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Was John Yoo Free-Lancing When He Approved the “Legal Principles”?

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Earlier today, I showed that there is a CIA document on the "Legal Principles" on torture that included legal justifications that had not been in any of the August 1, 2002 OLC memos authorizing torture. I showed that the document changed over time, but that when CIA asked Jack Goldsmith to "re-affirm" the Legal Principles in March 2004, he stated that he did not consider the document to be a product of OLC.

I have further inquired into the circumstances surrounding the creation of the bullet points in the spring of 2003. These inquiries have reconfirmed what I have conveyed to you before, namely, that the bullet points did not and do not represent an opinion or a statement of the views of this Office.

It seems–reading Jack Goldsmith and John Ashcroft’s objections to the CIA IG Report–that John Yoo was free-lancing when he worked with CIA on them.

In the DOJ dissent to the IG Report, Goldsmith explained that OLC disagreed with CIA’s representation of OLC’s role in drafting the Legal Principles document.

The disagreement revolves around the status of a document containing a set of bullet points outlining legal principles and entitled "Legal Principles Applicable to CIA Detention and Interrogation of Captured al-Qa’ida Personnel." The bullet points were drafted by OLC in consultation with OLC attorneys in the Spring of 2003. There is no dispute that OLC attorneys reviewed and provided comments on several drafts of the bullet points. In OGC’s view, OGC secured formal OLC concurrence in the bullet points and thus believed that the bullet points reflected a formal statement of OLC’s views of the law. OLC’s view, however, is that the bullet points–which, unlike OLC opinions, are not signed or dated–were not and are not an opinion from OLC or formal statement of views.

Goldsmith’s memo makes it clear, twice, that the work on the bullet points was the work of one OLC lawyer–John Yoo–and not the work of the department. Read more →

Condi’s Okay Came After OLC Approval

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Here’s an interesting data point.

On July 13, 2002, representatives of CIA’s Office of General Counsel (probably John Rizzo) met with John Bellinger, John Yoo, Michael Chertoff, Daniel Levin, and Alberto Gonzales for overview of interrogation plan. That very same day, Yoo wrote Rizzo, generally laying out the logic he would use in the later memos approving the program. He wrote:

Moreover, to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose of causing prolonged mental harm in order for the use of any of the predicate acts to constitute torture. Specific intent can be negated by a showing of good faith. Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental pain or suffering, he would not have acted with the specific intent necessary to establish torture.

Four days later, Condi told George Tenet the "CIA could proceed with its proposed interrogation of Abu Zubaydah … subject to a determination of legality by OLC."

In other words, OLC had already given CIA a pretty broad okay before Condi gave Tenet the policy okay.

One more detail of interest. Note the redacted name on the second page of the letter–perhaps as long as 16 characters long. That’s too long to be Jay Bybee or Pat Philbin (though it could be Patrick Philbin). Though it’s probably long enough to be either Robert Delahunty (who had partnered with Yoo on some other crazy opinions by that point) or David Addington. Or, heck, even Alberto Gonzales. Whose role in the torture approval process is DOJ trying to hide?

Update: One more detail of interest. On June 22, 2004, the same day Goldsmith, Comey, and Philbin withdrew the Bybee Memo, John Rizzo sent this earlier approval to Philbin. That seems to suggest that Philbin did not know about it and may even suggest that it wasn’t in OLC’s records (though Philbin, by that point, worked under Comey at DAG. 

Those Undated “Legal Principles”

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As I noted in an update to my post asking for the unsigned, undated document authorizing the expansion of the torture program from one applying just to Abu Zubaydah to one that could be exported around the world, I have found the document. Or rather the documents–they appear to have been revised over time. Here are three that were included in last night’s document dump.

April 28, 2003: Hand-carried from Scott Muller to John Yoo

June 16, 2003: Faxed from CTC to Patrick Philbin

March 2, 2004: Faxed from Scott Muller to Jack Goldsmith

The three are worth reading in sequence to see how the CIA’s gross rationalizations of patently illegal behavior evolved over time. The April document appears to be a draft developed with John Yoo. The second is a "final" version, apparently written by CIA, sent to Philbin for his files. And the last is a request from Scott Muller to get Jack Goldsmith to reaffirm the three August 1, 2002 memos, as well as the June 16, 2003 version of the legal principles, and add water flicking and water dousing to the approved techniques (which would not be done, ultimately, until the May 2005 memos).

The first copy includes one claim that was removed from the document entirely.

