I’ll do a fuller convention preview post in the morning, but just a final mention – I have a petition to tell the CDP to support the resolution to impeach federal Judge Jay Bybee, who sits on the 9th Circuit Court of Appeals despite having been one of the architects of the flawed legal justification for torture committed in our name.  There are musings about independent commissions and special prosecutors in Washington, but I believe we must press on all fronts, and the impeachment of Bybee, who sits on the 9th Circuit in San Francisco, is particularly acute here in this state.  Currently I have 4,435 signatures – please sign by midnight tonight and I will present yours and everyone else’s name at the Resolutions Committee tomorrow at 3pm.  If we get this resolution passed, we will have a powerful tool to force California members of Congress to initiate hearings in the House Judiciary Committee to impeach Bybee.  I think it’s absolutely possible that we make this happen over the weekend – but the leadership of the CDP needs to know that there’s a large and powerful constituency behind this effort.

Please sign the petition if you haven’t already.  And the Courage Campaign has their own petition, with around 8,500 signatures at last count.  13,000 people arguing for impeachment is a powerful number – let’s go for more.

As we read with growing horror the most recent torture memos released by the Obama Administration, knowing that there are more revelations to come, I think a lot of us are asking the question that mcjoan asked yesterday.  “Now what?”  How can we address this moral rot that continues to eat away at our legitimacy?  What can be done?  Mcjoan offers a couple suggestions.

The process by which our government came not only to torture, but through torturous logic try to convince themselves that it was legal is not just the product of evil. It’s the product of excessive, unchecked power that has proven far too easy to seize, to hold, and to exercise.

And we can’t allow that to happen again.

That’s why, at the very least, there must be investigations. Whether through the special prosecutor that the ACLU has called for, or Senator Leahy’s proposal for a commission of inquiry, America has to know how this happened, gruesome step by gruesome step. There is no other way to prevent it from happening again.

Mcjoan is right that our corroded, accountability-free zone in Washington will require an incredible amount of effort just to bring us to these steps.  We need to counter the establishment pressure to move away from this evil with our own pressure, to support the rule of law, to recognize that justice delayed is justice denied, and that a failure to hold accountable these acts will result in them returning, in spades, in the future.  Without this accounting, in a very real sense our democracy dies.

And there is an actual mechanism, a way to leverage grassroots anger and push the elected officials who can make these decisions, at least in one case.  We can prove the desire for accountability in the country and take a systematic approach to restore democracy and the rule of law.  And it starts with Jay Bybee.

over…

As many people noted yesterday, Jay Bybee, the former head of the Office of Legal Counsel whose name appears as the author of the August 1, 2002 memo justifying and authorizing clear acts of torture by the CIA (some argue that John Yoo wrote the memo, but Bybee signed it), now works as a federal judge on the 9th Circuit Court of Appeals in San Francisco, with a lifetime appointment.  He sits in judgment when we have clear evidence that his judgment is fractured.  In just this particular memo, he agreed that waterboarding “constitutes the imminent threat of death” and still allowed its use.  He twisted the research of sleep deprivation experts to justify the torturous delivery of harm to prisoners through this technique.  He found the rationales to explain away his own legal exposure and that of his superiors, while clearly understanding these techniques to be wrong when applied by other countries.

And that’s just this memo.  More are expected.

One focus of scrutiny could be the period from April to August of 2002, when C.I.A. officers interrogated Abu Zubaydah before the Justice Department gave its official written endorsement of the interrogation program. According to a Justice Department inspector general’s report, F.B.I. officials who watched some of the interrogation sessions in a Thailand safe house reported that the C.I.A. interrogators had used several harsh techniques.

The Justice Department is also expected make public an internal ethics report that officials say is highly critical of top Bush lawyers who drafted the interrogation memos, including Jay S. Bybee, John C. Yoo and Steven G. Bradbury. Legal experts said there is an outside chance that the report could include referrals to state bar associations, which have the power to reprimand or disbar their members.

