DOJ Has Blocked Everyone In The Executive Branch From Reading The Senate's Torture Report

from the this-is-ridiculous dept

Wed, Nov 11th 2015 3:24am — Mike Masnick

A year ago, we were writing a ton on the famed Senate Intelligence Committee's torture report. This report, which Committee staffers spent years on, cost $40 million, and clocked in at nearly 7,000 pages of detailed analysis of the US's hugely questionable (both morally and legally) torture program in the wake of 9/11. After much fighting, the Senate finally released a heavily redacted executive summary, but since then there have been some questions about what happens with the full report. Senator Dianne Feinstein, who was (believe it or not!) the driving force behind the report, had copies of the full report delivered to the Defense Department, the CIA, the State Department and the Justice Department. However, there has been a lot of confusion over whether or not anyone actually read it. The DOJ clearly announced that officials had read the whole thing... but later claimed that no one had even opened the report. Obviously, the DOJ lied with one of those statements.

There had been some hope that ex-Senator Mark Udall might choose to release some of it from the Senate floor before leaving office, but that didn't happen.

And, with the changing of the guard, the new head of the Senate Intelligence Committee, Richard Burr, demanded that all the federal government agencies that received the report should return it to him so he can destroy it and make sure that no one ever sees what's in the report. As we noted, however, this whole thing seemed to be an effort to state publicly that the document was a Congressional record. That matters because Congressional records are not subject to FOIA requests. Executive branch records are subject to FOIA requests -- and the ACLU has made a FOIA request to the exec branch for a copy of the report.

The DOJ has taken Burr's lead and claimed that the report is a Congressional record, and that's also why they insist that no one at the DOJ has opened it -- to maintain that it has not become an executive branch record subject to FOIA. Not surprisingly, Senator Feinstein is pissed off about this -- because her staffers spent years putting together this report, detailing massive abuses by the CIA and others in torturing people, and the whole point of it was to help the government learn how badly it messed up and to stop it from doing it again. But if no one reads it, then that won't happen. And, the DOJ now says that not only has it not read it, it has instructed everyone in the exec branch not to read it for fear that reading it would make it subject to FOIA:

Nearly a year after the Senate released a declassified 500-page summary of the report, the fate of the entire document remains in limbo, the subject of battles in the courts and in Congress. Until those disputes are resolved, the Justice Department has prohibited officials from the government agencies that possess it from even opening the report, effectively keeping the people in charge of America’s counterterrorism future from reading about its past. There is also the possibility that the documents could remain locked in a Senate vault for good.

Senator Feinstein (along with Senator Pat Leahy) has sent a rather angry letter (reasonably so!) to Attorney General Loretta Lynch, expressing her strong displeasure over this state of affairs:

Dear Attorney General Lynch and Director Comey:

We firmly believe that appropriate DOJ and FBI officials must read the full 6,700-page Senate Intelligence Committee Study of the CIA's Detention and Interrogation Program in order to understand what happened and draw appropriate lessons. This is exactly what Director Comey promised during his testimony before the Senate Appropriations Committee on March 12, 2015, when he said he would designate FBI officials to read the full, final version of the Committee's Study and consider the lessons that can be learned from it. Director Comey also acknowledged that former FBI Director Bob Mueller ordered FBI agents not to participate in the CIA program. Unfortunately, as the executive summary of the Study makes clear, the Department of Justice was among those parts of the Executive Branch that were misled about the program, and DOJ officials' understanding of this history is critical to its institutional role going forward.

We are gravely disappointed that, according to Assistant Attorney General Peter Kadzik's letter dated August 5, 2015, the Department of Justice is citing a Freedom of Information Act (FOIA) case, ACLU v. CIA as an excuse to refuse to allow Executive Branch officials to review the full and final Study. This DOJ decision prevents the FBI and other parts of the Executive Branch from reading the full 6,700-page Study and learning from the mistakes of the past to ensure that they are not repeated. Further, personnel at the National Archives and Records Administration have stated that, based on guidance from the Department of Justice, they will not respond to questions about whether the Study constitutes a federal record under the Federal Records Act because the FOIA case is pending.

