“Having opposed the original Iraq war authorization in 2002, I am pleased with today’s announcement that U.S. troops will withdraw fully from Iraq by the end of the year,” Democratic Rep. Diana DeGette said in a prepared statement.

Sen. Mark Udall

“Our engagement in Iraq has been a testament to the unflappable courage of our men and women in uniform, but it has also proven costly — claiming far too many lives and misdirecting critical military and financial resources from where they were most needed.”

Total withdrawal came as a result of a breakdown in negotiations with the Iraqi government that would have left a training force in place in exchange for immunity from prosecution for U.S. troops.

“I remain concerned about the security situation in Iraq and believe that keeping a limited number of U.S. troops in place to continue training and assistance would have helped sustain U.S. and Iraqi progress in stemming violence,” Democratic Sen. Mark Udall said in a release. “As a member of the Senate Armed Services Committee, I will continue to monitor the situation closely.”

Udall, then a member of the House, also voted against funding the initial war effort, although he later voted to appropriate funds as the campaign continued for nearly a decade, costing 4,400 American lives and more than $1 trillion.

“I voted against the Iraq war, and I still believe that it ultimately harmed what should have been our military’s top priority – our mission in Afghanistan,” Udall said. “However, once our forces were committed in Iraq, abandoning that country would have risked the security of the entire region.”

Leaving troops in Iraq without immunity does not make sense, Udall added.

“It is ultimately unacceptable to expect our troops to provide that assistance without immunity from prosecution in Iraqi courts, which has become a sticking point between U.S. and Iraqi negotiators,” he said. “Our troops have fought and died to establish a functioning democratic government in Iraq, and now we must respect the wishes of Iraq’s leaders.”

Senator Michael Bennet issued this statement:

“Our troops have performed bravely and effectively in Iraq and accomplished everything that was asked of them, securing communities and creating the space for democratic change to begin to take root. Our gratitude for their selfless service, and the sacrifice of their families, cannot be overstated. I welcome the President’s announcement that – after nine long years, $1 trillion and 1 million service members deployed – he will keep his promise to withdraw all U.S. forces from Iraq by the end of the year.

“Today is an occasion to again honor the service of those we have lost and recommit ourselves to our obligation to provide returning troops with the health care and support they have earned after a decade of war.

“This announcement represents another significant milestone for the country and U.S. forces, including the killing of Osama bin Laden. However, serious threats against the United States remain, and we must continue to work to ensure we have the best-trained and best-equipped military in the world.”

No Republican members of the Colorado congressional delegation had issued a statement as of Friday afternoon.

In an interview with the Guardian for the eighth anniversary of 9/11, Pataki criticised current White House policies for sending wrong signals about US intentions around the world. In particular, he attacked the recent decision by the US justice department to launch an official investigation into alleged abuses by CIA agents during the interrogation of terror suspects in the aftermath of 9/11.

“Placing CIA officials who were acting in the aftermath of the worst attacks against our country and civilians in our history in possible criminal jeopardy years after the fact is in my mind a horrible decision. [...]

“It jeopardises our ability to continue to effectively protect our country against those who hate us and want to attack us again.”

A prominent Republican, his criticism of the Obama administration’s handling of the CIA interrogation affair reflects thinking widely held within his party. The attorney general Eric Holder has come under sustained fire from the right of US politics for appointing a special prosecutor to look into whether the agency went beyond legal limits in its so-called “enhanced interrogation” of al-Qaida suspects.

Pataki’s role on 9/11 gives his views added resonance. “We must make sure we obey the rule of law and act in ways that are not just legal but moral,” he said, but continued: “But now, years after the fact, to consider charges is wrong for our country, wrong for our security and wrong for the entire world that believes in the rule of law.” [Emphasis added.]

(Via ThinkProgress)

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“At the end of investigating is the time when you decide who to prosecute. You don’t decide who to prosecute before you investigate.”

