The Lead Up to Bybee

I want to return back to the analysis of the OLC-related Vaughn Index from last week. I’d like to fill in the timeline leading up to the issuance of the Bybee Memos and identify as nearly as possible which documents were exchanged with CIA. The timeline is below, but for now, some observations:

  • There is nothing in the two-week process leading up to the release of the Bybee Memos that appears to contribute to the Bybee One memo–the one authorizing the program in the abstract. Rather, the two week process appears to consist of negotiations over the Bybee Two memo–the one authorizing waterboarding and other torture, as there are several documents exchanged during that period known to contribute to that memo.
  • Note the mix of faxed memos and memos with no apparent cover sheets (suggesting they may have been hand carried). Particularly given that the July 13 memo from Yoo to Rizzo is one of the ones without a cover sheet, I wonder whether the non-faxed letters were sent exclusively between Yoo and Rizzo, whereas the faxed documents were shared with Bybee and others at OLC (but that’s just a wildarsed guess).
  • Note the one memo–on July 19, 2002–which the CIA claims was written in anticipation of litigation. It’s interesting this one has that declaration whereas the others don’t.
  • CIA claims the Abu Zubaydah psychological profile was a draft. Is there a final somewhere? Or do they just call it a draft because they were not sure it made Abu Zubaydah look fit for torture yet?
  • There are still a lot of questions about which DOD documents were forwarded by CIA to the DoJ. It appears likely that the missing document is the first packet of information from JPRA, which is not that inflammatory (though I wonder if it described these techniques as torture?). It also appears that DOD or CIA took apart the July 26 memo from JPRA and sent it to DOJ in parts; that’s important because it appears they left off the 2-page JPRA document referring to these techniques as torture.

July 13, 2002: Rizzo meets with Bellinger, Yoo, Chertoff, Daniel Levin, and Gonzales for overview of interrogation plan. Yoo writes initial okay for torture.

July 17, 2002: Tenet meets with Condi, who advises CIA could proceed with torture, subject to a determination of legality by OLC.

July 19, 200: A CIA lawyer faxes a nine-page (plus cover sheet) draft memo to an OLC attorney. It discusses proposed interrogation techniques, medical information, and operational intelligence. CIA claims the document was written "in anticipation of litigation."

Late July 2002: Bybee discusses SERE with Yoo and Ashcroft.

July 24, 2002: Four things happen on this day:

  • A CIA Attorney writes (apparently does not fax) an OLC lawyer a 2-page memo discussing certain proposed interrogation techniques, medical information, and operational intelligence. (CIA does not claim this document was written in anticipation of litigation.)
  • Date of Abu Zubaydah’s psychological profile–which CIA considers a draft. Presumably on the basis of the psychological profile being a draft, CIA claims parts of the memos can be withheld because they are "predecisional." 
  • A CIA attorney faxes an OLC attorney an 11-page (plus cover sheet) memo regarding legal analysis of the CIA’s rendition, detention, and interrogation program. (CIA does not claim this document was written in anticipation of litigation.)
  • OLC orally advises CIA that proposed techniques are legal.

July 25, 2002: Three events happen on this day:

  • DOD’s OGC asks JPRA for "a list of exploitation and interrogation techniques that had been effective against Americans."
  • Before getting that response, DOD’s OGC asks for "a list of techniques used by JPRA at SERE school."
  • In response to the first request, JPRA hand carries a memo with lesson plans on exploitation; the memo has 6 attachments (see pages 208 to 209).
  • Date of DOD document (almost certainly from JPRA to DOD’s General Counsel)–of either 46- or 59-pages long, providing legal advice. This document was in OLC custody in 2007, but it could not be located this year.

July 26, 2002: Three things happen on this day:

  • In response to the second DOD OGC request on July 25, JPRA sends memo with three attachments:
  • CIA apparently sends a 12-page (plus fax cover sheet) memo to DOJ [the Vaughn Index says the fax cover sheet was from CIA to DOD, but lists From/To as CIA to DOJ]. The memo is a DOD document discussing resistance training techniques to special designated high-risk-of-capture personnel.
  • OLC orally tells CIA proposed techniques (presumably including waterboarding) are legal.

July 31, 2002: Two similar (but apparently not identical) memos are sent on this date:

  •  CIA writes (but apparently doesn’t fax) a two page memo to DOJ responding to DOJ’s inquiry about the physiological effects of a proposed interrogation technique in connection with the preparation of legal advice by OLC.
  • CIA faxes a two-page (plus fax cover sheet) memo to DOJ responding to DOJ’s inquiry about the physiological effects of a proposed interrogation technique in connection with the preparation of legal advice by OLC.

August 1, 2002: "Bybee Memos" completed.

  • Bybee One (50 pages) describes torture as that which is equivalent to the pain accompanying serious physical injury, "such as organ failure, impairment of bodily function, or even death." 
  • Bybee Two (18 pages) describes and approves of ten interrogation techniques to be used with Abu Zubaydah. Relies on Abu Zubaydah psychological profile, JPRA techniques, Ogrisseg memo.
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89 replies
  1. alinaustex says:

    Often as a lay person trying to keep up with the parsing and other kabuki done by the Bushies to make it legal to do the EIT and whatever the fuck they called it – all of this was just smoke and mirrors – because all of the EITs were in fact criminal as they all are violation of Article Two of the Geneva Conventions – It to me seems simple -any one who aided and abetted torture — or covering up the torture after the fact committed a crime – and must be punished to the fullest extent of the law .

    • bmaz says:

      Ditto. It is freaking frustrating ain’t it? And let me tell you, the deeper you get into it, the more infuriating it is. The worst part is that, if it is not substantively addressed, it becomes not an aberration but a part of the ethos and fabric of what we are as a people and a nation. We are quite well on the way there.

  2. bobschacht says:

    July 25, 2002: Three events happen on this day: …
    Date of DOD document (almost certainly from JPRA to DOD’s General Counsel)–of either 46- or 59-pages long, providing legal advice. This document was in OLC custody in 2007, but it could not be located this year.

    Date of fire in Dick Cheney’s Office: December 19, 2007.

    Hmmm.

    Bob in AZ

      • klynn says:

        I posted this yesterday about the fire.

        and Mary @ 6, tjbs @ 17:

        The fire investigation was taken over by federal investigators the same day as the fire and the DC Fire Marshall was then “out of the picture”. The notes I can find note the federal investigation may not be made available to the public. I found that point interesting.

        I think we need to demand a release of the fire investigation. I also found how quickly the MSM got headslines up stating “the conspiracy theories will fly” regarding the Cheney office fire due to the timing.

    • tjbs says:

      There must be a follow up fire report from the Fire Marshal.
      That would discuss the contents burned and the origin of said fire, unless the was no follow-up because of States Secret cover.

  3. 1boringoldman says:

    Date of DOD document (almost certainly from JPRA to DOD’s General Counsel)–of either 46- or 59-pages long, providing legal advice. This document was in OLC custody in 2007, but it could not be located this year.

    And why wouldn’t JPRA have a copy? Somebody there wrote it…

    • cinnamonape says:

      It would seem that the material would be on a hard-drive, memory-stick, or file somewhere…even if in draft form. If they can’t provide the actual document the preliminary documents should be compelled to be presented in order to reconstruct the original…which could be done by actions of those who received it and subsequent documents that correspond to the “drafts”.

