“The AG began by saying that Dr. Rice was not interested in discussing details and that her 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. Pat and I urged the AG in the strongest possible terms to drive a full policy discussion of all techniques.” – James Comey to Chuck Rosenberg, May 31, 2005 memo

and that

Soon after, in the late spring of 2005, Gonzales attended a Principals Committee meeting on the topic of detention policy. Comey prepped Gonzales for the debate, arming him with all kinds of arguments against torture and cruelty as U.S. policy. But Gonzales returned from the meeting dejected and defeated. He told the subordinante that not a single cabinet member in attendance had any second thoughts about the CIA’s secret program. Cheney was adamant about it. Gonzales claimed that Rice, too, took a surprisingly hardline (although others disputed this assertion). Her position, according to the Attorney General, was that if the Justice Department said these harsh practices were legal, and the CIA said they worked, she was on board. The question of whether it was smart, and right, and in the interests of America’s long-term foreign-policy goals, Gonzales suggested was not deemed worth talking about by fellow memors of the Bush cabinet. Gonzales went along.” – Jane Mayer, The Dark Side, p. 311

Dunno, it caught my eye. If Comey’s memo was secret till just now, did Rice have that phrase printed on her business cards for common use? I wonder who the “others” were who disputed the assertion? Does this help in figuring out who leaked the memos to the NYT?

Maybe newpapers should die, for two reasons:

1) Trees, like humans, are living beings, and neither should be fed into a chipper-shredder.

2) That debatable sin (the ol’ “do trees feel pain” argument)is dwarfed by the horrific and fairly common practice of spitting on the sacrifice of the trees by filling papers with drivel, propaganda, slander, hogwash, and advertising (which is a combination of the preceeding four). This is made SO apparent by the NYT/EW contrast.

Hooray for emptywheel, firedoglake, grittv, the Nation (see, there’s a good use for a tree!), etc… I don’t understand what they mean when they say alternative media… I don’t see any other media around, just mouthpieces. Thanks for the great work, emptywheel and all posters. You make me feel, well you know, different… I mean, I more than like you, I like like you.. Hell, I LOVE guys!

I suggest setting up Google Reader if you’re a Gmail user, or another reader like Bloglines if you use a different email service, and then adding the “feed” from each of your desired blogs into that reader. It makes scanning for new content very fast, can choose to skip posts you don’t want to read, or collect only emptywheel’s content versus Oxdown content, for example.

To find the RSS/XML feed, see the little orange button at the very bottom of this page. Right-click on it and copy link, then paste into your reader of choice.

My last gig required me to audit all state newspapers and dozens of blogs each day, saved me tons of time to use a reader, and I never had to worry about missing any posts.

Short-term I’ll hazard a guess there’s going to be a blizzard of posts once the OPR report is published — which means NOW is an optimum time for busy regular visitors to get readers set up to stay abreast of developments.

For those of you with mobile devices, you might try a service called “Feed My Inbox“, which will send you each post as they are added to the site. There’s a little lag time between each post’s publication and the email you’ll receive — my estimate is about one hour or less — but for folks who are traveling and don’t have access to a computer, this may be just perfect. I use it on an email-only device on which I can receive messages too long for cellphone text and away from other wireless service. Give it a whirl and see what you think; the only downside is that you won’t get comments nor active links as it’s text-only service. But you will be up to date with EW’s posts!

IMO, if he’d sent out a preservation notice and moved to correct the record – we might be in a very different posture on torture here. But that’s spec on the what would have happened. What isn’t spec is that he didn’t correct the record with what he did know about and he didn’t send out preservatino notices while he was on his way out the door.

Fair enough. I’ve simply never seen where the opportunity was there–hell, even Olson, who supposedly quit when he found out he’d been misled on content, didn’t correct the record on HIS way out the door, did he?

The reason I raised the 9/11 stuff is that’s the closest he came to being involved in not turning over the videos, timewise and knowledge-wise. What I don’t see, in terms of when he had real knowledge in any of these cases and a real moment and person to send out a preservation notice to.

He came to DOJ after the criminal referrals during the CIA IG report (one was lingering, but it was DOD related). Some of the key discussions (9/11 COmmission, Taguba) took place at Gonzales’ level. We have Muller meeting with “senior DOJ officials” on the IG report in May 2004, which is a fair point to assume knowledge of the scope of the torture. The discussions about the tapes appear to have heated up sometime in summer, 2005 (though it’s not clear when). And Comey was not overseeing any of the big evidence requests before he left. So for him to have done as you say, he’d have had to review earlier cases to know what the requests were (Moussaoui is the case he should have been aware of, but again, the representations made by DOJ happened before and after he was DAG).

