Cheney
Admits to War Crimes, Media Yawns, Obama Turns the Other
Cheek
17 February 2010By Jason Leopold
Dick Cheney is a sadist.
On Sunday, in an exclusive interview with Jonathan
Karl of ABC News' "This Week," Cheney proclaimed his
love of torture, derided the Obama administration for
outlawing the practice, and admitted that the Bush
White House ordered Justice Department attorneys to
fix the law around the administration's policy
interests.
"I was a big supporter of waterboarding," Cheney told
Karl, as if he were issuing a challenge to officials
in the current administration, including President
Barack Obama, who said flatly last year that
waterboarding is torture, to take action against him.
"I was a big supporter of the enhanced interrogation
techniques..."
The former vice president's declaration closely
follows admissions he made in December 2008, about a
month before the Bush administration exited the White
House, when he said he personally authorized the
torture of 33 suspected terrorist detainees and
approved the waterboarding of three so-called
“high-value” prisoners.
“I signed off on it; others did, as well, too,” Cheney
said in an interview with the right-wing Washington
Times about the waterboarding, a drowning technique
where a person is strapped to a board, his face
covered with a cloth and then water is poured over it.
It is a torture technique dating back at least to the
Spanish Inquisition.
The US has long treated waterboarding as a war crime
and has prosecuted Japanese soldiers for using it
against US troops during World War II. And Ronald
Reagan's Justice Department prosecuted a Texas sheriff
and three deputies for using the practice to get
confessions.
But Cheney's admissions back then, as well as those he
made on Sunday, went unchallenged by Karl and others
in the mainstream media. Indeed, the two major
national newspapers--The New York Times and The
Washington Post--characterized Cheney's interview as a
mere spat between the vice president and the Obama
administration over the direction of the latter's
counterterrorism and national security policies.
The Times and Post did not report that Cheney's
comments about waterboarding and his enthusiastic
support of torturing detainees amounted to an
admission of war crimes given that the president has
publicly stated that waterboarding is torture.
Ironically, in March 2003, after Iraqi troops captured
several US soldiers and let them be interviewed on
Iraqi TV, senior Bush administration officials
expressed outrage over this violation of the Geneva
Convention.
"If there is somebody captured," President George W.
Bush told reporters on March 23, 2003, "I expect those
people to be treated humanely. If not, the people who
mistreat the prisoners will be treated as war
criminals."
Nor did the Times or Post report that the "enhanced
interrogation techniques" Cheney backed was, in
numerous cases, administered to prisoners detained at
Guantanamo and in detention centers in Iraq and
Afghanistan who were innocent and simply in the wrong
place at the wrong time. The torture methods that
Cheney helped implement as official policy was also
directly responsible for the deaths of at least 100
detainees.
Renowned human rights attorney and Harper's magazine
contributor Scott Horton said, "Section 2340A of the
federal criminal code makes it an offense to torture
or to conspire to torture. Violators are subject to
jail terms or to death in appropriate cases, as where
death results from the application of torture
techniques."
In addition to Obama, Attorney General Eric Holder
said during his confirmation hearing last year that
waterboarding is torture.
"Dick Cheney wants to be prosecuted. And prosecutors
should give him what he wants," Horton wrote in a
Harper's dispatch Monday.
Karl also made no mention of the fact that the CIA's
own watchdog concluded in a report declassified last
year that the torture of detainees Cheney signed off
on did not result in any actionable intelligence nor
did it thwart any imminent attacks on the United
States. To the contrary, torture led to bogus
information, wrongful elevated threat warnings, and
undermined the war-crimes charges against Mohammed al-Qahtani,
the alleged “20th hijacker” in the 9/11 attacks
because the evidence against him was obtained through
torture.
Karl also failed to call out Cheney on a statement the
former vice president made during his interview in
which he suggested the policy of torture was carried
out only after the Bush administration told Justice
Department attorneys it wanted the legal justification
to subject suspected al-Qaeda prisoners to brutal
interrogation methods.
Cheney told Karl that he continues to be critical of
the Obama administration "because there were some
things being said, especially after we left office,
about prosecuting CIA personnel that had carried out
our counterterrorism policy or disbarring lawyers in
the Justice Department who had -- had helped us put
those policies together, and I was deeply offended by
that, and I thought it was important that some senior
person in the administration stand up and defend those
people who'd done what we asked them to do."
In an interview with Karl on December 15, 2008, Cheney
made a similar comment, which Karl also allowed to go
unchallenged, stating that the Bush administration
"had the Justice Department issue the requisite
opinions in order to know where the bright lines were
that you could not cross."
