Bybee: No Written Advice Provided to Any Agency Prior to August 1, 2002

 When Jay Bybee responded to written questions from Carl Levin about the torture authorizations in October 2008 (at a time when the Office of Professional Responsibility investigation was well-advanced, if not done), he made the following assertion.

While Judge Bybee said that he did not recall "any written advice provided to any governmental agency prior to August 1, 2002, on the meaning of the standards of conduct required for interrogation under the federal anti-torture statute or on specific interrogation methods," the August 1, 2002 memos were not the only occasion on which DOJ provided legal advice on the CIA’s interrogation program.

That’s interesting, because we know that on July 13, 2002, John Yoo wrote John Rizzo a letter in which he mapped out how to avoid prosecution for torture. He wrote:

This letter is in response to your inquiry at our meeting today [not attended by Bybee] about what is necessary to establish the crime of torture, as set forth in 18 USC 2340 et seq. The elements of the crime of torture are: (1) the torture occurred outside the United State; (2) the defendant acted under the color of law; (3) the victim was within the defendant’s custody or physical control; (4) the defendant specifically intended to cause severe mental or physical pain or suffering; and (5) the act inflicted severe mental or physical pain or suffering.

[snip]

Moreover, to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose, [sic] of causing prolonged mental harm in order for the use of any of the predicate acts to constitute torture. Specific intent can be negated by a showing of good faith.

Now, it’s possible that Bybee did not consider this "written advice," but it sure seems to address the topic at hand (and note, Bybee did not say "opinion," but only "written advice"). It’s possible he lied–though I would imagine his answers to Levin very closely matched the answers he gave to OPR to what would presumably be remarkably similar questions.

Just as likely, I think Bybee may not have known about this letter.  On June 22, 2004, the day OLC withdrew the Bybee One memo, John Rizzo faxed the letter (including the fax cover sheet Yoo originally used) back to Daniel Levin. That either suggests Rizzo was trying to remind Levin of the meeting on July 13, 2002 (which Levin had attended as FBI Chief of Staff). Or he was providing OLC, where Levin had moved, with a copy of a letter that was not otherwise in their files.

This earlier letter lays out the torturer’s strategy for establishing a  "good faith" immunity from torture. Is it possible Bybee didn’t know about it?

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.

62 replies
  1. BoxTurtle says:

    It’s likely Bybee didn’t know about it. The entire torture program was VERY compartmentalized, right hand not knowing what the left hand is doing.

    Boxturtle (On paper, at least)

    • emptywheel says:

      Yeah, but I guess my point about the OPR investigation is that, by October 2008 (he delayed several months in responding to Levin’s questions), he likely knew that this document existed, or had been asked pointed questions about it.

      • timbo says:

        The real question is or has John Yoo been asked pointed questions about it under oath yet. And if not, why not? Because what we have here is almost most assuredly a conspiracy to try to make something illegal seem legal. It’s classic obstruction to not get to the bottom of what occurred and who caused it to occur.

      • drational says:

        Might Bybee have answered similarly if Yoo was not acting in his DOJ capacity to provide the advice to Rizzo? You have speculated that Yoo was moonlighting as a rogue. What if he was moonlighting as a “War Council” attorney? Goldsmith found some of his torture work not to be “OLC work product” and maybe this letter is part of his outside contracting work? It would be a convenient way to insulate others in the Govmt from liability.

  2. scribe says:

    I am with the idea that Bybee “didn’t know about it at the time in 2002″. I also would be constrained to believe that, indeed, Bybee knew of the existence of Yoo’s July 2002 letter by the time he got around to answering Levin, but either (a) didn’t make the connection or (b) is playing some semantical games to put that letter outside the definition of “Written advice” (go find me a definition of that term – anywhere. It’s like defining “investment banking” – it includes or excludes whatever the person using the term wants.)

    The third alterative is (c) he lied. In that regard, he’s waiting on getting the Scholzmann treatment for himself, which the spineless hacks in DoJ will surely give him, too. After all, he’s a federal judge! And, if we give Schloz a pass for some really blatant lies, we have to give him one for his subtle lies!

