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Bybee’s Lawyer: Bybee Distracted from Torture Memo because Protecting Cheney’s Energy Task Force

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I’ll have more on Maureen Mahoney’s first response on behalf of Jay Bybee to the OPR report later today. But I wanted to draw attention to a footnote she includes to–apparently–explain that Jay Bybee was a very busy man at the time when he was supposed to be overseeing John Yoo’s attempts to legalize torture in the summer of 2002. (This is on PDF page 19)

Judge Bybee’s role in reviewing the memo began in earnest around mid-July, roughly two weeks before he signed them.5

5 During the summer of 2002, in addition to his work on national security issues, Judge Bybee, as head of OLC, was also heavily involved in a number of other difficult and pressing legal matters. Of particular note, Judge Bybee was engaged in the district court litigation in Walker v. Cheney, No. 02-340 (DD.C.). The attorneys in that case were working closely with the Department’s Civil Division and the Solicitor General’s Office. The legal issues involved in the case were peculiarly within Judge Bybee’s expertise because his scholarly research had been cited as authority by both sides. See Jay S. Bybee, Advising the President: Separation a/Powers and the Federal Advisory Committee Act, 104 Yale L.J. 51 (1994).

Walker v. Cheney, of course, is the suit the GAO took against Cheney’s office to try to force it to turn over documents relating to his Energy Task Force. After District Court Judge John Bates ruled against GAO in December 2002, it ended one of the more important efforts to subject Cheney’s office to Congressional oversight. Furthermore, this effort must be regarded as Cheney’s first attempt to assert that his was a Fourth Branch, exempt from oversight but also executive regulation.

How interesting, then, that Mahoney highlighted Bybee’s role in helping Cheney succeed in winning this suit to argue that Jay Bybee was doing what he should have been doing in summer 2002.

Dick and the Naked Senator: Waterboarding BFFs

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Breaking! (Not) Dick Cheney loves him some waterboarding.

KARL: If you have somebody in custody like Abdulmutallab, after just trying to blow up an airliner, and you think he has information on another attack, I mean, do you think that those enhanced interrogation techniques should have been — should have been used? I mean, would you — do you think that he should have been, for instance, subject to everything, including waterboarding?

CHENEY: Well, I think the — the professionals need to make that judgment. We’ve got people in — we had in our administration — I’m sure they’re still there — many of them were career personnel — who are expects in this subject. And they are the ones that you ought to turn somebody like Abdulmutallab over to, let them be the judge of whether or not he’s prepared to cooperate and how they can best achieve his cooperation.

KARL: But you believe they should have had the option of everything up to and including waterboarding?

CHENEY: I think you ought to have all of those capabilities on the table. Now, President Obama has taken them off the table. He announced when he came in last year that they would never use anything other than the U.S. Army manual, which doesn’t include those techniques. I think that’s a mistake.

Rather than focusing on Cheney’s restatement of his love for torture, I’d like to use the outrage about Cheney’s calm embrace of waterboarding (again) to recall two other data points.

First, the guy Massachusetts just elected to replace Teddy Kennedy? He is just as big a fan of waterboarding as Dick Cheney.

State Senator Scott Brown, the Republican candidate for US Senate, endorsed yesterday the use of enhanced interrogation techniques – including the practice of simulated drowning known as waterboarding – in questioning terror suspects.

[snip]

Brown, in response to a question, told reporters that Umar Farouk Abdulmutallab, 23, the Nigerian accused of trying to blow up a passenger jet en route to Detroit on Christmas Day, should be treated as an enemy combatant, taken to the US detention camp at Guantanamo Bay, Cuba, interrogated “pursuant to our rules of engagement and laws of war,’’ and not be treated as a civilian criminal suspect. Brown asserted that waterboarding does not constitute torture, but he did not specifically say Abdulmutallab should be subjected to waterboarding.

“I don’t support torture; the United States does not support torture,’’ Brown, a military lawyer in the Massachusetts National Guard, told reporters.

Yes, it’s bad that the war criminal who set up our torture system continues to push torture on the Sunday shows. But don’t forget that Senator Scott Brown, a JAG in MA’s National Guard with the rank of Lieutenant Colonel, has several years of legislating ahead of him, and he supports torture just as proudly as Dick Cheney.

