Jose Rodriguez, former Director of the CIA's National Clandestine Service

Law-abiding US citizens have been appalled that Jose Rodriguez, the director of the CIA’s National Clandestine Service until his retirement in 2007, was invited onto CBS’s “60 Minutes” program last weekend to promote his book Hard Measures: How Aggressive CIA Actions After 9/11 Saved American Lives, in which he defends the use of torture on “high-value detainees” captured in the Bush administration’s “war on terror,” even though that was — and is — illegal under US and international law.

Rodriguez joins an elite club of war criminals — including George W. Bush, Dick Cheney and Donald Rumsfeld — who, instead of being prosecuted for using torture, or authorizing its use, have, instead, been allowed to write books, go on book tours and appear on mainstream TV to attempt to justify their unjustifiable actions.

All claim to be protected by the “golden shield” offered by their inside man, John Yoo, part of a group of lawyers who aggressively pushed the lawlessness of the “war on terror.” Abusing his position as a lawyer in the Justice Department’s Office of Legal Counsel, whose mandate is to provide impartial legal advice to the executive branch, Yoo instead attempted to redefine torture and approved its use — including the use of waterboarding, an ancient torture technique and a form of controlled drowning — on an alleged “high-value detainee,” Abu Zubaydah, in two memos, dated August 1, 2002, that will forever be known as the “torture memos.”

Unfortunately, for those who abhor the use of torture and respect the rule of law, President Obama refused to allow Yoo — and his boss, Jay S. Bybee — to be punished. A four-year internal ethics investigation concluded in January 2010 that Yoo and Bybee had been guilty of “professional misconduct,” which would have led to professional sanctions, but a senior DoJ fixer, David Margolis, was allowed — or encouraged — to override those conclusions, stating instead that both men had, understandably, been under great pressure following the 9/11 attacks, and had only exercised “poor judgment,” which was the equivalent of nothing more than a slap on the wrist.

No one bothered mentioning that Article 2.2 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the US became a signatory under Ronald Reagan, declares: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

And so, last Sunday, Jose Rodriguez was allowed to undertake his own redefinition of torture, essentially unchallenged, and on mainstream TV. With a disturbingly macho presentation that left Charles Pierce of Esquire “pretty convinced that Rodriguez is both a sociopath and a maniac,” as well as a war criminal, he brushed off criticism of the use of torture by saying, “We made some al-Qaeda with American blood on their hands uncomfortable for a few days, but we did the right thing for the right reason. The right reason to protect the homeland and to protect American lives.”

As Amy Davidson noted in the New Yorker, he also “bragged about its use in proving the manhood of the torturer,” stating, “We needed to get everybody in government to put their big boy pants on and provide the authorities that we needed,” and “talked as if torture were an expression of strength, rather than momentary domination masking the most abject moral and practical weakness.” For Glenn Greenwald, the reference to “big boy pants” exposed “a whole new level of psychosexual creepiness.”

On specific techniques, Rodriguez defended the use of waterboarding by saying, of Khalid Sheikh Mohammed, who was subjected to waterboarding 183 times, “I don’t know what kind of man it takes to cut the throat of someone in front of a camera like that [a reference to KSM's unproved confession that he personally killed US journalist Daniel Pearl], but I can tell you this is probably someone who didn’t give a rat’s ass about having water poured on his face.”

He also defended the use of physical violence and nudity by pointing out that “[t]he objective is to let him [the detainee] know there’s a new sheriff in town and he better pay attention,” compared sleep deprivation to “jet lag,” and, reflecting on the use of “stress positions” over many hours, said, “I was thinking about this the other day. The objective was to induce muscle fatigue, and most people who work out do a lot more fatiguing of the muscles.”

At another point in the interview, Rodriguez also made reference to the psychologists — including James Mitchell and Bruce Jessen — who had worked on the US military’s program for using torture to train US personnel to resist interrogation if captured by a hostile enemy, which was reverse engineered and provided the basis of the torture program in the “war on terror.” Their particular contribution was to stress that detainees must be broken down to a state of “learned helplessness” (a concept conceived by US psychologist Martin Seligman in the 1960s), in which all resistance is futile, and the detainee becomes completely dependant on his interrogators. Speaking of this, Rodriguez stated, “This program was about instilling a sense of hopelessness and despair on the terrorist, on the detainee, so that he would conclude on his own that he was better off cooperating with us.”

To be spouting all of the above on mainstream TV without, essentially, any comeback from the host, Lesley Stahl, or from those who should be enforcing America’s obligations to prosecute torturers, is depressing enough, but it was not all that was wrong. Rodriguez also spoke openly of the crime for which he is most generally known — the destruction of 92 videotapes that contained the “interrogations” in Thailand of Abu Zubaydah and Abd al-Rahim al-Nashiri, another “high-value detainee” who was waterboarded. As Glenn Greenwald explained last week:

At the time the destruction order was issued, numerous federal courts — as well as the 9/11 Commission — had ordered the US Government to preserve and disclose all evidence relating to interrogations of Al-Qaeda and 9/11 suspects. Purposely destroying evidence relevant to legal proceedings is called “obstruction of justice.” Destroying evidence which courts and binding tribunals (such as the 9/11 Commission) have ordered to be preserved is called “contempt of court.” There are many people who have been harshly punished, including some sitting right now in prison, for committing those crimes in far less flagrant ways than was done here. In fact, so glaring was the lawbreaking that the co-Chairmen of the 9/11 Commission — the mild-mannered, consummate establishmentarians Lee Hamilton and Thomas Kean — wrote a New York Times Op-Ed pointedly accusing the CIA of “obstruction” (“Those who knew about those videotapes — and did not tell us about them — obstructed our investigation”).

As with John Yoo and Jay S. Bybee, Rodriguez was never punished. An investigation into the destruction of the videotapes began under George W. Bush, and continued under Obama, but in November 2010 the DoJ announced that the investigation would be closed without any charges being filed. As Greenwald explained, Judge Alvin Hellerstein, who had ordered the CIA to preserve and produce the tapes, “refused even to hold the CIA in contempt for deliberately disregarding his own order.” Instead, he “reasoned that punishment for the CIA was unnecessary because, as he put it, new rules issued by the CIA ‘should lead to greater accountability within the agency and prevent another episode like the videotapes’ destruction.’”

