The Context of the July 13 Fax

As I pointed out in an earlier post, when Counterterrorism Center lawyer Jonathan Fredman sent the torturers in Thailand a green light for torture in August 2002, he relied on language about intent from a July 13, 2002 fax from John Yoo to John Rizzo rather than the finalized August 1 Bybee Memo. In a second post on this, I also showed that both of Yoo’s nominal supervisors–Jay Bybee and John Ashcroft–claim they knew nothing about that fax. In this post, I’m going to show how that fax appears to arise out of DOJ discomfort with CIA’s torture program.

As the timeline below shows, Yoo dated (but did not send) the fax the same day that the numerous parties involved in reviewing the Bybee Memo had an apparently contentious meeting at which they discussed the draft memo as well as the CIA’s torture plan (I’m doing a big update on the Torture Timeline, so some of this is not reflected in the timeline yet).

July 10, 2002: John Yoo tells Jennifer Koester that they will present the Bybee memo to NSC at 10:45 on July 12 (and names the Bybee Memo the “bad things opinion”!).

July 11, 2002: John Yoo and Jennifer Koester have briefing session with Michael Chertoff on Bybee Memo.

July 11, 2002: An OLC paralegal cite-checks the draft, and someone schedules a July 12 meeting with Alberto Gonzales and a July 13 meeting with (effectively) NSC.

July 12, 2002: First draft of Bybee Memo distributed outside of OLC.

July 12, 2002: John Yoo meets with Alberto Gonzales (and either David Addington or Tim Flanigan) on Bybee Memo.

July 13, 2002: John Yoo and Jennifer Koester present July 12 draft to John Rizzo, John Bellinger, Michael Chertoff, Daniel Levin, and Alberto Gonzales. Rizzo provides overview of interrogation plan. Chertoff refuses to give CIA advance declination of prosecution. Levin states that FBI would not participate in any interrogation using torture techniques, nor would it participate in discussions on the subject.

July 13, 2002: Rizzo asks Yoo for letter “setting forth the elements of the torture statute.”

July 15, 2002: John Yoo faxes John Rizzo July 13 letter on the torture statute.

July 15, 2002: John Yoo sends Jennifer Koester an email telling her to include a footnote in the opinion stating that they had not been asked about affirmative defenses like necessity, self-defense, or commander-in-chief powers.

July 16, 2002: John Yoo and Jennifer Koester meet with Alberto Gonzales and (probably) David Addington and Tim Flanigan. Yoo shared the July 13 fax with them. At the meeting, it is decided that Yoo will include Commander-in-Chief and other affirmative defenses in Bybee Memo.

July 16, 2002: In response to earlier request from Michael Chertoff (perhaps as early as July 13), John Yoo has Jennifer Koester draft, but not send, a letter to CIA refusing a letter of declination of prosecution.

July 17, 2002: George Tenet meets with Condi Rice, who advised CIA could proceed with torture, subject to a determination of legality by OLC.

Of course, two things are going on in the background. First, when Ali Soufan left the black site in May because James Mitchell threatened Abu Zubaydah with mock burial, DOJ got official notice that one of its top terrorism agents believed that the CIA was using torture with Zubaydah. Yet, two months later, the torturers were almost certainly already using the most aggressive torture with Abu Zubaydah.

What seems to have happened is the following. Yoo and Koester were all set for an NSC meeting on July 12, perhaps until they had a July 11 briefing with Chertoff. In any case, something made them reschedule that NSC meeting to arrange an Alberto Gonzales (and presumably, Addington) meeting first. After which they appear to have had an incredibly contentious meeting with Bellinger, Chertoff, Levin and others. Perhaps the fact that John Rizzo presented the latest interrogation plan (which, we suspect, was already in process anyway) made things worse. We do know, for example, that mock burial remained in the plan, even after Soufan had balked when Mitchell tried to use it two months earlier. Whether because of Rizzo’s presentation or Yoo’s draft memo, at the meeting Chertoff definitively refused an advance declination and Levin announced that FBI would have nothing more to do with CIA’s torture program.

And so Rizzo, perhaps noting that the head of DOJ’s Criminal Division and the FBI Chief of Staff were reacting rather unfavorably to CIA’s torture plan, asked Yoo for some kind of cover. In response, Yoo wrote a memo raising the bar for prosecution of inflicting severe mental suffering incredibly high.

What I find particularly interesting is the 2-day delay before Yoo sent the fax, dated July 13, to Rizzo on July 15. That likely coincided with another delay; we know Chertoff asked Yoo to send Rizzo a letter refusing advance declination sometime between July 13 and July 16, but Yoo didn’t act on that request until he had sent Rizzo his July 13 fax already.

Did Yoo get both the request for the letter refusing advance declination and the request for the letter laying out the torture statute at the same contentious meeting?

And then there’s one more unexplainable coincidence. On the same day Yoo sent the July 13 memo (on July 15), Yoo instructed Koester they not only wouldn’t include any affirmative defenses in the memo, but they would claim they weren’t asked for such things. Yet that happened just a day before heading into a meeting with Gonzales and (almost certainly) Addington, at which they did decide to include such things. And incidentally–a fact I hadn’t noted before–Yoo gave Gonzales and (almost certainly) Addington a copy of his July 13 fax at the same meeting where it was decided to add affirmative defenses to the Bybee Memo.

