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Police can tase you to get DNA

Raw Story reports:

A judge in Niagra County, New York, ruled Thursday that DNA evidence, obtained only after police applied a Taser to a suspect who refused to provide evidence against himself, may be used by the prosecution because the electric shock was not administered with malice. Judge Sara Sheldon Sperrazza, with this 17-page decision, becomes “the first judge in western civilization to say you can use a Taser to enforce a court order,” defense attorney Patrick Balkin said, according to The Niagara Gazette.
“Note that if Smith is guilty, he’s a pretty bad guy,” interjected The Buffalo News. “He’s charged with shooting a man in the groin after invading his ex-girlfriend’s home, tying up her two children and forcing her to take her to the home of the man he shot. He’s also charged with the shotgun-point robbery of a Niagara Falls gas station. DNA was found at both crime scenes.”
Smith, according to reports, had previously agreed to a court order for a DNA sample. But when authorities accidentally spoiled the sample, forcing them to return to the judge for a second order Sperrazza issued it without consulting the defense counsel, thinking the defendant would not mind.
“Smith did object, reportedly telling officers, ‘I ain’t giving it up. You’re going to have to tase me,’” added Buffalo News.
“Which they did, after consulting with a prosecutor, who either told them to use ‘the minimum force necessary’ (according to police testimony at last month’s court hearing) or ‘any means necessary’ (according to a police report written the day of the incident).”
After tasing Smith, a DNA swab was taken without consent.
“They have now given the Niagara Falls police discretion to Taser anybody anytime they think it’s reasonable,” Smith’s attorney said, according to a separate report in The Buffalo News. “Her decision says you can enforce a court order by force. If you extrapolate that, we no longer have to have child support hearings; you can just Taser the parent.”
In the decision’s text, Sperrazza cited a Wyoming case in which a judge ruled police acted legally when they tased a man in order to force him to open his hand relative to a search.
“The Court is certainly concerned that the purpose of the Taser was to inflict pain, and has seriously considered the argument of the defendant that a line is crossed when such government action is sanctioned,” she wrote. “This Court would immediately condemn and sanction the actions of the police if there was any indication that the Taser was used maliciously, or to an excessive extent, or with resulting injury. The Court is convinced by the evidence presented that the exact opposite of those factors was present in this case.
“The court would not advice the government to systematically utilize pain compliance as a standard tool in future similar circumstances, because of the intense scrutiny the use of such tactics would receive from this Court. However, this case is perhaps best described as the ‘perfect storm’ where the crimes being investigated were egregious, the evidence sought highly probative, the intrusion was minimal, and with a subject who steadfastly refused to comply with a lawful court Order. Further, the officers, armed with the Order issued, repeatedly sought the subject’s compliance, explored alternative methods of obtaining the sample, repeatedly warned the defendant of the consequences of his refusal and took steps to minimize the pain inflicted and the potential for injury. There was no malice or desire to injure the defendant.
The argument is very familiar to teh justification that we used to torture

Shocking Grandma

A great-grandmother from the Hill Country has taken on legal representation after being tasered and jailed for resisting arrest.

Last Monday, 72-year-old Kathryn Winkfein was driving home to Granite Schoals after her bi-weekly shopping trip to Austin when she was pulled over by a Travis County Constable deputy. According to authorities, she'd been doing 60 down a 45-mph construction zone on Highway 71 near Bee Creek.

The officer wrote out a ticket to Winkfein and asked her to sign the stub, explaining that her signature wasn't an admission of guilt, but rather a promise to show up for a future court appearance. Winkfein, allegedly belligerent over the matter, refused to sign and asked the officer to take her to jail.

Further exacerbating the situation, Winkfein then got out of her car and proceeded to direct a litany of choice curse words towards the officer, who at that point told her that she would indeed be going to jail. Winkfein became violent, according to the officer, leaving him no choice but to zap the elderly lady her with his taser.

Winkfein was sent to Travis County Jail and booked for resisting arrest and detention. When interviewed by Fox 7 News, she dismissed the official report as being untrue.

"I wasn't argumentative, I was not combative," she said. "This is a lie. All of this is a lie, pulled away from him I did not."

A spokesman for the Constable office backed up the behavior of the arresting officer, saying that the use of a taser on Winkfein was appropriate.

A List of people who have been killed by taser-wielding law enforcement (410 dead so far)

Tasered while Black
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With Pressure Growing over Torture Pics, Obama Turns to Supreme Court to Stop Release
Today, Scott Horton posted a story at The Daily Beast, verifying the authenticity of the British paper's report:
The Daily Beast has obtained specific corroboration of the British account, which appeared in the London Daily Telegraph, from several reliable sources, including a highly credible senior military officer with firsthand knowledge, who provided even more detail about the graphic photographs that have been withheld from the public by the Obama administration.

