AP's Past in Print » law

Gaffney’s ‘Mathematically Absurd’ Warning of ‘Stealth Jihad’

AP — Wed, 27 Oct 2010 03:47:13 +0000

I’ve been meaning to do a follow up on the below post for some time but haven’t had the chance. For something more current (and more articulate) check out Bob Smietana’s new article at The Tennessean. Here’s a snip from ‘Anti-Muslim crusaders make millions spreading fear‘:

JOHN PARTIPILO / FILE / THE TENNESSEAN

That’s how many dollars Emerson’s for-profit company — Washington-based SAE Productions — collected in 2008 for researching alleged ties between American Muslims and overseas terrorism. The payment came from the Investigative Project on Terrorism Foundation, a nonprofit charity Emerson also founded, which solicits money by telling donors they’re in imminent danger from Muslims.

Emerson is a leading member of a multimillion-dollar industry of self-proclaimed experts who spread hate toward Muslims in books and movies, on websites and through speaking appearances.

Leaders of the so-called “anti-jihad” movement portray themselves as patriots, defending America against radical Islam. And they’ve found an eager audience in ultra-conservative Christians and mosque opponents in Middle Tennessee. One national consultant testified in an ongoing lawsuit aimed at stopping a new Murfreesboro mosque…

That ‘national consultant’ is the subject of the below.

Crossposted from Care2.com ~ Originally published 6 October 2010

AARON THOMPSON / FILE / GANNETT TENNESSEE

Former Deputy Assistant Secretary of Defense during the Reagan administration Frank Gaffney appeared in a Tennessee courtroom Monday, Sept. 27, to offer his “expert” testimony on behalf of four plaintiffs seeking an injunction to prevent the construction of the Islamic Center of Murfreesboro, commonly referred to as the Murfreesboro mosque.

From the Murfreesboro Post:

“I’m here to warn this community of seditious acts of Sharia Law,” Gaffney said. “And that threat has trickled down to local governments.”

Gaffney’s testimony carried little weight with the Judge, the witness having clarified the true nature of his expertise to the court:

“I don’t hold myself out as an expert on Sharia Law,” Gaffney told the court on the witness stand. “But I have talked a lot about that as a threat.”

This is exactly what Gaffney is an expert at — scaring the crap out of people regarding a topic, on which, he is decidedly NOT an expert.

Two days after his court testimony, Gaffney went on CNN to discuss the Murfreesboro case with Anderson Cooper and Akbar Ahmed, former Pakistani diplomat, presently the chair of Islamic studies at American University (h/t TPMMuckraker). In the below clip, Cooper starts with Gaffney, asking the president of the Center for Security Policy to elaborate on the “red flags” signaling the onset of Sharia infiltration.

Gaffney’s opening was curious. “Well, several were introduced into evidence during the court proceedings,” Gaffney told Cooper. While such items may have been introduced into evidence, it doesn’t mean they’ll have any bearing on the Court’s conclusions. And, as the Murfreesboro Post reported, much of Gaffney’s testimony was objected to by the County attorneys and their objections were subsequently sustained by the Judge.

What follows from Gaffney is the standard neoconservative misrepresentation of Sharia and overstatement of the threat, which, in Gaffney’s warped view, poses an existential threat to America by way of “stealth jihad.”

Watch the clip or read the CNN transcript for the details of Gaffney’s foolish paranoia. Also be sure to read Rachel Slajda’s Sept. 23 TPMMuckraker piece recounting the origins of the neoconservative war on Sharia. Here, however, consider Ahmed’s response to Gaffney on CNN as he puts the likelihood of Sharia replacing the U.S. Constitution in its proper perspective:

If every Muslim in the United States of America, which is about 2 percent of the population, wanted Sharia — which is not the case at all — even if they wanted it, could they impose it over a population of 98 percent who are not Muslim in a democracy?

In my country where I come from, Pakistan, 98 percent of the population is Muslim. There is no Sharia law. I’ve been a commissioner in charge of large parts of the country. Our laws are criminal and civil procedure codes derived from British colonial law which go to Westminster, which in turn has influenced the U.S. Constitution.

So the notion of Sharia being implemented in America with about 2 percent of the population, to me, is mathematically absurd.

(CNN clip via Media Matters Action)

The court battle over the Murfreesboro mosque is in recess until Oct. 20, but its outcome is a foregone conclusion. The legal arguments presented by opponents of the project — that county officials didn’t provide sufficient public notice during the approval process — are baseless. The whole sorry episode, much like the inflated controversy over the Park 51 community center in lower Manhattan, is sideshow propaganda from one group of clash-of-civilization types directed at another. For a sideshow, however, as Glenn Greenwald, Greg Sargent, and Jonathan Chait argued last month, its pursuit could have significant, possibly dire, consequences for America.

Most concerning at present, though, is that Gaffney’s convoluted conspiracy spew, once relegated to the neocon fringe, is now treated as plausible.

