Emptywheel:bmaz: OPR Report Altered to Exculpate Bybee and Yoo

OPR Report Altered To Cover Bush DOJ Malfeasance
By: bmaz Friday January 29, 2010  


Mike Isikoff and Dan Klaidman put up a post about an hour ago letting the first blood for the Obama Administration’s intentional tanking of the OPR (Office of Professional Responsibility) Report. In light of Obama’s focused determination to sweep the acts of the Bush Administration, no matter how malevolent, under the rug and “move forward” the report is not unexpected. However, digesting the first leak in what would appear to be a staged rollout is painful:

…an upcoming Justice Department report from its ethics-watchdog unit, the Office of Professional Responsibility (OPR), clears the Bush administration lawyers who authored the “torture” memos of professional-misconduct allegations.

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.

The news broken in the Newsweek Declassified post is huge, assuming it is accurate, and the sense is that it is. In spite of the weight of the report, the report tucks the substantive content behind the deceptively benign title “Holder Under Fire”. The subject matter is far too significant though for it to have been casually thrown out. Consider this description of the OPR finding on the nature and quality of the critical August 1, 2002 Torture Memo:

The report, which is still going through declassification, will provide many new details about how waterboarding was adopted and the role that top White House officials played in the process, say two sources who have read the report but asked for anonymity to describe a sensitive document. Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

Hard to figure how this finding and conclusion could be determined by David Margolis to warrant the “softening” of the original finding of direct misconduct. Margolis is nearly 70 years old and has a long career at DOJ and is fairly well though of. Margolis was tasked by Jim Comey to shepherd Pat Fitzgerald’s Libby investigation. In short, the man has some bona fides.

Margolis is, however, also tied to the DOJ and its culture for over forty years, not to mention his service in upper management as Associate Attorney General during the Bush Administration when the overt acts of torture and justification by Margolis’ contemporaries and friends were committed. For one such filter to redraw the findings and conclusions of such a critical investigation in order to exculpate his colleagues is unimaginable.

One thing is for sure, with a leak like this being floated out on a late Friday night, the release of the full OPR Report, at least that which the Obama Administration will deem fit for the common public to see, is at hand. Mike Isikoff and Dan Klaidman have made sure the torturers and their enablers can have a comfortable weekend though. So we got that going for us.

Tom Burghardt: Global Research: Smoking Gun Disclosures of the Coverup of the Underwear Bomber Affair (Flight 253)

The interesting question that Burghardt raises is whether right wing Cheney embeds especially in the security apparat are in a conspiracy to embarrass and/or bring down the Obama administration. From where I sit, it's too early to say whether the Obama administration, i.e, Obama and Rahm Emanuel, knew in advance about the underwear bomber shenanigans. Obama first made statements to the effect that he'd punish the people responsible for not connecting the dots; statements he reversed within a week. Also notable was his 76 hour silence, consistent with his lack of foreknowledge. So we'll have to wait and see.

That being said, the article below leans too heavily for my taste on the side  of Obama as essentially a humane democrat, unwilling but forced into the ruthlessness that we have become accustomed to after 9/11. After all, the drone attacks started 3 days after he was in office. He deliberately fired the previous general in favor of McChrystal as top general in Afghanistan. And more. 

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The Obama Administration's Cover-up of the Flight 253 Affair

"New Smoking Gun" Disclosures

by Tom Burghardt

http://www.globalresearch.ca/index.php?context=va&aid=17184

Relevant questions begging for answers include: Who made the decision not to "connect the dots"? Are right-wing elements and holdovers from the previous administration actively conspiring to destabilize the Obama government? Was the attempted bombing a planned provocation meant to incite new conflicts in the Middle East and restrict democratic rights at home? 

As with the 9/11 attacks, these questions go unasked by corporate media. Indeed, such lines of inquiry are entirely off the table and are further signs that a cover-up is in full-swing, not a hard-hitting investigation. 

