OPR Report Working Thread

A great way to spend a Friday night–reading this with all my friends!

I’m working on the First Draft.

PDF 8: when OPR first asked for emails, they were told that Yoo’s and Philbin’s had been deleted. They later got those emails.

PDF 9: Rizzo refused to meet with OPR until after his confirmation hearing in 2007.

PDF 10: The people who refused to be interviewed:

  • At least 3 CTC lawyers
  • Ashcroft
  • Addington
  • Flanigan

PDF10: There WAS no classified annex to Bush’s July 2007 EO on torture–just Bradbury’s memo accompanying it. But that was supposed to be the WH writing down its policy guidance for torture!

PDF11: They didn’t tell OPR about the Combined and CAT memos until 2007. OPR first got them AUgust 29, 2007.

PDF11: “we cannot say with certainty that the documents provided to us by the CIA included all the relevant documents.”

PDF12: Is the redaction in the middle of the page where they explain why they don’t think Bradbury screwed up? (Actually, they seem to punt with a paragraph on PDF13 arguing for more review.)

PDF 14: Did we know that the OLC memo on warrantless wiretap referred to in the footnote was withdrawn/ Or is that the Fourth Amendment one?

PDF 15 and 16 must include descriptions of CIA’s background in interrogation–things like MKULTRA. It also must include at least one paragraph showing CIA should have know the legal restrictions on torture (perhaps earlier guidelines prohibiting it after they “closed down” the SOA program.

PDF17: Note: there’s no mention of Binyam Mohamed’s torture, which we know started at the same time or before Abu Zubaydah’s.

PDF18: Note the footnote–this report takes the DOJ IG report as proof that they were torturing before they had the memo.

PDF 20: Note the reference to diapers (something Spencer has written a lot on). Then there are redactions that don’t explain where the diapers went.

PDF21: THere’s a 12th technique that they are hiding. Is it the use of drugs?

PDF22: Bellinger told Yoo not to tell State about the torture. I guess he was not the hero on torture he has made himself out to be. Also note–there were MORE people briefed on torture at the beginning than were briefed on Cheney’s illegal wiretap program.

PDF23: Yoo formally began work on the torture memo on April 11. But he had already done research by that point. Note if Yoo’s partner researched torture prosecutions, she should have found the waterboarding prosecution in TX. Note, Yoo’s research was discussed at NSC meeting on same day (April 16) Bruce Jessen first circulated his torture plan. Referring to CIA MFRs (the same thing on which the Congress breifing stuff is based):

we recognize that those reports reflect the agency’s view of the proceedings and are not necessarily accurate accounts.

PDF24: The CIA MFR claims that Yoo said his research (meaning his partner’s) had found “there were no reported decisions interpreting the law [Torture Statute]”

PDF27: Yoo’s partner on Bybee Memo is the one who came up with the medical definition of “severe” for torture.

PDF27: Note the chronology of the meetings: Chertoff by himself, Gonzales and probably Addington and Flanigan, and then everyone else. At the last meeting they were also briefed on torture techniques. Also, the July 12 draft precedes by one day a “how to break the law” letter from Yoo.

PDF29: Note there’s a document referred to that is also discussed in the footnote. The redacted section must be a discussion of the July 13 meeting, at which torture techniques were discussed. So it’s likely that the document–which CIA let OPR look at but not keep–was probably the torture techniques document.

PDF30: Wow. So Yoo send the “how to break the law” letter, drafted on July 13, on July 15. Then Chertoff instructs Yoo to send a letter saying OLC won’t do letters declining proescution before teh fact. But Yoo NEVER SENDS it to CIA.

PDF31: Note the timeline: Yoo meets with Gonzales and probably Addington and Flanigan on July 16, after Ashcroft has already raised the idea of “advance pardon.” No one will say what was discussed at this meeting. But the next day Yoo “forgets” to send letter deny advance declination to CIA.

PDF 32: Yoo, on putting in the get out of jail free card; “They want it in there.”

PDF 36-37: Confirmation of what documents they sent from JPRA (which we knew from the SASC report). Note there’s also a psych report sent a day or two earlier we may not have seen. Jeebus!! They didn’t start the techniques memo until July 26, 2002!!! Before that they were going to do only oral approval for this. Note that Gonzales said his comments on the draft memos would sometimes go through Flanigan or Addington.

PDF 39: Rizzo: “Couldn’t pick [Bybee] out in a lineup.” This suggests that Bybee may have gotten involved as late as July 26.

PDF41: As they later would with the Bradbury memos, WH was pressuring OLC to get the memos out as quickly as possible.

PDF42: Seems to suggest that Yoo’s sidekick informed him that a cable–presumably sending out OLC approval–got sent out, presumably with torture approval. Note that they faxed the Bybee Two (techniques) memo but messaged the Bybee One memo to CIA, suggesting they may have used Bybee Two immediately (suggesting the waterboarding may have been in the first days of August).

PDF 46: At least in what is unclassified, it appears that OPR didn’t question whether Yoo had reason to doubt what CIA was telling him. That surprises me.

PDF 49: Note the big redaction here. There have long been questions about whether Addington and Haynes pushed the Gitmo folks during their September 24 (25?) field trip to adopt techniques or language from Bybee One and Two. If they did, it would appear in this redacted section.

PDF 51: Note the redacted section in footnote 47. That must be a modification of what the description of torture techniques was.

PDF 53: In the “load of shite” department, when Yoo started working on the Yoo memo (for DOD) he pretended that DOD wasnt’ allwoed to know what CIA was doing. But as the OPR report notes, Yoo probably sent DOD copy of the memos, Yoo got info from DOD to write them memos, and Haynes and Rummy were probably briefed in January 2003 on the torture program. So they knew. So why was he pretending they didn’t know? To protect the JSOC guys doing torture? Or to protect Haynes, who was part of the War Counsel (note, OPR thus far makes no mention of war council). Q: Is the DOD memo where Bradbury becomes involved in torture docs? The redaction almost fits.

PDF 56: Muller gets a copy of the DOD memo on torture–just before they start torturing KSM. That appears to be his CYA to make sure torture was still okay.

PDF 57: Yoo actually convinced Bybee–confirmed but not sworn–not to sign DOD memo. Maybe because he was hoping for favorable judge in case a Jeppsen trial came before the 9th?

PDF 60: The OPR report appears to transcribe from a redacted section of the CIA IG Report, describing a bit about the makeup of torture teams, and specifying that the team was led by two contract psych/interrogators (Mitchell and Jessen). This is also lanaguage that is used in the CIA IG Report on why they went beyond guidelines on waterboarding.

PDF61: If one child dies and I find out you knew something about it I will slit your throat.

PDF 62: The first definitive date on al-Nashiri–brought to black site on November 15, 2002.

PDF 64: Note the way they refer to KSM “a high ranking al Qaeda official” with the way they refer to al-Nashiri (“a second prisoner”) and Abu Zubaydah (the description is redacted). OPR didn’t deal with teh fact that CIA was only supposed to torture high-ranking AQ people and AZ definitely didn’t, and al-N may not have, qualified.

Page 67: On January 24, 2003, CIA gave DOJ a heads up on torture. According to Rizzo, Chertoff seems to have been more interested in the threat with the gun on al-Nashiri than one of the detainee deaths (presumably one of the Afghan murders).

PDF 76: Note that Muller tells GOldsmith the Legal Principles were written specifically for use with the OIG report. Also note the footnote modifies the big redacted paragraph specifically in context of Yoo leaving.

PDF 78: The June 16, 2003 MFR is CIA, and is almost certainly something referenced by CIA IG report–where OGC makes its argument that the Legal Principles doc (here, called the bullets) was an OLC doc.

PDF 78: Note the letter in response to Pat Leahy–which he sent to Condi–was signed by Jim Haynes, not Condi.

PDF 79: CIA summary of letter to Pat Leahy notes that US may define cruel and unusual differntly than other countries

PDF 79: Gonzales had questioned whether KSM’s waterboard could be viewed as excessive

PDF 80: HUGE redactions in the “CIA request for reaffirmation” section. This was when CIA was asking WH for something in writing. So they’re not protecting ops here, they’re protecting BushCo.

PDF 84: Makes it clear that it was the warrantless wiretap program that made Goldsmith bug out and ask Philbin for the other crazy-ass Yoo opinions. And after, in December 2003, Goldsmith told Haynes to stop using the Yoo memo for torture, he continued to find the NSA program more troublesome.

PDF85: DOD asks to use one of the more controversial techniques in March 2004. Goldsmith says no. This would have been when they had Hasan Ghul in custody and–almost certainly–in DOD custody. They later put Ghul in CIA custody and used techniques later approved in the May 2005 Techniques memo on him. Those four techniques [see PDF50]  are: 1) Threats of death to detainee and his family, 2) Exposing detainee to cold water, 3) Waterboarding, 4) Light physical contact. The May 2005 opinion approved belly slaps and water dousing, so either of those could have been used and had to be retroactively approved.

PDF 86: Jeebus. Check out this timing. DOD asks Goldsmith in early March 2004 to let them use one of the four extreme measures with a detainee. Goldsmith doesn’t want to let them. He goes to COmey’s house on March 13, 2004 to talk him through it. That was, of course, 3 days after the hospital confrontation (which both Goldsmith and Philbin knew about) and just after everyone threatened to quit.

PDF 86: note that the footnote to the discussion of Muller’s request for reaffirmation is redacted. That’s interesting partly bc we know the “bullet points” (Legal Principles) were not affirmed by OLC, and we know that CIA was trying to authorize the program that was in legal trouble.

PDF 88: CIA OGC and OLC originally were going to submit joint comments to CIA IG Report.

PDF 88: Yoo gave Haynes advice on 12/2/02 about a particular detainee, probably al-Qahtani.

PDF 89: OPR lists the sequential Goldsmith footnotes trashing Yoo’s memos> Worth a read.

PDF 90: Note reference to March 13, 2002 OLC opinion. Says it contradicts Yoo’s opinions.

PDF 90: Bradbury on Bybee One memo: “Sombody should have exercised some adult leadership.”

PDF 97: Levin was the one who pushed the jurisdictional exception for CAT on CIA, bc he believed there was no way it could qualify under CAT.

PDF 102: Levin thinks Gonzales didn’t like him because when he was at FBI, he read some senior FBI people into the warrantless wiretap program.

PDF 102: Gonzales makes the offer of USA CD CA to Levin in January 2005.

PDF 103: Bradbury claimed Levin was the one who started on the Combined memo.

PDF 111; Says Comey’s objection to Combined was that it was hypothetical. But I don’t think that’s it. It’s taht it refers–but doesnt’ detail–teh treatment of one detainee. The OPR report doesn’t discuss who these opinions are written to solve.

PDF 113: Bradbury claims Comey’s objections to Combined were “optics.”

PDF 117: Comey says he was unaware of the CAT memo. Huh? he was at WH on it the day before it was approved.

PDF 118: Suggests that Cheney and Addington made early efforts to persuade cCongress, but not the later ones.

PDF 123: Note the way they describe waterboarding. They “dropped it” (presuming it was in place until 2007) because McCain ojected. Was it in DOD portfolio before that?

PDF 123: Note the OPR’s repeated reference tot eh “Effectiveness Memo,” Which I suspect was written for the purpose of backing up OLC docs.

PDF137: In one of the earlier drafts of the Bybee One memo, Yoo apparently specified that treatment would have to rise to level of breaking bones to be torture.

PDF143-144: The Bybee One memo included a sentence saying you could threaten the lives of all the co-prisoners if you were doing so to get information.

PDF 153 As noted in comments earlier, Yoo asked Koester if there was language in Israel that supported their conclusion on torture, and she said, “unfortunately, no.”

PDF 163: Bybee explicitly references teh “ticking time bomb” scenario in discussion of necessity defense.

PDF165: Ding ding ding: “none of teh EITs under consideration were designed or intended to produce immediate results. Rather, the goal of the CIA program was to gradually condition the detainee in order to break down hisresistance to interrogation.”

