Inconvenient News,
       by smintheus

Sunday, February 28, 2010

  Politico points fingers

At Politico, Michael Calderone is wringing his hands over journalists’ failure to properly vet presidential candidates. John Edwards, he complains, was allowed to get away with lies and indulge in a “compulsive vanity that left some people close to him questioning his judgment and even his grip on reality”. And “that failure is worrisome in a changed political world” in which politicians can quickly gain a lot of popular support without necessarily having much credibility or substance. He goes on to quote Marc Ambinder on those who helped to shield Edwards’ bizarre obsessions and manipulative behavior from scrutiny: “If you enable it, you are responsible in some ways for the fallout.”

This is the same Politico that made itself utterly notorious during 2009 by serving as an uncritical mouthpiece for the dishonest, vacuous, and tendentious ravings leveled by Dick Cheney against the new administration. The former vice president’s disdain for the truth has been exposed so many times over the years that you’d think no journalists would grant him much credibility on anything, least of all any topic where he has an axe to grind. And yet, even when exposed to withering criticism from all sides for serving as Cheney’s stenographers, Politico continues to try to defend their news judgment and, yes, even Cheney’s grip on reality.

Last month Jason Linkins put his finger on the main reason why Politico has persisted in this tawdry love affair with Cheney:

If it were possible to, say, hog-tie [Politico editor] John Harris with Wonder Woman's truth-compelling Golden Lasso, here's what he'd say about the Politico and Dick Cheney: the paper and the former vice president are in a co-dependent, enabling relationship. Cheney is willing to provide the paper with exclusive commentary on topics of his choosing, that Politico can then use to garner page views and attention from other media outlets, who deem the things Cheney says to be newsworthy. The cost that Cheney exacts from Politico is the promise to not apply any sort of critical thought to his ramblings. And so, the two combine to create mutually beneficial, journalism-like word salsa, contrived and calibrated for maximum attention-getting.

Then, Cheney goes back to his hidey-hole, where he can avoid confrontation.

Lies, compulsive vanity, poor judgment, weak grip on reality, lack of credibility and substance. If only they could fit all that on the masthead over at Politico, they’d really be cooking.

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Thursday, February 25, 2010

  Yoo climbs down from his cross

Showing the same poor judgment that informed virtually every sentence of his perverse OLC output, John Yoo decided to go into print with this deliciously self-pitying tribute to his own martyrdom at the hands of an unappreciative world. It turns out that Yoo has not been doing the rounds for the last several years trying to defend his shoddy legal work under the Bush administration in order to retrieve his own shattered reputation. No, his motives, he assures us, have been pure and selfless. Yoo was intent instead on saving the Obama presidency by “winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe”.

Yep, what with all those OLC memos of his that have been withdrawn, renounced and subjected to ridicule, Yoo single-handedly saved a president who nonetheless turned on him and hounded him - by viciously “letting loose” an investigation that began under Bush, and, oh yeah, allowing his Attorney General to investigate everybody else except Yoo’s complicity in torture. Don’t you just hate when that happens?

Actually, Yoo is far too modest in his claims. His legacy to America is much greater and can’t be circumscribed by the term of a single presidency. No, as I commented last month, his gift to constitutional democracy ultimately is the Justice Department’s refusal to punish Yoo and his OLC cohorts for having indemnified government officials who engaged in egregious lawlessness and human rights abuses. Yoo has worked to guarantee that every president in the future may violate clearly established law with impunity for himself and his assistants, by the simple device of hiring unscrupulous lawyers to produce the necessary advice, however preposterous, sufficient to shield the wrongdoers from future prosecution. Call it an all-out assault on the rule of law. It’s quite a legacy, and worth coming down from one’s cross to receive our thanks and plaudits.

And that’s quite a cross Yoo has going there for him. He’s determined to settle scores with any who dare to investigate him, especially the ethics officials at OPR who produced a scathing report last year on Yoo’s torture memos. One paragraph in Yoo’s WSJ op-ed is unusually…instructive.

Rank bias and sheer incompetence infused OPR's investigation.

Self-awareness was never John Yoo’s strong point.

OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR's preferred outcome.

This from the man whose memos famously omitted to discuss any number of precedents that undermined the Bush administration’s preferred outcomes.

They declared that no Americans have a right of self-defense against a criminal prosecution, not even when they or their government agents attempt to stop terrorist attacks on the United States.

Umm, no, OPR did not do that.

OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president's commander-in-chief power.

No they didn’t.

They accused us of violating ethical standards without ever defining them.

No, they didn’t.

They concocted bizarre conspiracy theories about which they never asked us, and for which they had no evidence,

No they had plenty of evidence, though admittedly they might have had a good deal more if Yoo had not deleted and expunged all record of so much of his email correspondence.

even though we both patiently—and with no legal obligation to do so—sat through days of questioning.

Whoops, back up on his cross.

Anyway, this op-ed is worth drawing attention to if only because of the accompanying illustration. Notice how Uncle Sam is hampered in his self defense by the scales of justice. So I guess it’s alright to throw those out now.

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Wednesday, February 24, 2010

  David Addington did approve of cruel CIA interrogation techniques

So far Dick Cheney’s notorious former legal counsel and confidant, David Addington, has managed to maintain the pretense that he was not directly involved in authorizing the use of torture and cruel or degrading treatment of prisoners under the Bush administration. Now we have documentary evidence of his direct involvement.

The very right-wing Judicial Watch has just released a batch of CIA documents it obtained through a FOIA request. Judicial Watch is seeking to embarrass congressional Democrats by showing that the CIA briefed them under Bush about the abusive interrogation methods. Whether or not the documents actually manage to embarrass those Democrats, one of them does embarrass Addington.

Here they are (PDF). One formerly classified memo from February 4, 2003 summarizes a CIA briefing given to Sen. Roberts and the staffers for Sen. Rockefeller regarding the ongoing abusive CIA interrogations of terrorism suspects. It reads in part (my emphasis):

The enhanced [interrogation] techniques were described in considerable detail, including how the water board was used. The [CIA] General Counsel described the process by which the techniques were approved by a bevy of lawyers from the NSC, the Vice President’s office and the Justice Department, including the Criminal Division and the Attorney General, who opined that the techniques were legal under U.S. law.

The Vice President’s lawyer is almost certainly Cheney’s eminence gris, David Addington.

In the past Addington has frequently been linked to the development of torture and abusive techniques. But none of these allegations have been documented and Addington has denied or evaded the charges.

In 2004 Newsweek’s Daniel Klaidman reported (the original link evidently is defunct) that aides to presidential counsel Alberto Gonzales said that it was Addington, not Gonzales, who drafted the January 25, 2002 memo that argued some provisions of the Geneva Conventions were “quaint” and “obsolete”. Addington continued for years to lead the fight in denigrating the applicability of the Geneva Conventions, so he may well have been involved in drafting the January 25, 2002 memo.

Addington also reportedly played a key role in shaping the August 1, 2002 Bybee Memo authorizing a list of abusive interrogation techniques, including waterboarding - which plainly was treated as torture under established US law. The recently released OPR final report into misconduct by the DOJ torture memo authors (especially John Yoo and Jay Bybee), focuses at length upon revisions to the draft Bybee memo that seemed to be requested in July 2002 by Addington and Gonzales. The OPR report highlights what appears to be an elaborate attempt by Yoo, Bybee, Jennifer Koester (another unindicted torture memo author), and others in the Bush administration to cover the tracks that led back to the direct involvement of Gonzales and Addington in shaping the Bybee Memo. I’ll write more later about this episode because it is critical, I believe, to understanding why David Margolis rejected the OPR’s finding that Yoo and Bybee engaged in misconduct. Suffice it to say here that the apparent attempt by Yoo and others to shield Gonzales and Addington from any direct responsibility for the Bybee Memo involves a series of bizarre and incredible assertions, laid out by OPR at pp. 46-53. Among other oddities, nobody from DOJ or the White House who attended a critical July 16, 2002 meeting to discuss the draft memo can remember what Gonzales or Addington said about it, even though that meeting immediately preceded the most controversial additions to the memo.

