Lindsey Graham: For McCarthyism before He Was Against It

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Zachary Roth raises a really important point about Lindsey Graham (aka Rahm’s Attorney General). Though in recent days Graham has come out against Liz Cheney’s McCarthyism, he was one of the Republicans who started this whole witch hunt last November by signing a letter (authored by Chuck Grassley) asking for a details on those who had defended detainees in the past:

To better understand the scope of these apparent conflicts of interest, Senator Grassley asked for the following information:(1) The names of political appointees in the Department who represented detainees, worked for organizations advocating on behalf of detainees, or worked for organizations advocating on terrorism or detainee policy; (2) The cases or projects that these appointees worked on with respect to detainees prior to joining the Justice Department; (3) The cases or projects relating to detainees that they have worked on since joining the Justice Department; and (4) A list of all political appointees who have been instructed to, or have voluntarily recused themselves from working on specific detainee cases, projects, or matters pending before the courts or at the Justice Department.

Unfortunately, your response to Senator Grassley’s request was less than encouraging as you repeatedly stated you would merely “consider” the request. It is imperative that the Committee have this information so we can assure the American people that the Department is in fact formulating terrorism and detainee policy without bias or preconceived beliefs.

In addition to the information requested at the hearing, we ask that you also provide responses to the following related questions:

(1) Have any ethics waivers been granted to individuals working on terrorism or detainee issues pursuant to President Obama’s Executive Order dated January 21, 2009, titled “Ethical Considerations for Executive Branch Employees?” (2) What are the Department’s criteria for recusing an individual who previously lobbied on detainee issues, represented specific detainees, worked on terrorism or detainee policy for advocacy groups, or formulated terrorism or detainee policy? (3) What is the scope of recusal for each of the political appointees who have recused themselves from working on specific detainee cases, projects, or matters? (e.g. is an individual who previously represented a detainee recused only from matters related to that individual or from other detainees?) Please provide a detailed listing of the scope of each recusal.

Now, Zach says Graham’s office has not yet responded to his inquiry for clarification on this issue.

But Zach, like me, seems to think this is a significant issue given that Graham is apparently being treated like a good faith partner on efforts to close Gitmo. Are we really going to compromise on Constitutional issues with Graham, when in six months time he could be back scaremongering with the McCarthyites again?

Mukasey’s Muddle

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Say what you will about Michael Mukasey, but usually he can craft a fairly logical argument.

That’s not, however, true of this muddled op-ed in the WSJ. The op-ed attempts to draw an equivalence between lawyers–but not civil liberties organizations–that have represented Gitmo detainees and Yoo and Bybee (and, by association, though he doesn’t admit it, Michael Mukasey). But the muddle that results demonstrates as well as anything how conflicted and illogical Mukasey’s own position is.

Mukasey starts by asserting a parallel between three different sets of lawyers:

  • Bernie Madoff’s lawyer
  • Yoo and Bybee “for legal positions they took as to whether interrogation techniques devised and proposed by others were lawful—a campaign that also featured casual denunciations of them as purveyors of torture”
  • Lawyers in private practice who represented detainees and “have been portrayed as in-house counsel to al Qaeda”

Now, Mukasey misrepresents why Yoo and Bybee are being attacked. It’s not because of the legal positions they took, it’s because of the process by which they purportedly came to those opinions.

But look how quickly claiming a parallel between these three groups of lawyers–two engaged in antagonistic proceedings, the third not–to this step.

A lawyer who represents a party in a contested matter has an ethical obligation to make any and all tenable legal arguments that will help that party. A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe.

Mukasey moves from legal representation of a client to–in Mukasey’s own words–“authoriz[ing] any step or practice the law permits … to keep the nation … safe.” Mukasey is now saying that Yoo and Bybee authorized torture, rather than analyzing statutes such that their client (whoever Mukasey wants to claim that is, because it changes) can authorize torture, based on Yoo’s legal advice. (Note, as AG, Mukasey may well have authorized such things, but the arguments folks have made to defend Yoo all presume he didn’t do the actual authorization, which would suggest he made the policy decision.)

