Silver Linings (or, the Strange But True Fate of the Second (or was it the Third?) OLC Torture Memo)

Marty Lederman

Back in January I began posting on this blog about the law of interrogation and torture. What prompted me to do so was not an expertise or interest in that area of the law; nor was it even the infamous Office of Legal Counsel "Torture Memo" of August 1, 2002, which had been leaked to the public several months earlier. Instead, I was motivated to blog here because of a very promising development at the office in which I had previously worked—namely, the superseding OLC memo issued on December 30, 2004, eight days before my first post here.

In that first post, I tried to summarize the ways in which the second memo was a comprehensive, and thus fairly astonishing, repudiation of the first. Although I continued to have serious concerns with even the second memo, I emphasized that in issuing the latter memo, OLC had "taken a critically important step toward restoring the Office's reputation for providing rigorous and impartial legal advice: [T]he new memo's author—Acting Assistant Attorney General Daniel Levin—and other OLC attorneys who undoubtedly contributed to the careful and difficult work on the memo, deserve considerable praise (and, from those of us who revere the Office, sincere thanks for respecting many of the Office's best practices and traditions)." [Now is as good a time as any to repeat my initial disclosure: I worked as an Attorney-Advisor at OLC from 1994-2002, and I was still at the Office when it issued the 2002 Torture Opinion. I did not know anything about that Opinion, however—not even of its existence—until it became the subject of public debate in the summer of 2004, long after I had left OLC. Nothing in my posts here reflects any confidential information I may have learned while at OLC.]

Unfortunately, most of my subsequent torture-related posts here have been about more disturbing developments within, or documents emanating from, the Administration—disingenuous legal analysis; unprecedented assertions of Executive authority; dissembling, cicumlocution, and unwarranted secrecy on some of the most important public questions in the current war; etc. In order to devote more focused attention to teaching and ol'-fashioned dead-tree forms of writing, I've decided to take a break for a while from torture-related blogging. (I'll be happy to link to important documents as they're released; but I'll have to leave the parsing to others.)

Fortunately, a recent document disclosure provides an opportunity to break on a positive note. Those documents provide reason to think that perhaps OLC's institutional reversal began one year earlier than the December 2004 Levin torture memo—in December 2003, even prior to the revelation of the Abu Ghraib photos—when OLC repudiated yet another, even more far-reaching, memo in which the office had authorized legally dubious forms of interrogation. Moreover, the new documents suggest that the repudiation of OLC's conclusions might have been triggered by something as simple as a change in personnel at OLC—namely, the October 2003 confirmation of Jack Goldsmith to be the head of the office.

Some background is in order here, in order to explain why the December 2003 OLC reversal is so noteworthy:

As I've explained previously, the function of the August 2002 OLC memo was to authorize the CIA to engage in conduct approaching or even constituing torture. But then, in late 2002, the Defense Department also began using extreme forms of coercive interrogation at Guantanamo, even in the teeth of DoD attorneys' concerns that such techniques would violate the Uniform Code of Military Justice and other statutes and treaties. When this sharp deviation from longstanding DoD practice came to light among the Judge Advocate General Corps, it prompted a significant backlash among the JAGs; and in early 2003 a dispute developed within the DoD Working Group that Secretary Rumsfeld had convened to examine the legality of coercive interrogation of Al Qaeda and Taliban prisoners.

Recently released JAG memos reveal that the legal analysis being floated within the Working Group was crafted almost entirely by the Office of Legal Counsel at the Department of Justice—by Deputy Assistant Attorney General John Yoo, in particular—and it largely tracked the unorthodox analysis contained in the August 2002 OLC torture memo.

