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Cheney was central in torture debate Original Source Link: (May no longer be active)
http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20070703/REPOSITORY/707030307/1013/NEWS03http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20070703/REPOSITORY/707030307/1013/NEWS03
Article published Jul 3, 2007
Cheney was central voice in torture debate
He helped lay path for Gitmo interrogations
By BARTON GELLMAN and JO BECKER
The Washington Post
Jul 3, 2007
Shortly after the first accused terrorists reached the U.S. naval prison at Guantanamo Bay, Cuba, on Jan. 11, 2002, a delegation from the CIA arrived in the Situation Room. The agency presented a delicate problem to White House counsel Alberto Gonzales, a man with next to no experience on the subject. Vice President Dick Cheney's lawyer, who had a great deal of experience, sat nearby.
The meeting marked "the first time that the issue of interrogations comes up" among top-ranking White House officials, recalled John Yoo, who represented the Justice Department. "The CIA guys said, 'We're going to have some real difficulties getting actionable intelligence from detainees' " if interrogators confined themselves to humane treatment allowed by the Geneva Conventions.
From that moment, well before previous accounts have suggested, Cheney turned his attention to the practical business of crushing a captive's will to resist. The vice president's office played a central role in shattering limits on coercion in U.S. custody, commissioning and defending legal opinions that the Bush administration has since portrayed as the initiatives, months later, of lower-ranking officials.
Cheney and his allies, according to more than two dozen current and former officials, pioneered a distinction between forbidden "torture" and permitted use of "cruel, inhuman or degrading" methods of questioning. They did not originate every idea to rewrite or reinterpret the law, but fresh accounts from participants show that they translated muscular theories, from Yoo and others, into the operational language of government.
A backlash beginning in 2004, after reports of abuse leaked out of Iraq's Abu Ghraib prison and Guantanamo Bay, brought what appeared to be sharp reversals in courts and Congress - both for Cheney's claims of executive supremacy and his unyielding defense of what he called "robust interrogation."
But a more careful look at the results suggests that Cheney won far more than he lost. Many of the harsh measures he championed, and some of the broadest principles supporting them, have survived intact but out of public view.
The vice president's unseen victories attest to traits that are often ascribed to him but are hard to demonstrate from the public record: thoroughgoing secrecy, persistence of focus, tactical flexibility in service of fixed aims and close knowledge of the power map of government. On critical decisions for more than six years, Cheney has often controlled the pivot points - tipping the outcome when he could, engineering a stalemate when he could not and reopening debates that rivals thought were resolved.
"Once he's taken a position, I think that's it," said James Baker, who has shared a hunting tent with Cheney more than once and worked with him under three presidents. "He has been pretty damn good at accumulating power, extraordinarily effective and adept at exercising power."
Getting the enemy to talk
David Addington, Cheney's general counsel, set the new legal agenda in a blunt memorandum shortly after the CIA delegation's visit. Geneva's "strict limitations on questioning of enemy prisoners," he wrote on Jan. 25, 2002, hobbled efforts "to quickly obtain information from captured terrorists."
No longer was the vice president focused on procedural rights, such as access to lawyers and courts. The subject now was more elemental: How much suffering could U.S. personnel inflict on an enemy to make him talk? Cheney's lawyer feared that future prosecutors, with motives "difficult to predict," might bring criminal charges against interrogators or Bush administration officials.
Geneva rules forbade not only torture but also, in equally categorical terms, the use of "violence," "cruel treatment" or "humiliating and degrading treatment" against a detainee "at any time and in any place whatsoever." The War Crimes Act of 1996 made any grave breach of those restrictions a U.S. felony. The best defense against such a charge, Addington wrote, would combine a broad presidential directive for humane treatment, in general, with an assertion of unrestricted authority to make exceptions.
The vice president's counsel proposed that President Bush issue a carefully ambiguous directive. Detainees would be treated "humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of" the Geneva Conventions. When Bush issued his public decision two weeks later, on Feb. 7, 2002, he adopted Addington's formula - with all its room for maneuver - verbatim.
In a radio interview last fall, Cheney said, "We don't torture." What he did not acknowledge, according to Alberto Mora, who served then as the Bush-appointed Navy general counsel, was that the new legal framework was designed specifically to avoid a ban on cruelty. In international law, Mora said, cruelty is defined as "the imposition of severe physical or mental pain or suffering." He added: "Torture is an extreme version of cruelty."
