My Dog Ate Them: 92 Tapes of CIA Interrogations "Missing"

The CIA destroyed 92 tapes of "harsh interrogations" and confinement of high-level Al-Qaeda members, according to media accounts. If so much of the reliable evidence has been destroyed, this could explain, in part, why DOJ will not prosecute anyone for torture. For those individuals who doubted that any torture occurred, why would the CIA destroy tapes of the interrogations?

From the Washington Post:

The CIA got rid of 92 videotapes depicting the harsh interrogations and confinement of "high value" al-Qaeda suspects, government lawyers disclosed yesterday, as a long-running criminal probe of the tapes' destruction inched toward a conclusion that is not expected to result in charges against CIA operations employees, three sources said.

Then-directorate of operations chief Jose A. Rodriguez Jr. gave an order to destroy the recordings in November 2005, as scrutiny of the CIA and its treatment of terrorism suspects intensified. The agency's then-Director Michael V. Hayden argued that the tapes posed "a serious security risk" because they contained the identities of CIA participants in al-Qaeda interrogations. . . .

"The sheer number of tapes at issue demonstrates that this destruction was not an accident," said Amrit Singh, a staff lawyer with the American Civil Liberties Union. "There was a deliberate attempt to destroy evidence of what we believe to be illegal conduct."

Singh said that the ACLU had secured a court order in September 2004, more
than a year before the tapes were eradicated, directing the agency to preserve
materials related to the interrogation of prisoners overseas. "It's about time the CIA was held accountable for its flagrant violation of the law," she said.

CIA officials rejected the assertion that the agency had sought to hide evidence from investigators and said they had cooperated fully with the Justice Department investigation.

Note: The CIA's excuse is highly implausible. The "security risk," if any, existed when the CIA began recording interrogations. Apparently, the agency suddenly discovered this risk once reports of torture started getting attention in the media. But the CIA undoubtedly knows how to safeguard, rather than destroy, sensitive information.

Furthermore, if "harsh interrogations" are legal, then defend them. Defending, instead, the destruction of evidence related to potentially criminal behavior is a terrible alternative. It completely undermines the CIA's position on the legality of its interrogation techniques, and it legitimizes the obstruction of justice.

Oooh, Drama: Blagojevich Gets Tell-All Book Deal

From CBSNews.Com:

Rod Blagojevich, the first U.S. governor in more than 20 years to be removed from office by impeachment, signed a deal Monday to write a book "exposing the dark side of politics," his publicist said.

Blagojevich signed a "six-figure" deal to write a book for Phoenix Books, to be released in October, publicist Glenn Selig said in a news release.

Blagojevich, ousted after his arrest by federal authorities on corruption charges that include allegations he tried to sell President Barack Obama's vacant U.S. Senate seat, plans to explain how he selected Obama's successor. Blagojevich denies any wrongdoing.

"He also plans on exposing the dark side of politics that he witnessed in both the state and national level," according to Selig's release.

Well, this could be interesting. I'm sure there's a lot to expose.

Legal Showdown Looming Over Don't Ask, Don't Tell: What Will the Obama Administration Do?

Professor Nan Hunter has an interesting post on her blog, Hunter of Justice, which discusses a pending LGBT rights case. The case involves a challenge to the military's discharge of a woman who engaged in "homosexual conduct." The Court of Appeals for the Ninth Circuit held that the military could not discharge the individual unless it showed that "her conduct hurt morale or jeopardized another government interest." The case will likely present the first opportunity for the Obama administration to make policy on LGBT rights issues.

As Hunter observes: "[T]he Air Force has two choices. It can either let the case be remanded to the trial court, where proceedings will start again, or it can seek to stop that from happening by filing a petition for certiorari in the U.S. Supreme Court."

Although DOJ must defend the government, "DOJ has room to do the right thing. The decision in Witt did not declare the Don't Ask Don't Tell statute invalid. Instead, Major Witt's ACLU lawyers sought to put the Defense Department to the test of actually proving that her presence was harmful, rather than being able to simply assume that to be the case."

My Take
DOJ lawyers could petition the Supreme Court to invalidate the Ninth Circuit's "hurt morale or jeopardized another government interest" test as too strenuous and invasive of military autonomy. If so, the Obama administration's posture on LGBT issues will replicate the arguments of previous administrations that have demanded (and obtained) deference in this area of law.

