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Did Zero Dark Thirty Accidentally Tell the Most Dangerous Truth?

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Update: Let me make this clear: I am not commenting on the content of the movie. I am commenting on the content of John Rizzo’s reactions to the movie, particularly his depiction about when and how and by whom “the box” was approved, which — as I say several times — get to the core of the legal problems with torture. 

In a development I could have predicted, one of former CIA Acting General Counsel John Rizzo’s chief complaints with Zero Dark Thirty has to do with how the movie depicted “the box.” (This exchange comes from the first comments Rizzo made at an AEI event with him, Dick Cheney flack Marc Thiessen, former CIA Director Michael Hayden, and the director of the torture program, Jose Rodriguez).

MR. RIZZO: The interrogation scenes – I mean, they were – they were striking. They were hard to watch for me, having lived through this and how the – how the actual techniques came to be, and all the safeguards we put on them, all the monitoring by medical personnel during the course of the interrogation – you know, again, it’s a movie, so you know, the character in the movie, the interrogator, seemingly making stuff up as you went along, you’re not talking – OK, bring on the water and –

MR. : (Off mic) – get the buckets.

MR. RIZZO: – and get the buckets – now, the box – people have asked me about the box. And since this whole thing has been declassified now, most of you probably know that one of the techniques was a box, putting a detainee in a box for a – for a limited duration. Now, the box in the movie is not the kind of box that was – that was used. When I say all this, I don’t want to downplay or leave any impression that the actual program, the actual – the actual waterboarding was, you know, was tame or benign. I mean, it was a very aggressive technique, as were all the – all the others. But – so on the whole, I mean, I went into it – I went into it telling myself it was going to be a movie. I was frankly relieved that there were no lawyers involved in the movie. (Laughter.) I would have just spent the next four years at cocktail parties explaining why I wasn’t that lawyer. So I was – so I mean, on the whole, it’s as they said. It was a mixed bag, but it was a terrific movie. And you know, I think it did really take no sides and Miss Bigelow and Mr. Boal, I think, skillfully teed up the complicated moral questions of all of this we’re facing, especially in those first few scary months after the 9/11 attacks.

MR. THIESSEN: Can I – just to follow up on that. I mean, you know, you were the chief legal officer at the time. I mean, would you have authorized the interrogation techniques the way they were depicted? I mean, explain the difference in the box – (chuckles) – explain the – you know, explain that you – do people just throw somebody on a mat and start pouring water over their heads? I mean –

MR. RIZZO: No, no, the – first of all, you know, it was – it was “Mother, May I.” Those interrogators were not allowed to adlib. There were certain specific –as the memos – OLC memos show at the time, I mean, it was a – there was a meticulous procedure to undertake. And before the use of the waterboard – they will confirm this – the interrogators at the site would have to come back in writing, explain why they thought the waterboard was necessary, it would be approved at headquarters. During the time the waterboard was used, which was only until mid-2003, it took the CIA director to approve the use. So it was a much more modern program. Now, the box – I mean, a box is not pleasant. First of all, there is – there was a big box authorized that the detainee could stand in and a smaller box. It wasn’t – it didn’t appear to me to be quite as small as what was depicted in the movie. But yes, there was a box technique. But again, the – I mean, when I – you know, everyone can look at this in a different way. I just had the impression from the scene that the guy was sort of, you know adlibbing as he went along, which was, believe me, far from the – far from the reality. [my emphasis]

The box — particularly the apparent portrayal (I haven’t yet seen the movie) that the torturer ad-libbed when he introduced the box — is as big a concern of Rizzo’s as waterboarding is.

Of course it is.

That’s because the coffin — later dubbed a small box to give it legal cover — used to conduct a mock burial with Abu Zubaydah is the at the heart of the legal problems with torture.