Because Bybee holds a lifetime appointment conferred by the Senate (by a 74-19 vote), I would argue it is the requirement of the Congress to act and right this horrific wrong.  Bybee was confirmed in March 2003, well before these memos came to light.  This new information alone should be grounds for an impeachment and removal of Jay Bybee from the 9th Circuit Court.

Impeachment would require a majority vote in the House, and removal would need a 2/3 vote in the trial in the Senate.  I agree with Jonathan Zasloff that there are likely 34 Republicans in the Senate willing to go on record as objectively pro-torture, and thus removal would be less likely to be successful.  I also agree that the Congress should be compelled to do this anyway.

Regardless of the Obama Administration’s decision on prosecution, then, impeachment hearings and a Senate trial for Bybee would signal a necessary reassertion of Congresional authority and would ensure at least some minimal accountability.

Alas, emphasis there should be on the “minimal.” I would hope that the House would impeach, but Senate Republicans would clearly vote no to prevent removal.

I don’t know how the politics work on this. The Beltway media will clearly spin this as the Democrats obsessed with the past and not concerned about the supposedly grave national security implications. On the other hand, Republicans would be forced to defend an incompetent, ethically-challenged judge.

But maybe, given how unclear the politics are, it might be best to do, you know, the right thing. John Conyers should start scheduling preliminary hearings right away.

As it happens, the California Democratic Party can speak with one voice about this next week.  Grassroots activists submitted a resolution to be decided at next week’s convention in Sacramento that would call for the impeachment of Jay Bybee from the 9th Circuit.  This resolution has already been accepted, UNANIMOUSLY, by the Los Angeles County Democratic Party.  It can pass at the state level.

Resolutions are somewhat toothless unless used properly AFTER the fact.  In the resolution (which I’ll put below), it is stipulated that “a copy of this resolution with its original authorization be sent to the Office of the Speaker of the United States House of Representatives, the Chair of the House Judiciary Committee, and the Majority Leader of  the United States Senate, and that copies of the signed resolution be sent to each member of the California delegation to the United States Senate and House of Representatives.”  California members of the HJC include Zoe Lofgren, Maxine Waters, Howard Berman, Brad Sherman, Adam Schiff and Linda Sanchez.  The last five, at least, have part or all of LA County in their districts, and could be told RIGHT NOW that their local party has resolved unanimously to impeach Bybee.  Should the entire state party agree, all the California members, including the Speaker of the House, and the two Senators (both of whom voted against confirming Bybee) can be told the same.  And resolutions like this could spring up all over the country, increasing pressure from the bottom up for the Congress to act.

It starts next week in Sacramento.  The Resolutions Committee meeting will be held at 3:00 on Friday, April 24, at the Sacramento Convention Center, 1400 J St., Sacramento, CA.  If you’re in the area or if you are a delegate, you can come to the meeting and advocate for the resolution.  But the decision will likely be made beforehand.  Only a few resolutions get out of committee and to the floor of the convention, and the others are tabled, or combined, or referred to a separate committee.  We CANNOT let this happen.  The ledership of the California Democratic Party needs to hear from constituents on this issue.

Sacramento Office

(916) 442-5707 phone

(916) 442-5715 fax

Los Angeles Office

(310) 407-0980 phone

(310) 407-0981 fax

email contact form

I’ve also created a petition at Petition Online urging the CDP to pass this.

Petition

We have an opportunity to use the party apparatus to push for accountability and send it up to leaders in Washington.  I urge everyone to get on board with this.  Thanks.

