Did DOD Have ANY Authorization for Torture after 2004?
There are a couple of things that have been bugging me about the authorizations DOD got for interrogations. It’s not clear what kind of authorization DOD used to justify detainee interrogations after the Yoo memo was withdrawn in 2003-2004–they had no overall interrogation approval from OLC. While it’s possible they were just relying on already-existing DOD documents, there are hints that DOD was either relying exclusively on the CIA’s more expansive authorizations (that included waterboarding), or they had some alternative approval that may not have involved OLC at all.
As I’ve shown (here and here), in March 2004, DOD requested approval to use–at the least–extended isolation with detainees. In response, Jack Goldsmith and Steven Bradbury started trying to replace the 2003 Yoo memo.
At precisely the same time, Goldsmith was working through the mess created by the Legal Principles document. As you recall, faced with clearly illegal conduct and with the opportunity to investigate that conduct themselves in 2003, CIA worked back channel with Jennifer Koester and John Yoo to summarize the legal advice given on torture, going so far as to claim certain techniques (like abdominal slap and diapers) had been approved when they hadn’t been. During that period, Koester and Yoo gave CIA an opportunity to review and provide input on the 2003 Yoo memo. Then, Koester and Yoo relied on the Yoo memo for several of the claims they made in the Legal Principles. That raises the possibility that one reason the Yoo memo was so bad (it was even more permissive than the Bybee One memo) was to help CIA avoid criminal liability for crimes already committed.
At the very least, this is proof that CIA and DOD were both relying on advice given to the other agency to justify their own agency’s actions. We know DOD used the Bybee memos (and oral authorization from Yoo based on that analysis) to authorize its treatment of Mohammed al-Qahtani in 2002-2003. And the Legal Principles show CIA was using the Yoo memo, written for DOD, to authorize its treatment of multiple detainees in anticipation of the CIA IG Report. In other words, though DOJ liked to maintain the fiction that the approval tracks for CIA and DOD were separate, they weren’t, at least not when John Yoo was involved.
And that was becoming crystal clear in spring of 2004. (In the same phone conversation in which Goldsmith confirmed that the Legal Principles weren’t an official OLC document, he also asked Yoo for details of his verbal authorizations to Jim Haynes leading up to the al-Qahtani torture, so he clearly pursued these issues in tandem.)
Yet after that, CIA’s memos got withdrawn and replaced. DOD’s Yoo memo reportedly was withdrawn. But no formal guidance from OLC ever replaced it.
So what happened after that point?
The Daniel Levin Memo
My concerns about DOD’s later authorizations stem partly from a memo Daniel Levin wrote John Ashcroft and Jim Comey in September 2004 to summarize all the advice OLC had given on torture. It shows the state of affairs as it existed in September 2004–the way in which DOJ was transitioning from authorizations based on Yoo’s crappy memos to more arguably defensible authorizations. I wrote a detailed post on Levin’s memo here, but here’s how Levin described that state of affairs (the following is my summary of his summary, except in one direct quote from his DOD section).
A. GENERAL ADVICE
1. Previously Given: Bybee One memo
2. Current/Pending: This is redacted, but must describe what became Levin’s own December 30, 2004 memo that replaced Bybee One.
B. CIA ADVICE
1. Previously Given: Bybee Two memo
2. Current/Pending:
a. Ashcroft’s July 22, 2004 letter reauthorizing 9 techniques from Bybee Two
b. Four letters pertaining to three individual detainees: An August 6 letter authorizing waterboarding for use with one detainee and an August 26 letter adding four new techniques, including water dousing, for use with that same detainee; a September 6 letter authorizing 12 total techniques including water dousing but not waterboarding; and a September 20 letter authorizing those same 12 techniques with a third detainee.
c. This is redacted but must describe the memo that would become the May 10, 2005 Techniques memo, and possibly also the May 10, 2005 Combined memo.
d. Mostly redacted, but this bullet describes the May 30, 2005 CAT memo.
C. DOD ADVICE
1. Previously given
a. Yoo memo
b.Levin described OLC approval of 24 DOD techniques this way:
In addition, we approved 24 specific techniques the use of which the Secretary of Defense approved. Although it is not entirely clear to me when that was done it was reaffirmed, for example, in a July 7, 2004 letter from Jack Goldsmith to Scott Muller (referring to approval of both CIA and DOD techniques) and also in a July 17, 2004 fax by Jack [Goldsmith].
2. Current/Pending; [entirely redacted]
The general and the CIA approval is everything we’d expect to see, with the possibly interesting detail that in September 2004, Daniel Levin (who drafted most of the Techniques memo but who was ousted before Bradbury wrote the Combined memo) saw just one memo to be forthcoming addressing individual torture techniques.
But Levin’s understanding of DOD’s approval is interesting for two reasons. First, he confesses that he has no idea how and when OLC approved the 24 DOD techniques (these were techniques Rummy approved in April 2003), only that somewhere along the way Goldsmith sanctioned them (this accords with what we know, but it also means OLC conducted no independent review of them; this is further important because it’s where some things–like isolation–got approved). And, Levin believes as of September 2004 that OLC is actively working on a memo for DOD analyzing individual torture techniques, one which, according to the OPR Report, was never completed.
