What the New Jim Comey Torture Emails Actually Reveal

The New York Times was provided 3 extremely important internal Justice Department emails from April, 2005
(.pdf) -- all written by then-Deputy Attorney General Jim Comey --
which highlight how the Bush administration's torture techniques became
legally authorized by Bush lawyers. As Marcy Wheeler documents, the leak to the NYT
was clearly from someone eager to defend Bush lawyers by suggesting
that Comey's emails prove that all DOJ lawyers --- even those opposed
to torture -- agreed these techniques were legal, and the NYT reporters, Scott Shane and David Johnston, dutifully do the leakers' bidding by misleadingly depicting the Comey emails as vindication for Bush/Cheney (Headline: "U.S. Lawyers Agreed on the Legality of Brutal Tactic"; First Paragraph: "When
Justice Department lawyers engaged in a sharp internal debate in 2005
over brutal interrogation techniques, even some who believed that using
tough tactics was a serious mistake agreed on a basic point: the
methods themselves were legal").

I defy anyone to read Comey's 3 emails and walk away with that conclusion. Marcy has detailed many of the reasons the NYT article is so misleading,
so I want to focus on what the Comey emails actually demonstrate about
what these DOJ torture memos really are. The primary argument against
prosecutions for Bush officials who ordered torture is that DOJ lawyers
told the White House that these tactics were legal, and White House
officials therefore had the right to rely on those legal opinions.
The premise is that White House officials inquired in good faith with
the DOJ about what they could and could not do under the law, and only
ordered those tactics which the DOJ lawyers told them were legal. As
these Comey emails prove, that simply is not what happened.

The
DOJ torture-authorizing memos are perfectly analogous to the CIA's
pre-war intelligence reports about Iraq's WMDs. Bush officials justify
their pre-war statements about WMDs by pointing to the CIA's reports --
as though those reports just magically appeared on their desks from the
CIA -- when, as is well documented, Dick Cheney and friends were
continuously pressuring and cajoling the CIA to give them those threat
reports in order to justify what the attack on Iraq. That is exactly
how the DOJ torture-authorizing memos came to be: Dick Cheney,
David Addington and George Bush himself continuously exerted extreme
pressure on DOJ lawyers to produce memos authorizing them to do what
they wanted to do -- not because they were interested in knowing in
good faith what the law did and did not allow, but because they wanted
DOJ memos as cover -- legal immunity -- for the torture they had
already ordered and were continuing to order. Though one won't find
this in the NYT article, that is, far and away, the most important revelation from the Comey emails.

* * * * *

Just
read the Comey emails for yourself -- they're not long -- and you'll
see exactly how these DOJ torture memos were actually produced. The
key excerpts tell the story as clearly as can be. Comey was vehemently
opposed to a draft memo written by Acting OLC Chief Steven Bradbury -- ultimately dated May 10, 2005
(.pdf) -- that legally authorized the simultaneous, combined use of
numerous "enhanced interrogation techniques" on detainees. This memo
was crucial because these were the combined techniques that had already
been used on detainees, and -- after the prior OLC memos authorizing
those tactics were withdrawn -- the White House was desperate for legal
approval for what they had already done and what they wanted to do in
the future.

Comey begins by noting that
OLC lawyer Patrick Philbin had expressed numerous objections to the
Bradbury memo -- all of which were being ignored in the rush to give
the White House what it wanted:

Comey then noted that he, too, had "grave reservations" about the DOJ legal opinion:

Does that sound to you like there was unanimity in the DOJ about the legality of these methods?

As
a result of his objections, Comey went to Attorney General Alberto
Gonazles to urge that the memo not be approved, but Gonzales told him
that he was under extreme pressure from Dick Cheney, David
Addington, Harriet Miers -- and even Bush himself -- to get these memos
issued:

Comey urged Gonzales to stop the approval of the "combined techniques" memo, warning it would "come back to haunt him":

The
following day, Comey noted that the loyalty of DOJ lawyers lay with the
White House, not with the Justice Department, and they were thus
willing to comply with the demands of Cheney and Addington even at the expense of their duties as DOJ lawyers:

