Red, white, blue and black

Rendition continues, as Obama flouts the law with impunity.

Much has been written about the denial of due process for the five plaintiffs who claim to have been victims of the extraordinary-rendition program. But equally disturbing is the message that this verdict sends to individual American citizens, like the former Jeppesen employee, who felt a call to conscience that made him speak out, even at the risk to his own future employment, because he believed that secret kidnapping and torture were crimes in a country founded on the idea that all people, not just Americans, have inalienable rights, including protection from cruel and inhumane punishment. That his allegations could receive a public hearing in the press, but not a legitimate hearing in the American system of justice—even under an Administration headed by a former professor of constitutional law—is a daunting reflection of the clout wielded by the national-security bureaucracy in Washington, in the age of the Long War.

This isn't the beginning, but this isn't the end.

Big week at Gitmo

The first military commissions trial under Barack Obama is set to begin tomorrow at Guantanamo Bay. The case of Canadian Omar Khadr, the alleged murderer of an American solider by grenade in Afghanistan eight years ago, will showcase how truly different Obama's changes to these tribunals are compared to those during George W. Bush's presidency.

Spencer Ackerman with what's at issue:

Khadr, a teenager when initially detained, has been held for nearly half his life at a facility that the Obama administration has pledged to close. He will be tried in a legal venue that Obama rejected as a Senator and embraced, in reformed fashion, as president. What happens this week at Guantanamo will determine whether Obama’s pledge that the new, revised military commissions can deliver internationally-recognized justice is meaningful: the pre-trial hearing in Khadr’s case will provide the first in-depth examination of whether Khadr’s treatment in U.S. custody amounts to torture; will determine whether prosecutors can use evidence against him acquired under abusive, coercive circumstances that civilian courts would never allow; and whether additional statements made by Khadr in subsequent and less-coercive circumstances are fair game or inextricable from his overall abuse.

The 15-year-old was in Afghanistan with his father, a supposed al Qaeda financier, when he we detained for allegedly throwing a grenade that killed an American. In the process, Khadr was shot twice. Evidence suggests that he was buried under rubble at the time of the American soldier's death.

Many have questioned why the Obama administration would pick this case, one of a child soldier who has been tortured, to be the first commissions exercise under Obama.

Carol Rosenberg of The Miami Herald (a Gitmo reporter extraordinaire) quotes former war court defense lawyer David Frakt today:

"They're starting off their very first prosecution of the Obama administration with a child soldier, a Westerner no less, and going into excruciating detail for two weeks of torture and mistreatment that he suffered,'' Frakt said. ``It's kind of the dream scenario for opponents of military commissions.''

Khadr claims he was at times beaten, left shackled so long in interrogation he urinated on himself and was subjected to solitary confinement and sleep deprivation -- claims that other detainees have also made through the years.

For a legal rundown of what's wrong in this case, read Daphne Eviatar of Human Rights First:

Equally fundamental is that the military commissions were created to try war crimes. But even if Khadr were guilty of the acts charged - murder, attempted murder, conspiracy, and aiding the enemy - those aren't really war crimes. At least, they weren't war crimes until Congress declared them to be in the Military Commissions Act of 2006 -- four years after Khadr allegedly committed them. So to try Khadr for war crimes now is a violation of the Ex Post Facto clause of the U.S. Constitution, Khadr's lawyers point out. (Khadr could, of course, be tried in a civilian court for the crimes of murder and conspiracy.)

Khadr's case, then, underscores many of the fundamental problems with the military commission system - that it has no rules, little experience, almost no precedent and barely any law to guide it.

So why did the Obama administration decide to make the case of Omar Khadr its first trial in a military commission?

If the administration is hoping to showcase the strength of its military and the president's tough stance on terrorism, this probably wasn't the best way to do it.

How this case is handled will have deep ramifications going forward with the many detainee trials in queue now. And it will interesting to see how America and the media react to another remembrance of the scores of evidence of torture inflicted upon this teenager, guilty or not, and other detainees.

Drones and assassinations: Our legacy in the war on terror

Richard Wright makes some important points on Predator drone strikes in Pakistan -- void of the Pakistani government's full support or authorization -- and the order to assassinate Anwar al-Awlaki, an American citizen now in Yemen implicated in inciting the Fort Hood shooter and the Underwear bomber.

If Harold Koh — the state department lawyer assigned the job of justifying Obama’s strategy — carries the day, America will be telling the world that it’s O.K. to lob missiles into countries that haven’t attacked you, as long as you think a terrorist may live there. Do we really want to send that message to, for example, Russia and China, both of which have terrorism problems? Or India or Pakistan?

And are we sure we want to say that, actually, due process of law isn’t really guaranteed all American citizens so long as there’s a war on terrorism — which, remember, is a war that may continue for eternity?

(For more background, Koh gave a speech recently defending many of the national security policies the Obama administration adopted from the Bushies. Adam Serwer gave a detailed breakdown of Koh's points on drones and assassinations.)

Sandy Levinson asks, What if it were Bush?

