Was John Yoo Free-Lancing When He Approved the “Legal Principles”?

Earlier today, I showed that there is a CIA document on the "Legal Principles" on torture that included legal justifications that had not been in any of the August 1, 2002 OLC memos authorizing torture. I showed that the document changed over time, but that when CIA asked Jack Goldsmith to "re-affirm" the Legal Principles in March 2004, he stated that he did not consider the document to be a product of OLC.

I have further inquired into the circumstances surrounding the creation of the bullet points in the spring of 2003. These inquiries have reconfirmed what I have conveyed to you before, namely, that the bullet points did not and do not represent an opinion or a statement of the views of this Office.

It seems–reading Jack Goldsmith and John Ashcroft’s objections to the CIA IG Report–that John Yoo was free-lancing when he worked with CIA on them.

In the DOJ dissent to the IG Report, Goldsmith explained that OLC disagreed with CIA’s representation of OLC’s role in drafting the Legal Principles document.

The disagreement revolves around the status of a document containing a set of bullet points outlining legal principles and entitled "Legal Principles Applicable to CIA Detention and Interrogation of Captured al-Qa’ida Personnel." The bullet points were drafted by OLC in consultation with OLC attorneys in the Spring of 2003. There is no dispute that OLC attorneys reviewed and provided comments on several drafts of the bullet points. In OGC’s view, OGC secured formal OLC concurrence in the bullet points and thus believed that the bullet points reflected a formal statement of OLC’s views of the law. OLC’s view, however, is that the bullet points–which, unlike OLC opinions, are not signed or dated–were not and are not an opinion from OLC or formal statement of views.

Goldsmith’s memo makes it clear, twice, that the work on the bullet points was the work of one OLC lawyer–John Yoo–and not the work of the department. First, it makes clear that OLC informed CIA that it did not stand by the legal reasoning in the bullets shortly after Yoo left (and, though Goldsmith doesn’t say it, the day after Philbin got the bullets on June 16).

OLC also believes that the status of the bullet points was made clear at a meeting on June 17, 2003 soon after the Deputy Assistant Attorney General with whom OGC had consulted on the bullet points had departed from the Department of Justice.

And, in one of its requested corrections to the IG Report, Goldsmith specifies that the OLC review of the document was just the review OLC lawyers, not OLC itself.

Strike the sentence that reads, "According to OGC, this analysis was fully coordinated with and drafted in substantial part by OLC." Replace it with the following: "This analysis was drafted by OGC in consultation with attorneys from OLC."

What appears to have happened is that Yoo worked on the document with CIA without telling others at OLC–not even Pat Philbin, who would take on some of the national security issues there. And as soon as Philbin got his copy on June 16, 2003, he went to the CIA and told them that the document had not been vetted by OLC as a whole.

And that’s the process, you see, that they tried to use to claim that the torture program did not violate CAT.

Update: See smintheus on John Yoo just making shit up about CAT including an exemption for exigencies.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

40 replies
  1. orionATL says:

    well, now

    wouldn’t this be a very big hole for the holder doj to drive its little truck of a torture “pre-investigation” through?

  2. Peterr says:

    See, this is what happens when you don’t sign your name and show your work.

    “Bullet points? What bullet points? Anybody here know anything about any bullet points?”

    Marcy, would it be possible that rather than freelancing, Yoo drafted this but his bosses were not fully read in on the whole deal? Thus, Yoo could not sign off on it officially, but OGC accepted it as official anyway (”wink, wink; nudge nudge; say no more, say no more . . .”) and everyone went home happy.

    Until, that is, someone went back to Goldsmith in March 2004 and said “Hey, you guys forgot to sign this.”

    • emptywheel says:

      Yes, that’s a very good possibility. But note that as soon as Philbin saw this–right after Yoo left–he knew it was trouble. Which means he briefed no one on it.

      But then, he didn’t brief Bybee on his work on the warrantless wiretap program.

      ALso, note that Rizzo sent to Philbin that early (7/13/2002) “authorization” for torture that Yoo wrote. Which suggests Philbin (who was no longer in OLC but had been) hadn’t seen that yet either.

    • Rayne says:

      Yeah, I’m beginning to think that Yoo was part of a compartment and he knew it, and the people outside the compartment couldn’t understand this because they were excluded by compartment firewalling.

