Did DOJ “Lose” the Smoking Gun Torture Document?

You know what I find surprisingly absent from the OPR Report?

Any discussion of how–just days after potentially receiving a document making clear that SERE techniques were torture and that torture was not effective–John Yoo still authorized the use of torture in US interrogations.

Here are the last two paragraphs of that document:

(U) Another important aspect of the debate over the use of torture is the consideration of its potential impact on the safety of U.S. personnel captured by current and future adversaries. The unintended consequence of a U.S. policy that provides for the torture of prisoners is that it could be used by our adversaries as justification for the torture of captured U.S. personnel. While this would have little impact on those regimes or organizations that already employ torture as a standard means of operating, it could serve as the critical impetus for those that are currently weighing the potential gains and risks associated with the torture of U.S. persons to accept torture as an acceptable option.

(U) CONCLUSION: The application of extreme physical and/or psychological duress (torture) has some serious operational deficits, most notably, the potential to result in unreliable information. This is not to say that the manipulation of the subject’s environment in an effort to dislocate their expectations and induce emotional responses is not effective. On the contrary, systematic manipulation ofthe subject’s environment is likely to result in a subject that can be exploited for intelligence information and other national strategic concerns. [my emphasis]

This document was written by JPRA–the people that administer the SERE program from which our torture program was purportedly reverse-engineered. It provides clear evidence that, on July 25, 2002, JPRA was aware of an ongoing debate over whether or not to use torture with prisoners in US custody. The document clearly states that torture leads to unreliable information. And the document calls these techniques “torture.”

You’d think, if there were proof Yoo had read it, that OPR would include some discussion of how JPRA’s expert opinion that this was torture should have affected Yoo’s own definition of torture (heck–JPRA’s language here would be more on point than the “organ failure” language that Yoo and Jennifer Koester used to define torture). You’d think, given the experts’ opinion that torture produced unreliable information, OPR would have challenged Yoo’s acceptance of the CIA’s claims that torture was the only way to get Abu Zubaydah to reveal the intelligence they claimed he had. You’d think OPR would ask Yoo why–given his reliance on the same JPRA experts to claim that waterboarding didn’t cause psychological harm–he chose to ignore this document from JPRA.

This document, in other words, ought to be a cornerstone of OPR’s analysis of Yoo’s failure to provide independent analysis and include all relevant information about what constituted torture. It ought to be used as proof that Yoo knew he was authorizing what the experts deemed to be torture.

If OPR had proof Yoo read this document, it would be the “smoking gun” that when he wrote the torture memo he knew he was deliberately authorizing torture.

But it’s not clear whether Yoo did read it. And it’s not clear that if he did, proof to that fact would still have been in OLC’s collection of torture documents by the time OPR got around to reviewing those documents.

If the document appears in the OPR Report, it would appear in the discussion on PDF 62 describing Koester receiving a bunch of additional information from CIA on the torture program.

Over the next few days, [redacted] sent [Jennifer Koester] additional information relating to the proposed interrogation, including a psychological assessment of Abu Zubaydah and a report from CIA psychologists asserting that the use of harsh interrogation techniques in SERE training had resulted in no adverse long-term effects.

[Redacted] also provided additional information about the proposed interrogation program to [Koester]. On July 26, 2002, [redacted] sent [Koester] three memoranda the CIA had obtained from the Department of Defense Joint Personnel Recovery Agency (JPRA) and the United States Air Force. The memoranda, dated July 24 and July 25, 2002, were in response to requests for information from the DOD Office of General Counsel about SERE interrogation techniques. The two JPRA memoranda were in response to a request for information about interrogation methods used against United States prisoners of war, and the techniques used on students in SERE training. The Air Force memorandum was from a psychologist who served in the Air Force’s SERE training program. The memorandum discussed the psychological effects of SERE training, noting that the waterboard was 100% effective as an interrogation technique, and that the long-term psychological effects of its use were minimal.

[~10 line paragraph redacted]

I suspect–as I’ll discuss in a later post–that redacted passage discusses the lists of techniques used against American POWs and on students in SERE training. Moreover, this JPRA document is so inflammatory, if it were in the OPR Report, it ought to serve as a cornerstone of OPR’s analysis of Yoo’s bad lawyering rather than just one 10-line paragraph. But there appears to be no sign of it.