How extreme? Yoo was summoned again to the White House in the early spring of 2002. This time the question was urgent. The CIA had captured Abu Zubaida, then believed to be a top al-Qaida operative, on March 28, 2002. Case officers wanted to know "what the legal limits of interrogation are," Yoo said.
This previously unreported meeting sheds light on the origins of one of the Bush administration's most controversial claims. The Justice Department delivered a classified opinion Aug. 1, 2002, stating that the U.S. law against torture "prohibits only the worst forms of cruel, inhuman or degrading treatment" and therefore permits many others. Distributed under the signature of Assistant Attorney General Jay Bybee, the opinion narrowed the definition of "torture" to mean only suffering "equivalent in intensity" to the pain of "organ failure . . . or even death."
When news accounts unearthed that opinion nearly two years later, the White House repudiated its contents. Some officials described it as hypothetical, without disclosing that the opinion was written in response to specific questions from the CIA. Administration officials attributed authorship to Yoo, a law professor who had come to serve in the Office of Legal Counsel.
But the "torture memo," as it became widely known, was not Yoo's work alone. In an interview, Yoo said Addington, as well as Gonzales and deputy White House counsel Timothy Flanigan, contributed to the analysis.
The vice president's lawyer advocated what was considered the memo's most radical claim: that the president may authorize any interrogation method, even if it crosses the line into torture. U.S. and treaty laws forbidding any person to "commit torture," that passage stated, "do not apply" to the commander in chief, because Congress "may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."
That same day, Aug. 1, 2002, Yoo signed off on a second secret opinion, the contents of which have never been made public. According to a source with direct knowledge, that opinion approved as lawful a long list of interrogation techniques proposed by the CIA - including waterboarding, a form of near-drowning that the U.S. government has prosecuted as a war crime since at least 1901. The opinion drew the line against one request: threatening to bury a prisoner alive.
Yoo said for the first time in an interview that he verbally warned lawyers for the president, Cheney and Defense Secretary Donald Rumsfeld that it would be dangerous as a matter of policy to permit military interrogators to use the harshest techniques because the armed services, vastly larger than the CIA, could overuse the tools or exceed the limits. "I always thought that only the CIA should do this, but people at the White House and at DOD felt differently," Yoo said. The migration of those techniques from the CIA to the military, and from Guantanamo Bay to Abu Ghraib, aroused worldwide condemnation when abuse by U.S. troops was exposed.
Through his spokeswoman, Tasia Scolinos, Gonzales declined a request for an interview about his time in the White House counsel's office and his interactions with Cheney. The vice president's spokeswoman, Lea Anne McBride, declined to comment on Yoo's recollection.
Disputes over Guantanamo
In the summer and fall of 2002, some of the Bush administration's leading lawyers began to warn that Cheney and his Pentagon allies had set the government on a path for defeat in court. As the judicial branch took up challenges to the president's assertion of wartime power, Justice Department lawyers increasingly found themselves defending what they believed to be losing positions - directed by the vice president and his staff.
One of the uneasy lawyers was Solicitor General Theodore Olson, a conservative stalwart whose wife, Barbara, had died on Sept. 11, 2001, when the hijacked American Airlines Flight 77 crashed into the Pentagon. Olson shared Cheney's robust view of executive authority, but his job was to win cases. Two that particularly worried him involved U.S. citizens - Jose Padilla and Yaser Esam Hamdi - who had been declared enemy combatants and denied access to lawyers.
Federal courts, Olson argued, would not go along with that.
Decision time came in a heated meeting in Gonzales's office, according to four officials with direct knowledge, none of whom agreed to be quoted by name about confidential legal deliberations. Olson was backed by associate White House counsel Bradford Berenson, a former law clerk to Supreme Court Justice Anthony Kennedy.
Berenson told colleagues that Kennedy, the court's swing voter, would never accept absolute presidential discretion to declare a U.S. citizen an enemy and lock him up without giving him an opportunity to be represented and heard.
Gonzales listened quietly. Then he decided in favor of Cheney's lawyer. John Ashcroft, who was attorney general at the time, declined to discuss details of the dispute but said the vice president's views "carried a great deal of weight. A U.S. District Court ruled several months later that Padilla had a right to counsel.
Cheney's strategy fared worse in the Supreme Court, where two cases arrived for oral argument, shortly after Padilla's, on April 28, 2004.
