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Is Mukasey Suggesting We Ignored Information Mohammed al-Qahtani Gave Us?

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I’ve been having difficulty finding the time to get through the entire AEI torture extravaganza that took place yesterday (“Moderated” by John Yoo). But by the time I read this Greg Sargent piece, I had gotten through the point at about 3 minutes in where Michael Mukasey said,

Was there a memo in the file beforehand [before KSM uttered the name of courier Abu Ahmad al-Kuwaiti] that contained that name? Yes, but it was disregarded because it came from somebody insignificant and it was not regarded as significant.

Which in and of itself seems an admission (one reflected in the CIA IG Report) that CIA wasn’t accrediting intelligence from more minor figures adequately in their assessments of efficacy.

But there may be another problem with Mukasey’s statement. According to the NYT, KSM was reported to have been asked about al-Kuwaiti months after his waterboarding, in fall 2003.

And as you may have seen in reporting, al-Kuwaiti’s name comes up in a curious reference in Mohammed al-Qahtani’s Gitmo file. Note I’m showing the quotes themselves and the sources. And as you read this, remember that KU-10024 is KSM’s detainee number, so the email training described involves KSM, al-Kuwaiti, and al-Qahtani.

(S//NF) Detainee received computer training from al-Qaida member Abu Ahmad al-Kuwaiti in preparation for his mission to the US.

(S//NF) Detainee stated while at Abu Shem’s house in Karachi in July 2001, KU-10024 had al-Kuwaiti teach detainee to send email. KU-10024 informed detainee when someone went on a mission, he would need to know how to send messages and email was safer than talking on the phone. Al-Kuwaiti took detainee to a local internet cafe for his training.42

(S//NF) Abu Ahmad al-Kuwaiti was a senior al-Qaida facilitator and subordinate of KU-10024. Al-Kuwaiti worked in the al-Qaida media house operated by KU-10024 in Kandahar and served as a courier.43

(S//NF) Al-Qaida facilitator Hassan Ghul stated al-Kuwaiti, Hamza al-Ghamdi and Abd al-Rahman al-Maghrebi traveled with UBL.44 (Analyst Note: Al-Kuwaiti was seen in Tora Bora and it is possible al-Kuwaiti was one of the individuals detainee reported accompanying UBL in Tora Bora prior to UBL’s disappearance.)

(S//NF) Detainee stated he was not very skilled in the use of email and al-Kuwaiti told KU-10024 it would be difficult for the detainee to fully understand computers or how to use the internet for the purpose of emailing. (Analyst Note: Detainee attended a computer course in Saudi Arabia and received a certificate upon graduating. It is doubtful detainee would not be able to grasp the concept and procedures necessary for internet email, especially with Arabic websites that offered the service. Detainee stated KU-10024 provided him with a code to use when he reported success obtaining his visa.)45

42 IIR 6 034 1194 03

43 IIR 6 034 0226 05, TD-314/04398-05, TD-314/39130-02

44 TD-314/29012-04, TD-314/30205-04, Analyst Note: For additional information see TD-314/05730-05, IIR 6 034 0226 05, TD-314/45991-05, TD-314/63199-04, TD-314/04398-05, TD-314/56328-04, TD-314/55744-04, TD- 314/49162-04, TD-314/45296-04, TD-314/24351-04, TD-314/04950-04, TD-314/39130-02, IIR 6 034 0760 03

45 IIR 6 034 1194 03, 000063 SIR 30-MAY-2003, IIR 6 034 1205 03 [my emphasis]

First, note the argument they’re making here. To support the claim that Mohammed al-Qahtani must be an important al Qaeda figure, they use his own description of being trained on using email by Abu Ahmad al-Kuwaiti, and then link that up with all the information the folks at Gitmo knew about al-Kuwaiti in 2008, thereby showing associatively that al-Qahtani was being trained by people–KSM and al-Kuwaiti–who had close ties to OBL.

