No One Saw the Bybee One Memo, Either

One last detail from last years’ torture hearings before HJC. At the hearing with Daniel Levin, Keith Ellison asked whether, if someone relied on the Bybee One memo (the "organ failure" one), whether they could be prosecuted. 

Mr. ELLISON. Do you believe that the earlier memo gave license to people following its direction to engage in illegal techniques, interrogation techniques?

Mr. LEVIN. Well, it included a definition of torture that I frankly disagreed with and which would have, I think, allowed techniques that I would have concluded violated the statute. And it included this discussion of ways that you could overcome the statute, even if it applied and otherwise would have been violated.

Mr. ELLISON. So if somebody were to rely on that memo, the earlier memo, they would have been violating the law intentionally?

Mr. LEVIN. If somebody relied on the first part of that memo and went up to the limits of what it allowed, in my view they would be violating the law.

Now, again, maybe I am wrong and the earlier memo is correct. If somebody relied on the other constitutional overrides of these defenses, in my view they might well have been violating the law. It obviously would depend on the circumstances.

Mr. ELLISON. Did that ever happen?

Mr. LEVIN. I don’t know. I don’t know. I know there have been lots of investigations into sort of how things ended up happening and who was relying on what. My understanding was that that memo was very—was not broadly circulated. And so I don’t know whether people who were engaging in any conduct were even aware of the memo, let alone relying on it. [my emphasis]

Levin reports–about the Bybee One memo–something similar to what we’ve heard about the Bybee Two memo: that not many of the torturers had seen the document.

Beyond that, officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

"A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

So if both these reports are correct, then the torturers can’t claim to be relying on the Bybee One memo, nor can they claim to be relying on the Bybee Two memo. 

Which say, of the documents we’ve seen, the JPRA document remains a candidate (which described the waterboarding as it occurred, not as it was approved in writing), or the Legal Principles document (the oldest known copies of which date to 2003).

One more note: remember Daniel Levin’s background. He took over at OLC in 2004, but before that he was the Chief of Staff at FBI. So he would have a very different understanding of these investigations than, say, John Yoo might. 

89 replies
  1. rincewind says:

    So only the people GIVING the orders saw the memos, not the people FOLLOWING the orders? They had no docs in the field? (and so were totally reliant on what higher-ups told them was approved)

    (please forgive if I’m befuddled/haven’t had enough coffee…)

    • Rayne says:

      It’s potential evidence of bad faith on the part of the entire torture delivery chain.

      Let’s say there’s only verbal orders to commit what up until the Bush administration has been considered torture. Someone relying on these orders alone will only have the Nuremberg defense available to them.

      And those giving the orders will have shown bad faith by not making supporting documentation available and expecting subordinates to rely on orders alone. They can’t say, Well, we told them it was policy, because there was no widely distributed supporting documentation.

      These people will only be able to claim Apology is Policy — and I’m sure the lawyers here will tell you that and a couple of bucks will buy you a beer.

      • rincewind says:

        Okay, so you’re saying that my comprehension of what EW is saying is correct; AND that my INcomprehension of what they did is justifiable? ;>

    • DWBartoo says:

      ” …were totally reliant on what higher-ups told them …”.

      Well, yes, the use of this inspired paradigm cuts down on confusion and misunderstanding.

      It also provides efficacious denial of responsibility, or sure-fire “outs” for upper-lings when used in a conscientiously applied program of regular professional messaging …

      Appears to be working a charm.

      It would work even better were we to farm the whole darned “thing” out to “outside” contractors, since they are not bound by the same rules.

      Betcha Congress would “buy”.

      And what’s for the White House, ANY White House, not to like with such a plan?


      Those of us with “doubts” or those doing the “playing”?

      What think you?

    • emptywheel says:

      I’m not sure I buy that. THe Legal Principles document, for example, seems to have been a CTC doc, not an OGC doc, suggesting that that one may have been circulated.

      And back in my old days working on procedure documentation, when everyone was consistently performing a task unlike the official procedure, we’d often find a procedure that was actually being used. That may be what happened with the JPRA document–but since it may have been the basis for the July 26 verbal okay, it would be hard to argue it didn’t get legal sanction.

  2. lllphd says:

    ew, what a great catch. i’ve wondered how all those guys on the front line, so to speak, could have actually seen these slice&dice detailed memos, and how getting them and their angelsontheheadofapin details out to those frontline guys would actually go. i mean, think about it; so they revise the parameters, and assuming they decide to dispatch them, who makes that call? to whom are they distributed? under what auspices? we want you to torture but not too much. and here is your legal cover? what would the guys on the frontlines then make of such things? kinda hard to get the head around that scenario. and it increasingly begs for the lion’s share of the dirty work going to the mercenaries who were not likely trained in the fine art of such nuances as geneva conventions or human rights. nor could they give a damn.

    like everything else in that godforsaken administration, not even their hindsight was 20-20; that too remains blind as a bat.

  3. rincewind says:

    If there were no written “official” legal opinions given by OLC, then maybe an argument could be made that a verbal okay on the JPRA doc had some legal standing. But doesn’t the very fact that OLC DID issue the opinions — that don’t cover what JPRA covered — negate or supercede a verbal okay to a non-OLC doc?

  4. SaltinWound says:

    Up until now, I thought the opinions were demanded to protect the people following orders. This makes me think they were used to protect the people giving orders.

  5. orionATL says:

    climbing a ladder of investigation.

    let’s see,

    if you are a prosecutor investigating potentially illegal american torture*,

    there are at least three categories of americans you would want to interview

    – the american torturers themselves, cia or dod employees or maybe contractors,

    – the folks who trained the american torturers how to torture, psychologists and psychiatrists maybe,


    – the folks who were the american torturers’ immediate supervisors, those who authorized the torturers to torture specific individuals using specific techniques.

    as ew’s post notes, one would not expect that your workaday american torturer would have read the legal cover for his/her actions. even if he/she did read them, he/she would not know how to interpret them.


    so, any investigation must at least reach to the level of immediate supervisor to learn what that supervisor had told the his torturer cadre


    how that supervisor came to the conclusion that what he was authorizing was legal, i.e., did he read the lawyerly documents and reach his own conclusions or

    had he, in turn, been told by someone above him what was “legal”.

    this in turn, would involve a still higher level of officialdom, closer to the legal muckty-mucks who may (or may not) have properly authorized american torture.

    it should not take more than five or six levels to go from the american tortures themselves, with their handcuffs and sheets and thermostats and stereo amplifiers, all the way up to the top of cia/doj.

    of course, a prosecutor would have to want to get to that top rung in order to keep climbing.

    *torture is illegal in the u.s., but of course an officer of the court can’t say the obvious, particularly in a legal investigation, otherwise she’d be accused of being biased, don’t you know.

    not to mention being labeled a risk to national security.

  6. fatster says:

    His father’s letters to his wife while he was in Nuremberg were assembled by Senator Dodd into the book, “Letters from Nuremberg”. The Aug 21, 1945, letter refers to an after-dinner discussion in Nuremberg between Thomas Dodd, Col. Brundage, Lt. Col. Corley and regiment chaplain, (Captain) Father Flynn. Thomas Dodd summaries the discussion (p. 101):

    “These soldiers are all troubled about prosecuting [Field Marshal[ Keitel and [General] Jodl. And well they may worry, for professional soldiers have never been considered as liable for war crimes prosecutions–and if such a precedent is established here, the Army and Navy people are in a new and difficult position.”

