March 28, 2024 / by 

 

KSM Refuses Lawyer Because of All the Legal Same Sex Marriage in the US

Try to get your head around this.

David Nevin, fresh off his victory in getting Geoffrey Fieger acquitted of all charges, has volunteered to donate his considerable legal skills to represent Khalid Sheikh Mohammed in his death sentence Show Trial. But KSM doesn’t want the help, he says, because the Constitution permits same sex marriage.

”I will not accept any attorney. I will represent myself,” Mohammed said. “I will not accept anybody, even if he is Muslim, if he swears to the American Constitution.”

Mohammed said he recognized Islamic shariya law and rejected the U.S. Constitution, in part because it allows for "same sexual marriage and many things are very bad.”

It’s true, I suppose, that the Constitution permits same sex marriage–as in, does not prohibit states from performing them. But it in no way affirmatively protects it. Do you think we ought to tell KSM that same sex marriage is only legal on the hippie coasts–and may be overturned in California come November?

On the one hand, if that were to make him feel better about the Constitution (at least the Constitution of the huge number of states that prohibit civil unions and gay marriage), then he might accept Nevin’s legal representation. That might prevent KSM from being killed for plotting the 9/11 plan–or at least give the trial more legitimacy. And, frankly, since KSM seems intent on turning himself into a martyr, there’s something to be said for doing everything we can to prove that this nation is not really all that friendly to gay marriage.

Defiant, confessed 9/11 mastermind Khalid Sheik Mohammed went before a military judge on Thursday, refused his U.S. defense counsel and said he would welcome a death sentence.

Mohammed, 43, became the first of a succession of five alleged co-conspirators in the 2001 terror attacks to reject the legitimacy of the first U.S. war crimes tribunal since World War II.

”In Allah I put my trust,” the Pakistani intoned in Arabic from a Koran, then personally translated the verse into English for the benefit of the audience.

Judge Ralph Kohlmann, a Marine colonel, asked Mohammed whether he understood that the crimes for which he was accused are punishable by a death sentence.

”This is what I wish — to be martyred,” Mohammed replied in the broken English he learned as an engineering student in his 20s in North Carolina.

On the other hand, it is true that the Constitution does not prohibit gay marriage.

But what if we said to all the homophobes out there that the quickest way to ensure they get to kill KSM is to permit gay men and women to marry nationally? What would they choose if they had to choose between sharia-like legal prohibitions on love–but they’d have to settle for life imprisonment. Or, they could let a lot of people who love each other marry, and in exchange they could have their dead terrorist?

Undoubtedly, they’re not going to have to choose–they’ll get their dead terrorist without having to reflect on the back-handed approval that said terrorist gave to this country’s widespread hatred of gay men and women.

But it all makes you realize, yet again, how this Administration’s eagerness for Show Trials will backfire in so many ways. No one believes that the trial of KSM (who mentioned being torture during his appearance today) has any great legitimacy. But it’s tailor made for KSM to very publicly recruit the next generation of terrorists.


The DHS Report on Maher Arar

Marty Lederman links to the DHS OIG report on Maher Arar’s transfer to and subsequent torture in Syria. It’s really really ugly reading, even though they’ve obviously redacted a lot of the paragraphs that ought to reveal the decision making process by which we decided sending Arar home to Canada or even to Switzerland so instead sent him to be tortured (many of the redacted paragraphs are marked with "U’s,"
signifying they’re unclassified).

Anyway, some more light reading to bring with me on my trip to Minneaplis this weekend for the Media Reform Conference.

In the meantime, I’m struck by this bit from Marty:

Interestingly, in his own testimony today, the Homeland Security IG states that "we have reopened our review into the Mr. Arar matter because, less than a month ago, we received additional information that contradicts one of the conclusions in our report. As such, we are in the process of conducting additional interviews to determine the validity of this information to the extent we can."

It’s not clear what the IG is treating as conclusions. But one of the big issues in the report–predictably–was how the hell it was that DOJ reviewed Syria’s human rights record and didn’t notice (right, yeah) that Arar was likely to be tortured. So I’m curious if the IG learned some new details about that decision-making process.


