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. As such, it would appear to be a conflict of interest for Mr. Bradbury to review and comment on the OPR report.  We note that on January 15, 2009, Mr. Bradbury issued a “Memorandum for the Files” criticizing OLC opinions issued in 2001-2003.  He wrote that the January 15^th memorandum and a previous memorandum were not “intended to suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility.”  If Mr. Bradbury did review the OPR report, this could have improperly influenced the opinions he expressed on OLC’s behalf in the January 15^th memorandum, particularly his decision to emphasize that the authors of discredited OLC opinions on detainee issues had not necessarily violated their professional responsibilities.

As well as a bunch of questions about whether allowing the subjects of an investigation normally get to comment on the outcome of it. 

1. Was Steven Bradbury involved in reviewing and commenting on the draft OPR report?   
2. Is there any precedent for allowing the subject of an OPR investigation to review and provide comments on a draft report on OPR’s findings and conclusions?
3. Have the former Justice Department attorneys who are the subjects of the investigation been given a deadline for responding?
4. Will OPR provide Attorney General Holder and Deputy Attorney General Ogden with the draft report that it provided to Attorney General Mukasey so that Attorney General Holder and Deputy Attorney General Ogden will know what revisions have been made to the report?

Somehow, I get the feeling Mukasey tried to stall this out for several months. 

Of course, Durbin and Whitehouse don’t ask the natural follow-up–will Holder let them continue to stall this out?

I presume this story on Abu Zubaydah is an attempt to highlight the difficulty of choices facing the Obama administration, as well as to draw some attention to things like the excerpts of the ICRC report on Abu Zubaydah’s (and others’) torture. It reminds us what we already know–that Abu Zubaydah suffers from a head injury that made his memory bad and wasn’t even a member of al Qaeda, making his torture that much more pointless.

Because his name often turned up in intelligence traffic linked to al-Qaeda transactions, some U.S. intelligence leaders were convinced that Abu Zubaida was a major figure in the terrorist organization, according to officials engaged in the discussions at the time.

But Abu Zubaida had strained and limited relations with bin Laden and only vague knowledge before the Sept. 11 attacks that something was brewing, the officials said.

[snip]

"The government doesn’t retreat from who KSM is, and neither does KSM," said Joseph Margulies, a professor of law at Northwestern University and one of Abu Zubaida’s attorneys, using an abbreviation for Mohammed. "With Zubaida, it’s different. The government seems finally to understand he is not at all the person they thought he was. But he was tortured. And that’s just a profoundly embarrassing position for the government to be in." 

The news, here, seems to be that the US picked up a young associate of Abu Zubaydah the same night they got the older man. And that associate, Noor al-Deen, basically corroborated the details the intelligence community is now accepting. Before the US started torturing Abu Zubaydah.

Noor al-Deen, a Syrian, was a teenager when he was captured along with Abu Zubaida at a Pakistani safe house. Perhaps because of his youth and agitated state, he readily answered U.S. questions, officials said, and the questioning went on for months, first in Pakistan and later in a detention facility in Morocco. His description of Abu Zubaida was consistent: The older man was a well-known functionary with links to al-Qaeda, but he knew little detailed information about the group’s operations.

[snip]

On the night of March 28, 2002, Pakistani and American intelligence officers raided the Faisalabad safe house where Abu Zubaida had been staying. A firefight ensued, and Abu Zubaida was captured after jumping from the building’s second floor. He had been shot three times.

Cowering on the ground floor and also shot was Noor al-Deen, Abu Zubaida’s 19-year-old colleague; one source said that he worshiped the older man as a hero. Deen was wide-eyed with fear and appeared to believe that he was about to be executed, remembered John Kiriakou, a former CIA officer who participated in the raid.

"He was frightened — mostly over what we were going to do with him," Kiriakou said. "He had come to the conclusion that his life was over."

Deen was eventually transferred to Syria, but attempts to firmly establish his current whereabouts were unsuccessful.

His interrogations corroborated what CIA officials were hearing from Abu Zubaida, but there were other clues at the time that pointed to a less-than-central role for the Palestinian. As a veritable travel agent for jihadists, Abu Zubaida operated in a public world of Internet transactions and ticket agents.

So you’ve got a panicked teenager spilling his guts, insisting that Abu Zubaydah is just a functionary. And at the same time, Abu Zubaydah was saying he was just a functionary (and providing what useful intelligence he had to offer). And the US response to that was … to make Abu Zubaydah their torture experiment–their test case for what torture techniques did and did not "work." 

Yet more reason they destroyed the torture tapes showing Abu Zubaydah’s interrogation.

The NYRB New Yorker has a piece with long excerpts from the leaked Red Cross report on American torture of high value detainees. (h/t scribe; corrected per scribe) Read it. It’s chilling in its systematicity–the constant involvement of doctors, the efforts to hide any marks of torture, the invention of clinical language to describe torture.

I’ll return to the report, but for the moment just one observation.

Amid a slew of details on the treatment of Abu Zubaydah, the article describes Abu Zubaydah learning that he was the guinea pig for these techniques.

We do not know if the plywood [to minimize the damage from slamming him against the wall] appeared in Zubaydah’s white room thanks to orders from his interrogators, from their bosses at Langley, or perhaps from their superiors in the White House. We don’t know the precise parts played by those responsible for "choreographing" the "alternative set of procedures." We do know from several reports that at a White House meeting in July 2002 top administration lawyers gave the CIA "the green light" to move to the "more aggressive techniques" that were applied to him, separately and in combination, during the following days:

After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about 3 months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box, I think I may have slept or maybe fainted.

