[PAA-Discuss] Cheney Exposes Torture Policy

Wed Feb 17 23:33:03 EST 2010

PAAers ......
Yoo and Bybee are the pawns the Bush/Cheney Cabal used to
write torture memos during the previous administration.
Forgiveness is a wonderful attribute .....but , BUT ..... this
arrogance and continuing practice must be brought in front of
the American people and must be ended.
The Draconian policies of War and the War Machine must be brought
to a halt by every means possible .

                 Cheney Exposes  Torture Conspiracy 

                By 
                  Robert Parry

                  February 14,  2010 

        If
the United States had a functioning criminal justice system for the
powerful – not just for run-of-the-mill offenders – former Vice
President Dick Cheney would have convicted himself and some of his Bush
administration colleagues with his comments on ABC’s “This Week.”

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        On
Sunday, Cheney pronounced himself “a big supporter of waterboarding,” a
near-drowning technique that has been regarded as torture back to the
Spanish Inquisition and that has long been treated by U.S. authorities
as a serious war crime, such as when Japanese commanders were
prosecuted for using it on American prisoners during World War II.

Cheney was unrepentant about his support for the technique. He answered
with an emphatic "yes" when asked if he had opposed the Bush
administration’s decision to suspend the use of waterboarding – after
it was employed against three “high-value detainees” sometimes in
repetitive sequences. He added that waterboarding should still be “on
the table” today. 
         Cheney
then went further. Speaking with a sense of impunity, he casually
negated a key line of defense that senior Bush officials had hidden
behind for years – that the brutal interrogations were approved by
independent Justice Department legal experts who thus gave the
administration a legitimate reason to believe the actions were within
the law.
         However, on Sunday,
Cheney acknowledged that the White House had told the Justice
Department lawyers what legal opinions to render. In other words, the
opinions amounted to ordered-up lawyering to permit the administration
to do whatever it wanted.
         In
responding to a question about why he had so aggressively attacked
President Barack Obama’s counter-terrorism policies, Cheney explained
that he had been concerned about the new administration prosecuting
some CIA operatives who had handled the interrogations and “disbarring
lawyers with the Justice Department who had helped us put those
policies together. …
        “I
thought it was important for some senior person in the administration
to stand up and defend those people who’d done what we asked them to
do.”
         Cheney’s comment about
the Justice lawyers who had “done what we asked them to do” was an
apparent reference to John Yoo and his boss, Jay Bybee, at the Office
of Legal Counsel (OLC), a powerful agency that advises the President on
the limits of his power.
         In
2002, Yoo – while working closely with White House officials – drafted
legal memos that permitted waterboarding and other brutal techniques by
narrowly defining torture. He also authored legal opinions that
asserted virtual dictatorial powers for a President during war, even
one as vaguely defined as the “war on terror.” Yoo’s key memos were
then signed by Bybee.
         In
2003, after Yoo left to be a law professor at the University of
California at Berkeley and Bybee was elevated to a federal appeals
court judgeship in San Francisco, their successors withdrew the memos
because of the sloppy scholarship. However, in 2005, President George
W. Bush appointed a new acting chief of the OLC, Steven Bradbury, who
restored many of the Yoo-Bybee opinions.
        Legal Fig Leaf

In the years that followed, Bush administration officials repeatedly
cited the Yoo-Bybee-Bradbury legal guidance when insisting that the
“enhanced interrogation” of “war on terror” detainees – as well as
prisoners from the Iraq and Afghan wars – did not cross the line into
torture.
         In essence, the
Bush-Cheney defense was that the OLC lawyers offered honest opinions
and that everyone from the President and Vice President, who approved
use of the interrogation techniques, down to the CIA interrogators, who
conducted the torture, operated in good faith.

If, however, that narrative proved to be false – if the lawyers had
colluded with the policymakers to create legal excuses for criminal
acts – then the Bush-Cheney defense would collapse. Rather than
diligent lawyers providing professional advice, the picture would be of
Mob consiglieres counseling crime bosses how to evade the law.

Though Bush administration defenders have long denied that the legal
opinions were cooked, the evidence has long supported the
conspiratorial interpretation. For instance, in his 2006 book War by Other Means,
Yoo himself described his involvement in frequent White House meetings
regarding what “other means” should receive a legal stamp of approval.
Yoo wrote:
        “As the White
House held its procession of Christmas parties and receptions in
December 2001, senior lawyers from the Attorney General’s office, the
White House counsel’s office, the Departments of State and Defense and
the NSC [National Security Council] met a few floors away to discuss
the work on our opinion. …
        “This group of lawyers would meet repeatedly over the  next months to develop policy on the war on terrorism. " 
        Yoo
said meetings were usually chaired by Alberto Gonzales, who was then
White House counsel and later became Bush’s second Attorney General.
Yoo identified other key players as Timothy Flanigan, Gonzales’s
deputy; William Howard Taft IV from State; John Bellinger from the NSC;
William “Jim” Haynes from the Pentagon; and David Addington, counsel to
Cheney.
        Yoo’s  Account

In his book, Yoo described a give-and-take among participants at the
meeting with the State Department’s Taft challenging Yoo’s OLC view
that Bush could waive the Geneva Conventions regarding the invasion of
Afghanistan (by labeling it a “failed state”). Taft noted that the
Taliban was the recognized government of the country.
        “We
thought Taft’s memo represented the typically conservative thinking of
foreign ministries, which places a priority on stabilizing relations
with other states – even if it means creating or maintaining fictions –
rather than adapting to new circumstances,” Yoo wrote.

