Make sure the client never sees the caveats

Let’s start with the structure of the memo: note to whom it is addressed?

Nobody.

Rather, this is a Memorandum for the Files. It serves as a document internal to OLC, rather than a document explaining factual assumptions, legal reasoning, and specific limits to the client. So how does the client know the result of the memo? The first paragraph of this memo explains,

The Department of Defense (“DOD”) has asked us to review for form and legality the revised drafts of the Army Field Manual 2-22.3 (“Human Intelligence Collector Operations”), Appendix M of FM 2-22.3 (“Restricted Interrogations Techniques”), and the Policy Directive regarding DOD’s Detainee Program. By letter sent today to the General Counsel of DOD, we advised that these documents are consistent with the requirements of law, in particular with the requirements of the Detainee Treatment Act of 2005 [citation removed]. This memorandum explains that conclusion.

In other words, Bradbury did tell Jim Haynes the result of his review: that the Appendix passed legal muster. But it appears that Bradbury did not send this memo (the memo was finalized after the letter had already been sent). Indeed, Bradbury suggests that he did little more than send a letter saying, “The new Army Field Manual, Appendix M, and the associated Directive are legal under the Detainee Treatment Act.”

Love, Stevie, kthxby.

Now, Bradbury does put limits on his judgment that Appendix M was legal. He spends what appears to be six paragraphs describing the techniques he says were part of Appendix M. Those paragraphs place limits on the techniques (for example, they prohibit an interrogator from leading a detainee to believe the interrogator was a member of the Red Cross). He references restrictive language in specific paragraphs of the AFM itself. He includes assumptions about whom DOD would use these techniques with.

But if DOD never saw this memo–and there’s no indication they did–then his approval would be utterly divorced from any of the restrictions he had placed on that approval.

Approve a document and then make changes to it

Speaking of all those references to specific paragraphs of Appendix M, note that Bradbury wrote this memo on April 13, 2006. Appendix M was not finalized and released until September 6, 2006. And the contents of Appendix M changed significantly between the time Bradbury wrote his approval letter and the time the Appendix was put into effect five months latter. (See this article from Jeff for a review of the debates in the interim period.) Even the title changed–from the plural “Restricted Interrogation Techniques” to the singular “Restricted Interrogation Technique–Separation” (what they basically did in the interim was lump all six techniques into one, as I’ll explain below).

A comparison of the paragraphs Bradbury cites with what the Appendix now says shows why this is important.

• Bradbury cites paragraph M-3 for his definition of “unlawful enemy combatants” saying “persons not entitled to combatant immunity, who engaged in acts against the United States or its coalition partners in violation of the laws and customs of war during an armed conflict.” But M-3 now addresses a completely different issue–the distinction between separation and segregation. The current Appendix does have a related caveat, though the wording is different:

Separation will only be used during the interrogation of specific unlawful enemy combatants for whom proper approvals have been granted in accordance with this appendix. However, separation may not be employed on detainees covered by Geneva Convention Relative to the Treatment of Prisoners of War (GPW), primarily enemy prisoners of war (EPWs).

• Bradbury cites M-6 for the caveat that the detainee in question must be believed to have important intelligence (his emphasis) and the requirement for “special approval, judicious execution, special control measures, and rigorous oversight”; that language is now in M-5.
• Bradbury cites M-15 for the requirement that a General Office/Flag Officer approve each interrogation plan; that now appears in M-7, and the language appears to be slightly different.
• Bradbury cites M-23 for language limiting the use of Appendix M only to DOD interrogators specially trained and certified to use these techniques; that language now appears in M-22, but the paragraph now authorizes properly trained contract interrogators and “non-DOD personnel” to use the techniques as well.
• Bradbury cites M-21 for medical limits, including that “Detainees determined to be unfit for interrogation may not be interrogated” (note, this does not appear to be a direct citation from the appendix, but rather Bradbury’s summary of it); in the current Appendix, language on medical oversight appears in several places (M-16, M-20, M-23, M-24, M-30), but never includes an explicit restriction against using the techniques on an unfit detainee:

Medical personnel will be available to respond in the event a medical emergency occurs.

[snip]

Commanders are responsible to ensure that detainees undergoing separation during interrogation receive adequate health care as described in greater detail in paragraph 5-91.

[snip]

A provision for detainees to be checked periodically in accordance with command health care directives, guidance, and SOPs applicable to all detainees.

[snip]

Planning must consider the possible cumulative effect of using multiple techniques and take into account the age, sex, and health of detainees, as appropriate.

[snip, emphasis original]

Medical: Detainees will be checked periodically in accordance with command health care directives, guidance, and SOPs applicable to all detainees.

Repackage 6 specific techniques into one Orwellian named technique

But by far the biggest change in Appendix M between the time Bradbury said it was legal and the time it was published was the replacement of 6 specific techniques–Mutt and Jeff, False Flag,  Separation (Isolation), and three techniques on changes in environment (probably different location, change in existing location–as with heat or odor or noise, and change in sleep)–to one absolutely vague technique, separation, that incorporates those, but does so without actually describing them at all (much less limiting them in any meaningful way). The best hint of what “Separation” entails comes from the list of cautions presented in appalling passive language:

• Use of hoods (sacks) over the head, or of duct tape or adhesive tape over the eyes, as a separation method is prohibited.
• If separation has been approved, and the interrogator subsequently determines that there may be a problem, the interrogator should seek further guidance through the chain of command before applying the technique.
• Care should be taken to protect the detainee from exposure (in accordance with all appropriate standards addressing excessive or inadequate environmental conditions) to—

− Excessive noise.

− Excessive dampness.

− Excessive or inadequate heat, light, or ventilation.

− Inadequate bedding and blankets.

− Interrogation activity leadership will periodically monitor the application of this technique.

• Use of separation must not preclude the detainee getting four hours of continuous sleep every 24 hours.
• Oversight should account for moving a detainee from one environment to another (thus a different location) or arrangements to modify the environment within the same location in accordance with the approved interrogation plan.

In other words, it’s clear this Appendix envisions sensory deprivation (just without hoods or duct tape or excessively loud noise), temperature exposure, sleep deprivation, and isolation itself. But it never actually specifies what it means by those things.

