The Context of the Torture Index

I wanted to return to the torture index released to ACLU the other day to comment on what the CIA claims to have in terms of records.

First, remember what this index is. The April 21 order required CIA to turn over two things. 

  • Records "relating to the content" of the torture tapes "from the entire period of the tapes that were destroyed"
  • "Documents relating to the destruction of the tapes, which describe the persons and reasons behind their destruction"

The second bullet (referred to as Paragraph 4 material) is the stuff discussed in the recent John Durham squabble. The first bullet (referred to as Paragraph 3 material) is the stuff we got the other daya and which I’ll discuss in this post.

The May 7 order summarizes how CIA and ACLU agreed CIA would treat those records that described the content of the torture tapes.

In response to earlier orders, the CIA originally identified appropximately 3,000 documents potentially responsive to paragraph 3 of the Court’s April 20, 2009 Order. Those 3,000 records included "contemporaneous records," which were created at the time of the interrogations or at the time the videotapes were viewed, "intelligence records," which do not describe the interrogations but contain raw intelligence collected from the interrogations, "derivative records," which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations that, upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.

With respect to paragraph 3 of the April 20, 2009 Order, the parties jointly propose that the Government address the contemporaneous and derivative records, but not the intelligence records or the other records that ultimately proved to be unrelated to the interrogations or the videotapes. With respect to the contemporaneous and derivitive records, the parties jointly propose the following: 

  • May 18, 2009: The Government will produce a list of all contemporaneous records and all derivative records. The list will, to the greatest extent permissible on the public record (i.e., the list will not include classified information or information otherwise protected by statute), identify the date, sender, recipient, type, and subject matter for each record;

So the stuff we got the other day is one of three things:

  • Documentation made contemporaneously with interrogations that were videotaped
  • Documentation made contemporaneously to the viewing of the videotapes
  • Derivative records that summarize the contents of the contemporaneous record

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Debunking the Torture Apologists’ “Half the Intelligence” Claim

In another thread, Bob Schacht wrote,

BTW, according to CNN, Haynes and Mukasey are claiming that “half” of what we “know” about Al Qaeda came from torture sessions. Did they really write that, and if so, I’m wondering if its puffery or true.

Using the May 30, 2005 Bradbury memo, I think I can show where it comes from–and show why it’s a totally useless claim.

Bradbury Needed to Appeal to Efficacy to Claim These Techniques Didn’t Violate the Convention Against Torture

In the May 30, 2005 Memo, Steven Bradbury spends four pages recording the effectiveness of enhanced interrogation. He does this, at least partially, to make sure he can claim that the techniques at issue don’t "shock the conscience" and therefore don’t violate the Fifth Amendment (and therefore don’t violate CAT, which is the whole point of this memo) . In particular, Bradbury resorts to efficacy when trying to distinguish between torture condemned by the State Department and that practiced by the US. Speaking of torture practiced by other countries, Bradbury claims it simply doesn’t serve the same purpose as our torture.

There is no indication that techniques are used only as necessary to protect against grave terrorist threats or for any similarly vital government interests.

And when Bradbury is trying to distinguish enhanced interrogation from SERE, he again appeals to efficacy and necessity.

… the interrogation program we consider here furthers the paramount interest of the United States in the security of the Nation more immediately and directly than SERE training.


It follows that use of these techniques will not shock the conscience in at least some circumstances. We believe that such circumstances exist here, where the techniques are used against unlawful combatants who deliberately and secretly attack civlians in an untraditional armed conflict in which intelligence is difficult or impossible to collect by other means and is essential to the protection of the United States and its interests, where the techniques are used only when necessary and only in the interrogations of key terrorist leaders reasonably thought to have acionable intelligence, and where every effort is made to minimize unnecessary suffering and to avoid inflicting significant or lasting harm.

It bears noting that this rant goes far beyond what Bradbury elsewhere carefully laid out as the premise of his memo. But both this claim and the one dismissing State Department concerns about torture rely on his argument that the program was necessary to protect the US. 

So to accomplish his apparent task–which was to find a way to declare the CIA interrogation program did not violate CAT (after CIA’s own IG had already concluded it did), Bradbury needed to be able to say it was effective.

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Holder Wants to Stop Playing Mukasey’s Whack-a-Mole with Financial Fraud

Last June, at a time when it was clear the shitpile was a big fraud but before the perpetrators had destroyed the evidence, Michael Mukasey decided he’d rather play whack-a-mole with financial crime than pursuing it at a national level.

