Secret Justice Department torture approval revealed

Well, it seems that James B. Comey, the man who threatened to subpoena WW4 Report, was actually the progressive within the context of the Bush Justice Department. From the front page of the New York Times, Oct. 4 (links added):

Secret US Endorsement of Severe Interrogations
WASHINGTON — 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.

Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.

Later that year, as Congress moved toward outlawing “cruel, inhuman and degrading” treatment [Well, not quite.—WW4R], the Justice Department issued another secret opinion, one most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard…

Associates at the Justice Department said Mr. Gonzales seldom resisted pressure from Vice President Dick Cheney and David S. Addington, Mr. Cheney’s counsel, to endorse policies that they saw as effective in safeguarding Americans, even though the practices brought the condemnation of other governments, human rights groups and Democrats in Congress. Critics say Mr. Gonzales turned his agency into an arm of the Bush White House, undermining the department’s independence.

The interrogation opinions were signed by Steven G. Bradbury, who since 2005 has headed the elite Office of Legal Counsel at the Justice Department. He has become a frequent public defender of the National Security Agency’s domestic surveillance program and detention policies at Congressional hearings and press briefings, a role that some legal scholars say is at odds with the office’s tradition of avoiding political advocacy.


After the Supreme Court ruled in 2006 that the Geneva Conventions applied to prisoners who belonged to Al Qaeda, President Bush for the first time acknowledged the C.I.A.’s secret jails and ordered their inmates moved to Guantánamo Bay, Cuba. The C.I.A. halted its use of waterboarding, or pouring water over a bound prisoner’s cloth-covered face to induce fear of suffocation.

But in July, after a monthlong debate inside the administration, President Bush signed a new executive order authorizing the use of what the administration calls “enhanced” interrogation techniques — the details remain secret — and officials say the C.I.A. again is holding prisoners in “black sites” overseas. The executive order was reviewed and approved by Mr. Bradbury and the Office of Legal Counsel.


in August 2002, the [Justice] department provided a sweeping legal justification for even the harshest tactics.

That opinion, which would become infamous as “the torture memo” after it was leaked, was written largely by John Yoo, a young Berkeley law professor serving in the Office of Legal Counsel. His broad views of presidential power were shared by Mr. Addington, the vice president’s adviser. Their close alliance provoked John Ashcroft, then the attorney general, to refer privately to Mr. Yoo as Dr. Yes for his seeming eagerness to give the White House whatever legal justifications it desired, a Justice Department official recalled.

Mr. Yoo’s memorandum said no interrogation practices were illegal unless they produced pain equivalent to organ failure or “even death.” A second memo produced at the same time spelled out the approved practices and how often or how long they could be used.

Despite that guidance, in March 2003, when the C.I.A. caught Khalid Sheikh Mohammed, the chief planner of the Sept. 11 attacks, interrogators were again haunted by uncertainty. Former intelligence officials, for the first time, disclosed that a variety of tough interrogation tactics were used about 100 times over two weeks on Mr. Mohammed. Agency officials then ordered a halt, fearing the combined assault might have amounted to illegal torture. A C.I.A. spokesman, George Little, declined to discuss the handling of Mr. Mohammed. Mr. Little said the program “has been conducted lawfully, with great care and close review” and “has helped our country disrupt terrorist plots and save innocent lives.”


In late 2003, after Mr. Yoo left the Justice Department, the new head of the Office of Legal Counsel, Jack Goldsmith, began reviewing his work, which he found deeply flawed. Mr. Goldsmith infuriated White House officials, first by rejecting part of the National Security Agency’s surveillance program, prompting the threat of mass resignations by top Justice Department officials, including Mr. Ashcroft and Mr. Comey, and a showdown at the attorney general’s hospital bedside.

Then, in June 2004, Mr. Goldsmith formally withdrew the August 2002 Yoo memorandum on interrogation, which he found overreaching and poorly reasoned. Mr. Goldsmith, who left the Justice Department soon afterward, first spoke at length about his dissenting views to The New York Times last month, testified before the Senate Judiciary Committee on Tuesday.

Six months later, the Justice Department quietly posted on its Web site a new legal opinion that appeared to end any flirtation with torture, starting with its clarionlike opening: “Torture is abhorrent both to American law and values and to international norms.”