RESOLUTION TO IMPEACH JUDGE JAY BYBEE

Passed Unanimously by LACDP, 4/14/09

Whereas, the 1st Amendment to the United States Constitution guarantees the people a right to petition the government for a redress of grievances; and,

Whereas the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment, the supreme law of the land under Article VI of our Constitution, requires the prosecution of those who authorize torture, waterboarding is torture, and both former President George W. Bush and former Vice President Richard B. Cheney have admitted to authorizing waterboarding; and,

Whereas former Assistant Attorney General, and current Federal Judge of the Court of Appeals for the Ninth Circuit Jay Bybee signed the “Bybee Memo,” or “Torture Memo” of August 1, 2002, which advised the C.I.A. that “cruel, inhuman or degrading” treatment was at times allowable under U.S. law, and authored, co-authored and signed other memos on “extraordinary rendition” and “enhanced interrogation,” more of which are being currently revealed to the American public as the new administration brings them to light; now,

Therefore be it resolved that the Los Angeles County Democratic Party urges that the United States House of Representatives begin impeachment proceedings against Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit, charging him with facilitating the authorization of torture while employed by the United States Department of Justice; and,

Therefore be it further resolved that a copy of this resolution with its original authorization be sent to the Office of the Speaker of the United States House of Representatives, the Chair of the House Judiciary Committee, and the Majority Leader of  the United States Senate, and that copies of the signed resolution be sent to each member of the California delegation to the United States Senate and House of Representatives.

Yesterday the Senate Judiciary Committee held a hearing on Patrick Leahy’s call for a truth commission to investigate the crimes of the Bush Administration.  Obviously the events of the past couple days, with the release of OLC memos that really transformed the concept of democracy in the Bush era, is revitalizing this debate.

Justice Department officials said they might soon release additional opinions on those subjects. But the disclosure of the nine formerly secret documents fueled calls by lawmakers for an independent commission to investigate and make public what the Bush administration did in the global campaign against terrorism.

The chairman of the House Judiciary Committee, Representative John Conyers Jr., Democrat of Michigan, said the revelations, together with the release of new information about the Central Intelligence Agency’s destruction of 92 interrogation videotapes, had underscored the need for a commission that would have the power to subpoena documents and testimony.

The OLC memos are still extraordinary, so horrifying in the picture they paint of executive power that the head of the OLC, Steven Bradbury, felt the need to disavow them near the end of the Bush regime.  It’s likely that he did so to take the heat off of himself.  But there ought to be no get-out-of-jail-free card for the actions taken as the result of these memos.  Glenn Greenwald looks at one of the documents.

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments.  It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens.  And it wasn’t only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls “domestic military operations” was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying — in secret and with no oversight — on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.

As Harper’s Scott Horton says, “We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship.”   More on the memos from Jack Balkin and Anonymous Liberal.

Yoo, who is hiding out in Orange County at Chapman University, admitted in an interview to the OC Register only that his memos “lacked a certain polish,” in a profile more concerned with how he’s enjoying the beaches and Vietnamese food of Southern California rather than the “hippies, protesters and left-wing activists” of Berkeley.  Somehow, he’s still teaching law.  Jay Bybee, the other major player in the composition of these memos, is a 9th Circuit Appeals Judge in San Francisco.  Bruce Ackerman recommends impeachment.

Despite the calls of apologists to the contrary, we have to have a reckoning on this.  The previous President, aided by his allies, asserted broad executive powers far outside Constitutional strictures, and the results were illegal wiretapping, torture, extraordinary rendition, indefinite detention, and a series of other crimes against the state and violations practically every amendment in the Bill of Rights as well as international law.  

But one member of the Judiciary Committee wasn’t at the truth commission hearing yesterday – Dianne Feinstein.  Through a spokesman, she sidestepped whether or not she supports a commission, saying she “hasn’t seen a proposal.”  But she is instituting a competing investigation, from her perch at the Senate Intelligence Committee, that is bound to be a whitewash:

The inquiry is aimed at uncovering new information on the origins of the programs as well as scrutinizing how they were executed — including the conditions at clandestine CIA prison sites and the interrogation regimens used to break Al Qaeda suspects, according to Senate aides familiar with the investigation plans.

