Waking From a Bad Dream

By Dan Froomkin
Special to washingtonpost.com
Tuesday, January 6, 2009; 1:20 PM

It has been like a national nightmare: We are attacked by terrorists and our leaders respond not with courage and a call to our higher natures, but by spreading fear -- and turning us into a regime of torturers. Rather than celebrate our Constitution and its enduring values, they use the levers of government to subvert it.

Now the nightmare appears to be almost over.

By choosing two vocal opponents of torture for two key positions -- Dawn Johnsen to head the Justice Department's Office of Legal Counsel and Leon Panetta to head the Central Intelligence Agency -- President-elect Barack Obama has indicated that he intends to make the cleanest possible break from Bush administration precedents, end torture and return to traditional interpretations of the Constitution.

Greg Gordon writes for McClatchy Newspapers: "In filling four senior Justice Department positions Monday, President-elect Barack Obama signaled that he intends to roll back Bush administration counterterrorism policies authorizing harsh interrogation techniques, warrantless spying and indefinite detentions of terrorism suspects.

"The most startling shift was Obama's pick of Indiana University law professor Dawn Johnsen to take charge of the Office of Legal Counsel, the unit that's churned out the legal opinions that provided a foundation for expanding President George W. Bush's national security powers.

"Johnsen, who spent five years in the Office of Legal Counsel during the Clinton administration and served as its acting chief, has publicly assailed 'Bush's corruption of our American ideals.' Upon the release last spring of a secret Office of Legal Counsel memo that backed tactics approaching torture for interrogations of terrorism suspects, she excoriated the unit's lawyers for encouraging 'horrific acts' and for advising Bush 'that in fighting the war on terror, he is not bound by the laws Congress has enacted.'

"'One of the refreshing things about Dawn Johnsen's appointment is that she's almost a 180-degree shift from John Yoo and David Addington and (Vice President) Dick Cheney,' said Harvard University law professor Laurence Tribe, referring to the main legal architects of the administration's approval of harsh interrogation tactics.

Pamela Hess writes for the Associated Press: "Obama is sending an unequivocal message that controversial administration policies approving harsh interrogations, waterboarding and extraordinary renditions -- the secret transfer of prisoners to other governments with a history of torture -- and warrantless wiretapping are over, said several officials."

Carrie Johnson and Robert Barnes write in The Washington Post: "Johnsen, who led the office in an interim capacity during the Clinton administration, has been outspoken about what she called overly expansive views of executive power that the Justice Department has adopted in recent years. In congressional testimony last spring, Johnsen said legal interpretations were 'tainted by the administration's desired policy ends and overriding objective of expanding presidential power.'"

Johnson and Barnes also note in a blog post: "In an interview before the election, Johnsen told the Washington Post that a review of all of the Bush era legal opinions would be a major undertaking for the new administration."

Eric Lichtblau writes in the New York Times: "Many of Mr. Obama's picks in other cabinet departments have taken on a decidedly centrist bent. But at the Justice Department, where controversial Bush administration policies like interrogation tactics and eavesdropping will come under review, the nomination of Eric H. Holder Jr. as attorney general last month and Monday's selections of four top aides suggested a strong effort to stake out a new direction."

The Panetta appointment is also enormously significant. As last month's bipartisan Senate report so vividly explained, the abuse of detainees by military personnel could be linked back to memos signed by Bush and his top aides. But only the CIA received explicit White House permission to engage in practices such as waterboarding.

Anne E. Kornblut and Joby Warrick write in The Washington Post: "President-elect Barack Obama stunned the national intelligence community by selecting Clinton White House chief of staff Leon E. Panetta, a longtime Washington insider with little intelligence experience, to serve as the next head of the CIA. . . .

"Panetta, a former eight-term member of Congress who has run a think tank in California for the past decade, has no significant ties to the agency that Obama has criticized for using harsh interrogation methods. Panetta has openly objected to the use of such methods, writing in an essay last year that the United States 'must not use torture under any circumstances.'"

Jonathan S. Landay and Margaret Talev write for McClatchy Newspapers: "Panetta's selection suggests that Obama intends to shake up the agency, which has had little public accounting of its role in detaining top terror suspects and transferring others to regimes known to use torture, a procedure known as extraordinary rendition. . . .

