Watch Out: I Can Always Bring This Back to Stanley Fish

[Photo: Jay Bybee and family / Meridian]

NYT editorializes for the impeachment of Jay Bybee, torture memo author, current federal appeals court judge, on the grounds of a warped understanding of the President's constitutional powers. All this re: his writing torture into the law.

NYT linked to the new documents, which cover warrantless wiretapping, use of the US military to pursue terrorists domestically, pulling out of the Anti-Ballistic Missile Treaty, detention of American citizens charged with terrorism, and extraordinary rendition. They skip the torture memo because it's long been released, Bybee has long been on the bench, and John Yoo is the only person out there vociferously defending his crimes.

We'll leave aside the contradiction inherent NYT's romantic prose and pragmatic posture, suing for Bybee's dismissal six years after his nomination and at a time of Democratic ascendancy. In 2004, he was a footnote to an opinion denouncing Thomas Griffith; NYT hasn't always demanded his impeachment/resignation. They just got on the boat today.

Again, leaving all that aside, the real problem is in the perceived boundary between academic behavior and political behavior. Bybee is a judge and can be impeached for high crimes and misdemeanors. John Yoo is a professor and is, apparently, exempt from such calumny. Both men issued legal opinions that rationalized all manner of weirdo executive branch usurpations of power. One is in the Academy, so he's clear. It's as if Stanley Fish were on the editorial board, and you can say and do whatever wack shit you feel (Ward Churchill) so long as you don't try to problematize the Academy itself (Denis Rancourt).

Conspiracy theorists, people who want Iran bombed yesterday, people who want Israel pushed into the sea, war criminals and ordinary street freaks -- all their actions are OK so long as they 1) stay in the Academy 2) keep the Academy away from "ordinary life". This is how we get into Bybee-not-Yoo, Rancourt-not-Churchill hair-splitting.

Just come out and tell us which sorts of academic freedom are legitimate and which are not, and stop pussyfooting...by which I mean Fish's position on Columbia's bringing Mahmoud Ahmadinejad to speak: the University administrator is beyond politics.

This is a total fallacy. Academic positions are already constructed as political, whether you like it or not. Teach engineering? To what end? To build more and better highway off-ramps? OK, or statistics -- you know how much blood has been shed over sampling methods and the census? What about the relationship of calculus to ballistic missiles? Or the complicity of art in legitimating a culture of plunder consumption? See how quickly we hit the "minefield" of ethical decision-making -- which is, in a democracy, politics itself?

See also, and I'm speaking to you Stanley, how deferring the ethical point of contact onto the decision to act ethically in opposition to academic standards negates the difference between good and bad acts? If the standard for a person's actions is not "Does this promote the good life?" but "Is this covered in the provost's integrity manual?" one can act inethically and legally at the same time.

Impeach Bybee, but fire John Yoo too.
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If only Lil Chuckie had worked for Blackwater...

Charles Taylor, former president of Liberia, founder of the Demon Forces (officially referred to as the Anti-Terrorism Unit) is in the Hague. His son Chuckie McArthur Emmanuel, born in Boston, in in Miami facing prosecution under 18 USC 2340A, the extraterritorial torture statute. In Liberia in the late 90s,

Mr. Emmanuel selected and shot [three men] in the heads [sic]. He then ordered their bodies to be dragged away and displayed two of the heads at the checkpoint posts,

you know, among other counter-terrorist-spring-break activities...

Q: Is his defense attorney smart enough to make use of exemptions to US torture law to get Chuckie off?

(Chuckie's trial in the US, btw, might have been mooted by extraordinary rendition; can't we just call this guy a terrorist and ship his ass to Syria and pull out his fingernails?)

I mean, it's tricky, but this is what the guy is paid for. It all hinges on his status. Emmanuel, clearly considers himself an anti-terrorist operative. It's clear that the USG doesn't want to deport/extradict him, so there's no real loss by his claiming to be a paramilitary fighter, or a civilian contractor working for the Liberian (i.e., his pop's) army. At the time of the atrocities, the nearest thing governing the actions of American civilian contractors was MEJA (Military Extraterritorial Jurisdiction Act, 2000), which covers any American employed overseas by Department of Defense. Commit a felony, you're tried in the US. There were, until last year, holes:

The holes in MEJA became especially apparent during the Abu Ghraib scandal of 2004, when a civilian interrogator from Titan Corporation and a civilian interpreter from CACI International faced no punishment, despite their implication in the official report.31 These civilians were technically working for the US Department of the Interior, rather than the DOD, thus shielding them from MEJA’s reach. Their military colleagues had no such protection from courts-martial, however.

