Pressure Mounts on DOJ to Produce Missing E-Mails

The pressure is growing on the Justice Department to produce supposedly "deleted" e-mails that could reveal whether government lawyers during the Bush administration were instructed to devise legal justifications for torture.

These are, as I noted last week, most of John Yoo's e-mails, and a chunk of those of his colleague Patrick Philbin at precisely the time that Philbin was involved in reviewing two of the controversial Office of Legal Counsel memos approving torture, stress positions, prolonged sleep deprivation and other abusive interrogation techniques. As the Office of Professional Responsibility pointed out in its final report on the lawyers' ethical obligations, those e-mails were all oddly deleted and unretrievable.

So far, Citizens for Responsibility and Ethics in Washington (CREW), the National Archives, Senator Patrick Leahy (D-Vt.), and The New York Times have called on DOJ to find and produce the e-mails or lauunch a criminal investigation if they were indeed destroyed.

Then on Monday, Rep. John Conyers (D-Mich.) took a different tack; he called on the the National Archives to produce the White House side of those missing e-mails, since those are presidential records that must be retained under the Presidential Records Act.

Over the weekend, John Yoo, while railing at the "incompetence" of the OPR, which was "obviously biased" and "selectively tried to persecute only a few officials" in the OLC (they should have gone after the whole Justice Department, apparently), denies that OPR didn't have his e-mails and adds that in any event, the Justice Department's e-mail system is unclassified and so couldn't be used to discuss interrogation techniques that were "classified at the highest levels of secrecy."

Of course, discussions between Yoo and the White House or CIA about the memos he was writing didn't necessarily have to contain classified information in them for them to reveal whether senior officials were instructing Yoo to find a justification for breaking the law. In fact, many e-mails referenced in the report related to the memos were not classified, asMarcy Wheeler pointed out on Sunday.

Meanwhile, the National Security Administration, as it notes on its website, provides "security configuration guides" for government agencies to help them transmit classified material electronically. So whether it was through his DOJ e-mail or another government e-mail address, Yoo was almost certainly able to send classified material to his "clients" - the White House and the CIA -- by e-mail.

There doesn't appear to be any real question that Yoo was required to retain those e-mails. As CREW wrote in its letter, the Federal Records Act requires the preservation of government documents. Over the weekend, Jason Leopold pointed out on Truthout that the DOJ's web site explains that an e-mail is probably a federal record that must be preserved if it documents "agreements reached in meetings, telephone conversations, or other E-mail exchanges on substantive matters relating to business processes or activities; Provides comments on or objections to the language on drafts of policy statements or action plans; or Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities." The DOJ rules also say that "the unlawful removal or destruction of federal records" can result in "criminal or civil penalties, fines and/or imprisonment."

Even if Justice refuses to further investigate whether high-level officials in the former administration broke the law, it may feel some pressure to at least investigate whether a DOJ attorney broke the DOJ's own rules - which may turn out to be an attempt to cover up some much more serious lawbreaking.

What We Need to Hear About the Torture Report

At 10 a.m. on Friday, February 26, the Senate Judiciary Committee will hold a hearing on theOffice of Professional Responsibility's investigation into the Justice Department memos that authorized the torture of detainees in U.S. custody during the Bush administration.

That's a good start for a committee that's closely followed this issue, but it should be just the beginning.

Human Rights First will be attending and blogging on the hearing. We'll also be answering readers' questions about the report, the Senate hearing, and the various ways of holding accountable the government officials who participated in plans to interrogate prisoners using torture and cruel, inhuman, and degrading treatment.

So far, the only witness scheduled to testify at that hearing is Gary G. Grindler, the Acting Deputy Attorney General who's temporarily replaced David Ogden, the senior DOJ official who resigned in December.

Given that the OPR report found that Office of Legal Counsel lawyers deliberately or "recklessly" twisted the law to justify the use of interrogation techniques that amounted to torture, the Justice Department now has strong evidence of a criminal conspiracy. But we need to know more, and we hope the Senators on the Judiciary Committee tomorrow will be asking the right questions.

Here are some questions we'd like to put to the Justice Department, and to the Committee:

1) Where will the Justice Department take this investigation from here? What are the next steps?

2) The OPR said its investigation was hampered by the mysterious disappearance of John Yoo's e-mails, as well as those of his colleague, Patrick Philbin. The FBI has the technology necessary to recover deleted emails. Will the Justice Department employ that technology?