"'He will be an outsider and I think the president wants an outsider's perspective on the CIA,' said Lee Hamilton, a former Indiana congressman and a former chairman of the House Permanent Select Committee on Intelligence who heads the Woodrow Wilson Center in Washington. 'The intelligence community has lost a lot of confidence with the American people and the Congress. I'm talking about 9/11, the Iraq war.'"

In Johnsen's Words

Johnsen has been outspoken not only in her opposition to torture, but in her assertion of the public's right to know what's been done in its name.

Here's Johnsen writing for Slate on March 18, 2008: "The question how we restore our nation's honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .

"We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure."

Here she is again on Slate on April 3, 2008, responding to what I've called the Abu Ghraib Memo: "Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it--all demand our outrage.

"Yes, we've seen much of it before. And yes, we are counting down the remaining months. But we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise, our own deep cynicism, about the possibility for a President and presidential lawyers to respect legal constraints, itself will threaten the rule of law -- and not just for the remaining nine months of this administration, but for years and administrations to come."

Here are a few of her academic papers: What's a President to Do: Interpreting the Constitution in the Wake of the Bush Administration's Abuses? and Faithfully Executing the Laws: Internal Legal Constraints on Executive Power.

Bloggers Glenn Greenwald and Hilzoy do even more digging into her work.

In Panetta's Words

Panetta contributed to a special Washington Monthly issue in early 2008 entitled "No Torture, No Exceptions."

He wrote: "Fear is blinding, hateful, and vengeful. It makes the end justify the means. And why not? If torture can stop the next terrorist attack, the next suicide bomber, then what's wrong with a little waterboarding or electric shock?

"The simple answer is the rule of law. Our Constitution defines the rules that guide our nation. It was drafted by those who looked around the world of the eighteenth century and saw persecution, torture, and other crimes against humanity and believed that America could be better than that. This new nation would recognize that every individual has an inherent right to personal dignity, to justice, to freedom from cruel and unusual punishment.

"We have preached these values to the world. We have made clear that there are certain lines Americans will not cross because we respect the dignity of every human being. That pledge was written into the oath of office given to every president, "to preserve, protect, and defend the Constitution." It's what is supposed to make our leaders different from every tyrant, dictator, or despot. We are sworn to govern by the rule of law, not by brute force.

"We cannot simply suspend these beliefs in the name of national security. Those who support torture may believe that we can abuse captives in certain select circumstances and still be true to our values. But that is a false compromise. We either believe in the dignity of the individual, the rule of law, and the prohibition of cruel and unusual punishment, or we don't. There is no middle ground."

Panetta Opposition?

Greg Miller and Christi Parsons write in the Los Angeles Times: "Sen. Dianne Feinstein (D-Calif.), who this week begins her tenure as the first female head of the Senate Intelligence Committee, said she was not consulted on the choice and indicated she might oppose it.

"'I was not informed about the selection of Leon Panetta to be the CIA director,' Feinstein said. 'My position has consistently been that I believe the agency is best served by having an intelligence professional in charge at this time.'

"A senior aide to Sen. John D. Rockefeller IV (D-W.Va.), the outgoing chairman of the Senate Intelligence Committee, said the senator 'would have concerns' about a Panetta nomination."

But for leading Congressional Democrats to criticize Panetta could be considered a sign that he represents real change.

As Ryan Powers notes for Thinkprogress, "when it came to approving of Bush nominees who defended torture, illegal wirteapping, and the Iraq war, Feinstein and Rockefeller never complained."

And even the Wall Street Journal editorial board this morning makes some interesting points about Democratic complicity -- albeit while pursuing its the argument that Democrats should drop what it calls a "'torture' vendetta against intelligence officials who were acting in good faith and with the full knowledge of key Members of Congress."

The board writes: "Mr. Panetta and Director of National Intelligence-designate Dennis Blair will soon have to decide if they want to join the left-wing crusade to purge their agencies of anyone who had anything to do with 'torture.'

"In particular, at their nomination hearings they're likely to be asked to support a 'truth commission' on the Bush Administration's terrorist interrogation policies. We hope they have the good sense to resist. And if they need any reason to push back, they could start by noting the Members of Congress who would be on the witness list to raise their right hands.

"Beginning in 2002, Nancy Pelosi and other key Democrats (as well as Republicans) on the House and Senate Intelligence Committees were thoroughly, and repeatedly, briefed on the CIA's covert antiterror interrogation programs. They did nothing to stop such activities, when they weren't fully sanctioning them. If they now decide the tactics they heard about then amount to abuse, then by their own logic they themselves are complicit."