A senior military officer familiar with the photos told me that they would likely provoke a storm of outrage if released. The well-informed source confirmed, just as reported in the Telegraph, that many of the photographs are sexually explicit, including those mentioned above. The photographs differ from those already officially released.
It took less than a day for the next turn of events. According to a CNN report, the Obama administration has made a motion to recall their request for a hold on the pictures release from the federal appeals court, and will take their request directly to the Supreme Court.
The government said it would proceed "absent intervening legislation" from Congress....
Last week, the Senate voted for the Detainee Photographic Records Protection Act, which would limit the reach of the Freedom of Information Act in this instance. The House could adopt a similar provision next month as part of an omnibus spending bill.
The government has until June 9 to file its initial appeal with the Supreme Court.
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little war criminal abetting ass:

We wouldn't want to inflame anti-American sentiment

We're currently occupying two Muslim countries. We're killing civilians regularly (as usual) -- with airplanes and unmanned sky robots. We're imprisoning tens of thousands of Muslims with no trial, for years. Our government continues to insist that it has the power to abduct people -- virtually all Muslim -- ship them to Bagram, put them in cages, and keep them there indefinitely with no charges of any kind. We're denying our torture victims any ability to obtain justice for what was done to them by insisting that the way we tortured them is a "state secret" and that we need to "look to the future." We provide Israel with the arms and money used to do things like devastate Gaza. Independent of whether any or all of these policies are justifiable, the extent to which those actions "inflame anti-American sentiment" is impossible to overstate.

And now, the very same people who are doing all of that are claiming that they must suppress evidence of our government's abuse of detainees because to allow the evidence to be seen would "inflame anti-American sentiment." It's not hard to believe that releasing the photos would do so to some extent -- people generally consider it a bad thing to torture and brutally abuse helpless detainees -- but compared to everything else we're doing, the notion that releasing or concealing these photos would make an appreciable difference in terms of how we're perceived in the Muslim world is laughable on its face.

Moreover, isn't it rather obvious that Obama's decision to hide this evidence -- certain to be a prominent news story in the Muslim world, and justifiably so -- will itself inflame anti-American sentiment? It's not exactly a compelling advertisement for the virtues of transparency, honesty and open government. What do you think the impact is when we announce to the world: "What we did is so heinous that we're going to suppress the evidence?" Some Americans might be grateful to Obama for hiding evidence of what we did to detainees, but that is unlikely to be the reaction of people around the world.MORE

see also:Obama's latest effort to conceal evidence of Bush era crimes

and About the Foto Flip-Flop

It's inexcusable, Obama's flip-flop on the DOD abuse photos.
Not (just) because I think he's wrong on the law and he'll probably not get Cert with SCOTUS, making this a big pose.
Rather, it's inexcusable because Obama issued new guidelines on FOIA that he now abandons:
The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.
All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.
Granted, a bunch of Generals and Colonels would undoubtedly be embarrassed by the disclosure of abuse that happened on their watch (above all--as Nell suggests--Stanley McChrystal, newly tapped to take over in Afghanistan). Granted, some of those Generals and Colonels (the aforementioned McChrystal) would probably lose their next promotion if these pictures became public. Granted, pundits speculate, abstractly, that the release of another round of torture pictures will inflame the already volatile Iraq and Afghanistan.
But those are all invalid excuses, according to President Obama's own FOIA guidelines. If you're going to set a rule, follow it yourself. http://emptywheel.firedoglake.com/2009/05/13/about-the-foto-flip-flop/">MORE

Isn't it interesting how "god is in the mix" when it comes on to being a homobigot, but is noticeably absent when it comes on to treating people humanely and lawfully? Refraining from breaking international law? Refusing to coddle and protect war criminals?

While we are at it

...A simple fact is being overlooked in the Bush-era torture scandal: the number of cases in which detainees have been tortured to death. Abuse did not only involve the high-profile cases of smashing detainees into plywood barriers (“walling”), confinement in coffin-like boxes with insects, sleep deprivation, cold, and waterboarding. To date approximately 100 detainees, including CIA-held detainees, have died during U.S. interrogations, and some are known to have been tortured to death.
The bottom line is that many detainee homicides in Iraq and Afghanistan were the direct result of approval and orders from the highest levels of government, and that high officials in the government are accomplices. MORE

Yeah. Talk about inciting anti-American sentiment, that. Here's a suggestion. You want to deal with anti-American sentiment cause by the fact that government and army official are torturing. murdering war criminals? PROSECUTE THEM. How about that?


May. 5th, 2009 07:06 pm
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The Jay Bybee Problem

How did Jay Bybee breeze through a confirmation hearing for his appointment to the Federal Appeals Court in February 2003? Not a single Democrat questioned Bybee at the session, and the proceedings came to a quick conclusion. The following month he was confirmed by the full Senate.
Just six months prior to the hearing, Jay Bybee had signed legal memos providing cover for CIA agents torturing detainees -- yet Congress voted him to a lifetime on the federal bench. How did this happen? And what will become of Judge Bybee now?

Daily Kos Diarist Chacounne is running a series entitled: Why I fight against Torture

Triggering. Extreme triggering )
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Sebelius was confirmed last night, sworn in this morning and set right to work on our swine flu

9th Circuit Rejects Obama/Bush State Secrets Argument In Mohammed
A three judge panel of the Ninth Circuit Court of Appeals, Chief Judge Mary Schroeder, William Canby and Michael Hawkins, has firmly rejected the vile cover up attempted against several detainees/former detainees led by Binyam Mohamed. The full decision is here.
I would like to note two things quickly; first off this is a wonderful panel (they are all from Arizona and I have known all of them) and I really expected no less from them. Secondly, it appears from a skimming of the decision that they did not dismiss the ability of the government to assert state secrets, rather indicated the time was not ripe for it. Do not be mistaken, however, this is a big blow to the government and a win for the rule of law.

