The CIA OIG Made Five Criminal Referrals During Its Investigation of CIA Interrogation Techniques

In January 2003, the CIA’s Inspector General started an investigation into the Agency’s interrogation techniques. It wasn’t–they claim–in response to any specific allegation of torture.

In January 2003, OIG initiated a special review of the CIA terrorist detention and interrogation program. This review was intended to evaluate CIA detention and interrogation activities, and was not initiated in response to an allegation of wrongdoing. [my emphasis]

The CIA OIG finalized their report on the investigation in May 2004. Over the course of the investigation, CIA’s OIG referred five cases to the Criminal Division of DOJ.

[Alice Fisher] said she recalled there was an investigation based on a CIA referral that may have related to detainee treatment or interrogation techniques, and that she became aware of some facts relating to CIA interrogations. She did not say when DOJ received the CIA referral, though she noted that it was sometime “later." [Later than the late 2002-early 2003 time frame of a debate about al-Qahtani.] Documents reflect a total of five referrals by the CIA OIG to DOJ. These referrals were made between February 6, 2003 and March 30, 2004.

Here is the CIA’s description of why they refer cases to DOJ pursuant to a CIA OIG investigation.

If OIG has a reasonable basis to believe a federal crime may have been committed, the IG reports the information to the Attorney General.

In other words, over the course of its investigation into the CIA’s detainee treatment and interrogation methods, the CIA Office of Inspector General developed reasonable basis to believe that five incidents relating to detainee treatment and interrogation they had reviewed constituted a federal crime.

This is important, among other reasons, because in the same month CIA’s OIG submitted its report, the CIA discussed with the White House destroying tapes–reviewed over the course of the OIG investigation–of Abu Zubaydah and al-Nashiri being water-boarded. Even before the CIA water-boarded Abu Zubaydah, an FBI interrogator reported, he witnessed activities he believed constituted "borderline torture." A year later, after the CIA OIG submitted a report that presumably described five events the CIA OIG believed to constitute a federal crime, the CIA ultimately destroyed the tapes of those Abu Zubaydah interrogations.

74 replies
  1. ezdidit says:

    Every single time, it’s the cover-ups that get them. Why not just arrest them all and throw them in jail. Let the lawyers sort it out. Give them a wake up call before they can do any further damage.

  2. al75 says:

    From Asia Times – Bush ‘plans Iran air strike by August…..8Ak01.html

    The source, a retired US career diplomat and former assistant secretary of state still active in the foreign affairs community, speaking anonymously, said last week that the US plans an air strike against the Iranian Revolutionary Guards Corps (IRGC)

    Obviously, we’ve all been hearing rumors of this kind of planning for more than a year. But as the specter of a credible investigation of US torture practices grows, I suspect that the political calculations of Cheney et. al shift in favor of an attack, no matter how pointless and destructive to US interests.

    It does sound like there’s a cadre in the DOJ who are genuinely appalled at the violations of law and investigative procedure. Also, let’s not underestimate the historic enmity between the FBI and CIA, as well as resentment of Cheney’s high-handedness.

    But the notion of a ‘24′ scenario with a courageous president striking back against an evil terrorist nation might just be enough of a conversation-changer. At least, that’s how Cheney might see it.

  3. jackie says:

    Sorry OT, but strider? (sorry if misspelled)posted this link and there’s a lot of little nuggetty things in it..

    Could the FBI criminial investigation have started re; Bolton’s wiretaping of the UN and others???
    Hmmm, then maybe we should look closer at Mr Bolton and associates/friends/family. I’m sure there are some really interesting ones…

    I always wondered if the reason Bush played so hard to get John Bolton into the ‘Diplomatic Core’ was so he would have;

    1. Diplomatic immunity.

    2. Easy way to stay close to the ‘people’ you knew ’stuff’ about….Easier to work your ‘magic’ that way…

    ‘Edmonds mentioned in an interview last spring that the FBI’s targeting of US officials began after surveillance of foreign diplomats in the US exposed criminal activity involving Americans, leading to parallel investigations.’

    She starts talking about it at around 17:30 in the video clip:…..Clip65.htm…..nds-2.html

  4. Leen says:

    Ew you are on fire!
    What tapes? What would happen to someone from the peasant class if they destroyed the goods?

    Ot Former President Jimmy Carter is on fire too.

