I want to focus on what the Comey emails actually demonstrate about what these DOJ torture memos really are

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What the new Jim Comey torture emails actually reveal

Just as they did with CIA reports on WMDs, Bush officials pressured DOJ lawyers to issue torture-authorizing memos.

Glenn Greenwald

Jun. 07, 2009 |

The New York Times was provided 3 extremely important internal Justice Department emails from April, 2005 (.pdf) -- all written by then-Deputy Attorney General Jim Comey -- which highlight how the Bush administration's torture techniques became legally authorized by Bush lawyers. As Marcy Wheeler documents, the leak to the NYT was clearly from someone eager to defend Bush officials by suggesting that Comey's emails prove that all DOJ lawyers --- even those opposed to torture on policy grounds -- agreed these techniques were legal, and the NYT reporters, Scott Shane and David Johnston, dutifully do the leakers' bidding by misleadingly depicting the Comey emails as vindication for Bush/Cheney (Headline: "U.S. Lawyers Agreed on the Legality of Brutal Tactic"; First Paragraph: "When Justice Department lawyers engaged in a sharp internal debate in 2005 over brutal interrogation techniques, even some who believed that using tough tactics was a serious mistake agreed on a basic point: the methods themselves were legal").

I defy anyone to read Comey's 3 emails and walk away with that conclusion. Marcy has detailed many of the reasons the NYT article is so misleading, so I want to focus on what the Comey emails actually demonstrate about what these DOJ torture memos really are. The primary argument against prosecutions for Bush officials who ordered torture is that DOJ lawyers told the White House that these tactics were legal, and White House officials therefore had the right to rely on those legal opinions. The premise is that White House officials inquired in good faith with the DOJ about what they could and could not do under the law, and only ordered those tactics which the DOJ lawyers told them were legal. As these Comey emails prove, that simply is not what happened.

The DOJ torture-authorizing memos are perfectly analogous to the CIA's pre-war intelligence reports about Iraq's WMDs. Bush officials justify their pre-war statements about WMDs by pointing to the CIA's reports -- as though those reports just magically appeared on their desks from the CIA -- when, as is well documented, Dick Cheney and friends were continuously pressuring and cajoling the CIA to give them those threat reports in order to supply bureaucratic justification for the attack on Iraq. That is exactly how the DOJ torture-authorizing memos came to be: Dick Cheney, David Addington and George Bush himself continuously exerted extreme pressure on DOJ lawyers to produce memos authorizing them to do what they wanted to do -- not because they were interested in knowing in good faith what the law did and did not allow, but because they wanted DOJ memos as cover -- legal immunity -- for the torture they had already ordered and were continuing to order. Though one won't find this in the NYT article, that is, far and away, the most important revelation from the Comey emails.

* * * * *

Just read the Comey emails for yourself -- they're not long -- and you'll see exactly how these DOJ torture memos were actually produced. The key excerpts tell the story as clearly as can be. Comey was vehemently opposed to a draft memo written by Acting OLC Chief Steven Bradbury -- ultimately dated May 10, 2005 (.pdf) -- that legally authorized the simultaneous, combined use of numerous "enhanced interrogation techniques" on detainees. This "combined techniques" memo was crucial because these were the tactics that had already been used on detainees, and -- after the prior OLC memos authorizing those tactics were withdrawn -- the White House was desperate for legal approval for what they had already done and what they wanted to do in the future.

Comey begins by noting that OLC lawyer Patrick Philbin had expressed numerous objections to the Bradbury memo -- all of which were being ignored in the rush to give the White House what it wanted:

Comey then noted that he, too, had "grave reservations" about the DOJ legal opinion:

Does that sound to you like there was unanimity in the DOJ about the legality of these methods?

As a result of his objections, Comey went to Attorney General Alberto Gonazles to urge that the memo not be approved, but Gonzales told him that he was under extreme pressure from Dick Cheney, David Addington, Harriet Miers -- and even Bush himself -- to get these memos issued:

Comey urged Gonzales to stop the approval of the "combined techniques" memo, warning it would "come back to haunt him":

The following day, Comey noted that the loyalty of DOJ lawyers lay with the White House, not with the Justice Department, and they were thus willing to comply with the demands of Cheney and Addington even at the expense of their duties as DOJ lawyers:

Most revealingly, Comey described exactly what was happening with this process: that the White House was demanding and pressuring the issuance of these memos, but that once the torture regime became public -- as Comey warned that it would -- White House officials would defend themselves by heaping the blame on Gonzales and other DOJ lawyers, deceitfully pretending that they were merely following in good faith DOJ advice about what was and was not legal:

Alluding to the extreme pressure that had previously been exerted by the White House on then-AG John Aschroft to legally authorize the illegal NSA spying program (the Ashcroft Hospital Drama), Comey lamented that even the minimal willingness of Ashcroft to defy White House pressure was completely lacking in the Gonzales-led DOJ and OLC -- meaning the White House was able to get legal authorization from the DOJ for whatever it wanted, regardless of whether it was actually legal:

This battle over these torture memos was occurring in preparation for a White House Principals Meeting -- to be attended by key Bush cabinet members -- to decide which interrogation tactics they would authorize. As Comey notes, White House officials knew full well that what they were authorizing and ordering were, in his words, "simply awful" -- as illustrated by the cowardly demand from Condoleezza Rice that the tactics they were to approve not be discussed in any detail at the meeting (click to enlarge):

Comey notes that there was a videotape of at least one of the interrogation sessions that would ensure that the full brutality of what they authorized would come to light -- but those videotapes, of course, were destroyed by the CIA in an act which even the 9/11 Commission co-Chairmen called "obstruction of justice."

Ultimately, Comey's pleas that Gonzales block approval of these tactics were ignored. Despite Gonzales' conveying Comey's arguments about how history would judge what they were doing, the White House Principals -- yet again -- approved all of the torture tactics in those memos:

* * * * *

It's worth noting that all of the officials involved in these events -- including Comey -- are right-wing ideologues appointed by George Bush. That's why they were appointed. The fact that Comey was willing to go along with approval of these tactics when used individually -- just as is true of his willingness to endorse a modified version of Bush's NSA warrantless eavesdropping program in the face of FISA -- hardly proves that there was a good-faith basis for the view that these individual tactics were legal.

