Torture's Smoking Guns

By Dan Froomkin
Special to washingtonpost.com
Wednesday, October 15, 2008; 12:43 PM

Had they embarked on a serious inquiry into the legality, morality or even utility of torturing terror suspects, members of the Bush administration would have had no alternative but to conclude that what they were authorizing was illegal, unconscionable, and ineffective to boot. But soul-searching, evidently, was not a high priority.

The people closer to the operational level did, however, spend plenty of time making sure their asses were covered.

And the result is documentary evidence that perhaps some day will serve as Exhibit A that White House officials at the highest levels explicitly endorsed tactics that by any reasonable standard constituted torture, violated domestic and international law, and cast aside the respect for basic human dignity that has so long been central to our values as a country.

Joby Warrick writes in The Washington Post: "The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency's use of interrogation techniques such as waterboarding against al-Qaeda suspects -- documents prompted by worries among intelligence officials about a possible backlash if details of the program became public.

"The classified memos, which have not been previously disclosed, were requested by then-CIA Director George J. Tenet more than a year after the start of the secret interrogations, according to four administration and intelligence officials familiar with the documents. Although Justice Department lawyers, beginning in 2002, had signed off on the agency's interrogation methods, senior CIA officials were troubled that White House policymakers had never endorsed the program in writing. . . .

"As early as the spring of 2002, several White House officials, including then-national security adviser Condoleezza Rice and Vice President Cheney, were given individual briefings by Tenet and his deputies, the officials said. Rice, in a statement to congressional investigators last month, confirmed the briefings and acknowledged that the CIA director had pressed the White House for 'policy approval.'

"The repeated requests for a paper trail reflected growing worries within the CIA that the administration might later distance itself from key decisions about the handling of captured al-Qaeda leaders, former intelligence officials said."

"'The CIA believed then, and now, that the program was useful and helped save lives,' said a former senior intelligence official knowledgeable about the events. 'But in the agency's view, it was like this: "We don't want to continue unless you tell us in writing that it's not only legal but is the policy of the administration." '

"One administration official familiar with the meetings said the CIA made such a convincing case that no one questioned whether the methods were necessary to prevent further terrorist attacks. . . .

"But others who were present said Tenet seemed more interested in protecting his subordinates than in selling the administration on a policy that administration lawyers had already authorized."

Warrick notes what appears to be, at best, half-hearted pushback from some corners of the White House.

"Rice last month became the first Cabinet-level official to publicly confirm the White House's awareness of the program in its earliest phases. In written responses to questions from the Senate Armed Services Committee, Rice said Tenet's description of the agency's interrogation methods prompted her to investigate further to see whether the program violated U.S. laws or international treaties. . . .

"'I asked that . . . [then-attorney general John] Ashcroft personally advise the NSC principles whether the program was lawful,' Rice wrote. . . .

"Rice, now secretary of state, portrayed the White House as initially uneasy about a controversial CIA plan for interrogating top al-Qaeda suspects. . . .

"But whatever misgivings existed that spring were apparently overcome. Former and current CIA officials say no such reservations were voiced in their presence."

Today's news doesn't substantially change the already well-documented torture narrative, which puts the responsibility for approving waterboarding and other abusive tactics squarely at the highest levels of the White House. See, for instance, my April 14 column, Bush OK'd Torture Meetings, and my July 14 column, The Outlaw Presidency, about author Jane Mayer's tale of fear and its exploitation by Vice President Cheney.

Ostensibly, of course, this was all to protect the nation from terror attacks, and President Bush himself has claimed success. In a February Fox News interview, for instance, Bush said: "The American people have got to know that what we did in the past gained information that prevented an attack. And for those who criticize what we did in the past, I ask them, which attack would they rather have not permitted -- stopped? Which attack on America did they -- would they have said, well, you know, maybe it wasn't all that important that we stop those attacks."

But there's absolutely no evidence in the public domain to support Bush's assertion -- and no thwarted attacks to choose between.

And despite repeated assertions by Bush and his aides that " we don't torture," waterboarding -- a method of controlled drowning -- has been an iconic and almost universally condemned form of torture since the Spanish Inquisition.