    Carter Urges ‘Supine’ Europe To Break With US Over Gaza Blockade

    Ex-president says EU is colluding in a human rights crime

    By Jonathan Steele and Jonathan Freedland

    26/05/08 “The Guardian” — Britain and other European governments should break from the US over the international embargo on Gaza, former US president Jimmy Carter told the Guardian yesterday. Carter, visiting the Welsh border town of Hay for the Guardian literary festival, described the EU’s position on the Israeli-Palestinian dispute as “supine” and its failure to criticise the Israeli blockade of Gaza as “embarrassing”.


    Former President Jimmy Carter aroused concerns when he referred at a news conference on Sunday to Israel’s possession of “150 or more” nuclear weapons.

  5. GeorgeSimian says:

    Is Alice Fisher’s vague memory plausible at all?

    may have related to detainee treatment or interrogation techniques

    An investigation that concluded that Americans were torturing prisoners would stick in your memory, wouldn’t it?

  6. JohnForde says:

    I don’t think so. For example, the fire in the VP’s office. Everyone knows it was a document fire. Coverup. No questions asked.

  7. phred says:

    EW, was Alice Fisher in a position to single handedly quash the 5 criminal referrals from the get go or would more junior career lawyers within the division have been able to pursue the investigations (after which Fisher suppressed their findings)? Just curious what the procedure at DoJ is upon receipt of a criminal referral from CIA’s OIG. In either case, the timing of Ms. Fisher’s retirement is becoming increasingly clear.

    • emptywheel says:

      I don’t know. I think they’d be referred to ED VA–remember that Chuck Rosenberg had to recuse himself from the torture tape investigation.

      As to Fisher, I’m not yet convinced that’s the issue. Fisher was central to the BAE probe, and the probe is getting dangerously close to Cheney’s little black budget. That seems like a bigger risk to this Administration than “mere” torture.

      • phred says:

        Thanks EW. Good point about the BAE scandal being a bigger threat to Cheney. As Mary so eloquently points out for us, no one in government seems to give a damn about torture.

      • phred says:

        EW, not to go off topic too much, but with my recent intermittent attendance, I have lost the thread a bit with Alice Fisher… In what way is she central to the BAE investigation? Perhaps if you have a link to a prior post, that will do, I don’t really want to distract from the CIA referrals to nowhere.

          • phred says:

            Thanks again EW, but once again I am confused. So if Fisher was pursuing the BAE scandal, that suggests she is not entirely a member-in-good-standing of BushCo, or perhaps she was in the dark about where all the tendrils of that scandal lead. It appears possible she was forced out for getting too close to Cheney’s handiwork.

            After a quick bit of googling, it appears Fisher had a “tumultuous tenure with the counterterrorism office of the U.S. Department of Justice from 2001 to 2003, Alice S. Fisher has been nominated to return and serve as chief of DOJ’s Criminal Division.“, that latter bit was in the spring/summer of 2005. So now I’m puzzled… was Fisher still in the Criminal Division when the referrals arrived (Feb 2003 to March 2004) or had she already returned to the corporate law world? And in any case, why didn’t they ask Chertoff what he recalled rather than Fisher?

            Given her background, I find it hard to believe she would actively work to reveal any wrongdoing by BushCo, which brings me back to the question of whether she had a hand in the demise of the criminal referrals, and whether that might cause problems for BushCo with the release of the OIG report.

            • phred says:

              Huh, I just looked up Chertoff, and he went to the US 3rd Circuit Court of Appeals in June 2003. So who was the head of the Criminal Division in 2003 and 2004, prior to Fisher’s arrival in 2005?

              • JimWhite says:

                Looks like that would be Christopher Wray.
                You might recall that he headed up the criminal investigation into who leaked Plame’s name and was very “neutral” about it:

                But Senator Charles E. Schumer, Democrat of New York, said he was troubled to learn from Mr. Wray at Tuesday’s hearing that the attorney general is receiving regular reports on the status of the inquiry and has been told whom the F.B.I. is interviewing. Mr. Schumer said the attorney general’s close personal and political ties to the White House pose a potential conflict if Mr. Ashcroft knows the White House officials investigators plan to interview.

                “When the line prosecutors know that the attorney general knows what they are doing, it could hamper their independence,” Mr. Schumer said in an interview. ”It means someone is watching over them, and that’s not what we want in a case like this. It has a chilling effect, and it makes the case for Ashcroft recusing himself stronger.”

                We all know how that one turned out.

                • phred says:

                  Thanks JW! And hence, Mary’s question about him earlier… I may be slow, but I catch up eventually : ) Thanks again.

                • Leen says:

                  “neutral” about the outing of an undercover agent whose job is linked to National Security in a huge way> “Neutral” Oy vey!

  8. masaccio says:

    I did a quick google search looking for some reference to these referrals, and found nothing. Obviously they are not a public record, and I assume that there were no trials.