Some of this information to support this argument was obviously collected after al-Qahtani’s earlier interrogations (and notably, after the most intense part of his torture, which lasted from November 23, 2002 to January 15, 2003) and from other detainees. The information about al-Kuwait’s role as a facilitator and courier (see footnote 43) is sourced to two intelligence reports from 2005, and one from 2002. Given that there’s nothing that says al-Qahtani explained this detail himself, that 2002 report might be the report from the detainee held by another country.

Then there’s the intelligence given by Hassan Ghul, dated 2004 (see footnote 44), stating that al-Kuwaiti traveled with OBL. One of the two 2005 reports also cited is one of the same reports named in footnote 45.

It’s the information that came from al-Qahtani himself–which takes the form, “detainee stated”–that’s more interesting. The three pieces of intelligence that appear to come from al-Qahtani (see footnotes 42 and 45) are all dated 2003. More interesting, one of them is named 000063 SIR 30-MAY-2003. The appearance of al-Qahtani’s detainee number, 063, seems confirmation this intelligence came from him. And the report is dated May 30, 2003, at least three months before KSM is reported to have talked about al-Kuwaiti, but more than five months after his torture ended.

Now, it’s possible that al-Qahtani didn’t use al-Kuwaiti’s nickname. But it at least appears that al-Qahtani was using it several months before KSM was. Mind you, he didn’t say anything about al-Kuwaiti traveling with OBL (which came two years later from Hassan Ghul) or being a courier (which may have come from that detainee in another country). Just that some guy with ties to KSM tried to teach him to use email.

Of course, this doesn’t clear up the torture debate at all (aside from the fact that torture is illegal and immoral and, in the case of al-Qahtani, has made it impossible to try him for his presumed role in 9/11). After all, it appears that, like KSM, al-Qahtani started to talk about al-Kuwaiti five months after being tortured. And note, it appears, though is not certain, that al-Qahtani did not give this information to the FBI or DOD before he was tortured, when they didn’t know who he was.

But it does appear to be fatal for Mukasey’s story. It’s one thing to claim that a detainee in some other country is so minor no one paid attention to the intelligence he offered. But you can’t make the claim al-Qahtani–the assumed 20th hijacker–was insignificant.

Which leads to the bigger question: why did it take CIA at least three months after al-Qahtani talked about being trained for 9/11 by al-Kuwaiti before they asked KSM about him?

Michael Mukasey Doubles Down on the Sophism

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The most interesting aspect of Michael Mukasey’s retort to John McCain’s op-ed calling him a liar is not the content–that’s the same old trite sophism–but rather the publication details of it.

It appears not under Mukasey’s byline, but under Dick Cheney’s speech-writer’s byline, complete with a picture. And when he introduces Mukasey’s words, Marc Thiessen doesn’t use any of those trappings of grammar or publication we normally use to indicate direct quotations from others, like quotation marks or a blockquote. Rather, Thiessen just says “here is his statement:” and then launches right into “Senator McCain described as “false” my statement that Khalid Sheikh Mohammed broke under harsh interrogation…”

The seamlessness between Thiessen and Mukasey speaking in the first person all has the wonderful effect of emphasizing that Mukasey’s original statement was simply another product of Dick Cheney’s torture apologist PR campaign. In a bid to salvage the moral capitulations Mukasey made to become Attorney General, he now speaks in the voice of Dick Cheney’s flack.

And note the rather incredible ethical lapse here? McCain’s op-ed, remember, was published in the WaPo, the same paper Mukasey–I mean Thiessen’s–response is in. At current count, McCain’s op-ed has 778 Tweets and 5837 recommendations–22 times as many recommendations as Thiessen’s own op-ed on torture published two days earlier. [Update: And Greg Sargent did a post on McCain’s Senate speech, which itself has 6661 recommends at this point.] Whether McCain’s op-ed made Fred Hiatt vomit or not, it has brought the WaPo a great deal of traffic and attention, precisely what newspapers generally like to do with their op-ed pages. Generate controversy, influence debate, get traffic.

