By Dan Froomkin
11:25 AM ET, 06/ 8/2009
Three newly-disclosed Justice Department e-mails thoroughly vindicate the most cynical suspicions about how former vice president Dick Cheney bent ostensibly independent Justice Department lawyers to his will and forced them to manufacture legal cover for his torture policies.
The e-mails, which date back to a 2005 re-evaluation of interrogation policies, were written by then-deputy attorney general James Comey. They reveal Cheney's extraordinary influence over then-attorney general Alberto Gonzales and key lieutenants -- including top officials in the department's Office of Legal Counsel (OLC).
Comey describes how he and some of his colleagues had "grave reservations" about the legal analyses being concocted for Cheney. And he accurately predicts that Cheney and other White House officials would later point the finger at the Justice Department during the investigations that would inevitably ensue once the administration's actions were made public.
Indeed, in one e-mail, Comey describes an exchange with Ted Ullyot, then Gonzales's chief of staff: "I told him that the people who were applying pressure now would not be there when the s--- hit the fan. Rather, they would simply say they had only asked for an opinion."
Gonzales and Ullyot both came to Justice from the White House counsel's office. And Comey writes that "everyone seemed to be thinking as if they still work at the White House and not the United States Department of Justice."
Noting that he had already announced his resignation at the time, Comey expresses sadness that some top officials who were "too weak to stand up for the principles" that undergird DOJ.
This is exactly what many of us have been alleging for a long time.
In one e-mail, Comey describes a dramatic meeting with Gonzales, in which he warned that approval of the interrogation techniques would likely lead to criminal prosecution.
"In stark terms I explained to him what this would look like some day and what it would mean for the president and the government," Comey writes. "I sketched out the 'summation' that could be made to demonstrate that some of this stuff was simply awful. I told him it would all come out some day and be presented in the ways I was presenting it."
The e-mails date back to DOJ's second round of finding legal rationalizations for torture. By 2005, the department had renounced the original August 1, 2002, "torture memo" from the OLC, the CIA's office of inspector general had questioned the legality and effectiveness of the techniques being used at the CIA's secret prisons, and the CIA had abandoned waterboarding -- but not many other extreme measures.
Cheney's quest to restore the necessary legal cover resulted in three new memos, which were among those declassified and released in April by the Obama administration.
The first memo concluded that brutal interrogation techniques including waterboarding did not individually violate the federal criminal prohibition against torture.
The second memo concluded that even the combined use of those techniques didn't violate that particular statute. Those two memos were issued on May 10, 2005.
The third memo, dated May 25, managed to conclude that the techniques didn't even violate the United Nations Convention Against Torture's prohibition of "cruel, inhuman or degrading treatment."
The previously undisclosed e-mails from Comey were Web-published on Saturday by the New York Times. But Scott Shane and David Johnston chose to focus on a minor point -- that Comey and other lawyers, even while expressing their grave concerns about the interrogation methods in question, had approved the first memo.
"When Justice Department lawyers engaged in a sharp internal debate in 2005 over brutal interrogation techniques, even some who believed that using tough tactics was a serious mistake agreed on a basic point: the methods themselves were legal," Shane and Johnston wrote.
Yes, Comey approved the first memo. And that certainly tarnishes his reputation. Comey, almost alone among senior Justice Department officials, had somehow managed to emerge with his reputation intact -- so much so that Politico even reported in May that "some White House officials" (and I'm assuming they meant this White House, not the last one) were suggesting he was Supreme Court material.
But Comey was ever the pragmatist. The most famous Comey story, as related by Comey himself in 2007, involved a dramatic rebellion in March 2004 -- complete with a mad dash to the hospital bedside of then-attorney general John Ashcroft -- in which Comey, backed up by Ashcroft, refused to reauthorize a secret NSA warrantless surveillance program as it was then constituted. But most legal scholars believe the whole program, not just the still-mysterious part Comey objected to, was operating in clear violation of the Foreign Intelligence Surveillance Act.
