George W. Bush’s White House stage-managed the Justice Department’s approval of torture techniques by putting pliable lawyers in key jobs, guiding their opinions and punishing officials who wouldn’t go along, according to details contained in an internal report that recommended disciplinary action against two lawyers.
Though the report by the Justice Department’s Office of Professional Responsibility concentrated on whether lawyers John Yoo and Jay Bybee deserved punishment for drafting and signing 2002 memos that permitted brutal interrogations of suspected terrorists, the report also revealed how the White House pulled the strings of Yoo, Bybee and others.
James Comey, President Barack Obama’s nominee to head the FBI.
The report puts into sharper focus what former Vice President Dick Cheney meant when he told an ABC News interviewer on Feb. 14, 2010, that he has spoken out loudly against the Obama administration’s revised counter-terrorism policies to disrupt possible punishments of Yoo, Bybee and CIA interrogators.
“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 said.
A little-noticed subplot in the OPR’s 289-page report was how the Bush administration got the legal opinions that it wanted from the Justice Department’s Office of Legal Counsel, which advises the President and the Executive Branch on the limits of their legal powers.
An important first step for the White House was to make sure that the work on legal opinions regarding harsh interrogations was done by a lawyer like Yoo who already held extreme views on the powers of a President during wartime. Even then, however, the White House did not leave it to Yoo to decide what limits should be put on the CIA’s interrogation techniques or what parameters should circumscribe President Bush’s power during the “war on terror.”
For instance, John Bellinger, a lawyer at the National Security Council, told the OPR that Yoo was “under pretty significant pressure to come up with an answer that would justify” the interrogation program. Yoo also shared drafts of his opinion with White House officials and received suggestions on how to revise it.
On July 10, 2002, Yoo told a colleague via e-mail that “we’re going over to visit with the NSC at 10:45 on Friday [July 12, 2002] … and give them at that time our draft of the opinion to comment on.” The title of that draft was the “bad things opinion,” reflecting what “bad things” could be done to terror suspects in U.S. custody.
On that Friday, Yoo met with White House counsel Alberto Gonzales and, apparently, Cheney’s legal counsel David Addington, who was known as a fellow hardliner on presidential power, the OPR report said. Another meeting was held at the White House the following Tuesday, July 16, 2002.
Expanding Bush’s Power
After those meetings, Yoo and his OLC associates added two new sections relating to how presidential power could override the anti-torture statutes and what possible defenses could be used by CIA interrogators who exceeded official guidelines.
Yoo claimed the two sections were added because of internal OLC conversations that he had with his OLC boss, Bybee, and another assistant Patrick Philbin. However, Philbin said he told Yoo that the two sections were superfluous and should be removed.
“According to Philbin, Yoo responded, ‘They want it in there.’ Philbin did not know who ‘they’ referred to and did not inquire; rather, he assumed that it was whoever had requested the opinion,” the OPR report said. Bybee also had no recollection of suggesting the two sections, though he defended their inclusion as justified “if the client requested the analysis.”
Alberto Gonzales “speculated that because David Addington had strong views on the Commander-in-Chief power, he may have played a role in developing that argument,” the OPR report said. In testimony before the House Judiciary Committee in 2008, Addington said he had praised Yoo’s possible inclusion of the two topics in the memo. He said he told Yoo, “Good, I’m glad you’re addressing these issues.”
But Addington added a cryptic comment regarding Yoo’s motivation. ”In defense of Mr. Yoo,” Addington said, “I would simply like to point out that is what his client asked him to do.” Responding to follow-up queries from OPR, Yoo and Bybee identified Yoo’s “client” as Addington.
The OPR investigators said they doubted Yoo’s story about Bybee and Philbin urging the inclusion of the two new sections, since they were not in the original draft and were only added after the July 16 meeting at the White House. “We believe it is likely that the sections were added because some number of attendees at the July 16 meeting requested the additions,” OPR said.
Curiously, too, when talking to OPR investigators, Yoo did not even recall that his memo had permitted the near-drowning technique of waterboarding. The report said: “Yoo told OPR that most of the techniques ‘did not even come close to the [legal] standard [of torture],’ but that ‘waterboarding did.’ He told us during his interview: ‘I had actually thought that we prohibited waterboarding. I didn’t recollect that we had actually said that you could do it.’ He added:
“‘[T]he waterboarding, as it’s described in that memo, is very different than the waterboarding that was described in the press. And so when I read the description in the press of what waterboarding is, I was like, oh, well, obviously that would be prohibited by the statute.’”
Rushing the Opinions
While working on a second interrogation memo, Yoo sent an e-mail message to a colleague that said, “I talked to the white house. They would like the memos done as soon as possible.” In another e-mail, Yoo said comments from White House counsel Gonzales and others would be incorporated.
