More on Cheney's Torture Confession

I wanted to follow-up on this post in which I discussed former Vice President Cheney admitting that he was a "big supporter" of waterboarding.

There were a couple of reactions to Cheney's appearance on ABC this past Sunday that were right on the money and advance this discussion surrounding his behavior. I wanted to start with Glenn Greenwald who feels that Cheney knows exactly what he is doing...he is taunting the current administration:

In general, people who commit felonies avoid publicly confessing to having done so, and they especially avoid mocking the authorities who fail to act. One thing Dick Cheney is not is stupid, and yet he's doing exactly that. Indeed, he's gradually escalated his boasting about having done so throughout the year. Why? Because he knows there will never be any repercussions, that he will never be prosecuted no matter how blatantly he admits to these serious crimes.

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Does anyone doubt that Cheney's assessment is right? And isn't that, rather obviously, a monumental indictment of most everything?

I think that this is sadly quite accurate. Cheney is not a stupid man and it is quite clear that he feels that he can speak freely about his support for what Attorney General Holder has explicitly stated, is torture. The Obama Administration has held true to their pledge to "look forward" and not to the past on the issue of torture, even when it is clear that crimes and have been committed and even when now, a former Vice President admits to supporting torture on national television.

Scott Horton lays out the section of the Federal Criminal Code that Cheney admitted to violating:

Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?

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What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants.

It should be pointed out that not only did Cheney admit to supporting torture, but right at the end of the interview was this exchange (emphasis mine):

KARL: And, finally, I know that you have a reunion coming up later this month with President Bush. This'll be the first time you've seen him since leaving office, face to face?

CHENEY: Pretty much, yes. We talk on the telephone periodically, but the first time I've seen him since January 20th.

KARL: What does he think of you being so outspoken in contrast to him?

CHENEY: Well, I don't think he's opposed to it, by any means. I'd be inclined to let him speak for himself about it. The reason I've been outspoken is because there were some things being said, especially after we left office, about prosecuting CIA personnel that had carried out our counterterrorism policy or disbarring lawyers in the Justice Department who had -- had helped us put those policies together, and I was deeply offended by that, and I thought it was important that some senior person in the administration stand up and defend those people who'd done what we asked them to do.

And that's why I got started on it. I'm the vice president now -- ex-vice president. I have the great freedom and luxury of speaking out, saying what I -- what I want to say, what I believe. And I have not been discouraged from doing so.

Cheney mentions that the lawyers at the Justice Department had "helped us put those policies together" and that he felt it was his role to "defend those people who'd done what we asked them to do." In other words, the Bush Administration wanted to torture detainees and so they asked lawyers like John Yoo and Jay Bybee to craft memos that would allow them to do so. Yoo and Bybee obliged. This is conspiracy to torture and as Scott Horton mentions, a serious crime.

There has been no excuse to investigate for some time now and with the former Vice President's recent comments, there is no justification that the current Justice Department could use to defend not prosecuting those who broke such serious laws.

More on Jim Comey's Leaked emails and the Upcoming OPR Report

Dan Froomkin has a post today that is pretty thorough and does a good job of laying out some of the latest developments in the conversation surrounding torture. After these emails were leaked to the New York Times the other day, the story continues to become clear. From Froomkin's post:

Three newly-disclosed Justice Department e-mails thoroughly vindicate the most cynical suspicions about how former vice president Dick Cheney bent ostensibly independent Justice Department lawyers to his will and forced them to manufacture legal cover for his torture policies.

The e-mails, which date back to a 2005 re-evaluation of interrogation policies, were written by then-deputy attorney general James Comey. They reveal Cheney's extraordinary influence over then-attorney general Alberto Gonzales and key lieutenants -- including top officials in the department's Office of Legal Counsel (OLC).

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In his April 27 e-mail, Comey describes telling Gonzales directly about his "grave reservations" about the second memo. Gonzales's response? "The AG explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP's request and the AG had promised they would be ready early this week."

Comey also notes that OLC lawyer Patrick Philbin had previously reported that then-acting OLC director Steve Bradbury "was getting constant similar pressure from [White House counsel] Harriet Miers and [Cheney counsel] David Addington to produce the opinions." Comey adds: "Parenthetically, I have previously expressed my worry that having Steve as 'Acting' -- and wanting the job -- would make his susceptible to just this kind of pressure."

By the end of the April 27 e-mail it appears that Gonzales has agreed to give Comey a chance to alter the second memo. But in the April 28 e-mail, Comey recounts a conversation with Ullyot, Gonzales's chief of staff, in which it becomes clear that Comey has been outflanked by Cheney and that the memo will go out as written.

As more emails and documents are released, it is becoming more and more clear that there was a severe amount of pressure applied by the White House onto the AG's office and down onto other employees of DOJ, including employees of the OLC. After John Ashcroft's departure as Attorney General it appears as if any resistance to the pressure that was being applied by the Vice President, disappeared. Alberto Gonzales merely passed that pressure on to his employees at DOJ in order to get these torture memos released.