PDF 176: The Report states it has no idea why they did Bybee One, since Bybee Two gave CIA everything it needed to engage in torture. Rizzo agreed. Interestingly, BushCo still went to the trouble of replacing Bybee One with the Levin memo.

PDF 178: Note the reference to mock burial. This must be the technique redacted completely, which was originally proposed but not included.

PDF 178: Rizzo told OPR that there was never any doubt that waterboarding would be approved. On July 24, 2002, CIA told OLC that w/o waterboarding the program would be 50% effective.

PDF 191: Note they redacted a paragraph on the torture program’s failures.

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  1. dosido says:

    That’s some book club you got there, ew. Now which one of those tomes is Oprah gonna recommended?

    BTW, Amato has a post up on NHTSA’s cozy connection with Toyota.

    • emptywheel says:

      I did send mr. ew out to buy me pizza and beer to get through this.

      Note that we’ve been given the drafts of the report, and Yoo’s and Bybee’s responses to it. We don’t get (apparently) Mukasey/Filip’s response to it.

      • Petrocelli says:

        K, I’ll just leave a Large Pitcher of Chocolate Martinis for you Brainiacs, and some Bud Light with Pledge Lime for teh trolls, while I watch Transformers and check in from time to time on what you’ve uncovered.

        • scribe says:

          You really hate the trolls, no?

          OT: watching Czech Rep. v. Latvia hockey. Jagr is still a p*ssy. He was a p*ssy with the Pens (Hell, Super Mario had to come out of retirement to snap Jagr out of his whiny-ass p*ssitude), with the Rangers, and in the Russian league. He seems to have developed a slap shot, which he’s exhibiting (for the scouts’ benefit) from the circles, rather than crashing to the net like a real forward. I guess the Russian league isn’t all that its cracked up to be.

  2. Jyrinx says:

    Dude! They released the drafts, too? The pre-spiked versions?

    If we can discredit the revisions made in the final version as the whitewashes they are, might the drafts be taken more seriously?

  3. rosalind says:

    p. 205 (199 on the actual page) in the 6. The Commander-In-Chief Power & Possible Defenses To Torture” section of OPR Final Report:

    Yoo asserted, however, that the C-I-C defense could not be invoked by a defendant unless there was an order by the President ot take the actions for which the defendant was charged. Yoo admitted, however, that the Bybee memo did not specify that the use of the C-I-C defense required a presidential order. He stated: “I’m pretty sure we would have made it clear. I don’t know we might have made it clear orally.”

    (emphasis mine)

    • rosalind says:

      Footnote 159 on page 212 (206 on actual page) of OPR Final:

      Yoo added that he did not believe it was a problem if the requirement of a direct presidential order was not included in the Bybee Memo because he thought it would be “perfectly clear for people who work in this area.”

  4. Arbusto says:

    I’m glad so many FDLers have a stronger stomach than I to read such bullshit as delineated on Margolis memo. I’m having a cocktail to numb the anger.

    It’s nice that Bybee and Yoo got such input to the final report. I am disheartened, by, among other things, OLC or DoJ having no standards that define misconduct or sharp practices. Who’da thunk.

    PS I quit at Pg 2

    • bmaz says:

      Actually they have been able to police this type of crap, for the most part, for as long as they have existed. Up until recently….

  5. emptywheel says:

    Here’s a thought that’s interesting. All though the reporting process, DOJ refused to make Margolis’ name public, though everyone knew he did the review. But they don’t redact it here.

  6. TarheelDem says:

    OPR First Draft Report is very interesting. And given EW’s work here, more familiar than I expected. DOJ is arguing that CIA pushed them.

  7. bmaz says:

    I have just received this from the Senate Judiciary Committee:

    Leahy Announces Hearing On OPR Report

    WASHINGTON (Friday, Feb. 19, 2010) – The Senate Judiciary Committee will hold a hearing to examine the Office of Professional Responsibility Report on the Office of Legal Counsel, Chairman Patrick Leahy (D-Vt.) announced today. The report was released to Congress today.

    The hearing will be held Friday, February 26, at 10:00 a.m. Witnesses will be announced in the coming days, and the hearing will be webcast live online.

    Below is Chairman Leahy’s comment on the report.

    Comment Of Senator Patrick Leahy (D-Vt.),

    Chairman, Senate Judiciary Committee,

    On The Release Of A Report By OPR

    On The Office Of Legal Counsel Memoranda

    February 19, 2010

    “The report from the Office of Professional Responsibility is a condemnation of the legal memoranda drafted by key architects of the Bush administration’s legal policy, including Jay Bybee and John Yoo, on the treatment of detainees. The deeply flawed legal opinions proffered by these former OLC officials created a ‘golden shield’ that sought to protect from scrutiny and prosecution the Bush administration’s torture of detainees in U.S. custody. In drafting and signing these unsound legal analyses, OLC attorneys sanctioned torture, contrary to our domestic anti-torture laws, our international treaty obligations and the fundamental values of this country.

    “I have serious concerns about the role each of these government lawyers played in the development of these policies. I have said before that if the Judiciary Committee, and the Senate, knew of Judge Bybee’s role in creating these policies, he would have never been confirmed to a lifetime appointment to the federal bench. The right thing to do would be for him to resign from this lifetime appointment.

    “As a United States Senator, as a former prosecutor, and as an American citizen, I am offended by the premeditated approach taken by former high-ranking officials in the Office of Legal Counsel in constructing the legal underpinnings of seriously flawed national security policies.”

    # # # # #

    NOTICE OF COMMITTEE HEARING

    The Senate Committee on the Judiciary has scheduled a hearing on “The Office of Professional Responsibility Investigation into the Office of Legal Counsel Memoranda” for Friday, February 26, 2010, at 10:00 a.m., in Room 226 of the Dirksen Senate Office Building.

    By order of the Chairman.

    # # # # #

    • Hmmm says:

      Huh. Leahy stirs. Will he also stir w/r/t Amerithrax?

      Simple ignorant question: Can Bybee be recalled, or are { resignation, disqualification-by-conviction, retirement, incapacity, death } now the only ends for his tenure?

    • fatster says:

      Thanks so much for this.

      The Ivins “conclusion”, Cheney on the tee vee talking about his role in torture greeted with resounding official silence, violence and threats of more coming from the tea-bagger et al crowd, and now this. I’ve just been sitting here stunned, sensing despair creeping in, but those announcements helped restore a modicum of balance.

      And, thanks to MadDog, too @ 37. At least there are still some in DC who can be counted upon to do the right thing. If only they were in positions of power rather than the lackeys who seem to be most everywhere.

  8. MadDog says:

    Page 166 (159 actual) in the Final Report:

    …Our view that the memoranda were seriously deficient was consistent with the comments made by some of the former Department officials we interviewed, even though those individuals would not necessarily agree with some of our findings in this matter. Levin stated that when he first read the Bybee Memo, “[I had] the same reaction I think everybody who reads it has – “this is insane, who wrote this?” Jack Goldsmith found that the memoranda were “riddled with error,” concluded that the key portions were “plainly wrong,” and characterized them as a “one-sided effort to eliminate any hurdles posed by the torture law.” Bradbury told us that Yoo did not adequately consider counter arguments in writing the memoranda and that “somebody should have execised some adult leadership” with respect to Yoo’s section on the Commander-in-Chief powers. Mukasey acknowledged that the Bybee Memo was “a slovenly mistake,” even though he urged us not to find misconduct

    (My Bold)

    • MadDog says:

      And from the immediately preceeding paragraph:

      We did not attempt to determine and did not base our findings on whether the Bybee and Yoo Memos arrived at a correct result. Thus, the fact that other OLC attorneys subsequently concluded that the CIA’s use of EITs was lawful was not relevant to our analysis. Rather, we limited our review to whether the legal analysis and advice set forth in the Bybee and Yoo Memos were consistent with applicable professional standards…

      (My Bold)

      Other OLC attorneys subsequently concluded that the CIA’s use of EITs was lawful?

      Who would be these other OLC attorneys? And WTF about the rest of the DOJ including the AG?

      • bmaz says:

        Well, and remember, subsequent considerations occurred under different circumstances in light of legislation AND the fact that the memos were in existence; so this is a total throwaway line.

  9. MadDog says:

    From page 131 (127 actual) of the First Draft:

    …(U) As discussed below, our review of the Bybee Memo and the Yoo Memo revealed numerous failures of scholarship and analyssis resulting in the violations of Rules 1.1 and 2.1. While it may be that no single one of those failures, considered in isolation, would compel a finding of less than competent representation, we concluded that the many instances of unsupported arguments, incomplete analysis, failure to discuss adverse authority, and mischaracterization of precedent compelled the conclusion that the authors of the Bybee Memo and the Yoo Memo failed to meet their obligations under Rule 1.1 and thus committed misconduct.

    (U) We also found evidence that the authors of the Bybee Memo and the Yoo Memo tailored their analysis to reach the result desired by the client. In many instances the authors exaggerated or misstated the significance of cited legal authority, failed to acknowledge or fairly present adverse authority, took inconsistent approaches to favor the desired result, and advanced convoluted or frivolous arguments. Accordingly, we concluded that they also violated their duty under Rule 2.1 to provide a straightforward, candid and realistic assessment of the law

    (My Bold)

    • Hmmm says:

      We also found evidence that the authors of the Bybee Memo and the Yoo Memo tailored their analysis to reach the result desired by the client …who then appointed one of them to a friggin’ lifetime job.

      Fixed!

  10. JThomason says:

    While the final report by the department’s internal watchdog, the Office of Professional Responsibility, found that attorneys John Yoo and Jay Bybee engaged in professional misconduct, top DOJ official David Margolis overruled that finding in a memo to Attorney General Eric Holder.

    Margolis, associate deputy attorney general, says in the 69-page memo that he did not find OPR’s definition of misconduct persuasive. And he blocks the agency from referring the matter to state bar disciplinary authorities where Yoo and Bybee are now licensed. Yoo is a Berkeley law professor and Bybee is a federal judge in the Ninth Circuit Court of Appeals.

    TPM

    • rosalind says:

      PDF266 OPR Final: Conclusion

      Based on the results of our investigation, we concluded that former Deputy AAG John Yoo committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.

      We found that AAG Jay Bybee comitted professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.

      Footnote 211: Pursuant to Department policy, we will notify bar counsel in the States where Yoo & Bybee are licensed.

      (emphasis mine)

      Margolis may have saved their butts, but it looks good in print and perpetuity.

      • JThomason says:

        It would seem like that such a referral would not have to be limited to strictly the purview of the DOJ. Any lawyer having this knowledge and licensed in the pertinent jurisdictions would have the duty to report. In other words I am not sure there is properly any institutional restraint on the ethical requirement to report.

    • bobschacht says:

      Well, I guess this shows that Margolis’ ethical standards correspond roughly with the public conception of lawyers as amoral sleazebags. Too bad he decided not to choose a higher standard.

      Bob in AZ

  11. timbo says:

    When will the law be applied to the thugs and tortures, the lawyers, etc, who made this happen to human beings? Seriously, someone really needs to go back and look at Justice Jackson’s rulings at Nuremburg…and the subsequent treaties that the United States signed AND RATIFIED. Seriously, this was not “flawed judgement” but a criminal conspiracy to circumvent the Laws and Legal Obilgations of the United States with regard to various federal laws and international treaty obligations.

    Just yesterday, the former Vice President of the United States went on TV and said he condoned and promoted the use of waterboarding of prisoners within the control of United States personnel. This is a violation of various treaties and laws on its face. And what is the DOJ and the American Federal Government doing about it? Nada so far. I do hope that someone, somewhere in the world, takes these violations of human decency and treaty obligations seriously. Seriously.

  12. rosalind says:

    (using ew’s page # system) PDF202 in OPR Final:

    One of Yoo’s comments on an early draft of the Bybee Memo indicates that the authors knew the Israeli court’s opinion did not provide direct support for their position. In his comments Yoo wrote to [name blacked out] “isn’t there some language in the opinion that we can characterize as showing that the court did not think the conduct amounted to torture?” [name blacked out] responded, “Unfortunately, no.”