Bush's Key Line of Defense Destroyed
Those statements, both on Sunday and in his December
2008 interview with Karl, destroys a key line in the
Bush administration's defense against war crimes
charges. For years, Cheney and other Bush
administration officials pinned their defense on the
fact that they had received legal advice from Justice
Department lawyers that the brutal interrogations of
“war on terror” detainees did not constitute torture
or violate other laws of war.
Cheney's statements, however, would suggest that the
lawyers were colluding with administration officials
in setting policy, rather than providing objective
legal analysis.
In fact, as I reported last year, an investigation by
the Department of Justice's Office of Professional
Responsibility (OPR) determined that DOJ attorneys
John Yoo and Jay Bybee blurred the lines between
attorneys charged with providing independent legal
advice to the White House and policy advocates who
were working to advance the administration’s goals,
according to legal sources who were privy to an
original draft of the OPR report.
That was a conclusion Dawn Johnsen reached. Johnsen
was tapped a year ago by Obama to head the Office of
Legal Counsel (OLC), where Yoo and Bybee worked, but
her confirmation has been stuck in limbo.
In a 2006 Indiana Law Journal article, she said the
function of OLC should be to “provide an accurate and
honest appraisal of applicable law, even if that
advice will constrain the administration’s pursuit of
desired policies.”
“The advocacy model of lawyering, in which lawyers
craft merely plausible legal arguments to support
their clients’ desired actions, inadequately promotes
the President’s constitutional obligation to ensure
the legality of executive action,” said Johnsen, who
served in the OLC under President Bill Clinton. "In
short, OLC must be prepared to say no to the
President.
“For OLC instead to distort its legal analysis to
support preferred policy outcomes undermines the rule
of law and our democratic system of government.
Perhaps most essential to avoiding a culture in which
OLC becomes merely an advocate of the Administration's
policy preferences is transparency in the specific
legal interpretations that inform executive action, as
well as in the general governing processes and
standards followed in formulating that legal advice.”
In a 2007 UCLA Law Review article, Johnsen said Yoo’s
Aug. 1, 2002, torture memo is “unmistakably” an
“advocacy piece.”
"OLC abandoned fundamental practices of principled and
balanced legal interpretation,” Johnsen wrote. "The
Torture Opinion relentlessly seeks to circumvent all
legal limits on the CIA’s ability to engage in
torture, and it simply ignores arguments to the
contrary.
"The Opinion fails, for example, to cite highly
relevant precedent, regulations, and even
constitutional provisions, and it misuses sources upon
which it does rely. Yoo remains almost alone in
continuing to assert that the Torture Opinion was
‘entirely accurate’ and not outcome driven."
The original draft of the OPR report concluded that
Yoo and Bybee violated professional standards and
recommended a referral to state bar associations where
they could have faced disciplinary action and have had
their law licenses revoked.
The report's findings could have influenced whether
George W. Bush, Cheney and other senior officials in
that administration were held accountable for torture
and other war crimes. But two weeks ago, it was
revealed that officials in Obama's Justice Department
backed off the earlier recommendation and instead
altered the misconduct findings against Yoo and Bybee
to "poor judgment," which means neither will face
disciplinary action. The report has not yet been
released.
For his part, Yoo had already admitted in no uncertain
terms that Bush administration officials sought to
legalize torture and that he and Bybee fixed the law
around the Bush administration’s policy.
As I noted in a report last year, in his book, "War by
Other Means: An Insider’s Account on the War On
Terror," Yoo described his participation in meetings
that helped develop the controversial policies for the
treatment of detainees.
For instance, Yoo wrote about a trip he took to
Guantanamo Bay, Cuba, with other senior administration
officials to observe interrogations and to join in
discussions about specific interrogation methods. In
other words, Yoo was not acting as an independent
attorney providing the White House with unbiased legal
advice but was more of an advocate for administration
policy.
The meetings that Yoo described appear similar to
those disclosed by ABC News in April 2008.
“The most senior Bush administration officials
repeatedly discussed and approved specific details of
exactly how high-value al-Qaeda suspects would be
interrogated by the CIA,” ABC News reported at the
time, citing unnamed sources.
"The high-level discussions about these ‘enhanced
interrogation techniques’ were so detailed, these
sources said, some of the interrogation sessions were
almost choreographed – down to the number of times CIA
agents could use a specific tactic.
"These top advisers signed off on how the CIA would
interrogate top al-Qaeda suspects – whether they would
be slapped, pushed, deprived of sleep or subjected to
simulated drowning, called waterboarding," according
to unnamed sources quoted by ABC News.