    In light of more recent, Yoovian sribblings, I guess we could label the quote as “quaint.”

  7. freepatriot says:

    well, here’s the thing

    The Geneva conventions are mirrored in the United States Code, Title 18

    the bybee memos, not so much

    according to the constitution, all legislative powers are vested in CONGRESS, not john bybee

    so when you have a dispute between a law passed by congress, and an opinion written by john bybee, well, bybee can KISS MY ASS

    we’re talking about CLEAR VIOLATIONS OF TITLE 18 OF THE US CODE

    now, maybe one of you legal beagles can splain to me where in the constitution it says ANYTHING about john bybee

    another term I understand is “CONSPIRICY”

    John bybee’s memos might fit under the constitution within the clause of Title 18 that deals with conspiracy. But that ain’t good for bybee

    the only way bybee’s memos fit under the constitution and laws of The United States is in a criminal complaint to obstruct justice and violate several sections of Title 18 of the US Code

    I’m not a lawyer, but even I could prove that much, in a court of law, in front of a jury, using materials that are all ready in the public domain

    so why are we having this conversation …

    • BoxTurtle says:

      IMO, if Yoo (among others) were charged with abetting torture there is more than enough evidence already public to convict him.

      However, since the people in charge of prosecutions don’t want to prosecute and there’s no real way to make them other than public opinion, it’s a moot point.

      Boxturtle (Hail the Almighty Obama Agenda!!!!!)

    • bobash says:

      I’m not a lawyer either, though I have full respect for the rule of law. I’ve felt for some time, and absolutely after reading Jane Mayer’s The Dark Side, that if our legal code on torture and conspiracy means anything, as interpreted by a reasonable man on the street, then there is enough factual knowledge in the public domain to put away the gang of six (Gonzales, Yoo, Feith, Haynes, Bybee, and Addington), and at least Cheney and probably the other NSC principals as well. I’m frustrated that the legal eagles in the country have not spelled out the details in the form of a brief that a reasonable man on the street, uninformed but open-minded, could read without any legal training and conclude that it’s a travesty for prosecutions to not be underway by now. The folks here at EW have done a great job toward this end, but a daily blog is not the medium that is going to do it. Mayer’s book didn’t do it. Alex Gibney’s Taxi to the Dark Side documentary movie didn’t do it. I’m not sure what will. But if anyone knows of such an attempt at a concise brief, not literally for the courts but for laypersons, I’d be interested in seeing it.

      • BoxTurtle says:

        Oh, it’s been explained. But the dabate has been shifted from “Torture is wrong” or “It’s okay if it works and anyway these were scary brown Moslems”.

        Sad story: I was at my favorite Mexican eatery and I chanced to strike up a conversation with the lady in the next booth, while she watched her grandchildern compete to see who could eat their tacos fastest. Actual quote from her “We should be torturing those folks on live TV. Teach ‘em that hitting America is PAINFUL”.

        I doubt she’s the only one with that attitude. I sometimes worry that a good defense atty would be able to find twelve folks that thought the same.

        Boxturtle (Judges hate jury nullification. But it happens)

  8. fatster says:

    O/T. What’s that wonderful skdadl exclamation? Bricklefritz, is it? It does apply here.

    Taxpayers face heavy losses on auto bailout
    Taxpayers likely to face significant losses on $81 billion auto bailout, watchdog report says
AP News
    Sep 09, 2009 05:41 EST

    “Taxpayers face losses on a significant portion of the $81 billion in government aid provided to the auto industry, an oversight panel said in a report to be released Wednesday.”

    Elizabeth Warren is quoted, so you know it’s legit.

    • BoxTurtle says:

      There was never much doubt we were going to take a hit. The only question was how large. If it saves one of GM or Chrysler, it will be worth it.

      Boxturtle (Thinks Chrysler has been runnin’ on funny money for over a year)

  9. rincewind says:

    ISTM there are 3 groups involved here, with varying degrees of knowledge:

    the group getting the orders, who may be able to claim ignorance of the OLC memos (leaving them reliant on the verbal approval of JPRA/Nuremberg)

    the group that knew about the OLC memos who can claim any kind of “plausible deniability” of what was actually happening in the field and on what basis those orders were given/followed

    the group that knew about both

    It’s the guys in the middle — at the intersection of practical and theoretical — who are well and truly hosed, without even a fig leaf to cover their asses.

  10. Rayne says:

    rincewind (7) — yeah, I think so.

    EW (8) — So let’s ask ourselves another question, since there appears to be a procedure in place as there was a consistency of action across different entities’ efforts. What’s the chances one of these lightly circulated dox was circulated inside an SAP as part of the SAP’s documentation? No firm answer expected, purely rhetorical.


      That is feasible.

      If there are relevant sub-compartments, you can have memorandums with this compartmentalization move sideways, but not up or out.

      So, yes, there could have been specific guidance beyond what has been released in the FOIA request that is still compartmentalized (and thus classified and not released – yet).

      Everything released (and leaked) so far is only broad guidance, internal communications and policy documents at the TS/SCI level. A select few documents are redacted copies of terminated compartmentalized programs.

      Not only could they still exist in other forms, you only have the policy and planning guidance. Not any of the sub-compartments documentation. The deck logs of a ship in the Pacific would be more specific and detailed than what is briefed to the Joint Chiefs or the Pentagon.

      You are at the Pentagon level. What you seek, is the Sailor that wrote that deck log, and what he said. Excuse the metaphor, but it does work and is applicable here.

      Plain English? You ain’t seen nothin’ yet.

  11. rincewind says:

    But it also seems to me that it matters (maybe a very great deal) whether Obama/Holder have specifically drawn the non-prosecution line in the sand at “reliance on the OLC memos” or if their line is actually “reliance on a legal opinion (however issued)”. I know they both have said “OLC memos”, but is there wiggle room?

    • Rayne says:

      I think the wiggle room is that if nobody at the bottom end of the food chain actually saw the OLC memos, can’t attest to what they authorized, then they aren’t actually relying on them but on orders. So they are flipped on the persons who gave the orders, and the people who gave the orders will be forced to prove they actually saw and read and then relied upon opinions BEFORE they gave the orders.

      [edit: I see WO finished and published his comment at (26) while I was typing mine — I think the additional crux to add to his comment is timing. Did they have opinions and memos before or after they gave orders to proceed?]

  12. oldtree says:

    We come closer to the conclusion that the “interrogators” (being overly polite for a moment as to job description) were given an open ended order from above to get information. We can nearly confirm that laws were not considered until they were re-written to cover past acts, when the EXU ordered their own legaleaser’s to create justification for the torture they ordered. We can conclude direct involvement due to written documents, statements, and testimony. We know that under the circumstances of these actions, there was no war, no threat, and no reason to violate the law or constitution.
    We must then conclude that there is evidence of the violation of law by our EXU. We must also conclude that as a result of statements made, documents and testimony, that they were also aware they were in violation of these laws. We must conclude that the continued obstruction of justice is an effort to hide these crimes. We must conclude that there is reason to investigate that the crimes have gone beyond torture and murder, and include crimes against humanity and war crimes.
    The evidence is apparently in the hands of the government now. What will they do with it?

