(updated below) 

A federal district judge, Richard Leon, today ordered the Bush administration "forthwith" to release five Algerian detainees who have been held in Guantanamo without charges since January, 2002 -- almost seven full years.   The decision was based on the court's finding that there was no credible evidence that the 5 detainees intended to take up arms against the U.S.  The court found sufficient evidence to justify the ongoing detention of a sixth Algerian detainee.

When they were detained in 2001 in Bosnia, the Bush administration claimed that they were plotting to bomb the U.S. embassy in Sarajevo.  But once they were shipped to Guantanamo, the U.S. backed off that accusation and instead claimed they intended to travel to Afghanistan to fight against the U.S.

I don't want to say too much about the legal reasoning behind the decision because it was just issued via an oral ruling from the bench, and I haven't yet been able to obtain a copy of the judge's decision.  For now, then, the following can be noted about this landmark ruling -- the first time a court has ruled that the Government's evidence is insufficient to justify ongoing imprisonment of a detainee as an "enemy combatant":

(1)  These 5 detainees were able to be heard in federal court only because the U.S. Supreme Court in the Boumediene case last June -- in a ruling John McCain called "one of the worst decisions in the history of this country" -- struck down as unconstitutional Section 7 of the Military Commissions Act, which had purported to abolish habeas corpus for Guantanamo detainees and prohibit them from challenging their detention in a federal court.  The release order today resulted from the habeas corpus right which the Military Commissions Act purported to abolish but which the Boumediene Court restored.  Appropriately enough, one of the 5 detainees who won his freedom today was the named plaintiff in that case, Lakhdar Boumediene.

(2) The five men ordered released today have been imprisoned in a cage by the Bush administration for 7 straight years without being charged with any crimes and without there being any credible evidence that they did anything wrong.  If the members of Congress who voted for the Military Commissions Act had their way (see them here and here), or if the four Supreme Court Justices in the Boumediene minority had theirs, the Bush administration would nonetheless have been empowered to keep them encaged indefinitely, for the rest of their lives if desired, without ever having to charge them with any crime or allow them to step foot into a courtroom to petition for habeas corpus.  

In addition to every Republican Senator (except Chafee), those voting to authorize that repellent power include Jay Rockefeller, Ken Salazar, Tom Carper, Ben and Bill Nelson, Debbie Stabenow, and Joe Lieberman.

(3) Judge Leon is a Bush-43 appointed Judge known as a right-wing ideologue and known for ruling in favor of the Government and for expansive executive power.  He was Deputy Chief counsel for the Republicans on the Iran-Contra Committee in 1987, was Special Counsel to the Senate Banking Committee for the Whitewater investigation, and worked for both the Reagan and Bush 41 Justice Departments.  That Judge Leon -- of all judges -- ruled that there was no credible evidence to suggest that these detainees are "enemy combatants" is as compelling a sign as one can imagine that there is no such evidence.

Simply juxtapose that finding with the fact that these men have been imprisoned for seven straight years with no meaningful due process, and one can vividly see the grotesque injustices we have wrought with Guantanamo and our denial of basic due process to detainees.  That is a stain -- one of many -- that will never be fully expunged.

UPDATE:  Here is a gut-wrenching account of what these detainees have endured (h/t Ondelette).  The Bosnian Prosecutor who investigated their initial detention back in 2001 (which was effectuated at the behest of the U.S.) concluded they ought to be released, but the Bosnian Government succumbed to the pressure of the Bush administration and turned them over to the U.S. as they were being released ("hooded, shackled, and packed into waiting cars while their horrified families watched"), after which they were shipped to Guantanamo.

One of the detainees ordered released today had a wife who was pregnant at the time he was shipped to Guantanamo, who then gave birth to a daughter, now 6, whom he has never met.  Another of the Bosnian-Algerians had an infant daughter at the time he was put in Guantanamo who died last year of congenital heart disease at the age of 6.  Another of them "suffered months of facial paralysis from a brutal beating inflicted by Guantanamo camp soldiers."  And then there's this, about one of the other detainees, Saber Lahmer:

When we last saw Saber in November, he was in his sixth month of solitary confinement. Since August, he has seen us, his legal team, twice and a psychiatrist on three brief occasions. For a few minutes each day, he sees the camp guards who bring his meals. He has had no other human contact. The glaring lights in his cell are on 24 hours a day, seven days a week. When we left the cell, we could hear Saber shouting -- brief, truncated cries. We could not understand what he was saying.

According to Human Rights Watch, that detainee -- "a university-educated father of two who once taught at the Islamic Cultural Center in Bosnia" -- "continues to be housed 22 hours a day in a single cell, with nothing to occupy his time other than his Koran" and "now reports that he is going blind in his left eye, a result that he attributes to being housed in cells with fluorescent lights on 24 hours a day."

We haven't just imprisoned people with no evidence in cages for years.  We've kept them encaged under often brutal and extreme conditions, many in unbroken solitary confinement for years.  Today, a federal court ruled that for 5 of these men, there is no credible evidence that they did anything wrong, and if most of our political class -- which supported the Military Commissions Act-- had its way, they wouldn't have even had this hearing at all.