    Maybe the second torture memo was aimed at turning off this prosecution. It contains a bunch of stuff about application of US law in foreign countries. I’ll check that later, but now, sadly, I must earn my daily bread.

    • WilliamOckham says:

      The bigger question is why aren’t they mentioned in the Vaughn index for the Amnesty International FOIA request that the CIA released in April. They are linked here as Exhibits A1 – A7 to the declaration of Ralph DiMaio.

      I’ve done some processing on those pdfs to build an xls file that is sortable by date. There’s almost nothing from those dates from the CIA OIG.

      • WilliamOckham says:

        Exhibit A6 contains CIA documents from the relevant time period that are in the custody of OIG, but none of the documents originate within the OIG. They are mostly cables between CIA HQ and Field.

    • masaccio says:

      As I thought: from the August 2003 Yoo torture memo, page 21

      First, those persons who are neither members of the Armed Forces nor are employed by or accompanying the Armed Forces are subject to prosecution for violations of federal criminal law when they are at a location that is included within the special maritime and territorial jurisdiction. Conversely, when the acts in question are committed outside of the special maritime and territorial jurisdiction, these individuals are not subject to those federal criminal laws. So, for example, a federal, non-military officer who is conducting interrogations in a foreign location, one that is not on a permanent U.S. military base or diplomatic establishment, would not be subject to the federal criminal laws applicable in the special maritime and territorial jurisdiction.

      And from page 34, the War Crimes Act is not applicable to conduct toward members of the Taliban or al Qaeda pursuant to the “Treaties and Law Memorandum” of the Justice Department. This precludes criminal prosecution of US nationals for war crimes against Taliban or al Qaeda.

      And, page 36: “The criminal prohibition against torture therefore would not apply to their conduct of interrogations at U.S. military bases located in a foreign state.”

      And the Unitary Executive argument from page 18:

      Even if these statutes were misconstrued to apply to persons acting at the direction of the President during the conduct of war, the Departinent of Justice could not enforce this law or any of the other criminal statutes applicable to the special maritime and territorial jurisdiction against federal officials acting pursuant to the President’s constitutional authority to direct a war. Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute would be unconstitutional as applied in this context. This approach is consistent with previous decisions of our Office involving the application of federal criminal law. For example, we have previously construed the congressional contempt statute not to apply to executive branch officials who refuse to comply with congressional subpoenas because of an assertion of executive privilege.

      • emptywheel says:

        Excellent work, masaccio. I’ve got some correspondence bet Durbin and DOJ saying there were 20 criminal referrals in this time peroid (I’m working on posting it–but it’ll be tomorrow, probably). I guess they just Yoo’ed them all.

  9. JimWhite says:

    Shouldn’t Ashcroft get hauled before Leahy and/or Conyers, under oath, to provide a full accounting of the disposition of these referrals? Seems like that could be done without even disclosing the nature of the crimes alleged.

  10. WilliamOckham says:

    And I wonder if this is a coincidence. The first CIA OIG referral was on February 6, 2003. Two days early this happened:

    Document Description : This document is a two-page memorandum for the record summarizing a briefing to Congress on a particular set of issues. The document is dated February 4, 2003 and bears the
    classification TOP SECRET//SCI.

    • phred says:

      WO, nice catch — just curious, where is the citation about the February 4th document from? Does the original source reveal who the recipients of the Congressional briefing were?

        • phred says:


          I know that Pelosi claims to have objected to warrantless spying, but I am enormously curious whether she knew and whether she objected to torture. I realize she claims to have removed impeachment from every horizontal surface she could find (tables, counter tops, footstools…) on the basis of electoral politics and the prospects of the Democratic Party (rather than in some kind of service to the American public), but I can’t help wondering if at some point she agreed to something she shouldn’t have and fears the day she may be called to account.

          • dosido says:

            Either way, Pelosi is blowing it. Either she is in collusion by agreeing to something she regrets, or she is in dereliction of duty by not leading a charge to impeach. Or both.

            It is unspeakable that congress is not enforcing their duty in the strength and force that is called for. They all know (by now) what they are dealing with and what their duty is. cowards. letters and hearings are not enough.

    • emptywheel says:

      Great post. And yes, maybe it’s worth digging out Lynndie.

      I honestly think WatchBlogs are one of the most important uses of the medium. Glad you’re doing it.

