Torture

ACLU Lawyer: Torture Probe Too Narrowly Focused

Zachary Roth | August 31, 2009, 4:45PM

Earlier today, Jameel Jaffer of the ACLU went on MSNBC, and made a crucial point about the decision to probe torture.

The problem, argued Jaffer, is not that we're investigating clear evidence of law-breaking -- as Dick Cheney and countless conservatives would have it. Rather, it's that the scope of the investigation, as we've noted, appears to be unduly narrow. As things stand, it focuses on CIA personnel, but ignores the Bush administration officials -- both Justice Department lawyers like John Yoo, and high-ranking policy-makers like Cheney himself -- who authorized and approved torture in the first place.

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Justice Department

Only Yoo: Report Details Bush White House Use Of Hand-Picked DOJ Lawyer To Justify Warrantless Wiretapping

Zachary Roth | July 14, 2009, 4:03PM

The fact that John Yoo was the only Justice Department OLC official who was "read into" the surveillance program -- even though he wasn't the head of OLC at the time -- has already been noted by others looking through the inspectors general report on the program released last week.

But one excerpt from the report is worth paying particular attention to, since it underlines the special role that Yoo came to play on the White House's behalf.

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Barack Obama

Holder May Investigate Torture -- But Several Probes Are Already Underway

Zachary Roth | July 13, 2009, 2:34PM

The pendulum appears to have swung back in the other direction on the issue of criminal investigations into Bush-era torture. It had looked for a while like President Obama's stated desire to look forward not back had carried the day. But now it appears that Attorney General Eric Holder -- independent of his boss's political concerns, which is how things should work -- is leaning back towards initiating a probe. The news was first reported over the weekend by Newsweek, then picked up today by the New York Times and Washington Post.

But whatever Holder ultimately decides, there are already several ongoing government efforts to investigate torture, which figure to substantially fill out our still patchwork understanding of the issue. So as we wait for official word from the Justice Department on a criminal inquiry, it's worth being clear about what those efforts are, and how they relate to each other.

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Alberto Gonzales

Gonzo: Don't Blame Me For Torture -- I Wasn't At DOJ Yet

Zachary Roth | May 26, 2009, 5:32PM

TPMmuckraker favorite Alberto Gonzales went on CNN this afternoon to talk Sotomayor.

But Wolf Blitzer also asked him about the ongoing torture debate. And it was interesting to see that Gonzo -- who was White House counsel at the time the torture policies were first formulated -- seemed eager to shift any blame onto the Justice Department he would later go on to lead.

Pressed by Blitzer about his role in approving torture, he first clarified that he wasn't at the Justice Department at the key time, and said "It's the responsibility of the Department of Justice to provide legal guidance on behalf of the executive branch."

In other words: blame Ashcroft, Yoo, and Bybee.

Of course, it's unclear how that stance lines up with a report that Gonzo, while at the White House, personally signed off on CIA requests to conduct torture.

Gonzo also assured Blitzer: "I stand by my record," and "I did my best to defend our country."

Watch:

John Yoo

Yoo Must Be Joking! Bush Torture Architect Used Philly Inquirer Column To Attack Political Opponents

Zachary Roth | May 12, 2009, 3:56PM

So we told you earlier today that the Philadelphia Inquirer has signed up Bush torture guru John Yoo as a columnist.

But it gets worse. Greg Sargent points out that in March, Yoo used his new perch to attack civil libertarians who have criticized the Bush administration's expansion of executive power -- an expansion in which Yoo played a key role.

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John Yoo

Yoo's New Gig: Writing Column For Philly Inquirer

Zachary Roth | May 12, 2009, 11:30AM

It was one thing when the Philadelphia Inquirer gave a column to hard-core right-winger Rick Santorum. But that looks like a responsible decision compared to their latest hiring...

Will Bunch, of the Philadelphia Daily News (a unit of the Inquirer), reports that in late 2008, the Inquirer quietly signed a contract with John Yoo, giving a monthly column to the architect of Bush's torture program.