The record in the FOIA case does not support DOJ's decision. According to the court filings in the FOIA case, DOJ represented that it would "preserve the status quo" pending appeal, but the context in which that commitment arose makes clear that DOJ was agreeing not to return the Study to the Senate Intelligence Committee. DOJ's commitment not to return the Study while the FOIA litigation is pending in no way precludes appropriately cleared individuals in the Executive Branch from reading the Study. We urge that you reconsider your position and disseminate the full and final Committee Study to appropriately cleared senior individuals in the Department of Justice and FBI, and instruct other appropriate federal departments to take the same position. For the same reason, we urge you to explicitly commit to retaining copies of the full 6,700-page Study.

We hope you agree that the legacy of this historic report cannot be buried in the back of a handful of Executive Branch safes, never to be reviewed by those who most need to learn from it. We look forward to hearing from you on this important issue.

The DOJ's argument that it has to block anyone from reading the document, lest it magically switch from a Congressional document to an executive branch one is apparently puzzling to experts.

“It’s quite bizarre, and I cannot think of a precedent,” said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. He said there are any number of classified Senate documents that are shared with intelligence agencies and remain as Congressional records, even if they are read by members of the executive branch.

But it's not at all bizarre when put into the simple context of recognizing that this administration has bent over backwards refusing to look back on the nature of what the CIA did and whether or not it violated the law or international agreements on torture (or basic morality). This is just another way to avoid facing up to the mistakes of the past, and conveniently using a FOIA lawsuit as a method for making sure this information remains in the dark.

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Filed Under: dianne feinstein, doj, foia, loretta lynch, richard burr, senate intelligence committee, torture report

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David, 11 Nov 2015 @ 3:32am

These days, Dr Mengele would be living in the U.S.A.
No need to flee to Argentina and remain dormant: he could have continued his job under governmental protection in the U.S.A.
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OnTheWaterfront, 11 Nov 2015 @ 4:16am

Re: These days, Dr Mengele would be living in the U.S.A.
He really didn't need to flee the US would have given him immunity in return for his data, just like the Japanese Unit 731.
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Anonymous Coward, 11 Nov 2015 @ 4:21am

WHOT ?!?!

torture is legal ?!?!

So the US citizens are free as in: "you- are- free BUT WE WILL TORTURE YOU" kind of freedom.

https://www.techdirt.com/articles/20151025/09565232619/court-your-fourth-fifth-amendment-rig hts-no-longer-exist-if-you-leave-country.shtml
ah oh! ok then
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Anonymous Coward, 11 Nov 2015 @ 4:21am

Re: Re: These days, Dr Mengele would be living in the U.S.A.
was he on the paperclip program or not?
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Anonymous Coward, 11 Nov 2015 @ 4:41am

This report needs to be Snowden'd
Yes, I just turned the man's name into a verb.
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Anonymous Coward, 11 Nov 2015 @ 4:59am

Re: These days, Dr Mengele would be living in the U.S.A.
mengele would have emigrated here antebellum because hitler wouldn't let him do some of the things he wanted to do to people.
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Anonymous Coward, 11 Nov 2015 @ 5:00am

Re:
Yes - "freedom", as in you are free to do as told and nothing more under threat of violence.
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Anonymous Coward, 11 Nov 2015 @ 5:02am

(secret) presidential pardon
"this administration has bent over backwards refusing to look back on the nature of what the CIA did and whether or not it violated the law or international agreements on torture (or basic morality)"

It would indeed seem like some kind of secret backroom deal was made, kind of like a pardon in everything but name. President Ford took much political heat for his official pardon of Richard Nixon. Obama is playing the game much smarter, by granting no pardons, but vigorously opposing any investigations and stymieing any process of justice, all the while giving lame excuses as to why this Most Transparent Administration in History® engages in such stubborn stonewalling -- if not outright coverups -- while waging scorched-earth warfare against leakers who expose Obama's sleight-of-hand.