But the real story here is obvious -- these DOJ memos authorizing torture were anything but the by-product of independent, good faith legal analysis. Instead, those memos -- just like the pre-war CIA reports about The Threat of Saddam -- were coerced by White House officials eager for bureaucratic cover for what they had already ordered. This was done precisely so that once this all became public, they could point to those memos and have the political and media establishment excuse what they did ("Oh, they only did what they DOJ told them was legal"'/"Oh, they were only reacting to CIA warnings about Saddam's weapons"). These DOJ memos, like the CIA reports, were all engineered by the White House to give cover to what they wanted to do; they were not the precipitating events that led to and justified those decisions. That is the critical point proven by the Comey emails, and it is completely obscured by the NYT article, which instead trumpets the opposite point ("Unanimity at DOJ that these tactics were legal") because that's the story their leaking sources wanted them to promote.

What's most ironic about what the NYT did here is that on the very same day this article appears, there is a column from the NYT Public Editor, Clark Hoyt, excoriating the paper for having published a deeply misleading front page story by Elizabeth Bumiller, that claimed that 1 out of 7 Guantanamo detainees returned to "jihad" once they are released. That happened because Bumiller followed the most common method of modern establishment reporting: she mindlessly repeated what her government sources told her to say. As Hoyt put it:

But the article on which he based that statement was seriously flawed and greatly overplayed. It demonstrated again the dangers when editors run with exclusive leaked material in politically charged circumstances and fail to push back skeptically. The lapse is especially unfortunate at The Times, given its history in covering the run-up to the Iraq war.

That is exactly what Shane and Johnston did with these Comey emails. Just as Bumiller did, they included some contrary facts buried deep in the article about Comey's objections, but the headline and the way the entire article was framed will create the impression -- as intended -- that there was unanimity among DOJ lawyers regarding the legality of the Bush interrogation program. Other journalists, too slothful to read the Comey emails themselves, will get the message and go forth and repeat it, and it will soon be conventional wisdom that "everyone" at the DOJ agreed these torture techniques were legal. Already this morning, here is George Stephanopolous' Twitter reaction to the NYT story:

Any rational and minimally well-informed person who actually read the Comey emails would walk away with the exact opposite point -- what is "stunning" was how extreme was the pressure from the White House to issue these memos and how compliant DOJ lawyers were to White House dictates. But that's how our media works: anonymous government officials tell them what to say; they write it down uncritically; and it then becomes conventional wisdom regardless of how false it is.

-- Glenn Greenwald"

The only thing that matters is whether one thinks that the actions he's undertaking are helpful or harmful. If they're harmful, one should criticize

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Facts and myths about Obama's preventive detention proposal

Is a system of indefinite detention with no charges a standard or radical idea?

Glenn Greenwald

May. 22, 2009 |

[Updated below - Update II (Interview with ACLU) - Update III - Update IV - Update V - Update VI]

In the wake of Obama's speech yesterday, there are vast numbers of new converts who now support indefinite "preventive detention." It thus seems constructive to have as dispassionate and fact-based discussion as possible of the implications of "preventive detention" and Obama's related detention proposals (military commissions). I'll have a podcast discussion on this topic a little bit later today with the ACLU's Ben Wizner, which I'll add below, but until then, here are some facts and other points worth noting:

(1) What does "preventive detention" allow?

It's important to be clear about what "preventive detention" authorizes. It does not merely allow the U.S. Government to imprison people alleged to have committed Terrorist acts yet who are unable to be convicted in a civilian court proceeding. That class is merely a subset, perhaps a small subset, of who the Government can detain. Far more significant, "preventive detention" allows indefinite imprisonment not based on proven crimes or past violations of law, but of those deemed generally "dangerous" by the Government for various reasons (such as, as Obama put it yesterday, they "expressed their allegiance to Osama bin Laden" or "otherwise made it clear that they want to kill Americans"). That's what "preventive" means: imprisoning people because the Government claims they are likely to engage in violent acts in the future because they are alleged to be "combatants."

Once known, the details of the proposal could -- and likely will -- make this even more extreme by extending the "preventive detention" power beyond a handful of Guantanamo detainees to anyone, anywhere in the world, alleged to be a "combatant." After all, once you accept the rationale on which this proposal is based -- namely, that the U.S. Government must, in order to keep us safe, preventively detain "dangerous" people even when they can't prove they violated any laws -- there's no coherent reason whatsoever to limit that power to people already at Guantanamo, as opposed to indefinitely imprisoning with no trials all allegedly "dangerous" combatants, whether located in Pakistan, Thailand, Indonesia, Western countries and even the U.S.

(2) Are defenders of Obama's proposals being consistent?

During the Bush years, it was common for Democrats to try to convince conservatives to oppose Bush's executive power expansions by asking them: "Do you really want these powers to be exercised by Hillary Clinton or some liberal President?"

Following that logic, for any Democrat/progressive/liberal/Obama supporter who wants to defend Obama's proposal of "preventive detention," shouldn't you first ask yourself three simple questions:

(a) what would I have said if George Bush and Dick Cheney advocated a law vesting them with the power to preventively imprison people indefinitely and with no charges?;

(b) when Bush and Cheney did preventively imprison large numbers of people, was I in favor of that or did I oppose it, and when right-wing groups such as Heritage Foundation were alone in urging a preventive detention law in 2004, did I support them?; and

(c) even if I'm comfortable with Obama having this new power because I trust him not to abuse it, am I comfortable with future Presidents -- including Republicans -- having the power of indefinite "preventive detention"?

(3) Questions for defenders of Obama's proposal:

There are many claims being made by defenders of Obama's proposals which seem quite contradictory and/or without any apparent basis, and I've been searching for a defender of those proposals to address these questions:

Bush supporters have long claimed -- and many Obama supporters are now insisting as well -- that there are hard-core terrorists who cannot be convicted in our civilian courts. For anyone making that claim, what is the basis for believing that? In the Bush era, the Government has repeatedly been able to convict alleged Al Qaeda and Taliban members in civilian courts, including several (Ali al-Marri, Jose Padilla, John Walker Lindh) who were tortured and others (Zacharais Moussaoui, Padilla) where evidence against them was obtained by extreme coercion. What convinced you to believe that genuine terrorists can't be convicted in our justice system?

