Posts

How David Addington Hid the Document Implicating George Bush in Illegal Wiretapping

/24 Comments/in /by

On December 16 and December 20, 2005, respectively — just days after the NYT revealed its existence — EPIC and ACLU FOIAed DOJ for documents relating to George Bush’s (really, Dick Cheney’s) illegal wiretap program (National Security Archive also FOIAed, though more narrowly). Among other documents, they requested, “any presidential order(s) authorizing the NSA to engage in warrantless electronic surveillance.” Yet in spite of the fact that the ACLU was eventually able to get DOJ to cough up some of the OLC memos that provided a legal rationale for the program, no presidential order was ever turned over. I don’t believe (though could be mistaken) it was even disclosed in declarations submitted by Steven Bradbury in the suit.

There’s a very good (and, sadly, legal) reason for that. According to the 2009 NSC draft IG report the Guardian released yesterday, it’s not clear DOJ ever had the Authorization. The White House is exempt from FOIA, and it’s likely that NSA could have withheld the contents of the Director’s safe from any FOIA, which is where the hard copy of the Authorization was kept.

It’s worth looking more closely at how David Addington guarded the Authorization, because it provides a lesson in how a President can evade all accountability for unleashing vast powers against Americans, and how the National Security establishment will willingly participate in such a scheme without ensuring what they’re doing is really legal.

The IG report describes the initial Authorization this way:

On 4 October 2001, President George W. Bush issued a memorandum entitled “AUTHORIZATION FOR SPECIFIED ELECTRONIC ACTIVITIES DURING A LIMITED PERIOD TO DETECT AND PREVENT ACTS OF TERRORISM WITHIN THE UNITED STATES.” The memorandum was based on the President’s determination that after the 11 September 2001 terrorist attacks in the United States, an extraordinary emergency existed for national defense purposes.

[snip]

The authorization specified that the NSA could acquire the content and associated metadata of telephony and Internet communications for which there was probable cause to believe that one of the communicants was in Afghanistan or that one communicant was engaged in or preparing for acts of international terrorism. In addition, NSA was authorized to acquire telephone and Internet metadata for communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States. NSA was allowed to retain, process, analyze and disseminate intelligence from the communications acquired under the authority.

And while the NSA IG report doesn’t say it, the Joint IG Report on the program (into which this NSA report was integrated) reveals these details:

Each of the Presidential Authorizations included a finding to the effect that an extraordinary emergency continued to exist, and that the circumstances “constitute an urgent and compelling governmental interest” justifying the activities being authorized without a court order.

Each Presidential authorization also included a requirement to maintain the secrecy of the activities carried out under the program.

David Addington’s illegal program

While the Joint report obscures all these details, the NSA IG report makes clear that Dick Cheney and David Addington were the braintrust behind the program.

The Counsel to the Vice President used [a description of SIGINT collection gaps provided by Michael Hayden] to draft the Presidential authorization that established the PSP.

Neither President Bush nor White House Counsel Alberto Gonzales wrote this Authorization. David Addington did. Read more →

Blackwater’s Slap on the Wrist for Gun Smuggling and Arms Trafficking

/13 Comments/in , /by

Viewed from one perspective the facts that Blackwater has admitted to amount to running guns–precisely the crime that Fast and Furious attempted to combat. Viewed from another perspective, Blackwater’s actions amount to the same kind of thing Viktor Bout is in prison for: making weapons deals with sanctioned entities.

But Blackwater will suffer no more than a wrist slap for such things: a $7.5 million fine, a third of which can be credited to implementing a compliance system that is substantially already in place, as well as a $42 million Consent Agreement fine it signed two years ago. (It has paid two $6 million installments of the $42 million fine it owes to State Department; even while it continues to get contracts with State)

That doesn’t make the Deferred Prosecution Agreement any less funny.

There are the repeated lists of all the aliases of Blackwater–by my count some 37 companies or subsidiaries. Just in case you needed master list of how many times it has tried to change its identity.

