Steven Bradbury: Breaking His Own Rules Even as He Writes Them
I’m working on a big post on the May 2005 Bradbury Memos. But I wanted to point out this tidbit about them in the interim.
As you might recall, the Jim Comey emails (probably leaked by the torture apologists last summer) provide a few clues about why Comey objected to the May 10, 2005 Combined memo. Significantly, he thought the memo was too general because it did not stick to the facts regarding one detainee who had already been tortured.
I also suggested a possible way to narrow the focus of the second opinion to be more responsible.
[snip]
[Alberto Gonzales’ Chief of Staff Ted Ullyot] said Pat had shared my concerns, which he understood as concerns about the prospective nature of the opinion and its focus on “prototypical” interrogation.
[snip]
He mentioned at one point that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.
As it happens, just six days after the Combined memo was published, Steven Bradbury issued a set of “Best Practices” for OLC. On at least two counts, his “Best Practices” violated the entire set of the May 2005 memos. In particularly, though, he warned against writing memos that were either retrospective or overly general.
The legal question presented should be focused and concrete; OLC generally avoids undertaking a general survey of an area of law or a broad, abstract legal opinion.
[snip]
Finally, the opinions of the Office should address legal questions prospectively; OLC avoids opining on the legality of past conduct (though from time to time we may issue prospective opinions that confirm or memorialize past advice or that necessarily bear on past conduct).
And yet, the Combined memo suffered from the fault of being both retrospective to that one detainee and overly general.
I wonder if that’s one of the reasons why Michael Mukasey spiked Office of Professional Responsibility’s proposed review of these memos.
When he wrote those rules, he didn’t intend for them to apply to HIM!
Boxturtle (A persistant “misconception” in BushCo)
off-topic, turtle stuff
Hi BT, here’s a turtle report
we’re happy to announce that all the turtles are now present and accounted for
flash, the box turtle went on a walk-about last October. I was hesitant to report it, cuz I thought Flash had been stolen. Turns out, Flash was just hiding out (or whoever stole him brought him back) He came walking up the driveway about 12:30 sunday afternoon
Squirt has a new habitat, and Flash was not welcomed to the new tortoise digs. So we’re working on a new place for Flash. Squirt’s new pad is tortoise friendly, so my turtles ain’t living in a cardboard box any more. Flash should be upgraded from a crate to a habitat within the week
In Flash’s absence, I adopted a new tortoise (a Sulcata, or African Spurred Tortoise). He came with a large aquarium that doesn’t really provide a good habitat. so the new guy is getting a tortoise friendly habitat along with flash. but he doesn’t have a name yet, so he’s just “the turtle to be named later
billybob and gertie, the red eared sliders, are still growing. the new aquarium is slated to become the “slider tank”. When that project is complete, all of the turtles will have indoor habitats, just in time for them to return to outdoor turtle world
that is the pre-spring turtle report
as for myself, I’m off the cable tv, and my computer time is limited to 3 – 5 hours a day (and that ain’t much on dialup)
I got kansas in the NCAA Pool (do I get another hubcap for my omniscient pick), and I got dibs on the New York Jets to win the next superbowl
other than that,I got a real life in the meat world now, so if I don’t get back to ya, don’t take it personally …
happy trails to you, until we meet again …
Your issued link for the Best Practices memo goes to the OPR report, but I wondered if you wanted it to go to the BPM directly?
http://www.justice.gov/olc/best-practices-memo.pdf
There’s also that bit about getting the ageny’s own analysis unless the request if from the AG or a coupleo of other guys – the whole soliciting views part is fried – While Taft and state getting deliberately cut out is b4 his time, you’d think he’d be getting that Crim Div input he says they would normally get and you have to wonder where those CIA and DoD analysis are coming from – surely the Beaver memo wasn’t the sum total.
