The CIA’s Latest Vaughn Follies
The CIA has released another Vaughn Index listing all the documents it refuses to hand over to the ACLU.
Some highlights are:
Other-3, June 17, 2004: This is an eight page document, including a routing slip, requesting continued legal and policy support for the CIA’s interrogation program.
This document must be a response to Jack Goldsmith’s June 10, 2004 letter to Scott Muller, stating that if he wanted the torture program re-approved, he would have to spell out what the program entailed.
Other-5, February 24, 2004: This is a 129 page draft document, regarding the review of the CIA’s interrogation program, with comments and suggestions from a CIA attorney on how the document could be improved.
This must be a draft of the IG Report itself (the final length of which is 109 pages, without appendices). I find this interesting largely because it suggests the report itself was drafted six weeks before it was ultimately released. Presumably, the lawyer in question is someone in OGC, probably Scott Muller or John Rizzo. Other-7 also appears to be a much earlier (January 13, 2004), much shorter (44-pages) draft.
Other-19, July 29, 2003: This is a 19-page Powerpoint presentation regarding the CIA’s interrogation program, as it relates to high value detainees.
This must be the PowerPoint used at the meeting at which John Ashcroft is alleged to have approved of the massive numbers of waterboarding sessions. By withholding it, CIA is preventing independent review of what they planned to say.
Other-23, June 16, 2003: This is a 4-page document, including a router page, that summarizes the applicable law to the CIA’s detention and interrogation program.
Other-25, June 16, 2003: This is an 8-page document, including two routing slips and a classification cover sheet. The document summarizes the law applicable to the CIA’s detention and interrogation program of captured detainees.
These must be versions of the Vaughn #19 document of the same date and content released in last week’s document dump (the 4-page document must not have a fax cover-sheet and the 8-page one must have several). Given that they’ve withheld Other-23 and Other-25 but released Vaughn 19, they must be protecting the content of the cover sheets on Other-25 and possibly earlier draft details from Other-23. Their exemption for Other-23 explains:
This document contains pre-decisional deliberative process information and confidential communications between a CIA attorney and CIA officers relating to a matter for which the officers sought legal advice. It was prepared by the CIA attorney or employee with the joint expectation of the attorney and employee that it would be held in confideuce, and it has been held in confidence. In addition, the information was produced by a CIA attorney in anticipation of litigation.
(The Other-25 exemption does not use the term "pre-decisional," which is why I think Other-23 might be still a draft.) This suggests the cover letter includes communication between lawyers and others, almost certainly at CTC, since that’s who sent Patrick Philbin the document. It’s interesting that the exemption claims the document was written "in anticipation of litigation."
Other-41, January 28, 2003: This is a 2-page document, with a 7-page attachment, from an OGC attorney, informing the Office of General Counsel of an OlG review of Agency practices and an OlG request for documents.
This is presumably Scott Muller’s or John Rizzo’s informing the rest of OGC of the OIG review. It provides the best starting date for the OIG review (and coincides with George Tenet’s issuing of new guidelines for the torture program).
Other-49, January 13, 2003: This is a 2-page memo with 5 pages of photos and a 1-page routing sheet attached. The memo was written by a CIA officer for a CIA attorney and discuss the interrogation of Abu Zubaydah.
Five pages of photos? Five??? We knew there was one photo of Abu Zubaydah, extant, from October 2002. But there are now five pages of photos?
Other-55, undated: This document contains 26 pages of photos and a handwritten coversheet detailing a classified intelligence method.
Um, 26 pages of photos? So 31 pages thus far of photos of torture?
Other-65, November 2, 2002: This is a 38-page document, outlining the need for and proposing a more intense counterterrorism program, for detained unlawful combatants. It discusses certain proposed interrogation techniques, medical information, and operational intelligence.
Note the description refers to "a more intense counterterrorism program for unlawful combatants," plural. That means this is probably a request for torture techniques in Afghanistan, for a wide range of detainees, rather than just harsher methods for al-Nashiri. Which would date the request to roughly the same time as Gitmo was requesting harsher methods for its detainees.
Other-69, September 10, 2002: This document is a 3-page memo dated September 10, 2002 from a CIA officer to other CIA officers discussing a counter-terrorism operation and proposing improvements to that operation.
This is presumably a memo about how to improve torture–or maybe waterboarding itself. What’s interesting about it is the date: less than a week after they first briefed Pelosi and Goss on interrogation methods, including the prospective use of waterboarding.
Other-73, July 24, 2002: This 1-page of handwritten notes dated July 24,2002 from a CIA officer describing proposed interrogation techniques that could be considered for use on detainees.
I bet you a quarter these are notes John Rizzo took as John Yoo gave him the oral authorization to torture.
Other-75, May 15, 2002: This document is a two page memo from one CIA officer to another CIA officer discussing information, provided by Abu Zubaydah, relating to a classified counter-terrorism operation.
So right in the middle of the period when FBI and CIA are fighting over how to interrogate Abu Zubaydah, this document goes out. It may relate just to one of the pieces of intelligence Abu Zubaydah gave. Or it might record his response to one of the earlier abuses.