It's a presidential pardon in everything but name. But unlike the Nixon pardon, which did not extend to Nixon's criminal conspirators (many of whom went to jail), Obama's *secret* pardon of the previous administration, with its long trail of blatant criminality, apparently extends from top to bottom.
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Quiet Lurcker, 11 Nov 2015 @ 5:04am

So tell me, Comrade Assistant Attorney General. What are you trying to hide?
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Anonymous Coward, 11 Nov 2015 @ 5:11am

Re: This report needs to be Snowden'd
You must be British. Only place in the world where you can 'Hoover' a carpet with a Dyson.
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Anonymous Coward, 11 Nov 2015 @ 5:31am

My votes this next election will be dictated by who gets this report released.
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That One Guy (profile), 11 Nov 2015 @ 5:32am

Re: (secret) presidential pardon
Quite. It's a revolting, reprehensible tactic, but it is effective at dodging the issue.

If he allowed the matter to be investigated by non-involved parties it could cause some awkward moments for some very powerful people, up to and including a former US president, and at that point he'd be forced to either defend not just generalities 'The USG ordered torture', but specifics 'The USG tortured these people, and this is how', or condemn the actions, and those that carried them out, something that would likely lead to some hefty political backlash from those affected trying to return the favor.

By instead stonewalling everything, and doing everything to keep things buried, he gets to pretend that nothing happened, and it's not his problem to deal with. Let the next sod clean up the mess(or more likely ignore it as well), he's not touching it.

It's a tactic that revolting, reprehensible and vile, but as far as covering his own ass, quite effective.
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Anonymous Coward, 11 Nov 2015 @ 5:34am

Our leaders committed crimes so awful, that they are now burying the truth. Maybe it is time to step up our show of dissatisfaction. Legal maneuvers don't seem to serve any purpose anymore.
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That One Guy (profile), 11 Nov 2015 @ 5:35am

Re:
Have fun staying at home come election day then, none of them will touch it. They might lie and claim that they will, but I can guarantee you that whoever gets the office will continue the 'What report?'/'That's classified' game, as none of them want the kinds of enemies they'd make by releasing the report.
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jim, 11 Nov 2015 @ 6:04am

Re: (secret) presidential pardon
Many of those pardoned and now work for the same news organization that murdoc supports.
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mcinsand, 11 Nov 2015 @ 6:39am

verbalized brand names
>>Only place in the world you can 'Hoover' a carpet with a
>>Dyson.

You mean to say that you've never Xeroxed a paper with a Canon or a Sharp?
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mcinsand, 11 Nov 2015 @ 6:41am

Remember what they tell us!
As they keep telling us when Hoovering* our personal data; if they've done nothing wrong, then they've nothing to hide.

*Proud reference to a different comment sub-thread.
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Mason Wheeler (profile), 11 Nov 2015 @ 6:52am

Re: verbalized brand names
Xerox isn't a person's name; it's a brand-ified version of "xerography," the technology behind a certain style of photocopier.
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Anonymous Coward, 11 Nov 2015 @ 7:10am

this administration is so transparent
transparent as a blizzard white-out
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kallethen, 11 Nov 2015 @ 7:33am

It's like we're back in grade school
Seriously. They are sticking their fingers in their ears and yelling, "LA LA LA LA LA LA LA!" at the top of their lungs.
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Anonymous Coward, 11 Nov 2015 @ 8:37am

Leak it
Situations like this show the value of wikileaks-style dumps.
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Roger Strong (profile), 11 Nov 2015 @ 9:32am

"Let me see if I understand: you're not that bothered by torture, but are horrified by the practice of keeping email on the wrong server."
- Kevin Underhill on Twitter
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JoeCool (profile), 11 Nov 2015 @ 9:59am

Re:
That's because if the email is on the wrong server, the plebes might actually find out stuff they're not allowed to know. It's the exact same mind-set, so it's perfectly consistent. Horribly wrong, but consistent.
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Anonymous Coward, 11 Nov 2015 @ 10:16am

Re: Re: (secret) presidential pardon
just generalities 'The USG ordered torture', but specifics 'The USG tortured these people, and this is how'
I still don't understand how the phrase "we tortured some folks," uttered by the president in a prepared speech isn't binding in any way whatsoever. "I misspoke" doesn't really hold up, since he wasn't speaking off the cuff. He can't dodge it with an "under this program," since it's the same admission for any program. What, could he claim it was just a colloquialism, like that ol' regional idiom "yes, we nerve gassed a bunch of orphans"? Is "folks" secretly just a synonym for "analogies"?

