Sully accurately makes the point that neither Bush nor Obama have the authority to torture, that Congress alone as the authority to make rules regarding captures. Laws and treaties have been passed that make torture clearly illegal in the US., therefore:

no legal authority in  human history would judge the waterboarding of a prisoner 83 or 183 times in one month as anything but torture. If it were done to a US soldier, would Dick Cheney refuse to call it torture? Of course not, although it is telling that no reporter has ever asked him this obvious question directly.

And so it is simply an empirical fact that president Bush broke the law and violated his oath of office by ordering the torture of prisoners.

Note that this wasn’t an emergency moment, or a ticking time-bomb scenario. It was a decision to torture made months after the 9/11 attacks and re-asserted years after the 9/11 attack, and set up as a program, with elaborate rules, staffing and bureaucracy, to torture prisoners for the indefinite future.

Now fast-forward to February 2007 when the International Committee of the Red Cross notifies the president of the United States that it believes that his administration has engaged in what was unequivocally torture of prisoners. At that point, the president is required, by law and by treaty, to open an investigation and prosecution of the guilty parties. The president failed to do that, another breach of the law. Moreover, any president privy to that information is required to initiate an investigation and prosecution – or violate the law and the Geneva Conventions.

And so Obama’s refusal to investigate war crimes is itself against the law. And so torture’s cancerous route through the legal and constitutional system continues, contaminating the future as well as the past, rendering the US incapable of upholding Geneva against other nations, because it has violated Geneva itself, and giving to every tyrant on the planet a justification for the torture of prisoners.

In this scenario, America becomes a city on a hill, where the rule of law is optional and torture acceptable if parsed into legal memos that do not pass the most basic professional sniff-test.

America becomes a banana republic.

(Emphasis mine)

Just so.  You can’t parse or nuance your way out of this. Obama, through inaction, makes himself complicit with the clear crimes of the Bush administration. He has a duty to investigate and prosecute should evidence lead in that direction. It’s  not an option. There have been some stirrings of independence in the DOJ. Let’s hope that if Obama lacks the stomach to follow the law, Eric Holder will see it as a clear matter of duty.

Wrong is wrong. This a a battle for the soul of our republic, for whether or not we’re a nation of laws, or as Sully says above,  “banana republic”.

MSNBC is saying right now that Obama is leaving it to Holder and the DOJ to decide if it’s appropriate to persue the policy makers who approved torture as a valid interrogation technique. We’ll see what Holder is made of. An independant prosecutor would be a good first step.

Greenwald reports that the ranking democratic member of the House Intelligence Committee (an oxymoron if there ever was one) and Bush wiretapping enabler, Rep. Jane Harman D-Ca was caught on tape offering to interfere with the espionage investigation of two American-Israeli Public Affairs Committee officials. Now here’s the good part, it was picked up by the NSA wiretapping program that she’s been such a cheerleader for. Let me savor the delicious irony of that, ahhhh yes…

This was captured on tape while Alberto (Fredo) Gonzales was AG and he personally intervened to kill the investigation in to Rep. Harman. She was a useful tool in protecting and defending Bush’s illegal wireptapping program. That makes this sort of a twofer.

Perhaps Rep. Harman has a better taste now of why allowing the government to sweep up massive streams of telecommunications is such a bad idea. Hoisted by her own petard, indeed.

via George W. Bush’s Disposable Constitution—By Scott Horton Harper’s Magazine.

Here’s Neil Lewis’s summary in the New York Times:

“The law has recognized that force (including deadly force) may be legitimately used in self-defense,” Mr. Yoo and Mr. Delahunty wrote to Mr. Gonzales. Therefore any objections based on the Fourth Amendment’s ban on unreasonable searches are swept away, they said, since any possible privacy offense resulting from such a search is a lesser matter than any injury from deadly force. The Oct. 23 memorandum also said that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It added that “the current campaign against terrorism may require even broader exercises of federal power domestically.”

John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the President as commander-in-chief. The rest of the Constitution was apparently printed in disappearing ink.

We need to know how the memo was used. Bradbury suggests it was not much relied upon; I don’t believe that for a second. Moreover Bradbury’s decision to wait to the very end before repealing it suggests that someone in the Bush hierarchy was keen on having it.

No 1st or 4th ammendment concerns for them, at all.

Administration Invokes State Secret Argument – NYTimes.com.

“This is not change,” he said in a statement. “This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”

A Justice Department spokesman, Matt Miller, said the government did not comment on pending litigation, but he seemed to suggest the Obama administration would invoke the privilege more sparingly than its predecessor.

