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How John Yoo Negated the Mental Suffering of Death Threats in the Bybee Two Memo

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It’s time to read the Bybee Two memo again.

Since the OPR Report came out, we’ve learned the following (some of it was already out there, but I, at least, hadn’t noticed it):

  • After his 63rd interrogation session, Abu Zubaydah experienced what his torturers call “hard dislocation”
  • An “issue arose” during the interrogation of Abu Zubaydah that two CIA lawyers discussed via email on July 10, 2002
  • In the days following CIA lawyers’ discussion of that issue, Criminal Division Chief Michael Chertoff got his own briefing on the torture memo (July 11), followed the next day by a meeting with Alberto Gonzales and probably David Addington (July 12), followed the next day by a larger briefing including Gonzales, Chertoff, John Rizzo and FBI Chief of Staff Daniel Levin that covered both the planned torture techniques and the torture memo (July 13)
  • After Chertoff told CIA at that July 13 meeting that he would not issue an advance declination of prosecution for torture, Rizzo asked for and received a memo laying out “the elements of the torture statute;” the July 13 memo focused closely on the definition of intent to cause mental suffering; Yoo’s supervisors John Ashcroft and Jay Bybee claim to be unaware of the memo
  • In his cable to AZ’s torture team written after both Bybee Memos were completed, Counterterrorism Center lawyer Jonathan Fredman relied on the language on intent from the July 13 memo, not the Bybee One memo
  • Also after the meeting at which Chertoff refused an advance declination, David Addington appears to have directed John Yoo to include several affirmative defenses in the Bybee One memo
  • The next draft of the memo–dated July 23 and for the first time addressed to Alberto Gonzales–included the affirmative defenses Addington had asked for as well as language on intent to cause mental harm adopted from the July 13 memo
  • In the days following that draft, several things happened to change the approach to torture authorization
  • CIA removed mock burial on its list of torture techniques because approving it would hold up the overall memo
  • CIA asked for a separate letter addressing specific techniques–what would become the Bybee Two memo
  • As part of several packets of information they received from CIA on the long term mental effects of torture, Yoo and Jennifer Koester almost certainly received a draft psychological evaluation noting that AZ had experienced “hard dislocation” after session 63, though we can’t prove that they saw that phrase because the copy of the document they received has been altered before being released in FOIA
  • A large packet of information received on the same day as one of the draft psychological evaluations disappeared from the OLC SCIF

All those details make it fairly clear that the Bybee Two memo was designed to respond to the July 13 memo. But they also help to prove that it failed to do what it was intended to do.

How John Yoo told the CIA to “negate” their specific intent to torture

Yoo’s July 13 memo stated that several things were necessary to prosecute torture for the infliction of mental suffering:

  • The commission of certain kinds of predicate acts, that included but were not limited to the use of procedures designed to profoundly disrupt the senses and/or the threat of imminent death
  • The infliction of prolonged mental harm as a result of those predicate acts
  • The specific intent to inflict the severe mental suffering from those predicate acts

But even if someone had the specific intent to commit those predicate acts and prolonged mental harm resulted, Yoo included an escape hatch. He basically said that if a person had conducted studies and based on those studies had concluded that prolonged mental harm would not result, then he could claim to have been operating with a good faith belief that those actions did not cause prolonged mental harm.

Specific intent can be negated by a showing of good faith. Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture. If, for example, efforts were made to determine what long-term impact, if any, specific conduct would have and it was learned that the conduct would not result in prolonged mental harm, any actions undertaken relying on that advice would have be [sic] undertaken in good faith. Due diligence to meet this standard might include such actions as surveying professional literature, consulting with experts, or evidence gained from past experience.

In other words, to “negate” the specific intent to cause prolonged mental harm that constituted torture, you could do a bunch of study and if that study showed no prolonged mental harm had resulted from these actions in the past, you could then claim that you had no idea that those actions might cause prolonged mental harm in the future, and therefore any deliberate actions that ended up causing prolonged mental harm weren’t really torture.

Abracadabra!!!

As I’ll show below, the Bybee Two memo was designed to show that CIA had done that kind of study. (Note, this is not an original observation; I’m fairly certain both Jeff Kaye and William Ockham have made this observation in the past.) But, as I’ll show in a follow-up post, it fails in what it was designed to do.

