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The Office of Professional Responsibility (OPR) report on the torture memos is expected this week, and Newsweek's Michael Isikoff and Daniel Klaidman apparently have the initial leak, reporting not only that the report clears Yoo and Bybee of misconduct, but was "softened" from an earlier finding.

[A]n upcoming Justice Department report from its ethics-watchdog unit, the Office of Professional Responsibility (OPR), clears the Bush administration lawyers who authored the “torture” memos of professional-misconduct allegations.

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry....

Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

It's almost enough to make one respect Chertoff, however grudgingly, right along with Ashcroft and Comey who refused to sign off on recertifying the massive warrantless wiretapping program. Apparently Chertoff had enough respect for the rule of law to at least resist providing blanket immunity to CIA torturers. Predictably, as with the NSA spying program, Addington, Yoo, Bybee, and Gonzales found yet another use for the imperial presidency.

The sound you're about to hear, when the final report is finally released, will be an administration trying to slam a door shut on a monster in our nation's collective closet. But now that declaring the president is above the law now officially just shows "poor judgment," don't expect the monster to stay caged.

Originally posted to Daily Kos on Mon Feb 01, 2010 at 06:32 PM PST.

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Comment Preferences

  •  Justice not served (14+ / 0-)

    wtg obama.

    Game Over. The corporations win. And they will take us all down with their greed.

    by The Dead Man on Mon Feb 01, 2010 at 06:34:12 PM PST

  •  So, in other words... (9+ / 0-)

    the original report was subjected to "enhanced revision techniques" to get it to say what they wanted it to.

  •  You either follow the law, or you're a criminal (4+ / 0-)

    When I think of how the Clinton White House shuddered with every breeze blowing, fearful that any act, official or after work, would bring criminal charges down on them...

    And then I read this...

    I simply cannot believe my eyes.

    "I feel a lot safer already."--Emil Sitka

    by DaddyO on Mon Feb 01, 2010 at 06:37:13 PM PST

    •  "Just As Every Cop Is a Criminal and (1+ / 0-)
      Recommended by:
      SpiffPeters

      Every Sinner a Saint" (Sympathy for the Devil, the Stones)

      Look, folks, the sooner we face reality (selective application of the Law by the elitist wealthy class), the sooner we can start correcting this utter disaster.

      There's only one way to bring the giant down.

      Perhaps NOW you understand my sig line.

      "Essentially, Obama is irrelevant". Paul Craig Roberts

      by Superpole on Mon Feb 01, 2010 at 06:57:33 PM PST

      [ Parent ]

    •  Well, Clinton turned out 2b right. (0+ / 0-)

      Charges were brought down on him and he was impeached.  Political fact is sometimes very ugly and hard to swallow but it's fact none-the-less.  And the fact is that putting Dick and Shrub on trial could easily be spun as putting Capitalism on trial.  If that caught on, aided by the worries about U.S. becoming Socialist, then we've lost big time.  Deciding between opposing moral and political facts is not easy.  I'm glad I don't have to do it.  But, I'd rather accept the political facts because we achieve nothing if we lose.

      "There's really nothing I want out of the past except history." - Autoegocrat

      by rainmanjr on Mon Feb 01, 2010 at 09:44:40 PM PST

      [ Parent ]

      •  I might agree, but remember Gerald Ford? (0+ / 0-)

        His numbers PLUMMETED as soon as he pardoned Nixon. And he lost re-election because of it.

        This is much, much worse than the Watergate scandal. Torturing suspects to death in black prisons should be punished, not ignored. It will cost Obama to overlook these crimes, in more ways than just one.

        "I feel a lot safer already."--Emil Sitka

        by DaddyO on Tue Feb 02, 2010 at 12:46:45 PM PST

        [ Parent ]

  •  Without a doubt, those folks at Nuremberg (10+ / 0-)

    showed some mighty poor judgment.

    Now let's move on.

    •  Just a bunch of Bolshevik show trials (1+ / 0-)
      Recommended by:
      Dartagnan

      Just shows that Roosevelt, Truman, Eisenhower, and Patton were a bunch of closet communist sympathizers.

      Real Americans would have let 'em walk.  After all, they were just defending the fatherland...

      There is no planet B

      by Minerva on Mon Feb 01, 2010 at 06:52:14 PM PST

      [ Parent ]

    •  Those on trial in Nuremberg weren't.... (0+ / 0-)

      still icons of a Party still in power.  Dick and Shrub are still icons of their Party and of a good deal of Blue Dog constituents.  Those voters matter.  Alienating them won't help us pass our agenda, which is not being a creamy experience to begin with, or keep us in power.  Obama can not be seen as putting Capitalism on trial.

