Dick Cheney’s Torture Kabuki

I wanted to pull three threads together in this post, which suggest how Cheney instituted torture in this country:

  • Alberto Gonzales may have been approving torture even while Condi Rice and others went through the show of getting an OLC opinion to authorize it;
  • CIA claimed to be briefing Congress when it wasn’t;
  • The Bush Administration then claimed Congress had bought off on torture to persuade those objecting to torture within the administration.

There are also certain parallels with the way Cheney implemented his illegal wiretap program.

Alberto Gonzales’ approvals

As Ari Shapiro reported last week, Alberto Gonzales was personally approving the techniques Mitchell’s torturers would use on a daily basis.

The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA’s counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration’s legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

We know there’s cable traffic from the field back to CIA HQ every day. And we know there’s a May 28, 2002, 4-page cable from HQ back to the Field that roughly corresponds to when Ali Soufan has said the torturers brought out the small box in which they eventually confined Abu Zubaydah. This may mean there’s a seven-week gap between the time the harshest techniques were first okayed, and the time Condi purportedly gave the torture program its first okay on July 17, 2002. As I noted the other day, this raises the possibility that the OLC approval process was all just show, basically endorsing torture that had gone on for some time already.

Is it possible that when Bellinger and Condi asked for an OLC opinion, the CIA’s torturers were already hard at work, and it’s only because Bellinger asked for an opinion that they even bothered? If Gonzales was relaying daily approvals for torture directly to the torturers in the field, then why would it appear that Condi was the one who "approved" the program in mid-July? Why not Gonzales?

It’s a possibility that one of Shapiro’s sources is contemplating.

"I can’t believe the CIA would have settled for a piece of paper from the counsel to the president," says one former government official familiar with those discussions.

"If that were true," says the former official, "then the whole legal and policy review process from April through August would have been a complete charade."

So that’s the first data point: that the CIA may have started torturing, and only got an OLC opinion to authorize it because Condi and Bellinger were inquiring into the legal basis for it.

CIA claimed to be briefing Congress when it wasn’t

As I noted in a post that’s supposed to go up at the Guardian today, the CIA claimed to have briefed Congress before all this happened–in those two briefings they claimed to have given Bob Graham. In addition, they repeatedly claimed to have briefed Democrats on the program, when they actually did not (I’ll update when the post goes live).

That’s important for two reasons. First, presumably they’ve got their own documentation to back up these false claims (we know they do for all but the Graham briefings, which did not make it into the CIA’s list compiled after Bob Graham straightened them out). In other words, they may have been creating false documentation to be able to argue they had met their legally required briefings under the National Security Act, when in reality, no one denies CIA only informed Congress for the first time after they had started their torture program.

But then there’s the partisan point. After they started briefing Congress, there were at least two times when they falsely claimed to have briefed a Democrat, in addition to the Republican: in February 2003, when they briefed Pat Roberts on waterboarding specifically, but not Jello Jay Rockefeller. And in September 2006, when for some unknown reason they decided to brief appropriators, when they briefed Bill Young but not John Murtha (and, until last week, claimed to have briefed Murtha’s staffer even though they wouldn’t let the staffer attend the meeting). There are other briefings where they briefed only Republicans, but these two are critical because CIA claims they briefed Democrats, but did not.

What was it that Lindsey Graham said?

If you had in your mind and your heart that you’re going to disregard the law, and you’re going to come up with interrogation techniques that you know to be illegal, you would not go around telling people on the other side of the aisle about it.

Well said, Lindsey.

The Administration then claimed Congress had bought off on torture

And then, backed by this false record, the Administration tried to persuade those within the Administration who were fighting the torture. As Philip Zelikow has explained,

I will tell you on the inside, when I was arguing — we were having heated arguments about these policies on the inside in the White House situation room. And the argument would often be deployed against me and my colleagues, that, well, we briefed the following members of Congress — name, name, name, name, name — and they don’t have a problem with it.

So, in other words, they’re using — these briefings are being used, actually, to deal with arguments on the inside of the administration.

Mind you, they used this against Zelikow in 2005 and 2006; it’s not clear whether they used it earlier.

The similarity with the illegal wiretap program

This last bit–the claiming Congress approved when it didn’t–is a tactic they used with the illegal wiretap program, as well. Recall what we know: On March 9 and 10, 2004, Jim Comey refused to reauthorize the illegal wiretap program. So Cheney pulled in the Gang of Eight (the first time the full Gang of Eight got briefed together), and gave them some representation of Comey’s concerns. According to Nancy Pelosi (her again), she objected to continuing the program. Nevertheless, Alberto Gonzales (him again) and Andy Card intended to use this purported support from Congress to continue the illegal program to persuade John Ashcroft–then in ICU and not legally acting as AG–to override Comey’s refusal to reauthorize the program.

Most interesting, though, is the record-keeping. After Comey and Mueller made it clear they might resign over the program’s reauthorization (under Gonzales’ signature), George Bush ordered Gonzales to create notes of the Congressional briefing–the one that had occurred a few days earlier. Even more interesting, Gonzales went back and added one more sentence some time after that fact. And it’s those records that Gonzales relied on when he claimed to Congress that the entire Gang of Eight had bought off on the program.

So: Alberto Gonzales approves a program he has no authority to approve. They create records after the fact–the content of which is contested–to claim they had Congressional approval for the authorization. And then use that purported Congressional approval (though apparently, more members of Congress approved of this than have of torture)to try to persuade those at DOJ who objected to the program.

At least they’re consistent.

158 replies
  1. behindthefall says:

    Tell me again what’s in that briefcase that ex-AGAG is said to haul around with him? Life insurance?

  2. wavpeac says:

    I cannot get my mind around the difference between watergate, and all the criminal behavior of the bush administration. It just astounds me that anyone would defend the law breaking, and that more Americans are not demanding justice.

    It’s like two totally different countries.

    • behindthefall says:

      It has been since Iran-Contra, when Congress found it did not have the stomach to follow lines of questioning to the end.

      • Rayne says:

        I was just thinking about Iran Contra, and how very similar the case for torture was to that episode in American history.

        Reagan justified his approvals — which were firewalled in a number of ways so that the Tower Commission could not link them to illegal acts — saying that he was “deeply committed to securing the release of the hostages.

        I can almost hear an echo from the future of Bush saying he was deeply committed to securing the location of the 9/11 mastermind in the same manner, with Gonzo acting as McFarlane in this more contemporary version.

        The diversion, however, was the crime, and it happened right under our noses as we went on attack against Iraq; there were likely many more diversions because the scale of this mess makes Iran Contra look like a pup.

        Given the similarities, I wonder at what point the EO NSPD-19: Review of Defense Trade Export Policy and National Security will surface in this mix as a tool by which the Bush administration paid off key members of the Coalition of the Willing and their shadow counterparts which enabled black sites, rendition and torture.

        • Larue says:

          I wonder if missing arms, munitions, and pallets full of money disappeared for this very purpose?

          Interesting stuff Rayne, thanks . . . and of course, thanks Mz. Wheeler and all the other comments.

          A sharp crowd one and all . . .

    • bobash says:

      I’m a bit young to remember this detail of Watergate, but could the difference between then and now be that then there were Republicans who simply couldn’t sign off on Nixon’s illegal acts once they began to be exposed by the light of day; today, the few moderate Republicans left don’t have the courage/nads/integrity to call bullshit on one of their own. And without any acknowledgment of wrongdoing by a Republican, the media and the apparatus continues to be driven by the interminable partisan debate, without any regard for the truth, as long as it’s denied by one of the parties. The Republican’s lack of respect for truth has reached pathological levels, and the MSM lacks the ability/will to investigate and report facts vs. publish/broadcast play-by-play of the debate. This combination is proving to be dangerously corrosive. Obama’s election is a welcome reprieve, but I fear for our constitution the next time the pendulum swings back to the right.

      • BayStateLibrul says:

        My simple reason why Watergate worked:

        (1) Tapes vs e-mails today that were destroyed and no one has unearthed the fuckers yet.
        (2) Balls — Richardson resigned rather than carry out Nixon’s orders to fire Watergate Special Prosecutor Archibald Cox, who had been investigating White House involvement in the 1972 break-in at the headquarters of the Democratic National Committee in Washington, D.C. The subsequent Watergate scandal led Nixon to resign the presidency.
        The closest we had to a resignation was Comey, all others saluted.

        • skdadl says:

          The closest we had to a resignation was Comey, all others saluted.

          That isn’t entirely true, especially at DoD — think of Alberto Mora, or Morris Davis. Those are just the first two who come to mind — there’ve been others.

          • LabDancer says:

            Not “Irwin”; Irvin.

            Ol’ Senahtah Syam. Then-living embodiment to the legacy of Foghorn Leghorn. Able to command the world stage without ever bothering to follow a single comprehensible sentence with another. Whose eye-brows twitched and danced about so easily into a St. Vitus dance while he searched his brain for the concluding phrase to an accusatory question, one imagined he might be hooked up to static-filled ham radio relay. Whose utterances left so much doubt as to what he was after, merely to respond held the potential for perjury charges.

