Is John Rizzo Stalling?

Boy, the press conference with Eric Holder today was jam-packed. In addition to using the Zazi arrest to push to renew the PATRIOT Act, Holder apparently updated reporters on the long-awaited OPR report.

The release of a long-awaited ethics report on the conduct of former Justice Department lawyers who authorized the use of harsh interrogation appears to be a ways off.

Attorney General Eric Holder said Tuesday the department is waiting for additional comments from “some of the lawyers who were involved.” The former Office of Legal Counsel lawyers under scrutiny already missed a May deadline for submitting their responses.

Speaking with reporters at Department of Justice headquarters in Washington, Holder said he expected the report to be cleared for release relatively soon. In June, he said the report, now more than four years in the making, would be ready in a “matter of weeks.”

The report explores whether legal advice in the interrogation memos, which have since been rescinded, met professional standards required of Justice Department lawyers. The Office of Professional Responsibility’s initial findings are said to be harshly critical of Jay Bybee, the former head of the Office of Legal Counsel, and John Yoo, a former deputy.

In spite of this report’s focus on Yoo and Bybee, I wonder whether they’re really the cause of the delay. After all, last we heard, the report was delayed not just because Yoo and Bradbury got a chance to review the document and work the ref, but because CIA got to review the document, even while John Rizzo, a key participant in the report, remained as Acting General Counsel at CIA.

In other words, "some of the lawyers who were involved" may not be limited to the OLC lawyers. John Rizzo was "involved" over a longer time and in as central a role as any of the OLC lawyers. He may have as much incentive as they do to delay the report.

43 replies
  1. oldoilfieldhand says:

    Thanks Marcy! Weeks, Months, Years! Inevitably, justice will find Yoo, Bybee, Cheney, Rice, Rumsfeld and Bush.

  2. MadDog says:

    I hadn’t given a thought to Rizzo’s inclusion in OPR’s efforts since one would naturally assume that only DOJ lawyers would fall under OPR’s reach.

    If OPR does also have the CIA’s former acting General Counsel Rizzo as part of their report, you may have in fact nailed it.

    • emptywheel says:

      Oh, he doesn’t come under their mandate. But I suspect that the report reflects just as badly on his actions as it does on Yoo’s. If Yoo was working behind the scenes with Rizzo to make the torture memo look nice for Bybee, for example, doesn’t that impact him as much as Yoo, even if OPR can’t recommend sanctions for Rizzo? (Mind you, Rizzo is retired, whereas Yoo has years of bad lawyering ahead of him, so it’s less important for Rizzo either, but there may legal reasons to want a bite at that apple).

      • MadDog says:

        I also wonder if the CIA’s former CTC Chief Counsel Jonathan M. Fredman might be one of the “reviewers” along with Rizzo.

        It would seem that Fredman might also have been deeply involved with Yoo/Bybee in constructing those legal defense OLC memos.

          • MadDog says:

            I got a kick out of this comment on Fredman from a lawyer rating site:

            …We have not found any instances of professional misconduct for this lawyer…

            That lawyer rating site must not have googled around the net or else they would have found this at

            Name: Jonathan M. Fredman

            (No photographs available)

            Profession: Lawyer

            Positions in the Bush regime and the Obama administration:

            He was Chief Counsel to the CIA’s Counter Terrorist Center under Bush from 2002-2004, and employed by CIA since 1987. He is a lawyer in the Office of the Director of National Intelligence under Obama.

            War crime charges:

            Complicity in the commission of the war crime of torture.
            Complicity in the commission of a war crime detaining and hiding prisoners from the International Red Cross.

            According to the U.S. Senate Armed Services Committee report:

            “On October 2, 2002, Jonathan Fredman, who was chief counsel to the CIA’s Counter Terrorist Center, attended a meeting of GTMO staff. Minutes of that meeting indicate that it was dominated by a discussion of aggressive interrogation techniques including sleep deprivation, death threats, and waterboarding, which was discussed in relation to its use in SERE training.

            “Mr. Fredman’s advice to GTMO on applicable legal obligations was similar to the analysis of those obligations in OLC’s first Bybee memo. According to the meeting minutes, Mr. Fredman said that ‘the language of the statutes is written vaguely. . . . Severe physical pain described as anything causing permanent damage to major organs or body parts. Mental torture [is] described as anything leading to permanent, profound damage to the senses or personality.’

