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Rendering Opinions on Rendering Detainees out of Iraq

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This is going to be a really weedy post trying to explore what was going on with just about the only named opinion that Jack Goldsmith wrote at OLC that has gotten focused attention–a March 19, 2004 one cataloging the protected status of different kinds of people captured in Iraq. I will return to the significance of it in a future post. But this post shows that the topic of Goldsmith’s opinion appears to have been debated up until the time he left DOJ–and after he left, another opinion served to authorize the rendition of detainees from Iraq.

Addington objects to Goldsmith’s decision that Iraqi terrorists have protection under Geneva Convention

As Goldsmith wrote in Terror Presidency, this issue is one of the first he dealt with after he became OLC head in October 2003.

“Jack,” Gonzales said after cursory congratulations on my new post, “we need you to decide whether the Fourth Geneva Convention protects terrorists in Iraq. We need the answer as soon as possible, no later than the end of the week,” he added in his deadpan, nasally Texas drawl. (32)

After Goldsmith concluded in October 2003 that Iraqi members of al Qaeda were protected under the Geneva Convention, David Addington went apeshit.

“They’re going to be really mad,” [Patrick] Philbin told me as he and I were driving from the Justice Department to the White House to explain to Gonzales and Addington why the department that Iraqi terrorists were protected. “They’re not going to understand our decision. They’ve never been told ‘no’.”

Philbin was right.

“Jack, I don’t see how terrorists who violate the laws of war can get the protections of the laws of war,” said Gonzales, calmly, from his customary wing chair in his West Wing office.

[snip]

“The President has already decided that terrorists do not receive Geneva Convention protections,” [Addington] barked. “You cannot question his decision.” (41)

Goldsmith went on to develop his oral advice into a formal opinion. And while he drafted that on March 19, 2004, he never finalized it.

Debate over detainee status between June and October

Now, as I’ll show below, the memo (or what was explained to be the memo) caused a bit of a firestorm in October 2004. But before that happened, the OLC Vaughn index shows, there appear to have been several rounds of discussion on the issue.

While the Vaughn index doesn’t list the March 19 version of this memo, it appears to show what might have been a June 29, 2004 version addressing the same topic.

This is a ten-page draft, from OLC to CIA. It is confirming legal advice, which was initially given orally, on whether a detainee is considered a protected person if involved in counterterrorism acitivies and captured.

Only this June 29, 2004 memo is 10 pages, whereas the March 19 memo is 23 pages.

Then, the following day, there is what may be CIA’s comments on that draft (with one additional page and hand-written notes), though this description doesn’t mention protected status.

This is an eleven-page document with handwriten comments, from the CIA to OLC, commenting on a draft letter regarding terrorism and interrogation of detainees.

On July 2, the same day Scott Muller wrote Jim Comey to tell him what had been approved after he and John Bellinger left a principals meeting discussing the interrogation of one particular detainee, CIA sent a second short memo describing the CIA securing custody of a detainee.

This is a two-page memo with a fax coversheet, providing legal advice regarding the CIA securing custody of a detainee and use of interrogation methods.

On July 14, three days before Goldsmith’s accelerated departure (remember, he originally intended to stay until August 6, but left on July 17 instead), there are nine copies (documents 50-58) of a one-page OLC memo written to the record (that is, not sent to the CIA per se) addressing whether a captured member of “a terrorist network” is legally protected.

This is a one-page OLC memo on whether a captured member of a terrorist network is legally protected under international law.

The number of copies written to the record suggests there may have been a face-to-face meeting on the subject after which the copies of the draft discussion were retained by OLC.

On July 15 (two days before Goldsmith left), there is a 5-page memo on the same subject.

This is a five-page OLC memo on whether a captured member of a terrorist network is legally protected under international law.

On July 21 (four days after Goldsmith’s departure), there is a 10 or 11-page document plus fax cover sheet from the White House to DOJ.

This is a ten-page document with handwritten marginalia and a fax cover sheet, which contains pre-decisional communication regarding detainees, that was sent from the EOP to the DOJ.

This is the only document in this set written by the White House.

After the White House document (which may or may not relate to the protected status of detainees) the dated OLC communication in the Vaughn Index consists exclusively of advice about torture techniques for several months.

Then, on October 4, there are a 4-page and a 5-page OLC memo written to the record “from OLC regarding application of international law, as it relates to detainees.”

