Condi’s Okay Came After OLC Approval

Here’s an interesting data point.

On July 13, 2002, representatives of CIA’s Office of General Counsel (probably John Rizzo) met with John Bellinger, John Yoo, Michael Chertoff, Daniel Levin, and Alberto Gonzales for overview of interrogation plan. That very same day, Yoo wrote Rizzo, generally laying out the logic he would use in the later memos approving the program. He wrote:

Moreover, to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose of causing prolonged mental harm in order for the use of any of the predicate acts to constitute torture. Specific intent can be negated by a showing of good faith. Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental pain or suffering, he would not have acted with the specific intent necessary to establish torture.

Four days later, Condi told George Tenet the "CIA could proceed with its proposed interrogation of Abu Zubaydah … subject to a determination of legality by OLC."

In other words, OLC had already given CIA a pretty broad okay before Condi gave Tenet the policy okay.

One more detail of interest. Note the redacted name on the second page of the letter–perhaps as long as 16 characters long. That’s too long to be Jay Bybee or Pat Philbin (though it could be Patrick Philbin). Though it’s probably long enough to be either Robert Delahunty (who had partnered with Yoo on some other crazy opinions by that point) or David Addington. Or, heck, even Alberto Gonzales. Whose role in the torture approval process is DOJ trying to hide?

Update: One more detail of interest. On June 22, 2004, the same day Goldsmith, Comey, and Philbin withdrew the Bybee Memo, John Rizzo sent this earlier approval to Philbin. That seems to suggest that Philbin did not know about it and may even suggest that it wasn’t in OLC’s records (though Philbin, by that point, worked under Comey at DAG. 

37 replies
  1. Mary says:

    How does Timothy Flanigan fit? Or a variation thereof? I think probably not Delahunty bc I don’t know that they would have the same grounds for redacting his name that they might claim for someone in OVP or WH (and of course, Addington hits both notes) So I’d go Addington as a first guess, but then Flanigan if it fits. He probably also has enough friends and pals still around who would try to look out for him

    PS – Can someone at Boalt give Yoo a primer on specific intent and natural and probable consequences? Reasonably foreseeable? Hell, does Boalt have anyone available who CAN give that primer? Apparently the dean still can’t quite understand how Yoo having direct and firsthand knowledge of all of this while courts were being lied to and never acting to protect evidence, put on lit holds, or correct the record is a *problem* as opposed to being just a matter of intellectual freedoms.

    • JThomason says:

      Of course you understand that this practice of marginalizing natural legal considerations is a species of the kind of prescriptive reasoning that Scalia is so fond of in his approach to enumerated rights arising of the imprimatur of the state. So many of the primary legal questions from the point of view of Yoo and his ilk were jurisdictional and the continental bias of an executive retaining the power to disregard the law as an aspect of sovereignty is preeminent. Ironically, though no consideration is given to Constitutional developments intended to curb such sovereignty. It is odd that Yoo would even go to the effort though. Addington and Yoo and their ilk knew they were entering into a gray area and must have had some certainty that their opinions would never suffer judicial review. Clearly the thinking is that in a theater of war notions of a duty to guard against reasonably foreseeable harm or even inherently dangerous activities readily is discounted even if the a civilian population bears the brunt of the intentional recklessness of war.

      I know you were pessimistic about the outcome in Boumediene but Justice Kennedy showed up and took a stand against efforts to eroded clearly demarcated jurisdictional boundaries in the context of the theaters of war, not that this gave much hope of a reasonable civil remedy to those harm by collateral damage. That the pretense of allowing executive opinions steeped in political considerations juridical weight is becoming normative is indicative of the erosion of the Constitutional capacity to check arbitrary executive action, the very heart of tyrannical behavior. Addington and Yoo, as again, I am sure you are quite aware, are really acting more as an body of presidential priests than as lawyers. They are members of a collective guild of sophists and delicate retainers to whom natural legal concepts and consequences are but obstacles.

