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The Legal Principles Document and OLC’s Leaky SCIF

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Sorry to get so deep in the weeds on the missing OLC documents, but I wanted to show why this matters, using the example of the Legal Principles (AKA the Bullet Points) documents. As I’ll show below, one of the most sensitive documents involved in the controversy between CIA and OLC on the Legal Principles is one of the documents over which there are discrepancies between the  Vaughn Indices and the actual document.

I explained the Legal Principles document in detail in this post, but here’s the short version. When CIA started the Inspector General investigation, it had a meeting with DOJ people including Michael Chertoff and then a phone conversation with John Yoo. Both times, DOJ told CIA that it (DOJ) would hold off on any criminal investigations or prosecutions until CIA’s IG first collected information and then presented that along with the legal guidelines CIA had been working under. DOJ basically told CIA, “You tell us if you broke the law.” So CIA got together with John Yoo (though he denies being involved) and Jennifer Koester, who were both apparently free-lancing with no official OLC involvement, and developed a document–alternately called the Legal Principles or the Bullet Points document. The document interpreted the law and previously OLC opinions as the CIA would like them to be to make sure as much of the torture as possible was “legal.”

When Koester and Yoo moved on in May 2003, CIA tried to dump the document as a finished fait accompli back onto OLC. Even though Patrick Philbin, picking up Yoo’s duties, immediately refused to recognize the document as OLC work product, CIA kept insisting it counted as an OLC document. They did so in a high level meeting at the White House in June and then ultimately made it into a slide for a meeting with the NSC Principals on July 29, 2003, at which the Principals bought off on the torture as it had been applied. Then, CIA submitted the document with a late draft of the IG Report in March 2004, which (Jack Goldsmith claims, though the CIA claims differently) was the first time Goldsmith saw the Legal Principles. A bit of a spat broke out which not only prevented CIA and OLC from submitting joint comments on the IG Report (and, presumably, the legality of the acts described therein) as they had intended to do, but also in Goldsmith writing grumpy follow-up letters to CIA on it. And all of this was right before Goldsmith withdrew the Bybee One memo.

As you can see, the Legal Principles document were not only a source of tension between CIA and OLC. But its lies at the core of interpretations of just how illegal the CIA program was.

Which is why I find it relevant that the various iterations of the Legal Principles document are some of the documents that seem to have been affected by OLC’s leaky SCIF.

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Boxes and Burials in the CIA’s Torture Plans

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In this post, I’m going to test a hypothesis that OLC may not have included “cramped confinement” in its torture plans until it removed “mock burial.” If I’m right, it means after having been told OLC would not approve mock burial, OLC and CIA instead just renamed what they were doing as “cramped confinement” so as to get it past those in DOJ who were opposed to allowing the US to use mock burial in its torture program.

This is a weedy post even by my standards. But the key points are:

  • Many of the discussions about which techniques OLC was approving appear to have taken place orally, not in written form
  • The one written document we know exists–a JPRA Physical Pressures document–was an attempt made during the key three days of the Bybee Memo process to pretend that JPRA sanctioned waterboarding (at least) as it either already had been used or would be used on Abu Zubaydah, rather than as the Navy used it in training
  • The section on small box confinement also seems to have been created in response to this process, meaning it is possible that JPRA adjusted both the name and the description of the technique to provide JPRA sanction for mock burial as it had been done on AZ

The OPR Report’s list of torture techniques is neither the original nor the final list of planned torture techniques

The OPR Report includes a list of torture techniques Mitchell and Jessen proposed to use with Abu Zubaydah that includes both cramped confinement and mock burial, which seems to suggest that the CIA tried to get both approved at once. But the OPR Report provides absolutely no explanation for the source or the date of its list (on PDF 41) of the torture techniques. It says simply:

The CIA psychologists eventually proposed the following twelve EITs to be used in the interrogation of Abu Zubaydah:

In addition to the use of the word “eventually” in this description, there’s further evidence this list is not the first incarnation of the torture techniques requested. That’s because this description of sleep deprivation…

Sleep deprivation: The subject is prevented from sleeping, not to exceed 11 days at a time;

Includes this footnote:

As initially proposed, sleep deprivation was to be induced by shackling the subject in a standing position, with his feet chained to a ring in the floor and his arms attached to a bar at head level, with very little room for movement.

