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Are Bradbury’s Two 2006 OLC Opinions Still Active?

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Help me do the math on this for a second.

On April 15, 2009 (just one day before the release of them), OLC withdrew the August 1, 2002 Bybee Two memo, the May 10, 2005 Techniques memo, the May 10, 2005 Combined memo, and the May 30, 2005 CAT memo. 

On April 21, 2009, Spencer reported on the July 20, 2007 memo authorizing dietary manipulation, sleep deprivation, and four coercive techniques; SSCI reported on it officially the next day, April 22.

That memo was withdrawn on June 11, 2009.

But unless I’m mistaken, Bradbury’s two memos from August 31, 2006 remain in place (one, two). These memos authorize six conditions of confinement: blocking detainee vision, isolation, white noise, 24-hour light, shackling, and forced shaving.

While several of those are used in domestic prisons, the others–and the techniques used in combination–seem pretty transparently designed to achieve the kind of disorientation achieved by sensory deprivation even while claiming not to be doing so. The techniques, used in combination, could easily be sleep deprivation and/or stress positions in disguise. The memos claim to need these techniques precisely because these detainees are not held in real prisons, which they could be, if the CIA were not so secretive with its program. Moreover, the memos appear to be bound by the same pained logic as Bradbury’s earlier memos and indeed relys on some of the same propaganda documents in their logic. If we’re going to authorize shackles and isolation, let’s do it with a sincere concern for safety and security, not one used to pretty up a coercive philosophy that remains in place.

By all means keep these detainees in secure facilities. But let’s do so without retaining the twisted logic of the Bush Administration.

The CIA IG Report on the Inefficacy of Torture

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Much of the focus on the now-delayed but upcoming release of the CIA IG Report on torture has been on whether the six page section on "Effectiveness"–the section that most challenges Dick Cheney’s claims–would be released.

What people seem to be oblivious to, however, is that much of this section has already been released–in two of the Bradbury Memos declassified in April. I first reported on the IG Report’s comments about efficacy here and a week later, McClatchy did effectively the same report. I’ve replicated the section describing the page-by-page contents, as revealed by the Bradbury memos, below. But here’s basically what the IG Report appears to have concluded about torture’s inefficacy.

  • It could not be conclusively determined whether or not torture had prevented any attacks
  • There is limited data on whether torture is effective or not
  • Torture leads to an increased number of intelligence reports–it’s not clear whether the IG Report comments on the quality of those reports
  • But you can’t learn everything form one detainee–even someone like Khalid Sheikh Mohammed; the information from more minor figures is important to challenge High Value Detainees
  • The CIA waterboarded Abu Zubaydah and KSM a whole bunch of times

Note that last bullet: the report on the sheer number of times AZ and KSM were waterboarded shows up in the section on efficacy–suggesting that the number itself says something about the inefficacy of the technique.

So that’s it–that’s much what the Effectiveness section will show. And given the stinginess of the CIA of late, I expect we might just get exactly what was revealed in the Bradbury memos, and nothing more, once the IG Report is actually released.

I’m actually more interested in some other sections of the IG Report–which we also know of thanks to Steven Bradbury. But I’ll explain those in a follow-up post.

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CIA Now Reviewing OPR Report on Yoo, Bybee, and Bradbury

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Sheldon Whitehouse revealed raised during today’s Department of Justice oversight hearing that the CIA is now reviewing the results of the Office of Professional Responsibility report on John Yoo, Jay Bybee, and Steven Bradbury’s role in authorizing torture.

Whitehouse: CIA was given a opportunity for substantive comment and classification review. Is it now the CIA that is holding up the release of the report?

Eric Holder claimed that the CIA’s review was not holding up the report. But when asked whether or not DOJ was ensuring that those at CIA reviewing the document had clean hands on torture, Holder twice did not answer, and ultimately said he wasn’t worried whether those involved in torture get to make substantive comment on the OPR report.

Whitehouse: Role of CIA in substantive comment and in classification review, interesting conflicts of interest. What assurances from CIA that those who seek to influence OPR report through substantive comment or those who have effect of delaying report are not complicit or involved in underlying conduct. Have you got a clean scrub of those at CIA who are involved in program?