Gonzales told OPR that he would write his comments on Yoo’s draft and then pass the material onto Addington or another White House lawyer, “who would forward them to Yoo along with their own comments. … Gonzales commented … that Addington was ‘an active player’ in providing his view and input on the draft memorandum. [Gonzales] stated: ‘I’d be very surprised [if] David [Addington] did not participate in the drafting of this document.”
Beyond the issue of substance, the White House dictated the pace of the OLC legal analysis, demanding that one opinion be signed by close of business on Aug. 1, 2002. According to CIA records, the finished memo was faxed to the CIA at 10:30 p.m. on Aug. 1. Until the end of the process, Philbin had doubts about including the section describing sweeping Commander-in-Chief powers.
It was in this context that OPR investigators asked Yoo about his views on Bush’s virtually limitless powers in wartime, posing the hypothetical of whether the President could order “a village of civilians to be [exterminated]?” Yoo answered, “Sure.”
In the case of waterboarding and other abusive interrogation tactics, the Yoo-Bybee opinion offered a novel and narrow definition of torture, essentially lifting the language from an unrelated law regarding health benefits. The Yoo-Bybee memo 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.
Beyond the evidence of how the White House manipulated Yoo and Bybee in carving out broad powers for President Bush and the CIA to torture, there is additional proof that the White House continued its behind-the-scene control after Bybee left the OLC to become a federal judge in 2003.
Replacing Bybee
White House counsel Gonzales wanted Yoo to replace Bybee as OLC chief, but Attorney General John Ashcroft objected because he considered Yoo “too close to the White House,” a footnote in the OPR report said. Gonzales, in turn, nixed Ashcroft’s choice, his counselor Adam Ciongoli, leading the administration to name Jack Goldsmith as a compromise choice.
Goldsmith was regarded as a conservative Republican who supported strong presidential powers. However, after taking over the OLC and reviewing the Yoo-Bybee memos, Goldsmith was aghast at the sloppy scholarship and took the extraordinary step of withdrawing them.
Soon, Goldsmith encountered Addington’s wrath. In his memoir, The Terror Presidency, Goldsmith described a White House meeting at which Addington pulled out a 3-by-5-inch card listing the OLC opinions that Goldsmith had withdrawn. “Since you’ve withdrawn so many legal opinions that the President and others have been relying on,” Addington said sarcastically, “we need you to go through all of OLC’s opinions and let us know which ones you will stand by.”
Though supported by Deputy Attorney General James Comey, Goldsmith succumbed to the White House pressure and quit in 2004. He was replaced by Daniel Levin, who also reviewed the Yoo-Bybee material and reached a conclusion much like Goldsmith’s. Levin told the OPR that he remembered “having the same reaction I think everybody who reads it has – ‘this is insane, who wrote this?’”
When Levin turned to addressing the interrogation issue, he said he faced no pressure from the CIA, but the “White House pressed” him, adding:.“I mean, a part of their job is to push, you know, and push as far as you can. Hopefully, not push in a ridiculous way, but they want to make sure you’re not leaving any executive power on the table.”
But Levin didn’t give White House officials their desired opinions on interrogation and he was soon gone. Deputy Attorney General Comey said senior levels of the Justice Department understood that Levin was denied appointment as permanent OLC chief because he had not “delivered.”
OLC lawyer Philbin also faced the ire of the Vice President’s office. In November 2004, Philbin had a private talk with Addington “who told him that, based on his participation in the withdrawal of [Yoo-Bybee memos], Addington believed that Philbin had violated his oath to uphold, protect and defend the Constitution of the United States,” the OPR report said.
“Addington told Philbin that he would prevent Philbin from receiving any advancement to another job in the government and that he believed that it would be better for Philbin to resign immediately and return to private practice,” the OPR report said.
Continuing the Pressure
The White House pressure on the interrogation issue continued into 2005 after Ashcroft resigned and Bush moved his longtime counsel, Gonzales, into the office of Attorney General.
In an April 27, 2005, e-mail, Comey recounted a meeting in which “the AG explained that he was under great pressure from the Vice President to complete both [replacement] 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 noted that Steven Bradbury, who had been named acting chief of the OLC, “was getting similar pressure from [White House counsel] Harriet Miers and David Addington to produce the opinions. Parenthetically, I have previously expressed my worry that having Steve as ‘Acting’ – and wanting the job – would make him susceptible to just this kind of pressure.”
Addington’s job threat against Philbin also proved not to be an idle one. In summer 2005, when Philbin was picked for a high-level job in the Office of Solicitor General, Philbin said Addington strenuously objected and Vice President Cheney personally called Gonzales to ask that the appointment be withdrawn.
“AG Gonzales agreed and told Philbin that he had decided that Philbin would not receive the job in order to maintain good relations with the White House,” a footnote in the OPR report said. When Philbin protested, Gonzales said he should resign, which Philbin finally did.
