Last month, Democrats, with the help of a few crossover Republicans (but not Sen. John McCain (R-AZ)), passed a bill that would have limited the CIA's interrogation techniques to those authorized by the Army Field Manual. Waterboarding and other "enhanced interrogation" techniques (use of hoods or duct tape over the eyes, inducing hypothermia, etc.) would have been specifically and unambiguously outlawed.

President Bush, as promised, vetoed that bill, saying that restricting CIA interrogators "could cost American lives." An override vote failed in the House.

Now Senate Democrats are going to try again. Sen. Dianne Feinstein (D-CA) says that she'll introduce the measure as an amendment to 2009's Senate intelligence authorization bill, because "at the time [of the veto] we vowed to come back - again and again if necessary - to ensure that torture by U.S. intelligence agencies is outlawed for good." Sens. Chuck Hagel (R-NE), Olympia Snowe (R-ME), Sheldon Whitehouse (D-RI), John Rockefeller (D-WV), Russ Feingold (D-WI), Barbara Mikulski (D-MD), and Ron Wyden (D-OR) are also sponsoring the amendment. Over the weekend, Wyden released correspondence from the Justice Department showing how lawyers there dealt with current ambiguity in the relevant laws. What counted as an "outrage upon personal dignity," a DoJ official wrote, depended on whether "an act is undertaken to prevent a threatened terrorist attack."

House Judiciary Committee Chairman John Conyers (D-MI) knew he was going to get a fight. And he's getting one.

Earlier this month, he scheduled a hearing for next week on the administration's authorization of torture, and along with John Yoo, has invited former Attorney General John Ashcroft, former CIA Director George Tenet, former Undersecretary of Defense Douglas Feith, Chief of Staff to the Vice President David Addington, and former Assistant Attorney General Daniel Levin.

Yesterday Conyers released some of the correspondence he's been having with lawyers for Addington, Yoo, and Ashcroft. As expected, none of them want to testify, and they're not short on reasons.

Both Yoo and Ashcroft say that they have not been authorized by the Department of Justice to discuss the context of the key torture memos, internal discussions about them, and the like. And both say that they are the subject of lawsuits, and so it would be "inappropriate" to testify.

But it won't surprise anyone that the letter from Kathryn Wheelbarger, Vice President Dick Cheney's counsel, is the real masterpiece. It is by now common knowledge that Addington is by far the most powerful and influential lawyer in the administration, particularly with regard to the controversial counterterrorism policies such as torture and the warrantless wiretapping program. But Wheelbarger says that Conyer's got the wrong guy. If you're looking to discuss presidential powers in war time, then you really ought to be bugging a presidential aide, she writes. And if it's interrogation you want to talk about, then "the Director of National Intelligence or his designee and the Secretary of Defense or his designee, respectively, would be the appropriate witness." From there, it's on to an argument about how the power of Congress to investigate is limited, so Addington cannot be compelled to show. And then on to an argument about how Addington, due to privilege concerns, wouldn't be able to say much even if he did show voluntary.

So to sum up, that's: You're asking the wrong person, but even if you were asking the right person, you couldn't make him show up, and even if he did show up, he wouldn't say anything.

As for Conyers, he says he will issue subpoenas to those who do not agree to appear by this Friday.

Just another day at Guantanamo, I guess.

On the witness stand was the former chief prosecutor for the tribunals, Col. Morris Davis. Called to testify by defense lawyers, he told the court what he'd told the press -- that he'd quit after becoming convinced that the political appointees overseeing the system were about politics first and justice second, that he was told "we can't have acquittals," and that he was pushed to land indictments or plea deals before the election. He also said that his superiors saw no problem with using confessions obtained through torture, including waterboarding. Everything is "fair game," he says he was told, "let the judge sort it out."

And then there's Salim Ahmed Hamdan, the alleged driver for Osama bin Laden. Hamdan's lawyers say that interrogators beat him and sexually humiliated him, among other things, and are arguing that he's unfit to stand trial because he's essentially been driven crazy by spending 22 hours in solitary confinement for the past several years. His lawyers say "he is suicidal, hears voices, has flashbacks, talks to himself and says the restrictions of Guantánamo 'boil his mind.'"

Nevertheless, Hamdan was there yesterday -- sort of:

But Hamdan, during the morning session, also appeared to show some evidence of mental deterioration, which his attorneys have ascribed to mistreatment and lengthy solitary confinement. He seemed in a daze as he was led into court in his khaki detention uniform.

