Thursday, April 3, 2008

Federal Reserve staff move into offices of investment banks to monitor activities

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By Tom Bawden and Dearbail Jordan

The US Federal Reserve has sent staff into some of Wall Street’s biggest firms and its New York branch is gathering evidence on key traders’ activities as America’s central bank raises its scrutiny of risk to an unprecedented level.

Fed staff have set up shop in Goldman Sachs, Morgan Stanley, Lehman Brothers, Merrill Lynch, and Bear Stearns to monitor their financial condition just days after Henry Paulson, the US Treasury Secretary, proposed that the Fed become the financial industry’s “risk czar”.

This is the first time in more than a decade that the Fed has put staff in securities firms and is a response, in part, to its decision to extend to investment banks the “discount window” of cheap loans traditionally offered only to the commercial banks. The Fed argues that if it is to act as lender of last resort to the securities firms, it should keep a closer eye on their activities.

The move comes as the central bank’s New York branch separately compiles a list of names and numbers of key traders in specific, esoteric securities such as auction rate preferred securities. These obscure instruments can be traded only at auctions and demand for them has virtually evaporated in recent weeks.

A senior US mutual fund executive, whom the Fed has approached, said: “They are looking in every corner to understand every esoteric financial product — who its traders are, who holds the most, whether its market is liquid and how great the losses could be. They are approaching people like me to find the key players in particular securities and then contacting them to find out the details. I have never heard of that being done before.”

The Fed will use the information to ascertain how effective the measures it has taken so far have been, where in the financial system the biggest dangers lie and how best to curb them. Its action includes a 3 percentage point cut in the base rate since last August and a reduction in its discount window lending rate.

The Fed declined to comment on its attempts to increase its market scrutiny. However, Timothy Geithner, its president, speaking to Congress yesterday, said: “[The banking industry's] most important risk is systemic: if this dynamic continues, unabated, the result would be greater probability of widespread insolvencies, severe and protracted damage to the financial system and, ultimately, to the economy as a whole.” He cited “a self-reinforcing downward spiral” of asset sales, “higher volatility, and still lower prices”.

The market must stabilise to reduce the number of short-sellers seeking to push down the price of a company’s shares by spreading false rumours, analysts said yesterday. Shares in Lehman Brothers and Bear Stearns took a hammering last month after unfounded rumours surfaced that they faced a liquidity crisis.

The Financial Services Authority (FSA) is investigating unusual movement in HBOS shares. The watchdog is probing an unprecendented 20 per cent fall in the shares of the owner of the Halifax on the morning of 19 March amid speculation it was facing a Northern Rock style liquidity crisis. The Bank of England took the unusual step of publicly denying talk that it was cancelling staff holidays over Easter and convening emergency meetings to discuss a bank in crisis, describing the talk as “fantasy” while the FSA has been pledged new powers to help it to crack down on so-called market abuse.

Mr Paulson has made the management of risk a central part of his proposals to overhaul US financial regulations, many of which date back to the Great Depression. Banks have lost more than $232 billion worldwide so far as a result of the credit crunch and losses will continue to mount for some time.

Legislature's Republicans play blame-the-illegal-immigrant

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By Steve Wiegand

Republican legislators trotted out the first parts of their anti-illegal immigration package of bills Tuesday, and things went about as well as could be expected.

Which is to say, not well at all.

In case you missed it, the Reeps have determined that illegal immigrants are to blame for most of the state's gaping budget deficit. (Democrats are to blame for the rest of it.)

To remedy this problem (the illegal problem, not the Democrat problem), GOP lawmakers put together what they call a "border security" package of "20 common-sense measures" they said "would help the state secure the border and better protect Californians."

Two of the "common-sense" measures went toe to toe with reality, in the form of the Assembly Public Safety Committee.

One of the bills was AB 1882, by Assemblyman Martin Garrick, R-Solana Beach.

What the bill would do is require cops who arrest a drunken driver, after an accident that involves an injury or does more than $600 worth of property damage, to determine whether the drunk is legally in the United States.

If the drunk couldn't prove to the cop's satisfaction his legal right to be on U.S. soil, the cop would be obligated to contact federal immigration officials about it.

Garrick asserted that his bill would "dramatically reduce the number of unnecessary DUI deaths and injuries in California." (I don't think he meant to imply that there are necessary DUI deaths and injuries.)

But he didn't produce any statistical data that show illegal-immigrant drunken drivers are any more of a problem than legal resident drunken drivers. And the idea of asking cops to determine citizenship status without resorting to racial profiling is a pretty tall order.

Plus, a committee analysis raised a host of constitutional questions about the state's limited role in enforcing federal immigration laws.

So Democrats on the committee killed the bill on a party-line vote, although they did extend Garrick the courtesy of having his bill reconsidered, which means he will have the opportunity to have it killed again at a later date.

They also killed, and granted reconsideration to, a bill by Assemblyman Van Tran, R-Garden Grove, that would require state prison officials to determine the immigration status of any new prisoner.

The apparent purpose of AB 2141 is to give the state a firm illegal immigrant inmate count so it can seek reimbursement from the feds for housing illegals.

But prison officials already count illegals, and the state already demands the feds pay up, and the feds already ignore the demands.

These two bills not only exemplify the likely fate of the rest of the GOP package, but what's wrong with it.

There are some questions related to illegal immigration and California on which legislators could and should spend some time and energy.

Should, for example, a person who comes to California illegally at the age of 2 or 3 be allowed to pay the same tuition rates at state colleges as the person who comes here legally at the age of, say, 16?

Are we better off giving illegals driver's licenses if they learn the driving laws, pass the tests and get insurance, or refusing to grant them licenses until they obtain legal residency?

Those kinds of issues strike me as legitimate areas for debate.

It seems like Reeps could accomplish more in this area if they focused more on real problems and less on trying to score political points with the faithful by demonizing illegal immigrants.

Of course, accentuating the negative is what GOP legislators are pretty much relegated to these days.

Maybe they're just sticking with what they're good at.

ATA Airlines goes out of business

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ATA Airlines late last night announced it was ceasing operations immediately, stranding passengers holding tickets on its 15 daily flights from Hawaii to the West Coast.

The Indianapolis-based carrier had filed for Chapter 11 bankruptcy protection earlier yesterday.

ATA's Hawaii routes were to Los Angeles, Oakland, Phoenix and Las Vegas.

Although the company said it was canceling flights as of 10 p.m. Hawaii time, its Flight 4586 to Phoenix was scheduled to leave with passengers at 12:10 a.m. today, following a two-hour departure delay.

That was expected to be ATA's last flight out of Hawaii.

The sudden shutdown came two days after Aloha Airlines' final flight and left ticket-holding ATA passengers with the same difficult options: scramble to get a seat on another airline, and seek refunds if purchased by credit card or through the bankruptcy court if ATA tickets were purchased with cash.

The company issued a statement last night saying it could not stay in business after losing a key contract for military charter flights.

ATA, founded in 1973, employed about 2,230 workers and was operating 29 aircraft at the time of its shutdown. It claimed to serve 10,000 passengers daily.

It had seven daily flights out of Honolulu, five from Maui, and one each from Kona, Hilo and Lihue. It has about 50 employees in Honolulu.

The airline was no longer flying as of 4 a.m. Eastern time, a recording on 800-435-9282 (I Fly ATA) said last night.

Shayrah Akers, 25, of Sacramento, Calif., was stuck at Hono-lulu International Airport last night after she could not get a standby seat to Phoenix.

"The economy's just going crazy," Akers said of the two airline shutdowns. She and friend Kelcey Hamilton of Kapolei were on a cell phone last night trying to get a flight before giving up.

Akers appeared to be the only stranded ATA passenger at the airport last night, but more will join her as they discover today their flights have been canceled.

The company last night issued this statement on its Web site:

"After filing for Chapter 11 on April 2, 2008 in the U.S. Bankruptcy Court in Indianapolis, IN, ATA Airlines has discontinued all operations and cancelled all current and future flights. Following the loss of a key contract for our military charter business, it became impossible for ATA to continue operations. Unfortunately, we were not in a position to provide our customers or others with advance notice.

"We apologize for the disruption caused by the sudden shutdown of ATA and regret the impact on passengers, employees, suppliers, and other parties. ATA customers should seek alternative arrangements for current and future travel. A list of other airlines serving ATA's destinations is available here.

"ATA customers who purchased tickets using a credit card should contact their credit card company or travel agency directly for information about how to obtain a refund for unused tickets.

"ATA currently is unable to provide refunds to customers who purchased tickets directly from ATA with cash or a check. These customers may be able to obtain a full or partial refund for their unused tickets by submitting a claim in ATA's Chapter 11 proceedings."

ATA said information about submitting a refund claim will be available at www.bmcgroup


It also said that passengers who purchased tickets from Southwest Airlines for flights operated by ATA should contact Southwest Airlines at 800-308-5037.