Salon’s Joe Conason recalls Gaffney’s 2003 alarmism aimed at prominent conservative Grover Norquist and the Bush administration for “… engagement with Muslim groups that [Gaffney] and others [anti-Park51 crusader Pamela Geller among them] had identified as jihadist or radical.” Few conservatives paid them any mind back in the day. ”All that has changed since the inauguraton of a president whose middle name is Hussein and whose father was Muslim,” Conason writes, “because he provides a central focus for a politicized campaign against Islam…”

Now, potential 2012 GOP candidates for president seem content to wear their hatred of Islam on their sleeves. Whether it’s Sarah Palin’s petty invocations of the president’s middle name, or Newt Gingrich’s steadfast adherence to the neocons’ fear mongering message, Islamophobia stands to be a prominent feature on the Republican policy platform for the foreseeable future.

Related on Care2:

Related Elsewhere:

t r u t h o u t ~ Ex-Bush Official Willing to Testify Bush, Cheney Knew Gitmo Prisoners Innocent

AP — Tue, 20 Apr 2010 01:16:20 +0000

by: Jason Leopold, t r u t h o u t | Report ~ Orignially Published, 9 April 2010

(Image: Lance Page / t r u t h o u t; Adapted: amarine88, Bebopsmile,ImageAbstraction, JoesSistah...)

Former Secretary of Defense Donald Rumsfeld once declared that individuals captured by the US military in the aftermath of 9/11 and shipped off to the Guantanamo Bay prison facility represented the “worst of the worst.”

During a radio interview in June 2005, Rumsfeld said the detainees at Guantanamo, “all of whom were captured on a battlefield,” are “terrorists, trainers, bomb makers, recruiters, financiers, [Osama Bin Laden's] body guards, would-be suicide bombers, probably the 20th hijacker, 9/11 hijacker.”

Click here to listen to Truthout’s Jason Leopold discuss this story on The Peter B. Collins show (mp3).

But Rumsfeld knowingly lied, according to a former top Bush administration official.

And so did then Vice President Dick Cheney when he said, also in 2002 and in dozens of public statements thereafter, that Guantanamo prisoners “are the worst of a very bad lot” and “dangerous” and “devoted to killing millions of Americans, innocent Americans, if they can, and they are perfectly prepared to die in the effort.”

Now, in a sworn declaration obtained exclusively by Truthout, Col. Lawrence Wilkerson, who was chief of staff to former Secretary of State Colin Powell during George W. Bush’s first term in office, said Bush, Cheney, and Rumsfeld knew the “vast majority” of prisoners captured in the so-called War on Terror were innocent and the administration refused to set them free once those facts were established because of the political repercussions that would have ensued.

“By late August 2002, I found that of the initial 742 detainees that had arrived at Guantánamo, the majority of them had never seen a US soldier in the process of their initial detention and their captivity had not been subjected to any meaningful review,” Wilkerson’s declaration says. “Secretary Powell was also trying to bring pressure to bear regarding a number of specific detentions because children as young as 12 and 13 and elderly as old as 92 or 93 had been shipped to Guantánamo. By that time, I also understood that the deliberate choice to send detainees to Guantánamo was an attempt to place them outside the jurisdiction of the US legal system.”

He added that it became “more and more clear many of the men were innocent, or at a minimum their guilt was impossible to determine let alone prove in any court of law, civilian or military.”

For Cheney and Rumsfeld, and “others,” Wilkerson said, “the primary issue was to gain more intelligence as quickly as possible, both on Al Qaeda and its current and future plans and operations but increasingly also, in 2002-2003, on contacts between Al Qaeda and Saddam Hussein’s intelligence and secret police forces in Iraq.”

“Their view was that innocent people languishing in Guantánamo for years was justified by the broader war on terror and the capture of the small number of terrorists who were responsible for the September 11 attacks, or other acts of terrorism,” Wilkerson added. “Moreover, their detention was deemed acceptable if it led to a more complete and satisfactory intelligence picture with regard to Iraq, thus justifying the Administration’s plans for war with that country.”

Documents have been released over the past year that showed how in 2002 several high-value detainees were tortured and forced to make statements that linked Iraq to al-Qaeda and 9/11, which the Bush administration cited as intelligence to support its invasion of the country in March 2003. But the confessions were utterly false.

Wilkerson’s declaration was made in support of a lawsuit filed by Adel Hassan Hamad, a 52-year-old former Guantanamo detainee who is suing Defense Secretary Robert Gates, former Joint Chief of Staff Richard Myers, and a slew of other Bush administration officials for wrongfully imprisoning and torturing him.

Hamad was arrested in his apartment in Pakistan in July 2002, rendered to Bagram Air Base in Afghanistan for three months, where he says he was tortured, and then transferred to Guantanamo, where he was interrogated daily and subjected to even more torture by US military personnel.

At Bagram, according to Hamad’s lawsuit, “dogs were set upon [him] while watching United States military personnel laughed and mocked him.” Moreover, he was forced to stand for three days without “sleep or food” and eventually collapsed. He was then sent to a hospital where it took him two weeks to recover.

“Mr. Hamad was not given notice of the basis for his detention until more than two years after first being detained, when a Combatant Status Review Tribunal (CSRT) was convened in November 2004,” according to the lawsuit, filed in US District Court for the Western District of Washington at Seattle earlier this week. “Not until March 2005, nearly three full years after initially being detained, was Mr. Hamad officially labeled an ‘enemy Combatant’ by the flawed CSRT process,” according to the lawsuit.