He then engaged in a short, subdued rant to Allred about how he believes he is not being afforded human rights and would like to use the bathroom without soldiers watching him. He also tried at one point to get up from the defense table to leave the room. "I refuse participating in this, and I refuse all the lawyers operating on my behalf," Hamdan said. He returned for the afternoon session in traditional Yemeni garb and a sport coat and agreed to continue.

And just to complete the context for the scene, the Post notes, is the fact that the Supreme Court is nearing "a decision on whether the Military Commissions Act of 2006 that laid the legal foundation for these hearings violates the Constitution by barring any of the approximately 275 remaining Guantanamo Bay prisoners from forcing a civilian judicial review of their detention." In the meantime, the ugliness of Gitmo is on full display.

It's the same lesson from the administration over and over again: with torture, all things are relative.

Back in January, for instance, Attorney General Michael Mukasey patiently explained to Sen. Joe Biden (D-DE) how relative that whole conscience shocking thing is. You have to "balance the value of doing something against the cost of doing it."

And this weekend, Sen. Ron Wyden (D-OR) produced correspondence with the Justice Department showing a similar dance. From The New York Times:

The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law....

While the Geneva Conventions prohibit "outrages upon personal dignity," a letter sent by the Justice Department to Congress on March 5 makes clear that the administration has not drawn a precise line in deciding which interrogation methods would violate that standard, and is reserving the right to make case-by-case judgments.

"The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act," said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public....

In one letter written Sept. 27, 2007, Mr. Benczkowski argued that "to rise to the level of an outrage" and thus be prohibited under the Geneva Conventions, conduct "must be so deplorable that the reasonable observer would recognize it as something that should be universally condemned."

It's become cystal clear from Mukasey's testimony to Congress that despite the Supreme Court decisions and efforts by Congress to prohibit the use of torture, there is still plenty of ambiguity. The president's executive order last year explicitly ruled out the worst of the worst techniques, like murdering, raping or sexually humiliating detainees, but was silent on what is allowed.

And the administration has been successful in keeping things ambiguous for CIA interrogators. When Democrats tried to limit the CIA to using techniques approved by the Army Field Manual, legislation that would have specifically and unambiguously ruled out those "enhanced interrogation" techniques that fall in the gray area, key Republicans like John McCain helped keep things hazy.

Georgetown students will no longer have the benefit of Douglas Feith's insights into international law, his talent for seeing connections where others do not, or his ability to pack a PowerPoint presentation with punch. That's because his time there is up:

Asked about Feith's status, Robert Gallucci, dean of Georgetown's foreign service school, told us that when Feith was hired -- something that caused an uproar among the faculty -- it was understood he "was on a two-year appointment." Any decision not to renew should not be seen as "a judgment on his performance," Gallucci said, noting that Feith's students' "course evaluations were really good."

Feith, author of a bestseller about his Pentagon days called "War and Decision," said he hadn't decided what to do next. "I'm intensely occupied with book stuff," and there are "several things I'm thinking about," he said.

Word is that keeping Feith on beyond the two-year term again would have infuriated a number of faculty members.

Testifying before the House Judiciary Committee yesterday, FBI Director Robert Mueller made it as clear as he could what the FBI's reaction to the CIA's use of waterboarding and other forms of torture in 2002 had been: keep FBI agents out of trouble.

But when House Democrats pressed as to why the FBI hadn't investigated the abuses, Mueller said his hands were tied. The CIA and the Defense Department had the green light. "There has to be a legal basis for us to investigate, and generally that legal basis is given to us by the Department of Justice." Thanks to John Yoo and others in the Justice Department's Office of Legal Counsel, the CIA had its "golden shield."

He also testified that in 2002, he'd "reached out" to the Pentagon and the Department of Justice "in terms of activity that we were concerned might not be appropriate -- let me put it that way." Mueller said he couldn't testify as to what the reply was, since it might be classified. Given the fact that a group of senior administration officials had agreed on the use of the techniques, you can guess what the answer was. Here's video:

It's certainly not the first time that the FBI has separated itself from the conduct of CIA and military interrogators. FBI agents involved in the Abu Zubaydah's case have been publicly critical of brutal interrogation techniques that reaped "crap." Newsweek reported that one FBI agent "was so offended [by Zubaydah's treatment] he threatened to arrest the CIA interrogators." Of course, such an arrest could not happen without the Justice Department's say-so -- and it was on the DoJ's authority that the interrogation was taking place.