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Torture

WaPo: Bushies Lobbying To Water Down Torture Report

Zachary Roth | May 5, 2009, 4:47PM

It looks like the Bushies are going all in to limit the damage from those torture memos.

The Washington Post reports that former Bush administration officials have launched a "behind-the-scenes lobbying campaign," designed to pressure DOJ to soften its forthcoming ethics report into the lawyers who approved torture.

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Torture

Turley: We Need A Special Torture Prosecutor, Not Some Lame Commission

Zachary Roth | April 22, 2009, 10:02AM

Jonathan Turley, the media-friendly George Washington Law School professor, who's an outspoken advocate of curbing executive power, gave a bravura performance on MSNBC's Countdown last night, on the subject of possible torture prosecutions.

Arguing that investigations aren't just necessary but long overdue, Turley made two important points that have been getting a bit lost in the rapid-fire debate lately.

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George Bush

Nadler And NYT: Impeach Bybee For Torture Memo

Zachary Roth | April 20, 2009, 2:36PM

More fallout from last week's release of the Bush DOJ's torture memos...

Both Congressman Jerry Nadler and the New York Times are calling for Jay Bybee, the author of one of the memos, who's now a federal judge, to be impeached.

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John Yoo

More OLC Memos To Come?

Zachary Roth | March 3, 2009, 4:16PM

Some followup by the New York Times on the Bush-era OLC memos released yesterday by the Justice Department...

Department officials have told the paper that they may soon release more secret opinions about counter-terror tactics. Those that contain classified information will need to be cleared with other government agencies before they can be released.

Separately, some Democrats are jumping on the controversial memos to bolster their argument for a commission to look into the Bush administration's counter-terror policies.

Senate Judiciary chair Pat Leahy, who has called for such a commission, put out a statement Monday that praised the Justice Department for releasing "some of these long-secret opinions." But it also argued that a "fuller review of these policies" by the new Obama team was needed.

And Sen. Sheldon Whitehouse said: "These memos appear to have given the Bush administration a legal blank check to trample on Americans' civil rights. We need to get to the bottom of what happened at O.L.C. and ensure it never happens again."

Also, the Times picks up on that footnote in the Steven Bradbury memo that we highlighted earlier. Reports the paper:

In a footnote to Mr. Bradbury's Jan. 15, 2009, memorandum sharply criticizing Mr. Yoo's work, Mr. Bradbury signaled that he did not want his repudiation of the legal reasoning employed by Mr. Yoo to be used against Mr. Yoo as part of the ethics probe.

Mr. Bradbury wrote that his retractions were not "intended to suggest in any way that the attorneys involved in the preparation of the opinions in question" violated any "applicable standards of professional responsibility."

Steven Bradbury

Is Footnote In OLC Memo Designed To Protect Its Author?

Zachary Roth | March 3, 2009, 12:41PM

There's an interesting detail buried in those OLC memos released yesterday, that perhaps hasn't gotten the attention it deserves.

In the January 15, 2009 memo written by then-acting OLC head Steven Bradbury -- in which he repudiated many of the previous OLC memos that articulated an expansive view of presidential power in the war on terror -- there's a footnote stressing that the memo is not "intended to suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility."

Why would Bradbury have gone out of his way to make this point -- especially in the context of repudiating those opinions?

Perhaps because the Justice Department's Office of Professional Responsibility has been working on a report on whether OLC lawyers violated standards of professional responsibility when they approved harsh interrogation tactics like water-boarding. And, as Newsweek revealed last month, a draft of the report is sharply critical of three senior OLC lawyers in particular -- John Yoo, Jay Bybee, and Steven Bradbury.

The report's release was delayed after then-Attorney General Michael Mukasey and his deputy Mark Filip objected that responses from Yoo, Bybee, and Bradbury should be included. As of February 6, Attorney General Eric Holder had not yet reviewed the report, and it had not yet been turned over to Congress.

So the fact that the earlier memos have been repudiated could potentially still affect the OPR report's conclusions about the lawyers' actions. As a result, Bradbury would have had good reason to explicitly state in his recent OLC memo that the repudiation of the original opinions did not bear on issues of professional responsibility.

