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Which 2003 Document Was Hayden Talking About?

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I’d like to return to this post, in which I tried to figure out which 2003 OLC opinion approved–according to Michael Hayden–waterboarding.

Michael Hayden said something that confused me today on Fox News. When asked whether he thought waterboarding is torture, he replied simply that DOJ had said it was not.

Question: Are you satisfied that waterboarding is not torture?

HAYDEN: I’m satisfied that the Justice Department, in a series of opinions — ‘02, ‘03, ‘05 — said that it was not. Now…

See, we know that DOJ addressed waterboarding specifically in 2002 and 2005 in the memos released last week. 

But 2003?

We may well have found our answer in the IG Report. As I’ve been chronicling, John Yoo helped the Counterterrorism Center develop a "Legal Principles" document in 2003 that included waterboarding among permissible techniques. Scott Muller would claim Yoo’s involvement in the process constituted DOJ agreement with the principles espoused in the document. But in 2004, Jack Goldsmith asserted that the Legal Principles document, "did not and do not represent an opinion or a statement of the views" OLC. 

So it appears likely that Michael Hayden claimed that OLC had written an opinion on waterboarding that OLC claims does not constitute an opinion. If so, then the squabble between OLC and CIA over that document remains active (or at least did, as of earlier this year, when Hayden still headed the CIA).

But there’s another part of the earlier post I’d like to return to: a 2003 "secret memo" from the White House "explicitly endorsing" CIA’s use of torture.

Here’s the WaPo’s description of this 2003 memo, from last year when we were all trying to elect Barack Obama President. 

The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of interrogation techniques such as waterboarding against al-Qaeda suspects — documents prompted by worries among intelligence officials about a possible backlash if details of the program became public.

Now that we know of the "Legal Principles" document, I don’t think this is what Hayden referred to, since there was also a 2004 document and Hayden didn’t mention a 2004 OLC endorsement of torture (which is all the more remarkable, given that Daniel Levin did authorize the use of waterboarding in an August 2004 letter).

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The “Legal Principles” Timeline

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I wanted to do a "Legal Principles" timeline to better understand why the document was developed and what more we might learn from it.

As a reminder, the "Legal Principles" document is a set of bullet points CIA’s Counterterrorism Center developed with the participation of John Yoo. Though the document was undated and unsigned, CIA tried to claim it counted as "DOJ agreement" an official OLC opinion authorizing key parts of their torture program.

It appears the "Legal Principles" document claimed to do three things:

  • Authorize the use of torture with other "al Qaeda" detainees, even those not described as "High Value"
  • Legally excuse crimes, potentially up to and including murder
  • Dismiss CAT’s Article 16 prohibition on cruel and inhuman treatment

As such, the document formed a critical legal fig leaf leading up to the release of the IG Report (at which point OLC clarified in writing that it was not a valid OLC opinion). I suspect the need to replace this explains some of the urgency surrounding the May 2005 OLC opinions.

John Yoo’s Original Approvals

The early approvals for torture focus largely on the torture statute to the detriment of other laws. Furthermore, the specific approval for torture–the Bybee Two memo–only covered Abu Zubaydah.

July 13, 2002: John Yoo writes Rizzo a letter outlining "what is necessary to establish the crime of torture."

August 1, 2002: Bybee memos establish organ failure standard and support necessity defense, state that interrogation would not be subject to ICC, and approve ten techniques for use with Abu Zubaydah.

Crimes Create the Need for New Approvals

It appears that the deaths in custody in November and December 2002 may have been the impetus for the "Legal Principles," in which case they can be understood as a way to dismiss crimes–including murder–committed on detainees.

November, December 2002: Deaths in CIA custody, (probably) abuse of al-Nashiri.

December 2002: Scott Muller meets with OLC (and Criminal Division) and briefed them on scope and breadth of program.  

April 28, 2003: Muller has draft of Legal Principles hand-carried to John Yoo. It states:

The United States is at war with al-Qa’ida. Accordingly, US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.

CIA Delivers "Legal Principles" to Philbin as Final Document after Yoo Leaves

In 2003, John Yoo left the OLC, which appears to have created legal exposure for CIA because they had the understanding that his authorizations were carte blanche authorizations. CIA tried to deal with this by presenting Yoo’s carte blanche to his replacement, Pat Philbin, as a fait accompli.

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Was John Yoo Free-Lancing When He Approved the “Legal Principles”?