There’s one more notable detail. Levin references the July 7, 2004 Goldsmith letter to CIA authorizing the 24 techniques. But he also references a July 17, 2004 fax also authorizing the 24 techniques. We’ve seen the former, but not (to the best of my knowledge) the latter. And that July 17 fax was written on Goldsmith’s last day at OLC, after having moved up his last day from August 6 to July 17 for some reason.
The OPR Report
Which brings me to what the OPR Report says about DOD Authorization.
As I said before, it reports that in April, Goldsmith started working on a replacement for the Yoo memo with Steven Bradbury.
Sometime in April 2004, Goldsmith began working on a replacement draft for the Yoo Memo, assisted by then Principal Deputy AAG Steve Bradbury and several OLC line attorneys. [this statement is followed by a redacted paragraph, suggesting something about the replacement remains highly sensitive]
After a discussion of the Legal Principles/Bullet Points controversy (which I mentioned above) the OPR Report returns to a discussion about the drafting of the replacement for the Yoo memo.
The first draft of the replacement memorandum was produced in mid-May 2004, and at least 14 additional drafts followed, with the last one dated July 17, 2004. Beginning with the sixth draft, dated June 15, 2004, specific criticisms of the Yoo Memo were discussed in footnotes. Although the criticism was removed from later drafts, Goldsmith told OPR that it was not removed because of any doubts about its accuracy. Rather, Goldsmith ultimately concluded that it was unnecessary to specifically address the errors.
A couple of notes about this timing. Goldsmith told Jim Haynes not to rely on the Yoo memo in December 2003. But he didn’t start his efforts on replacing the Yoo memo until after DOD asked to use–at a minimum–extended isolation in March 2004 (and after DOD, but according to the Terror Presidency, not Goldsmith, knew about Abu Ghraib). The first draft was not completed until after the Abu Ghraib scandal had broken (remember that Goldsmith was very busy trying to salvage Cheney’s illegal wiretap program between March 10 and May 6, 2004). Then, after writing six drafts between the time he started this process and mid-June, he started attacking the Yoo memo directly.
Significantly, the very day Goldsmith told Ashcroft he would withdraw the Bybee One memo, he also had Bradbury put this into a footnote on the first page of a draft memo purportedly replacing the Yoo memo:
The Yoo Memo “is flawed in so many important respects that it must be withdrawn.” June 15, 2004 draft at 1, n.l.
This language speaks of withdrawing the memo as something that had yet to be done, suggesting that the Yoo Memo was not, in fact, operationally withdrawn yet in June 2004. Goldsmith was still making the case to do so in the footnotes of its replacement! More importantly, he started making the case in those footnotes on the same day he finally decided to withdraw the Bybee One memo. That’s not an accident. As Goldsmith admits in Torture Presidency, he ultimately withdrew the Bybee One memo because of his thinking on the Yoo memo.
In the end I withdrew the August 2002 opinion even though I had not yet been able to prepare a replacement. I simply could not defend the opinion. I had rejected its reasoning in the March 2003 opinion, and I knew that the August 2002 opinion would eventually suffer the same fate.
In addition to the footnote above, the OPR includes several others dated June 15 that could also be applied directly to the Bybee One memo, notably those addressing Commander-in-Chief power and possible defenses.
In other words, what Jack Goldsmith did with his footnotes on June 15 was withdraw the Get Out of Jail Free Card from both DOD and CIA at the same time. And the next day, he tendered his resignation, to go into effect on August 6.
The OPR Report is very opaque about how this process related to Goldsmith’s departure and why he left three weeks early. The Report includes the following details peppered throughout the discussion of the withdrawal of the Yoo and the Bybee One memos.
Goldsmith left the Justice Department on July 17, 2004, before he was able to finalize a replacement for the Yoo Memo. On July 14, 2004, then Associate Deputy AG Patrick Philbin testified before the House Permanent Select Committee on Intelligence as to the legality of the 24 interrogation methods that had been approved for use by the Defense Department. Sometime thereafter, the Defense Department reportedly informed OLC that it no longer needed a replacement for the Yoo Memo.
[snip]
Shortly after the Bybee Memo was leaked, Goldsmith was asked by the White House if he could reaffirm the legal advice contained in the Bybee Memo. Because the analysis in that document was essentially the same as the Yoo Memo, which he had already withdrawn, Goldsmith concluded that he could not affirm the Bybee Memo. He consulted with Comey and Philbin, who agreed with his decision, and on June 15, 2004, Goldsmith informed Attorney General Ashcroft that he had concluded that the Department should withdraw the Bybee Memo. Although Ashcroft was “not happy about it,” according to Goldsmith, he supported the decision. The following day, June 16, 2004, Goldsmith submitted a letter of resignation to become effective August 6, 2004.
[snip]
Goldsmith was determined to complete his replacement for the Yoo Memo before he left the Department, and he also assigned an OLC line attorney to prepare a replacement for the Bybee Memo.93 At some point during the summer,
however, it became apparent that the Yoo Memo could not be replaced by August, and Goldsmith decided to advance his departure date to July 17, 2004. [Note, this last passage is followed by a long redaction.]93 Several replacement drafts for the Bybee Memo were prepared under Goldsmith’s direction, the last of which was dated July 16, 2004.
