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.

[...]

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?

[...]

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.

ACLU Releases "Tortured Logic" Video

The ACLU has released a video of various entertainers reading one of the "torture memos" that was authored by Jay Bybee. (h/t Valtin) From the ACLU's YouTube page:

ACLU video shows prominent figures like Oscar-winning director Oliver Stone and a 9/11 family member reading from one of the infamous Bush administration legal memos used to justify the use of torture against detainees in U.S. custody. The video calls for accountability and the restoration of the rule of law.

The video includes appearances by Oliver Stone, 9/11 family member Patricia Perry, actors Rosie Perez, Noah Emmerich, John Doman and Reg E. Cathey, and musical composer Philip Glass, among others, reading directly from a memo authored by Jay Bybee, former head of the Justice Departments Office of Legal Counsel under the Bush administration. The memo was released in April as part of a Freedom of Information Act lawsuit filed by the ACLU.

This video comes as Attorney General Eric Holder appears poised to launch an investigation into CIA interrogation abuses. Though this is being touted by some as a step forward in trying to hold torturers to account, the Chicago Tribune reports:

A senior Justice Department official said the probe Holder envisions would be "narrow" in scope, focusing on "whether people went beyond the techniques that were authorized" in Bush administration memos known for their extreme interpretations of anti-torture laws.

This so-called "investigation" will likely accomplish little and may not even result in criminal prosecutions. These investigations will also do nothing in examining those who authorized the torture policies or the Bush Administration officials who pushed for such policies despite any legal ramifications. Holder, and the Obama Administration, continue to turn a blind eye to abuses of the law by members of the previous administration which leave this country open to repeating the same abuses due to the lack of consequences for law-breaking. The ACLU's video is below:

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).

[...]

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.

Liz Cheney: We Did Not Torture

Liz Cheney joins the ranks of those who are defending torture. Somehow she thinks that because the United States used waterboarding as part of the SERE training and that since we would not torture our own people, that this means that waterboarding (along with the other techniques described in the torture memos) are not torture. She even goes so far as to say that the memos were very careful in outlining how far we could go before it was considered torture. (Waterboarding for 39 seconds = not torture, waterboarding for 41 seconds = torture?) Nevermind the fact that the Bush Administration did not even abide by the regulations set out in their own legal memos.

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Rich Lowry: Torture Memos Took on a "Comic Aspect"

Rich Lowry thinks that the torture memos are a "source of pride" and...in a way...kind of funny:

Rightly considered, the memos should be a source of pride. They represent a nation of laws struggling to defend itself against a savage, lawless enemy while adhering to its legal commitments and norms. Most societies throughout human history wouldn’t have bothered.

[...]

In contrast, we carefully parsed each of our techniques to ensure it wouldn’t cause “severe physical or mental pain or suffering.” This touchingly legalistic exercise at times took on a comic aspect. We could put a caterpillar in a box with a detainee afraid of stinging insects, Abu Zubaydah, so long as we didn’t falsely tell him the caterpillar was a threat to sting. We could put detainees in diapers so long as “the diaper is checked regularly and changed as needed to prevent skin irritation.”

Bush Administration Pressured Interrogators to Elicit False Confessions Through Torture

McClatchy Newspapers are reporting that the Bush Administration applied "relentless pressure" on interrogators to apply "harsh techniques" on detainees in order to obtain information that would connect Al Qaeda to Saddam Hussein. It was during this time period that Khalid Sheik Muhammed was waterboarded 183 times and Abu Zubaydah was waterboarded 83 times in a month.

McClatchy quotes a former Senior U.S. Intelligence official in the article:

"There was constant pressure on the intelligence agencies and the interrogators to do whatever it took to get that information out of the detainees, especially the few high-value ones we had, and when people kept coming up empty, they were told by Cheney's and Rumsfeld's people to push harder," he continued.
"Cheney's and Rumsfeld's people were told repeatedly, by CIA . . . and by others, that there wasn't any reliable intelligence that pointed to operational ties between bin Laden and Saddam, and that no such ties were likely because the two were fundamentally enemies, not allies."

