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Did CIA Lie to DOJ about When They Tortured Hassan Ghul?

As I noted in January, comments Mark Udall made in the course of confirming Stephen Preston to be DOD General Counsel make it clear that CIA’s lies about a detainee generally believed to be Hassan Ghul are one of the new revelations in the Torture Report. For a number of reasons, I believe one thing CIA lied to DOJ about is when they tortured Ghul.

As I’ll show in a follow-up post, the question of when they tortured Hassan Ghul may reflect not just on the torture program, but also on the dragnet.

The public record claiming Ghul was tortured in July and August, 2004

We can lay out a rough timeline of the torture of the detainee believed to be Ghul based on several data points. First, Jay Bybee’s response to the Office of Professional Responsibility report (see page 22) makes it clear a July 2, 2004 Principals Committee meeting pertained to detainee “Janat Gul,” custody of whom CIA had reportedly (see PDF 59) just obtained (Bybee would not have been at the meeting — he had become a Circuit Court Judge over a year earlier — so he must be relying on what the OPR report says).

In addition, we can trace back the documents leading up to a reference to “Gul” in the May 30, 2005 CAT memo (see page 7). That reference describes an August 25, 2004 letter that asked for permission to use — among other things — water dousing and abdominal slaps. The approval to that request, dated August 26, 2004, cites the August 25 letter, an August 2, 2004 letter from John Rizzo, and a July 30, 2004 letter. An August 6, 2004 letter approving waterboarding also cites the August 2 Rizzo letter.

In the August 10, 2005 Techniques memo, some of these same documents are cited; the memo also reveals its subject was obese and had heart problems. Although the Techniques memo approved waterbaording, it said it was not used with the subject of the memo because of a medical contraindication.

All of this would seem to give the following chronology for Hassan Ghul’s torture (assuming he is the detainee referred to as Gul):

July 2, 2004: CIA obtains custody and in a Principals Committee meeting discusses his torture

July 7, 2004: Goldsmith provides guidance on acceptable techniques

July 22, 2004 (5 days after Goldsmith’s departure): John Ashcroft approves the use of all Bybee Memo techniques, except for waterboarding

July 30, 2004: Letter to Daniel Levin including description of torture techniques

August 1, 2004: Government raises threat level in advance of election year threats, announces surveillance of financial institutions, though reports are years old

August 2, 2004: Letter from John Rizzo to Levin, including details on when the CIA would use waterboarding and a medical and psychological assessment of Ghul

August 6, 2004: Daniel Levin advises that subject to reservations, CIA’s use of waterboarding not illegal

August 19, 2004: Letter to Daniel Levin detailing new limits on waterboarding

August 25, 2004: In letter to Daniel Levin asking to water douse Ghul, CIA claims the CIA believed (when it got custody) Ghul had actionable intelligence on “pre-election” threat to United States, had extensive connections to various al Qaeda leaders, members of the Taliban, and Zarqawi, and had tried to set up a meeting “at which elements of the pre-election threat were discussed”

August 26, 2004: Levin approves four new techniques with Ghul, including water dousing

This chronology suggests DOJ repeatedly told CIA waterboarding was not permissible in the weeks after Jack Goldsmith withdrew the Bybee Memo, but after the National Security establishment raised the threat level on August 1 because of years-old surveillance in the US, DOJ relented and approved waterboarding with Ghul. Subsequently, it appears, CIA decided Ghul was not healthy enough — either because of his heart condition or his obesity — to undergo waterboarding, so they instead water doused him in near-freezing temperatures.

The problem with this chronology

There is just one problem with that chronology: the CAT memo discusses two detainees (see page 6). The description of the first detainee — someone involved in the alleged 2004 pre-election threat — mentions the August 25 letter which elsewhere in the memo ties to Gul by name.

