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The OLC Memos, “Erroneous and Inflammatory Assumptions,” and John Rizzo’s Lies

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In his statement on the torture memos today, Obama suggested that some of the "assumptions" about what Americans had done were wrong, and that releasing the memos would correct these "assumptions."

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.[my emphasis]

This suggests (though weakly) that the OLC memos–and not other evidence–should be taken as authoritative on the events surrounding our interrogation program.

Though, on several counts, this is not true.

The most troubling example pertains to Abu Zubaydah’s mental state before he was tortured. John Yoo (writing under Jay Bybee’s name) goes to some lengths to establish Abu Zubaydah’s sanity. After five paragraphs that basically make Abu Zubaydah out to be a self-confident stud, here’s what Yoo says about AZ’s psychological health.

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods. Through reading his diaries and interviewing him, you have found no history of "mood disturbance or other psychiatric pathology[,]" "thought disorder[,] … enduring mood or mental health problems." He is in fact "remarkably resilient and confident that he can overcome adversity." When he encounters stress or low mood, this appears to last only for a short time. He deals with stress by assessing its source, evaluating the coping resources available to him, and then taking action. Your assessment notes that he is "generally self-sufiicient and relies on his understanding and application of religious and psychological principles, intelligence and discipline to avoid and overcome problems." Moreover, you have found that he has a "reliable and durable support system" in his faith, "the blessings of religious leaders, and camaraderie of like-minded mujahedin brothers." During detention, Zubaydah has managed his mood, remaining at most points "circumspect, calm, controlled., and deliberate." He has maintained tius demeanor during aggressive interrogations and reductions in sleep. You describe that in an initial confrontational incident, Read more →

The Torture Memos

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ACLU has them posted:

August 1, 2002 John Yoo memo

First May 10, 2005 Steven Bradbury memo

Second May 10, 2005 Steven Bradbury memo

May 30, 2005 Steven Bradbury memo

And while you’re over at ACLU, consider showing them some love for all their great work prying these out of the government. 

Consider this a working thread.

Update: Did I say they were worried about blows to the head? From the August 1, 2002 memo:

For walling, a flexible false wall will be constructed. The individual is placed with his heels touching the wall. The interrogator pulls the individual forward and then quickly and firmly pushes the individual into the wall. It is the individual’s shoulder blades that hit the wall. During this motion, the head and neck are supported with a rolled hood or towel that provides a c-collar effect to help prevent whiplash. To further reduce the probability of injury, the individual is allowed to rebound from the flexible wall. 

Oh, and did I mention that they were using Abu Zubaydah as a human guinea pig, to test out methods they wanted to get approved? I ask, you see, because Abu Zubaydah told the ICRC that they only put in the "flexible false wall" after they started this technique.

Obama on the OLC Memo Release

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With my comments interspersed:

The Department of Justice will today release certain memos issued by the Office of Legal Counsel between 2002 and 2005 as part of an ongoing court case. These memos speak to techniques that were used in the interrogation of terrorism suspects during that period, and their release is required by the rule of law.

Michael Hayden was on claiming they could have won this in court–I think he’s really underestimating how fed up Hellerstein is with this bullshit. 

My judgment on the content of these memos is a matter of record. In one of my very first acts as President, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer. Enlisting our values in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past.

But that is not what compelled the release of these legal documents today. While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.

Note the admission that not all of the practices have been acknowledged. Perhaps, just for example, blows to the head?  Also, the recognition that these have been widely reported suggests the ICRC report may have made a difference in this fight.

In releasing these memos, Read more →

Durbin and Whitehouse: Why Did Mukasey Give OLC a Peek at the Yoo/Bradbury Results?

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Dick Durbin and Sheldon Whitehouse want to know why the Office of Professional Responsibility gave OLC a chance to review their report on John Yoo’s and Steven Bradbury’s torture memos.

Just last week, they got a response from DOJ on the process the OPR review has gone through, revealing that the report already integrated comments from Mukasey and "OLC" (whose acting head was Steven Bradbury), and was giving Bradbury, Yoo, and Jay Bybee an opportunity to comment, as well. It will take "substantial time" before this review process is done, DOJ says.

OPR has completed its investigation of this matter and in late December 2008, provided the draft report to Attorney General Mukasey and invited comment. Attorney General Mukasey shared the report with Deputy Attorney General Filip and OLC. Thereafter, Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments, and OPR revised the draft report to the extent it deemed appropriate based on those comments.

