By: Jason Leopold, 26 February 2010:

The National Archives and a watchdog group sent letters to the Justice Department Thursday demanding an investigation into the destruction of John Yoo’s emails in the summer of 2002 when he and other government attorneys prepared and finalized legal memoranda for the CIA that redefined torture and authorized interrogators to brutalize “war on terror” detainees.

The Federal Records Act (FRA) requires the preservation of government documents. Records cannot be destroyed unless approved by the National Archives and Records Administration (NARA). According to the Justice Department’s website, emails fall under FRA if it pertains to government business.

The Federal Records Act (FRA) requires the preservation of government documents. Records cannot be destroyed unless approved by the National Archives and Records Administration (NARA). According to the DOJ’sweb site, emails fall under FRA if they pertain to government business.

Last week, the DOJ’s Office of Professional Responsibility (OPR) released a long-awaited report into the legal work former Office of Legal Counsel (OLC) attorneys Yoo and Jay Bybee did for the Bush administration on torture. Yoo currently works as a law professor at UC Berkeley and Bybee received a lifetime appointment as a federal judge on the Ninth Circuit Court of Appeals.

Legal opinions written by Yoo in August 2002 and signed by Bybee cleared the way for the Bush administration to subject detainees to the near drowning of waterboarding and other brutal treatment at the hands of CIA interrogators.

Waterboarding and some of the other interrogation techniques sanctioned by the Bush administration, such as slamming detainees against walls and depriving them of sleep, have long been considered acts of torture and have been treated and prosecuted as war crimes. However, Yoo – working closely with Bush administration officials – claimed that the techniques did not violate US criminal laws and international treaties forbidding torture.

Further, Yoo asserted that Bush’s presidential powers were virtually unlimited in wartime, even a conflict as vaguely defined as the war on terror.

But Yoo, the report concluded, was found to have “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”

Bybee was found to have “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.” OPR investigators deemed this to be a violation of “professional standards” and recommended that Yoo and Bybee be referred to state bar associations where they could have had their law licenses revoked. Career prosecutor David Margolis, however, downgraded the criticism to “poor judgment,” which means the DOJ now won’t make the referral.

The voluminous report noted, however, that while OPR investigtors were initially provided us with a relatively small number of emails, files, and draft documents,” it became “apparent, during the course of our review, that relevant documents were missing…”

OPR “requested and were given direct access to the email and computer records of REDACTED, Yoo, [Deputy Assistant Attorney General Patrick] Philbin, Bybee, and [fomer OLC head Jack] Goldsmith” during the course of the investigation into the creation of the torture memos. But OPR investigators said their probe was “hampered by the loss of Yoo’s and Philbin’s email records.”

OPR investigators said they were told that most of “Yoo’s email records” as well as “Philbin’s email records from July 2002 through August 5, 2002 – the time period in which the Bybee Memo was completed and the Classified Bybee Memo … was created” were deleted and “reportedly” not recoverable. The deleted emails also included other relevant documents the OPR needed to assist its investigation, according to the report.

It is unknown whether any steps were ever taken by DOJ to retrieve the emails before deeming them “unrecoverable.” Curiously, the report says that although OPR investigators “were initially advised that Goldsmith’s records had been deleted, we were later told that they had been recovered and we were given access to them.” The report does not provide further explanation.

In a letter sent Thursday to Jeanette Plante at the DOJ’s Office of Records and Management Policy, Paul Wester, director of the Archives’ modern record program, said, in accordance with federal rules governing the preservation of records, if the “DOJ determines that an unauthorized destruction has occurred, then DOJ needs to submit a report to” NARA.

Wester requested a response within 30 days. A DOJ spokesperson was unavailable for comment.

The destruction of Yoo’s and Philbin’s emails also caught the attention of watchdog group Citizens for Responsibility and Ethics in Washington (CREW), which had waged a years-long legal battle with the Bush administration over its destruction of tens of millions of emails and failed efforts to take steps to recover the documents and  preserve others.

Melanie Sloan, CREW’s executive director, said Thursday, “given the disappearance of millions of Bush White House emails, we shouldn’t be surprised that crucial emails also disappeared from the Bush Justice Department.”

“The question now is what is the Attorney General going to do about it?” she said.

Sloan also sent a letter sent to Attorney General Eric Holder Thursday calling for a criminal investigation into the matter, a request that will likely go unfulfilled given the Justice Department’s and the Obama administration’s unwillingness to further delve into the previous administration’s alleged crimes.

