Yoo climbs down from his cross

Showing the same poor judgment that informed virtually every sentence of his perverse OLC output, John Yoo decided to go into print with this deliciously self-pitying tribute to his own martyrdom at the hands of an unappreciative world. It turns out that Yoo has not been doing the rounds for the last several years trying to defend his shoddy legal work under the Bush administration in order to retrieve his own shattered reputation. No, his motives, he assures us, have been pure and selfless. Yoo was intent instead on saving the Obama presidency by “winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe”.

Yep, what with all those OLC memos of his that have been withdrawn, renounced and subjected to ridicule, Yoo single-handedly saved a president who nonetheless turned on him and hounded him - by viciously “letting loose” an investigation that began under Bush, and, oh yeah, allowing his Attorney General to investigate everybody else except Yoo’s complicity in torture. Don’t you just hate when that happens?

Actually, Yoo is far too modest in his claims. His legacy to America is much greater and can’t be circumscribed by the term of a single presidency. No, as I commented last month, his gift to constitutional democracy ultimately is the Justice Department’s refusal to punish Yoo and his OLC cohorts for having indemnified government officials who engaged in egregious lawlessness and human rights abuses. Yoo has worked to guarantee that every president in the future may violate clearly established law with impunity for himself and his assistants, by the simple device of hiring unscrupulous lawyers to produce the necessary advice, however preposterous, sufficient to shield the wrongdoers from future prosecution. Call it an all-out assault on the rule of law. It’s quite a legacy, and worth coming down from one’s cross to receive our thanks and plaudits.

And that’s quite a cross Yoo has going there for him. He’s determined to settle scores with any who dare to investigate him, especially the ethics officials at OPR who produced a scathing report last year on Yoo’s torture memos. One paragraph in Yoo’s WSJ op-ed is unusually…instructive.

Rank bias and sheer incompetence infused OPR's investigation.

Self-awareness was never John Yoo’s strong point.

OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR's preferred outcome.

This from the man whose memos famously omitted to discuss any number of precedents that undermined the Bush administration’s preferred outcomes.

They declared that no Americans have a right of self-defense against a criminal prosecution, not even when they or their government agents attempt to stop terrorist attacks on the United States.

Umm, no, OPR did not do that.

OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president's commander-in-chief power.

No they didn’t.

They accused us of violating ethical standards without ever defining them.

No, they didn’t.

They concocted bizarre conspiracy theories about which they never asked us, and for which they had no evidence,

No they had plenty of evidence, though admittedly they might have had a good deal more if Yoo had not deleted and expunged all record of so much of his email correspondence.

even though we both patiently—and with no legal obligation to do so—sat through days of questioning.

Whoops, back up on his cross.

Anyway, this op-ed is worth drawing attention to if only because of the accompanying illustration. Notice how Uncle Sam is hampered in his self defense by the scales of justice. So I guess it’s alright to throw those out now.

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

Cheney is afraid of the DoJ torture investigation

You might reasonably have surmised that Dick Cheney fears where an investigation into the torture and mistreatment of terrorist suspects could eventually lead. Until now Cheney has restricted himself to lying about the effectiveness of the CIA and DoD interrogation programs, claiming to know decisive information that remains classified, and denouncing those who seek to investigate the government officials who abused prisoners under the color of law. But now we have some direct evidence of how rattled Cheney has become by Attorney General Holder's decision to initiate what is after all an extremely limited investigation. Its scope currently is limited to the CIA interrogations that employed even more abuse than the torture memos had actually authorized.

In an interview that will be aired on Sunday, Cheney made a couple of really remarkable statements according to McClatchy's Warren Strobel. First, Cheney endorsed the behavior of CIA officers who blatantly ignored the restrictions placed upon interrogators by government lawyers. This only a few days after the release of a 2004 CIA Inspector General report that revealed lurid details of prisoner abuse! Cheney had to know that he would be derided and denounced for coming out in favor of such things as mock executions, promises to rape and murder the family members of suspects, and threats with a gun and electric drill.