So the story is that at some point Goldsmith decided he couldn’t finish the Yoo memo–at least not by August–and so he just left.
And while Levin seems to have believed two months later that it was still in the works, the OPR Report says “sometime thereafter [after July 17], the Defense Department reportedly informed OLC that it no longer needed a replacement for the Yoo Memo.” There’s a lot that stinks about that statement: the term “reportedly,” which suggests that OPR saw no documentation about that decision, the vagueness regarding the timing, and the apparent disinterest in explaining why DOD would no longer need the memo after it had been deemed so important in earlier periods.
Now, the OPR Report, at least, appears to believe the 24 techniques originally approved by Rummy was what governed DOD interrogations after the withdrawal of the Yoo memo (suggesting that DOD was satisfied with those 24 techniques). It mentions Philbin’s statement to HPSCI on July 14, as if that were definitive. Though Levin’s comment–noting that he has no idea when and how OLC authorized those techniques–suggests some doubt.
I’m particularly intrigued, though, by Levin’s mention of a July 17 Goldsmith fax reiterating approval of the 24 techniques.
One explanation for that fax is that it was actually draft number 14 reported in the OPR Report–that that reiteration of approval for the 24 techniques was a draft OLC memo. That would be significant because it would suggest that Goldsmith was combining the general authorization for DOD torture with specific techniques. He may have tried to do that. The OPR Report describes his confusion as to why Bybee One and Two were dated with the same date, suggesting he thought a generalized memo distinct from a specific one might be particularly dangerous. If so, would that suggest that one reason Goldsmith realized he couldn’t finish Yoo replacement before August might be because someone objected to including actual techniques in the more generalized authorization?
Then again, it’s possible that Goldsmith just sent a fax on his way out the door in an attempt to make sure DOD stuck to the limits of the 24 techniques. Significantly, the problem that both Goldsmith and Philbin had with the Yoo memo was that it would serve as a blank check for new torture techniques. Goldsmith even complained that Philbin had given an oral caution–but no written one–that DOD should stick to the 24 techniques in 2003, when Yoo issued the DOD memo.
The broad nature of the memorandum’s legal advice troubled [Goldsmith] because it could have been used to justify many additional interrogation techniques.. As he later explained in an email to other OLC attorneys, he saw the Yoo Memo as a “blank check” to create new interrogation procedures without further DOJ review or approval.
Philbin responded to that email as follows:
John’s March memorandum was not a blank check at least as of the time [Jennifer Koester] started work at DoD OGC (Summer 2003) because I told her to make sure they did not go beyond the Rumsfeld approved procedures and did not rely on the memo. This was only an oral caution but please do not sell us short by ignoring it.
Goldsmith answered as follows: “I’m not selling anyone short – It’s just that Haynes said he heard nothing about that advice.”
Goldsmith’s memorialization that the 24 techniques (but presumably only the 24 techniques) had been authorized was one of the last things he did at DOJ. That he made the effort suggests that he believed such a written reminder was necessary to ensure DOD stick within limits authorized by OLC (though, as Levin reminds, they really hadn’t been, not formally). That he made the effort also suggests he thought such a warning would work to make DOD stick within the limits of those 24 techniques. Given that the White House issued some kind of memo on torture just 4 days after Goldsmith left (see document 63 at PDF 81), that might be overly optimistic.
In any case, it’s not clear what authorization DOD relied on after Goldsmith left.
Have long wondered whether there was something in the classified NSPDs — specifically numbers 6, 7, 8 and 9 — which would have provided the ultimate fallback, the same thing which set the whole ball in motion in the beginning.
And did the DOD simply continue but read people into a secure program which would never be disclosed or declassified under the same NSPDs?
Did Rummy think his high-level review of NSPD-9 in front of the 9/11 Commission was enough to make this “approved” for broad use?
JesusMaryJoesphAndAllTheSaintsAn’Angels:
Yeah. I know. But “they” kept on doing stuff which was likely not compliant with Geneva and CAT conventions, let alone US and publicly-published military code; “they” completely disregarded Goldsmith.
Who was “they”?
Why did “they” think they could continue with impunity?
Why can’t we see what “they” did, both in decision-making and in follow-up?
And why did Goldsmith write last week’s op-ed???
Well, this is turning out to be an interesting Saturday evening, after a swing by Col. Pat Lang’s Sic Semper Tyrannis turned up a few interesting things, including this:
As creepy as this information is, it is appears to be consistent with EW’s Ghorbanifar Timeline, and it also appears to be consistent with this post’s information. For instance:
The intense institutional infighting revealed in this post seems to lend further credence to the information at SST.
The process you describe suggests, at a minimum, that CIA and most likely DoD lawyers and top staffers could not possibly reasonably rely on the Yoo/Koester/purportedly OLC work product as independent advice of counsel. Close examination would reveal all their work to be for nought, though we have yet to see any examination of it, let alone close dissection, by the government or tradmed. Many thanks, EW.
Most of the NSPD’s and NSS’s from that era were authored by…Vice Admiral McRaven:
Sure, that’s from Wikipedia (which the military public affairs people update on a regular basis). But it’s solid.
Even SEAL TEAM TWO’s association website and his official Navy bio boast about it:
And who helped set up NCTC? No one special…just his pal, Admiral Harward:
A euphemism for “across the aisle” work with CIA.