  11. Mary says:

    It runs the whole gamut, doesn’t it? The comparison the IG’s report has of the treatment of Gibson and his bragging revelations of torture and detailed info, which OPR found “too vague” to do anything about and which DOJ’s Public Integrity crew was “disinclined” to pursue vs. the rack and dunking stool meted out to an agent who merely had a letter delivered to Mueller using “unauthorized” means (a common mutual acquaintance) where the real punishment OPR was meting out was for being critical of the interrogations; it’s just one more and one more and one more instance of all of DOJ being nothing but either a bunch of loyal Bushies, pandering in support of depravity, or self absorbed egoists who don’t give a rats ass about the cost as long as their careers thrive.

    If Priest’s story of a “young” detainee being slowly frozen to death are correct and if that was one of the referrals, I’d be really interested in discovering how it is that Fisher could be so forgetful about that.

    But once again you have a situation, complete with criminal referrals, and no one in DOJ requires preservation of evidence. When I start to wonder which is “more corrupt” Public Integrity or Crim, I kick myself for being so stupid bc the answer is easy. Most corrupt have been the AGs and DAGs who have, each and every one of them, led assault after assault on law and justice and professional ethics and obligations to the tribunals.

  12. Mary says:

    You know, as central as Fisher is, why isn’t there more focus on Chris Wray I wonder? He left his role as legal counsel and opted to become a direct witness to criminal activity on the GITMO trip, just like the rest of the crew. He headed up the criminal div for awhile.

    Here’s a piece he wrote on DOJ attacking corporate criminals, but the best part of it is the cartoon on the page:…..e/wray.htm
    A Judge, looking down at a man whose head is hanging, with the Judge saying firmly “Ignorance of the law is no excuse” and the man muttering, “I didn’t know that either”

    Substitute a head held high, chest puffed, and the blood of all the dead and wounded and refugees dripping from their fingers for the hangdog man, and there you’d have all the loyal Bushies at DOJ, startled to hear Leahy’s explanation that oaths aren’t taken to the President, but to the Consitution and stunned at the discovery that engaging in human trafficking for the prurient purposes of reducing actual human beings, many completely innocent, to naked stacks of flesh waiting for the next assault or death — well, that there just might be some frickin problem with that.

    In any event, Wray was certainly in the thick of things and had his own turn running the shop at Crim.

    I’m too old to be getting so disillusioned. I’ve always thought “the good, the bad and the ugly” was pretty descriptive of most things in life, but I’ve always basically believed that the good leads the list. I remember having such tremendous respect for people like prosecutors and FBI agents, who end up with their first and last names and family’s names as well, on the lips of some very nasty, evil people.

    But to see them all go for years and years and years destroying this country and currying favor with a frat boy cretin, there’s no way to respect them or their office, no matter what else they do. There’s no there, there, anymore. Years – YEARS – and no one says, “yes, we obstructed Justice; yes, we lied to the courts; yes, we encouraged and solicited human trafficking and torture, and NO, torture is NOT OK.

    When Gonzales was being confirmed and memos coming out and all to no public reaction whatsoever from anyone at Justice and no demand even for Bybee to be pulled from the bench, that’s when I knew in my head that it was all lost. But in my heart, I kept waiting. Go to any hospital and if you wander over to the right ward, you can see the same thing. Hearts believing when the mind knows better. And if you’re honest when you look around, you can see it’s not a pretty sight.

    Faith disconnected from reason leaves will with no purpose. Eventually, you realize there’s not really any new doctor or new machine or new surgery that will save what’s left. You have to consciously decide to go on for years and years with the facade of life, or admit things are lost and pull the plug. DOJ and the US justice system right now is basically the institutional version of Terry Schiavo.

    • bmaz says:

      The subject of this post is fairly sweet icing on the cake you and I have been whining about from the start of the torture tape destruction knowledge eh? Contrary to Rodriquez, Rizzo and the two CIA lawyer flunkies, it is not “there is no way in hell the tapes were evidence”, the truth is “there is no way in hell the tapes were NOT evidence” and 99 different ways from sunday to boot. This is absurd, Bull Durham needs to get on with it. My guess is that he has surmised all of this, and is just flinching at what really has to be done. He is not in an enviable position, but done it needs to be. Yoda has spoken….

  13. Mary says:

    Side note on BAE – I wonder if the US reaction with BAE might stimulate UK’s Serious Frauds crew to take any further or harder look at the KBR Nigerian bribes they were investigating (partly from the time of Cheney’s tenure at Halliburton)

    I thought it was kind of fitting that Cheney emerged from the crypt to go to bat for Jefferson and his “Nigerian situation.”

