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Exhibit A in the War Crimes Trial That Won’t Ever Be Held

We’ve long known that the CIA waterboarded at least three Al Qaeda detainees.

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.

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