Yeah, he was breaking his own rules left and right. Probably one of the reasons MUkasey really didn’t want OPR to review this. BC unlike Yoo, for Bradbury there could be no question whether he had clarity of what standards he should follow.
BTW – I think that Rotunda gives you a bit of the answer into the spikage of the Bradbury (although there were so many reasons it was advantageous to DOJ).
http://www2.nationalreview.com/dest/2010/02/23/pinionletterrebybeememomay42009.pdf
From Rotunda’s letter attempting to exonerate Yoo:
citing mostly himself, but with a bit of case law support: RONALD D. ROTUNDA & JOHN S. DZIENKOWSKI, LEGAL ETHICS: THE LAWYER’S DESKBOOK ON PROFESSIONAL RESPONSIBILITY §1.2-4 (Thomson-West/ABA, 2008 ed.), footnote 21 omitted citing, Kline v. First Western Government Securities, Inc., 24 F.3d 480 (3d Cir.1994), cert. denied, sub nom., Arvey, Hodes, Costello & Burman v. Kline, 513 U.S. 1032, 115 S.Ct. 613, 130 L.Ed.2d 522 (1994) as well as numerous other authorities.
What the Comey emails do are to prove that Gonzales and Bradbury knew that the facts regarding the combination of tactics (and the individual tactics as well) being used on detainees were being falsely presented, in that they also included those techniques he refers to as the “Preliminaries.”
They knew a lot more was being done when they issued the memos, with respect both to already authorized torture and also with respect to the inclusion of the Preliminaries – and by 2005 they also know that the isolation from the outside world had gone on for much much longer than any period of time set out in the memos.
By the time Bradbury wrote his memos, he knew that he was being give false and misleading facts for those memos.
Lawyers wrestle with that all the time in requests for opinions. That’s why most firms require committees to review them, because the partner in charge might be too tempted to consider his or her billing opportunity more than the law, and it’s the firm’s name on the line.
Presumably, that’s why Lehman had to go to London for a legal opinion about its accounting fraud, though how a firm admitted in England and Wales could opine as to American law is a little vague (though I imagine they have staff admitted in the necessary US jurisdiction(s)). I would also imagine that “value billing” entered into the picture somewhere.
In government practice, however, a lawyer can’t be so blithe in limited his or her opinion to the facts presented, if he or she knows they are inaccurate or materially omit something important.
This ia the huge problem they have IMO. There was enough secrecy and things not committed to writing that Yoo can adopt a pretense of not knowing some of what was actually going on, but Bradbury had the IG reports in hand and documented nudges to him on the “preliminaries” as well as all kinds of reports starting to appear in public records materials (lawsuits and press reports).
He could no longer adopt the pretense of limiting his opinion. For that matter, He and Comey and everyone else were in the same position in his other May opinion, but I gather that Gonzales had already given the OK on that torture and they were papering over for their superior officer at that point. Actually, I’d be more persuaded that Comey would be willing to be in the paper-over if it had been Ashcroft who had approved the torture instead, but I guess they aren’t that back tracked on their opinions. And since he had approved all the earlier torture, it gave him a leg up for them to paper over similar torture.
I’m no fan of Ashcroft, but if Gellman’s account of The Hospital Scene is correct, then Ashcroft told Card and Gonzo that he’d only signed earlier because he’d not been provided full and complete information.
Once he was tipped off to that fact, he refused to sign.
Which raises the question: if my dot-connecting is accurate, then who set AG Ashcroft up to unwittingly sign off for torture…?
(I’m assuming that Ashcrofts long ago dropped Addingtons from the Christmas card list, if they were ever on it. I’ll bet Comeys are still on the list, however.)
————-
Freep, thx for the update.
But don’t get lost…!
That torture happened in 2004, so definitely under Ashcroft. And I’m agnostic on whether it happened before or after the CIA IG report came out, and equally agnostic over whether it happened in DOD or CIA custody. Actually, it’s probably a combination of both.
And that’s the torture taht we can best pin down!
