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Bybee’s Lawyer: Bybee Distracted from Torture Memo because Protecting Cheney’s Energy Task Force

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I’ll have more on Maureen Mahoney’s first response on behalf of Jay Bybee to the OPR report later today. But I wanted to draw attention to a footnote she includes to–apparently–explain that Jay Bybee was a very busy man at the time when he was supposed to be overseeing John Yoo’s attempts to legalize torture in the summer of 2002. (This is on PDF page 19)

Judge Bybee’s role in reviewing the memo began in earnest around mid-July, roughly two weeks before he signed them.5

5 During the summer of 2002, in addition to his work on national security issues, Judge Bybee, as head of OLC, was also heavily involved in a number of other difficult and pressing legal matters. Of particular note, Judge Bybee was engaged in the district court litigation in Walker v. Cheney, No. 02-340 (DD.C.). The attorneys in that case were working closely with the Department’s Civil Division and the Solicitor General’s Office. The legal issues involved in the case were peculiarly within Judge Bybee’s expertise because his scholarly research had been cited as authority by both sides. See Jay S. Bybee, Advising the President: Separation a/Powers and the Federal Advisory Committee Act, 104 Yale L.J. 51 (1994).

Walker v. Cheney, of course, is the suit the GAO took against Cheney’s office to try to force it to turn over documents relating to his Energy Task Force. After District Court Judge John Bates ruled against GAO in December 2002, it ended one of the more important efforts to subject Cheney’s office to Congressional oversight. Furthermore, this effort must be regarded as Cheney’s first attempt to assert that his was a Fourth Branch, exempt from oversight but also executive regulation.

How interesting, then, that Mahoney highlighted Bybee’s role in helping Cheney succeed in winning this suit to argue that Jay Bybee was doing what he should have been doing in summer 2002.

OPR Working Thread Two

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Happy Saturday.

OPR Report Second Draft

I will be starting with the Second Draft of the OPR memo. As before I will use the PDF page numbers, not the printed page numbers

PDF 6: OPR interviewed John Bellinger between the first draft (December 2008) and second draft (March 2009).

PDF 7: The first draft claimed that OPR didn’t get the Combined memo until 2007. The second draft says they saw it in 2005, along with the Techniques memo.

PDF8: Bradbury said he didn’t show OPR the CAT memo bc it didn’t replace either of the Bybee memos; he claimed that was the entire scope of the OPR investigation.

PDF 8-9: The Second draft (written after receiving Mukasey’s comments) notes that Mukasey had reviewed the Bradbury memos and found them legal. It is followed by a paragraph noting that Obama issued an order stating no one coudl rely on OLC guidelines from before his term.

PDF 10: Second draft notes that it did not rely on legal commentary or comments from other DOJ employees. Seems like Mukasey beat them up for letting Goldsmith or Comey’s opinions matter.

PDF 11: Second draft withdrew recommendation to review Bradbury memos, saying that the Obama EO withdrawing everything made further review unnecessary.

PDF 12: Second draft makes a point of saying that Bybee didn’t leave dept until March 28, 2003 (the first said he left right away). This may have relevance for the Yoo Memo.

PDF 12: Second draft notes that

PDF 16: Footnote 14 is changed to say that CIA had neither oral or written approval to use torture when it started; draft one had just said this was before the August 1 memo.

PDF 20: There is a longer redaction after the techniqes list in the second draft. Also note the explanation of Bellinger’s discussion with Yoo now has a redacted half-paragraph. This is significant since Bellinger was interviewed between the two drafts. Also note that part of footnote 18 is redacted in the later draft, though from the spacing it appears to be the unredacted passage from the first draft explaining that oo did not know why Bellinger told him to avoid telling State. Presumably in the contect of the other Bellinger discussion, it is now too sensitive?

PDF 21: THere’s a medium sized paragraph in the second draft that doesn’t appear in the first, which seems to come from Bellinger. Bellinger notes that Yoo was under a great deal of pressure on this memo, and also says that over time there was significant pressure to rule that the program was legal and could be continued (this seems to refer to Bradbury’s timing). In any case, it seems to relate to pressure from the WH.

PDF 23: there is a much longer redaction in the description of the meeting talking about starting the opinion. Again, this must come from Bellinger.

PDF 26: Second draft adds a paragraph stating that Yoo said he was not under time pressure, except maybe at the end after they decide to do Bybee Two.

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Bybee: No Written Advice Provided to Any Agency Prior to August 1, 2002

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 When Jay Bybee responded to written questions from Carl Levin about the torture authorizations in October 2008 (at a time when the Office of Professional Responsibility investigation was well-advanced, if not done), he made the following assertion.

