The “Legal Principles” Timeline

I wanted to do a "Legal Principles" timeline to better understand why the document was developed and what more we might learn from it.

As a reminder, the "Legal Principles" document is a set of bullet points CIA’s Counterterrorism Center developed with the participation of John Yoo. Though the document was undated and unsigned, CIA tried to claim it counted as "DOJ agreement" an official OLC opinion authorizing key parts of their torture program.

It appears the "Legal Principles" document claimed to do three things:

  • Authorize the use of torture with other "al Qaeda" detainees, even those not described as "High Value"
  • Legally excuse crimes, potentially up to and including murder
  • Dismiss CAT’s Article 16 prohibition on cruel and inhuman treatment

As such, the document formed a critical legal fig leaf leading up to the release of the IG Report (at which point OLC clarified in writing that it was not a valid OLC opinion). I suspect the need to replace this explains some of the urgency surrounding the May 2005 OLC opinions.

John Yoo’s Original Approvals

The early approvals for torture focus largely on the torture statute to the detriment of other laws. Furthermore, the specific approval for torture–the Bybee Two memo–only covered Abu Zubaydah.

July 13, 2002: John Yoo writes Rizzo a letter outlining "what is necessary to establish the crime of torture."

August 1, 2002: Bybee memos establish organ failure standard and support necessity defense, state that interrogation would not be subject to ICC, and approve ten techniques for use with Abu Zubaydah.

Crimes Create the Need for New Approvals

It appears that the deaths in custody in November and December 2002 may have been the impetus for the "Legal Principles," in which case they can be understood as a way to dismiss crimes–including murder–committed on detainees.

November, December 2002: Deaths in CIA custody, (probably) abuse of al-Nashiri.

December 2002: Scott Muller meets with OLC (and Criminal Division) and briefed them on scope and breadth of program.  

April 28, 2003: Muller has draft of Legal Principles hand-carried to John Yoo. It states:

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.

CIA Delivers "Legal Principles" to Philbin as Final Document after Yoo Leaves

In 2003, John Yoo left the OLC, which appears to have created legal exposure for CIA because they had the understanding that his authorizations were carte blanche authorizations. CIA tried to deal with this by presenting Yoo’s carte blanche to his replacement, Pat Philbin, as a fait accompli.

June 16, 2003: On June 16, CIA sends two drafts of the document internally. One (Other-25) is described this way:

This is an 8-page document, including two routing slips and a classification cover sheet. The document summarizes the law applicable to the CIA’s detention and interrogation program of captured detainees. The document contains confidential communications between a CIA attorney and CIA officers relating to a matter for which the officers sought legal advice. It was prepared by the CIA attorney or employee with the joint expectation of the attorney and employee that it would be held in confidence, and it has been held in confidence. These privileged attorney-client communications are thus protected from disclosure by Exemption b(5).

One (Other-23) is described this way:

This is a 4-page document, including a router page, that summarizes the applicable law to the CIA’s detention and interrogation program. This document contains pre-decisional deliberative process information and confidential communications between a CIA attorney and CIA officers relating to a matter for which the officers sought legal advice. It was prepared by the CIA attorney or employee with the joint expectation of the attorney and employee that it would be held iu confidence, and it has been held in confidence. In addition, the information was produced by a CIA attorney in anticipation of litigation.

Now, I’ve placed these documents in this order because the Vaughn Index that describes them seems to present the documents in descending order, from most recent to older. While both appear to be drafts of the "Legal Principles" document from the description and the timing, there are some differences:

  • Other-25 appears to have been forwarded to a second recipient; Other-23 appears to have been sent just once
  • Other-25 appears to have five pages of content; Other-23 (and the version sent to Philbin that day) have just three
  • The Vaughn Index claims Other-23 was produced "in anticipation of litigation;" it makes no such claim for Other-25
  • The Vaughn Index claims Other-23 contains deliberative discussions; it makes no such claim for Other-25

There’s not all that much that we can conclude from these differences, except that the document may have been trimmed from five pages to four on June 16 and that one of these is more closely tied to "anticipated litigation" than the other. 

Presumably after those two versions were exchanged at CIA, someone at CTC sent a copy (of the three-page document, plus router and classification sheet) to Pat Philbin, who had taken over many of John Yoo’s duties at OLC. The document was sent with the message,

For your records–copy of final legal summary.

The existence of two versions (of different length) of this document on the same day the "final" was sent to Philbin suggests CIA may have quickly finalized the document so as to present Philbin with a purportedly final document.

The Legal Principles Limits the Law, Dismisses CAT’s Inhuman Prohibition, and Adds Techniques

While this version does not have the "criminal statutes do not apply" language from the April 28 draft, it does have this passage limiting the applicability of the law to the Torture and the War Crimes statutes.

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.

With that language, it seems, the "Legal Principles" document excused things like murder.  As such–particularly with the language about "anticipation of litigation"–the document may partly serve to "legalize" the crimes committed against detainees in November and December 2002.

The document also dismisses the application of the Convention Against Torture’s prohibition on cruel and inhuman treatment, first of all, by simply making shit up.

Because of US reservations to the Convention, the US obligation to undertake to prevent such treatment or punishment extends only to conduct that would constitute cruel and inhuman treatment under the Eighth Amendment or would "shock the conscience" under the Fifth and Fourteenth Amendments. Additionally, the Convention permits the use of such treatment or punishment in exigent circumstances, such as a national emergency or war.

The "Legal Principles" go on to further dismiss CAT’s cruel and inhuman prohibition by claiming those same amendments don’t apply.

The interrogation of members of al-Qa’ida, who are foreign nationals, does not violate the Fifth, Eighth, and Fourteenth Amendments because those amendments do not apply. The Due Process Clauses of the Fifth and Fourteenth Amendments, which would be the only clauses in those amendments that could arguably apply to the conduct of interrogations, do not apply extraterritorially to aliens. The Eighth Amendment has no application because it applies solely to those persons upon whom criminal sanctions have been imposed. The detention of enemy combatants is in no sense the imposition of a criminal sanction and thus the Eighth Amendment does not apply.

Having "authorized" murder and cruel and inhuman treatment, the "Legal Principles" proceeds to add new techniques to the torture regimen beyond those approved in the Bybee Two memo, including:

  • Isolation
  • Reduced caloric intake
  • Deprivation of reading material
  • Loud music or white noise
  • Abdominal slap
  • Wall standing
  • Use of diapers

That is, this document claims to reflect OLC authorization for the confinement techniques CIA was already using and for the new coercive techniques that had already been put into place.

Pat Philbin and Jack Goldsmith Object to the "Legal Principles"

June 17, 2003: The day after Philbin received the document, he met with the CIA and–at least according to Jack Goldsmith–told them it did not count as an OLC opinion.

OLC also believes that the status of the bullet points was made clear at a meeting on June 17, 2003 soon after the Deputy Assistant Attorney General with whom OGC had consulted on the bullet points had departed from the Department of Justice.

March 2, 2004: That didn’t stop CIA from trying again the following year with Goldsmith. In March 2004, the CIA included the "Legal Principles" document in a list of documents they asked Goldsmith to "reaffirm" (the other three were the August 1, 2002 memos). In that letter, Muller claimed,

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

Now, there’s a reason Muller pretended the "Legal Principles" document was valid even after Philbin had told him it wasn’t. As Muller explains, 

We rely on the applicable law and OLC guidance to assess the lawfulness of detention and interrogation techniques. For example, using the applicable law and relying on OLC’s guidance, we concluded that the abdominal slap previously discussed with OLC (and mentioned in the June 2003 summary points) is a permissible interrogation technique. Similarly, in addition to the sitting and kneeling stress positions discussed earlier with OLC, the Agency has added to its list of approved interrogation techniques two standing stress positions involving the detainee leaning against a wall.

That is, CIA had relied on the document to introduce new torture techniques (and in the March 2004 letter was requesting authorization for two more–the water flick and water dousing). Of note, these are techniques that would later be authorized for Hassan Ghul, who was already in custody in March 2004, so it’s possible they used those techniques with him even before they requested this authorization.

June 10, 2004: Jack Goldsmith, though, was having none of this. In a June letter that reflects an earlier rejection of the bullets, Goldsmith informs the CIA that the "Legal Principles" document does not constitute an official OLC opinion.

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.

Note the timing of this: Goldsmith doesn’t indicate when he "conveyed [this message] before." But by this point, Goldsmith would have the IG Report in hand, which cited the "Legal Principles" document as a central authorization for torture and claimed (in spite of the Philbin meeting and an earlier Goldsmith message) that the document was an official OLC opinion.

OLC Withdraws Bybee as CIA Releases IG Report it Knows to be Inaccurate

Then, in a series of events that are probably related, OLC prepared to withdraw the Bybee One Memo (the "organ failure" document) as CIA rushed out the IG Report it knew to misrepresent DOJ’s authorizations.

June 15, 2004: Goldsmith informs Ashcroft he will withdraw Bybee Memo and resigns.

June 17, 2004: Jack Goldsmith announces his resignation.

