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.

Newly Leaked Emails Give Some New Insight into the 2004 White House Torture Debate

The New York Times has obtained three 2004 emails from then Deputy Attorney General Jim Comey, that lend some new insight into the internal discussions that surrounded the issue of interrogation techniques and the publication of the "torture memos" in 2004 and 2005.

I first read the emails and then the New York Times article and wondered if the New York Times had analyzed the same memos that I had read. From the NYT piece:

When Justice Department lawyers engaged in a sharp internal debate in 2005 over brutal interrogation techniques, even some who believed that using tough tactics was a serious mistake agreed on a basic point: the methods themselves were legal.

Previously undisclosed Justice Department e-mail messages, interviews and newly declassified documents show that some of the lawyers, including James B. Comey, the deputy attorney general who argued repeatedly that the United States would regret using harsh methods, went along with a 2005 legal opinion asserting that the techniques used by the Central Intelligence Agency were lawful.

There is nothing in the emails that indicate Comey had agreed that the interrogations techniques outlined in the DOJ "torture memos", were legal. To the contrary, he raised fierce objections to the program and warned that the opinions would come back to haunt the administration. emptywheel has more analysis of the problems with the New York Times article here.

So, what do these newly leaked emails tell us? Glenn Greenwald has a great post that breaks down the emails:

The DOJ torture-authorizing memos are perfectly analogous to the CIA's pre-war intelligence reports about Iraq's WMDs. Bush officials justify their pre-war statements about WMDs by pointing to the CIA's reports -- as though those reports just magically appeared on their desks from the CIA -- when, as is well documented, Dick Cheney and friends were continuously pressuring and cajoling the CIA to give them those threat reports in order to supply bureaucratic justification for the attack on Iraq. That is exactly how the DOJ torture-authorizing memos came to be: Dick Cheney, David Addington and George Bush himself continuously exerted extreme pressure on DOJ lawyers to produce memos authorizing them to do what they wanted to do -- not because they were interested in knowing in good faith what the law did and did not allow, but because they wanted DOJ memos as cover -- legal immunity -- for the torture they had already ordered and were continuing to order. Though one won't find this in the NYT article, that is, far and away, the most important revelation from the Comey emails.

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But the real story here is obvious -- these DOJ memos authorizing torture were anything but the by-product of independent, good faith legal analysis. Instead, those memos -- just like the pre-war CIA reports about The Threat of Saddam -- were coerced by White House officials eager for bureaucratic cover for what they had already ordered. This was done precisely so that once this all became public, they could point to those memos and have the political and media establishment excuse what they did ("Oh, they only did what they DOJ told them was legal"'/"Oh, they were only reacting to CIA warnings about Saddam's weapons"). These DOJ memos, like the CIA reports, were all engineered by the White House to give cover to what they wanted to do; they were not the precipitating events that led to and justified those decisions. That is the critical point proven by the Comey emails, and it is completely obscured by the NYT article, which instead trumpets the opposite point ("Unanimity at DOJ that these tactics were legal") because that's the story their leaking sources wanted them to promote.

These emails give interesting insight into the pressure that was put on the DOJ by former Vice President Cheney, Harriet Miers, David Addington, and President Bush to publish the opinions expressed in the "torture memos", that the use of these various techniques (that were already being used) were legal. Comey even mentioned that he believed that this program would eventually become public and that the Administration would justify their actions by pointing to these very DOJ opinions. Greenwald points out the important point that the pressure being put on the DOJ to release these opinions, are a very good indication that the opinions were released not in good faith, but because of the intense pressure that the Bush Administration put on DOJ so that they would release opinions that were concurrent with what they wanted to do.