  4. Mary says:

    Ew – In an earlier thread I left a comment and link that I’m going to pull up here too.
    http://emptywheel.firedoglake……ent-189599

    I had been looking for something and in looking I found something at History Commons I had never seen before and that could, if it is true, give some additional context to Bybee 1 & 2. History commons provides info that as early as July, 2002, Zubaydah was given JAG lawyers. If it is true, it makes you think that someone was ready to start that Philbin Theatre of secret Kangaroo court martials and then they got a rude surprise from the JAG involved.

    http://www.historycommons.org/…..hieldretro

    July 2002: Complaints over Torture Results in Memo Granting Retroactive Legal ‘Immunity’
    Military lawyers for a detainee believed to be Abu Zubaida (see March 28, 2002) lodge numerous complaints with unidentified White House officials over the torture of their client. Zubaida has been subjected to waterboarding and other abuses by CIA interrogators (see March 28, 2002-Mid-2004, March 28-August 1, 2002, Mid-April-May 2002, Mid-April 2002, and Mid-May 2002 and After). The complaints trigger a hastily arranged meeting between Vice President Cheney, White House counsel Alberto Gonzales, Cheney’s chief counsel David Addington, National Security Adviser Condoleezza Rice, and a number of officials from the Defense and State Departments. The discussion centers on the production of a legal memo specifically for the CIA that would provide retroactive legal immunity for the use of waterboarding and other illegal interrogation methods. According to a subsequent investigation by the Justice Department (see February 22, 2009), the participants in the discussion believe that the methods used against Zubaida are legal because on February 7, 2002, President Bush signed an executive order stating that terrorists were not entitled to protections under the Geneva Conventions (see February 7, 2002). Nevertheless, the participants agree that methods such as waterboarding probably violate international and domestic laws against torture, and therefore the CIA and the Bush administration would both benefit from a legal opinion stating what techniques are legal, and why they do not fit the legal definition of torture. The meeting results in the production of the so-called “Golden Shield” memo (see August 1, 2002).

    I can’t find anything about this allegation of military lawyers for Zubaydah lodging complaints on and prior to July, 2002 and those being the impetus for the July meetings (not to get a legal memo authorizing future anticipated torture, but to paper over older torture that JAG lawyers weren’t playing along with in the Philbin Courts Martial run ups). If the allegation is true, it would give context to the timing of the Yoo and Bybee documents (not in a good way). It would also give context to why there were the 2 memos and possibly to why the mid-July memo claims to have been prepared in anticipation of litigation.

    If this happened, someone decided that now that they had Zubaydah they should start getting a court martial proceeding ready under the Philbin memo, esp with the FBI bailing, and if Zubaydah got JAG lawyers (who have been shown to very often be cut from a totally different cloth than DOJ lawyers) who started to make torture/war crimes arguments/complaints, then you could see where someone got nervous enough to try to hold these meetings and get these memos, especially if they knew that, despite what they were trying to slide through on a kangaroo court front, Zubaydah wasn’t really a high value al-Qaeda operative.

    But along with Zubaydah, they also had al-Faruq and al-Libi and likely others, who presumably had not yet been given JAG lawyers (maybe Levin knows something about this, or maybe Zubaydah having lawyers in July 2002 who were making waves was in his report – I just don’t recall it). So CIA would need two things – one a specific reliance memo fo rthe guy who had been tortured and who had a lawyer(s) now; second a generic memo that could be pointed to for the situations like al-Faruq and al-libi and others where there was not, yet, a JAG lawyer involved but where there would likely be one in the future.

    OTOH, I haven’t seen this reference to JAG lawyers being involved vis a vis Zubaydah as early as July 2002 beforee, so ??

    @2 – that would form a nice question for ACLU to frame for DOJ/CIA – whether any docs were ever transferred to OVP and whether any could have been destroyed in the fire.

    • bobschacht says:

      Mary,
      Thanks for this.
      So, do you think that in response to the bothersome JAG officers, the WH decided to stop providing JAG lawyers to subsequent high value detainees? If so, was this just an oral agreement, or did it get memo-ified?

      Bob in AZ

    • Rayne says:

      Interesting. Our skimpy penguin friend mentioned that there were — had to be — JAGs involved. There must be more than one, and they’ve been “disappeared” throughout all of the events, pointedly not mentioned.

          • Mary says:

            I am going to giv3 it a r3st, but how do3s that go to th3 cont3nt of th3 comm3nts? I don’t think Skimpy is JAG and I can’t r3call Skimpy having prof3ss3d to having any info on AZ’s initial handling or contacts (and n3ith3r do I). I think Skimpy has som3 good insights and hop3 h3/sh3 will k33p posting, but thos3 insights don’t involv3 JAG and ar3 wildly contradictory wh3n it com3s to l3gal asp3cts (on th3 on hand claiming that th3 p3opl3 involv3d on th3 int3l/WH front w3r3 going to do what th3y w3r3 going to do, no matt3r what – but also that non3 of it would 3v3r hav3 happ3n3d but-for th3 lawy3rs. H3/Sh3 has also said both that th3r3 ar3 going to b3 all kinds of int3l whistl3blow3rs now who will sav3 th3 day (hav3n’t s33n 3vid3nc3 of that as SOLs tick away, but I’ll hop3 Skimpy’s t3lling th3 truth on that) and y3t also saying that th3r3 won’t b3 whistl3blow3rs and succ3ssful inv3stigations bc th3 skill s3ts of thos3 involv3d and mon3y, training, 3tc. ar3 such that th3y will disapp3ar or clam up and 3v3n tak3 short s2nt3nc3s to k33p th3 dirti3r laundry out of sight and g3t th3ir ultimat3 pay off (som3thing I find mor3 b3li3vabl3, actually).

            I’m not sur3, to b3 hon3st, how Skimpy com3s in to a discussion about wh3th3r or not JAG w3r3 appointd by mid-2002 to r3prs3nt AZ, bc I don’t think h3/sh3 r3ally w3nt th3r3, but in th3 3nd I think you hav3 to 3valuat3 cont3nt as cont3nt. fwiw

            • Boston1775 says:

              I don’t know if the reference to an enclosed JAG email attached to the following helps, but I’m looking:

              (Tab 12) November 7, 2002 Memorandum from Headquarters, Department of the Army to Joint Staff: Review of SOUTHCOM/GTMO Request for Techniques.

              HEADQUARTER, DEPARTMENT OF THE ARMY
              Assistant Deputy Chief of Staff for Operations and Plans
              (Joint Affairs)

              ARMY PLANNER DAMO-ZC
              Memorandum No.

              MEMORANDUM FOR LEGAL COUNSEL TO CHAIRMAN, JOINT CHIEFS OF STAFF

              SUBJECT: SJS 02–6697

              1. Army has reviewed the request of the Commander, United States Southern Command, for further legal review by the Department of Defense and the Department of Justice of the proposal to employ Counter-Resistance Techniques in the intelligence interrogation of enemy combatants detained at Guantanamo Bay Naval Station.

              2. As set forth in the enclosed memoranda, Army interposes significant legal, policy and practical concerns regarding most of the Category II and all of the Category III techniques proposed.

              3. Army concurs in the recommendation for a comprehensive legal review of this proposal in its entirely by the Department of Defense and the Department of Justice.

              Encls
              1. CITF Legal Opinion
              2. OTJAG e-mail

              http://www.naderlibrary.com/91…..s.doc1.htm

    • JasonLeopold says:

      Hi Mary. I’ve had some extensive conversations with Zubaydah’s attorney, Brent Mickum, on this and he has told me that details that could shed some additional light on the JAG issue and actually change the narrative a bit (according to Mickum) are contained in the government’s factual return, which remains classified, something which Mickum has protested in recent court filings.

      • bmaz says:

        Interesting. Assuming there is nothing lost in translation, and I am pretty sure you would try to be meticulous with that for obvious reasons, I certainly know how I interpret that statement. You have the pleading or case cite etc. where Mickum has so moved by chance? That might be worth a look methinks.

        • JasonLeopold says:

          yes. I was actually just about to comment that I will upload it. I am (or was) going to write a story on the diaries as there is quite a bit of interesting material in here but take a look and see what you think.

          Be back in a few minutes.

        • JasonLeopold says:

          on the diaries filing, page 8, I found this to be quite interesting:

          The Government relies heavily on Petitioner’s diary throughout the factual return. By removing every reference to the diary, the Government leaves very few of the relevant allegations against Petitioner to be seen by the eyes ofthe public. Moreover, what is left is an incredibly misleading picture: for example, for several pages of the factual return, virtually the only words that are left unredacted are the names: Abu ij:afs aI-Masri, Abu Mas’ab al-Zarqawi, and Khalid Sheik Mohammad, known al Qaeda operatives: what the public does not see is that the only reason these people are mentioned in Petitioner’s factual return is that they are alleged
          to have been in the same city as Petitioner: the Government does not even allege that Petitioner had direct, or even indirect, contact with them. See Factual Return at’ 53.

  5. Garrett says:

    I’m syncing up with this. You can say with certainty that the July 26 verbal authorization was for waterboarding, per SSCI narrative p. 4.