Glenn Greenwald gives more context:
Major defeat for Bush/Obama position on secrecy
The first sign that the Obama DOJ would replicate many of the worst and most radical arguments of the Bush DOJ was in the Jeppesen case, a lawsuit brought by five victims of the CIA's rendition and torture program (including Binyam Mohamed). The Bush administration had argued that the entire "subject matter" raised by the lawsuit (the rendition program) was such a gravely important "state secret" that the court could not consider any lawsuit relating to that issue. That argument was a by-product of one of the Bush DOJ's most controversial actions: its radical expansion of the "state secrets" doctrine. Whereas that privilege was once an evidentiary privilege enabling the Government to declare specific documents too secret to use in litigation, the Bush DOJ converted it into an all-purpose shield allowing them to have entire lawsuits dismissed even where the lawsuit alleged that the President's conduct was illegal.
The District Court in Jeppesen had accepted the Bush DOJ's argument and dismissed the lawsuit, and on appeal in February, the Obama DOJ -- to the obvious surprise of the judges and in a reversal of everything Democrats claimed they believed during the Bush presidency -- told the Ninth Circuit panel that they embrace the Bush DOJ "state secrets" position in full (a position they've since repeated in other cases).
Today, in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security.MORE
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Daily Kos Diarist Chacounne is running a series entitled: Why I fight against Torture.

Prologue:Omar Khadr's US Lawyer is Re-Assigned

There’s young man in Guantanamo Bay Detention facility, a young man who has been there since he was 15 years old, almost seven years. His name is Omar Khadr. He is a Canadian born in Toronto, Ontario, During that time, and that he has been tortured:
Trigger Warnings. Extreme Trigger Warnings. This was done in our names. )

Why I fight Against Torture Part Two

Murat Kurnaz Murat Kurnaz 3

Mr. Kurnaz was born in Bremen, Germany, had always lived in Germany, and was of Turkish descent. In Germany, those of Turkish descent having a much more difficult time becoming German citizens even those born in Germany. In 2001, he decided to learn more about his religion, Islam, in preparation for his Turkish wife joining him, so he traveled to Pakistan to learn from peaceful Imams. Enroute back to Germany, on December 1, 2001, he was taken off a bus in Pakistan, and taken to a prison in Peshawar, Pakistan, then to Kandahar, Afghanistan, and, finally to Guantanamo Bay, where he remained until August 4th, 2006. {He wroet a book about his experiences and teh following is an excerpt:

In Kandahar:

Did they have a lie detector? I asked myself. The man was holding something in his hands. It looked like two irons that he was rubbing together. Or one of those machines used to revive people who have heart attacks. Before I realized what was happening, I felt the first jolt.

It was electricity. An electric shock. They put the electrodes to the soles of my feet. There was no way to remain seated. It was as though my body was lifting itself off the ground of its own accord. I felt the electric current going through my whole body. There was a bang. It hurt a lot. I felt warmth, jolts, cramps. My muscles cramped up and quivered. That hurt, too.

... I heard screams.

They were my screams


Why I fight against torture Part Three Murat Kurnaz's story continued. The following is an excerpt from his book:

He was young, around my age, maybe nineteen or twenty. He lay on the ground making soft noises.
He didn't have any legs. His wounds were still fresh.

I sat in my cage, hardly daring to look, but every once in a while I had to look in his direction. The stumps of his legs were full of pus. The bandages wrapped around them had turned red and yellow. Everything was bloody and moist. He had frostbite marks on his hands. He seemed hardly able to move his fingers. I watched as he tried to get up. He crawled over to the bucket in his cage and tried to sit on it. He had to go to the toilet. He tried to raise himself up with his hands on the chain-link fence, but he didn't make it. He couldn't hold on with his swollen fingers. Still, he tried, until a guard came and hit his hands with his billy-club. The young man fell to the ground.
Every time he tried to hoist himself onto the bucket, the guards came and hit him on the hands. No one was allowed to touch the fence - that was an iron law. But a young man with no legs? They told him he wasn't allowed to stand up. But how could he have done that without any legs? He wasn't even allowed to lean on the fence or to crawl onto the bucket.
The bandages wrapped around Abdul's stumps were never changed. When he took them off himself, they were full of blood and pus. He showed the bandages to the guards and pointed to his open wounds. The guardsw ignored him. Later, I saw how he tried to wash the bandages in his bucket of drinking water. But he could hardly move his hands, so he wasn't able to. And even if he had, where would he have hung them up to dry? He wasn't allowed to touch the fence. He wrapped his stumps back up in the dirty bandages.MORE

Updated: Why I Fight Against Torture: Part Four

Today I will share the story of Omar Khadr:
Omar Khadr
Omar was born in Toronto, Ontario, Canada. Much has been said about his family and his childhood. It is complicated, and to get the entire background I recommend the Wikipedia article, which has lots of links to the relevent original documents and news articles. I also highly recommend the book "Guantanamo's Child" by Michelle Shephard.
In the end, Omar was captured by US troops in Afghanistan on July 27, 2002, after a firefight during which a grenade was thrown. The grenade killed Sgt. Christopher Speer and allegedly blinded Sgt. Layne Morris in one eye. Omar is accused of throwing that grenade, but documents surfaced last year which cast doubt that he was the one who threw the grenade. He was severely injured in the firefight, including major wounds to his chest and at least one eye.
Omar was 15 years old when he was taken into custody.

Around the time of Ramadan in 2003, an Afghan man, claiming to be from the Afghan government, interrogated me at Guantanamo. A military interrogator was in the room at the time. The Afghan man said his name was "Izmarai" (Lion), and that he was from Wardeq. He spoke mostly in Farsi, and a little in Pashto and English. He had an American flag on his trousers. The Afghan man appeared displeased with the answers that I was giving him, and after some time both the Afghan and the military interrogator left the room. A military official then removed my chair and short-shackled me by my hands and feet to a bolt in the floor. Military officials then moved my hands behind my knees. They left me in the room in this condition for approximately five to six hours, causing me extreme pain. Occasionally, a military officer and the interrogators would come in and laugh at me. MORE

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Where are the CIA's missing prisoners?

