Re: Is Michael Chertoff Lying? Might He Be A Supreme Court Nominee?

February 8, 2005

Re: Is Michael Chertoff Lying? Might He Be A Supreme Court Nominee?
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.blogspot.com

Dear Colleagues:

Let us give credit to the Senate Democrats when it is due. They started out saying they would vote for Alberto Gonzalez for Attorney General. But after he lied and prevaricated about torture in his appearance before the Judiciary Committee, all eight of the Democrats on the Committee ultimately voted against him, and so did 35 of 41 Democrats who were present for the full Senate vote on his nomination. So the Democrats showed that at least sometimes they are capable of doing the right thing. At least it was the right thing if one believes that a lying torture monger should not be the Attorney General of the United States. Of course, it wasn’t the right thing if one doesn’t care much about this, as the Senate Republicans didn’t, and if one was more interested in doing what the President of one’s party wanted, as the Republicans were.
Having voted against Gonzalez, the Democrats have precluded an argument that otherwise would have been made against their opposition to him should he be nominated for the Supreme Court. Now Bush and company will not be able to say, "You voted for him for the critical post of Attorney General, knowing of his role with regard to torture, so you should not be opposing him now because of that role."

Which brings us to a new case, that of Michael Chertoff, the nominee for Director of Homeland Security, who is sure to be approved by the Senate. Chertoff’s case is a little odd. As shall be discussed here, he appears almost certainly to have participated in the torture mongering and to have approved in certain instances of the horrible torture called waterboarding. He also may have extensively prevaricated or lied outright about this participation in his recent appearance before Congress. On the other hand, he also seems to have opposed certain forms of torture and, aside from torture, to have taken positions on detainees that were at odds with the Bush administration. It also seems to this writer that, for reasons that will be discussed below, he is a possible, perhaps even a likely, Bush Administration stealth candidate for the Supreme Court. This possibility makes it even more important to get to the bottom of his participation regarding torture and of the extent, if any, to which he lied or prevaricated before Congress.

That Chertoff had anything at all to do with torture was unknown publicly until a front page New York Times article of January 29th. That article made points that are listed below, with occasional obvious interpolations by this blogger:
• Unnamed current former administration officials (apparently three senior intelligence officials) disclosed that Chertoff advised the CIA on whether specific forms of coercive interrogation would be crimes under the anti-torture law. This advice was given because of requests from the CIA on several occasions. (The CIA, as long known, was worried that its people might be prosecuted for their actions.) Chertoff advised that waterboarding could be used in certain circumstances. (Waterboarding is, of course, a truly horrible torture.) Somewhat contradictorily, I would say, Chertoff and other DOJ officials seriously objected to other practices as being banned by the law against torture, including death threats against family members and, apparently, threats to the detainee himself of imminent death. The details of the practices remain classified. (There are, we know, a few torture memoranda which have not been released publicly, e.g., the so-called second Bybee memorandum, briefly discussed below.) But Chertoff, though rejecting certain practices like the use of mind altering drugs, nonetheless permitted others and "left the door open to the use of a different set of far harsher techniques."
• According to The Times’ description of what its sources say, Chertoff was thus "directly involved" in discussions "evaluating the legality" of various interrogation techniques, and "advis[ed] the agency whether its employees could go ahead with proposed interrogation methods without fear of prosecution." And "while the criminal division did not explicitly approve any requests by the agency, it did discuss what conditions could protect agency personnel from prosecution." (The meaning of this somewhat contradictory position is a little uncertain. Possibly it means -- as so-called "informal advice" from other government bodies means -- that the agency is not saying whether particular methods are desirable or not, but only whether they will cause perpetrators to be prosecuted.)
• When giving advice, the Criminal Division used the definition of torture contained in the now infamous Bybee memorandum of August 2002. There was a later Bybee memorandum (the so-called "second Bybee memorandum") which discussed specific interrogation practices, but it remains classified. Chertoff was consulted with regard to this later memorandum.
• The CIA went "‘to extraordinary lengths . . . to obtain a clear answer from the Justice Department about which interrogation techniques were permissible and which were not in their questioning of Abu Zubaydah and other important detainees.’" "Nothing that was done was not explicitly authorized,’a former senior intelligence [official] said."
• The White House, in a manner of speaking, denies all. It says Chertoff "did not approve interrogation techniques as head of the criminal division," and had no role in the second Bybee memorandum. (Since all White Houses lie and prevaricate, and this one has joined the Johnson, Nixon and Clinton White Houses as the champion liars and prevaricators since the end of World War II, I regard its denial as being like Sam Goldwyn’s classic description of an oral promise: it’s not worth the paper it’s printed on.)
• When he was still head of the Criminal Division, Chertoff advocated civilian trials before military tribunals. After becoming a judge he advocated debate in order to determine the reasons and the permissible length of time for which enemy combatants can be detained and what if any right they may have to judicial review.

Chertoff’s testimony before Congress on February 2nd had little in common with what was reported in The Times a few days earlier. His answers to the torture mongering came in response to questions by Senators Levin and Lieberman. Lieberman appears, at least in a black and white transcript, to have been most interested not in getting to the truth, but in helping Chertoff. Levin appears to have been interested in the truth, but seems to have lacked the allotted time and the skills to develop the truth.

