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By Jason Leopold
March 24, 2009
In 2005, after pushing out the Justice Department lawyer who had overturned President George W. Bush’s claimed authority to abuse “war on terror” prisoners, his administration reinstated key elements of the memos granting Bush virtually unlimited powers over the detainees, according to a list of still-secret documents.
I obtained the list of legal memos about Bush’s “enhanced interrogation techniques” from the ACLU, and the Obama administration is expected to declassify and release three of them from May 2005, which reasserted Bush’s authority, Newsweek reported over the weekend.
According to Newsweek, one senior Obama administration official, who spoke on condition of anonymity, described the memos as “ugly.”
Steven Bradbury, who headed the Justice Department's Office of Legal Counsel during Bush’s second term, signed the May 2005 memos to reverse efforts led by former Assistant Attorney General Jack Goldsmith in 2003 and 2004 to scrap earlier OLC memos asserting Bush’s powers.
Senior Bush administration officials were furious at the attempts by Goldsmith, who with the support of then-Deputy Attorney General James Comey, knocked down memos by previous OLC lawyers John Yoo and Jay Bybee.
Yoo and Bybee had worked closely with the White House to create legal arguments for Bush to claim his Commander-in-Chief power essentially let him operate beyond the law.
In the May 2005 memos, Bradbury reinstated key elements of the Yoo-Bybee memos – and reportedly even expanded on some – clearing the way for additional use of “enhanced interrogation techniques” against detainees.
The chronology of events – the White House collaborating with Yoo and Bybee to develop the memos after 9/11, Goldsmith and Comey then challenging them before being driven from their jobs, and Bradbury reviving the Yoo-Bybee arguments – provides further evidence that the Bush administration politicized the OLC’s traditional role of giving objective legal advice regarding the limits of presidential power.
In effect, Bush and his team appear to have “lawyer-shopped” for Justice Department officials who would give them legal cover to engage in torture and other actions that violated U.S. laws, international treaties and the U.S. Constitution.
One memo signed by Bradbury on May 10, 2005, largely restored the infamous Yoo-Bybee “torture memo” of August 2002 which spelled out what techniques CIA interrogators could use against prisoners.
The "torture memo," along with others drafted by Yoo and signed by Bybee, was withdrawn by Goldsmith after he took over the OLC in October 2003. In his 2007 book, The Terror Presidency, Goldsmith described the August 2002 memo as "legally flawed" and "sloppily reasoned."
In his book, Goldsmith recounted his collaboration with Comey, an experienced federal prosecutor, in trying to restore some integrity to the legal advice under which the Bush administration had operated after the 9/11 attacks.
“Ever since Comey had come on board in December of 2003, he had been my most powerful ally … in correcting the flawed interrogation opinions,” Goldsmith wrote. “He always acted with a sensitivity to upholding the integrity of the Justice Department.”
As Goldsmith struck down key Yoo-Bybee opinions, he and Comey encountered angry resistance and even ridicule from Bush insiders, particularly David Addington, the legal adviser to Vice President Dick Cheney.
Goldsmith described one White House meeting at which Addington pulled out a 3-by-5-inch card listing the OLC opinions that Goldsmith had withdrawn.
“Since you’ve withdrawn so many legal opinions that the President and others have been relying on,” Addington said with sarcasm in his voice, “we need you to go through all of OLC’s opinions and let us know which ones you will stand by.”
So, after nine contentious months at the OLC, a battered Goldsmith quit, accepting a tenured position at Harvard Law School.
Comey wasn’t far behind. Comey offended the White House, too, by resisting its warrantless surveillance program of Americans in March 2004.
That battle over the warrantless wiretaps reportedly earned Comey the derisive nickname from Bush as “Cuomey” or just “Cuomo,” a strong insult from Republicans who deemed former New York Gov. Mario Cuomo to be excessively liberal and famously indecisive.
Comey previously had been a well-respected Republican lawyer who was credited with prosecuting key terrorism cases including the Khobar Towers bombing which killed 19 U.S. servicemen in 1996.
Comey also wore out his White House welcome by picking Patrick Fitzgerald to be special prosecutor to investigate who leaked the identity of covert CIA officer Valerie Plame after her husband, former Ambassador Joseph Wilson, criticized Bush’s misuse of intelligence on Iraq.
In 2003, when Attorney General John Ashcroft was still handling the investigation, Bush expressed confidence that the leakers would never be identified. But Ashcroft stepped aside because of conflicts of interest and his deputy, Comey, selected U.S. Attorney Fitzgerald, who proved himself to be a more dogged investigator, eventually tracking the anti-Wilson campaign to the highest levels of the White House.
Restoring Bush’s Powers
After Goldsmith departed in summer 2004 and was replaced on an acting basis by Bradbury in 2005, Comey fought a rear-guard action against the restoration of the Yoo-Bybee views on sweeping presidential powers, but lost.
On May 10, 2005, Bradbury expanded those powers even more, according to a New York Time article published Oct. 4, 2007 and citing government officials.
"The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures," the Times said.
Then-Attorney General Alberto "Gonzales approved the legal memorandum on ‘combined effects’ over the objections of … Comey, … who was leaving his job after bruising clashes with the White House,” the Times reported. “Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be ‘ashamed’ when the world eventually learned of it."
The list of documents that I obtained from the ACLU identified the subject of that Bradbury memo as “Authorized Interrogation Techniques.”
