Lieberman Socks!

There is nothing better than a good laugh . . . except maybe a good sneeze. And, of course, that toe-curling wave of pleasure that makes even us atheists call out for God.

From Common Dreams

Published on Wednesday, December 16, 2009 by Salon.com

White House as Helpless Victim on Health Care

by Glenn Greenwald

Of all the posts I wrote this year, the one that produced the most vociferious email backlash -- easily -- was this one from August, which examined substantial evidence showing that, contrary to Obama's occasional public statements in support of a public option, the White House clearly intended from the start that the final health care reform bill would contain no such provision and was actively and privately participating in efforts to shape a final bill without it.  From the start, assuaging the health insurance and pharmaceutical industries was a central preoccupation of the White House -- hence the deal negotiated in strict secrecy with Pharma to ban bulk price negotiations and drug reimportation, a blatant violation of both Obama's campaign positions on those issues and his promise to conduct all negotiations out in the open (on C-SPAN).  Indeed, Democrats led the way yesterday in killing drug re-importation, which they endlessly claimed to support back when they couldn't pass it.  The administration wants not only to prevent industry money from funding an anti-health-care-reform campaign, but also wants to ensure that the Democratic Party -- rather than the GOP -- will continue to be the prime recipient of industry largesse.

As was painfully predictable all along, the final bill will not have any form of public option, nor will it include the wildly popular expansion of Medicare coverage.  Obama supporters are eager to depict the White House as nothing more than a helpless victim in all of this -- the President so deeply wanted a more progressive bill but was sadly thwarted in his noble efforts by those inhumane, corrupt Congressional "centrists."  Right.  The evidence was overwhelming from the start that the White House was not only indifferent, but opposed, to the provisions most important to progressives.  The administration is getting the bill which they, more or less, wanted from the start -- the one that is a huge boon to the health insurance and pharmaceutical industry.   And kudos to Russ Feingold for saying so:

Sen. Russ Feingold (D-Wis.), among the most vocal supporters of the public option, said it would be unfair to blame Lieberman for its apparent demise. Feingold said that responsibility ultimately rests with President Barack Obama and he could have insisted on a higher standard for the legislation.
"This bill appears to be legislation that the president wanted in the first place, so I don't think focusing it on Lieberman really hits the truth," said Feingold. "I think they could have been higher. I certainly think a stronger bill would have been better in every respect."

Let's repeat that:  "This bill appears to be legislation that the president wanted in the first place."  Indeed it does.  There are rational, practical reasons why that might be so.  If you're interested in preserving and expanding political power, then, all other things being equal, it's better to have the pharmaceutical and health insurance industry on your side than opposed to you.  Or perhaps they calculated from the start that this was the best bill they could get.  The wisdom of that rationale can be debated, but depicting Obama as the impotent progressive victim here of recalcitrant, corrupt centrists is really too much to bear.

Yet numerous Obama defenders -- such as Matt Yglesias, Ezra Klein and Steve Benen -- have been insisting that there is just nothing the White House could have done and all of this shows that our political system is tragically "ungovernable."  After all, Congress is a separate branch of government, Obama doesn't have a vote, and 60 votes are needed to do anything.  How is it his fault if centrist Senators won't support what he wants to do?  Apparently, this is the type of conversation we're to believe takes place in the Oval Office:

The President:  I really want a public option and Medicare buy-in.  What can we do to get it?
Rahm Emanuel:  Unfortunately, nothing.  We can just sit by and hope, but you're not in Congress any more and you don't have a vote.  They're a separate branch of government and we have to respect that.
The President:  So we have no role to play in what the Democratic Congress does?
Emanuel:  No.  Members of Congress make up their own minds and there's just nothing we can do to influence or pressure them.

The President:  Gosh, that's too bad.  Let's just keep our fingers crossed and see what happens then.

In an ideal world, Congress would be -- and should be -- an autonomous branch of government, exercising judgment independent of the White House's influence, but that's not the world we live in.  Does anyone actually believe that Rahm Emanuel (who built his career on industry support for the Party and jamming "centrist" bills through Congress with the support of Blue Dogs) and Barack Obama (who attached himself to Joe Lieberman when arriving in the Senate, repeatedly proved himself receptive to "centrist" compromises, had a campaign funded by corporate interests, and is now the leader of a vast funding and political infrastructure) were the helpless victims of those same forces?  Engineering these sorts of "centrist," industry-serving compromises has been the modus operandi of both Obama and, especially, Emanuel.

Indeed, we've seen before what the White House can do -- and does do -- when they actually care about pressuring members of Congress to support something they genuinely want passed.  When FDL and other liberal blogs led an effort to defeat Obama's war funding bill back in June, the White House became desperate for votes, and here is what they apparently did (though they deny it):

The White House is playing hardball with Democrats who intend to vote against the supplemental war spending bill, threatening freshmen who oppose it that they won't get help with reelection and will be cut off from the White House, Rep. Lynn Woolsey (D-Calif.) said Friday.  "We're not going to help you. You'll never hear from us again," Woolsey said the White House is telling freshmen.

