Jane Mayer, the CIA Inspector General’s Report, and the Torture Tapes

Though Mayer doesn’t connect the eventual destruction of the torture tapes in November 2005 with the Doug Jehl story published on November 9, 2005, revealing the conclusion of the CIA Inspector General’s report on torture, she reinforces a point I’ve made in the past–the decision to destroy the torture tapes was closely tied to the release of the IG report and the analysis made in the report.

The book is even more detailed than published excerpts have been about starkly the IG report changed the views on torture among some Administration officials, particularly Jack Goldsmith.

The 2004 Inspector General’s report, known as a "special review," was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply "sickening." The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, ome of whom seemed to have become frighteningly dehumanized. The source said, "You couldn’t read the documents without wondering, "Why didn’t someone say, ‘Stop!’"

Goldsmith was required to review the report in order to settle a sharp dispute that its findings had provoked between the Inspector General, Helgerson, who was not a lawyer, and the CIA’s General Counsel, Scott Muller, who was. After spending months investigating the Agency’s interrogation practices, the special review had concluded that the CIA’s techniques constituted cruel, inhuman, and degrading treatment, in violation of the international Convention Against Torture. But Muller insisted that every single action taken by the CIA toward its detainees had been declared legal by John Yoo. With Yoo gone, it fell to Goldsmith to figure out exactly what the OLC had given the CIA a green light to do and what, in fact, the CIA had done.

As Goldsmith absorbed the details, the report transformed the antiseptic list of authorized interrogation techniques, which he had previously seen, into a Technicolor horror show. Goldsmith decline to be interviewed about the classified report for legal reasons, but according to those who dealt with him, the report caused him to question the whole program. The CIA interrogations seemed very different when described by participants than they had when approved on a simple menu of options. Goldsmith had been comfortable with the military’s approach, but he wasn’t at all sure whether the CIA’s tactics were legal. Waterboarding, in particular, sounded quick and relatively harmless in theory. But according to someone familiar with the report, the way it had been actually used was "horrible." (288)

As Mayer points out, just as Goldsmith was trying to deal with this question, the confrontation on the illegal wiretap program hit (in March 2004), as did the Abu Ghraib scandal (in April). (I’d add that, in the same March to June time period, Fitzgerald’s questions for Libby and Cheney and his moves to subpoena journalists would have made those two, at least, worried that their efforts to cover up the Plame outing might collapse.)

That’s the background for the White House briefing on the torture tapes.

Then, on April 28, the Abu Ghraib story broke. Panic spread through the administration, from the top of the Pentagon through the CIA and on through the White House. One obvious lesson was that pictures–the actual incontrovertible proof of abuse–had a power that no written or oral description could match. At the CIA, where hundreds of hours of videotapes of two U.S.-held Muslim detainees being strapped down and waterboarded were sitting in a safe, the immediate reaction, one administration source involved at the time said, was "Uh-oh. A lightbulb went on."

On May 24, Muller met at the White House with Addington, Gonzales, and Bellinger to discuss the fallout from both the Inspector General’s report and Abu Ghraib. He mentioned the CIA’s videotapes and said the Agency wanted to destroy them. According to CIA notes taken at the time, the consensus of the group was that the CIA should not destroy the tapes. Addington’s attitude, a participant said, was along the lines of "Don’t bring this into the White House!" The explosiveness of even talking about destroying potential evidence was clear to all. (292)

It was against that background, Mayer describes, which Goldsmith rescinded the OLC memo supporting CIA’s interrogation methods, quit, followed by Daniel Levin’s attempts to write an OLC memo based in law. Then, in 2005, the Administration had Steven Bradbury "audition" to be head of OLC by writing memos again authorizing torture, particularly the combination of interrogation methods. And, in that environment, Congress was considering a ban on torture. Which is when the CIA IG report came into play again.

Further rattling the CIA was a request in May 2005 from Senator Jay Rockefeller, the ranking Democrat on the Senate Intelligence Committee, to see over a hundred documents referred to in the earlier Inspector General’s report on detention inside the black prison sites–the one that had so upset Goldsmith. Among the items Rockefeller specifically sought was a legal analysis of the CIA’s interrogation videotapes. Rockefeller wanted to know if the intelligence agency’s top lawyer believed that the waterboarding of Zubayda and Khalid Sheikh Mohammed, as captured on the secret videotapes, was entirely legal. The CIA refused to provide the requested documents to Rockefeller. But the Democratic senator’s mention of the videotapes undoubtedly sent a shiver through the Agency, as did a second request the made for these documents to Goss in September 2005. (313)

Note, the terror tapes we know of depict Abu Zubaydah and al-Nashiri being waterboarded, not Khalid Sheikh Mohammed. Something to ask Mayer about when she does a book salon at FDL later this month, I guess.

That CIA IG report apparently provides enough detail to make conservative lawyer Jack Goldsmith balk. And, it includes detailed analysis of the now-destroyed torture tapes ( I wonder if Jello Jay has ever gotten to see that analysis?).

Also, I wonder: did Goldsmith ever resolve the dispute between Muller and Helgerson whether or not those tapes depicted illegal torture?

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  1. dopeyo says:

    illegal torture? does that mean we can practice legal torture on any members of this administration found to have violated the geneva conventions?

  2. JohnForde says:

    “But according to someone familiar with the report, the way it had been actually used was “horrible.” (288)

    Who could believe it no horrible even if quick?

    Who could believe it not torture when we had executed people for the exact same act?