            And yes, I am older than dirt, thanks.

            • behindthefall says:

              Dirt, meet compost. As I was typing that in, I could see those jowls shaking. And you knew you had run up against someone who would. Not. Let. Go. Oh, for some Righteous Indignation these days, eh?

              Love your description.

              • LabDancer says:

                Oy. Call hubris; get a mess of hubris all over your clean outfit.

                Still: nice memories of the guy.

      • quake says:

        Obama’s election is a welcome reprieve, but I fear for our constitution the next time the pendulum swings back to the right.

        It’s like what happens when you stop taking your antibiotics after you’ve gotten better but before all the bugs are killed. The remaining bugs are the most virulent ones and come back even stronger next time (cf. Watergate, IranContra, Bushco…). Looks like we’re going through the same pattern (”let’s look ahead, not back…”) this time.

      • Larue says:

        It’s all profit driven and the media is part of the machine.

        There’s no lack of balls or anything else, this is all about business, making money, and expanding power and control. The MSM is very onboard from the start, and always has been, after all it’s OWNED by the same wealthy one’s driving the bus for profit and corporate dominance.

        And the government is paid off and bought to further that drive.

        • fatster says:

          I don’t think you’ll want to miss this, assuming you haven’t already seen it. It’s O/T in terms of this particular thread; it’s about the Bailout, which has certainly been discussed on these pages, just not lately, and how screwn we are.


          • skdadl says:

            how screwn we are.

            Y’know, you can make an argument for “screwn” as the past participle. Few would, but it could be done.

            • behindthefall says:

              There’s one about two Bostonian ladies emerging from the fish store. One says, “I got scrod.” The other replies, “I always wondered what the past participle was.” Scrod being young cod.

            • fatster says:

              Oh, I was just usin’ slang. (Believe it or not, I do have an OED, Strunk & White and other such resources. But I do tend to get silly and run away with the language. Sowwy.)

                • fatster says:

                  So glad you can fun, too! (I survived a Southern Gothic childhood and could not have done so without humor. I do get silly with it, though, I know. But English will surely survive my romps through it.) You have a great evening, ya heah?

    • quake says:

      In both 1973 and in the 2000s there was a substantial public outcry against the Rethug outrages. But…

      In 1973 the WaPo unleashed the young investigative reporters Woodward and Bernstein to investigate Watergate, usimg leaks from their source in the FBI (Mark Felt = “deep throat”), and the rest of the TradMed, after some time delays, piled on.

      In the 2000s the WaPo editorial page became a BushCo moutpiece, and Woodward’s integrity was compromised by his complicity in access journalism. Many of the TradMed (as well as Cogresscritters) may also have been beeing blackmailed by BushCo using info from illegal wiretaps (cf Spitzer, Elliot).

    • stryder says:

      Maybe it’s because that most people are aware of the stuff that goes on everyday in US prisons and youth facilities and consequentially see all this torture stuff as the accepted norm

  3. JohnLopresti says:

    One of the key aspects in the strategy appeared in the prior thread about selection criteria for filling the Associate Justice post on the supreme court bench, namely, that admiistration’s known range of theory of executive autonomy and perceived diminutive requirement for threebranch collegiality. I think Cheney likely felt about his work with Gonzales in the torture regimen about like he did in the efforts with his then chief of staff with respect to countering debunking of prewar hype, that the combination of the authorization to use military force and the hawk version of the preternatural condition of imperviousness of the president, to which Ms. Rice recently referred employing a Nixon paraphrase, if the president does it, it is legal, sufficed as some strange effigy of mens rea for the purpose of creating a “paper trail”.

  4. TheraP says:

    No wonder Gonzo had to have such a poor memory!

    They’re gonna hang the whole thing on Gonzo! Boy did they set this guy up! (couldn’t happen to nicer guy….)


    [needless to say: I buy the theory!] — Brilliant theory!

  5. alabama says:

    does the Torturer-in-Chief fit in? Do you see him as a passive partner? When it comes to this sort of maneuver, I would certainly agree. But when it comes to the demand for torture as such, I think he must have been the greatest demander….

    • readerOfTeaLeaves says:

      I figure that Cheney was his firewall, in a sense, to retain Bush’s “plausible deniability”. Eliot Abrams is quoted in a New Yorker article by Sy Hersh (”The Redirection”) as saying ‘[we] had to run it out of the VP’s office.’

      What ‘it’ was — apart from an Iran-Contra Redux, remains to be exposed.
      But whatever ‘it’ was, if GW Bush knew, he wanted ‘plausible deniability’.
      And if he didn’t know, he’s still culpable after all his claims to be Commander in Chief. It was his ‘watch’, after all.

      I suspect that Cheney feels he was sold down the river after his buddy Rumsfeld was fired and Gates must surely have started exterminating the rat’s nest that was Feith’s Office of Special Plans (OSP) that Cheney had helped set up to run whatever ‘it’ was.

  6. scribe says:

    You note:

    “This may mean there’s a seven-week gap between the time the harshest techniques were first okayed, and the time Condi purportedly gave the torture program its first okay on July 17, 2002.”

    Actually, that means there’s a minimum seven-week gap – it could be as early as the first “high-value” capture to whom the CIA (or its contractors) got access. That, of course, is taking as a given that the FBI and military were not performing the techniques that Mitchell/CIA were.

    • Mary says:

      Complaints were coming in from GITMO in January 2002 about non-Geneva compliant treatment of detainees and abuse of detainees, and the Gonzales Jan 2002 memo indicates that the WH had already begun a path of treatment of detainees that could be deemed war crimes by future administrations unless the administration could successfully come up with a way, like making up a name and legal theory, to argue that no law of any kind applied to the treatment of its detainees.

      That Jan 2002 memo is about as much a smoking gun as any lawyer would ever hand you on intent imo.

        • Mary says:

          Public – I don’t have a link but it’s ez to find. It’s the one that was linked early on – when Taft at State was fighting the abandonment of Geneva Conventions and OLC was jumping for joy at the prospect being able to be consigliores to war criminals but guarantee them all non-prosecution.

            • Rayne says:

              Many of the sites which reference the document link to a Newsweek page which has already been shuffled out of view.

              The APFN link to a copy of the document is now 404′d.

              Anybody have a better link, please put it up, thanks much.

              [EDIT: Found a link to a copy of the AG to Bush 25-JAN-2002 document at GWU — however you’ll note it’s marked DRAFT in the upper lefthand corner. I thought we’d seen one which was not marked DRAFT, but I can’t get my hands on it.]

      • emptywheel says:


        You saw the new book out revealing that Yoo at the January meetings leading up to the Jan 25 memo saying we had a GC problem. Which is pretty much your smoking gun right there.

        • Mary says:

          I saw the blurb in the write up, but haven’t read the book.

          Taft really did try IMO – I think really more so than Goldsmith et al, esp with Cap’n Jack advocating for forever detention even years after knowing that so many at GITMO had been innocent. Creepy beyond decaying flesh creepy.

          So add Yoo’s GC problem verbal admission, with Gonzales’ outright assertion in his Jan 2002 memo that since they were going to be commiting things that would be war crimes, they had to make up a label so that the vicitms of their actions weren’t covered by the War Crimes Act, to the same admissions in the Ashcroft letter Acquarius links above (Ashcroft also saying hey, we need these failed states and unlawful combatant labels to magically make our war crimes into something else) Then tack on the decision to ship anyone, ever, to GITMO (which was only based on an effort to keep US courts from having jurisdiction – pretty contrary to any actual belief that what was being done was “legal” and the refusal to allow Taguba to investigate MI vs. just the MPs – so many smoking guns it’s like the OK corral)

      • acquarius74 says:

        Mary, I’m pretty sure you’ve seen this Letter to The President, dated 02/01/2002 from Ashcroft. (I call it “how to avoid being charged with war crimes”).

        The date comes about a week following the Gonzo memo of 01/25/2002 which was really written by Addington. It appears to me that either Chaney or Bush is trying to get Ashcroft to sign on to their torture plans.

  7. JimWhite says:

    Was there ever an explanation for why Gonzo would be okaying this crap? Is the theory that he was confirming that the President did not need authorization from Congress, OLC or a court? I hope ACLU is after these docs under FOIA filings…

    • drational says:

      I think it all falls under the Grand Unifying Theory that “when the President approves it, then it is by definition legal”.
      But they were obviously hedging bets by fake briefing and false documenting Congressional approvals.

    • TheraP says:

      I’m just guessing here. But bush has always been Gonzo’s main client. Whatever bush wanted, Gonzo did for him. Total lackey, right? I think the guy is incapable of independent thought. But I bet he had to sign and with bush it was just a wave of his hands or something. Gonzo, to me, is the extremely dependent guy – a sociopath – a kind of paid gangster. Part of the crime family. I bet cheney was engineering things, bush was oking them, and Gonzo was the fall guy.

      I’ll buy any other theory that fits with this basic dynamic.

