On Wednesday, TPMM reported that the team under investigation for botching the Stevens prosecution has itself investigated a DOJ lawyer.

As we’ve reported, six federal prosecutors from the Stevens case — members of DOJ’s Public Integrity unit, including its head, William Welch — are now being investigated for knowingly withholding evidence, a potential criminal act.

Prosecutions for this offense — known as a Brady violation — are exceedingly rare. But it turns out that in 2006, an Assistant US Attorney was tried on the charge — and acquitted amid allegations that his prosecution was over-zealous.

[snip]

The ironies here begin to mount:

First, Convertino was being tried for an overly aggressive approach to prosecution. But his trial raised questions as to whether the Public Integrity unit was itself overly aggressive in going after him. One former federal prosecutor told the Detroit News after Convertino was acquitted: "The claim was overzealousness by Convertino, but was the government itself overzealous in prosecuting Convertino?"

Then, of course, it’s surprising, to say the least, that having tried this high-profile case focused on a prosecutor withholding evidence, the Public Integrity unit would allow itself to be accused of the very same crime in prosecuting another case. Especially given that Welch, who took over the unit in 2006, was involved in both efforts.

[snip]

There’s also this. Convertino’s lawyers argued that he was overworked and given inadequate resources during the terrorism prosecution. That line echoes this paragraph from a recent New York Times story on the Stevens Six:

One specific issue is whether the department was at fault for failing to pick up on the struggles of a trial team of five principal lawyers that may have been overwhelmed, struggling in the face of tight deadlines and an aggressive defense team from Williams & Connolly, a law firm known for its combativeness, according to current and former Justice Department officials.

As it happens, Convertino was back in the news this week. You see, he’s suing DOJ for privacy violations going back before the PIN investigation case against him. He alleges that DOJ leaked both news of an Office of Public Responsibility investigation into him and the identity of a confidential informant to the Detroit Free Press as part of a campaign of retaliation against him for perceived cooperation with Senate inquiries into DOJ mismanagement of financial investigations. A judge has ordered the reporter in that story to answer questions about who leaked that information to him. And on Thursday, the Appeals Court refused the Free Press’ attempt to halt the reporter’s deposition. 

Frankly, this is a story where there are no good guys. By all accounts, in the days following 9/11, Convertino appears to have pitched a fraud case as a terrorism case and in so doing made grand claims about useless evidence while burying the proof that it was useless. By all appearances, DOJ did allow and encourage this to happen, both through managerial neglect and a desire to push high profile terrorism cases.  It does appear that DOJ panicked when Chuck Grassley started investigating whether DOJ adequately investigated financial fraud–and so responded with a paranoid attack on Convertino that exploited the abuses they had a allowed to happen. And the reporter is arguing that he should be able to protect his confidential source for a story in which he revealed Convertino’s confidential informant (in both cases, I suspect learning the identity of the confidential source really is important to expose government wrong-doing).

All of which tells us something we already knew: DOJ under Bush really became a swamp of mismanagement. 

Today, in between reading torture memos, I burned my front lawn. (Click on the pix to enlarge.)

The first year we moved into our house, mr. ew and I replaced most of the front lawn with native plants. We’ve got some oaks in our side yard which pretty much prevented lawn from actually growing. By replacing the grass with native species, we figured we could have flowers and interesting sedges that didn’t need much care that would thrive under the oaks.

Thing is, you’re supposed to burn native plants every five years or so. The idea is that the burn kills off non-native species and refreshes the natives that are left over. We were overdue. Plus, we had a bunch of ash saplings grow in last year (which is sort of odd, since almost all the ash trees in MI have died off after being infested with the Emerald Ash Borer), which were taking over.

So today we burned our lawn.  Or rather, we had some guys who know what they’re doing come and burn the lawn. There were three of them, dressed like firemen, with backpacks of either gasoline/diesel or water. They’d light the fire, let it burn for a while, then put it out before our house (or, more importantly, the neighbor’s house) went up in flames. The whole process took about a half hour.

Yes, some of the neighbors came out trying to figure out why the heck we were setting our lawn on fire. And, since we live on a fairly busy road, there were plenty of people rubbernecking, trying to figure out what was up. (School’s out today, so the kids weren’t in the elementary school down the street, and we did it during a fairly low traffic hour.)