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“We all benefited” from Margolis’ tenure

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A bunch of former DOJ bigwigs just wrote a seemingly pointless letter to Pat Leahy to assure him that David Margolis does not have a partisan–and they mean Left-Right partisan–bias. (h/t Main Justice)

I say “pointless,” to begin with, because after last Friday’s flaccid hearing on the OPR report, is anyone actually imagining that Pat Leahy is going to make a stink because the OPR Report got spiked?

And besides, no one thinks Margolis is a flaming political partisan. He’s a DOJ partisan, always putting the Department first, even ahead of justice. Hearing from a bunch of former DOJ bigwigs claiming he has no bias isn’t going to allay those concerns.

What’s particularly pathetic about this document, though, is the number people with a vested interest making the following weak claims:

we all benefited during our tenures from the wise counsel and good judgment of David Margolis

[snip]

While we do not comment here on the merits of the decision regarding the discipline of John Y00 and Jay Bybee, we are certain that it was reached conscientiously and wholly without partisan purposes.

[snip]

As those who have benefited from David Margolis’s counsel, we know he remains a great asset to the Department and the country for the present and future.

Let’s start with Alberto Gonzales, who gave approval for the use of torture techniques long before OLC did, and who was therefore perhaps the person most in need of the Get Out of Jail Free card that John Yoo wrote him. He signed this document.

So did George Terwilliger, Alberto Gonzales’ defense attorney, representing him on a number of ethical and potentially criminal issues, and therefore, presumably, on torture, if it ever came to that.

There’s Michael Mukasey, about whom Mary wrote a 2,000 word post describing his many conflicts on this issue. And Mark Filip, who helped Mukasey try to spike this report from the start. And Craig Morford, who was Acting DAG when Mukasey reviewed the Steven Bradbury memos and found them reasonable, which was itself a key part of spiking this investigation.

And how about John Ashcroft, huh? He wants you to know that he’s sure that Margolis judged correctly when Margolis determined that Ashcroft’s subordinates did not willfully do wrong when they shredded the Constitution eight years ago under Ashcroft’s inattentive watch. The same Ashcroft who reportedly pushed for some kind of “advance pardon” for the torturers. I sure trust him to tell me whether Margolis judged rightly or wrongly.

Then there’s Paul McNulty who, as US Attorney for Eastern District of VA, declined to charge people who engaged in torture and murder pursuant to these memos. The same guy whose decision to decline prosecution was reconsidered, given all the damning evidence in the OPR Report. Do you honestly believe that McNulty doesn’t want to have his decisions–which shortly preceded his promotion to be Deputy Attorney General–scrutinized that closely?

There’s Jim Comey, who may be one of those refusing to comment on the merits of the decision here (well then, why comment?), but who, when he lost the battle on the torture memos, expressed sadness “for the Department and the AG.” But not, it should be said, for the rule of law.

Add in Larry Thompson, who is another of the lawyers who, at least according to the OPR Report, reviewed and approved of the Bybee Memos. He thinks Margolis did the right thing too.

And, finally, David Ogden, who got fired not long ago, perhaps because he was happy to put politics above the law.

Now I’ll leave it for comments to unpack why people like lobbyist hack Jamie Gorelick wants to boost Margolis. But for now, just know that when at least 10 of these 17 bigwigs say they benefited from Margolis’ “wise counsel and good judgment,” they may well be talking about personal–and significant–benefit.

A Momentous Day to Lose Your Documentation

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As I explained in this post, at least ten documents that OPR should have had to conduct its investigation into the writing of the torture memos disappeared sometime over the course of the investigation (significantly, CIA had an opportunity to come and take all the documents away for a while just after OPR first got access to them).

In this post, I showed how that prevents us–at least using just the unclassified report–from confirming whether or not John Yoo ever read the document making the following points:

  • The techniques the US was considering using on detainees amounted to torture
  • Torture produces unreliable information
  • America’s use of torture would increase the chances that Americans, if captured, would be tortured themselves

But there’s one more reason losing a large document, sent on July 25, 2002 from CIA and OLC (it probably originally came from DOD), is a problem: Because that document was exchanged on one of the most momentous days of the entire development of the torture memos.