June 18, 2004: Goldsmith writes Tenet telling him the IG Report mis-represents Ashcroft’s statements and falsely presents the "Legal Guidelines" document as official OLC opinion.

June 22, 2004: In an off-the-record briefing, Comey, Goldsmith, and Philbin renounce Bybee Memo. Rizzo sends Philbin copy of earlier approval from Yoo. Muller responds to Goldsmith saying he had forwarded the complaints to John Helgerson, but would release the IG Report that week. 

The Exposure on Cruel and Unusual Treatment

All of which explains a number of things, not least the urgency behind the push for an opinion on whether the torture program complied with CAT’s prohibition on cruel and unusual treatment.

July 15, 2004: CIA briefs Jello Jay and Pat Roberts on IG Report. At that point CIA claims to be seeking OLC’s legal analysis on whether
the program was consistent with the substantive provisions of Article 16 of the Convention Against Torture. 

Later July, 2004: CIA briefs Principals; they agree to seek an OLC memo on CAT.

May 30, 2005: Bradbury writes a memo claiming the torture program does not violate CAT’s Article 16.

The Bradbury memo–in which he replaces Yoo’s claim that there is an exigent exception in CAT with a claim that because torture was necessary, it can’t shock the conscience–is legally not much better than the "Legal Principles." Jim Comey appears to have been objecting up to the day before the CAT memo was released (to say nothing of the Combined Techniques memo).  But the CAT memo completes much of the work that the "Legal Principles" document was meant to do: to exempt treatment clearly designed to humiliate from prohibitions on cruel and inhuman treatment. 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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 the Guardian, Salon, and the Progressive, 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 and dog in Grand Rapids, MI.

88 replies
  1. plunger says:

    Legally, the United States is not “at war” with any country. Period. Illegally, the United States is committing acts of aggression against numerous countries.

    That’s why you’ll perpetually hear these weasel words out of Cheney like “in essence”, “practically speaking” etc. preceeding to use of the term “at war.”

    Having your cake and eating it too is found nowhere in US Statutes or the Constitution.

    Just as you cannot be “technically not pregnant,” and “pregnant” at the same time, you cannot be “at war” and simultaneously “not at war,” just because war was never officially declared.

    Cheney said right out loud in an interview a couple years ago on Larry King Live that we are (”in effect”) “at war” and that these detaineees are “prisoners of war” (”if you will”) – to be held until the end of the “war.” As there is no declared war, merely a strategy applied against an artificial foe (windmill) – the “war” will never end, as there is no “enemy” to sign any declaration of surrender with. These prisoners of “no war” are to be held forever, or simply killed.

    The most important service that can be provided by the blogosphere at this stage is to force reality and definition into the discussion. Words cannot have two different meanings where the law is concerned.

    These people were not “sort of” tortured. THEY WERE TORTURED. Torture is not “sort of” legal, TORTURE IS ILLEGAL, whether war is or is not declared.

    Those who died in US custody were in fact MURDERED…in the eyes of the law. There is no gray area here. They’re dead!

    Let the actual definitions of the relevant words speak for themselves, and call out those who would seek to twist the defitions of these words into knots as nothing less than traitors.

  2. ghostof911 says:

    Sibel Edmonds testifies that the CIA was working with al Qaeda in the Balkans up to September 11, 2001.

    She may be testifying in person in Ohio on October 1.

    Dickless Cheney and Twitchy Bush, The Hague ‘10

  3. drational says:

    Excellent timeline, clearly depicting how the Bradbury memos were designed to retroactively immunize past actions for which there was no legal cover. Comey was particularly troubled by “combined” probably because the combinations were not even covered by the original Yoo bullet points. They were faced with the deaths of the salt pit detainee who died hanging from the ceiling in a diaper after water dousing, and Habibullah, who died hanging from the ceiling, hooded and in a diaper with severe trauma to his legs. Bradbury’s tryout at OLC culminated in the retroactive immunity for torture memos.

  4. WilliamOckham says:

    Excellent work. I have a couple of questions. I haven’t gone back to review it yet, but Yoo’s March 2003 memo for DOD has some similarities to the wording in the ‘illegal principles’ document. Also, I think the relationship between the IG report and this document is more complex than you make it out to be. It appears that the CAT issues were first raised by the IG’s office and Yoo’s quickie document was a response to that. At the time the IG’s report was written, this appears to be mostly true:

    However, in this process, Agency officials have neither sought nor been provided a written statement of policy or a formal signed update of the DoJ legal opinion, including such important determinations as the meaning and applicability of Article 16 of the Torture Convention. In July 2003, the DCI and the General Counsel briefed senior Administration officials on the Agency’s expanded use of EITs. At that time, the Attorney General affirmed that the Agency’s conduct remained well within the scope of the 1 August 2002 DoJ legal opinion.

    Based on that briefing, Ashcroft gave them that affirmation. However, in other parts of the report, this briefing is treated pretty skeptically. For example:

    99. …According to the General Counsel, the Attorney General acknowledged he is fully aware of the repetitive use of the waterboard and that CIA is well within the scope of the DoJ opinion and the authority given to CIA by that opinion. The Attorney General was informed the waterboard had been used 119 times on a single individual.

    100. Cables indicate that Agency interrogators [redacted] applied the waterboard technique to Khalid Shaykh Muhammad 183 [long redaction]

    It’s no accident that the contradictory evidence is presented immediately after the report of the briefing. You have to read between the lines a little, but the IG is pointing out that the DCI and GC gave an inaccurate briefing. Helgerson wants us to ask the question, if they got that detail wrong, how much did they really tell Ashcroft and how much is his oral concurrence worth if it is based on misinformation.

    • emptywheel says:

      WO

      I absolutely agree with you that these ambiguities exist throughout this document.

      But I don’t think we can explain why or what Helgerson was trying to do–there’s just no evidence one way or another. While it’s true he succeeds in laying doubt, it’s also true that he allowed CIA to rush this out without DOJ revisions, which is pretty improper given the DOJ equities involved.

      It may be he’s trying to retain a more doubtful stance in the face of Cheney’s complaints, for example. It may be that Rizzo weakened this (recall that there was a big fight there as well). Or it may be that he just completed what he could with limited authority.

      But once again, in the Exec summary, the report doesn’t question the OLC authorizations at all.

      • WilliamOckham says:

        Rush it out? The report had been substantially complete for nearly 6 months, delayed for 3 months while Cheney beat up on Helgerson and then after the report is published, Goldsmith panics about what is in the report. You need to read OLC 26 and OLC 28 to fill out this post.

        Goldsmith read the report, realized that Ashcroft had blessed a whole lot more than he had realized and started firing off CYA letters to the CIA. Painting Helgerson as the bad guy in this makes no sense.

        • emptywheel says:

          WO

          I am not making Helgerson out to be the bad guy. I am saying we don’t know. You, on the other hand, are suggesting you know him to be the good guy. Now maybe you’ve got evidence for that, but thus far, all you’ve shown is that in the body of the text he shows ambiguities that he doesn’t show in the summary. I don’t see definitive evidence one way or another–which is why I keep saying we don’t know.

          That said, I’m not sure whether we know that “Ashcroft had blessed a whole lot more than he had realized.” I think the truth is probably in the middle, but we don’t have evidence either way and CIA is withholding one thing–the powerpoint–that might help us learn about that approval. I do know the language in the summary certainly shows no doubt. I also know there are abundant other examples where CIA (not Helgerson, but CIA) lied about material in this report, and therefore the default should not necessarily be that in this one instance CIA is correct, when most of the times for which we have independent evidence, CIA is lying.

          But one thing is certain. Goldsmith issued written objections on Jun 18. The normal response to such objections would have been to factor them into hte report. Instead, CIA said, “we’re forwarding your objections and oh by the way we’re releasing the report right now” on June 22. So that by the time Helgerson responded 10 days later, it was too late! Surprise surprise!!

          Again, I don’t know whether Tenet or Rizzo or Muller or Helgerson is responsible for all this–most likely it’s Muller and Tenet. But I don’t know which is why I say I don’t know.

  5. Professor Foland says:

    To follow up on Plunger’s point, in at least one of his Congressional testimony appearances (2/6/06), AGAG spent a lot of time to say that we were not in a state of war:

    GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force. I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you’re possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we’re not talking about a war declaration. This is an authorization only to use military force.

    [My italics]

    • plunger says:

      Thanks for mentioning that. From my perspective, this is THE key point. How can we be having a conversation about “legal principles” as applied to an illegal (or at best, undeclared – therefore illegal) act?

      They intentionally created this amorphous blob of Jello, that can change shape, color and form to suit any argument they choose to make, even opposing arguments to those previously made – all to provide cover for moral cowards to “justify” the use of torture in each of our names.

      Welcome to the world of discernible reality. Let the dictionary be your road map.

    • tjbs says:

      So can an ACT amend the constitution by ignoring the amendment requirements found in said constitution?
      War Powers ACT
      Authorization to Use Force ACT

      • BillE says:

        Yes. Apparently so. This is unless the Supremes say no, congress makes the law of the land. And, I guess they don’t mind this war powers thingy or else they haven’t had a reason to rule on it.