But Thiessen didn’t link McCain’s op-ed! He prevented the WaPo from enjoying the stickiness that a heated debate conducted within its own pages can give.

Of course, he also made it a lot more difficult for his–um, I mean Mukasey’s–readers to compare Mukasey’s rebuttal with McCain’s own op-ed. Thiessen–um, I mean Mukasey–must hope that readers don’t see that McCain’s claim had everything to do with whether torturing Khalid Sheikh Mohammed led to Osama bin Laden, whereas Thiessen’s–um, I mean Mukasey’s rebuttal–clings to KSM’s use of a nickname that the US already knew. Or maybe Thiessen–um, I mean Mukasey–didn’t want his readers to know that KSM lied under torture and actually hindered the hunt for OBL, even after Thiessen’s–um, I mean Mukasey’s–cherished torture was used.

Or maybe Thiessen–um, I mean Mukasey–is hiding the much more powerful argument McCain made (which, as Amy Davidson lays out, was unfortunately diminished by McCain’s call for no prosecutions), in which McCain talks about the moral imperative not to torture.

As we debate how the United States can best influence the course of the Arab Spring, can’t we all agree that the most obvious thing we can do is stand as an example of a nation that holds an individual’s human rights as superior to the will of the majority or the wishes of government? Individuals might forfeit their life as punishment for breaking laws, but even then, as recognized in our Constitution’s prohibition of cruel and unusual punishment, they are still entitled to respect for their basic human dignity, even if they have denied that respect to others.

All of these arguments have the force of right, but they are beside the most important point. Ultimately, this is more than a utilitarian debate. This is a moral debate. It is about who we are.

You see, this is all about Thiessen–um, I mean Mukasey–engaging in another round of sophism, of setting facts loose in a haze of illogical statements to confuse readers. To allow readers to see a clear assertion that torture violates America’s claims to moral standing might clarify what Thiessen and those he speaks for are trying so desperately to muddle.

Why Did the Torture Apologists Come Out of their Caves?

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I don’t really have the heart to refute Michael Mukasey’s apology for torture. In it, he contradicts assertions made by torture apologists who were closer to the torture. He includes extraneous (and false) details to fluff up his case. He falsely pretends the torture described in the torture memos accurately described what happened to the detainees he claims led to OBL. And he doesn’t even have the amusing self-contradiction that Rummy had, which at least made Rummy’s psychological pretzel interesting to read.

In short, for Mukasey, the capture of OBL is not time to celebrate, but rather an opportunity to launch a hackish political attack on President Obama.

But the piece did lead me to reflect on why the torture apologists are so desperately trying to give torture the credit for finding OBL.

There’s the big reason, of course, hinted at by Jose Rodriguez. He stated that the most valuable piece of intelligence Abu Faraj al-Libi revealed under torture was that OBL’s courier only communicated with the outside world every two months. From that, Rodriguez concluded that OBL was only a figurehead, no longer the active head of al Qaeda (a conclusion that may have been proven false by the intelligence found at OBL’s compound). Later that year, CIA would shutter the group focusing on finding bin Laden because–they had concluded–al Qaeda was no longer the hierarchy that had made OBL such a key figure earlier.

In other words, it’s not just that the torture apologists’ claims about torture–that it would immediately yield the information that would lead to OBL, allowing them to bypass the years of intelligence gathering it ultimately took to find OBL–proved so wrong. It’s that one of the chief torturers seems aware that the best piece of intelligence they got under torture is intelligence that led him to stop searching for OBL.

Then there’s the laughable reason Mukasey seems to be animated by: because Obama’s being mean to the torturers.

