Torture Showdown Coming?

By Dan Froomkin
Special to washingtonpost.com
Wednesday, May 7, 2008; 12:24 PM

Some of the leading architects of the Bush administration's torture policies have agreed to appear before the House Judiciary Committee. But anyone hoping for an accountability moment may be in for disappointment.

Just because they're willing to show up for questioning, doesn't mean they'll be willing to give straight answers -- or any answers at all, for that matter.

Scott Shane writes in the New York Times: "A House panel investigating the Bush administration's approval for harsh interrogation methods voted Tuesday to issue a subpoena to David S. Addington, chief of staff to Vice President Dick Cheney and a primary proponent of the methods, which some legal experts have condemned as illegal torture.

"Two former administration officials -- John Ashcroft, who was attorney general, and John C. Yoo, who wrote legal opinions justifying harsh techniques -- have agreed to give public testimony to the panel, the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, staff members said. Their testimony and that of several other officials invited to speak at a future hearing might provide the fullest public account to date of the internal discussions that led the administration to break with American tradition in 2002 and authorize waterboarding and other physical pressure against terrorism suspects. . . .

"Mr. Ashcroft's testimony might shed new light on discussions of interrogation methods at the highest level of the administration. ABC News has reported that the so-called enhanced interrogation techniques used by the Central Intelligence Agency were approved after Mr. Ashcroft and other top officials discussed them at the White House."

Keith Perine writes for Congressional Quarterly: "In an April 18 letter, Cheney's office questioned whether lawmakers have the power to require him to appear, but in a May 1 letter said Addington is 'prepared to accept timely service' of a subpoena for testimony while 'reserving all legal authorities, immunities questions and privileges, including with respect to the lawfulness of the inquiry.' That could mean Addington will appear, but refuse to answer many questions.

"Besides Addington and Yoo, the Judiciary committee also wants to hear from former Attorney General John Ashcroft; former CIA director George Tenet; former Under Secretary of Defense Douglas J. Feith; and Daniel Levin, a former Justice Department official. Ashcroft, Feith and Levin have agreed to appear, and Tenet is in negotiations with committee staff. It is not clear when subsequent hearings will be held."

Carrie Johnson writes in The Washington Post: "Lawyers for the vice president have sought to limit the subjects about which Addington can be questioned, and committee sources say the scope of his testimony remains under negotiation. A former legal counsel to the vice president, Addington was a key player in formulating antiterrorism strategies after the Sept. 11, 2001, attacks. He has not previously discussed his views or his role in public."

As Shane notes, the subpoena vote took place at a hearing Tuesday during which "law professors called for a full investigation, by Congress or by an independent commission, of the adoption of the harsh techniques.

"Philippe Sands, author of a new book on the approval of coercive interrogation by high-level American military officials, said that if no such inquiry took place in the United States, foreign prosecutors might seek to charge American officials with authorizing torture. Mr. Sands, a British law professor, said two foreign prosecutors, whom he did not name, had asked him for the materials on which his book, 'Torture Team,' was based. 'If the U.S. doesn't address this,' he said, 'other countries will.'"

James Oliphant blogs for Tribune that Sands "said that the administration's statements that prisoner abuse at prisons such as Abu Ghraib was the result of the actions of rogue guards and others amounted to a cover-up. The administration, Sands said, 'claims that the impetus for the new interrogation techniques came from the bottom up. That is not true: the abuse was a result of pressures and actions driven from the highest levels of the administration.' . . .

"After the hearing, [House Judiciary Committee Chairman] Conyers noted that no witness was able to describe a 'ticking time bomb' scenario which would make extreme interrogation necessary.

"'Radio silence was the response when today's witnesses were asked to identify a single example of a true 'ticking bomb' scenario ever occurring, even though such scenarios are often invoked to justify torture,' Conyers said. 'These scholars, who have studied this issue extensively and have intimate knowledge of the legal authority the administration sought, could not identify a single example. I hope that the administration officials who have agreed to testify will shed some light on this and many other questions raised in today's hearing.'"

