Video and Analysis of Obama Torture Statement: Let's Blame the Lawyers?

The politics of torture rumbles on. Facing criticism over the release of the four memoranda documenting the Bush Administration's authorisation of "enhanced interrogation" (from Bush defenders: releasing the memos jeopardises national security and/or torture worked; from Bush critics: OK, so who is going to be prosecuted for this?), President Obama manoeuvred through a short statement yesterday in response to a reporter's question (the exchange begins at 4:26 --- transcript below):

[youtube]http://www.youtube.com/watch?v=LBIcjXrfEKQ[/youtube]

Obama began with the rhetoric that "there are still enemies out there" being fought by "courageous people" who have to make "difficult decisions" but the memoranda showed we were "losing our moral bearings". Then his deliberate answer got interesting:

For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it's appropriate that they be prosecuted. With respect to those who formulated those legal decisions, I would say that is going to be more a decision for the attorney general within the parameter of various laws, and I don't want to prejudge that.

The President immediately returned to the theme of let's move on: "As a general deal, I think we should be looking forward and not backward. "I do worry about this getting so politicized that we cannot function effectively, and it hampers our ability to carry out critical national security operations." Still he had opened up the question:

Are the Bush Administration's lawyers going to take the criminal fall for the torture authorised by their President and his senior advisors?

Reviewing the video, I think Obama, with his dedication to reassuring intelligence and security personnel that he "has their back" and his decision not to challenge the Bushmen who ordered torture, inadvertently held open the door of prosecution for a few lawyers. He may well close that door quickly.

Let's state the bluntly obvious, however. These lawyers --- John Yoo, Jay Bybee, William Haynes, Stephen Bradbury --- were merely carrying out a job handed to them by policymakers, notably the officials in Vice President Dick Cheney's office. The task was not "Are these proposed interrogations legal?" but "Give us a finding which says these interrogations are legal." No doubt some of the lawyers eagerly took on the job --- John Yoo, in particular, saw the sanctioning of torture as part of a legitimate exercise in Executive power --- but, without the direction from above, their memoranda and guidances do not get written.

Presidents and their right-hand men --- unless they are overthrown in coups or toppled by wars --- don't wind up in jail. Their lawyers, however, are expendable.

If you don't think so, ask a man named Lewis "Scooter" Libby. Remember? Out of all the Bush Administration folks who leaked the name of CIA operative Valerie Plame to tarnish her and thus defend their "legitimate" intelligence on Saddam Hussein's Iraq, he's the only one who wound up in jail.

TRANSCRIPT

QUESTION: (OFF-MIKE) to ask you about the interrogation memos (OFF-MIKE) you were clear about not wanting to prosecute those who -- who carried out the instructions under this legal guidance.

OBAMA: Right.

QUESTION: Can you be that clear about those who devised the policy? And then, quickly, on the second matter, how do you feel about investigations, whether a special -- special commission or something of that nature (OFF-MIKE) to go back and really look at the issue?

OBAMA: Well, the -- look, as I said before, this -- this has been a difficult chapter in our history and one of the tougher decisions that I’ve had to make as president.

On the one hand, we have very real enemies out there, and we rely on some very courageous people not just in our military, but also in the Central Intelligence Agency to help protect the American people, and they have to make some very difficult decisions, because, as I mentioned yesterday, they are confronted with an enemy that doesn’t have scruples, that isn’t constrained by constitutions, aren’t constrained by legal niceties.

Having said that, the -- the OLC memos that were released reflected, in my view, us losing our moral bearings. That’s why I’ve discontinued those enhanced interrogation programs.

For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it’s appropriate for them to be prosecuted.

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 perimeters of various laws, and -- and I don’t want to prejudge that. I think that there are a host of very complicated issues involved there. As a general view, I think that we should be looking forward and not backwards. I do worry about this getting so politicized that we cannot function effectively and it hampers our ability to carry out critical national security operations.

And so if and when there needs to be a further accounting of what took place during this period, I think for Congress to examine ways that it can be done in a bipartisan fashion, outside of the typical hearing process that can sometimes break down and break it entirely along party lines, to the extent that there are independent participants who are above reproach and have credibility, that would probably be a more sensible approach to take.

I’m not suggesting that, you know, that should be done, but I’m saying, if you’ve got a choice, I think it’s very important for the American people to feel as if this is not being dealt with to provide one side or another political advantage, but rather is being done in order to learn some lessons so that we move forward in an effective way.

And the last point I just want to emphasize, as I said yesterday at -- at the CIA when I visited, you know, what makes America special, in my view, is not just our wealth, and the dynamism of our economy, and our extraordinary history and diversity. It’s -- it’s that we are willing to uphold our ideals even when they’re hard.

