Tag: Department of Justice

In the recent embarrassing uproar over Attorney General Eric Holder’s labeling a James Rosen, reporter for Fox News, a co-conspirator in a federal leak probe and issued a secret search warrant for his e-mails, Holder said that Department of Justice rules would be reviewed and revised as needed. The “New Rules” on media policy (pdf) were issued last week. The rules, as Marcy Wheeler at empty wheel points out, will only apply to explicitly to “members of the news media,” not journalists per se.

The definition might permit the exclusion of bloggers and book writers, not to mention publishers like WikiLeaks. [..]

That approach would have several advantages over protecting “the news media.” First, by protecting the act of journalism, you include those independent reporters who are unquestioningly engaging in journalism (overcoming the blogger question I laid out, but also those working independently on book projects, and potentially – though this would be a contentious though much needed debate – publishers like WikiLeaks), but also exclude those news personalities who are engaging in entertainment, corporate propaganda, or government disinformation.

The rules also are a move to set up an “official press.” More from Marcy who goes into detail:

The First Amendment was written, in part, to eliminate the kind of official press that parrots only the King’s sanctioned views. But with its revised “News Media Policies,” DOJ gets us closer to having just that, an official press.

That’s because all the changes laid out in the new policy (some of which are good, some of which are obviously flawed) apply only to “members of the news media.” They repeat over and over and over and over, “news media.” I’m not sure they once utter the word “journalist” or “reporter.” And according to DOJ’s Domestic Investigation and Operations Guide, a whole slew of journalists are not included in their definition of “news media.” [..]

The limitation of all these changes to the “news media” is most obvious when it treats the Privacy Protection Act – which should have prevented DOJ from treating James Rosen as a  suspect. [..]

The PPA, however, applies to all persons “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.” [..]

I’m clearly covered by the PPA. But the FBI could easily decide to exclude me from this “news media” protection so as to be able to snoop into my work product.

Congratulations to the “members of the news media” who have been deemed the President’s official press. I hope you use your privileges wisely.

Update: I’ve learned that the issue of whom this applied to did come up in background meetings at DOJ; in fact, DOJ raised the issue. The problem is, there is no credentialing system that could define who gets this protection and DOJ didn’t want to lay it out (and most of the people invited have never been anything but a member of the news media, making it hard for them to understand how to differentiate a journalist).

Ultimately, I think DOJ is so anxious for Congress to pass a shield law (which they say elsewhere in their report) because it’ll mean Congress will do the dirty work of defining who is and who is not a journalist.

The full article is a wealth of information and worth the time to read it, along with all the links.

The Obama administration and Congress are coming very close to creating a state sanctioned press, a true “Pravda on the Potomac,” as The Washington Post is unofficially called. This is Cass Sunstein’s dream come true.

No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions.

  ~Thomas Jefferson, Letter to Judge John Tyler (June 28, 1804)~

The perpetrator of a crime cannot investigate himself. Yet that is what Pres. Barack Obama has proposed over  growing concerns about press freedom following the Justice Department’s secret seizure of AP records and its accusation that Fox News reporter James Rosen could be part of a criminal conspiracy for soliciting information from a source. The president said that he would have Attorney General Eric Holder review the Justice Department guidelines for investigations that involve journalists. Although Holder did not sign the subpoena for the phone records of the Associated Press, Holder had to recuse himself from the investigation because he was in possession of the leaked information. Now, it has been revealed that Holder, himself, who signed the off on the warrant that allowed the Justice Department to search Fox News reporter James Rosen’s personal email.

The report places Holder at the center of one of the most controversial clashes between the press and the government in recent memory. The warrant he approved named Rosen as a “co-conspirator” in a leak investigation, causing many to warn that the Justice Department was potentially criminalizing journalism. The warrant also approved the tracking of Rosen’s movements in and out of the State Department, as well as his communications with his source, Stephen Kim. [..]

The Attorney General is usually required to approve requests to search journalists’ materials, but that rule does not extend to email records.

Now Pres. Obama says that it will be Holder who reviews the guidelines. This is the man who also said he doesn’t know how many times he had authorized the search of journalists’ records.

In an interview with Amy Goodman at Democracy Now, Matthew Rothschild, editor and publisher of The Progressive magazine, has called for Eric Holder’s resignation over spying on journalists and Occupy Wall Street protestors.

As much as many criticize Fox News and the Associated Press for their penchant for a right wing biased reporting, they are the press. The First Amendment applies to them, as well as, to the other news organizations and their reporters. In this we stand together.