I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.

I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me…. I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.

I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold.

This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocation.

During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved everyday.

I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.

I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.

5.

All evidence from the ICRC report suggests that Abu Zubaydah’s informant was telling him the truth: he was the first, and, as such, a guinea pig. Some techniques are discarded. The coffin-like black boxes, for example, barely large enough to contain a man, one six feet tall and the other scarcely more than three feet, which seem to recall the sensory-deprivation tanks used in early CIA-sponsored experiments, do not reappear. Neither does the "long-time sitting"—the weeks shackled to a chair—that Abu Zubaydah endured in his first few months. [my emphasis]

This article makes clear, then, that about two and a half months after he first woke up in US custody–so probably shortly after mid-June 2002–the US was experimenting on Abu Zubaydah, testing out various forms of torture to see which worked best and left the fewest marks.

Understand what this means: the torturers were conducting their experiments on Abu Zubaydah before John Yoo wrote up an OLC memo authorizing torture (hell–Yoo may have excluded those methods they had decided were ineffective and that my be why they told Abu Zubaydah there were no rules). The torturers were conducting their experiments with the intimate involvement of those back at the White House getting briefed and approving of each technique. And the torturers were being videotaped doing so. 

Those tapes–which in this context sound like a tool in their experimentation more than anything else–are the tapes that CIA destroyed in 2005.

Which I guess makes my question from a few weeks ago all the more pressing. Who watched these torture tapes?

Let’s do some math.

First, the NYT reports that, like Alberto Gonzales, David Addington is also facing some career challenges. 

David S. Addington, a top aide to Vice President Dick Cheney who was a forceful voice in internal legal debates, is also said to still be looking for work.

Next, Scott Horton reports on the upcoming OPR report detailing John Yoo and Steven Bradbury’s unethical conduct in craft OLC memos to justify torture. The report, apparently, focuses on contacts between the White House and OLC.

Sources at the department who have examined [the OPR] report state that it echoes some of the harshest criticisms that have appeared in the academic literature, but the report’s real bombshell, they say, will be its detailed disclosure of Yoo’s dealings with the White House in connection with the preparation of the memos. It is widely suspected that the Yoo memos were requested as after-the-fact legal cover for draconian policies that were already in place (“CYA memos”). If the Justice Department internal probe concludes this is the case, that could have clear consequences for the current debate surrounding the Bush administration’s accountability for torture. [my emphasis]

Earlier reports had mentioned some surprise among observers that investigators had included the contents of emails, which makes me wonder whether the White House’s so-far success at eliminating emails from other periods–like September-October 2003–when they were breaking the law didn’t extend as far back as 2001 and 2002.That is, I wonder whether the surprise had as much to do with the fact that OPR managed to get emails between the White House and Yoo, as with the emails themselves.

Now, right off the bat, I can think of some dates that might make this more interesting. The warrantless wiretap program started in early October. But they were still writing new memos to authorize it (and eliminate the Fourth Amendment) for several months after the fact (though the OPR investigation into wiretapping is separate). They started torturing Abu Zubaydah before August 1, 2002, when Yoo’s first memos came out on it (I suspect the third still-classified memo may retroactively approve the earlier torture). And DOD started the torture regime before authorization for that went up the chain of command.

There are already a few memos where we know the illegal program started, only to be followed by a Yoo memo authorizing that program (there’s an August 1, 2002 one that I suspect may retroactively approve of what they had been doing to Abu Zubaydah).

Is it possible that the private firms that refuse to employ Gonzales and (apparently) Addington already know their responsibility for illegal activity will come out? 

The Obama Administration got stuck with a bad court date to have to try to convince a Judge the Jose Padilla suit against John Yoo should be dismissed. After all, we knew Yoo’s memos were legally indefensible. But with the release of nine new OLC memos–including the memo eviscerating the Fourth Amendment, the two withdrawing that one and others, and, significantly, one of the memos pertaining to Padilla specifically ("authorizing" his military detention), the sheer cravenness of Yoo’s legal work is in sharp relief this week.

Nevertheless, they did argue Judge White should dismiss the suit. Though it sounds like he wasn’t impressed with their argument. 

The judge, Jeffrey S. White of Federal District Court, explored the arguments of Mr. Padilla’s lawyers thoroughly, but he appeared to be skeptical of elements of the government’s argument.

And he referred to the 4th Amendment Evisceration memo specifically.

In fact, Judge White, who was appointed by President George W. Bush, even told the government’s lawyers that Mr. Yoo’s 2001 memorandum stating that the constitutional protections against unreasonable searches and seizures can be overridden was “a pretty scary position.”

And there’s a further problem with the Administration’s position. They’re arguing that it is not the place for the Courts to take recourse against a government lawyer gone bad–it’s the role of the Executive.

But any recourse against a government lawyer "is for the executive to decide, in the first instance, and for Congress to decide," not the courts, she said. 

Which suggests that the Administration thinks its puny OPR investigation against Yoo is an appropriate response.

The Obama Administration has already signalled that it doesn’t plan real legal consequences for its lawyer for torture. And yet based on that, they want the Courts to butt out.

One more point. It appears that the Administration has not yet turned all the memos used to justfy Padilla’s treatment over (or at least not made them public). 

