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Bush/Cheney Pushed Torture on DOJ

By Jason Leopold
June 8, 2009

In 2005, Attorney General Alberto Gonzales bent to demands from President George W. Bush and Vice President Dick Cheney to push through new legal opinions sanctioning harsh interrogation of terrorism suspects, according to e-mails written by then-Deputy Attorney General James Comey.

"The AG explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP's request and the AG had promised they [the opinions] would be ready early this week," Comey wrote in one of several e-mails obtained by the New York Times.

The Times revealed the e-mails Saturday in an article that focused more on Comey’s acceptance of the legal interpretations of the anti-torture statute than on the behind-the-scenes battle over the White House demand that the Department of Justice reauthorize the “enhanced interrogation techniques.”

The White House role in pressing the DOJ’s Office of Legal Counsel to sign off again on the brutal tactics – after other OLC lawyers working with Comey had withdrawn the earlier approval – is crucial in assessing whether the OLC offered honest legal guidance or simply tailored its opinions to fit the desires of Bush, Cheney and other policymakers.

A key defense line for Bush has been that the President was just following the advice of the OLC, which is responsible for setting parameters on presidential authority, and thus Bush and his senior aides shouldn’t be held accountable for any law violations. However, if the White House had been stage-managing those opinions, that defense would crumble.

Comey’s e-mails offer additional proof that the White House was, in fact, pulling the strings on the OLC’s legal opinions, especially after Bush’s longtime legal counsel Gonzales was elevated to the post of Attorney General in 2005.

On April 27, 2005, several weeks before the OLC issued the first of the new memos, Comey sent an e-mail to his Chief of Staff Chuck Rosenberg describing a meeting with Gonzales about a draft legal opinion on allowing CIA interrogators to employ a combination of torture techniques against detainees.

“In our private meeting yesterday afternoon, I told [Gonzales] I was here to urge him not to allow the ‘combined effects’ memo to be finalized,” Comey wrote. “I told him it would come back to haunt him and the Department. I told him the first opinion [regarding legal interpretations of U.S. anti-torture statutes] was ready to go out and I concurred. I told him I did not concur with the second and asked him to stop it.”

Politicizing Justice

Comey wrote that Gonzales had essentially allowed Cheney and his legal counsel David Addington to politicize the Justice Department, with Gonzales complaining that “the VP kept telling him ‘we are getting killed on the Hill,’” a suggestion that members of Congress were raising objections about the interrogation policies.

“It leaves me feeling sad for the Department and the AG,” Comey said. “I just hope that when this all comes out, this institution doesn't take the hit, but rather the hit is taken by those individuals who occupied positions at [OLC and the AG’s office who] were too weak to stand up for the principles that undergird the rest of this great institution.”

According to Comey, Gonzales agreed about clearing the first opinion but not the second, promising to “speak with [White House Counsel] Harriet Miers and share the concerns.”

Comey added that Gonzales “also directed me to call [CIA general counsel] John Rizzo and the CIA and give him some comfort by saying the first [OLC memo] would be done and that we would need to do additional work on the second.”

Comey was not the only one concerned with the authorization to the CIA to use “combined effects” during interrogations. Patrick Philbin, the OLC’s deputy assistant attorney general, also raised red flags.

“Pat alerted me to his serious concerns about the adequacy of the ‘combined effects’ analysis, particularly as it related to the category of ‘severe physical suffering,” Comey wrote.

After sharing Comey’s concerns with the Principals Committee – which included Secretary of State Condoleezza Rice, Cheney and Addington – Gonzales told Comey that DOJ’s objections didn’t matter, that Cheney and Addington were demanding that the disputed memo be finalized.

“I told [Gonzales] the people who were applying pressure now would not be there when the [expletive] hit the fan,” Comey wrote in an April 28, 2005 e-mail. “It would be Alberto Gonzales in the bull’s-eye. I told him it was my job to protect the department and the AG and that I could not agree to this because it was wrong.

“I told him it could be made right in a week, which was a blink of an eye, and that nobody would understand at a hearing three years from now why we didn’t take that week.”

In another e-mail, also dated April 28, 2005, Comey suggested that the legal opinion may have been needed quickly to provide retroactive cover for torture that already occurred. 

Gonzales's Chief of Staff Ted Ullyot "mentioned at one point that OLC didn't feel like it could accede to my request to make the opinion focused on one person because they don't give retrospective advice," Comey wrote to Rosenberg. "I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often."