Mosaic News - 4/2/08: World News from the Middle East

New study shows US lawmakers have as much as $196 million invested in defense companies

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WASHINGTON: Members of the U.S.Congress have as much as $196 million (€126.2 million) collectively invested in companies doing business with the Defense Department, earning millions since the start of the Iraq war, according to a new study by a nonpartisan research group.

The review of lawmakers' 2006 financial disclosure statements, by the Washington-based Center for Responsive Politics, suggests that members' holdings could pose a conflict of interest as they decide the fate of Iraq war spending. Several members who earned the most from defense contractors have plum committee or leadership assignments, including Democratic Sen. John Kerry, independent Sen. Joseph Lieberman and House Republican Whip Roy Blunt.

The study found that more Republicans than Democrats hold stock in defense companies, but that the Democrats who are invested had significantly more money at stake. In 2006, for example, Democrats held at least $3.7 million (€2.3 million) in military-related investments, compared to Republican investments of $577,500 (€372,000).

Overall, 151 members hold investments worth $78.7 million (€50.6 million) to $195.5 million (€125.9 million) in companies that receive defense contracts that are worth at least $5 million (€3.2 million). These investments earned them anywhere between $15.8 million (€10.1 million) and $62 million (€39.9 million) between 2004 and 2006, the center concludes.

It is unclear how many members still hold these investments and exactly how much money has been made. Disclosure reports for 2007 are not due until this May. Also, members are required to report only a general range of their holdings.

According to the report, presidential hopefuls Barack Obama and John McCain did not report any defense-related holdings on their filings; Hillary Rodham Clinton did note holdings in such companies as Honeywell, Boeing and Raytheon, but sold the stock in May 2007. All three are members of the Senate.

Not all the companies invested in by lawmakers are typical defense contractors. Corporations such as PepsiCo, IBM, Microsoft and Johnson & Johnson have at one point received defense-related contracts, the report notes.

"So common are these companies, both as personal investments and as defense contractors, it would appear difficult to build a diverse blue-chip stock portfolio without at least some of them," wrote the center's Lindsay Renick Mayer.

Still, earning dividends from companies tied to the military "could be problematic" for members that oversee defense policy and budgeting, Mayer adds.

Kerry, a Democrat, a member of the Senate Foreign Relations Committee, is identified as earning the most — at least $2.6 million between 2004 and 2006 from investments worth up to $38.2 million (€24.6 million).

Spokesman David Wade said Kerry, who staunchly opposes the war in Iraq, is one of many beneficiaries of family trusts which he doesn't control. Wade also noted that Kerry does not sit on the Appropriations Committee, which has direct control of the defense budget.

"He has a 24-year Senate record of working and voting in the best interests of our men and women in the military, not of any defense contractors," Wade said.

Lieberman, an independent and chairman of the Senate Homeland Security and Governmental Affairs Committee and a member of the Armed Services Committee, held a considerably smaller share at $51,000 (€32,848.13).

A spokesman for Blunt, a senior member of House Republican leadership who held at least $15,000 (€9,660) in Lockheed Martin stock in 2006, said the insinuation that lawmakers' votes might be affected by their portfolios is "offensive."

"I don't pretend to speak for other offices, but I am fairly certain that no member would consider their personal finances when voting on issues as important as sending our men and women in uniform into harm's way," said Blunt spokesman Nick Simpson.

Memo Justified Warrantless Surveillance

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Washington - For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil didn't apply to its efforts to protect against terrorism.

That view was expressed in a Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

The 37-page memo has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

"Our office recently concluded that the Fourth Amendment had no application to domestic military operations," the footnote states, referring to a document titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."

Exactly what domestic military action was covered by the October memo is unclear. But federal documents indicate that the memo relates to the National Security Agency's Terrorist Surveillance Program, or TSP.

That program intercepted phone calls and e-mails on U.S. soil, bypassing the normal legal requirement that such eavesdropping be authorized by a secret federal court. The program began after the Sept. 11 terrorist attacks and continued until Jan. 17, 2007, when the White House resumed seeking surveillance warrants from the Foreign Intelligence Surveillance Court.

White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program.

"TSP relied on a separate set of legal memoranda," Fratto told The Associated Press. The Justice Department outlined that legal framework in a January 2006 white paper issued by the Justice Department a month after the TSP was revealed by The New York Times.

The October memo was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA's secret wiretapping program for the first time.

The government itself related the October memo to the TSP program when it included it on a list of documents that were responsive to the ACLU's request for records from the program. It refused to hand them over.

Late Wednesday, Justice Department spokesman Brian Roehrkasse said department officials believe the October 2001 memo was not about the eavesdropping program, but he did not explain why it was included on requests for documents linked to the TSP.

Earlier, Roehrkasse said the statement in the footnote does not reflect the current view of the department's Office of Legal Counsel.

"We disagree with the proposition that the Fourth Amendment has no application to domestic military operations," he said. "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

Roehrkasse would not say exactly when that legal opinion was overturned internally. But he pointed to the January 2006 white paper.

"The white paper does not suggest in any way that the Fourth Amendment does not apply to domestic military activities, and that is not the position of the Office of Legal Counsel," he said.

Suzanne Spaulding, a national security law expert and former assistant general counsel at the CIA, said she found the Fourth Amendment reference in the footnote troubling, but added: "To know (the Justice Department) no longer thinks this is a legitimate statement is reassuring."

"The recent disclosures underscore the Bush administration's extraordinarily sweeping conception of executive power," said Jameel Jaffer, director of the ACLU's National Security Project. "The administration's lawyers believe the president should be permitted to violate statutory law, to violate international treaties and even to violate the Fourth Amendment inside the U.S. They believe that the president should be above the law."

"Each time one of these memos comes out you have to come up with a more extreme way to characterize it," Jaffer said.

The ACLU is challenging in court the government's withholding of the October 2001 memo.

"Emergency" Bill Tries to Make Electronic Voting More Accurate, but Will It?

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By Steven Rosenfeld

Looking ahead to the fall election, a House bill lets states decide if they want to replace paperless voting systems - or just add printers.

Efforts to improve the machinery that will count the 2008 presidential vote fell prey to a classic Washington compromise on Wednesday, when a House committee approved a bill giving money to both opponents and supporters of controversial paperless electronic voting systems.

The "Emergency Assistance for Secure Elections Act of 2008," or H.R. 5036, now goes to the House floor, where its goal is helping cities and counties create a "verifiable" paper trail and audits for individual votes cast for president and Congress.

But just how that paper trail is achieved is broadly defined in the bill. Opponents of paperless electronic voting can seek federal funds to buy paper ballot-based systems, where voters mark ballots by hand and computer scanners tally the result. Several states, notably California, Ohio and Florida, are making this transition. Meanwhile, proponents of all-electronic voting can keep their machines but seek funds to add printers that theoretically will allow voters to see if their choices have been properly recorded.

Under the bill, the hand-marked paper ballots and new computer printouts would be used to verify the accuracy of vote counts. Jurisdictions taking federal money to buy new machinery would be required to hand count 2 percent of all ballots as part of an audit to ensure the vote count is accurate.

"It will reduce the uncertainly, questions and disputes about the election in many places in our country," said Rep. Rush Holt, D-NJ and the bill's chief sponsor. "It is intended for counties to provide voter verified paper ballots and or audits. And although it does not establish a national standard [for a paper trail], it encourages counties and states to do the right thing. And that means offer voter verified paper ballots and audits."

Election integrity activists, who documented many problems with paperless, electronic voting systems and played a big part in convincing top officials in several states to return to paper ballot-based voting, were generally disappointed in the bill.

"I do not support any version of the HOLT bill or any other proposed bill that solidifies the continued use of DREs with printer," said Nevada's Patricia Axelrod, who has an extensive technical background, in an e-mail Wednesday. DRE, or direct recording equipment, is industry slang for the paperless voting systems.

"I am well-seasoned in the use of such machines as I battling against the Sequoia AVC Edge with Verivote printer now in use throughout the entire State of Nevada since 2004," Axelrod said. "I hasten to assure you that the attachment of a Mickey Mouse printer to a poorly designed, engineered and manufactured computer - one built to the same specifications as your average lap or desk top computer; only with less oversight - is not going to assure accurate and reliable elections."

"I do not support any legislation that perpetuates the myth of verified voting," said New Hampshire's Nancy Tobi, Election Defense Alliance legislative director. "The problem is the current bill is fundamentally wrong in its originating premise. Holt and his supporters believe the key is the audit, but the key is the first count. And the audits they recommend are not even audits. They are spot checks. So you have a fake audit for a fake election."

Holt acknowledged H.R. 5036 was a compromise bill. Activists following its progress in Washington said lobbyists for the disabled community, election officials and the voting machine industry pushed to preserve the use of DREs. The House Majority Leader Steny Hoyer, D-MD, siding with those constituencies, apparently would not allow a bill on the House floor that said paper ballots were superior to paperless voting, they said. However, Holt said most election supervisors at the local level recognized that the paper-based optical-scan systems were more reliable and accurate than DREs with printers.

"We have found that electronic machines with attached printers don't work very well," he said. "I think more and more states are moving away from that. My guess is that states and counties that choose to opt in [to buy new voting machinery] would probably use the technologies that are gaining favor."

