2005 Story: Chertoff Opposed Technique Threatening Imminent Death

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I’ve been poking DOJ’s version of the events leading up to the Bybee Memo and hope to elaborate on that at a further time. But for now, I want to point to this 2005 article, apparently attempting to scuttle Michael Chertoff’s nomination to be Secretary of Homeland Security by raising his role in approving torture (there are a couple of versions of this article, so if you’re having problems seeing what I’m looking at try this post). The article clearly states that Chertoff opposed the approval of a technique that involved the threat of immediate death.

But in other instances Mr. Chertoff opposed some aggressive procedures outright, the officials said. At one point, they said, he raised serious objections to methods that he concluded would clearly violate the torture law. While the details remain classified, one method that he opposed appeared to violate a ban in the law against using a “threat of imminent death.” [my emphasis]

We now know, of course, that CIA was trying to get mock burial approved.

This revelation is interesting because it confirms what the documentary evidence suggests: that Chertoff was one, if not the major, source of trouble for David Addington’s plan to green light torture. And given the story’s report that Chertoff approved waterboarding even while he opposed what was probably mock burial, it suggests that the problem was not necessarily Chertoff’s squeamishness, but rather Ali Soufan’s reaction, when the torturers first threatened to use mock burial in May 2002, that it was torture. Furthermore, all of this accords with the work I’ve done on the role of the July 13 memo, which shows that CIA had an “issue arise” in response to which they got John Yoo write a memo excusing things like death threats (but also disruption of the senses) by invoking expert advice.

The story is interesting for other reasons, including its fairly early reference to SERE’s role in the torture techniques.

Many of the interrogation techniques in the C.I.A.’s list were adopted from the Air Force’s Survival, Evasion, Rescue, and Escape training program.

But for the moment, I’m just noting it because it does seem to confirm the narrative we’re seeing in the documentary evidence.

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29 replies
  1. klynn says:

    Furthermore, all of this accords with the work I’ve done on the role of the July 13 memo, which shows that CIA had an “issue arise” in response to which they got John Yoo write a memo excusing things like death threats (but also disruption of the senses) by invoking expert advice.

    (my bold)

    IANAL. I asked this in the past. Forgive me for asking again.

    From a legal perspective, how can internal folks and gov contractors be considered expert advice?

    Am I wrong in my understanding that expert advice would include no conflict of interest in the expert giving the advice?

    If your expert has conflict of interest, then does that not reflect motive for crime?

  2. JasonLeopold says:

    During his confirmation hearing when he was asked about the torture memo back in 2005 (which would be the first memo right?) Chertoff responded to Levin’s question as to whether he agreed with the definition of torture:

    As I said, because I don’t remember the way it was specifically worded, I can tell you that my role in dealing with the memo was limited to this: I was asked to communicate what my views were as a kind of practical prosecutor about how a statute like the torture statute would be applied. And my essential position—again, this is talking to other lawyers, so it’s really lawyer to lawyer kind of discussion—was that when you are dealing with a statute with a general standard and an intent issue, the question of good faith and an honest and reasonable assessment of what are you doing becomes critical, and whether or not a particular type of thing that someone proposes to do violates the statute is going to depend, or whether a prosecutor views it as a violation of the statute, is going to depend a great deal upon whether the particular technique is specifically mentioned in the statute, or if it’s not, whether the people who are thinking about doing it are making an honest assessment about whether what they’re going to do rises to the level of the statute. I guess my bottom line advice was this: you are dealing in an area where there’s potential criminal liability, you had better be very careful to make sure that whatever it is you decide to do falls well within the—what is required by the law.

    “whatever it is you decide to do” makes it sound that he had no idea about the techniques that were being proposed, but maybe I am misinterpreting his comments.

    • emptywheel says:

      We have very strong evidence he was briefed on the techniques: that was one of the things that happened in the July 13 meeting at which he said DOJ would give no advance declination.

