Back in September, I put together a timeline of everything we knew about the “Legal Principles” document created by the CIA’s CounterTerrorism Center and lawyers from OLC in 2003. The OPR Report has additional information on the document (starting at PDF 107), which it refers to as the “Bullet Points,” so I wanted to update September’s post to see what more we could learn.
As a reminder, the “Legal Principles” [and/or “Bullet Points”] document is a set of bullet points CIA’s Counterterrorism Center developed with the participation of John Yoo and–the OPR Report makes clear–Jennifer Koester. Koester explained the document this way:
She understood that the Bullet Points were drafted to give the CIA OIG a summary of OLC’s advice to the CIA about the legality of the detention and interrogation program. [Koester] understood that the CIA OIG had indicated to CTC
[redacted] that it might evaluate the legality of the program in connection with its investigation, and that the Bullet Points were intended to demonstrate that OLC had already weighed in on the subject. [There is a one page redaction after this description.]
It appears the “Legal Principles” document claimed to do three things:
- Authorize the use of torture with other “al Qaeda” detainees, even those not described as “High Value”
- Legally excuse crimes, potentially up to and including murder
- Dismiss CAT’s Article 16 prohibition on cruel and inhuman treatment
As such, the document formed a critical legal fig leaf leading up to the release of the IG Report (at which point OLC clarified in writing that it was not a valid OLC opinion). I suspect the need to replace this explains some of the urgency surrounding the May 2005 OLC opinions.
There are several details that become clear from this timeline:
- John Yoo (and probably Jennifer Koester) was involved in the CIA OIG process from the start. He knew that the IG’s development of facts associated with potential crimes would affect what DOJ did to any criminal referrals in response.
- The need to expand legal status of the torture program with the IG Report in mind appears to be one of two reason why Yoo and Koester shared a copy of the March 2003 Yoo Memo with CIA; that memo appears to have formed the basis for several of the bullet points in the “Legal Principles” document. (The other reason to share the memo is to understand status of DOJ opinions just as CIA started torturing Khalid Sheikh Mohammed.)
- Even though John Yoo himself acknowledged that the “Legal Principles” document was not OLC product, CIA continued to insist on using it.
John Yoo’s Original Torture Approvals
The early approvals for torture focus largely on the torture statute to the detriment of other laws. Furthermore, the specific approval for torture–the Bybee Two memo–only covered Abu Zubaydah.
July 13, 2002: John Yoo writes Rizzo a letter outlining “what is necessary to establish the crime of torture.”
August 1, 2002: Bybee memos establish organ failure standard and support necessity defense, state that interrogation would not be subject to ICC, and approve ten techniques for use with Abu Zubaydah.
Crimes Create the Need for New Approvals
It appears that the deaths in custody in November and December 2002 may have been the impetus for the “Legal Principles,” in which case they can be understood as a way to dismiss crimes–including murder–committed on detainees.
November, December 2002: Deaths in CIA custody, abuse of al-Nashiri. The OPR Report also has a lengthy section on another detainee, which is completely redacted, though it appears those abuses happen after KSM in March 2003.
December 2002: Scott Muller meets with OLC (and Criminal Division) and briefed them on scope and breadth of program.
January 24, 2003: Scott Muller, John Rizzo, and another CIA person (probably a CTC lawyer) meet with Michael Chertoff, Alice Fisher, John Yoo, and one other DOJ person (probably Koester) to discuss detainee abuses. Chertoff told CIA that “use of weapon to frighten a detainee could have violated the law” (Chertoff seems less interested in a different episode), but tells CIA that DOJ will let CIA OIG develop the facts.
January 28, 2003: John Helgerson calls John Yoo. Yoo tells him that “they feel they do not need to be involved until after the OIG report is completed.” After Helgerson shares Yoo’s response with Rizzo, Rizzo responds saying, “Based on what Chertoff told us when we gave him the heads up on this last week, the Criminal Division’s decision on whether or not some criminal law was violated will be predicated on the facts that you gather and present to them.” [Note, this description precedes a 4-page redaction in the OPR Report, one of the longest redactions in the report.]
March 3, 2003: Yoo has Koester send draft of Yoo Memo to CIA General Counsel Scott Muller. OPR Report explains that “Muller wanted to make sure nothing in the new memorandum detracted from the assurances OLC had provided CIA in the Bybee Memo. Note the Yoo Memo has a more extensive discussions of why CAT didn’t apply than the Bybee Memo, as well as a statement that ordinary criminal statutes would not apply. Both of these responses would seem to respond directly to Chertoff’s comment about potential criminal violations. Some of this language appears to have been adopted in the “Legal Principles” document.
March 7, 2003: Muller responds to draft (the content of the response is entirely redacted in the OPR Report).
April 28, 2003: Muller has draft of Legal Principles hand-carried (note, OPR Report says it was faxed) to John Yoo. It states:
The United States is at war with al-Qa’ida. Accordingly, US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.