However, while Rodriguez — like John Yoo, Jay S. Bybee and senior Bush administration officials, up to and including the President — continues to get away with his crimes, it is uncertain if, overall, the apologists for torture are winning. For them to succeed in persuading enough ordinary Americans that the law doesn’t actually apply to the US president, or anyone working for him, they also need to establish that all this torturing kept America safe, and on this front, despite their protestations over the years, they have no proof that torture worked.

In his interview, Rodriguez wheeled out the tired old lies about torture leading to the capture of “high-value detainees.” In a moment of courage, Lesley Stahl mentioned well-established claims that Abu Zubaydah’s torture had led operatives on countless wild goose chases, to which Rodriguez replied, “Bullshit. He gave us a road map that allowed us to capture a bunch of Al-Qaeda senior leaders.” In contrast, of course, former FBI interrogator Ali Soufan pointed out last year that torture did not yield important leads, and that, for example, information from Abu Zubaydeh pointing to Khalid Sheikh Muhammad’s central role in the 9/11 attacks came before the CIA’s torturers took over his interrogations.

Soufan also pointed out the difference between torturers and skilled interrogators, which CNN described as follows:

“There is a difference between compliance and cooperation,” he said. Compliance can result from torture — a detainee will do anything to make the rough treatment end. But real cooperation, says Soufan, comes from engaging the detainee after learning everything possible about them.

Torture’s apologists always want to deny the importance of skilled interrogators, who conduct extensive research on their subjects and often spend a long time building up a rapport with them. Instead, they permanently seek to reinforce the macho idiocy of their preferred approach, which is driven more by vengeance and bloodlust than anything else.

In Rodriguez’s case, he also resorted to claims that torture had led to the capture of Osama bin Laden, telling Dana Priest of the Washington Post last week, “I am certain, beyond any doubt, that these techniques, approved at the highest levels of the US government, certified by the Department of Justice, and briefed to and supported by bipartisan leadership of congressional intelligence oversight committees, shielded the people of the United States from harm and led to the capture and killing of Osama bin Laden.”

In response, Sen. Dianne Feinstein (D-Calif.), the chair of the Senate Intelligence Committee, and Sen. Carl Levin (D-Mich.), the chair of the Senate Armed Services Committee, issued a joint statement (PDF) condemning the remarks made by Rodriguez and others — including former Attorney General Michael Mukasey and former CIA director Michael Hayden — who had leapt on the bandwagon as the anniversary of bin Laden’s death approached, calling them “inconsistent with CIA records,” and “misguided and misinformed,” and expressing their disappointment that “Mr. Rodriguez and others, who left government positions prior to the OBL operation and are not privy to all of the intelligence that led to the raid, continue to insist that the CIA’s so-called ‘enhanced interrogation techniques’ used many years ago were a central component of our success.”

The statement, as the New York Times explained, “rebutted various claims that critical information about bin Laden’s courier” came from Khalid Sheikh Mohammed or from Abu Faraj al-Libi, another “high-value detainee,” seized in Pakistan in 2005, and held at Guantánamo, like Khalid Sheikh Mohammed and 13 other “high-value detainees,” since September 2006. In addition, the Times noted that the statement “rejected claims that tough treatment drew valuable information about bin Laden’s courier from a third detainee, unidentified in the statement,” but elsewhere identified as Hassan Ghul, another “high-value detainee,” seized in Iraq in 2004, who was never held at Guantánamo. The statement noted that, “While this third detainee did provide relevant information, he did so the day before he was interrogated by the CIA using their coercive interrogation techniques.”

“Instead,” the Times explained, Sens. Feinstein and Levin stated, without elaborating, that “the CIA learned of the existence of the courier, his true name and location through means unrelated to the CIA detention and interrogation program.”

This is significant, but what is needed now is for the Senate Select Committee on Intelligence to complete its comprehensive review of the CIA’s former detention and interrogation program, and publish it. As the statement also explained, “Committee staff have reviewed more than 6 million pages of records and the Committee’s final report, which we expect to exceed 5000 pages, will provide a detailed, factual description of how interrogation techniques were used, the conditions under which detainees were held, and the intelligence that was — or wasn’t — gained from the program.”

As Dan Froomkin explained in the Huffington Post, the investigation by Democrats, which has taken nearly three years, and has involved Republican lawmakers refusing to take part, “concludes that records from the Bush administration fail to support claims that torture was effective in stopping any terrorist attack,” or in leading to the discovery and killing of Osama bin Laden last year.

While people like Jose Rodriguez remain free to peddle their lies and distortions about torture, and to profit from it, America’s name not only continues to be tarnished, but the American public also continue to be shamefully misled. The long-awaited report into the CIA’s torture program should be published as soon as possible, to let people know what really happened, and hopefully to play a part in tearing down the “golden shield” that has so far protected the Bush administration’s torturers from prosecution.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Former Office of Legal Counsel Acting Chief Steven Bradbury

An article in the July-Sept. 2004 edition of the journal Military Intelligence (PDF) sheds further light on the origins of the Army Field Manual (AFM) on interrogation, FM 2-22.3, HUMINT Collector Operations (PDF), that became operational in September 2006. The AFM became the de jure standard for government interrogations in the “Global War on Terror” as a matter of policy with the passing of the Detainee Treatment Act of 2005 (DTA). Except, in 2005, the AFM was an earlier version.

By September 2006, the newer version included less restrictive controls on a number of questionable interrogation techniques, and had seriously lightened the restriction on the use of drugs in interrogations. It also included an annex to the manual, Appendix M, that was meant strictly for detainees not covered by Geneva POW protections, i.e., the detainees at Guantanamo and elsewhere. Appendix M allowed for the use of isolation, sleep deprivation, sensory deprivation (as a “field expedient” method), and anticipated at least some use of environmental and diet “manipulations.”