And sometimes we make mistakes, because that’s the nature of human enterprise. But when we do make mistakes, then we are willing to go back and correct those mistakes and -- and keep our eye on those -- those ideals and -- and values that have been passed on generation to generation.

And -- and that is -- is what has to continue to guide us as we move forward. And -- and I’m confident that we will be able to move forward, protect the American people effectively, live up to our values and ideals.

And that’s not a matter of being naive about how dangerous this world is. As I said yesterday to some of the CIA officials that I met with, I wake up every day thinking about how to keep the American people safe, and I go to bed every night worrying about keeping the American people safe.

I’ve got a lot of other things on my plate. I’ve got a big banking crisis, and I’ve got unemployment numbers that are very high, and we’ve got an auto industry that needs work.

There are a whole things -- range of things that during the day occupy me, but the thing that I consider my most profound obligation is keeping the American people safe.

So I -- I do not take these things lightly, and I’m not in any way under -- under illusion about how difficult the task is for those people who are on the front lines every day protecting the American people. So I wanted to communicate a message yesterday to all those who overwhelmingly do so in a lawful, dedicated fashion that I have their back.

All right? Thank you, everybody.

UPDATE: Taking Apart the Bushmen's Defence of Torture

Related Post: Video - Dick Cheney’s Fox News Interview and the Defense of Torture

Further to this morning's blog about former Vice President Cheney's bold if faintly ludicrous manoeuvre on Fox News to call for the declassification of Government memoranda that prove torture worked, there are two notable pieces in The Washington Post.

First, the ridiculous. Marc Thiessen, who was a speechwriter for President Bush but has somehow transformed into a "senior" Adminstration official in recent weeks, claims, "The CIA's Questioning Worked". He tries to prove this through one of the four declassified memoranda from last week, the July 2005 "finding" by Government lawyer Stephen Bradbury that rationalised torture.

It doesn't seem to worry Thiessen that the same memorandum constructing an argument for illegal interrogation might just exaggerate or even lie about the benefits of those interrogations. For example, Thiessen writes, "Interrogations of [Abu] Zubaydah -- again, once enhanced techniques were employed -- furnished detailed information regarding al Qaeda's 'organizational structure, key operatives, and modus operandi' and identified KSM [Khalid Sheikh Mohammad] as the mastermind of the September 11 attacks."

Too bad the former speechwriter forgot to read the 29 March article in the same paper that published his editorial:

In the end, though, not a single significant plot was foiled as a result of Abu Zubaida's tortured confessions, according to former senior government officials who closely followed the interrogations. Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida -- chiefly names of al-Qaeda members and associates -- was obtained before waterboarding was introduced, they said.

Now, the sublime. Dan Froomkin once again takes apart the "torture works" argument of Cheney, Thiessen, and other former Government officials. Today's analysis is so well-documented that it should be available as a rebuttal to anyone who tries to evade the full extent of the Bush Administration's criminal activity:

Separating Truths From Lies

Time and again, George W. Bush's White House constructed and occupied its own alternate realities to suit its political needs.

Saddam Hussein had weapons of mass destruction. Then "Mission Accomplished" and, for nearly four years, the insurgency was "in its last throes." Having declared that his team was fully prepared beforehand, Bush praised them after Hurricane Katrina for going a "heckuva job." He insisted repeatedly that we don't torture. It was an official administration position that tax cuts increased tax revenues, and that the economy was strong.

The decisions based on these non-realities were, not surprisingly, among the most disastrous of the Bush era. And all along, Bush was aided and abetted by a mainstream press corps that got accustomed to presenting "both sides of the story" rather than differentiating fact from fiction -- or what might be called truth from lies. Now a large fraction of the United States seems to occupy its own reality, even served by its own news outlets.

Why do I bring this up again? Because it's anything but ancient history. This denial of reality continues to infect our political discourse over the darkest of all the Bush legacies: The policy of treating detainees with deliberate cruelty, and torturing them. It is objective fact that the Bush administration consciously adopted tactics that are not just morally reprehensible and flatly illegal, but which experts says don't produce reliable intelligence -- just coerced confessions.

The argument in defense of the administration, made primarily by those who were complicit, is that it wasn't torture and it worked. But an increasingly critical mass of investigative reporting, supported by the release of key legal documents, has made it quite clear -- at least to those of us in what a Bush aide famously and contemptuously referred to as the "reality-based community" -- that those arguments are spurious.

Nevertheless, as unsupported by reality as those claims are, they will continue to be effective with at least some the public -- and the traditional media will continue to depict this as a story with two sides -- until or unless some sort of trusted, exhaustive and official investigation takes place, rendering an authoritative verdict on what happened, why, who was responsible, and what lessons we should learn.

