Acting Counsels and Torture

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Acting Counsels and Torture

Postby NavnDansk » Wed Apr 02, 2008 2:57 am

Acting Counsels and Torture

By: emptywheel Tuesday April 1, 2008

Marty Lederman links to the finally declassified March 2003 memo authorizing torture in the military (Part One, Part Two). He reminds us the significance of the memo:

As I've discussed previously -- see for instance here and here, and as Jane Mayer has reported in great detail, the March 14th Yoo memorandum, and the April 2, 2003 DOD Working Group Report that incorporated its outrageous arguments about justifications for ignoring statutory limits on interrogation, was secretly briefed to Geoffrey Miller before he was assigned to Iraq, and became the source of all the abuse that occurred there in 2003 and early 2004. (In late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the "unusual lack of care and sobriety in [its] legal analysis" -- it "seemed more an exercise of sheer power than reasoned analysis" -- and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo. See the whole story here.)

But I'm even more interested in this part of Marty's post:

On Friday, March 13, 2003, Jay Bybee left his office as the Assistant Attorney General for the Office of Legal Counsel. The very next day -- a Saturday -- John Yoo, merely a Deputy AAG in the Office, issued his notorious memo to the Pentagon, on behalf of OLC, which effectively gave the Pentagon the green light to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees.

It describes how, as soon as the established top lawyer for one part of the executive branch left, his replacement took responsibility for a significant legal act. I find it ironic, particularly given the stamp that appears on the first page of the first part of the memo:

Declassify under authority of Executive Order 1958
By Acting General Counsel, Department of Defense,
By Daniel J. Dell'Orto
31 March 2008

Dell'Orto, you'll remember, replaced William Haynes at some point last month. I'm not precisely sure when Haynes' last day was--but within weeks of taking over as Acting General Counsel at DOD, Dell'Orto declassified an opinion we've been trying to declassify for years. Perhaps not surprisingly, the opinion, which has been treated as the family jewels by the Bush Administration. And just a few weeks ago Attorney General Mukasey was pretending he had barely reviewed it. The opinion was only ever classified as "Secret/Noforn."

In any case, what Yoo did, as soon as Bybee left the OLC, Dell'Orto has finally exposed, as soon as Haynes left DOD.

Update: Corrected claim that Yoo was "acting head" of OLC per Mary.
-------------- ... #more-1977


So the news on the Bybee memo is breaking while Bush is overseas trying to negotiate deals with the Poles, the Czechs, the Russians and NATO.

Interesting timing.


You know, they may also be dumping this to try to prevent Davis from getting on the stand.-Excellent point. Though I rather suspect the Ukrainians are more likely to be holding of “Gitmo plus” prisoners–you’d think the Poles would have learned their lesson.--Allowing Davis on the stand, able to offer unrestricted answers to defense questions? Gotta scare the bejeezus out of the old Cheney/Rumsfeld/Haynes crowd.


Rummy and others were charged…

It will be interesting to see what happens to Bush tomorrow wrt NATO gathering…

My hope is that some people finally get the guts to do the right thing after reading this and come forward.

And more fun stuff “hits the fan…”

Does anyone know where Cheney is, and whether or not he is angrily stamping his feet over this document release in his undisclosed rabbit hole?

Thanks very much, all of you who have posted on this.

As a former bureaucrat, one thing that strikes me is the underhandedness of Yoo’s having this elaborate 38-page memorandum all ready to go on a Saturday. Talk about lurking.

I apologize for going on memory here.

But this haunts me: in some Yoo (I believe) torture memo, an issue presented was whether the President could crush (I believe the verb was) the testicles of a 10-year-old boy in order to facilitate the interrogation of his father. That last is my euphemism. Can’t recall the original.

If this was a hypothetical, it is the wildest hypothetical I ever have seen. What point could it possibly help elucidate?

And yet — the sons of Khalid Sheik Mohammed were 7 and 9, respectively, when Pakistan picked them up and turned them over to U.S. authorities. I have read that the kids were interrogated about their father, and tortured with insects put on their legs, but that they had a psychologist to prevent psychological harm. As if that would do it.

As far as I know these kids are still, and appallingly, in U.S. custody. Prisoners.

What if it wasn’t a hypothetical?


Points up the Why this one? / Why now? question.


After slogging through pages and pages of juvenile rationalizations for torture, I came to this head-exploding statement (referring to an Israeli court decision banning a set of interrogation techniques as too hideous even for them):

Nonetheless, the decision is still best read as indicating that the acts at issue did not constitute torture.

85 - I think that was from a talk with Yoo as opposed to a memo, but the concept that you would torture without the “intent” to torture because you were trying to interrogate is as banal as saying you would murder someone for their money without the “intent” to murder because it was just a step towards getting the money. By making them dead.

