How CIA Avoided Negligent Homicide Charges in the Salt Pit Killing

Since the AP story on the Salt Pit death, reporters have focused a lot of attention to a particular footnote in Jay Bybee’s second response to the OPR Report and what it claims about intent (and, to a lesser degree, what it says about Jay Bybee’s fitness to remain on the 9th Circuit). In it, Jay Bybee references a memo CIA’s Counterterrorism Center wrote in response to Gul Rahman’s death at the Salt Pit; the memo argued that the CIA officer in charge should not be prosecuted under the torture statute because he did not have the specific intent to make Rahman suffer severe pain when he doused him with water and left him exposed in freezing temperatures.

Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.

As Scott Horton noted the other day, analysis of the torture statute should not have been the only thing in the declination memo. Prosecutors should have analyzed whether or not Rahman’s killing constituted negligent homicide, among other things.

Note that the declination, issued by politically loyal U.S. attorneys who were subsequently rewarded with high postings at Main Justice, carefully follows the rationalizations that Yoo and Bybee advanced for not prosecuting deaths or serious physical harm resulting from state-sanctioned torture. But the obvious problem, as John Sifton notes at Slate, is that torture and homicide are hardly the only charges that could be brought in such a circumstance. Negligent homicide or milder abuse charges would have obviously been available, and a survey of comparable cases in the setting of state and local prisoners suggests that they are far more common. By looking only at homicide and torture, the prosecutors were paving the way for a decision not to charge.

But the OPR Report and the Legal Principles/Bullet Points documents it describes may explain why this didn’t happen. The Legal Principles/Bullet Points document shows that CIA claimed–possibly, with the tacit approval of the Principals Committee–that the only two criminal statutes that could be applied to its interrogation program were the Torture Statute and the War Crimes Statute.

As a threshold matter, Horton appears to be misstating what the declination memo described in the footnote is and–more importantly–who wrote it. “Politically loyal US Attorneys” did not write the declination described here. Some lawyer at CIA’s CTC wrote it. That’s because, as the OPR Report explains in the section preceding the entirely redacted passage that discusses this letter (the declination letter appears on PDF 98, which appears in the same section as the following quotes from pages PDF 96 and 97), DOJ told CIA to go collect facts about the abuses they reported in January 2003 (which include the Salt Pit killing and threats of death used with Rahim al-Nashiri) themselves.

According to a CIA MFR drafted by John Rizzo on January 24,2003, Scott Muller (then CIA General Counsel), Rizzo and [redacted] met with Michael Chertoff Alice Fisher, John Yoo, and [redacted–probably Jennifer Koester] to discuss the incidents at [redacted]. According to Rizzo, he told Chertoff before the meeting that he needed to discuss “a recent incident where CIA personnel apparently employed unauthorized interrogation techniques on a detainee.”

[snip]

Chertoff reportedly commented that the CIA was correct to advise them because the use of a weapon to frighten a detainee could have violated the law. He stated that the Department would let CIA OIG develop the facts and that DOJ would determine what action to take when the facts were known. According to Rizzo, “Chertoff expressed no interest or intention to pursue the matter of the [redacted].

On January 28, 2003, CIA Inspector General John Helgerson called Yoo and told him that the CIA OIG was looking into the [redacted] matter. According to Helgerson’s email message to Rizzo, Yoo “specifically said they felt they do not need to be involved until after the OIG report is completed.” Rizzo responded to Helgerson: “Based on what Chertoff told us when we gave him the heads up on this last week, the Criminal Division’s decision on whether or not some criminal law was violated here will be predicated on the facts that you gather and present to them.”

Alerted that, in the course of interrogating detainees, CIA had killed one and threatened to kill another detainee, DOJ’s first response (at least according to two different CIA versions of what happened) was to tell CIA to go collect information on the events themselves. Only after CIA finished investigating and presented the facts of the case would DOJ weigh in on whether a crime had been committed.

Four completely redacted pages in the OPR Report explain OPR’s analysis leading up to its recommendation, on PDF 101, that one of the declination decisions in particular–which may well be Rahman’s death, since this passage discusses the declination memo–be reexamined, as well as the others more generally. But the Legal Principles/Bullet Points document (which the OPR Report discusses starting on PDF 106) shows the legal framework CIA used to analyze the killing.

Here’s how Jennifer Koester explained the Legal Principles/Bullet Points document to OPR:

She understood that the Bullet Points were drafted to give the CIA OIG a summary of OLC’s advice to the CIA about the legality of the detention and interrogation program. [Koester] understood that the CIA OIG had indicated to CTC[redacted] that it might evaluate the legality of the program in connection with its investigation, and that the Bullet Points were intended to demonstrate that OLC had already weighed in on the subject.

That is, this was CIA’s own summary of the legal guidelines that governed its interrogation program, the guidelines it would use to analyze the facts on things like Rahman’s death before reporting those facts to DOJ.

The rest of the OPR Report makes it clear that John Yoo and Jennifer Koester were freelancing when they worked on this document with CIA. The document was never signed, nor did it ever appear on OLC stationary. The CIA would eventually claim that, “It was drafted in substantial part by Mr. Yoo and [Koester] and was approved verbatim. It reflects the joint conclusion of the CIA Office of General Counsel and the DoJ Office of Legal Counsel.” But Yoo, when Jack Goldsmith asked him about the document when CIA was trying to use it to avoid criminal referrals coming out of the CIA IG Report, would argue that, “to the extent [the Legal Principles/Bullet Points] 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 ‘OLC did not generate the Bullet Points, and that, at most, OLC provided summaries of the legal views that were already in other OLC opinions.'”

Whatever the official status of the document, on April 28, 2003, CIA sent Yoo and Koester a document claiming, among other things, that CIA interrogations were exempt from all but two US criminal laws.

The United States is at war with al-Qa’ida. Accordingly, US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.