That admission aside, we have the weirdness of the president himself (who just might happen to be part of the executive branch) not having read a single word of a $40m report that may or may not provide evidence of war crimes. That's a claim of slack that would make Bob Dobbs jealous.
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Anonymous Coward, 11 Nov 2015 @ 10:26am

"Senator Feinstein... has sent a rather angry letter (reasonably so!)..."

You say that as if Feistein isn't in on it. As most of us have realized, she's simply trying to make it "look good".
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Anonymous Coward, 11 Nov 2015 @ 10:57am

Re:
I prefer to give her the benefit of the doubt, and assume that she's just a super-humanly narcissistic hypocrite.
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Uriel-238 (profile), 11 Nov 2015 @ 11:37am

Re: Re: Re: These days, Dr Mengele would be living in the U.S.A.
Nah. Mengele went to Brazil. Died a free man in his seventies.

It's a noteworthy counterpoint to the just world hypothesis.
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Anonymous Coward, 11 Nov 2015 @ 11:41am

Re: Re:
Let's not forget that the "9/11 Commission Report" was a whitewash put out by mostly-loyal Bush appointees, who were given a highly limited scope (ordered not to dare look behind the curtain) carefully crafted to steer clear of Bush's and Giuliani's gross negligence, while the commission itself was stripped of any subpoena power that would require stonewalling officials to cough up documents and force sworn depositions within the highly-limited time frame that the commission was allowed to draw up the report. In short, the 9/11 Commission Report was a sham investigation that was set up to fail from the very start, in virtually every possible way.

Feinstein's Torture Report might be a similarly impotent soft-glove approach to investigation -- which we may never know since it's (still) secret.
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Uriel-238 (profile), 11 Nov 2015 @ 11:43am

DON'T DO THIS THING IT WILL EXPOSE US TO ACCOUNTABILITY!
Wow, they're not even trying to hide it anymore.
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Uriel-238 (profile), 11 Nov 2015 @ 11:49am

My fear is not merely that we may repeat those mistakes
It's that we're continuing to repeat them as before.

There are still certain camps within Camp Delta to which you really don't want to be assigned.

They're all special for the US's non-compliant guests.
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Anonymous Coward, 11 Nov 2015 @ 11:57am

Must Use Black Ink
We wouldn't want the people to know what was done in their name on their behalf.
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Derek Kerton (profile), 11 Nov 2015 @ 12:01pm

Re: This report needs to be Snowden'd
This report needs to be Snowden'd
Yes, I just turned the man's name into a verb.

-- And with the shrewd use of the apostrophe d
-- thou hast done so with Shakespearean glee.
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Anonymous Coward, 11 Nov 2015 @ 12:14pm

Re:
"wrong server"

Way to minimize! Go Hitlerry 2016!
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Uriel-238 (profile), 11 Nov 2015 @ 12:43pm

Unnecessary godwin
Association with Hitler is redundant.

Any person in the Oval Office will be a tyrant. I don't think it's feasible for someone to not be.

Contrast what Obama said while campaigning and what he's done in the White House.

Expect that degree of transformation in our next President.

Heh. N. E. CANDIDATE Not what you'd expect!
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Roger Strong (profile), 11 Nov 2015 @ 1:06pm

Re: Re:
"Minimize?" The only thing minimized is talk about why it standard practice for BOTH parties.

It was standard practice for the previous administration. Eighty-eight White House staffers - Bush II, Karl Rove and the rest - instead used a private email server belonging to the Republican National Committee. Much of that email went missing.