As these posts lay out (one, two, three, four), one of several main reasons CIA asked the Office of Legal Counsel for a memo authorizing torture is because Ali Soufan saw Abu Zubaydah’s torturers prepare to put Abu Zubaydah in a coffin (it’s unclear whether he or his partner Steve Gaudin saw them actually use the coffin). That is one of the things — perhaps the thing — that Soufan labeled “borderline torture.” And because an FBI officer had told CIA’s contractors he might need to prosecute them for what he had seen, CIA needed more durable legal cover than the daily approvals given by Alberto Gonzales every night.

Because an FBI officer had labeled the things approved by the White House, on the President’s authority, illegal.

Which is why John Rizzo and John Yoo started writing first the July 13, 2002 memo generally authorizing torture (this memo is what the CIA would ultimately rely on to claim things like the murder of Gul Rahman were legal) and then, several weeks later, the Bybee Memo laying out the approved torture techniques in detail.

John Rizzo tried to get John Yoo to approve the technique that had already been used on Abu Zubaydah, the one Ali Soufan had labeled illegal. He tried to get mock burial approved as a technique; he kept trying right up until the last days before the Bybee Memo was finalized. But for some reason — I suspect, because Michael Chertoff had already agreed with the FBI that the mock burial Ali Soufan complained about was illegal — it was not included in the final list.

Instead, John Yoo and Jay Bybee approved “small box confinement.” Something that, if everyone remained silent about the intent and desired effect of shoving someone in a coffin-shaped box and leading them to believe they’d be buried alive, would both retroactively approve the use of a coffin that Abu Zubadayh’s (and Ibn Sheikh al-Libi’s) torturers had already used, but also let them use mock burial in the future, in spite of the fact that John Yoo — even John Yoo — had deemed it illegal.

One of the main things an FBI officer judged illegal — mock burial, a technique that had already been used, on the authority of the President — is the only single torture technique John Yoo ever deemed illegal.

Again, I have not yet paid to see the CIA’s propaganda effort. But John Rizzo, at least — the man who tried so hard to get the OLC to approve mock burial — is very concerned both about the size of the box in question (the SERE document used to label it “small box confinement” prescribed size and time limits), but more importantly that torturer in the movie is depicted as using the coffin-shaped box without first getting approval for it.

The movie, it seems, shows a torturer using a coffin before John Yoo and John Rizzo would have deliberated for weeks and decided to call it small box confinement. The movie, it seems, shows a torturer using a coffin to conduct a mock burial [Update: I’ve been told they don’t do a burial in the movie, though it does depict adlib], and doing so in terms that make it clear that the coffin preceded the DOJ approval for it.

I’m extrapolating from Rizzo’s comments, but it seems likely that his problem with the box is that ZD30 depicts its use in precisely the terms that make it illegal, the one act of torture labeled illegal as it was happening, one of the main acts of torture the OLC memos were designed to provide legal cover for.

Frankly, I’m sympathetic to Rizzo’s complaint that this depiction of a torturer ad-libbing by using a coffin is inaccurate (though not to his claim that it was an OLC memo that limited the torture). After all, we know that the White House was responding to the torturers’ “Mother, May I” on a daily or near-daily basis.

We know that the White House was renewing its Gloves Come Off Memorandum of Notification approval for things like mock burial at each step of the process. So it’s not like the torturers executed a mock burial without approval.

The problem, however, is that they executed a mock burial with the President’s approval, weeks and months before the DOJ would deem that one torture technique illegal.

Jack Goldsmith, Open Source OLC Lawyer, to Obama: You’re Breaking the Law

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Eleven days ago, Senate Intelligence Committee member Ron Wyden sent a publicly released letter to John Brennan making two things clear:

  • The Administration has refused to tell grunt (that is, non-Gang of Four) members of the Senate Intelligence Committee whether its targeted killing program–extending even to the killing of US citizens–is authorized under Article II or AUMF power.
  • The Administration has refused to tell grunt members of the Senate Intelligence Committee which countries it uses “lethal counterterrorism authorities” in.

Nine days later, Jack Goldsmith, a man best known for going to some length to force a President to have credible legal justifications for his counterterrorism programs, wrote this column, offering his advice about “What to do about growing extra-AUMF threats?”