    • emptywheel says:

      I suspect the IG report records what Daniel Levin (who surely read the report in detail when he was trying to replace the OLC opinion) said to Congress: KSM was water-boarded hundreds of times.

      • MrWhy says:

        Daniel Levin … said to Congress: KSM was water-boarded hundreds of times

        Hundreds of times? In a period of weeks?
        Do you have a reference for this?

  3. Loo Hoo. says:

    Where are the torturers now? I cannot begin to imagine doing those things to a rabbit, much less to a human being.

    When do the war crimes trials begin?

    • PJEvans says:

      I’d like to contribute to a fund to buy a bunch of government people tickets to the Hague … or halfway to the Hague.

      Maybe we can arrange for the Europeans to do a little rendition?

    • NCDem says:

      I would like for hundreds of citizens who as outraged over this as I to call the WH switchboard and calmly but firmly leave a message for the President that you plan to dedicate the next 10 years to making sure that Bush, Cheney, Addington, Rice, Gonzales, Rumsfield, Haynes, Flanigan, Yoo and Feith are given a fair trial at Hague when the next administration re-connects with the world community and supports the ICC.
      From reading almost half of Mayer’s book which is amazingly well researched, I find the administration’s fear of all binding treaties with the world community to be a key point to explaining the actions of this administration.

      • denny says:

        You’ve read the book too I see, good for you. I hope many thousands of people see what the Bush Administration is doing to destroy our country and our good reputation.

      • freepatriot says:

        Washington and Indianapolis @ Canton Ohio

        8:00 pm eastern, 5:00 pacific (flyover people, do the math yourself)

        NBC

        we get to see a bunch of guys we’ll never see again …

        FOOTBALL IS BACK

        It keeps me sane, okay ???

        • lllphd says:

          well, enjoy. i guess. but, really?

          i mean, saying watching football keeps you sane, isn’t that a little like saying sugar keeps you skinny?

  4. AZ Matt says:

    I just got the Mayers book yesterday so will start reading it. Unless a Congressional committee gets lucky and gets some people talking we aren’t probably going to know much more before the end of the Bush maladministation. However, the truth needs to be made known so the country knows what was done in its name.

  5. skdadl says:

    What would it mean for Goldsmith to have resolved the dispute between Muller and Helgerson? Goldsmith rescinded the Yoo memo, which implies that he agreed with Helgerson that it authorized violations of the convention. Now, to me, that should mean he resolved the question in Helgerson’s favour, but it’s possible that Goldsmith believed at the same time that the memo made everything the CIA did legal during the time concerned — iow, that he also agreed with Muller in that narrow sense. I don’t think that way, but there has been a certain lawyerly logic about maintaining that OLC opinions protect anyone who acts according to them, even if they were unlawful.

  6. masaccio says:

    Multiple waterboardings might explain the quote: “hundreds of hours of videotapes of two U.S.-held Muslim detainees being strapped down and waterboarded”.

    Is there some non-perverted way to justify multiple waterboardings?

    According to former CIA agent John Kiriakou, Abu Zubaydah was waterboarded for 35 seconds before cracking. Wikipedia discusses the waterboarding of Khalid Sheik Mohammed: some sources say he lasted 2 minutes 45 seconds. He says he was waterboarded 5 times, according to Jane Mayer in her New Yorker article. This is disputed by other CIA officers who claim he was waterboarded once, and cracked almost immediately.

    I think Mayer must have meant that the hundreds of hours of interrogation included video of waterboarding.

    • masaccio says:

      Here’s another interpretation. Maybe they had this big ceremonial thing about the waterboarding. They bring the prisoner in, force him to kneel before the torture equipment, say some foreboding things (think the climatic scene in Eyes Wide Shut) in deep tones (maybe James Earl Jones, or that guy that did the old seven-up commercial), maybe some torches…. Maybe the whole thing lasts a couple of hours.

  7. quake says:

    E.W., what makes you so ready to believe the “tapes” were destroyed? Surely not just the fact the CIA says they were? In this digital day and age it’s hard to believe that there aren’t multiple copies lying around in servers all over, not to mention the odd copy on flash memory in a safe.

  8. plunger says:

    Don’t overlook the significance of this story:

    http://americanfreepress.net/h…..l_145.html

    HUGE NEWS!!!

    U.S. WARNS ISRAEL

    Joint Chiefs Chairman Says Another ‘Liberty’ Will Not Be Tolerated

    PRESIDENT JOHNSON COVERS UP FOR ISRAEL:

    http://en.wikipedia.org/wiki/USS_Liberty_incident

    http://www.commondreams.org/he…..023-01.htm

    Cover-Up Alleged in Probe of USS Liberty

    “Why would our government put Israel’s interests ahead of our own?” Moorer asked from his wheelchair at the news conference. He was chief of naval operations at the time of the attack.

    Israel attacked the USS Liberty using UNMARKED AIRCRAFT. This is the single fact which proves Israel knew exactly who they were attacking.

    Moorer, who as top legal council to the official investigation is in a position to know, agrees that Israel intended to sink the USS Liberty and blame Egypt for it, thus dragging the United States into a war on Israel’s behalf. This seems to be a common trick of Israel. Starting with the Lavon affair, through the USS Liberty, to the fake radio transmitter that tricked Reagan into attacking Libya, to potentially 9-11 itself, Israel’s game is to frame Arabs and set them up as targets for the United States.

    The official US investigation is discredited. And with it, every claim of innocence for Israel that relied on the official investigation as a source.

