George W. Bush's White House
stage-managed the Justice Department's approval of torture techniques
by putting pliable lawyers in key jobs, guiding their opinions and
punishing officials who wouldn't go along, according to details
contained in an internal report that recommended disciplinary action
against two lawyers.
Though
the recently released report by the Justice Department's Office of
Professional Responsibility concentrated on whether lawyers John Yoo
and Jay Bybee deserved punishment for drafting and signing 2002 memos
that permitted brutal interrogations of suspected terrorists, the
report also revealed how the White House pulled the strings of Yoo,
Bybee and others.
The report
puts into sharper focus what former Vice President Dick Cheney meant
when he told an ABC News interviewer on Feb. 14 that he has spoken out
loudly against the Obama administration's revised counter-terrorism
policies to disrupt possible punishments of Yoo, Bybee and CIA
interrogators.
"I thought it
was important for some senior person in the administration to stand up
and defend those people who'd done what we asked them to do," Cheney
said.
A little-noticed subplot in the OPR's 289-page report
was how the Bush administration got the legal opinions that it wanted
from the Justice Department's Office of Legal Counsel, which advises
the President and the Executive Branch on the limits of their legal
powers.
An important first
step for the White House was to make sure that the work on legal
opinions regarding harsh interrogations was done by a lawyer like Yoo
who already held extreme views on the powers of a President during
wartime.
Even then, however,
the White House did not leave it to Yoo to decide what limits should be
put on the CIA's interrogation techniques or what parameters should
circumscribe President Bush's power during the "war on terror."
For instance, John Bellinger, a lawyer at the National Security
Council, told the OPR that Yoo was "under pretty significant pressure
to come up with an answer that would justify" the interrogation program.
Yoo also shared drafts of his opinion with White House officials and
received suggestions on how to revise it. On July 10, 2002, Yoo told a
colleague via e-mail that "we're going over to visit with the NSC at
10:45 on Friday [July 12, 2002] ... and give them at that time our draft
of the opinion to comment on."
The title of that draft was the "bad things opinion," reflecting what
"bad things" could be done to terror suspects in U.S. custody.
On that Friday, Yoo met with White House counsel Alberto Gonzales and,
apparently, Cheney's legal counsel David Addington, who was known as a
fellow hardliner on presidential power, the OPR report said. Another
meeting was held at the White House the following Tuesday, July 16.
Expanding Bush's Power
After those meetings, Yoo and his OLC associates added two new sections
relating to how presidential power could override the anti-torture
statutes and what possible defenses could be used by CIA interrogators
who exceeded official guidelines.
Yoo claimed the two sections were added because of internal OLC
conversations that he had with his OLC boss, Bybee, and another
assistant Patrick Philbin. However, Philbin said he told Yoo that the
two sections were superfluous and should be removed.
"According
to Philbin, Yoo responded, 'They want it in there.' Philbin did not
know who 'they' referred to and did not inquire; rather, he assumed
that it was whoever had requested the opinion," the OPR report said.
Bybee also had no recollection of suggesting the two sections, though
he defended their inclusion as justified "if the client requested the
analysis."
Alberto Gonzales
"speculated that because David Addington had strong views on the
Commander-in-Chief power, he may have played a role in developing that
argument," the OPR report said.
In testimony before the House Judiciary Committee in 2008, Addington
said he had praised Yoo's possible inclusion of the two topics in the
memo. He said he told Yoo, "Good, I'm glad you're addressing these
issues."
But Addington added
a cryptic comment regarding Yoo's motivation. "In defense of Mr. Yoo,"
Addington said, "I would simply like to point out that is what his
client asked him to do."
Responding to follow-up queries from OPR, Yoo and Bybee identified Yoo's "client" as Addington.
The OPR investigators said they doubted Yoo's story about Bybee and
Philbin urging the inclusion of the two new sections, since they were
not in the original draft and were only added after the July 16 meeting
at the White House.
"We
believe it is likely that the sections were added because some number
of attendees at the July 16 meeting requested the additions," OPR said.