Holder: As complete a report as we can. Declassify as much as we can. Full feeling of what it is that OLC lawyers dealt with. Pushing to declassify as much as we can. 

Whitehouse: Doesnt’ address question of whatever assurances from CIA that in discharge of review role the people involved in that had clean hands WRT this program and are giving untainted advice.

Holder: We haven’t gotten anything yet. This may not be an issue at all.  Will interact with Panetta. Want to have as much declassified as possible.

Whitehouse: And on question of substantive comments? Is it not important that CIA should be doing so in manner that keeps agencies hands clean.

Holder: I’m actually less worried about substantive comments.

Whitehouse: Would they be likely to look at substantive comments differently if CIA had not kept report from people with clean hands.

Holder: Fact-driven. Conclusion that one draws from the facts, Justice Department’s view of facts that we have uncovered.

In other words, no, Holder doesn’t find it problematic that someone like John Rizzo–who remains the Acting General Counsel at CIA and who made apparently false declarations to OLC in 2002 when it first approved torture–gets a chance to review the OPR report.

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Hassan Ghul, Mystery Detainee 2, and the Three Bradbury Memos

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Update, March 12, 2015: We know from the Senate Torture Report that the Techniques memo was about Janat Gul, not Hassan Ghul. 

Since the Comey emails have come out, I’ve been trying to puzzle through why the Bush Administration issued three memos in May 2005–Techniques, Combined, and CAT–rather than just one or two. I guess I sort of understand doing a separate memo on whether the torture program complies with the Convention Against Torture, since that was largely written to placate Congress and ought to have (but did not) involve a more sensitive analysis. But since all the techniques are used in combination, why not join the analysis of Techniques and Combined?

This is to an extent a wildarsed guess. But I think they did three memos to hide the analysis and authorization of a particular detainee’s treatment. And I think that detainee was waterboarded.

Two Detainees

It has long been established that Hassan Ghul is discussed in these memos. Dafna Linzer reported on it the day the memos came out (and someone here MadDog also noted it about the same time–gold star to MadDog!!).

But the May 30 CAT memo actually mentions two detainees.

We understand that two individuals, [redacted across two pages] are representative of the high value detainees on whom enhanced techniques have been, or might be, used.

I’ll come back to this passage, but for the moment, understand that by the end of May 2005, Bradbury was ready to at least name two detainees in his memo.

The “Techniques” Memo Is about Ghul

I’m not 100% certain, but I believe that the May 10 Techniques memo is–at least ostensibly–exclusively about Ghul. The title of the memo uses the singular–Detainee. And the memo describes the detainee by name (the name is redacted, but it appears to be an appropriate length to spell “Hassan Gul”–CIA spelled “Ghul” without an “h”).

You asked for our advice concerning these interrogation techniques in connection with their use on a specific high value al Qaeda detainee named [redacted]. You informed us that the [redacted] and information about al Qaeda’s plans to launch an attack within the United Staes. According to [redacted] had extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and had arranged meetings between an associate and [redacted] to discuss such an attack. August 25 [redacted] Letter at 2-3. You advised us that medical and psychological assessments [redacted] were completed by a CIA physician and psychologist, and that based on this examination, the physician concluded “[redacted] medical stable and has not medical contraindications to interrogation, including the use of interrogation techniques” addressed in this memorandum.

So by all appearances, the Techniques memo uses the interrogation of Ghul to reapprove all the techniques used by the CIA, thereby replacing Bybee Two.

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The April 22, 2005 Fax on Torture

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I’m working on a series of posts about the 2005 Bradbury Memos and Hassan Ghul. But first, I want to make a couple of points about a document that plays a key role in them–particularly in the Combined Memo: an April 22, 2005 fax from the CIA’s Assistant General Counsel (the name is always redacted) to Steven Bradbury.