    • DWBartoo says:

      “The evidence is apparently in the hands of the government now. What will they do with it?”

      Well, let’s see …

      They could deny everything …

      Or simply claim that to release this information would destroy America (if you don’t know how, and agree, then you have no business asking any questions of your betters) and declare it secret.

      What other options, realistically, given America’s exceptional “reality”, does OUR (choke, gag, wheeze) gummint, a gummint ‘of’, ‘by’, and ‘for’ the ‘people’, let me remind you, including, especially, ‘corporate persons’ really have?

      Do we really want our (c,g,w) gummint to be honest, oldtree? (As if our opinions, thoughts or even our very lives matter to the Powers That Be)

      Who would benefit from that?

  13. WilliamOckham says:

    I think there is a real question as to how much Mitchell and Jessen knew (all of it or just most of it), but most of the folks involved in the detention program got their information from OGC. The IG Report says (para 9):

    [Long Redaction] From the beginning, OGC briefed DO officers assigned to these [redacted] facilities on their legal authorities, and Agency personnel staffing these facilities documented interrogations and the conditions of detainees in cables.

    Btw, the redaction between “these” and “facilities” is very short. I’m willing to bet that it is the word “six”. Nothing else that fits makes much sense.

    If you think about that sentence a bit, you can come to some reasonable inferences. The people in the biggest trouble are those who helped draft the memos, briefed the field officers, AND saw the cables in real-time. They had a duty to stop the interrogations when it was clear they were exceeding the limits (such that they were) of the OLC memos. Next in line for legal trouble are the CTC managers who were read into the program, had read the memos, and were engaged in the back and forth on applying the torture to specific individuals. They authorized the use of techniques that were clearly illegal. The exposure of the implementers of the policy will likely be affected by what exactly the OGC told them.

  14. earlofhuntingdon says:

    The aroma of Cheney-the-master-bureaucrat lingers heavily. Keeping these poorly written, unreliable opinions hidden achieved several things.

    It kept hidden what Cheney intended to do and kept hidden how radical it was. It kept the opinions themselves away from the prying eyes of capable lawyers: even ideologically conservative fellow travelers overruled them in a heartbeat once they saw them in detail.

    Most importantly, it kept torturers and their bosses working in the shadow of what Cheney claimed the law to be, well away from the glaring light of what the law in fact was. That kept opposition to a low level because of the institutional framework these actors worked within.

    Would be law abiding officials couldn’t debate these opinions or seek to overturn them directly, which extended their useful lives. Law abiding officials could only claim that orders to torture were illegal – and that obeying them would be a crime – notwithstanding legal opinions from the DoJ to the contrary.

    Taking that position is a direct challenge to the chain of command, a high-stakes game of virtue versus mutiny. If someone’s challenge succeeded, it doesn’t mean someone else’s would. Even then, it would take years, by which time the offender, the not-a-team-player, the insubordinate troublemaker who refused to follow orders would have been forcibly removed from their job, security clearance, career and possibly their pension and benefits.

    Those are stakes all but the most courageous find daunting. Look at how easily and for how long Scott Ritter and Valerie Plame were cast aside and the resources they had to fall back on to survive afterwards. That left would be law abiding lawyers, law enforcement people, spies and elite service members twisting in the wind. Many made the right decision, at great cost to themselves, and opposed these orders or resigned their posts. Predictably, many did not, enabling Cheney to make torture official government policy. But it’s the MSM that allowed it to become decent enough to dine with in polite Village society.

    • TheraP says:

      Even then, it would take years, by which time the offender, the not-a-team-player, the insubordinate troublemaker who refused to follow orders would have been forcibly removed from their job, security clearance, career and possibly their pension and benefits.

      One outlier for sure: the young Mormon woman who “committed suicide” after voicing her deep reluctance to take part – and that she couldn’t compartmentalize herself as they were urging her to do.

      Wonderful thread! Even if it’s only this group and others like it having these discussions, on some cosmic level it’s doing good. I can’t point to any proof of that. But better these thoughtful discussions, however full of anguish for all of us, than a deafening silence. I can’t ever express how much this matters to me. It matters. Even the impotence we feel here – it factors hugely into what’s gone on, that: SOME. DO. CARE.

  15. earlofhuntingdon says:

    Something else is at work here, too: Cheney’s usurpation of authority. Opponents to policy face a steep hill at the best of time. Being successful requires knowing and being able to manipulate official and unwritten rules, working through the grapevine of one’s network as well as nominally through official channels.

    That’s the first thing Cheney sought to unseat when he returned to Washington. He did it in order to install his own network across the federal bureaucracy, moles some of whom are still burrowing. And he did it in order to shut down opposition to his will, including, startlingly, his ruling in Bush’s stead.

  16. al75 says:

    There’s a very fine review of Gen Richard Meyer’s evasive memoir in the current NYRB foccussing on Meyer’s non-discussion of torture by the US military: “The complicit General” by Phillip Sands

    The torture of Mohammed al-Qahtani was a defining moment in American military history. For that reason, Myers should have addressed his involvement in it. His memoir gives no hint why this decent family man would have rolled over on this issue when confronted by the desires of his political masters. What we know of his earlier career—Air Force training school, distinguished duty in Vietnam, fighter training school, commander of US forces in Japan—points to a man imbued with the best values of the US military.

    Perhaps his Air Force background implied a greater distance from the Geneva Conventions, although he recognized the real possibility he could have been tortured in Vietnam. Perhaps another fight distracted him: as chairman he successfully resisted efforts by Rumsfeld and Haynes to deprive the military of its independent advisory functions. Perhaps he genuinely believed that the newly approved interrogation techniques were justifiable and did not cross any lines.

    Whatever the reason, the silence of Myers and others indicates the uncomfortable truth that the full circumstances in which the CIA and then the US military adopted interrogation strategies amounting to torture remains to be explained. Under the 1984 Convention Against Torture, to which the US is a party, torture and complicity in torture are international crimes that must be investigated.

    President Obama’s administration does not have the luxury of being able to look the other way. His attorney general, Eric Holder, seems to recognize that, and he has just appointed a prosecutor to address these issues. To do nothing is to cover up the crime. Silence is complicity.

    The whole article is worth reading.

  17. Mary says:

    This is all touching on how the reliance opinions weren’t reliance opinions. I’ve mentioned this before, but the media has allowed tremendous snookering when it comes to the use of the “good faith” phrase. It’s why I’ve tried to mention now and then the ACTUAL standards for good faith and how they just don’t apply. They didn’t apply at all for the telecoms either, though, and look at what happened there. The OLC is specifically not allowed to give opinions for the benefit of third parties and contractors and yet somehow everyone chattered on about the telecoms relying in “good faith” on opinions that would never have passed the legal standards for reliance opinions, not just because they were bad, but also because the telecoms were not a party who could claim reliance under them.