I can’t prove it. But it appears that Yoo wrote the July 13 fax in response to serious reservations from Chertoff and Levin. And in response to that, Addington directed him to add a bunch more defenses (literal and figurative) into the Bybee Memo.

One last point. As I said, one key difference between the July 13 fax and the Bybee Memo is that Yoo rebutted an obvious objection to his reading of how the Torture Statute treated intent with severe mental suffering.

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.

Any bets on whether Chertoff and/or Levin made precisely this argument at that July 13 meeting?

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

43 replies
  1. kgb999 says:

    OT: Ars Technica has an article on a recently discovered piece of hardware being sold to law enforcement that allows them to Spoof SSL certificates and pretty much read any encrypted information. The implication is that the certificate authorities (Verisign, etc.) are likely issuing compelled certificates to allow this spoof to work.

    Lovely.

    • readerOfTeaLeaves says:

      I’m doing a big update on the Torture Timeline…

      Woot!
      Happy Birthday to us ;-))

      —-
      kgb999: sh!t. Not surprising; it fits with everything EW’s been writing for several years now. But why is the government befuddled about the circumstances leading to the economic Meltdown of Sept 2008, as well as AIG’s criminal conduct?

      All that control over Verisign, et al, and they can’t track the Madoff money?! They can’t track the AIGFP transactions…? Wow.
      The moon must be made of green cheese, after all.
      Also, I believe in the Tooth Fairy, Santa, and leprechans. (/s)

  2. klynn says:

    Thank you for a great break down of the timeline.

    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.

    Interesting wording.

  3. scribe says:

    Having written many too many memoranda answering the question “what is the law on…” I can say with a certainty that the inclusion of the footnote saying “hey, we didn’t include anything on affirmative defenses” was an invitation to the readers to ask for precisely that analysis. This is particularly the case where the writer and the readers are “on the same sheet of music”, i.e., where the writer is working with the reader toward the same objective(s).

    The writer of a legal memorandum does not have a “roving commission” to go afield and write a book covering everything conceivable that might affect the legal issues at hand. If your reader wanted to read a book, they’d pull one off the library shelf themselves. They don;’t have time for that – or don’t want to get their hands dirty doing it. Rather, they want a (relatively) short piece which answers precisely the questions they asked. No more and no less.

    Pointing out this sort of issue – be it the affirmative defenses to a criminal statute, or perhaps the fact that a line of cases addressing a parallel alternative theory of seeking relief is endangered by the anaylsis in the line of cases you’re addressing (in other words, “if you were thinking about following theory ‘B’ because theory ‘A’ won’t work, please note that the cases telling you theory ‘A’ doesn’t work also cut the legs out from under theory ‘B’, so we gotta try something else”) – is either the professional approach (“hey, you’re up against a cliff here – watch out”) or the co-conspiratorial approach (“hey, we’re up against a cliff here – watch out”). Dropping that footnote is then the lawyering analog of Timmeh Russert tossing Deadeye a softball question which facilitates Deadeye getting his message out.

    So, after dropping the footnote and sending out the memo, Yoo and Koester get feedback from the consumers of the memo asking them to address the additional questions raised in the footnote. That was the intent of dropping the footnote in the first place. It’s what Yoo and Koester did in addressing the affirmative defenses which shows that their approach was not the professional approach but, rather, the co-conspiratorial approach. The professional approach in addressing the affirmative defenses would have included, at a minimum, the following:

    1. a short statement, supported by one or two cases, that affirmative defenses must be proven at trial by the defense and the standard of proof for the affirmative defenses is whatever it is. The standard of proving the affirmative defense may vary, depending on the defense – some are a preponderance of the evidence, some are clear and convincing evidence, in some the prosecution has to rebut the defense by proof beyond a reasonable doubt.

    2. a defense-by-defense analysis of the defenses, including addressing whether the defense has ever been tried in court.

    As to the commander-in-chief defense, I cannot recall a single case that has addressed it. Yoo’s and Koester’s failure to address that fact and say “hey, this theory is a wholly untested-in-court, so we’re just speculating it will work” is a red flag telling me they were just putting ink toner on paper to cover peoples’ asses with “the lawyers told us it was OK”.

    Which was Bushie’s mantra, you will recall.

    Similarly, a number of you, led by BMAz, have noted in yesterday’s thread that in front of a jury the specific intent can be – and usually is- inferred by the jury based on the circumstances. Soberly point the shotgun at the guy’s head and pull the trigger and they will infer that you intended to kill him. Happens every day in the courtrooms of this country. So, Yoo’s and Koester’s failure to mention this empirical evidence while dancing theoretical sophistry around the mens rea definition and requirement of the torture statute tells me they were again papering it over to accomplish the ends they were tasked to achieve.

    And don’t tell me it wasn’t obvious to everyone in the room. Some of you may have forgotten, but Chertoff was appointed to be a judge on the Third Circuit Court of Appeals and served there after being at the Criminal Division (and before becoming secretary of DHS). The kind of sophistry which Yoo and Koester presented as the work product of OLC was the kind of lawyering bullshit which gets you sanctioned (takes money out of your pocket and gets you a yelling at) when you pull it before the Circuit. So, for him to have swallowed this, it tells me he placed ambition and servility to the ushes before any sort of intellectual honesty.

    3. Finally, there should have been a notation to the effect that affirmative defenses have to be tested in court, which would require that those relying on them would have to anticipate a trial.

