OPR Report, Working Thread Four
[Note: this is a working thread, not a finished document. As such, I may not pay as much attention to typos as in finished posts.]
OPR Report on torture [for searchable copies, go here)
- Memorandum for the Attorney General
- OPR Final Report
- OPR 1st Draft Report
- OPR 2nd Draft Report
- Yoo Response to OPR 2nd Draft
- Yoo Response to OPR Final Draft
- Bybee Response to OPR 2nd Draft
- Bybee Response to OPR Final Draft
- Letter from Mukasey and Filip to Jarrett
- Letter from DOJ to Chairman Conyers
In this post, I will focus on Yoo’s and Bybee’s second response to OPR. Page numbers are to PDF page. There’s also a separate section, at the bottom, which includes quotes from both responses from John Rizzo’s response.
I’m going to post much of this in finalized posts. But for the moment, see the range of details about how Condi and Bellinger and others approved torture.
Bybee’s Second Response
There seems to be a source redacted where Bybee’s response describes Philbin claiming he warned Bybee about the problems with the C-i-C section.
Philbin said he explained his concern to Judge Bybee “on the evening the opinions were signed.” [Source redacted]
This redaction appears when what is presumably the same source is used on PDF 17.
PDF 18: It’s clear that Philbin had a great deal of intelligence–including purported details from Padilla’s plot. If so, then would it be clear that CIA was lying about al Qaeda?
PDF 21 contains some details on WH approvals that are redacted in the OPR report, such as: [Condi and Ashcroft approve torture]
National Security Advisor Condoleezza Rice, in fact, indicated that she would authorize the techniques as long as Ashcroft provided a personal opinion affirming their legality. Id. at 61.
Later, at a meeting [redacted] Ashcroft “forcefully reiterated the view of the Department 0f Justice that the techniques employed by CIA were and remain lawful and do not violate either the anti-torture statute or US obligations under the [CAT].” Report at 107-08. At the same meeting. Ashcroft and Philbin gave a “lengthy explanation of the law and the applicable legal principles” regarding the interrogation program. Id at 109. [2 lines redacted] Ashcroft himself “had reviewed and approved them as lawful under US law.” Id. at 110. A year later, in a letter to John McLaughlin (Acting CIA Director) on July 22, 2004, Ashcroft again confirmed that all of the EITs described in the Classified Bybee Memo, putting waterboard aside, complied with U.S. law. Id. at 124.
PDF 24-25 Much of this is redacted in the report, too. [Bellinger approves torture]
[Bellinger] hosted the initial meeting with OLC and the CIA on April 16, 2002, and assumed responsibility for briefing NSC Advisor Condoleezza Rice, Deputy NSC Advisor Stephen Hadley, and White House Counsel Alberto Gonzales. Report at 40, 42. He continued to attend meetings during the summer (id at 46,61), including the July 13,2002 meeting, where Yoo provided him with a copy of the Memorandum. Id. at 47. Bellinger also attended an NSC meeting with Rice, Hadley, and [Moseman] (CIA Director Tenet’s Chief of Staff) the day before the memos were due, which included a discussion of the proposed interrogation of Abu Zubaydah. Id at 61. When the CIA sought reaffirmation of the legality of the interrogation program the following year, Bellinger attended the July 29, 2003 meeting where Ashcroft “forcefully reiterated” the legality of the interrogation techniques. ld at 106. In addition, Bellinger actively participated in the administration’s response to the Leahy letter concerning the humane treatment of detainees. Bellinger attended the White House meeting on June 20, 2003 to discuss the letter, edited the response, and agreed that the use of the waterboard on Khalid Sheik Muhammed and Abu Zubaydah was “well within the law.” ld at 104-05.
