Comments (26)

watercarrier4diogenes wrote on January 17, 2008 5:03 PM:

There are both good and bad aspects of Hellerstein's denial of the ACLU contempt request. See emptywheel's analysis and comments thereunder for more.

http://emptywheel.firedoglake.com/2008/01/17/judge-hellerstein-calls-the-cia-on-its-bs/

Anonymous wrote on January 17, 2008 5:46 PM:

Indeed, it does boggle the mind there were "no notes" of the _tapes_.

It doesn't seem credible that there were "no notes," as on the PBS Frontline, former WH Counsel did say, in effect, that they had no "personally" been involved with discussions, but there were "aware" of discusions and information related to the "feedback" of those interrogations.

- Is someone asking us to believe these interrogations were "so valuable" that _nobody_ ever made any note in the United States; and despite "no notes" someone thought it was a "good idea" to destroy the "only" copy of a "valuble interrogation" in this "war on terror" that was going to span generations?

- If there are "no records," why should we believe the _mental_ recollections of anyone of why they did or didn't do anything; and why not make adverse inferences because of the spoliage: That the tapes were allegedly destroyed to hide war crimes evidence from the ICC and US Courts?

- What were _WH_ lawyers, presumably _not_ at the CIA interrogation, "discussing with the CIA" if they were _not_ referring to _any_ notes?

- What "notes" -- which the CIA says do not exist -- exist at the _WH_ or the entities that _did_ review the tapes?

- If there were "no notes," _how_ were the "lessons of the tapes" going to be diseminated to JTTF, CIFA, and others in the intelligence community?

- Is somemone asking us to believe that "no notes" were taken of the CIA interrogations for purspose of "applying those lessons" to contract-provided training?

- If _CIA_ has no records, what about those at the CIA contractors who provided translation/transcription service: How did they get copies of the tapes; and waht records did/do they maintain of the interrogation?

- What records exist within CIFA and JTTF related to the planned training scenarios actors were hired to role-pley during the Quantico training sessions: -

- If there were "no notes," -- between 2002 and 2005, when the tape was supposedly destroyed (?) -- what were the "deliberations" about; what were they reviewing; and what "concerns about the tape" (with "no notes") could be possible if those discussing the tape had not personally seen "the tape"?

- How was it possible that someone in the WH Counsel's office would hear "indirectly" from "someone else" about the "success" of interrogations, but there is no record?

- If there are no _written reocrds_, where are the _telecom_ records: Logs of who made calls, subject matter; or are we to believe that the WH "doesn't have those" as well; and the "problem with records retention" has nothing to do with _backup electronic files_, but more generally with _all_ data that might be of interest to the ICC, as the JAGs raised as a foreseeable concern in 2001 at the POW working group meetings?

acf wrote on January 17, 2008 6:34 PM:

This was the lesson of Watergate. Destroy the damned tapes. No record, no proof, as long as they stick to their story.

The Facilitatrix wrote on January 17, 2008 6:46 PM:

But acf, Nixon and Co's plan about their tapes didn't work very well. I still feel bad for Rose Mary Woods, and probably so did those who questioned her. But that didn't mean they believed her story, and it didn't mean that the investigations stopped just because 18-1/2 minutes were missing.

Anonymous has given a different take on what I queried when this came out: How could it be possible that there is only one set of "tapes"?

I simply can't believe that these were High 8 or VHS tapes that were made, and if, as I believe, this was a digital tape recording, it got processed on at least one computer.

And I cannot believe that every person who chimed in an opinion on these tapes--whether it was that they showed the interrogation worked or that their existence was risky for the CIA--got passed the originals. There are copies somewhere. They may reside on a computer or as other tapes or as transcriptions, but they're out there.

This is one treasure hunt where the hiders definitely don't want the treasure found.

Bilgepump wrote on January 17, 2008 7:41 PM:

I heard a rumor the tapes were done on a Beta machine... the CIA will argue the destruction of the tapes was simply an economy move precipitated by routine culling of obsolete equipment.

Anonymous wrote on January 17, 2008 8:09 PM:

Bilgepump wrote on January 17, 2008 7:41 PM:

"I heard a rumor the tapes were done on a Beta machine... the CIA will argue the destruction of the tapes was simply an economy move precipitated by routine culling of obsolete equipment."

