The release of a long-awaited ethics report on the conduct of former Justice Department lawyers who authorized the use of harsh interrogation appears to be a ways off.
Attorney General Eric Holder said Tuesday the department is waiting for additional comments from “some of the lawyers who were involved.” The former Office of Legal Counsel lawyers under scrutiny already missed a May deadline for submitting their responses.
Speaking with reporters at Department of Justice headquarters in Washington, Holder said he expected the report to be cleared for release relatively soon. In June, he said the report, now more than four years in the making, would be ready in a “matter of weeks.”
The report explores whether legal advice in the interrogation memos, which have since been rescinded, met professional standards required of Justice Department lawyers. The Office of Professional Responsibility’s initial findings are said to be harshly critical of Jay Bybee, the former head of the Office of Legal Counsel, and John Yoo, a former deputy.
But it’s unlikely that they would face disciplinary action, even if the Office of Professional Responsibility refers its findings to state bar associations. Bybee is now a judge on the U.S. Court of Appeals for the 9th Circuit, and Yoo, a law professor at Berkeley, is likely immune because the conduct in question falls outside of the statute of limitations in Pennsylvania, where he is licensed to practice law.
Bybee’s lawyer, Latham & Watkins’ Maureen Mahoney, declined to comment. Gibson, Dunn & Crutcher’s Miguel Estrada, who represents Yoo, could not be reached.
The report has been in a state of revision since the final weeks of the Bush administration. Newsweek reported in February that then–Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to its conclusions. Filip wanted the ethics office to incorporate responses by the subjects of the probe into the final report, and OPR obliged.
Several Democrats and left-leaning groups have been clamoring for its release. Holder said Tuesday his “hope is that within a relatively short period of time we’re going to be in a position to release that report in as much detail as we can.”
Once the report is complete, it must be combed for sensitive information, Holder said. He gave no indication as to how long the declassification process will take.
This post has been updated.
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The CIA has asked the Justice Department to investigate the disclosure of a secret program to kill foreign terrorist leaders abroad, The Washington Times reports.
CIA Director Leon Panetta told Congress in June that he had terminated a initiative planned in the aftermath of 9/11 to dispatch teams of assassins to target al Qaeda leaders. The program was never put into effect.
The Wall Street Journal was the first to report on the nature of the program, and The New York Times later added contour, revealing that CIA had collaborated with the security contractor Xe, formerly known as Blackwater.
The request comes at time when the CIA’s relationship with the Justice Department is under particular strain. Attorney General Eric Holder recently appointed a career prosecutor to review CIA interrogation methods, and he was a driving force behind the release of secret legal opinions and a CIA inspector general’s report detailing the interrogation program.
If the Justice Department takes the CIA up on its request, the pool of potential subjects would include members of the full House and Senate intelligence committees and senior staff.
The CIA and the Justice Department would not confirm or deny that a request had been made.
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The Justice Department and senior administration officials today fleshed out news reports of a terrorism interrogation team to be housed at the FBI. The unit, named the High-Value Detainee Interrogation Group, was proposed by an inter-agency task force studying interrogation detention practices. President Obama has approved the task force’s recommendations.
From the Justice Department:
After extensively consulting with representatives of the Armed Forces, the relevant agencies in the Intelligence Community, and some of the nation’s most experienced and skilled interrogators, the Task Force concluded that the Army Field Manual provides appropriate guidance on interrogation for military interrogators and that no additional or different guidance was necessary for other agencies. These conclusions rested on the Task Force’s unanimous assessment, including that of the Intelligence Community, that the practices and techniques identified by the Army Field Manual or currently used by law enforcement provide adequate and effective means of conducting interrogations.
The Task Force concluded, however, that the United States could improve its ability to interrogate the most dangerous terrorists by forming a specialized interrogation group, or High-Value Detainee Interrogation Group (HIG), that would bring together the most effective and experienced interrogators and support personnel from across the Intelligence Community, the Department of Defense and law enforcement. The creation of the HIG would build upon a proposal developed by the Intelligence Science Board.
To accomplish that goal, the Task Force recommended that the HIG should coordinate the deployment of mobile teams of experienced interrogators, analysts, subject matter experts and linguists to conduct interrogations of high-value terrorists if the United States obtains the ability to interrogate them. The primary goal of this elite interrogation group would be gathering intelligence to prevent terrorist attacks and otherwise to protect national security. Advance planning and interagency coordination prior to interrogations would also allow the United States, where appropriate, to preserve the option of gathering information to be used in potential criminal investigations and prosecutions.
The Task Force recommended that the specialized interrogation group be administratively housed within the Federal Bureau of Investigation, with its principal function being intelligence gathering, rather than law enforcement. Moreover, the Task Force recommended that the group be subject to policy guidance and oversight coordinated by the National Security Council.
The Task Force also recommended that this specialized interrogation group develop a set of best practices and disseminate these for training purposes among agencies that conduct interrogations. In addition, the Task Force recommended that a scientific research program for interrogation be established to study the comparative effectiveness of interrogation approaches and techniques, with the goal of identifying the existing techniques that are most effective and developing new lawful techniques to improve intelligence interrogations.