Regardless of the left’s opinion of Fox News, the Obama administration has gone way over the constitutional line and this is adds to the serious threat to freedom of the press. The idea that the government. on its unconstrained wild hunt for whistle blowers, can issue secret subpoenas for telephone records just got worse this morning. The case is being made against Fox News reporter James Rosen for his reporting on the possibility that North Korea would respond to additional UN sanctions with more nuclear tests back in 2009. The Department of Justice is prosecuting State Department adviser and arms expert Stephen Jin-Woo Kim for “leaking” the information to James Rosen of Fox News. To makes the case against Rosen this is what the DOJ did:

They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails. [..]

Court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist – and raise the question of how often journalists have been investigated as closely as Rosen was in 2010. The case also raises new concerns among critics of government secrecy about the possible stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.

First, Kim did not obtain these documents illegally, he had access to them, He did not steal or sell the documents, or pass them to an enemy agent of the US. He gave, what is for all intents and purposes, innocuous information to a news reporter. For that Kim is being prosecuted under the Espionage Act. Now the DOJ is seeking to prosecute Rosen for revealing the information.

Glenn Greenwald reiterated that it is not against US law to to publish classified information and is far worse than the secret subpoena of the phone records of the Associated Press:

The focus of the Post’s report yesterday is that the DOJ’s surveillance of Rosen, the reporter, extended far beyond even what they did to AP reporters. The FBI tracked Rosen’s movements in and out of the State Department, traced the timing of his calls, and – most amazingly – obtained a search warrant to read two days worth of his emails, as well as all of his emails with Kim. In this case, said the Post, “investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.” It added that “court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist”.

But what makes this revelation particularly disturbing is that the DOJ, in order to get this search warrant, insisted that not only Kim, but also Rosen – the journalist – committed serious crimes. The DOJ specifically argued that by encouraging his source to disclose classified information – something investigative journalists do every day – Rosen himself broke the law.

In an affidavit (pdf) from the FBI by Agent Reginald B. Reyes in the application for the search warrant, Reyes alleged that because Rosen and Kim used aliases to protect their communications and sought ways to maintain confidentiality, all completely legal for journalists to do, Rosen was acting “much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”

In her comparison of this case with the Associated Press, and cases against James Risen of The New York Times and Bradley Manning, Marcy Wheeler notes that Agent Reyes used the strategy of painting Rosen as criminal to circumvent the “Privacy Protection Act protections for media work product” in order to obtain the warrant for Rosen’s e-mails and other records:

In other words, during a period from May 2010 through January 2011, Eric Holder’s DOJ was developing this theory under which journalists were criminals, though it’s just now that we’re all noticing this May 2010 affidavit that lays the groundwork for that theory.

Maybe that development was predictable, given that during precisely that time period, the lawyer who fucked up the Ted Stevens prosecution, William Welch, was in charge of prosecuting leaks (though it’s not clear he had a role in Kim’s prosecution before he left in 2011).

But it’s worth noting the strategy – and the purpose it serves – because it is almost certainly still in effect. FBI Special Agent Reginald Reyes accused Rosen of being a criminal so he could get around the Privacy Protection Act protections for media work product (See pages 4 and following), which specifically exempts “fruits of a crime” or “property … used [] as a means of committing a criminal offense.” Then he further used it to argue against giving notice to Fox or Rosen.

   Because of the Reporter’s own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from Reporter would be futile and would pose a substantial threat to the integrity of the investigation and of the evidence we seek to obtain by the warrant. (29)

While the AP’s phone records weren’t taken via a warrant, it would be unsurprising if the government is still using this formula – journalists = criminals and therefore cannot have notice – to collect evidence. Indeed, that may be one reason why we haven’t seen the subpoena to the AP.

It is very clear that this is an unprecedented threat to freedom of the press and the Obama administration has escalated this war since Obama took office in 2009.

In an interview last week with Amy Goodman and Nermeen Shaikh, senior fellow at The Nation Institute Chis Hedges, called the monitoring of the AP phone records “one more assault in a long series of assault against freedom of information and freedom of the press.”

“Talk to any investigative journalist who must investigate the government, and they will tell you that there is a deep freeze. People are terrified of speaking, because they’re terrified of going to jail.”

~Chris Hedges~

Here is Mr. Hedges piece from Truthdig documenting The Death of Truth

Other related articles from Glenn Greenwald at The Guardian:

Justice Department’s pursuit of AP’s phone records is both extreme and dangerous

The major sea change in media discussions of Obama and civil liberties

Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.

