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  • December 19, 2014
    The Middle Class is Overdue for Overtime Pay Raise

    Working Americans have a problem. And that means President Obama and his Democratic Party have a problem, too.

    Despite the robust economic recovery, the steep decline in unemployment, a surging stock market, rising investment and plummeting gas prices, wages have hardly budged. After briefly dipping during the great recession which began in late 2007, income inequality has reached levels not seen since the 1920's, while the gap between middle and upper income families is, according to the Pew Research Center, now "the widest on record." Meanwhile, new measures designed to aid and expand the middle class--including major infrastructure investment, action of college tuition, federal assistance to help state and local governments rehire teachers, firefighters and police--remain blocked by Republicans in Congress. It's no wonder, as the New York Times reported, Democrats are divided "over how -- even whether -- to take any" credit for the improving economy they helped rescue.

    All of which is why President Obama should act-right now--to raise the overtime pay threshold. With the stroke of his pen, Obama can deliver a decades-overdue raise to as many as 10 million middle class Americans.

    Nick Hanaeur, the Seattle-based venture capitalist who has been warning his fellow one-percenters that "the pitchforks are coming for us," is the latest progressive voice to advocate for bringing overtime pay in the 21st century. As he explained Thursday in The Hill:

    Overtime pay is to the middle class what the minimum wage is to low-wage workers. In 1975, more than 65 percent of salaried American workers earned time-and-a-half pay for every hour worked over 40 hours a week, but by 2013, that number had dropped to less than 11 percent. That's because the income threshold at which employers are required to pay overtime has been allowed to erode to only $23,660 a year, less than the poverty line for a family of four. The 89 percent of salaried workers who now earn over that threshold can be forced to work unlimited overtime hours for no additional pay at all.

    And according to a recent Gallup poll, that's exactly what's happening. Salaried Americans now report working an average of 47 hours a week--18 percent report working more than 60 hours per week. If it feels like you're working more hours for less money than your parents did a generation ago, it's probably because you are.

    But it doesn't have to be this way: President Obama could raise the overtime threshold to $69,000--enough to cover the same 65 percent of salaried workers that it covered 40 years ago--and with no prior congressional approval. Because unlike the minimum wage, the overtime threshold is set through the Department of Labor's existing regulatory authority.

    That's right. The Fair Labor Standards Act (FLSA) of 1938 established the rules governing overtime pay over 75 years ago. Employees covered by the FLSA overtime provisions must be paid 150 percent of their wage ("time-and-a-half") for each hour above the 40 hour work week. While some 75 million hourly workers are covered, millions of salaried Americans are not. And many of them are left out not just because of FLSA "tests" classifying their jobs as "supervisory", "management" or "executive" positions. As Ross Eisenbrey and Jared Bernstein wrote in March for the Economic Policy Institute:

    A simple way to address these problems is to raise the salary threshold under which all salaried workers, regardless of their work duties, are covered by the OT provisions. This key FLSA parameter has rarely been updated, nor is it indexed to inflation: The salary threshold has been changed only eight times in 75 years and only once since 1975. Simply adjusting the threshold for inflation since 1975--one of our key recommendations--would raise it to $970 per week, equivalent to an annual salary of about $50,440 today.

    The need for updating overtime is made clearer by looking at the profound changes in the American economy--and the American workforce since the last increase almost 40 years ago. In the face of globalization and automation, America's manufacturing, unionized workforce has given way to the service economy with millions of salaried retail, education, financial, health and computer "professionals" exempt from FLSA's overtime protections. As Bernstein and Eisenbrey noted:

    Preserving this right is just as important today as it was 75 years ago, and, when it comes to child-rearing, might be even more important. Between 1968 and 2008, the share of children living in households in which all parents work full time doubled from 24.6 percent to 48.3 percent.

    To be sure, having the overtime threshold at least keep up with inflation is family friendly. Bumping that cap from the current $455 to $984 a week wouldn't just cover 6.1 million more workers at the lower end of the salaried scale. "The increase," Heidi Shierholz concluded, "would disproportionately help women, blacks, Hispanics, workers under age 35, and workers with lower levels of education because these workers are more likely than other subgroups to have lower salaries that put them below the proposed new threshold." Under Hanauer's more aggressive proposal to triple the annual salary threshold from $23,000 to $69,000, roughly 10.4 million workers would gain overtime pay coverage.

    As the Center for American Progress warned, inaction is not an option for the American middle class:

    Americans could once boost their paychecks by boosting their hours at work because federal overtime rules guaranteed them time-and-a-half pay for hours worked beyond 40 hours per week. But only 8 percent of full-time salaried workers have guaranteed overtime rights today. If current trends continue, no salaried workers will qualify for guaranteed overtime by 2026. For many Americans, it is simply no longer the case that if one works harder and longer, he or she will be rewarded.

    But if millions of new workers would be rewarded by executive action on overtime rules, employers would not necessarily be punished with the burden of higher labor costs. As Bernstein and Eisenbrey explain, business owners will respond to higher overtime pay by lowering their baseline wage or hiring new workers to avoid the higher overtime hours and costs. In the former case, the risks fall on workers if they end working more overtime hours than originally forecast. But for venture capitalist Nick Hanaeur, the profit-making calculus is very simple. "Honestly, I'm beginning to run out of customers."

    The twisted irony is, when you work more hours for less pay, you hurt not only yourself, you hurt the real economy by depressing wages, increasing unemployment and reducing demand and innovation. Ironically, when you earn less, and unemployment is high, it even hurts capitalists like me.

    And when the middle class is suffering, it hurts the Democratic Party, too. Which is why President Obama should do the one thing he can do to help right now. Boost overtime pay and give millions of middle class workers a raise.

    Perrspective 9:00 AM | Permalink | Comments (0) | Share

    December 17, 2014
    Cheney Reprises His Iran-Contra Role to Defend Bush Administration Torture

    "The bottom line, however, is that the mistakes...were just that," Dick Cheney announced to the nation, "mistakes in judgment, and nothing more."

    There was no constitutional crisis, no systematic disrespect for ''the rule of law,'' no grand conspiracy, and no Administration-wide dishonesty or coverup. In fact, the evidence will not support any of the more hysterical conclusions the committees' report tries to reach.

    But that confident proclamation didn't happen last week, but on November 18, 1987. And then Congressman Cheney wasn't defending a Republican president from charges of detainee torture, but from the unpunished criminality that was the Iran-Contra affair.

    That's right. Swap Ronald Reagan for George W. Bush and replace "enhanced interrogation techniques" with "traded arms for hostages," and you'd have the minority Republican response to the Congressional Iran-Contra investigation. Joined then and as now by Senator Orrin Hatch (R-UT) among other GOP leaders, Cheney didn't just denounce the majority's findings as "clearly case in such a partisan tone," but insisted President Reagan had the constitutional authority to ignore the Congressional ban on aid to the Nicaraguan Contras:

    "Judgments about the Iran-Contra Affair ultimately must rest upon one's views about the proper roles of Congress and the President in foreign policy. ... [T]hroughout the Nation's history, Congress has accepted substantial exercises of Presidential power -- in the conduct of diplomacy, the use of force and covert action -- which had no basis in statute and only a general basis in the Constitution itself. ... [M]uch of what President Reagan did in his actions toward Nicaragua and Iran were constitutionally protected exercises of inherent Presidential powers. ... [T]he power of the purse ... is not and was never intended to be a license for Congress to usurp Presidential powers and functions."

    (Interestingly, not even Bush's torture architect John Yoo would have agreed with Cheney's radical assessment of unlimited executive power. As Yoo put it in February 2010, "if the Congress doesn't like it they can cut off funds for it or they can impeach him.")

