John Rizzo’s Nomination and the Bybee Two Memo

On August 23, 2006, Jello Jay Rockefeller wrote to Michael Hayden requesting a number of documents in relation to John Rizzo’s nomination to be CIA’s General Counsel. In addition to a list of all OLC memos and access for the full committee to the 2004 CIA IG report on torture, Rockefeller asked for materials relating to the Bybee Two memo listing all the torture techniques CIA could use. As with the IG report, Jello Jay asked that all committee members be able to read the document (starting on page 15).

[For Bybee Two] the question is not whether it should be delivered [to the Committee], for it is here, but whether all Members of the Committee and their staff assisting them in preparing for the hearing may read it. The Senate has referred the nomination to the full Committee, not to the Chairman and Vice Chairman alone. Each Member must decide how to vote. In doing that, each should be able to ask those questions that he or she deems necessary for an informed vote. The memo was requested from OLC for the CIA by the nominee and he had responsibility for implementing it. Members may therefore wish to question him about it.

And in a section asking for more information about Rizzo’s role in buying off on torture policy (and following a completely redacted paragraph), Jello Jay asked specifically about Rizzo’s role in formulating Bybee Two.

The focus of the requests described above concerns matters relating to and following the August 2002 Second Bybee Memo. There were also important decisions about U.S. legal policies related to counterterrorism, including on such matters as the application of the Geneva Conventions, that preceded the Bybee Memos, and my understanding is that the nominee had a role in that process, both within the CIA and outside of it. It will therefore be important to assess his participation in the formulation of those policies. Accordingly, in addition to documents relating directly to the Second Bybee Memo, please provide documents authored by the nominee, or prepared under his supervision, that set forth the nominee’s contribution to the development of U.S. legal policy after the September 11 attacks.

The request is important for several reasons. First, it asks to what degree Rizzo was involved in the shredding of the Geneva Conventions, particularly repeated exemptions even from the flabby support of the GC applied to other agencies. Jello Jay’s reference to Rizzo’s activities "within the CIA and outside of it" address his role in the War Council–Addington’s group of lawyers (which also included John Yoo, Jim Haynes, and Alberto Gonzales) that spearheaded these issues.

And, Jello Jay’s request should have clarified where Rizzo got the representations that provide the foundation of Bybee Two: that Abu Zubaydah wouldn’t cooperate except under torture and that he was mentally and physically fit to be waterboarded. As I have suggested, there is abundant evidence that those representations were false. By asking for this information, Jello Jay was asking for evidence that might have undermined the entire argument for torture.

But it appears that CIA refused to provide this material.

Michael Hayden did not respond to Jello Jay’s request until the following January, after Rockefeller had taken over the Chairmanship (and therefore the ability to control hearings and votes) of the Senate Intelligence Committee. In a letter dated January 16, 2007, Hayden pretty much told Jello Jay and the Committee to fuck off (starting on page 11).

Since your August 23, 2006 letter, which, among other things, requested information concerning the legal basis for the CIA’s detention program, I have provided comprehensive briefings to the Senate Select Committee on Intelligence regarding the details of the CIA’s detention program. In those briefings, I made it clear that the CIA’s detention program had been, and would continue to be, in full compliance with the Constitution, U.S. law, and U.S. treaty obligations. I also informed the Committee that I would work with the Administration to provide you additional information about the program, to include its legal foundation.

After discussions with the Attorney General and others within the Administration, and in keeping with my previous statements to the Committee, I am offering your Committee a briefing by officials from the CIA’s Office of General Counsel and the Department of Justice’s Office of Legal Counsel on the legal bases for CIA’s detention program. By doing so, we can address the Committee’s outstanding concerns about the program, as well as address the issues in your August 23 letter.

Note who Hayden consulted on this decision: then Attorney General Alberto Gonzales and "others within the Administration." Sure, as AG, Gonzales oversaw OLC. But his own role in authorizing torture–as well as that of David Addington’s–would likely be exposed by such documents. Any bets on whether Addington was consulted, too?

It doesn’t appear that SSCI had a hearing addressing these issues in early 2007–certainly not before Rizzo’s confirmation hearing on June 19, 2007. And the SSCI narrative notes that the committee finally received all the OLC opinions in May 2008, long after Bush withdrew Rizzo’s nomination in September 2007.

On May 19, 2008, the Department of Justice and the Central Intelligence Agency (CIA) provided the Committee with access to all opinions and a number of other documents prepared by the Office of Legal Counsel of the Department of Justice (OLC) concerning the legality of the CIA’s detention and interrogation program. Five of the documents provided addressed the use of waterboarding. Committee Members and staff reviewed these documents over the course of several weeks; however, the Committee was not allowed to retain copies of the OLC documents about the CIA’s interrogation and detention program.