It is widely known that Obama has ordered more drone strikes in his year in office than George W. Bush did in his entire administration. One can only wonder what the response of the left would be if it were Bush (and, say, John Yoo) engaging in (and defending) the actions that seem central to the Obama Administration's policy in Pakistan (and Yemen and....). The most ominous part of Wright's column is an argument that the policy is very likely to be counterproductive, for a number of reasons he goes into. So there may be a "negative trifecta," i.e., a policy that raises serious moral and legal questions and is counterproductive to boot.

But more to the point, Is this what we want America to be? How can we realistically disallow other powerful countries from conducting similar activities -- especially in the case of drones -- without completely losing all credibility (if we haven't lost enough already)?

And I'm not really sure why I'm even asking because I know why: Where are all the Bush haters that complained about these very same procedures? There are MORE drone strikes mowing down civilians and vague, unverified "suspects" now and Bush never targeted an American citizen for DEATH. Where are the liberals, progressives, civil libertarians and others on the Left now?

Military commissions: Making it up as we go

Daphne Eviatar delves into the charade and sham that is the military commissions system at Gitmo as the tribunals begin again with Noor Muhammed, a detainee that has wallowed in legal limbo at Guantanamo since 2002.

The military bureaucratic conundrum seemed to leave everyone in the courtroom – and in the observers’ gallery, which was walled off by bullet-and-sound-proof glass -- scratching their heads. (Observers at this courtroom, which was built specially to try the 9/11 suspects, only get to hear the proceedings via an audio feed that transmits the sound after a several-minute time-delay.) Like many questions that arise in these military commission hearings, the answer to this one could not be found anywhere in the rules or the military commission precedent.

That’s partly because the current military commissions, created by the Military Commissions Act of 2009 – have no rules. The military hasn’t issued them yet. The now-outdated rules that governed the previous commission, created by a 2006 law, don’t address this situation either. And there is almost no military commission precedent to speak of. After all, in the eight years since they were created, the military commissions have tried only three cases. Of those, only two detainees even put up a defense. Both have since been released from prison.

Throughout yesterday’s hearing, if there was one thing that the prosecution, defense and judge could agree on, it was that there simply is no law to guide many of the situations that come up in the military commission cases of the Guantánamo detainees.

That there is any possibility that these commissions will continue, much less whether Khalid Sheikh Mohammed will be tried in one of these awful excuses for American justice, is a sad commentary on our post-9/11 climate of fear, paranoia and lack of confidence in our own justice system.

Military commissions are back by unpopular demand

You wanted indecision, you got it! The Obama administration is going forward with military commissions (and its stellar record of convictions ... that was sarcasm) today, reports the Miami Herald.

Still operating under Bush-era policies that President Barack Obama last year called "a mess," the Pentagon will resume military commission hearings for accused terrorists Wednesday in a top-secret compound originally designed for the trial of alleged 9/11 mastermind Khalid Sheik Mohammed.

War court critics denounced the decision to go ahead with hearings this week, saying that without new rules the Obama administration has yet to complete the commissions are operating with uncertain procedures.

"It's really like a lame-duck commission," bristled Mike Berrigan, deputy chief defense counsel.

First up on the war court's agenda is a pretrial hearing in the case of Noor Uthman Mohammed, a Sudanese man who was captured in Pakistan in 2002 and brought here soon after for interrogation as a suspected al-Qaida operative.

U.S. Attorney General Eric Holder approved Noor's military trial in November on charges of conspiracy and providing material support for terrorism for allegedly helping to run the Khalden terror training camp in Afghanistan.

At that same time, Holder approved civilian trials for the alleged plotters of the Sept. 11, 2001, terrorist attacks - and this week's hearings also are a reminder that the Justice Department remains undecided on how to proceed with the case of Khalid Sheik Mohammed and his four accused co-conspirators.

After New York officials objected to holding the 9/11 trial in lower Manhattan, the White House announced that it would reconsider the decision. It remains unclear where and in what forum Mohammed and the other alleged plotters will face charges.

That indecision will be on display as the court convenes Noor's case in the maximum security, $12 million Expeditionary Legal Compound that the Bush administration built for the accused 9/11 conspirators.

USA! USA! USA!

Update: Though the defendant has spent 8 years in U.S. custody, the judge said today it will take up to another YEAR to sift through his evidence. Sorry kid.

Update II: Daphne Eviatar highlights the case of the detainee (Noor Muhammad) as a prime example of a colossal government fuckup.

The King has decreed: Assassinate the "guilty" peasant

And it is written: The king, our wise and fearless leader, has decreed ye a terrorist upon secret evidence only the king and his cohorts may view. The king, he of compassion and the Nobel Peace Prize, orders the extra-judicial execution of ye, an insubordinate subject, the mongrel the state knows as Anwar al-Awlaki.

NYT:

The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.

Now read the brazen comments in the Washington Post made by an (anonymous) official on the assurance that assassinating an American under the guise of his alleged involvement in "terrorism" is justifiable and legal.