And there’s one more indication that these techniques changed in some significant way between the time Bradbury “approved” them and the time they were published. Note that the Mutt and Jeff description includes about five lines redacted. Those are exempted from FOIA under exemption (b)(2), which is kind of bizarre in any case, because it refers to internal personnel rules, but in any case seems to refer to something that exists in some tangible bureaucratic form. But the exemption invoked to redact the entire discussion of what Bradbury refers to “Adjustment” and “Separation” techniques is (b)(5)–material that falls under some formal privilege, such as attorney-client or deliberative. It seems likely, then, that OLC and DOD redacted those sections under a deliberative privilege because the practices described in the redacted sections have changed since that time.

Approve any changes in the future

And if all that is not already outrageous enough, the Appendix itself is designed to be updated regularly.

Will be reviewed annually and may be amended or updated from time to time to account for changes in doctrine, policy, or law, and to address lessons learned.

Yet, with Bradbury having already written a letter–divorced from any condition or detail–approving the Appendix, DOD can throw whatever they want in Appendix M in the future and they’d still have their DOJ seal of approval.

Now, we know that Appendix M is still in effect. It is unclear whether Bradbury’s approval for it remains in effect (the memo is not included among those David Barron has explicitly withdrawn). But if it is, it basically serves to make Appendix M a privileged space into which DOD can put anything and have it carry DOJ sanction.

Tags: Appendix M, Army Field Manual, Jim Haynes, Steven Bradbury

As I’ve shown (here and here), in March 2004, DOD requested approval to use–at the least–extended isolation with detainees. In response, Jack Goldsmith and Steven Bradbury started trying to replace the 2003 Yoo memo.

At precisely the same time, Goldsmith was working through the mess created by the Legal Principles document. As you recall, faced with clearly illegal conduct and with the opportunity to investigate that conduct themselves in 2003, CIA worked back channel with Jennifer Koester and John Yoo to summarize the legal advice given on torture, going so far as to claim certain techniques (like abdominal slap and diapers) had been approved when they hadn’t been. During that period, Koester and Yoo gave CIA an opportunity to review and provide input on the 2003 Yoo memo. Then, Koester and Yoo relied on the Yoo memo for several of the claims they made in the Legal Principles. That raises the possibility that one reason the Yoo memo was so bad (it was even more permissive than the Bybee One memo) was to help CIA avoid criminal liability for crimes already committed.

At the very least, this is proof that CIA and DOD were both relying on advice given to the other agency to justify their own agency’s actions. We know DOD used the Bybee memos (and oral authorization from Yoo based on that analysis) to authorize its treatment of Mohammed al-Qahtani in 2002-2003. And the Legal Principles show CIA was using the Yoo memo, written for DOD, to authorize its treatment of multiple detainees in anticipation of the CIA IG Report. In other words, though DOJ liked to maintain the fiction that the approval tracks for CIA and DOD were separate, they weren’t, at least not when John Yoo was involved.

And that was becoming crystal clear in spring of 2004. (In the same phone conversation in which Goldsmith confirmed that the Legal Principles weren’t an official OLC document, he also asked Yoo for details of his verbal authorizations to Jim Haynes leading up to the al-Qahtani torture, so he clearly pursued these issues in tandem.)

Yet after that, CIA’s memos got withdrawn and replaced. DOD’s Yoo memo reportedly was withdrawn. But no formal guidance from OLC ever replaced it.

So what happened after that point?

The Daniel Levin Memo

My concerns about DOD’s later authorizations stem partly from a memo Daniel Levin wrote John Ashcroft and Jim Comey in September 2004 to summarize all the advice OLC had given on torture. It shows the state of affairs as it existed in September 2004–the way in which DOJ was transitioning from authorizations based on Yoo’s crappy memos to more arguably defensible authorizations. I wrote a detailed post on Levin’s memo here, but here’s how Levin described that state of affairs (the following is my summary of his summary, except in one direct quote from his DOD section).

A. GENERAL ADVICE

1. Previously Given: Bybee One memo

2. Current/Pending: This is redacted, but must describe what became Levin’s own December 30, 2004 memo that replaced Bybee One.

B. CIA ADVICE

1. Previously Given: Bybee Two memo

2. Current/Pending:

a. Ashcroft’s July 22, 2004 letter reauthorizing 9 techniques from Bybee Two

b. Four letters pertaining to three individual detainees: An August 6 letter authorizing waterboarding for use with one detainee and an August 26 letter adding four new techniques, including water dousing, for use with that same detainee; a September 6 letter authorizing 12 total techniques including water dousing but not waterboarding; and a September 20 letter authorizing those same 12 techniques with a third detainee.

c. This is redacted but must describe the memo that would become the May 10, 2005 Techniques memo, and possibly also the May 10, 2005 Combined memo.

d. Mostly redacted, but this bullet describes the May 30, 2005 CAT memo.

C. DOD ADVICE

1. Previously given

a. Yoo memo

b.Levin described OLC approval of 24 DOD techniques this way:

In addition, we approved 24 specific techniques the use of which the Secretary of Defense approved. Although it is not entirely clear to me when that was done it was reaffirmed, for example, in a July 7, 2004 letter from Jack Goldsmith to Scott Muller (referring to approval of both CIA and DOD techniques) and also in a July 17, 2004 fax by Jack [Goldsmith].

2. Current/Pending; [entirely redacted]

The general and the CIA approval is everything we’d expect to see, with the possibly interesting detail that in September 2004, Daniel Levin (who drafted most of the Techniques memo but who was ousted before Bradbury wrote the Combined memo) saw just one memo to be forthcoming addressing individual torture techniques.

But Levin’s understanding of DOD’s approval is interesting for two reasons. First, he confesses that he has no idea how and when OLC approved the 24 DOD techniques (these were techniques Rummy approved in April 2003), only that somewhere along the way Goldsmith sanctioned them (this accords with what we know, but it also means OLC conducted no independent review of them; this is further important because it’s where some things–like isolation–got approved). And, Levin believes as of September 2004 that OLC is actively working on a memo for DOD analyzing individual torture techniques, one which, according to the OPR Report, was never completed.