Koester “reworks” the draft and sends it back to CIA.
CIA Delivers “Legal Principles” to Philbin as Final Document after Yoo Leaves
In May 30, 2003 John Yoo left the OLC–the timing of which is discussed in a mostly redacted footnote. Yoo’s departure appears to have created legal exposure for CIA because they had the understanding that his authorizations were carte blanche authorizations. CIA tried to deal with this by presenting Yoo’s carte blanche to his replacement, Pat Philbin, as a fait accompli.
June 16, 2003: On June 16, CIA sends two drafts of the document internally. One (Other-25) is described this way:
This is an 8-page document, including two routing slips and a classification cover sheet. The document summarizes the law applicable to the CIA’s detention and interrogation program of captured detainees. The document contains confidential communications between a CIA attorney and CIA officers relating to a matter for which the officers sought legal advice. It was prepared by the CIA attorney or employee with the joint expectation of the attorney and employee that it would be held in confidence, and it has been held in confidence. These privileged attorney-client communications are thus protected from disclosure by Exemption b(5).
One (Other-23) is described this way:
This is a 4-page document, including a router page, that summarizes the applicable law to the CIA’s detention and interrogation program. This document contains pre-decisional deliberative process information and confidential communications between a CIA attorney and CIA officers relating to a matter for which the officers sought legal advice. It was prepared by the CIA attorney or employee with the joint expectation of the attorney and employee that it would be held in confidence, and it has been held in confidence. In addition, the information was produced by a CIA attorney in anticipation of litigation.
Now, I’ve placed these documents in this order because the Vaughn Index that describes them seems to present the documents in descending order, from most recent to older. While both appear to be drafts of the “Legal Principles” document from the description and the timing, there are some differences:
- Other-25 appears to have been forwarded to a second recipient; Other-23 appears to have been sent just once
- Other-25 appears to have five pages of content; Other-23 (and the version sent to Philbin that day) have just three
- The Vaughn Index claims Other-23 was produced “in anticipation of litigation;” it makes no such claim for Other-25
- The Vaughn Index claims Other-23 contains deliberative discussions; it makes no such claim for Other-25
One thing may explain the differences in the two versions. On the same day, a CIA lawyer wrote a Memo for the Record stating that,
… the document “was fully coordinated with John Yoo … as well as with [Koester], who reported to Mr. Yoo at OLC. It was drafted in substantial part by Mr. Yoo and [Koester] and was approved verbatim. It reflects the joint conclusion of the CIA Office of General Counsel and the DoJ Office of Legal Counsel.”
So it may be that the longer version of the “Legal Principles” document includes the MFR.
Presumably after those two versions were exchanged at CIA, someone at CTC sent a copy (of the three-page document, plus router and classification sheet) to Pat Philbin, who had taken over many of John Yoo’s duties at OLC. The document was sent with the message,
For your records–copy of final legal summary.
The existence of two versions (of different length) of this document on the same day the “final” was sent to Philbin suggests CIA may have quickly finalized the document so as to present Philbin with a purportedly final document.
The Legal Principles Limits the Law, Dismisses CAT’s Inhuman Prohibition, and Adds Techniques
While this version does not have the “criminal statutes do not apply” language from the April 28 draft, it does have this passage limiting the applicability of the law to the Torture and the War Crimes statutes.
CIA interrogations of foreign nationals are not within the “special maritime and territorial jurisdiction” of the United States where the interrogation occurs on foreign territory in buildings that are not owned or leased by or under the legal jurisdiction of the U.S. government. The criminal laws applicable to the special maritime and territorial jurisdiction therefore do not apply to such interrogations. The only two federal criminal statutes that might apply to these interrogations are the War Crimes statute, 18 USC S2441, and the prohibition against torture, 18 USC S2340-2340A.
With that language, it seems, the “Legal Principles” document excused things like murder. As such–particularly with the language about “anticipation of litigation”–the document may partly serve to “legalize” the crimes committed against detainees in November and December 2002.
The document also dismisses the application of the Convention Against Torture’s prohibition on cruel and inhuman treatment, first of all, by simply making shit up.
Because of US reservations to the Convention, the US obligation to undertake to prevent such treatment or punishment extends only to conduct that would constitute cruel and inhuman treatment under the Eighth Amendment or would “shock the conscience” under the Fifth and Fourteenth Amendments. Additionally, the Convention permits the use of such treatment or punishment in exigent circumstances, such as a national emergency or war.
The “Legal Principles” go on to further dismiss CAT’s cruel and inhuman prohibition by claiming those same amendments don’t apply.