A Case Study

New York Times reporters Jan Perlez, Raymond Bonner and Salman Masood recount the horrific ordeals of Muhammad Saad Iqbal, a Pakistani who was seized by the C.I.A. after 9/11, rendered to Egypt for interrogation in a secret prison, then sent on to Bagram Airbase and Guantanamo.

Iqbal, who spent six years in American custody, "was never convicted of any crime, or even charged with one. He was quietly released from Guantánamo with a routine explanation that he was no longer considered an enemy combatant, part of an effort by the Bush administration to reduce the prison's population."

The Times reporters explain: "Mr. Iqbal was arrested early in 2002 in Jakarta, Indonesia, after boasting to members of an Islamic group that he knew how to make a shoe bomb, according to two senior American officials who were in Jakarta at the time.

"Mr. Iqbal now denies ever having made the statement, but two days after his arrest, he said, the Central Intelligence Agency transferred him to Egypt. He was later shifted to the American prison at Bagram Air Base in Afghanistan, and ultimately to Guantánamo Bay."

Iqbal told the Times that he was beaten, subjected to electric shocks and given drugs by the Egyptians. Afterwards, "the Americans flew him to Bagram, the American air base outside the Afghan capital, Kabul. He was held there for almost a year, at times shackled and handcuffed in a small cage with other detainees, and further interrogated, he said.

"'A C.I.A. person said, "We forgive you; just accept you met Osama bin Laden." I said, "No, I'm not going to say that."' Even though polygraph tests showed that he was telling the truth, he said, he was shifted from cell to cell every few hours and deprived of sleep for six months. . . .

"The Pentagon and the C.I.A. have a policy of not talking about the detainees, but a C.I.A. spokesman, Paul Gimigliano, said, 'The agency's terrorist detention program has used lawful means of interrogation, reviewed and approved by the Department of Justice and briefed to the Congress.

"'This individual, from what I have heard of his account, appears to be describing something utterly different,' Mr. Gimigliano added. 'I have no idea what he's talking about. The United States does not conduct or condone torture.'"

Obama on the Hill

Paul Kane, Lori Montgomery and Shailagh Murray write in The Washington Post: "President-elect Barack Obama arrived on Capitol Hill yesterday and immediately set to work reassuring skeptical Republicans about his massive economic stimulus package -- part of a campaign that earned him praise for seeking their input but questions from those averse to hundreds of billions of dollars in new spending.

"Pitching a plan that is expected to include $300 billion in tax cuts, Obama pledged to consult Republican leaders, who until yesterday had been left out of negotiations between the president-elect's advisers and congressional Democratic staff.

"'The monopoly on good ideas does not belong to a single party. If it's a good idea, we will consider it,' Obama told House and Senate leaders at an hour-long closed-door meeting, according to one attendee.

Minority Leader John A. Boehner (R-Ohio) "suggested the legislation would likely be signed into law by mid-February, but the president-elect said yesterday that he would like the House and Senate to present him with a bill by the end of January or beginning of February.

"'The economy is very sick,' Obama said. 'The situation is getting worse. . . . We have to act and act now to break the momentum of this recession.'"

Jim Puzzanghera and Christi Parsons write in the Los Angeles Times: "Obama is set to provide more details of his stimulus plan in a speech later this week. The majority of the package would be new government spending, with a focus on roads, bridges and other infrastructure projects.

"He said the bulk of the proposed tax cuts reflected his campaign pledge to help middle-class families.

"'There is a happy convergence between what I had pledged during the campaign and what's required for the economy, right now, to put more money into the pockets of ordinary Americans who are more insecure about their jobs, who are continuing to see rising costs in an area like healthcare, who are struggling to make ends meet,' Obama told reporters after a meeting with his economic team Monday."

Darfur Watch

Sheryl Gay Stolberg writes in the New York Times: "With just 15 days left in office, President Bush announced Monday that he had ordered an immediate airlift to deliver vehicles and equipment to the war-torn Darfur region of Sudan to bolster a struggling international peacekeeping effort there.

"Mr. Bush waived a requirement that he notify Congress 15 days before undertaking such a mission, because waiting would 'pose a substantial risk to human health and welfare,' the White House national security adviser, Stephen J. Hadley, said in a statement.

