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Rendering Opinions on Rendering Detainees out of Iraq

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This is going to be a really weedy post trying to explore what was going on with just about the only named opinion that Jack Goldsmith wrote at OLC that has gotten focused attention–a March 19, 2004 one cataloging the protected status of different kinds of people captured in Iraq. I will return to the significance of it in a future post. But this post shows that the topic of Goldsmith’s opinion appears to have been debated up until the time he left DOJ–and after he left, another opinion served to authorize the rendition of detainees from Iraq.

Addington objects to Goldsmith’s decision that Iraqi terrorists have protection under Geneva Convention

As Goldsmith wrote in Terror Presidency, this issue is one of the first he dealt with after he became OLC head in October 2003.

“Jack,” Gonzales said after cursory congratulations on my new post, “we need you to decide whether the Fourth Geneva Convention protects terrorists in Iraq. We need the answer as soon as possible, no later than the end of the week,” he added in his deadpan, nasally Texas drawl. (32)

After Goldsmith concluded in October 2003 that Iraqi members of al Qaeda were protected under the Geneva Convention, David Addington went apeshit.

“They’re going to be really mad,” [Patrick] Philbin told me as he and I were driving from the Justice Department to the White House to explain to Gonzales and Addington why the department that Iraqi terrorists were protected. “They’re not going to understand our decision. They’ve never been told ‘no’.”

Philbin was right.

“Jack, I don’t see how terrorists who violate the laws of war can get the protections of the laws of war,” said Gonzales, calmly, from his customary wing chair in his West Wing office.

[snip]

“The President has already decided that terrorists do not receive Geneva Convention protections,” [Addington] barked. “You cannot question his decision.” (41)

Goldsmith went on to develop his oral advice into a formal opinion. And while he drafted that on March 19, 2004, he never finalized it.

Debate over detainee status between June and October

Now, as I’ll show below, the memo (or what was explained to be the memo) caused a bit of a firestorm in October 2004. But before that happened, the OLC Vaughn index shows, there appear to have been several rounds of discussion on the issue.

While the Vaughn index doesn’t list the March 19 version of this memo, it appears to show what might have been a June 29, 2004 version addressing the same topic.

This is a ten-page draft, from OLC to CIA. It is confirming legal advice, which was initially given orally, on whether a detainee is considered a protected person if involved in counterterrorism acitivies and captured.

Only this June 29, 2004 memo is 10 pages, whereas the March 19 memo is 23 pages.

Then, the following day, there is what may be CIA’s comments on that draft (with one additional page and hand-written notes), though this description doesn’t mention protected status.

This is an eleven-page document with handwriten comments, from the CIA to OLC, commenting on a draft letter regarding terrorism and interrogation of detainees.

On July 2, the same day Scott Muller wrote Jim Comey to tell him what had been approved after he and John Bellinger left a principals meeting discussing the interrogation of one particular detainee, CIA sent a second short memo describing the CIA securing custody of a detainee.

This is a two-page memo with a fax coversheet, providing legal advice regarding the CIA securing custody of a detainee and use of interrogation methods.

On July 14, three days before Goldsmith’s accelerated departure (remember, he originally intended to stay until August 6, but left on July 17 instead), there are nine copies (documents 50-58) of a one-page OLC memo written to the record (that is, not sent to the CIA per se) addressing whether a captured member of “a terrorist network” is legally protected.

This is a one-page OLC memo on whether a captured member of a terrorist network is legally protected under international law.

The number of copies written to the record suggests there may have been a face-to-face meeting on the subject after which the copies of the draft discussion were retained by OLC.

On July 15 (two days before Goldsmith left), there is a 5-page memo on the same subject.

This is a five-page OLC memo on whether a captured member of a terrorist network is legally protected under international law.

On July 21 (four days after Goldsmith’s departure), there is a 10 or 11-page document plus fax cover sheet from the White House to DOJ.

This is a ten-page document with handwritten marginalia and a fax cover sheet, which contains pre-decisional communication regarding detainees, that was sent from the EOP to the DOJ.

This is the only document in this set written by the White House.

After the White House document (which may or may not relate to the protected status of detainees) the dated OLC communication in the Vaughn Index consists exclusively of advice about torture techniques for several months.

Then, on October 4, there are a 4-page and a 5-page OLC memo written to the record “from OLC regarding application of international law, as it relates to detainees.”

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Bybee: No Written Advice Provided to Any Agency Prior to August 1, 2002

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 When Jay Bybee responded to written questions from Carl Levin about the torture authorizations in October 2008 (at a time when the Office of Professional Responsibility investigation was well-advanced, if not done), he made the following assertion.