3) The disappearance of Yoo's and Philbin's e-mails are more than just suspicious. It may amount to a deliberate obstruction of justice. Will DOJ investigate when and why the messages were deleted, and whether their deletion amounts to a crime?

4) In addition to the missing e-mails, the OPR investigators noted that many key witnesses "declined" to speak with OPR, seriously limiting its investigation. Witnesses who refused to speak to investigators included every former White House official except Alberto Gonzales, and almost all of the CIA attorneys. CIA records also were not available. Only by collecting all of this relevant evidence can we know what instructions White House and CIA officials gave to the OLC lawyers, and whether the lawyers were told to draft legal justifications for what both lawyer and client knew was criminal conduct. Will DOJ use its subpoena power to require those witnesses to provide testimony and relevant records?

5) The Justice Department has so far suggested that it will not criminally investigate the conduct of any senior officials or lawyers in the prior administration. Will the Senate Judiciary Committee schedule further hearings of its own to find the answers to these questions?

6) Some lawmakers have proposed an independent, nonpartisan "Commission of Inquiry" to investigate how the U.S. came to abuse and torture detainees. A commission could go a long way toward revealing what really happened and making concrete recommendations to keep it from happening again. Will the Justice Department and Senate Judiciary Committee support creating a commission to ensure that we learn from our past mistakes?

Please suggest any more questions you'd like to see answered, and follow up with any questions for us after the hearing!

Who Told John Yoo To Do Those 'Bad Things'?

Among the many striking aspects of the Justice Department's recently-released ethics report on the creation of the "torture memos" are the repeated indications that John Yoo, the memos' principal author, was in frequent direct contact with the White House and under intense pressure to quickly approve abusive interrogation techniques that policymakers had already chosen to implement but knew might amount to torture.

The final report reveals that despite repeated criticism of Yoo's draft opinions and conclusions from the most experienced, knowledgeable senior attorneys and military officials within the Bush administration, the memos, written by a relatively junior attorney within the Office of Legal Counsel and representing an admittedly "aggressive" view of the law, were adopted and used to determine CIA and defense department interrogation policy.

Those facts underscore that the long-delayed final report from the DOJ's Office of Professional Responsibility should be the beginning, not the end, of any investigation. What we still need to know is who was instructing the OLC lawyers and what exactly the lawyers were told. If White House officials were instructing them to create legal justifications for a program those officials knew was likely illegal, then we have evidence of a high-level criminal conspiracy.

Yoo Was Under "Significant Pressure" to Justify Torture

That's in fact what National Security Counsel legal advisor John Bellinger suggested, perhaps inadvertently, when he told the OPR investigators, as they describe in their report: "Yoo was 'under pretty significant pressure to come up with an answer that would justify [the program]' and that, over time, there was significant pressure on the Department to conclude that the program was legal and could be continued, even after changes in the law in 2005 and 2006."

The final report provides lots more evidence of that. For example, Yoo began drafting the sections of a memo concluding that the president has extraordinary power to ignore the law and setting out several possible defenses to torture directly after a meeting at the White House. Although Former Deputy Assistant Attorney General Patrick Philbin told Yoo that "he thought the sections were superfluous and should be removed," Philbin said that "Yoo responded,'They want it in there.'" OPR recounts that "Philbin did not know who 'they' referred to and did not inquire; rather, he assumed that it was whoever had requested the opinion."

Because of the urgency of the process - there are frequent references to time pressures imposed by the White House throughout the report -- Philbin advised Bybee that he could sign the opinion despite its problematic sections on defenses and executive power because "they are telling us this has to be signed tonight."

Former Attorney General Alberto Gonzales, meanwhile, who was White House counsel at the time the memos were drafted, told OPR that he didn't recall discussing the two controversial sections of the memo, but "speculated that because David Addington had strong views on the Commander-in-Chief power, he may have played a role in developing that argument."

Gonzales later commented that Addington was " 'an active player' in providing his view and input on the draft memorandum."

"I'd be very surprised if David [Addington] did not participate in the drafting of this document," Gonzales said at one point.

But if OLC's job is to provide the executive branch with objective legal advice, then why would the Vice President's legal advisor actively participate in the OLC memo drafting process? Addington appears to have been not just interested in the outcome, but eager to influence it.

