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The Legal Principles Document and OLC’s Leaky SCIF

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Sorry to get so deep in the weeds on the missing OLC documents, but I wanted to show why this matters, using the example of the Legal Principles (AKA the Bullet Points) documents. As I’ll show below, one of the most sensitive documents involved in the controversy between CIA and OLC on the Legal Principles is one of the documents over which there are discrepancies between the  Vaughn Indices and the actual document.

I explained the Legal Principles document in detail in this post, but here’s the short version. When CIA started the Inspector General investigation, it had a meeting with DOJ people including Michael Chertoff and then a phone conversation with John Yoo. Both times, DOJ told CIA that it (DOJ) would hold off on any criminal investigations or prosecutions until CIA’s IG first collected information and then presented that along with the legal guidelines CIA had been working under. DOJ basically told CIA, “You tell us if you broke the law.” So CIA got together with John Yoo (though he denies being involved) and Jennifer Koester, who were both apparently free-lancing with no official OLC involvement, and developed a document–alternately called the Legal Principles or the Bullet Points document. The document interpreted the law and previously OLC opinions as the CIA would like them to be to make sure as much of the torture as possible was “legal.”

When Koester and Yoo moved on in May 2003, CIA tried to dump the document as a finished fait accompli back onto OLC. Even though Patrick Philbin, picking up Yoo’s duties, immediately refused to recognize the document as OLC work product, CIA kept insisting it counted as an OLC document. They did so in a high level meeting at the White House in June and then ultimately made it into a slide for a meeting with the NSC Principals on July 29, 2003, at which the Principals bought off on the torture as it had been applied. Then, CIA submitted the document with a late draft of the IG Report in March 2004, which (Jack Goldsmith claims, though the CIA claims differently) was the first time Goldsmith saw the Legal Principles. A bit of a spat broke out which not only prevented CIA and OLC from submitting joint comments on the IG Report (and, presumably, the legality of the acts described therein) as they had intended to do, but also in Goldsmith writing grumpy follow-up letters to CIA on it. And all of this was right before Goldsmith withdrew the Bybee One memo.

As you can see, the Legal Principles document were not only a source of tension between CIA and OLC. But its lies at the core of interpretations of just how illegal the CIA program was.

Which is why I find it relevant that the various iterations of the Legal Principles document are some of the documents that seem to have been affected by OLC’s leaky SCIF.

Read more →

OLC Identified 31 Missing Documents During Period Leading Up to Torture Tape Investigation

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As I reported on Monday, DOJ lost not only John Yoo and Patrick Philbin’s emails from the period when they were writing the Bybee Memos. It also lost at least 10 documents on torture, a number of them that went into the development of the torture memos.

We first learned these documents had disappeared from a declaration that David Barron, Acting head of OLC, submitted in response to an ACLU FOIA last September. In it, he described the six month effort OLC made last year to recreate the original Vaughn document first created in 2005. With a lot of searching last year, OLC was able to identify 171 documents that might be the documents referenced in the original Vaughn Index.

But OLC appears to have first discovered the problem before last year. Barron’s declaration describes one OLC lawyer attempting–but failing–to identify all the documents in the Vaughn index during late December 2007 or early January 2008. At that time, the OLC lawyer was only able to identify 150 of the 181 documents listed in the Vaughn index.

On at least one occasion in late 2007 or early 2008, when the documents were recalled by OLC from OPR for purposes of another matter, an OLC attorney made significant efforts to recompile the 181 documents listed on the original Vaughn index based on the descriptions of the documents in that index. The attorney made tentative identifications of approximately 150 of the 181 documents and marked the original documents with pencil numbers corresponding to the Vaughn index in the lower left-hand corner of each of those 150 documents.

It’s likely, but not certain, that these documents were recalled as part of DOJ’s review of whether it should criminally investigate the torture tape destruction (news of the tape destruction broke December 6 and Mukasey announced the investigation on January 2). And whether or not that’s why they recalled these documents, the OLC lawyer who tried to recreate the Vaughn index had to have been aware that CIA had destroyed evidence of its torture program.

