John Ashcroft

Torture Memos Makes DOJ Sound Like Mob Attorney

Andrew Tilghman | July 25, 2008, 1:49PM

The more we see of the back-and-forth between the Department of Justice and the CIA regarding the torture program a few years ago, the more it becomes clear that everyone knew it was a little shady.

The American Civil Liberties Union yesterday released three previously undisclosed memos about the torture program from 2002 to 2004, which it obtained as part of its ongoing FOIA lawsuit with the DOJ seeking records on the treatment of prisoners in U.S. custody overseas.

One memo in particular appears to instruct the CIA in what agents should say if anyone raised the specter of criminal charges. For example: "To violate the statute, an individual must have the specific intent to inflict severe pain or suffering. ...absence of specific intent negates the charge of torture."

"It read like an attorney preparing a mob client for a confrontation with the police," said Jonathan Turley, a law professor at George Washington University. "Why on earth would you instruct interrogators on the meaning of 'specific intent' unless you wanted to coach them as to what to say when confronted?"

The very existence of this extensive, documented legal exchange between the DOJ and the CIA underscores the intelligence officials' concern about the legality of their own program, said Herman Schwartz, a former civil rights attorney and law professor at American University.

"The CIA people knew this was shaky stuff -- that's why they kept asking for memos from the Justice Department saying this was OK. They were very scared they would have to face up to this in some way later on," Schwartz said in a telephone interview.

An August 2002 memo from DOJ came about the same time the attorney general had laid out a definition of torture so narrow as to only involved things like "organ failure." Specifically, the CIA wanted to know, how does that apply in practice?

Then-Assistant Attorney General Jay Bybee wrote to the CIA: "You have asked for this office's views on whether certain proposed conduct would violate the prohibition against torture found ...[in] United States Code."

Virtually all of the "proposed conduct" was redacted with large black marks covering whole pages. In fact, more than 80 percent of the 23 pages released to the ACLU were blacked out, apparently concealing the names of agents involved in the program and the specific techniques in question.

The memo spells out a legal logic that rests not on the facts of what may occur during interrogation, but the "defendant's" state of mind (the defendant being anyone who may actually get charged with torture).

...If a defendant acts with good faith belief that his actions will not cause such suffering, he has not acted with specific intent. A defendant acts in good faith when he has an honest belief that his actions will not result in severe pain or suffering.

So, hypothetically, an interrogator gets up in front of a grand jury and tells them he had the "good faith" belief that a few hours of waterboarding was not going to cause "severe pain or suffering."

What if a jury doesn't buy it? The memo goes on to say: "Although an honest belief need not be reasonable, such a belief is easier to establish where there is reasonable basis for it."

About six months later, Tenet sent a memo to the Department of Justice's Office of Legal Counsel informing them that the interrogators were keeping copious records.

"In each interrogation session in which enhanced Technique is employed, a contemporaneous record shall be created setting forth the nature and duration of each technique employed, the identities of those present."

Turley called that a "C-Y-A memo."

It wasn't long after that that then-Attorney General John Ashcroft rescinded the key 2002 memos that provided hte legal foundation for the torture programs.

Maybe the most important question raised by these new memos involves the records of torture sessions that Tenet referred to.

"We know there are records of what happened. Then the next question is: Will they come to light and to what extent?" Schwartz said. "I have to wonder what would be the significance of a Democratic president? If he puts his person in as head of the CIA and he puts his person in at head of DOJ? Will they as most executives are likely to do, continue to cover up what happened because of bureaucratic imperative? Or the alternative -- to provide this to Congress?"

Torture

DOJ: Torture Is Legal With "Good Faith"

Andrew Tilghman | July 24, 2008, 2:06PM

From the AP:

The Justice Department in 2002 told the CIA that its interrogators would be safe from prosecution for violations of anti-torture laws if they believed "in good faith" that harsh techniques used to break the will of prisoners, including waterboarding, would not cause "prolonged mental harm."

The newly released but heavily censored memo approved the CIA's harsh interrogation techniques method by method, but warned that if the circumstances changed, interrogators could be running afoul of anti-torture laws.

The Aug. 1, 2002 memo signed by then-Assistant Attorney General Jay Bybee was issued the same day he wrote a memo for then-White House Counsel Alberto Gonzales defining torture as only those "extreme acts" that cause pain similar in intensity to that caused by death or organ failure. That memo was later rescinded by the Justice Department.

