The Legal Principles Document and OLC’s Leaky SCIF

Sorry to get so deep in the weeds on the missing OLC documents, but I wanted to show why this matters, using the example of the Legal Principles (AKA the Bullet Points) documents. As I’ll show below, one of the most sensitive documents involved in the controversy between CIA and OLC on the Legal Principles is one of the documents over which there are discrepancies between the  Vaughn Indices and the actual document.

I explained the Legal Principles document in detail in this post, but here’s the short version. When CIA started the Inspector General investigation, it had a meeting with DOJ people including Michael Chertoff and then a phone conversation with John Yoo. Both times, DOJ told CIA that it (DOJ) would hold off on any criminal investigations or prosecutions until CIA’s IG first collected information and then presented that along with the legal guidelines CIA had been working under. DOJ basically told CIA, “You tell us if you broke the law.” So CIA got together with John Yoo (though he denies being involved) and Jennifer Koester, who were both apparently free-lancing with no official OLC involvement, and developed a document–alternately called the Legal Principles or the Bullet Points document. The document interpreted the law and previously OLC opinions as the CIA would like them to be to make sure as much of the torture as possible was “legal.”

When Koester and Yoo moved on in May 2003, CIA tried to dump the document as a finished fait accompli back onto OLC. Even though Patrick Philbin, picking up Yoo’s duties, immediately refused to recognize the document as OLC work product, CIA kept insisting it counted as an OLC document. They did so in a high level meeting at the White House in June and then ultimately made it into a slide for a meeting with the NSC Principals on July 29, 2003, at which the Principals bought off on the torture as it had been applied. Then, CIA submitted the document with a late draft of the IG Report in March 2004, which (Jack Goldsmith claims, though the CIA claims differently) was the first time Goldsmith saw the Legal Principles. A bit of a spat broke out which not only prevented CIA and OLC from submitting joint comments on the IG Report (and, presumably, the legality of the acts described therein) as they had intended to do, but also in Goldsmith writing grumpy follow-up letters to CIA on it. And all of this was right before Goldsmith withdrew the Bybee One memo.

As you can see, the Legal Principles document were not only a source of tension between CIA and OLC. But its lies at the core of interpretations of just how illegal the CIA program was.

Which is why I find it relevant that the various iterations of the Legal Principles document are some of the documents that seem to have been affected by OLC’s leaky SCIF.

Here are the various incarnations of the document we’ve seen in either Vaughn Index mention or hard copy form (2005 Vaughn; 2007 Vaughn; 2009 Vaughn; Barron Declaration).

OLC 17: April 28, 2003 5-page copy of Legal Principles hand-carried (OPR report says faxed) to John Yoo; released with redactions

OLC 18: May 27, 2003 5- or 6- page copy of Legal Principles, that appears to send CIA’s hand-written comments back to a DOJ lawyer; withheld in its entirety

CIA Other 25: June 16, 2003 8-page copy of Legal Principles sent internally (probably twice) within CIA; withheld in its entirety (Note, we know from the OPR Report that there is a CIA Memo for the Record written about this document, so the longer length might reflect that it includes the MFR)

CIA Other 23: June 16, 2003 4-page copy of Legal Principles sent internally within CIA; withheld in its entirety

OLC 19: June 16, 2003 5-page copy of Legal Principles faxed from CIA Counterterrorism Center  to Patrick Philbin (and maybe someone else); released with redactions

OLC 22: March 2, 2004 8- or 13-page request faxed from CIA General Counsel Scott Muller to Jack Goldsmith asking for reaffirmation of several legal documents, including Legal Principles document; released with redactions

[Update: OLC 139, 140, and 151 may be notes related to the Legal Principles document.]

I’m sure I’ll find several more copies of this in CIA Vaughn Indices, but what we’ve got are two versions that were held at CIA’s OIG, which have been withheld (one with the anticipation of legal proceedings). Then we’ve got four copies that were at OLC, just one of which (the one including hand-written notations from someone at the CIA) we don’t get.

