John Yoo v. Alice Fisher and Michael Chertoff

Man, if you had to choose whom to believe between John Yoo or Alice Fisher and Michael Chertoff who would it be? John Yoo is a hack–but he’s an unashamed hack, proud of his accomplishments. Alice Fisher? Michael Chertoff? They’re more of the dishonest hack type.

The reason I ask is that there’s a seeming contradiction between what Yoo claims in his March 2003 torture memo regarding DOD practices and Alice Fisher and Michael Chertoff’s statements to DOJ’s OIG regarding related events. At issue is whether the Criminal Division of DOJ–Fisher was the Deputy Assistant Attorney General in 2003, and just resigned from Criminal Division Chief; Chertoff was head of the Criminal Division when the Administration was developing its torture policies–told OLC how they would treat certain actions criminally. The Yoo Torture Memo claims that OLC had consulted with the Criminal Division about which statutes would not apply to the military during the conduct of war:

The Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war.

But the DOJ OIG report on torture records Alice Fisher stating that the Criminal Division did not give advice–at least not on the techniques themselves.

Fisher stated that at some point she became aware that the CIA requested advice regarding specific interrogation techniques and that OLC had conducted a legal analysis. She also said she was aware of two OLC memoranda on that topic, but they did not relate to the FBI. Fisher also told the OIG that Chertoff was very clear that the Criminal Division was not giving advice on which interrogation techniques were permissible and was not "signing off" in advance on any techniques. (page 70fn; 113/438)

And Chertoff claims that he was asked–but refused to give–sign off on particular techniques.

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.  (page 100-101; 143-4/438)

In the sentence immediately following the description of Chertoff’s denial, it also describes Chertoff admitting that he reviewed the memo.

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 August 1, 2002, OLC memorandum regarding "Standards of Conduct for Interrogation," which is sometimes referred to as the "Yoo memorandum." Chertoff stated in his Senate testimony and his OIG interview that at least some of the CIA "techniques" were described to him at the time.

And then in a footnote, it reminds that the memo Chertoff reviewed did specifically address whether torture would or would not be charged.

This general opinion did not describe any specific interrogation techniques, but did include an examination of "possible defenses that would negate any claim that certain interrogation methods violate the statute" prohibiting torture. A separate DOJ opinion issued the same day stated that the specific techniques approved …

The reason this matters is because if Chertoff did sign off on what would and would not be charged, then the memos basically become attempts to make the illegal legal. Marty Lederman explains,

From all that appears, John was not acting entirely on his own with respect to the March 14th Opinion. Section II of the memo is where much of the most astounding legal analysis appears. In that section, John concludes that the federal statutes against torture, assault, maiming, and stalking (i.e., threats) simply do not apply to the military in the conduct of war, by virtue of four "canons of construction": (i) that criminal statutes should not be construed to apply to the military during war; (ii) that they should not be construed to apply to the sovereign more broadly; (iii) that they are superseded as to the military by the Uniform Code of Military Justice; and (iv) of course, that if Congress did mean for them to apply in this context, it would be a violation of the Commander in Chief’s prerogatives.

The memo’s application of these canons to these statues (especially the torture statute) is, in my opinion, fairly outrageous, for reasons I’ll discuss in further posts. And this section is the heart of the Opinion — the belts and suspenders in support of the basic conclusion that the military need not worry itself about all of these (and other) criminal laws in interrogation of al Qaeda suspects.

Here’s the remarkable thing: Page 11 of the Opinion states that "[t]he Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war."

In other words, John Yoo checked with the Criminal Division as to whether the military could torture and maim detainees in a war, and that Division, which ordinarily strongly resists narrowing constructions of criminal statutes, agreed that the torture and maiming (and other) statutes were inapplicable.

Now, as I said upthread, this is a seeming contradiction. What Fisher and Chertoff appear to be denying is that they bought off on any specific torture techniques. That’s different, of course, than buying off on the concept that the Criminal Division would not prosecute torture per se during wartime.