Yet the Justice Department, revealing its priorities, had gotten around to reopening investigations into the conduct of a half-dozen CIA employees alleged to have used undue force against suspected terrorists. I say “reopening” advisedly because those investigations had all been formally closed by the end of 2007, with detailed memoranda prepared by career Justice Department prosecutors explaining why no charges were warranted. Attorney General Eric Holder conceded that he had ordered the investigations reopened in September 2009 without reading those memoranda. The investigations have now dragged on for years with prosecutors chasing allegations down rabbit holes, with the CIA along with the rest of the intelligence community left demoralized.

[snip]

We also need to put an end to the ongoing investigations of CIA operatives that continue to undermine intelligence community morale.

Mukasey’s concern is laughable, of course, because no one really believes these ongoing investigations exist for any reason except to shield the US from torture investigations conducted by countries like Spain and Poland. After all, if you won’t charge Jose Rodriguez for destroying evidence that the torture conducted by his contractors exceeded the torture memos, you’re not going to file charges against anyone. Moreover, the statutes of limitation are expiring as we wait.

Though perhaps this is the real reason motivating Mukasey:

Immediately following the killing of bin Laden, the issue of interrogation techniques became in some quarters the “dirty little secret” of the event. But as disclosed in the declassified memos in 2009, the techniques are neither dirty nor, as noted by Director Hayden and others, were their results little. As the memoranda concluded—and as I concluded reading them at the beginning of my tenure as attorney general in 2007—the techniques were entirely lawful as the law stood at the time the memos were written, and the disclosures they elicited were enormously important. [my emphasis]

Mukasey sullied his reputation as a tough but fair judge when he agreed not to pursue torture in exchange for getting the Attorney General job. And since that time, the fiction he has been telling himself–that John Yoo’s analysis was even remotely serious, that the torturers didn’t exceed the guidelines of the memo, and that the torture proved valuable–has been exposed as a sordid lie. And ultimately, OBL’s death makes clear, it wasn’t worth it. The torture just impeded the real intelligence work that ultimately yielded OBL.

After all, ultimately the torture apologists staked their reputation on a certain approach to terrorism. That’s their legacy. It’s all they’ve got.

And, ultimately, I guess there’s one more reason the torture apologists came out of their caves. Either because of the media’s own complicity, or because the media has to sow controversy where celebration should suffice, the media is inviting them out of their caves; scheduling Condi Rice, Michael Chertoff, Michael Hayden, Rudy Giuliani, Rummy, and the pulse-less wonder himself for the Sunday shows. (The last time the Sunday shows featured a crowd like this, they were lying about mushroom clouds to gin up a war to distract us from beating al Qaeda.)

Are 95% of People Investigated Under New FBI Guidelines Innocent, but Entered into Database?

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The NYT liberated the specific answer to a question that Russ Feingold asked in March 2009, but which DOJ didn’t respond to until November 2010, when Feingold was a lame duck Senator. At issue were new investigative guidelines Attorney General Michael Mukasey issued in late 2008, on his way out the door, which allowed the FBI to investigate Americans for First Amendment reasons so long as that First Amendment reason was not the only reason they were being investigated.

Here’s how the ACLU described the new guidelines:

Under the new “assessment” authority, FBI agents can investigate anyone they choose, so long as they claim they are acting to prevent crime, protect national security, or collect foreign intelligence, with absolutely no requirement of a factual connection between their authorizing purpose and the conduct of the individuals they are investigating. FBI agents can start “assessments” without any supervisory approval, and without reporting to FBI headquarters or the Department of Justice. The Guidelines do not require the FBI to keep records regarding when “assessments” are opened or closed and “assessments” have no time limitation. The FBI can even start an “assessment” of you simply to determine if you would make a good FBI informant. Innocence no longer protects ordinary Americans from being subjected to a wide range of intrusive investigative techniques. The techniques include:

  • collecting information from online sources, including commercial databases.
  • recruiting and tasking informants to gather information about you.
  • using FBI agents to surreptitiously gather information from you or your friends and neighbors without revealing their true identity or true purpose for asking questions.
  • having FBI agents follow you day and night for as long as they want.

