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Days after Taguba Reported Sadistic Criminal Abuse at Abu Ghraib, DOD Asked to Use More Torture

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On March 13, 2004, according to the OPR Report, Jack Goldsmith and Patrick Philbin went to Jim Comey’s house on a Saturday to alert him of something. The military had contacted Goldsmith, wanting to use a more extreme form of torture against a detainee–something like isolation, waterboarding, water dousing, or death threats.* [Update: In this post I explain why I think DOD was requesting extended isolation.] But, as Goldsmith had told DOD General Counsel Jim Haynes the previous December, the March 2003 opinion Yoo wrote that authorized DOD’s use of such techniques was hopelessly flawed. Goldsmith wanted to explain the flaws of the memo to Comey to get his support for withdrawing the memo. Comey, who was then acting Attorney General (since John Ashcroft was in the ICU with pancreatitis), agreed with Goldsmith’s judgment and–the OPR Report explains–later got John Ashcroft to agree that “any problems with the analysis should be corrected.”

That meeting at Comey’s house took place just four days after Goldsmith and Comey refused to reauthorize the President’s illegal wiretapping program, just three days after Alberto Gonzales and Andy Card raced to the ICU to attempt to convince John Ashcroft to override Comey and reauthorize the program, just two days after Bush reauthorized the program without DOJ concurrence, and just one day after Comey, Goldsmith, and Philbin threatened to quit if Bush didn’t make certain changes to the wiretap program.

The meeting also took place just four days after General Antonio Taguba issued a report finding that “numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees” at Abu Ghraib. Significantly, two of the allegations made against Americans by detainees that Taguba found to be credible–threatening detainees with a loaded pistol and pouring cold water on them–were among the four restricted torture methods that Haynes asked Goldsmith for authorization to use. While it’s not clear how much Goldsmith knew of DOD’s simmering torture problems (in Terror Presidency he said he didn’t learn of Abu Ghraib until it broke in April 2004, though aspects of his book clearly gloss then-classified events), Jim Haynes must have known about them.

The OPR Report doesn’t tell us how this conflict worked out–whether, in response to Goldsmith’s objections, DOD backed off its plans to torture a detainee or whether the White House overruled Goldsmith (or whether, as happened with a number of detainees, they used the technique before they asked to use it).

But we do know this occurred at a point when the White House was rejecting DOJ criticism of its counterterrorism programs. On March 11, in the context of the illegal wiretap program, Alberto Gonzales told Goldsmith that the President “had made an interpretation of law concerning his authorities and that DOJ should not act in contradiction of the President’s determinations.” And on March 16, again in the context of the illegal wiretap program, Gonzales had said,

While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve the goals of the activities authorized by the Presidential authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential authorization the interpretation of the law.

In other words, at precisely this moment, the White House was telling DOJ–and Goldsmith and Comey specifically–that what they thought about the law was interesting, but in no way binding on the President. Indeed, Gonzales was telling these two men they had best not act counter to the will of the White House.

I’ll explain more how I think this resolved in later posts. But for now, realize that one response DOD made to the Abu Ghraib scandal was to ask for more torture.

*There is some ambiguity in the unclassified OPR Report about what range of techniques DOD was trying to use. In a later post I’ll show why I think it was one of the latter three techniques listed here: waterboarding, water dousing, or death threats. [Note, I now think the request was for extended use of isolation, as I explain in this post.]

“We all benefited” from Margolis’ tenure

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A bunch of former DOJ bigwigs just wrote a seemingly pointless letter to Pat Leahy to assure him that David Margolis does not have a partisan–and they mean Left-Right partisan–bias. (h/t Main Justice)

I say “pointless,” to begin with, because after last Friday’s flaccid hearing on the OPR report, is anyone actually imagining that Pat Leahy is going to make a stink because the OPR Report got spiked?

And besides, no one thinks Margolis is a flaming political partisan. He’s a DOJ partisan, always putting the Department first, even ahead of justice. Hearing from a bunch of former DOJ bigwigs claiming he has no bias isn’t going to allay those concerns.

