Acting Counsels and Torture
Marty Lederman links to the finally declassified March 2003 memo authorizing torture in the military (Part One, Part Two). He reminds us the significance of the memo:
As I’ve discussed previously — see for instance here and here, and as Jane Mayer has reported in great detail, the March 14th Yoo memorandum, and the April 2, 2003 DOD Working Group Report that incorporated its outrageous arguments about justifications for ignoring statutory limits on interrogation, was secretly briefed to Geoffrey Miller before he was assigned to Iraq, and became the source of all the abuse that occurred there in 2003 and early 2004. (In late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the "unusual lack of care and sobriety in [its] legal analysis" — it "seemed more an exercise of sheer power than reasoned analysis" — and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo. See the whole story here.)
But I’m even more interested in this part of Marty’s post:
On Friday, March 13, 2003, Jay Bybee left his office as the Assistant Attorney General for the Office of Legal Counsel. The very next day — a Saturday — John Yoo, merely a Deputy AAG in the Office, issued his notorious memo to the Pentagon, on behalf of OLC, which effectively gave the Pentagon the green light to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees.
It describes how, as soon as the established top lawyer for one part of the executive branch left, his replacement took responsibility for a significant legal act. I find it ironic, particularly given the stamp that appears on the first page of the first part of the memo:
Declassify under authority of Executive Order 1958
By Acting General Counsel, Department of Defense,
By Daniel J. Dell’Orto
31 March 2008
Dell’Orto, you’ll remember, replaced William Haynes at some point last month. I’m not precisely sure when Haynes’ last day was–but within weeks of taking over as Acting General Counsel at DOD, Dell’Orto declassified an opinion we’ve been trying to declassify for years. Perhaps not surprisingly, the opinion, which has been treated as the family jewels by the Bush Administration. And just a few weeks ago Attorney General Mukasey was pretending he had barely reviewed it. The opinion was only ever classified as "Secret/Noforn."
In any case, what Yoo did, as soon as Bybee left the OLC, Dell’Orto has finally exposed, as soon as Haynes left DOD.
Update: Corrected claim that Yoo was "acting head" of OLC per Mary.
I want our Constitutional government back.
Bob in HI
I’m not sure how much you have Dell’Orto doing the right thing, vs. having Haynes – who was directly Cheney’s boy and would never go against Cheney and Addington if Gates told him to – gone so that Gates could exercise his own muscle. And, of course, Dell’Orto looking at the possibility that in a few months someone would be looking over his figurative shoulder and asking him for a reason why he didn’t declassify.
As Lederman notes, there’s no reason. Period. Other than the direct chain of responsiblity for Abu Ghraib and the non-photographed torture right back to Haynes, Yoo, Bybee, Bush et al.
I guess Chevron is planning on keeping Haynes close to home. Or maybe making him the big bannana in charge of their Chiquitaesque operations.
Really and truly – Chevron, Pepsico – they should just be flat out ashamed to put tortureboys in as counsel.
Exactly. Too convenient by half that Cheney’s Haynes went to a Cheney energy pal, whose general counselship just happened to open up when needed. I was disappointed that Gates let so many Cheney moles survive this long. Hard to imagine how much of a bureaucratic snake-pit it must be, even by Bush-Washington standards.
Actually there was IMO an intertwined chain of command. There is the legal one. The uniformed military one, and the civilian Pentagon leadership. Mixed in with this are intelligence contractors who had not so much a chain of command as loose links to the CIA.
Those calling the shots at the White House were Bush, Cheney, and Addington. Rumsfeld and Cambone at the Pentagon. And who knows who at the CIA.
Those left holding the bag for Abu Ghraib were of course enlisted schmucks and mediocrities in the regular military chain of command like Sanchez and Karpinski.
pssst – Yoo wasn’t even acting head when he issued it – Whelan was I think. May be why he snuck it out on a weekend.
Knew I should have checked that. And I agree that this is likely to be a Gates thing as much as anything else (not to mention a Mukasey getting reamed for refusing to reveal this opinion). Though it is striking that, as soon as Haynes left, this came out.