So in response to Feingold’s questions about how many assessments had been initiated and closed, FBI responded:

The FBI has initiated 11,667 Type 1 and Type 2 assessments, 3,062 of which are ongoing. 427 preliminary and full investigations have been opened based upon information developed in these Type 1 and Type 2 assessments. 480 Type 3, 4, 5, and 6 assessments have been initiated, of which 422 remain open.

To do the math, 95% of the Type 1 and 2 assessments that have been closed have resulted in no further investigation, suggesting the FBI was on a wild goose hunt.

But here’s the tricky thing: the FBI records on those people can be entered into FBI’s investigative databases!

Even if information obtained during an assessment does not warrant opening a predicated investigation, the FBI may retain personally identifying information for criminal and national security purposes. In this context, the information may eventually serve a variety of valid analytic purposes as pieces of the overall criminal or intelligence picture are developed to detect and disrupt criminal and terrorist activities. In addition, such information may assist FBI personnel in responding to questions that may subsequently arise as to the nature and extent of the assessment and its results, whether positive or negative. Furthermore, retention of such information about an individual collected in the course of an assessment will alert other Divisions or Field Offices considering conducting an assessment on the same individual that the particular individual is not a criminal or national security threat. As such, retaining personally identifying information collected in the course of an assessment will also serve to conserve resources and prevent the initiation of unnecessary assessments and other investigative activities.

So that says the FBI may be entering those 95% innocent people into a database with personally identifiable information.

Now, to be fair, FBI also mandates that these personally identifying information contain a warning that the person “does not warrant further FBI investigation at this time.”

As a result: (i) when records retained in an assessment specifically identify an individual or group whose possible involvement in criminal or national security threatening activity was checked out through the assessment; and (ii) the assessment turns up no sufficient basis to justify further investigation of the individual or group, then the records must be clearly annotated as follows: “It is noted that the individual or group identified during the assessment does not warrant further FBI investigation at this time. It is recommended that this assessment be closed.”

And, as Charlie Savage notes, the numbers FBI gave Feingold may not be all that accurate.

Some aspects of the statistics are hazy, officials cautioned.

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More New York Republicans Providing Material Support to Terrorists

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Speaking of material support for terrorism, David Cole uses the recent trip by Rudy Giuliani and others to suck up to the Mujaheddin-e Khalq (MEK) as an opportunity to explain the idiocy of the Holder versus Humanitarian Law Project SCOTUS verdict.

DID former Attorney General Michael Mukasey, former New York Mayor Rudolph Giuliani, Tom Ridge, a former homeland security secretary, and Frances Townsend, a former national security adviser, all commit a federal crime last month in Paris when they spoke in support of the Mujahedeen Khalq at a conference organized by the Iranian opposition group’s advocates? Free speech, right? Not necessarily.

The problem is that the United States government has labeled the Mujahedeen Khalq a “foreign terrorist organization,” making it a crime to provide it, directly or indirectly, with any material support. And, according to the Justice Department under Mr. Mukasey himself, as well as under the current attorney general, Eric Holder, material support includes not only cash and other tangible aid, but also speech coordinated with a “foreign terrorist organization” for its benefit. It is therefore a felony, the government has argued, to file an amicus brief on behalf of a “terrorist” group, to engage in public advocacy to challenge a group’s “terrorist” designation or even to encourage peaceful avenues for redress of grievances.

[snip]

But in June, the Supreme Court ruled against us, stating that all such speech could be prohibited, because it might indirectly support the group’s terrorist activity. Chief Justice John Roberts reasoned that a terrorist group might use human rights advocacy training to file harassing claims, that it might use peacemaking assistance as a cover while re-arming itself, and that such speech could contribute to the group’s “legitimacy,” and thus increase its ability to obtain support elsewhere that could be turned to terrorist ends.

Cole goes on to note the hypocrisy of the government, which has given exceptions for humanitarian purposes to corporations seeking to sell cigarettes, even while arguing NGOs cannot provide food and water.