A single footnote — added to reassure the C.I.A. — suggested that the Justice Department was not declaring the agency’s previous actions illegal. But the opinion was unmistakably a retreat. Some White House officials had opposed publicizing the document, but acquiesced to Justice Department officials who argued that doing so would help clear the way for Mr. Gonzales’s confirmation as attorney general.

If President Bush wanted to make sure the Justice Department did not rebel again, Mr. Gonzales was the ideal choice… Among his first tasks at the Justice Department was to find a trusted chief for the Office of Legal Counsel… Mr. Bradbury soon emerged as the presumed favorite… the White House grew comfortable with Mr. Bradbury’s approach.. [H]e signed the opinion approving combined interrogation techniques.

Mr. Comey strongly objected and told associates that he advised Mr. Gonzales not to endorse the opinion. But the attorney general made clear that the White House was adamant about it, and that he would do nothing to resist.

Under Mr. Ashcroft, Mr. Comey’s opposition might have killed the opinion. An imposing former prosecutor and self-described conservative who stands 6-foot-8, he was the rare administration official who was willing to confront Mr. Addington. At one testy 2004 White House meeting, when Mr. Comey stated that “no lawyer” would endorse Mr. Yoo’s justification for the N.S.A. program, Mr. Addington demurred, saying he was a lawyer and found it convincing. Mr. Comey shot back: “No good lawyer,” according to someone present.

“On national security matters generally, there was a sense that Comey was a wimp and that Comey was disloyal,” said one Justice Department official who heard the White House talk, expressed with particular force by Mr. Addington.

Mr. Comey provided some hints of his thinking about interrogation and related issues in a speech that spring. Speaking at the N.S.A.’s Fort Meade campus on Law Day — a noteworthy setting for the man who had helped lead the dissent a year earlier that forced some changes in the N.S.A. program — Mr. Comey spoke of the “agonizing collisions” of the law and the desire to protect Americans.

“We are likely to hear the words: ‘If we don’t do this, people will die,'” Mr. Comey said. But he argued that government lawyers must uphold the principles of their great institutions.

“It takes far more than a sharp legal mind to say ‘no’ when it matters most,” he said. “It takes moral character. It takes an understanding that in the long run, intelligence under law is the only sustainable intelligence in this country.”

Mr. Gonzales’s aides were happy to see Mr. Comey depart in the summer of 2005. That June, President Bush nominated Mr. Bradbury to head the Office of Legal Counsel, which some colleagues viewed as a sign that he had passed a loyalty test.

See our last post on the torture scandal.

  1. “This government does not torture people.”
    That’s what George Bush told the press Oct. 5 in response to the new torture memo revelations. Here’s the full quote, from the AP:

    “When we find somebody who may have information regarding a potential attack on America, you bet we’re going to detain them, and you bet we’re going to question them,” he said during a hastily called appearance in the Oval Office. “The American people expect us to find out information, actionable intelligence so we can help protect them. That’s our job.”

    Bush volunteered his thoughts on a report on two secret memos in 2005 that authorized extreme interrogation tactics against terror suspects. “This government does not torture people,” the president said.

    This is a case study in the propaganda trick identified by George Orwell in “Politics and the English Language” as “Meaningless Words“:

    The words democracy, socialism, freedom, patriotic, realistic, justice have each of them several different meanings which cannot be reconciled with one another. In the case of a word like democracy, not only is there no agreed definition, but the attempt to make one is resisted from all sides. It is almost universally felt that when we call a country democratic we are praising it: consequently the defenders of every kind of regime claim that it is a democracy, and fear that they might have to stop using that word if it were tied down to any one meaning. Words of this kind are often used in a consciously dishonest way. That is, the person who uses them has his own private definition, but allows his hearer to think he means something quite different. Statements like Marshal PĂ©tain was a true patriot, The Soviet press is the freest in the world, The Catholic Church is opposed to persecution, are almost always made with intent to deceive.