Earlier last week, the Obama administration released nine "war on terror" memos — some written by Yoo, others by 9th U.S. Circuit Court of Appeals Judge Jay Bybee — shortly after White ordered the DOJ to clarify whether it wanted to submit them under seal in the Padilla case. However, the administration didn’t release all of the memos referenced in Padilla’s complaint, and White asked whether that meant he had to take Padilla’s descriptions of those documents as true, for purposes of a motion to dismiss.

White characterized his inquiry on this subject as "50 percent curiosity, and 50 percent legal significance." The government once again revealed its awkward position in the litigation, since technically Yoo is being sued in his individual capacity. Thus the government is not a party, and has no discovery obligations.

"What’s the harm in putting all of the memos on the Web site?" White asked.

"I have no idea what the harm would be," Mason said, adding that it is a policy decision made by officials in Yoo’s former office.

It has already been a bad week for the Obama Administration to be making this argument. But apparently, they’re still sitting on some of the opinions that could have made it worse. 

In yet another sign that the counter-terrorist state built on executive secrets continues to crumble, the DC Circuit Court just ruled that judges–and not the government–will get to determine whether classified information would be helpful to detainee habeas corpus petitions. (h/t scribe) And if that information is helpful, then the detainee lawyers will get that information.

In a ruling that may give lawyers for Guantanamo Bay detainees expanded opportunities to challenge the government’s reasons for keeping them confined, the D.C. Circuit Court on Friday spelled out new rules on when the prisoners’ lawyers get to see secret information in government files.   The ruling in Al Odah v. U.S. (05-5117) and consolidated cases can be found here.

Of particular importance, the Circuit Court said that merely because the government contends that secret data will not bolster the detainees’ challenges does not control when a federal judge must provide access to that information for the detainees’ lawyers.  Those lawyers, the Court indicated, may be allowed by a judge to get the withheld information itself — or a substitute that reveals the substance without showing how the government collected it — if the judge finds it would be helpful to the detainees’ challenge.  That is the judge’s job, not the government’s, the panel ruled.

While the Court has given the Administration an opportunity to ask for a review from the full Court, this is yet another example of an Article III Court telling Article II that the Executive cannot deprive litigants access to the Courts simply by saying the material at issue is too secret for the Courts.

As scribe pointed out in email, this ruling is no doubt going to be of interest to Judge Walker, if he does end up ruling that al-Haramain is an aggrieved party. As I reported last week, the Obama Administration has threatened to take its secrets and go home if Walker rules that al-Haramain’s lawyers get to see some of the material in the case. 

Because, for the moment at least, the DC Appeals Court says the Obama Administration can’t take its secrets and go home.

Arlen "Scottish Haggis" Specter–whose political obituary was written yesterday in the form of a dismal poll result and a renewed threat from Pat Toomey—says we don’t need a truth commission because all the details on Bush era crimes are contained in some file cabinets that we need only waltz up to and empty out.

And in case you were wondering, Lee Harvey Oswald acted alone.

Presumably because he believes we need only waltz up to those file cabinets and take out the Cheney indictment, the sole contribution Scottish Haggis made in today’s Truth Commission Hearing was to enter this Hans von Spakovsky column into the record. Given that Hans von Spak accused Leahy of pitching a House Un-American Activities Commission, I can only interpret Haggis’ action as a profoundly cowardly attempt to get back in the good graces of the Club for Growth. 

The column itself shows the depths to which the Heritage Foundation has stooped in these, the declining years of the Conservative Movement. Even setting aside the horrible optics of having someone under investigation for abridging minority civil rights for political gain squawking about "political prosecutions," the column is just of pathetically bad quality.

Hans von Spak begins by exactly repeating (the Heritage Foundation, defender of private property, apparently doesn’t even require original work anymore) an error the WSJ made in January, claiming that nothing resulted from Carl Levin’s 18 month investigation into torture in DOD.

Moreover, Sen. Carl Levin (D-Mich.) held hearings, under oath, over a 2½- year period looking into many of the same issues. His report, though predictably partisan, found no criminal violations.

Aside from this apparent inability to even count (18? 30? no difference to today’s conservative), Hans von Spak apparently believes that the Committee’s findings–that Bush’s dismissal of Article Three and Rummy’s approval of aggressive technique were the "direct cause of detainee abuse" in Gitmo–doesn’t amount to a criminal violation.

And of course, Hans von Spak, like the WSJ, basically endorsed Levin’s approach while ignoring his call for "an outside commission appointed to take this out of politics, that … would have the clear subpoena authority to get to the parts of this which are not yet clear, and that is the role of the CIA." Hans von Spak and WSJ try to fight the idea of a Truth Commission by pointing to the good work of someone effectively supporting a Truth Commission.

Then, after repeating–in more incendiary fashion–the same straw men that David Rivkin used before the hearing today (again, what happened to the individualist concept of original work??), Hans von Spak, from the same party that criminalized a consensual blow job, the guy under investigation for illegal hiring practices for political reasons, whines some more about the criminalization of politics. 

Of course.

The thing that really gets me about Hans von Spak’s screed, though, are his exaggerations about Democratic complacency in torture. Oh sure, I’d have liked them to use speech and debate to expose the legal wrong-doing. But when Hans von Spak claims that, 

In December 2007, The Washington Post reported that in 2002 four members of Congress were given a virtual tour of the CIA’s overseas detention sites and were briefed on interrogation techniques. The bipartisan group, which included Pelosi, was specifically briefed on waterboarding. None of the four complained, and one of them asked if the methods being used were tough enough.

