Friday, February 19, 2010

DoJ's OPR Report Released on Yoo, Bybee Torture Memos (and David Margolis's Whitewash Memo, too)

Attorney General Eric Holder has ordered the release of the report of the Office of Professional Responsibility's (OPR) investigation into the culpability of the Office of Legal Counsel's activities in constructing the torture memos of August 2002 and beyond. These memos, written by John Yoo, Jay Bybee, Stephen Bradbury and others were rescinded in whole by Barack Obama soon after becoming president.

The OPR release is both interesting and frustrating. It contains both the first draft of the report, the second draft, the final report itself, and the memorandum for Holder written by David Margolis, which, as a Newsweek report predicted, partly exonerated Yoo and Bybee from charges of professional misconduct found in the OPR report itself, reducing their culpability to the much lesser charge of "bad judgment." (I wrote about Margolis's history at DoJ in running point guard on such cover-ups in an article at Firedoglake/The Seminal on a few weeks back. Scott Horton at Harpers also wrote his own article on some of Margolis's checkered career.)

Marcy Wheeler is currently holding forth, with her distinguished crew of commenters, in an open thread on the report over at Emptywheel/FDL. My H/T for the links above for the report go to her; and she also has links to the official replies of both Yoo and Bybee to the reports earlier drafts.

My frustrations regarding the release center around the amount of redactions. Many, if not most of them center around discussions or interactions concerning the CIA. It's clear the CIA played a central role in the vetting of the supposed safety of the SERE-centered torture techniques. CIA psychologists are said to have made representations regarding the safety of the "enhanced interrogation techniques," and solicited similar statements from SERE's parent agency, JPRA. CIA-contract psychologists, including James Mitchell and Bruce Jessen, apparently ran the torture interrogations in the Spring/Summer 2002, for which the initial torture memos were written as after the fact justifications. One thing the OPR report does is corroborate that such "EIT" interrogation took place before the memos were written.

What is not well-known is that both government military research, funded through Ft. Detrick, with the participation of CIA researchers, were involved in studying the "uncontrollable stress" of SERE-style torture in 2002. The actual deleterious effects of such torture were well-known to the military and CIA, who either kept such information from the OLC attorneys (which seems less likely now, given the amount of interaction between Yoo and the others with CIA and military attorneys like William Haynes), or lied about it to them, or they all collaborated in submarining such information.

When CIA psychiatrist-expert Charles A. Morgan (one of the key researchers in the Ft. Detrick study mentioned above) denied that his research was for anything but PTSD studies, and also denied links to the CIA, going so far as to scrub such attributions from his Wikipedia page, he didn't count on the fact that online references to his military research, which was not related centrally to PTSD, was available (see long PDF), or that an early draft version of the Intelligence Science Board's Educing Information report specifically lists him with CIA organizational ties, listed as part of the study's twelve man committee of interrogation "experts." (These are documents in my possession, not currently online.) This is a story I will be telling in full in the very near future.

Center for Constitutional Rights has released a statement on news of the report's release, and makes the following points:
In response to the release of the Justice Department’s Office of Professional Responsibility (OPR) report on the conduct of the lawyers involved in crafting and providing legal cover for the illegal torture program, the Center for Constitutional Rights issued the following statement:

At first look, the long-awaited OPR report 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. The report underscores the need for a more thorough investigation that has more scope and powers to follow the evidence.

Among others, the lawyers John Yoo, Jay Bybee and Steven Bradbury have caused incalculable damage to our country and to thousands of victims as a result of the twisted legal advice they provided while at the Office of Legal Counsel. The OLC opinions were intended to provide legal cover for what everyone knew was illegal conduct. They advised the establishment of the prison at Guantanamo outside the law through the purposeful evasion of the Geneva Conventions and they advised the creation of a secret detention network for “enhanced interrogations” in flagrant violation of domestic and international law. Once unthinkable, they authorized and justified torture, rendition and secret CIA detention, often in a hands-on manner so detailed that it gives the lie to the notion they were giving abstract legal advice rather than making policy decisions to use torture

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.

While the OPR should have recommended state bar associations professionally sanction the attorneys for ethics violations, and it is clear these men should be disbarred and prevented from ever practicing law again, 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. We further call on the state bar associations, who are in no way bound by the conclusions of the report, to sanction the torture lawyers.

In addition, we demand that the OLC and CIA release the all of the records CCR is seeking with co-counsel through the Freedom of Information Act (FOIA) in Amnesty International, CCR, et al. v. CIA, about the CIA’s torture, rendition and secret detention practices. The time has come for the public to see all of the documents that show the role these lawyers played in fashioning one of the most shameful sets of practices ever to emanate from Washington. A review of the OPR Report further confirms the illegal nature of the CIA’s practices; the government cannot abuse the FOIA to conceal these illegal or embarrassing government actions.

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