It’s Not Just that Levin Was Ousted–It’s Bradbury’s Trial Run on Torture

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ABC reports something that had been somewhat clear for some time. Daniel Levin was ousted from the Office of Legal Counsel after he wrote a memo that limited the use of torture.

Former Attorney General Alberto Gonzales, now under investigation for allegedly politicizing the Justice Department, ousted a top lawyer for failing to adopt the administration’s position on torture and then promised him a position as a U.S. attorney to placate him, highly placed sources tell ABC News.

Gonzales, who was just taking over as attorney general, asked Justice Department lawyer Daniel Levin to leave in early 2005, shortly after Levin wrote a legal opinion that declared "torture is abhorrent" and limited the administration’s use of harsh interrogation techniques.

At the time, Levin was in the middle of drafting a second, critical memo that analyzed the legality of specific interrogation techniques, like waterboarding.

Gonzales, however, was concerned about how it would be perceived if Levin were ousted immediately after issuing the opinion — and just before he finished another — so he offered Levin a less significant job outside the Department of Justice at the National Security Council, sources tell ABC News.

[snip]

Levin took the NSC job in March 2005. The U.S. attorney position never materialized, and sources close to Levin say he never believed Gonzales was serious.

As ABC points out, Kyle Sampson floated Levin’s name to replace Kevin Ryan in San Francisco.

But what ABC only hints at is what happened next: the trial run of Stephen Bradbury for the position of OLC head. Within months after Levin was ousted, we know, Bradbury wrote three new memos on torture, endorsing the combined use of harsh techniques.

When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

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The Removal of Clothing Does Not Lead to Nudity

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nudity.JPGThat’s a claim that Jim "Chevron" Haynes made yesterday in the Senate Armed Services Committee hearing on torture. In a pathetic attempt to claim that his own 2-page (with zero footnotes) recommendation and Rummy’s subsequent authorization of a number of techniques–including the use of fear and the removal of clothing–did not lead to the horrors of Abu Ghraib, Haynes actually claimed that the removal of clothing was in some way qualitatively different than nudity.

Haynes: Some conflation. Two of items for Qahtani included clothing and use of phobia. What was approved by SecDef. Widely held understanding of what was in those two categories. Use of dogs not intended to be dogs in interrogation room with detainee. Muzzled dogs in perimeter. Removal of clothing not nudity. You then jumped to dogs in room and naked people.

As Claire McCaskill pointed out to Diane Beaver and Jane Dalton, if the written documentation allows the use of phobias and removal of clothing, and that written documentation doesn’t rule out the removal of all clothing, you’re going to have nudity.

McCaskill Reading memo. You understand words matter. Removal of clothing. It says Using detainee phobias such as fear of dogs. I’m trying to figure out as a lawyer, how that does not envision naked people having dogs sicced on them. How does that not occur?

Beaver When you develop a plan, if someone had said, lets sic the dogs on them. That did not happen.

McCaskill Dogs were used with naked people.

Beaver Not at Gitmo

McCaskill Within our military. It happened.

Beaver I can’t comment..

McCaskill Ms Dalton

Dalton: Those approved for Gitmo and did not involve nudity.

McCaskill Removal of clothing. When you were discussing safeguards. Did any one talk putting in the word "all"? If I saw removal of clothing and I was trying to get info, how would anyone know?

Dalton General Miller said it did not involve nudity.

McCaskill there’s nothing here that would say removal of clothing. It’s not in there.

All three of these people are pretending that "everyone" involved knew there were a certain set of conditions that limited the use of phobias and removal of clothing that would somehow prevent piling detainees into heaps of naked human flesh–conditions that, unfortunately, Haynes’ two page memo failed to communicate. Read more →

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Senate Armed Services Torture Hearing, Four (Haynes)

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Haynes: How our country deals with this unprecedented threat. This is as it should be. The end of this can only come with history’s judgment of how our Administration served in protecting America. We know that America’s enemies are relentless. I look forward to watching our nation’s leaders to advancing our nation’s security and freedom.

[Alright, Levin, just like you did to Ickes.]

Levin: In July 2002, Shiffrin, contacted JPRA asked about SERE techniques. Did you ask him to obtain info on SERE.

Haynes: Six years ago. Memory not perfect. What I remember is a govt wide concern about poss of another terrorist attack. A widespread belief that the people captured in war on terror. [filibuster filibuster 9/11 9/11 9/11] As Chief legal officer I was interested and concerned. I inquired generally about where sources of expertise might be. Shiffrin would have been the person I asked for that kind of info.