Compare that with the description of sleep deprivation as it appears in the Bybee Two memo.

Sleep deprivation may be used. You have indicated that your purpose in using this technique is to reduce the individual’s ability to think on his feet and, through the discomfort associated with lack of sleep, to motivate him to cooperate. The effect of sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that, in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation. Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction. You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted. [my emphasis]

The description in the OPR Report for this torture technique, at least, matches what appears in the Bybee Two memo.

Also note the admission (which I had never noticed before) that CIA had already subjected AZ to sleep deprivation but don’t worry, AZ was A-Okay as a result.

you have previously kept him awake for 72 hours

Though their admission to 72 hour sessions of sleep deprivation doesn’t accord with AZ’s memory of his first several weeks in the black site, which describe being kept awake for weeks at a time (perhaps 11 days?), using the shackling technique that OLC would go on to eliminate from their description of sleep deprivation:

I was transferred to a chair where I was kept, shackled by hands and feet for what I think was the next 2 to 3 weeks.

[snip]

I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water on my face.

From all this we can make several educated assumptions about the list included in the OPR Report. First, it includes the torture techniques as ultimately incorporated in the torture memos; this is not the list that CIA first brought to OLC. Moreover, we know that the description of sleep deprivation, at least, was watered down to hide the most appalling aspects of the technique that, even though they weren’t described, had already taken place.

Oh, and they were probably lying about the one detail they admitted to, how long they had subjected AZ to sleep deprivation.

But we already knew that.

That said, we know the OPR Report’s list isn’t the final list, either. The OPR Report list still shows, in unredacted form, diapering as a technique. We have no idea when or why that we eliminated from the list. And we know the redacted 12th technique is mock burial, which was eliminated some time after July 24, 2002, though we don’t know when, specifically, that happened. Note that the description of that 12th technique–mock burial–continues onto PDF page 43, so the description of it may include more detail on how it was eliminated from the list.

In other words, at best, this is an interim list. The list may simply reflect the final form that each torture technique request had before it was either incorporated into the Bybee Two memo or eliminated from the list.

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Ibn Sheikh al-Libi’s and Abu Zubaydah’s Coffins

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At Mary’s instigation, I went back to look at Ibn Sheikh al-Libi’s description of how he was shoved into a coffin-like box in Egypt. (Thanks to burnt for the searchable copy.)

According to al-Libi, the foreign government service [redacted] “stated that the next topic was al-Qa’ida’s connections with Iraq. … This was a subject about which he said he knew nothing and had difficulty even coming up with a story.” Al-Libi indicated that his interrogators did not like his responses and then “placed him in a small box approximately 50cm x 50cm.” He claimed he was held in the box for approximately 17 hours. When he was let out of the box, alLibi claims that he was given a last opportunity to “tell the truth.” When al-Libi did not satisfy the interrogator, al-Libi claimed that “he was knocked over with an arm thrust across his chest and he fell on his back.” Al-Libi told CIA debriefers that he then “was punched for 15 minutes.”216

(U) Al-Libi told debriefers that “after the beating,” he was again asked about the connection with Iraq and this time he came up with a story that three al-Qa’ida members went to Iraq to learn about nuclear weapons. Al-Libi said that he used the names of real individuals associated with al-Qa’ida so that he could remember the details of his fabricated story and make it more believable to the foreign intelligence service. Al-Libi noted that “this pleased his [foreign] interrogators, who directed that al-Libi be taken back to a big room, vice the 50 square centimeter box and given food.”217

That mock burial–and al-Libi’s subsequent lies about Iraqi ties with al Qaeda–happened sometime before February 22, 2002, when a DIA cable challenged the report.