[snip]

CIA interrogations of foreign nationals are not within the “special maritime or territorial jurisdiction” of the United States where the interrogation takes place on foreign territory in buildings that are not owned or leased or under the legal jurisdiction of the US government. [my emphasis]

In what appears to be her response (the typeface of the second version of this document is one used by DOJ, not CIA, and the original fax itself was only 3-pages long), Koester tweaked the description of detainee interrogations as immune from almost all law this way:

CIA interrogations of foreign nationals are not within the “special maritime and territorial jurisdiction of the United States where the interrogation occurs on foreign territory in buildings that are not owned or leased by or under the legal jurisdiction of the U.S. government. The criminal laws applicable to the special maritime and territorial jurisdiction therefore do not apply to such interrogations. Additionally CIA interrogations of foreign nationals are not within the sovereign territory of the United States. Thus, the federal criminal laws that apply within that territory do not apply to these interrogations. The only two federal criminal statutes that might apply to these interrogations are: The War Crimes Statute, 18 USC 2441, the prohibition against torture, 18 USC 2340-2340A. [my emphasis]

Assuming I’m right about the drafting history, Koester appears to have taken out a paragraph claiming certain techniques “and … comparable, approved techniques” violate neither criminal statute nor the Constitution. But that section was put back in the document before June 16, 2003, when CTC faxed the “final legal summary” to Patrick Philbin as a fait accompli after Yoo’s departure. Both the section claiming a set of techniques “and comparable, approved techniques” were authorized, and the paragraph stating that only two laws applied to CIA interrogations, remained in the document when Scott Muller tried to get Jack Goldsmith to “reaffirm” it on March 2, 2004. Presumably, then, Muller had asserted those two claims when he and George Tenet briefed–among others–Dick Cheney, Condi Rice, Alberto Gonzales, and John Ashcroft seven months earlier on July 29, 2003, when the Principals reapproved the program. While Patrick Philbin and Jack Goldsmith disputed the Legal Principles/Bullet Points document, CIA nevertheless claimed that it governed its interrogation program.

In other words, when DOJ learned of Gul Rahman’s death, they told CIA to investigate it and report back. CIA did so and wrote a declination memo that appears to have been used as the basis for DOJ’s own review of the death. But when CIA wrote the memo, it was operating under the claim–one that the Principals had presumably accepted on July 29, 2003–that not only could CIA use the techniques approved for use on Abu Zubadaydah with other detainees, but that the only two laws that governed the use of such techniques were the Torture Statute and the War Crimes Statute.

So there’s a reason why Gul Rahman’s killer wasn’t charged with negligent homicide. The declination memo used to analyze the death worked under the claim that such laws didn’t apply.

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.

95 replies
  1. Jeff Kaye says:

    Only two laws… as they interpret those two laws, of course. They sprinkled get-out-of-jail cards wherever they went.

    Also, re War Crimes, note how they keep saying that Al Qaeda doesn’t have to be treated as POWs, and therefore can’t violate the War Crimes Act which is based on Geneva. But the War Crimes Act specifically mentioned violations of Common Article 3, which meant also convention covering civilians and anyone held in custody.

    • emptywheel says:

      Yup, get out of jail piled on top of get out of jail free card.

      I’m particularly interested in the claim that any other laws don’t apply. It’s not in the Bybee Memo, but I presume it reflects a bigger principle of law of war they’re invoking, ignoring of course that once you invoke a princinple of law of war, you’re back to Geneva.

      • Jeff Kaye says:

        Yeah, what about that? Were they simply blowing that out of their arses? Or is there some source for that? — Attorneys? Can you help us here?

        • emptywheel says:

          Bmaz and I were just trying to figure it out.

          It couldn’t have been that effective, because David Passaro, who killed an Afghan detainee on June 21, 2003, was charged for it on Junr 13, 2004. The biggest difference between Passaro and the guy who killed Rahman, it seems to me, is that the latter was CIA, the former a contractor. And, that the latter occurred while Goldsmith was at OLC.

          • bmaz says:

            I have been looking at the indictment on Passaro, and it sure appears to me, especially when viewed in conjunction with that against Andrew Warren, lends itself to availability for the Salt Pit. There are still a couple of nagging questions I have (this is also what I was referring to late last night for those that were around), but I am getting close……

            • emptywheel says:

              Btw, one more detail on timing.

              Goldsmith definitively rejected the Legal Principles document on June 10, 2004. Passaro was charged on June 17, 2004.

              The declination for Gul Rahman had to have happened before that, bc it was referenced in the IG Report. So the Legal Principles were still “in place” when Rahman’s killed was not prosecuted, but not when Passaro was charged. (Also note, the language from Yoo, implying that the LP/BP doc was being applied to a set of facts, which sure sounds like a charging document.)

            • Mary says:

              and some other comments too

              One thing that we don’t have lots of good information about, and which Koester and Yoo seem not to want to dwell on, is the status of the CIA/US Gov/torture sites.

              Koester and Yoo seem to want to just say as a given that the torture is taking place “somewhere” and that “somewhere” is not a place the US is leasing, owning, or controlling (and they also just assume that if the US is torturing someone, then that someone must be “al-qaeda” with whom we are “at war”).

              That (the lack of US control of its torture sites), of course, flies in the face of common sense . But it also seems to be distinctly negated by at least the Lithuanian Riding School story reported here

              http://abcnews.go.com/Blotter/cia-secret-prison-found/story?id=9115978

              The CIA built one of its secret European prisons inside an exclusive riding academy outside Vilnius, Lithuania, a current Lithuanian government official and a former U.S. intelligence official told ABC News this week.

              Lithuanian officials provided ABC News with the documents of what they called a CIA front company, Elite, LLC, which purchased the property and built the “black site” in 2004.

              So I think even if they tried to claim that Warren was commiting his assualts in his rooms or other places paid for directly or indirectly by the US Gov as a kind of a distinction, that would have to fail.

              EW – don’t limit yourself on negligent homicide – I don’t do crim work and definitely not fed crim work, but I have to believe that reckless disregard and/or depraved indifference killings might be possibilities as well. And DOJ steered clear from tackling the “shock the conscience” issue on this one as well. Also note how Koester clings to the framing that somehow interrogation was going on while a man was left out to freeze to death.

              The only two federal criminal statutes that might apply to these interrogations

              The way Koester changes language around, too, on the description of Gul Rahman (sp?) makes you have to question just how much OLC did know about the guys being tortured. We know GR was not a member of al-Qaeda – rather, he was a buddy of Hekmatyar (who didn’t love the US, but at the time of the killing of GR was still a guy who had been tossed out of Afghanistan by the Taliban, not a force allied with the Taliban or AQ – although soon after the GR killing he became more willing to work with AQ)

              CIA sends Yoo and Koester a memo about what CIA is authorized to do to al-Qaeda detainees. Koester swaps over from that narrow category to a much broader descriptive phrase. She goes from “al-Qa’ida detainees” to the very very broad, “foreign nationals.” So while something like Bybee 2 supposedly relies on the fact that a detainee is a high operational valude al-Qaeda detainee, Koester’s definition she passes off involves CIA handling of “foreign nationals.”

              @15 – I thought maybe he was talking about interrogations like al-Jamadi, that were arguably in a battlefield context and where CIA was acting more directly with military or as paramilitary. ?

