Closing in on Bush's Torture Cabal: Who Will Take the Fall?

By Jeffrey S. Kaye, AlterNet. Posted April 14, 2008.

An interview in Esquire magazine of John Yoo, former Bush attorney for the White House's Office of Legal Counsel, and author of two controversial torture authorization memos, may give a hint of what kind of defense Yoo will be present if he decides (under threat of subpoena) to appear before John Conyer's House Judiciary Committee on May 9. Of course, he may decide (or be forced) to fight any appearance. But when career prosecutors start thinking War Crimes Act, and Yoo wakes up and discovers he's expendable, then he might feel differently.

This comes out in Yoo's interview (with the portion below reproduced from TPMMuckraker, bold emphasis added). Note that the time Yoo is talking about is after torture techniques were approved and apparently directed by Cheney, Rice, Rumsfeld, Ashcroft and others in Bush's National Security Council's Principals Committee. The approval came supposedly at the behest of the CIA, who were frustrated with the interrogation of Abu Zubayda, captured in Pakistan in March 2002. (But note, there was an even earlier approval by President Bush, in early February 2002, of which more below.)

Yoo: The interrogation question came up, I think, in March [2002], when Abu Zubaydah was captured. That's what provoked that question …

Esquire: You weren't under extraordinary time pressure?

Yoo: We were under time pressure.

Esquire: Days, weeks?

Yoo: The final version we didn't get done till August [2002]. But we would show drafts before.

Esquire: They were taking action?

Yoo: They needed to have a sense before it was finalized what the basic outlines are.

Esquire: How long did it take to give an answer, go ahead do it?

Yoo: I don't remember.

Esquire: Weeks, months?

Yoo: Probably weeks.

Esquire: So that's a fair amount of time pressure, Zubaydah's in custody.

Yoo: If you had the luxury of time, you'd spend years on this, without a doubt.

Esquire: What concerns came up, back and forth with the White House?

Yoo: There wasn't a lot of back and forth -- people would say this is wrong, you need to delete this. I think that there was no pressure from any other agency from within the department that the opinion was going too far -- or that it wasn't going far enough. It was very much hands off. That doesn't surprise me considering how sensitive the issue was, people wanted the office I think to take the full responsibility.

Deniability and Videotapes

The "office" in question is the Office of Legal Counsel, and Yoo seems to be making the point that, while officially there was "no pressure," in fact, the memo authorizing torture was vetted by others. Furthermore, if anything went wrong, the OLC, and likely Yoo himself, would "take the full responsibility."

This makes weird sense if you understand that in the world of covert operations, deniability is essential. Sometimes it seems preserving deniability is another quaint artifact of the past in this brave new world of neo-con America, as suggested by President Bush's admission that he knew of the Principals meetings, and "approved." (How Bush can say this and still preserve deniability is examined below.)

"Well, we started to connect the dots, in order to protect the American people." Bush told ABC News White House correspondent Martha Raddatz. "And, yes, I'm aware our national security team met on this issue. And I approved" …

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed -- down to the number of times CIA agents could use a specific tactic.

The interrogation of Abu Zubaydah, we might remember, was one of the interrogations videotaped by the CIA and subsequently destroyed, as reported by the Washington Post last December. At that time, the issue was whether or not waterboarding Zubaydah -- the preferred CIA technique -- had produced any information of value, or whether the FBI's more traditional forms of interrogation had been more productive. Underneath this controversy was another one regarding the value of Abu Zubaydah's statements in the first place.

