Abu Zubaydah’s Torturers Relied on July 13 Yoo Fax, not Bybee Memo
There’s an astounding passage in Bybee’s Second Response to the OPR Report that reveals that Abu Zubaydah’s torturers relied on a July 13, 2002 memo Yoo sent to John Rizzo, rather than the Bybee One Memo, for their general torture authorization.
In a passage attempting to refute OPR’s assertion that the Bybee Memo was written so vaguely it could easily be misinterpreted, Jay Bybee’s lawyer, Maureen Mahoney, examines a set of documents the CIA wrote about torture to show (she claims) that CIA never misinterpreted “OLC’s advice,” including the Bybee One Memo. It’s clear that the documents she refers to include at least CIA’s own Interrogation Guidelines, the Bullet Points written to summarize OLC’s advice, the declination memo the Counterterrorism Center wrote in the Salt Pit killing, and a memo Jonathan Fredman, CTC’s top lawyer, wrote to the Abu Zubaydah interrogation team.
Here’s how she describes the Fredman memo:
In addition, the documents OPR uses to reveal the CIA’s understanding of the standards in the Bybee Memo (e.g., Report at 65-66) do not suggest there was any misinterpretation going on. As shown in subsequent sections, these documents (which Bybee never wrote or saw) were actually correct statements of the law. [Redacted] memo to the Abu Zubaydah interrogation team, for instance, which quoted from Yoo’s July 13, 2002 fax to Rizzo, provided a correct summary of the specific intent element. Report at 66; infra Section N.A. It is correct, as Yoo wrote, that if an individual “undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture.” Report at 48; infra Section IV.A. [PDF 32; my emphasis]
We know this memo was from Jonathan Fredman, because Mahoney refers to it again on the next page, and in that reference, the name “Fredman” is not redacted.
As this passage makes clear, Fredman wrote a memo to the Abu Zubaydah torture team including an analysis of how intent plays into Torture Statute. Now, the passage of the OPR Report that discusses this memo (document pages 65-66; PDF pages 71-72) is entirely redacted. But it appears after discussion of the finalization of the Bybee Memo on August 1, 2002, suggesting Fredman’s memo was sent after that date. Indeed, the first passage after the long redacted section refers to “a cable  sent out last week, following the issuance of the opinions,” which would seem to be a reference to Fredman’s memo. In other words, the memo appears to post-date the Bybee One memo.
Nevertheless, the memo doesn’t refer to the Bybee One Memo for its discussion of intent. Rather, it refers to the July 13, 2002 memo that John Yoo faxed John Rizzo. While we can’t prove it with the redactions, it appears that Fredman made a conscious decision not to refer to the finished, official OLC memo, but instead referred to the more informal fax Yoo had sent earlier in the month.
There are several reasons why Fredman might have relied on the earlier fax rather than the finished opinion. The fax is much more succinct, relying exclusively on intent. At a minimum, the brevity makes for easier citation.
But there is also a different emphasis in the earlier fax. Fully one third of that fax deals with what it takes to be guilty of having specific intent to inflict severe mental pain or suffering. The fax concludes that,
Moreover, to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose, of causing prolonged mental harm in order for the use of any predicate acts to constitute torture.
Whereas the Bybee One Memo admits that it may not be that simple.
It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute.
Given that the torture team’s interrogation plan included waterboarding and once included mock burial, Yoo knew that the “threat of imminent death” was not just a hypothetical example, but was the plan. One of his memos excuses such threats entirely, whereas the second one caveats his excuse. Fredman chose to cite from the fax that excused such threats entirely. And that language, notably, is precisely the language Mahoney cites, claiming that Yoo interpreted the statute correctly, even though Yoo himself would go on the caveat that interpretation just weeks later.
But there’s an even simpler reason why Fredman would cite from the July 13 fax rather than the August 1 Bybee Memo in his cable to the torture team. We don’t know when the torturers started waterboarding or whether they used mock burial with Abu Zubaydah. AZ himself said it started two and a half to three months after he arrived in the black site in Thailand which–even accounting for some disorientation he had from the torture–would probably put it before August 1. And we know that Condi gave the go-ahead for torture on July 17–provided OLC had approved it, which arguably the July 13 fax already had.