“However, this determination drew a rare dissenting opinion that acknowledged his enemy combatant status determination was unwarranted and, as such, would have ‘unconscionable results,’” the lawsuit states. “The basis for Mr. Hamad’s enemy combatant determination was simply because of his association as an employee of two organizations for whom he had done humanitarian and charity work (one of which he had left years before), and nothing more.

“In fact, a second CSRT was ordered for Mr. Hamad in November of 2007, one month before he was ultimately released to the Sudan. This was unusual, and indicates that the government recognized that the initial CSRT determination of Mr. Hamad was not accurate.”

While Hamad was detained, his wife gave birth to a daughter who died some time later because the family did not have any money to pay for medical care. He has five other children.

Since he has been released, Hamad says he suffers from emotional, physical and psychological injuries and he is seeking undisclosed compensatory and punitive damages. Similar lawsuits against former Bush administration officials, however, have been dismissed in other jurisidictions.

Wilkerson said he “made a personal choice to come forward and discuss the abuses that occurred because knowledge that I served in an Administration that tortured and abused those it detained at the facilities at Guantánamo Bay and elsewhere and indefinitely detained the innocent for political reasons has marked a low point in my professional career and I wish to make the record clear on what occurred.”

“I am also extremely concerned that the Armed Forces of the United States, where I spent 31 years of my professional life, were deeply involved in these tragic mistakes. I am willing to testify in person regarding the content of this declaration, should that be necessary,” he added.

Gwynne Skinner, an assistant professor of clinical law at Willamette University College of Law in Salem, Oregon and a member of Hamad’s legal team, said WIlkerson’s declaration was originally intended to be filed in support of Hamad’s habeas corpus case, which was still pending in federal court in Washington, DC, along with more than 100 others, even though Hamad and the other former Guantanamo prisoners have already been released.

But US District Court Judge Thomas Hogan dismissed the cases, stating the former prisoners’ transfers rendered their habeas lawsuits moot. Attorneys for the detainees were upset because they had hoped the court would make a decision that would ultimately clear the peitioners’ names, lift travel restrictions, and the stigma that comes from being detained at Guantanamo.

Still, Skinner said Wilkerson’s declaration is signficant because it marks the first time a Bush administration official is willing to state, under oath, that Bush, Cheney, Rumsfeld and others knew many of the prisoners were innocent when they were sent to Guantanamo.

Wilkerson said detainees like Hamad were of little concern to Cheney.

The Office of Vice President Dick Cheney “had absolutely no concern that the vast majority of Guantanamo detainees were innocent, or that there was a lack of any useable evidence for the great majority of them,” Wilkerson said in the 9-page declaration. Cheney’s position, Wilkerson asserted, “could be summed up as ‘the end justifies the means.’”

Cheney, and his daughter Liz, have been vocal critics of President Obama’s efforts to shut down Guantanamo. Obama signed an executive order immediately after he was sworn into office and set a one-year deadline to close the facility. But he missed the date, due in part, to Congress’ refusal to earmark funds that would have allowed the administration to close the prison and move some detainees to a supermax prison in Illinois.

Cheney said last year that the only alternative the Bush administration had to setting up Guantanamo was to kill the prisoners detained there.

“If you don’t have a place where you can hold these people, the only other option is to kill them, and we don’t operate that way,” Cheney said.

It is not news that the majority of the initial 742 prisoners who were detained at Guantanamo were innocent of the crimes that they were accused of.

Indeed, in February of 2006, the National Journal reviewed the case files of 132 prisoners who filed habeas corpus petitions and the redacted CSRT transcripts of 314 others and concluded that “most of the ‘enemy combatants’ held at Guantanamo… are simply not the worst of the worst of the terrorist world” as Cheney, Rumsfeld and Bush had claimed.

“Many of them are not accused of hostilities against the United States or its allies,” according to an investigative report published by the National Journal. “Most, when captured, were innocent of any terrorist activity, were Taliban foot soldiers at worst, and were often far less than that. And some, perhaps many, are guilty only of being foreigners in Afghanistan or Pakistan at the wrong time. And much of the evidence — even the classified evidence — gathered by the Defense Department against these men is flimsy, second-, third-, fourth- or 12th-hand. It’s based largely on admissions by the detainees themselves or on coerced, or worse, interrogations of their fellow inmates, some of whom have been proved to be liars.”

The Journal noted that a common thread among many of the detainees is that a majority of them “were not caught by American soldiers on the battlefield. They came into American custody from third parties, mostly from Pakistan, some after targeted raids there, most after a dragnet for Arabs after 9/11.”

That’s a point Wilkerson made in his declaration and said it likely applied to Hamad’s case as well.

“With respect to the assertions by Mr. Hamad that he was wrongfully seized and detained, it became apparent to me as early as August 2002, and probably earlier to other State Department personnel who were focused on these issues, that many of the prisoners detained at Guantanamo had been taken into custody without regard to whether they were truly enemy combatants, or in fact whether many of them were enemies at all,” Wilkerson said in his declaration. “I soon realized from my conversations with military colleagues as well as foreign service officers in the field that many of the detainees were, in fact, victims of incompetent battlefield vetting.