Wow. THis is bad. Wonder how long it’ll take Berkeley to try to talk Yoo out of his tenure position.
The irony of Yoo at Berkeley is pretty striking. Academic freedom, like free speech, only works if you’re willing to apply the same rules to your intellectual opponent as to yourself. Yoo, however, I would consider charging as a war criminal. As a PR matter alone, if I were Berkeley’s law dean, I would be trying to get him appointed anywhere else. Why not the AEI, in the office next to Libby’s (or wherever he ended up).
Actually, I think some dude in Germany has tried to charge Yoo with war crimes; no clue what the status of that may be.
Rummy and others were charged…
http://www.democracynow.org/20…..in_germany
It will be interesting to see what happens to Bush tomorrow wrt NATO gathering…
My hope is that some people finally get the guts to do the right thing after reading this and come forward.
And more fun stuff “hits the fan…”
http://thinkprogress.org/2008/…..-election/
I love how you understate things. *g*
Bad? “Bad” is what kids do pickin’ their noses.
This is out and out pathetic, juvenile and criminal reasoning intended to furnish a dictatorship with the apparent justifications and rationalizations that would provide the dross of “legality” in the eyes of the peasantry.
“Torture is OK” if the President authorizes it, in spite of the entire national and internation compendia of legal prohibitions, makes Nixon look like an altar boy who confessed to having “impure” thoughts.
This memoranda was never meant for public eyes. In fact, this memoranda could never have been meant for folks who were “compos mentis”.
I am totally gobsmacked, in spite of even my longstanding cynicism towards the nefariousness of this Administration. Criminality aside, how could any person of intelligence ever read these memoranda with anything but horror?
By Paragraph 2, Yoo has already jumped off the sanity cliff:
That’s classic legalese. Language like “misconstrued” Yoo means literally. He also uses it to signal to very smart, savvy, aggressive players that the criminal statutes he describes might readily be construed to apply to the stated behavior. Hence, his fall back position of relying on “inherent” Constitutional powers that neither Congress nor the courts have agreed exist. (”I told them they could NOT kill the priest, but that they could rid themselves of his vexatious spirit.”)
Which is a lawyers way of saying, “I’ve just given you as much cover as I can, so when you do it, which we both know you will, or else you wouldn’t have asked for my opinion, do it far away and as quietly as possible.” An elaborate minuet on a tight rope.
Yep. Yoo was denied being made even temporary, much less being made permanent head, which pisssssed off Addington and Cheney no end. It meant that the terrorism-is-legal cat might scratch its way out of the DOJ bag. They were right; it did. So far, it’s screech hasn’t reached enough ears.
I agree EW. Haynes has been a floodgate for a lot. It hasn’t been easy to be JAG while Haynes held the floor.
BTW – wasn’t Goldsmith special assistant to Haynes when the memo was issued? ANd given the Mora incidents, how plausible is it that Goldsmith have not known until he got to OLC about the memo? Oddish.
As to Yoo, the malignant tuber (I’m kind of proud of that “YooTuber”), that has always been another sign of the compartmentalization shell game and tomfoolery going on with the snooping and torture process. Yoo became the go to guy even though there were multiple attorneys superior to him at OLC. It appears that he was doing work in the name of the department that the superiors in the OLC were not truly in the know on. How does this happen (pretty much Cheney/Addington I suppose, but it is not proper by any stretch of the imagination) and how do a whole host of DOJ leaders permit it?
I’ve read that Yoo, in practice, reported to Addington and Cheney, not his OLC boss or Ashcroft, and that that was a significant factor in Ashcroft actively opposing Yoo as Bybee’s replacement as head of OLC. I don’t think Cheney/Addington ever expected him to do that and that they blamed Comey for Ashcroft finally becoming informed and finding his backbone.
Mary
Do you have a link (besides Scott Horton) that says Haynes is official at Chevron as GC or even Counsel? I can’t find one at the Chevron site doesn’t list it at all, not even a press release announcing it.
william haynes chevron general counsel
Sorry, didn’t mean to hit submit there. Looks to me from some of their filings that some dude named Chuck james is General Counsel at Chevron, not Haynes.