Dafna Linzer pointed out at ProPublica Wednesday that, according to Human Rights Watch, 35 suspects known to have been held in secret prisons as far back as 2001 are still unaccounted for.
The Cheney-Bush administration admitted in 2006 that it had secretly held prisoners incommunicado for years at "black sites." In the words of then-CIA Director Michael Hayden, the prisoners totaled somewhat fewer than 100. In September that year, 14 high-level captives from this group were transferred to military custody at the U.S. detention center at Guantánamo Bay. Others were sent to Egypt, Jordan and Pakistan. At the time, however, six human rights groups said 39 other captives were still believed to be held by the CIA.
More than two-and-a-half years later, 35 of these captives remain "disappeared," ghost detainees. Thus, a third of those the CIA once held, if Hayden's 100 figure can be believed, have vanished as surely as the Argentinians who were pushed out of helicopters into the Atlantic in the 1980s. [which the CIA sure as hell had a hand in]MORE

Rachel Breaks down the torture memos in easy to understand pieces: Part 1

torture profiteers on the flip )
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The NYT's predictable revelation: new FISA law enabled massive abuses

In The New York Times last night, James Risen and Eric Lichtblau -- the reporters who won the Pulitzer Prize for informing the nation in 2005 that the NSA was illegally spying on Americans on the orders of George Bush, a revelation that produced no consequences other than the 2008 Democratic Congress' legalizing most of those activities and retroactively protecting the wrongdoers -- passed on leaked revelations of brand new NSA domestic spying abuses, ones enabled by the 2008 FISA law. The article reports that the spying abuses are "significant and systemic"; involve improper interception of "significant amounts" of the emails and telephone calls of Americans, including purely domestic communications; and that, under Bush (prior to the new FISA law), the NSA tried to eavesdrop with no warrants on a member of Congress traveling to the Middle East. The sources for the article report that "the problems had grown out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers."


These widespread eavesdropping abuses enabled by the 2008 FISA bill -- a bill passed with the support of Barack Obama along with the entire top Democratic leadership in the House, including Nancy Pelosi and Steny Hoyer, and substantial numbers of Democratic Senators -- aren't a bug in that bill, but rather, were one of the central features of it. Everyone knew that the FISA bill which Congressional Democrats passed -- and which George Bush and Dick Cheney celebrated -- would enable these surveillance abuses. That was the purpose of the law: to gut the safeguards in place since the 1978 passage of FISA, destroy the crux of the oversight regime over executive surveillance of Americans, and enable and empower unchecked government spying activities. This was not an unintended and unforeseeable consequence of that bill. To the contrary, it was crystal clear that by gutting FISA's safeguards, the Democratic Congress was making these abuses inevitable. MORE
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Countdown: Special Comment to President Obama, You're Wrong on Torture Prosecutions

Glenn Greenwald

Can anyone reconcile these?:
Barack Obama, yesterday:
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.
Eric Holder, yesterday:
It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.
Convention Against Torture -- signed by Reagan in 1988, ratified in 1994 by Senate:
Each State Party shall ensure that all acts of torture are offences under its criminal law (Article 4) . . . . The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. . . . An order from a superior officer or a public authority may not be invoked as a justification of torture.
Geneva Conventions, Article 146:
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.
Charter of the International Tribunal at Nuremberg, Article 8:
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.
U.S. Constitution, Article VI:
[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.
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While at the Office of Legal Counsel, Jay Bybee wrote the "insect memo" to authorize the torture on Abu Zubaydah, an Al Qada operative captured in Pakistan in 2002. His experience became George Bush's prime example for the efficacy of and need for torture. From Bush's 2006 speech:
We knew that Zubaydah had more information that could save innocent lives, but he stopped talking. As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful.


So, the notion that we got anything of value from Zubayda is dubious -- but if we did, why did the CIA destroy the tapes of Zubaydah being tortured? Wouldn't they want it around as proof?

Bybee cites no medical evidenc for determining whether these techniques were "safe" or not, nor -- as Jane Mayer has documented -- was there ever any research into the efficacy of torture as an effective means of questioning. Bybee had no reason to believe, as Bush asserted, that these techniques were designed to be "safe." And contrary to George Bush's claims, the Red Cross has determined that the methods used against Zubaydah are "categorically" torture, which is illegal under both US and international law.
Jay Bybee's job, since 2003, has been sitting on the 9th Circut Court of Appeals, deciding what is an isn't constitutional. In the wake of the release of these documents, which Andrew Sullivan rightly calls an "unprofessional travesty of lawyering," he ought to resign.MORE

More from: Brendan Calling Be careful, pics are disturbing...
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So say the Spanish:
Spanish prosecutors will recommend against opening an investigation into whether six Bush administration officials sanctioned torture against terror suspects at Guantanamo Bay, the country’s attorney-general said Thursday. Candido Conde-Pumpido said the case against the high-ranking U.S. officials — including former U.S. Attorney-General Alberto Gonzales — was without merit because the men were not present when the alleged torture took place.
“If one is dealing with a crime of mistreatment of prisoners of war, the complaint should go against those who physically carried it out,” Conde-Pumpido said in a breakfast meeting with journalists. He said a trial of the men would have turned Spain’s National Court “into a plaything” to be used for political ends.