In addition, during the course of the investigation, counsel for the former Department attorneys asked OPR for an opportunity to review and comment on the report prior to any disclosure of its results to Congress or the public. Attorney General Mukasey and Deputy Attorney General Filip likewise requested that OPR provide the former Department attorneys with such an opportunity. For these reasons, OPR is now in the process of sharing the revised draft report with them. When the review and comment period is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the Department will determine what disclosures should be made. Due to the complexity and classification level of the draft report, the review process described above likely will require substantial time and effort.

Which of course raises a whole slew of questions, some of which Durbin and Whitehouse have now posed to DOJ. Such as whether OLC’s review of the document influenced Steven Bradbury’s January 15 OLC memo withdrawing certain earlier opinions. 

Your letter does not indicate whether Steven Bradbury was recused from reviewing and providing comments on the draft report.  Mr. Bradbury, who was then the Principal Deputy Assistant Attorney General of OLC, is reportedly a subject of the OPR investigation. Read more →

Call for the Senate to Vote for Process at OLC–and Dawn Johnsen

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Update: Predictably, Arlen "Scottish Haggis" Specter put a one-week hold on Dawn Johnsen. Call Specter at (202) 224-4254 and tell him to stop obstructing Obama’s nominees. It’s time we cleaned up OLC and Specter’s just ensuring the Cheneyesque abuse of power will continue for a few more weeks.

In short time, the Office of Professional Responsibility will release a report on the abuses of John Yoo at OLC. The report will describe a process which Yoo used to "analyze" law that looks something like this:

  1. David Addington calls Yoo and tells him what program Cheney wants to do–or has already started doing
  2. An official request for a memo comes from Alberto Gonzales or Jim Haynes, presenting that desired program as a hypothetical–"what if we wanted to do X"–rather than the fait accompli Addington presented it as over phone or email
  3. Yoo drafts a memo authorizing that program
  4. Yoo eliminates or otherwise frivolously dismisses references to key precedents like Youngstown or Milligan
  5. Yoo scours obscure documents–like insurance legislation or TV series–to find standards for torture and domestic surveillance that allows him to stretch the limits of legality well beyond belief
  6. Yoo finalizes draft and sends it to Addington
  7. Addington corrects it with a big red pen
  8. Yoo makes Addington’s final changes and distributes memo to about 3 people
  9. All 3 people receiving the memo put it into a drawer, a briefcase, or a man-sized safe, to make sure those implementing this program will never see it
  10. When Congress or the ACLU or some other do-gooder asks for a copy, tell them it’s unclassified, but they still can’t have it "so there"

Today, the Senate Judiciary Committee will finally consider Dawn Johnsen’s nomination to head up OLC (it should be on the committee stream at 10–though she’s the last thing on the agenda). You’ll hear a lot of Republicans–Arlen "Scottish Haggis" Specter and Tom Coburn, among others–claiming that Dawn Johnsen is a radical who eats babies and loves terrorists.

But compare how Dawn Johnsen–that soon to be accused-baby eater–has promised to craft OLC memos to how we know Yoo did (what Johnsen calls the advocacy model).

1. When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

2. OLC’s advice should be thorough and forthright, and it should reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government—the courts and Congress—and constitutional limits on the exercise of governmental power.

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Unemployed Bush Lawyers and the OPR Report

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Let’s do some math.

First, the NYT reports that, like Alberto Gonzales, David Addington is also facing some career challenges. 

David S. Addington, a top aide to Vice President Dick Cheney who was a forceful voice in internal legal debates, is also said to still be looking for work.

Next, Scott Horton reports on the upcoming OPR report detailing John Yoo and Steven Bradbury’s unethical conduct in craft OLC memos to justify torture. The report, apparently, focuses on contacts between the White House and OLC.

Sources at the department who have examined [the OPR] report state that it echoes some of the harshest criticisms that have appeared in the academic literature, but the report’s real bombshell, they say, will be its detailed disclosure of Yoo’s dealings with the White House in connection with the preparation of the memos. It is widely suspected that the Yoo memos were requested as after-the-fact legal cover for draconian policies that were already in place (“CYA memos”). If the Justice Department internal probe concludes this is the case, that could have clear consequences for the current debate surrounding the Bush administration’s accountability for torture. [my emphasis]

Earlier reports had mentioned some surprise among observers that investigators had included the contents of emails, which makes me wonder whether the White House’s so-far success at eliminating emails from other periods–like September-October 2003–when they were breaking the law didn’t extend as far back as 2001 and 2002.That is, I wonder whether the surprise had as much to do with the fact that OPR managed to get emails between the White House and Yoo, as with the emails themselves.