And yet, according to Barron’s declaration, no one made any attempt to look for the 31 documents that OLC lawyer had not been able to find for more than another year.

That’s a remarkably lax attitude regarding documents potentially disappearing from a SCIF.

The Inherent Conflict Of Interest With DOJ's OPR And David Margolis

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Who watches the watchers? Always a valid question; today I want to look at the DOJ Office of Professional Responsibility and its conduct in the investigation of United States governmental attorneys, specifically within the Office of Legal Counsel, involved in the Bush/Cheney torture program. Aside from the facts and conclusions (discussion underway here, here and here), the report is notable for the process producing it, namely the DOJ investigating itself and, not so shockingly, exculpating itself. This will be the first in a series of more specific posts on this blog discussing the multiple, and severe, conflict of interest issues inherent in the OPR Report.

The first, and most obvious, issue of conflict with OPR is that it places evaluation and resolution of ethical complaints against DOJ attorneys in the hands of the DOJ. The power to determine whether there is any impropriety is solely within the hands of those supervising and/or ultimately responsible for the impropriety. Pursuant to 28 C.F.R. § 0.39a, OPR reports directly to the Attorney General and Deputy Attorney General. A vested interest if there ever was one.

Most governmental agencies have independent Inspectors General which operate independently of the agency leadership, have jurisdiction of the entire agency including legal counsel, and thus have credibility as somewhat neutral and detached evaluators and voices. Not so the DOJ, who has arrogated upon themselves the sole right to sit in judgment of themselves. This action to grab the exclusive authority for themselves and exclude the independent IG was first accomplished by Attorney General Order 1931-94 dated November 8, 1994 subsequently codified into the Code of Federal Regulations and reinforced through section 308 of the 2002 Department of Justice Reauthorization Act. Just in time for the war on terror legal shenanigans!

Glenn Fine, the DOJ IG has given Congressional testimony to the US Senate regarding the inherent conflict:

Second, the current limitation on the DOJ OIG’s jurisdiction prevents the OIG – which by statute operates independent of the agency – from investigating an entire class of misconduct allegations involving DOJ attorneys’ actions, and instead assigns this responsibility to OPR, which is not statutorily independent and reports directly to the Attorney General and the Deputy Attorney General. In effect, the limitation on the OIG’s jurisdiction creates a conflict of interest and contravenes the rationale for establishing independent Inspectors General throughout the government. It also permits an Attorney General to assign an investigation that raises questions about his conduct or the conduct of his senior staff to OPR, an entity that reports to and is supervised by the Attorney General and Deputy Attorney General and that lacks the insulation and independence guaranteed by the IG Act.

This concern is not merely hypothetical. Recently, the Attorney General directed Read more →

Obama Had 60 Votes For Dawn Johnsen's Confirmation Last Year; Johnsen Stalled Again This Year

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3855The Obama Administration’s confounding unwillingness and/or inability to move the nomination of Dawn Johnsen as head of OLC has manifested itself yet again. The renomination of Johnsen was set to be voted out of the Senate Judiciary Committee Thursday, but somehow they just “ran out of time” before they could get to it, even though they found time to muse about a couple of far less significant district court judges and other lesser nominees.* It is a continuing and puzzling pattern of delay and diversion that has kept Dawn Johnsen’s nomination in limbo for better than a year.

I previously wrote about the failure of the Obama Administration to support the Dawn Johnsen nomination, a far less than good faith effort that finally resulted in Johnsen’s nomination being killed by operation of Senate Rule XXXI when they adjourned on Christmas Eve, December 24, 2009. It turns out what I wrote has been borne out and, as lawyers are wont to say, proved up pretty well.