We burned the actual non-native lawn too. Apparently, it’s buffalo grass, and will come back stronger after the burn, as well. 

So now we’re left with a scorched front lawn!!

The woodsier parks in our town do these burns all the time. It’s amazing to see the fresh new plants growing out of the burn, coming in healthier than before. In a few weeks, that’s what my lawn is going to look like.

Thanks to Peterr and bmaz, a selection of music to accompany this post:

Disco Inferno

Smoke on the Water

Burn

Burning Down the House

Great Balls of Fire

Thanks to bmaz for sitting in a crappy rental car in SF for the last month and a half waiting for Vaughn Walker to make a peep. As he reported, Walker has ordered the government and the al-Haramain team to figure out a way to move forward with the litigation.

Accordingly, the parties are hereby ordered to meet and confer regarding the entry of an appropriate protective order which shall be entered herein before the court rules on the merits.

Frankly, that order is largely a punt. The government and al-Haramain have been squabbling about access for months now, there’s no reason to expect them to be able to come to a resolution, even if Walker pointed them to an approach he seems to think will work. He could have just ordered them to follow that approach, but did not.

But here are the two aspects of the order that are not a punt. First, Walker makes it clear he has read all the documents submitted in this case.

The court has, in keeping with its orders dated January 5 (Doc #537/57), February 13 (Doc #562/71) and February 19 (Doc #566/75), reviewed the Sealed Document and the parties’ various submissions on the subject of appropriate measures to prevent disclosure of classified information while allowing “both parties [] access to the material upon which the court makes a decision.”

And he has said, clearly, that it’s time to get this litigation moving.

The court will then consider the submissions and enter a protective order under which this case may resume forward progress.

In other words, Walker has said, "I’ve read the secret evidence in this case and now I want you guys to figure out how to move foward with this case."

Which pretty much implies that, having read the evidence, Walker believes it will move forward. Unless I’m misreading these tea-leaves (which I doubt, because the tea-leaves have been reading the same way since well before January), Walker is prepared to rule that al-Haramain is an aggrieved party. Meaning, Walker is convinced the government wiretapped al-Haramain illegally.

Not a surprise, in the least, but it’s nice we’re finally getting around to this.

So why the punt, and why the delay?

First, a wildarsed guess. I think the delay may have related to the third of the related warrantless wiretap cases before Walker. You’ll recall the filing submitted two weeks ago, once again making expansive claims of privacy and claiming the government is immune from suit.  Well, given the way all these cases interlock, I suspect Walker may have wanted everything in his hands, so he was sure he could move forward on all three in a sensible fashion. So, he gets the last filing on April 3, works through how all three cases work together, and now we get today’s punt.

So why the punt? Why now?

Partly, I think Walker is giving the government one more chance to be reasonable in an attempt to avoid appeals further down the road (and note–he makes it clear those appeals will take place further down the road).

But he’s also called the government’s bluff. Last we heard in this case, after all, the government was squawking like Cheney, threatening to come take its documents away if Walker tried to give them to al-Haramain.  But what’s it going to do now, if Walker has his ruling on the merits all but written now? Take Walker’s rulings away? Take his notes? In other words, Walker has read the documents–documents that likely impact not just this suit, but also the other suits against the government. And the government can’t take his review of those documents away at this point. 

So we may not have a ruling until after May 8. And we–since we’re not cleared–may not get to see Walker’s ruling, in this case. But I’m guessing we’ll see reflections of it in the two other suits currently pending before Walker. 

graphic by politicalbase

The decision just came to me hot from a source involved in the case. Judge Walker has entered his order on al-Haramain. [pdf]

The court has, in keeping with its orders dated January 5 (Doc #537/57), February 13 (Doc #562/71) and February 19 (Doc #566/75), reviewed the Sealed Document and the parties’ various submissions on the subject of appropriate measures to prevent disclosure of classified information while allowing “both parties [] access to the material upon which the court makes a decision.” RT, Hearing held January 23, 2009 (Doc #532/67) at 34 and Doc #562/71 at 2,3.

