When Did John Yoo Start the Bybee Memo?

I’ve been puzzling over two references in John Yoo’s testimony at the House Judiciary Committee’s Assholes Who Torture hearing last summer regarding the timing of the drafting of the August 1, 2002 Bybee Memos.

The legal issues that concern the Subcommittee today–involving the interrogation of alien enemy combatants–first arose about six months after the 9/11 attacks, in which about 3000 of our fellow citizens were killed in surprise terrorist attacks in New York City and Washington, D.C.

This timing makes a lot of sense. It would put the start of the legal considerations regarding torture techniques at around March 2002, which is when Abu Zubaydah was captured.

But then later, he dates the first request for an opinion much earlier–to a few months after 9/11.

We gave substantially the same advice to both agencies. Both matters at the time where highly classified and the pressures of time and circumstances were high–we received the first request a few months after the September 11, 2001 terrorist attacks on New York City and Washington, D.C.

[Side note–I wonder if he mentions 9/11 every time he gives dates, as in, "I got married approximately 13 years before terrorists killed 3000 people in New York City and Washington D.C. I moved to Chapman University eight years after the September 11, 2001 terrorist attacks? Update–I guess MadDog’s been puzzling on this point too!]

Now, there are a couple of possible explanations for the seeming discrepancy. 

There’s sloppiness–perhaps in the second reference, Yoo was just interpreting "few" expansively so he could remind his audience of 9/11 and the pressure they were under. I don’t really buy this though, because this statement has to have been incredibly heavily vetter by DOJ and his own lawyers (note the prominence of expressions of "good faith" and  "we tried as best we could"). Given the legal scrutiny Yoo is and was under when he gave this statement in a sworn appearance before Congress, I simply don’t believe that Yoo’s lawyers would permit such an inaccuracy.

There’s the possibility, too, that Yoo is thinking of another detainee-related memo. Perhaps the most likely explanation is that Yoo is thinking of one of the still-unreleased memos published in late 2001 and early 2002, including one of the following:

November 20, 2001: John Yoo to Alberto Gonzales, on "War Crimes Act, Hague Convention, Geneva Conventions, federal criminal code, and detainee treatment"

January 11, 2002: John Yoo to Alberto Gonzales, on the Geneva Conventions

January 14, 2002: John Yoo to William Taft, on prosecution under the War Crimes Act for conduct against al Qaeda

January 22, 2002: Jay Bybee and John Yoo to Alberto Gonzales, concluding the Geneva Conventions do not apply to al Qaeda

January 24, 2002: John Yoo to Alberto Gonzales, on the Geneva Conventions

January 24, 2002: John Yoo to Larry Thompson, on the application of international law to the US.

January 26, 2002: John Yoo to Larry Thompson, on the Geneva Conventions

So perhaps when Yoo refers to the "first request," he is referring to the first request for memos that–in their collective–would eviscerate international law as it pertained to the detainees.

But I do wonder whether Yoo began Bybee One–the memo asserting that, 

Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.

–was first drafted long before August 2002? After all, we know that Yoo’s 2003 memo–which made parallel claims as the Bybee Memo did in the context of the military–was drafted a couple of months before it was published in March 2003. And as a generalized memo, Bybee One did not depend on discussions held in the wake of Abu Zubaydah’s capture in March 2002. 

I ask this question largely because of the suggestion that email evidence may show some of the opinions were originally rejected. Clearly, as early as November 2001, Yoo was chipping away any legal limits on torturing detainees. My question is, how long did it take him before he declared that, "if it was authorized by the President, it did not violate the law"?

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78 replies
  1. radiofreewill says:

    Oh, the irony, if e-mail turns out to be their Achilles Heel – the one place that they couldn’t cover-over their naked mortal conspiracies…

  2. stryder says:

    “I simply don’t believe that Yoo’s lawyers would permit such an inaccuracy”

    Who are Yoo’s lawyers?

  3. oldoilfieldhand says:

    “Yoo can’t always get what you want, but if YOO try sometimes, Yoo get what Yoo need”

  4. JClausen says:

    I don’t know who they are but I bet Yoo and Me(the taxpayers) are paying for it.

  5. TheraP says:

    Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.

    Boy, doesn’t that statement just lay the whole blame on the President?

    Right there, the stupid lawyers have made the air-tight case! The fish rots from the head down. Ain’t nobody gonna take that away from bush! OK…

    (Naturally, I disagree with the argument being made. But taken at face value, it sure indicts bush! Plus, what Condi said on Monday, that indeed bush did authorize it.)

    • radiofreewill says:

      Do you get the feeling –

      “Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.”

      that the Mentality reflected in that statement – the Belief that Bush the UE was Above the Law and Any Moral Restraint – runs through the e-mails behind all this, like a Raging River of ‘Fixing the Facts to Fit the Policy.’

      These ‘Lawyers’ – whose Professional Responsibilities include Not Defaming their Profession – were clearly True Believers in the Unitary Executive Theory. They Believed that the Unitary Executive was Above the Law in the sense that his Word was Considered by Them as More Lawful than the Rule of Law – and All Established Law – as We know it.

      All the ‘Legalizations’ are Ex Post Facto to Bush’s un-restrained declarations of Action – and just as the Torture Tapes would clearly reveal Bush the Monster, so would the e-mails behind Bybee One reveal the extent to which these ‘Lawyers’ – these Bush Sychophants – were willing to depart from the Legal Precedents of Our Constitutionally Established Law in order to build Flimsy, Malpractice-Logic ‘1% Cases’ in order to ‘Cover’ and ‘Enable’ Bush’s Crimes Against Humanity.

      If We could see behind the scenes – through the e-mails, for instance – Who amongst US doubts that We would see an Authoritarian, Ends-Justify-the-Means, Loyalty-Driven Ideology Being Rolled-Out in Secrecy through Our Government Apparatus – in Our Name – and ‘Legal Justifications’ being used to simultaneously paper-over the Power-Grabs and Cover Their Own Asses doing it?

      Proving the Wisdom of Our Founding Fathers that Fair and Honest Government requires a Check and Balance of Three Branches – versus the Age-Old Bush Model of Absolute Power, which We All Know corrupts…

      Bush ‘overthrew’ the Constitution on a pre-text – 911 – in the Name of ‘National Security’ – and took the Country back as King George. It’s just sad – but to be Expected of True Believers – that his Lawyers said it was Legal, too.

      • TheraP says:

        You’ve tied it all together with a neat bow!