There’s the bragging about Blackwater’s new compliance structure (paid for, presumably, as part of this fine), featuring John Ashcroft (the monitor on one of the most corrupt DPAs ever) and former AIG (AIG?!?!?!) compliance whiz Suzanne Folsom.

There’s the way it says Blackwater can’t charge the government any aspect of its fine (what is left after its credit for compliance infrastructure, that is). Only in DPAs is money not fungible, I guess.

There’s the way they try to guard against Blackwater rebranding again (the DPA is written in the name Academi and invokes Xe) by selling itself to someone else. (There’s apparently an Erik Prince declaration I’m going to have to chase down tomorrow.)

And there’s the way that of those who signed this DPA for Blackwater, only the name of the attorney is included in the text.

Now maybe I shouldn’t be laughing so hard. The DPA implies that the US Attorney in North Carolina’s Eastern District, Thomas Walker, is still investigating. Maybe Erik Prince will go to jail? Ha!

But this DPA is more a case study in the myriad ways corporate entities escape all justice in this day and age than any real accountability for the same kind of actions we impose stiff sentences on others for.

As always, the lesson is if you’re going to commit crimes, do it as a corporation.

Scalia Invents a New Meaning for “Suspicion” while Letting Ashcroft Off the Hook

/in /by

SCOTUS has just ruled unanimously that John Ashcroft can’t be sued by Abdullah al-Kidd for using a material witness warrant to incarcerate him. The 8 justices (Elena Kagan recused herself) all agree there was no law explicitly prohibiting this kind of abuse of material witness warrants, so Ashcroft has immunity from suit.

Where the decision gets interesting is in the justices’ various statements about whether material witness warrants are valid under the Fourth Amendment. The court’s swing justice, Anthony Kennedy, basically invited a constitutional challenge of the material witness warrants themselves.

The scope of the statute’s lawful authorization is uncertain. For example, a law-abiding citizen might observe a crime during the days or weeks before a scheduled flight abroad. It is unclear whether those facts alone might allow police to obtain a material witness warrant on the ground that it “may become impracticable” to secure the person’s presence by subpoena. Ibid. The question becomes more difficult if one further assumes the traveler would be willing to testify if asked; and more difficult still if one supposes that authorities delay obtaining or executing the warrant until the traveler has arrived at the airport. These possibilities resemble the facts in this case. See ante, at 2.

In considering these issues, it is important to bear in mind that the Material Witness Statute might not provide for the issuance of warrants within the meaning of the Fourth Amendment’s Warrant Clause. The typical arrest warrant is based on probable cause that the arrestee has committed a crime; but that is not the standard for the issuance of warrants under the Material Witness Statute. See ante, at 11 (reserving the possibility that probable cause for purposes of the Fourth Amendment’s Warrant Clause means “only probable cause to suspect a violation of law”). If material witness warrants do not qualify as “Warrants” under the Fourth Amendment, then material witness arrests might still be governed by the Fourth Amendment’s separate reasonableness requirement for seizures of the person. See United States v. Watson, 423 U. S. 411 (1976). Given the difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when material witness ar-rests might be consistent with statutory and constitutional requirements.

Mind you, he remains coy about what he thinks about the material witness warrants, as his language makes clear: “uncertain,” “might,” “unclear,” “more difficult,” “more difficult,” “possibilities,” “might not,” “might.”  Of note, though, he neither endorses a rather crazy argument Antonin Scalia makes (joined by the usual suspects)–that witnesses to a crime may now be considered suspects of a sort–nor Ruth Bader Ginsburg’s trashing (joined by Sotomayor and Breyer but not Kennedy) of that claim.

Here’s Scalia’s assertion:

Needless to say, warrantless, “suspicionless intrusions pursuant to a general scheme,” id., at 47, are far removed from the facts of this case. A warrant issued by a neutral Magistrate Judge authorized al-Kidd’s arrest. The affidavit accompanying the warrant application (as al-Kidd concedes) gave individualized reasons to believe that he was a material witness and that he would soon disappear.The existence of a judicial warrant based on individualized suspicion takes this case outside the domain of not only our special-needs and administrative-search cases, but of Edmond as well.