And never mind the unquestioned assumption that lawyers are obligated to do this “in order to keep the nation … safe,” suggesting that the purported efficacy of the torture somehow changed the legal obligations involved.

In other words, these are not at all parallel cases. One is protecting the law, the process of the law. The other is claiming to protect the country, with a pretty twisted definition of the role of the lawyers involved.

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Ronald Rotunda: Yoo Sent Email to Someone Else

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Ronald Rotunda, having received a copy of my post suggesting that he was the professor whom Yoo emailed looking for help on common law defenses, has emailed to say he did not correspond with Yoo at all on these issues.

As you’ll recall, last month, I pointed to a section of the report describing Yoo asking a law professor how common law defenses work in criminal law (the correspondent is labeled a law professor in one of the drafts of the report). Based on the fact that only one law professor, Ronald Rotunda, was listed in the Glossary of Names included with the report and only one law professor appears in the unclassified sections of the report, I suggested that Rotunda appeared to be the person whom Yoo emailed. In addition, OPR sent Rotunda a draft of the report last March which, given the confidential nature of the investigation, seemed odd short of his involvement in the report itself.

But via email, Rotunda has said he was not the one to whom Yoo sent that email. With Rotunda’s permission, I’ve included his direct comments below (though I have grouped them so that his responses to my questions are together).

At first, it seemed that Rotunda was denying having corresponded with Yoo directly about torture.

I do know that no one ever sent me emails or other communications about the torture memos, and — if they had — I would have said what I have always said: our government should not use waterboarding.  While I do not believe in discipline for the lawyers involved (for reasons I stated in my letter), I also do not embrace those memos.

When I noted that the email in question was not about torture memos but would have appeared, instead, to be a professional request unrelated to such issues (I quoted Yoo’s email as described in the OPR Report), Rotunda repeated that he had not received the email.

I never saw that email or responded to it until you all brought it up a few days ago. I hope that is clear.

[snip]

And, to be clear, I never responded to Yoo’s email because I never received it. He sent it someone else.

I apologize to Rotunda, then, for suggesting he was the one with whom Yoo had that email exchange. I will note Rotunda’s comments in the original post.

Rotunda’s explanation that he was not Yoo’s email correspondent presents another few puzzles, such as why OPR sent Rotunda a draft of the report in the first place, way back in March 2009.

I had a copy of the draft OPR report because the OPR sent it to me so that I could give OPR my opinion. After I sent my letter, OPR asked me to destroy the draft OPR report.

When I asked why DOJ would have chosen to send him the report for his opinion, Rotunda suggested that that might be because he has done work for DOJ in the past.

Over the years (actually, decades now), the Department of Justice has retained me on various matters.  I don’t think I have written anything that was sent to OPR until this time.  OPR sent me the material so that I could review the draft.  That I know.

[snip]

As for what I’ve done in the past, that would be confidential.  What has been publicly revealed (so there is no confidentiality requirement) is that many years ago I served as an expert witness for the Department of Justice in a fraud case. I really don’t remember the details, but it was at least twenty years ago. (Sadly, that proves I’m no spring chicken.)

It also raises the question of why Rotunda’s name was listed in the Glossary of Names included as Appendix C of the report.

I suppose my name was listed in the Glossary because I wrote the letter.  You probably should ask OPR why my name was listed. I don’t know.

[snip]

What I don’t know is why I’m in the Glossary. OPR should know that.

I have asked DOJ for more explanation of why OPR sent Rotunda a copy of the report last March and will let you know what they say.

Meanwhile, that leaves the question of who Yoo consulted to come up with his crappy defenses section unanswered.

The Waterboarding Smoking Gun, Again

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Since Mark Benjamin has decided to claim–some 300-plus days after I did the first of many posts focusing on the details of waterboarding (to say nothing of posts drational did looking at these descriptions medically)–that, “the agency’s “enhanced interrogation program” haven’t been mined for waterboarding details until now,” I thought I’d make another point about the significance of those details.