Officials said the inquiry was not designed to determine whether CIA officials broke laws. “The purpose here is to do fact-finding in order to learn lessons from the programs and see if there are recommendations to be made for detention and interrogations in the future,” said a senior Senate aide, who like others described the plan on condition of anonymity because it had not been made public […]

The senior aide said that the committee had no short-term plans to hold public hearings, and that it was not clear whether the panel would release its final report to the public […]

Senate aides declined to say whether the committee would seek new testimony from former CIA Director George J. Tenet or other former top officials who were involved in the creation and management of the programs.

The Senate investigation will examine whether the detention and interrogation operations were carried out in ways that were consistent with the authorities and instructions issued in the aftermath of the Sept. 11 attacks, officials said.

The panel will also look at whether lawmakers were kept fully informed. Sen. Dianne Feinstein (D-Calif.), the chairwoman of the committee, and others have said that the Bush administration improperly withheld information from Congress on the CIA’s operations.

This is basically a turf war.  Feinstein wants control of the investigation process in her committee, over Patrick Leahy.  And she wants the hearings to be private as well as the final report.  Emptywheel writes:

Pat Leahy will have an investigation regardless of what DiFi says–and he’s going to start it now. So DiFi issues a vaguely formulated leak saying that she’s going to cover the CIA’s role in torture. And, voila! Now the CIA and DiFi can say try to circumscribe Leahy’s investigation. And of course, by doing an investigation that starts with the premise that it is “not designed to determine whether CIA officials broke laws,” even while admitting that CIA officers may have gone beyond the “instructions issued in the aftermath of the Sept. 11 attacks,” it ensures no accountability even for those who went beyond Cheney’s torture regime. And, finally, absolutely no current plans to make public the results, either through public hearings or by releaing a report.

Call DiFi at (202) 224-3841. Thank her for recognizing the importance of understanding the mistakes we made in the past. Remind her that even Pat Roberts’ investigation into CIA Iraq intelligence was released publicly. Demand that she meet at least the level of transparency adopted by her Republican predecessors as SSCI Chair.

Agreed.  This is too important for it to be done in the secret bowels of official Washington as a “fact-finding mission” yielding a white paper that will wind up collecting dust on a shelf.  Feinstein is trying to let criminals off the hook, plain and simple.  History tells us that the inevitable return of criminals like this will only be emboldened to go further as a result.

I’m having some computer issues, but I have been able to notice that Leon Panetta, former White House Chief of Staff under Clinton, has been tapped for the CIA Director position.  Digby references this article from Panetta from this year:

Even though we now know that there were intelligence officials who questioned the assertion, few leaders were willing to challenge this argument for war because they knew it might undermine public support for the president’s decision to invade Iraq.

More recently, President Bush vetoed a law that would require the CIA and all the intelligence services to abide by the same rules on torture as contained in the U.S. Army Field Manual […]

all forms of torture have long been prohibited by American law and international treaties respected by Republican and Democratic presidents alike.

Our forefathers prohibited “cruel and unusual punishment” because that was how tyrants and despots ruled in the 1700s. They wanted an America that was better than that. Torture is illegal, immoral, dangerous and counterproductive. And yet, the president is using fear to trump the law.

I hope he gets cracking on putting the CIA under the Army Field Manual.  That would be a very good start.

As a side note, Panetta has been leading one of the most insufferable organizations in California’s history, a high Broderist effort called California Forward, which thinks the biggest problem in the state is that lawmakers from both sides don’t have drinks together anymore, or something.  At least Panetta’s influence on the state will be lessened.  He’s not my favorite guy by any stretch, but if he can manage to not have the CIA kidnapping and torturing anymore he can hold his head up high.

UPDATE by Robert: Apparently DiFi isn’t exactly wild about Panetta at CIA:

“I was not informed about the selection of Leon Panetta to be the CIA Director.  I know nothing about this, other than what I’ve read,” said Senator Feinstein, who will chair the Senate Select Committee on Intelligence in the 111th Congress.

“My position has consistently been that I believe the Agency is best-served by having an intelligence professional in charge at this time.”