  13. maryo2 says:

    Draft 1 PDF 10

    I wonder if Sen. Wyden was led to believe that the classified opinion was an addendum to the EO or if the author (Mayer) just used the word addendum instead of the word opinion. I wonder if Congress (Wyden) was intentionally misled about the document’s provenance to avoid oversight.

  14. rosalind says:

    Did we know Yoo’s emails had been disappeared? PDF11 OPR Final

    Footnote 3: OLC initially provided us with a relatively small number of emails, files, and draft documents. After it became apparent during the course of our review that relevant documents were missing, we requesed and were given direct access to the e-mail and computer records of [name blacked out], Yoo, Philbin, Bybee, and Goldsmith. However, we were told most of Yoo’s email records had been deleted and were not recoverable. Philbin’s email records from July 2002 through August 5, 2002…had also been deleted and were reportedly not recoverable.

    (emphasis mine)

    • Hmmm says:

      There was an awful lot going on from July 2002 through August 5, 2002, say the timelines:

      * From “Disappearing White House Emails Timeline”, all we find is this:

      Between 2002 and 2003: White House converts from Lotus Notes to Microsoft Exchange.

      * From “Torture Timeline”:

      June 26, 2002: Third draft of Bybee Memo drafted.

      July 1-2, 2002: JPRA conducts two-day training for CIA officers. Approved JPRA-techniques at the time include, “body slaps, face slaps, hooding, stress positions, walling, immersion in water, stripping, isolation, and sleep deprivation, among others.” The training included a demonstration of waterboarding. Two CIA lawyers explained that officers could use “all forms of psychological pressure discussed and all of the physiological pressures with the exception of the ‘water board.’”

      July 8, 2002: Fourth draft of Bybee Memo; first one shared outside of OLC.

      July 10, 2002: Date of first interrogation report from Abu Zubaydah cited in 9/11 Report.

      July 11, 2002: Chertoff briefing on Bybee memo.

      July 12, 2002: Yoo meets with WHCO Gonzales–and probably Addington and Flanigan–on draft.

      July 13, 2002: CIA OGC (Rizzo?) meets with Bellinger, Yoo, Chertoff, Daniel Levin, and Gonzales for overview of interrogation plan and for briefing of Bybee Memo draft. Yoo writes initial okay for torture. Chertoff tells Yoo to draft letter saying DOJ won’t pre-decline to prosecute before actions.

      July 17, 2002: Tenet met with Condi, who advised CIA could proceed with torture, subject to a determination of legality by OLC. Yoo “No pre-declination” letter drafted BUT NEVER SENT.

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

      July 24, 2002: OLC advises CIA that Ashcroft concluded proposed techniques were legal. Date of Abu Zubaydah’s psychological profile.

      July 26, 2002: OLC tells CIA waterboarding is legal. CIA begins to waterboard Abu Zubaydah.

      July 31, 2002: DIA issues second report doubting al-Libi’s confession of Iraq-al Qaeda ties.

      August 1, 2002: “Bybee Memo” (written by John Yoo) 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.”

      * From “Torture Document Dump”:

      OLC Memos:

      August 1, 2002: Yoo Letter to Gonzales

      August 1, 2002: Bybee One Memo

      August 1, 2002: Bybee Two Memo

      March 14, 2003: Yoo DOD Torture Memo

      (There was a lot going on in “The Ghorbanifar Meetings Timeline” around then too, FWIW.)

      Oh yeah, and from “Warrantless Wiretap Memos Timeline”:

      March 28, 2003: Jay Bybee sworn in to Ninth Court. Addington and Gonzales try to appoint Yoo as his replacement, but Ashcroft refuses. Ed Whelan Acting AAG.

      Charming, that last.

          • Hmmm says:

            Probably OT, but I just noticed — That’s also .exactly. when the Hatfill stuff was happening… apt search on 6/25/2002, Ashcroft vs. Hatfill stuff & Princeton mailbox in August, etc. Quelle coincidence.

        • MadDog says:

          A couple sections in these documents to reference for your Torture Timeline update:

          Pages 196-197 (192-193 actual) in the First Draft has “Office of Legal Counsel’s Memoranda Timeline” charts.

          Pages 273-274 in the Final Report has a Attachment D – Chronological List of Office of Legal Counsel’s Memoranda on the Issue of Enhanced Interrogation

      • MadDog says:

        Both you and Rosalind seem to be referring to the final sentence in Footnote 3 (it is the same in both the drafts and the final):

        …Although we were intitially advised that Goldsmith’s records had been deleted, we were later told that they had been recovered and we were given access to them.

        (My Bold)

        From the way I’m reading both that footnote and the documents themselves, the recovery was only for Goldsmith’s stuff. Yoo and Philbin’s stuff were gone and evidently not recoverable.

      • MadDog says:

        And I would note the case of the missing DOJ emails is as bad, if not worse, than that of the missing White House emails.

        I can understand how Yoo and Philbin deleted their emails from their own Sent folders, but ask yourself how is it possible that Yoo and Philbin’s emails were deleted…from the DOJ email archiving process?

        • emptywheel says:

          It doesn’t make it better, but rememebr that we also lost the State emails related to the Plame outing.

          When I asked some smart people they said that the rules fo rAgencies and PRA are different, so that the disappearances, while suspicious, were not easy to go after.

        • timbo says:

          Remember those documents that Alberto Gonzalez was carrying around? He wasn’t the only person carrying around things they should not. Further, do the documents make clear how the opinions were compartmentalized and who used those memos to influence policy? Because that’s the main thing–who tried to get these bad opinions so they could do illegal acts. Getting a legal opinion is irrelevant if you subsequently break the law–the problem is that a lot of criminals, thugs, and apparently American politicians and corporations think that if they have an excuse from their lawyer(s) that they’re no longer culpable. That is not how the law is supposed to work at all and frankly I hope that there is some change in the attitude of the courts so that civil suits can move forward against all these criminals so that at least they end up penniless. But, alas, I’m not holding my breath to see that happen given the collusion to subvert the law by every branch of our government and the people who control it.

  15. MadDog says:

    From page 191 (187 actual) of the First Draft:

    …(TS)[Redacted…probably the SCI nomenclature of “GST”]In addition, in considering whether the use of EITs is “arbitrary in the constitutional sense,” we believe the failures as well as the alleged successes of the program should have been considered. [Redacted paragraph]…

    (My Bold)

    I’m guessing the redacted paragraph describes the referenced “EIT failures”

  16. bobschacht says:

    Rachel, appearing lead-off tonight on MSNBC, didn’t mention the OPR release at all, but Keith Olberman (batting cleanup tonight) will have a segment on it.

    Bob in AZ

  17. scribe says:

    In the cover memorandum, I note that there were prosecutorial declinations related to the interrogations of various individuals

    “For example, during the course of its investigation, OPR reviewed prosecutive declinations regarding the interrogations of certain detainees, but I have not examined its analysis of those issues.”

    Margolis memo at 2

    So, in other words, there were multiple cases of interrogations of specific detainees’ interrogations referred to DoJ for prosecution, all of which (given that there have been no torture prosecutions, logic compels that “all” of them) were declined for prosecution. Someone reognized that the treatment dealt out to multiple detainees transgressed the law, called the cops, and got nothing back.

    Thus, we have a whole sweater-full of loose ends to pull on:

    Who were the detainees whose treatrment led to someone calling the cops?

    Who were the people accused of violating the law?

    Which laws were they accused of violating?

    Who passed the reports of alleged violations to DoJ and under what procedure (Many crimes don’t require DoJ approval to prosecute. The local US Attorney can make that decision all on his own.)?

    Who at DoJ (and elsewhere) was involved in deciding that these crimes would go unprosecuted? What standards were applied? Who created those standards?

    Who made the ultimate decision to not prosecute?

    What happened to the people who had the temerity to report the torture as alleged crimes?

    Interestingly, the decision that no one committed unethical acts in drafting this would seem to indicate that there are no “open” investigations which could be compromised by disclosing the answers to these questions (if someone were to, say, ask these ugly questions in a FOIA request).

    My guess is that the answer to who is “Gonzo and Addington, the latter’s hand up the former’s puppet-ass” and the “what happened to” is “they are now out of the government service”.

    Also, looking at the timing which Margolis lays out in detail, I get the sense he was slow-walking the review so as to get it done after the change of administrations and that Mukasey amped up the pressure to get it done before-hand. But I could be all wet on that. I’m presently obsessed with the lasagna I made….

    • emptywheel says:

      I could be crazy. But I suspect there’s a 1-to-1 correlation between those slotted for indefinite detention and those whose referrals for torture prosecutions were killed by this.

      • scribe says:

        You’re not crazy.

        OT: KO reports that the Teabugger Leader O’Keefe was at CPAC to receive an award, with permission from his “parole officer”.

      • scribe says:

        To be really clear.

        It seems crystal-clear to me that Margolis tells us there were multiple interrogators referred to become criminal defendants, because of the way the interrogators interrogated the captives. And the prosecutions of the interrogators for the interrogators’ crimes, were killed by DoJ.

        I am left to ponder the fate of Wilhelm Stuckart, a German lawyer who was a prime drafter of the Nuremburg Race Laws. He basically got off in the post-war war crimes trials, and then someone whacked him a few years later, though they made it look like a traffic accident.

    • MadDog says:

      It would seem the folks whose prosecutions were declined were CIA and/or CIA contractors. From page 195 (191 actual) in the First Draft:

      …(U) We recommend that, for the reasons outlined in this report, the Department reexamine the declination decisions made with respect to potential criminal prosecutions referred to the Department by the CIA…

      And I’m guessing these prosecution declinations are in fact those that AG Holder told John Durham to re-review.

      • scribe says:

        OK, those CIA personnel would comprise some part of the set of people the prosecution of whom was declined. But we do not know what other personnel (if any) comprise the remainder of that set.

        In other words, if the set of persons whose prosecutions were declined is “A”,
        and the set of CIA people whose prosecutions were declined is “C”,

        then “A” => “C,
        and “A” = “C” + “B”, where “B” is a set of people whose identities/jobs are currently unknown to us.

  18. Peterr says:

    I’ve been bouncing between watching the US men beat France in curling and reading the Bybee response to the final draft. It reads less like a legal document and more like a political/PR hit piece. Consider this paragraph from pdf p. 8:

    And then there is OPR’s finding of recklessness. OPR does not cite a single recklessness case from any jurisdiction. Not one. As Judge Bybee informed OPR in response to its draft, the Supreme Court recently held that the adoption of a plausible but erroneous interpretation of an unsettled question of law could not be reckless as a matter of law. Safeco Insurance Co. of America v. Burr, 551 U.S. 47 (2007). OPR’s response? It is a single footnote claiming that the standards established in Safeco are irrelevant because the statute at issue there .”requires willfulness to establish civil liability” while OPR’s standards only require “recklessness.” Report at 19 n.19. Here is what the Supreme Court actually held: “[R]eckless action is covered” by the civil liability provision at issue because “the standard civil usage” of “willful” means “reckless.” 551 U.S. at 52,57. The Court’s entire analysis of the conduct at issue there, i.e. adoption of an erroneous interpretation of the law, was assessed solely with reference to “the common law understanding” of the concept of “recklessness.” Id at 69. Sanctions for OPR counsel anyone?

    Bybee and his lawyer know at this point that all they’ve got left is political pushback. You don’t snark like this in a legal argument unless it’s in the footnotes, and even in the footnotes there is a certain decorum that is maintained as you slip the shiv into your opponents. Here, the authors simply mock the OPR report.

    I think they are very nervous.

    Speaking of missing citations, has anyone seen a mention of Youngstown yet?

    • Hmmm says:

      I’m no attorney, but that reads as though he’s intentionally (not to mention knowingly) trying to confuse uneducated readers between the civil liability standard (which he cites but isn’t relevant) vs. the professional conduct standard (which OPR correctly applied). If that’s right, that’s both kinda despicable and kinda peculiar — a dogwhistle that they’re thinking ahead to civil suit and trying to discourage any filing of same?