    • Hmmm says:

      …AGAG spent a lot of time to say that we were not in a state of war:

      I thought that was just a transparent, in fact downright puerile, ploy to try to make any possible war crimes liability disappear in a puff of logic. As the though the reasoning were: if there’s no war, there can’t be any war crimes.

    • emptywheel says:

      I think bc they had to get Dan Levin out of the way, who wasn’t going to write as expansive a memo as they wanted. And I think Bradbury was fighting internally for about two months before this came out.

  6. orionATL says:

    no doubt i’m reading it the wrong way but

    “what is necessary to establish the crime of torture.”

    certainly summarizes what the cia/doj legal eagles were trying to accomplish.

  7. acquarius74 says:

    Thank you, EW, for another clearing up of this monstrous web of criminality.

    This whole mess has shocked my conscience from the get-go. The Torture Manual and its updates were all dreamed up out of the fantasy of 3 creatures without a conscience; John Yoo, David Addington, and the Head Bully, Cheney.

    Every day that the Torture Team remains free is a loud accusation that the USA has abandoned the Rule of Law above which no person stands.

    • emptywheel says:

      Actually, that’s pretty sad. My bro has a condo in the mountains. And with all the pine die-off bc of the beetles, they’ve been advocating replacing it with Aspen, because it grows quickly.

      But I guess that’s not going to work either.

      • JimWhite says:

        I agree it’s sad; we have to be on constant patrol here on our pines because of the beetles. It just seemed a strange juxtaposition to come up now when things like George Will advocating criminal investigations on torture and Bobo Brooks advocating that Obama should “go fundamental” on health care reform. The connections are breaking…

        • bobschacht says:

          EW,
          Thanks for another tour de force!

          As for the pines and beetles, the beetles are spreading because it is so dry. When the pines get enough water, the sap runs and keeps the beetles away. No sap, and the beetles get to do what they want. Probably another ripple in the global climate change tide.

          Bob now back in AZ

  8. tryggth says:

    A couple of links for anyone interested in the “Convention Against Torture”.

    Senate reservations:
    http://www1.umn.edu/humanrts/usdocs/tortres.html

    Comment on article 2 by the “Committee Against Torture” (monitoring body):
    http://daccessdds.un.org/doc/U…..penElement

    My favorite line in the comment:

    Likewise, the Committee’s understanding of and recommendations in respect of effective measures are in a process of continual evolution, as, unfortunately, are the methods of torture and ill-treatment.

    They could have added “the evolution of the legal sophistry justifying torture”.

    And finally, the fun tug-a-war in 2006 when the US presented its periodic report:
    http://www2.ohchr.org/english/…..cats36.htm

    • Mary says:

      Drive by:
      That’s depressing reading at that last link, the US report.

      @11
      But I don’t think we can explain why or what Helgerson was trying to do–there’s just no evidence one way or another. While it’s true he succeeds in laying doubt, it’s also true that he allowed CIA to rush this out without DOJ revisions, which is pretty improper given the DOJ equities involved.

      I’m not sure about the part about the DOJ. I don’t think that the CIA IG has any way to run his report by the DOJ for revisions, since a) he isn’t the DOJ IG and b) he doesn’t have some of the same inter-agency powers as IGs appointed under the general statute on IGs.

      I think he was pretty closely circumscribed to making a referrals to the AG re: criminal actions, which he did. I don’t think he was statutorily allowed to negotiate back and forth with DOJ on the content of his report. More interesting to me than his NOT including DOJ in the report issuance process (although directly including DOJ in report follow up by means of making criminal referrals) is the fact that he DID include OVP.

      The whys and wherefores of that imo are pretty interesting bc I don’t see any statutory authority to work wtih “fourth branch” on the issuance of the report to Congress. Was Cheneyco acting just as fourth branch, or was Cheneyco acting pursuant to a delegation from Bush higher authority? Or did the DCI as the supervisor of the IG make that decision, to run by Bush.

      I also don’t understand the timings on the report in general. There is no statutory Gang of 8 (or 4, or 2 vertebrates 2 invertebrates, etc.) authorization vis a vis an IG report. IIRC, Rockefeller and Harman got it in 2004, but the full intel committees did not get it until 2006 – is that right or am I misremembering?

      Bc the DCI had an affirmative statutory obligation as best I can tell to get the report to the FULL intel committees or, if he took it upon himself to decide to not provide the report to the full committees, then within 7 or at most 14 days after receipt he had to tell the committees he was holding the report back from them.

      http://www.law.cornell.edu/usc…..q000-.html

      It also looks to me like the IG responsiblities that go to the full committees in these instances (among others) :


      B [If his investigation includes someone who]
      (ii) holds or held the position in the Agency, including such a position held on an acting basis, of—
      (I) Executive Director;
      (II) Deputy Director for Operations;
      (III) Deputy Director for Intelligence;
      (IV) Deputy Director for Administration; or
      (V) Deputy Director for Science and Technology;
      (C) a matter requires a report by the Inspector General to the Department of Justice on possible criminal conduct by a current or former Agency official described or referred to in subparagraph (B);
      (D) the Inspector General receives notice from the Department of Justice declining or approving prosecution of possible criminal conduct of any of the officials described in subparagraph (B);

      [then] the Inspector General shall immediately notify and submit a report on such matter to the intelligence committees.

      I think the lack of interaction with DOJ vis a vis the report is interesting but from the statutory constructs, I would have expected it and especially given that there were outright referrals to DOJ for criminal review. That would be the context for them to issue their input and I can’t begin to understand how the criminal referrals to DOJ, even with the broad brush on the blanket DOJ approvals, would not have triggered Crim Div to notify the DOJ IG and/or OPR for an investigation. Unless, of course, the Crim review was being handled by lawyers who really didn’t want to interact with OPR over what was going on.

      Just me, but to me the more interesting parts of who got do to what and when with the report tie in to how Cheneyco got it at all statutorily (and if they had not right to it, how that wouldn’t be obstruction of Congress); how the crim referrals were handled (separate from the Report or by sending the Report itself, etc.); who (in the IG’s office and/or DCI) told the Senate and House Intel committees what (and when, where, how, etc.) and whether the 7 and 14 day time REQUIREMENTS of the legislation were met; it they were not met, whether obstruction was involved in the failure to meet those deadlines etc.

      And we really need info on who got the criminal referrals. THat can’t be “classified” – the names and titles of the people in Main Justice who got the original referrals and the process by which they delegated to ED VA and the people at ED VA involved in the review.

      And then there’s the fact that DOJ had Main Justice and ED VA actors, in addition to OLC lawyers and CIA lawyers and FBI lawyers – who all knew that there was evidence of coercion vis a vis detainee statements and that the court, including and up to the US SUp Ct, were being fibbed to, misled, misinformed or having their orders blatantly ignored while the Dept made a series of filings in multiple courts all of which were, well, I guess there’s a word other than lies, but I’m struggling to find it.

      • tryggth says:

        I also don’t understand the timings on the report in general. There is no statutory Gang of 8 (or 4, or 2 vertebrates 2 invertebrates, etc.) authorization vis a vis an IG report. IIRC, Rockefeller and Harman got it in 2004, but the full intel committees did not get it until 2006 – is that right or am I misremembering?

        Per one of the PDFs in the original post:

        The Committee had previously received one classified OLC opinion—an August 1, 2002, OLC opinion—in May 2004 as an attachment to a special review issued by the CIA’s Inspector General on the CIA’s detention and interrogation program. The opinion is marked as “Top Secret.” The Executive Branch initially provided access to this review and its attachments to the Committee Chairman and Vice Chairman and staff directors. On September 6, 2006, all Members of the Committee obtained access to the Inspector General’s review.

        No word on their structural composition.

      • Nell says:

        the Dept made a series of filings in multiple courts all of which were, well, I guess there’s a word other than lies, but I’m struggling to find it.

        “factually deficient”

  9. emptywheel says:

    One more point on this.

    Let’s be clear about what we’re talking about, with both the Yoo Legal Principles and the Ashcroft approval.

    We’re talking about whether, after people broke the law in 2003, individuals in DOJ chose to expand authorization retroactively to give those who broke the law cover, or prosecute them.

    In the case of both Yoo and Ashcroft, they chose to give retroactive cover (for Ashcroft, at least with respect to the 111 waterboards).

    But that doesn’t mean that CIA didn’t ignore DOJ guidelines. Goldsmith is absolutely correct that CIA ignored DOJ guidelines, absolutely correct that CIA tried to give itself cover for having done so on Yoo’s and Ashcroft’s retroactive approvals. And I thikn we can say that CIA has far overstated what the Legal Principles, at least, did in practice, and may have or may not have overstated what Ashcroft said.

    • WilliamOckham says:

      But that doesn’t mean that CIA didn’t ignore DOJ guidelines. Goldsmith is absolutely correct that CIA ignored DOJ guidelines, absolutely correct that CIA tried to give itself cover for having done so on Yoo’s and Ashcroft’s retroactive approvals. And I thikn we can say that CIA has far overstated what the Legal Principles, at least, did in practice, and may have or may not have overstated what Ashcroft said.