That is the normal course of how investigations work. And that’s why Attorney General Eric Holder announced that he was opening a “preliminary review” into certain cases of extreme detainee abuse; notwithstanding the conventional wisdom based on plenty of cheap political analyses to the contrary, Holder didn’t say that the investigation would be limited to looking only at the actions of specific individuals.

As I’ve argued before, that investigation, if done properly, could eventually lead to investigating the actions of individuals higher up the chain of command. “When you’re talking about high-level officials,” says Abdo, “it’s important to investigate whether the attorneys were providing high level legal advice, or providing legal cover to the decisions made by high level officials.”

Interestingly, as Abdo and others point out, the CIA inspector general report released on Monday did not mention anything about high level officials. Or at least the parts of the report that were not blacked out didn’t talk about the role of the White House or other senior officials. Yet we know from previously released documents that the White House and senior officials were closely involved in the decisionmaking about interrogations.

“You would think it would be in the report because the report discusses the origin of the CIA’s enhanced interrogation technique program,” says Abdo. “And that’s relevant to whether the CIA thought it needed these techniques, or whether they were handed to them by high level officials.”

Lawyer and blogger Scott Horton made a similar point when he appeared with me on MSNBC’s Live with Carlos Watson yesterday. And he laid out the case against Cheney that may be hidden behind that black magic marker in his blog at Harper’s:

All trails lead to the Vice President’s office. At several points, redactions begin just when the discussion is headed toward the supervision or direction of the program and context suggests that some figure far up the Washington food chain is intervening. Moreover, as Jane Mayer recounts in Dark Side, Helgerson’s report was shut down when he was summoned, twice, to meet with Dick Cheney, who insisted that the report be stopped. Cheney had good reason to be concerned. This report shows that the vice president intervened directly in the process and ensured that the program was implemented. The OPR report likewise shows Cheney’s office commissioning the torture memos and carefully supervising the process. It is increasingly clear that torture was Dick Cheney’s special project and that he was personally and deeply involved in it. And the CIA report has some amazing nuggets that show Cheney’s hand. In 2003, after Jay Bybee departed OLC, Cheney struggled to have John Yoo installed as his successor, but ultimately John Ashcroft’s candidate, Jack Goldsmith, prevailed. Goldsmith quickly backtracked on the torture authorizations that Yoo and Bybee gave. The result? The CIA stopped taking its cue from OLC and instead turned to the White House for guidance. It is remarkably vague on the particulars, and blackouts emerge just as passages seem to be getting interesting. But there’s little doubt that Dick Cheney and his staff were pushing the process from behind the scenes.

What a surprise that Cheney is now the most vocal critic of Holder’s decision to appoint a prosecutor to conduct a “preliminary review.”

Abdo said the ACLU is still deciding whether to challenge the government’s redactions of the inspector general report. If it does, the judge would review what’s been blacked out and decide if it was properly classified, or if it was simply redacted to protect the government from embarrassment or conceal evidence of criminal conduct.

Greg Miller and Josh Meyer of The Los Angeles Times on Sunday confirmed earlier reports that Holder has reluctantly come around to thinking that he can’t avoid the fact that torture occurred at the hands of U.S. officials, and that U.S. and international law requires an investigation. Holder is reportedly only considering cases where CIA interrogators went beyond the rules established by the Bush administration’s lawyers, rather than investigating the legality of those rules themselves. But as I’ve written before, it’s not clear where such an inquiry would logically end. Investigating CIA functionaries low on the totem pole — which would involve re-opening cases previously dismissed by the Bush administration — would ultimately require looking into the orders they received from their superiors.

Previous proposals to create commissions to undertake broader inquiries — from Sen. Patrick Leahy (D-Vt.) and Rep. John Conyers (D-Mich.) — have so far failed to win majority support in Congress.

According to The LA Times, CIA officials are already nervous about Holder’s impending probe, with some even putting off their retirement or plans to leave the agency so they can maintain access to classified information they might need for their defense, or argue that as government officials they’re immune from suit.