But back in Summer 2004, Command Sergeant Major Lawrence J. Haubrich, U.S. Army Military Intelligence Corps, writing for the journal Military Intelligence (PDF) about military ethics in the aftermath of the Abu Ghraib scandal, noted that the new AFM had already been vetted by Judge Advocate General corps’ [JAG] legal officials.

The DA [Dept. of the Army] Office of the JAG and JAG School reviewed each draft of FM 2-22.3, HUMINT Collector Operations, and each draft has been (and still is) in compliance with all Geneva Conventions, international agreements, and U.S. law. Additionally, the manual clarifies the responsibilities of HUMINT collectors and clearly delineates between HUMINT collection and other activities associated with internment operations. Finally, the manual now includes HUMINT collection techniques like strategic debriefing and elicitation as a result of the recent HUMINT and Counterintelligence Integrated Concept Team and lessons learned.

We can’t, of course, know what drafts the JAG officials had seen in 2004. We don’t know, for instance, whether or to what degree the techniques that ended up in the final document’s Appendix M were then included in the earlier drafts. The fact that the manual went through numerous iterations was noted in a couple of blog posts by Marcy Wheeler, who noted the existence of a little examined Bush-era Office of Legal Counsel memorandum (PDF) on the AFM and its Appendix M.

“The Department of Defense (“DOD”) has asked us to review for form and legality the revised drafts of the Army Field Manua1 2-22.3 (“Human Intelligence Collection Operations”), Appendix M of FM2-22.3 (“Restricted Interrogations Techniques”), and the Policy Directive regarding DOD’s Detainee Program,” Acting Attorney General Stephen Bradbury wrote in an April 13, 2006 “Memorandum for the Files.” Naturally, Bradbury found that Appendix M was “consistent with the requirements of the law, in particular with the requirements of the Detainee Treatment Act of 2005…”

Wheeler noticed a couple of years ago, however, that the description of Appendix M in the Bradbury memorandum was not congruent with the version that was ultimately published.

Speaking of all those references to specific paragraphs of Appendix M, note that Bradbury wrote this memo on April 13, 2006. Appendix M was not finalized and released until September 6, 2006. And the contents of Appendix M changed significantly between the time Bradbury wrote his approval letter and the time the Appendix was put into effect five months latter…. Even the title changed–from the plural “Restricted Interrogation Techniques” to the singular “Restricted Interrogation Technique–Separation”….

A couple of examples of some of the changes Wheeler pointed out (bold emphases in original):

Bradbury cites M-23 for language limiting the use of Appendix M only to DOD interrogators specially trained and certified to use these techniques; that language now appears in M-22, but the paragraph now authorizes properly trained contract interrogators and “non-DOD personnel” to use the techniques as well.

Bradbury cites M-21 for medical limits, including that “Detainees determined to be unfit for interrogation may not be interrogated” (note, this does not appear to be a direct citation from the appendix, but rather Bradbury’s summary of it); in the current Appendix, language on medical oversight appears in several places (M-16, M-20, M-23, M-24, M-30), but never includes an explicit restriction against using the techniques on an unfit detainee….

Then, just last August, Wheeler noted this in a legal opinion issued in the Donald Vance/Nathan Ertel lawsuit against Donald Rumsfeld for the torture they suffered when falsely held prisoners in Iraq:

The plaintiffs contend that, after the enactment of the Detainee Treatment Act, Secretary Rumsfeld continued to condone the use of techniques from outside the Army Field Manual. ¶ 244. They allege that on the same day that Congress passed the Detainee Treatment Act in December 2005, Secretary Rumsfeld added ten classified pages to the Field Manual, which included cruel, inhuman, and degrading techniques, such as those allegedly used on the plaintiffs (the plaintiffs refer to this as “the December Field Manual”). Id. The defendants describe this allegation as speculative and untrue, but we must accept these well-pled allegations as true at the Rule 12(b)(6) stage of the proceedings.8

On appeal, the plaintiffs 8 cite a newspaper article reporting on the development of this classified set of interrogation methods. See Eric Schmitt, “New Army Rules May Snarl Talks with McCain on Detainee Issue,” New York Times (Dec. 14, 2005), available at http://www.nytimes.com/2005/12/14/politics/14detain.html (last accessed Aug. 4, 2011) (“The Army has approved a new, classified set of interrogation methods… The techniques are included in a 10-page classified addendum to a new Army field manual…”). The plaintiffs contend that Secretary Rumsfeld eventually abandoned efforts to classify the Field Manual, but that the “December Field Manual” was in operation during their detention and was not replaced until September 2006, after plaintiffs had been released, when a new field manual (Field Manual 2-22.3) was instituted.

This is evidence of the likelihood that the changes to the AFM materially changed it from what the JAG officials vetted in 2004. Nevertheless, I don’t believe we have heard any protest or even a peep of protest from JAGs or other military legal sources over the AFM that was ultimately issued. The Bradbury memorandum itself is a deeply dishonest document, and relies heavily for its opinion on the earlier OLC memos by Yoo, Bybee, and Bradbury himself. In the memorandum, Bradbury cites the earlier OCL torture memos as having “previously concluded that techniques virtually identical to these [i.e., in Appendix M] are consistent with applicable U.S. legal obligations…”

He then refers readers to the July 14, 2004 testimony of Patrick F. Philbin before the House Select Committee on Intelligence (PDF). “There is no need to revisit those determinations here,” Bradbury wrote. But since the Obama administration withdrew by Executive Order (13491) “All executive directives, orders, and regulations… from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals,” where does that leave the legal assurances regarding Appendix M?

This question is of high importance as, even though numerous human rights organizations (Center for Constitutional Rights, Physicians for Human Rights, Amnesty International, Open Society Foundations, and others) have expressed grave misgivings about the abuse inherent in the current Army Field Manual instructions, the government, including key Democrats on the Intelligence and Armed Services committees, and the Obama administration itself, support the current AFM as the relevant and sufficient standard for all U.S. government military and CIA interrogations.

The inadequacy of the Bradbury memorandum in vetting “legal” techniques for interrogation, techniques said to be “Geneva compliant” is laughably belied by the fact that four of the six “restricted interrogation techniques” discussed by Bradbury are redacted in the declassified release of the memorandum. Truly, the government must think we can’t see what is right before our eyes.

