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

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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.

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Abu Zubaydah’s Torturers Relied on July 13 Yoo Fax, not Bybee Memo

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There’s an astounding passage in Bybee’s Second Response to the OPR Report that reveals that Abu Zubaydah’s torturers relied on a July 13, 2002 memo Yoo sent to John Rizzo, rather than the Bybee One Memo, for their general torture authorization.

In a passage attempting to refute OPR’s assertion that the Bybee Memo was written so vaguely it could easily be misinterpreted, Jay Bybee’s lawyer, Maureen Mahoney, examines a set of documents the CIA wrote about torture to show (she claims) that CIA never misinterpreted “OLC’s advice,” including the Bybee One Memo. It’s clear that the documents she refers to include at least CIA’s own Interrogation Guidelines, the Bullet Points written to summarize OLC’s advice, the declination memo the Counterterrorism Center wrote in the Salt Pit killing, and a memo Jonathan Fredman, CTC’s top lawyer, wrote to the Abu Zubaydah interrogation team.

Here’s how she describes the Fredman memo:

In addition, the documents OPR uses to reveal the CIA’s understanding of the standards in the Bybee Memo (e.g., Report at 65-66) do not suggest there was any misinterpretation going on. As shown in subsequent sections, these documents (which Bybee never wrote or saw) were actually correct statements of the law. [Redacted] memo to the Abu Zubaydah interrogation team, for instance, which quoted from Yoo’s July 13, 2002 fax to Rizzo, provided a correct summary of the specific intent element. Report at 66; infra Section N.A. It is correct, as Yoo wrote, that 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.” Report at 48; infra Section IV.A. [PDF 32; my emphasis]

We know this memo was from Jonathan Fredman, because Mahoney refers to it again on the next page, and in that reference, the name “Fredman” is not redacted.

As this passage makes clear, Fredman wrote a memo to the Abu Zubaydah torture team including an analysis of how intent plays into Torture Statute. Now, the passage of the OPR Report that discusses this memo (document pages 65-66; PDF pages 71-72) is entirely redacted. But it appears after discussion of the finalization of the Bybee Memo on August 1, 2002, suggesting Fredman’s memo was sent after that date. Indeed, the first passage after the long redacted section refers to “a cable [] sent out last week, following the issuance of the opinions,” which would seem to be a reference to Fredman’s memo. In other words, the memo appears to post-date the Bybee One memo.

Nevertheless, the memo doesn’t refer to the Bybee One Memo for its discussion of intent. Rather, it refers to the July 13, 2002 memo that John Yoo faxed John Rizzo. While we can’t prove it with the redactions, it appears that Fredman made a conscious decision not to refer to the finished, official OLC memo, but instead referred to the more informal fax Yoo had sent earlier in the month.

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The Salt Pit and the Bybee Memos

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The AP has a long article out providing details behind the Salt Pit death of a detainee named Gul Rahman–a former militant associated with Gulbuddin Hekmatyar who was captured on October 29, 2002 at the home of Hekmatyar’s son-in-law, Dr. Ghairat Baheer, along with the Baheer and three others. A week later, Rahman was separated from the others. He was subjected to stress positions and water dousing and–on November 20–left in 36 degree cold, only to die a few hours later.

Aside from finally providing details on a story that has long been known, the story is interesting for the way it shows the how the CIA’s torture system fit with DOJ’s approvals in the Bybee Memos. The Rahman death shows that CIA’s managers (probably in the Counterterrorism Center) were involved in direct guidance on a technique that got someone killed. That technique was specifically not approved in the Bybee Two memo. But when CTC worked to exonerate the guy in the field–the manager of the Salt Pit–they pointed to the intent language of the Bybee One memo, and claimed that anything short of intending severe pain could not qualify as torture. Ultimately, CIA’s managers used the Get Out of Jail Free Card that John Yoo had written them to prevent accountability for themselves when they gave approval for a technique that got someone killed.

Gul Rahman died from water dousing

The AP describes how, in response to Rahman’s resistance to US guards (he threw a latrine bucket), he was subjected to stress positions and dousing.

At one point, the detainee threw a latrine bucket at his guards. He also threatened to kill them. His stubborn responses provoked harsher treatment. His hands were shackled over his head, he was roughed up and doused with water, according to several former CIA officials.

