Tags: cia, davic margolis, eric holder, geneva conventions, house judiciary, interrogation, jason leopold, jay bybee, John Ashcroft, John Conyers, john yoo, justice department, mary patrice brown, Michael Chertoff, nuremberg, olc, opr, patrick leahy, roger hollander, senate judiciary, special prosecutor, steven bradbury, torture, torture memo, waterboarding
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(Roger’s note: Harry Truman famously said, “The buck stops here.” This is a rare admission of accountability coming from government. The entire cover up of the notorious and illegal Cheney/Bush torture program, including the conviction of the likes of Lynndie England at Abu Ghraib and focusing on “rogue” CIA agents, is a typical government maneuver to shirk ultimate responsibility. Many of us thought the OPR report might finally give some satisfaction at a higher level, but the buck has been passed from President Obama to Attorney General Holder to Associate Deputy Attorney General David Margolis, who has put a kibosh on the findings that would have led to sanctions against Yoo and Bybee.
[Oct.9, 2009: Yoo and Bybee submit their responses to final report to Associate Deputy Attorney General David Margolis, who is tasked with reviewing OPR’s conclusions. http://www.mainjustice.com/2010/02/19/a-timeline-of-the-opr-report/ ]
My question is: who “tasked” David Margolis to whitewash the OPR report’s conclusions? Call my cynical, but could it have been Holder who was told by Obama to find a reliable subaltern to do the dirty deed?
I would also point out that the jurists who provoided the legal framework for Hitler’s halocaust were subject to accountability by the Nuremberg Tribunal along with the high level government officials who carried out the genocide. We can be thankful that the likes of Obama and Holder were not calling the shots then, which would have resulted in some low level “rogue Nazis” convicted and punished for the extinction of millions of Jews, Gypsies, Gays, communitsts, etc. while Hess, Goring, Bormann and the rest of the Hitler A Team got off scott free.)
Friday 19 February 2010
For background on Jason Leopold’s extensive work on the Yoo/Bybee torture memo report please see here, here, here, and here. Leopold will also be writing a through analysis of the voluminous report this weekend.
A long-awaited report into the legal memos former Justice Department attorneys John Yoo and Jay Bybee prepared for the Bush administration on torture was released Friday afternoon and concluded that the men violated “professional standards” and should be referred to state bar associations where a further review of their legal work could have led to the revocation of their law licenses.
But career prosecutor David Margolis, who reviewed the final version of the report, changed the disciplinary recommendations to “exercised poor judgment.” [There are three versions of the report, all of which can be found here.]
That means Yoo and Bybee will not be punished for having fixed the law around Bush administration policy that allowed the CIA to subject suspected terrorists to torture techniques, such as waterboarding, beatings, and sleep deprivation, as the report notes.
Yoo is a law professor at UC Berkeley and Bybee is a 9th Circuit Appeals Court judge. Former Justice Department official Steven Bradbury also authored several torture memos and was criticized in the OPR report. Investigators said they had “serious concerns about his analysis.” But the report did not charge him with ethical violations.
Former Attorney General John Ashcroft and Michael Chertoff, who was head of the Justice Department’s criminal division at the time the torture memos were prepared, were also criticized for not conducting a critical legal analysis of the memos, though neither was charged with misconduct. Ashcroft refused to cooperate with the investigation.
According to a January 5 memo Margolis sent to Attorney General Eric Holder, the Justice Department’s Office of Professional Responsibility (OPR) issued a final report on July 29, 2009 and “concluded that former Office of Legal Counsel (OLC) attorneys John Yoo and Jay Bybee engaged in professional misconduct by failing to provide ‘thorough, candid, and objective’ analysis in memoranda regarding the interrogation of detained terrorist suspects.”
Yoo specifically was found to have “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”
Bybee was found to have “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”
The report says that Yoo believed that George W. Bush’s Commander-in-Chief powers gave him the authority to unilaterally order the mass murder of civilians.