      Which suggest this was established by the executive or the fourth branch, at a level above cabinet and highest appointees.

      • liberalrob says:

        Yoo does seem to be muy simpatico with Cheney’s worldview, doesn’t he? Birds of a feather.

        • Rayne says:

          No surprise; if you read up on Yoo’s background, you’ll see he was well-connected and wired into the neo-conservative machine, likely hand-picked for this gig.

  3. liberalrob says:

    What a bunch of CYA BS! Gee, where was all this distancing from Yoo when it might have mattered?

  4. Peterr says:

    From the FDL archives on John Yoo’s history of misrepresentations:

    Regarding his March 14, 2003 memo:

    Here’s an example out of the Yoo memo:

    “It is well settled that the President may seize and detain enemy combatants, at least for the duration of the conflict, and the laws of war make clear that prisoners may be interrogated for information concerning the enemy, its strength and its plans” footnote 9″

    This is what footnote 9 says:

    Although Article 17 of the Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3517, places restrictions on interrogations of enemy combatants, members of al Qaeda and the Taliban militia are not legally entitiled to the status of prisoners of war under the Convention. See generally memeorandum for Alberto R.Gonzales, Counsel to the President and William J. Hayes, III, General Counsel, Department of Defense, from Jay S. Baybee Assistant Attorney General, Office of Legal Counsel, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan 22, 2002) (”Treaties and Laws Memorandum”)

    This is what the entirety of Article 17 of the Geneva Conventions says:

    Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.

    If he willfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.

    Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war, with an identity card showing the owner’s surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth. The identity card may, furthermore, bear the signature or the fingerprints, or both, of the owner, and may bear, as well, any other information the Party to the conflict may wish to add concerning persons belonging to its armed forces. As far as possible the card shall measure 6.5 x 10 cm. and shall be issued in duplicate. The identity card shall be shown by the prisoner of war upon demand, but may in no case be taken away from him.

    No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. Prisoners of war who, owing to their physical or mental condition, are unable to state their identity, shall be handed over to the medical service. The identity of such prisoners shall be established by all possible means, subject to the provisions of the preceding paragraph.

    The questioning of prisoners of war shall be carried out in a language which they understand.

    So, the legal authority Yoo is citing to support his stunning assertion “that the laws of war make clear that prisoners may be interrogated for information concerning the enemy, its strength and its plans” not only DOESN’T SAY YOU ARE ALLOWED TO ASK FOR THAT INFORMATION, IT SAYS THE EXACT OPPOSITE. Sorry, didn’t mean to shout. What Article 17 says is that you can only ask for name, rank/regiment, birthdate and serial number, period.

    Oh yeah, and it also says specifically that you can’t torture.

    Then there’s this in a followup post, and this too.

    I’ll ask again: Dean Edley, how many academic mortal sins does it take to get someone’s tenure yanked?

      • liberalrob says:

        The argument I can see Yoo raising is, just what constitutes “torture?” Clearly, what Yoo considers torture (”pain approximating that of organ failure”) doesn’t match what you or I would consider torture, but are the Geneva Conventions really clear on what is torture and what is not? We also have to deal with whether detained “enemy combatants” are “prisoners of war,” which has also been obfuscated and misinterpreted by the Bush Administration. John Yoo has done a tremendous amount of damage to our conception of what the Geneva Conventions really mean.

        I have no doubts that Yoo and Gonzales (and Ashcroft too, probably) deserve to be hauled into court and asked to justify their actions. We’re still a ways away from getting that.

        On “name, rank and serial number,” that’s all Article 17 says POW’s are bound to answer; it doesn’t say they can’t be asked other questions, only that prisoners can’t be forced to answer them (and that they risk losing protections if they do answer). But since the Yoo and the Bush Administration created this shadow-status of not-civilian-but-not-POW-either, they can do just about anything they want, right?

        You have to hand it to them. They figured out how to create a Twilight Zone at Gitmo, where no law applied but the one they wanted to apply, where detainees had no rights but the ones they saw fit to give them. Not on U.S. soil, not under the Geneva Conventions, not under international law…it was a “black site” right there out in the open, one everyone knew about and yet also didn’t.