Of the four versions of this document that were held in OLC’s leaky SCIF, just one has no apparent problems. But it’s the last one, OLC 22, that has significant issues.

OLC 17: All three Vaughn Declarations describe OLC 17 as a 5-page document–a 1 page cover sheet and four pages of text. In fact, it has 6 pages, but the earlier descriptions apparently don’t count the Top Secret Routing sheet now included with the document. And while the OPR Report says this document was “faxed” from Muller, the cover sheet clearly says, “This document has not been sent via fax” and, indeed, the document lacks any fax timestamp. This document is particularly curious, since it includes two very similar, but not exact, versions of the Legal Principles. Note, this document includes the “17” penciled in on the lower left hand corner from when an OLC lawyer tried to reconstruct this Vaughn Index in 2007-2008 (there seems to be a second penciled number in the lower right corner, perhaps for a different FOIA?).

OLC 18: We don’t get to see this document, but it has the same page number discrepancy: the earlier Vaughn Indices don’t count the Routing Sheet (which presumably also labels the document as Top Secret), so the most recent Vaughn Index says this document is off by one page.

OLC 19: As with the other documents, there is some discrepancy on whether you count the Top Secret Routing sheet. But otherwise this appears to have no errors noted in the Vaughn Indices. As with OLC 17, this shows two separate series numbers on the bottom left and right corners of the front page.

OLC 22: This is the document that intrigues me. Just by way of observation, this document only has one series number on it–in the bottom left corner as documents in this series are marked–so it doesn’t appear to have been included in whatever FOIA series the other two were included in. And unlike the other two documents, it bears a fax timestamp, making it clear that it was faxed from CIA. But the big discrepancy here is that it is unclear how many pages this document is supposed to have. Both earlier Vaughn descriptions say it has 8 pages, and describe the set as it currently exists (a cover sheet, the 4-page Muller letter, and the 3-page Legal Principles document). But the initial Vaughn description, and the cover sheet of the document we now have, says the document is 13 pages long–5 pages longer than its current form. The fax timestamp doesn’t help us, because it matches the pagination of what pages we do have; if 5 pages have been removed from this document they’ve been removed from the back.

So even before we get to the content of OLC 22, we’re stuck trying to guess whether Scott Muller just mislabeled the number of pages of this document before he sent it over to Goldsmith, whether Goldsmith lost the 5 pages, or whether they were lost from OLC’s leaky SCIF over the years. We have no way of judging the integrity of the document before us. What we have is a coherent document–the cover sheet, the letter that notes “enclosure” in the singular, and the Legal Principles bullet points. (There’s one weird spacing issue at the end of page 2 of the letter, with a sentence that breaks mid-line at the end of the page, which might reflect a change in the page size, but the rest of the spacing makes sense.) So the general coherence of the document and the singular use of “enclosure” would suggest that this really is an 8-page document and CIA just got it wrong (or maybe chose not to send something they originally intended to). We could ascribe it to sloppy lawyering at a sloppy agency.

There are just two things that make me wonder whether there wasn’t originally something more. First, in addition to noting “Enclosure”–singular–at the end of his letter, Scott Muller said this within it:

(Enclosed with this letter is a copy of the summary points along with a covering memorandum.)

Yet, best as I understand it, we’ve only got the bullet points themselves on this document, no covering memorandum. While it would be odd to include a memo introducing the bullet points after the bullet points themselves (remember, we’ve got consecutive pages per the fax timestamp), we do know there was a Memorandum for the Record written about this document on June 16, 2003, the same day this document was sent to, and rejected by, Patrick Philbin (I mentioned it in my discussion of CIA Other 25, but there’s a longer discussion of it in the OPR Report). Is it possible that Muller sent that to Goldsmith, to bolster his case that OLC really had had involvement in the Legal Principles document, but it has since disappeared? If he did send this memo or any “covering memorandum” with the bullet points, though, it is no longer included in the document.