Thanks for the humor. BUt let's pretend the romor is true: The statement would amount to an out of court, inconsistent statement, raising doubts about the opposite assertions provided to court.

The court could make adverse inference, and declare the witness non-credible; and that there is no "straight" story on what happened because there was a _criminal_ intent behind the statements and acdtions in re Geneva.

Anonymous wrote on January 17, 2008 8:35 PM:

Once the court says, "Boggles the mind," it's a signal that there may be adverse inferences on the way because of non-sense arguments about data destrution/non-availability.

"Spoliage" implicitly suggests, despite the "privilege of atty-client deliberations" and "pre decisional deliberations" and "Executive Privilege", _someone_ thought the _court_ might say, "We do not recognize any of those claimed privileges." Someone apparently knew enough to know what the evidence was on the tape; what the court was thinking; and that, despite the shields the President might use, that there was a _real_ chance the evidence would be disclosed.

Arguably, rather than take the chance that the court fight _would_ strike down any/all attempts to shield the tape/evidence, they chose to destroy the evidence on the tape. It defies reason -- given Addington's strong legal weight -- to suggests there were any 'Deliberations" about what to do with the tape. This would absurdly suggest that someone was _delaying_ what Addington and others wanted: Evidence gone. No such person exists. A reasonable conclusion is the "deliberations" since 2002 to 2005 is a ruse deliberation to create an illusory "deliberative shield" to further suppress evidence from that time.

The issue then becomes:

- How did they know what evidence, that was supposed to be shielded, would be requested;

- Did they improperly learn about what a grand jury was planning to ask for;

- How do they explain the "many years of no action on the evidence", but then -- within a matter of months of the Libby issues -- the tape is destroyed?

The reasonable person would assume: the Libby Grand Jury (or another one, still secret) was/is looking at _other_ issues related to not just Plame, but other communications related to other things. The destruction order had nothing to do with real deliberations "finally concluding anything," but with lawyers concluding, "We have no other option but destroy this evidence."

It makes no sense, this many years into the President's second term, for the WH to be "confused" about records retention requirements, the ability of the WH e-mail system to work: There should have been adequate notice that there were problems with the primary and backup systems. That they didn't timely resolve the known problems suggests alleged recklessness attached to counsel providing legal assistance to the Office of Administration. That counsel's name appears to be one that is well known in DC; and one that appears to have hired former WH legal counsel. By hiring former WH counsel, the outside entities conducting this "IT technical consulting" to the Office of Administration should have been well positioned to know of the problems with data retention; the requirements; and the need -- going forward -- to have a solution in place. It boggles the mind this WH wants us to believe it "still can't figure it out." No, it's more likely they thought they were in a corner, and had exhausted all chances that the claims of privilege would succeed.

Indeed, even a claim of "state secrets" isn't keeping a public discussion in _court_ from reviewing evidence related to alleged prisoner abuse in contravention to Geneva. It appears outside counsel has been complicit with WH efforts to destroy evidence of interest to the ICC. This foreseeable interest of the ICC and war crimes prosecutors in prisoner-treatment issues -- as depicted on the tape -- was a foreseeable risk which the JAGs going forward from 2001 well documented in their POW working group meeting minutes to the DOJ OLC and the DOD. Addington is good friends with Haynes at DOD. It appears the attention has been taken off the OVP data retention requirements in 32 CFR 2800 because Addington allegedly knows the evidence destruction in re CIA tape is related to a failed effort to suppress alleged war crimes evidence in re prisoner abuse in contravention to Geneva.

Anonymous wrote on January 17, 2008 8:37 PM:

It is arguable that without a tape that all the purported evidence is Hearsay. That the destruction is Spoilage of evidence. And then you would have to assume that this was politically motivated prosecution.

I mean, some of the Sunni's now our buddies in Anbar were once of course our enemies, and what happened? A political accord was reached.