In the final version of the report, an OPR investigator questioned Yoo about what he referred to as the “bad things opinion,” where Yoo discussed what the president could do during wartime.
“What about ordering a village of resistants to be massacred?” an OPR investigator asked Yoo. “Is that a power that the president could legally—”
“Yeah,” Yoo said.
“To order a village of civilians to be [exterminated]?” the questioner replied.
“Sure,” Yoo said.
But Margolis, who suggested Yoo and Bybee’s flawed legal work was due to efforts to prevent another 9/11, said he was “unpersuaded” by OPR’s “misconduct” conclusins and declined to endorse its findings.
An earlier version of the report rejected that line of reasoning.
“Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear,” says the earlier draft of the report from OPR head Mary Patrice Brown. Her report, like the original draft, was sharply critical of the legal work that went into the torture memos and found that it lacked “thoroughness, objectivity and candor.”
“OPR’s own framework defines ‘professional misconduct’ such that a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney’s conduct,” Margolis wrote in the 69-page memo. “I am unpersuaded that OPR has identified such a standard. For this reason…I cannot adpot OPR’s findings of misconduct, and I will not authorize OPR to refer its findings to the state bar disciplinary authorities in the jurisdictions where Yoo and Bybee are licensed.”
Despite dozens of cases highlighted in the report that showed Yoo twisted the law in order to advance the Bush administration’s torture policy, Margolis said he did “not believe the evidence establishes [that Yoo] set about to knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his actions.”
“While I have declined to adopt OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client,” Margolis added.
Margolis concluded his review, stating that “these memos contained some significant flaws.
“But as all that glitters is not gold, all flaws do not constitute professional misconduct,” he wrote. “The bar associations in the District of Columbia or Pennsylvania can choose to take up this matter, but the Department will make no referral.”
Margolis described himself in the memo as a “Department of Justice official who [beginning in the 1990s] has resolved challenges to negative OPR findings against former Department attorneys, most often in the context of proposed bar referrals.”
Yoo’s attorney, Miguel Estrada, said in an October 9, 2009 rebuttal to the final version of the report that ”this perversion of the professional rules and myopic pursuit of Professor Yoo and Judge Bybee, can be explained only by a desire to settle a score over Bush administration policies in the war on terror.”
“But policy disputes are for the ballot box, not for the bar,” Estrada said. “Professor Yoo and Judge Bybee did nothing more than provide a good-faith assessment of the legality of a program deemed vital to our national security.”
Estrada claims that Yoo and Bybee were well aware of what the “CIA wanted” in the areas of subjecting detainees to brutal torture techniques.
“Of course the attorneys at OLC knew what the CIA wanted, since they knew the agency was attempting to get information to thwart further terrorist attacks, and indeed OLC obviously was being asked to opine on specific interrogation techniques that it knew the CIA wished to use if it legally could do so,” he said.
OPR investigators noted that during the course of their four-and-a-half year probe, they were unable to obtain all of the evidence they needed. For example, they said that “most” of Yoo’s emails they sought during the critical time period the memos were drafted prior to August 2002 “had been deleted and were not recoverable.”
House Judiciary Committee Chairman John Conyers, whose office released the report, said he will hold a hearing to discuss the findings “shortly.”
In a statement accompanying the report, Conyers said the report makes clear that the torture memos “were legally flawed and fundamentally unsound.”
“Even worse,” Conyers said. “It reveals that the memos were not the independent product of the Department of Justice, but were shaped by top officials of the Bush White House. It is nothing short of a travesty that prisoners in US custody were abused and mistreated based on legal work as shoddy as this.”
Senate Judicary Chairman Patrick Leahy also condemned the findings and announced that he will hold a hearing on the report’s findings next Friday. In a statement, Leahy said the report “is a condemnation of the legal memoranda drafted by key architects of the Bush administration’s legal policy, including Jay Bybee and John Yoo, on the treatment of detainees.”