(updated below w/transcript)

Scott Horton wrote the cover story for the current edition of Harper's (sub. req'd) -- entitled "Justice after Bush:  Prosecuting an Outlaw Administration" -- in which he argues that it is imperative to investigate, expose, and prosecute the Bush administration's war crimes, particularly its torture of detainees.  Scott sets forth a detailed proposal for how this should be pursued, beginning with the creation of a Truth Commission to expose what was done and to generate public support for further proceedings, followed by prosecution.

I spoke to Scott today on Salon Radio regarding this article, and we discussed:

• what distinguishes the Bush administration's lawlessness from the isolated lawbreaking of past Presidents ("This administration did more than commit crimes.  It waged war against the law itself");
•  
• why -- of all the Bush crimes -- torture is, in Scott's words, "not only the crime that most clearly calls for prosecution but also the crime that is most likely to be successfully prosecuted";
•  
• whether the limited retroactive immunity bestowed on war criminals by the Detainees Treatment Act and Military Commissions Act is a barrier to such prosecutions;
•  
• whether it should be a defense for high level government officials that the Bush DOJ issued legal opinions authorizing these interrogation programs and asserting that they were legal;
•  
• how the issuance of presidential pardons could be overcome;
•  
• what the benefits are of beginning with a Truth Commission, rather than having the DOJ simply investigate and prosecute.

I also asked Scott his views of likely Obama Attorney General Eric Holder, and they were roughly similar to the ones I expressed earlier today.

The discussion is approximately 25 minutes in length and can be heard by clicking PLAY on the recorder below.  A transcript will be posted shortly (on a different note, details concerning the superb open-to-the-public panel discussion of the issues raised by Scott's article, which Scott described at the end of the interview and which will take place on the evening of December 4, at the NYU School of Law, are here).

UPDATE:  The transcript is here.

(updated below - Update II)

Even before there has been a single Cabinet selection announced, I'm already weary from all the gossip and chatter about potential appointees, but, at least for me, the position of Attorney General is different.  So much of the anti-constitutional abuses and radicalism of the last eight years emanated from the Justice Department, and few things will have more of an impact on what the Obama administration does about them than the views, integrity and independence of the new Attorney General, who looks to be Eric Holder, Deputy Attorney General in the Clinton administration and, very briefly, Acting Attorney General.

The bulk of what I've read about and from Holder suggests, with a couple of ultimately marginal exceptions, that this appointment would be a very positive step.  Digby yesterday quoted at length from an impassioned speech Holder gave in June of this year in which he condemned Guantanamo as an "international embarrassment"; charged that "for the last 6 years the position of leader of the Free World has been largely vacant"; complained that "we authorized torture and we let fear take precedence over the rule of law"; and called for an absolute end both to rendition and warrantless eavesdropping.  He proclaimed that "the next president must move immediately to reclaim America's standing in the world as a nation that cherishes and protects individual freedom and basic human rights."

What's notable about this speech, in my view, is that the points he's making go well beyond standard Democratic Party boilerplate on these issues.  More revealingly, the rhetoric he used is rather unconstrained for Washington, suggestive of actual passion and conviction on these matters.  As Hilzoy put it, the speech is notable "not just for the position he takes, but for his forthrightness and lack of equivocation."

* * * * *

Mitigating the importance of that speech is that it was delivered when Holder was already part of Obama's campaign and Obama had already secured the nomination.  I tend to view as more important what Holder said and did before he had any connection to a campaign and was speaking only as a private citizen, not beholden to any campaign talking points. 

After the last eight years, perhaps the most important aspect in assessing a nominee for Attorney General -- more important than any specific views on particular issues -- is the conception he has of the role of the Attorney General, and particularly the need for independence from the President. Here is what Holder told National Journal, on March 3, 2006, regarding the confirmation of Alberto Gonzales as Attorney General:

The attorney general is the one Cabinet member who's different from all the rest.  The attorney general serves first the people, but also serves the president. There has to be a closeness at the same time there needs to be distance.

It's Holder's independence -- his "distance" -- which very well might be his most attractive attribute.  Holder isn't some long-time friend and associate of Barack Obama's from Chicago.  They only met for the first time four years ago.  Unlike Alberto Gonzales and George Bush, their careers haven't been intertwined and Holder hasn't been dependent upon Obama for his political identity.  He's already been Deputy Attorney General and Acting Attorney General long before he even met Obama. 

One could reasonably argue (as Jeralyn Merritt has) that even Holder's involvement in Obama's campaign makes him already too close to Obama to maintain the necessary independence, but I don't think that's true.  Holder's stature and record of high accomplishment exists completely independent of Obama, and his ascent to national prominence long precedes any involvement with Obama.  That's vital.

Equally encouraging are Holder's general views on the core principles of executive power and the Justice Department. In April, 2004, Holder went on CNN to speak about Bush's DOJ -- before many of the worst abuses, such as the NSA spying program and Patriot Act abuses were even known, and at a time when very few people were strongly criticizing Bush's executive power abuses -- and affirmed some rather vital principles for the DOJ that many key Beltway Democrats were avoiding like the plague:

HOLDER:  When you look at some of the things that have done under the spirit of the [Patriot] Act, where you detain citizens without giving them access to a lawyer, where you listen in on attorney-client conversations without involving a judge, these are the kinds of things that have been done in the name of the Patriot Act by this administration that I think are bad ultimately for law enforcement and will cost us the support of the American people which is a vital tool to be successful in this war on terrorism . . .