Former Michigan U.S. Rep. Mark Deli Siljander was indicted today as part of a terrorist fundraising ring that allegedly sent more than $130,000 to an Al Qaida and Taliban supporter who has threatened U.S. and international troops in Afghanistan. a Gulbuddin Hekmatyar:

Who alledgelly according to WIKI:

(begin quote)

Gulbuddin Hekmatyar's Islamic Party - called Hezb-e-Islami Gulbuddin (HIG) to distinguish it from a smaller splinter group - espouses strict Islamist ideology. At various times, it has both fought against and allied itself with almost every other group in Afghanistan. Hezb-e-Islami Gulbuddin received some of the strongest support from Pakistan and Saudi Arabia, and worked with thousands of foreign mujahideen who came to Afghanistan.[5]

During the Soviet invasion of Afghanistan, Hekmatyar received millions of dollars from the CIA through Pakistan's Inter-Services Intelligence (ISI). According to some, ISI's decision to allocate the highest percentage of covert aid to Hekmatyar was based on his record as an effective anti-Soviet military commander in Afghanistan.[6] Others describe his position as the result of having "almost no grassroots support and no military base inside Afghanistan," and thus being the much more "dependent on [Pakistani President] Zia [ul-Haq]'s protection and financial largess" than other mujahideen factions.[7]

Hekmatyar has been harshly criticized for his behavior during the Soviet and civil war. He ordered frequent attacks on other rival factions to weaken them in order to improve his position in the post-Soviet power vacuum. An example of his tendency for internecine rivalry was his arranging the arrest of Ahmed Shah Massoud in Pakistan in 1976 on spying charges.[8]

The Paris based group Medecins sans Frontieres reported that Hekmatyar's guerrillas hijacked a 96 horse caravan bringing aid into northern Afghanistan in 1987, stealing a year's supply of medicine and cash that was to be distributed to villagers to buy food with. French relief officials also asserted that Thierry Niquet, an aid coordinator bringing cash to Afghan villagers, was killed by one of Hekmatyar's commanders in 1986. It is thought that two American journalists traveling with Hekmatyar in 1987, Lee Shapiro and Jim Lindalos, were killed not by the Soviets, as Hekmatyar's men claimed, but during a firefight initiated by Hekmatyar's forces against another mujahideen group. In addition, there were frequent reports throughout the war of Hekmatyar's commanders negotiating and dealing with pro-Communist local militias in northern Afghanistan.[9]

Another critic of Hekmatyar says "By the most conservative estimates, $600 million" in aid from America

went to the Hizb party, ... Hekmatyar's party had the dubious distinction of never winning a significant battle during the war, training a variety of militant Islamists from around the world, killing significant numbers of mujahideen from other parties, and taking a virulently anti-Western line. In addition to hundreds of millions of dollars of American aid, Hekmatyar also received the lion's share of aid from the Saudis. [10]

Pakistan dictator General Muhammad Zia-ul-Haq felt the need to warn Hekmatyar that

It was Pakistan that made him an Afghan leader and it is Pakistan who can equally destroy him if he continues to misbehave.[11]

As the war began to appear increasingly winnable for the Mujahideen, Islamic fundamentalist elements in ISI became increasingly motivated by their desire to install the fundamentalist Hekmatyar as the new leader of a liberated Afghanistan.

Alfred McCoy, author of The Politics of Heroin in Southeast Asia, accused the CIA of supporting Hekmatyar drug trade activities, basically providing him immunity against his assistance in the fight against the USSR. [12]

(end quote)

Well again all speculation....

Saddam Hussein

(begin quote)

In 1963, Saddam Hussein worked with the CIA to carry out the coup by the Baath party, which eventually brought him to power in Iraq. The book, A Brutal Friendship: The West and the Arab Elite by Said K. Aburish, which was reviewed recently in Counterpunch (The CIA: Lest We Forget, CounterPunch. Sept.16-30 1997, p.2), describes how the CIA, Saddam and other members of the Baath party collaborated to bring about the coup, murdering perhaps 5,000 people in the process. The United States went on to help Saddam win the Iran-Iraq war in the 1980s. According to Noam Chomsky, There were no passionate calls for a military strike after Saddam's gassing of Kurds at Halabja in March, 1988; on the contrary, the US and U.K. extended their strong support for the mass murderer, then, also 'our kind of guy' (Iraq and the UN Sanctions, The Economist, Nov.19 1994, p.47)

(end quote)

And then again: Manuel Noriega

(begin quote)

Manuel Antonio Noriega Moreno (born February 11, 1934[1]) is a former Panamanian general and the military dictator of Panama from 1983 to 1989.[2] He was never officially the president of Panama, but held the post of "chief executive officer" for a brief period in 1989.

