The Request for Reaffirmation of Torture

This is going to be another weedy post…

I wanted to put two totally bureaucratic pages (PDF 23-24) from the recent FOIA dump into the context of the other known documents in the chronology. The first page is an “Executive Correspondence Routing Sheet,” sent from CIA General Counsel Scott Muller around top CIA management for approval. It reads:

This memo follows General Counsel discussion with the DCI and agreement on the need to seek reaffirmation from the NSC.

And the memo in question (the following page) appears to be a very short memo with the subject, “Review of CIA Interrogation Program,” from John Rizzo circulated to the lawyers involved with the torture program and the top CIA executives on the Executive Correspondence Routing Sheet. The Rizzo memo is dated May 24, 2004; the last signature–that of George Tenet–is dated June 4, 2004.

The routing sheet is interesting not just because Tenet signed it the day after he resigned.

It also shows a glimpse of the bridge by which CIA responded to the CIA IG Report but also (probably) Jack Goldsmith’s unwillingness to reaffirm opinions that OLC had never made by asking the White House for some kind of written re-endorsement of the torture program.

As I’ve shown here and here, when the CIA Inspector General began its review of the torture program in response to the Salt Pit death and abuses of al-Nashiri, CIA and Jennifer Koester and John Yoo (though he denies involvement) worked back channel to develop a set of “Legal Principles” (elsewhere called “Bullet Points”) that would expand the legal authorization DOJ had given CIA’s torture program in such a way as to legally excuse the crimes the IG was inspecting. Significantly, the Legal Principles document expanded the already farcical analysis of Article 16 of the Convention Against Torture that Yoo had done in the Bybee One memo.

CIA twice tried to present these Legal Principles to OLC as a fait accompli, first in June 2003, when Patrick Philbin took over many of John Yoo’s duties, and then again in March 2004, in conjunction with the finalization of the IG Report and at a time when Goldsmith headed the OLC. Both Philbin and Goldsmith refused to accept the Legal Principles as OLC sanctioned documents.

Now, significantly, the March 2, 2004 set of Legal Principles was itself a request for “reaffirmation” of the torture program’s legality. Scott Muller emphasized CIA needed that reauthorization, among other reasons, because they had incorporated new torture techniques based on the OLC “guidance.”

For example, using the applicable law and relying on OLC’s guidance, we concluded that the abdominal slap previously discussed with OLC (and mentioned in the June 2003 summary points) is a permissible interrogation technique.

Of note, Goldsmith appears to have taken special note of the description of water PFT, which (Muller’s note said explicitly) was “intended to … humiliate” detainees. Given that the IG Report concluded that the torture program probably violated Article 16, this language seemed to flout the prohibitions against cruel, inhuman, and degrading treatment.

Between March 2 and May 24 (when Rizzo wrote his memo), Goldsmith did not reauthorize the Legal Principles. Nevertheless, CIA incorporated the Legal Principles into the final draft of the IG Report. Goldsmith got a copy of that document some time before May 25 and presumably spoke to Muller about the inclusion of the Legal Principles in it, because on that day, he wrote CIA’s IG noting that he had received it and asking for time to review the depiction of OLC’s legal advice in the IG Report before it got sent to Congress.

In other words, Goldsmith’s continued objection to the inclusion of the Legal Principles in the IG Report is probably what prompted John Rizzo to send out a memo referencing the IG Report (which the CIA called the “Review of the CIA Interrogation Program,” the subject of his memo) that appears to have recommended asking NSC for reaffirmation of the torture program.

So faced with Goldsmith’s refusal to reaffirm something OLC had never affirmed in the first place, CIA decided to go to the White House and get them to approve of the program in writing. It took 11 days to between the time Rizzo apparently made this recommendation and all the CIA bigwigs signed off on the idea.

The day before he signed this memo, George Tenet resigned.

Then, on day he signed the memo, Tenet wrote Condi requesting the reaffirmation in question. Even in the few unredacted passages in Tenet’s letter, he made at least two false claims: that DOJ approved the program in September 2002, and that leaders of the intelligence committees were briefed on “the existence and nature of the Program” … “from the beginning.”  (Though perhaps we can forgive Tenet’s false claim, since apparently CIA had no fucking clue what it had told Congress at that point.)

