A Momentous Day to Lose Your Documentation

As I explained in this post, at least ten documents that OPR should have had to conduct its investigation into the writing of the torture memos disappeared sometime over the course of the investigation (significantly, CIA had an opportunity to come and take all the documents away for a while just after OPR first got access to them).

In this post, I showed how that prevents us–at least using just the unclassified report–from confirming whether or not John Yoo ever read the document making the following points:

  • The techniques the US was considering using on detainees amounted to torture
  • Torture produces unreliable information
  • America’s use of torture would increase the chances that Americans, if captured, would be tortured themselves

But there’s one more reason losing a large document, sent on July 25, 2002 from CIA and OLC (it probably originally came from DOD), is a problem: Because that document was exchanged on one of the most momentous days of the entire development of the torture memos.

Here’s a quick review of the most significant dates in the development of the torture memos:

April 11, 2002: John Yoo and Jennifer Koester officially begin working on the torture memo, though Yoo had already done research for it

July 13, 2002: Michael Chertoff tells CIA, Yoo, and others that DOJ will not issue an “advance declination” (a Get Out of Jail Free card) covering the torture program

July 16, 2002: David Addington, Alberto Gonzales, and Tim Flanigan order Yoo to reverse course and include the Commander-in-Chief and defenses section in the Bybee One memo to make up for not offering an advance declination

July 24, 2002: Yoo gives John Rizzo oral approval to use six torture techniques (attention grasp, walling, facial hold, facial slap, cramped confinement, and wall standing) but says DOJ needs more data before approving waterboarding and other more controversial techniques, possibly including mock burial

“Some point thereafter”: Yoo tells Rizzo it will “take longer” to approve remaining torture methods if mock burial is included

July 25, 2002: CIA sends 46 to 60 pages of documents–possibly DOD documents–to OLC; those documents have since been lost

July 26, 2002: CIA sends 3 (or 4?) more DOD documents to OLC, including a list of torture techniques used in SERE; though the OPR Report doesn’t say it in the unclassified section, OLC verbally approves remaining torture techniques (except mock burial); CIA requests, for the first time, written approval for specific techniques

August 1: Bybee One and Two memos signed, as well as letter to Gonzales on CAT

There are three main plot lines, from what we can see, in the development of the Bybee Memos: first, the refusal of an advance declination and the replacement with it of other ways to allow torturers to Get Out of Jail Free. Then, the decision not to approve mock burial in an effort to get the memo quickly. And, finally, CIA’s last minute request to get the torture techniques approved in a written document.

Two of those three events happened sometime between July 24 and July 26. I’d suggest they might even be related. And 60 pages of documentation (or maybe 46, we don’t know)–documents that might explain how mock burial got dropped and/or a written list got added–have disappeared.

My gut feel is that the disappearing documents–assuming their disappearance from a SCIF was not just a remarkable accident–have more to do with the JPRA document than with the change in approach that day. But there’s the distinct possibility that those documents also would have explained more about the dropped mock burials and the written list of torture techniques.

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.

76 replies
  1. Citizen92 says:

    EW, what do you know about James(Jim) Ho?

    My research shows that he was an advisor to John Yoo during this critical time, and that he produced a memo/opinion which Yoo footnoted in one of his memos. And Ho’s memo has been beyond the reach of Senate Judiciary.

    Ho clerked for Justice Thomas (one year after Koestler did).

    Ho authored “<a href="http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/trlp5&div=12&id=&page="_Much Ado About Nothing – Dick Cheney and the Twelfth Amendment” (and thanks Liz Cheney in the credits) … and earlier authored something on Cheney’s residency in Wyoming.

    Ho co-authored a paper with John Yoo, much like Koestler did.

    Ho is described as “incredibly well connected politically.”

    After OLC, Ho worked for Gibson-Dunn, and then in the office of John Cornyn. Ho now is the Texas Solicitor-General.

    Ho is married to Allyson Newton (Ho) who worked in the GWB Domestic Policy Office, then went to be an advisor to Ashcroft. Newton has also worked for Bracewell Giuliani and Baker Botts.

    If Koester was one who got away, what about Jim Ho?

  2. klynn says:

    And something else momentous happen on the 25th irt torture:

    July 25, 2002

    •A US proposal to delay adoption of a new United Nations anti-torture pact was defeated 15-29, after which the pact was adopted by the Economic and Social Council. The US cited concerns that, if adopted by the General Assembly, American state prisons and other facilities may become subject to inspection.

    Interesting…bullshit huh?

    • klynn says:

      Some more on that UN anti-torture vote: (scroll down to police/prison to read the Washington Times article which is no longer archived at the Washington Times site.)

      Mike Dennis, adviser to the U.S. Mission to the United Nations and a negotiator of several international agreements, told the council that Washington was solidly against torture despite its objections to the protocol.

      “But the optional protocol is incompatible with the U.S. Constitution,” he said yesterday. He also said that the discussions, which were held in Geneva, had been “divisive” and that the final draft produced was “far from consensus.”

      (my bold)

      U.S. officials have said that Washington is uncomfortable with foreign monitors visiting American prisons, including the Guantanamo Bay camp in Cuba where Taliban and al Qaeda fighters are being kept.

      They also say the federal government cannot impose foreign monitors on states.

      The issue involved states’ rights, a U.S. official said after the vote last night.

      Interesting perspective.