The exact circumstances of Rahman’s death are not clear, but the Afghan was left in the cold cell on the morning of Nov. 20, when the temperature dipped just below 36 degrees. He was naked from the waist down, said two former U.S. officials familiar with the case. Within hours, he was dead.

Though the AP doesn’t say it, the language used here makes it clear CIA thought of this as water dousing–a technique that would not be approved by DOJ for use until August 26, 2004. After Rahman died, the CIA tried to invent the Legal Principles document as a way to authorize murder and other crimes, but Jack Goldsmith would go on to not only refuse to consider that document OLC authorization, but to refuse to approve water dousing specifically in March 2004.

In other words, three years and our third review of this case later, and DOJ still hasn’t decided whether wetting someone down in close to freezing temperatures is a crime, even though this was a torture technique that DOJ had not approved at the time.

The Salt Pit manager relied on the advice of his superiors

Now, the guy who wet down Rahman apparently wasn’t working off a list of approved techniques. Rather, he was asking for guidance from his superiors.

The [Inspector General’s] report found that the Salt Pit officer displayed poor judgment in leaving the detainee in the cold. But it also indicated the officer made repeated requests to superiors for guidance that were largely ignored, according to two former U.S. intelligence officials.

That raised concerns about both the responsibility of the station chief and the CIA’s management in Langley. Similar concerns about CIA management were later aired in the inspector general’s review of the CIA’s secret interrogation program.

In fact, John Yoo, appears to blame the people interpreting the Bybee Memos for any untoward results from torture. For example, he refers to a written document (probably cables to the field) that appear to be derivative of the Bybee Memo, suggesting those didn’t properly account for pain that might amount to death.

The Memo says that the pain must rise to the level that “would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of bodily functions.” Bybee Memo at 6. There is no way to interpret this sentence other than that if the pain is equivalent to the pain that accompanies those conditions, the infliction qualifies as torture, whether or not it actually does result in those conditions. It certainly would not be so misinterpreted by the sophisticated legal audience at which the Bybee Memo was directed–especially given the analysis in the Classified Bybee Memo, which carefully examined the level of physical pain caused by the individual interrogation techniques even though none of those techniques cause death, organ failure, or serious impairment of bodily functions. See Classified Bybee Memo at 9-10 (“With respect to physical pain, we previously concluded that ’severe pain’ within the meaning of Section 2340 is pain that is difficult for the individual to endure and is of an intensity akin to the pain accompanying serious physical injury.”)40

40 [long redaction] But, of course neither Professor Yoo nor Judge Bybee have anything to do with writing or reviewing [redacted] and they could reasonably assume their own work product would be read in good faith and consistently with its terms by a sophisticated audience even if a particular reader did not read it carefully or willfully disregarded its terms. [emphasis original]

That is, Yoo seems to blame whoever both read the Bybee Memo and–having interpreted the memo in a “sophisticated” manner–passed on authorization for techniques that did result into death.

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Did DOD Have ANY Authorization for Torture after 2004?

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There are a couple of things that have been bugging me about the authorizations DOD got for interrogations.  It’s not clear what kind of authorization DOD used to justify detainee interrogations after the Yoo memo was withdrawn in 2003-2004–they had no overall interrogation approval from OLC. While it’s possible they were just relying on already-existing DOD documents, there are hints that DOD was either relying exclusively on the CIA’s more expansive authorizations (that included waterboarding), or they had some alternative approval that may not have involved OLC at all.

As I’ve shown (here and here), in March 2004, DOD requested approval to use–at the least–extended isolation with detainees. In response, Jack Goldsmith and Steven Bradbury started trying to replace the 2003 Yoo memo.

At precisely the same time, Goldsmith was working through the mess created by the Legal Principles document. As you recall, faced with clearly illegal conduct and with the opportunity to investigate that conduct themselves in 2003, CIA worked back channel with Jennifer Koester and John Yoo to summarize the legal advice given on torture, going so far as to claim certain techniques (like abdominal slap and diapers) had been approved when they hadn’t been. During that period, Koester and Yoo gave CIA an opportunity to review and provide input on the 2003 Yoo memo. Then, Koester and Yoo relied on the Yoo memo for several of the claims they made in the Legal Principles. That raises the possibility that one reason the Yoo memo was so bad (it was even more permissive than the Bybee One memo) was to help CIA avoid criminal liability for crimes already committed.