Michael Mukasey

Attorney General's Call to Legislate Detainee Policy Rankles Senators

Kate Klonick | July 21, 2008, 3:48PM

Attorney General Michael Mukasey angered Democratic senators when he made an unexpected call for Congress to step in and legislate detainees rights, rather than waiting for federal court proceedings.

Speaking at the American Enterprise Institute this morning, Mukasey spoke to the "unanswered questions" raised by the Supreme Court decision of Boumediene v. Bush, which stated that detainees are protected by the right to habeas corpus. Mukasey called the Court's decision a "disappointment," and said the court stopped "well short of detailing how the habeas corpus proceedings must be conducted." Currently, over 200 cases are waiting to be heard in federal court related to the Supreme Court's ruling, a problem Mukasey thinks could be circumvented by Congressional action:

Congress and the executive branch are affirmatively charged by our Constitution with protecting national security, are expert in such matters, and are in the best position to weigh the difficult policy choices that are posed by these issues.

Judges play an important role in deciding whether a chosen policy is consistent with our laws and the Constitution. But it is our elected leaders who have the responsibility for making policy choices in the first instance.

Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, issued a statement today, slamming Mukasey for failing to consult or inform the Committee of his thoughts before his speech:

"The Committee has held a wide range of hearings on issues of detainee rights and procedures. Attorney General Mukasey's call today for Congress to create new rules for these habeas proceedings is the first I have heard from the Administration on this issue," Leahy said. "The Administration made this mess by seeking to avoid judicial review at all costs, causing years of delay and profound uncertainty."

Sen. Russ Feingold (D-WI) echoed Leahy's comments. "Our federal courts are capable of handling these cases," he said. "By repeatedly mishandling these cases, the administration has delayed justice from being served."

[Late update]: Senate Majority Leader Harry Reid (D-NV) just chimed in with a statement from the Senate floor.

"As a result of its repeated efforts to circumvent the requirements of the Geneva Conventions and the Constitution, the Bush administration has yet to bring to justice the perpetrators of the terrorist attacks of September 11," he said. "The courts are well equipped to handle this situation, and there is no danger that any detainee will be released in the meantime."

John Ashcroft

Ashcroft Cites Executive Privilege, Discusses Waterboarding with House Judiciary

Kate Klonick | July 18, 2008, 12:45PM

As we've reported , former Attorney General John Ashcroft was on the Hill yesterday, testifying before the House Judiciary Committee.

Ashcroft's testimony called into question the timeline of the CIA interrogations and suggested that perhaps torture began before it was authorized by the DOJ. But it also shed some light on the DOJ's thought process about the authorization of the interrogations to begin with.

It was during Ashcroft's years as attorney general that the infamous "torture" memos were written. The memos approved the use of waterboarding and other forms of interrogation as long as they did not "cause pain similar in intensity to that caused by death or organ failure."

While Ashcroft approved the memos initially, he later withdrew them out of concern that they overstepped the bounds of executive authority, a decision that he described this way:

It wasn't a hard decision for me to - when they came to me, and I came to the conclusion that these were genuine concerns - get about the business of correcting it.

Just one week ago the committee was host to the current Attorney General Michael Mukasey.

And just like Mukasey, Ashcroft was ever the artful dodger, citing a lack of memory, executive privilege or the classified nature of the information as reasons why he could not answer lawmakers' questions.

When asked asked repeatedly about waterboarding, Ashcroft described it as "very valuable," "not torture," and claimed that it "has happened three times."

"I have been aware of waterboarding," he stated in answer to questions on how he learned that the interrogation technique was being used. "I'm not sure how I am aware."

The former attorney general conceded his lack of recall as to the events in question during his opening remarks.

"It's been difficult . . . to distinguish between what I in fact recall as a matter of my own experience, and what I remember from the accounts of others," he said.

And indeed throughout the hearing, Ashcroft informed the committee that he couldn't remember. . . and that even if he could remember, he wouldn't tell them because of executive privilege.

One particularly rapid-fire stonewalling occurred during Rep. Linda Sanchez's (D-CA) five minutes of interrogation. It really can't be summed into words, so we have the clip here. Enjoy.

John Ashcroft

Ashcroft Testimony Brings CIA Interrogation Timeline Into Question

Kate Klonick | July 18, 2008, 10:47AM

Did the CIA start using torture before the DOJ authorized it in the infamous torture memos?

That's what it sounded like according to former Attorney General John Ashcroft, who was on the Hill yesterday testifying on interrogation techniques before the House Judiciary Committee.