      Note: Ronald Rotunda has done a great deal of work regarding states’ rights and abortion.

    • Leen says:

      “Crawl mother fuckers”

      Have you seen any of these clips of torture in U.s. prisons?
      Torture Inc. Americas Brutal Prisons

      Savaged by dogs, Electrocuted With Cattle Prods, Burned By Toxic Chemicals, Does such barbaric abuse inside U.S. jails explain the horrors that were committed in Iraq?

      By Deborah Davies

      They are just some of the victims of wholesale torture taking place inside the U.S. prison system that we uncovered during a four-month investigation for Channel 4 . It’s terrible to watch some of the videos and realise that you’re not only seeing torture in action but, in the most extreme cases, you are witnessing young men dying.

      • Leen says:

        Watching the Torture Inc clips again (over at Information clearing house). One of the whistleblowers of the torture and abuse that takes place in some U.S. prisons testified. Investigation into the “code of silence” protecting corrupt officers and victiminzing whistleblowers. Morality questions “starting with top prison brass”. “Questioning that “status quo” is dangerous even for politicians”

        Officer Donald Vonicker testified about a secretive gang of prison guards who called themselves the “Green Wall”. Vonicker “They were above the law basically . They used force on inmates. They beat up inmates. They planted evidence or weapons in cells”

        “Green Wall” “green line”
        Vonicker “ever since I broke the Code of Silence I have lost everything”

        “But then, as one of the prison reformers we met on our journey across the U.S. told me: ‘We’ve become immune to the abuse. The brutality has become customary.’

        So far, the U.S. government is refusing to release these Guantanamo tapes. If they are ever made public – or leaked – I suspect the images will be very familiar.

        Abu Ghraib, Guantanamo – or even Texas. The prisoners and all guards may vary, but the abuse is still too familiar. And much is it is taking place in America’s own backyard.”

        Deborah Davies “Once you know how America runs its prisons at home. Then the obscene abues at Abu Gharib are no less shocking just less surprising”

        this video clip of “Torture Inc” is shocking

    • timbo says:

      Why were they afraid that Federal and State prisons might be subject to inspection by the UN? Seriously, what is it that we need to worry about there? Fear that our penal system would lose its “scary deterrence factor” and hinder the fomenting of general fear required to keep the populace cowed into submission? Or was it simply because it would have been too hypocritical, even by America’s bright and shining examples of late.

  3. BoxTurtle says:

    Documents do NOT disappear from a scif. They may be removed, but we can be assured that we know EXACTLY who removed them.

    If a classified document clerk had mishandled them, that clerk would have been crucified and hauled up in front of a senate committee still nailed to his cross. The GOP would be anxious to prove that BushCo did not vanish the documents. That hasn’t happened.

    If the chain of custody was broken WITHOUT human “error”, then there would be public hearings on classified document control. That hasn’t happened.

    If someone signed those documents out and did not return them, that someone would be hunted down and likely lose his clearence. And possibly prosecuted. That hasn’t happened.

    If someone signed them out and lost them, that WOULD be prosecuted. That hasn’t happened.

    If someone, with the full permission of BushCo/ObamaCo, signed those documents out and hasn’t returned them, we know who that someone is and under whose authority he acted. But that would be kept quiet, to keep elected/appointed officals from getting burnt. That seems to be what’s happening here.

    Boxturtle (I have experience with Chains of Custody)

    • emptywheel says:

      That’s what I keep coming back to. Why can’t they go back to the initial SCIF register to find out what the documents were, and then match it up with the registry that came back in after CIA got done with them?

      Of course, that would entail treating this like potential obstruction rather than a simple FOIA response.

  4. Jim White says:

    I’m wondering if it’s not just the missing documents themselves that are incriminating as much as any notes that might have been scribbled on them during the key meetings. Were sections marked as especially problematic? Were strategies for overcoming them noted?

  5. Leen says:

    “July 16, 2002: David Addington, Alberto Gonzales, and Tim Flanigan order Yoo to reverse course and include the Commander-in-Chief and defenses section in the Bybee One memo to make up for not offering an advance declination”

    They sure wanted some intelligence false or true to back up their claims about Iraq and WMD’s or connection between Iraq and 9/11. True or false. Did not matter.

    Cheney international agreements.

  6. Citizen92 says:

    Recall AGAG’s problem with documents that should have been in a SCIF, and were in fact, at his home:

    This was a Gonzalez problem, who was not AG in 2002. Ashcroft was.

    However, the report does tell us there is a SCIF in the OAG, and that the OAG’s Office Manager is the SPM (Security Programs Manager*) . The report also tells us that the Justice Command Center, one floor above the OAG’s suite, is a SCIF.

    Any ideas how many SCIFs are in Main Justice? Does OLC have its own SCIF? Does OLC have an SPM?

    (I seem to recall reading somewhere that OLC is physically located very close to the OAG suite, but can’t find that… Any chance they met in the OAG’s SCIF? Probably not, given that Ashcroft and CoS David Ayres were locked out of the process, but…)

    Each component within the Department, including the OAG, has a Security Programs Manager (SPM) available to provide guidance to employees on the proper handling and storage procedures for classified information. According to DOJ Order 2600.2C, SPMs are responsible for “the management and coordination of all Department security programs and plans within their respective organizations.” These responsibilities include ensuring that employees “are fully informed and periodically reminded of their responsibilities” concerning Department security programs, and “[o]bserving, enforcing, and when necessary, implementing security regulations or procedures pertaining to the classification,… safeguarding, handling, and storage of classified national security information, SCI, and other DOJ sensitive material.”