Nearly one month after passengers foiled an attempted suicide bomb attack aboard Northwest Airlines Flight 253 as it approached Detroit on Christmas Day, new information reveals that the White House and U.S. security agencies had specific intelligence on accused terrorist, Umar Farouk Abdulmutallab, far earlier than previously acknowledged. 

Along with new reports, evidence suggests that the administration's cover-up of the affair has very little to do with a failure by the intelligence apparatus to "connect the dots" and may have far more serious political implications for the Obama administration, and what little remains of a functioning democracy in the United States, than a botched bombing. 

What the White House and security officials have previously described only as "vague" intercepts regarding "a Nigerian" has now morphed into a clear picture of the suspect--and the plot.

The New York Times revealed January 18 that the National Security Agency "learned from a communications intercept of Qaeda followers in Yemen that a man named "Umar Farouk"--the first two names of the jetliner suspect, Umar Farouk Abdulmutallab--had volunteered for a coming operation."

According to Times' journalists Eric Lipton, Eric Schmitt and Mark Mazzetti, "the American intelligence network was clearly listening in Yemen and sharing that information." Indeed, additional NSA intercepts in December "mentioned the date of Dec. 25, and suggested that they were 'looking for ways to get somebody out' or 'for ways to move people to the West,' one senior administration official said."

Clearly, the administration was "worried about possible terrorist attacks over the Christmas holiday." These concerns led President Obama to meet December 22 "with top officials of the C.I.A., F.B.I. and Department of Homeland Security, who ticked off a list of possible plots against the United States and how their agencies were working to disrupt them," the Times reports.

"In a separate White House meeting that day" the Times disclosed, "Mr. Obama's homeland security adviser, John O. Brennan, led talks on Yemen, where a stream of disturbing intelligence had suggested that Qaeda operatives were preparing for some action, perhaps a strike on an American target, on Christmas Day."

In mid-January, Newsweek reported that the "White House report on the foiled Christmas Day attempted airliner bombing provided only the sketchiest of details about what may have been the most politically sensitive of its findings: how the White House itself was repeatedly warned about the prospect of an attack on the U.S.," Mark Hosenball and Michael Isikoff disclosed.

According to the newsmagazine, "intelligence analysts had 'highlighted' an evolving 'strategic threat,'" and that "'some of the improvised explosive device tactics AQAP might use against U.S. interests were highlighted' in other 'finished intelligence products'." 

However, the real bombshell came last Wednesday during hearings before the Senate Homeland Security and Governmental Affairs Committee when Bushist embed, and current Director of the National Counterterrorism Center (NCTC), Michael E. Leiter, made a startling admission. 

CongressDaily reported on January 22 that intelligence officials "have acknowledged the government knowingly allows foreigners whose names are on terrorist watch lists to enter the country in order to track their movement and activities." 

Leiter told the Committee: "I will tell you, that when people come to the country and they are on the watch list, it is because we have generally made the choice that we want them here in the country for some reason or another."

CongressDaily reporter Chris Strohm, citing an unnamed "intelligence official" confirmed that Leiter's statement reflected government policy and told the publication, "in certain situations it's to our advantage to be able to track individuals who might be on a terrorist watch list because you can learn something from their activities and their contacts."

An alternative explanation fully in line with well-documented inaction, or worse, by U.S. security agencies prior to the September 11, 2001 terrorist attacks and now, Christmas Day's aborted airline bombing, offer clear evidence that a ruthless "choice" which facilitates the murder of American citizens are cynical pretexts in a wider game: advancing imperialism's geostrategic goals abroad and attacks on democratic rights at home.

Leiter's revelation in an of itself should demolish continued government claims that the accused terror suspect succeeded in boarding NW Flight 253 due to a failure to "connect the dots."

However, as far as Antifascist Calling can determine, no other media outlet has either reported or followed-up CongressDaily's disclosure; a clear sign that its explosive nature, and where a further investigation might lead, are strictly off-limits. 