He somehow neglects to mention the very important detail that in this, the only torture briefing Pelosi attended, they were told the torture wasn’t being used yet.

Then, with some dishonest rhetoric, Hans von Spak suggests that no one ever objected to the torture regime.

The CIA gave key legislative overseers about 30 private briefings, including waterboarding and other interrogation techniques in 2002 and 2003. It is curious that lawmakers who were repeatedly briefed and raised no objections should subsequently criticize those very same policies.

Hans von Spak would prefer you didn’t know, I guess, about Jane Harman’s written objection to the torture (and, two years ahead of time, the destruction of the torture tapes). Remarkably, in 2003, Harman was asking the same questions we’re still looking to examine in this Truth Commission:

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?

Pelosi, for her part, has committed to real oversight, whatever her shortcomings in the past. Hans von Spak, on the other hand, keeps crying about "criminalizing politics," presumably in an attempt in inoculate his own alleged criminal attempts to politicize justice.

My biggest questions about this, though, are these. Really, is this the best the Heritage Foundation can do? All that corporate money and they can’t even find someone who can do original work that can stand up to the scrutiny of a DFH blogger?  This is what the Conservative Movement has come to?

And speaking of pathetic, why is Politico publishing a column that–in significant part–the WSJ published as its own editorial two months ago? Recycling WSJ’s crap in the voice of a totally discredited, legally-implicated hack is their idea of cutting edge journalism? Two month old inaccurate opinion is "news"?

And then, finally, I know Scottish Haggis can be pathetic. But is he really going to go there, where in a desperate attempt to cling to his Senate seat he becomes the front man for a guy like Hans von Spak?

I know these guys are desperate to stop any real scrutiny of Bush’s actions, but their pathetic state is just making me sad.

As I liveblogged here, the Republican response to Pat Leahy’s proposal to have a Truth Commission on Bush era crimes is to establish a set of straw men and then shoot them down, without ever addressing the problem that a number of high level Administration officials broke the law.

This exchange between Sheldon Whitehouse and designated Republican shill David Rivkin gets to the key aspects of tactic. Rivkin repeatedly introduced his own assumptions into what the Commission would do, all so he point to the constitutional challenges that only his imagined committee would have. And repeatedly during the hearing, Rivkin claimed the whole point of the commission was to select 12 to 13 high level officials and lay out the evidence of their criminal culpability.

I’m curious, though. If Rivkin has such an exact number of Bush Administration officials who broke the law, why hasn’t he called them out himself as prosecution targets? Or has he simply put his Republican affiliation before our Constitution? 

And isn’t it charming that Rivkin is so concerned about the civil liberties of those who in 37 pages claimed to eliminate both the First and Fourth Amendment?

Here’s my liveblogged transcript (with all the errors that implies):

Whitehouse: Rivkin. You raise the gallery of horribles that might go wrong. If you assume that the purpose is advisory in policy only. If you assume that criminal law enforcement is properly cabined in Exec as it should be. If you assume coordination on issues like immunity. And if it is set up not as private entity but as delegated Congressional oversight authority. Still oppose, even in the absence of parade of horribles.

Rivkin: This assumes too much. To me law enforcement function has variety of aspects. Ultimate decision to proceed with prosecution. 

Whitehouse: no one is suggesting otherwise. 

Rivkin: Deciding as threshold determination whom to investigate.

Whitehouse: We do that in COngress every moment.

Rivkin: RIght in Congress.

Whitehouse: Right to delegate.

Rivkin: I do not beleve it is readily delegable.

Whitehouse: Now you use another hedge word. Properly appointed commission.

Rivkin: Appointments clause? If you could configure commission that makes it an extension of Article I branch. I don’t see how you can delegate oversight responsibility. If it walks like a duck and talks like a duck. WE’ve heard today about criminal investigation, PIN does, on 12 or 14 people, then passes the buck to PIN in public spotlight. If this were contemplated in different context, every law professor would be screaming about it.

Whitehouse: Every law professor? I’m trying to get an unhedged phrase out of you.

Rivkin: If Bush Administration had done an investigation on charitable organizations? 

Whitehouse: organized criticism is an offense against their civil liberties.

Rivkin: Looking at individual criminal liability.

Whitehouse: nonono.

Rivkin: there’s no way to cabin this. How are you going to come up with analysis of two or three members of Administration. If you said Mr A committed torture, that reads like doc that AUSA sends to his boss.

Whitehouse; My time has expired. Until you know and we all know what was actually done, do not be so quick to throw other generations under the bus and assume they did worse. 

The best part of his video, though, are two small details. In the background is the other witness (is that Admiral Gunn?) cracking up every time Whitehouse corners Rivkin behind the hedge of his own making. I do hope Rivkin noticed.

And then, at the very end, you’ve got someone responding to Whitehouse’s slapdown of Rivkin’s claim that prior generations have done worse in war than ours. You can hear someone say, "Ooh."

Will be on CSPAN3 and the Committee stream.

Meteor Blades has a great roundup of today’s witnesses (actually, his entire post is worth a read, as always with him).

They are:

Thomas Pickering is a career diplomat who served as U.S. ambassador to Jordan (1974–1978), Nigeria (1981–1983), El Salvador (1983–1985), Israel (1985–1988), the United Nations (1989-1992), India (1992–1993) and Russia (1993–1996). He is now vice chairman of Hills & Company, and is co-chair of the 14-year-old International Crisis Group. Three weeks ago Pickering signed a letter  to President Obama seeking a commission to look into the detention, treatment, and transfer of captives after September 11.