While Judge Bybee said that he did not recall "any written advice provided to any governmental agency prior to August 1, 2002, on the meaning of the standards of conduct required for interrogation under the federal anti-torture statute or on specific interrogation methods," the August 1, 2002 memos were not the only occasion on which DOJ provided legal advice on the CIA’s interrogation program.

That’s interesting, because we know that on July 13, 2002, John Yoo wrote John Rizzo a letter in which he mapped out how to avoid prosecution for torture. He wrote:

This letter is in response to your inquiry at our meeting today [not attended by Bybee] about what is necessary to establish the crime of torture, as set forth in 18 USC 2340 et seq. The elements of the crime of torture are: (1) the torture occurred outside the United State; (2) the defendant acted under the color of law; (3) the victim was within the defendant’s custody or physical control; (4) the defendant specifically intended to cause severe mental or physical pain or suffering; and (5) the act inflicted severe mental or physical pain or suffering.

[snip]

Moreover, to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose, [sic] of causing prolonged mental harm in order for the use of any of the predicate acts to constitute torture. Specific intent can be negated by a showing of good faith.

Now, it’s possible that Bybee did not consider this "written advice," but it sure seems to address the topic at hand (and note, Bybee did not say "opinion," but only "written advice"). It’s possible he lied–though I would imagine his answers to Levin very closely matched the answers he gave to OPR to what would presumably be remarkably similar questions.

Just as likely, I think Bybee may not have known about this letter.  On June 22, 2004, the day OLC withdrew the Bybee One memo, John Rizzo faxed the letter (including the fax cover sheet Yoo originally used) back to Daniel Levin. That either suggests Rizzo was trying to remind Levin of the meeting on July 13, 2002 (which Levin had attended as FBI Chief of Staff). Read more →

CIA Now Reviewing OPR Report on Yoo, Bybee, and Bradbury

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Sheldon Whitehouse revealed raised during today’s Department of Justice oversight hearing that the CIA is now reviewing the results of the Office of Professional Responsibility report on John Yoo, Jay Bybee, and Steven Bradbury’s role in authorizing torture.

Whitehouse: CIA was given a opportunity for substantive comment and classification review. Is it now the CIA that is holding up the release of the report?

Eric Holder claimed that the CIA’s review was not holding up the report. But when asked whether or not DOJ was ensuring that those at CIA reviewing the document had clean hands on torture, Holder twice did not answer, and ultimately said he wasn’t worried whether those involved in torture get to make substantive comment on the OPR report.

Whitehouse: Role of CIA in substantive comment and in classification review, interesting conflicts of interest. What assurances from CIA that those who seek to influence OPR report through substantive comment or those who have effect of delaying report are not complicit or involved in underlying conduct. Have you got a clean scrub of those at CIA who are involved in program?

Holder: As complete a report as we can. Declassify as much as we can. Full feeling of what it is that OLC lawyers dealt with. Pushing to declassify as much as we can. 

Whitehouse: Doesnt’ address question of whatever assurances from CIA that in discharge of review role the people involved in that had clean hands WRT this program and are giving untainted advice.

Holder: We haven’t gotten anything yet. This may not be an issue at all.  Will interact with Panetta. Want to have as much declassified as possible.

Whitehouse: And on question of substantive comments? Is it not important that CIA should be doing so in manner that keeps agencies hands clean.

Holder: I’m actually less worried about substantive comments.

Whitehouse: Would they be likely to look at substantive comments differently if CIA had not kept report from people with clean hands.

Holder: Fact-driven. Conclusion that one draws from the facts, Justice Department’s view of facts that we have uncovered.

In other words, no, Holder doesn’t find it problematic that someone like John Rizzo–who remains the Acting General Counsel at CIA and who made apparently false declarations to OLC in 2002 when it first approved torture–gets a chance to review the OPR report.

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Leahy to Bybee: Why Won’t a Federal Judge Testify before Senate Judiciary Committee?

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Keep in mind, as you watch Pat Leahy complain that Jay Bybee declined, through his lawyer, to testify before the Senate Judiciary Committee what Sheldon Whitehouse said about yesterday’s hearing: it was preparation for the release of the Office of Public Responsibility report on Bybee, Yoo, and Bradbury, due out in the next several weeks. 