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Earlier today, I showed that there is a CIA document on the "Legal Principles" on torture that included legal justifications that had not been in any of the August 1, 2002 OLC memos authorizing torture. I showed that the document changed over time, but that when CIA asked Jack Goldsmith to "re-affirm" the Legal Principles in March 2004, he stated that he did not consider the document to be a product of OLC.

I have further inquired into the circumstances surrounding the creation of the bullet points in the spring of 2003. These inquiries have reconfirmed what I have conveyed to you before, namely, that the bullet points did not and do not represent an opinion or a statement of the views of this Office.

It seems–reading Jack Goldsmith and John Ashcroft’s objections to the CIA IG Report–that John Yoo was free-lancing when he worked with CIA on them.

In the DOJ dissent to the IG Report, Goldsmith explained that OLC disagreed with CIA’s representation of OLC’s role in drafting the Legal Principles document.

The disagreement revolves around the status of a document containing a set of bullet points outlining legal principles and entitled "Legal Principles Applicable to CIA Detention and Interrogation of Captured al-Qa’ida Personnel." The bullet points were drafted by OLC in consultation with OLC attorneys in the Spring of 2003. There is no dispute that OLC attorneys reviewed and provided comments on several drafts of the bullet points. In OGC’s view, OGC secured formal OLC concurrence in the bullet points and thus believed that the bullet points reflected a formal statement of OLC’s views of the law. OLC’s view, however, is that the bullet points–which, unlike OLC opinions, are not signed or dated–were not and are not an opinion from OLC or formal statement of views.

Goldsmith’s memo makes it clear, twice, that the work on the bullet points was the work of one OLC lawyer–John Yoo–and not the work of the department. Read more →

The “Other Intelligence Activities”

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I was a bit disappointed by the number of stories about the IG Report on the domestic surveillance program last week that claimed the report revealed the program was larger or more extensive than previously admitted or known. After all, the report itself notes,

The specific details of the Other Intelligence Activities remain highly classified, although the Attorney General publicly acknowledged the existence of such activities in August 2007.

Moreover, the "Other Intelligence Activities" have in fact been reported. Just days after the program was initially exposed, for example, Lichtblau and Risen reported,  

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system’s main arteries, they said.

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.[my emphasis]

In other words, those two aspects of the program–massive collection of data directly from telecommunication circuits and subsequent data mining of that data–has been reported almost from the first reporting on this program. And EFF wrote a 63-page brief collecting the many acknowledgments, from both Administration officials and members of Congress briefed on the program, of the expansive collection and data mining aspects of the program.

The "Other Intelligence Activities" Were the Source of the March 10 Hospital Confrontation

I think it important to emphasize that we do know what these "Other Intelligence Activities" (OIA) are because the report confirms that these OIAs were the source of the March 10 hospital Confrontation.

We’ve had confirmation that the collection and data mining aspects of the program were the source of the confrontation for two years. 

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.

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Hassan Ghul and Goldsmith’s Exception to the Geneva Convention’s Protected Person Rule

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According to the May 30, 2005 CAT memo, the CIA wrote Jack Goldsmith with what appears to be a description of Hassan Ghul on March 12, 2004.

Intelligence indicated that prior to his capture, [redacted] "perform[ed] critical facilitation and finance activities for al-Qa’ida," including "transporting people, funds, and documents." Fax for Jack L. Goldsmith, III, Assistant Attorney General, Office of Legal Counsel, from [redacted], Assistant General Counsel, Central Intelligence Agency (March 12, 2004).

On March 18, 2004, Goldsmith finalized a memo finding that non-Iraqi members of al Qaeda need not be afforded protected status under the Geneva Convention.

We conclude that the following persons, if captured in occupied Iraq, are not “protected persons” within the meaning of GC article 4: U.S. nationals, nationals of a State not bound by the Convention, nationals of a co-belligerent State, and operatives of the al Qaeda terrorist organization who are not Iraqi nationals or permanent residents of Iraq.

The following day, Goldsmith drafted–but did not finalize–a memo finding that in some cases the US–as the occupying power–could transfer "protected persons" out of Iraq (but probably shouldn’t).

We conclude, accordingly, that article 49(1)’s prohibition on "forcible transfers," like its prohibition on "deportations," does not extend to the removal, pursuant to local immigration law, of "protected persons" who are illegal alients.