    Since the memo didn’t include anything like that, you can be sure this memo was ass-covering and not serious. Everyone in the room knew it, and they were good with it, too.

    Kinda tells you what kind of judges Bush was selecting, doesn’t it.

    • emptywheel says:

      But it’s not clear the footnote ever functioned that way.

      They were all still working on the July 12 draft, and as far as the OPR report notes, that draft was stable throughout this period.

      So while it appears to have been Yoo’s first instinctual response to Chertoff’s refusal of a declination–perhaps to do just as you say, to hint to CIA to ask for it–it never got that far. Addington ordered up that section anyway, before CIA would ever have seen that footnote.

      And around this same time, the official “Client” for this opinion shifted. It started out as Rizzo, but it would become GOnzales. Kind of makes sense, though, since the C-i-C stuff was almost certainly designed to protect Gonzales’ early authorizations of the program.

      • Mary says:

        I think you and scribe are both right on this one.

        Rizzo laying out a torture plan for approvals had to have been a bit shocking to guys who understand issues of complicity and conspiracy. I don’t think you could get a stronger circumstantial case that Yoo (who had already been walloped on by Taft back in Dec/Jan and *won* by virtue of having a torture-vested client rather than by making the better argument) went trip trotting into that meeting thinking he’d been oh-so clever and he ran into a fan blade sent his way by Chertoff.

        At the time, Levin would have been there as Gen Counsel for Mueller and he doesn’t really strike aas a force to be reckoned with, but if he was also aligning with Chertoff by making a big deal out of keeping the FBI out of torture, Yoo had to have been a bit deflated. It looks as if there was no Addington at that meeting (so Yoo didn’t have his daddy) and that would have left Chertoff as the force in the room.

        So when Chertoff says *you can try to coach the field torturers all you want with what to say about their intent, but in the end it goes to a jury to decide* he has to have been really emphatic (or icy) on the point for Yoo/Bybee to put in the language that they did, bc the language they put in is pretty damn strong. When you flat out say in your memo that a jury isn’t going to buy that the element of intent was missing, that’s strong.

        Even without the footnote, that kind of thing invites the follow up on defenses.

        So I think Yoo was covering all his bases – drafting the language and footnote so that the torture supporters would ask for what he thinks he’s cleverly hinting at and also running to daddy.

        It’s an important point, about the client shifting. Who is entitled to ask about the CIC powers? Either someone who has received an EO and wants to know if they can follow it or someone who is going to issue it. And the other important point is that somehow, in the memo offerings that Yoo was making, he never offered to examine the existing CIC invocation of power – the EO directing humane treatment of detainees.

        Lots of talk about what isn’t torture, not much talk about what is the CIC ordered humane treatment.

        • emptywheel says:

          No, my point on the footnote is much simpler.

          Yoo proposed it on July 15. And discarded the idea on July 16, having been told to in fact include those items. We know for a fact that AGAG (and almost certainly Addington and Flanigan) were in discussions on that point. BUt we have every reason to believe that no one else learned of the proposed, but never executed, footnote.

          But I definitely agree with what both you and scribe are saying on Chertoff. And thing is, Chertoff almost certainly was motivated out of 1) real experience in front of juries, something Yoo didn’t have, and 2) real cognizance of the risk of having Soufan out there having had labeled mock burial torture. Not necessarily any squeamishness about torture itself.

          Though I will say that Chertoff didn’t WANT to be a judge. Which makes the promotion up all the more telling.

          • scribe says:

            All Yoo had to do was propose the footnote – that’s an even better hint than actually including it, because it leaves less of a trail.

            Chertoff not wanting to be a judge is news to me. If it’s that clear-cut, I’d say (as a jury lawyer) that that makes the conclusive case that he was booted out of Criminal Division to make way for someone more pliable.

            Given there were a couple of major issues with the Bushco Criminal Division, it could be any one or combination of them. Lest we forget, these issues included (and I may be forgetting some):
            1. Torture
            2. Contractor mis-, mal-, and non-feasance and Republican complicity (And grafting) in the manifold contracts of Bushco’s privatization world
            3. Warrantless wiretapping (As he was formerly a US Attorney, he likely had no problems with it conceptually, though maybe in practice – assuming he knew about it. Big assumption.)
            4. Corrupt Republicans (remember how they bolluxed the Ted Stevens prosecution – not an accident, IMHO – and, later, the Blackwater prosecution) and the need to avoid prosecuting them
            5. Targeting Democrats for (selective) prosecution (ask Siegelman)
            6. Seeding DoJ with Regent U grads
            7. $9 Bil cash going missing in Iraq
            8. Wall Street criminality

            So, any one or more of those issues could have been the nasty crossroads where Chertoff’s continued presence in the Criminal Division became no longer advantageous to the Bushbots, and they made him the offer of the Third Circuit seat or else.

            • emptywheel says:

              Uh, you’re suggesting that proposing a footnote to KOESTER had any effect?

              I think you’re entirely misreading the power dynamics involved and the degree to which Yoo, as opposed to Addington, was driving this show. And the extent to which a very junior lawyer finding evidence that Yoo was sort of scrambling to find some way to write a get out of jail free card could affect those around her.

              • scribe says:

                No – my mistake in thinking others beyond Koester were in the meeting/conversation where proposing the footnote was done.