For some reason, Michael Mukasey doesn’t want to investigate and prosecute mortgage fraud using a comprehensive, centralized approach.

Attorney General Michael B. Mukasey rejected on Thursday the idea of creating a national task force to combat the country’s mortgage fraud crisis, calling the problem a localized one akin to “white-collar street crimes.”

Mr. Mukasey made clear that he saw the mortgage fraud problem at the root of the nation’s housing crisis as a serious one. But he said he was confident that the Justice Department’s current approach — using local prosecutors’ offices around the country to oversee separate F.B.I. investigations — was adequate.

Eric Holder doesn’t think that was such a good idea (via TPMM). 

Mr. Holder said the Justice Department is planning a new initiative to bring together federal and state prosecutors in combating financial fraud and white-collar crime.

"We will be working with them to come up with a way to deal with these fraud problems and white-collar problems. The federal government can’t do this alone," Mr. Holder said.


One change is likely to involve a task force on financial crime, akin to one that was organized during the Bush administration following the collapse of Enron Corp.

Mr. Holder’s predecessor in the Bush administration, Michael Mukasey, was disinclined generally to set up task forces because he thought they could be inefficient. He studied the idea of a national task force to focus on fraud and the mortgage crisis but decided against it because he said the crisis differed in various parts of the country.

Mr. Holder disagreed on the effectiveness of a national strategy and said an official announcement would be coming soon. "Based on my experience, I know that task forces work," he said, adding that state prosecutors have expertise on financial fraud that could benefit the federal government.

Gosh. What a novel idea. Investigating the "too big to fail" criminals at a level that’s almost as big as the crime.

And perhaps someday we’ll learn why Mukasey was so disinclined to focus federal attention on the shitpile just as it was about to collapse.

Durbin and Whitehouse: Why Did Mukasey Give OLC a Peek at the Yoo/Bradbury Results?

Dick Durbin and Sheldon Whitehouse want to know why the Office of Professional Responsibility gave OLC a chance to review their report on John Yoo’s and Steven Bradbury’s torture memos.

Just last week, they got a response from DOJ on the process the OPR review has gone through, revealing that the report already integrated comments from Mukasey and "OLC" (whose acting head was Steven Bradbury), and was giving Bradbury, Yoo, and Jay Bybee an opportunity to comment, as well. It will take "substantial time" before this review process is done, DOJ says.

OPR has completed its investigation of this matter and in late December 2008, provided the draft report to Attorney General Mukasey and invited comment. Attorney General Mukasey shared the report with Deputy Attorney General Filip and OLC. Thereafter, Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments, and OPR revised the draft report to the extent it deemed appropriate based on those comments.

In addition, during the course of the investigation, counsel for the former Department attorneys asked OPR for an opportunity to review and comment on the report prior to any disclosure of its results to Congress or the public. Attorney General Mukasey and Deputy Attorney General Filip likewise requested that OPR provide the former Department attorneys with such an opportunity. For these reasons, OPR is now in the process of sharing the revised draft report with them. When the review and comment period is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the Department will determine what disclosures should be made. Due to the complexity and classification level of the draft report, the review process described above likely will require substantial time and effort.

Which of course raises a whole slew of questions, some of which Durbin and Whitehouse have now posed to DOJ. Such as whether OLC’s review of the document influenced Steven Bradbury’s January 15 OLC memo withdrawing certain earlier opinions. 

Your letter does not indicate whether Steven Bradbury was recused from reviewing and providing comments on the draft report.  Mr. Bradbury, who was then the Principal Deputy Assistant Attorney General of OLC, is reportedly a subject of the OPR investigation. Read more

OLC Restores 4th Amendment after Hounding from Congress


In her post on Steven Bradbury’s October 6, 2008 OLC opinion withdrawing the October 23, 2001 OLC memo eviscerating the 4th Amendment, Christy asks some important questions.

In fact, it reads like a thinly veiled, but ever-so-politely worded, call of “bullshit.”

It’s laugh out loud funny.  Or would be if it weren’t for the fact that it took more than 7 years to issue it — during which time the government was still operating under the craptastic legal assumptions, one presumes.

Why was this kept hidden?

I’ve got a pretty good answer why Bradbury’s opinion was kept hidden.

