Former Office of Legal Counsel Acting Chief Steven Bradbury

In a report I published April 5, I described the years-long controversy within the military services over the use of waterboarding in SERE training, which left the Navy SERE school in North Island, California the last remaining survival school to use the technique on its students. The executive authority for SERE, the Joint Personnel Recovery Agency, had argued for its elimination as as an unsafe technique with deleterious psychological and possibly physiological consequences upon trainees, causing them to be “psychologically defeated.” The North Island school ended use of waterboarding in November 2007.

In the May 10, 2005 “techniques” memorandum by Steven Bradbury to CIA Senior Deputy Counsel, John Rizzo, Bradbury mentioned the waterboarding issue at the SERE schools, in a footnote (H/T Marcy Wheeler). “We understand that the waterboard is currently used only in Navy SERE training,” Bradbury wrote. He explained that the CIA Inspector General report on the Agency’s interrogation program mentioned that “individuals with authoritative knowledge of the SERE program” believed that waterboarding had been excluded from most of the SERE schools “because of its dramatic effect on the students who were subjects.”

Despite the presence of this unexplained “dramatic effect,” Bradbury continued:

We understand that use of the waterboard was discontinued by the other services not because of any concerns about physical or mental harm, but because students were not successful at resisting the technique, and, as such, it was not considered to be a useful training technique.

Bradbury received his assurances from the CIA’s Office of Medical Services (OMS), who he quotes as saying “[w]hile SERE trainers believe that trainees are unable to maintain psychological resistance to the waterboard, our experience was otherwise.” OMS soothingly assures that “Some subjects can unquestionably withstand a large number of applications,” with no harm greater than a “strong aversion to the experience.” The testimony of the “SERE trainers” is blithely brushed aside, and no questions are asked about what it means to be “unable to maintain psychological resistance.”

Even more, Bradbury and OMS’s assurances don’t correspond with the evidence from JPRA internal documents, which describe the use of waterboarding as leaving students “psychologically defeated” and impaired in the ability to develop “psychological hardiness.” Furthermore, as a Truthout article last month notes, the discontinuance of waterboarding was not due to mere failure at resistance to the technique. They were finding measures of physiological harm.

The Navy SERE school in Brunswick, Maine, discontinued the use of waterboarding in its training curriculum after a SERE psychologist found via “empirical medical data … elevated levels of cortisol in the brain stem caused by stress levels incurred during water boarding.” Cortisol is a stress hormone released by the adrenal glands as part of the body’s fight-or-flight mechanisms. Excess cortisol can lead to chronic stress, impaired cognitive abilities, thyroid problems, suppressed immune functioning, high blood pressure, and other health problems.

The origins of misinformation about waterboarding go back to the original Yoo/Bybee memos in August 2002. Emptywheel has been following the story around the machinations surrounding the composition of these memos pretty closely (see here, and here, and here). In the memo to Rizzo on the interrogation of Abu Zubaydah, John Yoo writes:

With respect to the waterboard, you have also orally informed us that the Navy continues to use it in training. You have informed us that your on-site psychologists, who have extensive experience with the use of the waterboard in Navy training, have not encountered any significant long-term mental health consequences from its use…. JPRA has likewise not reported any significant long-term mental health consequences from the use of the waterboard.

Yoo explains the cessation of waterboarding training as due to the fact “it was so successful as an interrogation technique,” and not because of any concerns over harm from its use. This is, we know now, plainly not the case. Is it any surprise that the Navy SERE psychologists clung to their use of waterboarding, and that Yoo and the CIA found a willing group of practitioners to give them the fairy tale story they desired? The use of anecdotal statements from biased participants does not add up to due diligence or reliance on experts.

In fact, no long-term study on the effects of waterboarding, or SERE techniques in general, has ever been made, or at least made public. If there were such a study, and its results backed the contentions of Yoo and the CIA, you can be sure we would have heard of it. Instead, we have the statements of JPRA professionals that the use of waterboarding in SERE training was risky, potentially dangerous, and produced a condition known as “learned helplessness.” My next article will expand on what the dangers of learned helplessness entail from a psychological and physiological standpoint.

Next: “Learned Helplessness” and the waterboard

This report was originally published at Firedoglake.

Jeffrey Kaye is a psychologist living in Northern California who writes regularly on torture and other subjects for The Public Record, Truthout and Firedoglake. He also maintains a personal blog, Invictus. His email address is sfpsych at gmail dot com

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.”

photo by johnnyalive via flickr

A close reading of the CIA’s Inspector General Report and the Senate Intelligence Committee’s narrative on the Office of Legal Counsel (OLC) torture memos reveals a more detailed picture of the CIA’s involvement in the construction of those documents.

What emerges is consistent with recent charges of CIA experimentation on prisoners, and of the overall experimental quality of the torture program itself.

It also points to a crucial piece of “analysis” by the CIA’s Office of Technical Services, a memo which may or may not include damning medical and psychological evidence of the damaging effects of SERE techniques, and which the IG report maintains was utilized “in substantial part” in the drafting of the August 1, 2002 Bybee memos. If one is looking for a smoking gun in the torture scandal, in my opinion, one doesn’t have to look much further than this.

The quote below is from the April 22, 2009 Senate Intelligence Committee narrative of the Office of Legal Counsel’s opinions on the CIA’s interrogation program. Please keep in mind as you read the quote and the added bolded emphasis, that recent documentation has shown that for years the CIA and Special Operations had researchers studying the effects of SERE training.

Moreover, the research had been published in peer-reviewed journals, in part because the research was also meant to add to the psychiatric community’s understanding of the mechanisms of Post-traumatic Stress Disorder. Some of the research had also been published in the June 2000 edition of Special Warfare, “The Professional Bulletin of the John F. Kennedy Special Warfare Center and School.”

So, keeping this all in mind, consider the following from the Intel Committee’s narrative (emphasis added):

According to CIA records, because the CIA believed that Abu Zubaydah was withholding imminent threat information during the initial interrogation sessions, attorneys from the CIA’s Office of General Counsel met with the Attorney General, the National Security Adviser, the Deputy National Security adviser, the Legal Adviser to the National Security Council, and the Counsel to the President in mid-May 2002 to discuss the possible use of alternative interrogation methods that differed from the traditional methods used by the U.S. military and intelligence community. At this meeting, the CIA proposed particular alternative interrogation methods, including waterboarding.

The CIA’s Office of General Counsel subsequently asked OLC to prepare an opinion about the legality of its proposed techniques. To enable OLC to review the legality of the techniques, the CIA provided OLC with written and oral descriptions of the proposed techniques. The CIA also provided OLC with information about any medical and psychological effects of DoD’s Survival, Evasion, Resistance and Escape (SERE) School, which is a military training program during which military personnel receive counter-interrogation training.

While the fact that the OLC accepted at face value the CIA’s statements regarding the safety or the effects of the interrogation procedures they were proposing is no surprise to anyone who has read the torture memos — and evidence of the unprofessionalism and bias of the memo’s authors — the degree to which the conspiracy (by CIA or OLC, or both) to withhold evidence of the real effects of the “Enhanced Interrogation Techniques” (EITs) by the CIA has never been made more concrete than now.