Here’s a quick review of the most significant dates in the development of the torture memos:

April 11, 2002: John Yoo and Jennifer Koester officially begin working on the torture memo, though Yoo had already done research for it

July 13, 2002: Michael Chertoff tells CIA, Yoo, and others that DOJ will not issue an “advance declination” (a Get Out of Jail Free card) covering the torture program

July 16, 2002: David Addington, Alberto Gonzales, and Tim Flanigan order Yoo to reverse course and include the Commander-in-Chief and defenses section in the Bybee One memo to make up for not offering an advance declination

July 24, 2002: Yoo gives John Rizzo oral approval to use six torture techniques (attention grasp, walling, facial hold, facial slap, cramped confinement, and wall standing) but says DOJ needs more data before approving waterboarding and other more controversial techniques, possibly including mock burial

“Some point thereafter”: Yoo tells Rizzo it will “take longer” to approve remaining torture methods if mock burial is included

July 25, 2002: CIA sends 46 to 60 pages of documents–possibly DOD documents–to OLC; those documents have since been lost

July 26, 2002: CIA sends 3 (or 4?) more DOD documents to OLC, including a list of torture techniques used in SERE; though the OPR Report doesn’t say it in the unclassified section, OLC verbally approves remaining torture techniques (except mock burial); CIA requests, for the first time, written approval for specific techniques

August 1: Bybee One and Two memos signed, as well as letter to Gonzales on CAT

There are three main plot lines, from what we can see, in the development of the Bybee Memos: first, the refusal of an advance declination and the replacement with it of other ways to allow torturers to Get Out of Jail Free. Then, the decision not to approve mock burial in an effort to get the memo quickly. And, finally, CIA’s last minute request to get the torture techniques approved in a written document.

Two of those three events happened sometime between July 24 and July 26. I’d suggest they might even be related. And 60 pages of documentation (or maybe 46, we don’t know)–documents that might explain how mock burial got dropped and/or a written list got added–have disappeared.

My gut feel is that the disappearing documents–assuming their disappearance from a SCIF was not just a remarkable accident–have more to do with the JPRA document than with the change in approach that day. But there’s the distinct possibility that those documents also would have explained more about the dropped mock burials and the written list of torture techniques.

AGAG Doesn’t Recall What He Said Monday

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Well, that’s not entirely correct. Rather, Alberto Gonzales is backing off what he said Monday, when he supported a torture investigation.

"Contrary to press reporting and based on the information that’s available to me," Mr. Gonzales said during an interview Thursday with The Washington Times, "I don’t support the investigation by the department because this is a matter that has already been reviewed thoroughly and because I believe that another investigation is going to harm our intelligence gathering capabilities and that’s a concern that’s shared by career intelligence officials and so for those reasons I respectfully disagree with the decision."

[snip]

"It’s an endorsement of his right to exercise his discretion," he said. "I’m just saying I would have exercised my discretion in a different manner, given the information I have."

So maybe the best explanation is that on Tuesday, Gonzales didn’t recall the investigation he purportedly did when he was still Attorney General.

Or maybe the better explanation is that someone finally gave him the sinecure he was looking for.

Update: My previous link went dead, so I replaced the content with the original Washington Times piece and fixed the timing.

More on CIA’s Fictions about Executive Branch and Congressional Briefings

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I’ve been promising to return to the way that the CIA IG Report discusses the Congressional and Executive Branch approvals for the torture program. Particularly given John McCain’s complaint that CIA misrepresented what he said in a torture briefing, I thought it time to do so.

A close look at the claims the IG Report made about approvals shows it:

  • Repeats earlier CIA vagueness and outright lies about Congressional briefings and individual Members’ responses to those briefings
  • Emphasizes the centrality of DOJ to approvals, at times misleadingly 
  • May obscure the timing of and the participants in White House approval of the program

Now, remember, it’s not clear whether these fictions are the IG’s fiction, or whether John Helgerson’s team was given crappy information. One other thing to keep in mind, though, is that the IG Report appears to have been drafted as early as February 24, 2004–over two months before it was ultimately released. While Cheney had a chance to review the document, DOJ did not. And Congress was only given the document the week of June 18, 2004, when Ashcroft started balking at its content.

What follows is a paragraph by paragraph assessment of the CIA IG’s claims about Congressional and Executive Branch approvals for torture. 

45. At the same time that OLC was reviewing the legality of EITs in the summer of 2002, the Agency was consulting with NSC policy staff and senior Administration officials. The DCI briefed appropriate senior national security and legal officials on the proposed EITs. In the fall of 2002, the Agency briefed the leadership of the Congressional Intelligence Oversight Committees on the use of both standard techniques and EITs.