      "There's really nothing I want out of the past except history." - Autoegocrat

      by rainmanjr on Mon Feb 01, 2010 at 09:49:07 PM PST

      [ Parent ]

      •  Nixon wasn't an icon (0+ / 0-)

        And yet the public turned their backs on Ford because he pardoned Nixon.

        I think you're correct; this needs or NEEDED to be done very carefully. But it needed to be done, and it ain't gettin' done.

        And it is the Number One reason I will primary Obama, because at the very least INVESTIGATING the crimes of Bush & Cheney was the Number One reason I voted for Obama.

        Now tell me how many times Obama told us he would NOT prosecute those criminals during the campaign. Tell me. I'm waiting.

        Then I'll tell you I don't give a shit about his campaign, I give a shit about the law, and Obama's job to ENFORCE IT.

        "I feel a lot safer already."--Emil Sitka

        by DaddyO on Tue Feb 02, 2010 at 12:49:29 PM PST

        [ Parent ]

  •  Slap on the wrist for sanctioning torture (5+ / 0-)

    Justice in America has died. Mark the date.

    Please help the people of Haiti

    by DWG on Mon Feb 01, 2010 at 06:38:54 PM PST

    •  It died with the creation of the CIA. (2+ / 0-)
      Recommended by:
      DaddyO, DWG

      Cold hearted orb/That rules the night/Removes the colours From our sight/Red is gray and/Yellow white/But we decide/Which is right/And/Which is an Illusion

      by KingofSpades on Mon Feb 01, 2010 at 06:39:54 PM PST

      [ Parent ]

    •  The US has been doing stuff like this... (3+ / 0-)
      Recommended by:
      srkp23, Arabiflora, rainmanjr

      ... since we pardoned Japanese and German war criminals after WWII in order to get their secrets regarding biological and chemical weapons.

      Our history is dark, and awful. It doesn't make it right, but did you really expect it to change?

      I mean, honestly. President Nixon pardoned Lt. Calley. The list of sins goes on and on and on.

      Why should this administration be better, or different, than America's past?

      Solutions must run parallel to slogans. Otherwise, you're just a voice in the wind.

      by Page van der Linden on Mon Feb 01, 2010 at 06:48:20 PM PST

      [ Parent ]

      •  You must be joking... (0+ / 0-)

        You can't be serious.

        "Why should this administration be better, or different, than America's past?"

        You really think that anyone is buying that rationalization? After a long two-year campaign based on a theme of Change and Hope?

        And even if they didn't campaign on those two words...you really DIDN'T expect this administration to be better or different enough from the Bush administration to 1) not break the law of the Constitution and the Bill of Rights and 2) to punish those who do or did?

        I can't believe you. We've had our disagreements about nuclear proliferation in the past, and I'm willing to give you your due. But you just wrote something I can NEVER accept, and neither should any thinking progressive who can make an honest heartfelt critique of Obama's first year in office.

        He has been a disappointment to anyone with eyes to see and a progressive agenda. Worst of all, he only started FIGHTING last Friday. A fucking year LATE.

        What is up with THAT?

        "I feel a lot safer already."--Emil Sitka

        by DaddyO on Tue Feb 02, 2010 at 12:55:13 PM PST

        [ Parent ]

  •  ugh. If the report is true, (6+ / 0-)

    then that's a serious failure on the part of the Obama DOJ.  The evidence of the crimes by the Bush Administration is going to come out one way or the other -- trying to whitewash it makes the Obama Administration complicit.

  •  Dawn Johnsen needs to be confirmed NOW! (4+ / 0-)

    Cold hearted orb/That rules the night/Removes the colours From our sight/Red is gray and/Yellow white/But we decide/Which is right/And/Which is an Illusion

    by KingofSpades on Mon Feb 01, 2010 at 06:41:03 PM PST

  •  They Will All Go Free.... (9+ / 0-)

    My bet is that Holder doesn't prosecute anybody for torture, because he's scared stiff that bringing charges against any one of the perpetrators would open a big, ugly can of worms. Anyone being charged with a serious human rights crime would try to pass the buck up the chain of command, and Holder clearly doesn't want to go there.  Trials of Yoo and Bybee and Addington would lead to Cheney, and would reveal all sorts of dark secrets that would incriminate a whole lot of other people in Washington, so the wagons have been circled and none of then are going to be prosecuted. They are all going to go free. But we're the greatest nation on earth, right?

    Regulate banks, not bedrooms

    by Eagleye on Mon Feb 01, 2010 at 06:41:10 PM PST

    •  Fishbait is not the Problem (0+ / 0-)

      ...would open a big, ugly can of worms.