To my knowledge, we do not have the specific document wherein the CIA provides the “medical and psychological effects” of SERE school. I have been told that this document is still classified. But it seems possible that the CIA did pass on the details of the research that was available to it, including the debilitating effects of SERE techniques, which sent stress hormone levels, according to one research report, “some of the greatest ever documented in humans.” Another report cited “neuroendocrine changes… [that] may have significant implications for subsequent responses to stress.”

One of the authors of these reports, Charles A. Morgan, III, M.D., who has identified himself in certain settings as a “Senior Research Scientist” on the CIA’s Behavioral Science Staff, has criticized my coverage of CIA experiments on the psychological and physiological effects of SERE training upon human subjects. While he could not specify what aspects of this coverage he felt were “inaccurate and misleading,” he did insist:

The research conducted by our research team at the National Center for Post Traumatic Stress Disorder is not, and never has been, conducted for any other purpose than to help us understand the pathophysiology of stress disorders and we might better help in the treatment of veterans.

In making his mea culpa, Dr. Morgan never mentions that some of this research was funded (over $400,000) by the Army and the Office of Naval Research. He doesn’t mention his acquaintance with “great people who do military interrogations.” He also forgets to cite his book contribution, where he states (emphasis added):

The SERE training environment affords the military services the opportunity to collaborate with various other government agencies in exploring old and new techniques in gathering human intelligence.

Of course, he neither confirms nor denies his affiliation with the CIA, an affiliation which I have traced to the CIA’s Science and Technology directorate, through his association (large PDF) with the Intelligence Technology Innovation Center, which is “a research organization under the CIA’s authority” that “answers directly to the CIA’s Science and Technology directorate.”

But most of all, Dr. Morgan’s arrows fall way short of his target, as I have never accused him of personal involvement in the reverse-engineering of SERE techniques for use in the torture program. What is disturbing is his seeming lack of concern over the possiblity that the research he helped conduct was either used to further experiments upon torture victims in the CIA’s clandestine prisons, or contrariwise, was withheld from Office of Legal Counsel lawyers who relied upon CIA advice concerning the effects of techniques derived from the SERE schools.

What is indisputable is that by virtue of his position, Dr. Morgan had access to CIA officials just at the time that another department of the CIA, one to which he is affiliated, was, according to the CIA’s own Office of Inspector General Report (large PDF) involved in vetting the SERE techniques for use in interrogations. The other department was the Office of Technical Services (OTS), part of the CIA’s Science and Technology Directorate. This, by the way, is the same division that was responsible for the MKULTRA experiments of the 1950s and 1960s. From the OIG report:

…CTC [CIA's Counter-Terrorism Center], with the assistance of the Office of Technical Service (OTS), proposed certain more coercive physical techniques to use on Abu Zubaydah….

CIA’s OTS obtained data on the use of the proposed EITs and their potential long-term psychological effects on detainees. OTS input was based in part on information solicited from a number of psychologists and knowledgeable academics in the area of psychopathology….

OTS also solicited input from DoD/Joint Personnel Recovery Agency (JPRA) regarding techniques used in its SERE training and any subsequent psychological effects on students. DoD/JPRA concluded no long-term psychological effects resulted from use of the EITs, including the most taxing technique, the waterboard, on SERE students. The OTS analysis was used by OGC [DoD's Office of General Counsel] in evaluating the legality of techniques.

OTS’s solicitation of information on SERE from JPRA elicited some sort of feedback from JPRA, which supposedly told OTS that SERE training caused no long-term effects. The IG Report does not say if this was in the form of a memo and only speaks of OTS’s analysis. In any case, we should not confuse any OTS “analysis” with the information provided by JPRA itself to the Office of General Counsel, which produced a number of memorandum and attachments in late July 2003. Marcy Wheeler has been analyzing the timing of these JPRA items, including the fact that one of these key documents is missing.

The CIA IG Report is relating a story whose emphasis differs from that produced in the narrative of the Senate Armed Services Committee investigation (PDF) into SERE torture. In the latter, JPRA is the main culprit in providing cover for the supposed safety of using SERE techniques. Yet, in the OIG account it looks like the CIA used DOD/JRRA as a cover for the safety of techniques that it knew were in fact harmful from their own analysis of the “data.” Moreover, it was the OTS analysis that was used — “in substantial part” — as the basis of the August 1, 2002 memo approving the “Enhanced Interrogation Techniques” (EITs).

That legal opinion was based, in substantial part, on OTS analysis and the experience and expertise of non-Agency personnel and academics concerning whether long-term psychological effects would result from use of the proposed techniques.

Moreover, the CIA’s Office of Medical Services was frozen out of “the initial analysis of the risk and benefits of EITs,” and not even provided with a copy of the OTS report given to the White House Office of Legal Counsel. Such compartmentalization of information is indicative of a covert operation, such as a Special Access Program (SAP). This SAP would have included personnel in CIA’s CTC, OTS, OGC, and Directorate of Operations, also portions of DOD (JPRA and Special Operations Command), and probably the White House’s OLC, Office of the Vice President, and National Security Council.

It seems highly likely that the CIA report to the OLC on the medical and psychological effects of the SERE school program, mentioned in the Senate Intelligence Committee narrative quote above, is in fact the OTS report, which came from the same CIA directorate to which Dr. Morgan belongs. This does not speak to Morgan’s foreknowledge of what would be used, nor to the amount of his involvement. But it does speak to the likelihood that the government research he conducted (with others) was available and likely used by his associates in the CIA.

To what purpose was this information used? It seems Dr. Morgan has serendipitously given us the answer himself: “exploring old and new techniques in gathering human intelligence.” The CIA appears to have used torture to conduct what Physicians for Human Rights, in a “white paper” (PDF) recently published, called “possible unethical human experimentation, [which] urgently needs to be thoroughly investigated.” The government should declassify the OTS report, and bring the process of investigating the CIA’s role in the torture conspiracy fully into public purview.

This report was originally published on FireDogLake.com.

Jeffrey Kaye, a psychologist living in Northern California and a regular contributor The Public Record, has been blogging at Daily Kos since May 2005, and maintains a personal blog, Invictus. E-mail Mr. Kaye at sfpsych at gmail dot com.

Judge Baltasar Garzón

The Spanish newspaper Público reported exclusively on Saturday that Judge Baltasar Garzón, who sits on the Criminal Court of Spain, is pressing ahead with a case against six senior Bush administration lawyers for implementing torture at Guantánamo.

Back in March, Judge Garzón announced that he was planning to investigate the six prime architects of the Bush administration’s torture policies — former Attorney General Alberto Gonzales; John Yoo, a former lawyer in the Justice Department’s Office of Legal Counsel, who played a major role in the preparation of the OLC’s notorious “torture memos”; Douglas Feith, the former undersecretary of defense for policy; William J. Haynes II, the Defense Department’s former general counsel; Jay S. Bybee, Yoo’s superior in the OLC, who signed off on the August 2002 “torture memos”; and David Addington, former Vice President Dick Cheney’s Chief of Staff.