Mind you, Goldsmith is addressing the legal problem presented by (and explaining his column by pointing to) our fight against AQIM in North Africa and al-Nusra in Syria. He is not pointing–at least not explicitly–to the troubling revelations of Wyden’s letter.

But Goldsmith’s advice is directly relevant to the topics on which the Administration refuses to brief the grunt Senate Intelligence Committee members. Goldsmith warns that Article II power–on which it increasingly appears the Administration is relying–doesn’t extend as far as AUMF authority would.

One possibility is to rely on the president’s independent Article II power, which authorizes the president to use force, in the absence of congressional authorization, in defense of the nation. This approach faces at least three problems.  First, it is a fraught basis for action because the president must act without the overt support of Congress, which can later snipe at his decisions, or worse.  Relatedly, courts are more inclined to uphold presidential action supported by Congress.  Second, the scope of Article II targeting authorities is less certain than the scope of AUMF targeting authorities, and might be narrower. [my emphasis]

And Goldsmith describes the importance of telling Congress–and he’s talking about telling all of Congress, not just grunt Senate Intelligence Committee members–what groups are actually included among legal counterterrorism targets.

Congress could authorize the President to use force against specified terrorist groups in specified countries (or perhaps just against particular groups without specifying nations).  The Wall Street Journal recently reported that some in the administration are considering asking Congress for just such a statute to address Islamist terrorist threats in some North African countries.  This retail approach is in theory the best option because Congress defines the enemy, and because Congress stays in the loop politically and legally and must debate and approve any expansions of the conflict. The problem with the retail approach is that it is unclear whether Congress can or will, on a continuing basis, authorize force quickly or robustly enough to meet the ever-morphing threat.

Third, Congress could set forth general statutory criteria for presidential uses of force against new terrorist threats but require the executive branch, through an administrative process, to identify particular groups that are targetable.  One model here is the State Department’s “Foreign Terrorist Organization” designation process.  There are at least two problems with this approach.  First, it is unclear whether Congress may constitutionally delegate the war power in this fashion.  And second, it lessens congressional involvement and accountability as compared to the second approach. [my emphasis]

Now, let me be clear: Goldsmith never comes out and directly says that the Obama Administration is, currently, breaking the law (and he makes no comment on whether the Administration is violating National Security Act requirements on briefing Congress). And if he did, he’d probably couch it in language about needing the cover of Congressional sanction–more language about Congress “sniping, or worse.” Nevertheless, the clear implication if you take Wyden’s letter in conjunction with Goldsmith’s Office of Legal Counsel-type advice is that the Obama Administration is conducting counterterrorism ops without legal sanction.

But consider what it means that this solidly conservative lawyer is telling the Obama Administration the same thing he had to tell George Bush when the latter relied on John Yoo’s crappy legal advice.

This suggests that the administration will continue to rely as much as possible on an expansive interpretation of the AUMF and on Article II.  We will see if these authorities suffice to meet the threat.

When Jim Comey, in response Goldsmith’s advice, dramatically stood up to Andy Card and Alberto Gonzales’ bullying in a DC Intensive Care Unit, he did so to convey to them that an “expansive interpretation” of Article II power was not good enough (though according to Tom Daschle’s read of the AUMF discussions, Goldsmith replaced John Yoo’s expansive interpretation of Article II authority with an expansive interpretation of the AUMF).

Goldsmith’s advice, writing without the authority he once had as the confirmed OLC head, and lacking the leverage of an expiring wiretapping authorization or the imposing figure of a 6’8″ Acting Attorney General to deliver his message, may not carry the weight it once did.

But he is offering fundamentally the same warning he did 9 years ago.

Update: This post has been updated for clarity.

It’s Hard to Summarize Opinions Pertaining to Two Purportedly Unrelated Laws

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Steven Aftergood relays the explanation of a senior intelligence official as to why the intelligence community can’t release even a teensy little bit of the FISA Court’s classified opinions.