      • Peterr says:

        Or they are thinking ahead to the possibility of impeachment.

        There’s no statute of limitations for impeachment, and the whole tone of the Bybee response is political. See this again from p. 8 (emphasis added):

        Department. Advice on the most difficult legal questions of our time will become watered down, equivocal, queasy, and useless. Dissent and debate — because they become after-the-fact evidence of recklessness — will be discouraged. Supervisors will be unable to rely on the work or advice of the very attomeys they must rely upon. And Department officials will be understandably paralyzed by the fear that the next Administration will disagree.

        Outside the Department of Justice the consequences will be worse. The OPR report and everyone who participated in it will be subjected to the same scrutiny applied to Judge Bybee and the same legal standard it purports to adopt. Ethics charges and bar complaints will become the licensed currency of political disagreements. And while the Department of Justice can push this snowball down the hill, its size, speed, direction, and ultimate stopping place will be beyond the control of the Department or anyone in the Executive Branch.

        The country does not want or need a debate in which the question is whether the Office of Legal Counsel in the prior administration or the Office of Professional Responsibility in the current one acted improperly, with partisan bias, and political objectives. Respectfully, the time to stop this process is now.

        Shorter response: We need to look forward and not backward.

        Note also the sentence in bold. They are saying to the executive branch, “don’t throw Judge Bybee under the bus and let this move toward impeachment, or every Congress will come after every administration in the future.” Again, this points to the “we need to look forward and not backward” mindset.

        • Hmmm says:

          I’m sure you’re right. The only thing I would add is that that passage also reads like a threat to the current Exec Branch for its extraconstitutional activities, not only the previous one. Hence a motivation for PBO to look forward and not backward. So when Bybee says to the Obama administration (as you aptly paraphrase) “We need to look forward and not backward,” I can see a possible implied emphasis on the “We” part.

        • cinnamonape says:

          Impeachment can also apply to “Officers of the Court” to my knowledge. While this may prevent Yoo from being disbarred, he could never again serve as an individual of “trust, honor, or profit” under the United States. I supposed he could advise a client outside the Court, or teach at the UC (though without receiving any Federal grants, making recommendations to Federal posts, etc.). That might cut him out of the Directorship of his “Institute” and limit his actions to teaching Year I courses (something he seems to despise).

          • bmaz says:

            Impeachment may lie for judges of the court (Federal), but I do not know about mere “officers of the court”. Article Two, Section 4 states that

            The President, Vice President, and all other civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.

            So Yoo would have to fall under the “other civil officers” clause, and I do not think there is any precedent or cognizable argument that what is essentially a high staffer at OLC, who was not subject to confirmation, is in that category. Bybee obviously because he is a Federal judge, but Yoo I don’t think so.

    • rosalind says:

      Speaking of missing citations, has anyone seen a mention of Youngstown yet?

      Found it! OPR Final – PDF210, esp. footnote 157.

      • Peterr says:

        From the page you cite:

        Bradbury and Goldsmith, as well as commentators and other legal scholars, criticized the Bybee memo for failing to discuss Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952), the leading Supreme Court case on the distribution of government powers between the executive and legislative branches.

        Hmmm . . . “commentators”? You mean like this? and this?

  19. rosalind says:

    wtf? Yoo calls Zubaydah “Boo Boo”??!! PDF63 OPR Final:

    On July 30, 2002, Yoo asked [Name Redacted] by email, “Do we know if Boo boo is allergic to certain insects?”…Although there is no record of a reply by [Name Redacted], the final version of the Classified Bybee Memo included the following statement: “Further, you have informed us that you are not aware that Zubaydah has any allergies to insects.”

    • JThomason says:

      You might not want to fully attribute this to Yoo just yet. We all know who had that certain special fondness for nicknames.

    • cinnamonape says:

      Could this be why they allowed only non-stinging- or d-estinged- insects? As a way of CYA?

      One can de-sting scorpions, BTW…this is precisely what they do in shows like “Fear Factor”.,

      • rosalind says:

        as a recovering cynic fallen off the wagon, i figured they were trying to find something he WAS allergic to.

        and something i flagged last night but didn’t post from Final OPR 50-51: Yoo called the Bybee Memo the “bad things opinion” in an email subject header. [Name Blacked Out] (probably Koester) replied: “I like the opinion’s new title”.

        they are depraved souls.

        (emphasis mine)

  20. bobschacht says:

    Obermann’s segment on the OPR report tonight included an interview with Jonathan Turley, but neither one mentioned the hearings scheduled by Conyers and Leahey, proving once again that Emptywheel is on top of the news!

    Bob in AZ

  21. rosalind says:

    anyone know why the female who worked with Yoo on drafting the memos has her named blacked out throughout the OPR Final?

    on PDF56 in Footnote 53, unless there are two “hers” being discussed, this may be her. Koester.

    A google search brings up a Jennifer Koester who “served as the Special Assistant to the General Counsel of the Department of Defense, where she worked on national security, international law, and constitutional law matters. From 2002-2003, she was an attorney advisor in the Office of Legal Counsel at the Department of Justice, working on issues in national security, separation of powers, as well as other constitutional law issues.

    (emphasis mine)

    • emptywheel says:

      We can cross–reference it–there’s another reference to what I suspect is her in one of the earlier redacted reports (I think in CIA-DOJ correspondance). But I do think Koester is the one.

      • MadDog says:

        …But I do think Koester is the one.

        Koester it is! Ta to Rosalind for surmising it first!

        Confirmed on page 27 (23 actual) of the OPR 1st Draft Report:

        …(U) On July 8, 2002, Yoo and [redacted…probably Koester] had produced a draft that they were ready to give to the White House Counsel, the CIA and NSC for review. On July 11, 2002, Koester provided a copy to the OLC paralegal [redacted] for cite checking, and two meetings were scheduled – with White House Counsel on Friday, July 12, 2002, and with AAG Chertoff, the FBI, CIA and NSC on Saturday, July 13, 2002…

        And do note the order in which Yoo and Koester vetted their draft.

        First, and foremost, with Fredo in the White House Counsel’s office (with Addington and Flanigan probably there to pull the strings making Fredo nod his approval).

    • Peterr says:

      I’m seeing the same kind of odd redaction of underlings in the Bybee response. From pdf p. 12:

      Three exceptionally talented members of Judge Bybee’s office (all former or future Supreme Court law clerks) were assigned to work on the response to the CIA: [redacted — looks to be simply a name by the length of the black line] John Yoo, the lead deputy who was “the resident expert in the OLC on foreign policy and national security issues, and Patrick Philbin, who also had substantial experience in this field and served as the “second Deputy.”

      Why would a DOJ staffer’s name be redacted?

      • scribe says:

        Because in ethics investigations the involvement of people who are tangential – not themselves alleged to have been unethical – are irrelevant. I’m not saying that’s the reason, but it is a possible one. You have to remember that attorney ethics cases are considered quite sensitive in every jurisdiction and there is a threshold which an allegation has to surmount before the identity of the person accused (or the existence of the inquiry or complaint) can even be revealed.

          • scribe says:

            Disgruntled litigants and ex-clients often think they can trash the lawyer who done them wrong by bringing a meritless ethics charge which they think everyone will know about, then bitch and moan when they find out about the confidentiality applied to those first-level complaints, finding out that confidentiality has thwarted their defamatory intent.

        • Peterr says:

          Here we’re not (necessarily) talking about someone accused of something, but of someone who took part in official work of the office. Unless Bybee’s office had some undercover lawyers working for it, merely holding a position in the OLC is not a matter of government secrecy.

          Similarly, merely being mentioned in an OPR report is no sin. There is a major difference between being accused of being an accomplice to a crime and being a witness to a crime.

          Finally, it is farcical that Bybee’s lawyers would describe someone as “exceptionally talented” as a way of implying that Bybee is above reproach, and then have that person’s name redacted.

          Unless, of course, merely being identified as working on this project is ethically dubious (let alone criminal). At that point, I can see where the lawyer involved might not want to be identified. But that brings us back to where I started. If I was a driver for certain unsavory characters, who told me to pick them up outside a bank at a certain time, and they jumped into the car while firing guns back at the bank, and were later arrested, I might be somewhat nervous about being named as their personal driver.

  22. JasonLeopold says:

    Here’s a depressing statement from Sheldon Whitehouse.

    “Mr. Bybee and Mr. Yoo may keep their law licenses, but they will not escape the verdict of history. I want to commend Attorney General Holder for handling this highly-sensitive issue in an apolitical and transparent fashion. He accepted the recommendation of a career Justice Department attorney, which his predecessor was unwilling to do, and he provided the OPR report to Congress, which his predecessor refused to do.”

    “The documents made public today shed additional light on the shoddy legal foundation for the Bush Administration’s use of torture, which was unlawful, immoral, and made America less safe,” said Whitehouse. “Attorneys at the Office of Legal Counsel are expected to meet the highest standards of excellence. As the Department’s report concludes, the OLC lawyers who authored the torture memos used at best ‘poor judgment’. The fact that the OPR initially concluded that this poor judgment amounted to professional misconduct is a sad sign of a tarnished era for the Department. Americans deserve better.”

    Whitehouse continued, “I praise Attorney General Holder for providing these materials to Congress and for continuing the hard work of repairing the damage done to the Department of Justice. I look forward to more fully examining these issues at the Judiciary Committee’s hearing next week.”

    • bmaz says:

      Actually, that was Durbin’s portion of the joint statement wasn’t it? Either way, to be expected; DOJ quite clearly has a protect their own “Blue Line” like cops do. Whitehouse has exhibited very clear law and order “Blue Line” mentality in several notable instances where many people were expecting something different. I do not think he is on nearly the wavelength on these kinds of issues that many people blithely do because he seems progressive on other issues.

    • bobschacht says:

      Attorneys at the Office of Legal Counsel are expected to meet the highest standards of excellence.

      Well, the OPR report (Margolis ed.) pretty much destroys that canard.

      Bob in AZ

      • JasonLeopold says:

        You said it, Bob. The poor judgment conclusion makes it sound like Yoo was stopped by the cops for driving without a headset while talking on his cell phone. That’s my definition of “poor judgment”

        • PJEvans says:

          I’d say an example of poor judgement is the clown I saw a couple of weeks ago, making a 3-point u-turn in a narrow street, while talking on a hand-held cell phone. (Or any of the people I’ve heard discussing family or confidential business stuff, in a public location, apparently in the belief that no one else can hear them.)

          AFAICT, cell phones shut off all higher brain functions. After seeing people completely ignore everything going on around them while using a cell phone, I think cell phone use should be restricted to people who are sitting down and doing nothing else.

      • PJEvans says:

        Certainly Margolis’s actions destroy any claim to excellence he might have had.
        OTOH, if he wants to claim excellence in brown-nosing, he does have some qualifications.

    • Leen says:

      “but they will not escape the verdict of history”

      As if the “verdict of history” makes these criminals hestitate. Hell Cheney is out undermining this administration and this guy was part of the team that created, cherry picked and desiminated false pre war intelligence, invaded Iraq based on those lies, sent thousands of Americans into Iraq based on those lies, piles of dead and injured in Iraq, outed Plame. Come on Sheldon may care about the “verdict of history”. These thugs could give a rat’s ass about the “verdict of history” The only thing they care about are their own asses

  23. MadDog says:

    …PDF61: If one child dies and I find out you knew something about it I will slit your throat…

    From that same page 61 in the First Draft:

    …(TS)[Redacted, again probably the SCI nomenclature of “GST”] According to the CIA OIG, an attorney from the CIA General Counsel’s Office review the videotapes of Abu Zubaydah’s waterboard interrogation and concluded that the applications complied with the guidance obtained from the DOJ. However, the CIA OIG investigators who reviewed the same tapes reported that the technique used on Abu Zubaydah was different from the technique used in SERE training and as described in the Classified Bybee Memo. The report noted that unlike the method described in the DOJ memorandum, which involved a damp cloth and small applications of water, the CIA interrogators continuously applied large volumes of water to the subject’s mouth and nose. One of the psychologists involved in the interrogation program reportedly told the CIA OIG that the technique was different because it was “for real” and was therefore more “poignant and convincing.”