    But for Cheney, that President Reagan negotiated with terrorists and diverted the proceeds to the Contras in violation of the Boland Amendment was worse than a crime (which he claims it wasn't). It was a blunder.

    The Iran-Contra scandal, as you'll recall, almost laid waste to the Reagan presidency. Desperate to free U.S. hostages held by Iranian proxies in Lebanon, President Reagan provided weapons Tehran badly needed in its long war with Saddam Hussein (who, of course, was backed by the United States). In a clumsy and illegal attempt to skirt U.S. law, the proceeds of those sales were then funneled to the contras fighting the Sandinistas in Nicaragua. And as the New York Times recalled, Reagan's fiasco started with an emissary bearing gifts from the Gipper himself:

    A retired Central Intelligence Agency official has confirmed to the Senate Intelligence Committee that on the secret mission to Teheran last May, Robert C. McFarlane and his party carried a Bible with a handwritten verse from President Reagan for Iranian leaders.

    According to a person who has read the committee's draft report, the retired C.I.A. official, George W. Cave, an Iran expert who was part of the mission, said the group had 10 falsified passports, believed to be Irish, and a key-shaped cake to symbolize the anticipated ''opening'' to Iran.

    As his diaries published in 2005 show, President Ronald Reagan was under no illusions about either the illegality of the scheme or that it constituted anything other than a swap of arms for hostages. On Thursday, December 5, 1985, Reagan wrote in his diary:

    N.S.C. briefing--probably Bud's last. Subject was our undercover effort to free our 5 hostages held by terrorists in Lebanon. It is a complex undertaking with only a few of us in on it. I won't even write in the diary what we're up to.

    Nevertheless, just two days later the Gipper wrote about that very topic. On Saturday, December 7, Reagan noted in his diary:

    Day opened with "Rex" (our new dog) on our bed. I then had a meeting with Don R., Cap W. and Bud M., John P., Geo. Schultz and Mahan of C.I.A. This had to do with the complex plan which could return our 5 hostages & help some officials in Iran who want to turn that country from its present course & on to a better relationship with us. It calls for Israel selling some weapons to Iran. As they are delivered in installments by air our hostages will be released. The weapons will go to the moderate leaders in the army who are essential if there is to be a change to a more stable govt. We then sell Israel replacements for the delivered weapons. None of this is a gift--the Iranians pay cash for the weapons--so does Israel.

    George S. Cap and Don are opposed--Cong. has imposed a law that we can't sell Iran weapons or sell any other country weapons for resale to Iran. Geo. also thinks this violates our policy of not paying off terrorists. I claim the weapons are for those who want to change the govt of Iran & no ransom is being pd. for the hostages. No direct sale would be made by us to Iran but we would be replacing the weapons sold by Israel.

    In case there was any doubt that Ronald Reagan blessed the delivery of hundreds of advanced anti-tank weapons to Tehran, the President himself removed it with his January 17, 1986 diary entry, "I agreed to sell TOWs to Iran."

    The rest, as they say, is history. Or more accurately, rewritten history. As President Reagan told the American people in a nationally televised address on March 4, 1987:

    "A few months ago I told the American people I did not trade arms for hostages. My heart and my best intentions still tell me that's true, but the facts and the evidence tell me it is not. As the Tower board reported, what began as a strategic opening to Iran deteriorated, in its implementation, into trading arms for hostages."

    Still, in his minority report eight months later, Congressman Cheney protested that "in our view, every single one of the committees' legal interpretations is open to serious question." Why? Because then as now, he charged, the report was "seriously flawed" because it was conducted in a partisan fashion. Of that "one-sided legal" brief that happened to contain the signatures of Republicans Warren Rudman (R-NH) and Lee Hamilton (R-IN), Cheney and his Iran-Contra defenders declared:

    Sadly, the committees' report reads as if it were a weapon in the ongoing guerrilla warfare, instead of an objective analysis. Evidence is used selectively, and unsupported inferences are drawn to support politically biased interpretations. As a result, we feel compelled to reject not only the committees' conclusions, but the supposedly ''factual'' narrative as well...The narrative is not a fair description of events, but an advocate's legal brief that arrays and selects so-called ''facts'' to fit preconceived theories.

    Fast forward to 2014 and Dick Cheney's talking points have barely changed. Earlier this year, Cheney prepared for the release of the Senate torture report by calling President Obama's incontrovertible conclusion that "we tortured some folks" a "disgusting" and "despicable" slander of CIA personnel who carried out the Bush Torture Team's legal blueprint. 27 years after he served as the GOP attack dog against the Iran-Contra report, as Cheney explained in 2009 to his hagiographer and 9/11 fabulist Stephen Hayes, he's still doing it all for the "little guys" who were just following orders:

    "I went through the Iran-Contra hearings and watched the way administration officials ran for cover and left the little guys out to dry. And I was bound and determined that wasn't going to happen this time. I think to George Tenet's credit--I don't agree with George on a lot of stuff--but I think he was of the same view and that's why we had all of these requests coming through for policy guidance and for legal opinions. And this time around I'll do my damndest to defend anybody out there--be they in the agency carrying out the orders or the lawyers who wrote the opinions. I don't know whether anybody else will, but I sure as hell will."

    Which means that whether a Republican administration negotiate with terrorists, swaps arms for hostages, or orders terror suspects waterboarded or rectally violated, it's all legal if the President says so. For Dick Cheney, it's the same as it ever was.

    Perrspective 11:00 AM | Permalink | Comments (0) | Share

    December 15, 2014
    The Evil of Banality

    Like most Americans, I was horrified to learn about the shocking brutality contained in the declassified Senate torture report. Under a legal edifice erected by the Bush administration, CIA interrogators subjected terror detainees to large scale, state-sanctioned sadism. Thanks to these horrors perpetrated in all of our names, terms of art like "rectal hydration" and "rape by broomstick" are now part of the American national security lexicon. (The latter had already been introduced by the NYPD in the case of Abner Louima during the height of "Giuliani Time.") These offenses didn't just "shock the conscience"; they violated U.S. and international law. They were, as President Obama lamented, "contrary to who we are."

    But what if the president of the United States is wrong? What if, unlike me, most Americans weren't horrified by torture as an instrument of national defense? What if waterboarding, extreme sleep deprivation, and other tactics are no longer contrary to American values? What if Americans believe, as John Yoo does, that torture must be defined as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death?"

    That is the grotesque possibility suggested by recent polling on the subject of torture. As polling from AP, the Pew Research Center, and others has suggested, the American people increasingly believe torture of terror suspects can be justified. It may just be that a decade after the disgusting images from Abu Ghraib, the "debate" over torture has immunized to the reality. Perhaps years of repeated (though debunked) torture defenses, clashing claims that its efficacy "saved lives" and "prevented attacks," bureaucratic euphemisms such as "enhanced interrogation techniques" and catchy talking points like "bad apples" and "Club Gitmo"--and worse--have made the once unthinkable seem commonplace and even routine for many Americans.

    Writing in the Washington Post, Christopher Ingraham concluded, "Let's not kid ourselves: Most Americans are fine with torture, even when you call it 'torture.'" This week, the Pew Research Center offered some insight as to why:

    The use of practices like waterboarding began to surface publicly in press reports not long after 9/11, and when the Pew Research Center first surveyed on the subject in July 2004, a narrow majority (53%) said the use of torture to gain important information from suspected terrorists could be only rarely or never justified.

    Opinion has shifted since then, with more Americans finding torture acceptable. In August 2011, a narrow majority (53%) of Americans said the use of torture could be often or sometimes justified, while 42% said it could only rarely be justified or not be justified at all.