“There was no meaningful way to determine whether they were terrorists, Taliban, or simply innocent civilians picked up on a very confused battlefield or in the territory of another state such as Pakistan. The vetting problem, in my opinion, was directly related to the initial decision not to send sufficient regular army troops at the outset of the war in Afghanistan, and instead, to rely on the forces of the Northern Alliance and the extremely few US Special Operations Forces (SOF) who did not have the necessary training or personnel to deal with battlefield detention questions or even the inclination to want to deal with the issue.

“A related problem with the initial detention was that predominantly US forces were not the ones who were taking the prisoners in the first place. Instead, we relied upon Afghans, such as General [Abdul Rashid] Dostums forces, and upon Pakistanis, to hand over prisoners whom they had apprehended, or who had been turned over to them for bounties, sometimes as much as $5,000 per head.

“Such practices meant that the likelihood was high that some of the Guantanamo detainees had been turned in to US forces in order to settle local scores, for tribal reasons, or just as a method of making money. I recall conversations with serving military officers at the time, who told me that many detainees were turned over for the wrong reasons, particularly for bounties and other incentives.”

In Hamad’s case, Wilkerson said that he has “no reason to believe that any more thorough process was used to determine whether his seizure or transfer to Guantanamo was justified.”

Wilkerson said that he discussed the Guantanamo detainees issue regularly with Powell and, based on those discussions, Wilkerson discovered that “President Bush was involved in all of the Guantanamo decision-making.”

“My own view is that it was easy for Vice President Cheney to run circles around President Bush bureaucratically because Cheney had the network within the government to do so,” Wilkerson said. “Moreover, by exploiting what Secretary Powell called the president’s ‘cowboy instincts,’ Vice President Cheney could more often than not gain the President’s acquiescence.”

Wilkerson said issues revolving around efforts to repatriate individuals wrongfully detained at Guantanamo came up during the morning briefings chaired by Powell that he and about 50 to 55 senior State Department officials attended beginning in August 2002 after the prison facility was opened.

“At the briefing, Secretary Powell would question Ambassador Pierre Prosper (Ambassador-at-Large for War Crimes), Cofer Black (Coordinator for Counter Terrorism), and Beth Jones (Assistant Secretary for Eurasia), or other senior personnel for information about specific progress in negotiating detainee releases,” Wilkerson said. “A number of these conversations arose because Secretary Powell received frequent phone calls from British Foreign Minister Jack Straw, who had consulted with Secretary Powell frequently about repatriating the British Guantánamo detainees …

“I also know that several other foreign ministers spoke with Secretary Powell urging him to repatriate their countries’ citizens. During these morning briefings, Secretary Powell would express frustration that more progress had not been made with detainee releases.”

During one particular meeting, Wilkerson said, Ambassador Prosper, the point person on negotiating the transfer of detainees to other countries, “would discuss the difficulty he encountered in dealing with the Department of Defense, and specifically Donald Rumsfeld, who just refused to let detainees go.”

Wilkerson said it was “politically impossible” to release detainees, even the ones Bush, Cheney, Rumsfeld and other senior officials knew were innocent.

“The concern expressed was that if they were released to another country, even an ally such as the United Kingdom, the leadership of the Defense Department would be left without any plausible explanation to the American people, whether the released detainee was subsequently found to be innocent by the receiving country, or whether the detainee was truly a terrorist and, upon release were it to then occur, would return to the war against the US,” he said. “Another concern was that the detention efforts at Guantánamo would be revealed as the incredibly confused operation that they were. Such results were not acceptable to the
Administration and would have been severely detrimental to the leadership at DOD.”

A spokesman for Rumsfeld said Wilkerson’s claims are untrue. Peggy Cifrino, Powell’s spokeswoman, said the former Secretary of State, “has not seen Colonel Wilkerson’s declaration and, therefore, cannot provide a comment.”

Still, what Wilkerson described may have very well been an issue in Hamad’s case, although as Jim White pointed out in a blog post, the Pentagon appears to have had a policy in place to “justify the long-term detention and interrogation of innocent civilians.”

According to Hamad’s lawsuit, the Pentagon had cleared him for release in November 2005, according to a redacted copy of his clearance decision his attorneys cited in their complaint.

But he was not freed from Guantanamo until December 2007. His attorneys said they were notified via email in March 2007 that Hamad was eligible to be sent back home to Sudan and it was during negotiations with the Sudanese government that they discovered he was eligible for release a full two years earlier.

About 183 detainees, many of whom have already been cleared for release, remain at Guantanamo. A majority of them have never been charged with a crime.

This work by Truthout is licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License.

t r u t h o u t ~ What Torture Is and Why It’s Illegal and Not “Poor Judgment”

AP — Sun, 14 Mar 2010 05:05:07 +0000

By: Andy Worthington, 13 March 2010:

It’s now over three weeks since veteran Justice Department (DOJ) lawyer David Margolis dashed the hopes of those seeking accountability for the Bush administration’s torturers, but this is a story of such profound importance that it must not be allowed to slip away.

