an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Office of Legal Counsel, responding to a Freedom of Information Act request, has now released a treasure trove of new memoranda discussing the Bush Administration's war on terror policies. Although the basic details of much of this were already known, the actual memos themselves are quite interesting. The highlights include memos by Jack Goldsmith telling the CIA not to do anymore waterboarding in May of 2004, and a memo by his successor at the OLC, Daniel Levin, telling the CIA they can go ahead and do it on August 6, 2004. There are also two memoranda from John Yoo arguing for the President's right to use military force at any time without congressional approval and offering CIA interrogators a good faith defense to torture. On October 21st, 2002, five days after Congress authorization of the use of military force against Iraq, John Yoo explains why it was legally irrelevant that Congress authorized the Iraq War, noting that the President could have attacked Iraq without anyone's permission. Delightfully, Yoo cites President Clinton's use of force in Bosnia, which Yoo himselfhad questioned when the Republicans were out of power. But perhaps being in power gave him a different perspective.
Yoo sums up his argument this way: "There is no expression in the Constitution of any requirement that the President seek authorization from Congress prior to using military force. There is certainly nothing in the text of the Constitution that explicitly requires Congress to consent before the President may exercise his authority as Chief Executive and Commander in Chief to command U.S. military forces." I'm glad we straightened that out.
Next, we have John Yoo, on July 13, 2002, giving us the shorter version of the August 1, 2002 Torture Memo in a brief note to John Rizzo, the CIA's acting general counsel. The item of note here is Yoo's conclusion that there is a good faith defense to the specific intent requirement of the federal anti-torture statute. Yoo argues that if CIA interrogators had a good faith belief that what they were doing would not cause the prisoner prolonged mental harm, then they cannot be convicted of torture. Yoo notes that if interrogators were told that the techniques would not cause prolonged mental harm by professionals or if they learned of this through a survey of the professional literature, that would be enough. This if course, makes the participation of psychologists in the torture program all the more important. They were the get out of jail free card.
Next, we have Jack Goldsmith carefully dancing around the Yoo/Bybee torture memos in a pair of letters to the CIA dated May 27th 2004 and July 7, 2004. In the May 27th letter, Goldsmith advises the CIA to continue suspending the use of waterboarding:
[T]he opinion that the Office of Legal Counsel provided to John Rizzo in August 2002 addressing ten enhanced interrogation techniques depended upon a number of factual assumptions as well as limitations concerning how those techniques would be applied, and it is my understanding that this Office subsequently agreed that the same legal principles, subject to the same factual assumptions and limitations, could be applied for interrogations of persons other than the specific individual addressed in that August 2002 opinion. Our initial review of the Inspector General's Report raises the possibility that, at least in some instances and particularly early in the program, the actual practice may not have been congruent with all of these assumptions and limitations.
In particular, it appears that the application of the waterboard technique may have deviated in some respects from the descriptions in our opinion. We have not yet reviewed all the pertinent facts to determine whether such deviations are material for purposes of the advice we provided. Some facts discussed by the Report had clearly been discussed with Department of Justice personnel in 2003. Some other information, however, appears to have been generated in the course of the Inspector General's inquiry. It raises a concern, for example, that the Inspector General has suggested, among other things, that the "SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant." IG Report at 22 n.26. As you know, the use of the waterboard in SERE training was a significant factor in this Office's legal analysis. I understand that the waterboard technique has not been used since March 2003. In light of the assertions in the Inspector General's Report, and the factual assumptions underlying our advice, we strongly recommend that any use of this technique remain suspended until we have had a more thorough opportunity to review the Report and the factual assertions in it.
We recommend that with respect to the use of the other nine techniques, you review the steps you have already taken to ensure that in actual practice any use of those techniques adheres closely to the assumptions and limitations stated in our opinion of August 2002.
The July 7th, 2004 letter reminds the CIA to adhere to "General Safeguards" attached to one of the torture memos and to certain elements of the Army Field Manual:
The Deputy Attorney General asked me to emphasize to you that approval of the nine techniques described in the Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Interrogation of al Qaeda Operative (Aug. 1, 2002), presupposes that the techniques will adhere closely to the assumptions and limitations stated in that memorandum.
The Deputy Attorney General also asked me to emphasize that approval of the twenty-four interrogation techniques in the Secretary of Defense's April 15, 2003, memorandum was conditioned on the set of "General Safeguards" set out as an attachment to that memorandum, and on the cross-referenced descriptions of seventeen of the twenty-four techniques set forth in Army Field Manual 34-54: Intelligence Interrogation (1992). Please ensure that your use of these techniques follows the "General Safeguards" and the descriptions and conditions set forth in the Field Manual.
On July 22d, 2004, Attorney General John Ashcroft writes John McLaughlin, Acting Director of the CIA to tell him that the CIA can use nine of the techniques described in the August 1, 2002 torture memo from Jay Bybee, other than waterboarding.
Finally, we have a seriesoffourletters from Daniel Levin at the OLC approving the CIA's use of various interrogation techniques, including "attention grasp, walling, facial hold, racial slap (insult slap), cramped confinement, wall standing, stress positions, sleep deprivation, dietary manipulation, nudity, water dousing, and abdominal slap."
In the August 6th, 2004 memorandum, Levin approves waterboarding, which Goldsmith had temporarily suspended:
This letter will confirm our advice that, although it is a close and difficult question, the use of the waterboard technique in the contemplated interrogation of [REDACTED] outside territory subject to United States jurisdiction would not violate any United States statute, including 18 U.S.C. § 2340A [the federal anti-torture statute], nor would it violate the United States Constitution or any treaty obligation of the United States.
Levin notes the following restrictions on waterboarding, which, in fact, had not been followed:
The technique will be used in no more than two sessions, of two hours each, per day. On each day, the total time of the applications of the technique will not exceed 20 minutes. The period over which the technique is used will not extend longer than 30 days, and the technique will not be used on more than 15 days in this period. These limits are consistent with the Memorandum for John A. Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay S. Bybee, Assistant Attorney General, Re: Interrogation of al Qaeda Operative (Aug. 1, 2002), and with the previous uses of the technique, as they have been described to us.