Hi, this is Jameel Jaffer at the ACLU’s National Security Project. Looking forward to your questions.

Welcome, Jameel — so glad to have you here today.

Wondering what you thought of the Charlie Savage article in the NYTimes today about potential accountability questions for the OLC and other Bush/Cheney lawyers involved in the decision-making on this and their efforts at arguing “good faith” falling so flat?

Also, when do you think we might see more of the still-hidden OLC memos? The last release was likely in response to the Padilla suit against Yoo, but will there be more forthcoming sooner rather than later do you think? I’m hopeful with Dawn Johnson there that we’ll see more transparency, but the recent efforts by DOJ in the Yoo case have me wondering now…

Good afternoon, Mr Jaffer and thanks for joining us today. Generally speaking, what’s your take on the Truth Commission v. Special Prosecutor divide? I hope I don’t incorrectly presume you’re not a “bygones” guy.

Thanks for all your hard work; I’m proud to be a supporter of the ACLU in all its efforts.

Mr. Jaffer, thank you for participating in this question and answer session!

In your opinion, what is the best approach to shed daylight on the crimes of the Bush Administration – a truth commission with general amnesties, Congressional investigation, a bipartisan Congressional Committee? And is the best goal justice? Simply getting the truth told? Criminal convictions? Clearly the goal will guide the answer on methodology…

Good afternoon Jameel and thank you (and Christy) for having this today.

How do we balance the needs of the nation for security and oversight against the moves to “put everything behind us and move forward”?

How do we make the folks who are worried about where the rent or next meal are coming from understand why this is important to them and not just standing up to the “others”?

FYI, Jameel, there is a reply button under each comment — if you click that button it already adds in an automatic reference so folks will know to which comment you are responding. Thought you’d want a heads up on that…

Charlie Savage is one of the reporters who has been following the accountability issue closely, and generally he writes great stuff. I think there are two different ways that the “good faith” issue comes up: first, interrogators and officials who relied on the OLC torture memos may argue that they relied in good faith on those memos; and, second, the OLC lawyers may argue that their legal memos were good faith interpretations of the law. (I believe Brian Tamanaha separated these two strands of the “good faith” argument in a post on Balkinization this morning.) But I think it’s going to be difficult for officials to argue that they relied on these memos “in good faith” — particularly since we know that many of the illegal interrogation methods were being used even before the first memos were written. And it’s going to be difficult for former OLC lawyers to argue that these memos were good faith interpretations of the law, because many of the memos just ignored legal authority that didn’t support their conclusions. Ultimately I don’t think either of the “good faith” arguments is very compelling.

Good afternoon.

First, thanks so much for all your work.
Now, on to the tough question:

In light of the memoranda released last week, and particularly the one drafted by Yoo regarding the military operations superseding (for lack of a better word) the First and Fourth Amendments, does anyone know whether Bush threatened Bill Keller of the NYT into not publishing the warrantless wiretapping story in 2004 prior to the elections and, if so, what was the nature of the conversation and the nature of the threat.

All we seem to know so far is that Bush “appealed to their patriotism”, or some similar mush-talk. I don’t believe that for a minute (like you couldn’t tell from the nature of my question….)

Jamel,
1. There were three investigations into false pre -war intelligence Silberman/Robb, Phase I and Phase II of the Senate Select Committee on Intelligence. Yet not one person, not one person has been held accountable for that false pre-war intelligence .

Maybe I missed something? Was someone held accountable for those Niger Documents?

Why has the false pre-war intelligence and the individuals who created, cherry picked and disseminated this false intelligence been swept under the rug by the Obama administration, congress and the so called progressive blogosphere?

But what do you really think. *G*

Thank your for your time today.

What suggestions do you have for the future – to promote transparency of OLC decisions and to make sure OLC lawyers do not become insulated from accountability to We the People?

I do think we’re going to see more of the OLC memos. Up on our website (aclu.org/olcmemos) We’ve got a chart of the memos that are still secret. And there are dozens of them — memos relating to interrogation, detention, rendition, and surveillance. To anyone who has been following this issue, it’s clear that the Bush administration withheld many of the memos not for legitimate security reasons but for completely illegitimate political reasons — to protect senior officials from accountability, for example. The new administration is unlikely to participate in the suppression of all of these memos — and, as you all know, it has released a handful of the memos already. I’m hoping and expecting to see more of the memos over the next few weeks.