Whitehouse: Bush’s Lies “Rot the Very Fiber of Democracy”

Updated with YouTube from Selise. 

If you’re reading the SSCI Phase II reports, go to this thread to discuss what you’re finding.

But if you want to know what Senator Whitehouse thinks about it, you can see his speech here.

Or you can read it below:

Mr. President, five years ago, President Bush and this administration misled this country into a war that should never have been waged, a war that has cost our nation the lives of more than four thousand courageous men and women, squandered many hundreds of billions of our tax dollars, and diminished the world’s faith in our country.

This morning, the Senate Intelligence Committee, led by our distinguished chairman, Senator Jay Rockefeller of West Virginia, released a report confirming what many have long feared: that the Bush Administration ignored or swept aside substantial, reliable intelligence that portrayed something other than what the President and his political allies wanted America to see.

Mr. President, the decision to take a nation to war, as Chairman Rockefeller indicated, is among the gravest and most momentous that a leader can make. In our democracy, we expect and deserve to be sure that when our troops are sent in harm’s way, when their families are made to watch and wait through sleepless nights, when our security and national welfare is put on the line, that that decision has been taken for the right reasons. This is a sacred compact, an article of faith, between our people and their government.

This Administration broke that compact, betrayed that faith.

For years, the evidence has mounted that this Administration’s reasons for war were a sham. And just this week, the President’s own former spokesman indicated that the White House ran a "political propaganda campaign" building the case for war.

This morning’s report is a chilling reminder of the Bush Administration’s willingness to overlook or set aside intelligence that did not conform to its pre-ordained view of the world. Over and over again, the Committee documented instances in which public statements by the President, the Vice President, and members of the Administration’s national security team were at odds with available intelligence information.

By leading the American people to believe that the situation in Iraq was significantly more drastic than it actually was, the Bush Administration took this country into an unnecessary war – a war it still refuses to end.

In a speech in Cincinnati, a little over a year after al Qaeda attacked America on September 11th, President Bush said: "We know that Iraq and al Qaeda have had high-level contacts that go back a decade. … We’ve learned that Iraq has trained al Qaeda members in bomb-making and poisons and deadly gases."

In his 2003 State of the Union Address, just a few short weeks before giving the order that began this war, the President said: "Evidence from intelligence sources, secret communications, and statements by people now in custody reveal that Saddam Hussein aids and protects terrorists, including members of al Qaeda."

Mr. President, it was not true. The President of the United States told these things to our people and to the world, and they were false. According to the report released this morning by our Committee,

"Statements and implications by the President and Secretary of State suggesting that Iraq and al-Qa’ida had a partnership, or that Iraq had provided al-Qa’ida with weapons training, were not substantiated by the intelligence."

The Committee found that multiple CIA reports and a National Intelligence Estimate released in November 2002 – even as the Administration was in the drumbeat to war – "dismissed the claim that Iraq and al-Qa’ida were cooperating partners."

It was not true – and yet this President used this claim to convince the American public that there was a link between the Iraqi government and the terrorists that perpetrated the crimes of September 11, 2001.

Again in the October 2002 speech in Cincinnati, the President said: "We know that the regime has produced thousands of tons of chemical agents, including mustard gas, sarin nerve gas, VX nerve gas. Saddam Hussein also has experience in using chemical weapons. … Every chemical and biological weapon that Iraq has or makes is a direct violation of the truce that ended the Persian Gulf War in 1991. Yet, Saddam Hussein has chosen to build and keep these weapons despite international sanctions, U.N. demands, and isolation from the civilized world."

Mr. President, the Committee’s report concludes, and I quote:

"Statements by the President and Vice President prior to the October 2002 National Intelligence Estimate regarding Iraq’s chemical weapons production capability and activities did not reflect the intelligence community’s uncertainties as to whether such production was ongoing."

The intelligence community knew that Saddam Hussein wanted to be able to produce chemical weapons. It could not, however, confirm President Bush’s claim of certainty that Hussein’s regime was actually producing chemical weapons.

