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DOJ’s DOD Advice for CIA

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I want to make another point about the Vaughn Index relating to OLC’s advice to the CIA. Document 13 and 14 (early March discussions between DOD and OLC on interrogation) have been referred to a third agency because–as DOD documents–it is not CIA’s place to decide whether to declassify them or not. Basically, DOJ is saying, "oops, these aren’t CIA documents, they’re DOD documents, so DOD needs to deal with this."

Fair enough.

But look at document 16. By date and length, we can say with some certainty that that document is the March 14, 2003 John Yoo memo for DOD (though note, the draft in the Vaughn Index is 80 pages, whereas the final is 81 pages).

DOJ does not say–as they do with the other DOD documents–that they have referred this to DOD for processing. Rather, they withhold it–with no consultation with DOD, apparently–by labeling it pre-decisional. Here’s how they describe it:

This is an 80-page draft OLC opinion to DOD consisting of draft advice regarding interrogations of alien unlawful combatants held outside the U.S., to include handwritten notations.

It appears that the reason they don’t have to refer this to DOD is because they’re withholding it for the deliberative value, and that comes–at least in part–from those hand-written notations.

Now, I find that interesting for two reasons.  First, look at Document 15. It’s a 2-page (plus fax cover sheet) memo, dated March 7, 2003, from CIA’s Office of General Counsel to OLC asking for legal advice on detainee interrogations. March 7 is the day after Khalid Sheikh Mohammed’s torture began in earnest, so it’s possible that memo pertains to KSM (though that’s just a guess). Let’s just say I find that timing interesting.

Then there’s the suggestion–based on the fact that DOJ has not referred this to DOD for processing–that the notations on the March 14 Yoo memo came from someone at CIA. Is it possible that War Council member John Rizzo was helping Yoo write the March 14 DOD memo?

The whole thing–particularly the inclusion of a number of DOD documents in a CIA-related Vaughn Index completed under Steven Bradbury–suggests that DOD was not only reverse engineering its torture for CIA, but CIA was returning the favor by providing advice to DOD as it developed its own torture regime. 

The Lead Up to Bybee

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I want to return back to the analysis of the OLC-related Vaughn Index from last week. I’d like to fill in the timeline leading up to the issuance of the Bybee Memos and identify as nearly as possible which documents were exchanged with CIA. The timeline is below, but for now, some observations:

  • There is nothing in the two-week process leading up to the release of the Bybee Memos that appears to contribute to the Bybee One memo–the one authorizing the program in the abstract. Rather, the two week process appears to consist of negotiations over the Bybee Two memo–the one authorizing waterboarding and other torture, as there are several documents exchanged during that period known to contribute to that memo.
  • Note the mix of faxed memos and memos with no apparent cover sheets (suggesting they may have been hand carried). Particularly given that the July 13 memo from Yoo to Rizzo is one of the ones without a cover sheet, I wonder whether the non-faxed letters were sent exclusively between Yoo and Rizzo, whereas the faxed documents were shared with Bybee and others at OLC (but that’s just a wildarsed guess).
  • Note the one memo–on July 19, 2002–which the CIA claims was written in anticipation of litigation. It’s interesting this one has that declaration whereas the others don’t.
  • CIA claims the Abu Zubaydah psychological profile was a draft. Is there a final somewhere? Or do they just call it a draft because they were not sure it made Abu Zubaydah look fit for torture yet?
  • There are still a lot of questions about which DOD documents were forwarded by CIA to the DoJ. It appears likely that the missing document is the first packet of information from JPRA, which is not that inflammatory (though I wonder if it described these techniques as torture?). It also appears that DOD or CIA took apart the July 26 memo from JPRA and sent it to DOJ in parts; that’s important because it appears they left off the 2-page JPRA document referring to these techniques as torture.

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JPRA’s Advice Has Gone Missing

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As I noted earlier, ACLU got a new Vaughn Index today, covering the OLC documents pertaining to CIA’s torture program.

But what ACLU really got is a long admission from Acting OLC head David Barron that OLC has lost ten or more of the documents included on a Vaughn Index provided in 2007.