Now, right off the bat, I can think of some dates that might make this more interesting. The warrantless wiretap program started in early October. But they were still writing new memos to authorize it (and eliminate the Fourth Amendment) for several months after the fact (though the OPR investigation into wiretapping is separate). They started torturing Abu Zubaydah before August 1, 2002, when Yoo’s first memos came out on it (I suspect the third still-classified memo may retroactively approve the earlier torture). And DOD started the torture regime before authorization for that went up the chain of command.

There are already a few memos where we know the illegal program started, only to be followed by a Yoo memo authorizing that program (there’s an August 1, 2002 one that I suspect may retroactively Read more →

John Yoo’s Wrestling Match with the First Amendment

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Among his other specious attempts at self defense in this column, John Yoo claims,

The government faced another fundamental question, which we addressed in our memo. Does the Fourth Amendment’s requirement of a search warrant based on probable cause regulate the use of the military against terrorists on our soil. In portraying our answer, the media has quoted a single out-of-context sentence from our analysis: "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

This line deliberately misrepresents the memo. The sentence only summarized a 1931 holding of the Supreme Court in the case of Near v. Minnesota concerning press freedom: "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right." The Court continued: "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops."

Our memo had nothing to do with the First Amendment.

Pot, Kettle

Understand, one of Yoo’s central strategies in this memo is to strip the 2001 AUMF out of the context in which Congress specifically refused to authorize the use of "appropriate force" in the United States. Stripped from that context, Yoo claims in the memo that the AUMF explicitly allows for the "domestic use of force."

Section 2 [of the AUMF] authorizes the use of "all necessary and appropriate force" against the designated nations, organizations or person. Further, Congress declares that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." … This broad statement reinforces the War Powers Resolution’s acknowledgment of the President’s constitutional powers in a state of national emergency. Like the War Powers Resolution, [the AUMF] does not limit its authorization and recognition of executive power to the use of force abroad. Indeed, [the AUMF] contemplates that the domestic use of force may well be necessary and appropriate. For example, [the AUMF’s] findings state that the September 11 attacks "render it both necessary and appropriate that the United States … protect United States citizens both at home and abroad." (emphasis Yoo’s).

By focusing on a "single out-of-context sentence," Yoo claims Congress authorized something it specifically refused to do–authorize "all necessary and appropriate force in the United States and against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" 9/11.

Read more →

They Picked a Bad Week to Stop Sniffing Glue

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The Obama Administration got stuck with a bad court date to have to try to convince a Judge the Jose Padilla suit against John Yoo should be dismissed. After all, we knew Yoo’s memos were legally indefensible. But with the release of nine new OLC memos–including the memo eviscerating the Fourth Amendment, the two withdrawing that one and others, and, significantly, one of the memos pertaining to Padilla specifically ("authorizing" his military detention), the sheer cravenness of Yoo’s legal work is in sharp relief this week.

Nevertheless, they did argue Judge White should dismiss the suit. Though it sounds like he wasn’t impressed with their argument. 

The judge, Jeffrey S. White of Federal District Court, explored the arguments of Mr. Padilla’s lawyers thoroughly, but he appeared to be skeptical of elements of the government’s argument.

And he referred to the 4th Amendment Evisceration memo specifically.

In fact, Judge White, who was appointed by President George W. Bush, even told the government’s lawyers that Mr. Yoo’s 2001 memorandum stating that the constitutional protections against unreasonable searches and seizures can be overridden was “a pretty scary position.”

And there’s a further problem with the Administration’s position. They’re arguing that it is not the place for the Courts to take recourse against a government lawyer gone bad–it’s the role of the Executive.

But any recourse against a government lawyer "is for the executive to decide, in the first instance, and for Congress to decide," not the courts, she said. 

Which suggests that the Administration thinks its puny OPR investigation against Yoo is an appropriate response.

The Obama Administration has already signalled that it doesn’t plan real legal consequences for its lawyer for torture. And yet based on that, they want the Courts to butt out.

One more point. It appears that the Administration has not yet turned all the memos used to justfy Padilla’s treatment over (or at least not made them public). 