It took Condi a week to get back to Tenet, in turn, a week during which the memos leaked to the press. She basically punted the reaffirmation request right back to DOJ.

I have reviewed your memorandum to me of June 4, 2004. As we have already discussed, the next logical step is for the Attorney General to complete the relevant legal analysis now in preparation. Once this work is completed and you have returned from your current travel, we can convene a Principals Committee meeting on this subject. In the interim, I will contact Attorney General Ashcroft to underscore the priority we attach to completing expeditiously the Department of Justice’s legal analysis. I also encourage you to carry through on your expressed intention of talking with the Attorney General directly on this subject before any Principals Committee meeting.

Of course, while Condi was dawdling over a document promising to deal with this “priority … expeditiously,” Goldsmith and CIA were still sending documents back and forth. On May 27 (that is, before Tenet first wrote Condi), Goldsmith raised concerns about the conclusions of the IG Report and advised Muller to terminate use of the waterboard and make sure all torture techniques adhered to the descriptions in the Bybee Two memo. On June 10 (the day before Condi wrote back to Tenet) Goldsmith wrote Muller again, repeating and strengthening his refusal to treat the Legal Principles as OLC opinion and also telling Muller that if he wanted an opinion he’d have to put the request in writing; the fact that Goldsmith kept the fax confirmation sheet suggests he wanted proof it had been received at CIA.

Then, after Condi sent the letter punting the issue back to DOJ, things got worse. On June 18, just days after he announced his own resignation, Goldsmith wrote fellow lame duck Tenet, requesting that CIA make two changes to the IG Report, both with regards to what DOJ considered mischaracterizations of DOJ approval of the torture program (see this post for details). On June 22, Comey and Goldsmith and Philbin withdrew the Bybee Memo.

And it’s in that context that on July 2 the Principals meet. Without Goldsmith present. Rather than deal with the program generally, this meeting purportedly related to just one detainee. And, after the two biggest torture skeptics (Jim Comey and John Bellinger) left the meeting, they got a fax, telling what was going to be approved.

(At about this time, what appear to be discussions of whether detainees can be taken from Iraq heat up.)

It appears, finally, that White House wrote a letter “reaffirming” the program on July 21 (see document 63 at PDF 81), after Tenet, Goldsmith and possibly Scott Muller were gone. And the following day, Ashcroft wrote John McLaughlin a half page letter stating the same thing Goldsmith had said on May 27 and July 7, that CIA could use every technique described in the Bybee Two memo except waterboarding, subject to the restrictions in that memo. Ashcroft’s letter contained one very important point of emphasis, particularly given the Administration’s apparent promise to Congress to get an OLC opinion assessing whether the torture program violated the Convention Against Torture. Ashcroft explicitly said the torture program didn’t violate Article 16.

And that’s how it happened that, after CIA’s own IG concluded that the torture program violated CAT, it was reaffirmed without analysis of whether it violated CAT or not.

53 replies
  1. klynn says:

    And that’s how it happened that, after CIA’s own IG concluded that the torture program violated CAT, it was reaffirmed without analysis of whether it violated CAT or not.

    Finally, the big reveal. Thank you for an amazing post.

    • earlofhuntingdon says:

      In DC? Nope, because if you’re not running away from something you did, you’re running away from something your predecessor did or your new teenage boss doesn’t like.

  2. Mary says:

    “water PFT”


    Here’s a link to the legal principles sent to Philbin
    if anyone wants to pull it up while the read the post.

    I think one thing that is interesting is the way they handle the good faith refernce in the bullet points. It basically says something very different than what the Yoo and Bybee memos (after the Chertoff shoot down) say about good faith. Those memos (and all the defenders of Yoo and Bybee now) say that while you have to have an intent to torture as an element of the crime of torture. They then say that while you could argue you had a good faith subjective belief that you weren’t torturing to try to get around that element of the crime, ultimately a jury would be the deciding factor as to whether or not you intended to torture and if the jurty thinks that it looks like torture to them, they’re not going to buy that it didn’t look like torture to you. IOW, even the horrible Bybee and Yoo memos pretty much tell the recipients (who are other lawyers, not the field torturers) that if the jury doesn’t don’t buy that you (the torturer) were a naive little thing who just didn’t know better, you’ll fry.

