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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Ashley arrived for her prenatal appointment at Black Hills Obstetrics and Gynecology, in Rapid City, South Dakota, wearing a black zip-up hoodie and Converse sneakers.1 To explain her absence from work that morning — a Tuesday in April 2015 — she had told a co-worker that she was having “female issues.” She was twenty-five years old and eight weeks pregnant. She had been separated from her husband, with whom she had a five-year-old son, for the better part of a year. The guy who’d gotten her pregnant was someone she’d met at the gym, and he’d made it abundantly clear that he wanted nothing more to do with her. Ashley found herself hoping that the doctor would discover some kind of fetal defect, so that her decision would be easier. She glanced across the waiting room at a television playing a birth-control ad and laughed darkly. “Jesus, Lord, it would be so nice if someone just pushed me down a flight of stairs.”

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Ashley arrived for her prenatal appointment at Black Hills Obstetrics and Gynecology, in Rapid City, South Dakota, wearing a black zip-up hoodie and Converse sneakers.1 To explain her absence from work that morning — a Tuesday in April 2015 — she had told a co-worker that she was having “female issues.” She was twenty-five years old and eight weeks pregnant. She had been separated from her husband, with whom she had a five-year-old son, for the better part of a year. The guy who’d gotten her pregnant was someone she’d met at the gym, and he’d made it abundantly clear that he wanted nothing more to do with her. Ashley found herself hoping that the doctor would discover some kind of fetal defect, so that her decision would be easier. She glanced across the waiting room at a television playing a birth-control ad and laughed darkly. “Jesus, Lord, it would be so nice if someone just pushed me down a flight of stairs.”

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Ashley arrived for her prenatal appointment at Black Hills Obstetrics and Gynecology, in Rapid City, South Dakota, wearing a black zip-up hoodie and Converse sneakers.1 To explain her absence from work that morning — a Tuesday in April 2015 — she had told a co-worker that she was having “female issues.” She was twenty-five years old and eight weeks pregnant. She had been separated from her husband, with whom she had a five-year-old son, for the better part of a year. The guy who’d gotten her pregnant was someone she’d met at the gym, and he’d made it abundantly clear that he wanted nothing more to do with her. Ashley found herself hoping that the doctor would discover some kind of fetal defect, so that her decision would be easier. She glanced across the waiting room at a television playing a birth-control ad and laughed darkly. “Jesus, Lord, it would be so nice if someone just pushed me down a flight of stairs.”

In the exam room, she perched on the table with her feet crossed at the ankles, her blond hair brushing the back of her pink hospital gown. “I don’t know what’s available for me here,” she told her doctor, Katherine Degen, who sat facing her on a stool. “I figured nothing.”

 Some names and identifying details have been changed. 

“Big, fat zero, unfortunately,” Degen said, making a 0 with her fingers. The last doctor who provided abortions in Rapid City retired in 1986, three years before Ashley was born.

The baby was due in November, when Ashley, who was a nurse, hoped to be enrolled in a graduate program to become a nurse practitioner. Getting pregnant as a teenager had forced her to put that dream on hold, but she had thought that she was finally ready; she had even submitted her application shortly before the March 15 deadline. For the first time in her adult life, Ashley felt as if her plans were coming together. Then she missed her period.

It would be too difficult to attend school as a single mother of two, Ashley knew. She had made an appointment for three weeks from now at the nearest abortion clinic, in Billings, Montana, 318 miles away. But just a week and a half ago, her husband had said he wanted to get back together and offered to raise the child as his own. Was it a sign that she was meant to continue the pregnancy? As a rule, Ashley approached her problems with resolve. She was capable and tough; she liked shooting guns and lifting weights. She kept track of her stats and checked off her goals as she achieved them one by one. Yet the dilemma before her had shaken her confidence. She leaned back and turned to watch the ultrasound screen. The black-and-white image danced. A sharp, fast thumping emerged from the machine. As Degen removed the wand, Ashley wiped the corner of her eye.

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