Category: Justice

Maybe Now Mukasye Can Say if Waterboarding is Torture

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During his confirmation hearings, Mukasey said that he would not be able to make a determination as to whether waterboarding was torture until after he consulted with the DoJ and intelligence officials about what was going on, and what legal justifications were used.

Well, Mukasey is appearing before the Senate next week, and Senators have figured that he has had plenty of time to get their answer:

January 23, 2008
The Honorable Michael Mukasey
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

Dear Attorney General Mukasey:

On October 23, 2007, we wrote to you to ask you whether the abusive interrogation technique known as waterboarding is illegal.

On October 30, you responded that waterboarding and other abusive techniques “seem over the line or, on a personal basis, repugnant to me.” You said that you could not offer an opinion on the legality of waterboarding based on “hypothetical facts and circumstances” because you had not been briefed on the government’s interrogation techniques: “Legal opinions should treat real issues. I have not been briefed on techniques used in any classified interrogation program conducted by any government agency.” However, you committed that, “if confirmed I will review any coercive interrogation techniques currently used by the United States Government and the legal analysis authorizing their use to assess whether such techniques comply with the law.”

You were confirmed as Attorney General on November 8, 2007. On November 9, Senators John McCain and Lindsey Graham sent you a letter stating, “The scenarios you previously described as hypothetical are no longer so, and you now have the benefit of full access to classified programs and memoranda. We urge you to acquaint yourself immediately with these matters and take the opportunity to make clear that waterboarding is illegal and can never be employed.”

It has been over two months since then, ample time for you to study this issue and reach a conclusion. On November 27, State Department Legal Advisor John Bellinger said you were giving “high priority” to reviewing interrogation techniques, claiming, “I think there is a growing recognition … about the need for greater clarity about what is permitted and what is prohibited.”

Your failure to say whether waterboarding is legal has placed Judge Mark Filip, the nominee for Deputy Attorney General, in a difficult position. When Judge Filip was asked at his confirmation hearing whether waterboarding was unlawful, he was unwilling to answer because you were studying the issue: “[T]he Attorney General of the United States is presently reviewing that legal question. … I don’t think I can, or anyone who could potentially [be] considered for his deputy, could get out in front of him on that question while it’s under review.”

We are concerned that your silence poses a more serious threat to American servicemembers. As we noted in our October 23rd letter:

Your unwillingness to state that waterboarding is illegal may place Americans at risk of being subjected to this abusive technique. If the United States does not explicitly and publicly condemn waterboarding, it will be more difficult to argue that enemy forces cannot waterboard American prisoners.

This concern was highlighted recently during “The Legal Rights of Guantanamo Detainees: What Are They, Should They Be Changed, and Is an End in Sight?” a hearing of the Senate Judiciary Committee’s Subcommittee on Terrorism, Technology and Homeland Security on December 11. Brigadier General Thomas Hartmann, Legal Advisor to the Convening Authority for the Office of Military Commissions, refused to say whether it would be legal for the Iranian government to subject an American citizen to waterboarding. He also testified that it is possible that information obtained through waterboarding could be introduced as evidence in a military commission.

In stark contrast to Brigadier General Hartmann’s refusal to say whether it would be illegal to waterboard an American, Director of National Intelligence Mike McConnell recently opined that waterboarding would be torture if used against him. According to The New Yorker, DNI McConnell said, “If I had water draining into my nose, oh God, I just can’t imagine how painful! Whether it’s torture by anybody else’s definition, for me it would be torture.”

Please respond to the following questions:
1. Is the use of waterboading as an interrogation technique illegal under U.S. law, including treaty obligations?

2. Based on your review of other coercive interrogation techniques and the legal analysis authorizing their use, what is your assessment of whether such techniques comply with the law?

Thank you for your time and consideration.

Sincerely,

Richard J. Durbin
Patrick J. Leahy
Edward M. Kennedy
Joseph R. Biden, Jr.
Herb Kohl
Dianne Feinstein
Russell D. Feingold
Charles E. Schumer
Benjamin L. Cardin
Sheldon Whitehouse

And From the Fascist Wing of the Catholic Church

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St. Louis Archbishop Raymond Burke calling for Rick Majerus, the St. Louis University basketball coach, to be disciplined for making a campaign appearance for Hillary Clinton and expressing support for Roe v. Wade.