    The real question facing the American people is why the US Government seems more concerned with protecting Israel after they are caught playing these dirty tricks, rather than doing something to convince Israel not to kill any more Americans.

    http://www.whatreallyhappened.com/ussliberty.html

    “Evidence linking these Israelis to 9/11 is classified. I cannot tell you about evidence that has been gathered. It’s classified information.” — US official quoted in Carl Cameron’s Fox News report on the Israeli spy ring and its connections to 9-11.

    http://www.informationclearing…..le7545.htm

  9. jaundist says:

    While I’m perfectly willing to believe that the original digital video tapes used in the cameras to record the torture porn have been destroyed, the digital copies of that horror are probably littering numerous hard drives of those responsible to this day. Maybe one will reappear at a trial in the Hague much like the first appearance of “The Alien”.

  10. skdadl says:

    This is undoubtedly in EW’s liveblogging of the hearing as well, but here is what Levin felt he could say to the HJC:

    I’d be happy to try to answer any questions you would have, but if I could just add one point. As a witness sitting here in a hearing, I feel like I have some obligation to say something about this. And I’m very limited, I think, in what I can say.

    But if the subcommittee has been informed that there was a total of three minutes of waterboarding, I would suggest the subcommittee should go back and get that clarified, because that I don’t believe is an accurate statement.

    • skdadl says:

      Oh, I don’t necessarily think you’re wrong — what Levin said was very ominous, just cryptic.

      Laura Rozen reminds me of one affecting detail about that hearing that I had forgotten. Levin brought his little daughter to it. I don’t know how old she is, but she must be pretty young because he made a joke about hoping she didn’t interrupt things. But he wanted her to be there, which suggests he was proud to be testifying, restricted though he was, and wants to be able to tell her about that in years to come.

  11. JohnLopresti says:

    I saw mention of EdWhelan as a leader in olc in an article discussing 2004-2007 events. Maybe his tenure was too late to have seen the (transitory) copy of the IG’s report. Another item I would wonder about is what the House’s mechanism is for reviewing its appropriations power when writing funding for individual programs in the secret law it passes every fiscal year to fund spy agencies; e.g., if only the G8 may see even vaguely descriptive explanations of what programs they are budgeting. Placing the power of the purse in the chamber whose membership has a biennial renewal cycle must complicate intell agencies’ approach to assuring continuity of key activities. I can understand Rockefeller’s cautious approach to the liabilities involved in his signing off on secret activities, though the Senate is a more stable outfit in that perspective than the House, given the former’s longer term of office. It seems the very tenuousness of the continuity of funding issue is one more factor favoring keeping cloak ops as legit as feasible.

  12. alabama says:

    I believe that torture by the U.S., in Iraq and elsewhere, continues on a daily basis; that it is practiced by contractors; that it goes unrecorded; that it is lethal; that it occurs on a far greater scale than anything yet reported; and that reports of such torture will first appear in Arabic on Arabic television. In fact, I’m prepared to believe that such testimony already circulates as an efficient device for recruiting suicide bombers.

    Am I in error here? If so, the government could easily prove it, by furnishing positive evidence that contractors are vigilantly and effectively policed to prevent such things from happening….

  13. alabama says:

    An afterthought to @20: since outsourcing torture is the obvious way to go, Bush himself must have forced the CIA to do the counter-intuitive thing. And since the man is a compulsive sadist and a shallow operator, I can believe that he demanded those tapes in person, and for his own personal gratification.

    If Bush differs from Hussein, he does so in style rather than substance.

  14. Neil says:

    FYI,

    Justice Robert H. Jackson Conference:
    Planning For The Prosecution Of High Level American War Criminals
    September 13-14, Andover, MA
    http://war-crimes.info

    Philippe Sands, University College London and author of “THE TORTURE TEAM”
    Vincent Bugliosi, author of “PROSECUTING GEORGE W. BUSH FOR MURDER”
    Joshua Dratel, Esq. and Co-Editor of “THE TORTURE PAPERS”
    David Lindorff, Journalist and author of “THE CASE FOR IMPEACHMENT”
    Ann Wright, author of “DISSENT”
    Lawrence Velvel, Dean, Massachusetts School of Law
    more presenters

  15. MadDog says:

    Also, I wonder: did Goldsmith ever resolve the dispute between Muller and Helgerson whether or not those tapes depicted illegal torture?

    Given this statement in that NYT Doug Jehl story:

    The agency said in a written statement in March that “all approved interrogation techniques, both past and present, are lawful and do not constitute torture.”

    I’m guessing that if Goldsmith himself didn’t personally provide the written resolution of the dispute, one of those curious and cryptic lil’ footnotes showed up in Goldsmith’s opinion that the CIA folks could point to as “See, right there! It says we’re legal.”

    Footnote author? Take yer’ pick:

    Fredo, then AG, but in name only,
    Harriet “Ah jes luv me sum Junya” Miers, then WH Counsel,
    David “Anything for my CIA homies” Addington, Consigliere to the real Godfather,
    Heck even Kyle “Who, me?” Sampson.

  16. wavpeac says:

    Call me a cynic…and not that Levin deserves my following comment, but in regard to his bringing his young daughter to the hearings….

    or did he just wanted to make sure that his daughter understands that when he says she will be punished for disobedience…he means it.

    Why in the name of god would you want any child to hear about or be informed about how the U.S gov’t used torture? especially if you were on a committee supposedly overseeing the process?

    Ugh.

    • lllphd says:

      i actually assumed he brought her along to insure that specific details were not mentioned, as i got the impression he did not want to talk about them, and felt legally he could not.

      and also maybe for the reason he said. he went out on a limb, which took some courage. but still, it is a little weird.