It'll be interesting to see, when the OPR report is released, whether its authors agree with that take.

John Yoo

Experts Weigh In On Bush Justice Memos

Zachary Roth | March 3, 2009, 11:53AM

So what to make of those Bush administration legal memos, formulating counter-terrorism policy, that the Justice Department released yesterday?

The key news seems to be that at least ten of the opinions issued by the department's Office of Legal Counsel in the early years of the War on Terror -- outlining an expansive view of executive power -- were later deemed flawed and ordered withdrawn. We had previously known that this had occurred with just two such opinions.

In one memo, John Yoo argued that during wartime, the president could ignore free speech protections and could order warrantless searches. In another, the Bush DOJ claimed that detainees could be sent to countries that commit human rights abuses, as long as the US did not intentionally seek their torture. Five days before Bush left office, both of these opinions and several others were repudiated in a separate "memorandum for the Files" by Stephen Bradbury, then the acting head of the Office of Legal Counsel. That document was also released yesterday.

Other Bush administration memos that were later withdrawn argued that the president could unilaterally abrogate foreign treaties; could ignore guidance from Congress in dealing with terrorist suspects being detained; and could conduct warrantless wiretapping.

Since the release of the memos yesterday, expert opinion has essentially been united in denouncing the opinions.

Walter Dellinger, who ran OLC during the Clinton administration tells the New York Times that the Bradbury memo "disclaiming the opinions of earlier Bush lawyers sets out in blunt detail how irresponsible those earlier opinions were."

Jennifer Daskal of Human Rights Watch speaking to the Washington Post, singles out the memo that allowed the administration to send detainees to countries that commit human rights abuses. "That is [the Office of Legal Counsel] telling people how to get away with sending someone to a nation to be tortured," Daskal said. "The idea that the legal counsel's office would be essentially telling the president how to violate the law is completely contrary to the purpose and the role of what a legal adviser is supposed to do."

Orin Kerr, a law professor at George Washington, focuses on the memo that gave the administration the power to conduct warrantless wiretapping. Writing on the blog The Volokh Conspiracy, Kerr calls the argument that FISA doesn't apply to national security issues -- which appears to be the memo's argument -- "an extremely lame analysis." He continues: "Much of the point of FISA was to regulate that."*

And Salon's Glenn Greenwald is particularly outraged by an opinion arguing that the president can deploy the US military inside the US, directed at both foreign nationals and US citizens. Greenwald calls this "nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens."

He concludes:

If this isn't the unadorned face of warped authoritarian extremism, what is?

* This paragraph has been corrected from an earlier version which reported incorrectly that the blog post was written by Eugene Volokh.

Torture

Dem Senators To DOJ: How's That Report On Torture Opinions Coming?

Zachary Roth | February 16, 2009, 2:36PM

Looks like it's not just journalists who are interested in the progress of that DOJ report into whether Bush administration lawyers shaded their opinions on the legality of harsh interrogation methods in order to please the White House.

In the wake of Newsweek's story from over the weekend that a draft of the report criticizes several top Bush officials, including John Yoo, Democratic senators Dick Durbin and Sheldon Whitehouse, both of whom sit on the Judiciary committee, have sent a letter to Marshall Jarrett, who heads the DOJ's Office of Professional Responsibility and is overseeing the report.

In the letter, the senators, who wrote to Jarrett last year requesting the investigation, note that, according to Newsweek, a draft of the report was submitted in the final weeks of the Bush administration. They ask for an update on the status of Jarrett's probe by February 23.

They also suggest that they'll take action if the evidence shows that DOJ lawyers shaped their opinions to conform to the White House's views, writing:

Our intelligence professionals should be able to rely in good faith on the Justice Department's legal advice. This good faith is undermined when Justice Department attorneys provide legal advice so misguided that it damages America's image around the world and the Justice Department is forced to repudiate it. If the officials who provide such advice fail to comply with professional standards, they must be held accountable in order to maintain the faith of the intelligence community and the American people in the Justice Department."