So actually, with their carefully parsed responses, Fisher and Chertoff are probably not lying. They’re just trying to distract from the fact that Chertoff bought off on the larger concept that DOJ would not prosecute torture in time of war–and then gave Yoo the leeway to decide for himself what kinds of torture he wanted to authorize. 

26 replies
  1. Ishmael says:

    Yet another example of the incredible abuse of prosecutorial discretion in the DOJ – a fettering of prosecutorial discretion to unleash the torturers, and free rein to indict for the crime of walking around while Democratic.

  2. WilliamOckham says:

    I tried to point out that contradiction on an earlier thread. What’s even more interesting is that it appears that Fine wasn’t even aware of the March 2003 torture memo. That memo has more applicability to his investigation than the August 2002 memos. Chertoff engaged in clever parsing:

    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.

    They just provided it 7 months later for the DOD.

    Fisher, on the other hand, appears to have lied through her teeth. Nahmias remembers talking to her repeatedly about detainee issues and she doesn’t remember anything. Unfortunately for her, Nahmias has contemporeaneous documentary evidence to back up his side of the story.

  3. drational says:

    They are like Pro footballers on a boat with hookers and coke. It was a ton of fun while it lasted, but now the team is on the skids and someone had a video camera.

  4. Mary says:

    And Chris Wray doesn’t show up anywhere in the exchanges? I know Chertoff would have been the walking boss when the memos were first being floated, but Wray went on the torture field trip to GITMO and stepped in to head Crim in late summer/early fall of 03. He seems a little conspicuous by his absence.

    Here’s something else Alice is trying to distract from – once the Hamdan decision came out, it was clear that all the lawyers at WH and DOJ who got their torture badges on the GITMO field trip were something other than, more than, and superceding their status as, lawyers. They were witnesses.

    Witnesses to discussions about using tactics that violated the UCMJ, witnesses to implementation of those tactics. No claims of privilege attach, other than the 5th if facts support it, to witnessing violations of law.

  5. phred says:

    EW, not to go off topic, but I want to revisit the question I had yesterday and it does tie in (I think) to this post.

    Lets say hypothetically that a President murders someone in cold blood in the oval office. And for the sake of argument impeachment does not ensue. Although the President could not be charged with the crime while in office, s/he would still be prosecuted for murder upon leaving office. Right? If so, it isn’t really that the murder was legal, it was just that it couldn’t be prosecuted while the President was in office. If not, then it seems to me Nixon was right when he declared that ”if the President does it, then it’s legal”.

    On the other hand, iirc the President is protected from prosecution for acts undertaken in the normal course of the discharge of their duties even after they leave office. So somewhere (in individual statutes?) a line must crop up between what a President can and cannot be prosecuted for once they leave office.

    Depending then on where that line is drawn I would argue that even for the President, outing a spy is against the law (CIPA? IIPA? whichever it is). It’s just that the President may not be prosecuted for it until they leave office. But again, depending on where the line is drawn, perhaps it is still a protected act.

    Now this brings me to this post. I wonder if some of the parsing from Chertoff and Fischer, isn’t less about what is legal (again, I won’t be convinced Yoo’s memo is legal until SCOTUS says it is) than what will simply not be prosecuted.

    Kinda like the tree falling in a forest thing… if a crime is committed and no one prosecutes it was it legal all along?

  6. maryo2 says:

    nolo @ 181 on Waxman Closing in on Cheney thread –

    Does Mukasey’s prommoting Matthew w. Friedrich to DOJ Criminal Division Chief (May 22, 2008) mean that Mukasey is prepared to give up Rove?

    TPM is reporting that appeals to increase Siegelman’s sentence were dropped by the prosecution today.

  7. Ishmael says:

    With respect to the President being indicted while in office, it is more a separation of powers argument, and the President can indeed be indicted post-Presidency for unpardoned Presidential crimes – impeachment is not considered double jeopardy at law, although there may be self-incrimination issues for any testimony given by the President in his impeachment trial (for all us Cheney-watchers, it is less clear that the VP is immune from indictment while in office – Spiro Agnew was forced to resign after being charged with bribery offences, but I think that the deal was that he resign from the VP first, and then do a plea bargain to an indictment immediately after to avoid the constitutional questions which were of course very much alive while Nixon remained President.