It’s expected for a lawmaker in the beginning of a new election cycle to get a little more active, with high-profile articulations of positions on key issues.  So it is for Sen. Barbara Boxer.  In the past week, she has released a report on the statewide recession, featuring interviews with local officials from all 58 counties; demanding that Attorney General Mukasey intervene to reverse a “blatantly illegal” memo by EPA Administrator Stephen Johnson claiming that carbon dioxide is not a pollutant (the Supreme Court has already ruled that it is); and most interesting to me, wrote a letter to incoming Senate Foreign Relations Committee Chair John Kerry calling for hearings on the Bush Administration’s use of torture, as well as an outside commission to investigate it:

I write today to raise an issue of the utmost significance — the Administration’s use of torture against detainees held in U.S. custody. Despite widespread condemnation from Members of Congress, policy experts, and human rights advocates, Vice President Richard Cheney stated in a recent interview with ABC News that the torture policies used against detainees were appropriate and admitted that he played a role in their authorization. In fact, when asked if any of the tactics — including waterboarding — went too far, he responded with a curt “I don’t.”

I find Vice President Cheney’s response deplorable, particularly in light of a recent report released by the Senate Armed Services Committee following an eighteen-month investigation. In sum, the bipartisan report found that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.” The report, led by Senate Armed Services Chairman Carl Levin, concluded that “those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.” I fully support Chairman Levin’s proposal for an outside Commission with subpoena power to investigate this matter further.

The whole letter is here.  This is one step away from the needed call for an independent prosecutor to investigate Bush’s war crimes, but it’s as close as any Senator has been willing to go.  This suggests that Boxer considers an investigation of this nature to not only be the right thing to do in a democracy, but not electorally damaging whatsoever.  She should be supported in this belief and encouraged to go even further.  I know that Senator Boxer has begun asking for contributions to her re-election campaign.  Maybe a series of contributions of $9.12, signaling support for a “9/12” torture commission and an independent prosecutor, along with emails and letters explaining this, would relay the message?

We’re working on a case now that will make your hair stand on-end.

Our client, Naji Hamdan, a U.S. citizen, was detained and tortured this fall for three months by the United Arab Emirates with United States involvement.  Naji is still in prison there, now under the custody of local officials who charged him with terrorism-related offenses based on coerced confessions.

We’ve been lobbying our members of Congress and contacting the State Department but time is short!!  Help us pressure Secretary of State designee, Hillary Clinton to do something before she takes office. Naji’s story after the jump.

For over two decades, Naji and his family lived in Hawthorne, California, where he ran an auto-parts business and helped manage the Islamic Center of Hawthorne, a mosque and community center.  He was also monitored by the FBI.  The past two years were especially intense.  Naji’s brother, Hossam, and others who know him from his activities at the Islamic Center have all said that he’s a peaceful family man who would never support violence.

In 2006, Naji decided to relocate to the United Arab Emirates for business and family reasons.   This summer FBI agents traveled from Los Angeles to the U.A.E. to continue their questioning of Naji. Three weeks later he was taken into custody by agents of the U.A.E. state security forces and detained incommunicado for the next three months.  

His brother and his wife, Mona, also a U.S. citizen, were frantic. They contacted the ACLU/SC for help.  On November 26, 2008, one week after lawyers for the ACLU/SC filed a lawsuit alleging that the U.S. government was responsible for his detention, Naji was transferred from U.A.E. state security custody to the Al Wathba prison in Abu Dhabi where he remains to this day, charged with terrorism-related offenses.  

Recently, Naji was able to finally contact his family and an American consular official and told them he was severely tortured during his detention in U.A.E. state security custody and forced to confess to crimes that he did not commit.  

His torturers blindfolded Naji, so he couldn’t see them. They kicked and beat him to the point of Naji passing out. They strapped him into an electric chair, threatening its use. Naji heard some of the interrogators speak native English with an American accent. They asked him questions about topics only the U.S. federal agents would know.  