Vice Admiral Lee Gunn (Ret.), who served in the final three years of his 35-year military career as Inspector General of the Department of the Navy, is now president of the Institute of Public Research at the CNA Corporation, and president of the 2-year-old American Security Project, which sees its mission as "promoting debate about the appropriate use of American power, and cultivating strategic responses to 21st century challenges."

John J. Farmer Jr., the former attorney general of New Jersey was Senior Counsel to the 9/11 Commission. He is a partner at Arsenault, Whipple, Farmer, Fasset and Azzarello, L.L.P. and an adjunct professor at Rutgers School of Law-Newark. He wrote "The Rule of Law in an Age of Terror" for the Rutgers University Law Review (2005).

Frederick A. O. Schwarz, Jr. Chief Counsel at the Brennan Center for Justice and chief counsel for  Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activity (1975-1976), widely known as the Church Committee for its chairman, Idaho Senator Frank Church. His latest book, written with Aziz Z. Huq, is Unchecked and Unbalanced: Presidential Power in a Time of Terror

David B. Rivkin, Jr. is a partner with Baker & Hostetler, L.L.P. He was chief counsel of the President’s Council on Competitiveness at the White House under George H.W. Bush, where he was in charge of a review of government regulations. He later coordinated the development and implementation of the first Bush’s deregulation efforts. He has argued that the United States has not violated the Geneva Conventions with its captured prisoner policy and that it was a few "bad apples" and not policy that was responsible for what happened at Abu Ghraib and elsewhere, and opposed appointment of a special prosecutor in the Lewis "Scooter" Libby affair.

Jeremy Rabkin, a renowned scholar of internationalaw, is a professor at George Mason University School of Law in Arlington, Va. A member of the board of directors of the United States Institute of Peace and author, most recently, of the Law without Nations?: Why Constitutional Government Requires Sovereign States. He has argued that all Presidents stretch the law in times of war, but that the U.S. always regains its balance afterward.

Leahy: Starts by emphasizing this as a time to pull together. "I suggested a middle ground in a way" that everyone can kumbaya.

Consitution not something an Administration can switch on or off at will. Commission is not something to be opposed, it’s an opportunity to come together. If one party remains absent or resistent, the opportunity can be lost, and calls for accountability via more traditional means will grow louder.

[Shorter Leahy, get on board now, you apologists, or we’re going to indictments. We’re being used as the pressure point on Republicans to make them accept this approach.]

Specter: Post-9/11 greatest expansion of executive power in our history. I said we don’t need a Truth Commission because you can just walk in and access the filing cabinets to get what you want. The release of the "unusual" OLC opinions. Very curious doctrine of self-defense. And OPR examining whether political appointees knowingly signed off on program wanted by White House officials. If they did it knowingly, it may fall within criminal conduct. We undertake those investigations where there is a predicate. We don’t go off helter skelter.

[Submits Hans vons Spakovsky article claiming this will be a HUAC. I guess Arlen is feeling the heat in PA. Jeebus, I’ve had enough from one-bullet Haggis. He also suggests that because the OLC opinions from Yoo are so bad, we ought to hold up the Johnsen confirmation.]

Feingold (notes he has to go hang with UK’s Prime Minister): Lists the things Obama has done well so far. Please Obama recognizes the need to take these actions. Crucial part is detailed accounting of what the Administration did in the last eight years. Should not settle scores. But also not rule out prosecution. Immunity for low-level participants. How to do this will be part of this hearing. I do support independent committee rather than regular committee. A truth commission is the best way to get the comprehensive story out to the world. Commission of inquiry best way to get facts out, Congress and Administration and public should decide what to do with it. I’d rather see investigative professionals on this commission than policy makers and politicians. 

Pickering: Essential to understand what happened to chart right course. Urge you to support commission. (Only touches on detainee treatment.) This is a critical step in neutralizing our enemies narrative about the abuse of detainees at Abu Ghraib. Only great countries are prepared to look at their most serious mistakes. The US has been, and I believe still is today, that kind of country. Commission should stand above politics. Commission ought to be comprised of person whose duty is to truth. Should operate in public to the maximum extent possible. Should be separate from any investigation of unlawful conduct. Would not preclude prosecution. Purpose would not be proseuction. Subpoena power. Finally, question of immunity. I’m not an expert on this legal issue but I would hope policy makers would consider it carefully. In my view the commission should not have the power to grant blanket immunity or full immunity. Rather, the commission should grant immunity only in limited circumstances. 

Gunn: Involved with officers concerned about serious problems made for men and women by decisions made in Washington. Strained alliances. Confusion about detainee treatment. Exposure to greater risk if captured. Harder to win hearts and minds. We need to understand circumstances under which such choices made. Question is what has happened to us, what did we do wrong, what did we do right. Military examines ourselves often and in depth. [Talking about testimony that is "firewalled" from legal proceedings.]