In April, on the advice of the Spanish Attorney General Cándido Conde-Pumpido, who believes that an American tribunal should judge the case (or dismiss it) before a Spanish court even thinks about becoming involved, prosecutors recommended that Judge Garzón should drop his investigation. As CNN reported, Mr. Conde-Pumpido told reporters that Judge Garzón’s plans threatened to turn the court “into a toy in the hands of people who are trying to do a political action.”

On Saturday, however, Público reported that Judge Garzón had accepted a lawsuit presented by a number of Spanish organizations — the Asociación Pro Dignidad de los Presos y Presas de España (Organization for the Dignity of Spanish Prisoners), Asociación Libre de Abogados (Free Lawyers Association), the Asociación Pro Derechos Humanos de España (Association for Human Rights in Spain) and Izquierda Unida (a left-wing political party) — and three former Guantánamo prisoners (the British residents Jamil El-Banna and Omar Deghayes, and Sami El-Laithi, an Egyptian freed in 2005, who was paralyzed during an incident involving guards at Guantánamo). The newspaper reported that all these groups and individuals would take part in any trial.

It is, at present, uncertain whether another attempt to stifle Judge Garzón will derail him, as he is not known for letting adversaries stand in his way. At the end of June, the Spanish Parliament pointedly passed legislation aimed at “ending the practice of letting its magistrates seek war-crime indictments against officials from any foreign country, including the United States,” on the basis that no Spanish Court should be able to judge officials of foreign countries except when the victims are Spanish or the crimes were committed in Spain.

However, on Sunday, when Público spoke to Philippe Sands, the British lawyer, and author of Torture Team, which provided much of the first-hand evidence for Garzón’s case, Sands explicitly stated that there was “no legal barrier” to prevent Judge Garzón’s prosecution from proceeding. He explained that he believed the recent decision by US Attorney General Eric Holder to appoint a special investigator to investigate cases of torture by the CIA is related to the Spanish lawsuit and the importance it has acquired because of its instigation by Judge Garzón. Sands told Público, “The recent decision by Eric Holder emphasizes how appropriate the Spanish investigation is. Many commentators believe that this decision has had a significant and direct impact in the United States, reminding people that there is an obligation to investigate torture.”

He added, “Judge Garzón’s actions have acted like a catalyst, and are supported by many people in the United States, including some members of Congress. He has reminded everybody that a blind eye cannot be turned to these actions and that there are people who are not going to let that happen.” He also explained that Eric Holder’s gesture is only a first step, “limited to cases in which interrogators may have exceeded the limits formally approved by lawyers in the Justice Department’s Office of Legal Counsel,” that the architects of the “legal decisions that purported to justify the use of torture are not in immediate danger in the United States,” and that there is, therefore, “no legal barrier to the continuation of the Spanish investigation.”

He concluded by stating that it was “important” that Judge Garzón proceeds with the case in Spain, because, although Eric Holder “has confirmed the importance of the Convention Against Torture, he has taken only a first step that “does not really address the actions of those who were truly responsible for its violation.”

Note: I wish to extend my thanks to Carlos Sardiña Galache for alerting me to the latest developments in this important story, which was not mentioned in the English-speaking press, and for translating crucial passages.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to Mr. Worthington’s RSS feed, and also see his definitive Guantánamo prisoner list, published in March 2009.

The Public Record has decided to dig into its archives and republish this report in light of the ongoing debate surrounding healthcare reform. This story was originally published on Consortiumnews.com on Feb. 16, 2008.

John Yoo, the author of one of the infamous Aug. 1, 2002, “torture” memos that formed the legal basis for so-called “enhanced” interrogation techniques against high-level terrorist detainees, used a statute governing health benefits when he provided the White House with a legal opinion defining torture.

Yoo’s legal opinion, which was signed by Jay Bybee, the former head of the Department of Justice’s Office of Legal Counsel (OLC), stated that unless the amount of pain administered to a detainee results in injury “such as death, organ failure, or serious impairment of body functions” than the interrogation technique could not be defined as torture.

Waterboarding, a brutal and painful technique in which a prisoner believes he is drowning, therefore was not considered to be torture.

Jack Goldsmith, who succeeded Bybee at OLC, said that Yoo, a former OLC attorney who now teaches at Chapman University in Orange, Calif., arrived at that definition by relying on statute written in 2000 related to health benefits.

“That statute defined an ‘emergency medical condition’ that warranted certain health benefits as a condition ‘manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function,” Goldsmith wrote in his book, The Terror Presidency.

“The health benefits statute’s use of ‘severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define ‘severe pain.’ Rather it used the term ‘severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like…. OLC’s clumsily definitional arbitrage didn’t seem even in the ballpark.”

In his book, War By Other Means, Yoo blamed Congress for forcing him to rely upon an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted techniques such as waterboarding.

In passing an anti-torture law, Congress only prohibited “severe {italics] physical or mental pain or suffering,” Yoo wrote. “The ban on torture does not prohibit any [italics] pain or suffering whether physical or mental, only severe acts. Congress did not define severe…OLC interpreted ‘severe’ as a level of pain ‘equivalent in intensity to the pain accompanying serious physical injury, such as death, organ failure, or serious impairment of body functions.

“OLC’s first 2002 definition did not make up this definition out of thin air. It applied a standard technique used to interpret ambiguous phrases in law. When Congress does not define its terms, courts commonly look in the United States Code for the use of similar language. The only other place where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including ‘severe pain’ where an individual’s health is placed ‘in serious jeopardy,’ ‘serious impairment to bodily functions,’ or ‘serious dysfunction of any bodily organ or part.’”

Goldsmith claims that after reviewing various arguments and opinions in Yoo’s August 2002 “torture memo,” particularly “any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the president, has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law.”

Goldsmith, who was tapped to head the OLC in October 2003, determined after eight weeks as head of OLC that Yoo’s “torture memo” was “legally flawed,” sloppily written, and called into question whether the White House was provided with sound legal advice.

That conclusion, along with Yoo’s reliance on the health benefits statute to form a legal opinion regarding torture, may be one of the sharp critcisms of an ethics report by the DOJ’s Office of Professional Responsibility (OPR), an internal DOJ watchdog that probed whether the legal work Yoo, Bybee and former OLC acting chief Steven Bradbury conducted for the White House violated “professional standards.”

“On an issue that demanded the greatest of care, OLC’s analysis of the law of torture in the Aug. 1, 2002, opinion and the March 2003 opinion was legally flawed, tendentious in substance and tone, and overbroad and thus largely unnecessary,” Goldsmith wrote in his book.

When he arrived at the OLC in October 2003, Goldsmith was unaware that the CIA had, for more than a year, used interrogation methods to extract information from so-called high-level detainees held at secret prisons in European countries that, before 9/11, would have most certainly been construed as violating the United Nations Convention Against Torture, a treaty signed by the U.S. but one that Congress had made unenforceable in U.S. courts.

Goldsmith, who had worked at the Pentagon’s office of general counsel, may appear to be one of a handful of individuals who challenged the White House on matters of national security matters but he was still a strong supporter of many of the administration’s policies.

A law professor and scholar on international law who graduated from Oxford and Yale universities, Goldsmith held the view that international laws that prohibited human rights abuses should not be considered as binding by courts in the United States.