              It’s incredible that no one at DOJ even began to raise issues of CIA recusal on the investigation or of CIA atty recusal on writing the declinations or of recusals of DOJ lawyers who had been involved in the torture briefings early on from making the decisions on how the investigation should be handled. OTOH, this is another element of why I hated the narrow OPR investigation approach and waiting for it all, when there was so much other, much more clear and easy to argue, breaches of professional conduct and possibly criminal activity. Oh well

              @30 – that’s why the Bates'(I think it was Bates – maybe Leon?) Bagram decision almost forces a revisit as well. But I do think that not only situs, but also the fact that Afghan personnel were apparently used for the torture killing to actually do the tieing and dousing etc., were probably highlighted as issues.

              Rasul (decided in 2004), really framing the Sup Ct’s willingness to overturn the Eisentrager footnote, should have been rocking worlds at DOJ. And it should have brought about a revisit of the whole concept of extraterritoriality and the collapse of US law. Especially given that the Eisentrager premise had been a fully declared war on an entity against whom war could be declared. Something we still don’t have in Bush/Obama Wars.

              @31 – One of the intial stories – I think maybe one of Priest’s – indicated that CIA said it briefed Congress right after the killing about the killing. When the CIA briefing schedules were coming out this is something I was really wondering about in the comments, bc I didn’t see anything that looked like a timely briefing to the gang of 8, much less the intel committees, or even to parts of the gang of 8, on this. IIRC, for that matter, Hastert never did get any briefing on anything torture related, did he? I wish I could remember – I do remember thinking that the briefing schedules made the story about Congress being briefed about the killing *questionable* and I kept wanting someone in the press to ask (even if they wouldn’t get an answer) Pelosi and Goss and Harman and Roberts and Hoekstra etc. if they recall being briefed about a non-al-Qaeda young man being frozen to death.

              Not that there would have been any good and open answers, but sometimes you need to change the framing from, “were you told about al-Qaeda terrorists getting harsh interrogation” to “were you told about the torture killing of a non-al-Qaeda man at the Salt Pit, as reported on xyz, which report also indicated that the CIA had “briefed Congress” and do you know if those briefings were to all of Congress or even to all of the intel committees or even to all of the Gang of 8?

              Oh well. I do think Passaro is going to make it hard to argue that the mere fact of a battlefield site that was under CPA authority and not US sovereignty did not end up as a get out of jail free card.

              • emptywheel says:

                Remember that a lot of the documents we still don’t have, particularly in the OIG documents I discussed the other day, pretty obviously discuss prison characteristics. So it may be something they debated over, and I may be that it changed after Rasul. Which one of the decisions was it that scared them enough that they withdrew CIA prisoners, including Abu Zubaydah, from Gitmo?

                • Mary says:

                  Hamdan – combined with Rasul imo, but Hamdan was definitely the trigger.

                  For anyone else reading and scratching their head, Hamdan, among other things (relating to military commissions) held that Common Article 3 of the Geneva Conventions applied to even al-Qaeda detainees.

                  The 4 Geneva Conventions cover 1 – sick/wounded soldiers on land during war, 2 – s/w soldiers at sea during war, 3 – pows, 4- others including civilians.

                  Each Convention has numerous Articles, but all have the very same Article 3, which is why it is called Common Article 3.

                  Common Article 3 includes, in part, the following:

                  …the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

                  (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

                  (b) taking of hostages;

                  (c) outrages upon personal dignity, in particular humiliating and degrading treatment;

                  (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

                  (2) The wounded and sick shall be collected and cared for.

                  So some things that had been standard operating procedures during the GWOT – taking hostages, cruel treatment and torture, humilating and degrading treatment, manipulating rather than caring for wounds and sickness to maximize pain for interrogation, etc. were now applicable.

                  OTOH, we now see the Obama admin pusing, not only to ignore all common article 3 violations by the Bush (and now Obama – with drone and special op killins of civilians etc.) but also to institute a whole program of commissions being implement expressly for the purpose of evading responsbility to comply with the Common Article 3 requirement for a regularly constituted court providing judicial guarantees like, oh, say, not torturin prisioners for convictions.

                  • klynn says:

                    A quote for you…

                    The Geneva Conventions and their Additional Protocols did not anticipate
                    September 11 or al-Qaeda. And yet, the balance struck between humanitarian
                    law and other legal regimes is probably more valid today than ever before. Civil rights, judicial guarantees, human rights, and the rule of law are not impediments to human security. They are, in fact, the ultimate repositories of it. Humanitarian law, in particular, is a bulwark of human security in times of armed conflict, but only if invoked where it properly belongs and obeyed where properly invoked.

                    -Gabor Rona

                  • bmaz says:

                    Yeah, Rasul is a very interesting case, but because of its limited scope and nature, would be secondary. While you are right about Hamdan’s primary role, I think Hamdi, if for no other reason than Scalia’s dissent, had to scare them more than a little too.

                    • Mary says:

                      Oh yeah- their underpinnings were a)Ex Parte Quirin; b) the Eisentrager footnote; c) corruption of police powers to charge for discussions of “classified” crimes (including in judicial proceedings – remember the secret law case?); d)claimed authority to set up lawless commissions; e) corruption of presidential powers to interpret treaties; and f) corruption of DOJ, in part via OLC opinions but even more so via lies to courts and Congress.

                      I think Scalia’s dissent in Hamdi did much more to check them than anything done by Democrats over the last 8+ years, includin by Obama as President.

                      Rasul was really important bc it was the initial chip on their foundation. You could try to do something about almost everything else, but if you still had an Eisentrager restriction on jurisdiction of the courts, you’d be sunk. OTOH, Rasul didn’t hit their “forever detention” and commissions blocks – and, for that matter, O’Connor’s horrible mealy mouthed decision in Hamdan didn’t do all that much either – stating that “war is not a blank check” while you do nothing, well, it’s not all that much. But to see Scalia say that he would even walk back Quirin and to see him criticize the rest of the court for not being willing to do face to face battle with the President on habeas (for US citizens only, though) had to shake them some.

                      State secrets and classificiation assertions for crimes is the primary foundational aspect that hasn’t taken many hits, while Congress enacting statutory blessings to the Presidential usurpation of the power to commit crime with impunity and make Congress complicit has been tamped in to replace some of the collapsed stones.

                      I also think that Scalia’s opinion in Hamdi sealed the deal on Alito, rather than Lutig, getting the nod. I think they were really scared after Scalia’s opinion about Padilla and they couldn’t afford to appoint to the Sup Ct a judge who’d have to recuse as that one came up.

              • emptywheel says:

                You might take a look at the beginning of the DOJ IG Report. THere’s a discussion of the MOUs that DOJ has with DOD and CIA on criminal issues. It provides an explanation–but not a satisfactory one–for why those recusals don’t happen.