In other words, there’s a great deal of evidence to suggest that the torture started before Bybee signed the August 1 memo. In all likelihood, the torturers had already threatened AZ with imminent death. And if you’re Jonathan Fredman trying to provide reassurance to torturers in the field that they won’t go to jail for their threats of death with Abu Zubaydah, you might cite the earlier “authorization” from OLC to do so.
All this time, we’ve been arguing over whether the Bybee One Memo could have legally excused the torture of Abu Zubaydah. But the question is moot! Because the torturers weren’t relying on the Bybee One Memo. They were relying on a one page fax sent several weeks earlier.
And all this time I thought a previous post was a big reveal.
Great post. Great find. Great investigative work.
Yoo did CYA for himself in the second, which means he gets the “intent”.
tonight on Charlie Rose
LEVERETTS TO APPEAR ON CHARLIE ROSE (voices of reason based on facts)
Just plugged the netroots nation conference over at “Race for Iran” and asked Hillary and flynt Leverett if they would consider attending and being guest speakers or on a panel about Iran. Worth the question.
EW – I’m going to go you one better on the Bybee memo saying it’s not that simple
The Bybee memo actually says, in legalese, that OLC isn’t the entity that can decide the issue of good faith and more directly, that the entity that does make that decision – a jury – is not going to buy the argument that you didn’t realize you were torturing someone bc, instead, you had a “good faith” belief that you weren’t.
Like the Gonzales Jan 2002 memo and how the focus was on “quaint” Geneva Conventions customs vs. his outright recognition that if they couldn’t come up with an argument to get out from under the US War Crimes Act they WERE COMMITTING domestically chargeable war crimes, it’s always bugged me a bit that the focus on the Bybee 1 and later Yoo to Haynes memos was just on the horrors that they chose not to call torture, as opposed to their outright admissions in the memos that by law, it is a jury that decides – based on a FULL FACTUAL revelation (including those *preliminaries* and the CIA Aug 2002 memo on innocence etc.) what is, or isn’t, reasonable to call torture.
And their revelation that if their own acts – generating a series of memos soliciting and authorizing acts that they know will cause mind altering pain and humiliation – fail (as they already have with retractions) to meet a baseline normalcy standard, then it isn’t just the field torturers, but the torture solicitors, who has to confront the problem of proving that they truly had the belief that they weren’t authorizing torture. To confront the problem of watching America’s – and the World’s – reaction to the Abu Ghraib pictures and still not acting to withdraw their opinions as they realized the reasonable person’s response to a picture of what they were verbally authorizing.
In any event, IMO the biggie that is hidden in the memos isn’t really the mens rea issue of whether or not intent to engage in the predicate (statutorily prohibited) act v. intent to to cause the damage that results from the commission of the predicate act, but instead the flat out admission that it is not a OLC memo, but a jury looking at all facts and circumstances who will determine whether or not torture has been committed and that such a jury CAN INFER intent to torture and will infer that intent unless someone can ante up a damn fine reason as to why they really didn’t think they were torturing when the natural and probable consequences of their actions are torture.
IOW, the Bybee 1 and Yoo to Haynes memos on torture both argue that whatever their academic theories on “specific intent” the actual workings of a trial would be: that facts and circumstances are used to prove intent to a jury (with no need for someone’s flat out confession of his intent to torture); that juries will look to the reasonable and natural results of the actions undertaken and if they think they are reasonably likely to result in torture they can infer specific intent to torture; and that, more than “can” infer, a jury “will in all likelihood conclude the defendant acted with specific intent” and “it is highly unlikely that a jury will acquit.”
So back to the old point, the torture lawyers are all pretty much in agreement that there is no good faith defense to torture. It’s just guys like Sessions and Cornyn and Obama that beg to differ.
Thanks for that Mary. I keep wondering whether you or bmaz is going to write up the big post on intent you both keep writing about.
But as to your point–isn’t that another big difference between the Bybee One and the Yoo fax? That the Yoo fax doesn’t admit to any role for the jury?