Levin: Specifically about SERE.

Haynes Late summer, did get info (refreshed memory form doct).

Levin: Don’t remember about SERE.

Haynes: Not specifically.

Levin: Addington, Gonzales, Yoo, Philbin, and Rizzo. Did this request to Shiffrin come from that group?

Haynes: Six years ago. a long time. I had ten meetings a day. I met with many groups. I met with many lawyers. To key into one particular meeting.

[Does this remind anyone of Scooter Libby’s defense?]

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Senate Armed Services Torture Hearing, Three

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Graham: I understand from Schmitt-Furlow report that a dog was used in interrogation.

Beaver: I was not aware of it.

Graham when you said this didn’t happen at Gitmo, you’re not right.

Beaver: What was approved did not happen.

Graham Who did this?

Beaver: I don’t know.

Graham it was part of interrogation plan. Also strip-searched in front of female personnel. Based on this report we know in at least one interrogation dogs were used a person was stripped.

Beaver I haven’t read it, but I take your word for it.

Graham Mora, you spoke up, you continued to speak up, other lawyers continued to speak up, some of your criticism was listened to, they were ratcheted down.

Mora: I’m not sure

Graham They reevaluated the techniques, and a new group came up, Dalton. You were never involved in any final approval of new techniques.

Mora: that’s correct. To my knowledge, I thought draft was never finalized, not part of final approval.

Graham Dalton, Do you ever remember Miller going to Iraq?

Beaver: asked me to travel with him.

Graham: Sanchez said we need better intell. Was that the nature of the visit?

Beaver: A number of problems. Read more →

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Senate Armed Services Torture Hearing, Two

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Here are the documents released by the committee.

Are here are some links to Spencer Ackerman’s work on this: here, here, here, and here.

McCaskill: We disrespect men and women who serve if we don’t have this hearing. Did you review Beaver opinion?

Shiffrin:No

McCaskill: If you came across phrase, "immnuity in advance," would it cause you pause?

Shiffrin: yes.

McCaskill: Any lawyer would ask what planet are we on? That would be a crime!

McCaskill: In fact, as I just said, if someone visits with someone about committing a crime and I’ll give you immunity, wouldn’t they be guilty of a crime.

Shiffrin: they could be, Senator.

McCaskill: This legal memorandum, basis for SOD to sick dogs on them, contained a legal theory called immunity in advance, and no one, your boss got this, he is a trained prosecutor. Has he had experience as a prosecutor, experience in a court room. It is mindboggling to me that no one would hear the raging offense to rule of law.

McCaskill: what are the names of people who gave you impression we needed more aggressive techniques. WHo told you.

Shiffrin: Not what I said. Discussoin of progress, lack of progress, obtaining actionable intelligence out of detainees. Chaired by Haynes, 5-6 other lawyers.

McCaskill: Who was in the room?

Shiffrin: frustration, didn’t say we needed to change techniques. Whit Cobb, DGCIA Charles Allen, Marine worked in Counsel office, Bill Lietsow, there was a lawyer now my successor, Eleana Davidson, responsible for detainee matters. Those were the lawyers would have been present.

McCaskill: ever present after Haynes recommended approval of these techniques?

Shiffrin: Met with Haynes every day. I forget the date.

McCaskill: I can give the date. November 27, 2002, Approved December 2, 2002.

Shiffrin: Vague recollection that memorandum approved.

McCaskill: Aware memorandum existed. I think you’re a good lawyer care about your country. We’re trying to figure out who decided. Did this come from David Addington and Cheney, Gonzales’ shop? Chertoff. There are people still in responsibility in our govt. No one is willing to say where this came from. This move towards imploding the traditions of this country.

Shiffrin: The GC office often operated in compartmentalized fashion. Not unusual to get request about SERE and I’d find out that someone else was doing the same thing, or that it was going to be used at Gitmo, never be part of discussion about what they were going to do. Read more →

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Senate Armed Services Torture Hearing

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Joby Warrick maps out what we can expect from today’s Senate Armed Services Committee hearing, now showing on CSPAN3.

A Senate investigation has concluded that top Pentagon officials began assembling lists of harsh interrogation techniques in the summer of 2002 for use on detainees at Guantanamo Bay and that those officials later cited memos from field commanders to suggest that the proposals originated far down the chain of command, according to congressional sources briefed on the findings.