Furthermore, interrogation experts say torture is counterproductive. There is nothing remotely logical about embracing torture, unless your goal is to extract confessions.

It remains unclear what tactics the CIA is still approved to use in the future. Bush in March successfully vetoed a bill that would have imposed on the CIA the same anti-torture prohibitions mandated by the Army Field Manual -- prohibitions against such tactics as waterboarding, prolonged exposure to freezing temperatures, forced nudity, sexual humiliation, mock executions, the use of attack dogs, the application of electric shocks and the withholding of food, water and medical care.

Incidentally, Steven Aftergood blogs for Secrecy News: "A newly reissued Department of Defense directive explicitly prohibits several of the more controversial interrogation techniques that have previously been practiced against suspected enemy combatants.

"So, for example, the new directive states that 'Use of SERE [Survival, Evasion, Resistance, and Escape] techniques against a person in the custody or effective control of the Department of Defense or detained in a DoD facility is prohibited.' Waterboarding, in which a sensation of drowning is induced, is one such SERE technique."

Signing Statements Watch

Charlie Savage writes in the New York Times: "President Bush asserted on Tuesday that he had the executive power to bypass several parts of two bills: a military authorization act and a measure giving inspectors general greater independence from White House control.

"Mr. Bush signed the two measures into law. But he then issued a so-called signing statement in which he instructed the executive branch to view parts of each as unconstitutional constraints on presidential power.

"In the authorization bill, Mr. Bush challenged four sections. One forbid the money from being used 'to exercise United States control of the oil resources of Iraq'; another required negotiations for an agreement by which Iraq would share some of the costs of the American military operations there.

"The sections 'purport to impose requirements that could inhibit the president's ability to carry out his constitutional obligations,' including as commander in chief, Mr. Bush wrote.

"In the other bill, he raised concerns about two sections that strengthen legal protections against political interference with the internal watchdog officials at each executive agency. . . .

"The White House has defended Mr. Bush's use of signing statements as lawful and appropriate. But in 2006, the American Bar Association called the device 'contrary to the rule of law and our constitutional system of separation of powers.'

"Mr. Bush has used the signing statements to assert a right to bypass more than 1,100 sections of laws. By comparison, all previous presidents combined challenged about 600 sections of bills."

As I noted in my October 1 column, Bush's first signing statement in eight months actually came two weeks ago, appended to a $630 billion-plus stop-gap spending bill and vaguely objecting to "certain provisions similar to those found in prior appropriations bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities."

Last-Minute Rule-Making Watch

Alicia Mundy writes in the Wall Street Journal: "Bush administration officials, in their last weeks in office, are pushing to rewrite a wide array of federal rules with changes or additions that could block product-safety lawsuits by consumers and states.

"The administration has written language aimed at pre-empting product-liability litigation into 50 rules governing everything from motorcycle brakes to pain medicine. . . .

"This year, lawsuit-protection language has been added to 10 new regulations, including one issued Oct. 8 at the Department of Transportation that limits the number of seatbelts car makers can be forced to install and prohibits suits by injured passengers who didn't get to wear one.

"These new rules can't quickly be undone by order of the next president. Federal rules usually must go through lengthy review processes before they are changed. Rulemaking at the Food and Drug Administration, where most of the new pre-emption rules have appeared, can take a year or more. . . .

"The use of rulemaking to protect corporations from product liability was discussed from early in the Bush administration, said former Bush domestic-policy adviser Jay Lefkowitz, who was instrumental in the process. . . .

"Mr. Lefkowitz said the administration decided not to press its pre-emption agenda in Congress, where it might lose. 'There was already authority within federal government statutes and regulations to start the reform process without legislation,' he said. 'Using that and legal briefs, we proceeded.'"

There's much more in a report from the American Association for Justice, the trial lawyers' lobby, based on its repeated attempts to learn more through the Freedom of Information Act.

Executive Privilege Watch

Jeff Bliss writes for Bloomberg: "President George W. Bush overstepped his authority by withholding an FBI interview of Vice President Dick Cheney from a congressional panel probing the leak of a CIA agent's identity, a draft bipartisan House report said.