                OTOH, we still don’t know what unwritten conversations took place, so who knows how far (other than Koester) that footnote suggestion or, more precisely, raising the issue of the affirmative defenses, went. This would include his having ready access to the War Council and they to him. It’s entirely possible Addington (or one of the others in the
                Council) either came up with the affirmative defense idea before or simultaneous with Yoo, and then communicated that idea telephoncially and that the footnote died then. Probably communicated in vague terms, but communicated nonetheless.

                I’ve been trying to keep the perspective of limning Yoo and his actions to the exclusion of Addington, et als., so as to avoid the “they’re all in it together” sort of sloppiness. They were all thick as thieves with each other, but that does not obviate the need (or my desire) to parse out exactly what each of them did and when.

                • emptywheel says:

                  Oh, I agree with THAT. It may be that Addington elicited both things–teh suggestion to do the footnote, followed by the suggestion to just go ahead and put that stuff in anyway.

                  All the more reason we ought to have any emails between Addington and Yoo, huh?

                  • scribe says:

                    I’m thinking it was either telephonic or otherwise verbal. Addington strikes me as the kind of guy who avoids email like the plague.

          • Mary says:

            I understand – that Yoo didn’t have to go the footnote route bc he got the ok from Addington. But at the time he came up with the footnote route, he didn’t know for sure that he’d get the meeting with Addington. So I think scribe is right also – I think coming out of the Chertoff meeting Yoo realized that he was getting shot down hard on the “element of the crime” coaching he had thought he could put out. So imo he came out of the meeting scrambling for any avenue that he could use to get his (and Goldsmith’s) pet CIC arguments affirmative defenses in.

            If he hadn’t been able to get the meeting and ok with Addington so quickly, he had a plan B to put in the footnote and try to generate from the footnote the response to include those discussions. IMO, what his scheming on the footnote shows is that rather than accept the Crim Div shootdown, he had made the decision to advocate for torture. If he hadn’t sent that email, it would be much easier for him to tell OPR that he just added the affirmative defense discussions bc he went to a meeting and was told to – – instead he walks out of a meeting where his memo’s approach on intent is shot down.

            His immediate response is to say – well, ok, maybe what they are doing would be a crime, so, umm – ok, um, how can I STILL reassure them on going forwar. Hmmm – let’s footnote a hint to them that they should ask us about how to defend against the crime they are going to commit. Or, as Yoo may have known, had already committed, with his assurances that he had intent covered for them.

            Whether that last part is true or not – that he had knowledge of the fait accompli nature of the torture – his decisions on the footnote reveals a lot about him stepping out of his role as an advisor who responds to specific questions and instead becoming an advocate for torture.

            He went from “here’s the answers to your elements of the crime question, and Crim Div has explained that, theory aside, a jury makes the determination on intent and you guys would be screwed there – a jury won’t buy the *no intent* theory”
            to
            “but hey, if you want to go ahead anyway and COMPLETE THE ELEMENTS OF THE CRIME, here are some affirmative defenses I could coach you on if you want.”

            THAT, imo, is what the footnote issue does and why it’s important to note that he was going to go after it as his plan b if he hadn’t had his meeting and unpapered authorizations.

            So that was my point about, “I think Yoo was covering all his bases – drafting the language and footnote so that the torture supporters would ask for what he thinks he’s cleverly hinting at and also running to daddy.” He was readying himself on more than one front to advocate for having someone go ahead and complete elements of the crime by trying to sell them on their ability to utilize affirmative defenses.

            That is stepping substantially outside his role as OLC advisor who solicits the different department input (and note that he or he and Ashcroft were already cutting out Taft and State on this, despite the OLC role to coordinate the agencies input) and makes the determination. If there was only the meeting, it would really blur who it was that was unsatified with the outcome of the memo and Yoo could just blink innocently and say – well, I was done with the memo, but Addington, Gonzales etc. asked me to include affirmative defenses, so I did.

            That alone would be kind of bad – what advisor says, I just explained to you why a jury would find that you committed a crime so why are you asking me for PROSPECTIVE ADVICE on affirmative defenses? How do you give PROSPECTIVE ADVICE on affirmative defenses without in essence giving a wink to your client on commission of the crime itself

            So when you have Yoo himself telling Koester he wants the footnote – even if it is his plan b – for the memo that is going to be going out to the others, he’s advocating for his client to go ahead with the crime and rely on his propsective advice on how defend.

            BTW – go find a “good faith reliance on advice of counsel” that involves those facts: a lawyer who gives an opinion to the client that they will be fulfilling the elements of the crime if they go forward BUT here is PROSPECTIVE advice on affirmative defenses. There is not and never will be a good faith reliance on advice of counsel like that. You don’t have lawyers giving prospective advice that “yeah, you’ll be committing a crime, but here’s the affirmative defenses you could claim so structure yourself and your actions so as to best allow you to use those defenses.”

            It’d be like telling someone they can’t beat their neighbor on the head with a golfclub “legally” but hey, if you could claim he threatened you first (hint hint) then your golden with an self defense affirmative defense and then having your guy provoke the neighbor, then pull out the handy dandy golf club, then claim “I relied on advice of counsel when I beat my client on the head with my golf club bc my counsel told me that while it was a crime, if I could rig up a claim of self defense, then I was ok”

            In any event, I got away from the point, which was just that I agree with you that Yoo didn’t need his plan b, but imo the fact that he was putting a plan b together has all the significance scribe had mentioned. And more, imo.