Here are the prepared statements from the witnesses at the Tuesday hearing.

Documentary filmmaker Errol Morris writes on huffingtonpost.com: "While I was working on Standard Operating Procedure, many people asked about 'the smoking gun.' 'Have you found the smoking gun? Have you found the smoking gun? -- presumably linking the abuses to the upper levels of the Defense Department and to the White House?' The question puzzles me. There are smoking guns everywhere but people don't see them, refuse to see them or pretend they don't exist. How many torture memos does an administration have to promulgate before the public gets the idea they are promulgating torture? Bush has recently admitted that he was present at these meetings and approved 'harsh interrogation techniques.' And yet this has scarcely been a news story. Well-documented attempts to subvert the Constitution, abrogation of the Geneva Conventions and simple human decency. What does it take?

"We are surrounded by smoking guns on all sides. Crimes have been committed; we have ample evidence of them. But there can be no justice if there is a failure to stand up for it, if we fail to demand it. . . .

"It is easy to dismiss all of this as the unfortunate product of war. But this is not about war, it is about us. How complacent have we become? What does it take? Each day that we allow these crimes to go unanswered erodes the very ideals that this country stands for."

White House E-Mail Watch

Dan Eggen writes in The Washington Post: "The Bush administration has not found disaster recovery files for White House e-mails from a three-month time period in 2003, according to court documents filed this week, raising the possibility that messages sent before and after the invasion of Iraq may never be recovered.

"The White House chief information officer, Theresa Payton, said in a sworn declaration that the White House has identified more than 400 computer backup tapes from March through September of 2003 but that the earliest recorded file was dated May 23 of that year.

"That period was one of the most crucial of the Bush presidency. The United States launched the invasion of Iraq on March 20, 2003, and President Bush declared the end of major combat operations on May 1. . . .

"Administration officials had acknowledged last year that thousands of e-mails might be missing from White House servers, but the administration has shifted course in recent months to arguing there is still no clear evidence of a problem. A White House spokesman declined to comment yesterday."

Here's a news release from the National Security Archive, one of the parties in the ongoing litigation.

"'What is most shocking is that if anyone at the White House was deleting their e-mails during the invasion of Iraq, those e-mails are not on any back-up tapes,' said Archive director Tom Blanton. . . .

"'The White House learned in October 2003 that e-mails from the Vice President's office may not have been preserved. In October 2005, EOP first discovered that potentially millions of e-mails were missing,' said Archive general counsel Meredith Fuchs. 'But in May 2008, the White House still can't figure out which e-mails are lost but continues to speculate that the e-mails "should" be on back-up tapes.'"

Here's a chronology of the litigation.

Here's the latest government filing. The White House was told to answer several questions, among them: "To resolve any ambiguities once and for all, EOP [the Executive Office of the President] is ordered to inform the Court on or before May 5, 2008, whether all back-up tapes created between March 2003 and October 2003 have been preserved -- and, to the extent that they have not, to state the specific dates within that time period for which no back-up tapes exist."

The answer: "OA [the White House Office of Administration] is preserving 438 disaster recovery back-up tapes that were written to between March 1, 2003 and September 30, 2003. Of those 438 tapes, the earliest date on which data was written on any of the 438 tapes is May 23, 2003. The latest date that data was written is September 29, 2003. In total, OA is presently preserving approximately 60,000 disaster recovery back-up tapes, and that number is growing. . . . Moreover, by the very nature of the disaster recovery backup tapes used by OA during this relevant time period, email information predating even March 2003 should be contained on the existing library of approximately 60,000 disaster recovery back-up tapes. That is because disaster recovery back-up tapes capture the 'files saved on the server, such as, for example, email databases and/or email environment information.' . . . The purpose of the disaster recovery back-up tapes, therefore, is to create a snapshot that 'captures all email information present on the EOP Network in the journals, the .pst archives, and the customer mailboxes at the time the back-up is created.' . . . A full set of disaster recovery backup tapes created in October 2003, for instance, should contain email information present on the EOP network, including Exchange servers, at the time of the backup, whatever their creation date. Such a backup should also include email messages residing in a user's inbox, sent folder, trash box, folders saved in the mailbox, as well as email information in the journals and .pst files stores. Accordingly, the disaster recovery backup system in use by EOP is not designed to capture just that email information created during the 24 hours preceding a backup, or since the last full set of backup tapes were created, but should capture emails sent or received in March 2003, for example, still residing on the EOP network in October 2003."