"He's recently become an operational figure for al-Qaeda in the Arabian Peninsula," said a second U.S. official. "He's working actively to kill Americans, so it's both lawful and sensible to try to stop him." The official stressed that there are "careful procedures our government follows in these kinds of cases, but U.S. citizenship hardly gives you blanket protection overseas to plot the murder of your fellow citizens."

So how about the two incidents the U.S. points to as proof of Awlaki's involvement in attempting to kill his fellow Americans? They would be the Fort Hood shooting (Nidal Hasan) and the underwear bomber (Umar Farouk Abdulmutallab). WaPo:

Aulaqi corresponded by e-mail with Maj. Nidal M. Hasan, the Army psychiatrist accused of killing 12 soldiers and one civilian at Fort Hood, Tex., last year. Aulaqi is not believed to have helped plan the attack, although he praised Hasan in an online posting for carrying it out.

Concern grew about the cleric's role after he was linked to the Nigerian accused of attempting to bomb a U.S. airliner on Christmas Day by detonating an explosive device he had smuggled in his underwear. Aulaqi acknowledged teaching and corresponding with the Nigerian but denied ordering the attack.

That doesn't sound like solid proof of anything beyond incitement. But apparently our constitutional law professor-in-chief knows what we shouldn't mess our pretty little heads with.

Even the Bush administration's torture troll John Yoo didn't agree with these executive powers.

Spencer Ackerman contends:

There’s no doubt al-Awlaki is exploiting his citizenship, but there’s also a reason why the guarantees of citizenship can even be exploited, and to take those away in this case, based on secret evidence and asserted claims leads us down a very dark path.

Dark path indeed. Obama has continually emphasized a break from Bush-era excessive executive wartime powers. He promised to close Gitmo, he ended torture techniques and ordered closing of black site prisons. Admittedly, it was a low bar. But those differences the Obama administration claim to embrace are much less substantial when a record of Obama and Bush policy is examined.

Eli Lake:

But these differences in style mask a sameness in substance that should worry civil libertarians. When it comes to the legal framework for confronting terrorism, President Obama is acting in no meaningful sense any different than President Bush after 2006, when the Supreme Court overturned the view that the president’s war time powers were effectively unlimited. As the Obama administration itself is quick to point out, the Bush administration also tried terrorists apprehended on U.S. soil in criminal courts, most notably “20th hijacker” Zacarias Moussaoui and shoe bomber Richard Reid. More important, President Obama has embraced and at times defended the same expansive view of a global war against Al Qaeda as President Bush.

The U.S. still reserves the right to hold suspected terrorists indefinitely without charge, try them via military tribunal, keep them imprisoned even if they are acquitted, and kill them in foreign countries with which America is not formally at war (including Yemen, Somalia, and Pakistan). When Obama closed the secret CIA prisons known as “black sites,” he specifically allowed for temporary detention facilities where a suspect could be taken before being sent to a foreign or domestic prison, a practice known as “rendition.” And even where the Obama White House has made a show of how it has broken with the Bush administration, such as outlawing enhanced interrogation techniques, it has done so through executive order, which can be reversed at any time by the sitting president.

Our unending war on terror continues, and our reckless leaders have the power to do whatever they want, including the order to kill an American without explaining or proving why. That's our America in 2010.

Case of CIA tapes looks to be headed for inconclusive end

The case of destroyed CIA tapes of alleged gross abuse of detainees held by the U.S. is nearing its close, according to The Washington Post.

Assistant U.S. Attorney John H. Durham, who is leading the investigation, recently bestowed immunity from prosecution on a CIA lawyer who reviewed the tapes years before they were destroyed to determine whether they diverged from written records about the interrogations, two sources familiar with the case said. That could signal that the case is reaching its final stages. Durham has been spotted at Justice Department headquarters in Washington over the past few weeks, in another signal that his work is intensifying.

The agency lawyer, John McPherson, could appear before a grand jury later this month or in April, according to the sources, who spoke on the condition of anonymity because the investigation continues. CIA lawyers have been essential to understanding the episode because they offered advice to agency personnel about handling the tapes, and whether they should have been included when agency records were turned over in other court cases. McPherson is not thought to be under criminal jeopardy but had previously hesitated to testify, the sources said.

Emptywheel's bmaz doesn't see much coming from this entire exercise:

If the reporting is accurate, there are several things of interest here. First off, there is little, if any, accountability in the offing. False statements against a secondary official giving closed door testimony is not going to take us rule of law adherents where we want to go. And if this official is indeed covert, the odds of charges really being pursued are not very good; not to mention that any prosecution, even if it were pursued, would be fastidiously kept narrow and constrained by CIPA procedures. I find very little hope for anything useful here.

One curious passage in the story relates to the defense agency officials are claiming for scrubbing the evidence: security (of course....).

Durham and a special team have gathered and pored over sensitive documents to determine whether destruction of the tapes constituted a crime. Agency officials say the motive was innocent: After the emergence of widely reviled images of detainee abuse at the Abu Ghraib prison in Iraq, CIA veterans feared that the disclosure could compromise their security. Investigators, however, have been probing whether the tapes were destroyed in anticipation of a congressional or federal investigation, which could violate obstruction of justice laws.