      NO, that's not it.

      is anyone here ready to face Reality? the entire premise of our economic system is to steal, errr, I mean "get the best possible price" for the numerous commodities we need to keep the economic engine running and keep the massive profits flowing to the top 2.5 percent.

      did you not recently hear T. Boone Pickens (Billionaire) state flat out "That oil is OURS".. regarding Iraq's oil reserves?

      you don't get the significance of that sort of mindset?

      "Essentially, Obama is irrelevant". Paul Craig Roberts

      by Superpole on Mon Feb 01, 2010 at 06:50:57 PM PST

      [ Parent ]

    •  deadeye dick... (0+ / 0-)

      can come out of his undisclosed location...


      larger version

      I didn't get Jack from Abramoff...I'm not a Republican!

      by nonnie9999 on Mon Feb 01, 2010 at 06:51:36 PM PST

      [ Parent ]

  •  This is the problem with "Look forward, not back" (8+ / 0-)

    Now our lack of response to those criminal actions behind us have set a precedent making it all but inevitable they'll happen again.

    One nation, indivisible.

    by Doctor Frog on Mon Feb 01, 2010 at 06:42:11 PM PST

    •  The Hague is looking into it. (0+ / 0-)

      I trust them to do the right thing than us.  As a nation that performed torture, I wouldn't trust our justice system on the issue since it would be a conflict of interest.

      Cold hearted orb/That rules the night/Removes the colours From our sight/Red is gray and/Yellow white/But we decide/Which is right/And/Which is an Illusion

      by KingofSpades on Mon Feb 01, 2010 at 06:44:25 PM PST

      [ Parent ]

      •  If we're not part of the ICC... (0+ / 0-)

        ... how can they "look into it"? Or are you referring to Dutch parliament?

        Seriously, what are you talking about?

        Solutions must run parallel to slogans. Otherwise, you're just a voice in the wind.

        by Page van der Linden on Mon Feb 01, 2010 at 06:46:36 PM PST

        [ Parent ]

        •  I just want to die. (4+ / 0-)
          Recommended by:
          DaddyO, Crazy like a fox, 0wn, Jyrinx

          I want to move away.  We have never been a nation to respect our laws.  I think someday, I'll go to Denmark and leave this shithole behind forever.

          (forgive me if I sound insulting, I'm in tears right now.  I was born in this nation and the accumulation of the past decade has made me want to get out of here.)

          Cold hearted orb/That rules the night/Removes the colours From our sight/Red is gray and/Yellow white/But we decide/Which is right/And/Which is an Illusion

          by KingofSpades on Mon Feb 01, 2010 at 06:49:23 PM PST

          [ Parent ]

          •  Dude, I hear you (2+ / 0-)
            Recommended by:
            Crazy like a fox, rainmanjr

            Just take the advice I gave someone last night about researching immigration laws first. You can't just get up and move someplace else; the rules are pretty complicated. Also, Europe has right-wingers that make some of our right-wingers look like hippies.

            It's worth it, though. If you can afford it, and if you're married to an EU citizen, you can pull it off.

            Solutions must run parallel to slogans. Otherwise, you're just a voice in the wind.

            by Page van der Linden on Mon Feb 01, 2010 at 06:51:45 PM PST

            [ Parent ]

      •  How is it a conflict of interest? We prosecute US (0+ / 0-)

        citizens all the time. We even prosecute government officials if they're low enough on the totem pole. Asking the Bush/Cheney DOJ to investigate themselves would be a conflict of interest obviously, but Obama's DOJ doing so isn't.

        If you mean it's not in our interest to prosecute rich and powerful people, then sure... but there's no legal conflict of interest here, just plain old fashioned political cowardice.

        One nation, indivisible.

        by Doctor Frog on Mon Feb 01, 2010 at 07:02:11 PM PST

        [ Parent ]

      •  In the end nothing at The Hague (1+ / 0-)
        Recommended by:
        rainmanjr

        None of the Bush cabal will ever be at The Hague. I am not a lawyer, or international law scholar, but this issue has had lots of diaries and comments here at DKOS. The bottom line is that while it is technically possible for The Hague to determine that it has jurisdiction, even though we are not signatories, it would require one of our NATO allies to spend a huge amount of domestic and international political capital confronting the Obama administration. It's not going to happen.

        "let's talk about that"

        by VClib on Mon Feb 01, 2010 at 08:26:33 PM PST

        [ Parent ]

    •  No, it is INevitable. (0+ / 0-)

      It WILL happen again. And next time we might get a cunning bastard who will pull the wool over everyone's eyes until it is too late.