              • emptywheel says:

                As you’ve probably seen, here’s what I know of hte briefing schedule:

                1) I asked Bob Graham personally, and he said he had heard nothing about Salt Pit before he left.

                2) The Roberts briefing MOU shows pretty definitively (there is one long redaction but contextually it doesn’t appear to be Salt Pit) that they didn’t brief him at least in February 2003. Based on that, I think it safe to assume they didn’t brief Goss/Harman on it, not least bc Harman was immediately critical of this program.

                3) We don’t know about the September 2003 briefing at all.

                4) We know that they discuss deaths in the July 2004 (IG REport) breifing, saying they’ve already told COngress about the deaths.

                5) The list of congressional notifications has one entry on reading “Death of Detainee in Afghanistan” on June 27, 2003. But it is classified only Secret. Given that it is six days after the Passaro killing, I suspect that pertains to that death, not GR’s death.

                6) THere is a briefing of SAC/DEF staffers after the IG Report. It focuses on al-Jamadi and Mouwhoush, and gives the date when Congresss was informed about them (both January 29, 2004).

                Which does seem to leave off GR, unless they said something in September 2003.

            • arlopear says:

              Apologies if this has been covered, but it seems the distinction with Passaro is that his conduct occurred on a military base over which the US asserts jurisdiction, whereas Rahman was killed at a CIA site that the US asserts was an Afghan facility (and not within the territorial jurisdiction of the US). What do we know about the nature of the CIA-Afghan agreement or other facts surrounding establishment and operation of the Salt Pit? I understand that perimeter guards were Afghan, but were there other host-nation officials involved (are they referred to in any documents?) Any help on this would be greatly appreciated, and seems of legal significance.

      • JasonLeopold says:

        This McClatchy story cites a letter Carl Levin wrote to CIA back in 2005 alleging the CIA was responsible for at least five deaths (including the Passaro) case and the article notes that the deaths “took place under wartime conditions, not in the CIA’s once-secret program for interrogating top al Qaida suspects by using techniques such as waterboarding, or simulated drowning.”

        Not sure if that is the reason other laws didn’t apply, as you pointed out.

        • emptywheel says:

          Remember they seem to have distinguished the HVD program from the more general interrogation program. And all the deaths happened in the more general program. I wonder if that’s part of the distinction Levin was making?

          • JasonLeopold says:

            I haven’t seen the full letter posted anywhere and not sure if it ever was. But I’m curious about the distinction.

            Also, this is from a WaPo story back in 2005. I didn’t see this issue raised in the AP story as it related to prosecutorial decisions, but was it discussed previously, after the IG report was issued, as one of the alleged reasons charges weren’t pursued? Would the sources here sound like DOJ?

            In spring 2004, when the CIA first referred the Salt Pit case to the Justice Department for possible prosecution, the department cited the prison’s status as a foreign facility, outside the jurisdiction of the U.S. government, as one reason for declining to prosecute, U.S. government officials aware of the decision said.

            Shortly after the death, the CIA briefed the chairmen and vice chairmen of the House and Senate intelligence committees, the only four people in Congress whom the CIA has decided to routinely brief on detainee and interrogation issues. But, one official said, the briefing was not complete.

            Also, at the time this story was published it said prosecutors were taking a second look at Rahman’s death. So is Durham’s “review” now the third look at the same case?

            • JasonLeopold says:

              Also, that same story quoted one unnamed govt official saying Rahman “was probably associated with people who were associated with al Qaeda,” which seems to be thrown in as a way of explaining this from your post:

              “US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.

              The story also says they never established one way or another his connection to al-Qaeda

                • WilliamOckham says:

                  This is where my babysitting gig is relevant to the discussion at hand. The baby’s father has relatives in Pakistan and shares a name with a GITMO detainee (and an African billionaire and an Egyptian footballer (soccer player) and one of a set of conjoined twins, etc.) Sure, it’s a very common name, but just ask Khaled el-Masri if that matters.

                  Anyway, does that make me an associate of an al Qaeda associate? That whole theory is just a carte blanche to the executive branch to use extrajudicial killings against anybody they want.

                • bobschacht says:

                  So, are we back to “guilt by association” yet? ISTM this gig was played extensively by Sen. Joe McCarthy a few decades back.

                  Bob in AZ

              • emptywheel says:

                The whole article seems like a rebuttal made to the Legal Principles document.

                First, if CIA could only act law-free against people in al Qaeda (remember, he was most closely tied to Hekmatyar, but that was in the past, at a time when we had our own business with Hekmatyar).

                Then, here’s the full quote on jurisdiction:

                The CIA wanted the Salt Pit to be a “host-nation facility,” an Afghan prison with Afghan guards. Its designation as an Afghan facility was intended to give U.S. personnel some insulation from actions taken by Afghan guards inside, a tactic used in secret CIA prisons in other countries, former and current CIA officials said.

                The CIA, however, paid the entire cost of maintaining the facility, including the electricity, food and salaries for the guards, who were all vetted by agency personnel. The CIA also decided who would be kept inside, including some “high-value targets,” senior al Qaeda leaders in transit to other, more secure secret CIA prisons.

                “We financed it, but it was an Afghan deal,” one U.S. intelligence officer said.

                In spring 2004, when the CIA first referred the Salt Pit case to the Justice Department for possible prosecution, the department cited the prison’s status as a foreign facility, outside the jurisdiction of the U.S. government, as one reason for declining to prosecute, U.S. government officials aware of the decision said.

                The argument made above about the exemption from all law is dependent on jurisdiction. This is saying that they made sure not to “own” the salt pit precisely so they could avoid any repercussions for actions take in it.

                Don’t know if that’s the distinction w/Passaro–but the Passaro indictment says he was on Asadabad base, suggesting full US jurisdiction.

                • burnt says:

                  Okay, the quotation in your comment at 30 combined with the following quotation from your post:

                  CIA interrogations of foreign nationals are not within the “special maritime or territorial jurisdiction” of the United States where the interrogation takes place on foreign territory in buildings that are not owned or leased or under the legal jurisdiction of the US government.

                  explains to me why the DOJ can decline to prosecute and why the CIA and White House can dance around with their multiple get out of jail free cards. However, it’s transparently baloney.

                  The analogy that comes to mind are the tests the IRS uses to determine if a person is an independent contractor or an employee of a company.

                  In the case of the Salt Pit we have a facility that was financed entirely by the CIA. The guards were vetted by the CIA. The CIA determined who would be imprisoned there. They had Afghan guards guarding US–not Afghani detainees. In addition, the man in charge was not an Afghan. He’s a US citizen (and yes, your cover is blown so I hope the agency has seen fit to supply you with a new passport or flown your sorry ass home).

