Andy Card LOL: Bush Can’t Pardon Himself for Torture (But Obama Has)

As part of the discussion in his book explaining how the CIA shifted from torture to killing, Mark Mazzetti tells the story of how the CIA balked at engaging in further torture after the Detainee Treatment Act.

After President Bush signed the bill into law, then-CIA Director Porter Goss wrote the White House saying the CIA would refuse to torture unless and until they got a guarantee they wouldn’t be prosecuted for doing it. In response, the Bush Administration sent Andy Card to the CIA to try to calm them down.

Card drove out to Langley intending to soothe the fears at CIA headquarters, but his visit was a disaster. Inside a packed conference room, Card thanked the assembled CIA officers for their service and their hard work but refused to make any firm declarations that agency officers wouldn’t be criminally liable for participating in the detention-and-interrogation program.

The room became restless. Prodded by his chief of staff, Patrick Murray, Porter Goss interrupted Card.

“Can you assure these people that the politicians will not walk away from the people who carried out this program?” Goss asked. Card didn’t answer the question directly. Instead, he tried to crack a joke.

“Let me put it this way,” he said. “Every morning I knock on the door of the Oval Office, walk in, and say, ‘Pardon me, Mr. President.’ And of course, the only person the president can’t pardon is himself.”

Card giggled after he said this, but his joke landed with a thud. The White House chief of staff, when asked whether President Bush would protect CIA officers from legal scrutiny, had suggested that the most they might be abel to rely on is a presidential pardon after the indictments and convictions were handed down. (127-128)

Goss effectively repeated a request the CIA had made, unsuccessfully, as early as July 13, 2002 (when, it should be said, Goss was ostensibly in charge of overseeing the program at the House Intelligence Committee, though there’s no reason to believe he knew about the earlier request): for an Administration guarantee that everyone involved in the torture program would be shielded from criminal consequences for kidnapping and torturing.

And in response, Card implied to these CIA officers and executives two things:

  • President Bush would pardon anyone convicted of crimes related to torture
  • Bush, himself, was ultimately exposed to prosecution for those crimes as well (all the more so, since he couldn’t pardon his own crimes)

Now, Card wouldn’t have even tried such a joke unless he knew his audience knew that the torture program was based on a Presidential Finding — what we know to be the September 17, 2001 Gloves Come Off Memorandum of Notification.

There’s fairly clear evidence that CIA’s officers did know about it.

George Tenet had made that clear on every single page of his January 2003 Guidelines on Interrogations, which at least some CIA interrogators had to sign. And Glenn Carle was told “We have a letter from the president. We can do whatever we need to do. We’re covered,” as he was being sent off to interrogate Pacha Wazir, who would be tortured at the Salt Pit.

Of course, by the time Card made that joke in (presumably) early 2006, it was becoming clear the Administration wouldn’t hold up its end of that bargain. When the torture shit hit the fan in 2004, the White House was silent about the President’s role in ordering the program and the White House’s role in authorizing individual treatment in the months before OLC wrote a memo sanctioning the torture had already taken place. And while the signing statement to the DTA was perhaps Bush’s clearest indication that he believed he could order torture even after Congress had said it was illegal, an anonymous Administration source was invoking the exceptional “ticking time bomb” scenario at the same time they were asking the CIA to sustain its torture program more generally.

Moreover, even as this fight was brewing, the only CIA person to be prosecuted for torture-related crime, David Passaro, was attempting to obtain a slew of documents laying out how CIA’s chain of command, including the President, had authorized torture. His discovery request should have returned the Gloves Come Off MON (which, in addition to authorizing torture, also reportedly authorizes the Afghan Counterterrorism Pursuit Teams — which Passaro had been helping to set up — to engage in lethal force), Tenet’s Guidelines, the bullet point document that presented CIA’s claim that its bases overseas were outside US jurisdiction, and many more documents that would have sanctioned many if not all the actions he was convicted for. Passaro got none of those documents. Nor did Passaro get the pardon Card jokingly offering up (though that was not yet clear when Card made his ill-fated joke).

