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DOD and Torture Declassification Timing

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I think I’ll be doing a series of posts on the DOJ IG report on torture. In this post, I will look at some of the timing surrounding torture declassification.

The very first footnote in the 300-odd page report sticks a shiv into DOD for its stalling on this report:

The OIG has redacted (blacked out) from the public version of this report information that the FBI, the Central Intelligence Agency (CIA) or the Department of Defense (DOD) considered classified. We have provided full versions of the classified reports to the Department of Justice, the CIA, the DOD, and Congressional committees. The effort to identify classified information in this report has been a significant factor delaying release of the report. To obtain the agencies’ classification comments, we provided a draft report to the FBI, the CIA, and the DOD for classification review on October 25, 2007. The FBI and the CIA provided timely responses. The DOD’s response was not timely. Eventually, the DOD provided initial classification comments to us on March 28, 2008. However, we believed those classification marking were over-inclusive. After several additional weeks of discussion with the DOD about these issues the DOD provided revised classification comments. The DOD’s delay in providing comments, and its over-inclusive initial comments, delayed release of this report.

This is not the first we’ve heard of DOD’s stalling. In an April interview with McClatchy, Fine complained about it.

Marisa Taylor reports that DOD is stalling the release of a DOJ IG report on the FBI’s role in torture.

The release of a report on the FBI’s role in the interrogations of prisoners in Afghanistan, Guantanamo Bay and Iraq has been delayed for months because the Pentagon is reviewing how much of it should remain classified, according to the Justice Department’s watchdog.

Glenn Fine, the Justice Department’s inspector general, told McClatchy that his office has pressed the Defense Department to finish its review, but officials there haven’t completed the process "in a timely fashion."

"Why that happened, I don’t know," Fine said in an interview this week.

Tell me, Marisa Taylor, did Fine have a smirk on his face when he said that? I couldn’t imagine why DOD would be stalling the release of this report!

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 →

Back to the Question of ABC’s Sources

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Remember that series of stories from ABC about Bush’s top advisors choreographing torture techniques with Bush’s explicit approval? I know it’s hard to remember those stories what with your rabid obsession with flag pins and whatnot.

As a reminder, I had wondered who from the Principals Committee might have served as a source for ABC. Well, the Guardian just published this (h/t Ellie).

The US’s most senior general was "hoodwinked" by top Bush administration officials determined to push through aggressive interrogation techniques for terror suspects held at Guantánamo Bay, the Guardian can reveal.

[snip]

• Myers believes he was a victim of "intrigue" by top lawyers at the department of justice, the office of the vice president, Dick Cheney, and Donald Rumsfeld’s defence department.

• Myers wrongly believed interrogation techniques had been taken from the army’s field manual.

The lawyers who pushed through the interrogation techniques – all of them political appointees – were Alberto Gonzales, David Addingon and William Haynes.

Others involved were Doug Feith, Rumsfeld’s undersecretary for policy, and Jay Bybee and John Yoo, two assistant attorney generals.

[snip]

The Bush administration has tried to explain away the ill-treatment of detainees at Guantánamo and the Abu Ghraib prison, in Baghdad, by blaming junior officials.

Sands establishes that pressure for the aggressive and cruel treatment of detainees came from the very top and was sanctioned by the most senior lawyers.

Myers, the most senior military officer of the most powerful country in the world, was one top official who did not understand the implications of what was being done.

Sands, who spent three hours with the former general, describes him as being "confused" about the decisions that were taken.

[snip]

"As we worked through the list of techniques, Myers became increasingly hesitant and troubled," Sands writes. "Haynes and Rumsfeld had been able to run rings around him."

Myers and his closest advisers were cut out of the decision-making process, so he was not given sufficient opportunity to object to measures he now says he strongly disapproved of.

He did not know that Bush administration officials were changing the rules allowing interrogation techniques, including the use of dogs, amounting to torture.

"We never authorised torture, we just didn’t, not what we would do," Myers said.

This piece certainly makes it clear that Myers would like to blame others for the torture regime in the US.