SO while I agree that a perfect person, if and when he had solid knowledge of the tapes, would have sent out a preservation notice, I simply don’t see the moment when that would logically happen save perhaps just as he was out the door, when Negroponte told Goss to keep the tapes (though Negropone was much more in the loop, I imagine, than Comey). All I’m saying is even with Padilla–in which he should have taken an active role–the case was not at a point where the evidence was actively in question.

Let’s start, for example, with your reference to the IG report. What evidence do you have that Comey has read it?

None – the evidence is that he saw drafts and finals of the May 10 memo and all its references to things in the IG report. I also don’t buy that he and Goldsmith, who was reportedly shocked, never discussed any of it, but still – the references in the May 10 memo to the IG report info are things I think he did know about.

If he doesn’t know about the number of videos or who they showed (and his comment suggests he doesn’t), then it’s not clear he has read it.

Ok – I don’t think I said he did. I mentioned the video reference in his email in large part bc I think the NYT ignored the impact of Comey telling Gonzales that he’d heard about a video and it would be a problem for them and later the video disappears but also vis a vis Comey not to clam that he knew about all the videos, but that based on his having heard about the existence of the video he described to Gonzlaes, he was required by professional ethics to figure out what was being done with that on the evidentiary front with so many courts (including the Padilla case that he had been directly involved with and where abuse of sources was specifically framed to the court) with respect to preserving that info.

It’s not clear that he had any idea of what was there to preserve.

Doesn’t matter – you usually don’t know everything you client has to preserve. That’s why we have these long lovely references to “all documents, digitized information, copies, originals, voice recordings, yada yada yada” language that we include in preservation notices

He wasn’t involved in the non-response to the 9/11 Commission on the interrogations.

Huh? Where did I mention the 9/11 Commission?

Or do you have evidence that for Jim Comey and only Jim Comey the careful compartmentalization that Addington effected somehow completely eroded?

I don’t even know what you mean by that? What I had ‘evidence of’ is what is being discussed here – the actual emails where Comey himself says he had heard about (not seen) a video of early interrogation. Once he had that information, he had duties that relate to it. I don’t claim that he knew all about every aspect of the torture program. I’m saying he knew that people were talking about a video bc he mentions it himself. I’m saying he knew about the May 10 memos bc he says so. And knowing about all the techniques listed in those memos (combined or not) he knows the lack of veracity by Clement to the Sup Ct and did nothing.

I don’t see why you keep going off on so many things that I’m NOT saying to try to make me out to be a big meanie about Comey. I never said he was read in the torture program or was invovled in something with the 9/11 commission that seems to be on your mind. I’d agree to disagree on opinions, but it’s false to clami that whether or not he knew somehting about a video is my opinion when he says it in his email. It’s also false to claim that this somehow is me saying that Addington’s compartmentalization failed but only with Comey. I didn’t say anything like that – but I did say Comey had professional responsiblities when he knew that there might be some kind of video evidence. He did and you instead of responding to that, you go off on Addington and the 9′11 commission and I have to say I don’t understand why. ?

But in your long comment, you make a lot of assumptions about evidence he had that you have no evidence for.

What?

I will say that I think you are glossing over what he did have access to, or said that he did in other settings apart from the emails though.

When he filed the Arar affidavit, he did it as Acing AG and under penalty of perjury said he’d made sufficient inquiry into the factual basis of his assertions. When he conducted the Padilla presser his prologue is about how the review he is providing invovled and making factual assertions about involved review of all kinds of classified info and cooperation between all kinds of departments and I think the way he handled the Geneva Conventions questions is pretty indicative of him having the Theissen report.

Even in this case, it is clear he does not know what was done to (probably) Ghul, that he would have to do some factual investigation to get there.

Right – and I say that he is wanting to get the facts to make that a fact specific case. What you aren’t acknowledging, though, is that he is saying that he knows enough about the case to know that there were oral authorizations given for what was done and he makes that as the argument for why they can issue an after the fact clean up memo. As a matter of fact, I never say that he knows what was done, but I do say that he wants to a) limit the memo to a fact specific reliance memo and b) that he says he knows that the particular case invovled oral authorization (IMO, those should be the bigger inquiry point). So why you keep responding to the specific things I say with “OMG, you are wrong wrong wrong bc there is no evidence he was read into the torture program” just confuses me.