Mind you, I’m actually with Cole: Rudy and Mukasey and Fran Fragos Townsend and Tom Ridge ought to be able to go make speeches sucking up to Iran’s version of Ahmad Chalabi (oops! I forgot that Chalabi was Iran’s!), a bunch of liars who have invented intelligence to try to justify war with Iran. That’s what Republicans do, after all: promote hucksters who can justify the next war.

But it’s really time for either some consistency in the way the government pursues its war on terror violent extremism, or an admission that the war on terror has disintegrated into a war on those who oppose US empire. The government is still investigating a bunch of peace activists for material support. And yet four prominent Republicans can offer the same kind of material support as the peace activists–but this time in service of war or US hegemony or oil–with no similar consequences?

The Timing of the Ramzi bin al-Shibh Tapes

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I wanted to point out two details of timing on the Ramzi bin al-Shibh tapes:

  • The tapes were made after CIA started getting worried about making interrogation tapes
  • The tapes were disclosed after the CIA started trying to figure out what happened to the Abu Zubaydah tapes

The tapes were made after CIA already started getting worried about making interrogation tapes

The AP says the tapes were made while al-Shibh was in Morocco for the first time–sometime between September 17, 2002 and March 7, 2003.

When FBI agents finally had a chance to interview Binalshibh, they found him lethargic but physically unharmed. He projected an attitude suggesting he was unconcerned he had been caught.

Before the FBI made any real headway, the CIA flew Binalshibh on Sept. 17, 2002, to Morocco on a Gulfstream jet, according to flight records and interviews.

Current and former officials said this was the period when Binalshibh was taped. His revelations remain classified but the recordings, the officials said, made no mention of the 9/11 plot. It’s unclear who made the tapes or how they got to the agency’s Langley, Va., headquarters.

In March 2003, Binalshibh was moved to a Polish facility code-named Quartz soon after his mentor, Mohammed, was nabbed in Pakistan.

This would mean al-Shibh arrived in Morocco (and therefore the tapes were made) sometime after some people met at Langley and decided they should destroy the Zubaydah tapes.

On 05 September 2002, HQS elements discussed the disposition of the videotapes documenting interrogation sessions with ((Abu Zubaydah)) that are currently being stored at [redacted] with particular consideration to the matters described in Ref A Paras 2 and 3 and Ref B para 4. As reflected in Refs, the retention of these tapes, which is not/not required by law, represents a serious security risk for [redacted] officers recorded on them, and for all [redacted] officers present and participating in [redacted] operations.

[snip]

Accordingly, the participants determined that the best alternative to eliminate those security and additional risks is to destroy these tapes [redacted]

The CIA appears to have already been manipulating briefing records, possibly to give the appearance of Congressional support for either the program or the destruction of the tapes.

Note, too, that there are only two video tapes (plus the “audio” tape I’ve raised questions about here). If the audio tape were, in fact, just an audio tape, that would leave two video tapes. Which is how many tapes existed of Rahim al-Nashiri’s interrogations, at least by the time they did the inventory. That’s presumably because al-Nashiri was taken into CIA custody after the point when–on October 25, 2002–HQ told the Thai black site to record over tapes every day.

It is now HQS policy that [redacted] record one day’s worth of sessions on one videotape for operational considerations, utilize the tape within that same day for purposes of review and note taking, and record the next day’s sessions on the same tape. Thus, in effect, the single tape in use [redacted] will contain only one day’s worth of interrogation sessions.

Now we know they kept two (or maybe three) tapes for al-Nashiri (presumably taking notes off one day’s tape while the other was being used to record new interrogations) because the tape inventory shows the following:

Detainee #2

[Tape] 91 [Redacted]tape and rewind #2

[Tape] 92 3 [Redacted] use and rewind #3 [redacted] final

While obviously we have no such inventory showing the al-Shibh tapes, it is possible that they were used in the same manner as the al-Nashiri tapes were–to collect just one day’s worth of interrogation to assist in transcription or note-taking. (And remember, ultimately there were transcriptions made of the al-Shibh tapes, though we don’t know when that happened). It’s possible then–though this is just a wildarsed guess–that the existence of just three tapes suggests they were started after HQ decided to tape over tapes (so after October 25), or that they first implemented the policy for al-Shibh sometime before October 25.

