Sen. Jay Rockefeller (D-WV) of the Senate Intelligence committee has just released a declassified narrative (pdf) of the OLC's development of its opinions on torture.
The Atlantic's Marc Ambinder has already picked out a key excerpt, that sheds some light on just who in the Bush administration helped devise and approve the torture policies:
As we noted, Philip Zelikow, a former top lawyer to Condi Rice at the State Department, yesterday wrote that the White House tried to destroy all copies of a memo he authored, which took issue with the legal opinions laid out in the infamous OLC torture memos.
Today, Zelikow appeared on MSNBC to flesh out that story. Among other things, he reveals that the Bushies said his memo was "inconvenient to have around." (Would it have been too much for Andrea Mitchell to have followed up by asking him who, exactly, said that?)
Watch:
Jonathan Turley, the media-friendly George Washington Law School professor, who's an outspoken advocate of curbing executive power, gave a bravura performance on MSNBC's Countdown last night, on the subject of possible torture prosecutions.
Arguing that investigations aren't just necessary but long overdue, Turley made two important points that have been getting a bit lost in the rapid-fire debate lately.
Sen. Russ Feingold (D-WI) is the latest to call for the impeachment of Judge Jay Bybee, in response to the release of those torture memos last week.
Bybee wrote one of the memos in 2002, when he served in the Justice Department's Office of Special Counsel.
Here's Feingold's statement:
The just released OLC memos, including the 2002 memo authored by Jay Bybee, are a disgrace. The idea that one of the architects of this perversion of the law is now sitting on the federal bench is very troubling. The memos offer some of the most explicit evidence yet that Mr. Bybee and others authorized torture and they suggest that grounds for impeachment can be made. Clearly, the Justice Department has the responsibility to investigate this matter further. As a Senator, I would be a juror in any impeachment trial so I don't want to reach a conclusion until all the evidence is before me.
The White House press corps gave Robert Gibbs a hard time today about President Obama's comments this morning that left the door open to prosecutions of Bush officials for torture.
It's true that the president's comments go further than anything he'd said before, and could suggest that the White House is tacking this way and that on a crucial subject. That impression is strengthened by the fact that the White House has now had to walk back Rahm Emanuel's comments from Sunday that the Bushies wouldn't be prosecuted.
Late Update: Looks like The Huffington Post's Sam Stein had the same response to the briefing that we did.
Rep. John Conyers, who chairs the House Judiciary committee, has announced that he plans to hold hearings into the Bush-era OLC memos released last week.
Despite his pledge to hold hearings in his own committee, Conyers said he agrees with President Obama's statement that he favors a probe conducted by a bipartisan commission, rather than solely by a congressional committee.
Think Progress, the blog of the Center for American Progress, is circulating an online petition calling on Congress to impeach Jay Bybee, who, while at the Justice Department's Office of Legal Counsel, wrote one of the torture memos released last week. Bybee is currently a federal judge.
CAP is led by John Podesta, a close White House ally who helped run Barack Obama's transition.
Think Progress joins Rep. Jan Schakowsky, Rep. Jerry Nadler, the New York Times, and the Center for Constitutional Rights in calling for Bybee's impeachment.
Late Update: Sen. Pat Leahy, who chairs the Judiciary committee, has called on Bybee to step down from the bench, though he doesn't seem to have mentioned anything about impeachment.
We didn't have the chance to get to this earlier but CQ's Jeff Stein went on MSNBC's Countdown last night to talk about his now-famous report on Jane Harman and AIPAC*.
Among other things, Stein said that there are "several people who have known this for some time."
And interestingly, he adds that, according to his sources,the investigation into Harman that Time first reported on back in 2006 "never got started" because it was quashed by then-AG Alberto Gonzales.
The whole segment is worth watching...
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* This sentence has been corrected from an earlier version that wrongly said Stein had appeared on Hardball.
President Obama is leaving the door open for prosecutions of Bush DOJ officials who provided the legal rationale to support torture policies.
In comments to reporters this morning, Obama said he didn't support prosecuting CIA officers who were carrying out the policy. But:
On Sunday, White House chief of staff Rahm Emanuel went on ABC's This Week With George Stephanopoulos and clearly declared that the Obama administration would not prosecute the Bushies who "devised" torture policies.
That seemed to go further than anything the administration had said before. So yesterday we called the White House to get a more formal statement on the issue. And when we didn't hear back, we got to wondering: had Rahm been freelancing, and gotten out ahead of White House policy?
Jake Tapper of ABC News asked White House Press Secretary Robert Gibbs today about a subject we've been writing about lately -- the administration's several invocations of the state secrets privilege, despite Barack Obama's criticism, as a presidential candidate last year, of President Bush's use of the privilege.
In response, Gibbs talked about the need to balance transparency with the need to protect national security.
Watch:
For all the (justified) clamor over the Bush administration's torture memos that were released yesterday, there's been surprisingly little attention paid to the two authors of those documents.
As officials in the department's Office of Legal Counsel Jay Bybee and Steven Bradbury authored the four memos. The first was written in 2002 by Bybee, and the latter three in 2005 by Bradbury. So: who are Bybee and Bradbury?
