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!

Lindsey Graham v. the U.S. Military

Senator Lindsey Graham (R-S.C.) likes to tout his experience as a former military lawyer. Graham apparently thinks this makes him sound more convincing when he goes around advocating military trials for all suspected terrorists, as he's been doing lately. Graham's now trying to get that idea signed into law in a bill he's introduced in the Senate. A similar provision is likely headed to a vote today in the House of Representatives.

The odd thing is, in doing this, Graham is going up against a huge and rapidly-growing number of military leaders -- including Defense Secretary Robert Gates himself -- who say that forcing the government to try suspected terrorists in military commissions is a really bad idea.

In October, Gates joined Attorney General Eric Holder in a letter to Senators urging rejection of the Graham amendment. Noting that the Pentagon and Justice Department now work jointly to evaluate every terrorism case, they wrote that "it would be unwise, and would set a dangerous precedent, for Congress to restrict the discretion of either department to fund particular prosecutions."

As the defense secretary put it: "We must be in a position to use every lawful instrument of national power -- including both courts and military commissions -- to ensure that terrorists are brought to justice and can no longer threaten American lives."

Then on Sunday, former Secretary of State General Colin Powell, who served in both the Bush I and Bush II administrations, made the point that civilian federal courts have been far more effective than any military commissions.

"In eight years the military commissions have put three people on trial," said Powell. "Two of them served relatively short sentences and are free. One guy is in jail." Meanwhile, the civilian court system "has put dozens of terrorists in jail and they're fully capable of doing it. So the suggestion that somehow a military commission is the way to go isn't born out by the history of the military commissions."

In an apparent reference to Graham, Powell added:

"I think a lot of people think, 'just give them to the military and the military will hammer them.' Well, guess what? Officers in the military are obliged to follow the Constitution. Military lawyers are obliged under their oath to give the best possible defense to the defendant no matter whether he's a terrorist or not. And so you didn't get out of the military commissions what a lot of people thought at the beginning you would get and a lot of us did not think it was a good idea in the beginning."

Even the former chief judge of the Army's Court of Criminal Appeals in the JAG Corps disagrees with Lindsey Graham, despite Graham's former JAG credentials.

Military investigators know how to get information on an actual battlefield, Retired Brigadier General James P. Cullen told the New York Times the other day. But prosecutors and FBI agents are better able to link intelligence to track down more terrorism suspects. They're also better at winning convictions.

"You've had about 800 cases that were supposed to be run through the military commissions in Guantanamo, and there have only been three convictions," said Cullen. "You have three-eighths of 1 percent return on military commissions, versus 90 percent plus when they are tried in the federal court."

Okay, but what about all those lawyers who Graham says will tell their clients not to talk? As Graham put it recently: "Is reading Miranda rights to terrorists any way to fight a war?"

Actually, retired 4-star General Colin Powell doesn't have a problem with that.

"I have no problem with them being tried here in the United States," said Powell. "We have two million people in jail. They all have lawyers. They all went before the court of law and they all got hammered. We have got three hundred terrorists who have been put in jail not by a military commission but by a regular court system."

As for Khalid Sheikh Mohammed, who Graham seems to think has special powers that will be unleashed against Americans as soon as he enters a federal courthouse, Powell said: "I have no problem with him being tried in our federal system here in the United States."

Here's what four other retired generals had to say about Lindsey Graham's idea back in September:

"We believe that it would be wrong to treat the leaders of al Qaeda as warriors deserving of military trials," said Retired Rear Admirals Don Guter and John Hutson, and Retired Brigadier Generals David Brahms and James Cullen in a letter to President Obama.

"America's well established system of civilian justice is not just well equipped to handle these cases, it is far better suited to the task of discrediting and defeating the terrorist enemy we face. When the planners of 9/11, including Khalid Sheikh Mohammed, are finally brought to justice, it will be an extraordinarily important moment in the struggle against terrorism. If these trials are held before civilian judges and juries, it will highlight the strength and legitimacy of our system of justice, and at long last focus the world's attention where it belongs: on the crimes these men committed against us, rather than on how we are treating them."