Jeb Bush, while governor, also used a private email address on his own private server. (This can help protect emails from subpoenas and other legal actions.) Perhaps the only reason you don't hear about the other leading Republican candidates doing the same while in office is that they've never been in office.
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Anonymous Coward, 11 Nov 2015 @ 1:09pm

Re: Re: Re:
Yep, my earlier comment was just a cheap joke... I can't imagine or guess how much real effort was put into the TR over the years, but I would wager that Feinstein's spats and "battles" with Brennan were planned and choreographed to make them both look a little good and a little bad... and to help public interest in the Report dry up quickly thanks to the distraction and tedium.

Honestly, the US Government put a damn High-Pressure Rectal Hummus Cannon into active service, and almost no one even remembers or cares.
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Anonymous Coward, 11 Nov 2015 @ 1:09pm

Re: These days, Dr Mengele would be living in the U.S.A.
Mengele would probably seem like a nice guy compared to whatever I'm guessing the CIA is doing deep in some black site.
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Anonymous Coward, 11 Nov 2015 @ 2:00pm

Re: (secret) presidential pardon
http://www.nytimes.com/2014/12/09/opinion/pardon-bush-and-those-who-tortured.html

The day before the torture report was released, Anthony D. Romero - executive director of the ACLU - published an important op-ed in the NY Times where called for Obama to pardon Bush and the other torturers. This seems like an unusual goal for the head of the ACLU to make, but I suspect he was thinking about this exact problem of a "stealth pardon". He says as much in the op-ed:
What is the difference between this — essentially granting tacit pardons for torture — and formally pardoning those who authorized torture? In both cases, those who tortured avoid accountability.

But with the tacit pardons, the president leaves open the very real possibility that officials will resurrect the torture policies in the future.
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Pronounce (profile), 11 Nov 2015 @ 3:08pm

From the "I Could Tell You, But Then I'd Have to Kill You" file
Maybe they should classify the reading of the Feinstein torture report as threat to national security and subject the reader to immediate incarceration or the death penalty.
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Personanongrata, 11 Nov 2015 @ 3:32pm

Power Concedes Nothing Without A Demand*
But it's not at all bizarre when put into the simple context of recognizing that this administration has bent over backwards refusing to look back on the nature of what the CIA did and whether or not it violated the law or international agreements on torture (or basic morality).

The indelible stain of torture didn't simply splash the CIA by chance. The entire sordid tale begins in the highest echelons of the Bush (war criminal) administration when attorney John Yoo (war criminal) of the DOJ's (HAHA) Office of Legal Counsel authored (signed off by Jay Bybee (war criminal) a memorandum titled: Standards of Conduct for Interrogation (aka "torture memo") to Alberto Gonzales (war criminal), in his capacity as Counsel to the President. This memorandum became the specious impetus for the US governments use of most recent use of torture.

There is plenty of evidence available in the public domain that could be used to hold these fraction of a human war criminals accountable. The only thing that is lacking is the will to make it happen.

http://nsarchive.gwu.edu/torturingdemocracy/documents/20020801-1.pdf

* “Power concedes nothing without demand. It never has and never will. Show me the exact amount of wrong and injustices that are visited upon a person and I will show you the exact amount of words endured by these people.” ~ Frederick Douglass
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Anonymous Coward, 11 Nov 2015 @ 4:16pm

Re: Re: Re:
"Wrong server" could be the one sitting next to the correct one in a government data center. It was not just the wrong server. It was a privately owned and operated server in a private residence ie wrong server in a wrong facility operated by the wrong organization. That isn't an IT whoops but a deliberate act.

Previous administration was terrible so was Bill Clinton. Jeb would just be deja vu as would Hillary.
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That One Guy (profile), 11 Nov 2015 @ 7:13pm

Re: Re: Re: (secret) presidential pardon
It doesn't matter if it was binding or not, given there's no-one willing to charge not one but two US presidents with engaging in and covering up torture conducted, and 'unofficially' condoned by, the USG.