      • slide says:

        One issue I have never seen raised here is the “agency” relationship between Gonzo and Bush, a classic agency relationship in an attorney-client relationship. If the agent is guilty then the principal is also guilty. I am not sure as to the affect of the agency relationship in criminal conduct but in a civil context the principal is as liable as the agent, even if the principal is unaware of the agents conduct. But, it would seem that if Gonzo is guilty of a crime so is Bush, even if he claimed he was unaware of the conduct of his agent.

      • siri says:

        Exactly, which is why we needed to prosecute from Nixon on down after Watergate!!! And exactly WHY we need to prosecute this bunch as well, or trust you me, our kids and/or grandkids will see the same damned thing replay all over again. Only notice how it gets worse. Watergate was bad enough, but now torture and eves dropping on average American citizens and all the rest of the Bu$h Cabal’s evil law breaking actions.
        Who or why can’t anyone see this??? Obama???

        And I too am amazed at the difference in the responses in this country to Watergate and to the bu$h crime family! My conservative republican parents were UP IN ARMS about Watergate! They were outraged and all over it when it happened! Folks now are seemingly shrugging it off…..
        i just don’t get it.

        Excellent post, Marcy. Again. The more this chit comes unwound, the more obvious the whole mess becomes, dunno why i didn’t see it like this from the get, but some of us just don’t have the wattage Ms.Wheeler has!

        • foothillsmike says:

          During the Watergate revelations there were many rethugs who thought that what happened was just typical politics. That Nixon was being persecuted on a political witchhunt by the Dems.

    • emptywheel says:

      I think that’s right. WE’ve got the opinions that say the President has unfettered authority in national security. We don’t yet have the one that says President gets to be the judge of what falls under national security.

      Of course, that view might get challenged with the al-Haramain case.

        • acquarius74 says:

          Jim, if this memo carried such weight in later torturous acts ordered by Bush/Cheney, seems to me Bybee should have signed that 09/25/2001 memo, or even the AG (Ashcroft).

        • maryo2 says:

          wiki and other sources say Bybee didn’t start at OLC until November 2001. Was Bybee the “Acting” Assistant Attorney General for the OLC on September 25, 2001?

          Yoo was Deputy Assistant Attorney General, OLC, July 2001-May 2003. I can’t tell who he reported to from July to November 2001.

  8. Mary says:

    A couple more things on the first point – Gonzales issuing authorizations to torture and the box for live burial that created Soufan’s outburst re: arresting someone.

    It was in early 2002 that al-Libi was handed off to the Egyptians and it was the Egyptian live burial of al-Libi that resulted in his agreement to solidify a story about al-Qaeda training camps in Iraq.

    I don’t know if we have any dates per se on the Egyptian live burial, but undert the Conventions Against Torture and our Torture Victims Act, the US was not allowed to hand over al-Libi to the Egyptians for torture. This is a very clear and as a result, this is an issue no one in Congress, the DOJ, or elsewhere wants to deal with. As I understand the regs and statutes and treaty at the time (and on this one I’m not claiming to understand process perfectly – I wanted Clinton questioned on process some with her nomination but it didn’t happen) there was a “work around” option for sending someone off to a torture country, but it involved directly involving the Secretary of State and having the SoS secure assurances that the person being handed over would not be tortured.

    There’s an interesting diary up at kos right now by someone who tried to get in some questions with Powell after the Sun talking heads show. Those questions – about when Powell may have known his UN testimony was based on torture – were good (and Powell pretty much evaded them) but the questions I still have never heard anyone ask Powell involve his role as SoS in authorizing the transfers to torture countrie of people like not only al-Libi, but Maher Arar’s shipment to Syria. Those things were only supposed to happen, again if I understand correctly, if the SoS got invovled and secured the necessary assurances.

    Did that happen? If not, why not? If it did happen, to what extent to Powell follow up to make sure that the assurances were being complied with? Did anyone seek to involve an office other than SoS – like Tenet cutting a deal directly with his intel pals or Cheney’s office or the President making the calls?

    Obviously, Powell is emerging as an important ally for Obama and Holder and the media holds him in such reverential awe that that they are mostly tongue tied, but I’ve found it really odd that no one seems to get into the issue of SoS role (Powell AND RICE later) in the shipment around the world to torture portals of these various US kidnap victims, from al-libi to Binyam Mohamed to not only Maher Arar but the many others he identified as being at the Palestian Branch in Syria per US request (and that also appears to be where AZ’s young devotee was sent to be disappeared).

    Anyway – once you get through the hows and whos on al-Libi ending up in Egypt, the next round of questions would deal with how information passed back and forth between Egypt and the US on the kinds of questioning being undertaken and the results of those questions. Because you have to wonder if the Egyptians communicated these great results they got from live burial with al-Libi and that became the seed for the idea to engage in AZ’s live burial. Those communications would be evidentiary on so many fronts and it seems unlikely that you would simply have some kind of spontaneous outbreak of the very same technique the Egyptians used to get the info Cheney wanted from al-Libi at AZ’s detention site.

    One other note – to the extent Mitchellco were outside contractors, they don’t have reliance rights on OLC opinions. What they got from Gonzales would be interesting, but I think one big hole in the narratives is Ashcroft. He was at all those Principal’s meetings. If he didn’t give the oks that Gonzales did, he likely knew about them and didn’t object. Several stories indicate that Rice requested a Crim Div review of the torture and also said she didn’t want just the OLC – she wanted ASHCROFT PERSONALLY to sign off. And again IIRC, at least one story in NYT or WaPo said she got that.

    We haven’t seen it yet. One very simple thing might be that Ashcroft signed off (physically affixed his signature) on the OLC torture memos. In that case, the one he countersigned wouldn’t necessarily have even been withdrawn when Goldsmith pulled it back for OLC, unless the other issuer of the opinion, at that point Ashcroft (over whom Goldsmith had no authority) also withdrew his authorization.

    In any event, this never seems to get nailed down, and I think it would be helpful.

    But in particular with respect to your post, I think the issue of what was happening to al-Libi in Egypt and how he got to Egypt and the communications between Egypt and the US (or even US participation in his live burial or observation of it) might tie in very closely with the decisions to use a live burial for AZ and the resulting response from Soufan.

    Which, OT to this post, goes to a big question that I don’t think gets asked and is incredibly important IMO. When were the Principals and/or Congress told that experienced FBI interrogators with al-Qaeda background who could speak the detainees’ languages were being barred from interrogations and replaced by CIA analysts who did not have al-Qaeda background and could not speak the languages, because of the torture tactics? If they were not told – why not and whose decision was that? Also, when where they told of Chertoff’s determination that there was no way to “clean team” torture victims? And if they were not told, why not? Whose decision was that?

    • TheraP says:

      there was a “work around” option for sending someone off to a torture country, but it involved directly involving the Secretary of State and having the SoS secure assurances that the person being handed over would not be tortured.

      Exactly what’s being done right now!

      (and I would assume that unless there’s oversight by some objective body like the ICRC and the UN High Commissioner in charge of that, that it’s simply a license to torture)

      • Mary says:

        Yeah – that is the Obama GITMO solution. But it was always the way that shipments were supposed to work (including the Clinton era renditions to Egypt for torture)

        No one in Congress is getting into this topic at all, and it’s ez to see why, but still not excusable. No one wants to get into how the Clinton era shipments to Egyptian torture were put together, authorized (possibly by Mary Jo White who was only USA for SDNY at the time, and/or Albright, or with Albright blocked out via the covert participation of the USA’s office for SDNY – – no one is explicating that part of the process and program. Then you have Popular Powell as SoS. Not only do they not want to “take him on” bc they don’t want to ask a popular guy hard questions (do we only elect people with High School neuroses to Congress?) but they also see that he is heaping all kinds of credibility on Obama and giving Obama a very large helping hand.

        And then there’s the big ol slap in the face of calling Egypt even more publically a torture state (and why should we worry about that, after all, it’s so effective to be a torture state that it’s not like al-Qaeda and the Muslim Brotherhood have any support there and golly, Egypt sure has managed to stay clean when it comes to supplying hijacking murderers *** or not) and then tieing it to more torture.

        IMO, that’s the underlying, co-primary message to Obamaco when Republicans and pro-torture Administration and ex-administration guys parrot the “if you don’t protect them, your torturers may not torture for YOU in the future when you ask them to” phrasings. It’s not so much that the CIA won’t torture for him – they’d be crazy to for that matter – it’s that foreign govs won’t be so ready to violate international law, treaties, conventions and their own domestic laws to help out the US if they don’t get cover now.

        And I guess McChrystal’s guys might have qualms over the commission of war crimes – although I don’t see why anyone would worry much over that. Looking at what they’ve already happily done, no one is showing much on the remorse front. Which goes to the point at the end of the huffpo piece I linked to yesterday. Once you corrupt the truth, people only become ever more willing to be depraved. It snowballs.