            “Mr. Fredman said simply ‘It [torture] is basically subject to perception. If the detainee dies you’re doing it wrong.‘”

            (My Bold)

            • MadDog says:

              Or this:

              Complaint against Jonathan M. Fredman, ODNI/PPR

              Dear Sir or Madam:


              Velvet Revolution (“VR”), a Washington, D.C. based non-profit with a network of more than 150 organizations representing over a million members nationwide, including in Washington, D.C., herein lodges a complaint against Jonathan M. Fredman, Associate General Counsel, Central Intelligence Agency (2001-2004), Office of the Director of National, ODNI/PPR (current position); Washington DC 20511; 703-275-2990 and requests that the Board on Professional Responsibility, District of Columbia Court of Appeals take immediate disciplinary action against Mr. Fredman for violations of the D.C. Rules of Professional Conduct.


              Jonathan M. Fredman breached his legal duty and violated the D.C. Rules of Professional Conduct by advocating for immoral and unethical “extended” or “enhanced” interrogation techniques (amounting to torture), and other policies that resulted in clear violations of U.S. and international law…

              The more I think about it, the more I’d be willing to bet that Fredman is in that OPR report too!

            • tjbs says:

              . If the detainee dies you’re doing it wrong.‘”
              Wrong means if they don’t die it wasn’t torture and I’ll accept that narrow construct.
              Aren’t there a reported 108 Human Beings who did die during questioning and 24 determined as homicide ergo they tortured even in the confines of their tortured reasoning.
              Start the Torture/Murder/ Treason trials and let the judiciary decide.

    • readerOfTeaLeaves says:

      If OPR does also have the CIA’s former acting General Counsel Rizzo as part of their report, you may have in fact nailed it.

      And nailed it artfully.

      What I find fascinating are the subject/verb patterns, and how they vary among the speakers.

      For instance, strange subject/verb pairs:

      1st video:
      Yoo, [5:15]: after claiming that he doesn’t know what ‘implemented’ means, as used by his questioner, [5:35]’…were the techniques [second subject: ‘that’] were legal…?…no – Let me say this — we did not make a decision about policy.”

      Subjects: the techniques, that, me, we
      Verbs: were, say, did not make
      Phrasing: emphasis on ‘techniques’ implies that ‘techniques’ are somehow in charge of their own legality.

      Bradbury: [6:00] “I am not unaware of precedents that address the precise procedures used by the CIA… uh, I’m simply not aware of procedure on point.”

      Subjects: I, [precedents] that, I’m
      Verbs: am, (not) aware
      Phrasing: I am not unaware… I am not aware… negations about concepts that have been so abstracted as to be invisible and amorphous.

      Levin: [4:27] Things can’t work that way, or else someone could get a lawyer to say: “a crime is not ‘a crime’”, and that would be a legal defense. It is not a legal defense.

      Subjects: Things, someone, a crime, that, it
      Verbs: can’t, could (get), is, would (be), is
      Phrasing: direct, i.e., ‘Here’s a problem, and here’s why it’s a problem. Black is not white.’

      Video 2:

      Whitehouse: [3:00] ‘The role of the CIA in (x and y) raises some interesting potential conflicts of interest….[3:28] … have you got a clean scrub of those at CIA who are involved in those processes, to assure that they are not tainted by a program that is the subject of the report?”

      Subjects: The role, you, those at CIA (who), they, a program (that)
      Verbs: raises, got, are involved, are not tainted, is
      Phrasing: although Whitehouse is forming this as a question, it’s very direct; There’s a problem, do you see this problem? have you done anything about this problem?


      What I find intriguing are the abstractions and negations employed by Yoo and Bradbury. We hear… subjectish wordy-thingys… we sorta kinda hear… verbishy-thingys… but matching the correct subject to the correct verb gets a bit furry and blurry, so it’s kind of like trying to nail down molasses…

      In contrast, Levin and Whitehouse (and Luban and Toomey) use very direct, clear construction and their descriptions are more specific to instances, their subjects and verbs are clearly paired.

      It’s interesting to take a few minutes to replay those videos; Hannah Arendt and Eric Blair George Orwell would no doubt feel vindicated to see how clear language matches up with humane conduct and clear action.