    A more recent poll by Associated Press/NORC conducted in August 2013 found similar results. Half said the use of torture could sometimes or often be justified while 47% said it could rarely or never be justified.

    Unsurprisingly, the surveys show a massive partisan chasm on the question of torturing suspected terrorists. Pew's 2011 survey found that a substantial majority of Republicans (71 percent) said torture could be at least sometimes justified, compared with 51 percent of independents and 45 percent of Democrats. In the AP/NORC poll two years later, 66 percent of Republicans backed use of torture in dealing with terrorists compared with 53 percent of independents and 39 percent of Democrats.

    That persistent gap is no coincidence. The Bush White House, its Republican allies in Congress, the conservative commentariat online and off, and the entire Fox News network for years have assured Americans that "the United States does not torture." In 2007, then-GOP White House hopeful Rudy Giuliani compared torture to running for president; this week, his Fox News colleague and attorney Kimberly Guilfoyle likened it to taking the bar exam. Even the term torture itself was semantically waterboarded, replaced among loyal Bushies, defensive Republicans, Fox News talking heads and, as current CIA Director John Brennan has showed once again, with the euphemism enhanced interrogation techniques. And as Harpers' Scott Horton among others reminded us in 2007, Team Bush's favorite term sounded better in the original German:

    Before there were "enhanced interrogation techniques," there was verschärfte Vernehmung, (which means "enhanced interrogation techniques") developed by the Gestapo and the Sicherheitsdienst in 1937 and subject to a series of stringent rules. Now, as we have seen previously, there were extremely important differences between the Gestapo's interrogation rules and those approved by the Bush Administration. That's right - the Bush Administration rules are generally more severe, and include a number of practices that the Gestapo expressly forbade.

    As Andrew Sullivan pointed out, during the war those German officers who went beyond the verschärfte Vernehmung were punished. And after the war, as Horton helpfully recalled, those defended their brutality at the Nuremberg trials by saying they were "just following orders" or acting to prevent imminent attacks were put to death.

    Undefeated and unrepentant, since leaving office George W. Bush and Dick Cheney haven't just confessed their support for waterboarding and other EITs they ordered; they bragged about it. (That prompted Scott Horton to remark, "What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants.") So, now as then, Bush, Cheney, Alberto Gonzales, John Yoo, Condi Rice, and the rest of the Bush Torture Team have followed a simple script. What the United States did wasn't torture, was legal and, in any event, saved American lives. This week, the former head of the CIA's clandestine service Jose Rodriquez regurgitated those sound bites in a single sentence:

    The interrogation program was authorized by the highest levels of the U.S. government, judged legal by the Justice Department and proved effective by any reasonable standard.

    Of course, Rodriguez never wanted Americans to make that judgment on their own. That's why he ordered the destruction of 92 videotapes showing detainee interrogations, ensuring neither Congress nor the public would ever see them.

    Now the report of the Senate Select Committee on Intelligence rejected each and every one of the claims that torture "worked." But largely overlooked in the imbroglio this week is the most important issue of all--that is, the question isn't whether torture worked (it didn't), but whether it was legal (which it wasn't.) As I documented in detail elsewhere, the regime of detainee torture blessed by the Bush administration and carried out by the CIA and its pain-for-profit contractors violated U.S. and international law. In his May 1988 signing statement accompanying the Convention Against Torture (CAT), President Ronald Reagan noted that it "marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment." As the Gipper explained in his message to the Senate:

    The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called "universal jurisdiction." Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.

    In 2011, former Bush National Security Adviser and Secretary of State Condoleezza Rice offered a novel legal theory to students at Stanford University:

    The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture...The United States was told, we were told, nothing that violates our obligations under the Convention Against Torture, and so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture. [Emphasis mine]

    Of course, Richard Nixon couldn't have provided a more sinister justification of President Bush's lawlessness. But whereas Nixon and his henchmen faced impeachment and prosecution for their crimes, no one from the Bush administration has paid any price at all. Last summer, John Yoo was awarded an endowed faculty chair at the UC Berkeley School of Law. Bush appointee Jay Bybee remains on the federal bench. Cheney's legal alchemist David Addington is now creating alternative realities at the Heritage Center. Psychologist James Mitchell, one of the consultants who helped the Bush administration render the Geneva Conventions quaint, didn't lost his professional credentials, even after claiming, "I'm just a guy who got asked to do something for his country." Jose Rodriguez, who as head of the CIA's clandestine service personally ordered the destruction of dozens of interrogation videotapes, is a conservative hero who preemptively smeared the Senate Intelligence Committee report on the CIA torture program despite having never read a word of it. Meanwhile, Dick Cheney appears regularly on your television screen to accuse President Obama of treason. As for Cheney's former Oval Office sock puppet, George W. Bush, he is free to paint himself in the shower and give speeches to "replenish the ol' coffers."

    It's no wonder that a majority of Americans now believes torture is sometimes or often justified to extract information from prisoners the U.S. swept up during the "Global War on Terror." When you can turn off the latest episode of 24 only to watch your congressional rep cite Jack Bauer as a role model, torture becomes expected, assumed, routine, and banal. What the United States once executed Japanese and German soldiers for doing is now presumed to an essential part of the American war-fighting tool kit Zero Dark Thirty told us so. Apparently, the Inquisitor isn't a villain after all, just as long as he's on our side. The unimaginable is now the unexceptional, the unnatural the new normal.

    This normalization of torture isn't a unique phenomenon. In 1983, Democratic Sen. Daniel Patrick Moynihan coined a term for it: "Defining Deviancy Down." Looking at crime, mental illness, family dissolution and other societal ills, Moynihan argued that, for reasons good and bad, Americans increasingly considered as normal behavior once viewed as pathological. He famously concluded, "We are getting used to a lot of behavior that is not good for us." So it may be with the acceptance of torture, the acknowledgement of which may be simply too shameful--and too painful--for many during a period of national fear and anxiety over Al Qaeda, ISIS, and Iran. And as Moynihan, conservatives' favorite liberal, concluded:

    As noted earlier, Durkheim states that there is "nothing desirable" about pain. Surely what he meant was that there is nothing pleasurable. Pain, even so, is an indispensable warning signal. But societies under stress, much like individuals, will turn to pain killers of various kinds that end up concealing real damage. There is surely nothing desirable about this. If our analysis wins general acceptance, if, for example, more of us came to share Judge Torres's genuine alarm at "the trivialization of the lunatic crime rate' in his city (and mine), we might surprise ourselves how well we respond to the manifest decline of the American civic order. Might.

    Might, indeed. As studies by Paul Gronke and Darius Rejali of Reed College and their colleagues suggest, drilling deeper into public opinion--and asking the right questions--paints a different picture of Americans being "fine with torture."

    For starters, the Americans with the most to lose by the nation's de facto acceptance of torture--members of the U.S. armed services--are the ones most opposed to it.

    In their 2009 analysis, Gronke, Rejali et al. found that the press and political leaders alike were mistaken to look at the aggregate polling data and conclude that the public was behind them. Looking at the 10 interrogation techniques in the infamous Bybee memo and 13 laid out in the Bradbury memo, the authors asked, "Does public approval change when painful interrogation techniques are not called torture?" Their answer:

    When asked about actual torture practices such as waterboarding or sexual humiliation, public support mostly collapses.