      • wavpeac says:

        Okay…call me a over sensitive therapist…but do you all use your children in this way?

        He knew what would be discussed, and then at the risk of his child’s mental health, brought her along in hopes this would defer details of the discussion. For me, that’s at the least a yellow flag about a father not putting his daughter first…but that’s why every one shuts up at a party when I say what I do for a living sooooo….I’ll just whistle and move on.

        I do try to avoid judgments but I can’t imagine a scenario where he did this for HER good, can you??

  17. stryder says:

    There is a house armed services committee hearing on cspan about the detainee trails.Daniel del orto is testifying

  18. MadDog says:

    And I just luv me some commentary from our bubbly Dana “Pig Missile” Perino:

    Q Just one more. If there — Senator Durbin is calling for Justice to investigate whether there is — whether the destruction represents obstruction of justice. Is there any White House comment on whether that might or might not be the case?

    MS. PERINO: I saw that they made that request. I know that the CIA Director is gathering facts and our White House Counsel’s Office is supporting them in that. Whether or not there is going to be an investigation to that scale will have to be determined by others.

    Q Dana, is this something that you would characterize the President’s feeling about — is this something that’s sort of seen as understandable, or is this something that you’re embarrassed about?

    MS. PERINO: I would say that the President supports General Hayden. General Hayden made a statement yesterday to his employees in which he said that the decision was made by the agency, it was made in consultation with the agency’s lawyers. And he said — and I quote — that “the tapes posed a serious security risk and were they ever to leak, they would permit identification of your CIA colleagues who had served in the program, exposing them and their families to retaliation from al Qaeda and its sympathizers.”

    He has complete confidence in General Hayden and he has asked White House Counsel’s Office, as I said, who is already in communication with the CIA General Counsel as the CIA Director continues to gather facts. As you know, General Hayden wasn’t there at this time, either

    ~snip~

    Q Can you elaborate on what the role of the White House Counsel’s Office is in this?

    MS. PERINO: Well, they’re the appropriate — the CIA General Counsel’s Office is the one that is helping to gather the facts for General Hayden. And so it’s appropriate that our Counsel’s Office be the ones that are communicating with them.

    Q So just a — you’re saying it’s just a legal liaison between here and there, or is the White House Counsel’s Office helping the CIA get its story together on this?

    MS. PERINO: They’re helping them gather facts. We said we would support them in that.

    Sure. Just the facts ma’am. No spin. Just the facts.

  19. Rayne says:

    Addington didn’t want this coming to the White House. Did it?

    May 21-23, 2005 (no OVP emails): Unless Scalia gave his duck hunting buddy a heads up that SCOTUS was not going to review Judy and Cooper’s appeal more than a month before SCOTUS announced this publicly, I can think of no Plame-related leak coordinating with this date.

    These missing emails didn’t appear to coordinate with the Plame affair; perhaps they correlated to Rockefeller’s request related to the tapes?

  20. bmaz says:

    Random Musings from a tortured mind:

    1) I’m ready for some football. Preseason ain’t it, wake me when the real games start.

    2) The critical conclusion nobody has touched on yet: It is pretty damn clear, is it not, that the whole “we destroyed the torture tapes because they had no evidentiary value” was flat out perjury. Of course that is assuming our brilliant committees actually bothered to put anything under oath, and I cannot recall on this issue. If history is a guide, they probably didn’t. For starters, the IG report itself was an official investigation; video and audiotape has never been, in any setting, considered in any way to be analogous to handwritten notes that can be merged into a report; it stands on it’s own and must be preserved. Destruction of the tapes was destruction of material evidence germane to the IG report, at a minimum. However, as I have maintained from the start, the tapes were material evidence as to the detainees on the freaking tapes, Zubayduh and al-Nashiri. Now we can cap that with the fact that they appear to be material and germane to a specific request from the Chairman (ranking member depending on time frame) of teh SSCI. Then there are all those pesky other court cases where they might be relevant as pattern and practice evidence, if not for statements made on the tapes about other detainees that may be on trial (one as we speak). The tape destruction IS a smoking gun. Where the fuck is Bull Durham??

    3) Good ol Captain Jack, he of the Law of the Sea. Once again, you can count on the round mound of redoubt to finally grow a backbone and conscience when, but apparently only when, his own ass is on the line. Same as in the wiretapping mess vis a vis FISC. What a hero. He didn’t give a flying fornication about the torture when the description and knowledge of it could be contained; but when the cat escapes the bag, Katy bar the door cause Captain Jack is running for cover. Very admirable. “As Goldsmith absorbed the details, the report transformed the antiseptic list of authorized interrogation techniques, which he had previously seen, into a Technicolor horror show.” Please; this just insults human intelligence. He never realized before that the “antiseptic list” comprised physical and emotional abuse that was going to be applied to actual humans by emotional and raging people in a war setting? This is pathetic gruel, but typical of these asshats. Who could have predicted? A freaking amoeba that’s who. I guess he gets one microscopically thin reed of credit compared to the criminals that stayed with the torture program, but that’s about it.

    4) “Why didn’t someone say, ‘Stop!’”? Indeed. Why isn’t anybody still asking that question, and in a criminal courtroom?

    5) Muller, Addington, Gonzales and Yoo’s facts could be substituted in for the legal enablers tried at Nuremburg and not one word would have to be changed in the process; still, nobody in the media or public seems to grasp this. It is not just analogous, it is dead on point. Oh, and Bradbury is a member of this club too.