In addition, the Senate Armed Services Committee has released a 232 page report that discusses details on the treatment of detainees and the approval of said techniques by the Bush Administration. From the Washington Post:

The military's Joint Personnel Recovery Agency (JPRA) has been reported to have reverse-engineered these methods to break al-Qaeda prisoners. The techniques, including waterboarding, or simulated drowning, were drawn from the methods used by Chinese Communists to coerce confessions from U.S. soldiers during the Korean War -- a lineage that one instructor appeared to readily acknowledge.

So, it becomes increasingly clear that the Bush Administration used torture techniques on individuals that were reversed engineered from the military's SERE program in order to elicit (false) confessions from detainees in U.S. custody and then retroactively attempted to provide legal cover for themselves via the torture memos. Astonishing that we would even consider NOT moving forward with a special prosecutor. Chris Floyd:

What's more, it is now undeniable that they began this program long before they had captured even one "high-profile al Qaeda detainee," and that they were using these heinous techniques not in a desperate bid to save the nation from further attacks – which has long been their preening, self-serving claim – but instead to produce spurious data about the non-existent link between Iraq and al Qaeda. In other words, George Bush, Dick Cheney and Donald Rumsfeld ordered their minions to beat and torment captives in order to get them to say something a – anything – that could then be used to "justify" a war of aggression that these grand statesmen had been planning long before the September 11 attacks.

You cannot disentangle the torture program from the war of aggression in Iraq – nor from the illegal wiretapping program, the corrupt war profiteering, and all the other degradations of liberty and law that have been so accelerated in the past eight years. They are all of a piece, part and parcel of a plan to expand and entrench America's "unipolar domination" of world affairs with a thoroughly militarized state led by an unaccountable, authoritarian "Unitary Executive."

Torture Memos and Accountability

As I posted last week, President Obama made the decision to release four of the torture memos that were written during the Bush Administration. Obama's decision to do so came as he was being strongly pressured from CIA officials, including former CIA Director Michael Hayden, to keep these documents secret. In releasing these memos it has given the public a glimpse into the rules that the Bush Administration felt legally comfortable in operating under during the so-called "War on Terror".

I will make my assessment fairly brief as much has already been stated and since this conversation is far from over. I spent the weekend reading these four memos and have found them nauseating and disturbing. It is simply astounding to read the lengths that Jay Bybee and Stephen Bradbury go to in these memos to justify policies like sleep deprivation, walling (slamming a detainee against a wall), stress positions, dietary manipulation, and waterboarding. I had to remind myself that I was reading memos that shaped American policy and not the policy of some brutal dictator in a far-away land.

These memos outline the reality that played out during the Bush Administration and what was deemed acceptable during the last eight years. Kevin Drum of Mother Jones:

Reading the OLC torture memos is enough to make you ill. The techniques in question are plainly and instinctively abhorrent by any common sense definition, and the authors of the memos obviously know it. But somehow they have to conclude otherwise, so they write page after mind-numbing page of sterile legal language designed to justify authorizing it anyway. It's not torture if the victim survives it intact. It's not against the law if it takes place outside the United States. Waterboarding is OK as long as it isn't performed more than twice in a 24-hour period. Sleep deprivation of shackled prisoners for seven days at a time is permissible as long as the victim's diaper is changed frequently. And on and on and on.

There is no denying that the United States is a nation that wanted to torture, did so on a regular basis, and tried to legally justify treating detainees in ways that would be condemned if the proverbial "shoe were on the other foot". This is not up for dispute. What is also no longer up for dispute is that the Bush Administration felt that these memos gave them enough legal cover to consistently claim that the United States "does not torture" all while feeling justified in the waterboarding of Khalid Sheik Mohammad 183 times in one month.

Despite all of these ugly revelations about our country over the last eight years, we still have commentators, talk show hosts, and a former Vice President who still stand by these tactics and are angry at the Obama Administration for discontinuing their use. These torture apologists not only try to make locking someone in a box with an insect into a political issue, but will continue to make excuse upon excuse for why this type of behavior is acceptable and necessary. For those who implemented these policies which have resulted in the torture and deaths of countless detainees, it is absolutely necessary to establish a special prosecutor to pursue charges of war crimes.