      So help me, if the Kingdom of Atlantia were a recognized legal entity.... At least we change Kings every six months. :D

      If it's
      Not your body
      Then it's
      Not your choice
      AND it's
      None of your damn business!

      by TheOtherMaven on Mon Feb 01, 2010 at 08:54:24 PM PST

      [ Parent ]

  •  ANY QUESTIONS?? (3+ / 0-)

    go back and check my posts.

    while most of you here were frothing at the mouth, demanding justice and pretending Obama/Holder were going to deliver that justice, I was telling you there would be NO prosecution of higher ups for torture.

    Scoreboard again for me for knowing exactly how pathetic our system is.

    Obama is WRONG.

    SOME people in the United States are in fact above the law.

    http://www.huffingtonpost.com/...

    "Essentially, Obama is irrelevant". Paul Craig Roberts

    by Superpole on Mon Feb 01, 2010 at 06:45:19 PM PST

  •  Barack protects their criminal asses (cheney & co (4+ / 0-)

    and all they do is get on TV and scare people.  they should go under a rock and shut up.  they are so lucky that they are all getting away with it.

  •  Change (7+ / 0-)

    Yoo can believe in!

    Woohoo! Rule of law, constitutional scholar, rah, rah, etc, etc!

    (barf)

    •  Man, every post that damns Obama... (0+ / 0-)

      ...is getting lots of recs.

      How things have changed. And there's only one person's desk where the Buck Stops...

      I would still vote for him in the general election, of course, unless the GOP does the unthinkable and nominates someone to the LEFT of Obama. Like that will EVER HAPPEN AGAIN IN MY LIFETIME.

      ha ha

      "I feel a lot safer already."--Emil Sitka

      by DaddyO on Tue Feb 02, 2010 at 01:00:34 PM PST

      [ Parent ]

  •  Oliver North for Emperor! (2+ / 0-)
    Recommended by:
    Minerva, happymisanthropy

    "Is that all there is?" Peggy Lee.

    by jm214 on Mon Feb 01, 2010 at 06:47:22 PM PST

    •  You know, he went on to make lots of money. (0+ / 0-)

      Oliver did pretty well in life for the price of a few years in prison.  I'm not sure we won that argument.

      "There's really nothing I want out of the past except history." - Autoegocrat

      by rainmanjr on Mon Feb 01, 2010 at 10:05:40 PM PST

      [ Parent ]

  •  Meet the new boss... (3+ / 0-)
    Recommended by:
    Dump Terry McAuliffe, Minerva, 0wn

    same as the old boss.

    WTF, Obama? NOT the change I believed in.

    I've seen the future and I've left it behind - Ozzy

    by bejammin075 on Mon Feb 01, 2010 at 06:47:38 PM PST

  •  a lot of people are probably breathing easier... (0+ / 0-)

    ...and none of them deserve it...


    larger version

    I didn't get Jack from Abramoff...I'm not a Republican!

    by nonnie9999 on Mon Feb 01, 2010 at 06:48:14 PM PST

  •  Are you slamming our future attorney general? (1+ / 0-)
    Recommended by:
    DaddyO

    You do realize that AG Bybee and Secret Police Commander Yoo will have you renditioned and waterboarded for the thought-crimes in your post?

    There is no planet B

    by Minerva on Mon Feb 01, 2010 at 06:48:19 PM PST

  •  That isn't the sound of doors closing. (2+ / 0-)
    Recommended by:
    cybersaur, roadbear

    That's the sound of torture chambers being refurbished.

    You know, I had very small ambitions for Obama a year ago.  All I wanted from him, to be the greatestest prez ever, was that he stop the torture and get us out of Iraq, everything else, including HCR, being remotely secondary in importance.  But he has only stopped the torture temporarily, and without closing the door on it, and only partially removed us from Iraq.  It's an improvement, but it's so pathetically little that it's almost like recalcitrance.  Either you know that what they did was unamerican and unconstitutional, or you don't.

    •  Okay, so Obama puts on trial the leadership of... (0+ / 0-)

      our government for last 8 years.  This is going to do what for the popularity of a President many are becoming concerned is too Socialist?  Badly as this hurts me to say but a public trial wouldn't be very helpful for us, right now.

      "There's really nothing I want out of the past except history." - Autoegocrat

      by rainmanjr on Mon Feb 01, 2010 at 09:18:39 PM PST

      [ Parent ]

      •  He didn't have to put it on trial, even. (0+ / 0-)

        Just set the example that this is NOT ever part of our process.  
        For instance, he could have let Holder begin preparation for prosecutions, and when the Republicans began to scream and holler too loudly, he could have "magnanimously" granted Bush, Cheney, et. al. a pardon for the crimes of torture and other war crimes and crimes against humanity.  That, too, would have been disappointing, but it would have left Bush and Cheney in disgrace as pardoned war criminals, unable to continue to mount their guerilla campaign of torture promotion, and it would have established PRECEDENT that these types of crimes are not irrelevant to our justice process and they are not without hazard for the perpetrators.