What do you mean by “from that era”? What years? Sorry if this should be obvious.
The first GWB administration, but specifically 2002 – 2005.
During this time COPPER GREEN was established, GTMO grew, we starting putting down roots in Kenya, Djibouti, and the Philippines and various Army intelligence outfits were yanked out of their conventional chain of command and transferred to JSOC.
And how does that timing coincide with the time Brennan was in charge?
Brennan was D/NCTC from day one. Harward was taken out of JSOC and re-assigned administratively to the JCS, at which point they promptly turned around and had him lead the first interagency team dispatched from DoD.
I can tell you that NCTC’s branches are primarily DIA and CIA. FBI and DHS have a presence, but are dwarfed by the amount of contractors. Most are former military intelligence.
Wasn’t “across the isle” work happening before the war?
What kind of def medical team would serve such defense intel work as this interagency work?
O-7’s and above from Walter Reed and Bethesda, MEDCAP personnel from CENTCOM (at that time, Qatar and Bahrain) and shrinks from the Big Two (Army and Navy).
Nothing from San Diego?
The facilities at 32nd Street in San Diego, in Portsmouth and Norfolk in Virginia, and the clinics at the major Marine Corps bases are subordinate to Bethesda.
So med commanders from San Diego would ultimately take their orders from Bethesda?
Correct. They’re merging Walter Reed with Bethesda under a joint basing arrangement mandated by BRAC.
Corpsmen and medics are under a different chain, depending on who they’re chopped to.
Where are you going with this? SEAL corpsmen and/or shrinks wouldn’t participate in torture. They’re too corporate, that’s the whole point of using contractors that have a different mentality devoid of morality.
Just trying to jive some comments from a friend with your information in order to put the friend’s comments into the bigger picture you are presenting.
All I can do is reiterate my encouragement that **anyone** who hangs out around EW’s go see “The Green Zone”, and also take note of who in that movie seems to report to the neocon played (chillingly) by Greg Kinnear.
And there’s a young Iraqi translator who just might break your heart.
Yes, but with CIA in the lead, with DoD in a supporting role. That all changed when Rummy declared that DoD would run point on everything counterterrorism, and put SOCOM in charge of synchronizing it across the entire government.
The use of classified annexes – which were exposed in the Army Field Manual by Jeff Kaye and Matt Alexander – is a common practice dating back to the early 1970’s, before the advent of ACCMs.
You classify portions (or in this case, all) of the annexes, and subsequently sub-compartmentalizing specific passages (large PDF linked, see page 43) – which in this case, are techniques – under separate compartments.
Plain vanilla ‘gators can’t report something they aren’t cleared to see in the very manual they use as the rule. The annexes are the exceptions to the rule, and are split into sub-compartments so no one person is read into all of them, thus sidestepping accountability.
The early drafts of the National Intelligence Estimate, most OPLANs and certain DIA documents distributed at the JCS level are composed in the same fashion, but with the intention of spreading “blame” amongst the authors, versus intentionally deceiving someone of, say, the President’s, stature.
The “beauty” of disseminating blame for a bureaucrat is that it makes it hard to pin on any one bureaucrat, let alone his or her political masters. Those are two sides of the same coin, not different currency.
If you look at the Bradbury memo of April 13, 2006 (PDF), i.e., the opinion on the Army Field Manual and Appendix M (emphasis added), we see this:
Bradbury goes on to note in a footnote that the Philbin testimony differs “in certain minor respects” from the details enumerated in Appendix M, but doesn’t feel the differences are enough “to alter the conclusions previously reached.”
It appears that they are using the Philbin “statement” as a statement of DOJ policy, akin to an OLC memo. Can they do that? — I haven’t had time yet to fully read it and absorb it (being a bit behind the curve catching up on these things).
Here’s a link (PDF) to the DoJ Philbin statement of July 14, 2004. It seems it is the missing replacement to the 2003 Yoo memo, or they decided it was.
Here’s the conclusion:
One could call it Philbin Faux Memo.
And in the last quote by Philbin, it’s clear he’s referring to not just “the 24 interrogation techniques approved by the Secretary of Defense for use with Al Qaeda and Taliban detainees held at the Guantanamo Naval Base,” but “as a representative of the Department of Justice to address the legal standards that govern treatment of detainees in the global war on terrorism.”
Note, of course this is all pre-Hamdan.
Thanks. I sort of realized I should have gone forward and worked my way back. Obviously they invested a lot in that statement. Curious.
yes – and yet, where are all those caveats that keep his testimony from being the “comfort” or reliance opinions and instead merely the “technical discussions” that Mukasey, Kmiec, Yoo’s counsel, Rotunda et al use as the defense against professional misconduct? The Legal Principles, the Haynes/Rumsfeld list of techniques, the DOJ/OLC Philbin testimony authorizing the DoD list of techniques (despite the running away from the the similar, but actually much more detailed legal principles document) – that “just a technical discussion between lawyers, not comfort or reliance opinions” starts to dwindle.
Then when OLC “authorizes” the DoD list of techniques in testimony to the Intel committee, and yet sits back and does nothing while the military pursues, scapegoats, jails and forever makes infamous the Abu Ghraib lawyers – and while evidence of worse, including rape and the CIA involvement in death of a detainee, are sat on by DOJ, you begin to get a whiff of why Bybee sputters around pointing to all the others, from Ashcroft to Comey, and what they all did and did not do as well.