Curiously, too, when talking to OPR investigators, Yoo did not even
recall that his memo had permitted the near-drowning technique of
waterboarding. The report said:
"Yoo
told OPR that most of the techniques 'did not even come close to the
[legal] standard [of torture],' but that 'waterboarding did.' He told
us during his interview: 'I had actually thought that we prohibited
waterboarding. I didn't recollect that we had actually said that you
could do it.' He added:
"'[T]he
waterboarding, as it's described in that memo, is very different than
the waterboarding that was described in the press. And so when I read
the description in the press of what waterboarding is, I was like, oh,
well, obviously that would be prohibited by the statute.'"
Rushing the Opinions
While working on a second interrogation memo, Yoo sent an e-mail
message to a colleague that said, "I talked to the white house. They
would like the memos done as soon as possible." In another e-mail, Yoo
said comments from White House counsel Gonzales and others would be
incorporated.
Gonzales told
OPR that he would write his comments on Yoo's draft and then pass the
material onto Addington or another White House lawyer, "who would
forward them to Yoo along with their own comments. ...
"Gonzales
commented ... that Addington was 'an active player' in providing his view
and input on the draft memorandum. [Gonzales] stated: 'I'd be very
surprised [if] David [Addington] did not participate in the drafting of
this document."
Beyond the
issue of substance, the White House dictated the pace of the OLC legal
analysis, demanding that one opinion be signed by close of business on
Aug. 1, 2002. According to CIA records, the finished memo was faxed to
the CIA at 10:30 p.m. on Aug. 1.
Until the end of the process, Philbin had doubts about including the
section describing sweeping Commander-in-Chief powers.
It was in this context that OPR investigators asked Yoo about his views
on Bush's virtually limitless powers in wartime, posing the
hypothetical of whether the President could order "a village of
civilians to be [exterminated]?" Yoo answered, "Sure."
In the case of waterboarding and other abusive interrogation tactics,
the Yoo-Bybee opinion offered a novel and narrow definition of torture,
essentially lifting the language from an unrelated law regarding health
benefits.
The Yoo-Bybee memo
stated that unless the amount of pain administered to a detainee led to
injuries that might result in "death, organ failure, or serious
impairment of body functions" then the interrogation technique could
not be defined as torture.
Since waterboarding is not intended to cause death or organ failure -
only the panicked gag reflex associated with drowning - it was deemed
not to be torture.
Beyond the
evidence of how the White House manipulated Yoo and Bybee in carving
out broad powers for President Bush and the CIA to torture, there is
additional proof that the White House continued its behind-the-scene
control after Bybee left the OLC to become a federal judge in 2003.
Replacing Bybee
White House counsel Gonzales wanted Yoo to replace Bybee as OLC chief,
but Attorney General John Ashcroft objected because he considered Yoo
"too close to the White House," a footnote in the OPR report said.
Gonzales, in turn, nixed Ashcroft's choice, his counselor Adam
Ciongoli, leading the administration to name Jack Goldsmith as a
compromise choice.
Goldsmith
was regarded as a conservative Republican who supported strong
presidential powers. However, after taking over the OLC and reviewing
the Yoo-Bybee memos, Goldsmith was aghast at the sloppy scholarship and
took the extraordinary step of withdrawing them.
Soon, Goldsmith encountered Addington's wrath. In his memoir, The Terror Presidency, Goldsmith
described a White House meeting at which Addington pulled out a
3-by-5-inch card listing the OLC opinions that Goldsmith had withdrawn.
"Since
you've withdrawn so many legal opinions that the President and others
have been relying on," Addington said sarcastically, "we need you to go
through all of OLC's opinions and let us know which ones you will stand
by."
Though supported by
Deputy Attorney General James Comey, Goldsmith succumbed to the White
House pressure and quit in 2004. He was replaced by Daniel Levin, who
also reviewed the Yoo-Bybee material and reached a conclusion much like
Goldsmith's.
Levin told the
OPR that he remembered "having the same reaction I think everybody who
reads it has - 'this is insane, who wrote this?'"
