Cheney's Desperate Defense

By Dan Froomkin
3:00 PM ET, 05/22/2009

Cheney at AEI. (AP Photo/Luis M. Alvarez)

Former vice president Dick Cheney's snarling, duplicitous speech contrasting Bush and Obama administration counter-terrorism policies yesterday is best seen in the context of his understandably strong desire to avoid investigation or prosecution in the near future -- and ignominy in the history books.

While his speech is primarily being touted as a ferocious attack on President Obama -- and it certainly was that -- what Cheney is really doing is playing defense.

Running through his remarks were several familiar themes: That investigating what really happened during the past eight years is tantamount to prosecution, that criminalizing political behavior would be a terrible precedent, and that the Bush administration had absolutely nothing to do with the kind of abuse illustrated by the notorious photographs from Abu Ghraib prison.

That final point is really key. For five years, ever since the photos became public, Bush officials have been engaged in a concerted disinformation campaign aimed at denying that White House policy was in any way responsible for the widespread abuse of detainees.

I describe new evidence of that disinformation campaign in an article on NiemanWatchdog.org today. One of the torture memos released last month proves how baldly then-White House counsel Alberto Gonzales was lying in June 2004, as he tried to distance the administration from what happened at Abu Ghraib.

The latest iteration of the campaign has been Cheney's relentless focus on debating the appropriateness and efficacy of the techniques used on "high-value" detainees at CIA secret prisons. Cheney realizes that even if he loses this argument, as far as the American public is concerned, it's a close call.

To avoid more scrutiny, it's essential that he keep distancing the administration from the kind of abuse that is universally considered indefensible.

Indeed, Cheney said yesterday: "In public discussion of these matters, there has been a strange and sometimes willful attempt to conflate what happened at Abu Ghraib prison with the top secret program of enhanced interrogations. At Abu Ghraib, a few sadistic prison guards abused inmates in violation of American law, military regulations, and simple decency. For the harm they did, to Iraqi prisoners and to America's cause, they deserved and received Army justice. And it takes a deeply unfair cast of mind to equate the disgraces of Abu Ghraib with the lawful, skillful, and entirely honorable work of CIA personnel trained to deal with a few malevolent men."

The campaign has been so effective that there's only been limited public awareness of the mounting evidence -- including a bipartisan report from the Senate Armed Service Committee -- definitively linking decisions made by Bush and Cheney not just to the torture at the CIA's hands, but to the pervasive, inhumane treatment of detainees – many of whom were utterly innocent -- at prison facilities such as Abu Ghraib, Bagram, and Guantanamo.

The photographs that Obama recently decided not to release would have called renewed attention to the pervasiveness of abuse -- one reason Cheney was obviously delighted with that decision. (He called it "wise" yesterday.)

But even more so, the truth would come out in a thorough official investigation -- which is why Cheney is so opposed to one. He spoke contemptuously yesterday of a "so-called 'Truth Commission.'"

One other thing about Cheney's speech: He has yet to offer up any verifiable evidence that even a single life was saved through any of the administration's extreme tactics, including torture and warrantless surveillance. Nevertheless, he insisted yesterday that the "intelligence officers who questioned the terrorists can be proud of their work and proud of the results, because they prevented the violent death of thousands, if not hundreds of thousands, of innocent people."

Hundreds of thousands? Is Cheney now explicitly suggesting that torture averted a nuclear attack? That would be a first, even for him. Call it the return of the imaginary mushroom cloud.

Here's how you cover Cheney! Jonathan S. Landay and Warren P. Strobel write for McClatchy Newspapers: "Former Vice President Dick Cheney's defense Thursday of the Bush administration's policies for interrogating suspected terrorists contained omissions, exaggerations and misstatements."

Among them: "Cheney said that 'the key to any strategy is accurate intelligence,' but the Bush administration ignored warnings from experts in the CIA, the Defense Intelligence Agency, the State Department, the Department of Energy and other agencies, and used false or exaggerated intelligence supplied by Iraqi exile groups and others to help make its case for the 2003 invasion."

And "Cheney said that only 'ruthless enemies of this country' were detained by U.S. operatives overseas and taken to secret U.S. prisons.

