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DOJ Torture Emails: How The Times Could Have Reported The Story

Over the weekend, the New York Times reported that Justice Department lawyers agreed in 2005 that harsh interrogation techniques were legal. The impact of the story -- which was based largely on email messages written at the time by James Comey, then a high-ranking Justice Department official -- has been, it seems, to bolster the Dick Cheney position in the ongoing torture debate in Washington.

But the Times also, to its credit, released Comey's emails in full, allowing us all to make our own judgments about what they show. And after a close look at the emails, it seems clear that the paper could have used them to write a very different story -- with a very different effect on the public debate.

Here's the story the Times could have written:

WASHINGTON -- Alberto Gonzales told Justice Department lawyers in 2005 that he was under great pressure from Vice President Dick Cheney to complete memos approving the use of harsh interrogation techniques, and that President Bush had also asked about them, according to emails written at the time by a top Justice Department official and obtained by the New York Times.

The emails, written by James Comey, the deputy attorney general, make clear that Comey and other DOJ lawyers raised frequent and strenuous objections to the use of the techniques. They show Comey expressing the view that the White House placed extreme pressure on the department to approve the techniques without taking the time needed for a full consideration of the issues raised, and show him lamenting that department officials -- including, it appears, Gonzales -- had caved to that pressure. And they also suggest that Condoleezza Rice, the secretary of state, tried to short-circuit a discussion among senior administration officials, sought by DOJ, about the wisdom of employing the harsh techniques.

Comey's emails, written in April and May 2005 to his chief of staff, Chuck Rosenberg, suggest that Comey strongly objected to a DOJ opinion stating that the "combined effects" of using the various techniques did not amount to torture. Comey wrote that at a meeting with Gonzales and Steven Bradbury, then a lawyer at the Office of Legal Counsel, he had expressed "grave reservations" about the opinions, and later that he had told Gonzales that "some of this stuff is simply awful."

Comey appealed to Gonzales to take a hard line by invoking the judgment of history. "In stark terms," he wrote of a meeting with the AG, "I explained to him what this would look like some day, and what it would mean for the President and the government....I told him that it would all come out some day and be presented as I was presenting it."

Comey's emails also paint a picture of a Department of Justice under extreme pressure from the White House to approve the techniques. In response to Comey expressing his reservations about the opinion, according to one of Comey's emails, Gonzales said that he had been under pressure from Cheney to complete the memos, with the vice president telling Gonzales "we are getting killed on the Hill." Gonzales also said the president had asked about them.

The White House pressure didn't stop there, apparently. Comey also wrote that a deputy, Patrick Philbin, had told him that Bradbury had received "similar pressure" from David Addington, and Harriet Miers, the top lawyers to Cheney and Bush respectively. Comey worried that having Bradbury serving as acting head of OLC, but wanting the position permanently, left him "susceptible to just this kind of pressure."

The emails also portray Gonzales, the attorney general, as unwilling or unable to stand up to such pressure even when warned by deputies that not doing so would put the department's reputation at risk.

Comey wrote that, after his initial concerns about the issue of "combined effects" were not adequately addressed, he sought out a private meeting with Gonzales, where he told the attorney general that signing off on that opinion "would come back to haunt him and the department," and asked him directly to stop it. Gonzales agreed, saying he would pass on the concerns to Miers, and asked Comey to alter the opinion to address Gonzales' and Comey's concerns.

But after meeting with the White House, according to Comey, Gonzales gave word that the changes needed to be completed in two days. Comey and Philbin objected that this wasn't nearly long enough to conduct the additional fact-finding that was necessary. Referring to a conversation with Gonzales' chief of staff, Ted Ullyot, Comey wrote: "I told him that it could be made right in a week, which was a blink of the eye, and that nobody would understand at a hearing three years from now why we didn't take that week."

But Gonzales stuck to the expedited schedule, leaving Comey to write: "It leaves me feeling sad for the Department and the AG." He added that he hoped that blame for approving the techniques would fall on "those individuals who occupied positions at OLC and OAG and were too weak to stand up for the principles that undergird a great institution."