The other possible thing that might have been included in this document would pertain to the third issue Muller raises in his letter. Muller asks for reaffirmation of the Bybee Memos, then discusses the Legal Principles bullet points, then asks for authorization of three new torture techniques. The second two techniques, water PFT (flicking) and water dousing, appear almost unredacted. They also include long discussions within the body of the letter, a full paragraph dedicated to the description of each of those techniques. But the first new torture technique mentioned includes no such discussion–it is introduced in the same paragraph that introduces the two others with no follow up discussion. In the two to three lines of discussion dedicated to this technique, there is ample room to introduce some different enclosure describing the technique in more detail.

Now, this is particularly notable because the unredacted techniques included in this letter–water flicking, water dousing, and (in a previous paragraph), the abdominal slap–are the techniques Steven Bradbury would be under great pressure to approve for the first time in May 2005, approval which we know was meant to be retroactive to use that likely dates back to this period. The presence of a fourth technique here suggests they were at least contemplating using that technique with whatever detainee they’d be doing the retroactive approval for in 2005. Though we of course know that CIA has a habit of asking for legal cover after the fact, so perhaps this technique was already used? If there was a fourth technique used or even contemplated, I can see why CIA wouldn’t want too many details of that floating around.

The point is, though, we don’t know. We know we’ve got a coherent document, so it is quite possible that the pagination discrepancy is an error that goes back to when the document was sent. Or, it’s possible there was a secondary Legal Principles memo or something related to the new torture techniques Muller was trying to approve. Either of these issues–the Legal Principles bullet points and the new techniques that would not be approved more than a year–were issues of great sensitivity. So you could envision why one of the parties wouldn’t want some of this documentation to remain available in its entirety and/or to be reviewed by OPR.

But we would have no way of knowing if this happened and DOJ would have almost no way of knowing, because documents have a way of going missing from OLC’s SCIF.

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.

40 replies
  1. Citizen92 says:

    That document seems to have the same half life as the forged Niger yellowcake letter. Just keeps turning up everywhere!

  2. emptywheel says:

    One other thing I should have said: OLC interviewed Yoo just twice for their investigation: June 7 and July 11, 2005. They didn’t ask him about the Legal Principles either time. I’m guessing that’s because they didn’t know it existed yet. Which is sort of not surprising, since Yoo says (dubiously) he wasn’t involved. To ask for it, they would have had to ask in the context of the Yoo Memo (the DOD one), from which the Legal Principles document got a number of items.

    But that all says this was one of the documents that SOMEONE didn’t want OPR to study (or include in its own consideration of Yoo’s ethical problems). Which is, again, another reason why parts of it might go missing.

  3. klynn says:

    I must say EW, some of this is bringing back Sandy Berger memories. Yeah, docs do have a way of disappearing from a SCIF and NARA staff are willing participants sometimes, like in the case of Berger, we have Nancy Kegan Smith who:

    …directs the Archives’ presidential documents staff and let Berger view the documents in her office in violation of secrecy rules. Smith said “she would never know what if any original documents were missing,” Brachfeld reported in an internal memo.

    OT sort of:

    I had no idea Wolfowitz and Hadley were Cornell college friends of Berger’s (Quill and Dagger memebers). This just made me go hmmmmm?

    • behindthefall says:

      Heh. Wouldn’t it be a riot if a secret “best & brightest” society kind of parceled out “cover affiliations” to its members? “Here: you go be a Republican. You there, Sandy, you be a Democrat. Now, whichever party is in power, we’ll always be in power. You see, our game will never have to stop.”

      See? Paranoia can be amusing.

      • DWBartoo says:

        Ahem, btf …

        Rumor has it that Rule Number 1 says:

        You were not supposed to tell anyone.

        They are not going to let you in the club, now.

        But, considering their B&B bebehavior … by B and for B … Yoo would BB happy … but you wouldn’t BB …

        But, if ya need a pair of noia, that big safe of Cheney’s is the place to start.