    • WilliamOckham says:


      At some point after the al-Libi rendition, they got an OLC memo saying that the CinC could rendition people without the SoS signoff, because CinC powers trump treaties, donchaknow. The pattern with the extraordinary renditions is just like the one ew is explicating for torture and wiretapping. I’ll look up the dates when I get a chance.

      • Mary says:

        I figured they have that, as they got something similar in draft form from Goldsmith on being able to transport Iraqi detainees who were protected persons out of country for “questioning” bc of CIC powers.

        But what I’d like is to get the record put together. Was Powell ever asked to sign off as per the Regs? If so, what did he do? Was resistance from Powell and Taft why they got the memo or did they just decide to cut them out from the beginning? Did Bush delegate that power on? To? If not, did Bush sign off on the transfer orders? Was the workaround to just delete the SoS, or was it to also delete the requirement to obtain assurances? If they kept up the pretense of obtaining assurances – what communications went back and forth with Egypt (and Morocco and Syria for instance) on questioning and how did that interrelate with the assurances? Did OLC sign off on live burial not being torture under the assurances give by Egypt? When was Congress told that the SoS was no being used to obtain non-torture assurances? etc.

        This is a big area that no one seems to want to touch – and as I hit on quickly, I can see why. But it needs a look – and if someone was getting communications on penis scapeling and live burials after “assurances” were given, then that needs a lot of attention.

        • readerOfTeaLeaves says:

          Was resistance from Powell and Taft why they got the memo or did they just decide to cut them out from the beginning? Did Bush delegate that power on? To? If not, did Bush sign off on the transfer orders? Was the workaround to just delete the SoS, or was it to also delete the requirement to obtain assurances?

          Again, I have no sure answers, but thinking about the way that Cheney ‘used’ Treasury Sec Paul O’Neill — wanted O’Neill’s credibility, so wanted him as a ‘front man’. But when push came to shove, when O’Neill stood up for principle, he was no longer needed.

          Neither Cheney nor Bush had the necessary credibility to go to the UN and claim that there were grounds for war. It seems a reasonable guess that this was a Redux of the O’Neill approach: get a credible Republican who can garner respect, then subvert them quietly in the background while you keep them up front as the public face.

          Then add in Cheney’s evident skill at placing ’spies’ throughout the agencies and probably congressional committees, and it appears that time and again Cheney’s actions destroy the reputations of those that he is able to persuade to be the ‘public face’ of government while he works his sinister ops in the background, out of public sight.

          I have no way to prove this point, but I think that the number of examples is starting to add up to quite a pattern.

        • emptywheel says:


          Those memos are among those that haven’t yet been turned over. Though you can see where they were going with the treaty one that did get dumped in January.

          • WilliamOckham says:

            Well, the 3 Mar 2002 memo to the DoD on renditions has been released. It is just as hideous as the torture memos. Although it was partially repudiated, the idea that the torture convention’s restriction on sending someone to be tortured doesn’t apply to anyone we pick up overseas still seems to the be official position of the OLC.

            For Mary, they decided that they didn’t even have to ask the SoS when the person never made it to U.S. soil.

            • LabDancer says:

              When did this get released?

              Anyone who wants the most blood-curdling view into the conservative, federalist and Republican view of how historical anomaly can be twisted into precedent should read this. Bybee goes back to slaughtering prisoners at or after the late stages of the Battle of Agincourt etc! By extension, failing to do something about the survivor in regicide renders it legal for the survivor to kill at will.

              And declining to investigate towards prosecution the crimes of the Bush administration means those crimes are rendered perfectly legal and future presidents empowered to repeat and build on them.

              • WilliamOckham says:

                They were released on March 2, 2009 by the DOJ in response to Padilla’s civil suit.

                • LabDancer says:

                  Thank you.

                  I have to admit awe at the ability of you and several others to keep up with all this [fearless leader obviously; mary]. I’d have to give up at least a couple of luxury items from family, work, eating, breathing, etc.

            • lllphd says:

              but arar did make it to US soil, didn’t he? wasn’t he picked up at at JFK airport?

              it would be that case in particular that had to have gotten powell’s attention, as yes, arar was nabbed within our borders, and yes, there were diplomatic communications between canada and the US on how to proceed. there is no way this escaped powell’s attention.

              the question then becomes, what kinds of questions did this incident then raise in powell’s head, and then what was he able to find out, and what did he do about it. bear in mind, of course, that arar’s rendition happened near the one year anniversary of 9/11, so powell may have been easier to persuade that it was all being done in the interests of protecting the fatherland, etc. but he had to have made inquiries, and possibly noises, which surely contributed to his, erm, departure in 05.

              • WilliamOckham says:

                There’s a DHS IG report on Arar’s case, but almost all the details on the consultation with the DoS are blacked out (even though they are marked as unclassified). One can infer that the assurances that Syria wouldn’t torture Arar didn’t come from DoS, but from some OGA (other government agency). I say that because even though Recommendation 2 is blacked out, the ICE response is:

                In response to this recommendation, ICE said that it will consult with DOS before accepting assurances with respect to aliens in removal proceeding under 235(c).

              • skdadl says:

                I think that your immigration people and the FBI (the first actors) were running on the technical fiction that Arar was not within the U.S. when he was apprehended. He was at JFK, transferring from a flight from Switzerland to a flight to Canada, and to do that, he had to go through U.S. immigration. He never made it through, so although he was “in” detention in the U.S., he had never been admitted to the U.S.

                One other variable we know of: FBI agent Robert Fuller was interrogating child soldier Omar Khadr at Bagram air base while Arar was detained in New York. After some, ah, encouragement from Fuller, Khadr said he thought he might have seen Arar at a training base in Afghanistan in 2001. (The RCMP and CSIS have established this as an impossibility, partly because the RCMP already had Arar under suveillance at the time.) Arar was rendered to Syria via Jordan the next day.

              • Mary says:

                The underexplored element of the Arar shipment is that it was expressly directed by the Dept of Justice, via Larry Thompson. Not even a “CIC” or military approach, but rather that DAG, as Acting AG, of the United States Department of Justice sending a man to Syria (which wouldn’t even take him directly – so sending him to Jordan which had no legal basis of any kind) to be tortured. The DOJ specifically setting up the torture transfer of Arar. Then heroesque Comey signing off on State Secrets assertisions when his friends were sued. Who knew DOJ was really a Club Hedonism for insiders to scratch each other and help mentor fledgling felonies along?

                • WilliamOckham says:

                  And even better, the DHS IG report claims that the DAG was Acting AG because Ashcroft was out of the country on October 7, 2002, but Ashcroft wasn’t out of the country. On Friday, October 4, 2002, he gave a speech and had a press conference in Washington, D.C. On Monday, October 7, 2002, he spoke at the International Association of Chiefs of Police Conference in Minneapolis, MN. On October 8, 2002, he was back in D.C. to speak at a Voting Integrity Symposium.

                  All that was on the DOJ web site when the report came out.

                • rapt says:

                  “Who knew DOJ was really a Club Hedonism for insiders to … help mentor fledgling felonies along?”

                  But then at some point it became too obvious to ignore.

            • Mary says:

              I still want to see the questions asked though. I want the record established that we had this way of handling shipments to foreign countries. By treaty, we didn’t do it if they tortured. We had regs to work around that if the SoS could get assurances. So, Fmr Sec Powell – did they go to you and ask for that under the regs. Did you know they were doing it? Were you made aware of the memos? Did anyone get assurancances? Etc.

              A memo that says we can evade the Sec of State isn’t the same as getting the responses to if we did evade him and why and who asked for the power to evade and who did sign off etc. The factual record on some of this is really more interesting and of more legal effect that the legal memo record.

              That’s a kind of ramble though – thanks for the links and info. It just nails people down to start filling in the fact record. March of 2002 kind of points to al-Libi doesn’t it And again, was Congress told that there was a new methodolgy in place? Of course, this is a touchy subject bc the Clinton admin shipped to Egytp without even an OLC opinion – just MJW’s ok.

              • Mary says:

                Even that memo gets its wheels spinning when it talks about liability for conspiracy to transfer someone for the purpose of torture, doesn’t it?

                I hope Al-libi’s corpse shows up every night to introduce Bybee to more of the children and US soldiers and old women and maimed men he helped create. And all with no remorse from him or anyone else, including Obama now.

        • TheraP says:

          And not just the torture, but the the total disappearances, the ones that bush slyly described as: well, let’s just say they can’t bother us anymore.

          (which always sounded like murder to me)

          • bobschacht says:

            I guess we have our own desaparecidos. Wiki counts a baker’s dozen nations with a history of “forced disappearance”– including the good ol’ U.S.A.:

            Since 2001, as part of its War on Terror, the United States operates a network of off shore prisons, called black site, the most famous of which is probably Guantánamo Bay detention camp. State officials have admitted to the press and in court to be using various torture techniques (authorized by the District attorney) to interrogate suspects of terrorism, many of them after a forced disappearance.[citation needed] The US supreme court did not discontinue its usage and repeatedly ruled against hearing citizens who underwent forced confessions, even after they were found innocent, claiming that a trial will constitute a breach of national security.[4][dubious – discuss]

            Of course, this puts us in the same league with tin pot dictatorships such as had prevailed in Argentina. Doesn’t that make you proud?

