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Steven Bradbury’s Revenge

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Since I noted in August 2011 that Mitt had named two torture architects to his legal advisory committee (Tim Flanigan and Steve Bradbury), I have had zero doubt that Mitt would embrace torture if he were President. So Charlie Savage’s story–reporting on a September 2011 memo confirming that fact–wasn’t surprising in the least to me. Here’s the key recommendation from the memo:

Governor Romney has consistently supported enhanced interrogation techniques. Governor Romney is also on record as stating that he does not believe it is wise for him, as a presidential candidate, to describe precisely which techniques he would use in interrogating detainees. The combination of these two positions, as well as the information presented above, leads to two principal options in this area for his campaign.

The first option is that Governor Romney could pledge that upon taking office, he will rescind and replace President Obama’ s Executive Order restricting government interrogators to the Army Field Manual. Consistent with the authority reserved for the President under the Military Commissions Act, he could commit his Administration to authorizing (classified) enhanced interrogation techniques against high-value detainees that are safe, legal, and effective in generating intelligence to save American lives. But because President Obama’s release of the OLC memos has reduced the number of available techniques that meet these criteria, Governor Romney should not commit in advance to a timetable for implementing this plan; it may well take time to identify potential techniques and analyze their effectiveness and legality.

[snip]

The Subcommittee recommends the first option. Governor Romney has recognized for years that the sounder policy outcome is the revival of the enhanced interrogation program. And a reluctance by the Governor to expressly endorse such an outcome during the campaign could become a self-fulfilling prophecy once he takes office by signaling to the bureaucracy that this is not a deeply-felt priority. [my emphasis]

Mitt is pro-torture. We knew that, and he hasn’t hidden that fact.

But there are a couple of details about this that are curious.

First, note the language here. The advisors worry that if Mitt doesn’t explicitly endorse getting back into the torture business during the election, he might not do so. They want to force his hand before he’s elected to make sure he’ll carry through.

That is not the language of advisors. It’s the language of puppet-masters (though I’m sure the equivalent memos from inside the Obama camp aren’t much different). That is, the legal advice here is designed not so much to provide the best advice (if it were, then the support used in the memo wouldn’t be such discredited propaganda). Rather, it is to force Mitt’s hand in the eventuality he becomes President.

The other interesting aspect of this are the people. Savage provides this list of the advisors, in addition to Steven Bradbury, in the loop on this memo (he notes that it’s unclear whether they have bought off on the advice).

The list also included Michael Chertoff, the former homeland security secretary; Cully Stimson, the Pentagon’s detainee policy chief; and many other Bush-era executive branch veterans: Bradford Berenson, Elliot S. Berke, Todd F. Braunstein, Gus P. Coldebella, Jimmy Gurule, Richard D. Klingler, Ramon Martinez, Brent J. McIntosh, John C. O’Quinn, John J. Sullivan, Michael Sullivan and Alex Wong. Three others — Lee A. Casey, Maureen E. Mahoney and David B. Rivkin Jr. — served in earlier Republican administrations.

First, note where Savage starts this list: Michael Chertoff, who as Criminal Division head in 2002 refused to give Bush’s torturers an advance declination on prosecution. That refusal ultimately led to the contorted form of the original Yoo memos authorizing torture. If Chertoff supports this policy (Savage’s caveat noted), then it’s a pretty clear indication that Chertoff was cautious in 2002 because people like Ali Soufan were running around saying mock burial was torture, and not because he had any qualms about torture himself. That’s not surprising in the least, but still worth noting.

Maureen Mahoney (who defended Jay Bybee in the OPR investigation) and David Rivkin (who defended Rumsfeld in civil suits for torture) have also backed their earlier legal representation with their own reputation (or lack thereof).

Finally, note who’s not on this list: Tim Flanigan, who with Alberto Gonzales, Dick Cheney, and David Addington, was one of the most central architects of torture and other illegal counterterrorism approaches.

It’s sort of odd that Mitt advisor Tim Flanigan, one of the original architects of torture, wasn’t the one leading this effort last year.

Mitt Romney Names Two Torture Lawyers to “Justice Advisory Committee”

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The headline news about Mitt Romney’s new advisory committee of 63 lawyers is that Robert Bork is co-chairing it.

But even more troubling is that he has named two of the lawyers that okayed torture–Steven Bradbury and Tim Flanigan–to it.

Bradbury, of course, wrote the Combined Torture memo, which found, in part, that waterboarding someone 183 times in a month does not shock the conscience.

He also told DOD it could do whatever it wanted, so long as it called it “Appendix M.” Bradbury failed to mention that memo from Congress, too, when they asked for a list of all the torture memos he had been involved in.