“We tried,” a senior intelligence agency official said, but the rulings were hard to declassify. After redacting classified operational information and other sensitive details, no intelligible text of any consequence remained, according to this official.

The Department of Justice made a similar assertion years ago in response to a lawsuit brought by the ACLU, stating that “Any legal discussion that may be contained in these materials would be inextricably intertwined with the operational details of the authorized surveillance.”

Aftergood’s source goes on to explain that they can’t just summarize the Court’s decisions, because … well, I don’t really understand this objection, but I suspect it has to do with some disagreement between the FISC and DOJ about the opinions that currently exist.

But the intelligence agency official said that unclassified summaries of surveillance court decisions were probably not a satisfactory alternative.  A summary written by the Department of Justice would not be a statement of the court’s opinion at all, the official said.  At best, it would represent the Administration’s own understanding of what the court had ruled, paraphrased for public release.

Aftergood holds out hope that a letter from Dianne Feinstein will provide sufficient independent direction to convince the Court to write their own summary.

Now, I’m interested in this for two reasons. First, consider what it means that the Administration and their complacent-overseer DiFi refused to let Jeff Merkley’s amendment–which would have called for summaries in some cases–pass. For starters, it would have shortened the time frame (two years have already passed since Lisa Monaco assured Senators she’d declassify opinions if only they confirmed her) it’d take to ask the Courts for a summary and get it. Additionally, it would have required the government admit if they could not, would not, declassify any teensy bit of the opinions on this secret law. That is, they’d have to finally admit there is secret law, which they’re denying right now.

I’m officially predicting that all this will be wrapped up a few short months after after the PATRIOT Act gets extended in 2015, forestalling the moment yet again when we confirm that the government is conducting massive surveillance on innocent Americans.

But then there’s the claim that they cannot summarize this themselves (suggesting, as I said, that there was no way DOJ could write a summary that the FISC would buy off on).

Frankly, I don’t buy that. Even John Yoo’s November 2, 2001 opinion authorizing the illegal wiretap program–a 21 page document redacted down to 183 words–communicates the main gist of the opinion:

FISA only provides a safe harbor for electronic surveillance and cannot restrict the President’s ability to engage in warrantless searches that protect the national security.

[snip]

FISA purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence.

[snip]

Such a reading of FISA would be an unconstitutional infringement on the President’s Article II authorities.

[snip\

Thus, unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area–which it has not–then the statute must be construed to avoid such a reading.

[snip]

…we do not believe that Congress may restrict the President’s inherent constitutional powers, which allow him to gather intelligence to defend the nation from direct attacks.

[snip]

…intelligence gathering in direct support of military operations does not trigger constitutional rights against illegal searches and seizures.

[snip]

A warrantless search can be constitutional “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

[snip]

…no governmental interest is more compelling than the security of the Nation.” Haig v. Agee. 453 US 280. 307 (1981)

Of course, in this case, the government is hiding the current interpretation of law. So rather than displaying the ugly shreds of our Constitution as it existed when Dick Cheney roamed the halls (though some of these opinions were written under the Bush Administration), the government is faced with revealing the ugly shreds of our Constitution as it exists. And 183 words, even in an opinion written by FISC, is probably sufficient to get some complacent people rather worried.

Then there’s the matter I noted the other day. In Merkley’s speech supporting his amendment, he focused on how Section 215 plays–apparently in conjunction with FAA (that’s why the government doesn’t want FAA debated at the same time as Section 215; because we might get “confused”)–particularly the passage that allows the government to get business records relevant to an investigation.

Let me show an example of a passage. Here is a passage about what information can be collected: “ ….. reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2),” and so on.

Let me stress these words: “relevant to an authorized investigation.”

There are ongoing investigations, multitude investigations about the conduct of individuals and groups around this planet, and one could make the argument that any information in the world helps frame an understanding of what these foreign groups are doing. So certainly there has been some FISA Court decision about what “relevant to an authorized investigation” means or what “tangible things” means. Is this a gateway that is thrown wide open to any level of spying on Americans or is it not? Is it tightly constrained in understanding what this balance of the fourth amendment is? We do not know the answer to that. We should be able to know.