“The deeply flawed legal opinions proffered by these former OLC officials created a ‘golden shield’ that sought to protect from scrutiny and prosecution the Bush administration’s torture of detainees in US custody. In drafting and signing these unsound legal analyses, OLC attorneys sanctioned torture, contrary to our domestic anti-torture laws, our international treaty obligations and the fundamental values of this country,” Leahy added. “I have serious concerns about the role each of these government lawyers played in the development of these policies. I have said before that if the Judiciary Committee, and the Senate, knew of Judge Bybee’s role in creating these policies, he would have never been confirmed to a lifetime appointment to the federal bench. The right thing to do would be for him to resign from this lifetime appointment.”
The Center for Constitutional Rights (CCR), which represents several detainees at Guantanamo and others who were tortured by military and CIA interrogators, called for Bybee to be impeached and for Holder to order a criminal probe headed by a special prosecutor.
In a statement, CCR said the report makes it “makes it abundantly clear that the decisions about the torture program took place at the highest level, and the damning description of the program further show that the torture memos were written to order by the lawyers from the Office of Legal Counsel who played a key role in creating the program.”
“Ultimately Jay Bybee must be impeached, tried and removed from his seat as a federal judge on the 9th Circuit, but he should have the decency to resign immediately,” CCR aaid. “We call on Attorney General Eric Holder to order these men criminally investigated by an independent special prosecutor who is allowed to follow the facts where they lead, all the way up the chain of command.”
Jameel Jaffer, director of the ACLU’s National Security Project, which is largely responsible for bringing to light many of the revelations about the torture program described in the report, said, “The OPR report confirms the central role that the Office of Legal Counsel played in developing the Bush administration’s torture program, and it underscores once again that the decision to endorse torture was made by the Bush administration’s most senior officials.”
“It also makes clear that the investigation initiated by the Justice Department last year, which focuses on ‘rogue’ interrogators, is too narrow,” Jaffer added. “Interrogators should be held accountable where they violated the law, but the core problem was not one of rogue interrogators but one of senior government officials who knowingly authorized the gravest crimes. The Justice Department should immediately expand its investigation to encompass not just the interrogators who used torture but the senior Bush administration officials who authorized and facilitated it.”
Tags: Abu Ghraib, bagram, cia interrogation, Dick Cheney, doj, eric holder, geneva conventions, Guantanamo, john nichols, justice department, office of legal counsel, olc, roger hollander, russ feingold, special prosecutor, torture, torture architects, torture memos
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Wisconsin Sen. Russ Feingold, the chief Senate critic of executive excess and wrongdoing during both Republican and Democratic administrations, wants Attorney General Eric Holder to appoint a prosecutor to investigate the CIA’s harsh interrogation program.
But Feingold wants Holder to do it right.
The chair of the Constitution Subcommittee of the Senate Judiciary Committee is concerned that the appointment of a prosecutor by Holder, which now seems increasingly likely, come with a charge by the attorney general “to focus on holding accountable the architects of the CIA’s interrogation program.”
In a letter to Holder, Feingold, who also sits on the Senate Intelligence Committee, wrote:
“Dear Attorney General Holder:
“Recent news stories indicate that you have reviewed the highly classified 2004 CIA Inspector General report on the CIA’s interrogation program, and that as a result you are considering appointing a prosecutor to investigate individuals who may have gone beyond the legal authorization for that program provided by the Office of Legal Counsel (OLC) at the Department of Justice. I write to encourage you to do so, but also to urge you to focus on holding accountable the architects of the CIA’s interrogation program. While allegations that individuals may have even gone beyond what was justified by those now-public OLC memos are extremely disturbing, we should not lose sight of the fact that the program itself — as authorized — was illegal, not to mention immoral and unwise.
“As I said in a letter to President Obama in April, the OLC documents make clear that the details of this program were authorized at the highest levels of government, which is where the need for accountability is most acute. Those who developed, authorized and provided legal justification for the interrogations should be held responsible.
“I understand this is a difficult decision for you, and I want to assure you that you will have my full support if you take this important step in furtherance of the rule of law.”
This is an essential message, and an essential step in the process.