    On July 24, 2002, according to CIA records, OLC orally advised the CIA
    that the Attorney General had concluded that certain proposed interrogation
    techniques were lawful and, on July 26, that the use of waterboarding was lawful.

  6. R.H. Green says:

    July 25th, 4th item. This indicates that JPRA sent 50 pages of legal advice to the DOD GC. Doesn’t seem right.

    • emptywheel says:

      It depends. We know JPRA send DOD OGC something that day. The version in the SASC backup (which I’ve linked) is just excerpts. But it says there were 6 attachments-they were lesson plans. So they could be ~7 pages each.

  7. Boston1775 says:

    There are still a lot of questions about which documents CIA forwarded from DOD. It appears likely that the missing document is the first packet of information from JPRA, which is not that inflammatory (though I wonder if it described these techniques as torture?). It also appears that DOD or CIA took apart the July 26 memo from JPRA and sent it to DOJ in parts; that’s important because it appears they left off the 2-page JPRA document referring to these techniques as torture.

    ————————————–
    That answers THE question for me. I could not understand WHO the JPRA were, in importance, that their memo could carry such weight.

    They turn out to be just like everyone else.

    Pawns (whose memo is taken apart to avoid the T word) who get brought back in to become Dirty Pawns (by providing classes on how to do it).

    Do I have this right?

    • emptywheel says:

      JPRA is the entity that provides SERE training, so they’re the ones who had the institutional memory on the torture they wanted to reverse engineer.

      What I suspect happened is that they sent over a memo on 7/26, and someone–either at DOD OGC (Haynes) and/or at CIA (Rizzo) took only those documents that helped Yoo pull off what he wanted, while leaving out the document that would have made it clear to those doing the cherry-picking that this was torture.

      By cherry-picking it, in other words, they were trying to make sure DOJ could pretend that it didn’t also know this was torture.

  8. pdaly says:

    emptywheel, I spotted something on your July 26 entry that may need correction

    [the Vaughn Index says the fax cover sheet was from CIA to DOD, but lists From/To as CIA to DOD].

    The Vaughn index you linked to in that entry states “From DOJ to CIA”

    Also, I’m having trouble understanding this sentence from the 5th bullet point in the beginning of the post.
    Wondering if it might be a typo

    There are still a lot of questions about which documents CIA forwarded from DOD.

    Thanks for organizing this blizzard of memos/faxes/courier packets. I cannot keep much of it straight and will have to bookmark this post for future reference.

    • emptywheel says:

      Indeed, that was a stupid typo. Thanks.

      Help me make that other sentence more comprehensible.

      There are a number of documents that JPRA wrote for DOD OGC (that is, DOD to DOD), which DOD then forwarded to CIA which then forwarded them to DOJ. Or that’s the story anyway. In truth, the War Council–Haynes, Rizzo, and Yoo–may have gotten together and dealt these documents like cards, in which case the DOD to CIA step is a formality, nevertheless a fictional bureaucratic formality that they seem intent on maintaining.

      So documents go from JPRA to DOD OGC to CIA OGC to DOJ.

      Some fall off by the wayside (the JPRA document identifying this as torture). It’d be nice to figuve out WHERE they fall off, because it would be proof of criminal intent. Then there is the 46 to 59 page document that disappeared from OLC’s SCIF. It’d be nice to identify with certainty which document that was, to determine how incriminating the disappearance was, and to pinpoint WHY it disappeared.

      • radiofreewill says:

        It’s always possible, I suppose, that documents can ‘vanish’ from Public View because they are evidence in an on-going, undisclosed investigation…

        So, for instance – and I’m speculating here – suppose Mary finds a cite to substantiate the possibility that Zubaydah had JAG Lawyers in the Spring of ‘02 – and if the JAG Lawyers became aware that Zubaydah, or others, had been Waterboarded – then it wouldn’t be too hard to imagine an Article 31 Investigation under the UCMJ kicking-off.

        And, who knows how that would go, but it, or some other investigation like it, might use a Classification Authority to ‘cloak’ an otherwise known document from current Public View, in order to protect further Investigative/Prosecutorial development of the case from something like a group of bloodhound DFH Bloggers who would ‘know’ what they were looking at if they saw it.

        Otoh, Addington and Cheney could have decided that certain documents – the ones with the *Torture Inside* Labels – were either smoking guns, or elements in the smoking gun chain, that simply had to disappear…

      • pdaly says:

        sorry, I got called away to breakfast (house guests this weekend).

        re: “There are still a lot of questions about which documents CIA forwarded from DOD.”

        How about:
        ” There are still a lot of questions about which DOD documents were forwarded by CIA to the DoJ?
        And maybe add the explanation of the bureaucratic formality as you did @22 why DOD would send documents to CIA despite that war council hootenanny.

      • Jeff Kaye says:

        Many thoughts.

        Re the AZ psychiatric report: No doubt the drafting was precipitated by the July 13 Yoo letter to Rizzo, which practically calls for it, as “evidence” of due diligence re torture, and avoid prosecution.

        However, the Bybee memo references multiple reports (emphasis added): “[a)ccording to your [psychiatric] reports, Zubaydah does not have any pre-existing mental condition or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods.”

        Perhaps these are not formal reports, but details in the many cables sent to HQ or between field offices.

        Also, as regards the sequence of exchanged memos around SERE, you hypothesize that it goes from JPRA to DOD OGC to CIA OGC to DOJ. This may be correct for the time period you have limited this analysis to, but does not, I believe give the full picture, and therefore may limit our best guesses re, for instance, the 46 or 59 or whatever page missing document… let’s call it Doc X.

        As I’ve pointed out elsewhere, CIA’s Office of Technical Services has solicited JPRA for information for use in passing on to OLC. This is mentioned in the CIA OIG report, which notes that OTS’s analysis played “a substantial part” in the drafting of Bybee One:

        OTS also solicited input from DoD/Joint Personnel Recovery Agency (JPRA) regarding techniques used in its SERE training and any subsequent psychological effects on students. DoD/JPRA concluded no long-term psychological effects resulted from use of the EITs, including the most taxing technique, the waterboard, on SERE students. The OTS analysis was used by OGC [DoD’s [[ or should this read CIA’s?]] Office of General Counsel] in evaluating the legality of techniques.

        Previously you wrote: “In the SASC report, both Jim Haynes and John Rizzo were very squirmy about discussing how DOD advice [got] to OLC for CIA’s torture memos”.

        What is missing is the earlier than July (most likely) DoD/JPRA memo or report to CIA/OTS describing the techniques, and possibly their effects. We also cannot say exactly when or which memo transmitted the info to OLC.
        What we do see, and you note the cherrypicking, is a flurry of attempts to get some last minute info from lower-rung JPRA figures, which OLC than cherrypicks. (I documented how they did this last April.) I think it’s possible that Doc X references or is perhaps largely a reprint of that JPRA to CIA/OTS document.

        In fact, now that I think of it, the 46pg original doc of legal advice to CIA, in the 07 Vaughn index could be in fact the JPRA advice to OTS (heretofore missing). The 59 pg missing doc is a hiding of that, or has that effect, as it is a re-sending of the original report to OTS, with accompanying summary or update, from JPRA to DoD OGC, hence now a 59pg doc. Whatever reason the 7/25 memo was sent, it had the effect of allowing for problems in later declassification because of the two agencies involved. This has been an issue in the past on other documents as well. The fact it is missing is testimony to its sensitivity.

        To Mary @6 — that’s a very interesting scenario re the JAGs, and I would like to hear or see more more. HC’s account rests on Jason Leopold’s fascinating report last Feb., and may give us a more accurate view than the Senate Intel Committee narrative, that has the memos being drafted after an initial request is made in mid-May for waterboarding. Kiriakou reported that AZ’s waterboarding began in late May or early June, and military atty protests would have occurred then. But possibly they occurred even prior to the waterboarding, as the sleep deprivation, shackling, stress positions, etc. could easily have been the occasion for protests as well. In any case, the memos came out of the experience with AZ, and if JAGs were involved, I wish they’d come forward now.

        – Great comments by scribe, Mary, boxturtle, etc., and a herculean effort by EW to put all this data into some kind of understandable order!