Since he has declined through his lawyers to testify before the Committee, I assume he has no exonerating information to provide. I wish he would testify before us to help complete the record, and [inaudible] it is appropriate because in this case he has done anything but maintain silence about it. He has made a number of statements that sort of give his side, I’d like to hear it all. He’s talked to friends and employees, he’s communicated to the press, he’s communicated through his lawyers to the Justice Department regarding the Office of Professional Responsibility’s review of his actions, while as a government employee in the Office of Legal Counsel. Apparently the only people he has not explained his actions to are the people who granted him a lifetime appointment to the Federal Bench, and the American people through their elected representatives in the Senate.  

Whitehouse and Leahy have both promised follow-up hearings after the report comes out; it’s likely that Bybee will get himself another invitation after the report–one with some legal force behind it.

But, as Scott Horton suggests, Leahy’s invitation and Bybee’s refusal to show establishes–even before the OPR report comes out–that Bybee doesn’t have anything to say for himself, that a sitting Judge and federal employee won’t explain his role in authorizing torture to the Committee that oversees the Judiciary (and approved his nomination). 

This invite, too, was about laying a foundation for what comes next. 

Whitehouse: Laying the Groundwork for the Torture Case

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KeithO had Sheldon Whitehouse on this evening to set up his torture hearing tomorrow (10 AM, and yes, I’m liveblogging it). Here’s what Whitehouse said he hopes to accomplish tomorrow.

I hope what America will learn is that the facts that were alleged in the torture memos are very likely not true, the legal theories were contested even by Bush Administration lawyers who weren’t in on the fix, and a little bit about what the consequences are for lawyers who commit professional malfeasance.

I explained how Ali Soufan has (and will) shown that "the facts that were alleged in the torture memos" are not true here:

Ali Soufan, the FBI interrogator described in the DOJ IG report on interrogation as the interrogator (whom they call "Thomas") who called CIA’s tactics on AZ, "borderline torture," has an important op-ed in the NYT. He writes,

One of the most striking parts of the memos is the false premises on which they are based. 

I pointed this out myself, in a post on why the debate over whether these techniques were necessary and effective is so heated.

Check out what the second paragraph of the Bybee Memo says:

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United Stares or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an "increased pressure phase." [my emphasis]

Here’s what Ali Soufan says:

It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Read more →

Judge Bybee, Can You Say Panic?

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If I had a case before Judge Bybee, I’d ask him to recuse if only because his office appears to be running around like a chicken with its head cut off, worrying about how to respond to Pat Leahy’s invite to come chat. (h/t fatster)

On Thursday, law clerks for the judge said variously that Bybee would respond to an appeal by Chairman Patrick J. Leahy (D-Vt.) to appear before the Senate Judiciary Committee; that he would explain his reasoning in a statement to the San Francisco-based appeals court; and that he would have nothing more to say to anyone on the subject.

"My impression is that there won’t be any further statements," law clerk Keith Woffinden said, apologizing for the contradictory messages being sent by staffers.

Maureen Mahoney? Your client is losing it.

And I like this quote, too, which almost seems like it could be coming from someone who was a source for the WaPo story reporting that Bybee regretted the torture memos–only this time doing so on the record.

"It surprises, concerns, sickens and depresses me," Christopher Blakesley, a law professor at the University of Nevada, Las Vegas, said of Bybee’s defense of the August 2002 memos. "I am surprised that he talked at all at this point."

Blakesley said he was also "saddened because I truly believed from what I know of him over the years that he would have repudiated the memos along with all that surrounded and came from this sordid situation. Perhaps one day he will."

It’s not going to get any better, either, as we draw closer to the release of that OPR report. 

Leahy to Bybee: Here’s Your Chance to Chat

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Well, I guess if Leahy can’t have his truth commission he can invite Jay Bybee to perjure himself before the Senate Judiciary Committee. (h/t TP)

I write to invite you to testify before the Senate Judiciary Committee.

I enclose a recent article from The Washington Post. It suggests that you have expressed regret at the content of the Office of Legal Counsel (OLC) memoranda issued while you headed that office and that you feel that they were misused. The article reports that you were concerned about the exercise of the policies that the opinions authorized, that you were "disappointed by what was done to prisoners," and that you felt that "the spirit of liberty has left the republic." The article notes that your associates claim you do not feel ownership of these memos but, instead, describe your involvement this way: "He was head of the OLC, and it was written, and he was not pleased with it." By coming forward and testifying before the Committee, you will have the opportunity to amplify or correct these accounts, and explain your role and your views.

The Post article concludes that you have allegedly found it "frustrating" not to be able to explain your position with regard to these memos. By coming forward to testify, you will be able to explain your position with regard to these matters, including your involvement and your knowledge regarding how these memos were written and approved, what considerations went into that process, who was consulted in that process and the roles of various individuals.