                  How could one claim the Salt Pit was not a US facility? Or, if one could plausibly make that claim how could one claim the Salt Pit prisoners were not is US custody (I’m assuming we have some minimal obligations to people with whom we have a custodial relationship)?

                  • burnt says:

                    As a system FDL’s commenting is way better than Echo or Hellscan (sic). Still, I really did try to get that “supply you with or new” fixed and “prisoners were not is US custody” fixed and the system told me to get lost. Grrr…

                    • PJEvans says:

                      You get about five minutes to edit your comment, after which it’s frozen. It’s the notorious ‘preview is my friend’ bug, where you don’t see the tipyui until too late.

                  • Rayne says:

                    I think there’s another important issue here with regard to control or jurisdiction of a facility.

                    Did the Afghans independently set this site up and offer it for U.S. military use? Or did the Afghans get told by the U.S. that the U.S. was going to use the facility and that Afghans were going to guard it?

                    If the Afghans had no choice in the matter, it’s like your analogy of independent contractors. Employees get directions; contractors get requests for deliverables. I think as an occupied nation the Afghans got directions, and construing this as anything else is a construct for the purposes of obstruction.

                  • bmaz says:

                    I have been trying to get to the root of the Special Maritime and Territorial Jurisdiction issue for a couple of days, but have not had sufficient time or the right research resources at hand to do so. It does appear to me that the DOJ uses it pretty selectively as to whether it does or does not apply across a spectrum of different situations. I also, prohibitively at least, would be pretty willing to argue that paying the rent, vetting the guards and running the place is enough, especially if any disconnection was intentional to avoid criminal liability – which appears to darn near be admitted – for jurisdiction to attach. But there are a lot of moving parts and I am not sure yet.

                    • skdadl says:

                      Ah. I’ve got to go back and read a summary of Boumediene, then — that was going to be one of my questions.

                      I hope everyone is having a good Easter weekend. I was a little bothered by Obama’s Easter message (war is good for our spirituality and unity?), but I guess we can’t be surprised.

                    • emptywheel says:

                      I should restate that. BOumediene says GItmo is US. It says nothing on Bagram, which has led the Constitutional Law professor President to proceed as if Bagram is not US.

                    • Mary says:

                      I don’t think you can say that Boumediene stands for the proposition that there’s no jurisdiction in Bagram. Bagram is very factually different from GITMO and I don’t think that case law for one applies easily for the other, but I don’t think Boumediene tackles head on the issue of what kind of jurisdiction exists at Bagram. Some cases like Amir Meshal’s or will flesh that out, and Munaf v. Green, while ultimately a bad outcome for the plaintiff re: the turnover to Afghan authorities, has some interesting judicial assertions re: habeas jurisdiction for US bases. Donald Vance’s civil suit, which just recently survived a motion to dismiss at the Dist Ct level, will also flesh some of this out.

                      One of the important parts of the analysis for the Salt Pit, imo, is that it was apparently being used at least in part as a repository for people captured or kidnapped outside of Afghanistan. Gul Rahman was taken by US and Pakistani forces in Islamabad, Pakistan. The US then exercised custody over him by transferring him out of Islamabad. International jurisdiction isn’t something I know anything about, but if the US is asserting national (US CIA, not CPA) custody over someone, then I have to think that the custodial element is going to have an impact on a claim that there’s no US jurisdiction over US employees exercising US custody over a foreign national. fwiw

                      Presumably, the US was enforcing its custody over Rahman at all points of his transport to the Salt Pit and thereafter. Also, as we’ve discussed here before and under the then existant version of the War Crimes Act, the transfer of Rahman itself was very possibly a crime under the War Crimes Act – something no one seems to be touching at DOJ or CIA. Depsite Goldsmith later trying (or being tricked into) giving a kind of thumbs up to the concept of “temporary” violations of the GC prohibitions on transport, the War Crimes Act WAS (it has been changed by the MCA) pretty clear, as were the GCs.

                      Under the War Crimes Act, it WAS a crime to commit a severe breach of the GCs and under the GCs themselves, the transport of a protected person from one country to another is prohibited and a violation of that prohibition is internally defined in the GCs as being a grave breach. Rahman was an Afghan, I think (?), but was in Pakistan and was not a member of al-Qaeda. He was taken from Pakistan into a battle theatre in another country. He was not merely questioned in Pakistan or rendered to the US judicial system and he wasn’t even transported to Bagram. Instead, he was transported out of country to the Salt Pit, which doesn’t seem to have had any government function other than to serve as a torture chambers. So the intent related to his transport would have been an intent to transport for the purpose of committing assaults upon him and enforcing an imprisonment without trial status.

                      All fwiw

            • emptywheel says:

              Fourth, maybe.

              The AP story said that Paul McNulty (ED VA USA 2001-2005) and Chuck Rosenberg (ED VA USA 2006-2009) both reviewed it. So if they were on a second look in 2004, then they were on a third under Rosenberg.

              Though I also wonder whether they’re talking about the review that Dusty Foggo did at this time. Of course, with the added bonus that he could get his girlfriend hired into OGC at CIA if he was nice.

              • JasonLeopold says:

                Checked w/DOJ. They confirmed that it is the fourth time this case is being reviewed (they used the word “reviewed” by the way), as you stated.

                  • JasonLeopold says:

                    Yeah. I only thought about what she said about 10 minutes later. I should probably follow up for clarification. But I would think that if it were investigated previously that would be the word to use no?

                    • bmaz says:

                      You never really know on really sensitive cases like this, or at least I don’t, what the behind the scenes story is; so who knows? But, that said, it sure strikes me that, at least as to the DOJ, there has never been squat of formal investigation; it has always (and still is) review of prepackaged sandpapered submissions and information from the agency and IG.

                    • JasonLeopold says:

                      I agree with you. Looking at some of the very early stories it seems that there wasn’t an investigation at all when it was first handed to DOJ (an second and third time too) as many of the reports indicate that the response from DOJ had to do with the jurisdiction issue in explaining why a criminal probe wasn’t launched. I’m not sure about the later inquiries, and I may be reading the stories incorrectly, but it does not appear that DOJ decided not to prosecute due to lack of evidence or witnesses because they never launched a real investigation to begin with. I’m sure I must be missing something here.

                    • bmaz says:

                      Yeah, I dunno that you are missing anything. Furthermore, and again I am still talking to people and trying to get a better grip on the special Maritime and Territorial jurisdiction provision – it is 18 USC 7 by the way – but my analysis so far is that the self serving CIA conclusion that it is an Afghan facility is beyond bogus. First off they appear to focus on “leased or owned” and that is NOT the statute language. Here is the germane language from 18 USC 7(9):

                      With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act—

                      (A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and

                      (B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.