~Benjamin Franklin~

   “On Freedom of Speech and the Press”, Pennsylvania Gazette, 17 November 1737

The latest Obama administration headache, “AP-Gate,” that it essentially created on its own, goes the core of the principles on which this country was founded. There is a good reason that the very first amendment addresses freedom of speech and a free press. Yes, at times they have appeared to be just another arm of the government, especially when they spewed the propaganda about 9/11 and Iraq. But every once in awhile they get it right, like the New York Times did on June 13, 1971 when they exposed the dirty secrets of the Vietnam War and the Nixon administration by printing the first segment of the Pentagon Papers. Looking at what happened in the aftermath of those revelations and how it all worked out in the end, reminds us that sometimes government functions in spite of itself.

It’s fairly obvious that the Obama administration is trying to cover its own complicity in what Attorney General Eric Holder labeled among “the top two or three most serious leaks that I’ve ever seen” putting “the American people at risk.” Those proclamations about that leak are laughable since the reason Holder had recused himself from the investigation is that he, himself, is at the center of the storm, along with the new CIA Director John Brennan. All in the name of the continued cover up of the Bush and Obama war crimes.

In an editorial, the New York Times called out the Obama administration for its “chilling zeal for investigating leaks and prosecuting leakers” and its lack of a credible reason for it “for secretly combing through the phone records of reporters and editors at The Associated Press.”

Both Mr. Holder and Mr. Cole declared their commitment – and that of President Obama – to press freedoms. Mr. Cole said the administration does not “take lightly” such secretive trolling through media records.

We are not convinced. For more than 30 years, the news media and the government have used a well-honed system to balance the government’s need to pursue criminals or national security breaches with the media’s constitutional right to inform the public. This action against The A.P., as the Reporters Committee for Freedom of the Press outlined in a letter to Mr. Holder, “calls into question the very integrity” of the administration’s policy toward the press.

As matter of fact, in September 2009, President Obama did a complete reversal of his position on the reporter shield law that he supported in 2007. What he proposed and Democrats opposed, would have gutted judicial review. Rachel Maddow overlooked that point last night, as well, in an otherwise interesting segment that walks us through the importance of freedom of the press and the serious disregard of the Constitution and rules by the Obama Justice Department. Her guest was David Schulz, a media attorney for more than 30 years now representing the Associated Press.

Eric Holder, like Alberto Gonzalez and John Mitchell, lacks the integrity to hold the office of Attorney General. He should resign immediately.

I’m proud to be here as you host World Press Freedom Day.  So everybody from the American press corps, you should thank the people of Costa Rica for celebrating free speech and an independent press as essential pillars of our democracy.

~President Obama

Remarks by President Obama and President Chinchilla of Costa Rica in a Joint Press Conference, in National Center for Art and Culture San Jose, Costa Rica, 10 days ago.

That was so ten days ago. The news broke that Obama Department of Justice had secretly seized two months of phone records of the Associated Press reporters and editors.

The government would not say why it sought the records. Officials have previously said in public testimony that the U.S. attorney in Washington is conducting a criminal investigation into who may have provided information contained in a May 7, 2012, AP story about a foiled terror plot. The story disclosed details of a CIA operation in Yemen that stopped an al-Qaida plot in the spring of 2012 to detonate a bomb on an airplane bound for the United States.

In testimony in February, CIA Director John Brennan noted that the FBI had questioned him about whether he was AP’s source, which he denied. He called the release of the information to the media about the terror plot an “unauthorized and dangerous disclosure of classified information.”

Prosecutors have sought phone records from reporters before, but the seizure of records from such a wide array of AP offices, including general AP switchboards numbers and an office-wide shared fax line, is unusual.

The president and CEO of AP, Gary Pruitt sent a letter protesting the “massive and unprecedented intrusion” (pdf):

Last Friday afternoon, AP General Counsel Laura Malone received a letter from the office of United States Attorney Ronald C. Machen Jr. advising that, at some unidentified time earlier this year, the Department obtained telephone toll records for more than 20 separate telephone lines assigned to the AP and its journalists. The records that were secretly obtained cover a full two-month period in early 2012 and, at least as described in Mr. Machen’s letter, include all such records for, among other phone lines, an AP general phone number in New York City as well as AP bureaus in New York City, Washington, D.C., Hartford, Connecticut, and at the House of Representatives. This action was taken without advance notice to AP or to any of the affected journalists, and even after the fact no notice has been sent to individual journalists whose home phones and cell phone records were seized by the Department.