For those asserting that there are dangerous people who have not yet been given any trial and who Obama can't possibly release, how do you know they are "dangerous" if they haven't been tried? Is the Government's accusation enough for you to assume it's true?

Above all: for those justifying Obama's use of military commissions by arguing that some terrorists can't be convicted in civilian courts because the evidence against them is "tainted" because it was obtained by Bush's torture, Obama himself claimed just yesterday that his military commissions also won't allow such evidence ("We will no longer permit the use of evidence -- as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods"). How does our civilian court's refusal to consider evidence obtained by torture demonstrate the need for Obama's military commissions if, as Obama himself claims, Obama's military commissions also won't consider evidence obtained by torture?

Finally, don't virtually all progressives and Democrats argue that torture produces unreliable evidence? If it's really true (as Obama defenders claim) that the evidence we have against these detainees was obtained by torture and is therefore inadmissible in real courts, do you really think such unreliable evidence -- evidence we obtained by torture -- should be the basis for concluding that someone is so "dangerous" that they belong in prison indefinitely with no trial? If you don't trust evidence obtained by torture, why do you trust it to justify holding someone forever, with no trial, as "dangerous"?

(4) Do other countries have indefinite preventive detention?

Obama yesterday suggested that other countries have turned to "preventive detention" and that his proposal therefore isn't radical ("other countries have grappled with this question; now, so must we"). Is that true?

In June of last year, there was a tumultuous political debate in Britain that sheds ample light on this question. In the era of IRA bombings, the British Parliament passed a law allowing the Government to preventively detain terrorist suspects for 14 days -- and then either have to charge them or release them. In 2006, Prime Minister Tony Blair -- citing the London subway attacks and the need to "intervene early before a terrorist cell has the opportunity to achieve its goals" -- wanted to increase the preventive detention period to 90 days, but MPs from his own party and across the political spectrum overwhelmingly opposed this, and ultimately increased it only to 28 days.

In June of last year, Prime Minister Gordon Brown sought an expansion of this preventive detention authority to 42 days -- a mere two weeks more. Reacting to that extremely modest increase, a major political rebellion erupted, with large numbers of Brown's own Labour Party joining with Tories to vehemently oppose it as a major threat to liberty. Ultimately, Brown's 42-day scheme barely passed the House of Commons. As former Prime Minister John Major put it in opposing the expansion to 42 days:

It is hard to justify: pre-charge detention in Canada is 24 hours; South Africa, Germany, New Zealand and America 48 hours; Russia 5 days; and Turkey 7½ days.

By rather stark and extreme contrast, Obama is seeking preventive detention powers that are indefinite -- meaning without any end, potentially permanent. There's no time limit on the "preventive detention." Compare that power to the proposal that caused such a political storm in Britain and what these other governments are empowered to do. The suggestion that indefinite preventive detention without charges is some sort of common or traditional scheme is clearly false.

(5) Is this comparable to traditional POW detentions?

When Bush supporters used to justify Bush/Cheney detention policies by arguing that it's normal for "Prisoners of War" to be held without trials, that argument was deeply misleading. And it's no less misleading when made now by Obama supporters. That comparison is patently inappropriate for two reasons: (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this "war" will not be over for decades, if ever, which means -- unlike for traditional POWs, who are released once the war is over -- these prisoners are going to be in a cage not for a few years, but for decades, if not life.

Traditional "POWs" are ones picked up during an actual military battle, on a real battlefield, wearing a uniform, while engaged in fighting. The potential for error and abuse in deciding who was a "combatant" was thus minimal. By contrast, many of the people we accuse in the "war on terror" of being "combatants" aren't anywhere near a "battlefield," aren't part of any army, aren't wearing any uniforms, etc. Instead, many of them are picked up from their homes, at work, off the streets. In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.

Anyone who doubts that should just look at how many Guantanamo detainees were accused of being "the worst of the worst" yet ended up being released because they did absolutely nothing wrong. Can anyone point to any traditional POW situation where so many people were falsely accused and where the risk of false accusations was so high? For obvious reasons, this is not and has never been a traditional POW detention scheme.

During the Bush era, that was a standard argument among Democrats, so why should that change now? Here is what Anne-Marie Slaughter -- now Obama's Director of Policy Planning for the State Department -- said about Bush's "POW" comparison on Fox News on November 21, 2001:

Military commissions have been around since the Revolutionary War. But they've always been used to try spies that we find behind enemy lines. It's normally a situation, you're on the battlefield, you find an enemy spy behind your lines. You can't ship them to national court, so you provide a kind of rough battlefield justice in a commission. You give them the best process you can, and then you execute the sentence on the spot, which generally means executing the defendant.

That's not this situation. It's not remotely like it.

As for duration, the U.S. government has repeatedly said that this "war" is so different from standard wars because it will last for decades, if not generations. Obama himself yesterday said that "unlike the Civil War or World War II, we can't count on a surrender ceremony to bring this journey to an end" and that we'll still be fighting this "war" "a year from now, five years from now, and -- in all probability -- 10 years from now." No rational person can compare POW detentions of a finite and usually short (2-5 years) duration to decades or life in a cage. That's why, yesterday, Law Professor Diane Marie Amann, in The New York Times, said this:

[Obama] signaled a plan by which [Guantanamo detainees] — and perhaps other detainees yet to be arrested? — could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention. That is not quite right: precedents do exist, among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America’s history under the Constitution.

There are many things that can be said about indefinitely imprisoning people with no charges who were not captured on any battlefield, but the claim that this is some sort of standard or well-established practice in American history is patently false.

(6) Is it "due process" when the Government can guarantee it always wins?

If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating. For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).

Giving trials to people only when you know for sure, in advance, that you'll get convictions is not due process. Those are called "show trials." In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals).

Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest). The Government picks and chooses which process you get in order to ensure that it always wins. A more warped "system of justice" is hard to imagine.

(7) Can we "be safe" by locking up all the Terrorists with no charges?