And secondly, Cheney rather transparently tried to build distance for himself with regard to the use of waterboarding, for which he has been the most vocal public advocate since at least 2006 (his original endorsement of waterboarding was a story broken here at unbossed). Cheney wants us to believe that though he was aware of the existence of the practice in general, he wasn't informed about any particular applications of waterboarding to specific prisoners. This even though reams of evidence have accumulated that interrogators who employed waterboarding were in very regular contact with CIA headquarters, and that the White House was deeply interested in the progress of those particular interrogations to the point of asking for multiple updates for days on end!

Here is how Strobel describes the Cheney interview:

Cheney, who strongly opposes the Obama administration's new probe into alleged detainee abuse, was asked in the Fox News interview whether he was "OK" with interrogations that went beyond Justice's specific legal authorization.

"I am," the former vice president replied.

"My sort of overwhelming view is that the enhanced interrogation techniques were absolutely essential in saving thousands of American lives and preventing further attacks," he said. "It was good policy. It was properly carried out. It worked very, very well."

[...]

Cheney said in the interview with Fox's Chris Wallace, according to a transcript, that he was aware of the waterboarding, "not specifically in any one particular case, but as a general policy that we had approved."

What Cheney fears is pretty obvious. First, he believes that the investigation into a few CIA officers who scandalously flouted the torture memos' rules for coercive interrogations could provide the sharp edge that might pry open the whole sordid program of systematized abuse and expose it to judicial and public scrutiny. It was a program that Cheney apparently sponsored and helped to design.

Secondly, Cheney fears that he could then become a target of investigation. He is especially vulnerable to prosecution because of the close interest he took in the most abusive interrogations. One might be able to persuade a slightly gullible grand jury that the "conditioning" or "exploitation" of prisoners (hypothermia, for example) does not constitute torture. But waterboarding universally has been considered torture since at least the times of the Great Inquisition. Cheney seems to think now that he needs to build a case that he was no more aware of actual instances of waterboarding than anybody else who was briefed on the CIA program.

Cheney may also be aware that his likeness has now been put on one of the "Torture Team" playing cards that the Center for Constitutional Rights has created ("Collect and prosecute them all"). He's in the big leagues now.

crossposted at unbossed.com

Purpose redacted

Among the documents that the ACLU forced the government to release is this CIA guide to its use of abusive rendition and interrogation techniques from late 2004 (PDF). It acknowledges that the goal of these processes is systematically to condition the prisoners into a state of "learned helplessness and dependence". And this in a document faxed to the Justice Department. By summarizing these abusive techniques in clinical fashion, the CIA has fashioned a deeply horrifying record of what it became under George W. Bush, one that in the past we might have associated with the Stasi's files.

Perhaps the most remarkable thing about this repulsive document is one of the many redactions. In the second (?) paragraph, the CIA describes the purposes of its interrogations of terrorist suspects at "Black Sites" (its term). At least one of those purposes is redacted. In other words, the purpose remains classified! This is one with the evolving series of justifications that the CIA has offered over the years for the interrogation program. It cannot decide quite what it wants the rest of us to believe was the ultimate rationale for treating prisoners in ways that plainly are unAmerican.

Here is what remains unredacted of the CIA's rationale for the abusive interrogation program:

The purpose of interrogation is to persuade High-Value Detainees (HVD) to provide threat information and terrorist intelligence in a timely manner, to allow the US Government to identify and disrupt terrorist plots [... redacted line]
[...] and to collect critical intelligence on al-Qa'ida [... 4 lines redacted]

[...] In support of information previously sent to the Department of Justice, this paper provides additional background on how interrogation techniques are used ...