There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.(my emphasis)

h/t to Marcy Wheeler who points out the two months, April to May of 2012, that were of interest covered the period that, now CIA Director, John Brennan had rolled out his drone propaganda campaign:

That would mean they’d get the sources for this Kimberly Dozier story published May 21 [..]

Within 10 days of the time Dozier published that story, John Brennan had rolled out an enormous propaganda campaign – based on descriptions of the drone targeting process that Brennan’s power grab had replaced, not the new drone targeting process – that suckered almost everyone commenting on drones that drone targeting retained its previous, more deliberative, targeting process, the one Brennan had just changed.

And that propaganda campaign, in turn, hid another apparent detail: that UndieBomb 2.0, a Saudi sting had actually occurred earlier in April, and that UndieBomb 2.0 preceded and perhaps justified the signature strikes done at the behest of the Yemenis (or more likely the Saudis).

Marcy listed the timeline of the AP stories that were focused on Brennan and the undie bomber. However, it was after the Dozier story that  Brennan began his propaganda campaign to cover up how illegal and uncontrollable the drone program is.

Comparing this to Nixon and Watergate, Charles P. Pierce goes full throttle on why Eric Holder should be fired:

This isn’t hard. This is what made Egil (Bud) Krogh famous. This is what got people sent to jail in the mid-1970’s. This is the Plumbers, all over again, except slightly more formal this time, and laundered, disgracefully, even more directly through the Department Of Justice. And of course, this is not nearly good enough. And even if you point out, as you should, that the AP is hyping this story a little — The government “secretly” obtained the records? Doesn’t that imply that nobody knew the records had been seized? Wasn’t there a subpoena? The phone companies knew. — the ignoble clumsiness of this more than obviates those particular quibbles.

The White House on Monday said that other than press reports it had no knowledge of Justice Department attempts to seek AP phone records. “We are not involved in decisions made in connection with criminal investigations, as those matters are handled independently by the Justice Department,” spokesman Jay Carney said.

That is all my arse. At the least, this was a counter-terrorism operation. (Why else would Brennan have been questioned already?). Which puts the whole business inside the White House. And you’d have to be a toddler or a fool to believe that Eric Holder could go off on his own and take as politically volatile a step as this. But, let us take the White House at its word. Eric Holder did this by himself. He should be gone. This moment. Not only is this constitutionally abhorrent, it is politically moronic. Nobody likes the press, I will grant you that, but the administration is soft if it thinks the public distrusts the press that much. And to have this genuinely chilling revelation emerge simultaneously with the Benghazi, Benghazi!, BENGHAZI! mummery and the IRS dumbassery is pretty much a full broadside below the water line of this administration’s credibility. Good god, this is going to be one long-ass summer.

Pres. Obama needs to do damage control starting with throwing Holder to the wolves. I suspect this will be the next congressional investigation in an effort to not just derail Hillary Clinton’s 2016 campaign but to build a case for impeachment of Obama for abuse of his executive powers. A long hot summer, indeed.

The foreclosure fraud perpetrated by the banks and private mortgage companies that was given a pass by the Obama Department of Justice.

Nearly a third of all foreclosed borrowers who faced proceedings brought by the biggest U.S. mortgage companies during the height of the housing crisis came to the brink of losing their homes due to potential bank errors or under now-banned practices, regulators have revealed. [..]

The estimates, disclosed Tuesday, far exceed projections made over the past few years after document abuses known as robosigning gained widespread attention in late 2010. [..]

They reveal that nearly 700 borrowers who faced foreclosure proceedings had actually never defaulted on their loans (pdf).

More than 28,000 households that faced foreclosure proceedings were protected under federal bankruptcy laws, while roughly 1,100 had been meeting all the requirements of so-called forbearance plans that their mortgage companies had agreed to, which allow for delayed payments.

Some 1,600 borrowers who faced foreclosure proceedings were protected by the Servicemembers Civil Relief Act of 2003, which forces mortgage companies to cap interest rates and follow special procedures when foreclosing on homes belonging to active-duty members of the armed forces and their families.