Right, though they haven’t updated their webpage for him since last year. So far I can only find the Chevron thing at Horton’s.
As folks are reading the opinions, I’d love to know what you think about Yoo’s treatment of CAT here. I’m curious on two fronts. First, how would this opinion play into the CIA IG report that found CIA interrogations violated CAT. As far as the conduct on the torture tapes (take in 2002), obviously, not at all, since this opinion post-dates it. But could some idiot use this opinion to say that the US–including the CIA (which isn’t explicitly included in this opninion)–could violate CAT overseas against enemy combatants.
Second, where would those contractors Hugh raises fall, under CIA (whose expertise they shared) or DOD (who probably contracted them)?
Yoo don’t ask for much do Yoo? Crikey, my head already hurts (allergy season), am going to have to find some, um, painkiller before I tackle that request. As to Haynes, I checked Corporate Counsel, which I used to be a member/subscriber to; can no longer get into the full thing, but could find no press releases to indicate that James was not still there.
Only half-jokingly, this administration doesn’t think any laws apply to its contractors, especially those in Iraq. They’ve worked hard to keep it that way. But how, you might ask, would a subsequent administration, staffed by leaders and lawyers with less disdain for the law, view these opinions.
First thoughts. Few knew about the Yoo memos, but that someone at OLC had issued them became a lucky charm for government excess. We’ve discussed before, and I’m convinced it’s true, that the top players knew they couldn’t rely much on Yoo’s opinion. It would be more useful keeping them out of court than it would be in court. Addington and Libby, for example, both more talented and serious lawyers than Yoo, would have known that.
It is slow going because almost every single one of the ever-present footnotes describes even more OLC “opinions” that reek of criminal insanity:
And on and on and on.
12 – Just Horton. It really surprised me to see it, but Horton has mentioned it a couple of times I think. He only says as counsel, though, not General Counsel. If it’s not GC, it may not get a press release, but you have to think that Chevron shareholders should get a heads up when a guy who was never allowed through committee for a judicial appointment because of questions about not only torture, but truthfulness under oath to Congress, gets put on staff. Horton seems to be the only one to mention it though. So ??
via Wikipedia:
“In February 2008, Haynes resigned from his position as the Defense Department’s general counsel.[11] He will start his new job as the Chief Corporate Counsel at the Chevron Corporate Office in San Ramon, CA on April 28, 2008.”
Right. But once again, that’s not cited (nor is it cited in the Jurist article linked there).
Also note, there’s a Haynes who is a former CEO of Chevron. Is it a Haynes’ relative? In other words, is this like Poppy Bush bailing out Junior?
I’m just struck by the absence of anything official that confirms the move. I don’t disbelieve it. But like Mary, I wonder why a publicly traded company–particularly one that operates under some tense environments around the world (I’m thinking of SE Asia and especially Nigeria, where a friend consulting for Chevron was practically held hostage on a trip once)–would want to hire someone likely to be indicted for war crimes by SOMEBODY.
Oh, he’s at Chevron. It just appeared to me that he was corporate counsel (higher than staff counsel) or assistant GC or something, but he appears to be there. I had the same question about the previous Haynes CEO.
I have access to some pay-to-view databases. I’ll check on him. Back later ….
Thanks. I’ve done a cursory check in Lexis news, but not in legal and business docs.
That title for Haynes at Chevron covers a multitude of sins. It could be anything from deputy GC, with a direct reporting line to the GC, and being in charge of a wide swath of work while waiting a delicate period before becoming GC. It could also mean he’s chief commercial lawyer for Californian operations or anything in between.
Stripped of the political impact of his work, his resume’s probably impressive. Not doing that, it looks like WingNut Welfare. The slot is important and lucrative enough to keep his career on the boil and keep him quiet. Not high enough to put him in front of a board or the public very often.
21 -You mean like in the el-Masri suit?
I’m mostly asking bc of timing. I do suspect the release of the document is due to pressure from Gates, the embarrassment of Mukasey, and perhaps the tensions surrounding Haynes’ insta-departure in February. Probably also the upcoming show trials, to prove to courts that the torture that was done by those now suing was done with legal sanction. But I also wonder if the torture tape investigation plays into it at all.