Senior Administration Lawyers Objections Were Ignored

Significantly, throughout this drafting process, Michael Chertoff, then chief of the Justice Department's criminal division and apparently the only lawyer involved who was actually an expert on criminal law -- refused to sign on to parts of Yoo's analysis and refused to provide a letter promising not to prosecute interrogators for the conduct specified in the memos.

Chertoff at one point told Yoo that he was concerned that the memo could be interpreted as providing "blanket immunity." He also told Yoo that for the interrogation techniques to be defensible, he needed more evidence that OLC had researched their actual effects on individual subjects. But the final memos instead simply adopted the CIA's blanket assertions that the techniques would not cause lasting harm and were effective.

Philbin also told Yoo that he disagreed with parts of his memos and their analysis, including his use of an irrelevant medical benefits statute to define the "severe pain" necessary for abuse to constitute torture. Construing severe pain as the kind associated with organ failure, Philbin said, "did not provide 'useful, concrete guidance concerning what amounts to 'severe pain,' " because "there is no readily identifiable level of pain that precedes medical events such as organ failure."

Yet despite these criticisms, OPR notes that as the drafts progressed of Yoo's torture memo - what Yoo euphemistically called the "bad things" memo - the drafts increasingly emphasized that the pain had to rise to extraordinarily "severe" levels in order to be considered torture - deliberately including the comparison to pain that accompanies organ failure.

Philbin and Chertoff also both expressed concerns about the "specific intent" required by Yoo's definition of torture, which seemed to excuse anything except sheer sadism. The Bybee memo, for example, principally authored by Yoo and signed by Bybee, who was then head of the office, concluded that an interrogator could torture subjects so long as he didn't have the intent to cause them severe pain or harm:

"Even 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."

But as former Acting OLC director Daniel Levin told OPR: "It sort of suggested that if I hit you on the head with a, you know, steel hammer, even though I know it's going to cause specific pain, if the reason I'm doing it is to get you to talk rather than to cause pain, I'm not violating the statute. I think that's just ridiculous...It's just not the law."

The OPR report notes that Yoo also had "a lot of arguments" with members of the Pentagon's Working Group on the interrogation techniques, who strongly disagreed with OLC's legal analysis. Those critics included Navy General Counsel Alberto Mora, who specifically said he believed some of the EITs constituted cruel and unusual treatment or torture and would violate domestic and international law. Army JAG Major General Thomas J. Romig also had "serious concerns" about approving detainee interrogations that "may appear to violate international law, domestic law, or both."

That the final memos ignored the concerns of senior military attorneys in the administration yet were relied upon to set policy strongly suggests that criticism was not what the client wanted to hear.

Having provided the White House with the opinions it wanted, Yoo was well-positioned to replace Jay Bybee as head of the OLC when Bybee left to become a federal judge. The only reason Jack Goldsmith was hired instead, according to footnote 83 of the report, is that Ashcroft objected "because he thought Yoo was too close to the White House."

Critical Evidence Is Still Missing

To anyone who's actually read the report, the White House's fingerprints on the torture memos may seem obvious. But it's significant that the OPR investigators were unable to reconstruct exactly what the White House instructed Yoo and his colleagues to do, because critical information - including "most of Yoo's e-mail records and Philbin's e-mail records during the period when key memos were being drafted and completed - "had been deleted and were not recoverable."

OPR was also kept from reconstructing the chain of command by the fact that key witnesses "declined to be interviewed," including former Attorney General John Ashcroft, former counsel to Vice President Dick Cheney David Addington, and former Deputy White House Counsel Timothy Flanigan.

OPR also had "limited access to CIA records and witnesses (including almost all of the CIA attorneys and all witnesses from the White House other than former White House Counsel Alberto Gonzales.)"

Ultimately, these missing pieces - plus Jay Bybee's suspiciously "poor memory of the drafting process" made it impossible for OPR to connect the dots: to determine who instructed whom to do what.

Witnesses in the report repeatedly characterize John Yoo and Jay Bybee's legal analyses as "aggressive" - not unlike Justice Department Assistant Attorney General David Margolis's conclusion that the lawyers' work exhibited "poor judgment" rather than criminal intent. Perhaps that would be an appropriate conclusion if these lawyers were advising a client making an argument to a court, where they'd face an equally aggressive opponent and the final decisions would be made by a neutral judge.

But that's not what happens when the Office of Legal Counsel advises the president. There is no neutral judge. Indeed, OLC's role is more like that of a judge - stating what the law is for the executive branch. That's why the role of OLC lawyers is supposed to be different than the usual attorney-client relationship.