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CIA Lawyers Were Discussing “Issue that Arose” Three Days Before July 13 Fax

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My focus on the multiple versions of Abu Zubaydah’s psychological assessment led me to review the CIA OIG Vaughn Declaration from last August, and one document that was withheld caught my eye.

The document strongly suggests that the July 13, 2002 John Yoo fax that appears to have been used as CIA’s general authorization for torture was written in response to a specific issue that had already arisen with Abu Zubaydah.

The Vaughn Index was written in response to ACLU’s FOIA for documents relating to what would have been shown on the 92 destroyed torture tapes. From the descriptions in the Vaughn, it’s clear that most of the documents include things like plans for torture techniques written both before after after Abu Zubaaydah’s torture, plans for black sites, communication about the investigation into detainee treatment (I presume that treatment of al-Nashiri would be included, since his interrogations were also on the destroyed tapes, but not the Salt Pit death of Gul Rahman, which wasn’t taped), and interviews from the investigation.

And though there are a few documents that clearly are efforts to improve on the techniques used against AZ (including pictures), there are relatively few documents in CIA IG custody from the period of AZ’s most intense interrogation. There are:

  • “4-pages of handwritten notes, dated April 3, 2002, by a CIA officer regarding the interrogation of Abu Zubaydah.”
  • “A 1-page email,” dated April 5, 2002, “with an attached two page cable from a CIA attorney to a CIA officer regarding the interrogation of Abu Zubaydah.”
  • A “four page cable from the field to CIA Headquarters,” dated April 11, 2002, containing “information relating to the CIA’s terrorist detention and interrogation program” (note, this was the day Yoo officially started on the Bybee Memo).
  • A May 15, 2002 “two page memo from one CIA officer to another CIA officer discussing information, provided by Abu Zubaydah, relating to a classified counter-terrorism operation.”
  • A “1-page of handwritten notes dated July 24, 2002 from a CIA officer describing proposed interrogation techniques that could be considered for use on detainees.”
  • A “two page cable from the field to CIA Headquarters,” dated August 12, 2002, and “a 6-page cable from the field to CIA Headquarters,” dated August 24, 2002, both containing “information relating to the interrogation of Abu Zubaydah.”

(There’s also a cable listed with the date July 26, 2006, which given its place in the Vaughn Index might actually have been dated July 26, 2002, discussing AZ’s status.) There are also a few documents that pertain to discussions in DC (for example, a Memorandum of Understanding recording CIA’s version of an early meeting on the Bybee Memo).

Then there’s the email that sparked my interest, labeled Email-591, dated July 10, 2002, and classified as Top Secret.

This document is a 2-page email chain between CIA attorneys. The document contains the attorneys’ legal analysis as it relates to a specific issue that arose in the context of the CIA’s counter-terrorism program, which was created in anticipation of litigation.

In other words, on July 10, 2002, two of CIA’s lawyers were discussing something that came up–almost certainly (given the scope of the FOIA response) during Abu Zubaydah’s interrogation–in anticipation of litigation. And three days later, CIA lawyer John Rizzo would attend a meeting at which DOJ Criminal Division head Michael Chertoff refused to give CIA an advance declination for any crimes committed during Abu Zubaydah’s interrogation and FBI Chief of Staff Daniel Levin announced that the FBI would no longer have anything to do with the CIA’s interrogation program. Ostensibly, those responses came partly in response to Rizzo’s description of purportedly proposed torture techniques. Yet after that meeting, Rizzo asked John Yoo for a letter “setting forth the elements of the torture statute.” And the fax Yoo wrote in response–rather than the formal Bybee One opinion–would serve as CIA’s internal guide for the role of intent in the torture statute, particularly the way intent purportedly played into torture having to do with the infliction of several mental suffering.

All of which suggests the torturers did something to inflict severe mental suffering on Abu Zubaydah–one the CIA’s own lawyers recognized might result in litigation–just before July 10, 2002.

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The Context of the July 13 Fax

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As I pointed out in an earlier post, when Counterterrorism Center lawyer Jonathan Fredman sent the torturers in Thailand a green light for torture in August 2002, he relied on language about intent from a July 13, 2002 fax from John Yoo to John Rizzo rather than the finalized August 1 Bybee Memo. In a second post on this, I also showed that both of Yoo’s nominal supervisors–Jay Bybee and John Ashcroft–claim they knew nothing about that fax. In this post, I’m going to show how that fax appears to arise out of DOJ discomfort with CIA’s torture program.

