Waterboarding Is Fair Game

by emptywheel

I'm pooped so will have to return to this article. It explains how, after DOJ under Jack Goldsmith threw out John Yoo's torture policies, Steven Bradbury came in and replaced them with still worse opinions.

When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.

Later that year, as Congress moved toward outlawing “cruel, inhuman and degrading” treatment, the Justice Department issued another secret opinion, one most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard.

I will return to this, probably Friday (I've got my timeline buzz going). But for now, I wanted to point out that the story reads like several different stories (which may party arise from having three authors). First is a story about Steven Bradbury, which sure reads like someone wants to discredit Bradbury for good; perhaps Bush is preparing to re-appoint him to be head of OLC? Another of the stories appears to be about Comey's allies, fighting against these policies after his departure. And the last appears to be a legal chronology of what was on and off legal in our world of torture.

There are some interesting competing leak wars going on right now. I wonder why?

Comments

[John Forde]

OOoooo!

I can't wait till Friday!

[sailmaker]

"There are some interesting competing leak wars going on right now. I wonder why?"

Maybe somebody wants to prime the questioning for Michael Mukasey's confirmation hearings? Just a thought. Maybe even a wider audience, the up coming elections.

The revelation of yet another secret torture memo after Goldsmith left, and the vere to the right in reopening the gulag after that 'wimp' Comey left are horrifying. Why is this being leaked? Somebody(ies) must feel very safe from retaliation, or they are very principled. Interesting that Addington (and the unspoken Cheney) seems to be a prime target with Bradbury as a secondary, the stooge/tool.

[Mad Dogs]

One source might be Senate staffers for the Judiciary Committee in preparation for the Mukasey hearing for Attorney General.

Senator Pat Leahy had that long list of questions he wanted Mukasey to answer (from his website at http://leahy.senate.gov/press/200710/100307a.html ) and perhaps these are germane:

"What will you do to ensure that legal advice from the Department’s Office of Legal Counsel (OLC) is independent and protected from political influence?"

and

"For example, do you believe that the President has authority to override legal requirements and immunize acts of torture contrary to our treaty obligations and laws?"

[sailmaker]

Looking that the quoted sources for the article

Philip Zelikow - former State dept (worked with Condi and on the 9/11 report)
Charles J. Cooper - ex OLC
Scott Horton - attorney with Human Rights First
Mr. Kmiec - former Office of Legal Counsel
John D. Hutson - former Navy top lawyer
CIA detention operation govenors
Indirectly - James Comey

Current and former officials - "More than two dozen current and former officials involved in counterterrorism were interviewed over the past three months about the opinions and the deliberations on interrogation policy. Most officials would speak only on the condition of anonymity because of the secrecy of the documents and the C.I.A. detention operations they govern." Emphasis mine.

State and Pentagon sources along with more than two dozen officials. That is a pretty well orchestrated leak. More like a flood. Maybe it is good enough to clean out the DoJ. Maybe these are the people who threatened to quit when Bush/Cheney/Card/Gonzales tried to get Ashcroft to sign the docs that Comey would not sign.

[Mary]

Horton and Comey are bound to have overlapping circles and some of the same people and Horton may have been used as a funnel to get word out that Comey did remember to tsk.

Not loud enough so that any word got out before elections or so soon that Congress might conceivably react to Gonzales' lies in nomination that he so quickly reneged on - - but still, let the record show, there was a tsk.

I thought this part was interesting:

In any case, the White House grew comfortable with Mr. Bradbury’s approach. He helped block the appointment of a liberal Ivy League law professor to a career post in the Office of Legal Counsel. And he signed the opinion approving combined interrogation techniques.

Did he? And how was that done?

[Mary]

BTW - Kmiec, in lieu of anyone with real crediblity, is one of the guys the Republicans have called in for hearings on things like GITMO detentions and procedures as the Pro Exec Power guy. The fact that he's getting queasy at the association and trying to prove his own independence says something.

[sailmaker]

"More than two dozen current and former officials involved in counterterrorism were interviewed over the past three months . . ."

Three months. What happened 3 months ago? Could this July 20th EO have started the reporters gathering reactions? Executive Order: Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency
http://www.whitehouse.gov/news/releases/2007/07/20070720-4.html

I am not a lawyer, but I can see that 'unlawful enemy combatants' do not get the third Geneva Convention treatment, the Decider gets to interpret the meaning and application of the Geneva Conventions and I'll leave the rest to lawyers to munch upon.

[sailmaker]

Mary,
JB at Balkinization has a post up on Torture Memo 2.0
http://balkin.blogspot.com/
One money quote,
" He (ed. Bradbury) signed the secret Torture Memo 2.0. And then he wrote another secret memo, Torture Memo 3.0, which held that the recently passed Detainee Treatment Act-- which banned cruel, inhuman and degrading treatment-- did not affect the CIA's practices one bit."

Somebody, as EW says, wants to bury Bradbury.

[bmaz]

I can't see as how this is not the product of several sources in addition to the multiple authors EW noted. Goldsmith is sure working overtime to rebirth himself as an "American hero" of his own delusion; I wonder if he is not a part of the mix here.

