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Bush Torture Defender Rivkin is the Force Behind Boehner's Obama Lawsuit

July 10, 2014

In his recent CNN op-ed, House Speaker John Boehner explained "why we must now sue President Obama." As it turns out, the legal mastermind behind the House GOP's lawsuit "to compel President Obama to follow his oath of office and faithfully execute the laws of our country" is David Rivkin. Arguing that "Obama's legal end-run around Congress" has caused genuine "institutional injury" through "nullification of legislative power," Rivkin is hoping to overcome the steep hurdles to Congress' standing to sue the executive branch.
If that name sounds familiar, it should. It was Rivkin who helped push the ultimately failed effort to have the Obamacare insurance mandate declared unconstitutional. And when Republican George W. Bush sat in the Oval Office, it was David Rivkin who insisted the President could ignore Congress and international law alike by electronically spying on Americans without warrants and subjecting terrorism detainees to torture.
In December 2005, the American people learned about NSA's program of warrantless domestic surveillance carried out in obvious violation of the Foreign Intelligence Surveillance Act (FISA) first passed in 1978 to govern such activities. In 2007, some of the administration's previously illicit practices were codified in revisions to the FISA law. But in early 2006, Rivkin echoed the line of the Bush White House that the 2001 Authorization for the Use of Military Force (AUMF) and the President's "inherent authority" as Commander-in-Chief made the FISA law irrelevant:

Although enhanced congressional oversight of the NSA program may well be constitutionally permissible and even sensible as a policy matter, the requirement of a warrant for this type of surveillance would trench upon the president's constitutional power as commander in chief to monitor enemy communications in wartime. Far from being a "pervasive" domestic spying program, the NSA has simply intercepted the communications of al Qaeda operatives into, or out of, the U.S. As described by former NSA director, Gen. Michael V. Hayden, communications entirely within the U.S. are not targeted, and only those international communications involving al Qaeda on one end are collected and analyzed. All else is speculation (or wishful thinking) by the administration's political opponents.

As the revelations from Edward Snowden confirmed, the fears about the Bush domestic surveillance programs were neither speculation nor wishful thinking, but the tip of the iceberg. As it turned out, the government wasn't merely warehousing the electronic communications it was collecting in bulk. Just this week, we learned that the NSA and the FBI monitored the emails of several prominent Muslim-Americans from 2002 to 2008.
But the ferocity of Rivkin's continued defense of the NSA programs pales in comparison to his cheerleading of President Bush's "enhanced interrogation techniques" carried out in violation of the Geneva Conventions and the UN Convention on Torture signed by President Ronald Reagan in 1988.
In its June 2008 ruling in the Hamdan case, the United States Supreme Court declared that terror detainees held at Guantanamo Bay could appeal their detentions. To David Rivkin, the Court's decision was the worst thing since slavery and Jim Crow:

But to be honest, and not to be too dramatic, it's one of the worst decisions by the Supreme Court I've ever read, on par with Dred Scott decisions and Plessy v. Ferguson.

In Rivkin's view, Gitmo detainees not only didn't have habeas corpus rights; they essentially had no protections at all.
When in 2009 the Obama administration released four controversial Bush torture memos authored by Steven Bradbury, Rivkin took to the pages of the Wall Street Journal to claim "The Memos Prove We Didn't Torture." Of course, Bradbury himself not only questioned whether waterboarding and other techniques even worked ("It is difficult to quantify with confidence and precision the effectiveness of the program"), he specifically rebuked the Bush administration for depending on a military training program, Survival, Evasion, Resistance, Escape, (SERE) to assess the risks that a suspected terrorist might face when being waterboarded. As McClatchy reported:

"Individuals undergoing SERE training are obviously in a very different situation from detainees undergoing interrogation; SERE trainees know it is part of a training program," Bradbury wrote, borrowing from the IG report's conclusion.

Nevertheless, Rivkin argued that:

All of these interrogation methods have been adapted from the U.S. military's own Survival Evasion Resistance Escape (or SERE) training program, and have been used for years on thousands of American service members with the full knowledge of Congress. This has created a large body of information about the effect of these techniques, on which the CIA was able to draw in assessing the likely impact on the detainees and ensuring that no severe pain or long term psychological impact would result.

Rivkin's Bizarro World conclusion?

Far from "green lighting" torture -- or cruel, inhuman or degrading treatment of detainees -- the memos detail the actual techniques used and the many measures taken to ensure that interrogations did not cause severe pain or degradation.

To make that claim, David Rivkin would have to pretend that white is black and up is down. And when President Bush and Vice President Cheney boasted about their use of waterboarding, they were also confirming their refusal to faithfully execute the laws and treaties passed by Congress.
But apparently, that was different for John Boehner and David Rivkin. Because now, a Democrat is President.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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