SJC is having its hearing on the OPR report today–with a witness who appears not to have been involved in either the corrupt process of writing the memos or the corrupt process of whitewashing the report. See here for Jeff Kaye’s take on the witness, Gary Grindler.

You can follow the commmittee feed here.

Leahy: Sorry we’re starting late, lost power this morning.

Sessions: You missed CNN piece of you and Lugar getting along in bipartisan way. What a puff piece!

Leahy: Since I first proposed non-partisan inquiry into torture, I asked for one a year ago. Wanted to take it out of politics, have somebody like 9/11 Commission look into it. We were unable to have someone look into it. More and more evidence of what went wrong. OLC memos. Inspector General report calls into question guidance from DOJ, CIA IG report shows even those lax standards were violated, finally OPR report. All these narrower reports point to why we need comprehensive review. OPR limited to whether legal profession rules were violated. That’s the business of bar associations. Wrong focus. Memos only part of the problem. Intended to provide golden shield to commit torture and get away with it. Denied access to key witnesses and Docs. David Addington? Yet acc to Gonzales, he’s a key figure. Gonzales called him active player. Did they have full record of Yoo’s communications w/White House. So many gaps. First question is going to be, where are Yoo’s emails, which by law are required to be maintained. Not whether shoddy legal memos. OLC designed to reach an end. These Admin lawyers frankly lost their way. Bush disserved by lawyers who worked for him. Told him not what he should have heard, but what Cheney wanted to hear. Rule of law disrespected. American people harmed put at greater security risk. Torture handed AQ valuable propaganda tool. Made us less safe. Focusing on whether these lawyers met legal ethics standards besides the point. My sense is real investigation would reveal similar to what USA purging revealed. We need to find out what went wrong so it won’t happen again. Unfortunately Obama Admin attempts to repair office hamstrung by those who continue to delay appointment of Dawn Johnsen. Not afraid to issue subpoenas. I want to make sure no future admin makes such mistakes.

Leahy: DiFi not feeling well, why she’s not here.

Sessions: SJC and SASC and SSCI spent an extraordinary amount of time to investigate war w/AQ, second-guessing good people. Memos were repealed, yet here we are in 2010 in large part bc of missteps and delays in OPR office. These hearings suggest systematic torture. We don’t have to tell world worse than what we do. Anti-war groups always find something to complain about. Policy decided by both houses. [Did he say parliament?] I fear we’re now in what Goldsmith calls cycle of timidity. Admin repealed interrogation techniques that are lawful. Done so in favor of far more limited Army Field Manual. Miranda warnings and lawyer to terrorist w/AQ bomb. Civilian trials instead of military commissions. Admin trying to assuage pressures from the left, maybe because of chief critics and anti-war activists who now populate DOJ. Investigations like one OPR investigating Bybee and Yoo sent bad message to those who might serve as Admin lawyers.  STATE BAR AUTHORITIES. DC Ethics rules would now be imposed on people engaging in guidance on some of the most evil people. Leaks from OPR. [Note one of the most extensive leaks was almost certainly from Steven Bradbury] Margolis rejected. WaPo called his judgment courageous and correct. [I like that WaPo is now a good read for Sessions.] President not using power.

Leahy: We want to make sure no President uses powers he does not have. Statement from Feingold, Whitehouse at funeral for Marine killed in Afghanistan.

[Durbin calls out Sessions for being pro-torture, voting against McCain resolution]

Durbin: Reminding ourselves why we’re here today. Bybee and Yoo authored infamous torture memo.Would we stand idly by and accept if it others tortured Americans? I listen to statements made by Senator from Alabama, cycle of timidity. Uses as evidence decision to give Miranda warning to accused terrorist. Suggestion that Obama Admin policy. Under Bush Admin, policies were adopted at FBI, w/in US, Miranda warnings prior to custodial interviews.195 to 3. 195 alleged terrorists have been convicted in Courts of America. How many successfully prosecuted in MCs? 3. Some of the most outrageous terrorists are now serving life sentences in SuperMax prisons bc brought to courts of our land. On 2/5/2008, Whitehouse and I asked Mukasey to investigate whether waterboarding violated any laws. He refused. I heard high praise for Margolis here. Some claim that he has vindicated Yoo and Bybee. Margolis “I fear that Yoo’s ideology led to extreme opinions.”

[Shit, Durbin is piling on the high praise for Margolis. Not good.]

Cornyn: Yoo and Bybee deserve thanks. For too long men and women dedicated lives to protecting country have been slandered. There shouldn’t be criminal investigation. Opinions judged by officials were given in good faith. Prosecuting former President’s former lawyers might be popular, but would threaten country’s ability gather intelligence and the rule of law itself.  Based on SERE training our own military exposed to. Asked their superiors, asked lawyers. You might think they had been found guilty of professional misconduct, not exonerated. Will we investigate OPR itself?

[This is the danger of hailing Margolis–because it prevents you from going after Margolis’ bogus claim]

Leahy: Gary Grindler. Acting DAG. A lawyer’s lawyer.

Grindler: Disclosure extraordinary, but necessary to disclose to show complexity. Some may disagree. Confident that department followed appropriate process. OPR Report completed on July 29, 2009. In keeping with current practice, given change to appeal. Margolis decided matter w/o interference. Decision represents final action. Career attys, should investigate misconduct. My understanding that no AG or DAG has ever overturned decision of career official. Margolis has been deciding such matters for many years now.