        And it goes hand-in-hand with Cheney declaring that the Vice President is not subject to the rules of the Executive Branch because he has a legislative function, and yet also not subject to the rules of the Legislative Branch because he is part of the Executive. Brilliant, no? Who else ever thought of trying to make that argument, let alone actually be able to make it stick for 8 years? See, you really can turn a democracy into a dictatorship! Just takes a little ingenuity and creative interpretation of the law.

    • DWBartoo says:

      Thank you, Peterr;

      I would say you have pretty well put Yoo into a box of his own making.

      Carelessly assembled, unable to stand alone, and definitely twisted as that box may be, there is no conceivable manner in which a society that truly values the rule of law, rather than merely paying it lip service, could fail to hold Yoo responsible for his (despicable) assault upon reason, the Geneva Conventions and the Constitution of the United States of America, and having found that Yoo did, indeed, with malice and deliberate intent, intend to subvert justice and protect his superiors from accountability, must himself, now, be brought to account.

      Your links remind me, Peterr, that I have not seen LHP on these threads for some considerable time. I am hoping that things are well with her.

      DW

  5. liberalrob says:

    It’s also just as possible that Goldsmith was fully briefed by Yoo, and is now leaving him to twist in the wind a la Oliver North, isn’t it? Goldsmith might hope that Yoo will fall on his sword, or take the fall, while Goldsmith does his best Claude Rains impression (”shocked, shocked to learn Yoo approved of this”).

      • liberalrob says:

        OK, Bybee then. Even better. Bybee could have been fully briefed by Yoo, probably would even have approved, didn’t sign it, OGC says “good enough for us” and off they go. Bybee splits the scene, the Yoo hits the fan in 2004 and Goldsmith says wait a minute, wtf is this? But as far as OGC is concerned, they had a “gentleman’s agreement” with Bybee, so that’s what they put in their report. They had OLC signoff from the head of OLC, Bybee.

        Both sides could be right, then. OGC could be right that OLC signed off, Goldsmith could be right that as far as he knows they didn’t, and what proof there is is sitting on a bench in Arizona(?) (Bybee) or at UC Berkeley (Yoo) and not likely to say either way. Wonderful.

        More documents! More, more, more! It all has to come out.

        • emptywheel says:

          1) Bybee was not fully briefed by Yoo, at least not on warrantless wiretapping.
          2) Bybee didn’t overlap with Goldsmith either.

          Next?

          I know you want to invent this. But until there’s evidence for it, why not try to figure out what there is evidence for?

          • drational says:

            I am wondering who the OLC “Lawyers” plural are that OGC conferred with on the bullets. You show us not Philbin, but why not Bybee exactly? He was gone before Yoo, so I assume Yoo was the last holdout at OLC of folks who could have seen/reviewed the bullets? Am I wrong? cuz it certainly is a plural in several places in the Goldsmith letter, not just Yoo alone. Who was the Robin to Yoo’s Batman?

            • emptywheel says:

              BC if it was Bybee then it would have counted as a real OLC opinion.

              It could have been someone like Delahunty. Or Goldsmith could have said “attorneys” just to be polite or hide the fact that Yoo had gone rogue.

              • drational says:

                Ahh. I was thinking it could have been a “curbside consult”, like residents sometimes do to me- call me up and tell me about a patient to get an unofficial attending physician blessing. The patient goes home with an unbillable consult since I did not actually see the patient and sign a note; but the Resident gets to write “discussed with Dr. Ational” and pretend it was the real deal. I still have some legal liability for the participation, but this is common practice in my world. It sounds somewhat similar to how things were run with Yoo at OLC and Bybee as his nominal “attending”.

            • readerOfTeaLeaves says:

              Both Philbin and Goldsmith rushed to the hospital bed of John Ashcroft in March 2005, following urgent phone calls (probably from James Comey). FBI Director Mueller also rushed to the hospital. All four were evidently there to assist Ashcroft, when Andy Card and Gonzo came into his ICU room.

              Also, Bybee’s Wikipedia page shows him as “… confirmed by the United States Senate on March 13, 2003. He received his commission on March 21, 2003, and Justice Sandra Day O’Connor administered the oath of office at the Supreme Court on March 28, 2003…”

              Scott Horton at Harper’s has written some terrific stuff about the fact that Michael Chertoff (aka, “Skeletor” and the one who took over Homeland Security after Ridge tossed in the towel on these clowns) was at DoJ, with direct oversight of OLC. And Alice Fisher reported to Chertoff, until he left; at that point, she was promoted to oversee OLC.

              And who was Alice Fisher?
              For more, google “Alice Fisher” + “Gov Don Siegelman”, or read Horton’s archives for more eyebrow raising politicization of DoJ.

          • liberalrob says:

            Absence of evidence is not evidence of absence, as the saying goes.

            I assume the worst until proven otherwise. So far these people have never let me down.

  6. Hmmm says:

    Well, this is very interesting. Now Yoo appears extraordinarily exposed in a way not previously recognized. But at the same time it appears the bullet points were relied upon — yes, very very unwisely — in approximately the same manner as the later formal OLC opinions were, and that flavor of reliance is exactly what PBO and Holder have repeatedly said will be the Stay Out Of Jail card for the interro-torturers and the command chain above them. I can imagine bullet points getting socialized into the organization in a way that the letter of an OLC opinion couldn’t be. So… what, if anything, does this change, accountability-wise? Is Yoo now any more likely to be charged than he used to be? Will Holder view the unofficial character of the bullet points as different in kind from the actual OLC memos, umbrella-wise? And I feel I should already know this one, but how many cases of going beyond the four corners of the bullet points (now there’s a mixed metaphor for ya) do we know about, or suspect, during the period between the issuance of the bullet points and the first formal OLC torture memo?

  7. drational says:

    So who was the other attorney(s) consulted to draft the bullets, if not Philbin?

    Judge Bybee?

    “This analysis was drafted by OGC in consultation with attorneys from OLC.”

  8. drational says:

    Reading the Goldsmith response to the IG report, I am struck by the flight of the AG away from “expanded use of the waterboard”. He was ok with quantity– more numerous exposures that contained the same safegaurds. But the wording suggests he is letting the CIA hang alone on quality– methods of usage (with bad outcome perhaps on the deleted videotape) that I think must still be redacted in the IG report.

  9. orionATL says:

    drational @20

    or cheney was bat(shit crazy)man and yoo was robin.

    doj gets absolved of some of the responsibility for authorizing a blatantly illegal activity (torture, by whomever) if the (paper)trail leads to the vp’s office.

  10. TheraP says:

    I haven’t read the whole thread, so hopefully this does not duplicate what’s been suggested. But could it be that Yoo and a psychologist came up with the bullets? Here’s why, quoting from a WaPo article of April 18, 2009:

    When the CIA began what it called an “increased pressure phase” with captured terrorism suspect Abu Zubaida in the summer of 2002, its first step was to limit the detainee’s human contact to just two people. One was the CIA interrogator, the other a psychologist.

    During the extraordinary weeks that followed, it was the psychologist who apparently played the more critical role. According to newly released Justice Department documents, the psychologist provided ideas, practical advice and even legal justification for interrogation methods that would break Abu Zubaida, physically and mentally. Extreme sleep deprivation, waterboarding, the use of insects to provoke fear — all were deemed acceptable, in part because the psychologist said so.

    Thus my question here: To whom was the psychologist providing that “legal” advice reasoning? Naturally, we psychologists cannot act in such a role. But then again we should not torture either! And if not Yoo, well then my hypothesis still holds – was the psychologist part of this compartment? He must have been!

  11. Mary says:

    Re: the Smintheus update, not only was the exigency exception made up, it has been pretty much abandoned now by people who have an inkling they may have to testify at some point. To use this link again (I’ve overused it) when Hayden was testifying in Feb 2008,
    http://www.reuters.com/article…..SN05178151
    he profers the line we keep getting now that torture was good bc it helped us learn about al-Qaeda (not because there were any ticking time bomb exigencies)

    He said waterboarding has not been used in five years, but it was used then because of concerns of imminent catastrophic attacks on the United States and because authorities had limited knowledge of al Qaeda.

    emph added.

    I remember even before then hearing him try a different approach, that “exigencies” could mean that maybe there might be some kind of a plot to do something in a few years, but it would be an exigency to torture someone bc the plot might be for a really bad thing, even if it wasn’t imminent – or some kind of mishmash something like that.

    But as they get closer and closer to a court, it all boils down to this – we tortured bc we didn’t know much about al-Qaeda and we needed to find stuff out.

