Bush okayed torture to outwit defense lawyers

By Stephen C. Webster

It comes as no surprise that the Bush administration had little love for lawyers. Long before the “Attorneygate” scandal developed around the firing of nine US Attorneys in his second term, former President George W. Bush spent a good amount of the time bashing trial lawyers whenever he had the opportunity.

And it was just recently revealed that Bush appointee Bradley Schlozman, who supervised civil rights and voting rights lawyers from 2003 to 2006, thought his charges were little more than a bunch of “mold spores,” “commies” and “crazy libs.”

But now, in a Thursday editorial published by the Wall Street Journal, John Yoo, the former Deputy Assistant Attorney General for the Office of Legal Counsel, explained that the Bush administration’s torture programs, for which he co-authored the legal justifications, were initially designed to outwit crafty defense attorneys.

“The first thing any lawyer will do is tell his clients to shut up,” writes Yoo. “The [Khalid Sheikh Mohammeds] or Abu Zubaydahs of the future will respond to no verbal questioning or trickery — which is precisely why the Bush administration felt compelled to use more coercive measures in the first place.”

Yoo neglects to mention, however, that before the Supreme Court stepped in, terror defendants were using military lawyers. Nor does he mention that that judge advocate generals (JAGs) for the Army, Air Force and Marines later “said they expressed their concerns as the policy was being hashed out at the Pentagon in March and April 2003.”

“Though their letters to the Defense Department’s general counsel are classified, sources familiar with them said the lawyers worried that broadly defined, tough interrogation tactics would not only contravene long-standing military doctrine — leaving too much room for interpretation by interrogators — but also would cause public outrage if the tactics became known,” Josh White wrote for The Washington Post in 2005.

Sen. Lindsey Graham (R-SC), who chaired the 2005 Armed Services subcommittee hearing, told the top military lawyers then, “If they had listened to you from the outset, we wouldn’t have a lot of the problems we’ve dealt with.”

Evidently, the Bush administration never did listen to them.

In his time with the Department of Justice, John Yoo co-authored the Patriot Act and helped craft legal justifications for the Bush administration’s torture programs and the NSA’s full-spectrum spying apparatus.

“Relying on the civilian justice system not only robs us of the most effective intelligence tool to avert future attacks, it provides an opportunity for our enemies to obtain intelligence on us,” continued Yoo. “If terrorists are now to be treated as ordinary criminals, their defense lawyers will insist that the government produce in open court all U.S. intelligence on their client along with the methods used by the CIA and NSA to get it. A defendant’s constitutional right to demand the government’s files often forces prosecutors to offer plea bargains to spies rather than risk disclosure of intelligence secrets.”

In the piece, titled Obama Made a Rash Decision on Gitmo, Yoo also directly states that President Bush ordered waterboarding “three times” after 9/11.

“Mr. Obama is returning America to the failed law enforcement approach to fighting terrorism that prevailed before Sept. 11, 2001,” he opined.

Yoo argues Obama’s order banning torture “amounts to requiring — on penalty of prosecution — that CIA interrogators be polite,” and even parrots a Rove talking point: the claim that Obama’s ban of torture somehow “prohibits” good-cop, bad-cop interrogation routines with prisoners.

“The Army Field Manual, for example, prohibits you from using good cop-bad cop in interrogating,” Rove said on Fox News’ Hannity on Monday.

“The CIA must now conduct interrogations according to the rules of the Army Field Manual, which prohibits coercive techniques, threats and promises, and the good-cop bad-cop routines used in police stations throughout America,” writes Yoo Thursday.

Of course, it doesn’t.

“In fact, the Army Field Manual explicitly permits good cop-bad cop interrogations under the name of ‘Mutt and Jeff’ interrogations, which involve two interrogators ‘display[ing] opposing personalities and attitudes toward the source,'” reported Media Matters, on the instance of Rove introducing the manufactured “fact.” “The Field Manual says the ‘goal of this technique is to make the source identify with one of the interrogators and thereby establish[ing] rapport and cooperation.'”

After stating unequivocally that the new interrogation rules will completely cut off any further intelligence from captured al-Qaeda members, he goes so far as to imply that President Obama is “naïve.”

“It is naïve to say, as Mr. Obama did in his inaugural speech, that we can ‘reject as false the choice between our safety and our ideals,'” opines Yoo. “That high-flying rhetoric means that we must give al-Qaeda — a hardened enemy committed to our destruction — the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats.”

His opinion seems to be that suspected terrorists should be given no rights, and the government should not be burdened with needing to provide legitimate evidence against the accused.

“Zacarias Moussaoui, the only member of the 9/11 cell arrested before the attack, turned his trial into a circus by making such demands,” his screed against the American justice system concludes. “He was convicted after four years of pretrial wrangling only because he chose to plead guilty. Expect more of this, but with far more valuable intelligence at stake.”

This, coming from the man who once refused to say whether, under his definition of executive power, the president could order a man buried alive.

Speaking with a reporter, Yoo also agreed with an analysis of executive power which posited the hypothetical situation in which Bush might order a boy’s testicles “crushed” in order to affect a response from his parents.

On the legality of such an order, Yoo said, “I think it depends on why the president thinks he needs to do that.”

“The real reason John Yoo wrote this foolish, inaccurate piece is in the hopes of gathering around him some support for his illegal actions,” writes RAW STORY investigative news editor Larisa Alexandrovna on her blog, at-Largely.

“You may wish to read his latest epic verbiage festival, but I would urge you not to waste your time,” she writes. “The man is a liar, a coward, and now defends his illegal actions by using lies and discredited propaganda to justify the unjustifiable.”

Ron Brynaert contributed to this report.