"A 2008 McClatchy investigation, however, found that the vast majority of Guantanamo detainees captured in 2001 and 2002 in Afghanistan and Pakistan were innocent citizens or low-level fighters of little intelligence value who were turned over to American officials for money or because of personal or political rivalries.

"In addition, German Chancellor Angela Merkel said on Oct. 5, 2005, that the Bush administration had admitted to her that it had mistakenly abducted a German citizen, Khaled Masri, from Macedonia in January 2004.

"Masri reportedly was flown to a secret prison in Afghanistan, where he allegedly was abused while being interrogated. He was released in May 2004 and dumped on a remote road in Albania.

"In January 2007, the German government issued arrest warrants for 13 alleged CIA operatives on charges of kidnapping Masri."

Fred Kaplan writes for Slate that Cheney "built a case on straw men, red herrings, and lies."

For example: "Cheney ... dismissed the idea—hardly Obama's alone—that the interrogation policies and the detention operations at Guantanamo have served as a 'recruitment tool' for al-Qaida and other terrorists. This claim, he said, 'excuses the violent and blames America for the evil that others do. It's another version of that same old refrain from the Left: We brought it on ourselves.'

"This is nonsense on a few levels. Nobody is claiming that Osama Bin Laden and his crew would go away if we treated prisoners more nicely. However, it is indisputable that the reports of torture, the photos from Abu Ghraib, and the legal limbo at Guantanamo have galvanized al-Qaida's recruitment campaigns. Everyone acknowledges this, hardly just 'the Left.' It's why many Republicans lamented the news stories and the photographs—because they might help the enemy."

Joe Klein writes for Time: "From the very first--the notion that those who oppose his policies saw 9/11 as a 'one-off'--Cheney proceeded to mischaracterize, oversimplify and distort the views of those who saw his policies as extreme and unconstitutional, to say nothing of the views of the current Administration. This is the habit of demagogues. Cheney's snarling performance was revelatory and valuable: it showed exactly the sort of man Cheney is, and the sort of advice he gave, when his location was disclosed. I hope he continues to speak out. We need his voice to remind us what we've happily escaped."

Joe Conason writes for Salon: "Beyond the distortions and the lies, there was one passage in Cheney's speech that underlined the authoritarian character of the former vice president and his hosts. Not only must we not reverse the policies of the previous administration, but according to him, we should not even debate them -- because the merest discussion of the troubling issues raised by the war on terrorism only encourages the enemy."

Dana Milbank writes in The Washington Post: "It was not Cheney's logic but his prodigious anger that was on display yesterday....

"Cheney used the word 'attack' 19 times, 'danger' and 'threat' six times apiece, and 9/11 an impressive 27 times. It was as if all the angry thoughts edited out of his speeches by Bush aides over eight years were finally free to tumble forth. He railed about 'contrived indignation and phony moralizing' among Democrats and a stance that 'blames America.'"

Michael Tomasky
writes in the Guardian: "Let's cut to the chase: If, God forbid, there is another terrorist attack on America, Cheney has with this speech ensured that rather than uniting behind the sitting administration – as conservatives insisted we all must do eight years ago – this country will be torn in two. That's a very toxic and dangerous game, and it certainly won't make for a stronger country. Now who's playing politics with national security?"

MSNBC's Keith Olbermann devoted his "Special Comment" to Cheney, who he described this way: "Neurotic. Paranoid. False to fact and false to reason. Forever self-rationalizing. His inner rage at his own impotence and failure dripping from every word and as irrational, as separated from the real world, as dishonest, as insane, as any terrorist."

Michael D. Shear writes in The Washington Post: "It has been evident for weeks that the relative seclusion Cheney kept as vice president was ending. In his speech yesterday, Cheney made it clear that he views himself as the principal keeper of the Bush legacy and a key player in making sure Obama does not mischaracterize the past eight years.

"Bush confidants said Cheney is not explicitly channeling his former boss. Bush is neither asking him to make the appearances nor discouraging him from doing so, said former Bush press secretary Dana Perino, who remains close to the 43rd president. But Perino applauded Cheney's decision to offer what she said is a 'full accounting' of the Bush presidency."

