Detailed Discussions Were Held About Techniques to Use on al Qaeda SuspectsBy JAN CRAWFORD GREENBURG, HOWARD L. ROSENBERG and ARIANE de VOGUE
April 9, 2008
In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News
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Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects -- whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.
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The advisers were members of the National Security Council's Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.
At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.
ABC News reported tonight that President Bush’s most senior and trusted advisers met in “
dozens of top-secret talks and meetings in the White House” beginning in 2002 to approve the use of “combined” interrogation techniques (the joint use of harsh interrogation techniques). Those tactics included whether detainees “would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.”
Members of the National Security Council’s Principals Committee — Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft — approved the use of these techniques. “Sources said that at each discussion, all the Principals present
approved.” According to ABC’s report, Ashcroft indicated he
was troubled by the meetings:
According to a top official, Ashcroft asked aloud after one meeting: “Why are we talking about this in the White House? History will not judge this kindly.”
Watch ABC’s report:
Here is where it gets interesting. Prior to the story,
Jack Balkin wrote the following piece:
Wednesday, April 09, 2008
JB
Marc Ambinder
say it's a "hidden secret[] in Washington that a Democratic Justice Department is going to be very interested in figuring out whether there's a case to be made that senior Bush Administration officials were guilty of war crimes." If so, it's news to me.
Remember that
sections 8 and 6(b) of the Military Commissions Act of 2006 effectively insulated government officials from liability for many of the violations of the War Crimes Act they might have committed during the period prior to 2006. Moreover,
as Marty has pointed out, there's a strong argument that a later Justice Department would not prosecute people who reasonably relied on legal advice from a previous Justice Department. Perhaps the Justice Department could argue that the officials' reliance was unreasonable, but that might be difficult to show.
And putting aside the purely legal obstacles to a prosecution for war crimes, there's also the political cost. Why would an Obama or Clinton Administration waste precious political capital early on with a politically divisive prosecution of former government officials? One can imagine the screaming of countless pundits arguing that the Democrats were trying to criminalize political disagreements about foreign policy. Such a prosecution would make politics extremely bitter and derail any chance for bipartisan cooperation on almost any significant issue. Obama or Clinton would rather get a health care bill passed, deal with the economy, or try to solve the Iraq mess, than have the first several years of their Administrations consumed by a prosecution for war crimes by officials in the Bush Administration.
As I noted
in a previous post, the most likely prosecution for war crimes will not occur in the United States; if it occurs at all, it will come through the use of universal jurisdiction against Bush Administration officials who make the mistake of traveling outside the United States. There are certainly plenty of people outside this country who would like to try Bush Administration officials for war crimes. However, perhaps predictably, an Obama or Clinton Administration would probably try to exert political influence to nip any such prosecutions in the bud, worried that acquiescing in such prosecutions would set a very bad precedent for American interests.
It's important to understand the point I'm making here.
It is not that certain members of the Bush Administration haven't committed war crimes. I'm pretty certain that at least some of them have. The point rather is that it is very unlikely that they will ever be brought to justice for it, at least in our own country-- despite the fact that there are statutes on the books which assert that the commission of war crimes violates our laws. That is not a normative recommendation. It is rather a prediction about power politics and about the deeply unjust world that we live in.
(emphasis added)
After the ABC story broke, Balkin wrote this:
Wednesday, April 09, 2008
JB
ABC News
reports that "In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency."
<...>
So now the plot thickens. John Ashcroft, it appears, repeatedly signed off on the legality of the techniques but was squeamish about going into details, arguing "that senior White House advisers should not be involved in the grim details of interrogations." "According to a top official, Ashcroft asked aloud after one meeting: `Why are we talking about this in the White House? History will not judge this kindly.'"
Moreover, the committee's approvals, it appears, continued even after Jack Goldsmith disavowed the Yoo torture memos:
moreBalkin then picks up on a suggestion, an alternative to a war crimes trial.
Thursday, April 10, 2008
JB
Mark Tushnet writes that prosecution for war crimes isn't the only alternative:
Ah, Jack, you're not thinking outside the box. There's a difference between "figuring out whether there's a case to be made" and instituting a prosecution. I've been pushing the idea of an internal Church Committee like report on what happened, leaving it to the public to decide whether it approves of what Bush et al. did. My fantasy is that there would be a section simply describing the principles of liability laid out in the Nuremberg lawyers' judgment -- and let people draw their own conclusions about Yoo.
A series of congressional investigations into the interrogation and detention policies of the previous Administration, or a special Presidential "truth commission" like the 9/11 Commission would have certain advantages. They would require only that the next Administration cooperate with Congress-- for example, by declassifying certain OLC opinions and other documents that should never have been classified, and by giving permission for certain executive branch officials to testify before Congress.
That does not mean that there would be no obstacles to such Congressional investigations or to a "truth commission." An Obama or Clinton Administration might not want to reveal everything that Congressional investigators or members of a truth commission wanted, partly to preserve executive branch prerogatives, partly because some classified materials still affect national security, and partly because some classified materials would embarrass not only the Bush Administration but also the present Obama/Clinton Administration and the previous Administration of Bill Clinton.
It's also possible that members of the Bush Administration would refuse to testify, arguing that they cannot do so without permission of former President Bush. If the commission or the congressional committee then held them in contempt, this would put the next Justice Department to the unpleasant choice of deciding whether to prosecute these former government officials, not for war crimes but for contempt.
Finally, there is the possibility that these hearings would so exacerbate partisanship that nothing would get done in Congress despite the fact that the Administration chose not to bring any criminal prosecutions at all.
Despite all of these obstacles, Congressional investigations and/or a truth commission into interrogation and detention practices is a far more likely response to the criminal behavior of members of the present Administration than a prosecution for war crimes within the United States.
Yeah, the plot thickens.
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