I saw the NY Times article that the Engadget Mobile post talks about. The shorter version is: Wireless Carriers, in an absence of regulations, have decided it’s profitable to, as a group, triple texting rates to force more revenue per subscriber.

Now, I’m really too old to be a texting champ. My better half is a past master of no-look texting, which is apparently a required course in elementary school in Manila, but I’m older and slower. I don’t text much, not more than a few times a month. Certainly not enough to pay for a messaging bundle.

So I get to pay the 20 cent rate. Why? Because we have 3.5 large nationwide cellular companies and nobody tells them they can’t. The federal government has shown zero interest, neither on an anti-trust basis from DOJ, nor on a regulatory basis from FCC. The market seems little less than self regulating. They will continue screwing customers until someone stops them.

“A Tale of Three Lawyers” by Scott Horton (Harper’s Magazine)

As Jefferson Ruling Stands, Prosecutors Feel Stymied – washingtonpost.com
The Supreme Court announced yesterday that it will not review a lower court’s decision that an FBI raid on Rep. William J. Jefferson’s congressional office violated the Constitution, a ruling that federal prosecutors had said could make lawmakers’ offices a “sanctuary for crime.”

And how is this different? Seems to me that Congress has been a sanctuary for crime for decades. All kidding aside this upholds the status quo, where the executive branch isn’t allowed to go on fishing expeditions in Congressional offices. It allows the $90K found wrapped in foil in Jefferson’s freezer to be admitted into evidence. (Doesn’t everyone do that?) It doesn’t allow a free for all search of Congressional offices. This case was the first time the FBI attempted that and I think courts decided it correctly.

TPMmuckraker | Talking Points Memo | Mukasey Tongue-Tied on Administration Law Breaking
MUKASEY: Torture, as you know, is now unlawful under American law. I can’t contemplate any situation in which this president would assert Article II authority to do something that the law forbids.

SPECTER: Well, he did just that in violating the Foreign Intelligence Surveillance Act. He did just that in disregarding the express mandate of the National Security Act to notify the Intelligence Committees. Didn’t he?

Mukasey  can’t compose a coherent response. There really isn’t one, is there?

Mukasey Demurs on Waterboarding – New York Times
“Given that waterboarding is not part of the current program and may never be added to the current program, I don’t think it would be appropriate for me to pass definitive judgment on the technique’s legality,” the attorney general said, speaking in the cautious way that his Senate questioners have sometimes found evasive and infuriating.

1. A CIA employee says they used waterboarding on a prisoner.
2. The US uses only legal methods of interrogation.
3. Therefore waterboarding is legal.

Seems pretty straight forward, but the White House spokesperson Dana Perino refuses to say if it’s legal or not. Why might that be? We have 100 years of history going back to the American occupation of the Philippines, prosenUS law and international treaties that clearly defines waterboarding as torture. Can’t go that way. The other option is

So we tortured the al-Qaeda village idiot, then claimed a great victory against a high level operative. Despite being briefed about the real value of the poor fool by the CIA, Bush went on TV to say that we’d foiled deadly plots and saved lives. Don’t you feel safer already?

From Roll Call by way of Americablog, senate majority leader Harry Reid is going to block Bush recess appointments by not going into recess. He also calls into question the Chuck Schumer’s contention that he *had* to vote for Mukasey’s AG appointment because of the possibility of a recess appointment of someone worse.  Apparently, not so much.

The presidency of George W. Bush is a criminal conspiracy to cover the ass of George W. Bush.

Levin was fired for daring to not toe the line and be a good Bushy.

The Senate Judiciary Committee will, unless something drastically changes, approve Judge Mukasey for Attorney General without him uttering the words “water boarding is illegal”. This is not to protect military personnel, it is to protect policy makers, up to and including the president. The interrogators are immunized by law. It is the senior civilian leadership that’s at risk.

When will someone in a position of power actually do something about it? There is no ambiguityabout torture. It’s wrong, it’s illegal and it’s actionable. As Wategate veteran John Dean suggests, can’t we at least get a special prosecutor to investigate war crimes?

Crooks and Liars has the whole thing here.

ABC News: White House Blocked Waterboarding Critic
A senior Justice Department official, charged with reworking the administration’s legal position on torture in 2004 became so concerned about the controversial interrogation technique of waterboarding that he decided to experience it firsthand, sources told ABC News.

Daniel Levin, then acting assistant attorney general, went to a military base near Washington and underwent the procedure to inform his analysis of different interrogation techniques.

