The “Legal Principles” Timeline

/88 Comments/in /by

I wanted to do a "Legal Principles" timeline to better understand why the document was developed and what more we might learn from it.

As a reminder, the "Legal Principles" document is a set of bullet points CIA’s Counterterrorism Center developed with the participation of John Yoo. Though the document was undated and unsigned, CIA tried to claim it counted as "DOJ agreement" an official OLC opinion authorizing key parts of their torture program.

It appears the "Legal Principles" document claimed to do three things:

  • Authorize the use of torture with other "al Qaeda" detainees, even those not described as "High Value"
  • Legally excuse crimes, potentially up to and including murder
  • Dismiss CAT’s Article 16 prohibition on cruel and inhuman treatment

As such, the document formed a critical legal fig leaf leading up to the release of the IG Report (at which point OLC clarified in writing that it was not a valid OLC opinion). I suspect the need to replace this explains some of the urgency surrounding the May 2005 OLC opinions.

John Yoo’s Original Approvals

The early approvals for torture focus largely on the torture statute to the detriment of other laws. Furthermore, the specific approval for torture–the Bybee Two memo–only covered Abu Zubaydah.

July 13, 2002: John Yoo writes Rizzo a letter outlining "what is necessary to establish the crime of torture."

August 1, 2002: Bybee memos establish organ failure standard and support necessity defense, state that interrogation would not be subject to ICC, and approve ten techniques for use with Abu Zubaydah.

Crimes Create the Need for New Approvals

It appears that the deaths in custody in November and December 2002 may have been the impetus for the "Legal Principles," in which case they can be understood as a way to dismiss crimes–including murder–committed on detainees.

November, December 2002: Deaths in CIA custody, (probably) abuse of al-Nashiri.

December 2002: Scott Muller meets with OLC (and Criminal Division) and briefed them on scope and breadth of program.  

April 28, 2003: Muller has draft of Legal Principles hand-carried to John Yoo. It states:

The United States is at war with al-Qa’ida. Accordingly, US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.

CIA Delivers "Legal Principles" to Philbin as Final Document after Yoo Leaves

In 2003, John Yoo left the OLC, which appears to have created legal exposure for CIA because they had the understanding that his authorizations were carte blanche authorizations. CIA tried to deal with this by presenting Yoo’s carte blanche to his replacement, Pat Philbin, as a fait accompli.

Read more →

Share this entry

AGAG Doesn’t Recall What He Said Monday

/77 Comments/in /by

Well, that’s not entirely correct. Rather, Alberto Gonzales is backing off what he said Monday, when he supported a torture investigation.

"Contrary to press reporting and based on the information that’s available to me," Mr. Gonzales said during an interview Thursday with The Washington Times, "I don’t support the investigation by the department because this is a matter that has already been reviewed thoroughly and because I believe that another investigation is going to harm our intelligence gathering capabilities and that’s a concern that’s shared by career intelligence officials and so for those reasons I respectfully disagree with the decision."

[snip]

"It’s an endorsement of his right to exercise his discretion," he said. "I’m just saying I would have exercised my discretion in a different manner, given the information I have."

So maybe the best explanation is that on Tuesday, Gonzales didn’t recall the investigation he purportedly did when he was still Attorney General.

Or maybe the better explanation is that someone finally gave him the sinecure he was looking for.

Update: My previous link went dead, so I replaced the content with the original Washington Times piece and fixed the timing.

Share this entry

David Broder Gives Cheney a Big Blow-Job

/90 Comments/in /by

David Broder has officially gone there–stated that he is happy with the impeachment of a President for a consensual blow job, but unhappy with the prospect that Dick Cheney will be held accountable for the torture he ordered up.

First, let me stipulate that I agree on the importance of accountability for illegal acts and for serious breaches of trust by government officials — even at the highest levels. I had no problem with the impeachment proceedings against Richard Nixon, and I called for Bill Clinton to resign when he lied to his Cabinet colleagues and to the country during the Monica Lewinsky scandal. 

He bases his opposition on the horror he would experience seeing Cheney standing in the dock.

Looming beyond the publicized cases of these relatively low-level operatives is the fundamental accountability question: What about those who approved of their actions? If accountability is the standard, then it should apply to the policymakers and not just to the underlings. Ultimately, do we want to see Cheney, who backed these actions and still does, standing in the dock? 

Hey Broder. When you ask rhetorical questions, you should make sure people would give you the answer you rhetorically want. Hell, even the NYT is champing to see Cheney standing in the dock.