Initially a strong ally of the United States, Noriega worked with the Central Intelligence Agency (CIA) from the late 1950s to the 1980s, and was on the CIA payroll for much of this time, although the relationship had not become contractual until 1967.[3] By the late 1980s, relations had turned extremely tense between Noriega and the United States government, due to allegations that he was spying for Cuba under Fidel Castro.

(end quote)

My point in posting this is not to impugne, teach a history lesson, or to moralize.

But instead to point out that events dictate actions as well as actions dictate events.

And that goes to my observation that I'm surprised that intelligent people 'drink political koolaid' or do things that they know will be disavowed politically.

On the other hand, I have to some grudging extent respect those that do, there is a 'touching the dither of history' and a willingess to do so that you can respect.

Now my personal opine on the Iraq invasion has not changed since 2003, before the invasion. I still think that it was reckless and unnecessary. If Saddam had grabbed some loot and gone into exile, and we had our troops available for deployment, I don't think a more powerful message could have been sent. We could have reached an accord with the same Sunni's we are dealing with now. We could have sold them allot of arms and gotten the oil fields online quicker.

But that is 'beside the fact' and that 'did not happen.'

And I will not allow facts to stand in the way of my opinion.

I think the facts pretty well establish that the torture policy, really designed at internal public consumption to sustain a war effort and stiffle dissent is now generally accepted as damn poor management.

I think that we need to get moving forward, look at the next page of history, the next event on the horizon and attempt to put the past where it belongs, that takes a Mandella wisdom to let go of the past grudges 'like a monkey with his fist in a jar' to grasp the future.

The pragmatic thing to do is hold a hearings to have the damn narrative for what it is worth.

Do I endorse what the Neocons have done? No. I think history will show that their management excluded them from what Chalabi described as 'heros in error.' No stupid fucks dripping with uneccesssaey hormones, knuckle dragging policy into chaos isn't smooth or efficient. It was bad for business and didn't allow the trains to run on time or increase sweet crude output. yeah I stick to the camp that calls these Neocons dumbfucks for their reckless acts.

But somebody has to follow these clowns and sweep up the shit in the street, its a job, somebody has to do it.

Rodriquez has been tapped and he better damn well perform, if he really wants to serve his country, well now is the time.

Thats my real damn opinion.

Virginaq wrote on January 17, 2008 10:01 PM:

Did anyone see the WaPo article today on the tape destruction?

http://www.washingtonpost.com/ac2/wp-dyn/NewsSearch?st=CIA+tapes&fn=&sfn=&sa=np&cp=2&hl=false&sb=-1&sd=&ed=&blt=&sdt=

No. 13

They've apparently selected the "fall guy", eh?

For some strange reason the item didn't format properly on my blog, which I've only just noticed.

NOTES: Digg participation in posting impeachment items has SKYROCKETED today.

I have 12 signatures on the
GLOBAL CITZENS TO IMPEACH RICHARD CHENEY petition - and am about to release the PR about it on OpEd News.

thepetitionsite/petition/537250776

They are better able to handle the forum aspects than anywhere else I can think of. Afterdowningstreet has a bad server (really) and it has shown no interest in the GLOBAL aspects of all this. I've TRIED. And with Wexler, too.

Any help appreciated as I have very limited resources but think this will really take off as there has never been a non US citizen petition available before ..

Veeger
I hope you like this -
impeach.now.to.end.war.crimes@gmail.com
No euphemisation.

brian wrote on January 17, 2008 10:07 PM:

Sorry : the story that 'the tapes were destroyed' is too facile, too convenient, too bogus.

I just do not believe that there are no copies, that there are no records, that one guy is accountable and that he has bravely decided to step forward.

Sorry !! Too fake. Phony, bogus, stupid.

Keep asking questions, Judge.

Tom U. wrote on January 17, 2008 10:47 PM:

This doesn't bode well for the folks in-line for Obstruction-of-Justice implications.

Perhaps counsel should tighten those screws even more to help ferret out any duplicate tapes.

Tom U. wrote on January 17, 2008 10:47 PM:

This doesn't bode well for the folks in-line for Obstruction-of-Justice implications.

Perhaps counsel should tighten those screws even more to help ferret out any duplicate tapes.

johnd wrote on January 17, 2008 10:49 PM:

The Bush crowd really has a way with obfuscating and stalling. It is undeniably a sucessful strategy.