What’s particularly pathetic about this document, though, is the number people with a vested interest making the following weak claims:

we all benefited during our tenures from the wise counsel and good judgment of David Margolis

[snip]

While we do not comment here on the merits of the decision regarding the discipline of John Y00 and Jay Bybee, we are certain that it was reached conscientiously and wholly without partisan purposes.

[snip]

As those who have benefited from David Margolis’s counsel, we know he remains a great asset to the Department and the country for the present and future.

Let’s start with Alberto Gonzales, who gave approval for the use of torture techniques long before OLC did, and who was therefore perhaps the person most in need of the Get Out of Jail Free card that John Yoo wrote him. He signed this document.

So did George Terwilliger, Alberto Gonzales’ defense attorney, representing him on a number of ethical and potentially criminal issues, and therefore, presumably, on torture, if it ever came to that.

There’s Michael Mukasey, about whom Mary wrote a 2,000 word post describing his many conflicts on this issue. And Mark Filip, who helped Mukasey try to spike this report from the start. And Craig Morford, who was Acting DAG when Mukasey reviewed the Steven Bradbury memos and found them reasonable, which was itself a key part of spiking this investigation.

And how about John Ashcroft, huh? He wants you to know that he’s sure that Margolis judged correctly when Margolis determined that Ashcroft’s subordinates did not willfully do wrong when they shredded the Constitution eight years ago under Ashcroft’s inattentive watch. The same Ashcroft who reportedly pushed for some kind of “advance pardon” for the torturers. I sure trust him to tell me whether Margolis judged rightly or wrongly.

Then there’s Paul McNulty who, as US Attorney for Eastern District of VA, declined to charge people who engaged in torture and murder pursuant to these memos. The same guy whose decision to decline prosecution was reconsidered, given all the damning evidence in the OPR Report. Do you honestly believe that McNulty doesn’t want to have his decisions–which shortly preceded his promotion to be Deputy Attorney General–scrutinized that closely?

There’s Jim Comey, who may be one of those refusing to comment on the merits of the decision here (well then, why comment?), but who, when he lost the battle on the torture memos, expressed sadness “for the Department and the AG.” But not, it should be said, for the rule of law.

Add in Larry Thompson, who is another of the lawyers who, at least according to the OPR Report, reviewed and approved of the Bybee Memos. He thinks Margolis did the right thing too.

And, finally, David Ogden, who got fired not long ago, perhaps because he was happy to put politics above the law.

Now I’ll leave it for comments to unpack why people like lobbyist hack Jamie Gorelick wants to boost Margolis. But for now, just know that when at least 10 of these 17 bigwigs say they benefited from Margolis’ “wise counsel and good judgment,” they may well be talking about personal–and significant–benefit.

The Emails the Bush Lawyers Were So Worried About

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As I noted yesterday (though I got the details slightly wrong), the OPR report revealed that a number of John Yoo and Patrick Philbin’s emails had been deleted (and that Goldsmith’s had been deleted but were subsequently recovered).

OLC initially provided us with a relatively small number of emails, files, and draft documents. After it became apparent, during the course of our review, that relevant documents were missing, we requested and were given direct access to the email and computer records of Yoo, Philbin, Bybee, and Goldsmith. However, we were told that most of Yoo’s email records had been deleted and were not recoverable. Philbin’s email records from July 2002 through August 5, 2002 – the time period in which the. Bybee. Memo was completed and the Classified Bybee Memo (discussed below) was created – had also been deleted and were reportedly not recoverable. Although we were initially advised that Goldsmith’s records had been deleted, we were later told that they had been recovered and we were given access to them.

That’s particularly interesting, because several times in the year-long lead up to the release of the report, we’ve seen reports that Bush Administration members were squirmy about the number of emails OPR had gotten. Michael Isikoff first reported concern from Bush lawyers that OPR got emails from the memo contributors last February.

OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.

I wondered whether reappearing emails was of particular concern to those trying to cover up Bush crimes here. Then there was the remarkably bad NYT story from June 6, 2009, that not only revealed the presence of the emails and included the damning Comey ones, but spun them just as Steven Bradbury would have liked them, as an attack on Comey rather than what they were, an indictment of the drafting process.

