Rahmbo talks:

STEPHANOPOLOUS: The President has ruled out prosecutions of CIA officials who believed they were following the law. Does he believe the officials who devised the policies should be immune from prosecution? . . . [W]hat about those who devised the policies?

EMANUEL: [President Obama] believes that they . . . should not be prosecuted either. And it's not the place that we go -- as he said in that letter, and I really recommend that people look at that full statement. Not the letter, the statement. In that second paragraph: This is not a time for retribution. It's a time for reflection. It is not a time to use our energy and our time in looking back, and in a sense of anger and retribution. . . .

Um, is it ok if we talk about it President Obama? Personally, as I have written before, I can accept this policy IF the President supports a full investigation via a Truth and Reconciliation Commission (even Fred Hiatt supports this idea.) That seems to not be in the cards.

Speaking for me only

Yesterday, implicated Bush Administration officials Michael Mukasey and Michael Hayden decried the release of the Bush Administration torture memos:

Proponents of the release have argued that the techniques . . . cost us more in the coin of world opinion than they were worth. [This] claim [does not] survive[] scrutiny.

While Mukasey and Hayden do not explain why it does not survive scrutiny, they are surprisingly countered by torture advocate David Rivkin:

Even Fred Hiatt wants investigations of the Bush Administration's torture activities:

[T]he decision to forgo prosecutions should not prevent -- and perhaps should even encourage -- further investigation about the circumstances that gave rise to torture. . . . More light needs to be shed on how decisions were made and why. And more information is needed on who in the Bush administration made the ultimate decision to authorize the use of techniques that have long been considered torture and a violation of domestic and international legal strictures. A commission like the one that investigated the Sept. 11, 2001, terrorist attacks would likely provide the best vehicle for such an exploration.

At a bare minimum, the Obama Administration should support Senator Patrick Leahy's Truth Commission idea.

Speaking for me only

Senator Leahy's proposal:

We need to get to the bottom of what happened -- and why -- so we make sure it never happens again. One path to that goal would be a reconciliation process and truth commission. . . . President Obama is right that we cannot afford extreme partisanship and debilitating divisions. . . . Rather than vengeance, we need a fair-minded pursuit of what actually happened. Sometimes the best way to move forward is getting to the truth, finding out what happened, so we can make sure it does not happen again. . . We need to come to a shared understanding of the failures of the recent past. It is something to be considered.

I do not know if I agree with this approach, but given the statements today from President Obama and Attorney General Holder, it is something to be considered.

Speaking for me only

The Department of Justice will today release certain memos issued by the Office of Legal Counsel between 2002 and 2005 as part of an ongoing court case. These memos speak to techniques that were used in the interrogation of terrorism suspects during that period, and their release is required by the rule of law.

[MORE . . .]

I want to underscore one vital point about this controversy that is continuously overlooked and will be undoubtedly distorted today in the event of non-disclosure: these documents are not intelligence documents. They are legal documents and, more specifically, they constitute what can only be described as secret law under which the U.S. has been governed during the Bush era. Thus, the question posed by the release of these OLC memos is not whether Obama will release to the public classified intelligence programs. The question is whether he will release to the public the legal doctrines under which the U.S. Government conducted itself regarding interrogation techniques he claims are no longer used.

Will President Obama have secret laws on torture? That's the issue today.

Speaking for me only

The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews. . . . The intelligence officials said the problems had grown out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers, and the challenges posed by enacting a new framework for collecting intelligence on terrorism and spying suspects.

(Emphasis supplied.) Well nobody could have predicted it except everyone who predicted it (See Glenn Greenwald and Digby.) But let's face it, Barack Obama, Nancy Pelosi and all the the triangulators of your civil liberties knew exactly what they were doing. Of course, the stupidity of it all is even taking the crass and cynical view - just looking at the politics - they were wrong:

Greg Sargent asks the question:

The legislation — which represented the consensus view of the Democratic Party a year ago — would drastically limit use of the state secrets privilege, which is the invocation of national security to justify government secrecy and get anti-government lawsuits tossed out of court. The bill was reintroduced this year by Senators Russ Feingold, Patrick Leahy, and Ted Kennedy in response to Obama’s use of the legal tool, with Feingold calling the need for the legislation “urgent.”

. . . In response to my questions, a White House spokesperson declined to say whether the Obama administration would support the legislation.

Good work by Sargent.

Speaking for me only

I brought up this issue last month, and Digby and Greenwald revisit it, in the context of the Bagram detainee facility - the question of what does Marty Lederman, now in the Obama Office of Legal Counsel, think about the arguments being made by the Obama Justice Department. On Bagram, Lederman wrote in the past:

Would habeas rights extend to alien detainees held in foreign locations other than GTMO? That is to say, can the military avoid the impact of Boumediene simply by detaining or transferring all alleged alien enemy combatants to a different facility, such as at Bagram?

Short answer: No. . . .

MORE . . .

In this diary criticizing Glenn Greenwald, the diarist argues that this passage in the Obama appeal (PDF) makes the decision to appeal understandable:

The Obama Administration will take an appeal from the district court ruling granting Bagram detainees the right to a habeas hearing. This reaction sums it up:

Tina Foster, the executive director of the International Justice Network, which is representing the detainees, condemned the decision in a statement.

“Though he has made many promises regarding the need for our country to rejoin the world community of nations, by filing this appeal, President Obama has taken on the defense of one of the Bush administration’s unlawful policies founded on nothing more than the idea that might makes right,” she said.

Though these detainees are held in a battlezone, the argument is they were not captured in a battle zone. That argument should be tested in a court of law.

Speaking for me only

Via Glenn Greenwald, Senator Russ Feingold (D-WI) says:

I am troubled that once again the Obama administration has decided to invoke the state secrets privilege in a case challenging the previous administration’s alleged misconduct. The Obama administration’s action, on top of Congress’s mistaken decision last year to give immunity to the telecommunications companies that allegedly participated in the warrantless wiretapping program, will make it even harder for courts to rule on the legality of that program [the program is still ongoing]. . . . [T]here is an urgent need for legislation to give better guidance to the courts on how to handle assertions of the state secrets privilege. The American people must be able to have confidence that the privilege is not being used to shield government misconduct. That is why I am working with Senators Leahy, Specter, and others to pass the State Secrets Protection Act as soon as possible.