The interrogation of members of al-Qa’ida, who are foreign nationals, does not violate the Fifth, Eighth, and Fourteenth Amendments because those amendments do not apply. The Due Process Clauses of the Fifth and Fourteenth Amendments, which would be the only clauses in those amendments that could arguably apply to the conduct of interrogations, do not apply extraterritorially to aliens. The Eighth Amendment has no application because it applies solely to those persons upon whom criminal sanctions have been imposed. The detention of enemy combatants is in no sense the imposition of a criminal sanction and thus the Eighth Amendment does not apply.
Having “authorized” murder and cruel and inhuman treatment, the “Legal Principles” proceeds to add new techniques to the torture regimen beyond those approved in the Bybee Two memo, including:
- Reduced caloric intake
- Deprivation of reading material
- Loud music or white noise
- Abdominal slap
- Wall standing
- Use of diapers
That is, this document claims to reflect OLC authorization for the confinement techniques CIA was already using and for the new coercive techniques that had already been put into place.
Pat Philbin and Jack Goldsmith Object to the “Legal Principles”
June 17, 2003: The day after Philbin received the document, he met with the CIA and–at least according to Jack Goldsmith–told them it did not count as an OLC opinion.
OLC also believes that the status of the bullet points was made clear at a meeting on June 17, 2003 soon after the Deputy Assistant Attorney General with whom OGC had consulted on the bullet points had departed from the Department of Justice.
June 20, 2003: [Note, this discussion relies on both the Final and Second Draft of the OPR Report, because different things are redacted in each; the Final appears to rely on additional Philbin input.] Scott Muller, another CIA person (probably a lawyer), Deputy White House Counsel David Leitch, John Bellinger, DOD OGC lawyer Whit Cobb, and one other person (probably Koester) met with Alberto Gonzales in his office to discuss how to respond to a June 2 letter from Patrick Leahy to Condi Rice asking whether our interrogation program is humane. The Final report describes a conflict over whether the torture program complied with CAT, and whether CIA had legal cover for CAT:
According to Philbin, Muller stated at the meeting that the CIA had relied on the Bullet Points to establish that the EIT’s were consistent with Article 16. Philbin said he told Muller that the Bullet Points were an unsigned, undated
document that was not on OLC letterhead and that he was unsure how they had been prepared. He told Muller that he could not rely on the Bullet Points as an OLC opinion.
Philbin told OPR that he told the attendees at the meeting that he was not prepared to say that the EITs met the substantive requirements of the Fifth, Eighth, and Fourteenth Amendments because he had not done that analysis. He told them he was prepared to endorse the view that the EITs did not violate those provisions because those provisions did not apply. Philbin asserted that the Fourteenth Amendment applies to state and not federal government; the Eighth Amendment applies to punishment for crimes; and the Fifth Amendment did not apply extraterritorially in this situation at that time.
The response to Leahy hedged on whether the program complied with CAT.
The letter advised Senator Leahy that the United States Government complies with its domestic and international legal obligations not to engage in torture ‘and does not subject detainees to cruel, inhuman, or
degrading treatment or punishment.
After the drafting meeting, Muller, the CIA lawyer, and Bellinger had a detailed discussion of the waterboarding conducted in the CIA program.
October 16, 2003: According to Scott Muller MFR, CIA gave “Legal Principles” document to Goldsmith when he was briefed on torture program on October 7.
February 24, 2004: CIA OGC submits its comments on the draft OIG report.
March 2, 2004: Even though Philbin told CIA–apparently on two separate occasions–that the “Legal Principles” were not an OLC product, that didn’t stop CIA from trying to claim they were again the following year with Goldsmith. In March 2004, the CIA included the “Legal Principles” document in a list of documents they asked Goldsmith to “reaffirm” (the other three were the August 1, 2002 memos). In that letter, Muller claimed,
was prepared with OLC’s assistance and received the concurrence of your office in June 2003.
Now, there’s a reason Muller pretended the “Legal Principles” document was valid even after Philbin had told him it wasn’t. As Muller explains,
We rely on the applicable law and OLC guidance to assess the lawfulness of detention and interrogation techniques. For example, using the applicable law and relying on OLC’s guidance, we concluded that the abdominal slap previously discussed with OLC (and mentioned in the June 2003 summary points) is a permissible interrogation technique. Similarly, in addition to the sitting and kneeling stress positions discussed earlier with OLC, the Agency has added to its list of approved interrogation techniques two standing stress positions involving the detainee leaning against a wall.
That is, CIA had relied on the document to introduce new torture techniques (and in the March 2004 letter was requesting authorization for two more–the water flick and water dousing). Of note, these are techniques that would later be authorized for Hassan Ghul, who was already in custody in March 2004, so it’s possible they used those techniques with him even before they requested this authorization.
Goldsmith claims he “was unaware of the Bullet Points until he received Muller’s letter.” After making inquiries, he learned that Koester and Yoo had worked on the document.