That's what the White House can do when they actually care about pressuring someone to vote the way they want.  Why didn't they do any of that to the "centrists" who were supposedly obstructing what they wanted on health care?  Why didn't they tell Blanche Lincoln -- in a desperate fight for her political life -- that she would "never hear from them again," and would lose DNC and other Democratic institutional support, if she filibustered the public option?  Why haven't they threatened to remove Joe Lieberman's cherished Homeland Security Chairmanship if he's been sabotaging the President's agenda?  Why hasn't the President been rhetorically pressuring Senators to support the public option and Medicare buy-in, or taking any of the other steps outlined here by Adam Green?  There's no guarantee that it would have worked -- Obama is not omnipotent and he can't always control Congressional outcomes -- but the lack of any such efforts is extremely telling about what the White House really wanted here.

Independent of the reasonable debate over whether this bill is a marginal improvement over the status quo, there are truly horrible elements to it.  Two of the most popular provisions (both of which, not coincidentally, were highly adverse to industry interests) -- the public option and Medicare expansion -- are stripped out (a new Washington Post/ABC poll out today shows that the public favors expansion of Medicare to age 55 by a 30-point margin).  What remains is a politically distastrous and highly coercive "mandate" gift to the health insurance industry, described perfectly by Digby:

Obama can say that you're getting a lot, but also saying that it "covers everyone," as if there's a big new benefit is a big stretch. Nothing will have changed on that count except changing the law to force people to buy private insurance if they don't get it from their employer. I guess you can call that progressive, but that doesn't make it so. In fact, mandating that all people pay money to a private interest isn't even conservative, free market or otherwise. It's some kind of weird corporatism that's very hard to square with the common good philosophy that Democrats supposedly espouse.

Nobody's "getting covered" here. After all, people are already "free" to buy private insurance and one must assume they have reasons for not doing it already. Whether those reasons are good or bad won't make a difference when they are suddenly forced to write big checks to Aetna or Blue Cross that they previously had decided they couldn't or didn't want to write. Indeed, it actually looks like the worst caricature of liberals: taking people's money against their will, saying it's for their own good --- and doing it without even the cover that FDR wisely insisted upon with social security, by having it withdrawn from paychecks. People don't miss the money as much when they never see it.

In essence, this re-inforces all of the worst dynamics of Washington.  The insurance industry gets the biggest bonanza imaginable in the form of tens of millions of coerced new customers without any competition or other price controls.  Progressive opinion-makers, as always, signaled that they can and should be ignored (don't worry about us -- we're announcing in advance that we'll support whatever you feed us no matter how little it contains of what we want and will never exercise raw political power to get what we want; make sure those other people are happy but ignore us).  Most of this was negotiated and effectuated in complete secrecy, in the sleazy sewers populated by lobbyists, industry insiders, and their wholly-owned pawns in the Congress.  And highly unpopular, industry-serving legislation is passed off as "centrist," the noblest Beltway value.

Looked at from the narrow lens of health care policy, there is a reasonable debate to be had among reform advocates over whether this bill is a net benefit or a net harm.  But the idea that the White House did what it could to ensure the inclusion of progressive provisions -- or that they were powerless to do anything about it -- is absurd on its face.  Whatever else is true, the overwhelming evidence points to exactly what Sen. Feingold said yesterday:  "This bill appears to be legislation that the president wanted in the first place."

Copyright ©2009 Salon Media Group, Inc.

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.

Keith Olberman's Special Comment

Senate Bill Unsupportable

Transcript

Finally, as promised, a Special Comment on the latest version of H-R 35-90, the Senate Health Care Reform bill. To again quote Churchill after Munich, as I did six nights ago on this program: "I will begin by saying the most unpopular and most unwelcome thing: that we have sustained a total and unmitigated defeat, without a war."

Last night on this program Howard Dean said that with the appeasement of Mr. Lieberman of Connecticut by the abandonment of the Medicare Buy-in, he could no longer support H-R 35-90. Dr. Dean's argument is informed, cogent, heart breaking, and unanswerable.

Seeking the least common denominator, Sen. Reid has found it, especially the "least" part. This is not health, this is not care, this is certainly not reform. I bless the Sherrod Browns and Ron Wydens and Jay Rockefellers and Sheldon Whitehouses and Anthony Weiners and all the others who have fought for real reform and I bleed for the pain inflicted upon them and their hopes. They have done their jobs and served their nation.

But through circumstances beyond their control, they are now seeking to reanimate a corpse killed by the Republicans, and by a political game played in the Senate and in the White House by men and women who have now proved themselves poorly equipped for the fight. The "men" of the current moment, have lost to the "mice" of history.