[snip]

…we conclude that it is permissible to relocate "protected persons" who have not been accused of an offense from Iraq to another country, for a brief but not indefinite period, for purposes of interrogation.14

[snip]

14. While we conclude that GC does not prohibit temporary relocations of "protected persons" from occupied territory for a brief but not indefinite period, neither technical usage nor the Convention provides clear or precise guidance regarding exactly how long a "protected person" may be held outside occupied territory without running afoul of Article 49. Furthermore, violations of Article 49 may constitute "[g]rave breaches" of the Convention, art. 147, and thus "war crimes" under federal criminal law.

Now, we cannot be sure of the connection–nor can we be completely certain that the reference in the CAT memo pertains to Ghul (though it accords with the known details about him), but it appears these memos were at least partly an exercise in figuring out a way remove Ghul from Iraq to what ended up being one of CIA’s black sites. 

The detail is important for two reasons. Read more →

About those Missing OLC Opinions

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(Note: I’m scheduled to be on Mark Levine’s Inside Scoop today at 5PM ET. You can listen in here.)

Okay okay already. Here’s your damn missing OLC opinion post.

As a number of you have pointed out, ProPublica did a very cool database of all the OLC opinions on executive power, torture, and warrantless wiretapping that we know of. The database collects in one place, in sortable form, the opinions that track Bush’s abuse of power. 

I had done a timeline mapping the warrantless wiretap opinions to known events associated with Bush’s illegal program (though it’s not sortable like the ProPublica one). And don’t forget that John Conyers gave us a very detailed description of that opinion eliminating the 4th Amendment.

The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

Mr. Yoo and Mr. Delahunty concluded that both Article II of the Constitution and the 9/11 use of force resolution would authorize these types of domestic military operations (even though Congress had expressly rejected language proposed by the Administration for the AUMF that would have authorized domestic military operations).292 The memorandum also contains extended discussion of a hypothetical example which posits that a domestic military commander has received information, not rising to the level of probable cause, suggesting that a terrorist has hidden inside an apartment building and may possess weapons of mass destruction. According to the memorandum, not only does the Constitution permit the commander to seize the building, detain everyone found inside, and then interrogate them – all without obtaining any sort of warrant – but information gathered by military commanders in this way could used for criminal prosecution purposes as long as the primary reason for the seizure was the military fight against terrorism and not law enforcement. Read more →

Iraq War Memos Released: Working Thread

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McClatchy’s Marisa Taylor has gotten a hold of three more Yoo memos–and one Jack Goldsmith memo–that reveal the Administration’s thinking on the Iraq War.

They are:

October 23, 2002: Bush has authority to declare war against Iraq because his Daddy did

November 8, 2002: UN 1441 doesn’t prevent Bush from going to war outside the terms of 1441

December 7, 2002: If Scooter Libby claims the Iraqis lied on their WMD declaration, Bush can declare war

March 18, 2004: If the US ships Iraqis outside of Iraq, then they can torture them [Jack Goldsmith’s opinion]

I’m most interested in the December 2002 memo, because it seems to have shaped the roll-out of propaganda directed against Iraq–up to and including John Bolton’s use of the Niger claim in a State Department release on Iraq’s declaration. Basically, they seem to have gotten the legal opinion, then tailored their propagana to the terms of the legal opinion.

But I guarantee you, Mary is going to have some things to say about the Goldsmith memo, which she has been keeping an eye out for for some time.

Consider this a working thread.

Update: Come to think of it, the October 23, 2002 opinion is pretty funky. As it points out, it came not long after Congress approved the Iraq War resolution.

You asked us to render an opinion based on the constitutional and other legal authorities that would exist in the absence of new authorization from either Congress or the United Nations ("U.N .") Security Council. We note that on October 16, 2002, the President signed into law the Authorization for Use of MiIitary Force Against Iraq Resolution of 2002, HJ. Res. 114, Pub. L No. 107-243,116 Stat. 1498 (2oo2),which authorizes the President to use force against Iraq to enforce relevant U.N. Security Council resolutions regarding Iraq and to defend the national security of the United States from the threat posed by Iraq. We have not considered here the legal effect of that resolution. As this memorandum makes clear, even prior to the adoption HJ. Res. 114 the President had sufficient constitutional and statutory authority to use force against Iraq. We also note that negotiations are ongoing in the U.N. Security Council on a
new resolution regarding Iraq, but we do not address any of the proposed terms here.

It’s as if, at each stage of the process, Bush got Yoo to say he could do what he wanted regardless of the machinations in Congress and the UN, so he could claim he didn’t need that authorization. (Shades of Daddy, here.) And, of course, they eventually probably relied on that authority when they went to war without a new resolution.

I wonder whether Colin Powell knew about these opinions?