    6) “I wonder if Jello Jay has ever gotten to see that analysis?” No kidding; me too. Strange, the one who doesn’t appear so concerned is Jello Jay. You would think he would be going Sam Ervin on this, but crickets. Another shocking moment for Captain Renault. There are so many….

    7) Nancy Pelosi and Steny Hoyer are treading, literally, on being traitors to their country for their refusal to fully do that which the Founding Fathers contemplated being done in order to protect the ethos and viability of the country and Constitution. It is a harsh statement, but there really is no other way to look at it at this point. Instead, they “compromised” and let us “have” that Not Impeachment Lite happy horse manure with Vince Bugliosi. They might as well have put Bert, Ernie, Big Bird and the rest of Sesame Street out their with Bruce Fein as he tried to matriculate the ball down the field.

    • masaccio says:

      re your point 2: we know the tapes are relevant. Judge Allred wrote in his decision denying admission of some of the coerced statements:

      Statements made where the “degree of coercion inherent in the production of a statement offered by either party is disputed, such statement may only be admitted” if the military judge determines, after a hearing, that (1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (2) the interests of justice owuld best be served by admission of the statement into evidence.

      The Judge cannot decide this question without the tapes. We know they exist. The Government takes the position that if time passes after torture, and the guy says the same thing later, then it is admissible. Judge Allred seems to buy that view, despite its obvious flaws.

      Anyway, how the heck do they think they will be able to try KSM? They have admitted he was waterboarded, and that it was on tape, and that they destroyed the tapes. How can any interrogation be admissible?

  21. wavpeac says:

    Okay, i have never found the article I asked about the other day, but is there any way to start a movement against Pelosi to pressure her into real oversight??

    How is “impeachment off the table” not a dereliction of duty? At first I thought this might be a ploy of some sort with a plan behind it. Now it’s clear that there was no plan other than to obstruct justice. Is there any evidence of wrong doing or that Pelosi took impeachment off the table to protect herself? If she did wouldn’t this be an ethics violation of some sort?

    I mean, now all we have learned since she first said it, the audacity of her statement is beyond the pale.

    • victoria2dc says:

      Okay, i have never found the article I asked about the other day, but is there any way to start a movement against Pelosi to pressure her into real oversight??

      How is “impeachment off the table” not a dereliction of duty? At first I thought this might be a ploy of some sort with a plan behind it. Now it’s clear that there was no plan other than to obstruct justice. Is there any evidence of wrong doing or that Pelosi took impeachment off the table to protect herself? If she did wouldn’t this be an ethics violation of some sort?

      I mean, now all we have learned since she first said it, the audacity of her statement is beyond the pale.

      [email protected]

      Please contact me at victoria2dc at gmail dot com – let’s talk. I have a plan I’m working on. I can use some help.

      I’ll be waiting to hear from you!

  22. alabama says:

    bmaz, though you don’t mention Bush, I can see that his name might come up under #4, as thus: “No one says ‘Stop!’ to the Deciderer!’”

    If we don’t come to grips with that one guy, and with our own relationship to that one guy–as with regard to the fact, say, that he always seems to sit somewhere outside the perimeter of the legal labyrinth–then we lose sight of a constant reference-point, and we also, rather improbably, give a bit of credence to the idea that he’s beyond the reach of the law (or the laws). And since I, for one, tend to think in that way when not thinking–propaganda working its ways on me as much as on anyone–I really have to “will” him into the picture, squarely, as thus:: Cheney and Liddy and Addington are his courtiers; they have the independence that any courtier would have, which, in the actual scheme of things, is none at all (not that they don’t have the license to push folks around).

    • bmaz says:

      Oh, yes, absolutely Cheney and Bush should get the Nurtemburg treatment. The reason I did not include them there was that my comment was, for the instant discussion, limited to the legal enablers. Unfortunately, Hitler wasn’t tried, but his legal beagles were in a system we devised and led, so the coupling of this situation to that is very powerful.

  23. FrankProbst says:

    bmaz, you still here? Here’s the latest AP article on Duley/Ivins:

    http://news.yahoo.com/s/ap/200…..JdUFus0NUE

    This is just getting more and more bizarre. If the FBI has answering machine messages from this guy, they need to publish them pronto. Duley makes Ivins sound like Jason from the “Friday the 13th” movies. Who the hell was feeding her information?

  24. stryder says:

    As Goldsmith absorbed the details, the report transformed the antiseptic list of authorized interrogation techniques, which he had previously seen, into a Technicolor horror show.” Please; this just insults human intelligence. He never realized before that the “antiseptic list” comprised physical and emotional abuse that was going to be applied to actual humans by emotional and raging people in a war setting? This is pathetic gruel, but typical of these asshats. Who could have predicted? A freaking amoeba that’s who.
    well said
    Your buddy,Bugliosi,is on book tv

  25. denny says:

    I have almost finished Jane Mayer’s book”The Dark Side” and I decided someone on line would have to be writing about this very important book. I shouldn’t be surprised that emptywheel would be the one. I hope Cheney, Addington, Haynes, Gonzales,Yoo and all the other evil people in the Bush Administration go before a war crimes tribunal someday soon.

