via War and Piece:
Here's the second part of the Post's series on Cheney: "Pushing the envelope on presidential power."
Addington was behind the Yoo torture memo:
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-Qaeda 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 on 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. [Read the opinion] Distributed under the signature of Assistant Attorney General Jay S. Bybee, the opinion also 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 Berkeley 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 that Addington, as well as Gonzales and deputy White House counsel Timothy E. 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 of 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 specific interrogation techniques proposed by the CIA -- including waterboarding, a form of near-drowning that the U.S. government classified as a war crime in 1947. The opinion drew the line against one request: threatening to bury a prisoner alive.
Addington's deliberate intent on finding ways to authorize cruel, inhuman and degrading treatment which is a prosecutable war crime seems far more demonstrably and comprehensively provable from the documents and witness testimony the Washington Post has obtained than what prosecutors had on many of the people who have ended up at the Hague on war crimes charges. And there's surely no shortage of people who can testify about cruel, inhuman and degrading treatment they experienced as a result. See the bit in the article about David Hicks, for instance.
And this just blows your mind:
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 B. Olson, a conservative stalwart whose wife, Barbara, had been killed less than a year before 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. But the CIA opposed any outside contact, fearing relief from the isolation and dependence that interrogators relied upon to break the will of suspected terrorists.
Flanigan said that Addington's personal views leaned more toward Olson than against him, but that he beat back the proposal to grant detainees access to lawyers, "because that was the position of his client, the vice president."
Decision time came in a heated meeting in Gonzales's corner office on the West Wing's second floor, 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 A. Berenson, a former law clerk to Supreme Court Justice Anthony M. Kennedy.
Berenson told colleagues that 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. Another former Kennedy clerk, White House lawyer Brett Kavanaugh, had made the same argument earlier. Addington accused Berenson of surrendering executive power on a fool's prophecy about an inscrutable court. Berenson accused Addington of "know-nothingness."
Gonzales listened quietly as the Justice Department and his own staff lined up against Addington. Then he decided in favor of Cheney's lawyer.
John D. 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. He was the E.F. Hutton in the room. When he talked, everybody would listen." Cheney, he said, "compelled people to think carefully about whatever he mentioned."
When a U.S. District Court ruled several months later that Padilla had a right to counsel, Cheney's office insisted on sending Olson's deputy, Paul Clement, on what Justice Department lawyers called "a suicide mission": to tell Judge Michael B. Mukasey that he had erred so grossly that he should retract his decision. Mukasey derided the government's "pinched legalism" and added acidly that his order was "not a suggestion or request."
Cheney's strategy fared worse in the Supreme Court, where two cases arrived for oral argument alongside Padilla's on April 28, 2004.
They tried to strong arm a judge to retract his ruling? In what kind of countries does that happen?
This is like court testimony, with plenty of people (including notably, Yoo) willing to point to who precisely in Cheney's office and the White House made what decisions. It seems to be something they have thought carefully about. One senses, not just with an eye towards history, but with an eye to possible future prosecutions.
Posted by Laura at 10:36 PM
http://www.warandpiece.com/blogdirs/006340.html
