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That's what the White House press secretary Dana Perino said concerning the New York Times' reports about White House involvement in the decision to destroy tapes of CIA interrogations.

What was "pernicious and troubling"? Not the decision to destroy them (which almost certainly violated criminal statutes barring obstruction of justice). Not the fact that senior White House officials, including former White House counsels Alberto Gonzales and Harriet Miers, had been involved in debates about the tapes' destruction. And surely not the fact that the CIA had flouted both federal laws that criminalize torture in the course of the taped interrogations.

No, the administration is up in arms that New York Times suggested that the White House had been "misleading" in its past statement on the tapes. As the White House notes, it had made no public comment on the matter, and the Times' sources were anonymous. But these sources did acknowledge Ms. Miers' role, and did not point to the part Mr. Gonzales and other senior officials had played. The Times didn't hide where it got its information. To the contrary, it was the first leaks about White House involvement in the tapes' destruction that were incomplete and hence misleading.

But the administration's feigned indignation, while farcical and disingenuous, should not distract from the larger question: The need for a thorough investigation into not only who decided to destroy the CIA tapes, but also why and how this decision was taken. This investigation can only be effectively conducted by a special counsel, who, while appointed by the Attorney General, has critical independence from political control. The last special counsel, Patrick Fitzgerald, showed that it was possible to conduct a thorough investigation without it turning it into a witch-hunt of the kind familiar from the Clinton years. As the evidence of high-level involvement mounts, there is no cause for delay.

A special counsel is needed because there remains real uncertainty as to why the CIA would be so worried into blatant violation of the law, and why there was "vigorous sentiment" in the White House to destroy the tapes. As I've explained elsewhere, the reasons for the tapes' destruction that General Michael Hayden has given are facially implausible. Yet CIA officials risked obstruction of justice to eliminate the tapes. And the White House privately urged their destruction while assiduously declining to order their preservation (plausible deniabilty, anyone?). And all to what end?

Emily Bazelon and Dahlia Lithwick, in a typically perceptive article, have suggested that the tapes were destroyed because their release would have put an end to "all sorts of fuzziness about what is and isn't torture and whether it is or isn't happening." If the tapes had been public, they suggest, Michael Mukasey could not have gotten away with obfuscating on water-boarding. And surely Brigadier General Thomas Hartman, the legal advisor for the Guantánamo military commissions, could not have insouciantly suggested that evidence from water-boarding could be "reliable and probative," and thus used in the forthcoming commission trials.

There is, without question, something to this: Consider the story of Acting Assistant Attorney General Daniel Levin, who was asked to deliver a legal opinion on whether water-boarding constituted torture. Showing what can only be termed exceptional devotion to duty, Levin had himself water-boarded so he could judge for himself. Unsurprisingly, he concluded afterwards that water boarding "could be illegal torture unless performed in a highly limited way and with close supervision."

But would the fuzziness really have dropped away? After all, the idea of enhanced interrogation measures hardly died when the Abu Ghraib pictures were released, when though those pictures pictured some of the measures allegedly still used by the CIA. Indeed, there has been no public outcry about stress positions, which have been part of the "enhanced interrogation measures."

Further, as Michael Massing points out in the New York Review of Books, there is ample public evidence of the staggering and horrific human cost of the Iraq war. Literally tens of thousands of innocents have died in horrific circumstances. Yet, as Massing notes, the public barely blinks an eye.

Public outrage, then, doesn't seem a sufficiently bad result to trigger flagrant law-violation. Could it be instead that these tapes not only showed illegal, criminal interrogation methods, but that the statements captured on film may have contradicted the White House's factual claims about other individual detainees or other putative successes in the war on terror? I.e., that it proved that senior Administration officials have in fact lied to the public? Could it be that the tapes have a broader political resonance beyond "merely" showing illegality, a resonance that shook even the White House? These are mere suppositions, empty postulates for now. It is impossible to know for certain without a thorough investigation.

At present, the administration is facing investigations from two directions. Both are important and necessary. Neither provides a sufficient remedy.

First, a federal judge in Washington, DC, Judge Henry Kennedy, has ordered a hearing on Friday on the tapes' destruction. In July 2005, Kennedy ordered the preservation of interrogation tapes. The tapes' destruction is clearly grounds for a finding of contempt of court -- and provides important new evidence that the Guantanamo detainees have indeed been railroaded.

