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Context of 'Late 2005: Justice Department Issues Secret Ruling Declaring All CIA Interrogation Techniques Legal'

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Quiet opposition builds within the Justice Department against the White House’s attacks on civil liberties and governmental process in the name of national security. The opposition is led by James Comey, the deputy attorney general under John Ashcroft, and includes the chief of the Office of Legal Counsel, Jack Goldsmith, and other like-minded Justice Department lawyers and officials. Comey, Goldsmith, and many of their colleagues will resign from their posts, some perhaps pressured by the White House to get out without making a fuss (see June 17, 2004). Comey and Goldsmith are the point men of this opposition group, though they will speak little in public about their experiences until they testify before the Senate in 2007 (see May 15, 2007 and October 2, 2007).
Standing 'Up to the Hard-Liners' - Newsweek, one of the only mainstream media outlets to report on this “insurrection” at any length, will call it “one of the most significant and intriguing untold stories of the war on terror.” The magazine will report in 2006: “These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as far-fetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law.… These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men.” Comey, Goldsmith, and their colleagues do not oppose the war on terror in principle, and share the administration’s concerns about the restraints imposed on the government in compiling intelligence on suspected terrorists. Their opposition centers on the process used by the White House, which routinely ignores and runs over Congress, the judiciary, and the law in implementing its agenda.
White House Denial - The White House will continue to deny that this opposition group ever existed, with a spokeswoman for Vice President Dick Cheney saying in 2006: “The proposition of internal division in our fight against terrorism isn’t based in fact. This administration is united in its commitment to protect Americans, defeat terrorism and grow democracy.” [Newsweek, 2/6/2006]

Entity Tags: US Department of Justice, John Ashcroft, Office of Legal Counsel (DOJ), James B. Comey Jr., Jack Goldsmith, Bush administration (43), Richard (“Dick”) Cheney

Timeline Tags: Civil Liberties

The Justice Department issues a secret opinion that countermands and contradicts the administration’s official policy that torture is “abhorrent” and will not be practiced by US military or law enforcement officials (see December 30, 2004). The secret opinion is, the New York Times writes two years later while publicly revealing its existence, “an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.” The opinion gives explicit authorization to abuse detainees with a combination of physical and psychological abuse, including head-slapping, stress positioning, simulated drowning (“waterboarding”), and prolonged exposure to intense cold. New attorney general Alberto Gonzales (see November 10, 2004) approves the memo over the objections of deputy attorney general James Comey, himself preparing to leave the Justice Department after a series of battles over the legality of torture and the domestic surveillance program (see March 10-12, 2004). Comey says at the time that everyone at the department will be “ashamed” of the new opinion once the world learns of it. [New York Times, 10/4/2007]

Entity Tags: US Department of Justice, Alberto R. Gonzales, Central Intelligence Agency, New York Times

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Steven Bradbury.Steven Bradbury. [Source: Mark Wilson / Getty Images]Steven Bradbury is nominated by President Bush to head the Justice Department’s Office of Legal Counsel (OLC). He will continue in that position on an acting basis into 2008, even though Congressional Democrats refuse to confirm him for the job, and even though his continuation in the post violates the Vacancies Reform Act, which precludes non-confirmed appointees for holding their positions for over 210 days (see October 16, 2007). [Washington Times, 9/20/2007; New York Times, 10/4/2007; TPM Muckraker, 10/19/2007] Bradbury takes over from Jack Goldsmith, who resigned the position under fire (see June 17, 2004).
Arm of the White House - Bradbury has a long history of supporting the White House’s agenda of expansive executive power. He came to the Justice Department after clerking with Supreme Court Justice Clarence Thomas and mentoring under former Whitewater special counsel Kenneth Starr. [New York Times, 10/4/2007] A co-founder of the Federalist Society [International Herald Tribune, 10/15/2007] , he is as staunchly conservative as any Bush appointee, but unlike some of the more outspoken of his colleagues, he comes across as low-key, pragmatic, and non-confrontational. As a Justice Department lawyer, Bradbury proved himself in line with the neoconservative views of Vice President Dick Cheney and Cheney’s chief of staff, David Addington. Former State Department senior official Philip Zelikow recalls Bradbury as being “fundamentally sympathetic to what the White House and the CIA wanted to do.” Bradbury was brought in to the OLC in part to rein in that office, which under its previous head Jack Goldsmith became the hub of the internal opposition to Bush’s policies of “enhanced interrogation” and domestic surveillance (see Late 2003-2005). In 2005, Bradbury signs two secret Justice Department memos giving broad authorization and legal justification for the CIA’s torture of terrorist suspects (see February 2005 and Late 2005),. Bradbury works closely with then-White House counsel and current attorney general Alberto Gonzales to bring the Justice Department back into line with White House demands. Conservative legal scholar Douglas Kmiec, who headed the OLC under former presidents Reagan and George H. W. Bush, says he believes the intense pressures from the current administration’s campaign against terrorism has warped the OLC’s proper role. “The office was designed to insulate against any need to be an advocate,” Kmiec says. Now the OLC has “lost its ability to say no.… The approach changed dramatically with opinions on the war on terror. The office became an advocate for the president’s policies.”
Probation - Bradbury was first considered for the job after Gonzales, newly confirmed as attorney general, rejected the idea of promoting Daniel Levin, the acting head of the OLC after Goldsmith’s departure. Gonzales considered Levin unsuitable for the job because of his independence and support for Goldsmith’s dissents. Instead, Gonzales chose Bradbury for the job. But the White House was uncertain of Bradbury’s reliability, and so placed him on a sort of “internal trial,” monitored by Gonzales’s replacement at the White House, Harriet Miers. Miers judged Bradbury’s loyalty to the president and his willingness to work with Gonzales in justifying White House policy decisions. Bradbury reportedly understands that his “probation” is intended for him to show just how compliant and supportive he is of the White House, and he soon wins the confidence of the White House by completely aligning himself with Addington. [New York Times, 10/4/2007]
'Sordid criminal conspiracy' - Harper’s Magazine commentator and lawyer Scott Horton will write in November 2007 that it is obvious “Bradbury was picked for one reason: to provide continuing OLC cover for the torture conspirators.… The Justice Department’s strategy has been to cloak Bradbury’s torture memoranda in secrecy classifications and then to lie aggressively about their very existence.… This episode demonstrates once more the intimate interrelationship between the policies of torture, secrecy, and the right to lie to the public and the courts in the interests of shielding the Bush administration from public embarrassment. And once more the Justice Department is enlisted not in the enforcement of the law, but rather in a sordid criminal conspiracy.” [Harper's, 11/7/2007]

