More on the Field Trip to Gitmo

Just wanted to point to two tiny details from this passage about the "field trip" of the War Council (Addington, Yoo, Haynes, Gonzales, and Rizzo, plus friends) to Gitmo on September 25, 2002.

According to a trip report prepared by a Deputy Staff Judge Advocate at SOUTHCOM, MG Dunlavey held private conversations with Mr. Haynes and a few others and briefed the entire group on a number of issues including "policy constraints" affecting interrogations at the JTF. 354 For example, MG Dunlavey told the group that JTF-170 would "like to take Koran away from some detainees – hold it as incentive" but that the issue was undergoing a policy determination by SOUTHCOM.355 The trip report noted that Mr. Haynes "opined that JTF-170 should have the authority in place to make those calls, per POTUS order," adding that he "[t]hought JTF-170 would have more freedom to command. 356 MG Dunlavey told the Committee that he may have told the group during their visit that JTF-170 was working on a request for authority to use additional interrogation techniques. 357 Mr. Haynes said he did not recall discussing specific interrogation techniques or GTMO’s work on a request for authority to use additional interrogation techniques. 358

According to the Staff Judge Advocate (SJA) at GTMO, LTC Diane Beaver, there was discussion among senior staff at GTMO as to whether or not the JTF required explicit authorization to use interrogation approaches that had not been taught to interrogators at the U.S. Army Intelligence Center at Fort Huachuca, Arizona. While some felt that JTF-170 already had the authority to use additional interrogation techniques, MG Dunlavey directed his staff to draft a request for new authorities to submit to SOUTHCOM for approval.

The Discussion of the Bybee Two Memo?

First, remember that when Addington testified before the Assholes Who Torture hearing last year, he made clear when asked whether he had discussed the Bybee One memo on this Gitmo trip that it was the Bybee One memo–and not the Bybee Two memo (the one that described torture methods)–about which he was responding. That left the distinct possibility that he discussed the Bybee Two memo on the trip. 

Note this conversation with General Dunlavey then: he speaks with Haynes "and a few others," all in the context of a discussion of harsher methods to use at Gitmo.

Nothing earth-shattering about the possibility that they discussed the torture memo while they were discussing torture methods. But I would recommend that if Congress ever gets the chance to ask Addington this question again, they might try, "The SASC report describes a meeting with Dunlavey, Haynes, and a few others. At that meeting, did you talk about the Bybee Two memo and torture methods in particular?"

The POTUS Order

Next, look at Haynes’ response when Dunlavey says he wants to use the Koran as in incentive in interrogations.

Mr. Haynes "opined that JTF-170 should have the authority in place to make those calls, per POTUS order," adding that he "[t]hought JTF-170 would have more freedom to command.

Per POTUS order … that sounds like it may be a reference to the POTUS order the special forces guys were using in Iraq a year and a half later. And the reference to "While some felt that JTF-170 already had the authority to use additional interrogation techniques," probably relates at least to Haynes, though may refer to the other members of the War Council as well. 

It sort of makes you wonder whether 1) Addington shared the Bybee Two memo as a "how to" manual, and 2) Haynes and others said, "well you don’t NEED Rummy’s signature, but if it’ll make you feel better."

Housekeeping note: I’m going to be off line for significant chunks of time this week. bmaz has the keys (if he remembers where in the liquor cabinet he left them), but otherwise, I’ll just be checking in periodically.

157 replies
  1. Leen says:

    EW hope you will be taking a rest, walking the dog (oh yeah) and what ever else your heart desires.

    think you will be interested in this one
    Interrogating Torture
    by Philip Gourevitch May 11, 2009
    “America is now embroiled in a debate about how, or whether, to hold the true masterminds—the former President, the former Vice-President, the former Defense Secretary, and their top lawyers—to account for their criminal policies. Here, we are on uncharted ground. As a rule, the war-crimes prosecutions of the past century were conducted by a group of states, acting collectively, against the (usually defeated) leaders of another state. When states hold their own leaders to account, it tends to happen not after an election but after a revolution, when the very premise of the ancien régime is treated as criminal. Furthermore, prosecution and punishment are not necessarily the best means to eradicate the rot from a political system, because in adjudicating systemic crimes political compromise is inevitable. It is practically impossible, and politically intolerable, to contemplate holding to account every corrupted officer in the chains of command that ran between the White House and the guardhouse at Abu Ghraib or at Bagram Airbase. A full and public reckoning of the historical record might be less cathartic but would ultimately be more valuable than a few sensational trials.”…..gourevitch

    • TheraP says:

      My favorite part of that article is this phrase, near the end:

      the principle of command responsibility, whereby the leaders who give the orders are held to a higher standard of accountability than the foot soldiers who follow, pertains.

      • klynn says:

        …principle of command responsibility, whereby the leaders who give the orders are held to a higher standard of accountability…

        So, will we hear a legal argument from those in command that claims Peter’s Principle as their defense?

        • Leen says:

          Karpinski is pounding on the issue of why are those who were just “following orders” in prison while the higher ups are still walking free? She has been all over the place

          • Minnesotachuck says:

            . . . why are those who were just “following orders” in prison while the higher ups are still walking free?

            Like I told my family and friends when the shitty Abu Ghraib pics hit the fan and Rummy et al dismissed it as the work of a few bad apples, there’s no way that anyone who was living under US military discipline would have been so eagerly smiling at the shutters of cameras like those enlisted folks were unless they were utterly confident that what they were doing had the support of the chain of command as far up as they could see, and then some.

            • Leen says:

              Karpinski is driving this point all over the MSM

              Karpinski had previously admitted that rather than being an isolated incident under her command, the abuses were, “the result of conflicting orders and confused standards extending from the military commanders in Iraq all the way to the summit of civilian leadership in Washington.”

              Spun as the actions of “a few bad apples,” the Abu Ghraib torture program was sanctioned from the very top.

              Karpinski on Countdown

  2. klynn says:

    A full and public reckoning of the historical record might be less cathartic but would ultimately be more valuable than a few sensational trials.”

    (my emphasis)

    A full and public reckoning is a nice grouping of words but it is so obtuse and does not specify how one would “reckon the historical record”. And what would Philip’s suggestion be as far as the vehicle to complete a full and public reckoning outside of the legal process which could involve trials (which war crimes have been addressed by in the past)? Is he suggesting hearings?

    His use of the words “few sensational trials,” is limp and quite republican spin in a sense.

    • TheraP says:

      Regarding a “full and public reckoning” I wonder how many may have read all the down the comments here, to a lengthy one at the end, which lays out how Reagan and Bush I laid the groundwork for the mujahadin. It’s posted by mourad at 8:23 PM (currently the last comment). While most here are familiar with the description posted, it neatly summarizes the background events and roles of key political operatives (from Reagan to Bush I to Bush II), leading all the way up to why the Bush II lawyers are guilty. If I knew how to link just to the comment I would do so, but here are a few key paragraphs:

      Part of the unspoken agenda of the Cheney/Rumsfeld Axis was the PNAC plan for regime change in Iraq and the last thing the Axis leaders wanted was competent lawyers messing up their pet project with objections to an invasion, or worrying the President with any legal niceties of the laws of war. Cheney wanted a team of “yes men” at Justice and in particular at the OLC.

      Thus the Bush Administration generally was stuffed with Neoconservatives with a nasty power complex and a distinct lack of principles and the Administration’s nominal chief legal eagles, the Attorney-General and the OLC were distinctly second rate. And, incidentally, they were far less dynamic than the lawyers Cheney had carefully placed in other Administration slots – including within his own office.

      Given the nature of the emergency, the horror of 9-11 and the understandable “Delenda est Carthago” mentality of so many, this was perhaps the time when the Administration had most need of strong legal advice – especially as to the constraints on executive action in both national and international law. The Administration needed to know, not just what it should do, but also what it ought not to do.


      Professor Bruff concludes:-

      (i) “The War Council’s role is revealed by its name. It never showed any detachment from the policy goals of its clients. It became an advocate for any theory of law, no matter how implausible, that would allow what the administration wanted to do, for example harsh interrogation.

      All of this may be self-evident, but the wonderful historical summary (which precedes and lays a foundation for the conclusions drwan) might be very helpful just to keep things straight and clear. It definitely supports Mary’s strong contention that getting at what happened legally just after 9/11 is key here. Very long, detailed, excellent comment.

      The same writer has many comments on the thread, also worth reading. And there are great links provided as well.

      • skdadl says:

        I agree that is an excellent article, TheraP, and the underlying principle should matter to defenders of democracy everywhere, not just in the U.S. I would add only one point, one that Mary also makes every once in a while: whatever route investigation of the torture regime takes, it must be remembered that almost all the victims of the regime were not-Americans, and that awful fact weighs heavily with the rest of the world. Just getting things right within the U.S. is not enough, iow.

    • nextstopchicago says:

      I’m guessing that Gourevitch’s suggestion is based on his long, fascinating, depressing article last week in the same magazine about the gacaca courts in Rwanda.

      I think torture is pretty bad, but clearly the Rwandan genocide was worse. Gourevitch paints perhaps the best picture that can be painted for the gacaca courts and “full reckoning”. Notably, the Rwandans managed this without much help from the international community, though there were also trials at the court in Tanzania. And Gourevitch isn’t saying this is great. Merely that it can be done without re-rending the political fabric of a country.

      I’d like to see some trials. But I do fear the possible political backlash, too, so I’m uncertain what would be the most successful way forward. I’m just trying to put Gourevitch in context and give him some due, without entirely agreeing with him.

  3. scribe says:

    When this is quoted:
    “opined that JTF-170 should have the authority in place to make those calls, per POTUS order,”

    that contains a meaning different from just being able to play keep-away with Korans. Rather, I read that as saying JTF 170 should have the authority in place to decide whether to comport with Geneva (which would prohibit Koran keepaway) or not, and that a Presidential order had facilitated that (delegation of authority to decide).