The United States, in response to the court’s directive to “inform the court how it intends to comply with the January 5 order” (Doc #562/71 at 3) has offered up three similar-sounding alternatives all of which appear geared toward obtaining a stay of this court’s proceedings and review by the court of appeals, even though its simultaneous attempts to obtain review as of right and by means of an interlocutory appeal of the January 5 order failed in February (Doc #562/71 and Al-Haramain Islamic Foundation, Inc v Obama, No 09-15266 (9th Cir February 27, 2009)). As both this court and the court of appeals have determined that this matter is properly before the court, the United States should now comply with the court’s orders.

Accordingly, the parties are hereby ordered to meet and confer regarding the entry of an appropriate protective order which shall be entered herein before the court rules on the merits. The United States District Court for the District of Columbia has successfully employed protective orders in the In Re Guantánamo Bay Detainee Litigation, D DC No Misc 08-0442 TFH, even providing for the use of top secret/sensitive compartmented information (TS/SCI). See, for example, the documents at docket numbers 409 and 1481 in that matter. The United States has advanced no argument that would suggest a reason why the court’s use of a protective order in instant matter modeled on those in use in the Guantánamo Bay would not adequately protect the classified information at issue here.

The parties shall submit to the court a stipulated protective order on or before May 8, 2009. If the parties are unable to agree on all terms, they shall jointly submit a document containing all agreed terms together with a document setting forth the terms about which they are unable to reach agreement and the respective positions of the parties with regard to each such term.

The court will then consider the submissions and enter a protective order under which this case may resume forward progress.

IT IS SO ORDERED.

Bottom line folks, the case is going to proceed and Walker is not going to sanction the matter being taken to the Ninth Circuit on another interlocutory appeal. All outstanding news!

In May 2004, CIA’s Inspector General, John Helgerson, completed a report that found that the CIA’s interrogation program violated the Convention Against Torture. By understanding the role of that report in the May 2005 Bradbury memos, we see just how weak Bradbury’s memos are. 

As Jane Mayer described, the report strongly influenced Jack Goldsmith shortly before he withdrew the August 1, 2002 Bybee memo in June 2004.

The 2004 Inspector General’s report, known as a "special review," was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply "sickening." The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized. The source said, "You couldn’t read the documents without wondering, "Why didn’t someone say, ‘Stop!’"

Goldsmith was required to review the report in order to settle a sharp dispute that its findings had provoked between the Inspector General, Helgerson, who was not a lawyer, and the CIA’s General Counsel, Scott Muller, who was. After spending months investigating the Agency’s interrogation practices, the special review had concluded that the CIA’s techniques constituted cruel, inhuman, and degrading treatment, in violation of the international Convention Against Torture. But Muller insisted that every single action taken by the CIA toward its detainees had been declared legal by John Yoo. With Yoo gone, it fell to Goldsmith to figure out exactly what the OLC had given the CIA a green light to do and what, in fact, the CIA had done.

As Goldsmith absorbed the details, the report transformed the antiseptic list of authorized interrogation techniques, which he had previously seen, into a Technicolor horror show. Goldsmith declined to be interviewed about the classified report for legal reasons, but according to those who dealt with him, the report caused him to question the whole program. The CIA interrogations seemed very different when described by participants than they had when approved on a simple menu of options. Goldsmith had been comfortable with the military’s approach, but he wasn’t at all sure whether the CIA’s tactics were legal. Waterboarding, in particular, sounded quick and relatively harmless in theory. But according to someone familiar with the report, the way it had been actually used was "horrible."

After Goldsmith withdrew the Bybee memoranda, Dan Levin wrote a new more restrictive memo in December 2004. But by spring 2005, the CIA wanted to use torture with some more high value detainees (including Hassan Ghul). So they had Steven Bradbury (in what was basically an audition to head OLC) write new torture memos–not only to reauthorize waterboarding (though it was not used on Ghul, according to reports), but also to dismiss all the concerns about the CAT raised by CIA’s IG.

Though we are not allowed to read that in the memos, the response to the IG Report appears to have been at least implicitly acknowledged in both. The two May 10, 2005 memos were were faxed with a two page cover sheet, and the first memo refers to the IG Report as if it has already been cited, so it may have been mentioned in the cover sheet or in earlier correspondence on the memo. [Correction: Footnote 7 cites the IG Report directly.] And the May 30 memo includes at least one long redacted passage (on page 4) that may contextualize the entire memo in reference to the IG Report’s conclusion that the CIA’s interrogation program violated the CAT. (The passage in question appears to refer to descriptions of the interrogation program, which the IG Report did in detail; yet, as Mary notes, Bradbury does not use the actual descriptions from the IG report when he describes and declares legal the techniques. This allows him to ignore several inconvenient facts revealed in the IG Report.)