As I noted, Merkley professes not to know whether the “relevant to” provision of Section 215 has been used to gut probable cause in a way far more thorough than even John Yoo accomplished. But most of the co-sponsors of his Amendment do know.

And while I still think you’d be able to summarize even that, if the thing they’re trying to hide is that Section 215 has been grafted onto FAA so as to permit the government to access any tangible thing from anyone for whatever shoddy reason the government invents, I do get why it’d be hard to summarize that and still hide the fact that that’s what is now going on.

I guess they think it’d be confusing for us if their claims that there isn’t a massive program of government surveillance were proven to be utterly false.

Dick Durbin: The Targeted Killing Memo Is Like the Torture and Illegal Wiretap Memos

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It took transcribing the debate in the July 19 Senate Judiciary Committee hearing for me to realize it, but Democrats are running very serious interference to keep the Anwar al-Awlaki targeted killing memo secret. Not only did Dianne Feinstein basically roll John Cornyn, telling him she’d introduce language that would accomplish his goal of getting all the oversight committees the memo when, if hers passes, it will only, maybe, get the Intelligence Committee the memo.  Not only did the Democrats vote on a party line vote to table John Cornyn’s amendment to require the Administration to share it–in classified or unclassified form–with the Judiciary and Armed Services Committees. Not only did Pat Leahy get pretty snippy with Cornyn for offering–and asking to speak on–the Amendment.

Most stunning, though, is Dick Durbin’s comment on it.

Durbin: Thank you Mr. Chairman. My staff briefed me of this on the way in, and I asked the basic question, “would I ask this of a Republican President? Of course. And I did ask it, in a different context, of the previous President, when it came to questions of interrogation, torture, and surveillance. I might say to the Senator from Texas I had no support from the other side of the table when I made that request. But I do believe it is a valid inquiry and I would join the Senator from Texas and any who wish in sending a letter to the Attorney General asking for this specific information on a bipartisan basis. And certainly we can raise it the next time the Attorney General appears before us. I do have to say that I’m going to vote to table because I think that as flawed as this [the FAA extension] may be without the Lee Amendment which I think would help it, I do believe we need to pass this and  bringing in these other matters are going to jeopardize it. But I think it is a legitimate question to be asked of Presidents of either party, and I will join you in a letter to this President and his Attorney General for that purpose. [my emphasis]

This partisan retort (one Leahy repeated) says, in part, that the Democrats aren’t going to cooperate with Cornyn’s effort to get the memo because Cornyn didn’t cooperate with Durbin’s efforts to get the torture and illegal wiretap memos. Durbin and Leahy are right: Cornyn and the rest of the Republican party did obstruct their efforts.

That doesn’t make obstructing Cornyn’s effort right, of course, particularly given that Durbin purports to support Cornyn’s intent.

But remember, Republicans obstructed the release of the torture and illegal wiretap memos because, well, they showed the Executive had broken the law. When we all got to see the torture memos, they made it clear CIA had lied to DOJ to get authorization for torture, had exceeded the authorizations given to them, had engaged in previously unimagined amounts of torture, and had ignored legal precedent to justify it all.

And while we’ve only ever seen part of Jack Goldsmith’s illegal wiretap memo (after the Bush Administration purportedly fixed the data mining and other illegal problems with it) and a teeny fragment of an earlier John Yoo memo, those showed that Yoo relied on gutting the Fourth Amendment, there is an additional secret memo on information sharing, they were hiding their flouting of the exclusivity provision, and–possibly–the illegal wiretap program violated an earlier decision from the FISA Court of Review. We also learned, through some Sheldon Whitehouse persistence, that these memos revealed the President had been pixie dusting Executive Orders and claiming the right to interpret the law for the Executive Branch.

The Republicans had good reason to want to help Bush bury these memos, because they showed breathtaking efforts on the part of the Bush Administration to evade the law.

And that’s the fight that Dick Durbin analogized this one to.