Meanwhile, Comey worried about the damage that the White House pressure on the interrogation memos might do to the Justice Department and the Attorney General. In one e-mail, Comey warned that “this opinion would come back to haunt the AG and DOJ. … the people who were applying pressure now would not be here when the shit hit the fan. Rather, they would simply say they had only asked for an opinion. It would be Alberto Gonzales in the bullseye.”
Comey added: “It leaves me feeling sad for the Department and the AG. I don’t know what more is to be done, given that I have already submitted my resignation. I just hope that when all of this comes out, this institution doesn’t take the hit, but rather the hit is taken by those individuals who occupied positions at OLC and OAG [Office of the Attorney General] and were too weak to stand up for the principles that undergird the rest of this great institution.”
Comey told the OPR investigators that there was pressure from the White House and particularly Vice President Cheney and his staff. Though they never were specific about their desired outcome on the memos, Comey said you would have to “be an idiot not to know what was wanted.”
Comey felt that acting OLC chief Bradbury knew that “if he rendered an opinion that shut down or hobbled the [interrogation] program,” Cheney and Addington would be “furious.” Bellinger, who moved from the NSC to the State Department in 2005, told OPR that there was tremendous pressure on the Justice Department to conclude that the interrogation program was legal and could continue.
New Torture Memos
Finally in May 2005, acting OLC chief Bradbury signed three new “torture” memos. In June, Bush formally nominated him to be assistant attorney general for the OLC (although Democratic objections in the Senate prevented him from ever gaining confirmation).
With Bradbury’s memos reaffirming many of the administration’s brutal interrogation techniques, Comey began preparing for his exit. Though having been a successful prosecutor on past terrorism cases, such as the Khobar Towers bombing which killed 19 U.S. servicemen in 1996, Comey had earned the derisive nickname from Bush as “Cuomey” or just “Cuomo,” a strong insult from Republicans who deemed former New York Gov. Mario Cuomo to be excessively liberal and famously indecisive.
On Aug. 15, 2005, in his farewell speech, Comey urged his colleagues to defend the integrity and honesty of the Justice Department. “I expect that you will appreciate and protect an amazing gift you have received as an employee of the Department of Justice,” Comey said. “It is a gift you may not notice until the first time you stand up and identify yourself as an employee of the Department of Justice and say something – whether in a courtroom, a conference room or a cocktail party – and find that total strangers believe what you say next.
“That gift – the gift that makes possible so much of the good we accomplish – is a reservoir of trust and credibility, a reservoir built for us, and filled for us, by those who went before – most of whom we never knew. They were people who made sacrifices and kept promises to build that reservoir of trust.
“Our obligation – as the recipients of that great gift – is to protect that reservoir, to pass it to those who follow, those who may never know us, as full as we got it. The problem with reservoirs is that it takes tremendous time and effort to fill them, but one hole in a dam can drain them.
“The protection of that reservoir requires vigilance, an unerring commitment to truth, and a recognition that the actions of one may affect the priceless gift that benefits all. I have tried my absolute best – in matters big and small – to protect that reservoir and inspire others to protect it.”
Though the full import of Comey’s speech was not apparent at the time, it now appears he was referring to the legal gamesmanship that had undercut the Justice Department’s traditional commitment to the rule of law and enabled the Bush administration to engage in torture and other abuses of power.
Hoping for Accountability
At the start of the Obama administration, some civil libertarians and constitutionalists hoped that there would be some accountability for the torturers and their accomplices in the Bush administration. But those hopes have been dashed.
The OPR investigators did conclude that Yoo and Bybee violated “professional standards” and deserved possible disbarment as lawyers. [Yoo returned to academia as a tenured law professor at the University of California at Berkeley and Bybee was appointed a federal appeals court judge in San Francisco.]
But career prosecutor David Margolis, who was put in charge of reviewing the OPR’s findings, downgraded the criticism to simply “poor judgment,” which means the Justice Department won’t refer their cases to state bar associations.
Meanwhile, Cheney has lashed out at even the mildest suggestion that there might be some accountability. He also has spoken up in defense of waterboarding and of the people in the OLC and the CIA who made it possible.
In his Feb. 14, 2010, interview on ABC’s “This Week,” Cheney pronounced himself “a big supporter of waterboarding,” although it has been regarded as a form of torture since the Spanish Inquisition and 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.
But Cheney was unrepentant about his support for the technique. He answered “yes” when asked if he had opposed the Bush administration’s decision to suspend 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 undercut 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.
Cheney acknowledged that the White House had guided the Justice Department lawyers. In responding to a question about why he had so aggressively attacked 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.”
Based on Cheney’s comment and the newly released OPR report, it is now apparent that Yoo, Bybee and Bradbury 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.
In justifying torture, these government lawyers had behaved less like diligent attorneys providing professional advice to honest clients and more like Mob consiglieres counseling crime bosses on how to evade the law.