Additionally, of the two techniques openly discussed — “Mutt and Jeff” (Good cop/Bad cop) and “False Flag — both were ultimately incorporated into the main text of the final AMF draft. Even though the other techniques were left unclassified in the final version, the government still censors the techniques Bradbury was describing in his 2006 memo.

In a particularly Bradburyian moment of bad conscience, or possibly only to cover his ass, the former top Bush lawyer remarks in a footnote, the “six restricted interrogation techniques” might not satisfy the DTA if used on “all DoD detainees” (italics in original). Even more: “Nor does our analysis suggest that these techniques would be lawful if used in the criminal justice process as a means of obtaining information about ordinary crimes.”

Hence we can see the result of the Bush-Gonzales-Yoo removal of the GWOT detainees from protected POW status soon after 9/11. Since Appendix M is still used in interrogations, we must conclude the Obama administration has never withdrawn the order that removed Al Qaeda/Taliban and associated prisoners from Geneva protections. Or has the administration has issued new opinions that have never been made public?

It must not matter to the Congressional oversight mavens, who have said not a peep about these issues, and continue to push the AFM and Appendix M. Nor does the proud JAG corps, who in some cases were known to protest the torture as it unfolded at Guantanamo, or the unfairness of the “Star Chamber” military commissions process, have any update I know of from their early stamp of approval given to the AFM.

One could not hope for much from a government that slaughtered two million Indochinese, and was never held accountable for that and many crimes that followed. It may be tilting at windmills to believe that the ongoing use of torture, even as one version of it is enshrined now in a formal military document, would become a matter of some social protest or media condemnation. This is a society and a nation totally adrift in a sea of moral nihilism when it comes to military and intelligence matters.

Jeffrey Kaye, a psychologist living in Northern California and a regular contributor to Truthout and The Public Record, blogs about civil liberties and issues revolving around the US government’s torture program at The Dissenter. He can be reached at sfpsych at gmail dot com. Follow Jeff on Twitter: @Jeff_Kaye

In effect, Judge Eloy Velasco sent the case back to the U.S. at the request of the Department of Justice, who argued in their March 1, 2011 letter to the judge that the U.S. is plenty interested in investigating and prosecuting torture and other war crimes. Besides the cases of CIA contractors David Passaro and Don Ayala (Marcy Wheeler discusses the Passaro case here), assorted Defense Department prosecutions of “bad apple” abusers, and the lingering Durham investigation, the U.S. representation cannot dredge up any significant criminal investigations — except one (if it is one).

The letter rogatory to the Spanish court refers to “pending federal investigations by the United States Attorneys’ Office for the Eastern District of Virginia” on “various allegations of abuse of detainees.” (p. 3-4 of letter) In addition the letter refers to “pending status and legal restrictions on the disclosure of investigative information, including rules of grand jury secrecy”. Since there has been no previous reports on current grand jury proceedings in the Eastern District on detainee abuse that I know of, is this a reference to the former cases since sent from the Eastern District by Attorney General Holder in 2009 for review by special prosecutor John Durham? Or is this something new? Have some of the cases under preliminary review by Mr. Durham now reached full investigation status?

DoJ Keeps Mum on Virginia “Pending” Investigation

In response to such questions, Dean Boyd, spokesman for the National Security Division at the Department of Justice replied to me today, “There is nothing further I can provide to you on this matter beyond what is in the document.”

Since the U.S. representation to the Spanish court was meant to convince the judge that the U.S. was serious about seeking investigations and prosecutions regarding torture, it is important to know whether a new stage in the otherwise dilatory investigations by the Obama administration, who famously has announced it would rather look forward and not backwards when it comes to investigating torture, has been hereby announced, or whether this was a con job by DoJ, describing the Eastern District grand jury as somehow still in play, when in reality, its actions on detainee abuse are non-existent, waiting for some determination of the review by Durham and his office.

Durham’s review has also been going on for over a year and a half now. But it was last June when, according to an article at Main Justice, Attorney General Holder said in remarks at the University of the District of Columbia Law School, that Durham was near the end of his preliminary review, and ”close to the end of the time that he needs and will be making some recommendations to me.” Did those recommendations include a referral back to the Eastern District for investigation and prosecution of those cases? According to the article, “several Justice officials cautioned that although Durham is nearing completion, it may take weeks or months to absorb his findings and decide what steps, if any, to pursue next.”

In a rebuttal letter to the U.S. response, the Center for Constitutional Rights (CCR), which has been championing the Spanish prosecution, appears to believe the entire episode as written up in the recent March 1 letter is a smokescreen for a whole lot of nothing. CCR wrote, “The U.S. Submission tries to hide behind the secrecy aspects of the grand jury proceedings to suggest that this investigation is a robust investigation into detainee abuse. It is notable, however, that the United States government has not spoken of any investigation in Virginia when discussing US investigations into US torture…” (PDF).

It must be galling to those looking to the Spanish court, and the hard workers at CCR especially, to see Judge Velasco so quickly take U.S. guarantees of sincerity as good coin. The U.S. had told the court, “The United States will continue to address allegations of abuse by its personnel, at home and abroad, and therefore believes it is appropriate for the Spanish courts to refer complaints related to such matters to the United States for appropriate review and action.”

CCR responded, noting the Obama administration policy of impunity for torture among mid-level and high-ranking government figures:

Through its actions and inactions, the U.S. clearly has demonstrated its unwillingness to exercise its jurisdiction to investigate and prosecute the named defendants for serious violations of international law. To refer this investigation from Spain to the United States would be to knowingly transfer this case to be closed.

Those following the torture scandal will find high irony in the U.S. claims that the DoJ Office of Public Responsiblity (OPR) and Senate Armed Services Committee (SASC) investigations, into DoJ Office of Legal Counsel malfeasance on the torture memos and on the origins and spread of the DoD torture program, respectively, are somehow indicative of U.S. good faith on investigations. The OPR report found government attorneys John Yoo and Jay Bybee to be guilty of “professional misconduct,” only to have DoJ Associate Deputy Attorney General David Margolis downgrade the OPR decision. The SASC investigation found the torture at Abu Ghraib, Guantanamo and elsewhere to be the responsibility not of “bad apples” in the military, but of high officials who promoted a program of torture and detention abuse.