25 -not just this administration. Contractors in the Clinton administration got pretty free rein (or you could substitute reign) too.
http://dir.salon.com/story/new…..6/dyncorp/
All of this is one of the big problems with the Clinton candidacy. So many things that need fixing and address do track back to things done on a lesser scale during the Clinton admin – no one will be motivated to dig in on things if there could be some passing mentions that are embarassing to the Clintons too – Bill’s warrantless latin american wiretapping program, his rendition flights to Egypt, etc.
…Bill’s sanction of the telecoms residing on the US circuits to conduct telecom surveillance…
This is exactly one of the main reasons that I support Obama. We need a break from both previous administrations, and I am hoping that Obama can be the kind of leader that we need. But Joe Wilson doesn’t think so, apparently.
Bob in HI
Scary. I googled “‘william haynes’ chevron” and the first item that popped up was one of mine from this thread.
For when masaccio stops by. You will be interested in this:
Lord, you found me; had just ducked in to lurk for now, but here’s an antidote:
The US subprime mortgage crisis: A credit boom gone bad?
Digg it!
“Mark to market” means accounting for an asset based on what it’s worth, what an unrelated, informed buyer would pay for it. As opposed to what Enron or BS might try to say it’s worth for marketing purposes. If that’s what’s wrong with our financial system, we are all down the rabbit hole, where up is down and small is big.
“mark to market” was originally adopted as an alternative to carrying assets on the balance sheet at the original purchase price (i.e., valuing Manhattan Island at $24 if your company bought it in 1626 and still owns it). This was intended to make the true value of corporate assets more transparent to outsiders. In general (in the case of traditional corporations that had owned assets for a long time) it usually had the effect of marking things up, not down.
Stripped of the political impact of his work, his resume’s probably impressive.
I believe that Philbin, Comey, Goldsmith and Thompson all marvelled at the fact that he did a nice job with his paperwork.
29 – it may, Horton keeps mentioning the upcoming IG report. I do think that the show trials are partly at issue – especially with the decision to supercede the civlian criminal indictments of one of the detainees with a military proceeding seeking the death penalty. At some point, there was probably going to be a big showdown (since JAG has not been as completely corrupted and spineless as DOJ) over some of the interrogation procedures and the basis under which they were deemed legal so as to make the information admissible.
Of shores or on – keep in mind that much of what is authorized as done on US shores to a US citizen (Padilla) and has been continued on US shores vis a vis al Marri. Despite Comey’s presser to the contrary, there was a Pentagon report of Geneva Conventions violations ongoing at the So. Car. brig signed out from the month before the Presser. And there are about 70ish “missing” interrogation tapes there too IIRC.
Sorry. Different IG report. I was thinking of the CIA IG report that stated that the interrogation processes CIA was using (in the torture tapes among others) violated CAT. Once CIA IG stated that, there should have been a criminal referral, per the way things work there, at least as far as I’ve found publicly. So it would be almost impossible to get a lawyer to sign off on destroying the torture tape. BUt a lawyer did anyway, and so I’m wondering if Yoo’s ridiculous claims here about CAT might have persuaded a pliable CIA lawyer to say CAT didn’t matter.
The context would be Durham’s investigation.
36 – there was a lot of rumbling in financial areas pre-Nov 07 about what would happen with the rule change. I think Newsweek makes it sound pretty innocuous – that they were being allowed to put pretty much any value they wanted on those kinds of holdings. I likened it to me being able to claim, without trying to sell him on the market, that my blind in one eye untrained pony was worth $20,000 or so and then use that “equity” as a value enhancer for my balance sheet.
From the WaPo story on this:
So while DOD declassified it, it went through DOJ before getting to Congress, and we the people.