Also note the content of the last three–presumably chronologically–tapes of Abu Zubaydah. Tapes 89 and 90 are “use and rewind” #1 and #2. But the tape just before that–tape 88–has “no video but there is sound.” Thus, the last three tapes from Abu Zubaydah consist of two video tapes and one “audio” tape, just like the three tapes from al-Shibh.

If in fact the 2-3 al-Shibh tapes only include the last days of his interrogation on which taping was used, then the AP source’s claim that they simply show him sitting in a room being interrogated doesn’t mean that the tapes contained no forensic evidence of something else–more abusive interrogations that happened on earlier days. After all, the tapes would no longer “show” what had happened during earlier interrogation sessions.

One more note about this early period. One question the AP raises is when and how the tapes were moved from Morocco to Langley.

It’s worth remembering that the Zubaydah and al-Nashiri tapes were also moved at one point. In a cable from HQ to the field (we know this from Vaughn Indices that described this cable before it was released) written on December 3, 2002, just days after John McPherson reviewed the torture tapes and presumably discovered they had been tampered with, someone says:

It was a mistake to move [redacted] tapes [redacted] in light of Ref C guidance.

Notably, given that this refers to tapes being moved in the past tense on December 3, this may suggest the tapes were moved from the black site before it was finally closed. Mind you, the detail may be completely irrelevant to al-Shibh’s tapes, but they do suggest people in the field were moving tapes without clear approval from HQ.

The tapes were disclosed after the CIA started trying to figure out what happened to the Abu Zubaydah tapes

As I noted here, the story the AP’s sources told (that a person stumbled across a box under a desk with all three al-Shibh tapes in it) and the story DOJ told Leonie Brinkema (that they learned first of one tape, and then, after asking CIA to make sure there were no more) differ in key ways.

But that difference gets all the more interesting given indications that CIA was trying to figure out what had happened to the Zubaydah tapes in precisely the same time period. Read more →

Steven Bradbury: Breaking His Own Rules Even as He Writes Them

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I’m working on a big post on the May 2005 Bradbury Memos. But I wanted to point out this tidbit about them in the interim.

As you might recall, the Jim Comey emails (probably leaked by the torture apologists last summer) provide a few clues about why Comey objected to the May 10, 2005 Combined memo. Significantly, he thought the memo was too general because it did not stick to the facts regarding one detainee who had already been tortured.

I also suggested a possible way to narrow the focus of the second opinion to be more responsible.

[snip]

[Alberto Gonzales’ Chief of Staff Ted Ullyot] said Pat had shared my concerns, which he understood as concerns about the prospective nature of the opinion and its focus on “prototypical” interrogation.

[snip]

He mentioned at one point that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

As it happens, just six days after the Combined memo was published, Steven Bradbury issued a set of “Best Practices” for OLC. On at least two counts, his “Best Practices” violated the entire set of the May 2005 memos. In particularly, though, he warned against writing memos that were either retrospective or overly general.

The legal question presented should be focused and concrete; OLC generally avoids undertaking a general survey of an area of law or a broad, abstract legal opinion.

[snip]

Finally, the opinions of the Office should address legal questions prospectively; OLC avoids opining on the legality of past conduct (though from time to time we may issue prospective opinions that confirm or memorialize past advice or that necessarily bear on past conduct).

And yet, the Combined memo suffered from the fault of being both retrospective to that one detainee and overly general.

I wonder if that’s one of the reasons why Michael Mukasey spiked Office of Professional Responsibility’s proposed review of these memos.

Mukasey’s Muddle

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Say what you will about Michael Mukasey, but usually he can craft a fairly logical argument.