At the very least, this is proof that CIA and DOD were both relying on advice given to the other agency to justify their own agency’s actions. We know DOD used the Bybee memos (and oral authorization from Yoo based on that analysis) to authorize its treatment of Mohammed al-Qahtani in 2002-2003. And the Legal Principles show CIA was using the Yoo memo, written for DOD, to authorize its treatment of multiple detainees in anticipation of the CIA IG Report. In other words, though DOJ liked to maintain the fiction that the approval tracks for CIA and DOD were separate, they weren’t, at least not when John Yoo was involved.

And that was becoming crystal clear in spring of 2004. (In the same phone conversation in which Goldsmith confirmed that the Legal Principles weren’t an official OLC document, he also asked Yoo for details of his verbal authorizations to Jim Haynes leading up to the al-Qahtani torture, so he clearly pursued these issues in tandem.)

Yet after that, CIA’s memos got withdrawn and replaced. DOD’s Yoo memo reportedly was withdrawn. But no formal guidance from OLC ever replaced it.

So what happened after that point?

The Daniel Levin Memo

My concerns about DOD’s later authorizations stem partly from a memo Daniel Levin wrote John Ashcroft and Jim Comey in September 2004 to summarize all the advice OLC had given on torture. Read more →

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 →

Mukasey’s Muddle

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Say what you will about Michael Mukasey, but usually he can craft a fairly logical argument.

That’s not, however, true of this muddled op-ed in the WSJ. The op-ed attempts to draw an equivalence between lawyers–but not civil liberties organizations–that have represented Gitmo detainees and Yoo and Bybee (and, by association, though he doesn’t admit it, Michael Mukasey). But the muddle that results demonstrates as well as anything how conflicted and illogical Mukasey’s own position is.

Mukasey starts by asserting a parallel between three different sets of lawyers:

  • Bernie Madoff’s lawyer
  • Yoo and Bybee “for legal positions they took as to whether interrogation techniques devised and proposed by others were lawful—a campaign that also featured casual denunciations of them as purveyors of torture”
  • Lawyers in private practice who represented detainees and “have been portrayed as in-house counsel to al Qaeda”

Now, Mukasey misrepresents why Yoo and Bybee are being attacked. It’s not because of the legal positions they took, it’s because of the process by which they purportedly came to those opinions.

But look how quickly claiming a parallel between these three groups of lawyers–two engaged in antagonistic proceedings, the third not–to this step.

A lawyer who represents a party in a contested matter has an ethical obligation to make any and all tenable legal arguments that will help that party. A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe.

Mukasey moves from legal representation of a client to–in Mukasey’s own words–“authoriz[ing] any step or practice the law permits … to keep the nation … safe.” Mukasey is now saying that Yoo and Bybee authorized torture, rather than analyzing statutes such that their client (whoever Mukasey wants to claim that is, because it changes) can authorize torture, based on Yoo’s legal advice. (Note, as AG, Mukasey may well have authorized such things, but the arguments folks have made to defend Yoo all presume he didn’t do the actual authorization, which would suggest he made the policy decision.)

And never mind the unquestioned assumption that lawyers are obligated to do this “in order to keep the nation … safe,” suggesting that the purported efficacy of the torture somehow changed the legal obligations involved.

In other words, these are not at all parallel cases. One is protecting the law, the process of the law. The other is claiming to protect the country, with a pretty twisted definition of the role of the lawyers involved.

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Ronald Rotunda: Yoo Sent Email to Someone Else

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Ronald Rotunda, having received a copy of my post suggesting that he was the professor whom Yoo emailed looking for help on common law defenses, has emailed to say he did not correspond with Yoo at all on these issues.