The United States is at war with al-Qa’ida. Accordingly, US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.

I guess we know where the culture that seemed to allow the raping of prisoners came from.

The June 16 document, in addition to shifting language about the US reservations on the Convention Against Torture and on whether international law imposes "no limitation" (April 28) or "no obligations" regarding the treatment of detainees, also had four paragraphs pertaining to the application of the Federal War Crimes statute, the torture statute, and the Fifth, Eighth, and Fourteenth amendments (note, those paragraphs appear in a second file included with the April 28 document, but must not have been part of it originally, because the fax cover sheet to Yoo noted only 3 pages).

In other words, sometime between April and June of 2003, some decided to replace Yoo’s broad "US criminal statutes do not apply" with a discussion of specific statutes that, for some pretty bogus reasons, they claimed did not apply. Read more →

Abu Zubaydah’s Psychological Profile

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One of the things we got in yesterday’s document dump is the psychological profile which John Yoo used to assert that Abu Zubaydah was fit to be tortured. There are four key details of it:

The Date

This document was faxed to John Yoo on July 25, 2002 at 5:04 PM (it was dated July 24), the day after OLC verbally authorized a number of the torture techniques used on Abu Zubaydah. But of course, they had already subjected him to two months of enhanced treatment–we know, for example, that they at least threatened to use the confinement box with him in May.

Which raises several questions. First, did they do any psychological profile before they first subjected him to sleep deprivation and isolation and confinement? Or did they just do one when OLC needed it to pretty  up the OLC opinion authorizing torture?

Also, how much of what it records is itself a reflection of this earlier torture? For example, when they cite Zubaydah admitting he lies,

He said, "I lie, lie, lie, lie, lie, lie, and lie."

Was he referring to something he did before he was captured–or after? Were they taking his retraction of things he said under coercion as proof that he was more generally a liar? (The context suggests it was before, but I’m not sure I buy that.)

No Apparent Mention of Abu Zubaydah’s Head Injury

There are two complete paragraphs redacted and significant other redactions here, so it may be they’ve redacted all discussion of whether a prior, serious head injury ought to preclude someone from torture. But in what is unredacted, there is no mention of his head injury. So, for example, the section on "Emotional/Mental Status/Coping Skills" starts with this claim:

Overall, subject’s background as revealed by self-report (including diaries and interview) does not indicate that he has a history of mood disturbance or other psychiatric pathology. Indeed, his reported and known history indicates that he is remarkably resiliant and confident that he can overcome adversity. During the occasions that he experiences increased stress and/or low mood, he may become somewhat more withdrawn, melancholy, and reflective. However, the shift in mood will likely last a relatively short time. He denies and there is no evidence in his reported history of thought disorder or enduring mood or mental health problems.

Keep in mind, if this assessment was done in July, then the "somewhat more withdrawn" periods mentioned refer to his response to prior abuse!! We know that twice, after Mitchell took control of his interrogation and subjected him to abuse, he stopped talking. But this is how the failure of past abuse got translated into his profile for OLC.

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Is DOJ Withholding the OPR Report Tomorrow to Frame a White-Wash Investigation?

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MadDog pointed to this passage in NYT’s story on the new revelations from the CIA IG report.

Besides the inspector general’s report, other documents expected to be released Monday are a 2007 Justice Department memo reauthorizing the C.I.A.’s “enhanced” interrogation techniques, documents that former Vice President Dick Cheney has said provide evidence that the interrogation methods produced valuable information about Al Qaeda; and Justice Department memos from 2006 concerning conditions of confinement in C.I.A. jails.

Best as I can tell, these are:

2007 Justice Department memo: The OLC memo Spencer was the first to report. From his Windy report:

As a result, according to the former senior intelligence official, after Bush issued the order, the CIA again asked the Justice Department’s Office of Legal Counsel to review the techniques listed in the revised interrogation program in order to determine their legality, just as the Office of Legal Counsel had done in 2002 and 2005, after previous periods of challenge to the post-9/11 interrogation program.

2006 Justice Department memos: The SSCI Narrative describes these to be interpretations of the DTA and the Hamdan decision.

In June 2006, in Hamdan v. Rumsfeld, the Supreme Court held that Common Article 3 of the Geneva Convention applied to the conflict with Al-Qa’ida, contrary to the position previously adopted by the President. Common Article 3 of the Geneva Conventions requires that detainees “shall in all circumstances be treated humanely,” and prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment” and “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” At the time of the Hamdan decision, the War Crimes Act defined the term “war crime” to include “a violation of Common Article 3.”

