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.

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