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Jane Mayer, the CIA Inspector General’s Report, and the Torture Tapes

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Though Mayer doesn’t connect the eventual destruction of the torture tapes in November 2005 with the Doug Jehl story published on November 9, 2005, revealing the conclusion of the CIA Inspector General’s report on torture, she reinforces a point I’ve made in the past–the decision to destroy the torture tapes was closely tied to the release of the IG report and the analysis made in the report.

The book is even more detailed than published excerpts have been about starkly the IG report changed the views on torture among some Administration officials, particularly Jack Goldsmith.

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, ome 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 decline 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. Read more →

Mukasey’s Troubling Historical Argument

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Mukasey’s defense of John Yoo in his commencement address at Boston College Law School has drawn a lot of attention.

Today, many of the senior government lawyers who provided legal advice supporting the nation’s most important counterterrorism policies have been subjected to relentless public criticism. In some corners, one even hears suggestions—suggestions that are made in a manner that is almost breathtakingly casual—that some of these lawyers should be subject to civil or criminal liability for the advice they gave. The rhetoric of these discussions is hostile and unforgiving.

But few people have examined Mukasey’s rationale for defending Yoo.

Essentially, Mukasey is making an argument that everyone concluded after 9/11 that timid lawyering had contributed to 9/11, and so if we criticize Yoo (and Addington and Gonzales and–I would argue, John Rizzo, Acting Counsel for CIA when the torture tapes were destroyed) for their decisions made under pressure to make lawyering less timid, our nation will be less secure as a result.

To make this argument, Mukasey relies on Jack Goldsmith’s discussion of risk aversion in his book Terror Presidency. But Mukasey grossly misrepresents what Goldsmith describes as the primary root of risk aversion. Repeatedly, Goldsmith compares the difference between the legal means Roosevelt used in World War II with those the Bush Administration uses, and goes on to suggest that the rise of human rights in the intervening years had constrained presidential action. Goldsmith mentions, among other things, prohibitions on torture (most of them international) and assassination. Significantly, of the many legal developments he cites specifically as creating new limits on presidential action, only one–FISA–was a law passed in the US in response to intelligence operations gone legally awry (Goldsmith also mentions EO 12333, which is an order signed by Saint Ronnie, not a law passed by Congress or an international body, and he mentions "an aggressive post-Watergate Congress … crafting many of the laws that so infuriatingly tied the President’s hands in the post-9/11 world").

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“It’s Not that Yoo Engaged in Really Bad Lawyering, Really It’s Not”

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I’m fascinated by this op-ed by David Rivkind and Lee Casey, arguing that we’re all beating up on poor little John Yoo because we believe international law should trump US law.

In truth, the critics’ fundamental complaint is that the Bush administration’s lawyers measured international law against the U.S. Constitution and domestic statutes. They interpreted the Geneva Conventions, the U.N. Convention forbidding torture, and customary international law, in ways that were often at odds with the prevailing view of international law professors and various activist groups. In doing so, however, they did no more than assert the right of this nation – as is the right of any sovereign nation – to interpret its own international obligations.

[snip]

That is why these administration attorneys have become the particular subjects of attack.

The central thrust of the op-ed is, of course, one giant shiny object. The role of international law has absolutely nothing to do with calls for Yoo to be held liable for his egregious opinions authorizing torture and warrantless wiretap. As I have pointed out, Looseheadprop has pointed out, and apparently Jack Goldsmith and other lawyers have pointed out, the problem was rather that Yoo ignored the key precedent in US law when he formulated his opinions. From Lichtblau’s book:

When Goldsmith and other Justice Department lawyers dusted off the early legal opinions on the NSA program, they were shocked to find that Yoo had not even factored into his legal analysis a seminal Supreme Court precedent on presidential power: the Youngstown steel case.

If I, a non-lawyer, can poke giant holes in Yoo’s legal opinions with a 30 second PDF search, then those opinions should clearly not be relied upon as valid. The question, though, is why the opinions were so shoddy: deliberate intent or incompetence? Using Rivkin and Casey’s assertion that Yoo is one of "the country’s finest legal minds," I have to conclude that the opinions are so shitty because Yoo could only authorize the things he did by ignoring US law–and that his effort to sidestep US law was indeed, an ethically and perhaps legally problematic act. The fact that Jack Goldsmith agrees with me about the shoddiness of these opinions–someone who fully agrees with Yoo about the appropriate role of international law in the US–proves that our complaints have nothing to do with international law.

So Rivkind and Casey are clearly trying to misrepresent to the WSJ’s readers what’s at issue here. Read more →