Holt said states that have been transitioning from DREs to optical-scan paper-ballot systems, such as California, Ohio and Florida, should be eligible for federal funds to acquire new voting machinery, under the bill. However, one lobbyist who has been tracking the bill questioned if that was the case under its fine print.

Beyond the apparent compromise appeasing both sides of the paperless voting machine debate, the bill also has constitutionally significant ramifications because it accords paper printouts with the same legal standing as hand-marked paper ballots. This factor could become very significant for close elections and recounts.

"Now we will rely on printed receipts as reflective of voter intent, when it's the case that they jam, they don't print, they cause long lines, and they cannot be trusted," said John Bonifaz, Counsel for Voter Action, a public interest law firm. "Voter Action endorsed the original version of this bill, HR 5036, and did that because we think it is critical that we shift from DRE machines to optically scanned paper ballot systems. This substitute bill effectively undermines the underlying principle of that original bill."

Holt said he believed hand-marked paper ballots would be taken more seriously in recounts than print-outs from add-ons to DRE systems. However, he said it was not possible, given the current political landscape, to establish a national standard for a paper record - such as legislation requiring hand-marked paper ballots.

"I think that a hard copy vote that the voter can verify is always going to be regarded better than an ethereal electronic memory. That's the lesson of the last few years," he said. "Now, it is true that in different states, the studies and the experience of the election officials shows that not all methods of recording ballots are equally good. Some systems break down. Some systems don't seem to work very well in practice with voters. But it has not been possible, this year, anyway, to establish a national standard."

The bill would also require any jurisdiction taking federal funds for new machines audit 2 percent of their precincts to determine if the vote count was accurate. An earlier version of the bill required that mandatory audit consist of 3 percent of the precincts. Election officials lobbied to ease that audit requirement, Rep. Zoe Lofgren, D-CA said, when telling Administration Committee of the changes in the bill's text.

The bill also will cover the cost of printing backup paper ballots, in case the DRE systems fail. However, like the rest of the bill, it is an "opt-in" proposal, meaning that any jurisdiction can choose to take advantage of the federal funding, as opposed to mandate.

Still, not all election integrity activists criticized the bill.

"I think it's a good bill," said Warren Stewart of "Maybe it gets us some more audits. It pays for back-up paper ballots for jurisdictions with DREs. It will help states like Iowa change to paper ballots. I think it is unfortunate that it funds the purchase of flawed printers. But legislation is compromise."

Scientists Ignored on Toxic Trailers

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By Suemedha Sood

Toxin agency slammed at oversight hearing.

Senior management at the Agency for Toxic Substances and Disease Registry, the toxins arm of the CDC, got slammed today at a congressional hearing examining the agency's response when the government trailers housing Hurricane Katrina victims were found to be toxic.

The House Committee on Science and Technology's Subcommittee on Investigations and Oversight today held hearings into how and why the agency failed to protect public health when those trailers were found to be emitting dangerous levels of formaldehyde.

"In almost every respect ATSDR failed to fulfill its mission to protect the public from exposure to formaldehyde at levels known to cause ill-health effects," said Subcommittee Chairman Brad Miller (D-NC), who blamed a "collapse of senior management and leadership."

At the hearing, it became clear that a leading government expert on formaldehyde had tried to alert his superiors about the toxicity levels of the government trailers in New Orleans, but was repeatedly ignored. Ultimately, he was demoted. Today his superiors said they should have followed his advice, but they did not address why they "reassigned" him to a new position.

Dr. Christopher De Rosa, former director of toxicology and environmental medicine at the Agency for Toxic Substances and Disease Registry, said today that his superiors ignored his concerns about formaldehyde levels, kept him out of correspondence regarding its public health consultation and told him to stop writing them emails expressing his concerns about that consultation.

De Rosa, who has worked for the federal government for 28 years, said he learned that his division, which handles toxicology, was kept out of the loop of the agency's work on the trailer issue.. He said today that information regarding the agency's public health consultation was not shared with his division. This was unusual, he explained, because health consultations involving toxicology studies require review from De Rosa's division.

ATSDR Director Dr. Howard Frumkin admitted that the health report did not make its way to De Rosa's division, but said this was because the agency was trying to deliver an expedited emergency response. Frumkin said the division of toxicology was left out of correspondence because the agency needed to act quickly. "In retrospect, clearance in the division [of toxicology] did not occur," Frumkin said. "[S]taff went through the emergency response chain, so only that chain was used." The health consultation went directly from the "emergency chain" to Frumkin's office.

De Rosa maintains that he was kept out of the loop on purpose. When he finally did review the consultation, he immediately contacted Frumkin's office with his concerns. In his emails, De Rosa said the consultation failed to assess the long-term effects of formaldehyde, including the potential for cancer. "Despite my repeated efforts to bring these issues to the attention of my management," said De Rosa, "we had very little constructive follow-up."

De Rosa wasn't the only one who talked about ATSDR's shortcomings. Dr. Meryl Kerol of the University of Pittsburgh also testified today. Kerol, an expert in toxicology, said the report seemed insufficient in its coverage of formaldehyde's long-term health effects, reproductive effects and carcinogenic effects.

The Sierra Club's Becky Gillette went a step further. She testified at the hearing that the "health consultation was a huge disappointment." "[ATSDR] gave completely erroneous advice, covering up this problem when the health of thousands was at stake," said Gillette. She said the agency downplayed formaldehyde levels, which were higher than safe levels according to the agency's own standards.

Gillette added that this wasn't a surprise, though. "Contaminated communities often feel let down by ATSDR," she said.

Frumkin, the agency's director, acknowledged at the hearing that the initial public health consultation was "narrowly focused [and had] an inappropriate level of concern." He also said that the revised report took longer to complete than it should have.

In October 2007, agency scientist De Rosa was demoted. This was a year after he had received a performance-based raise and a bonus.

Frumkin assured the committee that neither he nor the agency had any intention of firing De Rosa. But De Rosa said he has been physically moved around three times, making it difficult for him to interact with other scientists.

At today's hearing, Miller praised what he described as De Rosa's whistle-blowing. "It is not second nature for many managers to value whistle-blowers," Miller said, "but the loyalty we expect is the loyalty of the mission of the agency, the loyalty to protect public health."

Heavy Troop Deployments Are Called Major Risk

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By Ann Scott Tyson

Readiness is dangerously low, Army chief says.

Senior Army and Marine Corps leaders said yesterday that the increase of more than 30,000 troops in Iraq and Afghanistan has put unsustainable levels of stress on U.S. ground forces and has put their readiness to fight other conflicts at the lowest level in years.

In a stark assessment a week before Gen. David H. Petraeus, the top U.S. commander in Iraq, is to testify on the war's progress, Gen. Richard A. Cody, the Army's vice chief of staff, said that the heavy deployments are inflicting "incredible stress" on soldiers and families and that they pose "a significant risk" to the nation's all-volunteer military.

"When the five-brigade surge went in . . . that took all the stroke out of the shock absorbers for the United States Army," Cody testified before the Senate Armed Services Committee's readiness panel.

He said that even if five brigades are pulled out of Iraq by July, as planned, it would take some time before the Army could return to 12-month tours for soldiers. Petraeus is expected to call for a pause in further troop reductions to assess their impact on security in Iraq.

"I've never seen our lack of strategic depth be where it is today," said Cody, who has been the senior Army official in charge of operations and readiness for the past six years and plans to retire this summer.

Lt. Gen. Raymond T. Odierno, one of the chief architects of the Iraq troop increase, has been nominated to replace Cody. Odierno is scheduled for a Senate confirmation hearing tomorrow.

The testimony reflects the tension between the wartime priorities of U.S. commanders in Iraq such as Petraeus and the heads of military services responsible for the health and preparedness of the forces. Cody said that the Army no longer has fully ready combat brigades on standby should a threat or conflict occur.

The nation needs an airborne brigade, a heavy brigade and a Stryker brigade ready for "full-spectrum operations," Cody said, "and we don't have that today."

Soldiers and Marines also lack training for major combat operations using their entire range of weapons, the generals said. For example, artillerymen are not practicing firing heavy guns but are instead doing counterinsurgency work as military police.

The Marine Corps' ability to train for potential conflicts has been "significantly degraded," said Gen. Robert Magnus, assistant commandant of the Marine Corps.

He said that although Marine Corps units involved in the troop increase last year have pulled out, new demands in Afghanistan, where 3,200 Marines are headed, have kept the pressure on the force unchanged.

"There has been little, if any, change of the stress or tempo for our forces," he said, calling the current pace of operations "unsustainable."

Magnus suggested that if more Marines are freed from Iraq they could also go to Afghanistan. Marines "will move to the sound of the guns in Afghanistan," he said. But he said it would be difficult to keep the force split between the two countries because the Marine Corps has limited resources to command a divided force and supply it logistically.

The Marine Corps is "basically in two boats at the same time," he said.