PDF 25 More that is redacted in the original [Muller tries to tone down Yoo’s necessity defense]
CIA General Counsel Scott Muller. As CIA General Counsel from October 2002 through 2004, Muller played a significant role after OLC issued the Bybee memos. First, as OLC was drafting the Yoo Memo in 2003, Muller wrote [probably Koester] the had “read and reread the DOJ opinion and we are fine.” Id at 79. Muller noted that he “gave John Yoo some other edits to eliminate or tone down any reference to the need for necessity as a defense.” Id
Second, Muller was instrumental in the development of the “Bullet Points” summarizing OLC’s legal advice to the CIA. ld at 100-03. Muller told OPR that both OLC and CIA lawyers “formally concurred” on the Bullet Points on June 4 2003. Id. at 102. [2 lines redacted] In the subsequent discussion, Muller explained that the instances of detainee deaths were unrelated to the interrogation program. Id at 109. Muller also gave a description ofthe CIA’s waterboard
technique, which reportedly prompted Ashcroft to say that the CIA was ”well within” the scope of OLC’s legal advice. Id. [2 lines redacted]
PDF 26: while most of the details on Daniel Levin’s approvals are known from the actual letters, note the footnote that says the waterboarding that Levin approved was harsher than that described in the Bybee Two memo (which I have noted in the past)
PDF 26 to 27 [The NSC Princinpals discuss torture of Janat Gul]
Deputy Attorney General James Comey. Corney joined Ashcroft at a NSC Principals Meeting on July 2, 2004 to discuss the possible interrogation of CIA detainee Janat Gul. Report at 123. Ashcroft and Comey conferred with Goldsmith after the meeting, leading to Goldsmith’s letter to Muller approving all ofthe techniques described in the Classified Bybee Memo except for the waterboard. Id
Note, the reference to Janat Gul is surprising. Since last year’s document dump, we’ve assumed the reference to a “Gul” left unredacted in the CAT memo referred to Hassan Ghul, who was arrested in Iraq that year. But it appears it referred to Janat Gul. From Gul’s CSRT (starting at page 31) it appears he was captured on January 2003. Which means they were torturing him over a year and a half later.
PDF 30 This is also redacted in the report.
Another CIA lawyer [redacted] confirmed his understanding the day after the memos were issued that the statute would not prohibit the techniques proposed “in light of the specific facts and circumstances” that had been described. Report at 65.
PDF 115: Bybee still loves him some ticking timebombs.
Finally, OPR asserts that “any reliance upon the ‘ticking time bomb’ scenario to satisfy the imminence prong ofthe necessity defense would be unwarranted in this instance, as the EITs under consideration were nqt expected or intended to produce immediate results. Rather, the goal ofthe CIA interrogation program was to condition the detainee gradually in order to break down his resistance to interrogation.” Report at 212 n.168. This too is a mischaracterization of the facts and is shockingly presumptuous regarding OPR’s awareness of the intricacies of the
CIA’s interrogation program. The CIA’s program may have been based on the theory of “learned helplessness” (id. at 40), but we are aware of no evidence indicating how “gradual” that learning process had to be. The Classified Bybee Memo after all stated at I that use of EITs would “likely last no more than several days,” and [three lines redacted]
If time were of the essence, moreover, presumably the CIA could accelerate or skip techniques, resorting to the waterboard which was known to be [1 line redacted] In other words, just because the necessity defense might not pertain to the typical CIA interrogation does not mean that it would be unavailable in all cases.
PDF 116: And then tries to resuscitate the claim that Padilla had a ticking time bomb.
The truth regarding the precise nature of the threat posed by Jose Padilla may never be known. OPR quotes former Attorney General Ashcroft’s press statement that Padilla was merely “exploring a plan to build and explode” a dirty bomb as proof that the threat was quite distant. Report at 214 n. 171 (emphasis added by OPR). [~four lines redacted]
PDF 129: Bybee loves me!!!
Confusion on this score exists due to uncertainty regarding CIA terminology. A CIA official explained that the 83 times referred to the number of”short pours” of water involved in five sessions of waterboarding. Joseph Abrams, Despite Reports, Khalid Sheikh Mohammed Was Not Waterboarded 183 Times, Fox News, Apr. 28, 2009. The CIA Inspector General confirmed this. CIA IG Report at 36 n.41 (“For the purpose of this Review, a waterboard application constituted each discrete instance in which water was applied for any period oftime during a session.”). The absurd consequences of this calculation method are shown by the number imes the CIA could have “watrboarded” a detainee pursuant to Levin’s August 2, 2004 authorization letter. [several lines redacted]
Yeah, it was pretty absurd, wasn’t it. And yet it was the opinion of our DOJ.
PDF 131: Paging Jeff Kaye:
OPR is flat wrong to assert that the CIA “had no institutional experience or expertise” regarding interrogations prior to September II, 2001. Report at 31. Along with the Levi article referenced above and the McCoy volume cited by OPR itself, Report at 3 I n.30, the CIA .Inspector General noted that U[t]he Agency has had intermittent involvement in the interrogation of individuals whose interests are opposed to those ofthe United States,” dating back to before the Vietnam War. CIA IG Report at 9. Notably, OLC only authorized a more restrictive version ofsleep deprivation and stress positions than what the U.S. military had employed in the past. Levi, Interrogation’s Law, 118 Yale L.J. at 1440 (“Several techniques (for example, sleep deprivation, and standing as a stress position) that were und~ood at times before 9/11 as lawful by the military for use on protected prisoners of war were more coercive by degree than the same techniques authonzed for use on unlawful combatants post-9111.”).
PDF 144: I was waiting for someone to cite this crappy-ass article they planted. Good job, NYT!!