“Killing Is a Part of War, and Torture Isn’t”

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I wasn’t crazy about the way that Tom Junod framed his first piece on Obama’s Lethal Presidency; but it’s getting a lot of people to think about the issues, so while I didn’t comment on it I was happy to have it.

But I am rather interested in where the debate has gone, now that Andrew Sullivan got involved. At issue is whether Obama’s targeted killing–done because, having made detention an unpalatable option (except in the giant black hole of Bagram), it’s all that left–is morally better or worse than torture.

Sully says it’s much better, Junod says it’s not much different. But both make an assumption that gets to one heart of the issue.

Yes, killing is a part of war, and torture isn’t. But what if the the kind of militant who was captured and tortured under Bush is the kind of militant who is simply being killed under President Obama?

Torture is not a part of war? Then why do we put our servicemen and women through SERE training to make sure they’ll be able to withstand torture if we don’t expect, based on historical experience, that they might be subjected to it?

Torture is illegal. But it is, very much, a part of war (and sometimes power generally, as Ayman al-Zawahiri learned in Nasser’s Egypt). Intentionally targeting civilians is also illegal, but part of war. Given that we now seem to be defining “civilian” more narrowly than international law does, we can’t very easily distinguish between torture and killing in this way.

The point is important because this debate is actually talking about at least four different things: reality, morality, legality, and efficacy. The legal argument doesn’t get you very far in this debate, because it puts you on John Yoo’s ground of proclaiming, correctly, that our adversaries don’t abide by international law–they’ve clearly both tortured and killed civilians–and that therefore, incorrectly IMO, we can and should invent new categories to cover both them and their detention.

But the question of morality is equally slippery, as it allows Sully this squishy defense of Obama.

First and foremost, there is an end to the torture program. For many of us, that was the first non-negotiable deal-breaker from the Bush administration. To bungle two wars, as Bush and Cheney did, is one thing. To throw away the invaluable tradition of decency in wartime was unforgivable. Torture is not, as Bunch would have it, a “difficult issue”. It is an easy one. We don’t do it or condone it and we bring to justice anyone caught doing it. Obama’s failing is in the latter part – but it pales in comparison with Cheney’s lawless barbarism. And the end of torture has immensely improved intelligence and brought some moral credibility back to the West. Are some terror suspects being treated horribly in allied countries? There’s much evidence that this is true. And the Obama administration should be extremely careful not to exploit or use any intelligence garnered from torture or abuse. But there is an obvious difference between the injustices perpetrated by regimes in developing countries and the standards we set for ourselves.

For Sully, this is about civilization and barbarism, which comes packed with unexamined assumptions.

This might be an interesting time to note how, within al Qaeda and its affiliates, a similar debate is and has long gone on. Not only have we seen debates about when Islamic law allows the killing of civilians, both non-Muslim and Muslim. We’ve seen Osama bin Laden’s recognition that killing Muslim civilians–and fighting the battle against the US on Muslim grounds–ruined the brand of his movement. But we’ve also seen, in al Qaeda’s now apparently failed attempt to rebrand as Ansar al-Sharia, al Qaeda also trying to “win” the “war” by providing services, by turning on the electricity.

Read more →

John Roberts Fails to Dictate Another Presidential Outcome, John Yoo Cries

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In this post, I suggested the reason Republicans are so angry that John Roberts apparently flipped his vote (note, Barton Gellman reminded today that Ramesh Ponnuru said at Princeton reunion this year that Roberts had flipped before June 1) because they expected the conservative Justices to influence this year’s election.

Funny. In his rant declaring John Roberts the next David Souter, John Yoo has this to say:

Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius’s limits on the Commerce Clause and expand the taxing power even further. After the Hughes court switch, FDR replaced retiring Justices with a pro-New Deal majority, and the court upheld any and all expansions of federal power over the economy and society. The court did not overturn a piece of legislation under the Commerce Clause for 60 years.

Mind you, he doesn’t rule out a Republican (he doesn’t name Mitt directly) getting elected. But he does see this in terms of the election, it seems.