To which the obvious response is: Baloney.

For background, see my Feb. 27 column, Congress to Bush: You've Lost Mail.

Special Counsel Watch

Carrie Johnson and Christopher Lee write in The Washington Post: "Nearly two dozen federal agents yesterday raided the Washington headquarters of the agency that protects government whistle-blowers, as part of an intensifying criminal investigation of its leader, who is fighting allegations of improper political bias and obstruction of justice. . . .

"Office of Special Counsel chief Scott J. Bloch . . . has long been a target of criticism, some of it by his agency's career officials, but the FBI's abrupt seizure of computers and records marked a substantial escalation of the executive branch's probe of his conduct. Retired FBI agents and former prosecutors called the raid an unusual, if not unprecedented, intrusion on the work of a federal agency."

As Alice Crites and Lucy Shackelford explain in The Washington Post, one of Bloch's most controversial actions was his announcement in early 2007 of "a probe of White House aide Karl Rove, after a scandal over the firings of U.S. attorneys and a series of White House briefings at which political appointees were told which Republicans were in tight election races."

But there's much more to Bloch than that.

Philip Shenon writes in the New York Times that the counsel's office "has been in turmoil during much of the four-year tenure of Mr. Bloch, who has repeatedly been accused of using it to promote conservative social causes."

Yesterday's raid "followed accusations that Mr. Bloch had destroyed evidence on government computers that might demonstrate wrongdoing."

Richard B. Schmitt and Tom Hamburger write in the Los Angeles Times: "'The Bush administration has been unable to make up its mind whether to ignore him or to act against him,' said Tom Devine, legal director for the Government Accountability Project, a whistle-blower advocacy group. 'Mr. Bloch is finally being held accountable for the same cover-ups that he is supposed to be policing. It is a very positive step.'"

Lara Jakes Jordan writes for the Associated Press: "'It's like finding out that your town fire chief is an arsonist,' said Jeff Ruch, executive director of Public Employees for Environmental Protection, a whistle-blower group."

Saving Burma

Amy Kazmin writes in The Washington Post that as the number of dead and missing in the Burma cyclone soared past 60,000 Tuesday, "President Bush offered to send U.S. Navy units to help in the operation, and sharply criticized Burma's military-run government for delays in approving visas for emergency teams. Burmese dissident groups took issue with the timing of the administration's criticism, suggesting it could complicate the relief effort."

Kazmin writes that other foreign governments, including Western countries that usually spurn Burma's leaders as pariahs, have responded to the unprecedented appeal for international help in a way that "could presage the largest foreign engagement with Burma in its troubled history since it achieved independence from Britain in 1948.

"'There is a real potential for this to be a game-changing moment,' said Sean Turnell, a professor at Macquarie University in Sydney, Australia, and editor of Burma Economic Watch. He noted foreign offers to help Indonesia after its Aceh province was devastated in the 2004 Indian Ocean tsunami. 'After the tsunami, the whole conversation changed,' he said. The U.S. Navy helped with the effort in Aceh."

I wrote in yesterday's column about First Lady Laura Bush's belligerent response to the disaster.

