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Jason Leopold on Cheney, Torture, and Obama's Shortsightedness

Joan Brunwasser

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uot;Cheney gloats, the media yawns, Obama sleeps." Can you tell our readers what you were referring to?

Hi Joan, great to speak to you and OpEdNews readers again.

I was referring to the admissions Dick Cheney made on ABC News last Sunday when he said he was "a big supporter of waterboarding" and a "big supporter of enhanced interrogation techniques."

That's tantamount to an admission of war crimes. President Obama, Attorney General Eric Holder and CIA director Leon Panetta have all said publicly that waterboarding is torture and torture is a violation of the Geneva Convention and Convention Against Torture. The US has prosecuted Japanese soldiers for waterboarding US personnel during WWII. So, Cheney's love of waterboarding amounts to an admission of a war crime and there's simply no other way to look at it.

The media allowed this admission to go unchallenged or simply reported it verbatim without critical analysis. And Obama continues to sweep evidence like this under the rug, refuses to uphold our obligations to prosecute war crimes and has thwarted every effort to hold people like Dick Cheney accountable.

Okay, Jason. We've got the What. So, let's delve into the Whys. And that's a multi-parter. Why is the media lying down for this? And what's up with Holder and Obama (which is really a Why in another form)?

Love your questions. In terms of why the media hasn't been more aggressive reporting Cheney's comments as an admission of war crimes and why the Obama administration has thwarted investigations, it's complicated.

First of all, the media refuses to acknowledge that waterboarding and every other "enhanced interrogation technique" is torture. Instead, the media says "what critics say or what critics refer to as torture." These acts have long been regarded as torture and this country has prosecuted waterboarding as torture. Secondly, look at that description: "critics say/critics regard."

That's very telling. The media is so frightened to flatly state that waterboarding is torture that they instead choose to pin the definition of "critics," which of course means civil liberties groups, Democrats, liberals, hippies, etc., because these are the groups that have been most vocal about the fact that the interrogation techniques approved is torture.

To me, and I'm sure to many others, once Obama and Holder and Panetta [are] defining waterboarding as torture, there is an obligation to take legal action against those who have engaged in torture. For Dick Cheney to admit on national television that he was a "big supporter" of waterboarding and other torture techniques and to not be held accountable and prosecuted I think has led the public to think of torture as a necessity and not what it is, which is a war crime.

Their reluctance is due to the fact that it is just politically impossible I would imagine or perhaps Obama truly does want to look forward. I have to admit that I cannot imagine what it would take to even attempt to prosecute a former vice president or president. Still, you would think that this administration would look to a foreign government to take action. However, this administration has tried to thwart efforts of other governments from taking action against the likes of John Yoo, Jay Bybee, Alberto Gonzales, and other former Bush administration officials.

It's an injustice that low-level grunts have been jailed and prosecuted for abusing prisoners based on policies set by the likes of Cheney and neither he nor Donald Rumsfeld, who personally approved interrogation techniques that were clear cut violations of the Geneva Convention, are held accountable. What this administration needs to understand is that there will continue to be explosive revelations about the Bush White House's torture policies in the months and years ahead and the pressure and calls for accountability will become louder.

Okay. So, Obama, Holder and Panetta are on the record stating that waterboarding is torture. Then,how do you explain their reluctance or refusal to follow up and the watering down of the official report? And, now that the report has been released, all 300 pages of it, what's in there that we should know about?

Well, Holder handed the report off to a career prosecutor, David Margolis, to review and state whether he would accept or reject the findings of "professional misconduct." He ultimately decided, as you know, to reject the recommendations and changed it to "poor judgment."

Obama has made it abundantly clear he will not allow any investigation into the past administration's crimes no matter how explosive the evidence. We have seen recent reports from the NYT and The New Yorker that say Rahm Emanuel appears to be politicizing the Justice Department by trying to block any effort to investigate, review, or raise questions about torture.

But that doesn't change the fact that Margolis engaged in what I believe is a whitewash in his final review of the OPR report. An investigation, mind you, that was launched in 2004. Here's what the Legal Times said about Margolis in a Sept. 18 2006 story. This is the headline and summary. And I think it says all you need to know:

Margolis is the DOJ's Ultimate 'Inside Man': National Law Journal
 David Margolis (right) is the most powerful career official at the Justice Department. He got there by making himself the man to call when a problem had to be cleaned up
09/18/2006 Jason McLure

The report is voluminous. There are a couple of drafts and a final version that was released as well as supporting documents and responses from Yoo and Bybee. This is ultimately what the report says:

, Yoo was found to have "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice" in five legal memoranda he prepared for the Bush administration.

Bybee was found to have "committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice" in two legal memoranda he signed.

OPR investigators also noted that during their four-and-a-half year probe, they were unable to obtain all of the evidence they needed. For example, they said "most" of Yoo's emails during the critical time period of August 2002 when the memos were drafted, "had been deleted and were not recoverable."