Eric L. Lewis writes for the Huffington Post: "Former Vice President Cheney has masterfully shifted the debate about torture from the realm of law and ethics to that of pure efficacy....

"The absolute prohibition on torture is not based on a consensus that it never works. Rather, it is based on the sad realization that the impulse to torture is ever-present; that human beings who are frightened or zealous or full of rage -- as human beings invariably are -- will feel a powerful need to torture and a powerful justification for acting on that need. It is useful to recall the understandable fear and anger after September 11 not to justify or excuse torture, but to understand that it is precisely at the moment of most stress that the norm against torture must be powerfully affirmed....

"We do not allow torture in the ticking time bomb scenario because when the would-be torturer looks out on the landscape, he sees it littered with ticking time bombs and people who might know something about them. We do not balance the costs and benefits to see if torture works because there will always be some argument that can be made that it works or it might work or people believed at the time that it would."

Quick Takes

By Dan Froomkin
2:55 PM ET, 05/22/2009

Jeff Zeleny writes on the Supreme Court vacancy in the New York Times: "President Obama has met with at least one other finalist for the job, an official confirmed Thursday, bringing the number of face-to-face interviews to at least two. Earlier this week, Mr. Obama met with Judge Diane P. Wood, who sits on the federal appeals court in Chicago."

Cid Standifer writes in the Roswell (N.M.) Daily Record about former President George W. Bush's speech at a reception for scholarship recipients at an Artesia, N.M., high school yesterday: "Bush said that he was relieved to be out of office. 'I no longer feel that great sense of responsibility that I had when I was in the Oval Office,' he said. 'And frankly, it's a liberating feeling.'"

Jacques Steinberg writes in the New York Times: "The public is to get its first glimpse of 'Robobama,' as it is known among some handlers, on July 4." The Obama animatronic figure to be displayed at Disney World in Orlando, Fla., "is the result of attention to minute details by Disney sculptors, animators, engineers and even anatomists who pored over presidential photographs and video of him and then drew on the latest advances in robotic technology."

Paul Krugman writes in his New York Times opinion column: "That didn’t take long. Less than two weeks have passed since much of the medical-industrial complex made a big show of working with President Obama on health care reform — and the double-crossing is already well under way.... So here’s the question: Will Mr. Obama gloss over the reality of what’s happening, and try to preserve the appearance of cooperation? Or will he honor his own pledge, made back during the campaign, to go on the offensive against special interests if they stand in the way of reform?"

The Philadelphia Inquirer editorial board writes: "Sometimes promises are hard to keep. Especially those made by politicians in the heat of an election. But President Obama should live up to his campaign pledge to stop the military from discriminating against gays and lesbians."

Jake Tapper blogs for ABC News that the White House wouldn't let TV networks film Obama shooting hoops with the University of Connecticut Lady Huskies, who were visiting Obama last month after winning the NCAA women's basketball championship. "Now we know why: Obama White House officials decided to do their own media report on the visit, complete with cuts, interviews, and chyrons identifying who's speaking.... Do Obama White House officials think their media coverage isn't flattering enough?" The raw video has already garnered the White House more than half a million views.

Problems With Preventive Detention

By Dan Froomkin
1:10 PM ET, 05/22/2009

There is one big difference between how George W. Bush indefinitely detained suspected terrorists without charges and the way Barack Obama endorsed yesterday: Obama wouldn't go it alone.

"In our constitutional system, prolonged detention should not be the decision of any one man," Obama said.

At issue is what to do about, in the president's words, "people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States." People who have "made it clear that they want to kill Americans...who, in effect, remain at war with the United States."

Said Obama: "We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified...

"If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution."

All that may sound like a big step up from the unilateral, absolutist path Bush pursued. And in some ways, it certainly is.

But -- after torture -- indefinite detention without charges was the Bush administration's most radical departure from traditional American legal principles. It's hard to see how Obama and Congress could set up a process that would make it okay. Indeed, you could argue that trying to codify it and normalize could actually make it worse.