She said such an inquiry is warranted, however, and compared the destruction of emails with the CIA’s destruction of torture tapes, which led to a criminal investigation and the appointment of a special prosecutor by former Attorney General Michael Mukasey. That probe is ongoing.

“The destruction of emails from high-ranking officials such as Messrs. Yoo and Philbin related to a subject of critical important to the Department of Justice and the nation as a whole clearly violates FRA,” Sloan’s letter to Holder said.

Indeed, the DOJ’s web site said emails are federal records if it:

1. Documents agreements reached in meetings, telephone conversations, or other E-mail exchanges on substantive matters relating to business processes or activities
2. Provides comments on or objections to the language on drafts of policy statements or action plans
3. Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities

The DOJ rules for preserving records also said ”the unlawful removal or destruction of federal records” can result in “criminal or civil penalties, fines and/or imprisonment.”

Sloan, in her letter to Holder, said, “the apparent failure of the Department of Justice to take any action in the face of knowledge that crucial records had been destroyed reflects a patent disregard of mandatory federal record keeping laws … Even if Mr. Yoo and Mr. Philbin did not violate their professional obligations by writing the torture memos, they – or others seeking to hide the truth – may have broken the law by deleting their emails.”

Last December, CREW and the historical group the National Security Archive announced that they entered into a settlement with the Obama administration over the loss of Bush administration emails.

Under the terms of the agreement, 22 million previously “missing” emails covering 94 days will be restored. That includes emails from the Office of the Vice President that were previously lost and unrecoverable and were subpoenaed by Patrick Fitzgerald, the special prosecutor appointed to probe the unauthorized leak of covert CIA operative Valerie Plame Wilson. This time frame also coincided with litigation surrounding the release of documents related to former Vice President Dick Cheney’s Energy Task Force meetings.

The emails will be sent to NARA. But whether they contain answers to lingering questions about the CIA leak or Cheney’s energy task force meetings will not be known for years, as the documents will not be immediately available for public view.

Congressional Hearing

The destruction of Yoo’s and Philbin’s email was one of the first issues raised Friday during a Senate Judiciary Committee hearing, where Acting Deputy Attorney General Gary Grindler is currently testifying about the OPR report.

“Have [the emails] disappeared? If they have, and if they have been destroyed,  either the Yoo emails, the Philbin emails, will the [Justice Department] make ultimate determination whether the destruction was criminal, in violation of the criminal statutes, which seem fairly clear?” Judiciary Committee Chairman Patrick Leahy (D-Vermont) asked Grindler.

Grindler testified that he still needs to gather information from the “information technology experts, including all of the questions of what occurred, what the policies are, and what the archive system is. And at that point I’ll be in a position to evaluate whether anything additional needs to be done.”

Grindler said the report does not “suggest there was anything nefarious” about the fact that Yoo and Philbin’s emails were not turned over to OPR investigatiors and he noted that the report “does include a review of some of Mr. Yoo’s emails.”

But Leahy said the episode was cause for concern given that other Bush administration officials were found to have destroyed emails in violation of the Presidential Records Act during time frames that coincided with the lead up to the invasion of Iraq, the leak of Plame’s covert status and other scandals that engulfed the Bush White House.

“All I’m saying is that the report doesn’t have a complete lack of his e-mails,” Grindler said. But as soon as I learn the facts regarding this, I will provide appropriate information back to this committee…If they are retrievable, I will direct [technical staff] to retrieve them.”

After the hearing, CREW filed a Freedom of Information Act request with the Justice Department “seeking documents that would shed light on the destruction” of Yoo’s and Philbin’s emails.

Specifically, CREW wants “copies of record keeping guidance issued to staff of the Office of Legal Counsel (OLC) from January 2000 to the present concerning how electronic records, including email, are to be treated for purposes of federal record keeping laws.”

CREW “also seeks records indicating, reflecting, or commenting on any problems with the storage or retention of emails of OLC staff, including but not limited to” Yoo and Philbin, “from January 2000 to July 2009.”

In a blog post published last Sunday, Marcy Wheeler, who has spent the past week painstakingly dissecting the OPR report, wrote that emails OPR did obtain “provide a key piece of evidence that the White House was responsible for the way in which the Bybee One memo served as a blank check, as well as the pressure the White House put on the lawyers as they were drafting the memos.”