They must now not make the defeat worse by passing a hollow shell of a bill just for the sake of a big-stage signing ceremony. This bill, slowly bled to death by the political equivalent of the leeches that were once thought state-of-the-art-medicine, is now little more than a series of microscopically minor tweaks of a system which is the real-life, here-and-now version, of the malarkey of the Town Hallers. The American Insurance Cartel is the Death Panel, and this Senate bill does nothing to destroy it. Nor even to satiate it.

It merely decrees that our underprivileged, our sick, our elderly, our middle class, can be fed into it, as human sacrifices to the great maw of corporate voraciousness, at a profit per victim of 10 cents on the dollar instead of the current 20. Even before the support columns of reform were knocked down, one by one, with the kind of passive defense that would embarrass a touch-football player - single-payer, the public option, the Medicare Buy-In - before they vanished, the Congressional Budget Office estimated that the part of this bill that would require you to buy insurance unless you could prove you could not afford it, would cost a family of four with a household income of 54-thousand dollars a year, 17 percent of that income. Nine thousand dollars a year. Just for the insurance!

That was with a public option. That was with some kind of check on the insurance companies. That was before — as Howard Dean pointed out — the revelation that the cartel will still be able to charge older people more than others; will — at the least — now be able to charge much more, maybe 50 percent more, for people with pre-existing conditions — pre-existing conditions; you know, like being alive.

You have just agreed to purchase a product. If you do not, you will be breaking the law and subject to a fine. You have no control over how much you will pay for the product. The government will have virtually no control over how much the company will charge for the product. The product is designed like the Monty Python sketch about the insurance company's "Never-Pay" policy ... "which, you know, if you never claim — is very worthwhile. But you had to claim, and, well, there it is."

And who do we have to blame for this? There are enough villains to go around, men and women who, in a just world, would be the next to get sick and have to sell their homes or their memories or their futures — just to keep themselves alive, just to keep their children alive, against the implacable enemy of American society, the insurance cartel. Mr. Grassley of Iowa has lied, and fomented panic and fear. Mr. DeMint of South Carolina has forgotten he represents people, and not just a political party. Mr. Baucus of Montana has operated as a virtual agent for the industry he is charged with regulating. Mr. Nelson of Nebraska has not only derailed reform, he has tried to exploit it to overturn a Supreme Court decision that, in this context, is frankly none of his goddamned business.

They say they have done what they have done for the most important, the most fiscally prudent, the most gloriously phrased, the most inescapable of reasons. But mostly they have done it for the money. Lots and lots of money from the insurance companies and the pharmacological companies and the other health care companies who have slowly taken this country over.

Which brings us to Mr. Lieberman of Connecticut, the one man at the center of this farcical perversion of what a government is supposed to be. Out of pique, out of revenge, out of betrayal of his earlier wiser saner self, he has sold untold hundreds of thousands of us into pain and fear and privation and slavery — for money. He has been bought and sold by the insurance lobby. He has become a Senatorial prostitute. And sadly, the President has not provided the leadership his office demands.

He has badly misjudged the country's mood at all ends of the spectrum. There is no middle to coalesce here, Sir. There are only the uninformed, the bought-off, and the vast suffering majority for whom the urgency of now is a call from a collection agency or a threat of rescission of policy or a warning of expiration of services.

Sir, your hands-off approach, while nobly intended and perhaps yet some day applicable to the reality of an improved version of our nation, enabled the national humiliation that was the Town Halls and the insufferable Neanderthalian stupidity of Congressman Wilson and the street-walking of Mr. Lieberman.

Instead of continuing this snipe-hunt for the endangered and possibly extinct creature "bipartisanship," you need to push the Republicans around or cut them out or both. You need to threaten Democrats like Baucus and the others with the ends of their careers in the party. Instead, those Democrats have threatened you, and the Republicans have pushed you and cut you out.

Mr. President, the line between "compromise" and "compromised" is an incredibly fine one. Any reform bill enrages the right, and provides it with the war cry around which it will rally its mindless legions in the midterms and in '12. But this Republican knee-jerk inflexibility provides an incredible opportunity to you, Sir, and an incredible license.

On April 6th 2003, I was approached by two drunken young men at a baseball game. One of them started to ask for an autograph. The other stopped him by shouting "Screw him, he's a liberal." This program had been on the air for three weeks. It had to that point consisted entirely of brief introductions to correspondents in Iraq or to military analysts. There had been no criticism, no political analysis, no commentary. I had not covered news full-time for more than four years. I could not fathom on what factual basis, I was being called a "liberal," let alone being sworn at for being such.

Only later did it dawn on me that it didn't matter why, and it didn't matter that they were doing it — it only mattered that if I was going to be mindlessly criticized for anything, the reaction would be identical whether I did nothing that engendered it, or stood for something that engendered it.