Taking into account testimony by a high-level national security official that terrorists are allowed to enter the country for intelligence purposes, one can only conclude that the alleged "failure" to stop Abdulmutallab was neither a casual omission nor the result of bureaucratic incompetence but rather, a highly-charged political calculation. 

Bushist Embeds: Destabilizing the Obama Administration? 

One subject barely explored by corporate media throughout the Flight 253 affair, is the unsettling notion that the aborted Christmas day bombing may have been a move by rightist elements within the security apparatus to destabilize the Obama administration, a course of action facilitated by the Obama government itself as we will explore below. 

This is not as implausible as it might appear at first blush. When one takes into account the meteoric rise to power by the 40-year-old former Navy pilot and federal prosecutor, Michael Leiter's ascent tracks closely with his previous service as a cover-up specialist for the Bush-Cheney regime.

"In 2004, while working as a federal prosecutor," a New York Times puff piece informs us, "Mr. Leiter joined the staff of a commission, appointed by President George W. Bush, to examine intelligence failures leading up to the war in Iraq. That led to a series of jobs in the intelligence

world, and in 2008, Mr. Bush appointed him director of the counterterrorism center." 

A rather curious appointment, if Leiter were simply an ingénue with no prior experience in the murky world of intelligence and covert operations. However the former Navy pilot, who participated in the U.S. wars of aggression against the former Yugoslavia and Iraq seemed to have the requisite qualifications for work as an intelligence "specialist."


While attending Harvard Law School, Leiter served as a "human rights fellow" with the International Criminal Tribunal for the former Yugoslavia in The Hague, the U.S.-sponsored kangaroo court that has prosecuted America's official enemies in the Balkans whilst covering-up the crimes of their partners.


Amongst America's more dubious "allies" in the decade-long campaign to destabilize socialist Yugoslavia were al-Qaeda's Islamist brigade, responsible for carrying-out hideous massacres in Bosnia and Kosovo, with NATO approval and logistical support, as Global Research analyst Michel Chossudovsky, and others, have thoroughly documented.


As Deputy General Counsel and Assistant Director of the President's Commission on the Intelligence Capabilities of the United States, the so-called "Robb-Silberman" cover-up commission, Leiter focused on what are euphemistically described in the media as "reforms" with the U.S. "Intelligence Community," including the stand-up of the FBI's repressive National Security Branch.


Prior to joining NCTC, Leiter was the Deputy Chief of Staff for the Office of the Director of National Intelligence under former NSA Director and ten-year senior vice president of the spooky Booz Allen Hamilton security firm, John "Mike" McConnell.


From his perch in ODNI, Leiter coordinated all internal and external operations for the Office, including relations with the White House, the Department of Homeland Security and the CIA.


Leiter's résumé, and his role in concealing Bush administration war crimes, predicated on ginned-up "intelligence" invented by Dick Cheney's minions in the Defense Department and the CIA, should have sent alarm bells ringing inside the incoming Obama administration.


As we have seen since Obama's inauguration however, rather than cleaning house--and settling accounts--with the crimes, and criminals, of the previous regime, the "change" administration chose to retain senior- and mid-level bureaucrats in the security apparatus; employing officials who share the antidemocratic ideology, penchant for secrecy and ruthlessness of the Bush administration.


While the Times claims his "unblemished résumé" has taken a hit over the Flight 253 plot, an interview with National Public Radio shortly before the Abdulmutallab affair, provides chilling insight into Leiter's agenda, particularly in light of his January 20 statement to the Senate Homeland Security Committee.


Presciently perhaps, the NCTC chief told NPR: "We're not going to stop every attack. Americans have to very much understand that it is impossible to stop every terrorist event. But we have to do our best, and we have to adjust, based on, again, how the enemy changes their tactics."


It becomes a painfully simple matter for "the enemy" to gain advantage and "change their tactics" when those charged with protecting the public actually facilitate their entrée into the country "for some reason or another"!