The destruction of the videotapes has caused some legal problems for the CIA and for government prosecutors. A recent New York Times article described some of the fallout from the tapes fiasco. For one thing, there were new legal motions from lawyers for Zacharias Moussaoui, whose case rested in part on testimony from Zubaydah, whose interrogation tapes were now "destroyed". But there was more:

In a suit brought by Hani Abdullah, a Yemeni prisoner at Guantánamo Bay, Cuba, a federal judge has raised the possibility that, by destroying the tapes, the C.I.A. violated a court order to preserve all evidence relevant to the prisoner. In at least 12 other lawsuits, lawyers for prisoners at Guantánamo and elsewhere have filed legal challenges citing the C.I.A. tapes' destruction, said David H. Remes, a Washington lawyer representing 16 prisoners…

Plans for the possible prosecution of another prisoner, Ali al-Marri, who has been held since 2003 in a naval brig in Charleston, S.C., could be in jeopardy after the Pentagon recently revealed that it had destroyed some tapes of Mr. Marri's interrogation. Other tapes showing rough treatment of Mr. Marri, which were discovered in a Pentagon review ordered after the C.I.A. revelations and have been preserved, could prove embarrassing if presented at his trial.

Worse, perhaps, than these newly discovered tapes is the statement by CIA director Michael Hayden last December, also noted in the Times story, that the tapes were destroyed because they were deemed "not relevant to any internal, legislative, or judicial inquiries." Now, if these tapes had been in existence subsequent to the latest revelations of the August 2002 Yoo memo, and the appalling NSC direction of the torture of Abu Zubaydah and others, it seems highly likely that all three types of inquiries -- internal, legislative, and judicial -- would suddenly have been very relevant. As is always the case in Washington, advance knowledge is power.

It is not too much to imagine that the sequence of events demonstrates the influence of insider knowledge and subsequent obstruction of justice. The destruction of the videotapes eliminates evidence of war crimes, and allows minimization of political damage as well. Though almost forgotten by the press, there is an "investigation" of possible criminal behavior in the CIA tape case by government prosecutor John H. Durham, which has has found 17 court orders thus far requiring preservation of evidence such as the destroyed tapes.

Just What Is Being Covered Up?

Were these tapes destroyed to cover up war crimes by top government officials, beginning with President Bush, Vice President Cheney, and then National Security Adviser, now Secretary of State Rice? Even more disturbing, did the Principals watch these tapes in order to examine how the techniques worked? Notice the timeline implied by this Associated Press account of events:

At times, CIA officers would demonstrate some of the tactics, or at least detail how they worked, to make sure the small group of "principals" fully understood what the al-Qaida detainees would undergo. The principals eventually authorized physical abuse such as slaps and pushes, sleep deprivation and waterboarding.

The small group then asked the Justice Department to examine whether using the interrogation methods would break domestic or international laws.

Emptywheel at Firedoglake appears close to making similar connections:

…the President's top aides approved of everything that would have been revealed on the torture tapes, had they not been destroyed. Additionally -- with the placement of John Ashcroft in the meetings -- it puts DOJ at the center of discussions approving all the methods used (though of course Alberto Gonzales, and not Ashcroft, was in charge of DOJ during the destruction of the tapes).

Emptywheel goes on to imply that the CIA has leaked the story on the Principals torture meetings, as Durham may closing in on CIA culpability, at the same time that a House investigation opens on the same matter. And, as noted above, there are other videotapes intact floating around out there (including perhaps copies of the destroyed originals?). Agence France-Press reports that "a Pentagon review has turned up several dozen videotapes of detainee interrogations, including one that shows a detainee having his mouth duct-taped to stop him from chanting."

Meanwhile, the U.S. press is eerily quiet on this latest scandal. Bush seems least concerned, and is probably the most protected. Even his admission to ABC News that he "approved" of the Principals meetings doesn't say he was aware, at least at the time, of what was approved. An AP story argues exactly this point:

The officials also took care to insulate President Bush from a series of meetings at which CIA interrogation methods, including waterboarding, which simulates drowning, were discussed and ultimately approved.

Rushing to Hide

But is Bush really safe? Ray McGovern at Consortiumnews.com argues that a smoking gun already exists in the form of Bush's February 7, 2002 action memorandum, which promoted "new thinking in the law of war," and disallowed Common Article 3 of the Geneva Conventions, which bans torture and outrages upon personal treatment, for Al Qaeda and Taliban combatants. The vaunted Principals meetings followed the issuance of Bush's order, as did Yoo's first and second memorandums, including Yoo's contention that despite U.S. criminal law, in war it is allowed:

…"to torture, maim, or disfigure," to "cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person.