        • R.H. Green says:

          (and reply to EW@ 18)

          “…the 46p doc of legal advice to CIA in the ‘07 Vaughn Index could be in fact the JPRA advice to OTS…”

          I’ve not been able to access the ‘07 Index, but EW’s post today and her comment @ 18 indicates that the doc is described as addressed to GC at DOD. My concern is that whether to the DOD or CIA, any document sent by JPRA to a GC is probably not going to be “legal advice”.
          As I understand things, there are exceptions to mandatory responses to FOIA requests. With-held items are described generally and some rationale provided to justify nondisclosure. I don’t know whether calling something “legal advice” is one of these exceptions.

          EW showed that two sets of information were requested by DOD GC on that date (7/25) and the JAPRA doc may have been the list of techniques and “lesson plans”, but that is a far cry from “legal advice”. Other with-held documents were described as being in “anticipation of litigation” or as being “predecional”. These seem to be possible rationales for nondisclosure, and my suspicious self wonders if the missing pages of the JPRA document are being hidden by calling them “legal advice”.

          • Jeff Kaye says:

            These are very good points, and I certainly was wondering how JPRA’s info to CIA (or to Dod GC) could be construed as “legal advice”.

            The 2007 Vaughn Index (and here’s the link again) only states the document is Top Secret, it is dated 7/25/02, and has a description solely as follows: “Memo providing legal advice”. While it doesn’t say from whom the memo originates, it says it is 46 pg. in length. The description is much shorter than that in the 09 filing (at least in the copy I have seen).

            The 2007 index’s heading states that all the documents are “Classified Dcouments Concerning Advice to the CIA”.

            I suppose the government was wishing by this time that it could have secured AZ in a Libyan prison.

            • R.H. Green says:

              Thank you for the reply. I checked the link you provided and noted that what I tried to visit was the link EW provided in todays post, the ‘09 Index. My slow dialup can’t seem to bring it home. You indicate that you have seen it. Could you check to see if it designates the origin of the document, and if it is JAPRA, whether it does, in fact, refer to the doc as “legal advice”?

              In correction to my earlier comment, I note that the lesson plans and techniques were sent separately from the “legal advice” memo.

  9. radiofreewill says:

    When I look at the timeline, I don’t ’see’ the scholarly, professional pursuit of a ‘best practices’ approach to Interrogations.

    I see a very narrowly cobbled-together line of twisted words and flawed logic, composed of ‘cherry-picked’ pieces from Ideologically ‘like-minded’ sources that Implement Unquestioningly – in a way that is Outrageous to ’see’ in plain sight – a Policy of Torture. Professionally speaking, there is No Ethic of Responsibility on Display Here.

    It ‘looks’ as if 1) the Policy was ‘decided’, and, then – after – 2) the Facts were ‘fixed’ into Covering Legal Memos by Toady Lawyers, in order to Falsely Launch a Policy of Torture – very narrowly presented in the OLC Memos as more ‘Justified’ than Just.

    It seems most accurate to say that these Lawyers were ‘loyally’ following the Orders of their Political Master, in the belief that Bush’s word was ‘not illegal’ – they Acted as the Enablers for the Nixonian ‘Divine Right of Presidents’ Mentality – and it shows.

    Bush to DoJ:

    We’ve Waterboarded already, on our own Unlimited Power, and We’re Going to Waterboard Some More.

    Now, tell us it’s Legal, and then Make It So.

    Include provisioning for Retroactive Immunity for anything that may have happened before.

    I mean, don’t the forensics of all this suggest that these documents are only barely hiding some tyrannical fingerprints underneath the smudge marks of the Lawyers’ handkerchiefs?

  10. bmaz says:

    Looking at these two documents (here and here) from FAS you have to wonder how the hell a substantial document went missing from a SCIF. Of course it is also hard to figure how the US Government could “lose” billions in cash on pallets, but the Bushies managed to do that, so I guess anything is possible. Still, it is hard not to gravitate toward the conclusion these “losses” were intentional.

    • BoxTurtle says:

      It is impossible for a document to “go missing” from a SCIF accidently.

      Assuming you are allowed access, you go to the SCIF. You tell the Classified Document Clerk there the file code(s) you desire. The clerk does NOT know the contents of the file, though they may make educated guesses. When the clerk removes the file, the clerk is personally responsable for it and log entries are make to indicate the file was accessed. The clerk takes the file to you and you sign for it. YOU are now personably responsable for the file. If you are allowed to leave with it, it is still in your name and remains there until it’s returned.

      Documents don’t just vanish. There’s a clear chain of custody.

      Boxturtle (They are lying if they say they don’t know who “lost” the documents)

      • NMvoiceofreason says:

        Not all SCIF’s operate this way. Many are large vaults with the documents stored in safes inside. When the door is closed (in operation), the safes are opened, and the people inside can do essentially what they want to with the contents. The is how in “The Snowman and the Falcon” they grew pot in a SCIF. The people in the SCIF have absolute control over the documents, subject only to audit. OVP and CIA know these rules well and have used them to their benefit to make inconvenient “evidence” disappear.

        The SCIF you describe is a repository SCIF, only found at the largest locations in the community.

        • BoxTurtle says:

          I have experience with only two SCIF’s. In neither case could I actually see the file room from where I was. But I know it took two clerks to be present before I could get my file, as I had to wait once at the smaller of the two.

          It’s that audit that’ll get you. That audit trail is a trail of personal ownership. The document is not released to the DoJ, it is released to John Smith, DOJ atty and Smitty is responsable for it.

          We know who vanished those documents. If they left the SCIF without that audit trail, people would have been fired. If the audit trail said “Released to D. Addington per VP authorization”, I’d bet the government would say “lost” rather than tell the truth.

          I wonder if that audit trail would be discoverable.

          Boxturtle (It seems unlikely that a classified clerk would take the fall for this)

        • bmaz says:

          Irrespective of that, and the links I gave above spell out the specific levels and requirements, if a document does go missing, they ought to have a pretty good idea of who had access to the SCIF and be able to ferret out who and how it occurred; after all that is exactly how they tracked down the path of the surveillance log that “inadvertently” left a SCIF and was copied to disclosure to al-Haramain. If the document is really gone and they do not have any idea how and why, then they are no trying to find out how and why.

          • scribe says:

            It’s true, what you’re saying, BMAz, but the problem is that SCIFs come in two basic flavors – the “Safe holding a few library books” and the “big room with a lot of people working in it”.

            The other problem is in how documents are handled in the SCIF.

            If it’s the former type of SCIF, then in theory the access record to that safe should be enough to find out who was in there and got at the documents. In practice, though, I suspect the safe is opened (unlocked) first thing in the morning and then the person with the combination turns the little card that hangs from the handle from “closed” to “open” and marks the access record accordingly. And people needing to access the contents of the safe could do so as needed.

            Someone intent on abstracting the documents from the safe would then be able to access them in the normal course of work, viz.:

            Bob: “Hey, Jim, I need to get into the safe. OK?”
            Custodian Jim (turning to look): “Yeah, OK. Just put it all back when you’re done, OK?”
            Bob (insulted): “OK.”

            If it’s the “big room” type of SCIF, the problem is actually worse. In the big room SCIF, you get access nowadays with a swipe card and a PIN on a keypad. That shows you went in at a certain time and left at another time. But it does not tell what you did while you were inside.

            Moreover, in such a big room, most of the classified material is, if not laying around on tables, more easily accessible than in the “safe” model. Everyone is working on classified materials all the time, right out in the open.

            Factor into this that inventories of classified materials are conducted on intervals which are, shall we say, not day-to-day. There’s just too much paper floating around and, one can reasonably conclude, accountability for most of it is maintained by not taking it out of the filing cabinets between periodic inventories. I suppose they use bar-coding or something similar now, but even then updating the inventory would be a major pain in the ass.

            My conclusion is that we will never find out who was involved in removing the documents from the SCIF beyond reducing it to a set numbering probably 20 to 50, and we will never know the exact date they disappeared more accurately than a one-month interval.

            Just remember – Sandy Berger got those notes that he got in trouble over – out of a SCIF without anyone noticing for quite some time. That he was prosecuted for it was more a function of Republicans beating on Democrats (and being willing to look back and not look only forward) and make a bit of political hay out of it (and remove a Democrat conversant on national security issues from the conversation). If he could do that when out of office, you can be sure that people in office could effect that a lot more easily.