            You can see that Wiki wants some help with citations and such for this passage. If you’re a certified Wikifier, you can help!

            Bob in HI

    • readerOfTeaLeaves says:

      Which, OT to this post, goes to a big question that I don’t think gets asked and is incredibly important IMO. When were the Principals and/or Congress told that experienced FBI interrogators with al-Qaeda background who could speak the detainees’ languages were being barred from interrogations and replaced by CIA analysts who did not have al-Qaeda background and could not speak the languages, because of the torture tactics? If they were not told – why not and whose decision was that? Also, when where they told of Chertoff’s determination that there was no way to “clean team” torture victims? And if they were not told, why not? Whose decision was that?

      Good questions, and since they bear on the military implications of how things have turned out, I hope that they are shared by at least some in the military.

      FWIW, re Powell, it’s my recollection that at DoS, he was probably being undercut by spies like John Bolton, who was surely Hadley and Liddy’s ‘eyes and ears’ on what Powell and Wilkerson were up to… since Hadley probably had some roll in the SOTU ‘Niger uranium’ speech, and since wasn’t it Bolton who sent along info about Joe Wilson or his wife to OVP’s office, which would have gone to Scootie Poot?

    • emptywheel says:

      WRT when was Congress told? I don’t know–but remember there’s a September 2003 briefing on what info they were getting from what tactics. I would love to see that now, to check for accuracy, bc that’s where that info should show up. Also, a month after that briefing (the briefing was just for the Gang, in pairs again), Goss and Harman wrote a letter to Tenet asking for a full Committee briefing on similar issues. They basically said, “and can you send a senior, competent briefer, because some of the briefings we have gotten lately have sucked.”

      As to al-Libi–My best guess is February. Wilkerson’s narrative actually blurs thta date, but I take it to be a comment on the quality of Wilkerson’s narrative, at least preliminarily.

      • Mary says:

        WRT when was Congress told?
        LOL, my 36 is so rambling I’m not sure which “when Congress was told” you are trying to help me with.

        The main thing in that 13 I guess is Soufan’s pulling out bc of the torture and the al-Libi torture.

        I’m guessing that there was NEVER any actual briefing to any committees or Dems in the Gang of 4 or 8, as to the fact that the FBI withdrew from the interrogations. I may be wrong on that, but I think that’s a point that needs attention. Can you imagine claiming that you “briefed Congress” on the EITs and didn’t tell them that even though the OLC said they were “legal” the FBI refused to participate and you were losing all the FBI knowledge on al-Qaeda, as well as the language skills, by using the EITS? I don’t think anyone would buy off on that being a briefing. Maybe Pelosi et al were told early on and that’s why they aren’t saying much on that front, but if not, they should have used his testimony to hammer that point.

        If Tenet NEVER TOLD CONGRESS that the EITs meant that the FBI investigators and their knowledge and skills were being lost, that’s kind of a big ommission.

        • LabDancer says:

          “I’m guessing that there was NEVER any actual briefing to any committees or Dems in the Gang of 4 or 8″

          Certainly explains the RW Sound Machine amping up to 11 on “Pelosi Is Lying”.

          • Mary says:

            of the FBI part – I think there were briefings that may have touched on various issues at various times, but I’m guessing no one in Congress was initially told about the FBI pulling out of the interrogations bc they didn’t trust the Torture is Legal and Fun for the Kids Too opinions.

          • freepatriot says:

            Ive already stated that the briefings were actually bait for leakers, and each briefing was different, to identify who was leaking

            they just pulled the “cover your ass” stuff straigh out of their ass

            that’s why the evidence doesn’t fit

            and if we saw the briefings on paper, side by side, we would know the truth by the fact that none of the briefings contained the same information

            btw, none of the briefings had any truth in them

            • LabDancer says:

              Freepster’s on a ROLL here. First conjuring up Sotomayor [Obama – “Hey freepster: whassup?”.] Now grinding BELOW the nub on what the CIA provided each Congress critter: her or his own designer line of b.s. High steroid content in the recent batch of trolls you been eating?

    • Loo Hoo. says:

      Those communications would be evidentiary on so many fronts and it seems unlikely that you would simply have some kind of spontaneous outbreak of the very same technique the Egyptians used to get the info Cheney wanted from al-Libi at AZ’s detention site.

      What’s in it for Egypt?

    • quake says:

      Which, OT to this post, goes to a big question that I don’t think gets asked ….

      An even bigger question that isn’t being asked yet (flashback to 1973): “What did the President know, and when did he know it?”

  9. phred says:

    EW, what do you make of the fact that Gonzales is the one who signed off on these illegal programs? We have been discussing for awhile now that a lot of this stuff seems to have been developed and run out of OVP. However, Gonzales’ role appears to implicate Bush directly. What is your take on this?

    • emptywheel says:

      Well, keep in mind, Bush is the one who ordered Gonzo to make notes of the meeting with Congress, though Bush was not at that briefing.

      I suspect that relationship is typical: that Bush is not in a setting where he can be held accountable, but that he’s involved. And I also expect that Cheney and Bush have a structure akin to what they did with Plame to give them further cover: claim Cheney had the authority.

      • phred says:

        Thanks. It just seems to me that Bush’s “plausible deniability” gets a lot less plausible when Gonzo is the guy signing off.

      • quake says:

        Well, keep in mind, Bush is the one who ordered Gonzo to make notes of the meeting with Congress, though Bush was not at that briefing.

        I suspect that relationship is typical: that Bush is not in a setting where he can be held accountable, but that he’s involved. And I also expect that Cheney and Bush have a structure akin to what they did with Plame to give them further cover: claim Cheney had the authority.

        The obvious analogy is to Mario Puzo’s “The Godfather.” Don Corleone (W?) gave orders to the consigliere Tom Hagen (not yet AGAG AG??) in private. who then (also in private) passed them on the the Capo Clemenza (shooter?). At this point there is no way to prove the above scenario is correct, but I know of nothing to contradict it.

    • Loo Hoo. says:

      Oh, man, this is cool.

      Includes video.

      A former top interrogator is responding forcefully to the case Dick Cheney made on Thursday in favor of torture (what the former VP and his allies refer to as “enhanced interrogation methods.”)

      Brave New Films released a short video Tuesday of Matthew Alexander taking apart Cheney’s argument piece by piece. Alexander, who uses a pseudonym for security reasons, was a 14-year military interrogator who oversaw more than a thousand interrogations and conducted more than 300 in Iraq himself. He led the interrogation team that scored one of the United States’ most high-profile captures, that of Abu Musab al-Zarqawi, and he did it using traditional methods.

      • freepatriot says:

        that’s not really a fair fight

        Matthew Alexander has a “Home Planet” advantage

        and THIS just flat PISSES ME OFF:

        The video is at once an effective rebuke of the former vice president and a sign of how the changing media landscape can flatten the field of political debate. In an earlier era, Alexander would likely lack the opportunity to respond to the vice president because he has already written on op-ed for the Washington Post about his opposition to torture and done the media rounds promoting his book “How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq.” The BNF video, and a rejoinder posted here over the weekend, reinserts a critic with deep credibility back into the debate.

        you gotta be selling a book to qualify to have an opinion that the media will broadcast ???

        what the fuck is that all about

        our opinion is being determined by whomever happens to be selling a book when the problem arises ???

        I thought “expertise in the field” would be a determining factor

        but if the expert ain’t selling a book, we’ll just take any idiot who is selling a book this week

        that’s a recipe for disaster

        • Loo Hoo. says:

          Well, I’m waiting for your book, freep. Then we’ll get to see YOU all over our tee vees!!

          It’s heartening to know that Lizard Cheney will probably be running for office too. That way her dad can stay tuned in.

          • freepatriot says:

            Well, I’m waiting for your book, freep. Then we’ll get to see YOU all over our tee vees!!

            hate to disappoint you, but the first bastard that points a camera at me is gettin knocked out

            I’m not joking about the “fear of being looked at” thingy

            (Pops wasn’t joking about the “tickling my feet when I’m sleeping” thing either, so yeah, I been knocked out a time or two myself …)

            an if I ever get really famous, I’ll probably have to hire a PR guy from “Hired Goons R US” or something

            now that I think about it, except for booking photos, I’ve been photographed less than 10 times in the past 25 years, an only two of those times was voluntary

            people pretty much jes ain’t allowed to take pictures of me

            cept for that time that Mom asked …

            I’m a strange Dude …

            gotta go now

      • acquarius74 says:

        Thank you, Loo Hoo! Please write an Oxdown diary on this. In that speech of Cheney’s at the AEI, he was obviously shooting at Matt Alexander and Ali Soufan. 5 Deferment Dick has no front line experience, just his greed for power and sadism to rely on. I’ll take Matt A and Ali Soufan any day!