  14. JohnLopresti says:

    It seems the politicization of DoJ was a key strategy to forestall watchdoggery, though clearly there were internal investigations as various agencies continued to tend to bar illegal treatment of prisoners. Some of the agencies top whistleblowers in this regard are mentioned in a brief article by a prof of law in Toledo published in Jurist this week. Another interesting review was provided at the light-on-content, but buy-the-book site of one of the early writers of the ghostplane article Paglen, still, there are some perhaps helpful remnants of writing and images with scraps of chronology on that site.

  15. BayStateLibrul says:


    Chapter 5: Don’t fuck with a Texan

    “When a person who is not a resident of the state of Texas intentionally defames a Texas resident, it is fair and should be expected that they have to defend their conduct in a Texas court before a Texas jury,” Joe Roden, one of Clemens’s lawyers, said in a telephone interview.…..tion_suit/

      • BayStateLibrul says:

        Arizona over Texas.
        We just got back from our first trip to the Grand Canyon.
        You have mighty fine country, although the heat rose to 110.
        We took in Phoenix, Scottsdale and Senoma, and even genuflected at
        Barry Goldwater’s place…
        Looked for the law firm of bmaz, bmaz, and bmaz, but struck out.
        We were on a bus tour, so I was unable to get a seat at Chase Stadium.

          • BayStateLibrul says:

            Maybe a rain check. I’m trying to persuade my wife to let me hijack
            my 13 yr old grandson to a D’Back game next year. (She doesn’t trust the two of us) I’m assuming that since the Sox play Arizona in Boston this year, perhaps the Sox will visit Phoenix in 2009… (I may be wrong).
            I can’t afford World Series tickets this year.

  16. TheRealityBasedDave says:

    Keep the hearings going until Shrub is out of office. Then start the indictments. If anyone is indicted before Shrub leaves, he will give them the Scooter treatment. (Learned well from his daddy on that Christmas eve…)

  17. R.H. Green says:

    Mary @ 26
    “I’m getting too old to be so disillusioned” This remark reminded me of a statement I made about finding a profession I trained for was a field of intellectual prostitution and corruption. I felt disillusioned until I saw that losing the illusion that I was under was not a bad thing. Seeing things clearly for what they are is the price of losing an illusion (or losing an illusion is the price of seeing clearly). I’ve been inspired by the postings of Christy Hardin-Smith in her clear focus on the concept of the rule of law as a good thing,in spite of the fact that it is vulnerable to suppression by the Bad and the Ugly. Just because they get the upper hand, doen’t mean the concept is dead forever, nor that it’s only an illusion to be dashed by counterexamples. I don’t intend to be preachy here; I read your comments on this blog with relish, as comming from a kindred “spirit”, but I can’t help but sense anguish in your words and would rather see you fighting mad than dispairing over “disillusionment”. The meanings of words have a powerful effect on our understanding and on our emotions.

    • emptywheel says:

      Presumably, they all got ignored by either Paul McNulty or Chuck Rosenberg, the USAs for ED VA.

      Which is probably why Rosenberg recused from the torture tape investigation.

  18. BayStateLibrul says:

    Former White House press secretary Ari Fleischer said he was “heartbroken and stumped” by the book.

    “If Scott felt this, why didn’t he ever come to me privately and express it, or why did he take the press secretary job if he thought the president and the White House were disseminating propaganda,” Fleischer said.

    Ari, if Scott talked, he would have been fired, arshole!…..-book.html

  19. masaccio says:

    143-4/438 OIG Report:

    Chertoff told the OIG that he was aware that the CIA had requested DOJ approval for certain interrogation techniques and that the CIA had obtained a general opinion from the OLC relating to its interrogations. Chertoff said that the Criminal Division was asked to provide an “advance declination” in connection with the CIA’s use of some techniques, but that he had refused to provide it. In testimony before the U.S. Senate on February 2, 2005, Chertoff stated that he was asked to review a draft of an OLC memorandum that eventually became [the first Yoo torture memo].

    The timing of all this is unclear. Did Yoo try to get the advance declination in connection with the first or second torture memo?

    • emptywheel says:

      I’ve got a post mostly written on that one. There’s an earlier bit where Fisher is just as insistent that they did not pre-approve anything.

      Methinks CrimDiv doth protest too much, particularly since Yoo said he did run the second memo by Crim.

      The timing is odd–because they seemed to be in a discussion of events that occurrec in 2002, which would make it the first memo.

      • masaccio says:

        Twenty referrals? This just gets worse and worse.