Yep – a huge big difference. Not only does Bybee 1 mention the role of the jury, it pretty much makes it clear that if it walks and talks like a duck, a jury is going to call it a duck and that specific intent isn’t proven by hard evidence, but rather is an inference jurors draw based on their consideration of the totality of the facts and circumstances.
I think it’s a really important “find” that the torturers were relying on the fax instead of the memo and pretty important to figure out how that happened, especially when the memo itself was out and especially especially since the Zubaydah torture took place prior to the memo and the fax. Ashcroft’s “i dunno-s” that you pull up in another post are pretty interesting in that regard – did The Principals authorize, or not and based on what – an AG or DAG ok, vs an OLC opinion?
Almost a purloined letter…
Thanks for the comment.
Thanks for another fine bit of sleuthing (Mary’s caveat notwithstanding)!
I wonder if Obama really understands the briar patch he is in, and into which he has willingly jumped by “looking forward, not backward.”
And this is despite his own candid admission, in an entirely different context, that one cannot move forward without looking backward (documentation in a previous thread here at the Wheel house). Irony abounds.
Bob in AZ
IMO, Obama doesn’t view a briar patch – he is “Hope” and “Change” and rhetorical flourishes, not an actual man who has responsiblity to his nation and the world and history for his decisions. He sees so many other entities to whom the buck can be passed, while he passively does nothing other than steeple his fingers and attempt to look above it all.
He’s got the likes of Schumer and Graham going to town on bipartisan legislation, and the likes of Kavanaugh and Brown opting in for judicial negation of the judicial branch itself.
You don’t have a whole administration take the “sit back, relax and just make no decision” approach unless that comes from the top. He knows he’s not going to be thrown into any briar patch – he controls the briar patch throwing mechanism and the others who could implement their own – courts and congress – well, he’s making sure that it will be horrifically costly for them to cross him.
He’s blithely put the courts and judges into crosshairs in the way only someone completely self absorbed could do.
Observation: given the elastic definition of “material support” that the administration of “Bygones” Obama cites in supporting acts of rendition and detention, it seems fair to claim state Obama personally is providing material support to torturers…
In fact, that seems adequate even if a reasonable definition of “material support” is used. To the layman, it would appear that even a phrase such as “strenuous support” is entirely justified. Obama has law and decency on the rack, and he is not going to let go.
This is admittedly an isolated quote from the Bybee One memo, but its first and second sentences appear to obfuscate a) having sufficient mens rea for a predicate act with b) what predicate acts are sufficient to convict on the crime of torture:
The view this section seems to want to discredit is that one can establish the crime of torture by showing that someone had the specific intent to cause, in this example, “prolonged mental harm” — as part of a process, say, of breaking down a victim’s psyche in order to get them to talk — and, in fact, to cause that prolonged mental harm. One need not also have the specific intent “to torture”.
But the second sentence changes direction by including the phrase, “rather than that the defendant intended to cause it.” That makes the argument circular. Causing prolonged mental harm without having the specific intent to do so would not establish the specific intent sufficient for a conviction.
That’s entirely different from the opening argument that it sought to counter, that intending to and having caused prolonged mental harm is sufficient for a conviction on torture.
I’m not sure I’m reading it the same way (then again, IANAL). He’s trying to refute the argument that all it takes to charge torture is specific intent to do one of the predicate things–which includes threatening imminent death–whether or not along with that intent to threaten imminent death, you also intended to cause severe mental harm with it.
This, and what I read Earl to be saying, is the “merging” I was referring to above. The intent for the result merges, i.e. is presumed, from the fact that that you did the act, the act could cause that result and the act did cause that result. This shit goes on every day in every criminal courtroom in the land and it NEVER is viewed as they tried to game it.
I think you’ve nicely and pragmatically made the point. Intending to and actually threatening a prisoner with imminent death – live burial, prolonged waterboarding, a loaded gun to the head – by football player-sized aggressive jailers who appear physically capable of doing as threatened, would be deemed torture by virtually every jury and judge. “Specific intent” to induce “prolonged mental suffering” would be assumed from the facts and common knowledge.
