DOJ’s DOD Advice for CIA
I want to make another point about the Vaughn Index relating to OLC’s advice to the CIA. Document 13 and 14 (early March discussions between DOD and OLC on interrogation) have been referred to a third agency because–as DOD documents–it is not CIA’s place to decide whether to declassify them or not. Basically, DOJ is saying, "oops, these aren’t CIA documents, they’re DOD documents, so DOD needs to deal with this."
Fair enough.
But look at document 16. By date and length, we can say with some certainty that that document is the March 14, 2003 John Yoo memo for DOD (though note, the draft in the Vaughn Index is 80 pages, whereas the final is 81 pages).
DOJ does not say–as they do with the other DOD documents–that they have referred this to DOD for processing. Rather, they withhold it–with no consultation with DOD, apparently–by labeling it pre-decisional. Here’s how they describe it:
This is an 80-page draft OLC opinion to DOD consisting of draft advice regarding interrogations of alien unlawful combatants held outside the U.S., to include handwritten notations.
It appears that the reason they don’t have to refer this to DOD is because they’re withholding it for the deliberative value, and that comes–at least in part–from those hand-written notations.
Now, I find that interesting for two reasons. First, look at Document 15. It’s a 2-page (plus fax cover sheet) memo, dated March 7, 2003, from CIA’s Office of General Counsel to OLC asking for legal advice on detainee interrogations. March 7 is the day after Khalid Sheikh Mohammed’s torture began in earnest, so it’s possible that memo pertains to KSM (though that’s just a guess). Let’s just say I find that timing interesting.
Then there’s the suggestion–based on the fact that DOJ has not referred this to DOD for processing–that the notations on the March 14 Yoo memo came from someone at CIA. Is it possible that War Council member John Rizzo was helping Yoo write the March 14 DOD memo?
The whole thing–particularly the inclusion of a number of DOD documents in a CIA-related Vaughn Index completed under Steven Bradbury–suggests that DOD was not only reverse engineering its torture for CIA, but CIA was returning the favor by providing advice to DOD as it developed its own torture regime.
You know, it’s beginning to look, to me at least, like the War Council was the Coordinating Group for the Legal Implementation of Bush’s Detainee and Interrogation Policies.
If you put the following people in the Oval Office together:
Bush and Gonzo
Cheney and Addington
Rumsfeld and Haynes
Ashcroft and (Bybee?)
Condi and (Bellinger?)
Tenet and Rizzo
Powell and (Taft?)
Then you have an Ideologically-Linked Team composed of the Core Policy Makers – the Principals – and the Core Legal Enablers – the War Council.
There is Nothing Whatsoever – that We know of – that says the Lawyers were Anything But Toadies for their Political Masters.
So, why wouldn’t Rizzo collude with Yoo to cook-up the material in the OLC Memos for DoD? They were All *Loyally* in it Together!
By their actions, a case could be made, imvho, that the War Council operated on a Fundamentally Flawed View of their function within Our Government – despite their Professional Responsibility to Serve the Rule of Law First – these guys Put Loyalty to Bush First.
It was all about giving Bush Legal Cover – by Twisting Words with Tortured Logic – for Policies/Actions that Violated the Geneva Conventions and the Convention Against Torture.
None of them – that we know of – ever said “No” to Bush.
I think Taft did. That’s why h3 was cut out from th3 distribution lists lat3r imo.
And Bush never said “No” to Cheney?
I have a hard time believing that Bush was the actual leader of BushCo, or should I say, it’s obvious that ‘W’ was the figurehead for a larger organization and I don’t mean the United States of America.
If the people can figure it out, why can’t these lawyers understand that 100% loyalty to Bush is something less than loyalty to your country?
Because neither political party can publicly admit that they were part of the problem, not part of the solution, when it came to the destruction of the legal framework of the Republic.
The destruction came because the Republics alone held total power.