Most
revealingly, Comey described exactly what was happening with this
process: that the White House was demanding and pressuring the
issuance of these memos, but that once the torture regime became public
-- as Comey warned that it would -- White House officials would defend
themselves by heaping the blame on Gonzales and other DOJ lawyers, deceitfully pretending that they were merely following in good faith DOJ advice about what was and was not legal:

Alluding
to the extreme pressure that had previosuly been exerted by the White
House on then-AG John Aschroft to legally authorize the illegal NSA
spying program, Comey lamented that even the minimal willingness of
Ashcroft to defy White House pressure was completely lacking in the
Gonzales-led DOJ and OLC -- meaning the White House was able
to get legal authorization from the DOJ for whatever it wanted,
regardless of whether it was actually legal:

This
battle over these torture memos was occurring in preparation for a
White House Principals Meeting -- to be attended by key Bush cabinet
members -- to decide which interrogation tactics they would authorize.
As Comey notes, White House officials knew full well that what they
were authorizing and ordering were, in his words, "simply awful" -- as
illustrated by the cowardly demand from Condoleezza Rice that the
tactics not be discussed in any detail at meeting:

Comey
notes that there was a videotape of at least one of the interrogation
sessions that would ensure that the full brutality of what they
authorized would come to light -- but those videotapes, of course, were
destroyed by the CIA in an act which even the 9/11 Commission
co-Chairmen called "obstruction of justice."

Ultimately,
Comey's pleas that Gonzales block approval of these tactics were
ignored. Despite Gonzales' conveying Comey's arguments about how
history would judge what they were doing, the White House Principals --
yet again -- approved all of the torture tactics in those memos:

* * * * *

It's
worth noting that all of the officials involved in these events --
including Comey -- are right-wing ideologues appointed by George Bush.
That's why they were appointed. The fact that Comey was willing to go
along with approval of these tactics when used individually -- just as
is true of his willingness to endorse a modified version of Bush's NSA
warrantless eavesdropping program in the face of FISA -- hardly proves
that there was a good-faith basis for the view that these individual
tactics were legal.

But the real story here is obvious -- these
DOJ memos authorizing torture were anything but the by-product of
independent, good faith legal analysis. Instead, those memos -- just
like the pre-war CIA reports about The Threat of Saddam -- were coerced
by White House officials eager for bureaucratic cover for what they had
already ordered. This was done precisely so that once this all became
public, they could point to those memos and have the political and
media establishment excuse what they did ("Oh, they only did what they
DOJ told them was legal"). That is the critical point proven by the
Comey emails, and it is completely obscured by the NYT
article, which instead trumpets the opposite point ("Unanimity at DOJ
that these tactics were legal") because that's the story their leakers
wanted them to promote.

What's most ironic about what the NYT did here is that on the very same day this article appears, there is a column from the NYT Public Editor, Clark Hoyt, excoriating the paper for having published a deeply misleading front page story
by Elizabeth Bumiller, that claimed that 1 out of 7 Guantanamo
detainees return to "jihad" once they are released. That happened
because Bumiller followed the most common method of modern
establishment reporting: she mindlessly repeated what her government
sources told her to say. As Hoyt put it:

But
the article on which he based that statement was seriously flawed and
greatly overplayed. It demonstrated again the dangers when editors run with exclusive leaked material in politically charged circumstances and fail to push back skeptically. The lapse is especially unfortunate at The Times, given its history in covering the run-up to the Iraq war.

That
is exactly what Shane and Johnston did with these memos. Just as
Bumiller did, they included some contrary facts buried deep in the
article about Comey's objections, but the headline and the way the
entire article was framed will create the impression -- as intended --
that there was unanimity among DOJ lawyers to approve these
techniques. Other journalists, too slothful to read the Comey emails
themselves, will get the message and go forth and repeat it, and it
will soon be conventional wisdom that "everyone" at the DOJ agreed
these torture techniques were legal. Already this morning, here is George Stephanopolous' reaction to the NYT story on Twitter:

Any
rational and minimally well-informed person who actually read the Comey
emails would walk away with the exact opposite point -- what is
"stunning" was how extreme was the pressure from the White House to
issue these memos and how compliant DOJ lawyers were to White House
dictates. But that's how our media works: anonymous government
officials tell them what to say; they write it down uncritically; and
it then becomes conventional wisdom regardless of how false it is.