The Advance Declination Letter and the White House Meetings

John Sifton has a piece at JustSecurity on a key new detail in the torture report: a description of a letter the CIA lawyers were sending around discussing getting an advance declination (though unless I’m misreading the report, this email chain is dated July 8, not April).

But perhaps the most important revelation in the report is not about the torture itself but rather about the legal culpability of the CIA. The report contains a key passage on page 33 revealing that senior lawyers at the CIA in mid 2002, at the very beginning of the CIA’s program, drafted a letter to the Attorney General in which it is expressly acknowledged that the interrogation tactics that came to be known as “enhanced interrogation techniques” violated the US torture statute. The draft letter requested that the Attorney General provide the CIA with “a formal declination of prosecution, in advance”—basically, a promise not to prosecute, or immunity. The document was shared even with CIA interrogators involved in the nascent program. From the beginning, in other words, key CIA officials were well aware that these techniques were clearly unlawful.

While the date is off slightly, that appears to be the email chain I pointed to in this post, which was described as — and may be — “an issue that arose.” (Remember that CIA had already exceeded the guidelines they’d been given on sleep deprivation.)

That least to the timeline laid out in this post (though the post was wrong about ongoing torture — Abu Zubaydah was being held in isolation at that point).

As I pointed out in an earlier post, when Counterterrorism Center lawyer Jonathan Fredman sent the torturers in Thailand a green light for torture in August 2002, he relied on language about intent from a July 13, 2002 fax from John Yoo to John Rizzo rather than the finalized August 1 Bybee Memo. In a second post on this, I also showed that both of Yoo’s nominal supervisors–Jay Bybee and John Ashcroft–claim they knew nothing about that fax. In this post, I’m going to show how that fax appears to arise out of DOJ discomfort with CIA’s torture program.

As the timeline below shows, Yoo dated (but did not send) the fax the same day that the numerous parties involved in reviewing the Bybee Memo had an apparently contentious meeting at which they discussed the draft memo as well as the CIA’s torture plan (I’m doing a big update on the Torture Timeline, so some of this is not reflected in the timeline yet).

July 10, 2002: John Yoo tells Jennifer Koester that they will present the Bybee memo to NSC at 10:45 on July 12 (and names the Bybee Memo the “bad things opinion”!).

July 11, 2002: John Yoo and Jennifer Koester have briefing session with Michael Chertoff on Bybee Memo.

July 11, 2002: An OLC paralegal cite-checks the draft, and someone schedules a July 12 meeting with Alberto Gonzales and a July 13 meeting with (effectively) NSC.

July 12, 2002: First draft of Bybee Memo distributed outside of OLC.

July 12, 2002: John Yoo meets with Alberto Gonzales (and either David Addington or Tim Flanigan) on Bybee Memo.

July 13, 2002: John Yoo and Jennifer Koester present July 12 draft to John Rizzo, John Bellinger, Michael Chertoff, Daniel Levin, and Alberto Gonzales. Rizzo provides overview of interrogation plan. Chertoff refuses to give CIA advance declination of prosecution. Levin states that FBI would not participate in any interrogation using torture techniques, nor would it participate in discussions on the subject.

July 13, 2002: Rizzo asks Yoo for letter “setting forth the elements of the torture statute.”

July 15, 2002: John Yoo faxes John Rizzo July 13 letter on the torture statute.

July 15, 2002: John Yoo sends Jennifer Koester an email telling her to include a footnote in the opinion stating that they had not been asked about affirmative defenses like necessity, self-defense, or commander-in-chief powers.

July 16, 2002: John Yoo and Jennifer Koester meet with Alberto Gonzales and (probably) David Addington and Tim Flanigan. Yoo shared the July 13 fax with them. At the meeting, it is decided that Yoo will include Commander-in-Chief and other affirmative defenses in Bybee Memo.

July 16, 2002: In response to earlier request from Michael Chertoff (perhaps as early as July 13), John Yoo has Jennifer Koester draft, but not send, a letter to CIA refusing a letter of declination of prosecution.

July 17, 2002: George Tenet meets with Condi Rice, who advised CIA could proceed with torture, subject to a determination of legality by OLC.


What seems to have happened is the following. Yoo and Koester were all set for an NSC meeting on July 12, perhaps until they had a July 11 briefing with Chertoff. In any case, something made them reschedule that NSC meeting to arrange an Alberto Gonzales (and presumably, Addington) meeting first. After which they appear to have had an incredibly contentious meeting with Bellinger, Chertoff, Levin and others. Perhaps the fact that John Rizzo presented the latest interrogation plan (which, we suspect, was already in process anyway) made things worse. We do know, for example, that mock burial remained in the plan, even after Soufan had balked when Mitchell tried to use it two months earlier. Whether because of Rizzo’s presentation or Yoo’s draft memo, at the meeting Chertoff definitively refused an advance declination and Levin announced that FBI would have nothing more to do with CIA’s torture program.