It was during Ashcroft's years as attorney general that the infamous "torture" memos were written. The memos approved the use of waterboarding and other forms of interrogation as long as they did not "cause pain similar in intensity to that caused by death or organ failure." The first memo-- often called the Bybee memo -- was dated August 1, 2002 and was written by former Deputy Assistant Attorney General John Yoo, who also testified before the Judiciary Committee in an earlier hearing in the series on torture.

But at least four months prior to the publication of that memo, the CIA captured al-Qaida operative Abu Zubaydah on March 28, 2002. Zubaydah's detention and interrogation has garnered much publicity, as it was thought to be especially brutal and involved waterboarding.

The CIA has long denied employing harsh interrogation techniques before it received authorization via the legal memos provided by the DOJ, but Ashcroft's testimony yesterday called that timeline into question, and raised the possibility that "the CIA started torturing at least one detainee before any of the memos were even written."

From Salon's War Room:

But during questioning, Rep. Jerrold Nadler, D-N.Y., pointed out that the abuse of Zubaydah had reportedly begun weeks, if not months, earlier. "Did you offer legal approval of interrogation methods used at that time ... prior to August 2002?"

"I have no recollection of doing that at all," Ashcroft responded. He added that he did not remember anyone else at the Justice Department doing so either. He said later in the hearing that Zubaydah's interrogation "was done without the opinion that was issued on the first of August."

Video of the exchange below:

House Judiciary

Ashcroft: Sometimes I Confuse What People Tell Me With Reality

Kate Klonick | July 17, 2008, 11:32AM

If this doesn't set the tone for former Attorney General John Ashcroft's testimony before the House Judiciary Committee on interrogation methods at Guantanamo, I don't know what does.

In his opening statement, Ashcroft admitted that he had "limited recollection" of the events pertinent to the committee's inquiry. Specifically, "it's been difficult . . . to distinguish between what I in fact recall as a matter of my own experience, and what I remember from the accounts of others."

Before these hearings commenced, I had but a limited recollection of many of the events pertinent to your inquiry. In attempting to prepare for this hearing, I have reviewed testimony from prior hearings, I've read portions of publications recounting some of the timely events, and I must admit, it's been difficult for me sometimes to distinguish between what I in fact recall as a matter of my own experience, and what I remember from the accounts of others. As a result, what I hope, what I say will be of value to the committee. Reliance on my statements and observations aught to be tempered by these awarenesses.

For smart guys, there sure seems to be an awful lot of lack of recall in the Bush administration.

Douglas Feith

Feith Denies, Denies, Denies

Kate Klonick | July 15, 2008, 4:06PM

Doug Feith was on the Hill today to testify about the interrogation techniques in Guantanamo. Joining him before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties was his nemesis, Philippe Sands, who goes back a ways with Feith.

As Spencer Ackerman blogs at the Washington Independent, Feith started off the hearing denying the statements made in Sand's book, and then got right down to alleging that the Guantanamo interrogators were rogue agents:

After going back and forth with Feith--in which Feith conceded there were indeed abuses in Defense Dept. detention and interrogation operations-- Rep. Bobby Scott (D.-Va) asked why the abusers might think they could torture detainees. "I don't believe they necessarily did think they did" had authority to torture, Feith said. "Some people do bad things."

[Late Update]: According to Ackerman, Feith also spent a fair amount of time, detailing the "great care" given to the interpretation of the 2002 memo written by Jim Haynes:

"I imagine one could apply these things in an inhumane fashion," Feith replied. "'Removal of clothing' is different from 'naked.' ... It could be done in a humane way. . . They could be used in a way that could violate the [Geneva] Convention," he explained, "they could be used in a way consistent with the Convention."

Torture

Mayer: CIA Forced Detainee To Stand For Hours Without Prosthesis

Kate Klonick | July 11, 2008, 3:10PM

It took a New York Times article; a dozen phone calls and an over-eager intern running to a publishing house in 92 degree heat-- but we got it: Jane Mayer's new book, "The Dark Side," which I've been poring through for the better part of the day.

So why the rush? The book reveals new details on the CIA's torture of high-level Qaeda captives with information from a secret report by the International Committee of the Red Cross. According to Mayer, the 2007 report which was shared with the President and Secretary of State described the CIA's actions, "categorically, as 'torture'" and warned that the abuse placed the "highest officials in the U.S. government in jeopardy of being prosecuted."

But besides that enormous and, (possibly) devastating claim, Mayer's "sources familiar with the ICRC report" also give horrifying details about the CIA's techniques.

One detainee claimed in the report that he was forced to stand on one leg for hours without his prosthesis and his arms chained to the ceiling.