            • emptywheel says:

              You, like scribe, seem to be assuming Yoo wasn’t ALREADY working closely with Addington to pull this off in any way he could. That just defies everything we know about Yoo’s actions up to this point and since.

              Yes, the footnote shows that someone–or, more likely, the people working in tandem to get this done–were willing to use whatever means to protect CIA (and more importantly, Gonzales) and briefly considered doing it via footnote. But that doesn’t say anything about who made the decisions or any effect a footnote proposed but never written would have.

              And to suggest that Yoo–a member of the War Council, w/Addington, Haynes, Flanigan, and Rizzo–would be scrambling to get a meeting with Addington on this topic doesn’t make any sense. It’s fairly clear every time he got into trouble, he got a meeting, and given the rescheduled meeting with NSC, it’s not entirely clear he was the one driving that schedule at all (particularly when you consider the repeated scheduling of meetings w/AGAG before more public meetings w/AGAG).

              Finally, this:

              He went from “here’s the answers to your elements of the crime question, and Crim Div has explained that, theory aside, a jury makes the determination on intent and you guys would be screwed there – a jury won’t buy the *no intent* theory”

              to

              “but hey, if you want to go ahead anyway and COMPLETE THE ELEMENTS OF THE CRIME, here are some affirmative defenses I could coach you on if you want.”

              Isn’t accurate. He went from:

              1) Examination of statute
              2) Examination of CAT
              3) Examination of case law under TVPA
              4) Examination of two foreign cases

              to:

              A verbal discussion about non-declination and probably a repetition about DOJ concerns that went back to May and are probably one of the biggest reasons the torturers wanted an opinion in the first place
              A written fax (not shared with his boss) on intent
              A written memo (not sent) on non-declination
              A footnote proposed but never written
              Orders from Addington
              Resulting in intent, affirmative defenses, and C-i-C put into the memo

              • Mary says:

                I don’t really think we are saying different things. I’m not assuming that Yoo wasn’t “ALREADY working closely with Addington to pull this off” Pretty much exactly the opposite – ? I think he was trying so hard to pull it off that he came out of the meeting and immediately went for different modes of trying to implement the affirmative defense approach.

                There’s no reason for him to come up with the footnote concept at all if all he was going to do after the July 13 meeting was sit back and wait for Addington. So I don’t understand why you think he gave the footnote direction to Koester at all if you think that he wasn’t trying to plan b. And you also seem to think that it shows he was keeping alternate track going when you say: “Yes, the footnote shows that someone–or, more likely, the people working in tandem to get this done–were willing to use whatever means to protect CIA (and more importantly, Gonzales) and briefly
                considered doing it via footnote.”

                One of the “someones” we absolutely know about is Yoo. My comment above is partly about what knowing that does to Yoo’s claims that he was just acting as a good faith advisor. Once you’ve advised your client that he’s going to be completing the elements of a crime if he goes forward, you are not acting as a good faith advisor to then nudge him to ask you to coach him on how to spin out an affirmative defense after he commits the crime.

                So I’m pretty confident that my point that Yoo came out of the Chertoff et al meeting and began to operate on multiple tracks to keep the torturers comfortable with torture has support. ?

                I don’t think he had to scramble to meet with Addington – that’s the point I made about it being very important about the client change. So if what you are wanting to do is get away from the discussion I went into on Yoo and his OPR problems and also what adding the affirmative defenses does to the good faith reliance of counsel argument made later and codified even in the MCA, and instead go to, “But that doesn’t say anything about who made the decisions or any effect a footnote proposed but never written would have” that’s fine. I don’t think it means we disagree on that, as much as are focusing on different issues.

                Yoo didn’t have to scramble for a meeting with Addington – but a meeting with Addington alone would only get him so far. OVP was not a possible client for the memo he wanted to generate (although later with their spec ops force control maybe – if that had started by then, maybe so). The client for the memo Yoo wanted to generate wasn’t Addington and OVP, it was Gonzales and WH or Rizzo and CIA. But if he stayed with the CIA route, he would need some kind of discussion as to what the CIA would need from WH to invoke the CIC defense. That wasn’t appealing, to say the least. For OLC to be advising CIA on what kind of a CIC authorization to get for things that were likely to be crimes, so that the CIC defense could be invoked.

                So the question was, with Gonzales coming out of a meeting with multiple lawyers, including FBI GC who was strongly objecting and Chertoff saying there would be no declinations, not so much whether Yoo could get a meeting with Addington but whether Addington could deliver Gonzales.

                The footnote approach would have been one way to try to cover for the WH, so that it wouldn’t be the WH asking for the OLC to coach it how to use necessity and its CIC powers for affirmative defenses to actions that OLC and Crim Div and FBI had already been warning were likely to be found to be completed elements of a crime – but rather a way for Gonzales as WHC to say- oh, well, since you guys mentioned it, why don’t you go ahead and brief that too.

                OTOH, while Yoo might have thought up that approach as a possiblity, there’s no way around how bad that would have looked later. A finished OLC memo warning about how likely it is that a jury would find that the torture activity was torture and a crime, but including a footnote soliciting for OLC to be asked about affirmative defenses, followed by a new memo discussing affirmative defenses. So imo, the footnote approach was likely to have been Yoo (or Yoo and Rizzo) trying to look like he had a clever way to allow the WH to get the affirmative defense info without looking like the WH generated the idea of asking for the defense info, and a better lawyer with the power to make it happen (someone like Addington) stepping in and making sure that instead everything got handled without a paper trail in the memos and via a meeting that could effect a change in client and requested info.