      I don’t understand your point.

      Helgerson said the CIA ignored DOJ guidelines long before Goldsmith did. Helgerson is the one who pointed out the retroactive approvals. Helgerson actually did something to stop at least certain forms of torture while Jack Goldsmith was twiddling his thumbs. I don’t know if that makes Helgerson a ‘good guy’ but he was clearly more effective than anybody at DOJ in having a real impact on the conduct of the Bush Administration. But the point I’m trying to make is that your claim that the IG report was known to be inaccurate goes way beyond the evidence at hand. Goldsmith claimed it was inaccurate, but he had no way of really knowing what happened in either the case of the so-called ‘legal principles’ document or at the Principals meeting.

      If you look at the changes that Goldsmith actually proposed, you will find that they are mostly meaningless. He wanted to replace the last sentence of paragraph 10 with these sentences:

      In July 2003, elected Principals of the National Security Council, including the Attorney General, were briefed concerning the number of times the waterboard had been administered to certain detainees. The Attorney General expressed the view that, while appropriate caution should be exercised in the number of times the waterboard was administered, the repetitions described did not contravene the principles underlying DOJ’s August 2002 opinion.

      Do we (or Helgerson) have any evidence that the sentence that Goldsmith proposes is more accurate than the one that is in the report? I think not.

      Goldsmith wanted “as described elsewhere in this Report” added to paragraph 17. I would have edited out that phrase if it had been in the original because it is superfluous.

      It’s hard to comment on his proposed changes to para 20 because the relevant parts are redacted. He wants to add ‘the torture provisions of’ between the word ‘violate’ and the phrase ‘the Torture Convention’. He is referring to a letter that discusses only the torture provisions of the Torture Convention. That sounds like he’s trying to cover for more Yoo’s bad lawyering.

      He wants changes to para 44 to replace sentences that begin with “According to the OGC” with sentence that explain OLC’s point of view. At most he is arguing that the report is incomplete, but his version would significantly distort what happened because he is removing what OGC claims it believed to be true at the time. In this instance, Goldsmith is trying to make the report less accurate to cover his own incompetence. The CIA sent him the document at least as early as March 2004 (and yes, he was busy that month), but he never responded until three weeks after he got a copy of the IG report and saw how bad it made him look.

      Goldsmith wanted substantial changes to para 48, the discussion of the July 29, 2003 meeting. Without dissecting them line by line, I’d say they boil down to wanting to assert that the only thing Ashcroft approved was the increased number of waterboarding. Goldsmith never actually asks for a change that would say directly that Ashcroft didn’t know about the differences from the way SERE waterboarding was done. Those differences were the real concern for Goldsmith. Why didn’t propose a strong statement to that effect?

      Goldsmith also proposed these changes to para 234 (that paragraph is totally redacted):

      Insert the following before the last sentence: “The General Counsel’s statement is consistent with the 2003 document drafted by OGC in consultation with OLC. In the General Counsel’s view, he had understood, in good faith, that this document represented OLC’s opinion on the subjects it addressed. OLC has stated that it does not consider that document, which (unlike an OLC opinion) is not dated or signed, either to be an OLC opinion or to reflect formal OLC advice. OLC has also stated that it has not fully analyzed or evaluated some of the legal positions set forth in the document.”

      Does that sentence make the report more accurate? I don’t know.

      Goldsmith wanted to change para 254 from this:

      Periodic efforts by the Agency to elicit reaffirmation of Administration policy and DoJ legal backing for the Agency’s use of EITs—as they have actually been employed—have been well advised and successful. However, in this process, Agency officials have neither sought nor been provided a written statement of policy or a formal signed update of the Do] legal opinion including such important determinations as the meaning and applicability of Article 16 of the Torture Convention. In July 2003, the DCI and the General Counsel briefed senior Administration officials on the Agency’s expanded use of EITs. At that time, the Attorney General affirmed that the Agency’s conduct remained well within the scope of the 1 August 2002 DoJ legal opinion.

      to this:

      Periodic efforts by the Agency to elicit reaffirmation of Administration policy and DoJ legal backing for the Agency’s use of EITs—as they have actually been employed—have been well advised and successful. However, in this process, Agency officials have neither sought nor been provided a written statement of policy or a formal signed update of the Do] legal opinion including such important determinations as the meaning and applicability of Article 16 of the Torture Convention. In July 2003, the DCI and the General Counsel briefed senior Administration officials on the Agency’s expanded use of EITs. Specifically, the officials were briefed concerning the number of times the waterboard had been administered to certain detainees and concerning the fact that the program had been expanded to detainees other than the individual (Abu Zubaydah) who had been the subject of specific DOJ advice in August 2002. At that time, the Attorney General expressed the view that the legal principles reflected in DOJ’s specific original advice could appropriately be extended to allow use of the same approved techniques (under the same conditions and subject to the same safeguards) to other individuals besides the subject of DOJ’s specific original advice. The Attorney General also expressed the view that, while appropriate caution should be exercised in the number of times the waterboard was administered, the repetitions described did not contravene the principles underlying DOJ’s August 2002 opinion.

      [changes highlighted]

      That seems like a pretty serious distortion of reality to me. We don’t know what was said at the meeting, but we know that the DOJ knew about all of that stuff (except perhaps the number of repetitions) before that meeting. Do you think it is credible that Ashcroft actually said anything about ‘under the same conditions and subject to the same safeguards’? I don’t. These changes are clearly Goldsmith playing CYA. I don’t hold it against him that he’s trying to protect his boss, but for you to claim that those changes make the report more accurate strains credulity.

      • emptywheel says:

        WO

        As a baseline matter, I don’t know where this turned into a post about Helgerson. I name him ONCE in the post. ONCE. But somehow I’ve slandered him and underestimated the work he did to bring torture in line. (And somehow it’s okay to talk about individuals at CIA but not at DOJ, bc I would say there are people at DOJ who did just as much as Helgerson in bringing torture to some limit, but no, it’s a measure about Helgerson v. DOJ). And somehow the good things Helgerson did with his review make it inappropriate to point out things NOT in his report about how OTHERS at CIA gamed a particular document to pretend they had legal approval to torture.

        This is not a post about the IG Report or Helgerson or Ashcroft, its a post about the legal principles documents, which the paper record shows were not accurately described in the IG report (and we don’t know why but it almost certainly has everything to do with Muller and little to do with Helgerson).

        Next, I make one assertion–that the CIA released a report they knew to be inaccurate.

        Now frankly, YOU’VE been making that same argument when pointing to the ambiguities Helgerson (presumably) left in there. So I won’t waste too much time making the same argument. But at a baseline level, are you really suggesting that Muller and others at CIA didn’t know that Congress (Harman definitely and Jello Jay probably) objected? Are you really suggesting that Muller didn’t know that OLC twice told him the Legal Principles document was not an OLC document yet the IG REport doesn’t reflect that? You make grand assertions about things we KNOW DOJ (not distinguishing between who at DOJ knew) knew, but we’ve got paper evidence that Muller was twice told the Legal Principles document was not an OLC opinion and paper evidence that Harman objected to Muller.

        As to your assertions about Ashcroft, I agree with some, disagree with others, think you dismiss concerns about details (for example, it is not true that the number of waterboards was the only thing Ashcroft’s okay was suggestd to affirm in this document, and since we’re talking about murder, I think the distinction is pretty significant and relevant) but mostly am thoroughly uninterested in engaging on points that aren’t what this post is about. It’s JUST NOT WHAT THIS POST IS ABOUT.

        I don’t understand this frankly, but I feel like you’ve got a whole lot invested in Helgerson’s authorship of a DOCUMENT–which is utterly distinct from his management of an investigation (which I agree he did an important service on). We KNOW Muller and probably Rizzo and probably Tenet and definitely Cheney influenced what the document said in the end. We KNOW he didn’t have full control over the end content of the document so it is not an insult to Helgerson to say that it is inaccurate at points. So why does one reference to the IG report here turn into a post about Ashcroft?

        • WilliamOckham says:

          Let me try to answer your question.

          So why does one reference to the IG report here turn into a post about Ashcroft?

          The connection is this. You can’t understand Goldsmith’s objections to the IG Report (which in my reading of your post are pretty central to your claims about the ‘legal principles’ document) without understanding what he actually wanted to change. I think you confused Goldsmith’s assertions about Ashcroft with mine. The only assertion that I’m making about Ashcroft is that what Muller claims Ashcroft agreed to is a lot more than what Ashcroft (through Goldsmith) understood. The only written record of the meeting was produced by Muller and naturally supports his view. I’d love to see the PowerPoint, but it wouldn’t be dispositive.

          I thought your assertion that the CIA issued a report that they knew to be inaccurate was at least, in part, what this post was about. It’s pretty central to understanding the role of the ‘legal principles’ document. That’s what I’m trying to discuss here. I have not ever argued that the Report was knowingly inaccurate. I just haven’t. I think it is unfair for you to make that claim. I’ve argued that there are ambiguities and indirection, but if you think that’s an argument that it is knowingly inaccurate, then the phrase is meaningless. Practically every government document ever published is inaccurate according that standard.