    I kind of doubt that the President personally ordered JTF 170 to be able to depart from Geneva. What I rather suspect is that it delegated (probably to Secretary of Defense) and may not have restricted further delegation of, the authority to decide whether to comply with Geneva or not when interrogating captives.

    • klynn says:

      “opined that JTF-170 should have the authority..”

      Opined is a transitive verb here, so clearly Haynes is stating an opinion, or rather, his opinion. Right?

      Just trying to clarify if he is stating his opinion or noting many opinions.

      • scribe says:

        I think this was an issue of interpreting whatever documents carried within them the order – textual interpretation.

  4. rosalind says:

    apologies for the early OT: my hometown Menlo Park is tackling the foreclosure crisis head-on:

    Menlo Park’s City Council tonight will consider an innovative approach to preventing foreclosure for struggling homeowners…The Foreclosure Prevention Program targets owner-occupied homes with mortgages more than 90 days past due. Program administrators would approach the bank that holds the defaulting mortgage and ask it to sell the mortgage at the home’s current fair market value…A local community bank would then refinance the mortgage for about 70 percent of the home’s fair market value. In what is essentially a “silent second mortgage,” the city would put up about 30 percent of the home’s value as a cash investment, leaving the homeowner with a mortgage for 70 percent of the home’s fair market value at today’s low interest rates. The homeowner’s monthly housing costs potentially could be halved, EARN said.


    • behindthefall says:

      also O/T — Finally. As a non-economist, it has seemed to me from the beginning of the current financial mess that the most effective use of large gobs of federal money would be to pay off at-risk mortgages, details to be arranged. All the advantages cited in article. Too bad it has to be done under the guise of a for-profit operation. The article talks about large up-front costs … “large” compared to what? A few trillion tossed to banksters?

    • cbl2 says:

      haven’t read your link yet, but it sure sounds very similar to program ACORN is advocating.

      spent 25+ years in MP/PA – recall MP had high percentage of seniors, ripe for the banksters pickins.

      • DWBartoo says:

        It is also rational, reasonable and humane.

        Therefore it should be replicated wherever it may legally be done.

        However, hazarding a wild guess, it probably won’t become a widespread process because it is rational, reasonable and humane.

        Hope I’m wrong about that.

        (Have been having that feeling a great deal of the time, of late.)

        • rosalind says:

          yeah, as i read the article my first cynical thought was what b.s. excuse the banks will give for refusing to participate. however, hope springs…

          • DWBartoo says:

            Our thoughts run in parallel, rosalind, but I much appreciate your posting of the idea, which has true merit, regardless of what the bankers stink …


  5. lysias says:

    Holding public trials of the true masterminds and issuing a presidential pardon of everybody else WOULD be the kind of political compromise Gourevich says is needed to avoid a revolution that criminalizes everybody in the previous administration.

    • DWBartoo says:

      “… to avoid a revolution that criminalizes everyone in the past administration.”

      Rather a blanket statement, don’t you think? (not to mention what amounts to a poorly-veiled threat).

      Besides, the only folks responsible for being “criminalized” are those who engaged in crimes, real actual, definable crimes.

      However, the question for our time is this: “If we do not hold those responsible for what happened (shall we even call it torture, regardless of whose sensibilities such a term might ‘offend’?)to account, then how may we have ANY minimal assurance that ‘it’ (or worse) won’t happen again?

      The way we choose, collectively, to ‘answer’ that question will surely prove fateful.

      • lysias says:

        I’m not saying that’s what I would prefer doing. I’m saying it’s a way to satisfy Gourevich without letting the true masterminds off the hook. (It would probably also be a way for the public to find out what happened. And it would mean giving a pardon to the grunts from Abu Ghraib now in jail.)

        • DWBartoo says:

          As the ‘grunts’ were merely following orders from on high (as was obvious, even at the time that the ’story’ broke, also bearing in mind Limpaw’s well-broadcast efforts to deny the essential humanity of our “enemies”) and, like the ‘other’ interrogators should, probably, after fully cooperating with a serious, independent investigation, be ‘pardoned’.

          Why, lysias, is satisfying Gourevich an issue?

          This torture ‘activity’ is a cat that cannot be put back into the bag, even if our (”Christian”) nation closes its eyes, ears and hearts, the rest of the world will not. Neither will they trust us. Nor should they.

          But we, as human beings, members of the human family and citizens of the world have an obligation to truth and to justice, to ourselves and to the future.

          What is our obligation to those like Gourevich, who would like this critical decision point to be ‘contained’ and limited.

          Everything that America pretends to be about is on the line, torture is simply what has brought us, finally, to this ‘break’ or breaking point.

          Do we choose to become a civil society or shall we permit the continued destruction of this nation, its social contract and the notion of the importance of rule of law itself to be used to the benefit of the elites?

          Do you think Gourevich possessed of a special wisdom?

          Perhaps the ‘pragmatists’ will yet do us in, all the while claiming that. “There is no other way …”

          If this ‘business’ of consequence is limited to those at the ‘top’, then it will likely, just go away, just as it did for Nixon, simple ‘embarrassment’ will see to that, one suspects (”What will other nations and people think if we hold our leaders to account? Oh, the shame! the disgrace! We must not do that, let us practice compassion and understanding”) First, the ‘charges’ will be watered-down,then numerous excuses will be made and accepted, and finally, we will all apologize to Bu$h and Cheney for having treated them so unfairly, torturing their pristine and noble souls. “Expediency” will out.

          (Which does nothing to address the hypocrisy of deporting a former Nazi prison guard while saying that what has been done in the name of the American People, you and I and everyone we know, is ‘different’, somehow, when we know, if we are even part-ways honest with ourselves and each other, that it is.not.different.)

          • jackie says:

            I think each individual who made the choice to lay their hands’(pens, etc)’ on another person, knowing it was WRONG, should face punishment.
            We are Grown-ups, we make choices and we have to face those choices when we chose wrong.

          • ghostof911 says:

            Well stated, DBW. Letting them off the hook is not the “pragmatic” approach. They will turn around and strike again at the next opportunity. True pragmatism is to hunt them all down, prosecute to the full extent of the law, and to enact new legistlation make a repeat occurrence as difficult as possible.

  6. lysias says:

    Getting at what happened legally right after 9/11 might also enable us to determine whether or not the conspiracy theories about 9/11 are correct. Unfortunately, that may be precisely the reason why we will not be able to get at it.

    I still would like to know who told Yoo to stay behind in his office the morning of 9/11, when the Justice Dept. building was evacuated, and in particular whether his staying put had been prearranged.

  7. Mary says:

    1,2,3 – anyone asking people like Maher Arar and Khaled el-Masri for their opinion? You know, the victims?

    This is a bit older (all the way back in April *g*) but I missed it until today – an op piece by Baer that has some intersting points.…..09,00.html

    BTW – how are we supposed to recruit intel sources while we are saying that innocent Muslims can be disappeared and tortured and their families, minds and lives destroyed on whim, and then the US will just shrug it off and turn on talk radio to further vilify the victims?

    • freepatriot says:

      BTW – how are we supposed to recruit intel sources while we are saying that innocent Muslims can be disappeared and tortured and their families, minds and lives destroyed on whim, and then the US will just shrug it off and turn on talk radio to further vilify the victims?

      well, we got guys in Afghanistan running a torture palace right now, and in their spare time, the guards pass out bibles to the locals

      how are we supposed to win hearts and minds when our tortures are destroying the pillars of America right in front of their faces ???

  8. Mary says:

    I’m really hoping that if they dig on the torture field trip, they dig more into the roles of Thompson and Chertoff on that trip.

    The fact that Thompson barely comes back from it before he is sending off Arar to Syrian torture makes you wonder what kind of torture prep he was getting too. No one has explored his role as DAG in the Ashcroft torture approvals for the Principals and Chertoff barely gets mentioned, although he was meeting with FBI about their objections to the torture, as well as participating in the field trip.

    Why did all those lawyers think they were going to GITMO? What was the purpose if not to review things vis a vis the authorizations that had been given. You wouldn’t really need a cadres of DOJ and Admin lawyers to check on the cleanliness of the facilities.

    • klynn says:

      I am really confused regarding the Ashcroft approvals, Comey’s writngs on approvals and Comey’s language of disgust/shock regarding “the combined”.

      Have you come across any documentation that would walk me through this?

      • Mary says:

        I’m not a lot of help on that – I’m less than a big fan of Comey and I haven’t looked for a lot of clues on what he may have left in place bc I personally don’t really expect them to be there. That’s all a personal take and LHP, drational, EW, etc. all have had more positive things to say and to be perfectly honest that would make them more likely to be able to recognize the “bread crumbs” that he might have left. I’m a bad source for that, but that doesn’t mean someone else might not be a good source who can give you some helpful info.

        On the “combined” memo, though, it’s the one that really shocks me the most too. It completely abandons the “necessity” aspect that they might have tried to hang their hat on. It basically looks at the wide ranging nature of the problems that CIA and the admin (for CIA and militrary programs) had by that point (investigations on 10-30 “mistakes” like el-Masri, loads of innocent people swept up at Bagram, Abu Ghraib, etc. and shipped to GITMO too, specific briefings to the Admin on how many innocent people were being swept up, etc.) and say, hmmm, how broad can we get here in handing out protection? And it goes for it all – with saying that all those “techniques” are legal under US laws (like the torture act and war crime act etc.) for any “detainee” of any kind and in any combination.

        Not just for “enemy combatants” Not just for situations where there are doctor and psychs. Not just for adults. Not just for the same. Not just for the able vs. the infirm. It blankets things like hanging people naked in stress positions – any people – as “legal” for government under US law.

        I keep going back to “creepy” but it’s the first thing, other than evil, that comes to me when I read that opinion.