“Once you’re out, it gets a lot harder,” a retired CIA official told The Times.

“Three thousand of our fellow citizens had been killed in a deliberate attack by a foreign enemy,” said Yoo, according to The Los Angeles Times, unperturbed by shouts from the audience that he is a war criminal and should be in jail. “That forced us in the government to have to consider measures to gain information using presidential constitutional provisions to protect the country from further attack.”

“Was it worth it?” he asked. “We haven’t had an attack in more than seven years.”

Yoo’s confident defense of his controversial legal positions comes as the threat of prosecution for Yoo and his OLC colleagues intensifies. Yesterday, President Obama said that he would not interfere with an attempt to prosecute the lawyers who authorized interrogators’ abusive conduct, and he would be open to a full congressional investigation as well.

Rep. John Conyers (D-Mich), who since proposing legislation in January has been calling for a broad-ranging investigation of Bush policies that would not rule out subsequent prosecutions — unlike Sen. Patrick Leahy’s (D-Vt.) proposed “Commission of Inquiry” — reiterated his call for a thorough investigation. Conyers added that the House Judiciary Committee, which he chairs, would hold hearings of its own on the potentially illegal conduct of the Justice Department officials, such as Yoo.

A report on the investigation of the lawyers’ conduct from the Justice Department’s Office of Professional Responsibility is expected to be released soon, though the Justice Department is still reviewing it. The OPR evaluation is reportedly very critical of the lawyers’ legal reasoning, and tracks the lawyers’ communications with the White House to determine what influenced their conclusions.

Conyers said yesterday that if the OPR report is delayed any further, “we will have hearings in the near term in any event. Critical questions remain concerning how these memos came into existence and were approved, which our committee is uniquely situated to consider.”

As I’ve noted before, the Senate Judiciary Committee, chaired by Leahy, is also well-suited to conduct such an inquiry into the Justice Department’s role in approving torture and other abuses derived from torture techniques used by North Korea, China and other foreign governments on captured soldiers, as detailed by the Senate Armed Services Committee report released Tuesday. So far, however, it has declined to do so.

No matter who investigates, John Yoo is unlikely to change his mind about the legality of using torture to extract information from terror suspects, as his confident demeanor at yesterday’s forum demonstrated. The fact that the tactics used on suspected terrorists were known to have produced false confessions in the past rather than truthful information, however, undermines the strength of the legal argument supporting them.

Yoo’s former OLC colleague, Jay Bybee, however, now a life-tenured judge on the U.S. Court of Appeals for the Ninth Circuit and the target of a campaign for impeachment, has so far remained silent about the matter.

A copy of the 98-page Spanish complaint that was referred to him, translated by Google (via The Raw Story,) is available here.

This is the second report of a U.S. ally’s judicial system bravely going where the U.S. Justice Department has refused to go.

As I reported last week, a U.K. attorney general, confronted with reports that British intelligence agents colluded with U.S. authorities in the torture of Ethiopian-born former Gitmo detainee Binyam Mohamed, announced she would refer the matter to British police to investigate. Allegations regarding British intelligence collusion in the torture of another British resident held at Gitmo are expected to reach the British High Court this week.

In the United States, meanwhile, prosecutors and former Bush officials have consistently maintained that the same memos that Spain is now investigating as possible violations of international law actually shield former U.S. officials from prosecution here.

President Obama and Attorney General Eric Holder have yet to come out clearly one way or another on the matter. And while some Democratic lawmakers have supported a “truth commission,” such as one sponsored by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt), Republicans such as Sen. Arlen Specter (R-Pa.), while slamming that idea in Congress, inadvertently made the strongest case yet for prosecuting former Bush administration lawyers and policymakers. Although the Judiciary Committee has not convened its own investigation of the Justice Department’s possible lawbreaking during the last administration, a review prepared by Department of Justice’s Office of Professional Responsibility that will reportedly criticize former Office of Legal Counsel lawyers John Yoo and Jay Bybee is expected to be released soon.