In August 2006, OLC issued two documents considering the legality of the conditions of confinement in CIA facilities. One of the documents was an opinion interpreting the Detainee Treatment Act; the other document was a letter interpreting Common Article 3 of the Geneva Conventions, as enforced by the War Crimes Act. These documents included consideration of U.S. constitutional law and the legal decisions of international tribunals and other countries.

Cheney’s documents: Reporting elsewhere suggests this will include more than just the two documents Cheney requested, but a few others. Read more →

Will Miguel Estrada Represent John Yoo Before Sonia Sotomayor at SCOTUS?

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I had a bit of a contest on Monday to guess which lawyer was representing John Yoo as Jose Padilla’s suit against him goes forward.

The winner of that poll is the anonymous reader who noted that Miguel Estrada represented Yoo when Yoo testified before Congress last year. You can let me know by email which deserving charity you’d like me to mail your utterly worthless hubcap to…

The Recorder has more details about the tough work Estrada has ahead of him. (h/t WSJ Law Blog)

John Yoo, author of some of the Bush administration’s war-on-terror memos, has hired Washington, D.C., lawyer Miguel Estrada to appeal a ruling that allowed an allegedly mistreated detainee’s suit against Yoo.

[snip]

Estrada has already been representing Yoo in an investigation by the Justice Department’s Office of Professional Responsibility into the legal work behind the memos. That investigation is ongoing, though the results could be released at any time, and a draft finding reportedly would have referred Bybee and Yoo to State Bar authorities for possible discipline.

As a reminder, this means that Estrada will represent Yoo as he attempts to convince the 9th Circuit to reverse the District Court’s ruling that Padilla’s suit against Yoo can move forward.  And–it is not unreasonable to imagine–regardless of what the 9th Circuit decides, the Latino the Republicans wished had been the first on SCOTUS (Estrada) might soon face the Latina Republicans will grudgingly see confirmed as Justice in the next few weeks for a big showdown over the rule of law. Any bets on whether Estrada makes more money trying to save Yoo from any consequences for his actions (yes, taxpayers will be footing Estrada’s bill) than Sotyomayor will make in her first year on SCOTUS?

In addition to reporting that Estrada will represent Yoo, the Recorder has some interesting speculation from some law professors who have been following the case on why Yoo needs his own lawyer.

New York University School of Law professor Stephen Gillers, who has written about the investigation into the memos, said that the Justice Department should not have been Yoo’s sole representation in the first place, because conflicts of interest between Yoo and his former employer were too likely to occur.

Yoo may have wanted to make arguments that the Justice Department couldn’t pursue, such as implicating other DOJ officials, Gillers said. Read more →

John Yoo: Al Qaeda Uses Telephones But KGB Spies Don’t

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There’s a lot that’s downright amusing for all but Berkeley’s trustees in John Yoo’s rebuttal to the IG Report. Though there is some good news for Berkeley: John Yoo has heard of Youngstown, even if the Korean-American has underplayed the context of the Korean War.

The 1952 Supreme Court case of Youngstown Sheet & Tube v. Sawyer is the IG’s lodestar. In Youngstown, the Court addressed President Harry Truman’s effort to seize steel mills shut down by a labor strike during the Korean War. Truman claimed that maintaining production was necessary to supply munitions and material to American troops in combat. Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes. It does not, however, address the scope of the president’s power involving military strategy or tactics in war.

Our mistake in 2001, I guess, was to have had our labor discussions face to face and not via email.

But I’m most amused that John Yoo believes that the best way to find al Qaeda–an organization that had already cut back on the use of cell phones before 2001 and increasingly employed hawalas to elude electronic communication–is via tapping high tech communications.

Unlike, say, Soviet spies working under diplomatic cover, terrorists are hard to identify. Yet they are vastly more dangerous. Monitoring their likely communications channels is the best way to track and stop them. Building evidence to prove past crimes, as in the civilian criminal system, is entirely beside the point. The best way to find an al Qaeda operative is to look at all email, text and phone traffic between Afghanistan and Pakistan and the U.S.

"The best way" to find an al Qaeda operative is to search high tech traffic between a select group of countries that doesn’t even include the country from which most 9/11 hijackers came? 

Well, really, the whole thing is worth more for laughs, as Yoo desperately tries to shoot down the straw men haunting his unconscious. But at least we learn this.

"The best way" to find al Qaeda operatives is not, apparently, to torture other suspects. 

Well, I’m glad Yoo finally figured that out. 