        • bmaz says:

          The overall pattern of the torture memos and the torture campaign they set in place seems somewhat analogous to the shifting Iraq War rationales and the extended war it set in place. As the Brits would say, they made up their mind and then fixed the policy and facts around it. The determination to torture was made – had to have been at the top, i.e. Cheney and Bush – and then a series of rolling rationalizations for it spewed forth. Like the Iraq war, after a while it just became “well if we are doing it, it must be okay”. It was not a bug with Bush/Cheney, it was a feature. It was how they rolled.

          • DWBartoo says:

            Memos, memos, memos.

            A “Downing Street” memo and a raft of other, even more nasty memos.

            Memos, memos everywhere, but not a stop to think.

            (bmaz, you’re gonna be on their list, if you ain’t already. Note: It ain’t so bad, I’ve been on their list since the early sixties, when I became involved with Civil Rights, and my vocal opposition to the war in Vietnam clinched it. I regard it as an honor, of sorts, probably you do as well, ;~D)

          • Mary says:

            Agreed. I think they also had this problem that, as each rationalization covered their old sins, they were committing new ones, so the memos had to keep getting broader and broader.

            I still remember reading that Philbin memo from early early on (did they just release that this year?) where the thing Bush wanted then was something saying it was ok for him to set up any kind of kangaroo military commission he wanted to execute people as he took them (at the time – not knowing what a clueless careless asshole he was and thinking it might apply primarily to bin laden, I can’t say I would have objected much). Philbin gives him that authority with a memo that specifically says it is ok to do that bc the Geneva Conventions allow for military commissions and of course the GCs would apply to our conflict with al-Qaeda. Of course it would – the authoritative OLC opinion on the matter, for a few days at least, until the torture and other issues came up and the desire to give the PResident the power to put anyone he chose outside the protection of law and engage in human experimentation with them.

    • Leen says:

      13 Jul 2008 Andrew Sullivan
      Vice-President For Torture

      “The role of the torture lawyers in crafting the system is far more intimate than they have acknowledged. John Yoo, Michael Chertoff and Alice Fisher reviewed specific techniques which clearly amounted to torture and blessed them as fine to use, and then lied publicly and to Congress about their involvement. Yoo is said to have given his legal blessing to torture techniques and their application by DOD operatives on the squash court as he played rounds with Jim Haynes.

      – A staff attorney at DOJ names Jessica Radack was fired and then hounded by Chertoff and Fisher after she dispensed correct advice to the effect that John Walker Lindh could not be interviewed by the FBI without being Mirandized and having his attorney present.”


      I know I read in several placed that Chertoff had quite the role in allowing scores of suspected spies to quietly return to Israel after 9/11

      • Mary says:

        But how does he know that Chertoff and Fisher reviewed them as well? I’m not sceptical of it at all – I’m right on board actually, but is there something evidentiary in the record on that? That’s what I haven’t seen much of and wonder about. Those tracks seem much more covered than Yoo’s and Addington’s.

          • Mary says:

            Thanks I’ll have to go and look again bc I don’t remember reading that -Mayer saying specifically that she ahd sourcing that Chertoff reviewed the techniques with Yoo. It makes sense, bc there are other reports that Rice wanted that – Crim Div involvement as well as OLC, and there have been lots of other allusions to Crim Div involvements, but no memos or writings so far that I know about. EW may have some, but I’ve just seen references to involvement, no docs.

    • Mary says:

      I don’t think we know enough to know for sure. He would have been Ashcroft’s deputy for the Principals crew. He probably had some kind of generalized knowledge, but ??? I think what we do know from reports is that the FISCt Chief Judge(s) orders re: the program required that any applications for FISA warrants involving anyone tracked under the program had to be signed off on by the AG (not DAG) and submitted only to the Chief Judge (not the panel). The reports are then that there were leakthroughs, and applications were not being handled that way. There was also some report that Thompson got presented with some applications that had something suspicious that caused David Kris to reccomend that Thompson NOT SIGN either those applications or possibly even that Thompson got spooked from signing applications period (which might have indicated that he was worried that he would be in violation of the FISCt orders)

      But Congress has been very reluctant to nail Thompson down as to his knowledge although Thompson (wonder how Maher Arar feels when he walks by Pepsi products and thinks about the guy who sent him to Syria) purported to know enough on torture to join with Philbin, Goldsmith and Comey in telling the SJC that Haynes had just gotten a *bad rap* on torture and was really a great guy who could, under pressure, now and then, think of something that shouldn’t be done to someone — unless it got Rumsfeld to ok it.

      Remember – we have Bybee on the circuit court, but we almost ended the Bush admin with Bybee, Chertoff and Haynes all sitting on circuit courts. By comparison, the Kavanaugh appointment almost looks not that bad.

  9. lysias says:

    Bush, in 2003 State of the Union:

    “To date, we’ve arrested or otherwise dealt with many key commanders of al Qaeda. They include a man who directed logistics and funding for the September the 11th attacks; the chief of al Qaeda operations in the Persian Gulf, who planned the bombings of our embassies in East Africa and the USS Cole; an al Qaeda operations chief from Southeast Asia; a former director of al Qaeda’s training camps in Afghanistan; a key al Qaeda operative in Europe; a major al Qaeda leader in Yemen. All told, more than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Let’s put it this way — they are no longer a problem to the United States and our friends and allies.

    It reminded me of sinister passages in Hitler’s speeches.

    • jackie says:

      Can we put in these ‘terror leaders’ actual names, job descriptions, family relations etc. It will be harder for BushCo to keep blowing smoke if everyone can know/see the actual people behind the BushCo generated veil of ‘Big Bad Guy!!’.
      BushCo own words will hang them and we get to watch…

      ‘They include a man who directed logistics and funding for the September the 11th attacks; the chief of al Qaeda operations in the Persian Gulf, who planned the bombings of our embassies in East Africa and the USS Cole; an al Qaeda operations chief from Southeast Asia; a former director of al Qaeda’s training camps in Afghanistan; a key al Qaeda operative in Europe; a major al Qaeda leader in Yemen.’

    • cinnamonape says:

      Nice quote but I noticed a few other interesting words.

      “To date, we’ve “arrested” or otherwise dealt with many key commanders of al Qaeda. They include a man who directed logistics and funding for the September the 11th attacks; the chief of al Qaeda operations in the Persian Gulf, who planned the bombings of our embassies in East Africa and the USS Cole; an al Qaeda operations chief from Southeast Asia; a former director of al Qaeda’s training camps in Afghanistan; a key al Qaeda operative in Europe; a major al Qaeda leader in Yemen. All told, more than 3,000 suspected terrorists have been “arrested” in many countries. Many others have met a different fate. Let’s put it this way — they are no longer a problem to the United States and our friends and allies.

      And you can imagine Bush snickering after that last phrase.

      Also notice that KSM is actually the individual that actually is attributed to being involved in many of those “positions”, that most of the others were detained without any requirement to torture, and that Zubaydah’s actual role is misrepresented…and they already knew it.

      • JimWhite says:

        Also notice that KSM is actually the individual that actually is attributed to being involved in many of those “positions”,

        That’s what bothers me about that statement. It comes from Bush January 28,2003. He sounds like he’s talking about KSM, who wasn’t captured until March 1, 2003.

        KSM’s charges:

        conspiracy, murder, attacking civilians, terrorism, and providing material support for terrorism. Mohammed is accused of proposing the September 11 attacks to Osama bin Laden, obtaining bin Laden’s funding and approval for the attacks, training the hijackers, and generally overseeing the operation.

        Is KSM’s capture timeline correct?

      • SparklestheIguana says:

        Many others have met a different fate. Let’s put it this way — they are no longer a problem to the United States and our friends and allies.“

        If I recall, right after this line Bush looked around the room like a 2 year old who had just produced his first successful shit in the toilet, and the applause was long and thunderous.

    • jackie says:

      I watched that and I went cold..
      If you pick up 3000+ ‘bad guys/gals’, but have ‘taken care of’ MANY others’, just how many people who are ‘no-longer a problem’ are we talking about?

      ‘All told, more than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Let’s put it this way — they are no longer a problem to the United States and our friends and allies.“’

      • jackie says:

        I’d really like some one Grown-Up’ to ask the question
        ‘Just how many people are we talking about here? Mr Ex- President’

        • JohnJ says:

          Looking at their track record of actually getting the right people, this means that less than half of the people that are no longer a threat NEVER WERE! (note: the comments section does not like the percent sign!)

          This removes “kill ‘em all and let God sort ‘em out” from the movie and video game realm, doesn’t it. But then, I really think that that is DarthCo’s view of reality.

          It kinda’ reminds me of our death row innocence rate (wasn’t it Mi that was 50%)?

          One more thing, I think we’ve been wrong in naming the big dick “Darth”; Darth was once a good guy. This I think is a much more realistic representation of him. (Go Frank Herbert!)

      • Mary says:

        I don’t know if he was including them, but take a look at the “terrorists” that Dostum had put in the shipping containers and was sending in for his US payoff. They started to suffocate and he had his paramilitaries fire directly into them. Most of those in the containers were either suffocated or killed. We then let him go bury the shipping containers with their contents, taking custody of (and I guess paying for) the survivors.

        Included in the survivors were some of the Brits who were released earlier. But not before our “enhanced interrogation techniques” were used to get them to confess to being the “previously unidentified men” in a picture with Bin Laden. So see – that made all the torture ok – they were bin laden associates.

        Except, well, gosh, MI5 had to reluctantly explain that none of them could have been in that picture bc they were elsewhere accounted for at the time the pic was taken. Shucks. But at least the others in their shipping container were guys we didn’t have to worry about anymore – and they were probably the unidentified guys in the picture. Or something.

        BTW, right before the elections here, and with US troops stationed within 3 miles, Dostum was allowed to dig up the shipping containers and carry out a more thorough destruction of the evidence in those containers.