Mr. President, they are calling you a socialist, a communist, a Marxist. You could be further to the right than Reagan - and this health care bill, as Howard Dean put it here last night, this bailout for the insurance industry, sure invites the comparison. And they will still call you names.

Sir, if they are going to call you a socialist no matter what you do, you have been given full unfettered freedom to do what you know is just. The bill may be the ultimate political manifesto, or it may be the most delicate of compromises. The firestorm will be the same. So why not give the haters, as the cliché goes, something to cry about.

But concomitant with that is the reaction from Democrats and Independents. You have riven them, Sir. Any bill will engender criticism but this bill costs you the left — and anybody who now has to pony up 17 percent of his family's income to buy this equivalent of Medical Mobster Protection Money.

Some speaking for you, Sir, have called the public option a fetish. They may be right. But to stay with this uncomfortable language, this bill is less fetish, more bondage. Nothing short of your re-election and the re-election of dozens of Democrats in the house and senate, hinges in large part on this bill. Make it palatable or make it go away or make yourself ready — not merely for a horrifying campaign in 2012 — but for the distinct possibility also of a primary challenge.

Befitting the season, Sir, these are not the shadows of the things that will be, but the shadows of the things that may be. But at this point, Mr. President, only you can make certain of that. There is only one redemption possible. The mandate in this bill under which we are required to buy insurance must be stripped out.

The bill now is little more than a legally mandated delivery of the middle class (and those whose dreams of joining it slip ever further away) into a kind of Chicago stockyards of insurance. Make enough money to take care of yourself and your family and you must buy insurance — on the insurers terms — or face a fine.

This provision must go. It is, above all else, immoral and a betrayal of the people who elected you, Sir. You must now announce that you will veto any bill lacking an option or buy-in, but containing a mandate.

And Sen. Reid, put the public option back in, or the Medicare Buy-In, or both. Or single-payer. Let Lieberman and Ben Nelson and Baucus and the Republicans vote their lack-of-conscience and preclude 60 "ayes." Let them commit political suicide instead of you.

Let Mr. Lieberman kill the bill — then turn to his Republican friends only to find out they hate him more than the Democrats do. Let him stagger off the public stage, to go work for the insurance industry. As if he is not doing that now.

Then, Mr. Reid, take every worthwhile provision of health care reform you legally can, and pass it via reconciliation, when ever and how ever you can — and by the way, a Medicare Buy-In can be legally passed via reconciliation. The Senate bill with the mandate must be defeated, if not in the Senate, then in the House.

Health care reform that benefits the industry at the cost of the people is intolerable and there are no moral constructs in which it can be supported. And if still the bill and this heinous mandate become law there is yet further reaction required. I call on all those whose conscience urges them to fight, to use the only weapon that will be left to us if this bill becomes law. We must not buy federally mandated insurance if this cheesy counterfeit of reform is all we can buy.

No single payer? No sale. No public option? No sale. No Medicare buy-in? No sale. I am one of the self-insured, albeit by choice. And I hereby pledge that I will not buy this perversion of health care reform. Pass this at your peril, Senators, and sign it at yours, Mr. President. I will not buy this insurance. Brand me a lawbreaker if you choose. Fine me if you will. Jail me if you must.

But if the Medicare Buy-In goes, but the Mandate stays, the people who fought so hard and so sincerely to bring sanity to this system must kill this mutated version of their dream, because those elected by us to act for us have forgotten what must be the golden rule of health care reform. It is the same one to which physicians are bound, by oath: First do no harm.

From Daily Kos

20 answers 

by kos

Let me say up front that my disagreement with the "support the current bill" crowd is based on policy and political considerations, but I can see how reasonable people can come to the opposite conclusion. I don't think supporters of this wreck of a bill are stupid or compromised or anything like that. I'm not like Joe Klein railing against "assorted nonsense from left-bloggers", which so reminds me of his ad hominems during the Iraq War debate. How'd that turn out, Joe?

In short, there appears to be a divide between those who think the insurance industry will play nice, even with little incentive to do so, and people like me who don't. They believe that government will enforce the new regulations, people like me have seen entire industries employ armies of lawyers and lobbyists with the sole intent of undermining and avoiding such regulations. I'm a half-empty guy, others are half-full. Regardless, this is a fantastic debate. For critics who bemoaned the lack of policy discussed on blogs, this year has certainly proven that when we do have the opportunity to impact policy (i.e. a Democratic-run government), we certainly can get into the weeds on policy.

Ezra Klein takes me to task for my opposition to the mandate, pointing out that Switzerland, among other systems, have mandates that require citizens to purchase health insurance from private insurers. It's true. They do. Those countries also have strict regulatory regimes that heavily regulate those insurance companies. In Switzerland, for example, insurance companies cannot profit from the essential benefits plan everyone must purchase. That's kind of an important detail missing from the Senate's monstrosity of a bill. In addition, Switzerland also strictly regulates the price of medicines and medical devices -- something this Senate has explicitly refused to allow.