    (My Bold)

  24. JasonLeopold says:

    This may have been cited upstream, just in case though:

    Page 67 first report:

    On January 28, 2003, CIA Inspector General John Helgerson called John Yoo and told him that the CIA OIG was looking to the [REDACTED] matter. According to Helgerson’s email message to Rizzo, Yoo “specifically said they feel they do not need to be involved until after the OIG report is completed.” Rizzo responded: “Based on what Chertoff told us when we gave him the heads up on this last week, the Criminal Division’s decision on whether or not some criminal law was violated here will be predicated on the facts you gather and present to them.”

  25. MadDog says:

    …PDF61: If one child dies and I find out you knew something about it I will slit your throat…

    That was said by a CIA “psychologist/interrogator” to AZ. Sounds like Mitchell, but might be Jessen.

    On pages 64-65 of that same First Draft, a CIA psychologist/interrogator (Mitchell again?) again said something very similar to KSM:

    …(TS)[Redacted, again probably the SCI nomenclature of “GST”] The CIA OIG also reported that on one occasion, one of the CIA psychologist/interrogators threatened KSM by saying that “if anything else happens in the United States, ‘We’re going to kill your children.'”…

  26. JasonLeopold says:

    Bmaz, after reading this document or as much as you have read thus far, what the heck do you make of Margolis’ change to the findings/recommendations of state bar referral? How can he possibly have changed this to “poor judgment” and how could Holder have accepted that?

    • bmaz says:

      I am not buying a lick of it; and I would love to see some other OPR reports in other cases where referrals were made to see how they compare. In fact, I would kill for that. I have read the vaunted “Framework” and find it to be plain vanilla and think Margolis, Yoo and Bybee are full of it in their reliance as some kind of explanation/excuse for their distinctions in non-referral.

      And, no, it is just about impossible to fathom any of Ambinder’s suggestions actually materializing. Talk of it? Sure by a couple of chattering clowns like Olbermann or something; but actually go anywhere, no way.

      • Jeff Kaye says:

        Well, you could see those other OPR referrals, except… Margolis cut them off some years ago! so no one could see the reports, or the summaries, even.

      • JasonLeopold says:

        Thanks for the link on OPR framework. I noticed at the bottom of Margolis’ memo he he writes:

        “Beginning in the 1990s, I have been the Department of Justice official who has resolved challenges to negative OPR findings against former Department attorneys, most often in the context of proposed bar referrals.”

        Sounds like he is saying he has white washed many other reports. Maybe Jeff found some additional info in that area.

            • bmaz says:

              Well we are gonna give the SJC the opportunity to ask a whole bunch of questions by serving them on a platter; of course they are going to have to have the desire too….

            • Loo Hoo. says:

              And I’m wondering whether Leahy or Conyers will find out about what scribe posted above at 60:

              Who were the detainees whose treatrment led to someone calling the cops?

              Who were the people accused of violating the law?

              Which laws were they accused of violating?

              Who passed the reports of alleged violations to DoJ and under what procedure (Many crimes don’t require DoJ approval to prosecute. The local US Attorney can make that decision all on his own.)?

              Who at DoJ (and elsewhere) was involved in deciding that these crimes would go unprosecuted? What standards were applied? Who created those standards?

              Who made the ultimate decision to not prosecute?

              What happened to the people who had the temerity to report the torture as alleged crimes?

    • bobschacht says:

      I have the same question. Credits to Holder for publishing the separable parts so we can see what the doc was before Margolis got hold of it.

      Margolis may live to rue his role in all this.

      Bob in AZ

  27. JasonLeopold says:

    Ambinder mentioned this. Anyone think this is likely?

    What happens now? Expressions of outrage, and calls for Eric Holder to appoint a special prosecutor based on the OPR findings — which — as noted above — Margolis cannot challenge. The OPR report is official; it is a weird quirk of our system that another official gets to decide whether the after-action report, as it were, reflects the action itself. Efforts to impeach Judge Jay Bybee and urge the California and DC bar associations to rescind Yoo and Bybee’s status will no doubt be stepped up.

  28. rosalind says:

    from the OPR Final in the section “The CIA OIG Report & The Bullet Points Controversy”, PDF121, Footnote 90 reads:

    OLC’s files also include a copy of a January 2004 draft of the CIA OG Report, with CIA OGC’s comments. There is no indication of how or when (cough *addington* cough) OLC received this document.

    (emphasis & editorial commenting mine)

  29. Jeff Kaye says:

    Have not had time to digest it all. But one document, worth adding in, noted on pg. 102 of first draft, “Background paper on CIA’s combined use of interrogation techniques”, provided by [redacted] to Levin, is an extraordinary document. PDF 19 pgs.

    I think Jason may have written an article based on this before. We don’t have too many of these CIA documents, so what we do have gains in importance.

    I’m sure others have noted the amount of redactions.

    I’d note the prominence (shamefully so) of CIA psychologists and medical personnel (and not just Mitchell/Jessen). There was the author of the psych eval, for instance, on AZ, and the other CIA psychologists said to report that the EITs from SERE were non-harmful (probably the OTS doc referred to by the CIA OIG).

    Overall, the amount of coordination of so-many top DOJ/WH/DOD personnel in the torture program, despite their occasional disagreements, is stunning. Nothing short of a Nuremburg-style tribunal will be able to address this.

    • emptywheel says:

      Jeff

      Also note that CIA originally tried for 12 techniques. The 10 that got approved, plus the diaper, plus one more that remains redacted.

      Two best guesses for teh redaction are water dousing (which doesn’t seem to fit the redaction, but we know they approved that first chance they got) or drugs.

      • Jeff Kaye says:

        Yes, I saw that surmise in your post. It could be the drugs. Yoo certainly made a point about them in his memos. Why do that if it wasn’t something that was being asked about?

        Great job scanning/reading and reporting on the doc. A huge help for us.

        The drug stuff is certainly there. I don’t know if you noticed, since I buried it in the recent Truthout article (which I’ll repost at Seminal), but the OIG investigation on drugging of DOD prisoners is still ongoing.

  30. rosalind says:

    in addition to crushing a child’s testicles, Yoo was down with the President as C-I-C annihilating a village of civilians. OPR Final PDF70:

    Q: What about ordering a village of resistants to be massacred?…

    A: …Certainly, that would fall within the C-I-C’s power over tactical decisions.

    Q: To order a village of civilians to be [exterminated]?

    A: Sure.

    That “sure”, it’s so…what is the word again? Oh yeah, poignant.

    • PJEvans says:

      I can think of some other words to describe that one.
      The first one that comes to mind is ‘Lidice’.
      The second is ‘Nuremberg’.

  31. MadDog says:

    From the ACLU’s blog:

    …Included in the OPR report is this quote from Yoo: “I had actually thought that we prohibited waterboarding. I didn’t recollect that we had actually said that you could do it…”

    (My Bold)

    I’ve not located that quote in the documents yet, but I’m looking for it. Wish the HJC had released “text-searchable” versions of these documents.

    • rosalind says:

      argh. i read it but didn’t write down the page. Yoo basically says the reality of the waterboarding did not match his concept of the water EIT on the official memo, hence his “surprise”.

    • emptywheel says:

      I’ve got it up in the thread somewhere. Yes, It’s lovely.

      Oh don’t mind me. I can’t remember whether I authorized torture this morning or rearranged my sock drawer, though I THINK it was the latter.

      • MadDog says:

        Not that I know of. The folks over at the HJC should have scanned it with a “text searchable” option enabled, but perhaps the DOJ OPR was the culprit and only gave the HJC this scanned “image” version.

        You’ll have to make do like the rest of us poor souls and hand-type any part you want to quote. *g*

      • ffein says:

        If you have Acrobat Professional, on the Document menu, choose “Recognize Text Using OCR” (a submenu item under the “OCR Text Recognition” choice). you can then choose to do the whole document, or by page. I tried it on a couple of pages, and then I was able to select the text, copy, then paste it. It’s probably fastest to choose the pages you want and just do them rather than whole documents. But I didn’t try that.

      • MadDog says:

        Most excellent!

        Please pass them onto bmaz since he has publishing privileges here at EW and I’m guessing he’d be more than willing to post them for all of our (and his) benefit.

        In fact, I’m guessing he’ll jump on the chance to get them from you.

      • bobschacht says:

        I saved the PDFs to disk and opened them in Acrobat on a Mac and was able to copy/paste and search.

        Which version of Acrobat do you have? I suspect that the paid version of Acrobat on a Win platform would allow the same. I will conduct an experiment.

        Bob in AZ

        • ffein says:

          I have Acrobat Professional running on Windows. I downloaded one of the documents. But I wasn’t able to select text until I ran “Recognize Text Using OCR”. Then almost instantly I was able to select text, copy/paste, on the pages on which I ran that command.

    • burnt says:

      Ask and ye shall receive.

      I have posted a searchable version of the final report here. It is a bit large at 125MB because I was not paying attention to the sample dpi.

      I am working on the first draft now which should be more reasonably sized. I should have searchable versions of all the documents up by early afternoon.

      If someone wants to grab these docs and mirror them that would be great.

  32. rosalind says:

    Yoo fibber you! Discussing the “Bullet Points” – OPR Final PDF 238, Footnote 191:

    Yoo denied to Goldsmith that he authored or approved the Bullet Points. We found, however, that the Bullet Points were drafted in part and reviewed in their entirety by Yoo and [name redacted] and that neither of them expressed any disagreement with their contents.

    • emptywheel says:

      Just as a reminder, these “bullet points” are what is called the “legal principles” in the CIA OIG report. Here are some posts I did on those:

      Here
      Here
      Here
      And yes, from what I’ve read so far, I was right on the money in reading that Yoo was freelancing on these.

      • rosalind says:

        thanks, ew. i’ve been figuring 95% of the stuff i’ve been posting has already been covered in your posts.

        and especial thanks for reading the torture tea leaves so well, predicting the imminent document dump in light of Darth doing the CPAC Rag & the WAPO staffing up their Torture Apologia Dept.

        • emptywheel says:

          Oh, at that point I had been told OPR was coming. Wasn’t sure whether to believe it yet, but it all made sense so it gave me confidence I was hearing right.

  33. Hmmm says:

    Leave it to me to restate the obvious, as per norm, but Yoo looking more the Addington mole every minute here.

  34. emptywheel says:

    Also, for those who haven’t refreshed, consider this timing.

    Goldsmith gets the “bullets/Legal Principles” on March 2, when CIA was asking for a reaffirmation in anticipation of the CIA IG Report. It was the first he ever saw the doc.

    Then in “early March” DOD comes to him, having been told not to rely on Yoo memo, asking to do one of the 4 things (I’m guessing they wanted to use it on Hassan Ghul, who was still in DOD custody but would be put in CIA custody shortly thereafter and for whom they got approval for two of those techniques). Goldsmith doesn’t want to do it. So he goes to Comey’s house on March 13 to talk him through this stuff.

    March 13, of course, is just days after the hospital confrontation.

  35. MadDog says:

    From page 23 (19 actual) of the First Draft:

    …(U) Email record indicate that the matter was recorded on an OLC log sheet on April 11, 2002, with [redacted…probably Jennifer Koester] and Yoo designated as teh assigned attorneys. The log sheet listed “John Rizzo Central Intelligence Agency” as the client. Yoo provided [redacted…probably Jennifer Koester] with the research he had already done and made a few suggestions about where she should start. He instructed her to determine whether anyone had ever been prosecuted under the torture statute, to check the applicable statute of limitations, and to determine what types of conduct had been held to constitute torture under the Torture Victim Protection Act (TVPA)…

    (My Bold)

    Shorter Yoo: “Sharp criminals always check the Statute of Limitations before they commit the crime, doncha know?”