The Chronology

Before I get into the significance of the fax, here’s the chronology of it:

December 30, 2004: Background Paper on CIA’s Combined Use of Interrogation Techniques; Daniel Levin torture memo published

February 2005: Daniel Levin leaves DOJ

April 8, 2005: Draft "Techniques" and "Combined" OLC Memos (at that point, 57 pages in length) sent to CIA

"Several weeks" before April 27, 2005: Pat Philbin alerts Jim Comey to problems with "Combined" draft 

April 20, 2005: DOJ announces Jim Comey’s resignation

April 22, 2005: Meeting between Pat Philbin, Jim Comey, Steven Bradbury, Alberto Gonzales about May 10 torture memos

April 22, 2005: Fax to Steven Bradbury from Assistant General Counsel, CIA

April 26, 2005: Comey gets latest draft of Combined memo (no mention of Techniques draft), meets with Gonzales to express concerns, concurs with Techniques memo

April 27, 2005: White House tells Gonzales memos must be finalized by Friday, April 29

April 28, 2005: Gonzales’ Chief of Staff, Ted Ullyot, tells Comey the memo will have to be "sent over" tomorrow

May 10, 2005: Techniques and Combined memos (totaling 67 pages in length) finalized and sent to CIA

Note a few points. The May 10, 2005 memos were drafted by April 8, 2005. Apparently not long after CIA received that draft, Pat Philbin notified Jim Comey of problems with the "Combined" memo and (though there’s no reason to believe they’re related events) Comey resigned. 

And then, on Friday April 22, two things happened. Comey and Philbin tried to talk Gonzales and Bradbury into fixing the "Combined" memo. And Bradbury received the April 22 fax from the Assistant General Counsel of the CIA. Also note, while it’s clear Comey saw a draft of the "Combined" memo after April 22 (the one he describes as being worse than the previous draft he had seen), it’s not clear he saw another draft of the "Techniques" memo before he concurs with it on April 26–though we know the memo would have changed in the interim, since it cites the April 22 fax.

We don’t know what happened after that point. Read more →

“Legal”

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When I first started bitching about this NYT story, I did so because it appeared someone had come to the NYT with three pieces of data–the news that Jim Comey concurred with the May 10, 2005 OLC "Techniques" memo, the previously known fact that Daniel Levin had authorized waterboarding under certain circumstances in August 2004, and the self-evident fact that Jack Goldsmith had not withdrawn the Bybee Two memo in 2004 when he had withdrawn the Bybee One memo (though not for lack of concern about the memo)–and turned it into an A1 story trumpeting that "US Lawyers Agreed on the Legality of Brutal Tactic."

The only real news from those three pieces of data is that Jim Comey, in an email to his Chief of Staff, described having said this to then Attorney General Alberto Gonzales:

I told him the first opinion was ready to go out and I concurred. 

Assuming the statement means what it appears to–that Comey endorsed the findings of the "Techniques" memo–it is news. It means that Comey concurred with the following propositions:

With these considerations in mind, we turn to the particular question before us: whether certain specified interrogation techniques may be used by the Central Intelligence Agency ("CIA") on a high value al Qaeda detainee consistent with the federal statutory prohibition on torture, 18 USC 2340-2340A. For the reasons discussed below, and based on the representations we have received from you (or officials from your Agency), about the particular techniques in question, the circumstances in which they are authorized for use, and the physical and psychological assessments made of the detainee to be interrogated, we conclude that the separate authorized use of each of the specific techniques at issue, subject to the limitations and safeguards described therein, would not violate sections 2340-2340A. Our conclusion is straightforward with respect to all but two of the techniques discussed herein. As discussed below, use of sleep deprivation as an enhanced technique and use of the waterboard involve more substantial questions, with the waterboard presenting the most substantial question.

[snip]

Assuming adherence to the strict limitations discussed herein, including the careful medical monitoring and available intervention by the team as necessary, we conclude that although the question is substantial and difficult, the authorized use of the waterboard by adequately trained interrogators and other team members could not reasonably be considered specifically intended to cause severe physical or mental pain or suffering and thus would not violate sections 2340-2340A.