As you’ll recall, last month, I pointed to a section of the report describing Yoo asking a law professor how common law defenses work in criminal law (the correspondent is labeled a law professor in one of the drafts of the report). Based on the fact that only one law professor, Ronald Rotunda, was listed in the Glossary of Names included with the report and only one law professor appears in the unclassified sections of the report, I suggested that Rotunda appeared to be the person whom Yoo emailed. In addition, OPR sent Rotunda a draft of the report last March which, given the confidential nature of the investigation, seemed odd short of his involvement in the report itself.

But via email, Rotunda has said he was not the one to whom Yoo sent that email. With Rotunda’s permission, I’ve included his direct comments below (though I have grouped them so that his responses to my questions are together).

At first, it seemed that Rotunda was denying having corresponded with Yoo directly about torture.

I do know that no one ever sent me emails or other communications about the torture memos, and — if they had — I would have said what I have always said: our government should not use waterboarding.  While I do not believe in discipline for the lawyers involved (for reasons I stated in my letter), I also do not embrace those memos.

When I noted that the email in question was not about torture memos but would have appeared, instead, to be a professional request unrelated to such issues (I quoted Yoo’s email as described in the OPR Report), Rotunda repeated that he had not received the email.

I never saw that email or responded to it until you all brought it up a few days ago. I hope that is clear.

[snip]

And, to be clear, I never responded to Yoo’s email because I never received it. He sent it someone else.

I apologize to Rotunda, then, for suggesting he was the one with whom Yoo had that email exchange. I will note Rotunda’s comments in the original post.

Rotunda’s explanation that he was not Yoo’s email correspondent presents another few puzzles, such as why OPR sent Rotunda a draft of the report in the first place, way back in March 2009.

I had a copy of the draft OPR report because the OPR sent it to me so that I could give OPR my opinion. After I sent my letter, OPR asked me to destroy the draft OPR report.

When I asked why DOJ would have chosen to send him the report for his opinion, Rotunda suggested that that might be because he has done work for DOJ in the past.

Over the years (actually, decades now), the Department of Justice has retained me on various matters.  I don’t think I have written anything that was sent to OPR until this time.  OPR sent me the material so that I could review the draft.  That I know.

[snip]

As for what I’ve done in the past, that would be confidential.  What has been publicly revealed (so there is no confidentiality requirement) is that many years ago I served as an expert witness for the Department of Justice in a fraud case. I really don’t remember the details, but it was at least twenty years ago. (Sadly, that proves I’m no spring chicken.)

It also raises the question of why Rotunda’s name was listed in the Glossary of Names included as Appendix C of the report.

I suppose my name was listed in the Glossary because I wrote the letter.  You probably should ask OPR why my name was listed. I don’t know.

[snip]

What I don’t know is why I’m in the Glossary. OPR should know that.

I have asked DOJ for more explanation of why OPR sent Rotunda a copy of the report last March and will let you know what they say.

Meanwhile, that leaves the question of who Yoo consulted to come up with his crappy defenses section unanswered.

The Waterboarding Smoking Gun, Again

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Since Mark Benjamin has decided to claim–some 300-plus days after I did the first of many posts focusing on the details of waterboarding (to say nothing of posts drational did looking at these descriptions medically)–that, “the agency’s “enhanced interrogation program” haven’t been mined for waterboarding details until now,” I thought I’d make another point about the significance of those details.

As Mark points out and I’ve been pointing out for 11 months, the torturers did far more during waterboarding than what members of the military underwent in SERE training. They dumped large amounts of water onto detainees, and made sure detainees inhaled water. This is far worse than either the Bybee Two Memo or SERE training describes.

Which is why it is so important that, six days before Yoo finalized the Bybee Two memo describing a relatively controlled waterboarding process, Jim Haynes went out of his way to get JPRA to send CIA a description of waterboarding that also didn’t resemble waterboarding as it was done in SERE training (Haynes appears to have given orders eliciting that description in a face-to-face meeting).

As the SASC reported, DOD General Counsel Jim Haynes got JPRA, the entity that administers SERE training, to put together two packets of information on July 25 and 26, ostensibly about SERE training, though JPRA personnel realized he wanted to use it to reverse-engineer the techniques. As we now know, those were crucial days of the Bybee Memo drafting process, when Yoo was looking for more data before he could approve waterboarding, and at about the time when CIA decided it wanted written approval of the torture techniques. But the description JPRA sent Haynes (and CIA)–a description that the OPR Report makes clear OLC received–didn’t describe waterboarding as the Navy used it. Rather, it described waterboarding as it would ultimately be practiced by the CIA.