Other-77, April 16, 2002: This document is a 4-page Memorandum for the Record by two CIA officers dated April 16,2002 that outlines pre-decisional discussions among CIA attorneys and officers, as well as attorneys from other government agencies that occurred in anticipation of a counter-terrorism operation.
This is the day Bruce Jessen started circulating his planned interrogation plan around JPRA. So that’s probably what this document is–and the "other agencies" are probably DOD.
Other-79, April 3, 2002: This is 4-pages of handwritten notes, dated April 3, 2002, by a CIA officer regarding the interrogation of Abu Zubaydah.
This has the CIA making notes on Abu Zubaydah’s interrogation 10 days before the torture index does.
Other-81, March 16, 2002: This document is a 4-page draft plan dated March 16,2002 from two CIA officers detailing proposed enhanced interrogation techniques.
Note that this is the same length as the April 16 document, so it may be a first draft of Jessen’s torture plan.
Other-101, February 7, 2002: This document is a four page memo and a two page memo that is undated and a one page email dated February 7, 2002. The email is informing a CIA officer that the writer of the email has been tasked by OGC to review memos. The emailer also mentions they need to follow up in the issue of whether paws could be tried in the U.S. criminal court.
This came during the lead-up to Bush issuing a memo on February 7 saying al Qaeda was not eligible for treatment under the Geneva Convention. Jonathan Fredman of CTC was heavily involved in these discussions, and is credited with carving out space such that CIA’s operations wouldn’t even have to be treated as if GC applied.
Other-131, undated: This is a 10-page undated document providing an chronology of events relating to the interrogation of Abu Zubaydah.
Ah, if they can’t release this timeline, it suggests they have a temporal problem. Which we knew.
Other-189, undated: This document is seventeen pages of undated photos of a particular detainee and a covert field station.
So 48 pages of photos.
Interview Report-3, December 6, 2002: This document is a 3-page memorandum for the record dated December 6, 2002 from a CIA officer relating to an investigation pertaining to a prisoner.
Recall that the IG Report purportedly arose in response to complaints about al-Nashiri’s torture and other problems–almost certainly the deaths in Afghanistan. So this is probably an interview pertaining to one of those deaths.
Interview Report-103, September 5, 2003: This document is an interview report of a senior CIA attorney by the Office of the Inspector General, with the Attorney’s comments on the report attached.
A couple of points about this. First this interview was with a senior CIA attorney. And this interview was classified at Top Secret SCI, whereas others were just Top Secret. So this was a higher level interview than the others listed.
Cable-63, March,5, 2003: This document is a three page cable with handwritten marginalia from the field to CIA Headquarters. The cable contains information relating to a detainee.
The detainee here is probably KSM.
Cable-183, November 21, 2002: This document is a five page cable from the field to CIA Headquarters. The cable contains information relating to the interrogation of al-Nashiri.
This was from the day after the email about al-Nashiri’s interrogation that appears to have sparked the IG Report.
Cable-213, November 9, 2002: This document is a one page cable from CIA Headquarters to the field. The cable contains information relating to the detention of al-Nashiri.
Note the interrogation index does not mention an HQ to field cable on this date.
Email-394, November 12, 2002: This document is a one page email chain between CIA officers with a one page cable attached. The document relates to the interrogation of a terrorist suspect conducted within the CIA’s counter-terrorism program.
Note the reference to a "terrorist suspect" here. This would have been written just after the first of the CIA detainees died in custody.
Email-591, July 10, 2002: This document is a 2-page email chain between CIA attorneys. The document contains the attorneys’ legal analysis as it relates to a specific issue that arose in the context of the CIA’s counter-terrorism program, which was created in anticipation of litigation.
This email chain was written three days before John Yoo gave John Rizzo information about how to avoid criminal liability for torture.
Email-690, April 5, 2002: This is a l-page email with an attached two page cable from a CIA attorney to a CIA officer regarding the interrogation ofAbu Zubaydah.
Again, this is one of the earliest dates when we’ve got CIA involved in Abu Zubaydah’s interrogation.
Email-738, October 15, 2001: This is a 2-page email, from a CIA attorney to herself, explaining the rules in which CIA officers may participate in the interviewing or debriefing of detainees.
A CIA attorney to herself? Does anyone sniff a bcc?
My bold – WTF?
That’s almost certainly Jessen’s draft interrogation plan, circulated on that date.
Two weeks before Zubaydah’s capture. And three days after Yoo prepared the rendition legal memo
The CIA was reviewing memos in Feb 2002.
Jonathan Fredman of CTC was involved in the debates on GC. SO we probably know both who that was and what memos in question.
He is credited with carving out space such that CIA would never be held to treating detainees “as if” GC applied.
Really, an undated PowerPoint presentation? You’d think somebody at the CIA would know how to perform the following secret spy trick. Open up the file in PowerPoint. Look at the document properties. Here’s a hint: It’s the modified date you’re looking for. Sheesh.
Horton’s got one at Huffpo:
Thank you for that link Loo Hoo. And Bellinger didn’t return the call – what a surprise.
@22 – that was my reaction too bmaz. How is it you are preparing in anticipation of litigation and yet no lit holds are going out? BTW – I keep going back to the Jan 2002 memo of Gonzales’ basically serving as an admission that they were already engaged in things that, “but for” coming up with the illegal enemy combatant theory/argument would be war crimes and also an admission that they were anticipating future war crimes act litigation in order to start up the clock on some duties to preserve – I guess I may end up having to move that date back into 2001.
