Those Undated “Legal Principles”

As I noted in an update to my post asking for the unsigned, undated document authorizing the expansion of the torture program from one applying just to Abu Zubaydah to one that could be exported around the world, I have found the document. Or rather the documents–they appear to have been revised over time. Here are three that were included in last night’s document dump.

April 28, 2003: Hand-carried from Scott Muller to John Yoo

June 16, 2003: Faxed from CTC to Patrick Philbin

March 2, 2004: Faxed from Scott Muller to Jack Goldsmith

The three are worth reading in sequence to see how the CIA’s gross rationalizations of patently illegal behavior evolved over time. The April document appears to be a draft developed with John Yoo. The second is a "final" version, apparently written by CIA, sent to Philbin for his files. And the last is a request from Scott Muller to get Jack Goldsmith to reaffirm the three August 1, 2002 memos, as well as the June 16, 2003 version of the legal principles, and add water flicking and water dousing to the approved techniques (which would not be done, ultimately, until the May 2005 memos).

The first copy includes one claim that was removed from the document entirely.

The United States is at war with al-Qa’ida. Accordingly, US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.

I guess we know where the culture that seemed to allow the raping of prisoners came from.

The June 16 document, in addition to shifting language about the US reservations on the Convention Against Torture and on whether international law imposes "no limitation" (April 28) or "no obligations" regarding the treatment of detainees, also had four paragraphs pertaining to the application of the Federal War Crimes statute, the torture statute, and the Fifth, Eighth, and Fourteenth amendments (note, those paragraphs appear in a second file included with the April 28 document, but must not have been part of it originally, because the fax cover sheet to Yoo noted only 3 pages).

In other words, sometime between April and June of 2003, some decided to replace Yoo’s broad "US criminal statutes do not apply" with a discussion of specific statutes that, for some pretty bogus reasons, they claimed did not apply. Notably, Yoo was replaced on this issue with Pat Philbin in the interim period.

One detail of note on these documents: consider how they used this paragraph to exempt CIA interrogations from US law (and note, the paragraph below is from the June 16 version, which has several lines added from the April 28 version). 

CIA interrogations of foreign nationals are not within the "special maritime and territorial jurisdiction" of the United States where the interrogation occurs on foreign territory in buildings that are not owned or leased by or under the legal jurisdiction of the U.S. government. The criminal laws applicable to the special maritime and territorial jurisdiction therefore do not apply to such interrogations. The only two federal criminal statutes that might apply to these interrogations are the War Crimes statute, 18 USC S2441, and the prohibition against torture, 18 USC S2340-2340A.

Of course, some time around 2003, the CIA moved some of its HVDs to Gitmo, which I imagine would qualify as a building that the US leased. The whole jurisidictional issue was one that continued to be a weak chink in their rationalizations.

Finally, some points about authorizations. The first review appears to have involved Muller and Yoo. The second came from CTC, not OGC, with the comment,"For your records–copy of final legal summary." Which suggests the final approval for that document came from CIA, and possibly from CTC instead of OGC (I’m reminded that Jonathan Fredman was the Counsel over there–who was very involved in carving out legal space for torture). But when Muller asked Goldsmith to reaffirm his support for this document in 2004, he claimed, the Legal Principles document,

was prepared with OLC’s assistance and received the concurrence of your office in June 2003. 

I’d sure like to see what that "concurrence" consisted of. Because from the fax traffic, it appears that Philbin was faxed a finalized version of the document in June 2003, which seems to fall far short of "concurrence."

Finally, correct me if I’m wrong. But the Goldsmith fax shows 13 pages–but we’ve only got 8 of those 13 pages. Also note the timing–it was sent after the capture of Hassan Ghul (for whom Bradbury would have to write a retroactive authorization of water dousing in May 2005) and just days before Taguba submitted his report on the torture at Abu Ghraib.

Update: Goldsmith sent a response on June 10:

 I have further inquired into the circumstances surrounding the creation of the bullet points in the spring of 2003. These inquiries have reconfirmed what I have conveyed to you before, namely, that the bullet points did not and do not represent an opinion or a statement of the views of this Office.

14 replies
    • klynn says:

      You beat me to that point! I was just reading about that at History Commons. Again, EW, this find is as big as 183.

  1. scribe says:

    Don’t forget that the S.Ct. pretty conclusively settled the whole issue of whether Gitmo was, or was not, within the jurisdiction of the US, in the 2004-2005 time frame.

  2. Hmmm says:

    About Obama administration’s strategy, and so I hope not completely OT — I crouch in anticipation of a whack-down from bmaz for even suggesting the following, but: The manner in which the Monday dump was orchestrated (I mean the sheer volume of shit-stirring it was absolutely guaranteed not just to initially generate, but to probably build over time as the issues become more widely understood) is not inconsistent with having been intentionally designed and timed (a) to morally neutralize the congressional R’s (or at least the leadership, such as it is) by pinning all of this and Bush on them, and (b) to operationally divert them; both at exactly the time when their focus is most needed for the health care/insurance battle. If so, that would be shrewd.

    On the other hand, there may also be an effect of dividing (and thus diminishing the cumulative effect of) the attentions of progressives who have of late (I’m lookin’ at you, Jane!) manifested as a significantly pesky thorn in Rahm’s, and perhaps also PBO’s, side. From our side, that would be crappy of them (quelle surprise!); from their side, that would be even shrewder.

    That suggests the following practical question (and this is not at all to denigrate anyone for dedication to either issue, obviously both are key): At this crucial juncture, how can progressives best find, and then maintain, the right mix of health pressure vs. torture pressure? We may have less information, but fortunately we’re collectively smarter.

