April 21, 2009 MSNBC Countdown

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April 21, 2009 CNN

Dave N: Paul Begala and Ari Fleischer debated the release of the Bush torture memos -- and President Obama's indication that prosecutions of the architects of the torture regime may yet face prosecution -- on Anderson Cooper's 360 yesterday.

The fireworks erupted when Fleischer decided that the best defense was to claim that waterboarding really isn't torture:

FLEISCHER: No, again, Anderson, your premise is that it is torture. And I think the only people who can determine that are people from the Department of Justice.

COOPER: But it's interesting, though...

FLEISCHER: If it is torture, if it is torture...

(CROSSTALK)

COOPER: ... when the Khmer Rouge did it, when the Khmer Rouge did it at Tuol Sleng prison, and you can go there, and you can see the instruments they used to water-board people, I mean, we labeled it as torture.

FLEISCHER: And, Anderson, that's why I said the only people who are in a position to make an authoritative judgment on it should be career, independent-minded people at the Department of Justice, without anybody at the White House interfering or anybody else interfering.

And then, if they decide it was, then they have got a very careful decision to make about how far and extensive do you prosecute people. Is it the people who did it? Is it the Democrats and Republicans on Capitol Hill who were briefed on it and didn't object to it? And who in the administration would you have to apply that standard to?

This is where this whole thing can go.

But, going back to the memo, and going back to bipartisanship, you know, it's not just the Bush people who said it was wrong to release that memo. Bill Clinton's head of the CIA said it was wrong to release those memos, because you're teaching al Qaeda operatives exactly what our techniques are.

And why do we want anybody in al Qaeda to know what the limits of our techniques are, Paul?

BEGALA: The techniques that -- the techniques that we no longer use, the techniques that were in "The New York Review of Books" and half of the newspapers and magazines in North America, Ari. I mean, it is...

FLEISCHER: Paul, it was your administration's head of the CIA who objected to the release of those memos.

BEGALA: It doesn't -- it doesn't make...

FLEISCHER: It's a Clinton official who said that.

BEGALA: It doesn't make him right. Torture is always wrong, Ari. We executed...

FLEISCHER: I agree with you that torture is always wrong.

BEGALA: Excuse me for talking while you're interrupting.

(CROSSTALK)

COOPER: Let Paul finish.

BEGALA: We -- our country executed Japanese soldiers who water- boarded American POWs. We executed them for the same crime that we are now committing ourselves. How do you defend that?

The most awkward silence imaginable follows. Finally, Fleischer is able to eke out:

FLEISCHER: Well, again, Paul, I guess you already are the jury, the prosecutor, the judge, and a citizen all rolled into one. You have already pronounced judgment that it is a crime.

Actually, Fleischer could have countered Begala by pointing out that we didn't actually execute the Japanese soldiers convicted of the war crime of waterboarding American prisoners -- we just sentenced them to 15 years' hard labor.

But then, as the New York Times reports this morning, this White House's legal team didn't even bother to research the legal history of waterboarding before issuing their Excuse From Mom.

Waterboarding always was a crime -- until these characters came along. Maybe that's why Ari didn't really try to argue the point any further ...

A parody of the recent National Organization of Marriage's anti-gay commercial "Gathering Storm".

h/t BarbinMD

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From The Ed Show April 21, 2009. Pat Leahy responds to Dick Cheney's remarks and says if he feels so strongly about what he said, let him appear before his committee under oath and answer some questions.

John Amato:

Sen. Pat Leahy also wants a special prosecutor and a bipartisan commission to investigate the torture issue we've been presented with. He then took a very strong position against Jay Bybee and said that he should do the honorable thing and resign from the bench.

Leahy: If the Bush/Cheney administration told the truth about him, and he told the truth about what he did, he never would have been confirmed by the Senate. He never would have become a judge. I think the only decent and honorable thing for him to do now that these facts have come out is to resign. Resign for the good of the Judiciary. What he's done is a total blot on the and it reflects on him and the rest of the Judiciary and he should do the decent and honorable thing and step down.