Back in October, The Los Angeles Times reported that Mueller was suspicious of the legal memos that had authorized the torture and thought they might be overturned. Yoo's memos authorizing torture were ultimately overturned -- but Attorney General Michael Mukasey has made clear that doesn't mean the interrogators who relied on them have anything to worry about. From the Times:

By mid-2002, several former agents and senior bureau officials said, they had begun complaining that the CIA-run interrogation program amounted to torture and was going to create significant problems down the road -- particularly if the Bush administration was ever forced to allow the Al Qaeda suspects to face their accusers in court.

Some went to FBI Director Robert S. Mueller III, according to the former bureau officials. They said Mueller pulled many of the agents back from playing even a supporting role in the interrogations to avoid exposing them to legal jeopardy, in the belief that White House and Justice Department opinions authorizing the coercive techniques might be overturned.

"Those guys were using techniques that we didn't even want to be in the room for," one senior federal law enforcement official said. "The CIA determined they were going to torture people, and we made the decision not to be involved."

The full transcript of Mueller's exchanges on this with Reps. Steven Cohen (D-TN) and Robert Wexler (D-FL) are below.

Read more »

Whatever fellow said "ask and you shall receive" never tried to get anything out of the Bush administration.

More than six years after the administration initiated its now infamous battery of policies to fight the global war on terror, there is still a pitched battle over whether certain details can be released. Just earlier this month, there were new revelations about the involvement of senior administration officials in crafting the CIA's interrogation program, and the release of John Yoo's 2003 memo authorizing the military's use of torture shocked even those who didn't think they could be shocked any more.

The latest: Amnesty International USA, the Center for Constitutional Rights, and the International Human Rights Clinic at NYU School of Law teamed up to press in a lawsuit for the release of documents related to the administration's programs of secret detentions, renditions, and torture. Now the CIA has replied that it has 7,000 responsive documents that it won't be turning over. Among them:

Nineteen of those documents were withheld from disclosure specifically because the Bush administration decided they are covered by a "presidential communications privilege," according to the filings, made in federal court in Manhattan. Some were "authored or solicited and received by the President's senior advisors in connection with a decision, or potential decision, to be made by the president."

Although the precise content of the documents is unknown, the agency's statements illustrate the extent to which senior White House officials were involved in decision-making on CIA detentions, interrogations, and renditions, a term for forced transfers of prisoners.

Among the protected documents are "dozens" of communications between the CIA and the Justice Department's Office of Legal Counsel, John Yoo's old shop, otherwise known as the place where a fellow can get himself an "advance pardon." The CIA refuses to turn those documents over, but it's candid about what they were all about:

"The CIA's purpose in requesting advice from OLC was the very likely prospect of criminal, civil, or administrative litigation against the CIA and CIA personnel who participate in the Program," said a declaration from Ralph S. DiMaio, information review officer for the CIA's clandestine service. He added that the CIA considered such proceedings "to be virtually inevitable."

You can see the few documents that the groups were able to get from the CIA here.

You didn't think that John Yoo would come easily, did you?

Earlier this month, House Judiciary Committee Chair John Conyers (D-MI) invited Yoo to testify to the committee about his time as the administration's point man for authorizing the use of torture in interrogations. Now Yoo, through his lawyer, is saying that he's not coming:

In a letter, Yoo's lawyer told Conyers he was "not authorized" by DOJ to discuss internal deliberations.

"We have been expressly advised by the Office of Legal Counsel of the United States Department of Justice that Professor Yoo is not authorized to discuss before your Committee any specific deliberative communications, including the substance of comments on opinions or policy questions, or the confidential predecisional advice, recommendations or other positions taken by individuals or entities of the Executive Branch," Yoo's lawyer, John C. Millian, wrote in a letter to Conyers.

Conyers has already said that a subpoena would be forthcoming if Yoo did not voluntarily agree to appear.

And it's not as if Yoo's appearance would be unprecedented. Earlier this year, the current head of the Office of Legal Counsel Steven Bradbury testified before the committee and freely discussed the Office's thinking on the matters of torture, waterboarding, and other touchy topics. And as Conyers pointed out in his letter inviting Yoo to testify, Yoo has made the rounds with the media, giving extensive interviews with Esquire and Frontline, among others.