According to the Times, the White House has kept Leiter at the helm and that it came as "no surprise to Bush officials" because, get this, "Michael wasn't political," if we're to believe the carefully-constructed legend of former Bushist Deputy National Security Adviser Juan Zarate.


If the Bush-Cheney years tell us anything it's that appointments by the previous regime were ruthlessly political. As The Washington Post reported shortly after Obama's election, these appointments were made permanent across a multitude of federal agencies and departments, including the security apparat, in a cynical maneuver designed to reward Bush loyalists.


"The transfer of political appointees into permanent federal positions" the Post disclosed, "called 'burrowing' by career officials, creates security for those employees, and at least initially will deprive the incoming Obama administration of the chance to install its preferred appointees in some key jobs."


The Times reports that the White House has publicly defended Leiter "and aides to the president said Mr. Obama called to convey his support." Perhaps not so curiously, the allegedly "nonpolitical" NCTC Director "has been mentioned as a possible future head of the Central Intelligence Agency, and how he performs might help determine whether he remains on the fast track."


One can only wonder, how many other counterterrorist officials have "burrowed" their way into, and hold key positions in the current administration, ticking political time-bombs inside America's permanent shadow government.


Senate Whitewash Fuel Attacks on Democratic Rights


During Wednesday's Senate hearings, Obama's Director of National Intelligence, Admiral Dennis C. Blair, in keeping with the former Bush administration's assault on democratic rights, assailed the decision by the Justice Department to try the suspect in a court of law.


This is fully in line with the rhetoric of ultra-right Republicans and so-called "centrist Democrats" such as arch neocon Senator Joseph Lieberman.


Newsweek reports that new details "surrounding the Christmas Day interrogation of the bombing suspect aboard Northwest Flight 253 raise questions about the accuracy of testimony provided Wednesday by senior U.S. intelligence and Homeland Security officials."


Last week, the newsmagazine reported that "Obama administration officials were flabbergasted Wednesday when Director of National Intelligence Adm. Dennis Blair testified that an alleged Qaeda operative who tried to blow up a U.S. airliner on Christmas Day should have been questioned by a special interrogation unit that doesn't exist, rather than the FBI."


This theme was quickly picked-up by Senate Republicans.


The overarching sentiments expressed by this gaggle of war criminals and corporate toadies was not to demand accountability from the responsible parties, but to call for further attacks on Americans' democratic rights.


Republicans on the committee lambasted Obama's Justice Department for its decision to try Abdulmutallab in a civilian court. John McCain (R-AZ), the Republican party's failed candidate in the 2008 presidential election, said the decision was "a terrible, terrible mistake," while the execrable Jeff Sessions (R-AL) claimed that the hapless suspect should have been delivered to the U.S. military as an "enemy combatant."


Ranking Republicans on the committee, Susan Collins (R-ME) and John Ensign (R-NV) went so far as to imply that Abdulmutallab should have been tortured. Collins inquired: "how can we uncover plots" if accused criminal suspects are allowed to "lawyer up and stop answering questions?" Ensign, a staunch supporter of policies articulated by the Bush administration, particularly former Vice President and war criminal, Dick Cheney, argued that "limiting" CIA interrogators to the methods laid out in the Army Field Manual would allow terrorists to "train" in advance of interrogations.


But the harshest criticism of the administration came in the form of a stealth attack by Obama's own Director of National Intelligence, Admiral Blair.


The Wall Street Journal reported January 21 that "nation's intelligence chief said the man accused of trying to blow up an airliner on Christmas Day should have been questioned by a special interrogation team instead of being handled as an ordinary criminal suspect."


Rather than coming to terms and halting the Bush regime's practice of torturing so-called terrorist suspects, the Obama administration has compounded the crime by creating a secretive group of interrogators called the High-Value Interrogation Group or HIG.


Blair told the Senate that the administration had "botched" the handling of suspect Abdulmutallab, by, wait, not handing him over to a group that as of this writing, exists only on paper, a salient fact of which Blair was certainly knowledgeable!