Entity Tags: Kenneth Starr, Richard (“Dick”) Cheney, National Security Agency, Philip Zelikow, US Department of Justice, Steven Bradbury, Scott Horton, Vacancies Reform Act, James B. Comey Jr., Jack Goldsmith, Office of Legal Counsel (DOJ), Harper’s Magazine, Clarence Thomas, Central Intelligence Agency, Bush administration (43), Daniel Levin, Alberto R. Gonzales, Harriet E. Miers, Geneva Conventions, Douglas Kmiec, David S. Addington, George Herbert Walker Bush

Timeline Tags: Civil Liberties

As Congress debates legislation that will outlaw “cruel, inhuman, and degrading” treatment of terrorist suspects and detainees in US custody, the Justice Department issues a secret opinion, one that few lawmakers even know exists, ruling that none of the CIA’s interrogation methods violate that standard. The Justice Department has already issued one secret opinion countermanding the Bush administration’s stated position that torture is “abhorrent” (see February 2005). Both rulings are efforts by Attorney General Alberto Gonzales and White House officials to realign the Justice Department with the White House after an in-house revolt by many Justice officials threw administration policies on torture and domestic surveillance into doubt (see Late 2003-2005). Though the public debate on torture becomes ever more pervasive during President Bush’s second term, the two rulings will remain in effect through the end of 2007 and beyond, helping the White House give US officials the broadest possible legal latitude for abusing and torturing prisoners. As late as October 2007, the White House will insist that it has always followed US and international law in its authorization of interrogation practices. Those assurances will be countered by an array of current and former officials involved in counterterrorism (see October 3, 2007). [New York Times, 10/4/2007] In 2007, Jameel Jaffer of the American Civil Liberties Union (ACLU) will say in conjunction with a lawsuit filed against the Justice Department’s interrogation practices, “These torture memos should never have been written, and it is utterly unacceptable that the administration continues to suppress them while at the same time declaring publicly that it abhors torture. It is now obvious that senior administration officials worked in concert over a period of several years to evade and violate the laws that prohibit cruelty and torture. Some degree of accountability is long overdue.” The ACLU will also note that the administration had failed to disclose the existence of the two opinions in its court filings, a failure characterized by the administration as an accidental oversight. [Harper's, 11/7/2007]

Entity Tags: Jameel Jaffer, Alberto R. Gonzales, American Civil Liberties Union, Bush administration (43), George W. Bush, US Department of Justice, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

