Dick Cheney And The Rule Of Law

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Fox News Sunday’s Chris Wallace was able to get an important, and clarifying, admission from Vice President Dick Cheney in an interview that was broadcast today. Wallace mentions a list of techniques that CIA agents are accused of using in violation of the legal guidance that the Bush Administration established. These include threatening a naked detainee with a power drill and a gun, and staging mock executions. Then Wallace asks Cheney this question:

WALLACE: So even these cases where they went beyond the specific legal authorization, you’re OK with it.


There is not much nuance there. Cheney is saying he does not object to the rogue behavior of CIA agents who went beyond their legal mandate. (In the same interview, Cheney says that the Bush Justice Department found there was nothing “improper or illegal” in this behavior, a determination that is now under review by the Obama Justice Department.)  Speaking of the interrogation program as a whole, Cheney says, “It was good policy. It was properly carried out. It worked very, very well.”

Power drills and mock executions are not the only extralegal techniques that CIA employees are alleged to have committed. One CIA contractor, according to the CIA Inspector General, is alleged to have beaten an Afghan detainee to death with a large metal flashlight and his foot. Released criminal records show that another CIA employee was interrogating a detainee at Abu Ghraib prison in a stress position with a bag over his head, when the detainee died of asphyxiation. Assuming that Cheney did not misspeak, his statement to Wallace suggests that he believes these deaths are “OK’ given the circumstances.

There are the beginnings here of a possible pattern in Cheney’s thoughts–the suggestion that violations of law in the service of a greater national good are forgivable. As TIME’s Massimo Calabresi and Michael Weisskopf wrote in a cover story last month, the disagreement between President George Bush and Cheney over the pardoning of Cheney aide I. Lewis “Scooter” Libby similarly focused on this question of whether the rule of law should be sacrosanct. Bush saw his administration as a sort of repudiation of failings of the Bill Clinton, who was charged with perjury and obstruction of justice for his statements to prosecutors about Monica Lewinsky. Calabresi and Weisskopf describe Bush’s final debate over the Libby pardon as this discussion with his personal attorney Jim Sharp.

While packing boxes in the upstairs residence, according to his associates, Bush noted that he was again under pressure from Cheney to pardon Libby. He characterized Cheney as a friend and a good Vice President but said his pardon request had little internal support. If the presidential staff were polled, the result would be 100 to 1 against a pardon, Bush joked. Then he turned to Sharp. “What’s the bottom line here? Did this guy lie or not?”

The lawyer, who had followed the case very closely, replied affirmatively.

Bush indicated that he had already come to that conclusion too.

“O.K., that’s it,” Bush said.

The Cheney argument for Libby’s pardon focused on much more than whether or not Libby was innocent of the crime in question. As Calabresi and Weisskopf recount, the Cheney argument went like this:

The Vice President argued the case in that Oval Office session, which was attended by the President and his top aides. He made his points in a calm, lawyerly style, saying Libby was a fall guy for critics of the Iraq war, a loyal team player caught up in a political dispute that never should have turned into a legal matter. They went after Scooter, Cheney would say, because they couldn’t get his boss. But Bush pushed past the political dimension. “Did the jury get it right or wrong?” he asked.

Cheney replied that the conviction for obstruction of justice was based on what amounted to a case of “he said, he said,” a disagreement between his longtime aide and a journalist. Libby had told the grand jury he remembered first hearing Plame’s name from NBC’s Tim Russert. But notes obtained by prosecutors indicated that Cheney had been the first to identify her to Libby. And Russert denied at Libby’s trial that he had mentioned Plame to the defendant. The jury sided with Russert. Cheney, however, considered it an open question. “Who do you believe, Scooter or Russert?” he asked Bush.

And Cheney went further. Even if Russert was right, Libby may have honestly forgotten what was said during a single conversation in a typically busy day. Memories are fallible. Only an overzealous prosecutor and a liberal Washington jury would criminalize a bad one, he argued.

In the end, the Bush decision not to pardon Libby came down to Bush’s conviction that the rule of law must be respected. It would be interesting to know if the former President now agrees with Cheney’s contention that it was “OK” for CIA interrogators to go beyond what the law allowed.

[UPDATE: See my addendum to this post here.]

One other note: Last week, I wrote a long blog post giving a close reading of a statement Cheney issued after the CIA Inspector General report was released. I found it significant that in that statement Cheney did not claim, as he has before and since, that the enhanced interrogation techniques led to intelligence that saved lives. The next day, I updated the post with a statement from a Cheney spokesperson saying that my interpretation was incorrect. Cheney does still believe that the released documents show that the enhanced techniques saved lives. As Cheney tells Wallace in the same Fox interview:

My sort of overwhelming view is that the enhanced interrogation techniques were absolutely essential in saving thousands of American lives, in preventing further attacks against the United States, in giving us the intelligence we needed to go find Al Qaida, to find their camps, to find out how they were being financed.

Two documents that Cheney asked to be released last week described in some detail the intelligence that was gained from detainees who were subjected to harsh interrogations, but were silent, at least as redacted, on the role of harsh techniques in producing that information. The CIA Inspector General report concluded that judging the effectiveness of the harsh techniques was a “subjective” task. Another July 20, 2007 memo released last week, from the Justice Department’s Office of Legal Counsel, asserts that the techniques were effective:

For example, we understand that enhanced interrogation techniques proved particularly crucial in the interrogations of Khalid Shaykh Muhhamad and Abu Zubaydah. Before the CIA used enhanced interrogations techniques in interrogating Muhammad, he resisted giving any information about future attacks, simply warning, “soon, you will know.” As the President informed the Nation in his September 6th address, once enhanced techniques were employed, Muhammad provided information revealing the “Second Wave,” a plot to crash a hijacked airliner into the Library Tower in Los Angeles–the tallest building on the West Coast. Information obtained from Muhammad led to the capture of many of the al Qaeda operatives planning the attack. Interrogations of Zubaydah–again, once enhanced techniques were employed–revealed two al Qaeda operatives already in the United States and planning to destroy a high-rise apartment building and to detonate a radiological bomb in Washington D.C. The techniques have revealed plots to blow up the Brooklyn Bridge and to release mass biological agents in our Nation’s largest cities.

The 2004 CIA Inspector General report notes that there are several reasons that it is difficult to determine the effectiveness of an enhanced technique (EIT).

(1) the Agency cannot determine with any certainty the totality of the intelligence the detainee actually possesses; (2) each detainee has different fears of and tolerance for EITs; (3) the application of the same EITs by different interrogators may have different results; and

The last reason that the effectiveness has been hard to determine is redacted from the released version of the report.