    • emptywheel says:

      Jeebus, nice catch. I was surprised, already, that he had “research” (that is, waht Addington gave him). But this passage is also crucial bc this is where Yoo/Koester should have found the Texas waterboarding case. But either didn’t (Koester’s fault) or ignored it (Yoo’s fault).

      • JasonLeopold says:

        I wrote about the Texas waterboarding case, as I know others have too. In the trial transcript they referred to it as the water treatment and referred to torture numerous times during the trial.

        One of the the defendants, Deputy Floyd Allen Baker, said during the trial that he thought torture to be an immoral act, but he was unaware that it was illegal. His attorneys cited the “Nuremberg defense,” that Baker was acting on orders from his superiors when he subjected prisoners to waterboarding. He was convicted of civil rights and constitutional violations.

        If you recall, from Bybee’s Aug 1, 2002 memo, he appeared to rely solely on the CAT and wrote in the memo that there were “no cases construing this statute, just as there have been no prosecutions brought under it.”

    • rosalind says:

      heh. Yoo’s attorney was all over Statue of Limitations in Yoo’s Response to the Final Draft (PDF97).

      shorter Ronald D. Rotunda*: Yoo was member of the PA bar, not D.C., the PA Bar Statute of Limitations is 4 years for disciplinary complaints the memo was issued more than 4 years ago so even if he was subject to discipline which he is SO not then it is too late and neaner neaner.

      *paging teh alliteration Hall of Fame…

    • MadDog says:

      Footnote 28 on page 26 (22 actual) of the OPR First Draft Report says that Yoo and Jennifer Koester worked fast on the “Bybee Memo” after that April 11, 2002 official OLC “start”:

      …28 (U) The first draft, dated April 30, 2002, was followed by drafts dated May 17, 2002, June 26, 2002, and July 8, 2002. The July 8, 2002 draft appears to be the first draft aht was distributed outside OLC for comments…

      And since Abu Zubaydah was captured in late March 2002, all of the torture he underwent until the “Bybee Memo” was officially completed had to have occurred on the basis of verbal or “draft” communications from Yoo.

      • bobschacht says:

        And since Abu Zubaydah was captured in late March 2002, all of the torture he underwent until the “Bybee Memo” was officially completed had to have occurred on the basis of verbal or “draft” communications from Yoo.

        “You did what??? OK, we’ll add that to the list. What else you got?”

        The above quote is conjecture. But I suspect that it is too close to true.

        Bob in AZ

  36. JasonLeopold says:

    Margolis memo P. 67 PDF

    III. Conclusion

    The above analysis leads me to conclude the same thing that many others have concluded, to wit that these memos contained some significant flaws. But as all that glitters is not gold, all flaws do not constitute professional misconduct….The bar associations in the District of Columbia or Pennsylvania can choose to take up this matter, but the Department will make no referral.

    P. 69 PDF

    “While OPR’s final report includes additional criticisms of the other memos and letters that it reviewed, its misconduct finding against Yoo is grounded in the identified flaws in the unclassified and classified Bybee memos. See OPR final report at 251-54 [REDACTED]. Many of the criticisms of the other memos and letters derived from the criticisms of the unclassified Bybee memo. Furthermore, OPR did not specifically evaluate whether the legal work in the Yoo memo constituted misconduct separate and apart from the criticisms of the unclassified Bybee memo. For this reason and because OPR’s findings of professional misconduct were based on a standard that was neither known nor unambiguous, I conclude that my poor judgment finding accounts for the entirety of Yoo’s work in the subject memoranda.”

      • JasonLeopold says:

        After reading his memo, I think someone needs to investigate him. Seriously. His attempts to justify his decision fail. He continuously cites passages in the OPR framework that, to me, contradict his reasoning.

        • bmaz says:

          I have been in and out tonight as a result of some family obligations, and have focused primarily on Margolis’ Memo to AG as opposed to detailed reading of the reports themselves; but isn’t that – the Framework – basically really the sum and substance of his basis for downward departure from the professional misconduct finding in the report? I just cannot see how he rationally or logically makes the leaps he seems to make. It is awfully telling.

          • JasonLeopold says:

            Yes. I went through the whole thing and he continuously talks about the framework in explaining his reasons that he overrules previous recommendations. He even quoted a section on page 68 PDF explaining poor judgment that, to me, appears to be misapplied. Very telling indeed.

  37. rosalind says:

    i enjoy the Bybee smackdown on PDF209 in the OPR Final in the Footnote, where they say uhm, sorry no, you can’t cite your own hack opinion in support of your dumbass view of the Captures Clause.

    paraphrasing.

  38. MadDog says:

    …PDF30: Wow. So Yoo send the “how to break the law” letter, drafted on July 13, on July 15. Then Chertoff instructs Yoo to send a letter saying OLC won’t do letters declining proescution before teh fact. But Yoo NEVER SENDS it to CIA.

    PDF31: Note the timeline: Yoo meets with Gonzales and probably Addington and Flanigan on July 16, after Ashcroft has already raised the idea of “advance pardon.” No one will say what was discussed at this meeting. But the next day Yoo “forgets” to send letter deny advance declination to CIA…

    Just getting to this part on page 30 (26 actual) of the OPR 1st Draft Report, and I think this passage from the OPR folks would fit the bill of “pregnant with meaning”:

    …The letter was reviewed and approved by OLC and the Criminal Division on July 17, 2002, but does not appear to have ever been sent to the CIA. The witnesses could not recall why the letter was never sent

    (My Bold)

    Well, duh!!!

    Somebody at DOJ (Chertoff?) woke up and realized that the very existence of such a letter was stone cold, concrete, incriminating evidence of a conspiracy to commit a crime.

    I’m just surprised that Yoo, Chertoff & Co. somehow left a fookin’ copy around for the OPR folks to find.

    • Leen says:

      “I’m just surprised that Yoo, Chertoff & Co. somehow left a fookin’ copy around to find”

      Could barely take it in last night that the re writing of torture laws was simply determined to be “poor judgment”.

      Sure glad you BB(big brains) are committed to the rule of law unlike our so called justice system. This peasant fell into a bit of a depression last night after I heard this announcement. Added to the pile of crimes that the Bush administration has and looks like will not be held accountable for.

      Thousands of dead, injured and tortured bodies. Blackwater killers walk, the Cheney’s teabagging for torture on our T.V. screens.

      Reading through all the comments. Where will all of this end up with Conyers push for hearings? Just another pile of papers that will go on record?

  39. bobschacht says:

    PDF 10: The people who refused to be interviewed:

    * At least 3 CTC lawyers
    * Ashcroft
    * Addington
    * Flanigan

    Do you suppose Conyers or Leahey will subpoena them?

    And after Cheney said that “They did what we told them to do,” why not subpoena him, too, to explain his statement?

    I think the current era is far too reticent about issuing subpoenas to the Pres and Veep. I think our Founding Fathers would have wanted them to be answerable on relevant matters.

    Bob in HI

    • bmaz says:

      No, I don’t think they will be; and if they were, I think Obama would help them assert some kind of privilege or otherwise skate from testifying.

      • bobschacht says:

        Sooner or later, this will become Obama’s Albatross.

        I think perhaps he fears that *prosecuting* would become his albatross; but the way things are building, *not prosecuting* could become just as big.

        Bob in AZ

    • emptywheel says:

      Well, remember, Addington and Ashcroft have already testified to HJC (along with Yoo, who is normally quite chatty). Me, I’m hoping to try for Flanigan to see if we can break the Omerta.

  40. cactusman says:

    Thanks for the yeoman’s work Marci.

    I know I’m naive, but when I saw the titles “Yoo response” and “Bybee response” I didn’t expect a legal team to be providing the response.

    On “Yoo Response 090729”, PDF 25, there’s this:

    Professor Nelson Lund, who served in OLC during the Reagan administration, agrees.
    He has written:
    Like clients ·in private practice, the President is responsible for his own
    decisions, and in fact he has the authority either to make his own legal
    determinations without consulting any particular lawyer or to proceed in
    the face of contrary advice from any lawyer he does consult.

    This argues for the president being able to do whatever he wants (and implies without legal consequence). Why, then, have the OLC at all? In the above context it seems superfluous.

  41. pdaly says:

    I’m looking forward to reading through this document dump.

    Germane to this topic, I found an article in The Nation by Bruce Shapiro who brings out an overarching historical theme to the madness we are seeing in the current document dump. He wrote this in 2004 but it bears repeating:

    “For Rehnquist, the invasion of Cambodia in May of 1970 was a dual watershed. On the one hand, it marked the greatest assertion of expansive presidential warmaking power, crystallized in the white paper [“The President and the War Power,” 1970 Rehnquist, OLC] cited by Bybee. At the same time, protests against the Cambodian invasion led Nixon to centralize the gathering of domestic political intelligence directly in the White House; Rehnquist supported this domestic expansion of executive-branch authority, arguing in court for no-knock entry, preventive detention, wiretaps and other ancestors of today’s Patriot Act.

    The authority of Nixon and his successors was soon curtailed–at least on paper–by reform-minded legislation: the War Powers Act, the Freedom of Information Act, CIA reform, the War Crimes Act and a host of other statutes. And ever since the invasion of Cambodia, a parade of conservative policy-makers–among them Rehnquist, Rumsfeld and Vice President Dick Cheney–have repeatedly sought to regain the expansive presidential power asserted in Rehnquist’s memo.

    [snip]

    The Bush Administration’s memos not only facilitate torture as public policy. Like the Nixon Administration in 1970, they articulate a philosophy of the presidency best described as authoritarian. That is the hidden message of Abu Ghraib.’”

    [bold is mine}.

    This nugget is instructive, too. Rehnquist later transitions from OLC to a Chief Justice:

    Chief Justice Rehnquist, true to form, dissented from the Supreme Court’s ruling granting Guantánamo Bay prisoners access to US courts, although even Rehnquist drew the line at indefinite and unreviewable imprisonment of an American citizen in the Hamdi case

    To take down Yoo/Bybee is to take down Nixon, Rehnquist, Cheney, et al.

    link: http://www.thenation.com/doc/20040712/shapiro

  42. MadDog says:

    I’m gonna have to call it a night, but rest assured I am looking forward to a most interesting weekend here at the old Emptywheel ranch.

    Toodles!

  43. emptywheel says:

    Folks. I’m headed to bed. I’m just halfway through the First draft. It’s gonna be a long weekend. Though I think I’ll take the Margolis memo to fall asleep to.

  44. Jeff Kaye says:

    Thought I’d preview some of where I will be going, not so much on the report itself, but trying to peer behind those blackened-out pages:

    What is not well-known is that both government military research, funded through Ft. Detrick, with the participation of CIA researchers, were involved in studying the “uncontrollable stress” of SERE-style torture in 2002. The actual deleterious effects of such torture were well-known to the military and CIA, who either kept such information from the OLC attorneys (which seems less likely now, given the amount of interaction between Yoo and the others with CIA and military attorneys like William Haynes), or lied about it to them, or they all collaborated in submarining such information.

    When CIA psychiatrist-expert Charles A. Morgan (one of the key researchers in the Ft. Detrick study mentioned above) denied that his research was for anything but PTSD studies, and also denied links to the CIA, going so far as to scrub such attributions from his Wikipedia page, he didn’t count on the fact that online references to his military research, which was not related centrally to PTSD, was available (see long PDF), or that an early draft version of the Intelligence Science Board’s Educing Information report specifically lists him with CIA organizational ties, listed as part of the study’s twelve man committee of interrogation “experts.” (These are documents in my possession, not currently online.) This is a story I will be telling in full in the very near future.

  45. katheriner says:

    I’m not clear on exactly where this document comes from–I just found it on a goodle search–but it appears to be a list of OLC emails which confirms Jennifer Koester’s role: link.

    It appears that she’s since since received the “Office of the Secretary of Defense, Exceptional Civilian Service Award for support to the Secretary of Defense in the War on Terror, October 2002,” clerked for Clarence Thomas, gotten married, and become a partner at Kirkland & Ellis LLP. Truly, a made woman.

  46. pmorlan says:

    Great work, ew and my thanks to the rest of you who have also contributed in the comments section.