May 25, 2004: After receiving a copy of the final IG Report, which included the “Legal Principles” as appendices, Goldsmith asked CIA’s IG for an opportunity “to provide comments on the report’s discussion of OLC’s legal advice before the report was shared with Congress.”
June 9, 2004: Goldsmith speaks to Yoo by phone about “Legal Principles.” The OPR Report describes:
Yoo told Goldsmith that, to the extent [the “Legal Principles”] may have been used to apply the law to a set of facts, they did not constitute the official views of OLC. Yoo stated that “OLC did not generate the Bullet Points,
and that, at most, OLC provided summaries of the legal views that were already in other OLC opinions.” Yoo reportedly added that “almost all of the OLC work on the Bullet Points was done by an Attorney [presumably Koester] who could never have signed off on such broad conclusions applying law to fact, especially in such a
cursory and conclusory fashion.”
Yoo· denied to Goldsmith that he authored or approved the Bullet Points. We found, however, that the Bullet Points were drafted in part and reviewed in their entirety by Yoo and [Koester] and that neither of them expressed any disagreement with their contents.
June 10, 2004: Goldsmith informs the CIA that the “Legal Principles” document does not constitute an official OLC opinion.
I have further inquired into the circumstances surrounding the creation of the bullet points in the spring of 2003. These inquiries have reconfirmed what I have conveyed to you before, namely, that the bullet points did not and do not represent an opinion or a statement of the views of this Office.
OLC Withdraws Bybee as CIA Releases IG Report it Knows to be Inaccurate
Then, in a series of events that are probably related, OLC prepared to withdraw the Bybee One Memo (the “organ failure” document) as CIA rushed out the IG Report it knew to misrepresent DOJ’s authorizations.
June 14, 2004: Muller tells Goldsmith that “Legal Principles” were jointly prepared, that OLC knew they would be used in the CIA IG Report, and that they “served as a basis for the ‘Legal Authorities’ slide” used at July 29, 2003 briefing.
June 15, 2004: After having attempted to draft a joint response to the CIA IG Report with OLC, CIA OGC tells OLC that they will not sign on a joint letter. Goldsmith informs Ashcroft he will withdraw Bybee Memo and resigns.
June 17, 2004: Jack Goldsmith announces his resignation.
June 18, 2004: Goldsmith writes Tenet telling him the IG Report mis-represents Ashcroft’s statements and falsely presents the “Legal Guidelines” document as official OLC opinion.
June 22, 2004: In an off-the-record briefing, Comey, Goldsmith, and Philbin renounce Bybee Memo. Rizzo sends Philbin copy of earlier approval from Yoo. Muller responds to Goldsmith saying he had forwarded the complaints to John Helgerson, but would release the IG Report that week.
June 23, 2004: Helgerson transmits copies of IG Report to Gang of Four. His cover letter states that the report had been prepared without input from DOJ, but attached Goldsmith’s June 18 letter.
The Exposure on Cruel and Unusual Treatment
All of which explains a number of things, not least the urgency behind the push for an opinion on whether the torture program complied with CAT’s prohibition on cruel and unusual treatment.
July 15, 2004: CIA briefs Jello Jay and Pat Roberts on IG Report. At that point CIA claims to be seeking OLC’s legal analysis on whether the program was consistent with the substantive provisions of Article 16 of the Convention Against Torture.
Later July, 2004: CIA briefs Principals; they agree to seek an OLC memo on CAT.
May 30, 2005: Bradbury writes a memo claiming the torture program does not violate CAT’s Article 16.
The Bradbury memo–in which he replaces Yoo’s claim that there is an exigent exception in CAT with a claim that because torture was necessary, it can’t shock the conscience–is legally not much better than the “Legal Principles.” But the CAT memo completes much of the work that the “Legal Principles” document was meant to do: to exempt treatment clearly designed to humiliate from prohibitions on cruel and inhuman treatment.
Update, 3/4/10: I just wanted to add this claim from John Yoo that he had nothing to do with the Legal Principles, from his second response to the OPR Report.
With respect to the Bullet Points, OPR concludes, based only [sic] an internal CIA memorandum for the record, that “the document” ‘was fully coordinated with John Yoo.’” FR at 102. Of course, OPR never bothered to ask Professor Yoo about this issue during either of the voluntary interviews, and, contrary to the CIA’s assertion, he recalls informing the CIA that any summary of OLC’s analyses would be the CIA’s only, and could not be endorsed by OLC. Although OPR claims that [Koester] provided comments to the CIA, that the CIA believes the OLC “formally concurred” on the Bullet Points on June 4, 2003, and that the CIA sent a final version of the document to OLC on June 16, 2003, Professor Yoo left the Department in late May 2003. FR at 27. Whatever their merits or shortcomings, Professor Yoo was not responsible for the CIA Bullet Points, and OPR’s suggestions to the contrary, see, eg, FR at 161, are factually baseless.