Goldsmith’s interpretation of international laws, as well as his staunch conservative credentials, played a crucial role in his transition from the Pentagon’s office of general counsel to director of the OLC at the Justice Department.

Upon his arrival at the DOJ, Goldsmith inherited a stack of legal opinions, some written by Yoo, who he counts as a close friend.

Yoo’s legal opinions virtually gave President Bush unilateral authority to launch preemptive military strikes against any regime suspected of having ties to terrorist groups, provided Bush with the power to begin a covert domestic surveillance program, and authorized the president to allow CIA agents to interrogate alleged terrorist detainees using brutal methods of interrogation as long as it didn’t result in death or maiming of the prisoner.

White House officials, including Vice President Dick Cheney, and his legal counsel, David Addington, believed that Goldsmith would reauthorize Yoo’s legal opinions after arriving at the DOJ so the wide range of classified programs would continue without interruption.

But eight weeks after he settled into his new job Goldsmith said, according to his book that he worried “about the possibility of excessive interrogation” being undertaken by CIA agents after reviewing some of the legal documents written by his predecessors.

Patrick Philbin, at the time a deputy at the OLC who had provided the White House with legal advice following Yoo’s departure from the office, advised Goldsmith soon after he arrived at OLC that he was working to correct one such OLC opinion written by Yoo that he believed was “out there.”

The legal opinion that so worried Philbin was Yoo’s “Standards of Conduct for Interrogation,” which formed the legal basis for the Bush administration’s so-called “enhanced” interrogation program.

Another opinion written by Yoo on March 14, 2003, for Jim Haynes, Goldsmith’s former boss at the Pentagon under the heading “Military Interrogation of Alien Unlawful Combatants Held Outside the United States,” provided the Department of Defense, specifically former Secretary of Defense Donald Rumsfeld, with authority to use the same interrogation techniques against high-level prisoners held at Guantanamo Bay and other facilities maintained under the DOD’s control. That opinion remains classified.

According to Goldsmith, “the primary legal issue in both opinions was the effect of a 1994 law that implemented a global treaty banning torture and that made it a crime, potentially punishable by death, to commit torture.”

“Congress defined the prohibition on torture very narrowly to ban only the most extreme of acts and to preserve many loopholes,” Goldsmith wrote in his book.

It did not criminalize cruel, inhuman, and degrading treatment (something prohibited by international law) and did not even criminalize all acts of physical or mental pain or suffering, but rather only those acts “specifically intended” to cause “severe” physical pain or suffering or “prolonged mental harm.”

Both of Yoo’s opinions concluded that the laws governing torture violated President Bush’s Commander-in-Chief powers under the Constitution because it prevented him “from gaining the intelligence he believes necessary to prevent attacks upon the United States.”

Goldsmith said that even though, “ironically,” Yoo relied on a health benefits statute to write his legal opinion, these and “other questionable statutory interpretations, taken alone, were not enough to cause me to withdraw and replace the interrogation opinions.”

“OLC has a powerful tradition of adhering to its past opinions, even when a head of the office concludes they are wrong,” he wrote in his book.

Still, Goldsmith “decided in December 2003 that opinions written nine and sixteen months earlier by my Bush administration predecessors must be withdrawn, corrected, and replaced,” Goldsmith wrote in his book.

“I reached this decision, and had begun to act on it, before I knew anything about interrogation abuses. I did so because the opinions’ errors of statutory interpretation combined with many other elements to make them unusually worrisome.”

Panetta issued a statement in advance of the release later Monday of a critical 2004 inspector general’s report on the agency’s torture program. Panetta says the horrific details of torture and abuse contained in the report “is in many ways an old story” and that the interrogation methods used against detainees were approved in Justice Department legal memoranda.

The outlines of prior interrogation practices, and many of the details, are public already,” Panetta said. “The use of enhanced interrogation techniques, begun when our country was responding to the horrors of September 11th, ended in January. For the CIA now, the challenge is not the battles of yesterday, but those of today and tomorrow. It is there that we must work to enhance the safety of our country. That is the job the American people want us to do, and that is my responsibility as the current Director of the CIA.

I make no judgments on the accuracy of the 2004 IG report or the various views expressed about it. Nor am I eager to enter the debate, already politicized, over the ultimate utility of the Agency’s past detention and interrogation effort. But this much is clear: The CIA obtained intelligence from high-value detainees when inside information on al-Qa’ida was in short supply. Whether this was the only way to obtain that information will remain a legitimate area of dispute, with Americans holding a range of views on the methods used. The CIA requested and received legal guidance and referred allegations of abuse to the Department of Justice. President Obama has established new policies for interrogation.

His statement was disseminated to reporters hours after ABCNews.com reported that Panetta got into a “profanity-laced screaming match” with a senior White House staff member over reports that Attorney General Eric Holder was considering the appointment of a special counsel to probe the CIA’s use of torture against “war on terror detainees.”

According to intelligence officials, Panetta erupted in a tirade last month during a meeting with a senior White House staff member. Panetta was reportedly upset over plans by Attorney General Eric Holder to open a criminal investigation of allegations that CIA officers broke the law in carrying out certain interrogation techniques that President Obama has termed “torture.”

ABCNews.com added that Panetta had threatened to resign over the possibility of a criminal investigation involving agency interrogators.

Panetta’s about-face stands in stark contrast to statements he made in a series of op-eds in the Monterey County Herald and other publications last year. In a March 8, 2008, column titled, “Americans Reject Fear Tactics,” Panetta wrote that “all forms of torture have long been prohibited by American law and international treaties respected by Republican and Democratic presidents alike.”

“Our forefathers prohibited ‘cruel and unusual punishment’ because that was how tyrants and despots ruled in the 1700′s. They wanted an America that was better than that. Torture is illegal, immoral, dangerous and counterproductive. And yet, the president is using fear to trump the law.”

Here is Panetta’s statment in full hours before the Justice Department released the CIA IG torture report and other documents.

Message from the Director: Release of Material on Past Detention Practices

Today, as part of a number of Freedom of Information Act cases, the government is responding to court orders to release more documents related to the Agency’s past detention and interrogation of foreign terrorists. The CIA materials include the 2004 report from our Office of Inspector General and two papers-one from 2004 and the other from 2005-that discuss the value of intelligence acquired from high-level detainees. The complete package is hundreds of pages long. The declassification process, a mandatory part of the proceedings, was conducted in accord with established FOIA guidelines.

This is in many ways an old story. The outlines of prior interrogation practices, and many of the details, are public already. The use of enhanced interrogation techniques, begun when our country was responding to the horrors of September 11th, ended in January. For the CIA now, the challenge is not the battles of yesterday, but those of today and tomorrow. It is there that we must work to enhance the safety of our country. That is the job the American people want us to do, and that is my responsibility as the current Director of the CIA.

My emphasis on the future comes with a clear recognition that our Agency takes seriously proper accountability for the past. As the intelligence service of a democracy, that’s an important part of who we are. When it comes to past detention and interrogation practices, here are some facts to bear in mind on that point:

· The CIA itself commissioned the Inspector General’s review. The report, prepared five years ago, noted both the effectiveness of the interrogation program and concerns about how it had been run early on. Several Agency components, including the Office of General Counsel and the Directorate of Operations, disagreed with some of the findings and conclusions.