    As a matter of fact – they hoist themselves on that one. Bc if a jury doesn’t believe that you didn’t know better than to say something like waterboarding wasn’t torture, they won’t buy your “I didn’t conspire to solicit torture” argument either. But that’s all water under the Obamaboard.

    • klynn says:

      Nicely stated.

      Just having a “good faith” reference in the bullet points ticks me off from the context of history.

  3. Citizen92 says:

    I see the Markey (et al) letter around page 8 has 202-226-0002 as the phone # on the fax header.

    That number appears to be associated with the House Judiciary Committee’s minority counsel. Who in 2007 would probably have been this fellow, Joseph Gibson:

    Probably just a “meh”… but it would appear as though the Minority’s office thought it important to fax a copy of that Markey letter to someone at the CIA?

  4. MadDog says:

    OT – Related to an EW post yesterday, Steve Aftergood over at Secrecy News got his hands on the Orszag memo (8 page PDF).

    It included this part which I hadn’t heard about on page 5:

    VIDEOTAPING OF INTERROGATIONS (Section 416 of the House bill): Although pursuant to EO 13491, the CIA does not operate any long term detention facilities; it is still authorized to detain people on a short term transitory basis. Section 416 requires the establishment of guidelines to ensure that interrogations of detainees and prisoners in Central Intelligence Agency (CIA) custody are recorded on video. We continue to believe that this provision would be problematic for interrogations of captured terrorists who provide information to U.S. intelligence personnel in the field. Conditions as they exist in real-time may not allow for the installation and assembly of video equipment, particularly if hostile forces are active at or near the site of the interrogation. Some interrogations will occur in circumstances in which foreign intelligence services control the environment, and they may refuse to permit recording. Further, interrogations may take place under austere conditions under which recording is not feasible. Under either of these scenarios, the CIA would be unable to interrogate the individual. In addition, requiring the Director of the CIA (D/CIA) to issue unclassified guidelines for video recording of interrogations might provide terrorist organizations information useful for training their personnel to resist interrogations.

    This provision has the potential to damage significantly our counterterrorism capabilities and, therefore, our ability to keep the American people safe. It potentially precludes CIA’s ability to gain actionable intelligence in a timely manner from a custodial detainee in the event videotaping of the debriefing/interrogation is not feasible or practical. This could result in the loss of important intelligence that could help disrupt planned terrorist operations and save lives…

    • Mary says:

      Gee – I wonder why foreign intel services wouldn’t want us recording the interrogation? I mean, it’s not like we’d be involved if someone were being torture or something.

  5. earlofhuntingdon says:

    So who wrote the final letter in which Ashcroft blankly declared the “program” didn’t violate CAT? Margolis? Addington? Gonzo?

  6. orionATL says:

    there it is again:

    ew writes-

    …”so faced woth goldsmith’s refusal…cia decided to go to the white house and get them to spprove of the program in writing…”

    the cia was not an agency reluctantly draw into torture,

    the cia was a wily agency perfectly willi g to torture IF they cpuld be guaranteed not to be hrld accountablr for the torturing they did.

    it was not the white house that drove torture authorization within doj,

    the cia DROVE it.

    “you give us the o.k., we’ll cut off

    ears, and noses

    penises, and toeses.

    we’ll waterboard, keelhaul, draw-and-quarter,

    we’ll bury’em in coffins,

    we put them on a stick (“the assyrians came down like a wolf on the fold…”).

    all you got to do is give us the protection of law.

    the cia, by my interpretation, bears the greatest responsibility for the torture done outside dod.

    this is our american central “intelligence” agency, always eager to engage in any reprehensible or illegal conduct,

    so long as they will never be held accountable for having done so.

    torture may well have been the very foolish dick cheney’s idea (or not),

    but the picture i see emerging is of a cia bureaucracy, headed by the ever-obliging, unprincipled, george tenet,

    which bears central responsibility for pushing torture, globally illegal as the cia well knew, forward to its bitter fruit.