The sources said that memos and other evidence obtained during the inquiry show that officials in the office of then-Defense Secretary Donald H. Rumsfeld started to research the use of waterboarding, stress positions, sensory deprivation and other practices in July 2002, months before memos from commanders at the detention facility in Cuba requested permission to use those measures on suspected terrorists.

The reported evidence — some of which is expected to be made public at a Senate hearing today — also shows that military lawyers raised strong concerns about the legality of the practices as early as November 2002, a month before Rumsfeld approved them. The findings contradict previous accounts by top Bush administration appointees, setting the stage for new clashes between the White House and Congress over the origins of interrogation methods that many lawmakers regard as torture and possibly illegal.

This is a well-constructed hearing–and I say that not just because my Senator, Carl Levin, put it together. It has three panels. The first features the people who turned SERE techniques into torture techniques:

Mr. Richard L. Shiffrin
Former Deputy General Counsel for Intelligence
Department of Defense

Lieutenant Colonel Daniel J. Baumgartner, Jr., USAF (Ret.)
Former Chief of Staff
Joint Personnel Recovery Agency

Dr. Jerald F. Ogrisseg
Former Chief, Psychology Services
336th Training Group
United States Air Force Survival School

The second panel will expose the debate among military lawyers about whether or not to use torture:

Mr. Alberto J. Mora
Former General Counsel
United States Navy

Rear Admiral Jane G. Dalton, USN (Ret.)
Former Legal Advisor to the Chairman
Joint Chiefs of Staff

Lieutenant Colonel Diane E. Beaver, USA (Ret.)
Former Staff Judge Advocate
Joint Task Force 170/JTF Guantanamo Bay

And the third features Jim "Chevron" Haynes, who is under some pressure for his changing testimony, potentially amounting to perjury:

Mr. William J. Haynes II
Former General Counsel
Department of Defense

Here are the documents that will be discussed during the hearing (courtesy of WO and Marty Lederman).

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Can’t Gitmo Dirty – The Penultimate Straw

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Marcy is in Minneapolis at the Wide Stance Film Festival National Conference for Media Reform (a really cool program I might add, the link is worth a look) and Ted Stevens clogged my tubes last night, but things look to be A-OK this morning.

Guantanamo The Showcase is starting to seep into the conscience. Marcy has pointed out the rather curious intersection of the right wing family value of hating on same sex marriage, and those who would wish to practice it, with military commission procedure. By far and away, the best national reporting on the Guantanamo Show is, and has long been, done by Carol Rosenberg at the Miami Herald. Marcy thinks it is Pulitzer Prize good; by the time the year is out, I’ll bet she may be right. Our friend drational has done a couple of posts reminding us that the Gitmo Showcase is much more than a macabre puppet play for the Cheney/Bush torture fiends, it is also a big campaign commercial for the "law and order" set at the GOP.

But I want to bring attention to something that really sank in for me yesterday morning and that a few people are starting to pick up on, but not many, and not nearly enough. Rosenberg laid out the background on the day long arraignment proceedings for the detainees at Gitmo at the link cited above:

But the day was remarkable — a 9 a.m. to 6:30 p.m. court session, including two prayer breaks — in which each man rejected the two to four military and civilian attorneys sitting beside him.

The director of the American Civil Liberties Union, Anthony Romero, watched from the spectators gallery in a fury. He had been building a death penalty defense fund and pool of criminal defense lawyers to help the military lawyers.

”It was one of the saddest days in American jurisprudence,” he said. ‘The word `torture’ was used so abundantly and the legal process continued.”

He blamed Pentagon haste to get the men to trial before the end of the Bush administration. Defense lawyers were not given sufficient time to forge attorney-client relationships ”with men who were tortured for five years,” before Thursday’s arraignment, he said.
…
Some of the men rejected the legitimacy of commissions, in which U.S. military officers serve as judge and jurors. Saudi Mustafa Hawsawi, who allegedly funneled funds for the terror plot, went last and appeared to be echoing the others who came before him.
…
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The DHS Report on Maher Arar

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Marty Lederman links to the DHS OIG report on Maher Arar’s transfer to and subsequent torture in Syria. It’s really really ugly reading, even though they’ve obviously redacted a lot of the paragraphs that ought to reveal the decision making process by which we decided sending Arar home to Canada or even to Switzerland so instead sent him to be tortured (many of the redacted paragraphs are marked with "U’s,"
signifying they’re unclassified).

