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Do We Torture?

By Dan Froomkin
Special to washingtonpost.com
Monday, July 23, 2007; 2:06 PM

The White House's Friday afternoon rollout of its new policy on torture was a marvel of loopholes and obfuscation regarding what should be a crystal-clear moral issue.

"We don't torture" ought to be one of our nation's credos. As it happens, it is President Bush's stock response when asked to describe U.S. policy. But this latest official razzle-dazzle still leaves unclear what Bush and his aides mean when they use the word.

Friday's executive order -- compounded by a series of nonresponsive press statements by senior administration officials -- appears to leave CIA interrogators with considerable latitude to engage in harsh tactics that most people would likely consider torture.

Putting anything on paper at all was a grudging acknowledgment of the Supreme Court's decision last summer that all U.S. prisoners are covered by Geneva Convention protections against degrading treatment. And White House officials acknowledge that some tactics previously used on suspected terrorists in secret CIA prisons have now been ruled out.

But the White House still refuses to say which tactics are banned and which are OK. To Bush and his aides, the right of Americans to know what is being done in our name is outweighed by their dubious conviction that such information would serve the enemy. Instead, a White House beset by credibility problems is asking us to trust it.

I don't often quote Fox News host Bill O'Reilly, but as I wrote in my Oct. 18, 2006, column, O'Reilly asked Bush exactly the right question in his interview with the president the previous day.

After Bush refused to talk about individual tactics, O'Reilly asked in frustration: "But if the public doesn't know what torture is or is not, as defined by the Bush Administration, how can the public make a decision on whether your policy is right or wrong?"

That question remains unanswered.

The Coverage

Here is Bush's executive order on torture, the official White House statement, and the transcript of a tragi-comically unforthcoming press briefing by anonymous senior administration officials.

Karen DeYoung writes in The Washington Post: "President Bush set broad legal boundaries for the CIA's harsh interrogation of terrorism suspects yesterday, allowing the intelligence agency to resume a program that was suspended last year after criticism that it violated U.S. and international law.

"In an executive order lacking any details about actual interrogation techniques, Bush said the CIA program will now comply with a Geneva Conventions prohibition against 'outrages upon personal dignity, in particular humiliating and degrading treatment.' His order, required by legislation signed in October, was delayed for months amid tense debate inside the administration. . . .

"Two administration officials said that suspects now in U.S. custody could be moved immediately into the 'enhanced interrogation' program and subjected to techniques that go beyond those allowed by the U.S. military.

"Rights activists criticized Bush's order for failing to spell out which techniques are now approved or prohibited. . . .

"'All the order really does is to have the president say, "Everything in that other document that I'm not showing you is legal -- trust me," ' said Tom Malinowski of Human Rights Watch."

William Douglas and Jonathan S. Landay write for McClatchy Newspapers: "Some experts in human-rights law said Bush's order contains 'loopholes' that would allow the CIA to continue using aggressive interrogation techniques that others would consider torture.

The order "'prohibits willful and outrageous acts of abuse, but only does so where the purpose is to humiliate and degrade an individual. But if an interrogator says these techniques, whether it's water-boarding or stress techniques, are done to elicit information, but not humiliate a detainee, they could argue that that would not run afoul of the executive order,' said Jonathan Hafetz, a lawyer with New York University School of Law's Brennan Center for Justice, which has represented detainees held by the United States.

"'The same thing goes for acts to denigrate someone's religion. If you took away someone's Quran not to denigrate, but as an interrogation technique to gain information -- which they've done in the past -- they could argue it was allowed under the order,' he said. . . .

"'Let's not forget that the administration's theory of executive authority is very broad. They reserve the right to interpret laws in ways no one agrees with in emergency situations,' said John Sifton of Human Rights Watch, a nonprofit activist group."

And Sifton said that the CIA program under Bush's order remains in violation of international law. "'Put torture to the side for a second. The CIA detention program, even if no mistreatment is occurring, is still illegal under international law because it allows incommunicado, indefinite detention. That is enforced disappearance. That exists entirely outside the rule of law,' he said."