            Remember, too, that Rumsfeld had an office in the Pentagon for some time after his (forced) resignation, in which he was supposedly arranging his papers and records for the historians.

            • BoxTurtle says:

              In practice, though, I suspect the safe is opened (unlocked) first thing in the morning and then the person with the combination turns the little card that hangs from the handle from “closed” to “open” and marks the access record accordingly.

              You are correct. And lets assume this is an “open” SCIF, where everybody is accessing everything all the time. They still must make a log entry that they got it. NOTHING LEAVES THE SCIF without custody. I won’t go into details, but it would be very difficult to smuggle something out as the documents are tagged. You could shred it. You could misfile it. But not get it out.

              And at the end of the day, all those files would be returned to the safes, logged in, and the safes locked.

              If something got “lost” in a SCIF, it would be assumed compromised until known otherwise. There would be a major investigation. This involves multiple documents, not just one. Congress would be involved. I don’t think the SCIF was compromised. I think the logs would tell the tale.

              The theory that they still have the docs but they can’t match them up to the vaughn index is valid. The government was being intentionally vague in those filings.

              Boxturtle (If I were the Judge, I’d demand the logs for the missing docs)

              • scribe says:

                True, as far as it goes. But here’s the deal on how they gamed the system.

                When a DoJ SCIF is thought to be compromised, the first entity which investigates is the Office of Professional Responsbility (OPR). We all know the OPR from … whitewashing the careers of the DoJ lawyers who wrote these opinions and otherwise making all nice-nice when the Republicans screwed up something or the other.

                Then, in the odd event that the stink stank too much to be contained in the OPR, the DoJ Office of the Inspector General could swoop in and cherry-pick the investigation from OPR – the OIG only investigates that which they want to investigate – and bury it (or not) as they deemd fit.

                Right now, I don’t recall off the top of my head who the people in the Bushco OPR and OIG were, butI recall they were both fully-staffed with wholly-loyal Bushies and, FWIW, were fountains of scandal even before the change of administration because of the egregiously partisan, screwed-up manner in which they were operated. You could look it up.

                I stand by my appraisal – it likely will never be narrowed closer than 20 to 50 people and a month in time.

                After the news of the documents going missing came up, I had the opportunity to discuss the facts of this loss of documents with an acquaintance who works (and has worked) for a long time in a federal law-enforcement/intelligence job. (I sandbagged them a bit, by not saying what agency or office until the very end.) This person’s first conclusion was that “someone deliberately destroyed those documents”. They just blurted out that conclusion. When I mentioned to this person that the SCIF whence they’d gone missing was the OLC, this person blanched – all the color drained from their face – and could not believe it until I told them that it was the ACLU torture tapes case (of which they were aware). Then it was “aw, Jesus”, more because they recognized how thoroughly that compromise ran than anything else.

                You have to remember – the people in the OLC are lawyers, and these particular lawyers had shown themselves to be past masters of extreme legal minutiae and of manipulating rules-based systems to achieve the results they (or their superiors) wanted. They gamed the law and, IMHO, gamed the security system.

              • cinnamonape says:

                All of this assumes a correct “audit” when the materials were returned. If the “audit” failed (given that the clerk may not know the contents of the documents, but may simply be looking to see if a file with seemingly appropriate contents is returned) then perhaps the loss may not be realized for some time. A file could be replaced (with a transferred seriation number…cut-and-paste…is this possible???) with another. Or blank pages inserted. It’s the old “Cut Paper in an envelope under a $100 bill” act.

                But the fact that these are thesis-sized documents that are entirely missing is very odd.

                It would be interesting to get the records of everyone who accessed those files, and the other files they examined on the same day..and look in those “unrelated” files.

                Also, if you wanted to “bury” who was the guilty party you might have others examine the document subsequently…if there was some unrelated item in there, they might not think anything is amiss. In fact, if you place something in there related to their needs they might not comment about it at all to the archivist.

      • Mary says:

        This is all about the “feature, not a bug” issue on this. The extreme vagueness of the original Vaughn index is such that DOJ is saying in part that they don’t really know what the originally indexed documents were to track them.

        Then the docs at issue came from lots of different files (as is common in doc productin) and yet not all of the files were were part of the indexes. Then, files and docs were going to both OPR and CIA and sometimes from OPR and/or CIA on to ther places. While at OPR and CIA, the files and/or docs were sometimes also held in SCIFs, but sometimes not.

        And again, back to the original indexes, if you were so vague that you can’t tell from your own index what it was that you meant to have on it to start with (nothing to indicated what file a doc that is titled, on the index, Undated memo from Unknown to Unknown about unspecified makes is a pretty difficult thing for someone coming in later to do anything with (it is pretty revelatory of the bad faith of the first index when the DOJ itself, with all its resources, can’t figure out what docs DOJ itself was talking about on its old index, even though they were kept in a SCIF. And why you can’t have a copy set if you are keeping the docs in an SCIF in particular makes no sense.

        But the real thing that Barron’s memo reveals is that they aren’t trying very hard to figure out how things disappeared and who is responsible (look forward, not back – it’s like the Obama-Zen Legal Doctrine of Fraud on the Court) and who is responsible for knowing what was on the index to start with. This is why declarations are signed to start with – to make someone accountable. It’s not like the Court is missing the declarations and signatures on pleadings filed with it. Maybe it can offer a copy set for a small fee

        @26/27 You have to keep in mind, too, what was happening (or should have been happening) when the first Vaughn Index, and when investigations like the OPR investigation and CIA investigation etc. took place. For those, esp the doc production issues related to the Vaughn index and FOIA, there wouldn’t have been a document or file that someone would go in and ask for, the lawyers would have had to pretty much go in and look through lots of files and pull docs for the index stack etc.

        • BoxTurtle says:

          the lawyers would have had to pretty much go in and look through lots of files and pull docs for the index stack etc

          Quite correct. But every one of those accesses would be logged. And nothing would leave the SCIF without personal custody.

          Here’s another point: Just because you’re allowed access to a file does NOT mean that you can leave with it. A classified messenger will deliver the file to your office (assuming your office is secure) and you will sign for it. You own it until you summon another classified messenger to deliver it to it’s next location.

          If those documents were removed from a SCIF without clear chain of custody, it’s some clerks ass. So I’m assuming that the log at least clears the SCIF personel of losing custody. Which makes it likely that the log names the person(s) who lost the files.

          Boxturtle (Just not buying that something disappears from a SCIF)

          • Mary says:

            Yep, my original commnts (for som rason my computr is skipping a lttr, hopfully you can tll which on it is) in th thrad on Barron’s dclaration wr that no on was making th ffort to track what has happnd for th judg, but you do also hav to look at what th original indxing has cratd – if Barron’s crw can’t tll what a documnt was from th indx to start with, it maks it that much hardr to track whthr it was vr takn out of th SCIF. If somon had a typo and and th doc was 15 pags instad of 5 pags, or was DOD instad of DOJ, tc. and it was so poorly dscribd originally and/or includd so many “unknown” rfrncs, how do you track whthr or not you can’t find it bc it is gon or you can’t find it bc you don’t know what you ar looking for? That’s th fatur that somon has to addrss as wll. Th whol purpos of th Vaughn indx is to hav thr b an list of what isn’t bing producd – if DOJ can’t tll now what was on its own original list, it nvr complid to start with.

      • bobschacht says:

        Boxturtle,
        That’s the theory, but what if the person who wants the docs is Addington, and he gets abusive? What if he just goes and gets the docs out of the file himself? what if he tells the clerk, just give me the damn keys and go take a break?

        There are dozens of ways a powerful bulldog like Addington can intimidate a clerk, especially if the clerk’s boss is also someone who is in cahoots with Addington, or equally intimidated by him?

        Bob in AZ

  11. scribe says:

    EW – relative to the “in anticipation of litigation” issue you may want to look, timeline-wise, at the June-July 2002 dates as they pertain to the following:

    (1) Jose Padilla being (a) arrested and (b) shifted from civilian to military custody and (c) (according to the allegations raised in his civilian criminal trial) tortured while in military custody;
    (2) Zacharias Moussaoui and his pending charges and trials for allegedly being the 20th hijacker (the first of many such guys);
    (3) the whole military commission thing.