· The CIA referred allegations of abuse to the Department of Justice for potential prosecution. This Agency made no excuses for behavior, however rare, that went beyond the formal guidelines on counterterrorism. The Department of Justice has had the complete IG report since 2004. Its career prosecutors have examined that document-and other incidents from Iraq and Afghanistan-for legal accountability. They worked carefully and thoroughly, sometimes taking years to decide if prosecution was warranted or not. In one case, the Department obtained a criminal conviction of a CIA contractor. In other instances, after Justice chose not to pursue action in court, the Agency took disciplinary steps of its own.

· The CIA provided the complete, unredacted IG report to the Congress. It was made available to the leadership of the Congressional intelligence committees in 2004 and to the full committees in 2006. All of the material in the document has been subject to Congressional oversight and reviewed for legal accountability.

As Director in 2009, my primary interest-when it comes to a program that no longer exists-is to stand up for those officers who did what their country asked and who followed the legal guidance they were given. That is the President’s position, too. The CIA was aggressive over the years in seeking new opinions from the Department of Justice as the legal landscape changed. The Agency sought and received multiple written assurances that its methods were lawful. The CIA has a strong record in terms of following legal guidance and informing the Department of Justice of potentially illegal conduct.

I make no judgments on the accuracy of the 2004 IG report or the various views expressed about it. Nor am I eager to enter the debate, already politicized, over the ultimate utility of the Agency’s past detention and interrogation effort. But this much is clear: The CIA obtained intelligence from high-value detainees when inside information on al-Qa’ida was in short supply. Whether this was the only way to obtain that information will remain a legitimate area of dispute, with Americans holding a range of views on the methods used. The CIA requested and received legal guidance and referred allegations of abuse to the Department of Justice. President Obama has established new policies for interrogation.

The CIA must also keep its focus on the primary responsibility of protecting the country. America is a nation at war. This Agency plays a decisive role in helping the United States meet the full range of security threats and opportunities overseas. That starts with the continuing fight against al-Qa’ida and its sympathizers. There, alongside all its other contributions, the CIA is helping our government chart a new way forward on interrogation, one in keeping with the President’s Executive Order of January 22nd. You, the men and women of this great institution, do the hard work and take the tough risks that intelligence and espionage demand.

I am very proud of what you do, here and abroad, to protect the United States. Your skill, courage, commitment, and focus on mission make the CIA indispensable to the nation. It is a privilege to serve with you.

Leon E. Panetta

“There simply is no legal, moral or principled reason to insulate those who authorized the torture of detainees, either through legal reasoning or other policy directive, from investigation,” Rep. Jerrold Nadler, a New York Democrat and chairman of the House Judiciary subcommittee on the Constitution, Civil Rights and Civil Liberties, said in a letter to Holder.

Nadler’s letter of Aug. 4 was followed on Sunday by a report in the Los Angeles Times that Holder was likely to sign off on a criminal probe, but would limit its scope to CIA interrogators who exceeded interrogation limits set in 2002 by Justice Department attorneys John Yoo and Jay Bybee in memos that authorized waterboarding and other brutal acts against suspected terrorists.

“A senior Justice Department official said that Holder envisioned an inquiry that would be narrow in scope, focusing on ‘whether people went beyond the techniques that were authorized’ in Bush administration memos that liberally interpreted anti-torture laws,” the Los Angeles Times reported.

Nadler’s letter reiterated his previous calls for a special prosecutor with broad authority to investigate violations of federal laws that prohibit torture. He also objected to any investigation limited to “activities by interrogators, working in bad faith, that fell outside the ‘four corners’ of the legal memos” provided by lawyers of the Justice Department’s Office of Legal Counsel, where Yoo and Bybee worked.

“First, such an investigation would fail to consider the possible violation of laws by high-ranking officials and lawyers who, through legal advice or otherwise, may have authorized torture,” Nadler wrote.

“This country has been instrumental in establishing the principle that high-ranking officials and lawyers who use legal reasoning to justify or otherwise authorize war crimes can, and should, be held legally accountable. The ban on torture is absolute and we have a legal obligation to investigate torture and all of those who may have been party to its use.”

Nadler’s letter was prompted by several news reports published over the past month indicating that Holder was leaning toward a limited criminal probe after reviewing a classified CIA inspector general’s report that reportedly called into question the legality of the Bush administration’s torture program.

The secret findings of CIA Inspector General John Helgerson led to eight criminal referrals to the Justice Department for homicide and other misconduct, but those cases languished as Vice President Dick Cheney is said to have intervened to constrain Helgerson’s inquiries.

Holder may reopen those cases, but if an investigation is narrowly focused on the CIA interrogators and outside contractors and does not include the Bush administration officials who authorized the policies then the probe would likely amount to a whitewash, much like the Abu Ghraib case.

Of the 12 investigations launched in the aftermath of the Abu Ghraib prison scandal, not one scrutinized the roles of Defense Secretary Donald Rumsfeld or any other senior Bush administration official. The inquiries concentrated instead on the military police identified in the photographs, like Private Lynndie England and Corporal Charles Graner Jr.

Such a limited approach would also ignore evidence that senior Bush administration officials and high-level officials at CIA headquarters in Langley micromanaged the torture of at least one high-level detainee.

As first reported by The Public Record, documents released earlier this year in a Freedom of Information Act lawsuit between the American Civil Liberties Union and the CIA showed that CIA interrogators provided top agency officials at Langley with daily “torture” updates of Abu Zubaydah, an alleged “high-level” terrorist detainee who was held at a secret “black site” prison and waterboarded 83 times in August 2002.

Additionally, alleged 9/11 mastermind Khalid Sheikh Mohammed was waterboarded 183 times in the span of a single month. CIA Inspector General Helgerson also “had serious questions about the agency’s mistreatment of dozens more,” according to Jane Mayer, a reporter for The New Yorker and author of the book The Dark Side.

Senior Bush administration officials were known to be closely following these developments and pressed the CIA for more and more results.

Last year, in several interviews prior to exiting the White House, Cheney admitted that he personally authorized the waterboarding of three so-called “high-value” prisoners.

“I signed off on it; others did, as well, too,” Cheney said.

In waterboarding, interrogators strap a person down to a board with a cloth covering his face and then pour water over the cloth, causing the victim to feel as if he is drowning. It is a torture technique dating back at least to the Spanish Inquisition.

“I thought that it was absolutely the right thing to do,” Cheney said of what he called the “enhanced interrogation” of the detainees. “I thought the [administration’s] legal opinions that were rendered [endorsing the harsh treatment] were sound. I think the techniques were reasonable in terms of what they [the CIA interrogators] were asking to be able to do. And I think it produced the desired result.

“Was it torture? I don’t believe it was torture,” Cheney said. “The CIA handled itself, I think, very appropriately. They came to us in the administration, talked to me, talked to others in the administration, about what they felt they needed to do in order to obtain the intelligence that we believe these people were in possession of.”