    The lessons for all of us seem clear. First, name it and shame it. Then repeat. With its stomach-turning portraits of American intelligence personnel forcing prisoners to stand on broken limbs, to freeze to death on cell floors, to suffer sexual humiliation, to withstand days without sleep, to undergo anal violation (real and threatened) and simulate drowning and death, the Senate report doesn't let us look away from the horrors committed in our name. Even more important, the American Torquemadas and the Bush administration officials who provided cover for them must face prosecution for their violations of U.S. law and treaty commitments. Punishing this lawlessness is not, as Republicans along with President Obama and Attorney Eric Holder posit, about "criminalizing policy differences" or "looking backwards, not forward." Otherwise, as E.J. Dionne and Jonathan Turley among others rightly warn, the United States may very well torture again. As the CIA's John Brennan defined deviancy down during his press conference Thursday:

    As far as what happens in the future, if there is some kind of challenge that we face here, the Army field manual is the established basis to use for interrogations. We CIA are not in the detention program. We are not contemplating at all getting back into the detention program, using any of those EITS, so I defer to the policymakers in future times when there is going to be the need to ensure that this country stays safe if we face a similar kind of crisis.

    To put it another way, welcome to the new normal. And this new normal is an evil place to be.

    Perrspective 5:05 PM | Permalink | Comments (0) | Share

    John Yoo's Torture Check List: Rectal Violation is Not Allowed, Crushing a Child's Testicles is No Problem

    As Dick Cheney and the usual suspects circle the wagons to defend the Bush Torture Team, one its most notorious members has been particularly active in rhetorically waterboarding the Senate torture report. On Tuesday, John Yoo, who at the Bush Justice Department's Office of Legal Counsel defined torture as "in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death," published op-eds at Time and the New York Daily News. And on Sunday, Yoo appeared on CNN to defend the indefensible.

    By now, it should come as no surprise that the hyper-partisan Yoo suggested that the Senate Intelligence Committee's documentation of grotesque interrogation practices was probably fabricated. But what is shocking is that John Yoo is troubled by the illegality of sadistic tactics like "forced rectal feeding." After all, back in 2005 the architect of George W. Bush's detainee torture declared the President had the authority to interrogate a terror suspect by "crushing the testicles of the person's child."

    When CNN host Fareed Zakaria asked him about CIA techniques like "forced rectal feeding", "threatening to rape the mothers of prisoners" and "people with broken limbs being forced to stand for hours and hours," Attorney Yoo said that would be against the rules (if it in fact it happened):

    "Those are very troubling examples. They would not have been approved by the Justice Department. They were not approved by the Justice Department at the time...They were not supposed to be done and those people who did those are at risk legally because they were acting outside their orders."

    But during a December 2005 symposium in Chicago, Yoo argued that under his theory of the "unitary executive" and virtually unlimited presidential power as Commander-in-Chief, President Bush could legally order those tortures and much worse. Yoo was asked:

    "If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?"

    "No treaty," replied John Yoo, the former Justice Department official who wrote the crucial memos justifying President Bush's policies on torture, "war on terror" detainees and domestic surveillance without warrants. Yoo made these assertions at a public debate in December in Chicago, where he also espoused the radical notion of the "unitary executive" -- the idea that the president as commander in chief is the sole judge of the law, unbound by hindrances such as the Geneva Conventions, and possesses inherent authority to subordinate independent government agencies to his fiat. This concept is the cornerstone of the Bush legal doctrine.

    Yoo's interlocutor, Douglass Cassel, professor at Notre Dame Law School, pointed out that the theory of the "unitary executive" posits the president above the other branches of government: "Also no law by Congress. That is what you wrote in the August 2002 memo" (one of Yoo's memos justifying torture). "I think it depends on why the president thinks he needs to do that," said Yoo.

    That flies in the face of what he told C-SPAN this week. "Looking at it now," Yoo said of disgusting offenses detailed by Senator Feinstein's Intelligence Committee report, "I think of course you can do these things cumulatively or too much that it would cross the line of the anti-torture statute." It also flies in the face of the entire legal edifice of limited presidential power Yoo erected for Bush. After all, Yoo declared that under Article II's Commander-in-Chief powers, the President could unilaterally order "a village...to be massacred" or cities vaporized with nuclear weapons. "My only point," he said, "is that the government places those decisions in the President, and if the Congress doesn't like it they can cut off funds for it or they can impeach him." And John Yoo didn't just argue that the United Nations Convention Against Torture places no barriers to the president's uses of so-called "enhanced interrogation techniques." Acts of Congress like the Foreign Intelligence Surveillance Act (FISA), he proclaimed in the PBS documentary "Cheney's Law," could not stop the president from conducting warrantless wiretapping and domestic surveillance of the American people:

    "I think that there's a law greater than FISA, which is the Constitution, and part of the Constitution is the president's commander-in-chief power. Congress can't take away the president's powers in running war. They are given to him by the Constitution, in the same way that Congress couldn't pass laws saying you can't invade Normandy or you can't place Europe first in World War II. There are some decisions the Constitution gives the president, and even if Congress passes a law, they can't seize that from him."

    And apparently, if the President of the United States orders the kidnapping of a detainee's child and the crushing of his testicles in order to extract intelligence, no power on John Yoo's earth can legally stop him.

    Perrspective 5:00 PM | Permalink | Comments (0) | Share

    Republicans Opposed Torture Report and 9/11 Commission, Too

    By now, most Americans can probably recite the conservative arguments against the Senate torture report by rote. After seeing Dick Cheney on TV, watching the parade of vein-bursting Republicans on the Senate floor or reading virtually identical columns from the likes of Charles Krauthammer, Rich Lowry and former CIA clandestine services boss Jose Rodriguez, the talking points are all familiar by now. The "partisan report" was "flawed" and a "travesty." The actions of "patriotic" intelligence personnel were the natural response to "bipartisan demands" after 9/11, including calls from the likes of Dianne Feinstein and Jay Rockefeller. Worst of all, raging right wingers claim Senate Democrats are giving "aid and comfort to the enemy" by providing "an after-action report" on American tactics and vulnerabilities.

    Now, if these sound bites sound familiar, they should. That's because many of the arguments Republicans are making to defend the Bush Torture Team now are the same ones they used to oppose the creation of the 9/11 Commission.

    Of course, you'd never know that reading Charles Krauthammer's rewriting of recent American history. Defending the state-sponsored sadism that violated U.S. and international law after the horror of the September 11 attacks, the former psychiatrist explained:

    We were so blindsided that we established a 9/11 commission to find out why. And we knew next to nothing about the enemy: its methods, structure, intentions, plans. There was nothing morally deranged about deciding as a nation to do everything necessary to find out what we needed to prevent a repetition, or worse.

    Just as long, the Republicans' best and brightest argued, doing everything necessary to prevent a repetition of 9/11 didn't include a commission to determine how 3,000 people were slaughtered on President Bush's watch.

    As you should recall, until they yielded to overwhelming public pressure, President Bush, Vice President Cheney and GOP leaders in Congress opposed the 9/11 Commission charged with learning the truth about the worst attack on the U.S. homeland.

    In May 2002, Republicans circled the wagons around President Bush after revelations that the administration had been warned about possible Al Qaeda plans to hijack an aircraft. But when Senate Democratic Leader Tom Daschle asked "Why did it take eight months for us to receive this information?" and called for a blue-ribbon commission to investigate, the GOP's top brass railed to Bush's defense. Daschle's Republican counterpart Trent Lott denounced the demands for an inquiry:

    "I really think there's nothing more despicable ... for someone to insinuate that the president of the United States knew there was an attack on our country that was imminent and didn't do anything about it. For us to be talking like our enemy, George W. Bush instead of Osama bin Laden, that's not right."

    Lott's colleague Kay Bailey Hutchison (R-TX) agreed:

    "I don't think that anyone should start pointing fingers in a personal way or suggest that people are trying to cover their political backsides. I just think that's ridiculous. I think we need to go forward. We need to be positive. There are failures. We need to get to the root of it and try to make our country more secure."