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Inadequate Briefing on the Drone Program Shows Congress Hasn’t Fixed the Gloves Come Off MON

I need to finish my series (post 1, post 2, post 3, post 4, post 5, post 6) on the Obama Administration’s efforts to hide what I’ve dubbed the “Gloves Come Off” Memorandum of Notification. As I described, the MON purportedly gave CIA authority to do a whole slew of things, but left it up to the CIA to decide how to implement the programs Bush authorized. And rather than giving the Intelligence Committees written notification of the details of the programs, CIA instead gave just the Gang of Four deceptive briefings on the programs, which not only gave a misleading sense of the programs, but also prevented Congress from being able to limit the programs by refusing to fund the activities.

Yet, as MadDog and I were discussing in the comments to this post, these aspects of the MON set up did not entirely elude the attention of Congressional overseers. In fact, the very first Democrat to be briefed that torture had been used (remember, Pelosi got briefed it might be used prospectively) asked questions that went to the heart of the problem with the structure of the MON.

The CIA won’t tell Jane Harman whether the President approved torture from a policy standpoint

Jane Harman was first briefed on the torture program, with Porter Goss, on February 5, 2003. We don’t actually know what transpired in that briefing because CIA never finalized a formal record of the briefing. But five days after the briefing, Harman wrote a letter to CIA General Counsel Scott Muller. In addition to using a word for the torture program CIA has redacted and objecting to the destruction of the torture tapes, Harman asked questions that should have elicited a response revealing the Gloves Come Off MON was what authorized the torture program.

It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions.  I would like to know what kind of policy review took place and what questions were examined.  In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States.  Have enhanced techniques been authorized and approved by the President?

The whole point of a MON, after all, was to get the President on the record asserting that the programs authorized by it are “necessary to support identifiable foreign policy objectives of the United States and [are] important to the national security of the United States.” Here, Harman was asking whether the President was part of a policy review on torture.

Just over a week after Harman sent this letter, the CIA met with the White House to decide how to respond to Harman’s letter.

Now, granted, Harman’s question did not explicitly ask about a MON. But the CIA did not even answer the question she did ask. Muller basically told her policy had “been addressed within the Executive Branch” without saying anything about Bush’s role in it.

While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

Kudos to Harman for actually asking questions. But at this point, she should have known that there was something funky about the legally required MON for the torture program.

Two years later, she was still trying to get answers about the MON. In her third briefing on torture (PDF 29-31; see also this post)–on July 13, 2004, which was almost 3 weeks after Harman should have received the Inspector General Report–Muller first claimed that the legal foundation for the torture program were the Bybee Memos (he provided this explanation in the context of explaining considerations of whether the program complied with Article 16 of the Convention against Torture).

The General Counsel said that the effort was working effectively under the DOJ 1 August 2002 memo which was the legal foundation for the debriefings and interrogations.

But later in the briefing, Harman appears to have noted that the MON didn’t authorize torture, it only authorized capture and detention.

Rep. Harman noted that the [redaction] did not specify interrogations and only authorized capture and detention. Read more

Torture and Truth

Yesterday, I posted on a Harvard study showing that the press, after an established tradition of referring to waterboarding as torture, stopped doing so once it became clear the US engaged in the practice. Our press, in other words, refused to tell what they had previously presented as “the truth” (that is, that waterboarding was unquestionably torture) when it became politically contentious to do so.

Now I want to focus on one detail of the documents Craig Murray released yesterday in anticipation of the British inquiry into whether it was complicit with torture. The Brits are debating among themselves whether the question will be, “Did the UK order up torture?” or “Did the UK knowingly use information gathered using torture?” (Rather, the powers that be are trying hard to limit the inquiry to the former question.) So Murray posted a series of British Foreign Office communication set off when he asked both whether it was legal to receive information known to have been collected using torture, and what civil servants and Ministers thought about receiving information gathered using torture.

I would be grateful for the opinion of Sir Michael Wood on the legality in both international and UK domestic law of receiving material there are reasonable grounds to suspect was obtained under torture, and the position of both Ministers and civil servants in this regard.

That is, is it legal and is it the accepted practice of the government to accept information gathered using torture (ironically, at almost exactly the same moment, Jane Harman, having been assured that torture was legal by CIA General Counsel Scott Muller, was asking him whether it was the formal Bush policy).