It seems unlikely that the Durham investigation is actually going to bear any fruit, or that a grand jury investigation on detainee abuse is actually underway in Virginia. Sooner or later, we will know the truth. But whatever it is, the actions and policy of the Obama administration won’t fundamentally change, as high officials, such as those identified in the Spanish case — David Addington, Jay S. Bybee, Douglas Feith, Alberto R. Gonzales, William J. Haynes, and John Yoo — are not in any danger of prosecution. The U.S. has made that clear numerous times, and most lately in the response to the Spanish judge.

Update, Thursday morning, 7:25 PDT,: Center for Constitutional Rights released a statement today regarding Velasco’s dismissal of “this politically charged case,” noting that the U.S. made it clear in it’s statement that “the Department of Justice has concluded that it is not appropriate to bring criminal cases with respect to any other executive branch officials, including those named in the complaint, who acted in reliance on [Office of Legal Counsel] memoranda during the course of their involvement with the policies and procedures for detention and interrogation.”

“This decision is a cowardly political act by a judge afraid to pursue justice under his country’s own laws. He is hiding behind the fig leaf of the U.S.’s scant seven-page response, but the submission made clear the U.S. has no intention of investigating these crimes or holding higher-level officials accountable for torture. As we saw from the WikiLeaks cables, the U.S. has been pressuring Spain to drop the case and interfering with the independence of judges. A second U.S. torture case remains open in Spain after a higher court ruled it should continue on February 25. Judge Velasco asked for opposing views but then issued his decision without even looking at our detailed submission refuting the U.S. claims. We will fight this decision and continue to demand accountability for torture.”

Photo/redstarphoto.net

The weather in the Bay Area is radiant — hot, sunny, and astonishing for mid-October — and, although a ten-hour flight from London and my usual paranoia about Homeland Security could hardly be described as constituting the best recipe for a relaxing welcome to the United States, I got off the plane at Los Angeles International Airport at 2.30 pm on Saturday (while my body was telling me it was 10.30 pm) with something of a spring in my step.

I’m here for a week to take part in “Berkeley Says No to Torture” Week, an extraordinary series of events to raise awareness of the United States’ use of torture in the “War on Terror” — and, specifically, to highlight how its use is illegal, morally corrosive, unnecessary and counter-productive. The entire week is taking place in Berkeley not just because of its historical reputation as a place where people understand the difference between right and wrong, but also because one of the architects of the Bush administration’s torture program — the unapologetic John Yoo, who wrote the notorious “torture memos,” which sought to redefine torture and approved its use on prisoners in the “War on Terror” — is a law professor at UC Berkeley.

My presence here is entirely due to the fundraising efforts of the World Can’t Wait, who put together “Berkeley Says No to Torture” Week with the National Lawyers Guild (San Francisco), Progressive Democrats of America, Meiklejohn Civil Liberties Institute, National Accountability Action Network, Code Pink, FireJohnYoo.org, Berkeley Fellowship of Unitarian Universalists Social Justice Committee and the Rev. Kurt Kuhwald, and I’m delighted that the week was approved by Berkeley City Council on September 21, when a Resolution was adopted to hold a week of public educational events to educate the community about torture.

With the American public divided into those who oppose the use of torture and believe that those who authorized it should be held accountable, those who have bought the lie that it is necessary and makes us safer, and those who prefer not to think about it at all, this is an extremely important week of events, and should have a resonance that reaches far beyond the Bay Area, especially as so many excellent activists, journalists, authors, artists and psychologists are involved, including Adrianne Aron, Shahid Buttar, Marjorie Cohn, Barry Eisler, Larry Everest, Ruth Fallenbaum, Clinton Fein, Jeffrey Kaye, Mimi Kennedy, Jason Leopold, devorah major, Ray McGovern, Rita Maran, Kathy Roberts, Renee Saucedo, Peter Selz, Justine Sharrock, Cindy Sheehan, Abdi Soltani, Debra Sweet, Fr. Louis Vitale and Ann Wright.

Yesterday evening, “Berkeley Says No to Torture” Week kicked off at Revolution Books with an author event featuring myself (as the author of The Guantánamo Files) and Justine Sharrock, author of Tortured: When Good Soldiers Do Bad Things. With a very lively crowd in attendance, Justine and I ran through various aspects of the “War on Terror” — in particular, its effects on those subjected to arbitrary detention and torture in the cages of Guantánamo and elsewhere, and, through Justine’s account, its effect on the US soldiers required to implement this torture and cruelty by their political masters, who, as the Abu Ghraib scandal showed, then tried to pretend that it was the work of “a few bad apples.”

It was not, of course. The dehumanization and torture of the men and boys detained in the “War on Terror” — in Afghanistan and Iraq, at Guantánamo and in secret prisons — was directed from the highest levels of the Bush administration — by George W. Bush, Dick Cheney, Donald Rumsfeld and others — and in refusing to thoroughly address and repudiate these actions, and to hold accountable those who authorized America’s slide into barbarity, President Obama continues to send out a message that it is OK for the nation’s most senior officials to break the law so long as they leave the White House after two terms. He has also, sad to say, perpetuated many of the Bush administration’s crimes, and added some of his own, and, as part of the bigger picture, has presided over what appears to be nothing less than a battle for the soul of America, between those who embrace endless war, barbarity and torture, and those who do not.

The Bush administration talked of the “War on Terror” as a war that might last for generations. Those of us who oppose it must be aware that our struggle may also be generational, but I am pleased to note that this seemed to be appreciated by the audience at Revolution Books yesterday evening, and it was noticeable that the spirit that burns against injustice appeared to be burning more brightly than it was nearly a year ago, when I last visited the US to promote the documentary film, “Outside the Law: Stories from Guantánamo” (which I co-directed with Polly Nash), which, not coincidentally, is showing this evening, at 7 pm, at Berkeley Fellowship of Unitarian Universalists Fellowship Hall, at 1924 Cedar Street.

