I want to make another point about the Vaughn Index relating to OLC’s advice to the CIA. Document 13 and 14 (early March discussions between DOD and OLC on interrogation) have been referred to a third agency because–as DOD documents–it is not CIA’s place to decide whether to declassify them or not. Basically, DOJ is saying, "oops, these aren’t CIA documents, they’re DOD documents, so DOD needs to deal with this."

Fair enough.

But look at document 16. By date and length, we can say with some certainty that that document is the March 14, 2003 John Yoo memo for DOD (though note, the draft in the Vaughn Index is 80 pages, whereas the final is 81 pages).

DOJ does not say–as they do with the other DOD documents–that they have referred this to DOD for processing. Rather, they withhold it–with no consultation with DOD, apparently–by labeling it pre-decisional. Here’s how they describe it:

This is an 80-page draft OLC opinion to DOD consisting of draft advice regarding interrogations of alien unlawful combatants held outside the U.S., to include handwritten notations.

It appears that the reason they don’t have to refer this to DOD is because they’re withholding it for the deliberative value, and that comes–at least in part–from those hand-written notations.

Now, I find that interesting for two reasons.  First, look at Document 15. It’s a 2-page (plus fax cover sheet) memo, dated March 7, 2003, from CIA’s Office of General Counsel to OLC asking for legal advice on detainee interrogations. March 7 is the day after Khalid Sheikh Mohammed’s torture began in earnest, so it’s possible that memo pertains to KSM (though that’s just a guess). Let’s just say I find that timing interesting.

Then there’s the suggestion–based on the fact that DOJ has not referred this to DOD for processing–that the notations on the March 14 Yoo memo came from someone at CIA. Is it possible that War Council member John Rizzo was helping Yoo write the March 14 DOD memo?

The whole thing–particularly the inclusion of a number of DOD documents in a CIA-related Vaughn Index completed under Steven Bradbury–suggests that DOD was not only reverse engineering its torture for CIA, but CIA was returning the favor by providing advice to DOD as it developed its own torture regime. 



Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.