    • lllphd says:

      been thinking quite similar thoughts. and i hope your scenario is the case. i just get the sense that obama is not inclined to move radically or quickly in any direction whatsoever; save that for the basketball courts. he fully recognizes that this is a massive aircraft carrier that has to reverse course in very troubled waters, and being at the helm, he must not make any sudden moves or the whole thing tanks.

      it seems so easy for progressives to demand he stand up and do the ‘right’ (so ironic) thing. but, as the elected president of a democratic republic, he has to acknowledge all those folks whose ‘right’ is orthogonal to his/our own. remember; students from his constitutional law courses said they never knew which side he was on and he made them argue all sides. as president, he has stated he wants to lead within the limits of the law, which – to bill maher’s great chagrin – is the antithesis of how bush/cheney just shoved things through.

      i want to recover from this nightmare, but i don’t want it at the expense of bloodshed or destruction. that will take more time, but it will not only be less wrenching, it also has a much greater chance of sticking for the long haul. i somehow believe obama gets this. he seems to have amazing foresight and remarkable scope and vision. what we progressives are tending to demand of him is sometimes i think a bit too immediate and granular, and we tend to lose sight of the big picture.

      so back to holder’s position. i don’t know if it’s shrewd or cowardly, in that he could just be taking the easy way out, republican prosecutor, narrow parameters and all that. but look at how the repugs are responding to just this little shift already; they’re pulling out all the stops. we can’t ignore that piece of the package. if we let durham unearth stuff that forces further action, so be it, and all the better.

      meanwhile, congress should grow a pair and start a real, live, watergate-style hearing. god knows there’s enough info out there to hang a dozen bastards, yet they teach our students and inflame our masses!! in addition to knowing we must move carefully and slowly, i think obama feels that most of these things should be done by congress, as it represents the people. plus, its power has been so diminished of late, it truly does need to grow a pair.

      i’m just waiting for someone – i hope it’s obama – to finally FINALLY stand up and demand: “You’ve done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?”

  3. Revroe says:

    Wherever/whomever….should be the mantra for this investigation. Once they get testimony from the subordinates who were told to engage in this activity, this will move up the chain of command to Bush & Cheney and everyone inbetween. Why do you think Tricky Dick is out there today trying to do some damage control? He knows his goose is cooked!

    **Time for the wheelchare charade again, Dicky?

  4. bobschacht says:

    Just have time for a driveby, but noticed this in your lead paragraph:

    Or rather the documents–the appear to have been revised over time.

    Should the second “the” be a “they”?

    Again, thanks for your quick and insightful analyses!

    Bob in HI–>AZ

  5. Garrett says:

    The United States is at war with al-Qa’ida. Accordingly, US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.

    I guess we know where the culture that seemed to allow the raping of prisoners came from.

    Actual rape of prisoners, that I know of, was only in Iraq. Where Geneva Conventions were sometimes acknowledged to inarguably apply, and sometimes at least least acknowledged as a consideration, depending on the detainee. Some detainees had an actual “EPW” status.

    They managed to draft authorization policies for Iraq first referencing the importance of the difference, and then completely ignoring it anyways.

    Their ability to turn logic on it’s head, about who needs what level of protection why, as needed to justify just about anything anywhere, is impressive.

  6. bobschacht says:

    Thanks, EW, for paying attention to the evolution of this conspiracy. Your analysis seems to point to documents that are NOT included in the available records.

    I just hope that the genie is far enough out of the bottle right now that it will be impossible to put it back in the bottle.

    On the Diane Rehm show this morning, discussing these documents, the panel seemed convinced that the torture crimes were not prosecutable for a variety of reasons. I hope they’re wrong.

    Holder’s instructions, however, show that Durham’s mandate is essentially to commence to get ready to begin, but not necessarily to DO anything. What I do like, however, is that Holder is finally willing to admit that these things *must* be investigated, and not just swept under the rug.

    Bob in HI–>AZ

  7. TheraP says:

    EW, don’t forget that there were reports that the consulting psychologists collaborated in designing legal arguments fictions to enable the torture.

    I can dig out a link for that (if you need it), but I believe it was either in a WaPo or NYTimes article (both of which came out on the same day this Spring). I truly think we have a collaboration of totally unethical professions here. People willing to cross any line, go any distance – for the almighty dollar and/or to curry favor. Disgusting!

  8. Flugendorf says:

    Could I just say that I’m structurally in awe of this paragraph as it is in the last two versions:

    The interrogation of al-Qa’ida detainees does not constitute torture within the meaning of section 2340 where the interrogators do not have the specific intent to cause “severe physical or mental pain or suffering”. The absence of specific intent (i.e., good faith) can be established through, among other things, evidence of efforts to review relevant professional literature, consulting with experts, reviewing evidence gained from past experience where available (including experience gained in the course of U.S. interrogations of detainees), providing medical and psychological assessments of a detainee (including the ability of the detainee to withstand interrogation without experiencing severe physical or mental pain or suffering), providing medical and psychological personnel on site during the conduct of interrogations, or conducting legal and policy reviews of the interrogation process (such as the review of reports from the interrogation facilities and visits to those locations). A good faith belief need not be a reasonable belief; it need only be an honest belief.

    Why all that wild absurd stack of ways in the paragraph that would all “establish” that the person didn’t have intent to cause “severe mental or physical pain or suffering”, or didn’t believe it was caused? That climaxing last sentence answers the question: Because it doesn’t bleeping MATTER WHY the person is of the opinion that no such severe pain or suffering is involved! Anything will do. Just: “Is this your opinion?” “YES!”


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