        I get the feeling that these faux “leaders” actively sought willing toadies. And everything else followed. If someone stepped out of line, he or she was dropped (like O’Neill) – so as to maintain the climate of compliance. They “tested” loyalty and we’re likely to see that in the emails, as you suggest. The actual arm twisting probably didn’t happen there. But I bet they spied on friend and foe alike. So as to make the arm-twisting (a type of political torture-light) all the more effective.

        Kudos on a great comment!

        • plunger says:

          I think it best we call “arm twisting” by its legal name:

          “Blackmail”

          District of Columbia blackmail statute. D.C. Code § 22-3852 provides that:

          a) A person commits the offense of blackmail, if, with intent to obtain property of another or to cause another to do or refrain from doing any act, that person threatens:

          1) To accuse any person of a crime;

          2) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or

          3) To impair the reputation of any person, including a deceased person.

      • Mary says:

        I think you hit a lot with that.

        And it would be interesting to see any discussions on why they dropped the broad, “CIC can do anything” rationale from the generic torture memo (that Goldsmith later withdrew) in favor of going through item by item on a horror show of techniques and secretly “interpreting” things like our torture statute to mean that such things were not torture. Think what that really does. Apply it domestically and see what they are saying. It’s awful.

  6. klynn says:

    [Side note–I wonder if he mentions 9/11 every time he gives dates, as in, “I got married approximately 13 years before terrorists killed 3000 people in New York City and Washington D.C. I moved to Chapman University eight years after the September 11, 2001 terrorist attacks?]

    …heavily vetted by DOJ and his own lawyers (note the prominence of expressions of “good faith” and “we tried as best we could”).

    And might I add lots of mentions of, “But the circumstances did not give us the luxury…” and the issue of opinions “needing more time” in the same context as “no luxury”. And lots of “under the circumstances…” and, “We did our best with the information at hand.” (Let me insert the name Joe Wilson after that one.)

    Those are broad statements which need to be peeled back with specifics.

    Now, go listen to Condi again. Same language.

    Go listen to Cheney. Same language.

    The students got silent once she went on her “9-11, how many died” all with an emotional voice. I do not think the silence was due to 9-11, but at how quickly she turned and used that as her justification for her actions.

    • TheraP says:

      “Time Pressure.”

      This is something we need to hammer away at. How many professionals have to make life and death or ethical/moral vs unethical/immoral decisions under time pressure? Lots of people! All the time. And guess what? They train for it!

      If these folks are claiming not being able to think well under pressure, then they are claiming incompetence! And if they were incompetent, they should have resigned, rather than risk harming the nation!

      You’re pointing at the right issue too, kLynn.

      • Mary says:

        And that gets to the “remorseless” issue that is what has made me so angry. Even if you claim a time pressure and crunch early on, where is the remorse, the desire to allocute, the rejection of actions and willingness to accept penalty, or even the decision to stop.

        That one in particular.

        No one, not Goldsmith pulling the old memo, no one ever was willing to stand up and say, “this is wrong and has to stop”

        Instead, we get the relentless sales pitch that whether or not torture stops is a policy decision and presidential torturers are good guys and patriots. All that running side by side with the President also saying torture is wrong is the ultimate in mixed messages – but those people like Rice and Yoo who are first to rely arguments about the pressure and not knowing what it was like etc. for a part of their sales pitch will also say over and over that what they did was right and legal.

        It’s what is going on with Bybee in the articles – sell one story of the pressure leading to regrettable things, a story which REQUIRES REMORSE to be sold, and yet sell another co-extensive story, louder, that nothing was bad, nothing was illegal, nothing was torture.

        And if that means having the DOJ secretly interpret the torture statute – applicable to everyone who is detained in the hands of power, not just al-Qaeda suspects held by the CIA – to mean that none of the things they did were torture, then so be it. If that protects them, that’s all they care about. If that ruins and destroys our nation – it’s ok, bc it’s a helpful theme for them, personally, to invoke.

        The reason the time pressures and pressure from superiors etc. doesn’t sell is that for years now there has been no remorse. Rice can snicker through the abomination of the Sup Ct refusing to hear el-Masri’s case and remain viciously unapologetic, and yet she’s also allowed an alternative reality sob sister storyline of being so “pressured.”

        They all want the no time served plea deal, without having to allocute. And Obama is giving them that and more, he’s saying a President does “own” the DOJ while he is in office and you don’t even have to take a deal, you just won’t ever have to face a charge. He and Holder have tried to avoid Obama getting his own unique place in history as pardoning Presidential torturers by using DOJ to shut down any investigation.

        Holder learned from his Rich problem. What he learned was that the way to avoid the problem is to make sure the case is never brought to start with, then you don’t have people second guessing and delving into the pardon issue and quid pro quos.

        Remorseless. All of them. It’s shattering that so many are so very remorseless. It almost sends me off on a Beck-ian jag.

        • phred says:

          Holder learned from his Rich problem. What he learned was that the way to avoid the problem is to make sure the case is never brought to start with, then you don’t have people second guessing and delving into the pardon issue and quid pro quos.

          Wow. That’s something I hadn’t considered. Obama and Holder are trying to avoid prosecution, just so they can avoid having to decide whether or not to pardon? Damn. That would explain a lot.

        • TheraP says:

          Mary, your tireless, eloquent, and righteously dogged pursuit of this issue is inspiring and no thanks can ever adequately express the deep gratitude I and so many others feel.

          Bit by bit, we are parsing every phrase, every argument they make. It’s getting easier and easier to spot their fits of illogic and call them out.

          @ 25: I completely agree. I believe they used blackmail, extortion, conspiracy. Every criminal arsenal they could muster. It’s beyond disgusting! Thanks for calling that out.

          This entire group here should be awarded a Congressional Medal of Honor, starting with EW of course.

  7. Loo Hoo. says:

    OT-

    Steven Rosen and Keith Weissman had been top lobbyists for the American Israel Public Affairs Committee, an influential pro-Israel lobbying group.

    Acting U.S. Attorney Dana Boente said the government moved to dismiss the charges after concluding that pretrial rulings would make it too difficult for the government to prove its case.

    NYT

  8. wavpeac says:

    The sad thing is that Bush is likely a very impaired sick alcoholic. It doesn’t mean he isn’t accountable but the whole thing is so sad. Our country really needs to honor the constitution and never again allow any leader diseased or otherwise veer from it again.

  9. WilliamOckham says:

    The recent resurfacing of the FBI “Executive Order” email got me looking at that Nov. 13, 2001 Military Order (because I think that’s what is being referred to). It’s the first policy directive about detention (and indirectly about interrogation and torture) after 9/11. In light of what we know now, it looks very different than it did when it came out. For example, check this out (my bold):

    (e) To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.