Mr. Jaffer, thank you for your good work, and that of the ACLU. How can we, the unwashed masses stop the behind closed door style of being used by Rove and congress in pursuit of the truth.

Good afternoon, Mr. Jaffer, being a retired Navy Chief and 1000% against torture of any kind against any person or animal, appreciate very much what you are doing. My feelings are that all involved should be prosecuted to the full extent of the law. And if that calls for a trial in the United States and in the world court both, that is fine with me.

Justice and honor must be upheld for our nation to return to the world government and not remain a pariah.

Sincerely

KR Jackson
CPO USN Ret.

Do you think we will be able to see a “paper trail” for these memos, how they evolved, who might have read drafts etc?

Fair enough, CHS, but the point is there is a profound difference between the E-i-C of the NYT being invited in to the WH for a conversation with the President where the E-i-C is asked to please not publish something for reasons a, b, and c, on the one hand, and that same E-i-C being told to show up for a meeting where the President sits by while an aide tells the E-i-C that, according to the law as they interpret it, if they publish the story, they will go to prison until told otherwise.

IIRC, at the time, Padilla’s indefinite incommunicado Executive-whimsy detention in military custody had not been adjudicated – the S.Ct. tossed it on the first go-round b/c of “venue” problems – more to avoid deciding the issue than anything else (IMHO), and the merits of the Executive’s position had not been addressed.

What Keller was told and how makes a big difference….

I am beyond curious to know what’s in the memo that appears to be from James Comey to Ashcroft: Briefing and summary of preliminary LOC conclusions concerning the Terrorist Surveillance Program.

Good afternoon and thank you for your time, Mr. Jameel.
My question is, can we get down to the crux of this and call it treason?

Yes or no?

That’s a helpful distinction between two groups who might employ the “good faith” defense. With regard to the interrogators, would the attempt to use this defense require that these folks had actually been given the OLC opinions?

The access to these OLC opinions was highly restricted, despite the fact (from what we have seen in those that have been released) that they do not contain any intelligence sources and methods or other items that would justify such a classification. Would the fact that the OLC and other elements of the Bush administration kept these opinions so close to the vest have the (ironic) effect of making them less useful for those interrogators who want to claim they were acting in good faith?

Somehow, saying “I was acting in good faith based on a document I never saw” seems as if it would be a less-than-stellar defense strategy.

I’m definitely not a “bygones” guy. I think there’s substantial evidence that senior Bush administration officials authorized torture. There’s certainly enough evidence to warrant a criminal investigation. There’s an ongoing criminal investigation into the CIA’s destruction of interrogation videotapes — through the Freedom of Information Act, incidentally, we recently learned that the CIA destroyed 92 tapes, and that 12 of those tapes showed CIA interrogators using what the CIA euphemistacally called “enhanced interrgation methods” — but the investigation is looking into the destruction of the tapes; it’s not looking into what was depicted on the tapes. There’s plainly enough evidence to warrant a broader criminal investigation.

Are you asking Mr. Jaffer to lay out the mechanics for prosecuting lawbreakers for treason ?

Completely agree with you.

“Section 2 [of the AUMF] authorizes the use of “all necessary and appropriate force” against the designated nations, organizations or person.”

Lawyer folks here at FDL have explained why FISA has and should be used and provides all of the means to wiretap within the rule of law. Is there even a slight possibility that the Bush administration determined that enemies (even U.S. citizens) “all ready in the gates” were able to listen in to internal U.S. communications and would have been able to determine who would be up next for wiretapping via the FISA process?….

Again
Could the FISA process alert those individuals that the Bush administration deemed to be “enemies” to potential wiretapping of those individuals if the FISA process was being followed?

Thank you for visiting with us at FDL, Jameel;

Of the list of 61 memos the ACLU made available to the public on 03/05/09,
38 were listed as still’ secret’.

How many more might you imagine that there are?

Not necessarily mechanics, I would just like to see it labeled for what it is.

Maybe Mr. Jaffer can give an elucidating answer to the underlying question, or start asking it (I don’t think anyone’s been asking what Keller was told and how….).

