Will Justice Go After Cheney?

By Dan Froomkin
Special to washingtonpost.com
Thursday, January 3, 2008; 12:46 PM

How high will the newly-launched criminal investigation into the CIA's destruction of interrogation tapes go? And will it eventually target Vice President Cheney?

Cheney has been the administration's central figure on all things related to torture. It was Cheney who pushed so hard for "flexibility" in interrogations of terrorist suspects. Former secretary of state Colin Powell's chief of staff, Lawrence Wilkerson, has long argued that it is "clear that the Office of the Vice President bears responsibility for creating an environment conducive to the acts of torture and murder committed by U.S. forces in the war on terror."

In the weeks proceeding the November 2005 destruction of the torture tapes, Cheney was pulling out all the stops in a failed lobbying effort to get fellow Republicans on the Hill to exempt the CIA from a proposed torture ban. Cheney's arm-twisting was so unseemly that a Washington Post editorial dubbed him the "Vice President for Torture." (When the law passed, Cheney's office authored a " signing statement" for Bush, in which he reserved the right to ignore it.)

So it should have come as no surprise when the New York Times reported last month that David S. Addington, Cheney's chief of staff and former legal counsel, was among the three White House lawyers who participated in at least one key meeting about the videotapes in 2004.

(For background on Addington, the indomitable and secretive agent of Cheney's will, see this May 2006 profile by Chitra Ragavan in U.S. News; this July 2006 profile by Jane Mayer in the New Yorker, and my Sept. 5 column.)

The initial spin from the White House was that only Harriet E. Miers, then a deputy White House chief of staff, had been briefed about the tapes -- and that she had advised against their destruction.

But with anything related to torture, it's pretty clear the CIA took its orders from Cheney -- via Addington. And how plausible is it that, in his exchanges with the CIA, Addington advised against the tapes' destruction? Or that the CIA would have done it if he had told them not to? Isn't it more likely that he supported the idea, either overtly or with a nod and a wink?

So one has to wonder what will happen if Addington is hauled in front of a grand jury to testify not just about his relevant conversations with the CIA, but about his conversations with Cheney.

"Did you, Mr. Addington, indicate in any way to the CIA that destroying the tapes would be acceptable, or even preferable? Did you do so based on instructions from your boss, the vice president?"

Wouldn't it be interesting to hear Addington answer those questions under oath?

Then again, he might just lie.

The last time a federal prosecutor got close to Cheney, of course, was in the CIA leak case. Special prosecutor Patrick Fitzgerald, who investigated the outing of Valerie Plame as a CIA agent, indicated during and after the trial of Cheney's chief of staff, I. Lewis 'Scooter' Libby, that he had been hot on the trail of the vice president himself until Libby obstructed his investigation.

There was considerable evidence that it was Cheney who instructed Libby to out Plame as part of a no-holds-barred crusade against her husband, an administration critic. Libby's own notes showed he first heard about Plame from Cheney. But when the FBI came calling, Libby denied remembering anything about that or any other related conversations with Cheney, choosing instead to make up a fanciful story about having learned of Plame's identity from NBC's Tim Russert.

When Libby was indicted and stepped down as chief of staff, Cheney's choice to replace him was obvious: He chose Addington.

The Coverage

Dan Eggen and Joby Warrick write in The Washington Post: "The Justice Department said yesterday that it has opened a formal criminal investigation into the CIA's destruction of interrogation tapes, appointing a career prosecutor to examine whether intelligence officials broke the law by destroying videos of exceptionally harsh questioning of terrorism suspects.

"The criminal probe, announced by Attorney General Michael B. Mukasey, significantly escalates a preliminary inquiry into whether the CIA's actions constituted an obstruction of justice. . . .

"To oversee the probe, Mukasey appointed John Durham, a career federal prosecutor from Connecticut, bypassing the department's Washington headquarters and the local U.S. attorney's office in Alexandria, which recused itself from the case. . . .

"Leaders of the House and Senate intelligence committees vowed to continue their separate inquiries, including a hearing on Jan. 16 at which they plan to grill Rodriguez. Various committee members have accused the CIA of not properly informing them about how the tapes came to be made and, later, destroyed, despite CIA statements to the contrary."