As the timeline below shows, Yoo dated (but did not send) the fax the same day that the numerous parties involved in reviewing the Bybee Memo had an apparently contentious meeting at which they discussed the draft memo as well as the CIA’s torture plan (I’m doing a big update on the Torture Timeline, so some of this is not reflected in the timeline yet).

July 10, 2002: John Yoo tells Jennifer Koester that they will present the Bybee memo to NSC at 10:45 on July 12 (and names the Bybee Memo the “bad things opinion”!).

July 11, 2002: John Yoo and Jennifer Koester have briefing session with Michael Chertoff on Bybee Memo.

July 11, 2002: An OLC paralegal cite-checks the draft, and someone schedules a July 12 meeting with Alberto Gonzales and a July 13 meeting with (effectively) NSC.

July 12, 2002: First draft of Bybee Memo distributed outside of OLC.

July 12, 2002: John Yoo meets with Alberto Gonzales (and either David Addington or Tim Flanigan) on Bybee Memo.

July 13, 2002: John Yoo and Jennifer Koester present July 12 draft to John Rizzo, John Bellinger, Michael Chertoff, Daniel Levin, and Alberto Gonzales. Rizzo provides overview of interrogation plan. Chertoff refuses to give CIA advance declination of prosecution. Levin states that FBI would not participate in any interrogation using torture techniques, nor would it participate in discussions on the subject.

July 13, 2002: Rizzo asks Yoo for letter “setting forth the elements of the torture statute.”

July 15, 2002: John Yoo faxes John Rizzo July 13 letter on the torture statute.

July 15, 2002: John Yoo sends Jennifer Koester an email telling her to include a footnote in the opinion stating that they had not been asked about affirmative defenses like necessity, self-defense, or commander-in-chief powers.

July 16, 2002: John Yoo and Jennifer Koester meet with Alberto Gonzales and (probably) David Addington and Tim Flanigan. Yoo shared the July 13 fax with them. At the meeting, it is decided that Yoo will include Commander-in-Chief and other affirmative defenses in Bybee Memo.

July 16, 2002: In response to earlier request from Michael Chertoff (perhaps as early as July 13), John Yoo has Jennifer Koester draft, but not send, a letter to CIA refusing a letter of declination of prosecution.

July 17, 2002: George Tenet meets with Condi Rice, who advised CIA could proceed with torture, subject to a determination of legality by OLC.

Of course, two things are going on in the background. First, when Ali Soufan left the black site in May because James Mitchell threatened Abu Zubaydah with mock burial, DOJ got official notice that one of its top terrorism agents believed that the CIA was using torture with Zubaydah. Yet, two months later, the torturers were almost certainly already using the most aggressive torture with Abu Zubaydah.

What seems to have happened is the following. Yoo and Koester were all set for an NSC meeting on July 12, perhaps until they had a July 11 briefing with Chertoff. In any case, something made them reschedule that NSC meeting to arrange an Alberto Gonzales (and presumably, Addington) meeting first. After which they appear to have had an incredibly contentious meeting with Bellinger, Chertoff, Levin and others. Perhaps the fact that John Rizzo presented the latest interrogation plan (which, we suspect, was already in process anyway) made things worse. We do know, for example, that mock burial remained in the plan, even after Soufan had balked when Mitchell tried to use it two months earlier. Whether because of Rizzo’s presentation or Yoo’s draft memo, at the meeting Chertoff definitively refused an advance declination and Levin announced that FBI would have nothing more to do with CIA’s torture program.

And so Rizzo, perhaps noting that the head of DOJ’s Criminal Division and the FBI Chief of Staff were reacting rather unfavorably to CIA’s torture plan, asked Yoo for some kind of cover. In response, Yoo wrote a memo raising the bar for prosecution of inflicting severe mental suffering incredibly high.

What I find particularly interesting is the 2-day delay before Yoo sent the fax, dated July 13, to Rizzo on July 15. That likely coincided with another delay; we know Chertoff asked Yoo to send Rizzo a letter refusing advance declination sometime between July 13 and July 16, but Yoo didn’t act on that request until he had sent Rizzo his July 13 fax already.

