As I wrote last week, the case of Al-Haramain Islamic Foundation v. Obama has showcased the Obama justice department’s willingness to fight tooth-and-nail to protect its authority to conceal information it deems a “state secret,” even if it’s covering up for actions of the prior administration. The purpose seems to be more about defending the executive’s right to assert the “state secrets privilege” to dismiss a case in the future, and to determine when classified information can or can’t be released to the public, rather than about protecting the specific information involved in the case, since, as I’ve explained before, we all pretty much know at this point what that information is. (The government accidentally provided it to Al-Haramain’s lawyers, who suddenly knew they’d been wiretapped and filed the lawsuit.)

As the Journal puts it, given the Obama DOJ’s assertion that the president alone has the right to decide when to release classified information, regardless of the orders of a federal judge, “we’re beginning to wonder if the White House has put David Addington, Mr. Cheney’s chief legal aide, on retainer.”

Even if the Journal is just beating up on Obama to discredit him (after all, it goes on to say it agrees with the Justice Department’s broad assertions), the editorial does raise an important question: are the Democrats (and the mainstream media) turning a blind eye to broad claims of executive power that they denounced just last week when similar theories of executive authority surfaced in Office of Legal Counsel memos produced under President George W. Bush?

So does it matter if the interrogation techniques that were used, authorized and encouraged by senior officials in the US government for use on suspected Taliban or al Qaeda detainees – as confirmed by the recent Senate Armed Services Committee Report on the Treatment of Detainees in US Custody – are called “torture”?

You bet it does.

The role of language in the ongoing debate over what to do about the Bush administration’s authorization of torture and other “extreme” interrogation techniques was the subject of a thoughtful discussion last night in New York sponsored by PEN America and the American Constitution Society.

New Yorker writer Jane Mayer, author of the highly influential book, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, warned against getting hung up on the label “torture” and focusing instead on the fact that either way, this was “deliberate cruelty” and morally wrong.

But as every lawyers knows, there are consequences to the language used. The advice of lawyers may well be why, as the lawyer and Harper’s writer Scott Horton observed last night, much of the mainstream news media, including such supposedly liberal-leaning newspapers as The New York Times and The Washington Post, have steadfastly refused to use the word “torture” — even when describing waterboarding, stress positions, sleep deprivation and other interrogation techniques that were used by US officials on detainees and have long been considered torture by US authorities.

As I’ve written before, waterboarding in particular has for more than half a century been prosecuted by US authorities as a form of unlawful torture. A US federal judge has publicly made the same point. (And VP Dick Cheney recently admitted to authorizing it.) Still, producers for PBS’s Jim Lehrer News Hour told Horton, as he was being prepared to appear on that show recently, that he musn’t rush to judgment in describing the techniques while on camera. Using the word “torture” on the show, Horton understood, was verboten.

The result is that the mainstream media has allowed the Bush administration to give itself a pass, to whitewash what it did as “harsh,” “tough,” or “extreme interrogation” — which after all doesn’t sound unreasonable in a war against terror – and to consistently deny that this conduct violated the law.
As Goldsmith wrote in his book, The Terror Presidency, quoted in the recent Senate report, Bybee’s memo essentially said to administration officials: “Violent acts aren’t necessarily torture; if you do torture, you probably have a defense; and even if you don’t have a defense, the torture law doesn’t apply if you act under the color of presidential authority.”

The Administration’s lawyers – Bybee, David Addington, John Yoo and AG Alberto Gonzales – all knew full well that it matters what you call it. Because if the defense of “acting under presidential authority” fails – in other words, if it turns out that the president is actually required to follow the law – then if they’d committed torture, in violation of the federal torture statute, the Geneva Conventions and the UN Convention against Torture – then they could all be in big trouble.

That is, of course, what many of them are probably worried about now, and why legal scholars and human rights advocates worry that the Bush administration will issue a blanket pardon to everyone who was involved.

After all, a lame duck can still lay eggs.

We’ve also long known that the Justice Dept., at the behest of a Central Intelligence Agency deeply fearful about its legal vulnerabilities, endorsed the torture techniques that CIA leadership desired. And we’ve recently learned that George W. Bush’s principal aides, including Condoleezza Rice, were aware of all the Spanish Inquisition-derived instruments of cruelty that the government was rehabilitating — as was Bush himself.

But now The Washington Post reports that in 2003 and 2004 — after those detainees had already been waterboarded — the White House explicitly authorized waterboarding in a pair of still-classified memoranda.

The memos were the first — and, for years, the only — tangible expressions of the administration’s consent for the CIA’s use of harsh measures to extract information from captured al-Qaeda leaders, the sources said. As early as the spring of 2002, several White House officials, including then-national security adviser Condoleezza Rice and Vice President Cheney, were given individual briefings by Tenet and his deputies, the officials said. Rice, in a statement to congressional investigators last month, confirmed the briefings and acknowledged that the CIA director had pressed the White House for “policy approval.”

Marcy Wheeler at FDL has the right follow-on question: Whose signature is on the memos? Wouldn’t it have to have been Bush’s? If it didn’t suffice to have Alberto Gonzales’ signature on the authorization for warrantless surveillance in March 2004 (instead of the attorney general’s), wouldn’t the president have had to be the one ordering the CIA to subject detainees to an unambiguously illegal activity?

Certainly that’s the logic of the CIA fears that undergirded the memoranda.

Consider what The Post reports:

“The suggestion that someone from CIA came in and browbeat everybody is ridiculous,” said one former agency official familiar with the meeting. “The CIA understood that it was controversial and would be widely criticized if it became public,” the official said of the interrogation program. “But given the tenor of the times and the belief that more attacks were coming, they felt they had to do what they could to stop the attack.”

The CIA’s anxiety was partly fueled by the lack of explicit presidential authorization for the interrogation program. A secret White House “memorandum of notification” signed by Bush on Sept. 15, 2001, gave the agency broad authority to wage war against al-Qaeda, including killing and capturing its members. But it did not spell out how captives should be handled during interrogation.

I know we’ll never ever have the war-crimes trial for Bush that is so obviously warranted. But if we did, these memos would make for powerful evidence.

Bush, Cheney, Gonzales, Yoo, Addington, Rice, George Tenet and the rest of them should think about tearing up their passports, because more and more nations are acknowledging universal jurisdiction for war crimes offenses.