Torture Preceded Legal Advice
If ABC's Karl had a firmer grasp on the issues he
queried Cheney about he would have known that as
recently as last week, three UK high-court judges
released seven paragraphs of a previously classified
intelligence document that proved the CIA tortured
Binyam Mohamed, a British resident captured in
Pakistan in April 2002 who was falsely tied to a dirty
bomb plot, months before the Bush administration
obtained a memo from John Yoo and Jay Bybee at the
Justice Department's Office of Legal Counsel (OLC)
authorizing specific methods of torture to be used
against high-value detainees, further undercutting
Cheney's line of defense.
The document stated bluntly that Mohamed's treatment
"could readily be contended to be at the very least
cruel, inhuman and degrading treatment by the United
States authorities."
Obama Turns A Blind Eye to Crimes
Under the United Nations Convention Against Torture,
the treatment of Mohamed and the clear record that the
Bush administration used waterboarding and other
brutal techniques to extract information from
detainees should have triggered the United States to
conduct a full investigation and to prosecute the
offenders. In the case of the US's refusal to do so,
other nations would be obligated to act under the
principle of universality.
However, instead of living up to that treaty
commitment, the Obama administration has time and
again resisted calls for government investigations and
has gone to court to block lawsuits that demand
release of torture evidence or seek civil penalties
against officials implicated in the torture.
Though it's true, as Vice President Joe Biden stated
Sunday on "Meet the Press," that Cheney is rewriting
history and making "factually, substantively wrong"
statements about the Obama administration's track
record and approach to counterterrorism, it's
difficult, if not near impossible, to defend this
president from the likes of Cheney because he has
steadfastly refused to hold anyone in the Bush
administration accountable for the crime of torture.
Case in point: last week the Obama administration
treated the disclosure by British judicial officials
of Mohamed's torture as a security breach and
threatened to cut off an intelligence sharing
arrangement with the UK government.
In what can only be described as a stunning response
to the revelations contained in the intelligence
document, White House spokesman Ben LaBolt said "the
[UK} court's judgment will complicate the
confidentiality of our intelligence-sharing
relationship with the UK, and it will have to factor
into our decision-making going forward."
"We're deeply disappointed with the court's judgment
today, because we shared this information in
confidence and with certain expectations," LaBolt
said, making no mention of Mohamed's treatment nor
even offering him an apology for the torture he was
subjected to by the CIA over the course of several
years. Mohamed was released from Guantanamo last year
and returned to the UK.
As an aside, as revelatory as the disclosures were,
news reports of Mohamed's torture were buried by the
mainstream print media and went unreported by the
cable news outlets, underscoring how the media's
interest in Bush's torture policies has waned.
The Obama administration's decision to ignore the past
administration's crimes has alienated civil liberties
groups, who he could once count on for support.
Last December, on the day Obama received a Nobel Peace
prize, Jameel Jaffer, director of the ACLU’s National
Security Project, told reporters "on every front, the
[Obama] administration is actively obstructing
accountability. This administration is shielding Bush
administration officials from civil liability,
criminal investigation and even public scrutiny for
their role in authorizing torture."
Cheney's Attacks Unfounded
That being the reality is what makes Cheney's claim on
Sunday that the Obama administration is attempting to
prosecute "CIA personnel that had carried out our
counterterrorism policy or disbarring lawyers"
laughable.
Holder has expanded the mandate of a special counsel,
appointed during the Bush administration, who is
investigating the destruction of torture tapes, to
conduct a “preliminary review” of less than a dozen
torture cases involving CIA contractors and
interrogators to determine whether launching an
expanded criminal inquiry is warranted. That hardly
amounts to a prosecution. It's not even an
investigation.
And "disbarring lawyers, a clear reference to Yoo and
Bybee, which is beyond the scope of the Justice
Department watchdog's authority to begin with, is no
longer a possibility given that the OPR report
reportedly does not recommend disciplinary action.
In a statement, the ACLU said, "to date, not a single
torture victim has had his day in court."
As Jane Mayer reported in a recent issue of the New
Yorker, Holder's limited scope authorization to Durham
did not go over well with the White House and Obama's
Chief of Staff Rahm Emanuel made sure Holder knew
where the administration stood.
"Emanuel worried that such investigations would
alienate the intelligence community..." Mayer wrote.
"Emanuel couldn’t complain directly to Holder without
violating strictures against political interference in
prosecutorial decisions. But he conveyed his
unhappiness to Holder indirectly, two sources said.
Emanuel demanded, 'Didn’t he get the memo that we’re
not re-litigating the past?'"
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