All of this anxiety about emails could just be an expression of Bradbury’s worries (retrospectively, it looks much more likely than it already did that he was the source of the emails and the spin to the NYT).

If so, though, that’s particularly interesting since we know that OPR originally got a very limited batch of emails from Steven Bradbury (this was in 2004, before he would write his own torture memos).

On August 31,2004, Bradbury gave OPR copies of unclassified documents relating to the Bybee Memo, including email and documents from the computer hard drives and files of the former OLC attorneys who worked on the project.

But reports of the anxiety about emails are all the more interesting given the emails that are included in the report. Perhaps the most damning example is the email in which Yoo refers to Abu Zubaydah as “Boo Boo” (which Spencer reported on Friday):

On July 30,2002, Yoo asked [Koester] by email, “[D]o we know if Boo boo is allergic to certain insects?” [Koester] responded,”No idea, but I’ll check with [redacted].

In addition, email evidence provided the basis for [Special thanks, again, to burnt for making searchable copies of these reports that made compiling this list much easier]:

  • The start date of the Bybee One drafting process, April 11, 2002
  • Timing or summaries of key meetings, including some with Alberto Gonzales
  • Yoo’s comments on drafts sent to Jennifer Koester, his side-kick in the writing process
  • Details of Bybee’s involvement in the drafting process
  • Proof that Yoo didn’t intend to write the Commander-in-Chief or possible defenses before his July 16, 2002 meeting with Gonzales (and probably David Addington and/or Tim Flanigan)
  • Evidence that Yoo consulted with a university law professor on common law defenses (the second draft, but not the first and final, shows that this was a university professor)
  • Indication that Yoo and Koester didn’t start the Bybee Two (Techniques) memo until July 25, 2002 or later
  • Details on the pressure the White House was putting on Yoo to get the memos done
  • Details of who received the opinions including–a fact that Yoo later denied–DOD
  • Complaints Koester received from DOD’s Working Group that the Yoo Memo was too extreme
  • Proof that both Michael Chertoff and John Yoo told CIA’s Inspector General they would wait to investigate alleged crimes until he was done with his investigation
  • Goldsmith’s opinions about the Bybee One Memo, including his judgment that it constituted a “blank check”
  • Comey’s emails documenting his concerns about the May 10, 2005 Combined Memo and his belief that Bradbury was responding to White House pressure because he wanted the AAG position

In other words, the emails provide a key piece of evidence that the White House was responsible for the way in which the Bybee One memo served as a blank check, as well as the pressure the White House put on the lawyers as they were drafting the memos.

The emails put the White House squarely in the drafting process.

But that’s all with most emails from John Yoo and Patrick Philbin still disappeared.

It sort of makes you all the more curious about what was in the Yoo and Philbin emails that got deleted, huh?

Addington’s Direct Involvement in the Torture Memos

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As I noted yesterday, I’ve been reading old HJC hearings–including the hearing at which Daniel Levin testified about the torture memos. Levin basically testified that he was asked to resign while he was drafting what became the 2005 Bradbury memos.

Mr. DAVIS. Mr. Levin, let me begin with you and Mr. Wilkerson, and put frankly everything I have heard today in some context. And I want to pull out two particular events. The first one is the circumstances of your not being at the Department. I know that you were very careful in your answers to Chairman Nadler earlier. But let me make sure I understand you.

You didn’t voluntarily leave the Department; is that correct?

Mr. LEVIN. I would have preferred to have stayed. I mean, when I was told I wasn’t going to stay, I voluntarily left.

Mr. DAVIS. That tends to be what happens; when people who are over you tell you to go, you go. That is what in the real world is called being fired.

But he also revealed something else about what happened when he was drafting the replacements for John Yoo’s crappy memos: he had no direct contact with David Addington during the process–or anyone else in OVP.

Mr. ELLISON. Whom did you talk to in the redrafting?

Mr. LEVIN. I talked to a lot of people. As I mentioned in my opening remarks, I think one of the problems with the earlier memo was, it was not the subject of sufficiently broad collaboration and discussion.