  2. scribe says:

    Answering your last question: Delahunty. He’s been flying under the radar for entirely too long and is equally as culpable as Yoo when it comes to these cockamamie opinions. While Yoo is busy fending off Australian TV comedians crashing his classes, Delahunty’s off teaching constitutional law at some nice Catholic law school in Minnesota, last I checked, getting ready no doubt to come back in the next Rethug administration.

    And, as to Addington, he’s already hanging out there.

    • Mary says:

      Yeah – I think there’s no reason to redact an OLC lawyer. Only a non-OLC lawyer, who is also being touted as a go to on getting answers on what is supposed to be an OLC work product. So I trend towards Flanigan or Addington, guys at the center of all the torture regime issues, but not in OLC.

  3. perris says:

    I made the following point downstairs, more apropos here;

    The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering):

    that’s a complete contradiction of terms, the very purpose of said techniques IS to cause severe physical and mental pain and suffering, that is the VERY purpose

  4. WilliamOckham says:

    I’m going to guess that the name is of some secretary or admin assistant. They don’t give any reason for the redaction. The only really viable one would be privacy concerns.

    Somewhat off-topic, but if you take a close look at the torture certificate they were handing out, you’ll notice that the vaunted four week training course apparently only took two days.

    The start date is listed as 16 Nov and the certification date is 18 Nov.

  5. Hmmm says:

    Today in Parsing

    … an individual must act with specific intent, i.e., with the express purpose of causing prolonged mental harm… if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental pain or suffering…

    If we accept that, then how could we not also accept the following?: If an individual had been informed prior to the interrogation session that the prisoner was slated for execution at the conclusion of interrogation, even if no such execution was actually carried out nor even actually planned, then from the individual’s perspective the duration of any mental pain or suffering caused during the session would not be particularly long. Therefore, under such circumstances, no extent of harm, however great, could ever be so extreme as to constitute torture.

    You could make the same argument for an expected death from a fatal illness (real or not), from injuries received in prior sessions, or even from injuries received in the instant session (though in that case there would be murder liability instead of torture liability — though hey, I’m sure they have some demented Get Out Of Jail Free card for that too).

    This whole line of thinking is just way too full of holes to be allowed to stand.

  6. bobschacht says:

    Thanks for being all over the new material, including this. I won’t be able to keep up very well today, but I did notice this in your quote block:

    Specific intent can be negated by a shoring of good faith.

    Shoring = showing?

    Thanks again, and congrats to Mr. EW!

    Bob in HI–>AZ

  7. beguiner says:

    So having “Good Faith” is the necessary pixie dust to make these interrogations “OLC-Kosher”. Nice.

    Congrats to hubby on the thesis defense.

    • Hmmm says:

      Faith –> Pixie dust sez you, and what do I see on the right but the original pixie Tinker Bell herself (“If we stop believing in her, she’ll die!”) in a USDOE “You Don’t Need Magic to Use Energy Wisely” ad.

  8. bobschacht says:

    Whose role in the torture approval process is DOJ trying to hide?

    This just proves the point that the redactions are NOT about national security, but CYA.

    Bob in HI–>AZ

  9. WilliamOckham says:

    In some ways this letter from Yoo to Rizzo is perhaps the most damning thing there is. Just look at that first line:

    This letter is in response to your inquiry at our meeting today about what is necessary to establish the crime of torture…

    The Acting General Counsel of the CIA asked the Deputy Assistant Attorney General of the United States, Office of Legal Counsel about the elements of a crime, not because he was interested in stopping that crime from occurring, but because he wanted to know how much they could get away with. How can anybody pretend that this crap was done in good faith.

    • Rayne says:

      Agh. Cannot believe they relied on someone stupid enough to type that out, can you?

      Jeebus. Not only manifest lack of good faith, but criminal intent, right there in print.

      And our tax dollars funded his paycheck, too.

      • LabDancer says:

        That may be the single weakest line in this Rube-Goldberg-on-meth reasoning chain — & at the same time possibly provides the greatest protection for those involved in the construct.

        As has been pointed out, not just here but in numerous prior threads, to the extent the contraption relies, or appears to rely, on the widget of specific intent, it’s totally vulnerable to a host of well developed, well understood related LIMITING concepts, for example wilful ignorance a.k.a. wilful blindness a.k.a. ostrich-ism.

