Legal advice

The explosive story of Rep. Mark Foley (R-FL) and the House pages, including coverup by Speaker Hastert of flagrant predation, has stolen the spotlight from a NYTimes report that would normally have gotten top billing:

Detainee Memo Created Divide in White House

In June 2005, two senior national security officials in the Bush administration came together to propose a sweeping new approach to the growing problems the United States was facing with the detention, interrogation and prosecution of terrorism suspects. [...]

The internal debate over detention issues that began within weeks after the terrorist attacks of Sept. 11, 2001, has come to light before. But interviews show that the struggle, pitting top officials against one another, intensified behind the scenes over the last year as criticism of the administration’s approach grew in the United States and abroad. Crucial elements of that approach were struck down by the Supreme Court on June 29, forcing a resolution of disputes that had gone on for months.

A nine-page memorandum, prepared by Gordon England and Philip Zelikow, urged "a return to the minimum standards of treatment in the Geneva Conventions and for eventually closing the detention center at Guantánamo Bay."

The memo so infuriated Rumsfeld that he reportedly had aides collect copies to have them shredded.

“It was not in step with the secretary of defense or the president,” said one Defense Department official who, like many others, would discuss the internal deliberations only on condition of anonymity. “It was clear that Rumsfeld was very unhappy.”

Note well, it's not only Rummy but also the president who doesn't care for double-plus ungood thoughts. And, no surprise, Cheney headed up the torture faction in the administration.

But even as the White House negotiated with Congress in recent weeks, administration forces led by the vice president’s office reasserted themselves. Officials said Mr. Cheney’s staff and its bureaucratic allies — having agreed reluctantly to the disclosure of the C.I.A. operation and other changes — were closely involved in guiding the talks with Republican senators. Their adversaries in the administration, meanwhile, had to scramble just to keep up with details of the bargaining.

“Basically, they were left to get back whatever they could from Congress,” one senior administration official said of the Cheney group. “And they did.”

We knew there was some disagreement behind the scenes in the administration. What today's Times story provides is corroboration of the salient fact that Bush, Cheney, Rumsfeld -- all of them -- knew they were breaking the law with their detention and torture regime.

They knew this, despite any transparent fig leaves from the fertile legal imaginations of John Yoo, Abu Gonzalez or David Addington. All the muscular assertions that what they were doing was legal, that it wasn't torture, were not "interpretations" or misunderstandings of the facts; they were baldfaced lies.

They also knew their legal liability would become acute once detainees starting showing up in courts. Hence, the ferocity with which they defended the detention and torture regime with elaborate fictions about its legality, efficacy and necessity.

In early August 2005, [...] new rules for the Guantánamo military tribunals were published which did not include changes that many military lawyers had advocated. Officials said David S. Addington, who was then Mr. Cheney’s counsel and is now his chief of staff, was prominent among those who opposed modifications like an explicit ban on evidence obtained by torture, contending that it would wrongly hint that the government had sanctioned torture at all.

England called a meeting in August of Pentagon vice chiefs of staff and senior military and civilian lawyers to pursue a set of detainee guidelines that would adhere to Common Article 3.

According to officials who attended the meeting, several of those present spoke in favor of the Geneva provision, including the senior Army lawyer, Maj. Gen. Thomas J. Romig. In an unusual move, Mr. England called for a show of hands. All but two of those present endorsed the provision. But those two officials were among the most influential in the room: the department’s under secretary for intelligence, Stephen A. Cambone, and its general counsel, William J. Haynes II.

Their concerns, which were later echoed by aides to Mr. Cheney, started with the fact that the president had explicitly rejected the Geneva standard in February 2002.

It's clear that the administration cannot defend itself with the excuse of having received bad legal advice. They refused to take the advice they were given and relied instead on the legal house of cards crafted by the quintessential toadies Yoo and Addington. The February 2002 memorandum is, and always was, the smoking gun pointed right at Bush.

The situation dragged on until the Supreme Court's decision in Hamdan v. Rumsfeld brought matters to a head. Footdragging and coverup would no longer suffice, so every effort was brought to produce legislation that would keep a new secrecy lid on torture.

And last week, they succeeded in eviscerating seven centuries of civilized law by bullying Congress into giving Bush the codified right to suspend the writ of habeas corpus while continuing to engage in torture. If the victims of torture can't get in front of a judge, there is no evidence against the torturers.

The element of the new legislation that raised the sharpest criticism among legal scholars and human rights advocates last week was the scaling back of the habeas corpus right of terrorism suspects to challenge their detention in the federal courts. But in dozens of high-level meetings on detention policy, officials said, that provision was scarcely even discussed.

Ironically, with all the internal debate and scrambling for ways out of the administration's legal dilemma, the idea of attacking the very foundation of our legal system dawned on them late in the game. Or, more probably, they never considered it a matter of great consequence anyway.

If the legal picture is one of government policy fronted by the administration equivalent of 1-800-LAWYERS, the moral picture is even more abject. Nowhere do we read of anyone arguing that these detentions and tortures are wrong in and of themselves. The imperative at all times was to enable the client, George W. Bush, to do whatever he wanted and get away with it.

Who is the greater enemy of American freedoms: Osama bin Laden or George W. Bush?