    And this is the inanity of the Holder position about not “going after” people who were acting “in good faith” and were “within” the bounds if the opinions. He’s creating a “good faith” argument that doesn’t exist, legally, and can’t ever be used to create a prosecutorial distinction that would make sense to courts or to a jury when a judge gives a valid jury instruction – so he’s deliberately creating a layer of chaos to make things even more difficult.

    So on a “good faith” argument that is based on reliance on counsel, here are some of the many issues –
    1)Opinion(s) was/were not solicited before the activities took place
    2) Opinion(s) was/were not based on full disclosure of all facts
    3) Opinion(s) deliberately segregated out relevant, known facts and did not incorporate or address them and used artificial constructs to avoid those facts
    4) Opinion(s) were addressed only to certain persons (generally lawyers or only a lawyer, primarily Rizzo) and no reliance group was specified nor was the memorandum directed to the agency in its institutional status
    5) Opinion(s) were not published and delivered to users (I’ve said for a long time that there was no way they were likely to be circulating those copies of those opinions around and that Rizzo, Muller, Ashcroft and the NSC Principals almost have to be the channels for communicating this stuff – Rizzo in particular.
    6) Opinion(s) were not from an unbiased source
    7) Opinions were facially invalid to anyone (such as many former military) who had actual knowledge of matters such as torture or war crimes prosecutions for actions like those being authorized
    Opinions were facially not within the competence of the lawyers to address.

    With respect to 8, this is one of the big gaps in the opinions. Let’s say that someone wants to sell a painting as an original Matisse, but they think it probably isn’t one and they have no proof it is one. They think they can get big bucks if they certify it is an original though. They go to a lawyer and say, “if I tell you that this is an original, then will you tell me that I can certify it as an original?” and the lawyer says, “sure.” Issues an opinion that says, “You have told me that the painting is an original Matisse – based on that, you may certify the painting as an original Matisse to a purchaser without committing criminal fraud. This opinion is based on all relevant facts you have given me being true (i.e., that the painting is an original Matisse)” [To make it more like the OLC opinions, let’s also toss in “This opinion also relies on the fact that no US court ever takes jurisdiction of any case brought in connection with your sale]

    Buyer buys, expert examines, painting is false, Buyer goes to prosecutor bc there is a law that says giving a false certificate of originality is a criminal act. Prosecutor says, well, it’s a defense against that statute if the seller in good faith believed that the certification was correct. Seller say – golly, that’s me, lookee at my legal opinion, see, I relied on my lawyer that I could give the certification.

    Well – that doesn’t work. The lawyer can’t tell them that they can certify the picture as an original based on the client telling the lawyer that it is original (when it is not) and then the client who lied to the lawyer (who issued a non-opinion) gets to rely on the legal opinion as evidence of “good faith” that the painting wasn’t a fake.

    In this case, client goes to OLC and says – I’m going to physically assault people, tell me if what I’m going to do is against the torture statute, but let’s forget the preliminaries, and lets separate out conditions of confinement (and drop the disappearance issues out of that when we do get around to it, and also drop out the torture interrogations aspect of the confinement, etc.) and let’s slice and dice to get just a small bit of what I am doing and you tell me if that small bit, which I am going to misdescribe, is torture. Lawyers say – sure, ok, but you know, we’re not experts on Matisse the physical and psychological effects of your assaults, even when we segregate out the preliminaries and the conditions of confinement and even when we use misdescribed facts, so what we need is for you to tell US that it isn’t torture first, ‘kay? Client says – oh, sure, right, just so happens I have employees and contractors who are doctors and psyhcologists. So, if I get them to tell you that what I am describing isn’t torture, then you’ll give me an opinion that says it isn’t torture? Lawyers smile and nod.

    So CIA says, “I’m going to do a and b and c and I say (my employee docs and psychs) say it won’t be torture (won’t cause “severe” and “lasting” physical and mental damage).” Lawyers – Well, based on you telling me all kinds of facts I’m going to list and pretend are relevant (like the high operational valued of the detainees) even though I never discuss why they would be relevant or apply them to any case law; and based on you telliing me that you have already decided that what you are doing isn’t torture (your employee/agents say that there is no sever or lasting damage, even though there are dead bodies floating around and stuff like that), then based on you telling me that what you are doing isn’t torture (your docs statements) I will tell you that what you are doing isn’t torture. This opinion is based on what you told me (that it isn’t torture) being true and is also based on no US court ever assuming jurisdiction of a case – I won’t discuss why a court getting jurisdiction changes the effectiveness of my opinion, but I am going to say that it does.

    The paintings not the best example, and torture is more like pornography – people recognize it when they see it (hence the need to destroy pictoral evidence) and you may not need an expert for that, but it shows up some of the fallacy. Part of what they were wanting authorization to do could not be made into “good faith” by a lawyer, bc a lawyer wouldn’t be the competent type of expert to rely upon. A lawyer saying that you (your docs) have told him that you aren’t torturing and the lawyer is relying on that in issuing their opinion is NOT going to magically create a “good faith reliance on advice of counsel” defense. And that’s what was done, in a prettied up fashion, over and over in the opinions. The lawyers said – we don’t really know what severe and prolonged physical or mental damage means from a medical aspect but lucky everyone – you, the client, happen to also be a medical expert (your OMS and psych guys) and you can tell us that these things are not causing severe and prolonged physical and mental damage and just because any normal human being would say “yes they do” we don’t have to worry, bc you as your own expert are telling us that it is all ok. Wow – this was ez

    That doesn’t work. Even if the opinions had been well written and had basis and foundation legally, it wouldn’t have worked. There are some segements you can slice and dice where that isn’t exactly what they did, but for most of it, that is exactly what they did. And then when even the death reports and long term physical damage reports came in (and when the “learned helplessness” approach reveals on its face that it needs to create long term mental damage for effectiveness), the lawyers sat there and said, well, oksure, you guys told us that abc wouldn’t happpen and now abc have happened, but nevermind – you are STILL telling us it isn’t torture and so based on YOU still telling US that, we’ll still tell you you’re covered.

    All without any outside torture experts – which is what you’d actually have to have to have a “good faith reliance” defense, bc you need to be relying in good faith on someone competent to give you the information on which you are going to rely. If you are relying on the fact that you are not severely or prolongedly causing mental or physical damage, then you need someone who can tell youabout mental and physical damage. The lawyers are nothing but pretense in that scenario – it’s like getting a lawyer to say there’s a dna match or a fingerprint match – you can’t rely on them for that, you have to have a dna expert or a fingerprint expert.

    So they are conflating a good faith reliance on medical experts (which would not only require unbiased experts, but also would require that these medical guys go on public record with their advice as to what was ok and why and make that a forever record in a US court of what is acceptable Executive branch behaviour vis a vis everyone – not alQaeda terrorists but everyone, bc they aren’t saying it is ok to torture alQaeda but rather that they were not torturing) which they don’t have and don’t want to publically create – with a good faith reliance on counsel, which they can gin up through OLC but which caveats out that very things they are wanting to rely upon (a – if you lied to us about it being torture, since we are relying on your medical guys, and b – if we end up in a US court).