But Judge Kennedy's inquiry into the tapes destruction is necessarily limited: He can only look at the tapes to the extent they affect the case before him. (Another case filed on behalf of Abu Zubaydah himself might lead to a broader inquiry, but that faces substantial threshold delays and difficulties. But as we know from the fraught trial of Oliver North in the late 1980s, it is very difficult for courts to get at systemic problems of law violation within the federal government. Individual litigation is simply too narrow a tool to excavate systemic wrongdoing.

Second, House Intelligence Chairman Silvestre Reyes (D-TX) has indicated that he intends to subpoena the CIA officials involved. Reyes is rightly unimpressed by Attorney General Mukasey's argument that congressional investigations would interfere with the internal investigation: During Watergate, Whitewater, and Iran-Contra, congressional and internal investigations proceeded in parallel with minimal problems. There is simply no cause for Congress to stay its hand while the Justice Department acts.

Indeed, there is every reason to be skeptical of the present Justice Department investigations. After all, the Justice Department apparently knew of the CIA's interest in destroying the tapes--and yet did nothing when the tapes were destroyed in flagrant violation of Judge Kennedy's order (and in violation of an order from Judge Alvin Hellerstein in New York in a Freedom of Information Act suit filed by the ACLU). News that former Attorney General Gonzales was involved in deliberations about the tapes casts another cloud over the credibility of Justice Department investigations.

Yet congressional investigations are likely to prove insufficient to get to the bottom of the tapes' destruction. This White House has consistently played hardball through aggressive use of "executive privilege" to block congressional inquiries, for instance into the firing of the U.S. Attorneys. There is every reason to expect that the White House will stall and run the clock on congressional investigations by delaying resolution past the 2008 elections.

All of these inquiries are important, but they must be supplemented within a speedy criminal investigation conducted by a reputable and independent prosecutor. Justice Department regulations allow the appointment of such a special counsel in cases such as this one, where the entire department operates under a cloud. True, that makes Mukasey get to decide who will investigate, but his decision will be public and thus subject to public criticism and congressional pressure. As with the Valerie Plame investigation, it would be very hard to appoint a crony and get away with it.

In a funny way, the White House has shown the way. Yes indeed, what's unfurling with the story of the CIA tapes in "pernicious and troubling": It is showing a deep malaise in the executive branch, an apparent disregard for the law, and manifest contempt for the public. It is long past time all that was snuffed out--and a special counsel is the best tool for the job.

*Cross-posted from The Huffington Post

Last week's New York Times story about two secret Justice Department legal opinions on CIA interrogation techniques leaves no room for doubt. We are in the midst of a full-fledged scandal involving illegality and deceit at the highest levels of the United States government. Call it Torturegate.

For the past six years, the, the administration has deliberately circumvented longstanding prohibitions against torture and other abuse. It has facilitated and sanctioned the use of highly coercive interrogation tactics, not only in secret CIA prisons (or "black sites") but also at Guantánamo Bay and even in the United States. Perhaps worst of all, the administration has sought, in secret, to justify the techniques as legal.

Torturegate's origins lie in the decisions and writings of a cabal of high-ranking officials from the White House and the Office of Legal Counsel ("OLC"), the once prestigious branch of the Justice Department that function as the president's chief legal advisor. The participants included Vice President Dick Cheney, his chief of staff David Addington, former White House Counsel and Attorney General Alberto Gonzales, and OLC attorney John Yoo. None had any real life experience waging war or fighting terrorism. Yet, they all believed fervently that America had to "work ... the dark side" to defend itself.

This group helped initiate and defend a "war on terrorism" that eliminated all constraints on the treatment and interrogation of detainees. Not even the most minimal protections of the Geneva Conventions applied, opening the door to the creation of a global network of prisons beyond the law. Under the misguided assumption that harsh measures produce good intelligence, the United States began to engage in a series of so-called "enhanced interrogation techniques," including ones that simulate drowning and induce hypothermia. That these techniques did not leave physical marks did not make them any less cruel than the rack and the screw.

OLC then provided legal cover to assuage concerns that officials who engaged in these tactics might be liable under a federal statute criminalizing torture. A now notorious August 2002 legal memo (drafted principally by John Yoo) sought to define torture so narrowly as to render it meaningless, limiting it to the extreme physical pain accompanying organ failure or death. For good measure, the memo said torture could never be illegal as long as the president had approved it.