Banks are foreclosing on military members, on people who had been approved for a loan modification, and even on people who were never behind in their payments–all part of an astounding settlement that shortchanged millions of homeowners and left hundreds of thousands wrongfully ejected from their homes.  Former Governor Elliot Spitzer; Alexis Goldstein, former Vice President at Merrill Lynch and Deutsche Bank, now an Occupy Wall Street activist ; and Faith Bautista, who was the victim of wrongful home foreclosure in 2009, join Chris Hayes and paint a stark picture of what happened, who is responsible and why there isn’t more justice from the government.

The big banks continue to receive %83 billion a year in tax payer money to bail them out. Where is the justice for these homeowners?

Without comment from Marcy Wheeler at emptywheel:

As TPM’s Ryan Reilly noted yesterday (link to come), among the awards Attorney General Eric Holder gave out at yesterday’s Attorney General’s Award Ceremony was a Distinguished Service Award to John Durham’s investigative team that chose not to prosecute Jose Rodriguez or the torturers who killed their victims.

   The 13th Distinguished Service Award is presented to team members for their involvement in two sensitive investigations ordered by two different Attorneys General. In January 2007, Attorney General Michael Mukasey asked Assistant U.S. Attorney John Durham to lead a team that would investigate the destruction of interrogation videotapes by the CIA. Assistant U.S. Attorney Durham assembled the team and began the investigation. Then, in August 2009, Attorney General Holder expanded Assistant U.S. Attorney Durham’s mandate to include a preliminary review of the treatment of detainees held at overseas locations. This second request resulted in the review of 101 detainee matters that led to two full criminal investigations. In order to conduct the investigations, the team had to review significant amounts of information, much of which was classified, and conduct many interviews in the United States and at overseas locations.



The timing on this award-coming even as DOJ aggressively prosecutes John Kiriakou for talking about this torture-is particularly cynical.

Holder also presented a Distinguished Service Award to the team that crafted a $25 billion settlement effectively immunizing the banksters for engaging in systemic mortgage fraud.

   The third Distinguished Service Award is presented to the individuals involved in procuring a $25 billion mortgage servicing settlement between the United States, 49 state attorneys general and the five largest mortgage servicers, representing the largest federal-state settlement in history.   The settlement includes comprehensive new mortgage loan servicing standards, $5 billion to state and federal treasuries and borrowers who lost their homes to foreclosure, $20 billion in consumer relief and a $1 billion resolution of False Claims Act recoveries by the Eastern District of New York.

As DDay has documented relentlessly, the settlement is little more than kabuki, with most of the “consumer relief” consisting of actions the banks were already taking.

While everyone was watching the hoopla in Charlotte and the Super Bowl champion Giants lose to the comeback Cowboys, Human Rights Watch released a report “Delivered into Enemy Hands: US-Led Abuse and Rendition of Opponents to Gaddafi’s Libya,” that revealed new allegations of rendition, torture and deaths of prisoners in the custody of the CIA.

A new report by the nonprofit group Human Rights Watch, based on documents and interviews in Libya after the fall of its dictator, Col. Muammar el-Qaddafi, includes a detailed description of what appears to be a previously unknown instance of waterboarding by the C.I.A. in Afghanistan nine years ago. [..]

The investigation by Human Rights Watch had its origins in a trove of documents related to detainees transferred to Colonel Qaddafi’s prisons, including several by the United States. The papers became available last year as a result of the uprising against the Libyan leader, which was supported by the United States and other NATO allies.

Researchers used the names on the files as part of their broader efforts to track down former prisoners transferred to Libyan custody and interview them, opening an unusual window into American detention, interrogation and rendition operations nearly a decade ago. Many of the former detainees are now living freely in Libya, and some are active in politics or have positions in the new government.

The 156-page report, “Delivered Into Enemy Hands: U.S.-led Abuse and Rendition of Opponents to Gaddafi’s Libya,” written by Laura Pitter, recounts interviews with 14 Libyans who it says are former detainees who were sent back to Libya around 2004, after Colonel Qaddafi agreed to renounce his nuclear ambitions and help fight Islamist terrorism. At least five, Ms. Pitter writes, had been held by the C.I.A. in Afghanistan before their rendition.

As reported in the New York Times article, the report focused on the ordeal of Mohammed Shoroeiya, who was reportedly detained in Pakistan in April 2003 and held in American custody in Afghanistan before being transferred to Libya. Spencer Ackerman of Wired gives the graphic details:

A drawing by a Libyan of a 1- by 1-meter box into which he says he was placed during his harsh interrogation by the U.S. in Afghanistan. Image: Human Rights Watch

Click on image to enlarge.