More importantly, the entire point of both memos is basically to respond to the IG Report’s conclusion that CIA’s interrogation program violated CAT. The May 10 memo, for example, explains that the US complies with the CAT with USC 2340-2340A, and then proceeds to argue that the techniques used do not violate USC 2340-2340A, therefore those techniques do not violate the CAT. The May 30 memo basically uses a technicality–that none of the torture is conducted on US soil and therefore none of it is subject to Article 16. It goes on, then, to redefine the requirements of CAT to prohibit anything that "shocks the conscience." By making a thoroughly unconvincing claim that none of the techniques shock the conscience, Bradbury then claims that even if they were seen to be subject to Article 16, they would still comply. In both cases, however, the purpose is the same: to insist that–contrary to what the IG Report concluded–the CIA interrogation program did comply with the CAT. 

Yet in arguing against the IG Report, Bradbury reveals much of what the IG Report finds so problematic. It reveals:

• CIA interrogators were not performing waterboarding as it had been approved in the August 2002 Bybee Memo; in particular, they were repeating the process more frequently (83 times for AZ and 183 for KSM) and using much more water than described in the Bybee Memo
• By CIA’s own admission, they used waterboarding with Abu Zubaydah at a time when he was already completely compliant with interrogators
• No "objective" doctors had been involved in the interrogation sessions (the CIA subsequently added them to its program)
• It appears that after the CIA integrated doctors into the program, they lowered, by three and a half days, the length of time a detainee could be kept awake

In other words, the Bradbury memos basically prove that waterboarding, as practiced by the CIA (as distinct from how they were describing it), was out of control in several ways (and therefore probably illegal even according to Yoo’s descriptions). They also suggest that the CIA recognized they were using sleep deprivation far more than was safe, even according to their own complicit doctors. Both of the most problematic aspect of the CIA program, the Bradbury memos suggest, had been deemed unsafe as practiced.

Yet even while presenting this proof, Bradbury concludes that the interrogation programs were legal. More troubling even than Bradbury’s crappy legal writing, then, is the way his own memos prove the program was unsafe even while declaring it legal. 

Here’s a summary of what appears in each of the two memos (I didn’t find any obvious references to the IG Report in the second May 10, 2005 memo).

References in the May 10 "Techniques" memo 

Two references to the participation of doctors and psychologists in interrogations (5)

"Medical and, as appropriate, psychological personnel shall be physically present at, or reasonably available to, each Detention Facility. Medical personnel shall check the physical condition of each detainee at intervals appropriate to the circumstances and shall keep appropriate records."

Medical and psychological personnel are on-scene throughout (and, as detailed below, physically present or otherwise observing during the application of many techniques, including all techniques involving physical contact with detainees) and "[d]aily physical and psychological evaluations are continued through the period of [enhanced interrogation technique] use. [brackets Bradbury’s]

A reference to the application of SERE techniques to torture (6)

A footnoted description of how waterboarding as used in torture differs from the way it is used in SERE training (13)

A footnote admitting that the IG report criticized the reference to SERE training as a basis for justifying waterboarding, given the differences between the way it was used (13)

A reference to an IG complaint that medical personnel were not involved in the interrogations (29)

We note that this involvement of medical personnel in designing safeguards for, and in monitoring implementation of, the procedures is a significant difference from earlier uses of the techniques catalogued in the Inspector General’s Report. See IG Report at 21 n26 ("OMS was neither consulted nor involved in the analysis of the risk and benefits of [enhanced interrogation techniques], nor provided with the OTS report cited in the OLC opinion [the Interrogation Memorandum]."). Since that time, based on comments from OMS, additional constraints have been imposed on the use of the techniques.

A footnote describing the IG report’s description of sleep deprivation (35)

The IG Report described the maximum allowable period of sleep deprivation at that time as 264 hours or 11 days. See IG Report at 15. You have informed us that you have since established a limit of 180 hours, that in fact no detainee has been subjected to more than 180 hours of sleep deprivation, and that sleep deprivation will rarely exceed 120 hours. To date, only three detainees have been subjected to sleep deprivation for more than 96 hours.

