No Comment — June 9, 2009, 10:10 am

Cheney, the DOJ, and Torture: Two Takes

On Sunday, the New York Times led with a story by Scott Shane and David Johnston entitled “U.S. Lawyers Agreed on Legality of Brutal Tactic.” Yesterday, the Washington Post’s Dan Froomkin posted “How Cheney Bent DOJ to His Will.” The two stories treat the same material, namely a series of internal emails authored in 2005 by then-Deputy Attorney General James Comey concerning a legal reassessment of aspects of the Bush program of intelligence interrogation. The materials had been disclosed by the Times with the publication of their story. But a reading of the two articles side-by-side is extremely revealing.

Froomkin puts the information in the context of the ongoing study of the process of how the Bush Administration introduced torture techniques as a matter of policy. The striking new disclosure in these materials is Alberto Gonzales’s admission that he was under strong pressure from Vice President Dick Cheney to provide legal cover for the torture techniques. Gonzales responded by passing this pressure straight down the line at Justice. This highlights a key question hovering over Gonzales’s term as attorney general: to what extent were his actions dictated to him by political figures in the White House? A special prosecutor, Nora Dannehy, is now studying aspects of that question and is believed to have Gonzales squarely in her sights.

Shane and Johnston, however, emphasize that “even some who believed that using tough tactics was a serious mistake agreed on a basic point: the methods themselves were legal.” They portray Comey, Jack Goldsmith, and other figures hitherto portrayed as anti-torture dissenters within the Department, as substantially sharing the legal analysis of the torture memo writers. There are two major problems with the Shane and Johnston analysis. First, the conclusions they reach cannot really be justified on the basis of a handful of highly informal email messages ripped from the context of a longer dialogue. They could only be reached after a complete study of the record surrounding the process by which the memos were prepared and issued. At this point we do not have the full documentary record, nor have we heard in any detail from the major participants. But looking at the documents that are available, the Shane and Johnston thesis strikes me as incorrect, indeed as an embarrassingly weak and naïve take on some complex bureaucratic infighting. Glenn Greenwald lays out a good deal of the balance of the documentary record and makes the case against Shane and Johnston here. But beyond this, some actions speak louder than documents, and in this case it is remarkable that a number of the dissenters, led by Comey and Goldsmith, reacted to the reconfirmation of the Bush torture program by leaving the Justice Department. That strikes me as a very important fact, which the Times writers don’t find worth a mention. Second, this information almost certainly came to the Times from John Yoo, Steven G. Bradbury, or Jay Bybee, who are the targets of an internal Justice Department ethics probe, or from persons close to them. Each of these individuals had access to the complete report and the documents it assembled. At the order of Michael B. Mukasey, who did everything in his power to spike and influence the report, they were to receive copies of the entire report in order to comment on it; indeed, again at Mukasey’s behest, Bradbury was even authorized to influence the report from inside the team that assembled it. The torture memo writers are eager to show that their views were in fact widely shared by lawyers inside the Justice Department and thus were not aberrational. It’s almost certain that one of them decided selectively to leak documents that would help make their case, in the process pushing the line they wanted the Times to run with. Shane and Johnston swallowed their line uncritically. In fact, there is a such a failure of critical detachment in the Times reporting that bad journalistic practice hardly begins to explain it. Rather, it looks like the reporters are consciously cultivating their sources by giving their story a furious spin that the torture camp will love.

Moreover, this is a second offense for the Shane and Johnston team. Back on May 6, they wrote “Interrogation Memos: Inquiry Suggests No Charges,” again working on the basis of information almost certainly furnished by the torture-memo writers and highlighting that the internal ethics report would not recommend criminal charges. That is accurate, and it is also completely misleading. The Office of Professional Responsibility, which prepared the report, does not have authority to assess and recommend criminal charges—that is reserved for other branches of the Justice Department. The Times had been spun vigorously. A similar example can be found in Eric Lichtblau’s article “No Charges Expected in Dismissal of Attorneys,” on the outcome of the internal investigation into the U.S. attorney’s scandal, in which he said that no criminal charges would result. This article was a pre-release effort to stem the damage from a harshly critical report, and it was, like the Shane and Johnston reports, technically correct and highly misleading. The Office of Professional Responsibility and Inspector General do not pass on criminal law accountability. They recommend that a special prosecutor be appointed to do that, and that’s just what happened. These examples all show why the New York Times has emerged as the torture team’s paper of choice for many years. No major paper is quite so prepared to put the news through the spin cycle for the benefit of its sources.

Share
Single Page

More from Scott Horton:

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

May 2016

Fighting Chance

= Subscribers only.
Sign in here.
Subscribe here.

Front Runner

= Subscribers only.
Sign in here.
Subscribe here.

The Habits of Highly Cynical People

= Subscribers only.
Sign in here.
Subscribe here.

Unhackable

= Subscribers only.
Sign in here.
Subscribe here.

American Imperium

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Elisabeth Zerofsky on Marine Le Pen, Paul Wachter on the quest for an unhackable email, Rebecca Solnit on cynical people, Andrew J. Bacevich on truth and fiction in the age of war, Samuel James photographs E.P.L. soccer, a story by Vince Passaro, and more

I sat in a taxi with Emma and her son, Stak, all three bodies muscled into the rear seat, and the boy checked the driver’s I.D. and immediately began to speak to the man in an unrecognizable language.

I conferred quietly with Emma, who said he was studying Pashto, privately, in his spare time. Afghani, she said, to enlighten me further.

Illustration by Taylor Callery
Article
Front Runner·

= Subscribers only.
Sign in here.
Subscribe here.

"The F.N. asked to be sent to an institution whose legitimacy it did not accept, and French voters rewarded the party with first place in the election."
Illustration (detail) by Matthew Richardson
Memoir
I Am Your Conscious, I Am Love·

= Subscribers only.
Sign in here.
Subscribe here.

A paean 2 Prince
"And one thinks, Looking into Prince's eyes must be like looking at the world."
Photo ©© PeterTea
Article
Stop Hillary!·

= Subscribers only.
Sign in here.
Subscribe here.

"As wacky as it sometimes appears on the surface, American politics has an amazing stability and continuity about it."
Article
Plexiglass·

= Subscribers only.
Sign in here.
Subscribe here.

I sat in a taxi with Emma and her son, Stak, all three bodies muscled into the rear seat, and the boy checked the driver’s I.D. and immediately began to speak to the man in an unrecognizable language.

I conferred quietly with Emma, who said he was studying Pashto, privately, in his spare time. Afghani, she said, to enlighten me further.

Photograph (detail) by Karine Laval

Number of cows electrocuted by a faulty milking machine in Maidstone, England, last March:

33

Entomologists working in Iran and Turkey learned that a rare species of solitary bee builds brood chambers of brightly colored flower petals.

The Finnish postal service announced it will begin mowing lawns on Tuesdays.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Mississippi Drift

By

Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'

Subscribe Today