Margolis decided that an internal report into the conduct of John Yoo and Jay S. Bybee, who wrote the notorious memos in August 2002, which attempted to redefine torture so that it could be used by the CIA, was mistaken in concluding that both men were guilty of “professional misconduct,” and should be referred to their bar associations for disciplinary action.

[...]

t r u t h o u t ~ National Archives, Watchdog Demand DOJ Probe Destruction of John Yoo’s Emails

AP — Fri, 26 Feb 2010 14:59:53 +0000

By: Jason Leopold, 26 February 2010:

The National Archives and a watchdog group sent letters to the Justice Department Thursday demanding an investigation into the destruction of John Yoo’s emails in the summer of 2002 when he and other government attorneys prepared and finalized legal memoranda for the CIA that redefined torture and authorized interrogators to brutalize “war on terror” detainees.

The Federal Records Act (FRA) requires the preservation of government documents. Records cannot be destroyed unless approved by the National Archives and Records Administration (NARA). According to the Justice Department’s website, emails fall under FRA if it pertains to government business.

The Federal Records Act (FRA) requires the preservation of government documents. Records cannot be destroyed unless approved by the National Archives and Records Administration (NARA). According to the DOJ’sweb site, emails fall under FRA if they pertain to government business.

Last week, the DOJ’s Office of Professional Responsibility (OPR) released a long-awaited report into the legal work former Office of Legal Counsel (OLC) attorneys Yoo and Jay Bybee did for the Bush administration on torture. Yoo currently works as a law professor at UC Berkeley and Bybee received a lifetime appointment as a federal judge on the Ninth Circuit Court of Appeals.

Legal opinions written by Yoo in August 2002 and signed by Bybee cleared the way for the Bush administration to subject detainees to the near drowning of waterboarding and other brutal treatment at the hands of CIA interrogators.

Waterboarding and some of the other interrogation techniques sanctioned by the Bush administration, such as slamming detainees against walls and depriving them of sleep, have long been considered acts of torture and have been treated and prosecuted as war crimes. However, Yoo – working closely with Bush administration officials – claimed that the techniques did not violate US criminal laws and international treaties forbidding torture.

Further, Yoo asserted that Bush’s presidential powers were virtually unlimited in wartime, even a conflict as vaguely defined as the war on terror.

But Yoo, the report concluded, was found to have “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”

Bybee was found to have “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.” OPR investigators deemed this to be a violation of “professional standards” and recommended that Yoo and Bybee be referred to state bar associations where they could have had their law licenses revoked. Career prosecutor David Margolis, however, downgraded the criticism to “poor judgment,” which means the DOJ now won’t make the referral.

The voluminous report noted, however, that while OPR investigtors were initially provided us with a relatively small number of emails, files, and draft documents,” it became “apparent, during the course of our review, that relevant documents were missing…”

OPR “requested and were given direct access to the email and computer records of REDACTED, Yoo, [Deputy Assistant Attorney General Patrick] Philbin, Bybee, and [fomer OLC head Jack] Goldsmith” during the course of the investigation into the creation of the torture memos. But OPR investigators said their probe was “hampered by the loss of Yoo’s and Philbin’s email records.”

OPR investigators said they were told that most of “Yoo’s email records” as well as “Philbin’s email records from July 2002 through August 5, 2002 – the time period in which the Bybee Memo was completed and the Classified Bybee Memo … was created” were deleted and “reportedly” not recoverable. The deleted emails also included other relevant documents the OPR needed to assist its investigation, according to the report.

It is unknown whether any steps were ever taken by DOJ to retrieve the emails before deeming them “unrecoverable.” Curiously, the report says that although OPR investigators “were initially advised that Goldsmith’s records had been deleted, we were later told that they had been recovered and we were given access to them.” The report does not provide further explanation.

In a letter sent Thursday to Jeanette Plante at the DOJ’s Office of Records and Management Policy, Paul Wester, director of the Archives’ modern record program, said, in accordance with federal rules governing the preservation of records, if the “DOJ determines that an unauthorized destruction has occurred, then DOJ needs to submit a report to” NARA.

Wester requested a response within 30 days. A DOJ spokesperson was unavailable for comment.

The destruction of Yoo’s and Philbin’s emails also caught the attention of watchdog group Citizens for Responsibility and Ethics in Washington (CREW), which had waged a years-long legal battle with the Bush administration over its destruction of tens of millions of emails and failed efforts to take steps to recover the documents and preserve others.

Melanie Sloan, CREW’s executive director, said Thursday, “given the disappearance of millions of Bush White House emails, we shouldn’t be surprised that crucial emails also disappeared from the Bush Justice Department.”

“The question now is what is the Attorney General going to do about it?” she said.

Sloan also sent a letter sent to Attorney General Eric Holder Thursday calling for a criminal investigation into the matter, a request that will likely go unfulfilled given the Justice Department’s and the Obama administration’s unwillingness to further delve into the previous administration’s alleged crimes.

She said such an inquiry is warranted, however, and compared the destruction of emails with the CIA’s destruction of torture tapes, which led to a criminal investigation and the appointment of a special prosecutor by former Attorney General Michael Mukasey. That probe is ongoing.