The liberal blogosphere has been calling for him to be impeached, but if he was a true patriot he would step down and not bring a scandal to the bench. However, if a man can write a memo like that, then I highly doubt that is a realistic option.

I think Judge Bybee should read Digby's intense post called Torturers In Common, so he can take a hard look at what he has done.

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April 21, 2009 C-SPAN

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From The Colbert Report April 21, 2009. Stephen Colbert takes us down the twisted path we're walking if we don't hold the CIA officers who committed torture responsible for their actions.

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From The Daily Show April 21, 2009, This Week in Demagogues. Jon Stewart wonders just how badly President Obama's trip to the Summit of the Americas could have played in the U.S. media and why anyone cares what Dick Cheney thinks. Of course, as usual the Fox "News" pundits supply him with an endless amount of material.

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Part 1

Rachel Maddow talks to former State Department lawyer under Condoleeza Rice, Philip Zelikow who says that the Bush administration attempted to destroy all copies of an alternative memo on interrogation techniques he wrote in 2005.

From Philip Zelikow's blog at Foreign Policy magazine The OLC "torture memos": thoughts from a dissenter:

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn't entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives.

Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:

• the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA's methods;

• the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.

• the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law -- whatever the alleged gain.

The underlying absurdity of the administration's position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail.

Part two below the fold.

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The panel on This Week wasn't much better than the one on Fox News Sunday with their whitewashing of torture and whether there should be investigations. The worst of them being George Will and Peggy Noonan. When asked about whether there will be prosecutions for those that devised the policies on torture George Will thought the Obama administration was striking the right "balance".

Will: Yes. His balance was right. Whether Congress will stick to it or not, the New York Times and others of that faction are inciting Congress have hearings on this and perhaps they will. Perhaps they should. The problem with transparency is it's transparent for the terrorists as well and as you had a clip on here of former Secretary of Homeland Security Chertoff saying, the bad guys train to resist what they know we can use and they are helped by when they are captured knowing what we cannot use. So this has a cost.

No George. They already knew that we were waterboarding. Your argument is bunk. You and Brit Hume really need to get with the program here. Next on the list is Cokie Roberts who is just oh so glad that those CIA tapes were destroyed.

Roberts: That's certainly true but we don't have, give them ammunition, and you know whoever at the CIA destroyed the tapes of the waterboarding, it was the wrong thing to do but I'm really glad they did it because I would hate to have those tapes out on the Internet and people uh, being using those because I think they would be wonderful recruiting tools for terrorists and the truth is we do wonderful work all around the world, this country, people in this country, organizations in this country, the US government get no credit for it, partly because of these kinds of techniques and just getting them out of there I think is just tremendously helpful.

So Cokie, do you really think that the terrorists don't know what went on because those tapes aren't there to watch? Do you really think this was not already a recruiting tool without the tapes? I fail to follow your logic here. The only thing not having the tapes out there assures is that the people who were in them are never held accountable for what they did.

Then we have Sam Donaldson who throws out the whole Nuremberg trials argument in one fell swoop by giving the CIA agents a pass who tortured prisoners.

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From the Situation Room April 21, 2009. Jane Harman is upset that her civil liberties may have been violated and wants to see those transcripts of the NSA wiretaps unredacted. So how's the support of the NSA's wiretapping working out for you now Representative?

I like Glenn Greenwald's take on this:

So if I understand this correctly -- and I'm pretty sure I do -- when the U.S. Government eavesdropped for years on American citizens with no warrants and in violation of the law, that was "both legal and necessary" as well as "essential to U.S. national security," and it was the "despicable" whistle-blowers (such as Thomas Tamm) who disclosed that crime and the newspapers which reported it who should have been criminally investigated, but not the lawbreaking government officials. But when the U.S. Government legally and with warrants eavesdrops on Jane Harman, that is an outrageous invasion of privacy and a violent assault on her rights as an American citizen, and full-scale investigations must be commenced immediately to get to the bottom of this abuse of power. Behold Jane Harman's overnight transformation from Very Serious Champion of the Lawless Surveillance State to shrill civil liberties extremist.