Both the Army and Marine Corps are working to increase their ranks by tens of thousands of troops - to 547,000 active-duty soldiers and 202,000 Marines - but newly created combat units will not be able to provide relief until about 2011.

U.S. soldiers are currently deploying for 15-month combat tours, with 12 months at home in between. Marines are deploying for seven-month rotations, with seven months at home.

Both services seek to give their members at least twice as much time at home as time overseas.

"Where we need to be with this force is no more than 12 months on the ground and 24 months back," Cody said.

"Handed Over" to a Government Called Sadr

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By Ali al-Fadhily and Dahr Jamail

Baghdad - Despite the huge media campaign led by U.S. officials and a complicit corporate-controlled media to convince the world of U.S. success in Iraq, emerging facts on the ground show massive failure.

The date March 25 of this year will be remembered as the day of truth through five years of occupation.

"Mehdi army militias controlled all Shia and mixed parts of Baghdad in no time," a Baghdad police colonel, speaking on condition of anonymity, told IPS. "Iraqi army and police forces as well as Badr and Dawa militias suddenly disappeared from the streets, leaving their armoured vehicles for Mehdi militiamen to drive around in joyful convoys that toured many parts of Baghdad before taking them to their stronghold of Sadr City in the east of Baghdad."

The police colonel was speaking of the recent clashes between members of the Shia Muqtada al-Sadr's Mehdi Army, the largest militia in the country, and members of the Iraqi government forces, that are widely known to comprise members of a rival Shia militia, the Badr Organisation.

Dozens of militiamen from both sides were killed in clashes that broke out in Baghdad, Basra, Kut, Samawa, Hilla and most of the Iraqi Shia southern provinces between the Mehdi Army and other militias supported by the U.S., Iran and the Iraqi government.

The Badr Organisation militia is headed by Abdul Aziz al-Hakim, who is also head of the Supreme Islamic Iraqi Council (SIIC) that dominates the government. The Dawa Party is headed by Iraqi Prime Minister Nouri al-Maliki.

The number of civilians killed and injured in the clashes is still unknown. Iraqi government offices continue to keep largely silent about the events.

"Every resident of Basra knew the situation would explode any minute between these oil thieves, and that Basra would suffer another wave of militia war," Salman Kathum, a doctor and former resident of Basra who fled for Baghdad last month told IPS.

For months now there has been a struggle between the Sadr Movement, the SIIC, and the al-Fadhila Party for control of the south, and particularly Basra.

Falah Shenshal, an MP allied to al-Sadr, told al-Jazeera Mar. 26 that al-Maliki was targeting political opponents. "They say they target outlaw gangs, but why do they start with the areas where the sons of the Sadr movement are located? This is a political battle...for the political interests of one party (al-Maliki's Dawa party) because the local elections are coming soon (due later this year)."

The fighting came just as the U.S. military announced the death of their 4,000th soldier in Iraq, and on the heels of a carefully crafted PR campaign designed to show that the "surge" of U.S. troops in Iraq has successfully improved the situation on the ground.

"I wonder what lies General David Petraeus (the U.S. forces commander in Iraq) will fabricate this time," Malek Shakir, a journalist in Baghdad told IPS. "The 25th March events revealed the true failure of the U.S. occupation project in Iraq. More complications are expected in the coming days."

Maliki has himself been in Basra to lead a surge against Mehdi Army militias while the U.S. sent forces to surround Sadr City in an attempt to support their Badr and Dawa allies.

News of limited clashes and air strikes have come from Sadr City, with unofficial reports of many casualties amongst civilians. Curfew in many parts of Baghdad and in four southern provinces had made life difficult already.

"This failure takes Iraq to point zero and even worse," Brigadier-General Kathum Alwan of the Iraqi army told IPS in Baghdad. "We must admit that the formation of our forces was wrong, as we saw how our officers deserted their posts, leaving their vehicles for militias."

Alwan added, "Not a single unit of our army and police stood for their duty in Baghdad, leaving us wondering what to do. Most of the officers who left their posts were members of Badr brigades and the Dawa Party, who should have been most faithful to Maliki's government."

The Green Zone of Baghdad where the U.S. embassy and the Iraqi government and parliament buildings are located, was hit by missiles. General Petraeus appeared at a press conference to accuse Iran of being behind the shelling of the zone that is supposed to be the safest area in Iraq. At least one U.S. citizen was killed in the attacks, and two others were injured.

"The Green Zone looked deserted as most U.S. and Iraqi personnel were ordered to take shelter deep underground," an engineer who works for a foreign company in the zone told IPS. "It seemed that this area too was under curfew. No place in Iraq is safe any more."

Further complicating matters for the occupiers of Iraq, the U.S.-backed Awakening groups, largely comprised of former resistance fighters, are now going on strike to demand overdue payment from the U.S. military.

John Yoo's war crimes

Go to Original
By Glenn Greenwald

Yet again, the ACLU has performed the function which Congress and the media are intended to perform but do not. As the result of a FOIA lawsuit the ACLU filed and then prosecuted for several years, numerous documents relating to the Bush administration’s torture regime that have long been baselessly kept secret were released yesterday, including an 81-page memorandum (.pdf) issued in 2003 by then-Deputy Assistant Attorney General John Yoo (currently a Berkeley Law Professor) which asserted that the President’s war powers entitle him to ignore multiple laws which criminalized the use of torture:

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.
As Jane Mayer reported two years ago in The New Yorker -- in which she quoted former Navy General Counsel Alberto Mora as saying that "the memo espoused an extreme and virtually unlimited theory of the extent of the President’s Commander-in-Chief authority" -- it was precisely Yoo’s torture-justifying theories, ultimately endorsed by Donald Rumsfeld, that were communicated to Gen. Geoffrey Miller, the commander of both Guantanamo and Abu Ghraib at the time of the most severe detainee abuses (the ones that are known).

It is not, of course, news that the Bush administration adopted (and still embraces) legal theories which vest the President with literally unlimited power, including the power to break our laws. There are, though, several points worth noting as a result of the disclosure of this Memorandum:

(1) The fact that John Yoo is a Professor of Law at Berkeley and is treated as a respectable, serious expert by our media institutions, reflects the complete destruction over the last eight years of whatever moral authority the United States possessed. Comporting with long-held stereotypes of two-bit tyrannies, we’re now a country that literally exempts our highest political officials from the rule of law, and have decided that there should be no consequences when they commit serious felonies.

John Yoo’s Memorandum, as intended, directly led to -- caused -- a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush’s White House counsel, Alberto Gonzales, and Dick Cheney’s counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.

If writing memoranda authorizing torture -- actions which then directly lead to the systematic commission of torture -- doesn’t make one a war criminal in the U.S., what does? Here is what John Yoo is and what he did:

"It depends on why the President thinks he needs to do that." Yoo wasn’t just a law professor theorizing about the legalization of torture. He was a government official who, in concert with other government officials, set out to enable a brutal and systematic torture regime, and did so. If this level of depraved criminality doesn’t remove one from the realm of respectability and mainstream seriousness -- if not result in war crimes prosecution -- then nothing does.

That John Yoo is a full professor at one of the country’s most prestigious law schools, and a welcomed expert on our newspaper’s Op-Ed pages and television news programs, speaks volumes about what our country has become. We sure did take care of that despicable Pvt. Lyndie England, though, because we don’t tolerate barbaric conduct of the type in which she engaged completely on her own.

(2) While Yoo’s specific Torture Memos were ultimately rescinded by subsequent DOJ officials -- primarily Jack Goldsmith -- the underlying theories of omnipotent executive power remain largely in place. The administration continues to embrace precisely these same theories to assert that it has the power to violate a whole array of laws -- from our nation’s spying and surveillance statutes to countless Congressional oversight requirements -- and to detain even U.S. citizens, detained on American soil, as "enemy combatants." So for all of the dramatic outrage that this Yoo memo will generate for a day or so, the general framework on which it rests, despite being weakened by the Supreme Court in Hamdan, is the one under which we continue to live, without much protest or objection.

(3) This incident provides yet more proof of how rancid and corrupt is the premise that as long as political appointees at the DOJ approve of certain conduct, then that conduct must be shielded from criminal prosecution. That’s the premise that is being applied over and over to remove government lawbreaking from the reach of the law.

That’s the central argument behind both telecom amnesty and protecting Bush officials from their surveillance felonies (it’s unfair to hold them accountable for their illegal spying behavior because the DOJ said they could do it). It’s the same argument that CIA Director Gen. Michael Hayden just made on Meet the Press as to why CIA interrogators should be immunized from the consequences of their illegal conduct ("when I go and tell him to do something in the shadows and point out to him it is perfectly lawful, that the Department of Justice has reviewed it . . . I need him to have confidence in that DOJ opinion").

The DOJ is not the law. They are not above the law and they do not make the law. They are merely charged with enforcing it. The fact that they assert that blatantly illegal conduct is legal does not make it so. DOJ officials, like anyone else, can violate the law and have done so not infrequently. High DOJ officials -- including Attorneys General -- have been convicted of crimes in the past and have gone to prison.

