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http://writ.lp.findlaw.com/dean/20090501.html

Friday, May 1, 2009 | FindLaw's WRIT

By JOHN W. DEAN
John W. Dean, a FindLaw columnist, is a former counsel to the president.

Harold Bruff is a former U.S. Department of Justice Office of Legal Counsel (OLC) attorney; currently, he is a professor of law (and former Dean) at the University of Colorado (Boulder) Law School. In his new book, Bad Advice: Bush's Lawyers In The War On Terror, Bruff has taken a critical look at the legal advice provided to President Bush and Vice President Cheney to deal with their "war on terror." His findings, as reported in the book, are not pretty. (I discovered Professor Bruff's book when browsing the University of Kansas Press catalogue. The Press is the future publisher of a work-in-progress that I am co-authoring with a young historian about the Watergate cover-up trial.)

Part I of Bad Advice examines the role of lawyers who are advising presidents. This material is timeless. Part II looks at the post-9/11 legal advice Bush was given regarding dealing with terrorists and terrorism. In particular, it addresses advice on matters such as the legality of warrantless surveillance by the National Security Agency, the indefinite detention of enemy combatants, evading the Geneva Conventions, conducting military (not civilian) trials of detainees, and employing aggressive interrogation techniques. This material could not be timelier.

Given Harold Bruff's considerable experience and professional credentials, not to mention the objectivity and candor of his analysis, his findings are disquieting to say the least. Rather than review his book, however, I thought it might be more interesting to seek answers from him to a few of the questions that had occurred to me when I was reading the book. The University of Kansas Press arranged for me to contact Professor Bruff, and our exchange went as follows:

QUESTION: At the outset of your book, after noting its timeless nature of problems in advising the powerful, you raise the question regarding what behaviors – and you use the plural – should be expected, if not demanded, of lawyers serving an "insistent" client, and in the context of your study, a client who is a head of state?

ANSWER: The most important behavior is adherence to the simple ethical rule that governs all American lawyers. They must "exercise independent professional judgment and render candid advice" to the client. Important and insistent clients, such as Presidents, may put heavy pressure on their lawyers to provide advice that serves policy goals, whatever the law might be. Accordingly, the lawyer really has two quite difficult tasks. First, he or she must have the courage, and the detachment from policy agendas, to say what the law requires, even if that advice is unwelcome. Second, the lawyer needs to have the skill to persuade a powerful client that this advice should be received and considered, even if the client is under no obligation to seek or follow the lawyer's advice.

QUESTION: Let's turn to Part II of your book, where you address the "bad advice" Bush received from his lawyers. Appropriately, much of your attention focuses on the post-9/11 "War Council," which was made up of White House Counsel Alberto Gonzales and his deputy Tim Flanigan, Dick Cheney's counsel David Addington, Defense Department General Counsel Jim Haynes, and John Yoo from OLC. Tell me about the War Council. Was it really giving legal advice, or was it, more often, advocating? If the latter, what happened to OLC that it would join in advocacy, rather than following its long tradition of offering the most solid legal advice that might be found within the Executive Branch government? Did fear cause this, meaning did the terrorists manage to terrorize these key government lawyers, causing them to overreact? Or was it OLC pleasing the White House, giving them whatever they wanted? What do you mean by saying it gave "bad" advice? It strikes me that you could mean inadequate, if not wicked or evil – or all of them. Would you explain what you mean by bad advice?

ANSWER: The War Council's role is revealed by its name. It never showed any detachment from the policy goals of its clients. It became an advocate for any theory of law, no matter how implausible, that would allow what the administration wanted to do, for example harsh interrogation. It is clear that this attitude resulted from fear of another terrorist attack and the resulting pressure that was felt throughout the administration to do anything that might prevent one. The bad advice did not result from bad or evil intentions. Instead, these were patriotic lawyers striving in good faith to help win the terror war. But they lost sight of the essential nature of the lawyer's role. Another reason the War Council became so extreme was that it short-circuited normal bureaucratic checks that subject proposed legal advice to review by senior officials, such as the Attorney General, who can be expected to display good judgment. Instead, a group of junior lawyers, headed by a White House Counsel who was new to these issues, formed advice in a hothouse environment that excluded external influences.

QUESTION: Is there a common thread that runs through the bad advice that Bush's lawyers provided him for dealing with terrorists?

ANSWER: Yes, many of the memos followed the same four-part strategy. First, they used only legal precedents relating to war and foreign policy, because those precedents support broad executive power, although the terror war has domestic aspects as well. Second, they read constitutional provisions that empower the President extremely broadly, and provisions that might constrain him very narrowly. Third, they used the same approach to statutes, reading those authorizing executive action very broadly and those constraining the executive very narrowly. And fourth, they invoked legal canons of construction in ways that supported the preceding two parts of the strategy. The overall effect was to claim almost unlimited executive power, and to minimize the potential role of the other two constitutional branches of government.

QUESTION: As you note in the book, the envelope was pushed – and then pushed some more – regarding warrantless electronic surveillance after 9/11 with the Bush Administration all but ignoring the Foreign Intelligence Surveillance Act. In this situation, however, the bad advice that the government lawyers were giving was accepted by several legal departments of telecommunications companies, who actually did the dirty work. How do you explain the willingness of non-government lawyers to join government lawyers in acting outside the law?

ANSWER: The Administration put the lawyers for the companies in a very difficult position. The companies were told that the President considered this operation vital to national security, that the reasons for this judgment were state secrets and could not be revealed, and that the program had been determined to be legal by the Administration's lawyers. Lawyers for the companies had little choice other than to accept these assertions.