      I hope some research group of cognitive researchers uses these videos to study the relationship between cognition, language, and the capacity to initiate moral action.

      Thank God for Levin and Whitehouse.
      (And EW, bmaz, WmO, MadDogs… and all the other eWheelies.)

      This comment was long, but my good heavens, I hope some neurolinguist takes this on as a research topic.

  3. earlofhuntingdon says:

    If you miss the bus, you walk. Why not publish without their comments? Having failed to respond in a timely fashion, let them rebut this report on their own soap box and with their own dimes, not the taxpayers’.

    This isn’t an employee appraisal, it’s an internal investigation concerning potential criminal wrongdoing and professional incompetence or malfeasance. Investigators would have already talked to the targets involved in their investigation, weighed the credibility of their answers firsthand, and drawn conclusions about their conduct notwithstanding regardless what they may be compelled to say in their own or their boss’ or their vice president’s defense.

    Why give them second and third bites at the apple? Is it really because pro- and opponents elsewhere in the administration are delaying this, based on their calculations of political fall-out not directly related to the conduct of these attorneys or the DoJ?

    • emptywheel says:

      Interesting. I’ll raise my bet that they’re not going to appeal a dollar then.

      They had originally said they WOULD appeal. Sullivan had originally said he’d agree to a stay. They knew they’d get this time if they asked (and so CREW had little to gain by being an asshole). But if they’ve got to think about it for 20 days, they’re not going to appeal.

        • LabDancer says:

          Nah – he’s flush from going all in on the “F” in NFL standing for you-know-who [ESPN is reporting that Monday night’s Leif Favreson-Packers set-to grabbed the highest viewership in cable history — by 25% yet].

          Tho – he could be tied up trying to convince CREW to go with his ideas for a cross-appeal.

        • Mary says:

          I must have missed the bets. If they are that DOJ will or won’t appeal the ruling the minute, miniscule parts of the Cheney stuff they would still have to hand over – – um, I think they will. Extensions are more the norm if they are trying to get everything ready for an appeal than if they’ve decided not to appeal IMO. fwiw, which isn’t much with the lack of litigation that I am actively involved in.

          • MadDog says:

            Just keeping notes here. Mary and bmaz for an appeal. EW and MadDog against an appeal.

            Are those hubcaps exchangable as US currency? *g*

            • LabDancer says:

              Since we appear to be remaining in the Dollar Store here, I’m claiming the equivalent value of an unsightly dent in the hubcap passed out after the Stillers-bmazzers Super Bowl, on the basis of those two unconsciously prescient calls preceding the spidey guy’s td catches. Last time I checked, just to fix one of those big dingers went for upwards of a sawbuck.

              And I’m throwing in with bmaz & with Scheherazade Mary on the side of Team Holder going ahead with the appeal.

              The reasoning here is off the goal being maximum delay of everything, Sullivan’s scraps included; & you can’t get to delay associated with a protracted appeal process all the way to the top of the steps to SCOTUS without keeping this on life support.

              Plus it’s not as if the post-election edition of the DoJ has shown any particular shame in what it’s willing to file in the way of argument.

              • LabDancer says:

                BTW – in case anyone wants on my case about encouraging this OT mini-thread on hapless causes & hubcaps mirages after my little harrumph on the prior thread: the etiquette is that when fearless leader nails something as squarely as in this post, the appropriate response is genuflection followed on with a gaming frenzy.

              • MadDog says:

                I’ll grant you the validity of your arguments on the appeal.

                Speaking for myself (and perhaps even EW), it may be that the Obama Administration and its AG Holder DOJ would pass on an appeal so as not to set a binding precedent for itself and future administrations should the appeal go against them.

                After all, who cares about protecting PapaDick Cheney other than Lizard Cheney?

                The Obama/Holder DOJ might think that allowing the District Court-level ruling by Sullivan to stand presents less of an important future impediment than the chances of a adverse ruling on appeal.

                Shorter Obama/Holder DOJ: “Screw PapaDick! If this ever comes up again in the future, it’s gotta be with a more savory defendant.”

                As IANAL, caveat emptor! *g*

  4. Jim White says:

    Attorney General Eric Holder said Tuesday the department is waiting for additional comments from “some of the lawyers who were involved.” The former Office of Legal Counsel lawyers under scrutiny already missed a May deadline for submitting their responses.

