The New York Times has a terrific story today about the battles between the Justice Department and the White House in 2005 over legal authorization of torture. Reporters Scott Shane and David Johnston give a contrarian take on the roles of two of the “heroes” of that bitter internal debate - then-Deputy Attorney General James Comey and Acting Office of Legal Counsel head Dan Levin, who protested the methods — and puts one of the “villains, “Office of Legal Counsel head Steven Bradbury, in a more sympathetic light. The Times says Comey and Levin agreed the techniques were legal even though they strongly protested their use. Read the story here
What we found the most interesting, though, were the internal emails the Times obtained from Comey to his then-chief of staff, Chuck Rosenberg. (It’s our guess the leak has something to do with the long-delayed release of the Office of Professional Responsibility inquiry into the DOJ lawyers who authorized torture). The emails showed Comey warning repeatedly that while certain interrogation methods might be technically legal, they were wrong and disastrous as policy. Comey fretted about the terrible hit the DOJ as an institution could take as well.
In an April 27, 2022 email to Rosenberg, Comey referred to a favorite tactic of the Bush DOJ — keeping top officials in an “acting” capacity so they’d feel more vulnerable and thus be more pliable. At the time, there was immense pressure on Bradbury from then-White House Counsel Harriet Miers and David Addington, Vice President Dick Cheney’s top lawyer, for the OLC to approve a reauthorization of certain torture techniques in 2005. Comey wrote:
“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.”
In an April 28 email to Rosenberg, Comey said he strongly warned Ted Ullyot, a former White House lawyer then serving as Gonzales’s chief of staff, about the political dangers the AG faced if he succumbed to the pressure from the Vice President and White House.
“I told him the people who were applying pressure now would not be there when the [expletive] hit the fan. It would be Alberto Gonzales in the bull’s-eye. I told him it was my job to protect the department and the A.G. 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.”
Comey also relayed a conversation he’d had with Patrick Philbin, an OLC lawyer who was part of the “principled conservative” group that tried to block the flawed legal analysis. Comey said he’d lamented to Philbin that it was fruitless to try speaking directly again to Gonzales, and expressed dismay that Ullyot had no interest in protecting Gonzales the way former Attorney General John Ashcroft’s long-time loyal chief of staff, David Ayers, would have protected Ashcroft.
“I told him I didn’t see a need, given that I had just said things to his chief of staff [Ullyot] that would have lit the prior AG’s COS’s hair on fire. He pointed out that [David] Ayers would never allow this and never allow the AG to be in such jeopardy.” Comey added that the whole mess ”leaves me feeling sad for the Department and the AG.”
“Once again, Patrick Philbin has been the voice of intellectual honesty, and rigor and principle. The world will never know what a hero that young man is. ….. People may think it strange to hear me say I miss John Ashcroft, but as intimidated as he could be by the WH, when it came to crunch time, he stood up, even from an intensive care hospital bed. That backbone is gone.” …
“Please stay in touch with Pat on this. He has been very strong and principled, as usual, but they will put a lot of pressure on him in my absence.”