There’s one more notable detail. Levin references the July 7, 2004 Goldsmith letter to CIA authorizing the 24 techniques. But he also references a July 17, 2004 fax also authorizing the 24 techniques. We’ve seen the former, but not (to the best of my knowledge) the latter. And that July 17 fax was written on Goldsmith’s last day at OLC, after having moved up his last day from August 6 to July 17 for some reason.

The OPR Report

Which brings me to what the OPR Report says about DOD Authorization.

As I said before, it reports that in April, Goldsmith started working on a replacement for the Yoo memo with Steven Bradbury.

Sometime in April 2004, Goldsmith began working on a replacement draft for the Yoo Memo, assisted by then Principal Deputy AAG Steve Bradbury and several OLC line attorneys. [this statement is followed by a redacted paragraph, suggesting something about the replacement remains highly sensitive]

After a discussion of the Legal Principles/Bullet Points controversy (which I mentioned above) the OPR Report returns to a discussion about the drafting of the replacement for the Yoo memo.

The first draft of the replacement memorandum was produced in mid-May 2004, and at least 14 additional drafts followed, with the last one dated July 17, 2004. Beginning with the sixth draft, dated June 15, 2004, specific criticisms of the Yoo Memo were discussed in footnotes. Although the criticism was removed from later drafts, Goldsmith told OPR that it was not removed because of any doubts about its accuracy. Rather, Goldsmith ultimately concluded that it was unnecessary to specifically address the errors.

A couple of notes about this timing. Goldsmith told Jim Haynes not to rely on the Yoo memo in December 2003. But he didn’t start his efforts on replacing the Yoo memo until after DOD asked to use–at a minimum–extended isolation in March 2004 (and after DOD, but according to the Terror Presidency, not Goldsmith, knew about Abu Ghraib). The first draft was not completed until after the Abu Ghraib scandal had broken (remember that Goldsmith was very busy trying to salvage Cheney’s illegal wiretap program between March 10 and May 6, 2004). Then, after writing six drafts between the time he started this process and mid-June, he started attacking the Yoo memo directly.

Significantly, the very day Goldsmith told Ashcroft he would withdraw the Bybee One memo, he also had Bradbury put this into a footnote on the first page of a draft memo purportedly replacing the Yoo memo:

The Yoo Memo “is flawed in so many important respects that it must be withdrawn.” June 15, 2004 draft at 1, n.l.

This language speaks of withdrawing the memo as something that had yet to be done, suggesting that the Yoo Memo was not, in fact, operationally withdrawn yet in June 2004. Goldsmith was still making the case to do so in the footnotes of its replacement! More importantly, he started making the case in those footnotes on the same day he finally decided to withdraw the Bybee One memo. That’s not an accident. As Goldsmith admits in Torture Presidency, he ultimately withdrew the Bybee One memo because of his thinking on the Yoo memo.

In the end I withdrew the August 2002 opinion even though I had not yet been able to prepare a replacement. I simply could not defend the opinion. I had rejected its reasoning in the March 2003 opinion, and I knew that the August 2002 opinion would eventually suffer the same fate.

In addition to the footnote above, the OPR includes several others dated June 15 that could also be applied directly to the Bybee One memo, notably those addressing Commander-in-Chief power and possible defenses.

In other words, what Jack Goldsmith did with his footnotes on June 15 was withdraw the Get Out of Jail Free Card from both DOD and CIA at the same time. And the next day, he tendered his resignation, to go into effect on August 6.

The OPR Report is very opaque about how this process related to Goldsmith’s departure and why he left three weeks early. The Report includes the following details peppered throughout the discussion of the withdrawal of the Yoo and the Bybee One memos.

Goldsmith left the Justice Department on July 17, 2004, before he was able to finalize a replacement for the Yoo Memo. On July 14, 2004, then Associate Deputy AG Patrick Philbin testified before the House Permanent Select Committee on Intelligence as to the legality of the 24 interrogation methods that had been approved for use by the Defense Department. Sometime thereafter, the Defense Department reportedly informed OLC that it no longer needed a replacement for the Yoo Memo.

[snip]

Shortly after the Bybee Memo was leaked, Goldsmith was asked by the White House if he could reaffirm the legal advice contained in the Bybee Memo. Because the analysis in that document was essentially the same as the Yoo Memo, which he had already withdrawn, Goldsmith concluded that he could not affirm the Bybee Memo. He consulted with Comey and Philbin, who agreed with his decision, and on June 15, 2004, Goldsmith informed Attorney General Ashcroft that he had concluded that the Department should withdraw the Bybee Memo. Although Ashcroft was “not happy about it,” according to Goldsmith, he supported the decision. The following day, June 16, 2004, Goldsmith submitted a letter of resignation to become effective August 6, 2004.

[snip]

Goldsmith was determined to complete his replacement for the Yoo Memo before he left the Department, and he also assigned an OLC line attorney to prepare a replacement for the Bybee Memo.93 At some point during the summer,
however, it became apparent that the Yoo Memo could not be replaced by August, and Goldsmith decided to advance his departure date to July 17, 2004. [Note, this last passage is followed by a long redaction.]

93 Several replacement drafts for the Bybee Memo were prepared under Goldsmith’s direction, the last of which was dated July 16, 2004.

So the story is that at some point Goldsmith decided he couldn’t finish the Yoo memo–at least not by August–and so he just left.

And while Levin seems to have believed two months later that it was still in the works, the OPR Report says “sometime thereafter [after July 17], the Defense Department reportedly informed OLC that it no longer needed a replacement for the Yoo Memo.” There’s a lot that stinks about that statement: the term “reportedly,” which suggests that OPR saw no documentation about that decision, the vagueness regarding the timing, and the apparent disinterest in explaining why DOD would no longer need the memo after it had been deemed so important in earlier periods.

Now, the OPR Report, at least, appears to believe the 24 techniques originally approved by Rummy was what governed DOD interrogations after the withdrawal of the Yoo memo (suggesting that DOD was satisfied with those 24 techniques). It mentions Philbin’s statement to HPSCI on July 14, as if that were definitive. Though Levin’s comment–noting that he has no idea when and how OLC authorized those techniques–suggests some doubt.