  26. Mary says:

    EW – I may be the only one, but I really think that when you are accumulating the 2004 IG DOJ solidicted torture report, the March 2004 issues on the illegal DOJ backed domestic wiretap program, and Abu Ghraib, as the items on Goldsmith’s list, you might-should add the late (22) Jan filing of Maher Arar’s lawsuit
    http://ccrjustice.org/files/Ar….._FINAL.pdf
    against, among others, Ashcroft and Thompson, for their roles (Thompson’s relatively direct role – days after his torture field trip to GITMO he was signing off on the paperwork to send Arar to Syrian torture)in Arar’s torture. Here’s a 60 minutes transcript link on Arar as well:
    http://www.cbsnews.com/stories…..4974.shtml

    And as an overlay to all these things Goldsmith was finding out, he was fully aware that Clement, on behalf of the Dept and the Administration (and despite the contrary knowledge of lawyer after lawyer after lawyer after FBI agent after FBI agent after FBI agent etc.) had gone told the Sup Ct, on behalf of the Dept and all its lawyers, something that was completely untrue.

    And finally, that all of them, Goldmsith, Ashcroft, Comey, Philbin etc. knew that all these things were beginning to ooze out in an election year – and that how they handled them would impact on what Americans were allowed to know going into that election, and on whether or not they would be able to effectively provide cover for “their own” which has seemed to be about the only thing DOJ is concerned about or effective at for the last 8 years.

    In addition to reading the IG report, remember that Goldsmith’s pre-OLC role was as a special counsel to torture boy Haynes (and it was in that role the got his GITMO field trip badge IIRC) and Alberto Mora had been POUNDING on the Haynes with the info that all these things were not just and antiseptic list, but a petri dish of pathogens. There’s almost no way Goldsmith didn’t know about some of the Mora/Rumsfeld/Haynes showdown before he ever read the IG report, and know that it was confirming what Mora was telling them in the abstract would happen, and what Mora was telling them was also happening within DOD at GITMO in the concrete.

    I still go back to the recommendations to bury people alive as an “interrogation tactic.”

    37 – Re your point # 2, they were also material and germane to the cases of others who were being picked up, detained, disappeared, tortured etc. based on the statements made in those interrogations. And in Padilla’s case, the relevance of the treatment of Zubaydah and the credibility of his statements was raised from the git-go by counsel in front of – – – Mukasey, in his then-status as Dist Ct Judge. And amen on your point #3.

    You have, back in Jan of 2002, Gonzales as WH Counsel writing that the things they have already done and will be doing are likely to come under investigation as possible charges under the War Crimes Act.

    Where, then, are the lit hold directions? Think of memo after memo advising of potential criminal liability (Mora at DOD was another early on heads up) and then think of the numerous lawsuits filed and criminal cases being pursued by Gov against people like al-Marri and Padilla where, equally early on, the issue of interrogation of “sources” was raised, and then things like the IG report as well, and never – NEVER – lit holds going out?

    Imagine if DOJ was investigating a company or individual and that entity had such reams of actual litigation and warned of future litigation with never anyone advising documents be preserved? OPR hasn’t been all that concerned about that issue, has it? After all, lawyers in DOJ have a different standard. They apparently take oaths to the Presidency and to each other that supercede mere law and morality.

  27. alabama says:

    [email protected]: are you including G.W.Bush along with Cheney, etc.? This is the name that keeps dropping away, as if the term “Bush Administration” could serve as a substitute for the proper name of that one and only person. And bmaz, are you supposing that Bush, like Hitler “might could” drop away from a Nuremburg-type trial? This really is a legal question: if it can be shown that Bush personally ordered the torture of prisoners (along with the filming of the torture process itself), and did so over the initial resistance of at least some subordinates, could he be tried in a court of law? If he can, then he should be named, repeatedly, as one of those beagles you mention, be they lawyers or otherwise.

    It interests me that I consistently hesitate to raise this point at all: clearly I’ve been programmed to suppose that it’s always and forever somehow “off topic”. But no, it’s not “off topic”: it’s The Topic.

    Bush, unlike Hitler (or Cheney, Rumsfeld, or even Addington), has a self-effacing style, and so he’s hard to “demonize” (as we sometimes call the naming process). But if anyone merits being “demonized,” Bush is who it is.

    • bmaz says:

      No no no. I was not addressing Bush at all here, my point here was strictly limited to the lawyers that allowed and enabled Bush an Cheney to do this. Bush and Cheney were not lawyers, so I did not include them in my limited analogy.

  28. rosalind says:

    new AP article up. (are we still not linking directly to AP? i read it over at salon):

    “The new genome technology used to track down Ivins was either not available or too expensive to use often until about three years ago.”

    (bold mine) too expensive? they didn’t do tests that could’ve solved the case cause of budgetary concerns?

  29. alabama says:

    [email protected]: it’s agreed, most certainly, that the lawyers “enabled Bush and Cheney to do this”. But since “enabling” goes both ways, we’d have to imagine what it was that Bush and Cheney enabled the lawyers to do–an enabling beyond bribing, seducing, or coercing….

    Though it’s hard to push forward here, let’s imagine that not a few lawyers like to break the law, even if they need to be “licensed,” as it were, in order to do so (by a President, for example). Theirs would be a deep, if unspoken, contempt for the law, beyond resentment or a need to be clever.

    But if this hypothesis is to have any value at all, it would have to let the law be seen as a thing that inspires a kind of hatred. We would have to ask Scalia, or Yoo, or Libby why they hate the Law (not just this or that law with which they disagree). It would be a matter of wanting to break the law, as one might want to break an arm or a windowpane. Call it a kind of “vandalism”–a will to destroy. As one destroys the families and the households of Iraq.

    After all, a really strong “Nuremburg Trial” would need an ethical context of sufficient generality to cover a wide spectrum of misdeeds, errors of omission as well as commission: the destruction, not just of Iraq and other countries, and not just of individual human beings, and not just of codes forbidding torture, but of such precious cultural artifacts as an entire bureaucracy (civil and military, namely our own), a support network for the poor and frail and for the environment, not to mention whole cities (New Orleans, and also New York–if you regard 9/11 as an instance of dereliction).