  10. jocapo says:

    This is the same method that was used to take us into the Iraq War and it fits the same pattern. Lawrence Wilkerson told Rachel Maddow the other day that Dick Cheney was the most skillful bureaucratic operator that he’s ever known. He also said that Rumsfeld was almost as good but Cheney was the best. Everything we’re talking about: torture, wire tapping, the Iraq War, etc. were implemented using the same shell game.

    • lllphd says:

      i agree, it’s all the same pattern. even the way they would – and continue to – leak/plant info to the press, and then reference those stories as if they were independently ‘true.’

      cunning. evil, but cunning.

  11. WilliamOckham says:

    All the new information that has come out puts stuff that’s already been released in a whole new light. In that regard, I’d like to point to a document that was released a year ago (5/27/2008) as part of the ACLU’s ongoing torture FOIA. It’s a heavily redacted memo dated June 4, 2004 from George Tenet to the National Security Advisor (Rice). By June 2004, Tenet is on his way out as CIA director, the Abu Ghraib scandal has hit with full force, the CIA IG’s report has just been finished (but not yet briefed to Congress) and the 2004 Presidential campaign is in full swing. The CIA prison system was mostly still secret, but they had just released Khaled el-Masri in May 2004. The story of the ghost detainees in Iraq was just about to break.
    With that as the background, here’s the parts of the second page of the memo that aren’t redacted (all the rest except the date, sender, and addressee are redacted:

    3. As you know, beginning in September 2002, the Justice Department authorized CIA in its discretion, to employ on selected HVDs [Redaction ~3 lines] waterboard, [Redaction ~2 lines] CIA has reserved use of these [Redaction] techniques to elicit ongoing threat information from the most hardcore, senior terrorist figures that have been captured– men such as Khalid Sheik Muhammad, Abu Zubaydeh, [Redaction ~ 7 lines] key members of Congress have been briefed from the beginning–CIA informed the leadership of the Congressional Intelligence Committees of the existence and nature of the Program when it commenced in late 2002, in early 2003 when members of the leadership changed, and again in September 2003.

    Rice and Tenet both knew that most of that was not true. They knew the program commenced long before September 2002, that the DOJ memos (which were not authorizations) came in August, that the Congressional briefings were after the fact and completely inadequate from a statutory perspective. What is this memo other than an attempt to create an after-the-fact coverup?

    • Mary says:

      And add in the following –

      By Jan 2004, Maher Arar had filed his lawsuit and by June 2004, the Rasul Case had been decided (with the companion al Odah case on the ability to invoke the court’s jurisdiction under the Alien Tort Act).

      So the lynchpin of the coverup – the, “sure this stuff is legal, but let’s try to do it somewhere like GITMO and blacksites and via foreign gov proxies that are outside of the US courts’ jurisdiction” suffered a BIG HIT. The Eisentrager footnote got kicked to the curb and there was a memo in the files in effect saying a big chunk of the people at GITMO were victims of US gov torts and crimes by Aug of 2002. So with the June 2004 decision that the courts were open to them, things were really poised on the brink.

      Then, of course, all the DOJ “heroes” made sure they said what a nifty guy GWB was and sat back while Kerry’s non-torture service was demeaned and they pulled themselves and Their George back from the brink by pushing the country over. Great guys, one and all.

  12. perris says:

    I find only one bit to ask for clarity, ianal;

    As I noted the other day, this raises the possibility that the OLC approval process was all just show, basically endorsing torture that had gone on for some time already.

    seems to me the legal opinion okaying torture weren’t new law, they were interpretations of law

    if those interpretations are correct then it doesn’t matter when the act is conducted

    if they are incorrect it doesn’t matter when the acts were conducted either

    • emptywheel says:

      I think you’re right about if the interpretation was correct–legal is legal.

      But not if, as is hte case, the interpretation was wrong. That’s because, while it doesn’t change the illegality of the act, it means Mitchell and friends can claim good faith reliance on the memo.

      • freepatriot says:

        while it doesn’t change the illegality of the act, it means Mitchell and friends can claim good faith reliance on the memo.

        any legal beagles wanna tackle how RICO deals with the “good faith reliance” argument ???

        as I unnerstan RICO, the “good faith” defense might be disposable if we can prove a conspiracy

        maybe I ain’t as dumb as I look …

      • Mary says:

        I don’t think they can. OLC memos are not for reliance by non-agency actors. As stated on the OLC web page, “The Office of Legal Counsel is not authorized to give legal advice to private persons”

        You can’t have reliance on an opinion that isn’t issued to you.

        That’s even if “good faith” was an actual defense to criminal acts and it basically isn’t, despite the Yoo and Toensing and Bybee unique interpretation of intent vis a vis torture and shrug off of jus cogens issues. Intent to do the act that is torture, as opposed to intent to specifically commit the crime of torture as a crime, is the operative issue there and good faith doesn’t do much on that front. It didn’t for the telecoms either, that’s why Congress passed the savings legislation – bc there was no “good faith commission of felonies” defense that worked.

        JMO, but I don’t think they have a good faith leg to stand on – esp with the FBI agent pulling out and threatening to arrest them as a backdrop.

        If that good faith approach worked, Nuremburg would have, in some cases at least, turned out differently bc there were orders and opinions and even judicial decisions offered up for support of many of the acts.

    • quake says:

      seems to me the legal opinion okaying torture weren’t new law, they were interpretations of law

      if those interpretations are correct then it doesn’t matter when the act is conducted

      if they are incorrect it doesn’t matter when the acts were conducted either

      IANAL either. But AFAIK Bushco thugs can (for practical purposes) use the incorrect legal opinions as a “get out of jail free” card.

  13. Rayne says:

    Yeah, all sorts of old bits now have a completely different appearance from this new perspective.

    I’ve wondered why they didn’t make use of Bush’s statement of 28-DEC-2001, in which he says the Executive Office doesn’t have to notify Congress of jacksh*t if telling the intel committees would be construed as a threat to national security.

    They only had to point to Harman and say, “Look, we gave highly limited briefings and kept limited records because we suspected Congress was compromised.”

    Or do elections have consequences, the option to use such a line of defense expiring with November 4th’s outcome?

  14. freepatriot says:

    well, guess we know who Obama is listening to

    an boy am I glad I poster those comments last night

    it prolly what helped Obama make the final decision

    well, if freepatriot likes her, she must be good. He’s such an accomplished judge of character an all …

    an thanks to teh innertoobz, I dint even have to drop a dime to get the message thru

    I bet ya never thought yer blog would have such world changing impact


    what the hell, I figured I’d take a shot. People been sayin that Obama is listening to idiot, and I’m an idiot. So why couldn’t it be my doing ???

  15. freepatriot says:

    there is no douby about this:

    they may have been creating false documentation to be able to argue they had met their legally required briefings under the National Security Act, when in reality, no one denies CIA only informed Congress for the first time after they had started their torture program.

    that ship already sailed

    that question was answered when the CIA falsely claimed that they had briefed Bob Graham FOUR FUCKING TIMES

    that’s a lie

    and they were referencing RECORDS when they told that lie

    if you are lying when you make reference to four false claims that you learned about from studying the “records”, then it don’t take much math ability to put 2 an 2 together

    you say you have records that prove X, and X turns out to be false ???

    you got some false records, dude

    you might have to be a genius to stay ahead of the repuglitarded shitstorm of lies

    but ya don’t gotta be a genius to figure out where the lie came from in this case

    it came from the RECORDS the CIA reviewed

    false in one thing, false in all things

    case closed

    the CIA LIED to congress

    • plunger says:

      If they had Ledeen hand deliver the forged Niger document and feed it to the press through (co-conspirator) Ambassador Mel Sembler in Rome to facilitate the inclusion of the yellow cake fantasy in Bush’s SOU, it’s no big stretch to assume that the exact same (fake) Intelligence Shop (Feith/Libby/Matlin/Rove, etc.) planted the fake briefing documents inside the CIA to attempt to paper over their tracks.

      Assume they were manufacturing as much false paper as they were destroying in their bid to create an alternate reality.

      If you waterboard Karl Rove, he’ll tell you all about it. He is, after all, “The Architect.”

      Remember, we are in a “time of war,” and this is a national security issue, so the waterboarding of Rove and others to extract information is perfectly legal.

  16. klynn says:


    The “partisan element” would also fall under the fourth thread of “back door” funding and contracts.

  17. plunger says:

    Isn’t it interesting how lying, no matter how huge or at what level, always comes down to the same tired shit that worked (or didn’t work) when you were growing up as a kid?

    “But Dad, Mom said it was OK…”

    “Well OK son, I guess if you’re mother said it was OK, then it’s OK with me.”

    They must have assumed that we’d all be living under Martial Law by now and that no one would have access to the Internets to figure all this out.

    Nah, they’re just that fucking arrogant.