Even as Obama and Holder say they want to look forward rather than backward when it comes to the treatment of detainees and anti-terror policy, the growing number of foreign prosecutions and domestic reports producing evidence of criminal conduct may eventually force their hand.

Ever since Binyam Mohamed — the Ethiopian-born Guantanamo detainee who claims he was tortured as part of the CIA’s “extraordinary rendition” program (and whom I’ve written about previously here) — was returned to Britain, his case has caused an uproar there because he claims that the British intelligence agents colluded with the United States government in his torture.

Today, Baroness Patricia Scotland QC  — said she would refer the evidence, both classified and not, to the police, to begin an investigation.

“I have expressed to the Commissioner the hope that the investigation can be taken forward as expeditiously as possible given the seriousness and sensitivity of the issues involved,” she said in a statement released today.

Meanwhile, here in the United States, despite repeated calls for the attorney general to launch an investigation into the CIA’s extraordinary rendition practices and the torture of detainees at Abu Ghraib, Bagram and Guantanamo Bay, Attorney General Eric Holder has equivocated (as has President Obama) and no such criminal investigation has begun. (The Senate Select Committee on Intelligence, on the other hand, is investigating the CIA’s practices, as I’ve reported, but not for criminal culpability. And a previous Senate Armed Services Committee investigation, despite damning results that orders for abusive and inhumane conduct came from the highest levels of the Bush administration, has likewise not led to a criminal investigation.)

When Mohamed and other torture victims brought their case to court by suing Jeppesen Dataplan, the private Boeing subsidiary that assisted the CIA perform renditions, the U.S. government moved to have their case dismissed.

As Glenn Greenwald at Salon has noted, nobody in the United Kingdom is making the Obama administration’s argument — that we ought to all look forward rather than backward. And it’s not like the United Kingdom doesn’t have an economic crisis of its own to deal with, too.

So why is the British prosecutor willing to look “backward” to find out whether crimes were committed, while we seem committed only to burying our heads deeper in the sand?

The hearing was full of all the predictable, lofty statements from illustrious supporters about why a commission would further the American people’s understanding of our nation’s past and true values, and also demonstrate to the world our commitment to truth and justice — most of which I agree with. But what was most surprising was that the Senate Republicans and their witnesses, in the process of ripping apart the idea, made the strongest case I’ve heard yet for why the Department of Justice should prosecute former senior officials of the Bush administration.

Sen. Arlen Specter, the ranking committee Republican, after noting his previous support for judicial review of the Bush administration’s terrorist surveillance program, referred to the recent disclosures of Office of Legal Counsel memos as potentially supporting the case for prosecutions.

“You’ve had some rather startling disclosures, with the publicity in recent days about unusual—to put it mildly—legal opinions” to justify broad executive actions, including homicide. “They’re all being exposed now,” he said, and noted that a forthcoming report from the Office of Professional Responsibility in the Justice Department will likely expose even more.  They’re “starting to tread on what may disclose criminal conduct,” he said.

Rather than going off  “helter-skelter” and conducting a “fishing expedition,” said Specter, “it seems to me that we ought to follow a regular order here … If there’s reason to believe that these justice department officials have given approval for things that they know not to be lawful and sound, go after them.”

The witnesses called to present the Republican opposition to Leahy’s proposal made the same point.

David Rivkin, a former Justice Department official in the Reagan and first Bush administrations and now a partner at the law firm Baker & Hostetler, said a truth commission “is a profoundly bad idea, a dangerous idea, both for policy and for me as a lawyer for legal and constitutional reasons.”

Objecting that Congress would be improperly delegating its oversight power, and that witnesses would be called out for criminal conduct without the right to defend themselves in a trial, he said: “this is to establish a body to engage in what in essence is a criminal investigation of former Bush administration officials,” and that “the subject matter areas, which such a commission would investigate – among them the interrogation and handling of captured enemy combatants and the gathering of electronic intelligence – are heavily regulated by comprehensive criminal statutes, and ensures that the commission’s activities would inevitably invade areas traditionally the responsibility of the Department of Justice.”