Yet, at least when DOD General Counsel was putting together the information that appears to have gone in that packet, the JPRA memo was included in it. And Jim Haynes suggested that the entire packet was forwarded to DOJ. The SASC Torture Report explains,

On July 26, 2002, JPRA completed a second memorandum with three attachments to respond to the additional questions from the General Counsel’s office.

[snip]

The first attachment to the July 26,2002 memo was”’Physical Pressures used in Resistance Training and Against American Prisoners and Detainees.”192 [see PDF 211ff for excerpts] That attachment included a list of techniques used to train students at SERE school to resist interrogation. The list included techniques such as the facial slap, walling, the abdomen slap, use of water, the attention grasp, and stress positions. 193 The first attachment also listed techniques used by some of the service SERE schools, such as use of smoke, shaking and manhandling, cramped conftnement, immersion in water or wetting down, and waterboarding.

[snip]

Mr. Haynes also recalled that he may have been “asked that information be given to the Justice Department for something they were working on,” which he said related to a program he was not free to discuss with the Committee, even in a classified setting.

(U) A second attachment to the July 26, 2002 JPRA memo to the General Counsel’s office was entitled “Operational Issues Pertaining to the use of Physical/Psychological Coercion in Interrogation.”198 In attachment two, JPRA stated that the memo did not purport to address the “myriad legal, ethical, or moral implications of torture; rather, [the memo focused on] the key operational considerations relative to the use of physical and psychological pressures.”199

(U) Attachment two described operational risks associated with using “physical and/or psychological duress” (a phrase that JPRA used interchangeably with ”torture” throughout most ofattachment two) in interrogations. 20o The attachment said that one risk was that the use of these methods would increase the “prisoner’s level of resolve to resist cooperating.”201 JPRA explained that “[0]nce any means of duress has been purposefully applied to the prisoner, the formerly cooperative relationship cannot be reestablished. In addition, the prisoner’s level of resolve to resist cooperating with the interrogator will likely be increased as a result of harsh or brutal treatment.”202

[snip]

The third attachment to JPRA’s July 26, 2002 memo was a memo from the Chief of Psychology Services at the Air Force SERE school, Jerald Ogrisseg, on the “Psychological Effects of Resistance Training.”207 That memorandum, which was generated in response to a specific request from the General Counsel’s office, described available evidence on the long-term psychological effects ofAir Force SERE training on US. personnel and commented from a psychological perspective on the effects of using the waterboard.

Reading closely, it appears that OPR believes that Koester received three things on July 26–attachment one (Physical Pressures) and attachment three (Psychological Effects) from the DOD packet, plus a document on techniques used against American POWs (two similar documents are described on PDF 208 and were attached to a memo prepared for DOD for use with DOJ on July 25). But we know that before that packet left DOD, the second attachment was the JPRA document calling these techniques torture.

And that’s why the fact that OLC hasn’t maintained control over these documents is so important.

As we can see, there is a discrepancy between how SASC describes the packet that was collected in DOD and the packet that OPR says Koester received on July 26, 2002–because the JPRA document describing these techniques as torture appears to have gotten swapped out for a description of techniques used against US POWs. If we could trust the provenance of the documents in OLC’s SCIF, we could see what documents actually made it to OLC. But we can’t–there’s an apparent discrepancy between the multiple descriptions of the July 26, 2002 packet in the FOIA and what OPR reports Koester to have received.

Here’s what the FOIA Vaughn Indices say:

2007 short form:

Document 7,  07/26/2002, 13 page Top Secret packet, w/fax cover sheet, 2-page memo, 6-page memo, 2-page memo, and 2-page memo providing legal advice

2007 long form:

Document No. 7 is a 13-page document dated 26 July 2002 that consists of a 1-page fax cover sheet, a 2-page memorandum, a 6-page memorandum, a 2-page memorandum, and a 2-page memorandum. It is classified TOP SECRET.

The memoranda contain confidential client communications from the CIA on a matter in which it requested legal advice from OLC.

2009 version:

Document 7, 7/26/02, Secret memo requesting legal advice

This is a twelve-page memo from the DOD discussing resistance training techniques to special designated high-risk-of-capture personnel. It includes a fax cover sheet from CIA to DOD. The DOD document is being referred to DOD for reprocessing or a determination that it has previously been processed in this litigation.

That is, both 2007 descriptions say there are four, not three, attachments in this packet, which doesn’t correspond with either OPR’s or SASC’s description of the packet. And while the 2009 description may not be inconsistent with the SASC description of the packet (that is, the entire 3-part packet could be described as describing SERE training), that wouldn’t seem to include the third document OPR says Koester got–something describing techniques used historically on US POWs.