Ultimately, it was not until two months after Judge Bybee submitted his·response to OPR’s Draft Report that the New York Times confirmed that many additional senior officials at the Department agreed that the techniques under consideration in the Classified Bybee Memo were legal. See Scott Shane & David Johnston, U.S. Lawyers Agreed on Legality of Brutal Tactic, N.Y. Times, June 6, 2009;
Yoo’s Second Response
Yoo complains about the way the OPR report treats mock burial
On PDF 87 there’s a footnote that appears to be a discussion of Yoo’s refusal to approve mock burial.
It bears mentioning that OPR omits from its ostensibly “objective” analysis of the Classified Bybee Memo any mention of what [three lines redacted–appears to be a discussion of what the memo doesn’t approve] cf Rizzo Letter P2 (OLC “did not simply ‘rubber stamp’ everything the CIA was considering.”) This sort of irresponsible innuendo not only reflects poorly on OPR, but is consistent with the pervasive bias of the Final Report. An objective analysis would have credited the difficult line-drawing task with which OLC was charged, and recognized that the approval of the waterboard but not [redaction] reflected a good-faith, if debatable, drawing of an extremely difficult statutory line with important national-security implications.
What Yoo and Estrada appear to be doing here is accusing OPR of bad faith for having noted that Yoo said mock burial was torture, but at the same time suggested that if he had more time, he could have approved it. Of course, this ignores the context of DOJ at the time–after Ali Soufan went apeshit over Mitchell’s threat to use mock burial, after Soufan promptly discussed that event with people like Michael Chertoff, it made mock burial harder to approve than waterboarding, though both are generally considered torture.
CIA’s early 2002 appeal to self-defense
A footnote on PDF67 suggests Yoo knows of a disputed email from early 2002 in which the CIA appealed to self-defense and necessity to defend their use of torture.
OPR’s assertion that discussion of potential common-law criminal defenses was not sought by the client is undermined not only by the sworn testimony of David Addington, but by the CIA’s interest in the issues. [3 lines redacted] That the CIA had identified necessity and self-defense as significant issues before February 1, 2002 is an important fact, as OLC was not brought into the discussions until April 2002. FR at 37. Although individuals’ memories may fade over time as to who requested what sections and when, this email demonstrates quite clearly that this was a question CIA was asking before OLC ever became involved.
Now, for this to be relevant, OPR would have had to know that Yoo had seen this email. There’s a references to Yoo’s “research” in the discussion of the start of the OLC process. It’s likely this email is among the things Yoo had, presumably from a bunch of backup he had been sent by someone in CIA.
Yoo admits that peopled died, but he’s not responsible
On PDF 57, the response makes a claim that no one had died because of Yoo’s advice. But there’s a long, mostly redacted footnote that seems to acknowledge that people did. Yoo and Estrada seem to blame this on the inaccuracy of the cables approving torture.
It certainly would not be so misinterpreted by the sophisticated legal audience at which the Bybee Memo was directed–especially given the analysis in the Classified Bybee Memo, which carefully examined the level of physical pain caused by the individual interrogation techniques even though none of those techniques cause death, organ failure, or serious impairment of bodily functions. See Classified Bybee Memo at 9-10 (“With respect to physical pain, we previously concluded that ‘severe pain’ within the meaning of Section 2340 is pain that is difficult for the individual to endure and is of an intensity akin to the pain accompanying serious physical injury.”)40
40 [long redaction] But, of course neither Professor Yoo nor Judge Bybee have anything to do with writing or reviewing [redacted] and they could reasonably assume their own work product would be read in good faith and consistently with its terms by a sophisticated audience even if a particular reader did not read it carefully or willfully disregarded its terms.
As I said, it seems that they’re admitting that some people have died or experienced serious injury, but that that’s the fault of those who misinterpreted their memo when sending out torture approvals.
Yoo disclaims that Bullet Points/Legal Principles
Yoo says he didn’t have anything to do with them (PDF50):
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.
There are just a few problems with this. First, we know Yoo had at least one or two conversations in the context of the IG Report (for which the Bullet Points were written) on the standard that would make the torture illegal. We know that Yoo sent Scott Muller the Yoo Memo on March 3, 2003; the Yoo Memo pretty clearly formed the basis for two of the most important new claims in the Bullet Points. And finally, Yoo received, and passed to Koester, the draft received in late April.
All of which suggests Yoo has a very serious reason not to want to be associated with this document.
If the President Okays it (or the VP) it must be legal
In a passage on PDF 32 complaining that OPR has held Yoo to a higher standard on this issue, he suggests that other attorneys have made the same conclusion. But it’s the footnote, which probably describes the approval of people in the White House, that is most interesting.
