Wednesday, October 15, 2008
The Commander in Chief's Signature
The Washington Post this morning reports that the White House twice issued memoranda to the CIA authorizing the use of its so-called "enhanced" interrogation techniques. I'm not quite sure why this is breaking news. President Bush, after all, has already boasted that he specifically approved of each of the techniques, and we've now seen the reports of principals' meetings at which the techniques were discussed and authorized in exquisite detail.
It's also significant because Rumsfeld was supposed to have revoked permission for the techniques by that time, the Abu Ghraib scandal was in full swing, and we were being told that the torture memos were working drafts, etc., etc.
Now it turns out they were still signing memos, still torturing, and anything repudiated publicly due to Abu Ghraib was being secretly re-approved.
I think you need to put your litigator hat on Marty. By then, in 2004, Maher Arar had a torture lawsuit pending against Ashcroft (one Comey tried to get deep sixed by invoking state secrets).
Also by then, Clement had stood before the Supreme Court and stated on behalf of the Executive Branch - made affirmative representations to the court - that we were not torturing.
There were other lawsuits already brought and in the offing - there were dead detainees as well by then and disappeared children.
As repulsive as it all was, and as shockingly indecent as even the "replacement crew" of Goldsmith and Comey were, they were better enough lawyers (at least Comey seems to have been)that they were trying to protect their clients - the AG and President (not so much the Constitution and The People, but that train left the station).
If you are protecting your clients, you try to keep them from putting their conspiracy to torture in writing. Similarly, it sounds like someone at CIA or elsewhere was pushing to protect their client by getting it in writing - so that not only could they claim the benefit of that bizarre little right wing theory that "if the President wants it, it can't be illegal" but also so they would be pretty crystal clear cut entitled to a pardon. I wonder if the "memos" don't basically equate as pocket pardons for that matter.
imo .. a president ..even as CNC .. cannot legally order .. or excuse acts which are forbidden by statute law .. or the constitution ...
and for my cite i refer to the military axiom which states one is not obligated to follow any order which is illegal .. immoral .. or against the laws of land warfare .. such orders are not actionable .. they are illegal .. end of story .. and quoting them as a defense is no defense at all under the UCMJ .. never has been .. see the nuremburg principle ..
By the spring of 2004, the concerns among agency officials had multiplied, in part because of shifting views among administration lawyers about what acts might constitute torture, leading Tenet to ask a second time for written confirmation from the White House. This time the reaction was far more reserved, recalled two former intelligence officials. "The Justice Department in particular was resistant," said one former intelligence official who participated in the discussions. "They said it doesn't need to be in writing." What's that about?
Jack Goldsmith. In The Terror Presidency, Goldsmith wrote that Yoo was mistaken in setting a bright line for torture and strongly implied that the line should be muddied up to appearances' sake.
"Bart" DePalma emits this strange sentence:
In The Terror Presidency, Goldsmith wrote that Yoo was mistaken in setting a bright line for torture and strongly implied that the line should be muddied up to appearances' sake.
Could you please explain your flights of fancy here? Ummmm ... on second thought, I take that request back. If you have more to say, do it on your own blog so we don't accidentally step in it.
This February Michael Hayden said that the US used waterboarding on only 3 prisoners in 2002 and 2003. Last November the WSJ said essentially the same thing. The implication was that the CIA or perhaps the Bush administration had decided to retire the practice.
So this WP report shows that waterboarding and the rest were still very much on the table in mid 2004, at least as far as the CIA was concerned.
I think there is pretty good circumstantial evidence that the July 2004 'memo' is an official Presidential finding. In the CIA's Vaughn index of documents withheld in the ACLU, et. al., FOIA case, document 22 is described thusly:Post a Comment
Date of Document: July 13, 2004
Classification : SCI, Top Secret
From/To: Prepared by a senior Agency official
Subject: Congressional notification
Document Pages : 6
Document Description : This six-page document consists of a three-page memorandum for the record and a three-page memorandum of briefing notes. Both documents concern a briefing to Congress on a particular set of issues. The document is dated July 13, 2004 and bears the classification TOP SECRET//SCI.
This is, as far as I can tell, the only document described as a 'Congressional notification' in the entire index which makes me suspect that it was the notification required for a Presidential finding. If the WaPo report is accurate and my guess is correct, George W. Bush's signature is on a document that authorizes torture as the official policy of the U.S.
 The Vaughn index used to be linked here:
I can't connect to that site today.