The Prosecution Conundrum: Torture Detailed, "Nuremberg Defense" Revived & Blanket CIA Immunity

Yesterday, the torture condundrum was spelled out in vivid detail: Spain's Attorney General said prosecutors are recommending against opening an investigation into whether the top-level "Bush Six" sanctioned torture because they were not present when the alleged torture took place. Meanwhile, President Barack Obama said that the CIA officials carrying out torture policies crafted and approved by the Justice Department will not be prosecuted.
Crystal eyes note the absurdity: Absolved because you were ordered to torture by those who are absolved because they were not there.
A brilliant piece of twisted dark logic that renders justice not only blind but impotent.

An entire class of CIA operatives get blanket immunity while people like myself, Thomas Tamm and others who exposed Bush illegality were criminally investigated and are still suffering the fallout.
No one is accountable. Everyone's hands are still dirty.


One law for the rich and powerful, another law for the not so rich and powerful.
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Diana Feinstein trying to whitewash investigation into Bush crimes?

Obama's efforts to block a judicial ruling on Bush's illegal eavesdropping

Obama’s Two “Ifs” on FISA: Heads I Win, Tails You Lose

Briefs on FISA are coming out in Northern California so fast and furious it's hard to keep them straight. Just as a reminder there are two main cases:

* al-Haramain, in which the Bush (and now Obama) Administration has invoked State Secrets to prevent lawyers for the defunct charity al-Haramain from using clear evidence that Bush wiretapped them illegally to prove that Bush wiretapped them illegally
* Retroactive immunity (Jewel/EFF), in which the Electronic Frontier Foundation is challenging the retroactive immunity statute Congress passed last year on Constitutional grounds

The Obama stance on these two cases is worth looking at in conjunction because the Obama position toward congressionally-passed law is perfectly crafted to gut civil liberties (and Article III authority), all based on Obama's interpretation of "if."

Astoundingly, both al-Haramain and retroactive immunity are almost certainly headed for the Appeals Court to rule on the meaning of two "if's" (and one "shall") appearing in FISA-related law. MORE

BREAKING: The 9th Circuit Says State Secrets Can’t Halt al-Haramain Suit

Obama's FISA headache

Obama’s Response to the al-Haramain Smack-Down? Cheneyesque Reasoning

US govt opposes court access for Bagram prisoners

Bait and Switch? Closing Guantanomo Bay and enlarging Bagram
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“Americans are asking, 'Why do they hate us?' They hate what we see right here in this chamber: a democratically-elected government. Their leaders are self-appointed. They hate our freedoms – our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other.”

President George W. Bush, during an address to a Joint Session of Congress and the American people, United States Capitol, Washington, DC, September 20, 2001.

Really, Mr. Ex-Pres.?

Not too long ago, there was this headline: Iraqi woman had 80 women raped then recruited as suicide bombers Naturally, much screaming about Muslim barbarians and such-like epithets ensued. Of course, such things are the province of backward, religious savages, and Westerners would NEVER do such a thing...

The Torture Administration Continued: Former Gitmo Guard Speaks Out

An Army private who served at Guantanamo Bay --- previously deterred by fear of retaliation -- is speaking out about his experiences there. (Harper's) Scott Horton quotes the AP interview:
“The stuff I did and the stuff I saw was just wrong,” he told the Associated Press. Neely describes the arrival of detainees in full sensory-deprivation garb, he details their sexual abuse by medical personnel, torture by other medical personnel, brutal beatings out of frustration, fear, and retribution, the first hunger strike and its causes, torturous shackling, positional torture, interference with religious practices and beliefs, verbal abuse, restriction of recreation, the behavior of mentally ill detainees, an isolation regime that was put in place for child-detainees, and his conversations with prisoners David Hicks and Rhuhel Ahmed. (Harper's; emphasis added) Non-liberal Andrew Sullivan points out the reason why it's so important to consider the source.
We were long told that the grueling accounts of torture, sexual abuse, and mental terror inflicted under orders from president Bush in Guantanamo Bay (and many other sites in the war on Jihadist terrorism) were lies. The testimony came from Jihadists, after all.... But then came the testimony from FBI agents who saw the barbarism authorized in the camp; and increasingly, more and more US service members have come forward to testify to rigged trials, orchestrated sadism, instrumental rape as policy and abuse of medical ethics.
Neely's gone into quite a lot of detail.
Neely’s comprehensive account runs to roughly 15,000 words. It was compiled by law students at the University of California at Davis and can be accessed here.
But just looking at that list I quoted from Horton's article? That's a lot of wrong things right there.
Let's go through the list of things he saw and did that were wrong a little more systematically.
  1. the arrival of detainees in full sensory-deprivation garb
  2. sexual abuse by medical personnel
  3. torture by other medical personnel
  4. brutal beatings out of frustration, fear, and retribution
  5. torturous shackling, positional torture
  6. interference with religious practices and beliefs
  7. verbal abuse
  8. restriction of recreation
  9. an isolation regime...put in place for child-detainees.
Yes, yes, I know. The United States under George W. Bush has not and would never, ever engage in "torture." George W. Bush would never, ever countenance torture unless it was absolutely necessary. It's all in how you define "torture."MORE

A couple of observations for a later posting...: My tax dollars paid for that. So did yours. Our former President Bush, a devoted Christian, pushed for and sanctioned that. And our new spanking President, Mr,. Obama, another devout Christian; seems quite intent on letting the perpetrators all get away with it. Funny that.
Do we still pretend that we abide by treaties?