Because so much of what DOJ does is driven by litigation strategy and a desire to win pending and future cases, I can easily imagine the government seeking high court review. If the government does not challenge the standard in the Supreme Court and does not settle or drop the case, then DOJ must return to the District Court and demonstrate that homosexual conduct harms or jeopardizes the military. This argument, however, would provoke very passionate criticism.

Whatever path the government pursues, I agree with Hunter; this case will help determine "whether the Obama Justice Department will analyze lgbt rights cases through a different lens than their predecessors." Obama has promised to seek the repeal of Don't Ask Don't Tell, but he says that the military should "study" the issue first. This case may require his administration to take a concrete position on the subject earlier than he had anticipated.

On My Reading List - Judicial Power and National Politics: Courts and Gender in the Religious-Secular Conflict in Israel

A growing body of legal and political science scholarship attempts to demonstrate that courts operate in a political and cultural context. In the United States, this work has examined how evolving international and domestic politics have influenced judicial opinions in the context of civil rights, economic regulation, and other important issues.

This important scholarship places judicial opinions in a broader social context, and it provides a framework for understanding court doctrine as a product of legislative, executive, and social movement activity. For that reason, I am excited to find the following recent publication: Judicial Power and National Politics: Courts and Gender in the Religious-Secular Conflict in Israel.

Synopsis
Patricia J. Woods examines a controversial issue in the politics of many countries around the world: the increasing role that courts and justices have played in deeply charged political battles. Through an extensive case study of the religious-secular conflict in Israel, she argues that the most important determining factor explaining when, why, and how national courts enter into the world of divisive politics is found in the intellectual or judicial communities with whom justices live, work, and think about the law on a daily basis. The interaction among members of this community, Woods maintains, is an organic, sociological process of intellectual exchange that over time culminates in new legal norms that may, through court cases, become binding legal principles. Given the right conditions--electoral democracy, basic judicial independence, and some institutional constraints--courts may use these new legal norms as the basis for a jurisprudence that justifies hearing controversial cases and allows for creative answers to major issues of national political contention.

Advanced Praise
"This well-written book makes an important contribution by pushing the analysis of the controversies surrounding judicial intervention/activism to take ideas seriously. It provides a very persuasive account of Israel's High Court of Justice's involvement in religious issues and the key role of the judicial community in precipitating that involvement. At the same time, Woods attends to the roles of institutional factors and social movements in facilitating the controversial rights actions/decisions of the HCJ. This book is a must read for scholars of law and politics."

-- Austin Sarat, Amherst College

"The author's notion of an extended judicial community of judges, academic lawyers, and cause lawyers is a major move forward in the `new institutionalism' in the study of law and courts."

-- Martin Shapiro, Boalt Law School, University of California at Berkeley

Health Care Reform: Some Consumer Advocates Criticize Kennedy's Private Meetings With Industry Lobbyists

Recently, the New York Times reported that since last year Senator Kennedy has conducted invitation-only private meetings with lobbyists and representatives of insurance and pharmaceutical companies, businesses, labor, and retirees in order to strike a consensus on health care reform. According to the New York Times:

The 20 people who regularly attend the meetings on Capitol Hill include lobbyists for AARP, Aetna, the A.F.L.-C.I.O., the American Cancer Society, the American Medical Association, America’s Health Insurance Plans, the Business Roundtable, Easter Seals, the National Federation of Independent Business, the Pharmaceutical Research and Manufacturers of America, and the United States Chamber of Commerce.

Because Kennedy chairs the Senate Committee on Health, Education, Labor and Pensions, he will have a significant voice in health care reform.

All of the Democratic presidential candidates pledged to deliver health care reform, and President Obama's proposed budget commits $634 billion to this purpose. Obama, however, promised to host public and transparent meetings (potentially aired by C-SPAN), and he has strongly condemned the influence of lobbyists in Washington. Despite Obama's critical stances toward lobbyists, Kennedy's "workhorse group" could potentially reach a consensus that ultimately shapes the content health care reform.

Some Care Providers and Consumer Groups Cry "Foul"
The consumer advocacy group Public Citizen has criticized the secret meetings for lacking inclusiveness. Particular, the group argues that advocates of a "single-payer" system have not been invited to the discussions. A joint statement prepared by Sydney Wolfe and James Floyd, two medical doctors who are researchers for the group, urges President Obama to consider input from advocates of a single-payer system:

The president wants this process to be open and transparent, with the goal of achieving universal coverage. However, groups representing physicians, nurses, and consumers who advocate for a single-payer system of national health insurance have thus far been excluded from the summit.

