By Dan Froomkin
Special to washingtonpost.com
Friday, December 14, 2007; 12:50 PM
President Bush's repeated insistence that "we don't torture" appeared even more transparently bogus yesterday as the White House threatened to veto a House bill that would explicitly ban a variety of abhorrent practices.
The bill would require U.S. intelligence agencies to follow interrogation rules adopted by the armed forces last year.
What does that mean? As Pamela Hess writes for the Associated Press, those rules explicitly prohibit "forcing detainees to be naked, perform sexual acts, or pose in a sexual manner; placing hoods or sacks over detainees' heads or duct tape over their eyes; beating, shocking, or burning detainees; threatening them with military dogs; exposing them to extreme heat or cold; conducting mock executions; depriving them of food, water, or medical care; and waterboarding."
Administration officials have consistently refused to confirm or deny whether any of those methods have been sanctioned by the White House and are in use. But really all you need to know is this: According to yesterday's formal statement of administration policy, limiting intelligence agencies to the army rules "would prevent the United States from conducting lawful interrogations of senior al Qaeda terrorists to obtain intelligence needed to protect Americans from attack."
The White House then asserted, without a scintilla of evidence (see Tuesday's column): "Such interrogations have helped the United States disrupt multiple attacks against Americans at home and abroad, thus saving American lives."
Joby Warrick and Walter Pincus write in The Washington Post that the legislation's passage "set[s] up another political showdown over what constitutes torture. . . .
"The Detainee Treatment Act of 2005 made the Army Field Manual applicable to all Defense Department employees, but it left a loophole allowing the CIA to use aggressive techniques barred by that document. . . .
"Retired Army Gen. Paul J. Kern, a lead investigator of the abuse at the Abu Ghraib prison in Iraq, said he thinks that having two sets of standards for interrogation -- one for the CIA and another for the military -- has created problems of credibility and accountability. Kern, who signed a letter along with 27 other retired general officers asking the intelligence committees to hold the CIA to the military's rules, endorsed the standards set by the military.
"'We ought to have one set of standards, period,' Kern said."The Contempt Conundrum
Paul Kane writes in The Washington Post: "A Senate panel found former presidential adviser Karl Rove and current White House Chief of Staff Joshua B. Bolten in contempt of Congress yesterday for refusing to testify and to turn over documents in the investigation of the firings of nine U.S. attorneys last year.
"The Senate Judiciary Committee approved contempt citations against Rove and Bolten on a 12 to 7 vote, rejecting the White House position that the work of two of President Bush's closest advisers is covered by executive privilege. . . .
"Two senior Republicans, Sens. Arlen Specter (Pa.) and Charles E. Grassley (Iowa), supported the contempt charges. . . .
"The White House yesterday repeated its offer to allow Rove and other current and former senior aides to testify about the firings behind closed doors, not under oath and with no transcript. White House press secretary Dana Perino said the Justice Department would refuse to convene a grand jury if either the full House or the full Senate approved the contempt citations; that would leave Democrats unable to force the question of the limits of executive privilege into the federal courts."
The White House position, of course, exposes an amazing conundrum: That the same Justice Department whose politicization is being investigated is also in a position to hand out get-out-of-testifying-free cards.
Here's what Perino had to say at yesterday's press briefing: "[T]he Democrats should know the futility of trying to press ahead with a criminal case. It's long been understood that the Justice Department, in situations like these -- that the constitutional prerogative of the President would make it a futile effort for Congress to refer contempt citations to U.S. attorneys. The Department of Justice would not require a U.S. attorney to convene a grand jury or otherwise pursue a prosecution of an individual who carries out a President's instruction not to provide documents or testimony on the basis of the President's assertion of executive privilege.
"And it's interesting that the Chairman of the Judiciary Committee, who called for this vote today, actually summed it up back in September of 1999, when he said exactly that -- that it would be futile in order to request certain documents or testimony. And I can give you the full citation later."
John Bresnahan reports for Politico.com that Perino later explained: "Senator Leahy may have summed it best in September 1999 when he said the following: 'The criminal contempt mechanism, see 2 U.S.C. section 192, which punishes as a misdemeanor a refusal to testify or produce documents to Congress, requires a referral to the Justice Department, which is not likely to pursue compliance in the likely event that the President asserts executive privilege in response to the request for certain documents or testimony.'"
