The Standards for CIA Crimes

In the interest of describing why CIA’s efforts to invent a reason to torture Janat Gul are so important, I wanted to do a very quick summary of what I understand CIA’s legal means of avoiding criminal prosecution was.

Torture began — certainly at surrogates overseas — long before anyone even thought of having OLC write memos for it. At that point, the legal cover for the torture would have been only the Presidential Finding signed September 17, 2001 (which said nothing explicit about torture; but then, it probably also said nothing about killing US citizens with drones though it did cover the use of killing high value Al Qaeda figures with drones).

I believe Ali Soufan’s complaints about the methods used at the Thai black site created a problem with that arrangement. When he — an FBI Agent — came away saying what they were doing was “borderline torture,” it created legal problems for the CIA, because an FBI Agent had witnesses a crime. I think Soufan’s reaction to the coffin-like box they intended to use with Abu Zubaydah caused particular problems.

All that came to a head in July 2002, when lawyers responding to “an issue that had come up” asked for a pre-declination memo from Chertoff, even while they were trying, among other things, to get approval to use “mock burial.” I don’t know that Criminal Chief Michael Chertoff was all that squeamish about torture, except with Soufan’s complaint about the coffin, it made mock burial (and with it, I suspect, mock execution) unsupportable by DOJ.

On July 13, 2002, three things happened. John Rizzo presented the torture techniques to people at DOJ. Having had that presentation, Chertoff refused to pre-decline to prosecute. So John Yoo wrote a fax that CTC would ultimately use in crafting the legal direction to torturers (and in recommending against prosecution in the future).

Three days later, David Addington appears to have told Yoo to include presidential immunity language in more public OLC memos. All the important work was being negotiated via back channels (remember, Jay Bybee was busy protecting Cheneys’ Energy Task Force from any oversight); the front channels involving Condi Rice were in a large part show.

But that led to the position where CIA was working off a two page fax that Yoo had freelanced to produce which provided absolutely no description of or limitation on techniques. But DOJ held CIA it to the August 1, 2002 memo.

Within short order, CIA was using techniques that had never been approved. Importantly, they hosed down Gul Rahman before he froze to death, not waterboarding, per se, but an additional technique not approved by DOJ.

When Inspector General John Helgerson started investigating in early 2003, DOJ told him he could develop the fact pattern to determine if any crimes had been committed. So CTC worked with Jennifer Koester and John Yoo to develop their own legal guidelines that not only would include some more of the torture techniques they had used but not approved, but also include a “shock the conscience” analysis. That’s what the IG used to assess whether any crimes had been committed, which is important, because he found that torture as executed did humiliate detainees (and therefore violated the Constitution), but could point to (invalid) legal analysis pre-approving this. (Remember, Dick Cheney got an early review of all this.)

The problem was, DOJ’s OLC refused to accept that document. In June 2003, Patrick Philbin refused. And in May 2004, Jack Goldsmith did again.

So it was not just that Goldsmith withdrew the Bybee Memos (though said CIA could use all the torture techniques except waterboarding while he worked on a replacement). It’s that DOJ refused to accept CIA’s own legal analysis as DOJ’s official opinion. CIA was more anxious about getting some document judging the torture didn’t violate the Constitution. That’s what (as I’ll show) CIA was demanding when they raised the case of Janat Gul to get the Principals to reauthorize the use of torture in July 2004.

Just on the case of Janat Gul — who was detained based off a fabricated claim of election year plotting — CIA got OLC’s Daniel Levin to authorize all the old techniques (including waterboarding) as well as the 4 that CIA had used but not approved. Significantly, that included water dousing, the “technique” that had contributed to Gul Rahman’s death.

But that left two other concerns: the constitutional problem, and the use of techniques in combination, which (among other things) had led to severe hallucinations in 2004. That’s what the 2005 memos were meant to do: use the torture Hassan Ghul and Janat Gul had survived in 2004 to provide a rubber stamp on both the combination issue and the Constitutional one, and provide it roughly in time to be able to use to torture Abu Faraj al-Libi (though the third 2005 memo actually got signed after al-Libi’s torture began).

