Curiously, Comey also records feeling like he had no options to force the issue here, “given that I have already submitted my resignation.”

funny, another man might think that to instead be a liberating fact allowing all kinds of noise to be made. Of course that would have to be a man not focused on himself moving forward as a high priced defense contractor whore.

Incidentally, the reference–on May 31–to “my concerns about the legal opinion”–must refer to the May 30 one (given the singular reference and the timing). Of course, the NYT’s source leaves all discussion of that one out, as well.

Not to be my typical, beat the dead horse self, but to be clear on all this

1. Comey did concur in the first Bradbury memo. Concur – good to go with it. Go read that memo again and then think through what kind of a man concurs in that. He was very much good to go with covering for the existing torture and torture crew, including the waterboarding in that memo.

2. Comey’s objection on the second Bradbury memo was that it was framed as a reliance memo for FUTURE use, and while he was good to go with it, he wanted it limited to the case of mulitiple co-existing tortures that he knew about (and knew that the multiple torture techniques sessions had prior oral approval). If they would have let him re-write it to be in line with the “specific person/fact pattern” format of the first Bradbury memo, he’d have been ok with that and volunteered to do that.

I get the same feeling as I did from the surveillance program issue. There, IMO, he was mostly concerned with the FISCt getting ready to go after the lawyers – including Ashcroft – and Mueller and he was worried about being put in a position (and having Ashcroft put in that position) of directly defying court orders and daring them to go to contempt (and he knew from his gal pal Townsend how tought they could be) He was ok with the massive felony program as long as the FISCt wasn’t going to go after the lawyers – once it looked like they might, the main thing (IMO) he wanted to fix was the firewall procedures so that the program could go on, but the lawyers wouldn’t be as at risk for direct violation of court firewall orders.

Here IMO he was wanting to stop the liability roll. He was taking an Obama-esque, “what’s done is done, let’s cover for everyone and keep them from ever having to pay consequences for disappearing children and freezing people to death before tossing them in an unmarked grave – BUT, let’s make them very specific memos that can’t be used to insulate future acts. So no future acts boomerang back to OUR liabiliy, just the old stuff that is Bybee-Yoo’s liability getting protection.

In any event, let me add to the 1 and 2 above a 3 – He never corrected the record to the Sup Ct on Clement’s statements, despite what he knew about – including waterboarding; and a 4 – He went on to sell a whole boatload of half truths in a smiley face presser on Padilla – deliberately trying to influence the Court to uphold the US detention on US soil of a US citizen, even while he had access to the Pentagon report of the Geneva Conventions violations at the Brig; and then there’s the 6 – he knew about at least one video that he mentions to AGAG as being problematic for CIA (no wonder it got destroyed a few months later) and yet he never sent out any preservation orders on torture in general or that video in specific and he never seemed to follow up on what torture evidence was being produced to the many courts involved in cases where the torture was pertinent and even subject to actual discovery orders; and then there’s a 7 – despite his knowledge of DOJ approvals and authorizations of forced nudity, stress positions, degradation/humiliation etc. he let his boypal Haynes sell the “few bad apples” storyline to scapegoat the soldiers and insulate Rumsfeld, Cheney et al and then topped it off with putting together a support cabal, including Philbin, Goldsmith and Thomspon (who truly creeps me out for what he did to Arar), to try to get Haynes in a Circuit Court seat after letting him scapegoat those soldiers AND cover up the rapes and sodomy.

I could, but won’t, go on. But I will say that someone like Zelikow gets shredded for a lot less IMO.

I think Comey’s torture concurrence on the first Bradbury memo would be pretty interesting to the Burge defense counsel – after all, all that stemmed from interrogations in a pressure cooker situation too.

ROGER!!

@ 84

I think that you are ignoring a lot of the context I have given – context of actions from Higazy, through landing at Lockheed with stopping points at the Arar affidavit and the Padilla press conf and pawning off Haynes even knowing about the the lie of the “rogue soldiers” that he spun etc.

But take a look at the emails themselves. They are file papering emails. His concurrence on the May 10 email has the dog that doesn’t bark context in that he doesn’t yarn one about it. When a lawyer says they concur on a legal opinion, I’m not sure what further context you feel you need to detemine that he … concurred with the first opinion. ?? We are pretty darned good at the “with the exception of” references in writings that you can tell he produced for them to set context later.

And you have no idea of the context on it. You have twelve words among hundreds of others opposing a different memo. I agree that it’s most likely that he’s trying to play an Obama game of isolating the past but trying to prevent this in the future, but to make that argument or any other, you need more context than you’ve got.

You know, I think it’s fine for you to make the argument that:

And it appears–though we have no context for that either–that he opposed the third memo.

because it is based on some objective facts and you point out the limits.

