shot legal appeals. I suspect that not only would the story have been thoroughly chewed over by Beltway scribes, but the media disdain would have been unmistakable and unvarnished.
Just ask Al Gore. In 2000, during the contentious recount process in Florida, the press made it abundantly plain that Gore not only faced an uphill battle winning the recount, but that he ran the risk of being dubbed a sore loser, a risk that had to weigh heavily into his recount strategy. The legal action surrounding Florida lasted just five weeks -- compared with the almost 20 weeks already taken up by the Minnesota wrangling -- but the "sore loser" meme was everywhere.
Journalists do have an important role in reporting post-election antics, but it's not to give out nicknames (that's what pundits such as us do!). So I can't say I'm terribly upset the media isn't calling Norm Coleman a Sore Loserman (even though he is). I'm more upset about all the other stuff they're neglecting to talk about honestly in this electoral mess.
To his credit, Boehlert comes down hard on the Beltway media for not pointing out the ridiculousness of Coleman's request for a revote. But there's other stuff missing, too.
It would be great if we could hear a bigger uproar over what this is really about: the 59th Democratic vote in the Senate. Many Republican senators have been totally upfront about imploring Coleman to stall as long as possible to make vote-getting more difficult for the majority. If the situation were reversed, I bet we'd hear a lot more about Democrats preventing Minnesotans from full representation in clear violation of the Constitution, as well as their blocking the Republican agenda in a time of serious fiscal crisis.
Or, hey: How about talking about the way the Republicans run roughshod over states' rights only when it might net them greater representation in Washington? Instead of reporting on state law and precedent, which clearly indicates that the Minnesota Supreme Court has final say in the matter, the national media is all worked up about Coleman's supposed date with the nation's favorite judicial ennead.
Yeah, I realize it's a lot easier to refer to Democrats as losers, and I'm not looking for an apology for the media's behavior in 2000. What I'm saying here is that, if the media is not going to apply the "whining little baby" image to political also-rans of each stripe equally, the least they could do is report on the facts of the case. And the fact here is that the GOP is openly manipulating Coleman who's clearly manipulating the judiciary.
What a loser.
Original Link: http://bleedingheartland.com/diary/2674/sore-loser-coleman-has-done-lasting-harm-to-minnesota
For at least the last three months, Norm Coleman has had no realistic hope of winning Minnesota's U.S. Senate election, but that hasn't stopped him from fighting the inevitable in court. It's obvious that Coleman's legal maneuvering has no goal other than to keep Al Franken out of the Senate for as long as possible.
That has collateral benefits for Republicans on a national scale, making it harder for Senate Democrats to win 60 votes to break a filibuster. Barack Obama may have been able to get his economic stimulus bill through the Senate with fewer concessions if he had needed only two Republicans to sign on (instead of three).
Unfortunately for our neighbors to the north, Coleman's obstruction has done significant and lasting harm to Minnesota. John Deeth explains why in this great post about seniority rules in the U.S. Senate. Had Franken been sworn in with the rest of the class elected last November, he would now rank 94th in seniority, but instead he's going to rank 100th (click the link for the full explanation, which is worth your time).
Making matters worse for Minnesota: all six of the senators Franken should outrank, but doesn't, are fellow Democrats.
How much this matters in the long run depends on the longevity of the six senators who leapfrogged over Franken. [...]
Michael Bennet and Kirsten Gillibrand will probably face primaries, too, but after a first electoral test they, and Merkley and Begich, could last awhile (particularly Gillibrand, who at 42 is the youngest Senator). Franken, at age 57, could be around long enough that those lost months of seniority will make a difference between him and let's say Gillibrand getting a chairmanship sometime around 2018.
If you want to make Republicans pay for Coleman's sore-loserdom, support the campaign Senate Guru wrote about over the weekend: "A Dollar a Day to Make Norm Go Away."
Former U.S. Senator from Minnesota Norm Coleman is a sore loser who will not be returning to Congress.
First they counted the votes. Then they recounted them. Then they painstakingly went over every disputed ballot by hand. It was the most thorough and exhaustive recount process Minnesota has ever seen.
Then, the bipartisan canvassing board declared Al Franken the winner of the U.S. Senate race in Minnesota.
But Norm Coleman didn't like that result, so he took it to court. And now when even his own lawyers are predicting he'll lose, Coleman's threatening to keep appealing to more and more courts.
How many more recounts does Norm Coleman want? How many more delays? How much longer will the Republican Party hold Minnesota's Senate seat hostage?
Coleman can end it today and give Minnesota the two Senators it's entitled to. But he's not going to give up unless we convince him to act. So let's speak with one voice and tell Norm Coleman it's time to go.
Tell Norm Coleman to pack it in, give up the endless court battles, and concede the race so Minnesota has its full representation in Congress.
On election night, Norm had a small lead. He said then that if he were behind, he wouldn't bother with a recount. "I would step back," he claimed. "I just think the need for the healing process is so important."
But the moment he fell behind is the moment he stopped caring about the "healing process." Al Franken came out ahead after a bipartisan recount that took place in front of live cameras, and Norm decided the best place to nurse his wounds was in court.
And that's where this election has been stuck ever since, as Coleman's legal team brings one obscure challenge after another. Norm Coleman is a liar who doesn't deserve to return to the U.S. Senate. But more important than that, Norm Coleman is a loser who WON'T be returning to the U.S. Senate.
For God's sake, enough is enough. The people of Minnesota need their fair share of representation in Congress now, and President Obama needs Al Franken working with him in the Senate. We're debating the very survival of our economy, and Minnesotans deserve a voice!
So let's tell him nicely. Let's remind him that all the legal experts say he's done. Let's ask him not to drag this out just for the sake of dragging it out.
Let's speak with one voice and tell Norm Coleman to drop the legal challenges and concede this race!
by Mark Nickolas
Two new Minnesota polls reveal that its state's voters want former Sen. Norm Coleman (R-MN) to concede his narrow loss to Al Franken (D), believe the election was fully fair, don't approve of his continued legal appeals, and want to be fully represented in the U.S. Senate:
Star Tribune Minnesota Poll:
Nearly two-thirds of Minnesotans surveyed think Norm Coleman should concede the U.S. Senate race to Al Franken, but just as many believe the voting system that gave the state its longest running election contest needs improvement.
A new Star Tribune Minnesota Poll has found that 64 percent of those responding believe Coleman, the Republican, should accept the recount trial court's April 13 verdict that Democrat Franken won the race by 312 votes.
Only 28 percent consider last week's appeal by Coleman to the Minnesota Supreme Court "appropriate."
Grove Insight Research:
A new poll from Grove Insight Research shows that Minnesota voters want Norm Coleman to concede and Gov. Pawlenty to sign the election certificate that will allow Al Franken to be seated -- finally -- in the U.S. Senate.
The poll, commissioned by Alliance for a Better Minnesota, showed that 59% of surveyed voters believe Coleman should concede to Al Franken, while just 34% believe he should keep his legal challenge going. Those numbers fit with the 61% who believe the recount and challenge process has been fair and impartial, against just 24% -- the true dead-end of the conservative rump -- who still question the process.
54% now believe that Franken won in November fair and square, while just 26% believe Coleman actually won.
Meanwhile, the Minnesota Supreme Court has set oral arguments in Coleman's appeal for June 1.
By Deborah White
Former Sen. Norm Coleman is rapidly becoming the poster child for one of the great ailments of the United States: self-absorbed pursuit of one's "rights," coupled with complete disregard for one's responsibilities.
And as added damage to Republicans, five long months after Minnesota's senatorial election, Coleman is intentionally obstructing democracy for the sake of short-term partisan politics in his continued drive to overturn election results.
Basics about Franken vs. Coleman Senate Race
Here are the basic facts about Minnesota's November 4, 2008 senatorial election:
Nov 18, 2008 - Official vote tally had one-term incumbent Coleman winning over Democrat Al Franken by 215 votes out of 2.4 million cast for the two of them, well under the .5% margin that triggers a mandatory recount, per state law.
Jan 5, 2009 - After a hand recount and resolution of thousands of ballot challenges, the Minnesota Canvassing Board, comprised of four judges, certified that Franken won the election over Coleman by 225 votes.
Jan 6, 2009 - Coleman filed suit in district court, contesting the election results due to ballot counting irregularities of absentee ballots.
April 13, 2009 - A three-judge panel appointed by the Minnesota Supreme Court examined the allegations, and allowed many of the absentee ballots in question to be counted, resulting in Democrat Franken gaining 87 more votes over Republican Coleman, for a margin of 312 votes.