    Vice President Dick Cheney and the soon-to-be disgraced Tom DeLay took a different tactic, claiming an investigation into the catastrophe of 9/11 would itself hinder the war against Al Qaeda. As DeLay groused:

    "A public commission investigating American intelligence in a time of war is ill conceived and, frankly, irresponsible. We need to address America's challenges in intelligence gathering and terrorist prevention. But we don't need to hand the terrorists an after-action report."

    Cheney, meanwhile, suggested that trying to find out what President Bush knew and when he knew it would provide aid and comfort to the enemy:

    "An investigation must not interfere with the ongoing efforts to prevent the next attack, because without a doubt a very real threat of another perhaps more devastating attack still exists. The people and agencies responsible for helping us learn about and defeat such an attack are the very ones most likely to be distracted from their critical duties if Congress fails to carry out their obligations in a responsible fashion."

    For his part, President Bush echoed that assessment. As CBS reported on May 23, 2002:

    President Bush took a few minutes during his trip to Europe Thursday to voice his opposition to establishing a special commission to probe how the government dealt with terror warnings before Sept. 11.

    Mr. Bush said the matter should be dealt with by congressional intelligence committees.

    CBS News Correspondent Bill Plante reports that Mr. Bush said the investigation should be confined to Congress because it deals with sensitive information that could reveal sources and methods of intelligence. Therefore, he said, the congressional investigation is "the best place" to probe the events leading up to the terrorist attacks.

    "I have great confidence in our FBI and CIA," the President said in Berlin, adding that he feels the agencies are already improving their information sharing practices.

    Bush's reticence wasn't surprising, given the continuing revelations about the repeated warnings he received about Al Qaeda throughout the spring and summer of 2001. But that was then and this is now. And now, a Democrat sits in the White House. Which is why the Republicans who sought to block the 9/11 Commission and the "partisan" report on torture have launched the eighth investigation into the Benghazi tragedy in which four Americans were killed. After all, it was, as Senator Rand Paul (R-KY) explained, "one of the worst intelligence failures in our history."

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    December 12, 2014
    LDS Members Played Key Roles for Bush Torture Team

    The just-release Senate torture report is so horrifying that it is difficult to know where to begin. To be sure, shocking revelations about CIA "rectal hydration," rape by broomstick (also known to Fox News and New Yorkers as "Giuliani Time") and other acts of state-sponsored sadism ensure Americans won't soon forget the term "enhanced interrogation techniques" (EIT). As it turns out, EIT isn't the only acronym likely to be permanently associated with the Bush administration's regime of detainee torture. So, too, may LDS. That is, many of the leading legal architects and most bestial practitioners of U.S. torture are members of the Church of Jesus Christ of Latter-Days Saints.

    As the Salt Lake Tribune first fretted in April 2009, "LDS lawyers, psychologists had a hand in torture policies." At the top of that list of Mormon Torquemadas are John "Bruce" Jessen and James Mitchell, the two psychologists who designed and also later helped administer the vicious, violent and virtually worthless torture tactics. Many in the CIA itself worried about their regimen reverse-engineered from the American military's own SERE ("Survival, Evasion, Resistance, and Escape") program. As NBC News reported:
    John Rizzo, the acting CIA general counsel who met with the psychologists, wrote in his book, "Company Man," that he found some of what Mitchell and Jessen were recommending "sadistic and terrifying." One technique, he wrote, was "so gruesome that the Justice Department later stopped short of approving it."

    Earlier this year, James Mitchell defended himself by declaring, "I'm just a guy who got asked to do something for his country." Asked, that his, and paid over $80 million by the federal government. (Of course, one man's war crime is another man's business model, provided the second man is Mitt Romney.) Drs. Jesson and Mitchell started out as Air Force psychologists whose Spokane, Washington company then made millions from dispensing human misery:

    The CIA contractors who helped develop and operate the "enhanced interrogation techniques" that the agency used on terror suspects, including waterboarding, were paid more than $80 million, according to the Senate Select Committee on Intelligence report on the CIA's interrogation program released Tuesday.

    The contract was for more than $180 million, but the contractors had only received $81 million when their contract was terminated in 2009.

    But word of their pain-for-profit enterprise didn't lead to excommunication from their church, but instead greater esteem. In October 2012--three years after the ABC News segment above--the Spokane Spokesman-Review reported Jessen's elevation within the LDS:

    Bruce Jessen was proposed by Spokane Stake President James Lee, or "called" in the terminology of the Mormon faith, to be the bishop of Spokane's 6th Ward, approved by the Church of Jesus Christ of Latter-day Saints hierarchy in Salt Lake City and presented to the congregation on Sunday. He was unanimously accepted by some 200 in attendance, Lee said.

    As a bishop - an unpaid, part-time position that usually lasts several years - Jessen will take confessions and help people with their personal problems, Lee said. "They just try to help people with their lives, marriages or finances," he said.

    As it turned out, waterboarding was apparently not an ideal enhanced proselytization technique. As Joanna Brooks noted in Religion Dispatches later in October 2012, "Sources have confirmed that Jessen stepped down from the position last Sunday." If LDS wasn't put off by Jessen and Mitchell's past, the APA (the American Psychological Association), was horrified. Last month, APA announced it "will conduct an independent review into whether it colluded with or supported the government's use of torture in the interrogation of prisoners during the Bush administration."

    Meanwhile, one of the principal authors of the Bush administration handbook for Inquisitors isn't sitting in a prison cell, but on the bench of the 9th U.S. Circuit Court of Appeals. That's right, Judge Jay Bybee was one of the men who helped President Bush and Vice President Cheney render the Geneva Conventions "quaint." As Steve Sebelius wrote Tuesday in the Las Vegas Journal Review, it is "long past time to fire the torture judge." Working in the Office of Legal Counsel in 2002:

    Bybee signed off on memos that authorized agents of the U.S. government to engage in torture, in part by re-defining the term. According to the memos -- drafted by then-Office of Legal Counsel attorney John Yoo -- "torture" means severe pain that rises to the level of a serious physical injury "...such as death, organ failure, or serious impairment of body functions."

    And "a defendant must specifically intend to cause prolonged mental harm for the defendant to have committed torture," according to the memo. "Thus, if a defendant had a good faith belief that his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture."

    Waterboarding? No problem. Sleep deprivation? OK. Stress positions? Go for it. And if you go too far? "In that case, we believe that [a person accused of torture] could argue that his actions were justified by the executive branch's constitutional authority to protect the nation from attack."

    In these documents lay the seeds of America's torture program.

    The outsized Mormon influence on the Bush Torture Team didn't end there. As the Trib's David Irvine lamented back in 2009, "Take Latter-day Saint Timothy E. Flanigan, deputy White House counsel, who, along with David Addington, John Yoo, Alberto Gonzales, and Jim Haynes comprised the secretive "War Council" of lawyers -- a self-appointed group [Jane] Mayer describes as having virtually no experience in law enforcement, military service, counterterrorism or the Muslim world."

    Flanigan once told his LDS ward congregation that it was gratifying "to work in a White House where every day was begun with prayer." In 2005, prior to his rejection by the Senate to be Gonzales' deputy attorney general, Flanigan was asked whether waterboarding, mock executions, physical beatings and painful stress positions were off-limits. "[It] depends on the facts and circumstances... ." He went on: "'Inhumane' can't be coherently defined."