I also think that given the fact that Comey specifically references Bradbury’s other memo as good to go out and that he concurs, I’m on pretty darn solid ground to say he concurs in that memo. My spec on why he concurred on it, vs. not the second memo, the “Obama-esque” approach, is IMO the most charitable argument that you can make from the concurrence. The argument for concurrence is either that he may not actually agree with the memo but is ok with it bc it is limited to the specific circumstances laid out in it and he thinks it won’t be able to have broad application other than to sever out protection for a few CIA agents and contractors — OR —- he actually is ok with the legal conclusions of the memos in a more general aspect.

I gave him the benefit of the most narrow context possible from a concurrence in the opinion. Concurrence by a lawyer in a legal opinion HAS context. The memo generating the concurrence is the context.

The context is also the IG report if you want to go there. With the IG report in hand, the Abu Ghraib pictures, the continued by now multi-year interrogation detention of Padill who he handed off, etc. Comey concurred in a memo authorizing head slamming, forced nudity, hypothermia, etc. as “legal” and he’s done it knowing that, with all the pressure after Abu Ghraib for investigations (McCain also putting on pressure on Ghost detainees and while I agree Dems were doing things too, they couldn’t generate the same pressure on the administration at that point in time as McCain could or the press that he could)

I don’t think that his concurrence is the most important info from the emails either (in large part bc I’ve already said before that if he had papered memos the way Mora did and apparently even Zelikow did, we’d know about it before now and if he didn’t, then to some greater or lesser extent he was going along to get along. Both Mora and Zelikow had far less power, but lawyers who really vehemently disagree with advice being given to a client paper it and on something like torture, you’d do it in a memo. The reality of the situation with Comey, as with Mora and Zelikow, is that his “concurrence” or his “objections” made no difference, one way or the other, to the OLC memos. He, like Mora and Zelikow, was not OLC and the only true “superior” for OLC was AGAG.

So to be clear, it made no difference what Comey said or didn’t say – this walks directly to AGAG.

Comey also tells AGAG that if they let him rework the second memo to make it more like the first – authorizing combinations but in particular fact context (one he knows about some, enough to know that oral authorizations were given for the case that is causing the concern) Again, I give the most charitable argument I can think of for him on that – wanting to protect the torturers who already tortured for Bush but not leave the door wide open for the future. And on the context front, I point to the fact that this is pretty much what he did in Higazy (protect the existing FBI “interrogation”), and in Arar (protect Thompson, Ashcroft et al for their involvement in the shipment to torture) and in Padilla (protect the hand off to Executive abuse on American soil and try to coerce the court to protect that as well), etc.

Those are items of context that get lost and ignored when people light up over the appointment of Fitzgerald and the hospital showdown (which are also items of context). But there is a reason why I mention these other areas of context over and over (and also the context that the way Fitzgerald was appointed, rather than using an outside counsel, meant no report and gave broad ability to the acting AG [who might well have become McNulty – no one ever has bothered to nail that down] to change the mandate at any point and in complete secrecy) and that the hospital showdown might have been as much about getting the lawyers at DOJ off the hook with FISCt judges and that ‘teh program’ Comey ‘reworked’ is the one that Diggs-Taylor found to be unconstituional, is bc without THAT context (which I don’t recall many giving in the past) then people begin to have this assumption that if Comey is involved, then it is “straight arrow” and the results would meet the “boy scout” standard.

And my experience tells me that is just crap.

The result is that I wasn’t surprised at Comey’s support for Haynes, despite all the context relating to that (including Haynes parsing to the SJC) I wasn’t surprised at Comey’s support for the FAA. And I’m not surprised that he concurred (without need even) with the first OLC memo. And I think that it is harmful to set Comey up as someone who will do the “straight arrow” thing in a way that give de facto credibiilty to things he goes along with that should not exist.

Now, so much time has been spent for so long building the myth of Comey, the Good Guy, with Dems on the SJC fawning over him too, that it will now be that much harder to treat the first Bradbury memo in the way it SHOULD BE treated – as an abomination that no lawyer of decency should have gone along with. But everyone has spent so much effot on the establishing the heroic, decent guy persona of Comey that the FACTS of what he does keep biting the rule of law in the butt.

I agree he’s not the worst guy out there. I try to give him the charitable take on his concurrence in the Bradbury memo (find a more charitable one and I’ll consider it too) But it is just sipping on poisen to keep arguing that he’s the straight arrow good guy conservative. The facts just don’t line up with that. He did have the hospital showdown and should get credit for that – but that was mostly about protecting people in the Dept. That’s pretty much a pattern, again, from facts that provide that context. The involvement in the US atty scandal shows both the good and the bad of that. Ranging from protecting a Charlton to also protecting a Biskupic on a case that should have made someone’s eyes pop.

