The May 10, 2005 Opinions Were Retrospective

I asked in my earlier post on the NYT leak of Jim Comey emails what the big rush was in May 2005 that Comey couldn’t use a week to fix the "combined techniques" opinion.

The emails themselves explain the rush–and that rush should have been the NYT story. On April 28, 2005, Comey wrote:

[Alberto Gonzales’s COS Ted Ullyot] mentioned at one point that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

In other words, the May 10, 2005 authorization to use combined techniques was designed to give legal cover for something that had already happened.

Now, the other memo mentioned Hassan Ghul several times–Ghul’s interrogators were making requests to use torture in August 2004. Was this the torture they were authorizing after the fact?

And if so, why was it so critical to authorize, since Dan Levin had authorized even waterboarding the previous August? And did they use waterboarding, even though they claim not to have?

More importantly, where is Hassan Ghul? He has not surfaced at Gitmo. Are they trying to hide the reasons why?

Update: Corrected that Comey’s conversation was with Ted Ullyot, and not with Gonzales directly.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

24 replies
  1. WilliamOckham says:

    I was just about to comment about this. I think we need to start asking if they tortured Ghul to death. There has to be some reason for the big rush in April/May 2005.

      • klynn says:

        I do not think he is the first death. Specifically, is he the first death due to combined techniques? The “issue” of “combined” has been weighing in the background of the torture debate with many questions irt Comey’s response. This is one step closer to confirming the “weighted import” irt “combined” and may end up the turning point.

    • emptywheel says:

      No, the DOD deaths were combined too. But I wonder if they combined Ghul to death using waterboarding then lied about whether it had been used.

        • emptywheel says:

          There’s one line on the second page of the emails that says, “I told the AG I was here to urge him not to allow the “combined effects” memo to be finalized. I told him it would come back to haunt him and the Department. I told him the first opinion was ready to go out and I concurred. I told him I did not concur with the second and asked him to stop it.”

          • Muzzy says:

            This is beyond maddening

            Comey’s email:

            “I told the AG I was here to urge him not to allow the “combined effects” memo to be finalized. I told him it would come back to haunt him and the Department. I told him ,the first opinion was ready to go out and I concurred. I told him I did not concur with the second and asked him to stop it.”

            The mutated NYT represenation with no reference to what he opposed re combined torture methods:

            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.

  2. klynn says:

    I agree, the NYT’s got the story completely wrong, including the interpretation of Comey’s emails.

    • readerOfTeaLeaves says:

      But haven’t we previously read that Comey and others at DoJ were really wary around this period of time — they believed that their phones were tapped (and it wouldn’t be surprising), and they were very guarded even when speaking inside the walls of DoJ?

      Also, recall that Comey was really alarmed when Frances Frago Townsend — supposedly the ‘Counterterrorism Chief’ — did not recognize the codename of a supposed-counterterrorism program?!

      Comey would have been an idiot not to ‘cover his butt’ ten kinds of sidewise.
      Since I don’t think there’s any basis for supposing him ‘an idiot’, it’s only reasonable to suppose that many of his communications were produced in an environment where he was trying to figure out WTF was going on — at least, when he wasn’t showing up at John Ashcroft’s beside to fend off Abu Gonzo and Andrew Card.

      All of which, FWIW, makes me really, really suspicious about the motives behind someone setting up Comey as some kind of ‘fall guy’ to make the OLC report seem somehow ‘less shocking’.

      As I read this, it really underscores what Comey was up against — and whatever it was sure wants that OLC Report to be misunderstood, ignored, scorned, etc, etc.

      Which begs the next question: will BabyDick be on teevee only twice each day next week, or will she be on four times each day getting out in front of this OLC Report? And is there going to be a betting pool for the Number of Times Gonzo Goes on Teevee?

      FWIW, according to EW’s Missing WH Emails Timeline, May 21, 22, 23 2005 there is no archive of OVP emails.

      Which just makes this whole ‘make Comey look bad’ business all the more suspicious, IHVHO.

  3. perris says:

    In other words, the May 10, 2005 authorization to use combined techniques was designed to give legal cover for something that had already happened.

    is this the point that comey found out about and wouldn’t sign off on, to which they had to get memo’s declaring legality?

  4. SaltinWound says:

    I don’t know if the money we contributed is making any difference in the time you have available or if you’re in the process of shifting out of some other obligations, but the pace at which these revelations are coming is amazing.

  5. WilliamOckham says:

    Maybe Ghul didn’t die. Maybe the sleep deprivation drove him insane. The memos’ discussion of hallucinations caused by sleep deprivation always seemed odd to me. Maybe the reason we have heard about him is that they have him stashed away somewhere because some torture-induced psychosis.

    We just need the press to start asking…

    • Muzzy says:

      Re:

      Maybe the reason we have heard about him is that they have him stashed away somewhere because some torture-induced psychosis.

      Last time I checked, the brain is an organ.

      Persistent treatment refractory psychosis would certainly qualify as evidence of severe organ damage.

  6. Mary says:

    While you have to focus on the NYT sources spin, you also have to realize that the Comey emails are real clearly CYA papering of the file and have their own self serving (and friend serving) aspects. And realize that a big chunk of what he was saying about the combined memo is that he could make it ok in his view if they limited it to the one person VP’s office was so concerned about and let him make the factual adjustments to the memo (getting the facts in line was what would take the time) to narrow not what was done, but who to, and he’d be happily good to go with it.