        •  Gerald Ford ring a bell? (0+ / 0-)

          If I'm Obama, I'm much more nervous about my polls dropping if I commit an overt act like PARDONING murdering torture suspects in custody...

          It makes pardoning Nixon look downright legitimate. You have an interesting idea, but when you think it all the way through, I have to disagree.

          "I feel a lot safer already."--Emil Sitka

          by DaddyO on Tue Feb 02, 2010 at 01:05:43 PM PST

          [ Parent ]

          •  By that logic, (0+ / 0-)

            it would have been better for the Ford administration to just bury Watergate through DOJ opinions exonerating burglars and perjurers rather than to pardon Nixon.  Maybe you also remember all the people back then excusing it by saying, oh come on, all presidents do this kind of thing.  

            There's a distinct difference between a Democrat pardoning a Republican past president and a Republican unelected successor pardoning his former Republican boss, with the implicit suggestion that there was some kind of secret deal.  The first looks, politically, magnanimous, while the second looks corrupt.  So the political risk isn't that great.

            Ford didn't suffer that much for it.  He ran for election (can't call it reelection, can we) two years later in 1976 against Carter in the wake of one of the worst Republican scandals in history, Watergate, as well as stagflation, and yet he nearly staged a complete comeback near the end.  

            There's also the issue of DOING THE RIGHT THING; the issue of damage to Obama's showing in the polls from a pardon is less relevant in that light.  I would prefer a full prosecution, but even a pardon would be better than what we have now, because it would allow the justice system to at least express its incompatibility with the policy of torture and unconstitutional actions.  That is something that will last longer than Obama.  Right now, the precedent set is very bad, and not worth whatever political calculus they may have made.  

      •  How about an investigation? (0+ / 0-)

        We're not even getting THAT.

        If an investigation led to real evidence of crimes committed, how can you possibly tell me that at the very least a slim majority would NOT want Obama to prosecute these criminals?

        At the beginning of the year, that's how it was being spun. Holder AND Pelosi were going to begin their investigations, and they would lead to wherever they would lead to...a 'natural' unraveling of the neocon crimes, not a 'political' witchhunt, etc.

        Never happened. Nothing. I'm telling you--there's going to be a price paid for doing NOTHING that's much higher than the price paid for doing the RIGHT THING. It's how we roll here in America, no matter how you're spinning it here.

        "I feel a lot safer already."--Emil Sitka

        by DaddyO on Tue Feb 02, 2010 at 01:04:05 PM PST

        [ Parent ]

  •  That's it folks. (5+ / 0-)

    Pack it in for American democracy and justice.

    America, the country that tortures in our name.

  •  Margolis let canary fly away also (0+ / 0-)

    U.S. Attorney Leura Canary

    "If we can't be free at least we can be cheap." Zappa

    by Zwoof on Mon Feb 01, 2010 at 06:53:18 PM PST

  •  Just when I was remembering why I love Obama, (6+ / 0-)

    he goes and reminds me of the single way in which he is in fact the most like Bush.

    FUCK THAT SHIT.

    I swear to God … whitewashing the OPR report? The one thing that might have led to actual consequences to anyone?!!

    JESUS FUCK I HATE THESE THUGS.

    “If I can't dance to it, it's not my revolution.” — Emma Goldman

    by Jyrinx on Mon Feb 01, 2010 at 06:54:02 PM PST

  •  That's a hell of a legacy... (1+ / 0-)
    Recommended by:
    DaddyO

    I would have found courage in American convictions and put my faith in the rule of law.

  •  And this is alienating our NATO allies (4+ / 0-)
    From Scott Horton:

    Three developments last week show the growing gap between the Obama Administration and its NATO allies with respect to the legacy of torture from the Bush era. They also demonstrate that, contrary to Obama's promises faithfully to uphold the Convention Against Torture and Geneva Conventions, his Justice Department has no intention of doing so when crimes from the Bush era are in question. This attitude is not going over well with key allies.

    http://www.harpers.org/...

    "So here's us, on the raggedy edge" - Mal Reynolds -8.88, -7.90

    by Presumptuous Insect on Mon Feb 01, 2010 at 07:04:48 PM PST

    •  GOOD. (2+ / 0-)
      Recommended by:
      cybersaur, Presumptuous Insect

      Obama needs to feel some serious pain for this. (And yes, the irony in my demand is not lost on me.)

