Haynes’ Multiple Choice Memos
Back in May, I wrote a post observing that when David Addington testified before the House Judiciary Committee, he seemed to be carefully choosing which August 1, 2002 Bybee Memo he answered questions about. For example, when Debbie Wasserman Schultz asks Addington whether he discussed torture methods described in the memo the Committee had been discussing (by context, the Bybee One memo), he response that that memo didn’t discuss torture methods.
Ms. WASSERMAN SCHULTZ. On any of the trips, did you discuss interrogation methods that were directly referenced in the memo that we have been discussing here for this hearing?
Mr. ADDINGTON. I am not sure I remember this memo having methods discussed in it, frankly. [my emphasis]
So he never answers a much more interesting question–whether he shared the Bybee Two memo–which did list torture methods–with those at Gitmo.
Curiously, Jim Haynes seems to be doing the same in the Questions for the Record following up on his testimony before the Senate Armed Services Committee.
36. Senator CLINTON. Mr. Haynes, do you recall when you received the August 1, 2002, OLC memorandum from Jay Bybee to Attorney General Gonzales regarding the legality of interrogation methods?
Mr. HAYNES. I do not recall precisely when I received a copy of the August 1, 2002 opinion interpreting 18 U.S.C. §§ 2340–2340A. Too much time has passed and I have now seen the memo in so many contexts that I can no longer be certain when I saw it for the first time. I cannot even recall whether I simply read the opinion al some point or whether I received a copy of the opinion and, if so, who transmitted the copy. I did, eventually, get a copy of that opinion, but I do not remember when I first got it.
From the context, Hillary may have referred to the Bybee One memo (the one equating torture with organ failure) using a description more apt for the Bybee Two memo (since the latter discussed the legality of interrogation methods).
But regardless of what Hillary meant to ask, Haynes crafts his answer to answer the question he wants to answer. She asks about the memo describing interrogation methods (which would be Bybee Two); he responds about the memo interpreting the statute (which would by Bybee One).
Someone really ought to ask these thugs these same questions about the Bybee Two memo.
Note–DWS was asking Addington whether they shared the memo at GItmo on their field trip on September 25, 2002. Assume, for the moment, that Addington did share that memo, which would explain why he shifted to make sure the question applied to the Bybee One, not the Bybee Two memo.
Recall that Jim Haynes was on that field trip as well.
Thanks for the post EW. THAT is a key point about Bybee Two.
Why not just ask the folks who were at Gitmo to whom the memo was likely shared? Or did that produce nothing during the hearings either?
Typo in Bybee Two, second to last paragraph, a word is missing (see XXXX). Mistakes often occur in pieces that are read and re-read because the author’s mind makes the correction for them. It looks like the word choice was labored over (because the sentence is stoopid) and a mistake was made as a result.
OT for skdadl-
You may be able to find the corn you’re wanting at the Organic Seed Alliance.
Also from the May 2 ew link above:
Recall that ew has established that Addington kept some old file about torture from his days at DOD under Cheney. He probably discussed those papers and not the SERE training manuals.
Here’s the link
http://emptywheel.firedoglake……ized-safe/
maryo2, I seem to remember EW’s ref to “those old papers Addington/Cheney kept from back when Cheney was Dir DOD”, and think that ref was to KUBARK: Counterintelligence Interrogation. The online version (with many redactions) is dated July, 1963.
If Cheney/Addington/Yoo used KUBARK as the model for their pyschopathic fantasies, they ignored the warnings included there. I guess The Meisters considered them “quaint”.
O/T: Rayne has a fine diary posted yesterday about torture and accountability (and lack thereof). It has already fallen off the listing at Seminal. IMO it deserves wider readership. How about taking a look and weighing in?
KUBARK is a declassified CIA manual for interrogation.
There is a still-classified (and compartmentalized) Special Access Program that has been active since the mid-1980’s started by the Army’s ISA (Intelligence Support Activity).
The Activity has since been disbanded and declassified, which is the only reason I mention it. But they were running around South America torturing and interrogating people in the 1980’s. We all know that. What many people don’t know is the fruits of their labor was recorded in exquisite detail. That information was put into a USAP (Unacknowledged Special Access Program) within the SAP the Intelligence Support Activity used to reside in.
There are five layers of compartmentalization:
– TS/SCI material
– Special Access Programs (active control) (acknowledged)
– Special Access Programs (active control) (unacknowledged)(waived)
– Unacknowledged Special Access Programs (waived)
– Unacknowledged Special Access Programs within other Unacknowledged Special Access Programs
Thank you, SKIMPYPENGUIN, though I’m dizzy from sorting all that out. heh,heh
Can those ‘exquisite details’ be accessed? Only by the Specials, huh?