    • klynn says:

      Great point and link.

      Especially found the section on hand written notes of interest. (p. 13 pdf.)

    • BoxTurtle says:

      Correct. But remember also that Gonzo was allowed to have those documents. He simply did not handle them properly. And it was a major protocal violation, one that would have resulted in the loss of security clearence in any lesser being. The clerks at the scif knew he had them.

      Contrast that with how these “missing” documents are being handled. ObamaCo knows darn well what happened to those docs and where they are. Otherwise there’d be a witch hunt.

      Also, typically an SPM doesn’t have to do much once the scif is approved. So there may be only one SPM at main justice handling all of them.

      Boxturtle (Gonzo’s was a knowing violation, which made it worse)

    • emptywheel says:

      More important, think about when that investigation started.

      Gonzales resigned just days after this investigation began.

      The matter was referred to the OIG by Kenneth Wainstein, former Assistant Attorney General for the National Security Division, on August 10, 2007. The White House Counsel’s Office had initially notified the Department of Justice (Department) about the matter, and Wainstein, after consultation with other senior Department officials, referred the matter to the OIG for investigation.

      That is, at a time when Alberto Gonzales was weighing down the Bush Administration, Fred Fielding informed Ken Wainstein that Alberto Gonzales was running around town with a briefcase full of TS/SCI documents. Fielding did so just 20 days after the Administration used Pixie Dust to give Cheney carte blanche to make up his own rules about how to treat classified information. And, more interesting still, it happened just 17 days before a weepy Gonzales resigned on August 27.

      So OPR gets these documents back in July 2007. Within the near term, it looks like Fielding puts Gonzales out to dry, which leads to his retirement. Within days of his retirement, OPR gets the CAT memo (though they suggest they may have gotten it from a low level OLC lawyer who gave it to them “by mistake.”

      Yeah, I’ve been thinking A LOT about how the timing of the OPR investigation coincides with AGAG’s demise.

      • emptywheel says:

        That, plus the other thing I’ve been thinkign a lot about.

        Jennifer Koester Hardy has a more successful law career right now than the fucking former Attorney General of the United States. That never happens. Similarly, it never happens that loyal Bushies are not taken care of. We further know that AGAG hasn’t exactly kept in touch with Bush and Cheney since he left. Ergo, we have to conclude that AGAG, unlike Koester, is no longer regarded as a loyal Bushie.

        So what’s up with that?

        • Citizen92 says:

          So does James Ho.

          “Well-connected politically” and now Solicitor General in Texas.

          Would you lump AGAG and John Choon Yoo in the same pot? (Yoo’s prospects are pretty dim too, just hanging on in academia).

        • bobschacht says:

          I think we’re seeing more and more evidence that Bush’s second term underwent a series of major internal attitude changes: Cheney, Addington, Gonzales, Rumsfeld and others lost power and influence they had seized in the immediate aftermath of 9/11, as the grown-ups grew in power and influence. The idea of “looking forward, not back” didn’t start with Obama; it started during Bush’s second term. Note that Taguba’s report on Abu Ghraib came out in 2004, following a 60 Minutes II news report (April 28) and an article by Seymour M. Hersh in The New Yorker magazine (posted online on April 30 and published days later in the May 10 issue). And we know about the firestorm that followed.

          Has anyone taken a detailed look at this power shift?

          Bob in AZ

          • Leen says:

            Hell when Comey, Ashcroft, Mueller etc were threatening a mass resignation one would think some lightbulbs would go off in Bush’s (Rove’s) brain.

            Not that they cared about the illegality of anything they had done. A mass resignation would not have been so good for Bush getting elected the fall of 2004 (selected in 2000)

        • R.H. Green says:

          Regarding your remark about the poor fate of AGAG, (my recollection of these events is a blur, but I rely on your retelling), your description of Fielding (Comment 14)informing on AGAG seems like a whackjob. Perhaps he somehow sinned.

            • qweryous says:

              Alberto Gonzales background differs from many of these others, in that he appears to have been a ‘Bush barnacle’.

              As was Supreme Court Justice Harriet Miers, and that also turned out not so well.

              Which offers opportunities for him to make ‘different mistakes’ than the others.

              • bmaz says:

                At least Miers got to go back to her old law firm; nobody, but nobody, wants AGSquared. Dude has a Harvard law degree and is a former Texas Supreme Court judge and US Attorney General. Can’t even get a job at a McDonalds.

                • qweryous says:

                  Look at what has been posited re power struggle between factions ala what [email protected] says above LINK:

                  That there was more than one faction by ca 2004 seems obvious; and if you ‘cross’ one your future career is still ok.(depending on what you did).

                  Make the mistake of crossing two (or more?) of the factions (with one act? or more than one act?) and depending on the nature of what was done…reduced to endless job hunting?

                  Or perhaps he made some mistake that is unintentional but made him unsuitable for continued membership in the clubs?

                  Maybe failed to pay attention to some minor detail that has left others in some perceived jeopardy?

  7. harpie says:

    Some of the balls these clowns were juggling around this time:

    *During this time, both Binyam Mohammed [for 18 months from July 21, 2002] and Abou Elkassim Britel [for eigtht months from May 24, 2002] were in secret CIA detention in Rabat, Morocco.