The episode left Comey nostalgic for the leadership shown by the previous attorney general -- not usually seen as an antagonist of the Bush White House. "People may think it strange to hear me say I miss John Ashcroft," wrote Comey, "but as intimidated as he could be by the WH, when it came to crunch-time, he stood up, even from an intensive care hospital bed. That backbone is gone."

Another of Comey's emails suggests that Rice, the secretary of state, sought to avoid a full high-level discussion of whether the harsh tactics were advisable. Comey writes that, in a sit-down to prep Gonzales for a meeting on the issue with the National Security Council, the attorney general said that Rice's attitude was that "if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for detailed policy discussion."

Later that day, according to the email, Gonzales reported back on the meeting, saying that a full policy discussion had occurred, but that the principals at the meeting nonetheless approved the full list of techniques at issue. Gonzales did not give further details.

Ok, maybe not quite Times style, but you get the idea. The impact of a story like that on the ongoing torture debate would be quite different, one would think.

It's worth noting, of course, that the Times writes that its story is based not just on the Comey emails, but also on "interviews and newly declassified documents."

But, leaving aside (sort of) the issue of the Times' news judgments, it's by no means clear that the key information that's been uncovered acts to vindicate the Bush administration's torture proponents. Indeed, it seems more like the emails cut in the other direction -- by adding to our understanding of the way that the nominally apolitical Justice Department was pressured by the White House to override the concerns of high-ranking officials and approve the use of harsh and shocking techniques.


33 Comments

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Another disgusting spin job pulled on the dolts at the NY Times. Judy Miller is gone but her spirit lives on.

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You're now into writing outright fiction? That's one way to steer a debate!

"U.S. Lawyers Agreed on Legality of Brutal Tactic "

The NYT title does tend to support Cheney on this. And nobody quit over the "brutal tactics" issue, nobody blew the whistle, and nobody in this segment of the soap opera stood up as did Alberto Mora did to Rumsfeld. So the headline is plenty true enough. Comey did resign around this time, but apparently not because of this issue. And the NYT article only has Cheney applying pressure as to getting the memos done, not as to the content of the memo. If you have clear statements to show other Cheney pressure, don't present a fictionalized account, put them out as fact. And Comey apparently only objected to the use of more than one "technique" in a given sesssion AS WRITTEN. He felt the memo could be edited to smooth over the future problems he anticipated.

And the simple fact I've been pointing out over and over again is that what is legally torture is different from what might turn your stomach if you're squeamish. A line has to be drawn between legal and not legal interrogations. One can argue that the line drawn by extant law is too far towards the torture end, but one cannot redraw the line after the fact so as to convict those who didn't cross the old line, and then claim to be a moral country which works by the rule of law.

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Comey did resign around this time, but apparently not because of this issue.

Oh, brother. This is what Comey writes: "It leaves me feeling sad for the Department and the AG. I don't know what more is to be done, given that I have already submitted my resignation."

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MONTHS earlier. He's saying he felt helpless because the timing was such that he ALREADY had one foot out the door.

Sheesh.

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No, he's saying that he would also resign over the torture memos, but that he can only commit harakiri once.

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No, he had plenty of time to do that earlier, and he could of course have refused to offer any support as well as moving up his resignation to "today". In fact he offered only a minor qualification which he thought was fixable.

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You write as though these emails show Comey complaining about deadline pressure, like some procrastinating college student. He's not. It's clear from his words that there is pressure to deliver memos with particular conclusions that would give cover for actions already taken. In the April 25 memo, for instance, Comey writes about being told to call Rizzo at the CIA to "give him some comfort" that the first memo would be done and that there would be add'l work on the second.

It doesn't strike you in the least bit odd--not to mention wrong or illegal--that in spring 2005 the DOJ was under intense pressure to deliver legal memos about actions that had already been taken? Do you actually believe they would have been allowed to provide legal memos that found that the administration had acted illegally?

Your dishonesty is appalling.

