but didn’t General Hayden just say we hadn’t waterboarded anyone in over 5 years?
Yay us? Now let’s tell China about human rights!
Anyhow, more on Yoo from the WP:
The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes.
The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.”
Although the existence of the memo has long been known, its contents had not been previously disclosed.
Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department’s use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq.
Sent to the Pentagon’s general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.
“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” Yoo wrote. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”
Interrogators who harmed a prisoner would be protected by a “national and international version of the right to self-defense,” Yoo wrote. He also articulated a definition of illegal conduct in interrogations – that it must “shock the conscience” – that the Bush administration advocated for years.
“Whether conduct is conscience-shocking turns in part on whether it is without any justification,” Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.
The declassified memo was sent by the Defense and Justice departments late yesterday to Democrats on Capitol Hill, including Sens. Carl M. Levin (Mich.) and Patrick J. Leahy (Vt.), who had seen the document in classified form and pushed for its release.
The document is similar, although much broader, than a notorious memo primarily written by Yoo in August 2002 that narrowly defined what constitutes illegal torture. That document was also later withdrawn.
In his 2007 book, “The Terror Presidency,” Jack Goldsmith, who took over the Office of Legal Counsel after Yoo departed, writes that the two memos “stood out” for “the unusual lack of care and sobriety in their legal analysis.”
The documents are among the Justice Department legal memoranda that undergirded some of the highly coercive interrogation techniques employed by the Bush administration, including extreme temperatures, head-slapping and a type of simulated drowning called waterboarding.
http://www.washingtonpost.com/wp-dyn/content/article/2008/04/01/AR2008040102213.html?nav=hcmodule
You know I thought with this administration’s actions, Shrub might be in the running for most presidential pardons, but FDR had 3687 over 12 years. 8 year record is 2480 by Wilson. Since he’s only done about 70 I don’t see how he can get his record, but he’s surprise me before.
Can a President preemptively pardon someone? I can’t see this Justice Department actually indicting anyone in the administration unless severe armtwisting is applied. The next Justice Department, however…
Froomkin rips into the boys
“Only one of the five War Council lawyers remains in office: David Addington, the brilliant but abrasive longtime legal adviser and now chief of staff to Cheney. His primary motive, according to several former administration and defense officials, was to push for an expansion of presidential power that Congress or the courts couldn’t check.”
The other members were Alberto Gonzales, first the White House counsel and then the attorney general; William J. Haynes II, the former Pentagon general counsel; former Justice Department lawyer John Yoo; and Timothy E. Flanigan, a former deputy to Gonzales.
http://www.washingtonpost.com/wp-dyn/content/blog/2008/06/18/BL2008061801546.html?hpid=opinionsbox1
Are we about to get an answer to the OP’s question? Nah, but Addingtion is going to testify.
David S. Addington, Vice President Cheney’s formidable and reclusive chief of staff, is scheduled to appear before the House judiciary committee Thursday for a hearing on how the Bush administration developed its interrogation policies.
…If the entire committee shows up, each member will have a total of about nine minutes of question time, and Addington is not the day’s only witness, as torture-memo author John Yoo will be present as well.
…There’s not much point in asking Yoo anything—why waste time with Charlie McCarthy when Edgar Bergen is sitting right next to him? Yoo can be brought back later anyway…
The judiciary committee’s sole aim on Thursday should be to keep Addington at the table until he provides answers to some essential questions. Here’s a draft script to that end:
Q. When was the decision made that traditional interrogation methods weren’t sufficient for the challenge of information-gathering? Who made that decision?
Q. What precipitated the decision?
Q. Was there any opposition?
Q. What happened to the opposition?
Q. What made you so sure you were right?
Q. Are we correct in assuming that the operating principle behind these decisions was that Sept. 11 changed everything? How would you say it changed everything?
Q. Do you consider this a permanent change?
Q. If not, what in your mind needs to happen before we return to normalcy?
Q. How much guidance did you personally give Yoo? How much of the memos attributed to Yoo, Jay Bybee, and Gonzales did you write yourself?
Q. Were you satisfied with the quality of Yoo’s legal arguments? Are you now, in retrospect?
Q. Do you recognize any limits to the president’s power over detainees captured in the war on terror? If so, what are they?