It goes back to Reagan actually when Pondexter, North and Abrams took the fall kicking and screaming indignantly after a protracted stonewall while HW Bush and Reagan just clammed up 'til it blew over, with the n'er repeated or denied Reagan quote (referring to Iran Contra events) "If this comes out we'll all be hanging by our thumbs."

Shrub of course is famously quoted "F Saddam we're taking him out." Months before boldly lying to Congress and the American people about invading only if he refuses to disarm the country of arms that plainly did not exist to the most casual observer.

It's bittersweet to know Democrats have a stronger tendency to have enough guilt, shame or honesty to confess their misdeeds and plead mercy rather than employ the historically much more sucessful strategy of denying everything and spreading fear, uncertainty and doubt about the people (and motives of) those they disagree with even though the public is simply requesting honest answers from their public servants.

Kungfublood wrote on January 18, 2008 12:54 AM:

Just ask Rumsfield for his copies he was directing some of the torture from his Washington office via his live video feed after all.

Kungfublood wrote on January 18, 2008 12:56 AM:

Just ask Rumsfield for his copies he was directing some of the torture from his Washington office via his live video feed after all.

johnnydoughey wrote on January 18, 2008 1:25 AM:

So...
I have a question. In other similar countries, where democracy has come and gone, or hasn't occurred, do the dictators in charge make a big fuss as though they are concerned, but in the end, enact no actual penalties (such as the final act in this case, as well as all the cases against agency folk these past several years), or do they just ignore the masses... or lie to them?

I am kind of curious to see just which of these scenarios our country is following...

thepeoplechoose wrote on January 18, 2008 4:41 AM:

The central question in this ongoing investigation is why, given the apparent violation of federal law, this federal court judge and others have yet to take the actions that are stipulated in federal statutes regarding the destruction of these tapes.

It may be headed in that direction but top level accountability for the alleged violation will never happen even though such events cannot occur without at least the passive acquiescence of top level officials. The utter disrespect for our laws, our constitution and for the people of this country have been a front and center aspect of the Bush administration since day one. This country has no future when the average citizen pays so little attention to the seriousness of what has been going on for these seven years.

We are the true caretakers of this nation. We have a job and any hope we have lies in our getting it done. And all it takes is a little reading and a letter or two. That's a very small task to assure our rights and freedoms are protected. Yet if you talk to people about this their eyes glaze over and the apathy wafts over the room like a cloak. Too bad. Too sad. Too mad.

ernst gruengast wrote on January 18, 2008 5:08 AM:

I would like to point out three things:

1. These were by all accounts interrogations of two of the highest level Al Qaida operatives in US custody. A suspect is asked the same questions over and over again in order to analyse differences and repititions, look at body language and weaknesses (just as an example). Interrogation requires requires acribic observation and documentation. The notion that there were no transcripts and written analysis of interrogations at this level is just ridiculous.

2. As many interrogators have pointed out in sworn testimony and interviews wrt. this and the general investigations into torture allegations, the CIA covered the backs of its staff very well. Before any "enhanced technique" was applied, each time and with each detainee, there was a permissions procedure going all the way up to the top of the Pentagon (leaving Abu Graib aside). The line of command leaves a paper trail and this can be followed. That the destruction was to protect operatives from prosecution does not add up. and is not credible. And the protection of identity to prevent terrorist reprisals is equally absurd. These tapes would remain highly classified and there destruction prevented them only from being seen by government bodies with high security clearances (911 commission, NSC etc.). So these excuses are clearly smokescreens.

3. That brings us to the elephant in the room. The point that is hardly being discussed is this: We are told the enhanced techniques were here effective ie produced actionable intelligence. What was gleaned from the interrogations? What did they tell us? More specifically: What could two detainees with known connections to Pakistani and Saudi intelligence services have let out. If somebody like Sibel Edmonds, who overheard a few conversations can't be allowed to speak, then you can bet your bottom dollar that what these guys know cannot be let out for fear of diplomatic meltdown with the countries involved. Both the Edmonds case and the Al Yamamah controversy with Bandar bin Sultan show that maintaining those international relationships transcends ALL other issues, even if that means taking highly illegal action. It looks from a lot of corners like Saudi and ISI infiltration of Al Qaida is the tinderbox which must be kept closed, and my bet is on the intel on these tapes being part of this untold narrative.

gtash wrote on January 18, 2008 8:49 AM:

ernst gruengast posits a very highly prized intelligence secret is being protected at all costs, legal or illegal.