I’m particularly intrigued, though, by Levin’s mention of a July 17 Goldsmith fax reiterating approval of the 24 techniques.

One explanation for that fax is that it was actually draft number 14 reported in the OPR Report–that that reiteration of approval for the 24 techniques was a draft OLC memo. That would be significant because it would suggest that Goldsmith was combining the general authorization for DOD torture with specific techniques.  He may have tried to do that. The OPR Report describes his confusion as to why Bybee One and Two were dated with the same date, suggesting he thought a generalized memo distinct from a specific one might be particularly dangerous. If so, would that suggest that one reason Goldsmith realized he couldn’t finish Yoo replacement before August might be because someone objected to including actual techniques in the more generalized authorization?

Then again, it’s possible that Goldsmith just sent a fax on his way out the door in an attempt to make sure DOD stuck to the limits of the 24 techniques. Significantly, the problem that both Goldsmith and Philbin had with the Yoo memo was that it would serve as a blank check for new torture techniques. Goldsmith even complained that Philbin had given an oral caution–but no written one–that DOD should stick to the 24 techniques in 2003, when Yoo issued the DOD memo.

The broad nature of the memorandum’s legal advice troubled [Goldsmith] because it could have been used to justify many additional interrogation techniques.. As he later explained in an email to other OLC attorneys, he saw the Yoo Memo as a “blank check” to create new interrogation procedures without further DOJ review or approval.

Philbin responded to that email as follows:

John’s March memorandum was not a blank check at least as of the time [Jennifer Koester] started work at DoD OGC (Summer 2003) because I told her to make sure they did not go beyond the Rumsfeld approved procedures and did not rely on the memo. This was only an oral caution but please do not sell us short by ignoring it.

Goldsmith answered as follows: “I’m not selling anyone short – It’s just that Haynes said he heard nothing about that advice.”

Goldsmith’s memorialization that the 24 techniques (but presumably only the 24 techniques) had been authorized was one of the last things he did at DOJ. That he made the effort suggests that he believed such a written reminder was necessary to ensure DOD stick within limits authorized by OLC (though, as Levin reminds, they really hadn’t been, not formally). That he made the effort also suggests he thought such a warning would work to make DOD stick within the limits of those 24 techniques. Given that the White House issued some kind of memo on torture just 4 days after Goldsmith left (see document 63 at PDF 81), that might be overly optimistic.

In any case, it’s not clear what authorization DOD relied on after Goldsmith left.

Tags: Daniel Levin, Jack Goldsmith, Jay Bybee, Jennifer Koester, Jim Comey, Jim Haynes, John Ashcroft, John Yoo, OLC, OPR Report, Patrick Philbin, Steven Bradbury

The Congress is a place where we represent our people and where we serve our conscience. I strongly disagree with Bart, I think he’s wrong. But he was my friend. He is my friend. We hunt, we have campaigned together, and I’m going to try and show him the error of his ways. And I’m also going to try and see to it that we beat him on this because this is a matter of the utmost humanitarian and economic concern to this nation.

As of right now, the deal that Stupak made with Pelosi is off–he has postponed his press conference and Henry Waxman and Lynn Woolsey have said there is no deal on abortion.

But that leaves the problem of whip count. If Democrats lose all the people who had signed onto the Stupak deal, then they will have to get the vote of every single remaining fence-sitter to be able to pass the bill.

Which probably means it’s not going to pass unless some of those anti-choice Stupak supporters will flip and vote for health care anyway.

I’ve long said that Dingell would be the most likely person to persuade Stupak to let this pass. Not only is Dingell the living history of efforts to pass health care, he has been a mentor to Stupak over his career. So the man who most wants to pass this bill (from a sense of personal destiny) also has a bit of leverage to persuade Stupak.

What I’d like to see Dingell do–aside from talking to Stupak personally–is call Stupak out on his lies, his utterly false claim that the Nelson language doesn’t already restrict access to choice more than it is restricted now, and that only his language would preserve the intent of the Hyde Amendment.

But that’s simply an out-and-out lie.

Not only do Stupak’s claims about the fungibility of money fall flat (as Rachel explains), but his language would add onerous new barriers to choice for women everywhere.  As a key GWU study shows,

In view of how the health benefit services industry operates and how insurance product design responds to broad regulatory intervention aimed at reshaping product content, we conclude that the treatment exclusions required under the Stupak/Pitts Amendment will have an industry-wide effect, eliminating coverage of medically indicated abortions over time for all women, not only those whose coverage is derived through a health insurance exchange. As a result, Stupak/Pitts can be expected to move the industry away from current norms of coverage for medically indicated abortions. In combination with the Hyde Amendment, Stupak/Pitts will impose a coverage exclusion for medically indicated abortions on such a widespread basis that the health benefit services industry can be expected to recalibrate product design downward across the board in order to accommodate the exclusion in selected markets.

Now, Stupak can claim he’s simply making a principled stand so long as the media refuses to call him on his lies. But if Dingell called him on it–if Dingell pointed out that this is not a principled stand, but rather an opportunistic effort to exploit a historic moment to attack women’s reproductive rights–then he will not have cover for his actions.

Bart Stupak is not only threatening to kill health insurance reform out of desire to impose his beliefs on women around the country. But he’s doing so using out and out lies.

And it’s time somebody called him on those lies.

Tags: Bart Stupak, Ben Nelson, Henry Waxman, John Dingell, Lynn Woolsey, Nancy Pelosi

Except for this phrase, repeated twice: “all 240 detainees subject to the review.”

After carefully considering each case, the six agencies reached unanimous agreement on disposition determinations for all 240 detainees subject to the review.

[snip]

After all of the deliberations described above, the DNI-either personally for cases considered by Principals or by delegation to the ODNI official on the Review Panel-agreed with the other five agencies on disposition determinations for all 240 detainees subject to the review.

This process, apparently doesn’t apply to all detainees. Only the detainees “subject to the review.” Now perhaps they’re just making the distinction between Gitmo detainees and those in some black hole in Bagram or some other secret site. But it sure seems to be referring just to Gitmo detainees. In which case, there must be other Gitmo detainees, outside of the 240, who are not “subject to the review.”