Thus at least one of the stated purposes has been redacted here. That is a silent demonstration of what many have suspected all along, that under George Bush and Dick Cheney abusive interrogations were a policy in search of a rationale. Were they about obtaining intelligence from captives while it was still most current? Disrupting as many plots around the world as possible? Learning about Al Qaeda? Or some of the other reasons that have been proffered in the past? Identifying and arresting further terrorists? Building cases for prosecuting terrorist suspects? Fear of an imminent attack upon the US? Or just showing that the US was determined to 'take the gloves off', in Cheney's phrase? Even at this late date, the CIA can't bring itself to say.

As the ACLU's Alexander Abdo said to Greg Sargent, "This is the most detailed description provided by the CIA of its rendition program to date... It confirms accounts provided by victims of rendition.”

Those prisoner accounts of their experiences during extraordinary rendition flights and flights to Guantanamo prison, as I've remarked here repeatedly, go back to the beginning of 2002. Hence the earliest accounts predate by several months the attempts by the Bush administration lawyers to generate torture memos to justify retrospectively all manner of mistreatment of terrorist suspects, from "conditioning" to "coercion", that were already in common use around the globe. As the prisoner accounts show, the mistreatment had been systematized from the outset – very much in the manner described in this CIA memo (which has a section describing methods to be used in the capture and transfer of prisoners on rendition flights).

This fact leaves a great many Bush administration officials, including the authors of those egregious memos, exposed to prosecution for ordering or abetting torture and abuse of prisoners. They had relied upon legal memos to function as 'get out of jail free' cards, under the pretense that everybody from the White House down to the actual interrogator were just following the advice of the administration's lawyers. But much evidence has accumulated that that advice was cooked, with administration officials soliciting exactly the opinions they wanted and playing footsie with lawyers until the desired advice was forthcoming.

The Bush Administration claimed that Justice gave legal advice to the CIA and that the CIA followed and applied it. But the IG report reveals a strikingly different relationship. As the OLC memos were written, there was a sort of waltz between CIA and Justice lawyers in which different hypotheticals were offered up in solicitation of opinions—something on the order of “If we told you we did x, what would you say about it?” This suggests the OLC memos were effectively negotiated. It also appears that CIA requested a number of after-the-fact variations to protect practices that clearly exceeded guidance. Why does this matter? It undermines the ability of CIA employees and contractors to “rely in good faith” on the OLC memos, because it shows that OLC wasn’t really giving legal advice. Instead it was issuing “get out of jail free” cards. A good example comes with waterboarding: “With respect to two detainees at those sites, the use and frequency of one EIT, the waterboard, went beyond the projected use of the technique as originally described to DoJ. The Agency, on 29 July 2003, secured oral DoJ concurrence that certain deviations are not significant for the purposes of DoJ’s legal opinions.”

Now it is even clearer that the advice was several months too late to justify practices that had already been worked out, systematized, and put into practice. That reinforces the interpretation that the legal opinions were cooked, and thus that those implicated in the prisoner abuse cannot now claim that they were relying upon legal advice that they assumed in good faith to be reliable.

In fact, the 2004 CIA Inspector General's report on terrorist interrogations shows conclusively that many within the CIA did not believe that the official policies were legal. It reports that CIA officers feared and indeed assumed that they would be subject to investigation and prosecution for engaging in torture and abuse. Some CIA officials took a strong stance against the program on the grounds of its illegality.

The Inspector General’s review was launched by complaints coming from valued senior employees who felt that the Bush Program (as John Yoo has dubbed it) was wrong. One of them actually expresses his worry that those involved will be hauled before the World Court at some point because of [and that’s redacted!] This makes clear that good employees of the agency opposed the Bush Program, were vocal in their opposition, and focused concern on the program’s illegality. The OLC memos were intended to silence these complaints, but they only accentuated the agency’s morale problems by enmeshing it in obviously illegal and immoral conduct. By contrast, the number of CIA personnel involved in pushing it through and supporting it is tiny—probably not many more than two dozen—though their voices are heard very loudly.

crossposted at unbossed.com

Another Bush administration legal fiction

The ACLU finally has managed to force the Obama administration to release a less severely redacted version of the May 2004 report on the CIA's abusive treatment of terrorist suspects (PDF). The report was done by the CIA's Inspector General, John Helgerson, and (to judge by what remains unredacted) seems to be fairly critical of those abuses and of their legal underpinnings. There's plenty to say about the contents of this report – for example, the bizarre tortures it catalogues (summarized here).