While Judge Bybee said that he did not recall "any written advice provided to any governmental agency prior to August 1, 2002, on the meaning of the standards of conduct required for interrogation under the federal anti-torture statute or on specific interrogation methods," the August 1, 2002 memos were not the only occasion on which DOJ provided legal advice on the CIA’s interrogation program.

That’s interesting, because we know that on July 13, 2002, John Yoo wrote John Rizzo a letter in which he mapped out how to avoid prosecution for torture. He wrote:

This letter is in response to your inquiry at our meeting today [not attended by Bybee] about what is necessary to establish the crime of torture, as set forth in 18 USC 2340 et seq. The elements of the crime of torture are: (1) the torture occurred outside the United State; (2) the defendant acted under the color of law; (3) the victim was within the defendant’s custody or physical control; (4) the defendant specifically intended to cause severe mental or physical pain or suffering; and (5) the act inflicted severe mental or physical pain or suffering.

[snip]

Moreover, to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose, [sic] of causing prolonged mental harm in order for the use of any of the predicate acts to constitute torture. Specific intent can be negated by a showing of good faith.

Now, it’s possible that Bybee did not consider this "written advice," but it sure seems to address the topic at hand (and note, Bybee did not say "opinion," but only "written advice"). It’s possible he lied–though I would imagine his answers to Levin very closely matched the answers he gave to OPR to what would presumably be remarkably similar questions.

Just as likely, I think Bybee may not have known about this letter.  On June 22, 2004, the day OLC withdrew the Bybee One memo, John Rizzo faxed the letter (including the fax cover sheet Yoo originally used) back to Daniel Levin. That either suggests Rizzo was trying to remind Levin of the meeting on July 13, 2002 (which Levin had attended as FBI Chief of Staff). Read more →

No One Saw the Bybee One Memo, Either

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One last detail from last years’ torture hearings before HJC. At the hearing with Daniel Levin, Keith Ellison asked whether, if someone relied on the Bybee One memo (the "organ failure" one), whether they could be prosecuted. 

Mr. ELLISON. Do you believe that the earlier memo gave license to people following its direction to engage in illegal techniques, interrogation techniques?

Mr. LEVIN. Well, it included a definition of torture that I frankly disagreed with and which would have, I think, allowed techniques that I would have concluded violated the statute. And it included this discussion of ways that you could overcome the statute, even if it applied and otherwise would have been violated.

Mr. ELLISON. So if somebody were to rely on that memo, the earlier memo, they would have been violating the law intentionally?

Mr. LEVIN. If somebody relied on the first part of that memo and went up to the limits of what it allowed, in my view they would be violating the law.

Now, again, maybe I am wrong and the earlier memo is correct. If somebody relied on the other constitutional overrides of these defenses, in my view they might well have been violating the law. It obviously would depend on the circumstances.

Mr. ELLISON. Did that ever happen?

Mr. LEVIN. I don’t know. I don’t know. I know there have been lots of investigations into sort of how things ended up happening and who was relying on what. My understanding was that that memo was very—was not broadly circulated. And so I don’t know whether people who were engaging in any conduct were even aware of the memo, let alone relying on it. [my emphasis]

Levin reports–about the Bybee One memo–something similar to what we’ve heard about the Bybee Two memo: that not many of the torturers had seen the document.

Beyond that, officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

"A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

So if both these reports are correct, then the torturers can’t claim to be relying on the Bybee One memo, nor can they claim to be relying on the Bybee Two memo. 

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Addington’s Direct Involvement in the Torture Memos

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As I noted yesterday, I’ve been reading old HJC hearings–including the hearing at which Daniel Levin testified about the torture memos. Levin basically testified that he was asked to resign while he was drafting what became the 2005 Bradbury memos.

Mr. DAVIS. Mr. Levin, let me begin with you and Mr. Wilkerson, and put frankly everything I have heard today in some context. And I want to pull out two particular events. The first one is the circumstances of your not being at the Department. I know that you were very careful in your answers to Chairman Nadler earlier. But let me make sure I understand you.

You didn’t voluntarily leave the Department; is that correct?

Mr. LEVIN. I would have preferred to have stayed. I mean, when I was told I wasn’t going to stay, I voluntarily left.

Mr. DAVIS. That tends to be what happens; when people who are over you tell you to go, you go. That is what in the real world is called being fired.

But he also revealed something else about what happened when he was drafting the replacements for John Yoo’s crappy memos: he had no direct contact with David Addington during the process–or anyone else in OVP.

Mr. ELLISON. Whom did you talk to in the redrafting?