    • LabDancer says:

      Only three alternatives?

      What happened to “accurate for the purposes of budgetary significance”, where anything number less than 50,000 is rounded out of existence?

      What happened to the “Hail Mary” option: Please, God: Could you just arrange for this to slide?

      What happened to the “My bad!”: Did I say “none”? Whoopsie! I meant some positive integer OTHER than one.]?

      And there must be more; maybe way more; maybe even more than here:

      http://www.youtube.com/results…..&aq=f

  3. BayStateLibrul says:

    What we really need is E-Memory or “lifeblogging” for the Bush Administration liars.

    Gordon Bell and Jim Gemmell from Microsoft, co-authors of “Total Recall: How the E-Memory Revolution Will Change Everything.” were featured by NPR’s Tom Ashbrook today. According to Tom, “Human memory is a famously tricky thing. We remember some things. We forget a lot more. And we shape and sculpt the memories we do have with a vengeance. But more and more, the actual events of our lives are being recorded electronically. In Facebook albums and Twitter posts and smartphone files, yes, but also in thousands of digital transactions we don’t even think about.”

  4. JasonLeopold says:

    this is a really good catch. I see that Bybee says he did not “recall,” which sounds Gonzales-Rove-esque, i.e. lying.

  5. JasonLeopold says:

    this is a long shot, but is it possible that Bybee was kept out of the loop on certain things related to torture like he was kept out of the loop regarding domestic surveillance, as the report by the five IGs said?

    • BoxTurtle says:

      Not so long a shot. They were looking at him for a judgeship and would have wanted to keep him clean for the confirmation hearings.

      Boxturtle (He should be impeached)

      • Leen says:

        that’s what John Dean shared a while back. When Dean was asked (by me) who would be first on his impeachment wish list. He answered “Addington”

        http://writ.news.findlaw.com/dean/20061215.html

        Refocusing the Impeachment Movement on Administration Officials Below the President and Vice-President:
        Why Not Have A Realistic Debate, with Charges that Could Actually Result in Convictions?
        By JOHN W. DEAN
        Friday, Dec. 15, 2006

    • emptywheel says:

      Not sure whether I think he was kept out of the loop, a la domestic surveillance, or whether Yoo was moonlighting (drational @8). Or whether he was just a really disinterested manager.

      But if either are the case, the effect would be the same, wouldn’t it? Yoo does work for Gonzales and Addington on OLC paper, and then they count it as such?

        • emptywheel says:

          Actually, I take that back.

          In 2001, Yoo’s free-lancing were treated as official opinion of OLC. It’s not clear what status they had in 2002. And in 2003, there was a push to count them NOT as OLC opinion.

          But in this particular case, it says interesting things about a memo that Yoo wrote that Bybee ultimately signed. Particularly since we don’t yet know who gave the verbal approvals that the various Aug 1 memos were meant to memorialize.

          • JasonLeopold says:

            On a side note, there is a website (if you haven’t seen it) called judgejaybybeenews.org. It’s a serious site set up by supporters. But it’s funny–and scary–when you see all of these right wing articles defending torture, Bybee in general, Cheney, etc., all in one place.

            The mission statement:

            This site was created by friends and supporters of Judge Jay S. Bybee. The unfair targeting of Bybee and other government lawyers for their opinions is unprecedented in the history of this country. We are asking reasonable people to stand up with us and say “enough is enough.”

            • timbo says:

              unprecedented in this country

              Hyperbole anyone? Anyone? And who owns the domain to that vanity site anyways? My guess is that Bybee owns the domain…because he’s that kind of cool guy.