JPRA’s description of the waterboarding technique provided in that first attachment was inconsistent in key respects from the U.S. Navy SERE school’s description of waterboarding. According to the Navy SERE school’s operating instructions, for example, while administering the technique, the Navy limited the amount of water poured on a student’s face to two pints. However, the JPRA attachment said that “up to 1.5 gallons of water” may be poured onto a “subject’s face.” While the Navy’s operating instructions dictated that “[n]o effort will be made to direct the stream of water into the student’s nostrils or mouth,” the description provided by JPRA contained no such limitation for subjects ofthe technique. While the Navy limited the use ofthe cloth on a student’s face to twenty seconds, the JPRA’s description said only that the cloth should remain in place for a “short period of time.” And while the Navy restricted anyone from placing pressure on the chest or stomach during the administration of this technique, JPRA’s description included no such limitation for subjects of the technique.

Think about it. Why would Haynes make sure Yoo had this description, particularly if Yoo was going to use a more restrained description of the practice in his memo (just as he did with his description of sleep deprivation and small box confinement)? Why didn’t they just use a description of what the Navy actually did? And where would JPRA have gotten that description? How did it happen that OLC ended up getting a description of waterboarding as it would ultimately be practiced?

There are a  number of possibilities: maybe JPRA got a hold of Mitchell and Jessen’s description of waterboarding as proposed and used that instead. Maybe CIA knew they were going to exceed the limits Yoo described in the memo.

Or, maybe JPRA somehow described waterboarding as it had already been applied to Abu Zubaydah.

I can’t yet prove which of those things happened. But I’d suggest that, now that others have decided to look at descriptions I’ve been writing about for 11 months, they also might want to look at this particular description, which in theory, at least, preceded the waterboarding purportedly authorized by the Bybee Memo six days later.

Clarence Thomas’ Revenge

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Rosalind linked to this LAT article describing Clarence Thomas’ pro-abuse views.

According to Supreme Court Justice Clarence Thomas, a prisoner who was slammed to a concrete floor and punched and kicked by a guard after asking for a grievance form — but suffered neither serious nor permanent harm — has no claim that his constitutional rights were violated.

Thomas objected when the high court, in a little-noted recent opinion, said this unprovoked and malicious assault by a North Carolina prison guard amounted to cruel and unusual punishment.

[snip]

According to Thomas, this harsh treatment did not qualify as cruel and unusual punishment. “Judges — not jailers — impose punishment,” he wrote.

[Thomas and Scalia] explained that the word “punishment” as it was used in the English Bill of Rights in 1689 referred to judges imposing punishment for a crime. Prison guards do not impose “punishment” even if they mete out cruelty, they said.

The entire article is worth reading not just because it reveals where Thomas will weigh in if torture ever gets to SCOTUS.

But it highlights a point I noted (as did Citizen92): the degree to which Clarence Thomas’ former and future clerks implemented our country’s torture regime.

Page 25 to 27 (PDF page 31 to 33) of the OPR Report includes a section on the background of the lawyers who had significant hand in writing the torture memos:

John Yoo. Clerk, Clarence Thomas,1994 to 1995

Patrick Philbin, Clerk, Clarence Thomas, 1993 to 1994

Jennifer Koester, Clerk, Clarence Thomas, 2004 to 2005

Steven Bradbury, Clerk, Clarence Thomas, 1992 to 1993

Of the list included on those pages, just Jack Goldsmith and Daniel Levin did not clerk for Thomas. And of course, the most egregious work came from lawyers–Yoo, Koester, and Bradbury–who were Thomas clerks.

This is one of the dangers of appointing a partisan hack like Thomas rather than radical, but intelligent, lawyers like Alito and Scalia. Because the partisan hack is going to launch a whole generation of lawyers (see also Citizen92’s focus on James Ho, who also went through OLC) who treat law like one big game of sophistry and human beings like objects into really prominent positions.

And I would bet that Clarence Thomas enjoys the little part he has had in shredding our country’s Constitution.

“We all benefited” from Margolis’ tenure

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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