You know he opposed the release of the second memo (for more reasons than you let on–in fact for reasons that are appear to be similar to ones you have written about).

I’m not sure you mean about the “for more reasons than I let on” ? I was focused on the memos, which don’t provide a lot, but do provide one reference to specifics from his conversation with AGAG’s COS, and I spelled out that reference, in part to the memos setting a authorization pathway for “prototypical” interrogations of any detainee, seemed to me to be an indication that he shared that same concern I had on that. So I think I pointed out what you seem to be saying I didn’t – that he and I may have had a shared concern on that. He also went on to say that was just a “small slice” of his concerns, but I don’t see where he actually goes into what they are, so I’m not sure what secret knowledge of “for more reasons than I let on” that you think I have and kept back. ??

If I was speculating about the “small slice” I would say that he some of what he was worried about but didn’t want to put in even his emails to Rosenberg and wanted to discuss face to face with AGAG would have included that providing such a broad based memo would be implicated as a defense in cases already tried for torture and related abuse and would have conspiracy implications under the Torture conventions and might waltz DOJ directly into liability back upchain on war crimes under the War Crimes Act, etc. I could see a whole hell of a lot of concerns he could have had, but I was looking at what the email said.

He’s not a hero, I’ll grant you that. But the day that you ignore a lot of evidence of him opposing torture in general–and trying to run the bureaucracy–to take an isolated quote to hammer him is the time when you’re playing the same games with this stuff as the NYT.

I know you are saying (now more frequently than before) that he isn’t a hero, but too often it is said the same way pro-life groups say they are against the murder of Tiller.

Where is the evidence of him “opposing torture in general” in either these emails or elsewhere that I am ignoring? In his Arar affidavit? In his Padilla press conf? In his memo arguing that DOJ pursue charges against CIA torturers (havent’ seen that one)? In his memo to the file objecting to the Bradbury memos – something even a Zelikow generated? What I seem from the facts is a concurrence in the May 10 specific memo and a desire to make the other May 10 memo more specific to particular fact patterns. I think we are in fundamentally different places if you see that as “opposing torture in general” bc I don’t. I see it as cagey lawyering – let’s give all our pals a free pass but not do it in a way that future actions will walk complicity for them back to us.

With Levin, Goldsmith and Comey I have seen the unwillingness to be a Taft or a Mora. They are ok, over and over, with the footnote here and the withdrawal without replacement etc – the failure to just say “this is wrong” and instead to say, “hey, let’s insulate everyone already involve but let’s not do this in the future bc we might get in trouble for it”

And I don’t use 12 words from an email to support that – I use a lot of other context that you never mention. That’s why I mention it and of course you can’t mention everything in every post anymore than I can in every comment. So while you try to point out what NYT didn’t – and I think that’s a good thing and support it – now and then there are things you don’t as well. And now and then I flat out get things wrong – I’ll ante that up in the que too.

It’s absolutely true that the NYT misses a lot from the emails and totally ignores that Comey objected to the second memo. I don’t think it is true that he objected to torture as you are saying, based on the emails. The first memo that he did concur in is legal authorization to torutre. The second email is not one that he wanted have nixed (iow, there’s nothing to indicate that he ahd some strange “it’s ok to waterboard, but not waterboard someone with forced nudity as well” branched objection to torture – an, “its ok to torture with single techniques but not with combined techniques” concept, but rather that he wanted to make sure they were insulating the guy(s) who participated in a specific interrogation(s) that used combined techniques and who had oral authorization.

You think that is probably the Ghul interrogation. I don’t agree or disagree. I could see it being that – or being someone like Nashiri (someone who was severely hypothermic or had been through head banging or excessively lengthy sleep deprivation that were combined with waterboarding might have been more likely to have had a “giving up” reaction to the waterboarding for example)

I agree those are the kinds of things that should be discussed and I agree that the NYT didn’t spell out Comey’s objections to the second May 10 memo and possibly the last memo and that is misleading. I do think it is ALSO misleading to say that he was objecting to torture in general when he not only (not the 12 words) concurred in the first memo, but also held the Padilla presser and was charged with the Higazy investiup, and sat silent through Clement’s misreps to the Sup Ct and sat silent through Rumsfeld/Haynes characterization of Abu Ghraib and scapegoating of soldiers and still tried to get Haynes on the Cir bench and never pushed for preservation orders or issued them directly and never acted to insure compliance with court orders on torture evidence (including in a case like Padilla where he was direcgtly involved) etc.

There’s a lot more than 12 words there and I think the “other side” (of the hospital showdown and appointing Fitzgerald etc.) is already well represented. I point out the rest over and over bc that’s how advocacy works. When just one aspect gets all the attention, you don’t get to the right endpoint.

FWIW.