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A Dick Cheney Torture Trifecta!

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First we have Judy "re-connected at the roots" Miller claiming Nancy Pelosi’s in trouble because Dick Cheney tortured.

Then we got Stephen "Hagiographer" Hayes, claiming Nancy Pelosi’s in trouble because Dick Cheney tortured.

And now we’ve got Victoria Toensing, claiming we shouldn’t prosecute John Yoo and Jay Bybee because they told Dick Cheney he could torture. This article is notably bad, even for Toensing. She invokes her Reagan-era legal experience as her basis of authority–but ignores the Reagan-era case which declared waterboarding to be torture.

In the mid-1980s, when I supervised the legality of apprehending terrorists to stand trial, I relied on a decades-old Supreme Court standard:

She claims the lawyers (she conveniently mentions just Yoo and Bybee, for obvious reasons) only had to determine whether waterboarding constitued a specific intent to torture, and not whether it shocked the conscience.

Our capture and treatment could not "shock the conscience" of the court. The OLC lawyers, however, were not asked what treatment was legal to preserve a prosecution. They were asked what treatment was legal for a detainee who they were told had knowledge of future attacks on Americans.

The 1994 law was passed pursuant to an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. The law’s definition of torture is circular. Torture under that law means "severe physical or mental pain or suffering," which in turn means "prolonged mental harm," which must be caused by one of four prohibited acts. The only relevant one to the CIA inquiry was threatening or inflicting "severe physical pain or suffering." What is "prolonged mental suffering"? The term appears nowhere else in the U.S. Code.

Congress required, in order for there to be a violation of the law, that an interrogator specifically intend that the detainee suffer prolonged physical or mental suffering as a result of the prohibited conduct. Just knowing a person could be injured from the interrogation method is not a violation under Supreme Court rulings interpreting "specific intent" in other criminal statutes.

Bradbury, of course, spent a good part of his May 30, 2005 memo addressing the "shock the consicence" standard, because the program had been deemed illegal by the CIA’s own IG under that standard.

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Spotted: Aspen Trees, Turning on Roots

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Nico Pitney put this YouTube up as a preface to Shep Smith losing it in a later segment. (If you want to see Shep say "We are America, we do not fucking torture" click through.)

But I’m at least as fascinated by Judy Miller admitting she had a tough time getting all the way through the torture memos. "You know it when you see it," she said, referring to torture. Waterboarding someone 183 times, she repeated.

But as Shep points out, "if there was torture, that’s a crime. If there was crime, there were criminals. Who ordered the torture?" 

So now, two years after Judy’s dubious testimony got Dick Cheney off scot free after he ordered the outing of CIA spy, she’s demanding information about "Who Why When What, this system came about."

Let’s start with "Who," Judy…

Maybe she hasn’t thought through how this one ends. She claims she doesn’t know who ordered the torture, so that’s possible.

But we’re headed dangerously close to Judy turning on her roots, rather than turning in clusters. Not that I’m complaining, mind you–if Shep Smith and Judy Miller want to make it cool for Republicans to oppose torture, I’m all in favor. 

But it is a bit of a biological oddity, this aspen tree turning on its roots.

Dick’s Talking Points, Two

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When Libby was first asked about any discussions he had with Cheney in response to Joe Wilson’s op-ed, he first claimed he had not discussed the op-ed until after the Novak column (though with his aborted discussion of a "conver–"sation, he may have been thinking of the July 9 conversation he had with Novak and subsequently hid).

I don’t recall that conversation until after the, until after the Novak piece. I don’t recall it during this week of July 6. I recall it after the Novak conver — after the Novak article appeared I recall it , and I recall being asked by the Vice President early on, you know, about this envoy, you know, who is it and — but I don’t recall that, early on he asked about it in connection with the wife, although he may well have given the note that I took.

Q. And so your recollection is that he wrote on July — that you discussed with the Vice President, did his wife send him on a junket? As a response to the July 14th Novak column that said, he was sent because his wife sent him and she works at the CIA?

A. I don’t recall discussing it –yes, I don’t recall discussing it in connection with when this article first appeared. I recall it later.