In his letter to Holder, Nadler suggested statements, like those uttered publicly by Cheney, needed a closer look to determine whether war crimes were committed.

“The Geneva Conventions obligate High Contracting Parties such as the United States to investigate and bring before our courts those individuals ‘alleged to have committed, or to have ordered to be committed grave breaches of those Conventions.

“The War Crimes Act… specifically identifies torture and cruel or inhuman treatment, as well as the conspiracy to commit those acts, as punishable war crimes. The federal Torture Statute …  criminalizes torture and the conspiracy to commit torture.”

Nadler said if Holder decides to sign off on a criminal investigation a prosecutor must probe whether “federal criminal laws were violated by individuals who authorized or participated in the interrogation of detainees, including high-ranking officials and lawyers from the Department of Justice itself who allegedly approved or ordered the use of enhanced interrogation techniques that amounted to torture.”

Nadler added, “The ban on torture is absolute: ‘no exceptional circumstances whatsoever . . . may be invoked as a justification of torture,’ and ‘an order from a superior officer . . . may not be invoked as a justification of torture.’

“It may prove true that some interrogators faced difficult choices – pressure from superiors to obtain intelligence information from detainees coupled with directives or advice indicating that harsh interrogation methods were lawful – but limiting the scope of investigation to exclude individuals up front ignores the absolute bar on torture and our legal obligation to investigate torture, and is not necessary.

“If, indeed, laws were violated, the Detainee Treatment Act of 2005 provides a limited defense for those interrogators who show that they relied in good faith on legal advice in using interrogation methods that they did not know, and that a reasonable person would not know, were unlawful.
“These determinations are necessarily fact-based, and making ultimate decisions as to what the facts might prove or disprove, before any independent investigation has occurred, is unwarranted and would undermine the credibility of any investigation.”

In April, Holder declared that it “would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.” That meant any possible criminal investigation would be limited to examining actions that went beyond what was sanctioned, such as repetitious use of waterboarding.

Last year, in the heat of the presidential campaign, Holder, who was a featured speaker at the American Constitution Society’s annual convention, told a packed crowd that the “American people are owe[d] a reckoning” as a result of the “abusive” and “unlawful” policies of the Bush administration.

“Our government authorized the use of torture, approved of secret electronic surveillance of American citizens, secretly detained American citizens without due process of law, denied the Writ of Habeus Corpus to hundreds of accused enemy combatants, and authorized the use of procedures that both violate international law and the United States Constitution,” Holder said in June 2008. “We owe the American people a reckoning.”

Obama, however, has been resistant to any investigation that would “look backward” and divert attention away from his domestic agenda.

Yet, Nadler said that can’t happen without a wide-ranging investigation.

“I appreciate and share the desire to put this unfortunate chapter in our nation’s history behind us, but we cannot do so without fulfilling our legal and moral obligation to investigate whether laws were broken by those who conducted and those who authorized the enhanced interrogation practices.”

It’s the second letter Nadler sent to Holder this year calling for a criminal investigation into the Bush administration’s torture policies. He also sent Holder a letter  on April 28 that was signed by other Democratic lawmakers who are members of the House Judiciary Committee. Nadler is chairman of the panel’s subcommittee on the Constitution, Civil Rights, and Civil Liberties Committee on the Judiciary.

That letter was sent a couple of weeks after the Obama administration released Justice Department memoranda which authorized CIA interrogators to torture “high-value” detainees and legalized domestic surveillance activities.

Tuesday’s letter comes on the heels of several news reports published last month stating that Holder is considering  the possibility of appointing a federal prosecutor.

But, as The Public Record reported last week, those same news reports, quoting unnamed sources, say that if Holder decides in the coming weeks to authorize a criminal investigation it would be limited to the “few bad apples” at the CIA who exceeded interrogation limits set by Justice Department attorneys in memos that authorized brutal acts of torture against suspected terrorists.

Nadler said he is “fundamentally concerned that the scope of the special counsel investigation will be too narrow.”

“There simply is no legal, moral or principled reason to insulate those who authorized the torture of detainees, either through legal reasoning or other policy directive, from investigation,” Nadler wrote. “This country has been instrumental in establishing the principle that high-ranking officials and lawyers who use legal reasoning to justify or otherwise authorize war crimes can, and should, be held legally accountable.

“The ban on torture is absolute and we have a legal obligation to investigate torture and all of those who may have been party to its use.”

Holder will likely make a decision if and when a CIA inspector general’s report is released that reportedly calls into question the legality of the agency’s torture of “high-value” detainees. The report is expected to be released at the end of August.

The secret findings of CIA Inspector General John Helgerson led to eight criminal referrals to the Justice Department for homicide and other misconduct, but those cases languished as Vice President Dick Cheney is said to have intervened to constrain Helgerson’s inquiries.

Holder may reopen those cases, but if an investigation is narrowly focused on the CIA interrogators and outside contractors and does not include the Bush administration officials who implemented the policies then the probe would likely amount to a whitewash, much like the Abu Ghraib case.

Of the 12 investigations launched in the aftermath of the Abu Ghraib prison scandal, not one scrutinized the roles of Defense Secretary Donald Rumsfeld or any other senior Bush administration official. The inquiries concentrated instead on the military police identified in the photographs, like Private Lynndie England and Corporal Charles Graner Jr.

Such a limited approach would also ignore evidence that senior Bush administration officials and high-level officials at CIA headquarters in Langley micromanaged the torture of at least one high-level detainee.

Documents released earlier this year in a Freedom of Information Act lawsuit between the American Civil Liberties Union and the CIA showed that CIA interrogators provided top agency officials at Langley with daily “torture” updates of Abu Zubaydah, the alleged “high-level” terrorist detainee, who was held at a secret “black site” prison and waterboarded 83 times in August 2002.

Additionally, alleged 9/11 mastermind Khalid Sheikh Mohammed was waterboarded 183 times in the span of a single month. CIA Inspector General Helgerson also “had serious questions about the agency’s mistreatment of dozens more, including Khalid Sheikh Mohammed,” according to Jane Mayer, a reporter for The New Yorker and author of the book The Dark Side.

Senior Bush administration officials were known to be closely following these developments and pressed the CIA for more and more results.

Last year, in several interviews prior to exiting the White House, Cheney admitted that he personally authorized the waterboarding of three so-called “high-value” prisoners.

“I signed off on it; others did, as well, too,” Cheney said.

Waterboarding, in which a person is strapped down to a board with a cloth covering his face and then water is poured over it, is a torture technique dating back at least to the Spanish Inquisition. The victim feels as if he is drowning.

“I thought that it was absolutely the right thing to do,” Cheney said of what he called the “enhanced interrogation” of the detainees. “I thought the [administration’s] legal opinions that were rendered [endorsing the harsh treatment] were sound. I think the techniques were reasonable in terms of what they [the CIA interrogators] were asking to be able to do. And I think it produced the desired result.

“Was it torture? I don’t believe it was torture,” Cheney said. “The CIA handled itself, I think, very appropriately. They came to us in the administration, talked to me, talked to others in the administration, about what they felt they needed to do in order to obtain the intelligence that we believe these people were in possession of.”