As I will detail below, there is now crystal clear evidence that Barack Obama and Harry Reid had the sixty (60) votes for cloture on the confirmation of Dawn Johnsen all along last year, at least subsequent to July 7, the day Senator Al Franken was sworn in, and despite that fact refused to call a vote and get Johnsen installed in her critical post at OLC. Here is what I wrote immediately following the Christmas Eve death of her nomination:

Moreover, the bleating by Harry Reid and the Obama Administration that it is all the fault of mean old Republican obstructionism simply does not hold water. The Democrats hold a 60 seat caucus block, sufficient to overcome Republican obstruction. Of those, the Main Justice article is quite clear there were only two Democratic problem children, former Republican Arlen Specter and the ever whiny Ben Nelson, who never passes up an opportunity to betray his party. That means there were potentially only 58 Democratic votes for Johnsen’s nomination. But Republican Richard Lugar firmly supported Dawn Johnsen, so that makes 59 votes, only one shy of confirmation.

In addition to Lugar, both Republican Senators from Maine, Susan Collins and Olympia Snowe, have refused to rule out voting for Johnsen and were being lobbied hard by extremely influential women’s groups and liberal constituents. Both Collins and Snowe have a history of agreeing, when pressured, to allow up or down votes on Presidential nominees, even from Democrats.

Barack Obama and Rahm Emanuel had 59 votes in favor of Dawn Johnsen’s nomination, a distinct possibility of picking up Collins, Snowe or both, and are more than aware Arlen Specter needs big help in his reelection campaign in Pennsylvania and that Ben Nelson can always be bought. And despite all of the above, the Obama White House did not ever request Harry Reid to call a vote. The only rational conclusion from this is the Obama White House did not want Dawn Johnsen, their own nominee, to be confirmed.

My calculations on the 60 votes being available were confirmed upon Obama re-nominating Johnsen when it was immediately announced to much ballyhoo that Arlen Specter would be the 60th vote for cloture on the re-nomination; albeit apparently only after Johnsen has been again dragged through the committee process and other vagaries of prolonged confirmation procedure. The TPM report of Specter’s intention to support Johnsen’s confirmation confirms exactly what I stated, Specter was the 60th vote (there were always 58 Dems plus Richard Lugar) and was there all along; all Obama and Harry Reid had to do was call the vote. Read more →

Out of Scope: The DOJ IG Report

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I’ve just now finished reading the conclusion of the Department of Justice Inspector General’s report on torture. I gotta say, I’m not surprised Alice Fisher chose this week to quit, nor am I surprised that Gitmo’s Convening Authority decided not to charge al-Qahtani, as both Fisher and Qahtani figure prominently in the report.

The other general comment I have about the report is about its scope: it was designed to protect the Administration and its method of legalizing torture. For example, the report notes:

We did not examine issues related to DOJ Office of Legal Counsel opinions concerning the legality of several interrogation techniques the CIA sought to use on certain high value detainees. While senior FBI and DOJ officials were aware of these opinions, an assessment of the validity of the OLC legal opinions was beyond the scope of this review.

Similarly, the IG report apparently did not review what happened to complaints about torture once they got to Bush’s top aides (though the report doesn’t actually say whether this was because of a scope issue or because Bush’s aides refused to cooperate).

On a broader level, we were unable to determine definitively whether the concerns of the FBI and DOJ about DOD interrogation techniques were ever addressed by any of the structures created for resolving inter-agency disputes about antiterrorism issues. These structures included the Policy Coordinating Committee, the "Principals" Committee, and the "Deputies" Committee, all chaired by the National Security Council (NSC). Several senior DOJ Criminal Division officials also told us that they raised concerns about particular DOD detainee practices in 2003 with the National Security Council, but they did not recall learning that any changes were made at GTMO as a result. Several witnesses told us that they believed that Attorney General Ashcroft spoke with the NSC or the DOD about these concerns, but former Attorney General Ashcroft declined our request for an interview in connection with this report.

Of course, there is no Inspector General function for the NSC–it’s one big executive privilege black hole in which complaints about torture can be buried. Make no mistake, though, the implication is that Condi Rice, Stephen Hadley, Dick Cheney, and Rummy did nothing apparent to resolve the inter-Agency tensions about torture.

