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Torture, Continued

By Dan Froomkin
Special to washingtonpost.com
Thursday, October 4, 2007; 1:42 PM

How the United States became associated with torture is not just a matter of historical interest. And that's all the more clear today, with the publication of a major New York Times story describing the Bush administration's ongoing circumvention of national and international prohibitions against barbaric interrogation practices.

In other words: It continues.

Finding out what our government has been doing in our name, and openly debating our interrogation policies, should have been high on the national agenda since the disclosure of the shockingly inhumane treatment of prisoners at Abu Ghraib. Few other issues speak so clearly to how we see ourselves as a people -- and how others see us.

But the White House's non-denial denials, disingenuous euphemisms and oppressive secrecy have repeatedly stifled any genuine discourse. Bush shuts down discussion by declaring that "we don't torture" -- yet he won't even say how he defines the term.

Facts are the most crucial and largely missing element in this debate. Today, we have a few more.

Scott Shane, David Johnston and James Risen write in the New York Times: "When the Justice Department publicly declared torture 'abhorrent' in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

"But soon after Alberto R. Gonzales's arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

"The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

"Mr. Gonzales approved the legal memorandum on 'combined effects' over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion's overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be 'ashamed' when the world eventually learned of it.

"Later that year, as Congress moved toward outlawing 'cruel, inhuman and degrading' treatment, the Justice Department issued another secret opinion, one most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard. . . .

"Congress and the Supreme Court have intervened repeatedly in the last two years to impose limits on interrogations, and the administration has responded as a policy matter by dropping the most extreme techniques. But the 2005 Justice Department opinions remain in effect, and their legal conclusions have been confirmed by several more recent memorandums, officials said. They show how the White House has succeeded in preserving the broadest possible legal latitude for harsh tactics."

There's not a whole lot of doubt about where these polices originated: "Associates at the Justice Department said Mr. Gonzales seldom resisted pressure from Vice President Dick Cheney and David S. Addington, Mr. Cheney's counsel, to endorse policies that they saw as effective in safeguarding Americans, even though the practices brought the condemnation of other governments, human rights groups and Democrats in Congress. Critics say Mr. Gonzales turned his agency into an arm of the Bush White House, undermining the department's independence."

Comey "was the rare administration official who was willing to confront Mr. Addington." The result? "'On national security matters generally, there was a sense that Comey was a wimp and that Comey was disloyal,' said one Justice Department official who heard the White House talk, expressed with particular force by Mr. Addington."

Lara Jakes Jordan writes for the Associated Press this morning that White House Press Secretary Dana Perino "denied reports that a secret Justice Department opinion in 2005 cleared the way for the return of painful interrogation tactics or superseded U.S. anti-torture law."

But consider what Perino actually said: Nothing remotely specific.

"'This country does not torture,' [Perino] told reporters. "It is a policy of the United States that we do not torture and we do not.' . . .

"Asked about the story Thursday, Perino confirmed existence of the Feb. 5, 2005, classified opinion but would not comment on whether it authorized specific practices, such as head-slapping and simulated drowning. She said the 2005 opinion did not reinterpret the law."

For more background, see my columns from last fall: Torture Is All in the Subtext; Bush Gets His Way; Talking About Torture; Torture, By Any Other Name; and my July 23 column, Do We Torture?

Blogger Reaction

Yale law professor Jack Balkin blogs: "The twisting of law by the Justice Department under Alberto Gonzales is far worse than Gonzales' misleading testimony in front of Congress about the U.S. Attorney scandal. That scandal dominated the headlines for weeks. This one deserves far more searching press scrutiny. Despite the fact that Congress repeatedly passed legislation stating that it was illegal for U.S. personnel to engage in torture or cruel, inhuman and degrading treatment, the Justice Department repeatedly redefined the terms of these prohibitions so that the CIA could keep doing exactly what the Justice Department had authorized to do before. Gonzales treated all of these laws as if they made no difference at all, as if they were just pieces of paper. . . .