Give me those kinds of restrictions to the Senate bill, and I'll rethink my opposition.
Then there's Nate Silver and his 20 questions For Bill Killers, which I'll happily answer:

Click here to read the 20 answers and the entire post.

Lost Before It Began
 by Dee Newman

The reason crazy Joe Lieberman is smiling so big is because he thinks he has won . . . that he and his beloved benefactors – of the American health insurance industry – have succeed in gutting health insurance reform, while at the same time, coercing Congress into requiring every American to pay premiums to them – ever increasing premiums with no other alternative.

And perhaps, he’s right, but the game is still not quite over. It is possible that a progressive Senators or two could still locate their gonads and force the President and his administration to by-pass Senator Lieberman and company and use reconciliation to pass real health insurance reform.

Now, that would most likely require the Senate Democratic leadership (if you can call them that with a straight-face and without gagging) to split the bill up and pass a robust “public option” through reconciliation and pass the less controversial measures (like prohibiting insurers from rejecting people based on pre-existing conditions) separately.

Unfortunately, that strategy will take time and involves risks that President Obama does not seem to have the audacity or the wherewithal to even contemplate, let alone, attempt.

Ultimately, if in the end, the President and progressives in Congress accept the demands and conditions of crazy Joe and company, then the future looks rather dismal. Giving in to these buffoons will only emboldened them. The chances of passing any decent bill on any of the major legislative fights to come will be slim to none.

I truly hope that some progressive senator has the balls to put a stop to this charade and force the President and the congressional leadership to use reconciliation and tell crazy Joe and the other conservative democrats what they can do with their vote. Unfortunately, at this point I do not think that will happen.

Let’s be honest, the health care debate was lost before it began. It was lost from the moment the President decided to forget about expanding Medicare to cover all Americans.  From the outset the President pledged that he would only sign a bill that included a “public option” that might one day lead to “Medicare-for-all.”

By abandoning Medicare-for-all from the get-go, the public option, instead of being seen as a compromise and the moderate market-based approach it actually is, was immediately ridiculed and portrayed by conservatives throughout the debate as a radical left position and a socialist big-government takeover of health care.

There is a lesson here for all of us to learn. If the President wants to steer a middle course, so be it. But, the ship of state will continue to veer starboard if progressives continue to allow the winds of change to be diffused and dispersed by a lot of hot air from the doldrums.

Have you heard this one?

Lost

A woman in a hot air balloon realized she was lost. She lowered her altitude and spotted a man in a boat below. She shouted to him,

               "Excuse me, can you help me? I promised a friend I would meet him an hour ago, but I don't know where I am."

               The man consulted his portable GPS and replied, "You're in a hot air balloon, approximately 30 feet above ground elevation of 2,346 feet above sea level. You are at 31 degrees, 14.97 minutes north latitude and 100 degrees, 49.09 minutes west longitude.

               "She rolled her eyes and said, "You must be an Obama Democrat."

               "I am,"replied the man. "How did you know?"

               "Well," answered the balloonist, "everything you told me is technically correct. But I have no idea what to do with your information, and I'm still lost. Frankly, you've not been much help to me."

               The man smiled and responded, "You must be a Republican."

               "I am," replied the balloonist. "How did you know?"

               "Well," said the man, "you don't know where you are or where you are going. You've risen to where you are due to a large quantity of hot air. You made a promise you have no idea how to keep, and you expect me to solve your problem. You're in exactly the same position you were in before we met, but somehow, now it's my fault."

Blistering Indictment Leveled Against Obama Over His Handling of Bush-Era War Crimes

Saturday 12 December 2009

by: Jason Leopold, t r u t h o u t | Report

During his 36-minute speech after accepting the Nobel Peace Prize in Oslo, Norway Thursday, President Barack Obama explained to an audience of 1,000 how the United States has a "moral and strategic interest" in abiding by a code of conduct when waging war - even one that pits the US against a "vicious adversary that abides by no rules."

"That is what makes us different from those whom we fight," Obama said. "That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America’s commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. And we honor those ideals by upholding them not just when it is easy, but when it is hard."

To many human rights advocates, however, Obama’s high-minded declaration rang hollow in light of fresh reports that his administration continues to operate secret prisons in Afghanistan where detainees have allegedly been tortured and where the International Committee for the Red Cross has been denied access to the prisoners.

Obama has substituted words for action on issues surrounding torture since his first days in office nearly one year ago. Last June, on the 25th anniversary of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Obama said the US government "must stand against torture wherever it takes place" and that his administration "is committed to taking concrete actions against torture and to address the needs of its victims."

But it’s clear that his pledge does not apply to torture committed by Bush administration officials.

That’s the point the American Civil Liberties Union (ACLU) made shortly after Obama’s acceptance speech. Officials from the civil rights organization issued a withering indictment of the Obama administration’s handling of clear-cut cases of war crimes they say were committed by former Bush officials who the Obama administration not only refuses to prosecute but has gone to extraordinary lengths to cover up.