To make things worse, the July 26 packet was closely associated with a July 25 packet that OLC seems to suspect also came from DOD (in which there were two descriptions of treatment of US POWs). This is the packet the description of which was already inconsistent in 2007, and has since disappeared entirely.

2007 short form

Document 6, 07/25/2002, 46 page Top Secret memo providing legal advice

2007 long form

Document No. 6 is a 60-page document dated 25 July 2002 that consists of a 3-page memorandum and six attachments of 2 pages, 7 pages, 10 pages, 13 pages, 13 pages, and 12 pages, respectively. It is classified SECRET.

The memorandum and attachments contain confidential client communications from the CIA on a matter in which it requested legal advice from OLC.

2009 version

Document 6, 7/25/02 59 page Secret memo (from and to DOD) providing legal advice, not located

This packet has been alternately described to include 46 pages, 60 pages (including a 3-page cover memo), and 59 pages. As with the July 26 packet, it has been described to be classified at both Top Secret and Secret levels. Between the July 25 and July 26 packets, there are four 2-page documents that could be the JPRA document. And if DOD just forwarded the memos it got to CIA, this packet, not the July 26 one, would include the descriptions of torture used on US POWs.

Now, it may well be that the JPRA document was intercepted before the packet got sent to OLC. John Rizzo testified to Congress that “his office was the vehicle” for passing this information along.

Mr. Rizzo stated that his office was “the vehicle” for getting the interrogation practices analyzed in the Second Bybee memo to the Department of Justice.”

And indeed, the redacted name in the OPR Report seems to be a lawyer at CIA, if not Rizzo’s office. So it’s possible that CIA thought better of sending over to DOJ a document labeling these interrogation techniques as torture. But given the way CIA once had, for a period in 2007, unfettered control of the documents in question, we may never know whether it got sent over to DOJ.

All of which leaves us with a more questions than answers about why the smoking gun document calling torture torture didn’t appear in the OPR Report:

  • Is the JPRA document in the OPR Report?
  • If so, is it still in OLC’s documents?
  • If not, did the JPRA document ever get sent to OLC?
  • If not, did the JPRA document get removed by someone in DOD or someone in CIA?

That document probably either got removed before it got sent to DOJ (in which case either Haynes or Rizzo is culpable) or it disappeared from a SCIF. Finding out which happened would place the smoking gun–intent to authorize a program of torture–in a member of the War Council’s hands.

image_print
52 replies
  1. tjbs says:

    It’s always the cover-up.

    But in this case the crime of TORTURE/ MURDER/ TREASON is worse than the cover-up.

    Keep at it, you’ve got them stupid bastards.

  2. klynn says:

    Posted this a few days ago in the Mahoney thread:

    A note to Mahoney, Bybee and Yoo:

    If you write a legal memo about methods/practices which have an historical context (Spanish Inquisition, Gestapo, Khmer Rouge) in the development of international policies/laws against such torture practices; then you must write specific explanations about how the use of such practices could be different from their use in the historical contexts. There is nothing written in the documents that sets apart the US practices from the historical practices.

    Torture is neither proportionate nor allowed due to motive.

    Nothing in any of the documents off-sets these facts. Especially a ticking time bomb defense.

    Your finding should be the foundation for investigation. Another 183.

    Thank you for your amazing efforts.

  3. Gitcheegumee says:

    This brings to mind the approved destruction of the interrogation tapes.

    Destruction of C.I.A. Tapes Cleared by Lawyers – New York TimesDec 11, 2007 … Destruction of C.I.A. Tapes Cleared by Lawyers … investigators as they try to reconstruct the events leading up to the tapes’ destruction. …
    http://www.nytimes.com/2007/12/11/washington/11intel.html

    Destruction of C.I.A. Tapes Cleared by Lawyers – New York TimesA clandestine branch of the CIA gave advance approval for the destruction of videos of interrogations.
    http://www.nytimes.com/2007/12/11/washington/11intel.html?hp

  4. alank says:

    Where are the civil lawsuits that would’ve pushed this into the foreground of media coverage whereby the impetus could be found to recover restitution for the terrible wrongs committed in the name of the USA?

  5. klynn says:

    A little OT, but maybe not

    KATHERINE EBAN: My understanding is they are—they have their company, Mitchell, Jessen & Associates. It actually—business appears to be blooming. They have 120 employees out of their office in Spokane. They have classified contracts with the CIA in their office. They even have what’s called a SCIF, which is a secure compartmented information facility, as a way to handle classified materials, classified training, classified documents.