                I don’t agree that my summary of he went from (looks like you will have to worry about having a completed crime if a jury is involved) to (but hey, here are some affirmative defenses you can use, so go on anyway) is inaccurate. It doesn’t include all fo the things that you include, bc we are looking at different things. I do think, though, as a technical matter (and this goes to the point I made on the shift in client) that the “Orders from Addington” part of your summary isn’t completely accurate.

                Whether or not Addington had de facto, I’m your daddy, ability to give Yoo orders or not, the operative facts are that an order from Addington wouldn’t have changed the memo. To effect the change in the memo, Addington had to deliver something to Yoo – and that something was Gonzales. That’s why I highlighted how important the change in the client was.

                Addington had to take a WH counsel that had just been advised by FBI counsel and Crim Div DOJ counsel that what was being described was likely to be found to be criminal by a jury and so likely that FBI couldn’t even involve itself in a discussion of the activities – take that WHC and get him to show up an authorize Yoo to expand the memo that ended with “the CIA is pretty much going to be committing a crime” and have him, on behalf of the WH, explore, “but on behalf of the Dept of Justice at the WH’s request, here’s some coaching on affirmative defenses against the crimes”

                That was a big delivery and I don’t think that after Chertoff’s and Levin’s possible spiels at the meeting, which had multiple witnesses who weren’t on board with the strategies, Yoo could have left that meeting confident that Addington would be able to make that delivery.

                IMO, Addington probably had to arm twist a bit with Gonzales on how deep they were already in and how much he needed the affirmative defense info already. By then, you had Gonzales already saying in January 2002 that “but for” using the enemey combatant’s label, they were committing war crimes. Now you have Chertoff telling him that, even with that label, you have torture statute problems. Picture a Skeletor delivered version of “Danger Will Robinson”

                To pull the WH directly into requesting from DOJ AFFIRMATIVE DEFENSES to torture is asking any WHC to go pretty damn far. Ashcroft must have been laying as low as he could and sweating bullets that Cheney and Addington would pull it all off.

                But as slimey as Addington may or may not be, Gonzales and Yoo have responsbility for what they did and to their positions. Addington may have pulled Yoo’s strings, but Addington wasn’t OLC counsel. Addington may have pulled Gonzales’ strings (and Addington was on WH staff as well as OVP staff) but Addington wasn’t WHC and he’s not the named drafter or named recipient of the memos and he didn’t have authority to request or draft those memos. And he’s not in the evidentiary trail as being at the warning meeting on the 13th. Yoo and Gonzales are.

                I think you can make lots of very valid arguments and spec about Addington and his role or Cheney or Bush (or Ashcroft, the guy I think gets way too ignored) etc. and there’s no reason not to. I’m going a more limited route to what the info available shows about Yoo vis a vis a criminal or prof duties investigation and what it shows about Gonzales.

                I don’t think it’s inconsistent to talk about the professional and other problems the footnote attempt raises for Yoo (or what the affirmative defenses inclusion does to any MCA raised good faith reliance on counsel issues or why that makes the fax that much more important by not giving the info that the WH, as opposed to the CIA torturers getting the fax, was going to be relying on a memo that significantly relied on affirmative defenses rather than the activities not meeting the elements of the crime).

                I think maybe you want to discuss more the guys pulling the puppet strings than the puppets, and I want to discuss the puppets bc they were the guys who could or couldn’t make things happen and who are in the line for what they did make happen. That doesn’t mean that I don’t buy that there were puppeteers and it definitely doesn’t mean that I don’t think Yoo was already working with Addington. It just means that I’m talking about Othello and what he did, while you want to talke about Iago and how he made it happen.

                Or not – fwiw.

                • emptywheel says:

                  Well, to begin with, footnotes of the type that this would have been appear, consistently, in OLC memos from this point forward. That doesn’t necessarily invalidate what you say, but it is worth noting.

                  Second, I think where we differ is in your sense of THIS MEETING when we know that this stuff was going on as early as May and–as I’ve pointed out–was a likely precipitating reason to DO a memo in the first place.

                  And it’s not so much that we’re at a Iago v. Othello discussion. Rather, you’re still focusing on this memo, and while it’s true that the memo was treated in a way it couldn’t have been, given the fact that a bunch of other authorizations were really the operative ones, I’m more interested in the memo not as artifact of law but as artifact of illusion. But I also think you overestimate the degree to which Gonzales was–at this point (as distinct from two years later) cognizant enough to protect himself on this front.

                • earlofhuntingdon says:

                  It would have been clear to Yoo – as it was to other insiders who observed the pristine, carpeted path to Bush’s door and the scuffed, scratched and worn carpet to Cheney’s – that Cheney was de facto head of state and that Addington was Yoo’s patron and potential nemesis (if Yoo didn’t perform as predicted). That’s routine personal and situational awareness among elite bureaucrats, mocked so successfully by Yes, Minister.

                  Likewise, Gonzales’s peripheral role as cut-out and go between, not deciderer, would have been apparent to these insiders. It’s a role that Gonzales had played for Bush in Texas. He would have been self-aware enough to know that if Bush could never tell Cheney no about issues Gonzales was involved in, then neither could Fredo tell Addington no. Unlike many earlier top administration lawyers, Fredo had no independent standing; he was a courtier to the Bush’s as much as Yoo was a courtier to Cheney.