On Friday in Salon, Joe Conason argued that there should be no criminal investigations of any kind for Bush officials "who authorized torture or other outrages in the 'war on terror'." Instead, Conason suggests that there be a presidential commission created that is "purely investigative," and Obama should "promis[e] a complete pardon to anyone who testifies fully, honestly and publicly." So, under this proposal, not only would we adopt an absolute bar against prosecuting war criminals and other Bush administration felons, we would go in the other direction and pardon them from any criminal liability of any kind.

....I want to focus on an issue that pro-immunity advocates such as Conason simply never address.The U.S. really has bound itself to a treaty called the Convention Against Torture, signed by Ronald Reagan in 1988 and ratified by the U.S. Senate in 1994. When there are credible allegations that government officials have participated or been complicit in torture, that Convention really does compel all signatories -- in language as clear as can be devised -- to "submit the case to its competent authorities for the purpose of prosecution" (Art. 7(1)). And the treaty explicitly bars the standard excuses that America's political class is currently offering for refusing to investigate and prosecute: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture" and "an order from a superior officer or a public authority may not be invoked as a justification of torture" (Art. 2 (2-3)). By definition, then, the far less compelling excuses cited by Conason (a criminal probe would undermine bipartisanship and distract us from more important matters) are plainly barred as grounds for evading the Convention's obligations.
There is reasonable dispute about the scope of prosecutorial discretion permitted by the Convention, and there is also some lack of clarity about how many of these provisions were incorporated into domestic law when the Senate ratified the Convention with reservations. But what is absolutely clear beyond any doubt is that -- just as is true for any advance promises by the Obama DOJ not to investigate or prosecute -- issuing preemptive pardons to government torturers would be an unambiguous and blatant violation of our obligations under the Convention. There can't be any doubt about that. It just goes without saying that if the U.S. issued pardons or other forms of immunity to accused torturers (as the Military Commissions Act purported to do), that would be a clear violation of our obligation to "submit the [torture] case to [our] competent authorities for the purpose of prosecution." Those two acts -- the granting of immunity and submission for prosecution -- are opposites.MORE

And there I was thinking that the West was supposed to be civilized.
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Keith Olbermann interviews Russell Tice - NSA Wistleblower - on Countdown Part One

Breaking: former-NSA whistleblower on KO says domestic spying much worse (How the NSA do it?)

Mr. Tice talked at some length about the difference between large-scale technical surveillance and more focused directed surveillance. If I've understood him correctly, then I think I can explain what he was talking about by using email as an example.

If you were interested in screening huge amounts of email, but didn't have the capacity to capture or store it all, you might decide to just content yourself with the metadata. Metadata is just "data about data". For instance, in the case of email, some interesting metadata might be: (a) what language it's in (b) the sender's address (c) the recipient's address (d) the length in bytes (e) the length in lines (f) what kinds of attachments, if any (g) what mail program was used to compose it (h) what the Subject line was, and so on.

This sort of metadata is relatively easy to extract and takes up a lot less room than the actual data: the metadata for an email message with 2M of photos attached might fit in 1K. (And this is the point where it should dawn on you that similar metadata exists for faxes, phone calls, and every other electronic form of communication.)MORE

Russel Tice on Countdown with Olbermann - part 2

NSA whistleblower Russell Tice on Countdown w/KO, Day Two (update X4)

Yesterday, Russell Tice appeared on Countdown with Keith Olberman (video) (transcript) to talk about large-scale surveillance and data acquisition conducted during the Bush Administration. I wrote about it here, gimmeshelter wrote about it here, and mcjoan wrote about it here.
Tonight, Mr. Tice was back and was joined by James Risen of the NYT.


The two tiers of surveillance that Mr. Tice described consist of all-encompassing metadata acquisition and more tightly focused data acquisition. Here's an example of how that might work (using email to illustrate, as I did yesterday): suppose you know that The Bad Guys all picked up a certain brand of cheap digital camera and that's what they're using to take pictures of potential targets and share them. Suppose that this particular model of camera has a default setting of 1846x948 pixels, and suppose that The Bad Guys are transferring these files around via email, using accounts on free mail providers like Yahoo and Hotmail and Gmail.

What might happen is that somebody writes an algorithm that looks at all the email and flags anything that is to a free mail provider, from a free mail provider, has attached photos, and has attached photos that are 1846x948. That's the first tier, based entirely on metadata.

Whenever a message is found that matches those criteria, the sender and recipient(s) are noted and from then on, everything they send or receive gets vacuumed up. And that extends way beyond email: if the sender's phone number or fax number or IM account or anything else can be identified, then everything associated with those gets included too. And per Mr. Tice's comments about pulling in data from external databases: their credit card records, their bank records, everything else.
That's the second tier, where every scrap of data is picked up.

Which means that if you happened to buy the same cheap digital camera as The Bad Guys and you happen to use Gmail, you're going to be swept up by that same algorithm and all of your data will be given the same special attention as theirs.MORE

James Risen on Countdown with Keith Olbermann

In addition to his two interviews with NSA whistle blower Russell Rice, Olbermann also had on NY Times journalist James Risen who first broke the story about this program in 2005.

Of Privacy, Terrorist Surveillance and Data Mining (v2.0)

?While the NSA and DHS do have not to date publicly discussed the specifics of their surveillance programs, we now have a whistle blower confirming that they do indeed exist, and that they are using machine learning and data mining techniques.