Embracing this twisted notion that the DOJ has the authority to immunize any conduct by high government officials or private actors from the reach of the law is a recipe for inevitable lawlessness. It enables the President to break the law, or authorize lawbreaking, simply by having his political appointees at DOJ -- including ideologues like John Yoo -- declare that he can do it. As these incidents ought to demonstrate rather vividly, the mere fact that Bush officials at the DOJ declare something to be legal cannot provide license to break the law with impunity.

(4) Since the Nuremberg Trials, "war criminals" include not only those who directly apply the criminal violence and other forms of brutality, but also government officials who authorized it and military officials who oversaw it. Ironically, the Bush administration itself argued in the 2006 case of Hamdan -- when they sought to prosecute as a "war criminal" a Guantanamo detainee whom they allege was a driver for Osama bin Laden -- that one is guilty of war crimes not merely by directly violating the laws of war, but also by participating in a conspiracy to do so.

That legal question was unresolved in that case, but Justices Thomas and Scalia both sided with the administration and Thomas wrote (emphasis added):

"[T]he experience of our wars," Winthrop 839, is rife with evidence that establishes beyond any doubt that conspiracy to violate the laws of war is itself an offense cognizable before a law-of-war military commission. . . . . In [World War II], the orders establishing the jurisdiction of military commissions in various theaters of operation provided that conspiracy to violate the laws of war was a cognizable offense. See Letter, General Headquarters, United States Army Forces, Pacific (Sept. 24, 1945), Record in Yamashita v. Styer, O. T. 1945, No. 672, pp. 14, 16 (Exh. F) (Order respecting the "Regulations Governing the Trial of War Criminals" provided that "participation in a common plan or conspiracy to accomplish" various offenses against the law of war was cognizable before military commissions).
The political reality is that high government officials in the U.S. are never going to be held accountable for war crimes. In practice, "international law" exists as a justifying instrument for powerful countries to impose their will on those which are less powerful, and war crimes tribunals are almost always a form of victor’s justice. So neither John Yoo, David Addington nor Alberto Gonzales, and certainly not their bosses at whose behest they were working, are going to be sitting in a dock charged with war crimes any time soon -- regardless of whether they ought to be.

But those who propound these principles and claim to believe in them ought to apply them consistently. John Yoo is not some misguided conservative legal thinker with whom one should have civil, pleasant, intellectually stimulating debates at law schools and on PBS. Respectfully debating the legality and justification of torture regimes, and treating systematic torture perpetrators like John Yoo with respect, isn’t all that far off from what Yoo and his comrades did. It isn’t pleasant to think about high government officials in one’s own country as war criminals -- that’s something that only bad, evil dictatorships have -- but, pleasant or not, it rather indisputably happens to be what we have.

UPDATE: Yale Law Professor Jack Balkin makes a critical point (h/t John Cole):

Lawyers can make really bad legal arguments that argue for very unjust things in perfectly legal sounding language. I hope nobody is surprised by this fact. It is very commonplace. Today we are talking about lawyers making arguments defending the legality of torture. In the past lawyers have used legal sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and non-spousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization. . . . .

Orin [Kerr] wants to know whether John [Yoo]’s theories are consistent with my views of the living constitution. If he wants to know as a substantive matter whether John’s theories of Presidential dictatorship are consistent with the Constitution’s text and underlying principles, they are not.

The fact that a lawyer does something in his capacity as a lawyer does not mean it’s proper, legitimate or legal. The fact that an argument is packaged in lawyerly wrapping doesn’t mean it’s reasonable or offered in good faith. All sorts of lawyers -- from those representing crime families to those representing terrorists -- have been convicted of crimes because they concealed and/or promoted their clients’ illegal acts. Lawyers aren’t any more immune from the rule of law than anyone else.

Harper’s Scott Horton makes the point in much the same way:

These memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it. They are the sort of handiwork we associate with the consigliere, or mob lawyer. But these consiglieri are government attorneys who have sworn an oath, which they are violating, to uphold the law.
Along those lines, Marcy Wheeler and Slate’s Emily Bazelon both demonstrate how un-lawyerly Yoo’s opinions were. Yoo wasn’t acting as a lawyer in order legally to analyze questions surrounding interrogation powers. He was acting with the intent to enable illegal torture and used the law as his instrument to authorize criminality.

* * * * *

DISCLOSURE: In the interest of full disclosure, it occurs to me, given my mention of the ACLU’s work here, that I ought to note that, as of six weeks ago or so, I began consulting with the ACLU on various matters. Obviously, I have been expressing the views in this post long, long before that began.

Building a Legal Framework for Torture

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By Jason Leopold

On Jan. 17, 2003, Mary Walker, the Air Force general counsel, received an urgent memo from the Pentagon’s top attorney. Attached to the classified document was a set of directives drafted two days earlier by Secretary of Defense Donald Rumsfeld.

"Establish a working group within the Department of Defense to assess the legal, policy and operational issues relating to the interrogations of detainees held by the U.S. Armed Forces in the war on terrorism," the directives said.

Among the issues to be addressed were “policy considerations with respect to the choice of interrogation techniques, including contribution to intelligence collection, effect on treatment of captured U.S. military personnel, effect on detainee prosecutions, historical role of U.S. armed forces in conducting interrogations, recommendations for employment of particular interrogation techniques by [Defense Department] interrogators."

Earlier this week, the Defense Department turned over an 81-page document to the American Civil Liberties Union in a Freedom of Information Act lawsuit that provides further insight into the extraordinary Executive Branch powers granted to President George W. Bush following the 9/11 attacks.

John Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, drafted the document, dated March 14, 2003. It essentially provided military interrogators with legal cover if they resorted to brutal and violent methods to extract information from prisoners.

"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network," Yoo wrote. "In that case, we believe that he could argue that the Executive Branch’s constitutional authority to protect the nation from attack justified his actions."

The legal opinion for military interrogators was virtually identical to an earlier memo that Yoo had written in August 2002 for CIA interrogators. Widely called the “Torture Memo,” it provided CIA interrogators with the legal authority to use long-outlawed tactics, such as waterboarding, when interrogating so-called high-level terrorist suspects.

But Yoo’s legal opinions were not entirely the work of Yoo.

Pentagon Frustrations

In early January 2003, commanders stationed at Guantanamo Bay prison in Cuba complained to Rumsfeld that military officials were unable to glean information from prisoners about alleged terrorist plots in the U.S. and abroad using conventional interrogation methods.

Following his conversation with military officials, on Jan. 15, 2003, Rumsfeld sent William Haynes II, the Pentagon’s general counsel, a memo requesting that he form a "working group" to determine what methods military interrogators could use to extract information from a prisoner at Guantanamo Bay.

Haynes asked the Justice Department’s Office of Legal Counsel for guidance and selected Walker to chair a "working group" to write a report on legally permissible interrogation techniques.

The members of the group included former Undersecretary of Defense for Policy Douglas Feith, officials from the Defense Intelligence Agency, representatives of the Joint Chiefs of Staff, and judge advocate generals (JAGs) from all four branches of the military.

By the time Walker’s group had settled in for its first meeting, interrogators at Guantanamo Bay had already begun to violate the Geneva Convention.

To ratchet up pressure on prisoners, U.S. military personnel were experimenting with unusual tactics, including placing women’s underwear on prisoners’ heads, a technique that later reappeared in Iraq’s Abu Ghraib prison.

A military official, who took part in discussions with Mary Walker’s group, told the Wall Street Journal in June 2004 that there was a growing frustration among interrogators.

"We’d been at this for a year-plus and got nothing out of them," the official said, adding that threats were even made against the families of detainees.

The official said the message to a detainee would be: "I’m on the line with somebody in Yemen and he’s in a room with your family and a grenade that’s going to pop unless you talk."

Framing the Debate

While Walker’s report was being drafted, the group discussed 35 different interrogation techniques that could be used to obtain information from prisoners.

Early drafts of the report advocated intimidating prisoners with dogs, removing prisoners’ clothing, shaving their beards, slapping prisoners in the face and waterboarding.

Though some of the more extreme techniques were dropped as the list was winnowed down to 24 from 35, the final set of methods still included tactics for isolating and demeaning a detainee, known as "pride and ego down."

Such degrading tactics violated the Geneva Convention, which bars abusive or demeaning treatment of captives.

The more extreme interrogation methods that made it into the final draft of the report rankled some of the JAGs, who feared the methods would put U.S. soldiers in danger if they were captured – and would tarnish the reputation and image of the U.S. abroad.

"Will the American people find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values,” wrote Rear Adm. Michael Lohr, a member of the "working group," in a February 2003 letter to Walker.

“How would such perceptions affect our ability to prosecute the Global War on Terrorism," asked Lohr.

The admiral was so upset with the draft report and the advice provided by the Justice Department that he requested Walker include a sentence in the final report making it clear that the legal findings were based exclusively on attorneys in the Justice Department’s Office of Legal Counsel.

Lohr was not alone. Maj. Gen. Jack Rives, who at the time was judge advocate general of the Air Force, also wrote a letter to Walker warning that the interrogation techniques in the report would violate military law.