For months, Olson and his Justice Department colleagues had pleaded for modest shifts that would shore up the government's position. Hamdi, the American, had languished in a Navy brig for 2½ years without a hearing or a lawyer. Shafiq Rasul, a British citizen at Guantanamo Bay, had been held even longer. Addington, the vice president's counsel, fought and won again. He argued that any declaration of binding rules would restrict the freedom of future presidents and open the door to further lawsuits. On June 28, 2004, the Supreme Court ruled 8 to 1 in the Hamdi case that detainees must have access to a lawyer and an opportunity to challenge their status as enemy combatants before a "neutral decision maker." The Rasul decision, the same day, held 6 to 3 that Guantanamo Bay is not beyond the reach of federal law.
Eleven days later, Olson stepped down as solicitor general.
Resisting rules on torture
Rumsfeld, Cheney's longtime friend and mentor, gathered his senior subordinates at the Pentagon in the summer of 2005. He warned them to steer clear of Senate Republicans John McCain, John Warner and Lindsey Graham, who were drafting a bill to govern the handling of terrorism suspects.
"Rumsfeld made clear, emphatically, that the vice president had the lead on this issue," said a former Pentagon official with direct knowledge.
Though his fingerprints were not apparent, Cheney had already staked out a categorical position for the president. It came in a last-minute insert to a "statement of administration policy" by the Office of Management and Budget, where Nancy Dorn, Cheney's former chief of legislative affairs, was deputy director. Without normal staff clearance, according to two Bush administration officials, the vice president's lawyer added a paragraph - just before publication on July 21, 2005 - to the OMB's authoritative guidance on the 2006 defense spending bill.
"The Administration strongly opposes" any amendment to "regulate the detention, treatment or trial of terrorists captured in the war on terror," the statement said. Before most Bush administration officials even became aware that the subject was under White House review, Addington wrote that "the President's senior advisers would recommend that he veto" any such bill.
Among those taken unawares was Deputy Defense Secretary Gordon England. More than a year had passed since Bush expressed "deep disgust" over the abuse photographed at Abu Ghraib, and England told aides it was past time to issue clear rules for U.S. troops.
In late August 2005, England called a meeting of nearly three dozen Pentagon officials, including the vice chief and top uniformed lawyer for each military branch. Matthew Waxman, the deputy assistant secretary for detainee affairs, set the agenda.
Waxman said the president's broadly stated order of Feb. 7, 2002 - which called for humane treatment, "subject to military necessity" - had left U.S. forces unsure about how to behave. The Defense Department, he said, should clarify its bedrock legal requirements with a directive incorporating the language of Geneva's Common Article 3. That was exactly the language - prohibiting cruel, violent, humiliating and degrading treatment - that Cheney had spent three years expunging from U.S. policy.
'An indifference to public opinion'
Over the next 12 months, Congress and the Supreme Court imposed many of the restrictions that Cheney had squelched.
On Oct. 5, 2005, the Senate voted 90 to 9 in favor of McCain's Detainee Treatment Act, which included the Geneva language. It was, by any measure, a rebuke to Cheney. Bush signed the bill into law. "Well, I don't win all the arguments," Cheney told the Wall Street Journal.
Yet he and Addington found a roundabout path to the exceptions they sought for the CIA, as allies in Congress made little-noticed adjustments to the bill.
The final measure confined only the Defense Department to the list of interrogation techniques specified in a new Army field manual. No techniques were specified for CIA officers, who were forbidden only in general terms to employ "cruel" or "inhuman" methods. Crucially, the new law said those words would be interpreted in light of U.S. constitutional law. That made a big difference to Cheney.
The Supreme Court has defined cruelty as an act that "shocks the conscience" under the circumstances. Addington suggested, according to another government lawyer, that harsh methods would be far less shocking under circumstances involving a mass-casualty terrorist threat. Cheney might have alluded to that advice in an interview broadcast on ABC's "Nightline" on Dec. 19, 2005, saying "what shocks the conscience" is to some extent "in the eye of the beholder."
Eager to put the detainee scandals behind them, Bush's advisers spent days composing a statement in which the president would declare support for the veto-proof bill on detainee treatment. Hours before Bush signed it into law on Dec. 30, 2005, Cheney's lawyer intercepted the accompanying statement "and just literally takes his red pen all the way through it," according to an official with firsthand knowledge.
Addington substituted a single sentence. Bush, he wrote, would interpret the law "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief."
Top officials from the CIA, Justice, State and Defense departments unanimously opposed the substitution, according to two officials. None of that mattered. With Cheney's weight behind it, White House counsel Harriet Miers sent Addington's version to Bush for his signature.