QUESTION: As you know, John Yoo had written a number of law journal articles about the very subject he would find himself writing legal opinions on after 9/11 when he happened to have returned to government service. Per chance did you look at his law journal articles to see how much cut-and-pasting he did, taking material from his journal articles and inserting them into his opinions?

ANSWER: John Yoo has held his extreme theories of executive power since he was a law professor before joining OLC, and has never recanted. Comparison of his OLC memos with the position he took in his academic book, The Powers of War and Peace (which summarizes his earlier articles) and his revealingly titled memoir, War by Other Means, shows complete consistency of viewpoint. What he did not reveal to his government clients, however, is that his positions enjoy little support from other scholars, and that there is a great weight of authority against them. Within OLC, Yoo seems to have received little supervision from Jay Bybee, his nominal superior. Yoo had been working at OLC for months when Bybee arrived, and had already written some important memos. Although some memos show editing that was presumably from Bybee, John Yoo's influence remained dominant throughout his time at OLC.


QUESTION: Did you read anything in the U.S. Supreme Court's decisions dealing with the efforts of the Bush government to keep detainees out of the reach of American courts, more specifically Hamdi v. Rumsfelf, Rasul v. Bush and Rumsfeld v. Padilla, that suggested the Court was sending a message to government lawyers that they had crossed the line?

ANSWER: An early OLC memo concluded that American courts could not issue writs of habeas corpus to the base at Guantanamo, Cuba, because it was outside the jurisdiction of the federal courts. The Supreme Court rejected this position in Rasul, but the question was not an easy one and this OLC advice was a competent and balanced treatment of the issue. Hamdi rebuked the Administration for arguing that the detainees were not entitled to any process at all to determine whether they were actually enemy combatants or innocent civilians. The OLC memos never directly grappled with the question of minimal process for the detainees, and they should have done so.

QUESTION: Not all government lawyers were giving bad advice. What should – or could -- those lawyers who knew that the War Council team was giving bad advice do that they did not do? Or did they do all they could?

ANSWER: Government lawyers who knew the advice was bad resisted as best they could. Uniformed lawyers in the military were especially brave and forthright in their resistance. The War Council either excluded them or steamrolled them. It got the power to do so from the support of Vice President Cheney.

QUESTION: Of late, the bad legal advice that has been getting the most attention has been contained in newly-released OLC opinions regarding "alternative interrogation techniques" – sometimes better known as torture. These documents were released after your book was published, although you discuss the legal advice regarding interrogation at some length. Was there anything in these new memos that changed your views, by which I mean was the advice better or worse or more of the same?

ANSWER: I had some of the memos giving general legal advice about interrogation, such as the notorious "torture memo" of August, 2002. I did not have the memos giving detailed and dismaying advice about particular techniques, such as waterboarding. The general conclusions of the detail memos could be inferred, however, from what happened to the detainees. What makes these newly released memos even worse than the others is that the lawyers were clearly letting their advice be driven by techniques interrogators asked to use. There is no sign of lawyerly restraint.

QUESTION: Do you believe any of these lawyers should be prosecuted, either here or abroad, for war crimes?

ANSWER: The recently-disclosed memos suggest that the lawyers were accomplices in actions that they knew were illegal. Nevertheless, when prosecutors decide whether to charge anyone, they should consider the serious risks that criminal liability would deter desirable behavior in the future. Much legal advice to Presidents occurs under severe time pressure that limits the opportunity to provide thorough legal analysis. For many of the issues, there are few clear precedents to guide the lawyers. Also, the lawyers know that they will be judged with all the unfairness of hindsight. Therefore, it would be easy to make the President's lawyers too cautious for the good of the nation when they are asked to give advice under great pressure of time and uncertainty.

QUESTION: Based on your detailed review of the legal advice given Bush to deal with terrorists, if you were the head of the Office of Professional Responsibility at the Department of Justice (which is, in fact, about to issue a report) what would you recommend, if anything, regarding the conduct of the lawyers involved in all this bad advice?

ANSWER: The Office is authorized to refer its recommendations to state bar associations, which have jurisdiction to impose sanctions on lawyers who fail to give candid and independent legal advice. There is a wide range of available sanctions, from reprimand to disbarment. Because of the problem of over-deterrence, the bar authorities should not take action unless serious and repeated ethical lapses are shown. Since regulation of lawyers by state bars is usually regarded as rather weak, the over-deterrence problem should be minimized. At the same time, there is a need to buttress the central obligation to provide independent legal advice against the constant pressure to say yes to anything.—

http://rawstory.com/08/blog/2009/05/01/john-dean-rice-may-have-admitted-to-conspiracy/

By David Edwards and John Byrne


May 1, 2009 | Raw Story

In little-noticed comments Thursday, the former White House counsel for President Richard Nixon John Dean said Thursday that former Secretary of State Condoleezza Rice may have unwittingly admitted to a criminal conspiracy when questioned about torture by a group of student videographers at Stanford.
Rice told students at Stanford that she didn’t authorize torture, she merely forwarded the authorization for it. Dean, who became a poster child for whistleblowing after aiding the prosecution of the Watergate affair, told MSNBC’s Keith Olbermann that Rice may have admitted to a criminal conspiracy.

In a video that surfaced Thursday, Rice said, “The president instructed us that nothing we would do would be outside of our obligation, legal obligations under the convention against torture… I conveyed the authorization of the administration to the agency. And so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.” (Video of Rice’s comments appears at the bottom of this article.)