"Several of the exceptional techniques, on their face, amount to violations of domestic criminal law and the [Uniform Code of Military Justice]," Rives wrote. "Treating detainees inconsistently with the [Geneva] Convention arguably ‘lowers the bar’ for the treatment of U.S. POW’s in future conflicts."

Maj. Gen. Thomas Romig, an Army JAG, and Brig. Gen. Kevin M. Sandkuhler, a Marine Corps JAG, also voiced concerns, specifically the determination that the President has the power to override the Uniform Code of Military Justice and other federal statutes and international treaties in the name of national security.

Defending Bush’s Authority

Walker’s group addressed these concerns, according to the report, by stating, in legal terms, that the President had the constitutional authority as Commander in Chief to ignore torture laws if national security were in jeopardy.

On March 6, 2003, eight days before Yoo issued his legal opinion, Walker sent Rumsfeld a draft 53-page "working group" report that said international treaties forbidding torture did not apply to prisoners held at Guantanamo Bay.

The report, which asserted that President Bush had "sweeping" powers as Commander in Chief, said Bush could suspend international laws and treaties governing torture in the name of national security.

"In order to respect the President’s inherent constitutional authority to manage a military campaign . . . (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority," the report stated.

The Justice Department could not prosecute military interrogators "who had acted pursuant to an exercise of the President’s constitutional power," the report added.

Further, the report said that if a prisoner died as a result of a brutal interrogation technique, the interrogator would not be subject to prosecution if he had acted in a "good faith" effort to save lives.

"Good faith may be a complete defense," the report said. "Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.”

The report cited a legal text, "Substantive Criminal Law" by Wayne LaFave and Austin W. Scott, to support the legality of the interrogation methods: "In particular, the necessity defense can justify the intentional killing of one person . . . so long as the harm avoided is greater."

Rumsfeld signed the final report on April 2, 2003, two weeks after Bush ordered U.S. forces to invade Iraq.

One year later, photos depicting U.S. soldiers abusing and humiliating detainees at Abu Ghraib prison in Iraq were publicly released.

Congressional Reaction

The tide began to turn against Yoo’s and Walker’s expansive attitudes toward presidential authority when Jack Goldsmith took over as chief of the Office of Legal Counsel and, by early 2004, had rescinded Yoo’s opinions.

On June 15, 2004, the Senate passed an amendment to the Defense Authorization Bill backed by Republican Sen. Lindsay Graham, to give JAGs the same legal authority as military attorneys, like Walker, who are appointed by the President.

The amendment, dubbed the “Mary Walker bill,” was spurred by complaints from JAGs who said Walker had ignored their legal concerns about the interrogation of detainees at Guantanamo Bay.

In February 2008, the Justice Department’s Office of Professional Responsibility (OPR) confirmed that it had launched a formal investigation into whether Yoo and other attorneys in the Office of Legal Counsel gave the White House poor legal advice in authorizing CIA interrogators to use waterboarding to glean information about terrorist plots from prisoners.

In effect, the legal opinions from Walker and Yoo sought to provide a basis for the Bush administration to circumvent U.S. and international laws prohibiting torture of prisoners.

Immediately after the 9/11 attacks, the United Nations Committee Against Torture reaffirmed the prohibitions contained in the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Convention – approved by 145 nations, including the United States – states that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

Moreover, the convention says individuals who resort to torture cannot defend their actions by saying they were acting on orders from superiors.

The United States signed the Convention Against Torture in 1988 under President Ronald Reagan, who hailed it as “a significant step” in preventing torture, which he called “an abhorrent practice unfortunately still prevalent in the world today.”

In a May 20, 1988, message to the U.S. Senate, Reagan noted that “the core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called ‘universal jurisdiction.’

“Each state party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”

It was this Convention, ratified by the Senate in 1994, that Walker, Yoo and other Bush administration officials sought to bypass.

Although the treaty mandates that the United States cooperate in the criminal prosecution of torturers, the administration’s post-9/11 legal opinions sought to shield American interrogators.

The Walker report, which was tailored to fit with Yoo’s legal arguments, advised military interrogators that they could defend their actions by saying Justice Department lawyers told them that their methods were legal.