Obama stressed yesterday that the "preventive detention" system should be created only through an act of Congress with "a process of periodic review, so that any prolonged detention is carefully evaluated and justified." That's certainly better than what Bush did: namely, preventively detain people with no oversight and no Congressional authorization -- in violation of the law. But as we learned with the Military Commissions Act of 2006 and the Protect America Act of 2007, the mere fact that Congress approves of a radical policy may mean that it is no longer lawless but it doesn't make it justified. As Professor Amann put it: "no amount of procedures can justify deprivations that, because of their very nature violate the Constitution’s core guarantee of liberty." Dan Froomkin said that no matter how many procedures are created, that's "a dangerously extreme policy proposal."

Regarding Obama's "process" justification -- and regarding Obama's primary argument that we need to preventively detain allegedly dangerous people in order to keep us safe -- Digby said it best:

We are still in a "war" against a method of violence, which means there is no possible end and which means that the government can capture and imprison anyone they determine to be "the enemy" forever. The only thing that will change is where the prisoners are held and few little procedural tweaks to make it less capricious. (It's nice that some sort of official committee will meet once in a while to decide if the war is over or if the prisoner is finally too old to still be a "danger to Americans.")

There seems to be some misunderstanding about Guantanamo. Somehow people have gotten it into their heads is that it is nothing more than a symbol, which can be dealt with simply by closing the prison. That's just not true. Guantanamo is a symbol, true, but it's a symbol of a lawless, unconstitutional detention and interrogation system. Changing the venue doesn't solve the problem.

I know it's a mess, but the fact is that this isn't really that difficult, except in the usual beltway kabuki political sense. There are literally tens of thousands of potential terrorists all over the world who could theoretically harm America. We cannot protect ourselves from that possibility by keeping the handful we have in custody locked up forever, whether in Guantanamo or some Super Max prison in the US. It's patently absurd to obsess over these guys like it makes us even the slightest bit safer to have them under indefinite lock and key so they "can't kill Americans."

The mere fact that we are doing this makes us less safe because the complete lack of faith we show in our constitution and our justice systems is what fuels the idea that this country is weak and easily terrified. There is no such thing as a terrorist suspect who is too dangerous to be set free. They are a dime a dozen, they are all over the world and for every one we lock up there will be three to take his place. There is not some finite number of terrorists we can kill or capture and then the "war" will be over and the babies will always be safe. This whole concept is nonsensical.

As I said yesterday, there were some positive aspects to Obama's speech. His resolve to close Guantanamo in the face of all the fear-mongering, like his release of the OLC memos, is commendable. But the fact that a Democratic President who ran on a platform of restoring America's standing and returning to our core principles is now advocating the creation of a new system of indefinite preventive detention -- something that is now sure to become a standard view of Democratic politicians and hordes of Obama supporters -- is by far the most consequential event yet in the formation of Obama's civil liberties policies.

UPDATE: Here's what White House Counsel Greg Craig told The New Yorker's Jane Mayer in February:

"It’s possible but hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law," Craig said. "Our presumption is that there is no need to create a whole new system. Our system is very capable."

"The first President of the United States to introduce a preventive-detention law" is how Obama's own White House Counsel described him. Technically speaking, that is a form of change, but probably not the type that many Obama voters expected.

UPDATE II: Ben Wizner of the ACLU's National Security Project is the lead lawyer in the Jeppesen case, which resulted in the recent rejection by the 9th Circuit Court of Appeals of the Bush/Obama state secrets argument, and also co-wrote (along with the ACLU's Jameel Jaffer) a superb article in Salon in December making the case against preventive detention. I spoke with him this morning for roughly 20 minutes regarding the detention policies proposed by Obama in yesterday's speech. It can be heard by clicking PLAY on the recorder below. A transcript will be posted shortly.

UPDATE III: Rachel Maddow was superb last night -- truly superb -- on the topic of Obama's preventive detention proposal:

UPDATE IV: The New Yorker's Amy Davidson compares Obama's detention proposal to the internment of Japanese-Americans during World War II (as did Professor Amann, quoted above). Hilzoy, of The Washington Monthly, writes: "If we don't have enough evidence to charge someone with a crime, we don't have enough evidence to hold them. Period" and "the power to detain people without filing criminal charges against them is a dictatorial power." Salon's Joan Walsh quotes the Center for Constitutional Rights' Vincent Warren as saying: "They’re creating, essentially, an American Gulag." The Philadelphia Inquirer's Will Bunch says of Obama's proposal: "What he's proposing is against one of this country's core principles" and "this is why people need to keep the pressure on Obama -- even those inclined to view his presidency favorably."

UPDATE V: The Atlantic's Marc Ambinder -- who is as close to the Obama White House as any journalist around -- makes an important point about Obama that I really wish more of his supporters would appreciate:

[Obama] was blunt [in his meeting with civil libertiarians]; the [military commissions] are a fait accompli, so the civil libertarians can either help Congress and the White House figure out the best way to protect the rights of the accused within the framework of that decision, or they can remain on the outside, as agitators. That's not meant to be pejorative; whereas the White House does not give a scintilla of attention to its right-wing critics, it does read, and will read, everything Glenn Greenwald writes. Obama, according to an administration official, finds this outside pressure healthy and useful.

Ambinder doesn't mean me personally or exclusively; he means people who are criticizing Obama not in order to harm him politically, but in order to pressure him to do better. It's not just the right, but the duty, of citizens to pressure and criticize political leaders when they adopt policies that one finds objectionable or destructive. Criticism of this sort is a vital check on political leaders -- a key way to impose accountability -- and Obama himself has said as much many times before.

It has nothing to do with personalities or allegiances. It doesn't matter if one "likes" or "trusts" Obama or thinks he's a good or bad person. That's all irrelevant. The only thing that matters is whether one thinks that the actions he's undertaking are helpful or harmful. If they're harmful, one should criticize them. Where, as here, they're very harmful and dangerous, one should criticize them loudly. Obama himself, according to Ambinder, "finds this outside pressure healthy and useful." And it is. It's not only healthy and useful but absolutely vital.

UPDATE VI: Bearing in mind what Obama repeatedly pledged to do while running, this headline from The New York Times this morning is rather extraordinary:

As Greg Craig put it: "hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law."