A warrant based on individualized suspicion in fact grants more protection against the malevolent and the incompetent than existed in most of our cases eschewing inquiries into intent.

Here’s Ginsburg’s response:

The Court thrice states that the material witness warrant for al-Kidd’s arrest was “based on individualized suspicion.” Ante, at 6, 8. The word “suspicion,” however, ordinarily indicates that the person suspected has engaged in wrongdoing. See Black’s Law Dictionary 1585 (9th ed. 2009) (defining “reasonable suspicion” to mean “[a] particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity”). Material witness status does not “involv[e] suspicion, or lack of suspicion,” of the individual so identified. See Illinois v. Lidster, 540 U. S. 419, 424–425 (2004).This Court’s decisions, until today, have uniformly used the term “individualized suspicion” to mean “individualized suspicion of wrong-doing.”

[12 cases–many of them the ones used to authorized warrantless wiretaps–cited]

The Court’s suggestion that the term “individualized suspicion” is more commonly associated with “know[ing] something about [a] crime” or “throwing . . . a surprise birthday party” than with criminal suspects, ante, at 6, n. 2 (internal quotation marks omitted), is hardly credible. The import of the term in legal argot is not genuinely debatable. When the evening news reports that a murder “suspect” is on the loose, the viewer is meant to be on the lookout for the perpetrator, not the witness. Ashcroft understood the term as lawyers commonly do: He spoke of detaining material witnesses as a means to “tak[e] suspected terrorists off the street.” App. 41 (internal quotation marks omitted).

And here’s Scalia’s retort to that:

JUSTICE GINSBURG suggests that our use of the word “suspicion” is peculiar because that word “ordinarily” means “that the person suspected has engaged in wrongdoing.” Post, at 3, n. 2 (opinion concurring in judgment). We disagree. No usage of the word is more common and idiomatic than a statement such as “I have a suspicion he knows something about the crime,” or even “I have a suspicion she is throwing me a surprise birthday party.” The many cases cited by JUSTICE GINSBURG, post, at 3, n. 2, which use the neutral word “suspicion” in connection with wrongdoing, prove nothing except that searches and seizures for reasons other than suspected wrongdoing are rare.

In other words, Scalia wants to broaden the Fourth Amendment to sanction searches (and arrests) of people suspected of knowing something or doing something (throwing a birthday party!), rather than just those suspected of doing something illegal.

Not only does Scalia’s novel interpretation of the word “suspicion” pre-empt future challenge to material witness warrants’ constitutionality, but it also lays a novel groundwork for sanctioning all the domestic surveillance the government has been conducting. After all, the government is wiretapping (or tracking the geolocation of) people who may or may not have committed a crime, but are suspected solely of talking to or hanging out in the vicinity of a suspected terrorist.

And because Kennedy didn’t tip his hand in either direction, that’s the kind of interpretation the government will use–no doubt in its secret interpretations of the laws–to claim it can surveill even those of us suspected of no crime.

Because suspicion doesn’t mean what it used to mean.

Beneficiary of Revolving Door Pork to Head Blackwater Ethics Committee

/in /by

As Spencer reports, former Attorney General John Ashcroft just got named the-Company-formerly-known-as-Blackwater’s ethics chief.

The consortium in charge of restructuring the world’s most infamous private security firm just added a new chief in charge of keeping the company on the straight and narrow. Yes, John Ashcroft, the former attorney general, is now an “independent director” of Xe Services, formerly known as Blackwater.

Ashcroft will head Xe’s new “subcommittee on governance,” its backers announced early Wednesday in a statement, an entity designed to “maximize governance, compliance and accountability” and “promote the highest degrees of ethics and professionalism within the private security industry.”

And while Spencer catalogs many of the reasons this is absurd…

To some, Ashcroft will be forever known as the face of Bush-era counterterrorism, the official who vigorously defended the Patriot Act’s sweeping surveillance powers; told civil libertarians that their dissents “only aid terrorists“; and covered up the Spirit of Justice’s boob.

He misses one of Ashcroft’s key ethical highlights: how he benefited from close ties to his former subordinate Chris Christie when he won a tens of million dollar contract to monitor a medical device company after it signed a Deferred Prosecution Agreement with Christie.