Mr. LEVIN. I talked to a lot of people. As I mentioned in my opening remarks, I think one of the problems with the earlier memo was, it was not the subject of sufficiently broad collaboration and discussion.

I talked, in addition to everybody in the Office of Legal Counsel virtually, people at the Criminal Division, various other people in the Department, people at the State Department.

Mr. ELLISON. Did you talk to anybody in the Vice President’s Office?

Mr. LEVIN. I don’t believe I did talk to anybody in the Vice President’s Office. I did submit drafts to the White House Counsel’s Office, and whom they circulated it to in the White House, I don’t know.

Mr. ELLISON. Okay. Do you know if—did Mr. Addington have any input into your redraft?

Mr. LEVIN. Not directly to me. Whether he did so indirectly, I am not sure. He may have provided comments to White House Counsel that were then communicated to me as their comments. I was not ever told anything that were his comments, and he never spoke to me about it directly.

Now, that’s remarkable. Read more →

Dan Levin’s September Memo

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I have said before that Dan Levin’s September 2004 Memo is one of the most interesting documents in Monday’s entire document dump. DOJ describes the document as "OLC’s view on the previous and current guidance it provided to CIA and DOD." As the date implies, it was written some time in September, though given the underscore in place of a date, it’s not clear whether this is more than a draft or even whether it was sent. It was addressed to John Ashcroft and Jim Comey by title.

The document is important and interesting for several reasons. I suspect it reflects ongoing difficulties on the part of DOJ to recover from John Yoo’s free-lancing and generally crappy lawyering. It provides an important marker of the discussions transpiring in fall 2004 on interrogation. And it provides critical insight to the Bradbury memos from spring 2005.

Since the document is heavily redacted, I’ll recreate the entire text of the document, along with my comments below. The original text is in blockquotes with my comments interspersed.

You have asked for an update on the status of interrogation advice.

A. GENERAL ADVICE

1. Previously Given

a. The primary prior general advice was an unclassified August 1, 2002 memorandum from Jay Bybee to Judge Gonzales interpreting the torture statute. It contains discussion of a variety of matters that are not necessary to resolving any issues to date.

This refers to the Bybee One memo–the memo invoking organ failure that Jack Goldsmith had withdrawn on June 22, 2004.

Levin states that this discusses "a variety of matters that are no necessary to resolving any issues to date," which suggests that thus far, the Bybee Two memo was adequate to authorize the interrogations that Levin knew of.

2. Current/Pending

a. [one description redacted]

This redacted pending memo must describe the Levin memo to Comey completed on December 30, 2004. I find it particularly interesting that this is redacted, since the memo itself has been unclassified and available for years. This suggests that Levin, Ashcroft, and Comey may have had a shared understanding about what that memo had to do to replace the Bybee One memo–an understanding that we’re not allowed to know about. As a reminder, the December 2004 Levin memo is the one with the footnote backing off of full renunciation of the Bybee One memo.

B. CIA ADVICE

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“We Will Provide, at a Later Date, an Opinion That Explains the Basis for this Conclusion”

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There’s an interesting line in the August 6, 2004 letter from Daniel Levin to John Rizzo approving the use of waterboarding with (we know from the later 2005 memos and from the short name included here) Hassan Ghul. Levin promises to send an opinion that explains the basis for his conclusion that waterboarding would be legal (albeit a close call).

We will provide, at a later date, an opinion that explains the basis for this conclusion.

That promise doesn’t appear on the July 7, 2004 letter from Jack Goldsmith approving the use of all the techniques but waterboarding (I’m not certain the letter pertains to Ghul). It doesn’t appear on the July 22, 2004 letter from John Ashcroft to John McLaughlin (then Acting DCI), approving everything but waterboarding. It doesn’t appear on the September 20, 2004 letter approving a bunch of other techniques, including water dousing.

It appears to show up only on the letter approving waterboarding. Waterboarding, and only waterboarding.

That’s mighty interesting because, in 2005, when OLC was just getting around to writing that promised opinion, CIA provided last minute information to make sure that waterboarding would be included in the March 10 Combined memo. They had to do so because CIA’s December 30 memo on combined techniques did not include waterboarding. So, with the last minute information, the Combined Memo came to argue that it was okay to waterboard someone who had been deprived of sleep. And, as Jim Comey revealed in his emails, that Combined memo was really intended to authorize treatment retroactively.

Now this doesn’t prove that the CIA waterboarded Ghul. (They claim to have decided not to because he was too obese for the technique.) Perhaps it wasn’t Ghul they waterboarded; perhaps it was someone they tortured later. We can’t ask Ghul because he remains disappeared, last seen in a Pakistani jail.