"The interview may shed light on who disclosed former CIA agent Valerie Plame's identity, the draft report said. The report was circulated by House Oversight and Government Reform Committee Chairman Henry Waxman, a California Democrat, and Virginia Representative Tom Davis, the panel's senior Republican.

"The president's decision to withhold the interview transcript from the committee in July 'was legally unprecedented and an inappropriate use of executive privilege,' the report said. . . .

"White House spokesman Tony Fratto today objected to the report and another one circulated by Waxman that said the administration wrongly asserted executive privilege regarding a separate panel investigation of climate change and Clean Air Act policies.

"Fratto said the committee received 'upwards of a million pages of documents' from the administration and that today's reports were partisan and unhelpful."

From the bipartisan report: "At its core, the doctrine of executive privilege is intended to preserve the ability of the President to receive confidential advice from the President's closest advisors. In the case of the FBI interview with the Vice President, there is no legal basis -- or precedent -- for asserting executive privilege in a situation like this. The Vice President had no reasonable expectation of confidentiality regarding the statements he made to Mr. Fitzgerald and the FBI agents. . . .

"There is no precedent holding that summaries of presidential conversations given to third parties -- as opposed to the original conversations themselves -- are subject to claims of executive privilege. . . .

"There is also no precedent in which executive privilege has been asserted over communications between a vice president and his staff about vice presidential decisionmaking. The Administration's refusal to produce the Vice President's interview report is particularly puzzling in light of the position taken by the Office of the Vice President that the Vice President is not an 'entity within the executive branch.' The logical extension of the Vice President's position is that executive branch confidentiality interests would not be relevant to his communications."

For background, see my Dec. 3 column, Bush Blocking Fitzgerald Cooperation, and my July 17 column, Mukasey the Obstructionist.

Politicization Watch

A draft report from House Oversight and Government Reform Committee Chairman Henry Waxman out this morning charges that in the months before the 2006 elections, the White House Office of Political Affairs "enlisted agency heads across government in a coordinated effort to elect Republican candidates to Congress," directing them "to make hundreds of trips -- most at taxpayer expense -- for the purpose of increasing the electability of Republicans."

More tomorrow.

Poll Watch

John Whitesides writes for Reuters: "A record low of 21 percent in a Zogby poll gave positive marks to Bush's job performance. . . .

"Ratings for the Bush administration's foreign and economic policy plummeted over the last month, with the number of people who give positive marks to economic policy falling to a paltry 7 percent from 13 percent."

Cathleen Decker writes in the Los Angeles Times that a new Los Angeles Times/Bloomberg poll makes it clear that Republican presidential candidate John McCain "remains tethered to an unpopular president. Obama has repeatedly pressed the argument that the Republican's first term would be akin to George W. Bush's third. Americans generally agreed: 52% said McCain would continue Bush's policies, compared with 42% who said he would not."

Kristin Jensen and Heidi Przybyla write for Bloomberg: "Bush's influence is palpable in the survey: 84 percent of Americans say the country is on the wrong track. Only 23 percent approve of the way he's handling his job, less than the level of support for Richard Nixon before he resigned in 1974."

Michael Cooper and Megan Thee write in the New York Times on the latest New York Times/CBS News poll: "With the election unfolding against the backdrop of an extraordinary economic crisis, a lack of confidence in government, and two wars, the survey described a very inhospitable environment for any Republican to run for office. More than 8 in 10 Americans do not trust the government to do what is right, the highest ever recorded in a Times/CBS News poll. And Mr. McCain is trying to keep the White House in Republican hands at a time when President Bush's job approval rating is at 24 percent, hovering near its historic low."

Where's the Leader?

Walter R. Mears writes for the Associated Press: "In times of national stress, Americans usually turn to the White House for reassurance. But President Bush's attempts to provide it haven't registered because he does not inspire trust. His standing sagged to record lows in the polls even before the financial meltdown, undermining his credibility as the administration tried to chart a way out of it. Fear of financial collapse, not the persuasion of the president, got the $700 billion bailout enacted."