    Once I heard about the document dump today there was only one place to go…the emptywheel blog. I’m sure I’ll be logging a lot of reading time here this weekend.

  47. Jeff Kaye says:

    EW, if you see this in AM, I think one possibility is the “Effectiveness memo” is that OTS (CIA’s Office of Technical Services) doc I’ve been talking about since the CIA OIG report said OLC relied in the main on OTS assurances re the safety of the SERE techniques. Possibly also spoke about their effectiveness as well? Speculative, but who else was talking about effectiveness. We know it’s not the JPRA docs, because they’re mentioned elsewhere in the OPR report.

    I asked ACLU to look for this OTS doc awhile back. They didn’t have it, and it’s nowhere in the various lists of withheld memos. Maybe what OPR was allowed to look at but not keep?

    • emptywheel says:

      I’m pretty sure it’s not. I’ve been writing about the effectiveness memo since the Bradbury memos came out. The cotent is, if you can believe it, much crappier than OTS produces.

      • Jeff Kaye says:

        Thanks. I’ll go back and refresh my memory with your work on that. I really appreciate your empiricism, and your work constitutes an amazing database.

  48. JasonLeopold says:

    P. 196 of OPR second draft:

    According to CIA documents, approximately thirty detainees have been subjected to EITs (which Cheney said he personally approved). REDACTED was Al-Nashiri, the third detainee to be waterboarded, who, according to the CIA OIG Report, continued to be subjected to EITs – despite the objections of REDACTED interrogators – because CIA headquarters believed he must be withholding information

    P. 197

    REDACTED. We examined CIA assertions regarding specific disrupted terrorist plots, The memorandum stated that Abu Zubaydah “provided significant information” about Jose Padilla and Binyam Mohamed, “who planned to build and detonate a ‘dirty bomb’…” FBI sources cited in the DOJ IG report stated, however, that the information in question was obtained through the use of traditional interrogation techniques, before the CIA began EITs.

    Then there is a footnote at the bottom, 183, that says:

    Much of the following information was made public in a September 6, 2006 speech by President Bush, and in a non-classified document issued by the Director of National Intelligence on September 6, 2006, “Summary of the High Value Terrorist Detainee Program”

    Not quite sure what Zubaydah could have given them with regard to Mohamed/Padilla through traditional interrogation techniques since he knew absolutely nothing about any plots. That doesn’t make sense to me.

  49. skdadl says:

    EW, OT but related: Someone is wrong on the internet about your work on AZ.

    In an interview with AZ’s attorney Brent Mickum, Jason Linkins at HuffPo misreads your timeline of 22 April last year, and then he and Mickum, clearly under the impression that your work hasn’t continued since then, go on to emphasize something that you have demonstrated again and again since, that the torture of AZ began not long after his capture:

    I also asked Mickum about what is known to have taken place in interrogations, based upon the information that was provided to the 9/11 Commission. I shared with him the timeline that was established by Marcy Wheeler, after painstaking study of the commission’s report. As you might expect, he did not dispute Wheeler’s underlying premise — that the waterboarding of Abu Zubaydah did not yield valuable intelligence. However, he was adamant that the timeline was wrong, that Abu Zubaydah was being tortured well in advance of August 31, 2002 — the date established in the 9/11 Report as when waterboarding began. Mickum contends that torture began much earlier.

    HUFFINGTON POST: Let me get this straight. You are saying that between the date of Abu Zubaydah’s capture, which was March 28, 2002, and July 24, 2002, the date on which the CIA was said to have first received oral guidance on enhanced interrogation techniques from Jay Bybee, Abu Zubaydah was subjected to torture?

    MICKUM: That’s correct.

    I’ve sent Linkins an email pointing out the two errors, but you may want to have your own say.

    • emptywheel says:

      Thanks. I think there’s a distinction to make between the torture–which we knew to begin in May–and the waterboarding, which probably began in July or August.

      • skdadl says:

        Indeed. Plus I was a little bothered to see him claim that you’d been doing a “painstaking study” of the 9/11 commission report when you were actually and very clearly doing a painstaking reading of Bradbury’s memos and the details from the CIA IG’s report quoted therein.

  50. JThomason says:

    Apparently California does not impose a mandatory duty on lawyers to report ethical violations:

    While the vast majority of United States jurisdictions do impose some requirement that lawyers report the misconduct of other attorneys, the requirement is not universal. For example, Kentucky has no such requirement. Washington’s and Georgia’s are precatory only. California has substituted a regime requiring the automatic reporting of certain events to disciplinary authorities instead of relying on lawyers to police and evaluate the conduct of other attorneys. [References ommitted.]

    bnet

  51. wavpeac says:

    Truth is like water…eventually it will find it’s way through the cracks all the way down to the lowest point.

    Thanks all of you…can’t wait to come back and read more.

    • Mary says:

      I meant to mention that was the most likely candidate imo. You just know that there were communiations back and forth regarding the al-Libi live burial too, but not the kind of things that would be something an OPR investigation would be able to get – not emails to John Yoo from the Egyptian torturers.

      You know it was inspirational to the torturers and helped sell them on the “torture gets results” (which it certainly did – a man was tortured into saying just what Dick Cheney wanted said as a precursor to the murder-by-authorizedmilitaryforce of US soldiers and Iraqi civilians. And it was what sent Soufan around the bend.

      The drugging was a part of the “preliminaries” which I guess don’t get much shrift in the OPR investigation, since they are not a part of the opinions at all.

      There is about Zero chance of a Congressional committee asking anything about the torture of al-libi though, ever.

    • Jeff Kaye says:

      Thanks. Yes, mock burial.

      In my opinion, they never would have put medical experimentation down on paper. They’ve made that clear in the past (mkultra era). Of course, that’s convenient for those who wish to label people like myself as conspiracy theorists re things like government secret experiments, but luckily, a skeleton history of same has been put together by academics (like Jonathan Moreno at Univ. of Virginia) or govt commissions (like the Clinton-era commission on the govt radiation experiments.

      I’m finishing up my circumstantial evidence-based case for recent govt use of drugs as experiments. We already knew they were used for rendition transport, etc.

      • Mary says:

        they never would have put medical experimentation down on paper

        And yet, look a the declarations filed with the Fourth Circuit in the Padilla case. They basically outline human experimentation to see if they could use years of isolation and *other tactics* to see if they could not mentally rewire him.

        http://www.pegc.us/archive/Padilla_vs_Rumsfeld/Jacoby_declaration_20030109.pdf

        And the courts went along with human experimentation, as a “source” of intelligence, is protected as an intel source and method.

        That so many were so willing to be so evil for so long, and then to commit the nation to their same path just so that they could salve their egos by having a country call their depravity patriotism – it just galls beyond belief.

        I need to go muck stalls – it’ll feel like taking a shower after this topic.

        • klynn says:

          That so many were so willing to be so evil for so long, and then to commit the nation to their same path just so that they could salve their egos by having a country call their depravity patriotism – it just galls beyond belief.

          And we have opened the flood gates to have such behavior carried out on our own service personnel and citizens.

        • Jeff Kaye says:

          Wow. That’s a big oversight on my part, to have neglected that decision. I will have to go back and reread. Thanks for the link and your tireless work and dedication.

        • Jeff Kaye says:

          After reading, there is nothing in Jacoby’s statement about use of drugs. Do you have links to other Padilla material where that is specifically discussed? (only if you have time for such things… I can research it later myself)

          My point is that they would not put on paper their plans for medical or drug experimentation on prisoners. If anyone has knowledge of such, please indicate so here, and/or email me at sfpsych at gmail.com.

          If Yoo were to appear before a Congressional committee, then I’d like to see him asked why he included info on drugs in his memos, what he was told, and what he thinks about changes on this subject in the Army Field Manual.

          All this, I know, is veering slightly OT.

          Re hearings, I support any hearings at this point, as we need to keep the subject in the news and break the logjam on the issue. If it’s a coverup or limited hangout, that’s what we bloggers and journalists and orgs like CCR, PHR and ACLU are here to expose and push, push, push things to the next level.

          • Mary says:

            Sorry – I didn’t realize you were specifically meaning drug experimentation. I thought the experiments in isolation and creation of dependency laid out in the declaration were pretty chilling, but they don’t refer to drug usage at all.

            Those allegations did come up in Padilla’s case and you might want to contact his lawyers about them
            see, e.g., although I hate to use a fox link – http://www.foxnews.com/story/0,2933,265030,00.html

            There seemed to be some hints that the missing interrogation tapes might have indicated drug use in those interrogations. There was a report done on Padilla’s treatment at the So Car brig,
            http://www.washingtonpost.com/wp-dyn/content/article/2006/12/13/AR2006121302399_pf.html
            This was done within DoD (also showing why, with the departmentalization, these OPR or IG target topic, agency specific, inquiries are pretty pointless – too much gets left out of each one) by General Thiessen (not to be confused with the pro-torture Bush speech writer of the same last name). The focus of the story is on the “unique” isolation treatments that Thiessen discusses as likely vioaltions of the Geneva Conventions, but there is also this:

            Interrogators also prevented the International Committee of the Red Cross from visiting at least one detainee, according to the report, which noted evidence of other unspecified, unauthorized interrogation techniques.

            emph added

            Thiessen’s report was supposedly subsumed in the Church report, however

            Church focused on the conditions for foreign nationals held at Guantanamo Bay. But the details of what Thiessen found in the Charleston brig were not mentioned.

            Whether or not, if it could be pried loose, there might be something about drug use in what Thiessen found – something that would be supportive of Padilla’s claims and would be included in the “unspecified” and “unauthorized” interrogation techniques would be worth nailing down, but that won’t happen through things like a hearing on the OPR report.

            The reasons I am against these rabbit hole investigations include 1) once they are started, they suck the air out of any possiblity for a real investigation; 2) they run out the times longer to allow for more witnesses to die and become disabled, more evidence to be lost or altered, etc.; 3) they provide wheels spinning in the mud posturing that doesn’t go anywhere and leaves the uninvolved seeing “nothing there” and losing interest; and 4) each “failed” investigation drives those still demanding a real investigation into the eye rolling, conspiracy theorist categories.

            I don’t see them helping anything and I do see them hurting lots. Think how long courts have sat back and done nothing about the lies in their courtrooms bc of the claims that “investigations” were ongoing, even though those investigations had nothing to do with the lies to the courts and the fraudulent discovery responses, etc. and now things have gone on, corners have been turned, some of those judges are probably likely to be retired or decased before long, and all with nothing happening because everyone was supporting a worthless “investigation” and waiting hopefully for what it would reveal, instead of constantly hammering on why it was completely insufficient in scope and mandate, in staffing and resources, and in criminal investigative skills and authorizations.

            Then Presidents leave office, Dick Cheney’s end up with state funerals, and the narrative becomes locked in never never land.

            • Jeff Kaye says:

              Much thanks for the links and the thoughts.

              By “rabbit hole” investigations, what types are you referring to? Do you mean Durham? Or some kind of proposed OPR investigation?

              We definitely need an open, public, wide-ranging investigation of the entire use of torture by the United States.

              Re medical experiments, I’m aiming this, from the war crimes act, U.S. 2441:

              (a) Offense. Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death….

              (d) Common Article 3 violations.

              (1) Prohibited conduct. In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows….

              (C) Performing biological experiments. The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.

              You’ll notice, there’s no need to prove “serious” injury. All that crap about what constitutes a grave injury is immaterial on this point. (Of course, they did cause grave injury, and even death, it is believed.) They are extremely vulnerable on this provision, and they know it.

  52. Mary says:

    I’ve been too resigned and depressed about what was coming for too long to sit down and read any of it, although I’ve read this post and most of the comments.

    Koester has been discussed here before in comments at least

    e.g. –

    http://emptywheel.firedoglake.com/2009/08/25/we-will-provide-at-a-later-date-an-opinion-that-explains-the-basis-for-this-conclusion/

    Ditto the “made woman” comment above.