So, to rephrase the Q: Is there light between being an American torturer abroad and being an American civilian contractor not employed by DoD?
And, Q: Since we've spent so much time cobbling ways (way, way, way, way, way, way) for non-soldier torturers to escape prosecution by a "host country," or indeed, by anyone, where's the sympathy for the Demon?
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Flash!!

WASHINGTON -- Jack Bauer, the fictional television character, in an appearance before the House Oversight and Government Reform Committee, defended the necessity of torture to success in the war on terror groups, even as the Bush administration moved to pardon him and quash his testimony.

Bauer was disarmingly candid with the committee. When the Chair, Rep. Henry Waxman (D-CA), opened the proceedings by lambasting Bauer's contempt for the rule of law, Bauer responded, "All that is true, Congressman. I violated the DTA, the MCA, the Torture statutes, the Convention Against Torture, the Universal Declaration of Human Rights, the European Declaration of the Rights of the Child, and the Mann Act [...]

"In a single 24-hour period, I killed seven men, one woman, and a dog; kidnapped 5 other people; shaved, electrocuted, interrogated and released 12 other people. During this period I revealed an attempt to stage a military coup in Hawaii; I assassinated the Vice President; I saved the President and the Speaker of the House; I hijacked a Capitol tour bus, and found the remains of the bomb that brought down Robert F. Kennedy Jr.'s plane."

Rep. Dennis Kucinich (D-OH) quickly countered, "You are clearly a man who believes himself to be above the laws that govern human relationships." Bauer's reply: "That's not all, sir. I am also beyond the laws that govern physics." To a stunned audience, Bauer simply opined, "I can bend time with my mind."

The administration had initially sought to restrict the scope of Bauer's testimony, then denied access to him as a matter of executive privilege, until Waxman and committee Democrats were compelled to subpoena him. Yesterday, the administration moved to distance itself from Bauer. "This is a Tom-and-Jerry hearing. Jack Bauer was a low-level freelance operator requesting limited access to enhanced techniques, who's now selling his story to FOX for millions of dollars."

Shortly after the hearing, Bauer was indicted at the International Criminal Tribunal for Broadcast Programming after judges at the Hague viewed the 5-disc first season of 24. "No international body claiming to govern the world's fantasies would dare stand idly by while men such as Herr Bauer wreck havoc on our institutions," said a three-member panel of justices.

A full presidential pardon is expected to be issued later today. Such a measure would prove conclusively that Jack Bauer exists, though it would obscure just what exactly his role was in crafting administration interrogation policy.

The question of Bauer's culpability in defining, enacting and -- as his critics point out -- hyperextending that policy, from Guantanamo to Bagram, may be moot. Yesterday evening, Bauer was sprayed with the nerve agent, sarin, and was abducted by rogue elements of the Chinese military. His precise whereabouts are unknown.

Potatohead AG Mukasey takes on the Supremes...

Seriously Mike, I thought you were listening when the Supremes hit you with Boumediene. Habeas, bitch! It's up there in the executive summary:

Because the [Detainee Treatment Act's] procedures for reviewing detainees' status are not an adequate and effective substitute for the habeas writ, [the Military Commissions Act] operates as an unconstitutional suspension of the writ.

The permission the D.C. Circuit Court gave you to operate has been reversed and remanded. These guys are going into the federal system, or they're getting shipped back to Yemen, one.

This is what I thought anyway, until the Hamdan trial finally opened, "ending" the story of his probably illegitimate detention, fruitless interrogation and needless maltreatment. I thought we were done here.

So did Mukasey. Why shut the Commissions down for a 5-4 vote? As every Bushite has said since Boumediene, "it was a very divided decision." I mean, yes, it was divided once, into the Yea and the Nay, as all decisions are, and you lost. The A's lost the other day in New York on a walk-off hit-by-pitch, 4-3; do I now get to claim victory, saying, "it was a narrow outcome, very divided, went 12 innings." Do I get to mark that 4-3 embarrassment in the Wins column?

Foolish pride...I had ignored the pattern of judgement and judicial leg-cutting that continues to operate. The court revealed that detainees in Cuba had habeas in Rasul v. Bush. The administration had Congress then clumsily strip detainees of habeas in the Detainee Treatment Act (2005). The Supremes nullified that part of DTA; Congress wrote it back in in the MCA (2006). Now, having been smacked down, Mukasey will ignore Boumediene and have Congress try something new.

Just as the DTA and MCA were ostensibly about preventing torture and guaranteeing access to lawyers, the new shit will have some ostensibly noble goal. I don't think Mukasey's vision of "reaffirmation" applies. Some quasi-pagan public cleansing ritual, elevating Bush era crimes to the level of national religion? Not sure you want that exactly, Mike.