Farmer: Obvious threshold question is whether an investigation should be conducted. A lot of empathy for those who want to look forward. Time devoted to preparing for testimony can be a burden. The issues touch so much on our identity as a people. In the absence of public fact-finding, people will believe the worst. The decision that Qhatani could not be tried bc he had been tortured. Tactics have compromised our ability to respond to 9/11 conspiracy itself. This elevates detention to one of those areas that touch our identy. What form. One obvious option is criminal investigation. Prosecutions limited appeal: narrowly focused. In absence of mutually accepted fact-finding, may appear to be criminally motivated. Potential targets may be able to invoke advice of counsel. Congressional hearings, highly charged would obstruct any fact-finding. Fact-finding need not foreclose prosecution, may identify prosecution. Composition: independent and non-partisan. Should spell out specific qualifications, professional staff, budget adequate to mandate. If mission defined too broadly, may not be achievable, I believe a focus on Gitmo too narrow. Open-ended too broad. Link to detentions carried out pursuant to AUMF. Compel cooperation. Subpoena power. Trickier is immunity. Given extremely fact-sensitive nature, some form of immunity may be necessary. May jeopardize future prosecution. Finally, product: set for end-product. Broad mandate like 9/11 Commission would not be appropriate. A commission would be separate from criminal, should be able to refer for prosecution. 

Schwarz: How were decisions made. Who was consulted. What were the consequences of our actions. What are the root causes of having gone down this path? Excessive governmental secrecy, limited oversight, among the root theses. I’m of the mind that abandoning our values have made us less safe. That thesis needs to be tested. We have to make sure the next time we don’t make mistakes. Benefits of nonpartisan commission of inquiry. Go far beyond understanding facts. Can help bring all Americans together. Support for rule of law does not divide parties in this country. A commission that investigates facts, puts forward a report, admits mistakes, praises things we did well, can help restore American’s reputation. 

Rivkin: [incoming … Leahy’s intro explains he has said his idea is terrible, then says "welcome"] A commission is a profoundly bad idea, for legal and constitutional reasons. On its face, it appears geared toward policy review. Somewhat discouraged about discourse on this commission. Most commission supporters want to establish a body that would be criminal investigation.

Shorter Rivkin: I’m going to misrepresent what these moderates want this commission to be, so that I can claim it is unconstitutional!! Spinning can be fun!!

Any effort to outsource the power of prosecution is troubling on Constitutional grounds. Too weighty to be outsourced to commissions.

[A Republican opposed to outsourcing!! HAHAHAHAHAH]

Shorter Rivkin:It would be difficult because I know a lot of my buddies will refuse to respond to subpoenas. 

Privacy interest of "targets." [Otherwise known as

Increase likeihood of senior officials being tried overseas.

[Ding ding ding ding–And you really think that’s not going to happen anyway???]

Shorter Rivkin: We can’t have a commission because it’ll be doing the Hague’s work. 

It’s kind of sad that you all don’t care about civil rights of Americans.

[Apparently he has no sense of irony, huh???]

Rabkin: Context. Last summer, a hearing of House Judiciary, pre-impeachment hearing. I don’t think it’s sufficient to view this in moderate way. Lots of people feel vehemently that these are war crimes. Truth Commission: South Africa, Chile. In those countries they had to have those commissions bc the countries were so deeply divided. Peace was really in doubt. We’re not in that situation. If people think there should be prosecutions then there could be prosecutions. Experience of truth commission, considerable success on narrow factual issues. 

[Shorter Rabkin: We should not shame John Yoo.]

Leahy: All the haylofts in Vermont could not create the number of straw men that Rabkin and Rivkin have brought up.

To Pickering. What impact did detainee policies have on foreign policy and national security. 

Pickering: Public opinion, not just in Islamic world, has fallen to a new low. Whether that resulted in recruitment to al Qaeda and Taliban, hard to tell. Not totally irrelevant. Individuals who were privy to Abu Ghraib were deeply offended bc of cultural insensitivity, use of force. A serious and real and major point. Contribued to extreme anti-Americanism. 

Leahy: If the US is seen to doing open review of what happened, does that help or hurt us?

Pickering: I don’t know that we’ll convince the most extreme. Those sitting on the fence would certainly be moved. Great countries don’t often go into deep introspection, but in my view that is the essence of rational action. 

[Here’s my question: everyone is talking about how by reviewing our mistakes we’ll give assurance that we’ve moved forward. What if it’s a sham??]

Leahy: Farmer, al-Qahtani. I get the impression that was a turning point. What would be the benefit of a review.

Farmer: The fact that the tactics we’ve employed now make it difficult to deal with 9/11 itself. 

Cornyn: Unanimous consent to introduce op-eds into record. Woolsey, Schlesinger, some more spooks.

Leahy: Equally impressive people who take an opposite view.

[Leahy’s cranky this morning.]

Cornyn: Thank you for having this hearing. On record of saying an independent unaccountable truth commission is a bad idea.  The idea that this subject can be dealt with in nonpartisan fashion asks us to suspend our disbelief and ignore the over 150 oversight hearings on this. The idea that this is going to overcome our disagreements [unrealistic]. Levin report I disagree with all the conclusions. I don’t believe truth commission is necessary to arbitrate between me and Levin report.

[Shorter Cornyn: I want to be able to disclaim all the crimes, and a truth commission won’t let me.]

To Schwarz: Are you concerned about changing the rules after the fact?

Schwarz: Actual record of Church Committee, director said it helped the CIA. Lawrence Houston said conduct of Congress before Church actually harmed intelligence services. Church Committee said in 1976 that intelligence community should pay more attention to terrorism. Those who say Church hurt intelligence is wrong.

Cornyn: You disagree?

Schwarz: No, they’re wrong. Pike is not Church. 