Her comments raised eyebrows from online observers, who compared Rice’s answer to that of Richard Nixon’s infamous quip: “When the President does it, that means that it’s not illegal.”

Dean said he found Rice’s comments “surprising” and put her in a legal mire of possible conspiracy.

“She tried to say she didn’t authorize anything, then proceeded to say she did pass orders along to the CIA to engage in torture if it was legal by the standard of the Department of Justice,” Dean said. “This really puts her right in the middle of a common plan, as it’s known in international law, or a conspiracy, as it’s known in American law, and this indeed is a crime. If it indeed happened the way we think it did happen.”

Asked if the comparison between her comments and Nixon’s were fair, Dean said it was “fuzzy.”

“She was obviously trying to extricate herself and keep herself in a safe distance, that she was only operating under some general guidance of the president making things legal,” he said. “So it’s not clear whether this is a full-throated Nixonian-type defense or whether it’s a lot of confusion of the facts and throwing things up there to try to protect herself.”

“These kinds of statements are going to come back and be interesting to any investigator,” he added.

Olbermann asked Dean whether Obama was violating the Geneva Conventions prohibiting torture himself by refusing to prosecute those responsible.

“He is indeed is in violation if the United States does not undertake investigation of this, or ultimately prosecution, if that’s necessary,” Dean asserted. “It’s not only the Geneva Convention, the Convention Against Torture also requires this. There are no exceptions with torture. There are no real things like “torture light.” The world community I think is going to hold the United States responsible, and if we don’t proceed, somebody is going to proceed.”

This video is from MSNBC’s Countdown, broadcast Apr. 30, 2009:
Download video via RawReplay.com


This video is from The Young Turks via YouTube, broadcast Apr. 30, 2009:
Download video via RawReplay.com

Published - May 10 2009 01:57PM EDT

By MICHAEL J. SNIFFEN - Associated Press Writer

Dick Cheney made clear Sunday he'd rather follow firebrand broadcaster Rush Limbaugh than former Joint Chiefs chairman Colin Powell into political battle over the future of the Republican Party.

Even as Cheney embraced efforts to expand the party by ex-Govs. Jeb Bush of Florida and Mitt Romney of Massachusetts and the House's No. 2 Republican, Virginia Rep. Eric Cantor, the former vice president appeared to write his one-time colleague Powell out of the GOP.

Asked about recent verbal broadsides between Limbaugh and Powell, Cheney said, "If I had to choose in terms of being a Republican, I'd go with Rush Limbaugh. My take on it was Colin had already left the party. I didn't know he was still a Republican."

Powell, who was secretary of state under President George W. Bush and held the nation's top military post under President George H.W. Bush, endorsed Democrat Barack Obama for president last year. Nonetheless, since the election he has described himself as a Republican and a right-of-center conservative, though "not as right as others would like."

Cheney, citing Powell's backing of Obama over Republican nominee John McCain, said, "I assumed that that is some indication of his loyalty and his interests."

Cheney's remarks on CBS' "Face the Nation" were the latest step in his slow-motion estrangement from Powell since the two worked closely together to manage the Persian Gulf war in 1991 _ Powell as the Army general who was chairman of the Joint Chiefs of Staff and Cheney as defense secretary for the elder Bush.

Under the younger Bush, Powell initially backed action against Iraq's Saddam Hussein and delivered a famous U.N. speech laying out the U.S. case. But Powell and Cheney increasingly parted ways over the Bush administration's policies on the war and terrorism, with Cheney usually prevailing. Powell left the administration after Bush's first term.

Wading into the debate over the GOP's future, Cheney called efforts by George W. Bush's brother Jeb, along with Cantor and Romney, as "a good thing to do," but set a limit on how far the party should go.

"The suggestion our Democratic friends always make is somehow if you Republicans were just more like Democrats, you'd win elections," Cheney said. "Well, I don't buy that. We win elections when we have good solid conservative principles to run upon."

Powell has argued the Republican Party needs to move toward the center and reach out to growing black, Hispanic and Asian communities, but instead has been shrinking because it hasn't changed as the country changed in the face of economic distress. "Americans are looking for more government in their life, not less," Powell said last week.
For months, Powell has urged the party to turn away from the acid-tongued Limbaugh. "I think what Rush does as an entertainer diminishes the party and intrudes or inserts into our public life a kind of nastiness that we would be better to do without," Powell said.

"Colin Powell is just another liberal," Limbaugh retorted. "What Colin Powell needs to do is close the loop and become a Democrat." Limbaugh said Powell is "just mad at me because I'm the one person in the country that had the guts to explain his endorsement of Obama. It was purely and solely based on race." Both Powell and Obama are black.

On other topics on the CBS interview, Cheney:

_said transferring suspected terrorists from the military prison at Guantanamo Bay, Cuba, to the United States would be a bad idea that would enlarge their legal rights. Obama's national security adviser, retired Marine Gen. James Jones, told ABC's "This Week" the White House isn't going to do that if it would make Americans less safe.

_reiterated his belief the U.S. has become more vulnerable to a potential terrorist attack since the Obama administration renounced harsh interrogation tactics such as waterboarding, which simulates drowning, that Cheney said provided good intelligence. Jones said he didn't believe the nation was at greater risk and that even some in the Bush administration disagreed with Cheney on that score.