And to add more fuel to your fire, Yoo’s memoranda was basically the blueprint which was used by DoD in a “Working Group” to “legalize torture” as the WaPo puts it:
And the WaPo continues with:
Note this interesting tidbit of the Federalist cabal:
That actual working group report that Air Force General Counsel Mary Walker rammed through over the strong objections of the military’s JAGs is:
Working Group Report On Detainee Interrogations In The Global War On Terrorism: Assessment Of Legal, Historical, Policy, And Operational Considerations (2003)
Btw, more on Air Force General Counsel (and Federalist co-conspirator) Mary Walker’s tiptoe through the tulips:
I forgot one more juicy part:
Wow. DIdn’t know they had a candidate picked. And a reliable DOD one at that. Just the kind of person who would spike an investigation into illegal data mining of Americans contracted through a Republican crony.
THough that email was before the Duke scandal exploded: March 2005 was the email, June 2005 was when USA started inevstigating Duke.
40 – I don’t know how they could have/ would have done the crimnal referral based on the info they could release. CAT isn’t self-implementing. They couldn’t mention who the victims of the crimes were (we know some on the waterboarding front) and they don’t mention who the perpetrators were either. I don’ think there were the specifics requisite for a criminal referral that they were authorized to release, but I don’t really know enough about it.
I do know that we have Kurnaz talking about a suit – I’d guess a TVA suit like el-Masris (among other claims)as well now for the non-CIA military intel actions. There is also the Sands book coming out.
Vis a vis Durhams investigation, that could be some of the impetus to release. One thing I seem to remember (haven’t looked at the classification stuff in awhile and I don’t tend to memorize stuff well unless I work with it) is that something like the March 14 memo should have had a reference to what sections of the Exec Order it was classifed under and who classified – but I don’t recall seeing that.
Does 1958 seem like the right Exec Order reference for declassification? Does he mean 12958? and why not 13292?
Seems to me most of this stuff is missing:
And it’s kind of hard to believe that it would be because of this:
I’m thinking no one other than Haynes would make the bald faced assertion that this memo was properly classified and the pressure to release could have come from a lot of different fronts, but I buy your spec on Durham as being a likely sourcepoint.
He probably does mean 12958. A lot of people refer to 13292 as “12958 as amended.” What’s interesting about thta is that Dell’Orto is declassifying as the document owner as the replacement for Haynes. But that means the two supervisors of Haynes, Gates and Bush, chose or otherwise decided not to declassify this themselves. I guess that’s not surprising, but I find it somewhat curious since he declassified in order to give to DOJ to give to Congress.
The classification thing strikes me as odd, too. Presumably DOJ is the initial classifying agent — they wrote the damned memo, after all — and so in theory they and not the DOD would have the responsibility for declassifying it.
In a practical sense, DOJ would likely not do so without the DOD signing off on it. I could see DOJ saying to the DOD, “It’s your guys with their necks on the blocks in this war, and if you say it’s OK, we’ll declassify it.”
The general rule is that each agency classifies and declassifies its own materials. I’d like to know more about how DOD can declassify a DOJ memo. The only thing I can think of is that under circumstances like this, where DOD requests a ruling from DOJ, the DOD retains the classification authority for the whole thing. If there’s any other explanation, I’d love to hear it.
Oh, I think there’s no question this was improperly classified.
EW – I think your 41 tends towards supporting your 40.
Maddog – that “draft” was taken by Haynes and shipped out without the rest of the working group knowing IIRC and that was the basis of some of the Haynes
fibbingparsing before the Judiciary committee and the strong arming of the JAG officers – with Haynes saying they had all had a chance to review that working group memo and were ok with it, then JAG officers having to get drug in to say that their boss was embellishing a bit – they saw only the draft and were waiting to work on it and change it when he approved it on out. I may be wrong on the details there, but I think that’s about it. And even so, Goldsmith, Comey etc. were pushing him for approval. Boggles the mind what is considered inappropriate.To follow up on Walker, though she was also tied in with the inquiries by Sen Grassley that put the heat on former DOD IG Schmitz (who has the infamous sister)
http://www.corpwatch.org/article.php?id=12596
Ta Mary!