Thanks for this comment. I think it’s worth noting that many military leaders and interrogators objected to the use of torture. The people who were cheerleaders for torture were generally (though not exclusively) civilian officials who had never been anywhere near an interrogation.

My impression: torturers were already torturing detainees. All Yoo, addington et al did was supply memos to blur the law. Not that that makes any of those lawyers less criminal.

What can you tell us about the individuals from other countries that allegedly conducted some of the “enhanced interrogation techiniques”?

Jameel, how important is it to have torture tapes for evidence before going ahead with trials ?

What I mean is, could these tapes be played in the public domain, which would increase pressure to prosecute ?

Is Congress reluctant to prosecute or are there key players building a case for prosecutions that will result in senior members of the Bush admin. going to jail

Jameel, one question we get frequently is what can folks do to help push better justice forward, to help restore the rule of law and obtain more accountability and transparency? Are their efforts that you’d recommend folks taking or particular issues you see as needing a greater public push or voice at this point?

It’s also worth pointing out that the JAG corps was significantly and deliberately cut out of the policy loop in which decisions on interrogation methods, potential torture/reverse-engineered SERE techniques and other matters were discussed. This was done precisely because all indications had been that the JAG attorneys had significant objections to this under UCMJ and treaty obligation grounds — and so their opinions were cut out of the process and later objections disregarded.

Again, this substantially undercuts whatever “good faith” argument might be made on the legal process in my mind.

We’ve been calling for the creation of a Select Committee. A Select Committee would include representatives of both parties and would examine the activities of the executive branch under Republican and Democratic control. Reform legislation adopted as a consequence of the Select Committee investigation would help ensure that future administrations would follow the law and respect individual rights — regardless of which party happened to be in power.

But I should emphasize that even a Select Committee wouldn’t be a substitute for a criminal investigation. It’s not either/or.

Great question, Christy. Your “get to the phones” threads really motivate us to push for change.

Thanks for being here Jameel. I’m curious about the tape destruction. IIRC the CIA was ordered by a judge to preserve evidence, including those tapes. Their destruction violated a court order. What are the potential consequences for those who destroyed the tapes? It worries me that they might get a comparative slap on the wrist for obstruction of justice, rather than facing the music for torture.

I always like getting other perspectives on what needs to be pushed, too — it’s useful for evaluation purposes. And Jameel has been on the forefront of so much of the work on these issues the last few years, it’s a wonderful opportunity for us to get some time to speak with him about all of this today.

I tend to agree with you that Yoo was trying to blur the law. My question is wondering whether his attempts to do so might actually end up backfiring, because of how closely the opinions were held from the very folks that now would want to use them in their own defense.

But wouldn’t it be argued that the reverse is true? That the interrogators were in fact relying on the good faith of those who claimed that the memos protected them, even if they (the interrogators) never actually saw the memos?

Granted it is all hearsay and word of mouth but it seems the folks down the chain of command might have some protection not available to those at the very top.

Or I might be an idiot

Jameel have you been able to access or talk to Binyan Mohamed?
http://www.latimes.com/news/na…..7077.story

Has the ACLU ever interviewed detainees of Abu Gharib?

Not Jameel, but destruction of evidence in violation of a direct court order can result in a fine, jail time for contempt, or any number of other sanctions. And based on judge reaction thus far, I’d say “pissed” is a mild word for how the court is feeling…

And when can we expect some Uighurs to be released.

The importance of the destroyed tapes may turn on whether there are transcripts of the tapes, summaries of the tapes, interrogation logs, etc. In our litigation in New York (aclu.org/torturefoia), we’ve moved to hold the CIA in contempt for its destruction of the tapes, and in connection with that motion, we’ve asked the judge to order the agency to turn over any transcripts, summaries, etc. that may exist. The next important deadline with respect to this issue is March 20, when the CIA will file a list of these documents with the court. (We’ll have to see whether it files the list publicly or not.)