Q. How did the vice president’s office in general, and you in particular, become such a pivotal player in this drama?
Q. Did you ever feel you might be a little out front of the president?
Q. How closely did you keep him informed?
Q. History suggests traditional interrogation tactics are highly effective. Why didn’t you have faith in those tactics?
Q. Did you consider that your tactics might elicit false confessions?
Q. Why did you not think there was any need for a congressional role in these decisions? Did you ever consult with members of Congress about these tactics? Did you inform them of these tactics?
Q. Were you angry at these terror suspects? Did your anger have any role in your thinking?
Q. Were any tactics specifically considered out of bounds? Why was water-boarding OK, but, say, electric shocks to the testicles not? (Or were they? Can you rule out any tactics at all?)
Q. Do you consider the tactics approved for use by the CIA and in Guantanamo to be humane? If not, what makes it OK for us to use them on humans?
Q. Isn’t that in clear violation of Geneva’s Common Article III?
Q. What in your mind makes someone eligible for what you called “enhanced interrogation”? What level of proof do you require, and of what degree of crime or knowledge?
Q. Do you see any conflict between our use of these tactics and our country’s historic dedication to human dignity?
Q. Do you believe any of these “enhanced” tactics could be legitimately used on American citizens by foreign powers, under any circumstances?
Q. Can you provide any examples of information gathered through what you call “enhanced interrogation” that saved American lives and that you are confident would not have been elicited by normal means?
Q. As you look back on your involvement in the establishment of U.S. interrogation policy, do you feel proud? Do you feel you accomplished what you set out to accomplish?
And here are just a few of the many specific questions Addington should be confronted with as well:
Q. What precipitated your visit to Guantanamo Bay in September 2002, accompanied by Alberto Gonzales, William Haynes, and others? Did you discuss specific interrogation techniques? A participant in some of your meetings, Lt. Col. Diane Beaver, the staff judge advocate at Guantanamo, told author Philippe Sands that the message she took from you as visitors was to do “whatever needed to be done.” Was that the message you intended to deliver?
Q. Former Office of Legal Counsel head Jack Goldsmith writes in his book that when he presented his view that the Fourth Geneva Convention, which describes protections that cover civilians in war zones like Iraq, also covered insurgents and terrorists, you became livid. “The president has already decided that terrorists do not receive Geneva Convention protections,” you replied angrily, according to Goldsmith. “You cannot question his decision.” Does that accurately reflect your views at the time—and your temperament?
Q. How many meetings did you participate in with CIA officials during which there was discussion about videotapes of CIA interrogation of terror suspects? Did you indicate in any way to the CIA that destroying these tapes would be acceptable or even preferable? Did you do so based on instructions from the vice president? Do you think destroying them was the right thing to do?
Q. Were you involved in any way with the signing statement President Bush appended to the 2006 emergency supplemental? The president said he would construe provisions of that bill outlawing the torture of detainees “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President … of protecting the American people from further terrorist attacks.” What did the president mean by that? Did he mean he didn’t intend to heed the anti-torture provisions?
Finally, to put Addington’s answers in some context:
Q. What is your response to those like former Navy general counsel Alberto Mora, who says that these tactics, by inspiring opposition and alienating our allies, were hugely costly to our country on a national-security basis?
Q. What is your response to those like retired two-star Gen. Anthony Taguba, who recently wrote: “After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
Q. What is your response to those like Colin Powell’s former chief of staff, Larry Wilkerson, who have long argued “that the Office of the Vice President bears responsibility for creating an environment conducive to the acts of torture and murder committed by U.S. forces in the war on terror”?
Addington, appearing cocky and not in the least intimidated by the congressional inquisitors, denied that he played a key role in drafting an Aug. 2002 memo on interrogation techniques that could be used on detainees, including suspected al Qaeda terrorists.
http://www.politico.com/blogs/thecrypt/0608/Addington_clashes_with_Nadler.html
Oh, he’s gonna get messed up. Maybe not yesterday but one day. One day soon. Addington may not realize this but because he’s so anonymous he’s the best scapegoat. He’s also the best scape goat because, even as much as Cheney if not moreso, he’s at the epicenter of all the fuckery that’s gone on this administration.
This guy’s priceless. Almost like he wants folks to hate him so much they forget he actually had a boss running the show - he’s begging to be Libbied.