    So, they probably had a SCIF while at George Mason? If so, how helpful. There was even a helpful lawyer nearby too (Rotunda).

  6. harpie says:

    I’m sure a lot of this has been discussed here already but would these two paragraphs from the SASC Report [Executive Summary, pg.xvi] constitute some evidence that Yoo had seen Ossierig’s evaluation?:
    http://levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf

    (U) Before drafting the opinions, Mr. Yoo, the Deputy Assistant Attorney General for the OLC, had met with Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, to discuss the subjects he intended to address in the opinions. In testimony before the House Judiciary Committee, Mr. Yoo refused to say whether or not he ever discussed or received information about SERE techniques as the memos were being drafted. When asked whether he had discussed SERE techniques with Judge Gonzales, Mr. Addington, Mr. Yoo, Mr. Rizzo or other senior administration lawyers, DoD General Counsel Jim Haynes testified that he “did discuss SERE techniques with other people in the administration.” NSC Legal Advisor John Bellinger said that “some of the legal analyses of proposed interrogation techniques that were prepared by the Department of Justice… did refer to the psychological effects of resistance training.”
    (U) In fact, Jay Bybee the Assistant Attorney General who signed the two OLC legal opinions said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said that he used that assessment to inform the August 1, 2002 OLC legal opinion that has yet to be publicly released. Judge Bybee also recalled discussing detainee interrogations in a meeting with Attorney General John Ashcroft and John Yoo in late July 2002, prior to signing the OLC opinions. Mr. Bellinger, the NSC Legal Advisor, said that “the NSC’s Principals reviewed CIA’s proposed program on several occasions in 2002 and 2003” and that he “expressed concern that the proposed CIA interrogation techniques comply with applicable U.S. law, including our international obligations.”

    Also interesting, maybe [p.xiv] Daniel Baumgartner was the JPRA Chief of Staff who originally asked [from “higher ups”] for Ossierig’s memo:

    “Lieutenant Colonel Baumgartner testified that he provided another government agency the same information he sent to the DoD General Counsel’s office.

    Was that the CIA or the DoJ…DIA ???

    According to the SASC report, he also said that
    already in

    Late 2001 or early 2002 – “JPRA [SERE] conducted briefings of Defense Intelligence Agency (DIA) personnel on detainee resistance, techniques, and information on detainee exploitation.”

    • emptywheel says:

      Oh, he definitely saw Ogrisseg’s document. What I’m trying to tease out is whether he saw the document that was once part of a package w/Ogrisseg’s doc, because that’s the smoking gun.

      When it was in Haynes’ office, it had three parts: torture techniques, a warning against torture, and a psych eval.

      OPR says when Koester got it, it had three parts: SERE techniques, torture experienced by US POWs, and psych eval.

      I’m trying to figure out whether we can test that, given the FOIA info.

    • emptywheel says:

      This wasn’t NARA in the least. This was DOJ. Or, more likely, CIA, with DOJ’s blessing.

      The documents went in this order (after having been in OLC’s SCIF since 2002):

      2005: CIA comes INTO OLC’s SCIF to do the FOIA search (thereby giving CIA a perfect idea of what OLC had kept), but leaves the documents there

      2007: Docs moved from OLC SCIF to OPR SCIF.

      2007: Docs moved from OPR SCIF back to OLC to be picked up by CIA, whisked away to Langley, and put through Cheney’s shredder (heh)

      2007: Docs back to OPR’s SCIF after CIA has “updated its FOIA” (at this point, something like 20 documents were missing)

      2007-2009: Docs keep getting pulled from OPR SCIF

      2009: Docs move from OPR SCIF to OLC SCIF at which point, preparing to respond to this FOIA, David Barron freaks out because he realizes there are a bunch of documents missing.

      • bobschacht says:

        EW,
        This is another great timeline, but we need months for 2007 to narrow down who had what, when. And we need more on the “who.” Shouldn’t the “who” be recorded by the SCIF?

        Bob in AZ

        • emptywheel says:

          Yes. WHich is why I hope someone who can get answers will try to get them. I’m going to try myself. But I expect that if Barron had wanted to provide these details, he would have.

          One thing we do know, btw, is that OPR got a bunch of docs–including the CAT memo for the first time–in late 2007.

          • emptywheel says:

            Sorry. Late Summer 2007.