And so Rizzo, perhaps noting that the head of DOJ’s Criminal Division and the FBI Chief of Staff were reacting rather unfavorably to CIA’s torture plan, asked Yoo for some kind of cover. In response, Yoo wrote a memo raising the bar for prosecution of inflicting severe mental suffering incredibly high.

What I find particularly interesting is the 2-day delay before Yoo sent the fax, dated July 13, to Rizzo on July 15. That likely coincided with another delay; we know Chertoff asked Yoo to send Rizzo a letter refusing advance declination sometime between July 13 and July 16, but Yoo didn’t act on that request until he had sent Rizzo his July 13 fax already.

Did Yoo get both the request for the letter refusing advance declination and the request for the letter laying out the torture statute at the same contentious meeting?

And then there’s one more unexplainable coincidence. On the same day Yoo sent the July 13 memo (on July 15), Yoo instructed Koester they not only wouldn’t include any affirmative defenses in the memo, but they would claim they weren’t asked for such things. Yet that happened just a day before heading into a meeting with Gonzales and (almost certainly) Addington, at which they did decide to include such things. And incidentally–a fact I hadn’t noted before–Yoo gave Gonzales and (almost certainly) Addington a copy of his July 13 fax at the same meeting where it was decided to add affirmative defenses to the Bybee Memo.

I can’t prove it. But it appears that Yoo wrote the July 13 fax in response to serious reservations from Chertoff and Levin. And in response to that, Addington directed him to add a bunch more defenses (literal and figurative) into the Bybee Memo.

One last point. As I said, one key difference between the July 13 fax and the Bybee Memo is that Yoo rebutted an obvious objection to his reading of how the Torture Statute treated intent with severe mental suffering.

It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute.

Any bets on whether Chertoff and/or Levin made precisely this argument at that July 13 meeting?

That language — about whether a defendant specifically intended to threaten a victim with imminent death — was reportedly what Jonathan Fredman used to exonerate the people who killed Gul Rahman.

One thing is critically important about this: this is precisely the period when Alberto Gonzales and David Addington were closely involved with the torture report. All this pre-exoneration for crimes came from the White House.

6 replies
  1. scribe says:

    Excellent pull-together, yet again, EW.
    By way of comment, the one f–k whose presence is conspicuous by his silence on the TV defenses of torture remains David Addington. Ensconced, last I recall, in some sinecure at Heritage Foundation. No doubt cooking up new shit.

  2. bloopie2 says:

    [Torture]: “An illegal and immoral activity that was undertaken by the government on the basis of ginned-up legal justifications, and kept secret from us, and lied about to Congress and everyone else, and at the end of the day ended up hurting us when it was finally revealed.”

    Just think about it. How many, many, many activities of government – aside from torture — does that one sentence describe? … [long pause to reflect]

    Do you know anyone who’s involved in “secret surveillance” litigation (or lawmaking)? Tell them to cite the torture report next time the Feds say “You can trust us”. Until now, they’ve had to fall back on recitations of past activities such as the MLK spying. Now, there is a current-day, real-life situation to throw out there – flat-out proof that you truly can not trust this government.

    Or, know anyone who’s involved in FOIA litigation? Tell them to cite the torture report next time the government says, “This is secret, and you have to trust us”. Bullshit.

    And how many times has the government convinced a judge, in secret proceedings, that “extremely grave damage to national security” might occur – on the basis of lies like the torture lies? How many unsupported Attorney General declarations have been submitted to courts, on the basis of lies like the torture lies?

    “Trust the government?” Maybe now people will finally put a nail in that argument.

  3. RUKidding says:

    Good catch. Well some citizens are still opining that the dastardly evil D-Team has wrought great harm on our nation by exposing us to yet more Terrorissssss!!11!! by revealing the Torture Program by the CIA. We should be shhhh shhhh so quiet about it bc we don’t want those evil evil evil dastardly Terrorissssssss attacking our shining city on the hill because We wear the White Hats goddamnit!
    Denial is not just a River in Egypt. Many citizens simply don’t want to know and will happily ignore this sh*t bc they choose to “trust the govt” – even those who rail against (often most especially by those who rail against big gubmint).
    CIA engaging in plausible deniability in the way-back machine? Color me shocked! Shocked I tells ya!! Whodda thunk it.
    BTW of course everyone realizes that this is neither the first, nor the last, time that the CIA has tortured people. Been happening from the start. Just ask the good citizens of Chile for starters. Think the torture there in 1973 “just happened” only due to the Chilean military? Oh really?

  4. galljdaj says:

    “memo” or White Paper?! It more than makes me wonder, about why and if, the two title descriptions are intentional. Is there a more intense meaning in the legal sense between the terms? Are the documents the same?

    I read the White Paper, and have written White Papers within my responsibilities. The terms are much different in my world. What I read signed by lil jay bybee(disrespect intended) was a White Paper, and was titled as such.

    Is there a legal dodge going on?