Kazmin writes that "exiled Burmese political analyst Aung Naing Oo, who fled Burma in 1988 and is now based in Thailand, labeled Laura Bush's attack as 'totally and utterly inappropriate.'

"'She is trying to score political points out of people's disaster,' he said. 'That will clearly not go down well with anyone in Burma. This is about humanitarian issues -- people are dying. This is a time for the U.S. government to say, 'We are giving you money.' They don't need to score political points here.'

"Ye Htut, a Burmese government spokesman, also accused the first lady of politicizing the tragedy. 'I would like to say that what we are doing is better than the Bush administration response to the Katrina storm in 2005, if you compare the resources of the two countries,' he told reporters."

Seth Mydans writes in the New York Times that "some international aid workers and foreign leaders said they feared that political pressure could make it more difficult to deliver aid quickly. . . .

"Australia's foreign minister, Stephen Smith, was among those who urged countries to focus on helping Myanmar instead of criticizing its government. 'The priority now is rendering assistance to thousands of displaced people who urgently need our assistance,' Mr. Smith said in Hong Kong.

"Likewise, Joel Charny, vice president for policy at Refugees International, a Washington-based aid organization, said the Bush administration's approach could be counterproductive. 'To stand up and say, "One message is we want to help and the other message is the government is incompetent, and oh, by the way, tomorrow we're giving a Congressional medal to Aung San Suu Kyi," well, that gets their back up,' Mr. Charny said. 'I'm not saying the U.S. shouldn't have concerns about democracy. I'm saying that the idea is you try to make it easier rather than harder for the regime to take on international assistance.'

"White House officials countered that Myanmar's military leaders had long known the United States' position on human rights abuses there, and should be doing all they could to get help to the ravaged areas quickly.

"'Maybe it's time to bury their pride and finally help their people out for the first time in decades,' said Gordon D. Johndroe, a White House spokesman. . . .

"Mr. Bush said he was prepared to use Navy warships and aircraft 'to help find those who have lost their lives, to help find the missing, to help stabilize the situation.' Still, he added, 'In order to do so, the military junta must allow our disaster assessment teams into the country.'

"A Burmese political analyst called Mr. Bush's condition 'a cheap shot.' The analyst, Aung Nain Oo, who is based in Thailand, said: 'The people are dying. This is no time for a political message to be aired. This is a time for relief. No one is asking for anything like this except the United States.' . . .

"At the United Nations on Tuesday, Rashid Khalikov, director of the office for the coordination of humanitarian affairs,.... said that natural disasters presented major challenges for any government and that it was too soon to gauge the extent of Myanmar's cooperation with the international aid effort."

The Katrina Analogy

As for the elephant in the room, as it were, Thinkprogress notes the first lady's bitter words and writes: "In fact, equally harsh criticism could be leveled at President Bush" for his handling of Hurricanes Katrina.

FEC Watch

Paul Kane writes in The Washington Post: "President Bush sent three new nominees to the Senate yesterday for confirmation to the Federal Election Commission, but he refused to yield to Democratic objections on another nominee that have left the agency at a standstill. . . .

"Democrats have refused to confirm any new members because of Bush's nomination of former Justice Department lawyer Hans von Spakovsky, whom Democrats accuse of politically enforcing voting rights laws. . . .

"Democrats continued to oppose von Spakovsky and objected to the replacement of David M. Mason, one of two commissioners still serving on the six-member body. Mason earlier this year questioned the legality of Sen. John McCain (R-Ariz.) opting out of public financing."

Michael Luo writes in the New York Times: "The regulatory agency, which monitors compliance with federal election laws, for months has had only two commissioners out of a usual complement of six, leaving it without a quorum and powerless to act on complaints, issue advisory opinions and police the record spending in this year's presidential campaign."

The hang-up has been that Republicans wanted all the nominees voted on together. But Luo writes that White House spokeswoman Emily Lawrimore, "said Republican officials were now willing to allow each of the nominees to be voted upon separately."

