A front page article in the New York Times goes out of its way to insult the intelligence of Times readers. The story reports on newly leaked emails (read them here) by former Justice Department lawyer James Comey that shed light on the origins of the 2005 torture memos signed by Stephen Bradbury of he Office of Legal Counsel [OLC]. The Times claims the emails indicate that "U.S. Lawyers Agreed on Legality of Brutal Tactic ." In fact, the emails demonstrate that one of those lawyers had serious concerns about the legality of combining the use of these techniques, as was routinely done in the CIA torture centers.But, in typical Times fashion, they apparently simply reported the story that those leaking the memos desired, without exhibiting a scintilla of critical thought.
But more important is that the Times ignored the most important message of these emails. As Glenn Greenwald discusses, the emails are concrete evidence that the OLC memos were in no sense dispassionate legal analyses designed to determine what was and was not legal. Rather, they were the result of an intense push from the White House for approval of the torture techniques:
But the real story here is obvious -- these DOJ memos authorizing torture were anything but the by-product of independent, good faith legal analysis. Instead, those memos -- just like the pre-war CIA reports about The Threat of Saddam -- were coerced by White House officials eager for bureaucratic cover for what they had already ordered. This was done precisely so that once this all became public, they could point to those memos and have the political and media establishment excuse what they did ("Oh, they only did what they DOJ told them was legal"'/"Oh, they were only reacting to CIA warnings about Saddam's weapons"). These DOJ memos, like the CIA reports, were all engineered by the White House to give cover to what they wanted to do; they were not the precipitating events that led to and justified those decisions. That is the critical point proven by the Comey emails, and it is completely obscured by the NYT article, which instead trumpets the opposite point ("Unanimity at DOJ that these tactics were legal") because that's the story their leaking sources wanted them to promote.
As Marcy Wheeler points out, this approval was desperately needed in order to give retrospective approval for torture already conducted. For the very same memos document the retrospective nature of the analysis, however concealed it was in the memos themselves:
[Alberto Gonzales's Chief of Staff Ted Ullyot] mentioned at one point that OLC didn't feel like it could accede to my request to make the opinion focused on one person because they don't give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.
In any case, the message of the Times story, and of these emails, is that the list of Bush administration lawyers who provided cover for the torture regime larger than is usually assumed. It should include Jack Goldsmith, Daniel Levin, and James Comey as well. For each of them signed on, however reluctantly, to legal justifications for the torture being conducted by the administration. They quibbled over the details -- and Comey at least, had serious concerns about the appropriateness of the techniques from a human and policy perspective -- but each of them ultimately went along with the program. Unlike Alberto Mora, the Navy General Counsel who forced, however temporarily, Defense Secretary rumsfeld to rescind approval of Guantanamo torture techniques, for example, there are no heros among this Justice Department bunch.
Getting back to the Times, it is in deserate financial straights, with its long-term survival considered in doubt. I contribute to its survival by keeping my subscription to its weeked editions. At times I consider the potential loss of the Times a disaster, as it will likekly reduce the availability of quality investigative journalism. But when I read articles like today's, or the one relaying the recent Pentagon scam about released Guantanamo detainees "returning to the fight," I wonder why I waste my money. When I remeber the scandalous efforts of the Times to peddle nonsense in support of the Iraq war, my doubts increase. Will the country really be in worse shape if we have one less venue for the powerful to create "consensus" based on obvious fabrications? I'm not so sure. If our press refuses to talk truth to power, is its survival important?