"The White House said the airlift had been in the planning stages for months. But some human rights activists expressed puzzlement at the timing of the move, a little more than two weeks before the inauguration of Barack Obama. Mr. Obama has vowed more aggressive action in Darfur, including imposition of a no-flight zone, a move Mr. Bush has declined to make. . . .

"In his statement on Monday, Mr. Hadley, the national security adviser, said the airlift was 'further evidence' that harsh criticism of the Bush administration's approach in Darfur by Nicholas D. Kristof, an opinion columnist for The New York Times, was inaccurate.

"On Dec. 28, Mr. Kristof wrote that the White House had ignored a 'menu of options for tough steps to squeeze Sudan,' including destroying its air force, put forth by the administration's own special envoy to the region, Richard Williamson. Mr. Kristof also accused Mr. Hadley and Secretary of State Condoleezza Rice of 'acquiescence in genocide.'"

Kristof responded in a blog post titled The White House denounces me: "Look, I'm delighted that the White House is, belatedly, organizing this airlift. It sure smells of a desperate effort to burnish the administration's legacy on Darfur, but better late than never. . . .

"The fact is that President Bush has seemed genuinely interested in Sudan and Darfur. . . .

"What Bush hasn't done is actually take steps to stop the killing. . . .

"What I hear is that Bush has repeatedly raised Darfur in White House meetings and asked about taking tougher steps. And each time, Condi Rice and Steve Hadley have discouraged him."

Legacy Watch

David G. Savage writes in the Chicago Tribune: "George W. Bush will end his presidency in retreat, forced to compromise on several fronts. Free-market economics have given way to massive government bailouts, and an assertive, unilateral foreign policy has yielded to one more attuned to world opinion. But in his defense of the war on terrorism, Bush has succeeded in beating back nearly all legal challenges--including those to some of his most controversial policies.

"Among them: a ramped-up domestic surveillance program to intercept international phone calls, the rounding-up of Muslim men for questioning after the attacks of Sept. 11, 2001, the holding of suspects in military custody in the United States without filing charges, a policy of harsh interrogation--some have said torture--for suspects arrested abroad and the detention of foreign captives at a special military prison at Guantanamo Bay, Cuba.

"Because of the administration's successful defense of such policies, they not only will be part of Bush's legacy, but their precedent will remain for future chief executives as well."

Peter S. Canellos writes in the Boston Globe that Bush's ultimate legacy is that "instead of acknowledging his mistakes, Bush chose to fight back against those who pointed them out, suggesting any questioners were being disloyal to American troops. By making his war a test of patriotism itself, with the blood of soldiers in the balance, he split the country in the most acrimonious way possible, sending ripples of anger into practically every home in America. He broke friendships and divided communities, amid a fog of assertions that kept the real Iraq picture unclear while serving his political purposes."

Mark Smith of the Associated Press starts his video "report card" on the Bush presidency with the infamous 'My Pet Goat' footage.

States of the Union

Jodie T. Allen writes for the Pew Research Center that "the overall mood of the public has changed a great deal since Bush was elected president in the fall of 2000. A mere 13% of Americans are now satisfied with the way things are going in the country, compared with 55% eight years ago. And while 61% applauded at Clinton's curtain call, only 24% approve of Bush's performance as he leaves the national stage." Some 44 percent thought Clinton would go down in history as an outstanding or above average president, compared to 11 percent for Bush.

The Loyalists

Susan Page writes in USA Today about "the loyalists, the handful of aides and advisers who will have worked for George W. Bush from the time he moved into the White House eight years ago until he moves out Jan. 20. After two terms together, they share the camaraderie -- and the battle scars -- that Education Secretary Margaret Spellings likens to a military unit that has survived a war. . . .

"Don't ask them for dispassionate assessments of the president. His job-approval rating may be at rock bottom -- just 18% of Americans said in an NBC-Wall Street Journal poll last month that they'd miss Bush when he's gone -- but these staffers express confidence their boss will fare better in history's judgment. . . .

"'History will show that President Bush was successful in protecting the homeland,' says Labor Secretary Elaine Chao, the only member of his original Cabinet who remains there."

Bush and the Oceans

There goes Bush issuing another unilateral order on his way out the door. And this one can't even be reversed.