This is a drawing of a locked box which a Libyan man says U.S. interrogators once stuffed him into. It’s said to be about three feet long on each side. Only once during his two years in detention was the detainee put in the box; his confinement there lasted over an hour. The circles are small holes, into which his interrogators “prodded him with long thin objects.”

It wasn’t the only box that the CIA allegedly placed him inside. Another was a tall, narrow box, less than two feet wide, with handcuffs at the top. The detainee, Mohammed Ahmed Mohammed al-Shoroeiya, says he was placed into that one with his hands elevated and suspended by the handcuffs, for a day and a half, naked, with music blasting into his ears constantly through speakers built into the box. A different detainee describes being placed into a similar box for three days and being left with no choice but to urinate and defecate on himself.

Getting shoved into those boxes was only the start of Shoroeiya’s woes. The CIA would later deliver him and at least four others into the hands of the Libyan dictator Moammar Gadhafi, who further brutalized them for opposing his regime. Accordingly, a new Human Rights Watch report telling the stories of those detainees strips away a euphemism in the war on terrorism: how the CIA says it holds its nose and “works with” unsavory regimes. “It can’t come as a surprise that the Central Intelligence Agency works with foreign governments to help protect our country from terrorism and other deadly threats,” spokeswoman Jennifer Youngblood told the Wall Street Journal. What may indeed come as a surprise is what that actually means in practice, as recounted by at least five Libyan ex-detainees Human Rights Watch interviewed.

Media reports on Thursday morning understandably focused on what Human Rights Watch called “credible allegations” of waterboarding by CIA officials, since the U.S. has only ever acknowledged waterboarding three detainees. But what Human Rights Watch has uncovered in Libya tells a broader story. It’s a story about how repressive governments used the war on terrorism to get the U.S. to deliver their political opponents to their custody. It was as easy as calling them terrorists – which was enough for the U.S. to play along.

Writing for The Dissenter at FDL, Jeffrey Kaye aka Valtin, a psychologist active in the anti-torture movement, writes:

Perhaps the most explosive new information in the report concerns charges by one of the prisoners that he was waterboarded. US authorities have long maintained that only three CIA-held prisoners were ever waterboarded, and the Department of Defense maintains it never waterboarded prisoners in DoD custody. [..]

Khalid al-Sharif, who was another LIFG leader captured at the same time as Shoroeiya, told HRW that he also was subjected to water torture while in U.S. custody. Today, Sharif is head of the Libyan National Guard. [..]

The UN Convention Against Torture, to which the U.S. is a signatory, states, “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

Sharif has said the Libyans placed him in “extreme isolation.” Shoroeiya said initially the Libyans told him he would not be maltreated because they had made assurances to U.S. authorities as to his safety as part of his transfer. Nevertheless, after six months, the Libyans began to torture Shoroeiya, including both “long periods of solitary confinement” and beatings by guards, who used “sticks, steel pipes, and electrical cables that were used as a whip” to bloody the prisoner.

U.S. Water Torture of Teen

The new revelations concerning waterboarding and waterboarding-like torture of detainees comes a year after a two-part series at Truthout in August 2011 which revealed that, despite denials by former Secretary of Defense Donald Rumsfeld and other DoD authorities, waterboarding-like torture was used in DoD facilities, including Guantanamo.

While the HRW report is certain to get wide U.S. coverage, the recent release of documents related to the incarceration of Omar Khadr, a long-term Guantanamo detainee who was brought to that prison as a 15-year-old teenager, has so far not gained much attention.

In one of the documents published August 31 by Macleans Canada, US Army psychiatrist, Brigadier General (retired) Stephen Xenakis, wrote to Canada’s Minister of Public Safety Vic Toews last February, describing his psychiatric evaluation of Khadr, based on hundreds of hours of meetings with the former child prisoner.

The HRW report, which was released after US Attorney General Eric Holder announced the end of the investigation of torture allegations without charges, makes these recommendations:

To the United States Government

   

• Consistent with obligations under the Convention against Torture, investigate credible allegations of torture and ill-treatment since September 11, 2001 and implement a system of compensation to ensure all victims can obtain redress.
• Acknowledge past abuses and provide a full accounting of every person that the CIA has held in its custody pursuant to its counterterrorism authority since 2001, including names, dates they left US custody, locations to which they were transferred, and their last known whereabouts.
• Ensure that any person subject to rendition abroad has the right, prior to transfer, to challenge its legality before an independent tribunal, including any diplomatic assurances made; to legal counsel; and to appeal a transfer before it is carried out.
• Prohibit reliance upon diplomatic assurances against torture and ill-treatment (and make public the procedures used to ensure compliance) if there is any credible evidence the person subject to transfer faces a risk of torture or other ill-treatment.
• Include in required periodic reports to the Committee against Torture, the Human Rights Committee, and other relevant international and regional monitoring bodies detailed information about all cases in which requests for diplomatic assurances against the risk of torture or other ill-treatment have been sought or secured in respect to a person subject to transfer.