Why? Who are they?

Executive Order 13492, which instituted this review, provides two potential hints. First, it provides this definition:

(c) “Individuals currently detained at Guantánamo” and “individuals covered by this order” mean individuals currently detained by the Department of Defense in facilities at the Guantánamo Bay Naval Base whom the Department of Defense has ever determined to be, or treated as, enemy combatants.

This would seem to leave out detainees held by CIA or contractors (maybe?). And it would seem to leave out those detainees whom DOD had simply never called nor treated as an enemy combatant. You know those family members Mary keeps asking about? They wouldn’t be enemy combatants, would they?

The EO also suggests DOD would have authority over any other detainees.

(a) Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order.

So while this letter to the Senate sounds like a wonderful work of rational deliberation, it also seems to hint at some remaining Kafkaesque hole, whereby some people who have not been deemed enemy combatants remain in some arbitrary limbo not covered by this great display of rational deliberation.

Update: Hmmm is right: the EO lets the Secretary of Defense do what he will with all the other detainees (which I guess makes it especially useful if your Secretary of Defense is an old Chief Spook). I’ve fixed the post accordingly.

Tags: Carl Levin, Dennis Blair, Dianne Feinstein, Eric Holder, Guantanamo, John McCain, Kit Bond, Robert Gates

As you might recall, the Jim Comey emails (probably leaked by the torture apologists last summer) provide a few clues about why Comey objected to the May 10, 2005 Combined memo. Significantly, he thought the memo was too general because it did not stick to the facts regarding one detainee who had already been tortured.

I also suggested a possible way to narrow the focus of the second opinion to be more responsible.

[snip]

[Alberto Gonzales' Chief of Staff Ted Ullyot] said Pat had shared my concerns, which he understood as concerns about the prospective nature of the opinion and its focus on “prototypical” interrogation.

[snip]

He mentioned at one point that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

As it happens, just six days after the Combined memo was published, Steven Bradbury issued a set of “Best Practices” for OLC. On at least two counts, his “Best Practices” violated the entire set of the May 2005 memos. In particularly, though, he warned against writing memos that were either retrospective or overly general.

The legal question presented should be focused and concrete; OLC generally avoids undertaking a general survey of an area of law or a broad, abstract legal opinion.

[snip]

Finally, the opinions of the Office should address legal questions prospectively; OLC avoids opining on the legality of past conduct (though from time to time we may issue prospective opinions that confirm or memorialize past advice or that necessarily bear on past conduct).

And yet, the Combined memo suffered from the fault of being both retrospective to that one detainee and overly general.

I wonder if that’s one of the reasons why Michael Mukasey spiked Office of Professional Responsibility’s proposed review of these memos.

Tags: Michael Mukasey, Steven Bradbury

Silicon inside the anthrax

First, if you didn’t already see JimWhite’s link to his diary on yet more evidence that the FBI didn’t solve the Amerithrax case, here’s another link. Jim discusses recent developments in the enduring questions regarding whether there was silicon in the anthrax or not, and does so in terms that non-scientists can understand.

The telecoms and the government making googly eyes again

Then there’s this article about a bill that Jay Rockefeller and Olympia Snowe have introduced to make it easier for the government and owners of critical infrastructure to collaborate.

If passed, the legislation would enhance collaboration between US intelligence agencies and the private sector. First, it would require the White House to designate certain technology systems as critical if their disruption threatened strategic national interests. If intelligence officials received information about a forthcoming attack targeting a specific company or critical part of the US infrastructure, a top-level private sector official with security clearance would be provided with “enough” information to defend or mitigate the attack, a congressional aide said.

The threat to critical infrastructure has become a flashpoint in the broadening debate about overall cybersecurity issues. More than 85 per cent of infrastructure that is deemed to be critical is owned or operated by the private sector.

I’m mildly sympathetic to the need to make sure the private sector cooperates in cybersecurity efforts. But I would feel a lot better about the issue if the same “critical infrastructure” companies–the telecoms–hadn’t collaborated with the Bush Administration to illegally spy on Americans. And heck, as cooperation with the Feds becomes a bigger and bigger cash cow for these companies, shouldn’t we just take them over and get better service for a reasonable price?

GAO begs to disagree

Then there are two posts on Obama’s threat to veto the intelligence authorization bill if it allows GAO to conduct investigations of the intelligence community. POGO has a good summary pointing out that this really shouldn’t be that big of a deal. And Steven Aftergood has a post with a link to and discussion of the letter the head of GAO, Gene Dodaro, sent to Intelligence Committee leadership informing him that claims made in the veto threat are inaccurate.

OMB warned that the President’s senior advisors would recommend that the President veto the bill if it included any of several provisions, including the sections concerning GAO. I write to clarify what I view as several misstatements of law and fact within OMB’s letter as it relates to GAO.

OMB’s letter posits that the passage of the GAO provisions would result in sweeping changes to the current statutory framework and provide GAO with authority it currently lacks to conduct reviews of intelligence activities. GAO strongly disagrees. GAO has well-established statutory authority to evaluate agency programs and investigate matters related to the receipt, disbursement, and use of public money under 31 U.S.C. §§ 712 and 717 and to access agency records under 31 U.S.C. § 716. These statutes and others provide GAO with the required authority to perform audits and evaluations of IC activities. Within GAO’s authority, specific safeguards exist to reflect the particularly sensitive nature of certain intelligence activities and programs.l The proposed legislative provisions in essence reaffirm GAO’s existing authority in order to address the lack of cooperation GAO has received from certain elements of the IC in carrying out work at the specific request of the intelligence committees, and other committees of jurisdiction as defined by the rules of the Senate and House.

GAO acknowledges and does not seek to displace the special relationship between the congressional intelligence committees and the IC. However, GAO does not agree with the Administration’s view, originating in a 1988 opinion of the Department of Justice’s Office of Legal Counsel, that the creation of the congressional intelligence oversight structure (codified at 50 U.S.C. § 413) implicitly exempted reviews of intelligence activities from the scope of GAO’s existing audit authority.2 Neither the language of section 413 nor its legislative history provides support for this position. Moreover, the executive branch has expansively applied the 1988 opinion as precluding GAO reviews of matters that extend well beyond traditional intelligence activities. This has resulted in GAO frequently being unable to obtain the access or cooperation necessary to provide useful information to the Congress on matters involving the IC.