A long footnote describing the difference between how Yoo/Bybee described waterboarding (and how it was used in SERE) and how it was implemented in practice (41)

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 ("[T]he waterboard technique  … was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator …  applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is "for real–and is more poignant and convincing.") see also id. at 14 n14. The Inspector General further reported that "OMS contends that the expertise of the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe." Id at 21 n26. We have carefully considered the IG Report and discussed it with OMS personnel. As noted, OMS input has resulted in a number of changes in the application of the waterboard, including limits on frequency and cumulative use of the technique. Moreover, OMS personnel are carefully instructed in monitoring this technique and are personally present whenever it is used. See OMS Guidelines at 17-20. Indeed, although physician assistants can be present when other enhanced techniques are applied, "use of the waterboard requires the presence of the physician." Id. at 9n2.

Another long footnote discussing why SERE has discontinued the use of waterboarding in all except Navy SERE training. (42)

References in the May 30 memo

A reference to Abu Zubaydah’s seniority in Al Qaeda upon capture (6)

A discussion of the use of waterboarding with (at least) al-Nashiri. (8)

The CIA used the waterboard extensively in the interrogations of KSM and Zubaydah, but did so only after it became clear that standard interrogation techniques were not working. Interrogators used enhanced techniques in the interrogation of al-Nashiri with notable results as early as the first day. See IG Report at 35-36. Twelve days into the interrogation, the CIA subjected al-Nashiri to one session of the waterboard during which water was applied two times. See id. at 36. (Note this section immediately precedes the discussion of videotapes.)

Use of the IG report to support a claim that torture provides information; "describing increase in intelligence reports attributable to use of enhanced techniques" (9)

A paragraph describing how information from lower-level detainees is used to "probe the high value detainees further" (the citation is misused to argue that the program cannot be judged based on the individual pieces of information elicited; 9)

Two references to the application of SERE techniques to torture (12, 37)

A long footnote admitting that CIA used torture when they didn’t need to with Abu Zubaydah (31)

This is not to say that the interrogation program has worked perfectly. According to the IG Report, the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information. See IG report at 83-85. On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques. On that occasion, although the on-scene interrogation team judged Zubaydah to be compliant, elements with CIA Headquarters still believed he was withholding information. [Redaction of more than one full line] See id, at 84. At the direction of CIA Headquarters interrogators, therefore used the waterboard one more time on Zubaydah. [Redaction of ~3/4 of a line] See id, at 84-85.

This example, however, does not show CIA “conduct [that is] intended to injure in some way unjustifiable by any government interest,” or “deliberate indifference” to the possibility of such unjustifiable injure. Lewis, 523 U.S. at 849. As long as the CIA reasonably believed that Zubaydah continued to withhold sufficiently important information, use of the waterboard was supported by the Government’s interest in protecting the Nation from subsequent terrorist attacks. The existence of a reasonable, good faith belief is not negated because the factual predicates for that belief are subsequently determined to be false. Moreover, in the Zubaydah example, CIA Headquarters dispatched officials to observe the last waterboard session. These officials reported that enhanced techniques were no longer needed. See IG Report at 85. Thus the CIA did not simply rely on what appeared to be credible intelligence but rather ceased using enhanced techniques despite this intelligence.

A footnote describing a discussion about the CIA’s intermittent involvement in interrogation (32)

The number of times Abu Zubaydah (83) and Khalid Sheikh Mohammed (183) were water boarded (37)

Update: Fixed my dates. Update: Fixed the waterboard numbers for AZ.

Update, 6/22/09: Added some missing references to mentions of the IG report.

The May 10, 2005 "Techniques" memo makes it clear that the torturers who claim the Bybee memo legalized their water-boarding of Khalid Sheikh Mohammed and Abu Zubaydah are wrong.