To the President of the United States

   

• Direct the attorney general to begin a criminal investigation into US government detention practices and interrogation methods since September 11, 2001, including the CIA detention program. The investigation should examine the role of US officials, no matter their position or rank, who participated in, authorized, ordered, or had command responsibility for torture or ill-treatment and other unlawful detention practices, including enforced disappearance and rendition to torture or other ill-treatment.
• Make publicly available the August 2009 report of the Special Task Force on Interrogation and Transfers (an inter-agency task force set up by the Obama administration in January 2009).

To the US Congress

   

• Create an independent, nonpartisan commission to investigate the mistreatment of detainees in US custody anywhere in the world since September 11, 2001, including torture, enforced disappearance, and rendition to torture. Such a commission should hold hearings, have full subpoena power, compel the production of evidence, and be empowered to recommend the creation of a special prosecutor to investigate possible criminal offenses, if the attorney general has not commenced such an investigation.

We know that the Obama administration was determined to never prosecute any of the main architects of the Bush regime torture program, or close Guantanamo. Last week while everyone was focused on the Republican Party Convention in Tampa, the Department of Justice announced that it is formally ending its investigation of the CIA’s “enhanced interrogation” program with out bringing criminal charges:

Attorney General Eric H. Holder Jr. announced Thursday that no one would be prosecuted for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003, eliminating the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the C.I.A.

Mr. Holder had already ruled out any charges related to the use of waterboarding and other methods that most human rights experts consider to be torture. His announcement closes a contentious three-year investigation by the Justice Department and brings to an end years of dispute over whether line intelligence or military personnel or their superiors would be held accountable for the abuse of prisoners in the aftermath of the terrorist attacks of Sept. 11, 2001.

Mr. Holder had stated that the DOJ would not charge any of the interrogators if they had acted strictly in accordance with the department’s legal advice. Thus giving legitimacy to the “we were just following orders” defense that was rejected when used by German war criminals at Nuremberg. Mr. Holder just thumbed his nose at established international law, as well.

The lame excuse that there is a lack of solid evidence is just ludicrous, as David Dayen wrote in his article at FDL News Desk:

This was the investigation headed by John Durham, the federal prosecutor selected in August 2009 to look into charges of torture in CIA interrogations during the Bush Administration. We know plenty about those charges. The Justice Department released a previously classified document around the same time that they named Durham to lead the investigation, detailing the methods they used to interrogate suspects, including plenty of metMr. Obamahods that a plain reading would consider to be torture. This included waterboarding, stress positions, mock executions, threatening with handguns and power drills, vowing to kill or rape members of a detainee’s family, and inducing vomiting. [..]

In July 2010, federal judge and former Bush-era Justice Department official Jay Bybee, who wrote many of the Administration’s guidelines on interrogation, admitted to a House committee that CIA personnel never asked for approval for many of the interrogation techniques they used, that they went further than the prescribed guidelines from him, and that the ones he did prescribe were used excessively. Even if you believe that Bybee’s techniques were legal and did not violate federal and international conventions against torture, his testimony revealed clearly that CIA interrogators broke the law. Despite this prima facie evidence of unauthorized interrogation, the investigation went nowhere.

From the very start of his administration Pres. Obama and his officials have shielded the Bush torturers from all accountability, despite his campaign promise to have his Justice Department thoroughly investigate any charge of torture because no one is above the law. Then, even before he was inaugurated Mr. Obama declared that he was apposed to any of these investigations declaring  “we must look forward, not backward.”

Glenn Greenwald writing for The Guardian, reviews the timeline of decisions that has lead to a whitewash of the “war on terror crimes.”

Throughout the first several months of his presidency, his top political aides, such as the chief of staff, Rahm Emanuel and his press secretary, Robert Gibbs, publicly – and inappropriately – pressured the justice department to refrain from any criminal investigations. Over and over, they repeated the Orwellian mantra that such investigations were objectionable because “we must look forward, not backward“. As Gibbs put it in April 2009, when asked to explain Obama’s opposition, “the president is focused on looking forward. That’s why.”