Read more →

Bush: The Country Is at War, Therefore We Do Not Torture

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While I wait patiently for the press to notice that George Bush admitted to instituting a regime of torture last Friday, I wanted to call your attention to one of Bush’s most famous statements purportedly denying that we torture. The statement came on November 7, 2005, just after Dana Priest’s Black Sites article appeared, and in the middle of Congress’ efforts to forbid torture. The statement came within days–if not hours–of the time when the CIA (supposedly working on its own) destroyed the evidence of torture.

The statement starkly follows the logic of John Yoo.

Q Mr. President, there has been a bit of an international outcry over reports of secret U.S. prisons in Europe for terrorism suspects. Will you let the Red Cross have access to them? And do you agree with Vice President Cheney that the CIA should be exempt from legislation to ban torture?

PRESIDENT BUSH: Our country is at war, and our government has the obligation to protect the American people. The executive branch has the obligation to protect the American people; the legislative branch has the obligation to protect the American people. And we are aggressively doing that. We are finding terrorists and bringing them to justice. We are gathering information about where the terrorists may be hiding. We are trying to disrupt their plots and plans. Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law. We do not torture.

And, therefore, we’re working with Congress to make sure that as we go forward, we make it possible — more possible to do our job. There’s an enemy that lurks and plots and plans, and wants to hurt America again. And so, you bet, we’ll aggressively pursue them. But we will do so under the law. And that’s why you’re seeing members of my administration go and brief the Congress. We want to work together in this matter. We — all of us have an obligation, and it’s a solemn obligation and a solemn responsibility. And I’m confident that when people see the facts, that they’ll recognize that we’ve — they’ve got more work to do, and that we must protect ourselves in a way that is lawful.

Note the logic of the statement:

  1. Our country is at war
  2. The executive branch has the obligation to protect the American people
  3. Read more →

The WaPo Did Not Scoop This Story in 2005

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I’m still waiting for the media to start covering the news that a head of state–the head of our state–just admitted to approving torture. As of 9:30, only UPI has joined ABC and the WaPo in noting this story–which is about all they do, note it (though the foreign press is beginning to take note). For its part, ABC seems to have gotten bored with breaking the news that the President authorized his top aides to set up a torture regime–by 5PM yesterday they had removed the story from their Top Headlines (but worry not, you can still find the story of Sam, the dog that invited himself to his owner’s funeral, among the Top Headlines).

While we’re waiting for what I’m certain will be a barrage of stories covering the fact that the President thinks it’s okay to torture so long as John Yoo says so, I thought I’d look at the WaPo’s claim that they had already covered this story. I mean, I’m glad that the WaPo saw fit to cover the story–it even made it onto page A3; I should be glad it was not relegated to Lifestyles. But it’s clear the WaPo is missing what’s new with this story.

In its story, the WaPo claims it covered this in January 2005.

The Washington Post first reported in January 2005 that proposed CIA interrogation techniques were discussed at several White House meetings. A principal briefer at the meetings was John Yoo, who was then a senior Justice Department attorney and the author of a draft memo explaining the legal justification for the classified techniques the CIA sought to employ.

The Post reported that the attendees at one or more of these sessions included then-presidential counsel Alberto R. Gonzales, then-Attorney General John D. Ashcroft, then-Defense Department general counsel William J. Haynes II, then-National Security Council legal adviser John B. Bellinger III, CIA counsel John A. Rizzo, and David S. Addington, then-counsel to Cheney.

The Post reported that the methods discussed included open-handed slapping, the threat of live burial and waterboarding. The threat of live burial was rejected, according to an official familiar with the meetings.

State Department officials and military lawyers were intentionally excluded from these deliberations, officials said.

Gonzales and his staff had no reservations about the proposed interrogation methods and did not suggest major changes, two officials involved in the deliberations said.

Read more →

Does the Former Holy Inquisitor Refuse to Eat with Torturers?