Senior administration officials said it was too early to say whether the scientific research program would yield new techniques to be used in interrogations. One official emphasized the program’s goal was not only to identify new methods but to stay abreast of ways of enhancing exisiting ones.
The interrogation groups, the official said, will have a small administrative component, based at the FBI, but it’s unclear how many smaller teams of linguists, subject-matter experts and interrogators will grow from the proposal.
While the effort will be housed at the FBI, the CIA will play a major role, the officials said. The deputy of the team will be drawn from the intelligence community, and it’s presumed the adminstrative head will come from the ranks of the FBI.
Administration officials downplayed the White House’s role in the program, saying that all of the operational details will be handled by the HIG, but the National Security Council will have an oversight function and provide policy guidance.
The Justice Department also released the findings of the task force’s working group on transfer policy. See below:
The Task Force also made policy recommendations with respect to scenarios in which the United States moves or facilitates the movement of a person from one country to another or from U.S. custody to the custody of another country to ensure that U.S. practices in such transfers comply with U.S. law, policy and international obligations and do not result in the transfer of individuals to face torture. In keeping with the broad language of the Executive Order, the Task Force considered seven types of transfers conducted by the U.S. government: extradition, transfers pursuant to immigration proceedings, transfers pursuant to the Geneva Conventions, transfers from Guantanamo Bay, military transfers within or from Afghanistan, military transfers within or from Iraq, and transfers pursuant to intelligence authorities.
When the United States transfers individuals to other countries, it may rely on assurances from the receiving country. The Task Force made several recommendations aimed at clarifying and strengthening U.S. procedures for obtaining and evaluating those assurances. These included a recommendation that the State Department be involved in evaluating assurances in all cases and a recommendation that the Inspector Generals of the Departments of State, Defense and Homeland Security prepare annually a coordinated report on transfers conducted by each of their agencies in reliance on assurances.
The Task Force also made several recommendations aimed at improving the United States’ ability to monitor the treatment of individuals transferred to other countries. These include a recommendation that agencies obtaining assurances from foreign countries insist on a monitoring mechanism, or otherwise establish a monitoring mechanism, to ensure consistent, private access to the individual who has been transferred, with minimal advance notice to the detaining government.
The Task Force also made a series of recommendations that are specific to immigration proceedings and military transfer scenarios. In addition, the Task Force made classified recommendations that are designed to ensure that, should the Intelligence Community participate in or otherwise support a transfer, any affected individuals are subjected to proper treatment.
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The former deputy attorney general of the Office of Legal Counsel will no longer be represented by Justice Department lawyers in a lawsuit in California. Private lawyers will defend John Yoo on DOJ’s dime — a max of $200 an hour.
Yoo, now a visiting professor at Chapman University School of Law, is being sued by Jose Padilla, who was detained for more than three-and-half years in a military brig in South Carolina. Padilla was convicted last year of supporting terrorists and conspiring to commit murder. Padilla, a U.S. citizen, claims that Yoo was one of the architects of unlawful policies that led to the harsh interrogations and extreme isolation he allegedly suffered there. His lawsuit asks for a judgment declaring the policies unlawful, $1 in damages and attorneys fees.
“The department so far has been able to provide direct representation in this case by arguing that the lawsuit should be dismissed for qualified immunity reasons, and that remains the department’s position,” Tracy Schmaler, a Justice Department spokeswoman, said yesterday in an e-mail. “But as this case moves forward, the defendant deserves the opportunity to retain defense counsel that can make any and all arguments available on his behalf.”
It’s unclear who dumped whom, and court filings give no indication as to who will represent Yoo going forward.
The move comes less than week after a report by a group of inspectors general concluded that Yoo used flawed reasoning to support the Bush administration’s warrantless wiretapping program, and months after the Obama administration released legal memos (many of which were withdrawn in part or in full) showing Yoo’s gaping view of executive power.
A federal judge refused to throw out the Padilla case last month, after the Justice Department argued, while holding its nose, that a civil suit was an inappropriate vehicle for addressing issues raised in his complaint.
Schmaler said footing the legal bills is “normal practice when the potential exists for disagreement between the government and the defendant over complex legal questions.” (Qualified immunity protects government officials from being sued for damages unless they violated clearly established law.)
The Justice Department is also shelling out for private lawyers to defend former Attorney General Alberto Gonzales against a lawsuit alleging that he encouraged officials to inject partisan politics into the department’s hiring and firing practices. And the department is paying the bills for six prosecutors under criminal investigation for their handling of the Ted Stevens case.
The DOJ’s standard retention agreement stipulates that lawyers with five or more years of experience may be reimbursed up to $200 an hour, for a maximum of 120 hours a month. (Before you get all indignant, that’s less than a first-year associate at a major D.C. firm bills.)
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In a Newsweek interview released over the weekend, President Barack Obama made an interesting statement regarding former Vice President Dick Cheney’s policies that, to our knowledge, has gone without much remark:
You know, Dick Cheney had a strong perspective about national security. It was tested in the early years of the Bush administration, and I think it resulted in a series of very bad decisions. I think what’s interesting is that, in some ways, Dick Cheney actually lost these arguments inside the Bush administration.
