No Comment — April 24, 2009, 8:54 am

Straight to the Top

Correction, April 29, 2009:

This post requires correction in two respects. First, as already noted, Ed Whelan, former Acting Assistant Attorney General for the Office of Legal Counsel, has categorically denied attending the July 2003 meeting mentioned there. Second, I wrongly described his writing at the National Review as “defenses of torture enablers.” This phrase is both vague and inaccurate, and I apologize for any misunderstanding it may have caused. Whelan has never written anything for the National Review in defense of torture or torture enablers.

The torture trail starts and ends in the White House. That is perhaps the most inescapable conclusion to be drawn from the flurry of documents released in the last week—first the OLC memoranda, then a newly declassified report of the Senate Armed Services Committee, and finally an amazing document that Attorney General Eric Holder released yesterday, which has still gained little attention. The Holder note presents a summary of CIA interaction with the White House in connection with the approval of the torture techniques that John Yoo calls the “Bush Program.” Holder’s memo refers to the participants by their job titles only, but John Sifton runs it through a decoder and gives us the actual names. Here’s a key passage:

“[The] CIA’s Office of General Counsel [this would include current Acting CIA General Counsel John Rizzo] met with the Attorney General [John Ashcroft], the National Security Adviser [Condoleezza Rice], the Deputy National Security Adviser [Stephen Hadley], the Legal Adviser to the National Security Council [John Bellinger], and the Counsel to the President [Alberto Gonzales] in mid-May 2002 to discuss the possible use of alternative interrogation methods [on Abu Zubaydah] that differed from the traditional methods used by the U.S. military and intelligence community. At this meeting, the CIA proposed particular alternative interrogation methods, including waterboarding.”

The report continues to implicate more Bush officials:
“On July 13, 2002, according to CIA records, attorneys from the CIA’s Office of General Counsel [including Rizzo] met with the Legal Adviser to the National Security Council [Bellinger], a Deputy Assistant Attorney General from OLC [likely John Yoo], the head of the Criminal Division of the Department of Justice [Michael Chertoff], the chief of staff to the Director of the Federal Bureau of Investigation [Kenneth Wainstein], and the Counsel to the President [Alberto Gonzales] to provide an overview of the proposed interrogation plan for Abu Zubaydah.”

It makes clear that sign-off for torture comes from Condoleezza Rice, acting with the advice of her ever-present lawyer, John Bellinger. Another figure making a key appearance is an Acting Assistant Attorney General for the Office of Legal Counsel named M. Edward Whelan III–presumably the same Ed Whelan who is presently melting his keyboard with defenses of the torture-enablers (Update, April 29, 2009: See correction.) at National Review. (Update: Andrew Sullivan also reported on the appearance of Whelan in the memo, but Whelan responded with a categorical denial that he was involved. This suggests that the memo’s chronology is incorrect and requires some clarification.) The central role played by Rice and Bellinger helps explain the State Department’s abrupt about-face on international law issues related to torture immediately after Rice became Secretary of State and Bellinger became Legal Adviser. It also makes clear that Vice President Cheney and President Bush were fully informed of what has happened and approved.

This disclosure comes after the Senate Armed Services Committee’s detailed report, which debunks almost all the claims that Bush Administration officials have thrown up to put investigators off the trail of the torture policy. The claim that the decision to introduce torture was done to accommodate interrogators who were frustrated by their inability to get results, for instance, is belied by the fact that the White House was busy pursuing torture techniques and authority to introduce them before any prisoners had yet been taken.

But each of these disclosures points again to a great mass of potential evidence remaining securely hidden. Colin Powell himself has repeatedly noted that the National Security Council was the center of activity with respect to the introduction of torture and that it carefully documents its internal processes with minutes and records. He urged those pursuing the issue to press for full disclosure of these materials. His guidance (which is remarkable among other things because he will himself be at the center of the inquiry) is revealed by the Holder memorandum to be spot-on.

President Obama and several of his senior advisors are now plainly concerned about the torture issue and the momentum it has achieved. They are troubled that it will seize center stage in Washington and disrupt the president’s ability to implement his agenda. These concerns are reasonable to some extent, but in fact that very concern provides a very good reason to remove the next steps in this crisis from the political process. Unlike the Beltway chatterboxes who fill our airwaves, most Americans appreciate the importance of the torture question. It is not a matter of partisan intrigue. It is a fundamental question of national identity and principle. And this points to a two-pronged solution. First a blue-ribbon commission should be constituted to get to the bottom of what happened, to declassify and publish the still hidden documents concerning the NSC process and what went on in the Justice Department, the Pentagon, and the CIA. The commission should take a long, hard look at Richard Cheney’s self-serving claims that “torture works.” And it should try to steer the country to a solution of these questions that restores a national consensus. If you support the idea of an accountability commission, take a few seconds to go on line here and note your endorsement of the proposal. The second prong will be a prosecutor who can take a look at all the facts and decide who should be charged for criminal wrongdoing. We know now that the White House considers it politically “inconvenient” to do this. So the big open question is whether we have an attorney general who enforces the law, or a Democratic version of Alberto Gonzales. That will become apparent soon enough.

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