I have expressed concern in Obama's continued language of the need to "move forward" and his viewpoint that "retribution" is not the answer, but with so many conflicting statements coming out of the Administration over the last few days regarding prosecutions, a debate is more than likely happening behind closed doors. If Obama's language is intended to distance himself from the legal process, then an argument can be made that this action is justifiable. After all, bringing charges against former Administration officials should rest with the Attorney General. What is not justifiable is inaction. In order to uphold the laws of the land and to show that we are a nation of laws, there is no other option but to hold fierce and probing investigations into the Bush Administration's use and justification of torture. If these high crimes go unpunished, it undermines the very principles upon which this country stands. It is not simply enough to move on. Scott Horton:

Can anyone be surprised to learn that the new guardians of these vast and unchecked powers, while piously promising to reform and stop breaking the law, also feel that there is no really compelling reason to enforce the law–in the process breaking the oaths they just took a few weeks ago to uphold that very law? Is it not indeed amazing that these claims can be made on the public stage without being greeted with the peals of derision they deserve? Now comes the test of our democracy–will we close the door and walk away, or demand to know what’s been done in our name and hold those who guided any abuses to account for their misconduct? President Obama tells us there’s nothing to see here, just move along. But this will be a test of whether we have a citizenry worthy of that name.

I will continue to bring more opinions on this issue as we move forward.

More on Torture

Over the weekend I read the majority of the four torture memos that were released last week and will finish them at some point today. There have been a lot of good analysis and important reaction coming out and I while I will write my own this week, it is important to keep the conversation going.

Over the weekend we learned that Khalid Sheikh Mohammed (KSM) was waterboarded 183 times in March, 2003 by the CIA and that Abu Zubaydah was waterboarded 83 times in August, 2002. At the blogger emptywheel pointed out:

So: two two-hour sessions a day, with six applications of the waterboard each = 12 applications in a day. Though to get up to the permitted 12 minutes of waterboarding in a day (with each use of the waterboard limited to 40 seconds), you'd need 18 applications in a day. Assuming you use the larger 18 applications in one 24-hour period, and do 18 applications on five days within a month, you've waterboarded 90 times--still just half of what they did to KSM.

The CIA wants you to believe waterboarding is effective. Yet somehow, it took them 183 applications of the waterboard in a one month period to get what they claimed was cooperation out of KSM.

That doesn't sound very effective to me.

The figures that emptywheel used above, came directly out of the torture memos dictating how waterboarding was to be implemented. As Andrew Sullivan points out:

Moreover, it is worth pointing out that even if you accept the preposterous notion that waterboarding isn't torture - something no legal authority in human history ever has before Dick Cheney came along - and even if you accept the amazingly detailed limits that Bradbury placed on the frequency and severity of waterboarding to make it "legal," even then, we now know that the CIA violated those standards.

[...]

So even by the Bush-Cheney standards of legality, the waterboarders far exceeded what was allowed. They broke the law even by Bush's standards. And why, pray, is breaking the law in such a grave matter as a war crime no longer subject to prosecution or even investigation in the United States?

More to come on all of this. Meanwhile, the Daily Show takes on torture apologists:

The Daily Show With Jon Stewart	M - Th 11p / 10c
We Don't Torture
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Reaction to Obama Releasing the Torture Memos

Reaction to yesterday's release of the toture memos is pouring in. Here is a sampling of the commentary:

Spencer Ackerman:

Something is very clear from these memos. The Bush administration often liked to say that they needed these memos to remain confidential in order to preserve the principle that the administration should receive the most candid legal advice available. What that secrecy fomented was a culture in which the precise conditions under which a man who had been shot in the leg could be placed inside a cramped box -- how many hours? -- and subjected to insects crawling on him without it being blatantly illegal. It wasn't just Abu Zubaydah's senses and personality that these memos warped.

Andrew Sullivan:

Human beings were contorted into classic stress positions used by the Gestapo; they had towels tied around their necks in order to smash their bodies against walls; they were denied of all sleep for up to eleven days and nights at a time; they were stuck in tiny suffocating boxes; they were waterboarded just as the victims of the Khmer Rouge were waterboarded. And through all this, Bush and Cheney had lawyers prepared to write elaborate memos saying that all of this was legal, constitutional, moral and not severe pain and suffering.