But wait. This one's a bit different than the others.

Juliet Eilperin writes in The Washington Post: "President Bush will create three new marine national monuments in the Pacific Ocean today, according to his top aides, a move that will help preserve sprawling sea and island ecosystems and cement the one aspect of his legacy that has won praise, sometimes grudgingly, from many environmentalists.

"Bush's decision to safeguard far-flung areas totaling 195,280 square miles, which comes just two weeks before he leaves office, underscores his contradictory environmental record. While he has resisted imposing mandatory curbs on greenhouse gas emissions linked to climate change and has opened large areas of the nation to drilling, mining and other use of resources, by the end of his term he will have protected more ocean than any person in history.

"Invoking powers of the Antiquities Act of 1906 that are used to protect statues and cultural sites, Bush will sharply restrict oil and gas exploration and commercial fishing around numerous remote islands in the central and western Pacific that have long been U.S. possessions. Scientists identified them as biologically and geologically rich areas. The monuments, which together are equal in size to Spain, include regions teeming with sharks and other top marine predators, along with vibrant coral and hydrothermal vents. . . .

"In making the decision, Bush overruled the objections of recreational fishing interests and Vice President Cheney, who argued that the restrictions would create a dangerous precedent. Recreational fishermen will be required to apply for permits to fish in the protected areas."

The Washington Post editorial board writes: "George W. Bush becomes the conservation president, at least at sea."

Gaza Watch

Matt Spetalnick writes for Reuters: "Bush insisted on Monday that any ceasefire to end the Gaza crisis must include provisions to prevent Hamas from continuing to use the coastal strip to fire rockets into Israel.

"Bush made clear while he is concerned about deteriorating conditions for Palestinians living in Gaza that he puts the onus on Hamas, and he stopped short of calling for an immediate halt to the fighting as some European leaders have done."

Heckuva Job, Tony

AFP reports: "Outgoing President George W. Bush is to award the highest US civilian order to former prime minister Tony Blair next week.

"Blair and former Australian PM John Howard Howard will be joined by Colombian President Alvaro Uribe at a White House ceremony on January 13 to receive the Presidential Medal of Freedom, a week before Bush leaves office. . . .

"Blair and Howard were staunch allies of Bush in the US-led invasion of Iraq in 2003, while Uribe remains one of America's most constant friends in Latin America."

Tom Baldwin writes for the Times of London: "Mr Blair will not, however, be picking up a Congressional Gold Medal of Honour, which was awarded to him in July 2003. This delay of 1,972 days -- the longest for more than 20 years -- has long since been the source of puzzlement and intrigue.

"According to Sir David Manning, the former British Ambassador to Washington and a Downing Street adviser, Mr Blair felt unable to pick up the Congressional Gold Medal while still in office because the ceremony would reinforce the prejudices of those convinced that he was 'some sort of poodle' . . .

"Clare Short, the former Cabinet minister who resigned over the war in Iraq, said that she was unsurprised by the announcement. 'It is for services rendered,' she said. 'I think that it is rather good. It symbolises the whole thing. Bush is a disastrous president. Iraq was the most disastrous element of his presidency. Blair, by going along with it, made it all possible. They have been glued at the hip all the way. It is all very sad and fitting.'"

Laura's Book

Donna Cassata writes for the Associated Press: "First lady Laura Bush has sealed a deal worth millions with Scribner to publish a memoir that will encompass her recollections of personal and historical moments, including her eight years in the White House.

"The publishing house, in announcing the agreement on Monday, said the memoir is expected to be released in 2010. Sally McDonough, first lady Laura Bush's press secretary, declined to say how much Bush is being paid for the book but past deals involving first ladies have carried multimillion-dollar payouts. . . .

"Publishers seem to have a much higher regard for the first lady, a former schoolteacher known as a passionate reader, than for President George W. Bush."

Pull Up the Drawbridge, Too

Rudolph Bush writes for the Dallas Morning News that the president, who is moving to Dallas, "wants a gate to be installed along a public street to limit access to his neighborhood."

Late Night Humor

Conan O'Brien via U.S. News: "George Bush Sr. recently said he'd like his son Jeb to be president, but that right now is a bad time for him to run. . . . When asked what a good time would be, Bush Sr. said, 'Eight years ago.'"

Cartoon Watch

Tom Toles and Stuart Carlson on Obama's challenge.

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