  5. wallace says:

    quote”The draft letter requested that the Attorney General provide the CIA with “a formal declination of prosecution, in advance”—basically, a promise not to prosecute, or immunity. The document was shared even with CIA interrogators involved in the nascent program. From the beginning, in other words, key CIA officials were well aware that these techniques were clearly unlawful.”unquote

    question . HOW can the DOJ “legally” decline to prosecute criminals who clearly broke the law? Is not that OBSTRUCTION OF JUSTICE?

    answer. Of course it is. Now move on along..nothing to see here.

    RUKIDDING said:
    quote”BTW of course everyone realizes that this is neither the first, nor the last, time that the CIA has tortured people. Been happening from the start. Just ask the good citizens of Chile for starters. Think the torture there in 1973 “just happened” only due to the Chilean military?”unquote

    1973? Try 1945 Even before the CIA. The OSS…

    quote” It is an inescapable fact that from the beginning of the US occupation of Japan, General MacArthur, President Truman, John Foster Dulles, and others, knew all about the stolen treasure in Japan and the continuing extraordinary wealth of the Japanese elite, despite losing the war.

    In an official report on the occupation prepared by MacArthur’s headquarters and published in 1950, there is a startling admission: “One of the spectacular tasks of the occupation dealt with collecting and putting under guard the great hoards of gold, silver, precious stones, foreign postage stamps, engraving plates, and all currency not legal in Japan.

    Even though the bulk of this wealth was collected and placed under United States military custody by Japanese officials, undeclared caches of these treasures were known to exist.”

    MacArthur’s staff knew, for example, of $2-billion in gold bullion that had been sunk in Tokyo Bay, later recovered. Another great fortune discovered by U.S. intelligence services in 1946 was $13-billion in war loot amassed by underworld godfather Kodama Yoshio who, as a ‘rear admiral’ in the Imperial Navy working with Golden Lily in China and Southeast Asia, was in charge of plundering the Asian underworld and racketeers. He was also in charge of Japan’s wartime drug trade throughout Asia. Kodama specialized in looting platinum for his own hoard. As this was too heavy to airlift to Japan, Kodama also helped himself to the finest gems looted by his men, taking large bags of gems to Japan each time he flew back during the war.

    After the war, to get out of Sugamo Prison and avoid prosecution for war crimes, Kodama gave over $100-million in US currency to the CIA. He was also, amazingly, put on General Willoughby’s payroll, and remained on the CIA payroll for the rest of his life, among other favors brokering the Lockheed aircraft deal that became a major scandal for Japan’s Liberal Demopcratic Party. Kodama personally financed the creation of the postwar political parties that merged into the Liberal Democratic Party (LDP), strongly backed to this day by Washington.

    Both Kodama and his underworld associate Sasakawa Ryiochi, were then involved with the CIA in joint recoveries of Japanese war-loot from the Philippines.

    On September 2, 1945, after receiving official notice of Japan’s surrender, General Yamashita and his staff emerged from their mountain stronghold in the Kiangan Pocket on Luzon, and presented their swords to a group of U.S. Army officers led by Military Police Major A.S. ‘Jack’ Kenworthy, who took them to Bilibad Prison outside Manila. Because of gruesome atrocities committed earlier by Admiral Iwabuchi Kanji’s sailors and marines in the city of Manila (after Yamashita had ordered them to leave the city unharmed), the general was charged with war crimes. During his trial there was no mention of war loot. But there was a hidden agenda.

    Because it was not possible to torture General Yamashita physically without this becoming evident to his defense attorneys, members of his staff were tortured instead. His driver, Major Kojima Kashii, was given special attention. Since Yamashita had arrived from Manchuria in October 1944 to take over the defense of the Philippines, Kojima had driven him everywhere.

    In charge of Kojima’s torture was a Filipino-American intelligence officer named Severino Garcia Diaz Santa Romana, a man of many names and personalities, whose friends called him ‘Santy’. He wanted Major Kojima to reveal each place to which he had taken Yamashita, where bullion and other treasure were hidden.

    Supervising Santy was Captain Edward G. Lansdale, later one of America’s best-known Cold Warriors. In September 1945, Lansdale was 37 years old and utterly insignificant, only an advertising agency copywriter who had spent the war in San Francisco writing propaganda for the 0SS. In September 1945, chance entered Lansdale’s life in a big way when President Truman ordered the OSS to close down. To preserve America’s intelligence assets, and his own personal network, OSS chief Donovan moved personnel to other government or military posts. Captain Lansdale was one of fifty office staff given a chance to transfer to U.S. Army G-2 in the Philippines.” unquote

    And thats only the beggining. Once you know the true history of the CIA, you’ll begin to understand how we got to the point we’re at today. And there is no better source for this info than Col. Fletcher Prouty’s book, “The Secret Team” will never find a copy. The CIA made sure of that.

    Fortunately, it got put online..and the CIA will NEVER remove it now. Thank you Col Prouty.

  6. ess emm says:

    Is Feinstein referring to the Sept 17 gloves Come Off MON in this tweet? Whoa, that’s huge, if true

    Covert authority did not include authorization to use coercive interrogation techniques. #ReadTheReport
    @SenFeinstein 10:52am – 11 Dec 14

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