                      If the Salt Pit does not fall under the statute, it has got to be from some judicial decision I have not yet been able to find (and trust me I have looked), because the clear wording of the provisions would seem to include it. The “irrespective of ownership” seems particularly telling…..

                      And I agree with the inference you made on the DOJ decision being made on what they viewed as probably an easy out of jurisdiction; but I simply think it is a false out. Similarly, I think all the work you, Marcy and all have been doing on blowing up the BS on the torture statute applicability, not to mention that, once again with my hobby horse, intent is for the jury to determine there is no preclusion to charging, lends itself to that jurisdiction being quite available to the DOJ as well. Heck, I am not even sure in the least that war crimes statutes don’t apply; I tend to think they do. All these modalities are intended to function in a complimentary fashion; it cannot be that there was this magic place where there is simply no law.

                    • Mary says:

                      I think Munaf v. Green, the 1st half, is helpful as well – finding that US courts have habeas jurisdiction over Americans being held captive overseas by US military forces even in a battleground area like Iraq.

                    • bmaz says:

                      Isn’t Munaf, like Rasul, kind of limited to habeas? Both Rasul and the other civil Rasul case, Rasul v. Myers, seem to make clear that the Court has no issue in separating Habeas jurisdiction from other jurisdiction such as civil or criminal. I just dunno about Munaf…………

                    • JasonLeopold says:

                      Thanks so much bmaz for taking the time to explain this and for all of your great work and insight. I was doing some research last night and found this. It looks the same as what you posted. But it says the Patriot Act amended certain jurisdictional crimes. Something like that, however, wouldn’t apply retroactively in this case though would it?

                      Crimes Committed within the Special Maritime and Territorial Jurisdiction of the United States (18 U.S.C. § 7(9)). The USA PATRIOT Act of 2001, as amended in 2005, expanded the reach of the federal courts to provide jurisdiction for certain crimes committed on lands, buildings, or facilities designated for use by the United States government, such as detention centers. Other sections of the Special Maritime and Territorial Jurisdiction Act (18 U.S.C. § 7) that may be relevant to the rendition to torture abuses give the federal courts jurisdiction over crimes committed on ships controlled by or registered in the United States when on the high seas, and airplanes flying over United States or international airspace, including those under private ownership by nationals of the United States. When a United States national commits assault (18 U.S.C. § 113(a)), maiming (18 U.S.C. § 114), murder (18 U.S.C. § 1111), manslaughter (18 U.S.C. § 1112), kidnapping (18 U.S.C. § 1201), aggravated sexual abuse (18
                      U.S.C. § 2241), or sexual abuse (18 U.S.C. § 2242) within the special maritime and territorial jurisdiction of the United States, that person is subject to prosecution in federal courts. The statutory penalties for assault with intent to commit any felony except murder are a monetary
                      fine and/or up to ten years imprisonment.

                    • bmaz says:

                      Where is that from? The statutes in place at the time should generally control on anything criminal, which this obviously is. But if that is the language after amendment, it still does not seem to preclude what we are discussing. Not sure enough what that is to say though….

                    • JasonLeopold says:

                      also, I did call back DOJ for clarification and they said “review” was the right word choice.

                      In other news:

                      Judge dismisses scores of Guantanamo habeas cases

                      A federal judge has dismissed more than 100 habeas corpus lawsuits filed by former Guantanamo captives, ruling that because the Bush and Obama administrations had transferred them elsewhere, the courts need not decide whether the Pentagon imprisoned them illegally.

                      The ruling dismayed attorneys for some of the detainees who’d hoped any favorable U.S. court findings would help clear their clients of the stigma, travel restrictions and, in some instances, perhaps more jail time that resulted from their stay at Guantanamo.

                      [snip]

                      Moreover, he added, CCR affiliated attorneys have tracked former captives to prison at Pol-i-charki, Afghanistan, that was once run by the U.S. military. He said “the U.S. may be pulling the puppet strings” of their continued captivity.

                    • bmaz says:

                      Disappointing, but not surprising. District courts are literally inundated with habeas petitions constantly, and that is before and without Gitmo/war on terror petitions. The default is to look for a way to dismiss; they found one here.

  2. PJEvans says:

    It reads like a kiddy cartoon:
    ‘Hey, dog, I hear some chickens died last night!’
    ‘Yep. Fox got into the coop.’
    ‘Ask the fox how the chickens died, willya?’
    ‘Yep.’

    • Loo Hoo. says:

      And as long as the coop is not in a specific location, biting, chasing and egg eating is okay. Check it out for us and get back with the details.

  3. readerOfTeaLeaves says:

    The rest of the OPR Report makes it clear that John Yoo and Jennifer Koester were freelancing when they worked on this document with CIA. The document was never signed, nor did it ever appear on OLC stationary. The CIA would eventually claim that, “It was drafted in substantial part by Mr. Yoo and [Koester] and was approved verbatim. It reflects the joint conclusion of the CIA Office of General Counsel and the DoJ Office of Legal Counsel.” But Yoo, when Jack Goldsmith asked him about the document… would argue that, “to the extent [the Legal Principles/Bullet Points] may have been used to apply the law… they [meaning ‘the Legal Principles/Bullet Points] did not constitute the official views of OLC. Yoo stated that ‘OLC did not generate the Bullet Points, and that, at most, OLC provided summaries of the legal views that were already in other OLC opinions.’

    …So there’s a reason why Gul Rahman’s killer wasn’t charged with negligent homicide. The declination memo used to analyze the death worked under the claim that such laws didn’t apply.

    Unsigned documents.
    Bullet points that didn’t ‘reflect the official views’ of OLC.
    Legal work approved ‘verbatim’.

    Have I completely lost my mind?

    Berkeley Law School is paying professor salary to a guy who approved legal work verbatim, failed to sign documents, didn’t ensure that bullet points reflected the ‘official views’ of his own legal agency, and basically freelanced to claim that laws didn’t apply?

    I must be completely crazy.
    This is too far down the Rabbit Hole for an Easter Sunday.

  4. orionATL says:

    readeroftealeaves @8

    no. you haven’t lost your mind.

    you’re just in an alternate world.

    have heart. keep going.

    just around the next bend in the tunnel

    you’ll meet the queen of hearts*

    then you will understand what absolute power does to create that world that’s messing with your mind.

    but be polite, lad,

    she’s got a nasty temper, she ‘as

    if you don’t agree with her.