"We're increasingly disappointed and alarmed by the current administration's stance on accountability for torture," said Jameel Jaffer, director of the ACLU’s National Security Project, during a conference call with reporters. "On every front, the [Obama] administration is actively obstructing accountability. This administration is shielding Bush administration officials from civil liability, criminal investigation and even public scrutiny for their role in authorizing torture."

Before leaving office, Dick Cheney said he approved waterboarding on at least three "high value" detainees and the "enhanced interrogation" of 33 other prisoners. President Bush made a somewhat vaguer acknowledgement of authorizing these techniques.

The ACLU and other civil rights groups said Bush and Cheney’s comments amounted to an admission of war crimes.

Under the Convention Against Torture, the clear record that the Bush administration used waterboarding and other brutal techniques to extract information from detainees should have triggered the United States to conduct a full investigation and to prosecute the offenders. In the case of the US's refusal to do so, other nations would be obligated to act under the principle of universality.

However, instead of living up to that treaty commitment, the Obama administration is resisting calls for government investigations and going to court to block lawsuits that demand release of torture evidence or seek civil penalties against officials implicated in the torture.

Jaffer said that while "the Bush administration constructed a legal framework for torture, now the Obama administration is constructing a legal framework for impunity."

Defending John Yoo

Indeed, last week, Obama’s Justice Department asked a federal appeals court in San Francisco to dismiss a lawsuit filed against former Justice Department lawyer John Yoo, who authored some of the memos that justified torture largely by re-defining what the term means.

In seeking to quash that lawsuit filed by alleged “dirty bomb” plotter Jose Padilla, Obama’s lawyers argued, in a friend-of-the-court brief that Justice Department lawyers who advise on torture and other human rights issues are entitled to absolute immunity from lawsuits.

"The Holder Justice Department insists that they are absolutely not responsible, and that they are free to act according to a far lower standard of conduct than that which governs Americans generally," wrote Scott Horton, a human rights attorney and constitutional expert in a column published on the Harper’s web site. "Indeed, this has emerged as a sort of ignoble mantra for the Justice Department, uniting both the Bush and Obama administrations."

Constitutional law professor Jonathan Turley went even further, asserting that the Obama administration’s arguments reversed more than six decades of US legal precedents – dating back to the post-World War II Nuremberg trials – which held that legal wordsmiths who clear the way for war crimes share the guilt with the actual perpetrators.

The Obama administration "has gutted the hard-fought victories in Nuremberg where lawyers and judges were often guilty of war crimes in their legal advice and opinions," Turley said. "Quite a legacy for the world’s newest Nobel Peace Prize winner."

What’s remarkable about the Obama Justice Department’s amicus brief in the Padilla case is that it didn't need to be filed to begin with. Yoo hired a private defense attorney, albeit one who is paid for with taxpayer dollars, earlier this year when the Justice Department backed out of representing Yoo due to undisclosed conflicts.

"Qualified Immunity"

In court papers filed last week, the Obama administration took a hard line in another case, arguing that a Supreme Court ruling that gave detainees the right to challenge their indefinite imprisonment doesn't apply to the cases of Yasser Al-Zahrani and Salah Al-Salami, two Guantanamo prisoners who committed suicide in June 2006.

The fathers of the men, who were never charged with a crime, sued Bush administration Defense Department officials in federal court, arguing that the torture their sons endured drove them to hang themselves on June 10, 2006 after being detained for four years.

But the Obama administration said in a legal brief that the Military Commissions Act of 2006 stripped the courts of jurisdiction to hear lawsuits that challenged the "detention, transfer, treatment or conditions of confinement" of "enemy combatants."

Moreover, in court papers filed in June, the Obama administration said, "Judicial intrusion into this politically sensitive area by creating a damages remedy for detainees could subvert these military and diplomatic efforts and lead to 'embarrassment of our government abroad.'"

Besides, the Obama administration said, just as John Yoo is entitled to absolute immunity, Defense Department officials are entitled to "qualified immunity" because the "Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees."

Earlier this week, a report prepared by the Seton Hall University School of Law Center for Policy & Research called into question the veracity of the government's official version of the deaths of the two men and that of a third prisoner, who was also found hanging in his cell on June 10, 2006. The government attributed the suicides to "asymmetrical warfare."

"Both the time and exact manner of the deaths remain uncertain, and the presence of rags stuffed in the detainees‘ throats is unexplained," the report said.

CIA Renditions and State Secrets

The Obama administration also has mounted an aggressive defense in another high-profile case regarding the Bush administration’s wrongdoing.

The Bush administration had invoked the state secrets privilege in a 2007 lawsuit filed against Jeppesen DataPlan, a subsidiary of Boeing, that is accused of knowingly flying people kidnapped by the CIA to secret overseas prisons where they were tortured. Bush’s legal move was successful in getting the case tossed out, but the ACLU appealed the decision.