The tapes aren’t the only visual evidence, though, of abusive interrogations. Through the same lawsuit, we’ve been trying to unearth photographs depicting abuse at military facilities other than Abu Ghraib. The Defense Department has acknowledged to us that many such photographs exist, and two courts have now ordered the Defense Department to turn the photos over to us. But the Bush administration asked the appeals court to reconsider its decision, and that request for rehearing has been pending with the court for several months. We’re hoping that the new administration will not oppose the release of the photographs, but we’ll see. Thus far they haven’t commented on the issue.

Meant to also say that one of the big problems in that matter is threading through the spin, the half-truths and the information not yet known to ascertain where the blame for said destruction really lies — or who will be set up to take the blame for whomever else may have been responsible for it higher up the chain. Judges hate that sort of deliberate ambiguity and will generally let you know in no uncertain terms that they will only put up with CYA kabuki for so long without lowering the boom. In my experience anyway.

Mr. Jaffer,

Thank you so much for the tireless efforts of ACLU with regard to torture, illegal surveillance and the restoration of the rule of law.

I’m struck by the differences we see in the responses to these abuses in different countries. Here in the US, only a handful of nonprofits seem to be actively engaged in pushing back against the abuses to restore the rule of law. A very few politicians are asking for prosecutions, but many more, with the help of the media, are asking us to just look forward.

In the UK, many politicians are now getting on board with demands for criminal investigations of the torture of Binyam Mohamed and the media are fanning the flames.

In Pakistan, large numbers of lawyers put their lives on the line and took to the streets to demand the reinstatement of the Supreme Court justices that Musharraf sacked.

Given that the US seems to be so far behind the rest of the world in facing up to crimes and demanding that those who committed them are held responsible, what steps do you think are available to groups like us shrill bloggers to help bring public discussion more in line with the responses in other countries? From the polling I’ve seen, it doesn’t seem to be unpopular to want investigations and/or prosecutions. My take is that it is politicians and the press who stand in the way. How do we bring them along in this process?

Still waiting for the evidence that “no one is above the law” rhetoric that comes out of Leahy, Obama, Pelosi’s etc mouths.

Thanks Christy. I hope if it’s jail time, they get the longest sentence allowed. This sort of behavior should not be tolerated.

I think these are all great questions, but collectively they only underscore how much we still don’t know about who developed the torture policies, why they were developed, how they were implemented etc. That’s why I say that we need a more serious investigation than has been conducted thus far. There are some very vocal people out there who want to shut down the investigation before it has even got off the ground. I think this would be a serious mistake. Perhaps ultimately it will make sense not to prosecute some people who violated the law. But isn’t that an argument that should be made and considered *after* we know all of the facts rather than before?

It looks like I’m too late, but just in case I’m not:

Is anyone handling any filings or legal proceedings or FOIA requests relating to KSM’s disappeared children or Aafia Siddiqui’s children?

Thanks for all your hard work.

There are some very vocal people out there who want to shut down the investigation before it has even got off the ground.

Who are these people?

Any comment on Obama’s EO, being reported today, advising Executive Branch people not to rely on Bush’s signing statements?

like so many organizations, the aclu has been hit by the economic downturn. one practical thing we can do to support the work mr. jaffer and others are doing is donate. every dollar helps.

Do you think David Addington will get a job or fellowship at the American Enterprise Institute?

since he is having a hard time getting a job
http://thinkprogress.org/2009/…..on-no-job/

Good reminder — we do a monthly donation to ACLU at this house. And it’s awfully easy to set that up, too…

And it’s going to be difficult for former OLC lawyers to argue that these memos were good faith interpretations of the law, because many of the memos just ignored legal authority that didn’t support their conclusions.

Came late. But I would think it would be even more difficult to maintain the fiction that these were good faith products since in many ways they were more the product of David Addington’s office and less the work of the OLC.

I’m going to have to sign off after this one, but:

Yes, there’s something you can do. Anyone who has a senator or representative on the House or Senate Judiciary, Armed Services, or Intelligence committees should be pressing their members of Congress to investigate, investigate, investigate. All of these committees have the power to investigate, issue subpoenas, call witnesses, etc. No need to wait for any special committee, commission, or prosector.

The ACLU will continue to call for transparency and accountability, but we won’t get anywhere if we’re out there on our own. Congress needs to understand that the public thinks these issues are important.

Thanks again, Christy, for inviting me to participate in this discussion, and thanks to the rest of you for your comments and questions.