        • jackie says:

          Most of us here (well all of us here really, else we wouldn’t be here. lol) have a fair idea of just how bad this whole war thing has been as far as people killed, injured, imprisoned, damage to lives, property damage, brutality and on and on.
          I already have so many times, that I have to go do something else for a few, because I just can’t handle anymore. So many tears..
          It is going to really hard for a lot of folks to deal with when people get hit with what is coming ahead as far as releasing of pictures, memos,’they made me do it’ statements etc, etc.

  10. JohnLopresti says:

    Likely some people in the interrogation training site city mentioned could answer some of the questions about the discussions which took place on that junket, in a sense less legalistic but more programmatically specific, for the purpose of planning their course syllabi; the context of an actual tour seems to indicate the specificity of the second memo, beyond the first memo’s policy calculations relative to international law impacts of the new ‘paradigm’. I suspect the shifts in the field manual during those few years generated quantifiable controversy among those folks as well, as courses diversified to encompass the new mandates and ‘authorizations’. It may have been moot whether many from leadership actually physically had visited onsite with the rest, as the telecomms connectivity at that training facility likely is as good as Rockefeller Center’s.

  11. tjbs says:

    The only thing I’ll settle for is an International War Crimes Tribunal. Which ever American group(congress , select committee ,blue ribbon commission) investigates they will shift blame.

    Another plus is the president has no pardon power in an International War Crimes Tribunal.

    IF they are found guilty they would be stripped of ALL of their worldly possessions down to their silk underwear then locked away forever and there would be no more news about them till the death notice. I nominate the Aba Grabh prison as the proper place to lock them away..

  12. DWBartoo says:

    OT: Word is that the DOJ “probe” of “torture” memos is about to end.

    Watch for the Friday news ‘dump’ …

    Let the “absolution” begin?

      • DWBartoo says:

        According to my source (who prefers to remain anonymous), Loo Hoo, Huffington Post has made some mention of “the end” of the DOJ “probe”.

        (Which brings up images of what we used to refer to as “idiot sticks” and raises the question of who is on which “end”, as well as other “images” and “situations” …)


  13. Mary says:

    BTW – if Fisher was directly involved in reviewing/oking techniques, her (and others) testimony in connection with her nomination would sure bear another look for perjury – they did ask about involvement, but IIRC it was mostly questions about involvement in the military interrogations program. If she parsed bc she didn’t work on that, but she did work on the CIA program, she might not have parsed well enough.

  14. GregB says:

    By the way, from the looks of that video in front of the 4th graders, Condi Rice is breaking out in dishonesty hives.

    She’s the weakest link.


  15. readerOfTeaLeaves says:

    Wow, something weird must be happening behind the scenes because there is an interview on Morning Joe with Richard Haas (Council on Foreign Relations) that is not complimentary to the Bush II admin.

    Sign of the times:…..6#30577604

    It’s not news to anyone here, but it’s interesting that this interview is happening now, and that many fingers are pointed at Cheney, the people around him — starting at 2:14 in the interview, it gets rather interesting….

    RE: the runup to the Iraq War at: 4.27 “We thought we had prevented the Vice President’s staff from going forward with something that had little or no basis in fact…”

    4:50 Joe: “It sounds like… Dick Cheney was the bad guy…” And then Haas points out, “But there was only one President…”

    Interesting tea leaves, both in what is said, and who says it.
    One wonders why it took so long for Haas to write his book…

    • rapt says:

      “Wow, something weird must be happening behind the scenes…”

      I looked at that Morning Joe clip reader, and saw nothing but defensiveness and lies, as usual. I usually can’t stomach much of that stuff, including most of teevee, as it mostly a mind-control apparatus. (Maybe it’s just me, huh?)

      Anyway, the Cheney-bashing seems to be a very normal and expected transfer of guilt over onto one who is currently vulnerable. I luv the way Haas nuzzles in to the “good” Gulf War I with his reminder that only Iraqis were killed and maimed while us good guys lost a piddling 150 troops, expecting his audience to agree with him in the manner that Joe-the-tool-of-indoctrinators himself does.

      More power to you if you can watch that crap and stay healthy.

  16. pmorlan says:

    Am I the only one who didn’t see the Jason Leopold piece? I thought this was news but no one has commented yet about my earlier comment on this. Have you all already seen these documents that Leopold links to in this piece?

    Here is the link again.…..?task=view

    The government documents filed May 1, with U.S. District Court Judge Alvin Hellerstein include two sets of indexes totaling 52 pages and contain general descriptions of cables sent back to CIA headquarters describing the August 2002 videotaped interrogation sessions of Zubaydah. Those cable transmissions included a description of the techniques interrogators had used and the intelligence, if any, culled from those sessions.

    • skdadl says:

      I’ve just been reading it, pmorlan, and thinking about Mitchell again. Do we know whether he and/or Jessen are actual doctors of either sort?

    • bmaz says:

      Those are the “Vaughn Indexes” that you have seen discussed previously, including here when Hellerstein demanded more specific production regarding the same. The documents from May were the more specific production, unfortunately, it is still not as detailed as the court has in mind, and certainly not what the ACLU has in mind. So far they still don’t do much except further confirm that which we already knew, i.e. that the torture was being micromanaged by Langely and Washington.

      • pmorlan says:

        Thanks for responding bmaz. I remember the Vaughn indexes being discussed but until today I hadn’t seen them so I didn’t think anyone else had seen them either.

  17. fatster says:

    O/T, KBR–it just goes on and on

    “Former unit of Cheney’s firm makes up ‘vast majority’ of criminal audit cases in wake of Iraq war

Published: May 5, 2009 
Updated 3 hours ago
    “In shocking testimony made by the Pentagon’s top auditor on Monday, the Defense Department revealed that a former unit of the company where Vice President Cheney was CEO is under investigation for allegedly billing for unallowable costs, accepting bribes, falsifying time cards and overbilling.”

  18. fatster says:

    Former Bush Officials Work to Soften Ethics Report on Interrogations
    By Carrie Johnson
    Washington Post Staff Writer
    Tuesday, May 5, 2009; 3:06 PM

    Former Bush administration officials are launching a behind-the-scenes lobbying campaign to urge Justice Department leaders to soften an ethics report criticizing lawyers who blessed harsh detainee interrogation tactics, according to two sources familiar with the efforts.…

    • Rayne says:

      Whoa. Now that is rather interesting

      A draft report of more than 200 pages, prepared in January before Bush’s departure, recommends disciplinary action by state bar associations against two former department attorneys in the Office of Legal Counsel who might have committed misconduct in preparing and signing the so-called torture memos. State bar associations have the power to suspend a lawyer’s license to practice or impose other penalties.

      Emphasis mine. Apologies to my friends in the legal profession, but I am reminded of the joke about the difference between a car hitting a skunk versus a car hitting a lawyer…

      In this case, though, I think there was a couple of large buses involved.

      And no skid marks.

      [edit: mislocated the beginning of emphasis on the 200 pages – isn’t that more than the original Bybee-Yoo memos combined?]

      • WilliamOckham says:

        This passage is the main news, I think:

        Among other things, the draft report cited lengthy passages from a 2004 CIA inspector general investigation and cast doubt on the effectiveness of the questioning techniques

        This is a bit of disappointment though:

        Investigators rely in part on e-mail exchanges between Justice Department lawyers and lawyers at the CIA

        Many folks were hoping there were emails between the WH/OVP and the OLC.

        • skdadl says:

          Many folks were hoping there were emails between the WH/OVP and the OLC.

          Yes. If that doesn’t happen, how is this an advance on the work that Glenn Fine (DoJ IG) did last year? (Not that I could narrate that now in much detail …)

        • MadDog says:

          …Many folks were hoping there were emails between the WH/OVP and the OLC

          Your wish is our command! *g*

          Per the NYT link from Jason at # 86:

          …The draft report is described as very detailed, tracing e-mail messages between Justice Department lawyers and officials at the White House and the Central Intelligence Agency…

          (My Bold)

        • Rayne says:

          I suppose we should have expected omission of WH/OVP and OLC since the report was drafted during the Bush Admin by people given blessings by the same.

          Hence the backend of the bus fading into the distance leaving no skidmarks; they must have thought we’d be appeased by the detritus of two lawyers’ careers left in the wake of the bus instead of actual prosecutions for those who gave the same lawyers their marching orders.

          [edit: and now I see the comments about the emails in the NYT linked by Leopold…off to see if there is any suggestion regarding matches with holes in emails…]

    • bobschacht says:

      Ah, yes. “Former Bush administration officials.” Did you hear that Bush has had his own 100 days? and in that time, he’s managed to raise $100,000,000 for his liebary? How do you suppose they are going to spend that money? Perhaps one of the most expensive spin projects in human history. Lots of employment prospects for “former Bush administration officials.” BTW, this is breaking records for President Emeritus fundraising. He’s beating the pants off Clinton’s first 100 days out of office (oops, wrong metaphor.)

      So is Rove the Principal Spin Doctor at the new liebary?

      Bob in HI

  19. fatster says:

    Paging bmaz! Paging bmaz!

    Scientists unveil chocolate-fueled race car
    y MEERA SELVA, Associated Press Writer – 11 mins ago
    LONDON – Scientists unveiled on Tuesday what they hope will be one of the world’s fastest biofuel vehicles, powered by waste from chocolate factories and made partly from plant fibers. Its makers hope the racer will go 145 mph and give manufacturers ideas about how to build more ecologically friendly vehicles.…..late_racer

    OK. Silliness over. You may now return to your regularly scheduled . . .

  20. lysias says:

    If Bybee is reprimanded by his bar, what happens to his seat on the Ninth Circuit?

    If Yoo is reprimanded by his bar, what happens to his chair at Berkeley?