[bmaz]

"He helped block the appointment of a liberal Ivy League law professor to a career post in the Office of Legal Counsel." that line caught my attention as well. As the basis is implied to be because the chap was a "liberal", is Scott Bloch investigating"? Or is bloch still dead in the water (while our vaunted Democratic Leadersheep sit on their freaking thumbs) because he has NO FUNDS with which to pursue any of his investigations? Did Bradbury work in conjunction with Goodling? Sampson? Rove? Gonzales? Miers? Addington? Cheney? This is a fascinating little tidbit I would like to know much more about; in addition to the torture facts, of course.

[drational]

bmaz,
I know that many want to hang Goldsmith out to dry for a multitude of good reasons.

But he was the one who insisted Comey get read in to the warrantless wiretap program, and he is the one who's analysis was responsible for finding the Program to be "without legal basis".
He is one of the ones Comey named as prepared to resign if the Program was not changed.
He is the one who withdrew the Bybee/Yoo memo, leaving all the CIA agents who had followed it legally high and dry. And he resigned to make it stick.
And he has given us some superfluous Addington doozies: Blood on your hands, one bomb away.

Though flawed, he, along with Comey and Philbin, is the closest thing to a hero we are likely to see slip through the cracks into this Administration.

[emptywheel]

thanks for the comments, folks--those are precisely the kind of things I was looking at.

As I see it, you've got the following collections of sources:

Risen: CIA and other intell
Lichtblau: DOJ (almost certainly the "one degree removed from Comey" sources)
Johnston: Often the recipient of White House bureaucratic instruggle leaks (see also his "scoop" that Ted Olson was going to be nominated AG)

So I could imagine that Risen and Lichtblau kept reporting on the torture EO, as sailmaker suggests, and that in their research about this found out about the prior memos (CIA and DOJ would both have had to know, eventually).

Then what role was Johnston playing? With the Zelikow mention, I'm wondering if he's doing some rent-a-leaking, seeing as how State opposed the torture EO.

Just a thought, though.

[lambert strether]

I think a more balanced approach would have reflected, as the story does, the administration's constant struggle to stay on the right side of the law, as demand by the carefully crafted Constitutional Theory Of We Get To Do Whatever The Fuck We Want [rimshot, laughter], otherwise known as the theory of the unitary executive...

[NC Dem]

Jack Goldsmith speaks about how Cheney and Addington continually pushed the limits by challenging the chalk line approach to surveillance and torture. No problems if they hit the chalk line of limits. No problem if it went slightly out of bounds as long as the goal was avoiding another terror attack or maintaining ever expanding executive power.
The problem with this sports analogy is that the chalk line is often out of bounds and the referee blows his whistle. When you continue to dust the chalk line, people die. This is not a game. Addington and Cheney through their secrecy and vetting of loyalist who agree with the Unitary Executive principles are now criminals. Now it is time for a review of the play on the field. I look up into the pressbox and the reviewers are sitting quietly looking into the monitor. Scalia, Roberts, and Alito look worried but they don't realize that the feed coming into the monitor has been replaced by other Cheney cohorts at the NSA. They make their ruling. They came no where near the chalk line that Cheney and Addington have now moved 3 paces to the right. More phones are tapped, more records are maintained, and the game is over. They have won.

[William Ockham]

I'd like to point folks to this organization. I just ran across them yesterday (h/t to Glenn Greenwald):

http://www.americanfreedomcampaign.org

They have a pledge:

We are Americans, and in our America we do not torture, we do not imprison people without charge or legal remedy, we do not tap people’s phones and emails without a court order, and above all we do not give any President unchecked power.

I pledge to fight to protect and defend the Constitution from assault by any President.

[Mary]

If Bradbury gets buried, it will be in "stern letters." I actually think some of this probably started in an effort to get Gonzales (more so than Bradbury) out - but as the story was held and sourced and shaped, Gonzales left and so Bradbury is the guy still there.

Sourcing -
- that professor who got blocked and/or any friends
- Scott Horton's a NY guy with hefty international law credentials and he, Comey, Fitzgerald - those guys have to have lots of overlaps. I'm thinking some of the anon sourcing may have been from him too based on things leaked to him. In this Harper's http://www.harpers.org/archive/2007/08/hbc-90000925 I wondered about his sourcing for that matter:
I first got a detailed look into the Padilla case in a meeting I had with a career prosecutor who is pretty well known as an “independent” defender of the administration. My friend had been invited, almost two years ago, to take a deep look inside of the Padilla case and provide an assessment to some senior administration figures who were fretting over what to do with a case that was rapidly turning into an embarrassment.

“I was shocked at what I saw,” my friend noted. “Because the Attorney General had leveled very heavy accusations at Padilla concerning plots for dirty bombs and the like, and there simply wasn’t any real evidence to back this up. They’ll either have to let him go, in which case the Justice Department is going to be horribly embarrassed, or they’ll gave to ginny up a case on lesser charges, some sort of conspiracy something.”

Nice to know tht ginnying up a case has more appeal than being embarassed.