That’s a big part of the problem – if you hold to any kind of standards, there’s no way to stop with Yoo and Bybee, You have to have a much bigger net with a a much bigger catch and where does that leave DOJ “Hey everybody – everyone from the IGs to the Crim Div to the OLC to the AGs to the DAGs and … well, pretty much everybody at DOJ is willing to be a part of Exec branch torture and torture killings and cover ups and lies to the courts.”
Obviously, that pretty much destroys confidence in the system. OTOH, reinforcing that the system is supposed to work to only protect DOJ and the PResident, not victims, ends up reducing it to a system that has no value excpet as a political and personal mechanism for its inner circles.
I think when the histories of this are written, we’ll see that this was a long, slow slide down to the illegtimization of the institutions of the country.
Torture… a universal acid…. destroys everything it touches… and you end up with a torturing society, as Miles puts it. John Conroy put it the same way in his book, Unspeakable Acts, Ordinary People. You can read an excerpt of the latter, wherein Conroy enumerates the stages of descent for a torturing society — total denial, minimization of the abuse, disparagement of the victims, justification “on the grounds that it was effective or appropriate under the circumstances”, and then:
It sounds vaguely familiar to the concept of “minimize, deny and blame” found on the power wheel for domestic violence. Any one who has worked with DV knows the strength of that denial in both the abuser and the abused, and how convoluted it’s relationship to violence. There is frequently a history of invalidation coupled with some type of either verbal or physical abuse. Whole books could be written about how this type of invalidation is the corner stone to brainwashing and to the denial that comes from abuse. Where “minimize, deny and blame” are totally internalized as a key way to cope with abusive violence, the spiral begins and is very difficult to intercept. Those who “see” what is happening are literally working in a different paradigm from those people who cannot and will not “see it”. This denial is contagious and woven throughout our culture.
I believe that invalidation is an invariant mechanism in violence against other human beings. We have to educate about this dynamic of minimize, deny and blame. In fact, most mental illness will have some root in this mechanism. This mechanism is the antithesis of accountability and creates a clear obstacle to change. Without the other side of the dialectic, without acknowledgment of the pain, there can be no change.
The greatest contribution to world peace is to heal from abuse.
Yes, and other factors like:
— Chertoff’s move over to Homeland Security (while HoJo was Senate Chair of the committee charged with oversight),
— Alice Fisher’s involvement at DoD Criminal Division, as well as her linkages to the use of ‘the law’ as a tool for domestic political control, as in Mississippi (i.e., Siegelman’s being sent off to federal prison)
— Bush’s Oct 2003 statement that ‘leakers will be fired,’ followed by his June 2007 pardon of Scooter Libby…
and on… and on… and on… kind of reinforces that “has no value (except to cover the legal asses of the culpable) point of view. All of which, IMHO, weakens national security. But then, I’m just a scold.
But that same ‘has no [legitimate] value...’ attitude farther downstream can sometimes end up selling movie tickets, oddly enough. Paradoxical, but there you have it.
Of note before I step out for the night – the COPPER GREEN compartment was created on or about December 2002 and continued until mid-2006, when it switched compartment names.
Cambone may have expanded COPPER GREEN, and applied the ACCM measures, after he found he and Rummy lacked appropriate legal cover. Hence the freak show that has ensued since:
– the Army refusing to author the revision of the Field Manual and Appendix M, lest they be tagged later on for fucking something up.
– Camp Nama, No, the field detention sites in Afghanistan and other JSOC and DIA detention and interrogation programs worldwide.
– the careful wording of our sitting President’s Executive Order (by Greg Craig? who wrote it?) exempting JSOC and DIA by simply not mentioning or forbidding them from detention or interrogation:
The CIA. Not JSOC (and their Tactical Support Team, not to be confused with the Intelligence Support Activity) or DIA’s (Strategic Support Branch).
– Harward’s installation at JTF-435 at McChrystal’s urging.
– the faux pushback by Liz Cheney et al, who simply want it to be official policy again, versus unacknowledged SAPs carried out by JSOC with a wink and a nod.
I thought Rumsfeld was in the news several times in those few years as having written several recensions of the ArmyField manual. one study I saw seemed to look like there was a 1992 version that had endured quite a few years. Going by memory, next, I thought there was a revision of afm sometime around when a cruise accidentally impacted a China consulate in one of the wars toward the end of Clinton*s 2nd term. I wonder if any of the afm recensions are available at plain vanilla strategy and tactics sites. Also by memory, I think there was a last recension or 2 of afm around the time Bush began to have to write eo*s taking a public stance of opposition to tocha, ~2007ff. Maybe useful to intercalate afm recensions into timeline. I*m not sure mere classified annexes mitigates the problems many in leadership in mil would have experienced for numerous years by the time the entire tocha as US policy paradigm had passed+, and there was an administration by the opposition political party; which might make existence of some profiling of the afm recensions timeline a likelihood.
_____
+I supposed knowledgeable people would distinguish between **US policy**, and the classified portions of afm; so, perhaps that is what I am overlooking. For textual completeness* sake, however, all this comment*s foregoing is only about dOd, ostensibly.