But what's at issue today is whether Bush's assertion of executive privilege here is supported by the facts -- and whether the Justice Department is able to take an objective position on the issue.
In a November 29 memo about this assertion of privilege, Leahy found that the "complete lack of particularity of the White House claims, including the lack of a privilege log or any specific factual basis for the privilege claims, makes the scope of the claims improper." And he called the assertion of executive privilege on behalf of the president "surprising in light of the significant and uncontroverted evidence that the President had no involvement" in the firings of the U.S. Attorneys.
David Stout writes in the New York Times that "in practice, disputes between Congress and the White House in which the specter of contempt charges has been raised have typically been settled well short of the jailhouse door."
But the White House so far has categorically refused to negotiate.Mukasey's View
Attorney General Michael Mukasey may end up playing a key role here, and one that may test his independence from the White House.
During his confirmation hearings, Mukasey indicated that he would back the White House position. But the linchpin for him was that this assertion of privilege was supported in a letter from the department's Solicitor General Paul D. Clement, itself based on a review by the Office of Legal Counsel.
Mukasey said it would be untenable for the Department of Justice "to prosecute someone who followed the advice that originated with the Department of Justice."
But in that letter, Clement took an expansive view of a privilege that many scholars say is actually quite limited. And he further argued: "Congressional interest in investigating the replacement of U.S. Attorneys clearly falls outside its core constitutional responsibilities, and any legitimate interest Congress may have in the disclosed communications has been satisfied by the Department's extraordinary accommodation involving the extensive production of documents to the Committees, interviews, and hearing testimony concerning these communications."
White House Counsel Fred Fielding then cited Clement's letter as the rationale for his assertion that Rove was absolutely immune from congressional oversight.
When Leahy asked Mukasey if he would review the underlying legal opinion once he became attorney general, Mukasey said he would.What's Next
No further action on the contempt citation is expected anytime soon. The House Judiciary Committee cited Bolten and former White House counsel Harriet E. Miers for contempt in July, but nobody is expecting floor action by either chamber until at least late January.
And yet, the White House's blithe assertion of its prerogatives is sure to reignite debate over one Congressional option that doesn't depend on Justice Department cooperation.
As Adam Cohen wrote in a New York Times opinion piece earlier this month: "If the Justice Department refuses to enforce the subpoenas, as seems likely, Congress will have to decide whether to do so. Washington lawyers are dusting off an old but apparently sturdy doctrine called 'inherent contempt' that gives Congress the power to bring the recalcitrant witnesses in -- by force, if necessary."Poll Watch
Jennifer Agiesta and Jon Cohen write in The Washington Post that "a new Washington Post-ABC News poll finds discontent toward the war easing slightly, with Republicans and independents significantly more positive about the situation than they were 12 months ago.
"Baseline judgments about the war are unchanged -- six in 10 in the poll said the war is not worth fighting -- but the public is somewhat more upbeat about progress in Iraq. . . .
"Although a majority say the United States is not making significant gains toward restoring civil order in Iraq, the public's views are more positive than at this time last year. About four in 10 say the United States is making progress, an increase of 10 percentage points over last year. . . .
"Bush's overall approval rating, at 33 percent, remains at his career low point in Post-ABC polling, with 64 percent disapproving. The percentage of Americans approving of the president has been the same since July and has been under 50 percent for more than 2 1/2 years."
The story's headline in particular indicated good news for Bush: "Poll Shows More Optimism on War; After Record Lows, Bush Gains With Republicans, Independents."
But what the poll really shows, in a nutshell, is that despite feeling a bit less profoundly pessimistic about the war, the public is still overwhelmingly against it and continues to disapprove of Bush by a whopping 2 to 1 margin.
A closer look at the actual poll results also shows that Bush's approval ratings on the war have not in fact improved -- they've been up and down ever since his career low of 28 last December. Indeed, his ratings on the war were higher in January and early September than they are now. And the percentage of Americans who think the war was not worth fighting is actually higher now than it was in late September.
The one number that is definitely trending upwards is the percentage of people who think the United States is making significant progress toward restoring civil order in Iraq. But it's still only 41 percent.