The exceptions would include Texas juries, which would convict a little brown furriner of anything (drugs and death penalty cases of late prove the point), and comparable judges like Thomas, Kavanaugh and Brown. But they are outliers.
As for parsing “prolonged”, we know that time is relative. Recall that infamous Vietnam war photo of the officer shooting a man in the street. How long did the victim think it took for the hammer to strike the round?
To expand a bit on the point bmaz made, there are times when you don’t want someone to be criminally responsible for something that was done with a truly naive lack of understanding of criminal consequence or where a situation that was never intended to result in a negative consequence just goes terribly wrong.
So, for example, let’s say someone is guarding a person who is suspected of a crime and that person begins to have seizures. The Guard calls in to his superiors or a doctor, they tell the Guard to give abc ccs of drug xyz to the detained person to control the seizures, the Guard does that and the drug or amount is wrong, or the person has an allergic response, and the detainee who was having the seizures is left in an unresponsive coma.
Now the Guard may have “intended” to give abc ccs of drug xyz, but might have a really good argument that he never intended to leave the detainee in a coma, that he really believed in good faith that he was doing something to help treat the detainee rather than harm them.
This is, however, where Yoo and Bybee get into real trouble with the concept that you are going to take things that are already criminal acts in most contexts – assaults, detentions without charges, forced stress positions, etc. – and say something like this: everyone knows and understands that these acts are normally criminal acts (assault, forcible drugging, battery, stripping and photographing, kidnapping, etc.) because they are inherently wrong HOWEVER since this is all happening outside of the United States and being done to non-US citizens, the laws applicable to the criminal acts in general just don’t apply – – – BUT, this torture statute does. Hmmmm. But hey, as long as they guys who KNOW they are are engaged in wrongful behaviour under US law ONLY intend to engage in normal criminal behaviour against their victims, we can argue that they didn’t intend to cause the degree of suffering from their societally abnormal, unprotected behavior that would be necessary for the activity to be torture, OR we can argue that if they have a primary purpose other than torture that they intend, then the secondary fallout doesn’t matter.
So let’s say a CIA agent is overseas with a microwave and a baby. There’s a statute that says it is torture to cause prolonged harm to the baby by placing the baby in the microwave. Now, we all know that putting the baby in the microwave and turning the microwave on would pretty much be illegal in the US, but is it “torture” for the CIA agent to put the baby in the microwave and turn the microwave on and thereby cause prolonged harm to the baby, IF he only “intended” to cause harm that wasn’t prolonged or if he only intended to use the microwaving of the baby as a tool to get the parent to talk.
That’s the Bybee/Yoo approach – that a jury would not infer an intent to torture the baby, even with a statute particularly warning about microwaving babies, under the same legal theory that might allow the guard who gave drugs thinking it was going to help a detainee and instead causing severe harm to escape criminal liability.
Nice argument, and thanks for pointing out that the predicate acts themselves are ordinarily felonies. In certain circumstances and when combined, they can also reach the level of torture. And that’s under the law of the home jurisdiction of these “guards”, not some foreign law they can’t be expected to know.
That’s one reason these lawyers and their politician patrons were desperate to locate their prison(s) in a place where they hoped no law would apply. That search itself, I would say, nearly makes the case for criminal intent.
IIRC I think the Levin clean up memo even flat out says something really bizarre up front, like ** our interpretation of the law in this memo is premised on the assumption that no court would ever take jurisdiction, cuz if they did, all bets are off** OK, not those exact words*g* but something that struck me in very much the same way.
@34 – exactly – that’s why all the “theoretically” references and also the big hole they leave on how, typically, specific intent is proven to a jury – since there is almost never any direct evidence of specific intent.
You’d think they’d spend a fair bit of time discussing the kind of inferences and circumstantial evidence etc. that a jury might point to – things like a torturer asking for a get out of jail free card from OLC for his torture as being evidentiary of his knowledge that he was …torturing.
When you tell a client that no court will or will be allowed to take jurisdiction in order to decide the question, you’re saying you have an opportunity to make up the law, because no one with adequate authority will be able to challenge you. That’s one helluva qualifier on a legal opinion; it makes the whole exercise, in fact, extra-legal.