Bradbury would have been investigated over the memos he wrote, had Michael Mukasey not intervened.

Flanigan was one of the three lawyers–along with David Addington and Alberto Gonzales–who told John Yoo to turn the Torture Memo into a “Get Out of Jail Free” card by saying that if the Commander-in-Chief ordered torture, then it couldn’t be prosecuted.

Now, why would Presidential Candidate Mitt Romney appoint two men who called torture legal to his Justice Advisory Committee?

The Context of the July 13 Fax

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As I pointed out in an earlier post, when Counterterrorism Center lawyer Jonathan Fredman sent the torturers in Thailand a green light for torture in August 2002, he relied on language about intent from a July 13, 2002 fax from John Yoo to John Rizzo rather than the finalized August 1 Bybee Memo. In a second post on this, I also showed that both of Yoo’s nominal supervisors–Jay Bybee and John Ashcroft–claim they knew nothing about that fax. In this post, I’m going to show how that fax appears to arise out of DOJ discomfort with CIA’s torture program.

As the timeline below shows, Yoo dated (but did not send) the fax the same day that the numerous parties involved in reviewing the Bybee Memo had an apparently contentious meeting at which they discussed the draft memo as well as the CIA’s torture plan (I’m doing a big update on the Torture Timeline, so some of this is not reflected in the timeline yet).

July 10, 2002: John Yoo tells Jennifer Koester that they will present the Bybee memo to NSC at 10:45 on July 12 (and names the Bybee Memo the “bad things opinion”!).

July 11, 2002: John Yoo and Jennifer Koester have briefing session with Michael Chertoff on Bybee Memo.

July 11, 2002: An OLC paralegal cite-checks the draft, and someone schedules a July 12 meeting with Alberto Gonzales and a July 13 meeting with (effectively) NSC.

July 12, 2002: First draft of Bybee Memo distributed outside of OLC.

July 12, 2002: John Yoo meets with Alberto Gonzales (and either David Addington or Tim Flanigan) on Bybee Memo.

July 13, 2002: John Yoo and Jennifer Koester present July 12 draft to John Rizzo, John Bellinger, Michael Chertoff, Daniel Levin, and Alberto Gonzales. Rizzo provides overview of interrogation plan. Chertoff refuses to give CIA advance declination of prosecution. Levin states that FBI would not participate in any interrogation using torture techniques, nor would it participate in discussions on the subject.

July 13, 2002: Rizzo asks Yoo for letter “setting forth the elements of the torture statute.”

July 15, 2002: John Yoo faxes John Rizzo July 13 letter on the torture statute.

July 15, 2002: John Yoo sends Jennifer Koester an email telling her to include a footnote in the opinion stating that they had not been asked about affirmative defenses like necessity, self-defense, or commander-in-chief powers.

July 16, 2002: John Yoo and Jennifer Koester meet with Alberto Gonzales and (probably) David Addington and Tim Flanigan. Yoo shared the July 13 fax with them. At the meeting, it is decided that Yoo will include Commander-in-Chief and other affirmative defenses in Bybee Memo.

July 16, 2002: In response to earlier request from Michael Chertoff (perhaps as early as July 13), John Yoo has Jennifer Koester draft, but not send, a letter to CIA refusing a letter of declination of prosecution.

July 17, 2002: George Tenet meets with Condi Rice, who advised CIA could proceed with torture, subject to a determination of legality by OLC.

Of course, two things are going on in the background. First, when Ali Soufan left the black site in May because James Mitchell threatened Abu Zubaydah with mock burial, DOJ got official notice that one of its top terrorism agents believed that the CIA was using torture with Zubaydah. Yet, two months later, the torturers were almost certainly already using the most aggressive torture with Abu Zubaydah.

What seems to have happened is the following. Yoo and Koester were all set for an NSC meeting on July 12, perhaps until they had a July 11 briefing with Chertoff. In any case, something made them reschedule that NSC meeting to arrange an Alberto Gonzales (and presumably, Addington) meeting first. After which they appear to have had an incredibly contentious meeting with Bellinger, Chertoff, Levin and others. Perhaps the fact that John Rizzo presented the latest interrogation plan (which, we suspect, was already in process anyway) made things worse. We do know, for example, that mock burial remained in the plan, even after Soufan had balked when Mitchell tried to use it two months earlier. Whether because of Rizzo’s presentation or Yoo’s draft memo, at the meeting Chertoff definitively refused an advance declination and Levin announced that FBI would have nothing more to do with CIA’s torture program.