I talked, in addition to everybody in the Office of Legal Counsel virtually, people at the Criminal Division, various other people in the Department, people at the State Department.

Mr. ELLISON. Did you talk to anybody in the Vice President’s Office?

Mr. LEVIN. I don’t believe I did talk to anybody in the Vice President’s Office. I did submit drafts to the White House Counsel’s Office, and whom they circulated it to in the White House, I don’t know.

Mr. ELLISON. Okay. Do you know if—did Mr. Addington have any input into your redraft?

Mr. LEVIN. Not directly to me. Whether he did so indirectly, I am not sure. He may have provided comments to White House Counsel that were then communicated to me as their comments. I was not ever told anything that were his comments, and he never spoke to me about it directly.

Now, that’s remarkable. Read more →

Dan Levin’s September Memo

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I have said before that Dan Levin’s September 2004 Memo is one of the most interesting documents in Monday’s entire document dump. DOJ describes the document as "OLC’s view on the previous and current guidance it provided to CIA and DOD." As the date implies, it was written some time in September, though given the underscore in place of a date, it’s not clear whether this is more than a draft or even whether it was sent. It was addressed to John Ashcroft and Jim Comey by title.

The document is important and interesting for several reasons. I suspect it reflects ongoing difficulties on the part of DOJ to recover from John Yoo’s free-lancing and generally crappy lawyering. It provides an important marker of the discussions transpiring in fall 2004 on interrogation. And it provides critical insight to the Bradbury memos from spring 2005.

Since the document is heavily redacted, I’ll recreate the entire text of the document, along with my comments below. The original text is in blockquotes with my comments interspersed.

You have asked for an update on the status of interrogation advice.

A. GENERAL ADVICE

1. Previously Given

a. The primary prior general advice was an unclassified August 1, 2002 memorandum from Jay Bybee to Judge Gonzales interpreting the torture statute. It contains discussion of a variety of matters that are not necessary to resolving any issues to date.

This refers to the Bybee One memo–the memo invoking organ failure that Jack Goldsmith had withdrawn on June 22, 2004.

Levin states that this discusses "a variety of matters that are no necessary to resolving any issues to date," which suggests that thus far, the Bybee Two memo was adequate to authorize the interrogations that Levin knew of.

2. Current/Pending

a. [one description redacted]

This redacted pending memo must describe the Levin memo to Comey completed on December 30, 2004. I find it particularly interesting that this is redacted, since the memo itself has been unclassified and available for years. This suggests that Levin, Ashcroft, and Comey may have had a shared understanding about what that memo had to do to replace the Bybee One memo–an understanding that we’re not allowed to know about. As a reminder, the December 2004 Levin memo is the one with the footnote backing off of full renunciation of the Bybee One memo.

B. CIA ADVICE

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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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When and To What Degree Was John Ashcroft Read Into the Illegal Surveillance Program?

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We have long known that John Ashcroft was not properly read into the illegal domestic surveillance program. Senator Whitehouse suggested as much when Attorney General Gonzales testified in July 2007. And both Gonzales and Robert Mueller revealed that John Ashcroft–from his ICU bed–complained that his advisors had not been able to get read into the program and as a result he was ill-informed about the program.

But here’s an interesting detail about the hospital visit:

I also recall that, prior to the time I departed, General Ashcroft briefly mentioned a concern about security clearances for members of his staff regarding the NSA activities that were the subject of the presidential order.

[snip]

Well, here’s the relevant detail from Mueller’s notes:

The AG also told [Card and Gonzales] that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.

But the IG Report raises new and different questions about when–and to what degree–John Ashcroft was read into Cheney’s illegal domestic surveillance program. It includes the same details as Gonzales and Mueller have already revealed (though it looks like Gonzales was rather more cautious when speaking with the IG than before, and the IG appears not to have asked Mueller for his version of the story).

Former Attorney General Gonzales and former OLC Assistant Attorney General Bybee both told the DOJ OIG that they did not know how Yoo became responsible for analyzing the legality of the PSP.