The public outcry after Yoo's memo was leaked to the press, coupled with internal opposition within OLC, prompted reconsideration. A subsequent memo from December 2004 called torture "abhorrent" and suggested a retreat from the prior assertion of sweeping presidential authority to engage in the practice. But the December 2004 memo did not question the legality of any of the torture tactics. Nor did it address the problem of other cruel, inhuman, or degrading treatment ("CID") that did not meet the legal definition of torture.

In 1988, the United States signed a treaty outlawing CID (or "torture lite" as it is sometimes called, a treaty that now more than 140 countries have ratified. But the administration dodged this binding legal obligation by arguing that the treaty does not restrain the United States when it acts abroad.

So, in December 2005, Senator John McCain and other members of Congress addressed this perceived loophole by categorically banning CID by any U.S. official, including the CIA, anywhere in the world.

But OLC, now under Gonzales' leadership, had already acted to keep the loophole open. As The New York Times reported last week, two secret OLC memos from earlier that year found that the harshest interrogation tactics did not constitute CID, even when used in combination. Notably, the administration did not share these opinions with Congress, which unknowingly voted to outlaw techniques that the executive branch secretly determined were legal. The two opinions still remain in effect, sanctioning the use of harsh interrogation techniques against the untold number individuals who disappear into America's network of secret prisons.

Although Torturegate's full repercussions will not be known for years to come, its effects have already proven devastating. Torturegate has eroded confidence in the Justice Department and shattered the reputation of OLC, once widely respected for providing independent legal advice to presidents.

Torturegate has also undermined America's credibility. Gone is America's moral authority to advocate on the world stage for justice and human rights. Yes, other regimes may be more lawless and repressive but these differences are increasingly ones of degree. Virtually all governments seek to justify their actions in the name of the public good. The question is whether a nation's leaders exercise the self-restraint necessary to make their nation one of laws not of men.

If America is to regain what it has lost, it must act to repair the damage. Congress must make good on its demand that the administration produce the two secret 2005 OLC opinions, along with other prior legal opinions about interrogation techniques. It must also ensure the end of secret prisons, take additional steps to prohibit the CIA's use of torture techniques (such as by mandating the CIA follow the Army's interrogation manual), and restore habeas corpus. And steps must be taken to rebuild OLC's integrity.

Torturegate may have been the result of a small group of individuals bent on avoiding the rule of law. But, now that their work has been exposed, it is our collective responsibility to take corrective action.

*Cross-posted from The Huffington Post

Yesterday, the Senate Judiciary Committee voted 13-3 to authorize subpoenas focused on the Bush Administration's warrantless wiretapping program. Here is what the authorization read:

Be it resolved that, pursuant to its authority under Rules 25 and 26 of the Standing Rules of the Senate, the Senate Committee on the Judiciary hereby authorizes its Chairman, in consultation with the Ranking Member, to issue subpoenas to: 1) the Honorable Alberto Gonzales, Attorney General of the United States, and 2) the Custodian of Records at the Executive Office of the President, to provide the Committee with all documents related to the Committee's investigation into the Administration's operation of a warrantless domestic surveillance program outside of the provisions of the Foreign Intelligence Surveillance Act, and its legal analysis for this program.

That the vote did not break out along party lines -- Senators Specter, Hatch, and Grassley voted for the subpoenas -- is an indication of how troubling the emerging picture of shoddy lawyering and reckless uses of power that has gradually emerged through testimony from James Comey and others. But why are these documents so important? And what are the chances now that the subpoena will be honored? Will this indeed turn out to be a further step in building accountability over the secret, lawless electronic surveillance of Americans conducted since 9/11?

The background by now is familiar: In September 2001, the President authorized a program of warrantless domestic spying by the National Security Agency, or NSA. Only in December 2005 -- after a year of sitting on the story -- did the Times break that news. Now, two separate congressional investigations, conducted by the Judiciary and Intelligence Committees, are circling in on the facts not only about the NSA program itself--but also about the way it was adopted.

Yesterday's subpoena's focus on the latter issue -- "How did it happen?" -- and less on the "What happened?" question. At first glance, for example, it does not seem that the subpoena cover the issue of how the NSA is now conducting warrantless surveillance. The Administration has said, for example, that the program is now "under" the jurisdiction of the FISA court. But even experts are baffled by precisely what this means. The closed and secretive FISA court is supposed to hear only applications for individual warrants. The nub of the Administration's arguments, however, has always been individualized applications are too cumbersome. The best hypothesis I have seen is that the Administration has persuaded the FISA court to issue an open-ended anticipatory warrant -- which allows the Agency to act first and ask questions later. But we won't know whether the NSA is acting in ways that cast Americans' rights under a shadow even if these subpoenas succeed.