    Gosh, in the second video, which I see has a date of June, I could have sworn I heard Holder say he already had remarks back from “the lawyers” involved. That is in direct contradiction to what he said yesterday. Is it just a slight mistatement and what we are having now is a second iteration of responses? Alternatively, since Holder made such a big deal of this process being “fact driven”, were their initial responses made to go poof so that factual ones could be submitted?

  5. Jim White says:

    I’ve gone back and listened more closely. Holder’s relevant answer starts at 2 minutes into the video (although Whitehouse mentions the May deadline in his question). Holder does say, around 2:20 that some comments were received in May, but he begins his answer by saying “that process is incomplete” in response to Whitehouse’s description of the steps that had been taken to date.

    I’m now leaning toward my second alternative: it seems likely to me that there is a disagreement somewhere relating to basic facts.

    • bobschacht says:

      …it seems likely to me that there is a disagreement somewhere relating to basic facts.

      Good observation!
      But if so, can’t the report just provide both sets of facts, noting that there was disagreement on certain specified points?

      Bob in AZ

  6. Arbusto says:

    Maybe we can set a standard policy for DoJ and IG investigations where all parties being investigated can have an open comment period and have damning sections mitigated or removed so their feeling aren’t hurt and their culpability reduced or removed.

  7. Mary says:

    I’m really blown away that they would be more critical of Yoo and Bybee than of Bradbury, although Comey did join in on one of the Bradbury opinions and apparently has lots of friends still out and about who wouldn’t want to excoriate Bradbury for an opinion in which DAG concurred. I’ve wondered why he was even reviewing and concurring after those emails came out – was he acting AG for those for some reason (like maybe Ashcroft needing to recuse since he was a named defendant in cases involving actions authorized under the Yoo/Bybee memos maybe?)

    I’m also just not a fan of the OPR report getting released at all for that matter. It is going to be so watered down and it was so compromised on so many fronts from the get to, it will just be an excuse to “move along, move along” when it comes out.

    The things I could see being sticking points involve Obama/Holder’s problems with existing cases for people who are now held and were subjected to the tactics in the memos. For example, if the report focuses on the narrowing language in the opinions (although not so much Bybee’s combo opinion, which flies in the face of the case he tried to distinguish in his non-combo memo) to give the lawyers an out, then it presents that many more problems for Holder’s “good faith reliance” extra-legal epiphany as to why torturers shouldn’t be prosecuted.

    I can see where lawyers for CIA aren’t going to be happy about that, even as milquetoast as it may be, and even though it may not get into the malfeasance of Rizzo in what he did and did not make available.

    If I hadn’t been so cynical about the “Non-review of Most Violations of Law and Ethics” limited investigation (nowhere dealing with things like all the obstruction and destruction of evidence and circumventing of court review by blatant violation of law and ethics) Id be beyond floored, though, that they are supposedly not going to take aim at Bradbury for saying, Post-Abu Ghraib, that the nudity and hooding and stress positions etc. didn’t shock the conscience. We had a national response to the “shock the conscience” question about the very things he is opining on in 2005 and it didn’t support him at all, and the very limited caselaw we had on international torture was dead against him in his combo memo approach.

    All the coverups, disappeared evidence, failure to put on lit holds, profers of lies under declarations to the courts etc – none of that touched on and all of it much more solid and less fuzzy than “did he give a bad opinion.”

    I really think part of what may be going on is that every bit of the opinon that lets the lawyers off the hook more puts the CIA operatives on the hook more and shatters the good faith defense more – and that is what is playing out some. Holder wants to keep up his pretense that he is going to do something, but doesn’t want a public report coming out that the lawyers only authorized very circumscribed activities in circumscribed settings – which is going to be picked up on by defense counsel for people whose treatment exceeded that ASAP as they flesh out their torture and coercion claims and ask for evidence of illegal activity that cannot be kept “classified” under the existing EO and which is not exempted from illegaility by the narrow reading of the OLC opinions that OPR might give – – and as that snowballs, it gets harder and harder to make the claim that there were “good faith” torturers and non-good faith torturers.