I think in a lot of ways, the problem that I had with the enforcement of the act is that this administration said essentially trust us. We're not going to involve judges, we're not going to report to Congress on what we're doing, and I think our history has shown us that we are best when we operate as people governed by the law as opposed to putting our trust in people and that's the problem I have.

You have to deal with this whole question of secrecy and the way in which the administration has conducted itself. You need to involve judges. If you're going to look at business records or library records, this should not be something that's simply done by the executive branch without the involvement of judges.

If you're going to listen in on attorney/client conversations, as we did in the Clinton administration, the difference was we asked a judge to authorize it as opposed to simply saying we in the executive branch by ourselves can do this without any supervision by a judge. You also need to report to Congress on a regular basis to let them know what you're doing under the act.

I've been really surprised to see this attorney general [John Ashcroft], a former senator, who has been extremely reluctant apparently to get up on Capitol Hill and talk about it. Even if it's in the intelligence setting where the public doesn't necessarily hear, been reluctant to share information about the way in which he has enforced the Patriot Act. 

Particularly for 2004, that was way out in front of what most establishment Democrats were willing to say.  That was as clear and unequivocal a rejection of unilateral assertions of executive power and surveillance authority as one could find among Washington establishment figures (it still is), and was a very compelling affirmation of some of the core principles that are in urgent need of restoration.

* * * * * 

Having said all of that, Holder took some rather disturbing positions very early on after 9/11.  In that regard, the most disturbing part of Holder's background are his comments in the immediate aftermath of 9/11 concerning the legal status of "War on Terror" detainees.  In January, 2002, Holder appeared on CNN with Paula Zahn to discuss the divergence of opinion among, on the one hand, Donald Rumsfeld, who insisted that Guantanamo detainees were not entitled to "prisoner of war" status under the Geneva Conventions, and on the other, Colin Powell, who was arguing that they were.  At least back then, Holder seemed to side with Rumsfeld:

HOLDER:  One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located; under the Geneva Convention that you are really limited in the amount of information that you can elicit from people.

It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war. If, for instance, Mohammed Atta had survived the attack on the World Trade Center, would we now be calling him a prisoner of war? I think not. Should Zacarias Moussaoui be called a prisoner of war? Again, I think not. 

Holder went on to say that Powell's concerns that detainees be treated in a humane fashion were legitimate because doing so would be important in how our own captured troops were treated, but nonetheless reiterated that "War on Terror" detainees are not entitled to Geneva protections:  

I think the way to resolve it is, in fact, the way Secretary Powell has proposed, which is to say these are not people who are prisoners of war as that has been defined, but who are entitled to, in our own interests, entitled to be treated in a very humane way and almost consistent with all of the dictates of the Geneva Convention.

In 2006, the position espoused by Holder, Rumsfeld and the Bush administration was rejected by the Supreme Court in Hamdan, when it ruled that even Al Qaeda detainees are entitled to the minimum protections afforded to all detainees by Common Article 3 of the Geneva Convention.  Ironically, the account of Holder's ACS speech that Digby cited (I haven't been able to find the full text of Holder's speech) claims that Holder said "it was disgraceful that the Supreme Court 'had to order the president to treat detainees in accord with the Geneva Convention'" -- a criticism that would also seem to apply to Holder's early view that detainees were not entitled to Genvea protections.  

Several days before that January, 2002, appearance, Holder -- also on CNN -- seemed somewhat receptive to the idea of indefinite detentions of non-U.S.-citizens, though there was no discussion of whether they would be entitled to procedures to contest their guilt:

BLITZER: As opposed to John Walker, these are not U.S. citizens. There may be a few British citizens there, but what happens to these guys? Are they just going to stay at Guantanamo Bay forever?

HOLDER: Interesting question. It seems to me you can think of these people as combatants and we are in the middle of a war, and it seems to me that you could probably say, looking at precedent, that you are going to detain these people until war is over, if that is ultimately what we wanted to do.

I think you have a basis for saying that. We had the Vietnam War, we had World War II, people were captured during the course of that war were not repatriated until the conclusion of the conflict. So, it's possible they could be there for an extended period of time.  

I personally discount -- not entirely but somewhat -- what people said and did in the immediate aftermath of the trauma of 9/11, and I consider January, 2002 to be part of that period.  Many people who have ended up as important advocates for the Constitution and the rule of law made some early statements and formed some positions, undoubtedly attributable to the emotional impact of 9/11, that they came to regret.

Holder's remarks came before there were any reports of the extremism and abuse that the Bush administration was planning.  As that became more apparent, and as the emotional impact of 9/11 receded, Holder clearly changed his views on these topics and reversed himself rather thoroughly.  It's true that these early positions evinced some poor judgment and instincts, and everyone can decide for themselves how much weight to give that in light of his subsequent strong and eloquent advocacy on behalf of Constitutional protections and the rule of law.