    • qweryous says:

      Joseph Gibson has just written a book: “Persuading Congress –
      A Practical Guide to Parlaying an Understanding of Congressional Folkways and Dynamics into Successful Advocacy on Capitol Hill-
      How to Spend Less and Get More from Congress: Candid Advice for Executives”

      A search at Google Books yields some info (from the author statement in his book).

      I can’t make the link work .
      Go to google books- enter ( “Joseph Gibson” ” Constantine Cannon” ) as search terms- page ix in his book is the author’s statement.

      There seem to be some minor discrepancies with the dates.

  7. sanpete says:

    Why do you keep saying Yoo denies involvement with the “bullet points”? We know he at least had input on them. All he denies that I’ve seen is that he did very much on them; he says OLC didn’t “generate” them and that Koester did almost all of the OLC work on them (which implies he did some too, since they were the only ones at OLC working directly on this stuff).

    How do the “bullet points” expand the legal authorization in regard to Article 16? They were supposed to be no more than summaries of previous advice, and not to be used directly to decide any legal question.

    I don’t know how you think Yoo’s analysis of Article 16 was farcical, but it appears to have been in keeping with US law as interpreted by the courts, thus the need for the McCain Amendment.

    You say the IG decided the interrogation *probably* violated Article 16, and then you say the IG concluded it did. Do you mean both?

    • emptywheel says:

      On June 9, 2004, Goldsmith talked to Yoo by telephone about the Bullet
      PointS.91 With respect to the Bullet Points, Yoo-told Goldsmith that”to the ~xtent
      they may have been used to apply the law to a set of facts, they did not constitute
      the official views of OLC. Yoo stated that ClG.LC did not generate the Bullet Points,
      and that, at most, OLC provided summaries of the legal views that .were already
      in other OLC opinions.” Yoo reportedly added that “almost all of the OLC work on
      the Bullet Points was done by anAttorne_hocould-never have
      signed off 6n such broad conclusions ;p~especially in such a
      cursory and conclusory fashion.”

      • bobschacht says:

        The bolded section of your quote seems to have some garbage in it. Is that in the original, or did something get lost in translation? Since you didn’t supply a link for the quote, I can’t check back myself.

        Regarding the issue of the bullet points list, it can’t be OLC without an original on OLC letterhead, and a signature at the end, can it? So it matters not whether Yoo or his assistant worked on it, or even wrote every single word of it, unless it can be sourced to a signed document on OLC letterhead? That was gonna be my answer to sanpete.

        Bob in AZ

    • Mary says:

      You haven’t paid much attention to this blog if you think EW forces out the unbelievers – we have disagreements all the time (of course, usually she’s more organized and can more directly prove up her points, but she doesn’t get into a pissy sulky corner over disagreements).


      How do the “bullet points” expand the legal authorization in regard to Article 16?

      The completely leave out all the caveats within the memos. So, as bad as the memos are (and I think it’s interesting that you use legal “authorization” to describe them, since everyone at DOJ argues that they are not, even the memos – not just the LPs – authorizations) the include long discussions of defining conditions that are completely left out of the LPs. So, for example, if you say that a person can be taken into custody if they have on them monies that were wrongfully obtained from another party and you reduce that down to a bullet point that says you can take a person into custody if they have on them monies – you flippingly “expande” authorizations. Go compare the memos with the lps and there are lots of caveats from the memos that are not included in the LPs. In addition, when you give legal memos, they are intended for the use of those to whom you address them only. On that front, given the sophisticated recipients of the memos and their backgrounds, the memos themselves were, in essence, bullet points and would have been much longer and more detailed still if they were being issued for use by anyone other than the named recipients – who were not field torturers.

      They were supposed to be no more than summaries of previous advice, and not to be used directly to decide any legal question.