But John Ashcroft? Refusing to meet with DOJ’s own Inspector General to talk about torture? Read more →

How DOJ Put Off Confessing To Their Pixie Dust

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After folks noted this footnote from Steven Aftergood’s request that the Office of Professional Responsibility look into the Pixie Dust* surrounding Executive Order 13292 and Dick Cheney’s claims to be a Fourth Branch…

2 A copy of the OLC letter is attached, and may also be found online here: http://www.fas.org/sgp/isoo/olc072007.pdf . The July 20, 2007 letter did not become public until December 11, 2007 when it was published by Marcy Wheeler on her blog Empty Wheel (http://emptywheel.firedoglake.com). One day later, the document was released to me under the Freedom of Information Act by OLC.

…we got into a discussion of the chronology behind OLC’s rather remarkable timing in their response to Aftergood. So I asked Aftergood for some clarification. This is what he said regarding the OLC’s insta-FOIA response on December 12:

You published the doc on December 11, and I followed with this later that day.

http://www.fas.org/blog/secrecy/2007/12/vice_presidents_office_is_not.html

OLC finally responded to my FOIA request by letter dated December 12. They never denied my request, but they certainly took their sweet time.

So apparently OLC noticed that Aftergood already had the document, so they finally decided they could give it to him. Nice to see they respect the FOIA process so thoroughly.

But I’m at least as interested in what went on before that. Aftergood explains: Read more →

Steven Aftergood Takes on Pixie Dust

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Oh this ought to be fun.

You’ll recall that when I was in my week-long Pixie Dust* tizzie last year, I was the first to reveal the purported resolution of Cheney’s Fourth Branch stand-off with Bill Leonard and Henry Waxman.

Finally, when Bill Leonard of ISOO appealed to DOJ for a ruling on Cheney’s refusal to submit to the plain text meaning of Bush’s EO, he was told (six months later) that the EO had turned to Pixie Dust. Specifically, he was told four years after the fact that President Bush did not intend for OVP to be an agency under the EO.

On July 12, 2007, the Counsel to the President wrote a letter to Congress stating that "[t]he President has asked me to confirm to you that … the Office of the Vice President … is not an ‘agency’ for purposes of the Order." … That statement on behalf of the President resolves the question you presented to the Attorney General. Therefore, the Department of Justice will not be providing an opinion addressing this question.

Poof! Four years after Cheney stopped reporting his classification activities, three years after NA tried to do the original inspection, Bush got around to telling Bill Leonard that the plain text of the EO doesn’t mean what it appears to mean. And Bush only told Leonard that news via Fred Fielding via Sam Brownback via Steven Bradbury. It took Congress threatening to withdraw funding from OVP before the President decided to tell the guy whose job it is that the EO at the center of his mandate doesn’t mean what it appears to mean–and what he has understood it to mean for all the years he has done the job.

But Steven Aftergood isn’t satisfied with that resolution. In particular, he’s not happy with Steven Bradbury’s snotty refusal to provide a ruling on the underlying conflict, as is mandated by the Executive Order (unless, of course, that, too, has been turned to Pixie Dust).

Attorneys at the Justice Department Office of Legal Counsel violated the executive order on classification and damaged oversight of the secrecy system last year when they refused to process a request from the Information Security Oversight Office for an interpretation of the order, according to a complaint filed yesterday (pdf) by the Federation of American Scientists Project on Government Secrecy.

Last January, J.William Leonard, the Director of the Information Security Oversight Office (ISOO), wrote to the Attorney General seeking an opinion on the applicability of classification oversight requirements to the Office of the Vice President after that Office ceased to cooperate with ISOO oversight.

But in July, Steven G. Bradbury of the Office of Legal Counsel wrote back that the Justice Department "will not be providing an opinion addressing this question."

By refusing to provide an opinion, Mr. Bradbury appears to have violated the President’s executive order, which requires that "the Attorney General… shall render an interpretation" of any disputed matter when requested by ISOO. A response is not optional, and yet no response was provided. Read more →