The answers to those questions, as you can see by reading the thread of communication, were “yes” and “yes.” It’s the latter “yes” that the Brits don’t want to admit publicly in their inquiry.

That’s all politics. But what I’m most interested in is a paragraph Linda Duffield, the Director, Wider Europe, wrote on March 10, 2003, memorializing a meeting between her, Murray, and two others. In it, she describes explaining to Murray that she appreciated his concern about information collected using torture, but that the “moral issues” raised by it had to be weighed against other moral concerns. And the competing “moral” issue–as she lays out–is the necessity to “piec[e] together intelligence material from different sources in the global fight against terrorism.”

I said that he was right to raise with you and Ministers (Jack Straw) his concerns about important legal and moral issues. We took these very seriously and gave a great deal of thought to such issues ourselves. There were difficult ethical and moral issues involved and at times difficult judgements [sic] had to be made weighing one clutch of “moral issues” against another. It was not always easy for people in post (embassies) to see and appreciate the broader picture, eg piecing together intelligence material from different sources in the global fight against terrorism. But that did not mean we took their concerns any less lightly. [my emphasis]

Duffield is claiming to acknowledge the moral problems of torture, but suggests that the “moral” (and ethical) necessity to piece together intelligence on terrorism–not to keep the country safe, but to piece together intelligence–balances out those moral problems.

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2005 Story: Chertoff Opposed Technique Threatening Imminent Death

I’ve been poking DOJ’s version of the events leading up to the Bybee Memo and hope to elaborate on that at a further time. But for now, I want to point to this 2005 article, apparently attempting to scuttle Michael Chertoff’s nomination to be Secretary of Homeland Security by raising his role in approving torture (there are a couple of versions of this article, so if you’re having problems seeing what I’m looking at try this post). The article clearly states that Chertoff opposed the approval of a technique that involved the threat of immediate death.

But in other instances Mr. Chertoff opposed some aggressive procedures outright, the officials said. At one point, they said, he raised serious objections to methods that he concluded would clearly violate the torture law. While the details remain classified, one method that he opposed appeared to violate a ban in the law against using a “threat of imminent death.” [my emphasis]

We now know, of course, that CIA was trying to get mock burial approved.

This revelation is interesting because it confirms what the documentary evidence suggests: that Chertoff was one, if not the major, source of trouble for David Addington’s plan to green light torture. And given the story’s report that Chertoff approved waterboarding even while he opposed what was probably mock burial, it suggests that the problem was not necessarily Chertoff’s squeamishness, but rather Ali Soufan’s reaction, when the torturers first threatened to use mock burial in May 2002, that it was torture. Furthermore, all of this accords with the work I’ve done on the role of the July 13 memo, which shows that CIA had an “issue arise” in response to which they got John Yoo write a memo excusing things like death threats (but also disruption of the senses) by invoking expert advice.

The story is interesting for other reasons, including its fairly early reference to SERE’s role in the torture techniques.

Many of the interrogation techniques in the C.I.A.’s list were adopted from the Air Force’s Survival, Evasion, Rescue, and Escape training program.

But for the moment, I’m just noting it because it does seem to confirm the narrative we’re seeing in the documentary evidence.

How CIA Avoided Negligent Homicide Charges in the Salt Pit Killing

Since the AP story on the Salt Pit death, reporters have focused a lot of attention to a particular footnote in Jay Bybee’s second response to the OPR Report and what it claims about intent (and, to a lesser degree, what it says about Jay Bybee’s fitness to remain on the 9th Circuit). In it, Jay Bybee references a memo CIA’s Counterterrorism Center wrote in response to Gul Rahman’s death at the Salt Pit; the memo argued that the CIA officer in charge should not be prosecuted under the torture statute because he did not have the specific intent to make Rahman suffer severe pain when he doused him with water and left him exposed in freezing temperatures.

Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.