In October 2007, the New York Times will report that in July, “after a month-long debate inside the administration, President Bush signed a new executive order authorizing the use of what the administration calls ‘enhanced’ interrogation techniques—the details remain secret—and officials say the CIA again is holding prisoners in ‘black sites’ overseas.” The executive order is said to have been reviewed and approved by Steven Bradbury, head of the Office of Legal Counsel. [New York Times, 10/4/2007] In late 2005 the Justice Department issued a secret memo declaring all aggressive interrogation techniques used by the CIA legal (see Late 2005), so apparently this mostly reconfirms the gist of that earlier ruling. It has been clear since April 2007 that the secret CIA prisons are still operating (see Autumn 2006-Late April 2007). Hours after the new executive order is issued, CIA Director Michael Hayden issues a secret memo to his CIA employees: “The President’s action - along with the Military Commissions Act of 2006 - gives us the legal clarity we have sought. It gives our officers the assurance that they may conduct their essential work in keeping with the laws of the United States.” One senior Bush administration official will later hint that the order does allow sleep deprivation to be used but does not allow exposure to extremes of hot and cold. [MSNBC, 9/13/2007] Intelligence officials also later say that the order not to allow the use of waterboarding. [New York Times, 12/7/2007]

Entity Tags: Steven Bradbury, Office of Legal Counsel (DOJ), George W. Bush, Central Intelligence Agency, Michael Hayden

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

The New York Times reveals that the Justice Department issued two secret rulings authorizing far more extensive use of torture and abuse during the interrogation of terror suspects than has previously been acknowledged by the White House (see February 2005 and Late 2005). The White House’s deputy press secretary, Tony Fratto, makes the same counterclaim that Bush officials have made for years, saying, “We have gone to great lengths, including statutory efforts and the recent executive order, to make it clear that the intelligence community and our practices fall within US law” and international agreements. But that claim is countered by the statements of over two dozen current and former officials involved in counterterrorism. When Attorney General Alberto Gonzales resigned in September after accusations of misleading Congress and the public on a wide array of issues, he said in his farewell speech that the Justice Department is a “place of inspiration” that had balanced the necessary flexibility to pursue the administration’s war on terrorism with the need to uphold the law and respect civil liberties (see July 25, 2007). But many of Gonzales’s associates at the Justice Department now say that Gonzales was usually compliant with the wishes of Vice President Cheney and Cheney’s chief counsel and adviser, David Addington, to endorse whatever interrogation policies the White House wished in the name of protecting the nation, no matter what conflicts may arise with US and international law or whatever criticisms from other governments, Congressional Democrats, or human rights groups may ensue. Critics, including many of the officials now speaking out, say that Gonzales turned the Justice Department from the independent law enforcement arm of the US government into just another arm of the White House. [New York Times, 10/4/2007]

Entity Tags: Alberto R. Gonzales, Bush administration (43), David S. Addington, New York Times, US Department of Justice, Richard (“Dick”) Cheney, Tony Fratto

Timeline Tags: Torture of US Captives, Civil Liberties

The White House denies reports that a secret Justice Department opinion in 2005 authorized the use of torture against detainees suspected of terrorist connections, or superseded US anti-torture laws (see February 2005). Press secretary Dana Perino tells reporters: “This country does not torture. It is a policy of the United States that we do not torture and we do not.” The existence of the 2005 memo, signed by then-Attorney General Alberto Gonzales, was revealed by the New York Times. It apparently superseded a late 2004 memo that characterized torture as “abhorrent” and limited the use of “harsh interrogation techniques” (see December 30, 2004). Perino confirms the existence of the 2005 memo, but will not comment on what techniques it authorized. She merely says that the memo did not reinterpret the law. Justice Department spokesman Brian Roehrkasse says the 2004 opinion remains in effect and that “neither Attorney General Gonzales nor anyone else within the department modified or withdrew that opinion. Accordingly, any advice that the department would have provided in this area would rely upon, and be fully consistent with, the legal standards articulated in the December 2004 memorandum.” Senator John McCain (R-AZ), a consistent opponent of torture, says he was “personally assured by administration officials that at least one of the techniques allegedly used in the past, waterboarding, was prohibited under the new law.” The American Civil Liberties Union (ACLU) calls the 2005 memo and other Justice Department memos authorizing torture “cynical attempt[s] to shield interrogators from criminal liability and to perpetuate the administration’s unlawful interrogation practices.” House Democrats want Steven Bradbury, the acting head of the Justice Department’s Office of Legal Counsel (OLC), to “be made available for prompt committee hearings.” Senator Barack Obama (D-IL), a presidential candidate, says: “The secret authorization of brutal interrogations is an outrageous betrayal of our core values, and a grave danger to our security. We must do whatever it takes to track down and capture or kill terrorists, but torture is not a part of the answer—it is a fundamental part of the problem with this administration’s approach.” Perino does not comment on another secret memo that apparently concluded all of the CIA’s torture methodologies were legal (see Late 2005). [Associated Press, 10/4/2007]

Entity Tags: Brian Roehrkasse, American Civil Liberties Union, Alberto R. Gonzales, Barack Obama, US Department of Justice, Steven Bradbury, Dana Perino, Bush administration (43), Office of Legal Counsel (DOJ), John McCain

Timeline Tags: Torture of US Captives

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