Regarding objections from the Pentagon’s judge advocate generals – who
feared that waiving the Geneva Conventions would endanger American
soldiers – Yoo again stressed policy concerns, not legal logic.
        “It
was far from obvious that following the Geneva Conventions in the war
against al-Qaeda would be wise,” Yoo wrote. “Our policy makers had to
ask whether [compliance] would yield any benefit or act as a hindrance.”

What Yoo’s book and other evidence make clear is that the lawyers from
the Justice Department’s OLC weren’t just legal scholars handing down
opinions from an ivory tower; they were participants in how to make
Bush’s desired actions “legal.”

They were the lawyerly equivalents of those U.S. intelligence analysts,
who – in the words of the British “Downing Street Memo” – “fixed” the
facts around Bush’s desire to justify invading Iraq. 

The importance of this question – whether the OLC lawyers were honest
brokers or criminal conspirators – was not missed by some of the
congressional leaders who pressed for a serious investigation of Bush’s
use of torture and other war crimes.

Two years ago, Sens. Dick Durbin, D-Illinois, and Sheldon Whitehouse,
D-Rhode Island, wrote a letter to the Justice Department’s watchdog
agencies requesting an investigation into the role that “Justice
Department officials [played] in authorizing and/or overseeing the use
of waterboarding by the Central Intelligence Agency... and whether
those who authorized it violated the law.”

In the Feb. 12, 2008, letter, the senators questioned whether the OLC
lawyers were “insulated from outside pressure to reach a particular
conclusion” and whether Bush’s White House and the CIA played any role
in influencing “deliberations about the lawfulness of waterboarding,” a
technique that creates the sensation of drowning.

Whitehouse, a former federal prosecutor, said those questions were
designed to get to the point that having in-house lawyers dream up a
legal argument doesn’t make an action legal, especially if the lawyers
were somehow induced to produce the opinion.
        Defining Torture

In the case of waterboarding and other abusive interrogation tactics,
Yoo and Bybee generated a memo, dated Aug. 1, 2002, that came up with a
novel and narrow definition of torture, essentially lifting the
language from an unrelated law regarding health benefits.

The Yoo-Bybee legal opinion stated that unless the amount of pain
administered to a detainee led to injuries that might result in "death,
organ failure, or serious impairment of body functions" then the
interrogation technique could not be defined as torture.

Since waterboarding is not intended to cause death or organ failure –
only the panicked gag reflex associated with drowning – it was deemed
not to be torture.
         The
“torture memo” and related legal opinions were considered so
unprofessional that Bybee’s replacement to head the OLC, Jack
Goldsmith, himself a conservative Republican, took the extraordinary
step of withdrawing them after he was appointed in October 2003. 

However, Goldsmith was pushed out of his job after a confrontation with
Cheney’s counsel Addington, and the later appointment of Bradbury
enabled the Bush White House to reinstate many of the Yoo-Bybee
opinions.
         Last month,
Newsweek reported that Yoo and Bybee had avoided any disciplinary
recommendations because a draft report by the Justice Department’s
Office of Professional Responsibility had been rewritten to remove
harsh criticism that the two lawyers had violated professional
standards, softening the language to simple criticism of their judgment.

The weaker language meant that the Justice Department would not refer
the cases to state bar associations for possible disbarment proceedings.

Cheney’s frank comments on “This Week” – corroborating that Yoo and
Bybee “had done what we asked them to do” – suggest that former Bush
administration officials are confident that they will face no
accountability from the Obama administration for war crimes.

Though the ABC News interviewer Jonathan Karl deserves some credit for
posing the waterboarding question to Cheney, it was notable that Karl
didn’t react with any shock or even a follow-up when Cheney pronounced
himself a fan of the torture practice. Cheney’s waterboarding
endorsement was only a footnote in ABC’s online  account of the interview.  

Surely, if a leader of another country had called himself “a big
supporter of waterboarding,” there would have been a clamor for his
immediate arrest and trial at The Hague.

That Cheney feels he can operate with such impunity is a damning
commentary on the rule of law in the United States, at least when it
comes to the nation’s elites.
        Robert Parry broke many of the Iran-Contra   stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written   with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous   books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate   to Iraq and Lost History: Contras, Cocaine, the Press & 'Project   Truth' are also available there. Or go to Amazon.com.
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