    So Holder has created a completely untenable and unworkable -legally – construct to say that guys who operated within the opinions are ok, but guys who didn’t aren’t – especially as each new memo opened up a wider and wider window because in essence the underlying basis for the opinion was always – your medical guys say it isn’t torture, so our legal guys will shut their eyes to anything else and caveat it out and issue you a “clean” opinion for a reality we admit only exists out side a courtroom and in a world where only your own self serving docs and statements frame the reality.
    /relatively incoherent ramble

    • TheraP says:

      As usual, Mary, you nailed it!

      May I just add, to make it really simple, that if you treated an animal the way they treated humans – and suppose you even admitted on TV that it “wasn’t torture” but it was happening on your watch (and besides you had these legal opinions)… well, gosh… many Americans would want to tear the malefactors limb from limb! (Maybe even torture them on TV to prove that you can’t do that to even animals suspected of crimes.)

      It’s like theater of the absurd. But happening in real time…

    • MaryCh says:

      /relatively incoherent ramble

      Not at all, Mary! To this recovering lawyer it’s refreshing to read your analysis. Especially after the drift of the upthread discussion that conjures a whole range of Bush-crime-family-keeping-its-fingerprints-away-from-the-crime-scene outrages and embarrassments.

      • pdaly says:

        and more Wow’s and Thanks.
        It’s informative and funny (in Mary’s gallows humor way):

        The paintings not the best example, and torture is more like pornography – people recognize it when they see it (hence the need to destroy pictoral evidence)

        Holder seems to think people acted in good faith. Get that list of names out to us and let’s ask them to answer yes or no, that they read a memo.

        Skimpypenguin: how many ships’ logs are we likely to need to read to get our answers?

    • bmaz says:

      And if I am JoeGuidelineexceeder’s defense attorney, the first thing I do is notice up every permutation of justification defense imaginable and issue subpoenas for everybody in this chain for trial (PT discovery too if the court will order it). In my opening, closing and all points in between I am either adducing directly or inferring in evidence and arguing about how none of these others are in the dock – only my poor little client. Doubt it makes it that far though, because the government cannot afford to have their rotting carcass splayed open in a public courtroom on the record like that. This is the problem. This is why you cannot leave the higher ups unindicted; it skates the peons. In this situation, you have to go for the ring or you don’t go..

      • Mary says:

        Oh yeah – the fact that you fail to meet the standards to get a jury instruction on good faith reliance or to get and SJ based on it doesn’t mean that you won’t be selling hard on that “only my client.” Remember in the Libby trial that even though they convicted, the jury was at a loss over Armitage and Rove and Cheney and why it was only Libby in the dock.

        Anyway – not apropos to anything in particular, but since it kind of fits here in this thread I’ll toss something else in to muck things.

        If the OPR were to actually do what they should and not what they can get by with, in their examination of the opinions (which unfortunately doesn’t go to an examination of all the legal proceedings where DOJ fibbed to courts and Congress while OLC was sitting on torture evidence info), if they look at not just things like the really bad legal reasoning and failure to cite and distinguish case law, etc. – and get to the more nitty gritty of what kind of opinion was being requested (a reliance opinion) and what was produced (something that was made to look like a reliance opinion, but isn’t one), then there might be a lot of reason for holding back that OPR report.

        Bc if it doesn’t just say tsk tsk, but also says – the work product produced wasn’t a competent reliance opinion anyway bc of the failure of this, this and this – – – then some folks other than just the lawyers are going to be very interested in not having that released and Holder suddenly has a much more complicated situation when he tries to say that people who acted within the opinions (that OPR says are NOT reliance opinions – if it were to say that)are ok, but those who acted outside of the opinions (that OPR might say are not reliance opinions) are not OK. just a meandering thought.

        • NMvoiceofreason says:

          The work product was worse than that.

          Let’s say a lawyer is involved in representing a gang of bank robbers. The bank robbers want to hold up the Taxpayer Savings and Loan at 4 pm. Attorney agrees to drive the car, and be there no later than 4:02 pm. He writes a legal opinion saying than borrowing money from a bank is OK, and that the intent to repay is the important part. So he helps his clients get away with it, because they can rely on his opinion, right?

          Wrong. First of all, you cannot issue a reliance opinion IF YOU HAVE TAKEN AN ACT IN FURTHERANCE OF A CRIMINAL CONSPIRACY. There is an entire “clean hands” doctrine that – poof – just like pixie dust and executive orders – causes the opinion to disappear. You cannot rely on the opinion of a co-conspirator, especially when the whole purpose of the opinion is to help keep all of you from being caught.

          Second, the opinion doesn’t address the use of force, just like Yoo opinions don’t address the total inability of the Executive branch to rewrite the Constitution, Treaties, and Laws of the United States. Its “ultra vires”. They don’t have the power to declare what the law is – in cases where the Congress or the Courts have already spoken. This is the narrow exception they tried to drive a truck through – that OLC opinions are given any force whatsoever, ONLY WHEN guiding the government in an area of law that has no clear statutes or precedent. If otherwise, it is nothing more than dots on paper. You can’t take money from a bank by force, its a crime. You cant waterboard, its a crime, and has been for over a hundred years.

          • TheraP says:

            You cannot rely on the opinion of a co-conspirator

            Another indictment of the so-called psych evals, which were used to buttress the legal contortions.

            Pretty soon this coffin will have more nails than places to put them!

            This all smells to high heaven. It reminds me of the poem that starts: How do I love you? Let me count the ways… Except this is a conspiracy to torture humans and to subvert the law etc. And we’re teasing out and counting all the ways. I’m not sure what the question is, but something like: How did they betrayed us? Let me count the ways!

          • Rayne says:

            OMG. That’s so straightforward, so obvious to the point that we missed it — literally a forest for the trees thing.

            Any effort to create an opinion to justify what has already been deemed criminal by statute and treaty and precedent is conspiracy.

            Skimpy, you better tell the peeps to find their outlet of choice and organize their documentation, because they’ve been used like toilet paper and there’s no cover.

      • rmadelson says:

        “Doubt it makes it that far though, because the government cannot afford to have their rotting carcass splayed open in a public courtroom on the record like that. This is the problem. This is why you cannot leave the higher ups unindicted; it skates the peons. In this situation, you have to go for the ring or you don’t go..”

        And, as the Bush and Obama administrations have made clear, this is the bottom line. They don’t want to give away their secrets (emabarrassments) in civil cases and they probably won’t permit discovery of “state secrets” in a criminal case either. It would “rock the world” if we found out what was done — as if we didn’t already know. They just won’t let it be proven on the record.

    • rmadelson says:

      I’m terrified of posting here again because y’all are so knowledgeable and sharp (in more ways than one) and I really showed my ass the last time, but here goes:

      Mary wrote at 35:

      “And this is the inanity of the Holder position about not “going after” people who were acting “in good faith” and were “within” the bounds if the opinions. He’s creating a “good faith” argument that doesn’t exist, legally, and can’t ever be used to create a prosecutorial distinction that would make sense to courts or to a jury when a judge gives a valid jury instruction – so he’s deliberately creating a layer of chaos to make things even more difficult.”