The OLC analysis alarmed the JAGs, who implored the Department to reject the OLC legal theories. However, on March 14, 2003, John Yoo delivered a memo to DoD General Counsel William Haynes, addressing the legal issues that had become the subject of the Pentagon debate. According to Senator Levin's account of the Church Report, once the March 14th Yoo memo was received, the DoD Working Group "was stopped from developing its own legal analysis and instead, was required to accept the legal analysis contained in [the March 14th] memorandum . . ., a memorandum [with] which the working group strongly disagreed. . . . This memo was presented, as [the Church] report indicates, to the working group as 'controlling authority' on all legal issues." The Yoo analysis became the legal basis for the Working Group's final Report, issued April 4, 2003.

On April 16, 2003, Secretary Rumsfeld issued a memorandum to govern interrogations at GTMO. Rumsfeld's memo did not go so far as to authorize all the techniques that had been approved as legal in the April 4th Working Goup Report. As is by now well-known, however, the extreme techniques used at GTMO somehow "migrated" to Iraq (with Major Geoffrey Miller) and to Afghanistan in 2003—where few, if any, of the safeguards described in Rumsfeld's memo were employed.

Some reports from Iraq and Afghanistan in 2003 suggest that military interrogators believed that their use of violent and coercive techniques was authorized and lawful. We don't yet have the full story of how they could have come to such an understanding, which would have been contrary to the training they had received pursuant to the Army Field Manual, and Uniform Code of Military Justice, and the Geneva Conventions.

However, one important clue emerged at a Senate hearing a couple of months ago, when DoD Deputy General Counsel Dell'Orto testified that the March 14, 2003 Yoo memo was a "binding legal opinion" that governed DoD policy after it was issued. The Pentagon and Department of Justice have refused to make that memo available, even to the Senate. But from what we can glean from the JAG memos and elsewhere, it appears that OLC gave the green light to the military to use techniques in violation of the UCMJ, the federal assault statute, and possibly even the federal torture statute—most likely on the theory, expressed in the August 2002 torture memo, that the President's Commander-in-Chief authority gives him the power to ignore such laws to the extent they restrict the President's judgment concerning "what methods to use to best prevail against the enemy."

Curiously, however, Dell'Orto also testified that "we were asked not to rely upon [Yoo's March 2003 memo] going back to December of 2003 and have not relied upon it since." (He further stated that the Yoo memo was formally "withdrawn as an operational document" in February 2005.)

So, something apparently happened in December 2003 that undermined DoD's reliance on the March 2003 Yoo memo and that, as far as we know, abruptly halted the abusive DoD interrogation practices that had been in place for the previous 13 or so months. But what?

We now have some idea—a recently released OLC letter indicates that OLC itself withdrew its support for the Yoo memo not ten months after it was issued.

The Department of Defense recently provided to the Senate Armed Services Committee a February 4, 2005 letter to DoD General Counsel Haynes from Daniel Levin, then the Acting Assistant Attorney General for OLC. That letter is very notable in at least two respects:

First, Levin indicates that from March until December of 2003, "policies" (presumably DoD policies) were "based on the substance" of the March 2003 Yoo memo. What were those "policies"? [Update: Well, perhaps we now have a clue. What would possibly have given military intelligence interrogators, and the CIA, the idea that they (and the troops following their lead] could regularly use violence to soften up Iraqi detainees, and that they could abandon the Geneva Convention norms that they had been trained to apply? What possible explanation is there for this curt and obscure response of the Secretary of the Army to a direct complaint by an officer in the 82d Airborne that the troops didn't have clear guidance on prisoner treatment?: "Well, we realized that that was a problem but you are a little bit behind the times. We've solved that matter."]

Second, Levin writes that in December 2003, new OLC Assistant Attorney General Jack Goldsmith advised Haynes that the March 2003 memo was "under review" by OLC and "should not be relied upon for any purpose." Levin's understanding was that, subsequent to Goldsmith's disavowal of the March 14th memo, "policies based on the substance of the [Yoo] Memorandum have been reviewed and, as appropriate, modified to exclude such reliance."

