Whitehouse: Laying the Groundwork for the Torture Case

KeithO had Sheldon Whitehouse on this evening to set up his torture hearing tomorrow (10 AM, and yes, I’m liveblogging it). Here’s what Whitehouse said he hopes to accomplish tomorrow.

I hope what America will learn is that the facts that were alleged in the torture memos are very likely not true, the legal theories were contested even by Bush Administration lawyers who weren’t in on the fix, and a little bit about what the consequences are for lawyers who commit professional malfeasance.

I explained how Ali Soufan has (and will) shown that "the facts that were alleged in the torture memos" are not true here:

Ali Soufan, the FBI interrogator described in the DOJ IG report on interrogation as the interrogator (whom they call "Thomas") who called CIA’s tactics on AZ, "borderline torture," has an important op-ed in the NYT. He writes,

One of the most striking parts of the memos is the false premises on which they are based. 

I pointed this out myself, in a post on why the debate over whether these techniques were necessary and effective is so heated.

Check out what the second paragraph of the Bybee Memo says:

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United Stares or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an "increased pressure phase." [my emphasis]

Here’s what Ali Soufan says:

It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.

And here’s how Philip Zelikow contested the legal theories in the memos.

Zelikow, with a background in this area of law, wrote a dissent to the torture memo ripping its legal analysis. Significantly, Zelikow hit on one point that Congress was hitting on too: the importance of the Eighth Amendment in our compliance with the Convention Against Torture. As Zelikow apparently pointed out, the case law surrounding the Eighth Amendment said that even these detainees were entitled to protection from cruel and unusual punishment.

As a reminder, here’s all that Bradbury had to say about the Eighth Amendment in his memo:

Because the high value detainees on whom the CIA might use enhanced interrogation techniques have not been convicted of any crime, the substantive requirements of the Eighth Amendment would not be relevant here, even if we assume that Article 16 has application to the CIA’s interrogation program. 

Zelikow describes the logic of Bradbury’s stance this way:

The underlying absurdity of the administration’s position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail. 

In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest — if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

I’ll leave the "consequences … for lawyers who commit professional malfeasance" to the former US Attorney and AG of Rhode Island. (Actually, Whitehouse has three law professors showing to talk about this last bit.) 

But keep in mind, as you’re following along tomorrow, that this is all just a preface to the OPR report.

39 replies
  1. Loo Hoo. says:

    I’m sooo happy you’re liveblogging it! That’s one reason I sent the big bucks your way, EW. (well, okay, maybe wasn’t so big, but it’s the old college try!)

  2. PJEvans says:

    Yesterday at TPM, they had a reader comment frontpaged – it’s still there – that contained this wonderful bit:

    Somebody needs to superimpose the timeline of the Iraq run-up over what we know about the timeline of the torture program. Anywhere Cheney, Iraq and torture meet is going to be radioactive.

    This must be the place for that timeline ….

  3. MadDog says:

    But keep in mind, as you’re following along tomorrow, that this is all just a preface to the OPR report.

    And the CIA’s OIG Report!

      • MadDog says:

        And the DOD photo dump on May 28.

        Maybe yes or maybe no. *g*

        The official Repug propaganda arm, Faux News, referenced this today:

        …Lieberman and Sen. Lindsey Graham, R-S.C., urged President Obama in a letter to “fight” the release of the photos.

        White House spokesman Robert Gibbs was noncommittal about the president’s position.

        “We are working currently to figure out what the process is moving forward,” he said.

        Asked if that means the decision could be reversed, Gibbs said, “I don’t want to get into that right now…”

      • drational says:

        He is the prosecutor who did not know the statute of limitations was expiring on the warrantless wiretapping crimes. Maybe he was focused on torture, but still.

        It will be interesting to hear Soufan under oath, as the Goopers will certainly elucidate the early Zubaydah timeline. They have contrasted his Times editorial with the DOJ OIG report.

        This will be a good one.

        • bmaz says:

          Yes, but only people that were literally neck deep into al-Haramain were really up on that. There were lawyers involved in the Consolidated cases, that represented parties other than al-Haramain, that were not even paying attention to that. Whitehouse was not a prosecutor at the time, I can give him a pass for not knowing. I am more concerned that he never seemed overly motivated once he was apprised of the fact face to face.