But it’s not clear whether Rizzo’s own documents would be included among the "other documents" provided to the committee (since those documents came from OLC). Indeed, given that the SSCI narrative focuses on the NSC, and not the "War Council," in its description of the genesis of the torture approvals, it appears that the Committee didn’t have these documents before the narrative was finalized.

I wonder if anyone has asked for them since?

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54 replies
  1. readerOfTeaLeaves says:

    Michael Hayden did not respond to Jello Jay’s request until the following January, after Rockefeller had taken over the Chairmanship (and therefore the ability to control hearings and votes) of the Senate Intelligence Committee.

    Just an observation: IIRC, during Hayden’s Senate confirmation hearing, Sen Ron Wyden (D-Or) stated on the record that he’d read things ‘on the front page of the NYT’ that he should have been told in closed hearings.

    Oversight?
    Not so much.

    Also interesting that Jello Jay had taken to making hand-written notes; clearly, he didn’t trust anyone by that point. Hayden must think the Senate is a pack of chumps.

  2. Loo Hoo. says:

    I’m getting all bungled up. So Rizzo was only acting CIA General Council, but never confirmed?

    • MadDog says:

      John Rizzo is still acting General Counsel at the CIA.

      Which is something that I can’t begin to comprehend with both the change in Administration, and the longstanding and obvious low regard he was/is held in by the Democratically-controlled Senate.

      One would think that Rizzo would have been near the front of the line for being thrown overboard with the new Obama Administration.

      At the very least, one would think the Obama Administration would have had a new nominee unveiled by now to replace Rizzo.

      Can I remark that neither has surfaced even publicly at this point in time, and just how very strange that is?

        • MadDog says:

          Heh!

          Yes, by keeping Rizzo on the government’s payroll, and particularly still in a crucial position at the CIA’s Office of General Counsel, the Obama Administration can require him to come clean to any and all government investigations that both the Obama Administration and Congress are not undertaking.

          Heh, indeed! *g*

          • Jkat says:

            oh wow .. that is good chess ..eh .. we’re preserving all that trutzhful testimony we’re not getting for the hearings we’re not holding .. that’s pretty much an un-slam un-dunk ain’t it now … ??

            h..e..a..v..y …

            and hey .. BTFalls :
            as to:

            i’m curious how we’d compile a summary of “what we don’t know” .. but i appreciate the spirit and the thought-provoking qualities of that question …

            [burp] “g”

      • Loo Hoo. says:

        Thanks. That’s what I thought, just didn’t realize he’d never been confirmed. And yes, why is he still there?

      • emptywheel says:

        He nominated this guy on May 11:

        Stephen Woolman Preston, of the District of Columbia, to be General Counsel of the Central Intelligence Agency, vice Scott W. Muller, resigned.

    • alabama says:

      Do you get the feeling, sometimes, that the more we know about things that Congress doesn’t know, the less we learn about things that Executive branch bureaucrats don’t know either?

      It may rarely happen, but surely occasions arise where folks at Justice or the CIA just don’t know what Congress is asking about. If so, they’ll never admit it–for the same reason that newspapers won’t admit it: they’re being paid to be omniscient.

      Some time ago, a major national paper published an article that was both slanderous and factually wrong. I pointed this out to the editor–citing published evidence to prove it–and the editor was rightly alarmed. His solution to the problem? He fired subordinates directly responsible for the article, but never published a correction or a retraction: papers, like bureaucrats, will do everything to avoid this, which makes for difficult reading.

      • Minnesotachuck says:

        There’s a similar problem with many prosecutors. They are so convinced they’ve put the right people in the slammer that they fight tooth and nail against the reconsideration of a verdict on the basis of DNA and other evidence that wasn’t available at the time of the trial, and even if they lose that battle fight the reversal of the verdict to the very end.

  3. MadDog says:

    And even partly on topic, evidently former Secretary of State and former Chairman of the Joint Chiefs, Colin Powell was on CBS Face the Nation this morning still trying to tiptoe through the torture tulips:

    …He said that he was aware that enhanced methods of interrogation were being considered in the aftermath of 9/11 but said he was “not privy” to the memos of legal documents that were being written.

    “I think it was unfortunate but we had a system that kept that in a very compartmented manner. And so I was apart that these enhanced interrogation techniques were being considered. And they were judged not to be torture at the time,” he said.

    He argued that when “facing the possibility of a 9/11, you had to give some — some flexibility to the CIA,” noting that these methods were stopped under the Bush administration.

    “It’s easy now in the cold light of day to look back and say, you shouldn’t have done any of that,” Powell said…

    • Palli says:

      ….in the cold light of day…

      That is the trouble with Powell and so many other morally slack individuals in this 8 year nightmare, they have no clear moral compass that can go into gear contemporaneously with events. Seems to me there were plenty of cold days during those years.