Blogger Marcy Wheeler argues that Comey's acquiescence to the argument that the interrogation tactics individually didn't violate one particular law does not mean he necessarily considered them legal. He may have felt -- and apparently did feel -- that they violated other laws, including the Convention Against Torture. He certainly felt that their use in combination -- which is how the CIA used them -- was clearly illegal.
Wheeler also argues -- with some justification, it seems to me -- that the e-mails were probably leaked to the Times in a "pre-emptive strike" on an upcoming report from the DOJ's Office of Professional Responsibility. That report is said to harshly criticize former OLC lawyers John Yoo, Jay Bybee and Steven Bradbury for their role in approving torture.
The message their defenders clearly wanted to send -- and which the Times conveyed -- was that even those DOJ officials who had thus far "escaped criticism because they raised questions about interrogation and the law" agreed with at least some of the rationales put forth by Yoo et. al.
But the actual e-mails, in which Comey documents his various conversations on the matter, don't really support that message. Rather, they paint a portrait of a hopeless rear-guard action by Comey and others against Cheney and his willing lackeys.
As Glenn Greenwald blogs for Salon: "[T]he real story here is obvious -- these DOJ memos authorizing torture were anything but the by-product of independent, good faith legal analysis....
"These DOJ memos, like the CIA reports [in the run-up to war in Iraq], were all engineered by the White House to give cover to what they wanted to do; they were not the precipitating events that led to and justified those decisions."
In his April 27 e-mail, Comey describes telling Gonzales directly about his "grave reservations" about the second memo. Gonzales's response? "The AG explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP's request and the AG had promised they would be ready early this week."
Comey also notes that OLC lawyer Patrick Philbin had previously reported that then-acting OLC director Steve Bradbury "was getting constant similar pressure from [White House counsel] Harriet Miers and [Cheney counsel] David Addington to produce the opinions." Comey adds: "Parenthetically, I have previously expressed my worry that having Steve as 'Acting' -- and wanting the job -- would make his susceptible to just this kind of pressure."
By the end of the April 27 e-mail it appears that Gonzales has agreed to give Comey a chance to alter the second memo. But in the April 28 e-mail, Comey recounts a conversation with Ullyot, Gonzales's chief of staff, in which it becomes clear that Comey has been outflanked by Cheney and that the memo will go out as written.
Comey concludes: "People may think it strange to hear me say I miss John Ashcroft, but as intimidated as he could be by the WH, when it came to crunch-time, he stood up, even from an intensive care hospital bed. That backbone is gone."
And by his May 31 e-mail, his wistful regrets have turned into barely contained fury.
The previous day, the department had issued the third memo, essentially giving a go-ahead (and perhaps even more importantly, retroactive approval) to torture. There was to be a high-level meeting on the subject at the White House later than day. And in a morning meeting with Gonzales, Comey's entreaties evidently fell on deaf ears.
"The AG began by saying that [then-national security adviser Condoleezza] Rice was not interested in discussing details and that her attitude was that if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for detailed policy discussion," Comey writes. "Pat and I urged the AG in the strongest possible terms to drive a full policy discussion of all techniques."
Comey then writes about delivering to Gonzales that imagined "summation" in the case against the administration for torture. And, he adds: "I mentioned that there was a video of an early session, which would come out eventually."
Comey writes that later that day, upon returning from the White House, Gonzales "said the meeting had gone very well, and that there had been a full factual and policy discussion. He said the issues were fully presented and and he had drawn my 'worst-case scenario' for them. At the end, all the Principles approved the full list."
Comey's prediction that "simply awful" things would be eventually made public was proven correct. But the video he mentioned was one of many that the CIA conveniently destroyed less than six months later. And of course his vision of a criminal prosecution remains unfulfilled. Oh, to hear that summation -- either from Comey, or from a federal prosecutor.