When he was before the Senate Committee, Chertoff admitted he had had conversations about interrogation techniques with lawyers from outside the Department of Justice. But he refused to say what agency or agencies they were from, claiming that disclosing this might betray a confidence that he must honor. This is pretty strange, since it has now been known for a long time that the CIA sought advice and The Times specifically mentioned the CIA’s request in the article on Chertoff. Nor does Chertoff have any attorney/client privilege since he was acting as a prosecutor talking to potential defendants, nor did he claim the oft fraudulent executive privilege. So the obvious question is, who was he trying to protect, and why, when he refused to say what agencies he had had conversations with? Did he also have discussions with, and was he protecting, the Department of Defense, for example, especially people from Rumsfeld’s office? (Rumsfeld seems to have favored torture, or at least very aggressive methods.) Senators, however, did not press him on who he spoke with, but instead allowed him, without objection, to refuse to disclose the agencies he had spoken with.

With obvious reluctance, Chertoff was forced to concede that specific techniques of interrogation -- which plainly must include specific methods of torture -- were discussed with him. But he declined to say what they were, claiming it is difficult to know what was discussed at the time as opposed to what he has since read about in the press. In other words, this fellow who is bright enough to have been a magna cum laude graduate of Harvard College, a magna cum laude graduate of Harvard Law School, a clerk for Second Circuit Judge Murray Gurfein, and a clerk for Supreme Court Justice William Brennan, wants us to believe that he does not remember whether a shocking technique like waterboarding was discussed with him? Or whether threats of imminent death were discussed with him? Forgive me for thinking that a claim from someone this bright of not knowing whether things like this were discussed with him meets Lars-Erik Nelson’s definition of the enemy. As readers of this blog may remember, Nelson said, "The enemy isn’t liberalism. The enemy isn’t conservatism. The enemy is bullshit."

So once again a question arises of who is Chertoff trying to protect by means of bovine defecation, and why do they need protection? Is it only himself, or are there others?
On the merits, so to speak, Chertoff refused to say what advice he had given with regard to specific interrogation techniques. In this connection he in effect had a mantra. It can be described as follows: "I was asked for practical advice on how the anti- torture statute might apply. Whatever techniques were mentioned to me in this regard, my answers were always the same. I always said I cannot evaluate, and give advance approval regarding, a set of hypothetical facts. But if you are nervous about something, you’d better take a close look at the statute and be sure you are doing the right thing. Intent is always crucial to a prosecutor: in determining whether to prosecute, a prosecutor always looks to see if behavior was honest, diligent and in good faith." Chertoff also said he was not consulted with regard to the second Bybee memo.

Chertoff’s mantra is worlds apart from what was said in The Times article. They can’t both be right. One is wrong, someone -- either Chertoff or the senior officials who spoke to The Times -- is lying. The senior officials say waterboarding and other specific techniques were discussed and the CIA was assured that in certain circumstances waterboarding would not result in prosecution. Chertoff, on the other hand, who allegedly can’t remember what specific techniques were discussed, claims never to have said that any specific techniques would not result in prosecution, but instead to always have said people should be very careful if something seems close to the line, and that intent is crucial. The senior officials say Chertoff was consulted on the second Bybee memo, which dealt with specific techniques of torture and is still classified, but Chertoff, on the other hand, says he was not consulted with regard to this memo. As I say, someone is lying (unless The Times got the senior officials’ statements all wrong, which somehow seems the least likely possibility in a situation like this).

If someone is lying, my candidate for most likely possibility is Chertoff. The reason is that, even aside from his desire to be approved by the Senate and the fact that approval of waterboarding could be a real problem in this regard, a number of his statements do not have the ring of truth. In addition to his not-very-believable claim of not remembering whether things like waterboarding were discussed, his mantra about not being able to give advice in advance on the basis of hypotheticals, and focusing solely on intent, honesty and good faith instead, rings false for several reasons. Prosecutorial and other agencies often give advance advice on the basis of hypothetical situations that are brought to them for that very purpose. Some agencies even encourage people to bring situations to them for this purpose. And, if Chertoff refused to opine on specific interrogation practices, if all he would ever say is be careful and intent is crucial, why did the CIA people (or whomever) come back to him for advice on multiple occasions? What would have been the use after one or two tries?

Nor is there any sense in Chertoff’s claim that all he did is tell the CIA or others that intent and good faith make all the difference. Waterboarding has been described here previously. As the description shows, it is torture plain and simple. It can be done with allegedly the best of intent, and it still is torture. One can call it a hypothetical situation if one wants, but it remains torture. It is therefore illegal under the anti-torture statute. Intent, good faith and honesty simply cannot enter into it or torture has no meaning. To say that, if there is good intent, then waterboarding is not torture is like saying that, if there is good intent, then ripping out fingernails or applying electroshock to the testicles are not torture. This is not something that can be evaded by claims of waterboarding supposedly being a hypothetical situation -- which it of course was not. So Chertoff’s statements in this regard have the ring of Lars-Erik Nelson’s enemy.