The sort of automated machine learning techniques that appear to be utilized by the NSA are are fairly common these days; on-line retailers use them to detect fraud, credit card companies use them to detect stolen cards, lenders (whether they actually use the results or not) use them to determine loan risks, and advertisers use them extensively to target ads.MORE

Questions to Ponder: The Societal Ramifications of Government Data Mining

What happens, as a society, to us when our expectation of privacy is degraded, knowing that there is at least a chance that any electronic communication will be viewed by a stranger, let alone the government? How does the change in expectation of privacy change how we view ourselves? Our other views on our expectations of privacy? Our other freedoms? Other people's freedoms?


With the technical and non-technical (e.g., political, organizational, people level security, etc.) considerations taken into account, how does one prevent blackmail situations? How does one prevent those who run the system from using the data for personal gain?

Who would have access to the data collected, or portions of the data? Does one have the right to view one's own data set? If so, can one ask that mistakes be corrected? Who is responsible for the correctness of the data? Would corporations be able to, in any manner gain access to the data? Could one be able to look at a family member's data? A friend's? A stranger's? Could the data be sold? Could the data be subpoenaed in non-terrorist criminal and civil proceedings? Could it be used for as the basis for credit ratings? Could it be used by the IRS? By debt collectors? Could the military use it in the context of "don't ask, don't tell"?

How does one secure the system from hackers? And not just the actual data repositories, but also, the collection taps and the communication between those taps and the repositories. Compromising such a system would become the Holy Grail of identity thieves. Such a system would also become the primary target in e-warfare; a centralized repository with that level of information about every single US citizen would be irresistible. Computer security is a never ending competition in which the good guys can never loose a single round, but the bad guys only need to win once to achieve victory. Are we willing to take the risk of massive data theft inherent in having such a system?MORE

Will someone please explain to me why this story isn't headline news around the traditional media?
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Obama seeks halt to Guantanamo trials

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) – Hours after taking office on Tuesday, U.S. President Barack Obama ordered military prosecutors in the Guantanamo war crimes tribunals to ask for a 120-day halt in all pending cases.

Military judges were expected to rule on the request on Wednesday at the U.S. naval base in Guantanamo Bay, Cuba, an official involved in the trials said.

The request would halt proceedings in 21 pending cases, including the death penalty case against five Guantanamo prisoners accused of plotting the September 11 hijacked plane attacks that killed nearly 3,000 people.

Prosecutors said in their written request that the halt was "in the interests of justice."

Obama has pledged to shut down the Guantanamo prison camp that was widely seen as a stain on the United States' human rights record and a symbol of detainee abuse and detention without charge under the administration of his predecessor, former President George W. Bush.MORE

WOOT!!!! Do I need to make this another tag?
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Bush Scandals list It actually stops at 399, for gods sake.

Table of Contents

Reflection on List by the Author

To be blunt, the reason there was a need for the list at all was because the media and the Democratic party didn’t do their jobs. The media did not report, underreported, misreported or reported far too late to matter most of what went on in the last 8 years. They fed us narratives filled with talking points, not facts. Access and he said / she said reporting became the order of the day. Real journalism occurred by accident or was perpetrated by a lonely few. Meanwhile the Democrats refused to raise any opposition and found silence and complicity the better part of valor. So to create the list I had to do what all of us in the blogosphere have had to do. I had to pick among the media, unpack, unspin, and deconstruct their narratives. I went to primary sources. And I did this not alone but benefiting from the collective effort of us all.

And what I found horrified me.

Our government has been hollowed out. It is not just the Justice Department but all departments and agencies whose mission it was to help citizens that were filled with Bush appointees whose job it was to dismantle them. Interior became a playground for drilling, mining, and developers, Labor for Big Business, the EPA for polluters, Energy for oil and gas companies, the Pentagon for neocons, the SEC for Wall Street. Nor was it just the top echelons where this rot occurred but went down to the fourth and fifth tiers, to the Monica Goodlings and Kyle Sampsons. And it wasn’t here or there but across the board that this demolition of our government occurred.

Our government has been looted. It began with tax cuts for the wealthy and corporations. It continued with the promotion of deregulation and the financial bubbles. It is finishing with us on the edge of depression. While the rest of the economy falls apart the government continues to announce one monster bailout of the financial industry after another.

Our Constitution and the rule of law have been trashed. The last 8 years saw the creation of a Presidential dictatorship: torture, indefinite detention, kidnapping, spying, kangaroo courts, signing statements, illegal wars, and for all these things there was no accountability, none.

What I hope the list conveys in its own imperfect way is that these were not isolated events committed by a few people. This was an undertaking that thousands in the Bush Administration worked on day in day out for 8 years. This was their job. They made a career out of doing in our government, and we were paying them to do it.

And yet, Americans did not take to the streets. Democrats did not oppose. The media cheered on. As I said, my list is a judgment on George Bush. He is the worst President in our history. My list is a testament to that fact. But it is also a judgment on us because we let it happen. Yes, some of us spoke out, but the question that haunts many of us, and certainly me, is could we have done more.
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Keith Olbermann Special Comment: Prosecute Bush For Torture

Glenn Greenwald:

It seems fairly easy -- even for those overtly hostile to the basic rules of logic and law -- to see what conclusions are compelled by these clear premises:

Associated Press, April 11, 2008:
Bush administration officials from Vice President Dick Cheney on down signed off on using harsh interrogation techniques against suspected terrorists after asking the Justice Department to endorse their legality, The Associated Press has learned.
The officials also took care to insulate President Bush from a series of meetings where CIA interrogation methods, including waterboarding, which simulates drowning, were discussed and ultimately approved. . . .
The meetings were held in the White House Situation Room in the years immediately following the Sept. 11 attacks. Attending the sessions were Cheney, then-Bush aides Attorney General John Ashcroft, Secretary of State Colin Powell, CIA Director George Tenet and national security adviser Condoleezza Rice.
Agence France-Presse, October 15, 2008:
The administration of US President George W. Bush authorized the CIA to waterboard Al-Qaeda suspects according to two secret memos issued in 2003 and 2004, The Washington Post reported Wednesday.


CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment (signed by the U.S. under Ronald Reagan):
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture. . . .
Article 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
Article 7
1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
Article 15
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
Ronald Reagan, 5/20/1988, transmitting Treaty to the U.S. Senate:
The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.
U.S. Constitution, Article VI:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Soon-to-be Attorney General Eric Holder, 1/15/2009 (repeatedly):
"No one is above the law."
These premises -- conclusively established by undisputed news reports and the statements of the person about to become the country's top law enforcement officer as well as a top Bush official -- are clear, and the conclusions they compel are inescapable. The Bush administration authorized, ordered and practiced torture. The U.S., under Ronald Reagan, legally obligated itself to investigate and prosecute any acts of torture committed by Americans (which includes authorization of torture by high level officials and also includes, under Article 3 of the Convention, acts of "rendering" detainees to countries likely to torture, as the Bush administration unquestionably did). MORE

D-day: No commissions. They don't fucking work

When Richard Nixon resigned in August 1974, the United States concluded one of the most traumatic chapters in its history. During the Watergate scandal, Americans had been shocked by the crimes of the Nixon presidency. Investigations by the press and Congress had exposed previously unimaginable levels of corruption and conspiracy in the executive branch. The public's faith in government had been shaken; indeed, the entire "system" had been tested. Now, with Nixon's resignation, two years of agonizing revelations finally seemed to be over. The system had worked.

Yet only four months later, New York Times reporter Seymour Hersh disclosed that the government's crimes went beyond Watergate. After months of persistent digging, Hersh had unearthed a new case of the imperial presidency's abuse of secrecy and power: a "massive" domestic spying program by the Central Intelligence Agency (CIA). According to Hersh, the CIA had violated its charter and broken the law by launching a spying program of Orwellian dimensions against American dissidents during the Vietnam War. The Times called it "son of Watergate."

These revelations produced a dramatic response from the newly energized post-Watergate Congress and press. Both houses of Congress mounted extensive, year-long investigations of the intelligence community. These highly publicized inquiries, headed by experienced investigators Senator Frank Church and Congressman Otis Pike, produced shocking accusations of murder plots and poison caches, of FBI corruption and CIA incompetence. In addition to the congressional inquiries, the press, seemingly at the height of its power after Watergate, launched investigations of its own. The New York Times continued to crusade against CIA abuses; the Washington Post exposed abuses and illegalities committed by the FBI; and CBS's Daniel Schorr shocked the nation by revealing that there might be "literal" skeletons in the CIA closet as a result of its assassination plots.

In this charged atmosphere, editorial writers, columnists, political scientists, historians, and even former officials of the CIA weighed in with various suggestions for reforming an agency that many agreed had become a ''monster.'' Several policymakers, including presidential candidates Fred Harris and Morris Udall, called for massive restructuring or abolition of the CIA. Media and political pundits suggested banning CIA covert operations; transferring most CIA functions to the Pentagon or the State Department; or, at the very least, devising a new, strict charter for all members of the intelligence community.

Few barriers seemed to stand in the way of such reforms. The liberal, post-Watergate Congress faced an appointed president who did not appear to have the strength to resist this "tidal shift in attitude," as Senator Church called it. Change seemed so likely in early 1975 that a writer for The Nation declared "the heyday of the National Security State', to be over, at least temporarily.

But a year and a half later, when the Pike and Church committees finally finished their work, the passion for reform had cooled. The House overwhelmingly rejected the work of the Pike committee and voted to suppress its final report. It even refused to set up a standing intelligence committee. The Senate dealt more favorably with the Church committee, but it too came close to rejecting all of the committee's recommendations. Only last-minute parliamentary maneuvering enabled Church to salvage one reform, the creation of a new standing committee on intelligence. The proposed charter for the intelligence community, though its various components continued to be hotly debated for several years, never came to pass.

The investigations failed to promote the careers of those who had inspired and led them. Daniel Schorr, the CBS reporter who had advanced the CIA story at several important points and eventually had become part of the story himself, was investigated by Congress, threatened with jail, and fired by CBS for his role in leaking the suppressed Pike report. Seymour Hersh's exposes were dismissed by his peers as "overwritten, over-played, under-researched and underproven." Otis Pike, despite the many accomplishments of his committee, found his name linked with congressional sensationalism, leaks, and poor administration. Frank Church's role in the investigation failed to boost his presidential campaign, forced him to delay his entry into the race, and, he thought, might have cost him the vice presidency.

This was immediately post-Watergate, probably the most likely time in history for the government and the press to be able to change the way things were done. The new congress, the bumbling appointed president, the country's weariness with Vietnam and the shocking revelations of Nixonian overreach all argued in favor of the congress being able to step up and make serious changes. And I actually thought they did. But I misremembered. The sturm and drang of the period and my own youthful political leanings led me to believe that the Pike and Church Committees resulted in real reforms. And because it so damaged the careers of so many of those involved who tried, the political lesson is pretty stark.MORE
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"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Except when the Supreme Court says nuh-oh In short, this gives the police even more fucking power over citizens that they don't need. And they say LIBERALS are activist judges.

Full excerpt


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