    As to Padilla, remember that he had civilian attorneys at that time, who were litigating on his behalf.
    From wikipedia:

    On May 8, 2002, Padilla, a U.S. citizen, flew from Pakistan to Chicago’s O’Hare International Airport. As he stepped off the plane, Padilla was apprehended by federal agents executing a material witness warrant issued by the United States District Court for the Southern District of New York in connection with its grand jury investigation into the September 11th terrorist attacks. Initially Padilla was considered a “material witness,” without charges filed, and given only very limited access to legal counsel. His designation was later changed to “enemy combatant,” which meant that he, like many non-citizen suspects in the War on Terror, could be imprisoned indefinitely, and without legal recourse or access.

    Padilla’s attorney, Donna Newman, claiming to act as his next friend and on his behalf, filed a petition for habeas corpus in the United States District Court for the Southern District of New York. On December 4, 2002, the court denied the petition and held that the President of the United States, as Commander-in-Chief had the authority to designate as an “enemy combatant” an American citizen captured on American soil, and, through the Secretary of Defense, to detain him for the duration of armed conflict with al-Qaida.

    From the actual S.Ct. decision (written by Rehnquist):

    Because we do not decide the merits, we only briefly recount the relevant facts. On May 8, 2002, Padilla flew from Pakistan to Chicago’s O’Hare International Airport. As he stepped off the plane, Padilla was apprehended by federal agents executing a material witness warrant issued by the United States District Court for the Southern District of New York (Southern District) in connection with its grand jury investigation into the September 11th terrorist attacks. Padilla was then transported to New York, where he was held in federal criminal custody. On May 22, acting through appointed counsel, Padilla moved to vacate the material witness warrant.

    Padilla’s motion was still pending when, on June 9, the President issued an order to Secretary of Defense Donald H. Rumsfeld designating Padilla an “enemy combatant” and directing the Secretary to detain him in military custody. App. D to Brief for Petitioner 5a (June 9 Order). In support of this action, the President invoked his authority as “Commander in Chief of the U. S. armed forces” and the Authorization for Use of Military Force Joint Resolution, Pub. L. 107-40, 115 Stat. 224 (AUMF),1 enacted by Congress on September 18, 2001. June 9 Order 5a. The President also made several factual findings explaining his decision to designate Padilla an enemy combatant.2 Based on these findings, the President concluded that it is “consistent with U. S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as an enemy combatant.” Id., at 6a.

    That same day, Padilla was taken into custody by Department of Defense officials and transported to the Consolidated Naval Brig in Charleston, South Carolina.3 He has been held there ever since.

    On June 11, Padilla’s counsel, claiming to act as his next friend, filed in the Southern District a habeas corpus petition under 28 U. S. C. §2241. The petition, as amended, alleged that Padilla’s military detention violates the Fourth, Fifth, and Sixth Amendments and the Suspension Clause, Art. I, §9, cl. 2, of the United States Constitution. The amended petition named as respondents President Bush, Secretary Rumsfeld, and Melanie A. Marr, Commander of the Consolidated Naval Brig.

    The Government moved to dismiss, arguing that Commander Marr, as Padilla’s immediate custodian, is the only proper respondent to his habeas petition, and that the District Court lacks jurisdiction over Commander Marr because she is located outside the Southern District. On the merits, the Government contended that the President has authority to detain Padilla militarily pursuant to the Commander in Chief Clause of the Constitution, Art. II, §2, cl. 1, the congressional AUMF, and this Court’s decision in Ex parte Quirin, 317 U. S. 1 (1942).

    The District Court issued its decision in December 2002.

    End of part one of my comment

  12. scribe says:

    Continuation of my comment at 31

    Stevens dissent has a better chronology, particularly around the dates of the initial hearings and such:

    In May 2002, a grand jury convened in the Southern District of New York was conducting an investigation into the September 11, 2001, terrorist attacks. In response to an application by the Department of Justice, the Chief Judge of the District issued a material witness warrant authorizing Padilla’s arrest when his plane landed in Chicago on May 8.1 Pursuant to that warrant, agents of the Department of Justice took Padilla (hereinafter respondent) into custody and transported him to New York City, where he was detained at the Metropolitan Correctional Center. On May 15, the court appointed Donna R. Newman, a member of the New York bar, to represent him. She conferred with respondent in person and filed motions on his behalf, seeking his release on the ground that his incarceration was unauthorized and unconstitutional. The District Court scheduled a hearing on those motions for Tuesday, June 11, 2002.

    On Sunday, June 9, 2002, before that hearing could occur, the President issued a written command to the Secretary of Defense concerning respondent. “Based on the information available to [him] from all sources,” the President determined that respondent is an “enemy combatant,” that he is “closely associated with al Qaeda, an international terrorist organization with which the United States is at war,” and that he possesses intelligence that, “if communicated to the U. S., would aid U. S. efforts to prevent attacks by al Qaeda” on U. S. targets. App. A to Pet. for Cert. 57a. The command stated that “it is in the interest of the United States” and “consistent with U. S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as an enemy combatant.” Id., at 58a. The President’s order concluded: “Accordingly, you are directed to receive Mr. Padilla from the Department of Justice and to detain him as an enemy combatant.” Ibid.

    On the same Sunday that the President issued his order, the Government notified the District Court in an ex parte proceeding that it was withdrawing its grand jury subpoena, and it asked the court to enter an order vacating the material witness warrant. Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 571 (SDNY 2002). In that proceeding, in which respondent was not represented, the Government informed the court that the President had designated respondent an enemy combatant and had directed the Secretary of Defense, petitioner Donald Rumsfeld, to detain respondent. Ibid. The Government also disclosed that the Department of Defense would take custody of respondent and immediately transfer him to South Carolina. The District Court complied with the Government’s request and vacated the warrant.2

    On Monday, June 10, 2002, the Attorney General publicly announced respondent’s detention and transfer “to the custody of the Defense Department,” which he called “a significant step forward in the War on Terrorism.” Amended Pet. for Writ of Habeas Corpus, Exh. A, p. 1, Record, Doc. 4. On June 11, 2002, presumably in response to that announcement, Newman commenced this proceeding by filing a petition for a writ of habeas corpus in the Southern District of New York. 233 F. Supp. 2d, at 571. At a conference on that date, which had been originally scheduled to address Newman’s motion to vacate the material witness warrant, the Government conceded that Defense Department personnel had taken custody of respondent in the Southern District of New York. Id., at 571-572.

    And, from footnote 5 in the Padilla decision from the S.Ct.

    Although the District Court upheld the President’s authority to detain domestically captured enemy combatants, it rejected the Government’s contentions that Padilla has no right to challenge the factual basis for his detention and that he should be denied access to counsel. Instead, the court held that the habeas statute affords Padilla the right to controvert alleged facts, and granted him monitored access to counsel to effectuate that right. Id., at 599-605. Finally, the court announced that after it received Padilla’s factual proffer, it would apply a deferential “some evidence” standard to determine whether the record supports the President’s designation of Padilla as an enemy combatant. Id., at 605-608.

    End of part two of my comment

  13. scribe says:

    Continuation of my comment at 32 on this thread

    Here is a copy of Padilla’s amended writ of habeas corpus, filed June 19, 2002.

    Here is a copy of the government’s motion to dismiss the Padilla habeas petition, filed June 26, 2002.

    This is the government’s supplemental motion – as to dismissing the amended petition for habeas corpus – filed August 26, 2002.

    This is the “Unclassified Mobbs Declaration“, laying out next-to-no facts to support PAdilla’s military detention, also filed August 27, 2002.

    End of part three of my comment

  14. scribe says:

    Continuation of my comment at 33 on this thread

    What is important to note is the Southern District (i.e., trial court’s) opinion, written by Mukasey, on December 4, 2002 which (so graciously) allowed him to meet with his lawyers (which the government did not comply with for well over a year after tah t date. Also noteworthy – both for being one of the first examples of the procedural chicanery which we saw the government use again and again for cases utterly lacking merit as well as for the evidence of close coordination through the DoJ of all the terra cases (look at Paul Clement, dammit) is an opinion on reconsideration of the December 4, 2002 opinion found here at google docs.