Yet another possible legacy of former Justice Department official John Yoo's legal advice: the use of drugs on detainees as an interrogation technique.

The charge that drugs were used on detainees by the CIA and military interrogators is not a new one, The Washington Post reports, but it's given new credence by the fact that Yoo specifically authorized the use of drugs on detainees "as long as they did not inflict permanent or 'profound' psychological damage" in his recently released 2003 legal opinion.

The Department of Defense denies ever using drugs on detainees for interrogations, and the CIA, through a "senior official" speaking anonymously, did the same. But the Post reports that a number of former detainees say that they were forcibly injected with something that made them drowsy and lethargic. Others describe getting injections that made them "crazy." One Saudi says he signed a confession just to make the interrogators leave him alone, and so they did -- and he was ultimately freed years later regardless.

It all adds up to what is arguably among the greater human rights abuses in Gitmo:

Medical ethicists and experts in international law say such accounts raise serious questions. While the Geneva Conventions do not specifically refer to drugs, they ban any use of force or coercion in interrogating prisoners of war, said Barbara Olshansky, a law professor at Stanford University and the author of a book on military tribunals. "If you're talking about interrogations, you're talking about very specific prohibitions that mean you cannot use any force, at all, to interrogate someone," Olshansky said. "The law is beyond clear."

Update: See also CQ's Jeff Stein on this earlier this month.

Just how bad were John Yoo's now-infamous torture memos?

After numerous calls from Congress for the DoJ to get digging, the Justice Department's Office of Professional Responsibility told Congress in February that it is busy investigating Yoo's infamous August, 2002 torture memo. That one, signed by then Office of Legal Counsel chief Jay Bybee, limited the definition of torture to physical pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." It was the administration's so-called "golden shield" which permitted the CIA to use its most aggressive interrogation techniques, such as waterboarding.

And then in March of 2003 came Yoo's memo broadly authorizing the use of torture by military interrogators on unlawful combatants. Now OPR has told Sen. Sheldon Whitehouse (D-RI) that it will be investigating that memo, too.

It is far short of a criminal investigation. OPR's job is to police whether the Department's lawyers behave professionally, and so in this case, OPR's chief Marshall Jarrett has informed Congress that the investigation will be covering "whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys."

So the question for OPR will be whether Yoo came to his roundly-denounced conclusions in a professional, ethical manner. OPR's investigations are usually not publicly released, but Jarrett wrote that "OPR will consider releasing to Congress and the public a non-classified summary of our final report." There's no telling when that would be.

There are plenty of grumbles that the limited scope and independence of OPR's investigation (OPR reports to the attorney general) mean that it won't tell us enough and won't result in any changes. And Attorney General Michael Mukasey has already made it clear that no matter how deeply flawed an Office of Legal Counsel memo might have been (or be), anyone who relied on it "could not be the subject of a prosecution."

ABC finally got a hold of President Bush to respond to its story that top administration officials, as members of the National Security Council's Principals Committee, had signed off on "enhanced interrogation" techniques in 2002 that included waterboarding. And Bush doesn't understand what the big deal is:

"Well, we started to connect the dots, in order to protect the American people." Bush told ABC New s White House correspondent Martha Raddatz. "And, yes, I'm aware our national security team met on this issue. And I approved."...

Bush said the ABC report about the Principals' involvement was not so "startling."

The AP reported yesterday that the administration officials involved in the meetings "took care to insulate President Bush" from the decisions made during them.

It would be quite a party.

Earlier this week, House Judiciary Committee Chair John Conyers (D-MI) invited John Yoo to testify before the committee on May 6th about the infamous legal memos on torture that he issued while with the Department of Justice. If Yoo did not want to appear, Conyers wrote, then the panel would subpoena him.

Now Conyers, following up on the reports in the last couple of weeks about the role of top administration officials in authorizing the use of "enhanced interrogation" techniques including waterboarding, has invited a slew of current and former officials to testify at the hearing. Among those invited are former Attorney General John Ashcroft, former CIA Director George Tenet, former Undersecretary of Defense Douglas Feith, Chief of Staff to the Vice President David Addington, and former Assistant Attorney General Daniel Levin, who headed up the Office of Legal Counsel for a brief time.

