First he criticized Obama’s “apparent” decision not to continue personal video teleconferencing with the Gen. Stanley McChrystal in Afghanistan and Gen. Raymond Odierno in Iraq, an arrangement Cohen said served President George W. Bush during the surge. Then he said Obama’s decision to create “special envoys” for a variety of tasks left a bad taste in his mouth, since it wasn’t clear to whom they report — “the president, the secretary of state” — and what institutional bureaucratic support they actually command. Then came the crescendo.

Obliquely referencing the leaked McChrystal review as the “events of this week,” Cohen said bringing disputes about “strategy” into the public had “real impact” — deleterious impact — for events “on the ground,” since friends, enemies and undecideds “all watch CNN.” And now, Cohen intimated but did not say directly, they’d question Obama’s “commitment” to Afghanistan.

Cohen’s comment could be interpreted as criticizing the leaker, since it wasn’t the Obama administration that handed McChrystal’s review to Bob Woodward. But his emphasis on public “strategy” disputes appeared to be aimed at Obama, who told “Meet The Press” that he wouldn’t add troops until he’s convinced his Afghanistan strategy is correct, a comment that’s led to much speculation about whether Obama has counterinsurgency “buyer’s remorse.”

Marcy digs through the IG report and unearths what the report calls “an undated and unsigned document” that “expanded” the use of those techniques “beyond the interrogation of Abu Zubaydah.” The document, entitled “Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa’ida Personnel,” has never before been disclosed, and it was apparently written, according to the report, by the CIA’s Office of General Counsel, but “fully coordinated” and “drafted in substantial part by OLC,” the Justice Department’s Office of Legal Counsel. An excerpt, dealing with the legality of specific techniques, reads:

The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees’ hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board.

Marcy’s emphasis. Notice that this language, including the parentheticals, appears verbatim in Tenet’s guidelines for both “standard” and “enhanced” techniques from Jan. 23, 2003. Tenet’s “Standard Techniques”:

Among Standard Techniques are the use of isolation, sleep deprivation not to exceed 72 hours, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainee), deprivation of reading material, use of loud music or white noise (at a decibel level calculated to avoid damage to the detainee’s hearing), and the use of diapers for limited periods (generally not to exceed 72 hours), [REDACTED]

Tenet’s “Enhanced Techniques”:

These techniques are, [sic] the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation beyond 72 hours, the use of diapers for prolonged periods, the use of harmless insects, the water board, and such techniques as may be specifically approved pursuant to paragraph 4 below.

Again, we don’t know when the memo was written — by design, as it’s undated and unsigned, a gigantic blinking red light. A footnote on page 22 of the report indicates that it was attached to a document delivered, apparently, to the inspector general’s office on June 16, 2003. That’s as close as we get to an answer as to the document’s provenance. But the language contained within it appears to be the wellspring for Tenet’s “standard” and “enhanced” interrogations — and apparently the CIA’s general counsel helped write the rules the agency’s personnel would operate within. Attorney General Eric Holder’s new probe is an implicit argument against the wisdom of that decision.

A question that remains unanswered: why did Tenet, the CIA’s general counsel and OLC evidently believe that forcing someone to wear a diaper for “72 hours” should be a “standard” interrogation technique and any longer should be an “enhanced” one?

Perhaps. But according to the Senate Select Committee on Intelligence’s declassified narrative on torture, Rice, as national security adviser in 2002, was the highest-ranking Bush official to approve torture as a “policy” matter. That approval came on July 17, 2002, before the Justice Department’s Office of Legal Counsel gave its legal imprimatur to the torture of Abu Zubaydah. Now, people change their minds all the time, so maybe that’s what happened to Rice, particularly as she became secretary of state and saw what the international outcry from Abu Ghraib meant for U.S. diplomacy. But that’s conjecture. How did the Rice of 2002 evolve into the Rice of 2005 on the issue?

I asked Zelikow after the hearing ended, but he was circumspect. “I did not interrogate Dr. Rice about anything she did in the first Bush administration,” he replied. But he said it would be “useful to find out how the [CIA interrogation] program was understood” by Bush administration policymakers, adding that his experience suggested it was “sold incrementally” to them. The implication — sympathetic as it is to Zelikow’s former boss — is that Rice may not have fully understood what CIA Director George Tenet was asking her to approve.

From their letter, which they sent to the secretary on April 30:

We write seeking access to an important State Department memorandum necessary for the Judiciary Committee’s ongoing investigation of the role Justice Department lawyersin approving interrogation practices of the former Administration. This document may also shed significant light on the role played by State Department experts in the interagency process that led to the implementation of these practices, a matter of substantial interest to the Foreign Affairs Committee and its Subcommittee on International Organizations, Human Rights and Oversight.

If only I had a gavel.

Rice took the question in stride. First, she said she was reluctant to criticize Obama. “I will not agree with everything they do, and I won’t agree with everything they say,” she said. “But the worst thing about being in government is that people outside government who don’t have to deal with the daily struggles you do, and aren’t trying to solve really difficult problems, are just sitting out there commenting and criticizing, particularly people who’ve just been in government. That’s really unfair. So for the time being, if I disagree, I will keep it to myself.”