Are federal prosecutors using corporate crime prosecutions to reward cronies?

That seems to be the case in New Jersey, where U.S. Attorney Christopher Christie appointed his ex-boss, former Attorney General John Ashcroft, to be the corporate monitor of a company involved in a $311 million deferred prosecution agreement (pdf) with Christie’s office. The company in question, Zimmer Holdings, along with several other medical equipment manufacturers, was accused of paying kickbacks to get doctors to use their artificial hip and knee reconstruction and replacement products.

Ashcroft’s consulting firm, the Ashcroft Group LLC, will earn between $29 million and $52 million (paid by Zimmer Holdings) to serve as a corporate watchdog for 18 months. It will oversee Zimmer Holdings, making sure it does not engage in misconduct and helping it adopt corporate reforms. As head of the Department of Justice, Ashcroft was Christie’s boss from 2002 to 2005. Christie also served on an advisory panel that consulted regularly with the Attorney General.

Effectively, DPAs under Christie were a means of privatizing justice; Christie even justified limiting fines by pointing to the huge contracting fees his former DOJ buddies would get for monitoring the deal.

And so it’s utterly appropriate that Ashcroft would head to the poster child for everything wrong with privatization to make sure it complies with some kind of ethics.

Another Secret OLC Opinion: This One on Information Sharing

/in , , /by

As MadDog and I were discussing on this thread, the May 6, 2004 Jack Goldsmith opinion on the warrantless wiretap program references an OLC opinion that appears not to have been publicly released or, even in the course of FOIA, disclosed.

Thus, this Office will typically construe a general statute, even one that is written in unqualified terms, to be implicitly limited so as not to infringe on the President’s Commander-in-Chief powers. Cf, id. at 464-66 (applying avoidance canon even where statute created no ambiguity on its face). Only if Congress provides a clear indication that it is attempting to regulate the President’s authority as Commander in Chief and in the realm of national security will we construe the statute to apply.19

19. For example, this Office has concluded that, despite statutory restrictions upon the use of Title III wiretap information and restrictions on the use of grand jury information under Federal Rule of Criminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002);

This is probably a memo examining what kind of limits section 203 of the PATRIOT Act impose on Executive Branch officials. That section permits the sharing of Grand Jury and Title III wiretap information with the intelligence community–even information pertaining to US persons. But it requires that, “any Federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information.”

Read more →

The Crooks Trying to Bail-Out Alberto Gonzales

/in , /by

Let me start by stating that the words “legal” and “trust” don’t belong on a letterhead with Alberto Gonzales’ name blazoned at the top.

But that’s not the most interesting part of the letter soliciting donations for a legal defense fund for AGAG (linked by Main Justice). It’s the number of signers who were deeply embroiled in Bush Administration corruption. Starting, appropriately enough, with Bush himself.

President and Mrs. Bush have already made substantial gifts to the Judge’s legal expense fund.

But then there are people like Gale Norton, who resigned just as Gonzales’ DOJ began investigating an oil-trading scandal and who later was investigated for a slimy deal with her future employer, Shell Oil. Or Alphonso Jackson, who was also investigated by DOJ for cronyism in HUD contracts. Or Margaret Spellings, who declined to crack down on the pay-to-play scandal in the student loan business. Or Hank Paulson, who was buddying up to Goldman Sachs even as he was crafting out a bailout for them. I’d raise Condi and Rummy and torture; but then, Gonzales was involved as deeply as they were in torture.

Then again, the number of corrupt people soliciting money to pay off Gonzales’ legal bills may just be a function of the corruption in the Bush Administration. Because almost all of Bush’s cabinet secretaries signed this letter. So much so, that the people who didn’t sign may be more interesting than anything else. There are a number minor players here: former Department of Energy Secretary Sam Bodman, former Department of Education Secretary Rod Paige, former Ag Secretary Ann Veneman.

But there are three notable omissions among the major Secretaries: John Ashcroft, Paul O’Neill, and Colin Powell.