Says Conyers: “New and troubling allegations suggest that the decisions on torture came from the highest levels of government. These reports, if true, represent a stain on our democracy. The American people deserve to hear directly from those involved.”

Of course, you can be sure that this White House, the most ardent defender of executive privilege in our lifetime, would never, ever allow Addington, the great prophet of executive privilege, to testify under any circumstances. And it also seems unlikely that any members of the National Security Council's Principals Committee (Tenet and Ashcroft) will testify about content of those meetings. But it's worth a shot.

John Yoo is a professor of law at the University of California-Berkeley School of Law. He's never been a particularly popular faculty member there, but the recent release of his March, 2003 Justice Department memo, in which he advised that military interrogators could torture detainees as long as their only motivation wasn't sadism, has made him considerably less popular. Earlier this week, the National Lawyers Guild called for Berkeley to fire Yoo.

In a statement posted on the school's website today, the school's dean Christopher Edley, Jr. offers a statement "as dean, but speaking only for myself" for why he does not think that Yoo should be fired.

His argument largely comes down to this:

As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.

Because of "the complex, ineffable boundary between policymaking and law-declaring," Edley writes, too many questions remain to pass judgment on Yoo beyond finding his legal reasoning flawed:

I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.

Thanks to ABC News and the AP's follow-up yesterday, we now have a very good idea of how the U.S. began to torture detainees in early 2002, even before the Justice Department had officially blessed the techniques by way of the infamous August, 2002 memo by John Yoo.

ABC reported earlier this week that certain brutal interrogation techniques were approved by the National Security Council's Principals Committee following Abu Zubaydah's capture in March, 2002. Among the members of that council were Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, Secretary of State Colin Powell, CIA Director George Tenet, Attorney General John Ashcroft, and it was chaired by Condoleezza Rice, then the National Security Advisor.

The question was what CIA interrogators could do to Zubaydah and by extension other high value detainees. (It's worth recalling what FBI agents say about what information Zubaydah ultimately provided.) The obvious background to all this is that the CIA interrogators did not want to later find themselves prosecuted for using torture. So everything got this high-level sign off, down to the smallest detail, according to the AP:

At times, CIA officers would demonstrate some of the tactics, or at least detail how they worked, to make sure the small group of "principals" fully understood what the al-Qaida detainees would undergo.

At the same time, John Yoo and colleagues at the Justice Department were busy working on a clear legal authorization for all of this.

He described the pressure of the situation last week to Esquire:

Yoo: The interrogation question came up, I think, in March, when Abu Zubaydah was captured. That’s what provoked that question....

Esquire: You weren’t under extraordinary time pressure?

Yoo: We were under time pressure.

Esquire: Days, weeks?

Yoo: The final version we didn’t get done till August. But we would show drafts before.

Esquire: They were taking action?

Yoo: They needed to have a sense before it was finalized what the basic outlines are.

Esquire: How long did it take to give an answer, go ahead do it?

Yoo: I don’t remember.

Esquire: Weeks, months?

Yoo: Probably weeks.

Esquire: So that’s a fair amount of time pressure, Zubaydah’s in custody.

Yoo: If you had the luxury of time, you’d spend years on this, without a doubt.

Esquire: What concerns came up, back and forth with the White House?

Yoo: There wasn’t a lot of back and forth -- people would say this is wrong, you need to delete this. I think that there was no pressure from any other agency from within the department that the opinion was going too far -- or that it wasn’t going far enough. It was very much hands off. That doesn’t surprise me considering how sensitive the issue was, people wanted the office I think to take the full responsibility.

The memo that emerged, the so-called Bybee memo, after the then-chief of the Office of Legal Counsel who signed off on it (even though Yoo, the deputy, actually authored it ), was just what the doctor ordered, the "Golden Shield," as it was called, for the CIA's interrogations. The Office of Legal Counsel, remember, has the power to effectively issue "advance pardons" for activity of dubious legality.

ABC quotes a source as saying that Ashcroft at one point asked aloud after one Principals meeting, "Why are we talking about this in the White House? History will not judge this kindly." Nevertheless, Ashcroft did sign off on Yoo's "Golden Shield," a memo that was later withdrawn by Jack Goldsmith after he took over at OLC. Goldsmith has called that memo "slapdash" and deeply flawed.