Thank you for spending time trying to figure out the time line for each of the participants in the macabre drama of the US torturing prisoners within its official control.
EW,
Thank you once again for your prodigious work on these diaries, even though it seems like our somnolent and perhaps complicit DOJ, and our spineless and incurious Congress, seem not disposed to do anything about the incriminating evidence that you compile, day after day. I just have to hope that your efforts will not go unheeded.
I, among others, encourage you to compile a series of your diaries into book form where, like Anatomy of Deceit, your efforts will receive wider notice and hopefully make a greater difference in restoring the fundamentals of our democracy.
At any rate, thanks again for all the work you are doing!
Bob in AZ
Give the lady time, it takes time to polish a turd let alone a steaming pile of shit. This truth is hidden like an onion and what a joy to watch the skill needed to peel back a layer at a time ,as EW does.
Tangentially OT – Speaking of things DOD, from the Los Angeles Times:
(My Bold)
Yoo redux?
Does he have a twin, and is this twin working in the Obama Administration?
A guy named Brennan?
I’m assuming that Rizzo is gone.
Bob in AZ
I propose a joint project with the the Plum Line to assemble a list of key national security and legal administration positions that do and do not require Senate approval. The process does matter, and there are key people (like the Staff Secretary in the Executive Office of the President, and the Deputy Assistant to the President for National Security Affairs) who could’ve stopped the madness under the last administration.
Someone wrote the Executive Order ordering the closure of GTMO and barring CIA black sites. It wasn’t the President; he has people for that. I have a feeling he’s been “staffed” into a corner. Clintonistas on one side, closet supporters of the MIC on the other.
But I also think it’s really easy for a person without military background to buy the propaganda that “CIA is bad, bad, BAD” and act on this.
Perhaps the CIA’s unrealized assassination squad was a key part of reinforcing this, too. “Oh look how bad, BAD that CIA is! Good thing you kept them from having black sites, sir!”
Not a stretch at all. “Green Zone” (don’t laugh) is one of the first movies since “Lethal Weapon” that actually has a plot line with rogue military special operations forces, versus rogue CIA or FBI personnel.
There are some things wrong with it, but they got the dynamics right: task force guys can and do just wander into the battlespace and take shit over.
Yes, it does one hell of a job of showing the contractors run roughshod over the military, as well as riding roughshod over the CIA.
At one point, Matt Damon’s character has located a High Value Target. He maybe radios this back to his command, I don’t recall. What I definitely recall is that — out of nowhere — black helicopters full of ‘contractors’ swarm down and take the guy right out of his hands, without two words as to where or why.
In other words, what Damon’s character recognizes as “chain of command” does not even exist for the contractors, who subvert it without a second thought.
It’s as if there’s a ‘third army’ never reported on, never publicly acknowledged, that subverts Damon’s orders at every twist and turn.
Don’t want to give the movie away, other than to **highly** recommend that anyone who hangs out around EW’s see it.
Also, TBogg posted some candy-ass review of it last week, which seemed to simper about the fact that in its first weekend ‘The Green Zone’ made ‘a mere’ $15,000,000. And I thought as I read that ‘review’ posted by TBogg that the neocon played by Greg Kinnear couldn’t have done a better job of writing a ‘concern troll’ like ‘review’ of The Green Zone.
I’d be willing to stick my neck out and state that it may someday become a cult classic. It’s going to take time to ‘build’. It may also get more views after the Plame movie comes out.
Coupling that bit of information with crossword’s comments at 3,4 and 8 really raises the question of a separate, compartmentalized set of authorities for JSOC torture that continues to this day. Note also that this time in 2003 to late 2004 is the height of the free-wheeling days of McChrystal running JSOC while avoiding the normal chain of command to answer primarily to Cheney (with likely input from Rumsfeld and Bush lurking somewhere around there, smirking at how tough we were getting). I can’t help getting the feeling that this separate, compartmentalized authority, though, is the broadest possible, drawing on perceived wartime Commander in Chief authority to simply do “what it takes” in the interests of national security. I wouldn’t be surprised if it were not longer than a few sentences explaining how these JSOC activities are “exempt” from virtually all restrictions.
That’s why I look at the LA Times report that MadDog found for us as pure disinformation. Several of my recent diaries have described current actions regarding prisons in Afghanistan as a “shell game” that is being employed along with a concerted propaganda drive to paint McChrystal, who is one of the principle drivers of the very worst abuses of the whole torture program, as the new warm and fuzzy face of our citizen-friendly COIN activities there. So I completely reject the report that McChrystal feels that housing foreign prisoners in Afghanistan would hinder his stabilization efforts. He is an expert at hiding prisons and prisoners and I’m sure he and Harward would be happy to disappear as many prisoners as Obama needs to make go away.
Right after he issues his statement that he would never, ever do such a thing. Just another feint in the shell game.
The Most Progressive President Ever™ didn’t know, or care to know, the difference.
JSOC leadership, the stay-behinds at the Pentagon and the Clintonistas at the NSC were happy to oblige.
For the sake of argument, the “difference” is that JSOC direct action and intelligence personnel were doing the same or worse as CIA CTC personnel and contractors. He didn’t know the difference or understand the Tier system until the Somalia incident.