    *July 23, 2002 was the day “The Downing Street Memo” was written about possible war with Iraq. [“the intelligence and facts were being fixed around the evidence…”]

    *In August 2002, the Intelligence Science Board is chartered. Their Report: “Educing Information-Interrogation: Science and Art; Foundations for the Future”, Intelligence Science Board, 12/06 http://www1.umn.edu/humanrts/OathBetrayed/Intelligence%20Science%20Board%202006.pdf

    On September 7, 2002, the NYT writes: “The Bush administration is shifting its emphasis in seeking exemptions for Americans from the jurisdiction of the International Criminal Court, telling European allies that a central reason is to protect the country’s top leaders from being indicted, arrested or hauled before the court on war crimes charges, administration officials say.”

  8. Mary says:

    I really do think that info on the handling of al-libi may be a part of what is involved, or if not in the 46/60 missing pages, at least in some of the behind the scenes cables and discussions that may never see the light of day.
    IMO – there’s an interesting evolution in the public story of just what it was that “broke” al-Libia to the point where he provided that wonderful info on Iraq training al-Qaeda.

    By July, 2002, al-Libi (who had been captured in Nov 2001) had been in Egyptian hands for awhile, providing what Dick Cheney wanted. Initially he was questioned by FBI using standard techniques and provided information on Richard Reid and Moussaoui etc.

    Al-Libi was initially held by the US at Bagram, but the Kabul CIA station chief (identified in some places as Richard Blee, also discussed in this Harper’s piece under the name “James”) pitched a fit over the FBI questioning (he seems to have had a pre-911 history of not sharing with FBI to other disastrous results)

    So “Rich B” pitches a fit, gets Tenet’s support and in January, 2002 a former FBI agent turned CIA breaks into an FBI interview with al-Libi and gloats to al-Libi that the agent is going to go rape al-Libi’s mother and preens that al-Libi is being shipped to Cairo. The next day, al-Libi is shipped off to Cairo. Some effort is made to make it seem that the CIA believed al-Libi was Egyptian (which would make the rendition less “on its face” about torture) but that is pretty shot down by FBI interrogators involved.
    In Feb 2002, a DIA analysis of al-Libi’s Egyptian info is generated that questions the info’s credibility based in part on the questioning tactics being used. (As an aside, in March, 2002, the FBI is allegedly threatening Higazy – whose case has been settled by Obama – to have his sister picked up by Egyptian authorities and handled by them, and the FBI “achieves” a confession from Higazy, one that is later proven to be completely false).

    In 2005, ABC prints the kinds of torture allowed by the DOJ, including cold cell/water dousing and water boarding and sets out that these things were put in use from March, 2002 on. This timing would possibly fit with the purported “breakdown” of al-Libi in March 2002 which led to him giving info on where to find that other (al-Libi falsely confessed to being a member of al-Qaeda’s Shura governing council) al-Qaeda mastermind, Zubaydah.

    Very shortly after the late 2005 ABC piece, Doug Jehl produces a story about al-Libi that attributes the initial debriefing and success to CIA (not Fincher or FBI) and makes the bizarre claim that al-Libi is transferred from CIA to Egypt “because the White House had not yet provided detailed authorization for the C.I.A. to hold him.” Uh huh.

    Meanwhile, the story coming out – along with the info that waterboarding had been “approved” – is that al-Libi broke after waterboarding.

    Cannistraro, former CIA CTC head, admits in 2006 to Frontline that anyone involved in the al-Libi rendition knew he was being shipped to torture in Egypt. Suskind reports that al-Libi was waterboarded. Wilkerson mentions al-Libi being waterboarded. Somehow, sourcing was going out that al-Libi was “broken” via the DOJ approved mechanism mechanism of waterboarding at about the same time as evidence of what waterboarding actually took place (as opposed to what DOJ approved) was being destroyed.

    The story of al-Libi being broken by live burial instead didn’t come out to my knowledge (no exhaustive search so I may well be wrong) until 2006 and the Senate Intel report.


    I may have the timing off and be missing lots of other reports of live burial that were out there contemporaneously with the mysteriously disappearing waterboarding stories, but it seems to me that there was an effort made, when CIA thought someon in Congress or the media might give a damn about al-Libi and all the Americans and Iraqis who died because of his torture, to link al-Libi’s info to a DOJ approved technique, waterboarding. As he came back and the SSCI report phase II was released the end of 06, no one was mentioning waterboarding anymore and the story turned to al-Libi’s descriptions of live burial (which DOJ expressly rejected). Given that all of al-Libi’s interrogations were supposedly directed by the CIA while he was in Egyptian hands, I think that is probably significant.

    The guys who took al-Libi from the FBI and sent him to Egypt for no believable reason other than to be tortured in his interrogations and who would have known per Cannistraro he was going to be tortured, even if they could produce some “subjective good faith” reason (EW – this ties to something else as you can probably tell) other than torture to ship him there (like Rice’s shot at *they know about the culture*), and for the live burial, there was no DOJ out given. Not only that, but the torture is what ended up CREATING an onslaught of ticking time bombs in Iraq, not finding it for us.

