Mukasey in the Middle
Now that the Office of Professional Responsibilty (OPR) report (Report) on the rather ambiguously defined subject of the “torture memos” has been released, the problems with the report and with the whole process surrounding the report are becoming more and more evident. Bmaz has provided, here, a wonderful look at one of the many issues that affect the validity and credibility of the Report, while EW is putting up posts too numerous to link, discussing the impact of the information in the Report and the strange and almost hypnotically circular reasoning used by the lawyers for Bybee and Yoo.
Another document that has been made public to coincide with the release of the Report was leaked by Andrew McCarthy at National Review Online. That document is a “letterandum” from then Attorney General Mukasey and then Deputy Attorney General Filip to the then head of OPR, H. Marshall Jarret.
In this letter, Mukasey expresses concern that:
… the Draft Report relies on commentary from others to substantiate the Memorandum’s errors, but does not contain sufficient information to allow the reader to evaluate these sources readily
That complaint – that some additional information is needed to evaluate “sources” of input into the OPR process, is a valid observation. So to meet that concern, here is some additional information about the sole source – Mukasey himself – who blocked review of the Bradbury memos.
Former AG Mukasey has had a long standing involvement with the fruits of the Executive branch torture program and with Jose Padilla, the plaintiff in a currently pending lawsuit against John Yoo and others.
Mukasey first became involved with Padilla on May 8, 2002 while Mukasey was a sitting District Court Judge for the Southern District of New York. The Department of Justice came to Mukasey with an affidavit signed by FBI Special Agent Joseph Ennis. The Ennis Affidavit used statements from two sources, now known to be Abu Zubaydah and Binyam Mohamed, to make the case for the detention of an American citizen, Jose Padilla, as a material witness. No grounds for a criminal arrest was alleged. At the risk of being redundant with many other posts, here is some background about Abu Zubaydah and Binyam Mohamed, as they relate to the Ennis Affidavit.
Abu Zubaydah (the subject of the August 2, 2002 Yoo Memorandum) had been captured on March 28, 2002. While the CIA and DOJ in two administrations, with an assist from the media, continue to misrepresent the date of Yoo’s memo, August 1, 2002, as the “start date” of OLC legalized torture, this site is replete with post after post by EW ( and her points have been reinforced by the Congressional testimony of former FBI agent Ali Soufan and by citation to released documents) that the torture and coercion of detainees began much earlier.
“SERE psychologist” James Mitchell arrived in April, 2002 to assist in the interrogations at the Thailand based black site where Zubaydah was being held. FBI agent Ali Soufan had previously developed an interrogation relationship with the mentally ill Zubaydah and had been receiving information from him without the use of the techniques authorized in Yoo’s memo. Once Mitchell took over, according to Soufan’s testimony to Congress, information shut down and the FBI brought back to get it re-started. We know that the tactics being used by the CIA at this time repelled Soufan and that the CIA was considering a live burial of Zubaydah – something that caused Soufan to threaten arrests. In this time frame, after CIA tactics had begun but before the August 2, 200 memo, Soufan says Zubaydah provided information on Jose Padilla and the “dirty bomb” plot.
On April 10, 2002 British resident Binyam Mohamed was being arrested in Pakistan as he tried to board a plane to London. As discussed, with citations, in Chapter 4 of The Torture Report, on April 20, 2002:
…[Mohamed] was moved to a Pakistani intelligence service interrogation center, where he was greeted by FBI agents. “He asked for an attorney and refused to speak with them, since he said the Americans had nothing to do with him,” his attorney recorded in notes from his first interview with his client in Guantánamo in May of 2005. Mohamed told him, “I refused to talk in Karachi until they gave me a lawyer. I said it was my right to have a lawyer. The FBI said, The law has been changed. There are no lawyers. You can cooperate with us—the easy way, or the hard way.” (emph. added)
More about Mohamed’s treatment has come out in filings in one of the GITMO habeas cases and in proceedings in the UK. The Ennis Affidavit was based on statements made while Mohamed was being hung by his wrists; fed only once every other day; beaten; told he could be forced to talk the “hard way;” threatened with shipment to Jordanians and Israelis, as U.S. proxies, to “make” him talk with more severe torture; and threatened with a loaded semi-automatic. (All of which took place before he was shipped off for genital mutilation in Morocco.)
In addition to Zubaydah and Mohamed, the CIA and DOJ/FBI relied on evidence that Padilla and Mohamed “researched” how to build a nuclear weapon – evidence that that Padilla and Mohamed visited a website that provided them with the Barbara Ehrenreich satirical article, “How to Build Your Own Home H-Bomb”
Based on Department of Justice represenatations about Padilla in the Ennis Affidavit, Judge Mukasey used the power of his court to authorize the detention of an American citizen based on visits to a satire site; statements by a mentally ill man who being abused in a black site in Thailand and statements of another man having a loaded gun pointed at him in Pakistan.
Padilla’s lawyers began doing what the advocacy system of law requires- presenting Judge Mukasey with challenges to the Ennis Affidavit. The push from Padilla’s lawyers, Newman and Patel, forced Mukasey to set a hearing on June 11, 2002.
On June 7,2002, Chertoff as head of the DOJ criminal division issued a Memorandum to Bybee about Padilla. (To my knowledge, this memo and information of the discussions and exchanges leading up to it, have never been released – if they have, please share!) Bybee responds with a memo to Ashcroft dated June 8, 2002 referencing the Chertoff memo and providing the recommendation that Padilla be declared an enemy combatant and taken by the military into its custody. Bybee notes that the “only problem” is the fact that Padilla is a US citizen who was seized in the US, with apparent indifference to the fact that he is also a US citizen currently in the custody of Judge Mukasey’s court.