But the "Golden Shield" did not end the Principals meetings. ABC reports that the CIA was still nervous and still returned again and again for approval from the Principals Committee for the OK for certain "enhanced interrogation" techniques even after Goldsmith had withdrawn the Bybee memo:

But the CIA had captured a new al Qaeda suspect in Asia. Sources said CIA officials that summer returned to the Principals Committee for approval to continue using certain "enhanced interrogation techniques."

Then-National Security Advisor Rice, sources said, was decisive. Despite growing policy concerns -- shared by Powell -- that the program was harming the image of the United States abroad, sources say she did not back down, telling the CIA: "This is your baby. Go do it."

House Judiciary Committee Chair John Conyers (D-MI) wants to former Justice Department lawyer John Yoo to discuss his now-infamous March 14, 2003 memo that broadly authorized the use of torture by military interrogators of unlawful combatants.

Conyers has gone ahead and scheduled a hearing for May 6th on the memo and invited Yoo in a letter today. But it's apparent from the letter that Yoo is not too enthusiastic about the prospect of testifying to Congress. He's apparently raised concerns to committee staff that the topics covered might "implicate executive confidentiality interests" and generally indicated that he'd rather not appear.

But given that Yoo has spoken with a variety of news outlets about the memo and other matters, Conyers points out, there's no reason why he couldn't talk to Congress. And while Conyers has invited Yoo to appear voluntarily, he makes it clear that he will issue a subpoena if Yoo declines.

Hopefully lawmakers will use the opportunity to ask Yoo why it was that he signed the memo himself, bypassing even the attorney general.

The full letter is below.

Read more »

More evidence that John Yoo was the most powerful deputy assistant attorney general in the Justice Department's history. The Washington Post reports this morning that when Yoo issued his now-infamous March 14, 2003 memo to the Pentagon, neither Attorney General John Ashcroft, nor his deputy Larry Thompson "were aware."

As Marty Lederman has pointed out, the fact that the memo was issued under Yoo's own name is further indication that this was a back door authorization of interrogation practices.

The Post also sheds light on Yoo's earlier October 23, 2001 legal memo, the one that declared that the Fourth Amendment had "no application to domestic military operations." The memo "focused on the rules governing any deployment of U.S. forces inside the country 'in the event of further large-scale terrorist activities' by al-Qaeda" according to "a Justice Department official." Just what that sort of operation that might have been discussed or how long that memo remained in effect are unclear. In fact, it's unclear whether it might still be relied upon:

Although the memo has not been formally withdrawn, the Justice Department yesterday repudiated the idea that there are no constitutional limits to military searches and seizures in a time of war, saying it depends on "the particular context and circumstances of the search," according to a statement.

All that is clear is that Department officials are insistent that that memo had nothing to do with the warrantless wiretapping program. But as the AP has shown, that appears not to be entirely true.

John Yoo, speaking to Esquire:

“I did not think as a matter of policy that it was a good idea for the military to use aggressive interrogations of the kind that would be permitted to the CIA,” he said, adding that he expressed those reservations “to officials higher up the chain of command.”...

“The memo released yesterday does not apply to Iraq. It applied to interrogations of al Qaeda detained at Guantanamo Bay. I don’t [necessarily] agree that the methods did migrate to Iraq, because I don’t know for a fact that they did. The analysis of the memo released yesterday was not to apply to Iraq, and we made clear in other settings that the Geneva Conventions fully applied to the war in Iraq. There was no intention or desire that the memo released yesterday apply to Iraq.”

Of course, Yoo was just a lawyer in the Justice Department's Office of Legal Counsel, so it is true that it was not his call what to do as a matter of policy. He was just the consigliere.

But nothing can erase the fact that it is, in fact, his legal analysis that's been dropping jaws for the past two days.

Months after Justice Department lawyer John Yoo carefully delineated for the Pentagon how U.S. personnel could torture detainees all they wanted, the abuses at Abu Ghraib occurred. Does this put a dent in the "few bad apples" theory?

The New York Times mulls it and comes back with: "Some legal experts and advocates said Wednesday that the document, written the month that the United States invaded Iraq, adds to evidence that the abuse of prisoners in military custody may have involved signals from higher officials and not just irresponsible actions by low-level personnel." So it's no smoking gun.