* * * * *

Several other issues are worth noting.  Holder's involvement in the sleazy Marc Rich pardon is definitely a blemish, though, given his peripheral role, it's a relatively minor one.  Beyond that, Jeralyn Merritt yesterday detailed some absurdly harsh views Holder has previously expressed regarding punishment for marijuana distribution and mandatory minimum sentences, but unfortunately, inane support for the "War on Drugs" is -- for now -- about as absolute an orthodoxy as it gets in the Washington establishment.  As but one example, there are few people in America with a worse record supporting Draconian drug laws than Joe Biden.  Independently, in an interview with George Stephanopoulos on ABC News in March of 2002 to discuss the case of Zacarias Moussaoui, Stephanopoulos said that, in general, Holder was "personally opposed to the death penalty."

I've seen some attempts to criticize Holder based upon clients he has represented while in private practice, most notably his defense of Chiquita Brands in a criminal case brought by the DOJ arising out of Chiquita's payments and other support to Colombian death squads.  Attempts to criticize a lawyer for representing unsavory or even evil clients are inherently illegitimate and wrong -- period.   Anybody who believes in core liberties should want even the most culpable parties to have zealous representation before the Government can impose punishments or other sanctions.  Lawyers who defend even the worst parties are performing a vital service for our justice system.  Holder is no more tainted by his defense of Chiquita than lawyers who defend accused terrorists at Guantanamo are tainted by that.

All of this is preliminary.  It's possible -- even likely -- that more facts will emerge that further shape the assessment of the choice of Holder, one way or the other.  He should be asked about his views of holding Bush officials accountable for lawbreaking.  He was undoubtedly involved with polices at the Clinton DOJ that many civil libertarians will oppose.  Some of those early post-9/11 comments are definitely disturbing.  And one can never really know what someone will do with power until they wield it.  But on balance -- particularly in light of what he was saying regarding the most extreme Constitutional and executive power abuses of the last eight years and, more importantly, how he was saying it -- this choice, as a preliminary matter, seems like a step in the right direction.

UPDATE:  Commenters have raised two additional areas of possible concern regarding Holder:

(1) The role he played, if any, in the seizure of Elian Gonzalez, which liberal Law Professor Laurence Tribe -- despite believing that Elian belonged with his father back in Cuba -- condemned as having been effectuated with no legal basis whatsoever, and thus "violated a basic principle of our society, a principle whose preservation lies at the core of ordered liberty under the rule of law."  I don't know what Holder's involvement in that was, and I haven't really focused before on the legal issues raised by Tribe, but that clearly compels some examination as part of the confirmation process; and,

(2) Holder's advocacy, in the wake of the 1999 Columbine shooting, of what he called "reasonable regulations in how people interact on the Internet."  The reports about what Holder was advocating are vague, and that was almost 10 years ago, but this is also certainly something that ought to be explored with Holder.

UPDATE II:  Contrary to what several commenters have suggested, it seems clear that Holder -- in the 2002 interview -- was not merely arguing that Guantanamo detainees should be denied "prisoner of war" status.  He was arguing, explicitly, that they were entitled to no Geneva protections of any kind (as he put it:  "they are not, in fact, people entitled to the protection of the Geneva Convention").  See here and here for further elaboration.

(updated below - Update II)

As Senate Democrats this morning prepare to reward Joe Lieberman with the powerful Chairmanship of the Homeland Security Committee, the most commonly recited claim -- both with regard to the Lieberman issue and Washington more generally -- is that Barack Obama's campaign to "change" Washington requires, first and foremost, an end to partisan bickering and a renewal of bipartisanship.  As but one of countless examples, Steny Hoyer told The Hill yesterday "that bipartisanship will be a priority" and the 33 new Democratic members of Congress "were elected on promises of bipartisanship."  In The Atlantic, Ronald Brownstein complains about "escalating partisan conflict" and "hyper-partisanship" and claims that "American politics has been polarized as sharply as at any point in the past century."

Whatever else one might want to say about "bipartisanship," there is nothing new about it.  By definition, it does not remotely constitute "change."  To the contrary, the last eight years have been defined, more than anything else, by overarching bipartisan cooperation and consensus. 

Where is the evidence of the supposed partisan wrangling that we hear so much about?  Just examine the question dispassionately.  Look at every major Bush initiative, every controversial signature Bush policy over the last eight years, and one finds virtually nothing but massive bipartisan support for them -- the Patriot Act (original enactment and its renewal); the invasion of Afghanistan; the attack on, and ongoing occupation of, Iraq; the Military Commissions Act (authorizing enhanced interrogation techniques, abolishing habeas corpus, and immunizing war criminals); expansions of warrantless eavesdropping and telecom immunity; declaring part of Iran's government to be "terrorists"; our one-sided policy toward Israel; the $700 billion bailout; The No Child Left Behind Act, "bankruptcy reform," and on and on. 

Most of those were all enacted with virtually unanimous GOP support and substantial, sometimes overwhelming, Democratic support:  the very definition of "bipartisanship."  That's just a fact.