          Everything I’ve posted on this thread has been to disagree with the idea that Goldsmith’s claims give us a reason to assume that there was a deliberate attempt by Helgerson to shade the report to make the DoJ look bad, which what I think you are saying when you claim that the report misrepresented the status of the document.

          First of all, you said this in the post:

          June 18, 2004: Goldsmith writes Tenet telling him the IG Report mis-represents Ashcroft’s statements and falsely presents the “Legal Guidelines” document as official OLC opinion.

          But the actual letter doesn’t say anything at all about falsely presenting that document. The operative paragraph says:

          The Department of Justice believes that the report contains some ambiguous statements concerning the Attorney General’s remarks at a 29 July 2003 meeting of selected NSC principals that should be clarified and that it contains some statements that mistakenly characterize the extent of advice provided by the Department.

          [my emphasis]

          The letter then refers to suggested changes. I brought up the actual changes that Goldsmith proposed to show that the “statements that mistakenly characterize” are
          a.) attributed to someone or some document rather than conclusions of the Report
          and
          b.) about events that Goldsmith had no personal knowledge and no documentary evidence to support his position
          and
          c.) motivated, at least in part, by Goldsmith’s attempt to cover for the fact that he was responsible for allowing the CIA to assume that the ‘legal principles’ document was valid.

          I wanted to bring up the actual changes that Goldsmith wanted to show that they don’t support your statement that the IG report:

          cited the “Legal Principles” document as a central authorization for torture and claimed (in spite of the Philbin meeting and an earlier Goldsmith message) that the document was an official OLC opinion.

          If the IG report really said that, wouldn’t you expect Goldsmith to want to change it. The report doesn’t say that. In fact, it specifically mentions in para 254 the CIA hasn’t gotten an official opinion since the 1 August 2002 opinion. That is exactly the opposite of what you claim the report says (that the legal principles document is an official opinion). You claim the report says one thing when in fact it says just the opposite. Goldsmith suggested changes to para 254 with respect to what Ashcroft approved, but he was happy with that part of about the legal opinion.

          The reason I’m frustrated is that I think this is a pretty simple point. You are mis-reading the report. It doesn’t say what you think it says.

          • emptywheel says:

            I thought your assertion that the CIA issued a report that they knew to be inaccurate was at least, in part, what this post was about.

            No, it’s not in the least. This post is abotu how CIA used a document to give themselves legal cover for things they had not legal cover for.

            It’s pretty central to understanding the role of the ‘legal principles’ document.

            I don’t see why that’s the case. What the IG Report gives us is a reflection of how important Muller thought the document to be–but we have that anyway with his repeated attempts to get OLC to stand by it when it was not an OLC document.

            Everything I’ve posted on this thread has been to disagree with the idea that Goldsmith’s claims give us a reason to assume that there was a deliberate attempt by Helgerson to shade the report to make the DoJ look bad, which what I think you are saying when you claim that the report misrepresented the status of the document.

            Then you totally misunderstood what I was saying.

            First, as I pointed out, if I say the IG Report is inaccurate, it doesn’t mean that “Helgerson deliberately shaded the report.” I have said over and over and over that this document doesn’t necessarily say ANYTHING about what Helgerson did, because Cheney and Muller are silent authors of this final report. Furthermore, even assuming that Helgerson was not pressured (as we know he was) by at least Cheney, to suggest that the only way for the document to be inaccurate is for Helgerson to have deliberately shaded it is to assume that he had complete information. He clearly did not. Do we even know whether he knew that Philbin (in what is a thus-far unrebutted claim by OLC) objected to the document on June 17, the day after he received it? No, there’s no reason in the least to believe that Helgerson saw that, given that he attributes this to Muller. [note, I see how the part you’ve quoted might be read as me saying he did know the Philbin objection existed. He did not. Muller did.]

            So, like I said, Helgerson is utterly moot to this post.

            And as to whether the IG Report implies that the document counted as official DOJ approval, I think this passage implies it does, particularly presented in the DOJ Legal Analysis section which only otherwise mentions the 3 August 1 memos (and not the July 13 one, which may be alluded to elsewhere, but which is also a document from OLC if not official).

            OGC continued to consult with DoJ as the
            CTC Interrogation Program and the use of EITs expanded beyond the
            interrogation of Abu Zubaydah. This resulted in the production of
            an undated and unsigned document entitled, “Legal Principles
            Applicable to CIA Detention and Interrogation of Captured
            Al-Qa’ida Personnel.v? According to OGC, this analysis was fully
            coordinated with and drafted in substantial part by OLC.
            [snip]
            According to OGC, this analysis embodies Do] agreement that the
            reasoning of the classified 1 August 2002 OLe opinion extends
            beyond the interrogation of Abu Zubaydah and the conditions that
            were specified in that opinion.

            This is Helgerson repeating the representation to him of how Muller explained the expansion of torture from Abu Zubaydah to others (possibly including non-HVDs). I suspect Helgerson accurately represented what Muller told him (which is what he replied to Goldsmith). But I think it inaccurately represents the extent of DOJ approval–and Muller, but not Helgerson–knew it did.

            Now, I frankly don’t think this post relies on this at all, aside ƒrom the one mention I made. Where I think the IG Report is important is NOT what Helgerson believes or not, but how Muller was presenting this document, even though he knows–though Helgerson may not–that OLC was not considering this official OLC stance.

            I understand you are reading this as a post about the IG Report. And in doing so you are both conflating MY argument with the IG Reports (and what we can learn from the emphasis placed on this document in the IG Report, which is really about what Muller was spinning) with what Helgerson was doing.

            In the end, the report was influenced by Cheney, probably Muller and Rizzo and Tenet, and by Helgerson’s imperfect information. What we get in the end is a picture that clearly claims Congressional approval where it didn’t exist, seems to claim DOJ approval where that came out of the same secretive backdoor process that resulted in approval for the warrantless wiretap program, and makes certain other claims about CIA intent that are almost certainly false. Do I think Helgerson is lying? No–though he may be struggling mightily to maintain the integrity of his document under a great deal of political pressure. Do I think Muller was lying? Absolutely.

            I’m sorry if I mis-stated you as saying the document is inaccurate. I take some of the things you’ve said in the past observing Helgerson’s exposure–in select, but not all cases–of Muller’s potential truth issues to mean that. If not, I’m sorry I misstated it. But you’re basically pointing to some fo teh same tensions in the document I am.

            • WilliamOckham says:

              In the post you said that “the IG Report … claimed (in spite of the Philbin meeting and an earlier Goldsmith message) that the document was an official OLC opinion.”

              This is false. I showed you it was false. You should correct it.

              • emptywheel says:

                No, you showed me that your personal interpretation of the passage I keep citing and you don’t address is different from mine.

                I’ve changed it to the exact quote from the document–which I maintain supports the interpretation I used before.

                • WilliamOckham says:

                  How the hell is it my personal interpretation to quote, verbatim, from the report:

                  Agency officials have neither sought nor been provided a written statement of policy or a formal signed update of the DoJ legal opinion

                  You tell me how that can be interpreted any other way than saying they don’t have a formal opinion.

                  • emptywheel says:

                    Okay, that is a fair point.

                    But then you’ve got the rest of the paragraph:

                    In July2003, the DCI and the General Counsel briefed senior Administration officials on the Agency’s expanded use of EITs. At that time, the Attorney General affirmed that the Agency’s conduct remained well within the scope of the 1 August 2002 DoJ legal opinion.

                    This is why (though it is irrelevant to this post) I think the AG dispute actually does matter. Goldsmith/Ashcroft say they were approving the 100s of waterboards specifically and the content of the Bybee Two. IG Report contains no such limit on Ashcroft’s approval. So the IG report suggests, in the context of the report as we get it (meaning the redactions may say something else), that Ashcroft approved precisely teh kind of things the Legal Principles purported to approve: like stomach slaps.

                    So I cede your point on “formal signed update” (note, not “formal opinion”). I don’t agree it’s as clearcut as you make it out to be. But fine, you’ve changed a line in my post that is totally irrelevant to the larger point.

                    Furthermore, if anything it reinforces the entire point of my post. This document was playing a role that CIA was well aware was dicey. OLC agreement without seeking OLC agreement, and whatnot.

                    • LabDancer says:

                      Whew! At least I hope Whew! because it’s taken the better part of an hour for my Little Brain to catch up, go back, figure out the guts of the dispute, during which I could have been Drinking Liberally [”…coming; just figuring out this thing on the Internet…”]. And I think maybe I’ve got it:

                      Helgerson may not be quite as good, or bad, as some may think; it’s hard to say, especially since Muller was looming over his shoulder.

                      Goldsmith, on the other hand, DEFINITELY may not be as good, or bad, as some may think; it’s VERY hard to say — especially since Rizzo, & by the time Goldsmith came on board, Muller, were far more conversant with the stuff being fenced over [to say the least], and in some respects the last two were personally involved [even if left unsaid, but if said, to point of risking the “Tilt” light going off].