Even the new-and-improved military commissions will not be able to achieve that, the military men warned. Not only are they still tainted with the stigma of Gitmo, but their questionable legitimacy will become a tactical advantage for terror suspects.

"Defendants before military commissions will have the advantage of being able to challenge the legitimacy of the system in which they are being tried, instead of simply having to face the evidence against them." That will further delay justice: "Particularly in the most prominent terrorism cases, our nation cannot afford more legal controversy and doubt; and we will not have another chance to get this right."

Even if the military commissions were flawless, military leaders claim that giving terrorists warrior status only bolsters their cause.

"Like virtually all terrorists throughout history, al Qaeda members want to be seen as soldiers, not as criminals. That warrior mystique helps them recruit more misguided young men to their ranks, and justifies, in their own minds, the murder of their enemies. This is why al Qaeda has always described its crimes as acts of 'war.' "

Counter-terrorism advisor John Brennan has said exactly the same thing.

And in January, a group of 33 different retired military leaders, with experience in every war the U.S. has waged since 1941, came together to urge President Obama not to treat terrorists as warriors deserving of special military tribunals.

"Some have suggested that suspects like Umar Farouk Abdulmutallab, the man accused of attempting to bomb Flight 253, do not deserve the protection provided in our federal courts and should instead be subject to military tribunals," they wrote. "On the contrary, we believe that Abdulmutallab and his ilk should be treated as the would-be mass murderers they are. To bestow on him and others like him the designation of "enemy combatant" reinforces their claims to be jihadist warriors. They are not warriors. There is neither nobility nor ideological justification in murdering innocent civilians." As for the claim that they'll get a high-profile platform to spew their hateful ideologies, the military leaders wrote: "On the contrary, we are confident that these trials will showcase America at its best, a nation of laws."

So the overwhelming majority of actual military leaders, with hundreds of years of military experience behind them, all disagree with Lindsey Graham.

I know Senator Graham spent six and a half years as an Air Force lawyer, but he's never prosecuted a single terrorist. After all, that's not what military lawyers do. For the most part, they prosecute and defend U.S. military personnel for mostly minor crimes.

So who should we believe?

I think Judge William Young, the federal court judge who sentenced "shoe bomber" Richard Reid to life in prison without parole after the Bush administration won his conviction in a civilian trial, put it best when he said to Reid at his sentencing:

"You are not an enemy combatant.


"You are a terrorist.

"You are not a soldier in any war.

"You are a terrorist.

"To give you that reference, to call you a soldier, gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or if you think you are a soldier.

"You are not--you are a terrorist.

"And we do not negotiate with terrorists.

"We do not meet with terrorists.

"We do not sign documents with terrorists.

"We hunt them down one by one and bring them to justice.

"So war talk is way out of line in this court. You are a big fellow. But you are not that big."

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.

 

 

 

 

 

Lindsey Graham, Meet Alberto Gonzales

Earlier today, former Attorney General John Ashcroft admitted at a Conservative Political Action Conference that civilian trials for terrorists have "use and utility."

Sam Stein on Huffington Post points out that the statement "throws a wrench in Republican talking points" which lately have dismissed the civilian justice system as irrelevant to the war on terror.

But Ashcroft is hardly the first Republican to acknowledge the civilian courts' important role. In fact, there may be no better response to Republican South Carolina Senator Lindsey Graham's latest campaign to militarize terrorism investigations and prosecutions than the comprehensive White Paper on U.S. Counter-terrorism produced by the Justice Department - under George W. Bush.

Senator Graham, meet Alberto Gonzales, the attorney general who signed off on that 2006 Counterterrorism White Paper.

The 2006 White Paper is a 68-page document that extols "the impressive success of the Department of Justice in the war on terrorism," and documents "how the criminal justice system operates effectively as an element of national power."

In fact, the document effectively rips apart every one of Senator Graham's recent argumentssupporting his proposed legislation to require Khalid Sheikh Mohammed and his alleged co-conspirators in military commissions. It also undermines his even more expansive statements since the failed Christmas Day bombing suggesting that all terrorism cases from now on should be handled by the CIA and the military rather than the criminal justice system.