Moreover, Bush's appointments of judges were barely ever impeded, resulting in a radical transformation of the federal courts.  Other than John Bolton and Steven Bradbury, not a single significant Bush nominee was blocked.  Those who implemented Bush's NSA program (Michael Hayden) and authorized his torture program (Alberto Gonzales) were confirmed for promotions.  The Bush administration committed war crimes, broke long-standing surveillance laws, politicized prosecutions, and explicitly claimed the right to break our laws, yet Congress did nothing about any of that except to authorize most of it, and investigated virtually none of it.  With regard to many of those transgressions, key Democratic leaders were briefed at the time they were implemented and quietly acquiesced, did nothing to stop any of it.  Both parties are in virtually unanimous agreement that our highest political leaders should be exempt from accountability under the rule of law even for the grave crimes that have been committed.

As The Washington Post's Dan Froomkin observed at the end of last year:  "Historians looking back on the Bush presidency may well wonder if Congress actually existed."  How much more harmonious -- "bipartisan" -- can the two parties get?

Over the last eight years, one can locate a couple of exceptions to this lockstep cooperation in the domestic policy realm, where Democrats managed to deny Bush's wishes -- the failure of Bush's Social Security privitization scheme and some isolated disputes over the magnitude of tax cuts.  And there have been some Democratic initiatives -- SCHIPs funding and mandating more home-time for troops -- which were vetoed or filibustered.  But one is very hard pressed to find any meaningful examples beyond those isolated cases.  Indeed, the bulk of Bush's most substantial defeats -- immigration reform, Harriet Miers, the Dubai ports deal -- came as a result of opposition from the Right, not from Democrats.

Bipartisanship -- cooperation and agreement among the two parties -- is the standard operating practice of Washington, and it has been for many years.  It's certainly been vastly more common than the "partisan gridlock" that conventional Beltway wisdom spouters relentlessly complain is plaguing our political process.  There has been far more harmony and agreement among the two parties, particularly their leaders, than there has been acrimony and discord.  I'm asking this literally:  how would it have even been possible to have substantially more bipartisanship over the last eight years than we actually had?

Our political system is afflicted by many, many problems.  A lack of bipartisanship hasn't been one of them.  At least during the Bush era, the Beltway political establishment has been fueled by trans-partisan cooperation and internal allegiance far more than by any ideological differences, policy debates, or partisan warfare.  Do the last eight years -- defined by George Bush's virtually unimpeded political agenda -- leave any doubt about that?   

That's why the outcome of this Joe Lieberman "controversy" is anything but surprising.   Having Democrats overlook Lieberman's extremist views and reward him is anything but "change."  That's perfectly consistent with -- not a departure from -- how Washington works:  political disagreements can be expressed on the rhetorical level but they're virtually always subordinated to the far greater imperative of bipartisan harmony within the political class.

UPDATE:  Here is another intensely shared attribute by both parties:  contempt for, and an insatiable desire to demonize, the so-called "Left."  It's always a close competition among the two parties' leaderships to see which can do that more enthusiastically.

UPDATE II:  The vote to keep Lieberman in his Chair was not even close -- 42-13.  Both Lieberman and Howard Dean agree that it was Obama's desires here that were instrumental in the outcome.  Of Obama, Dean said:  "He called the shots, and that's fine."   That bodes really well for Congressional independence.  Key Obama allies in the Senate -- including Dodd, Durbin and Kerry -- supported Lieberman. 

Senate Democrats believe it's important to reward someone with a powerful Chairmanship who has been a vehement supporter of George Bush, the war in Iraq, the full panoply of anti-constitutional abuses, and an amplifier of the most toxic right-wing toxic points.  At the same time, they consider it a good thing to scorn their supporters on what they consider to be "the Left."  For anyone willing to hear it, they've made as clear and resounding a statement -- again -- about who they are and who they do and don't listen to.

(updated below - Update II)

An article in The Hill, describing how profoundly House Democrats will miss the leadership of Rahm Emanuel, recounts this episode, involving the vote by Democratic Rep. Tim Walz of Minnesota in favor of the dreadful Protect America Act in August of last year (h/t Matt Stoller):

Members said [Emanuel] had a phenomenal knowledge of their districts, and he kept up to date well after the campaign ended. Rep. Tim Walz (D-Minn.) said one of his supporters wrote a letter to the editor of a small paper in his district, complaining about his vote on a rewrite of the Foreign Intelligence Surveillance Act.

Walz mentioned the letter to the editor to Emanuel on the floor and was stunned by his response.

“You mean the one about how you should caucus with the Republicans?” Emanuel shot back. “That’s a good letter. Makes you look bipartisan.”

To this day, Walz is still amazed. “He had read the letter.”

When I first read this passage, I mistakenly thought that was Walz was "stunned" by Emanuel's response because Emanuel was telling him that it is a good thing to infuriate your own supporters by voting in favor of a definitively Republican bill to massively expand the surveillance state at George Bush's behest.  No -- that point was totally unremarkable for Walz and didn't register with him at all.  Walz was merely "stunned" as in "impressed" -- impressed with Emanuel's political acumen at having read and remembered that letter.

This little vignette provides a very vivid and crystallizing illustration of how Congressional Democratic leaders think and behave.  They consider it a good thing -- not a bad thing -- when they anger their own base.  They're thrilled when they get accused -- accurately -- of acting like Republicans and supporting right-wing measures, particularly on national security and "terrorism" issues.   They consider it a benefit -- an incentive -- when they are attacked for embracing Republican political policies and violating the principles of their own base. 