Yet the President made that argument, stirring up unfounded fears among the American people.

This Administration not only asserted that Saddam Hussein possessed chemical weapons, and intended to use them. The President also said this in his speech on October 2002: "We could wait and hope that Saddam does not give weapons to terrorists, or develop a nuclear weapon to blackmail the world. But I’m convinced," he said, "that is a hope against all evidence." A hope against all evidence.

He said: "we cannot wait for the final proof – the smoking gun – that could come in the form of a mushroom cloud."

Mr. President, again, it was not true. The Committee’s report states:

"Statements by the President and the Vice President indicating that Saddam Hussein was prepared to give weapons of mass destruction to terrorist groups for attacks against the United States were contradicted by available intelligence information."

At the time of the President’s speech, the intelligence community believed that Saddam Hussein did not possess nuclear weapons.

The President preyed on Americans’ fears of a nuclear attack, perhaps the most terrible fears we could have, to bolster his case for an unwarranted war.

And finally, the President led the American people to believe that if it came to war in Iraq, America’s military would easily help liberate a grateful nation. In Cincinnati in 2002, he said this: "If military action is necessary, the United States and our allies will help the Iraqi people rebuild their economy, and create the institutions of liberty in a unified Iraq at peace with its neighbors."

Mr. President, this was the hope against all evidence. Analysis by the Defense Intelligence Agency assessed that, and I quote, "the Iraqi populace will adopt an ambivalent attitude toward liberation." There’s an understatement. The CIA wrote in August 2002 that "traditional Iraqi political culture has been inhospitable to democracy." According to the Committee’s report, "Statements by President Bush and Vice President Cheney regarding the postwar situation in Iraq, in terms of the political, security, and economic [situations], did not reflect the concerns and uncertainties expressed in the intelligence products."

The view of the President and Vice President that American troops would be "greeted as liberators" did not take into account the complex social, political, and sectarian dynamics at work, about which the intelligence community was well aware. Yet this Administration still led the American people to believe that our troops would be welcomed, that the war would be short, that the burden in lives and dollars would be light, and that victory would be absolute. This delusion, has cost our servicemen and women – and our nation – every day since.

Once again, it was not true, Mr. President. It just was not true. And if this Administration had made the least effort to give an honest review of the classified intelligence, it would have been known to be untrue.

All too often in these seven long years, we have seen this Administration cast aside facts and principles that did not conform with its political aims. We have seen it attempt to take the great institutions of this country, our intelligence community our Environmental Protection Agency, our Department of Justice, and twist them – twist them – to its own ends, without due regard to the welfare of the American people.

Mr. President, I believe the irresponsibility and mismanagement of this Administration will go down in our history as among the darkest moments our government has witnessed. It rots the very fiber of democracy when our government is put to these uses. We do not yet know all the damage that has been done. Yet we hope, through the efforts of this Committee and this body, to continue the long and difficult repair work we have begun.

We can look ahead to next January, when we and our nation can begin again with a new Administration – an Administration that will not break the essential compact of honesty with the American people. [my emphasis]

Well said, Senator.


Phase II Report Working Thread

The SSCI has released (finally) the remaining reports on Iraq intelligence. I’m printing them out and beginning to read. If you want to read, too, use this thread to talk about what you’ve found.

(Update: Go here for text files–thanks tw3k). For a background, here’s McClatchy.


Fitzgerald to Conyers: “Okay, Now I’m Ready to Talk”

Thanks to BayStateLibrul for pointing out this provocative comment from Patrick Fitzgerald after yesterday’s Rezko verdict:

The White House Rasputin, Karl "The Architect" Rove, also was mentioned in the trial, as was former House Speaker Dennis "Don’t Ask Me About My Land Deal" Hastert, alleged to have been part of an effort by the bipartisan Illinois Combine to get rid of Fitzgerald. To demonstrate their kinship, Cellini and Rezko flew out to Washington on a play date and visited a White House reception with President Bush, where Kjellander joined them.