Skimpy, I would greatly appreciate your opinion of my diary posted today at Seminal about 25 year black ops operative, Chip Tatum. The video there is long, but spellbinding. [he disappeared in 1998 and his tortured body washed ashore in Panama early in 2007, without a face.]
I would really appreciate the opinions of the Vets here at the lake on the Chip Tatum story.
The “School of Americas” manual.
Which was (and still is) a compartmentalized program.
Marcy…you have the eyes of a raptor. These guys are slipperier than conger eels sauteed in olive oil. Every inflection seems to be deception on their part.
Right on, Marcy! Keep up the heat on this question, because no doubt you are correct and Addington is using very legalistic threading of the needle to mislead Congress (and the rest of us).
EW – don’t forget Chertoff in all these overlays.
Things have been all over the ballpark re: him and his role, although this article:
http://www.nytimes.com/2005/01……html?_r=2
indicates that he was also giving out some advice, likely oral, and likely targeted towards how prosecutions could be avoided.
This article, and others, also discuss that Chertoff was more a fan of trials of detainees and there have been references to the fact that he pretty much told Bushco that you could not “clean team” coerced statements – so it sounds like he may have been playing both the angel and the devil on the shoulders roles – arguing for trials and that it would be impossible to clean team torture testimony in a regular court proceeding (which would mesh with reports that he was very specifically excluded from the original Flanigan & co drafting of military commissions directives) and yet also advising on how to make sure the CIA torturers would not face prosecution from his dept if they did participate. That is only spec, but that’s what the conglomertion of stories, most of which are unsourced and don’t seem very reliable, seem to point at.
. Be nice to know the context and evidentiary trail on that “discussion”
Some of what the article addresses as things that Chertoff supposedly had reservations about (mind altering drugs, threats to family members and “pyschoogical procedures designed to profoundly disrupt a detainee’s personality”) sounds as if you might have certain things which were done (like threats to family members and giving drugs) which Chertoff wouldn’t bless as exempt from prosecution. But there doesn’t seem to have been much digging on his role(s).
In any event, re: Bybee 2, he very definitely wanted, even back in early 2005 when the article came out, to make sure that he was NOT tied to it in any way, whereas some anonymous sources (current and former administration officials) wanted just the opposite.
One other item – apparently Levin’s Dec 2004 memo
http://www.usdoj.gov/olc/18usc23402340a2.htm
was getting people worried
Which pretty much explains the whole of the Jan 2005 article – as a send up by the “anonymous” sources to Chertoff they they would make sure he was tied in tight. So when did those criminal prosecutions get declined? I know the referrals supposedly was made in June, 2004, but if, in Jan 2005, the former head of the Crim Div that referred the cases over has an article come out like the one in the NYT, which says – hey, looks like your boss already pre-okayed everything – and if his protege (Fisher) is put in charge of Crim Div a bit after the NYT article and gets a cram through recess appointment after that – well, how much does it look like anything will come back with charges when there is that article saying that Chertoff ok’d it all?
BTW – I was trying to find the name of the crim div head before Fisher, bc I think he was one of the lawyers who took the torture field trip to GITMO too, and I came across something in history commons without a cite that I can find, but that is pretty interesting.
This entry:
http://www.historycommons.org/…..hieldretro
indicates that somehow or another, Zubaydah may have had military lawyers already, as early as July, 2002.
This may be old hat to many, but I don’t think I ever processed the fact that the reason they may have gotten around to issuing the Aug 1, 2002 memos, even though they had been torturing Zubaydah and others since before then, was because of military lawyer complaints.
If the History Commons reference is correct (the link is dead – and I don’t know if it is actually correct) then something else comes to mind – which is that possibly Bushco, after torturing what they wanted out of the detainees, was going to have a hurried up, relatively private military commission to “convict” them (something Flanigan had laid the groundwork for, saying the President could hold one anywhere to pretty much anyone) and if the reason Zubaydah is even still alive today is bc even way back then, some military lawyers wouldn’t play ball.
If the grand design for the commissions hit a snag bc military JAG were assigned to the secret detainees for the purposes of a sham trial, but they wouldn’t go along, that would be some pretty interesting info. I don’t recall anything about that in Levin’s report – but it also would impact the reason and rationale for the OLC opinions. If their already suspicious circumstances were further colored by the fact that defense lawyers for Zubaydah were alleging torture and war crimes in his treatment – that would be information worth having.
And it would make the ultimate sell out of DOJ – hanging those lawyers who were trying to do the right thing out to dry – that much worse.