[snip]

Gonzales told the DOJ OIG that the Yoo opinions represented the legal opinion of DOJ, and that it was Ashcroft’s decision as to how to satisfy his obligations as Attorney General. Gonzales told the DOJ OIG that Ashcroft complained to the White House that it was "inconvenient" not to have the Deputy Attorney General or Ashcroft’s Chief of Staff read into the PSP, but Gonzales also stated that he never got the sense from Ashcroft that this affected the quality of the legal advice about the program that DOJ provided to the White House. As noted, Ashcroft declined the DOJ OIG’s request for an interview. The DOJ OIG therefore was unable to determine from Ashcroft whether he sought additional DOJ read-ins to assist in the legal analysis of the program, how hard he may have pressed for these additional read-ins, or whether he believed he was receiving adequate legal advice about the program from Yoo alone during this early phase of the PSP.

But there’s one big–huge–tell about whether or not Ashcroft conducted sufficient analysis of this program to approve its legality: 

Attorney General John Ashcroft approved the first Presidential Authorization for the PSP as to "form and legality" on the same day he was read into the program.

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Hassan Ghul, Mystery Detainee 2, and the Three Bradbury Memos

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Update, March 12, 2015: We know from the Senate Torture Report that the Techniques memo was about Janat Gul, not Hassan Ghul. 

Since the Comey emails have come out, I’ve been trying to puzzle through why the Bush Administration issued three memos in May 2005–Techniques, Combined, and CAT–rather than just one or two. I guess I sort of understand doing a separate memo on whether the torture program complies with the Convention Against Torture, since that was largely written to placate Congress and ought to have (but did not) involve a more sensitive analysis. But since all the techniques are used in combination, why not join the analysis of Techniques and Combined?

This is to an extent a wildarsed guess. But I think they did three memos to hide the analysis and authorization of a particular detainee’s treatment. And I think that detainee was waterboarded.

Two Detainees

It has long been established that Hassan Ghul is discussed in these memos. Dafna Linzer reported on it the day the memos came out (and someone here MadDog also noted it about the same time–gold star to MadDog!!).

But the May 30 CAT memo actually mentions two detainees.

We understand that two individuals, [redacted across two pages] are representative of the high value detainees on whom enhanced techniques have been, or might be, used.

I’ll come back to this passage, but for the moment, understand that by the end of May 2005, Bradbury was ready to at least name two detainees in his memo.

The “Techniques” Memo Is about Ghul

I’m not 100% certain, but I believe that the May 10 Techniques memo is–at least ostensibly–exclusively about Ghul. The title of the memo uses the singular–Detainee. And the memo describes the detainee by name (the name is redacted, but it appears to be an appropriate length to spell “Hassan Gul”–CIA spelled “Ghul” without an “h”).

You asked for our advice concerning these interrogation techniques in connection with their use on a specific high value al Qaeda detainee named [redacted]. You informed us that the [redacted] and information about al Qaeda’s plans to launch an attack within the United Staes. According to [redacted] had extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and had arranged meetings between an associate and [redacted] to discuss such an attack. August 25 [redacted] Letter at 2-3. You advised us that medical and psychological assessments [redacted] were completed by a CIA physician and psychologist, and that based on this examination, the physician concluded “[redacted] medical stable and has not medical contraindications to interrogation, including the use of interrogation techniques” addressed in this memorandum.

So by all appearances, the Techniques memo uses the interrogation of Ghul to reapprove all the techniques used by the CIA, thereby replacing Bybee Two.

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The April 22, 2005 Fax on Torture

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I’m working on a series of posts about the 2005 Bradbury Memos and Hassan Ghul. But first, I want to make a couple of points about a document that plays a key role in them–particularly in the Combined Memo: an April 22, 2005 fax from the CIA’s Assistant General Counsel (the name is always redacted) to Steven Bradbury.