Mark Mazzetti and David Johnston write in the New York Times: "The announcement is the first indication that investigators have concluded on a preliminary basis that C.I.A. officers, possibly along with other government officials, may have committed criminal acts in their handling of the tapes, which recorded the interrogations in 2002 of two operatives with Al Qaeda and were destroyed in 2005.

"C.I.A. officials have for years feared becoming entangled in a criminal investigation involving alleged improprieties in secret counterterrorism programs. Now, the investigation and a probable grand jury inquiry will scrutinize the actions of some of the highest-ranking current and former officials at the agency. . . .

"The question of whether to destroy the tapes was for nearly three years the subject of deliberations among lawyers at the highest levels of the Bush administration. . . .

"Among White House lawyers who took part in discussions between 2003 and 2005 about whether to destroy the tapes were Mr. Gonzales, when he was White House counsel; Harriet E. Miers, Mr. Gonzales's successor as counsel; David S. Addington, who was then counsel to Vice President Dick Cheney; and John B. Bellinger III, then the legal adviser to the National Security Council. It is unclear whether anyone outside the C.I.A. endorsed destroying the tapes."

And here's a sobering point from Mazzetti and Johnston: "The new Justice Department investigation is likely to last for months, possibly beyond the end of the Bush administration."

Greg Gordon writes for McClatchy Newspapers that, according to an unnamed U.S. government official, "Jose Rodriguez, the CIA's chief of clandestine services, had ordered the destruction of the tapes after consulting agency lawyers. However, the lawyers had 'an expectation . . . that additional bases would be touched,' the official said.

"It couldn't be learned whether Rodriguez, who's declined to speak publicly, will assert that he was acting on orders from above, but former colleagues say he was a cautious officer."

Evan Perez writes in the Wall Street Journal (subscription required): "Some Democrats . . . have pushed for the Justice Department to name an independent special counsel and aren't pleased with the appointment of Mr. Durham, who will report directly to the deputy attorney general. The law governing independent counsels expired in 1999, when Congress didn't renew it. In the case of the investigation into the leak of the identity of CIA officer Valerie Plame, overseen by Patrick Fitzgerald, the U.S. attorney in Chicago, some critics of the Bush administration complained that the probe never answered key questions because he didn't publish a final investigative report, as an independent counsel would do.

"Michigan Democratic Rep. John Conyers, chairman of the House Judiciary Committee, said of Mr. Mukasey's move: 'Because of this action, the Congress and the American people will be denied -- as they were in the Valerie Plame matter -- any final report on the investigation.'"

Dafna Linzer writes in The Washington Post: "John H. Durham, who was appointed yesterday to lead a criminal probe into the destruction of the CIA's interrogation tapes, oversaw corruption charges against a Republican governor in Connecticut, put away FBI agents in Boston and prosecuted many of New England's Mafia bosses. . . .

"Former colleagues said the deputy U.S. attorney is known for seeking maximum sentences, shunning plea bargains and avoiding the spotlight. Four friends said they could not recall him losing a case in more than 30 years as a prosecutor, almost all of it spent fighting organized crime and gang violence in Connecticut. . . .

"Several courtroom adversaries compared Durham, a Roman Catholic reared in the Northeast, to Patrick J. Fitzgerald, the staid U.S. attorney in Chicago who served as special prosecutor in the investigation of the leaked identity of a CIA officer. 'He's Fitzgerald with a sense of humor,' said Hugh O'Keefe, a Connecticut criminal defense lawyer who has known Durham for 20 years.

"But Durham has had little experience with national security issues and with cases involving executive authority that appear to be less than black-and-white. His probe may require calling lawyers and aides to Bush, Vice President Cheney, Secretary of State Condoleezza Rice and the CIA before a grand jury to testify about their knowledge of the tapes' destruction."

Matt Apuzzo notes for the Associated Press: "Since leaving the White House shortly before Christmas, President Bush has not addressed the tapes' destruction. Before going to Camp David, then his ranch in Crawford, Texas, Bush said he was confident that investigations by Congress and the Justice Department 'will end up enabling us all to find out what exactly happened.'