            If I had to make a REALLY widearsed guess, I’d guess that CIA got the docs almost immediately after OPR got them, and then didn’t return them until July.

            The Vaughn was submitted on June 7, so it took them at least 3 weeks to return the docs to OLC.

  7. Loo Hoo. says:

    You AMAZE, EW. History will treat you well.

    In the real world, though, it doesn’t matter whether Yoo/Bybee/Koester read these docs or not. They KNEW these tactics were illegal. You can’t grow up in America and not know that torture is illegal. You simply can’t.

  8. Loo Hoo. says:

    In fact, you can’t grow up in America not knowing that cruelty to ANIMALS is illegal. Dog fights, cock fights, puppy slamming, kitten drowning. Everyone knows it. Everyone.

  9. emptywheel says:

    Reposting, bc my comment killed my formatting:

    This wasn’t NARA in the least. This was DOJ. Or, more likely, CIA, with DOJ’s blessing.

    The documents went in this order (after having been in OLC’s SCIF since 2002):

    2005: CIA comes INTO OLC’s SCIF to do the FOIA search (thereby giving CIA a perfect idea of what OLC had kept), but leaves the documents there

    2007: Docs moved from OLC SCIF to OPR SCIF.

    2007: Docs moved from OPR SCIF back to OLC to be picked up by CIA, whisked away to Langley, and put through Cheney’s shredder (heh)

    2007: Docs back to OPR’s SCIF after CIA has “updated its FOIA” (at this point, something like 20 documents were missing)

    2007-2009: Docs keep getting pulled from OPR SCIF

    2009: Docs move from OPR SCIF to OLC SCIF at which point, preparing to respond to this FOIA, David Barron freaks out because he realizes there are a bunch of documents missing.

    • Hmmm says:

      Is there any mechanism that would have prevented CIA (or anyone else) from returning a modified or faked document to the OPR SCIF, rather than the genuine article?

      • emptywheel says:

        Well, we honestly don’t know where those documents got out of the system, though the CIA point seems the most likely (not least bc they had done the most systematic review of the docs and may have had them outside a SCIF).

        I’m hoping someone will ask some more questions about the process here, because if the time CIA had them offsite is the most likely time the docs disappeared, then they woudl have also had an opportunity to play with the documents.

        Of course CIA now says it doesn’t have these docs at CIA (though they seem to have only looked at OGC, not CTC). So we don’t even have antying to compare it to, save the DOD docs.

    • fatster says:

      My apologies. ( I meant “Washington” but was thinking of all the hay made off the Berger incident (in contrast to the relative silence in the M$M on this mess), so typed “National Archives” instead. Sigh.)

  10. Jeff Kaye says:

    I thought I was going crazy or was simply confused, so much thanks, EW, for catching the discrepancies regarding the proffered SERE material to OLC. How many documents were there… etc.?

    The failure (or intent) to not keep a good record on these documents is infuriating, and if we could trace it, we’d surely find an attempt to cover their tracks, something which I’ve pointed out they were concerned with every step of the way.

    To Harpie: Yoo certainly must have seen the Ogrisseg memo, as he cites the statistics from it, I believe, in his memo, i.e., the fact hundreds of SERE students were waterboarded, supposedly without untoward effect.

    But if you remember, Ogrisseg told Baumgartner, when asked to quickly, under pressure, produce some statement about waterboarding’s effects, that he (Ogrisseg) didn’t know much about it… because they didn’t do waterboarding at Air Force SERE.

    Well, that should have perked up our ears then, but it just seemed like a screw up, until I came across evidence that waterboarding was far more controversial at JPRA then we previously knew. I hope to be ready with an article on this by mid-week.

    Thanks for getting back to this very important memo, EW. It seems to be an open door into a lot of things, if not, in the end, a smoking gun on waterboarding and the EITs. But who wrote it? Did it get delivered? Did Yoo see it? What were they hoping for? Btw, it did not argue entirely against torture, only physical torture. The stuff about environmental manipulation at the end is an argument for use of isolation, sleep deprivation, sensory deprivation, etc., as I argued in an article on this at FDL (my first at this site) back in April 2009.

    • emptywheel says:

      That’s one of the weird things: there’s an extra document in any case, at least per the 2005 check of documents.