Under a single-payer system, doctors, hospitals and other health care providers are paid from a single fund administered by the government. The system would eliminate the wasteful spending and high administrative costs of private insurance, saving almost $400 billion annually. This savings is enough to provide every American with the same high-quality care, including those who currently have insurance but still cannot afford medications and treatment.

Floyd also wrote a column on the subject for the Huffington Post. In that article, Floyd observes that representatives from organizations such as "Physicians for a National Health Program, the California Nurses Association, Healthcare-Now," and other groups that favor a single-payer system are "notably absent" from the list of attendees at Kennedy's private meetings.

My Take
Advocates for a single-payer system believe that the nation can only afford universal coverage by eliminating the costs associated with privately run insurance companies. Clearly this idea will provoke very heated debates, because it basically threatens to eliminate insurance companies. I cannot see this idea gaining traction because Obama himself has not advocated the position and because insurance companies have a powerful lobby. But the idea is extraordinarily similar to Obama's assertion that the government should eliminate private companies that administer government-backed student loans.

All relevant parties should negotiate and study a matter as significant and expensive as health care reform. In order to reach an appropriate outcome, all voices must have a seat at the table (to borrow from Obama's own words). Instead, it appears that all voices except for single-payer advocates (and those who do not want reform at all) are present at the moment.

Of course, things are in a preliminary stage, but budget talks will soon commence, and the issue of health care reform will take center stage following the allocation of funds. In order to ensure the best outcome, the process should include additional voices and become open and transparent; otherwise, the process will give legitimacy to critics who fear that a "backdoor deal" among powerful interests will decide the issue.

Silly Me: Opposition to Earmarks Is "Last Year's Business"

Well, I guess I need to learn the importance of "living in the now." Recently, I joined a chorus of people who criticized the inclusion of billions of dollars of earmarks in the proposed budget. Although politicians from both parties condemned earmarks during the 2008 election, politicians from both parties have fallen off the wagon and inserted nearly 9000 earmarks in the pending budget.

Today, the Obama administration responded to criticism surrounding the earmarks and to demands that he veto the budget unless Congress deletes them. Peter Orszag, the White House Budget Director says that the President will not cause a standoff over earmarks because the budget needs to get through Congress quickly: “This is last year’s business . . . We just need to move on.” White House Chief of Staff Rahm Emanuel (who sponsored several earmarks in the proposed budget) echoed Orszag's statement that the earmark-laden budget is "last year's" issue.

Even though he dismissed an invitation to squabble over "old" matters, Orszag indicated that the issue of earmarks could come up again (presumably once Congress has already passed the budget):

"We're going to be working with the Congress. We want to make sure that earmarks are reduced, and they're also transparent. We're going to work with the Congress on a set of reforms to achieve those . . . ."

O.k., then: Next issue!

No Kicking and Screaming Yet. . .

[Another recent post: Silly Me: Opposition to Earmarks Is "Last Year's Business" ]

Washington has its traditions just like any other city. But unlike other places, Washington is the home of the second-oldest profession: politics. This makes the city impervious to demands for change -- especially change that strikes at the core of its deal-based political culture. And while the 2008 election promised "change" at all levels, signs of "business as usual" remain abundant.

Mo' Money, Mo' Problems!
Earmarks
Last week, the House passed an omnibus budget that contains billions of dollars in earmarks proposed by lawmakers in both parties. Several members of the Obama administration, including Obama himself, have sponsored earmarks which appear in the proposed budget.

During his presidential campaign, however, Obama routinely condemned earmarks. His opposition to earmarks led to the media's obsession with Alaska's so-called "Bridge to Nowhere," which Democrats said proved that Sarah Palin engaged in double-talk on fiscal conservatism. Recently, after fiscal watchdogs began publicizing the volume of earmarks in the proposed budget, Obama scrubbed his name from a multi-million dollar earmark that previously designated him as a co-sponsor. The earmarks, however, remain in the bill. Members of Obama's staff have defended the inclusion of earmarks in the budget on the grounds that the concern over pork spending was "last year's business."

Lobbyists
Lobbyists are another staple of Washington's political culture. Obama campaigned on a pronounced anti-lobbying theme, and after he was elected, he immediately implemented rules that prohibit former lobbyists who join the government from shaping policy on issues related to their previous work. But Obama immediately ignored his own rules in order to appoint William Lynn as Assistant Secretary of Defense.