      This is something I’ve been struggling with in my mind again and again for the last few weeks. Purely as a matter of litigation practice, I don’t understand how DOJ can pull this off. If Holder will only prosecute torturers who exceeded the “guidelines” in the torture memos, how will this work in litigation?

      Say an indictment actually gets drafted charging folks with, for the sake of discussion, waterboarding too many times or using too much water – stuff that may exceed the parameters of the torture memos. I assume that inevitably, and despite the fact that by the point of an indictment Holder has already vetted out cases where his version of a good faith reliance on counsel defense purportedly exists, I imagine you’re still going to have defense attorneys asserting the defense anyway.

      Some of these cases may present some factual jury questions as to the validity of the defense – maybe more so under Holder’s good faith reliance on counsel than the one that really exists in the law – and in those cases are you going to have a defense attorney arguing for a jury charge on Holder’s version of the defense – which doesn’t exist in case law. What kind of jury charge is DOJ going to argue for? Holder’s version? The real version? Sure, if I was defending the torturer I’d be happy to stipulate to a defense broader in scope than the law actually provides but how can a prosecutor pull that off?

      In my experience, judges are difficult to persuade on jury instructions that aren’t in the pattern jury instructions books. Sure, there are always lots of issues that aren’t in those books so you argue case law, but what if your defense only exists in the realm of politics? If the prosecutor argues for the defense as it really exists does the defense attorney then raise an equal protection argument? Can you really have one defense imposed by politics to screen out some torturers an another defense for others. Are they then litigating how similarly situated the folks are who didn’t get prosecuted from those who did? Does that open the whole prosecution process up to litigation?

      I don’t know, maybe this will shake out with a little more clarity as it happens (huge IF – hell, it probably won’t happen at all) but I’m having a difficult time figuring out how it would or could work. The problem is that you’ve got an arbitrary “political defense” which doesn’t exist in the law layered over a real defense.

      Along with the political issues which shouldn’t carry any weight but are currently forcing us to look forward not backward, these are some of the reasons why I don’t think anyone will get prosecuted.

      As, TheraP wrote at 39, this is just so important to me, in spite of my well justified pessimism. I sure hope SKIMPYPENGUIN’s predictions turn out right.

      And thanks for the work all of you do. Very much appreciated.

      • bmaz says:

        You have hit the problem square on the head. And keep in mind there is easily going to be enough for the defense to get a justification instruction, probably multiple instructions, and at that point the burden of disproving them beyond a reasonable doubt is incumbent on the government. I just do not see how they can overcome this. And that is assuming they are willing to have everything splayed out like I mentioned in @49 above. And I do not think Federal trial judges are going to be giving much benefit of the doubt on anything to the DOJ at this point either. And we are just scratching the surface here; it is hard to see where the light is for the government.

      • Mary says:

        LOL – I’m one of those fake retractable blades *g* so you don’t need to be terrified of me. I don’t practice “real law” much for a few years now and when I did, I didn’t do much litigation and none of it was criminal litigation, so I defer to bmaz and the crim def commenters, but I did work in a biggish firm and on the periphery of a lot of fed litigation.

        But even though we are coming at it from different perspectives and backgrounds, I am exactly with you on this one. I just don’t see how it works from a litigation standpoint (and bmaz sees so many other litigation pitfalls from the approach that are even worse that he can’t hardly get past the mind explosion over what happens when you try to prosecute ONLY lower level guys to even get to the next stop on that train – how do you gin up this weird “good faith” approach when it won’t fit in any model instructions or any kind of case law pull that I can begin to think of that could be offered up to a judge.

        and in those cases are you going to have a defense attorney arguing for a jury charge on Holder’s version of the defense – which doesn’t exist in case law. What kind of jury charge is DOJ going to argue for? Holder’s version? The real version?

        The problem is that you’ve got an arbitrary “political defense” which doesn’t exist in the law layered over a real defense

        You’ve said it much more nicely there than I did, and I esp like that last part I bolded. It is kind of like trying to build with spaghetti, isn’t it?

        Then add on the things that just aren’t in the memos, period. Are the guys who, say, waterboarded more times or worse than described – are they now also fair game for their roles in kidnapping, annally assaulting, drugging and disappearing? Threatening families? If so, then are guys who only waterboarded the “right way” or only participated in the disappearances and drugging on board for prosecution for those things too – but then no one can mention the things they did that were ok’d? How do you do that too? How do you describe the torture in litigation if you are limited to describing only some of what was done and not the entirety? How do you …

        It’s just an overwhelming list, everytime I start on any of it I start rambling and going off on all kinds of sidepaths.

  18. tjbs says:

    The reported 108 or SO who died during questioning over how long ? Three years?
    Are we to assume they all died in the first week? On average, though there is no average murder, that’s a death every ten days for three years.
    So if I’m this cheney clown , along with his gang of thugs, don’t they worry about being an accessory to MURDER rather than a little torture prosecution?

  19. bobschacht says:

    Wow, Mary, just wow. I know you’ve covered the ground on this before, but thanks for the repeat.

    Do you think Holder & Co. realize that this dog won’t hunt? What’s their game here?

    Bob in AZ

    • Mary says:

      I realize now that my 8 doesn’t even have an 8 infront of it – darn -trying to get the comment up before my farrier needed me to hold horses. The “incompetent to give” should have been the 8.

      Heck if I know what Holder is trying to do or if they have thought things out (I really don’t think so) or if they are just trying to run around putting out the closest flames first and not really spending much time thinking about the fire. Nothing has made sense from a legal standpoint for a long time now.

      @39 – and Ted Westhusing.

  20. rincewind says:

    I went looking for official statements from Holder/DOJ about EXACTLY where he’s drawing the line, and it still feels wiggly.

    DOJ press release accompanying release of OLC memos (Apr 16):

    Holder also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.


    “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” Holder said.

    Statement by DOJ spokesman (Jul 12):

    “As the attorney general has stated on numerous occasions, the Department of Justice will follow the facts and the law with respect to any matter,” spokesman Matthew Miller said. “We have made no decisions on investigations or prosecutions, including whether to appoint a prosecutor to conduct further inquiry. As the attorney general has made clear, it would be unfair to prosecute any official who acted in good faith based on legal guidance from the Justice Department.”

    Holder’s announcement of the “review” and appointing Durham (Aug 24):

    Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.

    I know I’ve heard both Obama and Holder say “OLC memos” specifically, but these official statements don’t seem to me quite that narrow.

    • maryo2 says:

      and within the scope of the legal guidance given by the Office of Legal Counsel

      Looks like Holder did some learning between April and August about just whose advice was being followed.

  21. orionATL says:

    a limited-partial-cya investigation by john dunham might be hampered


    the doj office of legal counsel memos were found not to be “proper” doj documents with whatever levels of reviews and clearances are customary for the doj.

    in other words what if there were no or insufficient properly generated torture-excusing, torturer-protecting memos?

    some time back, ew speculated that maybe john yoo free-lanced the torture memos. perhaps others did too. i seem to recall part of that speculation involved yoo taking orders from the v-p cheney, not att gen ashcroft or his deputies.

    were this the case,

    then a cover-up investigation would become too bald a cover-up would it not?

    if there was no proper doj legal cover for the torturers and their supervisors, then what do you do?

    in any event, i’m not convinced that holder’s torture investigation is intended as a cover-up. it may be, but i can see the way he laid it out at the start as being an effort to deflect attention from the investigation so it was not killed in its infancy.