GAO is basically saying the Obama Administration is taking an expansive read of an old OLC opinion that–GAO claims–ignores the relevant law to try to prevent competent oversight of the intelligence community.

Not much to say about the War now…

Finally, there’s this, from Mark Hosenball. Not surprisingly, the UK’s Iraq War Inquiry wants to ask Bush Administration leaders why they brought us into an optional war in Iraq. Also not surprisingly, those Bushies have no intention of cooperating.

British government sources tell Declassified that investigators for Britain’s official Iraq War inquiry panel—which has been conducting a lengthy probe into the origins and conduct of the war—want to make a fact-finding trip to the United States. One sensitive item on the agenda: trying to get interviews with former Bush administration officials.

But the sources, who asked for anonymity when discussing private information, said there are already indications that Bush administration “principals”—senior policymaking officials including George W. Bush and Dick Cheney—have indicated that they have no intention of talking to the British investigators.

[snip]

Bush and Cheney are not the only ones who are expected to turn down the Brits’ invitation. The U.K. source acknowledged that other top-tier Bush administration officials—including Condoleezza Rice and Donald Rumsfeld—are unlikely to speak with the U.K. inquiry, which has no power to compel their cooperation. The Washington Post reported that Stephen Hadley, Bush’s former national-security adviser, has been among those “voicing a strong disinclination to participate.” If the higher ups won’t talk, the panel hopes at least to secure interviews with lower-level U.S. officials who had a hand in planning and carrying out the invasion.

Golly! What ever might Dick and Bush and Condi and Rummy and Hadley have to hide?

The anonymous source calling Holder a coward

First, the story features several main sources for this story: Lindsey Graham, speaking on the record.

Holder, issuing no-nonsense statements like this, on the record:

And it’s Holder’s experience in the law-enforcement system that makes him such a strong believer in its ability to put terrorists like KSM away forever. “We should have great faith in the resilience of our systems, the resilience of our people, the toughness that has always separated Americans from other peoples in this world, and that’s what’s made this country great,” he says.

And at least one anonymous White House aide (AKA Rahm).

What I especially love about about that anonymous White House aide is that the guy who is too chicken to speak on the record seems to be parroting GOP attacks calling Holder weak on terror.

Republicans, meanwhile, were busy turning Holder into the poster child for White House weakness on terrorism, and some polls showed that most Americans agreed with them. “The only two people who still believe in civilian trials,” says one of the meeting’s attendees, “are Holder and the President.”

Brave anonymous White House aide!! Singlehandedly fighting terrorism by hiding behind anonymity!!

Lindsey’s July (?) meeting with Holder and December meeting with Obama

The article also provides a useful timeline for two meetings Lindsey had with the Administration, first an July (or August) meeting with Holder.

By July, Obama had asked Holder to decide whether it was feasible to prosecute KSM in a civilian court. Holder chewed on that question for weeks. Meanwhile, Obama’s chief of staff, Rahm Emanuel, who opposed civilian trials, asked Holder to meet with Republican Senator Lindsey Graham of South Carolina, a key centrist vote on matters of counterterrorism. Graham told Holder he strongly opposed civilian trials for the alleged 9/11 conspirators and that they could affect his support for closing Guantánamo Bay prison, a key Obama goal.

And then a December meeting with Obama.

When Obama met with Graham in early December, the Senator laid out his case against civilian trials. But the President said he thought Holder had the better side of the argument. “I just agreed to disagree with the President on that issue,” Graham told TIME.

Those meetings are interesting both for the way they match up to the timeline of the attacks on Holder and Greg Craig (which started in earnest around the time of the first meeting, and culminated in the December meeting after Craig had been ousted.

I’d really love to know the logic for the Obama meeting. After all, this was before the Christmas day bombing, when the Administration was still basking in the success of the foiled Zazi plot. And it came at a time when the Democrats had 60 votes in the Senate.

So why meeting with Lindsey?

It sure suggests the push against civilian trials is more about politics than efficacy.

But we knew that.

Tags: Eric Holder, Greg Craig, Lindsey Graham, Rahm Emanuel

The American Civil Liberties Union lawsuit charging that former Attorney General John Ashcroft is personally responsible for the wrongful detention of an innocent American, Abdullah al-Kidd, can go forward, the U.S. Court of Appeals for the Ninth Circuit ruled today. The ruling denies Ashcroft’s request that his appeal be heard by the entire court and upheld the court’s September 2009 decision that the federal material witness law cannot be used to detain or investigate suspects where no probable cause exists for criminal charges. The ruling also held that Ashcroft does not have immunity in this case and can be held personally liable for the wrongful detention of al-Kidd.

“In this country, we don’t believe in arresting and imprisoning people who haven’t been charged with any crime,” said ACLU Immigrants’ Rights Project Deputy Director Lee Gelernt. “Former Attorney General Ashcroft deliberately distorted the federal material witness law to allow the detention of innocent people. As the primary architect and overseer of this policy that so clearly circumvented the Constitution, he should be held personally liable.”

Prior to 9/11, the federal material witness law was used sparingly – especially with U.S. citizens – to ensure that witnesses would be available to testify in criminal cases. Arrests under the statute took place in rare cases to secure testimony where there was hard evidence that an individual had material information but would not testify voluntarily. After 9/11, Ashcroft retooled the law into an investigative detention statute, allowing the government to arrest and detain individuals for whom the government lacked probable cause to charge with criminal violations.

Today’s ruling affirms the court’s September 2009 ruling that found that the material witness law may only be used when an individual is genuinely sought as a witness and where there is a real risk of flight. The court ruled that the law does not allow an end-run around the constitutional requirements for arresting someone suspected of a crime. Ashcroft had appealed the ruling.

Al-Kidd, a U.S.-born American citizen, was on his way to Saudi Arabia to study when he was unlawfully detained and arrested in Washington’s Dulles Airport on March 16, 2003 as a material witness in the trial of Sami Omar Al-Hussayen. For 16 days, al-Kidd was held in heightened-security units of various jails and shackled whenever moved. He was eventually released under onerous conditions that included confining his travel to four states, surrendering his passport and reporting to probation officers. Al-Kidd was held for more than 13 months under these conditions without ever being charged with any crime or asked to testify.