Nationalization Watch

Dan Eggen writes in The Washington Post: "In announcing plans to partly nationalize nine major banks yesterday, President Bush found himself in the unusual position of having to reassure Americans that he was not, in fact, opposed to capitalism. . . .

"The ongoing global financial crisis has prompted a series of unlikely decisions by Bush, an avowed advocate of laissez-faire economics who has nonetheless approved dramatic government interventions over the last month in an attempt to free up credit and stabilize collapsing financial markets."

Richard Wolf writes for USA Today: "For a former small businessman, Bush's interventionist policies represent a quantum leap from the free market approach he brought to Washington from his native Texas. 'I made a decision that is really opposite of my philosophy,' he told[Chantilly, Va.] small-business owners last week.

"The latest venture into commercial banks -- 'capital injection' in White House lexicon -- is but another in a series of philosophical concessions Bush has made when convinced that sticking to his principles would bring on economic calamity."

The Angry Right

John Farmer writes in his Newark Star-Ledger opinion column: "The Bush administration has come full circle -- from Karl Rove to Karl Marx.

"Who'd have believed it? Socialism with a Republican face!

"With political guru Rove leading the laissez-faire chorus, no U.S. administration ever has been as ideologically committed to regulation-free market capitalism as the Bush team -- not even the Coolidge-Hoover administrations of the 1920s, when another speculation spree preceded the Great Depression.

"Yet the level of government intervention under Bush is unmatched by anything since the liberal Roosevelt administration in the Depression-dogged 1930s. Predictably, it has produced a wave of fear and loathing in deeply conservative circles."

Indeed.

Matthew Benjamin and Rich Miller write for Bloomberg: "The heirs to the Reagan revolution say the free-market principles that have held sway for almost three decades in the U.S. are being undermined. And many of them blame the Bush White House.

"This week's announcement that the Treasury will buy equity stakes in nine banks for $125 billion capped a month of the deepest government intervention in the economy in seven decades. More is likely to come, as lawmakers extend oversight of financial institutions and other industries."

Libertarians, supply-siders and tax-cut advocates agree "that the Bush administration is the main culprit for the betrayal of President Ronald Reagan's philosophy, which has underpinned the Republican Party for a generation.

"'It was brought about by George W. Bush abandoning any kind of Republican principles,' said William Niskanen, chairman emeritus of the Cato Institute, a libertarian Washington research group. . . .

"Bush's Republican critics say the president was pushing for a bigger government role long before the rescue. They point to moves ranging from the $168 billion stimulus plan the administration negotiated with Democrats in February, to the 2003 Medicare prescription-drug program, which is expected to cost hundreds of billions of dollars over the next decade."

Former congressman John LeBoutillier writes in his blog that Bush's "presidency has been anything but conservative. In fact, it has been the most incompetent, dis-honest and un-conservative administration - ever!

"Just look at these few items which, if done by a Democrat, would have brought calls from us on the Right not only to impeach but to imprison for life:"

His 16 bullet points include: "Lied, distorted and cherry picked US intelligence to scare the Hell out of a nervous American people after 9/11 to justify a pre-emptive invasion of a country that had not attacked us," "Mis-managed every aspect of the war in Iraq," "Showed true ineptitude - and a total lack of compassion - after that Compassionate Conservatism nonsense - in dealing with Hurricane Katrina," "Blustering and boasting and bragging at every turn about how we might bomb or attack or invade any country who dared to disagree with us" and "And now this year: one massive bail-out after another - over a trillion dollars - with talk of nationalizing banks and other industries."

Deficit Watch

John D. McKinnon writes in the Wall Street Journal: "The federal government ran a deficit of almost $455 billion in fiscal 2008, the White House reported, a record that will likely be far exceeded by the red ink in the current fiscal year.

"The widening deficit -- up from $162 billion for fiscal 2007 -- stemmed in large part from lower revenues and higher expenditures due to the troubled economy, as well as higher defense spending in Iraq and Afghanistan.

"As bad as 2008 was, the current fiscal year, which began Oct. 1, is widely expected to be far worse. The director of the Congressional Budget Office recently estimated the annual deficit could hit $750 billion given the potential impacts from a possible recession and the financial markets' problems. Some private economists put the 2009 deficit at as much as $1 trillion."