              • Jeff Kaye says:

                Re the Bybee site, from Whois:

                Domain ID:D156114785-LROR
                Domain Name:JUDGEJAYBYBEENEWS.ORG
                Created On:12-May-2009 20:06:11 UTC
                Last Updated On:12-Jul-2009 03:55:17 UTC
                Expiration Date:12-May-2010 20:06:11 UTC
                Sponsoring Registrar:FastDomain Inc. (R1455-LROR)
                Status:CLIENT TRANSFER PROHIBITED
                Registrant ID:FAST-12785297
                Registrant Name:HostMonster.Com INC
                Registrant Organization:HostMonster.Com, POWERFUL WEB HOSTING – 1500GB Disc – 15,000 GB Transfer
                Registrant Street1:1958 South 950 East
                Registrant Street2:HOST UNLIMITED DOMAINS *FREE*
                Registrant Street3:Hosting Accounts starting at ONLY $6.95 per month –
                Registrant City:Provo
                Registrant State/Province:Utah
                Registrant Postal Code:84606
                Registrant Country:US
                Registrant Phone:+1.8014948462
                Registrant Phone Ext.:
                Registrant FAX:+1.8017651992
                Registrant FAX Ext.:

                Unfortunately, doesn’t tell us much.

  6. maryo2 says:

    The first quote is form page 66/263 of the pdf. The previous page has this

    Lt Col Baumgartner, the JPRA Chief of Staff, recalled sending a copy of the same [SERE] information that he had sent to the DoD General Counsel [Haynes] – to [redacted] attorney.

    Then Haynes recalls being asked to send it to DOJ, which means redacted isn’t DOJ or DOD, so who is the redacted attorney? And why is THAT redacted?

    • SKIMPYPENGUIN says:

      Each task force operating under a classified name with a classified mission has a JAG officer that “belongs” to them for the duration of the life of the task force.

      Contrary to popular belief, not all JAG lawyers are clean enough to get the clearances required to participate. Nor are they trusted by the commanders (Admirals, Generals and SES who want to advance to better jobs later on, have ordinary lives and kids and don’t want to have dirt on themselves).

      The circle of people who had the a) clearance b) trust and c) confidence from people who started these programs is a small circle indeed. I think the redacted lawyer was a JAG officer serving as the lawyer for a classified DoD task force. It can’t be a CIA lawyer, since that was an open secret by this time and JPRA had already sent them guidance.

      Do I have intimate knowledge of how the Justice Department works? No, I don’t want to bore myself. Do I have intimate knowledge of how JAG officers work and the process required to get them read-in to programs (and the reluctance to do so at JSOC, NSA and other agencies?)

      Yes.

  7. wohjr says:

    This issue is refusing to die, mostly through your yeoman work here, EW and commenters. My guess is the calculation on the part of Cheney & Addington is that somebody needs to be sacrificed. This is going to be Abu Ghraib part two– Yoo as the sacrificial lamb, the rouge operator with the damage undone by Jack Goldsmith, who everyone (except us) can agree is a Serious and Honorable Attorney. If we hear the words “rouge” or “moonlighting” in MSM w/r/t Yoo, its done. This fits very nicely into the theme of the last few years… not looking back at what we have become, but merely forward, towards what we would like to be, while calling out a few contemptable yet low-level operators.

    This also struck me reading the NYT article about Blackwater this morning– focusing on these yahoos who were driving around baghdad shooting up the place while ignoring the high level malfeasance or examining why or how we were relying on these sociopaths in the first place.

  8. Rayne says:

    OT — doggone it, I can’t concentrate on this. There’s an ad for McD’s showing fries on the page and I’m hungry.

    [sigh]

    Back on topic: have we ever established that a member of the DOJ can be part of a compartmentalized program? or are only CIA and DOD personnel able to be part of a program?

    And have we ever asked how the DOJ manages its work product? do they have a document management system which holds all content related to a particular issue?

    • greenharper says:

      At least up until my retirement from DOJ in 1999, dream on! In a DOJ office that I knew very well, attorneys still used bulging paper case files.

      • bmaz says:

        Heh heh, today’s modern DOJ technology is every bit as sophisticated as the court system’s PACER/ECF.

        And if you know anything about PACER/ECF, you will understand the joke totally.

      • Rayne says:

        Damn. This would make a lot more sense if this was like larger law firms where they may have case management software along with a document management system, and they simply firewalled the privileges on the case from Bybee.