There's no enough money in the US Treasury to pay any of the government agencies to investigate something that big, and that bad, and even if they tried you can be sure that every other agency would close up ranks and stonewall until the sun went super-nova.
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Anonymous Coward, 11 Nov 2015 @ 7:21pm

The Executive Branch appears to be complicit in covering up torture crimes. How am I supposed to have respect for the law when our country is run by criminals who aid and abet torturers?
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Roger Strong (profile), 11 Nov 2015 @ 8:29pm

Re: Re: Re: Re:
Again, the previous Republican administration was also keeping their email on privately owned and operated servers, off-site. Jeb's was privately owned and operated, apparently on-site, but then taken off-site.

Again, the real question is why this was standard practice for BOTH parties. It's unlikely that the current Republican front-runners wouldn't have done the same.

Yes, it's wrong. But it's yet another of the endless cases of Republicans having sanctimonious hissy fits over Democrats following established Republican policy.
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Anonymous Coward, 11 Nov 2015 @ 8:45pm

Re: Re: Re: Re: Re:
So let's not minimize at all for anyone regardless of party. Nor elect to accept that behavior. Additionally they should all be prosecuted for any wrongdoings the same as us peasants would be.

We can't keep putting more of the same kinds of people in office and expect different results. That's insanity defined.
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Anonymous Coward, 12 Nov 2015 @ 5:03am

Meet the new boss, the same as the old boss
They are all complicit in this. Every administration is essentially a continuation of the prior administration with some minor policy changes for us peasants. Obama needs to let this slide so that the next Pres, who might be a Republican, will let his stuff slide. Might explain why the Republican congress has given Obama everything he has asked for lately.
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Anonymous Coward, 12 Nov 2015 @ 5:03am

Meet the new boss, the same as the old boss
They are all complicit in this. Every administration is essentially a continuation of the prior administration with some minor policy changes for us peasants. Obama needs to let this slide so that the next Pres, who might be a Republican, will let his stuff slide. Might explain why the Republican congress has given Obama everything he has asked for lately.
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ScytheNoire, 12 Nov 2015 @ 8:11am

Ignorance is bliss.

They are going for plausible deniability.
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Anonymous Coward, 12 Nov 2015 @ 8:42am

Re: Re: Re: Re: (secret) presidential pardon
I'm gonna go off on a bit of a tangent here, and blame Ed Snowden for this (stay with me). Ten years ago, had W. said it, at least some token punitive actions would have been taken due to international pressures. Scapegoats would have been found, butchered, roasted, and eaten. Despite the Five Eyes style fuckery already being in place, there was at least the need to keep up appearances.

Now? The NZ and Australian governments are xenophobic paranoiacs, Canada's burns books and censors scientists, and the UK's is literally implementing thought-crime laws. Germany 'hates' the NSA but hosts their biggest electronic ear, France is defending European freedom by jailing people who say rude things, and Spain made it illegal to criticize the police or hold protests without getting permission from the people you're protesting against.

Snowden unintentionally gave the West's governments permission to transition from giving a fraction of a fuck to giving Zero Fucks (TM).
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John Fenderson (profile), 12 Nov 2015 @ 9:44am

Re: Re: Re: Re: Re: (secret) presidential pardon
Remember, kids, ignorance is strength!
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Anonymous Coward, 12 Nov 2015 @ 11:57am

Re: Re: Re: Re: Re: Re: (secret) presidential pardon
Just in case I wandered into Poe-etry with my prose, I'll mention that I'm not really blaming Snowden for anything. I just find it funny (in the ironic, makes you want to lobotomize yourself with a spork way) that a little more justice might get meted out by our governments if we knew less about how full-on evil they are. They no longer bother to engage in any CYA tactics.
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nasch (profile), 16 Nov 2015 @ 5:07pm

This is exactly what Director Comey promised during his testimony before the Senate Appropriations Committee on March 12, 2015, when he said he would designate FBI officials to read the full, final version of the Committee's Study and consider the lessons that can be learned from it.

Now she knows how it feels when a politician tells her he'll do one thing and then does the opposite.
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