Oh, and one more rather notable Bush Administration guy missing from the list of people trying to help Gonzales out of his legal defense hole–a guy known to be rather fond of legal defense funds, in fact, for the right people: Dick Cheney.

Why doesn’t Dick Cheney want to help Alberto Gonzales pay for protecting the Bush Administration?

Eric Holder’s Defense of Ashcroft to Defend the Material Witness Statute

/in , /by

The NYT has a worthwhile editorial lambasting the Obama DOJ’s pursuit of SCOTUS review in Ashcroft v. al-Kidd, which will probably result in expanded immunity for government officials that abuse the law so as to abuse the rights of Americans. The editorial focuses closely on the way in which DOJ’s defense of absolute immunity amounts to a defense of using the material witness law as an improper basis for detention.

Prosecutorial immunity is intended to let prosecutors enforce the law without fear of being held personally liable. Protecting that legitimate aim did not require the administration to defend the indefensible. In forcefully defending the material witness statute on grounds that curtailing it would severely limit its usefulness, it is defending the law as a basis for detention. That leaves the disturbing impression that the administration is trying to preserve the option of abusing the statute again.

In other words, NYT argues that DOJ’s SCOTUS appeal in this case is as much about preserving the improper use of the material witness statute–to hold a person under the material witness statute so you can conduct an investigation into him–as it is about the immunity per se.

Of course it is.

After all, this is what Eric Holder (along with Janet Reno and two others) had to say about the material witness statute in 2004.

Even when there is insufficient evidence to charge a citizen with a crime, the material witness statute, 18 U.S.C. § 3144, permits the detention of a person whose testimony is “material in a criminal proceeding” if “it may become impracticable to secure the presence of the person by subpoena.” This statute is an effective counter-terrorism tool for several reasons. Because a grand jury investigation is a “criminal proceeding” for purposes of this statute, see United States v. Awadallah, 349 F.3d 42, 49-64 (2d Cir. 2003); Bacon v. United States, 449 F.2d 933, 939-41 (9th Cir. 1971), and because of the broad scope of grand jury investigations, see supra p. 11, the government can detain a suspected terrorist as a material witness before it has evidence sufficient to support a criminal arrest or indictment.

The government can obtain a material witness warrant with relative ease. For a grand jury witness, the required showing can be made by a good faith statement by a prosecutor or investigating agent that the witness has information material to the grand jury. Bacon, 449 F.2d at 943; Awadallah, 349 F.3d at 65-66. Nor would establishing that a suspected terrorist poses a flight risk be an onerous task. See 349 F.3d at 69 (bail denied in part because witness failed to come forward with material testimony concerning terrorist attack). [my emphasis]

Mind you, in its Cert Petition, the government doesn’t admit that the material statute really was used in al-Kidd’s case to hold him even though the government had insufficient evidence to do so.

First, respondent claimed that, in response to the September 11, 2001, terrorist attacks, petitioner implemented a policy of using the material witness statute as a pretextual tool to investigate and detain terrorism suspects whom the government lacked probable cause to charge criminally. Respondent alleged that he was arrested as a result of this alleged policy, which he contended violated the Fourth Amendment. [my emphasis]

So even though a document–signed by the current Attorney General at a time when al-Kidd was still subject to restricted movement–boasts about how easy it is to use of the material witness statute to hold people without sufficient evidence to do so, DOJ calls this use of the material witness statute “alleged.”

I guess if they admitted this was an intentional policy, it’d be harder to get SCOTUS to wink at its use going forward.

Update: harpie’s right. This is an editorial, not an op-ed.

Will SCOTUS Give Ashcroft Immunity in Ashcroft v. al-Kidd?

/in /by

SCOTUS decided today to take John Ashcroft’s appeal of a 9th Circuit decision finding that he did not have immunity from suit in using the material witness statute to illegally hold someone without probable cause.

The Supreme Court, finishing its first sitting of the new Term, agreed on Monday to hear a single new case, a plea by former U.S. Attorney General John Ashcroft for immunity to a lawsuit claiming he misused a federal anti-terrorism law.   The Court, among denied cases, refused to hear a new challenge to the denial of voting rights to individuals when they are serving time in prison.