        But I guess we’re saying the closest thing to a firewall was Gonzo’s briefcase or a man-sized safe in Deadeye’s office, brimming with over-stuffed manila files.

        • SKIMPYPENGUIN says:

          SAP managers are the sole owner and the only people who can grant access to them. So, just being himself (the asshole that Addington that is) was a firewall in and of itself.

          – the programs themselves were buried and compartmentalized within a highly classified program

          – He’s David Addington. The man works for Darth Cheney. Who’s going to demand to see anything of his? No one.

          – His man-size safe is inside the White House. And he knew that, and so did anyone opposed to what he was doing.

          There have been cases when people leave government and retain “ownership” of Special Access Programs. A recent example was the now-retired LTCOL that worked on rescuing the Navy Captain shot down over Iraq in 1991. Eighteen years later, he (with no clearance, and having left government and the military years before) heads up the recovery of the Captains body from Iraq. That was an exceptional circumstance (no else was around that worked on it) but it was important enough that SECDEF approved it.

          As someone who manages clearances for a living, I can tell you this is commonplace. Elizabeth Cheney holds a TOP SECRET clearance still. Nothing evil about it; it just hasn’t expired yet. She has two more years until it does, and while she no longer works at State, if someone wanted her to digest classified information, she could. And it would be completely legit and legal. This is how the clearance process works. There are contractors at Lockheed, Boeing etc that have no clearance whatsoever, and are read into Special Access Programs people in the military have no idea exist.

          Just another avenue to consider. Depending on how sensitive the Special Access Programs are, Addington could still be what’s called the “Program Manager” for a variety of different things – out of office, in private life. And that’s perfectly legal.

          *waits for the civilian lawyers to lecture him on how the UCMJ and DoD works*

          • Rayne says:

            I’m sure Addington’s in the mix, but the challenge we’re looking at in this particular post above is the possibility of bypassing of Bybee with the July 13, 2002 memo — assuming that Bybee isn’t lying about not seeing it.

            Which is why I asked about DOJ members being part of a compartmentalized program; is this possible, non-military personnel being part of a program?

            Or are you saying there must have been somebody who was a JAG, and the JAG could be anybody we are already looking at?

            Or is there a JAG here and they are conveniently “disappeared” in the documentation?

            • SKIMPYPENGUIN says:

              I’m saying there must have been somebody who was a JAG, and we won’t know who that is until they come forward or are pointed out. You don’t choose to be a JAG slot on a colored or numbered task force. You get chosen. By people like GEN McCrystal, or former LTGEN Boykin, who have the power to do so, because you’re a “good” JAG who isn’t going to obstruct the mission.

              Look, are JAGs supposed to be aboveboard? Yes. Are they? Most of the time.

              Can you go really far in your career and set yourself up with a very nice job at a contractor if you enable shady operations while you’re in?

              Yes. Happens all the time. The dirty secret JAG hates to talk about is all the SEAL JAG officers who went to work for Triple Canopy, MPRI and Xe.

              All the pay of a civilian lawyer; they keep their clearance; they’re no longer bound by the UCMJ; they come and go as they please.

              Being a lawyer for a defense contractor or a classified task force or the Joint Staff is very attractive. And you have to earn loyalty and trust to get there. This is not a TV show, people claw and fight for the top spots in JAG just like every other bureaucracy. So at some levels (SOCOM, DoD Inspector General) there is and always has been corruption amongst the JAG Corps. JAG corruption is an open secret in the military. That’s why the Haditha investigation with those Marines took so long, that was a classic case of the pot calling the kettle black and the Marine leadership wasn’t having it.