This is undoubtedly the rationale which, at least in part, led to Obama's own reversal on FISA:  namely, it was considered a good thing that he infuriated his core supporters and was accused of supporting definitively Bush/Cheney terrorism policies because -- in the words of his new Chief of Staff -- "it makes you look bipartisan."  See here for the fruits of this thinking.  

Tomorrow, the Senate will vote in secret on whether to deny Joe Lieberman the Chairmanship of the Homeland Security and Governmental Affairs Committee.  Is the anger that will be generated among liberals if Lieberman continues in that position something that Senate Democrats want to avoid or want to provoke?  One wonders how many similar celebrations Congressional Democrats had all those times when they enabled one radical Bush policy after the next and were excoriated by their own voters.

UPDATE:   Numerous sources -- including this one and this one -- are now reporting that the Senate Democratic caucus has reached a deal with Joe Lieberman, and he will retain his Chairmanship of the Homeland Security Committee.  The deal will be ratified in a vote tomorrow morning (and will entail his losing a totally meaningless subcommittee chair).  

Nobody who has watched Congressional Democrats over the last many years could possibly have expected any other outcome.  This is who they are and what they do.  The silver lining is that it will once again remind people, still euphoric over the election results, of this reality.

And as the anger pours forth from people who raise money for Democrats and expended huge amounts of time and effort to elect Barack Obama, the more vindicated Senate Democrats will feel in what they just did.  That's how they look centrist and bipartisan -- by infuriating their supporters, the perceived "Left."  They don't believe in Sister Souljah moments; they believe in Sister Souljahism as an operating principle, a way of life.  Ask Tim Walz.

UPDATE II:  Digby points to a similar and related strain of this thinking.

(updated below)

Last Wednesday, I wrote:

It simply is noteworthy of comment and cause for concern -- though far from conclusive about what Obama will do -- that Obama's transition chief for intelligence policy, John Brennan, was an ardent supporter of torture and one of the most emphatic advocates of FISA expansions and telecom immunity.  

Yesterday, Andrew Sullivan noted that observation but then linked to this post from James Gordon Meek of the Counterrorism blog, which reported that Brennan -- a top CIA aide to George Tenet during most of the Bush administration -- is a leading candidate to replace Mike McConnell and become Obama's Director of National Intelligence.  Meek, not providing any links or citations, wrote:  "Among many things Democrats like about the softspoken Brennan are his anti-torture views" (emphasis added).  Andrew is right when he says:  "They both can't be right."

My statement about Brennan was based on several pieces of compelling evidence.  First, there is this detailed New Yorker article on Bush's secret interrogation programs by Jane Mayer, unquestionably one of the nation's best and most reliable reporters on these matters.  She wrote:

Without more transparency, the value of the C.I.A.’s interrogation and detention program is impossible to evaluate. Setting aside the moral, ethical, and legal issues, even supporters, such as John Brennan, acknowledge that much of the information that coercion produces is unreliable. As he put it, “All these methods produced useful information, but there was also a lot that was bogus.

Mayer explicitly identified Brennan --with whom she spoke concerning these programs -- as a "supporter."

Then there is Brennan's December 5, 2005 appearance on The News Hour with Jim Lehrer, in which he vehemently defended the Bush administration's use of rendition -- one of the key tools to subject detainees to torture:

JOHN BRENNAN: I think over the past decade it has picked up some speed because of the nature of the terrorist threat right now but essentially it's a practice the United States and other countries have used to transport suspected terrorists from a country, usually where they're captured to another country, either their country of origin or a country where they can be questioned, detained or brought to justice. . . .

MARGARET WARNER: So was Secretary Rice correct today when she called it a vital tool in combating terrorism?

JOHN BRENNAN: I think it's an absolutely vital tool. I have been intimately familiar now over the past decade with the cases of rendition that the U.S. Government has been involved in. And I can say without a doubt that it has been very successful as far as producing intelligence that has saved lives.

MARGARET WARNER: So is it -- are you saying both in two ways -- both in getting terrorists off the streets and also in the interrogation?

JOHN BRENNAN: Yes. The rendition is the practice or the process of rendering somebody from one place to another place. It is moving them and the U.S. Government will frequently facilitate that movement from one country to another. . . .

Also I think it's rather arrogant to think we're the only country that respects human rights. I think that we have a lot of assurances from these countries that we hand over terrorists to that they will, in fact, respect human rights.

And there are different ways to gain those assurances. But also let's say an individual goes to Egypt because they're an Egyptian citizen and the Egyptians then have a longer history in terms of dealing with them, and they have family members and others that they can bring in, in fact, to be part of the whole interrogation process.

Even when CBS News -- for which Brennan was serving as an intelligence analyst -- was reporting on the dreadful case of Maher Arar, the Canadian citizen whom the Bush administration abducted at JFK Airport and rendered to Sryia for 10 months to be tortured only for it to then be revealed that he had no connection whatsoever to terrorism, Brennan was defending the rendition program:

CBS NEWS: Despite Arar's experience, this former counterterrorism official says "rendition" does have its place.

Mr. JOHN BRENNAN (CBS News Terrorism Analyst, Former Director, National Counterterrorism Center): I think it allows us to have the option to move a person who is involved in terrorism or terrorism-related activities to a country where they can be effectively questioned or prosecuted.

