David Addington did approve of cruel CIA interrogation techniques

So far Dick Cheney’s notorious former legal counsel and confidant, David Addington, has managed to maintain the pretense that he was not directly involved in authorizing the use of torture and cruel or degrading treatment of prisoners under the Bush administration. Now we have documentary evidence of his direct involvement.

The very right-wing Judicial Watch has just released a batch of CIA documents it obtained through a FOIA request. Judicial Watch is seeking to embarrass congressional Democrats by showing that the CIA briefed them under Bush about the abusive interrogation methods. Whether or not the documents actually manage to embarrass those Democrats, one of them does embarrass Addington.

Here they are (PDF). One formerly classified memo from February 4, 2003 summarizes a CIA briefing given to Sen. Roberts and the staffers for Sen. Rockefeller regarding the ongoing abusive CIA interrogations of terrorism suspects. It reads in part (my emphasis):

The enhanced [interrogation] techniques were described in considerable detail, including how the water board was used. The [CIA] General Counsel described the process by which the techniques were approved by a bevy of lawyers from the NSC, the Vice President’s office and the Justice Department, including the Criminal Division and the Attorney General, who opined that the techniques were legal under U.S. law.

The Vice President’s lawyer is almost certainly Cheney’s eminence gris, David Addington.

In the past Addington has frequently been linked to the development of torture and abusive techniques. But none of these allegations have been documented and Addington has denied or evaded the charges.

In 2004 Newsweek’s Daniel Klaidman reported (the original link evidently is defunct) that aides to presidential counsel Alberto Gonzales said that it was Addington, not Gonzales, who drafted the January 25, 2002 memo that argued some provisions of the Geneva Conventions were “quaint” and “obsolete”. Addington continued for years to lead the fight in denigrating the applicability of the Geneva Conventions, so he may well have been involved in drafting the January 25, 2002 memo.

Addington also reportedly played a key role in shaping the August 1, 2002 Bybee Memo authorizing a list of abusive interrogation techniques, including waterboarding - which plainly was treated as torture under established US law. The recently released OPR final report into misconduct by the DOJ torture memo authors (especially John Yoo and Jay Bybee), focuses at length upon revisions to the draft Bybee memo that seemed to be requested in July 2002 by Addington and Gonzales. The OPR report highlights what appears to be an elaborate attempt by Yoo, Bybee, Jennifer Koester (another unindicted torture memo author), and others in the Bush administration to cover the tracks that led back to the direct involvement of Gonzales and Addington in shaping the Bybee Memo. I’ll write more later about this episode because it is critical, I believe, to understanding why David Margolis rejected the OPR’s finding that Yoo and Bybee engaged in misconduct. Suffice it to say here that the apparent attempt by Yoo and others to shield Gonzales and Addington from any direct responsibility for the Bybee Memo involves a series of bizarre and incredible assertions, laid out by OPR at pp. 46-53. Among other oddities, nobody from DOJ or the White House who attended a critical July 16, 2002 meeting to discuss the draft memo can remember what Gonzales or Addington said about it, even though that meeting immediately preceded the most controversial additions to the memo.

Philippe Sands has also reported that Addington was part of a high-level delegation (which also included Gonzales) that visited Guantanamo prison in September of 2002 and pressured the military there to introduce more abusive interrogation techniques.

With the help of friends over the years, Addington issued dismissive and vague denials that he was directly involved in drafting or shaping any torture memos or advocating for specific abusive practices. When called to testify before Congress about his activities, Addington was snidely dismissive of questions and frequently evasive. He did however deny that he pressured anybody at Gitmo in 2002 to adopt abusive techniques. Addington also insinuated that he made no suggestions to the OLC lawyers at the July 16, 2002 meeting. In response to their briefing about the draft Bybee Memo, Addington claims, he said nothing more than “Good” before sending them on their way.

In short, until now David Addington has managed to bob and weave, obfuscate and deny every time he has been implicated in direct involvement in shaping or authorizing torture and abuse of prisoners. Now however we have a CIA document that says the Vice President’s lawyer approved of the “enhanced interrogation techniques” being used by the CIA at the start of 2003.

Say so long to plausible deniability, David.

crossposted at unbossed.com

Is honesty a “known, unambiguous obligation or standard”?

The final Justice Department assessment of the professional conduct of the torture memo authors (PDF) has been dumped released unceremoniously this Friday afternoon. The assessment is not posted, nor is there a press release about it, at the DOJ website.