As we noted before, it's not clear that the report will ultimately be released to the public. But at least some in Congress appear to be taking it seriously.

Alberto Gonzales

Newsweek: Report Will Blast Bush Lawyers On Torture Opinions

Zachary Roth | February 16, 2009, 12:27PM

Those Bush lawyers who approved torture may not be in the clear just yet.

Newsweek reveals that a report into the integrity of opinions given by Bush DOJ attorneys, approving water-boarding and other harsh interrogation techniques, is sharply critical of several top officials, including John Yoo, the author of the infamous "torture memo".

A draft of the report -- which was authored Marshall Jarrett, the head of the department's Office of Professional Responsbility -- was submitted in the final weeks of the Bush administration. But it looks like Bush's DOJ brass pushed back.

According to Newsweek's sources, former Attorney General Michel Mukasey, and his deputy Mark Filip, "strongly objected to the draft." Apparently, Filip wanted the report to include responses from the three DOJers most heavily criticized -- in addition to Yoo, that was Jay Bybee, another top department lawyer who wrote opinions authorizing harsh tactics, and Steven Bradbury, who ran the department's Office of Legal Counsel.

A spokesman for the Obama DOJ told Newsweek it's reviewing the matter.

It sounds like the report could contain be pretty hard-hitting. Newsweek says it's focusing on "whether the memo's authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted." According to one source, the investigators have obtained, in the magazine's words, "internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted."

But Yoo et al. may not be in much legal jeopardy. Newsweek adds that, at worst, the report "could be forwarded to state bar associations for possible disciplinary action".

It's also not clear we'll ever get to see the report. Jarrett told the Senate Judiciary committee last year that he'd inform them of his findings, but only that he's "consider" releasing a public version.

If this isn't an issue that deserves a full public airing, it's hard to know what would be.

John Yoo

Impressive New Team Taking Shape For DOJ

Zachary Roth | January 21, 2009, 12:36PM

It's good to see that the grownups are back in charge at the Justice Department.

Even before the Senate has voted on Eric Holder's nomination to be Attorney General, the department is filling up with respected legal figures whose records suggest an intention to use DOJ as America's law firm, not the president's.

Neal Katyal, the Georgetown Law professor who successfully challenged the military trials in Guantanamo while representing Osama bin Laden's driver, will be deputy solicitor general. He'll join Elena Kagan, the dean of Harvard Law School, who has been nominated to be Solicitor General.

Meanwhile, Katyal's Georgetown colleague Marty Lederman -- known to the blogosphere from his writing at the legal blog Balkanization -- will return to the Office of Legal Counsel as deputy assistant Attorney General. With his record of opposition to warrantless wiretapping and torture, Lederman figures to represent quite a change -- for the better -- from another recent OLC lawyer, torture-memo author John Yoo.

Lederman will work with Dawn Johnsen, an Indiana University law professor and vocal critic of Bush terror policies, who's been nominated to head the OLC, as well as David Barron, who will serve as the principal deputy. Both Johnsen and Barron served at OLC during the Clinton administration.

Add to that the news that fired US Attorney David Iglesias will be prosecuting Guantanamo cases as a military prosecutor, and you get the impression that on issues of justice, many of the wrongs of the Bush years are in the process of being righted.

Alberto Gonzales

Gonzo: I'm A Casualty Of The War On Terror

Zachary Roth | December 31, 2008, 9:34AM

Looks like Gonzo still doesn't quite get it.

Former Attorney General Alberto Gonzales -- under whose tenure the Justice Department often appeared to take its orders from the White House political office -- sat down with the Wall Street Journal in an effort to clear his name. But we're guessing he did himself more harm than good.

Gonzo appeared genuinely unable to grapple with why he might be unpopular. "What is it that I did that is so fundamentally wrong, that deserves this kind of response to my service?" he asked.

And he wasn't above wallowing in self-pity, making a comparison that would likely rankle families of 9/11 and Iraq war victims: "[F]or some reason, I am portrayed as the one who is evil in formulating policies that people disagree with. I consider myself a casualty, one of the many casualties of the war on terror."