Another term for this is preventive detention. The government would hold people indefinitely not because of something they did, but because of what they might do.

Obama's remarks on this issue were by far the most alarming of several deeply troubling bits in his otherwise soaring speech about national security and American values yesterday.

Here is MSNBC host Rachel Maddow last night, talking about the "two speeches" Obama gave. "One speech that could have been billed as a ballad to the Constitution -- a proclamation of American values, a repudiation of the lawless behavior of the last administration. And another speech -- announcing a radical new claim of presidential power that is not afforded by the Constitution and that has never been attempted in American history, even by George W. Bush and Dick Cheney."

She approvingly shows video of Obama criticizing Bush for his "ad hoc legal approach." But moments later, Maddow said, Obama announced "his own ad hoc legal approach for fighting terrorism....

"We will incarcerate people preventively -- preventive incarceration. Indefinite detention without trial. That's what -- that's what this is. That's what President Obama proposed today if you strip away the euphemisms....

"How can a president speak the kind of poetry that President Obama does about the rule of law and call for the power to indefinitely, preventively imprison people because they might commit crimes in the future? How can those two things co-exist in the same man, even in the same speech?"

Glenn Greenwald writes for Salon that "once you accept the rationale on which this proposal is based -- namely, that the U.S. Government must, in order to keep us safe, preventively detain 'dangerous' people even when they can't prove they violated any laws -- there's no coherent reason whatsoever to limit that power to people already at Guantanamo, as opposed to indefinitely imprisoning with no trials all allegedly 'dangerous' combatants, whether located in Pakistan, Thailand, Indonesia, Western countries and even the U.S."

He proposes some excellent questions for the Obama administration and its defenders:

"Bush supporters have long claimed -- and many Obama supporters are now insisting as well -- that there are hard-core terrorists who cannot be convicted in our civilian courts. For anyone making that claim, what is the basis for believing that?

"For those asserting that there are dangerous people who have not yet been given any trial and who Obama can't possibly release, how do you know they are 'dangerous' if they haven't been tried? Is the Government's accusation enough for you to assume it's true?..

"Finally, don't virtually all progressives and Democrats argue that torture produces unreliable evidence? If it's really true (as Obama defenders claim) that the evidence we have against these detainees was obtained by torture and is therefore inadmissible in real courts, do you really think such unreliable evidence -- evidence we obtained by torture -- should be the basis for concluding that someone is so 'dangerous' that they belong in prison indefinitely with no trial?"

So what are we supposed to do? Just let these people go?

Why not, suggests blogger Digby: "There are literally tens of thousands of potential terrorists all over the world who could theoretically harm America. We cannot protect ourselves from that possibility by keeping the handful we have in custody locked up forever, whether in Guantanamo or some Super Max prison in the US...

"There is not some finite number of terrorists we can kill or capture and then the 'war' will be over and the babies will always be safe. This whole concept is nonsensical."

Sheryl Gay Stolberg writes in the New York Times: "The answer proposed by Mr. Obama would write an entirely new chapter in American law to permit 'prolonged detention' — just as at Guantánamo, but with oversight by the courts and Congress. Human rights advocates express outrage at that approach, however, saying it would violate the very civil liberties Mr. Obama, a former lecturer on constitutional law, has vowed to protect.

"'It is very troubling that he is intent on codifying in legislation the Bush policies of indefinite detention without charge,' Anthony D. Romero, executive director of the American Civil Liberties Union, said after the speech. 'That simply flies in the face of established American legal principle.'"

Obama's strongest argument for indefinite detention is that, as he repeatedly noted yesterday, Bush left him a real mess to deal with. Torture and incompetence has rendered unprosecutable any number of potential cases. And even detainees who weren't hardened enemies of the United States before being subjected to years of isolation, sleep deprivation, stress positions, threatening dogs, forced nakedness, and exposure to extreme heat and cold could well bear us some pretty intense ill will at this point.

Peter Finn writes in The Washington Post: "Some human rights advocates criticized Obama for adopting the idea that some detainees are not entitled to a trial. Others said the president was boxed in by cases inherited from the Bush administration in which possible prosecution had been irretrievably compromised by coercive interrogation.