-- Glenn Greenwald"

still the most powerful lobby on Capitol Hill. And they frankly own the place

TO BE NOTED: From Salon:

"Top Senate Democrat: bankers "own" the U.S. Congress Dick Durbin's confession ought to be major news, yet it won't be. Why not?

Glenn Greenwald

Apr. 30, 2009 |

Sen. Dick Durbin, on a local Chicago radio station this week, blurted out an obvious truth about Congress that, despite being blindingly obvious, is rarely spoken: "And the banks -- hard to believe in a time when we're facing a banking crisis that many of the banks created -- are still the most powerful lobby on Capitol Hill. And they frankly own the place." The blunt acknowledgment that the same banks that caused the financial crisis "own" the U.S. Congress -- according to one of that institution's most powerful members -- demonstrates just how extreme this institutional corruption is.

The ownership of the federal government by banks and other large corporations is effectuated in literally countless ways, none more effective than the endless and increasingly sleazy overlap between government and corporate officials. Here is just one random item this week announcing a couple of standard personnel moves:

Former Barney Frank staffer now top Goldman Sachs lobbyist

Goldman Sachs' new top lobbyist was recently the top staffer to Rep. Barney Frank, D-Mass., on the House Financial Services Committee chaired by Frank. Michael Paese, a registered lobbyist for the Securities Industries and Financial Markets Association since he left Frank's committee in September, will join Goldman as director of government affairs, a role held last year by former Tom Daschle intimate, Mark Patterson, now the chief of staff at the Treasury Department. This is not Paese's first swing through the Wall Street-Congress revolving door: he previously worked at JP Morgan and Mercantile Bankshares, and in between served as senior minority counsel at the Financial Services Committee.

So: Paese went from Chairman Frank's office to be the top lobbyist at Goldman, and shortly before that, Goldman dispatched Paese's predecessor, close Tom Daschle associate Mark Patterson, to be Chief of Staff to Treasury Secretary Tim Geithner, himself a protege of former Goldman CEO Robert Rubin and a virtually wholly owned subsidiary of the banking industry. That's all part of what Desmond Lachman -- American Enterprise Institute fellow, former chief emerging market strategist at Salomon Smith Barney and top IMF official (no socialist he) -- recently described as "Goldman Sachs's seeming lock on high-level U.S. Treasury jobs."

Meanwhile, the above-linked Huffington Post article which reported on Durbin's comments also notes Sen. Evan Bayh's previously-reported central role on behalf of the bankers in blocking legislation, hated by the banking industry, to allow bankruptcy judges to alter the terms of mortgages so that families can stay in their homes. Bayh is up for re-election in 2010, and here -- according to the indispensable Open Secrets site -- is Bayh's top donor:

Goldman is also the top donor to Bayh over the course of his Congressional career, during which Bayh has received more than $4 million from the finance, insurance and real estate sectors:

In a totally unrelated coincidence -- after the Government, as Matt Taibbi put it, enacted "a bailout program that has now figured three ways to funnel money to Goldman, Sachs"-- this is what happened earlier this month:

Goldman reports $1.8 billion profit

Goldman Sachs reported a much stronger-than-expected first-quarter profit Monday, bouncing back from its worst quarter as a public company. . . .

In reporting its results a day earlier than expected, New York-based Goldman said it earned $1.81 billion, or $3.39 a share, for the quarter ended March 31. Analysts surveyed by Thomson Financial were looking for a profit of $1.64 a share.

Goldman shares, which have surged more than 70% during the past month, continued rising late Monday, gaining about 4.7% for the day.

Nobody even tries to hide this any longer. The only way they could make it more blatant is if they hung a huge Goldman Sachs logo on the Capitol dome and then branded it onto the foreheads of leading members of Congress and executive branch officials.

Of course, ownership of the government is not confined to Goldman or even to bankers generally; legislation in virtually every area is written by the lobbyists dispatched by the corporations that demand it, and its passage then ensured by "representatives" whose pockets are stuffed with money from those same corporations. Just as one example, as Jane Hamsher reported about Bayh:

Bayh's little "lobbyist problem" is considered by many to be what tanked his Vice Presidential aspirations. His wife Susan earns about $837,000 a year serving on seven corporate boards, among them Wellpoint, a health insurance company for which Bayh helped secure a $24.7 million dollar grant. She's on the board of ETrade, even as Bayh is on the Senate Finance Committee.

Bayh wants people to believe he's a "moderate" who sits in the "center."

Center of K Street, maybe.

Meanwhile, the only citizen protests relating to this mass robbery are driven by anger at the government for treating bankers too harshly and unfairly -- one of the most classic manifestations of what Taibbi, in a separate piece, so aptly calls the "peasant mentality":

After all, the reason the winger crowd can’t find a way to be coherently angry right now is because this country has no healthy avenues for genuine populist outrage. It never has. The setup always goes the other way: when the excesses of business interests and their political proteges in Washington leave the regular guy broke and screwed, the response is always for the lower and middle classes to split down the middle and find reasons to get pissed off not at their greedy bosses but at each other. That’s why even people like [Glenn] Beck’s audience, who I’d wager are mostly lower-income people, can’t imagine themselves protesting against the Wall Street barons who in actuality are the ones who fucked them over. . . .

Actual rich people can’t ever be the target. It’s a classic peasant mentality: going into fits of groveling and bowing whenever the master’s carriage rides by, then fuming against the Turks in Crimea or the Jews in the Pale or whoever after spending fifteen hard hours in the fields. You know you’re a peasant when you worship the very people who are right now, this minute, conning you and taking your shit. Whatever the master does, you’re on board. When you get frisky, he sticks a big cross in the middle of your village, and you spend the rest of your life praying to it with big googly eyes. Or he puts out newspapers full of innuendo about this or that faraway group and you immediately salute and rush off to join the hate squad. A good peasant is loyal, simpleminded, and full of misdirected anger. And that’s what we’ve got now, a lot of misdirected anger searching around for a non-target to mis-punish . . . can’t be mad at AIG, can’t be mad at Citi or Goldman Sachs. The real villains have to be the anti-AIG protesters! After all, those people earned those bonuses! If ever there was a textbook case of peasant thinking, it’s struggling middle-class Americans burned up in defense of taxpayer-funded bonuses to millionaires. It’s really weird stuff.