The judges dismissed Coleman's suit and ordered Coleman to pay Franken's legal fees. Thus, Al Franken became the victor in the disputed election.
New Coleman Appeals Could Take "Years"
"Republican Norm Coleman said he will appeal Democrat Al Franken's court victory in the U.S. Senate race next week," per today's Minneapolis Star-Tribune.
Although Coleman has the legal right to appeal the decision to the Minnesota Supreme Court (which is populated with appointees by the Republican governor), almost no one expects him to prevail over Franken. If Coleman loses that appeal, he likely will petition to have his claim heard by the U.S. Supreme Court, where nobody expects him to prevail.
The point isn't that Coleman reasonably expects, anymore, to be reseated as U.S. senator from Minnesota. The point is to keep Al Franken from being seated. (See Profile of Senator-Elect Al Franken of Minnesota .)
Republican Goal Is to Not Seat an Elected Democrat
Conservative Sen. Tom Coburn (R-OK) recently crowed, "Every day in the Senate without Al Franken is a great day!" Reports City Pages about Sen. John Cornyn of Texas, "Cornyn, the chairman of the National Republican Senatorial Committee, acknowledges that a federal challenge to November's elections could take 'years' to resolve."
Every day that Republicans keep Franken from being seated is one more day that Democrats are short that one crucial vote to pass legislation in support of President Obama's agenda. Eric Boehlert of Media Matters explains:
"Republicans can claim a kind of strategic victory by blocking the Democratic former comedian's path to the Senate, which requires 60 votes to pass controversial items."
Meanwhile, Minnesotans have one less U.S. senator than any other state. They have 50% less influence over Senate matters and business, and they have 50% less D.C. power to resolve problems and issues for citizens.
Minnesota's other U.S. senator, Democrat Amy Klobuchar, fired back at Sen. Cornyn on MSNBC, "... he said that we could go in Minnesota with one senator for years. And I would love to know how Texas would like that."
Minnesotans Voice Anger, Call Coleman a "Loser"
Minnesotans are understandably angered over the prolonged brouhaha, and anxious to get the whole mess resolved.
Sure, former Sen. Coleman has a legal right to continue his challenges ad naseum, no matter how unlikely he is to prevail.
But what about Coleman's responsibilities to the people of Minnesota? What about Coleman's responsibility to support U.S. democracy? What about Coleman's moral responsibility to model fairness and integrity as an American leader?
As a last word, take a glance at a sampling of pithy Minnesotan thought on Norm Coleman's decision to continue to deny a second senator to residents of the North Star State:
From the Minneapolis Star-Tribune on April 16, 2009:
From Mpls1989 - "Give it up norm you're a sore loser! You got something Al Gore never got and that was a hand recount of every ballot with the option of challenging them...PLUS you got to appeal that."
From logician88 - "Hey conservatives -- I haven't heard any of those 'sore loser' jokes that you thought were SO funny for years after Bush vs. Gore recently! I thought you guys always accepted the outcome of elections without question? What a bunch of hypocrites you are."
From ssn764 - "He didn't just lose his case in the election contest (the recount being over long ago), his case was dismissed for lack of merit. What the judges were saying was, 'Your case is a big nothing'. How is that not a delaying tactic?"
From fchatter - "Norm lost Minnesota with his support of Bush's War. Had he stood up for what Minnesotan's wanted instead of the warlords in Washington he would still be our Senator. His arrogance was showing then and it is showing now."
From brubu - "Why did Norm first reject these absentee ballots during the recount? Was he against the ballots before he was for the ballots? What job has the RNC offered him if he continues to delay?"
From Holmeystl - "Now it will be up to your governor to either sign the certificate, or to wait for the courts to decide the outcome.
"If Pawlenty is indeed considering a run for the presidency in the future he *must* show that he is a person who can work with both parties. Denying the certificate to the elected senator shows a 'bad side' to a public that wants bi-partisianship."
By Eric Boehlert
Any day now, a three-judge panel in Minnesota will rule on Norm Coleman's lawsuit to overturn the results of the state's Senate election recount, which was completed in January. The complete hand recount concluded that the incumbent Republican lost to challenger Al Franken by 225 votes. Coleman demanded a full court case; today, almost nobody, including Coleman's own attorney, thinks the Republican will prevail in the judges' upcoming ruling, which follows a tedious seven-week trial.
End of story, and after a drawn-out, 18-week process, Franken will finally be seated in the U.S. Senate, right? Wrong. If Franken prevails as expected before the three-judge panel, Coleman will then have 10 days to file yet another appeal, this one to the Minnesota Supreme Court. If Coleman loses there as well, Republican leaders in Congress are encouraging him to not give up his legal challenge and take his case all the way to the U.S. Supreme Court, which could create a scenario in which the Minnesota election might not get decided until the fall -- almost a year after voters went to the polls -- even if the Supreme Court refuses to hear the appeal.
As we discovered in Florida back in 2000, the U.S. election system is hardly perfect. And when contests are extraordinarily close and invite unprecedented scrutiny, questions always arise. But states do their best to ensure accuracy, and in the end, even in ridiculously narrow contests, a winner has to be declared and the loser has to accept defeat.
Except, apparently, in Minnesota, where Coleman has adopted the rather unique strategy of litigating his case indefinitely, thereby preventing Democrats from seating their 59th member in the Senate, where 60 votes are needed to cut off filibusters. Meaning, the battle for Franken's seat not only remains a news curiosity, but in terms of politics and power, it's a very big deal and has attracted nationwide press attention.
Coleman, of course, has the right to appeal his case, just as other suspicious second-place candidates have done in the past. What seems to be unique is this case, though, is how so much of the press coverage has politely refrained from suggesting that Coleman's a sore loser for adopting his marathon litigation approach.
Traditionally, candidates who lost and cried foul had a rather short window to prove their case before the media lost patience and started calling the candidate out as petulant and self-involved. Just ask Al Gore, who was hounded in the press by the specter of the "sore loser" label practically from the moment he withdrew his concession in the early morning hours following Election Day. I doubt a day went by during the Florida recount when there wasn't a "sore loser" reference to Gore in the press. (In Nexis, I found nearly 900 "sore loser" press mentions in Gore articles between November and December 2000.)
For some reason, Coleman has been able to mostly avoid the dreaded "sore loser" label, one that can be a career-killer for any politician. Instead, the press has largely given Coleman and his Republican supporters an open canvas on which to operate. (A Nexis search finds just a handful of "sore loser" media mentions regarding Coleman since November.) As Coleman and his attorneys look over their recount legal options, they in no way have to be concerned about or factor into play the potential "sore loser" meme that could do real damage to his effort. They can play hardball with impunity because they're getting a free pass from the press.
The strange part is that Coleman's getting that press pass even though some members of the Republican Party have been brazenly open in discussing the Minnesota case in terms of a blatant stall campaign specifically designed to thwart Democrats from securing the critical 59th seat in the U.S. Senate. (A quirk in Minnesota election law means Franken, the state's winner to date, cannot be seated in the Senate while Coleman's appeals process plays out in Minnesota courts.)
"The battle in Washington is real. Every day in the Senate without Al Franken is a great day," Sen. Tom Coburn (R-OK) recently told a Tulsa audience. Politico reported that Republicans back the idea of Coleman appealing his case indefinitely because "a long fight is worth it if it keeps Franken from becoming the 59th Senate Democrat, which would give President Barack Obama a huge advantage over the next two years."
Even when Republicans cast the litigation marathon as a way to simply freeze out Franken, the press and its army of commentators remain distant, reluctant to cast aspersions on Coleman's rope-a-dope campaign. In fact, a recent Wall Street Journal article on the delays ("Minnesota Senate Standoff Plays Into GOP's Hands") seemed to tip its hat to Republicans for so effectively stymieing Democrats [emphasis added]:
Four months after Election Day, the fight over Minnesota's U.S. Senate seat drags on with no clear end in sight. And that may be working to the Republicans' advantage. Party leaders say they are digging in for a prolonged legal process, keeping Democrats from claiming a seat they think is theirs -- and hampering the majority party's ability to push through its agenda.
But Republicans can claim a kind of strategic victory by blocking the Democratic former comedian's path to the Senate, which requires 60 votes to pass controversial items.
Only in the article's final paragraph did the Journal even hint that Coleman's marathon appeal process might -- just might -- have a political downside.