Read more →

Fred Hiatt Loves Torture

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Well, I don’t know that for a fact. But I do know that the publication of Marc Thiessen’s propagandistic claims about Pelosi on the WaPo’s editorial page says more about the WaPo’s editorial page than it does about Pelosi. Let’s start with Thiessen’s primary claim.

According to this 2004 report, Pelosi objected to a CIA plan to provide money to moderate political parties in Iraq ahead of scheduled elections, in an effort to counter Iran, which was funneling millions to extremist elements. “House minority leader Nancy Pelosi ‘came unglued’ when she learned about what a source described as a plan for ‘the CIA to put an operation in place to affect the outcome of the elections,’ ” Time reported. “Pelosi had strong words with National Security Adviser Condoleezza Rice in a phone call about the issue. . . . A senior U.S. official hinted that, under pressure from the Hill, the Administration scaled back its original plans.”

Well, as Thiessen points out himself (and the WaPo even links), David Ignatius has already reported this … in the WaPo! So why would Fred Hiatt feel the need to publish that news again, on his op-ed page?

But Thiessen–and presumably Hiatt–want to repeat this news so they can “prove” that Pelosi had the ability to alter intelligence programs that she didn’t like.

Only there are several problems with Thiessen’s claim. First, the briefings. As we’ve shown over and over and over and over, Pelosi was not briefed that the CIA had already waterboarded Abu Zubaydah during her only briefing on this issue before 2006. And she certainly wasn’t briefed that CIA was going into the torture business before they did so. So it would have been absolutely impossible for her to halt the waterboarding that had already happened, not to mention the planned ones she wasn’t told about. Given the CIA’s (probably deliberate) failure to brief Pelosi in timely fashion, they cannot now, no matter what Dick Cheney tells the former Bush speechwriter to write, claim that Pelosi could have prevented the waterboarding.

And the fact-impaired Thiessen also claims that this letter does not register a protest.

At the briefing you assured us that the [redacted] approved by the Attorney General have been subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of Justice and the National Security Council and found to be within the law.It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions.

That “I am concerned” about the “profound policy questions,” Thiessen? Those are protests. Protests, of course, that we know the CIA blew off.

So this is a transparently false argument, printed in Fred Hiatt’s premier real estate.

I guess Dick Cheney must be getting worried again about his liability for torture.

Update: minor changes for accuracy.

Obama's New Classification Policy: the Good and the Bad

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Steven Aftergood reviews Obama’s new classification Executive Order and finds much to be happy about.

For the first time, each executive branch agency that classifies information will be required to perform “a comprehensive review” of its internal classification guides to validate them and “to identify classified information that no longer requires protection and can be declassified.”  The new requirement is one of the most potentially significant features of an Executive Order on national security classification policy that was signed by President Obama last week.

There are more than two thousand agency classification guides currently in use and they constitute the detailed operating instructions of the classification system.  If the so-called Fundamental Classification Guidance Review (set forth in section 1.9 of the new Order) is faithfully implemented by the agencies, it should eliminate numerous obsolete classification requirements and effectively rewrite the “software” of government secrecy.

Other outstanding features of the new Executive Order 13526 include the establishment of a National Declassification Center to coordinate and streamline the declassification process (section 3.7);  the adoption of the principle that “No information may remain classified indefinitely” (section 1.5d);  and the elimination of an intelligence community veto of declassification decisions made by the Interagency Security Classification Appeals Panel. This veto authority had been granted by the Bush Administration in 2003.

But the Order contains many dozens of other changes in language that are subtle but important.  So, for example, section 3.1g states that “no information may be excluded from declassification… based solely on the type of document or record in which it is found.”  What this simple formulation does (or is expected to do) is to eliminate the permanent classification of the President’s Daily Brief (PDB), the daily intelligence compilation that is delivered to the President each morning.  The CIA has long argued that by virtue of being presented to the President, the information contained in PDBs is inherently and permanently classified.  Now it’s not.

[snip]

Some of the changes suggest previously unsuspected problems or issues.  Section 4.1c states curiously that “An official or employee leaving agency service may not … direct that information be declassified in order to remove it from agency control.”  There may be a story behind that new provision, but I don’t know what it is.  Section 3.1h states for the first time that classified “artifacts” and other classified materials that are not in the form of records shall be declassified in the same way as classified records.

I wonder whether they’re considering “CIA officer’s classified identity” to be an artifact in that last bit?

But Aftergood notes some areas in which Obama’s EO supports more secrecy.