    • cbl2 says:

      if wrong, a flock of legal eagles will swoop in and correct me – but

      Bybee is not automatically removed just because of disbarrment. Resignation or Impeachment are the only known means for removing a Federal Judge.

      and which Bar will it be ? Nevada or DC ?

      what constitutes a formal vs informal disciplinary hearing ?

      Yoo otoh, may have some problems with his employer as I recall some language wrt firing/loss of tenure wherein disbarrment may apply

  21. jackie says:

    Shame that they had so much trouble with the WH e-mail system on all those days. I bet they could clear a lot of stuff up /s

  22. JasonLeopold says:

    Hey folks, this is just out from the NYT

    An internal Justice Department inquiry into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted, according to government officials briefed on a draft of the findings.

    • cbl2 says:

      WaPo reporting OPR recommending disciplinary actions from Bybee and Yoo’s respective state bar assoc.

      • JasonLeopold says:

        Yes I read that. The Times has a tad bit more info. And their characterization of their work as “serious lapses of judgment” seems to downplay the conclusions.

        • cbl2 says:

          thanks for the link – headed over there now – esp after MadDog’s nugget above – aiyee !

    • WilliamOckham says:

      The NYT adds WH emails to the mix.

      The draft report is described as very detailed, tracing e-mail messages between Justice Department lawyers and officials at the White House and the Central Intelligence Agency.

      • JasonLeopold says:

        I’m told the Times may have a much more complete story this evening on the report’s conclusions and recommendations.

              • JasonLeopold says:

                The email traffic dates back to late 2001 and OPR was able to put together an incredibly comprehensive timeline of who sent what and when it was sent. At least that’s what has been described to me. From what I understand, that’s the real meat of the report and it’s supposed to underscore that Bybee, Yoo and Bradbury acted as “advocates” for administration policy.

  23. SparklestheIguana says:

    Arrghh! WaPo article:

    The memos offered support for waterboarding, slamming prisoners against a wall and other techniques that critics have likened to torture.

    Likened?? LIKENED??????

    • Loo Hoo. says:

      It’s just a simile. No serious crimes committed. Let’s just freaking disbar a couple of lawyers and forget the whole thing ever happened.

      • SparklestheIguana says:

        The stupidest thing about “critics have likened to torture” is that it’s not even accurate. Critics CALLED it torture. Even if a lobotomized journalist is trying to be super evenhanded, she has to admit that “critics” CALL it torture.

        The NYT at least does a better job: “…human rights groups have condemned as torture…” “waterboarding — the near-drowning method that President Obama and his aides have described as torture….”

  24. Mary says:

    Hard to believe they would limit to Bybee and Yoo, with what Bradbury did.

    Those articles which keep saying that the report might recommend bar referrals ‘instead of’ criminal action don’t seem to get it – that the point of an OPR investigation (vs a criminal investigation) is to determine whether or not the subjects should have professional or administrative disciplinary action taken. I don’t think it’s within their mandate to recommend criminal filings even if they believe crimes were committed. Maybe they can, but it would be far afield for a Prof Resp office.

    Remember from the Sampson, Norwacki, Goodling “investigation” by OPR, there were specific findings of crimes committed (and only Goodling had taken the 5th in her Congressional testimony and that didn’t cover everything that the investigation found as to her criminal activities) but nada – not even recommendations vis a vis state bars:

    In sum, the evidence showed that Sampson, Williams, and Goodling violated federal law and Department policy, and Sampson and Goodling committed misconduct, by considering political and ideological affiliations in soliciting and selecting IJs, which are career positions protected by the civil service laws.

    We also concluded that Goodling committed misconduct when she provided inaccurate information to a Civil Division attorney who was defending a lawsuit brought by an unsuccessful IJ candidate. Goodling told the attorney that she did not take political factors into consideration in connection with IJ hiring, which was not accurate.

    Because Goodling, Sampson, and Williams have resigned from the Department, they are no longer subject to discipline by the Department for their actions described in this report. Nevertheless, we recommend that the Department consider the findings in this report should they apply in the future for another position with the Department.

    In addition, we concluded that EOUSA Deputy Director John Nowacki committed misconduct by drafting a proposed Department response to a media inquiry which he knew was inaccurate. Although Nowacki knew that Goodling had used political and ideological affiliations to assess career attorney candidates for EOUSA detail positions, he drafted a media statement in which the Department would have denied the allegations. Nowacki is still employed by the Department. Therefore, we recommend that the Department consider appropriate discipline for him based upon the evidence in this report.

    We believe that implementation of our recommendations can help prevent a recurrence of the violations of federal law and Department policy, and the misconduct, that we describe in this report.

    Ooh wow – that really did something worthwhile, didn’t it?

    I think you’ll get a little more info, not a lot, and in a very circumscribed and narrow fashion, and nothing really much else from the OPR report.

    Definitely not 5 years of taxpayer funding worth. And the lawyers in Pentagon and CIA won’t hardly be touched.

    • cbl2 says:

      thanks as always Mary

      I couldn’t determine from my reading whether recommendations for criminal proceedings was even within OPR’s purview

      • Mary says:

        I won’t say there is no way in the world they could ever put in a recommendation for crim prosecutions, but that’s not their function, and with there function limited to reviewing for professional and departmental administrative violations to determine whether there should be professional or administrative action taken — and with their mandate here so limited on the opinions, without being able to go out and conduct criminal investigations for the overall crimes and tie in all the conspirators with cross linking evidence, there just was not much hope on the criminal front, ever. Like kissing a frog – I won’t say it couldn’t get you a prince, but I know which way I’d bet.

        The limited mandate to the issuance of the opinions screws the pooch too.

        And to make things a bit bleaker, I’d bit the state bars shrug them off. If they aren’t going to pursue any kind of criminal action of any kind, then it does make it much harder for a state bar to do much. A felony conviction makes it ez. A DOJ evidencing itself as a kind of Sybilesque creature – calling the torture “policy” and promising to not only not go after it, but to use the DOJ to defend torturers; saying the state bars should “do something” about the drafters of the opinions but refusing to do anything itself about them; chumming (in the most fisherlike sense of the word) around with all the same torturers while actively fighting victims like Arar (Vance, el-Masri, etc.); saying that no one is above the law while placing Presidential torturers above the law; etc. – that kind of creature isn’t going to get a lot of “sit up and take notice” from a bar panel.

        File some criminal actions – the bars will listen.

        • cbl2 says:

          gotcha ! and thanks

          your comment at 107 above should be required reading for all the non legal types and others not following as closely

    • WilliamOckham says:

      The political class is heavily invested in pushing the ‘criminal charges unlikely’ line. It’s hard to imagine that a document that quotes extensively from the 2004 CIA IG’s report will not increase the pressure for prosecutions. We know that the IG report was pretty explicit in asserting that conduct sanctioned by the 2002 memos violated the CAT.

      • Mary says:

        From whom will that increased pressure come? That’s where I get bleak.

        I think there will be some info and I agree with you that there will be more insight in the IG’s report. But Obama and Holder have so firmly staked out positions right now that there’s no easy way out. And the few in Congress who give a rats ass have done a pretty bad job of setting this up for anything more than bickery hearings that achieve nothing. In part bc they, too, have thrown in the towel on criminal investigations vs “truth” hearings.

        Meanwhile, with every disastrous report coming from Afghanistan and Pakistan, Obama gets tied in tighter and tighter to the torture brigades as his intel sources. And we can’t really back “new” guys, bc they might reveal our torture roles or not play along, while backing the “old” guys puts us in the continuing posture of saying “we want your law corrupt and we want it to not render and accounting for the disappeared, the purchased and the tortured, bc otherwise we have a problem” And all the while we also require that Eurpean and other allies posture themselves in the same way – to cover up US torture and their complicity – so we can all keep sharing intel and pretending that we aren’t handing off info to torture regimes.

        And in the end, none of them give a damn about costs to the country – just
        personal political capital and CYAs for depravity.

  25. cinnamonape says:

    The draft report on the interrogation opinions was completed in December and has provoked controversy within counterterrorism circles, which has intensified since last month when the Obama administration disclosed four previously secret opinions written from 2002 and 2005, which for the first time detailed the approved procedures


    So essentially a White Wash of the White House and Yoo and Bybee. Knock me over with a feather! Who would have guessed? This is about as surprising as the Roberts-Hoekstra report on Valerie Plame.

    I hope that Holder looks long and hard at it, and double checks eveything for omissions and factual errors before putting his name on this POS.

  26. JasonLeopold says:

    Here’s NPR’s version:

    According to sources familiar with the investigation’s findings, the report will provide a detailed play-by-play of how the memos were produced. It will contain e-mails sent from one Justice Department employee to another and from Justice Department employees to other government officials.

      • JasonLeopold says:

        Here’s what Durbin/Whitehouse just sent out:


        [WASHINGTON, D.C.] – Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Sheldon Whitehouse (D-RI) released the following statement after the Department of Justice (DOJ) sent them a letter regarding the status of the department’s investigation of torture authorizations.

        “We are heartened to learn that the Department of Justice’s internal review of the legal authorization for torture by lawyers at the Office of Legal Counsel is nearing an end.”

        “According to a letter we received from DOJ last night, the lawyers under investigation had the opportunity to submit comments to a draft report — comments which were due yesterday.”

        “While we are disappointed to learn that DOJ allowed Stephen Bradbury to participate in OLC’s ‘review and response’ to the report – despite the fact that he played a leading role in drafting the memos under review – we look forward to the prompt completion of this report, and we are pleased by the strong implication in the letter that former OPR chief Marshall Jarrett’s pledge to release the report will be honored.”

        “We will be interested in the scope of the ‘substantive comment’ the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter.”