Update: Anonymous Liberal apparently still has the patience with Yoo to engage him in good faith. But his entire post is worth reading for the way he slaps Yoo up silly with analysis from … John Yoo.

The “Other Intelligence Activities”

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I was a bit disappointed by the number of stories about the IG Report on the domestic surveillance program last week that claimed the report revealed the program was larger or more extensive than previously admitted or known. After all, the report itself notes,

The specific details of the Other Intelligence Activities remain highly classified, although the Attorney General publicly acknowledged the existence of such activities in August 2007.

Moreover, the "Other Intelligence Activities" have in fact been reported. Just days after the program was initially exposed, for example, Lichtblau and Risen reported,  

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system’s main arteries, they said.

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.[my emphasis]

In other words, those two aspects of the program–massive collection of data directly from telecommunication circuits and subsequent data mining of that data–has been reported almost from the first reporting on this program. And EFF wrote a 63-page brief collecting the many acknowledgments, from both Administration officials and members of Congress briefed on the program, of the expansive collection and data mining aspects of the program.

The "Other Intelligence Activities" Were the Source of the March 10 Hospital Confrontation

I think it important to emphasize that we do know what these "Other Intelligence Activities" (OIA) are because the report confirms that these OIAs were the source of the March 10 hospital Confrontation.

We’ve had confirmation that the collection and data mining aspects of the program were the source of the confrontation for two years. 

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.

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Yoo Lawyers Up for a Shot at the 9th

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The 9th, John Yoo? You really think the 9th Circuit is gonna be more sympathetic to your cause than the judge who already ruled Padilla can sue you? (h/t fatster)

Former Bush administration lawyer John Yoo will appeal a federal judge’s ruling that allowed a prisoner to sue him for devising the legal theories that led to his alleged torture, Yoo’s attorneys said today.

President Obama’s Justice Department, which represented Yoo in unsuccessfully seeking dismissal of the suit, filed a notice saying he would ask the Ninth U.S. Circuit Court of Appeals in San Francisco to intervene in the case. Department attorneys also said they were dropping out of the case and that Yoo was now represented by a private lawyer, not identified in the court document.

Well, I guess you gotta go through the 9th to get to Scalia and Alito…

Enter your vote below for which private lawyer Yoo has retained to try to save his rear end.

The Scope of the (Hypothetical) Torture Investigation

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It was just last night that Newsweek floated the notion of a torture investigation, and we’re already into a hot debate about the scope of any (thus far still hypothetical) investigation. Here are the posts you should read:

  • Tim F @BalloonJuice arguing that an investigation of just the torturers who exceeded guidelines would be worse than no investigation
  • Spencer@Attackerman arguing that focusing on the CIA–rather than the decision-makers–would be wrong
  • Glenn@Salon cataloging the different stories about scope–and arguing that if the investigation focuses on CIA it’ll be Abu Ghraib redux

Glenn and Spencer both point to Scott Horton–reporting that there is unlikely to be such a limit on scope–in an article I’ll look at in some detail below.

My take–one derived from some weeds–is that if Holder approves an investigation, it’ll be unlikely to just take on low-level CIA interrogators.

First, consider who we’re talking about. We’re not, actually, talking about low level CIA interrogators. We’re talking about contractors. James Mitchell, to be exact. And if James Mitchell is not the psychologist/interrogator who acknowledged he had exceeded the limits set by John Yoo’s Bybee Memo, but justified it by saying he had exceeded those limits (by using way more water, for longer time, and pressing on the detainee’s gut) because those things make the simulated drowning technique "for real–and … more poignant and convincing," then it’s almost certainly someone who works for James Mitchell and probably used to work for the DOD entity that administers SERE.

I, frankly, have no problem with prosecuting Mr. Poignant the sadist torturer and, given his acknowledgment that he exceeded Yoo’s guidelines, that’s probably where an investigation would start.

Now, as I said, Mr. Poignant is either James Mitchell or someone associated with him–the "psychologist/interrogator" strongly suggests this person is a contractor, not a CIA employee.

That means that going after Mr. Poignant gets you, in either one step or two, to the contractors who worked from the start to profit off torture.

And that gets you, almost immediately, to the process that the torture architects used to authorize their torture. That’s because there is a paper trail showing that the torture architects knew and intended the torture to exceed even Yoo’s memo. This is a document that both Jim Haynes and John Rizzo had and–between the two of them–gave to John Yoo during the drafting process for the Bybee Memo as the basis for his description of waterboarding.

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