As Scott Horton noted the other day, analysis of the torture statute should not have been the only thing in the declination memo. Prosecutors should have analyzed whether or not Rahman’s killing constituted negligent homicide, among other things.

Note that the declination, issued by politically loyal U.S. attorneys who were subsequently rewarded with high postings at Main Justice, carefully follows the rationalizations that Yoo and Bybee advanced for not prosecuting deaths or serious physical harm resulting from state-sanctioned torture. But the obvious problem, as John Sifton notes at Slate, is that torture and homicide are hardly the only charges that could be brought in such a circumstance. Negligent homicide or milder abuse charges would have obviously been available, and a survey of comparable cases in the setting of state and local prisoners suggests that they are far more common. By looking only at homicide and torture, the prosecutors were paving the way for a decision not to charge.

But the OPR Report and the Legal Principles/Bullet Points documents it describes may explain why this didn’t happen. The Legal Principles/Bullet Points document shows that CIA claimed–possibly, with the tacit approval of the Principals Committee–that the only two criminal statutes that could be applied to its interrogation program were the Torture Statute and the War Crimes Statute.

As a threshold matter, Horton appears to be misstating what the declination memo described in the footnote is and–more importantly–who wrote it. “Politically loyal US Attorneys” did not write the declination described here. Some lawyer at CIA’s CTC wrote it. That’s because, as the OPR Report explains in the section preceding the entirely redacted passage that discusses this letter (the declination letter appears on PDF 98, which appears in the same section as the following quotes from pages PDF 96 and 97), DOJ told CIA to go collect facts about the abuses they reported in January 2003 (which include the Salt Pit killing and threats of death used with Rahim al-Nashiri) themselves.

According to a CIA MFR drafted by John Rizzo on January 24,2003, Scott Muller (then CIA General Counsel), Rizzo and [redacted] met with Michael Chertoff Alice Fisher, John Yoo, and [redacted–probably Jennifer Koester] to discuss the incidents at [redacted]. According to Rizzo, he told Chertoff before the meeting that he needed to discuss “a recent incident where CIA personnel apparently employed unauthorized interrogation techniques on a detainee.”

[snip]

Chertoff reportedly commented that the CIA was correct to advise them because the use of a weapon to frighten a detainee could have violated the law. He stated that the Department would let CIA OIG develop the facts and that DOJ would determine what action to take when the facts were known. According to Rizzo, “Chertoff expressed no interest or intention to pursue the matter of the [redacted].

On January 28, 2003, CIA Inspector General John Helgerson called Yoo and told him that the CIA OIG was looking into the [redacted] matter. According to Helgerson’s email message to Rizzo, Yoo “specifically said they felt they do not need to be involved until after the OIG report is completed.” Rizzo responded to Helgerson: “Based on what Chertoff told us when we gave him the heads up on this last week, the Criminal Division’s decision on whether or not some criminal law was violated here will be predicated on the facts that you gather and present to them.”

Alerted that, in the course of interrogating detainees, CIA had killed one and threatened to kill another detainee, DOJ’s first response (at least according to two different CIA versions of what happened) was to tell CIA to go collect information on the events themselves. Only after CIA finished investigating and presented the facts of the case would DOJ weigh in on whether a crime had been committed.

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Yoo’s Supervisors Didn’t Know about the July 13, 2002 Fax

As I pointed out in my last post, when Jonathan Fredman wrote the Abu Zubaydah torture team in Thailand to tell them they had gotten the green light to torture, he cited not the Bybee One memo which had just been signed, but a July 13, 2002 Yoo fax, for his discussion of intent.

This is significant not just because the language on intent in the fax lacks some of the caveats in the Bybee One Memo. But also because it appears Yoo was freelancing when he wrote the July 13 fax.

To be sure, the evidence that Yoo was freelancing when he wrote this fax is not as clear cut as it was for the Legal Principles/Bullet Point documents. Unlike the Legal Principles documents, this fax is on OLC stationary and signed by Yoo, making it appear, at least, like a formal OLC opinion.

But Yoo’s superiors at DOJ claim to have known nothing about it.