As Mark points out and I’ve been pointing out for 11 months, the torturers did far more during waterboarding than what members of the military underwent in SERE training. They dumped large amounts of water onto detainees, and made sure detainees inhaled water. This is far worse than either the Bybee Two Memo or SERE training describes.

Which is why it is so important that, six days before Yoo finalized the Bybee Two memo describing a relatively controlled waterboarding process, Jim Haynes went out of his way to get JPRA to send CIA a description of waterboarding that also didn’t resemble waterboarding as it was done in SERE training (Haynes appears to have given orders eliciting that description in a face-to-face meeting).

As the SASC reported, DOD General Counsel Jim Haynes got JPRA, the entity that administers SERE training, to put together two packets of information on July 25 and 26, ostensibly about SERE training, though JPRA personnel realized he wanted to use it to reverse-engineer the techniques. As we now know, those were crucial days of the Bybee Memo drafting process, when Yoo was looking for more data before he could approve waterboarding, and at about the time when CIA decided it wanted written approval of the torture techniques. But the description JPRA sent Haynes (and CIA)–a description that the OPR Report makes clear OLC received–didn’t describe waterboarding as the Navy used it. Rather, it described waterboarding as it would ultimately be practiced by the CIA.

JPRA’s description of the waterboarding technique provided in that first attachment was inconsistent in key respects from the U.S. Navy SERE school’s description of waterboarding. According to the Navy SERE school’s operating instructions, for example, while administering the technique, the Navy limited the amount of water poured on a student’s face to two pints. However, the JPRA attachment said that “up to 1.5 gallons of water” may be poured onto a “subject’s face.” While the Navy’s operating instructions dictated that “[n]o effort will be made to direct the stream of water into the student’s nostrils or mouth,” the description provided by JPRA contained no such limitation for subjects ofthe technique. While the Navy limited the use ofthe cloth on a student’s face to twenty seconds, the JPRA’s description said only that the cloth should remain in place for a “short period of time.” And while the Navy restricted anyone from placing pressure on the chest or stomach during the administration of this technique, JPRA’s description included no such limitation for subjects of the technique.

Think about it. Why would Haynes make sure Yoo had this description, particularly if Yoo was going to use a more restrained description of the practice in his memo (just as he did with his description of sleep deprivation and small box confinement)? Why didn’t they just use a description of what the Navy actually did? And where would JPRA have gotten that description? How did it happen that OLC ended up getting a description of waterboarding as it would ultimately be practiced?

There are a  number of possibilities: maybe JPRA got a hold of Mitchell and Jessen’s description of waterboarding as proposed and used that instead. Maybe CIA knew they were going to exceed the limits Yoo described in the memo.

Or, maybe JPRA somehow described waterboarding as it had already been applied to Abu Zubaydah.

I can’t yet prove which of those things happened. But I’d suggest that, now that others have decided to look at descriptions I’ve been writing about for 11 months, they also might want to look at this particular description, which in theory, at least, preceded the waterboarding purportedly authorized by the Bybee Memo six days later.

The DOD Techniques from Spring 2004

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Yesterday when I raised the question of what techniques DOD wanted to use in spring 2004, I said there was some ambiguity about what DOD was trying to get approved. In this post I’m going to lay out the conflicting sources of information. Given the totality of information, though, it appears that what DOD asked to use in spring 2004 was extended isolation.

As you’ll recall, Jack Goldsmith originally told Jim Haynes not to rely on the March 2003 Yoo memo in late December 2003. But the OPR report describes a request to use some technique in early March 2004 that set off the more active withdrawal and replacement for the memo.

Here’s how Goldsmith describes his conversation with Haynes in December 2003 in Terror Presidency:

“Jim, I’ve got bad news,” I began. “We’ve discovered some errors in the March 2003 opinion that John wrote you on interrogation. The opinion is under review and should not be relied upon for any reason. The twenty-four techniques you approved are legal, but please come back for additional legal guidance before approving any other technique, and do not rely on the March 2003 opinion for any reason.”

Of those 24 techniques Goldsmith said he told Haynes were legal, Rummy had listed four (incentive/removal of incentive, pride and ego down, mutt and jeff, and isolation) that required advance notification (though not approval) from the Secretary of Defense.