Indiana law professor Dawn Johnsen, President Obama's nominee to head the OLC (and whose confirmation has been held up in the Senate for almost a year now) has written that the "paramount principle that should guide OLC's work is the imperative to provide accurate and honest legal appraisals, unbiased by policymakers' preferred outcomes." The guidelines that should guide OLC lawyers, Johnsen wrote, referring to a set of "ten commandments" that she and 18 other alumni of the Office of Legal Counsel agreed upon, "come down squarely on the side of accuracy over advocacy. . . . In short, OLC must be prepared to say no to the President."

The OPR report makes clear that Yoo and Bybee didn't - or were not allowed to - just say no. The question that remains, and that Congress must now investigate, is whose position were they advocating, and were they instructed to ignore contradictory legal authority?

If so, then they and their "client" may have crossed more than the line between advocate and arbiter. The line that matters now is the one between "poor judgment" and criminality. And that's far more important than whether John Yoo and Jay Bybee face ethical sanctions from their respective state bar associations.

The OPR Report Is Only the Beginning

In reporting on the long-delayed release of the Justice Department's ethics report on the work of Bush administration lawyers who approved the torture of detainees, The New York Timeson Saturday wrote that it "brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration's fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture."

The Washington Post, meanwhile, said the report represents "the end of a 5-year internal battle" at the Justice Department.

In fact, the Office of Professional Responsibility report is just the beginning of a bigger and more important battle. Legal ethics investigators concluded that former Office of Legal Counsel lawyers John Yoo and Jay Bybee committed "professional misconduct" in advising the Bush administration that it was not against the law to torture, humiliate and abuse detainees despite longstanding domestic and international prohibitions against doing so. The battle now will be over whether the U.S. government will meet its obligations to thoroughly investigate what happened and hold the perpetrators accountable.

The final OPR report chastises the two OLC lawyers for reaching bizarre legal conclusions that were wholly unsupported by the law. For example, one of their memos claimed that torture was legal so long as an interrogator's goal was to obtain information rather than to inflict severe pain or suffering - even if he knew he would inflict severe pain or suffering in the process. As one OLC lawyer commented on the memo at the time: "The way it reads now makes you wonder whether this is just an anti-sadism statute."

Meanwhile, the memo's now-infamous definition of "severe pain" as necessarily "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death" not only relied on an irrelevant medical benefits statute for its definition, which the OPR report calls "illogical," but actually misquoted the language of that statute so as "to add further support to their 'aggressive' interpretation of the torture statute," the OPR report concludes. Ultimately, the definition could lead an interrogator to believe, the OPR found, "that pain could be inflicted as long as no injury resulted." It's the "leave no marks" theory of torture.

The list of twisted and inexplicable legal conclusions is long and impressive. In another instance, the lawyers relied on extremely narrow interpretations of the international Convention Against Torture proposed by the Reagan administration that the U.S. had never adopted. And they completely ignored far more relevant sources of law on torture, such as federal court cases interpreting the Torture Victims Protection Act, which found torture had occurred in situations far less severe than the brutal interrogation techniques being contemplated in these memos. In one case, for example, a federal court held that imprisonment for five days under bad conditions while being threatened with bodily harm, interrogated and held at gunpoint amounted to torture.

David Margolis, the Deputy Associate Attorney General ultimately overrode the recommendations of the ethics office to refer the lawyers to state bar associations for disciplinary proceedings, because he decided that the OLC's standards for referral were unclear. But the report of the investigators who actually read and analyzed the memos that authorized such brutal conduct as "waterboarding" (controlled drowning), slamming prisoners' heads repeatedly against a wall ("walling"), weeks of sleep deprivation, stress positions, and confinement in a cramped box with insects provides an astonishing look at how the lawyers tasked with providing objective legal advice to the White House on its most sensitive policies completely contorted ordinary logic and legal reasoning to reach the conclusions desired.

Justice Department lawyer Patrick Philbin at one point asked John Yoo why he included a wholly unsubstantiated section in one of the memos that concluded that the president of the United States, as commander in chief, can completely ignore any law he wanted - such as the prohibition against torture. Yoo said it was in the memo because "they want it in there" -- "they" presumably being whoever had requested the opinion. The memo never explained how the prohibition against torture could be construed in any reasonable way so as to conflict with the president's authority as commander in chief.