    The guys (and girls) who conspired to ship al-Libi off for Egyptian torture, including non-DOJ approved live burial, (while al-Libi had no ties with Egypt) and then laundered that torture information into the Powell presentation and the US domestic press via domestic propaganda, well – the results of their torture don’t really fall under any kind of “necessity” out. Their only out would be someone believing that “if the CIC orders it, it’s legal” Or a US jury believing it was a military necessity to torture lies out of al-Libi to rig a war in Iraq.

    And all of that is certainly something Egypt would NOT want to be involved in; no way, shape or form. So then you have the diplomatic overlay as well, with one of our strongest “allies” in the ME and an ally already undercut by the Muslim Brotherhood.

    All of which is just one set of spec – there are so many reasons for so many things to have disappeared over the years. Still, the way everything about al-Libi has been so ignored and stifled, you sometimes wonder about the dog that doesn’t bark.

    • emptywheel says:

      And two more things.

      !) We knwo that CIA had worked out its necessity defense by February 1 (per my last working thread)

      2) al-Libi got killed at about the time these underlying documents came out

      • Mary says:

        You must be mistaken – I’m sure I heard he committed suicide. /s

        And somewhere in there, Obama committed to Kappes.

          • Mary says:

            I guess when they key word search for the assassination memos, we know the term they should use.

            • DWBartoo says:

              How did that theme song from M*A*S*H, the movie go?

              Da-di-da “… is painless, it brings on many changes …”

              Especially, when the rule of law is joyfully disappeared down an Argumentum ad baculum-framed and twitted rabid hole …

              But there were catches … twenty-two

              And now … REALITY, is what “they” say it is.

              Henceforth all inspiration is Divine and the Official American History will record that brave and truly steadfast John Choon Yoo was merely doing Gawd’s work as the Big Guy was busy elsewhere, somewhere safe, somewhere very secure, perched upon his special branch, while Dutiful Son cleared brush, far below.

              Out damned Spot! We’ll have no more pissing and moaning on the floor.

              “Evermore” spaketh the craven …


      • bmaz says:

        What seemed convenient at first blush when it happened, becomes strikingly ever more fortuitous eh? Well, things happen, people just die sometimes ya know…..

        • DWBartoo says:

          Yeah, you’ll have that …

          (I just never realized how much the “law” apparently depends on such fortuitous circumstance, silly me. But I’m learnin’.)

    • burnt says:

      I put a searchable version of the Senate Select Committee on Intelligence’s Report on Iraq’s WMD and terrorism links from September 8, 2006 at the usual spot here

      It’s named “ssci08092006searchable.pdf”

      And something I should have warned about before but everyone who is using Adobe Reader should be running 8.2.1 or 9.3.1. If not, go to adobe.com and upgrade or use the “check for updates” from within Adobe Readers “help” menu.

      The other thing you should do to protect yourself from drive-by pdf infections on the web is disable javascript from within Adobe Reader. Open Reader, pull down the “Edit” menu, select “preferences” and in the left-hand column about halfway down will appear “javascript”. Highlight it and then uncheck the box that reads “Enable Adobe Javascript” and press “okay”. You can always enable it if you really need it.

      • Mary says:

        Wow – thank you and especially thanks for the “even someone like me” can follow info on how to disable javascript within Adobe Reaer.

        It’s almost as if you read my mind when I was trying to search through that damn thing to find the pages talking about al-libi.

      • JClausen says:

        I do not no who you are, but your efforts are greatly appreciated.

        Can we call you “Deep Throat?”*g*

        • burnt says:

          Thanks, unfortunately, I’m not nearly as anonymous as Deep Throat. Fortunately, I share my name with a popular character from Highlander and a talented BMX rider so googling me requires a modest amount of effort.

  9. orionATL says:

    the point i’m about to make has neen made by otbers, notably, boxturtle, but i put it my own way.

    it seems to me that all those at doj’s opr who worked on the yoo torture rational are responsible for the outcome. that includes the current head of opr and any lesser dignitaries who signed off on the report statibg that the review/investigation was concluded.

    it is not creditable to me that experienced attorneys would not understand the central importance of missing documents in general and of key documents like the 45-60 pp bu dle ew highlights.

    the opr report on yoo/torture authorization can be seen as a part of the obama administration’s efforts to protect the gwbush administration from any legal consequences for its actions,

    and i mean an across-the-board effort by the obama boys to protect the bush boys whether in the latter’s foreign policy or domestic policy illegalities.

    for this stay-out-of-jail-free card to have staying power,

    it is necessary that no jailbirds down the chain of command begin to sing.

    clearing john yoo of prof misconduct charges was essential to this obama strategy. one could say it was foreordained,

    given the damage

    an angry yoo

    could do.

    i would expect more of these stay-out-of-jail cards to be issued to minor bush admin officials by the obama boys.

  10. Jeff Kaye says:

    Re whether there were other JPRA documents in the missing group. Is it possible there was more than one document that critiqued waterboarding, and more specifically than the “Operational Issues” document did? I can document that such internal protest against waterboarding at JPRA goes back to at least 2005, but that doesn’t mean it goes back earlier than that. If I had info going back to 2002, I’d publish it. But given this should have known during the Levin hearings (not publicly, mind you), then I wonder why this was not pursued by the committee. And I say should have been known because protests had, by the time of the hearings, already gone up to the Flag officer level.

    In any case, there are even hints in a Bruce Jessen doc from 2001 (which I’ll quote in my upcoming article) that the physical techniques, like waterboarding, might have been too much for even the SERE school.