  9. wohjr says:

    Exactly. Its going to be hard to flip him, he’s been compensated well so far for whatever tarnish his “reputation” has sustained:

    Boalt
    Editorial gig in Philly
    Unlimited access to Op-ed pages

    There’s undoubtedly more

  10. Jeff Kaye says:

    I’d like to concentrate not on the how or when but on the what. Yoo says in his July 13 “memo” to Rizzo: “Specific intent can be negated by a showing of good faith.” Now, you may all disagree with me, but I think, Yoo covered his ass, in this respect, when he wrote in the same “memo”:

    Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, or did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture. If, for example, efforts were made to determine what long-term impact, if any, specific conduct would have and it was learned that the conduct would not result in prolonged mental harm, any actions taken while relying on that advice would have be [sic] undertaken in good faith. Due diligence to meet this standard might include such actions as surveying professional literature, consulting with experts, or evidence gained from past experience.

    I made this point when writing about the AZ psych eval, re the “consulting with experts” aspect. But lately, I’ve been concentrating on the fact that there is a bulk of professional literature on the effects of SERE. It was conducted in its lead by a CIA researcher, and funded by the government. As one attorney wrote to me regarding the failure to use this information by the OLC, or contrariwise, to submit evidence of it by the CIA, constitutes partial evidence of criminal conspiracy, and certainly leaves the “good faith” aspect of the CIA’s intent in huge question.

    The attorney wrote:

    The failure to include these studies in the memos is also important because the memos were another tool to accomplish torture. The memos, you might remember, did cite studies on sleep deprivation i think but twisted the results to suit their purposes. The omission of key facts, such as the observations of torture and the medical data, is contrary to the role of OLC to be objective rather than advocating for a preassumed position. The memos should have included all the facts relevant to the questions presented and the case law, pro and con, and then discussed all the facts to reach an objective conclusion.

    Now, this may be a monomaniacal preoccupation by myself, but I think not. By the way, no study of the long-term impact of these SERE techniques has ever been (publicly) made, but given that much of this research was done under the auspices of studying the effects of PTSD, a chronic, severe, long-term psychiatric illness, not to mention the severity of the effects as multiply reported, speaks to the severe, long-term harm of the SERE techniques. Asking Ogrisseg to speak as to his experience with SERE, or any other SERE interrogator/trainer, does not qualify as expert opinion, as the information is coming from the same source that is advocating the techniques, and is not peer-reviewed.

    • Jeff Kaye says:

      Not to flog a dead horse, but even though I’m no lawyer, when I say Yoo covered his ass, I don’t mean I buy his “good faith” for torture argument in the paragraph I quoted, only that he was trying to cover for himself by putting an onus of “good faith” actions on the CIA torturers. My point is that they failed the Yoo test, irregardless of its legal standing as an argument.

      • Rayne says:

        Doesn’t the point of needing to have a discussion about good faith establish there were concerns about good faith? Good faith is simply doing it by the book — not just discussing or admonishing about it.

        The only missing here is a *wink-wink-nod* to make this anything but good faith.

      • LabDancer says:

        I feel this urge to help, & that somewhere in my brain there’s this deep pithy take on this, but all my neuronal paths are blocked by sentences like this one:

        “Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, or did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture.”

        What the hell does that mean?

        • timbo says:

          Exactly. It doesn’t mean much of anything. It’s a bandaid on a bad policy, attempted. It’s a skimpy fig leaf. Because one can be prosecuted and convicted for being stupid and callous. It happens all the time…but apparently not yet if one is a thug law “scholar” from UC Berkeley, eh? These guys need to go on trial before real courts with real prosecutors. Judge Haywood would make mince out of these bozos if given half a chance. Sadly, after three or ten chances, the current American legal system seems to be, so far, bereft of anyone who can deal with these blights to the Republic’s legal profession.

  11. fatster says:

    Embassy guard photos evoke Abu Ghraib comparison
    State Department concerned over ArmorGroup delays in reporting allegations of guard misconduct
    RICHARD LARDNER
AP News
    Sep 14, 2009 13:13 EST

    “A member of a federal commission investigating wartime spending said Monday that photos showing private security guards in various stages of nudity at drunken parties may be as damaging to U.S. interests in Afghanistan as images of detainee mistreatment at Abu Ghraib were in Iraq.”

    More.

  12. Jeff Kaye says:

    OK, one more time on what I consider to be an important finding. Consider this abstract (summary) for an article on stress, which included the participation of a CIA researcher, and was funded, at least in part, by government or military funds.