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All the News NYT Does Not See Fit to Print

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nyt-dom-dada.jpg

As I have pointed out in the last two posts, the NYT has a story up claiming that Jim Comey approved of torture, but that grossly misreads the Comey emails on which the story is based. In fact, the memos appear to show that the White House–especially Dick Cheney and David Addington–were pushing DOJ to approve the torture that had been done to Hassan Ghul, without the specificity to record what they had done to him; in fact, one of the things the push on the memos appears to have prevented, was for Comey and Philbin to have actually researched what happened to Ghul.

But the NYT instead claims that Jim Comey approved of torture legally, even while downplaying his concerns about the "combined techniques" memo that was the focus of his concerns (and not mentioning his response to the third memo).

But there is more news than that in the Comey emails–news the Grey Lady doesn’t seem to think is news. This includes:

Pressure on Pat Philbin

On April 27, 2005, Jim Comey alerted Chuck Rosenberg, his then Chief of Staff, on the fight over the torture emails because he was about to go on a trip, and he figured Pat Philbin would need cover from political pressure. He described that Philbin’s concerns about the memo were ignored. He closed the email by saying that Gonzales had visited the White House and–in spite of Comey’s request for a delay–told Philbin and Bradbury to finish the memo by Friday, April 29. Philbin objected that that was not enough time to do the "fact gathering" needed to fix the memo. Comey was basically asking Rosenberg to prepare to intercede on this process.

The following day, Comey emailed again to say that Ted Ullyot (who had just been read-in to this program) was pushing to get the memo done. It also appears that Ullyot was claiming Comey’s objections had to do with the prototypical interrogation included in the memo, and not the lack of specificity.

Alberto Gonzales’ Cowardice

Comey describes Dick Cheney putting a great deal of pressure on Alberto Gonzales to push through the memos in the last weeks of April.

The AG explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP’s request and the AG had promised they would be ready early this week. Read more →

Pre-Emptive Strike on OPR Report: NYT Misrepresents Comey Emails, Claims He Approved Torture

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Update: Read the Comey emails. The NYT has–IMO–grossly misrepresented the emails. Not only have they printed a story with their source’s spin completely untouched, but they have ignored the real news in these emails.

The NYT has been leaked a bunch of the emails that will show up in the Office of Public Responsibility report on John Yoo, Jay Bybee, and Steven Bradbury’s role in approving torture. (h/t Jason Leopold) Their story on the emails appears to be a pre-emptive (and somewhat misleading) strike on the OPR report due out shortly.

The most news-worthy of these appears to be Jim Comey, agreeing that the May 10, 2005 opinion authorizing waterboarding was “ready to go.”

Previously undisclosed Justice Department e-mail messages, interviews and newly declassified documents show that some of the lawyers, including James B. Comey, the deputy attorney general who argued repeatedly that the United States would regret using harsh methods, went along with a 2005 legal opinion asserting that the techniques used by the Central Intelligence Agency were lawful.

That opinion, giving the green light for all 13 C.I.A. methods, including waterboarding and up to 180 hours of sleep deprivation, “was ready to go out and I concurred,” Mr. Comey wrote to a colleague in an April 27, 2005, e-mail message obtained by The New York Times.

While signing off on the techniques, Mr. Comey in his e-mail provided a firsthand account of how he tried unsuccessfully to discourage use of the practices. He made a last-ditch effort to derail the interrogation program, urging Attorney General Alberto R. Gonzales to argue at a White House meeting in May 2005 that it was “wrong.”

“In stark terms I explained to him what this would look like some day and what it would mean for the president and the government,” Mr. Comey wrote in a May 31, 2005, e-mail message to his chief of staff, Chuck Rosenberg. He feared that a case could be made “that some of this stuff was simply awful.”

Now, I say this is a misleading attempt to pre-empt the OPR report.

I say it’s misleading not because I’m trying defend Comey for “going along with” this memo. But because the story buries the fact that Comey still did oppose the May 30, 2005 May 10 techniques memo (which raises the question of why these approvals came in three different memos).

His objections focused on a second legal opinion that authorized combinations of the methods. He expressed “grave reservations” and asked for a week to revise the memorandum, warning Mr. Gonzales that “it would come back to haunt him and the department,” Mr. Comey said in a 2005 e-mail to Mr. Rosenberg.