That’s because the torturers didn’t do what the memo authorized. In a footnote on page 41, it says:

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 ("[T]he waterboard technique  … was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator …  applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is "for real–and is more poignant and convincing.") see also id. at 14 n14. The Inspector General further reported that "OMS contends that the expertise of the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe." Id at 21 n26. We have carefully considered the IG Report and discussed it with OMS personnel. As noted, OMS input has resulted in a number of changes in the application of the waterboard, including limits on frequency and cumulative use of the technique. Moreover, OMS personnel are carefully instructed in monitoring this technique and are personally present whenever it is used. See OMS Guidelines at 17-20. Indeed, although physician assistants can be present when other enhanced techniques are applied, "use of the waterboard requires the presence of the physician." Id. at 9n2. [my emphasis]

In other words, the interrogators were dumping water on AZ’s and KSM’s faces and repeating that treatment over and over and over.

Without any legal authorization to do so, no matter how bogus.

It’s time this torturer faced some  "poignant and convincing" consequences for his actions. 

And note, this is precisely why the torture tapes were destroyed. CIA has admitted that the guys waterboarding Abu Zubaydah broke the law. That tape was the irrefutable evidence of who did what. 

Update: Fixed my dates.

In his statement on the torture memos today, Obama suggested that some of the "assumptions" about what Americans had done were wrong, and that releasing the memos would correct these "assumptions."

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.[my emphasis]

This suggests (though weakly) that the OLC memos–and not other evidence–should be taken as authoritative on the events surrounding our interrogation program.

Though, on several counts, this is not true.

The most troubling example pertains to Abu Zubaydah’s mental state before he was tortured. John Yoo (writing under Jay Bybee’s name) goes to some lengths to establish Abu Zubaydah’s sanity. After five paragraphs that basically make Abu Zubaydah out to be a self-confident stud, here’s what Yoo says about AZ’s psychological health.

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods. Through reading his diaries and interviewing him, you have found no history of "mood disturbance or other psychiatric pathology[,]" "thought disorder[,] … enduring mood or mental health problems." He is in fact "remarkably resilient and confident that he can overcome adversity." When he encounters stress or low mood, this appears to last only for a short time. He deals with stress by assessing its source, evaluating the coping resources available to him, and then taking action. Your assessment notes that he is "generally self-sufiicient and relies on his understanding and application of religious and psychological principles, intelligence and discipline to avoid and overcome problems." Moreover, you have found that he has a "reliable and durable support system" in his faith, "the blessings of religious leaders, and camaraderie of like-minded mujahedin brothers." During detention, Zubaydah has managed his mood, remaining at most points "circumspect, calm, controlled., and deliberate." He has maintained tius demeanor during aggressive interrogations and reductions in sleep. You describe that in an initial confrontational incident, Zubaydah showed signs of sympathetic nervous system arousal, which you think was possibly fear. Although this incident led him to disclose intelligence information, he was able to quickly regain his composure, his air of confidence, and his "strong resolve" not to reveal any information.

Nowhere else, significantly, does Yoo feel the need to quote so selectively and in such detail about what CIA Acting Counsel John Rizzo had represented to him.

Meanwhile, this is what Dan Coleman–an FBI guy with deep knowledge of al Qaeda–had to say about AZ in Ron Suskind’s One Percent Doctrine:

Meanwhile, Dan Coleman and other knowledgeable members of the tribe of al Qaeda hunters at CIA were reading Zubaydah’s top secret diary and shaking their heads. 

"This guy is insane, certifiable, split personality," Coleman told a top official at FBI after a few days reviewing the Zubaydah haul. 

Two different people reading the same diary. One cherry-picks from it to claim AZ exhibited no evidence of "mood disturbance," whereas another reads the same diary and concludes the guy is nuts.

I might give Yoo and Rizzo equal weight with Coleman in terms of who more credibly measured AZ’s mental state. But the second time Yoo discusses AZ’s mental state, there’s a half paragraph redacted.

The mental health experts that you have consulted have indicated that the psychological impact of a course of conduct must be assessed with reference to the subject’s psychological history and current mental health status. The healthier the individual, the less likely that the use of anyone procedure or set of procedures as a course of conduct will result in prolonged mental harm. A comprehensive psychological profile of Zubaydah has been created. In creating this profile, your personnel drew on direct interviews, Zubaydah’s diaries, observation of Zubaydah since his capture, and information from other sources such as other intelligence and press reports. [half paragraph redacted]

If I had to guess, that half-paragraph shows Yoo’s response to the Coleman claims Yoo had to have known about–and those claims didn’t stand to reason so they were redacted.