The Court limited its review of the new terrorism case (Ashcroft v. Al-Kidd, 10-98) to two issues: whether Ashcroft is entitled to absolute immunity in a case involving a detention under the federal “material witness” law, and whether he is entitled at least to qualified immunity to a Fourth Amendment claim.  The Court did not grant review of a third issue, involving the former Justice Department chief’s liability for false statements by a federal agent — apparently because the challenger has dropped that claim.  Justice Elena Kagan did not take part in the Court’s action, presumably because she had some prior role in the case as U.S. Solicitor General.

This is worrisome, not just because it’s another example of how Elena Kagan’s recusal on all these cases give the court an inherent conservative bias (even assuming Kagan will be better on executive power issues than I think she will be), but because by taking the case SCOTUS seems to suggest the 9th Circuit decision deserves more scrutiny.

The case concerns the arrest and detention for 16 days of Abdullah al-Kidd. After he was released, he was held on what amounts to probation for over a year, though he never did testify.

ACLU’s lead attorney on the case, Lee Gelernt, seems to have the same worry: Gelernt is pushing to have the 9th Circuit decision upheld.

Arresting and detaining someone for an extended period without probable cause to believe he violated the law goes against the most basic principles on which our country is founded. The appeals court made it very clear that former Attorney General Ashcroft could be held personally responsible if he used the material witness law to circumvent the Constitution’s longstanding rule that a suspect may not be arrested without probable cause of wrongdoing. The appeals court opinion was the right one, and the Supreme Court should uphold that decision. Government architects of policies that so clearly defy the Constitution must be held accountable to the law.

Presumably, immunity for Ashcroft here will extend to other Administration officials who trample rights in the guise of fighting terrorism.

How CIA Avoided Negligent Homicide Charges in the Salt Pit Killing

/95 Comments/in /by

Since the AP story on the Salt Pit death, reporters have focused a lot of attention to a particular footnote in Jay Bybee’s second response to the OPR Report and what it claims about intent (and, to a lesser degree, what it says about Jay Bybee’s fitness to remain on the 9th Circuit). In it, Jay Bybee references a memo CIA’s Counterterrorism Center wrote in response to Gul Rahman’s death at the Salt Pit; the memo argued that the CIA officer in charge should not be prosecuted under the torture statute because he did not have the specific intent to make Rahman suffer severe pain when he doused him with water and left him exposed in freezing temperatures.

Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.

As Scott Horton noted the other day, analysis of the torture statute should not have been the only thing in the declination memo. Prosecutors should have analyzed whether or not Rahman’s killing constituted negligent homicide, among other things.

Note that the declination, issued by politically loyal U.S. attorneys who were subsequently rewarded with high postings at Main Justice, carefully follows the rationalizations that Yoo and Bybee advanced for not prosecuting deaths or serious physical harm resulting from state-sanctioned torture. But the obvious problem, as John Sifton notes at Slate, is that torture and homicide are hardly the only charges that could be brought in such a circumstance. Negligent homicide or milder abuse charges would have obviously been available, and a survey of comparable cases in the setting of state and local prisoners suggests that they are far more common. By looking only at homicide and torture, the prosecutors were paving the way for a decision not to charge.

But the OPR Report and the Legal Principles/Bullet Points documents it describes may explain why this didn’t happen. The Legal Principles/Bullet Points document shows that CIA claimed–possibly, with the tacit approval of the Principals Committee–that the only two criminal statutes that could be applied to its interrogation program were the Torture Statute and the War Crimes Statute.

As a threshold matter, Horton appears to be misstating what the declination memo described in the footnote is and–more importantly–who wrote it. “Politically loyal US Attorneys” did not write the declination described here. Some lawyer at CIA’s CTC wrote it. That’s because, as the OPR Report explains in the section preceding the entirely redacted passage that discusses this letter (the declination letter appears on PDF 98, which appears in the same section as the following quotes from pages PDF 96 and 97), DOJ told CIA to go collect facts about the abuses they reported in January 2003 (which include the Salt Pit killing and threats of death used with Rahim al-Nashiri) themselves.