      • klynn says:

        I meant to OT on that thought. I understand it is OLC. It was the concept of a leaky SCIF that brought the OT Sandy Berger thoughts to mind.

        • fatster says:

          klynn, I did something similar just a few articles back (meant to type “Washington” as leaking like a sieve losing documents, but with my mind on all the hoopla over Berger’s incident (which I linked to also), I typed “National Archives” instead). If I were near I’d offer you a beer and we could share a chuckle or two.

  4. WilliamOckham says:

    I have a [new] theory about these documents. Take a look at OLC 17, pdf pg. 2. Muller says that the not-fax has 3 pages, including the cover sheet. That could mean he only sent over the first version included in OLC 17 (pdf pgs. 3 & 4) and Yoo/Koester created the second version (pdf pgs. 5 & 6). The two versions are in completely different fonts. Let’s call the font of the first version CIA Typewriter and the font in the second version DoJ WP. Version 1 and Version 2 are substantially different.

    Next in the timeline are the withheld versions (I’ll call them 2a, 2b, and 2c). Then we get Version 3 (OLC 19) which was sent to Philbin and is in CIA Typewriter. This one is pretty close to V2, but with some significant changes. OLC 22 (sent by Muller to Goldsmith on Mar. 2, 2004) is the same text as OLC 19. That makes Version 3 the final version.

    [Note to other complusives, I can’t check right now, so which version is in the IG report?].

    If you compare the text in V2 with that in V3, you can get a sense of the back and forth that’s hidden from us by the withheld versions. Gee, this is weirdly like New Testament textual criticism…

    • emptywheel says:

      Thanks for formulating that CIA typewriter v. DOJ WP theory–I was thinking about that this morning, that the fancy type is what Yoo or Koester did to it.

      I’m 90% sure (having done the New Testament of the Legal Principles already) that the March 2 version is what is in the IG Report, which would make sense since that’s why Goldsmith learned of this.

    • bobschacht says:

      Gee, this is weirdly like New Testament textual criticism…

      Thanks for your theory, WO. And biblical methods of redaction criticism may indeed be appropriate. I include Old Testament methods as well– wouldn’t it be cool to identify specific editors of these documents, on the basis of word usage? Like the J,D,E & P “documentary hypothesis”?

      Bob in AZ

      • WilliamOckham says:

        I used NT because we have multiple texts to compare, although in truth we are comparing actual revisions of originals rather than transcription errors. The OT methods are appropriate to.

        In fact, let’s play this game out a little. I’m using the theory that V1 is the CIA “ask”, what they want to get the OLC to sign off on. V2 is the Yoo/Koester counter-offer. V3 is the result of some additional haggling and represents the CIA final proposal. I’d really like to know who did the haggling on behalf of the DoJ.

        V1 to V2 or Yoo/Koester Vaguing (Vauging is like Voguing but more dangerous)

        Y/K clean up and expand the first paragraph to three paragraphs but only make one substantive change. They add a totally made-up “exigent circumstances” exception to the CID restrictions of CAT.

        The next big change is in V1’s “We’re at war and that’s our Get Out of Jail Free card” paragraph. Y/K get rid of that and replace it with their favored “CIA prisons are outside of all criminal laws” rationale.

        They expand on the CIA’s rationale for why the War Crimes Act doesn’t apply, but there’s no substantive change.

        Then, they replace the CIA’s version of “not criminal laws apply” with the specific intent exception for 2340 (the anti-torture statute).

        Finally, the lop off the list of specific techniques.

        Next up in our exciting series of tortuous textual analysis: What did the CIA put back in?

  5. Mary says:

    EW – you are absolutely right to be all over this. It is a big big element, for the lawyers involved as well as the CIA claims they were acting legally.

    Mukasey, Rotunda, Margolis et al defend the torture lawyers by attempting to say that the torture lawyers were only issuing “technical” memos to other lawyers – to highly sophisticated legal users who would be factoring in all the highly sophisticated legal discussions; they weren’t issuing “comfort” or “reliance” opinions for any kinds of acts or actionsand they weren’t giving directions or recommendations.