Scott Horton weighs in:

This highlights a key question hovering over Gonzales’s term as attorney general: to what extent were his actions dictated to him by political figures in the White House? A special prosecutor, Nora Dannehy, is now studying aspects of that question and is believed to have Gonzales squarely in her sights.

Another aspect that surrounds the leaking of these emails is the New York Times article that accompanied their release. I have already posted an item about Glenn Greenwald's excellent breakdown of why the NYT article misrepresents the information contained within these emails, but Scott Horton makes another couple of important points:

But beyond this, some actions speak louder than documents, and in this case it is remarkable that a number of the dissenters, led by Comey and Goldsmith, reacted to the reconfirmation of the Bush torture program by leaving the Justice Department. That strikes me as a very important fact, which the Times writers don’t find worth a mention. Second, this information almost certainly came to the Times from John Yoo, Steven G. Bradbury, or Jay Bybee, who are the targets of an internal Justice Department ethics probe, or from persons close to them. Each of these individuals had access to the complete report and the documents it assembled. At the order of Michael B. Mukasey, who did everything in his power to spike and influence the report, they were to receive copies of the entire report in order to comment on it; indeed, again at Mukasey’s behest, Bradbury was even authorized to influence the report from inside the team that assembled it. The torture memo writers are eager to show that their views were in fact widely shared by lawyers inside the Justice Department and thus were not aberrational. It’s almost certain that one of them decided selectively to leak documents that would help make their case, in the process pushing the line they wanted the Times to run with. Shane and Johnston swallowed their line uncritically. In fact, there is a such a failure of critical detachment in the Times reporting that bad journalistic practice hardly begins to explain it. Rather, it looks like the reporters are consciously cultivating their sources by giving their story a furious spin that the torture camp will love.

In addition, the Office of Professional Responsibility is slated to release a report later this summer in which they examine the methods by which former OLC lawyers, John Yoo, Jay Bybee, and Steven Bradbury came to their conclusions in the torture memos. In a separate piece posted on the Daily Beast in early May, Scott Horton cites sources as saying:

The report sharply criticizes the quality of the legal work contained in the memoranda, and suggests that the lawyers who wrote these memos failed to exercise the independent judgment and professionalism that they owed their clients. The report suggests that some of the memos may have been created as part of an after-the-fact attempt to provide legal cover for conduct that was recognized as potentially criminal. The report also recommends that at least two of the memo writers be referred to bar associations for disciplinary measures—which might include a reprimand, suspension, or disbarment. Bar disciplinary panels rarely mete out severe sanctions to lawyers for mistakes made in connection with legal opinions, but they also tend to give deference to conclusions made by the Justice Department when it is reviewing its own personnel.

Should it come as any surprise that Jim Comey's emails were leaked with the spin that he acknowledged that the torture memos were legal in order to pre-empt the OPR report that is going to come out later this summer? Surely those who defend Yoo, Bradbury, and Bybee would have much to gain from making this argument. It should also come as no surprise that the New York Times repeated this type of spin without focusing on the bigger picture and critically reporting on the contents of these emails.

Military Agency Warned Against Torture in July of 2002

The Washington Post has obtained a memo written in 2002 by the Joint Personnel Recovery Agency (JPRA), the military agency which provides advice on interrogation techniques.

This memo, written in July before the August, 2002 Bybee memo, uses the word "torture" when describing techniques that would apply "extreme duress" to those under interrogation and warns:

In essence, physical and/or psychological duress are viewed as an alternative to the more time consuming conventional interrogation process. The error inherent in this line of thinking is the assumption that, through torture, the interrogator can extract reliable and accurate intelligence. History and a consideration of human behavior would appear to refute this assumption.
(NOTE: The application of physical and or psychological duress will likely result in physical compliance. Additionally, prisoners may answer and/or comply as a result of threats of torture. However, the reliability and accuracy information must be questioned.)

The memo also goes on to warn of operational concerns associated with these interrogation methods:

In numerous cases, interrogation has been used as a tool of mass intimidation by oppressive regimes. Often, the interrogators operate from the assumption (often incorrect) that a prisoner possesses information of interest. When the prisoner is not forthcoming, physical and psychological pressures are increased. Eventually, the prisoner will provide answers that they feel the interrogator is seeking. In this instance, the information is neither reliable nor accurate

In addition to the warnings about the quality of information obtained by torture, JPRA also warns that the use of torture techniques by the United States could provide justification for other regimes who may capture U.S. personnel, to use torture techniques.

The memo concludes:

The application of extreme physical and/or psychological duress (torture)has some serious operational deficits, most notably, the potential to result in unreliable information. This is not to say that the manipulation of the subject's environment in an effort to dislocate their expectations and induce emotional responses is not effective. On the contrary, systematic manipulation of the subject's environment is likely to result in a subject that can be exploited for intelligence information and other national strategic concerns.

Note that the word "extreme" is underlined in the original document.

While the memo is newly released, the information which it warns against has been known by many, but with so many torture apologists coming out in defense of law breaking, this memo is worthy of review. You can read the full Washington Post article by clicking here.