According to a CIA MFR drafted by John Rizzo on January 24,2003, Scott Muller (then CIA General Counsel), Rizzo and [redacted] met with Michael Chertoff Alice Fisher, John Yoo, and [redacted–probably Jennifer Koester] to discuss the incidents at [redacted]. According to Rizzo, he told Chertoff before the meeting that he needed to discuss “a recent incident where CIA personnel apparently employed unauthorized interrogation techniques on a detainee.”

[snip]

Chertoff reportedly commented that the CIA was correct to advise them because the use of a weapon to frighten a detainee could have violated the law. He stated that the Department would let CIA OIG develop the facts and that DOJ would determine what action to take when the facts were known. According to Rizzo, “Chertoff expressed no interest or intention to pursue the matter of the [redacted].

On January 28, 2003, CIA Inspector General John Helgerson called Yoo and told him that the CIA OIG was looking into the [redacted] matter. According to Helgerson’s email message to Rizzo, Yoo “specifically said they felt they do not need to be involved until after the OIG report is completed.” Rizzo responded to Helgerson: “Based on what Chertoff told us when we gave him the heads up on this last week, the Criminal Division’s decision on whether or not some criminal law was violated here will be predicated on the facts that you gather and present to them.”

Alerted that, in the course of interrogating detainees, CIA had killed one and threatened to kill another detainee, DOJ’s first response (at least according to two different CIA versions of what happened) was to tell CIA to go collect information on the events themselves. Only after CIA finished investigating and presented the facts of the case would DOJ weigh in on whether a crime had been committed.

Read more →

Yoo’s Supervisors Didn’t Know about the July 13, 2002 Fax

/16 Comments/in /by

As I pointed out in my last post, when Jonathan Fredman wrote the Abu Zubaydah torture team in Thailand to tell them they had gotten the green light to torture, he cited not the Bybee One memo which had just been signed, but a July 13, 2002 Yoo fax, for his discussion of intent.

This is significant not just because the language on intent in the fax lacks some of the caveats in the Bybee One Memo. But also because it appears Yoo was freelancing when he wrote the July 13 fax.

To be sure, the evidence that Yoo was freelancing when he wrote this fax is not as clear cut as it was for the Legal Principles/Bullet Point documents. Unlike the Legal Principles documents, this fax is on OLC stationary and signed by Yoo, making it appear, at least, like a formal OLC opinion.

But Yoo’s superiors at DOJ claim to have known nothing about it.

In response to July 2008 questions from the Senate Armed Services Committee, Jay Bybee said in October 2008 that he did not recall any written guidance to CIA before the August 1 memo.

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,”

Similarly, when asked in July 2008 whether anyone from his department had authorized torture before August 1, 2002, John Ashcroft claimed he “didn’t know.”

Mr. NADLER. Thank you, Mr. Chairman. Attorney General Ashcroft, in your testimony you mentioned Abu Zubaydah, who was captured in March 2002. The Inspector General report on the FBI’s role in interrogation makes clear that he was interrogated beginning in March of that year. The Yoo-Bybee legal memo was not issued until August 2002. So was the interrogation of Abu Zubaydah before August 2002 done without DOJ legal approval?

Mr. ASHCROFT. I don’t know.

Mr. NADLER. Well, did you offer legal approval of interrogation methods used at that time?

Mr. ASHCROFT. At what time, sir?

Mr. NADLER. Prior to August of 2002, March 2002.

Mr. ASHCROFT. I have no recollection of doing that at all.

Mr. NADLER. And you don’t know if anyone else from the Department of Justice did?

Mr. ASHCROFT. I don’t know.

[snip]

Mr. WEXLER. So from March to August, did you offer any legal approval of the interrogation methods used at that time?

Mr. ASHCROFT. I don’t have any recollection of doing so.

Mr. WEXLER. And did anyone else at the Department of Justice?

Mr. ASHCROFT. I don’t know. I don’t know.

And there is evidence that Jack Goldsmith didn’t learn about it until just before he left DOJ.

Read more →