Earlier last week, the Obama administration released nine "war on terror" memos — some written by Yoo, others by 9th U.S. Circuit Court of Appeals Judge Jay Bybee — shortly after White ordered the DOJ to clarify whether it wanted to submit them under seal in the Padilla case. However, the administration didn’t release all of the memos referenced in Padilla’s complaint, Read more →

The FISA Dance in the Wake of 9/11

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Looseheadprop asks some good questions about the September 25, 2001 opinion on FISA David Kris requested from OLC.

Now that the Obama Administration has released this opinion (as well as others–see more FDL coverage from Christy and emptywheel), the first thing that strikes me is: How did he get this researched and written so fast (especially during a period when many people where spending lots of work hours reconnecting with friends and family and chewing over every scrap of information coming out of the attack sites)? Or had he started work on it earlier? And if so, why?

The question Kris asked, 

You have asked for our opinion on the constitutionality of amending the Foreign Intelligence Surveillance Act. . . so a search may be approved when the collection of foreign intelligence is "a purpose" of the search. In its current form, FISA requires that "the purpose" of the search be the collection of foreign intelligence.

… presents a ready answer for the timing. After all, Congress made almost precisely this change when it amended FISA as part of the PATRIOT Act, which got rushed through Congress from October 23 to October 26, 2001 ("the purpose" became "a significant purpose").

Change in certification requirement for electronic surveillance and physical searches under FISA from “the purpose” being gathering of foreign intelligence information to “a significant purpose” being gathering of foreign intelligence information.

Under Section 218, Sec. 104(a)(7)(B) and Sec. 303(a)(7)(B) of FISA, 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B) respectively, are amended to strike “the purpose” and to replace it with “a significant purpose.” As amended, under Sec. 104(a)(7)(B), in an application for a FISA court order authorizing electronic surveillance, a national security official must certify that “a significant purpose” of the surveillance is to gather foreign intelligence information. Similarly, in an application for an order authorizing a physical search under FISA, a national security official must certify, under the amended Sec. 303(a)(7)(B), that “a significant purpose” of the search is to gather foreign intelligence information. This has been interpreted to mean that the primary purpose of the electronic surveillance or physical search may be criminal investigation, as long as a significant purpose of the surveillance or search is to gather foreign intelligence information.

And the admission in the memo that "most courts have adopted the test that the ‘primary purpose’ of a FISA search is to gather foreign intelligence" may be the reason the PATRIOT Act ultimately included the modifer "significant" on "purpose." Thus, it seems that Kris was using this memo to prepare more general changes to FISA to make it easier to use intelligence information in criminal prosecutions (as LHP points out).

Read more →

Where Are the Other Memos?

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As we’ve been discussing, DOJ released nine previously unreleased OLC memos yesterday, two of which were Steven Bradbury memos basically saying, "oops, no harm no foul!!"

But they’ve still just released 5 of the 41 memos that the ACLU has requested in FOIA proceedings (as well as two that were not on that list, plus Bradbury’s two "no harm no foul" opinions). Where are the other memos? Why weren’t they released yesterday? Is it because they’re still active (and supporting torture and illegal wiretapping and whatnot??)

The question is especially pertinent given a few things Bradbury said in his January 15, 2008 "no harm no foul" opinion.

The Commander in Chief Is Only Sort Of Bound By the Law

To dismiss several opinions authorizing torture, Steven Bradbury quotes at length responses he made to Teddy Kennedy in 2005 when he still had hopes of becoming OLC head.

The federal prohibition on torture … is constitutional, and I believe it does apply as a general matter to the subject of detention and interrogation conducted pursuant to the President’s Commander in Chief authority.

[snip]

The President, like all officers of the Government, is not above the law. 

He goes on from there. But then, in a passage not included in his responses to Kennedy (that is, a passage unique to this memo) he says, 

We recognize that a law that is constitutional in general may still raise serious constitutional issues if applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II.

To Teddy Kennedy: The torture ban is constitutional and the President is not above the law.

To the file earlier this year: … unless "applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II."

Psych!!

We Remain Noncommittal about the President’s Authority to Suspend Treaties

And then, in his discussion about whether or not the President is above the law, Bradbury cited a 2007 OLC memo (which we didn’t get yesterday), to say that OLC had not yet weighed in on whether the President can suspend treaties.

The above critique is not meant to be a determination that under the Constitution the President lacks authority to suspend treaties absent authorization from Congress, the text, or background law. The White House did not directly ask that question … and we did not purport to resolve it.

The Loopholes Remaining and the Outstanding Memos

Now, I consider these Bradbury comments very troubling given the memos that DOJ did not turn over.

Read more →