There are a number of other discrepancies where existing resources appear far more credible than the information that OLC used (either knowingly or not) on which to found their memos.

For example, there’s the claim that detainees deprived of sleep are not–at the same time–being physically abused.

The shackling [to deprive of sleep] is used only as a passive means of keeping the detainee awake and, in both the tightness of the shackles and the positioning of the hands, is not intended to cause pain. A detainee, for example, will not be allowed to hang by his wrists.

[snip]

Because sleep deprivation does not involve physical pain and would not be expected to to cause extreme physical discomfort to the detainee, the extended duration of sleep deprivation … is not a sufficient factor alone to constitute severe physical suffering.

The ICRC, on the other hand, reported that 10 of 14 high value detainees complained of being hung by their wrists. 

Prolonged stress standing position, naked, held with the arms extended and chained above the head, as alleged by ten of the fourteen, for periods from two or three days continuously, and for up to two or three months intermittently, during which period toilet access was sometimes denied resulting in allegations from four detainees that they had to defecate and urinate over themselves. 

And here’s how the ICRC described the sleep patterns of those shackled with their hands over their heads. 

Although this position prevented most detainees from sleeping, three of the detainees stated that they did fall asleep once or morewhile shackled in this position. These include Mr Khaled Shaik Mohammedand Mr Bin Attash;the third did not wish his name to be transmitted to the authorities. When they did fall asleep held in this position, the whole weight of their bodies was effectively suspended from the shackled  wrists, transmitting the strain through the arms to the shoulders.

I hate to say it, but the 10 high value detainees, each reporting the same treatment independently, are a lot more credible than Steven Bradbury repeating John Rizzo’s empty assurances.

Which suggests that, rather than rebutting "erroneous and inflammatory assumptions," the real concern the release of these memos ought to raise is the misrepresentations CIA apparently made to DOJ. By no means do I mean to excuse John Yoo and Steven Bradbury for their "banality." But John Rizzo was lying. Blatantly. In his claims to OLC as he tried to get stuff approved. 

Contrary to Obama’s suggestion, these memos should not correct any assumptions we’ve made about the torture our government conducted in our name. Rather, they should make it crystal clear that John Rizzo lied repeatedly about what the CIA was doing.

By all means, let’s make sure that Yoo and Bradbury (and Judge Bybee) pay for their legal rationalizations. But let’s include John Rizzo in there for producing the lies that abetted this legal abomination. 

ACLU has them posted:

August 1, 2002 John Yoo memo

First May 10, 2005 Steven Bradbury memo

Second May 10, 2005 Steven Bradbury memo

May 30, 2005 Steven Bradbury memo

And while you’re over at ACLU, consider showing them some love for all their great work prying these out of the government. 

Consider this a working thread.

Update: Did I say they were worried about blows to the head? From the August 1, 2002 memo:

For walling, a flexible false wall will be constructed. The individual is placed with his heels touching the wall. The interrogator pulls the individual forward and then quickly and firmly pushes the individual into the wall. It is the individual’s shoulder blades that hit the wall. During this motion, the head and neck are supported with a rolled hood or towel that provides a c-collar effect to help prevent whiplash. To further reduce the probability of injury, the individual is allowed to rebound from the flexible wall. 

Oh, and did I mention that they were using Abu Zubaydah as a human guinea pig, to test out methods they wanted to get approved? I ask, you see, because Abu Zubaydah told the ICRC that they only put in the "flexible false wall" after they started this technique.

With my comments interspersed:

The Department of Justice will today release certain memos issued by the Office of Legal Counsel between 2002 and 2005 as part of an ongoing court case. These memos speak to techniques that were used in the interrogation of terrorism suspects during that period, and their release is required by the rule of law.

Michael Hayden was on claiming they could have won this in court–I think he’s really underestimating how fed up Hellerstein is with this bullshit. 

My judgment on the content of these memos is a matter of record. In one of my very first acts as President, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer. Enlisting our values in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past.

But that is not what compelled the release of these legal documents today. While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.

Note the admission that not all of the practices have been acknowledged. Perhaps, just for example, blows to the head?  Also, the recognition that these have been widely reported suggests the ICRC report may have made a difference in this fight.

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

No mention of those who wrote these memos. Does that mean we can prosecute Yoo and Bradbury?

