The case against the lawyers in the Justice Department

“For more than two years, White House officials had been creating a counterterrorism infrastructure that stretched the bounds of American law, and they had relied on a junior attorney in the Justice Department’s Office of Legal Counsel, John C. Yoo, to provide them with the legal backing needed for their actions.” (James Risen and Michael Schmidt. 2004 Showdown Shaped Reputation of Pick for F.B.IThe New York Times, June 21, 2013)

CIA and White House officials were extremely anxious to ensure that they had a legal defense shield –i.e., immunity from prosecution — for the use of torture in the interrogation of suspected terrorists at CIA’s off-shore “black sites” – beginning in April  2002 – and torture techniques being tested and applied on detainees at Guantanamo Base.

Department of Justice (DoJ) lawyers provided that legal shield. Beginning with John Yoo, who authored the infamous “Torture Memos” that provided legal legitimacy for the use of  13 “enhanced interrogation techniques,” including waterboarding; and Jay Bybee, Assistant Attorney General who  headed the Office of Legal Counsel (OLC), signed the notorious “Torture Memos” (August 1, 2002). Bybee resigned from the Justice Department on March 28, 2003 after being confirmed as a federal judge. Yoo resigned in May 2003, and returned to Berkeley.

The brutal techniques of torture were documented in the secret CIA Inspector General Report issued in 2004, but suppressed from the public. A much redacted version of this report was released in 2008 and another in 2009. The IG report determined that the  legal opinion  in the Yoo-Bybee 2002 memoranda “was based in substantial part, on the analysis of the OTS (Office of Technical Services) of the CIA. OTS was the leading division within the CIA that masterminded and managed CIA’s infamous MK-ULTRA and mind control experiments. [Read Part 8 of the Chronology]

The Justice Department documents that were crafted to legitimize torture and the objections raised by those within the DoJ (in emails and testimony) are contained in the report of the DoJ Office of Professional Responsibility (OPR), “Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the CIA’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists,” (July 29, 2009).

The Office of Professional Responsibility (OPR) found the two attorneys, John C. Yoo and Jay S. Bybee, guilty of professional misconduct and recommended disciplinary referrals to state bar associations for two of the former department lawyers, but their supporters claimed the men acted in good faith, and the final report withdrew the recommendation for disciplinary referrals.

David Cole, a constitutional expert at the Georgetown University Law Center noted that the DoJ documents clearly show that:

“Justice Department lawyers were inextricably involved in justifying every aspect of the CIA program. They wrote memo after memo over a five-year period, from 2002 to 2007, all maintaining that any interrogation methods the CIA was planning to use were legal…

“it is striking that on every question, no matter how much the law had to be stretched, the Bush administration lawyers reached the same result—the CIA could do whatever it had proposed to do. And long after federal officials acknowledged that the threat of terror had substantially subsided, the OLC continued to distort the law so as to facilitate brutality. (David Cole. The Torture Memos: The Case Against the Lawyers, New York Review of Books, 2009)

In October 2003, Jack Goldsmith, an attorney at the State Department, replaced Jay Bybee as Assistant Attorney General and determined that the Yoo memo was seriously “flawed” and could not be supported under the law; he decided that it must be withdrawn. He worked on its replacement producing at least 14 drafts outlining 10 critical areas in Yoo’s memorandum:

“contains numerous overbroad and unnecessary assertions of the Commander in Chief power vis-a-vis statutes, treaties and constitutional restraints…The memorandum incorrectly concludes, contrary to an earlier opinion of this Office, that the torture statute does not apply to the military during wartime. This conclusion contradicted an earlier opinion of this Office…

Yoo’s effort to tie the severity of physical pain to particular physical or medical conditions is misleading and unhelpful, because it is possible that some forms of maltreatment may inflict severe physical pain or suffering on a victim without also threatening to cause death, organ failure or serious impairment of bodily function.” (DoJ Office Professional Responsibility Report, Investigation of Office of Legal Counsel’s Memoranda… 2009, p. 117-120)

Public outrage in the wake of the shocking graphic Abu Ghraib revelations (April 2004) was intensified on June 13, 2004, when the secret Bybee memo was leaked and posted on The Washington Post website. The memo is one among numerous memos that attorneys in the the Office of Legal Counsel (OLC) crafted over a period of five years (2002 to 2007), confirming that the use of torture was not limited to a few “bad apples” but rather that it was a clandestine program supported and implemented by the Bush administration.