"The only person in Washington who cares less about his public image than David Addington is Dick Cheney," said a former White House ally. "What both of them miss is that . . . in times of war, a prerequisite for success is people having confidence in their leadership. This is the great failure of the administration - a complete and total indifference to public opinion."
A rebuke to Cheney's theories
On June 29, 2006, the Supreme Court struck its sharpest blow to the house that Cheney built, ruling 5 to 3 that the president had no lawful power to try alleged terrorists in military commissions.
Not only did the court leave the president beholden to Congress for the authority to charge and punish terrorists, but it rejected a claim of implicit legislative consent that Bush was using elsewhere to justify electronic surveillance without a warrant. And not only did it find that Geneva's Common Article 3 protects "unlawful enemy combatants," but it also said that those protections - including humane treatment and the right to a trial by "a regularly constituted court" - were enforceable by federal judges in the United States.
The court's decision, in Hamdan vs. Rumsfeld, was widely seen as a calamity for Cheney's war plan against al-Qaida.
In another reversal for Cheney, Bush acknowledged publicly on Sept. 6 that the CIA maintained secret prisons overseas for senior al-Qaida detainees, a subject on which he had held his silence since The Washington Post disclosed them late in 2005. The president announced he had emptied the "black sites" and transferred their prisoners to Guantanamo Bay to be tried.
The same week, almost exactly a year after the vice president's office shelved Waxman's Pentagon plan, Waxman's successor dusted it off. DOD Directive 2310.01E, the Department of Defense Detainee Program, included the verbatim text of Geneva's Common Article 3 and described it, as Waxman had, as "minimum standards of treatment of all detainees." The new Army field manual, published with the directive, said interrogators were forbidden to employ a long list of techniques that had been used against suspected terrorists since Sept. 11, 2001 - including stripping, hooding, inflicting pain and forcing the performance of sex acts.
For all the apparent setbacks, close observers said, Cheney has preserved his top-priority tools in the "war on terror." After a private meeting with Cheney, one of them said, Bush decided not to promise that there would be no more black sites - and seven months later, the White House acknowledged that secret detention had resumed.
The Military Commissions Act, passed by strong majorities of the Senate and House on Sept. 28 and 29, 2006, gave "the office of the vice president almost everything it wanted," said Yoo, who maintained his contact with Addington after returning to a tenured position at Berkeley.
The new law withstood its first Supreme Court challenge, on April 2. It exempts CIA case officers and other government employees from prosecution for past war crimes or torture
Without repealing the War Crimes Act, which imposes criminal penalties for grave breaches of Geneva's humane-treatment standards, Congress said the president, not the Supreme Court, has final authority to decide what the standards mean - and whether they even apply.
A year after Bush announced at a news conference that "I'd like to close Guantanamo," the camp remains open and has been expanded. Senior officials said Cheney, with few allies left, has turned back strong efforts - by Rice, England, new Defense Secretary Robert Gates and former Bush speechwriter Michael Gerson, among others - to give the president what he said he wants.
Cheney and his aides "didn't circumvent the process," one participant said. "They were just very effective in using it."
More than a year after Congress passed McCain-sponsored restrictions on the questioning of suspected terrorists, the Bush administration is still debating how far the CIA's interrogators may go in their effort to break down resistant detainees. Two officials said the vice president has deadlocked the debate.
Bush said last September that he would "work with" Congress to review "an alternative set of procedures" for "tough" - but, he said, lawful - interrogation. He did not promise to submit legislation or to report particulars to any oversight committee, and he has not done so.
Two questions remain, officials said. One involves techniques to be authorized now. The other is whether any technique should be explicitly forbidden.
According to participants in the debate, the vice president stands by the view that Bush need not honor any of the new judicial and legislative restrictions. His lawyer, they said, has recently restated Cheney's argument that when courts and Congress "purport to" limit the commander in chief's warmaking authority, he has the constitutional prerogative to disregard them.
If Cheney advocates a return to waterboarding, they said, they have not heard him say so. But his office has fought fiercely against an executive order or CIA directive that would make the technique illegal.
"That's just the vice president," said Gerson, the former speechwriter, referring to Cheney's October remark that "a dunk in the water" for terrorists - a radio interviewer's term - is "a no-brainer for me."
Gerson added: "It's principled. He's deeply conscious that this is a dangerous world, and he wants this president and future presidents to be able to deal with that. He feels very strongly about these things, and it's his great virtue and his weakness."
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