“The emails put the White House squarely in the drafting process” of the torture memos, Wheeler wrote on her blog emptywheel. “But that’s all, with most emails from John Yoo and Patrick Philbin still disappeared. It sort of makes you all the more curious about what was in the Yoo and Philbin emails that got deleted, huh?”

Read Leopold’s report @ truthout –>  National Archives, Watchdog Demand DOJ Probe Destruction if John Yoo’s Emails ~ Digg it HERE

by:  H.P. Alberelli and Jeffrey Kaye :

On Tuesday, February 10, the British High Court finally releaseda “seven-paragraph court document showing that MI5 officers were involved in the ill-treatment of a British resident, Binyam Mohamed.” The document is itself a summary of 42 classified CIA documents given to the British in 2002.

[snip]

The revelations regarding Mohamed’s torture, which include documentation of the fact the US conducted “continuous sleep deprivation” under threats ofharm, rendition, or being “disappeared,” were criticized by the British court as being “at the very least cruel, inhuman and degrading treatment by the United States authorities,” and in violation of the United Nations Convention Against Torture.

The Mohamed case is the most prominent of a number of cases that have come to public attention. While the timeline of Mohamed’s torture places the implementation of the Bush administration’s so-called “enhanced interrogation techniques” many months prior to their questionable legal justification in the August 1, 2002, Jay Bybee memo to the CIA, the use of torture and rendition has a much earlier provenance…

[snip]

Read the compelling report @ truthout–> The Real Roots of the CIA’s Rendition and Black Sites Program – 17 February 2010

As you may have seen reported, in a perfect exclamation point to the obstruction we’ve seen all year, when the Senate adjourned last week, the Republicans objected to what is ordinarily a routine request to waive Senate rules and permit pending nominations to remain in the Senate confirmation pipeline. Without what’s called “unanimous consent,” under Senate rules, pending nominations must be returned to the President, who then has to re-nominate in the next session. In what has become a far too typical exercise by the “Just Say No” party, Republicans objected to three DOJ nominees who have been on the Senate’s calendar awaiting consideration for months: Dawn Johnsen, for the Office of Legal Counsel; Chris Schroeder for the Office of Legal Policy; and Mary Smith, for the Tax Division. They also objected to two pending federal District Court nominees (Edward Chen, for a seat on the Northern District of California and Louis B. Butler for a seat on the Western District of Wisconsin) and to Craig Becker for reappointment as a member of the National Labor Relations Board…

Follow the link below to read more:

via Dawn Johnsen and the GOP Obstruction Game | People For the American Way Blog.

Related on PiP:

Tell the Senate, GOP – Stop Stalling on Dawn Johnsen OLC Confirmation

Evidence of torture, new and old, has landed President Obama in a bit of a quandary.  A significant percentage of his supporters are calling for criminal prosecution of Bush officials responsible for apparent war crimes.  Meanwhile, the President’s detractors pose numerous counter arguments, recommending against investigating the Bush Administration’s torture policy.  Barack Obama is in a tight spot, and his impetus to “look forward, not back” is understandable considering the antagonistic state of political affairs in America.  However, as unpleasant as investigations and prosecutions will be domestically, external perspectives need to be considered.

Perhaps the most important foreign perspective worth considering is that of our enemy:  Al Qaeda.  How is the argument over torture within the U.S. perceived by Osama Bin Ladin ?  More importantly, how does it impact their recruiting capacity?  To a certain extent, we already know the answers.

One extremely informed opinion was published at The Daily Beast last week.  Writing under the pseudonym, Matthew Alexander, a 14 year Air Force interrogator offered his assessment in a April 20 post.  Responding to Christopher Buckley’s and Michael Mukasey’s criticisms of Obama for releasing the previously classified Office of Legal Council torture memos, Alexander wrote:

Our policy of torture and abuse of prisoners has been Al Qaida’s number one recruiting tool, a point that Buckley does not mention and is also conspicuously absent from former CIA Director General Michael Hayden and former Attorney General Michael Mukasey’s argument in the Wall Street Journal. As the senior interrogator in Iraq for a task force charged with hunting down Abu Musab Al Zarqawi, the former Al Qaida leader and mass murderer, I listened time and time again to captured foreign fighters cite the torture and abuse at Abu Ghraib and Guantanamo as their main reason for coming to Iraq to fight. Consider that 90 percent of the suicide bombers in Iraq are these foreign fighters and you can easily conclude that we have lost hundreds, if not thousands, of American lives because of our policy of torture and abuse…

