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Timothy Flanigan: The torture memo lawyer no one is mentioning
Muriel Kane
Published: Wednesday April 22, 2009


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The torture memos recently released by the Obama administration have focused interest on three of their authors: John Yoo, Jay Bybee, and Steven Bradbury. However, there's another lawyer involved in the creation of the torture memos whose name hasn't yet come into the discussion -- Timothy Flanigan.

Flanigan did not work for the Justice Department's Office of Legal Counsel like the others. He was a deputy to then-White House Counsel Alberto Gonzales in 2001-02, when he helped craft some of the earliest justifications for the use of waterboarding and other forms of torture

Flanigan's career is particularly intriguing because of the odd manner in which he left the White House at the end of 2002 and went to work as the general counsel for Tyco International, where he engaged in what appear to have been deeply corrupt dealings with Jack Abramoff. I wrote up much of that story here a couple of months ago.

It was primarily the relationship with Abramoff that scuttled Flanigan's nomination in 2005 to serve as Deputy Attorney General under Alberto Gonzales -- but some extremely embarrassing information about his rule in the torture memos was brought forward at that time as well, particularly in a July 2005 letter from the ACLU to the Senate Judiciary Committee.

The American Civil Liberties Union strongly urges you to oppose moving forward on the nomination of Timothy Flanigan to be Deputy Attorney General until the Justice Department takes two necessary steps: (i) publicly releases an August 2002 memorandum from the Justice Department to the Central Intelligence Agency that authorizes specific interrogation techniques, including waterboarding; and (ii) appoints an outside special counsel for the investigation and prosecution of criminal violations of federal laws against the torture or abuse of detainees. ...

If Flanigan is confirmed as Deputy Attorney General, the nation's top two law enforcement officials--Alberto Gonzales and Flanigan--will have had important roles in the development of policies that paved the way for the use of torture or abuse during interrogations at Guantanamo Bay and Abu Ghraib. As deputy to then-White House Counsel Gonzales, Flanigan reportedly was responsible for advising on the development of policies that: removed protections against torture and abuse, adopted a definition of ""torture"" that was later disavowed by the Administration, and resulted in an approved list of specific interrogation techniques for use by the CIA--reportedly including waterboarding. ...

Flanigan appears to have had a central role in advising on the development of interrogation policies that approved the use of torture and abuse. For example, the Washington Post reported on June 28, 2004 that, during the drafting of the August 1, 2002 memorandum from then-head of the Justice Department's Office of Legal Counsel Jay Bybee, Flanigan ""discussed a draft of the document with lawyers at the Office of Legal Counsel before it was finalized."" Similarly, a June 21, 2004 Newsweek article quotes Flanigan as explaining the interest of the CIA in obtaining legal advice on permissible interrogation techniques. The same article describes White House meetings chaired by then-White House Counsel Gonzales in which Administration lawyers ""found acceptable: 'water-boarding,' or dripping water into a wet cloth over a suspect's face, which can feel like drowning; and threatening to bring in more-brutal interrogators from other nations.""


That August 1, 2002 memo from Jay Bybee is among the four that were released last week, and it has led to calls for Bybee's resignation from his current position as a federal judge. However, Flanigan was no less deeply implicated -- and his involvement points a finger directly at the White House.

It may also be significant that Flanigan was nominated for the deputy attorney general position on May 24, 2005. The three later torture memos among those just released were dated May 10 and May 30 of that year.

Torture was not the only area in which Flanigan worked with Gonzalez to provide legal rationales for controversial Bush administration policies. The New York Times reported on September 23, 2002:

Alberto R. Gonzales, the White House counsel, says that his office began drafting the administration's use-of-force resolution to authorize action against Saddam Hussein over the summer, well before President Bush announced early this month that he wanted such approval from Congress before making war on Iraq. ...

That decision -- and Mr. Gonzales's secretive late-summer schedule -- reflects the complicated and powerful new role of the White House counsel's office, which since Sept. 11 has become Legal Central in the administration's campaign against terrorism.

The small second-floor spaces occupied in the West Wing by Mr. Gonzales and his deputy, Timothy Flanigan, are in effect the Bush administration's war counsel offices, the place where national security and military law are sorted out among the White House, the Justice Department and the Pentagon. ...

Typically, a White House counsel provides ethics advice to the president, reviews pardons and bills and researches the background of federal appointees. But since the attacks on the World Trade Center and the Pentagon, Mr. Gonzales' office has not only written the use-of-force resolution but drafted the president's order creating military tribunals. It was his office that conceived of the term ''enemy combatant'' as a way to indefinitely detain American citizens accused of terrorism, to enormous criticism from civil libertarians, public defenders and some constitutional scholars.


Clearly the Bush administration's creation of a policy of torture and indefinite detention was not merely delegated to over-zealous young lawyers in the Justice Department. Its primary overseers were Alberto Gonzales and Timothy Flanigan, and its headquarters was a small office on the second floor of the West Wing.


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