Ever wonder how ignorant we’d be without the toobz? *g*
45 – that’s good stuff. I never knew Horton was the lawyer the JAGs went to in NY. As you can see, all that highlights the continuing (to the very end) efforts by Haynes to subjugate JAG as thoroughly as DOJ was subjugated. But while DOJ went down in flames early and apparently doesn’t have a phoenix gene – some of the JAG officers and guys like Mora ended up being far tougher than their civilian counterparts.
That’s why they only hire a few good men, and women. They may not carry a weapon, except the law, but they’re standing a post.
Meanwhile, this press release came out last month at Boalt Hall in Berkeley:
I wonder if Yoo attended the ceremony?
48/51 – not only improperly classified substantively, but procedurally as well. I think as much as document “owner” he is declassifying as the holder of the position that originally “claimed” classification authority? But that’s an interesting approach if DOJ’s OLC was the entity that generated the document.
An interesting mishmash. The office/agency of origin isn’t the one doing the classification? Or is it? This is one place where Haynes didn’t do his paperwork too well, bc there is nothing showing the information which should have appeared as to what section it was classified under and who asserted the classification authority. At least – that’s not on what I can see of the document from the link. You might compare with, for example, some of your Plame docs that were released.
The more I think about it (since my comment @ 53), I’m wondering if OLC might be somewhat unusual when it comes to the classification rules, in that their principal task is to advise others. Thus, those “others” might be better suited to define the parameters of the classification, and OLC’s work product — like these memos — might also belong ultimately to those who have requested it as well.
Just a WAG, but it makes sense to me.
What lawyer outside this White House imagines that the “inherent”, unspecified-in-any-document authority of the President – when acting as Commander-in-Chief of the legally constituted armed forces of the United States, operating under applicable US laws (including those international and foreign laws incorporated by custom and treaty therein) – includes a “right” to torture at will?
A “right to torture” does not exist in the text of the Constitution. It cannot properly be inferred from that text because to do so would violate its express terms and those of inferior laws adopted according to its terms. The argument that it can be is shoe-horning, imagining an after-the-fact justification for something the president had done or authorized be done, regardless of the laws that create his office and which define the scope of his permitted action.
The “Commander-in-Chief” authority is a subset of the President’s overall authority. It applies to his role as the civilian political head of the armed forces. In his execution of that responsibility, the President is bound to comply with the express terms of the Constitution, laws enacted pursuant thereto, and his oath of office. Those laws include statutes, treaties and binding customs which specifically prohibit the torture he engaged in or authorized.
Mr. Bush’s first obligation when acting as President – in any capacity – is to ensure that the law is faithfully executed, even or especially when he is protecting us against all enemies, foreign and domestic. That’s what the people expect – demand – of him in exchange for acknowledging his right to lead, in giving him the power to do so, and in committing their lives and sacred treasure to pay for it. George W. Bush has failed to do that, with knowledge and intent, and regardless of the costs or consequences.
Incidentally, just did a search on “Youngstown” in both parts, and it doesn’t appear once.
Not that I’m surprised.
That’s grounds for removal of a tenured professor, isn’t it?
In the immortal words of Reggie Walton, “With all due respect, these are intelligent people, but I would not accept this brief from a first year law student.”
How can Boalt Hall let Yoo teach after this becomes public?
60 – it’s amazing to me how many of them pushed so hard when they had a very rigid chain of command structure that tied their hands in a hundred ways. To your 58 -not only does roaming the world hunting for nonUS torture fodder for a beserking President seem to be kind of the height of ultra vires in general, but I keep going back to the prohibitions on attainder that are specified in the Constitution. NOTHING is supposed to legalize the imposition of pains and penalties without due process. I don’t think you can legalize by Executive Order something that the Constitution prevents Congress from legalizing by bill.
I’ve been here too much today- will have to go cold turkey tomorrow to catchup.
Last quick comment -the noforn in Secret Noforn means:
Not Releasable to Foreign Nationals/Governments/Non-US Citizens
So it seems like they didn’t want our allies in the GWOT to know what kind of “interrogation authorizations” Yoo was handing out.
Good catch. None of those governments, except a monarch or two and juntas established by military force, believe in the death penalty or “right to torture”. Their basic laws, like ours, and more importantly, their cultures, prohibit it. No point in alienating them by acknowledging that we were ready to jettison our common legal and social heritage because a handful of nasty murderers pissed us off.