Anyway, some more light reading to bring with me on my trip to Minneaplis this weekend for the Media Reform Conference.

In the meantime, I’m struck by this bit from Marty:

Interestingly, in his own testimony today, the Homeland Security IG states that "we have reopened our review into the Mr. Arar matter because, less than a month ago, we received additional information that contradicts one of the conclusions in our report. As such, we are in the process of conducting additional interviews to determine the validity of this information to the extent we can."

It’s not clear what the IG is treating as conclusions. But one of the big issues in the report–predictably–was how the hell it was that DOJ reviewed Syria’s human rights record and didn’t notice (right, yeah) that Arar was likely to be tortured. So I’m curious if the IG learned some new details about that decision-making process.

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The JAG Dismisses the Unitary Executive

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Via POGO, the Pentagon has made two key documents relating to the military’s use of torture available on its website: a March 2003 JAG Memo slamming a draft of the Working Group’s Report on Detainee Interrogation, and the Working Group’s Report which was published the following month. As POGO notes, these documents were declassified some time ago (Marty Lederman had posted the JAG one here and WaPo posted the report here), but they provide important context to the discussions surrounding John Yoo’s March 2003 Torture Memo.

I’ll come back to the Working Group Report (which lays out the potential risks for when the public discovers the US is using torture and has a nifty list of the ways our interrogation techniques would piss off our allies), but for now I just wanted to show how dubious the Judge Advocate general, General Thomas Romig, found John Yoo’s (and the Administration’s) Unitary Executive theories to be:

The Office of Legal Counsel (OLC), Department of Justice (DOJ), provided DOD with its analysis of international and domestic law as it relates to the interrogation of detainees held by the United States Government. This analysis was incorporated into the subject draft Report and forms, almost exclusively, the legal framework for the Report’s Conclusions, Recommendations, and PowerPoint spreadsheet analysis of interrogation techniques in issue. I am concerned with several pivotal aspects of the OLC opinion.

While the OLC analysis speaks to a number of defenses that could be raised on behalf of those who engage in interrogation techniques later perceived to be illegal, the "bottom line" defense proffered by OLC is an exceptionally broad concept of "necessity." This defense is based on the premise that any existing federal statutory provision or international obligation is unconstitutional per se, where it otherwise prohibits conduct viewed by the President, acting in his capacity as Commander-in-Chief, as essential to his capacity to wage war. I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum. If such a defense is not available, soldiers ordered to use otherwise illegal techniques run a substantial risk of criminal prosecution or personal liability arising from a civil lawsuit.

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John Yoo v. Alice Fisher and Michael Chertoff

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Man, if you had to choose whom to believe between John Yoo or Alice Fisher and Michael Chertoff who would it be? John Yoo is a hack–but he’s an unashamed hack, proud of his accomplishments. Alice Fisher? Michael Chertoff? They’re more of the dishonest hack type.

The reason I ask is that there’s a seeming contradiction between what Yoo claims in his March 2003 torture memo regarding DOD practices and Alice Fisher and Michael Chertoff’s statements to DOJ’s OIG regarding related events. At issue is whether the Criminal Division of DOJ–Fisher was the Deputy Assistant Attorney General in 2003, and just resigned from Criminal Division Chief; Chertoff was head of the Criminal Division when the Administration was developing its torture policies–told OLC how they would treat certain actions criminally. The Yoo Torture Memo claims that OLC had consulted with the Criminal Division about which statutes would not apply to the military during the conduct of war:

The Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war.

But the DOJ OIG report on torture records Alice Fisher stating that the Criminal Division did not give advice–at least not on the techniques themselves.

Fisher stated that at some point she became aware that the CIA requested advice regarding specific interrogation techniques and that OLC had conducted a legal analysis. She also said she was aware of two OLC memoranda on that topic, but they did not relate to the FBI. Fisher also told the OIG that Chertoff was very clear that the Criminal Division was not giving advice on which interrogation techniques were permissible and was not "signing off" in advance on any techniques. (page 70fn; 113/438)

And Chertoff claims that he was asked–but refused to give–sign off on particular techniques.

Chertoff said that the Criminal Division was asked to provide an "advance declination" in connection with the CIA’s use of some techniques, but that he had refused to provide it.  (page 100-101; 143-4/438)

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