    (f) Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.

    Section 836 of Title 10 says:

    (a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.

    And just who was subject to this order:

    (a) The term “individual subject to this order” shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:

    (1) there is reason to believe that such individual, at the relevant times,

    (i) is or was a member of the organization known as al Qaida;
    (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

    (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and

    (2) it is in the interest of the United States that such individual be subject to this order.

    (b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4.
    (c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense.

    And how will they be treated:

    Any individual subject to this order shall be –

    (a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;

    (b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria;

    (c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;

    (d) allowed the free exercise of religion consistent with the requirements of such detention; and

    (e) detained in accordance with such other conditions as the Secretary of Defense may prescribe.

    There we have all the elements of the torture regime. Trial by military commission with no rules of evidence. Detain anyone anywhere (except for U.S. citizens, for now) on the President’s say so. Treat them ‘humanely’, but only according to the Administration’s definition, not according to existing U.S. laws, constitutional requirements, treaty obligations, or human decency. The order never explicitly states what’s going to happen, but it was clearly written with all this in mind. Here’s the giveaway:

    submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary of Defense if so designated by me for that purpose.

    That says, in effect, I, George W. Bush, can kill anybody I want if I decide they are a terrorist.

    • behindthefall says:

      That made him what we think of as an American President in name only; functionally, he became an absolute monarch, an emperor, a tsar, a kaiser, a shah — there are so many names for it.

      Whose idea was it, though, that that would be desirable? Certainly not GWB’s, originally. Does this go back as far as Nixon? Farther?

      • rkilowatt says:

        btw “Tsar” and “Kaiser” are dialect for “Caesar”. TPTB glory in their status…are actually unable to see it any other way.

  10. oldtree says:

    Chapman University. There is one of the jokes of southern California. They were the butt of the educational world when I first heard of them. It was the place to send your rich child to get a paid for grade and degree. I don’t imagine much has changed. I wasn’t so glorious at first. Their ego abounds as they changed the name from College to University without any reason.
    Sorry, but Orange County, CA doesn’t have enough jokes. Rick Warren, Robert Schuler and his crime family building the crystal penis, or chapman school of embalming and righteous partying.

    • readerOfTeaLeaves says:

      And it’s worth noting in an historical footnote that Orange County has long been a hotbed of real estate speculation; IIRC, the Argyros family of real estate speculators is a major funder behind Chapman (which, FWIW, is a lovely campus in a very pretty little town).

  11. scribe says:

    EW – I think if you go back to Yoo’s pre-OLC law review articles on Executive Power, you’ll see that he’s got a substantial body of work out there prior to coming into the OLC. A lot of that stuff (which criticized Clinton’s uses of Executive power, because he was a Democrat) could have quite easily been dusted off and turned around. If he was anything like the ordinary run of the mill law professors and appellate lawyers I’ve been around, a lot of the law he knew well enough to cite in his sleep.

    I know that, in my own practice, there have been times when I’ve done something like that – written entire briefs without cracking a book until the end because I either had it all in my head or had already saved a lot of it and had only to cut and paste, and I had encountered the same issues time and again. Back in the day when I worked in a firm which defended car accident cases almost exclusively, I didn’t have to read law sometimes for weeks on end because I had 80 or 100 files which were all the same.

    And I can go to the wall o’ books in the law library and pull cases that hit the exact points I’m looking for, without using what lawyers call “finding aids”. It looks preternatural, but it’s really just experience.

    Yoo is probably the same way with executive power cases and statutes.

    • bmaz says:

      Heh, well if that is the case, he sure forgot to cut and paste one hell of a lot of important discussion and precedent.

      • scribe says:

        Well, don’t you when writing a brief tend to omit precedent which would hurt your argument, and structure your argument so you can say later that you didn’t omit it in bad fatih? Because these were briefs, not expository memoranda – they knew what the law was but wanted to reach a predetermined result.

        • bmaz says:

          I have never omitted something the weight of a Youngstown and some of the other cases these guys have blithely treated as non-existent, no. You can do that with many cases and annoyances, but not the seminal case of entire fields. I know exactly what they wanted to do, and they did that. It was unethical and unconscionable.

  12. JohnLopresti says:

    This seems OT with respect to discovering a date for the startup of the Yoo research project into legalizing cruelty. However, looking at the week after the terrist attacks, there is MCohn’s April 23 2009 review of the SASC report’s description of a purpose of the tocha of ksm and az being attempts to obtain ~signatures on statement which could be used for a fabricated purpose similar to the intended effect of the Niger 16 words claim. On November 9 2006 Cohn described a Rumsfeld September 15 2001 meeting urging unilateral invasion of Iraq. I wonder what the colloquy was at DoD that week, whether leadership already had a plan for ‘humint’ gathering that would draw DoJ’s olc necessarily into the drafting process forthwith. It takes a while to write a footnoted 40pp paper. I wonder if torcha was verbalized as early as that strategy meeting on September 15.

    • readerOfTeaLeaves says:

      Interesting. Lines up with EW’s Ghorbanifar Timelines also, IIRC.

      On a minor note, the US withdrawing the AIPAC case will now be the gift that gives on giving to conspiracy theorists, as well as befuddled citizens, everywhere. Always nice when the government dishes up topics guaranteed to result in greater cynicism… *sigh*

      • klynn says:

        The techniques of developing evidence from the records of cellular phones, using mapping programs that plot information in a logical format, and mining data from a variety of sources can prove instrumental in solving difficult and complex cases. Although law enforcement organizations throughout the country may use other methods, the Violent Crime Task Force in Detroit, Michigan has fine-tuned this three-pronged approach over the years, which has resulted in a successful conviction rate.

        (my emphasis)

        I sure would like to plug in EW’s “convergeing timelines” into one of those mapping programs…

        In historical studies, converging timelines can serve as a line of proof.

        • readerOfTeaLeaves says:

          Well, the more dots that I connect, including tax havens, offshoring, what I can see of the incredibly dumb code underlying the CDS’s and CDOs, the problems that Spitzer’s outing suggests in terms of corruption of pension funds (including state pension fund regulators trying to complain to SEC and getting shut down in 2007), the fact that no one in the Bush Administration OR in Congress put funding and resources into FBI positions for mortgage fraud… it looks like more criminal conduct than I get my head around.

          And that doesn’t even add in eastern Europe, or the no-bid contracts in recent wars, nor Wall Street/AIG/London spec market.