But not Broder. He argues that it must be a bad idea to investigate torture because the guy in charge of defending the CIA as an institution has said it would be a bad idea and lots of people at the CIA have told David Ignatius Leon Panetta is nice.

Leon Panetta, the conscientious director of the Central Intelligence Agency who, earlier in his government career, resigned to protest the policies of the Nixon administration in which he was serving, has disagreed with Holder’s decision. He says it will have a harmful effect on the morale and operations of his agency, which has already taken strong steps to correct the policies he inherited.

Panetta’s judgment is supported by the reporting of The Post’s David Ignatius and others with excellent sources inside the CIA.

Ah! American journalism! Lots of people at CIA say Panetta has good judgment not to want an investigation and because they’re at the CIA I find them especially trust-worthy.

Read more →

Share this entry

Whitehouse and the Corpus Delicti Leading to Cheney

/70 Comments/in /by

A number of you have pointed to this article, where Sheldon Whitehouse speaks of the corpus delicti that justifies an investigation.

The prosecutor is often first presented with a case as a "corpus delicti" — a bullet-riddled body in the street, for instance. That ordinarily is enough to justify investigation. Through investigation, the evidence may prove that there was not in fact a crime (it was a suicide or an accident) or that the fatal acts were privileged or enjoy a legal defense (self-defense or justifiable shooting by an officer of the law). But one begins by investigation.

Here he is on KO tying the dead bodies of torture right to Dick Cheney.

As he says, 

If you don’t have anything to hide, you don’t often spend a great deal of time trying to hide it.

Share this entry

More on CIA’s Fictions about Executive Branch and Congressional Briefings

/102 Comments/in /by

I’ve been promising to return to the way that the CIA IG Report discusses the Congressional and Executive Branch approvals for the torture program. Particularly given John McCain’s complaint that CIA misrepresented what he said in a torture briefing, I thought it time to do so.

A close look at the claims the IG Report made about approvals shows it:

  • Repeats earlier CIA vagueness and outright lies about Congressional briefings and individual Members’ responses to those briefings
  • Emphasizes the centrality of DOJ to approvals, at times misleadingly 
  • May obscure the timing of and the participants in White House approval of the program

Now, remember, it’s not clear whether these fictions are the IG’s fiction, or whether John Helgerson’s team was given crappy information. One other thing to keep in mind, though, is that the IG Report appears to have been drafted as early as February 24, 2004–over two months before it was ultimately released. While Cheney had a chance to review the document, DOJ did not. And Congress was only given the document the week of June 18, 2004, when Ashcroft started balking at its content.

What follows is a paragraph by paragraph assessment of the CIA IG’s claims about Congressional and Executive Branch approvals for torture. 

45. At the same time that OLC was reviewing the legality of EITs in the summer of 2002, the Agency was consulting with NSC policy staff and senior Administration officials. The DCI briefed appropriate senior national security and legal officials on the proposed EITs. In the fall of 2002, the Agency briefed the leadership of the Congressional Intelligence Oversight Committees on the use of both standard techniques and EITs.

To some degree the first sentence of the paragraph matches what appears in the SSCI Narrative, which shows the following "consultations:"

April 2002: OGC "began discussions with [Bellinger] and OLC concerning the CIA’s proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation. Bellinger briefed Condi Rice, Stephen Hadley, Alberto Gonzales, John Ashcroft, Michael Chertoff

Mid-May 2002: OGC meets with Ashcroft, Condi, Hadley, Bellinger, and Gonzales

July 13, 2002: OGC met with Bellinger, Yoo, Chertoff, Daniel Levin, Gonzales

July 17, 2002: George Tenet met with Condi, who okays torture program

Though of course, it uses a rather broad definition of "summer." I’m also curious about the "at the same time" description. The SSCI narrative notes that OGC didn’t talk to OLC until after the first consultations. And neither of these account for the alleged earlier approvals going back to at least May. Neither of these account for the meetings between the War Council (Addington, Yoo, Haynes, Rizzo, and Gonzales) going back much further. Furthermore, neither lists the July 13, 2002 letter from Yoo to Rizzo basically instructing him how to game the law. In other words, I wonder (as I have since the SSCI Narrative came out) whether the NSC-CIA discussions are really a distraction from the much earlier approvals involving other lawyers like Addington and Haynes?

Now onto the sentence describing the Congressional briefing. Read more →

Share this entry

The CIA’s Latest Vaughn Follies

/97 Comments/in /by

The CIA has released another Vaughn Index listing all the documents it refuses to hand over to the ACLU.

Some highlights are:

Other-3, June 17, 2004: This is an eight page document, including a routing slip, requesting continued legal and policy support for the CIA’s interrogation program. 