I am not sold on it. The behavior of the Administration and its operatives over the years simply does not award the "benefit of the doubt" to them. They have shown no respect for any other aspect of law, order, principle, or process except the ones they generate for their own use. I see no reason to suppose this case is any different.

Anonymous wrote on January 18, 2008 9:04 AM:

gtash wrote on January 18, 2008 8:49 AM:

Writes, "benefit of the doubt" and I have to inquire what poll of confidence in leadership to both Democrats or Republicans do you cite for that "benefit of the doubt"?

I guess the point is this, there was blowback to the policy of torture and the events accruing to the politicizing of intelligence and due process.

CIA both creates this blowback and is responsible for cleaning it up.

The question boils down to chasing somebody through the sewers of Paris "as in Les Miserables" or moving forward and grabbing the next sentient moment.

As a nation we face evolving national security challenges, and now that challenge as always involves energy and trade.

I suggest that we focus on those issues and have the narrative of testimony under immunity so as to put behind this nation the poor policies of the Neocons.

I would rather have CIA focused forward than looking in their rear view mirrors and I think that the institutional corpus of knowledge has the learned lessons to avoid these political gambits in the near future.

Demanding a pound of flesh is not the solution.

Focusing on the next sentient moment, evolving challenges is. Was there injustices? Yes. Will history and disclosure record them as people enter their late years? yes.

And in closing the really smart folk knew all along that that day of accountability has a very long shelf-life.

There may be a tape out there, it might show up in ten years, that will create a sentient moment.

I advocate immunity and the narrative.

Anonymous wrote on January 18, 2008 9:21 AM:

The conviction did not even address his detention in 2002 at Chicago's O'Hare Airport on allegations that he had returned from Afghanistan to carry out a "dirty" bomb attack on a major U.S. city.

According to the Bush administration at the time, Padilla had received the green light from Khalid Shaikh Mohammed, the planner of the 9/11 attacks.

Folks study this carefully above, did waterboarding illicit the accusation? What is the mental health of the two men in question? Are they "BOTH" mentally ill prior to detention? Can you imagine the embarrasment of allowing their mental condition to be evaluated now?

And keep in mind, that Collen Rowley testified the day before the announcement of the arrest, made live from Russia by John Ashcroft, and that June 10 2002 was also the day that the cooperative research group was formed at the national press club.

Notice the way that Yoo runs from the event, allegations.... According to the Bush administration at the time......

If there is individuals whom should be held responsible, start with Yoo!!!

What a lying sack of shit that man is!

Full article below.

Terror suspects are waging 'lawfare' on U.S.

John Yoo
is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute

Walk down Broad Street and you pass by a brown mansion, squeezed in between a music store and a Banana Republic. With its statues of proud soldiers in front, the Union League stands as a symbol of the sacrifices necessary to win the Civil War.

After being sued by convicted terrorist Jose Padilla, I wonder whether our nation today has the same unity and tenacity to defeat the great security challenge of our day, the rise of fundamentalist Islamic terrorism. Even as our brave young soldiers fight in Afghanistan and Iraq, and our intelligence agents succeed in disrupting follow-ups to the 9/11 attacks, terrorists are using our own legal system as a weapon against us.

They use cases such as Padilla's to harass the men and women in our government, force the revelation of valuable intelligence and press novel theories that have failed at the ballot box and before the president and Congress.

"Lawfare" has become another dimension of warfare.

Padilla is no innocent. Last summer a Miami jury convicted him of participating in an al-Qaeda support cell in the United States. Prosecutors now are asking the court to sentence Padilla to life in prison.

The conviction did not even address his detention in 2002 at Chicago's O'Hare Airport on allegations that he had returned from Afghanistan to carry out a "dirty" bomb attack on a major U.S. city.

According to the Bush administration at the time, Padilla had received the green light from Khalid Shaikh Mohammed, the planner of the 9/11 attacks.