Mark Danner made this case brilliantly (and at length) in his second New York Review of Books essay about the International Committee of the Red Cross report on 14 detainees held at the CIA's secret prison, which he both described and Web-published.

The Bush administration's counter-narrative, championed most assertively by vice president Dick Cheney, is that if it hadn't been for the "enhanced interrogation" of terror suspects, we would have been attacked again. But as Danner puts it: "Cheney's story is made not of facts but of the myths that replace them when facts remain secret."

Danner writes: "The only way to defuse the political volatility of torture and to remove it from the center of the 'politics of fear' is to replace its lingering mystique, owed mostly to secrecy, with authoritative and convincing information about how it was really used and what it really achieved. That this has not yet happened is the reason why, despite the innumerable reports and studies and revelations that have given us a rich and vivid picture of the Bush administration's policies of torture, we as a society have barely advanced along this path. We have not so far managed, despite all the investigations, to produce a bipartisan, broadly credible, and politically decisive effort, and pronounce authoritatively on whether or not these activities accomplished anything at all in their stated and still asserted purpose: to protect the security interests of the country.

"This cannot be accomplished through the press; for the same institutional limitations that lead journalists to keep repeating Bush and Cheney's insistence about the 'legality' of torture make it impossible for the press alone, no matter how persuasive the leaks it brings to the public, to make a politically decisive judgment on the value of torture.... What is needed is ... a broadly persuasive judgment, delivered by people who can look at all the evidence, however highly classified, and can claim bipartisan respect on the order of the Watergate Select Committee or the 9/11 Commission, on whether or not torture made Americans safer."

The Bush apologists think their best argument for torture is the case of Abu Zubaida, who they insist provided information under duress that prevented further attacks. And compared to the possibly hundreds of arguably completely innocent detainees turned in to American authorities for bounties and routinely beaten, sometimes to death, at the military prison in Bagram, Afghanistan, they may have point.

Yet ever since Ron Suskind came out with his book, The One Percent Doctrine, in June 2006, there's been persuasive evidence that almost all the administration's claims about Zubaida were wrong -- and that intelligence officials mischaracterized his value so Bush wouldn't lose face.

That evidence continued to mount with a March 29 Washington Post story by Peter Finn and Joby Warrick. See my March 30 post: Bush's Torture Rationale Debunked.

Now Scott Shane writes in Saturday's New York Times that the Bush administration's decision to ratchet up the brutality inflicted upon Zubaida, including repeated waterboarding, came "despite the belief of interrogators that the prisoner had already told them all he knew, according to former intelligence officials and a footnote in a newly released legal memorandum.

"The escalation to especially brutal interrogation tactics against the prisoner, Abu Zubaydah, including confining him in boxes and slamming him against the wall, was ordered by officials at C.I.A. headquarters based on a highly inflated assessment of his importance, interviews and a review of newly released documents show...

"[S]enior agency officials, still persuaded, as they had told President George W. Bush and his staff, that he was an important Qaeda leader, insisted that he must know more.

"'You get a ton of information, but headquarters says, "There must be more,"' recalled one intelligence officer who was involved in the case. As described in the footnote to the memo, the use of repeated waterboarding against Abu Zubaydah was ordered 'at the direction of C.I.A. headquarters,' and officials were dispatched from headquarters 'to watch the last waterboard session.'...

"'He pleaded for his life,' the official said. 'But he gave up no new information. He had no more information to give.'...

"Instead, watching his torment caused great distress to his captors, the official said."

But none of this matters to the defenders of torture.

Former Bush administration officials Michael Hayden and Michael B. Mukasey wrote in a Wall Street Journal op-ed on Friday with the spurious claim that Zubaida "was coerced into disclosing information that led to the capture of Ramzi bin al Shibh, another of the planners of Sept. 11, who in turn disclosed information which -- when combined with what was learned from Abu Zubaydah -- helped lead to the capture of KSM and other senior terrorists, and the disruption of follow-on plots aimed at both Europe and the U.S."

This although, as I've written previously, Bin al Shibh was captured almost half a year after Zubaida was, and Suskind has reported that the key information about his location came not from Zubaida but from an al-Jazeera reporter.

On Monday, the Wall Street Journal op-ed page was even able to find someone -- in this case, dependable Bush apologists David B. Rivkin and Lee A. Casey -- to say the tactics weren't even torture.

And here, via Real Clear Politics, is Hayden on Fox News Sunday with Chris Wallace, sticking to his guns: "In September 2006, President Bush gave a speech on the Abu Zubaydah case. He pointed out that he -- Zubaydah gave us nominal information, probably more valuable than he thought. He clammed up. The decision was made to use techniques.