Charlie Savage writes in the Boston Globe that "most of the president's executive order is written in generalities, leaving unanswered whether the CIA will be free to subject prisoners to a range of specific techniques it has reportedly used in the past, including long-term sleep disruption, prolonged shackling in painful stress positions, or 'waterboarding,' a technique that produces the sensation of drowning.

"The administration is separately crafting a list of permitted and forbidden tactics that it said will comply with Bush's executive order, but the list is classified. In a background conference call with reporters yesterday, a senior administration official declined to say whether the new guidelines will permit tactics such as waterboarding.

"'I am not in a position to talk about any specific interrogation practices,' the official said. 'It is impossible for us, consistent with the objectives of such a program, to publicize to the enemy what practices may be on the table and what practices may be off the table. That will only enable Al Qaeda to train against those that are on or off.'"

Mark Mazzetti writes in the New York Times that the order "does not authorize the full set of harsh interrogation methods used by the C.I.A. since the program began in 2002. But government officials said the rules would still allow some techniques more severe than those used in interrogations by military personnel in places like the detention center in Guantánamo Bay, Cuba.

"Several officials said the permitted techniques did not include some of the most controversial past techniques, among them 'waterboarding,' which induces a feeling of drowning, and exposure to extremes of heat and cold. . . .

"Earlier this year, State Department officials rejected a draft of the executive order because they believed that the language was too permissive and could open the Bush administration to challenges from American allies that the White House was legalizing methods that approach torture. Some Bush administration officials, including members of Vice President Dick Cheney's staff, pushed for a more expansive interpretation of Geneva Convention language and for interrogation methods that the C.I.A. had not even requested."

Greg Miller writes in the Los Angeles Times: "The order places no restriction on employing coercive methods -- such as sleep deprivation and the use of so-called stress positions -- that are expressly off-limits for the military and domestic law enforcement agencies. . . .

"Critics called Bush's order frustratingly vague and said its most specific language addressed abuses that occurred at Abu Ghraib and other military facilities that were never part of the CIA's interrogation program. . . .

"'It certainly was a positive thing to see express prohibitions on things like sexual humiliation,' said Jumana Musa, advocacy director for Amnesty International in Washington. 'But the places where [the document] is silent speak volumes.'"

On the Sunday Shows

National Intelligence Director Mike McConnell was on NBC's Meet the Press yesterday.

Ben Feller writes for the Associated Press: "The nation's spy chief on Sunday would not identify what CIA interrogators are allowed to do in getting information from terror suspects, but tried to assure critics that torture is not condoned or used. . . .

"When asked if the permissible techniques would be troubling to the American people if the enemy used them against a U.S. citizen, McConnell said: 'I would not want a U.S. citizen to go through the process. But it is not torture, and there would be no permanent damage to that citizen.'"

The United States's international reputation may have been irreparably damaged by our association with torture, but in McConnell's view, our ambiguity on the issue has served us well.

Speaking of terror suspects, he said: "Because they believe these techniques might involve torture and they don't understand them, they tend to speak to us, talk to us in very -- a very candid way."

Bush's homeland security adviser Frances Fragos Townsend was on CNN's Late Edition, where she said some techniques used earlier are no longer allowed.

"It's a different program going forward today, that's correct," she said.

Torture Opinion Watch

David Cole writes for Salon: "Once upon a time, a U.S. official's condemnation of torture was a statement of moral principle. Today, it is an opportunity for obfuscation. . . .

"While the executive order flatly forbids torture and cruel, inhuman and degrading treatment, its failure to specify permissible and impermissible techniques seems designed to leave the CIA wiggle room. A prohibition on 'acts of violence,' for example, applies only to those violent acts 'serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment,' as defined by the Military Commissions Act. The MCA, in turn, limits 'cruel and inhuman treatment' to the infliction of bodily injury that entails: '(i) a substantial risk of death; (ii) extreme physical pain; (iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or (iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty.' In other words, the president's order appears to permit cutting or bruising a suspect so long as the injury does not risk death, significant functional impairment or 'extreme physical pain,' an entirely subjective term. . . .

"The executive order's most revealing words come at the end. Its final section states that the order creates no rights enforceable by any victim against the United States or its employees, while expressly offering CIA employees a defense against any attempt to hold them liable for abuse. The ultimate purpose of the law, in other words, is to protect the potential perpetrators, not the potential victims."