One might think it would be a big news story for the second most-powerful member of the U.S. Senate to baldly state that the Congress is "owned" by the bankers who spawned the financial crisis and continue to dictate the government's actions. But it won't be. The leading members of the media work for the very corporations that benefit most from this process. Establishment journalists are integral and well-rewarded members of the same system and thus cannot and will not see it as inherently corrupt (instead, as Newsweek's Evan Thomas said, their role, as "members of the ruling class," is to "prop up the existing order," "protect traditional institutions" and "safeguard the status quo").

That Congress is fully owned and controlled by a tiny sliver of narrow, oligarchical, deeply corrupted interests is simultaneously so obvious yet so demonized (only Unserious Shrill Fringe radicals, such as the IMF's former chief economist, use that sort of language) that even Durbin's explicit admission will be largely ignored. Even that extreme of a confession (Durbin elaborated on it with Ed Schultz last night) hardly causes a ripple.

* * * * * *

Here's Jane Hamsher, with Rachel Maddow, in February, assessing the motives of people like Evan Bayh and analyzing who owns and controls them (begins at the 3:00 minute mark):

-- Glenn Greenwald"

Drug policy is being more openly debated than ever before in the U.S.

TO BE NOTED: From Salon:

To print this page, select "Print" from the File menu of your browser

---

The success of drug decriminalization in Portugal

The new report on drug policy is available online now. Also: what will the Obama DOJ do today about still-secret torture memos?

Glenn Greenwald

Apr. 02, 2009 |

(updated below - Update II - Update III)

My report for the Cato Institute on the effects of full-scale drug decriminalization in Portugal -- the background for which I wrote about here -- is now available online. It can be read here, and the .pdf is here. I'll be at Cato tomorrow to present the report at noon, and the event can be watched live here. Drug policy is being more openly debated than ever before in the U.S. (Time 's Joe Klein just wrote a column advocating marijuana legalization), and the unambiguous success of Portugal's 2001 decriminalization -- which is what enabled the Portuguese Government to address their exploding drug problems in the 1990s and to achieve far better results than virtually every other Western country -- provides a compelling empirical basis for understanding the profound failures of the American approach.

I'm traveling today and it's unlikely I'll be able to write again, but today is the deadline for the Obama DOJ either to release 3 key, still-secret OLC torture memos or explain to the court why they refuse to do so. A report two weeks ago from Newsweek's Michael Isikoff (which quoted an anonymous Obama official as describing the memos as "ugly") claimed that Obama had disregarded the emphatic objections from ex-CIA Director Michael Hayden and others in the intelligence community and had decided to disclose the documents in full, but a New York Times article this week indicated that no decision has been made because of very adamant objections to disclosure from the likes of Obama counter-terrorism adviser John Brennan (whose pending appointment to be CIA Director, it's worth recalling, was opposed precisely because he was clearly an advocate for some of the worst CIA abuses of the Bush era).

I will have an interview with the ACLU's Jameel Jaffer, lead counsel in the ACLU's litigation to compel disclosure of these documents, as soon as the ACLU receives the response from the DOJ. As always, it's worth underscoring here that most of the work to compel disclosure of Bush-era secrets has been, and still is being, performed not by our establishment media or the Congress -- both of whose responsibility it is do so -- but by the ACLU and similar organizations using the power of FOIA requests and litigations to extract these secrets (it was the ACLU's lawsuit, for instance, which compelled the release of the 9 OLC memos last month which were so extreme and caused such furor).

Finally, as a reminder: I'll be on Bill Moyers' Journal tomorrow night, along with Democracy Now's Amy Goodman, talking about the establishment and independent media. Local listings are here.

UPDATE: I just learned from the ACLU that the Obama DOJ has requested yet another extension of the deadline to disclose these documents, indicating -- at the very least -- that they are not yet committed to disclosure and nothing will happen today. It remains to be seen how long their extension will be, but given how many extensions they've already sought and obtained, it is likely it will be a very short one. These OLC memos are probably the most vivid and inflammatory of all the DOJ torture-authorizing documents, and there is clearly concern in the Obama administration that their release with only further inflame the demands for investigations and prosecutions. Needless to say, that is not a legitimate basis for withholding critical government documents, particularly ones that purported to authorize blatant war crimes.

UPDATE II: I'll be on C-SPAN's Washington Journal tomorrow morning (Friday) from 8:00-8:45 a.m. The program is also streamed live online here, and the program will be archived on C-SPAN's site shortly thereafter.

UPDATE III: My segment on Washington Journal this morning, which I think was actually more substantive than most televisions discussions (the questions from the host and call-in audience were almost uninformly quite good), can be viewed here."

that is genuinely courageous and principled, but Jim Webb's impassioned commitment to fundamental prison reform is exactly that.

TO BE NOTED: From Salon:

"Jim Webb's courage v. the "pragmatism" excuse for politicians Political leaders have a far greater ability to change public opinion than they want people to believe they have.

Glenn Greenwald

Mar. 28, 2009 |

(updated below)

There are few things rarer than a major politician doing something that is genuinely courageous and principled, but Jim Webb's impassioned commitment to fundamental prison reform is exactly that. Webb's interest in the issue was prompted by his work as a journalist in 1984, when he wrote about an American citizen who was locked away in a Japanese prison for two years under extremely harsh conditions for nothing more than marijuana possession. After decades of mindless "tough-on-crime" hysteria, an increasingly irrational "drug war," and a sprawling, privatized prison state as brutal as it is counter-productive, America has easily surpassed Japan -- and virtually every other country in the world -- to become what Brown University Professor Glenn Loury recently described as a "a nation of jailers" whose "prison system has grown into a leviathan unmatched in human history."