"After that decision was made and the techniques were used, he gave up more valuable information, including the information that led to the arrest of Ramzi Binalshibh. After the New York Times story yesterday, I called a few friends to make sure my memory was correct, and I guess, to quote somebody from your profession, we stand by our story.

"The critical information we got from Abu Zubaydah came after we began the EITs -- the enhanced interrogation techniques."

Wallace: "Not before."

Hayden: "No."

Danner's argument about the need for "a broadly persuasive judgment" is compelling, and well worth reading. I would simply add that we need a lot more disclosure before such a judgment can be reached. In fact, over at NiemanWatchdog.org, where I am deputy editor, we are today kicking off a series of articles calling attention to all the things we still need to know about torture and other abuses committed after 9/11. We chose that focus because we think that when you think about how much remains hidden, how many issues are still unresolved, how many injustices have never been redressed, and how little accountability there has been, it's hard to make the argument that we're ready to move on.

Meanwhile, the memos I wrote about on Friday continue to disgorge new information and generate debate. And it seems that President Obama, who said in a statement that those who followed the legal advice in the memos won't be prosecuted, doesn't want to see anyone prosecuted at all.

Scott Shane reports this morning in the New York Times: "C.I.A. interrogators used waterboarding, the near-drowning technique that top Obama administration officials have described as illegal torture, 266 times on two key prisoners from Al Qaeda, far more than had been previously reported.

"The C.I.A. officers used waterboarding at least 83 times in August 2002 against Abu Zubaydah, according to a 2005 Justice Department legal memorandum....

"The 2005 memo also says that the C.I.A. used waterboarding 183 times in March 2003 against Khalid Shaikh Mohammed, the self-described planner of the Sept. 11, 2001, terrorist attacks....

"The fact that waterboarding was repeated so many times may raise questions about its effectiveness, as well as about assertions by Bush administration officials that their methods were used under strict guidelines....

"The new information on the number of waterboarding episodes came out over the weekend when a number of bloggers, including Marcy Wheeler of the blog emptywheel, discovered it in the May 30, 2005, memo.

"The sentences in the memo containing that information appear to have been redacted from some copies but are visible in others. Initial news reports about the memos in The New York Times and other publications did not include the numbers."

Sarah Gantz and Ben Meyerson write in the Los Angeles Times: "The conclusion in recently released Justice Department memos that CIA interrogation techniques would not cause prolonged mental harm is disputed by some doctors and psychologists, who say that the mental damage incurred from the practices is significant and undeniable."

No kidding. See, for instance, this report from Physicians for Human Rights.

The Associated Press reports: "An Austrian newspaper quotes the U.N.'s top torture investigator as saying President Barack Obama's decision not to prosecute CIA operatives who used questionable interrogation practices violates international law.

"Manfred Nowak is quoted in Der Standard as saying the United States has committed itself under the U.N. Convention against Torture to make torture a crime and to prosecute those suspected of engaging in it."

Nevertheless, R. Jeffrey Smith writes in The Washington Post: "The Obama administration opposes any effort to prosecute those in the Justice Department who drafted legal memos authorizing harsh interrogations at secret CIA prisons, White House chief of staff Rahm Emanuel said yesterday....

"Emanuel's dismissal of the idea went beyond Obama's pledge not to prosecute CIA officers who acted on the Justice Department's legal advice."

The New York Times editorial board writes: "Until Americans and their leaders fully understand the rules the Bush administration concocted to justify such abuses — and who set the rules and who approved them — there is no hope of fixing a profoundly broken system of justice and ensuring that that these acts are never repeated.

"The abuses and the dangers do not end with the torture memos. Americans still know far too little about President Bush’s decision to illegally eavesdrop on Americans — a program that has since been given legal cover by the Congress."

Obama "has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution.

"That investigation should start with the lawyers who wrote these sickening memos."

Timothy Rutten writes in his Los Angeles Times column: "The president is whistling past the graveyard... when he insists that this is "a time for reflection, not retribution." Without facts, reflection is little more than daydreaming. That's why Sen. Patrick J. Leahy (D-Vt.) is right to call for a truth commission that can render an accurate historical accounting of the executive branch's shameful conduct over the last seven years.

"A truth commission is particularly important because of the public rhetoric of former Bush administration officials -- the very ones who pushed so hard behind closed doors for permission to torture and who have argued so strenuously that the legal memos ought to remain secret.

"These officials, foremost among them former Vice President Dick Cheney, have not simply argued that releasing the memos and renouncing the kind of interrogation they sanctioned is bad national security policy or legally mistaken. Instead, they've gone well beyond that and actually insisted that torture 'worked.'"

And oh boy! Cheney will be on Fox News with Sean Hannity tonight.