I think the free pass from the press has emboldened the Minnesota Republican and his army of attorneys in recent weeks. It's emboldened them precisely because there seems to be nothing they can do that will spark a "sore loser" backlash. For instance, earlier this month, Coleman's lawyers, after suffering a number of courtroom setbacks, wrote to the three-judge panel asking it to take the extraordinary step of setting aside the November vote and basically having the state, four months after the fact, revote. Claiming it would be impossible for the judges to pick a winner, Coleman's legal team suddenly wanted to start from scratch.
The ploy was a stunner and may have redefined election season chutzpah: It would have been like Gore's attorneys suddenly asking for a complete Florida revote amidst their oral arguments to the U.S. Supreme Court.
"[Y]owza!" Twittered ABC's Jake Tapper when reading the Coleman news. But interestingly, the Coleman call for a revote received very little attention (i.e. actual press coverage) inside the Beltway, and very few in the press treated the request as unusual, let alone borderline bizarre.
For the three days following Coleman's jaw-dropping request, the news received no coverage in The New York Times, The Washington Post, the Los Angeles Times, or USA Today. Coleman's request was all the more amazing considering there is there no mechanism or precedent under Minnesota law to allow for such an event. (Only the U.S. Senate could approve a total revote for Minnesota.)
The Hail Mary received zero network television news coverage and garnered just a passing reference on cable news, which came on MSNBC's Hardball. (At least that was the only cable reference found on Nexis; not every cable show's transcripts are archived there.) Even more incredibly, while discussing Coleman's extraordinary do-over request, the Hardball guests focused on Franken's reportedly low approval ratings among Minnesota voters. In other words, they wondered how Coleman's drawn-out election lawsuit was hurting Franken's reputation.
But imagine if the roles were reversed and Franken, the Democrat and former comedian (the press loves to stress that fact), had pulled a last-minute, let's-change-the-rules stunt while his attorneys plotted out even more long-shot legal appeals. I suspect that not only would the story have been thoroughly chewed over by Beltway scribes, but the media disdain would have been unmistakable and unvarnished.
Just ask Al Gore. In 2000, during the contentious recount process in Florida, the press made it abundantly plain that Gore not only faced an uphill battle winning the recount, but that he ran the risk of being dubbed a sore loser, a risk that had to weigh heavily into his recount strategy. The legal action surrounding Florida lasted just five weeks -- compared with the almost 20 weeks already taken up by the Minnesota wrangling -- but the "sore loser" meme was everywhere:
"By energetically pressing that point, Republicans said they hoped to convey that Mr. Bush's ascent to the White House was inevitable -- and that sore losers in the vice president's camp were trying to steal the election from him." [The New York Times, 11/9/2000]
"Mr. Bush's advisers accused the Gore campaign of playing fast and loose with the facts of the disputed vote in Florida, and they came to a news conference here armed with voter registration statistics, visual aids and pointed implications that Vice President Al Gore and his allies were acting like sore losers." [The New York Times, 11/10/2000]
"In announcing that they would contest election results in Miami-Dade County (and perhaps elsewhere) in court, as allowed under Florida law, Mr. Gore's lawyers risked making Mr. Gore look, at least in legal terms, like the one thing he had struggled for days not to be seen as: a sore loser." [The New York Times, 11/24/2000]
" In blunt, often brutal language reminiscent of the rhetoric aimed at President Clinton during his impeachment and trial, Gore is portrayed as a win-at-any-cost sore loser with a penchant for lying and a death wish for his party." [The Washington Post, 11/30/2000]
"Republicans are already undertaking a public relations counteroffensive that will portray Gore as the ultimate sore loser." [The Washington Post, 11/27/2000]
"But the official said the manual recounts must show a steady, even if slow, net gain in newfound votes for Gore. Otherwise, momentum will fade and Gore's continued legal battles will seem the desperate grasps of a sore loser." [The Washington Post, 11/17/2000]
And that was just a portion of the Times and Post news coverage. Everywhere Gore turned in late 2000, the press was warning him about the dangers of becoming (or being seen as) a sore loser. Either that, or the press was constantly reminding the public about how Republicans wanted to portray the Democrat. (Via the press, of course.)
Yet in all of their Coleman coverage since Election Day, neither the Post nor the Times has ever published the phrase "sore loser" in connection to the endless Minnesota litigation. And that's been the media rule in print and television. It's simply not something that Coleman or Republicans have to concern themselves with, which in turn provides them with enormous wiggle room for upcoming appeals.
If Coleman soon suffers yet another recount loss and appeals to the Minnesota Supreme Court, will the press finally dip its toe into the sore loser pool? What if Coleman loses at the Minnesota Supreme Court in April or May and then appeals to the U.S. Supreme Court, which could then tie up the Senate seat into next year? Will the press then suggest Coleman and Republicans are sore losers?
Is there any point along Coleman's unprecedented litigious path at which the press will apply the same standard to a Republican that it applied to a Democrat?
The junior senator from Minnesota is Al Franken! All the legal ballots have been counted, against Coleman’s will, dragging, screaming and whining. We know the Republicans do not like one man, one vote. Remember Florida in 2000, never forget Florida 2000. When they lose a close election, they by a Tourette’s syndrome tick, yell “stolen”. He promises to sue, sue, sue. At least John McCain took it like a man. Unfortunately, Gore and Kerry allowed themselves to let stand real thefts. The US Supreme Court intervened, by extra constitutional means, to stop vote counting. Michal Connell fixed the computers. Coleman does not have those weapons in his arsenal. He just obstructs. He has two additional partners in defying the mandate of the populace: Mitch McConnell and John Cornyn, whom seem willing to obstruct in the senate. So, add 3 to the list of despicables:
Who, by the way, were the three senators that have received the most $ from the finance, insurance and real estate interests. Now who did they represent?
Back to Norm, this is the typical Republican hypocrite. When the vote was incomplete, and he was in the lead, he told Franken to pack it in and save Minnesota citizens time and money, he would if it was on him. His party makes a big issue, about lawyers and frivolous lawsuits, to gain votes. Now those lawsuits are often when the little guy suffers, and or dies, at the negligence or malevolence of a powerful business interest. Well, his words do not apply to himself, and he will need further lawyers in the FBI’s investigation concerning his shenanigans.
Does his party, tell him to drop it? No. Republicans will avoid battle as servicemen, but not in politics. They show little interest in behaving well. They do not want to relinquish any ground, even if stolen. It is sad the Democracy does not fight so tenaciously.
Sunday, April 26, 2009
By Robert Parry
Captured al-Qaeda operatives, facing the threat or reality of torture, appear to have fed the Bush administration’s obsession about Iraq, buying Osama bin Laden and other terrorist leaders time to rebuild their organization inside nuclear-armed Pakistan.
Even now, as al-Qaeda and its Taliban allies expand their power ever closer to Pakistan’s capital of Islamabad, ex-Bush administration officials continue to insist they protected U.S. security by repeatedly waterboarding the likes of 9/11 plotter Khalid Sheikh Mohammed and terrifying others, such as Ibn al-Shaykh al-Libi, with “extraordinary renditions” to foreign countries known to torture.
However, the emerging evidence, including recently released Justice Department memos, suggests that the “high-value detainees” may have helped divert U.S. focus away from their al-Qaeda colleagues by providing tantalizing misinformation about Saddam Hussein’s Iraq and dropping tidbits about Jordanian terrorist Abu Musab al-Zarqawi, who operated inside Iraq.
The May 30, 2005, memo by Steven Bradbury, then acting head of the Justice Department’s Office of Legal Counsel, also appears to have exaggerated the value of intelligence extracted from detainee Abu Zubaydah through harsh interrogations – references that Bush administration defenders have cited as justification for abusive tactics, including the near-drowning of waterboarding.
The May 30 memo states: “Interrogations of Zubaydah – again, once enhanced techniques were employed – furnished detailed information regarding al Qaeda’s ‘organizational structure, key operatives, and modus operandi’ and identified KSM [Khalid Sheikh Mohammed] as the mastermind of the September 11 attacks. …
“You [CIA officials] have informed us that Zubaydah also ‘provided significant information on two operatives, [including] Jose Padilla [,] who planned to build and detonate a ‘dirty bomb’ in Washington DC area.”
However, that last claim conflicts with known evidence about Zubaydah’s interrogations and with the time elements of Padilla’s arrest. Zubaydah was captured on March 28, 2002, after a gunfight that left him wounded. Padilla, an American citizen who converted to Islam, was arrested on May 8, 2002.