    • phred says:

      Oooo, LabDancer, you know how to hit bmaz where it hurts ; ) So far Glenzilla likes the pick, Turley not so much, and now Chemerinsky is firmly in the “good pick” camp. I’m still waiting for bmaz to weigh in now that the pick has been announced…

      And Loo Hoo, thanks for the link to the video. One of these days Cheney will learn to stop picking fights with interrogators like Soufan and Alexander who are much much more credible than he is…

  18. fatster says:

    Justices Ease Rules on Questioning Suspects

    Published: May 26, 2009
    Filed at 12:32 p.m. ET

    WASHINGTON (AP) — “The Supreme Court on Tuesday overturned a long-standing ruling that stopped police from initiating questions unless a defendant’s lawyer was present, a move that will make it easier for prosecutors to interrogate suspects.
    . . .
    “The Michigan v. Jackson opinion was written by Justice John Paul Stevens, the only current justice who was on the court at the time. He and Justices David Souter, Stephen Breyer and Ruth Bader Ginsburg dissented from the ruling, and in an unusual move Stevens read his dissent aloud from the bench. It was the first time this term a justice had read a dissent aloud.
    . . .
    “The Obama administration had asked the court to overturn Michigan v. Jackson, disappointing civil rights and civil liberties groups that expected President Barack Obama to reverse the policies of his Republican predecessor, George W. Bush.
    . . .
    “The Justice Department, in a brief signed by Solicitor General Elena Kagan, said the 1986 decision ‘’serves no real purpose” and offers only ”meager benefits.”’


  19. perris says:

    this is nice, petreaus himself in an interview;

    PETRAEUS: In fact, I have long been on record as having testified and also in helping write doctrine for interrogation techniques that are completely in line with the Geneva Convention. And as a division commander in Iraq in the early days, we put out guidance very early on to make sure that our soldiers, in fact, knew that we needed to stay within those guidelines.

  20. RhodoZeb says:

    Has Marcy talked about the preferred method of investigations?

    That’s what I am interested in right now.

    • acquarius74 says:

      Thanks again, maryo2, for the historycommons timeline link at your #87. It is a real prize which I have filed.

      I see that Yoo’s 09/25/2001 memo was to Flanigan who was then asst to white house counsel (then Gonzo). It still leaves me blank as to who was Yoo’s boss when he signed that memo which became the basis for wiping out all that America had stood for before him.

      It is clear from Ashcroft’s livid confrontation with Cheney, Addington, etc., that Yoo certainly did not have Ashcroft’s approval for that memo.

      This is an excellent timeline and I recommend it. It certainly helped me to get a better understanding of just how Chency’s criminal crew wired their take-over.

    • acquarius74 says:

      Maryo2 and Jim White: In my book, ‘Takeover’ by Charlie Savage (h/t Marcy), on page 77 last para I find:

      Because the OLC is so powerful, its leader –the assistant attorney general for the OLC–is required to undergo the vetting of Senate confirmation……But on 9/11, the OLC had no real boss–the result of an early feud between Ashcroft and the White House over who would control the legal team.

      Page 78: ….finally in July [2001] the white house and Ashcroft agreed on …Jay S. Bybee. The Senate did not confirm Bybee until more than a month after 9/11 . ….Bybee finally moved his family to Washington and assumed leadership of the Office of Legal Counsel after Thanksgiving 2001.

      (emphasis mine)

      So, Yoo had no “boss” between him and Ashcroft when he wrote the 09/25/2001 memo to Flanigan. Later, Bush/Cheney/Addington wanted Yoo for Chief of OLC when Bybee went to become the Judge. Ashcroft blackballed Yoo for going behind his back, which led to Yoo’s resignation in summer 2003.(page 182)

  21. LabDancer says:

    OT by a few degrees:

    Couple of threads ago, someone linked to some posts in the tpm galaxy by a blogger name of pseudocyants, purporting hidden support in the phrase in Article VI of the Constitution ending with “public danger” for the ‘constitutionality’ of indefinite preventative detention. Mary’s many posts expiating on Ex Parte Milligan should have sufficed to deter serious engagement of that line over here — and maybe did! AFAIK no one here bit — but now Alex Gibney at Planet Atlantic also hits the same nail with a different hammer:


    I can’t see material distinction between Obama’s deal and Gibney’s option #3; but #1 seems more utilitarian.

    • phred says:

      Thanks WO. By the way, the Guardian also has an article up about yet another man (in this instance a former British civil servant) for collusion in his torture in Bangladesh. The two key bits:


      Rahman says that he was the victim of repeated beatings over a period of more than two years at the hands of Bangladeshi intelligence officers, and he claims that a pair of MI5 officers were blatantly involved in his ordeal.

      The two men would leave the room where he was being interrogated whenever he refused to answer their questions, he says, and he would be severely beaten. They would then return to the room to resume the interrogation.


      On occasion, he adds, his wife would be held in a nearby cell, and his torturers would threaten to rape her if he did not cooperate.

    • behindthefall says:

      I wonder who reads the Guardian. That’s a strange stew of comments to Marcy’s column. Trolls and cynics dancing with the hopeless.

  22. damagedone says:

    Here is a link to an article that discusses Colin Powell’s interview last weekend on Face the Nation. Powell does not refute Marcy’s statements about the CIA actions or records. You would think that he should know more about who was being briefed. Given some of the comments over at the Guardian site, maybe it is worth pointing that out.


  23. fatster says:

    Ex-Detainee Describes Struggle for Exoneration
    In France, Algerian Savors Normal Life

    By Edward Cody
    Washington Post Foreign Service
    Tuesday, May 26, 2009

    PARIS, May 25 — ”When the nightmare finally ended — seven years at Guantanamo Bay, two years of force-feeding through a tube in his right nostril, the long struggle to proclaim his innocence before a judge, and finally 10 days of hospitalization — Lakhdar Boumediene celebrated with pizza for lunch in a little Paris dive.”

    Two-page article.


  24. fatster says:

    I found just a few clips from the Watergate hearings over at youtube. I was hoping to help people younger than we are understand what an amazing event those hearings were (watched them twice daily–once at work and then the replay later at home). Only one brief youtube video featured Sam Ervin, showing a heated exchange between Ervin and Ehrlichman’s lawyer. That video is for an Italian (I think) audience and has two announcers explaining everything in Italian so you can barely hear Ervin and the lawyer in the background. Sad that we can’t see Sam one more time in at least a few of his better moments. He was sumpthin’ else!

    And, yes, I’m older than sand.

    • bobschacht says:

      Well, I am also of an age to remember Watergate live (but not, unfortunately, in color). The thing that was so great about Sen. Ervin’s committee hearings is that they were on almost every day, and showed just about every Senator– even the Republicans– working together. They didn’t have Marcy, or The Lake, or even the Great Orange Satan, to help them understand the events of each day. But they did have a special prosecutor (Archie “Bowtie” Cox, succeeded by Leon Jaworski) to add fuel to the fire by occasionally announcing indictments for criminal behavior. And then within a month after the Ervin committee’s report, slam bang the House voted for impeachment. In other words, the process was open to the public, and it was the biggest gig in town. We need something like that, today.

      Bob in HI

      • fatster says:

        And the Constitution and Rule of Law held. We were on pins and needles wondering what that era’s Dick would do, but somehow we had the confidence that justice would prevail. ‘Course people like Sam Ervin, Cox, Dash, Dean, the great Barbara Jordan, even Richardson and Howard Baker were from earlier days when . . .

        Well, you know what I mean, Bob in Hi.

      • skdadl says:

        It’s true that the Senate committee report didn’t come out until June 1974, but it was the summer of ‘73 that was Sam Ervin’s summer, the summer of the Senate hearings, from which so much else flowed.

        Peter Rodino’s HJC began their hearings in May 1974, before the Senate report was out but after a pretty eventful fall and winter, and the next three months belonged to them. John Conyers was on that committee; so were Barbara Jordan, Charlie Rangel, Elizabeth Holtzman — back then, I knew them all; everyone did.

        It took both those years to do it, both committees and a lot of other principled actors as well. But you could feel the momentum build. The media turned. Some of the guilty confessed. Let it be, eh?

        • LabDancer says:

          “Let it be”: Okay, but just not in a non-election year when a president with a “mandate” can get things done!

          First year: Get ‘em biting and snapping at each other because the new sheriff is still too fast to catch and too big to eat. Then get ‘em conditioned to that big L on their foreheads [Torture: ‘The other guy claimed he didn’t do; well I MEAN it’; Sotomayor: Knock yourself out, Beauregard!; etc etc etc — so much controversy, I have check if my autonomic system’s still going.]

          Second year: On to the mid-terms: by then, the subcommittees under the likes of Whitehouse and Feingold and Nadler et al have fermented nicely and has everyone in the full committees fired up with the idea of a big fall Republican wienie roast.

          Year Three: economy’s finally hoppin’ and boppin’, people all headed off back to work on their bikes, their newly renovated public transit lines, and in their Volts; Exploding Heads Rule #3: “It’s never too early!” – exception: when the other side has to pick thru the dumpster among Mitt, Newt, Palin and the Huckster.

          Year Four: How do you like me so far?

          “To every thing — there is a season”

  25. Fenestrate says:

    Slightly OT but has anyone seen this yet?