EPU’d but the May 2005 opinion is for a 2004 Ashcroft ok’d torture?
Comey really was putting bubble wrap around Ashcroft.
BTW, Lintseed Graham is denying there is any deal re GITMO.
However, AG Holder and DNI Blair have reached agreement on the release of GITMO detainees – from the Miami Herald:
Their letter to the Senate leadership of the SSCI and SASC Committees is here (3 page PDF).
I wonder if any of the relevant OLC opinions/letters were not truly retrospective.
Everything we’ve seen seems to have been “documented” after the fact and one would think that any prosecutor of even a modicum of common sense would reach the conclusion that such backfilling was an impossible to ignore tipoff that the conspirators were desperately trying to cover
uptheir trail.Not that we have such prosecutorial types in the DOJ.
No. None were.
You’ve got the Bybee Memos, which even the govt agrees were issued after torture started.
You’ve got the Gitmo letter (which Yoo had consulted Haynes on) which was signed a week after al-Qahtani’s torture program began.
You’ve got the Yoo memo which was at least partly to retroactively authorize al-Qahtani’s treatment, as well as expand the intent and CAT sections of Bybee in a way that would be useful for CIA, which was secretly also relying on it.
And you’ve got these memos.
None, nada, none of these were written before teh fact.
And should our Titan of Timelines ever have some free time (yeah, like that is a commodity that EW has oodles of), I would love to see this most critical point documented because I think it lays bare the very essence of the illegality as almost nothing else can or has.
Almost all of the reporting in the MSM has missed this critical point. Yes, they’ve reported on this or that technique and some have even labeled one or another properly as torture.
But none of them to my knowledge have truly divined the importance regarding that “retrospective” construction of OLC memos and opinions to attempt to provide “legal cover” for the Bush/Cheney Administration’s criminal actions.
If, and I do understand it to be a big if, you should find yourself with that wee bit of free time, this is just my humble suggestion of what it might look like:
December 2001 – Detainee ABC undergoes the torture techniques of X, Y, and Z in the hands of CIA and/or CIA contractors. Specific government acknowledgement of this is documented here, here and here (quotes, pages and links to the specific docs).
March 2002 – Yoo/Bybee OLC documentation providing retrospective “legal cover” for the specific torture techniques of Detainee ABC.
May 2002 Detainee DEF undergoes the torture techniques of X, Y, and Z, and new torture techniques of Q, R, and S in the hands of CIA and/or CIA contractors. Again, specific government acknowledgement of this is documented here, here and here (quotes, pages and links to the specific docs).
August 2002 – Yoo/Bybee OLC documentation providing retrospective “legal cover” for the specific torture techniques of Detainee DEF.
Repeat for each retrospective OLC memo and opinion.
And if known, inclusion of the same level of documentary evidence of “oral approvals” prior to any detainee’s torture and the subsequent OLC “legal cover” documents, and who, if known, provided that “oral approval” (i.e. OVP, Rice, Hadley, Gonzales, etc.).
Again, to my mind, this would seem to be the ultimate damning evidentiary culmination of all the fine work you’ve done thusfar on The Torturers and their crimes.
And don’t hesitate to feel free to blow me off with “maybe when I find some free time”. Maybe in your next book. *g*
Maybe one more step between your first (2001) and second (2002):
“Oral approval given by Q”
Bob in AZ
More likely. *g*
A shorter synopsis version of my comment:
1. Torture first.
2. Construct sham “legal cover” documents.
3. Rinse.
4. Repeat.
Standing on my chair, cheering…
And also cheering for @16, @17.
Or do we now ‘rewind’ so automatically that the press has forgotten that actual, lived experience doesn’t come with a ‘rewind’ button…?
Blush!
No, I’ve been thinking about doing such a thing. I was originally going to do just the opinions with the torture they covered. But you made a good suggsetion.