      • MadDog says:

        I agree completely!

        Moral compasses seem to only be brought out and cursorily examined when folks in the driver’s seat envision possible legal heat is in the offing.

  4. Jkat says:

    [1] an “informated vote” [from the first quoted para] eh …

    hmmm.. sets off alarms in my spellin’ checker …

    and [2] your use of “formaulting” ..in the short line between the two jello-jay quotes early on .. ??

    i thanks ya …typos an all ..

  5. Mary says:

    Hayden (in uniform):

    I made it clear that the CIA’s detention program had been, and would continue to be, in full compliance with the Constitution, U.S. law, and U.S. treaty obligations.

    emph added.

    What an interesting approach to defending the Constitution – using Executive branch lawyers to set up a system that deliberately uses Executive power to avoid judicial reveiw and then putting on his uniform to go lecture Congress on what US laws they pased and treaty oblications they confirmed mean, according to, um, his egocentric “I” and again using Executive power to do it in a way where only a few members of Congress get any cherrypicked info and can not respond.

    The real story in all of this has been the Pentagon and CIA and DOJ’s decision to piss on the other two branches of government – especially the DOJ’s decision that its lawyers can lie to Congress and Courts with impunity and destroy evidence and both generate legislation and case law in the form of secret OLC opinions.

    And then they pat themselves on the back as heroes.

  6. bobschacht says:

    Thanks for this, EW!
    Is Rizzo still on the job advising Panetta? When is he leaving, and who is supposed to replace him?

    BTW, in the paragraph after the first block quote, I find the word “formaulting”– perhaps you meant “formulating”?

    Thanks,
    Bob in HI

  7. JohnLopresti says:

    “hearing held” May 15 2007 R’s formal statement. Might ask DisgruntledCanus: is there a transcript? though SSCI likely does not do transcripts much. On tenure under new administration, maybe the calculus is to brook that divide when the current dni knows what sort of candidate to suggest, LeonP used to be a consensus sort of member when in the lower chamber, but appeared to have a more definitive m.o. in the White House post.

  8. nadezhda says:

    EW wrote:

    But it’s not clear whether Rizzo’s own documents would be included among the “other documents” provided to the committee (since those documents came from OLC). Indeed, given that the SSCI narrative focuses on the NSC, and not the “War Council,” in its description of the genesis of the torture approvals, it appears that the Committee didn’t have these documents before the narrative was finalized.

    I wonder if anyone has asked for them since?

    Is this likely to be within the scope of DiFi’s current investigation?

    • emptywheel says:

      I’m not sure. I asked Whitehouse for some details at our chat on Friday, but he didn’t answer. (He didn’t answer any of my questions about classified info, damnit!!)

      I’ve heard they’re approaching it as a detainee by detainee process. But you’d think they would have gotten those documents, at least when they were reviewing Abu Zubaydah’s treatment.

  9. behindthefall says:

    I’m not ashamed to admit it: I’m lost. Is there a summary anywhere of what we have learned and what we still don’t know?

    • emptywheel says:

      Nope, sorry. But what confused you?

      The SSCI apparently has ALL OLC memos (though I suspect if Dawn Johnsen ever gets her job, we’ll find more that technically apply). But we’re still missing some from 2006 and some from 2007.

      But my more general question is what kind of paperwork backs up Rizzo’s representations to Yoo and Bybee about AZ’s interrogation thus far.

  10. MadDog says:

    …It doesn’t appear that SSCI had a hearing addressing these issues in early 2007–certainly not before Rizzo’s confirmation hearing on May 15, 2007…

    And for the record *g*, that May 15, 2007 hearing was actually:

    Open/Closed Hearing: Nomination of John Rizzo to be CIA General Counsel – Postponed, New Date to be Determined

    The real Rizzo hearing was on June 19 2007, the next month.

    From pages 5-6 of Rizzo’s statement for the record (PDF) at that hearing:

    …I will be responsive and forthcoming in answering your questions in this open session. I suspect that the Committee will have questions – especially with respect to legal issues I have been involved with in this post-9/11 era – which I can only address in closed session. Again, however, I pledge to be informative and candid in responding to those questions.

    (My Bold)

    Note that it is unknown whether there ever was a “closed hearing” that Rizzo references as necessary to answer Committee’s questions.