Jeremy Rabkin, a law professor at George Mason University who also opposes Leahy’s idea, similarly insisted that in the United States, where we have a fully developed legal system, prosecutions — not truth commissions — are the appropriate course.  A truth commission is something that countries like South Africa and Chile have had, not something we should do here, he said. “In those countries they had to have commissions because they couldn’t have prosecutions. Peace was really in doubt in those countries … they had to trade off prosecutions for peace. We’re not in that situation. If people think we need to have prosecutions, we should have prosecutions.”

Proponents of the truth commission idea, meanwhile, while not ruling out the idea of prosecutions, saw a truth commission as serving a different, and broader, purpose. But it was surprising that, at a hearing cautiously called to discuss “a nonpartisan commission of inquiry,” we heard the strongest case yet  for the prosecution of former Bush administration officials — being made by Republicans.

“You’ve had some rather startling disclosures, with the publicity in recent days about “unusual” — to put it mildly — legal opinions to justify executive action,” including homicide, Specter said. “They’re all being exposed now.” 

Specter also said the Office of Professional Responsibility at the Justice Department is also looking into “whether officials knowingly signed off on conduct they knew was illegal,” which in itself is illegal conduct.

What we do in our society is we undertake those investigations where we have what we lawyers call a predicate. We don’t go off helter-skelter … on a fishing expedition as to what we’re going to do … so it seems to me that we ought to follow a regular order here … you have a Department of Justice that is fully capable of conducting an investigation.

Sounds to me like he’s advocating prosecution.

Civil liberties advocates have been trying to get much of this information for years and are pleased that the intelligence committee is planning to investigate. But they are also concerned that the final report of the committee might not be made public, which in their view would defeat an important part of its purpose. Their fears are founded.

When the Senate Armed Services Committee released a summary of its report on the development of the military’s interrogation techniques in December, which concluded that waterboarding and other abuses were authorized by top defense officials including Defense Secretary Donald Rumsfeld, it was unable to publish the committee’s complete findings because the final report was deemed classified.

Congressional sources said the intelligence committee is unlikely to conduct any open hearings on the CIA’s practices. But it remains unclear whether the complete findings and final report of the committee will be made public.

“This could become an extraordinarily important investigation because, up to this point, the CIA has faced very little scrutiny for its role in torture,” said Caroline Fredrickson, Director of the ACLU’s Washington office, in a statement released this morning. But she emphasized that “for the investigation’s effectiveness to reach its full potential, the proceedings need to be open to the public. Transparency is necessary for our nation to pull itself out of the darkness in which these failed policies were created.”

The Senate intelligence committee is likely to be under extraordinary pressure not to make the CIA’s tactics public. Public revelations, supported by testimony and documentation, that top CIA officials authorized and encouraged the torture and abuse of detainees and maintained “black sites” to evade the law could lead to growing pressure to prosecute Bush officials. Although the Senate Intelligence Committee is reportedly not investigating for the purpose of future criminal prosecutions, if their detailed findings become public, it could be increasingly difficult to avoid them. Nevertheless, TWI’s Spencer Ackerman passes along this statement from CIA spokesman Mark Mansfield pledging the agency’s cooperation with an inquiry:

As [CIA Director Leaon] Panetta said on Wednesday in his meeting with reporters, “as far as Congress reviewing these issues and trying to gain lessons learned, we’ll obviously cooperate.”

As I’ve explained before in writing about Sen.Patrick Leahy’s proposed ‘”truth commission,” the United States is obligated under the United Nations Convention Against Torture to refer instances of torture for criminal prosecution.

Unlike John Yoo’s notoriously narrow definition, Article 1.1 of the Convention defines torture as:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

If an intelligence committee investigation were to reveal evidence of torture, and if the United States declined to prosecute, another country could still potentially prosecute those responsible under the theory of universal jurisdiction, which is specifically provided for in the torture convention.