      “If I can't dance to it, it's not my revolution.” — Emma Goldman

      by Jyrinx on Mon Feb 01, 2010 at 07:11:57 PM PST

      [ Parent ]

      •  That comment is inappropriate, Jyrinx. (0+ / 0-)

        It's never advisable to say anyone needs to feel pain, especially a President, because someone might decide to create that pain.  Saying it's all right to make such a statement was exactly the argument what's-his-name used for killing the abortion doctor.  He was just acting upon his conscience and what the right-wing pundits were telling him to do.  That argument was ruled against, last week, and thankfully so.

        "There's really nothing I want out of the past except history." - Autoegocrat

        by rainmanjr on Mon Feb 01, 2010 at 10:13:22 PM PST

        [ Parent ]

  •  I can hardly wait (1+ / 0-)
    Recommended by:
    Jyrinx

    to read Greenwald's take on this. This should send him into orbit.

    How utterly predictable.

    Riding on a pony Riding against the wind And in came brando And he told it like this

    by Wamsutta on Mon Feb 01, 2010 at 07:12:25 PM PST

  •  Anything on the International (1+ / 0-)
    Recommended by:
    rainmanjr

    front happening with this? Phillipe Sands is an international lawyer and a Professor of Law and Director of the Centre on International Courts and Tribunals in the Faculty.

    He has been a frequent guest on Democracy Now! and a very strong proponent of bringing these vermin to justice.

    I couldn't find any recent news on him, but this article shows he is still very much involved in this, he's taking it all the way to the top. Or at least he is going to damn well try.

    Here is a little fiery congessional testimony from Sands in 2008. Shorter Sands: Your leaders are war criminals. Deal with it.

  •  The powerful are loathe to concede power (0+ / 0-)

    Obama risks giving up some of the more extraordinary powers co-opted by the Executive branch in recent years.

    Foreign or domestic terrorists kill people on American soil.

    Aloha Obama, aloha Democrats.

    I am very unhappy. I do hope, tho, that before leaving office, Obama will officially give up at least some of these dark powers.

  •  gee, I'm, uh, shocked (0+ / 0-)

    Every time in previous history that an incoming Dem Administration found its predecessor doing something illegal, it did NOT stop the practice --instead, it EXPANDED it and turned it against its own political opponents.

    I had hoped Obama at least might be different.

    He's not.

    Dem Party Motto: "Hey, at least we're better than nothing!"

    by Lenny Flank on Mon Feb 01, 2010 at 08:11:36 PM PST

  •  In your commentary perhaps you (1+ / 0-)
    Recommended by:
    rainmanjr

    should at least acknowledge the one other "fact" in Newsweek "scoop" (assuming it turns out true).  The downgrade was not made by Holder or the WH or "an administration trying to slam a door shut" but by a career DOJ attorney.  

    Now if you have a scoop that Holder or the WH or the administration pressured the career DOJ attorney to soften the report that would be one thing, but as of now, you dont so dont go down the uber-secret administration conspiracy route mcjoan, please.

  •  now we can look forward (0+ / 0-)

    justice is just looking backwards.

    big badda boom : GRB 080913

    by squarewheel on Mon Feb 01, 2010 at 09:02:00 PM PST

  •  Added to Dkosopedia (0+ / 0-)

    I've added this as a further reference to the Dkosopedia page Prosecuting Officials for Crimes. At least we've documented the culpability of this administration for future generations. That is, unless they pull a "disappearing hieroglyphics" number by defacing all our Internet posts. I'm sure some future archeologist going through the Google archives will find it and marvel at how little attention it received before the CIA started trying to track it all down and delete it from the Web.

  •  It's called professional courtesy (2+ / 0-)
    Recommended by:
    lysias, Kickemout

    One component of the imperial presidency is that the AG, and thus the federal prosecutors, now work for the president.  We now have police forces as well, to include various "intelligence" organizations, whose operational mission means that we wouild call them secret police except that secret police can't happen in the Land of the Free and the Home fo the Brave, that work for the president.

    But another component, the defining aspect of the para-Constitutional system we have devolved into, is that the presidency handles everything we want the govt to do, but don't want to acknowledge that is done in our name.  You know, illegal things.

    The result is that every president since the beginning of the security state has committed official crimes.  These include, under one heading or another, capital crimes.

    The president, and his men, are absolutely safe while in office, both because of official immunity, and because he controls the prosecutors and police.  Congress can, via impeachment, remove the immunity and take away control of the police and prosecutors, but they normally wouldn't.  The whole point of having the president do everything we don't want officially acknowledged is precisely that the Congress not have to be responsible.  They're not going to disturb their own racket.