        • Leen says:

          WTF Bradbury participated in OLC’s “review and response” Now wait a minute if a peasant has allegedly committed a crime would we get to be in the room when a “review and response” to a report having to do with the investigaton is going on? What the hell is up with that? What country is this?

          did they say these lawyers had a “a lapse of memory”

  27. Mary says:

    I think Holder will take as long and hard a look as the look he took at his own letter to the CIA

    Attorney General Eric Holder says the government won’t prosecute CIA officials for using waterboarding and other harsh interrogation tactics on terror suspects.

    Holder said in a statement Thursday it would be unfair to prosecute CIA employees for following the legal advice given at the time. And he says the government will defend any CIA employee in any court action brought in the U.S. or overseas.

    Kind of hard to be going after old admin lawyers for giving torture advice when you are handing out non-prosecution agreements and promises for the torturers and even agreeing to use the full force and power of the US DOJ to go after any victim who might have the gall to complain about being tortured.

    In any event, from the NYT piece, hopefully someone will put together this part:

    An internal Justice Department inquiry into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted, according to government officials briefed on a draft of the findings.

    with this part:

    At issue are whether the Justice Department lawyers acted ethically in writing a series of legal opinions from 2002 to 2007.

    It’s always been out there that, without a real thorough criminal investigation that doesn’t have limited scope, you wouldn’t be able to get the evidence to go after the lawyers for an actual breach of law based on the issuance of the opinions only.

    You’d need to be investigating all the people working on the policy (which OPR can’t do) and implementing it (which OPR can’t do) and then tieing the conspirators together. What can be done vis a vis the lawyers, and without launching the full scale torture investigation, is an investigation of all the other many areas where their ties to the torture programs ended up causing them to violate laws relating to candor to the tribunals (Congress and Courts) and laws of evidence and court orders etc. – none of that was within the scope of the OPR mandate for investigation and if it had been, you would have still had the limits of OPR vis a vis criminal recommendations vs. disciplinary recommendations.

    That’s where SJC and HJC should be headed – a broad ranging investigation into DOJ AND OTHER AGENCY LAWYERS and their professional and LEGAL duties with respect to Congress and the Courts as tribunals. imofwiw

    quickie edited to change would to wouldn’t

    • MadDog says:

      …You’d need to be investigating all the people working on the policy (which OPR can’t do) and implementing it (which OPR can’t do) and then tieing the conspirators together…

      …That’s where SJC and HJC should be headed – a broad ranging investigation into DOJ AND OTHER AGENCY LAWYERS and their professional and LEGAL duties with respect to Congress and the Courts as tribunals. imofwiw

      Though you may have intended to write something like this, I wanted to emphasize that the OPR cannot investigate other Executive agencies and departments. It can only investigate DOJ departments.

      Specifically, it cannot investigate EOP, OVP, CIA, and DoD miscreants.

      Though I would support Congressional investigations, I would far prefer to have an Independent Special Prosecutor with full plenary power and authority to go where ever the trail leads.

      And absolutely no one is off limits, including both the former President and former Vice President.

      • Mary says:

        That is what I meant by the parentheticals, that OPR can’t do those investigations.

        I’m not sure whether, with the Holder leanings to date, I’d really prefer a Special Prosecutor that he’d appoint or not, with the kinds of mandates he’d give – kind of like getting all excited over Mukasey’s pick of Durham (although I admit to having been a complete agnostic on Comey’s inhouse of Fitzgerald until I heard his presser; that won me over on the personal front although I never liked how it was handled on the procedural front).

        If we’re making pies in the sky, I’d want an independent counsel complete with statute for appointment.

        Since neither is likely to happen, at least any time soon, and if they do they’ll be tampered with to the point of making sure nothing comes of them IMO; then I think all you can do on the short run is look to the few outlets that are showing any interest of any kind. That takes you mostly to SJC (Feinstein is a joke re: Intel Com) So what could those guys who are committee or subcommittee chairs validly do to maybe get some balls rolling? I think that’s where they could do the the kind of investigation that I mentioned, with those kinds of parameters, and cover a lot of territory – from states secrets to torture to politicized prosecutions to politicized intel reports to politicized departments to rampant corruption with non-prosecution agreement overtones, etc. – within those boundaries of legitimate, within their scope of purview, investigation into Admin lawyers and duties of candor to the Congress and Judiciary.

        But that’s just my thought – not a manifesto, so ???????? who knows.

        It’ll be what it’ll be.

        • MadDog says:

          Yah, I understand your view wrt Special Prosecutor, and I even share a bunch of concerns.

          But while I wouldn’t specifically object to Congressional investigations (combined SJC and HJC?), I tend to think the existing rump of Repugs still in Congress would make such an investigation into a non-stop circus.

          After all, what have they got to lose? With so little credibility left to lose, the Repugs see obstructionism as their best last option.

          Still, my personal preference is the Special Prosecutor with plenary powers ala Pat Fitzgerald. That this would come with flaws doesn’t dissuade me that it would offer the best available means to bring some justice.

          • Mary says:

            Yes, but what we’ve been seeing is face time hearings – not the kind of blood and guts investigating that they can do, getting in witnesses in front of staff lawyers for real depos and not 5 minutes of questioning, etc.

            Not that I’m holding my breath.

            • MadDog says:

              True! And I don’t object to Congressional investigative hearings, but they’re designed for shedding light and not heat. I like light, but up here on the northern tundra, we’ve got a hankering for heat too! *g*

              By that I mean, there is no prosecutorial component; and further, the most recent of these Congressional investigative hearings (Iran/Contra) ended up screwing any real chance of prosecutions.

              By all means, bring on da light! But please, don’t neglect the heat!

  28. skdadl says:

    This really doesn’t sound very promising, does it.

    I guess I’ll just go back to tracing my proxy interrogations. If Gourevitch (see @ 1) thinks that, gosh, investigating all those entitled people who either gave the orders or followed them is going to be ‘way too big a job to do seriously, let him spend a little time sometime tracing one — just one — case of rendition. Who ordered it? Where were they taken? On suspicion of what? Whose tainted testimony seems to have been used? And how many years is it taking to get perfectly innocent persons out of hell-holes, or even guilty ones, given that it is illegal to torture even the guilty, or even find some of them?

    Try counting the victims, Mr Gourevitch, and try tracing the lines that connect so many of them. You want big? That’s big.

    Gah. I thought that Senator Whitehouse was promising us more than this from the OPR report.

        • MadDog says:

          And I really like this part of the Senators Durbin and Whitehouse statement:

          “…We will be interested in the scope of the ‘substantive comment’ the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter.”

          And that wasn’t my bold and italic either. *g*

          • JasonLeopold says:

            I saw that. At first, I wondered how you were able to make it bold on Durbin’s website!

            Whitehouse has a hearing on this next week so I imagine the report will dominate the hearing.

  29. JasonLeopold says:

    sorry. That was a link to the copy of the letter TO Durbin from DOJ. Apologies

  30. Rayne says:

    Hey, kind of off-topic, and yet related…I was poking around 2001 documents in advance of dates and emails which may be reported soon WRT to the CIA-IG report.

    And I realized that one of the biggest single documents is now in question:

    Deputy Counsel to the President: Memorandum re the President’s constitutional authority to conduct military operations against terrorists and nations supporting them, dd. Sep. 25, 2001.

    Why? Because John Yoo wrote it.

    If his work supporting the case for torture was so bloody flawed, might not his rationalization for the President to act as C-in-C against terrorists be equally flawed? Has anyone ever done an analysis in this light?

  31. TheraP says:

    Here’s a thought. If they’ve released the recommendations first, could it be that once the report is public, we’ll be asking how in the heck could they seek such minor penalties, given all the skulduggery they unearthed? Cuz it seems to me they’re laying the groundwork for “not such a big deal report” via the early release of the recommendations for disbarment. But will the penalties really seem to fit the crimes? Of that I have my doubts. And if so, we need to ready to scream bloody murder if the report points to really dark criminal deeds, which I suspect it will. How can subversion of the Constitution be less than a really dark criminal deed?

    • JasonLeopold says:

      If I can just add a couple of things. There was never any recommendation in the report that there should be prosecution. But the conclusions of the report are “damning” and that’s a quote from Durbin’s office who was briefed on the first draft in February. Not sure if the contents have changed, but the fact that the NYT and others are harping on the “no criminal charges,” as William Ockham pointed out, is really just the media playing up an angle, in my opinion, to drum up readers. The damning part of the report, at least this was in the early draft, is that they violated DOJ professional standards, they failed to cite existing case law, misused existing case law (such as the health care statute) and they acted as advocates for administration policy instead of independent lawyers. So the conclusions that were reached are quite damaging.

      And here’s the clincher: an early draft of the report recommended that DOJ conduct a further investigation. Whether this version has the same language is unknown.

      • JasonLeopold says:

        What I should have said here is that OPR’s probe all along was about whether they violated “professional standards.” So it really is not a surprise that there isn’t a recommendation for a criminal investigation.

        • TheraP says:

          So an institutional or professional investigation, yielding only procedural, not criminal, findings. (Not being a lawyer, maybe I missed the right words here.) But given that type of finding, it seems inappropriate for the report to make any kind of decision of a judicial nature, such as that they should not be prosecuted. Who, but a prosecutor, can make that decision?

          It would therefore seem that irregardless of what a report might conclude, that type of investigation can never rule out criminal prosecutions.

          • JasonLeopold says:

            I just made a couple of phone calls to Judiciary Committee members and I got one person who said he was just told by DOJ that the report doesn’t state, and I’m paraphrasing here, “we don’t recommend, AG Holder, that you prosecute or launch a criminal investigation into Bybee, Yoo and Bradbury.” So something seems off here.

    • fatster says:

      “How can subversion of the Constitution be less than a really dark criminal deed?”