                  Between Yoo and Addington, it seems farfetched to suggest that either had good faith: they were bent on political protection for Cheney and the torture regime he created with Bush’s consent. Conducting a fair reading of the law that would withstand public or judicial scrutiny doesn’t suggest itself as a thought or role either would entertain.

                  I think that Cheney’s peculiar OVP was Yoo’s de facto client, as much as Cheney was de facto head of state. What he had to deliver tangibly, however, to his formal clients was legal analysis that met the requirements set by Addington and the OVP – which, presumably includes the forceful personality of Lewis Libby then, too.

                  Yoo’s work is art of a sort, because as you point out, Yoo had to provide the framework for a criminal defense without acknowledging or leaving a trail to indicate that’s what he was doing.

                  And I’m pretty confident that guys like Yoo and Addington knew that however much they pleased OVP, they remained on the hook for how they performed their formal responsibilities. That was the stick, as was that they wouldn’t perform them for long without pleasing OVP. The carrot was rewarding their ambition and the potential for durable political coverage, one reason Cheney hasn’t really retired, but changed offices, and one reason for why Lil’ Dick’s campaign to serve and protect daddy. That seems to have been a surprisingly and disappointingly good bet, so far.

                  • emptywheel says:

                    A couple of more data points, which may support Mary’s point but also go to your point.

                    1) Goldsmith says that Gonzales only ever disagreed with Addington once, and on that occasion, Addington overruled him.

                    2) Gonzales as much as says that he doesn’t remember how all this happens, but he’s sure that Addington was responsible for the C-i-C and other language in the memo (though it’s unclear when he made that statement, and whether it was during the period when his job woes seem to indicate a real falling out with the Bush-Cheney crowd)

                    3) Yoo/Estrada really emphasized how limited the C-i-C language was to torture personally authorized by the President

                    I’ve always believed that, while Gonzales may have passed on the pre-Bybee approval for torture, it’s pretty clear that that came from Cheney/Addington. Which quickly gets you into the same situation you are with Plame, where Cheney did something in the name of the President, all the while trying to provide him plausible deniability for having done it.

                    • earlofhuntingdon says:

                      Thanks for that.

                      The Vice President’s lawyer “overruled” the Presidents? In any normal hierarchy, with appointees with the usual academic, professional and personal standing, that would never have happened. George would have had a little behind-the-woodshed conversation with Dick and Addington would have been humbled or chosen to spend more time with his family. As it was, Fredo was well chosen, as was his nickname, to enable Cheney’s usurpation of authority, not only from Bush, but over key players across the federal bureaucracy.

                      Addington, as the lawyer for the constitutional nullity that is the Vice President, could propose language, but ordinarily, it would be the same as Koester proposing language; it would either be on instruction or offered as a suggestion. Who imagines that Rahm Emanuel or the current White House counsel would take dictation for Joe Biden’s lawyer or chief of staff?

                      In the Bush White House, however, Addington’s word was law or Big Dick paid you a personal or indirect visit and you were in the unemployment line, civil service protection or no. That’s another illustration of Cheney’s complete usurpation of normal executive branch personnel and policy processes. One of my greatest disappointments with Obama is how little he seems to be doing to correct the fall-out from eight years of that corrupting of the policy and personnel processes.

        • emptywheel says:

          One more point on intent.

          The language on intent was also something Philbin objected to (albeit weakly, at least in my impression). So some of that language may have come from Chertoff, some of it may have come from Philbin. Though, interestingly, both Philbin’s and Chertoff’s final comments were integrated on the same day–Yoo told Koester to integrate them on July 26 and he said they were integrated on July 28.

          One thing Chertoff said about the memo was that he remained concerned that it “could be interpreted as providing blanket immunity.”

          Also, those comments would also date to around the time mock burial got excluded.

          • Mary says:

            Also re: intent, while we don’t know everything that was said in the July 13, 2002 meeting, we do know that when Levin ended up with the opportunity to address issues for OLC, intent was something he really hit hard. So he may have said something as well, although it isn’t papered as such since he didn’t even want FBI involved in the discussions (esp. on how to defend against the torture claims that it would also be the entity to investigate later).

        • timbo says:

          re: “human treatment”

          My guess is that there were verbal orders from the top to use that as a code word for something else entirely.

          • timbo says:

            oops. “humane treatment” is what I meant but waited too long to correct directly. Sorry about that.

      • scribe says:

        Well, we don’t know (a) who saw the drafts before they made it to more-final form and (b) who talked on the phone or where/whenever to whom about how the memos were going.

        Knowing who said what to whom when during that time frame might well be critical to deducing how exactly the memos got drafted. We appear to know the big picture: they started torturing captives and then had an “oh, shit!” moment when it became clear they would have to do something to legalize their crimes. They then ran around through a bureaucratic process which they stacked, off-stage, to facilitate coming to the conclusion that what had been done was legal, knowing that although they seemed to be legalizing it prospectively, they would later come back and figure out a way to legalize the past crimes retrospectively.

        That might explain why and when Chertoff got moved from the Criminal Divison to the Third Circuit. To get around his refusal to issue carte blanche for torture, after ginning up the memoranda they bumped him into the judiciary and then went back to clean up the criminality with his successor (or interim replacement – I forget the exact chronology there).

        OT – is anyone else having trouble with their email today?