What's most notable about Webb's decision to champion this cause is how honest his advocacy is. He isn't just attempting to chip away at the safe edges of America's oppressive prison state. His critique of what we're doing is fundamental, not incremental. And, most important of all, Webb is addressing head-on one of the principal causes of our insane imprisonment fixation: our aberrational insistence on criminalizing and imprisoning non-violent drug offenders (when we're not doing worse to them). That is an issue most politicians are petrified to get anywhere near, as evidenced just this week by Barack Obama's adolescent, condescending snickering when asked about marijuana legalization, in response to which Obama gave a dismissive answer that Andrew Sullivan accurately deemed "pathetic." Here are just a few excerpts from Webb's Senate floor speech this week (.pdf) on his new bill to create a Commission to study all aspects of prison reform:

Let's start with a premise that I don't think a lot of Americans are aware of. We have 5% of the world's population; we have 25% of the world's known prison population. We have an incarceration rate in the United States, the world's greatest democracy, that is five times as high as the average incarceration rate of the rest of the world. There are only two possibilities here: either we have the most evil people on earth living in the United States; or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice. . . .

The elephant in the bedroom in many discussions on the criminal justice system is the sharp increase in drug incarceration over the past three decades. In 1980, we had 41,000 drug offenders in prison; today we have more than 500,000, an increase of 1,200%. The blue disks represent the numbers in 1980; the red disks represent the numbers in 2007 and a significant percentage of those incarcerated are for possession or nonviolent offenses stemming from drug addiction and those sorts of related behavioral issues. . . .

In many cases these issues involve people’s ability to have proper counsel and other issues, but there are stunning statistics with respect to drugs that we all must come to terms with. African-Americans are about 12% of our population; contrary to a lot of thought and rhetoric, their drug use rate in terms of frequent drug use rate is about the same as all other elements of our society, about 14%. But they end up being 37% of those arrested on drug charges, 59% of those convicted, and 74% of those sentenced to prison by the numbers that have been provided by us. . . .

Another piece of this issue that I hope we will address with this National Criminal Justice Commission is what happens inside our prisons. . . . We also have a situation in this country with respect to prison violence and sexual victimization that is off the charts and we must get our arms around this problem. We also have many people in our prisons who are among what are called the criminally ill, many suffering from hepatitis and HIV who are not getting the sorts of treatment they deserve.

Importantly, what are we going to do about drug policy - the whole area of drug policy in this country?

And how does that affect sentencing procedures and other alternatives that we might look at?

Webb added that "America's criminal justice system has deteriorated to the point that it is a national disgrace" and "we are locking up too many people who do not belong in jail."

It's hard to overstate how politically thankless, and risky, is Webb's pursuit of this issue -- both in general and particularly for Webb. Though there has been some evolution of public opinion on some drug policy issues, there is virtually no meaningful organized constituency for prison reform. To the contrary, leaving oneself vulnerable to accusations of being "soft on crime" has, for decades, been one of the most toxic vulnerabilities a politician can suffer (ask Michael Dukakis). Moreover, the privatized Prison State is a booming and highly profitable industry, with an army of lobbyists, donations, and other well-funded weapons for targeting candidates who threaten its interests.

Most notably, Webb is in the Senate not as an invulnerable, multi-term political institution from a safely blue state (he's not Ted Kennedy), but is the opposite: he's a first-term Senator from Virginia, one of the "toughest" "anti-crime" states in the country (it abolished parole in 1995 and is second only to Texas in the number of prisoners it executes), and Webb won election to the Senate by the narrowest of margins, thanks largely to George Allen's macaca-driven implosion. As Ezra Klein wrote, with understatement: "Lots of politicians make their name being anti-crime, which has come to mean pro-punishment. Few make their name being pro-prison reform."

For a Senator like Webb to spend his time trumpeting the evils of excessive prison rates, racial disparities in sentencing, the unjust effects of the Drug War, and disgustingly harsh conditions inside prisons is precisely the opposite of what every single political consultant would recommend that he do. There's just no plausible explanation for what Webb's actions other than the fact that he's engaged in the noblest and rarest of conduct: advocating a position and pursuing an outcome because he actually believes in it and believes that, with reasoned argument, he can convince his fellow citizens to see the validity of his cause. And he is doing this despite the fact that it potentially poses substantial risks to his political self-interest and offers almost no prospect for political reward. Webb is far from perfect -- he's cast some truly bad votes since being elected -- but, in this instance, not only his conduct but also his motives are highly commendable.

* * * * *

Webb's actions here underscore a broader point. Our political class has trained so many citizens not only to tolerate, but to endorse, cowardly behavior on the part of their political leaders. When politicians take bad positions, ones that are opposed by large numbers of their supporters, it is not only the politicians, but also huge numbers of their supporters, who step forward to offer excuses and justifications: well, they have to take that position because it's too politically risky not to; they have no choice and it's the smart thing to do. That's the excuse one heard for years as Democrats meekly acquiesced to or actively supported virtually every extremist Bush policy from the attack on Iraq to torture and warrantless eavesdropping; it's the excuse which even progressives offer for why their political leaders won't advocate for marriage equality or defense spending cuts; and it's the same excuse one hears now to justify virtually every Obama "disappointment."

Webb's commitment to this unpopular project demonstrates how false that excuse-making is -- just as it was proven false by Russ Feingold's singular, lonely, October, 2001 vote against the Patriot Act and Feingold's subsequent, early opposition to the then-popular Bush's assault on civil liberties, despite his representing the purple state of Wisconsin. Political leaders have the ability to change public opinion by engaging in leadership and persuasive advocacy. Any cowardly politician can take only those positions that reside safely within the majoritiarian consensus. Actual leaders, by definition, confront majoritarian views when they are misguided and seek to change them, and politicians have far more ability to affect and change public opinion than they want the public to believe they have.

The political class wants people to see them as helpless captives to immutable political realities so that they have a permanent, all-purpose excuse for whatever they do, so that they are always able to justify their position by appealing to so-called "political realities." But that excuse is grounded in a fundamentally false view of what political leaders are actually capable of doing in terms of shifting public opinion, as NYU Journalism Professor Jay Rosen explained when I interviewed him about his theories of how political consensus is maintained and manipulated:

GG: One of the points you make is that it's not just journalists who define what these spheres [of consensus, legitimate debate and deviance] encompass. You argue that politicians, political actors can change what's included in these spheres based on the positions that they take. And in some sense, you could even say that that's kind of what leadership is -- not just articulating what already is within the realm of consensus, which anyone can do, but taking ideas that are marginalized or within the sphere of deviance and bringing them into the sphere of legitimacy. How does that process work? How do political actors change those spheres?