American Grand Delusions

Go to Original
By Tom Engelhardt

Why the Testimony of General Petraeus Will Be Delusional

Yes, their defensive zone is the planet and they patrol it regularly. As ever, their planes and drones have been in the skies these last weeks. They struck a village in Somalia, tribal areas in Pakistan, rural areas in Afghanistan, and urban neighborhoods in Iraq. Their troops are training and advising the Iraqi army and police as well as the new Afghan army, while their Special Operations forces are planning to train Pakistan's paramilitary Frontier Corps in that country's wild, mountainous borderlands.
Their Vice President arrived in Baghdad not long before the government of Prime Minister Nouri al-Maliki launched its recent (failed) offensive against cleric Muqtada al-Sadr's Mahdi Army militia in the southern oil city of Basra. To "discuss" their needs in their President's eternal War on Terror, two of their top diplomats, a deputy secretary of state and an assistant secretary of state for South Asian affairs, arrived in Pakistan -- to the helpless outrage of the local press -- on the very day newly elected Prime Minister Yousaf Raza Gillani was being given the oath of office. ("I don't think it is a good idea for them to be here on this particular day… right here in Islamabad, meeting with senior politicians in the new government, trying to dictate terms..." was the way Zaffar Abbas, editor of the newspaper Dawn, put it.)
At home, their politicians have nationally televised debates in which they fervently discuss just how quickly they would launch air assaults against Pakistan's tribal areas, without permission from the Pakistani government but based on "actionable intelligence" on terrorists. Their drones cruise the skies of the world looking for terrorist suspects to -- in the phrase of the hour -- "take out." Agents from their intelligence services have, these last years, roamed the planet, kidnapping terrorist suspects directly off the streets of major cities and transporting them to their own secret prisons, or those of other countries willing to employ torture methods. Their spy satellites circle the globe listening in on conversations wherever they please, while their military has divided the whole planet into "commands," the last of which, Africom, was just formed.
As far as they are concerned, nowhere do their interests not come into play; nowhere, in fact, are they not paramount. As their President put it recently, "If [our] strategic interests are not in Iraq -- the convergence point for the twin threats of al Qaeda and Iran, the nation Osama bin Laden's deputy has called 'the place for the greatest battle,' the country at the heart of the most volatile region on Earth -- then where are they?" (And you could easily substitute the names of other countries for Iraq.)
Their President makes a habit of regularly telling other countries what they "must" do. "At the same time," he said recently, "the regimes in Iran and Syria must stop supporting violence and terror in Iraq." It's especially important to him and his officials that other nations not "interfere" in situations where, as in Iraq, they are so obviously "foreigners" and have no business; no fingers, that is, are to be caught in other people's cookie jars. Their Vice President made this point strikingly in an exchange with a TV interviewer:
"Q: So what message are you sending to Iran, and how tough are you prepared to get?
"Vice President: I think the message that the president sent clearly is that we do not want them doing what they can to try to destabilize the situation inside Iraq. We think it's very important that they keep their folks at home."
A range of other countries, all with a natural bent for "interference" or "meddling," must regularly be warned or threatened. After all, what needs to be prevented, according to a typical formulation of their President, is "foreign interference in the internal affairs of Iraq."
None of this advice do they apply to themselves for reasons far too obvious to explain. Wherever they go -- sometimes in huge numbers, usually well-armed, and, after a while, deeply entrenched in bases the size of small towns that they love to build -- they feel comfortable. They are, after all, defending their liberties by defending those of others elsewhere. Though there are natives of one brand or another everywhere, they consider themselves the planet's only true natives. Their motto might be: Wherever we hang our hats (or helmets) is home.
Others, who choose to fight them, automatically become aliens, intent as they are on destroying the stability of that planetary "home." So, for years, their military spokespeople referred to the Sunni insurgents they were battling in Iraq as "anti-Iraqi forces." It mattered little that almost all of them were, in fact, Iraqis; for the enemy is, by nature, so beyond the pale as to be a stranger to his or her own country or, just as likely, a cat's-paw of foreign forces and powers. Only when the very same "anti-Iraqi forces" suddenly decided to become allies were they suddenly granted the title, "concerned citizens," or even, more gloriously, "Sons of Iraq."
When off duty, their luckier soldiers have the option of taking "rest and recreation" in "the homeland" at places like the Hale Koa ("House of the Warrior") Hotel in Honolulu, Hawaii, or in the extended homeland at, say, the Edelweiss Lodge and Resort in the Bavarian Alps or the Dragon Hill Lodge near thrilling downtown Seoul, South Korea -- all part of their global system of Armed Forces Recreation Centers.
This is their world -- and welcome to it.
It's not exactly a mystery what country I'm talking about. You knew from the beginning. Since the Soviet Union vanished in 1991, only one nation has made itself at home everywhere on Earth; only one nation has felt that the planet's interests and its own interests were essentially one; only one nation's military garrisons and patrols our world from Greenland to the tropics, from the sea bed to the edge of space; only one nation's military talks about its vast array of bases as its "footprint" on the planet; only one nation judges its essential and exceptional goodness, in motivation if nothing else, as justification for any act it may take.
Putting an Iraqi Face on Iraq
Soon, U.S. surge commander General David Petraeus will return to Washington to report to Congress on our "progress" in Iraq -- and he'll do so with the worst crisis in that country in almost a year still unresolved. He'll do so, in fact, shrouded in yet another strategic disaster for the Bush administration. With that in mind, let's take a moment to look back at just how, militarily at least, the Bush administration first made itself at home in Iraq.
In the U.S., the administration's lack of planning for the occupation of Iraq -- starting with the wholesale looting of Baghdad after American troops had taken the capital -- has been the subject of much debate and discussion in Congress and the media. While it's usually noted in passing that, amid the chaos, orders had in fact been issued to American troops to guard the Oil Ministry, little is made of that. In fact, orders for U.S. troops to guard that ministry and the Interior Ministry, and nothing else, were indeed given, which simply indicates that administration planning was extremely focused -- on oil and the secret police (and perhaps Saddam Hussein's secret archives).
In addition, we know that the administration ignored the 13-volume "Future of Iraq" project put together by the State Department to guide an occupation -- largely because its neocon officials were so intent on sidelining the State Department more generally. On the other hand, the Pentagon did plan for what it thought would matter. Specifically, from a front-page April 19, 2003 New York Times article, we know that, by the time the invasion began, the Pentagon already had on the drawing boards plans for building four permanent mega-bases in Iraq. (They were meant to replace our bases in Saudi Arabia.) And these were indeed built (along with others and the largest embassy on the planet) in more or less the locations originally described. From the beginning, whatever planning it didn't do, the Bush administration was certainly planning to make itself at home in Iraq in a big way for a long, long time.
Much has also been made of the disastrous, seat-of-the-pants decision by the administration, in the person of L. Paul Bremer III, head of the Coalition Provisional Authority (CPA) then ruling Baghdad, to disband the Iraqi army. But few now recall what the administration, the CPA, and the Pentagon had in mind (and leaked to the press soon after the invasion) for a future Iraqi military of their dreams.
They had, in fact, reconceived the Iraqi army as a force of perhaps 40,000 lightly armed, largely border-guarding troops. Keep in mind that Saddam Hussein had a military of 400,000 heavily armed troops and -- until the First Gulf War in 1990 -- a powerful air force (as well as copious supplies of chemical weapons). In the Middle East, for a country to have only a 40,000 man military without tanks, artillery, or an air force to call on meant but one thing: that the U.S. military and the U.S. Air Force, from bases in Iraq and in the region, were to be Iraq's real fighting force in any crisis. This was the true planning message of the Bush administration and it indicated just how "at home" its officials thought they would be in occupied Iraq.
By the time it became obvious that such thinking was fantastical and George Bush was starting to repeat the mantra, "As Iraqis stand up, Americans will stand down," the idea of a 40,000-man force had been long forgotten. By then, the U.S. military was at work creating a large Iraqi army and national police force. But the effects of such planning remain debilitatingly present, even today.
After all, the "crack" Iraqi units sent into Basra by Prime Minister Maliki were still relatively lightly armed. (Hence, their complaints that the Sadrist militia they came up against were often better armed than they were.) They still had no significant Iraqi air force to call on, because as yet it hardly exists. When they got desperate, they had to call on U.S. and British air support as well as U.S. Special Forces units. And, of course, in the fighting in Basra, as in Baghdad where American units quickly entered the fray, they showed no particular flair for "standing up." In fact, according to the Associated Press's fine reporter Charles J. Hanley, the chief American trainer of Iraqi forces, Lt. Gen. James Dubik, now estimates that Iraq's military will not be able to guard the country's borders effectively until, at the earliest, 2018.
There was a period, back in 2004-05, when the Bush administration regularly wielded a telling image. They talked often about the importance of putting "an Iraqi face" on various aspects of the situation in that country. Here's a typical passage from the New York Times from that period: "By insisting that they not be identified, the three officers based in Baghdad were following a Pentagon policy requiring American commanders in Baghdad to put 'an Iraqi face' on the war, meaning that Iraqi commanders should be the ones talking to reporters, not Americans." This caught something of the strangeness of that moment, a strangeness that has yet to disappear. After all, as an image, to put a "face" on anything actually means to put a mask over an already present face, which was (and, even today, in military terms largely remains) American power in Iraq.
The presentation of the recent Maliki government offensive, launched on the eve of Petraeus's return, also represented, in part, an attempt to put an Iraqi face on American at-homeness in that country. The fictional story put out as the "Iraqi" offensive was launched -- printed up quite seriously in our media -- was that Maliki had only informed the American high command (and the British in Basra) of his prospective move in the hours just before it was launched. This was, on the face of it, ludicrous. The "Iraqi" army has been stood up -- trained, that is -- by U.S. advisors; some of its units have U.S. advisors embedded in them; it is almost totally reliant on the logistical support of the U.S. military. It could not move far offensively without the significant prior knowledge of U.S. commanders (and this was later admitted by the President's National Security Council Advisor Stephen J. Hadley).
While Maliki had his own reasons for launching his forces (and allied militias) against Muqtada al-Sadr's Mahdi Army in Basra, the Americans certainly imagined a triumphant moment for Petraeus in his upcoming hearings, thanks to new evidence that the Iraqi government was finally, in George Bush's words, "in the lead" and its military shaping up well. As Leila Fadel of the McClatchy Newspapers reported, "Pentagon spokesman Geoff Morrell said the Iraqi operation was a 'byproduct of the success' of the year-old U.S. troop surge." This was a fantasy, of course. And the result was the success of Sadr's forces from Basra to Baghdad -- and ongoing American attempts to disavow any real involvement in the planning of the offensive.
Grand Delusions
The United States is hardly the first empire whose representatives have felt at home anywhere in its world (if not, in past times, in the world). When you are at the peak of your imperial powers, you can ignore the problems and contradictions that such a feeling, such an attitude, naturally calls up. This is no longer the situation for the United States and so the contradictions ripen, the problems only grow, and the plunge into delusional thinking deepens.
Take just the seeming conundrum of the recent battle in Basra. On one side, you have an Iraqi army, trained for years by the Americans, to the tune of approximately $22 billion in U.S. funds. On the other side, you have an (at best) partially trained "militia" -- an "army" in name only. It may be that the Iranians have put some effort or money into equipping the Mahdi Army -- though the evidence for this is slim indeed -- but, if so, this would be minor by comparison.
When the two forces clashed, what was the result? Some Iraqi soldiers and policemen simply put down their weapons and, in certain cases, surrendered or went over to the other side, or deserted, or fought half-heartedly; while the Mahdis fought fiercely, cleverly, and, in the end, successfully, until called off in triumph by their leader. They "stood up" (just as they had against the full might of the American military in the southern holy city of Najaf back in 2004). Could there, then, be two different races of Iraqis, one set willing to fight with or without training or outside help, the other unwilling, no matter the support?
The American military faced a similar situation four decades ago in Vietnam, where American advisors training the South Vietnamese military regularly swore that they would turn in their brigades of Vietnamese troops for just a few platoons of Vietcong, who would stand and fight as if their lives depended on it.
Of course, the answer here is anything but mysterious. On the one hand, you have a foreign-trained, foreign-advised, foreign-supplied force with confused and divided loyalties that is only partially an "Iraqi" army; on the other, you have a local force, fighting in a community, for the safety and wellbeing of its own sons and wives, friends and relatives. The Mahdi Army members know why they fight and who they fight for. They have "faith," and not just in the religious sense. They are, in a word, at home.
The history of the last 200 years has regularly piled up evidence that this matters far more than firepower. Human beings, that is, regularly "stand up" for something other than shiny weapons or the interests of a foreign power, no matter how at home its leaders may think they are in your country. The inability to see this obvious point -- repeatedly and over decades -- represents delusional thinking stemming, at least in part, from an inability of Americans to imagine their own foreignness in the world.
In such cases, you misperceive who is on your side, why they are there, and what, exactly, they are capable of. You misunderstand what the actual natives of a place think of you. You don't grasp that, whatever the brute force and finances at your command, you, as a foreigner, may never understand the situation you believe you should control. Even the Maliki government itself, after all, is only "on our side" thanks to its abysmal weakness. (Otherwise, it would be far more closely allied with that other foreign power, Iran.) Sooner or later -- usually sooner -- you simply delude yourself. You mistake your trained army for an "Iraqi" or a "Vietnamese" one and so come to believe that, if only you adjust your counterinsurgency tactics correctly, it will fight like one. Then you act accordingly, which is, of course, disastrous.
Whatever General Petraeus says before Congress next week, however sane and pragmatic he sounds, however impressive looking his charts and graphs, it's worth keeping in mind that his testimony cannot help but be delusional, because it stems from delusional premises and it can lead only to further disaster for Americans and Iraqis.
Yes, of course, American planes and drones will continue to cruise the skies of the globe "taking out" enemies (or missing them and taking out citizens elsewhere whom we could care less about); American diplomats and high military officials will continue to travel the planet in packs, indicating, however politely, what politicians, military men, and diplomats elsewhere "must" do; and American military men will continue to train the Iraqi army in the hopes that, in 2018 if not sooner, it will stand up.
And yet, as long as we mistake ourselves for "the natives," as long as we are convinced that our interests are paramount everywhere, and feel that we must be part of the solution to every problem, our problems -- and the world's -- will only multiply.
Tom Engelhardt, who runs the Nation Institute's, is the co-founder of the American Empire Project. His book, The End of Victory Culture (University of Massachusetts Press), has been updated in a newly issued edition that deals with victory culture's crash-and-burn sequel in Iraq.
[Tomdispatch Recommendation: A recent Noam Chomsky piece, "We Own the World," took up an allied set of topics to those in this essay. It's a fascinating read and I urge you to check it out.]