All of this is inconclusive. But Levin’s promise of a follow-up memo, combined with the urgency surrounding the memo in April 2005, suggests they really did waterboard someone. 

If so, they have been lying about it to Congress and the American people ever since.

Update: I’m still working through these–and I see that the August 26, 2004 letter from Levin to Rizzo has the same line, as well as a September 6, 2004 one that appears to relate to a different detainee. That letter discusses four new techniques that had not been used before, which showed Read more →

Hassan Ghul, Mystery Detainee 2, and the Three Bradbury Memos

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Update, March 12, 2015: We know from the Senate Torture Report that the Techniques memo was about Janat Gul, not Hassan Ghul. 

Since the Comey emails have come out, I’ve been trying to puzzle through why the Bush Administration issued three memos in May 2005–Techniques, Combined, and CAT–rather than just one or two. I guess I sort of understand doing a separate memo on whether the torture program complies with the Convention Against Torture, since that was largely written to placate Congress and ought to have (but did not) involve a more sensitive analysis. But since all the techniques are used in combination, why not join the analysis of Techniques and Combined?

This is to an extent a wildarsed guess. But I think they did three memos to hide the analysis and authorization of a particular detainee’s treatment. And I think that detainee was waterboarded.

Two Detainees

It has long been established that Hassan Ghul is discussed in these memos. Dafna Linzer reported on it the day the memos came out (and someone here MadDog also noted it about the same time–gold star to MadDog!!).

But the May 30 CAT memo actually mentions two detainees.

We understand that two individuals, [redacted across two pages] are representative of the high value detainees on whom enhanced techniques have been, or might be, used.

I’ll come back to this passage, but for the moment, understand that by the end of May 2005, Bradbury was ready to at least name two detainees in his memo.

The “Techniques” Memo Is about Ghul

I’m not 100% certain, but I believe that the May 10 Techniques memo is–at least ostensibly–exclusively about Ghul. The title of the memo uses the singular–Detainee. And the memo describes the detainee by name (the name is redacted, but it appears to be an appropriate length to spell “Hassan Gul”–CIA spelled “Ghul” without an “h”).

You asked for our advice concerning these interrogation techniques in connection with their use on a specific high value al Qaeda detainee named [redacted]. You informed us that the [redacted] and information about al Qaeda’s plans to launch an attack within the United Staes. According to [redacted] had extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and had arranged meetings between an associate and [redacted] to discuss such an attack. August 25 [redacted] Letter at 2-3. You advised us that medical and psychological assessments [redacted] were completed by a CIA physician and psychologist, and that based on this examination, the physician concluded “[redacted] medical stable and has not medical contraindications to interrogation, including the use of interrogation techniques” addressed in this memorandum.

So by all appearances, the Techniques memo uses the interrogation of Ghul to reapprove all the techniques used by the CIA, thereby replacing Bybee Two.

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The April 22, 2005 Fax on Torture

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I’m working on a series of posts about the 2005 Bradbury Memos and Hassan Ghul. But first, I want to make a couple of points about a document that plays a key role in them–particularly in the Combined Memo: an April 22, 2005 fax from the CIA’s Assistant General Counsel (the name is always redacted) to Steven Bradbury.

The Chronology

Before I get into the significance of the fax, here’s the chronology of it:

December 30, 2004: Background Paper on CIA’s Combined Use of Interrogation Techniques; Daniel Levin torture memo published

February 2005: Daniel Levin leaves DOJ

April 8, 2005: Draft "Techniques" and "Combined" OLC Memos (at that point, 57 pages in length) sent to CIA

"Several weeks" before April 27, 2005: Pat Philbin alerts Jim Comey to problems with "Combined" draft 

April 20, 2005: DOJ announces Jim Comey’s resignation

April 22, 2005: Meeting between Pat Philbin, Jim Comey, Steven Bradbury, Alberto Gonzales about May 10 torture memos

April 22, 2005: Fax to Steven Bradbury from Assistant General Counsel, CIA

April 26, 2005: Comey gets latest draft of Combined memo (no mention of Techniques draft), meets with Gonzales to express concerns, concurs with Techniques memo

April 27, 2005: White House tells Gonzales memos must be finalized by Friday, April 29

April 28, 2005: Gonzales’ Chief of Staff, Ted Ullyot, tells Comey the memo will have to be "sent over" tomorrow

May 10, 2005: Techniques and Combined memos (totaling 67 pages in length) finalized and sent to CIA

Note a few points. The May 10, 2005 memos were drafted by April 8, 2005. Apparently not long after CIA received that draft, Pat Philbin notified Jim Comey of problems with the "Combined" memo and (though there’s no reason to believe they’re related events) Comey resigned. 