"He repeated his assertion that his 'first recollection' of being told about the tapes and their destruction was when CIA Director Michael Hayden briefed him on it in early December."

Opinion Watch

The New York Times editorial board writes: "It is essential that the truth of what was on those tapes and how they came to be destroyed now comes out and that all of the government officials involved in their destruction be held legally accountable -- whether they are C.I.A. officers or top White House officials who spent three years debating whether to destroy the tapes.

"The tapes, which depicted the interrogations of two Al Qaeda operatives in 2002, may themselves have amounted to evidence of a crime -- torture -- carried out under the president's authority. The decision to destroy them appears to be one more move by the Bush administration to cover up the many abuses it has committed in the name of fighting terrorism."

The Washington Post editorial board writes: "In all likelihood, the Justice Department investigation will focus narrowly on whether the destruction of the tapes constituted a crime; it will probably not delve into whether the tapes depicted a crime, namely torture. Congress should continue to demand answers about the administration's past and current detention and interrogation policies."

Cheney at Work

Here's another example of Cheney at work.

Newsweek's Michael Isikoff interviews J. William Leonard, the director of the National Archives' Information Security Oversight Office (ISOO), who "learned the hard way the perils of questioning Vice President Dick Cheney." Leonard "challenged claims by the Office of Vice President (OVP) to be exempt from federal rules governing classified information. His efforts touched off a firestorm- and a counter-strike by Cheney's chief of staff, David Addington, who tried to wipe out Leonard's job."

Newsweek: "Explain how all this happened."

Leonard: "Up until 2002, OVP was just like any other agency. Subsequent to that, they stopped reporting to us. . . . At first, I took that to be, 'we're too busy.' Then we routinely attempted to do a review of the OVP and it was at that point in time it was articulated back to me that: 'well they weren't really subject to our reviews.' I didn't agree with it. But you know, there is a big fence around the White House. I didn't know how I could get in there if somebody didn't want me to."

Newsweek: "So how did matters escalate?"

Leonard: "The challenge arose last year when the Chicago Tribune was looking at [ISOO's annual report] and saw the asterisk [reporting that it contained no information from OVP] and decided to follow up. And that's when the spokesperson from the OVP made public this idea that because they have both legislative and executive functions, that requirement doesn't apply to them. . . . They were saying the basic rules didn't apply to them. I thought that was a rather remarkable position. So I wrote my letter to the Attorney General [asking for a ruling that Cheney's office had to comply.] Then it was shortly after that there were [email] recommendations [from OVP to a National Security Council task force] to change the executive order that would effectively abolish [my] office."

Newsweek: "Who wrote the emails?"

Leonard: "It was David Addington."

Newsweek: "No explanation was offered?"

Leonard: "No. It was strike this, strike that. Anyplace you saw the words, 'the director of ISOO' or 'ISOO' it was struck. . . . "

Newsweek: "A number of people have noted that the vice president's office stopped reporting to you and complying with ISOO in the fall of 2003 when the whole Valerie Plame case blew up. Do you think there was a connection?"

Leonard: "I don't have any insight. I was held at arms length [from that.] But some of the things based on what I've read [have] given me cause for concern. A number of prosecution exhibits [in the Plame-related perjury trial of I. Scooter Libby, Cheney's former chief of staff] were annotated, 'handle as SCI.' SCI is Sensitive Compartmentalized Information, the most sensitive classified information there is. As I recall, [one of them] was [the vice president and his staff] were coming back from Norfolk where they had attended a ship commissioning and they were conferring on the plane about coming up with a [media] response plan [to the allegations of Plame's husband, Iraq war critic Joseph Wilson.] That was one of the exhibits marked, 'handle as SCI.'"

Newsweek: "These were internal communications about what to say to the press?"

Leonard: "Let me give you some the irony of that. Part of the National Archives is the presidential libraries. . . . So we're going to have documents [at the libraries] with the most sensitive markings on it that isn't even classified. If I were going to do a review [of OVP], that would be one of the questions I would want to ask: What is this practice? And how widespread is it? And what is the rationale? How do we assure that people don't get this mixed up with real secrets?"