    Well- even as bad as it is, that argument doesn’t fly with the bullet points doc, does it? It’s not addressed to Ashcroft or Haynes of Gonzales or Rizzo. It doesn’t say “hey, let’s discuss sleep deprivation and nudity and hypothermia etc.” it lists them as approved techniques and with no caveats that each is only approved free standing. It doesn’t describe, as Bybee 1 does, that juries can still send everyone to jail anyway. It doesn’t fit into even the squirrelly squirrel holes that Mukasey and Rotunda et al try to carve out for the torture lawyers.

    The best they can do on it is shift the responsiblity to Koester and say, “oh golly, isn’t she a cute lil critter, heckfire, she didn’ know she was gettin all them guys and girls and kiddies stripped and tortured, such a thought never crossed her lil head – she didn’ know that words had meanings and suchlike” You bet Yoo doesn’t want any piece of that document.

    So not only does the legal principles doc not fit into the technical discussions to another lawyer defense, it pretty much puts the torture lawyers (whose own memos say that a jury probably wouldn’t buy that what was going on wasn’t torture or that the people involved in it didn’t know they were participating in torture) in the loop for giving the directive to act.

    To being direct conspirators.

    Oh yeah, that doc is well worth dealing with the weeds.

    Or it would be, if we had a rule of law.

    I’m kinda guessing that the Mukasey/Rotunds “no one was entitled to rely on the OLC memos, esp not anyone other than the lawyers they were issued to” argument is not one that accompanied the IG referrals on criminal review.

    Remember the meme of “Golden Shield” and how fast it came out, even before the memos? There never was one – that’s what the memos themselves reveal (as per all our old discussions on reliance memos and the delimiters between what happened vs. the memos) and not only that, the position of the torture lawyers like Bybee (via his counsel) and Yoo (via Rotunda) and their supervisors (like Mukasey) is that they didn’t give anyone a shield. And that’s the official DOJ position now as well.

    Of course, that does still leave all the oral, and perhaps written sign offs, from Ashcroft to all those non-lawyer NSC participants. Of course, most of them had lawyers like Addington and Bellinger to rely on – the one guy who had combat experience, though, and who had a real lawyer (I may not ever want to be pen pals with Taft and don’t agree with some of his conclusions, but he stood on terra firma with ever argument he made) – they got cut out of the loop.

    Not that there was any intent to cover up – nah.

  6. Mary says:

    BTW – out the door so I can’t go into this much, but this is also why there was all the uproar with what Ashcroft did or didn’t say or do with respect to the doc.

  7. TarheelDem says:

    You say that the Legal Principles document is 5 pages of content. And you say that OLC 22 has 5 missing pages.

    Here is yet another hypothesis. There were two copies of the 5 pages in the 13-page document. It is possible that one of the copies had been marked up for edits of whatever kind and routed by hand before it was faxed. When it was faxed, because it already had a classification page, it was faxed without a cover sheet and with the second copy of the Legal Principles removed. This hypothesis raised the question of what was different about the two copies that caused them to be filed together, and why was it thought necessary to remove the second copy before faxing.

  8. JohnLopresti says:

    A quick reading of 19 shows routing slip redacted both sender at CIA and first recipient (?at OLC), leaving unredacted to Philbin OLC.

  9. DWBartoo says:

    “… if we had a rule of law.”

    Mary is correct.

    If we had a rule of law, then …

    As we do not have a rule of law, then WHAT do we have, precisely or in general?

    What term, if such term exists, describes our current “situation”?

    The rule of law is a pretty big thing. One would imagine that it is supposed to cover a lot of “stuff”, possibly even everything that could be considered as related, in any way, to the law?

    Now, we are not “lawless”, at least in the sense of having no “laws”, but either there are now fewer laws, that is, laws which not longer are considered to “apply” … or those laws, now, only apply to some people and not to other, special, people?

    So that throws equality, before, or behind, or around the law into the hopper of “not any more”?