What about that infamous hospital visit, in which Gonzales, at the time the White House counsel, along with White House chief of staff Andy Card, pressed then-AG John Ashcroft to sign off on a secret government program while Ashcroft was hospitalized -- and, by some accounts, going in and out of consciousness -- after gall bladder surgery? Gonzo has no regrets. "I found Ashcroft as lucid as I've seen him at meetings in the White House," he said.

He also took a shot at James Comey, the respected former DOJ official who revealed details of the hospital visit in Congressional testimony: "He didn't have the decency to notify anyone what he was about to testify," Gonzales said of Comey. "That was extremely disappointing."

And Gonzo put the blame for the memos authorizing torture squarely on John Yoo, the then-DOJ lawyer who wrote them -- even though even though there's no evidence that Gonzo, as White House counsel, raised any objection.

Reports the Journal:

John Yoo, the then-Justice official who had been assigned to draft the memos, had strong feelings and no one could have pressured him to write the memos a certain way, Mr. Gonzales said.

Gonzo also told the Journal he's at work on a book about his tenure at DOJ to set the record straight. He doesn't have a publisher, but is writing it "for my sons, so at least they know the story."

And he's not having much success in his post-government career. Says the paper:

The Harvard Law School graduate, onetime corporate lawyer and Texas judge also hasn't been able to land a job. He has delivered a few paid speeches, done some mediation work and plans to do some arbitration, but said law firms have been "skittish" about hiring him.

It's hard being a casualty of the war on terror.

John Ashcroft

White House Insisted On Bush Loyalists For Top DOJ Posts In 2003

Andrew Tilghman | July 17, 2008, 10:01AM

Former Attorney General John Ashcroft left the Department of Justice more than three years ago, but he's still in the news and will be up on Capitol Hill this morning for testimony before the House Judiciary Committee.

This morning's Washington Post takes us back to to 2003 and shows how the White House insisted on getting its own man inside the DOJ's Office of Legal Counsel.

Then-Attorney General John D. Ashcroft offered the White House a list of five candidates to lead the Justice Department Office of Legal Counsel in early 2003, but top administration officials summarily rejected them in favor of installing a loyalist who would provide the legal footing needed to continue coercive interrogation techniques and broadly interpret executive power, according to two former administration officials.

In an angry phone call hours after Ashcroft's list reached the White House, President Bush's chief of staff, Andrew H. Card Jr., quickly dismissed the candidates, all Republican lawyers with impeccable credentials, the sources said. He and White House counsel Alberto R. Gonzales insisted that Ashcroft promote John Yoo, a onetime OLC deputy who had worked closely with Gonzales and vice presidential adviser David S. Addington to draft memos supporting a controversial warrantless wiretapping plan and detainee questioning techniques.

Ashcroft's refusal created a tense standoff and was the only time in the attorney general's tenure that Bush was called upon to resolve a personnel dispute, the sources said.

Ashcroft's testimony starts at 10 AM ET. We'll be watching and posting, so stay tuned for updates.

David Addington

Quote of the Day: Vice President Is a "Barnacle" on the Legislative Branch

Kate Klonick | June 26, 2008, 2:35PM

Between David Addington failing to submit testimony, and John Yoo forgetting his words, not a whole lot was cleared up by the House Judiciary Committee's hearing on interrogation techniques at Guantanamo Bay.

But on the bright side Rep. Steve Cohen (D-TN), did manage to clarify a very important question. Just what branch of government is the Vice President in?

Cohen: Mr. Addington, what branch are we in?

Addington: Ah, sir, perhaps the best that can be said is that the Vice President belongs neither to the executive nor to the legislative branch, but is attached by the Constitution to the latter. That's from two legal opinions issued by the office of legal counsel to the Department of Justice dated March 9th, 1961, and April, I believe, it's 18th, 1961 by, I believe, Mr. Katzenbach if I remember. . .

Cohen: So he's a member of the legislative branch?