If you’re in the area, come along, and please see here for the full list of events this week.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

That torture has been pervasive I am persuaded of. That the bizarre torture memos crafted by John Yoo and Jay Bybee and their gang differ less than we might think from previous legal memos, laws, and treaties I accept to some extent. That the US prison and immigration systems fed into the new torture regime is beyond dispute. But Parry could have picked out many times and places to describe that did not use torture to the same extent. The racist and colonialist attitudes that Parry sees as a major support for torture are not constant. The fact that someone can make a twisted legalistic argument for torture does not make it legal beyond serious dispute. The new public acceptance and mainstreaming of torture in the United States has been a dramatic change, at least in awareness; and a dramatic change in a different direction, even as a reaction to this one, is possible.

As Parry notes, the International Covenant on Civil and Political Rights bans both torture and cruel, inhuman, or degrading treatment. If we need to clarify that this ban allows no exceptions based on time or place or citizenship or any other factor, then let us clarify that and put it into our Constitution, our treaties, and our statutes, with a requirement to prosecute every act of conspiracy to engage in any such behavior. The world order will not collapse, at least not in a bad way.

But there is a more serious problem, I think. Namely, murder seems to be advancing in the U.S. toolkit as a replacement for torture. Both tools, murder and torture, produce exactly the same amount of useful intelligence. Both tools scare the hell out of people abroad and at home. Both tools serve to teach a domestic audience that certain types of people are not fully people and cannot be dealt with humanely. Both tools help to advance the further stripping away of civil liberties through fear and terror. The goals of torture that the CIA has advanced for decades of eliminating a person’s entire consciousness and identity, the mission of placing barbarians completely under control of the empire, what accomplishes this better than murder?

Look at all the hassle our government has been through trying to legalize and justify torture, not to mention the kidnappings and imprisonments necessary to engage in torture. We’ve seen CIA agents indicted in Italy and prosecutions of high level Americans opened in Spain. Former officials are facing civil suits in the United States for damages. Who needs the headaches? The Director of National Intelligence legalized the assassination of Americans abroad, and by implication any non-Americans as well, by going to Congress in February and announcing that such crimes would henceforth be legal. Easy peasey. No fuss, no muss. And if you want some future al-Libi to tell you that some future Iraq has scary scary weapons, don’t torture him; announce that he manages the stockpile and then put a bullet in his head.

President Obama has ordered the murder of American citizen Anwar al-Awlaki. Like the innocent but tortured Abu Zubaydah (innocent at least of any of the crimes he was accused of), Awlaki is now the mastermind terrorist of the universe. And once he’s dead, who’s to say he wasn’t? Who can demand a trial or access to documents? He’ll be dead. See the beauty of it?

If the top mastermind is in Yemen, what the hell are we doing building a quagmire in Afghanistan? Don’t ask. But notice this: we have dramatically increased the use of missile strikes to assassinate in Afghanistan and Pakistan. And we have increased the use of murderous night-time raids to such an extent that we now kill more civilians in that way than we do with drones. They’re the “wrong people,” or neighbors who came to help, or family members clinging to loved ones. Sometimes they’re young students with their hands tied behind their backs. Accidents will happen. But no U.S. officials’ future book tours are going to be interrupted by protesters, since there’s no torture involved. Civilization is on the march!

David Swanson is the author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press.  You can order it and find out when tour will be in your town: http://davidswanson.org/book

I gave Yoo every opportunity I could to place a limit on presidential power.  Can a president shoot missiles in the United States?  Can a president drop nukes in the United States?  Yoo refused to concede any limits.

Yoo used the example of shooting down one of the airplanes on 9-11 to assert that a president could indeed use drones to shoot missiles at suspected enemies within the United States, assuming of course that the president proclaims it to be “wartime.”

So, can a president drop nukes in the United States?  Yoo refused to deny a president even that power.  He chose to respond by focusing on the example of Hiroshima, arguing for Truman’s rightful power to do what he did, but my question had involved dropping nukes in the United States, and Yoo’s answer made clear that he acknowledged no limitation on that power.  Watch the video below.

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

Photo/Wikimedia

Sunshine Week, according to its website, is “a national initiative to open a dialogue about the importance of open government and freedom of information. Participants include print, broadcast and online news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know.”

The University of Virginia here in Charlottesville is doing its part by hosting book tour stops for the chief author of the worst secret laws ever established. John Yoo will be speaking at the Miller Center and at an event hosted by the Federalist Society. Yoo will be speaking in support of unlimited presidential power, including the power to create secret laws.

When we think of government openness, we usually think in terms of allowing the public to verify that the government is properly executing the laws. There are no provisions for allowing the public to request access to know what the laws are, because laws are by definition public. Unless, that is, the laws are memos written by people like John Yoo at the request of a president.

Why would such memos be kept secret? Because sometimes the purpose of the memos is to legalize blatant crimes, to overturn actual laws with secret laws — something a U.S. president does not have a constitutional right to do, no matter whether it’s “wartime” or not. News of presidential “laws” legalizing obvious crimes could stir up concerns. Better to keep them in reserve as a legal defense if needed. In fact, Yoo wrote memos to legalize some crimes that had already occurred. But who was going to know which came first, the crime or the “law”, as long as it all stayed secret?

Yoo legalized aggressive war at the whim of any president, brushing aside the US Constitution, the War Powers Act, and the UN Charter, creating a new (secret) law in their place. Yoo legalized imprisoning people without any due process, tossing out habeas corpus and half the Bill of Rights. He legalized warrantless spying and torture, in blatant violation of real laws, public laws, laws passed by the legislative branch of the government and placed in the US Code of Law.

Yoo used shoddy scholarship, amateurish lawyering, and absurd reasoning to “legalize” just about whatever the president wanted legalized. Yoo explains now that he was hurried and pressured. Yet he does not retract any of his claims of presidential power. In fact, Yoo has made clear that he wants no limits whatsoever on presidential power. A president, in Yoo’s view, can nuke a city if he is so inclined, and another and another until the world is gone. That’s his right. So, of course, he can spy without warrants, torture, and anything else he likes, regardless of how many precedents the memos overlook or misconstrue.