    The peer reviewed article considers the effects of Hormone profiles in humans experiencing military survival training, May 2000 (bold emphases added).

    BACKGROUND: Clinical models of the human response to intense, acute stress have been limited to laboratory settings or cross sectional characterizations. As a result, data about the sensitivity of the human neuroendocrine activation to realistic stressors of varying magnitudes are limited. The U.S. Army survival course offers a unique opportunity to examine, in a controlled manner, the human response to acute, realistic, military stress. METHODS: Salivary data were collected in 109 subjects at baseline during four stress exposure time points and at recovery. Serum data was collected at baseline and recovery in 72 subjects and at baseline and during stress exposure in a subgroup of subjects (n = 21). RESULTS: Cortisol significantly increased during the captivity experience and was greatest after subjects’ exposure to interrogations. Cortisol remained significantly elevated at recovery. Testosterone was significantly reduced within 12 hours of captivity. Reductions of both total and free T4 and of total and free T3 were observed, as were increases in thyrotropin. CONCLUSIONS: The stress of military survival training produced dramatic alterations in cortisol, percent free cortisol, testosterone, and thyroid indices. Different types of stressors had varying effects on the neuroendocrine indices. The degree of neuroendocrine changes observed may have significant implications for subsequent responses to stress.

    “Significant implications for subsequent responses to stress.” Remember these words. While these results are not remarkable within the studies done within the field, they are important for these reasons: 1) they were drawn upon exposure to SERE stress (and these by voluntary subjects who were aware of the limited nature of the exercise), 2) the data was funded in part by the U.S. Army, 3) one of the lead researchers has a CIA affiliation, indicating that the information from this study was available to both the military (especially Special Forces/Operations personnel, who were big backers of Dr. Morgan’s research) and the CIA, 4) the drafters of the OLC memos were either incompetent in gathering the requisite data on the harm done by the proposed interrogation techniques, or the information was suppressed somehow, and finally 4) the data satisfies the need for predicate act in the use of these techniques upon prisoners, per the torture statute, and I don’t mean only waterboarding, which was not included in the stressors to which the subjects were exposed.

    I don’t know how much clearer one can make this. I don’t think these revelations are necessary in making the case against the OLC memos, or the actions of the CIA — not by a long stretch — however they do make the case much easier and have the benefit of pointing a possible direction towards the individuals within the military and intelligence agencies that actually drew up the torture protocols, and discovering what types of experimentation they were doing upon the torture victims.

    By the way, the above results were considered an underestimate by the authors, since the subjects were often special forces personnel, and self-selected for resilience to stress. The authors also note in the text the long-term nature of physiological changes associated to stress, though they themselves did not study that.

    And to LabDancer @35 above, I believe predicate acts are precisely those acts that make, by statue definition, a crime a crime.

  13. alinaustex says:

    [email protected]
    This might be a question for a lawyer – but if it were common knowledge that a sap program had begun breaking the law – or at least appeared to be willfully skirting the law ie torturing detainees could then a grand jury look at that sap for the alleged law breaking ? I guess what I am trying to ask is if it appeared that there was common knowledge that an Addington run sap could be killing detainees by torture -could a grand jury be convened to look at Addington’s wrong doing ? NewMexico Voice of reason – if you are reading this -what say you ?
    ( and I pray to the Maker that the answer is yes )

    • Rayne says:

      I’m wondering if a grand jury can, at a minimum, ask whether content presented to them is related to an SAP, if the SAP is active, so on, to shape an opinion about the program’s details. Rather like generating an outline of a black hole based on the details of objects around it.

      • SKIMPYPENGUIN says:

        If they have a clearance, and if they are granted access to the program, sure.

        Now, in extraordinary circumstances (which apparently happened in Iran-Contra, the older guys tell me) the Judiciary Committee and the Armed Services Committee can pass a joint resolution in closed session to overrule the security restrictions of a Special Access Program, and open it up for investigation. But that will never happen since many of these Special Access Programs originated in the Clinton Administration or the latter half of the Reagan Administration. It’s not politically feasible.