                      Muller, on the other hand [that shouldn’t even be there] is every bit as bad as some say & worse than others — a lot [Quite the resume at his new, old, semi-permanent, forever diggs at Davis Polk:

                      http://www.sourcewatch.org/ind….._W._Muller

                    • emptywheel says:

                      I have zero reason to doubt the instincts of Helgerson.

                      But that doesn’t ensure he’d be successful in 1) ignoring the VP or 2) blowing off the top management of the CIA as an IG designed to have limited autonomy.

                    • LabDancer says:

                      FWIW neither do I; and for me at least, the main benefit of WO’s challenges is in showing why [no offence intended to WO].

                      I can see how Goldsmith’s having the seat he had, dealing with Addington coming at him like Butkus, seeing Gonzales in action, fighting off a constant stream of shit from Rizzo’s rathole, Muller playing whack-a-mole with his efforts to get a foothold in this for the OLC, and meanwhile Helgerson’s work is getting repeated violated, all of that playing out so recently after the hospital incident & all it entailed, with its messy, dangling resolution, served so effectively to chase him into quitting so early.

                      Plus it probably didn’t serve to firm up any patriotic fervor about staying to see so close what it was doing to classic tough guy Comey, or arriving at a fairly obvious conclusion as to why Yoo wasn’t around any more; and who knows: perhaps envisioning what all of it meant to a lot of people being dismantled in dungeons.

                    • WilliamOckham says:

                      Here’s our fundamental disagreement. You say that the question of whether or not the IG report says that the ‘legal principles’ document is valid (or formal or operative or whatever) is irrelevant to the point of your post, i.e. “to better understand why the document was developed and what more we might learn from it.”

                      I’m making an opposing claim. I think really understanding why the document was developed requires understanding that the two are very tightly connected. It’s impossible for me to make my argument if you buy the story that the IG report accepted that document as legitimate.

                      Here’s what I think happened, in a nutshell. The IG investigation started in January 2003. Muller quickly realized that the 1 August 2002 memo didn’t cover everything they were doing. He worked with Yoo to develop this ‘legal principles’ document to provide yet another retroactive ‘golden shield’. This time is was aimed directly at the stuff that Helgerson’s team was uncovering. You can draw a pretty straight line between stuff in the IG’s report and the stuff that the ‘legal principles’ document purports to endorse. At the same time, there’s a lot of stuff in the IG report that’s aimed directly at refuting the arguments in that document.

                      Where you see the IG report blithely spewing the CIA company line, I see it very carefully and subtly undermining it. I’m willing to concede that my interpretation may be wrong, but I’m not willing to concede the facts.

                    • emptywheel says:

                      We’re not that far off. I believe the document was developed in response to clear violations of the law in late 2002.

                      That said, I don’t see the difference. The IG Report still allows Muller’s claims relatively (and in teh Summary especially) unchallenged. It still follows a narrative that in places serves CIA/Cheney purpose. It still gives CIA far more legal leeway than the record we know deserves. (Those are the facts that you seem unwilling to treat.) It still appears to be ignorant of key facts.

                      There are a number of explanations for that. You can disagree–as I think you might (though I still think we’d have to go paragraph by paragraph to look at the times when the rhetoric clearly helps the CIA). You can attribute it to Cheney/Muller/Rizzo/Tenet. You can say that Helgerson was very rigorous, but still ultimately a CIA employee. You can say he had imperfect information. I don’t know the answer to that, though I expect it’s a combination of all of them.

                      But my focus here was on the Legal Principles, NOT the IG Report. And whether it was a response to the IG Report or the clear criminal violations in 2002, the Legal Principles was an attempt to cover up CIA’s crimes. Which is why the IG report is irrelevant (except for the one line that you and I continue to disagree on which is still ultimately about Muller’s actions which are evident in the documents I’ve actually focused on).

                      And, once again, I’m not saying “IG report blithely spewed the CIA company line” (you continue to caricature what I’m saying, maybe bc then you don’t have to deal with the real subtleties of the document). At times it subtly undermines, at times it makes choices and representations that clearly help the Company. It claims some things in the summary, for example, it’s careful not to claim in the text. I think my biggest disagreement with you is that you see it as a single, intentional author, when such thing NEVER exists, and certainly doesn’t exist with Muller feeding you shit on the front end and Cheney feeding it to you on the back end. We KNOW it’s not a single intentional author, but you’ve built a hero out of the author of this document that doesn’t exist because it’s not one ego making this document (and wouldn’t be a coherent author even if it was). And if Helgerson was such a hero, why not just call out Muller?

                      John Helgerson might be a hero for his investigation. But that’s different than being a hero of the document. And there’s little evidence of complete coherence in this document, much less one heroic author.

                    • WilliamOckham says:

                      I have two brief responses. First, I withdraw the comment about ‘blithely spewed the company line’. Reading back over the post and your comments, I see that I misunderstood a couple of your points.

                      Second, I never intended to make this about Helgerson and the authorship of the report. Those issues are not relevant to the discussion I’d like to have. This exchange probably would have gone better if I’d phrased the last paragraph of my first comment like this:

                      I believe that it is significant that the contradictory evidence is presented immediately after the report of the briefing. You have to read between the lines a little, but the evidence shows that the DCI and GC gave an inaccurate briefing. We should ask ourselves the question, if they got that detail wrong, how much did they really tell Ashcroft and how much is his oral concurrence worth if it is based on misinformation.

  10. maryo2 says:

    To fill in a picture of what was happening in the news around June 16, 2004: the NYT first reported on ghost detainees in Iraq.

    http://www.nytimes.com/2004/06…..abuse.html

    WASHINGTON, June 16 – Defense Secretary Donald H. Rumsfeld, acting at the request of George J. Tenet, the director of central intelligence, ordered military officials in Iraq last November [2003] to hold a man suspected of being a senior Iraqi terrorist at a high-level detention center there but not list him on the prison’s rolls, senior Pentagon and intelligence officials said Wednesday [June 15, 2004].

    Today’s timeline says in June 2003 the CIA (Tenent) was told the Legal Principles is not a legal OLC memo. So in November 2003, he asks the military to disappear a person in Iraq.

  11. MadDog says:

    Tangentially OT – As I mentioned last night, Repugs like Senator Kit Bond and former DOJ harpy Victoria Toensing are returning from their summer vacations with a gameplan to “Plame” the Democrats for doing in the CIA.

    Michael Goldfarb over at The Weekly Standard has gotten the memo too:

    CIA Tests DoJ Priorities

    Eli Lake and Sarah Carter have a big scoop this morning on news that the CIA “has asked the Justice Department to examine what it regards as the criminal disclosure of a secret program to kill foreign terrorist leaders abroad.” As a result of those leaks, the head of the firm formerly known as Blackwater, Erik Prince, has ended up on an al Qaeda hit list. Given that there is just as much disdain for Prince among left-wing Democrats as there is in the al Qaeda organization, one shouldn’t expect too much concern about this development from those who screamed loudest about the disclosure of Valerie Plame’s identity. But the facts of the crime are eerily similar — with one key difference: this time it looks like the leak came from Congress and not the administration…

    …Assuming that Holder does make the right decision, I’m not above speculating on just who leaked the information in question. The source is almost certainly a Democratic member of the House Permanent Select Committee on Intelligence, given the fact that no one knew of this program’s existence until Leon Panetta appeared before that committee and revealed details of the program in June. The top candidate there would have to be Jan Schakowsky, the Illinois Democrat whose made the persecution of Blackwater into her own pet cause…

    …Also in the running is Rush Holt…

    Yes, Up is Down, In is Out, and Wrong is Right!

  12. Gitcheegumee says:

    Copper Green
    From Wikipedia, the free encyclopedia

    Copper Green is reported by American investigative journalist Seymour Hersh to be one of several code names for a U.S. black ops program, according to an article in the May 24, 2004 issue of The New Yorker.

    According to Hersh, the task force was formed with the direct approval of Secretary of Defense Donald Rumsfeld during the U.S. invasion of Afghanistan (October,2001), and run by Deputy Undersecretary Stephen Cambone. Hersh claims the special access program members were told “Grab whom you must. Do what you want”.

    Hersh claims to have spoken to a senior CIA official who said the program was designed by Rumsfeld to wrest control of information from the CIA, and place it in the hands of the Pentagon. According to Hersh’s sources, the program was so successful in Afghanistan, that Cambone decided to introduce the SAP program to operations during 2003 invasion of Iraq, eventually leading to the use of common soldiers instead of using special ops forces exclusively._____________________________________________Wikipedia

    EW,do you have timelines for 2001 activity ?

  13. Gitcheegumee says:

    Copper Green – Wikipedia, the free encyclopediaNov 23, 2008 … Copper Green is reported by American investigative journalist Seymour Hersh to be one of several code names for a U.S. black ops program, …
    en.wikipedia.org/wiki/Copper_Green – Cached – Similar

    • Mary says:

      Apparently OLC is big on Insult SLAPPs.