I found his parents. Also his resume, from when he was nominated, at courtinginfluence. This was what I found interesting, the fast rise after leaving the military:
l
And from Davidson’s website:
I don’t know if he has family connections – can’t track down his parents other than his birth – but he certainly has some kind of connection.
How come nobody else is reporting this yet? I see the AP story but it’s not on anybody’s front page.
The SF Chronicle has the AP story with the time 18:23 PDT.
I’d guess that various places will have it on page one tomorrow, but they’re still working on their particular articles and don’t feel pressed to rush it to the front of their websites.
. . . like the WaPo:
Thanks, Peterr. They say:
As I had previously speculated. So long they were only interested in getting the information (so goes the ‘logic’), any torture that may or may not have occurred along the way would be purely incidental, and therefore not actionable.
Speechless to see it actually confirmed. Speechless.
Well, the OLC is within DOJ and DOJ can classify info, but IMO the larger issue is one that is writ very large indeed with respect to something like torture and like the wiretap program and that is that to the extent the OLC memo was in effect acting as a judicial decision, you have a hard row to hoe to justify how the US govt can generate “secret law” in any fashion. If OLC is generating an opinion for reliance and Congress and the courts and the citizens have access to that opinion and its legal reasoning – that’s one thing, but I just don’t see how you generate “secret law” constiutitonally. Which IMO goes pretty far to answering the “good faith” issue vis a vis telecoms right there. fwiw
Just a guess here, but it seems a strong possibility that the JAGs pushed for the disclosure of Yoo’s memoranda.
As part of the background on the JAG’s opposition to Yoo and his memoranda, this is an interesting read from the Belgravia Dispatch:
Note that Alberto J. Mora was the General Counsel of the US Navy and wrote a 22 page “memo”. I’ve been unable to located that memo on the Internet since the New Yorker link is dead.
However, the New Yorker article entitled “The Memo – How an internal effort to ban the abuse and torture of detainees was thwarted” is still live and it is a good read.
Now that’s an interesting angle. When we notice that there is a certain high profile pre-trial hearing later this month, another reason for getting this out there now appears:
Gitmo is coming back into the news, and rather than have this come out in the midst of those trials, perhaps someone thought that it would be better to come out on its own — maybe hoping it would get lost in the Obama-Clinton pie fights in Pennsylvania.
If so, that could really backfire if Obama and Clinton latch on to this and wrap it around McCain’s neck. “This is the thinking that McCain wants to endorse, when he backs President Bush on torture?”
You know, they may also be dumping this to try to prevent Davis from getting on the stand.
Just back. Going to try to read these things if I can stay awake (man you would not believe all the spring bloom this year. Unbelievable and pretty, but it’s killing me) I think your point on Davis is a pretty astute thought. May not be the only reason, but that situation almost certainly has to be part of it.
Allowing Davis on the stand, able to offer unrestricted answers to defense questions? Gotta scare the bejeezus out of the old Cheney/Rumsfeld/Haynes crowd.
How would this prevent him from testifying?
Given their past action to keep him from testifying to Congress, it seems they can pretty much do that anyway (or try to at least). How do these memos change the dynamic around Davis being allowed to testify?
Not sure it would. It depends on the scope for which the defendants could convince the judge to allow Davis to testify. If it’s to things that Haynes said (such as “we can’t have acquittals”) then I suspect he’ll still be on the stand. If it’s just to the underlying logic of the treatment of detainees, who knows…
No, maybe not necessarily about preventing taking the stand (although that effort will be made), but I can see an argument that anything in the memos is beyond the scope of Davis testimony because he could not be the “best evidence” on any of that (assuming he was not familiar with the memos). This is a pretty asinine argument, but I can see it working in this setting. Conversely, it may be to draw the first blood and serve as justification for potential testimony he might give on the quality of evidence from detainees and how it may have been obtained. This much more likely really than the first thought. I dunno, I just don’t know or understand the process for these Kanga Kourts well enough.