Bybee is not representing justice in this memo. He is representing the president. And the president is seeking to commit war crimes. And he succeeded. This much we now know beyond any reasonable doubt. It is a very dark day for this country, but less dark than every day since Cheney decided to turn the US into a torturing country until now.

digby:

The phrase "banality of evil" is very overused, I realized. But this is a case where it applies. Bybee writes as just another corporate-style lawyer finding a legal rationale for his client to do what he wants to do. Happens every day, no big deal. Except that he's writing memos justifying using techniques that have been known to be torture since at least the Spanish Inquisition.

Oh sure, he says it needs to be "medically supervised" and performed by only those who are "qualified" which makes it all bureaucratically neat and tidy. And he consistently asserts the twisted logic that because American military people had come through the SERE training without suffering any lasting harm, that prisoners would also suffer no lasting harm, which not only makes no sense, but gives him a quasi-legal and moral justification for perpetrating despicable acts. Everything is very sterile and very controlled. And that's what makes this opinion so chilling.

Chris Floyd:

And cannot every criminal on the face of the earth now claim the Obama defense: "Surely, your honor, nothing will be gained by spending our time and energy laying blame for the past. So let's forget the fact that I (raped/murdered/robbed/tortured), and move forward, shall we?" For the Obama defense is nothing other than the Nuremberg defense: "I was only following orders. I was given assurance by the highest authority that my actions were legal in all respects." Is this what we have come to? Is that what now constitutes bold, progressive action? Is this, really, part of our "core values," an essential embedded component of our "national greatness?"

The more one considers Obama's remarks, the more offensive they become, and the more flagrantly they insult the intelligence. For the very memos that he has released give the lie to his own statement. Obama says it would be wrong to prosecute CIA underlings for carrying out actions that they were told were legal. Leaving aside the fact that apparently none of these great, courageous, self-sacrificing, vigilant defenders of our "core values" (as Obama lauds them) considered these tortures to be inherently immoral, but simply wanted to cover their ass legally before they wall-slammed the hell out of somebody or poured water down their throats until they began to choke and drown -- the fact is, they were told quite specifically by Bush's White House shysters that there was no guarantee that their actions would be considered legal by a court.

Glenn Greenwald:

I agree entirely that it is the DOJ lawyers who purported to legalize torture and the high-level Bush officials ordering it who are the prime culprits and criminals, as compared to, say, CIA agents who were proverbially just following orders and were told by the DOJ that what they were doing was legal. But leave aside the question of whether prosecutions would produce good or bad outcomes. After all, the notion that the law can and should be ignored whenever we think doing so would produce good results or would constitute good policy was the engine that drove Bush lawlessness. If, as Barack Obama proclaimed yesterday, "the United States is a nation of laws" and his "Administration will always act in accordance with those laws," isn't it the obligation of those opposing prosecution to justify that position in light of these legal mandates and long-standing principles of Western justice? How can they be reconciled?

Obama To Release Torture Memos

It is now being reported that President Obama has made the decision to release the Bush Administration's infamous "torture memos" with minimal redaction. This is very encouraging news considering the considerable pressure that Obama faced from former CIA Director Michael Hayden and other CIA officials.

While these CIA officials (including Obama's terrorism advisor, John Brennan) argued that releasing these memos would hurt national security and burden CIA officers with inquiries, Glenn Greenwald is right to point out:

I want to underscore one vital point about this controversy that is continuously overlooked and will be undoubtedly distorted today in the event of non-disclosure: these documents are not intelligence documents. They are legal documents and, more specifically, they constitute what can only be described as secret law under which the U.S. was governed during the Bush era. Thus, the question posed by the release of these OLC memos is not whether Obama will release to the public classified intelligence programs. The question is whether he will release to the public the legal doctrines under which the U.S. Government conducted itself regarding interrogation techniques he claims are no longer being used.

It is also being reported that Obama agreed to release these memos while promising that no CIA officials would be prosecuted for the torture of detainees in U.S. custody. In fact, it is believed that the CIA agent's names are going to be the only portion of these memos that will be redacted. We will have to wait and see if this is the case, but it indicates that President Obama has attempted to issue a kind of compromise in the release of these memos, but did not extend this same promise to Bush Administration officials.