At the time, I was an official in the Bush administration Justice Department working on the response to the 9/11 attacks. Our lives had taken very different paths. Padilla had turned to drugs and crime in Chicago and was convicted of murder as a juvenile. He became a radical follower of fundamentalist Islam, left for Egypt in 1998 and journeyed in 2000 to Afghanistan, where he trained to become a terrorist at al-Qaeda and Taliban camps.

I had the good fortune to grow up in the Philadelphia area, attend the Episcopal Academy for high school, and go off to Harvard for college and Yale for law school. I studied and eventually taught war powers, a subject that always interested me because of Philadelphia's rich history with the Revolutionary and Civil Wars and my family's origins in South Korea, the scene of one of America's more recent conflicts.

I worked on the legality of the decision to place Padilla in the hands of military authorities in June 2002. The 9/11 attacks on our nation's capital and financial center, and the loss of 3,000 American lives, placed the United States at war with al-Qaeda, a fact that Padilla's lawyers do not accept. They have always asserted that Padilla could be considered only a criminal defendant and must enjoy the benefits of the civilian criminal-justice system.

They are wrong. Both the president and Congress have agreed that the United States is at war, and Congress passed an authorization for using force against any groups, nations or people responsible for the 9/11 attacks. Capturing prisoners has been a permanent feature of war throughout human history; hundreds of thousands were detained during World War II alone. Sometimes, unfortunately, the enemy has included U.S. citizens - in the Civil War, every Confederate soldier was a citizen, and in World War II some Americans fought in the Axis armed forces. They never had a right to sue the soldiers who caught them.

We are in a difficult war against an unprecedented enemy. Its members deliberately disguise themselves as civilians and carry out surprise attacks on innocent civilian targets. They do not have a territory, city or population. They are trained to claim abuse when captured and to appeal to the legal system to tie up democracies in knots.

It is a difficult job for our government and armed forces to adapt the rules for war to such an unconventional, non-state opponent.

But Padilla and his Yale Law School attorneys think that these decisions are better second-guessed by plaintiffs' lawyers and judges rather than our elected leaders. They challenged Padilla's detention and lost in the federal Court of Appeals in South Carolina, before the government sent him to Miami for prosecution.

Think about what it would mean if Padilla were to win. Government officials and military personnel have to devise better ways to protect the country from more deadly surprise attacks. Padilla and his lawyers want them, from the president down to lowest private, to worry about being sued when they make their decisions. Officials will worry about all of the attorneys' fees they will rack up to defend themselves from groundless lawsuits.

My situation is better than most, since I am a lawyer with many lawyer friends (that is not the oxymoron it seems). I can fend for myself; fine attorneys have volunteered to represent me, and the government may defend me. But what about the soldiers, agents and officers who have to respond to the next 9/11 or foreign threat? They will have to worry about personal liability, hiring lawyers.

Would we have wanted President Abraham Lincoln to worry about his personal liability for issuing the Emancipation Proclamation freeing the slaves (done on his sole authority as commander-in-chief)?

If so, then we will have a government that will avoid any and all risks, shun making any move that is not an exact repetition of locked-in procedure of 20th-century vintage, and keep plodding along the same path regardless of contemporary circumstances. These are exactly the conditions that make a nation susceptible to a surprise attack, whether a Pearl Harbor or a 9/11.

moondancer wrote on January 18, 2008 10:15 AM:

What boggles the mind is that anyone would be surprised by the criminality of the bush cabal. It is to a point now where one should assume criminal obstruction, and malice of forethought.
They are not denying their contempt for the other two branches, so either re-assert your power, your Honor or STFU.

JNagarya wrote on January 18, 2008 6:29 PM:

"The Facilitatrix wrote on January 17, 2008 6:46 PM:

"Anonymous has given a different take on what I queried when this came out: How could it be possible that there is only one set of "tapes"?"

As we can assume that the tapes were not made so the actions of the "interrogators" on them could be reviewed for compliance with the law, we can also assume that one, and perhaps the foremost, purpose of the tapes were for "instructional" purposes: the training of "interrogators" on what "works" and doesn't, and how to increase efficiency.

So doubtless there was not only the -- impliedly -- one copy of the tape. And the idea that the -- impliedly only one copy -- was destroyed in Thailand without review at CIA headquarters is simply not believable.

Anonymous wrote on January 18, 2008 8:17 PM:

There's a subtle point that deserves some exploration. We've been told that someone asserted the CIA tape shows the prisoner sitting around for hours on end, just sitting by himself.