Yet, Bush administration lawyers did not give clearance for the “enhanced interrogation techniques” until late July, verbally, and on Aug. 1, 2002, in writing.
In addition, Zubaydah’s information about Padilla and KSM was provided to FBI interrogators who had employed rapport-building techniques with Zubaydah, not the harsh tactics that CIA interrogators insisted upon later, according to published accounts.
For instance, author Jane Mayer in her book The Dark Side writes that the two FBI agents, Ali Soufan and Steve Gaudin, “sent back early cables describing Zubayda as revealing inside details of the [9/11] attacks on New York and Washington, including the nickname of its central planner, ‘Mukhtar,’ who was identified as Khalid Sheikh Mohammad. …
“During this period, Zubayda also described an Al Qaeda associate whose physical description matched that of Jose Padilla. The information led to the arrest of the slow-witted American gang member in May 2002, at O’Hare International Airport in Chicago. …
“Abu Zubayda disclosed Padilla’s role accidentally, apparently. While making small talk, he described an Al Qaeda associate he said had just visited the U.S. embassy in Pakistan. That scrap was enough for authorities to find and arrest Padilla.
"These early revelations were greeted with excitement by [CIA Director George] Tenet, until he was told they were extracted not by his officers but by the rival team at the FBI.”
Soon, a CIA team arrived at the secret CIA detention center in Thailand where Zubaydah was being held and took command, adopting more aggressive interrogations tactics. However, the Bush administration did not approve the full battery of harsh tactics, including waterboarding, until mid-summer 2002.
Mayer's account was backed up Thursday by one of the FBI agents, Ali Soufan, who broke his long silence on the topic in an op-ed in the New York Times, citing Zubaydah's cooperation in providing information about Padilla and KSM before the CIA began the harsh tactics.
"It is inaccurate ... to say that Abu Zubaydah had been uncooperative," Soufan wrote. "Under traditional interrogation methods, he provided us with important actionable intelligence." [NYT, April 23, 2009]
Nevertheless, Bush administration defenders cite the information wrested from Zubaydah -- who was waterboarded at least 83 times in August 2002.-- as justification for the interrogation tactics that have been widely denounced as torture. For instance, former Bush speechwriter Marc Thiessen has credited the CIA’s harsh interrogation techniques for the arrest of Padilla.
Thiessen also was given space in the Washington Post’s neoconservative editorial section to cite a claim in the May 30 memo that “in particular, the CIA believes that it would have been unable to obtain critical information from numerous detainees, including [Khalid Sheik Mohammed] and Abu Zubaydah, without these enhanced techniques.” (KSM was waterboarded 183 times after his capture in March 2003.)
Thiessen also said the harsh tactics extracted information from Zubaydah and KSM about Zarqawi’s operation in Iraq that “helped our operations against al-Qaeda in that country.”
However, the timetable again works against these assertions by the CIA and Bush apologists. Zubaydah was captured in March 2002 at a time when Zarqawi was an obscure terrorist holed up in a section of Iraq protected by the U.S.-British no-fly zone, which prevented Saddam Hussein’s military from attacking Zarqawi’s stronghold.
KSM was captured on March 1, 2003, 18 days before President Bush launched the U.S.-led invasion of Iraq. It was not until after the invasion had given way to a U.S. occupation that Zarqawi tapped into a wellspring of anti-Americanism throughout the Middle East and began recruiting young jihadists from across the region to mount suicide and other attacks against U.S. forces.
Zarqawi also built alliances with disgruntled Sunnis as the insurgency grew.
Whatever information Zubaydah and KSM might have provided about Zarqawi would have been dated and – to the degree they built up his importance – could have played into President Bush’s desire to view the Iraq War as "the central front in the war on terror.”
The problem of false intelligence had already been demonstrated by the handling of another al-Qaeda captive, Ibn al-Shaykh al-Libi, who had responded to threats of torture by claiming an operational link between Hussein’s government and al-Qaeda. It was exactly the kind of information that the Bush administration had been seeking.
A June 2002 CIA report, which was dubbed the “Murky” paper, cited claims by al-Libi that Iraq had “provided” unspecified chemical and biological weapons training for two al-Qaeda operatives. Al-Libi’s information also was inserted into a November 2002 National Intelligence Estimate.
In January 2003, another CIA paper expanded on al-Libi’s claims of an Iraqi-al-Qaeda connection, saying that “Iraq – acting on the request of al-Qa’ida militant Abu Abdullah, who was Muhammad Atif’s emissary – agreed to provide unspecified chemical or biological weapons training for two al-Qa’ida associates beginning in December 2000.”
By Feb. 11, 2003, as the countdown to the U.S. invasion progressed, CIA Director Tenet began treating al-Libi’s assertions as fact. At a Senate Intelligence Committee hearing, Tenet said Iraq “has also provided training in poisons and gases to two al-Qa’ida associates. One of these associates characterized the relationship he forged with Iraqi officials as successful.”
But the CIA’s confidence about al-Libi’s information went against the suspicions voiced by the Defense Intelligence Agency. “He lacks specific details” about the supposed training, the DIA observed. “It is possible he does not know any further details; it is more likely this individual is intentionally misleading the debriefers.”
The DIA’s doubts proved prescient. In January 2004, al-Libi recanted his statements and claimed that he had lied because of both actual and anticipated abuse, including threats that he would be sent to an intelligence service where he expected to be tortured.
Al-Libi said he fabricated “all information regarding al-Qa’ida’s sending representatives to Iraq to try to obtain WMD assistance,” according to a Feb. 4, 2004, CIA operational cable. “Once al-Libi started fabricating information, [he claimed] his treatment improved and he experienced no further physical pressures from the Americans.”
Despite his cooperation, al-Libi said he was transferred to another country that subjected him to beatings and confinement in a “small box” for about 17 hours. He said he then made up another story about three al-Qaeda operatives going to Iraq “to learn about nuclear weapons.” Afterwards, he said his treatment improved.
In September 2006, the Senate Intelligence Committee criticized the CIA for accepting al-Libi’s claims as credible. “No postwar information has been found that indicates CBW training occurred and the detainee who provided the key prewar reporting about this training recanted his claims after the war,” the committee report said.
The Senate Intelligence Committee skirted making a conclusion about how al-Libi’s statements were extracted. But the al-Libi case demonstrated one of the practical risks of coercing a witness to talk. To avoid pain, people often make stuff up.
Though al-Libi’s motivation appeared to be simply his desperation to avoid more pain, there is also the risk that al-Qaeda operatives intentionally “surrendered” intelligence that was designed to divert U.S. attentions away from the crucial terrorist base camps and safe houses along the Afghan-Pakistani border and toward Iraq.
In that sense, the interests of Bush’s neocon foreign policy team and al-Qaeda were symbiotic. The Bush administration was determined to force regime change in Iraq while al-Qaeda was desperate for a respite from U.S. and NATO assaults in late 2001 and 2002. So, diverting U.S. military and intelligence resources toward Iraq bought al-Qaeda leaders valuable time.
As the U.S. military got bogged down in the Iraq War, al-Qaeda and its Taliban allies strengthened their safe havens inside Pakistan and began expanding their areas of control, threatening to destabilize the fragile government of Pakistan, the only Islamic country that has a nuclear bomb.
There has been other evidence that al-Qaeda’s leaders understood the value of tying down the U.S. military in an open-ended war in Iraq, so they could reorganize and emerge as a more deadly threat in the future, especially if Pakistan’s nuclear arsenal falls into their hands.
Osama bin Laden even intervened in Election 2004 by releasing a rare videotape on Oct. 29, 2004, railing against President Bush. Bush’s supporters immediately dubbed the video tape “Osama’s endorsement of John Kerry.”
But inside the CIA, analysts concluded that the video was intended as a backdoor way to help Bush gain a second term, according to Ron Suskind’s The One Percent Doctrine, which draws heavily from CIA insiders.
According to Suskind’s book, CIA analysts had spent years “parsing each expressed word of the al-Qaeda leader and his deputy, [Ayman] Zawahiri. What they’d learned over nearly a decade is that bin Laden speaks only for strategic reasons. …
“Their [the CIA’s] assessments, at day’s end, are a distillate of the kind of secret, internal conversations that the American public [was] not sanctioned to hear: strategic analysis. Today’s conclusion: bin Laden’s message was clearly designed to assist the President’s reelection.