Levin further notes that OLC "has formally withdrawn the March 2003 Memorandum," which has "been superseded by subsequent legal analysis." In particular, Levin writes that the July 14, 2004 testimony of OLC Deputy AAG Patrick Philbin before the House Permanent Select Committee on Intelligence "reflects a determination by the Department of Justice that the 24 techniques approved by the Secretary of Defense [in his April 16, 2003 memo] are lawful when used in accordance with the limitations and safeguards specified by the Secretary." (Emphasis added.) [NOTE: The Philbin testimony was, until recently, publicly available on the House Intelligence Committee's website. Mysteriously, that testimony—together with the testimony of Stephen Cambone, Under Secretary of Defense for Intelligence, and FBI General Counsel Valerie Caproni—has disappeared from that site, and from Westlaw, as well. Here is the Cambone testimony; and here is the Caproni testimony.] The 2004 Philbin testimony acknowledges the various legal constraints that limit coercive interrogation in the military, and—in contrast to the DoD Working Group Report—does not suggest that they may be ignored or evaded by resort to the Commander-in-Chief Clause, or defenses such as "necessity." Its defense of the 24 Rumsfeld-approved techniques, while contestable in some particulars, is fairly straightforward and not terribly alarming.

On March 17, 2005, in response to Levin's February 2005 memo, DoD General Counsel Haynes sent this memo to the JAG Corps, which was reported in July by Josh White of the Washington Post. Haynes's memo states that "in light of the Justice Department's modification of its earlier legal analysis" (a modification that had occurred 15 months previously), the legal portion of the April 2003 Working Group Report "does not reflect now-settled executive branch views of the relevant law." Haynes continued: "I determine that the Report of the Working Group on Detainee Interrogations is to be considered a historical document with no standing in policy, practice, or law to guide any activity of the Department of Defense. This determination should be disseminated throughout the the Department of Defense, as appropriate."

The Haynes memo also refers to two January 2005 JAG memos—not yet publicly available—in which the JAGs proposed a new department-wide interrogation policy; Haynes referred to that JAG-proposed policy as an "excellent starting point for discussion" on this "profoundly important issue."

* * * *

In sum, the March 14, 2003 memo from OLC Deputy Assistant Attorney General John Yoo to DoD General Counsel William (Jim) Haynes effectively ended the heated debate within the DoD Working Group about military interrogation policy; silenced the JAGs' protests; established the legal template for the April 2003 DoD Working Group Report; and apparently served as the basis for certain DoD interrogation "policies" from March until December of 2003.

But in December 2003, the newly confirmed Assistant Attorney General for OLC, Jack Goldsmith, informed DoD that OLC would no longer stand behind that memo, a disavowal that resulted in a change of DoD policies and OLC's eventual formal "withdrawal" of the memo.

Why did OLC reverse course?

It is not unprecedented for OLC to reverse one of its own prior Opinions. In the vast majority of cases, such reversals occur after a change in Administrations, where the new Assistant Attorney General (or the new President) has a different legal understanding from that of his or her predecessor. (For prominent recent examples, see footnote 53 of this Opinion and footnote 13 of this Opinion.) But there is little historical precedent for something such as the December 2004 "replacement" opinion on the federal torture statute—an opinion that, as I have previously explained, subtly but thoroughly eviscerated numerous important aspects of the notorious August 2002 torture memo issued by the same Administration. Nevertheless, although the December 2004 memo was unprecedented, it was not entirely unexpected, because the 2002 torture memo had been subject to such withering public criticism when it was leaked in the summer of 2004 (and Judge Gonzales's confirmation hearings to be Attorney General were to be convened a few days later).

But how to explain Goldsmith's December 2003 repudiation of a very important OLC Opinion issued not ten months previously? It is difficult to overstate how unusual the Goldsmith reversal was. Consider the following:

1. In OLC, as in other legal institutions (such as the Supreme Court), there is an understandably strong (albeit rebuttable) presumption in favor of adhering to prior legal advice—a form of stare decisis, if you will.