If we could have gotten ‘close’ to Bush and ‘watched’ his interpersonal and social styles during his Presidency, imvho, we would have noticed a few things about him very clearly:
– his inner circle slavishly fawned around him like he was Royalty, and they were his Loyal Court
– Bush had No Diplomatic Skills of any kind
– he wasn’t particularly intelligent
– he wasn’t particularly well-informed
– he had No Charisma
– he wasn’t a Leader, but a Driver, a Boss
– he wouldn’t tolerate challenge of any kind to his Alpha-male Dominance
– he was a rash, impetuous, impulsive, emotional decision maker who resisted limitations to his ‘personal’ Power of any kind – moral, legal, practical, sensible, etc
With Bush insisting on “Presidential Infallibility with Unlimited Power” as the Most Basic Assumption about him, it was inevitable, imvho, that his Minions – including Cheney – would be nothing more than smooth-looking, mean-spirited, boot-lickers in suits.
If Absolute Power corrupts Absolutely, then – given Bush’s demand for Absolute Power – We should expect to ’see’ an Inner Circle of Lawyers colluding to Cover Bush’s violations of established Law – out of Loyalty to Their Belief in Bush’s Infallibility – rather than Service to the Rule of Law…
These ‘Lawyers’ in the War Council were just like the rest of Bush’s Court – experts in Looking the Part of a Responsible Public Servant (wink, wink) – but lacking Any Moral or Ethical timber in their Character – Blindly Serving Bush’s Every Command without question (nod, nod).
The whole dynamic, imvho, can be reduced to Bush was the Big Monkey, and everyone else around him – including the Lawyers – were Sub-Monkeys that didn’t dare challenge him, even when Bush wanted to Torture.
That’s a personality type common in American executive office suites. It’s kissin’ cousin is the brown-shirted type who kisses up and defecates down the corporate hierarchy, hoping to win at the game of snakes and ladders.
Couldn’t the handwritten notations be from the DOJ (i.e. John Yoo)? I’m thinking of a scenario in which Yoo faxes a draft to Haynes and then there is a phone call where Yoo takes notes on the draft (something like ‘add this point to ensure that the JAGS can’t buck this’). Then, the DOJ would be making the ‘pre-decisional’ claim.
Yeah, but then they’d still refer to DOD. Those earlier ones are also deliberative, and they’re referred to DOD.
Also, does Document 13 figure in here? It’s a three-page March 6, 2003 “memo providing legal advice” from DOD to DOJ. What’s DOD doing providing legal advice to DOJ? Or was Haynes trying to get Yoo to sign off on something?
EW,
Thanks again for your investigative reporting!
There’s a new report by David Cole out that may interest you and your readers,
Volume 56, Number 15 · October 8, 2009
The Torture Memos: The Case Against the Lawyers, including this, which looks right up your alley:
Any thoughts on that? Or have you already commented on these documents, and I’m not remembering?
Bob in AZ
The Congress is aware of this and has, as yet, been stymied and voluntarily so it would appear, in investigating this. DiFi has some sort of investigation going on at SSCI. Durham has an investigation going on. But, frankly, no one has made a move to take legal sanctions against the folks involved. In fact, Pelosi balked at impeachment against Gonzalez, probably for the very reason that the two big political parties running the government do not want to deal with the criminality that their rule or lack there of has resulted in.
I have intentionally ‘refrained’ from any discussion on the Construct of Torture. And thusly, I have yet to ‘hear’ from anyone or anybody that speaks forthrightly to the question of, “Is circumventing the Constitution legally permissible?”
And I raise this question for two reasons:
1. Was the AUMF ‘constitutional’?
2. Was cirvumenting the Geneva Conventions, legally permissable given that the “Convention” is the existing Rule of Law?
From my perspective, once these two questions are ‘answered’ moving forward to address the Construct for Enhanced Interrogration, both in the overseas format as well as the Gitmo format, can take place, and done effectively.
In the mean time, Federal Judge Vaughn does not have access to the “tools” to render an informed opinion on any issue that comes before him, or when done, unfortunately, done on an arbitrary or superficial basis.