General William Odom Tells Senate Rapid Withdrawal Is Only Solution

Go to Original

Two related audio files:

Media conference call with on April 1st.

Radio show with on March 17th.

Testimony before Senate Commitee on Foreign Relations:

Here’s the PDF.

By William E. Odom, LT General, USA, Ret.

2 April 2008

Good morning Mr. Chairman and members of the committee. It is an honor to appear before you again. The last occasion was in January 2007, when the topic was the troop surge. Today you are asking if it has worked. Last year I rejected the claim that it was a new strategy. Rather, I said, it is a new tactic used to achieve the same old strategic aim, political stability. And I foresaw no serious prospects for success.

I see no reason to change my judgment now. The surge is prolonging instability, not creating the conditions for unity as the president claims.

Last year, General Petraeus wisely declined to promise a military solution to this political problem, saying that he could lower the level of violence, allowing a limited time for the Iraqi leaders to strike a political deal. Violence has been temporarily reduced but today there is credible evidence that the political situation is far more fragmented. And currently we see violence surge in Baghdad and Basra. In fact, it has also remained sporadic and significant in
several other parts of Iraq over the past year, notwithstanding the notable drop in Baghdad and Anbar Province.

More disturbing, Prime Minister Maliki has initiated military action and then dragged in US forces to help his own troops destroy his Shiite competitors. This is a political setback, not a political
solution. Such is the result of the surge tactic.

No less disturbing has been the steady violence in the Mosul area, and the tensions in Kirkuk between Kurds, Arabs, and Turkomen. A showdown over control of the oil fields there surely awaits us. And the idea that some kind of a federal solution can cut this Gordian knot strikes me as a wild fantasy, wholly out of touch with Kurdish realities.

Also disturbing is Turkey’s military incursion to destroy Kurdish PKK groups in the border region. That confronted the US government with a choice: either to support its NATO ally, or to make good on its commitment to Kurdish leaders to insure their security. It chose the former, and that makes it clear to the Kurds that the United States will sacrifice their security to its larger interests in Turkey.

Turning to the apparent success in Anbar province and a few other Sunni areas, this is not the positive situation it is purported to be. Certainly violence has declined as local Sunni shieks have begun to cooperate with US forces. But the surge tactic cannot be given full credit. The decline started earlier on Sunni initiative. What are their motives? First, anger at al Qaeda operatives and second, their financial plight.

Their break with al Qaeda should give us little comfort. The
Sunnis welcomed anyone who would help them kill Americans,
including al Qaeda. The concern we hear the president and his aides
express about a residual base left for al Qaeda if we withdraw is utter
nonsense. The Sunnis will soon destroy al Qaeda if we leave Iraq.
The Kurds do not allow them in their region, and the Shiites,
like the Iranians, detest al Qaeda. To understand why, one need only
take note of the al Qaeda public diplomacy campaign over the past
year or so on internet blogs. They implore the United States to bomb
and invade Iran and destroy this apostate Shiite regime.
As an aside, it gives me pause to learn that our vice president
and some members of the Senate are aligned with al Qaeda on
spreading the war to Iran.

Let me emphasize that our new Sunni friends insist on being
paid for their loyalty. I have heard, for example, a rough estimate that
the cost in one area of about 100 square kilometers is $250,000 per
day. And periodically they threaten to defect unless their fees are
increased. You might want to find out the total costs for these deals
forecasted for the next several years, because they are not small and
they do not promise to end. Remember, we do not own these people.
We merely rent them. And they can break the lease at any moment.
At the same time, this deal protects them to some degree from the
government’s troops and police, hardly a sign of political

Now let us consider the implications of the proliferating deals
with the Sunni strongmen. They are far from unified among
themselves. Some remain with al Qaeda. Many who break and join
our forces are beholden to no one. Thus the decline in violence
reflects a dispersion of power to dozens of local strong men who
distrust the government and occasionally fight among themselves.
Thus the basic military situation is far worse because of the
proliferation of armed groups under local military chiefs who follow a
proliferating number of political bosses.

This can hardly be called greater military stability, much less
progress toward political consolidation, and to call it fragility that
needs more time to become success is to ignore its implications. At
the same time, Prime Minister Maliki’s military actions in Basra and
Baghdad, indicate even wider political and military fragmentation. We
are witnessing is more accurately described as the road to the
Balkanization of Iraq, that is, political fragmentation. We are being
asked by the president to believe that this shift of so much power and
finance to so many local chieftains is the road to political
centralization. He describes the process as building the state from
the bottom up.

I challenge you to press the administration’s witnesses this week to explain this absurdity. Ask them to name a single historical
case where power has been aggregated successfully from local
strong men to a central government except through bloody violence
leading to a single winner, most often a dictator. That is the history of
feudal Europe’s transformation to the age of absolute monarchy. It is
the story of the American colonization of the west and our Civil War.
It took England 800 years to subdue clan rule on what is now the English-Scottish border. And it is the source of violence in Bosnia and Kosovo.

How can our leaders celebrate this diffusion of power as
effective state building? More accurately described, it has placed the
United States astride several civil wars. And it allows all sides to
consolidate, rearm, and refill their financial coffers at the US expense.

To sum up, we face a deteriorating political situation with an
over extended army. When the administration’s witnesses appear
before you, you should make them clarify how long the army and
marines can sustain this band-aid strategy.

The only sensible strategy is to withdraw rapidly but in good order. Only that step can break the paralysis now gripping US
strategy in the region. The next step is to choose a new aim, regional
stability, not a meaningless victory in Iraq. And progress toward that
goal requires revising our policy toward Iran. If the president merely
renounced his threat of regime change by force, that could prompt
Iran to lessen its support to Taliban groups in Afghanistan. Iran
detests the Taliban and supports them only because they will kill
more Americans in Afghanistan as retaliation in event of a US attack
on Iran. Iran’s policy toward Iraq would also have to change radically as we withdraw. It cannot want instability there. Iraqi Shiites are Arabs, and they know that Persians look down on them. Cooperation between them has its limits.

No quick reconciliation between the US and Iran is likely, but
US steps to make Iran feel more secure make it far more conceivable
than a policy calculated to increase its insecurity. The president’s
policy has reinforced Iran’s determination to acquire nuclear
weapons, the very thing he purports to be trying to prevent.

Withdrawal from Iraq does not mean withdrawal from the
region. It must include a realignment and reassertion of US forces
and diplomacy that give us a better chance to achieve our aim.

A number of reasons are given for not withdrawing soon and completely. I have refuted them repeatedly before but they have more lives than a cat. Let try again me explain why they don’t make

First, it is insisted that we must leave behind military training
element with no combat forces to secure them. This makes no sense
at all. The idea that US military trainers left alone in Iraq can be safe
and effective is flatly rejected by several NCOs and junior officers I
have heard describe their personal experiences. Moreover, training foreign forces before they have a consolidated political authority to command their loyalty is a windmill tilt. Finally, Iraq is not short on military skills.

Second, it is insisted that chaos will follow our withdrawal. We
heard that argument as the “domino theory” in Vietnam. Even so, the
path to political stability will be bloody regardless of whether we
withdraw or not. The idea that the United States has a moral
responsibility to prevent this ignores that reality. We are certainly to
blame for it, but we do not have the physical means to prevent it.
American leaders who insist that it is in our power to do so are
misleading both the public and themselves if they believe it.
The real moral question is whether to risk the lives of more
Americans. Unlike preventing chaos, we have the physical means to
stop sending more troops where many will be killed or wounded. That
is the moral responsibility to our country which no American leaders
seems willing to assume.

Third, nay sayers insist that our withdrawal will create regional instability. This confuses cause with effect. Our forces in Iraq and our threat to change Iran’s regime are making the region unstable. Those who link instability with a US withdrawal have it exactly backwards. Our ostrich strategy of keeping our heads buried in the sands of Iraq has done nothing but advance our enemies’ interest.

I implore you to reject these fallacious excuses for prolonging the commitment of US forces to war in Iraq.

Thanks for this opportunity to testify today.