    But once he leaves office, the president, and his posse, lose the official immunity, lose custody of the evidence of their crimes, and lose control of the police and prosecutors -- all to their successor president.  The new president has the old president, all former presidents, at his mercy.  Not taking advantage of that position is an important component of the truce that keeps what has devolved from our republic into our elected dictatorship, from taking the next step, and losing the "elected" part of the descriptor.  That truce, once broken by either party, would set in play a dynamic whereby no president ever again could leave office to a successor of the other party without a fair certainty of spending the rest of his life in jail.  If he lives that long.  Certainly the other party in this case, the Rethugs, could be relied on with utter certainty, to revenge any prosecutions of BushCo, however objectively justified, tenfold on ObamaCo once they take the White House.

    Obama isn't prosecuting the Bush team because he doesn't want to spend his post-presidential years in jail.  It really is as simple as that.  This "looking forward not backward" stuff is a quite reasonable guide to action in this matter.  The only thing Obama could look forward to after prosecuting Bush or any of his minions would be life in prison.  That's a powerful incentive not to look backward.

    The presidency must be destroyed.

    by gtomkins on Tue Feb 02, 2010 at 06:08:42 AM PST

    •  But you're ignoring an obvious alternative. (2+ / 0-)
      Recommended by:
      DaddyO, gtomkins

      The President, at the same time that he starts prosecuting the previous administration for its crimes, could also renounce the quasi-dictatorial powers of the national security presidency and declare that he is restoring the power of Congress and will in the future refuse to exercise any authority not given him by the Constitution.

      A President who did that would not be making himself into a real dictator.

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Tue Feb 02, 2010 at 07:24:09 AM PST

      [ Parent ]

      •  Forget about the Man on a White Horse solution (1+ / 0-)
        Recommended by:
        lysias

        A president who could change the Constitution with a wave of his hand, by presidential decree, would be part of the problem, not part of the solution, even if the change he wanted to decree were an end to dictatorial powers for the president.

        There are constitutions that have provisions for special, dictatorial, powers.  The Romans actually had Dictator as a temporary, emergency-use only, recognized office within their overall republican form of govt.  Had we gotten to our present state of the presidency being, in effect, an elected dictator, by changing the Constitution, we could indeed undo that mistake by changing the Constitution back to get rid of this feature.  Not that the president would do the changing, not if the dictatorship we had instituted were at all containable within an overall republican scheme of govt, but we could overtly reverse a change that we had overtly made earlier, by the prescribed methods of changing the Constitution.

        The problem is that we didn't change the Constitution overtly, we simply changed how we implement it, without any ackowledgement that this was a change.  The president has gone from being the servant of Congress, someone with no powers (except the veto, which gives him some of the legislative power) and only duties, the overall and summary duty being to enforce the will of Congress and the courts, to being the effective master (at least in all cases where national security can be invoked, a broad category that gets broader every day), someone with all the power and with Congress having a duty to pass whatever laws are needed "to support the troops".  But all of this was done as an illegitimate flight from responsibility by Congress, without changing the written Constitution at all, without any ackowledgement that Congress was abandoning its powers and responsibilities to make its own life easier.

        The most a president could do would be to refuse to act outside a proper understanding of the president's role.  But that would be perceived as sheer weakness, and a shirking of responsibilities that everyone has come to see as presidential.  It would be sheer weakness, and potentially damaging to the nation, unless it had the effect of getting Congress to resume the control of the govt that is its proper role.  But the moment for Congress to assert itself with such a resumption of authority is when we have a bad, incompetent and/or dangerously abusive, president, not when we have a competent president who poses no threat of further and abusive overstepping of the inherent bounds of the office.  A Congress grown used to not being held repsonsible by anybody for anything, is not going to make its life unnecessarily harder by asserting itself in the power vacuum that would result if some president went all 19th Century on us and refused to be the master.  What we see lately in response to presidents who don't crack the whip is sullen passive-aggressive behavior from Congress.  

        The problem isn't that presidents seized power, and therefore the solutiuon is not for them to hand it back.  The problem is that Congress ran from power and its repsonsibilities, and the only possbile way we will get a real, de facto, working republic back, is for Congress to take back the government it abandoned.

        As a practical matter, as things are now, were Obama to do as you suggest, and make a big show of appointing a truly independent AG, that example would not be at all binding on any Republican successors.  In fact, if this indpendent AG reached the perfectly valid, inescapable, really, conclusion that BushCo needed to be prosecuted, there is zero chance of the Republicans even thinking about accepting the idea that this AG was anything but a party hack in criminalizing policy differences, and staging show trials of true patriots, etc, etc.  Their next president would act accordingly, and their regime would hang ten Ds for every R we had put in some country club federal prison for a few years.  