Bush might not have attacked Iraq without Yoo’s work to secretly “legalize” that invasion. A million Iraqis could still be alive if not for what Yoo and his colleagues did. And had the public been permitted to see what they were doing, we would not have allowed it.

Friday will be Yoo’s second appearance at the Miller Center, which claims they invite him to balance out those who speak against him. Yet the Miller Center has never, to my knowledge, invited a member of the ANTI-war movement to speak.

On Friday Cindy Sheehan (Peace of the Action), Susan Harman (National Accountability Network), Ray McGovern (Veteran Intelligence Professionals for Sanity), Charlotte Dennett (Robert Jackson Steering Committee), Mike Ferner and Ann Wright (Veterans for Peace), Debra Sweet (World Can’t Wait), Shahid Buttar (Bill of Rights Defense Committee), Nancy Mancias (CODE PINK: Women for Peace), Dahr Jamail (journalist), and Mark Lane (attorney), will be leading an anti-war march and a rally to protest John Yoo’s defiance of the rule of public law. We think we’ll be adding more to Sunshine Week than Yoo will. Join us: http://hoosagainstyoo.org

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

Of course, it’s almost taboo among the most serious peace and justice advocates to cite positive precedents from Jefferson, because he was a slave owner. But Jefferson’s views on the structure of a government don’t actually become less admirable (or more) when we remember the horrors he inflicted on the people at Monticello.

On the other hand, protesting someone like John Yoo (a march and rally are planned) is almost verboten among the comfortable liberals in Charlottesville, because of a Jeffersonian view of free speech as absolutist as the ACLU’s defense of campaign bribery. “We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it,” quoth Jefferson.

Yet this admirable line of thought came from the same enlightenment that gave us this one: “Man will never be free until the last king is strangled with the entrails of the last priest.” In fact, the author of the Declaration of Independence, that lengthy list of crimes committed by King George, would not have approved of the College of William and Mary inviting the King to lecture on law. Jefferson and his fellow revolutionaries would have sought to kill or imprison such a lecturer. Translated into an age of nonviolence, they would have PROTESTED him.

John Yoo’s book “Crisis and Command” discusses Jefferson at length and devotes a chapter to his presidency. Yoo finds much to lament in Jefferson’s opposition to expanded presidential power, and much to praise in Jefferson’s expansions and abuses. I would reverse Yoo’s attitudes, praising what he laments and denouncing what he praises. But I don’t argue with his basic outline of the facts of the matter. I argue with the further expansions Yoo assisted in during his employment at the Justice Department, expansions that went far beyond those of Jefferson and did so in violation of a body of laws and treaties that did not exist in Jefferson’s day.

Jefferson thought a president should only veto a bill if he believed it to be unconstitutional. Today presidents routinely veto bills they simply disagree with. Or they alter bills with signing statements or with memos drafted by people like John Yoo. Or they simply violate the law. While Jefferson did not casually veto or alter laws with signing statements or memos, he did choose to simply not enforce laws based on his interpretation of their unconstitutionality. He claimed equal power with the Supreme Court in making such interpretation, something presidents since him — including Bush — have not tended to assert.

Jefferson favored the frequent use of impeachment, but not purely to protect the legislative branch, rather to advance the interests of a political party led by a president. Jefferson refused to comply with a court subpoena. He launched military operations without Congress, including covertly. In some cases he took unconstitutional actions while Congress was not in session, a situation that does actually provide him with an excuse that presidents don’t have today. In other cases, Jefferson simply acted outside the constitution, claiming to represent the will of the nation. The action Yoo seems to admire most for its brazen lawlessness is Jefferson’s purchase of Louisiana. But Yoo also seems to recognize the immense impact Jefferson had in developing a two-party system and the notion of a president possessing a national policy mandate.

Yet Jefferson was no Dick Cheney. Claiming to act, and plausibly acting, on behalf of majority opinion (or majority wealthy white male opinion) is — at least in retrospect — a dangerous precedent for an official who was supposed to execute the will of Congress. But the Bush-Cheney White House claimed the power to act without even a pretense of acting on behalf of the nation’s people. They were acting simply on behalf of Bush and Cheney. Jefferson worked to limit or avoid a standing military.

He acquired territory by purchasing it. Yoo praises Jefferson for purchasing Louisiana because it was an act of presidential assertiveness. And Yoo blames President James Madison for allowing Congress to lead him into a disastrous invasion of Canada, because Madison was following Congress, just as the Constitution he’d played a central role in writing required him to do. What Yoo misses is that negotiations tend to work and wars tend to be catastrophes no matter who makes the decisions. In comparison with Bush and Cheney, Jefferson was an opponent of the greatest evil there is: war. The Congressional Research Service just released a list of hundreds of overt U.S. military actions. Most of them have been launched by presidents. Most of them have been murderous and criminal catastrophes.

Yoo wrote memos that were treated as secret laws by a president. His memos authorized aggressive war and torture, which have been banned by international treaty and domestic laws since Jefferson’s day. Jefferson honored treaties. Yoo does not. Jefferson made exceptions to his adherence to laws. Yoo proclaims presidential liberty to openly ignore all laws. Yoo has famously gone so far as to argue that a president can crush testicles, massacre villages, or nuke cities. Nuclear weapons and most other weapons of war did not, of course, exist when Jefferson went after pirates without congressional authorization. The level of destruction in war was as small then as the body of law restricting it. Yoo lives in an age of far more evil wars, yet allows no limits on presidential war making. A president could nuke city after city until none remained, according to John Yoo’s theories, which I find it very hard to imagine Jefferson accepting or even hypocritically acting upon.

When pressed, Yoo recognizes the power of Congress to stop a president through defunding or impeachment. But Yoo has never, to my knowledge, opposed Bush’s unconstitutional spending of funds for uses other than those for which they were appropriated. And crimes and abuses must be crimes and abuses even prior to an impeachment and conviction. The partisan system developed during Jefferson’s presidential election makes presidential impeachments very unlikely. In fact, they are only possible when the Congress is controlled by the other party and that other party has not become complicit in the president’s crimes or abuses. The same Justice Department that Yoo worked for argued that a president can violate a law until the Supreme Court says otherwise, even though the Supreme Court cannot possibly rule in a timely manner on every law passed by Congress, and even though the Supreme Court is also corrupted by the party system.