Jaango
That’s a bass-ackward way of looking at the law. These guys were trying to create a fait accompli for non-compliance with the law and the Constitution and thereby make it the permanent condition on the ground. That is, the goal was to disrupt the rule of law to such an extent that loyalty to the law was grossly “misunderstood” and then lost so that criminality and injustice could thrive. They seem to have succeeded so far. For all the fanfare, there has been little if any legal consequence to a vast majority of the criminals involved in torture, creation of a scam economy, etc. Heck, look at how many folks are incurious as to where all the pallets of cash sent to Iraq that cannot be accounted for went. It doesn’t take a super-genius to see that the system is corrupt. The problem now is to convince the scammers and thugs that this is still not an opportunity to do worse. So far, it looks like a field of unguarded corn to the crows.
Do they withhold every paper with hand written notes is that the standard? If not then I think you found something interesting.
Why can’t they simply “redact” the comments? Then it’s “documentary” and not “deliberative”. But I suspect that they would then challenge any request to see THAT document since it needed to be reviewed by the DoD…playing the game of infinite regression. Of course the Judge could call them on this…saying that they had every opportunity to provide the document to DoD for review previously, and did not….thus their actions are clearly dilatory. Judgement for the plaintiff.
Is it possible someone at the meeting said Bush and or Darth needs certain things to be said perhaps because as you point out
marcy, it’s daunting
their entire strategy is to throw as much smoke up as possible
we WILL do this agains because obama has decided he’s not going to bring these criminals and triators to the bar of justice
they did it before, they did it again but better then the other two times, they get better at it each time because nobody wants to stop them
this is really disturbing
Isn’t Spain looking to try a few Bushies? If so Obama has to move it would be a huge embarrassment if Bushies get indicted in Europe but walk around free here.
I’m not sure the future Obama legacy project could handle such a scandal. Next to money image is a politicians prime motivator and image trumps money sometimes.
I am really being hopeful today:)
The Spain deal is merely an annoyance; Spain has no personal jurisdiction over the potential defendants, the US will never consent to the same, and the Spanish government will never participate. This leaves the “investigating judges” out on a string by themselves. Legally, it is an annoyance at best; the only hope is that it moves public opinion, problem is that it will be mocked by the right and taken umbrage to. Instead of being a rallying point for accountability, it will likely serve to rally the public around “our heroes that kept us safe”, i.e. the torturers.
OT
AFP – September 25, 2009
Swine flu death toll reaches 3,917: WHO
Some 3,917 people have died from swine flu infections since the A(H1N1) virus was uncovered in April, the World Health Organisation said on Friday.
This marks a jump of 431 deaths compared to a week ago when 3,486 deaths were recorded, said the UN health agency in its weekly data on the pandemic published on its website.
The Americas region continued to post the highest number of fatal cases, at 2,948.
link
http://publichealth.lacounty.g…..fm?id=6441
The biggest problem with those numbers is that many area have simply stopped reporting A(H1N1) infections. Locally, doctors won’t even see you if they think its H1N1 unless you are an “at risk” patient. Otherwise, they tell you to treat it as any flu and don’t bother with any testing (or even office visit).
And how many deaths occur every year due to seasonal flu, the one they aren’t fear-mongering about?
That’s 3,917 out of more than how many world-wide? I believe WHO numbers state more than 300,000 reported cases which implies there have been more than 300,000 cases.
In Response to “timbo” @11.
Not “bass backward” but straight-on.
Take, for example, having Judge Vaughn render a decision that the Rule of Law, i.e., the Geneva Conventions, was broken, lays the groundwork for the additonal legal charges and cases that will have to be addressed, and able to be accomplished effectively. All these perceived ‘torture’ documents or the effort to establish this Regimen, was intentional and done with forethought.
To date, the attorneys litigating this legal mess, are attempting to backfill the obvious holes, on the assumption that the Freedom of Information Act and State’s Secrets, can be legally addressed resulting in their anticipated result. And in this instance, I am a cynic.