2. The ink was barely dry on the March 2003 Yoo memo.

3. Presumably, OLC had not lightly come to the conclusions in the Yoo memo, given that those views had been vigorously opposed by the JAGs and others. OLC put a good deal of its institutional authority and reputation on the line in March 2003; accordingly, there would have been a substantial incentive for OLC to stand behind its legal conclusions.

4. The Senate had just recently confirmed Jack Goldsmith to be Assistant Attorney General (on October 3, 2003)—he had been at the Office of Legal Counsel for just two months.

5. Goldsmith had come to OLC from the Department of Defense, where he was Special Counsel to the recipient of the Yoo memo, General Counsel William Haynes.

6. When he arrived at OLC, many observers might have been quite surprised (justifiably or not) to find Goldsmith at odds with John Yoo on important legal questions relating to the war on terror. Indeed, some critics had branded Goldsmith and Yoo as two of the principal legal academics among the so-called "New Sovereigntists"—a label given to recent conservative legal scholars who have been appreciably more skeptical than traditional international academics of the extent to which treaties and international law should be understood as sources of binding U.S. domestic law. Thus, for example, upon Goldsmith's confirmation Senator Leahy expressed his "concern[] about [Goldsmith's] positions as they relate to the international protection of human rights, the engagement of the United States in holding accountable those who commit crimes against humanity, the administration's use of military tribunals and, more broadly, our Nation's place in the global community." 149 Cong. Rec. S12474.

7. The forms of coercive interrogation that the Yoo memo authorized were perceived by some high-ranking officials in the Pentagon as necessary in order to elicit critical intelligence information, particularly from Al Qaeda and Taliban detainees who were cognizant of, and capable of withstanding, the traditional Army Field Manual interrogation techniques.

8. The August 2002 OLC torture memo—which contained much of the analysis that apparently appeared in the March 2003 memo—had been vetted by a number of high-level officials, including lawyers at the National Security Council, the White House counsel's office and Vice President Cheney's office. According to the Washington Post story linked above, those officials included Tim Flanigan, a former head of OLC and then-Deputy White House Counsel (and currently the nominee to be Deputy Attorney General), and David Addington, the Vice President's counsel and an important figure on all issues related to Executive authority in this Administration; Addington "was particularly concerned, sources said, that the opinion include a clear-cut section on the president's authority" to ignore statutory restrictions.

In light of this, it is fair to assume that Goldsmith could expect to run into fierce resistence from Addington, and perhaps other Administration officials, if he decided to repudiate the March 2003 memo.

9. The Yoo memo appears to have had a significant impact on DoD policy and practice. It formed the basis of the April 2003 Working Group Report (including, presumably, those portions of the Report that authorized the use of techniques that would violate the UCMJ and other statutes), and, according to the recently disclosed Levin letter to Haynes, it apparently served as the basis for certain DoD interrogation "policies" from March until December of 2003. Its repudiation, therefore, would mean removing the legal authorization for policies that had already been approved and probably implemented.

10. To the extent anyone in DoD (or elsewhere) relied on the Yoo memo as justification for engaging in conduct that would otherwise have been unlawful, Goldsmith's repudiation of that memo would leave such persons in a legal limbo—perhaps vulnerable to prosecution. (This is a complicated legal issue. In general, whether due process requires that unlawful conduct be excused where the wrongdoer has relied on official legal advice depends on whether that reliance was "reasonable." The Goldsmith repudiation might have an impact on the determination of whether reliance on the Yoo analysis was "reasonable.")

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All of which is to say that there were very significant disincentives for Jack Goldsmith to repudiate the Yoo memo. And yet he did so, very early in his tenure at OLC, and in a way that was likely to displease some important clients within the Administration. What might have caused Goldsmith to withdraw OLC's approval of the Yoo memo? Unless and until we know more from the principal players, and until we see the Yoo memo itself, we will not know for sure.