          Those law enforcement types have their work cut out for them, and since I don’t care to live in a world purloined by rampant speculation, protection rackets (government-sponsored or otherwise) and Mafia finance rackets, I wish them all the best.

          • klynn says:

            Well, the more dots that I connect, including tax havens, offshoring, what I can see of the incredibly dumb code underlying the CDS’s and CDOs, the problems that Spitzer’s outing suggests in terms of corruption of pension funds (including state pension fund regulators trying to complain to SEC and getting shut down in 2007)

            On that comment, you may find this blog post enlightening in terms of the Chrysler BR. Read up on the New York Common Fund and then go to the end of the list of investors.

      • posaune says:

        you know, I keep seeing this image of emptywheel’s house, with timelines drawn all over the walls. Pretty soon, she’ll have to move to bigger digs to fit all the convergence…. you know time lines crawing up the walls, ceiling, across the floors, through the joists and lath. And when she’s connected them all, we’ll get The Rise and Fall of the Bush Reich.

  13. plunger says:

    Is there any evidence related to Chertoff’s role? It sure seems as though he had been working on crafting the USA Patriot Act PRIOR to 9/11:

    http://www.usatoday.com/news/w…..side_x.htm

    Chertoff played key role on 9/11
    By Kevin Johnson and Mimi Hall, USA TODAY

    WASHINGTON — In the minutes after the Sept. 11 terrorist attacks, while Attorney General John Ashcroft was rushing back from Milwaukee, Michael Chertoff was calling the shots.

    Chertoff, then chief of the Justice Department’s criminal division, breached the prickly territorial lines that have long divided the Justice Department from the FBI. From a fifth-floor office at FBI headquarters, above the streams of panicked people who flooded Pennsylvania Avenue, he set up shop in the bureau’s crisis center. For the next 20 hours, he directed the government’s initial response to the most lethal terrorist attack in U.S. history.

    Chertoff would spend the next two years serving as a central figure in formulating U.S. anti-terrorism policy — from the effort to secretly detain hundreds of Middle Easterners in the USA, to increasing the FBI’s authority to conduct domestic surveillance at religious gatherings and other public events.

    Civil rights advocates say Chertoff’s record raises serious questions about his fitness for the job. Gregory Nojeim, associate director of the ACLU’s Washington legislative office, said Chertoff’s tenure at Justice is the most troubling. Chertoff was one of the architects of the USA Patriot Act, which provided law enforcement broader surveillance authority.

    “Michael Chertoff’s record suggests that he sees the Bill of Rights as an obstacle to national security,” Nojeim said. The nomination “should spur a search of his entire record on civil liberties.”

    And in case you had any doubt as to Israel’s ability to hold back damning headlines (control the media) until massive fear mongering headlines like “London Terror Scare” (think Lieberman’s loss to Lamont and the arrest of spy Ariel Joseph Weinmann) or “PANDEMIC” demote otherwise massive stories to page 13… There are two out today. One is about Israel finding itself not guilty of War Crimes in Gaza. Here’s the other bombshell (hidden by a pandemic scare):

    Charges against Israeli lobbyists in espionage case to be dropped

    http://rawstory.com/08/blog/20…..o-dropped/

  14. Mary says:

    I haven’t read Karen Greenberg’s Least Worst Place, but I think that Horton’s piece from 4-29 at TPM’s Book Club may give you a part of the answer and context. I had no idea that Taft had been so candid to anyone for the record.

    In any event, in Nov 2001 Pakistan had al-Libi and we were involved in his questioning. By early December there were the issues, complete with pictures, of the handling of Lindh. SERE inquiries were being made by Dec. 2001 By Jan 2002 there were complaints coming in from GITMO about violations of Geneva Conventions.

    So why is it that in January Yoo and others were pushing so hard to make ways to get around the Geneva Conventions and disavow their application? Using Garzon’s statement, reworked, I think we have all known intuitively that real reason was to be able to not only abuse detainees but to use abuse as evidence in a kangaroo court proceeding. But surely no one at DOJ would have been stupide enough to say that – right? Surely no one would have been stupid enough to say – we have to take the position that the GCs don’t apply, because otherwise we have a problem. If we don’t find a way out from under the GCs, we’ve committed war crimes.

    Well, I’ve always thought that the tenses and context of the Gonzales Jan 2002 memo indicated that there might have been discussions on that very point – his reference to using the “illegal enemy combatants” designation as a defense if future administrations sought war crimes charges seems to be talking about *for things we have already done* And there is a reference in one of Taft’s memos to all the lawyers being in agreement on the war crimes issue – can’t recall exactly what he said (but after reading Horton’s piece I am thinking that Taft was getting at a conversation where he had tried to sell them on adopting the GCs going forward and if they tried to follow them they wouldn’t need to worry about war crimes issues for the few things that had been done, to that point in time.)

    In any event, apparently Greengate’s book has this which has to have come from Taft:

    ,,,a passage in which Will Taft (who emerges from all of this as a minor hero who genuinely believes the values that he articulates) relays a discussion he had with John Yoo. He didn’t understand why there was such ferocious pushback against the Geneva Conventions–why not just accept and live with these standards? America had done so for fifty years. The room got quiet, and Yoo said, “We have an Article 17 problem.”

    Lord.

    An open acknowledgement that they had to write around the GCs because otherwise they had a war crimes problem. Article 17 provides “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war.” Even Horton in his piece seems to be giving the benefit of the doubt as to thing that would happen in the future (he says something about Yoo not wanting to have to agree to that kind of standard as if they were looking into the future) but it seems much more likely to me from that statement that they are concerned about something that has already happened. And al-Libi seems to me to be a prime issue on that front. If he was already being subjected to coercion, with very likely direct participatiion “up chain” because he was deemed to be valuable – very likely direct participation by the OVP bc Cheney had the agenda on what he wanted them to get out of al-Libi – then Yoo might just as easily have meant, *OVP/WH have been ordering abuse of al-Libi to get him to admit to Iraqi involvement with al-Qaeda and people know about it, so if we apply the GCs, OVP/WH are directly implicated in war crimes*

    As those became war crimes that were used for political purposes to launch the Iraq war and created thousands of dead and over a million of refugees and tens to hundreds of thousands of maimed and wounded, it became more and more important to keep the fiction in place.

    Who knows what was destroyed, what was said and who was ill advised enough to put things into emails, but if the emails show that they were considering specific, existing actions that were war crimes under the GCs and using that as the basis for deciding to issue opinions that wrote around the GCs, that would be pretty devastating.

    • phred says:

      Thanks for that Mary. I read the Horton piece the other day, but I couldn’t make sense of this sentence:

      The room got quiet, and Yoo said, “We have an Article 17 problem.”