_renewed his call for the administration to release two CIA memos he said list successes derived from those interrogations, including "attack planning that was under way and how it was stopped." The Obama administration is reviewing Cheney's request. Obama has said the memos are not so clear-cut and do not address whether the information could have been obtained without such methods.

_said he has been speaking out about the Obama administration although George W. Bush remains silent, because if he didn't, "then the critics have free run, and there isn't anybody there on the other side to tell the truth."

http://rawstory.com/08/blog/2009/04/30/cent-uygur-condi-rice-pulls-a-nixon/

April 30, 2009 | Raw Story

By Muriel Kane

When Stanford University students recently asked former National Security Advisor and Secretary of State Condoleezza Rice about waterboarding and torture, her response was uncannily close to Richard Nixon’s infamous claim, “When the president does it, that means it is not illegal.”
Students toting a video camera approached Rice and asked her about a new Senate Intelligence Committee report which states that she gave the CIA its go-ahead for the use of waterboarding in July 2002.

Rice responded by saying, “The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture.”

“I didn’t authorize anything,” Rice insisted. “I conveyed the authorization of the administration to the agency.”

“By definition,” she repeated, “if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.”

The video was caught by Young Turks radio host Cenk Uygur, who blogged about it early Thursday.

“A violation of the law,” Uygur remarks, “is of course, a big deal, especially on something this grave and important. This is not a jaywalking ticket. There were 34 suspected or confirmed homicides of detainees, some clearly due to torture. It does not get any more serious than this.”

Uygur adds that “the precedent does more damage than the law breaking because it sets the new boundaries and rules for our government. It confirms what Rice and Nixon argue for: When the president does it, that means it is not illegal. Allowing that idea to stand unchallenged does far more damage to the republic than any one crime committed by any one person (or the prosecution thereof), even if that person is the president.”

http://www.thedailybeast.com/blogs-and-stories/2009-04-21/should-the-judge-who-wrote-the-torture-memos-be-impeached/full/

April 21, 2009 | The Daily Beast | ANALYSIS
by John W. Dean

 
John W. Dean, former Nixon White House counsel, has written 10 books, including Broken Government: How Republican Rule Destroyed the Legislative, Executive and Judicial Branches, and is working on his next.

Former Nixon White House counsel John W. Dean, who knows a thing or two about impeachment, weighs the evidence for tossing out Jay Bybee, who wrote some of the most revolting torture memos and was later appointed by George W. Bush to be a federal judge. Surprisingly, he finds that the case for impeachment isn’t all The New York Times thinks it’s cracked up to be.

http://www.tdbimg.com/files/2009/04/20/img-article---dean-jay-bybee_230059960272.jpg

After reading the latest legal opinion justifying what we once called torture—memos written by former Assistant Attorney General Jay S. Bybee, now a federal judge on the U.S. Court of Appeals for the Ninth Circuit—The New York Times called for his impeachment: “These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and respect for the Constitution. Congress should impeach him.” But there is a fundamental problem doing so.

The Times editorial focuses on all four of the “sickening” new torture memos that have been released. When thinking about Judge Bybee, and his latest newly released memorandum of August 1, 2002, this one addressed to John Rizzo, the acting general counsel of the CIA, I recalled that the same day Bybee also sent an equally ugly piece of work to White House counsel Alberto Gonzales, which was released earlier, in 2004. Both Bybee memos were later repudiated and retracted by the Department of Justice. During Gonzales’ confirmation hearings to be Bush’s second attorney general, he was quizzed about Bybee’s work, which provoked me to first wonder how Bybee, whose conduct has been called a war crime, remained on the federal bench with life tenure.

It has been suggested that Bybee’s legalizing torture is evidence of a “common plan” (read: conspiracy) to engage in a war crime, which can be a war crime itself. But Bybee’s legal opinions can also be viewed as just that: opinions. Certainly, at this time Bybee has not been charged with nor convicted of war crimes. Rather, as The Times describes it, based on his memos, he is “unfit” for the federal judiciary. But has Judge Bybee committed an impeachable offense by signing off on these memos? Has he committed a high crime or misdemeanor?

The House of Representatives may impeach federal judges for “treason, bribery, or high crimes or misdemeanors.” With judges this standard must be reconciled with their life tenure that provides they “shall hold their offices during good behavior.” Some constitutional scholars read this good-behavior language as mere 18th-century wording for the proposition that judges hold their post for life unless impeached, because an impeachable offense would not be good behavior. Others read it to say judges can only be removed by impeachment, not mere misbehavior.

Strikingly, none of the existing precedents for judicial impeachment fit Judge Bybee’s situation. For example, in 1986 Congress impeached the first judge in 50 years: Judge Harry Claiborne of Nevada, who had been convicted for filing false income-tax returns and then refused to step down from the federal bench. Congress removed him. Next Congress impeached and convicted Federal District Court Judge Alcee L. Hastings of Miami, who had been acquitted of bribery charges by a federal jury five years earlier but whose impeachment was recommended by a panel of his fellow judges. (After being removed from the federal bench he was later elected to Congress.) And finally, Federal District Court Judge Walter L. Nixon of Mississippi, who was serving a five-year federal-prison sentence for perjury and hoped to receive his full salary for life, refused to resign from the bench even when in prison. Congress stopped his paychecks. Again, Judge Bybee has not been formally charged or convicted of anything.