On rereading it, you’re correct. His argument is that having the specific intent to commit a predicate act – eg, threaten a prisoner with imminent death – is not sufficient, even if you cause prolonged mental suffering, unless you also intended to cause prolonged mental suffering.
That’s medieval hairsplitting that would have Jesuits and Franciscans clawing at their figurative throats. It would gut any criminal statute. I would expect it from a zealous criminal defense lawyer, not a lawyer at OLC attempting a fair reading of the law.
Right. Total BS. Defense lawyers use that sophistry all the time in closing arguments. Right before the jury convicts their clients. Happens every day.
This is why Margolis ought to be disbarred for saying the rot was reasonable. It is laughable.
Oh, and btw, for those who don’t recall Jonathan Fredman’s biggest claim to fame, he’s the guy who said “If the detainee dies, you’re doing it wrong.”
As has been discussed earlier, for there to be reasonable reliance on the advice of counsel, one must actually have that advice (not just an order from a superior), that advice has to pass basic muster, and it must be the basis for acts not yet committed.
Yeah, they actually had a pretty healthy realization that the real world of courtrooms would laugh them out of the judicial well. Out here in the criminal defense streets (or at least out there where I used to roam), what they fear is that intent becomes subjective for the jurors – it is what they find it to be – and intent very often, if not predominantly, merges with the act. You aim a gun at somebody and shoot them, a jury is going to find that you intended to kill them and/or had a reasonable expectation you would. Same applies to torture. This is why these declinations and parsing by the DOJ are so infuriating; it is simply an excuse to not charge their own government co-workers with the obvious crimes. Cross reference the Charles Taylor case if you have any questions about how they do it when it is not their buddies.
At what point will all of this work amount to a package that can be taken to a court? Has it reached that point? What court? Who would have to take it all to that court? Who would be the accused?
That is the problem, it will only get played out in a criminal court, and the DOJ would have to charge that. they will never charge because the DOJ itself is too compromised and complicit. This is a feature, not a bug; and a very effective one at that.
The only other options are independent prosecutor of which there are no provisions for, Congressional investigation of which there is no desire or skill for, a bar trial which Margolis precluded and a couple of civil suits that Obama is fighting like hell to clam up. In short, we got nuthin.
Anything international? World Court? Seems that the people wronged are foreign, for the most part. Seems also that international ethics (hah!) have been affronted. Somebody in a country not directly involved might object to the degradation in the behavior of one nation towards another.
They have effectively no usable jurisdiction over the US. Just in the last few days, there has been talk by the Obama Administration about actually joining the ICC – on the provision that the US is not subject to the ICC. That is how we roll. The Spanish judges cannot get personal jurisdiction over US governmental employees, The US will veto any UN action. And on and on and on.
I wonder when we will become the South Africa of the 21st Century.
speaking of the Devil, LATimes up with a new interview with Yoo –
“In Berkeley, Yoo feels at home as a stranger in a strange land”
Hey klynn – ygm. ;-)
I favor the comments upthread which depict the scenes as a jury would, person torturing, person getting tortured. By the time Bybee and his attorney are into 132 pages of their 167 page Second Response to the Office of Professional Responsibility report, Bybee/counsel have painted many images of torture, and have captioned each image as line personnel either torturing according to an official Bybee parsing of torture or else exceeding Bybee approved torture. The Bybee/counsel refutations are vacuous words.
The fax from Yoo to Rizzo 2 pages has an interesting ungrammaticality, likely a typographical error, but perhaps a glimpse of who actually typed the fax. The fax opens with the qualifying statement that it is a first impressions summary response to topics from a meeting which took place, rather than a final exhaustive opinion memorandum. Next, it arrives at its contorted misstatement of how humans exert willpower. The section begins,
**…Moreover, to establish that an individual has acted with the specific intent…** The fax arrives at the ungrammatical typo passage toward the end of that ¶ **…If, for example, efforts were made to determine what long-term impact, if any, specific conduct would have and it was learned that the conduct would not result in prolonged mental harm, any actions undertaken relying on that advice would have be [sic] undertaken in good faith…** Maybe this error is simply JKoesterHardy accidentally omitting the verb ending for the past participle; however, maybe it is Yoo lapsing into a personal tendency toward employing the infinitive of the verb *to be*. I agree that the fax seems a hasty pudding. So it might be all of the above.