Did Yoo get both the request for the letter refusing advance declination and the request for the letter laying out the torture statute at the same contentious meeting?

And then there’s one more unexplainable coincidence. On the same day Yoo sent the July 13 memo (on July 15), Yoo instructed Koester they not only wouldn’t include any affirmative defenses in the memo, but they would claim they weren’t asked for such things. Yet that happened just a day before heading into a meeting with Gonzales and (almost certainly) Addington, at which they did decide to include such things. And incidentally–a fact I hadn’t noted before–Yoo gave Gonzales and (almost certainly) Addington a copy of his July 13 fax at the same meeting where it was decided to add affirmative defenses to the Bybee Memo.

I can’t prove it. But it appears that Yoo wrote the July 13 fax in response to serious reservations from Chertoff and Levin. And in response to that, Addington directed him to add a bunch more defenses (literal and figurative) into the Bybee Memo.

One last point. As I said, one key difference between the July 13 fax and the Bybee Memo is that Yoo rebutted an obvious objection to his reading of how the Torture Statute treated intent with severe mental suffering.

It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute.

Any bets on whether Chertoff and/or Levin made precisely this argument at that July 13 meeting?

The Request for Reaffirmation of Torture

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This is going to be another weedy post…

I wanted to put two totally bureaucratic pages (PDF 23-24) from the recent FOIA dump into the context of the other known documents in the chronology. The first page is an “Executive Correspondence Routing Sheet,” sent from CIA General Counsel Scott Muller around top CIA management for approval. It reads:

This memo follows General Counsel discussion with the DCI and agreement on the need to seek reaffirmation from the NSC.

And the memo in question (the following page) appears to be a very short memo with the subject, “Review of CIA Interrogation Program,” from John Rizzo circulated to the lawyers involved with the torture program and the top CIA executives on the Executive Correspondence Routing Sheet. The Rizzo memo is dated May 24, 2004; the last signature–that of George Tenet–is dated June 4, 2004.

The routing sheet is interesting not just because Tenet signed it the day after he resigned.

It also shows a glimpse of the bridge by which CIA responded to the CIA IG Report but also (probably) Jack Goldsmith’s unwillingness to reaffirm opinions that OLC had never made by asking the White House for some kind of written re-endorsement of the torture program.

As I’ve shown here and here, when the CIA Inspector General began its review of the torture program in response to the Salt Pit death and abuses of al-Nashiri, CIA and Jennifer Koester and John Yoo (though he denies involvement) worked back channel to develop a set of “Legal Principles” (elsewhere called “Bullet Points”) that would expand the legal authorization DOJ had given CIA’s torture program in such a way as to legally excuse the crimes the IG was inspecting. Significantly, the Legal Principles document expanded the already farcical analysis of Article 16 of the Convention Against Torture that Yoo had done in the Bybee One memo.

CIA twice tried to present these Legal Principles to OLC as a fait accompli, first in June 2003, when Patrick Philbin took over many of John Yoo’s duties, and then again in March 2004, in conjunction with the finalization of the IG Report and at a time when Goldsmith headed the OLC. Both Philbin and Goldsmith refused to accept the Legal Principles as OLC sanctioned documents.

Now, significantly, the March 2, 2004 set of Legal Principles was itself a request for “reaffirmation” of the torture program’s legality. Scott Muller emphasized CIA needed that reauthorization, among other reasons, because they had incorporated new torture techniques based on the OLC “guidance.”

For example, using the applicable law and relying on OLC’s guidance, we concluded that the abdominal slap previously discussed with OLC (and mentioned in the June 2003 summary points) is a permissible interrogation technique.

Of note, Goldsmith appears to have taken special note of the description of water PFT, which (Muller’s note said explicitly) was “intended to … humiliate” detainees. Given that the IG Report concluded that the torture program probably violated Article 16, this language seemed to flout the prohibitions against cruel, inhuman, and degrading treatment.

Between March 2 and May 24 (when Rizzo wrote his memo), Goldsmith did not reauthorize the Legal Principles. Nevertheless, CIA incorporated the Legal Principles into the final draft of the IG Report. Goldsmith got a copy of that document some time before May 25 and presumably spoke to Muller about the inclusion of the Legal Principles in it, because on that day, he wrote CIA’s IG noting that he had received it and asking for time to review the depiction of OLC’s legal advice in the IG Report before it got sent to Congress.