As to the kids - who knows what has happened. If they are alive and are ever going to be produced, they will no longer look like children, that’s for sure. It’s been years and no one in Congress ever mentions them. Or their mother. But one of the GITMO detainees (I think the only one we haven’t released back to Britain) had DOJ go after his ability to even talk to his lawyer, much less testify, about what happened to him before he made it to GITMO and IIRC he is the detainee who also says he was held for a time at the same facility where the children were being tortured.

But the threats to kill family members as an accepted interrogation technique sure show up in the memos solicited and approved by the Man Who Comey and Goldsmith Wanted To Make Judge.

Thank God for Pat Leahy or Haynes would have been snuck in.


Just a guess here, but it seems a strong possibility that the JAGs pushed for the disclosure of Yoo’s memoranda.

As part of the background on the JAG’s opposition to Yoo and his memoranda, this is an interesting read from the Belgravia Dispatch:

John Yoo: “Yes”, An American President Can Order the Application of Torture

More from Mora’s memo:
…I met in my office with OLC Deputy Director John Yoo. The principal author of the OLC Memo, Mr. Yoo glibly defended the provisions of his memo, but it was a defense of provisions that I regarded as erroneous. Asked whether the President could order the application of torture, Mr. Yoo responded, “Yes.” When I questioned this, he stated that his job was to state what the law was, and also stated that my contrary view represented an expression of legal policy that perhaps the administration may wish to discuss and adopt, but was not law. I asked: “Where can I have that discussion?” His response: “I don’t know. Maybe here in the Pentagon?”

Mora writes about Yoo’s repugnant OLC memo thus:

Although the lengthy memo covered many issues and did so with seeming sophistication, I regarded it as profoundly in error in at least two central elements. First, the memo explicitly held that the application of cruel, inhuman, and degrading treatment to the Guantanamo detainees was authorized with few restrictions or conditions. This, I felt, was a clearly erroneous conclusion that was at variance with applicable law, both domestic and international, and trends in constitutional jurisprudence, particularly those dealing with the 8th Amendment protections against cruel and unusual punishment and 14th Amendment substantive due process protections that prohibited conduct “shocking to the conscience.”

And second, the memo espoused an extreme and virtually unlimited theory of the extent of the President’s commander-in-chief authority. A key underpinning to the notion that cruel treatment could be applied to the detainees, the OLC formulation of the commander-in-chief authority was wrongly articulated because it failed to apply the Youngstown Steel test to the Guantanamo circumstances. If applied, the test would have yielded a conclusion that the commander-in-chief authority was probably greatly attenuated in the non-battlefield Guantanamo setting. In summary, the OLC memo proved a vastly more sophisticated version of the Beaver Legal Brief, but it was a much more dangerous document because the statutory requirement that OLC opinions are binding provided much more weight to its virtually equivalent conclusions.

Note that Alberto J. Mora was the General Counsel of the US Navy and wrote a 22 page “memo”. I’ve been unable to located that memo on the Internet since the New Yorker link is dead.

However, the New Yorker article entitled “The Memo - How an internal effort to ban the abuse and torture of detainees was thwarted” is still live and it is a good read.

That’s good. Yoo characterizing Mora’s views as “legal policy” rather than the law, policy the administration might accept - or reject. But his views are “the law”, despite having been rescinded as soon as real lawyers above him in the chain of command read his work. Gotta go with Mora on that one.

As I recall, one reason Mora resigned was because Haynes consistently cut him and other senior JAG’s out of the loop - just as Team Cheney did the same in the White House, at the DOJ and in Congress - on novel legal and administrative issues, instead Cheneying them with fait accompli that they were under orders not to contest.

Seems to me this administration has little but disrespect for uniformed officers and the law, except when they can be used as props to violate the principals each stands for. “Support the Troops”, my ass. That’s not what these guys do; they just cover their own.
emptywheel April 1st, 2008
In response to manys @ 24

Right. But once again, that’s not cited (nor is it cited in the Jurist article linked there).

Also note, there’s a Haynes who is a former CEO of Chevron. Is it a Haynes’ relative? In other words, is this like Poppy Bush bailing out Junior?

I’m just struck by the absence of anything official that confirms the move. I don’t disbelieve it. But like Mary, I wonder why a publicly traded company–particularly one thatoperates under some tense environments around the world (I’m thinking of SE Asia and especially Nigeria, where a friend consulting for Chevron was practically held hostage on a trip once)–would want to hire someone likely to be indicted for war crimes by SOMEBODY
. ... #more-1977

-not just this administration. Contractors in the Clinton administration got pretty free rein (or you could substitute reign) too.

All of this is one of the big problems with the Clinton candidacy. So many things that need fixing and address do track back to things done on a lesser scale during the Clinton admin - no one will be motivated to dig in on things if there could be some passing mentions that are embarassing to the Clintons too - Bill’s warrantless latin american wiretapping program, his rendition flights to Egypt, etc.