Official Washington does not like accountability.
Holder will be under pressure to organize a narrow inquiry that focuses on the misdeeds of underlings.
But this investigation needs to go where the real wrongdoing took place.
Former Vice President Dick Cheney was a principal proponent of harsh interrogation during the Bush/Cheney years and has since emerged as the primary defender of the initiative.
When asked about the use of torture tactics late last year, Cheney told “ABC News,” “I was aware of the program, certainly, and involved in helping get the process cleared, as the agency, in effect, came in and wanted to know what they could and couldn’t do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it.”
That is an invitation — from Cheney himself — to, as Feingold suggests, investigate the extent to which illegal activity was “authorized at the highest levels of government” and to “(hold) accountable the architects of the CIA’s interrogation program.”
Americans should tell the attorney general to accept this invitation, and the Credo Action Project of the progressive long-distance phone service, Working Assets, is offering them an opportunity to do just that with a new campaign to tell Eric Holder to start his torture investigation with Dick Cheney. Check it out.
© 2009 The Capital Times
John Nichols is Washington correspondent for The Nation and associate editor of The Capital Times in Madison, Wisconsin. A co-founder of the media reform organization Free Press, Nichols is is co-author with Robert W. McChesney of Tragedy & Farce: How the American Media Sell Wars, Spin Elections, and Destroy Democracy – from The New Press. Nichols’ latest book is The Genius of Impeachment: The Founders’ Cure for Royalism.
CIA Refuses to Turn Over Torture Tape Documents May 13, 2009Posted by rogerhollander in Criminal Justice, Torture.
Tags: Abd al-Rahim al-Nashiri, Abu Ghraib, Abu Zubaydah, aclu, american civil liberties union, amrit singh, bagram, bush administration, cia, cia videotapes, Criminal Justice, destroyed cia tapes, detainees, doj, enhanced interrogation techniques, foia, freedom of information, geneva conventions, Guantanamo, International law, interrogation, interrogation videotapes, jason leopold, john durham, justice department, kyle foggo, nuremburg, roger hollander, special prosecutor, torture, torture memos, torture methods, torture videotapes, waterboarding
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(Roger’s note: no, that is not a typo finding the words “integrity” and “CIA” in the same sentence. If it weren’t so tragic it would be funny. And, by the way, John Durham was appointed in January of 2008 to lead a criminal probe into the destruction of the CIA torture, aka interrogation tapes. One wonders what is taking so long.)
Wednesday 13 May 2009, www.truthout.org
by: Jason Leopold, t r u t h o u t | Report
The CIA claims the integrity of a special prosecutor’s criminal investigation into the destruction of 92 interrogation videotapes will be compromised if the agency is forced to turn over detailed documents to the American Civil Liberties Union (ACLU) describing the contents of the tapes, according to newly released court documents.
In a May 5 letter to US District Court Judge Alvin Hellerstein, Lev Dassin, the acting US attorney for the Southern District of New York, said the Justice Department recently had discussions with prosecutors working on the criminal investigation into the destruction of the interrogation tapes and was informed that “the production of documents … would conflict and substantially interfere with the [criminal] investigation” into the destruction of the interrogation tapes.
”As the court is aware, the scope of the tapes investigation includes the review of whether any person obstructed justice, knowingly made materially false statements, or acted in contempt of court or Congress in connection with the destruction of videotapes,” Dassin’s letter says. “The Government thus respectfully requests that [a previous court order demanding the CIA turn over detailed descriptions of the contents of the destroyed tapes] be withdrawn or otherwise stayed until the tapes investigation has been completed.”
Amrit Singh, an ACLU staff attorney, said the move is “a classic CIA delay tactic.”
In court papers, she said the government is using the criminal investigation “as a pretext for indefinitely postponing” its obligation to produce documents related to the destruction of the videotapes.
”The Government makes no mention of an expected timeline for completion of [Special Prosecutor John] Durham['s] investigation,” the ACLU said in court papers. “Nor has Mr. Durham provided a declaration in support of the Government’s position.”