    Even, therefore, if this judicial proceeding were confined to war-crimes and violations of human rights, one would still want to know why these people would want to vandalize an entire civilization…. Unless, to the contrary, and rather shockingly, they themselves actually embody that “civilization” in the most exemplary possible manner (thus Herman Melville’s question in Israel Potter: “What separates the enlightened man from the savage? Is civilization a thing distinct, or is it an advanced stage of barbarism?”)

  30. JohnLopresti says:

    separates…from savage…Moderns as a senescent stage of aboriginal peoples at balance with earthly surroundings, with an accretion of spice trade, silk, tea, tobacco, Beamish, cotton, cellphones, bronze, stirrups, MIRVs, common article 3 of the Geneva conventions. Though DLithwick this week avowed the difference in modernity, what sets us apart, is television. I have read some of the material which seemed elusive to ew, recently, too, that news seems to be reporting incrementally more instances of waterboarding and other brands of torcha of several of the administrative detainees; though it has become so commonplace to read this now, compared to in 2007, that I have skipped saving any of it to file, so, remain linkless in that respect. Perhaps the numbers are in Carol Rosenberg’s papers, but I think not, as her missives likely are filtered by censors, just as her audio of the sessions in the acoustically isolated observer room are.

  31. JThomason says:

    Its a treacherous time. Torture is condoned and Michael Vick is in jail on dog fighting charges. Justice is not the issue. The issue at hand is power.

    • Neil says:

      The periodically maligned Vincent Bugliosi made a similar point on a rebroadcast on c-span today. He talked about intimidation by those in power and how so many people across the country do not feel safe anymore.

      • JThomason says:

        Isn’t it odd that in the context of an administration that gives lip service to deregulation the mortgage relief act funds states to purchase distressed real estate and likewise the discussion of off shore drilling imagines the states as principle economic beneficiaries of this activity. The coercion of the public under the thumbs of governing bodies will only become worse as they increase their economic power at the expense of the public. A friend of mine in his 60’s has been ticketed two times in the last month in Santa Fe under a police program called “100 days of Summer.” Once on a minor speeding violation and once for not wearing a seatbelt. He called it a fascist state reaction to the terrorist threat. Tongue in cheek I suppose. I understand traffic prosecutors in Memphis are routinely dismissing all charges merely assessing court cost as a favor to constituents to hold down insurance premiums. The prosecutors are defrauding the companies entitled to legislatively mandated premiums. What does this have to do with the public safety? Think about it. And with government lawyers being sophisticated and clever for the sake of power rather than in the pursuit of justice, there is really no going back. Its rather pitiful that their morality has become so secondary to status and garnering the approval of their masters lacking any notion of professional independence.

        And the previous thread touched on some of these themes as well. Not to say that judicially mandated psychological intervention does not have its place but I have seen it work in the context of family law as an effort to in effect predetermine suspected criminal behavior and mandate acceptance of coercive authority. It harkens to the question that Alice Miller raised concerning the power of psychological growth: it is possible where the therapist moves beyond the mere witnessing of psychological truths and sets an agenda of appropriate response? The mandated agenda is to ameliorate the effects of abuse rather than to morally resolve them. And the handing out pills like candy as part of programed social reeducation is just oh so Brave New World. To say the least: all part and parcel of the neo-feudalism.

        So getting on to the fiction, non-fiction discussion I have been mulling over in the back of my mind most of the weekend, I agree that the issue is not about the truth or falsity of text but at the very least no matter the temporal or social milieu creative imaginative thought in fiction and mythology is a moral exercise permitting the contemplation of actions and results without risking consequences. And surely as such it an exercise that is a precursor to action. And the entertainment of this capacity in the context of principle and experience is what gives rise to both freedom and justice in the long run. If emergent critical editorial bias is against this exercise it is because there are factors favoring a certain order at work. And to the extent that fiction has evolved into forms of allegory, or roman a clef, or popular serial in response to strict censorship its nature is only exemplified. The fundamental necessity of the expression of these instincts is why no permanent state of repression has arisen in human affairs though the cost of the conflicts where freedom has sought to throw off the shackles of violent coercive oppression have been great. I am afraid that any self-correction in the United States at this point will be characterized by great upheaval or maybe we are at a watershed where we are given a choice between civility and hope and cruel power seeking mockery. In any event we are at a low ebb and there is the possibility that the tide will not come back in this time.

    • rteolis says:

      I’m right there with you. Heard it said very well once that the Repubs were focused on retaining power, not governing. Governing was an afterthought as evidenced by all the laws that had to be re-written, sprinkled with pixie dust and justified by unsupportable legal arguments through multiple appeals that couldn’t even make it past their own hand-selected judicial appointees. The arrogance amazes me. Their own self deception and stupidity is what will likely cause them to face justice in the end. My greatest fear is the enabler Dem leadership who also fear losing power and have likely cut deals that have resulted in the inaction we’ve seen to date.

      • Hmmm says:

        …Heard it said very well once that the Repubs were focused on retaining power, not governing. Governing was… an afterthought…

        It’s recently become crystal clear that this is exactly how Congressional Dem leadership — Pelosi in particular — thinks. See all Pelosi’s public statements since NetrootsNation, the totally blunt POWER!!! themes in her book, and especially Glenn Greenwald’s piece here.

        • bobschacht says:

          This is exactly what upsets me about Pelosi and the current leadership team.