        The language about advance declination is imprecise, but the context of events discussed puts it in the 2002 framework, of the first torture memo. I was thinking it might be the second because one of the differences between the first and second is the extensive language about potential defenses to criminal charges. It seemed likely that as the extent of the problems from torture became more clear, agents and their superiors began to press harder for protection, and the best solution would be an advance declination. When that was not forthcoming, the second memo was drafted with more pointed language to provide more comfort.

  20. Mary says:

    28 – that is a wonderful piece at that link JL. Thank you.
    30 done it needs to be Yes it does. But maybe in this episode the dark side wins? I hope not.

    36/37/40 – Yep – Wray and he was also listed by the MSNBC articles as being on the GITMO excursion trip Sept of 2002, right after the GITMO interrogators came back from their reverse SERE training with their shiney new torture badges.

    38 – Those are kind words and I understand your point. It’s just that there reaches a point when kicking the wall and fighting doesn’t do anything to revive that comatose patient and you have to accept that what is, is.

    I’ve always been like most people a “cynical-believer” with a lot of scepticism mixed with that soft spot that always remembers that, now and then, someone does the right thing. But the right thing at a horribly wrong time doesn’t do much. Stopping to help the dog hit by the car while its still breathing gives it a chance. After driving casually by the rotting corpse for seven years, there’s not much to be hoped for if someone suddenly decides to rush that pup to the vet.

    OTOH, maybe I just don’t have the resilience to see that there’s still some effort that might be successful. Samantha Powers gave a great commencement speech which is up at Huffpo…..03886.html and her point about resilience is well taken.

  21. Mary says:

    48 – you left out a part – I put it back for you: Former White House press secretary Ari Fleischer, after first receiving immunity for his criminal activity, said he was “heartbroken and stumped” by the book.

  22. Mary says:

    49 And from page 34, the War Crimes Act is not applicable to conduct toward members of the Taliban or al Qaeda pursuant to the “Treaties and Law Memorandum” of the Justice Department. This precludes criminal prosecution of US nationals for war crimes against Taliban or al Qaeda.

    And it was as it became clear that lots of the victims of kidnap, torture and abuse were not member of the Taliban or al-Qaeda, that the Kangaroo CSRTs were put in place. Because even the worst of the OLC opinions didn’t extend the pretext that these crimes could be freely committed against innocent civilians.

    Which is why Congress, in all its glory, did what the opinions could not by passing the MCA. With the MCA, everyone who went through any Kangaroo COurt CSRT is conclusively presumed to be an enemy combatant and they all lose their habeas rights anyway, no matter where in the world they are being purchased and abused, so there’s no forum for them.

    • Hmmm says:

      And while that squares everything off as far as US law goes, that’s also the point where international war crime liability accrues. Oh so clever, but in the end: still Checkmate.

    • JThomason says:

      Another instance of Yoo being wrong, with the SC finding the GC in fact does apply.

  23. Mary says:

    52 – that accounts for Chertoff and Fisher, but what about Wray, aka Witness Number 8?

  24. Mary says:

    43 – that could be, but for once taking the less bleak view (with regard to Rosenberg only) Rosenberg pretty much had to recuse himself period, whether he had anything to do with any CIA referrals or had any knowledge of the evidence being destroyed or not. What was being investigated were lies made by his office to the court – he can’t ethically be the one to investigate on that, he has too great an interest as a party to the fraudulent incorrect pleadings and discovery responses filed.

  25. JThomason says:

    Rasul v. Bush decided June 29, 2004, may have triggered a political reaction against the availability of habeas corpus moving forward but it nevertheless proved Yoo’s implied analysis of the jurisdictional status of Guantanamo Bay which one must assume was part of the cloth he was weaving was plainly mistaken.

    It disturbs me that the predictive tenor of Yoo’s memos lack any deferential awareness of the ultimately undecided character of the opinions he advances. Its an unsophisticated confidence born of his vainly failing to acknowledge that he could be wrong or the risks of this possibility. Bluster in opinion is not a new feature of legal counsel but it is only the need of the “client” to be right, to manipulate a prevailing position that emboldens this tone, and there should be reasonable reservations that this should be the standard of practice.

    What a peculiar opinion really, that the agents of the United States acting extra territorially are exempt from Federal Law. I suppose then all military commissions simply dissolve once one is out of the country?

    • JThomason says:

      And in as much Yoo makes a distinction of US agents who are not military what legal constraint of authorization does he suggest they are subject?

  26. Mary says:


    Yoo being so wrong is why they needed the MCA so badly.

    Rasul held that a STATUTORY habeas applied even at GITMO. That was a bit of a shock to DOJ (because of Eisentrager), but they took a stab at “fixing” that with the Levin co-sponsored Detainee Treatment Act. The DTA revises the statute that provides statutory habeas and made that statutory habeas inapplicable.

