White House Explicitly Approved Torture

Lest we forget the pure, unadulterated lust for power and disregard for human rights and the Constitution that marks the Bush Administration:
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.
They retroactively provided cover for the CIA's torture of detainees, which the CIA knew damn well was illegal.

I deliberately stayed away from the word "evil" in my opening sentence, though I was sorely tempted. But classing these clowns as "evil" just puts them in a category separate from the rest of humanity, and makes their behavior and attitudes something exceptional and therefore easily dismissed.

It's not, though. This is human behavior, and as disgusting as it is, we have to accept that our leaders (and ourselves) are capable of it, and to not shrink from the duty of guarding against these baser impulses becoming acceptable. They way they got away with it was to keep the populace whipped up into a state of fear, because they knew that if the people were afraid, they'd be willing to hand over not only their own rights, but far more eagerly the rights of others.

What's really interesting about this is that the CIA pushed for these memos so that they weren't left holding the bag:
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.

The memos were the first -- and, for years, the only -- tangible expressions of the administration's consent for the CIA's use of harsh measures to extract information from captured al-Qaeda leaders, the sources said. 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 concerns grew more pronounced after the revelations of mistreatment of detainees at the Abu Ghraib prison in Iraq, and further still as tensions grew between the administration and its intelligence advisers over the conduct of the Iraq war.

"It came up in the daily meetings. We heard it from our field officers," said a former senior intelligence official familiar with the events. "We were already worried that we" were going to be blamed.

A. John Radsan, a lawyer in the CIA general counsel's office until 2004, remembered the discussions but did not personally view the memos the agency received in response to its concerns. "The question was whether we had enough 'top cover,' " Radsan said.

Tenet first pressed the White House for written approval in June 2003, during a meeting with members of the National Security Council, including Rice, the officials said. Days later, he got what he wanted: a brief memo conveying the administration's approval for the CIA's interrogation methods, the officials said.
So, the Bush Administration approves the torture but doesn't want to stand by its decision by providing a memo giving the CIA cover. And while the CIA is more than happy to have the permission, it knows which way the wind is blowing, and wants to make sure that it can hang the Administration if it gets caught. You know what that tells me? That tells me that everyone involved in this process knew damn well that this was torture, that it was illegal, that there was no good-faith justification for it. And then they went out and lied about what was going on:
As recently as last month, the administration had never publicly acknowledged that its policymakers knew about the specific techniques, such as waterboarding, that the agency used against high-ranking terrorism suspects. In her unprecedented account to lawmakers last month, Rice, now secretary of state, portrayed the White House as initially uneasy about a controversial CIA plan for interrogating top al-Qaeda suspects.

After learning about waterboarding and similar tactics in early 2002, several White House officials questioned whether such harsh measures were "effective and necessary . . . and lawful," Rice said. Her concerns led to an investigation by the Justice Department's criminal division into whether the techniques were legal.
Not that the Administration ever showed any hesitation in private:
But whatever misgivings existed that spring were apparently overcome. Former and current CIA officials say no such reservations were voiced in their presence.

In interviews, the officials recounted a series of private briefings about the program with members of the administration's security team, including Rice and Cheney, followed by more formal meetings before a larger group including then-Attorney General John D. Ashcroft, then-White House counsel Alberto R. Gonzales and then-Defense Secretary Donald H. Rumsfeld. None of the officials recalled President Bush being present at any of the discussions.
The CIA finally won, however, and got the White House to provide written memos authorizing the use of these torture methods (I'm sure they used "interrogation methods," but I think we all know that waterboarding has been considered torture for a very long time and won't let their twisting of semantics get in the way of our understanding).

For those of you who are unfamiliar with legal memoranda, let me just explain the process a bit. This isn't like the policy or procedure memos you might be familiar with from management where you work. These are memoranda written in support of one legal theory or another, with citations to the law and the facts, and argument to support your position. You start with the question presented, which usually has to do with your client's position, both legal and factual. Then you answer that question, first by laying out the facts, then by laying out the relevant law, then by applying the law to the facts in the argument section and coming to your conclusion. Obviously, you want to find an argument that supports your client's position and that will stand a chance of convincing a judge that your client deserves to win, or that your client is in the right, or that your client is justified in some course of action.

Oh, and did I mention that these documents are protected from discovery because they're either the work product of the attorneys or, if they're sent to the client, they're attorney-client communications?

So for the White House lawyers*, they'd have been handed the assignment of finding justification for the policy that had already been approved, though its outlines were not specific:
The CIA's anxiety was partly fueled by the lack of explicit presidential authorization for the interrogation program. A secret White House "memorandum of notification" signed by Bush on Sept. 15, 2001, gave the agency broad authority to wage war against al-Qaeda, including killing and capturing its members. But it did not spell out how captives should be handled during interrogation.
It's not entirely clear from the article, but it appears that the CIA took this to mean that they would be better off asking for forgiveness than permission when it came to torture, and that by going ahead and doing it under a broad and fuzzy grant of Presidential authority, the WH had no choice but to find a legal justification for it or admit that the CIA was a rogue.

But what do you do if you're a lawyer and you're handed an assignment like this? If it were me, I would have either refused the assignment or quit, since as far as I'm concerned, there is no good-faith basis for this position. And I have to wonder if anyone did -- they would have been bound by attorney-client privilege not to discuss why they did, so it wouldn't be known. But Alberto Gonzalez was running the show at the time at the White House Counsel's Office, so he may very well have hired attorneys who had a similar outlook on the law and on loyalty to Bush as he did.

If you don't quit, then you start doing your research. And if you're trying to justify torture, you quickly run into a problem, which is that torture is illegal. So you're left with no other option, if you're determined to rationalize your client's position, than to either redefine the activity to somehow make it not-torture, or to redefine the circumstances to justify torture. While the Post does not have the actual memos, it's pretty apparent, when you hear the Administration using such Orwellian terms as "enhanced interrogation techniques" or defining torture as involving complete organ failure, which route they traveled.

As a lawyer, it really makes me ill to think of these attorneys doing this, day after day after day (it can take a long time to do the research and get the drafting right), passing drafts around and making edits, all while they knew that real live people were being waterboarded and that their work would be held up to justify that.

It is no small consolation to my sense of professional ethics that the people who sounded the alarm about Guantanamo Bay were military attorneys, and that civilian attorneys have donated time and skill to defending those prisoners. And surely, the blame goes squarely on the Bush Administration, including Georges Bush and Tenet, for even making that necessary.

I don't know how any of these people sleep at night.
* We already knew about the torture memos written by John Yoo. But he was an employee of the Justice Department, at the Office of Legal Counsel, which advises the Attorney General in his role as a legal adviser to the president. The memos under discussion here were drafted by lawyers in the White House; Alberto "Torquemada" Gonzalez was White House Counsel from 2001 to 2005, while these memos were drafted. Interestingly, the Justice Department was the branch which was most resistant to having the White House put anything in writing, according to the WaPo.

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