Thus, if Judge Vaughn determines that the “law was broken”, President Obama’s administration has no viable opportunity forward, other than to cooperate with the courts, unless SCOTUS or Congress sees fit to intervene.
Jaango
Any reason why you suspect Rizzo rather than Addington as the one offering help to Yoo in writing this?
Because this release is a CIA-related release, suggesting that CIA is the authority that said no, not the White House.
bmaz @ 22
The Spanish courts may very well surprise you bmaz – there are new precedents being set -heck Argentina is going after the military officers that disappaeared all them folk back in the eighties, and are so doing with international help -from all over . The Emperor /Torturers might yet been seen ‘as wearing no clothes” and then be brought to Justice ….
Legally, it will never amount to anything and, again, even the Spanish govenment is unhappy with the rogue judges and will not assist. The only hope is that it inflames world opinion; but nothing has so far, why will it now? And again, time and time again, such things have only caused Americans to turn inward and protect their people. As before, I hope I am wrong; but I have never lost betting this line. Never.
The Spanish judges can prosecute the U.S. torture team in absentia, and convict them in absentia as well.
The Spanish may have to do so using evidence already in the public domain. Scott Horton reported: (http://www.huffingtonpost.com/2009/09/11/spanish-investigators-pus_n_283955.html)
“The Spanish investigators are now hoping for detailed responses to the questions they sent the U.S. Justice Department in the form of “letters rogatory” — the customary method of obtaining judicial assistance from abroad in the absence of a treaty or executive agreement. The questions focus on the treatment of the Spanish subjects held at Guantanamo and the specific authority and approval for that treatment. They also probe in more detail into the role played by Gonzales, Bybee and Yoo in the process, reflecting a view that the U.S. Justice Department was itself the locus of much of the criminal conduct connected to introduction of a system of torture and cruel treatment of Spanish subjects, in violation of the Spanish criminal code using its universal jurisdiction arm.”
Why did the Spanish send letters rogatory? These are a centuries-old method by which a court in one country can get evidence from a court in another. They operate under the principle of comity. Among other drawbacks, there is no obligation on the requested country to provide the evidence sought.
The U.S. in fact has a perfectly good bilateral treaty of mutual legal assistance in criminal matters with Spain. It was signed 11/20/90 and entered into force June 30, 1993: Senate Treaty Document 102-21.
Compliance with a request for evidence pursuant to a treaty of mutual legal assistance is a matter of legal obligation.
Holder may blow off the Spanish in any event. But, by blowing off letters rogatory, he would commit no legal breach.
Why didn’t the Spanish use the treaty? It’s almost as if they were pulling their punches.
Assuming nonetheless that the Spanish proceed to indict, they can make the lives of the defendants less pleasant than otherwise. I am assuming that the Spanish would ask the U.S. to extradite them, and that the U.S. would refuse.
Yet Spain undoubtedly has applicable treaties of extradition with most countries to which the Torture Six are likely to travel.
As long as the Spanish arrest warrants remained valid — and I don’t know how long that might be — the defendants would risk provisional arrest with a view toward extradition to Spain, and subsequent extradition there, each and every time they set foot in a country that has an applicable extradition treaty with Spain.
The Spanish can also proceed with prosecution and convict a defendant in absentia. Same analysis as to extradition, both from the U.S. (most likely no) and from other countries (might depend on the country.)
The Torture Six belong behind bars, of course, But even a country as large as the U.S. can start to seem restrictive if you know that you dare not leave.
Oh, I understand that. Problem is that the Spanish government has been quite clear they want nothing to do with the case. They will not back up the letters rogatory under the treaties through diplomatic process, as would be necessary for enforcement, nor would they do so on any warrants; and neither are going anywhere internationally unless the Spanish government does so, that is how the pertinent treaties are structured. The Spanish government will never do this without specific consent by the US, which will never be given. That is why I discount the Spanish case for anything other than international public pressure purposes.
It looks like a systemic practice.