So if (or when) nothing is done to hold those accountable for these tapes' disappearance, is security going to be the reason? And what can't be done in the name of security now? For instance, this is the age of a litany of Bush/Obama state secrets claims, the effort to conceal detainee photos (now a Democratic team effort led by Joe Lieberman, wiretapping, torture, the list goes on. What's the line here?

The U.S. may not have a threshold for responsibility, but President Obama believes Indonesia does. Obama's accountability-free mantra is "look forward, not backward" when confronted by America's post-9/11 detainee/war policies, but not when it comes to Indonesia's human rights abuses. Per Glenn Greenwald:

In 2008, Indonesia empowered a national commission to investigate human rights abuses committed by its own government under the U.S.-backed Suharto regime "in an attempt to finally bring the perpetrators to justice," and Obama was asked in this interview: "Is your administration satisfied with the resolution of the past human rights abuses in Indonesia?" He replied:

We have to acknowledge that those past human rights abuses existed. We can't go forward without looking backwards . . . .

(Emphasis mine)

That's convenient. What is good for me is not for thee.

George W. Bush's required reading

For Women Veterans, Battles Go On at Home

Post traumatic stress disorder or PTSD was the reason Peacock was sent home from Iraq .She had spent her time in Baghdad driving in unarmored trucks and fearing roadside bombs.

"You don't ever know is today going to be the day," Peacock said. "A lot of us wrote letters home like, 'If I die give this to my mom.'"

Her downward spiral accelerated when she returned from Iraq She became addicted to prescription drugs. Her husband left her, making her homeless. She found it hard to readjust to life back in St Louis.

"War does something to you where it just twists everything," Peacock said. "I don't look the same, I don't act the same, I don't have the same mannerisms."

"Almost half the women who we see today that are homeless are under 35," said Peter Dougherty, director of the homeless program at the Department of Veterans Affairs.

The VA says on any given night there are an estimated 6,500 homeless female vets. That's double the number a decade ago.

Angela Peacock now rents a house and has new support: GI Joe - a companion dog provided by the VA to help her cope with the PTSD when she's in public places.

"I have my days that are hard to get out of bed, and if fireworks or something goes off I'm just like done for the day," Peacock said. "But it's much better than it was. Much better."

Freedom is on the march.

Yoo and Bybee: Innocent until proven sane

Associate Deputy Attorney General David Margolis concludes that torture memo conspirators John Yoo and Jay Bybee may have been grossly incompetent and viciously off base, but what they authorized was not *technically* illegal.

Jack Balkin (read the whole spot-on indictment of this decision):

Margolis concludes that Yoo and Bybee exercised poor judgment and made bad legal arguments. But lawyers often make arguments that are bad or even laughably bad, and this by itself does not violate the very low standard set by rules of professional responsibility. These rules are set up by jurisdictions to weed out the worst offenders, leaving the rest of the legal profession to make entirely stupid, disingenuous and asinine arguments that normal people with functioning moral consciences would not make. That is to say, rules of professional misconduct are aimed at weeding out sociopaths and people driven to theft and egregious incompetence by serious drug and alcohol abuse problems; they do not guarantee that lawyers will do right by their clients, or, in this case, by the Constitution and laws of the United States of America. In effect, by setting the standard of conduct so low, rules of professional conduct effectively work to protect all those lawyers out there whose moral standing is just a hair's breadth above your average mass murderer. This is how the American legal profession simultaneously polices and takes care of its own.

Scathing.

And Dick Cheney will go on bragging about being a war criminal.

Obama administration still insists they care about civil liberties

Stay with me.

The Washington Times' Eli Lake today:

President Obama is coming under pressure from Democrats and civil liberties groups for failing to fill positions on an oversight panel formed in 2004 to make sure the government does not spy improperly on U.S. citizens.

The Privacy and Civil Liberties Oversight Board, or PCLOB, was recommended initially by the bipartisan September 11 commission as an institutional voice for privacy inside the intelligence community. Its charter was to recommend ways to mitigate the effects of far-reaching surveillance technology that the federal government uses to track terrorists.

The panel was established in 2004 under President Bush as part of the executive office of the president. Its independence was unclear for several years. Congress responded by increasing the board's budget, expanding its powers and moving it outside the presidential executive office in 2007.

Since taking office, Mr. Obama has allowed the board to languish. He has not even spent the panel's allocation from the fiscal 2010 budget.

SOME lawmakers are pushing the administration to act. Then Lake gets a comment from the Obama team.

Ben Rhodes, deputy national security adviser for strategic communications, defended the administration's record in general but acknowledged the Democrats' criticisms and said the White House would soon act on them.

This president has made clear his commitment to civil liberties through the actions of his administration, and appreciates the congressional interest in this important issue. The White House has allocated funding for the PCLOB, and looks forward to appointing its leadership soon, he said.

(Emphasis mine)

That's beyond rich. Obama tried to peddle that line of thought in his State of the Union too.