    End of part four of my comment

  15. scribe says:

    Continuation of my comment at 34 on this thread

    (Some) Documents on the Padilla case are collected here.

    If you scroll down on that same page, you will also find a plethora of documents relative to both the Moussaoui and the John Walker Lindh cases, both of which were going hot and heavy, litigation-wise, with filings in the summer of 2002.

    Also note that, a couple weeks ago, the Ninth Circuit pounded the government for the way it had used the material witness statute to lock people up in the aftermath of 9/11/01 and allowed a private suit against Ashcroft for those violations to go forward. It’s worth noting that the abuses of the material witness statute which were in issue in that Ninth Circuit case began in June-July of 2002. It’s also worth noting that the case for which the person suing Ashcroft was supposedly a material witness (and therefore was detained) was the Idaho federal case where a computer programmer and website developer was ultimately acquitted of all the terrorism and most of the immigration violation charges against him ( the jury hung on the remaining charges) and the feds agreed not to reprosecute if he went back to Saudi.

    End of comment

    • emptywheel says:

      Thanks. Those are good reminders.

      But if Padilla was in DOD custody, then this opinion–a CIA one–wouldn’t apply, would it?

      And keep in mind he standard set by the OGC review of the torture tapes. For that one, Wendy Hilton claimed that it was in anticipation of litigation–basically an attempt to set up a defense for those who tortured Abu Zubaydah. I’m wondering if something similar is going on here.

      • scribe says:

        You’re concluding that the “litigation” they were anticipating was relative to Zubaydah.

        I’m saying that the “litigation” they were anticipating was any interrogation or torture-related litigation, of which they were already involved in no small amount by the summer of 2002. Remember, in May-July 2002 Lindh raised claims about his treatment which didn’t take any stretch to define the treatment as torture under the relevant laws. And, given what they knew they were doing both inside and outside the US territory thaey could foresee more. The minute Padilla got access to his lawyers so he could tell them what they were doing to him they’d be hit with the torture charges in habeas petition. The minute all those Muslims detained in the MDC in Brooklyn got access to their lawyers, they’d be hit with more torture claims. They were anticipating litigation on any number of fronts and we are wrong to try to limit it to one particular case – their response didn’t.

        Remember, too, that in Padilla’s criminal trial, all of a sudden DVDs of his interrogations while in the Charleston Brig started disappearing about the same time as his attorneys started reviewing the discovery.

        Under Brady (and, for that matter, the Jencks Act), the feds were required to provide all recordings of all interrogations to the defense, particularly when they were arguably exculpatory. Video showing torture (however defined) would have been strongly exculpatory, as would have been video of, say, an interrogator putting Padilla’s fingers on the AQ job application allegedly found in Afghanistan by an illiterate Afghani helper of the US, which figured so prominently in convicting Padilla. It was neither surprising (to me, the cynic) nor to a lot of people doing defense work, when those videos did not appear in the course of the criminal trial.

        • bmaz says:

          Heh, that is basically what I have been saying all along. Making the claim that there was no foreseeable nor possible investigation or litigation, whether criminal, civil, military or administrative is a pretty broad brush, and that is exactly what they claimed on the record before Congress and courts. As I have pointed out repeatedly, the individual detainees themselves that were depicted in the tapes had an unequivocal interest at a root minimum; it is simply laughable to say there was no possibility of an investigation or case of some nature as to the individuals themselves. That is before you get to all the other forums and places that absolutely either demanded or suggested lit holds. It is just insane.

          • scribe says:

            Yeah. And the treatment of Lindh, for example, came at the hands of the CIA and (to a lesser degree) FBI outside the US, in Afghanistan.

            So, they clearly had a really easy time of anticipating litigation on that count. FWIW, here’s a brief cull of some of the motion practice in Lindh’s case:

            In June 2002, Lindh filed motions to suppress use of his interrogation by the CIA and the military:

            • Motion By Accused American Talib To Suppress Use Of Interrogation By U.S. Agents, Included CIA Officer Johnny Michael Spann, Made Just Prior To The Deadly Uprising At Qala-I-Janghi Prison In Northern Afghanistan (PDF) June 17, 2002
            • Motion And Memorandum Of Authorities In Support By Accused American Talib To Suppress Statements For And For Prolonged Detention Allegedly Without A Determination Of Probably Cause (PDF) June 17, 2002
            • Motion And Memorandum Of Points Of Authorities In Support By Accused American Talib Seeking To Suppress Statements That Are Alleged To Have Been Made Involuntarily While In Custody Of U.S. Authorities In Afghanistan (PDF) June 17, 2002
            • Motion And Memorandum Of Authorities In Support By Accused American Talib Seeking To Suppress Statements Allegedly Made To U.S. Special Forces And Journalist Robert Pelton On Assignment For CNN In Afghanistan (PDF) June 17, 2002

            In June 2002, Lindh also moved to dismiss for violation of his Fifth Amendment rights:
            • Defendant’s Memorandum of Points and Authorities in Support of Motion to Suppress Statements for Violation of His Fifth Amendment Rights (Miranda and Edwards) (PDF) June 13, 2002

            By May 30, 2002, the government responded to Lindh’s defense having earlier requested to interview Hamdi, one of the other people being tortured and others in DoD custody….
            • Government Response Re: Defendant’s Request to Interview Detainee Yaser Himdy (PDF) May 30, 2002
            • Government’s Response to Defendant’s Amendments Regarding Defendant’s Subpoena Request (PDF) May 24, 2002
            • Appendix of Authorities in Support of Defendant’s Response to Government’s Supplemental Memorandum Regarding Defense Access to Potential Witnesses in Department of Defense Custody (PDF) May 23, 2002
            • Declaration of Tony West in Support of Defendant’s Response to Government’s Supplemental Memorandum Regarding Access to Potential Witnesses in Department of Defense Custody (PDF) May 23, 2002
            • Defendant’s Response to Government’s Supplemental Memorandum Regarding Defense Access to Potential Witnesses in Department of Defense Custody (PDF) May 23, 2002
            • Defendant’s Amendments to Reply to Government’s Response to Defendant’s Subpoena Requests (PDF) May 22, 2002
            • Defendant’s Reply to Government’s Response to Defendant’s Subpoena Request (PDF) May 20, 2002
            • Government’s Designation of Classified Documents (PDF) May 17, 2002
            • Government’s Motion To Permit Ex Parte And In Camera Filing Of Government’s Second Motion For Protective Order Regarding Non-Exculpatory Reports Of Detainee Interviews (PDF) May 17, 2002

            Indeed, they were already fighting over this in April:
            Government’s Motion For Protective Order Regarding Detainee Interview Reports, And Proposed Order (PDF) April 16, 2002

            I think the Bybee memoranda can be seen as an attempt to end the ad hoc treatment of torture which had been going on prior to that time and try to get it so that torture could be performed inside – not outside – the scope of what the Rethugs defined as “law”.

          • Mary says:

            To go back to what you and I hav3 hit on b3for3, and furth3r to a bit of what Scrib is including h3r3, I t3nd to k33p m3ntioning th3 Jan 2002 m3mo wh3r3 Gonzal3s admits that th3y ar3 3ngaging in activiti3s that ar3 war crim3s und3r statut3, unl3ss th3y mak3 up a lab3l and claim that p3opl3 to whom th3y attach that lab3l ar3 a class against whom nothing that is don3 to th3m is a war crim3; and also th3 mat3rial witn3ss affidavit in th3 Padilla cas3.

            Whil3 3w is right about th3 DOD v CIA asp3ct, Padilla is wh3r3 DOD, DOJ and CIA int3rs3ct, 3sp vis a vis th3 mat3rial witn3ss affidavit. Th3 “sourc3s” for th3 Padilla warrant w3r3 obj3ct3d to from th3 g3t go, 3v3n without much knowl3dg3 by Padilla’s attys. Thos3 sourc3s w3r3 AZ and Binyam Moham3d and issu3s of drugs and mistr3atm3nt r3lat3d to th3 mat witn3ss warrant w3r3 th3r3 from th3 b3ginning, with DOJ/FBI giving th3 affidavit citing th3 sourc3s, CIA managing th3 sourc3s, and DOD colluding with Cl3m3nt and Com3y and DOJ to disapp3ar th3 d3tain33 into tortur3 d3t3ntion in a diff3r3nt district.