      As you note, in Horton’s piece it seemed to be that they were looking ahead, but that doesn’t make sense from the point of view of why the pushback Taft referred to was so “ferocious”. If read in the present tense “we have a problem”, that means something has already occurred. This makes a lot more sense to me.

      Still, if that is the case, it boggles the imagination that if they already have a problem, they decide the best solution is to pretend they don’t and continue to engage in conduct that violates Article 17. Evidently, if you make things worse for yourself, but get a bunch of lawyers to say Article 17 doesn’t mean what you think it means, then the problem goes away? That’s pretty delusional.

    • emptywheel says:

      Mary

      I agree 100%.

      I’ve also been thinking that, at first, CIA intended to rendit everyone major (Tenet always loved the collaboration with other intell agencies, no matter how corrupt). But then with al-Libi and undoubtedly some others, things were out of control both in the sense of not knowing where bodies were going to end up and in teh sense of needing to control at least the HVDs. So then they moved, for a time, to US detention and torture. But after the problems with that became clear, and after CIA caught up to the FBI’s knowledge on 9/11, they decided it was easier to just assassinate any HVDs.

  15. plunger says:

    Speaking of timelines:

    TALLAHASSEE, Fla. — Florida Governor Jeb Bush signed Executive Order 01-261 September 7, 2001, four days before the WTC tragedy of Sept. 11, which paves the way for a declaration of martial law in his state. The governor, in his EO, delegated to, “…the Adjutant General of the state of Florida all necessary authority….to order members of the Florida National Guard into Active Service.”

    http://proliberty.com/observer/20011008.htm

    EXECUTIVE ORDER NUMBER

    01-261 7th day of September 2001.

    Section 3.

    The Florida National Guard may order selected members on to state active duty for service to the State of Florida pursuant to Section 250.06(4), Florida Statutes, to assist FDLE in performing port security training and inspections. Based on the potential massive damage to life and property that may result from an act of terrorism at a Florida port, the necessity to protect life and property from such acts of terrorism, and inhibiting the smuggling of illegal drugs into the State of Florida, the use of the Florida National Guard to support FDLE in accomplishing port security training and inspections is “extraordinary support to law enforcement” as used in Section 250.06(4), Florida Statutes.

      • plunger says:

        Not that I’m aware of.

        None were as quick to do this in the aftermath either:

        Immediately after the second WTC tower fell, Governor Bush signed EO 01-262 to make Florida the first state to declare a state of emergency though his state did not experience any terrorist events that day. Governor Bush is reportedly the only governor in the U.S. outside of NY and D.C. to make a declaration of martial law in the wake of the WTC tragedy. Interestingly, Governor Bush’s declaration came before authorities in New York or Washington, D.C. declared states of emergency.

        http://proliberty.com/observer/20011008.htm

        It’s east to be first, when you, and your Dad, and your brother, and your cousin (Marvin) know in advance.

        http://whatreallyhappened.com/…..urity.html

        • Rayne says:

          Convenient, too, when your brother plans to be reading My Pet Goat in a Sarasota FL classroom on the morning of September 11th…

  16. Leen says:

    ot
    AP reports the Aipac espionage trial dismissed. What timing just days before the Aipac conference. What power What influence, this story has barely been touched by the MSM (Rachel did a mock report a while back), Rosen takes out Charles Freeman, Harman’s involvement brushed under the table, trial dismissed all before the conference.

    Just watch the MSM will be all over this the next week. We will hear more about this investigation and trial now that it is over than during the last four years. What Power..What Influence
    http://jta.org/news/article/20…..rs-dropped

    Reached by phone, Rosen told JTA he was “ecstatic” and was “still absorbing a life-changing moment.” He said he had been on the phone Friday morning nonstop with family and friends.

    “There was a great injustice here, but thank God we live in a country where the courts can correct this kind of injustice,” he said.

  17. plunger says:

    Today on Raw Story:

    GOP IT guru’s sisters question events surrounding his death

    The sisters of Michael Connell, a GOP IT consultant and former associate of Karl Rove who died in a plane crash last December, are now questioning the circumstances surrounding his death.

    “Shannon Connell of Madison says her brother Michael rarely talked about work,” a local Wisconsin paper reported Thursday. “She knew he ran an Ohio company called New Media Communications that set up websites for Republicans including former President George H.W. Bush and Florida Gov. Jeb Bush. But it wasn’t until after he died last December, when the small plane he was piloting crashed, that she learned via the Internet of his tie to a voter fraud case and to allegations that presidential adviser Karl Rove had made threats against him.

    http://rawstory.com/08/blog/20…..his-death/

  18. MadDog says:

    For once I can say I was ahead of EW. Talk about the unexplainable mysteries of the universe. *g*

    From this April 27 comment of mine:

    Yoo’s description of his timeline here differs it appears from what he wrote in my previous comment:

    …we received the first request a few months after the September 11, 2001 terrorist attacks

    (My Bold)

    So which is it Yoo?

    …about six months after the 9/11 attacks…

    Or

    …a few months after the September 11, 2001 terrorist attacks…

    “About 6 months” does not seem to comport with “a few months” in my lexicon.

  19. earlofhuntingdon says:

    The overwhelming “legal” preparedness suggests that using armed force was the first and only response considered by this administration. It also suggests that armed force would be divorced from its usual diplomatic partners – except for the blackmailing of as many countries as possible into joining the Coalition of the Billing, the banner under which the administration launched its wars in the Middle East.

    The preparedness is also consistent with its interrogation priorities. It looked not for networks, ops and plans per se, but for connections with Saddam Hussein’s Iraq.

    The January 24, 2002, memo to Larry Thompson has what I regard as a loaded title: on the application of international law to the US. The title seems innocuous. But the usual framing is how international legal standards, such as those expressed in treaties, become part of US law, and then what those laws are.

    The difference is this. Yoo’s title suggests that his memo describes whether foreign or international laws apply to US Government-sanctioned conduct here or overseas. The second describes norms that might have originated elsewhere, but which have become US law. Neocons find the first notion laughable, but have to immunize themselves from the second.

    Yoo’s title, and no doubt the memo’s substance, would be a way for him to deem an entire set of laws as irrelevant to US actors.

    • Mary says:

      And wouldn’t SOFA agreements get a little more attention if the countries who agreed t them had an on the record, memo from the US Dept of Justice, saying that US military, as an arm of the President as CIC, are not subject to any laws or treaties (just Presidential policy decisions) in their overseas actions.