In November, 2007, Brennan -- in an interview with CBS News' Harry Smith -- issued a ringing endorsement for so-called "enhanced interrogation tactics" short of waterboarding:

SMITH: You know, this all becomes such a giant issue because the president has gone on record so many times saying the United States does not torture. If we acknowledge that this kind of activity [waterboarding] goes on, you know, what does that mean, exactly, I guess?

Mr. BRENNAN: Well, the CIA has acknowledged that it has detained about 100 terrorists since 9/11, and about a third of them have been subjected to what the CIA refers to as enhanced interrogation tactics, and only a small proportion of those have in fact been subjected to the most serious types of enhanced procedures.

SMITH: Right. And you say some of this has born fruit.

Mr. BRENNAN: There have been a lot of information that has come out from these interrogation procedures that the agency has in fact used against the real hard-core terrorists. It has saved lives. And let's not forget, these are hardened terrorists who have been responsible for 9/11, who have shown no remorse at all for the deaths of 3,000 innocents.

In the same interview, Brennan even defended -- or at least justified -- Michael Mukasey's refusal to say whether waterboarding was "torture," on the ground that by doing so, Mukasey would be admitting that the President broke the law (as though that is a valid reason for a prospective Attorney General to refuse to opine on a legal matter):

But I think Judge Mukasey is in a very difficult position right now as the attorney general nominee, to be asked whether or not this is torture. And if torture, then, is unconstitutional or illegal, they're asking whether or not waterboarding is illegal and whether or not the individuals, which includes the president and others--if it was used, who authorized and actually used this type of procedure may be subject to some type of judicial action.

And in July, 2008, NPR attributed Obama's reversal on FISA and telecom immunity to the fact that he was relying on the advice of Brennan, an emphatic supporter of those policies:

What's important here is Obama's reference to the information he's received. He's advised on intelligence matters by John Brennan, the former director of the National Counterterrorism Center. Like many intelligence professionals, Brennan says the FISA program is essential to the fight against terrorism. By adopting Brennan's view, Obama improves his standing with the intelligence community. For someone looking ahead to a presidential administration, that's important.

In fairness, Brennan, over the last couple of years, as he's become more attached to Obama's campaign, has several times said that waterboarding specifically is wrong, that it is "inconsistent with American values and it's something that should be prohibited."  In a 2006 PBS interview, he said that "the dark side has its limits"; that "we're going to look back on this time and regret some of the things that we did, because it is not in keeping with our values"; and, to his credit, he urged that there be much greater openness in debating policies such as eavesdropping and interrogation.

As I noted the other day, Obama is going to have a wide panoply of advisers and, especially now before they're appointed, it's important not to draw unwarranted conclusions or to believe the endless parade of gossip about who is going to be appointed to what positions. Still, Brennan has been and continues to be an extremely important adviser for Obama on intelligence issues.  His views on past administration conduct are, in many important instances, clearly disturbing and bear watching.

* * * * * 

Last month, I interviewed Harper's Scott Horton regarding a piece he had written on the efforts of several PBS officials, including Jay Rockefeller's wife (the CEO of Washington's PBS affiliate) to block broadcast of the documentary Torturing Democracy, which compellingly documents how virtually all of the torture and other illegalities and abuses of America's interrogation programs were authorized and ordered at the highest levels of the Bush administration (of which waterboarding is but one small example).

That documentary is now available to be viewed in its entirety online -- here -- and I can't recommend it highly enough.  Though it includes a few standard documentary tactics that I could do without (ominous music, grave-toned narration, black-and-white up-close photos of the villains), it is an extraordinarily well-documented account of America's torture program over the last seven years and, most informatively, the role that top Bush officials played in those programs.  Notably, most of the sources on which it relies are former U.S. military and Bush administration officials who waged courageous though ultimately unsuccessful battles to halt these programs.

I'm particularly amazed that someone could be aware of this set of facts -- could know that our highest government officials deliberately and knowingly authorized torture techniques that are war crimes under both U.S. law and international treaties to which we are a party -- and still argue, as so many do, that it would be wrong to hold these political officials accountable for the laws they systematically violated.  It's easy to say how horrendous one finds torture to be.  But those who simultaneously advocate that American political leaders should be immunized from the consequences of their criminality -- that, in essence, we should refrain from enforcing these laws -- are proving that those are empty words indeed.

UPDATE:  The aforementioned James Gordon Meek, who is the Washington correspondent for The New York Daily News, sent me a reply this morning by email, which is posted here.  My response to him is also posted there.

(updated below)

As we've seen many times and in many contexts, one of the most empty-headed, trite and deceitful pundit techniques is to take one's own viewpoint and, without an iota of polling data or other empirical support, attribute it to the "average/ordinary/moderate American" and then, with deep concern, warn political leaders that they will harm themselves politically -- will alienate the fair-minded moderate voters -- if they don't follow that view.  Even for the most ideologically extreme pundits who rely on this tactic, it always just so happens that their own views -- magically -- are the same as the ones that just happen to be held by the majority of Good Centrist Voters as well.