From all angles, his imprisonment looks like it’s been done at the request of the U.S. government, and his interrogation, which included severe torture, was done with participation of U.S. federal officials.  If the U.S. government requested or participated in his detention and torture in the U.A.E., the United States government has violated this U.S. citizen’s most fundamental rights.  

Naji’s situation is now urgent. If his prosecution is allowed to proceed in the U.A.E. based on evidence obtained through torture, Naji will receive a deeply unfair trial and unjust sentence.  

The policies of the current administration make appealing to Secretary Rice practically pointless.  Please help us urge Senator Hillary Clinton, President Elect Obama’s choice for the next Secretary of State, for Naji’s release and return to the U.S., where his rights can be protected.  If Naji has done something wrong, then the U.S. should charge him with a crime and prosecute him in the United States, where he can be assured his due process rights.  In addition, the role played by the U.S. government in causing Naji’s detention and torture must be thoroughly investigated.  Naji must be treated as all Americans deserve to be treated, with dignity and respect for their rights.

Thank you.

As it concerns the reports of Harman possibly being nominated to a post in the intelligence apparatus, it’s very important for everyone to remember how complicit Jane Harman has been in illegal acts by the Bush administration in allowing detainee torture to take place and in trampling on our rights as American citizens.  Because of her history, there’s no way she should get any of these jobs. (follow below)

From Glenn Greenwald’s post from July:

In December of last year, The Washington Post revealed:

Four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.

Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.

The article noted that other Democratic members who received briefings on the CIA’s interrogation program included Jay Rockefeller and Jane Harman. While Harman sent a letter to the CIA asking questions about the legality of the program, none ever took any steps to stop or even restrict the interrogation program in any way.

Identically, numerous key Democrats in Congress — including Rockefeller and Harman — were told that Bush had ordered the NSA to spy on American without warrants and outside of FISA. None of them did anything to stop it. In fact, while Rockefeller wrote a sad, hostage-like, handwritten letter to Dick Cheney in 2003 (which he sent to nobody else) — assuring Cheney that he would keep the letter locked away “to ensure that I have a record of this communication” — Harman was a vocal supporter of the illegal NSA program. Here’s what she told Time in January, 2006 in the wake of the NYT article revealing the NSA program:

Some key Democrats even defend it. Says California’s Jane Harman, ranking Democrat on the House Intelligence Committee: “I believe the program is essential to U.S. national security and that its disclosure has damaged critical intelligence capabilities.”

Harman then went on Fox News and pronounced that the NSA program was “legal and necessary” and proudly said: “I support the program.” Even worse, in February, 2006, Harman went on “Meet the Press” and strongly suggested that the New York Times should be criminally prosecuted for having reported on the illegal program. And indeed, in 2004, Harman demanded that the NYT’s Eric Lichtblau not write about the NSA program. As Lichtblau wrote in his recent book about a 2004 conversation with Harman:

“You should not be talking about that here,” she scolded me in a whisper. “They don’t even know about that,” she said, gesturing to her aides, who were now looking on at the conversation with obvious befuddlement. “The Times did the right thing by not publishing that story,” she continued. I wanted to understand her position. What intelligence capabilities would be lost by informing the public about something the terrorists already knew — namely, that the government was listening to them? I asked her. Harman wouldn’t bite. “This is a valuable program, and it would be compromised,’ she said. I tried to get into some of the details of the program and get a better understanding of why the administration asserted that it couldn’t be operated within the confines of the courts. Harman wouldn’t go there either. “This is a valuable program,” she repeated.

In light of this sordid history of active complicity, is it really any wonder that these leading Democrats are desperate to quash any investigations or judicial adjudications of Bush administration actions that they knew about and did nothing to stop, in some cases even actively supporting?

While I’d love to have the chance to replace Harman with a progressive Democrat in my solid blue 36th Congressional District here in California, I would gladly keep her as my congressional representative if that kept her from being in any of those positions of power over intelligence matters.  I think the most important thing first is to prevent her from getting named as DNI or CIA Director or DHS Chief.  That’s essential.