In other words, Goldsmith’s continued objection to the inclusion of the Legal Principles in the IG Report is probably what prompted John Rizzo to send out a memo referencing the IG Report (which the CIA called the “Review of the CIA Interrogation Program,” the subject of his memo) that appears to have recommended asking NSC for reaffirmation of the torture program.

So faced with Goldsmith’s refusal to reaffirm something OLC had never affirmed in the first place, CIA decided to go to the White House and get them to approve of the program in writing. Read more →

Did Addington Oppose 9/11 Commission Questions to Avoid Independent Evaluation of Torture Program?

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Shortly after news broke that CIA destroyed the torture tapes, the 9/11 Commission issued a letter complaining that they had not been told of–much less been allowed to review–the torture tapes.

The commission’s mandate was sweeping and it explicitly included the intelligence agencies. But the recent revelations that the C.I.A. destroyed videotaped interrogations of Qaeda operatives leads us to conclude that the agency failed to respond to our lawful requests for information about the 9/11 plot. Those who knew about those videotapes — and did not tell us about them — obstructed our investigation.

They released a memo from Philip Zelikow describing how the Administration refused to allow the 9/11 Commission direct access to detainees in early 2004.

The full Commission considered this issue in a meeting on January 5, 2004 and decided the CIA responses were insufficient. It directed the staff to prepare a letter to administration officials that would make the dispute public. There were then discussions between Hamilton and White House counsel Alberto Gonzales and several meetings of CIA lawyers with Commission staff. The Commission offered various compromises to avoid disrupting the interrogation process, including direction or observation of questioning in real-time using one-way glass, adjoining rooms, or similar techniques. In a January 15, 2004 memo to Gonzales, Muller, and Undersecretary of Defense Steve Cambone, Zelikow wrote, “We remain ready to work creatively with you on any option that can allow us to aid the intelligence community in cross-examining the conspriators on many critical details, clarify for us what the conspirators are actually saying, and allow us to evaluate the credibility of these replies.”

But these negotiations made little progress. Hamilton and commissioner Fred Fielding then met with Gonzales, Tenet, Secretary of Defense Rumsfeld, and Chris Wray from the Department of Justice. The administration offered to take sets of written followup questions, pose them to detainees, relay answers back to the Commission, and take further questions. In a January 26, 2004 meeting the Commission accepted this proposal as the best information it could obtain to address its longstanding questions.

Today’s document dump includes an interesting snapshot of the Administration response to the Commission request. (PDF 25-30)

It appears that David Addington took the lead on refusing the 9/11 Commission’s request. It appears Addington got the draft of the letter from 9/11 Commission–which was addressed to Rummy and George Tenet. Tenet and Addington clearly had a conversation about how to respond. But it seems that Addington drafted the response, got Condi, Andy Card, and Alberto Gonzales to review it, and then sent it to Tenet (and, presumably, Rummy) to okay and sign the letter.

In other words, OVP had the lead in refusing the 9/11 Commission’s request for more information from the detainees.

The document is also interesting for the underlining on the letter from the Commission. While it’s not clear who made the markings (though it seems likely to be Addington since that version of the letter clearly came from him), whoever made them appears to have reacted strongly against the Commission’s intention to independently evaluate the detainees and their interrogations. Read more →

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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Were the Torturers Bypassing OLC in July 2004?

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Update, March 13, 2015: The Torture Report clarify this. First, CIA had not yet rendered the detainee, who was indeed Janat Gul. At the meeting, CIA did ask for a memo, as well as permission to torture Gul because (we now know) a fabricator had claimed he was involved in an election season plot. We’ve also learned that regardless of what Comey and Goldsmith approved, the CIA used its torture of Gul, after Goldsmith left, to expand the prior authorizations CIA had obtained to incorporate what they had actually used.
Jay Bybee thinks it’s really damning that Jim Comey attended a July 2, 2004 Principals meeting at which the torture of one particular detainee (he says it was Janat Gul, though there are reasons to doubt it) was discussed.

Comey joined Ashcroft at a NSC Principals Meeting on July 2, 2004 to discuss the possible interrogation of CIA detainee Janat Gul. Report at 123. Ashcroft and Comey conferred with Goldsmith after the meeting, leading to Goldsmith’s letter to Muller approving all of the techniques described in the Classified Bybee Memo except for the waterboard. Id (PDF 26-27)

I’m not so sure. In fact, it appears that the key approvals happened after Comey had left that meeting–and Goldsmith’s “approval” appears to have been an attempt to put some limits on the CIA after the White House had approved the techniques.