No federal judge has ever been removed from office based on his opinions from the bench. The precedent to consider criteria other than judicial decisions as the basis for a high crime or misdemeanor was established with the effort to remove U.S. Supreme Court Justice Samuel Chase, who was impeached by the House and found not guilty by the Senate in 1805. It will be recalled that as Minority Leader, Gerald Ford tried to remove Justice William O. Douglas largely over his opinions and the House refused to take up the matter. Ford famously complained that an impeachable offense is whatever the majority of the House of Representatives declared it to be, because impeachment is a political process. In short, if Judge Bybee had written opinions comparable to those he issued as an assistant attorney general from the federal bench, while Congress would no doubt have found them offensive, they would not be a basis for impeachment.

Because all we know about Judge Bybee’s activities as an assistant attorney general is that he signed off on the offensive torture opinions (apparently written by John Yoo), it is not likely Congress would be inclined to test the power of impeachment against a person who has resigned from the office where the impeachable offense was committed. Theoretically, the House could impeach and the Senate could convict Bybee for his behavior as an assistant attorney general. Although this has never been done, many leading commentators agree that Congress has the power to follow the practice of the British parliament, which did impeach those who had left office at the time we adopted the impeachment provisions of our Constitution.

In short, a simple majority of the House could impeach Bybee for his activities as an assistant attorney general, a supermajority of two-thirds of the Senate could then convict him, and a simple majority of the Senate could then vote to bar him as an impeached and convicted office holder from further service in the federal government, which would remove a convicted former assistant attorney general Bybee from serving as a federal judge. But again, this would require Congress to reverse its precedent established during the proceeding against Justice Chase of impeaching and removing an office holder for his or her official opinions.

It appears that only if Judge Bybee were found guilty of a war crime is it likely he could be impeached and this would require that he joined his former deputy John Yoo, and others, in some sort of collusive action to enable the White House and CIA to engage in torture. While it is impossible to disagree with The Times’ negative assessment of Judge Bybee’s judicial temperament, and while it is clear that had the Senate known of these memos at the time of his confirmation he would not be on the federal bench today, it is going to take much more than his demented thinking as evidenced by his torture memos to remove him from the safe harbor where George W. Bush placed him.

Spanish Court Weighs Inquiry on Torture for 6 Bush-Era Officials By MARLISE SIMONS http://www.nytimes.com/2009/03/29/world/europe/29spain.html?em Spanish court has taken the first steps toward opening a criminal investigation into allegations that six former high-level Bush administration officials violated international law by providing the legal framework to justify the torture of prisoners at Guantánamo Bay, Cuba, an official close to the case said. The case, against former Attorney General Alberto R. Gonzales and others, was sent to the prosecutor’s office for review by Baltasar Garzón, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet. The official said that it was “highly probable” that the case would go forward and that it could lead to arrest warrants. The move represents a step toward ascertaining the legal accountability of top Bush administration officials for allegations of torture and mistreatment of prisoners in the campaign against terrorism. But some American experts said that even if warrants were issued their significance could be more symbolic than practical, and that it was a near certainty that the warrants would not lead to arrests if the officials did not leave the United States. The complaint under review also names John C. Yoo, the former Justice Department lawyer who wrote secret legal opinions saying the president had the authority to circumvent the Geneva Conventions, and Douglas J. Feith, the former under secretary of defense for policy. Most of the officials cited in the complaint declined to comment on the allegations or could not be reached on Saturday. However their defenders have said their legal analyses and policy work on interrogation practices, conducted under great pressure after the 2001 terrorist attacks, are now being unfairly second-guessed after many years without a terrorist attack on the United States. The court case was not entirely unexpected, as several human rights groups have been asking judges in different countries to indict Bush administration officials. One group, the Center for Constitutional Rights, had asked a German prosecutor for such an indictment, but the prosecutor declined. Judge Garzón, however, has built an international reputation by bringing high-profile cases against human rights violators as well as international terrorist networks like Al Qaeda. The arrest warrant for General Pinochet led to his detention in Britain, although he never faced a trial. The judge has also been outspoken about the treatment of detainees at Guantánamo Bay. Spain can claim jurisdiction in the case because five citizens or residents of Spain who were prisoners at Guantánamo Bay have said they were tortured there. The five had been indicted in Spain, but their cases were dismissed after the Spanish Supreme Court ruled that evidence obtained under torture was not admissible. The 98-page complaint, a copy of which was obtained by The New York Times, is based on the Geneva Conventions and the 1984 Convention Against Torture, which is binding on 145 countries, including Spain and the United States. Countries that are party to the torture convention have the authority to investigate torture cases, especially when a citizen has been abused. The complaint was prepared by Spanish lawyers, with help from experts in the United States and Europe, and filed by a Spanish human rights group, the Association for the Dignity of Prisoners. The National Court in Madrid, which specializes in international crimes, assigned the case to Judge Garzón. His acceptance of the case and referral of it to the prosecutor made it likely that a criminal investigation would follow, the official said. Even so, arrest warrants, if they are issued, would still be months away. Gonzalo Boye, the Madrid lawyer who filed the complaint, said that the six Americans cited had had well-documented roles in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention. Secret memorandums by Mr. Yoo and other top administration lawyers helped clear the way for aggressive policies like waterboarding and other harsh interrogation techniques, which the C.I.A. director, the attorney general and other American officials have said amount to torture. The other Americans named in the complaint were William J. Haynes II, former general counsel for the Department of Defense; Jay S. Bybee, Mr. Yoo’s former boss at the Justice Department’s Office of Legal Counsel; and David S. Addington, who was the chief of staff and legal adviser to Vice President Dick Cheney. Mr. Yoo declined to comment on Saturday, saying that he had not seen or heard of the petition. Mr. Feith, who was the top policy official at the Pentagon when the prison at Guantánamo was established, said he did not make the decision on interrogation methods and was baffled by the allegations. “I didn’t even argue for the thing I understand they’re objecting to,” he said. But Mr. Boye said that lawyers should be held accountable for the effects of their work. Noting that the association he represents includes many lawyers, he said: “This is a case from lawyers against lawyers. Our profession does not allow us to misuse our legal knowledge to create a pseudo-legal frame to justify, stimulate and cover up torture.” Prosecutions and convictions under the Torture Convention have been rare. Reed Brody, a lawyer at Human Rights Watch who has specialized in this issue, said that even though torture was widely practiced, there were numerous obstacles, including “a lack of political will, the problem of gathering evidence in a foreign country and the failure of countries to pass the necessary laws.” This year for the first time, the United States used a law that allows it to prosecute torture in other countries. On Jan. 10, a federal court in Miami sentenced Chuckie Taylor, the son of the former Liberian president, to 97 years in a federal prison for torture, even though the crimes were committed in Liberia. Last October, when the Miami court handed down the conviction, Attorney General Michael B. Mukasey applauded the ruling and said: “This is the first case in the United States to charge an individual with criminal torture. I hope this case will serve as a model to future prosecutions of this type.” The United States, however, would be expected to ignore an extradition request for former officials, although other investigations within the United States have been proposed. Calls for the Justice Department to open a criminal investigation have so far been resisted by the Obama administration, but for more than four years, the Justice Department ethics office has been conducting its own investigation into the work of Mr. Yoo and some of his colleagues. While the officials named in the complaint have not addressed these specific accusations, Mr. Yoo defended his work in an opinion column in The Wall Street Journal on March 7, warning that the Obama administration risked harming national security if it punished lawyers like himself. “If the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today’s intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future,” Mr. Yoo wrote.