And one of those documents–apparently referred to as Document 6 in both Vaughn Indices–is one of the packets of information JPRA provided to Jim Haynes and from there to OLC as back-up to the Bybee Two Memo (though note, given the date of July 25, this does not appear to be the document compiled urgently that described waterboarding).

The 2007 Index refers to the document as a 46-page document, dated July 25, 2002, providing legal advice. Yesterday’s Index refers to the document as a 59-page document, from and to the DOD, dated July 25, 2002, providing legal advice.

The page discrepancy, by itself is interesting (that is, if they don’t have the document, then how do they know that the original index listed the page numbers wrong?). 

And then there’s the fact that this document is missing. Some of these documents discussed SERE techniques as torture. In the SASC report, both Jim Haynes and John Rizzo were very squirmy about discussing how DOD advice to to OLC for CIA’s torture memos; if we had the document itself, we might be able to explain that definitively. And then there’s the possibility that someone took notes on this document.

But, if my reading of the two Vaughn Indices is correct, we can’t answer those questions. Because somehow, one of the key documents in the generation of the torture memos has just disappeared from a SCIF facility.

Bybee: No Written Advice Provided to Any Agency Prior to August 1, 2002

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 When Jay Bybee responded to written questions from Carl Levin about the torture authorizations in October 2008 (at a time when the Office of Professional Responsibility investigation was well-advanced, if not done), he made the following assertion.

While Judge Bybee said that he did not recall "any written advice provided to any governmental agency prior to August 1, 2002, on the meaning of the standards of conduct required for interrogation under the federal anti-torture statute or on specific interrogation methods," the August 1, 2002 memos were not the only occasion on which DOJ provided legal advice on the CIA’s interrogation program.

That’s interesting, because we know that on July 13, 2002, John Yoo wrote John Rizzo a letter in which he mapped out how to avoid prosecution for torture. He wrote:

This letter is in response to your inquiry at our meeting today [not attended by Bybee] about what is necessary to establish the crime of torture, as set forth in 18 USC 2340 et seq. The elements of the crime of torture are: (1) the torture occurred outside the United State; (2) the defendant acted under the color of law; (3) the victim was within the defendant’s custody or physical control; (4) the defendant specifically intended to cause severe mental or physical pain or suffering; and (5) the act inflicted severe mental or physical pain or suffering.

[snip]

Moreover, to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose, [sic] of causing prolonged mental harm in order for the use of any of the predicate acts to constitute torture. Specific intent can be negated by a showing of good faith.

Now, it’s possible that Bybee did not consider this "written advice," but it sure seems to address the topic at hand (and note, Bybee did not say "opinion," but only "written advice"). It’s possible he lied–though I would imagine his answers to Levin very closely matched the answers he gave to OPR to what would presumably be remarkably similar questions.

Just as likely, I think Bybee may not have known about this letter.  On June 22, 2004, the day OLC withdrew the Bybee One memo, John Rizzo faxed the letter (including the fax cover sheet Yoo originally used) back to Daniel Levin. That either suggests Rizzo was trying to remind Levin of the meeting on July 13, 2002 (which Levin had attended as FBI Chief of Staff). Read more →

The JPRA Memo Described the “Improvised” Techniques Later Used

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Remember this post, in which I argued that a JPRA memo sent to DOD (and probably to CIA and OLC) on July 26, 2002, was probably the description of torture for which OLC gave an oral authorization on that same day? Now that we’ve seen the CIA’s IG Report and many of the documents requesting approval for "new" torture techniques, it’s clear that this document not only described waterboarding as it was practiced, but also a number of other other torture techniques integrated in the program.

Here’s how the SASC Report described the contents of this memo.