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I'm commenting on Zach's preference for writing a fictional NYT article over presenting specific details from the emails in a proper context.

If you want discussion, skip the shit chat.

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Funny, Andy Vance punctures you, and you have no response. You keep pretending that the techniques that were used weren't and aren't torture, and by the definitions that we agreed to in treaty and haven't abrogated, they are. I'm sorry you don't understand logic, but apparently, you don't. The U.S. participated in prosecuting the Japanese for just that war crime, are you now saying that we were mistaken? Then I think that you're an idiot.

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"You keep pretending that the techniques that were used weren't and aren't torture"

No I don't. I keep not assuming stuff your prejudices dictate to you.

Why don't you focus on the topic instead of your illusions about me?

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Eds states: "One can argue that the line drawn by extant law is too far towards the torture end, but one cannot redraw the line after the fact so as to convict those who didn't cross the old line, and then claim to be a moral country which works by the rule of law."

One might plausibly argue that it is inconsistent with the rule of law to punish someone who adhered to the old law for violating a new law that did not go into effect until after the conduct in question. However, the law in effect at the time of the conduct in question, as demonstrated by past prosecutions conducted by the United States and the lack of any change in the law in the interim, made it clear that waterboarding was a violation of both U.S. and international criminal law.

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Anyone who can claim with a straight face that the Bush/Republican power structure did not continually break both the letter and spirit of the law from the day the Republicans on the Supreme Court stopped the vote counting is not facing reality.

EDS arguments can be as tortuous as anything Cheney conceived of to do to 'illegal combatants', or as convoluted as his mollusc avatar.

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I prefer to keep an open mind here. You are free to defend your prejudices.

That some cases of waterboarding, or any conduct, have been ruled to have been torture in some situations does not make all cases torture.

Not all 'harsh interrogation' practices were waterboarding. One must still draw a line or drop the case.

Are you missing the point on purpose??

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Sorry, no, this is illogical. Using waterboarding is torture. None of the Douche bullshit wank-arounds cover the fact that what they were doing in waterboarding is torture. That they chose to write their own definition of torture that was in direct contradiction of what we agreed to, by treaty, is without legal weight. Period. You're spinning on the head of a sophist pin.

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Your spin is your own. I'm sitting here waiting for someone to get with the topical point -- you have to distinguish "harsh interrogation" from "torture" explicitly.

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And the simple fact I've been pointing out over and over again is that what is legally torture is different from what might turn your stomach if you're squeamish. A line has to be drawn between legal and not legal interrogations. One can argue that the line drawn by extant law is too far towards the torture end, but one cannot redraw the line after the fact so as to convict those who didn't cross the old line, and then claim to be a moral country which works by the rule of law.

Another simple fact is that what is legally torture is different from what you might want to be able to do if you're the President, Vice President, head of the CIA, or a CIA interrogator. The "old line" to which you refer is in reality a rather "new line" a line dreamed up and drawn by Yoo, Addington, Bybee, and Cheney, and a line inconsistent with previous US policy (not to mention the rest of the civilized world). The Bush Administration doesn't get to make up its own definition of "torture" which is inconsistent with international law or the United States's obligations under the international conventions to which it is a signatory, such as the Convention Against Torture. One cannot redraw the line, whether before or after the fact, so as to absolve in advance (or after the fact) those who commit what are regarded war crimes under international law, and then claim to be a moral country which works by the rule of law.

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No, I don't refer to Yoo as the old line. The official line is somewhere near "severe pain". "harsh" isn't necessarily "severe". Case closed. You must draw the line in order to convict justly.

I don't get the point of the rest of your comment, it looks like a tangential riff into some other issue.

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And the simple fact I've been pointing out over and over again is that what is legally torture is different from what might turn your stomach if you're squeamish.

Sorry, eds, but the repetition of a contrived "fact" does not make it true, even if it is used only to construct a strawman argument. It only reflects poorly upon the magpie doing the repeating.