I’m mostly asking bc of timing. I do suspect the release of the document is due to pressure from Gates, the embarrassment of Mukasey, and perhaps the tensions surrounding Haynes’ insta-departure in February. Probably also the upcoming show trials, to prove to courts that the torture that was done by those now suing was done with legal sanction. But I also wonder if the torture tape investigation plays into it at all.


Stripped of the political impact of his work, his resume’s probably impressive. I believe that Philbin, Comey, Goldsmith and Thompson all marvelled at the fact that he did a nice job with his paperwork.

- it may, Horton keeps mentioning the upcoming IG report. I do think that the show trials are partly at issue - especially with the decision to supercede the civlian criminal indictments of one of the detainees with a military proceeding seeking the death penalty. At some point, there was probably going to be a big showdown (since JAG has not been as completely corrupted and spineless as DOJ) over some of the interrogation procedures and the basis under which they were deemed legal so as to make the information admissible.

Of shores or on - keep in mind that much of what is authorized as done on US shores to a US citizen (Padilla) and has been continued on US shores vis a vis al Marri. Despite Comey’s presser to the contrary, there was a Pentagon report of Geneva Conventions violations ongoing at the So. Car. brig signed out from the month before the Presser. And there are about 70ish “missing” interrogation tapes there too IIRC.


- that’s good stuff. I never knew Horton was the lawyer the JAGs went to in NY. As you can see, all that highlights the continuing (to the very end) efforts by Haynes to subjugate JAG as thoroughly as DOJ was subjugated. But while DOJ went down in flames early and apparently doesn’t have a phoenix gene - some of the JAG officers and guys like Mora ended up being far tougher than their civilian counterparts.-

What lawyer outside this White House imagines that the “inherent”, unspecified-in-any-document authority of the President - when acting as Commander-in-Chief of the legally constituted armed forces of the United States, operating under applicable US laws (including those international and foreign laws incorporated by custom and treaty therein) - includes a “right” to torture at will?

A “right to torture” does not exist in the text of the Constitution. It cannot properly be inferred from that text because to do so would violate its express terms and those of inferior laws adopted according to its terms. The argument that it can be is shoe-horning, imagining an after-the-fact justification for something the president had done or authorized be done, regardless of the laws that create his office and which define the scope of his permitted action.

The “Commander-in-Chief” authority is a subset of the President’s overall authority. It applies to his role as the civilian political head of the armed forces. In his execution of that responsibility, the President is bound to comply with the express terms of the Constitution, laws enacted pursuant thereto, and his oath of office. Those laws include statutes, treaties and binding customs which specifically prohibit the torture he engaged in or authorized.

Mr. Bush’s first obligation when acting as President - in any capacity - is to ensure that the law is faithfully executed, even or especially when he is protecting us against all enemies, foreign and domestic. That’s what the people expect - demand - of him in exchange for acknowledging his right to lead, in giving him the power to do so, and in committing their lives and sacred treasure to pay for it. George W. Bush has failed to do that, with knowledge and intent, and regardless of the costs or consequences.


Well, the OLC is within DOJ and DOJ can classify info, but IMO the larger issue is one that is writ very large indeed with respect to something like torture and like the wiretap program and that is that to the extent the OLC memo was in effect acting as a judicial decision, you have a hard row to hoe to justify how the US govt can generate “secret law” in any fashion. If OLC is generating an opinion for reliance and Congress and the courts and the citizens have access to that opinion and its legal reasoning - that’s one thing, but I just don’t see how you generate “secret law” constiutitonally. Which IMO goes pretty far to answering the “good faith” issue vis a vis telecoms right there. fwiw
Last edited by NavnDansk on Wed Apr 02, 2008 4:54 pm, edited 1 time in total.
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Postby NavnDansk » Wed Apr 02, 2008 4:53 pm

Michael Mukasey and the Ghost of Alberto Gonzales
Hermann Göring got a fair trial at Nuremberg. But not Gitmo prisoners.

by Nat Hentoff
April 1st, 2008

Attorney General Michael Mukasey, the former much-lauded chief judge of the U.S. District Court for the Southern District of New York, is increasingly morphing into a replica, in key respects, of his embarrassing predecessor, Alberto Gonzales—a loyal enabler of George W. Bush's disdain for the Constitution's separation of powers, as well as the Bill of Rights.

Gonzales once testified before Congress that in the Constitution, there is no guaranteed individual right of habeas corpus. If that were even remotely true, huge numbers of law-school textbooks would have to be revised.