Detainee's Harsh Treatment Foiled No Plots Waterboarding, Rough Interrogation of Abu Zubaida Produced False Leads, Officials Say By Peter Finn and Joby Warrick http://www.washingtonpost.com/wp-dyn/content/article/2009/03/28/AR2009032802066.html When CIA officials subjected their first high-value captive, Abu Zubaida, to waterboarding and other harsh interrogation methods, they were convinced that they had in their custody an al-Qaeda leader who knew details of operations yet to be unleashed, and they were facing increasing pressure from the White House to get those secrets out of him. The methods succeeded in breaking him, and the stories he told of al-Qaeda terrorism plots sent CIA officers around the globe chasing leads. In the end, though, not a single significant plot was foiled as a result of Abu Zubaida's tortured confessions, according to former senior government officials who closely followed the interrogations. Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida -- chiefly names of al-Qaeda members and associates -- was obtained before waterboarding was introduced, they said. Moreover, within weeks of his capture, U.S. officials had gained evidence that made clear they had misjudged Abu Zubaida. President George W. Bush had publicly described him as "al-Qaeda's chief of operations," and other top officials called him a "trusted associate" of al-Qaeda leader Osama bin Laden and a major figure in the planning of the Sept. 11, 2001, terrorist attacks. None of that was accurate, the new evidence showed. [read full article on WP website]

Democrats Unveil Ambitious Global Warming Bill http://www.nytimes.com/2009/04/01/us/politics/01energycnd.html?_r=1&hp By JOHN M. BRODER The debate on global warming and energy policy accelerated on Tuesday as two senior House Democrats unveiled a far-reaching bill to cap heat-trapping gases and move the country quickly from dependence on coal and oil. But the bill leaves crucial questions unanswered and as of now has no Republican support. For those reasons, it marks the beginning, not the end, of debate in the current Congress on how to deal with two of President Obama’s top priorities, climate change and energy. The draft measure, written by Representatives Henry A. Waxman of California and Edward J. Markey of Massachusetts, sets a slightly more ambitious goal for capping greenhouse gases than President Obama’s proposal, requiring a reduction in emissions of 20 percent by 2020 from 2005 levels. President Obama’s plan envisioned a 14 percent reduction by 2020. Both would reduce emissions of carbon dioxide, methane and other greenhouse gases linked to global warming by roughly 80 percent by 2050. The Waxman-Markey bill, known as the American Clean Energy and Security Act, emerges at a time when many Americans, and their representatives, are wary of wide-ranging environmental legislation that could raise energy costs and potentially cripple industry. The bill also comes as the Environmental Protection Agency is about to exert regulatory authority over greenhouse gases under the Clean Air Act. The bill would pre-empt that effort and create a new cap-and-trade scheme to control carbon emissions. The new bill would require every region of the country to produce a quarter of its electricity from renewable sources like wind, solar and geothermal by 2025. A number of lawmakers from some regions of the country, particularly the Southeast, call that goal unrealistic because the natural resources and technology to meet it do not currently exist. The bill also calls for modernization of the electrical grid, production of more electric vehicles and significant increases in efficiency in buildings, appliances and electricity generation. But the Waxman-Markey proposal ducks two of the most difficult issues in any global warming plan, the distribution of pollution allowances and the specific timetable for achieving emissions reductions. In addition, it does not address how most of the tens of billions of dollars in revenue gleaned from auctioning pollution permits would be spent or returned to consumers to compensate for higher energy bills. Those matters have been left to negotiations that will begin when Congress returns from its Easter recess on April 20. Mr. Obama’s plan returns roughly two-thirds of those revenues to the public in the form of tax breaks. Some Democrats and Republicans alike want to see all of the revenues from any carbon-reduction plan returned to the public. Mr. Waxman, chairman of the Energy and Commerce Committee, said in a statement that the measure would create jobs and provide a gradual transition to a new, more efficient economy. “This legislation will create millions of clean energy jobs, put America on the path to energy independence, and cut global warming pollution,” Mr. Waxman said. “Our goal is to strengthen our economy by making America the world leader in new clean energy and energy efficiency technologies.” The bill attempts to address the concerns of those from states dependent on coal for electricity and manufacturing for jobs by granting free pollution allowanced to energy-intensive industries like steel, glass, paper and cement. The share of those valuable permits was not specified, however. In another concession to the coal-producing states states, known as brown states, the bill provides for trade sanctions against countries that do not impose controls on carbon emissions by levying tariffs on certain goods from those countries. This provision, insisted on by members from states that depend on manufacturing, raises difficult legal and diplomatic issues because it could violate international trade agreements. The bill offers a sweetener for members from coal-producing states in the form of $10 billion in new financing for development of technology to capture and store emissions of carbon dioxide from the burning of coal. Coal currently produces half of the nation’s electricity and is one of the largest contributors of gases that are blamed for the warming of the planet. Representative Rick Boucher, a Democrat who represents the coal-rich southwestern corner of Virginia, insisted on that provision, noting that coal would remain a major part of the nation’s energy mix for decades to come. Mr. Boucher said that he would also seek to cushion the blow to coal-producing regions by insisting on a relatively slow adoption of the carbon cap to give utilities time to convert to cleaner methods of burning coal. Mr. Waxman and Mr. Markey consulted extensively with the administration in drafting their bill, but the White House did not immediately comment on it. A coalition of business and environmental groups, the United States Climate Action Partnership, welcomed the measure as a “strong starting point” for addressing greenhouse gas emissions and said it incorporated many of its recommendations. But the group, which includes major manufacturing corporations like Alcoa, DuPont and General Motors, said that it would push for a “substantial” number of free pollution allowances so that its members can make a gradual transition to less-polluting technologies.