Later in the Rezko trial, two witnesses said that Rezko told them not to worry about the criminal investigation, because the Republicans—Rove and Kjellander—would get rid of Fitzgerald. Hastert would install a friendly federal puppy who wouldn’t bother the Combine, according to the testimony. "The federal prosecutor will no longer be the same federal prosecutor," testified Elie Maloof, a Rezko associate who is now a cooperating witness.

And a state pension board lawyer who has already pleaded guilty told grand jurors that Cellini told him "Bob Kjellander’s job is to take care of the U.S. attorney."

The Illinois Republican Party holds its own convention this week in Decatur. The party establishment, which has long been cozy with the Daley Democrats at City Hall, has done little or nothing to rid the Illinois GOP of Kjellander and Cellini influence.

"If I owe a response [about the putsch to remove him from his job], I owe it to Congress, first," Fitzgerald said when asked about all this after the verdict. [my emphasis]

Well, now that you mention it, Fitz, I seem to recall that Congress did ask you questions about this issue–questions that you obliquely passed on because of an ongoing criminal trial.

But that’s not the version of the "what if you got fired" question that I find most interesting. Rather, there’s a question that asks specifically if Fitzgerald became aware of efforts to fire him during the course of the CIA Leak investigation. Fizgerald refuses to answer … because of the ongoing Rezko case.

[snip]

During the CIA leak investigation, were you aware of any conversations that you might be asked to resign? If so please describe all such conversations, including the substance of the conversations, when they occurred, and the names of those who participated.

I do not know if the referenced account of events is correct or not.

As to whether I was aware during the relevant time period of the investigation that I might be asked to resign, I will respectfully decline to discuss matters currently at issue in a trial ongoing in the Northern District of Illinois.

Fitzgerald is referring, of course, to the multiple times during the Rezko trial when a witness has testified that Rezko and Bob Kjellander talked about having Rove fire Fitzgerald to scuttle the investigation into Chicago corruption. But that’s not, of course, what HJC asked him–they asked him about the CIA Leak case, and they made a reference specifically to coverage of the USA Purge.

Let’s see. Fitz "respectfully decline[s] to discuss matters currently at issue in a trial ongoing." The trial is over. And on the day the trial ends, Fitz says, "I owe Congress" a response about Kjellander’s and Rove’s efforts to get him fired???

I’m reading that message loud and clear, Chairman Conyers. Are you?


The JAG Dismisses the Unitary Executive

Via POGO, the Pentagon has made two key documents relating to the military’s use of torture available on its website: a March 2003 JAG Memo slamming a draft of the Working Group’s Report on Detainee Interrogation, and the Working Group’s Report which was published the following month. As POGO notes, these documents were declassified some time ago (Marty Lederman had posted the JAG one here and WaPo posted the report here), but they provide important context to the discussions surrounding John Yoo’s March 2003 Torture Memo.

I’ll come back to the Working Group Report (which lays out the potential risks for when the public discovers the US is using torture and has a nifty list of the ways our interrogation techniques would piss off our allies), but for now I just wanted to show how dubious the Judge Advocate general, General Thomas Romig, found John Yoo’s (and the Administration’s) Unitary Executive theories to be:

The Office of Legal Counsel (OLC), Department of Justice (DOJ), provided DOD with its analysis of international and domestic law as it relates to the interrogation of detainees held by the United States Government. This analysis was incorporated into the subject draft Report and forms, almost exclusively, the legal framework for the Report’s Conclusions, Recommendations, and PowerPoint spreadsheet analysis of interrogation techniques in issue. I am concerned with several pivotal aspects of the OLC opinion.

While the OLC analysis speaks to a number of defenses that could be raised on behalf of those who engage in interrogation techniques later perceived to be illegal, the "bottom line" defense proffered by OLC is an exceptionally broad concept of "necessity." This defense is based on the premise that any existing federal statutory provision or international obligation is unconstitutional per se, where it otherwise prohibits conduct viewed by the President, acting in his capacity as Commander-in-Chief, as essential to his capacity to wage war. I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum. If such a defense is not available, soldiers ordered to use otherwise illegal techniques run a substantial risk of criminal prosecution or personal liability arising from a civil lawsuit.