Not all of the changes are in the direction of increased disclosure.  Section 4.3 authorizes the Attorney General, as well as the Secretary of Homeland Security, to establish highly secured Special Access Programs, an authority reserved in the previous Executive Order to the Secretaries of Defense, State, Energy and the then-Director of Central Intelligence.  Sections 1.8c and 3.5g exclude material submitted for prepublication review from classification challenges and mandatory declassification review.

This one is actually quite concerning. Remember that a lot of Bush’s most secret–arguably illegal–programs (like his torture program, his domestic surveillance program, and his assassination program) may have had aspects that were SAPs. Letting DHS and DOJ institute them seems to increase the risk of domestic SAPs.

Also, while I could be misreading this, but this passage would seem to explicitly prevent someone–oh, say, the Vice President–from declassifying a CIA officer’s identity without either the assent of the CIA Director Read more →

Politico’s VandeHei and Allen Join the “Judy Miller Club for Cheney Stenographers”

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graphic: ImageChef.com

graphic: ImageChef.com

Suppose you had a 90-minute interview with Dick Cheney just after a Senate report came out concluding–among other things–that,

After bin Laden’s escape, some military and intelligence analysts and the press criticized the Pentagon’s failure to mount a full-scale attack despite the tough rhetoric by President Bush. Franks, Vice President Dick Cheney and others defended the decision, arguing that the intelligence was inconclusive about the Al Qaeda leader’s location. But the review of existing literature, unclassified government records and interviews with central participants underlying this report removes any lingering doubts and makes it clear that Osama bin Laden was within our grasp at Tora Bora.

Don’t you think you’d ask him, explicitly, why he had defended the decision not to send US troops after Osama bin Laden at Tora Bora when it was clear that the decision had allowed bin Laden to escape? “Mr. Cheney,” you might ask, “it has been shown pretty irrefutably that you let OBL get away. Why’d you defend your decision allowing him to escape when you knew it had led to his escape? Why did you ignore Henry Crumpton’s warning–briefed to you and President Bush personally at the end of November 2001–that an escape route to Pakistan was wide open and Afghan troops wouldn’t prevent OBL form escaping through it?”

But this is as close as Jim “Pool Boy” VandeHei and Mike Allen got in an interview with Cheney:

But Cheney rejected any suggestion that Obama had to decide on a new strategy for Afghanistan because the one employed by the previous administration failed.

Cheney was asked if he thinks the Bush administration bears any responsibility for the disintegration of Afghanistan because of the attention and resources that were diverted to Iraq. “I basically don’t,” he replied without elaborating.

I guess a follow-up question would have been too much to ask for from Pool Boy and his sidekick?

After apparently not asking such an obvious question, after getting stiffed on their more general question about Cheney and Bush’s diversion of resources to the Iraq War (I don’t suppose Pool Boy and friend have been watching the Iraq Inquiry in the UK, either, and I’m quite certain it’d be too much for them to ask about Cheney’s personal role fucking up our Pakistan policy in more recent years), they then serve as stenographers for yet another Cheney attack on Obama.

Somehow, VandeHei and Allen managed amazing feats of hunting mastery last week, but they couldn’t manage to ask glaringly obvious questions before then turning around and writing down every little thing Cheney told them to say.

And here’s another question.

It is just a remarkable coincidence that the day after John Harris invented this complaint,

Politicians of both parties have embraced the idea that this country — because of its power and/or the hand of Providence — should be a singular force in the world. It would be hugely unwelcome for Obama if the perception took root that he is comfortable with a relative decline in U.S. influence or position in the world.

On this score, the reviews of Obama’s recent Asia trip were harsh.

His peculiar bow to the emperor of Japan was symbolic. But his lots-of-velvet, not-much-iron approach to China had substantive implications.

On the left, the budding storyline is that Obama has retreated from human rights in the name of cynical realism. On the right, it is that he is more interested in being President of the World than President of the United States, a critique that will be heard more in December as he stops in Oslo to pick up his Nobel Prize and then in Copenhagen for an international summit on curbing greenhouse gases.

Cheney voiced precisely that complaint?

During the campaign, Cheney recalled, he saw Obama as “sort of a mainline, traditional Democrat — liberal, from the liberal wing of the party.” But Cheney said he is increasingly persuaded by the notion that Obama “doesn’t believe in American exceptionalism — the idea that the United States is a special nation, that we are the greatest, freest nation mankind has ever known.”