The Chronology

Before I get into the significance of the fax, here’s the chronology of it:

December 30, 2004: Background Paper on CIA’s Combined Use of Interrogation Techniques; Daniel Levin torture memo published

February 2005: Daniel Levin leaves DOJ

April 8, 2005: Draft "Techniques" and "Combined" OLC Memos (at that point, 57 pages in length) sent to CIA

"Several weeks" before April 27, 2005: Pat Philbin alerts Jim Comey to problems with "Combined" draft 

April 20, 2005: DOJ announces Jim Comey’s resignation

April 22, 2005: Meeting between Pat Philbin, Jim Comey, Steven Bradbury, Alberto Gonzales about May 10 torture memos

April 22, 2005: Fax to Steven Bradbury from Assistant General Counsel, CIA

April 26, 2005: Comey gets latest draft of Combined memo (no mention of Techniques draft), meets with Gonzales to express concerns, concurs with Techniques memo

April 27, 2005: White House tells Gonzales memos must be finalized by Friday, April 29

April 28, 2005: Gonzales’ Chief of Staff, Ted Ullyot, tells Comey the memo will have to be "sent over" tomorrow

May 10, 2005: Techniques and Combined memos (totaling 67 pages in length) finalized and sent to CIA

Note a few points. The May 10, 2005 memos were drafted by April 8, 2005. Apparently not long after CIA received that draft, Pat Philbin notified Jim Comey of problems with the "Combined" memo and (though there’s no reason to believe they’re related events) Comey resigned. 

And then, on Friday April 22, two things happened. Comey and Philbin tried to talk Gonzales and Bradbury into fixing the "Combined" memo. And Bradbury received the April 22 fax from the Assistant General Counsel of the CIA. Also note, while it’s clear Comey saw a draft of the "Combined" memo after April 22 (the one he describes as being worse than the previous draft he had seen), it’s not clear he saw another draft of the "Techniques" memo before he concurs with it on April 26–though we know the memo would have changed in the interim, since it cites the April 22 fax.

We don’t know what happened after that point. Read more →

Cheney’s and Gonzales’ CYA Libraries

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On March 12 or 13, 2004, after Jim Comey threatened to quit because George Bush had reauthorized warrantless wiretapping over Comey’s objections, Bush ordered Alberto Gonzales to write up notes of his March 10, 2004 meeting with members of Congress; the congressional meeting would serve as Gonzales’ excuse for having visited John Ashcroft in the ICU ward. Gonzales would go on to carry those notes around with him in a briefcase, thereby violating rules on treating classified information. After moving to DOJ in 2005, Gonzales did not feel safe leaving the documents in one of the DOJ safes accessible by–among others–Jim Comey (there was also one in the AG office that woudl presumably not be accessible to Comey).

On June 1, 2005, the day after Alberto Gonzales claims to have passed on Jim Comey’s warning to the NSC Principals Committee of the fallout that would come from their continuing to approve torture, the CIA produced a document that purported to tell the benefits of the torture program. That is one of two documents Cheney requested from the National Archives earlier this year to prove that torture worked. It is a document Cheney kept in his "immediate office files" in a file called "detainees."

And if that doesn’t make you suspect Cheney and Gonzales got worried enough to start building up their own little CYA libraries to protect themselves from the torture (and wiretap) fallout, consider some of the other document included in Alberto Gonzales’ briefcase of highly classified documents.

The classified materials that are the subject of this investigation consist of notes that Gonzales drafted to memorialize a classified briefing of congressional leaders about the NSA surveillance program when Gonzales was the White House Counsel; draft and final Office of Legal Counsel opinions about both the NSA surveillance program and a detainee interrogation program;

[snip]

The envelope containing the documents relating to a detainee interrogation program bore classification markings related to that program. Each document inside the envelopes had a cover sheet and header-footer markings indicating the document was TS/SCI. The documents related to the NSA surveillance program discussed in Gonzales’s handwritten notes as well as to a detainee interrogation program. The documents included Office of Legal Counsel opinions that discuss the legal bases for various aspects of the compartmented programs, memoranda summarizing the operational details of the programs, [my emphasis]

Now, as I understand it, only the 2005 memos–and not the 2002 or 2003 memos authorizing torture–bear the markings of the compartment of that program (the middle redacted phrase, as I understand it, would be the compartment). Read more →