        I acknowledge that I have no legal background, and that I don’t want to have one. With that said: can the special prosecutor investigate Special Access Programs, if he stumbles upon or is showed one?

        Yes and no.

        No, he can’t just because he’s a special prosecutor, because the National Security Act and dozens of Executive Orders on classification overrules him.

        Yes, if SECDEF or the National Security Adviser (a key player) choose to grant him access. Each of the those people have their own counsel (in the APNSA’s case, they are the counsel for the entire National Security Council).
        They can simply tell the counsel to read the prosecutor into the programs in question.

        CIA’s declassification authority is separate and they play by their own rules. I have no working knowledge of how they run their shop, other than what they call themselves (CRU, Classification Review Unit).

        What I do know is that the President cannot just declassify a Special Access Program. It doesn’t work that way. He/she can only do that up to TOP SECRET/SCI material (which is why that’s all you’ve seen from the CIA FOIA dumps, it’s redacted TOP SECRET/SCI legal guidance and old memos. And that’s all you’ll get until someone does another FOIA, or, someone leaks)

        They can order to be read into a program (which, again, the geriatric set at my workplace tell me Clinton and Gore did a lot, stumble upon something and demand to be read in and briefed on exactly what it was).

        But neither the Grand Jury nor the President can “shut it down”. Doesn’t work that way. It’s the law. The closest you’d get to anything getting shut down would be a closed session we’d never hear about where Armed Services, the Intelligence Committee and the Judiciary order something pried open, cut off all funding via DoD, and cut all funding off through the budget (and “other means).

        [Disclaimer: this doesn’t mean I endorse hiding behind the National Security Act and hiding illegal or questionable programs in SAPs to avoid prosecution and exposure. The National Security Act and all Executive Orders are the law, and until it changes…nothing we can do but keep digging.]

    • SKIMPYPENGUIN says:

      Depending on how sensitive the SAP was, anyone who had legal objections would get shut down.

      The lawyers well you that’s wrong, it’s illegal…yeah. Noted.
      Compartmentalized programs are illegal to disclose. The only recourse is to report it to JAG (in the military) or the agency’s counsel (CIA, DIA, NSA).

  14. SKIMPYPENGUIN says:

    Oh, look, it’s the clearance expert again.
    Stay in your lane, I’ll stay in mine.

    His name may not be popular, but President Bush directed the National Security Council and the Director of National Intelligence to overhaul the clearance process. He got distracted (obviously) and the changes never materialized.

    But the committees have been working on it for months, and just yesterday DoD opened up their networks to DHS. That’s never happened before. But hey; I only use SIPR everyday, you I don’t know what I’m talking about.

    Do some reading about CIPA. You’ll find that even if people are brought to court later on, they can’t talk about anything that’s still classified or is deemed classified.

    (e) Prohibition on Disclosure of Classified Information by
    Defendant, Relief for Defendant When United States Opposes
    Disclosure. – (1) Whenever the court denies a motion by the United
    States that it issue an order under subsection (c) and the United
    States files with the court an affidavit of the Attorney General
    objecting to disclosure of the classified information at issue, the
    court shall order that the defendant not disclose or cause the
    disclosure of such information.

    (2) Whenever a defendant is prevented by an order under paragraph
    (1) from disclosing or causing the disclosure of classified
    information, the court shall dismiss the indictment or information;
    except that, when the court determines that the interests of
    justice would not be served by dismissal of the indictment or
    information, the court shall order such other action, in lieu of
    dismissing the indictment or information, as the court determines
    is appropriate.

    So if they can’t expose the programs and CIAs activities via the existing rules, they’ll change the rules. And the only way to do that is to change the system. Why break the rules, when you can change them?

    Programs hidden within SAPs, with ACCM controls will never come out. Unless you change the way classified material is handled, and who can authorize what. Which is what they are (clearly) doing.