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I have no idea whether Sara’s speculation is correct–that Pope Benedict just declined the invite to the State dinner Bush and Laura are throwing for him because he doesn’t want to break bread with a torturer.

Guess who’s not coming to dinner? Pope Benedict XVI.

President Bush and his wife, Laura, will host a White House dinner in honor of the pontiff Wednesday evening. U.S. Catholic leaders from around the nation will attend. The menu will offer Bavarian-style food in recognition of the pope’s German heritage. It’s even the pope’s 81st birthday. But he won’t be there.

But I sure hope that the media, in the midst of its mad crush to cover the story that the President has admitted he sanctioned torture, will find out.

Consider the optics of such a dinner, after all. Pope Benedict was, until a few years ago, in charge of the Congregation of the Doctrine of the Faith. That’s the office formerly known as "the Inquisition." And the Inquisition, of course, is famous for a number of things, just about all of them unpleasant. Lately, though, the Inquisition has gotten a lot of bad press for inventing water-boarding. There’s a direct tie between the reprehensible actions of the Catholic Church during one of the ugliest moments and what George Bush just admitted–almost flippantly–to have personally approved.

Now, it’s possible that, even if Benedict is blowing off dinner as a protest, that it doesn’t relate to Bush’s admission that he green-lighted water-boarding. The Catholic Church has been critical of a number of things Bush has done–most notably, starting an illegal war in Iraq.

But I can sure imagine that Pope Benedict–who himself gets a lot of bad press for his past as the arbiter of Catholic doctrine–would not want to be associated with a President just after he admits to approving of methods recalling the Inquisition.

Update: Here’s Sara at more length:

Well, it was an interesting week. The German Chancellor, The British Prime Minister and the Secretary General of the UN, among others, found that they had schedule conflicts, and would not be able to attend the opening of the Olympics in Beijing this summer. Bush apparently still intends to attend, and all the presidential candidates are hot to offer him advice regarding formally standing up for Human Rights.

Read more →

Bush OKs Torture. Media Yawns.

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So ABC News had an exclusive interview and got a pretty important scoop last night. You may have heard about it: George Bush, a man who took an oath to support and defend the Constitution, admitted (with zero shame) that he approved of the meetings at which his top advisors discussed and approved the excruciating details of torture.

And, yes, I’m aware our national security team met on this issue. And I approved.

The President just admitted that he approved torture.

And thus far at least, no one seems to give a damn. As of 9AM, the NYT published no news of Bush’s admission. The WaPo placed a story on A3 (stating that they had already reported this, even though they hadn’t reported this). ABC, the outlet that got the damn scoop, places the story fourth on its list of stories, behind Obama and Indiana and Hillary telling Bill to "butt out," with the main picture on the front page cycling through such critical stories as a dog who invited himself to his owner’s funeral. Oh–and do you think maybe there’s a connection between the stories of teens beating each other and the President, approving of torture?

This is an exclusive with the President who, after lying about torture for four years, just admitted that he knew and approved of the torture! And yet you place it there among the cute puppy stories?

As for the rest of the news media, thus far, crickets. Though kudos to Randy Scholfield of the Wichita Eagle who–without yet having the news that the Principals did not really insulate Bush from these discussions–states, "Nor will history judge the American people kindly if we look the other way."

I understand Bush’s approval of torture is not news, as in, something the beltway insiders didn’t already know. I agree with Bush, sort of, that this is not startling. At the same time, it appalls me that the President of the United States can admit to approving torture and yet no one finds that unusual, that no one is interrupting existing programming to announce this, that even ABC treats this as one story among the cute puppy and Hill and Bill stories. At the very least, try to muster some outrage that the President has been lying about torture for four years, could ya?

Remember Watergate? Remember "what did the President know, and when did he know it?" Read more →

Haynes, Armed Services, Perjury?

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Scott Horton has more on the news that Jim Haynes has lawyered up–borrowing Dick’s trusty lawyer–in the face of scrutiny from Armed Services. Scott seems to imply that Armed Services is closing in on Haynes on perjury charges.