      SASC says the July 25 memo had 6 attachments:

      Historical Overview 1
      Historical Overview 2
      Psychological Aspects of Detention
      Exploitation: Threats
      Methods of Interrogation
      Resistance to Interrogation

      And the July 25 memo had 3:

      Physical Pressures
      Operational Issues
      Ogrisseg

      But the 2007 FOIA said it went like this:

      July 25: 6 attachments, of the length that would make sense for lesson plans (which most of them were)

      July 26: 4 attachments (only one of which is long enough to be the Physical Pressures doc)

      • Jeff Kaye says:

        Exactly. And this is just the kind of thing — and I suppose I’m typical in this way — that makes me throw up my hands, as I don’t have the patience to dig through all the discrepancies. It’s no wonder that they don’t worry too much about what impression it will cause, because they know it will make those who look closer get frustrated and confused. (Reminds me, though the context is different, of Fitzgerald’s comment about throwing sand in one’s face.) I realize how much I’ve come to count upon you, EW,(and I know others do, too) to work through this kind of obfuscation. And if now, we don’t still know what happened, we know where to start looking.

        As for teaching Scarry’s book, I’m envious. I hope those sophomores appreciated it and you. The book is deeply profound, and very thought producing. As someone who has treated torture victims, and still do, it is an amazing explanation of the private world of pain and how a person constructs their meaning (and a society, too). Readers here could do worse than read Scarry’s Body in Pain. Thanks, BayStateLibrul, I look forward to her new book.

        • emptywheel says:

          It was, um, challenging. Taught it in a lit of war class. Much of the rest of lit of war is very “easy” (if that’s the word) to teach. This wasn’t. Kids these days don’t like to work.

  11. BayStateLibrul says:

    Coming in April

    More Scarry stuff?

    Rule of Law, Misrule of Men Elaine Scarry. MIT, $14.95 (192p) ISBN 978-0-262-01427-4

    Harvard professor of aesthetics Scarry (The Body in Pain) develops a forceful condemnation of Bush-era government excesses while articulating a broad philosophy of governance and consent. Scarry makes a provocative case against President Bush and Vice President Cheney for conspiracy to murder American citizens, based on the willful misrepresentation of facts that led America’s military into war. She examines how American soldiers, in turn, were led to practice not just torture but all manner of treachery and perfidy as defined by the Geneva and Hague Conventions and by the rules and standards of our own military, including attacks on hospitals, denial of medical treatment to prisoners, and inciting the assassination of enemy leaders. Scarry reserves her greatest indignation for how the Patriot Act has perverted the relationship between citizens and their government, eliminating privacy for citizens while shrouding the actions of their government in secrecy—rendering hollow the citizenry’s consent to be governed. A cogent and frightening reminder of what’s at stake for us as a nation. (Apr.)

    from Publisher’s Weekly

    • emptywheel says:

      Interesting.

      One of the many many many things I did in grad school that did, but I never thought would, prepare me for what I’m doing now is to teach her Body in Pain to a bunch of sophmores.

      The other stuff, btw, was reading and writing about Argentine and Czech authoritarian power, including a fair number of torture narratives. Who’d have thought that would come in useful in the real world US.

    • pdaly says:

      Any guesses on OLC having given some assassination memos, btw?

      I was thinking the same thing. It doesn’t even seem like snark–at this point, it’s a valid question.

      Since assassination involves permanent body organ damage, the Commander In Chief magic would have to be invoked again, I suppose.

      • timbo says:

        It think this is an interesting line of inquiry. Why? Because only the US Congress has the ability to declare a war as legal. If there were people in the Executive branch arguing that a state of war was in existence of, for example, the President had declared that a state of war was in existence with no evidence in the Congressional record that such a war had been declared…

  12. Jeff Kaye says:

    On July 26, 2002, [redacted] sent [Koester] three memoranda the CIA had obtained from the Department of Defense Joint Personnel Recovery Agency (JPRA) and the United States Air Force. The memoranda, dated July 24 and July 25, 2002, were in response to requests for information from the DOD Office of General Counsel about SERE interrogation techniques.

    One other thought, and there may be nothing to it, but how was it that the CIA got the documents from JPRA to begin with? The documents were dated 7/24 and 7/25, and requested from JPRA by DOD OGC. Does CIA have Haynes doing their errand boy work? These weren’t any old docs. They were produced under tremendous time pressure. [A human rights researcher once told me I had been too hard on poor old Ogrisseg, who was after all a lowly figure re military standing, and suddenly the Office Sec Def is coming down demanding he produce a document on waterboarding. (I’d questioned Ogrisseg’s methodology and research.)]