    And note the irony of this portion:

    …Let me briefly address one substantive issue in my remarks, and that is the crucial issue of Congressional oversight of intelligence activities. Until now, the seminal event in my CIA legal career took place two decades ago, when I was the Agency’s focal point in dealing with the Joint Committee investigating the Iran/Contra Affair.. As the year-long Congressional probe played out, I saw first-hand the tremendous damage my Agency sustained, and all of it stemmed from the fact that, as an instituion, CIA had kept the Intelligence Committees in the dark about a significant, high-risk covert action program. Worse yet, a few senior CIA officers – people I had worked with and admired for years – wound up being prosecuted for misleading Congress about their roles in the program…

    (My Bold)

    • emptywheel says:

      YEah, that Iran-COntra bit was by far my favorite part of his testimony. To thing this guy advocated a policy of maknig Congress complicit with the CIA’s crimes, which would have worked like a charm if Congress had actually been informed properly.

      Now, not so much.

    • Mauimom says:

      when I was the Agency’s focal point in dealing with the Joint Committee investigating the Iran/Contra Affair.. As the year-long Congressional probe played out, I saw first-hand the tremendous damage my Agency sustained, and all of it stemmed from the fact that, as an instituion, CIA had kept the Intelligence Committees in the dark about a significant, high-risk covert action program. Worse yet, a few senior CIA officers – people I had worked with and admired for years – wound up being prosecuted for misleading Congress about their roles in the program

      Thanks so much for this quote.

      It appears he’s got tears in his eyes just thinking of those poor CIA guys who got prosecuted, PROSECUTED for the namby-pamby “crime” of lying to Congress.

      And look where we are now because there wasn’t full investigation + prosecution, but instead grants of immunity & pardons.

  11. emptywheel says:

    Incidentally, one thing on Rizzo’s ongoing employ.

    First, since he was never approved, he remains Senior Deputy GC, or something like that–it’s not a political appoint, so it makes it harder to fire him (there was actually discussion about this when he was up for nomination).

    But also, I think Rizzo cooperated quite quickly in the torture tape destruction (he testified to Congress about it in January 2008). While I think he’s utterly reprehensible, from what i know, he may still be employed with the federal govt bc he is in the middle of that investigation.

    • MadDog says:

      First, since he was never approved, he remains Senior Deputy GC, or something like that–it’s not a political appoint…

      Ahhh…now it becomes clear as to his continued employment. Didn’t even consider that he wasn’t a political appointee, but should’ve since he’s been at the CIA for 35+ years.

  12. Loo Hoo. says:

    OT…I’m not familiar with John Perr, but wondering if we’ll get your take on this, EW?

    “Senator, that I don’t recall remembering.” With those six words uttered during the furor over his purge of U.S. prosecutors, former Attorney General Alberto Gonzales likely etched his epitaph. But as it turns out, “hypothetical” may be the most important word Gonzales ever spoke to Congress. New revelations this week suggest that in the spring of 2002 then-White House Counsel Gonzales personally approved the use of waterboarding, months before the Justice Department’s infamous Bybee memo blessed the practice. By labeling such questions “hypothetical” during his 2005 confirmation hearings, Attorney General Gonzales may well have committed perjury.

    • emptywheel says:

      I think we’ll find people lied in hearings, but AGAG is at more risk for his “more than one program” comment than for his “hypothetical” here. BC he can say that waterboarding is not torture and therefore the notion that we violated lies against torture is hypothetical.

      I also think those who had the JPRA document calling waterboarding torture (Haynes, Rizzo, and Yoo/Bybee apparently all had it) are at more risk.

      • Mary says:

        BC he can say that waterboarding is not torture and therefore the notion that we violated lies against torture is hypothetical.

        Except that case law says to the contrary and an OLC opinion doesn’t really make new case law, despite the DOJ’s attempted coup of the Sup Ct.

        Mistake of law is no defense.

          • Mary says:

            I think that perjury on the statement is a tough row, but not because he can say waterboarding is not torture (he can’t – that isn’t the status of the law) or that bc of that[i.e., waterboarding not being torture] it was hypothetical.

            Obstruction and perjury also don’t have the same standards.

  13. skdadl says:

    my understanding is that the nominee had a role in that process, both within the CIA and outside of it.

    What a wonderful clause. From where would Rockefeller have derived his understanding at that time (August 2006)? Would that put him ahead of any public knowledge, even speculation (from, eg, informed journalists), about a group like the War Council? It’s curious to see these things confirmed separately, even if not that far back.

    • emptywheel says:

      I think there were already reports of the war council. But that’s a good question–it doesn’t appear in either Suskind’s One Percent or Risen’s State of War, which were the early reporters on this stuff.

      But I think it showed up in the WaPo or NYT by 2006.

      • skdadl says:

        Ah.

        It’s the crossovers who have become the burr under the saddle for me lately, anyone who seems to have had a role outside of his official role. Right away, the antennae start to quiver. Haynes does that to me too.

        (Please forgive mixed metaphors.)

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