"An essential component of the rule of law is transparency. The laws must be knowable, not only so that people can structure their behavior with fair warning, but also to prevent government officials from engaging in abuses of power. The Bush Administration has used the shibboleths of terrorism and national security to violate this basic principle.

"The Administration said, 'Trust us.' And then this is what they did in secret."

Georgetown University law professor Marty Lederman blogs: "I am increasingly confident that when the history of the Bush Administration is written, this systematic violation of statutory and treaty-based law concerning fundamental war crimes and other horrific offenses will be seen as the blackest mark in our nation's recent history -- not only because of what was done, but because the programs were routinely sanctioned, on an ongoing basis, by numerous esteemed professionals -- lawyers, doctors, psychologists and government officers -- without whose approval such a systematized torture regime could not be sustained."

Blogger Digby writes: "I am still stunned that we are talking about the United States of America issuing dry legal opinions about how much torture you are allowed to inflict on prisoners. Stories like this one are the very definition of the banality of evil --- a bunch of ideologues and bureaucrats blithely committing morally reprehensible acts apparently without conscience or regret."

Blogger Hilzoy writes: "The techniques in question are repugnant. But in many ways, the administration's disregard for the law is worse. When your policies violate treaties you have signed and laws that are on the books, you are not supposed to come up with some clever way of explaining that appearances to the contrary, what you're doing is not illegal at all. You're supposed to stop doing it. When Congress decides to pass a law banning 'cruel, inhuman and degrading' treatment, you are supposed to stop engaging in such treatment, not to redefine 'cruel, inhuman and degrading' so that it doesn't apply to anything you want to do."

Glenn Greenwald blogs for Salon: "Congress could aggressively investigate. Criminal prosecutions could be commenced. Our opinion-making elite could sound the alarm. New laws could be passed, reversing the prior endorsements and imposing new restrictions, along with the will to enforce those laws. We still have the ability to vindicate the rule of law and enforce our basic constitutional framework.

"But does anyone actually believe any of that will be the result of these new revelations? We always possess the choice -- still -- to take a stand for the rule of law and our basic national values, but with every new day that we choose not to, those Bush policies become increasingly normalized, increasingly the symbol not only of 'Bushism' but of America."

Mukasey Watch

There will undoubtedly be some discussion of torture at Michael Mukasey's confirmation hearings to replace Gonzales as attorney general.

Philip Shenon writes in the New York Times: "Backing away from a fight with the White House, Senate Democrats are suggesting that they will not hold up confirmation of President Bush's nominee for attorney general, Michael B. Mukasey, despite differences over Senate access to documents involving Justice Department actions.

"In a letter to Mr. Mukasey made public Wednesday, the chairman of the Senate Judiciary Committee, Patrick J. Leahy of Vermont, said he would go forward with the confirmation hearings without the promise of the documents.

"The committee had for months been pressing the White House for access to files and e-mail messages about last year's firing of several federal prosecutors for what Democrats maintain were political reasons, and about legal justifications for the domestic eavesdropping program run by the National Security Agency. . . .

"The decision to go forward with the hearings appeared to reflect a calculation by Mr. Leahy and other Democrats that they did not want to be seen as willing to leave the post unfilled after complaining so loudly of turmoil in the department under Mr. Gonzales."

Bush's Sinking SCHIP

Michael Abramowitz and Jonathan Weisman write in The Washington Post: "President Bush yesterday vetoed a $35 billion expansion of a popular children's health insurance program, a move that left him as politically isolated as he has ever been and had even Republican allies questioning his hard-line strategy.

"Bush advisers said they remain hopeful that they can secure an extension of the 10-year-old program with a lower price tag, saying they want to open negotiations soon.