The OPR Report described that conversation slightly differently.

Accordingly, Goldsmith telephoned Haynes in late December 2003 and told him that the Pentagon could no longer rely on the Yoo Memo, that no new interrogation techniques should be adopted without consulting OLC, and that the military could continue to use the noncontroversial techniques set forth in the Working Group Report, but that they should not use any of the techniques requiring Secretary of Defense approval without first consulting OLC.

The Working Group Report approved 26 techniques generally and another 9 in exceptional circumstances. Read more →

Senator Bob Graham: Majority on Senate Intelligence Committee Supported Interrogation Oversight in 2002

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A couple of weeks ago, I noted that the CIA Memorandum for the Record from their February 4, 2003 briefing of Pat Roberts revealed that Bob Graham, Roberts’ predecessor as Chair of the Senate Intelligence Committee, had attempted to institute some oversight over the CIA’s interrogation program in November 2002. After CIA discouraged the idea in the briefing, Roberts immediately backed off the idea of doing any oversight.

Roberts’ [redacted; staffer?] asked me whether I had “taken up the line” the Committee’s, actually Senator Graham’s, late November request to undertake its own “assessment” of the enhanced interrogation. I [Stan Moskowitz, head of Congressional Affairs] explained to Senator Roberts the dialogue I had had with [redacted], and our responce [sic] that we would not support reading another staffer into the program nor allow any staffer to review the interrogations in real time or visit the clandestine site where the interrogations were taking place. Quickly, the Senator interjected that he saw no reason for the Committee to pursue such a request and could think of “ten reasons right off why it is a terrible idea” for the Committee to do any such thing as had been proposed. Turning to [redacted], he asked whether they thought otherwise and they indicated that they agreed with the Senator.

I wanted to know what kind of oversight Graham had had in mind, so I asked Senator Graham for an explanation of the reference. According to Graham, a majority of Committee members in November 2002–including a few Republicans–supported conducting oversight of the program. And it seems that CIA mischaracterized to Roberts what Graham had planned, perhaps in an effort to dissuade Roberts from conducting that oversight.

Graham reminded me (as I reported last May) that he was never briefed on the abusive techniques the CIA was using. So he didn’t decide to do more oversight of the program because of concerns about the techniques.

Rather, there was “a lot of smoke” that made it clear “something out of the norm was occurring.” There were “rumors that something was occurring out of the ordinary.” (I asked specifically whether he had heard any rumors about the November 2002 Salt Pit death, but he said he had not.)

But contrary to what the CIA represented to Roberts, Graham wasn’t asking to “review the interrogations in real time.” He was planning initial oversight of the interrogation program. He wanted to ask basic questions about what was going on:

  • What’s going on?
  • Who authorized the program?
  • What [intelligence] are we getting out of it?

Graham told me that “well over a majority” of the committee supported doing such oversight. When I asked, he said Jay Rockefeller, who replaced him as the Ranking Democrat on the Committee, supported the effort. Though Graham didn’t remember precisely who was on the Committee at the time (here’s the list), he named Richard Lugar and Mike DeWine as two of the Republicans who were probably in the majority supporting this kind of oversight over the program.

But between CIA’s apparent misrepresentations to Roberts and Roberts’ own disinterest in asking even the most basic questions about the CIA’s interrogation programs, those efforts ended when Graham left the committee and Roberts took over as Chair.

And that’s how Pat Roberts and CIA agreed to avoid asking or answering even the most basic questions about the Bush Administration’s torture program.

A Blowjob for Liz “BabyDick” Cheney

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Joe Hagan has an epic softball in the New York Magazine describing PapaDick Cheney’s plan to salvage his legacy. Or rather, Liz “BabyDick” Cheney’s plan to salvage Daddy’s legacy, and with it, launch her own career. (At several points, the piece comes close to suggesting PapaDick’s mental acuity is finally going the way of his heart.) It relies on such hard-hitting sources as Rush Limbaugh, Elliott Abrams, former Cheney press aide Pete Williams, and Michael Goldfarb saying, “You have a little crush on her … It’s hard not to.”