When Levin turned to addressing the interrogation issue, he said he
faced no pressure from the CIA, but the "White House pressed" him,
adding:. "I mean, a part of their job is to push, you know, and push as
far as you can. Hopefully, not push in a ridiculous way, but they want
to make sure you're not leaving any executive power on the table."
But Levin didn't give White House officials their desired opinions on
interrogation and he was soon gone. Deputy Attorney General Comey said
senior levels of the Justice Department understood that Levin was
denied appointment as permanent OLC chief because he had not
"delivered."
OLC lawyer Philbin also faced the ire of the Vice President's office.
In November 2004, Philbin had a private talk with Addington "who told
him that, based on his participation in the withdrawal of [Yoo-Bybee
memos], Addington believed that Philbin had violated his oath to
uphold, protect and defend the Constitution of the United States," the
OPR report said.
"Addington
told Philbin that he would prevent Philbin from receiving any
advancement to another job in the government and that he believed that
it would be better for Philbin to resign immediately and return to
private practice," the OPR report said.
Continuing the Pressure
The White House pressure on the interrogation issue continued into 2005
after Ashcroft resigned and Bush moved his longtime counsel, Gonzales,
into the office of Attorney General.
In an April 27, 2005, e-mail, Comey recounted a meeting in which "the
AG explained that he was under great pressure from the Vice President
to complete both [replacement] memos, and that the President had even
raised it last week, apparently at the VP's request and the AG had
promised they would be ready early this week."
Comey also noted that Steven Bradbury, who had been named acting chief
of the OLC, "was getting similar pressure from [White House counsel]
Harriet Miers and David Addington to produce the opinions.
Parenthetically, I have previously expressed my worry that having Steve
as 'Acting' - and wanting the job - would make him susceptible to just
this kind of pressure."
Addington's job threat against Philbin also proved not to be an idle
one. In summer 2005, when Philbin was picked for a high-level job in
the Office of Solicitor General, Philbin said Addington strenuously
objected and Vice President Cheney personally called Gonzales to ask
that the appointment be withdrawn.
"AG
Gonzales agreed and told Philbin that he had decided that Philbin would
not receive the job in order to maintain good relations with the White
House," a footnote in the OPR report said. When Philbin protested,
Gonzales said he should resign, which Philbin finally did.
Meanwhile, Comey worried about the damage that the White House pressure
on the interrogation memos might do to the Justice Department and the
Attorney General.
In one
e-mail, Comey warned that "this opinion would come back to haunt the AG
and DOJ. ... the people who were applying pressure now would not be here
when the shit hit the fan. Rather, they would simply say they had only
asked for an opinion. It would be Alberto Gonzales in the bullseye."
Comey added: "It leaves me feeling sad for the Department and the AG. I
don't know what more is to be done, given that I have already submitted
my resignation. I just hope that when all of this comes out, this
institution doesn't take the hit, but rather the hit is taken by those
individuals who occupied positions at OLC and OAG [Office of the
Attorney General] and were too weak to stand up for the principles that
undergird the rest of this great institution."
Comey told the OPR investigators that there was pressure from the White
House and particularly Vice President Cheney and his staff. Though they
never were specific about their desired outcome on the memos, Comey
said you would have to "be an idiot not to know what was wanted."
Comey felt that acting OLC chief Bradbury knew that "if he rendered an
opinion that shut down or hobbled the [interrogation] program," Cheney
and Addington would be "furious."
Bellinger, who moved from the NSC to the State Department in 2005, told
OPR that there was tremendous pressure on the Justice Department to
conclude that the interrogation program was legal and could continue.
New Torture Memos
Finally in May 2005, acting OLC chief Bradbury signed three new
"torture" memos. In June, Bush formally nominated him to be assistant
attorney general for the OLC (although Democratic objections in the
Senate prevented him from ever gaining confirmation).
With Bradbury's memos reaffirming many of the administration's brutal
interrogation techniques, Comey began preparing for his exit.
Though having been a successful prosecutor on past terrorism cases,
such as the Khobar Towers bombing which killed 19 U.S. servicemen in
1996, Comey had earned the derisive nickname from Bush as "Cuomey" or
just "Cuomo," a strong insult from Republicans who deemed former New
York Gov. Mario Cuomo to be excessively liberal and famously indecisive.