"But House Democratic leaders signaled they are not yet ready to bargain. They have delayed until Oct. 18 a vote to override the veto, in hopes that a grass-roots campaign by health-policy advocates and a barrage of television and radio advertisements will win over the 15 or so Republicans they will need to overcome Bush's opposition."

Abramowitz and Weisman write that the confrontation stems in part "from the White House's desire to use the bill reauthorizing the State Children's Health Insurance Program to advance Bush's proposals to expand health insurance coverage through tax breaks as it does from his budgetary concerns. . . .

"But the key Republicans on health-care issues, including Sen. Charles E. Grassley (Iowa), the ranking GOP member of the Finance Committee, said they found no takers for this approach. [Sen. Orrin G. Hatch (R-Utah)] Hatch, a conservative, said he thought Bush was being unrealistic and had not come to grips with the fact that Democrats now run Congress."

Michael McAuliff writes in the New York Daily News: "Critics of every stripe jumped all over President Bush's veto of a children's health insurance plan Wednesday, slamming it as heartless and ideologically driven."

Zachary Coile writes in the San Francisco Chronicle that "the president's critics say he chose the wrong place to draw the line on spending and a federal role in health care. And some of his most vocal critics are fellow Republicans."

David Jackson and Kathy Kiely write in USA Today: "Minutes after President Bush issued his fourth veto Wednesday, members of Congress from both parties began searching for the votes they need to override him and expand a children's health insurance program."

SCHIP Opinion Watch

The Charlotte Observer editorial board writes: "Facts didn't matter enough to President Bush as he stood resolute and vetoed a bipartisan bill to increase funding for the Children's Health Insurance Program. But facts should matter to members of Congress who have the power to override his veto."

The Philadelphia Daily News editorial board writes: "Bush was in Lancaster, Pa., yesterday, discussing his reasoning for the veto. It's not clear from his remarks that he actually understands how SCHIP works . . . or, more likely, how poverty works."

Timothy Noah writes in Slate: "In vetoing reauthorization of the State Children's Health Insurance Program, George W. Bush has fired the first shot in the battle over health-care reform. The likely result will be to help mobilize support for further government intervention in the health-care market, which would be a very good thing. Thank you, Mr. President!"

Open Mic

Deb Riechmann writes for the Associated Press: "Give the man a microphone and he'll talk about anything. For 76 minutes, President Bush prowled the stage Wednesday in the heart of Pennsylvania Dutch country, giving a speech and answering questions about everything from his opposition to tax increases to his veto of a bill to expand children's health insurance. . . .

"Bush, known for his impatience when fellow leaders rattle on, acknowledged he was doing the same himself in his opening remarks.

"'I'll be glad to answer some questions from you if you got any,' he said. 'If not, I can keep on blowing hot air until the time runs out.'"

Here's the meandering transcript. I'm not sure what's more incredible: That he said so little or that no one was listening. None of the news networks carried him live, even though Bush insisted at one point that "we're talking national TV here."

The Deciderer

Bush talked a lot about decisions, and how he makes them.

"I really appreciate the Lancaster Chamber of Commerce for giving me an opportunity to explain why I have made some of the decisions I have made. My job is a decision-making job. And as a result, I make a lot of decisions. And it's important for me to have an opportunity to speak to you and others who would be listening about the basis on which I have made decisions, to explain the philosophy behind some of the decisions I have made. . . .

"Decision making requires a couple of things -- and then I'll answer some questions -- one: having a vision, having a set of beliefs, set of principles by which one makes decisions. You know, if you're constantly trying to make decisions based upon the latest poll or focus group, your decision making will be erratic. . . .

"Secondly, it's important to delegate. There's a lot of action in Washington, D.C., believe me, and I've got a lot of decisions to make. And so I delegate to good people."