This is not a priest, this is not a professor in the divinity department, this is a freaking BASKETBALL COACH.

I understand that St. Louis University is a Catholic school, but demanding that employees who have absolutely nothing to do with the religious mission of the school have to toe their political is outrageous, particularly given this:

Last year, St. Louis U. celebrated a legal victory that affirmed it is not controlled by the Catholic church or by its Catholic beliefs.

The Missouri Supreme Court agreed with the school in handing down a decision that the city of St. Louis did not violate state and federal constitutions by granting the university $8 million in tax increment financing for its new arena.

Opponents of the $80 million arena sued the school in 2004, halting construction.

The Missouri Constitution prohibits public funding to support any “… college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever.”

The debate came down to two words: “control” and “creed.” Does the guiding mission of a Catholic university align with the specific system of religious faith espoused by the Catholic church? And if so, does that system of faith control the actions of the university?

In a 6-1 decision, the court said SLU “is not controlled by a religious creed.”

As I recall*, Rush Limbaugh’s cousin, Stephn N. Limbaugh, Jr. serves on this court, and had been nominated by Bush to the U.S. District Court for the Eastern District of Missouri.

Hmmm….I guess that Rush is the smart one of his family…Scary thought.

*And by, “As I recall”, I mean checking the Wiki.

Telethon For Democrats Without Balls, FISA Edition

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Really. I’m serious.

Here is Harry Reid, getting ready to completely capitulate on civil rights protection and telco immunity in the FISA update.

I should note that once again, Chris Dodd is excluded from my approbiation, as he is still threatening a filibuster on telco immunity.

Glenn Greenwald nails it:

Here we have a perfect expression of the most self-destructive Democratic disease which they seem unable to cure. More than anything, they fear looking ‘weak.’ To avoid this, they ‘cave’ and surrender and capitulate and stand for nothing. As a result, they are, as here, endlessly described in the media as ‘caving’ and surrendering. As a result, they look (and are) weak. It’s a self-destructive cycle that has no end.

I want my party back.

How about we try voodoo to raise Harry S Truman and Lyndon Baines Johnson from the grave, and send them to Congress to bitch slap Reid and Pelosi.

It’s like throwing away an impeachment investigation, even as just a technique to extract documents, because it trumps executive privilege.

NOT ON THE TABLE! NOT ON THE TABLE!

Padilla Sentenced to 17 Years

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The prosecution asked for life, and for the U.S. District Judge Marcia Cooke to ignore the fact that he was tortured for 3½ years, but the judge disagreed, and further disagreed about the severity of the offense

“There is no evidence that these defendants personally maimed, kidnapped or killed anyone in the United States or elsewhere,” Cooke said. “There was never a plot to overthrow the United States government.”

…

In arriving at Padilla’s sentence, Cooke said she took into account the harsh, isolated conditions he faced during his time in a brig as an enemy combatant after his 2002 arrest. Defense lawyers claim he was tortured by the military, but U.S. officials denied that and Cooke never used the word torture.

Sentencing guidelines had suggested a range of between 30 years and life for all three, but Cooke used her discretion to go below even the minimum. Besides Padilla’s sentence, Hassoun got 15 years and eight months and Jayyousi 12 years and eight months.

It’s nice to see the prosecutors getting slapped down, at least a little over torture.

Probation Office Recommends 60 Years for Wilkes

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Yes, Randy “Duke” Cunningham, the gift that keeps on giving. the probation office of the DoJ has recommended, Brent Wilkes, who bribed Cunningham, and might have other bribes outstanding, be given a 60 year sentence.

Note that this is the probation office, not the prosecutor.

Judges take these recommendations rather seriously.

If Wilkes other figures that he can roll on, now would be a good time for him.

The US Attorney Firing Scandal Continues

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It appears that the investigations by the DoJ’sof Inspector General (OIG) and the Office of Professional Responsibility (OPR) are picking up steam.