Since I’ve mentioned Pete Williams, this description of how much NBC loves the Cheneys is one of the best parts of the article.

Fox is a regular pulpit, of course, but Liz is also all over NBC, where she happens to be social friends with Meet the Press host David Gregory (whose wife worked with Liz ’s husband at the law firm Latham & Watkins), family friends with Justice Department reporter Pete Williams (Dick Cheney’s press aide when he was secretary of Defense), and neighborhood friends with Morning Joe co-host Mika Brzezinski, daughter of Carter-administration national-security adviser Zbigniew Brzezinski. When Mika criticized Dick Cheney on her show last year, the former vice-president sent her a box of chocolate cupcakes.

Lawrence O’Donnell, an MSNBC pundit who engaged in a particularly testy shouting match on Good Morning America with Liz Cheney over waterboarding, says the networks have allowed her a high degree of control over her appearances. “She had up to that point been completely accustomed to having interviews go her way and ceded on her terms,” he observes. “She has been careful to make sure that the interviews worked that way.”

Though somehow Hagan missed the detail from the Libby trial, Cheney’s Press Secretary explaining that Cheney got to set the agenda when he appeared on Meet the Press. Under David Gregory’s watch, I guess that has only gotten to be more true.

In the whole 8-page article, there’s just this hint that BabyDick’s constant press assault might be about legal liability for war crimes rather than political legacy Read more →

Days after Taguba Reported Sadistic Criminal Abuse at Abu Ghraib, DOD Asked to Use More Torture

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On March 13, 2004, according to the OPR Report, Jack Goldsmith and Patrick Philbin went to Jim Comey’s house on a Saturday to alert him of something. The military had contacted Goldsmith, wanting to use a more extreme form of torture against a detainee–something like isolation, waterboarding, water dousing, or death threats.* [Update: In this post I explain why I think DOD was requesting extended isolation.] But, as Goldsmith had told DOD General Counsel Jim Haynes the previous December, the March 2003 opinion Yoo wrote that authorized DOD’s use of such techniques was hopelessly flawed. Goldsmith wanted to explain the flaws of the memo to Comey to get his support for withdrawing the memo. Comey, who was then acting Attorney General (since John Ashcroft was in the ICU with pancreatitis), agreed with Goldsmith’s judgment and–the OPR Report explains–later got John Ashcroft to agree that “any problems with the analysis should be corrected.”

That meeting at Comey’s house took place just four days after Goldsmith and Comey refused to reauthorize the President’s illegal wiretapping program, just three days after Alberto Gonzales and Andy Card raced to the ICU to attempt to convince John Ashcroft to override Comey and reauthorize the program, just two days after Bush reauthorized the program without DOJ concurrence, and just one day after Comey, Goldsmith, and Philbin threatened to quit if Bush didn’t make certain changes to the wiretap program.

The meeting also took place just four days after General Antonio Taguba issued a report finding that “numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees” at Abu Ghraib. Significantly, two of the allegations made against Americans by detainees that Taguba found to be credible–threatening detainees with a loaded pistol and pouring cold water on them–were among the four restricted torture methods that Haynes asked Goldsmith for authorization to use. While it’s not clear how much Goldsmith knew of DOD’s simmering torture problems (in Terror Presidency he said he didn’t learn of Abu Ghraib until it broke in April 2004, though aspects of his book clearly gloss then-classified events), Jim Haynes must have known about them.

The OPR Report doesn’t tell us how this conflict worked out–whether, in response to Goldsmith’s objections, DOD backed off its plans to torture a detainee or whether the White House overruled Goldsmith (or whether, as happened with a number of detainees, they used the technique before they asked to use it).

But we do know this occurred at a point when the White House was rejecting DOJ criticism of its counterterrorism programs. On March 11, in the context of the illegal wiretap program, Alberto Gonzales told Goldsmith that the President “had made an interpretation of law concerning his authorities and that DOJ should not act in contradiction of the President’s determinations.” And on March 16, again in the context of the illegal wiretap program, Gonzales had said,

While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve the goals of the activities authorized by the Presidential authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential authorization the interpretation of the law.