One thing stood out in the early pages of the document: Bush administration lawyers wrote an undated memo sometime before June 16, 2003 which among other things advanced a flagrantly false interpretation of the UN Convention against Torture.

That memo, "Legal Principles Applicable to CIA Detention and Interrogation of Captured Al Qa'ida Personnel", does not appear to be publicly available yet. It was drafted by lawyers at the Justice Department's Office of Legal Counsel (almost certainly John Yoo) and then finalized by the CIA Office of General Counsel. Here is what the Helgerson report states the memo said about the UN Convention:

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

The UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment says no such thing. The OLC/OGC lawyers evidently were insinuating that the Convention drew a very major distinction between the prohibitions against torture on the one hand, and against cruel, inhuman, or degrading treatment on the other. Article 2 of the Convention states explicitly that there are no circumstances that may be used to justify torture:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

It is true that the Convention does not repeat the Article 2 statement when it later discusses "cruel, inhuman, or degrading treatment". However that discussion (in Article 16) is extremely brief and to the point: that governments should prevent 'cruel etc. treatment' as they do torture and should give its victims the same legal recourse as victims of torture. There is no implication whatsoever in the Convention that "exigent circumstances" permit the use of cruel, inhuman, or degrading treatment.

Indeed, the US wrote the following to the UN Committee against Torture ten years ago regarding its implementation of the Convention (Report of the United States to the UN Committee against Torture, October 15, 1999, UN Doc. CAT/C/28/Add.5, February 9, 2000, para. 6):

No exceptional circumstances may be invoked as a justification of torture. US law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension.

So, when do the torture memos written by John Yoo and friends rise beyond the level of bad lawyering and into the much shadier territory of deliberate falsification for the purpose of facilitating, enabling, or encouraging torture? Because at that point I'd think even the timid Eric Holder's Justice Department would be forced to prosecute them.


crossposted at unbossed.com

WSJ: Obama set to reverse himself on criminal interrogations

Last year while campaigning candidate Barack Obama used to boast about a law he helped to enact in the Illinois state legislature, which required all police interrogations to be videotaped. This mandate of transparency, he said, would discourage abusive interrogation practices in the future and serve to hold accountable any public servant who dared to engage in them. Today, however, Evan Perez and Siobhan Gorman of the Wall Street Journal report that President Obama is on the verge of ordering the Justice Department to block the disclosure of evidence of extremely brutal interrogations – on the grounds that it would be too embarrassing for the public to see quite how abusively government employees behaved.

The three videotapes in question, from 2005, show the interrogations of multiple suspects (none ever charged with any crimes). Officers inflicted a variety of diabolically clever forms of torture on them as well as plain old physical brutality. For example, one preferred method of "interrogation" was to bang a suspect's head against the wall repeatedly.

Although the Justice Dept. wishes to publish the tapes, in compliance with an ACLU lawsuit seeking their release, some of the wise establishment types surrounding the new president reportedly are urging him to reverse his earlier position on transparency, accountability, and the rule of law. Their reasons?

According to the WSJ, they argue that release of the tapes would hurt the government's credibility, hand a propaganda victory to America's enemies, and alienate some officers - who might not be willing in the future to engage in such practices if their recent misdeeds are not concealed. As one government official commented anonymously, making public the details of government wrongdoing would make officers "disinclined to take any risks in the future."

And there you were thinking that the whole point of exposing criminal deeds was to disincline people from repeating them in the future.

A tip of the hat to Milo for alerting me to the WSJ report.