      • JasonLeopold says:

        Without a doubt. The evidence you collected to show that he was briefed is compelling. Wondering what you think about this, in relation to Soufan. In this NYT story after Chertoff was confirmed there was mention about a secret FBI document about detainee abuse at Guantanamo Bay. Is it possible that the document in question could have actually been something related to what Soufan objected to or do you think it really is about the FBI’s objection to the torture techniques that took place at Guantanamo we learned about later. Also, note the last paragraph, which you have already rebutted and then some:

        But Democrats strongly objected to a decision by the Bush administration to withhold an internal Federal Bureau of Investigation document that, they said, might have answered their questions about whether Mr. Chertoff was aware of the abuse of terrorism suspects detained at Guantánamo Bay, Cuba. The Justice Department cited federal privacy laws as the reason to withhold the memorandum, which had been requested by Senator Carl Levin, Democrat of Michigan. Instead, Mr. Levin received an edited version.

        ”In Judge Chertoff’s case we know that during his tenure the torture policies authorized by Justice and given in effect by the Department of Defense were hotly debated,” said Senator Harry Reid of Nevada, the Democratic leader. The withholding of the document, Mr. Reid said, ”prevents us from truly understanding Judge Chertoff’s role.”

        Republicans, though, defended the decision, noting that at his confirmation hearing Mr. Chertoff testified he did not provide advice on the legality of specific interrogation techniques.

        • emptywheel says:

          There was a packet of documents on al-Qahtani’s torture–including the fight between FBI and DOD, but also on the allegations that DOD was pretending to be FBI, that didn’t show up until 2004. Is it possible that’s the document? Or is it something earlier, like the ICRC report? I’ve seen evidence from the 2007 ICRC report on the HVDs that they weren’t widely disseminated.

    • 1boringoldman says:

      “whatever you decide to do” sounds to me like verbage. In fact the whole response sounds like verbage, as in a word salad. He was asked if he agreed with the definition of torture [presumably in the OLC Memo]. He responded, “if there’s a law, you should think about being lawful.” That doesn’t sound very deep to me – and it certainly doesn’t sound like an answer to the question asked.

      • Jeff Kaye says:

        As they love to say in JSOC: “stay in your own lane.”

        “Hey. It’s not up to me to tell you what to do with all this torture business, but if you’re asking me, I’m just sayin’ watch yourselves. ‘Kay? Cause juries and prosecutors, you know, they may not think like you do. It’s not up to me to say what your job is, but, hey, you know, this is my input, and, oh yeah, I’m not going to sign off in advance on all of this and put my name on any get out of jail free card. Just so you know. But, I’m not gonna break omerta, either.”

  3. orionATL says:

    it is always a good feeling, and possibly a good omen, when confirmation of one’s chain of reasoning comes from a source outside the set of facts one is reasoning from.

    perhaps this is as good a place as any, ew, to say something about your recent work that has been on my mind for the last couple of weeks,

    culminating in the clause “he made time stand still”,

    what it seems to me you have been doing with the combination of the date-facts and the memo-facts

    is not just textural analysis or deconstruction.

    it is much closer to an exercise in extended logical thinking.

    the analogy that repeatedly comes to mind is

    debugging code

    (code that somebody else wrote and wrote badly – in this case wrote deliberately, misleadingly badly).

    to be able to do this reverse englisheering with any text is an impressive achievement.

    to be able to do it while constrained to take the law, which is not your field of training, into account, can only be described as an act of remarkable intellectual brilliance.

  4. 1boringoldman says:

    I think it’s amazing that the OLC Memo suggests the reliance on expert advice, but then doesn’t gather or even mention any. There’s a century of scientific writing about what kinds of life events cause persistent mental suffering [PTSD], but they never seem to get around to locating it – in spite of the fact that a lot of it comes from the military experiences in wartime. I tried to summarize some of it [1] [2], but there’s plenty more. To my reading, the listed procedures seem specifically informed by that information, and were designed to create psychological trauma. But the OLC Memo authors don’t even seem to know the information exists. Is there a library or Internet access at the DoJ?