The memo was intended to deal with "'unlawful combatants,' a label that would not apply to the largely Iraqi population captured during the Iraq war." Still, the natural suspicion remains that Yoo's expansive parsing might have migrated over to Iraq. After all, Major General Geoffrey Miller, then the commanding officer at Guantanamo Bay, did travel to Iraq in August of 2003 to advise officials there on interrogating Iraqi detainees. Miller had been briefed on the Pentagon's guidelines for interrogation, which owed much to Yoo's green light.

Not so, says Yoo:

“The ‘culture of abuse’ theory has no reliable evidence to support it,” Mr. Yoo wrote. He noted that several military investigations had found that what he called “the appalling abuses” at Abu Ghraib were not authorized by any military policy.

“While each case of abuse is regrettable,” Mr. Yoo wrote, “it is not possible for a large organization charged with protecting the national security, under extraordinary pressure, to perform its mission error-free.”

Shit happens.

It won't surprise anyone that the least sympathetic portrayal in Phillipe Sands' Vanity Fair piece is of former Undersecretary of Defense Doug Feith.

Not only did Feith play a major hand in promoting the myth of Iraq's ties to Al Qaeda before the invasion of Iraq, but he also played a major role in developing the interrogation policy for Guantanamo Bay.

Feith boasted to Sands that back in 2002, he "was really a player" in ensuring that Gitmo detainees would not receive Geneva protections. But when Sands asked him "whether, in the end, he was at all concerned that the Geneva decision might have diminished America’s moral authority," Feith got nasty:

He was not. “The problem with moral authority,” he said, was “people who should know better, like yourself, siding with the assholes, to put it crudely.”

Shedding light on the human rights abuses of the Bush administration's first term seems to be the order of the day.

Reporting for Vanity Fair, Philippe Sands, a professor of law at University College London, details the direct involvement of administration figures in developing the interrogation techniques to be used at Guantanamo Bay.

There are plenty of highlights, including an admission (finally) from a Pentagon official that Jack Bauer provided inspiration. Diane Beaver, a lawyer who worked underneath Major General Michael Dunlavey, the first commander at Gitmo, told Sands in an interview about brainstorming meetings (which included representatives from the Defense Intelligence Agency and the C.I.A.) held at Gitmo in September of 2002 about possible interrogation techniques. The military's SERE (Survival, Evasion, Resistance, and Escape) program, meant to train U.S. soldiers to resist torture used by the bad guys, was one inspiration. But:

Ideas arose from other sources. The first year of Fox TV’s dramatic series 24 came to a conclusion in spring 2002, and the second year of the series began that fall. An inescapable message of the program is that torture works. “We saw it on cable,” Beaver recalled. “People had already seen the first series. It was hugely popular.” Jack Bauer had many friends at Guantánamo, Beaver added. “He gave people lots of ideas.”

Sands reports, relying on accounts from Beaver and Dunlavey, that a group of administration officials came down later that month to see for themselves:

On September 25, as the process of elaborating new interrogation techniques reached a critical point, a delegation of the administration’s most senior lawyers arrived at Guantánamo. The group included the president’s lawyer, Alberto Gonzales, who had by then received the Yoo-Bybee Memo; Vice President Cheney’s lawyer, David Addington, who had contributed to the writing of that memo; the C.I.A.’s John Rizzo, who had asked for a Justice Department sign-off on individual techniques, including waterboarding, and received the second (and still secret) Yoo-Bybee Memo; and Jim Haynes, Rumsfeld’s counsel. They were all well aware of [Mohammed al-Qahtani, allegedly a member of the 9/11 conspiracy and the so-called 20th hijacker who was already at Gitmo]. “They wanted to know what we were doing to get to this guy,” Dunlavey told me, “and Addington was interested in how we were managing it.” I asked what they had to say. “They brought ideas with them which had been given from sources in D.C.,” Dunlavey said. “They came down to observe and talk.” Throughout this whole period, Dunlavey went on, Rumsfeld was “directly and regularly involved.”

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Marty Lederman has argued that Yoo's March, 2003 memo is "in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004." Well, we decided we needed a brief timeline to size it all up. You be the judge. TPM Research Hound Peter Sheehy provided research for this post.

August 1, 2002
John Yoo authors and Jay Bybee, then the chief of the Justice Department's Office of Legal Counsel, signs a memo (now known as the Bybee memo or the Torture Memo) that narrowly defines what constitutes illegal torture.

October, 2002
Major General Geoffrey Miller assumes command of Guantánamo Bay and pushes his superiors hard for more flexibility in interrogations.