    So Hamdan went up on appeal. Hamdan was a case where the suit had already been filed before the DTA was passed and the habeas issue on appeal was whether or not the revised habeas statute (revised by the DTA) applied prospectively only (to cases to be filed AFTER the revisions) or retroactively to cases already filed. The Sup Ct said that the DTA only applied to prospective cases and they didn’t have that situation before them with Hamdan, they had an “already filed’ case.

    But the court left open whether or not Congress COULD, with better drafting, take away habeas period, for cases already filed as well as future cases. And to be honest, they really made a lot of noises in the several opinions indicating that sure, if Congress worded it correctly and provided an “alternative” (like the military commissions) to habeas, then they probably could get by with it, at least vis a vis statutory habeas.

    Now, that still leaves some complex habes questions, but in general, what Congress did with the MCA
    (thank you Harry Reid for not even trying – and a nod of appreciation to Clinton and Obama and Biden for making almost no effort as well – Chris Dodd is gold)
    was to draft
    (ok, DOJ did the drafting and maybe someone like Bradbury who, slimey though he is, has shown in other settings that he can draft)
    a revision to the habeas statute that made the DTA suspension of habeas tame by comparision.

    The MCA, unlike the DTA, is not limited to GITMO and covers all the black sites as well. Habeas is suspended worldwide, basically, for anyone who gets the label “enemy combatant” which can include a wide net of people providing “material support” (I guess like that from McCain’s lobbyist crew) The MCA is not limited to prospective cases and clearly disenfranchises all cases. It preserves a pretence of appeal rights by allowing an appeal of ONLY whether the MCA followed its own rules
    (those rules allowing for torture testimony, secret testimony, yada yada)

    So what Rasul and Hamdan giveth, the MCA very clearly taketh away.

    There will have to be a different giveth from the S. Court (like a finding of inherent habeas, or my fave – that the MCA is attainder legislation – or a finding that the alternatives are too flawed – etc. ) if habeas will still be available after the MCA.

    And the reason for that long spiel is that, without habeas, Yoo isn’t really “wrong” in a practical sense. If the right has no remedy, there’s no right. If a “wrongful” determination of enemy combatant has no access to any court to order relief, then in all practicalities, Yoo is basically right in effect even if he screwed the pooch on causation.

    So while Bush and his unilateral executive and a bunch of torture advocates running DOJ couldn’t suspend habeas, now they have enlisted the services of Congress as well and they’ve done it in a way that tracks some of what the court indicated could possibly be done.

    And all of this goes to the Geneva Conventions findings as well. Because the only way the GCs applied, since we do not have enabling legislation per se for the GCs, was this way (IIRC). First Stevens said that the Uniform Code of Military Justice applied to the military at GITMO. Second he said that the Constitution gives Congress, not the President, the right to make the rules and the President can’t override this Congressional right unilaterally (shooting dead the Beaver memo that asserted the Nuremberg defense – that it was ok to violate the UCMJ as long as a superior officer ordered it). Third, the UCMJ incorporates by reference the “laws of war” so Stevens said, the GCs are a part of the laws of war, and absent a specific provision in the UCMJ to the contrary, if the laws of war are incorporated, then the GCs are incorporated.

    That’s the flimsy thread from which Hamdan hangs. So the “victories” of Rasul and Hamdan both rely on interpretation of Congressional legislation. Which legislation has now been changed by the MCA. So the per se holdings from Rasul and Hamdan don’t apply anymore.

    Plus, Congress went that next step and made it irrebuttable that someone IS an enemy combatant as long as a CSRT found them to be. That includes the old, Kangaroo court CSRTs. That includes the CSRTs that a collection of Federal Judges had already on the record overruled as being clearly contrary to fact, in cases like Kurnaz and the 5 Uighurs who were eventually shipped to Albania.

    The more you know, the worse it is. I still have a hard time thinking the Democratic party is worth a damn after it failed to fight on this, even while the Arar case was headlines right before the vote, and even with international press reporting Rice’s admission of our kidnap and torture of “mistakes” to Merkel prior months prior.

    58 – how is there any real recourse there, though? For the victims or against the criminals? I mean in a real and practical sense.

    The only real possibility out there is the War Crimes Act. It is, in essence, enabling legislation and while it doesn’t give the victim of Presidential war crimes habeas, it does provide recourse against a war crimes perpetrator and defines, legisaltively, those war crimes in terms of the Geneva Conventions. The reasons that the War Crimes Act has had no impact to date are: Ashcroft, Bybee, Thompson, Goldsmith, Comey, Bradbury, Gonzales, McNulty, Keisler, Clement, Mukasey, Filip – – although you can add Chertoff, Wray and Fisher if you want.