I’ve been looking into this trying to get a sense of what, exactly, the Armed Services Committee is so eager to discuss with Haynes. Two possibilities emerge.

First is the subject that Isikoff identifies: committee staffers have been carefully assembling secondary accounts concerning Haynes’s role in the process of authorizing highly coercive interrogation techniques, in preparing memoranda, and in soliciting memoranda to cover his advice from the Justice Department’s Office of Legal Counsel. Haynes’s relationship and dealings with OLC are drawing particular attention. Similarly, staffers are looking very carefully at Haynes’s prior appearances before the Committee, as well as his appearance before the Senate Judiciary Committee in connection with his nomination to the Fourth Circuit Court of Appeals.

My hunch is that the facts and circumstances surrounding the preparation of the two “torture memoranda,” which I have dubbed Yoo Prime (August 2002) and Yoo Two (March 2003) will be right in the center of questioning. Something that Haynes said, it seems, doesn’t sit right with the investigators.

The second matter is Haynes’s role in restructuring the Military Commissions at Guantánamo and tasking prosecutors and the legal advisor to the convening authority. This is the point on which the president of the New York City Bar, apparently now joined by other bar associations, is pressing for Haynes’s examination under oath. Accusations come from the former chief prosecutor, Colonel Morris Davis, among others. Davis has recently stated that he is prepared to submit to a lie-detector test about the matter. Haynes has refused to make public comment, offering only a bland statement that he “disputes” Davis’s charges through a Pentagon public affairs spokesman. [my emphasis]

Read more →

The “John Yoo, Let’s Pretend We’re Lawyers” Game

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Here’s a fun little game you bloggers can try at home. It’s called the "John Yoo, Let’s Pretend We’re Lawyers" game.

  1. Take an 81-page opinion dealing with the degree to which the President’s power is bound (or not) by existing laws during war time
  2. Open both parts of that opinion in your PDF reader (Part One, Part Two)
  3. Using the search function on your PDF reader, search for the word "Youngstown"
  4. Guess how many citations to Youngstown you find–go on, guess!

Peterr helpfully suggests via email, "Maybe it was redacted for national security reasons."

And in case you were worried that Yoo simply doesn’t know about Youngstown, see this link (also courtesy of Peterr), that demonstrates that Professor Yoo believes it is the first text to consider in any discussion of separation of powers.

Acting Counsels and Torture

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Marty Lederman links to the finally declassified March 2003 memo authorizing torture in the military (Part One, Part Two). He reminds us the significance of the memo:

As I’ve discussed previously — see for instance here and here, and as Jane Mayer has reported in great detail, the March 14th Yoo memorandum, and the April 2, 2003 DOD Working Group Report that incorporated its outrageous arguments about justifications for ignoring statutory limits on interrogation, was secretly briefed to Geoffrey Miller before he was assigned to Iraq, and became the source of all the abuse that occurred there in 2003 and early 2004. (In late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the "unusual lack of care and sobriety in [its] legal analysis" — it "seemed more an exercise of sheer power than reasoned analysis" — and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo. See the whole story here.)

But I’m even more interested in this part of Marty’s post:

On Friday, March 13, 2003, Jay Bybee left his office as the Assistant Attorney General for the Office of Legal Counsel. The very next day — a Saturday — John Yoo, merely a Deputy AAG in the Office, issued his notorious memo to the Pentagon, on behalf of OLC, which effectively gave the Pentagon the green light to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees.

It describes how, as soon as the established top lawyer for one part of the executive branch left, his replacement took responsibility for a significant legal act. I find it ironic, particularly given the stamp that appears on the first page of the first part of the memo:

Declassify under authority of Executive Order 1958
By Acting General Counsel, Department of Defense,
By Daniel J. Dell’Orto
31 March 2008

Dell’Orto, you’ll remember, replaced William Haynes at some point last month. I’m not precisely sure when Haynes’ last day was–but within weeks of taking over as Acting General Counsel at DOD, Dell’Orto declassified an opinion we’ve been trying to declassify for years. Read more →