A British professor whose research on sleep was cited in one of the just-released Bush administration torture memos has expressed outrage that his work was used to justify extreme sleep deprivation, including keeping subjects awake for up to 11 days.
In an interview with TPMmuckraker, James Horne, a leading authority in the field of sleep research, said he was "surprised and saddened" to see Bush officials "misrepresent" his research to argue that such sleep deprivation does not cause serious harm to its subjects.
From one of the May 2005 OLC memos by Steven Bradbury:
Nudity. This technique is used to cause psychological discomfort, particularly if a detainee, for cultural or other reasons, is especially modest ... [I]nterrogators can exploit the detainee's fear of being seen naked. In addition, female officers involved in the interrogation process may see the detainees naked; and for purposes of our analysis, we will assume that detainees subjected to nudity as an interrogation technique are aware that they may be seen naked by female.
Here's the official Bush legal rationale for waterboarding -- which Eric Holder recently confirmed was torture -- from that 2002 memo by Jay Bybee.
Finally, you would like to use a technique called the "waterboard." In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual's feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of "suffocation and incipient panic," i.e., the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. the sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout. You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is not in fact drowning. You have also orally informed us that it is likely that this procedure would not last more than twenty minutes in any one application.As we understand it, when the waterboard is used, the subject's body responds as if the subject were drowning -- even though the subject may be well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. as we explained in the Section 2340A Memorandum, "pain and suffering" as used in Section 2340 is best understood as a single concept, not distinct concepts of "pain" as distinguished from "suffering".... The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view, inflict "severe pain and suffering". Even if one were to parse the stature more "finely" to attempt to treat suffering as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.
Of course, thanks to today's announcement by DOJ, CIA officers can't be prosecuted for this.
Here's a taste of the Bush administration's legal rationale, exemplified in one excerpt from the 2002 OLC memo written by Assistant Attorney General Jay Bybee, about the interrogation of Abu Zubaydah, a high-ranking al Qaeda member:
Sleep deprivation may be used. You have indicated that your purpose in using this technique is to reduce the individual's ability to think on his feet and, through the discomfort associated with lack of sleep, to motivate him to cooperate. The effect of such sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that, in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation. Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction. You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted. (our itals)
If you have time, comb through the memos yourselves (they're here) and let us know what else you find.
Yesterday we told you about the Obama Justice Department's invocation of a sweeping state secrets privilege in a warrantless wiretapping case. But that may not be the only area in which the new administration's war on terror tactics recall the worst excesses of the Bush years.
Last year, the Supreme Court ruled that detainees at Guantanamo had the right to appeal their detentions in federal courts. But since then, only a few cases have been completed. And in an interview with TPMmuckraker, David Cynamon -- a lawyer for four Kuwaiti Gitmo detainees who are bringing habeas corpus claims against the government -- said that the Justice Department has been consistently dragging its heels in the case, denying detainees their basic due process rights and furthering what he called the "abandonment of the rule of law."
We told you yesterday about the developing consensus in opposition to the Obama administration's state secrets claim in the Jewel v. NSA case, in which the government is being sued over the warrantless wiretapping program.
Here's the Justice Department's statement on the matter:
The administration recognizes that invoking the states secret privilege is a significant step that should be taken only when absolutely necessary. After careful consideration by senior intelligence and Department of Justice officials, it was clear that pursuing this case could unavoidably put at risk the disclosure of sensitive information that would harm national security.An examination by the Director of National Intelligence and an internal review team established by the Attorney General determined that attempting to address the allegations in this case could require the disclosure of intelligence sources and methods that are used in a lawful manner to protect national security. The administration cannot risk the disclosure of information that could cause such exceptional harm to national security.
While the assertion of states secrets privilege is necessary to protect national security, the intelligence community's surveillance activities are designed and executed to comply fully with the laws protecting the privacy and civil liberties of Americans. There is a robust oversight system to ensure this compliance.
A great catch from our old friend Greg Sargent over at the Plum Line...
Barack Obama's campaign website still cites the fact that "the Bush administration has ignored public disclosure rules and has invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of civil court." The site declares: "Secrecy Dominates Government Actions."
Is the Obama administration mimicking its predecessor on issues of secrecy and the war on terror?
During the presidential campaign, Obama criticized Bush for being too quick to invoke the state secrets claim. But last Friday, his Justice Department filed a motion in a warrantless wiretapping lawsuit, brought by the digital-rights group EFF. And the Obama-ites took a page out of the Bush DOJ's playbook by demanding that the suit, Jewel v. NSA, be dismissed entirely under the state secrets privilege, arguing that allowing it go forward would jeopardize national security.
The journalist Mark Danner has obtained the entire report on torture by the International Committee of the Red Cross, which he published excerpts from last month. The report has been posted on the website of the New York Review of Books. Danner's new writeup of it is here.
The major new revelation concerns the active participation of medical officers in the interrogation of terrorism suspects in CIA secret prisons. The report, written in 2007, concludes that these officers committed gross violations of medical ethics, and in some cases participated in torture. The report called the CIA program "inhuman."
Is the Obama administration aping its predecessor by taking a dangerously broad view of state secrecy, enabling them to avoid revealing information about warrantless wiretaps and other controversial tactics in the war on terror?
The Washington Post raises the question today, but doesn't provide much of an answer.
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