That led into Bush's now-familiar ribbing of the advisers who are better-educated than he is: "I always tell Condi Rice, I want to remind you, Madam Secretary, who has the Ph.D. and who was the C student. (Laughter.) And I want to remind you who the advisor is and who the President is. (Laughter.) I got a lot of Ph.D.-types and smart people around me who come into the Oval Office and say, Mr. President, here's what's on my mind. And I listen carefully to their advice. But having gathered the device [sic], I decide, you know, I say, this is what we're going to do. And it's 'yes, sir, Mr. President.' And then we get after it, implement policy."

Bubble Watch

In a rare breach of his protective bubble, Bush was actually asked a few tough questions -- and got an eyeful of an angry anti-war T-shirt.

Dave Pidgeon writes for the Intelligencer Journal of Lancaster: "Manheim Realtor Gerry Beane was the first to speak and said, 'from man-to-man, taxpayer to president,' he believes the United States needs to disengage from Iraq.

"Beane sat next to Sherry Wolfe, who wore a pink T-shirt emblazoned with the words, 'GEORGE BUSH YOUR WAR KILLED MY FRIEND'S SON.'

"More than 3,800 U.S. soldiers have died in Iraq since 2003, including the person referred to on Wolfe's T-shirt, Brent Adams of Mountville.

"'Like you, I want them home,' Bush said. . . .

"A 10th-grader asked Bush why he wouldn't sit down with Iranian President Mahmoud Ahmadinejad to negotiate a settlement of ongoing rhetorical hostilities.

"The president said he would have direct talks with Ahmadinejad only if Iran would forego its nuclear weapons program. Iran says it's developing nuclear technology for peaceful purposes.

"'In other words, it's his choice, not mine anymore,' Bush said."

Here's a photo of Wolfe and her T-shirt.

Tom Knap of the Intelligencer Journal talked to Bill Adams, whose son Brent was commemorated on the T-shirt: "A letter Adams wrote to Bush, 'as one father to another,' was hand-delivered to the president by friend Sherry Wolfe during the Jay Group meeting.

"'He said he would read it,' Adams said.

"Adams said he wants closure -- and an explanation -- for his son's death."

Bush and the Food Bank Lady

Even the rare hardball questions at such events are easy for Bush to field because there's no follow-up. But Karen Woodings, special programs coordinator of the Central Pennsylvania Food Bank, got into an actual back-and forth with Bush yesterday.

Woodings took Bush to task for cutting -- and trying to eliminate -- the Commodities Supplemental Food program, a federal initiative that provides boxes of food to poor senior citizens.

Bush first tried a lighthearted approach to disarm Woodings. But when she continued to press, he confessed ignorance: "[L]ook, I don't know the program. Maybe I shouldn't make this admission, maybe I should try to bull my way through. I don't know the program; I'm sorry. I'll be glad to look into it. But just from a philosophical perspective, one of the wonderful things about the country is when there's a need, the average citizen steps up and helps fill the need through private charity."

I spoke to Woodings this morning, who told me: "I was surprised that he didn't know of the program, considering he's been attempting to eliminate it."

As for the role of private charity: "We have incredibly generous donors," she said, "but that doesn't always fill the need. . . . I don't think it gets him off the hook, and I plan to continue to pursue this with the folks he puts me in touch with."

I noted that a lot of people don't have the guts to talk back to the president. "I couldn't not," Woodings said. "I asked the question because I wanted an answer. . . . I didn't just want to let the matter drop."

The Power of Diplomacy

Glenn Kessler writes in The Washington Post: "Three years ago this month, President Bush met Democratic challenger John F. Kerry in a debate and declared that Kerry's answer on negotiations with North Korea 'made me want to scowl.'

"Bush said that Kerry was advocating a 'naive and dangerous' policy of offering to conduct bilateral negotiations with Pyongyang in parallel with the six-nation talks on North Korea's nuclear ambitions. 'That's what President Clinton did,' Bush asserted, saying Kerry's idea would undermine the six-party talks. Clinton 'had bilateral talks with the North Korean, and guess what happened: He [Kim Jong Il] didn't honor the agreement.'