          I’ll bet they figure that they can get President Obama to forgive and forget their past offenses and pretend everything is OkeeDokee. My hope is that they be, at least, stripped of ALL leadership positions and assigned the same rank as newly elected members. And if they are guilty of complicity in War Crimes, they deserve to be charged and hauled before the Hague.

          Bob in HI

  32. Mary says:

    From a good review of Mayer’s book, by Alan Brinkley in the NYT

    Some of the interrogators had no qualms about what they were doing and welcomed being unconstrained by any laws or rules. “It was the Camelot of counterterrorism,” one officer later told a journalist. “We didn’t have to mess with others and it was fun.”

    That kind of bizarre conflation – beating an innocent cabdriver until his legs pulverize and he dies in agony with being a Knight in Camelot – pretty much says it all about those involved and those who have covered for them for years and will continue to do so.

  33. dopeyo says:

    i remember back in the early days of the bush administration, there was a big push to cut the U.S. free from the ICC. Someone asked me “what do you suppose they’re planning that the ICC might object to?”

    Was it the war, the renditions, the torture? It’s hard to imagine this crew planning outrages that far in advance, but according to results it was all of the above.

  34. Neil says:

    Pig(skin) in a poke?

    Ari Fleischer was hired by the Packers as a media consultant a month ago. Maybe he was behind the wording of this statement. It’s fitting because this has been an extended and extreme case of office politics, with Favre whipping a figurative political football at management’s head.

    Favre Is Back, but Will It Be With the Pack?
    By Toni Monkovic
    NYT 5th Down
    August 3, 2008, 7:09 pm

    (h/t Pat Fitzgerald)

  35. bobschacht says:

    EW,
    Excellent research! Excellent questions!

    But please help me here– What is the subject of the following sentence? In particular, who is it that “quit”? Goldsmith, the person buried in the relative clause?

    It was against that background, Mayer describes, which Goldsmith rescinded the OLC memo supporting CIA’s interrogation methods, quit, followed by Daniel Levin’s attempts to write an OLC memo based in law.

    Thanks for all you do! Now to read the comments.

    Bob in HI

  36. BayStateLibrul says:

    What would Yogi say?

    “The Olde Towne Team now should be called the CPA’s, because, as creations of Theo Epstein and his stat guys, they attack every at-bat with a penchant for numbers that excites people at the Wharton School.” Globe

  37. klynn says:

    OT this AM:

    Juan Cole is worth the read…A big solar energy discovery…SOme comments on Think Progress’s report on Hersh’s story about Cheney and his schemes to provoke Iran with bmaz’ favorite…Filipino Monkey…

    And of course some great insight as to how the Right tries to control the narrative…

    http://www.juancole.com/

    • behindthefall says:

      Mmmph. How did that ’social worker’ even manage to get or hold a job? Not that anything of the kind ever could have happened, of course, but she does seem to have the kind of background which might make her vulnerable to an offer of a ‘deal’.

  38. wavpeac says:

    Well, our guts about her lack of professionalism were right on. How the hell was she allowed to do a substance abuse group with active addiction occurring in her own life. That is grounds for a lawsuit by Ivin’s family or atty. This changes the scene for me significantly. It makes me wonder what her hiring resume looked like and who did it for her.

    She is clearly actively in the disease and practicing. Two DWI’s??? That gets printed in papers. No one I know in my state would be allowed to practice without an inpatient stay, treatment, and some time off. She would be extremely easy to manipulate and her out of control fear and paranoia about the case show the disease in progression. (alcohol numbs the frontal lobe and lights up emotion mind). She was impaired. Now her break of confidentiality could be of legal significance. All anyone would have had to do was plant the seed.

    Fishier.

  39. klynn says:

    BTW, that threat call she received in mid July, was it really Ivin’s or just made to sound like Ivins? I mean the call did happen after FISA failed. How many calls did they record on Ivins? Recordings which could make a great number of sound bites to piece together for a tape to play that just might make a diseased lady easily manipulated by fear?

  40. Neil says:

    The point is that nobody should have any opinion on that question [Ivins the sole anthrax killer] — one way or the other — until they see the FBI’s evidence.

    Glenzilla

  41. behindthefall says:

    re 85 & 87: Both comments use the word ‘
    manipulate’. Interesting. That would be a ‘hands off’ way of setting up a backstory for the PR about Ivins. BTW, exactly how did Ivins get hooked up with this ’social worker’? A rather odd tree to have fallen across his path.

  42. Neil says:

    How about this comment in Larisa Alexandrovna’s post

    The FBI showed his clinically depressed daughter, who was institutionalized in a mental hospital, photos of the anthrax victims, and said “your father did this.” They offered his son $2.5 M and a sportscar if he would “rat” on his father.

    Bruce could not stand stand up to the constant harrasment by the FBI…

    Posted by:Dr. Gerry Higgins | August 04, 2008 at 07:02 AM

    • behindthefall says:

      So I quess the question you have to ask yourself is, “Would people who would do such things to Ivins’ children also find it, what, possible? permissible? necessary? to fake a suicide?”

    • wavpeac says:

      Oooo. I have been trying to figure out the brothers response in this. What gain would their be for him to say such negative things about his brother. I mean, even if you have a strong sibling rivalry going most folks would need some sort of mojo for saying the kind of things the bro said about Bruce.

      My sense of him was an impaired person (which supported the idea that there were mental health issues in Ivin’s family of origin) and that he was likely in need of money. A needy person. (guts…not facts here). I kept thinking what was in it for him to dog on his brother like that?