I can easily envisage you telling a story, a la Jane Mayer, where Cheney instructs his minions (i.e. the rest of the government) to jump on over to the “dark side”, and be damned about the rule of law.
And only later do his minions worry about their criminal culpability, and decide to cover their own tracks with sham “legal cover” opinions.
And Cheney, to this very day, he just doesn’t plain give a damn. Sociopaths are like that.
Yes, which is a point that I only understood from reading Emptywheel the past few years; otherwise, I’d be clueless.
But knowing this, and watching the documentary evidence mount, I can only request, ask, urge, and respectfully insist that EW put this task up on her busy schedule.
Because it’s obscene that people who did try to honor the law, whether fired USAGs or JAGs or FBI officers, has their efforts and career damage blithely ignored by the lax inattention the media has shown to this topic.
And it’s criminal that Cheney and his gulag-makers get away with brazenly, shamelessly using ‘laundered laws’ to shield their depraved conduct.
I’m convinced that many people would easily ‘get it’ if they saw the timeline laid out. And given the damage wrought, they might insist on more ‘LEGAL accountability’ for Cheney and his minions.
Yep, that’s evidence of a conspiracy to torture and to obstruct justice being done to those who tortured people they rounded up. Some of these people were killed outright as well. I want to know who watched those tapes. And even more, who taped those tapes. Because those are the people who need to be deposed. And the people who did this to other human beings, somehow claiming that they were doing it to save others? Well, they need to be brought up on charges and made to explain their rationale to a jury of their peers. My guess? They’ll try to get the trial before a judge instead, preferrably one of the judges who wrote the memos to cover for the torture in the first place.
And this is where we get into conspiracy really quickly. Conspiracy to obstruct justice. It’s getting more and more clear cut. And if the United States legal system won’t act then what country will act to enforce GC and CAT where it needs to be applied to individuals acting like they don’t have to behave themselves just because they happen to run the most powerful military on the planet?
Comey:
My translation: “You people make shit up after the fact all the time, covering the sleazy butts of those who give oral advice and then plead for a written ‘get out of jail free’ card” after the fact.
I’m just leaving an email breadcrumb in hopes someone, somewhere, might pay attention someday.”
Like Supreme Court opinions, OLC opinions should address existing controversies and be limited to the facts explicitly presented by the agency asking for formal advice.
The practice of giving informal advice – legal laundering (as well as rabid insubordination) as John Yoo practiced it – should be wound down. That’s the sort of thing an agency can get from its own lawyers. When something is important or novel enough to need an OLC opinion, the request had better come in writing and the OLC should return the favor.
The advice needs to be limited to the facts disclosed, and not venture into hypothetical “what ifs”. Those are a bureaucrat’s dream. Ambiguity and obfuscation permit nearly unfettered discretion in doing their princes’ bidding, but such discretion almost certainly would run afoul of the law, reasonably interpreted.
“Legal laundering” is an apt term.
It does not seem like Comey was fighting for anything so great.
Reliable Intelligence: “Prisoners Boiled Alive”
http://seaclearly.wordpress.com/2009/11/11/reliable-intelligence-prisoners-boiled-alive/
Cheney’s Shadow Office (CSO): “We need intelligence reports which state that Prisoner ‘A’ confirmed Plot ‘B,’ and confessed to being a member of the conspiracy, for reference in our national and worldwide media campaign.”
CIA: “But, none of our intelligence corroborates your request.”
CSO: “Please update and resubmit.”
CIA: “We have already researched this.”
CSO: “Update and resubmit!”
CIA: “Understood.”
CSO (9 Days Later): “Did prisoner ‘A’ confirm and confess to. . . .?”
CIA: “Not yet.”
CSO: “We need intelligence reports which state that Prisoner ‘A‘. . . .”
CIA (1 Day Later): “Prisoner “A” has confirmed and confessed to. . . .”
CSO: “Good work. Now, the president can go on television and make a (prepared) prime-time speech.”