JR: Well, that's exactly what leadership is. And I think it's crippling sometimes to our own sense of efficacy in politics and media, if we assume that the media has all of the power to frame the debate and decide what consensus is, and consign things to deviant status. That's not really true. That's true under conditions of political immobilization, leadership default, a rage for normalcy, but in ordinary political life, leaders, by talking about things, make them legitimate. Parties, by pushing for things, make them part of the sphere of debate. Important and visible people can question consensus, and all of a sudden expand it. These spheres are malleable; if the conversation of democracy is alive and if you make your leaders talk about things, it becomes valid to talk about them.

And I really do think there's a self-victimization that sometimes goes on, but to go back to the beginning of your question, there's something else going on, which is the ability to infect us with notions of what's realistic is one of the most potent powers press and political elites have. Whenever we make that kind of decision -- "well it's pragmatic, let's be realistic" -- what we're really doing is we're speculating about other Americans, our fellow citizens, and what they're likely to accept or what works on them or what stimuli they respond to. And that way of seeing other Americans, fellow citizens, is in fact something the media has taught us; that is one of the deepest lessons we've learned from the media even if we are skeptics of the MSM.

And one of the things I see on the left that really bothers me is the ease with which people skeptical of the media will talk about what the masses believe and how the masses will be led and moved in this way that shows me that the mass media tutors them on how to see their fellow citizens. And here the Internet again has at least some potential, because we don't have to guess what those other Americans think. We can encounter them ourselves, and thereby reshape our sense of what they think. I think every time people make that judgment about what's realistic, what they're really doing is they're imagining what the rest of the country would accept, and how other people think, and they get those ideas from the media.

We've been trained how we talk about our political leaders primarily by a media that worships political cynicism and can only understand the world through political game-playing. Thus, so many Americans have been taught to believe not only that politicians shouldn't have the obligation of leadership imposed on them -- i.e., to persuade the public of what is right -- but that it's actually smart and wise of them to avoid positions they believe in when doing so is politically risky.

People love now to assume the role of super-sophisticated political consultant rather than a citizen demanding actions from their representatives. Due to the prism of gamesmanship through which political pundits understand and discuss politics, many citizens have learned to talk about their political leaders as though they're political strategists advising their clients as to the politically shrewd steps that should be taken ("this law is awful and unjust and he was being craven by voting for it, but he was absolutely right to vote for it because the public wouldn't understand if he opposed it"), rather than as citizens demanding that their public servants do the right thing ("this law is awful and unjust and, for that reason alone, he should oppose it and show leadership by making the case to the public as to why it's awful and unjust").

It may be unrealistic to expect most politicians in most circumstances to do what Jim Webb is doing here (or what Russ Feingold did during Bush's first term). My guess is that Webb, having succeeded in numerous other endeavors outside of politics, is not desperate to cling to his political office, and he has thus calculated that he'd rather have six years in the Senate doing things he thinks are meaningful than stay there forever on the condition that he cowardly renounce any actual beliefs. It's probably true that most career politicians, possessed of few other talents or interests, are highly unlikely to think that way.

But the fact that cowardly actions from political leaders are inevitable is no reason to excuse or, worse, justify and even advocate that cowardice. In fact, the more citizens are willing to excuse and even urge political cowardice in the name of "realism" or "pragmatism" ("he was smart to take this bad, unjust position because Americans are too stupid or primitive for him to do otherwise and he needs to be re-elected"), the more common that behavior will be. Politicians and their various advisers, consultants and enablers will make all the excuses they can for why politicians do what they do and insist that public opinion constrains them to do otherwise. That excuse-making is their role, not the role of citizens. What ought to be demanded of political officials by citizens is precisely the type of leadership Webb is exhibiting here.

UPDATE: Two related points:

(1) John Cole attacks those who were angry about Obama's marijuana answer by arguing that it was unrealistic to expect Obama to say "yes" to the question. But as I told Cole in an email just now, I don't think anyone expected him to advocate legalization or was angry that he didn't. It was his mocking, childish snickering about the issue and his refusal to address it seriously (even if to explain why he didn't favor legalization) that prompted the objections. My email to Cole is here.

(2) An angry emailer chides me for calling Webb's proposal one of "prison reform," as that actually diminishes the scope of what Webb is doing, and says instead that Webb's proposal is really one to reform the entire criminal justice system. Prison reform is just one of several critical (and politically difficult) issues Webb is addressing. It's a fair point, as Webb's own website -- which describes his bill as one to "overhaul America's criminal justice system -- makes clear.

Email to John Cole

I don't think any expected Obama to say he favored legalization or was upset that he didn't.

I think most people were angry over his mocking, dismissive tone in answering -- especially the obnoxious suggestion that the only people who would care about the issue must be pot heads. The accusation that only drug addicts favor legalization has long been one of the primary impediments to serious discussions of the issue. I think people were disappointed that Obama, whose primary virtue (in my view) is a willingness to treat Americans like they can handle adult discussions, seemed to reinforce that stupidity.

You're right that Obama has never advocated legalization before. Actually, he's explicitly rejected it. But he has been much more nuanced in drug discussions -- talking about addiction as a health not a criminal problem, objecting to the crack/coke sentencing disparities, even hinting at decriminalization. This was the first time as President he was addressing drug policy questions -- and he did it in a way that he got to choose how he talked about it, since he brought up the question.

And instead of a serious discussion, he snickered with the crowd over the mere mention of pot and sarcastically dismissed the whole thing as unimportant. It was a wasted opportunity to address a very significant problem, and out of character for how he normally handles those things.

-- Glenn Greenwald

Could The Government Give Greenwald A Break?

Glenn Greenwald with another dog bites man story:

"In the most unsurprising revelation imaginable, two former Army Reserve Arab linguists for the National Security Agency have said that they routinely eavesdropped on — “and recorded and transcribed” — the private telephone calls of American citizens who had absolutely nothing to do with terrorism."

Read on if you can stomach it.