This document must be a response to Jack Goldsmith’s June 10, 2004 letter to Scott Muller, stating that if he wanted the torture program re-approved, he would have to spell out what the program entailed. 

Other-5, February 24, 2004: This is a 129 page draft document, regarding the review of the CIA’s interrogation program, with comments and suggestions from a CIA attorney on how the document could be improved. 

This must be a draft of the IG Report itself (the final length of which is 109 pages, without appendices). I find this interesting largely because it suggests the report itself was drafted six weeks before it was ultimately released. Presumably, the lawyer in question is someone in OGC, probably Scott Muller or John Rizzo.  Other-7 also appears to be a much earlier (January 13, 2004), much shorter (44-pages) draft. 

Other-19, July 29, 2003: This is a 19-page Powerpoint presentation regarding the CIA’s interrogation program, as it relates to high value detainees.

This must be the PowerPoint used at the meeting at which John Ashcroft is alleged to have approved of the massive numbers of waterboarding sessions. By withholding it, CIA is preventing independent review of what they planned to say.

Other-23, June 16, 2003: This is a 4-page document, including a router page, that summarizes the applicable law to the CIA’s detention and interrogation program. 

Other-25, June 16, 2003: This is an 8-page document, including two routing slips and a classification cover sheet. The document summarizes the law applicable to the CIA’s detention and interrogation program of captured detainees. 

These must be versions of the Vaughn #19 document of the same date and content released in last week’s document dump (the 4-page document must not have a fax cover-sheet and the 8-page one must have several).  Given that they’ve withheld Other-23 and Other-25 but released Vaughn 19, they must be protecting the content of the cover sheets on Other-25 and possibly earlier draft details from Other-23. Their exemption for Other-23 explains:

This document contains pre-decisional deliberative process information and confidential communications between a CIA attorney and CIA officers relating to a matter for which the officers sought legal advice. Read more →

Share this entry

Gonzales’ Choice

/64 Comments/in , /by

This is what happens when a corrupt Administration doesn’t distribute the sinecures to all. (h/t MadDog)

Former U.S. Attorney General Alberto R. Gonzales on Tuesday defended the decision of his current successor, Eric H. Holder Jr., to investigate alleged prisoner abuse by CIA interrogators over President Obama’s desire to look forward.

"As chief prosecutor of the United States, he should make the decision on his own, based on the facts, then inform the White House," said Mr. Gonzales, who was appointed to the post by President George W. Bush in 2005 and resigned in 2007.

(He goes on to say that if people exceeded guidelines, it is fair to punish them.)

And who can blame Fredo? Nora Dannehy is still investigating whether Alberto Gonzales politicized DOJ, picking and choosing cases and US Attorneys for political reasons. This offers an opportunity for him to defend the independence of the Attorney General, even if his statement contradicts all his actions in that position. It looks good, you know?

I’m particularly curious whether Gonzales’ statement is designed to forestall investigation in his role both in 2005 (when, the torture apologists claim, with only some accuracy, DOJ investigated but did not pursue these abuses) and/or his alleged role much earlier in the process, giving day to day approval for techniques used by the torturers?

I will say this though: welcome, AGAG! Let’s hear more from you on the importance of DOJ independence. Not because your words have any credibility. But because it suggests you might be willing to say more–much more–to defend yourself in the face of those who refused you a sinecure.

Share this entry

Bowe Bergdahl and Joke Line

/55 Comments/in /by

Just one follow-up to my "Omigoddidjokelinereallygothere" post from yesterday.

Joke Line, in his screed against Glenn Greenwald, argued that Glenn cares not a whit for national security.

During that time, I have never seen him write a positive sentence about the US military, which has transformed itself dramatically for the better since Rumsfeld’s departure (indeed, he ridiculed me when I reported that the situation in Anbar Province was turning around in 2007). I have never seen him acknowledge that the work of the clandestine service-performed disgracefully by the CIA during the early Bush years-is an absolute necessity in a world where terrorists have the capability to attack us at any time, in almost any place. Nor have I seen [him] acknowledge that such a threat exists, nor make a single positive suggestion about how to confront that threat in ways that might conform to his views. Therefore, I have seen no evidence that he cares one whit about the national security of the United States. It is not hyperbole, it is a fact.

You see, the thing that bugs Joke Line is that (he says) Glenn is a "a civil liberties absolutist" and doesn’t talk about the transformation of the US military, the importance of the clandestine services, or the terrorist threat.

But see what he doesn’t say? 