In the same breath Obama, once again, used "look to the future, not the past" type of language when making this announcement:

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

This should mark the beginning in taking the necessary action to make sure that this type of behavior never happens again. Simply releasing these memos will not allow us to "move forward with confidence". We should make this the first step in recommitting this country to a land where political leaders are not above the law.

With that being said, Obama certainly deserves credit for making a decision that was a true test of his commitment to move away from some of the secrecy of the last eight years. Here is a clip of Former CIA Director Hayden on MSNBC to underscore the pressure that Obama was up against in making such a decision:



UPDATE: This story is breaking and the memos are slowly becoming available. Here is the August 1, 2002 memo.

May 10, 2005 Number One

May 10, 2005 Number Two

May 30, 2005

I have just glanced at these so far, but they are quite disturbing and worth your time. I will be reviewing them over the next few days and will have more analysis.

Is Bagram the New Guantanamo?

Rachel Maddow and Michael Isikoff discuss the Obama Administration's push to deny habeus corpus rights to detainees held at Bagram airfield in Afghanistan (sound familiar?) and Thursday's important decision on whether to release the Bush Administration's "torture memos":

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Obama Administration Again Delays Release of the "Torture Memos"

The ACLU has been trying (for over a year) to get various memos and documents released under the Freedom of Information Act (FOIA). These memos are the infamous "torture memos" which detail how the Bush Administration attempted to give legal authority to their decisions surrounding the treatment and interrogation of detainees in U.S. custody.

For obvious reasons, the Bush Administration was very resistant to the requests from the ACLU and now that the Obama Administration has taken power, there have been murmurs that they will end up releasing these controversial memos. Despite these murmurs and court-ordered deadlines by which the Administration would have been forced to either release the memos or give reasons to why they would continue to keep them sealed, the Obama Administration has asked for a total of four extensions to these deadlines. The most recent deadline of April 2 has now been extended to April 16.

Scott Horton has recently reported that there is conflict within the Obama Administration regarding the release of these documents and considerable push back from Republicans and John Brennan. Horton writes:

Brennan is a protege of former CIA director George Tenet and although he expressed some reservations about waterboarding, he was a defender of other
Tenet-era torture programs. Now ensconced as a senior counterterrorism advisor, he has become the principle advocate of the “don’t look back” mantra with respect to the misdeeds of the Bush years. And in this, Brennan’s principal concern is the protection of Brennan and Tenet–but in the process he has emerged as Dick Cheney’s clear champion.

The disclosure of the OLC memoranda presents a key policy fork in the road for Obama. If he is faithful to his commitment to transparency and to end torture, the government will have to come clean with these memos. If Obama keeps them under wraps, the public will have good reason to question his undertaking to end torture–and good reason to question whether a Cheney “shadow administration” actually has the power to influence policy.

Not only is Brennan apparently leading this opposition, but Horton also reported today that Republicans are threatening to vote against some of Obama's nominations if he doesn't keep these memos sealed:

Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era.

Alarming, but per usual, Glenn Greenwald hits the nail on the head in his analysis of this situation today:

If the Obama administration releases these memos in largely unredacted form, they will deserve credit for doing so. These memos, which an anonymous Obama official told Newsweek were quite "ugly," are virtually certain to fuel calls for investigations and prosecutions and erase all remaining doubt in the eyes of the world how directly and knowingly involved in the torture regime were our highest government officials. Disclosure will require a fair amount of political courage, and if they do that, credit ought to be given.

Conversely, a refusal to disclose these memos, or disclosing them with so many redactions as to render them meaningless, will be absolutely inexcusable. It doesn't matter how loudly John Brennan screams or how many nominations Republican Senators threaten to filibuster. Put simply, there is no legal authority for these memos to remain secret -- ongoing concealment is itself an act of profound lawlessness -- and, beyond that, keeping them secret will constitute the most extreme complicity yet on the part of the Obama administration in the last administration's war crimes. It was Obama who chose to place someone like Brennan in a position of high authority in his administration. That Brennan is now working with Bush-following Republicans to hide evidence of war crimes is, quite obviously, no excuse for continuing to hide it.

This is indeed a big test for the Obama Administration and if they are to assert their commitment to the principle that "no one is above the law", they will release these memos which will be essential to continue to build a case against the law-breakers of the last eight years.