“At the five o’clock meeting, [Deputy CIA Director] John McLaughlin opened the issue with the consensus view: ‘Bin Laden certainly did a nice favor today for the President.’”
McLaughlin’s comment drew nods from CIA officers at the table. The CIA analysts felt that bin Laden might have recognized how Bush’s policies – including the Guantanamo prison camp, the Abu Ghraib scandal and the endless bloodshed in Iraq – were serving al-Qaeda’s strategic goals for recruiting a new generation of jihadists.
“Certainly,” CIA’s deputy associate director for intelligence Jami Miscik said, “he would want Bush to keep doing what he’s doing for a few more years,” according to Suskind’s account.
As their internal assessment sank in, the CIA analysts drifted into silence, troubled by the implications of their own conclusions. “An ocean of hard truths before them – such as what did it say about U.S. policies that bin Laden would want Bush reelected – remained untouched,” Suskind wrote.
One consequence of bin Laden breaking nearly a year of silence to issue the videotape the weekend before the U.S. presidential election was to give the Bush campaign a much needed boost. From a virtual dead heat, Bush opened up a six-point lead, according to one poll.
Bush himself said later he considered the bin Laden tape an important turning point in the election. [For details, see our book, Neck Deep.]
Prolonging the War
Al-Qaeda’s strategic interest in bogging the United States down in Iraq also was disclosed in a late 2005 letter to Zarqawi from a top aide to bin Laden known as “Atiyah,” who upbraided Zarqawi for his reckless, hasty actions inside Iraq.
The message from Atiyah, who is believed to be a Libyan named Atiyah Abd al-Rahman, emphasized the need for Zarqawi to operate more deliberately in order to build political strength and drag out the U.S. occupation. “Prolonging the war is in our interest,” Atiyah told Zarqawi.
[To view this excerpt in a translation published by the Combating Terrorism Center at West Point, click here. To read the entire letter, click here. ]
Besides the value that al-Qaeda saw in dragging out the Iraq War, the harsh interrogations also had severe consequences for American troops.
As former Navy general counsel Alberto Mora told the Senate Armed Services Committee in June 2008, “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantanamo.”
Zarqawi was killed in June 2006, but only after a new team of military intelligence interrogators arrived in Iraq and rejected the brutal interrogation strategies that had survived the Abu Ghraib scandal two years earlier.
Instead, the team employed FBI-style "rapport-building" techniques and won the confidence of captured Sunni insurgents who gave up Zarqawi's location, which was destroyed by a U.S. aerial attack. [For details, see Washington Post, Nov. 30, 2008, or Consortiumnews.com's "Connecting CIA Torture to Abu Ghraib."]
So, the “enhanced interrogations techniques” may have had two deadly consequences: eliciting misinformation that helped lead the United States into the quicksand of Iraq (while al-Qaeda and its Islamic fundamentalist allies strengthened their position in nuclear-armed Pakistan) and contributing significantly to the deaths of more than 4,200 American soldiers in Iraq.
By Robert Parry
By blurring the lines between terrorism and combat – and by linking the 9/11 rationale to groups only tangentially connected to al-Qaeda – the Bush administration spread the policy of harsh interrogations far beyond terror suspects who worked directly for Osama bin Laden, newly released Justice Department memos reveal.
Most significantly, the Bush administration let the interrogation policy spill over into U.S.-occupied Iraq, where ambushes of American and allied troops were regarded as the legal and moral equivalent of terrorist attacks against civilians on U.S. soil, one of the memos, dated May 30, 2005, makes clear. That belief, in turn, appears to have set the stage for the Abu Ghaib prison abuse scandal.
The memo – written by Steven Bradbury, then acting head of the Justice Department’s Office of Legal Counsel – describes the criteria for identifying a “high value” detainee who would be a candidate for “enhanced interrogation techniques.” While describing the supposedly restrictive nature of the criteria, Bradbury actually reveals how broad the category was.
Such a detainee is someone “who, until time of capture, we have reason to believe: (1) is a senior member of al-Qai’da or an al-Qai’da associated terrorist group (Jemaah Islamiyyah, Egyptian Islamic Jihad, al-Zarqawi Group, etc.), (2) has knowledge of imminent terrorist threats against the USA, its military forces, its citizens and organizations, or its allies; or that has/had direct involvement in planning and preparing terrorist actions against the USA or its allies, or assisting the al-Qai’da leadership in planning and preparing such terrorist actions; and (3) if released, constitutes a clear and continuing threat to the USA or it allies,” the memo states.
In other words, an Iraqi insurgent allegedly linked to Abu Musab al-Zarqawi, a Jordanian militant who led a particularly violent faction of the Iraqi war against U.S. occupation, could qualify for harsh interrogation if he might know about future attacks on American or allied troops inside Iraq.
Though terrorism is classically defined as acts of violence directed against civilians to achieve a political goal, the Bush administration broadened the concept to include attacks by Iraqis against U.S. or allied soldiers occupying Iraq. So, for instance, a suspected Iraqi insurgent who might know about the location of roadside bombs would fall under these criteria.
Since the Bush administration blamed Zarqawi for much of the violence against U.S. forces in Iraq, that would have opened the door for rough treatment of any number of captured Iraqis. Indeed, that is what some of the prison guards at Abu Ghraib claimed to have thought they were doing, softening up Iraqi detainees for questioning by U.S. intelligence interrogators.
The Justice Department memos also buttress the testimony of former Army Sgt. Sam Provance, who served as a military intelligence officer at Abu Ghraib for four months starting in September 2003 and was the only one in such a position to blow the whistle on the cover-up that sought to focus blame for the scandal on low-level military police.
“While serving with my unit in Iraq,” Provance said in a statement submitted to Congress, “I became aware of changes in the procedures in which I and my fellow soldiers were trained. These changes involved using procedures which we previously did not use, and had been trained not to use, and in involving military police (MP) personnel in ‘preparation’ of detainees who were to be interrogated.
“Some detainees were treated in an incorrect and immoral fashion as a result of these changes. After what had happened at Abu Ghraib became a matter of public knowledge, and there was a demand for action, young soldiers were scapegoated while superiors misrepresented what had happened and tried to misdirect attention away from what was really going on.”
As a computer expert working the night shift, Provance came to know many of the interrogators, including a female who “told me detainees were routinely stripped naked in the cells and sometimes during interrogations (she said one man so shamed had actually made a loin cloth out of an MRE (Meal Ready to Eat) bag, so they no longer allowed him to have the MRE bag with his food).
“She said they also starved them or allowed them to only have certain items of food at a time. She said they played loud music – ‘Barney I Love You’ being the interrogators’ favorite. … She said they used dogs to terrify and torment the prisoners. She also said they deprived them of sleep for long periods of time.”
Provance said these strategies were “all part of a carefully planned regimen that had been introduced after the arrival of the teams from” the Guantanamo Bay prison facility where detainees from the “war on terror” had been concentrated.
Provance also recounted a conversation at the Camp Victory dining facility where one military intelligence guard “told an entire table full of laughing soldiers about how the MP’s had shown him and other soldiers how to knock someone out and to strike a detainee without leaving marks. They had practiced these techniques on unsuspecting detainees, after watching, he had participated himself.”
What is striking about Provance’s account in retrospect are the similarities between the CIA techniques approved by the Bush administration and the treatment of detainees at Abu Ghraib, including the notorious photographs of naked Iraqis paraded in front of female soldiers.
In both cases, nudity -- especially in front of women -- was used to degrade the prisoners; their diets were manipulated to weaken their resolve (the CIA fed its detainees Ensure); they were deprived of sleep (the CIA hung prisoners by their wrists and used icy water to keep them awake for a week or more); their personal fears were exploited; and they were roughed up in ways designed not to leave marks (the CIA used a technique called “walling,” slamming prisoners repeatedly into a false wall that made a loud noise).
There were some differences, too. While the Abu Ghraib photos revealed prisoners being piled up in fake sexual positions, the CIA program included the near-drowning experience of “waterboarding” against three “high-value detainees,” including its use 266 times against two detainees, Abu Zubaydah and Khalid Sheikh Mohammed.
Hiding the Evidence
Perhaps the most significant difference, however, was that photographs of the Abu Ghraib abuses reached the public, while the CIA destroyed 92 videotapes of its interrogations of detainees. Because the Abu Ghraib photos got out, President George W. Bush and other senior officials decided to denounce the humiliating treatment as disgraceful.
“I shared a deep disgust that those prisoners were treated the way they were treated,” Bush said. “Their treatment does not reflect the nature of the American people.”