    *she goes by the name “george” among her intimates, but i
    ain’t advisin’ you call her other than “your highness”.

  5. WilliamOckham says:

    WTF? If I get charged with a federal crime, can my lawyer write a declination of prosecution? That’s what happened here when the CTC wrote a declination.

    I’m pretty sure we can attach a name to the “some lawyer at CIA’s CTC” who wrote it. That would be our old friend Jonathan “if they die you’re doing it wrong” Fredman. Here’s why I think that. In Bybee’s response (p 28), he cites Fredman’s memo to the AZ interrogation team giving a “correct summary of the specific intent law”. [Fredman’s name is blacked out there, but not on the second line of p 29] That means that Fredman gave specific intent advice to the CIA’s first torture team and then went to GITMO to dispense advice there. So, who do you think the CIA would trust to write this specific intent excuse for Gul Rahman’s torturer?

    • emptywheel says:

      Yeah, I think Fredman is the guy, probably. Note, too, that the LP/BP doc was sent to Pat Philbin from CTC.

      Not sure if you saw this post, but that Fredman memo to the Zubaydah torturers was almost certainly the cable sent out in lieu of the Bybee Memos, which had already been approved. Which is especially neat, since Bybee testified that he knew of no written advice before teh Bybee Memos, implying he didn’t know about that July 13 fax, either.

      • WilliamOckham says:

        I’m now reading that post as if for the first time (just had to throw that in for old time’s sake). I’m sure I saw that post on Monday, but it’s been a very busy week for me at work and home (including babysitting a four month old whose mom is in the hospital).

          • earlofhuntingdon says:

            That’s so 1950’s. These days, when a parent minds his or her own child, it’s called parenting. When someone else does it, it’s called child minding or baby sitting.

            • WilliamOckham says:

              In this case, definitely not my child. Just allowing the dad to spend time at the hospital with the mom.

    • emptywheel says:

      Oh, and not just write the declination of prosecution, but also help write the “legal principles” that would apply to the murder you committed. With the help of trustworthy lawyers like Yoo and Koester.

      • WilliamOckham says:

        Yeah, he’s the real go-to guy for ex post facto justification of murder and mayhem.

        • emptywheel says:

          Thing that’s really infuriating is he lasted at least the first few months of the Obama admin over at DNI. Even after his “If the detainee dies, you’re doing it wrong” became public. Not to mention his efforts to carve out space to exempt CIA from GC entirely.

  6. emptywheel says:

    One more thing, on briefings, here’s what we know.

    The February 2003 briefing of Roberts appears to have no mention of Rahman. Indeed, the IG review is introduced, but only in context of Nashiri and Zubaydah (though there is one redacted paragraph which could mention it, but from the context doesn’t appear to; btw, from the passage from the OPR above, I suspect they didn’t mention Rahman at the briefing w/Chertoff, which is why Rizzo says Chertoff didn’t seem interested in it).

    The list of COngressional notifications doesn’t include anything that could be related until June 27, 2003 (though that could also be the Passaro killing). And then the July 2004 briefing–which went through the IG Report and therefore must include Rahman–does have a paragraph where they must talk about it. But that’s a year and a half later.

    Remember that Graham never learned about it when he was there either.

    • emptywheel says:

      One more point. This appears in the briefing for the IG REport (which was GOss/Harman):

      The IG indicated that all deaths were communicated to the two committees.

      He’s telling this to the two people who genuinely WERE briefed through the time they were in ranking position. But we have no evidence of them being briefed (unless the June 2003 notification was when they got told), and we’re only missing one briefing on torture.

      • emptywheel says:

        Correction. We’re only missing one briefing, assuming that goss and Harman got basically the same briefing as Roberts in February 2003. Which I’d guess is likely, if they even got that much, since Roberts was busy telling them there were 10 reasons not to do oversight, while Harman was telling them not to destroy the torture tapes. I’m guessing they would tell the one Dem they briefed–the only one briefed that we were in the torture business–less than they would tell Roberts.

  7. orionATL says:

    wo @ 33

    you and your family are doing much good in the quiet, caring way that once was the foundation of american society.

  8. MadDog says:

    Sorry to comment and run, but I’m bushed from the Easter holiday.

    Anyways, to compliment EW’s fine work again, I thought I’d link to this NYT article out tonight – or as Yogi Berra put it: “This is like deja vu all over again”:

    U.S. Admits Role in February Killing of Afghan Women

    After initially denying involvement or any cover-up in the deaths of three Afghan women during a badly bungled American Special Operations assault in February, the American-led military command in Kabul admitted late on Sunday that its forces had, in fact, killed the women during the nighttime raid.

    The admission immediately raised questions about what really happened during the Feb. 12 operation — and what falsehoods followed — including a new report that Special Operations forces dug bullets out of the bodies of the women to hide the true nature of their deaths…

    • Mary says:

      Prior to this admission, this killing had been reported on by Jerome Starkey and was the subject of this Seminal diary
      http://seminal.firedoglake.com/diary/37627
      from March 26.

      Starkey had also reported on the killings of schoolchildren that were at first called insurgents and later admitted to be “mistakes” as well.
      http://www.timesonline.co.uk/tol/news/world/afghanistan/article7040166.ece

      Some context that the Times ignores is that Starkey had already been reporting on this since early March AND that the ISAF issued this release:
      http://www.isaf.nato.int/en/article/isaf-releases/isaf-rejects-cover-up-allegation.html
      on March 13, basically calling Starkey a liar.

      The allegation made by Times UK reporter Jerome Starkey that NATO “covered up” an incident that was conducted outside Gardez in Paktia province is categorically false.

      So now we have the Times story, that not only were the women killed by special forces, but that special forces dug out the bullets from the pregnant womens bodies, washed down walls and doused the wounds with alcohol, all before floating the story that the women had been found by the special forces, bound and gagged and stabbed to death.

      Put that with the ISAF March 13 story, accusing Starkey of lying and making the really interesting statement that “You don’t have to be fired upon to fire back”” as the excuse for saying that forces were firing back, even when they hadn’t been fired on.

      Starkey also reported that the Special Forces prevented anyone at the scene from recieving medical attention and that’s how one of the women and one of the men died – they bled out slowly over time.

      But all in all, the good news is that despite the body mutiliations and destruction of evidence, the “investigation” findings were that the women were merely “accidentally” killed while forces were firing at the men(also – although not discussed much in the NYT story, accidentally -since they were operating under bad intel and there was no reason to kill the men).

  9. klynn says:

    I linked to a paper by Gabor Rona in the Issues That Arose post. Gabor is the legal advisor in the legal dept of the ICRC. The paper is a worthwhile read. Especially with the comments here.