    [BMAZ’s voice: Damn that SkimpyPenguin guy. He sticks with what he knows. Blast him! He doesn’t talk about the law or care because it’s not his forte! Good thing we have lawyers here to cover that side of the argument. His facts are so annoying! Ugh. I hate grey areas and ambiguity. It’s not written down! And he has links! What do I do?! He didn’t go to law school. He can’t possibly know what he’s talking about!]

    • Rayne says:

      I wonder if the overhaul was considered part of NSPD-5, the text of which has not been seen in public to the best of my knowledge.

      (Of course there’s also NSPD-6 and -7, for which we don’t even have descriptions.)

      This overhaul of the classification process would not have been under an EO, would it? or an MO?

      [edit: Okay, gentlemen, don’t make Mom pull over the car…]

      • SKIMPYPENGUIN says:

        NSPD’s and EO’s can be classified, and not released without an FOIA.
        That may have been done intentionally to safeguard whatever they plan on replacing it with.

  15. bmaz says:

    I asked a polite and simple question; as usual you respond with belligerence and scorn. Very classy. By the way, I have participated in criminal cases involving CIPA procedures before and it pertains to pre-trial procedures in the trial court, not grand juries, which was the subject of the question you were allegedly responding to above. I again request you to drop the affect and participate with some modicum of respect for others; it is not too much to ask.

      • bmaz says:

        What you feel personally does not concern me, but you will not continue to flood the threads with avarice toward me. Stop it or you will be gone.

      • bobschacht says:

        Skimpy,
        The large chip on your shoulder, towards bmaz in particular, is quite tiresome. I value your insights, but I detest the chip on your shoulder. Lose it. Please. You’re presenting yourself as a #1 a**hole.

        Bob in AZ

          • bmaz says:

            There is no reason for you to leave. There is much you have to offer here. I have said this multiple times before, but will repeat it again; I respect your knowledge in the security/classification areas you have particular expertise and value all your opinions. The rules are really not onerous in the least. I hope you will stick around and contribute constructively; there is a fantastic group here and they care about substantive issues.

  16. emptywheel says:

    SKIMPY

    Look, bmaz raised a very good point: not that you’re only contributing stuff that you’ve got knowledge on, but that it is not addressing the question at hand, and when he–a lawyer–did respond with information relevant to the content at hand, you took a personal dig.

    Now, you don’t have to respect bmaz–I could care less what you do. But bmaz is one of your hosts here, so I find gratuitous disrespect to be unacceptable.

  17. timbo says:

    My guess is that the JAGs were less corrupt here than the DOJ folks. The problem is that the DOJ not doing its duty with regard to the law lead to a degradation in the quality of JAG work. That is, if the overseers of American law are not looking at what military JAG officers are up to then it becomes problematic whether justice, military or otherwise, will be carried out appropriately.

  18. alinaustex says:

    skimpypenguin @58
    If it helps you stay here and contribute I will say that bmaz has certainly toned down his/her rhetoric toward many of us here -and for that perhaps we should in the spirit of this thread tone down ours to bmaz.
    I must say we learn a lot from both of you , and I hope we do not loose either of your contributions here.
    Regarding the Addington/sap disclosure issue .if current Secretary of Defense Gates -decided to- could he declasify the Addington sap -and as a follow on could President Obama also declassify the sap if he chose to ?
    Moreover if I follow what you have said about the declassification of this one sap-that Addington appparently has remaining control over -that this sap could have already been declassified and we would not KNOW that he had been . ( And bmaz -yes I have no proof that this has been done -this is a hypothetical question ) But if it had been declassified would that make that sap eligible for grand jury inquiry ?
    Finally skimpy would there be some way to query the Marine Corp about misdeeds done in theater that might shed light on wrong doing without breaking any national security laws ?

  19. maryo2 says:

    At this point is the consensus that the redacted attorney was a military defense attorney for a detainee who was claiming they were being or had been tortured? And this military attorney, in order to verify that the detainee had been tortured, wanted to compare the techniques that were discussed against what the detainee was telling them? The detainee could not have read the techniques memos, so if what he was saying matched the techniques, then one could surmise that indeed the detainee had been tortured and was not making stuff up?

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