      I have to think that a population who might already be unhappy about a US base presence, and mroe so unhappy that your gov has agreed to allow the US presence to be exempt from having to respond to local authorities but it’s ok, bc they are agreeing that they will make sure that those guys are subject to US law — to then have it come out that US law means that members of the US Exec branch/military aren’t subject to the GCs, CAT, etc. if they are overseas.

      OT – on the ‘name that justice’ Chemerinsky would be great. Not likely, but great. Obama has shown such a proclivity to use his inner circle for everything (he’s on his way to creating his own bubble) that “Cass and Elena” are believable, but she’s already involved now in a lot of things she’d have to recuse on and that means one less vote – although on issues like torture she’s in Obama’s camp so it’s not like it’s a vote that would have much to do with justice.

      Koh would be wonderful, but that’s not even going anywhere at State.

      I’m basically resigned that it will be an ugly fight to get someone that I’d just as soon not see there go on anyway. Lots of Kabuki.

      I’m still unconvinced that Obama really even wants Dawn Johnsen, much less wants her on now while he’s still coordinating his torture investigation avoidance strategy. He saves face with his base and still gets by with doing whatever he damn well pleases with no one raising objections if he lets it be a story of Republicans and Blue dogs. If Emmanual went out and twisted arms and bull dogged, she’d be in. I think it suits needs for her to not be in, and those aren’t wholly Republican needs.

      • earlofhuntingdon says:

        I agree with you regarding Dawn Johnsen’s nomination. The lukewarm support from our Communicator-in-Chief does not suggest he is really behind her, or that he’s disappointed that her stalled nomination delays remaking the the OLC (and investigating its past misconduct).

        Is she a sacrificial lamb that Rahm Emanuel will let the necons skewer for their own enjoyment? Why give them a freebie when it demeans Ms. Johnsen and the whole liberal segment of the Democratic Party? It’s nonsense on stilts.

        It also ups the neocons’ testosterone level, already perilously high, and will spur them to greater efforts to derail ANY Obama Sup. Ct. nomination (unless it’s a clone of Alito). I suppose Rahm might think he has a deal to throw in the towel on Johnsen in exchange for a 60th vote on a Sup. Ct. nomination. He should remember that Republicans keep as many promises as Hitler.

        Regarding the idea that no foreign/international laws bind the US, it’s worthwhile also to consider its application to the more than one hundred thousand armed contractors employed by the US to wage its wars. I don’t believe that Rumsfeld disagreed with Shinseki’s estimation of the size of force required to win the war and occupy Iraq. Rumsfeld knew his troop force would be inadequate and must have been counting on an equal number of mercenaries. The legal foundations for their claimed lack of liability were laid early, too.

        • Mary says:

          I think the contractors are a good point. Rumsfeld and Cheney hadn’t had all that much success with real JAG and real military guys, but they both knew you could buy whatever you wanted with the US treasury. Why have to deal with an independentish military with all those pesky, Congressionally established codes and guys who knew you for the frauds you were, when you could go buy Prince’s boys who would do whatever you wanted, whenever, however. They were both more comfortable with purchased v. earned loyalty.

          • earlofhuntingdon says:

            “I have the utmost faith in you Mr. Corso. There’s nothing more reliable than a man whose loyalty can be bought for hard cash.”

            – Boris Balkan, The Ninth Gate

  20. susiedow says:

    Timing wise, CIA agent, John Micheal Spann, was killed during the prison riot at Mazar i Sharif in Afghanistan on November 25, 2001. He was there questioning prisoners. The warlord, Dostum, gave Spann’s father a videotape of the interrogations just prior to the riot.

    • Mary says:

      I didn’t know that about the interrogation video.

      Dostum has been tied in to so many war crimes allegations it makes your head spin. He shifted from side to side to side and was the guy (which you probably know since you seem to know a lot more about his involvement than I do) who did the roundups of people into the unventilated metal containers for shipment to the US (apparently he was being paid by the head) and as they were suffocating and screaming they shot into the container “to give them airholes” and killed and wounded several. Among the survivors were some Brits and golly gee – using our “enhanced interrogation” techniques, we were able to get the Brits to admit to being the other men in a picture with Bin Laden. Imagine the coincidence of that – the only British nationals to survive Dostums death trucks and we manage to get them to confess to being the previously unidentified men in the Bin Laden picture.

      BOOYAH for enhanced interrogation and fate, eh?

      Except there was that problem of MI5 having to piss on the parade with the info that, given the picture’s provenance, there was no way in the world of reality those guys could have been in that picture. Still, what a win (temporarily) for the confluence of fate and torture.

      Oh well – Dostum was allowed to bury the containers with the bodies in them and the US just ignored the whole thing. Then during the election season, Dostum got active again. Apparently no one gave him the memo that Obama liked war criminals just as much as the last President and he was a bit worried so, with US troops stationed 3 miles away, Dostum began digging up the containers and destroying the bodies and evidence buried in them. Widely known and reported and lots of groups begged the US to intervene in the destruction, but we didn’t.

      • susiedow says:

        Information about the videotape has been quoted in a number of news articles, etc and repeated by Spann’s father in interviews. Here’s one example complete with a transcript of some of the videotaped interview with John Walker Lynd just hours before the riot starts.

  21. Mary says:

    OT – bmaz, further to the discussion on the Abu Ghraib guards, the appeals are in the works.

    So there’s one more for Obama. Why are you letting CIA agents walk, while you keep the soldiers in prison. Are you going to pardon them and let that be your message to the Muslim world on abuse by US troops of non-terrorist Muslims, or are you going to continue the scapegoating and let that be your “support the troops” message

    Spin the political wheel.

    Graner remains locked up at Fort Leavenworth, Kan., about halfway through a 10-year prison sentence for detainee abuse, assault and dereliction of duty. His lawyer said this week that he is drafting appeals arguments centered largely on the revelations in the memos and a newly released congressional investigation into the interrogation practices.


    Graner and other defendants … were blocked by military judges from calling senior U.S. officials to the stand at their trials in 2004 and 2005. The government would not acknowledge any policy or procedure that could have led to what the world saw in the photographs.

  22. radiofreewill says:

    Imvho, the battle over Dawn Johnsen is actually a proxy-war in the battle over the OPR Report.

    The Goopers know that the OPR Report won’t be released until there is a confirmed head of the OLC.

    They obviously know what’s in the Report and don’t want it released – so, they’re fighting Dawn Johnsen in order avoid, for as long as possible, a Report that is very likely to Point Directly at Bush, and the Goopers themselves, as playing the Ex-Post Facto Legal Construction Game – and Completely Un-Ravel Any Good-Faith Defense they may have for All the Evil they put on US in the name of keeping US ’safe.’

