NY Times uncritically quoted Cheney saying Bush administration detention policies were "done legally"

In a March 15 New York Times article, reporter A.G. Sulzberger quoted without challenge former Vice President Dick Cheney's assertion in an interview on CNN's State of the Union that the Bush administration's policies on detentions and intelligence gathering were "done legally" and "in accordance with our constitutional practices and principles." Sulzberger did not note that the Supreme Court has repeatedly rejected Bush administration policies regarding detentions, that the Justice Department has withdrawn Bush administration memoranda authorizing interrogation practices, and that, according to a New York Review of Books piece -- parts of which were adapted for a March 14 Times op-ed -- the International Committee of the Red Cross (ICRC) has determined that interrogation practices used during President Bush's tenure in office amounted to torture.

Sulzberger reported: "Since taking office, Mr. Obama has reversed many of the policies championed by Mr. Cheney in his eight years of serving under President George W. Bush. Mr. Obama has announced plans to close the detention camp in Guantánamo Bay, Cuba, within the year, suspended military trials for terrorism suspects and prohibited the interrogation practice known as waterboarding." Sulzberger continued:

But on Sunday, Mr. Cheney said those very policies had produced intelligence -- still classified -- that helped uncover specific plots.

"I think those programs were absolutely essential to the success we enjoyed of being able to collect the intelligence that let us defeat all further attempts to launch attacks against the United States since 9/11," Mr. Cheney said of Bush administration policies, echoing statements he made in an interview last month with the Web site Politico.com.

"I think that's a great success story," he said. "It was done legally. It was done in accordance with our constitutional practices and principles."

However, in the 2004 case Rasul v. Bush, the Supreme Court rejected the Bush administration's argument that, under the law as it existed at the time, Bush could order people to be detained at Guantánamo Bay without the ability to challenge the terms of their detention in federal court. The Court's majority opinion stated that the detainees who brought the case alleged that "although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing -- unquestionably." The petitioners filed habeas corpus petitions seeking to challenge the terms of their detention in federal court. The Court rejected the Bush administration's argument that the courts did not have jurisdiction over the habeas corpus petitioners, holding that "the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing."

Subsequently, in the 2006 case of Hamdan v. Rumsfeld, the Supreme Court struck down the Bush administration's procedures for trying Salim Ahmed Hamdan, a Yemeni national, by military commission. The majority opinion stated that "the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ [Uniform Code of Military Justice] and the Geneva Conventions."

In 2008, the Supreme Court again reversed administration policies regarding Guantánamo Bay detainees in Boumediene v. Bush. The Court held that the procedures set up by the Bush administration under the Detainee Treatment Act of 2005 to review Guantánamo detainees' status "are not an adequate and effective substitute for habeas corpus." The Court therefore rejected the Bush administration's argument that the habeas corpus petitions should be dismissed.

During the interview on CNN, host John King also referred specifically to Obama's "eliminat[ing] the label of enemy combatants." In 2004, in Hamdi v. Rumsfeld, eight justices stated that that the Bush administration's policy of holding an American citizen, Yaser Hamdi, on American soil as an "enemy combatant" without a "meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker" violated the law. In a plurality opinion for four justices, Justice Sandra Day O'Connor wrote:

At this difficult time in our Nation's history, we are called upon to consider the legality of the Government's detention of a United States citizen on United States soil as an "enemy combatant" and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

Two other justices, David Souter and Ruth Bader Ginsburg, also rejected the limitations on habeas corpus that the Bush administration urged. And Justices Antonin Scalia and John Paul Stevens also stated that the Bush administration's detention policy as applied to Hamdi was unauthorized by law.

Moreover, Sulzberger did not mention that Bush Justice Department officials withdrew memoranda written in 2001 and 2002 that provided the legal basis for enhanced interrogation techniques. As Media Matters for America has noted, the Justice Department's Office of Legal Counsel (OLC) issued memos in August 2002 and March 2003 that concluded the president has broad powers to authorize "rough" interrogation of terrorists. Subsequently, Jack Goldsmith, who served as the head of OLC from 2003 to 2004, withdrew those memos. Goldsmith wrote in his book The Terror Presidency that "OLC's analysis of the law of torture in the August 1, 2002, opinion and the March 2003 opinion was legally flawed, tendentious in substance and tone, and overbroad and thus largely unnecessary" [Page 151]. He also called the broad conclusion of the August 2002 memo that "[a]ny effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President" "an extreme conclusion [that] has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law" [Page 148].

In a January 15 "Memorandum For The Files" regarding the "Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001," then-principal deputy assistant Attorney General Steven Bradbury wrote:

A number of OLC opinions issued in 2002-2003 advanced a broad assertion of the President's Commander in Chief power that would deny Congress any role in regulating the detention, interrogation, prosecution, and transfer of enemy combatants captured in the global War on Terror. The President certainly has significant constitutional powers in this area, but the assertion in these opinions that Congress has no authority under the Constitution to address these matters by statute does not reflect the current views of OLC and has been overtaken by subsequent decisions of the Supreme Court and by legislation passed by Congress and supported by the President.

Further, in a piece for the upcoming April 9 edition of The New York Review of Books, journalism professor Mark Danner reported that an ICRC "Report on the Treatment of Fourteen 'High Value Detainees' in CIA Custody" concluded that, in many cases, detainees held during the Bush administration were subject to "torture." Danner quoted the "conclusion" of the ICRC's report as saying:

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.

A March 16 Washington Post article about the ICRC report similarly stated:

The International Committee of the Red Cross concluded in a secret report that the Bush administration's treatment of al-Qaeda captives "constituted torture," a finding that strongly implied that CIA interrogation methods violated international law, according to newly published excerpts from the long-concealed 2007 document.

From the Times article, headlined "Cheney Says Obama Has Increased Risks":

Former Vice President Dick Cheney said Sunday that President Obama had made the country less safe, asserting that the new administration's changes to detention and interrogation programs for terrorism suspects would hamper intelligence gathering.

Mr. Cheney said the moves suggested that terrorism was now being treated as a law enforcement problem.

"He is making some choices that, in my mind, will, in fact, raise the risk to the American people of another attack," Mr. Cheney said of Mr. Obama in an interview on the CNN program "State of the Union."

Since taking office, Mr. Obama has reversed many of the policies championed by Mr. Cheney in his eight years of serving under President George W. Bush. Mr. Obama has announced plans to close the detention camp in Guantánamo Bay, Cuba, within the year, suspended military trials for terrorism suspects and prohibited the interrogation practice known as waterboarding.

But on Sunday, Mr. Cheney said those very policies had produced intelligence -- still classified -- that helped uncover specific plots.

"I think those programs were absolutely essential to the success we enjoyed of being able to collect the intelligence that let us defeat all further attempts to launch attacks against the United States since 9/11," Mr. Cheney said of Bush administration policies, echoing statements he made in an interview last month with the Web site Politico.com.

"I think that's a great success story," he said. "It was done legally. It was done in accordance with our constitutional practices and principles."

Mr. Cheney said the Bush administration decided after the 2001 attacks to make fighting terrorism a function of the military rather than law enforcement.