And then, on Friday April 22, two things happened. Comey and Philbin tried to talk Gonzales and Bradbury into fixing the "Combined" memo. And Bradbury received the April 22 fax from the Assistant General Counsel of the CIA. Also note, while it’s clear Comey saw a draft of the "Combined" memo after April 22 (the one he describes as being worse than the previous draft he had seen), it’s not clear he saw another draft of the "Techniques" memo before he concurs with it on April 26–though we know the memo would have changed in the interim, since it cites the April 22 fax.

We don’t know what happened after that point. Read more →

Pre-Emptive Strike on OPR Report: NYT Misrepresents Comey Emails, Claims He Approved Torture

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Update: Read the Comey emails. The NYT has–IMO–grossly misrepresented the emails. Not only have they printed a story with their source’s spin completely untouched, but they have ignored the real news in these emails.

The NYT has been leaked a bunch of the emails that will show up in the Office of Public Responsibility report on John Yoo, Jay Bybee, and Steven Bradbury’s role in approving torture. (h/t Jason Leopold) Their story on the emails appears to be a pre-emptive (and somewhat misleading) strike on the OPR report due out shortly.

The most news-worthy of these appears to be Jim Comey, agreeing that the May 10, 2005 opinion authorizing waterboarding was “ready to go.”

Previously undisclosed Justice Department e-mail messages, interviews and newly declassified documents show that some of the lawyers, including James B. Comey, the deputy attorney general who argued repeatedly that the United States would regret using harsh methods, went along with a 2005 legal opinion asserting that the techniques used by the Central Intelligence Agency were lawful.

That opinion, giving the green light for all 13 C.I.A. methods, including waterboarding and up to 180 hours of sleep deprivation, “was ready to go out and I concurred,” Mr. Comey wrote to a colleague in an April 27, 2005, e-mail message obtained by The New York Times.

While signing off on the techniques, Mr. Comey in his e-mail provided a firsthand account of how he tried unsuccessfully to discourage use of the practices. He made a last-ditch effort to derail the interrogation program, urging Attorney General Alberto R. Gonzales to argue at a White House meeting in May 2005 that it was “wrong.”

“In stark terms I explained to him what this would look like some day and what it would mean for the president and the government,” Mr. Comey wrote in a May 31, 2005, e-mail message to his chief of staff, Chuck Rosenberg. He feared that a case could be made “that some of this stuff was simply awful.”

Now, I say this is a misleading attempt to pre-empt the OPR report.

I say it’s misleading not because I’m trying defend Comey for “going along with” this memo. But because the story buries the fact that Comey still did oppose the May 30, 2005 May 10 techniques memo (which raises the question of why these approvals came in three different memos).

His objections focused on a second legal opinion that authorized combinations of the methods. He expressed “grave reservations” and asked for a week to revise the memorandum, warning Mr. Gonzales that “it would come back to haunt him and the department,” Mr. Comey said in a 2005 e-mail to Mr. Rosenberg.

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It’s Not Just that Levin Was Ousted–It’s Bradbury’s Trial Run on Torture

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ABC reports something that had been somewhat clear for some time. Daniel Levin was ousted from the Office of Legal Counsel after he wrote a memo that limited the use of torture.

Former Attorney General Alberto Gonzales, now under investigation for allegedly politicizing the Justice Department, ousted a top lawyer for failing to adopt the administration’s position on torture and then promised him a position as a U.S. attorney to placate him, highly placed sources tell ABC News.

Gonzales, who was just taking over as attorney general, asked Justice Department lawyer Daniel Levin to leave in early 2005, shortly after Levin wrote a legal opinion that declared "torture is abhorrent" and limited the administration’s use of harsh interrogation techniques.

At the time, Levin was in the middle of drafting a second, critical memo that analyzed the legality of specific interrogation techniques, like waterboarding.

Gonzales, however, was concerned about how it would be perceived if Levin were ousted immediately after issuing the opinion — and just before he finished another — so he offered Levin a less significant job outside the Department of Justice at the National Security Council, sources tell ABC News.

[snip]

Levin took the NSC job in March 2005. The U.S. attorney position never materialized, and sources close to Levin say he never believed Gonzales was serious.

As ABC points out, Kyle Sampson floated Levin’s name to replace Kevin Ryan in San Francisco.

But what ABC only hints at is what happened next: the trial run of Stephen Bradbury for the position of OLC head. Within months after Levin was ousted, we know, Bradbury wrote three new memos on torture, endorsing the combined use of harsh techniques.

When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

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