The case also underscores the confusion among military interrogators and their superiors over the use of aggressive interrogation techniques in the summer and fall of 2003, when the insurgency in Iraq was rapidly gaining momentum and ferocity, and top Pentagon officials and commanders in Iraq were demanding better intelligence with which to attack the militants.
Testimony at Mr. Welshofer's court-martial last week confirmed that a team of Iraqis had beaten the general two days before he died, but the C.I.A.'s involvement remained largely unaddressed.
At one point, a defense lawyer, Frank Spinner, questioned a witness whose identity was so secret that he was shielded from reporters and others in the courtroom by a green tarp suspended from the ceiling, The Associated Press reported. The witness said that when he spoke to Mr. Welshofer on the day before General Mowhoush died, he was alarmed when Mr. Welshofer told him he thought the Army's interrogation guidelines were being broken every day.
"And you didn't report it to the C.I.A.?" Mr. Spinner asked. He then stopped himself and quickly apologized to the judge.
The above is from Eric Schmitt's "Army Interrogator Is Convicted of Negligent Homicide" in this morning's New York Times and was noted by Charlie. For more on this same story, Bonita notes Jon Sarche and Dan Elliott 's "CIA Role a Mystery at Army Court-Martial" (Associated Press via Common Dreams):
The initials were spoken aloud only once all week, and then apparently by mistake. After this past week's testimony, any role the CIA had -- or didn't have -- in the interrogation of an Iraqi general who died in U.S. custody remains a tantalizing and mysterious backdrop to the court-martial of Army Chief Warrant Officer Lewis Welshofer Jr. The CIA is "the ghost at the banquet," said Eugene R. Fidell, an expert in military law who has been following the court-martial but doesn't know if the CIA was involved in the case. "We're playing 'Hamlet' without Hamlet here," said Fidell, an attorney in private practice who teaches military law at American University in Washington. He also represented news organizations in their attempts to open pretrial hearings in Welshofer's prosecution. Welshofer was convicted late Saturday of negligent homicide in the 2003 death of Republican Guard Maj. Gen. Abed Hamed Mowhoush at a detention camp in western Iraq. He could be dishonorably discharged and sentenced to up to three years and three months in jail at a hearing Monday. If convicted of the original murder charge, he could have been sentenced to life in prison. Prosecutors said Mowhoush was stuffed headfirst in a sleeping bag and bound with electrical cord, then suffocated with Welshofer sitting atop his chest.
Back at the Times, Adam Nagourney details the intent to spin the Bully Boy's NSA spying. Curiously, he uses the term "framing" which may be all the rage among some; however, reporters generally refer to that as "angle." (As in, "What's the angle?") What do you really learn? John Kerry's "considering" a run for president in 2008 on the Democratic ticket, Mitt Romney's toying with the same notion on the Republican ticket. The "angle" on Romney, if he does run, may very well be "indecisive" and a pain in the ass to quote because he gives Nagourney one quote (supportive of Bully Boy) and then calls "back a few moments later" to note that if Bully Boy's done anything illegal, of course, Romney wouldn't support that.
While Nagourney deals with strategies, angles and frames (oh my), Lloyd notes Matthew Rothschild's "Bush’s NSA Hubris" (This Just In, The Progressive):
The Bush team keeps granting itself more and more power, including the power unilaterally to deem a law unconstitutional and then to flout that law.
That's essentially what the Justice Department said in the 41-page white paper on the NSA's warrantless spying program which it released on January 19.
With the Bush Administration's typical white-is-black Orwellian speak, it says that this program is "consistent with civil liberties," even though it acknowledges that "individual privacy issues at stake may be substantial."
For Bush and Cheney and Gonzales, anything goes--including privacy--in the fight against Al Qaeda.
"The Government's overwhelming interest in detecting and thwarting further Al Qaeda attacks is easily sufficient to make reasonable the intrusion into privacy," says the Justice Department document, entitled "Legal Authorities Supporting the Activities of the National Security Agency Described by the President."
The gist of the Justice Department's argument is that the President's "inherent constitutional authority as Commander in Chief" and the Congressional Authorization of Military Force (AUMF) right after 9/11 give him all the power he needs to eavesdrop in the United States without a warrant.
It's not an easy argument to make, since the FISA law, as amended, requires that FISA is the "exclusive means" by which the NSA may engage in domestic surveillance. FISA requires a warrant except in the first fifteen days of an emergency.
In case you're as confused as a Bully Boy (no, not any members, but visitors do drop by), note Sally's highlight -- Elizabeth de la Vega's "Does the President Really Know Best?" (Tomdispatch.com via The Nation):
OK, everyone who has studied the unitary executive theory of the presidency, raise your hand. Anyone? Anyone?
If you are not raising your hand, you're not alone. Only recently has the world received notice that President Bush's "I can do anything I want" approach to governance has a name: the unitary executive theory of the presidency. Not having heard of this concept, and thinking perhaps that I had missed something in Constitutional Law, I decided to survey a random sampling of attorneys about it. The group included civil practitioners, prosecutors, a federal judge, a former federal prosecutor who has a PhD as well as a JD, defense attorneys and a US magistrate. The precise question was: "When did you first hear about the unitary executive theory of the presidency?" Most said, "The past few weeks." But my favorite was, "A few seconds ago, when you asked about it." All agreed that the term does not appear in the US Constitution and that, the last time they checked, we still had three branches of government.
Discussion of this "theory" has been prompted, of course, by President Bush's recent confession to a crime: repeatedly authorizing the National Security Agency (NSA) to intercept domestic electronic communications for foreign intelligence purposes without a court order, in violation of the Foreign Intelligence Surveillance Act. FISA contains no exception for the President, but Bush claims his action is legal because: (1) Congress endorsed it in its September 18, 2001, authorization to use military force in response to Al Qaeda's September 11 attacks, and (2) he has inherent power as Chief Executive to act as he deems necessary in wartime. Many scholars, including Georgetown University's David Cole and former New York State Congressional Representative Elizabeth Holtzman, have thoroughly debunked these arguments.
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