    George Bush’s great contribution to the age of propaganda is to add “torture” to the list of “meaningless words.” Bush can say “This government does not torture people,” because he has his own “private definition” of torture. This was made explicit in the Bybee Memo. The background and incriminating passages are in this analysis from Human Rights First, run in the February 2005 issue of Peacework:

    The Torture Memos

    In 2002, Mr. Gonzales asked the Office of Legal Counsel to prepare legal opinions on interrogation standards under the Convention against Torture as implemented by federal statute and binding international law obligations. The memo addressed to Gonzales (the “Bybee memo”) served as the direct legal underpinning for harsh interrogation tactics employed on individuals detained by the United States in Afghanistan, in Iraq, and at Guantanamo Bay.

    The Bybee memo reads largely like a roadmap to circumventing laws against torture. Yet it appears that no one involved in these deliberations, including Gonzales, had any misgivings about this legal opinion for nearly two years until it was publicly disclosed. The Bybee memo includes the following conclusions:

    * “[F]or an act to constitute torture, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

    * “For purely mental pain or suffering to amount to torture, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”

    * “[E]ven if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control.

    * “[U]nder the current circumstances, necessity or self-defense may justify interrogation methods that might violate Sections 2340A.”

    In response to the widespread criticism of the Bybee memo, the Department of Justice issued a new memo on December 30, 2004, stating that it superseded the Bybee memo in its entirety, in which the analysis directly addressing the definition of torture was ameliorated. The memo did not, however, address the OLC’s earlier conclusions that necessity or self-defense might justify torture.

    At the [confirmation] hearing, Senator Leahy asked [Attorney General appointee Alberto] Gonzales whether he agreed with the Bybee memo’s conclusion that for an act to violate the torture statute, “it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Gonzales answered: “I don’t recall today whether or not I was in agreement with all of the analysis, but I don’t have a disagreement with the conclusions then reached by the department.” Mr. Gonzales refused to disclose any documents related to that memo.

    Senator Durbin asked Mr. Gonzales whether it was legally permissible for US personnel to engage in “cruel, inhuman or degrading treatment,” stripping the prohibition on torture of much meaning as applied to non-citizens detained outside of the United States. Gonzales noted that the United States defines “cruel, inhuman or degrading treatment” as conduct prohibited by the Fifth, Eighth, and/or Fourteenth Amendments. Based on this reservation, Gonzales explained that the United States was “as a legal matter…in compliance” with the prohibition because “aliens interrogated by the US outside the United States enjoy no substantive rights under the Fifth, Eighth and Fourteenth Amendments.” In a written response to Senator Feinstein for further clarification on this issue, Gonzales stated “that under Article 16 there is no legal obligation under the Convention Against Torture on cruel, inhuman, or degrading treatment with respect to aliens overseas.” That analysis flies in the face of the treaty’s ratification history and would remove serious human rights violations from legal prohibition.

    The full text of the Bybee Memo is online at

    Note that the author of the memo, former Assistant Attorney General Jay Bybee, is facing war crimes charges along with Donald Rumsfeld in a case brought by the Center for Constitutional Rights in Germany.

  2. Another torture memo revealed
    From the Washington Post, April 1:

    Terrorism Interrogators Immune From Prosecution, ’03 Memo Says
    Since Rescinded, the Document Granted Nearly Unfettered Presidential Power

    Federal laws prohibiting assault and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander-in-chief overrode such statutes, according to a newly declassified 2003 Justice Department memo released today.

    The memo–which was rescinded just nine months after it was issued–provides an expansive argument for nearly unfettered presidential power in a time of war, contending that numerous laws and treaties that forbid torture or cruel treatment should not apply to the interrogations of enemy combatants overseas.

    The 81-page document was sent to the Pentagon’s general counsel on March 14, 2003 by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, and became the legal foundation for the Defense Department’s use of aggressive interrogation practices.

    The memo asserts that domestic and international laws and treaties, as well as the U.S. Constitution, would not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.

    “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,” Yoo wrote in the memo. “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.”

    Interrogators who harmed a prisoner also would be protected by a “national and international version of the right to self-defense,” Yoo wrote.

    Congress passed the Detainee Treatment Act of 2005, which required the Defense Department to limit interrogation technique to those described in the Army Field Manual. In 2006, the Army rewrote the manual, which now specifically prohibits many of the tactics the administration sought to use.