Whether John Yoo and Jay Bybee face professional sanctions (that's now up to their respective state bars) is far less important than whether we get to the bottom of what really happened at the Bush White House: who ordered these lawyers to come up with legal reasoning to justify torture? The OPR report suggests that David Addington, Chief of Staff to Vice President Dick Cheney, played a significant role. Who was he getting his orders from?

The OPR report is just another piece of the slowly-emerging puzzle of how the country plunged into what Dick Cheney has aptly called "the Dark Side," abandoning its most basic belief in human dignity and the rule of law to zealously combat terrorism in a way that's ultimately backfired; we're now less safe, and mired in a vicious and protracted war.

In concluding that Yoo and Bybee exercised "poor judgment" rather than "professional misconduct", Margolis emphasizes that "his decision should not be viewed as an endorsement of the legal work that underlies these memoranda," which he notes were "seriously flawed" and represent "an unfortunate chapter in the history of the Office of Legal Counsel." In Yoo's case, his conclusions represented a "loyalty to his own ideology and convictions" which "clouded his view of his obligations to his client" and led him to author opinions reflecting "extreme" views of executive power.

Yoo was among the very small group of lawyers entrusted to write these opinions for the White House because he was already known to hold these extreme opinions. That he ignored or contorted opposing views should not have come as a surprise to his employers; that's what he'd been doing all along as an academic.

It's clear from the report, too, that that's what Yoo was expected to do. As John Bellinger, the Bush administration's legal advisor to the State Department told OPR: "Yoo was 'under pretty significant pressure to come up with an answer that would justify [the program]' and that, over time, there was significant pressure on the Department to conclude that the program was legal and could be continued, even after changes in the law in 2005 and 2006."

Some of those memos were also being demanded under very tight time frames to justify particular interrogations.

So who asked Yoo and Bybee to write these memos, and what exactly were the instructions given? Were they pressured to reach a particular conclusion and provide a "golden shield" for illegal conduct that the White House had already chosen to undertake? The report points out that the OPR investigators were not able to access most of John Yoo's e-mail messages from the time period: "most of Yoo's e-mail records had been deleted and were not recoverable." Why did Yoo delete those messages, and what did they say?

Even Jack Goldsmith, the former head of the Office of Legal Counsel under President Bush, read the memos to ultimately function as a "blank check" for the military to engage in illegal and unauthorized interrogation techniques. If that's the case, then not only the lawyers but the officials who instructed them could be guilty of a criminal conspiracy.

The OPR report, then, hardly ends this chapter of history; it only begins to open the book. Before we can really reach the end of this sad saga and put it to rest, we need to know much more.






Obama's "Five Worst Nominees"

Over at the Mother Jones blog, Kate Sheppard, David Corn and Daniel Schulman compiled a list of "Obama's Five Worst Nominees." Treasury Secretary Timothy Geithner doesn't make the cut, which surprised me until I read the short bios of appointees who are likely to put corporate interests ahead of the public interest. In alphabetical order:

William Lynn, for whom the president made an exception to his policy on lobbyists in government. Lynn was the chief lobbyist for defense contractor Raytheon before becoming deputy secretary of defense in the Obama administration.

William Magwood, a "cheerleader for nuclear power" who has "worked for reactor maker Westinghouse and has run two firms that advise companies on nuclear projects." Obama nominated him for the Nuclear Regulatory Commission.

Scott O'Malia, who was apparently suggested by Senate minority leader Mitch McConnell. O'Malia "was a lobbyist for Mirant, an Enron-like energy-trading firm" and lobbied for weakening the Commodity Futures Trading Commission, to which Obama appointed him.

Joseph Pizarchik, who helped form policies in Pennsylvania to allow disposal of toxic coal ash in unlined pits. Obama named him director of the Office of Surface Mining Reclamation and Enforcement.

Islam Siddiqui, whom Obama appointed to be the chief agricultural negotiator for the U.S. trade representative. Jill Richardson has been on this case at La Vida Locavore; see here and here on why Siddiqui is the wrong person for this job.

I wouldn't suggest that this rogue's gallery is representative of Obama appointees, but it's depressing to see any of them in this administration.

In the good news column, Obama has decided to renominate Dawn Johnsen to head the Justice Department's Office of Legal Counsel, along with five other nominees who didn't receive a confirmation vote in the Senate last year.


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