Finally, here's Margolis's reasoning, which is just stunning:

While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client," Margolis added.

"These memos contained some significant flaws," Margolis said. "But as all that glitters is not gold, all flaws do not constitute professional misconduct." He left it to the bar associations in the District of Columbia and Pennsylvania to decide whether to take up the issue of further discipline.

This Margolis sounds like a major piece of work. I understand that Rep. Conyers of the House Judiciary Committee is planning to call for hearings on this. What do you think? Is he our last chance? Can he get us something of what we should have gotten from either Obama or the press?

I think Conyers is our best hope in terms of hearing Yoo, Bybee, Cheney's former counsel David Addington and others testify publicly about what the DOJ's ethics report says about the flawed legal work they did for the Bush White House on torture. Conyers is currently working behind the scenes with Congressman Jerrold Nadler on a hearing about the report.

Even then, however, it will come down to how well informed Conyers and his staffers are on the report and the questions they pose to the witnesses. The hearing Senate Judiciary Committee Chairman Patrick Leahy held last week was an utter waste of time as it did not break any ground

I don't believe Conyers can get us anything other than sworn testimony from the likes of John Yoo and right now that's a good start.

Well, I guess it's good to have lowered expectations. One more topic to discuss, Jason. Whistleblowers, especially at the federal level, are often the only way the public knows anything about governmental abuses and wrongdoing. And yet, whistleblowers are constantly harassed, threatened, and often fired, rather than rewarded for their patriotism and bravery.

And now, besides for positive aspects to the Whistleblower Protection Act, there are also various poison pill provisions in the Senate version (S. 372) that actually make whistleblowing even more difficult. And the word was out last week that the bill was due to be hotlined, meaning no debate, no amendment, no roll call. Any comment?

This is just another example of how the president's and Congress's rhetoric stand in direct opposition to their actions. In fact, what the current legislation proposes is worse than the law currently on the books as it actually repeals an order signed by President Clinton protecting FBI agents who put their careers and lives on the line to expose wrongdoing.

Forcing this bill through, if that were to happen, would follow a similar route Democrat took when they renewed the Patriot Act for another year. There wasn't any debate and the Bush-era provisions in that bill were left intact. The privacy concerns raised by civil liberties groups, which Democrats promised to address last year, were simply swept aside. They did that, despite the widespread abuses documented in a voluminous FBI inspector general's report. With the Whistleblower Protection Act, Congress will make it impossible for any government employee to speak out*.

We keep thinking that things can't possibly get any worse. And then they do. It's so disheartening. Anything else you'd like to add before we wrap this up, Jason?

Thanks Joan. Sadly, I think things are going to become much worse before it gets better, particularly in the civil liberties area. This administration still has not made a clean break from the past administration's abuses. And, as Republicans continue to hammer the Democrats for being weak on national security, Democrats will continue to respond by implementing or renewing Bush era policies as a way of showing how tough they are. It's a vicious circle.

Well, this was informative even if it wasn't particularly fun or uplifting. Thanks for talking with me, Jason. We'll look forward to reading your coverage on this and other matters of public concern.

Thank you so much for your patience and for conducting a truly, truly great interview!

[Time Out. TAKE ACTION! Demand enhanced protection for federal employee whistleblowers!]

These are links to my reporting over the past two years on the OPR report on Yoo (all of which contained information that turned out to be dead on)

DOJ Report on Torture Memo: Yoo Said Bush Could Order "Massacre" of Civilians

Justice Department Clears Torture Memo Authors John Yoo, Jay Bybee of Misconduct

DOJ Report on Yoo/Bybee Torture Memos "Damning'

Four Years Later, Probe Into Genesis of "Torture Memo' Still Incomplete

Bush Aides Changed Watchdog Report

Yoo Memos Gave Retroactive Cover

Bush Team Ignored Waterboard Cases

DOJ Office Launches Formal Probe Into Legal Basis Behind Torture Memo

Here's my report on Cheney's admission to war crimes and the media ignoring it and Obama administration's refusal to take action:Cheney Admits to War Crimes, Media Yawns, Obama Turns the Other Cheek

And finally, here is a story on Yoo's missing emails: National Archives, Watchdog Demand DOJ Probe Destruction of John Yoo's Emails

Author's Bio: Joan Brunwasser is a co-founder of Citizens for Election Reform (CER) which exists for the sole purpose of raising the public awareness of the critical need for election reform. We aim to restore fair, accurate, transparent, secure elections where votes are cast in private and counted in public. Electronic (computerized) voting systems are simply antithetical to democratic principles.

CER set up a lending library to achieve the widespread distribution of the DVD Invisible Ballots: A temptation for electronic vote fraud. Within eighteen months, the project had distributed over 3200 copies across the country and beyond. Joan has been Election Integrity Editor for OpEdNews since December, 2005. Her articles also appear at RepublicMedia.TV and

March 8, 2010