According to the press account, you became the Assistant Attorney General in charge of the Office of Legal Counsel after interviewing with White House Counsel Alberto Gonzales because you were interested in being nominated to a judgeship on the Ninth Circuit Court of Appeals. Apparently he asked if you would be willing to head OLC first. I am sure you would like an opportunity to come forward and set the record straight with respect to whether and, if so, how your judicial ambitions related to your participation at OLC.

You were nominated by President George W. Bush to serve as head ofOLC on September 4, 2001. You were confirmed on October 23,2001. Read more →

Jay Bybee Speaks Quavers

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NYT has what might be billed as a blockbuster article: JAY BYBEE REVEALS ALL!!!

Except that the article appears to be nothing more than a legalistic CYA statement which I’m sure his hotshot lawyer Maureen Mahoney had a hand in:

Judge Bybee, who issued the memorandums as the head of the Office of Legal Counsel and was later nominated to the federal appeals court by President George W. Bush, said in a statement in response to questions from The New York Times that he continued to believe that the memorandums represented “a good-faith analysis of the law” that properly defined the thin line between harsh treatment and torture. 

[snip]

“The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

Other administration lawyers agreed with those conclusions, Judge Bybee said.

“The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”

The article even reveals why Maureen Mahoney might have encouraged Judge Bybee to issue a statement–to retract comments made by his friends that he regretted the memos.

Judge Bybee said he was issuing a statement following reports that he had regrets over his role in the memorandums, including an article in The Washington Post on Saturday to that effect.

Of course, Bybee has to claim a "good faith analysis of the law"–that’s his only defense.

But if he’s invoking the other lawyers in the Administration who agreed with the memo–undoubtedly including David Addington, John Yoo, Alberto Gonzales, Jim Haynes, and John Rizzo–that’s not much of a defense. He’s arguing, basically, that a set of lawyers called the "War Council" for the way they collaborated in private on institutionalizing torture, believe his (Yoo’s) memos authorizing torture in spite of the the law and the bogus facts used in the memo was "legally correct." Most children, if you ask them if they like candy, will enthusiastically say they do, too.

And to suggest the stakes of this are important "no matter our opinion" is pretty disgusting, since it suggests Bybee still believes that issuing an opinion that forced the Read more →

Jim Haynes’ Request: A[nother] List of Techniques–Including Waterboarding

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There’s an interesting footnote in the Senate Report on Torture that suggests Jim Haynes personally went fishing for a description of waterboarding so it could be added to techniques approved by OLC.

Footnote 179–describing JPRA (the SERE people) receiving a request for descriptions of SERE techniques from DOD’s Office of General Counsel reads,

Committee staff interview of Lt Col Daniel Baumgertner (August 8, 2007); see also email from Col Moulton to [redacted] (June 30, 2006) ("We [JPRA] initially received a call from OSD General Counscil (sic) requesting information about resistance techniques used against U.S. POWs. I believe this was early in Operation Enduring Freedom. We were requested to provide that information within hours and were authorized by JFCOM to forward it to OSD. … Once we understood what OSD/GC was looking for, we provided a[] list of techniques.")

There are several things about this note. Colonel Randy Moulton, the head of JPRA, presumably in response to a DOD IG request, seems to refer to the December 2001 request from DOD’s General Counsel (since that would have been "early in Operation Eduring Freedom"). He goes on to describe the process by which Jim Haynes’ office asked for a list of techniques, suggesting that JPRA at first didn’t understand what Haynes’ office was looking for. And note the bracket: "a[] list of techniques." That suggests a word beginning with "a" was shortened–the most likely possibility being "another." That suggests that JPRA may have submitted a list of techniques, subsequently learned that Haynes’ office was looking for something else, and then submitted a second set of techniques. 

That’s interesting because there’s a difference of recollection between Richard Shiffrin, then DOD Deputy General Counsel in charge of Intelligence, and Daniel Baumgartner, Chief of Staff for JPRA, that pertains to these requests.

First, the timeline the SASC Report describes surrounding the list of techniques is:

July 25, 2002: Shiffrin requests information  for a "list of exploitation and interrogation techniques" from Baumgartner.

July 25, 2002: Baumgartner writes a memo in response to Shiffrin including lesson plans and describing JPRA’s expertise on exploitation.

July 25, 2002: "Prior to the memo being delivered" to the General Counsel’s office, Shiffrin calls Baumgartner again to ask for additional information, including a list of techniques used by JPRA at SERE school.

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