“When I see the way he operates, I am increasingly convinced that he’s not as committed to or as wedded to that concept as most of the presidents I’ve known, Republican or Democrat,” he said. “I am worried. And I find as I get out around the country, a lot of other people are worried, too.”

What a remarkable coinkydink, that the Pool Boy’s editor is the only other person in the country worried about Obama and exceptionalism.

The Politico Villagers Go Deer Hunting!

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elmer-fuddWell, this is exciting! Yesterday on Morning Joe on MSNBC, Mike Allen of Politico proudly announced that he, the managing editor at Politico, John Harris, and Politico executive editor Jim VanderHei all went on their first deer hunt Monday. And, according to Allen, they ALL bagged a large mammal from the Cervidae family.

In plain English, all three of these first time rookie deer hunters managed to take time off from chasing unnamed sources, get dressed, get out of town, track their prey, shoot and kill a real live deer. These are clearly some awesome American Sportsmen!

This would also mean they are such studs that they tracked and finalized the kill on each of the three deer, field cleaned their prey and transported the large carcasses out of the wilds, back to their vehicles, loaded and secured the bodies and drove out of the hunting fields. And they were all back safe and sound at home in time to get a night’s sleep and be in a studio at the crack of dawn to do Morning Joe! Astounding!

All it took was a few hours apparently. These guys must be damn good, because when I was younger, I used to deer hunt with three older men that were knock down dead eye pros, we went for 3-4 days at a time to open the season, and never had the kind of success that beginners Allen, VanderHei and Harris did in seemingly just a few short hours. My coonskin hat is off to all three of them; this is a truly impressive feat.

I am kind of shocked they didn’t run into Dick Cheney, kind of sounds like his type of “hunting” expedition. But, as Allen’s face did not have buckshot oozing from it, I guess not they did not encounter Deadeye Dick. I tried emailing and phoning the three intrepid hunters for more details of their safari, but they failed to return contact.

Fortunately, in an Emptywheel exclusive, we were able to obtain video of the grand hunt!

CIA Met with White House about How to Respond to Jane Harman’s Torture Warnings

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After being briefed on February 5, 2003 that the CIA had used waterboarding and intended to destroy tapes depicting that torture, Jane Harman wrote CIA General Counsel Scott Muller a letter raising concerns. Harman warned CIA they should not destroy the torture tapes, whether or not they constituted an official record.

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

And she asked directly whether President Bush had bought off on torture as a policy.

I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?

In his response to her, Muller basically ignored her warning about the torture tapes. And he gave her a very indirect answer to the question that–under the National Security Act–she should have been able to get a direct answer on, whether or not Bush had signed off on the torture.

While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

As it turns out, Scott Muller was not acting alone when he largely blew off Harman’s concern. Document 28 of the CIA’s Vaughn Index on the torture tape destruction reveals that CIA met with the White House about its response to Harman. (There’s also a one-page draft of the letter to Harman dated February 19.) The Vaughn Index describes the second email, which has the subject “Harmon Letter,” this way:

This is a one-page email, discussing a meeting between CIA and the White House regarding the CIA’s response to a congressional inquiry. The document also includes the draft text of a letter to Congress. This document contains information relating to the sources and methods of the CIA. The document also contains predecisional, deliberative information, CIA attorney work-product, and information provided by a CIA attorney to his client in connection with the provision of legal advice.

Thus, even though Harman’s letter and Muller’s response have been declassified, the CIA is claiming that we can’t know what Muller advised (himself? Bush? Tenet? Precisely who is the CIA General Counsel’s client, here?) about how to respond to Harman’s inquiry.

So we know that the White House weighed in on how to respond to Harman. We’re just not allowed to know how they weighed in.

How Dick Cheney Cowed Obama

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Mary has already linked to this article on how and why Greg Craig got thrown out in comments. But I wanted to make sure everyone read it. The short version of the timeline it describes is:

April 16: Obama releases the torture memos

April 17: Greg Craig moves to release Uighurs in US

April 20: Dick Cheney says mean things about Obama

Late April: A drop in Obama’s ratings on national security

April 23: Administration says it will release torture photos

April 24: Someone (!) leaks Craig’s plan on Uighurs to Congress

May 8: Obama flip-flops on torture photos

Mid-May: Obama flip-flops on military commissions and release of Uighurs

May 21: Obama’s Archive speech marks completion of national security flip-flop

In other words, after having made the right decision on the torture memos, the Obama Administration let Cheney beat them up over doing so. They did not respond publicly. Rather, they simply caved.

