Tuesday, April 28, 2009

About Those Memos

Is OPR Report the Key?

This story from the Future of Freedom Foundation's Andy Worthington (h/t Mike's Blog Roundup) has some interesting facts about the torture memos affair.

Some people have been saying that a full investigation won't and shouldn't get underway until the release of a report by the DoJ's Office of Professional Responsibility into actions taken by the Office of Legal Counsel, another branch of DoJ, the latter having much closer ties with the White House. OPR has been investigating OLC for FOUR YEARS now.
[T]he Justice Department’s Office of Professional Responsibility (OPR), ... was charged with looking at whether the legal advice in the crucial interrogation memos “was consistent with the professional standards that apply to Department of Justice attorneys.”

According to Newsweek’s Michael Isikoff, who broke the story, a draft of the report, submitted in the final weeks of the Bush administration, caused anxiety among former Bush administration officials, because “OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted.” A former Bush lawyer, speaking anonymously, added that he “was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.
That's news to me, and a significant positive for those who wish to see justice done on this issue. We already know that these memos were complete fabrications by any legal standards; created to provide an impression of legality that was utterly without substance. Chances are very good that the internal e-mails and multiple drafts will show that the various players - Bybee, Yoo, Bradbury, Gonzales, etc. - were not just bad lawyers doing sloppy work, but criminals entering into a conspiracy against the constitution and rule of law. Another repercussion if this is found to be the case -- the attorney-client privilege goes out the window. But even more significantly,
The OLC, as the New York Times explained in September 2007, holds a uniquely influential position, as it “interprets all laws that bear on the powers of the executive branch. The opinions of the head of the office are binding, except on the rare occasions when they are reversed by the attorney general or the president.” The legal opinions were, therefore, regarded as a “golden shield” by the administration, although, as lawyer Peter Weiss noted after I last wrote about the Bush administration’s war crimes, “it cannot be binding if it violates the constitution, or a jus cogens prohibition of international law, e.g. torture, or, perhaps, if it was made to order for the executive, as you demonstrate it was.”
So, such a finding would not only put exoneration for the memos' authors well out of reach, it would nullify any protection that those documents extend to any of the torturers themselves. Note that I'm speaking in legal, not political terms. Political mechanisms for protecting the guilty seem to be both numerous and robust. Even so, the anonymous former Bush lawyer quoted above who was "stunned to discover" the details at OPR's disposal must be filling his Fruit of the Looms. A particular sticky point hinges on the actions of Jack Goldsmith.
...Jack Goldsmith ... took over from Bybee as the head of the OLC in October 2003. A supposedly “safe pair of hands,” who, with Yoo, was regarded as “a leading proponent of the view that international standards of human rights should not apply in cases before U.S. courts,” Goldsmith in fact turned out to be a nightmare for the administration, as he withdrew four pieces of legal advice — including the “torture memo” and a March 2003 memo approving the more general use of “enhanced interrogation techniques” — because he regarded them as “tendentious, overly broad and legally flawed.”

As Goldsmith explained in September 2007 to Jeffrey Rosen of the New York Times, he concluded that the “torture memo” contained advice that “defined torture far too narrowly,” and also took exception to the memo’s claim that “any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the commander in chief authority in the president,” explaining that he believed that “this extreme conclusion” would “call into question the constitutionality of federal laws that limit interrogation, like the War Crimes Act of 1996, which prohibits grave breaches of the Geneva Conventions, and the Uniform Code of Military Justice, which prohibits cruelty and maltreatment.” He added that he “found the tone of both opinions ‘tendentious’ rather than cautious and feared that they might be interpreted as an attempt to immunize government officials for genuinely bad acts.”

When it came to withdrawing the “torture memo,” Goldsmith was acutely aware that it would anger the administration, because it “provided the legal foundation for the CIA’s interrogation program,” and, as Rosen described it,
He made a strategic decision: on the same day that he withdrew the opinion, he submitted his resignation, effectively forcing the administration to choose between accepting his decision and letting him leave quietly, or rejecting it and turning his resignation into a big news story. ”If the story had come out that the U.S. government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” Goldsmith told me. ”The timing was designed to ensure that the decision stuck.
Given the time line there should be no-one whose undies are more stained than those of the OLC’s Principal Deputy Assistant Attorney General, Steven G. Bradbury. Yoo and Bybee might argue, however lamely, that they were just mistaken in their interpretation of the law, but Bradbury's three memos of May 2005 (available as PDFs here, here and here) came after Goldsmith had called bullshit on the earlier arguments. There seem no legal defenses left for Bradbury, unless he can demonstrate himself to have been clinically insane at the time. Then again, the APA might add Republicanism to its list of mental defects in the next DSM IV.

As I noted above, as dire as things get for these potential defendants in pure legal terms, there is still a chance that political forces wishing to just move on will prevail. As Worthington notes,
I maintain, as I last stressed a month ago, that the release of the OPR report is of critical importance (especially in light of recent reports that it has been rewritten, or is being rewritten, to reach a less stark conclusion of wrongdoing), as it seems clear that it is the key to securing concrete proof of the involvement of Dick Cheney, David Addington and Alberto Gonzales in the creation of the torture memos.
If true, that sucks. And what sucks worse is the way that the Lamestream Media has bent over backwards to portray the entire torture program in very Cheney-esque terms, as though it were 'a dunk in the water' being talked about here. Something you can do wearing a suit and tie, like watering the plant next to your desk in the office. (see illustration, top)

Glenn Greenwald has of course been meticulously chronicling the media's wave of propaganda in defense of the indefensible here, here, here, here, here and here. He's also done a post on the complicity of the Democrats here. So don't hold your breath waiting for justice - if you do you may end up feeling like a waterboarding victim yourself.

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