Whitehouse: to Pickering. We don’t know yet what was done. There has been considerable sentiment express that it is in our interest bc it helps define who we are, helps build credibility, return to rule of law. Is there a point where the conduct in question was so abhorrent to decent people in America, that the public reverses itself. Does there come a point where we should sweep this under the rug. If we must not flinch, must we not flinch irrespective of how painful this will be.

Pickering: I worked with your father. No. I do not believe that any degree of abhorrence should be swept under the rug. The laws on secrecy don’t provide for that [that one is for Mary]. Besides it won’t remain secret in this town. If it indeed took place then it is the duty and the requirement of all branches to make sure it never happens again.

Whitehouse: Farmer. We were AGs together. The issue that a commission is going to face, Cornyn was AG with all of us also. There are obviously some hinderances based on this conduct. Reliance on OLC is one. Some sort of theory of equitable estoppel. In each of those areas, they’re of limited protection. A mobster can’t paper over racketeering with lawyer.  Immunity will be significant question. How should the relationship be described in any legislation that would form such a committee? Sign off from AG? You want it to steer clear of prosecution, not trampling prosecutve strategy.

Farmer: Will be driven by scope. If it’s drawn too broadly, including whether these tactics make us less safe, the commission will lose credibility bc you’ll have to prove a negative. Immunity is going to be an issue. My suggestion would be formal coordination with DOJ. Depend on scope. 

Leahy: On immunity, to follow up on Church, had the authority to grant immunity but uncovered a lot of illegal activity without ever granting that immunity. Hundreds of witnesses admitted to acts that could have led to prosecution. Nobody asked for immunity. High level people don’t want to, low level understand they’re not going to be prosecuted. 

Farmer: Should take off prosecution for low level people. 

Leahy: If we don’t go above corporal and sargeant, always worried about effor to go after minor players. Justice working on the issue you raise. More concerned about those who made the decisions to say that if the WH gives a directive to break the law, you’re not breaking the law. I’d like to know why we had people who felt that the President could be above the law. 

To Gunn: Affect of torture on national security interest?

Gunn: Refrain from spreading experience too broadly. I think the effect on military men and women has been profound. Young Americans don’t join the military with the expectation that they’re going to be asked to violate their own principles. 

Cornyn: [Let me give Rivkin his soapbox now] Gunn says will improve cooperation. Do you agree or will it make our foreign allies more skittish?

Rivkin:  I do not see how going through another self-referential and self-absorbed exercise. I disagree with the narrative that has been applied to the Bush Administration–that it has been guilty of abuses–is false. The conduct has been exemplery. Abuse of detainees per thousands captured. I don’t see that at all. It’s not what we’re supposed to do as a country.

[Note, he’s not addressing the question!! Cornyn set him up to answer a question about allies and he couldn’t respond. Time to get smarter shills, I guess.]

Cornyn: to Gunn. Congress has played some role in trying to deal with subjects. Detainee Treatment Act. Wouldn’t you agree that Congress has been involved in oversight. Why necessary to delegate our investigative function?

Gunn: I agree that Congress has been involved and has done things that have helped, and some things where efforts were thwarted. McCain amendment, was successful in Congress and not successful in the White House. Don’t get me wrong when I say that the govt as a unit owe to the people in the field.  Clear directions have been missing in very important ways. To the issue of whether we should have a commission, I have no informed legal opinion. I’m advocating that we get to the bottom. What’s missing in the inquiry could identify what went right. 

Whitehouse: Rivkin. You raise the gallery of horribles that might go wrong. If you assume that the purpose is advisory in policy only. If you assume that criminal law enforcement is properly cabined in Exec as it should be. If you assume coordination on issues like immunity. And if it is set up not as private entity but as delegated Congressional oversight authority. Still oppose, even in the absence of parade of horribles.

Rivkin: This assumes too much. To me law enforcement function has variety of aspects. Ultimate decision to proceed with prosecution. 

Whitehouse: no one is suggesting otherwise. 

Rivkin: Deciding as threshold determination whom to investigate.

Whitehouse: We do that in COngress every moment.

Rivkin: RIght in Congress.

Whitehouse: Right to delegate.

Rivkin: I do not beleve it is readily delegable.

Whitehouse: Now you use another hedge word. Properly appointed commission.

Rivkin: Appointments clause? If you could configure commission that makes it an extension of Article I branch. I don’t see how you can delegate oversight responsibility. If it walks like a duck and talks like a duck. WE’ve heard today about criminal investigation, PIN does, on 12 or 14 people, then passes the buck to PIN in public spotlight. If this were contemplated in different context, every law professor would be screaming about it.

Whitehouse: Every law professor? I’m trying to get an unhedged phrase out of you.

Rivkin: If Bush Administration had done an investigation on charitable organizations? 

Whitehouse: organized criticism is an offense against their civil liberties.

Rivkin: Looking at individual criminal liability.

Whitehouse: nonono.

Rivkin: there’s no way to cabin this. How are you going to come up with analysis of two or three members of Administration. If you said Mr A committed torture, that reads like doc that AUSA sends to his boss.

Whitehouse; My time has expired. Until you know and we all know what was actually done, do not be so quick to throw other generations under the bus and assume they did worse. 

Leahy: Rabkin: Do you want to add? Other side of the aisle to say somethign further.

Rabkin.  We’re speaking about a hypothetical. 

Leahy: In my time here, that’s the way we do it.

Rabkin: Difficult to address proposal that is not well-defined. It’s one thing to try to find specific fact. What was the worst thing done to someone in American custody. I’m not sure that’s secret. Different than making assessment of causes and consequences. You’re getting into how security should have been differently conducted. Too much of a commission. Putting aside whether civil liberties or constitutional difficulties. I think we’re not that kind of country.