        The presidency must be destroyed.

        by gtomkins on Tue Feb 02, 2010 at 08:27:59 AM PST

        [ Parent ]

        •  The result of a vigorous prosecution of the (2+ / 0-)
          Recommended by:
          DaddyO, gtomkins

          Bush administration malefactors would probably be the death of the Republican Party.  Since ours is naturally a two-party system, a new party would arise to take its place.  But such a new party would have no desire to take revenge for the prosecutions now.

          If, alternatively, the Republican Party did manage to survive, but under new management, the chances would still be high that it would have no desire to take revenge.

          The influence of the [executive] has increased, is increasing, and ought to be diminished.

          by lysias on Tue Feb 02, 2010 at 09:02:39 AM PST

          [ Parent ]

          •  Not really (0+ / 0-)

            The clearest specifications, the stuff that we already know about, that was clearly illegal, would be things that are already widely known, that the Rs publically support, and have not at all repudiated.  This support has not cost them at the polls to date (The R in the MA Senate race made some enthusiastic endorsements of some of the most egregioous of these crimes, and won. In MA, not ID or UT).   It's not clear to me that having the D administration prosecute Rs for these crimes would have any effect in convincing the electorate that operating an American Gulag is actually criminal, as opposed to a good, and even necessary, idea.

            Sure, somebody should wage a campaign to change the electorate's mind on that score.  I'm not even saying that such a campaign is doomed to failure, that the electorate is incorrigible.  But putting Rs on trial for things that the electorate hasn't yet been convinced are crimes, is not going to do anything but help the Rs at the next elections.

            Unfortunately, not this president, not any president as long as the president is the unelected dictator of the national security state, is ever going to take the lead in that campaign to convince people that the gulag is a bad idea.  Presidents wield this vast and unchallenged power in our current arrangement only insofar as they scare the hell out of the American people.  The system is built on fear, institutionalized, continuing, never-ending fear.  No president can afford to laugh off, dismiss as non-threatening, even objectively laughable non-attempts like this latest Underpants Bomber fiasco.  The accurately derisive name, "Underpants Bomber", actually stuck, and yet even this president, a Constitutional lawyer and the most progressive-minded person we are ever at all likely to see as president, was forced to pretend that it was a real threat, when there was not even the thinnest shred of possibility that you can detonate PETN by lighting it on fire, or that 3 oz of PETN, even if successfully detonated in the "bomber's" lap, would have done anything but castrated the bomber.  Gee, at least we didn't end up torturing this psych patient -- we hope.  But the Rs who suggested otherwise were hardly beaten down by the weight of an outraged public opinion.  And public opinion will not even begin to turn on the question of these extreme methods until and unless we can at least get the idea out there that we are not even close to being in any peril as a nation, much less an extreme one.  Of course the president is not going to make that case.  He can't make it and remain the president that the overwhelming majority of the electorate expects him to be, our defender amidst the extreme perils we imagine ourselves to be in.  The person who is supposed to provide the defense is not the person to begin the process of disabusing the electorate of the idea that there is any need at all for such defenses.

            Insofar as any public officials have the responsibility to start disabusing the electorate of the fear that underlies the national security state, that would be Congress.  They are the people's representatives.  They can and should start impeachment proceedings against Bush and Cheney.  Of course they are no longer in office, but one of the only two penalties that conviction on impeachment can carry is a bar from ever again holding public office.  If there is a question of whether torture and indefinite detention, the gulag, is right or wrong for administrations to engage in, this is the forum to decide that question.  Sending Bush and Cheney straight to the courts now, when Congress and the public knew perfectly well during his administration that Bush and Cheney were doing these things, yet there was no attempot to stop him through the means available, impeachment, would be open to the charge of mere political retribution.  So let's have this conflict that should have taken place four years ago out now, in public, in a forum that can compel the disclosure of the most confidential evidence.  Let those wrongfully impriosned and tortured bbe brought to confront the criminals on the floor of the Senate.  Let the criminals introduce whatever classified evidence they want that their crimninal abuse in any way protected, had any chance of helping to protect, the national security.  And then let the Senators, in the light of full disclosure of all the relevant facts, decide whether a gulag is what America wants or needs, whether running one is acceptable behavior form US administrations.  I think that there's an excellent chance that they and the electorate will draw the right conclusions from this exercise.  But, to my mind, it's the only way we're going to get justice for BushCo without creating a cycle of vengeance in which our side will not give nearly as much as it will receive.

            The presidency must be destroyed.

            by gtomkins on Tue Feb 02, 2010 at 11:04:04 AM PST

            [ Parent ]

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