Lake begins to chronicle proof that Rhodes is brimming with deception:

For example, the Obama administration pressed a British court last year to keep secret details of how terrorism suspect Binyam Mohammed was treated while in U.S. and Pakistani custody. The administration has also embraced in some cases the concept of indefinite detention for some terrorism suspects apprehended during the Bush presidency, and it has increased the practice of targeted killings in Pakistan and Yemen through unmanned aerial vehicles.

On the issue of surveillance, Mr. Obama during the presidential campaign voted for reauthorization of the Foreign Intelligence Surveillance Act, or FISA, a bill criticized by the American Civil Liberties Union for providing only minimal court oversight to expansive electronic intelligence-collection programs.

It goes on.

Outside of authorizing torture (and we have no proof torture isn't still going on since no one's allowed to observe overseas prisons), Obama is a direct heir of the Bush/Cheney legacy. The constitutional law professor and his own attorney general, in refusing to hold those guilty of what we'd call war crimes if another country did it, are beyond being accessories to the ugliness and are now the prime drivers of this illegal, shameful and immoral activity.

Get a load of these guys

Is it funny to anyone else that Bush came back to Washington after months of silence to say this?

"I know a lot of people want to send blankets and water," Bush said while making his first visit to the White House since his presidency ended. "Just send your cash."

Thanks for coming by George. Can't you tell a lot about these three by their looks in this photo? Their expressions seem to match their personas. Clinton is concerned and compassionate (whether honest or politicking), Obama as the ultra-serious, deliberate cautionary and Bush the ... dim bulb. Or are those the stereotypes of them that have been drilled in my head?

(AP Photo)

The torture Right's tunnel vision on interrogation tactics

In light of word that Riduan Isamuddin aka Hambali -- the man accused of plotting the 2002 bombing in Bali that killed 200+ -- will be tried in Washington, D.C., former Bush speechwriter and torture enthusiast Marc Thiessen spews some predictable bile.

Thiessen's post from National Review's The Corner:

Hambali is being called the mastermind of the Bali bombings. That may be an accurate description, but it understates his importance. He was in fact the leader of a Southeast Asian terrorist network that Khalid Sheikh Mohammed turned to after 9/11 to carry out the “Second Wave” — a plot to hijack a plane and fly it into the Library Tower in Los Angeles. (KSM knew we would be on the lookout for Arab men, so he asked Hambali to recruit a cell of Southeast Asian operatives to infiltrate the United States. I tell the full story of the takedown of the Hambali network in Courting Disaster.)

Hambali and the key members of his terror network were captured only because of information gained from KSM after he underwent enhanced interrogation techniques. (Indeed, it seems that virtually everyone the Obama administration wants to put on trial in civilian court was captured as a result of the CIA interrogation program that Obama shut down.) After 9/11, we were unaware of the Hambali network or its plans — until CIA detainees were captured and questioned. Those detainees told us what we needed to know to take the network down.

The torture Right refuses to acknowledge the actual chronology of KSM's capture and the disintegration of the Library Tower plot. Adam Serwer at TAPPED again explains:

... the most prominent example in the supposed "wave of suicide hijackings" supposedly disrupted by waterboarding KSM, the attack on the Library Tower in L.A., had been canceled before KSM was captured. Bush had bragged about disrupting the L.A. Towers plot in 2002, but KSM hadn't been captured in 2003.

Under interrogation by the CIA at a black site, Hambali revealed plans for a "wave" of attacks on U.S. subways and businesses and a planned attack using anthrax -- except as Jane Mayer reported in The Dark Side, those plots had already been disrupted by December 2001, and the scientist developing the anthrax was already in U.S. custody.

As for whether the information KSM gave led to Hambali's capture, some of it may have. It's politically convenient for the the GOP to draw a direct line between KSM being waterboarded and Hambali being captured, but that presupposes that the U.S. had no assistance from overseas partners. In the imaginary world of 24, all you have to do is torture a suspect to get information. But in reality, piecing together intelligence information is a complicated process, and it's highly unlikely that KSM provided the only information that led to Hambali's capture. The Bush administration's prior misleading characterizations of how useful information gleaned through torture was don't exactly inspire confidence.

In a separate post, Serwer documents the only part of America that's losing its head over the attempted attack by Umar Farouk Abdulmutallab is the GOP, while Obama's response seems to have helped his approval ratings, according to a Pew poll.

Torture has become a crucial plank to one political party's platform, as U.S. Senate candidate (and the current darling of the Right) Scott Brown underscored with his own endorsement of "enhanced interrogation techniques." This is the legacy of the Bush-Cheney years.

The downward-spiral effect of America's terror policies

In the aftermath of President Obama's statement today on the "potentially disastrous" failure to stop Umar Farouk Abdulmutallab from boarding an airliner in an apparent bombing plot, Spencer Ackerman points out a distinction that should be highlighted when discussing what has been called a breakdown in connecting the dots by the intelligence community. Obama said the intel was available, but he then repeated the line about professionals within the intelligence apparatus missing the connections.