He doesn’t mention the men and women serving in the military. At least as he has framed his attack, Glenn’s failure is that he hasn’t mentioned the abstract military-as-machine and the terrorist-threat-as-bogeyman. But not that he hasn’t mentioned the men and women risking their lives to run that military-as-machine against the terrorist-threat-as-bogeyman.

Now, I don’t mean to adopt Joke Line’s rhetorical attack–attacking Glenn for things he hasn’t said. I trust that Joke Line cares about the troops, regardless of how he has framed his attack on Glenn. 

But I did want to point out something missing from the binary he set up: civil liberties absolutist versus national security realist.

Bowe Bergdahl.

Bowe Bergdahl and all the other men and women who have or might be taken captive by our enemies in the war Joke Line cares so much about. Bergdahl, who, last anyone checked on August 10, is still in Taliban custody. Read more →

Share this entry

Back to Breuer’s Claims about Future Investigations

/34 Comments/in , /by

Lanny Breuer, he of the potential conflict, has argued that DOJ must keep Dick Cheney’s CIA Leak interview secret because, if it doesn’t, then senior White House officials may not cooperate with DOJ investigations in the future. 

Moreover, if interviews of senior-level White House officials become subject to routine public disclosure, the White House official may agree to talk only in response to a grand jury subpoena in order to obtain the confidentiality protection of Rule 6(e) of the Federal Rules of Criminal Procedure.

And if senior White House officials don’t cooperate with DOJ investigations, it may deprive investigators of information about the underlying White House policies tied to alleged crimes. 

In any such investigation, it will be important that White House officials be able to provide law enforcement officials with a full account of relevant events. Any such investigation may delve into or require a full accounting of internal White House deliberations or other government operations. Questions may cover, for example, conversations between the President or Vice President and senior advisors, the decision-making process on specific policy matters, advice given to the President or direction provided by the President, and internal discussions relating to White House interactions with other Executive Branch entities and with Congress.

Writing just one week after Breuer’s boss, Eric Holder, announced an investigation into torture that may ultimately consider White House deliberations (or at the very least, OVP machinations), I’m sympathetic to Breuer’s claimed concern with obtaining such high level cooperation.

But I think nothing undermines Breuer’s argument that DOJ’s efforts to keep Cheney’s CIA Leak case interview secret will enhance cooperation in the future more than Dick Cheney’s suggestions that he’s not going to cooperate with the torture investigation, regardless of what happens.

WALLACE: If the prosecutor asks to speak to you, will you speak to him? 

CHENEY: It will depend on the circumstances and what I think their activities are really involved in. I’ve been very outspoken in my views on this matter. I’ve been very forthright publicly in talking about my involvement in these policies. 

I’m very proud of what we did in terms of defending the nation for the last eight years successfully. And, you know, it won’t take a prosecutor to find out what I think. I’ve already expressed those views rather forthrightly.

Read more →

Share this entry

McCain Owes Pelosi an Apology

/35 Comments/in /by

Back in May, when Nancy Pelosi was pointing out, correctly, that she had not been briefed that the CIA was already in the torture business, John McCain joined the rest of his party in suggesting that Pelosi could have prevented the torture. He suggested that his efforts–he focuses on 2005, ignoring that he basically capitulated on a Nuremberg Defense in the Detainee Treatment Act–were successful in preventing torture.

"Let me just tell you — I was briefed on it — and I vehemently objected to it. We did the Detainee Treatment Act, which prohibited cruel, inhuman and degrading treatment. So we felt, I certainly felt, I could act on it."

He dismissed her claim she was barred from acting on what she learned in the briefings with a shrug.

"I’m sure she has her argument and we’ll see if the American people agree."

Today it’s McCain’s turn to insist he did all he could to prevent torture. In the Time article I cited earlier, McCain is left to insist, futilely, that he complained specifically about the proposed use of sleep deprivation.

An aide to McCain said that in meetings with Hayden and others, McCain raised the story of Orson Swindle, a friend of McCain’s who suffered forced sleep deprivation through stress positions as a captive of the North Vietnamese.

Of course, we now know that between the CIA and Steven Bradbury, the torture apologists were actually using McCain’s name in support of the use of sleep deprivation. Presumably, then, those two detainees with whom sleep deprivation was used in August 2007 and October 2007 were abused in spite of McCain’s complaints. 

Neither of these politicians were heroes in their opposition to torture. But the public record makes it clear that Pelosi measured the Bushies much better than McCain: even opposition like that McCain voiced was turned into support for abuse. 

And its time both the Democrats and the Republicans opposing torture acknowledged that fact, because it’s a key step to holding those responsible for torture accountable. 

Share this entry