The XX Factor: What women really think.

I Feel For Cheney

I never thought I'd write this sentence, but poor Dick Cheney. Last week's disclosure of the torture memos he fought to keep secret has forced him into the extremely uncharacteristic position of calling for more disclosure:

...they put out the legal memos, the memos that the CIA got from the Office of Legal Counsel, but they didn't put out the memos that showed the success of the effort. And there are reports that show specifically what we gained as a result of this activity. They have not been declassified. I formally asked that they be declassified now.

Ah, secrets—if only Cheney had thought of declassifying these reports when he had the power to do it himself! It almost makes you wish he was vice president again, doesn't it?

Meanwhile, Jane Mayer reports at the New Yorker that the Senate Armed Services Committee's unredacted report (pdf), released Tuesday by Sen. Levin, shows that the CIA used torture before the first Bybee memo granted approval on August 1, 2002. Like I said the other day, I don't think prosecuting CIA agents for what they did in the months after 9/11 is the best way to go. But this kind of evidence of law-breaking could be hard for Eric Holder to ignore.

Then there's this from Dafna Linzer at ProPublica: dozens of former CIA prisoners have gone missing.
 

Maybe the Torture Memo Authors Shouldn't Go to Europe Right Now

Kerry, you're exactly right. The "ticking bomb" torture scenario is a fairy tale. That justification for torture assumes that my government—or any government—can be as omniscient as Jack Bauer's screenwriters. How very convenient to imagine that the government would somehow know all about a plot, including when the bomb will go off and who has the code to turn it off! Why am I ever supposed to trust the rulers of any country—Russia, Iran, Morocco, or the U.S.—to know, with 100 percent certainty, that they've arrested exactly the right person?

Meanwhile, it looks like the people behind the torture memos (which did not, as Emily noted, result in information about a ticking bomb or any other plots), will be investigated—whether here or in Europe.

Spanish judge Baltasar Garzon is known for attempting to extradite Pinochet from London for trial in Madrid ... and also for presciently indicting Osama Bin Laden and 34 other al-Qaida operatives in 2003. Unlike Gitmo's torture, Garzon's indictment actually led to long prison sentences, according to the BBC, for 18 people—including one person convicted for helping to plot the 9/11 attacks.

Now Judge Garzon has given the go-ahead to a criminal investigation of the Bush administration team behind the torture memos. Reuters says that the six indicted include "William Haynes II, former general counsel for the Department of Defense; John Yoo, the former Justice Department lawyer who wrote secret legal opinions saying President George W. Bush had the authority to circumvent the Geneva Conventions; Douglas Feith, former undersecretary of defense for policy; Jay Bybee, Yoo's former boss at the Justice Department's Office of Legal Counsel; and David Addington, chief of staff and legal adviser to ex-Vice President Dick Cheney." Can Bush and Cheney be far behind?

Obama: Holder's Call

Could the Bush administration lawyers who wrote the torture memos really be on the hook, as I suggested Monday (and plenty of their critics have longed for)? President Obama left that door surprisingly ajar today. From his press conference:

With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that.  I think that there are a host of very complicated issues involved there.

The End of the Necessity Defense

The only way to understand how the Bush administration could have waterboarded two detainees 266 times is to go back to footnote 27 of this 2005 torture memo, which Scott Shane pointed to in the New York Times. It discusses the “unnecessary use of enhanced” interrogation techniques—unnecessary because “although the on-scene interrogation team judged Zubaydah to be compliant elements within the CIA Headquarters still believed he was withholding information.”

The memo only admits to one instance of that kind of break between the agents on the scene and HQ. But since we know that detainee Abu Zubaydah--83 waterboardings in August 2002, right after an earlier torture memo gave permission--gave up his most useful information in the weeks after he was captured, before or possibly immediately after the torture began. And so that "unnecessary" line stands for a much larger disturbing truth: The people ordering the torture didn’t care about how much pain they inflicted for how little gain. Efficacy, humanity—all of this became beside the point. The Bush administration wasn’t really standing on the ground that torture was a terrible means to the virtuous end of saving lives, as it so often claimed. There simply was no necessity defense.

That footnote also demonstrates why if we’re going to investigate or prosecute anyone, it shouldn’t be the agents on the scene. In the wake of Obama’s carefully crafted statement fending off prosecution for anyone who relied in good-faith on the DoJ memos, some commentators have called for looking into whether CIA agents could go down for torturing before the memos were written in August 2002. This seems wrong to me. If we went that route, we’d get around version of Abu Ghraib: a few low-level scapegoats standing in for their far more culpable superiors. Much more interesting is another possibility Obama left open: going after the lawyers who wrote the memos and the officials who demanded and approved them—David Addington, Alberto Gonzales, Jim Haynes. Rahm Emanuel told George Stephanopoulos on Sunday that Obama believes that “those who devised policy… should not be prosecuted either." But what about disbarment? And impeachment for Jay Bybee, the torture memo author who got life tenure on the 9^th Circuit? It would be a start. If you think these memos are good lawyering, then you don’t deserve to be a lawyer. That’s a lesson the bar should desperately want to impart.

The Right Takes Aim at Obama's Lawyers

Are the Republicans lining up for their first Obama filibuster? Dawn Johnsen, the president's pick to head the Office of Legal Counsel in the Justice Department, was supposed to come up for a confirmation vote in the Senate today. Instead, as Scott Horton alerts us, the vote was put on hold. This comes after every Republican on the Senate judiciary committee voted against her, except for Arlen Specter, who abstained. The Office of Legal Counsel is the sensitive branch of DoJ that advises the president on what's legal and what's not--past home to John Yoo, Jay Bybee, and the infamous Bush torture memos. What's at issue in Dawn's nomination—disclosure: She is a former Slate contributor and a friend—is her opposition to that past record and her determination to change it. If the right is going to go after her as they have, then the Obama administration and the left will have to step up in her defense. The NYT ran an editorial supporting her last week; now that seems like the opening drum roll in what will be a longer campaign.

Meanwhile, similar opponents seem to be testing the waters on going after Harold Koh, nominated to be Hillary Clinton's chief legal adviser in the State Department. Disclosure on this one, too: I have a fellowship at Yale Law School this year, where Harold was the dean until he went to D.C. last week for this appointment. The opening salvo against Harold is an attack by former Bush speech writer Meghan Clyne in the New York Post that's full of wild-eyed distortion. Perhaps the silliest but also sensational claim—and thus the one that Clyne leads with—is that Harold thinks that "sharia law could apply to disputes in U.S. courts." This supposedly comes from what one lawyer thinks he heard Dean Koh say to the Yale Club of Greenwich in 2007. Honestly, this is the best they can come up with—one guy's account of Islamic takeover after drinks and golf? Let's get behind these lawyers, Obama and the left, and stop the trouble before it really starts.