@26 – that’s some interesting input too. I’m not much up on agency representation/crim defense etc overlays, but I have to wonder about how and to what extent an agency lawyer establishes atty-client relationships and privilege with an employee of the agency who may end up with a diverse interest and where the work product issue line might be drawn. No ideas, no thoughts, just wondering.
@38 “studiously avoided” was my reaction too. Hmm.
I know you like to make fun of Gonzales for the admission in the GC memo.
There is also a December 28, 2001 Yoo and Philbin memo, where in section III they basically admit they can’t allow habeas access, because that would unravel the whole system.
One of the freaking few times they were right about something legal.
If you haven’t seen it, btw, IMO this Jacoby Declaration filed after DoD had already had Padilla disappeared into a Geneva non-Compliant regime of abuse is one of the most chilling things I’ve ever seen and that a court could just blithely go along with it is as creepy a thing as I can think of offhand.
The reason that a US court should not grant habeas to a US citizen who has already been disappeared into a human interrogation experiment for 6 mos? Not only no habeas, but not allowing him an attorney? Well, Jacoby proudly says its bc they are experimenting on learned helplessness and 6 mos of experimentation haven’t been enough to fully disassemble him mentally and emotionally yet – and allowing an attorney and a hope for justice will just ruin the experiment; so plz mr ct, u let me keep mouse till he limp and go right where I bat him, kaythnxbai.
An Admiral telling a court to let them keep experimenting on an American until they could make him say anything they wanted him to say and the court just doofusing along – it was shocking in what they were happy to put openly in the record. I still end up with the hairs on my arm standing up when I read it.
“even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship”
Who was that F.B.I interrogator who testified behind a screen during one of the hearings? He was so wise and so pissed off that torture was used on detainees that he had been making progress with?
Wonder if “water boarding” would be defined as a “minor interruption”
Liz Cheney still says water boarding is “not torture”
how absurd in this clip (watching again) Liz Cheney says the CIA needs to be focused on U.S. National Security. Christ All Mighty her daddy outed an undercover CIA agent.
this woman spits out a contradiction every thirty seconds
Ali Soufan. If you haven’t read Lawrence Wright’s Looming Tower, it’s a good read and has some very interesting bits Re Soufan.
Over and over, the torture apologists ignore the fact that some of our best resources were excluded from interrogation specifically because of torture; insurng we would get less than we needed.
Thanks for the recommendation
From Democracy Now Monday
CIA Report Details Role Medical Professionals Played in Torture Program
A new report by Physicians for Human Rights has found that physicians and psychologists played a greater role than previously understood in designing, implementing and legitimizing the Bush administration’s torture program. The recently declassified CIA Inspector General’s Report detailed how medical professionals collected data on the reaction of prisoners to interrogation methods in order to help the CIA assess and refine the use of waterboarding and other techniques. Dr. Scott Allen of Physicians for Human Rights said, “Medical doctors and psychologists colluded with the CIA to keep observational records about waterboarding, which approaches unethical and unlawful human experimentation.” Physicians for Human Rights is calling for health professionals who have violated ethical standards or the law to be held accountable through criminal prosecution, loss of license and loss of professional society membership, where appropriate.
As I mentioned on the last thread, why are these both named “Declaration Of Wendy M. Hilton, CIA” yet they have different lengths and different signing dates:
Declaration Of Wendy M. Hilton, CIA (33 page PDF) dated August 31, 2009.
Declaration Of Wendy M. Hilton, CIA (42 page PDF) dated August 28, 2009.
From Rachel over at the ACLU:
Excellent! Thanks for chasing that down!
thanks for spotting it! Keen eyes.
[Misdated in the Vaughn Index as 1/22/2002 (presumably should be either 1/22/2003 or 11/22/2002)
It’s interesting that the exemption claims the document was written “in anticipation of litigation.”
I have no doubt you, EW, aleready know this, so this is for the newer, non-lawyer types in the audience. When one says a document was “prepared in anticipation of litigation”, that phrase is a buzzword to have that document fall within the attorney work-product privilege. That’s a privilege (entirely distinct from the attorney-client privilege) which is designed to shield from lawsuit discovery (and probably though not necessarily from FOIA) a document which contains the thoughts, impressions, research or analysis of a lawyer, prepared so he/she can give candid advice to their client.
Bluntly, anything can be construed as being “prepared in anticipation of litigation”, if you strecth it far “anticipation” or “litigation” enough. And the litigation which was anticipated when the privilege was invoked might be one that you fear someone else might bring against you. Moreover, you do not have to disclose which litigation (actual or contemplated) you were or might have been contemplating when you invoke the privilege.
In other words, you can use the work-product privilege to mask all your thoughts and analyses behind even the most unlikely of litigational fears, if you draft your responses carefully enough.