    He was ok with using DOJ to paper over and grant de facto immunity for the torture that the WH and OVP and DOJ had been directly involved with – he just wanted the memos to be narrow to safe existing butt and not to allow for future depravity. Remember he was do ing all this a year after Abu Ghraib pictures – while DOJ was fighting the Arar case with his affidavit – after he had already come off of the Higazy “investi-up” (the seemingly now mandatory DOJ investigation solely for the purpose of cover up) and while he let Clement go to the Sup Ct and make the *we don’t do things like torture* representations to the court – etc.

    In any event, I think that one of the things that struck me as so horrible about the “combined” opinions was one of the issue he raised and was one that stuck with Ullyot, who tried to (apparently incorrectly per Comey) summarize Comey’s concerns as being “the prospective nature of the opinion and its focus on ‘prototypical’ interrogation”

    That is what the combined technique memo does – it throws out the “high value al-Qaeda” and necessity and ticking time bomb info underpinnings that even Yoo had tried to tack on, and said – hey, all these things can be done to anyone we detain, whether they are high valude al-Qaeda, or even an enemy combatant, or not – have detainee, can strip ‘em and head bang ‘em into walls and anally assault ‘em (oh yeah, that part of the interrogation program got kinda skipped in the memos didn’t it – along with the druggging parts)and use hypothermia and sleep deprivation etc – all for no ticking time bomb scenario at all, but just because we can.

    I understand you want to put the emails into perspective that the NYT doesn’t give them, but Comey was even in his cya approach going to go along with the combined memo, if they narrowed it to the guy they were trying to protect. That – with all those pictures from Abu Ghraib on his plate. I really want to have that ability that some have to say “God forgive him” but it’s not in me. And he went on from his CYA memos to the Padilla press conf (and again, no effort to correct the Sup Ct record with all he learned from all of that)

    Oh well – on the significant issues front, he is also warning Gonzales about the video(s) that he (Comey) had “heard about” in May of 2005 and they end up destroyed in Nov, but why was no court every put on notice? And Rosenberg – who is his emailpal – is after all the guy who went on to sit shotgun on the office that should have been producing that evidence long ago.

    If Comey knew about the videos and knew about the litigations and knew that this was all going to come out at some point – where’s his damn directive going to Rizzo to not destroy evidence? Where’s his inquiry into whether that info had been provided to the various courts with evidentiary orders outstanding?

    Oh well – I gotta go do something productive. I hope you can objectively pull out the interesting stuff – I just look at someone who was given all of Comey’s gifts and his ability to lead and look at what he did with it and can’t help but think that someone who knew better and could lead is more culpable than the weakminded and weakwilled. OTOH – he’s really good at PR.

    Buy the boy a smiley face pin.

    • bmaz says:

      Mary, I carried the “fuck Comey” flag while you were away. You do it with such elegance though.

      Better question, Can The Bird do the distance today???

  7. WilliamOckham says:

    By the way, there’s is at least one report on what happened to Hassan Ghul:

    According to Rangzieb Ahmed, a British national of Pakistani origin, Ghul was in a Pakistani prison in 2006, but disappeared in January 2007.

    Hassan Ghul – he was captured in Iraq in 2004 and he was in the cell left to me. I talked to him when no guards were around me and he told me that the CIA kept him in a secret location for 2 years. After 2 ½ years they handed him to the Pakistan authorities. I believe he was a Pakistani national. He was there when I arrived and he was moved in January 2007.

    • Leen says:

      Which law is it that says we are not supposed to ship prisoners off to countries that are known to torture?

  8. Jkat says:

    the more this unwinds .. the more obvious it becomes the bush administration was just a collection of cheap two-bit thugs ..

  9. Jkat says:

    and dammit .. y’all are doing one hell of job dissecting this story ..

    ya knows what ?? i used to read the NYTimes religiously .. back when it was a liberal rag .. but after the judy..judy..judy and gordon debacles on WMd’s and plame .. i quit buying it .. and today ..some years later .. i wouldn’t put a copy of it in the outhouse for folks to wipe their ass with .. the old grey lady has been turned into a chancre riddled whore ..

    we need to prosecute these bushco bastards .. this can’t be allowed to stand unanswered .. obama be damned ..

    [mention of violence removed]

  10. Jeff Kaye says:

    Hallucinations due to sleep deprivation are a well-recognized phenomena. The Army Combat Stress Field Manual discusses it, for instance. I doubt it came from empirical evidence re torture of Ghul (even if Ghul did experience same). Even the inept and dishonest authors of the OLC torture memos should have known about such hallucinations.

    Ghul likely is either dead, as speculated here, or in a foreign prison, which was al-Libi’s fate, until discovered just before his death (or murder, or suicide).

  11. Jkat says:

    oh geeze mr/mz moderator .. what you struck wasn’t a reference to violence .. let me tell you what’s violent:

    this collection of bushco sad-sacks who implemented a program which led to over a hundred prisoners-in-our-charge to be interrogated-to-death .. beaten to bloody pulps .. now ..that’s violence ..

    i’m a medically retired marine warrant officer .. i take the geneva accords very seriously .. i actually believe in the now-quaint concept of our nation’s “sacred honor” .. and our obligation to treat prisoners in our charge humanely ..and our obligation to pursue charges against those who have grossly broken our laws ..

    and .. hey .. what these asshats have done really fries me .. i can’t think of a form of punishment which wouldn’t be appropriate ..

    after investigation and conviction.. of course …

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