Throughout the Bush presidency, he toiled in secrecy deep within the White House, a mysterious and feared presence who never stepped into the sunlight of public disclosure.
Until yesterday.
There he sat, hunched and scowling, at the witness table in front of the House Judiciary Committee: the bearded, burly form of the chief of staff and alter ego to the vice president – Cheney’s Cheney, if you will – and the man most responsible for building President Bush’s notion of an imperial presidency.
David Addington was there under subpoena. And he wasn’t happy about it.
Could the president ever be justified in breaking the law? “I’m not going to answer a legal opinion on every imaginable set of facts any human being could think of,” Addington growled. Did he consult Congress when interpreting torture laws? “That’s irrelevant,” he barked. Would it be legal to torture a detainee’s child? “I’m not here to render legal advice to your committee,” he snarled. “You do have attorneys of your own.”
He had the grace of Gollum as he quarreled with his questioners. In response to one of the chairman’s questions, he neither looked up nor spoke before finishing a note he was writing to himself. When Rep. Debbie Wasserman Schultz (D-Fla.) questioned his failure to remember conversations about interrogation techniques, he only looked at her and asked: “Is there a question pending, ma’am?” Finally, at the end of the hearing, Addington was asked whether he would meet privately to discuss classified matters. “You have my number,” he said. “If you issue a subpoena, we’ll go through this again.”
Addington’s insolence appeared to embolden another witness, his former administration colleague John Yoo. Yoo took Rep. Keith Ellison (D-Minn.) on a semantic spin when asked about whether a torture memo was implemented.
“What do you mean by ‘implemented’?” Yoo asked.
“Mr. Yoo,” Ellison pressed, “are you denying knowledge of what the word ‘implement’ means?”
http://www.washingtonpost.com/wp-dyn/content/article/2008/06/26/AR2008062603456.html
I love a patient smartass.
Cohen: "Mr. Addington, what branch of government is the vice president in? . . .
Addington: "Sir, perhaps the best that can be said is that the vice president belongs neither to the executive nor to the legislative branch, but is attached by the Constitution to the latter. Closed quote. That’s from two legal opinions issued by the office of legal counsel of the Department of Justice dated March 9, 1961 and April, I believe it’s 18, 1961 by, I believe, Mr. Katzenbach, if I remember –
Cohen: “So he’s a member of the legislative branch.”
Addington: "-- to Vice President Johnson, and I offer those as Exhibits 13 and 14 – . . . "
Cohen: “So he’s a member of the legislative branch.”
Addington: “No. I said attached by the Constitution to the latter. He is not a member of the legislative branch, because the Constitution says that the Congress consists of a Senate and a House of Representatives. The Constitution further says that the Senate consists of Senators and the House of Representatives consists of Representatives, and he is neither a Senator nor a Representative.”
Cohen: “But he’s attached to the legislative branch.”
Addington: “That’s the quote I read you.”
Cohen: “So he’s kind of a barnacle.”
Addington: “He is attached by the Constitution to the latter. I don’t consider the Constitution a barnacle, Mr. Cohen.”
Maybe not, but the rest of his actions sure make it appear that he considers it a piece of toilet paper.
Jane Mayer, the New Yorker reporter who started me off on this thread, has a new book out now called The Dark Side. Our favorite asshole is, of course, central to this storyline:
The very first Sunday after the 9/11 attacks, Vice President Dick Cheney descended like a cloud on “Meet the Press” to outline the Bush administration’s response. “We’ll have to work sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies – if we are going to be successful. That’s the world these folks operate in. And, uh, so it’s going to be vital for us to use any means at our disposal basically, to achieve our objectives.”
Around the nation, one presumes, numbed heads were nodding in approval. Whatever it takes to get those bastards. The true nature of our Faustian bargain would not become clear until later, and maybe it needed a journalist as steely and tenacious as Jane Mayer to give us the full picture. “The Dark Side” is about how the war on terror became “a war on American ideals,” and Mayer gives this story all the weight and sorrow it deserves. Many books get tagged with the word “essential”; hers actually is.