In response to July 2008 questions from the Senate Armed Services Committee, Jay Bybee said in October 2008 that he did not recall any written guidance to CIA before the August 1 memo.

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,”

Similarly, when asked in July 2008 whether anyone from his department had authorized torture before August 1, 2002, John Ashcroft claimed he “didn’t know.”

Mr. NADLER. Thank you, Mr. Chairman. Attorney General Ashcroft, in your testimony you mentioned Abu Zubaydah, who was captured in March 2002. The Inspector General report on the FBI’s role in interrogation makes clear that he was interrogated beginning in March of that year. The Yoo-Bybee legal memo was not issued until August 2002. So was the interrogation of Abu Zubaydah before August 2002 done without DOJ legal approval?

Mr. ASHCROFT. I don’t know.

Mr. NADLER. Well, did you offer legal approval of interrogation methods used at that time?

Mr. ASHCROFT. At what time, sir?

Mr. NADLER. Prior to August of 2002, March 2002.

Mr. ASHCROFT. I have no recollection of doing that at all.

Mr. NADLER. And you don’t know if anyone else from the Department of Justice did?

Mr. ASHCROFT. I don’t know.

[snip]

Mr. WEXLER. So from March to August, did you offer any legal approval of the interrogation methods used at that time?

Mr. ASHCROFT. I don’t have any recollection of doing so.

Mr. WEXLER. And did anyone else at the Department of Justice?

Mr. ASHCROFT. I don’t know. I don’t know.

And there is evidence that Jack Goldsmith didn’t learn about it until just before he left DOJ.

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The Request for Reaffirmation of Torture

This is going to be another weedy post…

I wanted to put two totally bureaucratic pages (PDF 23-24) from the recent FOIA dump into the context of the other known documents in the chronology. The first page is an “Executive Correspondence Routing Sheet,” sent from CIA General Counsel Scott Muller around top CIA management for approval. It reads:

This memo follows General Counsel discussion with the DCI and agreement on the need to seek reaffirmation from the NSC.

And the memo in question (the following page) appears to be a very short memo with the subject, “Review of CIA Interrogation Program,” from John Rizzo circulated to the lawyers involved with the torture program and the top CIA executives on the Executive Correspondence Routing Sheet. The Rizzo memo is dated May 24, 2004; the last signature–that of George Tenet–is dated June 4, 2004.

The routing sheet is interesting not just because Tenet signed it the day after he resigned.

It also shows a glimpse of the bridge by which CIA responded to the CIA IG Report but also (probably) Jack Goldsmith’s unwillingness to reaffirm opinions that OLC had never made by asking the White House for some kind of written re-endorsement of the torture program.

As I’ve shown here and here, when the CIA Inspector General began its review of the torture program in response to the Salt Pit death and abuses of al-Nashiri, CIA and Jennifer Koester and John Yoo (though he denies involvement) worked back channel to develop a set of “Legal Principles” (elsewhere called “Bullet Points”) that would expand the legal authorization DOJ had given CIA’s torture program in such a way as to legally excuse the crimes the IG was inspecting. Significantly, the Legal Principles document expanded the already farcical analysis of Article 16 of the Convention Against Torture that Yoo had done in the Bybee One memo.

CIA twice tried to present these Legal Principles to OLC as a fait accompli, first in June 2003, when Patrick Philbin took over many of John Yoo’s duties, and then again in March 2004, in conjunction with the finalization of the IG Report and at a time when Goldsmith headed the OLC. Both Philbin and Goldsmith refused to accept the Legal Principles as OLC sanctioned documents.

Now, significantly, the March 2, 2004 set of Legal Principles was itself a request for “reaffirmation” of the torture program’s legality. Scott Muller emphasized CIA needed that reauthorization, among other reasons, because they had incorporated new torture techniques based on the OLC “guidance.”

For example, using the applicable law and relying on OLC’s guidance, we concluded that the abdominal slap previously discussed with OLC (and mentioned in the June 2003 summary points) is a permissible interrogation technique.