    As for Chertoff, he seems to be one of the few people who had any common sense. It doesn’t take a Rocket Scientist to know that a Mock Burial is torture…

    • bmaz says:

      When a real lawyer creates a reliance opinion and is basing his advice on experts in the germane field and/or other sources, he cites and quotes the same liberally, commonly attaching the same, or affidavits summarizing the same, not only to convey the accurate foundation but to protect himself upon later inspection and dissection. Any decent attorney not only suspects, but anticipates his opinion will be taken apart at the seams in a trial court and drafts it to withstand such examination. You see diddly squat of that from the OLC opinions. The delineation of sources and foundation is either non-existent or disingenuous and duplicitous. There is a reason for that, and it is not a proper one.

  5. BoxTurtle says:

    I hate to say anything nice about Skeletor. I think I’ll assume he was motivated about personal exposure or political embarassment rather than any respect for the law.

    Boxturtle (I suppose it’s nice to know we still draw the line somewhere)

    • manys says:

      If you’re gonna have to find a reason not to torture, “personal exposure” works well for me.

    • emptywheel says:

      I hate to say anything nice about him too.

      And as I’ve said, he seems significantly motivated by the fact that Ali Soufan was out there, having called mock burial, but not waterboarding because he didn’t see it, torture to the torturers. That surely constrained his actions.

      That said, he was also a very experienced prosecutor, which none of the rest of these clowns were. And he was very realistic about what would work in front of a jury and what wouldn’t.

  6. earlofhuntingdon says:

    John Yoo, ever ready to find a loophole in the law where none exists, in order to excuse his political masters. It really is Confucian: his masters are right, whatever they do, because they are his masters. A law contradicting what they do, by definition, cannot not be correct. His academic attainments notwithstanding, he’s just a yes-man, better suited to Madison Avenue than a court of law.

  7. orionATL says:

    so michael chertoff, possessing serious legal questions about aspects of bush/tenet’s “america tortures” program,

    agrees to accept a federal judgeship in exchange for not acting further on his legal concerns about the admin’s drive to implement the “america tortures” program.

    what heroes the republican party gives us these days.

    sublime!

  9. JasonLeopold says:

    OT, this just out from the WaPo:

    Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill

    A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.

    Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military’s Joint Special Operations Command and has survived at least one strike carried out by Yemeni forces with U.S. assistance against a gathering of suspected al-Qaeda operatives.

    Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.

    “He’s in everybody’s sights,” said the U.S. official, who spoke on the condition of anonymity because of the topic’s sensitivity.

    • emptywheel says:

      Just threw up a post. There was an earlier Reuters article that wasn’t very good.

      Just odd, that no one seems at all interested in what due process there is for targeting American citizens who, previously had been believed to be engaged in First Amendment protected activities.

      • JasonLeopold says:

        cool. Will head over there to check it out. I wasn’t familiar with the Reuters report. It’s really odd and incredibly troubling. Just wondering what has happened recently, if anything, that now makes him a target of the CIA.

      • bobschacht says:

        Really!

        But hey, the Constitution is just a damm piece of paper, right?
        And the oath of office taken by elected Federal officials is just a meaningless bit of pro forma junk, right?

        Bob in AZ

  10. alinaustex says:

    bmaz

    Another question -even if the SOL has run out on a Prinicipal’s criminal activity -is it not at least in theory – possible to have ann impeachment in the House and conviction in the Senate to keep said Prinicipals from collecting government pensions, being made judges -etc.
    Assuming that there may be someday the Political Will to enforce these types of impeachment proceedings against say Cheney after the fact would not the spade work being done here by EW and others be invaluable to gain convictions in the Senate?

    • bmaz says:

      Absolutely that is a possibility. I have maintained for years that impeaching Alberto Gonzales, even if there is no stomach to go after Bush or Cheney, would be an excellent vehicle for delving into a whole host of Bush Administration wrongs.

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