In addition to increasing Al Qaeda’s pool of recruits, the torturing of detainees has undoubtedly led counter terrorism officials to waste time and resources chasing invented threats.  Former Middle East CIA field officer, Robert Baer noted in the May 4 print issue of Time that the Bush Administration selected their techniques from a 1957 paper regarding communist efforts during the Korean War:

The Crucial point, though, is that even the communists suspected that torture can’t be relied on to produce more than false confessions — because people will say anything to make the pain stop.  This is the history that Bush officials chose to ignore…

I’d love to know what you think.  If you’re able, set aside the moral and legal implications of the Bush Administration’s treatment of captured enemy combatants.  Then consider the implications of the above informed commentators, Alexander and Baer; respectively, that torturing our prisoners makes it easier for our enemies to recruit, and that waterboading, specifically, is more likely than not to produce false information from a prisoner.  These tactics, then, are quite contradictory to the maintenance of U.S. national security.

(Originally posted at Care2.com, Political Causes Blog 28 April 2009)

Cross posted at Care2.com’s Political Causes Blog

Dawn Johnsen, Barack Obama’s nominee to head his administration’s Office of Legal Counsel (OLC), is potentially the most qualified candidate ever selected for the position.  Nominated February 11 and approved by the Senate Judiciary Committee March 19, the Indiana University law professor has yet to be considered by the full Senate.  What’s the hold up, you may ask?  It appears that Johnsen is but another among many who has fallen victim to Republican obstructionism and the minority party’s ongoing misuse of the filibuster.

The Republican filibuster threat is only the most immediate cause for delay; forcing Senate Majority Leader, Harry Reid (D-NV) to scramble for the 60 votes necessary for cloture, followed by an up or down vote which would undoubtedly result in Johnsen’s confirmation.  The underlying causes behind GOP opposition to Johnsen stem from two ideological issues; one of which has been blown out of proportion by right-wing activists.  The other, more significant reason for fighting Obama’s OLC nominee is grounded in GOP fear that she, unlike her Bush administration OLC predecessors, may actually follow the law.

Right-wing activist opposition to Johnsen pertains to her past work for NARAL, a pro-choice advocacy organization.  More specifically, their objection pertains to a 1989 brief in which Johnsen’s organization — along with 76 others — argued against states having the right to prohibit abortions at public health institutions.

Johnsen’s critics have zeroed in on two sentences within a footnote, which they employ claiming the OLC nominee equated motherhood with “involuntary servitude.”  It’s an assertion which Politifact declared, March 24, to be “false.”

Of course, right-wing pundits further afield have taken Johnsen’s words and maliciously converted them, as AmericanConservative.org did September 19, placing the Obama nominee as number 41 among 650 unpalatable administration officials as, “Dawn ‘Compared Pregnancy with Slavery’ Johnsen.”  No matter how it’s stated, however, Johnsen’s pro-choice stance is and has always been remarkably mainstream.

“The real reason” for the GOP stance in opposition to Dawn Johnsen was imparted by Scott Horton, March 26, at The Daily Beast:

…Johnsen is committed to overturning the Bush administration’s policies on torture and warrantless surveillance, which would clip the wings of the imperial presidency. Even more menacingly (from their perspective), she is committed to shining a light on some of the darkest skeletons of the Bush years.

If this is correct, then Horton’s assessment lends credence to that of Glenn Greenwald, whose aptly titled post, “Dawn Johnsen’s belief in the rule of law disqualifies her from Senate consideration,” was published May 13 at Salon.com. Within his post, Greenwald emphasized the fact that the Senate’s scrutiny of Johnsen was tragically absent in its confirmation of some previous, ultimately dubious, past nominees:

The Senate that is refusing to confirm Dawn Johnsen is the same Senate that confirmed Gen. Michael Hayden as CIA Director — with overwhelming Democratic support — even after it was revealed that he oversaw Bush’s illegal NSA spying program.  It’s the same Senate that confirmed Alberto Gonzales as Attorney General — with substantial Democratic support — even once everyone knew that he had played a key role in Bush’s torture program.  It’s the same Senate that — thanks to Democrats Dianne Feinstein and Chuck Schumer — confirmed Michael Mukasey as Attorney General even after he refused to say whether waterboarding was torture and endorsed some of the most extremist presidential powers ever asserted in the U.S.