        The trick [or genius I tells ya] to avoiding those nagging limits is to jump, not the shark, but the whole sharktank, plus a couple of rows into the concessions section, to “good faith” — an element of the potential RESPONSE to being caught in the cross-hairs of ostrich instructions!

        How ’bout we put a gun to his head & pull the trigger?
        Then I need cover for murder.
        But how ’bout if we take out the bullets?
        He could figure out I’m bluffing.
        So how ’bout you show him the gun’s loaded–
        –we’re back to murder–
        –but not fully loaded; 2 bullets, maybe one.
        So like Russian roulette–
        –but there’s this big introduced risk thing…
        How ’bout if you’re “directed” the bullets are dummies?
        I might try and figure that one out for myself.
        So how ’bout if you’re “ordered” not to?
        …like a command?
        Then it’s on YOU guys.

  10. Jkat says:

    what’s sickening is the obdurate mendacious bastard .. [Yoo] STILL has a job teaching law ..

    if he can’t be disbarred can we at least charge him with criminal impersonation of a lawyer…

  11. Boston1775 says:

    In the 7/13/02 letter to Rizzo from Yoo:

    With respect to severe mental pain or suffering, prolonged mental harm must be established.
    So, it’s torture if one causes severe mental pain or suffering
    And you determine if it was severe by assessing if the victim exhibited prolonged mental harm.

    Mental harm is fine.
    (And they will dissociate with mental or physical harm – thus they are susceptible to mind control.)

    Torture, as defined by Yoo, must incur prolonged mental harm.
    The sick part that follows is necessity to show due diligence.

    From the letter:

    Due diligence to meet this standard might include such actions as surveying professional literature, consulting with experts, or evidence gained from past experience.


    In looking at Jeff Kaye’s work, good faith meant that a psychologist would be present to examine the victim before their encounters with the CIA/outsourced professional (of a two day course apparently). If the psychologist determined that the victim was of sound mind, the interrogation could take place “in good faith” because they had shown their good faith by getting that psychological exam.

    Here, we see a three new ways to show good faith:
    1. Surveying professional literature – gee, no need for that psychological exam. Just read through the psychology book?

    2. Consulting with experts – consults can be by phone, email, letter or in person. In a medical setting, a consult about a patient with another professional is completely different from a direct patient visit.

    3. (And this is special) Or evidence gained from past experience. Just imagining how they would defend themselves given their past experience in torturing someone is … I don’t know what to say.

    I see no reason for a psychologist to be present in these three situations. Just information about or from them OR just call on your vast experience.

    Plus, couple this with the “professional assessment” of prolonged mental harm – so if the guy is still recovering from having his head slammed, slapped, dripped on – and he’s called a resilient guy – then in their professional opinion, “He’ll get over it. Bring him in for more.”

    Just how can one determine ahead of time how prolonged the harm might be?

  12. emptywheel says:

    For those who didn’t see this update:

    One more detail of interest. On June 22, 2004, the same day Goldsmith, Comey, and Philbin withdrew the Bybee Memo, John Rizzo sent this earlier approval to Philbin. That seems to suggest that Philbin did not know about it and may even suggest that it wasn’t in OLC’s records (though Philbin, by that point, worked under Comey at DAG.

  13. Gitcheegumee says:

    How does Michael Chertoff fit?

    He prosecuted the Moussoaui case,cowrote the Patriot Act,and was advising CIA on how far they could go on torture techniques.

    Then he went to DHS,after DOJ.

    He’s now with Covington Burley ,since March,2009.

    That’s where Eric Holder spent the last eight years as an attorney(2001-2009) when Obama appointed him AG.

    Check out the C&B /CIA links sometime.

    Covington Burleigh’s stellar client was GW Bush,btw.