But two possibilities come to mind.

The first is that the Department of Justice had gotten wind of some of the abuses in interrogations that had occurred in Cuba, Iraq and Afghanistan, had recognized how rapidly its March legal conclusions had generated atrocities, and wished to limit the damage. Perhaps . . . but I'm skeptical. It was not yet apparent, for instance, that there would be a public scandal associated with Abu Ghraib. Although presumably certain officials within the Department of Defense knew of the brutal murder of Manadel al-Jamadi in early November 2003, the Pentagon did not receive the Abu Ghraib photos until mid-January, 2004; and I'm not aware of any indication that DOJ was aware of the scandal until some time after that. Similarly, perhaps some Defense officials knew of the CIA/Army/Scorpions murder of Iraqi Maj. Gen. Abed Hamed Mowhoush on November 26th. But even if news of such atrocities filtered down to DOJ, it is hard to imagine that the interrogators in those cases asserted reliance on the Yoo memo, and even harder to imagine that any repudiation of that memo would be viewed as a logical response to the incidents—particularly if OLC continued to stand by the legal analysis in that memo.

Second, and more likely, is that the legal analysis in the Yoo memo was simply so far outside the realm of traditional OLC norms that Goldsmith—when he reviewed the memo carefully—felt he had little choice but to repudiate it. (That conclusion is certainly consistent with the impression one gets reading the December 2004 Levin memo on torture—a memo to which Jack Goldsmith apparently contributed before he left OLC (according to a Wall Street Journal story by Jess Bravin back in December), and that substantially repudiated the August 2002 torture memo.) And if this is the explanation for the reversal, it could mean that OLC's institutional role with respect to the interrogation and torture debate may have been quite different during Goldsmith's short tenure in office from October 2003 until the late summer of 2004 than it had been before he took office.

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One final question: Where is the March 14, 2003 Memo? I realize I'm a bit of a broken record on this one. But we can't possibly understand the whole story here without seeing that memo. Senator Levin spent months asking DoD for the March 14th memo. Finally, DoD informed the Senator that whether to release the memo is not a DoD decision, and that the request should be put to DOJ. Levin turned to DOJ—but I understand that DOJ has recently refused to provide the memo, on the ground that "non-public OLC opinions are not disclosed outside the Executive branch."

This sort of non-response shows remarkable contempt for the Senate. It is, of course, question-begging: Preventing disclsoure outside the Executive Branch is what it means for an OLC Opinion to be "non-public." The fact that the memo has thus far been withheld is not a reason for continuing to withhold it. The Administration has now made available to the public the DoD Working Group Report that was predicated on the March 14th memo; the JAG memos taking issue with OLC's analysis; a memo noting Goldsmith's December 2003 repudiation of the Yoo memo; OLC's December 2004 torture memo; the Philbin testimony; etc. There is no apparent excuse—other than seeking to avoid embarrasssment—for the Administration's refusal to disclose the March 14th memo. The nominations of William Haynes and Tim Flanigan are pending before the Senate (to be a judge on the U.S. Court of Appeals, and to be Deputy Attorney General, respectively), as is the nomination of a new head of OLC (Steven Bradbury). If Senators (including Senate Republicans) were at all committed to preserving the Senate's institutional prerogatives or the separation of powers, they would use the occasion of these nominations to insist on receiving the March 14th memo—and any other OLC memos (such as the November 2001 memo on military commissions) that formed the legal basis for governmental conduct in the war on terror (redacted, of course, to remove any properly classified information).

The public ought to be able to understand, and critique, the legal basis for the most important actions of state. In the absence of such transparency, there is little incentive for OLC not to adopt highly unorthodox and questionable legal views; the prospect of public critique invariably tests, and sharpens, legal analysis in a manner that is not possible if only a small coterie of like-minded lawyers will ever review the opinions. (See also my post here.)
Posted 6:08 PM by Marty Lederman [link]