Mixing haughty disdain with semantic quibbling, two key legal architects behind George W. Bush’s “war on terror” tactics brushed aside congressional questions about how the administration fashioned its harsh interrogation policies that human rights experts say crossed the line into torture.
Former Justice Department lawyer John Yoo and Vice President Dick Cheney’s chief of staff David Addington also downplayed their roles in formulating the theories of presidential power that gave Bush wide latitude to order that detainees be subjected to painful treatment to break them down.
Yoo, who is now a law professor at the University of California at Berkeley, insisted that he only drafted the legal memos – from his post as a deputy in the Justice Department’s powerful Office of Legal Counsel – and that other officials decided what interrogation techniques were permissible.
“Decisions about interrogation methods at Guantanamo Bay were made by the Defense Department,” said Yoo in Thursday’s testimony before the House Judiciary subcommittee on the Constitution.
But Yoo appears to have been splitting hairs. While it may be true that higher-ups in the Bush administration, including President Bush, had greater responsibility for approving the techniques, Yoo was not just the detached legal scholar that he portrayed at the hearing.
In his 2006 book, War by Other Means: An Insider’s Account on the War On Terror, he described his participation in meetings that helped develop the controversial policies for the treatment of detainees.
For instance, Yoo wrote about a trip he took to Guantanamo Bay, Cuba, with other senior administration officials to observe interrogations and to join in discussions about specific interrogation methods.
At Thursday’s hearing, Addington, who was Vice President Cheney’s legal counsel at the time of the administration’s internal torture debate, also disputed some of the press reports that depicted him as the mastermind behind Bush’s imperial presidency.
Yet, while Yoo relied on semantics and assertions of executive privilege to duck many congressional questions, Addington responded with bluster and contempt toward many of his Democratic inquisitors.
Addington, who is often called “Cheney’s Cheney” for his bullying style, displayed his displeasure at being subpoenaed. He submitted no prepared testimony and made no opening comment beyond correcting introductory comments by Rep. Jerrold Nadler, D-New York, the panel’s chairman.
“Is that the entirety of your statement?” Nadler asked.
“Yes, thank you,” Addington said. “I’m ready to answer your questions.”
But that wasn’t entirely true, either. Throughout the hearing, Addington did more fencing with the committee Democrats than sharing meaningful information about how the presidential policies on interrogations were devised.
Rep. John Conyers, D-Michigan, the courtly House Judiciary Committee chairman, asked about the “unitary executive theory,” a key tenet of right-wing legal reasoning for granting the President extraordinary powers. Though Addington has long been a chief advocate of this concept, he quibbled over the words.
“I frankly don’t know what you mean by unitary theory,” Addington said.
“Have you ever heard of that theory before?” Conyers asked.
“I see it in the newspapers all the time,” Addington replied.
“Do you support it?”
“I don’t know what it is.”
In disbelief and with his voice rising, Conyers asked, “You’re telling me you don’t know what the unitary theory means?”
“I don’t know what you mean by it,” Addington answered.
“Do you know what you mean by it?”
“I know exactly what I mean by it,” Addington said, and then cited constitutional language that he said grants the President the “unitary” – or total – executive authority of the U.S. government.
Often as Democrats were asking questions, Addington would slouch in his chair, rub his beard or write notes to himself as if he wasn’t paying attention.
When asked why the administration developed its own legal definition of torture rather than consult with members of Congress who had enacted anti-torture statutes, Addington called the idea “irrelevant” – much like his boss Cheney once reacted to a question about an opinion poll showing popular opposition to the Iraq War with a blunt, “So?”
At one point, Rep. Debbie Wasserman Schultz, D-Florida, expressed disbelief about Addington’s assertion that he couldn’t remember discussions about methods of interrogation. “Is there a question pending, ma’am?” Addington responded petulantly.
Yoo presented a sharply different persona, offering a pained expression whenever he insisted that he wanted to cooperate but was constrained by the Justice Department’s demand that he not divulge details about the formulation of the interrogation policies.
But Yoo also played word games with the Democrats, much as Addington did.
When Rep. Keith Ellison, D-Minnesota, asked a question about whether Yoo’s memo on torture was “implemented,” Yoo retreated to a muddled academic discussion of what “implemented” meant.
“What do you mean by ‘implemented’?” Yoo asked.
An astonished Ellison responded, “Are you denying knowledge of what the word ‘implement’ means?”
“You’re asking me to define what you mean by the word?”
“No, I’m asking you to define what you mean by the word ‘implement,'” Ellison said, exasperation in his voice.
Based on the generalities of many questions directed at Yoo, it also appeared that Democratic committee members were unfamiliar with the contents of Yoo’s book, in which he discusses in far greater detail how he formed legal opinions on torture, his reasons for recommending that the White House ignore the Geneva Conventions, and warrantless wiretaps.
Yoo was the author of an August 2002 legal opinion widely referred to as the
“torture memo” that gave CIA interrogators legal cover to implement brutal methods during the interrogations of suspected terrorists. He also drafted a second, similar opinion for military interrogators in March 2003.
Yoo’s book offers some clues behind the genesis of the August 2002 torture memo.
He wrote that in December 2001 “senior lawyers from the Attorney General’s office, the White House counsel’s office, the Department’s of State and Defense, and the [National Security Council] met to discuss the work on our opinion” regarding whether the Geneva Convention applied to members of al-Qaeda and the Taliban.
Yoo wrote that he, too, participated in the meetings.
“This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism,” Yoo wrote. “Meetings were usually chaired by [White House counsel] Alberto Gonzales…his deputy, Timothy Flanigan, usually played the role of inquisitor, pressing different agencies to explain their legal reasoning to justify their policy recommendations.”