    • bmaz says:

      Well, as to that specific point, i.e.

      “consequences … for lawyers who commit professional malfeasance” to the former US Attorney and AG of Rhode Island. (Actually, Whitehouse has three law professors showing to talk about this last bit.)

      that really is more the OPR report. But, no question, with the right lead up (and Whitehouse looks loaded for bear to me), the OPR followed by the OIG are going to be game changers. It will be up to us to lay the wood to the traditional media to fully understand the depth of the information and necessity for taking it forward. If we let them be lazy and “fair and balanced” we will still lose. There have been big inroads in the last few weeks, led by Marcy’s KSM 183 post, but there will need to be a lot more.

  4. behindthefall says:

    Do you suppose prayer will help? I hope that we have been given the right man in the right place at the right time, and that he doesn’t back down.

    • bmaz says:

      Naw, I think they will come. Looks like the same play that was made on the OLC memos. Give everybody their say, act like you are leaning their way and then release the suckers. You know, that chess stuff.

      • emptywheel says:

        Haha! Chess!! From bmaz!

        Yes, that’s precisely what I was thinking.

        Though I was also thinking that we have reported confirmation that sustained outrage is being, um, sustained, so a May 28 release may not fit the interests of the chess master anymore.

        • bmaz says:

          Thought that would light you up. Thing is, this is a test of the big chess theory. If Obama really is chess gaming this broader subject, i.e. per the rollout schedule of the OIG Report etc., then the visuals must certainly be part of the effort. It all strikes me as part and parcel if that is indeed what is going on.

          • Jeff Kaye says:

            Remember, though, if we play chess, they play chess, too. IF they took out al-Libi, that was one piece removed from the board. One wonders what their next moves might be.

        • bobschacht says:

          The Senators are all political chess players. Well, I take that back. Some of them are at max capable of checkers. Of those who are chess players, most of them are wimps or cuckolds. But at least they tend to look at the long haul more than Representatives. Whitehouse and Leahy are both political chess players. They, and Obama, are letting the cat out of the bag, one paw at a time. And you can guess that once three paws get out, things are gonna start getting a bit wild.

          The set of 4 torture memos was one paw.
          The OPR report is going to be the second paw.

          Bob in HI

      • MadDog says:

        I’ve actually not got a surfeit of optimism on this one wrt Obama Administration.

        My thoughts of the Obama Administration political rationale wrt to releasing more Abu Ghraib photos is:

        “No upside and lots of global downside.”

        I’m more optimistic wrt to the Obama Administration releasing the CIA OIG Report, and even a DOJ appointment of a Special Prosecutor for investigating the Bush/Cheney Torture crimes. There, the Obama Administration political calculation is more positive:

        “Lots of upside againt the Repugs and not too much downside.”

    • MadDog says:

      SCOTUS, even with Souter’s replacement in time for October, is still a 5-4 conservative lean.

      I’m thinking that the Obama Adminstration might be happy with that configuration wrt bailing on releasing more Abu Ghraib photos.

  5. Leen says:

    Glad to know you will be there EW. For some reason when Whitehouse says that “no one is above the law” I really get the feeling that he believes this. Gives one a bit of hope?

    Whitehouse has consistently been alarmed by the out of line strategies and behavior of the Bush administration thugs.

    Whitehouse “this is a foundation setting hearing”
    “beginning of a several step process. More to come”
    “sunlight has to be cast on this’

    Whitehouse…Leahy could restore a bit of faith in our congress members, Constitution, treaties signed and our Justice system with the “beginning of a several step process”.


  6. MadDog says:

    Totally OT, but Operation Enduring Freedom (OEF) is the typically thought to only refer to the US war in Afghanistan, but that is not the case.

