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Tuesday, April 21, 2009
The torture judge: Bybee lawyers up
Jay Bybee, the sitting federal judge whose previous occupation was crafting crude legal arguments that would allow CIA personnel to torture, including waterboarding two terrorism suspects up to 6 times a day ... has hired a lawyer. And while we in the blog world would like to think it's our (or Rachel Maddow or Keith Olbermann's) doing, the real reason is that the Justice Department is not in any way obligated to go along with President Obama in eschewing prosecution of those who committed or attempted to sanction war crimes. (Despite the twisting of the job by Al "Torquemada" Gonzales, the A.G. is NOT the president's lawyer. He's OUR lawyer.) From Michael Isikoff at Newsweek (nowadays looking into things much more important than stained dresses...)
... the Obama administration is not off the hook. Though administration officials declared that CIA interrogators who followed Justice's legal guidance on torture would not be prosecuted, that does not mean the inquiries are over. Senior Justice Department lawyers and other advisers, who declined to be identified discussing a sensitive subject, say Attorney General Eric Holder Jr. has discussed naming a senior prosecutor or outside counsel to review whether CIA interrogators exceeded legal boundaries--and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place. Some Justice officials are deeply troubled by reports of detainee treatment and believe they may suggest criminal misconduct, these sources say. Even if prosecutions prove too difficult to bring, an outside counsel's report could be made public. For his part, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, is still pushing for a "truth commission." In a democracy, the wheels of justice grind on--and the president, for good reason under the rule of law, does not have the power to stop them.
Bybee does have legal counsel, for free, even. But the notion that he might be off the hook in Spain is a non-starter. A judge there has overruled that country's attorney general on the prosecution of the so-called Bush Six, Bybee included. Meanwhile, Isikoff also uncovered this interesting piece of data:
After several intense cabinet meetings, Obama appeared to back down and go along with a Panetta proposal to heavily "redact"—black out—all references to specific interrogation techniques, say the administration sources. But this would make the release meaningless, argued others, and Obama began to swing back again. Panetta had one ally, John Brennan, a former agency official who is now Obama's chief counterterrorism adviser. But Adm. Dennis Blair, the national intelligence director, backed a more complete release, and so did Secretary of Defense Robert Gates, a Bush holdover (and former CIA director).
Gates + Blair = wow. Apparently, members of the CIA's clandestine service are pissed about the document release, but really, what did they expect? To be able to break the law with impunity, and with presidential cover? Oh, that's right ... that's what they ARE getting, at least, as long as they followed the ridiculously detailed torture guidelines:
"As a practical matter, it's over—nobody is going to get prosecuted," says Robert Bennett, the Washington lawyer whose clients include Jose Rodriguez, the former chief of the CIA's clandestine service, who has been under investigation for his November 2005 decision to destroy 92 videotapes showing the interrogation of Abu Zubaydah. But what if evidence emerges that CIA officials (or contractors, who actually conducted most of the interrogations) went beyond the boundaries that the Justice Department erected? The CIA has consistently denied wrongdoing, but an intriguing footnote to one of the memos says that an internal CIA investigation found that there might have been "unnecessary use of enhanced techniques" against one Qaeda suspect.
There are other inquiries to come, in Congress, and inside the Justice Department's ethics division:
Three Bush administration lawyers who signed memos, John C. Yoo, Jay S. Bybee and Steven G. Bradbury, are the subjects of a coming report by the Justice Department’s ethics office that officials say is sharply critical of their work. The ethics office has the power to recommend disbarment or other professional penalties or, less likely, to refer cases for criminal prosecution.
On a side note, Jason and I were discussing last night whether President Obama might be more clever in this regard than he's being given credit for -- pushing the notion of prosecutions away from himself as a political matter, knowing that he can't stop Congress, Justice or the international community from acting. Not the most principled use of power, I'd argue, but perhaps a clever way to keep the politics at arms length, while ultimately having those who broke the law held to account. We'll see what happens.

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posted by JReid @ 8:43 AM  
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"I am for enhanced interrogation. I don't believe waterboarding is torture... I'll do it. I'll do it for charity." -- Sean Hannity
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