To some degree the first sentence of the paragraph matches what appears in the SSCI Narrative, which shows the following "consultations:"

April 2002: OGC "began discussions with [Bellinger] and OLC concerning the CIA’s proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation. Bellinger briefed Condi Rice, Stephen Hadley, Alberto Gonzales, John Ashcroft, Michael Chertoff

Mid-May 2002: OGC meets with Ashcroft, Condi, Hadley, Bellinger, and Gonzales

July 13, 2002: OGC met with Bellinger, Yoo, Chertoff, Daniel Levin, Gonzales

July 17, 2002: George Tenet met with Condi, who okays torture program

Though of course, it uses a rather broad definition of "summer." I’m also curious about the "at the same time" description. The SSCI narrative notes that OGC didn’t talk to OLC until after the first consultations. And neither of these account for the alleged earlier approvals going back to at least May. Neither of these account for the meetings between the War Council (Addington, Yoo, Haynes, Rizzo, and Gonzales) going back much further. Furthermore, neither lists the July 13, 2002 letter from Yoo to Rizzo basically instructing him how to game the law. In other words, I wonder (as I have since the SSCI Narrative came out) whether the NSC-CIA discussions are really a distraction from the much earlier approvals involving other lawyers like Addington and Haynes?

Now onto the sentence describing the Congressional briefing. Read more →

Gonzales’ Choice

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This is what happens when a corrupt Administration doesn’t distribute the sinecures to all. (h/t MadDog)

Former U.S. Attorney General Alberto R. Gonzales on Tuesday defended the decision of his current successor, Eric H. Holder Jr., to investigate alleged prisoner abuse by CIA interrogators over President Obama’s desire to look forward.

"As chief prosecutor of the United States, he should make the decision on his own, based on the facts, then inform the White House," said Mr. Gonzales, who was appointed to the post by President George W. Bush in 2005 and resigned in 2007.

(He goes on to say that if people exceeded guidelines, it is fair to punish them.)

And who can blame Fredo? Nora Dannehy is still investigating whether Alberto Gonzales politicized DOJ, picking and choosing cases and US Attorneys for political reasons. This offers an opportunity for him to defend the independence of the Attorney General, even if his statement contradicts all his actions in that position. It looks good, you know?

I’m particularly curious whether Gonzales’ statement is designed to forestall investigation in his role both in 2005 (when, the torture apologists claim, with only some accuracy, DOJ investigated but did not pursue these abuses) and/or his alleged role much earlier in the process, giving day to day approval for techniques used by the torturers?

I will say this though: welcome, AGAG! Let’s hear more from you on the importance of DOJ independence. Not because your words have any credibility. But because it suggests you might be willing to say more–much more–to defend yourself in the face of those who refused you a sinecure.

Gonzales and Bush Haven’t Spoken

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It has been pretty apparent, given Alberto Gonzales’ utter failure to stumble on any wingnut welfare since resigning, that the Bush camp hasn’t been helping him out much.

But an interview in the NYT shows just how much relations between Gonzales and Bush have chilled.

Do you still talk to President Bush?
I have not spoken with the president since he left office.

Have you ever been tempted to pick up the phone and say hi to him?
I do, of course, think about our time together, and there are times when I think about doing that. But listen, I know that he has his life to live. I’ve got challenges and my life to live as well.

This of course means Gonzales has not been invited to Bush’s legacy planning meetings (not surprisingly). But it also means Gonzales hasn’t even bumped into Bush in over six months. That would be hard to do, if Gonzales were traveling normal Texas Republican circles.

I’m particularly interested in Gonzales’ representation of the timing of this: he says nothing about whether he spoke to Bush before he left office. I wonder whether something happened at the end to make Gonzales clam up? Did Gonzales, for example, ask for a little Bushie pre-emptive pardon, just like Cap Weinberger got?

Add in Gonzales’ whining about his legal bills–and the suggestion that Bush and Cheney have not been forthcoming to help with them–and it all seems to reinforce the notion that Bush has sacrificed Gonzales to legal problems he has at least partly because of larger Bush Administration actions.

Have you asked Bush or Cheney to help defray your legal bills?
I have not asked them personally.

I think you should ask them. They got you into this pickle. Shouldn’t they help get you out?
Listen, I have a group of supporters that are helping me fund-raise. They’re making decisions about how to do this successfully.

What are your legal bills like?
Substantial. I’ll say that obviously it’s been a burden. We did establish a legal-defense fund, and we have raised and are in the process of raising additional monies to pay for the lawyers.

But then, Gonzales has been whining about his bills for some time, to no avail. 

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When and To What Degree Was John Ashcroft Read Into the Illegal Surveillance Program?

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We have long known that John Ashcroft was not properly read into the illegal domestic surveillance program. Senator Whitehouse suggested as much when Attorney General Gonzales testified in July 2007. And both Gonzales and Robert Mueller revealed that John Ashcroft–from his ICU bed–complained that his advisors had not been able to get read into the program and as a result he was ill-informed about the program.

