Often as a lay person trying to keep up with the parsing and other kabuki done by the Bushies to make it legal to do the EIT and whatever the fuck they called it – all of this was just smoke and mirrors – because all of the EITs were in fact criminal as they all are violation of Article Two of the Geneva Conventions – It to me seems simple -any one who aided and abetted torture — or covering up the torture after the fact committed a crime – and must be punished to the fullest extent of the law .

Date of DOD document (almost certainly from JPRA to DOD’s General Counsel)–of either 46- or 59-pages long, providing legal advice. This document was in OLC custody in 2007, but it could not be located this year.

And why wouldn’t JPRA have a copy? Somebody there wrote it…

I’m syncing up with this. You can say with certainty that the July 26 verbal authorization was for waterboarding, per SSCI narrative p. 4.

On July 24, 2002, according to CIA records, OLC orally advised the CIA
that the Attorney General had concluded that certain proposed interrogation
techniques were lawful and, on July 26, that the use of waterboarding was lawful.

When I look at the timeline, I don’t ’see’ the scholarly, professional pursuit of a ‘best practices’ approach to Interrogations.

I see a very narrowly cobbled-together line of twisted words and flawed logic, composed of ‘cherry-picked’ pieces from Ideologically ‘like-minded’ sources that Implement Unquestioningly – in a way that is Outrageous to ’see’ in plain sight – a Policy of Torture. Professionally speaking, there is No Ethic of Responsibility on Display Here.

It ‘looks’ as if 1) the Policy was ‘decided’, and, then – after – 2) the Facts were ‘fixed’ into Covering Legal Memos by Toady Lawyers, in order to Falsely Launch a Policy of Torture – very narrowly presented in the OLC Memos as more ‘Justified’ than Just.

It seems most accurate to say that these Lawyers were ‘loyally’ following the Orders of their Political Master, in the belief that Bush’s word was ‘not illegal’ – they Acted as the Enablers for the Nixonian ‘Divine Right of Presidents’ Mentality – and it shows.

Bush to DoJ:

“We’ve Waterboarded already, on our own Unlimited Power, and We’re Going to Waterboard Some More.

Now, tell us it’s Legal, and then Make It So.

Include provisioning for Retroactive Immunity for anything that may have happened before.“

I mean, don’t the forensics of all this suggest that these documents are only barely hiding some tyrannical fingerprints underneath the smudge marks of the Lawyers’ handkerchiefs?

EW – relative to the “in anticipation of litigation” issue you may want to look, timeline-wise, at the June-July 2002 dates as they pertain to the following:

(1) Jose Padilla being (a) arrested and (b) shifted from civilian to military custody and (c) (according to the allegations raised in his civilian criminal trial) tortured while in military custody;
(2) Zacharias Moussaoui and his pending charges and trials for allegedly being the 20th hijacker (the first of many such guys);
(3) the whole military commission thing.

As to Padilla, remember that he had civilian attorneys at that time, who were litigating on his behalf.
From wikipedia:

On May 8, 2002, Padilla, a U.S. citizen, flew from Pakistan to Chicago’s O’Hare International Airport. As he stepped off the plane, Padilla was apprehended by federal agents executing a material witness warrant issued by the United States District Court for the Southern District of New York in connection with its grand jury investigation into the September 11th terrorist attacks. Initially Padilla was considered a “material witness,” without charges filed, and given only very limited access to legal counsel. His designation was later changed to “enemy combatant,” which meant that he, like many non-citizen suspects in the War on Terror, could be imprisoned indefinitely, and without legal recourse or access.

Padilla’s attorney, Donna Newman, claiming to act as his next friend and on his behalf, filed a petition for habeas corpus in the United States District Court for the Southern District of New York. On December 4, 2002, the court denied the petition and held that the President of the United States, as Commander-in-Chief had the authority to designate as an “enemy combatant” an American citizen captured on American soil, and, through the Secretary of Defense, to detain him for the duration of armed conflict with al-Qaida.