    Although the existence of the March 14, 2003 memo has long been known, its contents previously have never been disclosed. The memo was rescinded along with another from August 2002 that narrowly defined the bounds of torture, which also was written by Yoo but signed by another Justice Department official who is now a federal judge.

    The documents are part of a growing collection of disputed or controversial legal memoranda and internal reports that undergirded a series of coercive interrogation techniques employed by the Bush administration in the years after the Sept. 11, 2001 terrorist attacks. The newly released memo was sent by the Justice Department late today to lawmakers on Capitol Hill, who have long pushed for its declassification.

    The working group report, along with the memos from Yoo and others, were withdrawn after a group of dissident lawyers at the Justice Department later concluded that the legal reasoning behind the documents was deeply flawed.

    In his 2007 book, “The Terror Presidency,” Jack Goldsmith, who was head of the Office of Legal Counsel from 2003 to 2004, writes that the Yoo memorandum was one of two internal Justice Department opinions that “stood out” for “the unusual lack of care and sobriety in their legal analysis.”

    Among many other problems, Goldsmith wrote, both memos “were wildly broader than was necessary to support what was actually being done.”

    Yoo’s memo in March 2003 came amid contentious debate inside the Pentagon about which interrogation techniques should be allowed at Defense Department facilities and which could open U.S. service members to potential legal troubles, both in domestic and international courts.

    A Pentagon working group began meeting in January 2003 after then-Defense Secretary Donald H. Rumsfeld suspended a list of aggressive techniques he had allowed for a single detainee at Guantanamo Bay, Cuba. The prisoner, military investigators later would determine, faced an interrogation regime that included stress positions, nudity, hooding, exposure to dogs and other aggressive techniques.

    The working group’s 2003 report, prepared under the supervision of then-general counsel William J. Haynes II, said that “in order to respect the President’s inherent constitutional authority to manage a military campaign . . . [the prohibition against torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.”

    In the days before Yoo sent his memo to Haynes, the top lawyers for each service wrote strenuous objections to the use of Justice Department arguments on the matter, arguing that the use of such extreme techniques could send a dangerous message to other nations about what the United States considers acceptable, and that using such techniques could amount to “unlawful” conduct by U.S. troops.

    “Implementation of questionable techniques will very likely establish a new baseline for acceptable practice in this area, putting our service personnel at far greater risk and vitiating many of the POW/detainee safeguards the U.S. has worked hard to establish over the past five decades,” wrote Maj. Gen. Thomas J. Romig, then the Army’s Judge Advocate General, on March 3, 2003.

    Rear Adm. Michael F. Lohr, the Navy’s top lawyer, asked in a memo at the time whether the American people would find “we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values?”

    A draft memo from the working group on March 6, 2003 dismissed most of the service lawyers’ recommendations and relied heavily on the Justice Department’s reasoning. Air Force General Counsel Mary Walker, who wrote the memo, used the administration’s position on denying detainees Geneva Convention rights and on the definition of torture to justify the use of aggressive tactics.

    Walker’s group issued a final report on April 4, 2003, that defends the use of extremely aggressive tactics. In part of its discussion about techniques such as using dogs, removal of clothing, slaps, sleep deprivation and other techniques, the report said: “Generally, the legal analysis that was applied is that understood to comport with the views of the Department of Justice.”

    The service JAGs did not receive a copy of Yoo’s March memo and did not know about the final working group report for more than a year.

    “There was no consensus on the working group, and the report that Mary Walker put together was done with very little of our input, or she just didn’t listen to the input from the group,” Romig, now dean of the Washburn University School of Law in Kansas, said yesterday. “When this all came out, I think it just caused a level of confusion, where people were trying to push the envelope. It gave more credence to the argument that this was all a new model, a new dynamic we were in, and therefore the old rules didn’t apply.”

    Romig said top civilians in the Pentagon and within the Bush administration consistently refused to listen to lawyers in uniform, despite their dire predictions that deviating from time-tested interrogation norms could result in disaster.

    “It taints the military in a way that it doesn’t by and large deserve,” Romig said. “Nevertheless, these things have occurred. It’s terribly damaging to the armed forces and to our country to have had this happen in the way that it’s happened.”