At the time of his arrest, al-Kidd had already shown that he was not a flight risk and would cooperate as a witness. He had voluntarily met with the FBI repeatedly, never missing a scheduled appointment. For six months prior to his arrest, al-Kidd had not been contacted by the FBI, and he had never been told that he was prohibited from traveling abroad to pursue his studies.

The ACLU lawsuit names Ashcroft, the United States and several federal agents as defendants. Local, state and federal officials in Virginia, Oklahoma and Idaho already settled claims against these parties.

A trial potentially adds three things: the option of the death penalty; enhanced legitimacy in some quarters, especially abroad; and a certain catharsis and historical judgment in the form of a criminal verdict.

These are non-trivial benefits, but as the battle over the past few months has shown, they come at great cost. Domestically, the political costs of trying high-level terrorists in federal courts have become exorbitant for the administration — unaffordably high, it seems to be turning out.

They make no consideration of the importance of a trial for our rule of law, our system of justice. And fail to consider any potential direct benefit in showing potential terrorists that we don’t stoop to the arbitrary authoritarian ways of the oppressive countries many of them are fighting. This is not about impressing Europe, as they seem to suggest, but about impressing young Saudis or Pakistanis, showing them the rule of law.

And from there, Goldsmith and Wittes treat the political debate over civilian trials equally cursorily. They might consider, after all, the reasons why civilian trials have become so costly: the fact that Dick Cheney and his daughter, trying to avoid any consequences for instituting a torture regime, are paying a lot of money to sow fear about civilian trials.

It’s a political ploy. Nothing more. Yet one that plays to the weaknesses of someone like Rahm, who apparently doesn’t see much value in defending principle. But the political cost doesn’t have to be that high; Obama has just let it be made so.

And so, with those five lines dismissing the value of the rule of law on which our country is based, they go on to focus more on their straw man target, military commissions.

The legal and political risks of using the ill-fated military commission system are also significant. After the Supreme Court offered a road map for a legally defensible system, Congress has twice given its blessing. But serious legal issues remain unresolved, including the validity of the non-traditional criminal charges that will be central to the commissions’ success and the role of the Geneva Conventions. Sorting out these and dozens of other novel legal issues raised by commissions will take years and might render them ineffectual. Such foundational uncertainty makes commissions a less than ideal forum for trying Mohammed.

Moreover, the public relations and related legitimacy benefits of trying Mohammed in a commission are not that great, especially since the administration insists that he will remain in detention even if acquitted. The possibility that the administration might try him in a commission has been met with anger and disdain by the American left and many European elites, who think commissions are as illegitimate as they believe the underlying detention system to be. They will work hard to delegitimize their proceedings too.

In short, a military commission trial might achieve slight public relations and legitimacy benefits over continued military detention of Mohammed, and might facilitate his martyrdom by ultimately allowing the government to put him to death. But this would add so little to the military detention that the administration already regards as legitimate that a trial isn’t worth the effort, cost and political fight it would take.

Now, there’s a reason Goldsmith and Wittes focus so much more closely on military commissions than civilian trials. That’s because there are real drawbacks to them. They are legally dicey, they are likely to result in years of delay, they actually offer fewer tools with which to try KSM successfully. And of course, Goldsmith and Wittes don’t acknowledge that that is one key basis for criticism of military commissions: they simply won’t be as effective as civilian trials. Instead, they falsely suggest that leftist opposition to military commissions is some nihilist attempt to discredit the trials just for the sake of principle. By making the criticism of not just the left but the military into a strawman, they avoid the fundamental agreement between us and them about the weaknesses of military commissions.

And so, with that canard, Goldsmith and Wittes dismiss the PR value of military commissions, too.

Poof! By weighing our entire legal system as one big PR gimmick (and failing to do that very well) Goldsmith and Wittes manage to decide it’s just not worth all that much.

But the clever op-ed is valuable for something. It shows what a slippery slope Obama is on. Because once you fail to make the case for the principle of rule of law, when you fail to point out the benefits it offers both as a necessary step to reclaim the America that used to inspire others rather than inflame them and as a proven way to adjudicate crimes, then there’s little to distinguish the benefits of civilian trials and the arbitrary rule of indefinite detention. (I’d also say that, short of pointing out that most candidates for indefinite detention are such because they’ve been tortured into craziness by Goldsmith’s former employers, you fail to point out how Cheney’s mistakes have gotten us here.)

Even Eric Holder, who genuinely wants civilian trials, has conceded the possible efficacy of military commissions and indefinite detention. And once you’ve done that, rather than defend the principle and efficacy of civilian trials, you’re on the slippery slope where our entire rule of law is just a big PR ploy. One that can be discarded for arbitrary indefinite detention when it becomes convenient.

Tags: Barack Obama, Ben Wittes, Eric Holder, Indefinite detention, Jack Goldsmith, military commissions, Rahm Emanuel

I wanted to put two totally bureaucratic pages (PDF 23-24) from the recent FOIA dump into the context of the other known documents in the chronology. The first page is an “Executive Correspondence Routing Sheet,” sent from CIA General Counsel Scott Muller around top CIA management for approval. It reads:

This memo follows General Counsel discussion with the DCI and agreement on the need to seek reaffirmation from the NSC.

And the memo in question (the following page) appears to be a very short memo with the subject, “Review of CIA Interrogation Program,” from John Rizzo circulated to the lawyers involved with the torture program and the top CIA executives on the Executive Correspondence Routing Sheet. The Rizzo memo is dated May 24, 2004; the last signature–that of George Tenet–is dated June 4, 2004.

The routing sheet is interesting not just because Tenet signed it the day after he resigned.

It also shows a glimpse of the bridge by which CIA responded to the CIA IG Report but also (probably) Jack Goldsmith’s unwillingness to reaffirm opinions that OLC had never made by asking the White House for some kind of written re-endorsement of the torture program.