Cheney at Work, Part II

Los Angeles Times reporter Janet Wilson recently described the series of events that led to the controversial decision by the head of the U.S. Environmental Protection Agency to ignore his staff's recommendations and deny California's request for a waiver to implement a landmark law slashing vehicle emissions.

So what was the deciding factor for Stephen L. Johnson?

Wilson wrote: "Some [EPA] staff members believe Johnson made his decision after auto executives met with Vice President Dick Cheney and after a Chrysler executive delivered a letter to the White House outlining why neither California nor the EPA should be allowed to regulate greenhouse gases, among other reasons. The Detroit News reported Wednesday that chief executives of Ford and Chrysler met with Cheney last month."

White House Priorities

From yesterday's briefing with White House press secretary Dana Perino.

Q: "This begins President Bush's final year in the White House. What would you say are his most important goals, his priorities, the things on his 'must-do' list before he leaves the White House?"

Perino: "Well, there's a few things that we need to do with Congress on. While we were able to achieve some things last year, there's a lot of unfinished business. In regards to working with Congress, one of the first things that they need to do when they return is to pass and permanently establish the intelligence community reforms for the Foreign Intelligence Surveillance Act -- the FISA bill. . . .

"We'll also need to move forward on -- hopefully the No Child Left Behind reauthorization. . . .

"In the last four months, when the President has asked Congress to move forward on housing legislation in order to help stabilize that market and to help homeowners who are having some difficulty, they've only passed one of the pieces of legislation the President asked for. . . .

"In addition to that, we have free trade agreements that are on the table. . . . And in addition to that, we have many outstanding nominations that need to be confirmed, both judicial and also throughout the government. . . .

"And then of course we'll have to go through the joy of trying to pass a budget again. . . .

"In addition to that, though, the President has a lot of things he wants to do to consolidate the gains that we've made in the global war on terror. . . .

"In addition, as you know, next Tuesday the President leaves for a trip to the Middle East, where he will continue to help the Palestinians and the Israelis seize this opportunity to try to get to a peace settlement where we can have a Palestinian state. . . . Beyond that, you know he'll be going to Africa. He's got many economic meetings to come, international meetings, including the G8. So there's a lot of things that we have to get done. He says he wants to sprint to the finish. I saw him this morning. He said he got a lot of great rest and that he's ready to work."

It fell to Hearst columnist Helen Thomas to point out something that apparently slipped Perino's mind.

Q: "It's missing in your whole category of goals for his last year in office -- peace in Iraq."

Perino: "I should have mentioned, of course -- my list was not considered exhaustive as I ticked it off of the top of my head."

Pocket Veto Watch

Walter Alarkon writes in The Hill: "House Democrats and the Bush administration appear on the verge of a new constitutional fight over whether President Bush can pocket-veto the defense authorization bill.

"The White House on Monday said it was pocket-vetoing the measure, but a spokesman for House Speaker Nancy Pelosi (D-Calif.) said the president cannot use such a measure when Congress is in session. The distinction over whether the president can pocket-veto the bill is important because such a move would prevent Congress from voting on an override. . . .

"A pocket veto occurs when the president neither vetoes nor signs a bill within 10 days, excluding Sundays, after its passage while Congress is adjourned. When Congress is in session, any bill that the president does not act on becomes law, according to the Constitution. The Senate has been in pro forma session over the last two weeks, while the House has been out of session. . . .

"Louis Fisher, a constitutional scholar at the Library of Congress, said that the president is inviting a constitutional fight in trying a pocket veto.

"'The administration would be on weak grounds in court because they would be insisting on what the Framers decidedly rejected: an absolute veto,' Fisher said.

"True pocket vetoes are available only when Congress is away for months and unable to vote on an override, he said."

Kathleen Hunter writes for Congressional Quarterly: "Both House Speaker Nancy Pelosi , D-Calif., and Senate Majority Leader Harry Reid , D-Nev., have signaled that they plan to treat Bush's Dec. 28 memorandum of disapproval on the bill (HR 1585) as a normal veto, and have left open the possibility of veto override votes."