Let’s review everything that led up to that meeting.

In April, per the OPR Report, Jack Goldsmith and Steven Bradbury began work on a memo to replace the March 2003 Yoo memo. Meanwhile, in response to the CIA Inspector General Report’s description of torture as it was being administered, Goldsmith advised CIA General Counsel Scott Muller on May 27 not to use waterboarding (and to strictly follow the descriptions of the other nine authorized techniques carefully). On June 7 and 8 news of the torture memos appeared in the WSJ and WaPo. After learning in a phone call with John Yoo about some of the back-channel advice CIA and DOD had gotten, Goldsmith told Muller on June 10 that CIA was going to have to put things in writing if it wanted further OLC opinions on torture (Goldsmith appears to have kept the proof that he faxed it to CIA). On June 16, Goldsmith told Ashcroft he would withdraw the Bybee One memo and then resign. On June 22, in an off the record briefing, Comey, Goldsmith, and Philbin renounced the Bybee One memo. And on June 28, the Supreme Court ruled against the Administration in the Hamdi case.

The entire torture program, the torture architects surely believed, was at risk. In his book, Jack Goldsmith reports that the CIA and White House accused him of “buckl[ing]” in the wake of the Abu Ghraib scandal. And Addington sniped that Goldsmith should give him a list of any OLC opinions Goldsmith still stood by.

In this context on July 2–ten days after Goldsmith publicly withdrew the Bybee One memo and four days after the Hamdi decision–the CIA asked to torture again.

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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.

Conyers Asks for the White House Side of Yoo and Philbin’s Emails

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The letter the National Archives wrote to DOJ last week inquiring about John Yoo’s missing emails focused on DOJ’s violation–as a Federal Agency–of the Federal Records Act.

Now, John Conyers is taking the reverse approach–asking for email exchanges to which the White House was a party–which would be preserved pursuant to the Presidential Records Act.

Any of the missing emails that included White House personnel should have been preserved as Presidential Records and be maintained in your archives. Therefore, I request that you search the relevant records (including both classified and unclassified materials) and provide the Committee with:

  • Any emails including John Yoo sent or received between March 1, 2002, and May 31, 2003.
  • Any emails including Patrick Philbin sent or received between July 1, 2002, and August 5, 2002.

Please make every effort to expedite this request. At a minimum, please provide at [sic] preliminary report on the results of your records search as soon as possibly, and in any event no later than March 15, 2010.

NARA is bound to find one of two things: that the abundant discussions between David Addington and John Yoo in this period (and more limited conversations with John Bellinger) have, like John Yoo’s DOJ emails, simply disappeared. Alternately, maybe they’ll find the White House’s side of emails with John Yoo, about this, and other things (such as the warrantless wiretapping program).

Any bets it’ll be the former?

At the very least, it’ll be a nice test to see how far along NARA’s project of restoring all the destroyed White House emails is coming along.

From the Department of Ironic Reorganization

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It seems Assistant Attorney General Lanny Breuer wants to do a more effective job of hunting down human rights abusers.

Assistant Attorney General Lanny Breuer has proposed combining the Criminal Division’s Domestic Security Section and the Office of Special Investigation. If approved by the Office of Management and Budget, the merger would represent the first major structural change in the division since Breuer took office.

The mandates of the sections have grown closer in recent years. OSI, created in 1979, has reshaped its mission from ferreting out Nazis living on American soil to hunting human rights violators who fled all corners of the world, from Rwanda to the former Yugoslavia.

DSS, established early in the Bush administration, targets human smuggling rings, immigration fraud, certain violent crimes and gun offenses, and international human rights violations. The section also has jurisdiction over crimes committed oversees by “individuals employed by or accompanying” the U.S. military.

The new entity would be called the Human Rights and Special Prosecutions Section. Meshing the resources of DSS and OSI could give the Criminal Division a competitive edge over U.S. Attorneys’ offices and other agencies vying to prosecute major human rights cases.

Rather than rearranging the deck chairs, maybe Breuer should just head to Alexandria and Mclean, VA to pick up Addington and Cheney.