It would also explain why Chertoff was being asked about clean teaming way back when and raises a lot of other thoughts – but I’m too rambling already.
Would put a hell of a further blight on the proffered defense on the torture tape destruction too (which already was patently absurd).
Keep after Chertoff. Good stuff!
“and yet also advising on how to make sure the CIA torturers would not face prosecution from his dept if they did participate.”
would the torture “contractors” fall under the same guidelines/laws?
———————————————————-
“Despite his friendly relationship with some Democrats, Chertoff took an active role in the Whitewater investigation against Bill and Hillary Clinton: he was special counsel for the Senate Whitewater Committee studying allegations against the Clintons. When Chertoff faced Senate confirmation in 2003 for a federal judgeship, Hillary Clinton, then a Senator from New York, cast the lone dissenting vote against Chertoff’s confirmation. She explained that her vote was in protest of the way junior White House staffers were “very badly treated” by Chertoff’s staff during the Whitewater investigation.[6]”
Chertoff
http://en.wikipedia.org/wiki/Michael_Chertoff
————————————————
Did Chertoff have anything to do with these Israeli students being released just after 9/11?
http://www.historycommons.org/….._students_
Mary
I’m not sure the referrals were made in 2004. I sort of suspect they were made earlier, as Helgerson found them. I think that partly because of teh way the torture apologists have been parsing that there were no referrals at the end of the process.
I wouldn’t be surprised if they came earlier, although from this letter to Durbin
http://www.talkingpointsmemo.c…..nee-cases/
from Brian Benzckowski, OIG was still making referrals re: crim conduct @CIA (not necessarily re: the torture program – the nature isn’t clear) in 2007 (”Since January 2007, there have been four additional referrals by the OIG to the EDVA, all of which have been declined.”)
But there’s never instant action on referrals and I’m interested in the timeline and what seems like some almost deliberate vagueness around some of the dates. You have Bybee/Yoo in 2002 cough out absolute nonsense on “specific intent” to support an approach that as long as you were also intending to ask a question, it didn’t matter if you knew the natural and probable and reasonably foreseeable consequences of your act were torture.
This may or may not have been preceded in July 2002 by military counsel having been appointed for Zubaydah (you are way more up to snuff on Levin’s stuff than I am, do you remember seeing anything about that – such early appointment of counsel for AZ or why – if it happened, plans for an impending Flaniganesque military commission is the only thing I can think of) and complaining of how he was treated. If it did happen, it gives some better context to things that came after.
In any event, you get the Bybee memos and it very much sounds like you also get consultations of some kind involving Chertoff during 2002 and 2003. It’s Rockefeller’s report that nails down his attendance at the meeting with Levin (who was FBI at the time) isn’t it? You also have Chertoff on the torture field trip in Sept 2002 and seemingly working a lot harder than most of the participants to keep his presence on that trip quiet. And you have some kind of conflicting stories about Chertoff, which might not be all that conflicting if he, while arguing for trials of the suspects and also arguing for keeping FBI out of the interrogations, also was willing to offer up arguments and rationales for not charging the CIA program participants with crimes. But even though he offers them up, he won’t put them in writing or give any written non-prosecution agreement of any kind (although how much has been pushed on this front?).
Then he goes off to be a Judge (in 2003). Referrals begin coming in and Chris Wray – who was with Fisher and Chertoff on the torture fieldtrip IIRC – is now head at Crim Div. I’m not a fan of his from what I’ve seen in print, but he was a real litigator with real skills and knowledge (and I think he’s one of the ones who was going to walk out with Comey) and if the referrals started coming in and he got access to some of the memos, he’d have known in a heartbeat that Yoo and Bybee had screwed the pooch.
He may also have been invovled in discussions with Chertoff when defenses for CIA program participants were discussed. So at Main Justice he is coordinating referring the referrals out to McNulty’s kids at EDVA and you have in the background the issue of DOJ’s former head of crim div, as well as these opinions regarding intent that are clearly wrong and so clearly that no one could reasonably rely on the assertion that its ok to to do things you know are torture as long as you were going to ask a question too (and from the Deuce Martinez article, it’s not even clear that the active torture invovled active questions or just “softening up” for later questioning).
Goldsmith is talking to Comey some, Comey to Levin later, etc. and one thing Levin and Comey do that I’ll give credit for is to get out the Dec 2004 opinion, which in addition to the splashier aspects on its face, it gets to the more nitty gritty issue of specific intent and that it is NOT a defense against torture to say that you didn’t have “specific intent” for the natural and probable torture result of your actions, if you were also asking a question.