(cross talk)

Addington: No. I said attached by the Constitution to the latter. He is not a member of the legislative branch because the Constitution says that the Congress consists of a Senate and a House of Representatives. The Constitution further says that the Senate consists of Senators and the House of Representatives consists of Representatives and he is neither a Senator nor a Representative.

Cohen: But he is attached to the legislative branch?

Addington: That's the quote I read you.

Cohen: So he's kind of a barnacle.

(voice off camera): Kind of a what?!

Addington: He is attached. . . the word was attached by the Constitution to the latter. I don't consider the Constitution as a barnacle, Mr. Cohen.

Cohen: No, the Vice President. Since he's really not fish or fowl, he's just attached to something.

But don't take our word for it:

David Addington

Law Professor Confused by SAT Word

Kate Klonick | June 26, 2008, 1:01PM

Rep. Keith Ellison (D-MN) tried to pin John Yoo down on what exactly happened after he wrote his most infamous torture memo for the Bush administration, but like David Addington before him, Yoo seemed to have a small problem remembering his words:

Ellison: The name on the memo was Bybee, but you contributed to the memo right?

Yoo: Yes, sir.

Ellison: The memo was implemented at some point. Is that right?

Yoo: What do you mean by implemented sir?

Yoo later cited attorney client privilege in declining to answer questions about what happened after he wrote the memo.

Rep. Artur Davis (D-AL) interrupted Ellison's line of questioning to summarize the subcommittee interrogators' frustrations:

I have been on the committee for a year and a half, I've never seen two witnesses, frankly, struggle as much to appreciate ordinary use of terms and questions. Would you consider instructing the two witnesses to answer the questions that they're asked and if they wish to elaborate or clarify they can ask to do so, but given that we have time constraints I would ask that the chair admonish the witnesses to err on the side of being responsive as opposed to constantly quibbling over word choice because I've never seen it to the degree I've seen it today.

The seven and a half minutes of excruciating video are here:

David Addington

Conyers to Yoo: Could President Order Suspect Buried Alive?

Kate Klonick | June 26, 2008, 11:14AM

David Addington is going to say as little as possible to the House Judiciary Committee today. The Vice President's chief of staff didn't submit testimony today or make an opening statement, and he successfully stonewalled the first round of questioning from subcommittee Chairman Jerrold Nadler (D-NY). He did submit 10 exhibits to the committee as evidence, but it's not yet clear what they consist of.

But then it was Chairman John Conyers (D-MI) turn to ask questions. And he went toe to toe with Yoo, the former DOJ attorney and torture-memo author extraordinaire:

Conyers: Could the President order a suspect buried alive?

Yoo: Uh, Mr. Chairman, I don't think I've ever given advice that the President could order someone buried alive. . .

Conyers: I didn't ask you if you ever gave him advice. I asked you thought the President could order a suspect buried alive.

Yoo: Well Chairman, my view right now is that I don't think a President . . . no American President would ever have to order that or feel it necessary to order that.

Conyers: I think we understand the games that are being played.

Here's the video from the hearing:

David Addington

Addington and Yoo to Testify Today

Kate Klonick | June 26, 2008, 9:13AM

Just in case you've forgotten (and we hope they don't), David Addington and John Yoo are set to testify before the House Judiciary Committee this morning on interrogation practices at Guantanamo. It starts at 10 ET and if they actually show up, we'll be watching and posting developments, so be sure to check back for more.

If you'd prefer to watch yourself, it will be televised on CSPAN-3, or you can watch the streaming video straight from the Committee's website.

David Addington

Addington and Yoo to Testify on Interrogation Practices

Kate Klonick | June 24, 2008, 5:31PM

Hell must be freezing over.

David Addington, the Vice President's Chief of Staff and executive privilege aficionado is set to testify with John Yoo, former Justice Department Official and spinner of words, on interrogation practices in Guantanamo this Thursday, June 26 in front of the House Judiciary Committee.

As we've reported before, this has been a long time coming. We're taking bets to see who pulls a Feith.