Investigators from these offices have been questioning whether senior officials lied to Congress, violated the criminal provisions in the Hatch Act, tampered with witnesses preparing to testify to Congress, obstructed justice, took improper political considerations into account during the hiring and firing of U.S. attorneys and created widespread problems in the department’s Civil Rights Division, according to several people familiar with the investigation.

The internal Justice Department probe cannot bring charges but can refer findings to a U.S. attorney for the District of Columbia or a special prosecutor, who could then pursue a criminal investigation. One source close to the investigation expects the offices to issue a scathing report within the next three months, but they have not announced a timeline for their joint inquiry.

In addition, it appears that the Senate Ethics Committee has spent money to send investigators to Arizona, where former US Attorney David Iglesias alleged that Sen. Pete Domenici (R-N.M.) and Rep. Heather Wilson (R-N.M.) pressured him to engage in prosecutions for political gain.

We have allegations of violations of the Hatch Act and obstruction of Justice by some of the people involved.

The Hill expects for a report to be issued in the next few months, but I think that the DoJ will get it pushed back until after the elections.

Is a Password Protected by the 5th Amendment?

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There is a general principal in US law, that one can be compelled to turn over physical evidence, but not the contents of one’s mind, as that is protected by the 5th amendment.

So, you can be compelled to turn over a key to a lock, but not a combination. There is a fairly long legal precedent.

This case asks what it means if the lock is unbreakable, or nearly so.

Case in brief: A Canadian, on crossing the US border, was told to show the contents of his hard drive, which he did, and some of the contents were deemed by the border guard to be likely child porn, though it’s unclear of this was simply random files in the cache, or Manga, or real kiddie porn.

The machine was confiscated, and subsequently turned off.

When it was restarted, its demanded a password, since the contents had been encrypted with PGP, and were inaccessible, and Magistrate Judge Jerome J. Niedermeier has ruled that compelling him to turn over his password violates the 5th amendment.

The prosecutors are appealing saying the standard stuff about terrorism, etc.

I’m with Marc Rotenberg, executive director of the Electronic Privacy Information Center, who has said, “The consequence of this decision being upheld is that the government would have to find other methods to get this information, but that’s as it should be. That’s what the Fifth Amendment is intended to protect.”

He’s right. If you hooked up this guy’s drive to a supercomputer, and ran it for a few months, and maybe less if you brought in some experts from the NSA, at the cost of a few million dollars, you’d probably crack the password, because even the best people don’t choose truly random passwords.

Inconvenient, yes, but inconvenience is not a basis for emasculating the Bill of Rights.

I generally oppose any granting any power to the government to either judge one based on the contents of one’s mind (hate crime laws), or to force revalation of the contents of one’s minds.

See In Child Porn Case, a Digital Dilemma.

New CIA Tape Coverup

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The Washington Post has a farily good rundown on the CIA tape destruction.

I think that it’s increasingly evident that this was intended to avoid congressional and criminal scrutiny.

I think that it’s also very likely that some tapes were missed, and they will find their way into investigators hands, where there may be criminal issues.

I understand that the torturers were being “good Germans”, but that is no defense.

I further understand that there will be no small number of people who will demagogue this issue for political gain, making any prosecution near-impossible.

This is why I support the US signing onto the International Criminal Court (ICC) in the Hague.

Our politics, and judiciary, have been so poisoned that we are unable to pursue justice in such cases.

FWIW, prosecuting torture is not about our victims, though doubtless some were innocents tortured by mistake, but about who we are.

Justice Deptartment Says State Department Offers of Immunity Make Prosecution Difficult

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Gee, I wonder if those offers of immunity, which make complication prosecution because they, “might make it difficult to prove that evidence gathered by federal prosecutors did not stem from statements made by the guards after they were promised limited immunity,” have anything to do with the fact that this guy is a loyal Republican donor from a family of loyal Republican donors.

It certainly seems that Blackwater has been using State to run interference on drunken murder, fraudulent billing practices, and human sacrifice.

OK, the last one is pulled out of my ass, but I’m going BillO here.

Yeah, Right, “Recycled Tapes”, and the Dog Ate My Homework

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Yes, all those emails from the time of the Valeria Plame outing, reused and overwritten in a “consistent with industry best practices”.

Remember yesterday’s post on the lies of our times, this one needs to be added.