The detainee, Tawfiq Bin Attash, was linked to the attack on the USS Cole but is being charged as part of the Sept. 11 attacks. Attash, also known as Khallad, had lost his leg below the knee following an injury in the Afghan-Soviet War.

Other detainees described similar stress positions to the ICRC, Mayer reports:

They described not just standing, but being kept up on their tiptoes with their arms extended out and up over their heads, attached by shackles on their wrists and ankles, for what they described as eight hours at a stretch. During the entire period, they said they were kept stark naked and often cold.

The International Committee of the Red Cross isn't so happy that news of this report is out. As they told the New York Times, "its work is more effective when confidential."

Torture

New Book Reveals Existence of Secret Red Cross Torture Report

Kate Klonick | July 11, 2008, 8:45AM

In a secret report last year, the International Committee of the Red Cross found that the CIA's interrogation techniques were "categorically" torture, a new book reveals.

From the New York Times:

The book, "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals," by Jane Mayer, who writes about counterterrorism for The New Yorker, offers new details of the agency's secret detention program, as well as the bitter debates in the administration over interrogation methods and other tactics in the campaign against Al Qaeda.

. . .Citing unnamed "sources familiar with the report," Ms. Mayer wrote that the Red Cross document "warned that the abuse constituted war crimes, placing the highest officials in the U.S. government in jeopardy of being prosecuted."

Late Update: The book also reveals new specifics on Abu Zubaydah's waterboarding. Contrary to administration reports that the technique was used "on only three occasions," Abu Zubaydah told the Red Cross that he was waterboarded "at least 10 times in a single week and as many as three times a day."

And there's new info on Khalid Shaikh Mohammed as well. "KSM" says he was "kept naked for more than a month" and "kept alternately in suffocating heat and in a painfully cold room."

Must Read

Today's Must Read

Kate Klonick | July 7, 2008, 9:58AM

For those hoping investigations by the DOJ's Office of Professional Responsibility might shine some light on the scurrilous activities at the Bush Justice Department, today's Los Angeles Times piece doesn't offer much solace.

The OPR, a watchdog of the Justice Department's lawyers and activities, has ceased to issue regular public reports of its investigations, some of which have resulted in the exoneration of attorneys accused of professional misconduct.

From the U.S. Attorney firing scandal; to selective prosecution of Democratic political figures; to unlawful detainment of terrorist suspects, the OPR is facing increasingly weighty caseloads, and meeting their investigations with decreasing transparency.

As the Times reports, the changes in disclosure have come with a new administration:

After President Bush took office in 2001, the Justice Department reversed a decade-old policy of publicly disclosing detailed summaries of OPR investigations of department lawyers found to have committed professional misconduct. Janet Reno, attorney general since 1993, had believed that publicizing the information would bolster confidence in the department; and during her tenure she had authorized the release of two dozen public summaries of misconduct cases -- including one against then-FBI Director William S. Sessions.

The OPR also has been far behind in producing required annual public reports summarizing its activities. Last month, it released its report covering fiscal year 2005. That means many investigations undertaken during the tenure of former Atty. Gen. Alberto R. Gonzales remain under wraps.

Two weeks ago the OPR issued a report, along with the Office of the Inspector General, that found that the two attorneys in the Justice Department broke federal law when they hired new lawyers for the DOJ's Honors Program based on "political and ideological" factors.

But besides the report with the Inspector General, the OPR has failed to disclose the results of its investigations of misconduct relating to the war on terrorism.

According the documents obtained by the Times, the OPR has exonerated lawyers involved in two high-profile terrorism investigations:

According to a redacted copy of a confidential OPR report obtained by The Times, the office found that department lawyers had not engaged in misconduct in connection with the controversial practice of using special warrants to round up and incarcerate men after Sept. 11 who were considered witnesses to crimes. Human rights groups said the technique was a way to illegally detain, sometimes for months, dozens of Muslims whom the government suspected but could not prove were engaged in criminal activity.

The report, issued more than a year ago, concluded: "Department of Justice attorneys involved did not misuse the material witness statute, and thus did not commit professional misconduct or exercise poor judgment."

There's nothing sinister going on in the lack of reports, insists Associate Deputy Attorney General David Margolis. He says that the decision was merely made to conserve resources and protect the privacy of accused attorneys:

"My goal is to get fair and speedy dispositions of allegations against our attorneys," he said, "and, to the extent possible, let the public know what we did and why we did it without unnecessarily or gratuitously . . . publicly humiliating our line attorneys as individuals."