And apparently that causes a lot of concern, even as watered down as Levin could make it. Why the memo was just to Comey, though, and not CC’d to those at CIA who had received the former advice or to the AG – is kind of an interesting thing to extrapolate. Did any referrals include Rizzo or Ashcroft so that those guys shouldn’t really be utilizing OLC for further requests on matters directly involving them? This memo pretty muich had to go out while referrals were out but investigations not finished, or possibly even in response to some initial referrals coming back with declinations based on an incorrect “specific intent” standard from OLC.
Anyway – then Chertoff pops off the court and back on the radar as DHS nominee and suddenly people are popping up to give all that info in the early 2005 story – previously pretty undiscussed topics about Chertoff being involved in crafting the defenses for torturers to use against crim div investigations and they also offer up gratuitously (as if to make sure Chertoff, who had been away from the Dept and on the bench knew about it) the info that there was a new Dec 2004 memo that is causing worry and that there are several guys out there just waiting to pull Chertoff in if that memo has the “wrong” result.
And there sits Wray, who along with Rob Hur wrote a review of Ashcroft’s book that show them as idolizing Ashcroft and who was Chertoff’s second and who went on the torture field trip etc., as head of Crim Div where action was going to meet its final decisions. A crim div that Comey had specifically cut out of any play in Fitzgerald’s investigation. And Wray is not only watching crim referrals come in from OIG, he’s also watching as al-Marabh is taken away from Chicago prosecutors and is publically “deported” to Syria (despite the Arar fiasco) and he’s being asked to testify to Congress, where:
So not only are referrals coming in, public shipments to torture are being made on his watch and despite the Arar outcome. A guy he idolizes (later idolizes in print) is in the crosshairs on many of the authorizations; Thompson had specifically signed off on Arar’s shipment to torture earlier, his former direct boss is now getting print as being involved in torture defense creation for CIA, and McNulty is angling politically from his position as the head of EDVA (a place from which Comey would have likely been able to get info on the sly), which is handling the crim referrals and sending them back declined, with declinations that may well have been as flimsy as the Bybee memos – while Comey and Levin as putting out an official OLC memo that is shooting down the intent defense in part.
I kind of don’t wonder that Wray left. You also had Abramoff hot, and while it’s died down now, the Frist/HCA stuff. And voila – there was Alice Fisher they could nab for Crim Div, a perfect intersect of torture field trips, DOJ crim div involvement in the torture program, and Abramoff and Delay intersect and an HCA intersect. It’s pretty ez to see how she could have been important enough to get in that a recess appointment was almost required.
The upshot of all that rambling is that I wish we had more details on names and timing on referrals, investigations, declinations, etc. The info that has been put out is very vague – no even mentioning the nature of the referrals. And now Helgerson is going back to old Bybee stances and claiming that there just couldn’t have been any criminal intent – even though he made the referrals to start with.
Just how incestuous where those referrals and the reviews and how is it that McNulty, whose crew had been handling the torture referrals (and also the Moussaoui trial where DOJ committed fraud on the court) and who ended up in the center of the USA firings, coming on as DAG. And you had a Senate Judiciary committee, with Fisher getting the nod at Crim Div and Comey leaving, wondering how the hell it was that the top levels of DOJ were so bereft of anyone with crim lit experience when supposedly we were battling terrorism in part through DOJ.
It would make life easier if there were a nice set of time lines on the torture referrals too, but most of that info seems to be still being kept pretty vague.
I wonder if what’s needed isn’t a time line — although a time line list of data points would be helpful — but a map.
A visual map which shows the hand-offs and the missing handoffs.
Rather like a graphic of an audit trail.
I’m graphics challenged to visualize that – but it sounds like it could be really helpful – it would need the hard data points too, but it would convert a string of letters into a picture and that usually is a good thing.
Mary, thanks for another awesome comment. At the beginning of it, you wrote:
Can you or someone else explain this to me?
* Why, or on what grounds, would EDVA “decline” all of these referrals?
* Were all these Bush referrals, or were any done under Obama?
* Might the declinations have to do with sloppiness [my conjecture] in the way the referrals were made? IOW, were these pro forma referrals?
* Could Holder, or Durham, refer these cases again, with stronger briefs?
IANAL, so much of this stuff is over my head, but I’m trying to understand.
Bob in AZ
Hard to know why they declined, that is not normally made public knowledge and certainly wasn’t here. The most common rationale is “there was not a likelihood of conviction” – the DOJ generally desires to know they will likely win a case if they are going to file it. There are endless areas where they could foresee issues in most of these cases, especially since they were never worked up that hard. Problem is, they don’t want to go work up such cases because it opens a can of worms. So they hang their hat on the fact that the cases haven’t been worked up. Go figure.