      Seriously, I know so little about RICO and SLAPP suits or crim stuff in general that I’m no great source. All I can say is you can not look at everything out there (and all the IG reports and OPR reports etc. are very calculated to NOT look at all that stuff out there) in the context of the duties of at least the lawyers involved to the courts and to Congress, and of most of the other Exec employees to Congress (and, for that matter, of the lawyers in Congress who were briefed on torture to the Courts as DOJ was openly and obviously fibbing to the courts on torture and as Abu Ghraib soldiers were being tried and convicted with openly aired lies) – in any event, you can’t look at the overall picture of the duties to disclose and the circumvention of those duties and not be a) appalled and b) convinced someone(s) with JDs should be losing their rights to practice.

      I’m not even talking about how bad the opinions are – but when you take a bad opinion and then DELIBERATELY insulate it and its consequences from court and Congressional review and go so far as to solicit or fail to correct false statements to courts and Congress, it’s getting into Tenet-territory of slam-dunks on what should happen. But so far, no one is even really structuring an investigation along those lines or with that kind of mandate.

      Also, keep in mind for all the IGs, their main mandate is $$ related (fraud and abuses re: spending) and some whistleblower protections. Ferreting out criminal activiities isn’t an IG function (that’s why there main duty is to refer on to DOJ and notify Congress) and it sure isn’t OPR terrority either.

      Who at ED VA got the criminal referral and how bad do things have to be that OPR pipes up that it needs to be reopened. This is an OPR that didn’t squeak during the Nifong Padilla press conf and didn’t squeak about the Clement reps to the Sup Ct. Two things that just cry out for a response. So wth was involved with the crimnal referral to where OPR ranks it as so much worse than fibs to the Sup Ct and “make Nifong look good” pressers as to actually pipe up?

  14. emptywheel says:

    I think he was pretty closely circumscribed to making a referrals to the AG re: criminal actions, which he did. I don’t think he was statutorily allowed to negotiate back and forth with DOJ on the content of his report. More interesting to me than his NOT including DOJ in the report issuance process (although directly including DOJ in report follow up by means of making criminal referrals) is the fact that he DID include OVP.

    Yeah, admittedly I don’t know if CIA works like DOJ would, so maybe Goldsmith was just saying they should have gotten review bc he knew how DOD and DOJ worked. But when you add in the Cheney review, then it becomes disturbing.

    And I didn’t know about the Congressional requirement. That is rather interesting.

  15. Mary says:

    BTW – TPM has reported that former Ashcroft COS, David Ayers, is reportedly going to be taking the 5th in the Kevin Ring case where Ayers has supposedly been called to testify. I got tuckered out on Ayers AND ASHCROFT (remember Abramoff emailing his clients that Ring was going to shoot hoops with Ashcroft and get their little problems worked out then, in addition to Ayers coughing up info on a classified report to Abramoff as also detailed in the emails, etc.)

    Unless there are some sealed indictments out there involving Ashcroft and Ayers, it looks like DOJ deliberately sat out/is sitting out Statute of Limitations for their actions despite those being clearly spelled out in emails that were publically released years ago – I guess you can’t judge a book by its cover, but when the cover is something like this it can help you decide on where to place your chips.

    I think the old saying is something like, the race is not always to the swift, nor the battle to the strong, but that’s the way to bet.

    • emptywheel says:

      Well, not to mention that they’re just going after the sports tickets and not the wholesale sale of our DOI policy to these creeps.

      But who cares about a little oil and gas, huh?

      • Mary says:

        Or some sex slavery in the Mariannas and a wide open back door for terrorists.

        @42 I know, bmaz. You haven’t been alone brother. Apparently the reason the Eagle is so busy soaring is because there are a bunch of cracked eggs back in her nest.

  16. Mary says:

    @6 – it has to be disconcerting to have a juvenile citizen taken in as a human experimentation torture detainee, only to then have the statements from that citizen used by the country holding him to go around and disappeare still more citizens, sending them into torture detentions as well. Wheel within a wheel.

    @45 – That’s kind of what I was thinking, that the 2004 IG report ws provided to the Chair and Vice Chair (no specific dates in what you quoted, but I was thinking still in 2004, but that may be wrong) and the full committees didn’t get access until 2006 – so the Sept 2006. That’s a helluva lot longer than 14 days. And its really infuriating that, with the IG report in hand the members of the Senate and House Intel committees did basically nada to derail the MCA that came up for vote at the end of Sept. With in hand reports of torture kilings of even non-al Qaeda detainees – nada.

    I still go back, over and over, to the August 2002 CIA memo and what happened with it. Did the CIA IG find out about it, did the CIA IG take action on it, was the original memo or any CIA IG action presented to the Intel committees, ever, and if so when, etc. I think it’s a big cog that needs to start turning – the fact that there was a memo in Bush’s hands about innocence of detainees at GITMO as early as August 2002 and yet to date, still no one ever mentions that innocence and Congress has acted hand in glove to take away habeas while some on the Intel Committee at a minimum should have been briefed on that innocence. If they weren’t briefed, why not and who is pursuing that (DiFi doesn’t inspire me and I’ve never heard her mention this, despite how long Mayer’s book has been out and despite the publication of the Harper’s 6 Questions article that has a lot more age on it)

    It’s a big framing issue and it’s been buried.

    @46 Made in America.

    BTW – you may find this interesting, but I’m not sure I can get the link to work and I can’t get the highlighting from my google search terms to go away:

    https://www.cia.gov/library/center-for-the-study-of-intelligence/kent-csi/docs/v44i5a02p.htm

    It’s some background to the current CIA IG (at one point, Glen was going to make the IG report to a non-Intel committee) and the background is provided in this older piece by none other than L. Britt Snider, Clinton’s CIA IG who was heading up the House/Senate 9/11 review at one point, but after apparently getting crossways with both Porter Goss and Bob Graham he resigned out of the blue, not much in the way of reasons given.

    http://www.sptimes.com/2002/05…..esig.shtml

    Anyway, the background is interesting. And you can see how any IGs office starts biting the dust when the misconduct is originating from the head of his dept’s office, and/or includes the AG of the US, and/or includes the President, and/or includes heads of the Congressional committees to whom the oversight report would be addressed, etc.

    It’s not a great system for dealing with non-financial crimes in general and is especially not great when those possible non-financial crimes involve such high level actors.

  17. klynn says:

    That is, this document claims to reflect OLC authorization for the confinement techniques CIA was already using and for the new coercive techniques that had already been put into place.

    It’s almost like backdating…crazy.

  18. emptywheel says:

    Well, they were doing that consistently. We KNOW the May 10 Combination memo was written to authorize the treatment of someone–though we don’t know who. And the August 1, 2002 memo was probably retroactive too. So at least they were consistent.

  19. LabDancer says:

    Would it be worthwhile to take a closer look at what’s publicly available on the ORIGINS of the CIA OIG report?

    There’s always an certain level of noise in what follows after an agency IG makes known that office is going to proceed with an inspection; such would seem especially relevant given the agency in question & what with Cheney’s thuggees lurking & related apprehensions over things they might & did proceed to do. With all that chaos, both inherent & imposed, maybe the headwaters offer the most reliable read on the IG’s motives.

  20. maryo2 says:

    Muller seems like a OVP mole in the AG’s office. He seems to never have Ashcroft’s back and ready to lie at any turn.

    • emptywheel says:

      I don’t think he was–I think he was just CIA’s guy, and that’s to be expected. Rizzo has–and had, by then–much more demonstrable ties to Cheney (and even more so, to Addington).

  21. emptywheel says:

    One more point about intent.

    You objected to my claim that this document was rushed out (even while pointing to Goldsmith documents from a month earlier trying to get an opportunity to respond to the document–that month is 2 months shorter than CIA has had to review the OPR report, which I think a fair comparison).

    My point being that CIA (not Helgerson) seems to have done certain things to make it impossible for Helgerson to integrate DOJ’s objections into the document itself. That’s everyday bureaucratic manipulation. Big whoop. But it had the effect of ensuring that the document went to Congress and others saying things that DOJ disagreed with, and at least as to the OLC involvement in the Legal principles document, probably disagreed with fairly, given the number of times they had said no to that document.

    Just as an example of why this is important, consider this. The entire report says authority for the program goes back to the National Security Act, and therefore the presidential finding. That means the DOJ review was probably moot–the report itself said the important thing was the President. If so, then why not tell teh July 29 story as “Cheney and Gonzales approved”?

    It was a specific choice to focus on Ashcroft instead of the WH. That may have been Helgerson’s choice, it may have been Cheney’s, it may have been Muller or Rizzo’s, and it is to some extent a fair choice. But it was a choice. Particularly given what we know about the document (that Cheney got a review, but DOJ did not, that in mid-June the report was rushed out as soon as Goldsmith submitted objections), I find that notable.

    • emptywheel says:

      And one more point on this–remember that when Harman objected and said, “Has Bush approved,” Muller basically said it was none of her business. The narrative there and here is the same: legal authority for torture, without it tying back to the WH.

    • WilliamOckham says:

      I think you’re making a lot of mistakes here. In this comment, I’ll reply to the most egregious one. I can’t believe you want to push the ‘there’s a Presidential finding, so DOJ review is moot’ line. That’s complete hogwash. Presidential findings don’t change the law (despite what Yoo, Addington, and Nixon believed). The OLC is still responsible for determining what is legal, because that authority was delegated to them.