Slogan Contest

In my Live Online yesterday there was a great deal of animated discussion about Bush's attempted pocket veto. But a reader from Chandler, Ariz., chimed in to suggest that it wasn't exactly the sort of controversy that Democrats could use to harness voter outrage: "It's hard to get an apathetic public to get upset about a 'pocket veto'; it has no heart -- no slogan!"

I instantly commissioned a slogan contest. And by golly, Chandler, Ariz., was right. The strongest entries came from reader Horace LaBadie, and they weren't good. Among them:

"Don't pocket veto me, bro'."

"Is that a veto in your pocket, or did you just miss me?"

"If the Senate's in sayshun, the bill's legislation."

The best I could come up myself: The Pick Pocket Veto. (The veto, after all, had the immediate effect of reducing the raise military members got on Jan. 1 from 3.5 percent to 3 percent.)

Middle East Watch

More details of Bush's trip to the Middle East are emerging.

AFP reports: "Bush will hold a joint meeting with Israeli and Palestinian leaders during his visit to the region next week, a Palestinian official said on Wednesday.

"Bush will meet Israeli Prime Minister Ehud Olmert and Palestinian president Mahmud Abbas in Jerusalem on the evening of January 10, the official told AFP on condition of anonymity."

But apparently Bush isn't expecting any breakthroughs. He'll soon be changing the subject.

John D. McKinnon writes in the Wall Street Journal (subscription required): "President Bush plans to deliver the centerpiece speech of his Mideast trip this month in Abu Dhabi, White House officials said, highlighting the rapid economic growth and expanding opportunities of some Persian Gulf states.

"The speech scheduled for Jan. 13 is likely to hold up Persian Gulf States like Abu Dhabi, the largest of the United Arab Emirates, as models for the broader Arab world. By focusing attention on examples such as the UAE, the White House apparently hopes to encourage other Arab countries such as Saudi Arabia to open their economies and societies more rapidly and to shift their focus from their conflict with Israel and toward development."

Meanwhile, a new Harris Poll finds: "Three out of five Americans (62%) give the President a negative rating on his handling of the Israeli/Palestinian issue while only 25 percent give him positive marks. Looking at how President Bush has handled the situation in Afghanistan over the past several months, just one-quarter of Americans (26%) give him positive ratings while 63 percent give him negative ratings."

Neocon Watch

They're still out there. Claudia Rosett writes in an op-ed for the Philadelphia Inquirer: "The irony is that with the gains in Iraq of the 2007 surge, the much-criticized toppling of Saddam Hussein is looking more and more like the signal success of Bush foreign policy.

"It is on the rest of the chessboard, where America has been trying to go along to get along, that the real failures are now in the making. One by one, military options have been swept aside, and step by step, the quest for United Nations-style 'consensus' has replaced U.S. leadership. . . .

"[T]his was the road to Sept. 11, and it is an approach that right now we can ill afford.

"America doesn't have to wage war on every enemy on the planet, but appeasement and denial do not buy peace."

Rove in His Own Words

Karl Rove takes questions from Vanity Fair:

VF: "What is your most marked characteristic?"

Rove: "Energy and precision are tied."

VF: "What is your motto?"

Rove: "I like the one that used to be the motto on the unit coin of the 11th Armored Cavalry Regiment, the Blackhorse: 'Be prepared! Find the bastards. And pile on!'"

Laugh Out Loud Funny

Shikha Dalmia interviews former White House press secretary Tony Snow for Reason magazine.

Dalmia: "Run through how the messaging works in this White House. If a particular story or disaster breaks, how does the White House decide what it is going to say about it?"

Snow: "This is not like some previous administrations where people are running around with talking points. You're not going to find - I guarantee you - people using exactly the same phrase because that's not a very convincing way to do public diplomacy. What you've got to do is allow people to speak honestly in their own words. You've just got to do it in a way that is not jarring or inconsistent with what the president is saying."

Cartoon Watch

Tom Toles on Bush's quest for permanence.

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