    As for the President’s immunity for official government acts, that is a clear doctrine of international law (and domestic law) but the Pinochet decision of the House of Lords clearly made an exception for crimes against humanity, including torture.

  8. GeorgeSimian says:

    It seems to me that the Yoo memo was a stinking fish, that both Fisher and Chertoff saw causing them trouble if they had anything to do with it, so they did their best to pretend it didn’t exist.

  9. Mary says:

    phred @ 8- here’s the most recent KNOWN OLC opinion

    but two things to note there. First, they don’t really discuss what happens after a President leaves office – just that they do not believe a jury of 12 can be allowed to overturn a national election by putting a president in jail while he is in office (none of their rationale – which, btw, is basically all Borrowed Bork rationale – applies to an ex-President though) And they really have no case law or solid grounds (other than being in the Executive Branch and directly subservient to the President and subject to being fired) for their decision, so I’m not sure that there is any certainty on their determination – just a certainty that Federal (as opposed to State) prosecutors would all dutifully refrain from going after the President under this apporach; even refrain from sealed indictments to be opened after he leaves office apparently.

    Second, the updated (from Bork) OLC opinion makes a pretty thorough hash out of the findings in U.S. v. Nixon IMO. They do acknowledge that the Court in U.S. v. Nixon did find a President had to respond to a subpoena in a criminal case. Now think about that.

    If the court ruled that the President must respond, what if he had said (as loyal Bushies have so often – and which is why Bush and his lawyers are 1000X worse than Nixon) — no? The OLC opinion pretty much ignores the issue of how and whether the court could compel response to process while at the same time acknowledging that the President “had” to respond.

    So do the 9 members of the Sup Ct have the ability to issue contempt against a sitting Presidnet – and enforce that contempt? If not, then how is it accurate to say the President was required to respond. If so, then how can you say the President if exempt from other judicial process or from a verdict by a jury of 12?

    I think in the end its all grey and fuzzy and fact and circumstance dependent, but what you are pointing out is what I have tried to point out with respect to Yoo and the loyal torture badge Bushies (which, after all these years, now includes anyone still serving Bush imo) the fact that his horrible decisions for all practical purposes may as well have been written by the Divine Hand, in stone and with gold. The ultimate effect has been the same and that’s mostly because of the Democrats in Congress. Harry Reid in particular.

  10. earlofhuntingdon says:

    Who would believe any one of these three? Each has so many things to hide, Chertoff most of all. The idea that they could analyze a law and conclude that it limits presidential action under any circumstance is not plausible. Saying ”No” is not in their professional vocabularies. Neither is accurately revealing what advice they gave or influenced others to give.

    What an irony: these aides envision their president as having absolute power (rationalized by defining existence as a state of war), yet hide like mammals in a dinosaurian world when their own part comes to light. Perhaps Obama will be a comet and create an environment that will allow our government to remake itself according to its original image.

  11. JohnLopresti says:

    Yeah, I was surprised how Fine built Chertoff’s case in the OIG report, and I tend to think the timing of the public surfacing of the 81pp Yoo torcha memo occurred well into the final drafts of the OIG report, plus DoD got rights of last redactor to expunge whatever would besmirch their own primary instrumentality in the WH policy to torcha. Fisher’s comments in the few pages preceding the cites in the post look obfuscatorily noncommittal much more than Chertoff’s; where decisions which would reveal Chertoff’s agency, the passages are redacted or Fine skips to a different source, losing continuity of narrative. It is nice to see that his to me unanticipated image of dissociation from the torcha policy formulation needs a closer seine by the reader. Maybe the publication of the 81pp Yoo torcha memo surprised Fine, but all rightful redactors were using the Yoo shortcut to torcha memo as a working paper. I think there is more information worth teasing from timelines in the triple sequence DTA, Hamdan Scotus opinion, MCA; plus ucmj was in revision several times over that span while congress was busy delivering workproduct nearly as permissive as Yoo’s.