Waterboarding is only one "enhanced interrogation technique" that was specifically determined to be torture long before Comey or Gonzalez or Cheney conspired to whitewash the Bush Administration's criminal activities that included - but were not limited to - the waterboarding of prisoners. We had supported the prosecution of others for torture who had committed such crimes in preceding years. We had signed treaties that very specifically defined waterboarding as torture. It is therefore ludicrous to pretend that Cheney and Co. were somehow presented the opportunity to subsequently determine that the actionable offenses such as waterboarding might now be determined to be legally acceptable simply because they were performed "for good cause" by agencies of the United States. Additionally, it is incredibly disingenuous for the media to allow the Cheneys (Dick & Liz) to continue referring to these actions as "enhanced interrogation techniques" given that they had long ago been most clearly defined as torture.

one cannot redraw the line after the fact so as to convict those who didn't cross the old line, and then claim to be a moral country which works by the rule of law.

Likewise, and even more importantly, one cannot redraw the line after the fact so as to exonerate those who crossed the old line, and then claim to be a moral country which works by the rule of law. This is so glaringly apparent as to indict all involved in writing these OLC memos as conspirators attempting to provide some manner of cover for what they surely knew were illegal acts.

And THAT, friend, is an inescapable fact that bears repeating. It is also the basis for criminal charges that should rightly be filed against all the conspirators who were involved in this most despicable enterprise.

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"Sorry, eds, but the repetition of a contrived "fact" does not make it true, even if it is used only to construct a strawman argument. It only reflects poorly upon the magpie doing the repeating."

Your comment is stupid and rude, SJ. You don't even attempt to refute what I allege to be fact, you merely spurn reason and common courtesy, apparently to defend your prejudices without reason, friend. Wise up!

"We had signed treaties that very specifically defined waterboarding as torture."

Not in CAT, the defining international law. Not in the US laws which relate to CAT. If you have a relevant citation, "bring it on"!

I answered other aspects of your comment very recently in re other commenters above.

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Frankly, all the people that were briefed before this were told what the Geneva Conventions contain, and would know that the OLC opinion was crap. Plain and simple. Now, do the people that aren't lawyers get off because a lawyer who's paid to tell them what's legal and what's not get off on this account? More than likely. Do the lawyers that purveyed this horeshit get away with it? Not for any reason that I can see.

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I have no idea how your comment is meant.

"all the people that were briefed before this were told what the Geneva Conventions contain"

Huh?

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There is no rational explanation as to why the Bush administration (or should I be more factual and call it like it was, the Cheney Administration) pushed for this disgusting treatment of POWs that is such a horrible blight on our country's moral reputation. For years in the future, I expect our adversaries in any war to treat our captured military in the same way and if they do, we can thank the Cheney Bush cabal for the mess. God cannot bless our country when we are using such ungodly activities on others. Bush and Cheney forever endangered our future military who fight in any future war. I doubt they lose any sleep about it either which adds to the sadness of this issue. Our military be dammed is their apparent thoughts.

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Well, the problem with that is that the world at large recognizes different rules for different classes of people in detention. Official POWs are different from other kinds of detainees.

The main question here is that of What Counts As Torture under the laws at the time? You can also raise other questions such as, What Should New Laws Look Like?

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I read the Times story and I read Comey's e-mail's. I think the Times was about right. The fact is that there was little pushback from Justice lawyers. One might excuse that by the enormous pressure from Cheney but, still, hardly profiles in courage. We'll get the Senate report soon. Then, hopefully, Cheney's descent into prison will accelerate.

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The DOJ and The Times both come off as craven and uninspiring. It is dispiriting to realize that the "free press" and the Department of Justice are both untrustworthy and willing to be complicit in the most hideous of crimes against human dignity.