  8. Mary says:

    btw ew, your link at “updated reporters” is a site I’m not very familiar with, but they have this in their story/post

    But it’s unlikely that they would face disciplinary action, even if the Office of Professional Responsibility refers its findings to state bar associations. Bybee is now a judge on the U.S. Court of Appeals for the 9th Circuit, and Yoo, a law professor at Berkeley, is likely immune because the conduct in question falls outside of the statute of limitations in Pennsylvania, where he is licensed to practice law

    I have to say, this doesn’t make sense to me. I agree that they may never face disciplinary action, but the fact that Bybee is a judge shouldn’t have much to do with that, and I don’t know what they mean at all with respect to Yoo. If by the “conduct in question” they mean the actual torture, that isn’t what OPR is investigating (and since there were a couple of deaths, including one from hypothermia/stress/stripping) so I’m ?? Most of what OPR is investigating isn’t something that has a SOL under state law that I can think of, so I wonder if PA has special procedures for making complaints based on professional breaches that they are talking about. They lost me on that one.

  9. Jeff Kaye says:

    Great job of reporting, Marcy, and thanks for the great video from Alliance for Justice.

    Is Rizzo, or Fredman, or CIA stalling? Yes, you are absolutely right. The reason is, I believe, in part due to the fact that the CIA’s own Office of Technical Services wrote an extensive report on the SERE-derived torture techniques for use by the Office of Legal Counsel in their construction of the first of the torture memos. The OTS report to OLC lied about the medical and psychological consequences of the proposed techniques. We know they lied because researchers in the same directorate of the CIA had themselves been studying the severe effects of these techniques going back at least to the 1990s.

    The CIA must be working overtime to redact almost every culpable portion of the OPC report that links the OLC memos to the initial OTS/CIA report vetting the “enhanced interrogation techniques.” If the latter comes out — and the OTS paper is still classified, and according to my sources, until recently ACLU was not even aware of its existence — then we will have a very clear picture of the culpability of the CIA in the construction of the torture program, just one short step away from the Oval Office orders, which Dick Cheney and Bush have already indicated they gave.

    If the American public, and society in general, cannot totally dismantle this torture apparatus, bring its actors to the bar of justice, and ensure that this kind of serious criminality is stopped and prosecuted, then I fear for the future of this country… because it won’t be very long before whatever the United States was, it will cease to exist, except perhaps in name only. It will be something too awful to contemplate, and a long dark chapter in history won’t be ending, but just beginning.

    • readerOfTeaLeaves says:

      And given reports at TPM this week about a strange, mysterious private entity being given the contract to operate a prison, and also take over the local law enforcement, in a city in Montana, the potential implications are seismic.

      Bad enough to deal with these problems in a government context.
      In a privatized context… (shudder).

  10. MadDog says:

    Just in case you hadn’t checked these out EW (and I’m guessing you probably already did *g*), wrt Section 215 stuff, EPIC has some great FOIA stuff here that fits with your earlier post today of Bush’s Illegal Domestic Surveillance Program and Section 215:

    EPIC’s Freedom of Information Documents on the USA PATRIOT Act

    Good stuff like this:

    Internal FBI Emails Regarding Application for Section 215 and the Office for Intelligence Policy and Review (10/03) (1 page PDF)

    This commentary got me laughing out loud:

    …The fact that this new FISA tool has lanquish [sic] for two years – with no likely usage in the future is nuts. While radical militant librarians kick us around – true terrorists benefit from OIPR’s failure to let us use the tools given to us…

    And this:

    FBI Memo Revealing the Agency Applied for a Section 215 Order in October 2003 (October 15, 2003) (1 page PDF)

  11. freepatriot says:

    does a bear shit in the woods ???

    somebody had to say it …

    and in response to labdancer’s statement at 25:

    the appropriate response is genuflection followed on with a gaming frenzy.

    I’d like to take this opportunity to post the inappropriate response

    I been watchin baseball all day, so jes act like it’s teh seventh inning stretch, ONE, TWO, THREE:

    Take it out at the ball game

    show it of to the crowd

    pull out yer peanut and show em some crack

    I don’t care if you don’t put it back

    pull your root root root for the home team

    if they don’t win I don’t care

    cause its fun to pull your junk out at the old ball game

    I’d apologize to Harry Caray, but I’m probably gittin banned for that one any way …

  12. allan says:

    OT, but it’s late in the thread:
    EW and bmaz have shown a Zen-like fortitude in not commenting on the situation in Phoenix.
    Come on, tell us what you think.