In the exchange between DiFI and Michael Mukasey above–which took place on April 10, 2008–Mukasey equivocated, badly, about whether or not that October 23, 2001 opinion remained in force.

DiFi: Is this memo in force? That the Fourth Amendment does not apply in domestic military.

Mukasey: The principle that the Fourth Amendment does not apply in wartime is not in force.

DiFi: No. The principle that I asked you about? Does it apply to domestic military operations? Is the Fourth Amendment, today, applicable to domestic military operations?

Mukasey: [unclear] don’t know of domestic military operations being carried out today.

DiFi: I’m asking you a question. That’s not the answer. The question is, does it apply?

Mukasey: I’m unaware of any domestic military operations being carried out today.

[back and forth]

Mukasey:  The Fourth Amendment applies across the board regardless of whether we’re in wartime or in peacetime.


Mukasey: In my understanding it is not operative.

Well, it turns out it took another six months for Bradbury to withdraw the opinion.

Given Mukasey’s equivocations, I’d say there’s a very good reason they hid the memo (and, by association, the evidence that it had not been withdrawn when Mukasey equivocated wildly). I’d also suggest that, Mukasey knew well of a domestic military operation–DOD’s NSA wiretapping Americans domestically–that was ongoing at the time. And which, until the passage of the FISA Amendment Act, may well have been relying on Yoo’s October 2001 memo for legal cover.

The Push to Publish the OPR Report

I was wondering when this would come out. After all, one of the advantages of having an easily-used journalist like Mikey Isikoff around is that when someone needs to leak something to increase political pressure, they know whom to go to.

So, those who want to make sure the OPR report damning John Yoo and Steven Bradbury is published in its current "very harsh" form will go to Mikey to make sure the report’s conclusions become public.

According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

But then–Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to the draft, according to the sources. Filip wanted the report to include responses from all three principals, said one of the sources, a former top Bush administration lawyer. (Mukasey could not be reached; his former chief of staff did not respond to requests for comment. Filip also did not return a phone message.) OPR is now seeking to include the responses before a final version is presented to Attorney General Eric Holder Jr. "The matter is under review," said Justice spokesman Matthew Miller.


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.

And in addition to those pushing to make the report public, there are those–speaking in a voice that sounds remarkably like certain lawyers associated with Dick Cheney–attacking the legitimacy of the report.

"OPR is not competent to judge [the opinions by Justice attorneys]. They’re not constitutional scholars," said the former Bush lawyer. 

David! How’ve you been now that you’ve been separated from your man-sized safe?

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Obama's Executive Privilege Order and the House Judiciary Committee Lawsuit

I’ve seen a lot of celebratory posts about the effect of Obama’s Executive Order on Presidential Documents, but I fear it distracts attention from an equally important focus: the House Judiciary Committee lawsuit.

The posts all focus on Obama’s order that Executive Privilege claims must be reviewed by the incumbent President, not the former President.

(a)  Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.  Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege.

(b)  In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order.  The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations.  Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel).  The copy of the notice for the former President shall be delivered to the former President or his designated representative.

So, commentators say, this means we’ll be able to get a bunch of documents–the US Attorney scandal documents and the Plame documents are the most frequently mentioned–that Bush has been withholding.

But of course, particularly with respect to those documents, there’s already a pending case–the HJC case that was reinstated under the House rules (and now includes Turdblossom for the USA purge documents and Mukasey for Siegelman documents and Plame documents).

Now, I’ve asked some folks on the committee and they’re sure Obama’s EO won’t moot their suit. And, presuming AG Holder approves it, Obama’s administration can presumably release the documents right to the Committees Read more

The Government Sez: We Don’t Have a Database of All Your Communication

I’m going to try to do a series of posts on the FISA Appeals Court ruling before football starts tomorrow. In this post, I just want to point to a passage that deserves more scrutiny:

The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(26)

To translate, if the government collects information from a US citizen (here or abroad), a legal permanent US resident, a predominantly US organization, or a US corporation in the course of collecting information on someone it is specifically targeting, it it claims it does not keep that in a database (I’ll come back and parse this in a second). In other words, if the government has a tap on your local falafel joint because suspected terrorists live off their falafels, and you happen to call in a take out order, it does not that have in a database.

There are reasons to doubt this claim. First of all, because we know of huge new data storage facilities, and they’ve got to be filling those facilities with something. Of course, they might just store US person communications on servers, but not in a formal database, and thereby be able to claim they’ve not got your falafel order in a database proper.