From the actual S.Ct. decision (written by Rehnquist):

Because we do not decide the merits, we only briefly recount the relevant facts. On May 8, 2002, Padilla flew from Pakistan to Chicago’s O’Hare International Airport. As he stepped off the plane, Padilla was apprehended by federal agents executing a material witness warrant issued by the United States District Court for the Southern District of New York (Southern District) in connection with its grand jury investigation into the September 11th terrorist attacks. Padilla was then transported to New York, where he was held in federal criminal custody. On May 22, acting through appointed counsel, Padilla moved to vacate the material witness warrant.

Padilla’s motion was still pending when, on June 9, the President issued an order to Secretary of Defense Donald H. Rumsfeld designating Padilla an “enemy combatant” and directing the Secretary to detain him in military custody. App. D to Brief for Petitioner 5a (June 9 Order). In support of this action, the President invoked his authority as “Commander in Chief of the U. S. armed forces” and the Authorization for Use of Military Force Joint Resolution, Pub. L. 107-40, 115 Stat. 224 (AUMF),1 enacted by Congress on September 18, 2001. June 9 Order 5a. The President also made several factual findings explaining his decision to designate Padilla an enemy combatant.2 Based on these findings, the President concluded that it is “consistent with U. S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as an enemy combatant.” Id., at 6a.

That same day, Padilla was taken into custody by Department of Defense officials and transported to the Consolidated Naval Brig in Charleston, South Carolina.3 He has been held there ever since.

On June 11, Padilla’s counsel, claiming to act as his next friend, filed in the Southern District a habeas corpus petition under 28 U. S. C. §2241. The petition, as amended, alleged that Padilla’s military detention violates the Fourth, Fifth, and Sixth Amendments and the Suspension Clause, Art. I, §9, cl. 2, of the United States Constitution. The amended petition named as respondents President Bush, Secretary Rumsfeld, and Melanie A. Marr, Commander of the Consolidated Naval Brig.

The Government moved to dismiss, arguing that Commander Marr, as Padilla’s immediate custodian, is the only proper respondent to his habeas petition, and that the District Court lacks jurisdiction over Commander Marr because she is located outside the Southern District. On the merits, the Government contended that the President has authority to detain Padilla militarily pursuant to the Commander in Chief Clause of the Constitution, Art. II, §2, cl. 1, the congressional AUMF, and this Court’s decision in Ex parte Quirin, 317 U. S. 1 (1942).

The District Court issued its decision in December 2002.

End of part one of my comment

Continuation of my comment at 32 on this thread

Here is a copy of Padilla’s amended writ of habeas corpus, filed June 19, 2002.

Here is a copy of the government’s motion to dismiss the Padilla habeas petition, filed June 26, 2002.

This is the government’s supplemental motion – as to dismissing the amended petition for habeas corpus – filed August 26, 2002.

This is the “Unclassified Mobbs Declaration“, laying out next-to-no facts to support PAdilla’s military detention, also filed August 27, 2002.

End of part three of my comment

Continuation of my comment at 34 on this thread

(Some) Documents on the Padilla case are collected here.

If you scroll down on that same page, you will also find a plethora of documents relative to both the Moussaoui and the John Walker Lindh cases, both of which were going hot and heavy, litigation-wise, with filings in the summer of 2002.

Also note that, a couple weeks ago, the Ninth Circuit pounded the government for the way it had used the material witness statute to lock people up in the aftermath of 9/11/01 and allowed a private suit against Ashcroft for those violations to go forward. It’s worth noting that the abuses of the material witness statute which were in issue in that Ninth Circuit case began in June-July of 2002. It’s also worth noting that the case for which the person suing Ashcroft was supposedly a material witness (and therefore was detained) was the Idaho federal case where a computer programmer and website developer was ultimately acquitted of all the terrorism and most of the immigration violation charges against him ( the jury hung on the remaining charges) and the feds agreed not to reprosecute if he went back to Saudi.

End of comment

Mary, I should add that the History Commons summary of the article is a quite a bit off as I never reported that Zubaydah was assigned military attorneys (I actually use military attorneys as the phrase and not JAGs) but rather there was simply some military lawyers who protested what he was subjected to and it’s unclear whether they witnessed torture before the August memos or were briefed about it. In my report I don’t say either way because no one I spoke to knew. They only knew that military lawyers protested what they believed was torture (my word choice).