    It also refers to the following (per Wiki):

    1. Operation Enduring Freedom – Afghanistan (OEF-A)
    2. Operation Enduring Freedom – Philippines (OEF-P) (formerly Operation Freedom Eagle)
    3. Operation Enduring Freedom – Horn of Africa (OEF-HOA)
    4. Operation Enduring Freedom – Trans Sahara (OEF-TS)
    5. Operation Enduring Freedom – Kyrgyzstan (completed in 2004)

    With this construction of OEF in mind, I found this curious in the latest US “military” death toll as reported by AP:

    …Outside the Afghan region, the Defense Department reports 67 more members of the U.S. military died in support of Operation Enduring Freedom. Of those, three were the result of hostile action. The military lists these other locations as Guantanamo Bay Naval Base, Cuba; Djibouti; Eritrea; Ethiopia; Jordan; Kenya; Kyrgyzstan; Philippines; Seychelles; Sudan; Tajikistan; Turkey; and Yemen.

    There were also four CIA officer deaths and one military civilian death.

    (My Bold)


    • greenwarrior says:

      “…Outside the Afghan region, the Defense Department reports 67 more members of the U.S. military died in support of Operation Enduring Freedom. Of those, three were the result of hostile action.”

      67 died and only 3 from hostile action? what have the rest of them died from?

  7. randiego says:

    OT – Eliot Spitzer is killing it on Rachel. More of that please.

    He seems like a guy that has a lot to say, he’s saying it all at once. He needs to slow down a bit…

  8. perris says:

    here’s the big gorilla everone misses;

    In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest – if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

    he saw the programs and knew what was being done, he was being hyothetical about americans getting the same treatment as these detainees

    in other words, that’s what he KNEW was being done to the detainees already, they were being hung from the ceiling naked, “sleep deprived”, “water boarded” andall the rest

    so, being hung from the ceiling naked was allready being done

    this is far more graphic then the term “water board” and people will begin to appreciate the depravity when “water board” is not the only thing we discuss when it comes to torture and cheney’s dungeon of pain

    • NCDem says:

      In my mind, that is exactly why the photos that are scheduled for release on May 28th are so important. Why were these photos held back originally? I think they will show a more varied slide show of torture than the initial release. Remember that the original release was designed to show that these were just a few “bad apples”.

      One of the weakest points in the minds of Americans is that the abuses and torture in Abu Ghraib are separate and apart from the “torture or EI Program”. Although most of us here know the connections, the vast majority of the American public see these as separate issues. Republicans are still using this canard of a few bad apples as they refer to the Abu Ghraib torture program. These photos will shock us all and bring the debate to a higher fever. We need to be ready for a tough hard sell weekend around Memorial Day. It will create a situation where the Republican right will argue endlessly that the release shows contempt for our military by the Obama administration.

  9. JimWhite says:

    Whitehouse certainly sounds ready and eager to get to it tomorrow. I wonder if, when he is exploring the “professional malfeasance” issue expected from the OPR report, he will touch on the responsibilities of OPR and how that impacts whether they can rightly refer people for prosecutions or merely suggest bar association action. He could do a bit of educating the press on this before the report actually comes out. I know a lot of that groundwork has also been done here, but it would be good for it to come in tomorrow’s setting when there will be a lot of attention.

    PS: Sorry for the TB discussion getting out of hand this morning on the al-Libi thread. In retrospect, I probably should have concentrated only on the waterboarding angle and left the TB part for the comments on the Oxdown. Live and learn…

  10. Leen says:

    “the interrogation team is CERTAIN that he has additional information that he refuses to divulge”

    How could they be “certain”?

    My head spins every time I hear “them” decribe torture. “enhanced interrogation techniques, methods,increased pressure, harsh tactics”

    • MadDog says:

      Junya had Pixie Dust.

      PapaDick had Certainty Pills, and Lynne made sure he took them every morning with his virgin blood injection.

      • Leen says:

        43,Dick and Company have mortally wounded our nations soul. Can we ever recover…it is up to our alleged justice bearers.

        We are doing our part the question is will they really do theirs?

  11. MadDog says:

    And finally Pat Roberts speaks (via Politico):

    …Asked if he felt the relevant lawmakers were kept informed of the interrogation tactics, Sen. Pat Roberts of Kansas, who was the top Republican on the Intelligence Committee, offered what he called “a strong, affirmative yes.”