  22. Basharov says:

    Something else is at work here, too: Cheney’s usurpation of authority.

    Bush gave Fourthbranch the authority. Dick didn’t “usurp” anything. This is the reason why Holder won’t pursue his investigation beyond the lowest grunts. An honest investigation of the torture regime would lead inexorably not just to Cheney, but to Bush — and The Village will not permit him to pay for his criminal behavior. As Broder says of a prosecution of Cheney, the trauma for the American people (by which he means The Village) would be too much to bear.

    • Rayne says:

      Not intended to be confrontational here, but they TOOK the authority, all of them as a team. The authority wasn’t given to Cheney; it was assumed from day one that OVP would be FourthBranch, as evidenced by the Energy Task Force.

      Cheney was the guy who was supposed to do everything the EO wasn’t supposed to do, precisely because the OVP could develop this FourthBranch policy and the EO couldn’t. Elliott Abrams said it was a key learning from Iran/contra, that their black ops had to be run out of OVP — so they knew this and planned it for years. It’d be an even better firewall for the EO than was extended to Reagan by the Iran/contra folks.

      Broder is doing his own assigned gig, too, as senior voice of so-called reason from the Beltway. Unfortunately the old geezer has difficulty understanding that the American people — all of us outside the Beltway — wouldn’t be heartbroken to see Mr. Evil-and-Crotchety-Old-18%-Approval-Rating frogmarched to the pen. If the Republican Party had any smarts (HAH!) they’d use Mr. Evil’s prosecution as a purgative and transformational event, re-brand themselves as a post-Evil party.

      Nah gonna’ happen, but the American public would soldier on in spite of Mr. Evil-and-Crotchety-Old-18%-Approval-Rating getting the heave-ho.

  23. bmaz says:

    From Jeff Kaye in a lengthy, very good new article at Public Record:

    What is clear is that the CIA and the Pentagon had plenty of experimental evidence from the peer-reviewed, published research of Dr. Morgan and his associates (and possibly others), both before and after 9/11, that SERE techniques had serious, debilitating effects on individuals subjected to them. As this research is never cited in any of the Office of Legal Counsel memos issued to the CIA around their torture program, it appears such research was deliberately withheld from government attorneys as the CIA sought approval for the use of SERE-style torture. Nor was this obscure research, but had been funded by the government at a minimum of hundreds of thousands of dollars, and promoted by some of the Pentagon’s highest generals.

    The frenzied search for data on waterboarding, sleep deprivation, isolation, confinement in a small box, etc., to submit to OLC attorneys making legal determinations on whether proposed interrogation techniques constituted torture, was a kabuki organized by the CIA. The OLC attorneys involved — John Yoo, Stephen Bradbury, Jay Bybee, and others — were witting or unwitting partners in suppression of CIA research on torture (as future investigations will disclose). Given the participation of members of the Office of the Vice President, particularly David Addington and Vice President Cheney himself, in the promulgation of the torture program, and the composition of the memos, it seems likely they were also involved in the suppression of this material. As a result, the memos produced authorizing the “enhanced interrogation techniques” were composed as the result of fraud and bad faith, the result of a criminal conspiracy to implement illegal torture techniques.

    • rincewind says:

      (I might be being really stupid today, but…) doesn’t the existence of GOV’T-funded research — precisely on point and in direct contradiction of the OMS/whoever’s statements about the physical/mental adverse effects — put the final nail in the “good faith” steaming pile???

      • bmaz says:

        You would think so. Of course, while you have the current Administration running around still spewing forth that it was all legit, I guess facts are irrelevant.

    • bmaz says:

      No, you are absolutely right, the assertion of good faith here is a steaming pile and this should be a critical, if not final, nail in that coffin. But black is white these days with the DOJ and the American government.

      • MaryCh says:

        The question of knowledge of federal research on the effects of torture sounds like a variation on a theme, and another ‘opportunity’ for the 43-Admin gang to construct another prophylactic elision — facts…opinion…order.

        And even if it doesn’t stand legal scrutinity, its illegality is subject to the same obfuscation/misrepresentation we saw in the LIbby case, even regarding the verdict.

        How do you find and point to a smoking gun in a house of mirrors?

  24. bobschacht says:

    The discussion here in the Wheel House has focused on the CIA. I cannot recall the same degree of coverage being given to parallel processes at DOD. However, the recent review of “Eyes on the Horizon: Serving on the Front Lines of National Security,” by General Richard B. Myers, USAF (Ret.), with Malcolm McConnell, reviewed in the New York Review of Books
    (Volume 56, Number 14 · September 24, 2009,) The Complicit General By Philippe Sands provides an opportunity to do so.

    A good start would be to construct a timeline, incorporating DOD dates into the timelines already developed for the CIA. This previous guideline does include some DOD guidelines, but I’m not clear about whether the DOD dates are intended to be as complete as the CIA dates. Maybe a reformatting might help, with the first column for the date, the second column for CIA communications, and the third column for DOD communications.

    Would that be helpful, or is the existing torture tape timeline comprehensive enough on both fronts?

    Bob in AZ

    • Rayne says:

      Excellent idea, bob — would be good to perhaps employ a tag to delineate content in the timeline where DOD was impacted more heavily than CIA.

      But here’s the challenge: let’s say a contractor with DOD background, clearance is contracted to supply a service to CIA which CIA doesn’t have in house. The contractor is also a DOD and a DOS contractor (you can read between the lines) and performs its obligations at locations under control primarily of DOD. Further, the terms of an SAP under which they work may have been issued by DOD.

      Wouldn’t you say there’s no daylight between CIA and DOD when it comes to this contractor and its deliverables?

      • bobschacht says:

        I was hoping that a timeline involving both would help to identify scenarios like the one you describe. But didn’t Rummy prefer to go alone, and not let CIA people get in the way?

        Bob in AZ

        • Rayne says:

          Um, I think that’s what Rummy would have us believe. He went and implemented the Strategic Support Branch within the DOD to provide intel for the battlefield.

          But if everything related to al Qaeda and the Taliban is labeled the “Global War on Terror,” ostensibly making the entire globe a single battlefield, what can’t the SSB do?

          And what if CIA is a convenient scapegoat for the stuff SSB does, given Cheney’s passionate dislike of CIA? SSB = JSOC, by the way, as well as an alphabet soup of other organizations.

          [edit: forgot to add that covert ops by CIA require Congressional approval — but similar ops run as SAPs inside DOD don’t require oversight, again because they are seen as related to the conduct of war. Nifty little feature, eh?]

          • SKIMPYPENGUIN says:

            You said it better than I can.

            Here’s a nugget for you. DIA’s SSB? Founded by the Colonel who ran ABLE DANGER.

            Yes, that one.

            • Rayne says:

              Oh jeebus. You mean they just opened shop in new digs?

              It so figures.

              [edit: Correct me if I’m wrong, but I show AB terminating in Feb 2001, and SSB launching in Oct 2001.]