But that’s not the most interesting passage in Yoo’s rant. This was:

Justice Roberts too may have sacrificed the Constitution’s last remaining limits on federal power for very little—a little peace and quiet from attacks during a presidential election year.

The … last … remaining … limits … on … Federal … power.

Yep. John Yoo said that.

Black Holes and Mock Burial

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The other day, I posted on black holes in Bagram and Somalia. This important story, describes the plight of Tanzanian fisherman Suleiman Abdallah, who was kidnapped and sold for bounty in Mogadishu then rendered to three different American prisons, ultimately to Bagram, before he was freed five years later.

In addition to the portraying yet another innocent disappeared into our prison system, the story provides a few important details.

In fact, Suleiman was thousands of kilometers from his familiar Indian Ocean reefs, in an underground prison in central Afghanistan.

“It was pitch black, with constant noise and not enough food,” he recalled. His American interrogators would pour freezing cold water on him and beat him, saying, “We know you are a sea man, but here we have more water than out there in the sea. It never stops raining here.” Suleiman also describes being hung from the ceiling in the “strappado position,” slung in chains so that his toes just touched the floor. He also says American interrogators would take the ablution jug (used by Muslims for ritual cleansing before prayer), and stick its long spout up his rectum.

[snip]

The litany of abuses described by Suleiman included severe beatings, prolonged solitary confinement, forced nakedness and humiliation, sexual assault, being locked naked in a coffin and forced to lie on a wet mat, naked and handcuffed, and then rolled up like a corpse. It was extremely tough. There were times when both of us clinicians, and the patient, broke down in tears.” [my emphasis]

While Clare Gutteridge doesn’t say it, the underground prison in Afghanistan sounds like the Salt Pit (Cage Prisoners says it was a different prison, but that he was then transferred to the Salt Pit). He was transferred to the relatively better Bagram in mid-2003.

In any case, that means the prisons in Afghanistan were using dousing after it may have contributed to Gul Rahman’s death the previous year, and after the CIA IG investigation into torture started.

Then there’s the mock burial–the only treatment John Yoo ever deemed torture. While Abdallah’s torturers might call the coffin “small box confinement,” between that and the funeral shroud, the intent of the treatment seems fairly clear.

And remember: top Bush officials had reason to know this treatment would elicit false confessions. It sounds like CIA and FBI interrogators learned fairly early on Abdallah was not who they had thought he was (they originally believed he had a role in the 1998 Embassy bombings).

Were we using the methods that even John Yoo found to be illegal to invent some justification for kidnapping Abdallah?

What You Learn at Yale

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For the record, I have far less problem with Stan McChrystal teaching a course on leadership at Yale than John Yoo teaching law at Berkeley or Doug Feith teaching anything anywhere.

But I am rather amused by the effort on the part of the students who took McChrystal’s class to defend him against charges that his class policies stymie academic freedom.

Here’s the core of their defense:

Non-attribution is the standard practice [at Yale] when sensitive topics are going to be discussed by responsible officials.

So the arguments Stephen Walt and Gian Gentile made about McChrystal? Aside from the detail of whether students had to sign a piece of paper, the arguments all appear to be true, to the extent that Yale told students to treat the class with non-attribution.

But that fact is apparently true for Yale generally, not just for Stan McChrystal.

Stan McChrystal sure seems to have taught these students at least one of the values they say he emphasizes in the class: loyalty. Though I question what lesson they’re learning about another characteristic he emphasizes, integrity.

In any case, their education more generally is teaching them that all “responsible” officials should be treated in such a way that those officials cannot be held accountable. Not only does it make these students unsuited for much of public service–to say nothing of journalism (at least one of the students is a photojournalist). But it really makes them unsuited to be citizens.