While Jefferson advanced the shift of power from Congress to the White House, not to mention that he owned slaves and held every power over them that the United States military holds over prisoners in Bagram, there is only one thing that it is clear to me Jefferson would have done upon learning that John Yoo had been invited to speak at the University of Virginia. Jefferson would have demanded the resignation of the university president.

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

This report was originally published on Truthout.org and is being republished here under a Creative Commons license.

The Department of Justice has not yet finished an internal review of the report prepared by an agency watchdog that probed several legal opinions John Yoo and two other former attorneys who worked at the DOJ’s Office of Legal Counsel (OLC) wrote for the Bush White House on torture, an agency spokeswoman said Wednesday.

“The [review] process is ongoing and we hope to have [the report] complete and released soon,” Justice Department spokeswoman Tracy Schmaler told Truthout.

The Office of Professional Responsibility (OPR) completed the report in December 2008 following a five-year investigation.

Adding to the delay in releasing the report (Attorney General Eric Holder testified before Congress last year that the report was complete and was expected be released by end of November), according to several legal sources knowledgeable about the review process, were additional responses to its conclusions that Yoo filed via his attorney, Miguel Estrada. The legal sources spoke on the condition of anonymity because the report is still classified.

If that’s true, the career prosecutor charged with reviewing the report would have to carefully review Yoo’s responses and, as Holder testified last November, “react to those responses” as well.

Estrada told Truthout he was bound by a confidentiality agreement he entered into with the Justice Department and could not comment on the claims that he submitted another set of responses on behalf of Yoo.

Schmaler said she could not comment on the rumors. But she pointed to the Office of Professional Responsibility’s “post investigation” guidelines, which details the process that takes place during the course of such investigations.

The big question is will the report be released on or before January 15?

That’s the date lawyers representing alleged “dirty bomb” plotter Jose Padilla are due to file a response to the government’s friend-of-the-court-brief, which recommended that a lawsuit Padilla filed aginst Yoo over the legal advice he gave to the Bush White House that resulted in Padilla being tortured be tossed out because the OPR report would address the issue that Yoo provided the White House with poor legal advice.

“In addition to potential discipline by a state bar, Department of Justice attorneys are also subject to investigation by the Office of Professional Responsibility (“OPR”)… OPR and the Office of the Inspector General have broad investigatory powers and can recommend discipline and even criminal prosecution, where appropriate, the government’s December 3, court filing states.

As blogger Marcy Wheeler pointed out earlier this week, “At the rate we’re going, Padilla’s lawyers will have to file their response to the boast that OPR can offer adequate discipline in cases like this, without yet learning what OPR did in this particular case.”

Believing that the report is being suppressed, a coalition of attorneys, journalists and activists to file a Freedom of Information Act request Thursday with the Justice Department to obtain a copy of the report and other documents.

Upcoming Hearings on Torture?

In an interview last month, Christopher Anders, the ACLU’s senior legislative counsel, said Senate Judiciary Committee Chairman Patrick Leahy and his counterpart in the House, John Conyers, have both said they intend to hold hearings next year when the OPR report is released.

Leahy and Conyers “said a number of times that they would have hearings when the OPR report comes out,” Anders told me. “It would be a big surprise if they didn’t conduct hearings. We fully expect them to hold hearings.”

Erica Cabot, a spokeswoman for Leahy, said it would be premature to discuss any plans for possible future hearings until the report is released.

“Adverse Findings”

The Justice Department was prepared to publicly release the report last January. But it underwent revisions after then-Attorney General Michael Mukasey and his deputy, Mark Filip, demanded that Yoo, Bybee and Bradbury be given the chance to review and respond to the findings.

“In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office,” said Assistant Attorney General Ronald Weich’s May 4, 2008 letter to Democratic Senators Dick Durbin and Sheldon Whitehouse. “A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else.”

Legal sources familiar with an early draft of the report said it concluded that some of Yoo and Bybee’s legal work for the Bush White House rose to the level of professional misconduct and therefore warranted a disciplinary referral state bar officials. These sources said they were unaware whether OPR reached the same conclusions about Bradbury’s legal work.

Weich’s letter noted that if the appeals filed by Yoo, Bybee and Bradbury resulted in a rejection of OPR’s findings by the “career official” reviewing the document then no such referral would occur.

“Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made,” Weich’s letter said. “This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process.”

Weich added that the initial draft of the report was also shared with the CIA for a “classification review,” and the agency, having reviewed the findings, “requested an opportunity to provide substantive comment on the report.”

Durbin and Whitehouse, in a statement last May, said they “will be interested in the scope of the ‘substantive comment’ the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter.”

A CIA spokesperson did not return calls for comment about the agency’s response to the report.

Weich’s letter to Durbin and Whitehouse was sent in response to queries by the senators last March about revelations that Bradbury oversaw OLC’s review of the report in late 2008, despite the fact that he was a subject of OPR’s investigation and was also acting head of OLC at the time.

Three months before Bush exited the White House, Bradbury, in a “memorandum for the files,” renounced several legal opinions drafted by Yoo and Bybee.

Bradbury attempted to justify or forgive Yoo’s controversial opinion by explaining that it was “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”

Bradbury wrote another memo five days before Bush left office last January, in which he once again repudiated Yoo’s legal opinions. It would appear that this memo was in response to the OPR report. Bradbury said in the Jan. 15 memo that the flawed theories by Yoo in no way should be interpreted to mean that Justice Department lawyers did not “satisfy” professional standards.

Durbin and Whitehouse said they believed Bradbury’s “memorandum for the files” made it a “conflict-of-interest” for him to participate in the formal review process.

But Weich said, “Because Mr. Bradbury’s participation in that process was transparent, OPR advised that it can evaluate the OLC response with the knowledge of Mr. Bradbury’s participation just as it would evaluate a response from anyone whose actions were within the scope of OPR’s investigation.

“Therefore, OPR does not believe that Mr. Bradbury’s participation in the OLC response was improper,” Weich said.

Rather, Bradbury wrote, “In the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation.”