Joanne Mariner writes for Findlaw: "Under the Constitution and laws of the United States, the new order asserts, the president has the power to interpret the meaning and application of Common Article 3 of the Geneva Conventions. This much is true, but the power to interpret the law does not encompass the power to impose a misinterpretation by executive fiat.

"Secret, incommunicado detention is illegal, both under U.S. and international law. By purporting to 'determine' that the CIA's secret prison program is legal, the president does not make it legal; he simply confirms that responsibility for this illegal program lies with him."

Ana Marie Cox blogs for Time: "The good news: We don't torture! The bad news: As to what torture is, as to how violators will be punished, as to whether or not torture ever took place, well, you'll have to take their word for it."

McConnell's Surprising Admission

McConnell's appearance on Meet the Press was notable for reasons other than his vague statements about torture.

Dick Polman blogs for the Philadelphia Inquirer: "Most Americans have long believed that the Bush team knowingly misled the nation into war by building a specious case against Saddam Hussein -- in one national poll last October, 58 percent shared that view -- but it's rare indeed that a high-ranking Bush teammate stands up in public and says the same thing.

"Actually, Admiral Mike McConnell was sitting down yesterday when he confirmed the Bush team's prewar deceptions; it was a newsworthy event, given the fact that McConnell, a former National Security Agency official, currently serves Bush as director of national intelligence. It was valuable to get him on the record. His words yesterday, on Meet the Press, will probably be grist for those future historians who will assess Bush's legacy."

Russert read out loud some quotes attributed to McConnell by Stephen Hayes in his new biography of Dick Cheney. According to Hayes, McConnell told him in an 2006 interview: "All of these current players, Secretary Rumsfeld, Vice President Cheney and the president... My sense of it is their political faith and convictions influenced how they took information and interpreted it, how they picked up and interpreted outside events. As a former intel pro, when you don't like the answer and you set up your own thing, you tend to get the answer you want. You hire people who think like you do or want to satisfy the boss. I've read much more about the current set of players and they did set up a whole new interpretation because they didn't like the answers. They've gotten results that in my view now have been disastrous."

As Russert put it, when he stopped reading: "That's pretty harsh."

McConnell replied: "Indeed."

Shocking Executive Privilege Move

Dan Eggen and Amy Goldstein broke the news in Friday's Washington Post: "Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege. . . .

"Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, 'whose duty it shall be to bring the matter before the grand jury for its action.'

"But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. . . .

"Mark J. Rozell, a professor of public policy at George Mason University who has written a book on executive-privilege issues, called the administration's stance 'astonishing.'

"'That's a breathtakingly broad view of the president's role in this system of separation of powers,' Rozell said. 'What this statement is saying is the president's claim of executive privilege trumps all.'"

Neil A. Lewis and David Johnston write in the New York Times: "The assertion that the Justice Department could thwart a contempt effort underscored a larger White House strategy to stake out a tough stance in its face-off with Congress, but one that could be modified later. Most confrontations over the refusal by presidents or their aides to provide information to Congress have ended with some sort of compromise.

"A Democratic staff aide in Congress called the White House comments 'a trial balloon,' which was supported by the fact that they first came Thursday evening from an unnamed official whose remarks were reported Friday in The Washington Post. . . .

"Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, said any effort by the White House to block the federal prosecutor from bringing a contempt citation on behalf of Congress would demonstrate the very problem Congress was seeking to investigate: whether federal prosecutors have been subjected to political influence."

Eggen and Goldstein wrote on Saturday that some Democrats concurred with the White House claim. For instance: "Walter E. Dellinger III, who headed the Office of Legal Counsel at the Justice Department then, wrote in a 1995 legal opinion that 'the criminal contempt of Congress statute does not apply to the President or presidential subordinates who assert executive privilege.' . . .

"'Congress can determine what's unlawful but not determine who should be prosecuted,' said Dellinger, who is now a Duke University law professor. 'It's an important part of the separation of powers. . . . The real issue in this case is whether the claims of executive privilege are valid,' a matter that he said would have to be adjudicated on its merits in the courts."

But by saying that the merits of the claim should be adjudicated in the courts, isn't Dellinger arguing the position of White House critics -- that there must be some judicial recourse?