In his letter to Holder, Nadler said he has two “fundamental concerns” with any investigation that is limited to “activities by interrogators, working in bad faith, that fell outside the ‘four corners’ of the legal memos” provided by lawyers from the Office of Legal Counsel of the Department of Justice.”

“First, such an investigation would fail to consider the possible violation of laws by high-ranking officials and lawyers who, through legal advice or otherwise, may have authorized torture,” he wrote.

Additionally, as he wrote in an April 28 letter to Holder, any criminal investigation into the Bush administration’s torture policies must also determine whether war crimes were committed.

“The Geneva Conventions obligate High Contracting Parties such as the United States to investigate and bring before our courts those individuals ‘alleged to have committed, or to have ordered to be committed grave breaches of those Conventions.

“The War Crimes Act… specifically identifies torture and cruel or inhuman treatment, as well as the conspiracy to commit those acts, as punishable war crimes. The federal Torture Statute.. criminalizes torture and the conspiracy to commit torture.”

Nadler said if Holder decides to sign off on a criminal investigation a prosecutor must probe whether “federal criminal laws were violated by individuals who authorized or participated in the interrogation of detainees, including high-ranking officials and lawyers from the Department of Justice itself who allegedly approved or ordered the use of enhanced interrogation techniques that amounted to torture.”

“The ban on torture is absolute: ‘no exceptional circumstances whatsoever . . . may be invoked as a justification of torture,’ and ‘an order from a superior officer . . . may not be invoked as a justification of torture.’

“It may prove true that some interrogators faced difficult choices – pressure from superiors to obtain intelligence information from detainees coupled with directives or advice indicating that harsh interrogation methods were lawful – but limiting the scope of investigation to exclude individuals up front ignores the absolute bar on torture and our legal obligation to investigate torture, and is not necessary.

“If, indeed, laws were violated, the Detainee Treatment Act of 2005 provides a limited defense for those interrogators who show that they relied in good faith on legal advice in using interrogation methods that they did not know, and that a reasonable person would not know, were unlawful. These determinations are necessarily fact-based, and making ultimate decisions as to what the facts might prove or disprove, before any independent investigation has occurred, is unwarranted and would undermine the credibility of any investigation.”

In April, Holder declared that it “would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.” What that meant was that a possible criminal investigation would be limited to examining actions that went beyond what was sanctioned, such as repetitious use of waterboarding.

Last year, in the heat of the presidential campaign, Holder, who was a featured speaker at the American Constitution Society’s annual convention, told a packed crowd that the “American people are owe[d] a reckoning” as a result of the “abusive” and “unlawful” policies of the Bush administration.

“Our government authorized the use of torture, approved of secret electronic surveillance of American citizens, secretly detained American citizens without due process of law, denied the Writ of Habeus Corpus to hundreds of accused enemy combatants, and authorized the use of procedures that both violate international law and the United States Constitution,” Holder said in June 2008. “We owe the American people a reckoning.”

Obama, however, has been resistant to any investigation that would “look backward” and divert attention away from his domestic agenda.

Yet, Nadler said that can’t happen without a wide-ranging investigation.

“I appreciate and share the desire to put this unfortunate chapter in our nation’s history behind us, but we cannot do so without fulfilling our legal and moral obligation to investigate whether laws were broken by those who conducted and those who authorized the enhanced interrogation practices.”

The Journal reported that Craig has had “a rocky tenure” over some national security issues that have become “political liabilities” for President Obama.

“These include the closure of the prison at Guantanamo Bay, Cuba, the release of Bush administration-era national-security documents, and efforts to find legal ways to indefinitely hold some detainees who can’t be put on trial,” the Journal reported, citing unnamed sources.

In January, Obama signed an executive order to close Guantanamo by early 2010, but a proposal to move some of the detainees to maximum security prisons in the U.S. and try them in federal courts received zero support from Democrats, Republicans and the public.

According to the Journal:

Mr. Craig has come under criticism from inside the administration and in Congress for a perceived failure to manage the political issues that have originated from Mr. Obama’s decision to close Guantanamo, according to officials in the administration and in Congress. This criticism has drawn focus away from president’s priorities, such as health care and energy.

White House Deputy Chief of Staff Jim Messina denied the claims. In a statement to the Journal, Messina said:

We’ve addressed these rumors before. They are nothing more than typical Washington parlor games. It’s disappointing that while we are focused on reviving the economy and fighting two wars, others spend their time pointing fingers in an attempt to promote their own status.

The Journal report would appear to suggest that Craig may have fallen out of favor with some administration officials because he backed public disclosure on documents related to the Bush administration’s use of torture against alleged terrorist detainees and his advice to the president on those matters and issues related to Guantanamo lead to vicious attacks against the president by Republicans.

For example, the Journal said some of the “difficulties” Craig has faced revolve around Obama’s reversal in May not to release photographs depicting U.S. soldiers abusing and torturing detainees in Afghanistan and Iraq. However, the Journal did not elaborate on what the “difficulties” entailed.

Obama had previously said he would release the photographs in question in accordance with a federal court order. But he shifted his stance weeks later claiming that his decision stemmed from his personal review of the photos and his concern that their release would endanger American soldiers in Iraq and Afghanistan. However, Obama’s reversal also came after several weeks of mounting attacks against him as weak on national security.

White House Chief of Staff Rahm Emanuel has since told Senators Lindsey Graham and Joe Lieberman that the photographs would “never see the light of day” and Obama would sign an executive order if need be to block the images from being released. The American Civil Liberties Union sued the Bush administration to gain access to the photographs and a federal appeals court ruled in favor of the ACLU. The matter is now before the U.S. Supreme Court.

Weeks earlier, Craig reportedly advised Obama on plans to release Justice Department legal opinions drafted during Bush’s first term in office that gave Bush the legal authority to spy on American citizens and the CIA the green light to torture “high-level” alleged terrorist detainees.

But national-security officials complained that they weren’t consulted about those plans and “weeks of debate inside the administration” ensued, the Journal reported.

The Justice Department memoranda was released in April.

But the White House went into damage control mode immediately thereafter as Vice President Dick Cheney and his daughter, Liz Cheney, publicly accused Obama of inviting a terrorist attack on U.S. soil as a result of his decision.

Around the same time, the Journal reported:

…The administration was running into trouble with plans to move to northern Virginia at least some Chinese Muslim Uighurs who remain detained at Guantanamo despite being cleared for release. The furor over the possible release of former suspects in the U.S. led Congress to overwhelmingly pass new restrictions, including barring spending to close the Guantanamo prison.

Last month, Newsweek reported (h/t Marcy Wheeler) that tensions between Justice Department officials and Craig’s office reached a boiling point just a few weeks after Obama was sworn into office.

The first detonation occurred in only the third week of the administration, soon after a Justice lawyer walked into a courtroom in California and argued that a lawsuit, brought by a British detainee who was alleging torture, should have been thrown out on national-security grounds. By invoking the “state secrets” privilege, the lawyer was reaffirming a position staked out by the Bush administration. The move provoked an uproar among liberals and human-rights groups. It also infuriated Obama, who learned about it from the front page of The New York Times. “This is not the way I like to make decisions,” he icily told aides, according to two administration officials, who declined to be identified discussing the president’s private reactions. White House officials were livid and accused the Justice Department of sandbagging the president. Justice officials countered that they’d notified the White House counsel’s office about the position they had planned to take.