Above all, it underscores one of the least remarked aspects of our nation’s counterterrorist policy: the degree to which it has been driven not by spies or generals but by pasty men in ties. “The first thing we do,” goes that crowd-pleasing line from Shakespeare’s “Henry VI,” “let’s kill all the lawyers.” Readers of “The Dark Side” might be moved to add: “Before they kill you.” Almost from the moment America was attacked, Mayer writes, Cheney “saw to it that some of the sharpest and best-trained lawyers in the country, working in secret in the White House and the United States Department of Justice, came up with legal justifications for a vast expansion of the government’s power in waging war on terror. As part of that process, for the first time in history, the United States sanctioned government officials to physically and psychologically torment U.S.-held captives, making torture the official law of the land in all but name.” This “extralegal counterterrorism program,” contends Mayer, “presented the most dramatic, sustained, and radical challenge to the rule of law in American history.”
We already know, of course, that wars give presidents plenty of room for overreaching. Lincoln suspended habeas corpus during the Civil War; FDR, during World War II, interned hundreds of thousands of Japanese-Americans. What separates the Bush White House from its forebears, suggests Mayer, was that its “doctrine of presidential prerogative” admitted no challenge and operated, as much as it could, out of sight.
But the bureaucratic colossus who bestrides this narrow world is David Addington, Cheney’s general counsel and a figure of Robespierrian purity. “Tall and bespectacled,” with “the look of an irascible sea captain,” Addington jealously guards the paper flow to Cheney and, ultimately, to Bush – even as he shouts down all opposition. No one stands to his right, and no one challenges him without risk of career suicide. “We’re going to push and push and push,” he tells one colleague, “until some larger force makes us stop.”
“The Dark Side” shows us what happens when men lose themselves and also, in a scary way, find themselves – becoming the pencil-necked alphas they have always dreamed of being (“When we’re through with [al-Qaida],” promised Cofer Black, the CIA’s senior counterterrorism official, “they will have flies walking across their eyeballs”) and realizing long-cherished dreams. Cheney and Addington, for their part, got what they had been waiting for half their lives – the chance to shift power back to the executive branch. By arguing that the president needed free rein to fight al-Qaida, they were able to expand domestic wiretapping, neutralize Congress, and undo many of the restraints that Watergate had put in place three decades earlier. Their ultimate goal, as Rep. Jane Harman put it, was “restoring the Nixon presidency.”
This was, in short, a quiet coup, and we can be grateful at least that it was opposed not just by public-interest and human-rights groups but by individuals within the Bush administration. FBI special agent Jim Clemente, Navy general counsel Alberto Mora, Deputy Attorney General James Comey, Justice Department attorneys Jack Goldsmith and Dan Levin all had shining moments of resistance (though Mayer scrubs their pedestals a bit too hard). They weren’t, however, very effectual. Most either fled or were banished soon after raising their voices. Even John McCain, who quite commendably authored a bill prohibiting U.S. personnel from torturing prisoners, saw his work undone by presidential signing statements (crafted, naturally, by Addington).
Edit: Also, Live Chat today at 3 PM ET at the Washington Post site.
Amazing!
“The president doesn’t want this! [1] You are not going to see the opinions. You are out . . . of . . . your . . . lane!”
Five government lawyers had gathered around a small conference table in the Justice Department command center. Four were expected. David S. Addington, counsel to Vice President Cheney, got wind of the meeting and invited himself.
If Addington smelled revolt, he was not far wrong. Unwelcome questions about warrantless domestic surveillance had begun to find their voice.
Though the president had the formal say over who was “read in” to the domestic surveillance program, Addington controlled the list in practice, according to three officials with personal knowledge. White House counsel Alberto R. Gonzales was aware of the program, but was not a careful student of the complex legal questions it raised. In its first 18 months, the only other lawyer who reviewed the program was John Yoo.
http://www.washingtonpost.com/wp-dyn/content/article/2008/09/13/AR2008091302284.html?hpid=topnews
Part II…even more amazing
Justice had filled its top ranks with political loyalists. They hoped to see Bush reelected. Had anyone explained to the president what was at stake?
Whelan pulled out his BlackBerry. He fired off a message to White House staff secretary Brett Kavanaugh, a friend whose position gave him direct access to Bush.
“I knew zilch about what the matter was, but I did know that lots of senior DOJ folks were on the verge of resigning,” Whelan said in an e-mail, declining to discuss the subject further. “I thought it important to make sure that the president was aware of that situation so that he could factor it in as he saw fit.”
Kavanaugh had no more idea than Whelan, but he passed word to Card.