The Post's question on withdrawal is poorly phrased: "Do you think the United States should keep its military forces in Iraq until civil order is restored there, even if that means continued U.S. military casualties, or do you think the United States should withdraw its military forces from Iraq in order to avoid further U.S. military casualties, even if that means civil order is not restored there?"
But even given such a limited choice, 53 percent of those polled last week said troops should be withdrawn, down a few points from the summer, but still up considerably from last year.Bush v. Congress
Sheryl Gay Stolberg writes in the New York Times that Bush's recent legislative victories (see yesterday's column, Congress Goes Belly Up) "underscore the surprising amount of clout that Mr. Bush still wields against a Democratic-run Congress. Late in his presidency, with his poll numbers stuck at record lows, he has been able to persuade Republicans to stick with him."
But, Stolberg writes: "Unlike presidents before him, Mr. Bush has not used the power of the Oval Office to hammer out a compromise with his legislative foes. Instead, he has vetoed bills he does not like, refused to budge on spending limits and let his subordinates do the negotiating -- a strategy that has his critics, including some Republicans, wondering why the most powerful dealmaker in Washington is not practicing the art of the deal. . . .
"When the White House and Congress are at an impasse, these critics argue, there is both symbolic and practical value for a president who appears to rise above party politics by trying to broker a deal."
E. J. Dionne Jr. writes in his Washington Post opinion column: "If Bush's strategy is to drag Congress down to his low level of public esteem, he is succeeding brilliantly. A Post-ABC News poll released this week found that only 33 percent of Americans approved of Bush's handling of his job -- and just 32 percent felt positively about Congress's performance. The only comfort for Democrats: The public dislikes Republicans in Congress (32 percent approval) even more than it dislikes congressional Democrats (40 percent approval).
"The Democrats' core problem is that they have been unable to place blame for gridlock where it largely belongs, on the Republican minority and the president."
The New York Times editorial board writes that "Congress certainly has not done [its] job. For six years, it stood by mutely or actively approved as President Bush's team cooked the books to justify war, drew the nation's electronic spies into illegal wiretapping and turned intelligence agents and uniformed soldiers into torturers at outlaw prisons.
"Now, with the opposition party in control on Capitol Hill, lawmakers have a chance to start setting right some wrongs in these areas. But there are disturbing signs that they will once again fail to do what is needed."
Among other things, the Times calls for the completion of a long-awaited Senate Intelligence Committee report "into what Mr. Bush and other officials knew about the intelligence on Iraq's weapons when they used it to stampede the country into war. . . .
"Americans need to know what Mr. Bush knew on both Iraq and Iran, and when he knew it. Anything less is unacceptable."Bush in '08
Thomas M. DeFrank writes in the New York Daily News: "Thirteen months before the 2008 election, GOP officials and contenders face not only the albatross of Bush's unpopularity, but a surprising lack of interest from the party's leader in their fate.
"Some Republicans believe the White House is too consumed with the Iraq war and its legislative agenda to pay enough attention to the battle for the presidency.
"'The White House political machine is very different without Karl [Rove],' a prominent GOP powerbroker said. 'They're somewhat disconnected from the campaign for the first time I can remember.'
"'They don't realize Bush's legacy in large measure is tied up in whether a Republican succeeds him or not,' a Republican mandarin told the Daily News. 'If a Democrat wins, the conclusion will be that eight years of George W. Bush have been repudiated by the American people. There's no coordination, no togetherness.'"
At the same time, it's amazing how averse the Republican candidates are to mentioning the president. Bush's name was uttered only twice during the GOP's two-hour CNN/YouTube debate on Nov. 8. At the Dec. 9 Univision debate in Miami, the name Bush was mentioned once, by Sen. John McCain -- and McCain was referring to the president's brother Jeb, the former governor of Florida. At Wednesday's Des Moines Register debate, the Bush name again came up only once -- this time, it was former governor Mitt Romney talking about the current president's dad.
And yet, what the GOP candidates think of the Bush presidency -- what they consider its strengths and weaknesses, which elements they would emulate, which they would reject -- is crucial information for figuring out what they would be like as presidents themselves.
There is one way to get the candidates to address the Bush legacy in their debates or elsewhere. And that's to ask them. At NiemanWatchdog.org, where I am deputy editor, I suggest some questions.MSNBC Watch
Over at MSNBC, it's been beat-on-Bush week. Keith Olbermann on Monday launched a new segment called "Bushed -- "a reminder of late developments or lack thereof in the other Bush administration scandals pushed off the front page by the Bush administration scandal du jour." And Dan Abrams, in his swan-song as a late-night host, anchored a week-long series he called "Bush League Justice."