Even though Chertoff’s claimed focus on intent rings false, there is one (perhaps somewhat complex) circumstance that could, if true, explain why this bovine defecation is being put forth by Chertoff now. It is a little noticed but crucial aspect of the infamous Bybee memo -- little points that are crucial are often overlooked in the media -- that it said that torture was not torture if engaged in with an objective other than to inflict pain, e.g., with the objective of obtaining information rather than to inflict pain. (Pain is "only" the necessary byproduct of obtaining the information, you see.) Under this definition, torture would almost never be illegal, because it almost always is engaged in with the objective of obtaining information, with pain being only the means that produce the end result. Also the late December 2004 memorandum which people universally speak of as supposedly retracting the Bybee memo did not completely do that. Instead it has a huge loophole big enough to drive a truck through: it has a sneaky footnote under which it does not retract certain other torture memo, which are still classified.

The second Bybee memo is one of those, I gather. So what it all may come down to is this: By saying now that he focused on intent, which almost certainly must be a major factor in the second Bybee memo, as in the first, Chertoff is preserving the "nonprosecutability" of people who relied on the second Bybee memo as authority to engage in torture with impunity because they were desperately seeking vital information from prisoners.

There is yet one other reason why Chertoff’s statements to Congress ring false. Two other people who were involved with the torture mongering -- Jay Bybee and William Haynes -- have been rewarded by federal appellate judgeships. Chertoff too received this reward (and now has been again rewarded by another nomination). Was Chertoff, unlike Bybee and Haynes, rewarded because, or even though, he refused to do what the Administration wanted, refused to say that interrogation practices like waterboarding were legal, and refused to provide the assurance of safety desired by the CIA? It’s possible but not likely. Of course, one may retort that, even according to the unnamed senior officials, he refused to say that threats of imminent death were permissible. Even so, from everything one reads, waterboarding was the big noise from Winnetka (to make a bad pun relating to Rummy’s hometown), i.e., waterboarding was the tactic the CIA really wanted to use, maybe even was desperate to use, as it had been used by the French in Algeria and by the Argentinians and Uruguayans.

So, for various reasons, it seems to me that Chertoff’s testimony rings false. His testimony sounds to me like an example of one of the recently ever-increasing banes of our existence for the last 50 years or so: the use of their intellects, by people of high level, even brilliant, or even genius level abilities, to further dishonest ends, perverse ends, often evil ends. This may yet result in ruination of our country, and God knows it made things worse when it existed in the bureaucracy or among politicos in the times of Johnson, Nixon and Clinton. But whether it is Chertoff who is not telling the truth, or unnamed senior officials who are not telling the truth, it is plain that somebody is not telling the truth.

It is, as said, important to get to the bottom of all this, because Chertoff has the earmarks of a stealth Bush Administration candidate for the Supreme Court. Sure, he seems to have advocated the use of military tribunals instead of civilian courts to try detainees, and sure he has said we have to debate what to do with the detainees. But it is obvious the Bushies see something in him that they like very much. Bush is not in the habit of nominating opponents for the federal courts of appeal, let alone to be Director of Homeland Security. And from Bush’s standpoint, Chertoff has a desirable profile for nomination to the high court in one or two years if he keeps his skirts clean as Director of Homeland Security, a profile that will shout for Senatorial approval. As said, he is a magna cum laude graduate of Harvard College, a magna cum laude graduate of Harvard Law school, a former clerk to Judge Gurfein of the Second Circuit Court of Appeals, and a former clerk to Judge Brennan on the Supreme court (Brennan’s liberalism will make Chertoff even harder to oppose). He has been a partner in a major law firm, was head of the Criminal Division of the Department of Justice during a critical period, is presently a federal court of appeals judge, and a year or two from now will have been the Director of Homeland Security. Can you draw up a better profile from the standpoint of George Bush? Does anyone think all this has escaped Karl Rove? If it occurred to an unknown, non-political law dean in northern Massachusetts, it is not bloody likely to have escaped the crafty Rowe. Not for nothing is he a political evil genius.

So, if the Democrats do not raise more questions now about what Chertoff really did with regard to the torture mongering, and if they vote for him even though those questions have been neither raised nor answered, they are likely to be confronted in a year or two with a Supreme Court nominee who has a tremendous paper record and with regard to whom the Republicans will say, "You voted for him for the Court of Appeals, and you voted for him for Director of Homeland Security despite the claim that he had been involved in the discussions on torture. You therefore should not be refusing to vote now for a candidate with such excellent credentials because of discussions which did not dissuade you from voting for him in the past for a position as crucial as Director of Homeland Security." The Democrats are going to be faced, that is, with exactly the same kind of argument they would have been faced with in regard to Gonzalez had they not ultimately decided to do the right thing and vote against Gonzalez.

Of course, as with Gonzalez as well, perhaps more information on what Chertoff did with regard to torture will leak out in the next year or so. This is a pretty uncertain read, however, on which to base a refusal by Democrats to do the right thing now.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.