Executive Privilege Opinion Watch

The New York Times editorial board writes: "This stance tears at the fabric of the Constitution and upends the rule of law. . . .

"The Supreme Court has made clear that executive privilege is not simply what the president claims it to be. It must be evaluated case by case by a court, balancing the need for the information against the president's interest in keeping his decision-making process private. . . .

"Congress should use all of the tools at its disposal to pursue its investigations. It is not only a matter of getting to the bottom of some possibly serious government misconduct. It is about preserving the checks and balances that are a vital part of American democracy."

Scott Horton blogs for Harpers: "From a historical and constitutional perspective, the notion of executive privilege is weak and speculative. It has historically crumbled under challenge. But now, in another signature act of constitutional vandalism, the Bush Administration is preparing to state that Executive Privilege trumps everything."

Public-policy professor Mark Kleiman blogs: "By taking the courts entirely out of the picture, Bush is daring the Congress to use its powers of self-help: arrest of individuals and seizure of documents by the Sergeants-at-Arms. Of course, [Democrats] will have to pick their shots; the last thing you want is prisoner who could be made into a sympathetic victim. But that's not true of Rove or Gonzales or Cheney. . . .

"Even without a physical arrest, issuing an order to one of the Sergeants-at-Arms to arrest any of those figures would make him into a sort of fugitive. Cheney, for example, could not preside over the Senate.

"If that's too radical a step, what's Plan B? Congress could use the power of the purse to bring the Bush machine -- but not the government -- to a grinding halt.

"Defund the non-essential (and dangerous) parts of the Executive Office of the President: the press office, the political office, the White House Counsel's office. None of those has any Constitutional standing; they exist only insofar as Congress appropriates money for them."

Glenn Greenwald blogs for Salon: "There is no magic force that is going to descend from the sky and strike with lighting at George Bush and Dick Cheney for so flagrantly subverting our constitutional order. The Founders created various checks for confronting tyrannical abuses of power, but they have to be activated by political will and the courage to confront it. That has been lacking. Hence, they have seized omnipotent powers with impunity.

"At this point, the blame rests not with the Bush administration . . . the blame rests with those who have acquiesced to it."

Censure Watch

Zachary A. Goldfarb writes in The Washington Post: "Sen. Russell Feingold (D-Wis.) announced that he would introduce resolutions to censure President Bush for the conduct of the Iraq war and some of his administration's counterterrorism initiatives.

"Feingold, one of the Senate's most liberal members, said on NBC's ' Meet the Press' that the censure measures, which carry no legal weight, would be one way to do 'something serious in terms of accountability.'"

Over on CBS's Face the Nation, Senate Majority Leader Harry M. Reid said he was not prepared to endorse Feingold's plan: "The president already has the mark of the American people that he's the worst president we've ever had, and I don't think we need a censure resolution in the Senate to prove that."

But on CNN's Late Edition, the Senate's No. 2 Democrat, Richard J. Durbin of Illinois, had this to say: "This administration has gone far beyond the exercise of political power. They have abused the Constitution in some respects. And I think it's appropriate for us to take the censure resolution up."

Here's more from Feingold's Web site.

Another Executive Order

Walter Pincus writes in The Washington Post: "Be careful what you say and whom you help -- especially when it comes to the Iraq war and the Iraqi government.

"President Bush issued an executive order last week titled 'Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq.' In the extreme, it could be interpreted as targeting the financial assets of any American who directly or indirectly aids someone who has committed or 'poses a significant risk of committing' violent acts 'threatening the peace or stability of Iraq' or who undermines 'efforts to promote economic reconstruction and political reform' in the war-torn country."

Continuity Plans?

Jeff Kosseff writes in the Oregonian: "Oregonians called Peter DeFazio's office, worried there was a conspiracy buried in the classified portion of a White House plan for operating the government after a terrorist attack.

"As a member of the U.S. House on the Homeland Security Committee, DeFazio, D-Ore., is permitted to enter a secure 'bubbleroom' in the Capitol and examine classified material. So he asked the White House to see the secret documents.

"On Wednesday, DeFazio got his answer: DENIED."