    One is also confused as to “who” will “make” laws from now on, and “who” decides which laws get enforced and upon whom … which will complicate some “things” but complication, by itself, is probably not something that the legal profession is overmuch worried about, as opportunity lies in confusion … um … complication (confused “politics” with “law”, for a moment there, one’s bad)?

    One is also confused by the means by which some people determine themselves, and thereby “somehow” are “believed”, by the Courts and by Congress,to not be subject to “laws”, which to one’s untutored eyes, apply to everyone, except after 9-11 which “changed everything” …. clearly, either 9-11 changed “everything” or it did not … but, apparently, it did?

    So “what” have we got now?

    The rule of exception? perception? deception?

    The rule of conspiracy?

    Or simply the rule of capricious tyranny?


    Are there any other questions? … How? Why? When? Where? Who?

    To what end?

    One imagines that really all our NOT rule of law provides is … questions?


  10. Leen says:

    Over at Rachel’s
    “Following Liz Cheney’s terror logic gets Maddow arrested”

    Over at Hardball Matthews rips up Rove’s new and un improved efforts to re-spin. he continues to rip up Cheney.
    “Matthews U.S. went to war for unknown reasons”

    • bobschacht says:

      Over at Rachel’s
      “Following Liz Cheney’s terror logic gets Maddow arrested”

      I saw that segment on Rachel’s show last night. It was a cute effort to follow Liz Cheney’s “logic” to its irrational conclusion, with Kent Jones dressed up as a cop coming with handcuffs to “arrest” Rachel and haul her off at the end of the show.

      I wonder what % of Rachel’s audience understood the parody?

      Bob in AZ

  11. NorskeFlamethrower says:

    Citizen emptywheel:

    When is somebody goin’ ta jail for murderiing our concept of justice and rule of law in a democracy…our entire legal system is like the corpse of Lenin except it’s not open for public viewin’.

  12. Cujo359 says:

    I don’t see this discussed anywhere, although it seems obvious that it must have been – who was signed for those documents that “disappeared”? In any system I’ve been involved with, it’s standard procedure that if a classified document is going to leave the room, then someone signs for it as the responsible party. Who is that someone for these documents?

    I won’t be surprised if the answer is “no one”, but that in itself is the sort of negligence that can get someone tossed in jail.

    • Mary says:

      I think they just let the CIA attorneys come into the OLC/DOJ SCIF and rifle through things on their own a few times – no one signed out docs. And then later, some docs were missing …

      I may have it wrong, but that was how I understood it.

      • emptywheel says:

        They actually let the CIA take the docs back to Langley for 1-2 months in 2007. Just as Mitchell and Jessen were testifying before SASC.

        • Cujo359 says:

          Under normal circumstances, this would be considered a serious problem. A periodic audit should eventually have discovered the documents were missing, and the person who was responsible for managing the SCIF’s classified materials would be in a lot of trouble. If they were properly transferred, then a similar person at CIA would be in trouble. If that didn’t happen, I think you can assume that someone higher up fixed things so that wouldn’t happen.

          I found a GSA document that seems to suggest that DoJ is somewhat lax in its classified material training and in assigning personnel to the task. It was published in 2006.

          • emptywheel says:


            I have inquired about more details from DOJ, and they say all teh details they’ve got are in the Barron Declaration. Not sure I believe that. You don’t just give all your torture documents to a guy in a blue uniform that says, “CIA, Pick UP.” But for now that’s all they’ll say.

          • bobschacht says:

            I found a GSA document that seems to suggest that DoJ is somewhat lax in its classified material training and in assigning personnel to the task. It was published in 2006.

            Isn’t this something that Congress should hold hearings on? Maybe write some new legislation– with enforcement teeth?

            Bob in AZ

  13. tjbs says:

    There is no is no F**king legal torture and yoo is a F**king war criminal.

    This country was overthrown in 2000 by 5 Supreme traitors, sorry.