That’s not, however, true of this muddled op-ed in the WSJ. The op-ed attempts to draw an equivalence between lawyers–but not civil liberties organizations–that have represented Gitmo detainees and Yoo and Bybee (and, by association, though he doesn’t admit it, Michael Mukasey). But the muddle that results demonstrates as well as anything how conflicted and illogical Mukasey’s own position is.

Mukasey starts by asserting a parallel between three different sets of lawyers:

  • Bernie Madoff’s lawyer
  • Yoo and Bybee “for legal positions they took as to whether interrogation techniques devised and proposed by others were lawful—a campaign that also featured casual denunciations of them as purveyors of torture”
  • Lawyers in private practice who represented detainees and “have been portrayed as in-house counsel to al Qaeda”

Now, Mukasey misrepresents why Yoo and Bybee are being attacked. It’s not because of the legal positions they took, it’s because of the process by which they purportedly came to those opinions.

But look how quickly claiming a parallel between these three groups of lawyers–two engaged in antagonistic proceedings, the third not–to this step.

A lawyer who represents a party in a contested matter has an ethical obligation to make any and all tenable legal arguments that will help that party. A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe.

Mukasey moves from legal representation of a client to–in Mukasey’s own words–“authoriz[ing] any step or practice the law permits … to keep the nation … safe.” Mukasey is now saying that Yoo and Bybee authorized torture, rather than analyzing statutes such that their client (whoever Mukasey wants to claim that is, because it changes) can authorize torture, based on Yoo’s legal advice. (Note, as AG, Mukasey may well have authorized such things, but the arguments folks have made to defend Yoo all presume he didn’t do the actual authorization, which would suggest he made the policy decision.)

And never mind the unquestioned assumption that lawyers are obligated to do this “in order to keep the nation … safe,” suggesting that the purported efficacy of the torture somehow changed the legal obligations involved.

In other words, these are not at all parallel cases. One is protecting the law, the process of the law. The other is claiming to protect the country, with a pretty twisted definition of the role of the lawyers involved.

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“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.

OLC Identified 31 Missing Documents During Period Leading Up to Torture Tape Investigation

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As I reported on Monday, DOJ lost not only John Yoo and Patrick Philbin’s emails from the period when they were writing the Bybee Memos. It also lost at least 10 documents on torture, a number of them that went into the development of the torture memos.

We first learned these documents had disappeared from a declaration that David Barron, Acting head of OLC, submitted in response to an ACLU FOIA last September. In it, he described the six month effort OLC made last year to recreate the original Vaughn document first created in 2005. With a lot of searching last year, OLC was able to identify 171 documents that might be the documents referenced in the original Vaughn Index.

But OLC appears to have first discovered the problem before last year. Barron’s declaration describes one OLC lawyer attempting–but failing–to identify all the documents in the Vaughn index during late December 2007 or early January 2008. At that time, the OLC lawyer was only able to identify 150 of the 181 documents listed in the Vaughn index.

On at least one occasion in late 2007 or early 2008, when the documents were recalled by OLC from OPR for purposes of another matter, an OLC attorney made significant efforts to recompile the 181 documents listed on the original Vaughn index based on the descriptions of the documents in that index. The attorney made tentative identifications of approximately 150 of the 181 documents and marked the original documents with pencil numbers corresponding to the Vaughn index in the lower left-hand corner of each of those 150 documents.

It’s likely, but not certain, that these documents were recalled as part of DOJ’s review of whether it should criminally investigate the torture tape destruction (news of the tape destruction broke December 6 and Mukasey announced the investigation on January 2). And whether or not that’s why they recalled these documents, the OLC lawyer who tried to recreate the Vaughn index had to have been aware that CIA had destroyed evidence of its torture program.

And yet, according to Barron’s declaration, no one made any attempt to look for the 31 documents that OLC lawyer had not been able to find for more than another year.

That’s a remarkably lax attitude regarding documents potentially disappearing from a SCIF.