The OLC opinion states further that customary international law cannot bind the U.S. Executive Branch as it is not part of the federal law. As such, any presidential decision made in the context of the ongoing war on terrorism constitutes a "controlling" Executive act; one that immediately and automatically displaces any contrary provision of customary international law. This view runs contrary to the historic position taken by the United States Government concerning such laws and, in our opinion, could adversely impact DOD interests worldwide. On the one hand, such a policy will open us to international criticism that the "U.S. is a law unto itself." On the other, implementation of questionable techniques will very likely establish a new baseline for acceptable practices in this area, putting our service personnel at far greater risk and vitiating many of the POW/detainee safeguards the U.S. has worked hard to establish over the past five decades. [bold my emphasis]

I guess this makes clear–as if we didn’t already know–why Cheney wanted to control the promotions process for JAGs. As Romig himself said of Cheney’s efforts,

Retired Major General Thomas Romig, the Army’s top JAG from 2001 to 2005, called the proposal an attempt "to control the military JAGs" by sending a message that if they want to be promoted, they should be "team players" who "bow to their political masters on legal advice."

It "would certainly have a chilling effect on the JAGs’ advice to commanders," Romig said. "The implication is clear: without [the administration’s] approval the officer will not be promoted."

As Marty and Scott Horton and Jane Mayer have reported extensively, this JAG memo (and the others at Marty’s link) show the degree to which DOD was warned against accepting John Yoo’s advice. Curious that the DOD is making this all more accessible now, just as we’re about to start the Gitmo Show Trials.

Update: opps, mistranscribed "broad."


DOD Contract Goes to Known Money-Launderer

Jeebus. First we confirm that the British defense company BAE was funneling bribe money into Soviet covert ops. And now we learn (h/t scribe) that DOD has a jet fuel contract with Gaith Pharaon.

Pharaon is best known for his central role in the BCCI scandal. As a seemingly wealthy Saudi, he served as a perfect front for BCCI, which wanted to purchase an American bank to make it easier to get money in and out of the US. So Pharaon schmoozed all the right people in Georgia (including a number of high level Democrats with ties to Jimmy Carter) and got BCCI its approval for the bank.

Well, now we’re back in business with him, to the tune of $80 million.

The US military has awarded an $80 million contract to a prominent Saudi financier who has been indicted by the US Justice Department. The contract to supply jet fuel to American bases in Afghanistan was awarded to the Attock Refinery Ltd, a Pakistani-based refinery owned by Gaith Pharaon. Pharaon is wanted in connection with his alleged role at the failed Bank of Credit and Commerce International (BCCI), and the CenTrust savings and loan scandal, which cost US tax payers $1.7 billion.

The Saudi businessman was also named in a 2002 French parliamentary report as having links to informal money transfer networks called hawala, known to be used by traders and terrorists, including Al Qaeda.

Interestingly, Pharaon was also an investor in President George W. Bush’s first business venture, Arbusto Energy.

[snip]

An official at Attock, who did not wish to be named, confirmed the refinery was supplying thousands of tons of jet fuel to the US base at Bagram Air Base every month.

Is it just me, or does anyone else doubt that the money for a contract in Afghanistan with a known money-launderer with ties to hawala is really going to jet fuel? I mean, c’mon, really. This guy’s in the business of laundering money for the rich and powerful, and apparently his clients now include the Pentagon.


Goldwater and Kennedy, or Lincoln and Douglas?

You’ve probably heard that McCain’s campaign challenged Obama to do a series of town hall debates starting next week. It’s an interesting idea, down to McCain’s suggestion they fly together to the first one (but I gotta warn McCain–I don’t think Michelle will let Obama fly on the SugarMomma Express, not even if McCain proposes it in the interest of civility).