Zelikow may be a source for some of the anon information as well. More so than Comey or Goldsmith, Zelikow actually made public statements about the fact that the Bush administration is NOT treating "detainees" humanely http://www.nytimes.com/2007/05/30/washington/30interrogate.html?_r=1&hp&oref=slogin
In a blistering lecture delivered last month, a former adviser to Secretary of State Condoleezza Rice called “immoral” some interrogation tactics used by the Central Intelligence Agency and the Pentagon.

I don't want to hang anyone out to dry - just to talk objectively and without rose colored glasses and misplaced hero worship about what has actually been done, vs. the story being sold.

[radiofreewill]

Anyone involved with Torture:

- from the Snatchers, Pilots, Guards and Interrogators
- to the Case Officers and their Chain of Command
- to the signers of the Torture-enabling Legal Opinions
- and the Executive Officers of Our Country
- whose Policies, Public or Secret, command Torture

Could be Hanged by a World Court, if Convicted, at anytime down the road.

And don't think All of these men and women won't get hunted down for decades like Nazi Death Camp Guards.

After Abu Ghraib, Bush the Torturer 'over-watched' the Torturees marching Saddam the Torturer to the Gallows.

Once Out of Office, the Moral Opinion of the World will be for Bush, and All His Goons, to get the same 'Justice' that he meted out when he was powerful.

The World will not give BushCo a Pass on Torture.

Comey is right - we'll all be ashamed that Torture has been done in Our Name...just like the German People who had 'heard about the Secret Camps' but were 'comfortably' far-removed from the Reality of Institutionalized Pain Infliction.

Six Million innocents later, when they saw the Reality, they were ashamed.

Bush has Hidden the Reality of his Torturing from US, but it will come out...and we will be Ashamed...even if Bush, Cheney, Addington and Gonzo have Compartmentalized it all as 'Secret.'

[phred]

It seems to me there may be lots of rats aboard HMS Bush that are scurrying around trying to find some lifeboats as the ship sinks. Months ago our friend Mary speculated that the 2004 show down was all about personal liability and people like Comey and Goldsmith not wanting to end up in the dock someday. As more of this information comes to light, I would bet there are a lot of people with legal exposure who want to be able to say (however, pathetically) that they tried to do the right thing when they got sufficiently uncomfortable (whether Comey's testimony, Goldsmith's book, or Kmiec's discomfort as noted by Mary above).

John Dean hit a breaking point and finally rolled. As a result he has been rehabilitated by society and is now considered a good guy. I'm guessing there are a lot of people trying to figure out whether they will be a Dean or a Liddy.

bmaz, as an aside thanks for the football comment a few threads below :) My time here has been limited recently (I've been lurking as best I can though), so I haven't been able to wallow in the sports nirvana I find myself in... The Pack 4-0, the Badgers ranked in the Top Ten (yeah, I know, undeservedly, I'm sure ;) and the Sox won their first game in the ALDS. With a run of good fortune like this, surely Congress will appoint a special prosecutor and myriad administration officials will finally face charges... Well, one can hope ;)

[sailmaker]

Phred -
When I think of how much Iran-Contra, nevermind Watergate got shoved under the rug and was never held up to the daylight, I worry about justice ever being done.

[cboldt]

Why now? Here's my guess -- not any better than others here. The detainee cases are reaching a head. Boumediene may be released in order to avoid an adverse SCOTUS ruling, etc.

Once the detainee stories start to come out of their own mouths, and they will, specific allegations of enhanced interrogation techniques will come out too. These leaks are a form of "inoculation," in that the interrogation technique allegations won't come out, for the first time, from specific, identifiable subjects of those techniques.

It's not so much a "leak," if it's going to come out anyway.

[phred]

sailmaker -- I agree. It's clear that Congress does not have the inclination to truly pursue this. But as cboldt notes, these stories will come out. I hope that those with the proper legal standing press charges against everyone they can. We are well and truly at the mercy of the courts now, and with the current make-up of SCOTUS, I worry greatly that in the end, no one truly responsible will be held to account.

[cboldt]

At this moment, Senator Kennedy is commenting on the NYT stor, from the floor of the Senate.

Pretty much following the script laid out in the article. He's calling for Congressional Action, and proposes a new bill, that sets out the Army Field Manual as "the limit" of techniques.

[cboldt]

Senator Kennedy's Oct 4 Statement

It just happened that Senator Kennedy had a press release that contained the text of his speech as read from the floor of the Senate. I haven't gone in search of a bill number.

[bmaz]

Wow. Even Ted Kennedy went right to some "new bill" that will be signing statemented away and disregarded? No mention of "High Crimes and Misdemeanors"? I guess the central Constitutional provision really does have no meaning at all any more. Maybe if the criminal actions and dishonesty of Cheney/Bush were framed in terms of a "blow job" we could get some action; so to speak....

[cboldt]

Found the text of the proposed bill ...

S.1943 - To establish uniform standards for interrogation ...

I think this NYT report is potentially very damaging, largely because it has the President saying one thing in public, taking what appears to be affirmative repudiation (by withdrawing the Bybee memo), then turnaround and privately resuming what he said he disparaged. As "hits" go, this one is stronger than the replacement of US Attorneys or admitting to have acquired US-international communications without a warrant.