This is the first report from Ibn al-Shaykh [al-Libi] in which he claims Iraq assisted al-Qa’ida’s CBRN efforts. However, he lacks specific details on the Iraqi’s involvement, the CBRN materials associated with the assistance, and the location where the training occurred. It is possible he does not know any further details; it is more likely this individual is intentionally misleading the debriefers. Ibn al-Shaykh has been undergoing debriefs for several weeks and may be describing scenarios to the debriefers that he knows will retain their interest. Saddam’s regime is intensely secular and is wary of Islamic revolutionary movements. Moreover, Baghdad is unlikely to provide assistance to a group it cannot control

Al-Libi was, you’ll recall, the onsite manager of the Khalden training camp, a camp that trained a range of Muslims, a policy that  put it at odds with Osama bin Laden, who wanted training to be limited to al Qaeda operatives.

Just over a month after al-Libi claimed, having been shoved in a coffin for almost a day, there were ties between al Qaeda and Iraq, the US captured al-Libi’s associate, Abu Zubaydah, who handled logistics for Khalden. Rather than send Abu Zubaydah off to the Egyptians, as the US had done with al-Libi, they instead sent Abu Zubaydah to a CIA run black site in Thailand.

And there, less than three months after the Egyptians shoved Ibn Sheikh al-Libi in a coffin overnight, James Mitchell threatened to do the same with Abu Zubaydah. Ali Soufan objected and told Mitchell doing so was torture. Soufan left the black site and alerted DOJ of what Mitchell had intended to do.

And then, some time later (Abu Zubaydah says it was about 3 months after his surgery, so perhaps mid-July) they did shove Abu Zubaydah in that coffin-like box. Read more →

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.

Did DOJ “Lose” the Smoking Gun Torture Document?

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You know what I find surprisingly absent from the OPR Report?

Any discussion of how–just days after potentially receiving a document making clear that SERE techniques were torture and that torture was not effective–John Yoo still authorized the use of torture in US interrogations.

Here are the last two paragraphs of that document:

(U) Another important aspect of the debate over the use of torture is the consideration of its potential impact on the safety of U.S. personnel captured by current and future adversaries. The unintended consequence of a U.S. policy that provides for the torture of prisoners is that it could be used by our adversaries as justification for the torture of captured U.S. personnel. While this would have little impact on those regimes or organizations that already employ torture as a standard means of operating, it could serve as the critical impetus for those that are currently weighing the potential gains and risks associated with the torture of U.S. persons to accept torture as an acceptable option.

(U) CONCLUSION: The application of extreme physical and/or psychological duress (torture) has some serious operational deficits, most notably, the potential to result in unreliable information. This is not to say that the manipulation of the subject’s environment in an effort to dislocate their expectations and induce emotional responses is not effective. On the contrary, systematic manipulation ofthe subject’s environment is likely to result in a subject that can be exploited for intelligence information and other national strategic concerns. [my emphasis]

This document was written by JPRA–the people that administer the SERE program from which our torture program was purportedly reverse-engineered. It provides clear evidence that, on July 25, 2002, JPRA was aware of an ongoing debate over whether or not to use torture with prisoners in US custody. The document clearly states that torture leads to unreliable information. And the document calls these techniques “torture.”

You’d think, if there were proof Yoo had read it, that OPR would include some discussion of how JPRA’s expert opinion that this was torture should have affected Yoo’s own definition of torture (heck–JPRA’s language here would be more on point than the “organ failure” language that Yoo and Jennifer Koester used to define torture). You’d think, given the experts’ opinion that torture produced unreliable information, OPR would have challenged Yoo’s acceptance of the CIA’s claims that torture was the only way to get Abu Zubaydah to reveal the intelligence they claimed he had. You’d think OPR would ask Yoo why–given his reliance on the same JPRA experts to claim that waterboarding didn’t cause psychological harm–he chose to ignore this document from JPRA.

This document, in other words, ought to be a cornerstone of OPR’s analysis of Yoo’s failure to provide independent analysis and include all relevant information about what constituted torture. It ought to be used as proof that Yoo knew he was authorizing what the experts deemed to be torture.

If OPR had proof Yoo read this document, it would be the “smoking gun” that when he wrote the torture memo he knew he was deliberately authorizing torture.

But it’s not clear whether Yoo did read it. And it’s not clear that if he did, proof to that fact would still have been in OLC’s collection of torture documents by the time OPR got around to reviewing those documents.