“The destruction of emails from high-ranking officials such as Messrs. Yoo and Philbin related to a subject of critical important to the Department of Justice and the nation as a whole clearly violates FRA,” Sloan’s letter to Holder said.

Indeed, the DOJ’s web site said emails are federal records if it:

Documents agreements reached in meetings, telephone conversations, or other E-mail exchanges on substantive matters relating to business processes or activities
Provides comments on or objections to the language on drafts of policy statements or action plans
Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities

The DOJ rules for preserving records also said ”the unlawful removal or destruction of federal records” can result in “criminal or civil penalties, fines and/or imprisonment.”

Sloan, in her letter to Holder, said, “the apparent failure of the Department of Justice to take any action in the face of knowledge that crucial records had been destroyed reflects a patent disregard of mandatory federal record keeping laws … Even if Mr. Yoo and Mr. Philbin did not violate their professional obligations by writing the torture memos, they – or others seeking to hide the truth – may have broken the law by deleting their emails.”

Last December, CREW and the historical group the National Security Archive announced that they entered into a settlement with the Obama administration over the loss of Bush administration emails.

Under the terms of the agreement, 22 million previously “missing” emails covering 94 days will be restored. That includes emails from the Office of the Vice President that were previously lost and unrecoverable and were subpoenaed by Patrick Fitzgerald, the special prosecutor appointed to probe the unauthorized leak of covert CIA operative Valerie Plame Wilson. This time frame also coincided with litigation surrounding the release of documents related to former Vice President Dick Cheney’s Energy Task Force meetings.

The emails will be sent to NARA. But whether they contain answers to lingering questions about the CIA leak or Cheney’s energy task force meetings will not be known for years, as the documents will not be immediately available for public view.

Congressional Hearing

The destruction of Yoo’s and Philbin’s email was one of the first issues raised Friday during a Senate Judiciary Committee hearing, where Acting Deputy Attorney General Gary Grindler is currently testifying about the OPR report.

“Have [the emails] disappeared? If they have, and if they have been destroyed, either the Yoo emails, the Philbin emails, will the [Justice Department] make ultimate determination whether the destruction was criminal, in violation of the criminal statutes, which seem fairly clear?” Judiciary Committee Chairman Patrick Leahy (D-Vermont) asked Grindler.

Grindler testified that he still needs to gather information from the “information technology experts, including all of the questions of what occurred, what the policies are, and what the archive system is. And at that point I’ll be in a position to evaluate whether anything additional needs to be done.”

Grindler said the report does not “suggest there was anything nefarious” about the fact that Yoo and Philbin’s emails were not turned over to OPR investigatiors and he noted that the report “does include a review of some of Mr. Yoo’s emails.”

But Leahy said the episode was cause for concern given that other Bush administration officials were found to have destroyed emails in violation of the Presidential Records Act during time frames that coincided with the lead up to the invasion of Iraq, the leak of Plame’s covert status and other scandals that engulfed the Bush White House.

“All I’m saying is that the report doesn’t have a complete lack of his e-mails,” Grindler said. But as soon as I learn the facts regarding this, I will provide appropriate information back to this committee…If they are retrievable, I will direct [technical staff] to retrieve them.”

After the hearing, CREW filed a Freedom of Information Act request with the Justice Department “seeking documents that would shed light on the destruction” of Yoo’s and Philbin’s emails.

Specifically, CREW wants “copies of record keeping guidance issued to staff of the Office of Legal Counsel (OLC) from January 2000 to the present concerning how electronic records, including email, are to be treated for purposes of federal record keeping laws.”

CREW “also seeks records indicating, reflecting, or commenting on any problems with the storage or retention of emails of OLC staff, including but not limited to” Yoo and Philbin, “from January 2000 to July 2009.”

In a blog post published last Sunday, Marcy Wheeler, who has spent the past week painstakingly dissecting the OPR report, wrote that emails OPR did obtain “provide a key piece of evidence that the White House was responsible for the way in which the Bybee One memo served as a blank check, as well as the pressure the White House put on the lawyers as they were drafting the memos.”

“The emails put the White House squarely in the drafting process” of the torture memos, Wheeler wrote on her blog emptywheel. “But that’s all, with most emails from John Yoo and Patrick Philbin still disappeared. It sort of makes you all the more curious about what was in the Yoo and Philbin emails that got deleted, huh?”

Read Leopold’s report @ truthout –> National Archives, Watchdog Demand DOJ Probe Destruction if John Yoo’s Emails ~ Digg it HERE

Funny or Die ~ Don't Sell Out, America! (video)

AP — Tue, 26 Jan 2010 19:51:03 +0000

Great satire from the FOD team and Jordan Peele in response to the U.S. Supreme Court decision on Citizens United v. FEC, declaring corporations to posses free speech rights, guaranteed under the 1st Amendment as if they were individuals.

Satire just makes the impact of it more digestible… Enjoy!

Funny or Die ~ Don’t Sell Out, America! – Watch more Videos at Vodpod.