Nevertheless, even though invoking the names of Bush, Tenet, and Cofer Black didn’t help Passaro, people tied to CIA’s torture program would continue to make Bush’s authorization clear. Jonathan Fredman described his role in the torture program as “provid[ing] legal advice to the Director of CTC  about proposed and ongoing operations conducted pursuant to written Presidential direction to CIA following 9/11” in his 2008 letter disavowing some deeply incriminating comments made in 2002 that, by 2008, directly pertained to issues being criminally investigated. By 2011 (again, when some of the torture was still being investigated), John Rizzo was publicly explaining that “a few days after the attacks, President Bush signed a top-secret directive to CIA authorizing an unprecedented array of covert actions against Al Qaeda and its leadership,” including “the capture, incommunicado detention and aggressive interrogation of senior Al Qaeda operatives” (though Rizzo noted regretfully that only the Gang of Eight — though it was actually the Gang of Four — had been informed of the torture program — though that claim, too, is false).

Ultimately, though, Card’s joke that a President can’t pardon himself has proven false, sort of.

Sometime in fall 2009, President Obama’s National Security Advisor James Jones took the highly unusual step of getting involved in a FOIA battle, ACLU’s FOIA for torture documents. The declaration Jones submitted was part of an ultimately successful attempt to claim that the Gloves Come Off MON specifically — and presumably, the existence of Presidential Findings more generally — must remain classified. As a result, the Second Circuit judged President Bush’s role in personally directing CIA to engage in torture to be classified, in spite of the CIA’s widespread acknowledgment of Bush’s role.

And here’s the ultimate punchline: Not only did Obama’s unusual efforts succeed in hiding Bush’s role in authorizing torture, but — because the Gloves Come Off MON also authorizes CIA’s drone and/or targeted killing program — Obama also succeeded in hiding the President’s role in authorizing CIA’s drone strikes.

President Bush and, even more so, Obama, may well have ensured DOJ didn’t prosecute torturers and drone assassins for any crimes (with the exception of Passaro). But so long as the President gets to guard the secrets, the notion that Presidential exposure will really protect the people doing the kidnapping, torture, and killing from legal liability itself seems risky.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

14 replies
  1. peasantparty says:

    So! All of Passaro’s team and buds at the CIA left their man in the field.

    They left him there to take the bullets while they walked away.
    They just walked away. They also helped to field Spain’s War Crimes attempt against Bush and Cheney. And to this very day are not about to do anything to save themselves or their team mate! In fact, they are now serving under one of the snakes that helped it all go so smoothly.

    They didn’t even stand up over V. Plame! I just wanna know if this is what is keeping them blackmailed from actually protecting the country from enemies within? I’m sorry, but the President and his DOJ, Foreign Policy advisors are in a world of hurt if things are not set right.

  2. Snoopdido says:

    I’m still reeling from the very idea behind the Andy Card meeting at the CIA. Particularly at the apparent almost childish and naïve expectations of Porter Goss and his assembly of CIA torturers.

    Did these people really think that their deliberate torturous acts somehow could and would be erased by the very White House politicians who ordered them? That naïveté by supposed hard-bitten, jaded, and cynical intelligence professionals is almost itself beyond astonishing.

  3. Snoopdido says:

    @peasantparty: I really don’t know what the specific straw was that finally broke the camel’s back with respect to the Bush administration dumping Porter Goss, but it’s clear he was incredibly unfit for any position other than perhaps local dog catcher.

    But second to the naïve expectations of Porter Goss and his assembly of CIA torturers, I’m also shaking my head with amazement at the thought processes of the White House in sending Andy Card.

    What were they thinking in imagining that a pep talk from a politician like White House Chief of Staff Andy Card would magically ease the CIA’s prosecution fears?

  4. peasantparty says:

    @Snoopdido: I don’t know other than my suspicion of clout from Poppy Bush and Cheney. I agree, Card is the last person on earth to face a room full of head CIA types, but ya know.

    “Good Job, Brownie!” ;-)

  5. scribe says:

    The fact that they sent Card over to laugh and joke at the CIA’s concerns should tell the reader all they need to know about how Bush and Cheney really viewed the CIA: as expendable peons.

    Y’can’t teach that kind of attitude – you have to be raised in it. Which is pretty much what we had in Bush – a spoiled brat of privileged extraction with no regard for anyone or anything.

  6. Bill Michtom says:

    @Snoopdido: “Porter Goss … was incredibly unfit for any position other than perhaps local dog catcher.”

    Hey! You ever try catching a dog? Don’t downplay those skills!

  7. What Constitution? says:

    This is an outstanding post and it ought to serve to get a lot of people thinking — whether “again” or “finally” — about the shameful illegalities of the torture program of the Bush administration/the United States over the past decade.