Hellerstein seemed to agree. He pointed out in a two-page order that Durham had not stepped forward to state that his probe would be hindered if documents related to the destruction of the tapes were turned over to the ACLU.
In fact, in a March court filing, Dassin noted that a stay of the contempt motion filed by the ACLU seeking release of the tapes was allowed to expire on February 28 without a request for a continuation – signaling that Durham’s investigation was complete. In January, Durham had indicated in a court filing that he expected to wrap up his probe by the end of February.
Last month, however, Durham questioned the CIA’s former number three official, Kyle “Dusty” Foggo, about the destruction of the tapes. Foggo, who was sentenced to three years in prison for fraud for steering lucrative contracts to a friend, was due to report to federal prison, but Durham asked for a delay so he could question him about the tape destruction.
In December 2007, the ACLU filed a motion to hold the CIA in contempt for its destruction of the tapes in violation of a court order requiring the agency to produce or identify all records requested by the ACLU related to the CIA’s interrogation of “war on terror” detainees.
Hellerstein ordered the Justice Department, on behalf of the CIA, to file legal briefs by May 27 justifying the reasons for withholding the documents. He added that those papers should include affidavits, including a declaration from the special prosecutor investigating the tape destruction
Those documents “may include also any reasons why the identity of persons involved in the destruction should not be disclosed,” Hellerstein wrote in a two-page order.
Several weeks ago, Dassin revealed in another court filing that the CIA has about 3,000 documents related to the 92 destroyed videotapes, suggesting an extensive back-and-forth between CIA field operatives and officials of the Bush administration. The Justice Department said the documents include “cables, memoranda, notes and e-mails” related to the destroyed CIA videotapes.
In last week’s court filing, Dassin said, “those 3,000 records included ‘contemporaneous records,’ which were created at the time of the interrogation or at the time the videotapes were viewed, ‘intelligence record,’ which do not describe the interrogations but contain raw intelligence collected from the interrogations, ‘derivative records,’ which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations, that upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.”
The ACLU and the government have jointly proposed that the government describe the contents of the “contemporaneous” and “derivative” records, but not the intelligence records or the “other records that ultimately proved to be unrelated to the interrogations or the videotapes.”
Dassin said the Justice Department intends to turn over additional indexes next month, and on May 18 will produce a list of “all contemporaneous records and all derivative records” related to the destruction of the interrogation tapes, but he added that quite a bit of information will be withheld.
In previous court filings, Dassin acknowledged that 12 videotapes, showed Zubaydah and Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, being subjected to waterboarding and other harsh methods. The 80 other videotapes purportedly show Zubaydah and al-Nashiri in their prison cells. Some of the videotapes predated the Justice Department’s August 1, 2002, legal memo authorizing CIA interrogators to use ten torturous methods against “high-value” detainees.
But it’s unknown whether the interrogation tapes that predate the August 1, 2002, “torture” depict “enhanced interrogation” techniques not yet approved by the Justice Department.
Last week, the CIA turned over to the ACLU documents that showed CIA interrogators at a secret “black site” prison provided top agency officials in Langley with daily “torture” updates of Abu Zubaydah, the alleged “high-level” terrorist detainee, who was waterboarded 83 times in August 2002.
The documents included two sets of indexes (Part I) (Part II), totaling 52 pages that contained general descriptions of cables sent back to CIA headquarters describing the August 2002, videotaped interrogation sessions of Zubaydah. Those cable transmissions included a description of the techniques interrogators had used and the intelligence, if any, culled from those sessions.
The CIA and the Justice Department declined to turn over a more detailed description of the cables its field agents sent back to headquarters, citing several exemptions under the Freedom of Information Act.
In a two-page letter accompanying the indexes, CIA Associate General Counsel John McPherson wrote that a “senior government official” would submit a declaration on May 22 “that more fully explains the justifications for withholding a more detailed description of the cables.”
Jason Leopold is editor in chief of The Public Record, www.pubrecord.org.