Lawyers in the OLC often work on secret matters about which the public has no knowledge. They are charged with providing authoritative legal advice to the President and all Executive Branch agencies. supposed to serve as the “constitutional conscience” of the Justice Department charged with ensuring that executive branch policies and programs adhere to legal requirements. “OLC must always give candid, independent, and principled advice—€”even when that advice is inconsistent with the aims of policymakers.” (DoJ Best Practices for OLC Legal Advice & Written Opinions)

While it is true that attorneys in the OLC were under immense pressure from the White House to reaffirm the legality of torture techniques that were in use by the CIA. these lawyers were the Administration’s only line of defense in claiming that CIA’s intensive brutal interrogation techniques were legal, Inasmuch as the brutality was indefensible in an open court of law, the lawyers could have, and should have put the breaks on Administration’s ill-advised descent into torture, the domain of tyrannies.

The CIA Inspector General identified critical issues, noting far-reaching consequences that the lawyers glossed over.

“Although the current detention and interrogation Program has been subject to DOJ legal review and Administration political approval, it diverges sharply from previous Agency policy and practice, rules that govern interrogation by U.S. military and law enforcement officers, statements of U.S. policy by the Department of State, and public statements by very senior U.S. officials, including the President.”

“Unauthorized, improvised, inhumane, and undocumented detention and interrogation techniques were used…in the interrogation of an individual who died at Asadabad Base while under interrogation by an Agency contractor in June 2003”

The White House asked Goldsmith to reaffirm the legal opinion contained in the Bybee memo (which was essentially the same as in the Yoo memo). Goldsmith informed Attorney General John Ashcroft that the Bybee memo should be withdrawn as well. He then notified the White House Counsel’s Office that he was planning to withdraw the Bybee memo. This caused “enormous consternation in the Executive Branch.” (DoJ OPR Report, p. 121) Goldsmith put a temporary hold on waterboarding, but left standing another, still secret Bybee memo authorizing CIA’s “interrogation” program.

What followed confirms an observation that Goldsmith made later in his book, The Terror Presidency: Law and Judgment Inside the Bush Administration: “The danger… is that OLC lives inside the very political executive branch, is subject to few real rules to guide its actions, and has little or no oversight or public accountability.” (2009)

The Office of Professional Responsibility report states:

“CIA Acting General Counsel John Rizzo told us that CIA personnel were concerned that they might face criminal liability for employing some of the EITs [torture techniques]…the CIA wanted a Department of Justice criminal declination in advance of the interrogation because of concerns about the application of criminal laws, in particular the torture statute…Rizzo told us that, although he thought use of the EITs would not violate the torture statute, he recognized that some of the techniques were aggressive, and could be ‘close to the line at a minimum.'”
(p. 37)

After the Bybee memo was publicly leaked, attorneys in the OLC were under immense pressure from the White House to provide a legal shield for CIA’s interrogation program. OLC issued an interim assurance allowing the CIA to use all 13 “enhanced interrogation techniques” except waterboarding.

Leading OLC attorneys resigned  in rapid succession; some under pressure. Within eight months of his appointment, Jack Goldsmith submitted his resignation effective July 2004.   In August 2004, Daniel Levin became Acting Assistant Attorney General (AAG) and declared “torture is abhorrent.” However, Levin issued an interim letter (Aug. 6, 2004) reauthorizing waterboarding “as long as rules were followed,” and he drafted much of the memo issued by his successor in 2005. (Shane & Johnston. US Lawyers Agree on Legality of Brutal Tactic, The New York Times, 2009)

In Feb. 2005, Steven Bradbury became Acting Attorney General (AAG) and cautioned against reliance on seven Yoo-Bybee memoranda in which the treatment of several legal issues was “either incorrect or highly questionable.” He withdrew a Yoo memo which “relied on a doubtful interpretation of the Foreign intelligence Surveillance Act” and he confirmed the withdrawal of two [Bybee-Yoo] opinions that dealt with the President’s authority to suspend treaties.” (DoJ OPR, p. 28)

Bradbury issued three memos: a May 10, 2005 memo to replace the classified Bybee memo which once again gave the CIA a legal green light for its 13 coercive interrogation techniques, referred to the judgement of CIA’s Office of Medical Services which had deemed that shackling, sleep deprivation and  waterboarding “did not cause severe physical suffering…would not cause severe mental pain or suffering within the meaning of the torture statute.” (DoJ Professional Responsibility, p. 135)

Another Bradbury memo focused on the use of Combined Techniques analyzing whether the combined effects of authorized EITs would cause increased physical or mental pain and suffering. The memo classified torture into three increasingly aggressive categories. The concluding paragraph states:

“the experience from past interrogations, the judgment of medical and psychological personnel, and the interrogation team’s diligent monitoring of the effects” of EITs…[conclude] that the authorized combined use of these [13] specific techniques by adequately trained interrogators would not violate the torture statute.” (reproduced in DoJ Professional Responsibility, p. 140)

Patrick Philbin replaced John Yoo in June 2003, and he concurred with the withdrawal of Yoo-Bybee legal torture opinion memos, and advised James Comey, Deputy Attorney General (now Director of the FBI), not to agree to the flawed analysis in Bradley’s Memo rendering combined EITs “legal.” Comey argued that the U.S. would regret using harsh methods that “some of this stuff was simply awful.”

He told Roberto Gonzalez, the President’s Legal Counsel that he strongly objected to Bradbury’s second opinion allowing multiple coercive techniques to be used in a single interrogation session and indicated that “after reading a revised draft of the second opinion, my concerns were not allayed, only heightened.” He offered to fix the memorandum, but needed more time, but Gonzalez “explained that he was under great pressure from the Vice President to complete both memos…the White House would not wait.” (Shane & Johnston. Legality of Brutal Tactic, The New York Times, 2009)

A third Bradbury memo focused on Article 16 of the United Nations Convention Against Torture (CAT) Attorney John Bellinger at the State Department who reviewed the Article 16 memo, told investigators from the Office of Professional Responsibility that:

“the memo’s conclusion stating that the use of the 13 coercive techniques — including forced nudity, sleep deprivation and waterboarding — did not violate CAT Article 16, was so contrary to the commonly held understanding of the treaty [ ] he concluded that the memorandum had been “written backwards” to accommodate a desired result.” (p. 150-151)

James Comey and Daniel Levin advised against using waterboarding and against using a combination of the 13 methods in one session, which they deemed would constitute torture. However, they concurred that these techniques were not prohibited by the federal anti-torture statute. According to Philbin, David Addington, legal counsel to Dick Cheney, told him in a private conversation that because of his efforts to block the memos, he would prevent him [Philbin] from being promoted to another job in government; Addington suggested that he resign immediately. (DoJ OPR, p. 143)

As David Cole has written,

“If OLC lawyers had exercised independent judgment and said no to the CIA’s practices, as they should have, that might well have been the end of the Bush administration’s experiment with torture…had the OLC stood firm, it is difficult to imagine even the Bush-Cheney White House going forward with a program that the OLC said was illegal.” (The Torture Memos: The Case Against the Lawyers, New York Review of Books, 2009)

[James Risen of The New York Times reported about the second, co-incidental legal concern for the White House, namely; securing a legal defense for warrantless surveillance of American citizens and mass data mining. He describes the dramatic refusal of Department of Justice lawyers to reauthorize John Yoo’s legal memo in 2004. The memo gave the legal green light for the warrantless surveillance of American citizens by the National Security Agency (NSA). In March 2004, when Attorney General John Ashcroft was hospitalized for emergency surgery at George Washington Hospital, James Comey assumed the job of Acting AG. Jack Goldsmith indicated to Alberto Gonzales, then White House counsel to the President that he would not recommend reauthorization of the Yoo memo unless portions of the NSA surveillance program were changed or shut down.

Goldsmith was backed by Comey and two other lawyers in the Justice Department who handled national security issues — Daniels Levin and Patrick Philbin. In desperation, President Bush bypassed the DoJ and personally reauthorized NSA surveillance. This led several Justice Department and FBI officials to consider resigning, including James Comey and FBI director Robert Muller. (Risner and Schmidt. 2004 Showdown, The New York Times, 2013]

In the summer of 2005, Senator John McCain, a victim of torture during the Vietnam War, backed a new bill in Congress to clarify the rules for interrogating terrorist detainees. The Detainee Treatment Act of 2005, requires adherence to the U.S. Army Field Manual and prohibits “cruel, inhuman or degrading treatment or punishment.” Vice President Dick Cheney sought to persuade the Senate to amend McCain’s bill so that it will not apply to secret counter-terrorism operations outside the United States, or terrorists who are not American citizens, and non-military personnel such as CIA agents.

In 2008, a bill to curtail the CIA’s use of harsh interrogation tactics was opposed by John McCain who was trying to ingratiate himself with Republicans as he sought the nomination of the presidency. The fill passed the Senate by a vote of 51 to 45. (Michael Cooper. McCain Draws criticism on Torture Bill, The New York Times, Feb. 17, 2008.