I am suggesting that it would do all of us good to have that principle reaffirmed [...] not that the principle itself is in doubt.

...but that the People are of dubious fiber, Chairman?

Well, since I'm already convinced that this is Guantanamo's endgame, that you're just running out the clock to avoid giving an inch of legal ground, and that you look and act like a stunned cave-toad, shocked to find a world of light and air every time you pop out of your little hole...I say bring it on...
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Just a thought...

What exactly are we going to do with all our detainees? That is: you can't just fake-drown a man for months and years on end and then send him back with a free plane ticket and a thanks for the memories post card and expect that that aggression will stand.

Why is this question important? The editorial board of the Dark Steer Report recommend viewing a BBC documentary by the name of The Power of Nightmares. It's a rather interesting glimpse into the structures and history underlying the NeoCon and Al Qaeda movements. Incomplete, perhaps, but enough to introduce one to Sayyid Qutb, who is the reason behind this post.

Our concern, dude, is that whatever horrors we may have inflicted on innocent men and women may be visited tenfold upon our heads. Check the story of Qutb and see that he was loud and obnoxious before imprisonment, but it was the torture that radicalized him.

Now we've got pens and planes and prisons full of swarthy individuals of varying degrees of innocense and we've mock-drowned and beaten and stress-positioned and sleep-deprived them for quite some time now. And now they may get access to the courts? What happens to these men when they go free?

Roberts insane, Part 2: Court feeds fresh meat to these vulgar brutes...

Part 1

Remember when the Protect America Act was allowed to lapse and President Bush predicted imminent terrorist attacks if Verizon couldn't build illegal wiretap aqueducts? Once again, there's huffing about the inevitable violence that will ensue when Gitmo detainees get habeas rights. Nino, for instance predicts, "devastating" and "disastrous consequences," and gave us an instant classic:

"It will almost certainly cause more Americans to be killed."

So what's up with the gift given along with the whipping? The 9-0 ruling in another combined detainee case holds that Omar and Munaf -- American-Jordanian and American-Iraqi dual citizens -- can challenge their detention by the American military, but cannot challenge their transfer to another country, in this case Iraq.

Shouldn't we have expected Roberts to argue against granting the men habeas at all, since the terrorist threat posed by them is so grave? No, they're citizens. So they have to be denied the right to petition their government for wholly other reasons, viz.:

"Iraq has a sovereign right to prosecute them for crimes committed on its soil, even if its criminal process does not come with all the rights guaranteed by the Constitution."

Again, there's a nested issue. The Court has essentially legitimized extraordinary rendition, opened up a defense of the CIA's secret prisons, and taken the first step in denying challenges to repatriation to countries that practice torture.

Allowing a detainee to challenge his capture is moot once he's been transferred. The message the court has sent, by saying that a habeas hearing for a transferree cannot result in review of his transfer, is "export these guys quicker!"

No-challenge transfers can work in reverse as well. Imagine Muhammad Rahim challenges his detention at Guantanamo on two grounds: one, he wants a habeas hearing in federal court; two, the CIA tortured him in Afghanistan in order to get the confession that sent him to the tribunals at Gitmo.

According to yesterday's decisions, Rahim would win the former point, but lose the latter, as surely the CIA's transfer is essentially a military transfer to a third country. If the transfer is legal, whatever happens at the other end is irrelevant. Disappeared.

If military transfers are unimpeachable, current detainees cannot ask not to be repatriated, even if they face torture at home. So quick folks, get Abdul Rahman back to Tunisia before the D. C. Circuit holds a habeas hearing!

Finally, the no-challenge military transfers closely parallel INS procedures for deporting illegal immigrants. Like something out of Bagram or Bucharest. Dark Steer awaits the day when this decision is cited to permit INS to drug deportees before shipment...what happens in Bagram stays in Bagram...

"Pre-flight cocktails" for everyone!
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CIA does backfill; so do I!

a brainiac with a cranium packed...
...actually there's no maniac and no uranium here, it turns out. The Inqy woke me up this morning with a for-real terror dream. Syria was making the bomb! No mention of skepticism from David Albright or Mohammed el-Baradei. A senior admin official saying the reactor was just a click away! A grainy ISIS photo from space! Strangely, no mention of yesterday's videotape.

Convincing! So here comes WaPo to rain on the parade: another senior admin official says nobody thought this was legitimate information:

At the same time, a senior U.S. official acknowledged that the U.S. intelligence experts had formally assigned only "low confidence" to the possibility that the site was at the heart of a Syrian nuclear weapons program, because it lacked basic components such as a reprocessing plant.