Now, during a March 14 speech at the London School of Economics, his successor Mukasey stated that the long-delayed trials of Guantánamo prisoners—six of them to start this year—will have "all the protections [for the defendants] we regard as fundamental." But he neglected to mention one glaring, discordant fact: that Colonel Morris D. Davis, the former chief prosecutor for the Office of Military Commissions, which will be conducting these trials, resigned in protest over their lack of credibility last October.

"I resigned on that day," he wrote in a Los Angeles Times op-ed piece in December 2007, "because I felt the system had become deeply politicized and . . . I could no longer do my job effectively or responsibly." And in February of this year, Brigadier General Thomas Hartmann, the legal adviser for these military commissions, refused to rule out the use of "evidence" that had been obtained by waterboarding—which nearly everyone but Mukasey defines as torture.

Despite these developments, our attorney general insisted in his London speech that once the trials start, "the world will see not only the crimes of Al Qaeda put on display, but also a justice system fully consistent with our shared Anglo-American legal tradition as well as the standards of international law."

The world, including our delighted enemies, will also see Colonel Davis—who was, it bears repeating, the former chief prosecutor at Guantánamo—appearing as a witness for one of the defendants, Salim Ahmed Hamdan, purportedly a former driver for Osama bin Laden. Colonel Davis will testify that the charges against Hamdan must be dismissed because of highly improper interference by the Pentagon in the very same legal process so celebrated by Michael Mukasey.

In a startlingly candid—and indeed courageous—statement to The Nation (March 10), Colonel Davis related that while he was still chief prosecutor, he told Defense Department general counsel William Haynes that the forthcoming trials could conceivably produce some acquittals. Haynes's response, according to Davis: "Wait a minute, we can't have acquittals. If we've been holding these guys so long [without charges], how can we explain letting them get off? . . . We've got to have convictions!"

What especially brought back for me Alberto Gonzales and his disingenuous tenure at the Justice Department was reading Mukasey's assurances to his London audience that the fairness of the Guantánamo trials would "exceed those used at Nuremberg."

The leader of the United States prosecution team at Nuremberg was Supreme Court Justice Robert Jackson, for whom due process had the force of religion. What he and the rest of that international court provided those Nazi monsters, and the world at large, was a historic model of how a thoroughly fair trial must be conducted, even for the most notorious defendants.

The specifics of the due process guaranteed to Hitler's mass murderers are detailed at length in Letters From Nuremberg: My Father's Narrative of a Quest for Justice (Crown). In it, Connecticut Senator Christopher Dodd reprints the letters that his father, Thomas Dodd, the no. 2 American prosecutor at Nuremberg, sent to his wife, including the following passage: "Those of us who were privileged to serve at the Nuremberg trial are proud of the entire proceeding. . . . Every right of the defendants was scrupulously observed. They were given every possible opportunity to make every explanation and every possible defense.

"Witnesses were obtained for them merely at their request. Documents were made available, library facilities were at their disposal, and throughout every hour of the trial they were afforded every opportunity to answer every charge."

Among the defendants experiencing a form of justice hitherto alien to their own bestial natures were Hermann Göring, Albert Speer, Joachim von Ribbentrop, and Rudolf Hess.

Unlike the Guantánamo detainees, these defendants had civilian lawyers who were not commanded to hand over the notes of private conversations with their clients to their captors. And those lawyers could cross-examine every witness against their clients, none of whom were giving evidence obtained through "coercion" (a/k/a torture). Nor was there hearsay testimony or secret witnesses, as is the case at Guantánamo.

There were no video cameras at the time of Nuremberg, but had there been, both Jackson and Dodd would have angrily rejected what has been revealed of the practices at Guantánamo since 2002—as recently disclosed and documented by New Jersey's Seton Hall Law Center for Politics and Research in the report "Captured on Tape: Interrogation and Videotaping of Detainees in Guantánamo."

During the past six years, there have been over 24,000 interrogations of the Guantánamo prisoners, and every one of them was videotaped. Given that the CIA has already acknowledged destroying two of its interrogation tapes, it's important to learn how many of these videotapes have since been destroyed to eliminate evidence of the "coercive" interrogations that were used to extract "evidence" for the preliminary hearings and eventual trials. The Seton Hall report does cite, among others, "one government report [of] detainee treatment so violent as to shake the camera in the interrogation room [and] cause severe internal injury" to the prisoner. Perhaps Attorney General Mukasey should look into this question himself.

In his London speech, Mukasey also did not refer to the February letter to American and Canadian leaders from bar associations around the world, which demanded the outright closing of Guantánamo before more damage is done to the rule of law.

Among the signatories to the letter, as reported on February 26 by Agence France Press, were bar associations from Australia, Britain, France, Finland, South Africa, Ireland, Scotland, Luxembourg, Turkey, Romania, and—Mr. Mukasey—Iraq!

If elected, will President McCain retain Michael Mukasey as this nation's chief law-enforcement officer?
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