  14. R.H. Green says:

    I want to throw into the mix of what is being considered here an idea that has occurred to me. I have little data to back me up because I am unable to access the relevant PDF docs from the provided links. This notion began the other day when EW seemed (to me) to be going too far (for the facts presented) in supposing that Zubadah (sp?) had undergone mock-burial. What he said was he was confined in the small box and shown the large (coffin-like) box in conjunction to the small one. I gather that there was some discussion about burial, but that Soufan objected and threatened to make arrests.

    What I’m thinking is that there was some Pavlovian Conditioning going on, in that sets of stimuli and responses were paired with other stimuli to create an emotional effect. What Mitchell was attempting to do was create a detainee who was so emotionally drained as to have given up any reserve resistance to interrogation that character or training may have instilled. He based his reasoning on Seligman’s (1970?) experiment in which dogs were subjected to uncontrollable electric shock, and who subsequently began to behave in ways that mimicked depressed humans. The problem for him then became one of how to induce such helplessness, and how to maintain it during interrogation. This last point is where my thinking is focused.

    Pavlov discovered that physiological reflexes (and that includes emotional behavior) are controlled by environmental events, unconditional stimuli, and can be elicited by other events which have been repeatedly paired with these unconditional stimuli. Thus the sight of the two boxes together have predictable effects when one of the boxes has been experienced in some distressing way. The second (coffin-like) box takes on some of the unpleasant character of the first. When the second box has terrifying characteristics of its own, the combination would be horrific. These effects could be elicited on demand merely by showing that box, without ever being put into it, let alone actually buried in it. AZ’s description of his treatment indicates to me that these boxes were shown to him in a consistent manner (as I remember what I’ve been reading).

    A similar notion emerges in the description from today’s post regarding “water flicking” and “water dousing”. I suspect that these were not intended to be two seperate and independent techniques. It is not obvious to me how flicking water on someone, even in their face, becomes such an inhumane treatment that it requires approval from the highest legal authority of the government. Indeed dousing someone with water, in itself seems innocuous; on a hot day it could be pleasant. Yet it depends on context. If that person were subjected to cold air, naked and shackled, it takes on a different connotation. Now add to this scenario that prior to being so doused, someone leans over a merely flicks a few drops of water. This event, by the conditioning procedure described above, would cause the flicking to elicit the emotional responses that come from the dousing procedure.

    The fruit of this, is that an interrogator with no knowledge whatsoever of this conditioning history would find that a resistant detainee could easily be reduced to putty by simply flicking a bit of water on him.
    Now how to write rules that allow all this to be done in the name of American citizens without it leading to War Crimes prosecution, to hide it all in plain sight, is what all that legal talent had to arrange, thus the back and forth. The clever part was to list a series of permissible techniques in one memo, and allow their combination in another. Of course this had to be done in such a way as to conceal that this is all intentional, and with the full cooperation of that legal talent (and you know where that leads).

    I know this reads like a bad nightmare, and I’m sorry for that

    • emptywheel says:

      I think you’re reversing the weight of the boxes.

      There is significant reason to believe the small box was the one called, explicitly, a coffin, not least that’s the words Zubadaydah reportedly used for it. Plus, the large box is large enough for a urine bucket. Plus, we know they used the small box as you say–as an associative cue. They removed the large one, but kept the small one around to–as Zubaydah explained it–remind him what they were capable of.

      • R.H. Green says:

        Perhaps you’re right; I still haven’t been able to get to the docs (I’ll try again tomorrow), and my memory for details (such as the large box containing a bucket) has not been good. Prudence says to say no more.

  15. odum says:

    Too many acronyms… seriously, I pay attention to this stuff, but I focus mainly by necessity on issues in my state – which means sometimes I have to hit myself in the head for a sec to get my brain caught up to any given issue since I stop by frequently, but not regularly.

    But I’m a reasonably smart guy, and I was all “Waitamit… what’s OLC again?” I didn’t want to read the post until the background story was firmly returned to the front of my head – and I needed that acronym translated – so I skimmed and didn’t see it IDed. Clicked on the link to the previous piece on the issue – same story. So then I started reading it and “Office of Legal Council” immediately registered in my li’l cortex when I got a few sentences in.