But what may help clarify this a bit is Zubaydah’s diaries. He told me there is a reference in Zubaydah’s diaries to an FBI agent and a military attorney but he could not say what the context is because the government made a move to put volumes 1-6 under a protective order.

This is from a recent filing Mickum’s team made related to the government’s continued suppression of Zubaydah’s diaries.

Having finally realized that volumes 1-6 of Petitioner’s diary cannot properly be deemed classified, the Government now submits a perfunctory and clearly deficient request to declare that each and every page of the first six volumes of Petitioner’s diary are “protected” instead. In doing so, openly flouting two orders from the District of Columbia Circuit and a recent order from Judge Hogan, the Government asks this Court for permission to do what the other courts have ordered it may not do. It also perpetuates a long pattern of abuse by improperly withholding information from disclosure, which is the subject of many pending motions before this Court. The Government’s request to designate over 1,500 pages of information as protected, based exclusively on a cursory assertion that some information contained therein is pertinent to their counterterrorism investigations, falls breathtakingly short of the legal threshold required to justify declaring unclassified information as protected. The Government is well aware of the standard and its motion should be summarily denied.

And here is the mention of the FBI agent (I am going to assume, and I may be wrong here, that the FBI agent is Ali Soufan or Steve Gaudin):

While Petitioner has no objection to sealing the names ofthe persons who participated in the translation of Petitioner’s diary (which are the only United States government personnel whose names appear in these 1,500 pages), Petitioner makes this concession in regard only to these particular names (REDACTED and then another paragraph redacted) in this particular context (as found on the cover pages to the English translations of Petitioner’s diary, volumes 1-6). Petitioner does not acquiesce to the wholesale sealing of Petitioner’s diary and its translation because the name of an FBI agent or other U.S. government personnel is listed on a page therein. Contrary to the Government’s insinuation, the fact that a named or otherwise identified person is “United States government personnel” is not reason, in and of itself, to designate that person’s name as protected. Most importantly, even if there were some particular names on a couple of lines on the cover pages of the diary translations that could have legitimately been deemed “protected” had the Government properly sought to do so, there
can be no justification for sealing the hundreds of pages that follow, much less the original Arabic versions.

Sorry for such a long rambling comment. Hope this makes sense

here you go (quicker than I thought):

http://www.pubrecord.org/oppos…..tected.pdf

and then this footnote:

10 On July 1, 2009, Petitioner’s counsel requested clarification from the Government as to whether Petitioner’s counsel may discuss the specific diary entries that form the basis of the allegations against Petitioner in the Government’s factual return. On July 6, the Government responded that Petitioner’s counsel could discuss these passage as long as the discussion is limited to identifying and discussing the diary passages themselves and does not involve discussing the contents the classified factual return (i.e., the Government’s citation to those passages).

July 22, 2002 [John Yoo]
Applicability of the Convention Against Torture
Still secret. Subject of FOIA request filed by ACLU on 12/09/08.

Concludes that the first fifteen articles of the Convention Against Torture are non-self executing and place no affirmative obligations on the Executive Branch. Cited in John Yoo’s 03/14/03 memo concerning military interrogation of alien unlawful combatants.

How would this unreleased Memo fit into this timeline?

Thank you EW! A huge effort.

Thank you scribe, Jason, Jeff, Garrett, Mary and of course, bmaz for the amazing comments.

It appears it would be interesting to look at all the torture cases in total and compile a timeline/list of destroyed, denied and disappeared evidence. The frequency of such activity is quite systemic. I have lost track of the number of times in each case this has happened and usually right at the time of discovery.

Remember, too, that in Padilla’s criminal trial, all of a sudden DVDs of his interrogations while in the Charleston Brig started disappearing about the same time as his attorneys started reviewing the discovery.

I have also lost count on the number of improper classifications. Has anyone complied a list of these improper classifications by date/case and type of material-content?

When looking at this in total, it screams “cover activity”.

Which is only employed to hide criminal activity.