  13. BoxTurtle says:

    I know it’s late, but I’d like to get on the appeal bandwagon. I think ObamaCo is going to drag it out to the last second, file the appeal, and then stall, stall, stall.

    They can drop the appeal at any time they think they’ll get a bad ruling, meanwhile nothing happens. Their goal from the beginning has been to delay if they can’t win. Their eye is on the SOL, once that expires they no longer have to worry about prosecutions.

    Boxturtle (It wouldn’t shock me if they asked for another 30 days before filing)

  14. NMvoiceofreason says:

    The Statute of Limitations only applies when there is not an ongoing conspiracy that tolls the start. As long as the participants cover up what they did in the hope of escaping accountability, the SOL has not even BEGUN to run.

    Second, the Torture until Death and War Crimes conspiracy/acts are capital crimes. They have no SOL whatsoever, even in Pennsylvania.

    • BoxTurtle says:

      Would that it was so. The SOL generally begins when the crime is revealed and an adequate lawyer wouyld argue that the DoJ was aware of the crimes much earlier than we were.

      It’s the DOJ’s decision to prosecute. Or not. The DoJ under Bush choose not to prosecute. The Doj under Obama chose not to prosecute. No money changed hands and no one was blackmailed to make those decisions. ObamaCo has been quite upfront about their decision not to prosecute.

      You are correct that murder has no SoL. War Crimes less than murder do expire. But you will not get ANY of the people we need to get on murder charges. The Lawyers, Cheney, Bush and the rest of the cabinet will walk.

      Boxturtle (Unless we shame Holder into acting)

  15. emptywheel says:

    Just so everyone is clear on the bet–it’s whether DOJ will appeal Sullivan’s decision that DOJ has to turn over a redacted copy of Cheney’s interview report. Not torture, but Cheney outing a spy, which is practically the same thing.

  16. NMvoiceofreason says:

    Mary @ 22

    I have to say, this doesn’t make sense to me. I agree that they may never face disciplinary action, but the fact that Bybee is a judge shouldn’t have much to do with that, and I don’t know what they mean at all with respect to Yoo.

    Bybee must be impeached first, by the House of representatives of the United States Congress. Until/unless that happens, he is immune. He can be disparaged, but not punished or indicted. Yoo’s immunity has to do with the way bar associations work: the predicate acts were not committed in Penn., so until/unless another jurisdiction provides them notice that he is under indictment, tried, convicted, sentenced, and lost all appeals, they don’t have to do anything more than “consider it”.

    • Mary says:

      and 39 et al

      The thing is, a bar complaint has nothing to do with a criminal investigation. Yes, if there is a felony conviction you do often have some relatively automatic actions by a bar, but in general what you have on actions of professional misconduct and a bar review of those actions (none of which is a criminal case – the bar/state sup ct doesn’t stand in for a criminal prosecutor) is that as long as a complaint is made within a reasonable period of time and lays out solid info on instances of prof misconduct, the bar can review. I’ve never really seen (but that doesn’t mean it’s not out ther or even common, I’ve just never seen it) any raise any kind of a defense to a bar proceeding that there is a SOL for bar review of allegations of professional misconduct. Actually, since they wait for a ruling on felony cases, lots of time by the time a felony conviction is obtained and the bar then “acts” to suspend a license, the SOL on the crime to which the felony relates is up. But lots of misconduct claims don’t really tie in to a “SOL” Still, I don’t know PA rules of disciplinary procedure or local custom and practice and I can’t say that even in the states where I am familiar in a passing way with disciplinary proceedings that I would absolutely rule out that there might be a SOL for some kinds of bar complaints, it’s just odd and handled in a way in the story that made me think they might have conflated professional misconduct disciplinary procedings with criminal proceedings and they are two different things.

      • bmaz says:

        From the Pennsylvania Bar Disciplinary Board Website:

        ODC does not entertain complaints arising out of alleged acts or omissions occurring more than four years prior to the date of the complaint, except in cases of theft or misappropriation, criminal conviction, where the attorney has engaged in a knowing act of concealment, or in certain circumstances where the facts of the matter have been under litigation.

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