Legal Scholars Criticize Torture Memos notes a general consensus among expert readers that the Torture Memos were so one-sided as to be incompetent, misstated basic concepts of criminal law, and misread our international obligations.
But don't worry, one of the lead authors is a court of appeals judge, and all the others still have their jobs! (At least until January.)
If you want to know what I sound like, you can hear a Real Audio or MP3 of an interview on CounterSpin: The Radio Show of Fairness. The show is also being broadcast on 130+ stations around the country at various times in the next week. (Update: more stations.) The family can hear it on WPFW / 89.3 FM next Thurs. at 11:00 am. Alas, there's no station playing it here in Miami…
Guess what really prompted this: CNN.com – Cheney curses senator over Halliburton criticism. (The curse was what kids call the 'F-word'.)
A) Cheney has seen latest GOP tracking polls and things look bleak. (Maybe like this)
B) Ill health.
C) Plame investigation heats up is about to result indictments of Cheney aide or aides.
D) Aides in Plame investigation not as loyal as hoped.
E) Boss is auditioning a replacement after impending resignation for ill health.
F) Senator Leahy is on to something.
G) Cheney always talks like that, but in the undisclosed location there's no one to tell the press.
Update: There were so many typos in this one, it reminded me why I don't offer bounties
Joho at Hyperorg has the full text of Al Gore's latest speech. It's a wow.
The Supreme Court held today in Cheney v. U.S. District Court that the Court of Appeals erred when it said the Vice President Cheney had to either assert executive privilege or cough up documents about his meetings with energy lobbyists. Those are the meetings in which, it is widely believed, he and the lobbyists drew up US energy policies — and may even have discussed the disposition of Iraq's oil, many months before even 9/11, much less the administration's public talk of any invasion. The case produced an unusual constellation of coalitions and opinions:
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, and Breyer, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Parts I, II, III, and IV. Stevens, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Scalia, J., joined. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined.
No matter what happens next, any disclosures will happen after the election. In that sense, it's a big win for Cheney.
In the long run, though, the most significant part of this ruling may be somethng more announced than justified in this decision: the almost automatic equation, with no real explanation as to why, of the Vice President's prerogatives in civil litigation with the President's. It's long been agreed that, as Chief Justice Marshall once put it (while sitting as a trial judge), “In no case … would a court be required to proceed against the president as against an ordinary individual.” Today, the Supreme Court held that in civil as opposed to criminal cases, courts should in effect bend over backwards to be as solicitous of the Vice President's need for confidentiality and freedom of action as for the President. I leaned a little to the view that the Veep should be treated for this purpose as just another top aide, but thought there were valid arguments on both sides. It was an open issue—but not any more.
One objective of the Bush Administration's modified limited hangout on the Torture Memos and the accompanying partial data dump, has been to sell the voter, and the chattering classes, the story that while some lower-down officials were having philosophical discussions about torture, none of this was ever reflected in the actual orders given by higher ups.
There are a large number of reasons to be more than a little wary about this spin on the story.
First, there are the obvious gaps in the story provided by the Administration — less and less information about the orders given by higher-ups as we get closer to the present day, the period in which administration desperation about events in Iraq could only have increased.
Second, there is the absence of any information about the instructions to the CIA at any time.
Third, there is the bureaucratic reality that the vast number of memos and working groups were not the result of spontaneous organizational combustion. People very close to the top asked for those. We know Rumsfeld and Gonzales did; we don't know how much they consulted with their boss, and he's having memory problems on the subject of torture.
Fourth, we know that the proponents of torture were not just philosophizing, or casting about for policy options, or presenting balanced options to their bosses, but rather were so intent on getting their way that they ruthlessly cut their bureaucratic opponents out of the loop.
According to today's Washington Post, in January 2002, the State Department Legal Advisor — one of the higher ranking lawyers in government, and traditionally an authoritative interpreter of existing treaties within the executive branch — opined that the Justice Department approach to the torture issue and to the Geneva Conventions was
“seriously flawed” and its reasoning was “incorrect as well as incomplete.” Justice's arguments were “contrary to the official position of the United States, the United Nations and all other states that have considered the issue,” Taft said.
That letter somehow didn't get into this week's data dump. Nor did the reaction from Justice and Defense: they started trying to exclude the weak-livered folk from State from meeetings.
One result of the rancorous debate, according to participants, was that Yoo, Attorney General John D. Ashcroft and senior civilians at the Pentagon no longer sought to include the State Department or the Joint Staff in deliberations about the precise protections afforded to detainees by the Geneva Conventions.
For example, the officials said, a 50-page Justice Department memo in August 2002 about the meaning of various anti-torture laws and treaties was not discussed or shared with the Joint Chiefs or the State Department. It was drafted by Justice for the CIA and sent directly to the White House.
(I happened to be talking to a mid-level foreign service officer, who is not a lawyer, last week and he expressed his disgust that the US government had, for the first time, interpreted treaties without even consulting the state department.)
These actions are consistent with a picture of an administration that sought a way to use, and intended to use, violence to question people. It is not airtight proof, and one hopes they pulled back from the brink…but at the very least there are many questions left to answered.
Jotwell Blenderlaw