Valerie Plame Watch

Carol D. Leonnig writes in The Washington Post: "A federal judge yesterday dismissed a lawsuit filed by former CIA officer Valerie Plame and her husband against Vice President Cheney and other top officials over the Bush administration's disclosure of Plame's name and covert status to the media."

Neil A. Lewis writes in the New York Times: "The judge, John D. Bates, said that while the suit raised 'important questions relating to the propriety of actions taken by our highest government officials,' there was no statutory or constitutional way for the plaintiffs to obtain damages."

Here's the ruling.

The Cheney Presidency

Peter Baker writes in The Washington Post: "Doctors found and removed five growths from President Bush's colon yesterday and sent them for tests to determine whether they are cancerous, but the White House said they were small and did not appear to be cause for alarm.

"Bush transferred power to Vice President Cheney for two hours while undergoing the colon exam and recovering from anesthesia, only the third time a president has formally handed over authority because of temporary incapacity since ratification of the 25th Amendment to the Constitution in 1967. . . .

"Cheney was at his Chesapeake Bay home in St. Michaels, Md., with his wife, Lynne, and spent his short time in power reading in the back yard and hanging out with his dogs, spokeswoman Lea Anne McBride said. 'He had a routine Saturday morning,' she said by e-mail. 'Nothing occurred that required him to take official action as Acting President.'"

In other words, the Cheney acting presidency didn't go nearly as badly as some had feared.

The Cheney Bio

Evan Thomas writes in Newsweek: "The vice president has become a kind of modern-day prophet of doom. He is seen by many Americans as slightly creepy, if not sinister. Of course, he could be right: Al Qaeda may well be, as recent intelligence reports suggest, gearing up for another and possibly more catastrophic attack. But what makes Cheney so dire, so animated by gloom?

"You won't find a psychological explanation in Hayes's new book. A writer for the conservative Weekly Standard, Hayes is largely uncritical and essentially buys into the picture of Cheney-as-Stoic, a throwback to an ancient Greek warrior who can see the Fates gathering but grimly and bravely soldiers on."

Thomas concludes that if Cheney "spoke out, he might say that he worries so that the rest of us may sleep. It is also possible, however, that by striking out at imagined demons, he is creating real ones."

Snow's Honeymoon Over?

Yochi J. Dreazen blogs for the Wall Street Journal: "Bush administration spokesman Tony Snow enjoyed a long honeymoon with the White House press corps, which had held high hopes that the former journalist would be more open and less combative than predecessors like Ari Fleischer and Scott McClellan.

"But the relationship between the two sides has deteriorated markedly in recent months as President Bush's popularity has eroded and reporters -- still chastened by their failure to question the administration during the run-up to the Iraq war -- have become far more aggressive in their questions about the administration's handling of Iraq and the broader war on terrorism. Snow, in turn, has begun to lash out at many of the reporters in the room."

At Friday's briefing, Snow once again attacked his frequent foil, Helen Thomas, accusing her of criticizing U.S. troops more than she criticized Iraqi insurgents.

Writes Dreazen: "Other journalists who have felt Snow's rhetorical wrath include NBC's David Gregory (asking a 'partisan' question), CBS's Jim Axelrod (asking a 'loaded question') and CNN's Eliane Quijano (being 'facile')."

Cartoon Watch

Garry Trudeau on the value of a tour of the White House press room; Mike Luckovich on Bush and the law; Ben Sargent and Bill Mitchell on executive privilege; Ann Telnaes on Cheney's presidency; David Horsey on Cheney's exit strategy; John Sherffius on Bush's exit strategy.

Late Night Humor

Conan O'Brien, via U.S. News: "Tomorrow, President Bush is undergoing a colonoscopy. So, he's going to temporarily transfer his presidential power to Vice President Dick Cheney. Yeah, yeah. That's right. On the day that millions will be reading the new 'Harry Potter' book, Voldemort will be running the country."

And Jay Leno: "Tomorrow, President Bush will undergo a routine colonoscopy. You know what they found the last time Bush had a colonoscopy? His head.... While he's under, they will temporarily transfer power to Dick Cheney. Well, good luck getting that power back, huh? ... You know what's going to happen by noon tomorrow. He will have invaded Iran, Syria and Malibu."

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