After the experience, Levin told White House officials that even though he knew he wouldn’t die, he found the experience terrifying and thought that it clearly simulated drowning.

Levin, who refused to comment for this story, concluded waterboarding could be illegal torture unless performed in a highly limited way and with close supervision. And, sources told ABC News, he believed the Bush Administration had failed to offer clear guidelines for its use…

…But Levin never finished a second memo imposing tighter controls on the specific interrogation techniques. Sources said he was forced out of the Justice Department when Gonzales became attorney general.

Never any dispute within the Justice Dept on torture?

Looks like another pol selected for their ability to agree.

From what I read it looks like Mukasey is far too willing to support torture and an expansive view of Presidential authority to wiretap without warrants. His only saving grace is relative independance from the political interference in DOJ activities. Is that enough to make him supporatable?

No matter who the President nominates, it seems certain that it will be someone who supports his views of Presidential authority. This may be as good as can be expecgted under the circumstances.

OK, we all oppose torture, Dubya and Chenney included. The rub is exactly how does the AG nominee define torture? Does he have an expansive view that encompassing the same methods used by the Nazi’s during WWII and the KGB during the Cold War?

About damned time. All roads lead to the White House…

The House Lawyer Departs – New York Times
Attorney General Alberto Gonzales has finally done something important to advance the cause of justice. He has resigned. But his departure alone cannot remove the dark cloud that hangs over the Justice Department. President Bush needs to choose a new attorney general of unquestioned integrity who would work to make the department worthy of its name again — and provide the mandate to do it. Congress needs to continue to investigate the many scandals Mr. Gonzales leaves behind.

An Unlamented Exit – Washington Post
From the start, Alberto Gonzales was the wrong man for the job.
HIS STATEMENT was as brief as it was bland. No mea culpa, no explanation, only the barest of facts. It was, in short, an exit befitting Attorney General Alberto R. Gonzales.

Gonzales resigns – Washington Times

In the end, Attorney General Alberto Gonzales could not quiet the storm against him, and he resigned. The resignation makes sense for a number of reasons, first to limit the damage wrought by the toxic political atmosphere created by Democrats when Mr. Gonzales did not explain with precision or consistency the reasons why he fired several U.S. attorneys. The apparent contradictions between Mr. Gonzales’ version of events and what others have said invited an unusually strong response from those spoiling for a fight with someone, anyone, close to President Bush. He further invited criticism from usually sympathetic Republicans. His resignation was inevitable..

…Mr. Gonzales, who also served on the Texas Supreme Court, was never popular among conservatives, but any fair assessment of his legacy must take into account his accomplishments. Among these was his constancy in the fight against terrorism, on issues ranging from detainees of terrorists to electronic surveillance. As historians study this period and others debate the merits of the president’s policies looking forward, it’s clear that Mr. Gonzales, flawed like we all are, stood with a handful of others in defense of the president’s war policies. Everyone knew where he stood.

Mr. Gonzales deserves further credit for his work in the confirmation of the nominations of John Roberts and Samuel Alito to the Supreme Court, which ranks as one of two or three signal achievements of the Bush administration.
Now that he is departing, Democrats will use the confirmation hearings of his successor, if there is one, as another prime opportunity for battle. Some will be tempted to imagine that his departure will mark the clearing of the clouds of toxicity that have wrapped Washington in their embrace. Fat chance.

It was always all about Al – LA Times
Farewell to one of the most self-absorbed attorneys general ever, who should have resigned long ago.
‘Even my worst days as attorney general have been better than my father’s best days.”

One doesn’t want to begrudge Alberto Gonzales a brief, self-indulgent moment of mawkishness as he ignominiously departs the public stage. But one of his main problems was that mawkish self-indulgence was often his defining contribution to the public debate.

To the bitter end, Gonzales remained the most self-involved attorney general in modern memory. (Full disclosure: My wife worked for Gonzales and his predecessor.) Gonzales liked to give speeches — even after he left the White House for the Department of Justice — about what a great country this is that it would let a man like him drive through the White House gates. He liked to complain about how hard his job was, and he defined that job first, last and always as being the president’s man. Oh, and he mentioned that he was the grandchild of immigrants, by my rough calculation, 12 trillion times.

Editorial: Resignation of Alberto Gonzales overdue – NewsDay
He had to go. Attorney General Alberto Gonzales, who announced his resignation yesterday, was painfully unsuited to be the nation’s top law enforcement official. He had too little respect for the truth, the rule of law and the Constitution. And he was loyal to a fault, to his patron and friend, President George W. Bush.