    As it turns out, his fellow Mormon and 2012 GOP presidential nominee Mitt Romney couldn't coherently define "inhumane," either. When asked if waterboarding constituted torture, the man who once promised to "double Guantanamo" declared simply, "I don't." (At that same town hall event in October 2011, would-be President Romney announced, "I will not authorize torture.") Romney didn't just have "binders full of women," but position papers on torture, too. And as the New York Times reported:

    In a policy proposal drafted by Mitt Romney's advisers in September 2011, Mr. Romney's advisers urge him to "rescind and replace President Obama's executive order" and permit secret "enhanced interrogation techniques against high-value detainees that are safe, legal and effective in generating intelligence to save American lives."

    That December, the former bishop and former governor Romney put it this way:

    "We'll use enhanced interrogation techniques which go beyond those that are in the military handbook right now."

    Now, none of this is to say that either most Mormons or LDS theology itself endorses the vindictive and counterproductive brutality of the Bush torture enthusiasts. Far from it. As Brooks' explains, in 2005 the LDS Church released a statement "condemning inhumane treatment of any person under any circumstance." And as Mormon Studies expert Professor Patrick Mason has told Brooks:

    Mormonism has "no systematic theology" on issues like human rights or poverty or war. Its view of morality is "highly individualized."

    But while there cannot be guilt by association, there also cannot be silence. (Among potential 2016 GOP White House hopefuls, Mitt Romney among others has yet to weigh in on the Senate Intelligence Committee's report.) American torture was an abomination. Sadly, many of those who enabled and defended it just happen to be prominent members of the fastest-growing faith in the United States. Yet so far, they have faced not punishment but only prosperity.

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    December 9, 2014
    President Obama's Nuclear Option on Torture

    As the year draws to a close, the only question in Washington appears to be how--and not whether--Republicans will seek payback against President Obama for his executive action deferring the deportations of four million undocumented immigrants. While House Speaker John Boehner (R-OH) and soon-to-be Senator Majority Leader Mitch McConnell (R-KY) want to defer retribution until the new Congress is seated in January, Republican hardliners want to damage or even blow up the government right now. On Thursday, the House passed a proposal from Rep. Ted Yoho (R-TX) denouncing and defunding the deferred deportations, a bill certain to die in the Senate. In the meantime, 2016 White House hopeful Ted Cruz has once again called for shutting down the federal government and blocking all of President Obama's non-security related executive and judicial nominees. Some have demanded he be prevented from delivering his State of the Union address, while others have called for Obama's censure (itself an unconstitutional tactic) and even his impeachment.

    But while many of the GOP's best and brightest want to torpedo the federal government over Barack Obama's immigration actions that have both the law and historical precedent on their side, actual presidential lawlessness remains unpunished. As this week's release of the Senate Intelligence Committee's highly redacted torture report will remind Americans, under President George W. Bush and Vice President Dick Cheney, the United States brutalized terror detainees in ways that both shock the conscience and violate U.S. and international law. Yet Republicans Bush and Cheney escaped prosecution only because President Obama of all people chose to protect them.

    The Senate Intelligence Committee's report, the result of a five-year, $40 million investigation, will be important for what it says and for what it doesn't. As Dan Froomkin pointed out, the public will see not the full 6,300 report, but only a 480 summary first scrubbed by the CIA aided and abetted by the Obama White House. The names of CIA personnel who performed so-called "enhanced interrogation techniques" will be redacted, as will be the nations home to the "black prisons" where terror prisoners were "renditioned." The Senate findings won't even use the word, "torture." And as McClatchy explained in October, "the Senate's inquiry into CIA torture sidesteps blaming Bush, aides":

    A soon-to-be released Senate report on the CIA doesn't assess the responsibility of former President George W. Bush or his top aides for any of the abuses of the agency's detention and interrogation program, avoiding a full public accounting of one of the darkest chapters of the war on terror.

    As an unnamed source told McClatchy:

    "This report is not about the White House. It's not about the president. It's not about criminal liability. It's about the CIA's actions or inactions...It does not look at the Bush administration's lawyers to see if they were trying to literally do an end run around justice and the law."

    That the torture occurred is beyond dispute, and not just because President Obama nonchalantly acknowledged "we tortured some folks." During his May 2013 speech at the National Defense University, President Obama declared:

    In some cases, I believe we compromised our basic values -- by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law... We unequivocally banned torture, affirmed our commitment to civilian courts, worked to align our policies with the rule of law, and expanded our consultations with Congress.

    Last month in Geneva, the U.S. delegation at the quadrennial review of the United Nation's Convention Against Torture made a very matter of fact admission that America had, in fact, committed torture. As the New York Times reported:

    In a two-day presentation in Geneva, the American delegation acknowledged that the United States had tortured terrorism suspects after the Sept. 11 attacks. It emphasized, however, that the government had since tightened its rules, including with a 2005 statute against using cruelty and a 2009 executive order by President Obama that limits interrogators to a list of techniques in an Army field manual.

    But you don't have to take the Obama administration's word for it. President Bush and Vice President Cheney didn't just confess to ordering the waterboarding of Al Qaeda detainees; they boasted about it.

    President Bush's endorsement of the use of waterboarding and other enhanced interrogation techniques against 9/11 mastermind Khalid Sheikh Mohammed and other terrorism suspects came during an appearance before a business audience in Grand Rapids, Michigan in June 2010. As CNN reported:

    "Yeah, we waterboarded Khalid Sheikh Mohammed," the former president said during an appearance at the Economic Club of Grand Rapids, Michigan, according to the Grand Rapids Press.

    "I'd do it again to save lives," he added.

    If that sounds familiar, it should. That February, Dick Cheney bragged to ABC's Jonathan Karl is almost the exact same terms:

    "I was a big supporter of waterboarding. I was a big supporter of the enhanced interrogation techniques..."

    And in that same interview, Cheney confirmed that the both Bush legal team that invented the spurious rationale for detainee torture and those implementing it were merely following orders:

    "The reason I've been outspoken is because there were some things being said, especially after we left office, about prosecuting CIA personnel that had carried out our counterterrorism policy or disbarring lawyers in the Justice Department who had -- had helped us put those policies together, and I was deeply offended by that, and I thought it was important that some senior person in the administration stand up and defend those people who'd done what we asked them to do."

    There are only two problems with the Bush-Cheney tag team defense of waterboarding. The first, as the Senate torture report is expected to once again confirm, is that it didn't save lives. As ThinkProgress noted:

    Waterboarding Mohammed 183 times didn't save any lives. In fact, Mohammed told U.S. military officials that he gave false information to the CIA after withstanding torture. Additionally, a former Special Operations interrogator who worked in Iraq has stated that waterboarding has actually cost American lives: "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."

    The second problem for the Bush torture team is the one President Ronald Reagan raised in his May 1988 signing statement accompanying the Convention Against Torture (CAT). Reagan noted that it "marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment." As the Gipper explained in his message to the Senate:

    The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called "universal jurisdiction." Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.

    To put it another way, American and international law doesn't give Barack Obama--or any American President--the choice to decide whether "to look forward as opposed to looking backwards" when it comes to torture practiced by the United States. It's no wonder the UN's CAT Committee expert Alessio Bruni asked Assistant Secretary of State Tom Malinowski "if the delegation could give an example of prosecution of public official violating this legal provision."

    As Marjorie Cohn detailed in October 2012, the United States has "a legal duty to prosecute torturers":

    The US has a legal duty to prosecute those responsible for torture and abuse, or extradite them to countries where they will be prosecuted. When we ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), we promised to prosecute or extradite those who commit, or are complicit in the commission, of torture. The Geneva Conventions also mandate that we prosecute or extradite those who commit, or are complicit in the commission of, torture.

    In February 2010, Scott Horton pointed out that the while legal action against members of the Bush administration would be an extremely difficult task, in this case the prosecutors would have one major piece of evidence in their favor:

    Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?

    As a horrified Horton pondered in amazement:

    What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants.