But the "what?" question is not the only one on the table: There is also the "how?" question. How did the NSA get legal authorization within the executive branch to conduct surveillance operations that are in flagrant violation of the 1978 Foreign Intelligence Surveillance Act? Why did the Justice Department in 2004 decide not to continue its endorsement of the program -- the decision that nearly precipitated a mass resignation of executive branch lawyers not seen since Watergate days and that led to the dramatic showdown between Justice Department lawyers and White House consigliores at John Ashcroft's hospital bedside? How exactly had the program been authorized before?

It is these questions -- which go to the integrity of the Government's decision-making process, and the question whether executive branch officials have acted in accordance with their constitutional obligation to "Take Care" that the laws will be enforced that, is now at issue.

Unfortunately, there are solid reasons to believe that the answer is "no." Perhaps the most telling resistance that the Administration has shown is disclosure of the legal opinions that have at various times animated the program. There are two sets of key documents -- and yesterday's subpoena clearly sweeps in both sets.

First, there are the legal opinions and documents on the basis of which the NSA's program was first authorized in 2001. There is a great deal of ambiguity about how precisely this initial authorization happened. But we do know that there must be some paper trail. In 2004, Justice Department lawyers led by Jack Goldsmith looked at some document or other, a document which provoked them into contacting then Acting Attorney General James Comey and persuading him to deny authorization for the program. Given that these were hardly liberal lawyers, the documents they reviewed must have been troubling -- so troubling that they were willing to risk terminating a program the President claimed was key to national security.

What exactly did these original authorizing documents say? We simply don't know. After the Times ran its revelatory story, the Justice Department issued a defense of the wiretapping program that relied in large part on a 2004 Supreme Court case -- so we know that wasn't the justification offered in 2001.

It is also important for us to see the documents prepared in 1004 (listed here in a handy chart prepared by the ever-marvelous Center Democracy and Technology). These documents will equally explain why the initial authority was so improbable that even conservative lawyers were prepared to shut down the program.

Will all of this come out?

Congress's power to issue subpoenas is now without question. Whether those subpoenas are obeyed is quite a different story.

As is the traditional practice, the committee will not issue subpoenas until it has entered negotiations with the White House, and Committee Chair Senator Patrick Leahy has rightly insisted that the committee is seeking "the legal justification and analysis," rather than "intimate operational details." Even when the subpoenas are issued, it is not wholly clear that the Committee will win access to every document. Generally, some compromise is reached. The danger now is that the compromise will leave out vital documents (especially those pertaining to the initial authorization) and also cut out the public.

The precedent is not good. In 1989, the Bush I Justice Department declined to release a legal opinion concerning the power of the FBI to seize suspects overseas without the permission of the country in question, and to bring the suspect back for trial in the United States. Then Attorney General William Barr insisted that the opinion "must remain confidential" even though an earlier memo -- which had concluded the practice was illegal -- had been released. At the end of the day, the compromise reached after subpoenas were issued was that some members of the committee would be allowed to review the memo on behalf of the whole committee -- but there would be no more public disclosure.

This will not do today. The rights of Americans are at stake. The question whether the President's lawyers trampled the Constitution for the sake of an idiosyncratic vision of executive power is at stake. There is simply no reason for legal opinions -- which do not contain "intimate operational details" -- should remain classified. This truly is a case where the public needs to know what has been done in their name, done to them, and done in spite of the laws they have enacted.

*Cross-posted from The Huffington Post

Yesterday, judges in the military commissions established by the 2006 Military Commissions Act at Guantánamo dismissed charges against two detainees charged with "war crimes" -- Omar Khadr and Salim Hamdan. According to the Times, the rulings, which were both on highly technical grounds, threw the commissions into "turmoil." In fact, the Government can circumvent the rulings relatively easily and without dealing with the many, deeply serious problems implicated by the military commissions -- and the whole question of Guantánamo.