    • cheneywatchorg says:

      Scribe’s point mirrors what a couple of experienced good friends have weighed in on regarding CIA briefings to Congress. As one put it best, “we aren’t in the custom of blabbing away. We tend to answer exactly what is asked and not an ounce more.”

      The timelines are so important for this. I’m not an investigator at the level of the best FBI, but I’m sure one of their tactics to outing a lie is simply putting things in the order and manner in which they occurred. (an old Chinese adage no less)…

      If not for the timelines, these criminals might truly convince the average listener that all things were properly done and legally justified. The extreme ad hoc ex post facto nature of their activities gives them away of course.

      great job EW and Scribe.

      • scribe says:

        You note:

        Scribe’s point mirrors what a couple of experienced good friends have weighed in on regarding CIA briefings to Congress. As one put it best, “we aren’t in the custom of blabbing away. We tend to answer exactly what is asked and not an ounce more.”

        The thrust behind the CIA’s practice of “notblabbing away” and the lawyers’ practice of strictly limiting their memoranda come from entirely different wellsprings of first principle. For the CIA and intel folks, they say as little as possible to protect secrets – a legitimate (though often overdone) concern. For lawyers writing memos, they need to limit the scope of the memo to answering exactly the question asked because there is so much information out there that failing to be so limited winds up producing an unfocused memo which is useless to the client. That, and the client – who pays for this – is not asking for an entire education on the law. They have a specific need – an answer to the question of whether what they want to do is legal, or to whether they have a case where they can sue and win.

        Those wellsprings are entirely different and I believe that distinction obtains even in the context of Yoo and his conduct in the OLC which we discuss here.

  4. BoxTurtle says:

    We need to somehow take the responsability for prosecuting government wrongdoing out of the hands of the government.

    We violate the laws we wrote for ourselves. We violate the treaties we signed with the rest of the world. If you’re a religious person, we also violate the laws of God.

    Then we move forward. Nothing to see here, folks. Then it’s all covered up by a cigarette smoking man, just like Xfiles.

    Boxturtle (Do you suppose Obama smokes Marly’s? :-))

    • cheneywatchorg says:

      “We need to somehow take the responsability for prosecuting government wrongdoing out of the hands of the government.

      We violate the laws we wrote for ourselves. We violate the treaties we signed with the rest of the world. If you’re a religious person, we also violate the laws of God. ”

      This brings up a good point regarding special investigators like Patrick Fitzgerald and others. The government investigating itself, being investigated by politically arranged panels, or controlling the release of information that incriminates itself (notably the Executive branch in much of our concerns) is in itself a paradox in the face of Lady Justice. Margolis might be the most noble man in the world, but no single opinion should be that powerful in this…country. (how much longer will I buy into the illusions of our Founders and our country)

      I’d recommend that we pressure congress from both sides to prevent the Executive from investigating itself. Certainly because of the hatred for Obama and Eric Holder, there would be at least some common ground among partisans that overlap. What would the Republicans agree to that people with brains and principles would agree too also?

    • bobschacht says:

      I think maybe we need to have the U.S. AG elected by national ballot, just like in many states the state AG is elected, not appointed by the Governor. I think the experience of the states shows that its a good idea for the AG to be elected, not subservient to the Gov.

      Bob in AZ

  5. JTMinIA says:

    @14

    I would not be surprised if Obama still had the occasional Bob Marley Cigarette, but I suspect that you’re really referring to Morleys.

    • BoxTurtle says:

      Yup. Speling was never one of my stronge pints.

      Boxturtle (For those who don’t know what we’re taling about: Linky)

  6. Fractal says:

    This is a great recap for whenever Durham finally indicts somebody. I’m not holding my breath, but looking forward to making popcorn.

  7. bobschacht says:

    O/T
    Chickens coming home to roost?

    On the Diane Rehm show this morning, they were discussing the recent Moscow subway bombings. One participant noted that Putin promised that the terrorists would be eradicated or some such word. Another panelist huffingly replied that this showed how different the Russian and American system worked, because Putin made no mention of indictments, arrests, or trials. The Russian ambassador(?) then drew attention to our AG Holder’s statement that Osama Bin Laden would never be tried in the U.S. (because he would never survive capture.) In subsequent conversation, he invited listeners to compare Putin’s record on human rights with George W. Bush’s.

    Physician, heal thyself.

    Bob in AZ

  8. BoxTurtle says:

    Yoo is a tool, not a brain. If Addington wasn’t using him, then who was? Cheney would be careful to keep his hands clean.

    Or perhaps this was just a spinless, scared underling, browbeaten with “The next thousand deaths will be on YOUR hands” until he did whatever he was told.

    Boxturtle (If I threatened a DOJ atty, would I get a Get Out of Jail Free or charged with extortion?)

  9. bobschacht says:

    A few threads back, there was reference to the International Criminal Court.
    The U.S. Ambassador-at-Large for War Crimes, Stephen J Rapp, published a statement recently “Regarding Stocktaking at the Eighth Resumed Session of the Assembly of States Parties of the International Criminal Court

    Department of Irony: He wrote in his statement the following:

    While these topics were addressed yesterday, I hope I can add here that the United States also looks forward to sharing our own experiences and “lessons learned” when it comes to meeting the expectations of victims and reconciling the demands of peace and justice in situations where special care is needed to realize both core values without compromising either.

    Bob in AZ

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