On Aug. 15, 2005, in his farewell speech, Comey urged his colleagues to
defend the integrity and honesty of the Justice Department.
"I
expect that you will appreciate and protect an amazing gift you have
received as an employee of the Department of Justice," Comey said. "It
is a gift you may not notice until the first time you stand up and
identify yourself as an employee of the Department of Justice and say
something - whether in a courtroom, a conference room or a cocktail
party - and find that total strangers believe what you say next.
"That
gift - the gift that makes possible so much of the good we accomplish -
is a reservoir of trust and credibility, a reservoir built for us, and
filled for us, by those who went before - most of whom we never knew.
They were people who made sacrifices and kept promises to build that
reservoir of trust.
"Our
obligation - as the recipients of that great gift - is to protect that
reservoir, to pass it to those who follow, those who may never know us,
as full as we got it. The problem with reservoirs is that it takes
tremendous time and effort to fill them, but one hole in a dam can
drain them.
"The protection of
that reservoir requires vigilance, an unerring commitment to truth, and
a recognition that the actions of one may affect the priceless gift
that benefits all. I have tried my absolute best - in matters big and
small - to protect that reservoir and inspire others to protect it."
Though the full import of Comey's speech was not apparent at the time,
it now appears he was referring to the legal gamesmanship that had
undercut the Justice Department's traditional commitment to the rule of
law and enabled the Bush administration to engage in torture and other
abuses of power.
Hoping for Accountability
At the start of the Obama administration, some civil libertarians and
constitutionalists hoped that there would be some accountability for
the torturers and their accomplices in the Bush administration. But
those hopes have been dashed.
The OPR investigators did conclude that Yoo and Bybee violated
"professional standards" and deserved possible disbarment as lawyers.
[Yoo is now a tenured law professor at the University of California at
Berkeley and Bybee is a federal appeals court judge in San Francisco.]
But career prosecutor David Margolis, who was put in charge of
reviewing the OPR's findings, downgraded the criticism to simply "poor
judgment," which means the Justice Department won't refer their cases
to state bar associations.
Meanwhile, Cheney has lashed out at even the mildest suggestion that
there might be some accountability. He also has spoken up in defense of
waterboarding and of the people in the OLC and the CIA who made it
possible.
In his Feb. 14
interview on ABC's "This Week," Cheney pronounced himself "a big
supporter of waterboarding," although it has been regarded as a form of
torture since the Spanish Inquisition and has long been treated by U.S.
authorities as a serious war crime, such as when Japanese commanders
were prosecuted for using it on American prisoners during World War II.
But Cheney was unrepentant about his support for the technique. He
answered "yes" when asked if he had opposed the Bush administration's
decision to suspend use of waterboarding - after it was employed
against three "high-value detainees" sometimes in repetitive sequences.
He added that waterboarding should still be "on the table" today.
Cheney then went further. Speaking with a sense of impunity, he
casually undercut a key line of defense that senior Bush officials had
hidden behind for years - that the brutal interrogations were approved
by independent Justice Department legal experts who thus gave the
administration a legitimate reason to believe the actions were within
the law.
Cheney acknowledged that the White House had guided the Justice Department lawyers.
In responding to a question about why he had so aggressively attacked
Obama's counter-terrorism policies, Cheney explained that he had been
concerned about the new administration prosecuting some CIA operatives
who had handled the interrogations and "disbarring lawyers with the
Justice Department who had helped us put those policies together. ...
"I
thought it was important for some senior person in the administration
to stand up and defend those people who'd done what we asked them to
do."
Based on Cheney's
comment and the newly released OPR report, it is now apparent that Yoo,
Bybee and Bradbury were the lawyerly equivalents of those U.S.
intelligence analysts, who - in the words of the British "Downing
Street Memo" - "fixed" the facts around Bush's desire to justify
invading Iraq.
In
justifying torture, these government lawyers had behaved less like
diligent attorneys providing professional advice to honest clients and
more like Mob consiglieres counseling crime bosses on how to evade the
law.
