Cheney told Karl that he continues to be critical of the Obama administration "because there were some things being said, especially after we left office, about prosecuting CIA personnel that had carried out our counterterrorism policy or disbarring lawyers in the Justice Department who had -- had helped us put those policies together, and I was deeply offended by that, and I thought it was important that some senior person in the administration stand up and defend those people who'd done what we asked them to do."
In an interview with Karl on December 15, 2008, Cheney made a similar comment, which Karl also allowed to go unchallenged, stating that the Bush administration "had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross."
Bush's Key Line of Defense Destroyed
Those statements, both on Sunday and in his December 2008 interview with Karl, destroys a key line in the Bush administration's defense against war crimes charges. For years, Cheney and other Bush administration officials pinned their defense on the fact that they had received legal advice from Justice Department lawyers that the brutal interrogations of "war on terror" detainees did not constitute torture or violate other laws of war.
Cheney's statements, however, would suggest that the lawyers were colluding with administration officials in setting policy, rather than providing objective legal analysis.
In fact, as I reported last year, an investigation by the Department of Justice's Office of Professional Responsibility (OPR) determined that DOJ attorneys John Yoo and Jay Bybee blurred the lines between attorneys charged with providing independent legal advice to the White House and policy advocates who were working to advance the administration's goals, according to legal sources who were privy to an original draft of the OPR report.
That was a conclusion Dawn Johnsen reached. Johnsen was tapped a year ago by Obama to head the Office of Legal Counsel (OLC), where Yoo and Bybee worked, but her confirmation has been stuck in limbo.
In a 2006 Indiana Law Journal article, she said the function of OLC should be to "provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies."
"The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients' desired actions, inadequately promotes the President's constitutional obligation to ensure the legality of executive action," said Johnsen, who served in the OLC under President Bill Clinton. "In short, OLC must be prepared to say no to the President.
"For OLC instead to distort its legal analysis to support preferred policy outcomes undermines the rule of law and our democratic system of government. Perhaps most essential to avoiding a culture in which OLC becomes merely an advocate of the Administration's policy preferences is transparency in the specific legal interpretations that inform executive action, as well as in the general governing processes and standards followed in formulating that legal advice."
In a 2007 UCLA Law Review article, Johnsen said Yoo's Aug. 1, 2002, torture memo is "unmistakably" an "advocacy piece."
"OLC abandoned fundamental practices of principled and balanced legal interpretation," Johnsen wrote. "The Torture Opinion relentlessly seeks to circumvent all legal limits on the CIA's ability to engage in torture, and it simply ignores arguments to the contrary.
"The Opinion fails, for example, to cite highly relevant precedent, regulations, and even constitutional provisions, and it misuses sources upon which it does rely. Yoo remains almost alone in continuing to assert that the Torture Opinion was "entirely accurate' and not outcome driven."
The original draft of the OPR report concluded that Yoo and Bybee violated professional standards and recommended a referral to state bar associations where they could have faced disciplinary action and have had their law licenses revoked.
The report's findings could have influenced whether George W. Bush, Cheney and other senior officials in that administration were held accountable for torture and other war crimes. But two weeks ago, it was revealed that officials in Obama's Justice Department backed off the earlier recommendation and instead altered the misconduct findings against Yoo and Bybee to "poor judgment," which means neither will face disciplinary action. The report has not yet been released.
For his part, Yoo had already admitted in no uncertain terms that Bush administration officials sought to legalize torture and that he and Bybee fixed the law around the Bush administration's policy.
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