Notwithstanding its assertion that “Department attorneys considering the possible abrogation or derogation of a jus cogens norm such as the prohibition against torture must be held to the highest standards of professional conduct,” FR at 25, OPR apparently believes that this heightened standard applies only to Professor Yoo and Judge Bybee and not to the Attorney General or other senior Department attorneys equally aware–after “vigorous discussion”–of the significant issues involved and who strenuously defended the legality of the EITs in the highest councils of government. 22
22 [long redaction that carries onto the following page]
Given the reference to the “highest councils of government,” the footnote must explain who in those high councils approved the torture.
From the Yoo Response
Moreover, the “CIA did not ask OLC to provide an exhaustive memorandum that thoroughly discussed all possible counter arguments,” but rather sought “OLC’s best judgment about the correct answer to a difficult question of law.” PDF 27 @P1
John Rizzo did not interpret the sections as any sort of advance declination, Rizzo Letter @5 (“[I] did not interpret the 2002 Bybee Memos to mean … that the interrogators would be immune from prosecution if they cross the careful lines drawn in the [Classified Bybee Memo].”) PDF 67
[in a discussion of the torture Yoo did not approve, presumably including mock burial] (OLC “did not simply ‘rubber stamp’ everything the CIA was considering.”) (PDF 87) Rizzo @P2
In fact, John Rizzo has made clear that he “interpreted the Commander-in-Chief section to refer to interrogations personally ordered by the President.” (PDF 92) Rizzo @P5
From the Bybee response
Rizzo confirmed that “all ofthe Executive Branch lawyers involved in reviewing the issues were satisfied that the memos reasonably concluded that the techniques at issue would not constitute torture.” Rizzo (Letter P 3). (PDF20)
Rizzo. a thirty-year veteran of the agency. said that he “had substantial personal involvement in the process.” Rizzo Letter P 2. PDF24
To the contrary, Rizzo confirmed that Bellinger “did not express reservations about the conclusions set forth in the memos” and “was firmly on board with OLC’s assessment that the techniques at issue did not meet the restrictive definition oftorture set forth in the statute.” Rizzo Letter P 3. (PDF24)
Rizzo likewise said that he was “aware that the issues were uncertain and that there were no controlling precedents.” Rizzo Letter P 1 (PDF 30)
OLC established key legal and factual boundaries that fell far short ofthe advance declination the CIA requested from the Criminal Division.24 See Rizzo Letter at P 5 (noting that once Rizzo was “advised that the Criminal Division would not issue an advance declination of prosecution, [he] did not pursue the issue any further.”). (PDF 30)
CIA told OPR that its interrogation program “relied on the analysis provided in the Classified Bybee Memo” (id at 124 n.95), and not the allegedly broad language of the Bybee Memo. See also Rizzo Letter P 5 (in advising the CIA, Rizzo “relied on the analysis and limitations set forth in the [C]lassified Bybee Memo because it specifically addressed the application of the statute to the proposed conduct”); id P 3 (Rizzo was “principally concerned with the conclusions in the Classified Bybee Memo”). Moreover, Rizzo confirmed that he never interpreted the Bybee Memo to immunize interrogators so long as they had a motive to obtain information, did not cause organ failure, acted pursuant to the Commander-in-Chief power, or asserted a common law defense. Id P 5. (PDF 31)
Rizzo’s recollection that neither Bellinger nor Yoo expected him to briefOLC “on every new variation
or technique that comes up,” Report at 233, has absolutely nothing to do with Judge Bybee and is flatly contradicted
by the text ofthe Classified Bybee Memo. (PDF 33)
Rizzo Letter’ll 5 (Rizzo “interpreted the Commander-in-Chief section to refer to interrogations personally ordered by the President but [he] did not view it as a form of ‘immunity”‘). PDF 34
See Rizzo Letter P 1 (“When [Rizzo] asked for OLC’s views, [his] overriding objective was to secure a definitive opinion on an expedited basis.”). (PDF 45)
See id (Rizzo was “aware that the issues were uncertain and that there were no controlling precedents”). (PDF 45)
Rizzo has expressly confirmed the obvious: the Levin Memo “did not fundamentally alter” his “understanding ofthe ‘” application ofthe statute to the enhanced interrogation techniques” and “did not change the answer” to the question of legality. Rizzo Letter, P 4. (PDF 72)
Finally, there is the client representative, John Rizzo. He has expressed the view that the “OLC lawyers worked diligently on the issues, raised questions, sought out relevant factual information, and solicited input from a number ofExecutive Branch lawyers.” Rizzo Letter’ 2. Rizzo believes that ”the memos adequately infonned [him] about the relevant risks and provided [him] with the information that [he] needed to advise the CIA.” Id. , 4. Rizzo concluded that he was “satisfied” that Judge Bybee “met the standard of care.” Id 6. (PDF 135)