Then, when Fitz points out the utter absurdity of discussing with Cheney, speculatively, that Plame was purportedly involved in sending her husband, after Novak had already reported that fact directly, Libby shifts, and tries to claim they talked about it after July 10 when–he claimed–Tim Russert had told him of Plame’s identity.

Q. And are you telling us under oath that from July 6th to July 14th you never discussed with Vice President Cheney whether Mr. Wilson’s wife worked at the CIA?

A. No, no, I’m not saying that. On July 10 or 11 I learned, I thought anew, that the wife — that, that reporters I lwere telling us that the wife worked at the CIA. And I may have had a conversation then with the Vice President either late on the 11th or on the 12th in which I relayed that reporters were saying that.

Basically, Libby was trying to date the notations Cheney had made on Wilson’s op-ed ("Or did his wife send him on a junket?") Read more →

Scott McClellan Dismantles Cheney’s Plame Firewall

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When evidence from the Scooter Libby trial showed that Dick Cheney had probably ordered Scooter Libby to leak Valerie Plame’s identity, Cheney built a firewall that legally excused the leak–but still insulated George Bush from involvement in knowingly outing a CIA spy. Cheney claimed, on at least two occasions, that he himself had the authority to declassify classified information, presumably up to and including Valerie Plame’s identity. Yet new information from Scott McClellan dismantles Cheney’s firewall; McClellan reveals that in the same period when Cheney was claiming he had the authority to declassify such information, the White House Counsel’s Office under Harriet Miers disagreed that the Vice President had such declassification authorities.

The Evidence Cheney Ordered Libby to Leak Plame’s Identity

gx2a-july-8-leak-to-judy-note.jpg

In spring of 2006, evidence was accumulating that Dick Cheney had ordered Scooter Libby to leak Valerie Plame’s identity to Judy Miller. We learned (and then, during the trial, we saw) that on July 7 0r 8, Cheney had ordered Libby to leak something to Judy Miller. We learned from Miller’s newspaper account (and then, during the trial, from her testimony) that after receiving that order, Libby proceeded to leak Plame’s identity to Miller.

And, as we got more information, we learned that Scooter Libby’s cover story for that order and that leak–that Cheney had only ordered him to leak the National Intelligence Estimate–could not be true. That’s because (among other reasons), Libby claimed he did not leak the classified information Cheney ordered him to leak until he got reassurances from David Addington that the President could insta-declassify classified information, thereby making such a leak legal.

I had previously spoken to our General Counsel, David Addington, and our General — and ask our General Counsel, does the President have the ability if he wants to take any document and say it’s declassified, go talk about it?

And Libby further explained that, at the same conversation where he got those reassurances from David Addington, he asked about Wilson’s probable contract with the CIA.

Q. And can you recall what — in your conversation with Mr. Addington about declassification, do you recall if you discussed any other topics with Mr. Addington at the time?

A. Yes. I also discussed in that conversation or close to that conversation, the question of whether there was a contractual obligation for Mr. Wilson.

Given these details, Libby’s notes, and Addington’s testimony (Addington said the conversation took place after Joe Wilson’s op-ed appeared), we can date this conversation to July 7 or 8. (Indeed, Libby even says the conversation declassifying the information itself may have happened on July 7 or "some time at the end of the previous" week.) Read more →

Bob Novak Is One Key to Libby’s Aspen Letter

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Alright. Admittedly this discovery is rather dated. But hell–what are blogs for, if not to rehash that old Aspen letter Libby sent Judy in September 2005? Especially if, after rehashing the letter, you discover that Bob Novak may be there hiding among the Aspen trees?

Back when I first analyzed the letter, I compared how Libby’s description of the testimony of journalists matched up against published accounts about that testimony.

Because, as I am sure will not be news to you, the public report of every other reporter’s testimony makes clear that they did not discuss Ms. Plame’s name or identity with me, or knew about her before our call.

I compared that statement to the public reports from Tim Russert and Matt Cooper and agreed (after some coaching from readers), that Russert "did not discuss Ms. Plame’s name or identity with [Libby]" and Cooper "knew about her before [Libby’s] call." Surprise! Even in a cryptic letter, it appeared, Libby was being transparent and honest with Judy. Which struck me as rather suspicious–that Libby might tell such transparent truths in such cryptic language.