Not only are these clearly government records which require retention, but these tapes have been used in investigations going back to Iran-Contra.

They knew that this could be used as evidence, and they knew that it had been used as evidence, and they deliberately decided to destroy this evidence.

This Is One of the Most Heroic Things I’ve Ever Heard

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Mercy is sometimes a very difficult thing. It is sometimes a mark of a sort of strength that I can’t even imagine where it comes from.

Here we have the parents of a toddler asking prosecutors to show leniency toward the twelve year old perpetrator.

He beat their baby to death with a baseball bat, and they are asking for the prosecutors not to prosecute, and if they do, to prosecute as a minor.

I don’t know where they find the strength.

Justice Department Supports DC Handgun Ban

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Once again, we find a case where all the NRA Republicans think that the 2nd amendment as they define it stops where they live and work. In their brief to SCOTUS, the Justice Deptartment has said that the appellate court ruling was over broad.

It’s because these guys live and work in DC, and they are worried what will happen to them if black people are allowed to carry guns.

Gun control for me, but not for thee, I guess.

OK, Mukasey Actually Appears to Be Doing His Job

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Well, knock me over with a sledge hammer, it appears that Attorney General Mukasey is actually doing his job, at least in what has become the minority voting suppression division of the Justice Department under Bush and His Evil Minions™.

I’m pleasantly surprised, though Abu Gonzalez actually made me nostalgic for John Freaking Ashcroft, so it is a low bar.

First, John “Minorities will be Dead Soon” Tanner has resigned as head of the voting rights section, and is moving to the Office of Special Counsel for Immigration-Related Unfair Employment Practices in December, and last friday, his replacement, Christopher Coates, who was promoted from within the section, demoted Tanner’s former deputy chiefs, Susana Lorenzo-Giguere (who drew a salary while living at her Cape Cod vacation home) and Yvette Rivera (who has been accused of discriminating against blacks on staff).

Of note is that Rivera is being replaced by Tim Mellett, who was one of the professional staff who issued a report, subsequently overruled by the political appointees , that Tom Delay’s Texas redistricting was illegal.

No Telco Immunity for a While

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As a result of Dodd’s activism against Telco immunity, Harry Reid has decided not to attempt to pass such a provision while Bush is still in office. Instead, he’s looking at extending the last bill for another 18 months. (Note the article linked is a WSJ editorial, and so it is in many ways factually inaccurate where there are clear facts, and wrong in its analysis, read only if you have a strong stomach or an affection for dark humor)

Still, this is not good enough. The “Protect America Act” is an assault on the constitution and its principles. It should not be extended a day, much less 18 months.

Dodd is now out of the Presidential race, but in 2000, he lost to Daschle in a race for the Senate Democratic leader, and he should challenge Reid next time.

SCOTUS to Review McCain-Feingold “Millionair’s Amendment”

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When McCain and Feingold were writing their campaign finance law, they had to deal with the problem of self financing candidates. If a multimillionaire wanted to run, and spend millions of his own money, the court decisions had explicitly made it clear that this was protected by the first amendment.

Their solution was to allow candidates facing a rich self-funding to accept larger donations, which the Supreme Court will now be reviewing the case, Davis v. FEC, which affirmed the law.

Blackwater Destroys Physical Evidencem

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Here’s a surprise, after flipping out and indiscriminately spraying civilians with bullets, the Blackwater mercenaries security contractorspatched and repainted their trucks almost immediately.

The repairs essentially destroyed evidence that Justice Department investigators hoped to examine in a criminal case that has drawn worldwide attention. The Sept. 16 shooting has strained U.S. relations with the Iraqi government, which wants Blackwater expelled from the country. It also has become a flash point in the debate over whether contractors are immune from legal consequences for their actions in a war zone.

They knew that there was going to be an investigation, and they knew that the physical evidence was important, and they still destroyed it.

This is a slam dunk for obstruction of justice.

Regardless of your position on mercenaries private security contractors, it’s clear that Blackwater conducts their business in such a way that they should be shut down.

Of course, unlike the scariest bitch you’d ever want to meet, Martha Stewart, the management of the firm is Republican, so there will probably be no legal repurcussions.