If the United States had a functioning criminal justice system for the powerful not just for run-of-the-mill offenders former Vice President Dick Cheney would have convicted himself and some of his Bush administration colleagues with his comments on ABC's "This Week."
On Sunday, Cheney pronounced himself "a big supporter of waterboarding," a near-drowning technique that has been regarded as torture back to the Spanish Inquisition and that has long been treated by U.S. authorities as a serious war crime, such as when Japanese commanders were prosecuted for using it on American prisoners during World War II.
Cheney was unrepentant about his support for the technique. He answered with an emphatic "yes" when asked if he had opposed the Bush administration's decision to suspend the use of waterboarding after it was employed against three "high-value detainees" sometimes in repetitive sequences. He added that waterboarding should still be "on the table" today.
Cheney then went further. Speaking with a sense of impunity, he casually negated a key line of defense that senior Bush officials had hidden behind for years that the brutal interrogations were approved by independent Justice Department legal experts who thus gave the administration a legitimate reason to believe the actions were within the law.
However, on Sunday, Cheney acknowledged that the White House had told the Justice Department lawyers what legal opinions to render. In other words, the opinions amounted to ordered-up lawyering to permit the administration to do whatever it wanted.
In responding to a question about why he had so aggressively attacked President Barack Obama's counter-terrorism policies, Cheney explained that he had been concerned about the new administration prosecuting some CIA operatives who had handled the interrogations and "disbarring lawyers with the Justice Department who had helped us put those policies together. "
"I thought it was important for some senior person in the administration to stand up and defend those people who'd done what we asked them to do."
Cheney's comment about the Justice lawyers who had "done what we asked them to do" was an apparent reference to John Yoo and his boss, Jay Bybee, at the Office of Legal Council (OLC), a powerful agency that advises the President on the limits of his power.
In 2002, Yoo while working closely with White House officials drafted legal memos that permitted waterboarding and other brutal techniques by narrowly defining torture. He also authored legal opinions that asserted virtual dictatorial powers for a President during war, even one as vaguely defined as the "war on terror." Yoo's key memos were then signed by Bybee.
In 2003, after Yoo left to be a law professor at the University of California at Berkeley and Bybee was elevated to a federal appeals court judgeship in San Francisco, their successors withdrew the memos because of the sloppy scholarship. However, in 2005, President George W. Bush appointed a new acting chief of the OLC, Steven Bradbury, who restored many of the Yoo-Bybee opinions.
Legal Fig Leaf
In the years that followed, Bush administration officials repeatedly cited the Yoo-Bybee-Bradbury legal guidance when insisting that the "enhanced interrogation" of "war on terror" detainees as well as prisoners from the Iraq and Afghan wars did not cross the line into torture.
In essence, the Bush-Cheney defense was that the OLC lawyers offered honest opinions and that everyone from the President and Vice President, who approved use of the interrogation techniques, down to the CIA interrogators, who conducted the torture, operated in good faith.
If, however, that narrative proved to be false if the lawyers had colluded with the policymakers to create legal excuses for criminal acts then the Bush-Cheney defense would collapse. Rather than diligent lawyers providing professional advice, the picture would be of Mob consiglieres counseling crime bosses how to evade the law.
Though Bush administration defenders have long denied that the legal opinions were cooked, the evidence has long supported the conspiratorial interpretation. For instance, in his 2006 book War by Other Means, Yoo himself described his involvement in frequent White House meetings regarding what "other means" should receive a legal stamp of approval. Yoo wrote:
"As the White House held its procession of Christmas parties and receptions in December 2001, senior lawyers from the Attorney General's office, the White House counsel's office, the Departments of State and Defense and the NSC [National Security Council] met a few floors away to discuss the work on our opinion. "