            And as bmaz has point3d out in a much simpl3r and dir3ct way,you don’t 3v3n n33d to look at wh3th3r th3r3 would b3 litigation ov3r th3 actions of th3 int3rrogators/CIA 3tc., bc th3 whol3 pr3sumption of th3 d3t3ntions is that th3r3 would b3 proc33dings, military or civilian, involving th3 d3tain33s th3ms3lv3s at som3 point.

            • pdaly says:

              Mary, great recovery with the ‘3′ (BTW, your prior typing made me realize I haven’t seen LHP around in a while. Anyone heard from her, lately?)

              I know from personal experience eating crackers near my laptop can lead to some unresponsive keys. Any chance your computer has been visited by a crumb fairy?

    • R.H. Green says:

      Perhaps a light spray of WD40 on the offending key will help. The key can easily be pryed (sp?) off w/ a small screwdriver or knifeblade. Then, if pushing the underlying pad doesn’t produce the letter, try switching to an other keyboard for now. What; you don’t keep spare keyboards about?

      • bobschacht says:

        I’ve had encounters with crumbs in the keyboard myself, and WD40 is not the answer. Hold the keyboard vertically and blow around the offending key. This in itself is likely to free the key, but the crumb may drop down to block another key. Repeat the process until the offending crumb reveals itself, and then use a tweezers or a fine wire to dislodge the crumb and remove it from the keyboard.

        Bob in AZ

        • R.H. Green says:

          An old Biker told me that WD40 and duct tape are universal emergency tools of choice, no matter how crumby the problem.

  16. pdaly says:

    OT: I just realized that my computer (mac laptop) does not let me know there is more to a PDF file. If I do not scroll to the very bottom of the page and hit the down arrow repeatedly the next page does not appear.
    Many times I mistake the PDF for a single page–including those linked to this post above.

    Any mac users know a way to determine the number of pages a PDF contains without resorting to printing it out?

  17. JasonLeopold says:

    Mary, I should add that the History Commons summary of the article is a quite a bit off as I never reported that Zubaydah was assigned military attorneys (I actually use military attorneys as the phrase and not JAGs) but rather there was simply some military lawyers who protested what he was subjected to and it’s unclear whether they witnessed torture before the August memos or were briefed about it. In my report I don’t say either way because no one I spoke to knew. They only knew that military lawyers protested what they believed was torture (my word choice).

    But what may help clarify this a bit is Zubaydah’s diaries. He told me there is a reference in Zubaydah’s diaries to an FBI agent and a military attorney but he could not say what the context is because the government made a move to put volumes 1-6 under a protective order.

    This is from a recent filing Mickum’s team made related to the government’s continued suppression of Zubaydah’s diaries.

    Having finally realized that volumes 1-6 of Petitioner’s diary cannot properly be deemed classified, the Government now submits a perfunctory and clearly deficient request to declare that each and every page of the first six volumes of Petitioner’s diary are “protected” instead. In doing so, openly flouting two orders from the District of Columbia Circuit and a recent order from Judge Hogan, the Government asks this Court for permission to do what the other courts have ordered it may not do. It also perpetuates a long pattern of abuse by improperly withholding information from disclosure, which is the subject of many pending motions before this Court. The Government’s request to designate over 1,500 pages of information as protected, based exclusively on a cursory assertion that some information contained therein is pertinent to their counterterrorism investigations, falls breathtakingly short of the legal threshold required to justify declaring unclassified information as protected. The Government is well aware of the standard and its motion should be summarily denied.

    And here is the mention of the FBI agent (I am going to assume, and I may be wrong here, that the FBI agent is Ali Soufan or Steve Gaudin):

    While Petitioner has no objection to sealing the names ofthe persons who participated in the translation of Petitioner’s diary (which are the only United States government personnel whose names appear in these 1,500 pages), Petitioner makes this concession in regard only to these particular names (REDACTED and then another paragraph redacted) in this particular context (as found on the cover pages to the English translations of Petitioner’s diary, volumes 1-6). Petitioner does not acquiesce to the wholesale sealing of Petitioner’s diary and its translation because the name of an FBI agent or other U.S. government personnel is listed on a page therein. Contrary to the Government’s insinuation, the fact that a named or otherwise identified person is “United States government personnel” is not reason, in and of itself, to designate that person’s name as protected. Most importantly, even if there were some particular names on a couple of lines on the cover pages of the diary translations that could have legitimately been deemed “protected” had the Government properly sought to do so, there
    can be no justification for sealing the hundreds of pages that follow, much less the original Arabic versions.

    Sorry for such a long rambling comment. Hope this makes sense

  18. JasonLeopold says:

    also, apologies, Mary, for not commenting sooner since I stopped over to read the post and the comment thread last night.

    • Garrett says:

      Those filings are truly distressing. It is easy to get used to the secrecy and all the ways it is implemented. The filings bring home how overwhelmingly powerful it is implemented, and how nonsensical it is.

      • JasonLeopold says:

        Yes. When I was speaking with Mickum he said that not only does the government continue to classify and seal court filings improperly but the judge doesn’t appear to want to issue a ruling on what the defense says is improper classification.

        Here is a comment Mickum made to me last week:

        We have written some excellent filings and just haven’t been able to move the court to make a decision.

        Our supposition is that Judge Roberts asked the IART to file an ex parte submission advising him as to any decision they have made regarding AZ. If the government told him that AZ would be charged criminally or held indefinitely, then the Court’s acquiescence in allowing us to continue to work and make court filings, including our recent motion for discovery that was required under the Court’s Scheduling Order is absolutely unconscionable. We spent hundreds of hours on that filing. This is just so wrong.

  19. JasonLeopold says:

    and then this footnote:

    10 On July 1, 2009, Petitioner’s counsel requested clarification from the Government as to whether Petitioner’s counsel may discuss the specific diary entries that form the basis of the allegations against Petitioner in the Government’s factual return. On July 6, the Government responded that Petitioner’s counsel could discuss these passage as long as the discussion is limited to identifying and discussing the diary passages themselves and does not involve discussing the contents the classified factual return (i.e., the Government’s citation to those passages).

  20. Jeff Kaye says:

    The move to suppress the diaries is outrageous. That should be front page news. How come I haven’t heard of it to this point? (Of course, I may have missed it.) The diaries then are unavailable to the public?

  21. 1boringoldman says:

    July 22, 2002 [John Yoo]
    Applicability of the Convention Against Torture
    Still secret. Subject of FOIA request filed by ACLU on 12/09/08.

    Concludes that the first fifteen articles of the Convention Against Torture are non-self executing and place no affirmative obligations on the Executive Branch. Cited in John Yoo’s 03/14/03 memo concerning military interrogation of alien unlawful combatants.

    How would this unreleased Memo fit into this timeline?

  22. alinaustex says:

    bmaz
    One of my customers here in Central Texas- who is infirmed and therefore needs a driver -is a retired federal employee very familiar with federal grand juries -and she says whats most interesting is how leak free the Durham investigation has been so far . She also says that there is no way to know what the the GJ has already been able to look at – but in her opinion she believes that justice will be well served at the end of Durham’s investigation . And ” we as at Country at long last will be awakened from this this long running nightmare called gwb43 “. She also is a self proclaimed Goldwater Republican that does not “Give a rats ass who you marry -as long as you defend our Constitution and leave me the hell alone “.

  23. klynn says:

    Thank you EW! A huge effort.

    Thank you scribe, Jason, Jeff, Garrett, Mary and of course, bmaz for the amazing comments.

    It appears it would be interesting to look at all the torture cases in total and compile a timeline/list of destroyed, denied and disappeared evidence. The frequency of such activity is quite systemic. I have lost track of the number of times in each case this has happened and usually right at the time of discovery.

    Remember, too, that in Padilla’s criminal trial, all of a sudden DVDs of his interrogations while in the Charleston Brig started disappearing about the same time as his attorneys started reviewing the discovery.

    I have also lost count on the number of improper classifications. Has anyone complied a list of these improper classifications by date/case and type of material-content?

    When looking at this in total, it screams “cover activity”.

    Which is only employed to hide criminal activity.

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