    Not so much. *g*

    And I do understand what Pat means in regard to “relevant lawmakers were kept informed”. That would be Repugs, and fookin’ only Repugs.

  12. readerOfTeaLeaves says:

    Not meaning to go OT, but does Scott Bloch — the guy who paid to have his laptop scrubbed in Dec 2006, and who was supposed to have been protecting federal whistleblowers (rather than harrassing them) fit into this mess anywhere…?

    Don’t want to take this OT.
    But if he does fit, it would be one more puzzle piece. The FBI raided his home in April 2007 (he was suspected of destroying evidence), and he was fired in 2008.

  13. rkilowatt says:

    Chess is a game having known, absolute rules agreed-upon by players. At professional level, chess is monitored by arguably absolute referees. Similarly with mathematics.

    Politics and life are not chess. There is no set of knowable or absolute rules agreed-upon, much less enforced by an absolute referee.

    Game Theory [a la Johnny vonNeumann] is a better descriptor. His Game Theory allows for both use and abuse of rules; unilateral making and unmaking of rules and new rules; creativity as lying; etc all to some purposes known only to each player, alone. Anything goes to win some prize. Johnny vN did not lay in any ethical restraints or niceties. Thus Game Theory can be, and is, used to forward any purpose.

    Game Theory uses aspects of chess and mathematics…”to game” a contest, wild-style. [That could be implied by the phrase “eleven-dimensional chess” which would then not be “chess”.]

    • bobschacht says:

      You make an excellent point.

      Cheney was expert at gaming the system. He knew the rules that OTHER people (e.g., senators & congressmen) play by, and he had his own set of rules to take advantage of them.

      Bob in HI

  14. bmaz says:

    Hey, they (State Dept) have located Zelikow’s dissenting memo:

    Sen. Sheldon Whitehouse (D-RI), who chairs the subcommittee presiding over Wednesday’s hearing, has sought to obtain a copy of Zelikow’s memo from the State Department. More than one copy of the February 2006 memo has apparently been located; one is in the process of being declassified, a committee source said on condition of anonymity.

  15. radiofreewill says:

    I’d say the underlying assumptions at issue here, being supported by Bradbury’s Apparent Absurdity and Challenged by Zelikow’s Criticism, are:

    – An assumption that the Domestic United States is a Military Battlefield, and that the Battle is one for both Ideological Supremacy and Existential Survival (”Our Way of Life is Threatened”).

    – Citizens ‘could’ be Enemies, too, necessitating active Testing for Ideological Loyalty – based on the Standard of Suspicion, instead of Presumed Innocence protected until Probable Cause.

    – In Bush/Bradbury’s Ideology-First Paradigm, Disloyal Citizens are ‘not different’ than ‘Detainees’ – and therefore could be ‘hung from the ceiling, Waterboarded, etc.’

    So, Bradbury’s support for Bush’s Torture is based on Bradbury’s Professional Legal Belief that Bush the UE has the Ability to Declare anyone – even a US Citizen – an ‘enemy combatant’ and Treat them like a Detainee.

    Zelikow, in opposing, is saying that Bradbury is Gitmo-izing American Jails to treat Ideologically-Designated ‘Dis-Loyal’ Citizens as Non-Citizens, ‘non-persons’ who’ve lost their Constitutional Protections.

    The difference between the two is the difference between a Banana Republic, where the Dictator ‘decides’ whose Thoughts/Words/Deeds are Loyal, and whose Thoughts/Words/Deeds are Disloyal – and therefore suitable for Torture – and a Republic of Principled Citizens, Free to Think and Feel and Believe, as they Choose, within the bounds of the Rule of Law.

    Bradbury = Torture Acceptable for Ideologically Dis-Loyal (”Them”)

    Zelikow = Torture Never Acceptable to Principled People (We’re All “Them”)

  16. klynn says:

    Liked this quote from Whitehouse:

    “…There are two issues. First, torture. Second, all the damage that was done in the structures of government to make that torture possible. That is an equally important story that has to be told because American democracy is important.”

    I appreciate all the way through his comments he stresses American democracy. I think there is a strong message in his stressing American democracy and not just stating “democracy”.

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