"The president stopped short of saying he would institutionalize indefinite detention for future captives.

"'The issue is framed pretty exclusively in terms of existing Guantanamo detainees,' said Tom Malinowski, the head of Human Rights Watch's Washington office. 'There is a big difference between employing an extraordinary mechanism to deal with legacy cases compromised because of Bush administration actions and saying we need a permanent national security regime.'

"But Michael Ratner, president of the Center for Constitutional Rights, said employing preventive detention simply because some cases at Guantanamo are too difficult to prosecute involves the kind of legal expediency that Obama said was a hallmark of his predecessor's policies....

"Even advocates of indefinite detention backed by judicial review, such as Jack Goldsmith, head of the Office of Legal Counsel in the Bush administration and now a law professor at Harvard University, recognize that such a system is deeply controversial because the war against al-Qaeda is indefinite, the likelihood of mistaken identity is much higher than in traditional warfare in which combatants wear uniforms, and many of those detained are citizens of allied countries that do not view the conflict as a war and regard terrorism as an exclusively criminal matter."

A gleeful Charles Krauthammer writes in his Washington Post opinion column that "flip-flops on previously denounced anti-terror measures are the homage that Barack Obama pays to George Bush. Within 125 days, Obama has adopted with only minor modifications huge swaths of the entire, allegedly lawless Bush program."

Krauthammer describes "the usual Obama three-step: (a) excoriate the Bush policy, (b) ostentatiously unveil cosmetic changes, (c) adopt the Bush policy." And he sees "an undeniable, irresistible national interest that, in the end, beyond the cheap politics, asserts itself. The urgencies and necessities of the actual post-9/11 world, as opposed to the fanciful world of the opposition politician, present a rather narrow range of acceptable alternatives....

"The Bush policies in the war on terror won't have to await vindication by historians. Obama is doing it day by day. His denials mean nothing. Look at his deeds."

David Brooks writes in his New York Times column that Obama has largely adopted Bush policies -- but not those of the early, Cheney-influenced Bush years, just the ones of the later years.

But Joe Klein writes for Time: "The difference between Obama and Cheney-Bush on national security and foreign policy issues is simply put: it's the difference between a moderate and an extremist, the difference between a leader and a bully."

Salon's Joe Conason thinks the big picture is still good: "Whatever the shortcomings of the present administration in restoring civil liberties and openness to government -- there are and will be many -- the commitment delivered again today by the president at the very least provides a benchmark for evaluating his performance and a restoration of the idea that Americans stand for fairness and decency. Methodically but eloquently, he described the dilemma that he confronts as a commander in chief who must protect the nation and its people against extremely malevolent enemies while respecting the democratic institutions that balance his power as well as the human rights of those same enemies. Not only is that approach the only way to remain true to his oath of office, the president said, but it is also the only way to effectively defend ourselves and our allies against those who would do us harm."

The New York Times editorial board writes: "For seven years, President George W. Bush tried to frighten the American public — and successfully cowed Congress — with bullying and disinformation. On Thursday, President Obama told the truth. It was a moment of political courage that will make this country safer."

The Washington Post editorial board writes: "By framing the matter in the context of war, Mr. Obama correctly acknowledged the limitations of traditional law enforcement tools and venues to contain and bring to justice those who would harm the United States. Yet he repudiated what he called the Bush administration's 'ad hoc,' the-ends-justify-the-means approach and spoke eloquently about the need to craft legitimate and effective legal structures that give meaningful rights to the accused while protecting the country's national security interests."

The issue of indefinite detention is of enormous constitutional significance. Obama also had some troubling things to say when it came to military commissions, the state secrets doctrine, transparency, and his lack of curiosity over what really happened during the last eight years. (See yesterday's item.) But most of the traditional media coverage -- especially on cable -- was stenographic and focused on the so-called "duel" between Obama and Cheney, who launched into his own speech at the American Enterprise Institute just moments after Obama finished up.