    IOW, the justification for torture had nothing to do with culpability of the person being tortured. It didn’t matter if they were a member of al-Qaeda or not, or if they had participated in 9/11 planning or not, or if they knew about future plots or not. The justification for torture was our generic ignorance, and anything that helped address that generic ignorance was sufficient to authorize torture. If the information they provided was wrong (e.g., Zubaydah and al-libi being high level members of al-Qaeda) that was ok, it was still ok to torture for it, bc it was information, even if it was incorrect information. If you ended up torturing people who were not members of al-Qaeda, old men in walkers, young children sold to you – that was ok too, bc they were from an area where they might have heard a bit about al-Qaeda and could help fill in our blanks.

    Ultimately, Hayden lays it out.

    Personal and institutional ignorance was the justification he relied on for torture.

  12. MrWhy says:

    I wonder who is happy that Dawn Johnsen has not been confirmed as head of OLC yet? Amazing how she’s been kept silent by her current status.

    • Nell says:

      In the recent NYT article* on Obama’s admin having only 43% of political (confirmation-requiring) appointments filled, I was struck by the graphic that makes clear that Justice is the most severely affected, and that in that case, the failure is due primarily to lack of nominations. Caution, fear, purposeful delay (until after health care battle? Sotomayor confirmation? torture document dump and Holder “review”? actual confirmation battle for Dawn Johnsen?)

      *The article is really trash from a reporting point of view apart from the graphic, since it provides no objective basis on which to compare Obama admin with predecessors at same stage, leaving the admin spokesperson’s assertion that they’re doing better than previous admins as a mere “claim”.

      • Mary says:

        Most of the Justice people that are on the surface politically in Obama’s court cause him one of two sets of problems. They are either jumping in the pro-detention forever, pro-torture cover ups bed openly – which makes them that much more divisive with the base; or they would fight the detention forever and torture cover ups efforts – which makes them divisive to Obama’s inner circle and his “pragmatic” efforts to utilize his office for torture coverups and forever detentions.

        So for who he really is as opposed to what he ostensibly ran as being, he’s way better off without someone like a Dawn Johnsen approved and acting. He knows that and he’s at peace with it until he makes some things final and irrevocable to the point where he can “risk” putting in a base pleaser way after they can do anything constructive.

        • MartyDidier says:

          Interesting insight Mary.

          Normally I grab a copy to review later and this one is at the top of my list. Although my view has been different coming from a top down view, I’m encouraged with watching this site work towards exposure of how we got into this mess. Like many of you, I’m concerned about our Republican Democracy however please accept that I’ve spent more than 26 years in a family who are directly part of this mess too. Although they aren’t a Government sponsored group, they are directly involved in activites which got us to where we are today. I won’t leave a link as I have many times in the past but they were involved flying planes for the CIA with Rendition Flights and drug smuggling. What we’re told in the family of the family’s involvement was shocking and often it was mentioned who were involved (Cheney, Bush and others).

          At this time, your efforts may show Obama’s direction, but please understand from what I know that Obama is a Criminal TEAM member. His role may be of someone who has a silver tongue trying to calm everyone, but he is directly involved. Obama personally as an attorney working at a Chicago Law Firm in the 90’s assisted the family with setting up their business in Florida. There’s proof and more should surface eventually.

          But the main question is why? Why all this insanity? The answer and I’m sorry to have to tell you this, is we are involved in a WHITE HOUSE COUP. It’s been planned for decades and launched when another plan took place. That plan was 911! I learned about The WH Coup and 911 along with other plans and details all through the 90’s from the family while married.

          It may help to keep an open mind while trying to unravel this mess. I realize it may be interesting to decipher what is happening, but they have an ultimate plan. Also accept that Governments are controlled by power groups and from what I know from the family the power group in question are the Banks and financial groups. They have a major role in steering this mess. What ever Obama and his criminals are doing are a direct result of needing to keep their direction on track. The news has been good to surface what the opposition is up to and it looks like to me that the Coup isn’t going to be successful. More another time….

          Marty Didier
          Northbrook, IL

  13. Nell says:

    Update: See smintheus on John Yoo just making shit up about CAT including an exemption for exigencies.

    Or my comments making the same point on your original post. (smintheus’ post was a day ahead of both of us, granted.)

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