Eventually, 11 enlisted soldiers, who were guards at Abu Ghraib, were convicted in courts martial. Cpl. Charles Graner Jr. received the harshest sentence – 10 years in prison – while Lynndie England, a 22-year-old single mother who was photographed holding an Iraqi on a leash and pointing at a detainee’s penis, was sentenced to three years in prison.
Superior officers were cleared of wrongdoing or received mild reprimands. For his whistleblowing about the systemic problem at Abu Ghraib, Sgt. Provance was threatened with prosecution and saw his military career destroyed.
The consequences for American troops in Iraq were also unpleasant. The Abu Ghraib scandal fueled the Iraqi insurgency in a war that has claimed the lives of more than 4,200 U.S. soldiers.
The link between the Abu Ghraib abuses and the U.S. death toll was described by a lead U.S. interrogator in Iraq, who used the pseudonym “Matthew Alexander” for a Washington Post Outlook article on Nov. 30, 2008.
“Alexander,” a U.S. Air Force special operations officer, said it was his team’s abandonment of those harsh tactics that contributed to the tracking down and killing of the murderous al-Qaeda in Iraq leader Zarqawi in June 2006.
“Alexander” said he arrived in Iraq in March 2006, amid the bloody civil war that Sunni extremist Zarqawi had helped provoke a month earlier with the bombing of the golden-domed Askariya mosque in Samarra, a shrine revered by Iraq's majority Shiites.
“Amid the chaos, four other Air Force criminal investigators and I joined an elite team of interrogators attempting to locate Zarqawi,” he wrote. “What I soon discovered about our methods astonished me. The Army was still conducting interrogations according to the Guantanamo Bay model. … These interrogations were based on fear and control; they often resulted in torture and abuse.
“I refused to participate in such practices, and a month later, I extended that prohibition to the team of interrogators I was assigned to lead. I taught the members of my unit a new methodology -- one based on building rapport with suspects, showing cultural understanding and using good old-fashioned brainpower to tease out information.”
By getting to know the captives and negotiating with them, his team achieved breakthroughs that enabled the U.S. military to close in on Zarqawi while also gaining a deeper understanding of what drove the Iraqi insurgency, “Alexander” wrote.
“Over the course of this renaissance in interrogation tactics, our attitudes changed. We no longer saw our prisoners as the stereotypical al-Qaeda evildoers we had been repeatedly briefed to expect; we saw them as Sunni Iraqis, often family men protecting themselves from Shiite militias and trying to ensure that their fellow Sunnis would still have some access to wealth and power in the new Iraq.
“Most surprisingly, they turned out to despise al-Qaeda in Iraq as much as they despised us, but Zarqawi and his thugs were willing to provide them with arms and money,” the interrogator wrote, noting that this understanding played a key role in the U.S. military turning many Sunnis against the hyper-violent extremism of Zarqawi’s organization.
“Alexander” added that the new interrogation methods “convinced one of Zarqawi's associates to give up the al-Qaeda in Iraq leader's location. On June 8, 2006, U.S. warplanes dropped two 500-pound bombs on a house where Zarqawi was meeting with other insurgent leaders.”
From hundreds of interrogations, “Alexander” said he learned that the images from Guantanamo Bay and Abu Ghraib were actually getting American soldiers killed by drawing angry young Arabs into the Iraq War.
“Torture and abuse cost American lives,” the interrogator wrote. “I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq.
“It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001.
"How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans.”
Nevertheless, in a series of “exit interviews,” Vice President Dick Cheney – and to a lesser degree President Bush – defended their actions that included sanctioning brutal methods of interrogation.” [See Consortiumnews.com’s “Cheney Defends Waterboarding Order.”]
That argument continues to this day with Bush’s defenders continuing to insist that the harsh methods were successful.
In an interview with Fox News on Monday, Cheney complained that the Obama administration had released the Justice Department memos on interrogations, “but they didn't put out the memos that showed the success of the effort."
Cheney then said, "I've now formally asked the CIA to take steps to declassify those memos so we can lay them out there and the American people have a chance to see what we obtained and what we learned and how good the intelligence was."
Full disclosure also might include how the CIA practices influenced interrogators in Iraq to apply similar methods on suspected Iraqi insurgents, a reality that not only damaged America’s image around the world but may have contributed to the deaths of many U.S. soldiers.
By Marjorie Cohn
When I testified last year before the House Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Civil Liberties about Bush interrogation policies, Congressman Trent Franks (R-Arizona) stated that former CIA Director Michael Hayden had confirmed that the Bush administration only waterboarded Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashirit for one minute each. I told Franks that I didn't believe that. Sure enough, one of the newly released torture memos reveals that Mohammed was waterboarded 183 times and Zubaydah was waterboarded 83 times. One of Stephen Bradbury's 2005 memos asserted that "enhanced techniques" on Zubaydah yielded the identification of Mohammed and an alleged radioactive bomb plot by Jose Padilla. But FBI supervisory special agent Ali Soufan, who interrogated Zubaydah from March to June 2002, wrote in The New York Times that Zubaydah produced that information under traditional interrogation methods, before the harsh tec hniques were ever used.
Why, then, the relentless waterboarding of these two men? It turns out that high Bush officials put heavy pressure on Pentagon interrogators to get Mohammed and Zubaydah to reveal a link between Saddam Hussein and the 9/11 hijackers, in order to justify Bush's illegal and unnecessary invasion of Iraq in 2003. That link was never established.
President Obama released the four memos in response to a Freedom of Information Act request by the ACLU. They describe unimaginably brutal techniques and provide "legal" justification for clearly illegal acts of torture and cruel, inhuman or degrading treatment. In the face of monumental pressure from the CIA to keep them secret, Obama demonstrated great courage in deciding to make the grotesque memos public. At the same time, however, in an attempt to pacify the intelligence establishment, Obama said, "it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution."
In startlingly clinical and dispassionate terms, the authors of the newly released torture memos describe and then rationalize why the devastating techniques the CIA sought to employ on human beings do not violate the Torture Statute (18 U.S.C. sec. 2340).
The memos justify 10 techniques, including banging heads into walls 30 times in a row, prolonged nudity, repeated slapping, dietary manipulation, and dousing with cold water as low as 41 degrees. They allow shackling in a standing position for 180 hours, sleep deprivation for 11 days, confinement of people in small dark boxes with insects for hours, and waterboarding to create the perception they are drowning. Moreover, the memos permit many of these techniques to be used in combination for a 30-day period. They find that none of these techniques constitute torture or cruel, inhuman or degrading treatment.
Waterboarding, admittedly the most serious of the methods, is designed, according to Jay Bybee, to induce the perception of "suffocation and incipient panic, i.e. the perception of drowning." But although Bybee finds that "the use of the waterboard constitutes a threat of imminent death," he accepts the CIA's claim that it does "not anticipate that any prolonged mental harm would result from the use of the waterboard." One of Bradbury's memos requires that a physician be on duty during waterboarding to perform a tracheotomy in case the victim doesn't recover after being returned to an upright position.
As psychologist Jeffrey Kaye points out, the CIA and the Justice Department "ignored a wealth of other published information" that indicates dissociative symptoms, changes greater than those in patients undergoing heart surgery, and drops in testosterone to castration levels after acute stress associated with techniques that the memos sanction.
The Torture Statute punishes conduct, or conspiracy to engage in conduct, specifically intended to inflict severe physical or mental pain or suffering. "Severe mental pain or suffering" means the prolonged mental harm caused by or resulting from either the intentional infliction or threatened infliction of severe physical pain or suffering, or from the threat of imminent death.
Bybee asserts that "if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent." He makes the novel claim that the presence of personnel with medical training who can stop the interrogation if medically necessary "indicates that it is not your intent to cause severe physical pain."
Now a federal judge with a lifetime appointment, Bybee concludes that waterboarding does not constitute torture under the Torture Statute. However, he writes, "we cannot predict with confidence whether a court would agree with this conclusion."
Bybee's memo explains why the 10 techniques could be used on Abu Zubaydah, who was considered to be a top al-Qaeda operative. "Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from [the CIA's] proposed interrogation methods," the CIA told Bybee. But Zubaydah was a low-ranking al-Qaeda operative, according to leading FBI counterterrorism expert Dan Coleman, who advised a top FBI official, "This guy is insane, certifiable, split personality." This was reported by Ron Suskind in his book, "The One Percent Doctrine."