But I did that analysis a month before I first speculated that Libby had spoken to Bob Novak the week of the leak, and a full year before Libby’s and Novak’s conversation on July 9 was confirmed in court filings. That is, when Libby wrote the Aspen letter, we didn’t know that Novak was among the journalists who had testified about a conversation with Libby, but Libby knew it. And if my reading of the script Libby sent Judy via Steno Sue and Pool Boy was correct, then Judy would have known about the conversation, though not that Novak had testified. As a reminder, here’s how I first speculated that Libby and Novak had spoken:

Steno Sue’s Secret Message
The morning Judy testified the first time to the Grand Jury, one of Libby’s allies managed to get the following passage inserted into the newspaper that will replace the NYT as the nation’s newspaper of record.

[snip]

The Novak Surprise
Now we come to far and away the most curious part of this coaching session:

Libby did not talk to Novak about the case, the source said.

Is this still a message for Judy? Why would Libby’s friend need to remind Judy that Libby hadn’t spoken to Novak in the case? Unless she knew that he had spoken to Novak? I think it highly possible that Libby’s friend is telling Judy not to mention the fact that she knew Libby spoke to Novak about this case.

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The Judy Miller Standard

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Yup. David Shuster was watching the same Scooter Libby trial I was.

There are worse things for Obama than if John McCain becomes indelibly connected with Judy’s mindless war-mongering.

Update: Here’s McCain’s op-ed, now posted at NY Post. Shorter McCain: "According to political appointees (but not the non-partisan GAO), the Iraqis have achieved 15 of 18 benchmarks. But somehow, military self-sufficiency was not one of those benchmarks, so I get to stay here regardless of what Maliki has to say about it."

Missing Emails: Addington’s Search Terms

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Among the documents introduced at the trial was a draft version of the search that David Addington requested Keith Roberts of the Office of Administration to do on the emails on the OVP server. This is not a final version–it is what Addington sent to Deputy Special Counsel Roos to get his approval before he submitted it to Roberts to do his search. So hopefully Roos fixed some of the glaring holes in the email search–I don’t know.

In any case, here are the searches Addington requested in order to elicit emails on or to journalists from June 1 to October 31, 2003 and Joe and Valerie Wilson from October 1, 2003 until January 23, 2004 (I’m having a few technical issues, so this isn’t an image; make sure you click through to see the PDF):

First Search

Search for email messages created between June 1, 2003 and October 31, 2003, inclusive through use of the following search terms:

"_Novak_"
"_Royce_"
"_Phelps_"
"_Leiby_"
"Mike_Allen"
"Dana_Priest"
"Glenn_Kessler"
"Matthew_Cooper"
"_Dickerson_"
"_Calabresi_"
"Michael_Duffy"
"_Carney_"
"Evan_Thomas"
"Andrea_Mitchell"
"Chris_Matthews"
"_Russert_"
"Campbell_Brown"
"_Kristof_"
"_Sanger_"
"Judith_Miller"
"_Hitt_"
"_Gigot_"
"John_Solomon"
"Jeff_Gannon"
"Talon_News"

Second Search

Search for e-mail messages created between October 1, 2003 and January 23, 2004, inclusive, through use of the following search terms:

"Joseph_C._Wilson" or "Joseph_wilson" or "Joe_wilson" or "Ambassador_wilson" or "Amb._Wilson" or "Amb_Wilson" or "Plame_" or "Niger_"

Now, once again, I don’t know whether this search for emails used these precise search terms, but if it did, here are the gaping holes which the search wouldn’t cover:

Journalist Names

For the journalists with unusual last names, Addington requests a search of those last names, which would be the most expansive search. Such journalists include Russert, Sanger, and Kristof–all names that, by the time this thing was done (and certainly before for Paul Gigot and Timmeh Russert)–were probably self explanatory without the first name. Curiously, the list of last name searches includes Dickerson; that’s surprising because John Dickerson’s last name is neither so unique nor his role in this story so central (unless you’re trying to make Ari Fleischer the fall guy) that it should be self-standing.

But notice some of the journalists for whom Addington submits first and last name, in quotes, that would return just that string: Judith Miller, Matthew Cooper, and Andrea Mitchell. This search will probably return any email from or to these journalists, picking up email signatures with their full names. Read more →