Ackerman:

But it’s not true that there was sufficient information “that would have placed the suspect on the no-fly list.” As a U.S. intelligence official told me last week, there is a standard for moving someone from a person-of-interest list run by the National Counterterrorism Center to the FBI-maintained Terrorist Screening Database. That standard is “specific derogatory information leading to reasonable suspicion.” And that FBI-maintained database still has another procedural and evidentiary step to go through before placing someone on the no-fly list.

In essence, if Obama wants to change the standards of how one lands on a no-fly list, he should do it. But to blame officials for not "connecting dots" isn't really accurate. As the official told Ackerman, there are certain standards to follow; simple suspicion has to take that extra step. Ackerman once more:

Obama can say that common sense dictates that Abdulmutallab ought to have been on the no-fly list. But that’s reasoning backward from the conclusion. It’s appropriate after a failure occurs. But it’s not appropriate as an explanation for how that failure occurred. The standard for placing someone on the no-fly list is simply not met by the aggregated intelligence that Obama cited (and he didn’t unveil any new information).

For the president to hawk this as a connecting-the-dots failure seems to be either disingenuous political theatre to put on a show for our feeble minds, or just a misunderstanding of the issue.

Speaking of political theatrics, the administration announced that several Yemenis kept at Guantanamo Bay for years, then found innocent of any crimes, must stay incarcerated due to the "deteriorating security situation" in Yemen, all so Americans can know that their Daddy president is protecting them from the evil terrorists.

Reuters:

President Barack Obama bowed to political pressure from Democratic and Republican lawmakers not to send any more prisoners to Yemen as a result of revelations that a would-be bomber on a Detroit-bound plane had received al Qaeda training in Yemen.

"It was always our intent to transfer detainees to other countries only under conditions that provide assurances that our security is being protected," Obama said.

"Given the unsettled situation, I've spoken to the attorney general (Eric Holder) and we've agreed that we will not be transferring additional detainees back to Yemen at this time," Obama said.

As Andy Worthington has pointed out in his dogged coverage of Guantanamo Bay, this rationale is bad policy at best (in that it only threatens to radicalize more than it protects anyone's safety) and against the rule of law at worst.

“only at Guantánamo can fear trump justice to such an alarming degree” that, “if [the officials’] rationale for not releasing any of the Yemenis from Guantánamo was extended to the US prison system, it would mean that no prisoner would ever be released at the end of their sentence, because prison ‘might have radicalized’ them, and also, of course, that it would lead to no prisoner ever being released from Guantánamo.”

Our monarchical structure says we can indefinitely detain anyone we deem a threat. From Bush to Obama, this is set American policy. Can anyone claim with a straight face that any president in the near future will reverse these policies based on A) today's support torture by (at least) one political party and an alarming number of Americans who have been instilled with fear at every turn, B) our spineless, constantly-posturing political class and C) an irresponsible, for-profit mainstream media that will exploit TERROR! and FEAR! and DANGER! to cull ratings.

So at this point, we're left with what could be called Terrorball, the unwinnable game of fear and paranoia brought to you by Washington's ruling and chattering classes.

Our national government and almost all of the establishment media have decided to play a similar game, which could be called Terrorball. The first two rules of Terrorball are:

(1) The game lasts until there are no longer any terrorists, and;
(2) If terrorists manage to ever kill or injure or seriously frighten any Americans, they win.

Read the entire post at Lawyers, Guns and Money. He shares statistics detailing the number of deaths in America unrelated to terrorism, but caused but things we have accepted as normal, as in starvation, homicide and lack of health care.

Ladies and gentlemen, your America in 2010.

Hubris ... overweening pride

Torture-memo author John Yoo will never go away. He'll continue to pop up to defend torture, a de facto defense of his own egregious behavior as a stooge Office of Legal Counsel lawyer for the Justice Department who was more than giddy to rubber stamp whatever his dear leader Bush wanted: the torture of other human beings in the name of "national security."

Yet it's still a little disorienting to read quips like the ones he offered The New York Times Magazine.

Do you regret writing the so-called torture memos, which claimed that President Bush was legally entitled to ignore laws prohibiting torture?
No, I had to write them. It was my job. As a lawyer, I had a client. The client needed a legal question answered.

When you say you had “a client,” do you mean President Bush?
Yes, I mean the president, but also the U.S. government as a whole.

But isn’t a lawyer in the Department of Justice there to serve the people of this country?
Yes, I think you are quite right, when the government is executing the laws, but if there’s a conflict between the president and the Congress, then you have to pick one or the other.

Were you close to George Bush?
No, I’ve never met him. I don’t know Cheney either. I have not gone hunting with him, which is probably a good thing for me.

"It was my job. As a lawyer, I had a client. The client needed a legal question answered." Unbelievable. Does he hear what's coming out of mouth? I get it, defend yourself at all costs John. But understand that you'll have keep up this pathetic, soul-sucking charade the rest of your miserable life. Maybe it's not a charade, maybe he's convinced himself through extreme delusion that what he did was just. But then why does he continue to pop up in such inane "interviews" like this that only make him look more like the tool he is? Why does he keep writing op-eds?