    So I’m left wondering, were there more and earlier documents protesting how waterboarding was causing harm in the SERE schools, i.e., inducing “learned helplessness” in students? And were any of these suppressed?

    • earlofhuntingdon says:

      As you and others have pointed out, being waterboarded by friendly forces and accepting it as part of the training – to prepare you for what others might do – is a process that can be stopped at any time by using the code word or sign. For a prospective SEAL or flyer, it means dismissal from the course and career path, an incentive that helps one put up with torture.

      That is not the same process or threat posed by being waterboarded by soldiers who consider you an enemy of their god and their country, who literally piss on your holy book, who have kept you exhausted and brutalized you for days. A prisoner subject to such treatment has no cod word or sign to make it stop. Every gulp of water or ticking second inside a coffin for a “mock” burial might well be their last. The threat of death is real, it is imminent, both physically and psychologically.

      It’s torture. No “necessity” or “exigent circumstances” exception exists to permit it without criminal liability for the torturer and those who authorized torture.

      • Mary says:

        It’s pretty much like saying that since so many teenagers survive handling the fake babies without killing them in their HS parenting classes, it’s a great idea to give them all real babies instead and just see what happens. What could go wrong?

      • klynn says:

        A key word in Justified War Theory is proportional. As I wrote the other day,

        Torture is neither proportionate nor allowed due to motive.

        And, “exigent circumstances” does not adequately nor specifically explain how our EIT’s are different from the historical practices of torture.

        As you write, “It’s torture.”

  11. earlofhuntingdon says:

    Is it too much to remind Mr. Yoo that “exigent circumstances” were never a legally sufficient rationale for committing torture?

  12. tjbs says:

    I’ll bet those ten concise torture tips don’t look anything like that on the tapes. Let’s roll the tapes ,shall we. ( They”re out there, not an 18 minute tape erasure) Anyone possessing any of the torture tapes have a definite “get out of jail card”.

    The voices in the background will astound us all.

  13. Mary says:

    Related to my 16, it’s a bit weird, the linkage between Fincher and Blee. While they were both very involved in the national security response to al-Qaeda, it seems like Blee always got the upper political hand. Not turning over info Fincher was seeking pre-911 (cutting FBI out of the al-Qaeda info) and ending Fincher’s (and FBI’s) involvement in interviewing al-libi; Blee always ‘winning’ politically, but always with disastrous consequences for Americans.

    • bobschacht says:

      Fincher and Blee? This is a joke, isn’t it? I don’t see any mention of them in your #16, and the names don’t ring a bell. What am I forgetting?

      Bob in AZ

  14. justbetty says:

    Related: John Yoo is on Fox News right now justifying his legal opinions with phony baloney excuses such as: it couldn’t be torture because we do it to our own soldiers, and we have to give the soldiers freedom to fight the war without fear of investigations. With that second excuse, what behavior would ever be inappropriate? Sickening.

    • Mary says:

      Where was he when the Abu Ghraib scapegoats were being investigated and prosecuted and all the pics were fresh on the screens?

      Obama’s failure to lead has allowed Cheney and Yoo to set the course for the narratives and the country. For once I agree with Milbank’s evaluation – we might as well have elected a balloon with a smiley face as President.

  15. Mary says:

    BTW – Here’s what Rahm’s deals with Graham and the Cheneyites buys:

    Liz Cheney’s commercial about Holder hiring lawyers who “represented terrorists” and calling them the “Al Qaeda 7” and trying to put them on every nut cases’ hit list around.

    • bmaz says:

      You know, a lot of very big, important and connected, even in conservative circles, law firms had attorneys working on these cases; were I them, I would be livid at this crap and would have my defamation section gearing up to skewer her lengthwise and picking out an apple for roasting garnishment in the mouth.

      • Mary says:


        @53 – They’re both there, but the Fincher bit is really passing.

        Richard Blee is/was a CIA officer. There is a lot of redaction and ambiguity in the reporting on him after 911, but all lot of the sourcing says something along these lines (all of which is with the caveat that none of this is publically acknowledged by CIA and some the conjecture may not be accurate)(if you go to the history commons link it fleshes things out)

        *He succeeded Scheurer in running Alec Station, the CIA Bin Laden desk.
        *He is referred to as Richard in the 911 Commission report, Rich in Coll’s Ghost Wars and Rich B in Tenet’s book, and James in a 2007 Harper’s piece by Silverstein.
        *He was involved in the pre-911 failures (the following taken primarily from the History Commons link)
        – – – When FBI officers detailed to Alec Station learned one of the soon to be hijacker’s, Khalid Almihdhar, had a US visa, Blee’s deputy prevented them from telling FBI (Russell Fincher and Ali Soufan were two FBI agents who were working on the Cole bombing and from whom the CIA, apparently via Blee and his deputy, withheld info an Almidhar and Alhazmi)
        – – – Blee was handling the CIA surveillance of the al-Qaeda summit meeting in Malaysia and when three of the big names left on Jan. 8, CIA lost them at the airport and, although the other attendees had left as well, Blee tells his CIA superiors that surveillance of the summit is still ongoing on Jan 12 and that the attendees were still being tracked on Jan 14
        – – – “There has been speculation that the reason the information was withheld was to enable the CIA, perhaps using a group of former employees or confederates, to monitor Almihdhar and Alhazmi in the US without having to worry about a competing FBI surveillance team.”
        – – – Fincher and Blee cross paths in Afghanistan for the interrogation of al-Libi. Blee is now the CIA station chief in Kabul and FBI has teamed Fincher on site (and Marty Mahon) and FBI agent Jack Cloonan at headquarters as their interrogation team for al-Libi, who is being held at Bagram.