    Now imagine casual ally readers who may have peripherally gotten the gist and are interested in the issue and the site coming across that. They’ll go blank and leave, and that’d be a shame. I suggest you always identify in full the title at first mention and then go to acronym – even if you feel that its become second nature to you.

    I just think a goal for all we bloggers should be to keep this as demystified as possible without become overly repetitive or dumbing it down, lest it all be too much like coming into the middle of a 24 season for potential new audience members. And I certainly do the same thing when throwing around department names back in my li’l state focused blog in Vermont.

    Anyway. My $.02.

    • cinnamonape says:

      I have to agree. It helps to have the first time an Acronym is used to be identified by the full title e.g. Office of Legal Counsel (OLC)…with the exception of the CIA and perhaps the Department of Justice (DOJ). OLJC, CAT, SCIF, NORA, IG…I’m lost.

      All I understand is that documents were lost that are critical evidence. And it seems that there should be multiple copies of these documents available. After all when you fax something you are actually making a copy of it. The original remains in the hands of the transmitting party. And I have to wonder why there is specific reference to the hand-carrying of documents (which would, of course, preclude a copy being made, and retained).

      It’s much more incredible to argue that two copies disappeared inadvertently than one. Particularly when those documents are in the hands of another party.

  16. R.H. Green says:

    Looking back at the topic post, I noticed that the discussion of the water techniques were unredacted; I’m going to a friend’s house to see if I can access from there. I take it that the discussion is in OLC 22; right?

  17. MadDog says:

    EW, regarding OLC 22 and this quote from it:

    (Enclosed with this letter is a copy of the summary points along with a covering memorandum.)

    When I was just now reading OLC 22 and came upon that sentence, it seem to infer (to me) that the covering memorandum was something that the OLC (Yoo? Koester?) provided to the CIA.

    The reason I infer that comes from the context of the entire paragraph and particularly, the preceeding sentence:

    …The classified memorandum entitled “Legal Principles Applicable to CIA Detention and Interrogation of Capture Al-Qa’ida Personnel” (hereafter “summary points”), which was prepared with OLC’s assistance and received the concurrence of your office in June 2003. (Enclosed this letter is a copy of the summary points along with a covering memorandum.)…

    (My Bold)

    What this seems to say to me, and I’m just going by what I sense Muller was saying, is that “see, we’ve got a covering memorandum from the OLC (again, signed by Yoo? Koester?) that this is officially approved stuff”.

    • emptywheel says:

      I don’t buy that, at least not in that specific form.

      In June 2003, Philbin pretty strongly rejected the LPs as OLC.

      That’s why I thought it might be that memoradum of understanding (though we knwo OPR has seen that), because that’s the thing that claims this is OLC.

      But i grant that it may well be some kind of “proof” that this was an OLC doc. Not long after this, btw, Goldsmith got on the horn with Yoo and asked him WTF he had done (and WTF he had said to DOD before they wrote the Gitmo memo).

      • MadDog says:

        At least you’re leaving the door open. *g*

        Seriously, that covering memorandum may be something so bland and innocuous that Muller & Co. can only hint that it provides OLC “approval” for the LP document.

        Something short and insubstantial like “Scott, for your files. Jennifer”.

        As for it being the MOU, that fits less well to my reading of the paragraph, but perhaps that’s just me.

  18. MadDog says:

    Regarding your point on OLC 22:

    …So the general coherence of the document and the singular use of “enclosure” would suggest that this really is an 8-page document and CIA just got it wrong…

    I tend to agree here. It would seem to me that someone at the CIA mis-transcribed an 8 into a 13. That could easily have happened if the author (Muller?) writes his 8 in longhand using a “/” and a “S”.

    The combo of a “/” somewhat overlaying a “S” meant to be an “8” can easily be mistaken for a “13”.

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