What’s more interesting to me is the imagery both campaigns are appealing to with their competing proposals. McCain pitched the town halls as a repeat of town halls that Goldwater and Kennedy planned to do–no doubt appealing to Obama’s self-conscious appropriation of the Kennedy legacy, not to mention McCain’s fanciful notion that he inherited the Goldwater legacy, and not just his seat.

In 1963, Senator Barry Goldwater and President John F. Kennedy agreed to make presidential campaign history by flying together from town to town and debating each other face-to-face on the same stage. In Goldwater’s words, those debates "would have done the country a lot of good." Unfortunately, with President Kennedy’s untimely death, Americans lost the rare opportunity of witnessing candidates for the highest office in the land discuss civilly and extensively the great issues at stake in the election. What a welcome change it would be were presidential candidates in our time to treat each other and the people they seek to lead with respect and courtesy as they discussed the great issues of the day, without the empty sound bites and media-filtered exchanges that dominate our elections. It is in the spirit of President Kennedy’s and Senator Goldwater’s agreement, in the spirit of the politics of change, and to do our country good, that I invite you to join me in participating in town hall meetings across the country to discuss the most important issues facing Americans. I also suggest we fly together to the first town hall meeting as a symbolically important act embracing the politics of civility.

(Incidentally, no one, thus far, has created a media firestorm suggesting that McCain has wished ill on Obama by referring to JFK’s assassination.)

McCain’s pitch for a town hall format, of course, is an attempt to get Obama on his–McCain’s–preferred turf. Small venues, pollsters pick the audience, unscripted exchanges. It’s an attempt to avoid the disaster of the green ghoul speech from last night.

Obama might like unscripted exchanges, but he was not about to allow McCain to push such preferential terms for himself. So in response, they proposed the Lincoln-Douglas debates.

As Barack Obama has said before, the idea of joint town halls is appealing and one that would allow a great conversation to take place about the need to change the direction of this country. We would recommend a format that is less structured and lengthier than the McCain campaign suggests, one that more closely resembles the historic debates between Abraham Lincoln and Stephen Douglas. But, having just secured our party’s nomination, this is one of the many items we will be addressing in the coming days and look forward to discussing it with the McCain campaign,

Of course, Abraham Lincoln is the other president Obama self-consciously fashions himself after, going back to his campaign kick-off in Springfield. Also note–the Hillary campaign tried to goad Obama into additional debates in April by pitching a Lincoln-Douglas debate, a format that would have served her well.

But a Lincoln-Douglas debate, a public celebration of policy discussion, a chance to orate with large audiences, that would seem to favor Obama (particularly if McCain continues to forget the difference between Sunni and Shia).

This could get mighty interesting.


Bush’s DOJ: Okay, Maybe We Won’t Imprison Siegelman for 30 Years

Isn’t that nice? The Siegelman prosecutors have decided maybe it isn’t so important to jail Don Siegelman for 30 years after all.

Federal prosecutors are no longer seeking stiffer prison sentences for former Alabama Gov. Don Siegelman and former HealthSouth CEO Richard Scrushy. 

Prosecutors filed a motion this week with the 11th U.S. Circuit Court of Appeals asking that their appeals of the sentences be dropped. Their appeal had called for a longer prison term than Siegelman’s more than seven-year sentence and Scrushy’s almost seven-year sentence.

The latest filing does not say why prosecutors want to drop their appeal.

I can’t imagine why, when everyone in the country is close to concluding that the entire prosecution was a big political witch hunt, they don’t want to go argue for more prison time for Siegelman. Can you?

Perhaps this means we’ll see prosecutors making a motion in a few weeks saying, "golly, maybe we didn’t really want to prosecute Siegelman after all."


John Yoo v. Alice Fisher and Michael Chertoff

Man, if you had to choose whom to believe between John Yoo or Alice Fisher and Michael Chertoff who would it be? John Yoo is a hack–but he’s an unashamed hack, proud of his accomplishments. Alice Fisher? Michael Chertoff? They’re more of the dishonest hack type.