Since we can't both be right here, and since Israel seems to want a land-for-peace deal with Assad, the September bombing and the current flurry of flaky data are clearly functions of inter-agency squabbling, no? Senior intelligence officials in favor of preemptive strikes against fantasy targets are undercutting their colleagues, indeed undercutting Israeli foreign policy. Clearly, the original story is backwards: what the CIA's presentation to Congress suggests is that in September, we got the satellite pics to Israel and leaned on them to make a surgical strike. What does "they asked for no green light" mean? It means preemption was our idea.

So, predictions are easy to come by at this point. Within the month, let's say, Olmert and Assad will sign an historic peace agreement, and Tzipi Livni will make plain that Israel didn't want to bomb that patch of desert, but Bushites bullied Israel into it.

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Mad Yoo

In the interest of finally catching up on things I've meant to talk about, I'm just going to print an email I sent to the Inquirer in January. John Yoo had just been sued by Jose Padilla's lawyers for his work at the Office of Legal Counsel. On 15 January 2008, the Inquirer ran his apologia. Reading it was like smoking crack. There's not really anything in this email that isn't obvious to everyone, but it's a start.

Sir:

1) Yoo's arguments for the plenary power of the executive during time of war fail to account for the interminable nature of the so-called war on terror. Permanent presidential rule by fiat represents the end of democracy, and the inception of a police state. Thus the animus against Yoo. If this is a democracy, we can only ask Yoo's defenders, in what sense is the global war on terror finite? And the corollary, in what ways are the president's war powers circumscribed?

2) Yoo's relationship to Padilla has less to do with his arrest than with his detention. Yoo is no Jack Bauer. As the primary author of the now-infamous "Torture Memo" written in 2002 in the Office of Legal Counsel and exposed in May 2004, he argues that interrogation methods tantamount to torture are legal (at best, not illegal), that enemy combatants are not subject to Geneva protections, that only the executive shall determine what does and does not constitute torture, and that the executive is justified in keeping the entire process shrouded in secrecy.

Apologists need to make a case. Does torture work? Does torture work quickly? Are other means of interrogating terror suspects invalid? If so, why? Is torture's efficacy and necessity profound enough to trump Eighth Amendment protections against it? How can Congress or the people legitimize a secret war? How can the executive branch write the rules for its own behavior?

No one defending Yoo will touch these concerns with a ten-foot pole, content instead to cry "lawfare."

3) Since Yoo's resignation, every one of his positions has been picked apart in Congress and the courts. The Supreme Court has ruled that indefinite detention without trial is unconstitutional, even when the detainee is a foreign-born "enemy combatant." The practice of torture has been swatted back everywhere from the Detainee Treatment Act to the Army field manual.

All of which begs the question, what extralegal or quasi-legal acts is Yoo currently defending? If we take the president at his word when he says, "We do not torture," then Yoo's spirited assertion of single-handedly crafting a victory strategy in the GWOT falls flat. If we don't need torture anymore to beat Al-Qaeda, why did we need it in the first place?

4) The operative word may not be lawfare, but avoision in Yoo's case. His work at OLC was the foremost instance of sneaking illegality in under a cloak of legalisms. His defenders need to square his charges against Padilla with the Bush adminstration's ongoing use of the law for political ends.

Alternately, if this isn't a crusade to deny terrorist fellow-travelers the use of a legal arsenal, but is merely typical conservative angst over the pressing need for tort reform, then we're just going to have to agree to disagree. (For my part, I see a right to sue anybody anywhere enshrined in the Fifth, Seventh and Fourteenth Amendments.)

But the question of magnitude makes this no ordinary suit. Yoo's actions affect all U.S. citizens, and everyone the United States suspects of being a terrorist sympathizer; depending on your definition, that could amount to one-fifth of the entire world. We're not talking about a cup of coffee to the pants; if actions such as Yoo's are not repudiated, our fundamental rights are forfeit, and human rights takes another body blow.

5) Finally, I am actually on Yoo's side. Padilla's lawyers have turned a matter of obviously unconstitutional behavior into an open political question. They've given the right something to sink its teeth into. By suing a man who could only be loved by far-right law wonks, and who most of us barely recall, Padilla's lawyers have enabled their position to be caricatured as just one opinion among many -- some red some blue all valid -- when it is a matter of redressing transgressions. Sue the president, the DoJ and the OLC instead. Picking on subordinates is craven. The president is the officer with a constitutional duty to discharge; he was either derelict in his management of the executive branch, or was brazenly flouting the law. Sue him.

In fact, this is the only avenue of defense likely to yield a positive result for Professor Yoo. Should he express interest in retaining my services, please forward my email to him.

Yours,
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