    Confirmation of Johnsen = Confirmation of Bush Bad Faith

    • emptywheel says:

      I don’t think it’s over OPR (OLC doesn’t have oversight over that). I think it’s over the wiretap memos that are still in place and in operation. Once Johnsen gets in, Obama may well have to curtail the wiretap program.

  23. DeadLast says:

    So if Yoo and Bybee were to get together for dinner over the next few days, what do you think they would talk about? Both of them are in Southern California. I wonder if they have gotten together and whether thier phone lines are tapped.

    Oops, did I give away a State Secret?

  24. klynn says:

    A blast from the past, written by Sen Kennedy, came to mind as the Dawn Johnsen confirmation hits stalls…

    We note that Mr. Bradbury’s nomination has not moved forward in the Judiciary
    Committee because of serious unresolved questions about his role in the NS A warrantless surveillance program. As you know, the Justice Department’s Office of ProfessionalResponsibility (OPR) last year launched an investigation into the conduct of Justice Department attorneys who authorized the NSA program. President Bush personally denied security clearances to the OPR investigators, effectively shutting down the investigation.Documents provided to the Senate Judiciary Committee indicate that OPR wasinvestigating whether OLC engaged in misconduct while Mr. Bradbury was acting head of OLC. Our view is that it is inappropriate to proceed with Mr. Bradbury’s nomination before the OPR investigation is completed and Mr. Bradbury is cleared of any wrongdoing.

    Please respond to the following questions:
    • What is the legal basis for Mr. Bradbury effectively serving as the head of OLC
    more than 210 days after the return his second nomination?
    • Under whose supervision was the July 10th OLC memorandum issued?
    • Will you direct the Office of Professional Responsibility to investigate whether Mr.
    Bradbury improperly performed the functions and duties of OLC Assistant
    Attorney General?
    • When does the President plan to withdraw Mr. Bradbury’s nomination and submit a
    new nominee for Assistant Attorney General of the Office of Legal Counsel?

    Remember this EW?

    • emptywheel says:

      Yup. They tried pushing that about 10 different ways, but it never worked. Finally, they had to end Jim Webb’s and Ben Cardin’s vacations permanently to prevent a recess appointment.

    • Leen says:

      Klynn did you hear the Aipac espionage trial dismissed today,just two days before the Aipac conference starts on Sunday.

      So reminded of what Mearsheimer said to me when I asked him whether the U.S. would ever put pressure on Israel to sign the NPT (he was a guest at one of Ohio Universities Baker Peace Conferences.) After I had asked Micheal Ledeen that question and he had avoided the question and several others that I put in front of him.

      Mearsheimer’s response was “they own us”

  25. klynn says:

    Yes,

    I saw your post earlier and meant to comment by I have been at a loss for words. It has been quite the disturbing news. Long term, risky news for AIPAC and most of all, the US.

    Now, lets see what happens with the libel suit Rosen filed against AIPAC… Dropping it will tell all and potentially serve as evidence.

  26. JasonLeopold says:

    Hi there. This may help answer EW’s question. In his book, War By Other Means, Yoo wrote that in December 2001 “senior lawyers from the Attorney General’s office, the White House counsel’s office, the Department’s of State and Defense, and the [National Security Council] met to discuss the work on our opinion” regarding whether the Geneva Convention applied to members of al-Qaeda and the Taliban.

    “This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism,” Yoo wrote. “Meetings were usually chaired by [former White House counsel] Alberto Gonzales…his deputy, Timothy Flanigan, usually played the role of inquisitor, pressing different agencies to explain their legal reasoning to justify their policy recommendations.”

    Yoo wrote that the Defense Department was represented by its general counsel William “Jim” Haynes, the State Department by legal adviser William House Taft IV, and the NSC by John Bellinger, that agency’s legal adviser.

  27. radiofreewill says:

    Krauthammer has a ridiculous piece up at the WaPo – a Torture is Bad, with two exceptions (ticking time bomb and high value detainee) apology for Bush – two scenarios where those terrorists ‘make us’ Torture them!

    But neither of these scenarios seem to account for – nor have they vindicated, in any meaningful way – KSM being Waterboarded 183 times in March, 2003.

    The two scenarios Krauthammer posits have about a 1% ‘fit’ on the facts of 183 serial ‘kill and resuscitate’ Waterboardings.

    But, what if Bush’s Motive for Waterboarding KSM was Revenge? Isn’t that one of the All-Time Leading Reasons why Torturers Torture – to get inhumanly, painfully ‘even’?

    I went to an authoritative site – iCasualites.org – anyone can check my work, and found that sometime during March 29th, 2003, the Total Coalition KIA between Afghanistan and Iraq – the month KSM was Waterboarded – was 183.

    Afghanistan – 103

    Iraq – 80

    Now, I ask you, would a Monster exact Revenge along the lines of 1 Waterboarding for each Coalition KIA?

    And, If so, what does that say about Bush’s Twisted Mind? He truly Conflated 911 with Iraq – Waterboarding KSM for Coalition Deaths in Afghanistan (Al Qaeda) and Iraq – which had Nothing to do with 911.

    So, if Krauthammer can find two 1% Explanations for Bush’s Torture, I wonder how he would feel about a 99% Correlation to Revenge?

    And, further, in his Blind Rage for Revenge, what Bush ’said’ through KSM was that he wasn’t just out to kill Al Qaeda – he was out to kill Muslims – they were ‘all the same’ to him.

    • Aeon says:

      Krauthammer has a ridiculous piece up at the WaPo – a Torture is Bad, with two exceptions (ticking time bomb and high value detainee) apology for Bush – two scenarios where those terrorists ‘make us’ Torture them!

      Krauthammer is really pushing it with this:

      Did it work? The current evidence is fairly compelling. George Tenet said that the “enhanced interrogation” program alone yielded more information than everything gotten from “the FBI, the Central Intelligence Agency and the National Security Agency put together.

      Fabulous!

      The intelligence budgets of the components of the National Intelligence Program (NIP) he mentions above are expensive — FBI = 1.5 billion, CIA = 6 billion, and NSA = 8 billion (2007 estimate, actual amounts classified).

      This means that we can shut down all of the intel programs of the above and save a bundle by hiring a few dozen EIT specialists to torture a few people now and then without losing any intelligence coverage or capability.

  28. JasonLeopold says:

    I don’t have any additional insight into the contractors. Ali Soufan, the FBI interrogator, wrote in his NYT column that most of the CIA people doing the torture were contractors. But Jane Mayer, in her book The Dark Side, has excellent background information about Mitchell and Jessen and provides great insight into how they were selected.