The reason I ask is that there’s a seeming contradiction between what Yoo claims in his March 2003 torture memo regarding DOD practices and Alice Fisher and Michael Chertoff’s statements to DOJ’s OIG regarding related events. At issue is whether the Criminal Division of DOJ–Fisher was the Deputy Assistant Attorney General in 2003, and just resigned from Criminal Division Chief; Chertoff was head of the Criminal Division when the Administration was developing its torture policies–told OLC how they would treat certain actions criminally. The Yoo Torture Memo claims that OLC had consulted with the Criminal Division about which statutes would not apply to the military during the conduct of war:

The Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war.

But the DOJ OIG report on torture records Alice Fisher stating that the Criminal Division did not give advice–at least not on the techniques themselves.

Fisher stated that at some point she became aware that the CIA requested advice regarding specific interrogation techniques and that OLC had conducted a legal analysis. She also said she was aware of two OLC memoranda on that topic, but they did not relate to the FBI. Fisher also told the OIG that Chertoff was very clear that the Criminal Division was not giving advice on which interrogation techniques were permissible and was not "signing off" in advance on any techniques. (page 70fn; 113/438)

And Chertoff claims that he was asked–but refused to give–sign off on particular techniques.

Chertoff said that the Criminal Division was asked to provide an "advance declination" in connection with the CIA’s use of some techniques, but that he had refused to provide it.  (page 100-101; 143-4/438)

In the sentence immediately following the description of Chertoff’s denial, it also describes Chertoff admitting that he reviewed the memo.

In testimony before the U.S. Senate on February 2, 2005, Chertoff stated that he was asked to review a draft of an OLC memorandum that eventually became the August 1, 2002, OLC memorandum regarding "Standards of Conduct for Interrogation," which is sometimes referred to as the "Yoo memorandum." Chertoff stated in his Senate testimony and his OIG interview that at least some of the CIA "techniques" were described to him at the time.

And then in a footnote, it reminds that the memo Chertoff reviewed did specifically address whether torture would or would not be charged.

This general opinion did not describe any specific interrogation techniques, but did include an examination of "possible defenses that would negate any claim that certain interrogation methods violate the statute" prohibiting torture. A separate DOJ opinion issued the same day stated that the specific techniques approved …

The reason this matters is because if Chertoff did sign off on what would and would not be charged, then the memos basically become attempts to make the illegal legal. Marty Lederman explains,

From all that appears, John was not acting entirely on his own with respect to the March 14th Opinion. Section II of the memo is where much of the most astounding legal analysis appears. In that section, John concludes that the federal statutes against torture, assault, maiming, and stalking (i.e., threats) simply do not apply to the military in the conduct of war, by virtue of four "canons of construction": (i) that criminal statutes should not be construed to apply to the military during war; (ii) that they should not be construed to apply to the sovereign more broadly; (iii) that they are superseded as to the military by the Uniform Code of Military Justice; and (iv) of course, that if Congress did mean for them to apply in this context, it would be a violation of the Commander in Chief’s prerogatives.

The memo’s application of these canons to these statues (especially the torture statute) is, in my opinion, fairly outrageous, for reasons I’ll discuss in further posts. And this section is the heart of the Opinion — the belts and suspenders in support of the basic conclusion that the military need not worry itself about all of these (and other) criminal laws in interrogation of al Qaeda suspects.

Here’s the remarkable thing: Page 11 of the Opinion states that "[t]he Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war."

In other words, John Yoo checked with the Criminal Division as to whether the military could torture and maim detainees in a war, and that Division, which ordinarily strongly resists narrowing constructions of criminal statutes, agreed that the torture and maiming (and other) statutes were inapplicable.

Now, as I said upthread, this is a seeming contradiction. What Fisher and Chertoff appear to be denying is that they bought off on any specific torture techniques. That’s different, of course, than buying off on the concept that the Criminal Division would not prosecute torture per se during wartime.

So actually, with their carefully parsed responses, Fisher and Chertoff are probably not lying. They’re just trying to distract from the fact that Chertoff bought off on the larger concept that DOJ would not prosecute torture in time of war–and then gave Yoo the leeway to decide for himself what kinds of torture he wanted to authorize. 

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