What I do in PI cases is, from minute one of the reprsentation, have the client prepare a “pain diary” rcording everry ache, pain, twinge, aspirin (or heavier pill), doctor visit and complaint even remotely related to the accident. This document, because it’s “prepared in anticipation of litigation”, falls within the attorney work-product privilege (this is one of the situations where the client’s communication to me would fall under the heading of attorney work, because they are providing me with information upon which I can base my litigation strategy). The client then can record all the debilitating instances of pain and inconvenience and have a contemporaneous record which is not discoverable unless and until I want it to be. (And, by unburdening themselves, they can help themselves get better by not having to hold onto every instance of pain until the suit is over, and they wind up recording more then they would have remembered – people tend to forget pain faster than they do pleasure.)
But, it’s the same thing – every twinge and ouch of my client gets hidden under privilege, and every groundless litigational fear gets hidden under the CIA’s invocation of the same privilege.
Yeah, ‘prepared in anticipation of litigation’ set off my spidey sense…
There also seem to be a whole lot of undated documents that notes taken by lawyers. I don’t have a lot of experience with lawyers, but all the ones I’ve worked with have been a little obsessive about making sure that everything is dated.
Didn’t we go through all that undated lawyers’ notes crap when Barbara Comstock and friends were busy hunting the Clintons?
Am working on other things unfortunately, but saw this comment. What is the purported nature of that doc? I ask because they have said so many times (think torture tapes etc.) that they never had any inkling of the possibility of litigation and that is why their wholesale destruction on material evidence is hunky dory. To the extent you guys can, maybe keep track of every time you see the “anticipation of litigation” phrase; it might would be valuable juxtaposition on a whole host of things.
Oddly enough, they make that claim about the 10/15/2001 email to herself by the CIA attorney:
Exemption b(S)-This document contains pre-decisional information and impressions of a CIA attorney, as well as the legal analysis. and opinion prepared by a CIA attorney to provide legal guidance to her client in anticipation of litigation. It was prepared by the CIA attorney with the expectation of the attorney that it would be held in confidence, and it has been held in confidence. This information is thus protected from disclosure by Exemption b(S).
Like I said, bcc.
One wonders which contractor was the recipient of the bcc?
~ October 7, 2001 the Taliban did offer to try bin Laden in Afghanistan in an Islamic court. The offer was rejected by the U.S., with the bombing of targets within Afghanistan by U.S. and British forces commencing the same day.
So within an week there were “detainees” coming into CIA custody???? Is that what they are asserting? Or were they already discussing issues that they knew would involve War Crimes litigation? “Prepared in anticipation of litigation”?
I have a couple of questions about such “declarations”…
1)Do they have to made made at the time of the discussion or are they able to say “this is sealed” later…because we now realize that it is relevant to a crime committed down the road? If so does the declaration have to be dated?
2) Can such a declaration be made about “potentials” or does the actual act have to been committed?
Just who were they anticipating being the “litigants”? If they are declaiming that the detainees are NOT protected by US law does this protection carry any weight? How could there be any litigation anticipated? The detainees certainly could not do so before a military tribunal. Thus there should be no “shelter” under these terms.
This is a good start — but it’s a big, big problem, and it recurs & recurs, so it’s worth running with it — tho probably not too far here, where folks are just now beavering away amidst fresh wreckage.
3 quick points:
 scribe picks a homely example to relate the problem to the relatively mundane practices of tens to hundreds of thousands of attorneys, in terms that illustrate the nature of insidious motivation that can creep into the process, and touches on the fact that this happens even where the motivations are at least superficially arguably ‘humane’ in some sense.
IOW the material so often identified as used to construct roads to hell.
 There are quite devastating, practical & pedantic CONSEQUENCES from getting CAUGHT in the strategy scribe describes: to the claimants in the denial of compensation from lawsuits being dismissed , to the attorneys from sanctions, being shunned or disbarred, even to having to go to work defending insurers.
 The law on privilege — & to a regrettably inferior extent FOIA process — recognizes not just theoretically but in practical ways the important distinction between lawyering up & lawyering per se. In the former category the presumption of client confidentiality is practically sacrosant; in the latter, a challenger in the position of ACLU can [& will] challenge [as it has to date & is now challenging] the drawing of the line by those interested, & the courts can, should & do look the totality of circumstances in deciding whether the challenger has made out a case that satisfies the court that the former privilege has been abused [not on the criminal conviction standard of beyond a reasonable doubt; not on the civil verdict standard of probability; but on a smell test] that it ought to look into the claim for withholding further, including looking at the affected materials.
So there is at least a route to possible consequences — & more grist for fearless leader’s mill.
In the state where I practice, that strategy is expressly allowed under a line of cases stretching back well over 10 years.
What you suggest in the quoted section as being a “downside” would, then, depend for its existence on which state one finds themselves in.
Let’s not get sidetracked. It’s palpably evident that at least one attorney in CIA who was, in fact, read in on the program at issue from the week of 9/11 saw in that program the almost inevitable beginnings of both litigation and of the need to cover his/her own behind and, possibly, to cover the behind of the Agency.
Putting the work-product privilege into a document at that time was (a) probably an exercise already imbued in that attorney by rote repetition (”I always anticipate litigation concerning anything I touch, and then if it should come along have protected the Agency with another layer of belt-and-suspenders litigation defenses.”) and a recognition of the radioactive (i.e., goes against everything ever taught) nature of what was being discussed.