On July 26, 2002, JPRA completed a second memorandum with three attachments to respond to the additional questions from the General Counsel’s office. The memo stated that "JPRA has arguably developed into the DoD’s experts on exploitation and as such, has developed a number of physical pressures to increase the psychological and physical stress on students …"

In the memo, JPRA informed the General Counsel’s office that it had already "assist[ed] in the training of interrogator/exploiters from other governmental agencies charged with OEF exploitation of enemy detainees."190 The memo also stated:

Within JPRA’s evolving curriculum to train interrogators/exploiters many interrogation approaches are taught along with corresponding options for physical pressures to enhance the psychological setting for detainee interrogation. Several of the techniques highlighted (Atch 1) as training tools in JPRA courses, used by other SERE schools, and used historically may be very effective in inducing learned helplessness and ‘breaking’ the OEF detainees’ will to resist."

The first attachment to the July 26,2002 memo was ”Physical Pressures used in Resistance Training and Against American Prisoners and Detainees."192 That attachment included a list of techniques used to train students at SERE school to resist interrogation. The list included techniques such as the facial slap, walling, the abdomen slap, use of water, the attention grasp, and stress positions. 193 The first attachment also listed techniques used by some of the service SERE schools, such as use of smoke, shaking and manhandling, cramped confinement, immersion in water or wetting down, and waterboarding.

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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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More CIA Lies about Torture Briefings

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Time has an important story matching a claim made in Steven Bradbury’s July 20, 2007 OLC memo about Congressional briefings on torture with what the Senators themselves (particularly John McCain) say about briefing they received. The claim–which appears in the middle of a discussion about what shocks the conscience (pages 43-44)–is this:

Nevertheless, you have informed us that prior to passage of the Military Commissions Act, several Members of Congress, including the full memberships of the House and Senate Intelligence Committees and Senator McCain, were briefed by General Michael Hayden, Director of the CIA, on the six techniques that we discuss herein and that, General Hayden explained, would likely be necessary to the CIA detention and interrogation program should the legislation be enacted. In those classified and private conversations, none of the Members expressed the view that the CIA detention and interrogation program should be stopped, or that the techniques at issue were inappropriate. Many of those Members thereafter were critical in ensuring the passage of the legislation, making clear through their public statements and through their votes that they believed that a CIA program along the lines General Hayden described could and should continue.

The Time article focuses closely on McCain’s objection to this representation:

A spokeswoman for McCain said that contrary to those claims, the Arizona Republican repeatedly raised objections in private meetings, including one with Hayden, about the use of sleep deprivation as an interrogation technique. "Senator McCain clearly made the case that he was opposed to unduly coercive techniques, especially when used in combination or taken too far — including sleep deprivation," says Brooke Buchanan, a spokeswoman for McCain.

Less prominent, but important given her current position as Chair of SSCI investigating–among other things–CIA’s lies about briefings, is this objection from DiFi:

In the weeks that followed, according to a person familiar with matter, California Democrat Diane Feinstein, a member of the committee, raised concerns with the CIA about use of enhanced interrogation techniques.

Now, some of the people briefed have already raised objections about the characterizations made of these briefings (for example, Feingold wrote a letter objecting to the program and later wrote objecting to Hayden’s representations of his briefings on the program). Read more →

“We Will Provide, at a Later Date, an Opinion That Explains the Basis for this Conclusion”

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There’s an interesting line in the August 6, 2004 letter from Daniel Levin to John Rizzo approving the use of waterboarding with (we know from the later 2005 memos and from the short name included here) Hassan Ghul. Levin promises to send an opinion that explains the basis for his conclusion that waterboarding would be legal (albeit a close call).

We will provide, at a later date, an opinion that explains the basis for this conclusion.

That promise doesn’t appear on the July 7, 2004 letter from Jack Goldsmith approving the use of all the techniques but waterboarding (I’m not certain the letter pertains to Ghul). It doesn’t appear on the July 22, 2004 letter from John Ashcroft to John McLaughlin (then Acting DCI), approving everything but waterboarding. It doesn’t appear on the September 20, 2004 letter approving a bunch of other techniques, including water dousing.

It appears to show up only on the letter approving waterboarding. Waterboarding, and only waterboarding.