When that appeal came up last February, Obama’s Justice Department shocked civil liberties and human rights advocates by dispatching attorneys to federal court in San Francisco, where they invoked the same state secrets privilege.

Even the judge was baffled, and asked a Justice Department attorney if the change in US government leadership would lead to a change in the legal position with regard to state secrets. The answer was a resounding “no.”

Still, the appellate court ruled in April that the case could move forward, asserting that state secrets can only be cited with regard to specific evidence, and not used as a means to dismiss an entire lawsuit. Justice Department attorneys will be back in court next week to appeal that decision, carrying forward the Bush administration’s legacy of secrecy.

Concealing Evidence

The Obama administration also has tried to block Binyam Mohamed, one of the victims named in Jeppesen lawsuit, from obtaining documentary evidence to support his claims that he was tortured while in US custody.

Terrorism-related charges against Mohamed were dropped last year when his attorneys sued to gain access to more than three dozen secret documents. He was released in February after being imprisoned for seven years and sent back to Great Britain.

In a legal brief, the ACLU said Mohamed was beaten so severely on numerous occasions that he routinely lost consciousness and during one gruesome torture session “a scalpel was used to make incisions all over his body, including his penis, after which a hot stinging liquid was poured into his open wounds.”

Obama’s determination to protect these dirty secrets of its predecessors even reached across the Atlantic. The Obama administration told British officials that intelligence sharing between the US and the UK might be disrupted if seven redacted paragraphs contained in secret US documents relating to Mohamed’s torture allegations were made public by a British High Court.

Those threats were conveyed by Secretary of State Hillary Clinton, the CIA, and Obama’s National Security Adviser James Jones, according to British Foreign Secretary David Miliband.

“The United States Government's position is that, if the redacted paragraphs are made public, then the United States will re-evaluate its intelligence-sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence it provided,” the High Court wrote in a ruling in February when it agreed to keep the paragraphs blacked out.

“There is a real risk, if we restored the redacted paragraphs, the United States Government, by its review of the shared intelligence arrangements, could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains.”

After the High Court’s ruling, the Obama White House issued a statement thanking the British government “for its continued commitment to protect sensitive national security information” and added that the order would "preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens.”

Following the High Court’s reversal, the New York Times published a sharply worded editorial criticizing the Obama administration’s hard-line position in the Mohamed case.

“The Obama administration has clung for so long to the Bush administration’s expansive claims of national security and executive power that it is in danger of turning President George W. Bush’s cover-up of abuses committed in the name of fighting terrorism into President Barack Obama’s cover-up,” the Times wrote.

Torture Photos

Obama also reversed a commitment earlier this year to release photos of US soldiers torturing and abusing prisoners in Iraq and Afghanistan.

Obama said his decision stemmed from his personal review of the photos and his concern that their release would endanger American soldiers in the field, but the reversal also came after several weeks of Republican and right-wing media attacks on him as weak on national security.

The Obama administration then appealed to the US Supreme Court to overturn a federal court order requiring release of the images, and Obama’s aides worked with Congress to pass legislation giving the Defense Secretary the power to keep the photographs under wraps.

The legislation passed in November and was promptly signed by Obama. By blocking release of the photographs, Obama essentially killed any meaningful chance of opening the door to an investigation or independent inquiry of senior Pentagon and Bush administration officials who implemented the policies that led to the abuses captured in the images.

In a conference call with reporters on Thursday, the ACLU also questioned the value of Obama’s much-touted executive order – signed on his second day in office – demanding a shift away from excessive secrecy toward a presumption in favor of open government.

“We have not seen the presumption translated into the release of more information,” Jaffer said. “There are several cases which we are just at a loss to understand why the information we are requesting is still being withheld.”

Those documents include ones related to the Bush administration’s warrantless wiretapping program and transcripts of Combatant Status Review Tribunals where detainees “describe the abuse they suffered at the hands of their CIA interrogators.”

However, the ACLU’s Freedom of Information lawsuit continues to unearth bits of new evidence. For instance, the ACLU obtained hundreds of new documents, including a one-page questionnaire apparently from the Justice Department’s Office of Legal Counsel to the CIA.

“How close is each technique to the ‘rack and screw’?” the questionnaire asked, referring to a medieval torture device.

“Anytime you need to ask a question like that it is deeply disturbing and shows you’ve strayed from constitutional norms,” said ACLU legal fellow Alex Abdo. “You’re asking a question as to whether the conduct you’re about to authorize relates to rack and screw and that in and of itself should be evidence enough that you’re going too far. It never should get to that point.”

Other newly disclosed documents show that the Bush White House was deeply involved in discussions about destroying 92 torture videotapes.

