The XX Factor: What women really think.

I Feel For Cheney

I never thought I'd write this sentence, but poor Dick Cheney. Last week's disclosure of the torture memos he fought to keep secret has forced him into the extremely uncharacteristic position of calling for more disclosure:

...they put out the legal memos, the memos that the CIA got from the Office of Legal Counsel, but they didn't put out the memos that showed the success of the effort. And there are reports that show specifically what we gained as a result of this activity. They have not been declassified. I formally asked that they be declassified now.

Ah, secrets—if only Cheney had thought of declassifying these reports when he had the power to do it himself! It almost makes you wish he was vice president again, doesn't it?

Meanwhile, Jane Mayer reports at the New Yorker that the Senate Armed Services Committee's unredacted report (pdf), released Tuesday by Sen. Levin, shows that the CIA used torture before the first Bybee memo granted approval on August 1, 2002. Like I said the other day, I don't think prosecuting CIA agents for what they did in the months after 9/11 is the best way to go. But this kind of evidence of law-breaking could be hard for Eric Holder to ignore.

Then there's this from Dafna Linzer at ProPublica: dozens of former CIA prisoners have gone missing.
 

Maybe the Torture Memo Authors Shouldn't Go to Europe Right Now

Kerry, you're exactly right. The "ticking bomb" torture scenario is a fairy tale. That justification for torture assumes that my government—or any government—can be as omniscient as Jack Bauer's screenwriters. How very convenient to imagine that the government would somehow know all about a plot, including when the bomb will go off and who has the code to turn it off! Why am I ever supposed to trust the rulers of any country—Russia, Iran, Morocco, or the U.S.—to know, with 100 percent certainty, that they've arrested exactly the right person?

Meanwhile, it looks like the people behind the torture memos (which did not, as Emily noted, result in information about a ticking bomb or any other plots), will be investigated—whether here or in Europe.

Spanish judge Baltasar Garzon is known for attempting to extradite Pinochet from London for trial in Madrid ... and also for presciently indicting Osama Bin Laden and 34 other al-Qaida operatives in 2003. Unlike Gitmo's torture, Garzon's indictment actually led to long prison sentences, according to the BBC, for 18 people—including one person convicted for helping to plot the 9/11 attacks.

Now Judge Garzon has given the go-ahead to a criminal investigation of the Bush administration team behind the torture memos. Reuters says that the six indicted include "William Haynes II, former general counsel for the Department of Defense; John Yoo, the former Justice Department lawyer who wrote secret legal opinions saying President George W. Bush had the authority to circumvent the Geneva Conventions; Douglas Feith, former undersecretary of defense for policy; Jay Bybee, Yoo's former boss at the Justice Department's Office of Legal Counsel; and David Addington, chief of staff and legal adviser to ex-Vice President Dick Cheney." Can Bush and Cheney be far behind?

The End of the Necessity Defense

The only way to understand how the Bush administration could have waterboarded two detainees 266 times is to go back to footnote 27 of this 2005 torture memo, which Scott Shane pointed to in the New York Times. It discusses the “unnecessary use of enhanced” interrogation techniques—unnecessary because “although the on-scene interrogation team judged Zubaydah to be compliant elements within the CIA Headquarters still believed he was withholding information.”

The memo only admits to one instance of that kind of break between the agents on the scene and HQ. But since we know that detainee Abu Zubaydah--83 waterboardings in August 2002, right after an earlier torture memo gave permission--gave up his most useful information in the weeks after he was captured, before or possibly immediately after the torture began. And so that "unnecessary" line stands for a much larger disturbing truth: The people ordering the torture didn’t care about how much pain they inflicted for how little gain. Efficacy, humanity—all of this became beside the point. The Bush administration wasn’t really standing on the ground that torture was a terrible means to the virtuous end of saving lives, as it so often claimed. There simply was no necessity defense.

That footnote also demonstrates why if we’re going to investigate or prosecute anyone, it shouldn’t be the agents on the scene. In the wake of Obama’s carefully crafted statement fending off prosecution for anyone who relied in good-faith on the DoJ memos, some commentators have called for looking into whether CIA agents could go down for torturing before the memos were written in August 2002. This seems wrong to me. If we went that route, we’d get around version of Abu Ghraib: a few low-level scapegoats standing in for their far more culpable superiors. Much more interesting is another possibility Obama left open: going after the lawyers who wrote the memos and the officials who demanded and approved them—David Addington, Alberto Gonzales, Jim Haynes. Rahm Emanuel told George Stephanopoulos on Sunday that Obama believes that “those who devised policy… should not be prosecuted either." But what about disbarment? And impeachment for Jay Bybee, the torture memo author who got life tenure on the 9^th Circuit? It would be a start. If you think these memos are good lawyering, then you don’t deserve to be a lawyer. That’s a lesson the bar should desperately want to impart.

Jay Bybee Admits He Did Wrong?

Bybee declined to talk about his work at the Office of Legal Counsel. But when he gathered former clerks last year at a Las Vegas steak house for a five-year reunion, he was more revealing.

"He said our work has been well-researched, carefully written, and that he was very proud of the work that we've done and the opinions his chambers has issued," said Tuan Samahon, who was Bybee's first judicial clerk and is now a UNLV professor.

According to Samahon, the judge then added: "I wish I could say that of the prior job I had."