      One of the bitterest aspects of what’s being done, TheraP, is that so much of the subversion of the Constitution has been/is being conducted in plain sight. FISA comes to mind, with retro immunity and all that. Very frightening that they are so slick and brazen. Hopefully, the info on those emails will provide fresh fodder for the super-sharp analytical types here to continue unraveling all those threads in the ugly tapestry that’s been created.
      Tapestry=travesty and all.

    • greenwarrior says:

      subversion of the constitution that results in torture and death of mostly random innocent people.

  32. TheraP says:

    NY Times is now inching its way to the word torture:

    a number of interrogation methods that human rights groups have condemned as torture

    waterboarding — the near-drowning method that President Obama and his aides have described as torture

    God forbid they make an independent journalistic judgment!

  33. radiofreewill says:

    This Field Trip was really only about one thing – Getting Around the Geneva Conventions – so that the Military would Torture for Bush at Gitmo.

    Clearly, the Military had Told Bush – possibly from the very beginning – that they Wouldn’t Go Against the Geneva Conventions.

    Therefore, any programmes introducing ‘Harsh Interrogations’ would automatically invoke consideration of the GCs and limit the Techniques used to the Army Field Manual.

    So, what does Bush do?

    He Pixie Dusts the Geneva Conventions – behind Secret Executive Orders – and has his Lawyers dehumanize ‘redefine’ the key terms used in the GCs.

    Then, Bush makes a big show of telling everyone that “the United States does not Torture. We comply with the Geneva Conventions” – all while he’s actually running a Secret Torture Gulag.

    This 9/25/02 Field Trip to Gitmo shows the Conspirators – Addington, Yoo, Gonzo, Haynes, Rizzo, and friends – the ones who are ‘architecting’ Bush’s desired outcome – the team that is tasked with ‘fixing the Geneva Facts to fit the Bush Torture Policy’ – the Lawyers who are using Secrecy and ‘the Law’ to Immorally serve un-checked Power – meeting with the ’statutory’ Military Authorities responsible for Gitmo.

    Haynes leads off for the Torture Team and tells Dunlavey that Dunlavey already has enough authoritization, via a prior Presidential Order, to introduce the Harsh Interrogation Program at Gitmo – there’s no need to request any additional authorizations.

    That Order won’t meet my need to show Legal Compliance with the Geneva Conventions replies Dunlavey. If you’re asking me to go outside the established Interrogation Programme, then I’ll need Memos showing that the new, Harsh Interrogation Programme is Legally in Compliance with Geneva.

    This why the President’s Counsel, the Vice-President’s Counsel, the OLC’s Counsel, the CIA’s Counsel and the Military’s Counsel are at Gitmo.

    They produce Bybee One in an attempt to show Dunlavey that ‘all the Legal Analysis’ has already been done to lay the foundation for the Harsh Interrogation Programme – the President has the Power to interpret the meanings of the obligations of the United States, they say, and Bybee One shows that when the ‘key terms’ of the Geneva Conventions are ‘re-interpreted’ in the light of the President’s Power to Protect the Country, then the Harsh Interogation Programme is in Full Compliance with the ’statutory’ Geneva Conventions. [This is the same ‘logic’ that Bush uses on Warrantless Wire-tapping, too.]

    Haynes and the Torture Conspirators want Dunlavey to Implement the Harsh Interrogation Programme in Secret, without requesting any further ‘official’ authorizations, because ‘TF-170 already has the power to do this according to a prior Presidential Order.’

    Dunlavey, apparently, says No. He’s not going to hang his ass out to dry on the strength of a secret re-interpretation of Geneva; he says he’ll need additional official authorizations for the Harsh Interrogation Programme from his bosses up the Chain at SouthCom.

    Then Dunlavey sends up to SouthCom the request for clarification on the Koran-Takeaway issue and requests authorization and guidance for Harsh Interrogations.

    Haynes honchos the approval process all the way up to Rumsfeld’s Desk, who approves the Harsh Interrogation Program in Dec. ‘02.

    Which completes the Plan of the Conspirators – to Torture and Evade Compliance with the Geneva Conventions, while getting the ’statutory’ Military to host it Officially.

    To pull it off, Bush had to have All the Lawyers and Rumsfeld in on his plan. He used the Lawyers to paper-over – in Bad Faith – the Harsh Interrogation Programme as Legally In-Compliance with the Geneva Conventions (Bybee One) but Kept the Specific Techniques (Bybee Two) Secretly Compartmentalized to the CIA.

    Then Haynes tries to get Dunlavey to ‘just do it’ as part of his TF-170 Missioning in the Prior Presidential Order, but Dunlavey passes the ball up the Chain to SouthCom. And, presumably, SouthCom then passes up a Request for Clarification on the Koran issue and a Request for Authorization and Guidance on Harsh Interrogations all the way to Rumsfeld – so, on the way up, the Chain did not request approval for any of its own plans.

    On the way down, however, the ‘approved’ Harsh Interrogation Programme was passed from Rumsfeld all the way down to Dunlavey – so the establishment of Command Influence in this case is clear – the Harsh Interrogation Programme came from the Top Down and Claimed Legal Legitimacy from the Highest Offices.

    Once Bybee Two got exposed – Bush’s, and his Conspiratorial Lawyers’, Monsterous Fraud would have been obvious – Bybee Two puts the Lie to any ‘good faith’ that Bybee One may claim in re-interpreting Geneva.

    • Aeon says:

      This Field Trip was really only about one thing – Getting Around the Geneva Conventions – so that the Military would Torture for Bush at Gitmo.

      He Pixie Dusts the Geneva Conventions – behind Secret Executive Orders – and has his Lawyers dehumanize ‘redefine’ the key terms used in the GCs.

      Then, Bush makes a big show of telling everyone that “the United States does not Torture. We comply with the Geneva Conventions” – all while he’s actually running a Secret Torture Gulag.

      This did not happen. Bush announced on Feb 7, 2002 that Common Article 3 of Geneva did not apply to al Qaeda or Taliban detainees.

      It was not until the Supreme Court ruled otherwise in 2006 that the Bush Administration began to change its tune.

      • radiofreewill says:

        Aeon – Check out paragraphs 3,4 and 5 of Bush’s Feb. 7, 2002 Memo – Humane Treatment of Taliban and Al Qaeda Detainees.

        Bush says CA3GC doesn’t apply to Taliban and Al Qaeda, but that the US will treat the Detainees in accordance with the ‘principles of Geneva.’

        I’m suggesting that the Uniformed Military, very early on, had made it clear to Bush that they could not go along with Violating the Geneva Conventions.

        To make that work, I’m saying that Bush had to ‘pixie dust’ Geneva and re-interpret its key terms (Bybee One) so he could Secretly Torture ‘legally’ (Bybee Two) and still say Publicly that he was staying within the bounds of the principles of Geneva – which Bush claimed he was doing all the time.

        Yes, the Supremes finally called Bush on his erroneous rejection of Geneva as not applying to Al Qaeda and the Taliban in 2006, but by then Bush was already four years into Secret Full-Blown Torture through his Secret OLC-approved Harsh Interrogations Programme.

        I’m saying that Addington, Gonzo, Yoo, Haynes, Rizzo and friends knew what they were doing – they were fixing the Geneva facts to fit the Bush Torture Policy in at Gitmo – despite all the assurances of ‘good faith’ Publicly proferred by Bush.

          • radiofreewill says:

            Aeon – After your comment, I did some research on EW’s Torture Timeline, and thanks to you and Mary, this story is making even more sense to me, now.

            What Bush and Gonzales did to DoJ – Politicized it in the name of an Authority Above the Law; Rumsfeld and Haynes attempted to do at DoD.

            As more and more of the story gets put together, imvho, the picture that is emerging is one where We can actually *see* a clearly defined Good Guy – the Uniformed Military – resisting Bush’s Most Powerful Efforts to Politicize the Geneva Conventions – using the Lawyers of the President, Vice-President, DoD, CIA, OLC and others to put maximum pressure on the Uniformed Military Chain of Command to Adopt the Harsh Interrogations fig-leaf for Torture, as Policy.

            Lehnert says No. He’s gone. Dunlavey says No. He’s gone. Miller says Yes.

            There. The Chain of Command facts have been fixed to fit Bush’s Torture Policy – just like Geneva was fixed by re-interpreting some of its facts.

            Bush and Rumsfeld finally got a guy in there who thought like they did – was Ideologically sympathetic to the ’cause’ – that believed, ultimately, that Bush’s Word as the UE was the Law – and if Bush secretly said that his ‘interpretation’ of cruel and inhuman treatment trumped the ’statutory’ reading of the Geneva Conventions – well, then, it did!

            So, not only did Bush cram his Torture Policy and Plan down the throats of the Uniformed Chain of Command, he didn’t hesitate to put ‘team players’ in where he met resistance.

            If investigative authorities could ever possibly get their arms around the scale of Bush’s Mis-use of Power, this would be a clear-cut case of Unlawful Command Influence against Bush as the CIC.

            On a deeper level, imvho, Consciously conspiring to circumvent the Geneva Conventions, one of Our Congressionally Ratified Treaty Obligations, is nothing less than Treason Against the Constitution.

            When the dust finally settles, I think We’ll find that the Republic was Saved because the Uniformed Military stood their ground and defended the Geneva Conventions against Bush’s Ideology-Over-the-Rule-of-Law assault – and that, ultimately, when Bush lost the support of the Military, he was left the Omnipotent UE in name only – no longer able to back up any threats to suspend the Congress and place the Country under Martial Law in his Phony War on Terror.

            Miller says Yes, and what do we find at Abu Ghraib? Bush’s Harsh Interrogation Programme on full display in living color in the hands of ‘a few bad apples.’

            • pdaly says:

              Nice summary. It’s a good reminder that things are never monolithic. Also it’s good to remember some key people, even though they were steamrolled, did stand up to BushCo.

              I remember hearing that the military units were being kept in the dark, news blackouts about any American unrest with BushCo. Fox News was broadcast to the troops nonstop, however.