And so Rizzo, perhaps noting that the head of DOJ’s Criminal Division and the FBI Chief of Staff were reacting rather unfavorably to CIA’s torture plan, asked Yoo for some kind of cover. In response, Yoo wrote a memo raising the bar for prosecution of inflicting severe mental suffering incredibly high.

What I find particularly interesting is the 2-day delay before Yoo sent the fax, dated July 13, to Rizzo on July 15. That likely coincided with another delay; we know Chertoff asked Yoo to send Rizzo a letter refusing advance declination sometime between July 13 and July 16, but Yoo didn’t act on that request until he had sent Rizzo his July 13 fax already.

Did Yoo get both the request for the letter refusing advance declination and the request for the letter laying out the torture statute at the same contentious meeting?

And then there’s one more unexplainable coincidence. On the same day Yoo sent the July 13 memo (on July 15), Yoo instructed Koester they not only wouldn’t include any affirmative defenses in the memo, but they would claim they weren’t asked for such things. Yet that happened just a day before heading into a meeting with Gonzales and (almost certainly) Addington, at which they did decide to include such things. And incidentally–a fact I hadn’t noted before–Yoo gave Gonzales and (almost certainly) Addington a copy of his July 13 fax at the same meeting where it was decided to add affirmative defenses to the Bybee Memo.

I can’t prove it. But it appears that Yoo wrote the July 13 fax in response to serious reservations from Chertoff and Levin. And in response to that, Addington directed him to add a bunch more defenses (literal and figurative) into the Bybee Memo.

One last point. As I said, one key difference between the July 13 fax and the Bybee Memo is that Yoo rebutted an obvious objection to his reading of how the Torture Statute treated intent with severe mental suffering.

It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute.

Any bets on whether Chertoff and/or Levin made precisely this argument at that July 13 meeting?

A Momentous Day to Lose Your Documentation

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As I explained in this post, at least ten documents that OPR should have had to conduct its investigation into the writing of the torture memos disappeared sometime over the course of the investigation (significantly, CIA had an opportunity to come and take all the documents away for a while just after OPR first got access to them).

In this post, I showed how that prevents us–at least using just the unclassified report–from confirming whether or not John Yoo ever read the document making the following points:

  • The techniques the US was considering using on detainees amounted to torture
  • Torture produces unreliable information
  • America’s use of torture would increase the chances that Americans, if captured, would be tortured themselves

But there’s one more reason losing a large document, sent on July 25, 2002 from CIA and OLC (it probably originally came from DOD), is a problem: Because that document was exchanged on one of the most momentous days of the entire development of the torture memos.

Here’s a quick review of the most significant dates in the development of the torture memos:

April 11, 2002: John Yoo and Jennifer Koester officially begin working on the torture memo, though Yoo had already done research for it

July 13, 2002: Michael Chertoff tells CIA, Yoo, and others that DOJ will not issue an “advance declination” (a Get Out of Jail Free card) covering the torture program

July 16, 2002: David Addington, Alberto Gonzales, and Tim Flanigan order Yoo to reverse course and include the Commander-in-Chief and defenses section in the Bybee One memo to make up for not offering an advance declination

July 24, 2002: Yoo gives John Rizzo oral approval to use six torture techniques (attention grasp, walling, facial hold, facial slap, cramped confinement, and wall standing) but says DOJ needs more data before approving waterboarding and other more controversial techniques, possibly including mock burial

“Some point thereafter”: Yoo tells Rizzo it will “take longer” to approve remaining torture methods if mock burial is included

July 25, 2002: CIA sends 46 to 60 pages of documents–possibly DOD documents–to OLC; those documents have since been lost

July 26, 2002: CIA sends 3 (or 4?) more DOD documents to OLC, including a list of torture techniques used in SERE; though the OPR Report doesn’t say it in the unclassified section, OLC verbally approves remaining torture techniques (except mock burial); CIA requests, for the first time, written approval for specific techniques

August 1: Bybee One and Two memos signed, as well as letter to Gonzales on CAT

There are three main plot lines, from what we can see, in the development of the Bybee Memos: first, the refusal of an advance declination and the replacement with it of other ways to allow torturers to Get Out of Jail Free. Then, the decision not to approve mock burial in an effort to get the memo quickly. And, finally, CIA’s last minute request to get the torture techniques approved in a written document.

Two of those three events happened sometime between July 24 and July 26. I’d suggest they might even be related. And 60 pages of documentation (or maybe 46, we don’t know)–documents that might explain how mock burial got dropped and/or a written list got added–have disappeared.

My gut feel is that the disappearing documents–assuming their disappearance from a SCIF was not just a remarkable accident–have more to do with the JPRA document than with the change in approach that day. But there’s the distinct possibility that those documents also would have explained more about the dropped mock burials and the written list of torture techniques.