"Civilian trials, which the Obama Administration has proposed, will be unnecessarily dangerous, legally messy, confusing to our own troops who fight and capture terrorists on the battlefield, and very expensive," Graham said recently, promoting his proposed legislation.

Oddly, not once during the Bush administration's eight years did Lindsey Graham complain about the successful prosecutions of accused terrorists in federal courts. Hundreds of them.

According to the 2006 Department of Justice, the criminal justice system has been so successful - it reports winning more than 300 convictions of terrorists since 2001 - by relying on its vast power to conduct transnational investigations, and on a broad range of criminal statutes, such as those outlawing "material support" to terrorists and broadly defining "weapons of mass destruction." Meanwhile, DOJ has aggressively used charges of "immigration fraud" and "false statement offenses" to arrest and imprison suspected terrorists before they can commit a terrorist act.

So what about Senator Graham's claims that terrorism suspects don't talk in civilian prosecutions?

Actually, "our successful prosecutions have produced cooperating defendants who have, in turn, provided intelligence information to investigators, prosecutors and national security officials, leading to further investigation, disruption and prosecution," says the 2006 report.

Moreover, "cooperation with our foreign partners has led to counterterrorism successes in foreign courts as well as in our own..."

Then there's Graham's concern that civilian prosecutions will inevitably lead to the release of classified evidence.

Here's the Bush administration's answer: "Criminal cases that utilize classified intelligence information are a challenge, but the Classified Information Procedures Act, combined with strategic charging decisions, enable us to appropriately handle this intelligence in criminal cases while protecting both the classified information and defendants' due process rights," the 2006 paper reads.

True, the 2006 paper acknowledges that some cases have presented "unique questions, such as how to deal with evidence purportedly available from detainees abroad, how to balance enemy combatant status with our ability to bring criminal charges, and how to authenticate evidence collected by a foreign intelligence service without disclosing that services' sensitive sources and methods." But the government's focus was always on making better use of the criminal justice system's tools and powers. At no time did the government consider abandoning it altogether.

"We aggressively investigate and prosecute in order to protect our national security, protect our cherished rights, and vindicate the rights of victims of terrorist activity and terrorist acts," the paper concludes.

The military commissions simply cannot do the same thing. For one thing, this new, untested system doesn't have prosecutors with decades of experience trying terrorism cases, as Clarence Page pointed out at the Chicago Tribune the other day.

That may be one reason the track record on prosecuting Jihadist terrorists is far stronger in federal court - which has prosecuted 195 since September 11, 2001 -- than in the military commissions, which have prosecuted only three. And two of those have already been released.

John Walker Lindh, for example, the American Muslim convert arrested in Afghanistan, was sentenced to 20 years in prison in a federal court. David Hicks, on the other hand, an Australian convert also fighting for the Taliban, was sentenced to just nine months plus time served by a military commission.

Aside from which court is harsher, on a practical level, military commissions just don't have the same breadth of law to rely on. Created by the Military Commissions Act of 2006, the court's jurisdiction is only over the crimes listed in that law, and over traditional crimes of war. Because crimes like "material support for terrorism," "conspiracy," and even the killing of enemy soldiers have never traditionally been considered war crimes, though, a military commission can't legitimately prosecute any of those crimes that occurred before the MCA took effect. That's a huge limitation - particularly if we're talking about prosecuting the September 11 suspects.

Lindsey Graham apparently thinks that trotting out "military commissions" as the answer to terrorism is going to make him look like a tough guy - "military" just sounds tougher than "civilian."

Recent reports suggest that the Obama administration is considering moving the 9/11 trial, apparently at the urging of Lindsey Graham. But surely the administration doesn't buy his arguments.

Will the fact that even the Bush administration under Dick Cheney was saying the same thing about the critical role of federal courts in fighting terrorism make any difference? I can't believe I'm touting the Alberto Gonzales Justice Department, but on this point, it was right. Someone send that White Paper to Lindsey Graham.

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