He knows what he's validated. And he'll have to keep it up, at least for the next 20 years or so.

Get me off this crazy ride Jane

Most Americans agree: The Bush decade fucking sucked. That's about as eloquent as I can get on that one.

Are we forever desensitized by torture in America?

I like to highlight the Post's consistent online successes when I can. Sometimes it seems there aren't a lot, but that's another topic. One of the lasting gems of the site is online discussions. They get some great guests, politics and otherwise. Today, they invited (a real) conservative writer Reihan Salam and Slate senior editor and legal blogger Dahlia Lithwick to talk about some of the "worst ideas" of the 2000s, an Sunday Outlook feature where Salam wrote about compassionate conservatism and Lithwick about the torture memos. They answered questions about those topics and suggestions from readers.

I was lucky enough to get a response on my torture memo question from the always insightful Lithwick. (I'm Des Moines. Sometimes I'm Baltimore. And I figured out why those two: one, I'm keeping touch with an outsider, Midwestern "perspective" with Des Moines and with Baltimore, I'm a east coaster, yet somewhat local to DC. Weird.)

Des Moines, Iowa: Thank you both for being with us and writing excellent, concise takes on these two "worst ideas" of the decade.

Re: torture memos, the tragic legacy of the memos has now become the apparent refusal of the Obama adm. to thoroughly investigate and prosecute those responsible. It's possibly the prime example of modern Washington's corroded morals. In refusing to rise above the "political ramifications" of taking such action, it seems Obama has simply left the door wide open for more abuses, as you alluded to Ms. Lithwick. Is it almost inevitable that we'll walk down this road again, but with even less resistance due to the institutionalization of torture?

washingtonpost.com: The torture memos (Post, Dec. 20)

Dahlia Lithwick: Hi there and thanks to all of you who read the feature and to those of you who are writing in. Des Moines, this is the question that worries me more than almost any other. Without accountability for the acts of torture and without a probing investigation into how this could have happened, it does seem almost inevitable that we will, sometime down the road, feel justified in doing it again. Certainly the Obama Administration has renounced torture and the memos I referenced were withdrawn. But the issue isn't just these memos but a legal process that was warped. My other nagging fear is that American public opinion has really shifted on torture. Remember how horrified we were by the images from Abu Ghraib? I am not sure we would be as horrified next time. Polling suggests we have come to think of abuse as justified in some instances, despite the fact that the legal prohibition is absolute.

Your Bush-Obama America, December 21, 2009.

Don't surrender

Here are two good reads for the day.

Cary Tennis of Salon on identity and self-expression.

The "common-sense" assumption is that "underneath" we are all just regular joes. The true self may be extraordinary and fine. It is axiomatic that if each of us is unique, our true self will be something the world has never seen before. If we are completely ourselves, we may not be recognized. We hide the true self, fearing rejection by the crowd. So we "dumb down," you might say. We find a million ways to conceal.

One of the tricks I have learned is that by seeming to reveal all we can conceal much. The more we reveal, the more we can hide. What we really wish to conceal lies at the bottom of the heap of revelations. Often what we truly wish to hide is our own weakness, fear and vulnerability. That is how I felt at that meeting -- weak, fearful, vulnerable. Yet I found myself thinking my way through it and not acting. "What, indeed, is the exact effect of speaking to others about our condition?" Blah, blah, blah.

And Glenn W. Smith at Firedoglake talks us off the ledge and injects some hope of his own into the ruins of Obama's multi-layered mess.

While we struggle to overcome that fundamental error, we run the risk of demoralizing Americans. In the long run, we need one another more than we need Obama. I might even say that inspiration should be our first and most important strategy. Our demoralization is certainly a key strategy of our opponents, as it has been with all authoritarians. A great essay on the renewal of hope in the face demoralizing tyranny is Vaclav Havel’s, “The Power of the Powerless.”

I have many acquaintances who can no longer even read news about the health care reform because they find it depressing. This demands recognition and action. These anxious folk are not weak or apathetic. Their hopes need renewing. We rely on our individual resources, but also upon one another for inspiration. If we don’t take steps to relieve the anxiety and restore hope, we will set the movement back a decade. The 2010 elections will be lost, but that may turn out to be the least of our problems.

[...]

Hope requires a tougher realism than either cynicism or surrender. Without an eyes-wide-open view of what is, the necessary steps for change are impossible to determine. Also, hope can easily devolve into a sentimental “everything’s gonna be alright” passivity or naivety. Popular melodrama sells a lot of this.

It takes much more character to hope in bleak times than it does to give up. That's invaluable advice.

The indistinguishables

I'm obviously six days late, but I've finally taken in what happened with Obama's speech six days ago. Who did he sound like last week? 9/11 this, 9/11 that. Fear, paranoia, 9/11. 18-year-old kids going to war next year were 10 years old on 9/11; this thing is fueled by legends and folklore to them at this point. I guess we knew he would do this, from day one. But that doesn't make it any less disheartening. A candidate Obama doesn't have near the responsibility and access to hard truths like a President Obama. It was another one of "those" dark days.