He was also presumably set to waive the rule (or at least ignore the spirit behind it) for Tom Daschle, his original pick to head the Department of Health and Human Services. Although Daschle ultimately withdrew from consideration over controversy surrounding unpaid taxes, some critics also complained that he had earned millions of dollars representing and providing advice to insurance companies and that he was a trustee of the Mayo Clinic. Daschle, however, was not formally registered as a "lobbyist."

In addition, as a campaigner, Obama promised transparency and accountability on health care reform, but lobbyists for insurance companies and other groups have held private meetings with Senator Ted Kennedy to discuss the issue before the public debates. According to the L.A. Times:

As a presidential candidate, Barack Obama said that in overhauling healthcare he would make the negotiations public, and even invite C-SPAN to air the talks on television.

Yet in recent months, lobbyists and health insurance company representatives have been meeting behind closed doors -- with the White House's knowledge -- in the office of Sen. Edward M. Kennedy (D-Mass.) to debate options for a new health system.

As Chair of the Senate Committee on Health, Education, Labor and Pensions, Kennedy will have a large role in shaping health care reform. As usual, lobbyists are directing their attention to the appropriate persons.

Improving "Our" Image in the World
Obama's supporters promised that his election would repair the image of the United States in the world community, which, they contend, Bush's militaristic practices and abusive antiterriorism policies severely damaged. A combination of legal strategy, politics and policy considerations, however, have caused Obama to retain many of the same Bush-era practices or legal positions that liberals believe injured the country' reputation. These policies include rendition, blanket usage of the state secrets privilege, the openness to "harsh" interrogation methods "if necessary," support of indefinite detention of Al Qaeda suspects, and the right to bypass federal courts to prosecute certain detainees.

Moving or Closing Guantanamo Bay?
Although Obama promised substantial changes in these areas, to date, the differences relate more to form, rather than substance. For example, although Obama has ordered the closure of the Guantanamo Bay detention center, the Navy has produced a study, at the president's request, which concludes that the facility complies with the Geneva Conventions. Although some human rights advocates condemned the Navy's report, Attorney General Eric Holder subsequently visited the facility and offered favorable reviews as well.

Obama promised to close Guantanamo Bay in response to sharp criticism among domestic and international human rights activists who argued that the Bush administration unlawfully detained captives, denied them access to courts, and subjected them to torture. The Supreme Court concluded that detainees at the facility had a right to judicial review of their detention and, subsequently, that procedural deficiencies in military commissions authorized by Congress made the commissions an impermissible alternative to federal courts.

Although the President has ordered the closure of the facility, the government will likely send many present and future detainees to Bagram Air Force Base in Afghanistan (and to other locations). The Obama administration, following Bush's lead, contends that detainees at Bagram do not qualify for access to the federal courts. Also, Holder and Solicitor General Elena Kagan stated during their confirmation hearings that the United States can indefinitely detain suspected members of Al Qaeda (whether or not they were caught on the battlefield, according to Kagan). If the President acts upon the broad authority his staff claims he possesses, Bagram could easily become the functional equivalent of Guantanamo Bay.

Governing in Prose
During the Democratic Primaries, Senator Hillary Clinton attempted to explain why she believed her "on the ground" approach was better in a president, even though members of the media and millions of Democrats preferred the "excitement," energy, and crowds of Obama's mammoth rallies. Clinton, quoting former New York Governor Mario Cuomo, reminded voters that: "You campaign with poetry, but you govern with prose."

At this point, it is unclear whether even solid prose and policy could alter the power of lobbyists and the impulse for members of Congress to secure earmarks. It is abundantly clear, however, that the wave of excitement that shaped the 2008 election has not transformed Washington into a place that welcomes substantive reform. As Sheila Krumholz, Director of the Center for Responsive Politics, tells the L.A. Times:

"I don't think anyone who is familiar with the way Washington works was under any illusions about the ease in doing this. . . .It's very different to make promises on the campaign stump than it is putting together an administration and running a government. . . . I don't think it's a given that it's possible to change the culture of Washington."

I wholeheartedly agree with Krumholz's assessment. There's an old saying about change-resistant people going into new situations "kicking and screaming." But things look so remarkably the same around Washington that even the most stubborn adherents of the status quo have not even begun preparing either to kick or scream. They are definitely engaging in partisan whining and bickering, but that is so yesterday.

Another recent post: Silly Me: Opposition to Earmarks Is "Last Year's Business"

Correction: Please note that the description of the size of the "earmark" that Obama sponsored has been edited for accuracy.