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Ignoring the NYT spin on this....by 2005 wasn't Justice becoming increasingly staffed by know- nothing inexperienced right wing graduates of questionable fundamentalist Christian law schools? Imagine you are a dedicated civil service lawyer and the appointed big cheeses in your department are becoming twentysomething inexperienced airheads. You've seen your job as basically working for you know, Justice. Questioning authority, enforcing the Constitution and the words of the Declaration (although you probably have to remind yourself of this every day). Probably after a while you give up and quit and go into private practice or find a state job or maybe if you are really idealistic a lawyer job for the Sierra Club or a public interest law firm or something, teach law, whatever. The overall culture of the Justice department soon changes as people like you are replaced with more of those whose mindset is to acquiescence to the overlords in the Born Again Executive Department. This is how organizations work. Just guessing, based on only casually acquired information about this particular situation. So, no surprise that the DOJ comes off as "craven and uninspiring" and "untrustworthy and willing to be complicit" as Prysmith posted above.
As I was saying to a coworker friend yesterday concerning lack of progress on gay issues by this administration, (not really excusable but...) they do have rather a lot to do, given that in the last eight years pretty much every possible aspect of everything the federal government does has been systematically fucked up over the past eight years in every possible way.

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You're dead on with your last paragraph. You never heard Bush say, "we can't privatize this, or deregulate that, because we have a lot on our plate right now". Bush moved quickly, ruthlessly, and with purpose to change everything around on his neo-con whim. He was wrong in just about 100% of what he did, but at least he did what his voters elected him to do. He didn't sit around making sad faces, and whining about needing more time, more votes, or how bad a situation he was left. He got it done - for the worst - but he did all the things he was supposed to. Except privatize SS, which Obama seems willing to do, in order to "fix" it.

Now that we have a democratic president, house, and senate, you see the fuckheads in charge of the "opposition" party dawdle, and twiddle their fucking thumbs. Nothing but excuses, sad sack, sorry bullshit. "we need 60 votes" "we have to deal with financial crisis 1st" "we have two wars" "we have midterms coming up" "blue dogs" etc.

Democrats never fail to bring a duck hunt nintendo gun to a gunfight. They are playing make-believe that they really care about issues, or that they can actually accomplish anything.

What is the purpose of electing somebody for "change" when they absolutely refuse to work as hard to undo all the damage Bush and as Thomas Frank called them "the Wrecking Crew" did.

The electorate was fooled by a nice-looking slick actor who found a way to be all things to all people. Newsflash: he didn't mean it.

Either the Dems don't care, or don't want to enact the changes that vast majorities of the country want NOW. I think the Dems are really on the same side as the Republicans: the RICH side.

You'll start to realize this once the Fed has given so many trillions to the banks that their balance sheets appear healthy, and absolutely NOTHING is done to prevent the same gamesmanship form brining down the economy again. Obama is leading the effort to solidify Bush's policies:
illegal govt spying
busting unions
endless wars against ideas
financial free-for-all
states secrets
DADT
faithbased inits
media monopolies
the bloated Pentagon budget
killing FOIA
torturing whoever the President wants (Arabs only)
raping the taxpayers all for the benefit of a the superrich
keeping citizens from having healthcare
installing pro-corporate judges

It makes me sad every day to think I donated my time and money to the Dems instead of somebody who would actually lift one fucking finger for the things I care the most about.

I think Obama is either the most gutless coward ever, or a complete liar. Is he serious with this DADT ordeal? C-O-W-A-R-D

As for Harry Reid, Pelosi, and the rest of the invertebrates they are best at writing sternly worded letters that they know will acheive absolutely nothing.

The incumbents sweetest gig is to pretend they care, and pretend they are fighting for their constituents, and to always maintain some feasible excuse for their unbroken string of repeated failures.

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I wonder how the newspaper industry would be faring now if they had questioned the policies of the previous administration. The readership gradually realized that the news media had turned from reporting facts to supporting the party line. The moguls never dreamed that their customers would stop buying the spin, and are now paying the price.

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This doesn't read so much as DoJ agreeing that torture was legal as the few top people at DoJ who were cleared to know about it buckling under and letting the white house have it's way because they didn't really care about enforcing the law.

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I agree. The NYT headline's accurate, but given the overall tone of the emails, a better one might have been 'U.S. Lawyers Too Timid to Reject Legality of Brutal Tactic'.