Gonzales was Bush’s enabler. When he should have provided principled counsel on the requirements of the law and the Constitution, he instead fashioned rationalizations for torture, indefinite detention and warrantless wiretaps.

When it appeared that the administration fired eight United States attorneys it judged insufficiently partisan in selecting targets for prosecution, Gonzales fronted a clumsy cover-up. His evasive, shifting explanations for the firings – sprinkled with convenient memory lapses and a stunning lack of accountability – left even many congressional Republicans exasperated with his artless dodges.

Gonzales made justice the servant of politics – St Pete Times

President Bush has it backward. In announcing his acceptance of Alberto Gonzales’ resignation, Bush complained his attorney general’s “good name was dragged through the mud for political reasons.” Actually, it was Gonzales who tarnished the reputation of the Justice Department by subordinating the interests of justice to the service of politics. During his 2 1/2 years as attorney general, Gonzales was never more than Bush’s lawyer. He demonstrated that narrower agenda nearly every time he came before Congress with his half-truths, convenient memory lapses and obfuscations. The question was not whether he should resign but if he and the president ever would acknowledge the obvious and give in.

Bush’s regret at seeing his old friend and loyalist go is understandable. Gonzales, first as White House counsel and then as attorney general, couldn’t seem to deny his patron anything.

When the Geneva Conventions got in the way of treating prisoners harshly, Gonzales declared the international treaty “quaint” and “obsolete.” He then helped pull together legal arguments for the defense of torture.

When the president expunged due process rights for Americans declared enemy combatants, Gonzales championed that view.

When the White House wanted a program of warrantless domestic wiretapping continued despite legal objections by the Justice Department, Gonzales went to the hospital bed of the ailing John Ashcroft, then attorney general, to try and wangle approval.

When the White House wanted certain U.S. attorneys fired apparently because they weren’t using their office in a sufficiently partisan manner, Gonzales carried out the plan. Then he downplayed his role to Congress even as other Justice Department officials contradicted his version of events.

Gonzales never seemed to grasp the responsibilities of his office or demonstrate the intellectual heft for the job. His questionable competence combined with his politicization of the department demoralized many of the fine career professionals who worked there. Sen. Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee, called the department “close to being dysfunctional.”

It’s Past Time For Gonzales To Go – Tampa Tribune
Attorney General Alberto Gonzales resigned Monday, surprising many in Washington who had long wanted him gone.

The president expressed reluctance in accepting his old friend’s departure – he leaves Sept. 17 – yet he must feel some relief that his attorney general and confidante knew it was time to go.

Gonzales, the nation’s top Hispanic official, had become a political liability. He leaves Washington with little support outside the White House. Criticism of his behind-the-scenes leadership in the war on terror and his management of the Justice Department is well-earned.

Gonzales fed the impression that he politicized the Justice Department. Accused of firing eight U.S. attorneys for political purposes, he appeared before congressional committees on several occasions only to offer half-baked, inept explanations. As the top law enforcement officer in the United States, he displayed a poor memory and an inability to recall details.

While President Bush had every right to fire any prosecutor, Gonzales’ crude explanations made the decisions seem driven solely by election-season politics, rather than performance issues.

The Democrats have had fun with the attorney general, calling him everything from disingenuous to incompetent – and those are the nice adjectives.

But Gonzales’ sorry public performance has turned even the president’s supporters against him.

Bush named the Patriot Act, the Military Commissions Act and pursuit of political corruption has bearing the mark of Gonzo. I find it odd that even Bush could find those things to have any positive impact on American political life. Trampling the constitution illegally suspending habeus corpus and politicizing the D.O.J. in furtherance of Rove’s goal of a “permanent majority”?

I suppose it’s naivety to believe we would see anything other than blaming Congress for hounding poor Gonzo out of office. I guess repeatedly lying to Congress under oath is a positive in Bush’s narrow little politically driven world. The sad part is no one in the Bush White house thinks that destroying the independence of the D.O.J. was a bad thing. The best defense they have is:

1. Lie about the reasons, i.e., “It was for performance reasons”.
2. Claim that the Clinton did it, even if that’s completely inaccurate.
3. Destroy e-mails relevant to an ongoing investigation, aka obstruction of justice.
4. Blame subordinates and watch them scramble for immunity and/or the exit.
5. Stonewall any congressional attempts to investigate under color of “executive privilege”.
6. Blame the politically charged environment Congress, i.e., the exercise of constitutionally mandated oversight.

What took so long? I guess it was hard to find that unique combination of disdain for the constitution, loyalty to Bush and mind boggling incompetence. Those are some mighty big shoes to fill over at Justice.