I know, I know. The real victims here are the former Bush officials who have to endure an endless litany of bad-faith criticism from, like, citizens. Remember: they whipped the Savior up the hill that morning. Draw strength from the example, Ms. Rice. (Sorry, Doctor Rice.)

Then she got to the heart of the question. “Let me just say that President Bush was very clear that he wanted to do everything he could to protect the country. After Sept. 11, [2001,] we wanted to protect the country,” she said. “But he was also very clear that we would do nothing, nothing that was against the law or against our obligations internationally. So the president was only willing to authorize policies that were legal in order to protect the country.”

She added: “I hope you understand that it was a very difficult time. We were all so terrified of another attack on the country. Sept. 11 was the worst day of my life in government, watching 3,000 Americans die. . . . Even under those most difficult circumstances, the president was not prepared to do something illegal, and I hope people understand that we were trying to protect the country.”

And I was trying to drive safely home, officer, and never intended to plow my car into that schoolyard full of fourth-graders. We can debate whether I should have had those drinks before getting behind the wheel, but my lawyers informed me that there were interpretations of the law under which everything I did was legal, and in any event my trusted friend told me that even before my lawyers gave me that advice I should go warm up the car. This is a time to look forward and not backward. And I might add that you weren’t even at the bar when we were making these plans.

The president instructed us that nothing we would do would be outside of our obligations, legal obligations, under the Convention Against torture. So that’s — and by the way, I didn’t authorize anything. I conveyed the authorization of the administration to the agency. That they had policy authorization subject to the Justice Department’s clearance. That’s what I did….

The United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so, by definition, if it was authorized by the president, it did not violate our obligations under the Conventions Against Torture.

My emphasis. I had intended to stop this post with a notation of Rice’s rather Nixonian overtones –”When the president does it, that means it is not illegal” — but it appears Rice has actually made some news here.

Until now, Rice has been the seniormost Bush administration official known to have signed off on waterboarding and other “enhanced interrogation” methods for Abu Zubaydah. In an April 2008 interview with ABC News, Bush said that he knew that his top advisers had met to discuss what was acceptable for the interrogation of Abu Zubaydah in the spring of 2002, but acknowledged merely that he “approved” of such meetings while giving no indication that he specifically signed off on the interrogation plan.

But Rice is now portraying herself as merely being a conduit for approving the CIA’s interrogation regime: “I conveyed the authorization of the administration to the agency.” Well, there are only two more-senior officials than Rice in this context, and that’s Bush and then-Vice President Dick Cheney. If she hadn’t made a decision on the part of the administration for the Abu Zubaydah interrogation plan, only one of these two men would have had the authority to do so.

And all of this would have happened before the Justice Department determined the interrogation techniques to be legal.

Here’s the video:

On July 17, 2002, according to CIA records, the Director of Central Intelligence (DCI) met with the National Security Adviser, who advised that the CIA could proceed with its proposed interrogation of Abu Zubaydah.  This advice, which authorized CIA to proceed as a policy matter, was subject to a determination of legality by OLC. On July 24, 2002, according to CIA records, OLC orally advised the CIA that the Attorney General had concluded that certain proposed interrogation techniques were lawful and, on July 26, that the use of waterboarding was lawful.  OLC issued two written opinions and a letter memorializing those conclusions on August 1, 2002.

First, this is the exact opposite of how policy is supposed to exist. You determine first what’s legal. Then and only then do you consider a palette of options for what’s necessary, desirable, wise, etc. But here’s Condoleezza Rice telling George Tenet it’s OK “as a policy matter” to torture Abu Zubaydah before knowing from the Office of Legal Counsel what’s actually legally permissible.

Second, under those circumstances, how in the world is the OLC supposed to come to any conclusion except that it should rubber-stamp the CIA’s interrogation program? I’m not saying that Jay Bybee or John Yoo derived a rationale for torture against their will. They’ve given no public indication of that. Yoo, for example, has only ever defended what he wrote. What I mean to say instead that is that alternative viewpoints had, by this point, already been discarded, and so there was only ever the question of how to make the CIA interrogation proposals legal — despite the fact that the opening sentence of the August 1, 2002 OLC memo on interrogation techniques says the office is considering “whether certain proposed conduct would violate the prohibition against torture.” What kind of process is this?

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that:  The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives.

To ask an impolite question of Zelikow: why didn’t he resign?

I know, resignations of senior officials are few and far between. But it seems like this is one of those issues — the entrenchment of a widespread system of abusive interrogations that are, you acknowledge, most likely illegal — that merits walking out the door. I’m not trying to play the critic, especially after he’s offered such a candid, honest view of his tenure. Nor do I mean to imply that resignation is an easy thing — particularly if you’re trying to change the system from within.  But it still seems like a question worth asking.

Then there’s this bottom-line assessment:

Opponents should not overstate their side either. Had a serious analysis been conducted beforehand (it apparently was not), my rough guess is that it might have found that physical coercion can break people faster, with some tradeoff in degraded and less reliable results.

If so, that doesn’t sound like the opponents would be overstating their case at all. Acquiring unreliable intelligence isn’t valuable, no matter how rapidly it’s collected. And it’s certainly not valuable if the cost is breaking the law and violating someone’s basic rights, even a terrorist’s.

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