“Draft” accounting and legal opinions are funny things. They are proposals, not commitments. On their face, they are an indication of direction from an outside adviser, but one open to negotiation – or else they would be final.
The best way to view them is as if looking through a Japanese filter, for the same reason that “difficult” can mean “I agree, but it will be hard to do” or it can mean, “No,fuggedaboutit”.
In the case of legal opinions, an opinion may be a draft because important information has yet to be exchanged or confirmed. Drafts are also issued in order to confirming “assumptions”. These are NOT facts, but things the opinion writer relies on as facts for purposes of the opinion. These comprise the stakes and brass markers that map out the shape of the advice. Stay within them when relying on the opinion, and you’re in your own back yard. Stray outside them, and you’re trespassing in someone else’s. At a minimum, you’re on your own; beware the dogs.
Drafts are also negotiating instruments. What’s being negotiated is usually clear but unspoken. In the private sphere, it could be a request for fuller cooperation or a warning to fix things before it’s time to issue a subsequent opinion. Less generously, it can be a threat to make a service contract more lucrative, lest the final advice be unfavorable and more expensive for the client.
In the public sphere, they can be implicit approval to go ahead with some desired action – indicating what the issuing agency will or won’t do in response. But being drafts, the lawyer or agency is not bound to the advice given. The Cheneyian effect is to muddy the waters, to give cover to both the issuer and the user of the opinion, and sometimes, to make it harder to prove criminal intent.
In the case of the Yoo-era legal opinions, the mud is thicker than usual. In several cases, Yoo was not speaking for or even informing the OLC (the technical issuer of the opinion), let alone Ashcroft. Yoo’s opinions are muddier, too, because he perverts a process normally meant to restrain and clarify, and does the opposite.
Draft opinions are not bread crumbs dropped along a forest path so that followers can find their way. They are a red flag, a warning to investigate circumstances more thoroughly.
My Thanks to “The Earl” for his post above.
I firmly believe that the decision to “circumvent” the Constitution, was taken by Mssrs Bush and Cheney. No evidence of this decision has yet to see the light of day.
However, the “enhanced interrogation” regimen would not been implemented and the political/legal cover sought due to this implementation, was artfully done and on purpose–after the fact. Thus, this ‘artsiness’ cannot equate to or camouflage our broken Rule of Law. If so, this legal struggle has already been lost.
So, does Judge Vaughn have the legal underpinnings that would suffice for his rendering a decision that the Geneva Conventions were legally violated and to the point that the law was broken?
And perhaps, Marcy can answer this question for me, or some other attorney that has been following this issue?
Jaango
The more we learn about the CIA role, the more central it becomes. I will take your supposition, with which I totally agree, even a step farther. While I’m not willing to go this far, yet, myself, I’m beginning to doubt that the reverse-engineering of the SERE techniques actually originated from DoD/JPRA.
It’s my “inspired” guess that they originated from CIA, or a CIA/DIA project. Partly I’m drawing off the fact that SERE techniques (actually, Air Force Survival School, as SERE as an entity was not called that at the time) were utilized by CIA in the late 50s in constructing their DDD paradigm for their interrogation program, which we finally saw in the KUBARK manual. I’ve documented this in an article: Top U.S. Behavioral Scientists Studied Survival Schools to Create Torture Program Over 50 Years Ago.
If this hypothesis is the case, then the reverse engineering took place within CIA’s Science and Technology Directorate, specifically OTS (just like the first torture program did). Planting the “reverse-engineering” in a small-fry SERE psychologist (or two) was part of the cover story, in this scenario.
I might agree to the extent that SOME people in CIA were central to the torture campaign, just as some were in DOD, in the armed services, and probably in the State Dept. But the striking thing about it is that the torture campaign is so amateurish. Among experts, it was well known that torture would not work for intelligence purposes and was extremely illegal. Yet we get these stumblebum decisions and so-called legal opionions that smack of people that just do not know what they are doing.