That’s good. Yoo characterizing Mora’s views as “legal policy” rather than the law, policy the administration might accept – or reject. But his views are “the law”, despite having been rescinded as soon as real lawyers above him in the chain of command read his work. Gotta go with Mora on that one.
As I recall, one reason Mora resigned was because Haynes consistently cut him and other senior JAG’s out of the loop – just as Team Cheney did the same in the White House, at the DOJ and in Congress – on novel legal and administrative issues, instead Cheneying them with fait accompli that they were under orders not to contest.
Seems to me this administration has little but disrespect for uniformed officers and the law, except when they can be used as props to violate the principals each stands for. “Support the Troops”, my ass. That’s not what these guys do; they just cover their own.
So the news on the Bybee memo is breaking while Bush is overseas trying to negotiate deals with the Poles, the Czechs, the Russians and NATO.
Interesting timing.
-G
Excellent point. Though I rather suspect the Ukrainians are more likely to be holding of “Gitmo plus” prisoners–you’d think the Poles would have learned their lesson.
Does anyone know where Cheney is, and whether or not he is angrily stamping his feet over this document release in his undisclosed rabbit hole?
Kentucky. He’s out on the road again.
Somewhat germane: Theoretical paper 2006-2007 with appendix applying numeric theory for redesign of intell oversight; authored at Boalt.
Thanks very much, all of you who have posted on this.
As a former bureaucrat, one thing that strikes me is the underhandedness of Yoo’s having this elaborate 38-page memorandum all ready to go on a Saturday. Talk about lurking.
I apologize for going on memory here.
But this haunts me: in some Yoo (I believe) torture memo, an issue presented was whether the President could crush (I believe the verb was) the testicles of a 10-year-old boy in order to facilitate the interrogation of his father. That last is my euphemism. Can’t recall the original.
If this was a hypothetical, it is the wildest hypothetical I ever have seen. What point could it possibly help elucidate?
And yet — the sons of Khalid Sheik Mohammed were 7 and 9, respectively, when Pakistan picked them up and turned them over to U.S. authorities. I have read that the kids were interrogated about their father, and tortured with insects put on their legs, but that they had a psychologist to prevent psychological harm. As if that would do it.
As far as I know these kids are still, and appallingly, in U.S. custody. Prisoners.
What if it wasn’t a hypothetical?
That was from a debate that took place in Chicago in December 2005 between John Yoo and Doug Cassel of Notre Dame. See http://rwor.org/a/028/john-yoo.html
Sez Leahy:
Points up the Why this one? / Why now? question.
After slogging through pages and pages of juvenile rationalizations for torture, I came to this head-exploding statement (referring to an Israeli court decision banning a set of interrogation techniques as too hideous even for them):
Nonetheless, the decision is still best read as indicating that the acts at issue did not constitute torture.
85 – I think that was from a talk with Yoo as opposed to a memo, but the concept that you would torture without the “intent” to torture because you were trying to interrogate is as banal as saying you would murder someone for their money without the “intent” to murder because it was just a step towards getting the money. By making them dead.
As to the kids – who knows what has happened. If they are alive and are ever going to be produced, they will no longer look like children, that’s for sure. It’s been years and no one in Congress ever mentions them. Or their mother. But one of the GITMO detainees (I think the only one we haven’t released back to Britain) had DOJ go after his ability to even talk to his lawyer, much less testify, about what happened to him before he made it to GITMO and IIRC he is the detainee who also says he was held for a time at the same facility where the children were being tortured.
But the threats to kill family members as an accepted interrogation technique sure show up in the memos solicited and approved by the Man Who Comey and Goldsmith Wanted To Make Judge.
Thank God for Pat Leahy or Haynes would have been snuck in.
EW, I’m emailing you the 22 page Mora torture memo (pdf).
Also here’s bio of Mary Walker, another blond and devout evangelical…
http://www.sourcewatch.org/ind…..ary_Walker
In that same article, Marty claims that
thereby laying moral (and possible legal) responsibility for the abuses Abu Ghraib at the feet of Yoo and Miller, who could no doubt implicate people yet higher in the chain of command.
A few bad apples, indeed!