[So we can hold him personally responsible for any and all corruption at DOJ???]

Grinndler: Lengthy service, uniquely qualified to decide merits. Primary role, answer questions about process. Hope you will understand not in position to delve into substance of reports. Margolis and OPR came to conclusions w/o political influence, not prepared to second-guess. Authors of memos chose poor judgment. Marked contrast to action Dept would reasonably expect lawyer to take. AG and I have confidence in Margolis, but also in OPR.

[This entire hearing response is DOJ saying to Congressional oversight: we’re immune]

Leahy: One thing bothered me. We talk about reputation of Yoo and Philbin, DOJ email records have been destroyed, not made available. Footnote to report: investigators told most of Yoo’s email deleted. Philbin’s email from crucial period, also disappeared. Not recoverable. Raises very serious concerns about govt transparency. As you know US Code is very clear about these records. Penalties provided by law for removal or destruction of these records. We also have right to know why deleted? Has dept opened investigation.

Grindler: Report itself does not suggest anything nefarious.

Leahy: Law requires them to be retained, not, any investigation. Whether nefarious or not.

Grindler: Met with AAG for DOJ who has oversight, which includes IT. Directed him to work w/his experts to determine what was going on in terms of archiving.

Leahy: Will they make effort to retrieve them.

Grindler: must first find out what happened.

Leahy: Millions of emails disappeared in first admin, they don’t just disappear. Will department make determination whether destruction was criminal.

Grindler: First want to get info back from IT experts. Including all questions of what occurred, at that point, be in position to evaluate whether anything needs to be done. Does include review of some of Yoo’s emails.

[Ah for fucks sake, come on, fool!]

Grindler: Report doesn’t have complete lack of his emails.

Leahy: Only find emails after investigation over. I would hope that we don’t have to wait that long this time. Political operatives using second blackberry to circumvent requirement to keep records. Will DOJ determine whether Yoo used second blackberry?

Grindler: Will pose that question.

Leahy: We were always told that information wasn’t there. Then find it in newspapers after having been leaked by Bushies to the press. Still asking for all docs. June 16, working to produce. The president issued EO prohibitting torture. EO can be overturned. Has every OLC memoranda that is cited in OPR final report been withdrawn.

Grindler: [Repeats EO]. I can confirm that 7 of 8 OLC opinions referenced have been formally withdrawn. 8th is covered by EO, has not been occasion otherwise to withdraw it. Refutes or modifies some of other opinions.

[This must mean that Bradbury’s 2007 memo is still in place]

Leahy: No other outstanding letters or opinions.

Grindler: Not that I know of.

Leahy: DOJ website makes available withdrawn opinions. Judiciary all terror interrogation memos.

Grindler: Have to go back and get definitive confirmation.

Leahy: I don’t want to subpoena again, but I will. I also want index of all OLC opinions.

Sessions: Durbin continues to repeat party line view that post-9/11 civilian court. Pretty clear question.

Grindler: Policy on miranda rights does say that when you have someone in custody, required to give miranda. One exception used in Abdulmutallab, initially questioned w/o Miranda.

Sessions: Public exception, only a few minutes. Maybe you could go 50 minutes. Right to remain silent, increases likelihood that they’ll clam up. Leaks of OPR. Primary focus on leaks. Leaks violate discipline order and sanctity of justice in America.

Grindler: Info that should have been made public was made public. I can assure that I take it very seriously.

How remarkable. Sessions neglected the leak via David Johnston of not only of info on OPR report, but even evidence submitted to OPR. I guess Jeff Sessions pays closer attention to what Scott Horton say than he does to what appears on the front page of the NYT. Someone should tell Pinch Sulzberger.

Sessions: [Sessions doesn’t seem to know difference between OIG and OPR] Dawn Johnsen. Serious issues.

Leahy: Making sure US follows its own high standards and laws.

Leahy: Commander in Chief, any action would be lawful. Yoo said he could. Can you imagine how we would react. Current OLC interpretation of C-i-C authority.

Grindler: On interrogation?

Leahy: No, generally.

Grindler: Some of the memos did address what C-i-C’s power. Not aware of any other ones. Will go back.

Grindler: POTUS has made clear that torture will not be condoned.

[Again, this is not law, this is an EO, which we know can be pixie dusted.]

Leahy: Do you know anything in law that would prevent later POTUS?

Grindler: As long as EO is in place, one would hope they’d go back to OLC and seek opinion.

[Therein lies the problem, huh? If OLC lawyers can’t be held to ANY standard of ethics, then w/o stated law, nothing prevents President from going back to waterboarding.]

Leahy, quoting Comey: You’d have to be an idiot to not know what they wanted.

Leahy: Is it common for WH to be so intimately involved in OLC opinion.

Grindler: When POTUS asks for legal advice, one of responsibilities for OLC.

Leahy: Tell me what the law is.

Grindler: Get into play integrity of lawyers at legal counsel. Lawyers want to be there bc of independence.

[Bollocks. Many of them want it because it’s the quickest route to Appeals Court judgeship and SCOTUS]

Grindler: OLC consults with others.

[But we know Yoo didn’t, and yet he wasn’t punished.]

Leahy: Bradbury. His complicity in offering memos to uphold Bush.



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