      On what do you base that assertion? It’s difficult to imagine a situation where the sophisticated recipients of the already truncated memos – guys like Rizzo and Haynes and Ashcroft – would need a cheat sheet list to serve as “summaries” of “previous advice” but it is also very clear that these lps were not simply “further distilled” docs that were being used by Rizzo and Haynes and Ashcroft solely for their own purpose and not for the purpose of making any further dissemination of advice – it’s pretty clear these LPs were being issued, like the list of interrogation tactics Haynes puts together and signed off on for the military, to field torturers or their direct supervisors. That, in and of itself, is a HUGE and unwarranted expansion of the memos by the summaries. It changes the client, changes the target, changes the facts etc. and it’s incompetent and pretty much dishonest.

      I don’t know how you think Yoo’s analysis of Article 16 was farcical[you would if you’d followed the blog over time instead of showing up and pretending that you had more background with the blog], but it appears to have been in keeping with US law as interpreted by the courts, thus the need for the McCain Amendment.

      Acutally, no, it was not in keeping with US law as interpreted by the courts and this is the really big point that we’ve discussed here before but which you entirely miss – – the whole point behind the OLC memos and secret torture program was to remove any of the OLC reasoning from judicial review; to reduce down the legislative and judiciary branches into nothing by letting secret law by generated by the Executive, which then called itself – via OLC – the judge of the matter as well.

      Actually – the fact that things are very different from what the law allows is behind the failure by Yoo to cite and discuss relevant case law (including our own case law on waterboarding); failure to recite and include the actual facts rather than a fairy tale recitation of facts; the preface in at least one of the memos (Levin’s) to the fact that the only way the analysis in the memo could be relied upon is if no case ended up before a court; the need underlying the memos to try to offshore the torture in a place where courts would not claim jurisdiction; and the fact that even with all of that – McCain, under the cover of trying to provide for less abuse, actually granted AMNESTY for existing torturers (something you don’t need if you are following the existing law) and also took away habeas rights from torture victims so that they had no way to ever get their treatment in front of a court – all while allowing the Executive to engage in full and total cover up without consequence.

      And of course, we know that was all “in keeping with US law as interpreted by the courts” since, of course, the courts struck down his habeas end run, as well as the later MCA habeas end run.

      But yeah -the fact that they say outright in the memos that courts and juries aren’t likely to buy their arguments and that they want the torture offshored to try to keep courts from exercising jurisdiction and the fact that they hid their memos from courts and Congress and the fact that they’ve continued to hide the Aug 2002 memo explaining how many of the interrogation experiment victims at GITMO were absolutely innocent of being enemy combatants of any kind, and the fact that they’ve maneuvered over and over for amnesty and to destroy evidence and they’ve outright misrepresented facts over and over in their memos and then made knowingly incorrect statements to courts and assisted in the scapegoating of Abu Ghraib soldiers to deflect from an examination of their own roles – despite their duties to the tribunals as lawyers – – yeah, except for that and more, it’s just like they were acting in keeping with US law.


      • emptywheel says:

        There’s one more thing that went on here, too.

        Yoo and Koester evaded oversight on the Yoo memo, the DOD version. But we know that CIA was in the loop on it–Yoo basically gave Muller a review to make sure he was happy with it. I think that happened bc they used the Yoo memo, and not the Bybee one, for the LPs, which loosened intent.

        • Mary says:

          I think you’re right on that as well.

          This is the kind of thing a commenter like withoutapete relies upon, though. To toss out something that has so much against it that has already been discussed and detailed, but which is going to be laborious to take on again and almost limitless bc his statements are just SO wrong in SO many places – and then just hope no one has time to put on the scuba gear and make the dive.

    • bobschacht says:

      Thanks- this is an excellent piece on “minders.” The first thing it brought to my mind(!) was if Addington had acted as an OVP “minder”.

      The article also includes an excellent perusal of other types of acts of intimidation that deserve more attention. I’m thinking of all those so-called briefings of Congress by the CIA and others, for some of which Cheney himself might have acted as “minder.” And whether the attendance lists for some meetings might or might not have included everyone– I’m thinking about participants who never said anything during the meeting, but who might have performed a “minding” function. I’m wondering if such silent participants might have been included at all on attendance lists, especially those made up weeks or even months later “from memory,” as EW has recently underscored for us.