Leahy: we cannot find someone at White House, directs someone to break the law, putting people’s names into databases where their jobs are affected. That is done in violation of specific statutes, we shouldn’t ask that question.

Rabkin:USAs should ask those questions.

Leahy: We’re beginning to see why we’re stonewalled. Conservative and liberal say they’re terrible. Who said "break the law" and why. 

Rabkin: What you just talked about seems to have nothing to do with allegations of torture at Gitmo.

Leahy: If you violate Constitution in wiretapping, if you violate law on torture, if you then have people come before Congress and lie about it, they’re all part of the same mix. Others have said, let’s turn the page, fine. But read the page before you turn it. I’m well aware of hearings in other committees. We will continue to ask questions in this committee. I want the American people to see something that’s outside the political arena.

Rabkin: If you do connect the dots you can draw a very disputable picture. What was the root cause of all of them? And it’ll be something like, Bush obsessed with terrorism. It’s bound to be extraordinary polarizing.

Leahy: I’d like to ask the questions and see what the answers are. 

Rivkin: The very examples you used cleave your test. This commission cannot avoid making judgments about a small circle of people. That is not what a commission can do. Genius of Constitution cannnot proceed with non-Constitutional channel.

Leahy: 9/11, Watergate?

Rivkin: Of course not! 9/11 had no mandate to go after people. Circumstances of how this have been driven make it a criminal prosecution.

Leahy: I will have the last word, one of the advantages of being Chair. If criminal conduct occurred, this Senator wants to know about it. If crimes are committeed we don’t sweep them under the rug. 

As we’ve been discussing, DOJ released nine previously unreleased OLC memos yesterday, two of which were Steven Bradbury memos basically saying, "oops, no harm no foul!!"

But they’ve still just released 5 of the 41 memos that the ACLU has requested in FOIA proceedings (as well as two that were not on that list, plus Bradbury’s two "no harm no foul" opinions). Where are the other memos? Why weren’t they released yesterday? Is it because they’re still active (and supporting torture and illegal wiretapping and whatnot??)

The question is especially pertinent given a few things Bradbury said in his January 15, 2008 "no harm no foul" opinion.

The Commander in Chief Is Only Sort Of Bound By the Law

To dismiss several opinions authorizing torture, Steven Bradbury quotes at length responses he made to Teddy Kennedy in 2005 when he still had hopes of becoming OLC head.

The federal prohibition on torture … is constitutional, and I believe it does apply as a general matter to the subject of detention and interrogation conducted pursuant to the President’s Commander in Chief authority.

[snip]

The President, like all officers of the Government, is not above the law. 

He goes on from there. But then, in a passage not included in his responses to Kennedy (that is, a passage unique to this memo) he says, 

We recognize that a law that is constitutional in general may still raise serious constitutional issues if applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II.

To Teddy Kennedy: The torture ban is constitutional and the President is not above the law.

To the file earlier this year: … unless "applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II."

Psych!!

We Remain Noncommittal about the President’s Authority to Suspend Treaties

And then, in his discussion about whether or not the President is above the law, Bradbury cited a 2007 OLC memo (which we didn’t get yesterday), to say that OLC had not yet weighed in on whether the President can suspend treaties.

The above critique is not meant to be a determination that under the Constitution the President lacks authority to suspend treaties absent authorization from Congress, the text, or background law. The White House did not directly ask that question … and we did not purport to resolve it.

The Loopholes Remaining and the Outstanding Memos

Now, I consider these Bradbury comments very troubling given the memos that DOJ did not turn over.

For example, there are a series of memos from late 2001 and early 2002 that address the Geneva Conventions, OLC/DOJ/AG/State authority to "interpret" treaties, and possible "interpretations" of Article 3 of the Geneva Convention. Plus, there’s one from July 2002 and two from late 2003 on the "applicability" of the Convention Against Torture and the Geneva Conventions. So while Bradbury’s public opinions suggest OLC has never ruled on whether or not the President can suspend treaties, it’s clear that DOJ is still hiding a great deal of discussion about how the President can "interpret" treaties and decide whether treaties are "applicable." And, of course, there’s a giant loophole still in place regarding the question that–per Steven Bradbury–OLC has not "resolved."

But there’s another, more pressing reason why I’m disturbed about what we got and what Steven Bradbury said in his 2009 "no harm no foul" memo. 

In that memo, he reproduced a statement that he–Steven Bradbury–made to Teddy Kennedy at a time when he was angling for a promotion to head OLC, which made it seem that he–Steven Bradbury–absolutely believed the President had to abide by Congressional laws prohibiting torture. Then, in his memo from this January, he seems to dramatically limit the statement he made publicly to Kennedy–as much as saying the President is not above the law unless laws have been passed to "frustrate the President’s ability to fulfill his essential duties." The "Presidential frustration" loophole (as I’ll call it) is enough to raise some concerns. 

But even more so when you consider two of the other memos that have not been turned over–Steven Bradbury’s own March 2005 memos, memos he wrote as an audition to try to convince David Addington he’s make a good head of OLC. The memos have been reported as re-authorizing the torture approach that Jack Goldsmith had withdrawn in 2004.

In other words, the memos released yesterday do as much to point to the loopholes that they’ve exploited to be able to keep torturing as they reveal any big reversal from those policies.