Put that aside. Recall the Iranian speedboat video: It was spliced. Long portions deleted.

Put that aside. Think about what we've been told, "We destroyed _the tape_. Think about a viewer watching the tape, and asserting to Congress/the Court _under oath_, that the tapes showed him sitting there "for hours". Consider: "How did they know that: That the prisoner was there for _hours_?"

Let that sink in, and put that aside. Let's accept as true their assertion -- for this comment only -- that they "Destroyed the tape". This leaves open the possibility that there are _computer-recordings_ of the original events; and that in the lower portion of the screen, there was a clock: How else would someone know, "We saw him sitting there for _hours_.

Time must have been passing; and there must have been way to know "this is time passing."

Now consider the problem: We've also been told to believe "There are not notes of the tape" and "No one has any writing related to the tape." If that were true,

- How did the original tape made of the interrogation, go from Europe to those who "said" they "saw" the tape; and "reviewed" summaries of interrogations?

- How does someone "not review notes" but then claim, "we saw summaries"?

- How can there be "no notes" of the interrogation; but WH Counsel on PBS Frontline says, They read summaries from others?

- Is someone asking us to believe that people "not taking notes" at CIA were somehow -- by some unknown communication medium -- mind-channelling data to WH Counsel's brain, not using any notes, no e-mail, no transfer of data, nothing in writing, no paper, no diplomatic records, nothing?

It's impossible. Supposedly, people _not_ at the interrogations "knew" time passed; but they cannot say for certain whether the Iranian Speedboats are an imminent threat; or spliced from many hours of benign wave skimming. It appears most likely, what is possible:

1. The interrogation/prisoner monitoring was a video-computer automatic capture system;

2. There was no external click on the wall; but the time-stamp showed there was no splicing because the computer automatically added that time-stamp to the stored video image;

3. CIA personnel in Europe, and US Contractors working for the CIA have _on computers_ electronic copies of the _events-; there were never "video tapes" made, but electronic screen images, transferred through classified e-mail systems, on INTELLINK.

4. There could be DVDs made of the interrogation which have been sent to the FBI-JTTf-CIFA training schools along the East Coast; and

5. Copies of the interrogations have been sent to our intelligence allies.

DISCOVERY

- When did the CIA contractors purchase the video-capture system

- Who ensured the video capture system would integrate with the computer archiving

- How were the "problems of transferring data within WH EOP" [Lotus Notes to MS Outlook] solved so data would be preserved for CIA, and the "problems of data preservation" would not recur

- Who saw images of the data capture system

- Who saw the time stamp on the video showing them time had passed

- When did Members of Congress view still images from these computer-captured-stored systems

- Where in Congress are there copies on PPT slides images from the computer-stored video capture system?

- How could so many people report "problems with WH email retention"; but many people report "no problems" with the CIA video capture system: How can two large groups of people have contradictory testimonies on whether there was or was not a "data preservation problem" within agencies under the same, single President?

This is absurd to take seriously, That, "Many people saw something, were notified of that "something" through some sort of "mind communication" _without_ notes or e-mail or notes or documentation." WH Counsel says there were informed; they got the memo, they saw the summaries; but to the court, CIA says, "We have no notes." Were WH Counsel delusional, and there were, in fact, "no notes" and "they were imagining reading a summary"; or did they, in fact, see the _computer-saved video images_ that are "not notes" and "not a tape"?

Two groups, with contradictory assertions, cannot both be right: Either,

A. There is a data management problem that was solved and understood; or

B. They do not understand the data problems, and there was no basis to transition from one system to another.

The only reasonable answer: Someone is allegedly lying to the Court in re war crimes evidence.

Mike Greb wrote on January 26, 2008 2:18 AM:

“I’m asked to believe that actual motion pictures, videotapes, of the relationship between interrogators and prisoners were of so little value” that was no record of them was kept in C.I.A. investigative files, Judge Hellerstein said during a hearing over a freedom of information request involving the tapes.

If you knew darn well what you were doing was illegal, would you keep notes?

GKAM wrote on January 26, 2008 12:56 PM:

All this discussion is moot.

NOTHING will happen to any of those involved in any of the serious Bush atrocities. The "conservatives" are clever and hateful, and the Domocrats cowards.