  25. alinaustex says:

    [email protected] ,
    Thank you for being here and contributing to our discussion.
    You said awhile back that we should give Dubya a pass – well maybe -but he is going to have to give up Cheney first -and his evil mini-Me daughter as well. And also the Bushies have to promise that JEB does not run for higher office -ever never …..

    • Rayne says:

      I have to believe if the scalp is from a fairly high figure, the international “debt” may be satisfied. al Qaeda would certainly have difficulty using the cruelty of the last administration for recruiting purposes if the administration’s upper echelons suffer the stress of outing and prosecution.

      JEB can’t run. Too many ghosts in the closet, worse than GWB’s.

      But Lizzie is a threat, and a very ugly one; if she’s complicit as I think she may be in the hiding of al-Libi along with his transport to Libya, she could be a very nasty recruiting aid. She needs to be prevented from seeking office for this reason alone, not even getting into her questionable ability to be an ethical leader.

      We need more material to effect these goals, though.

  26. SKIMPYPENGUIN says:…..ickers.pdf

    A must-read. Explains a lot.
    The author has been (and still is, under President Obama) the Undersecretary of Defense for Special Operations, Low Intensity Conflict and Independent Capabilities.

    Once you absorb the document I posted above, you will understand why the CIA investigation by DOJ is not only misdirection, but a strategic coup for the Pentagon. And perhaps, most importantly, Cheney, Addington, Liz and others.

      • SKIMPYPENGUIN says:

        Mike Vickers is a busy man.

        You’ve seen him, and you didn’t even know it. There’s a movie about him. It’s called “Charlie Wilson’s War”.
        The geeky, CIA case officer and weapons expert? One and the same.

        Now he’s the Undersecretary of Defense for Special Operations. A good fit? You tell me…

        • Rayne says:

          So if they leave/get fired, we can hire them.

          Will have to look through the EPLS and see if we have any names pop up…

          Funny, just found out today that KBR had no entries on the EPLS. Bet we won’t find any from the firms you cited.

          RE: budget — I see a number of 10.9B for 2007 for POM 08-13. Let me know if you run across anything different, thanks.

          [edit: never mind about the black and white, I got it.]

    • Rayne says:

      Okay, need help with the alphabet soup.

      If SOF = Special Operations Forces,

      “Black and White SOF” = ??

      [edit: A good fit? crap, the man is a key and early part of the arming of the Taliban and the nascent al Qaeda movement to begin with, and we’re asking him to take them out now? words fail me.]

      • SKIMPYPENGUIN says:

        “Black SOF” = special mission units in DoD that are classified. The unit and its budget are classified. Usually, they are under JSOC. Others would report to the Undersecretary of Defense for Intelligence. If it’s an interagency task force (CIA/DIA/JSOC/NGA) they report directly to a principal in the National Security Council. The actual name of the unit is compartmentalized, but they have unclassified cover names. Usually something that sounds boring.

        Combat Applications Group
        Naval Special Warfare Development Group
        Intelligence Support Activity

        “White SOF” = the special operations commands we’re all familiar with. These are all under SOCOM (Special Operations Command)

        75th Ranger Battalion
        Army Special Forces battalions
        SEAL squadrons
        Air Force drones, planes and helicopters
        MARSOC (Marine Special Operations Command) battalions

        I should note that most security contractors are alumni of 75th Rangers, SEALs and CAG. As are most CIA paramilitaries (if they want CIA to take them seriously).

        • Rayne says:

          So if EIT had been a compartmentalized and covert program using SOF personnel, it’d have been a JSOC-only to avoid the question of NSC principal responsibility and authority.

          But JSOC could recruit the necessary SOF direct from civvies — like Mitchell-Jessen.

          And they’d call it something like Intelligence Support Activity.

          BTW, I see from that U.S. News article I linked there’s already a discrepancy on the dollars budgeted. BIG discrepancy. Must have some $$ added in a supplemental, I’m guessing, sometime between June and Sep 2006. Definitely subject to further auditing.

          • SKIMPYPENGUIN says:

            – My personal thoughts are that it was the opposite. I believe the classified, compartmentalized inter-agency task force was using both EITs and unauthorized methods, and they reported directly to the Deputy Assistant National Security Adviser to the President for Combating Terrorism, which was then Richard Clarke’s job. Now, under President Obama, that is John Brennan’s job. That theory works on the assumption they would not want JSOC in charge of it administratively, because JSOC (in practice) reports to SOCOM, and SOCOM to the Pentagon. Military officers may have objected, and all their staffs would know and have to be read in. Keeping it run out of the National Security Council tightens the circle, which was always Addington and Cheney’s intention. The inter-agency task forces were only known to the directors (SECDEF, CIA, DIA, JSOC) and not the common folk. That was the point.

            – Mitchell-Jessen were a bunch of loser shrinks, one of whom was prior Air Force. They had working relationships with people in high places and created a corporation from scratch so they could get government contracts. CIA contracted them, not JSOC. The work they did was for a different inter-agency task force that is still active and is also compartmentalized. General McCrystal was its commander until he transferred to Afghanistan.

            – Intelligence Support Activity was the last unclassified name before it was realigned and taken from the Army. It is no longer called that. It’s now under JSOC. I know exactly what it’s called, but it’s an active compartmentalized program so I can’t share that here.

            • Rayne says:

              Maybe the reason we came to different conclusions about the TF was in regard to oversight.

              If CIA does covert, it’s subject to Congressional oversight. Which begs the question, did the Gang of Eight (or any fractional subset) really get briefed? There’s a lot of pussyfooting and smoke here, so it’s hard to tell.

              If DOD does covert, it’s not subject to Congressional oversight and what intra-military oversight there is can be reduced through use of SAPs or ACCMs. What’s the chances that a very tight ACCM was used?

              If it’s intra-agency covert, control of info is messy and plausible deniability is out the window for the suits in NSC. Would they still use it?

              That’s where I’m coming from.

              • SKIMPYPENGUIN says:

                Not if it was just one person in NSC, reporting to OVP so they cannot be directly implicated.

                The Iran Contra folks learned their lesson, and returned to the White House wiser and more aware. The mistake under Reagan was running sanctioned operations out of the NSC with Presidential consent.

                Under Bush, the whole idea was deniable or compartmentalized programs run out of the NSC, but supervised by OVP. Enter the FourthBranch concept and the claim that OVP doesn’t fall under Legislative or Executive.

                No one is accountable…the operations themselves are classified…the people doing them are within a compartmentalized program and won’t say anything…and the Vice President runs the show.

                It’s brilliant when you think about it. At the most, any investigation would stop at the NSC, not OVP. Which is the point. That’s why he goes on TV, he’s not worried.

              • SKIMPYPENGUIN says:

                I personally believe it was a combination of ACCM and the knowledge than people like McCrystal were involved. What yuppie staffer wants JSOC shooters mad at them? If I was a William & Mary or Stanford grad, I have better things to do than leak stuff to the Washington Post and risk my life. I have lobbyists to screw, coffee to drink, parties to attend…get the picture?

                Call it the Cheney Cocktail. One half secrecy, one half intimidation. Mix with imperial Vice Presidency, ruthless underlings and thinly veiled threats. Add pinch of arrogance. Stir. Serve cold.

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