There was also a lot written about the political ramifications of Obama's speech. Peter Baker writes in the New York Times: "Arguably on the defensive over policy for the first time since taking office, Mr. Obama is gambling that his oratorical powers can reassure the public that bringing terrorism suspects to prisons on American soil will not put the public in danger.

"At the same time, he must explain and win support for a nuanced set of positions that fall somewhere between George W. Bush and the American Civil Liberties Union....

"Rather than an easily labeled program, Mr. Obama is picking seemingly disparate elements from across the policy continuum — banning torture and other harsh interrogation techniques but embracing the endless detention of certain terror suspects without trial, closing the prison at Guantánamo Bay, Cuba, but retaining the military commissions held there.

"'A surgical approach,' the president called it in his address on Thursday at the National Archives.

"But surgical approaches are rarely satisfying to those on either end of the political spectrum who tend to dominate political dialogue in Washington, particularly when it comes to an issue as fraught with emotional resonance and moral implications as the struggle against terrorists."

U.S. News reports: "Some commentators thought the President marginally helped his cause yesterday, but most said he appeared to have failed to change Senate Democrats' minds. On ABC World News, George Stephanopoulos, said that before the speech the President 'was losing ground on that issue. I think he froze Democrats in place right now. But he's going to have to come out with a plan quickly in order to turn that around in the Congress.' On NBC Nightly News, however, Andrea Mitchell said 'the President failed to put out this firestorm because his allies on the Hill still say he has not given them the details that they want.' CNN's Situation Room reported, 'Congressional Democrats remain frustrated with the President for putting them in a vulnerable political position by asking for $80 million to close Guantanamo without a plan for prisoners there.'"

Michael D. Shear writes for The Washington Post about how the speech developed, starting last week as "Obama paced the Oval Office, the debate about torture and detainees clearly weighing on him....For more than an hour...national security speechwriter Ben Rhodes scribbled down the president's thoughts, filling eight pages of a legal pad....

"Obama, aides said, believed that the administration was being forced by legal proceedings to make case-by-case decisions that were not understood by the public in the broader context of his attempt to shift the nation's conduct in the battle against terrorism."

And here are a couple related stories.

Carrie Johnson and Walter Pincus write in The Washington Post: "In news conferences, speeches and debates this week, lawmakers from both parties, as well as the director of the FBI, have sounded alarms about moving Guantanamo Bay detainees to federal prisons, where they could launch riots, hatch radical plots or somehow be released among the populace....

"But the apocalyptic rhetoric rarely addresses this: Thirty-three international terrorists, many with ties to al-Qaeda, reside in a single federal prison in Florence, Colo., with little public notice."

And Justin Elliott writes for TPM Muckraker that the New York Times has backed off its assertion in an Elisabeth Bumiller front-pager yesterday, in which she wrote that one in seven detainees released from Guantanamo "returned to terrorism or militant activity."

Elliott writes: "Appearing on MSNBC today, Bumiller said 'there is some debate about whether you should say 'returned' because some of them were perhaps not engaged in terrorism, as we know -- some of them are being held there on vague charges.'...

"The paper has changed the lead and headline of the Web version of the story to reflect the uncertainty."

Ken Gude writes for Thinkprogress: "An accurate story using this same information would report that some Guantanamo detainees have engaged in terrorism upon release, but that most of the allegations of such activity remain unconfirmed and that previous Pentagon reports have included activity that is not normally associated with terrorism."

Late Night Humor

By Dan Froomkin
9:49 AM ET, 05/22/2009

Jon Stewart responds to the dueling speeches -- and the media overkill. On Obama: "I love it when he does the Bush covers....The trick is to use cowboy's words -- in a lawyer's voice." And he gets into an argument with Cheney on the "middle ground."

The Daily Show With Jon StewartM - Th 11p / 10c
American Idealogues
Cartoon Watch

By Dan Froomkin
9:44 AM ET, 05/22/2009

Jeff Danziger and Mike Keefe on Cheney's scare tactic, Tony Auth on Cheney's appreciation for the Constitution, Tom Toles and Walt Handelsman and Nick Anderson on Obama's Gitmo plans, J.D. Crowe on turning the page, Daryl Cagle on the Republican persistence, and John Sherffius on those we honor.

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