At the time of 9/11, members of a now-former colleague’s family were career Agency employees who spent literally weeks working nonstop trying, with so many others, to close the barn door after everything had already run out. Not that it did much good – bin Laden is still running around.
thanks for that explanation
ew ” Does anyone sniff a bcc?” What is a bcc?
ot hope folks saw Liz Cheney keep her head up where the sun does not shine on Sunday. She was on “This Weeks” roundtable
She actually had a few nice words about Ted Kennedy..but then when they went to torture. Liz went ballistic really desperate. She actually said waterboarding is not torture. She is fighting hard for her Daddy.
Watching an listening to the the whole conversation is worth it
Blind carbon copy, I guess.
This is interesting because it’s from Oct. 2001″
Document Number: Email-738
Date of Document: 10/15/2001
Document Type: Email
Document Pages: 2
Isn’t that also the date of another DOJ legal memo? Or something that Yoo sent to Flanigan on that date about military commissions/fourth amendment?
The re line of that email is “Covering my own ass” (/s)
And as I pointed out upthread–she sent this to herself. Any bets she sent it to herself and “bcc”?
Hey, where’s the rest of the documents? In the remand order, the judge refers to 319 documents (including the IG report). The CIA released eight documents. That Vaughn index covers about 150 documents.
Am I missing something or does this not add up?
There’s another Vaughn covering OLC documents coming:
That Vaughn will come out September 21.
What did Barabara Comstock do in all of this business ?
What I find both amazing and quite interesting is the pleasure we all get out of a “non-document” document dump. *g*
When Spencer noted this past Friday that we weren’t going to get the additional DOJ/CIA documents as promised for August 31st, everyone was bummed.
And yet, just look around and see how many juicy bits have already been derived from these “non-documents”.
That’s what makes this place so special. Really amazing, isn’t it?
So, are we talking about a “general” in anticipation of (in theory) or a “specific” in anticipation of (in praxis)?
In “praxis” would seem to be an admission of the potential of criminal activity?
To all here who have wondered about that curious phrase of “in anticipation of litigation” and its motivation by those anticipating it, here is the explanation straight from the mouth of Wendy M. Hilton, CIA (33 page PDF); pages 27-28:
I’m particularly struck by the forthrightness expressed in the bolded portion.
Shorter Wendy M. Hilton, CIA: “Anybody know of a good criminal defense attorney?”
“requests for legal advice from CIA attorneys to the Department of Justice”
CIA attorneys are not “The CIA.” The ‘few bad apples’ might be the policy makers and not the subordinates.
I agree with you that most of the bad apples in the CIA barrel were the high-up muckety-muck policy and management folks.
That isn’t to say there weren’t worker-bees who broke the rules/laws, but there is zero doubt that this was all driven from on high!
Who does this provide cover for?
Hopefully, no one. *g*
There ya go! Exactly what I was talking about in my last hit and run @22 above. The pervasive use of this phrase is directly contrary to the blarney the CIA attys and government spewed in relation to the torture tapes and many other things, several of which Mary hit on @32 above.
Sounds like the criminal defense attorney business in DC is a growth opportunity. You could get in on the ground floor. *g*
It sounds to me almost as if there’s been a decision that, while the DOJ lawyers are going to continue to be covered they’ve decided on professional standards issues to hang the CIA lawyers out to dry vis a vis the destroyed docs. Maybe as far as obstruction? It’s really interesting and pretty soon someone is going to have to start aligning names on this stuff.
I hope the guys pressing this case
trying to get Rizzo, Muller and Fredman disbarred for torture participation, don’t forget to try the less sexy but perhaps more pragmatic route of also trying to get them disbarred for participation in destruction of evidence “in anticipation of litigation” *g* as well. Sometimes its not how you get there, it’s that you get there.
This is why I have been screaming about the torture tape destruction case since the second it became known they were destroyed, and why I have been incredulous about Durham. He has twice indicated his inclination that he is having a hard time finding chargeable criminal conduct. How the hell is that? The whole premise (a faulty one from the start, but the one relied on) is that they searched and searched the world over and couldn’t find any way, shape or form that the tapes could possibly be relevant evidence. That is close to being the biggest pile of dung I have ever heard. And lo and behold here they are all aquiver at the Company about – wait for it – litigation!! Go figure. And of course, that is all in addition to the patently obvious I have always pointed out, to wit the detainees in the tapes themselves had an absolute evidentiary interest in their preservation (they are still locked up and yet to be given any shot at process last I heard).
when has Durham said he doesn’t have a chargable case? I’ve seen it in anonymous reports, almost all totally unreliable/oddly resembling the kind of leaks Bob Bennett likes to spread.
He didn’t say that, it was more wishy washy, but that was the implication. The first one was well before the Foggo bit and, if I recall, was attributed to a “source close to his investigation”, but it struck me as believable. Was to the effect that he was winding down his investigation and it was unlikely any criminal charges would be found. The second was just as he was announced recently as Holder’s choice on the “preliminary review” and had much the same tenor to it. In fairness, this one struck me as flimsier and I could not with any certainty determine that it was not simply regurgitation of the pre-Foggo bit. Long story short, I don’t dispute your characterization, although I tend to find the first instance credible.
Absolutely astounding. Thanks for the quoted material.
This part stands out to me:
If the “advice was not solicited in the ordinary course of business,” does that reflect a conflict of interest? IANAL
Could a legal type translate the context of that statement?