In other words, at precisely this moment, the White House was telling DOJ–and Goldsmith and Comey specifically–that what they thought about the law was interesting, but in no way binding on the President. Indeed, Gonzales was telling these two men they had best not act counter to the will of the White House.

I’ll explain more how I think this resolved in later posts. But for now, realize that one response DOD made to the Abu Ghraib scandal was to ask for more torture.

*There is some ambiguity in the unclassified OPR Report about what range of techniques DOD was trying to use. In a later post I’ll show why I think it was one of the latter three techniques listed here: waterboarding, water dousing, or death threats. [Note, I now think the request was for extended use of isolation, as I explain in this post.]

“We all benefited” from Margolis’ tenure

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A bunch of former DOJ bigwigs just wrote a seemingly pointless letter to Pat Leahy to assure him that David Margolis does not have a partisan–and they mean Left-Right partisan–bias. (h/t Main Justice)

I say “pointless,” to begin with, because after last Friday’s flaccid hearing on the OPR report, is anyone actually imagining that Pat Leahy is going to make a stink because the OPR Report got spiked?

And besides, no one thinks Margolis is a flaming political partisan. He’s a DOJ partisan, always putting the Department first, even ahead of justice. Hearing from a bunch of former DOJ bigwigs claiming he has no bias isn’t going to allay those concerns.

What’s particularly pathetic about this document, though, is the number people with a vested interest making the following weak claims:

we all benefited during our tenures from the wise counsel and good judgment of David Margolis

[snip]

While we do not comment here on the merits of the decision regarding the discipline of John Y00 and Jay Bybee, we are certain that it was reached conscientiously and wholly without partisan purposes.

[snip]

As those who have benefited from David Margolis’s counsel, we know he remains a great asset to the Department and the country for the present and future.

Let’s start with Alberto Gonzales, who gave approval for the use of torture techniques long before OLC did, and who was therefore perhaps the person most in need of the Get Out of Jail Free card that John Yoo wrote him. He signed this document.

So did George Terwilliger, Alberto Gonzales’ defense attorney, representing him on a number of ethical and potentially criminal issues, and therefore, presumably, on torture, if it ever came to that.

There’s Michael Mukasey, about whom Mary wrote a 2,000 word post describing his many conflicts on this issue. And Mark Filip, who helped Mukasey try to spike this report from the start. And Craig Morford, who was Acting DAG when Mukasey reviewed the Steven Bradbury memos and found them reasonable, which was itself a key part of spiking this investigation.

And how about John Ashcroft, huh? He wants you to know that he’s sure that Margolis judged correctly when Margolis determined that Ashcroft’s subordinates did not willfully do wrong when they shredded the Constitution eight years ago under Ashcroft’s inattentive watch. The same Ashcroft who reportedly pushed for some kind of “advance pardon” for the torturers. I sure trust him to tell me whether Margolis judged rightly or wrongly.

Then there’s Paul McNulty who, as US Attorney for Eastern District of VA, declined to charge people who engaged in torture and murder pursuant to these memos. The same guy whose decision to decline prosecution was reconsidered, given all the damning evidence in the OPR Report. Do you honestly believe that McNulty doesn’t want to have his decisions–which shortly preceded his promotion to be Deputy Attorney General–scrutinized that closely?

There’s Jim Comey, who may be one of those refusing to comment on the merits of the decision here (well then, why comment?), but who, when he lost the battle on the torture memos, expressed sadness “for the Department and the AG.” But not, it should be said, for the rule of law.

Add in Larry Thompson, who is another of the lawyers who, at least according to the OPR Report, reviewed and approved of the Bybee Memos. He thinks Margolis did the right thing too.

And, finally, David Ogden, who got fired not long ago, perhaps because he was happy to put politics above the law.

Now I’ll leave it for comments to unpack why people like lobbyist hack Jamie Gorelick wants to boost Margolis. But for now, just know that when at least 10 of these 17 bigwigs say they benefited from Margolis’ “wise counsel and good judgment,” they may well be talking about personal–and significant–benefit.

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.

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