"A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death." ~ Martin Luther King, Jr.

Text of President Barack Obama's inaugural address on Tuesday, as prepared for delivery and released by the Presidential Inaugural Committee.

My fellow citizens:

I stand here today humbled by the task before us, grateful for the trust you have bestowed, mindful of the sacrifices borne by our ancestors. I thank President Bush for his service to our nation, as well as the generosity and cooperation he has shown throughout this transition.

Forty-four Americans have now taken the presidential oath. The words have been spoken during rising tides of prosperity and the still waters of peace. Yet, every so often the oath is taken amidst gathering clouds and raging storms. At these moments, America has carried on not simply because of the skill or vision of those in high office, but because we the people have remained faithful to the ideals of our forebears, and true to our founding documents.

So it has been. So it must be with this generation of Americans.

That we are in the midst of crisis is now well understood. Our nation is at war, against a far-reaching network of violence and hatred. Our economy is badly weakened, a consequence of greed and irresponsibility on the part of some, but also our collective failure to make hard choices and prepare the nation for a new age. Homes have been lost; jobs shed; businesses shuttered. Our health care is too costly; our schools fail too many; and each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet.

These are the indicators of crisis, subject to data and statistics. Less measurable but no less profound is a sapping of confidence across our land — a nagging fear that America's decline is inevitable, and that the next generation must lower its sights.

Today I say to you that the challenges we face are real. They are serious and they are many. They will not be met easily or in a short span of time. But know this, America — they will be met.

On this day, we gather because we have chosen hope over fear, unity of purpose over conflict and discord.

On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn out dogmas, that for far too long have strangled our politics.

We remain a young nation, but in the words of scripture, the time has come to set aside childish things. The time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea, passed on from generation to generation: the God-given promise that all are equal, all are free and all deserve a chance to pursue their full measure of happiness.

In reaffirming the greatness of our nation, we understand that greatness is never a given. It must be earned. Our journey has never been one of shortcuts or settling for less. It has not been the path for the faint-hearted — for those who prefer leisure over work, or seek only the pleasures of riches and fame. Rather, it has been the risk-takers, the doers, the makers of things — some celebrated but more often men and women obscure in their labor, who have carried us up the long, rugged path towards prosperity and freedom.

For us, they packed up their few worldly possessions and traveled across oceans in search of a new life.

For us, they toiled in sweatshops and settled the West; endured the lash of the whip and plowed the hard earth.

For us, they fought and died, in places like Concord and Gettysburg; Normandy and Khe Sahn.

Time and again these men and women struggled and sacrificed and worked till their hands were raw so that we might live a better life. They saw America as bigger than the sum of our individual ambitions; greater than all the differences of birth or wealth or faction.

This is the journey we continue today. We remain the most prosperous, powerful nation on Earth. Our workers are no less productive than when this crisis began. Our minds are no less inventive, our goods and services no less needed than they were last week or last month or last year. Our capacity remains undiminished. But our time of standing pat, of protecting narrow interests and putting off unpleasant decisions — that time has surely passed. Starting today, we must pick ourselves up, dust ourselves off, and begin again the work of remaking America.

For everywhere we look, there is work to be done. The state of the economy calls for action, bold and swift, and we will act — not only to create new jobs, but to lay a new foundation for growth. We will build the roads and bridges, the electric grids and digital lines that feed our commerce and bind us together. We will restore science to its rightful place, and wield technology's wonders to raise health care's quality and lower its cost. We will harness the sun and the winds and the soil to fuel our cars and run our factories. And we will transform our schools and colleges and universities to meet the demands of a new age. All this we can do. And all this we will do.