        – – – Fincher begins using traditional techniques and getting info.
        – – – Blee, who may have been tied to some of the CIA failures to provide info to the Fincher/Soufan/O’Neill et al FBI crew investigating al-Qaeda, now decides to (again) obstruct the FBI’s investigation and despite the fact that Fincher is having success, Blee pushes Tenet, successfully, for the OK to ship al-Libi to Egyptian torture.

        (fwiw, Fincher was also the FBI agent sent to Chicago to interview, then arrest as a material witness, Jose Padilla).

        Also fwiw, as Mayer outlines in her book, The Dark Side al-Libi talked so much to Fincher and Mahon that they had to keep pockets of pens
        being constantly warmed by their body heat, bc it was so cold in the office where they were interrogating al-Libi and he was giving out so much info that the ink in the pens would freeze before they would be done taking down the info.

        She also describes how the CIA broke into the FBI interrogation and strapped al-Libi to a stretcher, rapping him, including his mouth, in duct tape and took him off to the screams of a newish CIA officer (who had been an FBI linquist working under Cloonan earlier) that al-Libi was going to Egypt and the CIA officer was going to rape al-Libi’s mother.

        Mayer also describes that Cloonan confronted Mueller over the whole thing and Mueller just shrugged it off – unconcerned. Her description of Bush’s role in handing CIA the jurisdictional victory over FBI and the really wiggy way he wanted to publicize the renditions to torture so the people in the US could keep score of who we had snatched and shipped off for torture is very creepy-crawly.

        • mike123 says:

          Soufan rejected the very premise of the torture program when he testified that legal FBI methods were working. A good analogy would be Cheney going to the CIA to pressure the intelligence analysts regarding Iraq’s WMD’s. Cheney wanted the OLC to approve the use of torture and they complied.

          How did Blee keep his job after 9/11? Why was he promoted to Kabul station chief? In The Looming Tower, Wright describes Alec Station’s conduct (withholding information) as tantamount to obstruction of justice in the USS Cole investigation. What on earth was Blee doing? Also of note is that Blee’s 9/11 Commission MFR (interview summary) is still pending classification review. The secrecy enables the propaganda, fearmongering and lawlessness to flourish.

        • harpie says:

          Hi Mary,
          I don’t know much about all of this, so take this fwiw, but I did read the HC link and the comments. The last comment has links to a new article Jan 23, 2010 called “Additional Information and Possible Retraction about Richard Blee” [which I haven’t finished reading, yet.]


          Maybe you’ve already discussed this, as I haven’t been following closely.

          As far as I’m concerned all roads lead back to Cheney.

        • Leen says:

          “*He succeeded Scheurer in running Alec Station, the CIA Bin Laden desk.
          *He is referred to as Richard in the 911 Commission report, Rich in Coll’s Ghost Wars and Rich B in Tenet’s book, and James in a 2007 Harper’s piece by Silverstein.
          *He was involved in the pre-911 failures (the following taken primarily from the History Commons link)
          – – – When FBI officers detailed to Alec Station learned one of the soon to be hijacker’s, Khalid Almihdhar, had a US visa, Blee’s deputy prevented them from telling FBI (Russell Fincher and Ali Soufan were two FBI agents who were working on the Cole bombing and from whom the CIA, apparently via Blee and his deputy, withheld info an Almidhar and Alhazmi)”

          “She also describes how the CIA broke into the FBI interrogation and strapped al-Libi to a stretcher, rapping him, including his mouth, in duct tape and took him off to the screams of a newish CIA officer (who had been an FBI linquist working under Cloonan earlier) that al-Libi was going to Egypt and the CIA officer was going to rape al-Libi’s mother.”

          “creepy, crawly” so fucked up

          This guy took over Scheuer’s job? So they did not want to find Bin Laden?

          • Gitcheegumee says:

            Here’s a LOT of info-including some weedy data re: Blee,Jawbreaker, and Cofer Black .

            Incidentally, Richard Blee’s father,David Blee,who died in August 2000, was a really BIG figure in “spy” circles. James Risen wrote his obit in the NYT,fwiw.

            Private Military Contractors – Data Dump – Page 7 – DEEP POLITICS …A warning cable was drafted by the FBI liaison officer, but withheld at the direct order of the CTC Assn’t Director, Richard Blee, Cofer Black’s No. 2. …
            http://www.deeppoliticsforum.com/forums/showthread.php?p=15498 – Cached

    • Leen says:

      Liz Cheney doing her best to undermine the Dept of Justice. That letter that Holder and Gates sent to Pelosi and Reid should be sent to the Save Cheney (keep America unsafe) group.

      Wondering if Liz and team would be wiling to pick up the who, when, where of the Niger Documents and the rest of the false pre war intelligence that no one has been held accountable for.

      Oh yeah that would be her funders

  16. Gitcheegumee says:

    John Walker Lindh: The Original Bush Era Torture Victim?