I can’t imagine that rank and file intelligence professionals could have been safely recruited into such a conspiracy. I like to hope that they would have moral qualms. But even if they didn’t, as a group, they would not be gullible enough to think that it would work or that it could be kept secret. They would be all too aware of the potential legal consequences.
Instead, the known actors that we see in CIA and DOD fall into two groups: politically appointed and/or politically ambitious managers and ne’er-do-wells/cowboys like Foggo whose unprofessionalism made them attractive to the new management just as it alienated them from their colleagues. Of these, the former are the ones chiefly to blame.
One of my biggest disappointments with Obama has been this readiness to keep on and hold over those who either hurt the US or allowed her to be hurt on their watches. The org charts of the Pentagon, DOD, CIA, FBI, and the individual services should have been decapitated when the Democrats came in. The mere fact that someone rose to command in the Bush years should on its own merit immediate retirement. Anyone who was made to retire under Bush should likewise have been reinstated.
Instead, Obama has identified himself entirely with the political operatives and bureaucrats that accomodated Bush’s power grab. He has protected them. He has advanced them. And in the few cases where he replaces one, he selects another of the same stripe, Panetta being a case in point.
Politically driven amateurism has not been a problem in intelligence gathering alone. We see the same thing in war fighting, finance and monetary policy, diplomacy, and healthcare. Our new Democratic regime sees continuity as the real virtue, not change. The same inept, ignorant, vain and over-confident people who managed us into disaster are kept on and credited with fixing the mess, while people who might actually know a thing or two are marginalized or derided for lack of political realism.
So I suspect that, if we have a hope, we have to believe that our core institutions and the bulk of our career civil servants–even CIA agents–are still patriots that can be relied upon to assist with the necessary purges when and if we ever have the courage to start them.
There’s CIA research analysts and CIA operations (covert). The most used phrase among intel professionals I hear these days is “stay in your own lane.” And that’s what they do. I agree that the bulk of the CIA employees had little to nothing to do with the torture program. Those who did were sealed off from the rest of the organization; the operation was compartmentalized and known only if you were read into it. However, there must have been plenty who suspected, or knew something. They stayed in their own lane.
In a comment here at FDL recently, Malcolm Nance of SERE said as much of various DoD types, including contractors, who knew, for instance, that something was going on with Mitchell-Jessen, with Tate, etc., but wink-wink looked the other way.
There may be “patriots” in the intelligence services (in fact, I know there are), but there are others who are more loyal to the service and the game then they are to the country, or believe the needs of the service and of the country are one and the same. That’s why no one protested — except one psychologist — when the American Federation of Intelligence Officers published a racist essay calling for the killing of 100,000 Muslim “zealots” a few years ago, describing them as not having brains like other people. See my article on this recently.
In re the Spain thing and extradition, Switzerland has arrested Roman Polanski for extradition to the US on outstanding and ancient sex crime charges. Can’t help but wonder at what an odd move that is, and whether it was taken in response to any US pressure. If this should turn out to be some sort of harbinger of a new period of increased extradition activity generally, then I could see how that might increase the Spanish prosecutor’s likelihood of success — but frankly never in a million years enough to pressure the USG into handing over any formerly ranking Bushie. A lackey maybe — Yoo, etc. — but never a Principal, certainly not any senior elected official. IMHO.
The US would not hand over Yoo or somebody even lower; it would set a precedent they desperately do not want to establish. It will never happen. Secondly, yes, by definition it had to be new and concentrated pressure by the US government. Polanski has been in and out of Switzerland for decades, he owns a chalet in Gstaad and spends time there every year. The LA County DA and Superior Court has no authority to extend jurisdiction for the warrant internationally except through federal channels. In this case, it is was by express notification and demand by the DOJ that the Swiss pinched Polanski.
Thanks, and I’ll just add for the benefit of anyone else arriving as late as I did, that this topic is discussed in full on what I’ll call the Chuck Fuck thread immediately upstairs.
Though I do think Yoo in particular is not unlikely to wake up under some bus or another one of these not-too-distant days.