On June 9, 2002, two days before the hearing, Mukasey and the government lawyers arrange (without notice to or participation by Padilla’s lawyers) for Padilla’s release from court custody and transfer into military custody. One immediate result is that the Ennis Affidavit will no longer receive scrutiny. (Indeed, in later proceedings that Affidavit, despite Judge Mukasey’s reliance on it, became very hard for Padilla’s counsel to obtain for inclusion in the appellate record) . Meanwhile, the OLC that would a few years later report to Mukasey as Attorney General was working on a series of memos authorizing the abuse of detainees like Padilla.
In August of 2007 Mukasey publicized, via the Wall Street Journal, his involvement in the military detention of Padilla to bolster his claims that handing over Padilla to the military for “enhanced” interrogations – was the “right” decision ( Padilla Makes Bad Law ). At that time, his name was already being dangled as a possible replacement for Gonzales as Attorney General and Harper’s revealed that, within a few days of his public stand against trials, Mukasey was involved in
… a private meeting for him with a number of “movement conservatives.” … During the meeting, Mukasey’s counterparts, largely figures associated with the Federalist Society, pushed him on two points in particular.
First, they wanted him to undertake that he would not appoint a special prosecutor to look into the U.S. attorneys scandal and related charges concerning political prosecutions. At this point it is clear that if an independent investigation were to be launched, it would quickly run head-on into some of the same figures who sat in the room with Mukasey. …
second, they pushed aggressively on the torture question. They wanted Mukasey to pledge that he would toe the Administration’s line on “the Program,” that he would continue to protect those who authored the program with the cloak of an Attorney General opinion keeping them safe from prosecution.
Mukasey, I am told, gave vague reassurances on both points, “without completely giving away the shop.”
On September 17, 2007, after those private reassurances on torture, Mukasey was reported to be Bush’s pick to replace Gonzales as Attorney General. Then, in October, 2007 confirmation hearings Mukasey made a public promise to the Democratic controlled Judiciary committee – that he would review Bradbury’s torture memos, but even here he gave a hint of the rationale behind his review – to insulate the interrogators, so that the “people who work for agencies, people who may be engaging in interrogation, have confidence that they are acting on the basis of the law.” Mukasey was apparently untroubled by the propriety of undertaking this review, despite his direct ties to those memos, with his court having converted the statements made by Zubaydah and Mohamed into the judicially authorized detention of Padilla, an American citizen.
By November of 2007, Mukasey was sworn in and, as EW summarized for me, by now had promised to review the torture memos and promised not to prosecute torture . But Mukasey’s promises could only bind the Department, not the torture victims.
In January, 2008, Jose Padilla’s lawsuit against those who allegedly conspired to send him off to military abuse was filed. As the Padilla suit survived an initial Motion to Dismiss, the likelihood increased that discovery would reveal more and more information about how the DOJ laundered coerced information through Mukasey’s courtroom.
During Mukasey’s short tenure as Attorney general, he repeatedly took advantage of his office to further campaign (despite pending investigations and lawsuits) on behalf of the torture lawyers. In May of 2008, Mukasey spoke to Boston College of Law graduates and inexplicably made the actions of the lawyers who authorized military detention and “combatant” abuse a centerpiece of his remarks.
Mukasey told Boston College Law School graduates Friday that lawyers doing their part to protect the country in the aftermath of the Sept. 11 attacks should not now be held liable or face criminal charges for doing so.
At this time, he was the supervisory head of OPR, which had not yet issued its Report. In November, 2008, Mukasey collapsed at a speech to the Federalist Society while arguing that the decisions made by and actions taken by the Bush administration and its lawyers were in good faith and for national security purposes.
All of this preceded the Mukasey letter, but disclosed in that letter is the reason behind something that had seemed very puzzling. During leaks about the Yoo and Bybee referrals, there had been references to the fact that Bradbury would skate. Given the nature and context of his opinions (for worse that Yoo’s imo), that seemed incredible – especially as Bradbury was NOT acting in the direct aftermath of 9-11. However, as Mukasey disclosed in his letter, the reason Bradbury is not facing recommendations is because Mukasey prohibited OPR from investigating the Bradbury opinion.
One problem for OPR, or any in-house DOJ investigation of the Department’s involvement in torture solicitation, is that the titular heads of the investigative wings of DOJ were, in an unbroken line from Ashcroft through Mukasey, directly involved in cases involving DOJ and torture and none of them have ever timely recused from their supervisory positions. From Ashcroft (who refused to be interviewed) to Mukasey and most of the during that span DAGs as well – the top levels of DOJ, the supervisors to whom OPR reports, been directly involved in cases and processes involving the torture memo authorizations . They have not only failed to provide any effective recusal to de-politicize the OPR’s review, as Mukasey’s statements to the Boston College Law students and the Federalist Society demonstrate, they have even gone so far as to repeatedly pressure on OPR to reach a pre-set decision (the good faith of lawyers involved). More than that, they have overruled OPR (as Mukasey did with respect to Bradbury) and refused to cooperate with the investigation (the approach taken by Ashcroft).
So even though I continue to believe that the OPR review was, itself, doomed (for other reasons) to be a failed process,Judge Mukasey’s letter makes a valid point. It does help with the context when you know a bit more about the source of the comments.
EDIT NOTE: Original version referred to “Abu Zubaydah (the subject of the August 2, 2002 Yoo Memorandum) had been captured on March 28, 2008.” The 2008 is a typo and should be 2002. Thank you to SaltinWound below for the correction.