The Padilla v. Yoo Decision Will Not Put Chong’s Claim Up In Smoke

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There has already been a lot of very good commentary across the internets and media on the notable decision in the 9th Circuit this week in the case of Jose Padilla v. John Yoo. Although many, if not most, commenters seem outraged, the decision is, sadly, both predictable and expected. I also think Marcy had about the right, and appropriately snarky, take on the decision embodied in her post title “Jay Bybee’s Colleagues Say OLC Lawyers Couldn’t Know that Torture Was Torture in 2001-2003“. Yep, that is just about right.

As to the merits, Jonathan Hafetz, in a very tight post at Balkinization, hits every note I would urge is appropriate, and does so better than I probably could hope to. Go read Jonathan. Above and beyond that, I think Steve Vladeck’s analysis is spot on:

In other words, (1) it wasn’t clear from 2001-03 that CIDT “shocks the conscience”; (2) Padilla’s mistreatment was not as severe as prior cases in which courts had recognized a torture claim; (3) it therefore wasn’t clear whether Padilla’s mistreatment was torture or CIDT; (4) it therefore wasn’t clear that Padilla’s mistreatment “shocks the conscience.”

Thus, the panel’s approach is basically that the mistreatment here falls between conduct that prior courts (including the Ninth Circuit) had held to be torture and conduct that prior courts had held to be merely CIDT. Because Padilla’s mistreatment was less severe than prior examples of torture, and more severe than prior examples of CIDT, it’s just not “clear” on which side of the torture/CIDT line Padilla’s mistreatment falls… Of course, the fact that A > B > C proves nothing about where B is. And under Hope v. Pelzer, the question in qualified immunity cases is not whether the plaintiff can prove that the defendant’s conduct was at least as bad as something already acknowledged to be unlawful. As Justice Stevens explained, it isn’t the case that “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.” Instead, “in the light of pre-existing law[,] the unlawfulness must be apparent.”

Perhaps the panel would have reached the same result had they not skipped these steps. But to my mind, these are fairly significant omissions…

Wheeler, Hafetz and Vladeck are all correct about the infirmities in the 9th Circuit’s version of Padilla (without even getting to the 4th Circuit’s version of Padilla, contained in Padilla/Lebron v. Rumsfeld).

At this point, arguing over key governmental personnel accountability, or lack thereof, is pretty Read more →

Jay Bybee’s Colleagues Say OLC Lawyers Couldn’t Know that Torture Was Torture in 2001-2003

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The 9th Circuit has overturned a District court ruling holding that Jose Padilla could sue John Yoo for the torture and illegal detention that Yoo’s OLC work authorized.

While the decision sucks, I’m not so surprised by it, even coming from the purportedly hippie 9th Circuit.

In fact, I’m particularly interested in the way the opinion applies the Ashcroft v. Al Kidd standard about whether the conduct alleged–now obviously recognized to be illegal–was considered as such “beyond debate” at the time of that conduct.

We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district court.

As we explain below, we reach this conclusion for two reasons. First, although during Yoo’s tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not “beyond debate” at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

The circuit, in other words, argued that a poor little OLC lawyer serving in the 2001 to 2003 time frame might genuinely consider the treatment that Padilla received to be legal at the time.

And remember, a number of the memos cited in the complaint were signed by then OLC head, now 9th Circuit Judge Jay Bybee.

  • A January 22, 2002 memorandum to Gonzales signed by then-Assistant Attorney General Jay Bybee but allegedly drafted by Yoo on the Application of Treaties and Laws to al Qaeda and Taliban Detainees.
  • A February 26, 2002 memorandum to Haynes signed by Bybee but allegedly created by Yoo on Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan.

[snip]

  • An August 1, 2002 memorandum to Gonzales, again signed by Bybee but allegedly created by Yoo, on Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A, concluding that an interrogation technique must cause damage that rises “to the level of death, organ failure, or the permanent impairment of a significant body function” in order to be considered torture.
  • A second memorandum produced during August 2002 addressing the legality of particular interrogation techniques that the CIA wished to employ.

Oh good. We don’t have to question the competence of anyone on the 9th Circuit now, given that the 9th Circuit has judged that it was not beyond debate that Inquisition torture methods were torture when now-9th Circuit judges were signing off on claims they weren’t.