And so he may have won early with Colin Powell and Condi Rice, but over the last two or three years of the Bush administration, I think there was a recognition among Republicans and Bush administration officials that these enhanced interrogation techniques that were being applied—that they had applied early on—were potentially counterproductive; that a posture of never talking to our enemies, of unilateral action, of framing national security only in terms of the application of force, often unilateral—that that wasn’t producing.
And so it’s interesting to me to see the vice president spending so much time trying to vindicate himself and relitigate the last eight years when, as I said, I think, actually, a lot of these arguments were settled even before we took over the White House.
While the President has shown he wants to minimize his involvement in the debate over prosecution of former Bush officials, he’s clearly trying to influence the messaging. Cheney, of course, had mammoth bureaucratic battles with Powell, who left the administration after Bush’s first term and endorsed Obama for president shortly before the 2008 elections. Powell argues the GOP won’t be back in power until it moves closer to the center of public opinion. Cheney recently took a public shot at Powell, remarking: “I didn’t know he was still a Republican.”
Obama’s Newsweek interview comes on the heels of recent revelations made by Col. Lawrence Wilkerson. The former chief of staff to Powell at the State Department referred to Cheney as the “Sith Lord” on Steven Clemons’ blog and notes:
Third–and here comes the blistering fact–when Cheney claims that if President Obama stops “the Cheney method of interrogation and torture”, the nation will be in danger, he is perverting the facts once again. But in a very ironic way.
My investigations have revealed to me–vividly and clearly–that once the Abu Ghraib photographs were made public in the Spring of 2004, the CIA, its contractors, and everyone else involved in administering “the Cheney methods of interrogation”, simply shut down. Nada. Nothing. No torture or harsh techniques were employed by any U.S. interrogator. Period. People were too frightened by what might happen to them if they continued.
What I am saying is that no torture or harsh interrogation techniques were employed by any U.S. interrogator for the entire second term of Cheney-Bush, 2005-2009. So, if we are to believe the protestations of Dick Cheney, that Obama’s having shut down the “Cheney interrogation methods” will endanger the nation, what are we to say to Dick Cheney for having endangered the nation for the last four years of his vice presidency?
Likewise, what I have learned is that as the administration authorized harsh interrogation in April and May of 2002–well before the Justice Department had rendered any legal opinion–its principal priority for intelligence was not aimed at pre-empting another terrorist attack on the U.S. but discovering a smoking gun linking Iraq and al-Qa’ida.
So furious was this effort that on one particular detainee, even when the interrogation team had reported to Cheney’s office that their detainee “was compliant” (meaning the team recommended no more torture), the VP’s office ordered them to continue the enhanced methods. The detainee had not revealed any al-Qa’ida-Baghdad contacts yet. This ceased only after Ibn al-Shaykh al-Libi, under waterboarding in Egypt, “revealed” such contacts. Of course later we learned that al-Libi revealed these contacts only to get the torture to stop.
There in fact were no such contacts. (Incidentally, al-Libi just “committed suicide” in Libya. Interestingly, several U.S. lawyers working with tortured detainees were attempting to get the Libyan government to allow them to interview al-Libi….)
As the question surrounding prosecutions shifts to Cheney pushing for torture to vindicate his decision to invade Iraq, expect more dialogue about disagreements between Cheney and the rest of the Bush administration.
And just for kicks, on Saturday Night Live, Will Ferrell wishes Cheney would be more like Vice President Joe Biden, reveals Cheney’s most embarrassing secret, and why Cheney should get off Powell’s case:
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The Federal Bureau of Investigation is enjoying a reputational Renaissance as the political debate rages around the Central Intelligence Agency interrogation techniques. Under the leadership of J. Edgar Hoover, the Bureau was tarnished for its politically motivated spying on people like civil rights leader Martin Luther King Jr. But with FBI Director Robert Mueller’s strong moral and legal compass, the Bureau is coming up roses in the current controversy.
It’s long been known that the FBI objected to the use of “harsh interrogation” methods against high-value al-Qaeda detainnees. See the DOJ Inspector General’s 435-page report on the inter-agency conflicts here. But an April 17 New York Times story highlighted the disagreement, noting that when the FBI – using traditional “rapport building” techniques — questioned al-Qaeda detainee Abu Zubaydah in 2002, he gave up the single most important bit of information: That Khalid Sheikh Mohammed was the organizer of the 9/11 attacks. The CIA later took over with the waterboarding. Former Vice President Dick Cheney argues that the waterboarding and other techniques yielded valuable information and has asked for documents to be declassifed to prove it.
UPDATE: We should have mentioned earlier former FBI agent Ali Soufan’s op-ed piece in the New York Times in which the veteran of the USS Cole bombing investigation described how he did it (without torture). And Greg Sargent’s piece in The Plum Line recalling FBI Director Bob Mueller’s 2008 comments that he didn’t believe any attacks on the U.S. had been disrupted using information gleaned by torture.
Ron Suskind, author of the 2006 book, “The One Percent Doctrine,” which outlined some of the interrogation techniques, appeared on the Rachel Maddow last night and praised the FBI. View the show here: