“We Will Provide, at a Later Date, an Opinion That Explains the Basis for this Conclusion”

There’s an interesting line in the August 6, 2004 letter from Daniel Levin to John Rizzo approving the use of waterboarding with (we know from the later 2005 memos and from the short name included here) Hassan Ghul. Levin promises to send an opinion that explains the basis for his conclusion that waterboarding would be legal (albeit a close call).

We will provide, at a later date, an opinion that explains the basis for this conclusion.

That promise doesn’t appear on the July 7, 2004 letter from Jack Goldsmith approving the use of all the techniques but waterboarding (I’m not certain the letter pertains to Ghul). It doesn’t appear on the July 22, 2004 letter from John Ashcroft to John McLaughlin (then Acting DCI), approving everything but waterboarding. It doesn’t appear on the September 20, 2004 letter approving a bunch of other techniques, including water dousing.

It appears to show up only on the letter approving waterboarding. Waterboarding, and only waterboarding.

That’s mighty interesting because, in 2005, when OLC was just getting around to writing that promised opinion, CIA provided last minute information to make sure that waterboarding would be included in the March 10 Combined memo. They had to do so because CIA’s December 30 memo on combined techniques did not include waterboarding. So, with the last minute information, the Combined Memo came to argue that it was okay to waterboard someone who had been deprived of sleep. And, as Jim Comey revealed in his emails, that Combined memo was really intended to authorize treatment retroactively.

Now this doesn’t prove that the CIA waterboarded Ghul. (They claim to have decided not to because he was too obese for the technique.) Perhaps it wasn’t Ghul they waterboarded; perhaps it was someone they tortured later. We can’t ask Ghul because he remains disappeared, last seen in a Pakistani jail.

All of this is inconclusive. But Levin’s promise of a follow-up memo, combined with the urgency surrounding the memo in April 2005, suggests they really did waterboard someone. 

If so, they have been lying about it to Congress and the American people ever since.

Update: I’m still working through these–and I see that the August 26, 2004 letter from Levin to Rizzo has the same line, as well as a September 6, 2004 one that appears to relate to a different detainee. That letter discusses four new techniques that had not been used before, which showed up in the May 10, 2005 Techniques memo.

55 replies
  1. Mary says:

    EW – the link in this section of the post “They had to do so because Daniel Levin’s December 30 memo on combined techniques did not include waterboarding” I don’t think is to a memo by Levin, but instead is to the background info the CIA sent over.

    That August 24, 2004 letter by Levin is a really depressing and disappointing thing to see. Even with the caveats. When you have to put on what he did in the last line – it’s a pretty sad thing. A final approval to torture – can’t really stand as anything else. Not a piece of advice, not a piece of policy, just a piece of paper for the torturers’ scrapbooks.

  2. drational says:

    Concur there would be a severe problem with waterboarding someone between June 2004 when the memo was pulled and May 2005.

    But might this push also be to reaffirm legality for the waterboarding of AZ, al-Nashiri and KSM. Because we have pretty good indications that Al Nashiri at least was subjected to combined sleep-dep and waterboarding, something uncovered in Yoo 2002 memos or anything til Bradbury. This may be the “quality” aspect of waterboarding usage Ashcroft was running away from after the IG report draft was reviewed. It was the combined memo that Comey was so concerned about in 2005, and I wonder whether this could be that the CIA had a liability tail they wanted retroactively covered for the acts we already know about?

  3. Mary says:

    I think this is the document you want to link in that Dec 30 memo reference


    Where Levin does battle with “specific intent” among other things. Or maybe there’s another one too. My head is spinning right now.

  4. JasonLeopold says:

    I feel compelled to stop in here to say that your coverage today has been nothing short of spectacular. The volume of work that you have produced today alone puts every single reporter to shame on this story. I just needed to say that because it takes quite a talented person to be able to do what you are doing. I am still trying to get through one story that I am writing.

    • TheraP says:

      I was thinking along similar line, Jason. This has been a stunning day! It has repaid my contributions to the EW fund in spades!

      Folks reading here, please do your part to keep EW going! We may not be able to keep up with her, but we sure as heck don’t want to hold her back!

    • Leen says:

      Genius woman and team..sure makes my head spin.

      Watch Chuck Todd squirm when Jeremy Scahill calls him out for calling the investigation into torture “cable catnip”
      the same applies to the investigative work Jeremy Scahill has been doing “remarkable”

      Jeremy is not fucking around…this man is serious


  5. Leen says:

    I know some folks do not agree but Chris Matthews has been pounding on Cheney for a very long time.

    Matthews is hammering away on Cheney

    Tonight Ron Reagan vs Tony Blankley

    Chris showed the same clip of Cheney talking about operating from the “dark side” in the “shadows”. Using “any means at our disposal”

    Chris Matthews to Blankley ” Let me tell you what I think. I think everything here comes from above. I think the fish rots from the head. I think leadership is key in American life. You used the word strategic. I’m for it. I completely agree with you. I don’t think operatives do things that they don’t expect to get rewarded for. Their expected to do bytheir bosses .”

    Then Matthews plays Cheney’s recent statement about the appointed prosecutor.

    Ron Reagan rips it up.
    Ron brought up that 9/11 happened on the Bush/Cheney watch even after repeated warnings

    How will CIA’s investigation affect Obama’s agenda

    the one thing that Matthews, Reagan, and Blankley all agreed on “Responsibility is at the top”


  6. MadDog says:

    And I want to know who was the detainee referenced in Bradbury’s August 23, 2007 Letter from OLC to CIA (2 page PDF), and just what specific enhanced interrogation technique the CIA wanted to use on him that required OLC “approval”, and just why they again needed OLC “approval” for more usage of a specific enhanced interrogation technique on November 6, 2007 (2 page PDF), and again on November 7, 2007 (2 page PDF).

    Was waterboarding back on the menu?

    And I find this mighty “curious” in the November 7, 2007 document (2 page PDF):

    …In addition, you have informed us of the important need for continuing the technique [redacted] remains resolute in resisting interrogation, and the CIA professionals believe him to continue to adhere to a well-developed, robust, can capable resistance strategy. The CIA continues to believe that [redacted] may possess information on [redacted long sentence]…

    (My Bold)

    Remember, and I can’t find it right now, but either in one of the latest documents dumped or in a recent press article or in recent testimony, there was a statement from a CIA or DOJ heavyweight (Hayden, Panetta, Mukasey, or even Holder?), that one of the few remaining justifications for again using some of the now banned enhanced interrogation/torture techniques was if the government thought the prisoner had information on the whereabouts of Osama Bin Laden.

    Keep that in mind as you re-read the above quote.

  7. Leen says:

    EW “If so, they have been lying about it to Congress and the American people ever since.”

    the American public has become complacent in response to the lies..par for the course during the last eight years

  8. Mary says:

    I dropped this link to an story from last year in another thread too, but wanted to tuck it in here as well EW

    Back when Hayden was trying to mislead Congress into believing that there had only been three instances of waterboarding:


    (a representation that it now appears that a covey of Principals knew to be false and/or misleading since apparently the IG report says they were briefed on how many times waterboarding did take place – and yet no Principal came forward to correct the false public record being made to Congress)

    anyway, back then he was also saying that no waterboarding had taken place in the last 5 years.

    So that would mean not since Feb of 2003.

    He said waterboarding has not been used in five years,

    He says that thing were different in late 2001 and early 2002 and with his five years remark implies that they were “not different” by early 2003 at the latest. Which makes it that much more “odd” that he didn’t mention that in August of 2004, they were trying to waterboard again. What made things “different back” in August of 2004? The need to get info to help win an election?

    • TheraP says:

      Mary, I’ve always thought that only during the time that bush was actually saying “We do not torture” (i.e. present tense verb!) were they actually not torturing. So, as long as there was a lull during the words, the words were “true”.

      This whole thing sickens me so much that I feel they’ve tortured me!

        • TheraP says:

          More “present tense” – supports my theory. I’ve listened closely over the years. And to my knowledge bush never said: “We did not torture”.

          Do not. Does not. They stopped it for those few breaths!

        • Mary says:

          Isn’t that one of the court cases right now – some of the detainees asking the courts to declare them to be people.

          I’m not being facetious.

            • Mary says:

              Eh, here’s why you shouldn’t believe what you don’t pay for –

              I guess we haven’t declared them to be non-people, just “non-persons”

              It’s different


              Attorneys for four prior Guantánamo Bay prisoners have filed a second petition with the U.S. Supreme Court, seeking a review of a lower court’s decision that foreign nationals held in the prison are not “persons” and have no Constitutional rights.

              Funny that in the questioning of Roberts and Alito over Korematsu, no one bothered much with Dred Scott. Obama and Holder should feel very proud of what they are allowing to happen on their watch.

              • Leen says:

                Moment of truth indeed
                “This is a moment of truth for the Obama administration,” commented CCR legal director Bill Quigley, in a media advisory. “Will it support a decision that says detainees have no right to be free of torture and that government officials who order torture should not be held accountable for their actions? To be true to the principles on which this administration was elected, the Justice Department should support a strong judicial affirmation of the prohibition against torture.”

                “The decision was sent back to the District of Colombia Circuit Court of Appeals for reconsideration. Upon review, the D.C. court essentially restated its ruling, maintaining there were no such protections for the men, who were never proved to have committed any crimes related to terrorism or otherwise, and that government officials who allegedly ordered and carried out their torture were immune to prosecution.”

                Holder, Obama, Whitehouse, Leahy “no one is above the law”


                Has anyone heard anything on the MSM about the whereabouts of KSM’s children? Where are they?

              • skdadl says:

                Michael Scheurer, when asked by Jerry Nadler about the rendition of a totally innocent person: “He’s not an American. Why should I care?”

      • Mary says:

        And with all the threads I couldn’t even find it again, but I have this feeling that, despite all the work being done, if the meme can’t change it’s all for nothing. If the face of torture victims begins and ends at KSM, then I think we’ve lost the court of last appeal.

        Here’s hoping though.

        EW – the only really bad thing about a day like today is so many good and toothy posts might not get the attention they should. You may want to think about re-posting several of them over the next few days (with or without updates) so they get the attention they deserve.

    • fatster says:

      Did they amend their definition of torture to make it non-torture (assuming they were concerned about lying or being accused of it, etc.)? Wish I knew, but cinnamonape’s comments @ 9 on the “NYT False Banality . . . “thread is very interesting.

  9. Leen says:

    this line in that Levin letter made my peasant head spin several times.

    “furthermore, this letter does not constitute the Department of Justice’s policy approval for use of this technique in this or any other case”

    sounded like the four points that he put forward were all about approval

  10. Mary says:

    And a little bit of OT

    The DC Ct of Appeals has given Kyle Sampson a waiver to allow him to continue practicing law


    over the objections of the DC committee on admissions.

    So as a partner of Hunton and Gruntin he gets to go onward and upward.

    Apparently the DC Ct of Appeals was impressed that former AG John Ashcroft – himself heavily involved in investigations relating to torture – was a part of the “star studded” crew who went to bat for Sampson.

  11. behindthefall says:

    IMO, EW’s output on any given day beats the NYT’s national section hollow. The way the posts have been pouring out today, I’ve been worrying about burnout since about 4:30. Is this the record for most emptywheel posts in a day? I would put it at the top of any 24 hours I can recall for importance and insight.

    And there’s that thermometer near the top of the page to kick up, and what better time to do it?

    I seriously don’t know how she does it. It’s been like watching a reactor going critical. (Most of us aren’t even radioactive …)

  12. skdadl says:

    Amazing work, EW. It’s all I can do to keep up with the reading, and even there I’ve got to go back and finish a bunch of comments threads. Just wanted to thank you and wave at everybody. *waves*

  13. WilliamOckham says:

    Md, I’m working on figuring that one out. There are several interesting bits on that one. Btw, good catch on the GST classification marking.

    • MadDog says:

      Ta WO! I look forward to what you come up with.

      And in case anyone is interested, Fredo speaks:

      A Candid Conversation With Former U.S. Attorney General Alberto Gonzales

      …TL: Let’s talk about some things you will be talking to your students about. I know you’ve said you want to write a book. So let’s talk about how you may address them. Let’s start with when you were White House counsel and the so-called “torture memo.” How would you explain that to the class?

      Gonzales:…we all thought it was very, very important as we engaged in this conflict that the policymakers and those implementing policy understood, “OK, what are the limits?” And that’s what that memo was intended to do was simply to interpret a statute, and obviously people disagree with certain aspects of it…

      …I was in the administration I encouraged lawyers to continually look at our legal position and to get comfortable if we were in fact on solid ground. And if people wanted to continue to revise, I think that was the appropriate role for lawyers.

      TL: And what about the “quaint notion” reference that you made about the Geneva Conventions.

      Gonzales: Oh, that’s an easy one. The “quaint” reference was in a confidential memo to the president, and what I said was, “Mr. President, I think it is fair to ask whether certain provisions of the Geneva Conventions — such as a requirement that you provide athletic uniforms, commissary privileges, scientific instruments, a monthly allowance — those are all required by the Geneva Conventions to prisoners of war…”

      …Let me make one final point, and that is I strongly support the primary objective of the Geneva Conventions, which is to ensure the humane treatment of people captured on the battlefield or civilians captured in times of war. Those are very, very important protections, and I certainly support them — as does President Bush, and he was clearly on record in that respect…

      There’s much more BS to this article, so take a read.

      • Peterr says:

        MadDog, how could you cut out the part where AGAG says he doesn’t like being confused with John Yoo as the author of the torture memo?

        TL: . . . Let’s start with when you were White House counsel and the so-called “torture memo.” How would you explain that to the class?

        Gonzales: One thing I would emphasize is that the memo was not authored by me. There’s been a misconception that I authored the memo. It was written by lawyers at the Department of Justice when I was in the White House. And again that was an effort by DOJ lawyers to explain what are the outer boundaries of a statute that is fairly vague.

        “It wasn’t me. Not. Me. It was those DOJ lawyers. Yeah, the DOJ did it, not me. It was their effort to do something, and I had nothing to do with it. Why, I was blocks away at the White House . . .”

        Poor guy.

  14. emptywheel says:

    This document is very fascinating. It shows three current approvals, one of which we know to be Ghul. THe other two recent HVDs in custody at the time were Mohammed Noor Khan and Ahmed Ghailani.

    Also note Levin listed a pending DOD opinion I don’t think we know about.

    • Peterr says:

      This document is very fascinating.

      When you say you find a document “very fascinating,” someone else is saying “Oh, sh*t.”

      While that reply could come from lots of different someone’s, in my head I hear those words coming from David Addington.

  15. rincewind says:

    Way way way back in the “Condi’s Okay Came After OLC Approval” post, WRT the July 13, 2002 Yoo-to-Rizzo letter with the redacted name — when Rizzo sent Pat Philbin a copy of that letter on June 22, 2004, the name ISN’T redacted. Most likely “Jennifer Koester” is an assistant?

    • Mary says:

      Very nice! And all the more interesting to see her name blocked out, since she’s OLC. Someone seems to want to be protective of her role in the torture architecture.

      She’s been a writing pal of Yoo’s (the bio MrWhy posted appears witht he links on a piece she co-wrote with Yoo).

      Why would her name have been redacted? That will be interesting to hear, if anyone ever does address it, but I trend towards the answer that has been pretty reliable for a long time – DOJ puts protecting friends and pals above anything else. Looks like she is now Jennifer Hardy and works at Kirkland (isn’t that where Philbin landed too?)

      • rincewind says:

        Re: redactions in general — what I’m befuddled by is their sloppiness (at the same time being amazed and grateful for EW’s ability to capitalize on their mistakes). How many people combed through these docs over the course of MONTHS, and this still slipped through?

  16. MadDog says:

    EW, I don’t know where you’ll find the time, but I’ve a hankering for an EW trashing for this stinkin’ piece of BS by NYT CIA-mouthpiece, Mark Mazzetti:

    Report Shows Tight C.I.A. Control on Interrogations

    …But the strong impression that emerges from the documents, many with long passages blacked out for secrecy, is by no means one of gung-ho operatives running wild. It is a portrait of overwhelming control exercised from C.I.A. headquarters and the Department of Justice — control Bush administration officials say was intended to ensure that the program was safe and legal…

    And there’s this:

    …Waterboarding might be an excruciating procedure with deep roots in the history of torture, but for the C.I.A.’s Office of Medical Services, recordkeeping for each session of near-drowning was critical. “In order to best inform future medical judgments and recommendations, it is important that every application of the waterboard be thoroughly documented,” said medical guidelines prepared for the interrogators in December 2004

    (My Bold)

    So only after all the waterboarding was done, the CIA’s OMS came up with future recommendations on how to do it right the next time? Well excuse fookin’ me!

    And then there’s the standard fare from the usual Bush/Cheney regime apologist:

    …But defenders of the program say the tight rules show the government’s attempt to keep the program within the law. “Elaborate care went into figuring out the precise gradations of coercion,” said David B. Rivkin Jr., a lawyer who served in the administrations of Ronald Reagan and George H. W. Bush. “Yes, it’s jarring. But it shows how both the lawyers and the nonlawyers tried to do the right thing…”

    • bmaz says:

      Okay, I will blast him for citing freaking Dave Rivkin, but in fairness, it does look like there was relatively speaking a lot of control bu CIA,DOJ and WH Principals. Let them claim that; they are the ones that should take the hit in the end anyway.

    • emptywheel says:

      I agree. It deserves some thrashing. Maybe tomorrow. I’m almost done with a first pass on these OLC things, except for the 2006 and later docs.

  17. Kassandra says:

    The cucharaches, they are coming out o’ the woodwork. Wait’ll THIS hits

    Long-gagged FBI whistleblower’s full under-oath testimony from Ohio election case, details Congressional blackmail, bribery, espionage, infiltration, more…


  18. MrWhy says:

    Jennifer Koester served as the Special Assistant to the General Counsel of the Department of Defense, where she worked on national security, international law, and constitutional law matters. From 2002-2003, she was an attorney advisor in the Office of Legal Counsel at the Department of Justice, working on issues in national security, separation of powers, as well as other constitutional law issues. Prior to her service at the Justice Department, she was an associate at Wiley, Rein & Fielding. She clerked for Judge Emilio M. Garza on the U.S. Court of Appeals for the Fifth Circuit.

  19. Jkat says:

    @ mad dog’s #34 ..

    “Elaborate care went into figuring out the precise gradations of coercion,” said David B. Rivkin Jr.,

    while not specifically related to waterboarding .. but generically applied to the EIT programs as a whole .. i’d submit any regimen which .. in practice .. filled over one-hundred body-bags cannot be said to have “been tightly controlled” ..

    i’m beginning to whimsically wonder aloud about the possibility the “Tim Leary Bottled Water Company ” was furnishing this whole bunch a special batch of product which wound up being used as brew -water in their cofffee urns … /s

    ohhh.. denizens herein .. just imagine .. if only lewis carroll had had material of this caliber from which to draw his inspiration…/s

    EW .. great work on your part .. and all the usual suspects as well .. special mentions to bmaz .. mary .. mad dog .. jason leopold .. many kudos to you all for hours of reading enjoyment ..

  20. fatster says:

    The Plum LineGreg Sargent’s blog
    Top Bush Terrorism Adviser Admits CIA Docs Didn’t Prove Torture Worked

    “Okay, this should settle it, but of course it won’t: We now have a former homeland security official under George W. Bush who has contradicted the claim by conservatives that the CIA docs released yesterday proved torture worked, as Dick Cheney said they would.

    “Frances Fragos Townsend, a homeland security adviser and close confidante of Bush on terrorism, made the admission late last night on CNN, where she’s a contributor. Here’s her quote (from Nexis):

    “‘It’s very difficult to draw a cause and effect, because it’s not clear when techniques were applied vs. when that information was received. It’s implicit. It seems, when you read the report, that we got the — the — the most critical information after techniques had been applied. But the report doesn’t say that.’”


  21. fatster says:

    Not a dupe, I hope.

    Gitmo judge bars defense from secret CIA prisons

    The Associated Press
    Tuesday, Aug. 25, 2009

    SAN JUAN, Puerto Rico — “Lawyers for a Guantanamo prisoner charged in the Sept. 11 attack do not need to visit secret CIA prisons where he was once held since the sites have likely changed and are no longer relevant, a military judge ruled.