"If there was any doubt, yesterday's announcement in Beijing of a new agreement with North Korea demonstrates how much Bush has adopted the approach he once condemned. The agreement was reached after bilateral negotiations between the United States and North Korea, held in parallel with the six-nation talks, just as Kerry had suggested."

Michael Hirsh writes in Newsweek: "'To get something in this world, you've got to give something,' Chris Hill told reporters on Wednesday. That pretty much sums up why Hill, a veteran State Department negotiator and no ideologue, may be on the verge of achieving the Bush administration's biggest diplomatic success to date."

But, Hirsh writes, "in a confrontation of potentially far greater significance -- with Iran -- the Bush administration isn't looking hard enough for a negotiated way out. "

Blackwater Watch

Karen DeYoung writes in The Washington Post that the White House yesterday "said it is opposed to a House bill that would extend current federal law covering Defense Department contractors overseas to those working for the State Department. A statement from the Office of Management and Budget said the bill was too vague and would have unspecified 'intolerable consequences for crucial and necessary national security activities and operations.'"

Anne Flaherty writes for the Associated Press that the bill passed in the House today by a vote of 389-30.

Federal Government Incompetence Watch

Eric Lipton writes in the New York Times: "It started off early Wednesday as an innocuous request from a North Carolina businessman to the Homeland Security Department. He was responding to a daily antiterrorism bulletin by asking that it be sent to another e-mail address.

"But by afternoon, a programming flaw involving the 'reply' function transformed that e-mail message into a flood of more than 2.2 million messages nationwide that clogged the e-mail accounts of government and private experts on domestic security. . . .

"The accident raised questions among cybersecurity experts about how well prepared the Homeland Security Department is to defend against a cyberattack because it had trouble dealing with this computer problem.

"'It is a very simple fix,' said Marcus H. Sachs, a volunteer computer security expert at the SANS Internet Storm Center. 'Do they not have anybody there that understands how to fix it?'"

Battle of the Legacies

When it comes to would-be 44s, it's a lot better to be associated with 42 than 43.

Dan Balz and Jon Cohen write in The Washington Post: "Former president Bill Clinton has emerged as a clear asset in his wife's campaign for the White House, with Americans offering high ratings to his eight years in office and a solid majority saying they would be comfortable with him as first spouse, according to a new Washington Post-ABC News poll. . . .

"Two-thirds of Americans said they approve of the job he did while he was in office -- virtually the reverse of President Bush's current approval rating, which stands at 33 percent. Clinton remains overwhelmingly popular among Democrats, and 63 percent of independents and even a third of Republicans also gave him positive marks."

Partisan PR

Is this the Dana Perino influence? The White House sent out three unusually aggressive, partisan missives to the press corps yesterday. There was a " Setting the Record Straight" memo aimed at House Speaker Nancy Pelosi, a list of " Ten Questions For The Democrats' Housing Press Conference" that also appeared on the RNC Web site, and then a summary of Bush housing policies entitled "In Case The Democrats Missed It."

Jenna Watch

Skip Hollandsworth interviews Jenna Bush for Texas Monthly: "I ask her if, in the waning days of his administration, the president is truly at ease, as he seems to be. She gives me a long look. 'No,' she finally says, 'not all the time. He acts like he's at ease--or tries to act like it--but he's not always.' She's looking forward to January 2009, she adds, so that her parents can return to Texas and can 'just relax. They really can't relax right now.'"

Froomkin Watch

I'll be off tomorrow and Monday (Columbus Day). The column will return on Tuesday, Oct. 9.

Late Night Humor

Comedy Central's Stephen Colbert: "Mr. President, for leading us to a bold commitment to finalize a goal for future possible action to solve global warming, you, sir, are my Alpha Dog of the Week."

Cartoon Watch

Stuart Carlson, Ann Telnaes, David Horsey and John Sherffius on the veto.

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