    It bespeaks a higher degree of collaboration between the SecDef office and CIA than we have been led to believe. I wonder if the CIA thought they’d get that blank check from OLC (but Chertoff said no), or lacking that, could keep going on oral approvals, and didn’t need the second classified memo on AZ. Done in haste, it bears the most signs of error (not only legal error, of which Bybee One is also replete, but stupid errors, like the rush to get “expert opinion” from JPRA, that demonstrates not “good faith” due diligence, but a bureaucratic hustle to cover their bases, so they could sign off on the torture), and the JPRA docs (especially the one you highlight here) is an example of that.

    Some of the missing docs may be an attempt to clean up that JPRA hastiness, of which the “Operational Issues” doc is a clear example.

    I see now I had done JPRA a slight disservice back when I wrote about them. I didn’t take into account that there were people inside JPRA (and maybe JFCOM) that weren’t so anxious to see JPRA take on their new role vis-a-vis the interrogations. (Others, like Baumgartner and Moulton, were happy to make JPRA the new enablers of coercive interrogation.) Someone tried to spike the waterboarding who heard about it. (The Operations doc has no author listed.) Could it have been someone like, or in league with Lieutenant General Robert Wagner at USFJCOM, who told Moulton at JPRA that the latter were overstepping their charter?

    The opposition to the torture was not only with the JAGs. But, on the other side of the coin, the accession to torture by higher ups in the military had a lot to do with its implementation. I don’t think Cheney would have succeeded without at least passive acceptance by the Joint Chiefs and other high military officers. — That doesn’t speak to the CIA program, really. But perhaps the damage could have been limited to the latter, if the military (who were afraid of Rumsfeld?) hadn’t capitulated or abstained at a high level.

  13. joanneleon says:

    Isn’t it strange that someone rewrote the descriptions of the contents of documents 6 and 7, rather than just copying/pasting the descriptions?

  14. burnt says:

    So, what other documents among the torturers’ greatest hits are not in searchable form? Leave a link in the comments and I’ll see what I can do about making it searchable.

  15. Hmmm says:

    Probably OT — Any chance the big scary weird underground construction project at the Naval Observatory (Chez Papa Dick at the time) could have been the construction of a SCIF?

  16. barryeisler says:

    An additional thought, of the “dog that did not bark” variety:

    If Yoo and Bybee, as diligent lawyers, really wanted to know whether waterboarding causes statutory “severe pain or suffering,” they didn’t have to speculate on organ failure and otherwise set angels dancing on pin heads — all they had to do was get waterboarded. What are we to make of their failure to pursue something so obvious, something that would have dispositively answered what they claimed was a fundamentally important statutory question?

    When I wanted to find out for one of my novels what it felt like to be zapped with a stun gun, I zapped myself. Not a great idea, you might say (my wife did, anyway, after I told her, and then some), but it was just a logical, obvious way to answer a question. For a novel! And yet Bybee and Yoo wouldn’t do something similar with the stakes infinitely higher and the answer far more important?

    Of course they wouldn’t. They already knew the answer. Margolis knows it, too.

    • emptywheel says:

      I was going to say the same thing Jim did–Levin at first gave some stilted approval for waterboarding in August 2004 (I suspect there’s more back story to it that we’ll eventually learn), then got waterboarded, then wrote his December 2004 memo, then seems to have been ambushed into setting them on track to approve it again (I suspect that Comey and Levin believed they could approve the “Techniques” memo, bu not the Combined (since you can’t waterboard unless people are on a liquid diet, or you’ll choke them to death), but they got punked twice over.

      What Levin knew (and I suspect Comey) is that there was no way around the CAT violation, no way around claiming we were doing this for American power and exceptionalism and not rule of law. But no one got to even the pragmatic stage, of saying, this is not effective. Much less the human rights stage of saying this is wrong.

      It’s like we’re a country of emotional midgets who can get beyond power to even efficacy.

    • timbo says:

      Yep, good point. If it really isn’t all that bad then, yeah, if it isn’t cruel and unusual, then why didn’t they just get it done to them so they could say definitively if it was cruel and/or degrading?

  17. barryeisler says:

    Thanks Jim and EW — just followed the link. Don’t know how I missed that, or forgot it, about Levin (did Jane Mayer write about this in The Dark Side? I think I read about him there). And it makes the other OLC lawyers’ failure to do the same the more telling. Not only *should* they have thought to do it, someone — Levin — *did* think to do it. And he concluded it’s torture.