Neither Hassan Ghul (who was very cooperative before torture) nor Janat Gul should have been tortured. The latter probably was largely just to have one tortured body, any body, on which to hang new OLC memos.

9 replies
  1. seedeevee says:

    “The problem was, DOJ’s OLC refused to accept that document. In June 2013, Patrick Philbin refused. And in May 2004, Jack Goldsmith did again.”

    Should that be June “2003”?

  2. wallace says:

    Meanwhile, the real truth of the CIA via film resides on a server at Netflix. In my parallel universe, this film prosecutes the concept of Empire’s use of “intelligence” to the full extent of human capacity to understand why we are where we are at this moment. I urge you to watch it. You will never be the same. I guarantee it. Cue the CIA at the beginning of the Vietnam war. There are answers here I’ve searched for, for decades, as well as unanswered questions that still pose questions pertaining to today. However, the bottom line is answered. The CIA SHOULD have been dissolved 30 years ago..and almost was.

    Meanwhile…try not to vomit.

    • Rich says:

      Please watch what Wallace recommends form Netflix.
      The story is well-known and well-established.
      It’s import is not only scene in depiction as the perpetrators as pretentious gravelly voiced actors, Schlesinger case in point, the press as in Schorr and Hersh as publicists leveraging access for personal gain, but also in the unanswered question as to why Colby’s son Carl made this movie. The movie certainly drives home the point Roman Catholics align equally in viciousness with their Mormon-LDS and 7th Day Adventist brethren. Concealment and deception indeed. My god, expiating his sins…….

  3. wallace says:

    emptywheel, I applaud your perseverance. Unfortunately, the evil scum of the CIA are decades ahead of you. The proof is in that film.

  4. wallace says:

    quote”Neither Hassan Ghul (who was very cooperative before torture) nor Janat Gul should have been tortured.”unquote

    HUH? As opposed to what? Torture was ok on everyone else? That’s what it sounds like you are saying. In my universe, torture is an obscenity, and it’s use on ANY ONE is an abomination. Could you please clarify your intent. I’d hate to think you approve under ANY circumstances.

  5. ess emm says:

    First Yoo should be fired by UC Berkeley Law school, disbarred and prosecuted. That fax, which basically say even if you intended to cause mental pain and suffering, but didnt think that it would cause prolonged harm, then everything is jake. Outrageous

    Levin was head of OLC for only eight months. Apparently approving (retroactively) CIA’s torture in his first month on the job. Could it be the case the CIA saw a newbie and pounced on him?

    Where did Levin end up—another prestigious law school?

  6. Woofie the CIA rape dog says:

    “CIA was more anxious about getting some document judging the torture didn’t violate the Constitution.” Yes, this is CIA’s last line of defense, “but but but the Constitution says!” It hinges on a US reservation to the Convention Against Torture.

    They tried this trick with the Genocide Convention too, in case they ever need to genocide some people, and now some staunch NATO allies don’t accept US accession to the treaty.

    The idea is, you establish torture in practice, then make some of your blackmailed judges slip it into legal precedent as constitutional. That works except when your judges remember that Nuremberg trials got some judges too. Then you get Hamdan.

    CIA’s impunity reservation is manifest bullshit in law. Under the Vienna Convention on the Law of Treaties, Article 19, the state may not formulate a reservation incompatible with the object and purpose of the treaty. Under Article 27, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. The customary international law of the Vienna Declaration and Programme of Action encourages all States to avoid, as far as possible, resort to reservation. The Human Rights Committee is arbiter of dubious torture reservations under its General Comment 24, and the International Law Committee is on it, this trick of reservations to treaties.

    This won’t fly outside the Vaterland. Shitloads of spooks who don’t dare use their passports will get reassigned to read Pravda at their desks, and CIA will be ever more useless and drunk.

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