December 2, 2002
Secretary of Defense Rumsfeld gives formal approval for the use of “hooding,” “exploitation of phobias,” “stress positions,” “deprivation of light and auditory stimuli,” and other coercive tactics ordinarily forbidden by the Army Field Manual.

Early, 2003
In part to satisfy internal administration critics of the Pentagon's interrogation program at Guantanamo Bay, Secretary of Defense Donald Rumsfeld in 2003 convenes a "working group" of lawyers from all branches of the armed services to develop new interrogation guidelines for the Pentagon.

March 28, 2003
Jay Bybee resigns from his Office as the Assistant Attorney General for the Office of Legal Counsel, to become a judge on the U.S. Court of Appeals for the Ninth Circuit.

March 14, 2003
The Justice Department sends Yoo’s legal memo to Pentagon's general counsel. The memo forms the basis of the working group's report.

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As I noted earlier, as outrageous as John Yoo's memo itself is, the process by which it came to be implemented is remarkable in its own right.

As Jane Mayer reported in The New Yorker two years ago, Yoo's March, 2003 memo to Pentagon General Counsel William Haynes came to be implemented by a two-faced process.

In part to satisfy internal administration critics of the Pentagon's interrogation program at Guantanamo Bay, Secretary of Defense Donald Rumsfeld in 2003 convened a "working group" of lawyers from all branches of the armed services to develop new interrogation guidelines. That group included Alberto Mora, the former general counsel of the U.S. Navy, who outlined his efforts to prevent the use of torture in a 22-page memo (pdf) that was ultimately made public, and who was the focus of Mayer's piece.

But Yoo's memo, issued shortly after the working group began meeting, pretty much determined the direction of where the working group would end up. While Mora and other lawyers concerned about the use of torture were able to see a draft version of the working group's report, Rumsfeld ultimately signed a final version of the report without the knowledge of several lawyers who were ostensibly its authors. That report was then related to Major General Geoffrey Miller, who was then in command of Gitmo. Soon after, the Pentagon sent him to Iraq to advise officials there on interrogating Iraqi detainees.

At the same time, Haynes publicly assured Congress and human rights groups in a June 25, 2003 letter that "it is the policy of the United States to comply with all its legal obligations in its treatment of detainees." The Pentagon had not authorized the use of torture, or cruel, inhumane, or degrading treatment. Mora told Mayer that after he saw Haynes' letter, he'd "sent an appreciative note to Haynes, saying that he was glad to be on his team."

Mayer writes:

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More than five years after its composition, we finally see a copy of John Yoo's March 14, 2003 memo to William Haynes, then the Defense Department's general counsel. It was, as The New York Times and Washington Post report, a green light for military interrogators to use just about any technique the Pentagon deemed useful. Criminal statutes prohibiting torture stopped at the water's edge, because, Yoo wrote, "such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's grant of Commander in Chief power solely to the President."

As Thomas J. Romig, who was then the Army's judge advocate general, tells the Post, "it appears to argue there are no rules in a time of war." As Marty Lederman, a former lawyer at OLC writes, "it is, in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004."

Despite the fact that Congress has been asking for the declassification of this memo, it appears to have only been released now as a result of a Freedom of Information Act request by the American Civil Liberties Union.

The memo is 81 pages long (here's Part I and Part II). We've posted one of the more remarkable sections here.

In that section, Yoo explains how even if a particularly brutal interrogation might "arguably cross the line drawn" by the law, "certain justification defenses might be available." Those are "necessity" (the "choice of evils," the evils being torture and a terrorist attack) and "self-defense" ("If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions.") Just about the only actions that were impermissible and indefensible in Yoo's eyes, it seems, were those motivated strictly by malice or sadism.

The memo was rescinded just nine months later by Jack Goldsmith, when he came in to head the Justice Department's Office of Legal Counsel.

Yoo himself doesn't see what all the hubbub is about. From the Post:

Yoo... defended the memo in an e-mail yesterday, saying the Justice Department altered its opinions "for appearances' sake." He said his successors "ignored the Department's long tradition in defending the President's authority in wartime."

"Far from inventing some novel interpretation of the Constitution," Yoo wrote, "our legal advice to the President, in fact, was near boilerplate."

But as Marty explains, the legal reasoning of Yoo's memo is only half the scandal. The circumstances under which it was instituted constitute the other half. More on that in a bit.