Isn’t she implying, “not in good faith?” And, not comporting with usual and customary practices?
When I hear that it sounds to me similar to saying that the acts were not part of the job description. That usually means that they aren’t “covered”. If I do something “outside” my job description…outside “the ordinary course of business” I’m not legally defendable, insurable, or responsible to “my employer”. I’m on “private time”.
It’s an odd statement. I don’t know why someone would put it in there unless they were covering for someone else…saying the recipient was “free-lancing” and that the legal advice was not “under official cover”.
I think that if advice is solicited solely “in the ordinary course of business,” the request and the advice are not within the scope of the work product privilege.
In other words, I think this is a technical requirement to meet the predicates for asserting the work product privilege. The distinction is that preparation for litigation is not considered to be “ordinary course of business.”
I’m rusty on the application of the work product doctrine, so I am not sure whether requesting advice about how to avoid violating the law in the course of complying with a direct order from a superior would be part of “ordinary course of business” or not.
Well, this will not help you or others here all that much, but the answer to your and their question about privilege is – it depends. For starters, as others have noted above, the attorney-client relationship is fundamentally different, usually for the weaker, in an in house counsel situation. There is also a distinct difference between the nature and scope of the attorney-client privilege and the work product privilege. Arguably, for anything having to do with the regular scope of business for the relevant entity, there is no attorney client privilege, it is considered waived; although that is not always the case. The work product privilege is a little stronger if properly asserted and asserted in the proper circumstances. But mostly, these are issues that must be dealt with on a case by case and document by document basis and decided on a full fact set in each.
Man bmaz, that bothers me to think about.
So there is essentially the “potential” of a legal cover for illegal behavior?
Sounds like you could write a whole post on the quotes at 31 and 40. I would be interested in what the parties involved will make of those statements.
You’re are most welcome!
And in regard to this:
That says a couple things to me:
First, the CIA, by its very nature, is always involved in a lot of illegal stuff. Mostly stuff that is illegal in the country where they’re doing the spying.
And second, “not solicited in the ordinary course of business” needs to take that 1st observation into account.
It must have been mucho illegal in the minds of the CIA if it fell outside of their “ordinary course of business” frame of reference.
Other-5 Would also indicate the status of knowledge at the CIA lawyers’ level when represenatations were being made by Clement to the Sup Ct about torture in April 2005, and the time of Brinkema’s 5-2-05 order.
I have to really wonder WTH was going on with lawyers in ED VA looking at all those criminal referrals for torture when they read about Clement’s statement to the Sup Ct – which was then juxtaposed with the Abu Ghraib pics.
It would be nice to get the CIA declarations in response to her 03 and 05 orders and see who at ED VA was signing off on the profer of the declarations and who at CIA was signing off on the declarations – – then get a the list of the “career prosecutors” at CIA involved in the decisions not to prosecute, and the name of the CIA lawyer who reviewed the IG report. Added to that should be a list of any lawyer or DOJ (including FBI) agent with a duty to the courts who worked on that supposed big coordinated review that Comey references in his Padilla presser, bc there is no freakin way those guys didn’t get exposed to info on torture and instead of correcting the record for the court – they went so far as to set up that deliberately misleading presser. I guess Nifong’s big mistake was that he wasn’t in DOJ when he pulled his presser.
Along with Muller and Rizzo, I guess you shouldn’t exclude Mr. “If the Detainee Dies” Fredman as a possible for the IG report review – Spencer reported earlier this year that Fredman’s still around at CIA with the new (I dunno if waterboarding is torture) GC.
Here’s an interesting confluence of dates from my torture timeline:
Anyone want to hazard a guess about what day they waterboarded al-Nashiri? Only you can’t have November 20 or 21, bc I already put my quarters on those two days.
Bush’s Third Term?
You’re Living It
Did we elect President Rahm or President Obama?
All the photos is why I’ve been hitting on them as well as the tapes. A lot of photographing is mentioned by Grey and there’s only so many reasons to take nude photos of a kidnapped man who is being held helpless. And back we go to “the preliminaries.”
0ther 23 and 25, from that description (law applicable) might also go into the laws of the torture sites’ hosts. That might be something they don’t want to reveal since it would reveal locations.
Does other 65 say from whom, to whom?
Other 189 – granted the pictures may be undated, but they really have no idea of when they were taken?
CIA to herself as an email – I don’t sniff bcc as much (although it may be there) as a) cover for a verbal conversation where she thought the advice given was iffy enough that it would not be reduced to writing so that there might be a he said/she said moment in her future, and b) she wanted to make sure she had the exact info down as contemporaneously as possible so that there would be little question in her mind later as to exactly what she was told and whether actions fell within exactly what she was told and c) she was concerned about doc destruction and knew how hard it was to truly erase permanently emails and wanted to be able if there was an investigation to be adamant that an email was there if somehow it didn’t come up easily. fwiw, jmo.
No, not at all, perhaps studiously avoided it. Doesn’t even say a lawyer was involved. It does say it’s “intra-agency predecisional deliberations” though.
I was wandering down that path earlier myself, but I think I finally figured out my misunderstanding regarding the interrogation index spreadsheet.