      Bob in AZ

  8. sanpete says:

    PJ, why are you so put out of joint by ideas that don’t match your world? Maybe you should hang out at Democratic Underground, where they enforce a rule against disagreeing with the dominant view. It’s a sweaty steam bath of leftist groupthink, free from all differing views. You might like it.

    It’s too bad this blog, which shows a great deal of hard work by Marcy, lacks almost completely any check from skeptical readers. A band of unquestioning disciples doesn’t serve her well.

    • PJEvans says:

      You clearly haven’t been here long enough to talk about the readers. It doesn’t do you any credit, and it makes you look even more like a f*cking troll than you already do.

  9. sanpete says:

    @ 24-25

    What you quote from Yoo doesn’t say what you seem to think it does. It’s exactly the quote that what I said is based on. It doesn’t say Yoo didn’t have any involvement; it implies he did, as I already pointed out.

    Can’t watch the youtubes, but if they say anything that contradicts what I said or supports what you said, please do point out what it is.

  10. sanpete says:

    Oops. Sorry, didn’t notice posts 24 and 25 are from different people. I should have noticed the difference in dialect.

  11. sanpete says:

    Bob, the quote is from page 116 of the final OPR report. The garbled part says “Attorney [redacted] who,” and is pretty clearly about Koester. I agree that the bullet points were fairly clearly not regarded as advice by OLC, Yoo or Koester, for the reasons you give and because of the descriptions of them by Yoo and Koester. CIA wanted them to be treated as official, as they had already used them to represent summaries OLC advice. Not that they said much OLC advice didn’t say. But by then Goldsmith was getting ready to withdraw the Yoo advice which they summarized.

  12. Jim White says:

    OT: The California Highway Patrol report on the runaway Prius in San Diego is very bad news for Toyota. That CHP officer seemed to know exactly what to look for and provided evidence that strongly supports the driver’s description of what happened. It looks to me like the clue for those trying to decipher a possible electronic failure mode is that control was restored when the brake and emergency brake were applied at the same time.

    • qweryous says:

      A number of questions arise in this instance, including does CHP typically release such reports, how long does it usually take for any such release…

      Did those that spoke so vigorously and loudly (I had the impression that I was to believe that there was NO evidence of anything) know the contents of this CHP report in advance of the statements they made?

      The credibility evaluation wrt this incident just changed.

      Will the media noise machine suddenly reverse itself?

      EDIT ADD “That CHP officer seemed to know exactly what to look for…”–

      Such as approach it as collect the facts, including analyzing what appeared to have happened in order to collect ALL the facts. Others seem to be operating in this manner: “since this can’t happen..this is what we will look for”.

  13. Citizen92 says:

    David Addington strikes me as the quintessential “minder.”

    His cover memo to the CIA (p 25) is bizarre-ly casual, using parenthetical asides as well as the phrase “good to go.” A bullying tactic which implies authority? A closer connection to the CIA? Disregard for protocol? Odd for an attorney.

    But even odder is that a man who believe that the Office he represents, OVP – which is neither in the Executive Branch nor Legislative, is given the task of authoring the Executive Branch’s rebuttal letter to an independent commission.

    • Rayne says:

      Key word there is “given” — I don’t think this was a task which was given to him, but one that was taken.

      See Gellman’s Angler; there wasn’t a lot of daylight between Cheney and Addington. Addington did what Cheney would have done as Cheney’s right hand. Ask yourself if Cheney would take or be given a job to do. That answer fits Addington.

      • Citizen92 says:

        Fair point.

        Either Angler or another related source pointed out that OVP somehow got itself to be blind cc’d on all group e-mails coming from the NSC. And the NSC didn’t know.

        If my memory serves correct, history shows us this is not unusual behaviour for Cheney’s OVP. I believe that the book 31 Days or possibly Angler informed us that Dick Cheney had a habit of rifling through people’s inboxes when he worked for Nixon/Ford. (Although I may be confusing Cheney with Al Haig… but one of them did it).

        So your point stands. Addington liklely wasn’t given control. He took it. He could do so because he had all the informationm and the gall to pretend he was in charge – against a counterpart staff who was lazy or ill-suited to the task (Gonzales) or unnecessarily deferential.

