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Former DOJ Official Yoo Refuses to Testify

April 22, 2008 4:21 PM

Former Justice Department lawyer John Yoo, who wrote the controversial legal memos authorizing harsh interrogation programs, will not testify voluntarily before the House Judiciary Committee -- paving the way for a possible subpoena and showdown over Executive Privilege. Yoo's lawyer has just informed House Judiciary Committee Chair John Conyers that he would not appear.

In a letter, Yoo's lawyer told Conyers he was "not authorized" by DOJ to discuss internal deliberations.

"We have been expressly advised by the Office of Legal Counsel of the United States Department of Justice that Professor Yoo is not authorized to discuss before your Committee any specific deliberative communications, including the substance of comments on opinions or policy questions, or the confidential predecisional advice, recommendations or other positions taken by individuals or entities of the Executive Branch," Yoo's lawyer, John C. Millian, wrote in a letter to Conyers.

Millian also noted that Yoo was involved in a lawsuit over the legal memos and that it would "not be appropriate" for him to testify while the litigation was pending.

Conyers invited Yoo to testify before the committee May 6th about the memos. He told Yoo the committee was prepared to subpoena him if he declined to appear voluntarily. Today's letter -- and DOJ's position that Yoo was not authorized to answer Conyers' questions -- is likely to lead to that next step.

Yoo isn't the only administration official the Judiciary Committee is asking to testify. After ABC News reported that top administration officials approved specific details of harsh interrogations by the CIA, Conyers sent another round of letters.

"New and troubling allegations suggest that the decisions on torture came from the highest levels of government," Conyers said after the ABC report. "These reports, if true, represent a stain on our democracy. The American people deserve to hear directly from those involved."

Those invited include former Attorney General John Ashcroft, CIA Director George Tenet, former Assistant Attorney General Daniel Levin and former undersecretary of Defense Douglas Feith, as well as Vice President Cheney's Chief of Staff David Addington.

April 22, 2008 | Permalink | User Comments (39) | TrackBack (0)

"The Principals" of Interrogation

April 10, 2008 8:28 AM

This is  a link to a my World News story last night that I've spent the last five months reporting.  It's  about what sources said was the role of some of the President's most senior and influential advisers--Principals of the National Security Council--in approving so-called "enhanced interrogation techniques" on captured al Qaeda prisoners. In dozens of discussions and meetings, sources said, a handful of those advisers discussed specific prisoners and exactly how those prisoners would be interrogated.  Whether for example, they would be slapped, pushed, deprived of sleep, or subjected to simulated drowning--water-boarding.  You can read a more detailed version here.   This is a related story that offers The Principals' defense of the "enhanced interrogation" program and another about efforts by civil liberties groups to uncover the legal documents about the treatment of terror detainees.   

April 10, 2008 | Permalink | User Comments (3) | TrackBack (0)

Torture in Daylight

April 02, 2008 9:51 AM

Now that we've finally gotten the long-renounced and repudiated 2003 torture memo authorizing harsh interrogation techniques by the military, there are obvious questions about what took the White House so long to release it--and why.

In fact, there were some people at DOJ who argued for the release of this memo back in 2004---when the Washington Post broke the story about the CIA memo. Their point was that the legal analysis in this memo was essentially the same as the 2002 memo, which authorized harsh interrogation techniques by the CIA. In fact, reading it last night, I was struck by how much of it seems to have been cut-and-pasted from the 2002 CIA memo.

This memo is more expansive than the CIA memo, to be sure. It exempts military interrogators from more laws, treaties, etc than CIA--since some of those laws arguably didn't cover CIA. It is a staggering assertion of executive power. But it outlines similar defenses available to military interrogators (necessity and self defense), as well as the purported presidential override power.

But those sweeping and faulty conclusions--later described by senior DOJ official Jack Goldsmith, who disavowed them, as a "sheer exercise of power" as opposed to "reasoned analysis"---have been known and reported.

So what's new here is that we have the actual memo--we have something to hold in our hands and read--which is a sobering (putting it mildly) reminder of how aggressively the WH sought to assert its power and exempt itself from law. But the reasoning, the impact within the Department of Defense (still debated) and the result (rescinded within a year) have been known a long time.

Which makes the point: the dissidents in DOJ in 2004 were right. Had the WH released it then, this memo would not be commanding the front page of the WP and NYT today, but would have been folded into the stories that people were leaking three and a half years ago.

That also raises a question: What's next? Will we ever see the more detailed Yoo memo from 2002--still classified--in which he applied his legal reasoning to specific interrogation techniques? That memo, too, has been replaced. It's no longer relied upon--and some of the techniques he reportedly authorized (waterboarding) no longer are used. It seems it's long past time for that old legal analysis to also see the light of day.

And a final point: The attention and criticism we're hearing show how the narrative has changed since 2004.

The images at Abu Ghraib have settled into the public consciousness. We're years removed from 9/11. The Supreme Court has slapped down some of President Bush's broad assertions of power at GTMO and elsewhere in the war on terror. The military has prosecuted people for abuses. John Yoo, the author of these memos, is under investigation by DOJ's Office of Professional Responsibility for giving shoddy legal advice and could well be disbarred. And Congress is controlled by Democrats, with a weakened and unpopular President down Pennsylvania Avenue.

April 2, 2008 | Permalink | User Comments (3) | TrackBack (0)

"An Exercise of Sheer Power"

April 02, 2008 12:51 AM

A few points on the long-awaited, just-released “torture memo" authorizing harsh military interrogations:

--This is THE torture memo that civil liberties groups and Senate Democrats have been demanding for years. A similar memo leaked several years ago that authorized harsh interrogation techniques by the CIA.

--This 81-page memo used much of the same legal analysis to authorize equally severe interrogation techniques by the military. But it also was more expansive. It justified almost unchecked executive power to authorize the harshest of interrogation techniques against foreign enemy combatants.

--Both memos--the 2002 CIA memo and the 2003 military memo--were called into question in late 2003 by the new head of OLC, Jack Goldsmith, who told the military and CIA not to rely on them. They were rescinded in 2004.

---Leading critics like Marty Lederman believe that the memo released today is directly responsible for the abuses in Iraq and at Abu Ghraib.

---People had speculated for years about the contents of the memo and assumed it argued for pretty much what it does: sweeping executive power to authorize the military to use harsh interrogation techniques-- despite laws that would seemingly prevent some of those techniques.

---The memo basically claims that the President can authorize whatever interrogation is necessary to defend the country, regardless of any treaties, laws, conventions, etc. At bottom, it makes the case that military interrogators can do whatever it takes--can employ the most aggressive methods they think necessary--without facing prosecution.

---That means the government could arguably treat detainees in the most severe and brutal ways and still be within the law, so long as the interrogation was necessary for defense of America.

---The memo was highly controversial within DOJ. Goldsmith disavowed it a mere nine months after its release. He later wrote in his book The Terror Presidency that he was stunned by the "one-sided legal arguments" and "unusual lack of care and sobriety" in both of the torture memos, which he said seemed "more an exercise of sheer power than reasoned analysis."

---The memo alludes to other secret memos. You will certainly hear protest from Senate Democrats that those memos have not been released--including in the hearing this week with AG Mukasey.

---And you will hear outrage from civil liberties groups about a toothless and complacent Congress that for years has known about these secret memos--and done little to get them from the WH. Again, see Lederman on this.

More to come.

April 2, 2008 | Permalink | User Comments (37) | TrackBack (0)