      A covert operation requires a Presidential Finding. It also is supposed to be legal. That should be entirely uncontroversial

      • emptywheel says:

        First, I appreciate you telling me about my “mistakes,” but in fact the OLC is NOT “responsible for determining what is legal.” The Courts are (and in fact the Courts ruled against OLC on precisely these issues).

        Second, even assuming OLC rulings give executive branch actions sanction of legality assuming real process has been followed, when this document was released the Bybee One–basically asserting that the President’s authority ruled here–was still in place.

        Third, while I agree Findings are supposed to be legal, that says NOTHING about what Bush maintained–and this document appears to reflect. At this point, the entire legal structure of torture was still based on the President’s will dictating what was legal. And there is nothing that says Presidential Findings are legal if OLC has approved.

        Finally, you are again conflating what you and I agree to be true, and what those who provided Helgerson information for this document believed. If the document said, “Bush said so,” and relied on a memo which said “Bush said so,” which it did, then you’re still in the place where Cheney and Gonzales approval should be more important than Ashcroft approval.

        • WilliamOckham says:

          Really, we have to go there? Ok, fine. The OLC renders legal opinions that are binding on the executive branch:

          By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality.

          • emptywheel says:

            Right. And the binding opinion until mid-June 2004–and more importantly, the binding opinion when this document was written and when that meeting was held in July 2003–said the following:

            In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, we will not read a criminal statute as infringing on the President’s ultimate authority in these areas.

            [snip]

            In order to respect the President’s inherent constitutional authority to manage a military campaign against al Qaeda and its allies, Section 2340A must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority.

            So irrespective of what role you think Findings have, even assuming OLC rules all, in this case, even OLC said the most important thing is presidential approval.

            According to Yoo, it didn’t matter what DOJ had to say. There was no interpretation they coudl make of torture that could find it to be illegal so long as Bush had approved.

            • Hmmm says:

              Not to butt in, but this sentence strikes me as interesting when contrasted with AGAG’s above (per ProfessorFoland).

              In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, we will not read a criminal statute as infringing on the President’s ultimate authority in these areas.

              vs.

              GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force. I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you’re possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we’re not talking about a war declaration. This is an authorization only to use military force.

              Now, I probably have the dates and actions and actors unreasonably confused here — wouldn’t be the first time — but there is at least an appearance that the left hand was heavily relying on a basis (this was war) that the right hand was heavily denying (AUMF actions are different from war). Playing both sides of the issue, or undermining (perhaps unintentionally) each other’s arguments? Or were some actions being justified as Presidential inherent war powers, whereas other actions were being justified as AUMF powers?

    • bobschacht says:

      It was a specific choice to focus on Ashcroft instead of the WH. That may have been Helgerson’s choice, it may have been Cheney’s, it may have been Muller or Rizzo’s, and it is to some extent a fair choice. But it was a choice. Particularly given what we know about the document (that Cheney got a review, but DOJ did not, that in mid-June the report was rushed out as soon as Goldsmith submitted objections), I find that notable.

      I’ve read through all the comments (with some amazement) but want to come back to this. If Helgerson’s report was cleared through, and modified by, those mentioned up to and including Cheney, is there any way to tell in what order the draft was reviewed by whom, and who got the final review? Would the routing slips show this?

      Finally, although I occasionally detect hints of exasperation in the “voices” of EW and WO, I appreciate that you have both attempted to keep the argument focussed on the evidence, rather than allowing your debate to degenerate into name calling. It has been a hard argument for me to follow, but I appreciate your efforts to parse out the details.

      Bob (now in AZ)

      • tryggth says:

        Finally, although I occasionally detect hints of exasperation in the “voices” of EW and WO, I appreciate that you have both attempted to keep the argument focussed on the evidence, rather than allowing your debate to degenerate into name calling. It has been a hard argument for me to follow, but I appreciate your efforts to parse out the details.

        I second that. Its actually been a fun read. In between responses I have been reading:

        http://www.law.harvard.edu/stu…../riggs.pdf

        Regardless of the merits of the argument, the enshrinement of “prolonged mental harm” seems to be a problem. Torture does not require such a determinative criteria.

  22. WilliamOckham says:

    Now, let’s turn to the ‘legal principles’ document. There’s no dispute that it was drafted by OGC and OLC attorneys working together. Muller claims (in the March 2, 2004 letter) that the OLC ‘concurred’ with the document in June 2003. Goldsmith claims that the status of the document was made clear at a meeting on June 17, 2003.

    My question is this: Why should we believe Goldsmith? He wasn’t there in June 2003. He doesn’t produce any documentation (where are the minutes to the meeting?)

    I’m not saying we should believe Muller. I don’t trust either one. Let’s suppose that the status of the document was made clear on June 17, 2003. Did Ashcroft implicitly endorse it 12 days later? I don’t find Goldsmith’s posturing after the IG report to be all that convincing. Ultimately, the IG report went to Congress with the salient fact about this document right out in the open. It was not a signed opinion by the DOJ.

    I meant what I said when I wrote that this post is excellent work. And I also think it can be improved by taking a little more skeptical view of Jack Goldsmith.

    • emptywheel says:

      Start with the fact that these documents are CIA releases–not DOJ. If they had something that made CIA look better in light of that DOJ claim, don’t you think they’d release it? (And we do presume they’re withholding two version of tihs document which likely shed some light on what they really are.)

      There’s the fact that Pat Philbin–the guy who brought a bunch of problematic opinions to Goldsmith in the first place–received it and is later credited with taking multiple stands against torture.

      There’s the July 13, 2002 document faxed from Rizzo to Philbin on 6/22/04. Why would the then DAG advisor need to ask CIA for that document? Why would he be getting it right in the middle of this debate? That suggests another Yoo freelance.

      Then there’s the fact that SSCI doesn’t mention this document in its narrative–again, having worked with CIA and DOJ to put together a narrative. Why not? It suggests that, with all the parties in the room in 2008 (significantly, with Rizzo as acting GC), the SSCI found it not worth mentioning in its discussion of OLC approvals. If Article 16 was so important to SSCI–as it appears to have been–then why not mention this document if it is legitimate at all?

      I guess there are two questions: Is there abundant evidence Yoo was freelancing, like he had with the wiretapping, at least per Bybee?

      And if so, what do we believe Philbin would have done in 2003 and Goldsmith in 2004 given the other evidence of them trying to clean up after Yoo while still giving CIA as much room as they could?

  23. Rayne says:

    IANAL as most regulars here know, but one thing really bugs me about (Other-25) and (Other-23) — the claim of attorney-client privilege.

    How can a U.S. agency claim a firewall from the public using attorney-client privilege?

    I understand executive privilege, which protects the executive office’s ability to deliberate freely without pressure — but this isn’t an executive claim.

    I could also understand if a CIA employee asked for legal guidance from a personal attorney and the employee invoked the privilege.

    But not in the case of communications intra-agency; that’s simply the conduct of business on behalf of the U.S.

    And the privilege belongs to the client, as I understand it, not the attorney. If this is the CIA’s attorney, who is the actual client?

    Hope a lawyer or two here can help me out with this.

  24. Hmmm says:

    OT: This Large Orange description of Scientology’s sick and twisted farm club out in Riverside somehow put me very much in mind of the torturers vis a vis their specific abuse techniques:

    Recently, the St. Petersburg Times issued a special report focusing on four ex-Scientologists who spent time at Gold Base. Their stories reveal an atmosphere of fear and abuse, much of it perpetrated by Scientology’s current “ecclesiastical leader” or “Chairman of the Board,” David Miscavige. Mr. Miscavige is accused of physical and mental abuse of his subordinants, including punching, slapping, slamming people against walls, and sentencing them to deprivation and imprisonment. This culture of abuse is perpetrated and mimicked down the chain of command.

    Long shot, but… don’t suppose any of the key torture theorists have any Scientology links?

  25. 1boringoldman says:

    I think there is another thing to add to this excellent timeline:

    March 20, 2003: The Invasion of Iraq

    Stating the obvious, while the Torture Program itself was directed at al Qaeda detainees, one goal seems to have been to get some detainee to confirm that al Qaeda was tied to Saddam Hussein. Surely the CIA knew that the WMD claim was beyond shaky and that they had only gotten one [ultimately retracted] confession of an al Qaeda/Iraq tie [al-Libi]. The CIA had to know how weak the Casus Belli really was.

    With the real possibility of the pre-Iraq-War intelligence being proved false after we invaded, they must’ve anticipated that their Torture Program was going to come out and look pretty vile – throwing them into full CIA CYA mode. They got Yoo to cover them with the “Legal Principles,” but then he left. They had stepped way over the line to give the Administration what it wanted. The fact that we actually invaded Iraq and were finding nothing must have driven the attempt to sneak Yoo’s “Legal Principles” by Philbin in June 2003, and the retroactive immunity campaign that followed.

    And while one can criticize aspects of the responses of Comey, Goldsmith, and Helgerson, all three were in impossible situations. Given the terrain they had to traverse, they were bastions of sanity in a sea of craziness.

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