Housing Watch

David M. Herszenhorn writes in the New York Times: "On the eve of a House floor debate on a plan to help homeowners in danger of foreclosure, the Bush administration said on Tuesday that it opposed the measure and that White House advisers would urge the president to veto it.

"The bill, championed by Representative Barney Frank, Democrat of Massachusetts, is expected to be approved Wednesday or Thursday. It would expand access to federally insured mortgages to help troubled homeowners refinance their loans.

"The administration, in a statement of opposition on Tuesday evening, called the bill 'overly burdensome and prescriptive' and said it would 'force' the Federal Housing Administration and taxpayers 'to take on excessive risk.' . . .

"In an interview, Mr. Frank said that a veto would be a sign that the president was abandoning efforts to help homeowners.

"'I think it would be a declaration that he's stopped trying to govern,' Mr. Frank said, as if the president were saying: ' "I'm through governing, let's just yell at each other for the rest of the year." '"

Bush this morning said the Democratic bill would "reward speculators and lenders" and vowed to veto it.

Karl Rove Watch

Karl Rove -- KARL ROVE!!! -- was Live Online on washingtonpost.com this morning.

He mostly took questions on campaign strategy. For instance:

"Washington: What's your advice to John McCain about embracing or distancing himself from President Bush?

"Karl Rove: He should do neither. He should define himself. To distance or embrace would be to choose someone else's path as opposed to defining his own and would be seen as calculation either way. As he defines himself he must have appropriate ways to differentiate himself from this administration. This is the task of any candidate running for president with an incumbent in the office. The American people are prospective in these elections, not retrospective. Differentiating yourself is seen as a natural expression of who you are and what you believe."

He was a bit snippy at times:

"Columbus, Ohio: You boldly predicted that Bush's approval ratings would rebound -- instead he is, according to Gallup, the most unpopular president in history. Will you finally admit that your vision for this nation has been overwhelmingly rejected by the majority of the people?

"Karl Rove: Get your facts right -- there are at least three president who had worse approval ratings, Truman, Johnson and Nixon. I'm absolutely positive history will be kind to this president, who made the right decisions in a difficult time for this nation.

"And what about those terribly low ratings for the Democratic Congress, which I suspect you're enormously proud of."

He notably didn't take any questions about the various scandals he's been associated with.

They Write Letters

Art Edwards reports for WDIV-TV in Detroit: "A Detroit public schools student, who sent a letter to President George W. Bush at the White House has a very prized possession, a letter he got back from the president. . . .

"Deiontay Watkins . . . started his letter to the president with a question about why he's sending so many young people to war.

"The president didn't specifically answer the question, but Deiontay is still thrilled with the written response. . . .

"The president wrote back saying he appreciated his thoughts, and encouraging him to study hard and learn something new every day."

Froomkin Watch

I'm taking a few days off. The column will resume on Tuesday. And no, I'm not going to Jenna's wedding.

Late Night Humor

Stephen Colbert opened his show last night with: "Has President Bush become a political liability? Please! The president doesn't know the meaning of the word."

Colbert then addressed the recent NBC/Wall Street Journal poll that found that more Americans are concerned about McCain's connection to Bush than Barack Obama's connection to Rev. Jeremiah Wright.

"In other words, the biggest political albatross heading into November is George Bush," Colbert said. "That -- that is a shame especially considering everything President Bush has done to ensure the extinction of albatrosses.

"And this poll brings us to tonight's word: Collateral friendage."

Jay Leno via U.S. News: "President Bush's daughter Jenna is getting married this weekend. There'll be 200 guests at wedding, which according the latest polls, means that 140 of those people at the wedding disapprove of the job President Bush is doing."

Cartoon Watch

Walt Handelsman on how Laura's doing a heck of a job; Pat Bagley on the difference between a hurricane and a typhoon; Kevin Siers on what Bush and Hillary Clinton have in common.

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