Of note, Goldsmith appears to have taken special note of the description of water PFT, which (Muller’s note said explicitly) was “intended to … humiliate” detainees. Given that the IG Report concluded that the torture program probably violated Article 16, this language seemed to flout the prohibitions against cruel, inhuman, and degrading treatment.

Between March 2 and May 24 (when Rizzo wrote his memo), Goldsmith did not reauthorize the Legal Principles. Nevertheless, CIA incorporated the Legal Principles into the final draft of the IG Report. Goldsmith got a copy of that document some time before May 25 and presumably spoke to Muller about the inclusion of the Legal Principles in it, because on that day, he wrote CIA’s IG noting that he had received it and asking for time to review the depiction of OLC’s legal advice in the IG Report before it got sent to Congress.

In other words, Goldsmith’s continued objection to the inclusion of the Legal Principles in the IG Report is probably what prompted John Rizzo to send out a memo referencing the IG Report (which the CIA called the “Review of the CIA Interrogation Program,” the subject of his memo) that appears to have recommended asking NSC for reaffirmation of the torture program.

So faced with Goldsmith’s refusal to reaffirm something OLC had never affirmed in the first place, CIA decided to go to the White House and get them to approve of the program in writing. Read more

Were the Torturers Bypassing OLC in July 2004?

Update, March 13, 2015: The Torture Report clarify this. First, CIA had not yet rendered the detainee, who was indeed Janat Gul. At the meeting, CIA did ask for a memo, as well as permission to torture Gul because (we now know) a fabricator had claimed he was involved in an election season plot. We’ve also learned that regardless of what Comey and Goldsmith approved, the CIA used its torture of Gul, after Goldsmith left, to expand the prior authorizations CIA had obtained to incorporate what they had actually used.
Jay Bybee thinks it’s really damning that Jim Comey attended a July 2, 2004 Principals meeting at which the torture of one particular detainee (he says it was Janat Gul, though there are reasons to doubt it) was discussed.

Comey joined Ashcroft at a NSC Principals Meeting on July 2, 2004 to discuss the possible interrogation of CIA detainee Janat Gul. Report at 123. Ashcroft and Comey conferred with Goldsmith after the meeting, leading to Goldsmith’s letter to Muller approving all of the techniques described in the Classified Bybee Memo except for the waterboard. Id (PDF 26-27)

I’m not so sure. In fact, it appears that the key approvals happened after Comey had left that meeting–and Goldsmith’s “approval” appears to have been an attempt to put some limits on the CIA after the White House had approved the techniques.

Let’s review everything that led up to that meeting.

In April, per the OPR Report, Jack Goldsmith and Steven Bradbury began work on a memo to replace the March 2003 Yoo memo. Meanwhile, in response to the CIA Inspector General Report’s description of torture as it was being administered, Goldsmith advised CIA General Counsel Scott Muller on May 27 not to use waterboarding (and to strictly follow the descriptions of the other nine authorized techniques carefully). On June 7 and 8 news of the torture memos appeared in the WSJ and WaPo. After learning in a phone call with John Yoo about some of the back-channel advice CIA and DOD had gotten, Goldsmith told Muller on June 10 that CIA was going to have to put things in writing if it wanted further OLC opinions on torture (Goldsmith appears to have kept the proof that he faxed it to CIA). On June 16, Goldsmith told Ashcroft he would withdraw the Bybee One memo and then resign. On June 22, in an off the record briefing, Comey, Goldsmith, and Philbin renounced the Bybee One memo. And on June 28, the Supreme Court ruled against the Administration in the Hamdi case.

The entire torture program, the torture architects surely believed, was at risk. In his book, Jack Goldsmith reports that the CIA and White House accused him of “buckl[ing]” in the wake of the Abu Ghraib scandal. And Addington sniped that Goldsmith should give him a list of any OLC opinions Goldsmith still stood by.

In this context on July 2–ten days after Goldsmith publicly withdrew the Bybee One memo and four days after the Hamdi decision–the CIA asked to torture again.