    On the “how can it be torture if we do it to our own troops” meme, this is a lot like saying, “How can it be rape when husbands and wives do it every day? Or “How can it be slavery when lots of people do the same thing for wages?” If KSM volunteered for the treatment, and was provided with a safe word and an object he could drop to stop the procedure at any time, it wouldn’t be torture (and I gather this was what Levin was getting at when he talked about “the most limited of ways”).

    IOW, the critical difference between SERE and the real thing is that, in SERE, when the subject can’t stand it, the procedure instantly stops. In the real thing, when the subject can’t stand it, the procedure continues. To your point, EW, about emotional midgets — yes, one has to be stunted or tendentious indeed not to understand this obvious and fundamental difference.

  18. klynn says:

    EW writes:

    If we could trust the provenance of the documents in OLC’s SCIF, we could see what documents actually made it to OLC. But we can’t–there’s an apparent discrepancy between the multiple descriptions of the July 26, 2002 packet in the FOIA and what OPR reports Koester to have received.

    (snip)

    That document probably either got removed before it got sent to DOJ (in which case either Haynes or Rizzo is culpable) or it disappeared from a SCIF. Finding out which happened would place the smoking gun–intent to authorize a program of torture–in a member of the War Council’s hands.

    Jeff writes:

    But if you remember, Ogrisseg told Baumgartner, when asked to quickly, under pressure, produce some statement about waterboarding’s effects, that he (Ogrisseg) didn’t know much about it… because they didn’t do waterboarding at Air Force SERE.

    Well, that should have perked up our ears then, but it just seemed like a screw up, until I came across evidence that waterboarding was far more controversial at JPRA then we previously knew. I hope to be ready with an article on this by mid-week.

    Between the two of you, we are so much closer to narrowing down who pulled the doc portions on torture. Once Jeff posts, we’ll see who was less opposed to waterboarding. That should be another bread crumb.

    Now, I have no idea “why” but this quote from the Salon article written by Jon Eisenberg regarding Al-Haramain, sticks in mind, as I think about your dot connecting which involves DOJ, the Executive office and scif’s.

    At that point, we brought up the subject of Tom Nelson. Goldberg told Hogarty that we wanted to be able to telephone Nelson on a secure line during the drafting session, or, alternatively, have him fly down from Portland immediately to join us personally. Hogarty politely refused. Goldberg asked on whose instructions she was acting, and she named one of the DOJ attorneys, Andrew Tannenbaum — although, as she put it, Tannenbaum had received the instructions from “higher up.”

    (my bold)

    It would be interesting to hear Jon Eisenberg’s perspective on your finds after what he has been through.

    OT:

    If you have never read the Salon piece, it has some amazing twists and turns — and all complete with scif’s,DOJ,and breaking the law to violate rights. Funny that. Note where DOJ hand picks who can assist with the case. Picking Steven Goldberg over Tom Nelson. Quite interesting. Wonder who knew Tom Nelson and Steven Goldberg?

  19. Gitcheegumee says:

    And ofcourse there was that 12/19/07 FIRE at the Eisenhower Executive office building,where Addington had his office.Also, Cheney’s Ceremonial office.

    Smoking memos?

    Does anyone know if there were any memos relating to the alleged torture of John Walker Lindh ,captured in Afghanistan in 2001?

    As I posted earlier on another thread,Lindh took a plea deal offered by Chertoff,on July 15,2002- just the day BEFORE the July 16,2002 Yoo meeting.

    Part of Lindh/s deal was a gag order to NOT talk about torture he received at hands of his captors while aboard torture ships.

    That same day of the Yoo meeting ,7/16/02,Bush publicly unveiled the Homeland Security Plan to the country.

  20. Gitcheegumee says:

    The link to the interrogation diaries site has some real specifics about the logs kept on Lindh and other particulars.

    The McGovern piece is excellent too,and states that Lindh was the first to be tortured,and mentions Radack’s admonishment to NOT engage in torture which was ignored,:

    The Interrogation DiariesYou probably remember John Walker Lindh, the American Taliban. …. the argument being that three of the people waterboarded seem to have provided …
    interrogationdiaries.blogspot.com/ – Cached – Similar

    Waterboarding for God, With Decency and CompassionFeb 10, 2008 … Waterboarding has been condemned as torture for a very long time. …. the Whistle in the Case of “American Taliban” John Walker Lindh, …
    http://www.informationclearinghouse.info/article19323.htm – Cached

Comments are closed.