Now, there are some who question the scale of our ambitions — who suggest that our system cannot tolerate too many big plans. Their memories are short. For they have forgotten what this country has already done; what free men and women can achieve when imagination is joined to common purpose, and necessity to courage.

What the cynics fail to understand is that the ground has shifted beneath them — that the stale political arguments that have consumed us for so long no longer apply. The question we ask today is not whether our government is too big or too small, but whether it works — whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified. Where the answer is yes, we intend to move forward. Where the answer is no, programs will end. And those of us who manage the public's dollars will be held to account — to spend wisely, reform bad habits, and do our business in the light of day — because only then can we restore the vital trust between a people and their government.

Nor is the question before us whether the market is a force for good or ill. Its power to generate wealth and expand freedom is unmatched, but this crisis has reminded us that without a watchful eye, the market can spin out of control — and that a nation cannot prosper long when it favors only the prosperous. The success of our economy has always depended not just on the size of our gross domestic product, but on the reach of our prosperity; on our ability to extend opportunity to every willing heart — not out of charity, but because it is the surest route to our common good.

As for our common defense, we reject as false the choice between our safety and our ideals. Our founding fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake. And so to all other peoples and governments who are watching today, from the grandest capitals to the small village where my father was born: know that America is a friend of each nation and every man, woman, and child who seeks a future of peace and dignity, and that we are ready to lead once more.

Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with sturdy alliances and enduring convictions. They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint.

We are the keepers of this legacy. Guided by these principles once more, we can meet those new threats that demand even greater effort — even greater cooperation and understanding between nations. We will begin to responsibly leave Iraq to its people, and forge a hard-earned peace in Afghanistan. With old friends and former foes, we will work tirelessly to lessen the nuclear threat, and roll back the specter of a warming planet. We will not apologize for our way of life, nor will we waver in its defense, and for those who seek to advance their aims by inducing terror and slaughtering innocents, we say to you now that our spirit is stronger and cannot be broken; you cannot outlast us, and we will defeat you.

For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus — and non-believers. We are shaped by every language and culture, drawn from every end of this Earth; and because we have tasted the bitter swill of civil war and segregation, and emerged from that dark chapter stronger and more united, we cannot help but believe that the old hatreds shall someday pass; that the lines of tribe shall soon dissolve; that as the world grows smaller, our common humanity shall reveal itself; and that America must play its role in ushering in a new era of peace.

To the Muslim world, we seek a new way forward, based on mutual interest and mutual respect. To those leaders around the globe who seek to sow conflict, or blame their society's ills on the West — know that your people will judge you on what you can build, not what you destroy. To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history; but that we will extend a hand if you are willing to unclench your fist.

To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds. And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to suffering outside our borders; nor can we consume the world's resources without regard to effect. For the world has changed, and we must change with it.

As we consider the road that unfolds before us, we remember with humble gratitude those brave Americans who, at this very hour, patrol far-off deserts and distant mountains. They have something to tell us today, just as the fallen heroes who lie in Arlington whisper through the ages. We honor them not only because they are guardians of our liberty, but because they embody the spirit of service; a willingness to find meaning in something greater than themselves. And yet, at this moment — a moment that will define a generation — it is precisely this spirit that must inhabit us all.

For as much as government can do and must do, it is ultimately the faith and determination of the American people upon which this nation relies. It is the kindness to take in a stranger when the levees break, the selflessness of workers who would rather cut their hours than see a friend lose their job which sees us through our darkest hours. It is the firefighter's courage to storm a stairway filled with smoke, but also a parent's willingness to nurture a child, that finally decides our fate.

Our challenges may be new. The instruments with which we meet them may be new. But those values upon which our success depends — hard work and honesty, courage and fair play, tolerance and curiosity, loyalty and patriotism — these things are old. These things are true. They have been the quiet force of progress throughout our history. What is demanded then is a return to these truths. What is required of us now is a new era of responsibility — a recognition, on the part of every American, that we have duties to ourselves, our nation, and the world, duties that we do not grudgingly accept but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character, than giving our all to a difficult task.

This is the price and the promise of citizenship.

This is the source of our confidence — the knowledge that God calls on us to shape an uncertain destiny.

This is the meaning of our liberty and our creed — why men and women and children of every race and every faith can join in celebration across this magnificent mall, and why a man whose father less than sixty years ago might not have been served at a local restaurant can now stand before you to take a most sacred oath.

So let us mark this day with remembrance, of who we are and how far we have traveled. In the year of America's birth, in the coldest of months, a small band of patriots huddled by dying campfires on the shores of an icy river. The capital was abandoned. The enemy was advancing. The snow was stained with blood. At a moment when the outcome of our revolution was most in doubt, the father of our nation ordered these words be read to the people:

"Let it be told to the future world ... that in the depth of winter, when nothing but hope and virtue could survive...that the city and the country, alarmed at one common danger, came forth to meet (it)."

America, in the face of our common dangers, in this winter of our hardship, let us remember these timeless words. With hope and virtue, let us brave once more the icy currents, and endure what storms may come. Let it be said by our children's children that when we were tested we refused to let this journey end, that we did not turn back nor did we falter; and with eyes fixed on the horizon and God's grace upon us, we carried forth that great gift of freedom and delivered it safely to future generations.