    Bellinger not a hero? What heresy /s

    From what is excerpted in comments, it seems like Margolis isn’t drawing a distinction between erroneous conclusions AFTER exercise of professional due diligence and erroneous conclusions stemming from a loack of proessional due diligence – as a matter of fact, it sounds like OPR is saying something like *well, other lawyers have decided that the conclusions were correct, so we won’t go into the that and are just looking at the fact that the process was unprofession* while Margolis is saying *eh, so the conclusions were wrong, it’s not unprofessional to make the wrong conclusions*

    I guess I am mildly interested in what, if anything, the OPR reports says or does vis a vis Ashcroft or whether it even makes an assertion as to whether or not they CAN investigate the AG – but no one has ever really nailed down what happened with respect to Ashcroft and these opinions and his advice to NSC. There were the reports that Condi REQUIRED Ashcroft to personally give the torture advice to the NSC – I always wondered whether that was done by his just signing off on the memos (and if so, where those sign offs ended up) and what due diligence he exercised before the sign off.

    Re: the declinations on the criminal prosecutions, those were handled by McNulty’s crew, weren’t they? The same USA office that was making misrepresentations to the courts and adverse counsel in discovery and in response to court ordered production was, IIRC, also looking into the criminality of a lot of the actions it was concealing from the courts.

    Nothing to see there, move along, move along.

    Which leaves me with my lack of enthusiasm for the Leahy/Conyers response. I think they are still missing the boat, and I’m beginning to think it almost has to be deliberate at this stage, on what kind of investigation they are going to have.

    An investigation into the OPR report is going to be about as helpful as I always said the OPR report itself would be (minimal)

    The investigation needs to be into the Exec branch lawyers interactions with Congress and the Courts and with each other to the extent non-DOJ lawyers affect the DOJ interactions with Congress and the Court. It needs to be a candor to the tribunals investigation that goes to all of the Exec branch, not just DOJ lawyers but their pushers in DoD, NSA, CIA, etc.

    It needs to go to things like existing laws re: Congressional briefings (that were violated and may still be being violated based on OLC and DOJ’s views on being the lawyers (and Legislators and Judges) for the violators. Things like violation of court orders. Things like misrepresentations to the courts and to Congress. Things like deliberate strategies to avoid legislation and court review (the other two branches of gvo) involving the OLC and DOJ. Things like the way inhouse investigations are not set up by existing regs to require any reports to Congress and are also set up to allow DOJ to quietly deep six the same investigations that they publically announce (anyone else ever become interested in what happened to the delegation of the Fitzgerald supervision, esp now that Margolis is being shown for what he is?)

    An inane “investigation of the OPR report” isn’t going to go anywhere things need to go, IMO. An opinion I’ve held for so long that it makes me too depressed to even want to bother to read any more on the reports or the Leahy response.

  53. alinaustex says:

    Did the Margolis whitewash involve any torture media that may have been lost or destroyed -you know redacted maybe and then disappeared ? This media might have included ‘techniques ” that the contract gators like Jeppesen would have used to pitch their servics to the powers that be.

    It looks like a lot of basic documentation has gone missing .

    Could any of this OPR /Margolis whitewash fall into the Durham grand jury baliwick ?

  54. Leen says:

    Scott Horton “the government lawyers involved in preparing the documents could and should face professional sanctions”

    Cass Sunstein “It’s egregiously bad. It’s very low level, it’s very weak, embarassingly weak, just short of reckless.” SHORT?

    pg 81 “4. The war crimes act does not apply to military interrogation of Al Queda and Taliban prisoners because “they do not qualify for the legal protections under the Geneva or Hague Conventions.”

    Makes you wonder about the “Boys from Brazil” movie.

  55. wavpeac says:

    The biggest problem, the core of the problem here is convincing a nation of emotion minded heathens (God fearing, similar to fire breathing dragon slayers)that torture is not effective and that it has consequences to our once great republic in regard to the very core of our principles.

    It appears to me, that some of the most elite in this country are complacent about it, (Clinton, Obama, even Oprah) and those who vehemently disagree are just too afraid to LIVE their truth. Whenever a paradigm shift is required…those in favor of the shift are demonized. From Copernicus on. There is no way forward without facing the fact that this view will be maligned because those who believe in torture do so on an emotional basis of fear. Therefore their response to invalidation of this emotion will be to escalate, to attack with great energy and vigilance.

    What can be done?…to change the “values” of these people? How can we reach them? Without a large public outcry…we are stuck with a precedent that basically chips away at our very own protections against being tortured,as well as the damage that is done to the integrity of this country and to the creation of new valid hostilities toward us.

    If we don’t start addressing the real conflict between those who “believe” that torture is a moral and valid solution to terrorism and those who see it as in fact increasing and fomenting terrorism, then we cannot make progress on this issue. It cannot be about words…it MUST be about ACTION. Obama is seriously flawed in this regard, because he is only comfortable with the words…but he is sorely incapable of the action that would truly validate the true nature of this problem. He must be called out on this. I don’t know how we can move forward without making his forked tongue clear.

    This is going to be a bloody battle, a difficult path…but our course in history will be determined by what we do with this issue.

    Thank you all for continuing to uncover the lies…this is action that supports the shift in paradigm.

    • bobschacht says:

      You make an important point. My diagnosis of the PR problem is that the Republicans normalized talk about torture: It is no longer a forbidden topic. Worse yet, they have marginalized the debate as being “merely” about “policy differences,” as if all policies are legally and morally equal.

      We’ve got to have push-back about this: From the President, from leaders in Congress, and from the Courts. We need a LOT of push-back on this.

      Bob in AZ

      • DWBartoo says:

        “merely” … “policy differences” … Sunstein signaled very early with his “axiom” that the Democrats were happily on board with NOT “criminalizing policy differences”, blatantly giving the Republicans only green lights to contend with … full speed ahead, looking forward (even if such behavior is “just short” of reckless …)

        This IS bipartisan , the political class is protecting its own …

        It will continue …

  56. JasonLeopold says:

    On a side note, this was a document that was released by the ACLU about a month ago but reading it now after reading this report makes a bit more sense, to me at least. Thought I would share if anyone is interested in a break from the other reading It’s an email from someone in the Pentagon who refers to himself/herself as “Fighting Back From the Pentagon” to Harvard officials in July 2004 opposing Goldsmith’s tenured position because of his involvement in torture.

    What’s bizarre is that the letter was forwarded to Goldsmith from David Leitch who worked Deputy White House Counsel. Leitch adds some strange commentary to the allegations leveled.

    Anyway, FWIW.

  57. MrWhy says:

    I can see lawyers everywhere using the Yoo/Bybee defense –

    Just because I’m incompetent, lazy, and indifferent to the consequences of my actions, doesn’t mean I should be disbarred. I mean, they asked my opinion, they didn’t say that my opinions should reflect the letter and spirit of the law, and established precedent. Sheesh, if that’s what they wanted, why did they hire me in the first place?

    • Leen says:

      As a peasant (telling lots of other peasants) if I ever get in trouble with the law I am going to use “poor judgment” as a defense. Trickle down and all that. Our Dept of Justice and our leaders set the bar high (choke)

      • bmaz says:

        I don’t think there is any question but that Kyl, execrable chap he is, was carrying the direct water of Bush/Cheney White House on that one.

  58. qweryous says:

    I am not sure if this is on topic but concerning:

    Jennifer Koester is mentioned here beginning @78 and

    on the TortureTimeline June 22,2004 in this document (Yoo-Philbin-Rizzo):
    http://www.aclu.org/torturefoia/released/082409/olcremand/2004olc49.pdf

    And some looking around turned up this court filing in which she appears several times-( which some searching did not turn up mention of at FDL or EW):

    NATIONAL INSTITUTE OF MILITARY JUSTICE,
    Plaintiff,
    v.
    UNITED STATES DEPARTMENT OF DEFENSE,
    Defendant.
    Civil Action No. 04-0312 (RBW)

    A motion for Summary Judgment dated Nov 1, 2004.

    Link to Document:
    http://www.pegc.us/archive/NIMJ_v_DoD/04-312_NIMJ_Cross-Motion_for_SJ.pdf

    Link to rest of NIMJ filings in this case:
    http://www.wcl.american.edu/nimj/foia_cases.cfm

    Documents were produced on two occasions by DOD, but plaintiffs were unsuccessful in obtaining rulings to obtain full complinace with the FOIA.
    Writ of Cert was denied by the US Supreme Court in 2008.

    Why I post this:

    • qweryous says:

      oops part 2 of @222:

      What is in this filing:

      1. Government claims that ‘volunteer’ outside attorneys were exempted from FOIA in their role in setting up the original military commission structure implementing the President’s November 13, 2001 Military Order (establishing military commissions to try suspected terrorists)- because they were serving as ‘consultants’.Some of these attorneys are named in the first document linked. See page 8 (orig #) in the PDF at bottom.

      2. Rumsfeld on this: “As the Secretary of Defense described their role, “they just volunteered to help out.” (Exhibit A at 5.)” Page 17 (orig. #).

      3. These outside lawyers involvement was over a period of approx. two years. See page 10-(original #)

      4. Meetings and communication between Douglas Feith, Paul Wolfowitz and William Haynes with the British Attorney General (Lord Goldsmith) and others concerning the U.K. detainees. Begins on page 25 (original #).

      5. The usual Vaughn index issues seem present here.

      Apologies for the length.

      • jdmckay0 says:

        1. Government claims that ‘volunteer’ outside attorneys were exempted from FOIA (…)

        sheesh…

        2. Rumsfeld on this: “As the Secretary of Defense described their role, “they just volunteered to help out.”

        sheesh sheesh…

        4. Meetings and communication between Douglas Feith, Paul Wolfowitz and William Haynes with the British Attorney General (Lord Goldsmith) and others concerning the U.K. detainees. Begins on page 25 (original #).

        I guess Feith can invoke ‘dumbest guy in the world’ excuse, right???… surely a good neocon lawyer can codify that into law somehow. As for Wolfy & Haynes, if I were advising ’em I’d run with tried but true: ‘I forgot’…. errr, excuse me, I think the exact legal term is: ‘I don’t recall.’

        Got to admire the patriot-ism of these volunteers, really stepping up for their country (Israel?) in the time of need.

        And from your ACLU link, Yoo explains:

        Moreover, to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, with the express purpose, of causing prolonged mental harm in order for the use of any of the redicate acts to constitute torture.

        Ok, that one I knew… (how long is pro-longed… I’m guessing it’s an arrow forward in time into infinity), but his next sentence… well, it’s damn insightful:

        Specific intent can be negated by good faith. Thus if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture.

        Now, I haven’t been following this thing for a while, thought I’d stop by this place knowing this subject would be getting a little attention here… so I guess you guyz probably have illuminated this “good faith” torture exemption already.

        But after 8 yrs of absurdity upon absurdity from BushCo, whether WMD claims or all the other shit they pulled out you know where, I must say that this one kind’a floored me for a minute. I mean, really… you can string ’em up, put a few volts through their balls, cut ’em open a little bit for dramatic affect, then put a hood on, play some AC-DC for a few hrs/days/weeks at decibels sufficient to derange the hardest of head-bangers, then maybe tell said “detainee” you’re going to go after his kids/wife/cousins (etc.)… well, as long as this was done in good faith, all is forgiven.

        That’s pretty damn good… pretty damn good indeed.

        Last time I saw Yoo was on the Daily Show not long ago. Thing he said that stuck w/me there, because of the absurd context juxtapositioning, was (from memory):

        “Some of us think Obama’s actions are unconstitutional.”

        Now Obama’s lost me completely on everything, and I think he’s been as ineffectual as a Windmill changing weather. And I despise him for refinancing the WS crooks rather then putting ’em away for financial terrorism. But all that stuff is what Yoo’s crowd wants… keep the money flowing to hooligans who can pull the levers…

        Sure would like to hear Yoo detail exactly what BO’s unconstitutional acts are/were… just for shits and giggles.

        I must say, that fucker really scares me… dark to the core, and fully purposed in executing that darkness amongst large group of similarly darkened souls. And to think Yoo/Wolfy etc. are teaching our up & coming legal minds