It shocks me that anyone can make the case that these techniques fall outside the purview of the 1994 anti-torture statue. Even with the statement that defines torture as treatment “specifically intended to inflict severe physical or mental pain or suffering,” isn't that exactly what gives coercive interrogation techniques their coercion: that you will endure physical or mental pain or suffering - increasing in severity - until you accede to the interrogator's wishes?

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Not to me; it sounds like Comey's already on his way out the door, and he's the only one he knows with any spine. That's how it sounds to me. If you knew your boss had been replaced by Bush's "absolutely man" (Ashcroft was his yes man, Gonzales was one step more "yes" than "yes") what would you be able to do?

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Sounds like he is covering is liabilities. 'I told them it was wrong' etc. What has he got to hide? Messages like these are composed for specific reasons.

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EDS is acting like no one is responding to the actual "point" and I don't know if he's an Obama supporter who is simply providing a bit of intellectual parrying to the very upset majority here who think it's pretty clear that making someone truly believe they are about to drown is physically torturous, dangerous and settled as illegal under the Geneva Convention just because he wants us to let Obama dispose of this issue on his own terms, or if he actually agrees with Gonzalez, Yoo and Cheney that their secret, contradictory interpretaion of the law was a good and decent act of governance.

I'll try to summarize what I think he says his point is and then address it. Waterboarding had been determined to be torture in many courts of law. The appropriate highest ranking officials of the US judicial branch appointed by or hired by appointees of the POTUS can, in secret, deem an almost identical activity totally legal, and when the news of their activities to deem it legal by fiat are exposed, they point to the arguments that they purportedly made amongst themselves and short cryptic disclosures to legislators before and after deeming it legal (while all the time obviously wanting to reach the conclusion that something that has clearly been found to be illegal should be made legal) as evidence that they acted "within the law" and Constitution.

It's different than the illegal waterboarding and not torture, simply because the approvers of the practices say we don't want the subjects to actually lose their lives or organ functions. Somehow, two videos of two torture chambers could show the same activity, but one could be deemed virtuous and one wrong and punishable by life in prison, by the simple claim that one of the torturers has nonlethal written procedures / boilerplate and is sanctioned by a currently dominant national government whose citizens have been attacked by terrorists.

Wordy I know but is that it? That's the clear line your talking about that the Bush era waterboard enablers were so clearly on the right side of but somehow the enemies of the US who waterboarded in other eras were on the wrong side of, right?

My answer would be this: since the law you say the legal waterboarderers were acting within provides an impermeable legal defense for them even if the procedures for keeping the activity only used on certain extremely malevolent idividuals, nonlethal and "not torture" fail (like when disappeared humans actually die or do have organ failures or aren't terrorists but maybe guys with snail avatars)how will the people know?

Should we make comparisons and improvement graphs to the illegal torturers of old? Do the five or seven congresspeople that get the POTUS approved secret non written breifings of the activity count as legislative oversight? Who pays for the harsh interrogation tools of the trade, my tax dollars? Does the fact that John McCain made it out alive vidicate his captors from charges of torture? Do 80% need to survive to make it legal, 75%? if the post "harsh treatment" suicide rate is kept to say below 10 times the normal rate is that the right metric?

Oh and by the way, the whole thing is totally secret and it's criminal to release any actual information about what happens to the "harshly interrogated" or whether the information obtained was useful.

EDS, I don't think you believe in government by the people and for the people. The practice you say was legal because Cheney says it was was not- because it violates nearly every core principle of what it means to be an American and the law before and after these priciples were absolutely ignored to deem it secretly legal by the unitary executive and his hand picked judicial branch.

I don't think you are arguing that "anything goes" can secretly be deemed the law of the land are you? When it's legal to make it OK to hurt people to within inches of their lives on purpose, and OK when it turns deadly as long as procedures were followed, and do the whole thing without 99.999% of citizens knowing anything about it, you really are saying anything goes can be made legal. But you'll never own up to that I'm guessing.

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