The timing was opportune. Just about then, around 11 p.m., Comey responded to an angry summons from the president’s chief of staff. Whatever Card was planning to say, he had calmed down suddenly.
What was all this he heard, Card asked, about quitting?
“I don’t think people should try to get their way by threatening resignations,” Comey replied. “If they find themselves in a position where they’re not comfortable continuing, then they should resign.”
“He obviously got the gist of what I was saying,” Comey recalled.
It was close to midnight when Comey got home, long past the president’s bedtime. Bush had yet to learn that his government was coming apart.
Yeah, that was amazing.
No wonder they put Ashcroft in at Justice; you can’t risk having someone in charge there who will resign if you want something illegal done.
I just stumbled across those stories myself. I think they’re excerpts from a new book based on the series the WP did called “Angler” on Cheney and, by extention, Addington. Some of the original material is probably linked earlier in this thread.
But these articles are much clearer and more powerful. I think more people are talking. Between “Angler” and Woodward’s new book it’s pretty clear that the cartoon version of Cheney running the White House was actually…pretty much the fact, jack. Cheney and AEI are joined at the hip, cheek and jowl and AEI was pulling the Iraq strings.
Bush pretty clearly didn’t have much of a clue what the fuck was going on at any time.
This part, among many, blew my mind.
Addington opened the code-word-classified file on his computer. He had a presidential directive to rewrite.
It has been widely reported that Bush executed the March 11 order with a blank space over the attorney general’s signature line. That is not correct [15]. For reasons both symbolic and practical, the vice president’s lawyer could not tolerate an empty spot where a mutinous subordinate should have signed. Addington typed a substitute signature line: “Alberto R. Gonzales.”
What Addington wrote for Bush that day was more transcendent than that. He drew up new language in which the president relied on his own authority to certify the program as lawful. Bush expressly overrode the Justice Department and any act of Congress or judicial decision that purported to constrain his power as commander in chief. Only Richard M. Nixon, in an interview after leaving the White House in disgrace, claimed authority so nearly unlimited [16].
The specter of future prosecutions hung over the program, now that Justice had ruled it illegal.
“Pardon was in the air,” said one of the lawyers involved.
It was possible to construct a case, he said, in which those who planned and carried out the program were engaged in a criminal conspiracy. That would be tendentious, this lawyer believed, but with a change of government it could not be ruled out.
“I’m sure when we leave office we’re all going to be hauled up before congressional committees and grand juries,” Addington told one colleague in disgust.
Perfect timing, I’m guessing some paper shreading firm in DC is outta a big contract this holiday season.
A federal judge Saturday ordered Dick Cheney to preserve a wide range of the records from his time as vice president.
The decision by U.S. District Judge Colleen Kollar-Kotelly is a setback for the Bush administration in its effort to promote a narrow definition of materials that must be safeguarded under the Presidential Records Act…
The lawsuit stems from Cheney’s position that his office is not part of the executive branch of government.
This summer, Cheney chief of staff David Addington told Congress the vice president belongs to neither the executive nor legislative branch of government, but rather is attached by the Constitution to Congress. The vice president presides over the Senate.
The lawsuit alleges that the Bush administration’s actions over the past 7 1/2 years raise questions over whether the White House will turn over records created by Cheney and his staff to the National Archives in January.
Heh, like those records won’t end up in the same fire that burned Bush’s National Guard records.
“Your honor, I have no idea what happened. One second I was burning incense, and the next thing I knew this one single wooden filing cabinet that happened to contain all those records went up.”
I’m sorry but what would Addington know about record keeping…whoops…never mind.
The advocacy group Citizens for Responsibility and Ethics in Washington announces: “Last week, the judge in CREW’s lawsuit against Vice President Dick Cheney approved our request to take the depositions of David Addington, Vice President Cheney’s chief of staff.” The deposition was to be about record-preserving practices in the vice president’s office.
"On the eve of that deposition, Vice President Cheney and the other defendants filed an emergency petition for a writ of mandamus with the U.S. Court of Appeals for the D.C. Circuit.
“Mandamus is an extraordinary remedy and defendants seek it here to have the D.C. Circuit intrude directly into the district court litigation by demanding that the district court judge vacate her discovery orders. The petition is based on a claim that the discovery authorized by the district court raises serious separation of powers concerns merely because the deponent is David Addington.”