Of course, Yoo is backpedaling now. In the Esquire interview, he states (as reported by University of Toledo College of Law professor Benjamin Davis, who reports receiving a death threat for his critical coverage of the Yoo scandal):

"The memo released yesterday does not apply to Iraq. It applied to interrogations of al Qaeda detained at Guantanamo Bay. I don't [necessarily] agree that the methods did migrate to Iraq, because I don't know for a fact that they did. The analysis of the memo released yesterday was not to apply to Iraq, and we made clear in other settings that the Geneva Conventions fully applied to the war in Iraq. There was no intention or desire that the memo released yesterday apply to Iraq."

Yoo may very well be rehearsing his testimony for the Conyers hearings next month. Also "invited" to show up at the hearings are "Attorney General John Ashcroft, former CIA Director George Tenet, former Undersecretary of Defense Douglas Feith, Chief of Staff to the Vice President David Addington, and former Assistant Attorney General Daniel Levin, who headed up the Office of Legal Counsel for a brief time." I can't wait to see if Conyers asks Feith about his contention that those concerned about torture and the Geneva conventions were "assholes."

More importantly, will Conyers or anyone on the committee remind their guests, and the country at large, that in the 2006 Hamdan decision of the Supreme Court, Justice Kennedy wrote:

"By Act of Congress … violations of [Geneva] Common Article 3 are considered 'war crimes,' punishable as federal offenses, when committed by or against United States nationals and military personnel," and "there should be no doubt … that Common Article 3 is part of the law of war as that term is used in" the UCMJ.

Of course, it didn't take long for the Congressional leadership to come up with an immunity provision for any past interrogation offenses and pass it as part of a Military Commissions Bill in late 2006, in part to undo the Hamdan decision. Yoo and the rest of the Bush cabal hope they are safely covered by the MCA immunity. They are certainly not covered against impeachment. Nor would they be safe if Congress were to rescind the immunity provision of the MCA, as argued recently by the National Lawyers Guild.

Given the record of the Democratic Party leadership, specifically House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid, not much is to be expected as an outcome from next month's hearings: a day of frenzied live-blogging and a limp editorial or two, followed by YouTube videos of C-SPAN coverage relegated to the empty reaches of cyberspace, victim of an ever-moving, trivia-obsessed news cycle.

In the case of Pelosi, however, there may be more than political obtuseness at work. It was only last December -- an eternity in the world of media attention span -- that Pelosi was implicated in briefings on torture techniques by the administration in fall 2002. (Also present was the then ranking Democrat on the House Intelligence committee, Jane Harman.) Pelosi subsequently issued a limp statement:

The Administration advised that legal counsel for the both the CIA and the Department of Justice had concluded that the techniques were legal.

We the People?

It increasingly looks like whether or not this scandal develops any real traction -- the kind that brings down politicians and administrations -- will depend upon the People. That's People with a capital P, with whom the sovereignty of the government supposedly resides. Thomas Jefferson wrote to an anonymous correspondent in 1825:

"The government of a nation may be usurped by the forcible intrusion of an individual into the throne. But to conquer its will so as to rest the right on that, the only legitimate basis, requires long acquiescence and cessation of all opposition."

A younger, perhaps more idealistic Jefferson wrote to David Humphreys in 1789, the year the Bastille fell:

"Whenever our affairs go obviously wrong, the good sense of the people will interpose and set them to rights."

The question is which "People" exists in the present? Which Jeffersonian oracle will prevail?

              

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Jeffrey Kaye is a psychologist active in the anti-torture movement. He works clinically with torture victims at Survivors International in San Francisco, CA. His blog is Invictus; as "Valtin," he also regularly blogs at Daily Kos, Docudharma, American Torture, Progressive Historians, and elsewhere.

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