But here’s an interesting detail about the hospital visit:

I also recall that, prior to the time I departed, General Ashcroft briefly mentioned a concern about security clearances for members of his staff regarding the NSA activities that were the subject of the presidential order.

[snip]

Well, here’s the relevant detail from Mueller’s notes:

The AG also told [Card and Gonzales] that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.

But the IG Report raises new and different questions about when–and to what degree–John Ashcroft was read into Cheney’s illegal domestic surveillance program. It includes the same details as Gonzales and Mueller have already revealed (though it looks like Gonzales was rather more cautious when speaking with the IG than before, and the IG appears not to have asked Mueller for his version of the story).

Former Attorney General Gonzales and former OLC Assistant Attorney General Bybee both told the DOJ OIG that they did not know how Yoo became responsible for analyzing the legality of the PSP.

[snip]

Gonzales told the DOJ OIG that the Yoo opinions represented the legal opinion of DOJ, and that it was Ashcroft’s decision as to how to satisfy his obligations as Attorney General. Gonzales told the DOJ OIG that Ashcroft complained to the White House that it was "inconvenient" not to have the Deputy Attorney General or Ashcroft’s Chief of Staff read into the PSP, but Gonzales also stated that he never got the sense from Ashcroft that this affected the quality of the legal advice about the program that DOJ provided to the White House. As noted, Ashcroft declined the DOJ OIG’s request for an interview. The DOJ OIG therefore was unable to determine from Ashcroft whether he sought additional DOJ read-ins to assist in the legal analysis of the program, how hard he may have pressed for these additional read-ins, or whether he believed he was receiving adequate legal advice about the program from Yoo alone during this early phase of the PSP.

But there’s one big–huge–tell about whether or not Ashcroft conducted sufficient analysis of this program to approve its legality: 

Attorney General John Ashcroft approved the first Presidential Authorization for the PSP as to "form and legality" on the same day he was read into the program.

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George Bush PERSONALLY Sent Card and Gonzales to Thug Up Ashcroft

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Bush Thug Life

by twolf1

Today’s IG Report on illegal wiretapping answers another previously unanswered question: who called Mrs. Ashcroft to tell her Andy Card and Alberto Gonzales were coming to the ICU ward to rough of John Ashcroft.

George Bush did so himself.

From the report:

According to notes from Ashcroft’s FBI security detail, at 6:20 PM that evening Card called the hospital and spoke with an agent in Ashcroft’s security detail, advising him that President Bush would be calling shortly to speak with Ashcroft. Ashcroft’s wife told the agent that Ashcroft would not accept the call. Ten minutes later, the agent called Ashcroft’s Chief of Staff David Ayres at DOJ to request that Ayres speak with Card about the President’s intention to call Ashcroft. The agent conveyed to Ayres Mrs. Ashcroft’s desire that no calls be made to Ashcroft for another day or two. However, at 6:5 PM, Card and the President called the hospital and, according to the agent’s notes, "insisted on speaking [with Attorney General Ashcroft]." According to the agent’s notes, Mrs. Ashcroft took the call from Card and the President and was informed that Gonzales and Card were coming to the hospital to see Ashcroft regarding a matter involving national security. (24) [my emphasis]

That use of the passive–almost the only incidence of its use in this report–is a nice touch. I guess five Inspectors General still don’t want to admit that the President of the United States personally led this kind of thuggery.

Gonzales KNEW Ashcroft Was Too Sick to Reauthorize the Program–But Asked Him To Anyway

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Back when he was testifying before Congress, Alberto Gonzales played dumb about whether or not he knew John Ashcroft was too sick to sign the reauthorization for the warrantlesss wiretap program. But the IG Report makes it clear he was well aware Ashcroft couldn’t sign it.

On March 9, Gonzales admitted publicly that Ashcroft couldn’t sign the reauthorization.

Gonzales reasoned that Ashcroft, who was still hospitalized, was not in any condition to sign a renewal of the Authorization, and that a "30-day bridge" would move the situation to a point where Ashcroft would be well enough to approve the program.

But on March 10, here’s what happened. 

Gonzales told the DOJ OIG that he carried with him in a manila envelope the March 11, 2004, Presidential Authorization for Ashcroft to sign. According to Philbin, Gonzales first asked Ashcroft how he was feeling and Ashcroft replied, "Not well." Gonzales thetn said words to the effect, "You know, there’s a reauthorization that has to be renewed…" 

I know none of you had any doubt that Gonzales knew full well Ashcroft shouldn’t sign that reauthorization. But if you needed proof, now you’ve got it.