    The very top decision making levels of DOJ have not only decided not to prosecute the war crimes, but to give “secret” authorizing opinions (which aren’t worth anything and can’t be formal opinions of the AG office if issued in secret IMO) and to invoke state secrets to cover up crimes and to encourage the destruction of evidence, obstruction and lies to the courts and congress, all the while refusing to perform their statutory obligation of enforcing Congressional subpoenas.

    If you get a “democratic” AG, then what? No one wants to prosecute CIA agents and VPs and Presidents – meaning none of the candidates. Lots of questions from a real investigation are going to be as embarassing for Dems as for anyone. Bill Clinton’s first renditions, Pelosi’s knowledge of and complicity in torture authorizations when she took impeachment off the table, etc. Can you deal with it by a real independent counsel (not an in-house appointment like Fitzgerald or Durham)? Maybe, but Congress would have to give you the legislation for it, and with so many leaders in COngress likely to be left footed if the investigation is “real” I dont’ expect to get it from them.

    Things aren’t completely boxed in, but for as stupid and idiotic and immoral and depraved as the Bybee and Yoo et al opinions were, the practical effect so far is pretty much the same as if they were gold. And that may be the legacy and practical outcome of it all.

    • MadDog says:

      Plus, Congress went that next step and made it irrebuttable that someone IS an enemy combatant as long as a CSRT found them to be. That includes the old, Kangaroo court CSRTs.

      And if folks really want to see what Mary means by the Kangarooism of the CSRTs, you only have to read this poor Kuwaiti charity worker detainee’s sad story (Pages 5 through 28) in this Combatant Status Review Tribunal process.

      And if you really want to read more of these tragedies, you can go to the DoD’s Reading Room for their collection of Combatant Status Review Tribunal (CSRT) and Administrative Review Board (ARB) Documents.

      But who among us has the time to read thousands and thousands of pages of thousands of documents?

      So instead, real flesh and blood human beings, just like you and I, are held captive for years by our very own government, interrogated by uncivilised cretins, tortured just because Junya and Deadeye and their criminal cabal have lifelong issues of inferiority, and then to read this poor Kuwaiti’s story, it is almost miraculous that he somehow, someway still believes in a “City on the Hill” America where one is “Innocent until proven Guilty.”

      But of course, that can’t be true! If one has been labelel an “unlawful enemy combatant”, then that must be true. We’d never make any mistakes, would we?

      In our fookin’ names!!!

    • emptywheel says:

      That’s why I wrote the date down…

      No, on MCA I’m totally with you. It was the 2002 war vote all over again, with my Senator (Stabenow) leading the way.

  27. JThomason says:

    The thing that has been occurring to me, inasmuch as we are seeing these OIG reports and are beginning to get a picture of the environment in which these tortures occurred, but especially in light of the story that Prince Bandar “inadvertently” channeled funds to a Saudi covert agent with financial links to the hijackers in an operational relic of the funding of the Mujahadeen is that we really have no idea of the intelligence provide by the Saudis concerning Al Queda based on the access to these channels. Not that such would mitigate the judgment of depravity in any circumstances involving the killing and mutilation of innocents and children set out in reports alluded to here from time to time but it certainly holds out the prospect that the actions of the CIA were not absolutely arbitrary.

    I expect that this speculation may not be particularly popular but still there is drumbeat of conscience arising in the fourth estate and forwarded by some kind of pressure of oversight that is moving the points of disclosure forward.

    The attempt to insinuate methods of foreign intelligence checked by the risk of exposure into the provenance of domestic law enforcement surely will ultimately have consequences, but that’s just my attitude. The jury is still out on FISA after all. I suppose what I am suggesting is that a prosecutorial gesture needs to be made as a practical matter and as an acknowledgment that there are limits and costs to executive action and that any exceptional powers arising in the executive particularly of 9/11 are now setting.

    • Leen says:

      Former Secretary of the Treasury Paul O’Neil was “let go” by the first Bush administration when he started investigating these links. Read Ron Susskinds “The Price of Loyalty”

      • JThomason says:

        Its just my disposition, I suppose, to attempt to find some shred of decency or some modicum of redeeming circumstance. With respect to what we are discovering about the torture regime I am not particularly encouraged.

  28. Leen says:

    Sure seems like you folks are doing other people’s work but sure glad you are. Thanks.

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