The CIA's request to confine Zubaydah in a cramped box with an insect was granted by Bybee, who told the CIA it could place a harmless insect in the box and tell Zubaydah that it will sting him but it won't kill him. Even though the CIA knew that Zubaydah had an irrational fear of insects, Bybee found there would be no threat of severe physical pain or suffering if it followed this procedure.
Obama's intent to immunize those who violated our laws banning torture and cruel treatment violates the president's constitutional duty to "take Care that the Laws be faithfully executed."
US law prohibits torture and cruel, inhuman or degrading treatment, and requires that those who subject people to such treatment be prosecuted. The Convention against Torture compels us to refer all torture cases for prosecution or extradite the suspect to a country that will undertake a criminal investigation.
Obama has made a political calculation to seek amnesty for the CIA torturers. However, good-faith reliance on superior orders was rejected as a defense at Nuremberg and in Lieutenant Calley's Vietnam-era trial for the My Lai Massacre. The Torture Convention provides unequivocally, "An order from a superior officer or a public authority may not be invoked as a justification for torture."
There is evidence that the CIA was using the illegal techniques as early as April 2002, three to four months before the August memo was written. That would eliminate "good-faith" reliance on Justice Department advice as a "defense" to prosecution.
The Senate Intelligence Committee revealed that Condoleezza Rice approved waterboarding on July 17, 2002, "subject to a determination of legality by the OLC." She got it two weeks later from Bybee and John Yoo. Rice, Dick Cheney, John Ashcroft, Alberto Gonzales and George Tenet reassured the CIA in spring 2003 that the abusive methods were legal.
Obama told The Associated Press's Jennifer Loven in the Oval Office: "With respect to those who formulated those legal decisions, I would say that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that." If Holder continues to carry out Obama's political agenda by resisting investigations and prosecution, Congress can, and should, authorize the appointment of a special independent prosecutor to do what the law requires.
The president must fulfill his constitutional duty to ensure that the laws are faithfully executed. Obama said that "nothing will be gained by spending our time and energy laying blame for the past." He is wrong. There is more to gain from upholding the rule of law. It will make future leaders think twice before they authorize the cruel, illegal treatment of other human beings.
By George Washington
5 hours after the 9/11 attacks, Donald Rumsfeld said "my interest is to hit Saddam".
He also said "Go massive . . . Sweep it all up. Things related and not."
And at 2:40 p.m. on September 11th, in a memorandum of discussions between top administration officials, several lines below the statement "judge whether good enough [to] hit S.H. [that is, Saddam Hussein] at same time", is the statement "Hard to get a good case." In other words, top officials knew that there wasn't a good case that Hussein was behind 9/11, but they wanted to use the 9/11 attacks as an excuse to justify war with Iraq anyway.
Moreover, "Ten days after the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon, President Bush was told in a highly classified briefing that the U.S. intelligence community had no evidence linking the Iraqi regime of Saddam Hussein to the [9/11] attacks and that there was scant credible evidence that Iraq had any significant collaborative ties with Al Qaeda".
And a Defense Intelligence Terrorism Summary issued in February 2002 by the United States Defense Intelligence Agency cast significant doubt on the possibility of a Saddam Hussein-al-Qaeda conspiracy.
And yet Bush, Cheney and other top administration officials claimed repeatedly for years that Saddam was behind 9/11. See this analysis. Indeed, Bush administration officials apparently swore in a lawsuit that Saddam was behind 9/11.
Moreover, President Bush's March 18, 2003 letter to Congress authorizing the use of force against Iraq, includes the following paragraph:
(2) acting pursuant to the Constitution and Public Law 107-243 is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.
Therefore, the Bush administration expressly justified the Iraq war to Congress by representing that Iraq planned, authorized, committed, or aided the 9/11 attacks. See this.
Yesterday, Seator Levin revealed that the U.S. used torture techniques aimed at extracting false confessions.
Today, McClatchy fills in some of the details:
Former senior U.S. intelligence official familiar with the interrogation issue said that Cheney and former Defense Secretary Donald H. Rumsfeld demanded that the interrogators find evidence of al Qaida-Iraq collaboration...
For most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."
It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly — Abu Zubaydah at least 83 times in August 2002 and Khalid Sheik Muhammed 183 times in March 2003 — according to a newly released Justice Department document...
When people kept coming up empty, they were told by Cheney's and Rumsfeld's people to push harder," he continued."Cheney's and Rumsfeld's people were told repeatedly, by CIA . . . and by others, that there wasn't any reliable intelligence that pointed to operational ties between bin Laden and Saddam . . .
A former U.S. Army psychiatrist, Maj. Charles Burney, told Army investigators in 2006 that interrogators at the Guantanamo Bay, Cuba, detention facility were under "pressure" to produce evidence of ties between al Qaida and Iraq.
"While we were there a large part of the time we were focused on trying to establish a link between al Qaida and Iraq and we were not successful in establishing a link between al Qaida and Iraq," Burney told staff of the Army Inspector General. "The more frustrated people got in not being able to establish that link . . . there was more and more pressure to resort to measures that might produce more immediate results."
"I think it's obvious that the administration was scrambling then to try to find a connection, a link (between al Qaida and Iraq)," [Senator] Levin said in a conference call with reporters. "They made out links where they didn't exist."
Levin recalled Cheney's assertions that a senior Iraqi intelligence officer had met Mohammad Atta, the leader of the 9/11 hijackers, in the Czech Republic capital of Prague just months before the attacks on the World Trade Center and the Pentagon.
The FBI and CIA found that no such meeting occurred.
In other words, top Bush administration officials not only knowingly lied about a non-existent connection between Al Qaida and Iraq, but they pushed and insisted that interrogators use special torture methods aimed at extracting false confessions to attempt to create such a false linkage.
Writing about this today, Paul Krugman says:
Let’s say this slowly: the Bush administration wanted to use 9/11 as a pretext to invade Iraq, even though Iraq had nothing to do with 9/11. So it tortured people to make them confess to the nonexistent link.
There’s a word for this: it’s evil.
What Does That Say About the Persuasiveness of the 9/11 Commission Report?
As noted by Newsweek:
The commission appears to have ignored obvious clues throughout 2003 and 2004 that its account of the 9/11 plot and Al Qaeda's history relied heavily on information obtained from detainees who had been subjected to torture, or something not far from it.
The panel raised no public protest over the CIA's interrogation methods, even though news reports at the time suggested how brutal those methods were. In fact, the commission demanded that the CIA carry out new rounds of interrogations in 2004 to get answers to its questions.
That has troubling implications for the credibility of the commission's final report. In intelligence circles, testimony obtained through torture is typically discredited; research shows that people will say anything under threat of intense physical pain.
And yet it is a distinct possibility that Al Qaeda suspects who were the exclusive source of information for long passages of the commission's report may have been subjected to "enhanced" interrogation techniques, or at least threatened with them, because of the 9/11 Commission....
Information from CIA interrogations of two of the three—KSM and Abu Zubaydah—is cited throughout two key chapters of the panel's report focusing on the planning and execution of the attacks and on the history of Al Qaeda.
Footnotes in the panel's report indicate when information was obtained from detainees interrogated by the CIA. An analysis by NBC News found that more than a quarter of the report's footnotes—441 of some 1,700—referred to detainees who were subjected to the CIA's "enhanced" interrogation program, including the trio who were waterboarded.
Commission members note that they repeatedly pressed the Bush White House and CIA for direct access to the detainees, but the administration refused. So the commission forwarded questions to the CIA, whose interrogators posed them on the panel's behalf.
The commission's report gave no hint that harsh interrogation methods were used in gathering information, stating that the panel had "no control" over how the CIA did its job; the authors also said they had attempted to corroborate the information "with documents and statements of others."
But how could the commission corroborate information known only to a handful of people in a shadowy terrorist network, most of whom were either dead or still at large?
Former senator Bob Kerrey of Nebraska, a Democrat on the commission, told me last year he had long feared that the investigation depended too heavily on the accounts of Al Qaeda detainees who were physically coerced into talking. ...
Kerrey said it might take "a permanent 9/11 commission" to end the remaining mysteries of September 11. Those now calling for more 9/11-style panels would be wise to heed his words.
Indeed, as I have repeatedly noted, the 9/11 Commission Report was largely based on a third-hand account of what tortured detainees said, with two of the three parties in the communication being government employees.
The 9/11 Commission itself is complaining that the government lied to - and hid evidence from - the Commission. See this, this, this and this.