Going forward, it is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security. This is an extraordinarily important responsibility of the presidency, and it is one that I will carry out assertively irrespective of any political concern. Consequently, the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

Not gonna work, Obama. If we’re a nation of laws, then we cannot let those who have broken the laws to go unpunished. That’s not retribution. That’s what "nation of laws" means. 

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.

In Lichtblau and Risen’s piece on the ongoing warrantless wiretap problems, they report that the problems were identified in preparation of a semiannual review of the warrantless wiretap program.

The overcollection problems appear to have been uncovered as part of a twice-annual certification that the Justice Department and the director of national intelligence are required to give to the Foreign Intelligence Surveillance Court on the protocols that the N.S.A. is using in wiretapping. That review, officials said, began in the waning days of the Bush administration and was continued by the Obama administration. It led intelligence officials to realize that the N.S.A. was improperly capturing information involving significant amounts of American traffic.

Best as I can tell, this is the semiannual assessment in question.

‘‘(1) SEMIANNUAL ASSESSMENT.—Not less frequently than once every 6 months, the Attorney General and Director of National Intelligence shall assess compliance with the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and the guidelines adopted in accordance with subsection (f) and shall submit each assessment to—

‘‘(A) the Foreign Intelligence Surveillance Court; and

‘‘(B) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

‘‘(i) the congressional intelligence committees; and

‘‘(ii) the Committees on the Judiciary of the House of Representatives and the Senate.

So, basically, every six months, the DNI and AG need to look at the program and see whether the NSA is complying with the targeting and minimization requirements of the law.

The targeting language basically says NSA cannot intentionally target US persons.

‘‘(b) LIMITATIONS.—An acquisition authorized under subsection (a)—

‘‘(1) may not intentionally target any person known at the time of acquisition to be located in the United States;

‘‘(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;

‘‘(3) may not intentionally target a United States person reasonably believed to be located outside the United States;

‘‘(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and

‘‘(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

And the minimization requirements require that incidentally collected US person data must not be circulated improperly and must be destroyed.

(h) “Minimization procedures”, with respect to electronic surveillance, means—

(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;

(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and

(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

In short, they were preparing to do a report on whether they were complying with requirements that:

• No US person data be collected intentionally
• The amount of US person data incidentally collected must be minimized
• Incidentally collected US person data cannot be disseminated (though there’s a giant loophole for "foreign intelligence information")
• Unless they have a court order, US person data must be destroyed within 72 hours

In preparing this report, NSA determined it was out of compliance.

Two things Russ Feingold has said suggest that the loopholes in the dissemination of "foreign intelligence information" and for retaining US person data may have been exploited. First, in his statement today, Feingold said,

In addition, the administration should declassify certain aspects of how these authorities have been used so that the American people can better understand their scope and impact.

And, during David Kris’ confirmation hearing on February 25 (at which point Holder would presumably have already delayed the report), Feingold and Kris had this exchange:

SEN. FEINGOLD: We had an opportunity — and you can respond in a minute — but we had an opportunity earlier today to discuss in a classified setting specific concerns I have about how the FISA amendment act has been implemented. Without discussing those specifics in an open hearing, do you agree that there are serious problems that need to be corrected?

MR. KRIS: Senator, I do, I appreciate very much the meeting we had this morning, you raised a number of concerns that I as an outsider had not appreciated and you certainly got my attention. I have been thinking about it since we met and if it’s even possible you increased my desire to, if I were to be confirmed, to get to the bottom of the FISA amendments act and I hope if I am confirmed that I can take advantage of your learning of others on the committee and the intelligence committee to see how best to make any necessary improvements.

In other words, at around the same time as Holder was scrambling to fix this problem, Feingold was surprising David Kris–who at the time had probably the best understanding of what the illegal program was and current program is of anyone not yet read into the program–with details on how it had been used. 

All of which suggests that NSA was already using all the loopholes at its disposal (I’ll explain later why I’m all but certain, for example, that they have been keeping US person data for more than 72 hours with the approval of FISC). But even still, they were out of compliance. 

That either means they were intentionally unintentionally collecting US person data.

Or they were disseminating incidentally collected US person data.

Given that data mining is part of this program, I’m guessing it means they’re still data mining US person data, whether or not that US person data has any ties to terrorism or foreign intelligence.