Speed bumps are nothing new for President Bush's military commissions. The White House first issued rules for the commissions in November 2001, but trials didn't follow quickly. Detainees began arriving in Guantánamo only two months later. And the government did not move expeditiously to identify war criminals and to charge them. Lead defendant Salim Hamdan -- who was accused of being Osama bin Laden's driver -- was not even found eligible for trial by the President until July 2003, and was not even charged until July 2004. (Incidentally, in between these dates the military kept Hamdan into solitary confinement and so putting him under not-so-subtle pressure to cop a plea). Thanks to phenomenal lawyers, Hamdan fought the president's military commissions, and in June 2006 won: The Supreme Court, in the now landmark case of Hamdan v. Rumsfeld invalidated the commissions as beyond the President's authority.

The White House's response was swift and furious -- and took the form of the Military Commissions Act of September 2006, which reinstituted a system of "military commissions," or trial courts that are only for cases related to terrorism and that only operate at Guantánamo.

But even these new congressionally-authorized bodies have floundered. Proposing the new law, Bush proclaimed "The need for this legislation is urgent," but it wasn't for months before the first prosecutions were brought.

In the first case before the new commissions, Australian detainee David Hick entered a plea bargain. On the surface, this was a coup for the government because it could finally -- after more than five years -- proclaim a victory. But look more closely and the government's victory slips from view. Hicks was convicted of "material support" for terrorism (which, incidentally, is a federal crime first legislated in the early 1990s--it is not now and never has been a "war crime"). But Hicks' plea agreement stipulated a sentence of not more than nine months. By point of comparison, a person can be sentenced up to five years if they lie to a federal officer (a point to remember the next time you're bringing unpasturized French cheese through U.S. customs ....) -- and eight years if the lie has some connection to terrorism. Stated otherwise, Hicks got just more than a tenth of the sentence he could have received had he lied in the course of a counter-terrorism investigation.

Hicks entered his deal after five years' in Guantánamo, and after his military lawyer conducted a magnificently effective public relations campaign in the United States and Australia. Especially in Australia, the John Howard came under heavy fire for its failure to intervene in Hicks' case (see, for example here). And, rather conveniently, Hicks will be unable to speak to the press until well after the next Australian election. The Hicks sentence, in short, is little more than convenient cover for an international political embarrassment.

Yesterday's rulings are further evidence of how compromised the military commissions are. The ruling did not address the real and substantial concerns raised by the structure of the military commissions, or the summary bodies (called "combatant status review tribunals" or CSRTs) that declare individuals to be enemies of the nation. Rather, both rulings rested on a relatively minor, but telling, procedural point.

The point is worth describing in brief: A detainee is first classified as a properly detained by a CSRT. Only then can he be brought before a military commission. The Military Commissions Act (in 10 U.S.C. §948(c) for those of you want to follow along) says that any "alien unlawful enemy combatant" can be tried by a military commissions, and the statute (in 10 U.S.C. §948(a)) defines "unlawful enemy combatant." So far so good, right?

Well, no. The problem arises because the CSRTs function under a set of Defense Department Rules that long predate the Military Commissions Act. Those Defense Department rules do not use the term "unlawful enemy combatant." They talk about "enemy combatant" -- and they define this slightly differently from the terms used in the Military Commission Act (Professor Robert Chesney has an excellent and detailed explanation here).

What happened yesterday was that the military commissions noticed the mismatch between the CSRT definition and the military commissions definition -- and stopped the trial until the two defendants were properly re-classified.

The government now has a couple of options. It could do a new CSRT (although this would mean also issuing new CSRT rules). Or it could ask the commission itself to make a finding that the Khadr and Hamdan are "unlawful enemy combatants." The latter would get the trials back on track relatively quickly. Yesterday's events would end up being yet one more hiccup in the rough road that the military commissions have been traveled.

So what's the broader significance of yesterday's events? It's not so much that these developments will derail the commissions. Nor is it that the rulings yesterday address the larger, structural issues raised by the commissions. Khadr, for example, is being denied the counsel of his choice because they happen to be Canadian and not American. (A silly and arbitrary rule). Moreover, Khadr was only fifteen when he was seized. Under international law and the military's own rules -- enacted into law in the Uniform Code of Military Justice -- he cannot be held culpable for his acts. This sort of systemic problem won't be solved by this kind of technical glitches and slip-ups of the kind we saw yesterday. For that we need a broader remedy -- most importantly the restoration of habeas corpus and the reimposition of the rule of law on the "law-free zone" that is Guantánamo.