But we also know that when Russ Feingold proposed several measures to protect this kind of incidental data during last year’s FISA debate, Mike McConnell and Michael Mukasey started issuing veto threats. For example, when Feingold proposed adding this amendment to the new FISA changes,

At such time as the Government can reasonably determine that a communication acquired under this title (including a communication acquired under subsection (a)(2)) is to or from a person reasonably believed to be located in the United States, such communication shall be segregated or specifically designated and no person shall access such a communication, except in accordance with title I or this section.

Mukasey and McConnell threw out a bunch of vague alarmist objections.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence Read more

The Little Bomblet for Turdblossom in the New Rules

Kagro has been tracking the passage of the new House rules package over at his new digs.

As he described earlier, John Conyers stuck something in the new rules that will allow the House Judiciary Committee to continue its lawsuit against Harriet Miers and Bolten to get their testimony in the US Attorney scandal.

One nice goody buried in the new House Rules package: the House will authorize the Judiciary Committee to continue its lawsuit seeking to enforce its subpoenas and contempt of Congress citations against Bush White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers.

Technically, Miers and Bolten were in contempt of the 110th Congress. But with its adjournment, the 110th Congress no longer exists, so there’s nothing to be in contempt of, nor any plaintiff in the lawsuit. The courts had indicated that this might give them cause to moot the whole case and drop it. But the Rules package specifically authorizes the Judiciary Committee in the new 111th Congress to continue the suit. And we had earlier word that the 111th was considering reissuing those subpoenas.

And, as Kagro now points out (now that the rules have passed), there’s a little bomblet in there specific to Rove.

There’s one more juicy nugget in the rules package that just passed. Regarding the Judiciary Committe’s power to continue its suit against Miers and Bolten.

From Majority Leader Steny Hoyer’s fact sheet (PDF):

In addition, it authorizes the Judiciary Committee and General Counsel to add as a party to the lawsuit any individual subpoenaed by the Committee in the 110th Congress who failed to comply.

Who else was subpoenaed by the Judiciary Committee in the 110th Congress and failed to comply?

Karl Rove.

And Michael Mukasey.

Nice going, Chairman Conyers and Speaker Pelosi.

In other words, Rove–and Michael Mukasey, who refused to turn over documents particularly relating to the Siegelman prosecution–is about to get added to HJC’s lawsuit forcing him to testify before HJC in the 111th Congress.

Oops! They Pissed Off Judge Walker Before He Finalizes Immunity

I just finished reading Vaughn Walker’s opinion explaining that the government will have to give him the document that–the lawyers for al Haramain claim–shows they were wiretapped without a warrant under Bush’s illegal wiretap program, so he can determine whether it really does show what the lawyers claim it shows. If it does, you see, then someone will finally be able to sue Bush and his cronies for violating FISA.

If you don’t have time to read the entire opinion, I recommend you pick it up around page 16–where Walker includes a short summary of how the al Haramain lawyers proved they were surveilled under the illegal program–and then go to page 21–where Walker starts getting really cranky with the government. 

Defendants simply continue to insist that § 1806(f) discovery may not be used to litigate the issue of standing; rather, they argue, plaintiffs have failed to establish their “Article III standing” and their case must now be dismissed. But defendants’ contention that plaintiffs must prove more than they have in order to avail themselves of section 1806(f) conflicts with the express primary purpose of in camera review under § 1806(f): “to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” § 1806(f).

In reply, plaintiffs call attention to the circular nature of the government’s position on their motion:

Do defendants mean to assert their theory of unfettered presidential power over matters of national security —— the very theory plaintiffs seek to challenge in this case —— as a basis for disregarding this court’s FISA preemption ruling and defying the current access proceedings under section 1806(f)? So it seems.

So it seems to the court also.

It appears from defendants’ response to plaintiffs’ motion that defendants believe they can prevent the court from taking any action under 1806(f) by simply declining to act.

But the statute is more logically susceptible to another, plainer reading: the occurrence of the action by the Attorney General described in the clause beginning with “if” makes mandatory on the district court (as signaled by the verb “shall”) the in camera/ex parte review provided for in the rest of the sentence. The non-occurrence of the Attorney General’s action does not necessarily stop the process in its tracks as defendants seem to contend. Read more