Based on Judge Hellerstein’s April 20, 2009 order (2 page PDF), it looks like the CIA only had to produce:
The way the CIA appears to be reading the Paragraph 3 requirements is only records that relate to the content of the tapes.
I’d suppose that there were numerous cables about detainees’ detention that didn’t in the CIA’s view “relate” to the contents of the tapes.
I’ve been chasing this ghost of missing cables myself since May when that interrogation index showed up, and I think I’m only now finally “getting it” *g*
Maybe they don’t have to include it bc it pertains to the parts that were erased before IG got to them.
Laura Flanders going where few are willing to go
“little to no coverage in the states”
ot: spot.us has a job opening for a Project Manager for their L.A. site. spot.us is –
@54 – I’m with you brother bmaz. And since Brinkema’s orders were, IIRC, specifically addressed to interrogations of people Moussaoui had referenced, which pretty much specifically included KSM and Zubaydah (again IIRC), how hard is it there to get to obstruction? Direct violation of production orders followed by destruction?
@53 – the memos are all incredible. Philbin’s memo from even earlier I think (I’m bad on dates and names in general, although some stick withme) about the ability to use military commissions for trials (think how far we’ve come – then they were wondering if they could validly even make that an option, now torture murders of 20 yo suspects and cab drivers and the like are de rigeur for the GWOT) uses as a part of his rationale for WHY military commissions could be used the fact that Geneva Conventions would, of course, apply.
Memo FAIL time?
And over and over, the memos basically provide that they behaviour they are soliciting is ok and legal and all, as long as no US court exercises jurisdiction. NOt – oh, as long as a US court doesn’t decide that x and y statutes that we don’t think apply do apply; not as long as a US court doesn’t weigh reasonableness or define the relatively undefined torture differently, etc. Instead the caveat they offer up is as long as no US court gets JURISDICTION our opinions are good to go on legality. LOL Imagine any normal atty giving their client an opinion that says, “Hey, this opinion is good to go, as long as, you know, you never end up in a US courtroom.” As exclusions go – that’s a biggie.
EW: Back to item 65 that doesn’t mention to-s and from-s. Isn’t it kind of something that within days of circulating something, “outlining the need for and proposing a more intense counterterrorism program, for detained unlawful combatants ” Nov 2, 2002 (notice the absence of “high level al-Qaeda operative” or “high value detainee” as opposed to just regular ol detained unlawful combatant) you get both the slow death by freezing in Afghanistan of a 20ishyo “suspect” and the al-Nashiri situation (where you and others have made a decent case out for the likelihood of his waterboarding possibly triggering something like the need to cut his throat for a tracheotomy or something similar occuring)
If my encouragement to get “more intense” with any ol detainee, to heck with high value crapola, ends up with a 20 yo body to deal with, I probably wouldn’t want my to/froms circulated, even by position if not name, either.
See, I’m wondering if the impetus wasn’t from the other direction. If the push to harsh up at Gitmo (coming partly out of your favorite field trip) also had a parallel effort within CIA.
Parallel or even intersecting. Do you wonder if the fourth branch could be an “agency” in DOJ’s mind, for the purpose of intragency references? If Addington was putting together harsh up field trips for GITMO in Sept (despite finding out in August that a huge chunk of the detainees there were completely innocent of being combatants of any sort) and he gets Fredman (sometimes I overlook the CIA involvement in GITMO interrogations early on) there to explain how to prolong the life of a torture victim in Oct, then it kind of leaves him and some CIA lawyers with nothing to do but swap gum in Nov. /baseless groundless spec
DOesn’t matter whether Fourthbranch is an agency. Addington wouldn’t have left fingerprints.
Marcy, is this Obama/UBS seeming scandal in my diary of any interest for your sensibility and exploration? I am over my head, but TCU comments it certainly deserves deeper attention. I know how focused you are working and on so many fronts and I thank you. Again, if you have time. It’s the Seminal diary about 2008 Campaign Flyer for Edwards/WaPo Story on Obama and UBS president golfing…. thanks! libby
Rep. Nadler Says Holder’s Torture Investigation Should Examine Cheney
America’s soul is eternally damned if Cheney is not convicted of criminal acts. Cheney has created such a wide swell of “me-too’s” saying that torture is perfectly OK that anything less than repudiation of this entire worldview can restore the U.S.’s commitment to moral standards in political acts.
Three cheers for Sen. Whitehouse and Congressman Nadler.
And what blinders have John Brennan and Greg Craig [??] fitted Obama with that the President cannot see this?
The peasants know as well as folks around the world know that the Bush administration operated outside of the law and that it is highly unlikely that they will be held accountable.
The fact that mucky mucks are often above the law is why there is so much disrespect for our so called Justice system. Well along with the Supreme Court selection of Bush and Cheney…that took the Supreme Court and put them in the gutter in the eyes of many
Former CIA director says axed assassination program ‘valuable’
A program that never got going was valuable? Makes you think what Hayden would call valueless and kind of puts context to his claims about all that valuable info they got from torture.
I’m going with Hayden for the first verse, Addington for the second, and Bush for the third.
Until just now, I never thought of Steely Dan as a group of clairvoyants, writing about the Bush national security crew.
Beautiful. Or this:
Mikey Hayden ain’t the Crimson Tide.