  10. VJBinCT says:

    “he did not have the specific intent”

    But you can still indict someone for reckless endangerment. There is also the term ‘depraved indifference’ one hears from prosecutors in many murder trials. Such persons should be handed over to the Afghan widows and orphans for trial and swift justice.

    • bmaz says:

      Reckless endangerment is a state law charge as opposed to federal and is not particularly available in this situation.

  11. emptywheel says:

    Btw, one more point on the Salt Pit nationality question.

    There were rumors, which I know the AP reporter couldn’t confirm at all, that the two guys who watered down and left GR were contractors, not Afghans. Obviously that would change things radically on many levels, but like I said, the AP team on this hasn’t been able to verify that at all.

  12. klynn says:

    EW, here is a partial review of Yuval Ginbar’s book Why Not Torture Terrorists: Moral Practical and Legal Aspects of the Ticking Time Bomb Justification of Torture.

    I realize I have linked to this in the past, but it is a good resource on critically discussing the legal mindset of Yoo and the not-so-legal arguments for torture.

    Between publications by Gabor Rona and Yuval Ginbar, you might appreciate some of the legal insight by both. Not to mention they would be great resources or salons.

    Your interview on Virtually Speaking was a great listen. You have a gift of taking the weeds here and translating them into understandable live commentary.

    I’ve posted in the past the need for an in-depth interview with you and others on this topic for FDL TV. You would make a great interview.

  13. 1boringoldman says:

    At the risk of stereotyping pretty smart young female christian federalist society lawyers working at the DoJ during the Bush Administration, Jennifer Koester reminds me a lot of Monica Goodling. I wonder if they were pals…

    • emptywheel says:

      I don’t know that Koester was Christian. Moreover, she’s much smarter, I think, than Goodling.

      I do find it striking though that in the bureaucratic chain of command, (rather than in the operational one–see, Beaver, Karpinski, etc), she is one of just two women we know who were involved (COndi being the other). I think one of the CTC lawyers is also a woman, but that’s it.

      • 1boringoldman says:

        John Yoo’s Helper on the Torture Memos
        SLATE

        By Emily Bazelon
        February 22, 2010

        After she worked with Yoo in 2002, Jen clerked for Clarence Thomas — she was his third Yale clerk, according to this list. Then I think she went back to the Justice Department. Now she’s a lawyer at Kirkland & Ellis. In law school, she was hugely involved with the Federalist Society. I remember her as a religious Christian. Also as principled in her beliefs — thoughtful rather than knee-jerk.

        The Torture Memo Author You’ve Never Heard Of
        TPMMuckraker

        by Zachary Roth
        February 22, 2010

        The final OPR report appears not to draw any conclusions about Koester’s performance. But a draft version of the report, released last week along with the final report, finds that “Koester, because of relative inexperience and subordinate position, did not commit misconduct,” but that “she appears to bear initial responsibility for a number of significant errors of scholarship and judgment (p. 188).”

        Those errors don’t appear to have impeded Koester’s career. She left the Justice Deprtment in 2003 to work in the general counsel’s office at the Defense Department, then won a coveted Supreme Court clerkship, working for Clarence Thomas, and did a stint at the Department of Homeland Security, before joining Kirkland.

        The report makes clear that, despite apparently having been given the assignment almost at random, Koester played a more active role in the process of producing the memos than perhaps anyone else at DOJ, with the possible exception of Yoo. In July 2002, when Yoo and Koester went to the White House to brief then White House counsel Alberto Gonzales, and perhaps David Addington, Dick Cheney’s top lawyer, on one memo, it was Koester, not Yoo, who orally summarized the memo’s conclusions (p. 46). (None of the attendees offered any feedback at the meeting, Yoo told OPR.)

        At one point, according to a footnote, Koester complained to a friend via email that she was working 12 hour days without breaks, and wrote: “I have a number of large projects with different people. I would have said no but it didn’t seem like that was an option here.” She added that she liked the work but wanted “enough time to do a good job on it.”

        The report describes a process in which Koester produced numerous drafts for Yoo, then, updated them based on his and other’s feedback. Koester appears to have accepted and agreed with Yoo’s notoriously aggressive general approach to the torture question. Indeed, according to the report, it was Koester who drafted perhaps the most controversial section of the memos: the discussion of the “commander in chief” power, in which OLC essentially advises the government that the president, as commander in chief, can disregard any law he wants during wartime. “Koester also told us that she thinks she ended up writing the Commander-in-Chief section, with ‘a lot of input’ from Yoo and Philbin,” writes OPR (p. 50)

        Even though she now works in a firm with Ken Starr and John Bolton, is a Federalist Society type, clerked for Clarence Thomas, and worked for John Yoo, I wonder if she has pondered in the quiet of her own mind what she actually participated in back in her early days just out of Law School…

        • emptywheel says:

          Ah thanks. I stand corrected.

          One of the most poignant details of her, IMO, is where she tells Yoo that she likes the new title he gave the Bybee One memo: the “bad things memo.”

    • BoxTurtle says:

      There is nobody in a position to prosecute who has any interest in prosecuting. There isn’t enough support in congress to force the issue. The public in general isn’t paying attention and the LARGE majority of those that are paying attention feel that, if anything, we’re too easy on Scary Brown Muslim Terrorists.

      Boxturtle (did I miss anything?)

  14. jbjd says:

    Absolutely. I have a condition called cold urticaria, for which I am under a doctor’s care. This genetic mutation causes an extreme allergic reaction to cold, which can result in death. The most frequent trigger for sufferers of cold urticaria is exposure to cold water. http://www.mayoclinic.com/health/cold-urticaria/DS01160

    (Of course, setting aside the legal technical discussion of the source of authority for dousing human beings in custody with cold water and leaving them out in the cold, this question remains: why?)

  15. arlopear says:

    Would be grateful if anyone can clarify whether the CIA interrogation techniques listed in Appendix F of the 7 May 2004 CIA OIG report (which include ‘water dousing’) were approved by OLC. I interpreted an earlier comment in this blog to say that water dousing was not approved until the 26 August 2004 memo from Goldsmith to Muller.

    Separately, is there any information – speculative or otherwise – about the CIA contractors who may have been involved in Rahman’s death? (any info about what company they worked for? or possible companies?) The September 2009 WaPo story suggested that the Salt Pit manager “ordered” Afghan guards to rough up Rahman and shackle him to the floor. Is there additional information that Afghan guards were directly involved? Accounts from other prisoners held at Salt Pit suggest the Afghan guards were on the perimeter, but not involved in direct prisoner contact (to my recollection).

Comments are closed.