Yoo wrote that the Defense Department was represented by its general counsel William “Jim” Haynes, the State Department by legal adviser William House Taft IV, and the NSC by John Bellinger, that agency’s legal adviser.
The meetings that Yoo described appear similar to those disclosed by ABC News last April.
“The most senior Bush administration officials repeatedly discussed and approved specific details of exactly how high-value al-Qaeda suspects would be interrogated by the CIA,” ABC News reported, citing unnamed sources.
“The high-level discussions about these ‘enhanced interrogation techniques’ were so detailed, these sources said, some of the interrogation sessions were almost choreographed – down to the number of times CIA agents could use a specific tactic.
“These 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, sources told ABC News.”
Resistance on Torture
Yoo wrote that the Justice Department’s Office of Legal Counsel (OLC) often clashed with the State Department over international laws banning torture.
“In our arguments, State would authoritatively pronounce what the international law was,” Yoo wrote. “OLC usually responded ‘Why?’-as in why do you believe that, why should we follow Europe’s view of international law, why should we not fall back on our traditions and historical state practices?”
Yoo wrote that the policies he and other senior administration officials recommended, that al-Qaeda and the Taliban were not entitled to the protections of the Geneva Convention, also rankled military lawyers.
“Judge Advocates General [JAG’s] worried that if the United States did not follow the Geneva Conventions, our enemies might take it as justification to abuse American POW’s in the future,” Yoo wrote. “From what I saw the military had a fair opportunity to make it’s views known. Representatives from the Joint Chiefs of Staff, including uniformed lawyers, were present at important meetings on the Geneva question and fully aired their arguments.”
The consensus among the officials who participated in the December 2001 meetings formed the basis of a legal memo sent to Gonzales that advised the White House that al-Qaeda and Taliban prisoners were not entitled to the protections of prisoner of war status or the Geneva Convention.
President Bush accepted that legal opinion verbally on Jan. 18, 2002.
“The only way to prevent future September 11s will be by acquiring intelligence,” Yoo wrote. “The main way of doing that is by interrogating captured al-Qaeda leaders or breaking into their communications…. In an opinion eventually issued on Jan. 22, 2002, OLC concluded that al-Qaeda could not claim the benefits of the Geneva Conventions.”
Yoo also wrote that in January 2002 he and the other administration officials who participated in the December 2001 meetings took a trip to Guantanamo Bay to observe the interrogations of several detainees
The trip took place seven months before he drafted the first of two legal opinions that were later withdrawn.
“A gust of warm, humid air embraced us as we disembarked at the U.S. Naval Base at Guantanamo Bay,” Yoo wrote in his book. “I was the junior person on the flight among the senior lawyers there from the White House, Departments of Defense, State and Justice.
“The group of us who landed that day had no idea that the ‘front’ in the war on terrorism would soon move from the battlefields of Afghanistan to the cells of Gitmo.”
In the context of explaining why the prisoners were not entitled to the benefits of the Geneva Convention or prisoner of war status, Yoo wrote:
“When our group of lawyers visited Gitmo, the Marine general in charge told us that several of the detainees had arrived screaming that they wanted to kill guards and other Americans. …
“Many at Gitmo are not in a state of calm surrender. Open barracks for most are utterly impossible; some al-Qaeda detainees want to kill not only guards, but their peers who might be cooperating with the United States. The provision of ordinary POW rights…is infeasible.”
Yoo’s argument that only quiet POWs “in a state of calm surrender” should qualify for Geneva protections might be news to many former U.S. POWs, including Sen. John McCain, who have boasted about their various forms of resistance to their captors.
Yoo added that a few weeks after he returned from Guantanamo “the lawyers met again in the White House Situation Room to finally resolve the issue for presidential decision.”
“If Geneva Convention rules were applied, some believed they would interfere with our ability to apprehend or interrogate al-Qaeda leaders,” Yoo wrote. “We would be able to ask Osama bin Laden loud questions and nothing more. Geneva rules were designed for mass armies, not conspirators, terrorists or spies.”
However, consensus eluded the group, according to Yoo.
“Gonzales had the unenviable task of summarizing the different positions for President Bush and attempting to forge a consensus,” Yoo wrote. “[Gonzales recommended that the President find that neither al-Qaeda nor the Taliban were covered by Geneva.”
However, Secretary of State Colin Powell urged President Bush to reconsider, according to Yoo.
On Feb. 7, 2002, President Bush sent a memo to Cheney, Powell, National Security Adviser Condoleezza Rice, Chief of Staff Andrew Card, Defense Secretary Donald Rumsfeld, CIA Director George Tenet, Attorney General John Ashcroft, General Richard Myers of the Joint Chiefs of Staff, which said, “the Geneva Conventions only applied to conflicts involving states fighting with regular armed forces,” according to Yoo’s book.
Yoo wrote that Bush believed that “the war on terrorism ushered in a new paradigm, one in which groups with broad, international reach commit horrific crimes against innocent civilians, sometimes with the direct support of states. [Bush] accepted that he could suspend the Conventions with regard to Afghanistan, but decided not to.
“Instead, he found that the Taliban were ‘unlawful combatants’ [and] also found that Common Article 3 applied only to an ‘armed conflict not of an international character,’ and hence neither to the war with al-Qaeda nor the Taliban.”
However, little of this history found its way into the congressional hearings. Between the bluster and the legalisms, Addington and Yoo managed to fend off most of the questioning.
"[DNC Chair Tom Perez] has gotten instructions from Bill Clinton not to let the party go to the Bernie Sanders folks." - Jonathan Allen, co-author of Shattered, revealing new material in the upcoming paperback release pic.twitter.com/dLEnwl7kIc— HootHootBerns 🌹🐦 (@HootHootBerns) May 3, 2018