The Senate Judiciary Committee continues to battle the White House over the release of documents defining the legal limits of torture.

For more than five years, Sen. Patrick Leahy, the Democratic chairman of the committee, has been trying to obtain legal memorandum prepared for the White House by the Department’s of Justice’s Office of Legal Counsel (OLC) that stated the harsh techniques interrogators at the detention center at Guantanamo Bay, Cuba could use against detainees to obtain information about supposed terrorist plans and ways in which the Bush administration could sidestep the Geneva Convention.

“I have been stonewalled even in my repeated request for something as simple as an index of OLC opinions,” Leahy wrote in a letter sent Tuesday to White House Counsel Fred Fielding. Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee, also signed the letter. “On June 16,2003, I sent then Attorney General John Ashcroft a letter requesting an index of all memoranda and opinions rendered by the OLC since January 2001.”

Leahy first requested interrogation-related documents in June 2003. Additional requests were made by Leahy, Specter, and other Committee members in May, June, October, and December 2004, January 2005, November 2006, October 2007, and most recently in July during an oversight hearing with Attorney General Michael Mukasey.

“I reiterated that request on May 12, 2004 and again directly to Attorney General Mukasey at an oversight hearing this July,” Leahy said. “We have never received this information. Nor were we ever provided with an explanation as to why the information was withheld. Examining the role of this Justice Department office in authorizing controversial activities is squarely within the oversight responsibilities of this Committee; in carrying out that responsibility we are entitled, at the very least, to know the subjects on which OLC has provided final legal advice. That after more than five years this Committee has been refused even this simple request is unacceptable.”

Leahy said some classified documents related to detainee interrogations were turned over to his committee but they were heavily redacted which left the committee “unable to understand how statutes within this Committee’s jurisdiction are being interpreted.”

Leahy set a deadline of Aug. 29 for the White House to turn over unredacted copies of the documents to the committee. But as with previous deadlines, Democrats in Congress and the Senate have set related to a wide-range of investigations the White House has refused to comply and the majority party controlling both Houses is unwilling to move beyond the letter writing phase to compel production of documents.

For example, in June, during a hearing in U.S. District Court Washington, D.C., on whether former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten were acted within the law when they chose to ignore congressional subpoenas, Judge John Bates said Congress could have had Bolton and Miers arrested for refusing to testify before a House panel.

While historically Congress has ordered people detained for refusing to comply with subpoenas, the power has not been used in modern times. And the Democrats who control both Houses of Congress have indicated they were unwilling to go that far to compel testimony from Miers and Bolten.

 

ACLU Obtains ‘Torture Memo’

Two weeks ago, the American Civil Liberties Union released a closely guarded legal memo prepared by the OLC on Aug. 1, 2002. The opinion, widely referred to as the “Torture Memo” advised the CIA that its interrogators would not be prosecuted for violating anti-torture laws as long as they acted in “good faith” while using brutal techniques to obtain information from suspected terrorists.

The heavily redacted document was obtained by the ACLU under a Freedom of Information Act request, was signed by then Assistant Attorney General Jay Bybee and specifically outlined approved methods the CIA could use, such as waterboarding, during interrogations. Waterboarding has been regarded as torture since the days of the Spanish Inquisition.

“To validate the statute, an individual must have the specific intent to inflict severe pain or suffering,” the Aug. 1, 2002 memo says. “Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture.”

John Yoo, a former deputy attorney general at the DOJ’s Office of Legal Counsel (OLC), wrote the Bybee memo. A second related memo was issued by the OLC the same month.

The Aug. 1, 2002, legal opinion was based on a statute governing health benefits when Yoo provided the White House with a legal opinion defining torture, according to a former Justice Department official.

Yoo’s legal opinion 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, Yoo wrote, therefore was not considered to be torture.

Yoo, who now teaches at the University of California at Berkeley, also drafted a March 14, 2003 document, nearly identical to the August 2002 memo he authored, that essentially provided military interrogators with legal cover if they resorted to brutal and violent methods to extract information from prisoners. The ACLU under a FOIA request also obtained that document earlier this year.

“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network,” Yoo wrote in the March 14, 2003, opinion.

“In that case, we believe that he could argue that the Executive Branch’s constitutional authority to protect the nation from attack justified his actions.”

The Justice Department’s Office of Professional Responsibility (OPR) launched a formal investigation to determine whether agency attorneys, including Yoo and Bybee, provided the White House with poor legal advice when it drafted the legal opinions. In a Feb. 18, letter sent to Sen. Dick Durbin, the Illinois Democrat who requested the probe, H. Marshall Jarrett, the head of OPR, said his office intends to question Yoo, and his former boss, Jay Bybee, the former head of OLC, now a federal appeals court judge in San Francisco, who signed the “torture memo.”

“Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys,” Jarrett’s letter says, adding that his office may release the findings of the investigation publicly.

The Aug. 1, 2002, memo was prepared the same month the CIA moved to employ a more extreme form of interrogation against al-Qaeda operative Abu Zubaydah.

“The CIA was seeking to determine the legal limits of interrogation practices for use in cases like that of Abu Zubaydah, the Qaeda lieutenant who was captured in March 2002,” according to a Jan. 29, 2005, New York Times article.

The Abu Zubaydah case was the first time that waterboarding was used against a prisoner in the “war on terror,” according to Pentagon and Justice Department documents, news reports and several books written about the Bush administration’s interrogation methods.

The ACLU also obtained two other documents from the Justice Department’s Office of Legal Counsel revolving around the CIA’s interrogation methods.

A Jan. 28, 2003, memo shows that the OLC gave CIA interrogators legal cover to use torture practices referred to as “enhanced interrogation techniques.” The memo also says that, for each session in which these techniques were used, the CIA documented, among other things, “the nature and duration of each such technique employed” and “the identities of those present.”

The undated 2004 memo shows that CIA interrogators were assured that certain interrogation methods, such as “the waterboard,” did not constitute torture and could be used during interrogations. The document also warned, however, that using enhanced interrogation methods could ultimately be subject to judicial review.

Leahy, in his letter to Fielding, said he expected the White House to hand over unredacted copies of documents the ACLU obtained as well as a “comprehensive index of all legal memoranda, letters, or opinions that were issued by the OLC between September 11, 2001, and the present, to provide legal advice to the White House or any department or agency of the executive branch (including the Department of Justice and its components).”

This list shall:

(a) Identify the agency or official who requested the legal advice from the OLC;
(b) Identify the recipient of each legal opinion, letter, or memorandum;
(c) Identify the title of each memorandum, letter, or opinion;
(d) Identify the DOJ or OLC official who signed the opinion, memorandum, or letter;
(e) Include a brief description of the legal issues addressed by the opinion, memorandum,
or letter;
(2) The section entitled “DOJ analysis” from the Central Intelligence Agency’s May 7, 2004 classified Inspector General Report (“CIA IG Report”). According to a redacted version of the report, given to the American Civil Liberties Union in response to a Freedom of Information Act lawsuit, it contains a section entitled “DOJ Analysis”. Any review by the CIA of OLC’s legal reasoning or conclusions regarding detainees or interrogation issues is pertinent to this Committee’s oversight responsibilities.
(3) Memorandum for Alberto R. Gonzales, Counsel to the President, Re: “Protected
Persons” in Occupied Iraq (March 18, 2004). (4) Any final OLC memorandum or written legal advice concerning applicability of the
Fourth Geneva Convention in Iraq, including but not limited to Article 49.