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The Emails the Bush Lawyers Were So Worried About

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As I noted yesterday (though I got the details slightly wrong), the OPR report revealed that a number of John Yoo and Patrick Philbin’s emails had been deleted (and that Goldsmith’s had been deleted but were subsequently recovered).

OLC initially provided us with a relatively small number of emails, files, and draft documents. After it became apparent, during the course of our review, that relevant documents were missing, we requested and were given direct access to the email and computer records of Yoo, Philbin, Bybee, and Goldsmith. However, we were told that most of Yoo’s email records had been deleted and were not recoverable. Philbin’s email records from July 2002 through August 5, 2002 – the time period in which the. Bybee. Memo was completed and the Classified Bybee Memo (discussed below) was created – had also been deleted and were reportedly not recoverable. Although we were initially advised that Goldsmith’s records had been deleted, we were later told that they had been recovered and we were given access to them.

That’s particularly interesting, because several times in the year-long lead up to the release of the report, we’ve seen reports that Bush Administration members were squirmy about the number of emails OPR had gotten. Michael Isikoff first reported concern from Bush lawyers that OPR got emails from the memo contributors last February.

OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.

I wondered whether reappearing emails was of particular concern to those trying to cover up Bush crimes here. Then there was the remarkably bad NYT story from June 6, 2009, that not only revealed the presence of the emails and included the damning Comey ones, but spun them just as Steven Bradbury would have liked them, as an attack on Comey rather than what they were, an indictment of the drafting process.

All of this anxiety about emails could just be an expression of Bradbury’s worries (retrospectively, it looks much more likely than it already did that he was the source of the emails and the spin to the NYT).

If so, though, that’s particularly interesting since we know that OPR originally got a very limited batch of emails from Steven Bradbury (this was in 2004, before he would write his own torture memos).

On August 31,2004, Bradbury gave OPR copies of unclassified documents relating to the Bybee Memo, including email and documents from the computer hard drives and files of the former OLC attorneys who worked on the project.

But reports of the anxiety about emails are all the more interesting given the emails that are included in the report. Perhaps the most damning example is the email in which Yoo refers to Abu Zubaydah as “Boo Boo” (which Spencer reported on Friday):

On July 30,2002, Yoo asked [Koester] by email, “[D]o we know if Boo boo is allergic to certain insects?” [Koester] responded,”No idea, but I’ll check with [redacted].

In addition, email evidence provided the basis for [Special thanks, again, to burnt for making searchable copies of these reports that made compiling this list much easier]:

  • The start date of the Bybee One drafting process, April 11, 2002
  • Timing or summaries of key meetings, including some with Alberto Gonzales
  • Yoo’s comments on drafts sent to Jennifer Koester, his side-kick in the writing process
  • Details of Bybee’s involvement in the drafting process
  • Proof that Yoo didn’t intend to write the Commander-in-Chief or possible defenses before his July 16, 2002 meeting with Gonzales (and probably David Addington and/or Tim Flanigan)
  • Evidence that Yoo consulted with a university law professor on common law defenses (the second draft, but not the first and final, shows that this was a university professor)
  • Indication that Yoo and Koester didn’t start the Bybee Two (Techniques) memo until July 25, 2002 or later
  • Details on the pressure the White House was putting on Yoo to get the memos done
  • Details of who received the opinions including–a fact that Yoo later denied–DOD
  • Complaints Koester received from DOD’s Working Group that the Yoo Memo was too extreme
  • Proof that both Michael Chertoff and John Yoo told CIA’s Inspector General they would wait to investigate alleged crimes until he was done with his investigation
  • Goldsmith’s opinions about the Bybee One Memo, including his judgment that it constituted a “blank check”
  • Comey’s emails documenting his concerns about the May 10, 2005 Combined Memo and his belief that Bradbury was responding to White House pressure because he wanted the AAG position

In other words, the emails provide a key piece of evidence that the White House was responsible for the way in which the Bybee One memo served as a blank check, as well as the pressure the White House put on the lawyers as they were drafting the memos.

The emails put the White House squarely in the drafting process.

But that’s all with most emails from John Yoo and Patrick Philbin still disappeared.

It sort of makes you all the more curious about what was in the Yoo and Philbin emails that got deleted, huh?