Missing in our discussions – but something I believe EW has hinted at being a possibility, given the research – is whether or not JSOC and/or DIA personnel were “interrogating” on the battlefield prior to both CIA CTC involvement and the push for legal guidance to institutionalize it.
Building on that, I have seen several commenters wonder out loud if it was JSOC doing the initial interrogations, and since they had institutional knowledge – and the CIA CTC paramilitaries did not – they shared what they knew with M&J.
M&J then pushed to institutionalize it; with appropriate legal cover, of course.
The first CTC assets were on the ground on September 26. When did the initial JSOC footprint arrive?
If you think things are wild now, imagine the environment they operated in, and the latitude they must have been given. And who ran TF-K-BAR?
Harward:
Oh, CIA certainly had the institutional knowledge, to be called upon when they needed it.
But JSOC was certainly interrogating on the battlefield prior to CIA/CTC involvement, and before 9/11. I pointed this out, in my “Targets of Opportunity” article last June, where I pointed out that before Mitchell/Jessen there was Mitchell’s earlier operation, KnowledgeWorks, run together with Army Special Operations Psychologist, Lt. Colonel John C. Chin. Chin was Command Psychologist in Delta Force, Fort Bragg, and in JSOC for five years.
I wrote then:
Later, I found that this explanation re “debriefing” in the CIA OIG report (pg. 6, italics in original — big PDF)):
But then, we are trying to prove the existence of something that was always black and hidden, and even was dug blacker and more hidden after the revelations of the 1970s, when much of the interrogation program was given over from CIA to DoD’s Project X — but of course CIA was always in charge of this. CIA has long detailed individuals to the military, as cover, and sometimes without the knowledge of DoD. Special Forces were an arm of CIA covert intervention in other countries going back some time.
In the end: JSOC, DIA, CIA, Army, Navy, etc. — they’re all arms of the U.S. government.
The off-the-shelf teams should be included, too (as the recent revelations of the private assassination operation). That’s what Iran-Contra was really all about. Duane Clarridge… what a surprise (not).
I think the motto of the United States military and intelligence agencies should be “By Hook or by Crook”.
I’m going to defer to you, you’re the SME when it comes to that!
Jeff, that still leaves this innocent abroad with a question that goes back maybe to crossword @ 27. Is there anyone who knows the whole story? (Ok: Dick Cheney, but apart from him.) Are you saying, crossword, that most people, including maybe the president, don’t know the whole story? Or have an overview but don’t know the details? I’m not putting this well because I’m still trying to figure out the questions.
If I knew that, then logically I would know the whole story ;-)
So that’s one of those questions that can’t be answered. I’ve been told that of those who didn’t know, many suspected many or most of the pieces, even if they weren’t read in. In the military, you “stay in your own lane”, but that doesn’t mean that gossip and friendship ties don’t exist. You can put a lot together just by the changes in where people are posted, and changes in assignment.
But “stay in your own lane” means, among other things, that you don’t seek to find out more than you should already know.
I think, re interrogations and torture, one has to understand that these things are institutionalized, and have been for decades now. That’s the importance of the MKULTRA/Artichoke/Bluebird/MKNAOMI material, the Frank Olson stuff, or Iran-Contra off-the-shelf operations, Operation Phoenix, Operation 40/the Cubans, School of the Americas, etc. You could say the CIA knows most of this, the NSC, top Pentagon brass, some members of Congress, ex-Presidents. Like the mob, once you are a part of this world, you are a part forever. If you leave, you are, like Ellsberg and Agee were, made anathema. A certain amount of dissidence is tolerated, but I can’t say where the line is that one could cross.
The latter.
I believe the common term for that is ‘plausible deniability’.
Gosh. It’s a little early for popcorn, but EW, crossword, and Jim White @ 20, you have got me glued to the screen.
Will it matter if they didn’t?
After all, we don’t look back.
Unfortunately, nothing will happen during this administration. I think everyone can agree on that.
What tripe.
He whispers to a brand new associate with no power at OLC that she is somehow responsible for what a different department, DoD, does, all without any word by him with his seniority to Haynes or to Rumsfeld and without the guts to sign out on anything?
HOw could anyone possible sell that approach short? Have the guard dog go tell a chicklet that they are supposed to keep the foxes at bay – not the foxes outside their own henhouse, even, but the ones over in another department. A department he had over and over rolled for.
“Short” is not the word that comes to my mind on that one.
Well, she wasn’t at OLC at that point–this is when she moved to DOD (in a more senior role–writing get out of jail free cards has a way of advancing your career quickly). He’s basically saying that she was in an institutional spot to make sure this didn’t happen. ANd Goldsmith is saying that Haynes never heard of it. Now, I think Goldsmith’s biggest blinders relate to Haynes (who brought him in in the first place). So I don’t necessarily buy that. But it is worth considering what important function Koester was brought over to DOD to serve.
I didn’t know she was DOD then, but the complaint is still the same. She was an underling. Philbin is just being cutesy to try to pretend that when you have torture being signed off on by people like Bybee and Yoo and Ashcroft and Haynes and Rumsfeld and Tenet, that his whisper in Koester’s ear had any kind of credibility.
She couldn’t overrule Haynes or Rumsfeld and he didn’t even have the balls to put the prohibitions in writing and address that writing to the GC who had asked for the original torture support, Haynes.