        • Rayne says:

          And I’d also point out that what we perceive as “lazy or ill-suited” wasn’t a bug but a feature.

          Think about Monica Goodling and Kyle Sampson and the methodology they employed to select career personnel for USDOJ. They looked for ideological conformity, not output or ability. The people Addington worked with would be those who would already be predisposed to see him as Cheney’s proxy and therefore a superior imbued with the power to issue orders.

  14. Jim White says:

    One more OT: Isn’t it interesting that both AP and CNN are headlining the $940 billion cost estimate from CBO on the new health care reform bill while burying the $130 billion deficit reduction in less prominent text?

  15. emptywheel says:

    COuple of things on Addington.

    First, remember that I suspected he had aspergers after watching his Libby testimony (though I should be clear I don’t treat that as a real diagnosis and I really don’t know WTF i’m talking about). So his casual protocol should not be surprising.

    Second, Addington and Cheney owned this torture program from the get go. And I suspect they owned the response to the 9/11 Commission–or at least had the ability to limit its application. So I don’t think it’s a matter of this request coming in and it getting assigned or taken by Addington. I think it was already in his in-box. It was already his program and his place to direct the response.

  16. qweryous says:

    Concerning posts and responses to certain posters and in order that posters are aware what they are investing their time in…

    Please keep in mind what happened at this thread recently:

    Your attention might focus on where this episode begins- this comment @ 33 LINK:

    Significant other comments to see in evaluating this include @34, @59, and @69

    Less than five minutes of your time invested in the above may allow informed allocation of your future time.

    The episode referred to in that previous thread seems to continue.

  17. sanpete says:

    “You haven’t paid much attention to this blog if you think EW forces out the unbelievers”

    Mary, I don’t think that and haven’t said that. It’s easy to see who I’m talking about. Your gratuitous name-calling qualifies as the kind of irrational nonsense that passes for discussion here.

    “They completely leave out all the caveats within the memos.”

    It’s bullet points. They plainly weren’t intended to be used as advice, or to include the many finer points. The caveats you mentioned in an earlier post don’t expand the “authorizations” in regard to Article 16, in any case. The good faith point is about the specific intent element of the torture statute, not Article 16.

    “it’s interesting that you use legal “authorization” to describe them”

    That’s Marcy’s word, not mine. (I just left the quote marks out.)

    “On what do you base that assertion [that they were supposed to be no more than summaries of previous advice, and not to be used directly to decide any legal question]?”

    On what the OPR report says about how they came about and were intended to be used. Yoo, in particular, says that in a quote Marcy gives in a comment above. As Bob pointed out above, the bullet points were unsigned and not on OLC stationery.

    If others outside OLC abused the bullet points, that’s their problem, not OLC’s. But issuing them to interrogators as summaries wouldn’t necessarily be abuse, as long as the interrogators were given fuller briefings about how they apply to them.

    “Acutally, no, it was not in keeping with US law as interpreted by the courts . . .”

    None of what you say about this conflicts with what I said. The OLC analysis of Article 16 (that the US law enabling it was limited to constitutional protections, etc.) was consistent with what courts had held. Your objection to the way OLC advice works as quasi-law, issues with the McCain Amendment, etc. doesn’t show the OLC advice about Article 16 was incorrect.

    • Mary says:

      Your words were, “A band of unquestioning disciples”

      I think that who you are talking about is about as easy to see as Goldsmith’s self interest (other thread) but no one is forcing you out or forcing you to be a part of a band of unquestioning disciples and that kind of foolish rhetoric just shows that, when your arguments are challenged you find it easier to moan that people are being big ol meanies when you are just being skeptical – instead of diggin in and offering up something substantive.