There are few more mindless practitioners of this technique than Marty Peretz's assistant, Jamie Kirchick.  In a New Republic article yesterday defending Joe Lieberman and urging that he keep his Homeland Security Chairmanship (TNR, of course, announced in 2004 that its editorial mission would be to ensure that the Democratic Party was led by Joe Lieberman's "principles"), Kirchick identified some of those who are advocating for Lieberman's removal -- Daily Kos, Joe Klein, Josh Marshall, Jane Hamsher -- and then declared:

If Democrats follow the cues of this crowd, then the party will lose credibility among the moderate majority of the American electorate.

Indeed.  It is Jamie Kirchick -- who spent the whole year embodying the most ludicrous extremes of neoconservatism, venerating John McCain and demonizing Barack Obama as a weak radical -- who, along with Kirchick's ideological comrade, Joe Lieberman, is the symbol for the "moderate majority of the American electorate."  Therefore, any opposition to the Kirchicks and Liebermans will doom the Democratic Party.

Apparently, Americans -- the normal, moderate, mainstream kind -- will be absolutely furious if the Homeland Security Committee isn't chaired by Joe Lieberman.  They believe that in exactly the same way that Democrats would pay a huge price in the 2006 midterm elections if Joe Lieberman was defeated in the primary -- 2006's version of conventional wisdom at TNR and (excuse the redundancy) the Beltway generally -- because the same mythic average moderate American voters would view Lieberman's defeat as evidence that the Democratic Party was as an intolerant, Far Left anti-war party and would punish them in the 2006 midterm elections for their blasphemy against Lieberman.  Before that, the same mentality led to the insistence that the Democrats' opposition to the Iraq War -- of all things -- would doom their chances among moderate voters.

There is and always has been a Beltway cottage industry of trite, platitude-spouting establishment-defenders whose only "argument" consists of issuing grave warnings that Democrats will suffer if they don't ignore and scorn "the Left" (defined as any Democrat dissimilar to Joe Lieberman).  They invariably purport to speak on behalf of unseen majorities and they are invariably painfully wrong, though with no effect on future behavior.  As but one example, writing last March in The Politico, Kirchick -- then speaking on behalf of "most general election voters" -- issued this dire warning about Obama's chances in the general election:

[Obama] wants us to think that in all of his heart-to-heart conversations with [Jeremiah Wright], he never saw the angry, conspiratorial and America-hating minister now topping the charts on YouTube. Many of Obama’s supporters – given the messianic milieu of his campaign – are credulous enough to believe these evasions. But most general election voters will not. 

The media focused non-stop for weeks on Wright, and the week before the election, a GOP group spent millions of dollars to run anti-Obama ads featuring Jeremiah Wright in Pennsylvania, Ohio and Florida.  Obama won all three states.

Now, these same self-anointed spokespeople for the Moderate Voter are announcing that Democrats strip Joe Lieberman of his Chairmanship at their own peril -- the same Lieberman who:

• is a vehement supporter of one of the most unpopular wars in American history;
•  
• vigorously campaigned for a  presidential candidate who just lost in a landslide;
•  
• champions all sorts of policies -- from the abolition of habeas corpus, waterboarding, a refusal to negotiate with Iran, a belief in bombing Syria, remaining in Iraq indefinitely -- that the newly elected President emphatically opposes;
•  
• is so radioactive that no Democratic presidential candidate even wanted his endorsement; and,
•  
• is deeply unpopular even in his own state.

So, to recap:  Moderate voters are going to rise up in rebellious outrage if the Democrats don't award a powerful Chairmanship to a Senator who espouses positions which most Americans hate; who spent the last year vigorously campaigning for the political party that, for the second straight election, got crushed; and who is widely disliked even in his own state. 

Additionally, it would be a grave mistake for Democrats to do anything other than scorn and reject the huge numbers of highly engaged citizens online who pour energy and money into the Party and who espouse views that have increasingly become the mainstream.  And, most of all, the salvation for the Democratic Party depends upon their embracing and listening to the likes of Joe Lieberman, Marty Peretz's assistant and The New Republic, because those parties have such a sterling record of prescience and speaking for the core desires of Average Moderate Voter (speaking of which, here's TNR's Jonathan Chait yesterday, similarly warning that Obama's presidency will die if he listens to "the identity politics [of the] left," takes diversity into account when making high-level appointments, and fails to pick Larry Summers as Treasury Secretary).

The fact that someone holds fringe, widely discredited views -- with a history of supporting a now-collapsed political party -- doesn't prove that they are wrong.  But it does mean that they are not Spokespeople for "the moderate majority of the American electorate."

UPDATE:  I actually agree completely with Jim Henley's point here that very few people outside of very highly engaged political observers actually care if Joe Lieberman is or isn't the Chairman of the Homeland Security Committee.  I tried to make that point, probably more subtly than I should have, by deriding the belief that "Americans -- the normal, moderate, mainstream kind -- will be absolutely furious if the Homeland Security Committee isn't chaired by Joe Lieberman."

That said, I do think there are potentially significant implications from the Democrats rewarding Lieberman:  the general statement about what kind of party they are, what views are welcomed in it, the total lack of party discipline, the greater allegiance to each other than their supporters, etc.   But the notion that the average moderate American is going to be angered if Democrats deny Lieberman this Chairmanship -- or care one way or the other -- is clearly silly.