The draft report(s) by the Office of Professional Responsibility had found John Yoo and Jay Bybee guilty of misconduct – rather remarkably, given that OPR investigations of wrongdoing by Justice Department officials almost always lead nowhere. However, as anticipated (see here), in its final assessment the DOJ softened the draft (OPR) findings to the point that Yoo and Bybee were found only to have exercised “poor judgment”. Absent a finding of misconduct, they will not be disbarred or in Judge Bybee’s case, face impeachment. Indeed it looks like there’ll be no penalty at all for having given the green light to the torture and abuse of prisoners in US custody.

David Margolis, an associate deputy attorney general, is the man who decided to let Yoo and Bybee off with a slap on the wrist. His reasoning? Essentially he argues that “a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney’s conduct. I am unpersuaded that OPR has identified such a standard.”

I’ll have more to say later about this final assessment and the politics behind Margolis’ decision once I’ve digested the whole thing. For now, I’ll simply note that Margolis (who is said to be extremely sensitive to which way the political winds are blowing in DC) is talking through his hat here. The memos generated by Yoo and Bybee are rife with gross inaccuracies and demonstrable falsehoods. Is it not a known and unambiguously accepted standard that attorneys are obligated to be honest and scrupulous in their representations of law and jurisprudence? At a minimum?

To cite but one example, which I reported on here last August, John Yoo falsified what the UN Convention against Torture says in his memo from April 28, 2003. In that memo, Yoo claimed that …

"the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment or punishment] in exigent circumstances, such as a national emergency or war."

Yoo’s memo added no qualifications, no evidence, no citation, and no argument to justify that statement. The statement is absolutely false, as I documented in my post last August. In other words, Yoo lied in order to provide the Bush administration with a back-door justification (“national emergency”) for torture where none exists legally.

Whatever else one may think of the dubious propositions advanced by Yoo in that memo, it could not possibly be any clearer that he has engaged in misconduct in this instance.

Why does David Margolis not recognize honesty and factual accuracy as an unambiguous obligation for Justice Department attorneys?

Update: In his assessment of the OPR report, Margolis does in fact get around to the question of honesty - admitting that professional rules obligate DOJ attorneys to refrain from provinding to a client advice that is knowningly or recklessly false or issued in bad faith. Their legal work also must be competent.

Nevertheless, Margolis goes on to consider and dismiss all the evidence that the OPR report assembled to show that John Yoo's work to justify the torture and abuse of prisoners was incompetent and knowingly or recklessly false or issued in bad faith. It's a tour de force of seeing-no-evil. I simply cannot imagine how any candid investigation of John Yoo's legal output could avoid the conclusion that he knowingly falsified both law and case law in the baddest of faith.

crossposted at unbossed.com

The OPR’s Torture Memo report will be an assault on the rule of law

According to Newsweek’s Michael Isikoff and Daniel Klaidman, the DOJ’s Office of Professional Reponsibility (OPR) is about to release an investigation that lets off the 2002 Torture Memo’s authors, John Yoo and Jay Bybee, with no more than a mild rebuke.

The report originally criticized them strongly for misconduct in producing that brief for torture with reckless disregard for legal precedent. But Bush’s Attorney General, Michael Mukasey, didn’t care for that finding. First he and then Eric Holder allowed the CIA to weigh in on the OPR draft report, whose criticisms of Yoo and Bybee were then toned down radically.

Reportedly the final draft will charge them only with showing “poor judgment”, a finding so flaccid that it does not even require a DOJ referral to state bar associations for disciplinary action against Yoo and Bybee. Bybee, a federal judge, could have faced impeachment.

The dumbing down of the findings clearly have politicized the OPR report, which is remarkable given that Yoo and Bybee stand accused of tailoring their legal opinion to suit the wishes of top Bush administration officials. It amounts to another searing searing indictment of the Holder Justice Department for failing to hold any high ranking officials accountable for the torture of prisoners under the Bush administration.

Perhaps worse, it encourages future presidents to develop further the Bush administration’s diabolical experiment in indemnifying government officials against gross lawlessness. What Bush’s lawyers were busy doing in the aftermath of 9/11, essentially, was generating junk legal opinions as a smokescreen behind which the CIA and others could operate with impunity no matter how egregiously and transparently illegal their activities. If they were ever threatened with prosecution, they could claim that they acted in good faith based upon these (junk) opinions. Now the OPR, by failing even to recommend that Yoo and Bybee be disbarred for their handiwork, is about to wink at that practice. It’s an assault upon constitutional democracy.

I’ll have more later on this subject. In particular I wish to highlight something that appears to be overlooked in commentary so far. That is, the revision of the report shields not only Yoo and Bybee, but also Alberto Gonzales and David Addington. It may well be that protecting the latter two (and thus their patrons, Bush and Cheney) was the main object in blunting OPR’s findings.