Obama and Congress

Perhaps, Obama’s most positive act on behalf of open government came in April when he resisted pressure from the CIA and ordered the release of legal memorandums written by lawyers in Bush’s Office of Legal Counsel, including Yoo and two former OLC chiefs, Jay Bybee and Steven Bradbury.

The memos used creative definitions regarding torture to authorize the CIA to apply a variety of torture techniques to so-called “high-value” prisoners, including beatings, waterboarding, sleep deprivation, placing insects inside a confinement box to induce fear, exposing naked detainees to extreme heat and cold, and shackling prisoners to the ceilings of their prison cells or in other painful “stress positions.”

In the face of this evidence, Senate Judiciary Committee Chairman Patrick Leahy and his counterpart in the House, John Conyers, floated competing proposals early in the year for a 9/11-style “truth commission” or a blue-ribbon investigative panel to look into the circumstances that led the Bush administration to create its policy of torture.

Obama signaled that he was open to the idea of a “truth commission” but he said he was concerned "about this getting so politicized that we cannot function effectively, and it hampers our ability to carry out critical national security operations."

After Republicans and neoconservative opinion writers went on the attack, Obama quickly retreated, calling lawmakers to the White House for a closed-door meeting in late April to talk them out of the idea of moving forward with independent investigations or even oversight hearings into the Bush administration’s use of torture.

Underscoring Obama’s concerns about a high-profile investigation, White House press secretary Robert Gibbs told reporters at the time: "the President determined the concept didn't seem altogether workable in this case."

Gibbs added, "The last few days might be evidence of why something like this might just become a political back and forth.”

Hoping for bipartisanship on pressing issues like the economy and health care, Democrats scuttled the investigative plans. However, Republicans have shown no reciprocal interest in bipartisanship, voting as a virtual bloc against every significant bill that Obama and the Democrats have proposed.

Despite Obama’s insistence of “looking forward, not backward,” there remains a chance that hearings on Bush’s torture practices might still be held next year.

Leahy and Conyers have indicated they intend to hold hearings next year once a long-awaited report by the Justice Department’s Office of Professional Responsibility (OPR) is released that delves into Yoo, Bybee, and Bradbury’s legal work surrounding torture, according to Christopher Anders, the ACLU’s senior legislative counsel.

Leahy and Conyers “said a number of times that they would have hearings when the OPR report comes out,” Anders said in an interview. “It would be a big surprise if they didn’t conduct hearings. We fully expect them to hold hearings.”

Spokespeople for Conyers and Leahy did not return calls or respond to e-mails seeking comment.

Upcoming Hearings on Torture?

However, according to Christopher Anders, the ACLU’s senior legislative counsel, Leahy and Conyers have both said they intend to hold hearings next year once a long-awaited report by the Justice Department’s Office of Professional Responsibility (OPR) is released that delves into Yoo, Bybee and Bradbury’s legal work surrounding torture.

Leahy and Conyers "said a number of times that they would have hearings when the OPR report comes out," Anders said in an interview. "It would be a big surprise if they didn’t conduct hearings. We fully expect them to hold hearings."

Anders added that while there is a time and place for independent commissions, the issue of torture is really a matter for Congress to probe.

"These are the hard issues that Congress should really be tackling" Anders said. "It’s squarely under their jurisdiction."

Spokespeople for Conyers and Leahy did not return calls or respond to e-mails seeking comment.

The ACLU said that as much as the Obama administration may hope that additional revelations related to the Bush administration’s policy of torture will slip underneath the radar, numerous documents expected to be released in the weeks and months ahead will ensure the issue remains front and center for years to come, and calls for accountability will continue.

"The lesson that this is giving to the rest of the world is that countries do not have to be accountable for their actions even when torture and abuse occurs," the ACLU’s Anders said.

"That's going to make it much more difficult for the United States to push other countries on human rights issues across the board, and it's going to make it much easier for other countries to shirk their own duties to bring accountability for their own actions in the past."

Despite Obama’s spotty record on the war crimes that grew out of the Bush’s “war on terror,” the President still focused his Nobel Peace Prize acceptance speech on the altruism of US foreign policy and America’s commitment to upholding human rights.

The ACLU's Jaffer said there is "an obvious tension on what the president is saying on the commitment to human rights and the work we’re doing here in the United States to actually hold people accountable for the violations of both domestic and international law."

"A lot of what was authorized by senior Bush administration officials was illegal not only under international law but domestic law as well," Jaffer said. “Many of the methods that were approved by CIA and [Department of Defense] interrogators had previously been described by multiple US administrations as war crimes and some of them have been prosecuted as war crimes.

"Waterboarding in particular is something that has been prosecuted as a war crime before September 11. And yet we are not holding people accountable for having used those techniques, authorized those techniques. Increasingly, we’re frustrated by the gap between the Obama administration’s rhetoric on accountability and reality. We see the Obama administration actively obstructing accountability on every front."