Further, I really wonder what you think would get these people to work effectively. You say this is all CYA stuff–but it is using exactly the method that Mora did to get Rummy to back off the torture techniques: the threat of publicity. I don’t see why you think it would have been effective to go argue with Cheney or Gonzales on the merits. Threatening reputational harm and exposure was what had worked with Mora

Actually, nothing worked with Mora, they went around him.

But when you say you wonder what I think – you don’t have to wonder, I’ve said it. Comey should have sent preservation notices. Comey should have said that he was going to correct the Sup Ct record made by Clement. Comey should have actually issued – signed out – a memo objecting. Do I think that would have been “effective?” I don’t know and I don’t think I said it would have. What I’ve said is that those things that an ethical lawyer would do. As a matter of fact, I’m the one who keeps saying that neither Comey nor Zelikow’s opinions, whether expressed in a memo or a private email or conversation, had effect as a matter of law. Neither are at OLC or in the chain of command for OLC. But they do matter from a reasonable reliance standpoint, even for a fact specific memo, and more importantly some of them, like preservation notices and correcting the record, are duties of candor to the tribunal that exist whether they are “effective” or not.

Yet for you, the same tactics used by Mora, used by Jim Comey, somehow amount to support for torture.

No – Comey did not sign out a memo objecting to torture and Mora didn’t concur in torture memos. That can’t be as hard for you to see as you are making out.

What you call Comey’s CYA tactics may be the one thing that allows us to hold Bradbury accountable for his role, and with it, Cheney and Addington.

Well, when part of that email record is going along with the first May memo, I think it really makes it very blurry as to how you hold Bradbury accountable. In any event, I guess there are two distinct sets of CYA tactics and I have have two different reactions to them. The first “CYA” is Comey papering the file with self serving ‘as you know’ emails. I have no problem with that, do it all the time myself with people and my problem isn’t that he papered the file, but that I don’t think he papered it enough and should have done what Mora did with a memo. Which would also not leave much to the imagination and argument about what he does or doesn’t think is the legal analysis.

The other “CYA” is the tactic of using the OLC to provide cover for torturers. I do have a big problem with that and to the extent he concurred with it, even if only to the extent of one out of three memos, that bothers me a lot and I read the emails on the second memo to be saying that he wants to use DOJ to also insulate the people involved in the other other interrogation that proceeded from oral authorizations. You read it as saying that he wanted to do the fact investigation and he might at that point have concluded someone should be prosecuted. That’s a valid “agree to disagree” place bc I think he was on board with the basic plan of insulating the past torture from prosecution and you think that’s bull and I guess we are both operating on opinion there.

Well, ok, I thought we were at agree to disagree here, then you said:

I agree with you absolutely on one point. Comey did not then push to hold those who DID the torture accountable–the contractors and interrogators. That’s a problem. Not as big of a problem that has him helping Bush to avoid accountability on wiretapping, but still a problem. And I agree that was what his concurrence for the Techniques memo was about and may have been what his attempts to fix the Combination memo was about–to help those who had received okay already avoid prosecution for what had been okayed (and in this he is like Mukasey–no big surprise there). But my whole point on context has to do with whether or not he was trying to find a way to prevent this going forward.

I pretty much laid that out, and that IMO he was having a lot of heart to hearts that he didn’t want to put in writing about criminal consequences for the AG’s office for future acts that might be taken with those opinions out there, so I’m really confused now about the argument.

Your point was that you think he was trying to keep DOJ from authorizing future tortuer. I said pretty much the same thing when I explained the issue of revising the second memo. My point is that his concurrence in the first memo means he is ok with that memo and the only way you are ok with that memo is you are protorture OR (my more charitable take) pro-protecting CIA torturers when the DOJ was directly invovled in their torture program.

If you want to argue that he was trying to “fix” the memos so that future torture wouldn’t walk back to DOJ, I don’t see where we disagree or where I said anything that would be disagreeable to that point.

My points were about how often he has before, and seemingly is willing to here, walked away from enforcing criminal law against people in the Admin who violated that law and how he flouted professional ethics.

IMO, if he’d sent out a preservation notice and moved to correct the record – we might be in a very different posture on torture here. But that’s spec on the what would have happened. What isn’t spec is that he didn’t correct the record with what he did know about and he didn’t send out preservatino notices while he was on his way out the door.