    But I need to register a quibble over the headline phrase “But Obama Has”: That’s not true. Obama most definitely has NOT “pardoned” Bush over torture or anything else, not even as a rhetorical flourish. Obama has certainly shielded Bush, but that’s not a “pardon”. A pardon is actually a constitutionally permissible act. “Looking forward not backward” is not, per se, an action contemplated by the Constitution. There is room for debate, in the context of the continuing criminal exposure of Bush et al over torture, over what “look forward not backward” legally means — is it “prosecutorial discretion”? is it a “‘war’ power”? is it instead a constitutionally proscribed failure to “protect and defend the Constitution”? — but whatever else it may be, it is not a “presidential pardon.”

    Bush and others deserve to be prosecuted for what went on over torture, and the world community and our own legacy demands it. Articles like this one serve the important goal of continuing to document the litany of disgraceful illegalities being ignored by the leadership of this country, and to highlight the rolling disclosures of additional instances as they come to light — a function rendered all the more important as Obama and his DOJ seek to shift the argument away from the illegality itself by diverting attention and resources to the dilatory contention that illegality suffices to warrant secrecy because the King can do no wrong. So laying out the significance of the continuing disclosures of those “fondly reminiscing” about the “good old days” is critically necessary.

    But no, however much Obama might like people to presume he has effectively “pardoned” Bush, he hasn’t.

  8. Mike Micklow says:

    @Snoopdido: Is it a matter of “childish and naïve expectations” to think that the CIA would be granted immunity for torture? Well, yes; at least from a legal and common sense standpoint. However this is the Beltway we are talking about. Everything is inside out and upside down inside the Beltway.

    The historical context of foreign policy is rife with grants of immunity. Ford pardoned Nixon; though Regan admitted to violating the Boland Amendment, he was pardoned by Bush Sr. for the Iran-Contra debacle, along with his cronies like Oliver North and John Pointdexter; Bush Sr. was pardoned by Clinton for Iraqgate. And now Obama pardons Bush for warrantless wiretaps and offshore torture regimes.

    So you can begin to see how the CIA would just expect immunity, as it’s been ingrained into the very fabric of covert operations and foreign affairs for a very long time now.

  9. TuffsNotEnuff says:

    We know from the movie Zero Dark Thirty that the CIA focus on torture cost us 7 years getting Usama bin Laden. Critical foreign intel (from Morocco) on UBL’s main courier was placed in bankers boxes and simply lost.

    Without ZDT we would not have learned that the copies of foreign intel on Al Qaeda were mislaid and then moved to Pakistan. No support services were applied for 7 years. Then Obama stopped it in 2009 and the Camp Chapman bombing eliminated the project manager. Only then did the bankers boxes get analyzed.

    Cheney started it. He assured that the torture hounds got to run the hunt for bin Laden team.

    1. 9/11 happened and foreign intel services made excellent copies of their paper files on Al Qaeda. These were dumped into bankers boxes at CIA.

    2. During 2002 there was a read-through of this material. They looked for the 9/11 hijackers, bin Laden, and the Air France 8969 suicide-hijacking from 1994.

    3. By 2003, the main Hunt For UBL team was assembled. The team might as well have been hand-picked by Dick Cheney.

    4. Torture extracted names. These names were nom de guerre Al Qaeda nicknames and aliases. Only rarely did they get the actual family names as you would see on a birth certificate. Crumbs.

    5. Same team took custody of the vast resource of anti-terrorism material sitting in the 100s of bankers boxes.

    6. For 7 years the team sat on it.
    — No work was done to flesh out or to correct the material where the inevitable conflicts were found.
    — No work was done to correlate information.
    — No transcription was performed.
    — No translation was done. No summaries.
    — No data entry to the computer database system. This omission proved critical.
    — No request for technical assistance.
    — Everything went to Pakistan. Lost.

    7. Torture produced minimal information. The name “Abu Ahmed” — a nom de guerre — came up repeatedly. Everyone who dealt with UBL met him at one time or another. This man, “Abu Ahmed,” was the prime courier to UBL and tracking him down was the route that led to UBL’s fortress-house in Abottabad, Pakistan.

    Then in 2009/2010 the bankers box intel gave up “Abu Ahmed” and eventually UBL. After torture and hiding project management in Pakistan lost 7 years.

    UBL was not that well hidden. It took Cheney and his fake claims to expertise about torture and Israel’s use of it to screw up the hunt-for-bin-Laden team. Otherwise, Bush43 would have nailed UBL by 2005/2006.

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