    Bush/Cheney Torture Campaign Began with Rumsfeld Instructions to ‘Take the Gloves Off’ with John Walker Lindh
    by Dave Lindorff

    As pressure mounts for an investigation or criminal prosecution of the officials and the decisions that led to an official government program of torture, the case of John Walker Liindh, the young American fighter arrested with the Taliban early in the Afghanistan invasion, may offer an example of the earliest case of documentable officially sanctioned torture.

    One of the documents obtained by Lindh’s lawyers, who finally got on the case once Lindh had been flown home by the government to face trial on a terrorism charge of helping to kill Americans, was a written memo from the office of then Secretary of Defense Donald Rumsfeld, instructing Lindh’s captors to “take the gloves off” in interrogating him. The memo, signed by Rumsfeld’s Defense Department General Counsel William J. Haynes II, does not lay out in detail the specific treatments to which Lindh can be subjected, but appears to simply tell his tormentors that they are free to use harsh measures. this Rumsfeld office memo, written back in December 2001, in a sense opened the door to the torture of captives with the encouragement of Rumsfeld and the Bush/Cheney administration.

    Back in June of 2002, torture by US forces was just a faint rumor. Now, with the release of memos by White House and Justice Department lawyers authorizing official torture retroactively and going forward, and with evidence that has shown torture to have been widely practiced on people held in American captivity, it is clear why Chertoff and the Bush/Cheney administration went to such hurried and extraordinary lengths to completely silence Lindh. His wasn’t just the first trial in the “War on Terror.” Lindh was the first victim whose torture could be shown to have been officially sanctioned.

    Timeline: June 12,2002 Lindh evidentiary hearing before Judge TS Ellis

    (This would provide opportunity to provide corroborating witnesses to his torture at hands of US captors)

    July 15,2002Lindh accept’s Chertoff’s plea deal and pleads guilty to two charges,and agrees to a gag order to not speak about his treatment during captivity. He is given a 20 yearsentence.

    NOTE: This is one day prior to the July 16,2002 Yoo meeting where Chertoff admonishes Yoo about no get out of jail free card.- the SAME day Bush unveiled the Homeland Security plan to the public .

    Considering the sugnificance of the timing of Lindh case and the ramifications for torture, Yoo’s mewing are repugnant.

  17. Gitcheegumee says:

    The Interrogation DiariesDOD015552-DOD105647 in the ACLU FOIA collection is a 96-page compilation of the findings …. You probably remember John Walker Lindh, the American Taliban. …
    interrogationdiaries.blogspot.com/ – Cached – Similar

  18. kgb999 says:

    During this time period, there was quite a lot of movement on torture from the military side as well. During this whole time, there was a flurry of documents being shuttled to Haynes’ office from JPRA.

    According to the SASC report(Pages 24-31), on the 24th JPRA psychologist Ogrisseg writes report on long-term effects of SERE techniques. Also on that day, Shiffrin requests information on exploitation techniques from JPRA at behest of Haynes. On the 25th Shiffrin got a response from JPRA with the current training lesson plan. On the 26th another exploitation memo comes from JPRA, seemingly in response to questions from the 24th/25th documents. Also on the 26th, an additional entity (redacted) requested copies of the JPRA documents. I think it should be safe to assume that these documents were generated pursuant to the torture memo debate, so shouldn’t we expect they would be referenced somewhere?

    Another thing that happened during this period was that Yoo issued the “Army torture memo” to Haynes’ office on July 22. So clearly, in addition to the CIA; these opinions are being generated in a wider discussion of interrogation that goes well beyond just the CIA and Abu Zubaydah (or al-Libi).

    IMO, whatever is going on with the CIA; the DoD appears to be using the process to authorize it’s own (JSOC?) torture program at the same time – and they seem to be running point on compiling a lot of primary documentation (since it came from JPRA that would make sense). I think the CYA operation here isn’t necessarily geared only (or even primarily) at protecting the CIA.

    IMO, Yoo plays kind of a cute game trying to pretend his mind is an etch-a-sketch; that each decision is made in a vacuum and the preponderance of all his work didn’t create a “larger picture” where a reasonable human would be expected to discern the operational intent behind the requests for opinion.

    • emptywheel says:

      Also note, as I reported earlier, one of the things the OPR report reveals is that Yoo was consulting with Haynes in the leadup to the Gitmo memo, which everyone had denied before.

      • kgb999 says:

        Yep missed that post from yesterday. And I misstated something in my above comment. On July 22, 2002; Yoo issued a memo to Gonzales stating “international law lacks domestic legal effect, and in any event can be overridden by the President at his discretion.”. This was referenced in the Yoo Army memo … issued to Haynes on March 4, 2003.

        I still think the events indicate a strong CYA interest both by the DoD and the CIA. My strong belief is we’re going to find folks under CENTCOM were involved with waterboarding in Afghanistan at about this same time.

        And along those lines, if a CIA operative is embedded with a military unit; when it comes to congressional oversight, can they assert those operations are military and not intelligence? And the other direction, would a mixed unit of military, CIA, and contractors be able to assert their actions fell under intelligence for the purposes of oversight at the SASC?

  19. emptywheel says:

    Btw, here’s one other thing about CIA’s timing in removing all the OLC documents from the SCIF.

    We know they returned the documents in July 2007, but don’t know when they took them.

    But we do know that by that point, SASC was already investigating the torture program. They interviewed Jessen in the middle of July.

  20. Leen says:

    “Liz Cheney doing her best to undermine the Dept of Justice.” and National Security. Seems to be a family tradition.

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