Precisely what Cheney wanted them to do.

I guess Dick Cheney is right–Obama can’t stand up to terrorists. Terrorists like Dick Cheney.

Bob Bauer and Scooter Libby Justice

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photo: Bob Bauer (PolicitalActivityLaw via Flickr)

photo: Bob Bauer (PolicitalActivityLaw via Flickr)

Glenn Greenwald has a post hitting on an op-ed Bob Bauer — Greg Craig’s replacement as White House Counsel — wrote supporting a pardon for Scooter Libby. (h/t BayStateLibrul) Glenn focuses on these passages…

Bush’s opposition has braced for a pardon and its rage at the prospect is building.  To Bush’s antagonists on left, a pardon would be only another act in the conspiracy — a further cover-up, a way of getting away with it. But this is the entirely wrong way of seeing things.  A pardon is just what Bush’s opponents should want. . . .Nothing in the nature of the pardon renders it inappropriate to these purposes. The issuance of a presidential pardon, not reserved for miscarriages of justice, has historically also served political functions — to redirect policy, to send a message, to associate the president with a cause or position. . . .

Libby is said to be unpardonable because the act of lying, a subversion of the legal process, cannot go unpunished. Yet this is mere glibness. . .

Now, as it happens, I didn’t write about this when it first came out. And to be honest, I’ve got mixed feelings about it. After all, Bauer did something that few people in DC were doing at the time–pointing to Bush’s own involvement in the leak of Plame’s identity.

A presidential pardon is finally an intervention by the President, his emergence from behind the thick curtain he has dropped between him and these momentous events involving his government, his policy, his Vice President. By pardoning Libby, he acknowledges that Libby is not really the one to confront the administration’s accusers. Now the president, the true party in interest, would confront them, which is what his opponents have demanded all along.

[snip]

But if the President pardons Libby, and by this act makes the case his own, he will have picked up a portion of the cost. Libby will fall back, restored to obscurity. Bush will step forward and take the lead role. He will have to explain himself; he will have to answer questions.

Even though I had already pointed to evidence showing Bush was involved–and may have even ordered OVP’s campaign against Joe Wilson in June 2003, when Bauer wrote this, almost no one would utter the possibility that Bush was somehow in the loop on the Plame outing. I think I remember being mildly grateful that someone would even point out that Bush ultimately bore responsibility for the Plame outing.

That said, I think Bauer was, on two counts, hopelessly naive. Read more →

FAA and NORAD Changed Records to Accord with Cheney Lies

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A senior Counsel for the 9/11 Commission, John Farmer, has written a book exposing the degree to which our response to 9/11 was disorganized and outdated–geared to respond to an attack from Russia rather than from terrorists. Most significantly, Farmer reveals that FAA and NORAD altered their chronologies of the day only after a briefing at the White House.

Perhaps nothing perturbs Farmer more than the contention that high-ranking officials responded quickly and effectively to the revelation that Qaeda attacks were taking place. Nothing, Farmer indicates, could be further from the truth: President George W. Bush and other officials were mostly irrelevant during the hijackings; instead, it was the ground-level commanders who made operational decisions in an ad hoc fashion.

[snip]

Yet both Deputy Defense Secretary Paul Wolfowitz and Vice President Dick Cheney, Farmer says, provided palpably false versions that touted the military’s readiness to shoot down United 93 before it could hit Washington. Planes were never in place to intercept it. By the time the Northeast Air Defense Sector had been informed of the hijacking, United 93 had already crashed. Farmer scrutinizes F.A.A. and Norad rec­ords to provide irrefragable evidence that a day after a Sept. 17 White House briefing, both agencies suddenly altered their chronologies to produce a coherent timeline and story that “fit together nicely with the account provided publicly by Deputy Defense Secretary Wolfowitz and Vice President Cheney.”

We’ve know for a long time that the FAA records, in particular, were politicized. Given already documented proof that Cheney lied to hide the fact that he violated the chain of command on 9/11 it’s not surprising that that politicization served Dick Cheney’s false narrative of leadership.

But we can add this book to the long list of proof that Cheney’s a big liar trying to hide his own incompetence.