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If the Detainee Dies, Doing Sleep Deprivation Is Wrong

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afghandrawing1.thumbnail.jpgOne of the most shocking quotes from the Senate Armed Services Committee torture report came from Jonathan Fredman, then the Counsel for CounterTerrorism Center at CIA, now working for the Director of National Intelligence, told some interrogators at Gitmo, "It is basically subject to perception. If the detainee dies you’re doing it wrong." Fredman is reported to have said that on October 2, 2002. A month later, on November 1, 2002, the staff JAG for a Special Ops unit in Bagram judged there was a risk to participating in CIA interrogations; "we are at risk as we get more ‘creative’ and stray from standard interrogation techniques and procedures taught at DoD and DA schools and detailed in official interrogation manuals." A month after that, two prisoners at Bagram died as a result of torture; Habibullah on December 3 and Dilawar on December 9 or 10.

This is not news. Their deaths–particularly that of Dilawar–have received a good deal of attention. There was an extensive report on their treatment in the NYT. (And as Loo Hoo notes, Dilawar was the subject of Taxi to the Dark Side.)

What I did not know, though, is that the criminal report on their deaths found the use of stress positions and sleep deprivation, "combined with other mistreatment," to have "caused" or have been "direct contributing factors" in the two homicides. From the SASC report:

In December 2002, two detainees were killed while detained by CITF-180 at Bagram. Though the techniques do not appear to have been included in any written interrogation policy at Bagram, Army investigators concluded that the use of stress positions and sleep deprivation combined with other mistreatment at the hands of Bagram personnel, caused or were direct contributing factors in the two homicides. 1174 In the wake ofthe deaths of Habibullah and Dilawar, CITF-180 and the SMU TF began developing written standard operating procedures (SOPs) for interrogations. [my emphasis]

This report was dated October 8, 2004.

Mind you, this is the best demonstration available that (as Jeff Kaye has explained) "sleep deprivation"–as described in the torture program–is never just sleep deprivation. 

What this … demonstrates is the proclivity of the CIA and other government torturing agencies to twist the meaning of words, and stuff into the nomenclature of one "technique" or procedures a veritable cornucopia of different torture methods. In this "enhanced interrogation" version of sleep deprivation, forced sleep deficit was combined, as we can see, with shackling, forced positions and forced standing, humiliation, manipulation of diet, sensory overload, and possibly other torture procedures.

Rather, "sleep deprivation" is the excuse for shackling prisoners, in the case of Dilawar, hanging him from the ceiling by his arms.

That October 8, 2004 criminal investigation report, then, was effectively an admission that the "sleep deprivation," as practiced, combined with other harsh treatment (in the case of Dilawar, extensive beatings to his legs while he was hanging from his arms), could kill.

Now look at that date once more: October 8, 2004, Read more →

Whitehouse: Laying the Groundwork for the Torture Case

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KeithO had Sheldon Whitehouse on this evening to set up his torture hearing tomorrow (10 AM, and yes, I’m liveblogging it). Here’s what Whitehouse said he hopes to accomplish tomorrow.

I hope what America will learn is that the facts that were alleged in the torture memos are very likely not true, the legal theories were contested even by Bush Administration lawyers who weren’t in on the fix, and a little bit about what the consequences are for lawyers who commit professional malfeasance.

I explained how Ali Soufan has (and will) shown that "the facts that were alleged in the torture memos" are not true here:

Ali Soufan, the FBI interrogator described in the DOJ IG report on interrogation as the interrogator (whom they call "Thomas") who called CIA’s tactics on AZ, "borderline torture," has an important op-ed in the NYT. He writes,

One of the most striking parts of the memos is the false premises on which they are based. 

I pointed this out myself, in a post on why the debate over whether these techniques were necessary and effective is so heated.

Check out what the second paragraph of the Bybee Memo says:

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United Stares or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an "increased pressure phase." [my emphasis]

Here’s what Ali Soufan says:

It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Read more →