Dawn Johnsen and the GOP Obstruction Game | People For the American Way Blog

AP — Mon, 04 Jan 2010 19:23:33 +0000

As you may have seen reported, in a perfect exclamation point to the obstruction we’ve seen all year, when the Senate adjourned last week, the Republicans objected to what is ordinarily a routine request to waive Senate rules and permit pending nominations to remain in the Senate confirmation pipeline. Without what’s called “unanimous consent,” under Senate rules, pending nominations must be returned to the President, who then has to re-nominate in the next session. In what has become a far too typical exercise by the “Just Say No” party, Republicans objected to three DOJ nominees who have been on the Senate’s calendar awaiting consideration for months: Dawn Johnsen, for the Office of Legal Counsel; Chris Schroeder for the Office of Legal Policy; and Mary Smith, for the Tax Division. They also objected to two pending federal District Court nominees (Edward Chen, for a seat on the Northern District of California and Louis B. Butler for a seat on the Western District of Wisconsin) and to Craig Becker for reappointment as a member of the National Labor Relations Board…

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Tell the Senate, GOP – Stop Stalling on Dawn Johnsen OLC Confirmation

AP — Thu, 29 Oct 2009 03:50:58 +0000

Cross posted at Care2.com‘s Political Causes Blog

Dawn Johnsen, Barack Obama’s nominee to head his administration’s Office of Legal Counsel (OLC), is potentially the most qualified candidate ever selected for the position. Nominated February 11 and approved by the Senate Judiciary Committee March 19, the Indiana University law professor has yet to be considered by the full Senate. What’s the hold up, you may ask? It appears that Johnsen is but another among many who has fallen victim to Republican obstructionism and the minority party’s ongoing misuse of the filibuster.

The Republican filibuster threat is only the most immediate cause for delay; forcing Senate Majority Leader, Harry Reid (D-NV) to scramble for the 60 votes necessary for cloture, followed by an up or down vote which would undoubtedly result in Johnsen’s confirmation. The underlying causes behind GOP opposition to Johnsen stem from two ideological issues; one of which has been blown out of proportion by right-wing activists. The other, more significant reason for fighting Obama’s OLC nominee is grounded in GOP fear that she, unlike her Bush administration OLC predecessors, may actually follow the law.

Right-wing activist opposition to Johnsen pertains to her past work for NARAL, a pro-choice advocacy organization. More specifically, their objection pertains to a 1989 brief in which Johnsen’s organization — along with 76 others — argued against states having the right to prohibit abortions at public health institutions.

Johnsen’s critics have zeroed in on two sentences within a footnote, which they employ claiming the OLC nominee equated motherhood with “involuntary servitude.” It’s an assertion which Politifact declared, March 24, to be “false.”

Of course, right-wing pundits further afield have taken Johnsen’s words and maliciously converted them, as AmericanConservative.org did September 19, placing the Obama nominee as number 41 among 650 unpalatable administration officials as, “Dawn ‘Compared Pregnancy with Slavery’ Johnsen.” No matter how it’s stated, however, Johnsen’s pro-choice stance is and has always been remarkably mainstream.

“The real reason” for the GOP stance in opposition to Dawn Johnsen was imparted by Scott Horton, March 26, at The Daily Beast:

…Johnsen is committed to overturning the Bush administration’s policies on torture and warrantless surveillance, which would clip the wings of the imperial presidency. Even more menacingly (from their perspective), she is committed to shining a light on some of the darkest skeletons of the Bush years.

If this is correct, then Horton’s assessment lends credence to that of Glenn Greenwald, whose aptly titled post, “Dawn Johnsen’s belief in the rule of law disqualifies her from Senate consideration,” was published May 13 at Salon.com. Within his post, Greenwald emphasized the fact that the Senate’s scrutiny of Johnsen was tragically absent in its confirmation of some previous, ultimately dubious, past nominees:

The Senate that is refusing to confirm Dawn Johnsen is the same Senate that confirmed Gen. Michael Hayden as CIA Director — with overwhelming Democratic support — even after it was revealed that he oversaw Bush’s illegal NSA spying program. It’s the same Senate that confirmed Alberto Gonzales as Attorney General — with substantial Democratic support — even once everyone knew that he had played a key role in Bush’s torture program. It’s the same Senate that — thanks to Democrats Dianne Feinstein and Chuck Schumer — confirmed Michael Mukasey as Attorney General even after he refused to say whether waterboarding was torture and endorsed some of the most extremist presidential powers ever asserted in the U.S.

In other words, their covering their collective butts, and their doing so at the expense of a nation in desperate need of objective legal guidance.

Fortunately, there are those willing to tell their senators to quit stalling. A good example of this was a September 22 letter from the Leadership Conference on Civil Rights, written behalf of several organizations, directing Senate Minority Leader Mitch McConnell (R-KY) to drop the stall tactics on Obama nominations.

The LCCR letter refers to Johnsen, specifically:

…Professor Johnsen has already served with distinction in the OLC, and is undoubtedly well-qualified for the position. Her nomination was approved by the Senate Judiciary Committee in March. The OLC plays a highly important role within the Administration, and the failure to confirm the President’s nominee to lead the office prevents the OLC from providing crucial legal advice on a wide range of issues currently confronting our nation.