That’s mighty interesting because, in 2005, when OLC was just getting around to writing that promised opinion, CIA provided last minute information to make sure that waterboarding would be included in the March 10 Combined memo. They had to do so because CIA’s December 30 memo on combined techniques did not include waterboarding. So, with the last minute information, the Combined Memo came to argue that it was okay to waterboard someone who had been deprived of sleep. And, as Jim Comey revealed in his emails, that Combined memo was really intended to authorize treatment retroactively.

Now this doesn’t prove that the CIA waterboarded Ghul. (They claim to have decided not to because he was too obese for the technique.) Perhaps it wasn’t Ghul they waterboarded; perhaps it was someone they tortured later. We can’t ask Ghul because he remains disappeared, last seen in a Pakistani jail.

All of this is inconclusive. But Levin’s promise of a follow-up memo, combined with the urgency surrounding the memo in April 2005, suggests they really did waterboard someone. 

If so, they have been lying about it to Congress and the American people ever since.

Update: I’m still working through these–and I see that the August 26, 2004 letter from Levin to Rizzo has the same line, as well as a September 6, 2004 one that appears to relate to a different detainee. That letter discusses four new techniques that had not been used before, which showed Read more →

Condi’s Okay Came After OLC Approval

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Here’s an interesting data point.

On July 13, 2002, representatives of CIA’s Office of General Counsel (probably John Rizzo) met with John Bellinger, John Yoo, Michael Chertoff, Daniel Levin, and Alberto Gonzales for overview of interrogation plan. That very same day, Yoo wrote Rizzo, generally laying out the logic he would use in the later memos approving the program. He wrote:

Moreover, to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose of causing prolonged mental harm in order for the use of any of the predicate acts to constitute torture. Specific intent can be negated by a showing of good faith. Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental pain or suffering, he would not have acted with the specific intent necessary to establish torture.

Four days later, Condi told George Tenet the "CIA could proceed with its proposed interrogation of Abu Zubaydah … subject to a determination of legality by OLC."

In other words, OLC had already given CIA a pretty broad okay before Condi gave Tenet the policy okay.

One more detail of interest. Note the redacted name on the second page of the letter–perhaps as long as 16 characters long. That’s too long to be Jay Bybee or Pat Philbin (though it could be Patrick Philbin). Though it’s probably long enough to be either Robert Delahunty (who had partnered with Yoo on some other crazy opinions by that point) or David Addington. Or, heck, even Alberto Gonzales. Whose role in the torture approval process is DOJ trying to hide?

Update: One more detail of interest. On June 22, 2004, the same day Goldsmith, Comey, and Philbin withdrew the Bybee Memo, John Rizzo sent this earlier approval to Philbin. That seems to suggest that Philbin did not know about it and may even suggest that it wasn’t in OLC’s records (though Philbin, by that point, worked under Comey at DAG. 

Where Is the “Legal Principles” Document?

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One of the most important–but least sexy–passages revealed in yesterday’s release of the IG Report is this one, on page 22.

OGC continued to consult with DoJ as the CTC Interrogation Program and the use of EITs expanded beyond the interrogation of Abu Zubaydah. This resulted in the production of an undated and unsigned document entitled, "Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa’ida Personnel.27 According to OGC, this analysis was fully coordinated with and drafted in substantial part by OLC. In addition to reaffirming the previous conclusions regarding the torture statute, the analysis concludes that the federal War Crimes statute, 18 U.S.C. 2441, does not apply to Al-Qa’ida "Because members of that-group are not entitled to prisoner of war status. The analysis adds that "the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war." It also states that the interrogation of Al-Qa’ida members does not violate the Fifth and Fourteenth Amendments because those provisions do not apply extraterritorially, nor does it violate the Eighth Amendment because it only applies to persons upon whom criminal sanctions have been imposed. Finally, the analysis states that a wide range of EITs and other techniques would not constitute conduct of the type that would be prohibited by the Fifth, Eighth, or Fourteenth Amendments even were they to be applicable:

The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees’ hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board.

According to OGC, this analysis embodies DoJ agreement that the reasoning of the classified 1 August 2002 OLC opinion extends beyond the interrogation of Abu Zubaydah and the conditions that were specified in that opinion. [my emphasis]

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