      For example, you never respond substantively to my explanation to you of why the bullet points expanded the (already absurd) memos. Because they leave out the caveats. That’s a huge expansion – leaving out caveats. Instead, you try to make it seem that question is whether or not the document was bullet points or not. It’s cute – how you jump around – but just because you pretend you didn’t get the answer to your question (the lack of caveats expanded the memos grants)

      When you say that you are basing your assertions that the LPs, “were supposed to be no more than summaries of previous advice, and not to be used directly to decide any legal question” on the OPR, you’re wrong. The OPR never really goes into the intent of use of the document by the users. It couldn’t – it didn’t have jurisdiction over the users and some of the lawyers at CIA who would be the gateway to the users specifically refused to cooperate in the investigation. It doesn’t seem that Yoo or Koester ever made any significant inquiry into how or why or by whom the LPs were going to be used and they certainly didn’t make any effort to put anything like, “not for reliance’ or other kinds of short hand references lawyers know how to include on the doc.

      I don’t believe that you actually know about the uses and users, bc the document doesn’t mention the users or restrict the use and Yoo and Koester don’t really do more than make a self serving “it was just summary stuff” claim. They had a duty of inquiry into use and users and a duty re: limitations language.

      Re: Article 16, you are again trying to play around with your question and language. You originally said that the OLC analysis was, “in keeping with US law as interpreted by the courts” and now you want to say that it is merely the part of the analysis that US law enabling CAT (and Art 16) was limited to constitutional protections that is consistent with what courts have held.

      I’ll agree with the enabling resolution constructions. What I don’t agree with is that courts have construed those constitutional protections at issue to allow for the activities discussed and solicited in the memos and, indeed, the few authorities that we have indicate over and over judicial condemantion of actions such as waterboarding and assaults – and of course, the memos picked and chose on their facts, since we know from Comey’s emails that he, his COS, Gonzales and Bradbury were all aware that a lot of addtional “premliminaries” were included in the torture regime.

      • bobschacht says:

        You have a lot more patience than I do.
        You spend more time on some replies than the commenter deserves.
        But I’m sure that some other commenters appreciate your attempts to lay out your legal insights again, in case we missed those points earlier.

        Bob in AZ

  18. sanpete says:

    “no one is forcing you out or forcing you to be a part of a band of unquestioning disciples”

    Again, I didn’t say that. I don’t think what I’ve said is as hard to follow as you’re trying to make it.

    “when your arguments are challenged you find it easier to moan that people are being big ol meanies when you are just being skeptical – instead of diggin in and offering up something substantive”

    Obvious baloney. The comments I’ve referred to, when they’re even coherent, make no challenge to my arguments, and I plainly do make substantive replies to substantive points.

    “For example, you never respond substantively to my explanation to you of why the bullet points expanded the (already absurd) memos. Because they leave out the caveats.”

    Huh? I certainly did respond substantively. As I said, the caveats you have mentioned aren’t about Article 16, which is what was at issue, and they’re just bullet points, not advice to be directly applied anyway. That you consider the latter part “cute” doesn’t alter its direct relevance.

    The OPR report does in fact give information about the intended (and actual) use of the bullet points. Koester was told the summary would be used by CIA counsel to give to the IG for their investigation of the interrogation program to show that OLC had given advice, which is consistent with what OPR found in Muller’s correspondence (100-101). Yoo said they weren’t intended to be applied directly (116). The fact that the document is unsigned, not on OLC letterhead and is clearly only a summary rather makes any further signs of its not being official OLC advice for direct application superfluous. I doubt anyone at OLC took them all that seriously.

    “now you want to say that it is merely the part of the analysis that US law enabling CAT (and Art 16) was limited to constitutional protections that is consistent with what courts have held.”

    Did you miss the “etc.”?

    “What I don’t agree with is that courts have construed those constitutional protections at issue to allow for the activities discussed and solicited in the memos and, indeed, the few authorities that we have indicate over and over judicial condemantion of actions such as waterboarding and assaults”

    Not on the grounds of Article 16. The courts agree with Yoo that the 5th Amendment doesn’t apply to noncitizens abroad, and the 8th doesn’t apply in cases where there is no punishment for a crime.

  19. jimhicks3 says:

    EW et al –
    Has any one catalogued the time line of detainees being interrorgated thru ‘organ failure’ with the time line of all these memos?
    I know they’ve killed a fair amount of ECs trying to get at the truth, but it would be useful to see the timing

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