    • LabDancer says:

      Maybe I’m missing the point you’re trying to make, but what I get from this is a pretty useful simile for illustrating the difference between conspiracy as a legal concept and conspiracy theory-ism as an approach to explaining the world:

      My own travels in the profession have seen me in four situations [among more than double that] where the number of lawyers numbered into the hundreds or into the thousands — each of whom I would expect to take the same position as me: that it would be misleading to false to draw any conclusions as to shared ethics, politics or interests.

      [The same would extend to dozens & dozens of those of my “colleagues” who subsequently went into publicly-elected office or on to serve as judges or both. Though thankfully most of the time recusal rides again to the resecue, still I’ve had some huge battles & disagreements with such former “colleagues”.]

  14. Gitcheegumee says:

    – Homeland Nominee Chertoff on Torture: Many Questions Fri Jan 28, 2005
    From the NYT:

    Michael Chertoff, who has been picked by President Bush to be the homeland security secretary, advised the Central Intelligence Agency on the legality of coercive interrogation methods on terror suspects under the federal anti-torture statute, current and former administration officials said this week.

    Depending on the circumstances, he told the intelligence agency, some coercive methods could be legal, but he advised against others, the officials said.Mr. Chertoff’s previously undisclosed involvement in evaluating how far interrogators could go took place in 2002 and 2003 when he headed the Justice Department’s criminal division. The advice came in the form of responses to agency inquiries asking whether C.I.A. employees risked being charged with crimes if particular interrogation techniques were used on specific detainees.

    This is important on a number of levels. While Homeland Security has no charge regarding foreign terrorist activity – can Homeland Security “render” terrorism suspects to the CIA? This is important because Alberto Gonzales has stated that the CIA is not bound by the prohibitions of the UN Convention on Torture. Can Homeland Security “render” to the CIA for “interrogation”? Many questions must be asked of and answered by Chertoff.

    Here’s a particular question: is the following true:

    In responding, Mr. Chertoff’s division said that whether the techniques were impermissible depended on the standards outlined in an August 2002 Bybee memorandum from the Office of Legal Counsel that has since been disclosed and which defined torture narrowly. ~~~~~~~~~~~~~~~~daily kos

  15. Gitcheegumee says:

    Private practice
    From 2001 until he became Attorney General, Holder worked as an attorney at Covington & Burling in Washington, D.C.,[8] representing clients such as Merck and the National Football League.[3]

    In 2004, Holder helped negotiate an agreement with the Justice Department for Chiquita Brands International in a case that involved Chiquita’s payment of “protection money” to the United Self-Defense Forces of Colombia, a group on the U.S. government’s list of terrorist organizations.[22][23] In the agreement, Chiquita’s officials pleaded guilty and paid a fine of $25 million. Holder represented Chiquita in the civil action that grew out of this criminal case.[23]

    In March 2004 Holder and Covington & Burling were hired by Illinois Governor Rod Blagojevich to act as a special investigator to the Illinois Gaming Board. The Gaming Board had voted 4-1 earlier that month to allow a casino to be built in Rosemont, Illinois. That vote defied the recommendation of the board’s staff, which had raised concerns about alleged organized-crime links to the Rosemont casino’s developer.

    Attorney General
    In late 2007, Holder joined then-United States Senator Barack Obama’s presidential campaign as a senior legal advisor.

    Holder favors closing the Guantanamo Bay detention camp,[28] although he has said that the detainees are not technically entitled to Geneva Convention protections.[29]

  16. tjallen says:

    The psychologists told us waterboarding doesn’t really harm them.

    Would that be enough for the interrogators to establish good faith?

    Jensen, as an expert on torture, told himself, it doesn’t really harm them, so he could waterboard in good faith. Then he extends the same get-out-of-jail-free card to the rest, by saying authoritatively, It doesn’t really harm them. Now they can say, well, Jensen’s the scientific expert, and he says it doesn’t really harm them, so it’s okay. I’m acting on the best available scientific advice.

  17. alinaustex says:

    I am not n a lawyer do not even pretend to be a lawyer on the internet tubes but if it can be shown that the memo that they keep on siting

    I believe this is all grist for the Durham ‘mill’ – I am certainly a layman -not a lawyer -but it seems to me that its equally plausible that Durham is keeping is own counsel literally until more of the chain of command can be implicated -both civilan & military .
    Didn’t some higher court recently rule that contractor’s that commit crimes overseas can still be held to account by our domestic laws? Wouldn’t this apply to Jensen -and if we turn him maybe we can get to Addington and the VEEP ?