On 16 April 2009, Obama himself took the first step in formalizing the full-scale immunity he intended to bestow on all government officials involved even in the most heinous and lethal torture. On that date, he decreed absolute immunity for any official involved in torture provided that it comported with the permission slips produced by Bush department of justice (DOJ) lawyers which authorized certain techniques. “This is a time for reflection, not retribution,” the new president so movingly observed in his statement announcing this immunity. Obama added:

   “[N]othing will be gained by spending our time and energy laying blame for the past … we must resist the forces that divide us, and instead come together on behalf of our common future.” [..]

(I)n August 2009, Holder announced a formal investigation to determine whether criminal charges should be brought in over 100 cases of severe detainee abuse involving “off-the-books methods” such as “mock execution and threatening a prisoner with a gun and a power drill”, as well as threats that “prisoners (would be) made to witness the sexual abuse of their relatives.” But less than two years later, on 30 June 2011, Holder announced that of the more than 100 cases the justice department had reviewed, there would be no charges brought in any of them – except two.

Glenn goes on to discuss the evidence in those two brutal cases that the justice department has now closed without charges and how the Obama administration even shut down investigations by Spain and Germany:

Moreover, Obama’s top officials, as WikiLeaks cables revealed, secretly worked with GOP operatives to coerce other countries, such as Spain and Germany, to quash their investigations into the US torture of their citizens, and issued extraordinary threats to prevent British courts from disclosing any of what was done. And probably worst of all, the Obama administration aggressively shielded Bush officials even from being held accountable in civil cases brought by torture victims, by invoking radical secrecy powers and immunity doctrines to prevent courts even from hearing those claims.

Meanwhile, the Obama administration has prosecuted whistleblowers with a vigor that has surpassed all other presidents. In the NY Times article, Mr Holder noted one case in his announcement:

While no one has been prosecuted for the harsh interrogations, a former C.I.A. officer who helped hunt members of Al Qaeda in Pakistan and later spoke publicly about waterboarding, John C. Kiriakou, is awaiting trial on criminal charges that he disclosed to journalists the identity of other C.I.A. officers who participated in the interrogations.

Glenn appeared on Democracy Now with host Amy Goodman to discuss Mr. Holder’s announcement. During the seven minute interview they also discussed Clint Eastwood’s conversation with an empty chair at the RNC Convention,

Mr. Holder covers up the evidence, allows the real criminals to walk, instead prosecuting those who spoke out about the crimes.

Is this the change we are suppose to believe in and vote to reelect?  

Surprise, surprise. As reported in the New York Times Dealbook, John Corzine, former New Jersey Senator, Governor and CEO of the now defunct MF Global, has been given a pass by Attorney General Eric “It’s too hard” Holder for defrauding investors of about $1 billion.

After 10 months of stitching together evidence on the firm’s demise, criminal investigators are concluding that chaos and porous risk controls at the firm, rather than fraud, allowed the money to disappear, according to people involved in the case.

The hurdles to building a criminal case were always high with MF Global, which filed for bankruptcy in October after a huge bet on European debt unnerved the market. But a lack of charges in the largest Wall Street blowup since 2008 is likely to fuel frustration with the government’s struggle to charge financial executives. Just a few individuals – none of them top Wall Street players – have been prosecuted for the risky acts that led to recent failures and billions of dollars in losses. [..]

Over at FDL, here is masacchio‘s take on those damned “high hurdles” that the “jury” of Justice Department Wall St. cronies can’t seem to leap:

And by jury, I mean the candy ass prosecutors at the Department of Justice, who have made an in-house decision that it’s just too hard to indict anyone at MF Global, including friend of Barack Jon Corzine, for stealing billions of customer dollars. It’s just impossible that a friend of Eric Holder’s could be found to be criminally responsible for allowing a company to steal money from its customers to give to its bank, especially when the bank is the much-loved JPMorgan Chase. After all, the Department of Eric Holder is made up of peers of the MF Global crowd, so it’s just like a real trial.

These chicken-shits have been telling reporters from the beginning that there were really high hurdles to prosecution, as if this were some sort of Olympic event. They tell the reporters that “chaos and porous risk controls at the firm, rather than fraud, allowed the money to disappear”. The billions in losses were beyond human control, and nothing can be done, a phrasing which perfectly mirrors DOJ’s passivity in the face of one of the biggest heists in history.

It’s just too hard to investigate fraud. Investors are so screwed.