Newsweek said the friction only became worse and “came to a head in June.”

By then, Congress was in full revolt over the prospect of Gitmo detainees being transferred to the United States, and the Senate had already voted to block funding to shut down Guantánamo. On the afternoon of June 3, a White House official called Holder’s office to let him know that a compromise had been reached with Senate Democrats. The deal had been cut without input from Justice, according to three department officials who did not want to be identified discussing internal matters, and it imposed onerous restrictions that would make it harder to move detainees from Cuba to the United States.

Craig was also instrumental in working closely with Karl Rove’s attorney, Robert Luskin, and House Judiciary Committee Chairman John Conyers and his staff that resulted in Bush’s former political adviser, Karl Rove, testifying before the panel behind closed doors about the firings of nine federal prosecutors in 2006 and the apparent political prosecution of former Alabama Gov. Don Siegelman. Craig also arranged a similar deal for former White House Counsel Harriet Miers.

By urging Rove and the Judiciary Committee to reach a settlement, Obama’s Justice Department lawyers avoided going to federal court and taking a position on Bush’s broad claims of executive privilege, which the former president said extended beyond his presidency.

“The President is very sympathetic to those who want to find out what happened,” Craig said in early March just as a deal to secure Rove and Miers’ testimony was reached. “But he is also mindful as President of the United States not to do anything that would undermine or weaken the institution of the presidency. So, for that reason, he is urging both sides of this to settle.”

The Public Record reported the details of the unusual arrangement in February.

Using American soldiers for domestic law enforcement purposes would have been unprecedented. The Posse Comitatus Act of 1878 generally prohibits the armed forces from acting in a law enforcement capacity.

The Fourth Amendment to the U.S. Constitution states that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.”

“Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants,” says a report published Friday evening in the New York Times.

Bush ultimately opposed the idea.

But Cheney, according to the Times said a 37-page Oct. 23, 2001 legal opinion prepared by John Yoo, the former deputy assistant attorney general in the Justice Department’s Office of Legal Counsel (OLC), authorized the president to use the military for domestic matters. Yoo’s legal opinion–“Authority for Use of Military Force to Combat Terrorist Activities Within the United States”–was declassified and released along with other OLC memos in April.

Yoo, who is a visiting law professor at Chapman University in Orange, Calif., asserted that the President had unlimited powers to prosecute the “war on terror” on American soil and could ignore constitutional rights, including First Amendment freedoms of speech and the press and Fourth Amendment requirements for search warrants.

“The current campaign against terrorism may require even broader exercises of federal power domestically,” Yoo wrote. “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully. The current campaign against terrorism may require even broader exercises of federal power domestically.”

The memo also said Bush had the legal authority to order searches and seizures without warrants against individuals that he judged to be terrorists.

“We do not think a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant,” said the memo, which was prepared by Yoo for then-White House Counsel Alberto Gonzales and Defense Department attorney William Haynes. Another OLC attorney, Robert Delahunty, was identified as a co-author of the memo.

“We think that the better view is that the Fourth Amendment does not apply to domestic military operations designed to deter and prevent future terrorist attacks.”

Just three months before Bush exited the White House, Stephen Bradbury, as acting chief of the OLC, renounced the Oct. 23, 2001, legal opinion in a “memorandum for the files” that called Yoo’s opinion about suspending First Amendment protections “overbroad and general and not sufficiently grounded in the particular circumstance of a concrete scenario.”

In an Oct. 6, 2008, memo, Bradbury wrote that Yoo’s legal opinion “states several specific propositions that are either incorrect or highly questionable.” But 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.”

The Oct. 23, 2001, “memorandum represents a departure, although perhaps for understandable reasons, from the preferred practice of OLC to render formal opinions only with respect to specific and concrete policy proposals and not to undertake a general survey of a broad area of the law or to address general or amorphous hypothetical scenarios that implicate difficult questions of law,” Bradbury wrote.

It’s still unclear what prompted Bradbury to draft the memo to the file, although his legal work along with Yoo’s and that of Yoo’s boss, Jay Bybee, a federal judge, was the subject of an internal Justice Department investigation by the Office of Professional Responsibility, which is expected to release its report sometime this summer.

Yoo was sharply criticized in an inspector general’s report released two weeks ago for using flawed legal theories and failing to cite legal precedent when he authorized Bush’s domestic surveillance program. The report said Yoo worked closely with Cheney’s attorney, David Addington, in drafting the legal memo that permitted domestic spying, which is the same memo Cheney cited when he told Bush he could deploy American soldiers to upstate New York to arrest suspected terrorists.

Some of Yoo’s thinking on domestic military operations was revealed in an even earlier memo than the one dated Oct. 23, 2001. There was another one, written 10 days after the 9/11 attacks, on Sept. 21, 2001. The memo was drafted in response to a question posed by Timothy E. Flanigan, the former deputy White House counsel, who wanted to know “the legality of the use of military force to prevent or deter terrorist activity inside the United States,” according to a copy of Flanigan’s memo.

Yoo suggested some scenarios, such as the need to shoot down a jetliner hijacked by terrorists; to set up military checkpoints inside a U.S. city; to implement surveillance methods far superior to those available to law enforcement; or to use military forces “to raid or attack dwellings where terrorists were thought to be, despite risks that third parties could be killed or injured by exchanges of fire,” according to Yoo’s memo.

Yoo argued that President Bush would “be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties. … We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection.”

Yoo wrote that his ideas would likely be seen as violating the Fourth Amendment. But he said the terrorist attacks on 9/11 and the prospect that future attacks would require the military to be deployed inside the U.S. meant President Bush would “be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.”

In his 2006 book, War by Other Means: An Insider’s Account of the War on Terror, Yoo cites various arguments for local and federal law enforcement agencies, as well as a sitting U.S. President, to ignore the Fourth Amendment, especially regarding domestic surveillance.

“If al-Qaeda organizes missions within the United States, our surveillance simply cannot be limited to law enforcement,” Yoo wrote. “The Fourth Amendment’s warrant requirement should not apply, because it is concerned with regulating searches, not with military attacks.”

The Times report said, “at least one high-level meeting was convened to debate the issue, at which several top Bush aides argued firmly against the proposal to use the military, advanced by Mr. Cheney, his legal adviser David S. Addington and some senior Defense Department officials.”

“Among those in opposition were Condoleezza Rice, then the national security adviser; John B. Bellinger III, the top lawyer at the National Security Council; Robert S. Mueller III, the director of the Federal Bureau of Investigation; and Michael Chertoff, then the head of the Justice Department’s criminal division.”

However, senior military officials, including Richard Myers, the chairman of the Joint Chiefs of Staff, were never consulted about the proposal.

“Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna” New York, the Times reported. “Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody.”

Bush eventually ordered the FBI to arrest five Yemeni Americans suspected of having ties to al-Qaeda in Lackawanna. A sixth person was arrested in Baharain immediately immediately thereafter. All six pleaded guilty to guilty to terrorism-related charges.