    • bmaz says:

      Well, other than, of course, that all that is way outside of Durhams jurisdictional mandate and authority, and that a finding of civil liability has nothing whatsoever to do with a limited criminal investigation and that Holder and obama have been absolutely consistent that they will under no circumstances go up the food chain as you suggest….I guess all that is just great.

  18. alinaustex says:

    bmaz @32 ,
    I have at your suggestion ‘asked around ‘ and its a real good chance that Durham’s mandate will be expanded to include who ordered the torture – because folks like fatster,perris ,and other employees past and present of the “OGA ” do not want just the lower ranks to be charged with war crimes . In fact if you listen to ‘open sources” ie Robert Baer, it is becoming abundantly obvious that many of the rank & file do want their civilian chain of command ( read that Addington , Cheney ) duly punished –
    Furthermore if you listen carefully to Col Wilkerson , Richard Armitage , and “Matthew Alexander “- you will also also hear that its not just going to be Lynde England get busted this time around -The former Sec of Defense will now also be at risk as will Gen Geofrey Miller.
    IMHO – this ‘narrow mandate’ deal can just as easily be argued the other way – that its political cover until the full facts can be brought forward so that the real perpatrators can be but before the court .
    And regarding civil liabilty -its already been demonstrated that some civil liabilty depositions have made their way to the criminal investigators -or so its been said ‘when I asked around ‘
    To paraphrase Churchill – ‘this is not the beginning of the end – but the end of the beginning “
    So bmaz I still have my high hopes -and I have just cleaned my protective goggles – so go ahead and fire away !

    • bmaz says:

      I will believe it when I see it; there have been tons of people, take Scott Horton for instance, who profess to have sources a hell of a lot better than anything you have delineated for us here, that have been pitching the same happy happy line for years. But it never happens. Never. Like I said before, I have had this bet with plenty of people along the way before you wandered in, haven’t lost on e yet. You are so sure of yourself, how much you willing to bet? Want to put some actual money on this wild claim, or you just blowing smoke? And tell me, since you are uniquely informed and omniscient on this, when will this joy from the great and wondrous Bull Durham happen? Tell us more details. Oh, and by the way, I have listened to all those people you mentioned, and not heard one microscopic lick of what you claim out of them. they have said that it was not just line level people responsible, however you are being disingenuous to imply that they have said there will be charges; they have not said that in the least.

  19. alinaustex says:

    Bmaz @34
    How long should our bet be bmaz ? If it is until all investigations are done -and only the ‘grunts ‘ get prosecuted ,and all the major players walk ? If that’s the bet then yeah – I’ll back up my alleged ‘disingenues happy talk ” with a hard earned Franklin ( $ 100 ) – At the end of the day – when the dust settles if no prinicpals have been tried and convicted then you win . But if some former cabinet level gwb43 cretin is convicted I win . One more caveat – the conviction can also include international court dockets ,and could be pronounced in abstensia ..
    ( when I win you can either send me a certified check are come down to central Texas and we will use that hundred for two plates of good bbq-and minnow money when we go fishing for white bass on the Highland lakes )

    • bmaz says:

      Cabinet level/Principals is fine, as is a C note (BBQ as you say even better) but a conviction out of some unspecified foreign court that cannot and does not get person jurisdiction over the defendants does not work for me. Quite frankly, it is Durham you talk about, it ought to be restricted to him but I would be willing to give you the entire federal justice system, heck the whole American justice system as to cabinet/principal level folks. Bet?

  20. alinaustex says:

    Bet – I’ll have the mixed plate /with turkey sausage and sweet tea at Ingrams in Marble Falls -then will go catch a limit of white bass maybe even a striper or two at Max Starke Dam .
    I’ll even buy you a temporary out of state fishing license when I win the 100 dollars-
    (Would have been taking up this bet sooner -but been working ..)

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