Abrams blogged: "Bush League Justice is a series that stems from my increasing frustration and outrage over how the Bush administration has politicized the usually apolitical Justice Department. In the process, it has significantly abused its authority to try to enhance power at the expense of any sense of objective justice. Many of the administration's most controversial maneuvers have been widely reported, from the torture memos to the NSA's warrantless searches to the U.S. Attorney scandal to the appointment of only the most conservative of judges and justices.
"But that is really just the tip of this administration's ongoing effort to uproot the Justice Department . . . . [T]hey have regularly circumvented Congress, and decimated some of the most fundamental and cherished principles that define justice in this country."
Full transcripts of both shows are available here.
On Wednesday night, Abrams took up one of my favorite subject: Bush's signing statements. Among his guests: Boston Globe reporter Charlie Savage. Said Abrams: "It's astounding to me how they continue to get away with this, and no one, apart from Charlie Savage and a few others have been making a big deal."
Harpers blogger Scott Horton joined Abrams last night for a discussion of the possibly politically-motivated federal prosecution of Democratic former Alabama Gov. Don Siegelman. Horton blogs: "As Abrams said, the prosecutors have had a pass on their completely outrageous conduct for far too long, and now it's time for the mainstream media to keep on top of them and expose the extremely seedy underside of a political hit job."
He adds: "I am hearing from three different news groups suggestions that each is close to breaking a significant further lead in this case. The new information, it was suggested, will show that prosecutors in the case used evidence that they knew, or had substantial reason to know, was simply false, and will link Karl Rove much more closely to Alabama Governor Bob Riley and to the plans to 'get' Siegelman using a false corruption charge. The journalists in question are pushing for further corroboration before going with these stories, but I am still expecting more by the end of the year."Recess Watch
Al Kamen writes in The Washington Post: "Christmas is usually a time when controversial nominees for top federal jobs wait for Santa, in the form of the president of the United States, to come down the chimney with their recess appointments.
"Maybe not this year. Word is Senate Majority Leader Harry Reid (D-Nev.), in order to prevent President Bush from handing out those goodies, is now thinking about keeping the Senate in session during the Christmas-New Year's break. . . .
"The unusual maneuver, which Reid first used during the recent Thanksgiving vacation, would block Bush from using his constitutional power -- derived from the days when the Senate could be out of session for months -- to fill vacancies. Such appointments made now would be valid through the end of Bush's presidency."Bush on Steroids
Deb Riechmann writes for the Associated Press: "President Bush said Friday that baseball players and owners must take seriously the Mitchell Report on steroid use, but cautioned against jumping to conclusions about the individuals named.
"'My hope is that this report is a part of putting the steroid era of baseball behind us,' he said, surrounded by Cabinet members in the Rose Garden.
"Bush, who once owned the Texas Rangers, said, the Mitchell Report means that 'we can jump to this conclusion: that steroids have sullied the game.'"
Perino pointed to an ESPN interview in which he said that he's thought long and hard about it, but doesn't recall ever seeing or hearing evidence of a steroid problem.
Writes McKinnon: "A Fox News reporter, Wendell Goler, pointed out that former Ranger Jose Canseco has said 'he cannot comprehend why Mr. Bush didn't know that steroid use was going on on the team.' So does Bush regret not picking up on the problem, Goler asked?
"'I don't think it's a time for regret,' Perino said. 'I think it's time to do what the president has done, which is . . . to shine a light on the issue. And now we have a result . . . a report that is getting a lot of attention, and deservedly so.'"Holiday Party Watch
The Houston Chronicle's Julie Mason and FishbowlDC's Patrick Gavin photoblog last night's White House holiday party for print reporters. TVNewser lists some of the bold-faced names from the broadcast party. I guess my invitation was lost in the mail.Cartoon Watch
Slate presents Mark Fiore's "Learn to speak intel" -- starring President Bush. "We'll learn to conjugate fear," the Bush character says. "My favorite tense is future infinite incarcerative. . . . And of course another of my favorite tenses: The president perfect rhetorical. . . . Booga booga!"