They were likely all referred during Bush as far as I can tell; although that quote does not rule out one or two since January 20. Referrals from OIG are not necessarily traditional referrals for criminal prosecution, they can also be submitted for “review for consideration”. It is my understanding many of the OIG referrals were of this type, which leads back to the above paragraph concerns.
Technically, Holder (DOJ is who they get referred to; not by. Holder can certainly assign them – such as to an AUSA like Durham – who can make a charging determination or undertake further investigation.
Completely OT – but do stories come any weirder than this?
http://www.ticklethewire.com/2…..fbi-agent/
Let’s see -you intersect the FBI, the CIA’s CTC, the Pellicano case, Congressional Quarterly and Men in Black.
i made this point before, but
suppose,
of course it couldn’t be true,
that the whole torture defense “authorization” game, engineered by the ovp,
was a scam,
or, more accurately,
a scrim.
no parts seem to fit together;
all parts were intended to influence different bureaucratic constituencies.
thus allowing the ovp to hassle cia or dod into doing what ovp wanted done –
torture somebody,
anybody, but torture somebody!
torture who?
hell, any muslim who could be rounded up and jailed.
what? you want to know the charges.
“charges” were not necessary in this american system of justice.
p.s.
i don’t’ feel the least bit sorry or sympathetic toward the cia or dod
to borrow a phrase, “the cia is an ass”.
always has been an ass.
needs to be completely disassembled and rebuilt with a commanding set or moral principles in charge.
When it’s all parsed and peeled away, torture is a crime. These government lawyers conspired to aid and abet the commission of that crime. Ergo …
Yup.
Thread music for insomniacs with mp3 players:
Please forgive me for forgetting, but at what point did we know that there were two Bybee memos for 1 Aug 2002? I mean know of their very existence, not when they were declassified/published. How did we learn that, and when?
I’m not sure, but I’m glad EW and people like Rayne caught it.
They’re all over this.
Can’t take any credit for EW’s research, she is like a pitbull on crack with these details.
I’ll point out that leak(s) have been important, as EW’s comment at (26) shows. Even leaks of unclassified content which has been tightly held will help us make out the breadcrumb trail to the authorizing parties while showing just how subordinates were misled.
No, seriously, you guys are doing a great job.
I’m always impressed when I’m browsing FDL, or Atlantic Online, or the New Yorker, and I see accurate conclusions on classified topics. You guys figure it out via open-source and that is, in all seriousness, very impressive (and alarming, if the programs weren’t so reprehensible and illegal).
This is the way a government of, by and for the people should work. There should be very, very few closed doors.
Drives me insane that the same proponents of a free market are the ones who believe a lot of content should be hidden, whether because of the perception of proprietary rights, or government necessity. Without access to “perfect information,” market participants cannot make perfect market decisions.
Ditto the people when it comes to self-governance; poor information yields poor decisions.
I’d have to go back, but I’m pretty sure we learned of it in 2004, when the Bybee One got leaked to the press. Someone leaked both Bybee One and the existence of the Yoo DOD memo at the time, perhaps as a means to make it easier to withdraw Bybee One.
And of course, Bybee One was not classified, so they could do that without violating any classification laws.
Some non-sequitor
The Brits are investigating another torture referral,unrelated to Binyam Mohamed.
http://www.guardian.co.uk/worl…..s-miliband
And no one with the Obama administration is doing much about the death of this guy
http://en.wikipedia.org/wiki/M…..Al_Hanashi
at GITMO.
He’s there for 7 years and dies two or three weeks after getting a lawyer assigned to him and before they get a chance to interview him? All on Obama’s watch. And the guy who other prisoners elected to represent them was, according to Binyam Mohamed, taken in January, just days before Obama’s inaugeration, for a meeting with Admiral David Thomas (commander, jtfgitmo) and Col. David Vargo, commander of GITMO’s guard force and he doesn’t seem to have returned to population after that. Then he dies a few months later after getting a lawyer appointed to represent him. No independent investigation done.
Now Pakistan is reporting a pretty large raft of what appear to be military killings in SWAT. Luckily, we’ve got a guy in charge of AFPAK who understands using the military to disappear people, so I guess that’s good. And the new guy is now saying what the old guy said – we need more troops – and kind of leaving off the “for what” and “at what cost” bits too.
But Obama’s a good orator, so it’s all ok.
any chance addington and haynes were coached?
if so, by whom?
who might be the bush admin’s secret defense attorney on torture-related matters?
Perhaps it was Dr. Evil?!
Nah…on second thought, Dr. Evil could take some pointers from Addington and Cheney…