Iraq Watch

Matthew Lee writes for the Associated Press: "U.S. and Iraqi negotiators have agreed on a draft security pact that would govern the presence of American troops in Iraq after January, Bush administration officials say, but its final approval is far from certain.

"The draft calls for U.S. troops to pull out of Iraqi cities by the end of June next year and leave Iraq by Dec. 31, 2011, unless the Baghdad government asks them to stay. It also includes a compromise on the biggest bone of contention: legal immunity for American forces. . . .

"The compromise allows Iraq to claim jurisdiction over Americans while preserving nearly all the protections U.S. forces and employees now hold in Iraq. The vagueness appears deliberate, thus allowing both sides to argue they got concessions they needed. . . .

"The draft, reached after months of halting and often tense talks, contains elements that are expected to further aggravate an already difficult effort to get the Iraqi government and parliament on board, the officials said.

"It also may draw objections from U.S. lawmakers, whose support is not legally required but is considered essential to the eventual success of any deal, according to the officials.

"However, the negotiating teams have decided they cannot improve on the proposal and have sent it to higher-ups for a political decision as time runs out on both the Bush administration and the U.N. mandate under which U.S. troops now operate, which expires on Dec. 31, they say."

Cheney's Heart

Vice Presidential Press Secretary Megan Mitchell announced this morning that Cheney had cancelled a planned campaign event in Illinois today to get his heart restored to normal rhythm.

"During a visit with his doctors this morning, it was discovered that the Vice President is experiencing a recurrence of atrial fibrillation, an abnormal rhythm involving the upper chambers of the heart," she said in a statement. "Later this afternoon, the Vice President will visit George Washington University Hospital for an outpatient procedure to restore his normal rhythm."

Deb Riechmann notes for the Associated Press that this is "the second time in less than a year that he will have the procedure."

Another Sporting Event for Bush

Helene St. James writes for the Detroit Free Press: "President George W. Bush treated them like old friends who'd come back for one last visit, mentioning several by name and speaking in great detail of their accomplishments.

"The Red Wings enjoyed the last bit of pomp and circumstance befitting an NHL Stanley Cup champion Tuesday afternoon at the White House when they were honored by the president in a ceremony in the East Room. . . .

"'In 2002, the Red Wings were the first NHL team I hosted for a Stanley Cup ceremony,' the president said. 'Turns out they are the last team I'll be hosting. You guys may be back next year -- but not me. So I welcome you here.'...

"The team saw part of the White House before the ceremony, and spent a few moments talking to Bush in private.

"'I don't know how a president can ever be regular,' coach Mike Babcock said, 'but he is.'"

In her blog, St. James writes: "I'll say this: Regardless of one's political views, there's no doubt President George W. Bush knows how to talk sports."

Movie Watch

Roger Friedman writes for Fox News that "the real success of 'W' is that our current president comes off as sympathetic more often than not. [Director Oliver] Stone and his screenwriter Stanley Weiser do much to portray him as tortured son with a domineering father, a gullible lightweight who becomes almost a pawn in the hands of more demonic players. . . .

"Stone told me that during the making of the film, he actually came to feel sorry for George W. Bush. 'As a dramatist,' he said, 'not as a voter.' The movie, he agreed, plays more like a tragedy than a comedy."

J. Hoberman writes for the Village Voice: "This W. is the saga of a tormented, father-obsessed [expletive] who manages to play out his family drama on a world-historical stage."

Jeff Dufour and Patrick Gavin write for the D.C. Examiner about the movie's New York premiere last night: "The red carpet was filled with members of the 'W.' cast who were less than supportive of the current Republican administration. . . .

"James Cromwell, who played George Bush Sr., thinks Bush 43 ran the country like 'imperial Rome' and said that all he needs after being president 'is a good lawyer.'"

Neologism Watch

Upon reading yesterday's column, While Bush Fiddled, reader Max Lumens suggested the following neologism: "Nero-cons, the inevitable successors to Neo-cons. And boy, have we been conned."

Cartoon Humor

David Fitzsimmons on Che Bush and Britain's Peter Brookes asks: Who's the poodle now?