In his testimony however, the DNI told the Homeland Security Committee that the HIG "was created exactly for this purpose--to make a decision on whether a certain person who's detained should be treated as a case for federal prosecution or for some of the other means."


Blair implicitly criticized the Justice Department's decision to uphold constitutional protections that guarantee a suspect a right to a trial in a court of law and not a one-way ticket to an American gulag. Blair said, "we did not invoke the HIG in this case; we should have. Frankly, we were thinking more of overseas people and, duh, you know, we didn't put it [in action] then."


Mendaciously, the DNI claimed "I was not consulted. The decision was made on the scene, [and] seemed logical to the people there, but it should have been taken using this HIG format, at a higher level."


Newsweek reporter Michael Isikoff disclosed January 20 that "senior administration officials" told him that Blair was "misinformed on multiple levels" and that the DNI's assertions were "all the more damaging because they immediately fueled Republican criticism that the administration mishandled the Christmas Day incident in its treatment of the accused Qaeda operative as a criminal suspect rather than an enemy combatant."


Isikoff reported January 22 that Blair, Leiter and Homeland Security Secretary Janet Napolitano were asked about the decision to try Abdulmutallab and all gave the same answer when queried by right-wing Senator Susan Collins, the Committee's ranking Republican: "Were you consulted regarding the decision to file criminal charges against [suspect Umar Farouk] Abdulmutallab in civilian court?"


Leiter and Napolitano both replied: "I was not." According to Newsweek, Blair also said he was "not consulted" and claims that the government "should have" brought in the yet-to-be activated HIG "to conduct the questioning of the suspect."


As with every aspect of this strange affair, Newsweek reports, these statements are riddled with lies and mischaracterizations.


Isikoff writes that "all the relevant national-security agencies, including top aides to Blair and Napolitano, were fully informed about the plans to charge the suspect in federal court hours before he was read his Miranda rights and stopped cooperating."



Newsweek further reveals that a "key event" was a secure videoconference on Christmas Day "that included Leiter" and Jane Lute, DHS' No. 2 official and that "neither Leiter nor any of the other participants, including representatives from the FBI and the CIA, raised any questions about the Justice Department's plans to charge the suspect in federal court, the officials said."


"If you participate in a conference call and you don't raise any objections, that suggests you were consulted," said one senior law-enforcement official. Another added that "nobody at any point" raised any objections, either during the meeting or during a four-hour period afterward when Abdulmutallab was informed of his Miranda rights to be represented by a lawyer," according to Newsweek.


Ultra-right Senator Kit Bond (R-MO), the vice chairman of the Senate Intelligence Committee and a witting accomplice to the previous regime's high crimes and misdemeanors against the American people said, "That this administration chose to shut out our top intelligence officials and forgo collecting potentially life-saving intelligence is a dangerous sign."


It's a "dangerous sign" to be sure, for America's battered democracy.


An On-Going Cover-Up


As events continue to unfold and new information shreds the official story, is Leiter's chilling testimony that suspected terrorists are allowed to enter the United States "because we have generally made the choice that we want them here in the country for some reason or another," merely a banal slip or something far more sinister that betrays the real order of things in post-democratic America?


Relevant questions begging for answers include: Who made the decision not to "connect the dots"? Are right-wing elements and holdovers from the previous administration actively conspiring to destabilize the Obama government? Was the attempted bombing a planned provocation meant to incite new conflicts in the Middle East and restrict democratic rights at home?


As with the 9/11 attacks, these questions go unasked by corporate media. Indeed, such lines of inquiry are entirely off the table and are further signs that a cover-up is in full-swing, not a hard-hitting investigation.


In truth, what we are dealing with here as we stagger into the second decade of the 21st century, is not a "conspiracy" per se but a modus operandi as the World Socialist Web Site has argued, rooted in a bankrupt system quickly reaching the end of the line.

Tom Burghardt is a frequent contributor to Global Research. Global Research Articles by Tom Burghardt