I agree with you about Goldsmith having a big soft spot on the Haynes front (and I’m still confused over the anonymous email that Goldsmith’s pal was mocking and which indicated that Goldsmith himself was involved with the Working Group torture product), but soft spot or not, Philbin’s just posing to pretend that the right way for OLC to effect a limiter on the 24 techniques was for Philbin to make growly noises at Koester.
If the general counsel for a company comes to your firm for advice and your senior partners give them a written ok for proceeding based on broad, blank check language, you can’t credibly claim that you reined in that blank check bc you had someone at the firm call a newbie staff attorney and tell them that they were responsible for keeping the Sec of Defense and his GC coloring within the lines, even though you aren’t going to put that in writing.
To say that the memo wasn’t a blank check “at least as of the time [koester]started to work at DoD” (although yeah, before that maybe so) just doesn’t carry.
If Philbin wanted something reined it, it wasn’t all that difficult for him to just sign that out to Haynes.
I’m not saying it wasn’t a blank check. I’m saying Koester had a purpose at DOD and it was probably precisely the opposite of reigning in the practices and it may well have been about maintaining the compartments.
FWIW, that email has always read to me like someone who knew how much shit Goldsmith took inside the Admin laughing at the notion that he would be painted as a key torture architect. It’s all relative, but the original writer of that email seemed to have zero firsthand knowledge.
I know you weren’t saying it wasn’t a blank check – I mean Philbin saying that (well, yeah Capn Jack, maybe it was a blank check, but not after I whispered to Our Gal Jen) doesn’t hold for his argument.
I’m not sure I follow which email/email writer you mean (you think Philbin was laughing at the notion that Goldsmith [or Philbin}would be painted as a torture architect?
My point was that Philbin’s email doesn’t hold together as a response to Goldmsith’s query. You can’t sell him and OLC short enough if he’s trying to pretend that chat time with Koester meant anything when all he needed to do was sign out and sign off for Haynes. Except that would take Mora style guts.
On your point about Koester I think you’re right – Haynes and Rumsfeld getting someone already “read in” and who proved so willing on something like the Legal Principles doc and got jazzed over being in torture central, well, that was a lovely gift from DOJ to DoD.
BTW – I can kind of see why, after Philbin actually testified to Congress under penalties of perjury and on behalf of OLC and DOJ that the 24 techniques were “legal” that OLC might not feel it had to issue out another memo and no on might have wanted to tackle that, with the UCMJ overlays and the fact that they are not necessarily anteing up the same info to the armed services committee that they are to intel at that time.
And right about then, June/July 2004, the Padilla case and its DOJ solicited (remember that Bybee didn’t just give technical advice on disappearing Padilla into military custody, he actively and affirmatively recommended that Padilla be taken from the court’s custody and DOJ should facilitate his turnover to the military to disappear) torture was on a front burner.
Rashul came out in June 2004 and rocked their worlds. All of the DOJ lawyer’s hidden torture involvement that had been *working* so well for the DOJ torture lawyers now had some pushback from an unexpected source – the Sup Ct. “Their” Republican Sup Ct. And “their” court had not sounded nearly as kindly during the questioning on Hamdi and Padilla as they had hoped.
The panic over the courts actually fulfilling their role as a check on the Exec was palpable and had Comey out spinning his Padilla presser in June, 2004. Everyone was torn between wanted to shore themselves and the dept up in the face of the torture revelations (which, until the pictures broke, seemed to be being nicely handled – with releases of info on charges against soldiers for mistreatment not causing even a ripple until the pictures came out) from Abu Ghraib and leaked memos, and yet not wanting to be the next official signing off on torture of US citizens on US soil as a case like Padilla progressed. That was the big military problem – it wasn’t limiting it’s torture to even the offshore pre-Rashul, seemingly “safe” sites like GITMO, Bagram and Abu Ghraib – it had become so riddled with the disease of its CIC that it was using So Car as a base from torture too.
So once Rashul was decided, things were not happy times for the military and DOJ torture cabal and Hamdi/Padilla were like a sword over their heads. Hamdi they could try to moot out and work a deal via Saudi Arabia, but what were they going to do on Padilla? And all the hundreds at GITMO as well, especially with a very different Aug 2002 memo out there – this one from a CIA analyst demonstrating that a lot of the people, now within the reach of the courts per Rahsul, that had been bought or kidnapped for the torture interrogation experiments were … completely innocent of any affiliation with terrorism.
Luckily, Dems got control and everything on accountability died quietly in the night.
When the torture started the constitution ended.
I believe there where live video feeds that cheney watched and directed so I don’t buy No one knew what they were involved with was totally treason argument. cheney , the vile triggerman knew and directed.
Why isn’t he in jail for murder?
Iraq Inquiry asks to question George Bush’s senior officials
The Chilcot Inquiry into the Iraq War could take an explosive new twist after it emerged that leading figures in George Bush’s administration have been asked to give evidence to it.
LINK.
Not gonna happen.
Yet it does root another divergence in a big event tree somewhere.
Each one that passes gives us as a nation a smaller chance of coming out anywhere we should want to be.
“no one is above the law” Yes they are.
wondering why Wolfowitz is not on that list
Niger documents?