Reading Bybee/counsel second response, and the Yoo to Rizzo fast fax before the actual memorandum opinion, the impression is differing kinds of sloppiness but all 3 individuals are relying on the picturelesness of discursive writing. A jury would have more, viz., photos; reading specious chaff disclaimers while looking at guys doing torture.
Here is Bybee/counsel 132/167 ranting about the **discomfort** of beatings, not tortures, though:
**Second, OPR offers no reason why OLC should have assumed that the CIA would use shackling and beatings to *ensure that [the enemy combatants] maintained those positions.* Report at 237. To the contrary, the Classified Bybee Memo included an explicit understanding that *there is no aspect of violence* to either stress positions or wall standing. Classified Bybee Memo at 13. Both positions would be *used only to induce temporary muscle fatigue,* **
In one section of the Bybee/counsel Second Response, Bybee/cousel reach out to incorporate Mukasey*s pleas not to prosecute Bybee or anyone in the department. In other passages Bybee/counsel say executive mandated deliverable deadlines made incorporating responses to Philbin 11th hour misgivings impossible.
I wonder where a jury would pass voir dire and still be able to read those autoexculpations as credible. The Yoo to Rizzo fax and the Bybee Second Response are chaff, and the mindless disputations concocted by the cozy bureaucracy to insulate itself from the world into which they let their professional standards descend in the service of executive mandated deliverable deadlines.
[email protected] I had a few nice cofee hours in that facility, although the suit did not have the obligatory leather elbow pads. Maybe Yoo should try the caff in the Museum; it is more abstract, smaller, and has both indoor and outdoor components, in sum, better chance for privacy and less of an expectation of *collegiality*. What an affront to try to fit in the exclusive faculty lounge.
They really are running down the intent rabbit hole with this one.
They say that when the statute lays out A-D descriptions of actions and defines torture as prolonged mental harm resulting from those actions, that a torturer can blithely engage in the very described actions and if the result is the statutorily warned about result – prolonged mental harm -that the torturers can just claim they didn’t intend to cause the prolonged mental harm.
Given their prior discussion on jury inferences about actions and their results, it’s pretty interesting that they didn’t bother to re-mention the fact that having the statute itself single out activities and expressly warn about those activitites won’t heighten the likelihood of an inference of intent, is kinda, um, sloppy. ;)
And the best support they got, from what I saw, is some outlier 3rd Circuit case that is patently idiotic.
Now now, you forget they have cases saying that if you send something through the mail that you think is true, you might not be liable for mail fraud.
That one may be really helpful to Yoo. ;)
One would think a competent prosecutor would make that very argument and blow an Atlanta Federal Penitentiary-sized hole in the defense’s claims.
Orwellian word games, bureaucratic insubordination, and hide-the-pea-national security claims of secrecy aside, these guys knew that. They had to be relying on political, not legal cover, for their actions. Cover that would continue years after Cheney’s next heart attack or John McCain’s next stroke-inducing temper tantrum. How odd that a Democratic constitutional lawyer president should give it them. Perhaps that’s why the bottles on his desk and bedside table read, “Drink This: Co-opted”.
Mary and other smart lawyers thinking about intent.
Recall that when Chertoff reviewed the Bybee One memo (around July 26), he said this of the intent language, per Philbin’s memory:
Great sleuthing, EW, matching up the July 13 memo with the OLC replies to get to the reliance of the torturers upon that earlier Yoo memo.
I’d note that earlier I inferred it was this same memo, faxed to the AZ torture team, that motivated the production of AZ’s famous psych evaluation.
Note the “evidence gained from past experience”. I see now, looking ahead to posts you’ve already written by the time I write this, and Jason Leopold’s new article, that this phrase refers to the experiments done on AZ. I had thought they were referring to previous interrogations, or the research on stress among mock prisoners. I see now it was experiments all along.