I’ll include some additional links below, but if you agree with the sentiment of the above letter, contact your senators and tell them so. Additionally, consider signing THIS PETITION from NARAL-Pro-Choice America, calling on GOP senators to refrain from filibustering on the basis of any candidate’s pro-choice disposition.

Republicans Reject Obama Desire for Empathy in Future Supreme Court Appointment

AP — Sun, 19 Jul 2009 14:33:24 +0000

I wrote the below post, firm in my belief that Republicans couldn’t possibly maintain their opposition to Obama’s first Supreme Court nominee on the basis of the candidates ability to empathize. It was written before the nomination of Sonia Sotomayor, and, as was evidenced by her confirmation hearings, I was clearly wrong.

Republicans on the Senate Judiciary Committee, unable to attack Sotomayor on the basis of her remarkable record, focused almost entirely on the “Wise Latina” comment, and really exposed themselves as being uncomfortable with a non-Caucasian on the SCOTUS. During the hearings, it appeared that their strategy entailed repeated — and quite unsuccessful — attempts at soliciting an outburst from Sotomayor:

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Cross-posted @ Care2.com – From Aaron D. Pendell – 6 May 2009:

When politicians speak in code, parsing statements for phrases or words which carry negative connotations, they do our nation a profound disservice. Fortunately for Americans, we host some particularly talented satirists who have taken it upon themselves to, justifiably, mock this manipulative practice. Since Supreme Court Justice, David Souter, announced his intention to retire after the present term, providing Barack Obama the opportunity to appoint someone new, our satirists — namely, Jon Stewart and Stephen Colbert — have already enjoyed the chance to impart the inherent irony of the Republican opposition’s newest code word: empathy.

It’s not much of a surprise that Republicans would find something to complain about regarding the anticipated Supreme Court vacancy. Political conservatives have been critical of the President’s every action, so why should this be any different? But, empathy? Their opposition to a character trait of a Justice yet to be named, took shape over the weekend, and are discussed briefly at the beginning of this clip from Countdown with Keith Olbermann:

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As noted in the Countdown clip, empathy is code for judicial activism, which is code for pro-choice for Republicans. Jon Stewart’s and Stephen Colbert’s treatments of the Souter retirement, aside from being funnier than Olbermann’s, go beyond the bickering of conservative politicians and reveal the mainstream media’s penchant for stirring up controversy. David Greggory, in particular, appeared adamant about drawing a reaction from Sen. Arlen Specter, fresh off his defection from the GOP, focusing on the word “empathy” as if a coded meaning was implied. (Really, David, what’s happened to you?)

Be sure to tell me what you think in the comments section below. First, however, read Obama’s stated desires for his first Supreme Court appointment:

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

Does that sound at all unreasonable to you?

Also, consider what has happened when empathy is lacking in a Supreme Court ruling as it was in the case of Lilly Ledbetter. The Court ruled against Ledbetter, 5-4, despite overwhelming evidence of pay-based gender inequality based upon a strict, or formal, interpretation of the law. Author of the Court’s dissent, Justice Ruth Bader Ginsburg expressed disappointment in the majority’s lack of empathy in the case, “In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination …” Fortunately, this wrong was corrected last January when Barack Obama signed the Lilly Ledbetter Equal Pay Act into law. Justice achieved, but two years late.

Finally, consider this: What do conservatives want in an appointee, if not empathy? Perhaps they desire a narcissist, someone incapable of seeing or appreciating another point of view. If they are hoping Obama will appoint someone likely to overturn Roe v. Wade, I would suggest that they shouldn’t hold their breath. Besides, we already have at least two narcissists on the court, and that’s more than enough.

Personally, I feel that Republicans are reading way too much into the attributes Obama desires in whomever he decides to select. They’ve chosen “empathy” as a buzzword to stir up their dwindling base in an effort to sway the President’s choice. Both, conservatives and the mainstream media need to drop the code, as our invaluable satirists have hilariously suggested. Instead, they should consider what empathy really means:

empathy: Noun – the ability to sense and understand someone else’s feelings as if they were one’s own.

Should they do that, they’ll likely arrive at the conclusion that I have: Empathy is not only desirable in a Supreme Court Justice, but it should be a prerequisite for consideration.

Response to Those Who Say Don't Prosecute Torture Lawyers

AP — Fri, 08 May 2009 03:08:26 +0000

From CommonDreams.org, 7 May 2009 post by, Jermy Scahill:

…First, I would recommend that anyone who thinks it is a “stretch” to prosecute lawyers who provided legal justifications for torture to read the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was signed by President Ronald Reagan. Specifically, read these portions:

Article 21. 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.

The US is legally bound to this convention and I would argue that the attempted legalizing and authorizing of torture, such as was done by Bybee, Yoo and Bradbury is exactly what this treaty addresses and bans…

Bush: War Crimes Will Be Prosecuted…It Will Be No Defense To Say, I Was Just Following Orders

AP — Wed, 29 Apr 2009 01:17:54 +0000

Of course, he’s referring to Iraq in 2003, but it’s still wicked ironic.

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