As I’ve shown here and here, when the CIA Inspector General began its review of the torture program in response to the Salt Pit death and abuses of al-Nashiri, CIA and Jennifer Koester and John Yoo (though he denies involvement) worked back channel to develop a set of “Legal Principles” (elsewhere called “Bullet Points”) that would expand the legal authorization DOJ had given CIA’s torture program in such a way as to legally excuse the crimes the IG was inspecting. Significantly, the Legal Principles document expanded the already farcical analysis of Article 16 of the Convention Against Torture that Yoo had done in the Bybee One memo.

CIA twice tried to present these Legal Principles to OLC as a fait accompli, first in June 2003, when Patrick Philbin took over many of John Yoo’s duties, and then again in March 2004, in conjunction with the finalization of the IG Report and at a time when Goldsmith headed the OLC. Both Philbin and Goldsmith refused to accept the Legal Principles as OLC sanctioned documents.

Now, significantly, the March 2, 2004 set of Legal Principles was itself a request for “reaffirmation” of the torture program’s legality. Scott Muller emphasized CIA needed that reauthorization, among other reasons, because they had incorporated new torture techniques based on the OLC “guidance.”

For example, using the applicable law and relying on OLC’s guidance, we concluded that the abdominal slap previously discussed with OLC (and mentioned in the June 2003 summary points) is a permissible interrogation technique.

Of note, Goldsmith appears to have taken special note of the description of water PFT, which (Muller’s note said explicitly) was “intended to … humiliate” detainees. Given that the IG Report concluded that the torture program probably violated Article 16, this language seemed to flout the prohibitions against cruel, inhuman, and degrading treatment.

Between March 2 and May 24 (when Rizzo wrote his memo), Goldsmith did not reauthorize the Legal Principles. Nevertheless, CIA incorporated the Legal Principles into the final draft of the IG Report. Goldsmith got a copy of that document some time before May 25 and presumably spoke to Muller about the inclusion of the Legal Principles in it, because on that day, he wrote CIA’s IG noting that he had received it and asking for time to review the depiction of OLC’s legal advice in the IG Report before it got sent to Congress.

In other words, Goldsmith’s continued objection to the inclusion of the Legal Principles in the IG Report is probably what prompted John Rizzo to send out a memo referencing the IG Report (which the CIA called the “Review of the CIA Interrogation Program,” the subject of his memo) that appears to have recommended asking NSC for reaffirmation of the torture program.

So faced with Goldsmith’s refusal to reaffirm something OLC had never affirmed in the first place, CIA decided to go to the White House and get them to approve of the program in writing. It took 11 days to between the time Rizzo apparently made this recommendation and all the CIA bigwigs signed off on the idea.

The day before he signed this memo, George Tenet resigned.

Then, on day he signed the memo, Tenet wrote Condi requesting the reaffirmation in question. Even in the few unredacted passages in Tenet’s letter, he made at least two false claims: that DOJ approved the program in September 2002, and that leaders of the intelligence committees were briefed on “the existence and nature of the Program” … “from the beginning.”  (Though perhaps we can forgive Tenet’s false claim, since apparently CIA had no fucking clue what it had told Congress at that point.)

It took Condi a week to get back to Tenet, in turn, a week during which the memos leaked to the press. She basically punted the reaffirmation request right back to DOJ.

I have reviewed your memorandum to me of June 4, 2004. As we have already discussed, the next logical step is for the Attorney General to complete the relevant legal analysis now in preparation. Once this work is completed and you have returned from your current travel, we can convene a Principals Committee meeting on this subject. In the interim, I will contact Attorney General Ashcroft to underscore the priority we attach to completing expeditiously the Department of Justice’s legal analysis. I also encourage you to carry through on your expressed intention of talking with the Attorney General directly on this subject before any Principals Committee meeting.

Of course, while Condi was dawdling over a document promising to deal with this “priority … expeditiously,” Goldsmith and CIA were still sending documents back and forth. On May 27 (that is, before Tenet first wrote Condi), Goldsmith raised concerns about the conclusions of the IG Report and advised Muller to terminate use of the waterboard and make sure all torture techniques adhered to the descriptions in the Bybee Two memo. On June 10 (the day before Condi wrote back to Tenet) Goldsmith wrote Muller again, repeating and strengthening his refusal to treat the Legal Principles as OLC opinion and also telling Muller that if he wanted an opinion he’d have to put the request in writing; the fact that Goldsmith kept the fax confirmation sheet suggests he wanted proof it had been received at CIA.

Then, after Condi sent the letter punting the issue back to DOJ, things got worse. On June 18, just days after he announced his own resignation, Goldsmith wrote fellow lame duck Tenet, requesting that CIA make two changes to the IG Report, both with regards to what DOJ considered mischaracterizations of DOJ approval of the torture program (see this post for details). On June 22, Comey and Goldsmith and Philbin withdrew the Bybee Memo.

And it’s in that context that on July 2 the Principals meet. Without Goldsmith present. Rather than deal with the program generally, this meeting purportedly related to just one detainee. And, after the two biggest torture skeptics (Jim Comey and John Bellinger) left the meeting, they got a fax, telling what was going to be approved.

(At about this time, what appear to be discussions of whether detainees can be taken from Iraq heat up.)

It appears, finally, that White House wrote a letter “reaffirming” the program on July 21 (see document 63 at PDF 81), after Tenet, Goldsmith and possibly Scott Muller were gone. And the following day, Ashcroft wrote John McLaughlin a half page letter stating the same thing Goldsmith had said on May 27 and July 7, that CIA could use every technique described in the Bybee Two memo except waterboarding, subject to the restrictions in that memo. Ashcroft’s letter contained one very important point of emphasis, particularly given the Administration’s apparent promise to Congress to get an OLC opinion assessing whether the torture program violated the Convention Against Torture. Ashcroft explicitly said the torture program didn’t violate Article 16.

And that’s how it happened that, after CIA’s own IG concluded that the torture program violated CAT, it was reaffirmed without analysis of whether it violated CAT or not.

Tags: Condi Rice, David Addington, George Tenet, Jack Goldsmith, Jennifer Koester, John Ashcroft, John Helgerson, John Rizzo, John Yoo, Patrick Philbin, Scott Muller