Jameel

Thanks so much, Jameel — do come back any time. We’d love to have you.

It is confusing that Senator Leahy put forward the truth commission with immunity idea. Being a former prosecutor, he obviously knows that the evidence warrants a criminal investigation. So why bring immunity into it? Do you know the back game on this. Is there one?

Heh. I cough when I laugh because I am still sick.

At what level does the ‘Nuremburg Defense’ kick-in?

The notion of ‘good faith’ in a slaughterhouse or when describing the activities that go on in torture ‘chambers’ is more than faintly ludicrous …

But then, that must be an area, one among many, where American ‘exceptional-ism’ comes into play …

First, the term ‘lies’ could not be used, we were merely ‘misled’ …

Then, the word, ‘torture’ could not be uttered aloud …

Now, as Busted has suggested, let us ponder the use of the word appropriate to these ‘misdeeds’, that word is … treason, is it not?

And then, to be even reasonably ‘honest’, that word must be coupled to the term, ‘crimes against humanity’.

What words or terms are sufficient or accurate?

To successfully ‘blur’ the law requires that we blur both our vision and our vocabulary, as well as trample upon whatever moral ‘compass’ we may possess.

For the ‘underlings’ to expect any ‘good faith’ on the part of the rest of us, they must first prove willing and able to place ‘responsibility’ where it truly lies (or misleads).

We shall see.

Or the Eichmann defense.

Sorry I missed this discussion. But I do want to give a big Thank You to the ACLU for all that they do.

Also do we have any idea what the various OLC memos that Addington kept in his safe were about? Do we have any idea where these currently are?

With the Obama Administration’s defense of state secrets arguments, with his previous support for the FISA Amendments Act, with the declaration by Obama nominees that waterboarding will not be used but that the CIA should not be covered by the Army Field Manual, that rendition is still an option, that Guantanamo will be closed but Bagram will be expanded, that al Marri will be tried in a federal court but that the power of the Executive to detain indefinitely will not be tested, how do you rate the Obama Administration so far?

And thanks so much to everyone else for such thoughtful questions. Really intriguing stuff that I wish we had more answers to at this point.

Thank you, Jameel.

And, as Christy says, please come back again,.

We all need more answers and information.

You and all who labor for the ACLU are to be commended and appreciated by all Americans who understand. Even those who do not understand, benefit more than they shall ever know from your collective efforts.

DW

Thanks, Christy. That was good.

Seconding the thanks. I really appreciate the hard work that must go on to arrange something like this. It is a tremendous public service.

Yes, discussions like this are why I came to the Lake in the first place!

Rule of Law!

just got here, haven’t looked through comments and I know christy touched on the point so forgive the redundancy;

The Bush administration contended in court that the memos are protected by the attorney-client privilege or that they can’t be released without compromising the nation’s security….

nal but as far as I can see the only portion of that statement that has a chance of surviving a challenge might be the second part

the president is using this lawyer as an official, not as a private lawyer for his personal activities but as a public lawyer, hired by us, payed by us and responsible to us, NOT the president

President Obama touched on that Rule of Law thing today:

Memo: Don’t Rely On Bush Signing Statements – NYT

We have a number of great chats upcoming this week on econ issues as well, and I’m working on more legal chats in the weeks and months ahead, too. It does take a lot of work to coordinate — but it’s so worth it in terms of Q&A and direct information and contact.

Especially when we can get a member of Congress here to see how engaged people outside the Beltway really are about various issues. For some, it can be a real shock to realize just how detailed folks outside their staff can get — and how much we are all paying attention to what they have, or have not!, been doing. Which is exactly why we try to get them here when and where we can.

ditto…send $$$ to them

Oh great. Missed another chat. Du’oh!

These issues are very important. Thanks Jameel for all your hard work.

looseheadprop up at the Mothership on today’s SCOTUS Voting Rights decision

Glad you enjoyed it. :)

Drat! I forgot all about this chat. I wanted to see if Jameel knew if we are still holding prisoners on US Navy ships.

Mr. Jaffer, I know you are gone, but I wanted to make this point anyway. Those committee members do not just represent their constituency. They represent the nation in their committee activities, so each and every one of them is fair game for contact.