  12. phred says:

    Thanks Ishmael and Mary for your responses. I am genuinely perplexed by all of this. So would I be correct then (in principle if not in probability) in saying that it is against the law even for the President to blow the cover of a spy, or commit treason, or break any other law, and that such violations could be prosecuted (if sufficient claims are established) after leaving office? Presumably DoJ would be responsible for such things and a subsequent President may tell DoJ not to pursue them, but as a matter of principle, it is not unreasonable to suggest that the President is indeed bound by the same laws as the rest of us?

    • Ishmael says:

      Yes, as Mary points out, the fact that the President is subject to laws and processes such as subpoena was pretty much the main point of US v Nixon, and even Clinton vs Jones held that the President was bound to reply to civil process with due deference being given to his responsibilities as President. In my view, the basis for avoiding indictment of a sitting President is really more of a suspension of criminal process for separation of powers reasons (the President is the head of the Executive Branch which is empowered to investigate and prosecute) than a doctrine of immunity for liability for official actions.

      • Leen says:

        “suspension of criminal process”

        Have other Presidents been held accountable for crimes after they are out of office? Or are they always given pardons?

    • darclay says:

      So what about the DOJ,are they not also breaking the laws by not bringing contempt charges against Bushco when they ignore a subpoena?

      • phred says:

        I would think so, but then IANAL. As I understand it, DoJ is the only entity who can enforce a subpoena and if they refuse to do so, I think this brings us back to my tree falling in a forest quandary above, i.e., if a crime is committed without subsequent prosecution was it really a crime? I get the feeling that this administration equates ignoring laws and law enforcement as making something legal, which I don’t believe to be a correct interpretation.

        In the hopes that Mary pops back in on this thread… I haven’t yet read the OLC opinion you linked to yesterday (plan to this weekend), but I have a couple of questions about the legal authority of OLC opinions in general. As I understand it, OLC legal interpretations have the force of law for the executive branch. So if OLC gets to decide what is and isn’t legal, has anyone ever been prosecuted for violating an OLC opinion? Secondly, if someone had reason to dispute an OLC opinion and wanted a court to rule on the validity of the OLC’s interpretation of the law, who would have standing to bring such a complaint before a judge?

        In a nutshell, I’m trying to understand what checks and balances there are on the OLC to prevent it from being an entirely independent entity with its own set of laws outside the jurisdiction of the judicial branch?

  13. phred says:

    I think both the separation of powers argument and the principle of preventing prosecutors/jurors from having the power to overturn an election are both excellent reasons to defer prosecution. However, I am obviously of the opinion that if a valid criminal case can be made after leaving office, that it should be.

    I also think it is important to use terms like legal and illegal when discussing Presidential conduct, if for no other reason than to prevent people from getting used to the notion of Presidential impunity, and ultimately unbridled monarchy.

  14. rkilowatt says:

    re parsing, etc

    The “clever strokes” theme seems inherent in much criminality:
    “… the whole atmosphere of every prison is an atmosphere of glorification of that sort of gambling in “clever strokes” which constitutes the very essence of theft, swindling and all sorts of similar anti-social deeds.” PKropotkin’s Memoirs, ca 1899

  15. Ishmael says:

    I don’t think so – Nixon would almost certainly have been charged with offences but for the pardon from Ford, but I am unaware of any other criminal proceedings against former Presidents.

  16. masaccio says:

    Let me add that Fisher and Chertoff can’t recall any discussion of specific techniques.
    Here is just one example:

    Fisher also stated that she did not recall discussing with the FBI specific techniques for use with detainees. Fisher said she vaguely remembered a meeting with then FBI General Counsel Kenneth Wainstein in which they discussed the FBI not being present at CIA interrogations, and she stated that the meeting would have related to interrogation tactics, but she said she did not recall any specific techniques being discussed.43


    However, as William Ockham points out, Nahmias says something else.

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