    “The defense for Ramzi bin al Shibh wanted to inspect the clandestine overseas prisons where the Yemeni citizen was held from 2002 to 2006 – before he was moved to Guantanamo – to see if harsh conditions contributed to a mental disorder that has raised questions about whether he is competent to stand trial.

    “In a ruling released Tuesday, the military judge, Army Col. Stephen Henley, said that if the secret prisons still exist there have most likely been changes and “an inspection of the scene would serve little purpose” in determining whether bin al Shibh can stand trial.”


  22. Mary says:

    Geez it’s hard to keep any balanced feelings towards any of these guys the more you read. I’ve tried to keep a little respect for Levin, based on several things from before, but after looking at what’s been produced that’s all pretty much shot now as well.

    EW – something to factor in when you are looking at things like the Aug 6, 2004 letter to Rizzo is that the Rasul case was decided in June of 2004. That’s where they all got the shocker that yes, the Judicial branch of the US gov was going to say it had jurisdiction over the legality of the actions of the Executive branch, even when the Executive branch was claiming that when it acted outside of the US territorial boundaries it was no longer subject to the US laws that create it and empower it to operate at all.

    So when Levin says in his 8-6 and 8-27 letters that they can only be relied upon to the extent the techniques being authorized are taking place outside of US jurisdiction, he’s being about as irresponsible as you get. We’d just had a big shake up on the jurisdictional front and the only way he touches on it is to say, “go ye forth and torture with impunity – provided you never end up before a US court that says it has jurisdiction, in which case, don’t come lookin at me bubba” Unfreakinbelievable.

    Something else he does – on waterboarding is pretty indicative IMO that he had plenty of reason to believe tha the “facts” being presented to him were untrue (and since he probably should be charged with constructive notice of info that someone in DOJ, like Dan Coleman at FBI, had and spoke about freely and would have anted up with the exercise of any due diligence … argh, I won’t even go there I guess)

    Anyway, what he says about the waterboarding he is greenlighting in 2004 is that

    As we understand the facts, the detainees previously subjected to the technique are “in good physiological and psychological health”


    they have not described the technique as physically painful


    This understanding of the facts is material to our conclusion that the technique, as limited in accordance with this letter, would not violate any statute of the United States.

    Ok – so he’s saying if someone already waterboarded had mentioned it was painful, the opinion can’t be relied upon? Sheez louise – the things that opens up are legion.

    And then there’s the psychological health and physiological health of Zubaydah. You have to pretty much infer from all this, what with Comey’s involvement in the original Padilla motions and allegations of ill treatment of the “sources” and Comey heading up the investigations prior to his big presser June of 2004 with all the Zubaydah info supposedly collected for that, etc. that just maybe Levin had a freakin hint that Zubaydah wasn’t in primo mental and physical health. So instead of dealing with it, he carves himself a CYA niche.

    Everything in that summer / fall of 2004 time frame that I’ve looked at (the 7-7 Goldmsith letter is a good example) reeks of CYA about the DOJ’s role in authorizing Abu Ghraib types of abuses. It tries to wrap up reliance memos with ribbons and bows that will give it the ability to disclaim the known deaths and atrocities as being “outside” the limits it gave, yet still protect all the crimes with a layer of classification and “national security need to protect our uber confidential *advice*” to just get through the 2004 elections with Bush still in place so they can all get saved by his efforts to destroy evidence and use the Exec office to cleanse them all.

    That so many were so unjust is pretty traumatic. Rivkin can go with jarring, but I’m just too shook to be able to wade through any more of it for awhile.

  23. fatster says:

    Report reveals yet another unapproved CIA interrogation method: The hard takedown

Published: August 26, 2009 
Updated 2 hours ago

    “In the 2004 CIA inspector general report released on Monday, there’s a a great deal of redacted information on something called the “hard takedown.”

    “What a “hard takedown” is isn’t completely clear. But the massive redactions from the inspector general’s report suggest a technique equally dark as some of the more disturbing tactics involved.”


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