Balkinization: The Commander in Chief's Signature

The Commander in Chief's Signature

Marty Lederman

The Washington Post this morning reports that the White House twice issued memoranda to the CIA authorizing the use of its so-called "enhanced" interrogation techniques. I'm not quite sure why this is breaking news. President Bush, after all, has already boasted that he specifically approved of each of the techniques, and we've now seen the reports of principals' meetings at which the techniques were discussed and authorized in exquisite detail.

What the Post story confirms, I suppose, is that the White House sign-off was written, rather than oral. Why is that important? I'm not sure it is. So what's the importance of the story? Perhaps the following passage offers a clue. The President had already signed off on the CIA techniques once. But then . . .

By the spring of 2004, the concerns among agency officials had multiplied, in part because of shifting views among administration lawyers about what acts might constitute torture, leading Tenet to ask a second time for written confirmation from the White House. This time the reaction was far more reserved, recalled two former intelligence officials. "The Justice Department in particular was resistant," said one former intelligence official who participated in the discussions. "They said it doesn't need to be in writing."

What's that about?

One possibility: When John Yoo was at OLC, the CIA's program was defended in large part on the theory that the President, as Commander in Chief, could authorize conduct that would violate the torture statute and other laws -- and that such a CINC authorization would be a defense to later prosecution. Naturally, those violating the criminal law would be eager to have written proof that they had been acting pursuant to the Commander in Chief's (alleged) constitutional authority. So, for example, the April 4, 2003 Working Group Report (written largely by John Yoo) states that "[w]here the Commander-in-Chief authority is being relied upon, a Presidential written directive would serve to memorialize this authority." Similarly, ABC News later reported (based on notes of a DoD official) that in a meeting held March 8, 2003, a group of top Pentagon lawyers concluded that "we need a presidential letter approving the use of the controversial interrogation to cover those who may be called upon to use them."

We now know, however, that by 2004 the new head of OLC, Jack Goldsmith, was very reluctant to rely upon the Commander in Chief argument. (That's why the Dan Levin OLC Opinion of December 30, 2004, did not include discussion of such an argument.) If the writing the CIA was requesting was of the "Commander in Chief Get Out of Jail Free Card" variety, it is understandable why DOJ might have been "resistant" come 2004: Perhaps the new lawyers there did not wish to approve any documents suggesting that the techniques in question did violate the criminal law -- nor to affirm the view that the President could authorize circumvention of such law.

Just a guess.

Posted 8:28 AM by Marty Lederman [link]

Comments:

It's also significant because Rumsfeld was supposed to have revoked permission for the techniques by that time, the Abu Ghraib scandal was in full swing, and we were being told that the torture memos were working drafts, etc., etc.

Now it turns out they were still signing memos, still torturing, and anything repudiated publicly due to Abu Ghraib was being secretly re-approved.

# posted by

ondelette : 9:30 AM

I think you need to put your litigator hat on Marty. By then, in 2004, Maher Arar had a torture lawsuit pending against Ashcroft (one Comey tried to get deep sixed by invoking state secrets).

Also by then, Clement had stood before the Supreme Court and stated on behalf of the Executive Branch - made affirmative representations to the court - that we were not torturing.

There were other lawsuits already brought and in the offing - there were dead detainees as well by then and disappeared children.

As repulsive as it all was, and as shockingly indecent as even the "replacement crew" of Goldsmith and Comey were, they were better enough lawyers (at least Comey seems to have been)that they were trying to protect their clients - the AG and President (not so much the Constitution and The People, but that train left the station).

If you are protecting your clients, you try to keep them from putting their conspiracy to torture in writing. Similarly, it sounds like someone at CIA or elsewhere was pushing to protect their client by getting it in writing - so that not only could they claim the benefit of that bizarre little right wing theory that "if the President wants it, it can't be illegal" but also so they would be pretty crystal clear cut entitled to a pardon. I wonder if the "memos" don't basically equate as pocket pardons for that matter.

# posted by

Mary : 11:12 AM

imo .. a president ..even as CNC .. cannot legally order .. or excuse acts which are forbidden by statute law .. or the constitution ...

and for my cite i refer to the military axiom which states one is not obligated to follow any order which is illegal .. immoral .. or against the laws of land warfare .. such orders are not actionable .. they are illegal .. end of story .. and quoting them as a defense is no defense at all under the UCMJ .. never has been .. see the nuremburg principle ..

# posted by

Jkat : 11:15 AM

By the spring of 2004, the concerns among agency officials had multiplied, in part because of shifting views among administration lawyers about what acts might constitute torture, leading Tenet to ask a second time for written confirmation from the White House. This time the reaction was far more reserved, recalled two former intelligence officials. "The Justice Department in particular was resistant," said one former intelligence official who participated in the discussions. "They said it doesn't need to be in writing." What's that about?

Jack Goldsmith. In The Terror Presidency, Goldsmith wrote that Yoo was mistaken in setting a bright line for torture and strongly implied that the line should be muddied up to appearances' sake.

# posted by

Bart DePalma : 12:39 PM

"Bart" DePalma emits this strange sentence:

In The Terror Presidency, Goldsmith wrote that Yoo was mistaken in setting a bright line for torture and strongly implied that the line should be muddied up to appearances' sake.

What "appearances"?!?!?

Could you please explain your flights of fancy here? Ummmm ... on second thought, I take that request back. If you have more to say, do it on your own blog so we don't accidentally step in it.

Cheers,

# posted by

Arne Langsetmo : 1:46 PM

This February Michael Hayden said that the US used waterboarding on only 3 prisoners in 2002 and 2003. Last November the WSJ said essentially the same thing. The implication was that the CIA or perhaps the Bush administration had decided to retire the practice.

So this WP report shows that waterboarding and the rest were still very much on the table in mid 2004, at least as far as the CIA was concerned.

# posted by

: smintheus :: : 2:48 PM

I think there is pretty good circumstantial evidence that the July 2004 'memo' is an official Presidential finding. In the CIA's Vaughn index[1] of documents withheld in the ACLU, et. al., FOIA case, document 22 is described thusly:
Date of Document: July 13, 2004
Classification : SCI, Top Secret
From/To: Prepared by a senior Agency official
Subject: Congressional notification
Document Pages : 6

Document Description : This six-page document consists of a three-page memorandum for the record and a three-page memorandum of briefing notes. Both documents concern a briefing to Congress on a particular set of issues. The document is dated July 13, 2004 and bears the classification TOP SECRET//SCI.

This is, as far as I can tell, the only document described as a 'Congressional notification' in the entire index which makes me suspect that it was the notification required for a Presidential finding. If the WaPo report is accurate and my guess is correct, George W. Bush's signature is on a document that authorizes torture as the official policy of the U.S.

[1] The Vaughn index used to be linked here:
http://ccrjustice.org/newsroom/press-releases/cia-foia-documents

I can't connect to that site today.

# posted by

William Ockham : 5:16 PM