I’m bad on names and dates too, so when I read stuff here I write it down.
At Abu Ghraib, after some embarrassing visits from the Red Cross that discovered most everything that would become the scandal, they made similar arguments to deny access.
Telling the ICRC “We can’t let you see him because it would interfere with our interrogation plan to break him through torture and throwing him in the hole” is pretty equivalent to telling a district court “We can’t let him see a lawyer because that would interfere with our interrogation plan to break him through torture and locking him up in isolation.”
Is there any question as to the 6-16-03 “bullet points”?
BTW, that is great. Better than the one I have in Excel.
Thanks for that, I’ve bookmarked it.
from ew’s report:
“Other-55, undated: This document contains 26 pages of photos and a handwritten coversheet detailing a classified intelligence method….”
it seems there are numerous pictures included with these docs.
that has got to worry the forces of evil within the obama admin – white house, doj, cia.
what if, as a strategy, one foia’d pictures only?
thereby bypassing any objection about names of cia, doj, white house, dod personnel being released.
THAT is an interesting thought.
Claim: ‘Sexual predators,’ ‘deviants’ allowed to ‘run rampant’ in Kabul
BY STEPHEN C. WEBSTER Published: September 1, 2009 Updated 1 hour ago
Senator calls for investigation, via Twitter
“According to a watchdog group and a litany of whistleblowers, Armorgroup North America, a key U.S. security contractor in Afghanistan, has suffered a breakdown of its chain of command resulting in an atmosphere in which “sexual predators and “deviants” are being allowed to “run rampant” at the U.S. embassy in Kabul.”
So, the joint is chock full of Republican congressmen??
Security Firm Gets Iraq Contract Extended by State Dept
Company Banned From Operating by Iraqi Government Earlier This Year
By KIRIT RADIA
Sept. 1, 2009
“The State Department has extended a contract with controversial private security firm Blackwater, ABC News has learned. The contract was due to expire this month.
“Sources say the department has agreed to temporarily continue using the subsidiary known as Presidential Airways to provide helicopter transport for embassy employees around Iraq until a new contract with another security company, Dyncorp International, is fully implemented. Presidential Airways is an arm of U.S. Training Center, which is a subsidiary of the company Xe, formerly and still commonly known as Blackwater.”
Here’s Ridge…and Rachel dissecting him.
American Diplomats Advocated “Nuremberg Defense”
By Scott Horton Special to the Huffington Post
“Two newly-obtained documents show how American diplomats during the Bush administration worked tenaciously to incorporate what is commonly known as the Nuremberg Defense into a new international convention addressing enforced disappearances.
“The rejection of the notion that government agents could avoid liability for crimes by arguing that they were simply following orders had been a bedrock principle of the American government ever since shortly after the end of World War II, when that defense was employed during the Nuremberg war-crimes trials.
“But the new documents, obtained by the ACLU through Freedom of Information Act litigation, show how State Department officials tried to establish what they called “the good soldier defense” . . . ‘
I haven’t read all the comments, so this point may have been noted already, but remember there is a “future crime” exception to the attorney client privilege, an exception that I think also nullifies the work product privilege.
Any of these communications that disclose an intention to violate the Commission Against Torture, U.S. statutes, or an intention to commit war crimes in violation of the Geneva Conventions would thus not be protected by any exemption for attorney-client privilege or for attorney work product. And any communication by an attorney that instructs the recipient that it is OK to commit any of the above crimes (or any other crime, for that matter) is similarly not protected from disclosure by any of the exemptions that protect communications to and from attorneys.
Also, EW, if there are any “bcc”s on any of these memos, e-mails, etc., it will be worth checking whether the disclosure to the recipient voided the attorney-client privilege or abrogated the work product privilege. If the original communication was directed to any non-privileged recipient, then there may be a strong argument that the privilege never existed, and cannot be used to resist production in response to the FOIA.
Other 137: document is 66-pages of undated handwritten notes, written by a CIA attorney,
regarding an investigation relating to a counterterrorism operation. The document contain information that was
prepared by the attorney in anticipation of litigation and that relates to classified intelligence operations, sources, and disclosure by Exemption b(3). …
document also contains information relating to the organization, functions, and names of persons employed by the CIA that is specifically exempted from disclosure by section 6 of the Central Intelligence Act of 1949, as amended,
50 U.S.C.A. § 403g (West Supp. 2008), and thus is protected from disclosure by Exemption b(3).
Exemption b(5) – This document is withheld in its entirety on the basis of Exemption b(5). This document
contains information, legal analysis, and opinion prepared by a CIA attorney in contemplation of criminal, civil, and administrative proceedings. It was prepared by the CIA attorney with the expectation of the attorney that it would be held in confidence, and it has been held in confidence. This attorney work product is thus protected from disclosure.”
Wait…nobody asked for this ’til now…so it’s exempt??? Why do I think this is the notes from someone tht saw the tapes and is a point-by-point notation of them. 66 Pages? Relating to one individual (Rodriguez?) who might be subject to Humiliation? “it might embarass the interrogator…thus it’s exempt? That’s not a FOIA excuse. Yet they continuously use this “personal privacy” argument as a rationale.
I would add this use of “exempt,” “personal privacy” arguments to the request for a post on all of this discussion on privilege.