    Ironically, George Washington University law professor Jonathan Turley thought so as well. Turley, the self-proclaimed crusader against over-reaching executive power, is now leading the House GOP's lawsuit against President Obama implementation of the Affordable Care Act. Writing on February 15, 2010, Turley lamented that President Obama had turned his back on the law:

    It is an astonishing public admission since waterboarding is not just illegal but a war crime. It is akin to the vice president saying that he supported bank robbery or murder-for-hire as a public policy.

    "Because it would have been politically unpopular to prosecute people for torture," Turley later wrote, "the Obama Administration has allowed officials to downgrade torture from a war crime to a talking point." And, as we'll see below, a Republican talking point at that.

    Even he before he was sworn in, President-elect Obama made it clear that the Bush, Cheney and their torture architects need not fear punishment from him:

    "We need to look forward as opposed to looking backwards."

    From a political and economic perspective, Obama's fear of looking into that rearview mirror was understandable. After all, the economy he inherited from President Bush was in freefall. In the last quarter of 2008, GDP collapsed by 8.9 percent; 2.2 million jobs evaporated in the first quarter of 2009 alone. With the economy requiring immediate action and his ambitious agenda for 2009 before Congress, President Obama was afraid to risk a total political conflagration in Washington by launching the kind of investigation the Bush administration's possible war crimes demanded.

    So, Obama signaled to Team Bush and its Republicans allies there would be no accountability for their high crimes and misdemeanors. And he did so by reducing war crimes to a talking point conservatives love most: "criminalizing politics." During his confirmation hearings on January 16, 2009, Attorney General nominee Eric Holder declared, "waterboarding is torture." But he also reassured Republicans on the Senate Judiciary Committee about something else:

    "I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don't want to do that."

    Ultimately, President Barack Obama never prosecuted anyone involved in the design and execution of President Bush's program of detainee torture. While the memos authorizing these potential war crimes have seen the light of day, those who ordered and perpetrated them did not. Attorney General Holder announced, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." (Ultimately, none were, as Holder in August 2012 ended his last investigation into two detainee deaths. President Obama went further in seemingly backing away from any legal action against the Bush torture team:

    "In releasing these memos, 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...

    This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."

    But while Obama was counseling reflection, Republicans and their amen corner were promising retribution if the new President did anything more. If Republican war criminals were prosecuted, conservatives warned, Republicans would launch a scorched-earth response to metaphorically burn Washington to the ground.

    Powerline's John Hinderaker made that threat in a piece titled, "Criminalizing Conservatism." "Many liberals don't just want to defeat conservatives at the polls, they want to send them to jail," he wrote, adding, "Toward that end, they have sometimes tried to criminalize what are essentially policy differences." In a scathing editorial on April 23, 2009 titled, "Presidential Poison," the Wall Street Journal went on the attack using the GOP's tried and untrue criminalizing politics canard:

    Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret...

    Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow...

    Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party's desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.

    But over five years later, no "patriotic official" has been indicted, no judges have been impeached and no professor has been stripped of his academic tenure--not even the one who defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. Last summer, John Yoo was awarded an endowed faculty chair at the UC Berkeley School of Law. Bush appointee Jay Bybee remains on the federal bench. Cheney's legal alchemist David Addington is now creating alternative realities at the Heritage Center. Psychologist James Mitchell, one of the consultants who helped the Bush administration render the Geneva Conventions quaint, didn't lost his professional credentials, even after claiming, "I'm just a guy who got asked to do something for his country." Jose Rodriguez, who as head of the CIA's clandestine service personally ordered the destruction of dozens of interrogation videotapes, is a conservative hero who has smeared the soon-to-be released Senate Intelligence Committee report on the CIA torture program despite having never read a word of it. Meanwhile, Dick Cheney appears regularly on your television screen to accuse President Obama of treason. As for Cheney's former Oval Office sock puppet, George W. Bush is free to paint himself in the shower and give speeches to "replenish the ol' coffers."

    It didn't have to end this way. If President Obama followed the lead of candidate Obama ("Waterboarding is torture, and so are other 'enhanced interrogation techniques' like 'head-slapping' and 'extreme temperatures.' It's time to reclaim our values and reaffirm our Constitution."), the architects and perpetrators of American torture would be facing justice instead of comfortable post-White House careers. For his restraint, Barack Obama was rewarded by Republicans with unprecedented obstructionism, record-setting use of the filibuster, judicial nominations blocked at previously unheard of rates, government shutdowns and even the threat of default and a global economic meltdown. And now in response to his executive actions on immigration enforcement, his Republican foes are promising to do it all over again.

    Writing for Bloomberg News, Eli Lake and Josh Rogin summed up the battle over the release of the torture report produced by the Senate Intelligence Committee chaired by Dianne Feinstein (D-CA).

    The report's release will undoubtedly set off an argument over who prevailed in the fight, Feinstein or the CIA. But the more important debate will be over what needs to be done to ensure that whatever abuses the report reveals are prevented from happening again.

    Alas, President Obama long ago decided against what really needed to be done to prevent torture made in America from happening again. And unless he changes his mind and chooses the "nuclear option" that American law and treaty obligations require, the return of the waterboard is a near-certainty. As former Bush National Security Adviser and Secretary of State Condoleezza Rice explained to her students at Stanford University in 2011:

    "The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture...The United States was told, we were told, nothing that violates our obligations under the Convention Against Torture, and so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture." [Emphasis mine]

    Richard Nixon couldn't have provided a more sinister justification of President Bush's lawlessness. And when it comes to torture, the next Republican president will be free to once again make Bush's Law the law of the land.

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    December 7, 2014
    After Destroying Video Evidence, CIA's Rodriguez Slams Senate Torture Report

    After five years and $40 million, a declassified version of the Senate Intelligence Committee's torture report may finally be released next week. But in advance of its arrival, the CIA's former head of clandestine services has resurfaced again to declare the report "an egregious falsehood" and "a dishonest attempt to rewrite history." Of course, that is an outrageous and disgusting claim for Jose Rodriguez of all people to make. After all, it was the same Jose Rodriguez who personally ordered the destruction of dozens of video-taped detainee interrogations whose legality and effectiveness he now vouches for.

    In his Washington Post op-ed on Friday, Rodriguez mocks current CIA critics including Sens. Dianne Feinstein (D-CA) and Jay Rockefeller (D-WV) for having begged the agency after 9/11, "Do something! Do it now! Why didn't you do something sooner?" Moreover, he claims they gave tacit approval to waterboarding and other supposed "enhanced interrogation techniques" when they claimed in 2002 that the war on Al Qaeda would no longer be "business as usual." And yet just days after the United States admitted to the UN panel monitoring the Convention Against Torture that America had tortured terror detainees during Rodriguez' tenure, he protested:

    The interrogation program was authorized by the highest levels of the U.S. government, judged legal by the Justice Department and proved effective by any reasonable standard.

    In an earlier Washington Post piece in April, Jose Rodriguez assured Americans they could take his word for it:

    Certain senators have proclaimed how devastating the findings are, saying the CIA's program was unproductive, badly managed and misleadingly sold. Unlike the committee's staff, I don't have to examine the program through a rearview mirror. I was responsible for administering it, and I know that it produced critical intelligence that helped decimate al-Qaeda and save American lives...

    When portions of the report are released, I hope the CIA's response, pointing out its flawed analysis, is also made public. But before anything is released, authorities must ensure that we don't make the job of my successors, who are trying to prevent future terrorist attacks, any harder.