              I assume there was a time when it was off limits to surf FDL and TheNextHurrah. If true, I wonder if the US military allows Emptywheel and FDL through the iron curtain now?

            • TheraP says:

              So, not only did Bush cram his Torture Policy and Plan down the throats of the Uniformed Chain of Command, he didn’t hesitate to put ‘team players’ in where he met resistance.

              So, the Repubs were FOR cramdown before they were against it!

              Many thanks to Mary and radiofreewill for the excellent summaries.

              nothing less than Treason Against the Constitution

              I sure agree with that!

              You’ve masterfully assembled the pieces. And explained where we are now.

    • Aeon says:

      Of course, a good case can be made (and you did) that the entire covering opinion charade was an effort to evade Geneva if push ever really came came to shove. And that is essentially what transpired.

      Gonzo’s memo of Jan 25, 2002 expressly warned Bush that violations of Geneva were war crimes and death penalty offenses — thus the need to claim from the getgo that Geneva did not apply.

      Your post was an interesting dramatization of the GITMO visit.

    • Mary says:

      Couple of add-ons

      The original commander at GITMO absolutely wouldn’t play ball on torture.…..02313.html

      In Jan 2002, Marine Brig. Gen. Michael Lehnert deployed to GITMO.

      Lehnert said he had been told by the Joint Chiefs of Staff that the Geneva Conventions would not technically apply to his mission: He was to act in a manner “consistent with” the conventions (as the mantra went) but not to feel bound by them.

      Lehnert told me that he felt he had no choice but to rely on the regulations already in place, ones in which the military was well schooled: the Uniform Code of Military Justice, other U.S. laws and, above all, the Geneva Conventions. The detainees, no matter what their official status, were essentially to be considered enemy prisoners of war, a status that mandated basic standards of humane treatment

      The task force set to work around the clock, processing the detainees upon arrival, administering medical treatment and providing general care in the cells of the newly built Camp X-Ray. Lehnert’s lawyers studied the 143 articles of the Geneva Conventions, paying particular attention to Common Article 3, which prohibits “humiliating and degrading treatment.”

      Lehnert tries to set up a ICRC visit, to get input from them on handling of the prisoners. He gets shut down – finally one of his guys (Supervielle) gets exasperated and calls ICRC himself, despite being told that Rumsfeld was against the ICRC getting access.

      Remember that by Dec 2001, DoD was already investigating the use of SERE derived torture techniques. Now the ICRC has been called to the Den in Inequity. The ICRC shows up in Jan 2002 and fairly quickly:

      Brig. Gen. Lehnert had built his own Guantanamo, one with ICRC oversight, a Muslim chaplain and an overriding ethos that stressed codified law and the unwritten rules of human decency. Lehnert’s team let the detainees talk among themselves; it provided halal food, an additional washing bucket inside cells that lacked toilet facilities, a Koran for each detainee, skullcaps and prayer beads for those who wanted them, and undergarments for the prisoners to wear at shower time, in accordance with Islamic laws that proscribe public nakedness.

      By the end of Jan 2002, Rumsfeld was pissy that he hadn’t gotten good intel from the human flotsam he had purchased for interrogations, so he decided to create a parallel chain of command at GITMO, bringing in Dunlavey, “a former U.S. Army interrogator during the Vietnam War.” About that time, the original crew began to realize that they wouldn’t be building a courtroom. Some isolation torture facilities maybe, but not so much the courtroom they had been expecting.

      As Dunlavey’s command took shape in late February and early March, the fabric of prisoner’s rights that Lehnert had woven was beginning to unravel. By the end of February, nearly 200 detainees had mounted a hunger strike to protest their treatment. Interrogations, not trials, had become the future of Guantanamo.

      After Lehnert works to wind down the hunger strike by actually treating the detainees like they were human beings – his butt gets kicked off the island. Dunlavey gets the run of the joint and by summer … everyone is AGAIN wondering why they aren’t getting any good intel out of GITMO (and btw, Sibel Edmonds and the “tomato/cash” story and others are highlighting that they don’t have decent translation even for the detainees who are talking).

      Cut to Mayer’s book, where “in late summer” the CIA is sending a specialist to the see what the problem is and he comes back with a report (a written report – one we haven’t seen yet) that says — a big problem is that you have about 1/3 complete non-combatants down there, and of the mujahadeen fighters you have there, a big chunk had nothing to do with al-Qaeda or the Taleban. IOW – a big chunk of “protected persons” under the GCs where illegally shipped to GITMO and have now been subject to the human interrogation experiments being conducted there and the abuse involved in those experiments.

      Whether that predated or postdated Yoo’s August memo would be nice to know. In any event, Bellinger sets up a meeting with the analyst and a ret Gen consultant to the NSC, they go off to see Gonzales (dates would be nice – I’m not sure if anything about this is in the SSCI report) and lo and behold, Flanigan and Addington are there waiting for them and tell them that “they aren’t innocent if the President says they are gulity” or something along those lines (Addington – the President has said they are enemy combatants – please use that term – and we won’t revisit that).

      In the context of all of that –
      soliciations of torture info in at least Dec 2001;
      Lehnert and decency deliberately removed;
      memos on torture solicited; and
      direct briefing that many of the detainees are innocent (and btw, Dunlavey tells the CIA analyst that he (Dunlavey) thinks the number who were never any kind of combatant at all is closer to 50%, bc they didn’t bother to have the analyst interview any of the old/on walkers infirm, children and the mentally infirm and if you factor them in, the numbers explode) –

      – the Addington crew takes there Sept torture field trip.

      And by then, even Dunlavey isn’t what they wanted – he has some pushback. Good thing for them they have Miller.

      And one more problem. None of the OLC memos even pretended to try to tackle the problem of the UCMJ rules on treatment of detainees, that existed separate and apart from the GCs. How were those dealt with?

      By Haynes issuing an opinion? Nope, by the Beaver memorandum – a thrown together memo by a lower ranking officer without good research support stationed at GITMO, who spits out an opinion that says – eh, it’s ok to violate the UCMJ if your superior officer orders you to.

  34. JasonLeopold says:

    From OPR’s guidelines:

    Post-investigation Procedures

    At the conclusion of the investigation, OPR makes findings of fact and reaches conclusions as to whether professional misconduct has occurred. OPR may find professional misconduct in two types of circumstances: (1) where an attorney intentionally violated an obligation or standard imposed by law, applicable rule of professional conduct, or Department regulation or policy, or (2) where an attorney acted in reckless disregard of his or her obligation to comply with that obligation or standard. OPR may also find that the attorney used poor judgment or made a mistake; such findings do not constitute findings of professional misconduct.

    If OPR determines that no misconduct or poor judgment occurred, the attorney who was investigated, the complainant, and other appropriate parties are notified of that result.

    If OPR determines that professional misconduct or poor judgment occurred, it prepares a report containing its findings and conclusions, and provides that report to the Deputy Attorney General as well as the appropriate Assistant Attorney General, the Director of EOUSA, or other appropriate component head. In addition, if OPR finds professional misconduct, it will also recommend an appropriate range of disciplinary actions for consideration by the attorney’s supervisors (see further discussion below). In cases of poor judgment, the attorney’s supervisors may consider training, reassignment, or disciplinary action.

    OPR may include in its report information relating to management and policy issues noted in the course of the investigation for consideration by Department officials.

    Pursuant to OPR’s Routine Uses under the Privacy Act, OPR ordinarily notifies the complainant of the results of the investigation at the same time OPR provides its report of investigation to the relevant Department component.

    • Mary says:

      That’s the kind of thing I would have expected and is indicative of the fact that making criminal investigation referrals is not a prime function of the office. It may well be that they did anyway, bc things were so egregious, and that has been massaged away as being “outside their mandate” in the behind closed doors negotiations, while the lack of a criminal referral is then touted in the press as meaning something.

      How much of the OPR report is classified (if any) will be important too. Keep in mind that state bar associations aren’t going to have classified clearance and wouldn’t actually be likely to support having “secret evidence” given to them to take action on vis a vis an attorney complaint.

      IOW – don’t expect much from the state bars – unless there is a lot I don’t expect to see in that report, they aren’t holding a lot of cards when it will come to pursuing discipline.

  35. JasonLeopold says:

    OPR Investigative Guidelines cont’d

    . Formal Disciplinary Action Based on OPR Findings

    While OPR recommends an appropriate range of discipline in cases of professional misconduct, the decision whether to propose discipline and the nature of the action to be taken rests with the attorney’s supervisors. Disciplinary actions against DOJ attorneys are governed by the DOJ Human Resources Order, chapter 1200, and include written reprimand, suspension, demotion, or removal. If a proposed disciplinary action is based on material included in an OPR report, that material must be disclosed to the attorney. Otherwise, the attorney involved in the allegation does not have a right to review the entire OPR report, which often contains confidential information regarding other employees or findings regarding management issues noted during the investigation.

    11. Referral of Findings of Professional Misconduct to Bar Disciplinary Authorities

    In cases in which it finds professional misconduct (either intentional misconduct or conduct in reckless disregard of an applicable standard or obligation), OPR ordinarily advises bar disciplinary authorities in the jurisdiction where the attorney is licensed of its finding. Such a referral is not made if OPR determines that the matter involves purely federal or Department concerns and no bar disciplinary rule appears to be implicated. OPR’s investigative information may be disseminated to assist state bar disciplinary authorities to meet their responsibilities. 63 Fed. Reg. 68299 (12/10/98)

    • TheraP says:

      Very helpful, Jason! So this is very serious then, given their guidelines and the fact that they “found” professional misconduct. Given that, I think, as Senator Whitehouse and others have suggested, this report is going to be devastating.

      What remains to be seen then is whether the professional misconduct is “intentional” or in “reckless disregard” – both of which sound ominous to me.

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