Holding it at West Point? Mistake. It was not a rousing speech. It was the most somber war escalation speech in history, I'd boldly presume. Like any other president that has sent troops to war -- much less a botched, near-impossible war started by someone else -- the soldiers that die are his kids now. Haunting stuff. But they're so paralyzed by the powerlust and sheer death hold the system has on them.

What, is he giving the generals "one last try" to get it right? How war-tested and noble of our commander-in-chief. What about all the death, of us and Afghanis? You can't stop fucking terrorism (in this case al-Qaeda), and you definitely will only help coalesce al-Qaeda and the Taliban. You think escalating is a deterrent for them? This is what they want: To contribute to America's self-inflicted bleeding of lives, resources, principles. And Washington, like most everyone else in the U.S. it seems, fiddles while Rome burns. That's what I thought of our president. It reminds me a little of the last scene in Orwell's "Animal Farm" sometimes.

Update: This post by Glenn Greenwald exemplifies the "Animal Farm" comparison:

As (Harper's Scott) Horton writes, the claim that government officials enjoy a virtually impenetrable shield of immunity even in the commission of war crimes "has emerged as a sort of ignoble mantra for the Justice Department, uniting both the Bush and Obama administrations." Indeed, that is the common strain of virtually every act undertaken by the Obama DOJ with regard to our government's war crimes and other felonies, from torture to renditions to illegal eavesdropping.

With revelations of serious, recent abuse at an ongoing "black site" prison in Afghanistan, serious questions have been raised about the extent to which detainee abuse has actually been curbed under Obama. But there's no question that the single greatest impediment to disclosure and accountability for past abuses is the Obama Justice Department, which has repeatedly gone far beyond the call of duty in its attempt to protect Bush war crimes and other illegal acts. This new Seton Hall Report regarding these three detainees deaths illustrates not only how perverse and unjust, but also how futile, such efforts are. War crimes never stay hidden, and the only question from the start was whether the Obama DOJ would be complicit in the attempt to shield them from disclosure. That question has now been answered rather decisively.

The system we live in ...

... is this:

The firestorm of criticism over the trial of Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, should not obscure a darker truth: Trial is only one prong of Obama's Guantanamo strategy. Some of the Guantanamo prisoners, including those who have been detained for seven or eight years, will remain imprisoned indefinitely with no prospects of ever seeing the inside of a courtroom. Obama's much-lauded intention to close Guantanamo will not change the fate of these prisoners, who will be transferred to other prisons in the United States or abroad, and as a result, the president will perpetuate one of the most troubling policies of the Bush administration. If Obama does not repudiate this policy, it will define what the government can do in the future.

And in a cruel twist, I can't communicate.

What did Osama bin Laden envision for America?

I've often wondered just what Osama bin Laden envisioned as he was planning 9/11. What did he think was probably going to happen in America if the attacks were anything like what they turned out to be: 3,000 dead and destruction that lingers today. Did he envision a war in Afghanistan, a holy war at that? In his wildest dreams, did he ever think we would turn out the way we did? And then, should we escalate when no one is sure what will happen, or, really, or whether we can ever claim this entire war was worth it?

Radley Balko gives his answer:

Here’s a question for the politicians who support Obama’s plan, as well as those to the right of him who think it isn’t warmongery enough: What exactly does “victory” in Afghanistan look like? Certainly no one in his right mind thinks the country is going to look like, say, Iowa in 20 years. Same for Iraq. Are we expending what in the end will be a few trillion dollars and likely the lives of 6,ooo-7,000 troops to create another . . . Saudi Arabia? Another Egypt?

We do have a pretty good idea how bin Laden pictured victory. It looks a lot like what we’re seeing now. He wanted a holy war. We gave him two. We’ve compromised our values, rolled back civil liberties, and let our politicians generally scare the crap out of us whenever they want new powers. Oh, and we’ve let the bastard live to gloat about it all.

This war should have been over the moment we disposed of the Taliban. The military doesn’t build liberal societies. They destroy illiberal ones (and they do it very well). I’ll wager we have at least 50,000 troops in both Iraq and Afghanistan by the end of Obama’s first term. In fact, I’ll bet it’s closer to 75,000. Lovely that this was the anti-war candidate.

I'm not convinced bin Laden had thought America would go quite as far as it did. Actually, I think going to Iraq was the unexpected, bombshell cherry-on-top for him, if he's still alive. At the very best, I think bin Laden expected America would come to Afghanistan and blitz the Taliban, have general "success" and leave after a few years. I'm sure the religious aspect was prominent in his mind. If he was anywhere near all of this, he's a genius. (I'm certainly not condoning mass murder, I'm just saying he would have had incredible foresight.)

But the economic costs? Humanitarian tragedies? Gitmo? Wiretapping? No way. And definitely not Iraq. Has this ever occurred to any of these neo-cons and hawk "tough guy" torture-enthusiast warmongers in our government and political establishment? That we gave him what he wanted and so much more? Doubtful.