  29. Mary says:

    Suskind talks about there being struggle between Tenet and Rumsfeld, with Rumsfeld originally wanting CIA to get stuck with handling everyone in blacksites, all of what became the GITMO transfers as well.

    One thing that I think is worth keeping in mind is where things stood on the rendition front at the time. The US has long accepted the right to bring someone to face trial in the US by use of extrajudicial means, like rendition. That recognition doesn’t “legalize” actions in a foreign country that might be against the law there, but more so makes it no defense to someone who is facing charges in a US criminal court that they were brought before the court from another country without there being extradition.

    What had begun under Clinton was a process of doing something else – we went to Egypt and a lot of the al-Qaeda we were looking for at that time had Egyptian ties – they either were Egyptian or had Egytian warrants outstanding or had something that we could convince the Egyptians to issue a warrant for. So we started a different process – where we extrajudicially went into country A and snatched people from there (or got local police or intel to hand them off to us) and we didn’t take those people to the US for a trial. Instead we gave them to another country (Egypt prominent) that had a warrant or claimed jurisdiction over them due to citizenship.

    A couple of things at this point. What was the legal basis for those actions? At that point, the Clinton renditions, you were still talking about rendition to a trial somewhere, but to a trial in a country that was on our State Dept lists as sponsoring torture and that typically tortured a confession out of someone, then used that as the evidence at trial for a speedy judgment. There were no OLC memos that we know of supporting those “extra-ordinary” renditions. Instead, the only thing I know of is Scheuer’s claim that he talked the program over with Mary Jo White (then USA for SDNY) and got her input and ok, based on the existence of an Egyptian warrant as the fig leaf.

    So going into 9/11 – it’s possible that’s all that would have been out there on that aspect. I asked Mayer about this in a roundabout way when she was “virtually here” for her bookclub bit and she responded but to the side of my question, just saying something like White didn’t believe that US law really did what it needed to do vis a vis going after terrorists.

    Then they got their best prize to that point, al-Libi. Pakistan was happy to hand him off to us, extrajudicially, but then what? Well, that damn DIA got in the CIA’s game and started saying – this guy probably isn’t even al-Qaeda per se (more like a guy here in the states running some paramilitary training camp that just so happens to have a lot of the participants who belong to white supremicist groups, but who isn’t running the camp for any one group or claiming membership in any one group). And instead of letting the CIA plant whatever Dick wants into the guy, the DIA is looking at what is going on in Afghanistan as a real honest to God search for Bin Laden (not an excuse for Iraq) and they are trying to get good intel.

    What to do – well, that’s when the CIA sends al-Libi to Egypt. Only … Egypt couldn’t even cook up a warrant grounds for him.

    So the CIA trumps up a claim that al-Libi is Egyptian. Meanwhile, the FBI (who the CIA doesn’t want to get him) is pretty damn sure he’s Libyan. At that point, it looks to me like the CIA is still trying to find a way around handing off someone to torture and White’s ploy of getting a warrant from the other country isn’t working, so they just cook up the story about him being Egyptian to have some claim.

    What I’ve never seen anyone do, and would like to, is to get Albright for the Clinton era Egyptian renditions, and Powell then Rice for the Bush renditions, to pony up on their roles. Because as best I understand it (and I’m not any expert and may be wrong) the “out” under the CAT and our then existing rules and regs on turning over someone to a nation that’s on the torture list is that you get the Sec of State to negotiate assurances with the recipient that they won’t torture.

    Was Powell consulted on al-Libi? Did he talk to Egypt and get assurances on al-Libi? Were they all worried about Taft and that he would recommend against it or that Powell just wouldn’t play along, so they cut them out of the loop and used a trumped up claim that al-Libi was Egyptian as their cover?

    One thing the torture memos point out is that threats to (and certainly follow through on) turn over a person to a torture sponsor or to turn over family members to such a sponsor is very clearly prohibited. So that issue is not tackled in the memos I’ve read. But it was not only squarely presented in the al-Libi case, but has come up over and over (IIRC, Cloonan mentions that the CIA also told al-Libi as they were loading him up that they were going to go find and rape his mother; Higazy was told his sister was going to get picked up by Egyptian authorities -impliedly to be raped and tortured; Qhatani was told his mother would be brought and dumped alone and unprotected with the male detainees on GITMO; KSM was told his children were going to be abused, etc.

    Who knew that to be a patriot you had to have such rape/child abuse fetishes?

    Anyway – I think the cia just deliberately made up the Egyptian citizenship story. Then, when it was an election year and they got a bit worried, they got him back. Once Bush was re-elected, they disappeared him permanently, with stories that he was sent back to Libya probably indicating an involvement of someone like Kappes who was handling Bush’s Libyan detente ith Qhaddafy.

    And right now with Pakistan imploding Obama needs Kappes, or so he might think.

  30. JasonLeopold says:

    sorry. I forgot to add in my previous comment about EW’s question that John Yoo wrote in his book that that in January 2002 he and the other administration officials, such as Addington and Haynes, who participated in the December 2001 meetings about the drafting of the torture memo took a trip to Guantanamo Bay to observe the interrogations of several detainees

    Here’s how Yoo described his trip to Gitmo

    “A gust of warm, humid air embraced us as we disembarked at the U.S. Naval Base at Guantanamo Bay,” Yoo wrote in his book. “I was the junior person on the flight among the senior lawyers there from the White House, Departments of Defense, State and Justice.

    “The group of us who landed that day had no idea that the ‘front’ in the war on terrorism would soon move from the battlefields of Afghanistan to the cells of Gitmo.”

    “When our group of lawyers visited Gitmo, the Marine general in charge told us that several of the detainees had arrived screaming that they wanted to kill guards and other Americans. …

    “Many at Gitmo are not in a state of calm surrender. Open barracks for most are utterly impossible; some al-Qaeda detainees want to kill not only guards, but their peers who might be cooperating with the United States. The provision of ordinary POW rights…is infeasible.”

  31. Mary says:

    71 -you bet it did. It got us al-Libi’s confession of al-Qaeda training sites in Iraq and a frame up for war with Iraq.

    Priceless.

  32. alinaustex says:

    My hope is that Team Obama is letting all of these “new” revelations regarding the war criminals perolate through our collective conscience until “inevitably and with reluctance ” it becomes overwhelmingly necessary to prosecute this whole kit and koboddle known as bushco.
    Is my hope grounded in any reality at all ?

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