Another May 10, 2005, memo drafted by Bradbury discussed “whether CIA interrogation methods violate the cruel, inhuman and degrading treatment standard under federal and international law.” The legal opinion “reportedly concludes that past and present CIA interrogation methods do not constitute cruel, inhuman and degrading treatment,” according to the ACLU.
The May 30, 2005, memo by Bradbury addressed the “use of enhanced interrogation techniques by the CIA.” The ACLU was unable to obtain a further description of that Bradbury memorandum.
On Aug. 15, 2005, in his farewell speech, Comey urged his colleagues to defend the integrity and honesty of the Justice Department.
“I expect that you will appreciate and protect an amazing gift you have received as an employee of the Department of Justice,” Comey said. “It is a gift you may not notice until the first time you stand up and identify yourself as an employee of the Department of Justice and say something – whether in a courtroom, a conference room or a cocktail party – and find that total strangers believe what you say next.
“That gift – the gift that makes possible so much of the good we accomplish – is a reservoir of trust and credibility, a reservoir built for us, and filled for us, by those who went before – most of whom we never knew. They were people who made sacrifices and kept promises to build that reservoir of trust.
“Our obligation – as the recipients of that great gift – is to protect that reservoir, to pass it to those who follow, those who may never know us, as full as we got it. The problem with reservoirs is that it takes tremendous time and effort to fill them, but one hole in a dam can drain them.
“The protection of that reservoir requires vigilance, an unerring commitment to truth, and a recognition that the actions of one may affect the priceless gift that benefits all. I have tried my absolute best – in matters big and small – to protect that reservoir and inspire others to protect it.”
The Yoo-Bybee and Bradbury memos were the subject of a four-year-long internal investigation conducted by Justice Department’s internal watchdog agencies. The probe centered on whether Yoo, Bybee and Bradbury provided the White House with poor legal advice and violated "professional standards" in interpreting the Constitution.
The probe was completed last year and is said to be highly critical of Yoo, Bybee and Bradbury's legal work in this area. The report, however, remains classified.
Before leaving the vice presidency, Cheney acknowledged that he personally “signed off” on the waterboarding of al-Qaeda suspect Abu Zubaydah and two other alleged terrorist detainees and personally approved brutal interrogations of 33 others.
“I was aware of the program, certainly, and involved in helping get the process cleared, as the [Central Intelligence] Agency, in effect, came in and wanted to know what they could and couldn't do,” Cheney said in an interview last December with ABC News. “And they talked to me, as well as others, to explain what they wanted to do. And I supported it.”
In a Jan. 22 executive order, President Obama outlawed the use of such aggressive interrogation tactics. As such, the administration concluded there was no longer a valid reason to continue to classify the Bradbury memos, Newsweek reported.
Newsweek reported that former CIA Director Michael Hayden was "furious" that the Yoo-Bybee/Bradbury memos were to be released and tried to thwart plans to declassify the memos by intervening directly with the Obama administration.
Apparently, the White House has sided with Attorney General Eric Holder, who is said to have made the case for releasing the documents.
"Faced with a court deadline in a Freedom of Information Act lawsuit regarding the memos filed by the ACLU, Justice lawyers asked for a two-week extension because the memoranda are being reviewed for possible release," Newsweek reported.
Sen. Dianne Feinstein, the chair of the Intelligence Committee, announced earlier this month that her committee will conduct a year-long secret investigation into the CIA’s “enhanced interrogation” and detention practices and whether the methods resulted in actionable intelligence as Bush administration officials have maintained.
The California Democrat also responded to excerpts of a secret report prepared by the International Committee of the Red Cross that concluded the abuse of 14 “high-value” detainees whom the ICRC interviewed “constituted torture.”
“In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment,” according to the ICRC report, a copy of which was obtained by journalist Mark Danner who published excerpts in The New York Review of Books.
Since the ICRC’s responsibilities involve ensuring compliance with the Geneva Conventions and supervising the treatment of prisoners of war, the organization’s findings carry legal weight.
Feinstein told Newsweek, "I now know we were not fully and completely briefed on the CIA program.”
CIA Director Leon Panetta has said he does not support any inquiry that would lead to the prosecution of CIA personnel who carried out the interrogations.
Panetta told agency employees in a letter March 16 that he has been “assured” that the Senate Intelligence Committee's goal “is to draw lessons for future policy decisions, not to punish those who followed guidance from the Department of Justice. That is only fair.”
But the imminent release of the May 2005 memos will no doubt lead to further calls for investigations and prosecutions of Bush officials who signed off on and approved the torture of prisoners.
The ACLU called on Attorney General Holder last Wednesday to appoint a special prosecutor to launch a probe into the Bush administration's torture practices.
“The fact that such crimes have been committed can no longer be doubted or debated, nor can the need for an independent prosecutor be ignored by a new Justice Department committed to restoring the rule of law,” ACLU Executive Director Anthony Romero said.
“Given the increasing evidence of deliberate and widespread use of torture and abuse, and that such conduct was the predictable result of policy changes made at the highest levels of government, an independent prosecutor is clearly in the public interest,” Romero said.
Bybee is now a 9th Circuit Appeals Court judge in San Francisco. Yoo is a visiting law professor at Chapman University in Orange, California.
Jason Leopold has launched his own Web site, The Public Record, at here