    Of course, it was Rodriguez who helped make impossible any objective evaluations of the interrogations of Al Qaeda operatives Abu Zubaydah and Abd al-Rahim al-Nashiri in a secret C.I.A. detention facility in Thailand. Earlier this year, the CIA's top lawyer at the time John Rizzo revealed Rodriguez acted without legal blessing:

    Rizzo even writes that he tried to stop the destruction of the tapes when he was told the decision was being teed up in 2005. He writes that Rodriguez sent the cable authorizing the destruction of the tapes without copying him or any other lawyers at the agency. "No names of CIA lawyers were on the coordination line of the cable Jose signed authorizing the tapes' destruction. Case closed. My guys never saw it before it went out," Rizzo wrote.

    In his own book (Hard Measures: How Aggressive C.I.A. Actions After 9/11 Saved American Lives), Rodriguez makes clear he left no detail to chance:

    "My chief of staff drafted a cable approving the action that we had been trying to accomplish for so long. The cable left nothing to chance. It even told them how to get rid of the tapes."

    Jose A. Rodriguez was never prosecuted for his destruction of those 92 tapes on November 29, 2005. In 2010, Bush appointee John Durham decided against bringing any charges. His lawyer, Robert Bennett, responded by declaring, "He deserves a medal, not an investigation." The right-wing echo chamber couldn't agree more. As Mona Charen put it in her December 2007 column ("Destroying CIA Tapes Deserves a Thank You"):

    In the next few months, his name will likely be dragged through the mud, and he will be vilified as a rogue official engaged in a massive cover-up. I think he deserves a medal...

    Even though he is likely to become a scapegoat, what he did was right. He protected not just his men but all of us. I, for one, thank him.

    Most Americans would probably prefer to read the Senate's torture report first before jumping to that conclusion. But they may not get the chance, because the Obama administration and in particular Secretary of State John Kerry are apparently getting cold feet about potential blowback from allied governments and intelligence services who participated in the Bush administration's regime of detainee rendition and torture. If Chairman Feinstein does not release the highly redacted, 480 page summary now, the incoming Republican Chairman could bury the report outright. As Oregon Senator Ron Wyden explained:

    "It is hardly surprising that there is an 11th-hour objection to releasing this vital report because there have been objections at every hour for quite some time. My own view is that many Americans will be deeply angered when they read this report about misdeeds and mistakes and out-and-out falsehoods. It is critically important that this report not be pushed under the rug, buried before the American people have a chance to see it."

    Meanwhile, Jose Rodriguez is happy to tell Americans everything they need to know about the interrogation programs he ran for President Bush. As he put it before having seen the Intelligence Committee's findings in April:

    "I ran the CIA interrogation program. No matter what the Senate report says, I know it worked."
    Perrspective 11:30 AM | Permalink | Comments (0) | Share

    December 5, 2014
    The Democrats' Missing Talking Points on Benghazi

    Two weeks ago, the House Intelligence Committee released its report on the 2012 Benghazi tragedy. Like the previous six probes by the State Department, internal watchdogs and other Congressional panels, the GOP-controlled House Intelligence Committee concluded there had been no stand-down order, no CIA intelligence failure and no cover-up in the killings of Ambassador Chris Stevens and three other Americans in Libya. Nevertheless, leading Republicans responded with a new set of talking points, calling Chairman Mike Rogers' report "full of crap" (Sens. Lindsey Graham and Jason Chaffetz) and suggesting "it might be time to rename the House 'Intelligence' Committee" (Senator Rand Paul).

    But as Rep. Trey Gowdy (R-SC) prepares to hold another hearing of his special House Benghazi investigation next week, frustrated Democrats have largely held their tongues. They did not accuse Republicans of "pointing fingers in a personal way" or "making Barack Obama the enemy." Democrats did not warn that "an investigation must not interfere with the ongoing efforts to prevent the next attack" or that the Gowdy panel will only serve to "don't need to hand the terrorists an after-action report."

    No, Democrats didn't say anything of those things. But Republicans did in opposition to the creation of the 9/11 Commission and its investigation into the slaughter of 3,000 people here during President Bush's watch.

    Before Republicans restart their chants of "cover up" and "worse than Watergate," they might pause to remember their party's reaction to calls to create an independent commission to investigate the September 11 attacks. After all, until they yielded to overwhelming public pressure, President Bush, Vice President Cheney and GOP leaders in Congress opposed the 9/11 Commission charged with learning the truth about the worst attack on the U.S. homeland.

    In May 2002, Republicans circled the wagons around President Bush after revelations that the administration had been warned about possible Al Qaeda plans to hijack aircraft. But when Senate Democratic Leader Tom Daschle asked "Why did it take eight months for us to receive this information?" and called for a blue-ribbon commission to investigate, the GOP's top brass railed to Bush's defense. Daschle's Republican counterpart Trent Lott denounced the demands for an inquiry:

    "I really think there's nothing more despicable ... for someone to insinuate that the president of the United States knew there was an attack on our country that was imminent and didn't do anything about it. For us to be talking like our enemy, George W. Bush instead of Osama bin Laden, that's not right."

    Lott's colleague Kay Bailey Hutchison (R-TX) agreed:

    "I don't think that anyone should start pointing fingers in a personal way or suggest that people are trying to cover their political backsides. I just think that's ridiculous. I think we need to go forward. We need to be positive. There are failures. We need to get to the root of it and try to make our country more secure."

    Vice President Dick Cheney and the soon-to-be disgraced Tom Delay took a different tack, claiming an investigation into the catastrophe of 9/11 would itself hinder the war against Al Qaeda. As Delay groused:

    "A public commission investigating American intelligence in a time of war is ill conceived and, frankly, irresponsible. We need to address America's challenges in intelligence gathering and terrorist prevention. But we don't need to hand the terrorists an after-action report."

    Cheney, meanwhile, suggested that trying to find out what President Bush knew and when he knew it would provide aid and comfort to the enemy:

    "An investigation must not interfere with the ongoing efforts to prevent the next attack, because without a doubt a very real threat of another perhaps more devastating attack still exists. The people and agencies responsible for helping us learn about and defeat such an attack are the very ones most likely to be distracted from their critical duties if Congress fails to carry out their obligations in a responsible fashion."

    For his part, President Bush echoed that assessment. As CBS reported on May 23, 2002:

    President Bush took a few minutes during his trip to Europe Thursday to voice his opposition to establishing a special commission to probe how the government dealt with terror warnings before Sept. 11.

    Mr. Bush said the matter should be dealt with by congressional intelligence committees.

    CBS News Correspondent Bill Plante reports that Mr. Bush said the investigation should be confined to Congress because it deals with sensitive information that could reveal sources and methods of intelligence. Therefore, he said, the congressional investigation is "the best place" to probe the events leading up to the terrorist attacks.

    "I have great confidence in our FBI and CIA," the President said in Berlin, adding that he feels the agencies are already improving their information sharing practices.

    Bush's reticence wasn't surprising, given the continuing revelations about the repeated warnings he received about Al Qaeda throughout the spring and summer of 2001. But that was then, and this is now. And now, a Democrat sits in the Oval Office, and his former Secretary of State Hillary Clinton seeks to replace him there. Which for Republicans can only mean one thing. It's time to ramp up the next round of Benghazi hearings. Kentucky Senator and 2016 White House hopeful Rand Paul explained why:

    "It was, in fact, one of the worst intelligence failures in our history, a strategic blunder that resulted in the murder of a U.S. ambassador and three other Americans... The ultimate blame lies with the Obama administration and more directly with Hillary Clinton who oversaw this tragedy during her tenure as secretary of state."

    If only Democrats had thought of that talking point after 9/11. So much for that other beloved GOP sound bite: "both sides do it."

    Perrspective 11:10 AM | Permalink | Comments (0) | Share

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