Philippe Sands has also reported that Addington was part of a high-level delegation (which also included Gonzales) that visited Guantanamo prison in September of 2002 and pressured the military there to introduce more abusive interrogation techniques.

With the help of friends over the years, Addington issued dismissive and vague denials that he was directly involved in drafting or shaping any torture memos or advocating for specific abusive practices. When called to testify before Congress about his activities, Addington was snidely dismissive of questions and frequently evasive. He did however deny that he pressured anybody at Gitmo in 2002 to adopt abusive techniques. Addington also insinuated that he made no suggestions to the OLC lawyers at the July 16, 2002 meeting. In response to their briefing about the draft Bybee Memo, Addington claims, he said nothing more than “Good” before sending them on their way.

In short, until now David Addington has managed to bob and weave, obfuscate and deny every time he has been implicated in direct involvement in shaping or authorizing torture and abuse of prisoners. Now however we have a CIA document that says the Vice President’s lawyer approved of the “enhanced interrogation techniques” being used by the CIA at the start of 2003.

Say so long to plausible deniability, David.

crossposted at

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Friday, February 19, 2010

  Is honesty a “known, unambiguous obligation or standard”?

The final Justice Department assessment of the professional conduct of the torture memo authors (PDF) has been dumped released unceremoniously this Friday afternoon. The assessment is not posted, nor is there a press release about it, at the DOJ website.

The draft report(s) by the Office of Professional Responsibility had found John Yoo and Jay Bybee guilty of misconduct – rather remarkably, given that OPR investigations of wrongdoing by Justice Department officials almost always lead nowhere. However, as anticipated (see here), in its final assessment the DOJ softened the draft (OPR) findings to the point that Yoo and Bybee were found only to have exercised “poor judgment”. Absent a finding of misconduct, they will not be disbarred or in Judge Bybee’s case, face impeachment. Indeed it looks like there’ll be no penalty at all for having given the green light to the torture and abuse of prisoners in US custody.

David Margolis, an associate deputy attorney general, is the man who decided to let Yoo and Bybee off with a slap on the wrist. His reasoning? Essentially he argues that “a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney’s conduct. I am unpersuaded that OPR has identified such a standard.”

I’ll have more to say later about this final assessment and the politics behind Margolis’ decision once I’ve digested the whole thing. For now, I’ll simply note that Margolis (who is said to be extremely sensitive to which way the political winds are blowing in DC) is talking through his hat here. The memos generated by Yoo and Bybee are rife with gross inaccuracies and demonstrable falsehoods. Is it not a known and unambiguously accepted standard that attorneys are obligated to be honest and scrupulous in their representations of law and jurisprudence? At a minimum?

To cite but one example, which I reported on here last August, John Yoo falsified what the UN Convention against Torture says in his memo from April 28, 2003. In that memo, Yoo claimed that …

"the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment or punishment] in exigent circumstances, such as a national emergency or war."

Yoo’s memo added no qualifications, no evidence, no citation, and no argument to justify that statement. The statement is absolutely false, as I documented in my post last August. In other words, Yoo lied in order to provide the Bush administration with a back-door justification (“national emergency”) for torture where none exists legally.

Whatever else one may think of the dubious propositions advanced by Yoo in that memo, it could not possibly be any clearer that he has engaged in misconduct in this instance.

Why does David Margolis not recognize honesty and factual accuracy as an unambiguous obligation for Justice Department attorneys?

Update: In his assessment of the OPR report, Margolis does in fact get around to the question of honesty - admitting that professional rules obligate DOJ attorneys to refrain from provinding to a client advice that is knowningly or recklessly false or issued in bad faith. Their legal work also must be competent.

Nevertheless, Margolis goes on to consider and dismiss all the evidence that the OPR report assembled to show that John Yoo's work to justify the torture and abuse of prisoners was incompetent and knowingly or recklessly false or issued in bad faith. It's a tour de force of seeing-no-evil. I simply cannot imagine how any candid investigation of John Yoo's legal output could avoid the conclusion that he knowingly falsified both law and case law in the baddest of faith.

crossposted at

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