    Congress moves to withhold detainee abuse photos

    Not sure if the link works, so here is the lead para:

    WASHINGTON (AP) — Congress is moving to stop a federal court order that would disclose government information to the public – this time the photos of terrorist detainee abuse that President Barack Obama no longer wants to release.

    edit: well, link seems to work here ok. Just not in Preview [shrug]

  26. Mary says:

    30/43 – even in the cya, all he can say is “key members” and he can’t even begin to claim that the full committees (as likely were required) or the Gang of 8 were briefed as required by the NSA, bc they weren’t. I still don’t understand why the Dems didn’t hit that and hard. You don’t need to revise a bunch of laws – you need to enforce what you have or at least mention to the press that the CIA’s own log shows illegal briefings that didn’t comply for years with the NSA and that was on Tenet’s watch.

    And maybe he needs to come back and explain why the CIA violated the NSA under his charge.

  27. maryo2 says:

    You are welcome. Now I am perplexed by the lack of information on Robert J. Delahunty. He doesn’t even have his own wiki page.

    Somebody had to tell Yoo what to write. If Bybee wasn’t in position yet, then it had to be Flanigan or Delahunty. And given the lack of available information on Delahunty, he is interesting. Flanigan is said to not have a background in Constitutional law so he relied on Yoo, but Delahunty does know Constitutional law:

    “His work and writing at the Office of Legal Counsel focused on the constitutional law of foreign relations, Presidential war powers, public international law, treaties, and immigration law.”
    – from his faculty biography at Univ. of St. Thomas School of law


      • Mary says:

        Flanigan was Addington’s back up when Bellinger tried to get Gonzales to reconsider GITMO, what with the file being papered by the CIA expert saying that a bunch of the people there were innocent.

        He stood with Addington, sucked in that info, then nodded sagely as Addington had a hissy fit and swore that a little something like innocence shouldn’t keep anyone the President had labelled as being an unlawful enemy combatant being tortured. Grand guy.

  28. fatster says:

    US lawyers ask Afghan court to help Gitmo inmate

    Military lawyers seek release of Afghan detainee from Guantanamo they say was 12 when arrested

AP News
    May 25, 2009 13:59 EST

    “U.S. military lawyers asked Afghanistan’s highest court Monday to demand the release of a Guantanamo prisoner [Mohammed Jawad] they say was only about 12 years old — not 18, as the military maintains — when he was sent to the detention center in Cuba.”


  29. foothillsmike says:

    As part of this investigation moving forward shouldn’t Colin Powells comments be reviewed regarding the briefings he received at the WH?

  30. Mary says:

    Lessee – Chemerinksky, the Small God of Con Law, thinks she’s smart and has well reasoned, good opinions. The nutcases at the Corner who are still counting words in Obama’s books to see of they were ghosted by terrorists think she’s not sharp.

    What a tough choice. *g*

  31. fatster says:

    Source: CIA Dissembles In Briefings

    By Zachary Roth – May 26, 2009, 6:32PM

    “Yet more evidence that the CIA may not have been totally up front with Nancy Pelosi during that contested torture briefing from 2002…

    “A former “deep-cover” CIA operative tells CQ’s Jeff Stein that agency briefers often hide facts or shade the truth. “They mumble, they dissemble, and there’s a lot of ‘on the one hand… ‘” said the operative, who has written harsh critiques of the CIA, under the pen-name Ishmael Jones.”


  32. Mary says:

    129 – the other nifty story at TPM is the link to Gonzales telling Blitzer that he (Gonzales) can’t be blamed for the torture cuz he wasn’t at DOJ whenn those memos were written.

    And of course Blitzer didn’t ask the follow up, about the Mitchell cables and the oks for torture from Gonzales in his capacity as WHC or, since that gave him no capacity to advise Mitchell and to ok torture, maybe in his capacity as Guy Who Said Go Ahead.

      • fatster says:

        “Jon Stewart: “After weeks of mock testimony, there you have it. Alberto Gonzales doesn’t know what happened, but he assures you what he doesn’t remember was handled properly.”’


    • fatster says:

      “And of course Blitzer didn’t ask the follow up . . . “

      Of course not. We don’t want to know too much, ya see. Bad for us, bad for the country.

  33. fatster says:

    Despite looming shutdown, Gitmo getting an upgrade

    “Even with President Obama’s looming deadline to close the Guantanamo Bay military prison, and the U.S. Senate’s refusal to even supply funding to do so until its prisoners can be transferred anywhere but the United States, somehow money has been approved to upgrade the prison’s access control system and installing new video surveillance cameras.

    “Political opponents of the prison, infer what you will.”


  34. Poicephalus says:

    If by they you mean the Addington, Rumsfeld, Gonzales, Cheney gang, then yes they were being consistent.

    I prefer the Yes, He (Cheney) was being consistent.

  35. fatster says:

    From the Department of Pre-Crime

    By Scott Horton

    “I’m just back after spending ten days in Italy, recharging and also meeting with European counterterrorism experts, judges, and prosecutors, and joining with many of them in an effort to assess where the Obama Administration is taking us. In the midst of my meetings there, Barack Obama delivered a major speech on the issue at the National Archives. The speech consisted of lofty rhetoric that was surprisingly short on details, which makes me hesitant to express a final judgment. Still, one of the European judges I met with put the question very well. “Every government is necessarily a prisoner of the past, and specifically of the government that preceded it,” he said. “The real question here is whether Obama is more of a prisoner of the Bush years than he needs to be.”’

    More, much more.

  36. fatster says:

    O/T, or Sotomayor nomination
    Corpos react. Oh, yeah.

    • MAY 27, 2009
    Record Shows Rulings Within Liberal Mainstream

    Despite Democratic Bent, Judge Has Sided With Corporate Defendants; Court’s Frequent 5-4 Split Likely to Remain.


    WASHINGTON — “Judge Sonia Sotomayor has built a record on such issues as civil rights and employment law that puts her within the mainstream of Democratic judicial appointees.
    . . .
    “The question is whether Judge Sotomayor would, like Justice Souter, be a solid judicial craftsman, or emerge as a leader who can mold majorities. Liberals have long sought such a jurist since the departures of William Brennan and Thurgood Marshall nearly two decades ago.”


  37. Rayne says:

    fatser (150) — amusing, had been thinking of Philip K. Dick’s Minority Report earlier today, might have a post for Oxdown tomorrow on precrime.

    Semi-OT — at least this is not about the three threads EW draws together in this post, although it is about timing. (As always, it’s about timing.) It’s also about drawing together other threads, now that we have the unfortunate luxury of time and distance with which to scrutinize events of the past, like these:

    After the war ended, the Top Secret order signed by President Bush to oust Hussein included a rare “lethal finding” — meaning deadly action could be taken if necessary. Under contract to the CIA, Rendon was charged with helping to create a dissident force with the avowed purpose of violently overthrowing the entire Iraqi government. It is an undertaking that Rendon still considers too classified to discuss. “That’s where we’re wandering into places I’m not going to talk about,” he says. “If you take an oath, it should mean something.”

    Is it possible that the presidential finding construed as authorization to render, detain and torture goes back to a still-classified executive order from Poppy Bush?

    Three weeks after the September 11th attacks, according to documents obtained from defense sources, the Pentagon awarded a large contract to the Rendon Group. Around the same time, Pentagon officials also set up a highly secret organization called the Office of Strategic Influence. Part of the OSI’s mission was to conduct covert disinformation and deception operations — planting false news items in the media and hiding their origins. “It’s sometimes valuable from a military standpoint to be able to engage in deception with respect to future anticipated plans,” Vice President Dick Cheney said in explaining the operation. Even the military’s top brass found the clandestine unit unnerving. “When I get their briefings, it’s scary,” a senior official said at the time.

    Is it possible that torture was a part of this particular deception process, intended to provide content which could be used by this particular contractor, which though contracted to DoD at the time also worked in the past for CIA?

    As Jane Mayer reported, Poppy Bush’s “lethal finding”

    authorized the C.I.A. to spend a hundred million dollars to “create the conditions for removal of Saddam Hussein from power.”

    Could those conditions include the use of torture when creating media spin through Chalabi and the applied misinfo of al-Haideri wasn’t enough? Would be nice to find somebody who could speak to that finding…or declassify it, if the subject of the finding is now dead…

    [all bold above mine, btw]

    • acquarius74 says:

      Thank you, Rayne, for the info and the link. John Rendon and his company should all be in GITMO with Cheney and his company! This article was published 2005! In your above quote Cheney admits to deception as to future plans – he deceived this nation into war in which we’re still losing lives and treasures.

      Please write one of your masterpiece Oxdown diaries on this, Rayne.

    • acquarius74 says:

      Rayne, in this article it is stated that Rendon’s company was also hired by CIA to target journalists, particularly in the mideast, either soft-sell or hard-sell. In 2008 there were 40 journalists killed; and through March, 2009 eleven more.

      This information should bury the clandestine arm of the CIA. Ain’t gonna happen.

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