Now that we know that the interrogators used torture techniques aimed at extracting false confessions, does the 9/11 Commission Report carry any weight whatsoever?
By Jason Leopold
George W. Bush’s Justice Department said subjecting a person to the near-drowning of waterboarding was not a crime and didn’t even cause pain, but Ronald Reagan’s Justice Department thought otherwise, prosecuting a Texas sheriff and three deputies for using the practice to get confessions.
Federal prosecutors secured a 10-year sentence against the sheriff and four years in prison for the deputies. But that 1983 case – which would seem to be directly on point for a legal analysis on waterboarding two decades later – was never mentioned in the four Bush administration opinions released last week.
The failure to cite the earlier waterboarding case and a half-dozen other precedents that dealt with torture is reportedly one of the critical findings of a Justice Department watchdog report that legal sources say faults former Bush administration lawyers – Jay Bybee, John Yoo and Steven Bradbury – for violating “professional standards.”
Bybee, Yoo and Bradbury also shocked many who have read their memos in the last week by their use of clinical and legalistic jargon that sometimes took on an otherworldly or Orwellian quality. Bybee’s Aug. 1, 2002, legal memo – drafted by Yoo – argued that waterboarding could not be torture because it does not “inflict physical pain.”
During the procedure, a subject is strapped down to a bench with his head lower than his feet and his face covered by a cloth that is then saturated with water, cutting off his breathing and inducing the panic reflex that a person feels while drowning.
“You have informed us that this procedure does not inflict actual physical harm,” Bybee wrote. “Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. ... The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.”
Bush administration officials approved CIA waterboarding for three “high-value” detainees, including Abu Zubaydah (believed to be an al-Qaeda logistics operative) and Khalid Sheikh Mohammed (known as KSM, the alleged mastermind of the 9/11 attacks). Zubaydah was waterboarded at least 83 times and KSM at least 183 times, according to one Justice Department memo.
Bybee, whose memo gave legal cover for the initial use of waterboarding and nine other brutal interrogation methods, said his opinion – as assistant attorney general in charge of the Office of Legal Counsel, which advises Presidents on the limits of their legal powers – represented “our best reading of the law.” He cited scant history for the Convention Against Torture, which took effect in 1987.
“However, you should be aware that there are no cases construing this statute, just as there have been no prosecutions brought under it,” Bybee wrote.
The Convention Against Torture makes it a crime for any “person acting under the color of law” to “inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”
That law was not in existence when the Texas sheriff, James Parker, and his deputies were prosecuted and sentenced in the 1980s. But Bybee, Bradbury and Yoo had a duty to their legal profession to cite the case as it would have changed the substance of their legal opinions, said Scott Horton, a human rights attorney and constitutional expert.
“Any competent legal adviser would, among other things, have looked at the techniques themselves and checked to see how they have been treated in prior cases,” Horton said in an e-mail. “Obviously the Anti-Torture Statute itself is a very recent invention and it has no enforcement history, so saying that and then suggesting on this basis that the situation is tabula rasa is highly disingenuous.”
Horton suspects that Bybee, Yoo and Bradbury were well aware of the case law but simply chose to ignore it in order to give the Bush administration what it had asked for.
“To take one example, there was a court-martial addressing the practice of waterboarding from 1903, a state court case from the Twenties, a series of prosecutions at the [post-World War II] Tokyo Tribunal (in many of which the death penalty was sought) and another court-martial in 1968,” Horton said. “These precedents could have been revealed in just a few minutes of computerized research using the right search engines. It's hard to imagine that Yoo and Bybee didn't know them.
“So why are none of these precedents mentioned? Obviously because each of them contradicts the memo's conclusions and would have to be distinguished away. Professional rules would have required that these precedents be cited, failing to do so reflects incompetent analysis.”
In fact, the Justice Department’s Office of Professional Responsibility investigated whether the three lawyers purposely twisted their legal advice to satisfy the White House and knowingly avoided citing existing case law in order to reach conclusions the White House wanted. It’s unknown what OPR has concluded about that point in its report, which is now being revised.
Beyond ignoring the case law on torture, Yoo, as a deputy assistant attorney general, pushed the theory that President Bush could not be bound by laws outlawing torture because of his constitutional authority to use military force at a time of war.
"As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy," said Yoo in another memo dated Aug. 1, 2002, and entitled “Standards of Conduct for Interrogation.”
In that opinion, Yoo failed to cite the key precedent relating to a President’s war powers, Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry Truman’s order to seize steel mills that had been shut down in a labor dispute during the Korean War.
Truman said the strike threatened national defense and thus justified his actions under his Article II powers in the Constitution.
But the Supreme Court overturned Truman’s order, saying, “the President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” Since Congress hadn’t delegated such authority to Truman, the Supreme Court ruled that Truman’s actions were unconstitutional, with an influential concurring opinion written by Justice Robert Jackson.
In his 2006 book, War by Other Means, Yoo offered up a defense of his failure to cite Youngstown. “We didn’t cite Jackson’s individual views in Youngstown because earlier [Office of Legal Counsel] opinions, reaching across several administrations, had concluded that it had no application to the President’s conduct of foreign affairs and national security.”
Yoo added, “Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war. …
“Detention and interrogation policy are at the heart of the President’s Commander-in-Chief power to wage war, and long constitutional history supports the President’s leading role on such matters.”
But Horton disagrees. “The Youngstown case is considered the lodestar precedent addressing the President's invocation of Commander-in-Chief powers away from a battlefield,” Horton told me via e-mail.
“Justice Jackson's opinion is the most persuasive of the opinions justifying the decision,” Horton said. “If you examine any treatise on national security law, you'll find them at the core. Moreover, the Supreme Court itself in subsequent opinions has highlighted their importance.
“It's obvious that Yoo failed to cite them not because he believed they were off point (as he rather lamely suggests), but because they strongly contradicted the premise he was articulating.
“But a lawyer crafting an opinion has a duty of candor that requires that he identify and distinguish adverse precedent that a court might consider controlling. In essence, Yoo was free to articulate whatever cockeyed theories he wanted. He was not free to suppress the existence of Supreme Court authority that went in the opposite direction. But that's exactly what he did.”
The four legal opinions released last week attempt to make the case that the “enhanced interrogations” of suspected terrorists needed to be done in order to save American lives and foil other plans to attack the United States. In defending the Bush administration’s torture program, Republicans have likened the “high-value” detainees to mass murderers who don’t deserve to be treated humanely.
At the trial of the Texas sheriff, Assistant U.S. Attorney Scott Woodward said the prisoners who were subjected to waterboarding were not “model citizens” but they were still “victims” of torture.
“We make no bones about it. The victims of these crimes are criminals,” Woodward said, according to a copy of the trial transcript. One of the “victims” was Vernell Harkless, who was convicted of burglary in 1977.
Gregg Magee, a deputy sheriff who testified against Sheriff Parker and three of the deputies said he witnessed Harkless being handcuffed to a chair by Parker and then getting “the water treatment.”
“A towel was draped over his head,” Magee said, according to court documents. “He was pulled back in the chair and water was poured over the towel.”
Harkless said he thought he was “going to be strangled to death,” adding: “I couldn't breathe.”
One of the defendants, Deputy Floyd Allen Baker, said during the trial that he thought torture to be an immoral act but he was unaware that it was illegal. His attorneys cited the “Nuremberg defense,” that Baker was acting on orders from his superiors when he subjected prisoners to waterboarding.
That line of defense has come up in the current debate about whether CIA interrogators should be prosecuted for their roles in the torture of detainees. President Obama, CIA Director Leon Panetta and Attorney General Eric Holder have ruled out prosecuting CIA interrogators who acted on Justice Department legal advice.
Some other legal analysts have suggested that the ambiguity of the Bush administration’s decision process – in which CIA interrogators suggested the harsh tactics, national security officials, including Condoleezza Rice, concurred, and Justice Department lawyers gave their approval – would make getting 12 jurors to agree on a conviction difficult.
But the jury in the Baker’s case didn’t buy the “didn’t know it was illegal” defense, convicting the deputy on three counts of civil rights and constitutional violations related to the waterboarding.
Bybee is now a federal judge on the 9th Circuit Court of Appeals in San Francisco. Yoo is a constitutional law professor at the University of California, Berkeley and a visiting professor at Chapman University in Orange, California.
Bradbury, who was acting head of the Office of Legal Counsel for most of Bush’s second term, reportedly has been looking for a job since Bush left office on Jan. 20, 2009.