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The Legal Principles Document and OLC’s Leaky SCIF

Sorry to get so deep in the weeds on the missing OLC documents, but I wanted to show why this matters, using the example of the Legal Principles (AKA the Bullet Points) documents. As I’ll show below, one of the most sensitive documents involved in the controversy between CIA and OLC on the Legal Principles is one of the documents over which there are discrepancies between the  Vaughn Indices and the actual document.

I explained the Legal Principles document in detail in this post, but here’s the short version. When CIA started the Inspector General investigation, it had a meeting with DOJ people including Michael Chertoff and then a phone conversation with John Yoo. Both times, DOJ told CIA that it (DOJ) would hold off on any criminal investigations or prosecutions until CIA’s IG first collected information and then presented that along with the legal guidelines CIA had been working under. DOJ basically told CIA, “You tell us if you broke the law.” So CIA got together with John Yoo (though he denies being involved) and Jennifer Koester, who were both apparently free-lancing with no official OLC involvement, and developed a document–alternately called the Legal Principles or the Bullet Points document. The document interpreted the law and previously OLC opinions as the CIA would like them to be to make sure as much of the torture as possible was “legal.”

When Koester and Yoo moved on in May 2003, CIA tried to dump the document as a finished fait accompli back onto OLC. Even though Patrick Philbin, picking up Yoo’s duties, immediately refused to recognize the document as OLC work product, CIA kept insisting it counted as an OLC document. They did so in a high level meeting at the White House in June and then ultimately made it into a slide for a meeting with the NSC Principals on July 29, 2003, at which the Principals bought off on the torture as it had been applied. Then, CIA submitted the document with a late draft of the IG Report in March 2004, which (Jack Goldsmith claims, though the CIA claims differently) was the first time Goldsmith saw the Legal Principles. A bit of a spat broke out which not only prevented CIA and OLC from submitting joint comments on the IG Report (and, presumably, the legality of the acts described therein) as they had intended to do, but also in Goldsmith writing grumpy follow-up letters to CIA on it. And all of this was right before Goldsmith withdrew the Bybee One memo.

As you can see, the Legal Principles document were not only a source of tension between CIA and OLC. But its lies at the core of interpretations of just how illegal the CIA program was.

Which is why I find it relevant that the various iterations of the Legal Principles document are some of the documents that seem to have been affected by OLC’s leaky SCIF.

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CIA Met with White House about How to Respond to Jane Harman’s Torture Warnings

After being briefed on February 5, 2003 that the CIA had used waterboarding and intended to destroy tapes depicting that torture, Jane Harman wrote CIA General Counsel Scott Muller a letter raising concerns. Harman warned CIA they should not destroy the torture tapes, whether or not they constituted an official record.

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

And she asked directly whether President Bush had bought off on torture as a policy.

I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?

In his response to her, Muller basically ignored her warning about the torture tapes. And he gave her a very indirect answer to the question that–under the National Security Act–she should have been able to get a direct answer on, whether or not Bush had signed off on the torture.

While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

As it turns out, Scott Muller was not acting alone when he largely blew off Harman’s concern. Document 28 of the CIA’s Vaughn Index on the torture tape destruction reveals that CIA met with the White House about its response to Harman. (There’s also a one-page draft of the letter to Harman dated February 19.) The Vaughn Index describes the second email, which has the subject “Harmon Letter,” this way:

This is a one-page email, discussing a meeting between CIA and the White House regarding the CIA’s response to a congressional inquiry. The document also includes the draft text of a letter to Congress. This document contains information relating to the sources and methods of the CIA. The document also contains predecisional, deliberative information, CIA attorney work-product, and information provided by a CIA attorney to his client in connection with the provision of legal advice.

Thus, even though Harman’s letter and Muller’s response have been declassified, the CIA is claiming that we can’t know what Muller advised (himself? Bush? Tenet? Precisely who is the CIA General Counsel’s client, here?) about how to respond to Harman’s inquiry.

So we know that the White House weighed in on how to respond to Harman. We’re just not allowed to know how they weighed in.