The identity of the detainee Comey had referred to is unknown.

Internal Battle

Steven Bradbury, who was acting head of the OLC during Bush’s second term, signed the May 2005 memos to reverse efforts led by former Assistant Attorney General Jack Goldsmith in 2003 and 2004 to scrap earlier OLC memos asserting Bush’s powers over detainee treatment.

Senior Bush administration officials, including Addington and Cheney, were furious at Goldsmith, who had Comey’s support in knocking down memos by previous OLC lawyers John Yoo and Jay Bybee.

In 2002, Yoo and Bybee worked closely with the White House to create legal arguments for Bush to claim that his Commander-in-Chief power essentially let him operate beyond the law.

In the May 2005 memos, Bradbury reinstated key elements of the Yoo-Bybee memos clearing the way for additional use of “enhanced interrogation techniques” against detainees.

In another e-mail, Comey wrote that Bradbury had succumbed to pressure from Cheney and Addington because he wanted to be nominated for the prestigious job as head of OLC.

"I have previously expressed my worry that having Steve as ‘Acting’ -- and wanting the job -- would make him susceptible to just this kind of pressure," Comey wrote. (After signing the earlier memos, Bybee also was given the job he wanted, a lifetime seat on the U.S. Court of Appeals in San Francisco.)

In her book, The Dark Side, New Yorker reporter Jane Mayer recounted the episode that Comey described in his e-mails. She wrote:

"The White House was so pleased with Bradbury's work that the day after he completed his opinion legalizing the cruelest treatment of U.S.-held prisoners in history, President Bush sent his name forward to the FBI to begin work on a background check, so that Bradbury could be formally nominated to run the OLC. Evidently, the White House had received the ‘work product’ it wanted; Bradbury had passed his probation.”

One day after Bradbury signed the last of three torture memos issued in May 2005, Comey sent another e-mail to Rosenberg.

“In stark terms I explained to him what this would look like some day and what it would mean for the president and the government,” Comey wrote on May 31, 2005. (Though Bush nominated Bradbury to be assistant attorney general at the OLC, the Senate never approved the nomination.)


In the same e-mail, Comey said he, OLC deputy Philbin and Bradbury met with Gonzales that morning to prepare the Attorney General for his meeting with the Principals Committee, which was chaired by Rice.

Gonzales “began by saying that Dr. Rice was not interested in discussing details [of the list of torture techniques] and that her attitude was that if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for detailed policy discussion.

“Pat [Philbin] and I urged [Gonzales] in the strongest possible terms to drive a full policy discussion of all techniques. I said I was not going to rehash my concerns about the legal opinion, but it was simply not acceptable for Principles [sic] to say that everything that may be ‘legal’ is also appropriate.

“In stark terms, I explained to him what this would look like some day and what it would look like for the President and the government. … I told him it would all come out some day and be presented in the way I was presenting it.”

However, after losing the battle over the May 2005 torture memos – and having also offended the White House regarding its warrantless wiretap program – Comey knew his days were numbered. He soon resigned.

On Aug. 15, 2005, in his farewell speech, Comey urged his colleagues to defend the integrity and honesty of the Justice Department.

“I expect that you will appreciate and protect an amazing gift you have received as an employee of the Department of Justice,” Comey said. “It is a gift you may not notice until the first time you stand up and identify yourself as an employee of the Department of Justice and say something – whether in a courtroom, a conference room or a cocktail party – and find that total strangers believe what you say next.

“That gift – the gift that makes possible so much of the good we accomplish – is a reservoir of trust and credibility, a reservoir built for us, and filled for us, by those who went before – most of whom we never knew. They were people who made sacrifices and kept promises to build that reservoir of trust.

“Our obligation – as the recipients of that great gift – is to protect that reservoir, to pass it to those who follow, those who may never know us, as full as we got it. The problem with reservoirs is that it takes tremendous time and effort to fill them, but one hole in a dam can drain them.

“The protection of that reservoir requires vigilance, an unerring commitment to truth, and a recognition that the actions of one may affect the priceless gift that benefits all. I have tried my absolute best – in matters big and small – to protect that reservoir and inspire others to protect it.”

Though the full import of Comey’s comments was not apparent at the time, it now appears that he was referring to the legal gamesmanship that had enabled the Bush administration to circumvent American laws and traditions to engage in torture.

Jason Leopold has launched his own Web site, The Public Record, at

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