In other words, their covering their collective butts, and their doing so at the expense of a nation in desperate need of objective legal guidance.

Fortunately, there are those willing to tell their senators to quit stalling.  A good example of this was a September 22 letter from the Leadership Conference on Civil Rights, written behalf of several organizations, directing Senate Minority Leader Mitch McConnell (R-KY) to drop the stall tactics on Obama nominations.

The LCCR letter refers to Johnsen, specifically:

…Professor Johnsen has already served with distinction in the OLC, and is undoubtedly well-qualified for the position. Her nomination was approved by the Senate Judiciary Committee in March.  The OLC plays a highly important role within the Administration, and the failure to confirm the President’s nominee to lead the office prevents the OLC from providing crucial legal advice on a wide range of issues currently confronting our nation.

I’ll include some additional links below, but if you agree with the sentiment of the above letter, contact your senators and tell them so.  Additionally, consider signing THIS PETITION from NARAL-Pro-Choice America, calling on GOP senators to refrain from filibustering on the basis of any candidate’s pro-choice disposition.

See Also:

“A Legal Advisor Worthy of the Job,” New York Times Editorial Board, 26 March 2009.

Greg Sargent, “Key Dem Senator Likely to Vote Against Top Obama Legal Nominee,” ThePlumLine, 24 April 2009.

Scott Horton, “Are Republicans Blackmailing Obama?” TheDailyBeast, 5 April 2009.

[youtube=http://www.youtube.com/watch?v=_A8IywX1Arw]

I love The Onion so much… Here is yet another brilliant piece of satire, and a remarkable and realistic presentation of cable TV punditry.

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This was originally published @ Care2.com:

Former Vice President, Dick Cheney, was at it again last Sunday.  He adamantly vocalized his disapproval of President Obama’s national security policy, and was incredulous about the idea that Bush Administration officials should be investigated for their treatment of enemy combatants.  Of course, Cheney has every right to voice his opinion in these matters, though such criticism from a former VP is highly unusual.  However, considering the Bush Administration’s past behavior in politicizing traditionally non-political government entities, how are the claims of Dick Cheney, in any way, credible?

On last Sunday’s Face the Nation, one of Cheney’s statements deserved more scrutiny than the 30 min. program allowed:

One of the things that I did six weeks ago was I made a request that two memos that I personally know of, written by the CIA, that lay out the successes of those policies and point out in considerable detail all of — all that we were able to achieve by virtue of those policies, that those memos be released, be made public.

First of all, the “two memos… that lay out the successes of those policies,” couldn’t possibly discount that torturing detainees enhanced the ability of terrorists to recruit new supporters.  So, even if the memos in question reveal productive results, those results were, at best, a push when considering the policy’s impact on US national security.

Second, and more importantly, how can two memos vindicate policies that were in clear violation of prescriptions within the Geneva Conventions and the UN Convention Against Torture?  Jeremy Scahill summed up why the policies can’t be excused, particularly as they apply to the latter, “This is a matter of law and US obligations to its international treaties, which the Constitution explicitly states the US will respect and enforce.”  The memos, even if they support what Cheney suggests, are illustrative of a policy that was blatantly illegal.

Finally, consider the behavior of Dick Cheney and others in the run up to the Iraq invasion.  There is a pattern of deceptive practices by Bush officials in shaping policies and intelligence to fit their goals.  The Office of Special Plans (OSP) is an instructive example.  Jason Leopold, presently of ThePublicRecord.org, reported for Truthout.org in 2007:

The Office of Special Plans routinely provided President Bush, Rumsfeld, Cheney and Condoleezza Rice, who headed the National Security Council at the time, with questionable intelligence information on the Iraqi threat. Much of that information was included in various speeches by Bush and Cheney, and some was never vetted for accuracy by career CIA analysts…

…Patrick Lang, a former director of Middle East analysis at the Defense Intelligence Agency, said in an interview with the New Yorker in May 2003 that the Office of Special Plans “started picking out things that supported their thesis and stringing them into arguments that they could use with the president. It’s not intelligence. It’s political propaganda.”

The OSP was developed by Donald Rumsfeld out of frustration regarding the lack of actionable intelligence on Iraq’s capabilities and intentions.  Headed by Douglas Feith — whom Gen. Tommy Franks once referred to as the “Dumbest MF’er on the planet” — the OSP did not gather new intelligence.  Rather, the Department of Defense office reinterpreted existing data, cherry-picking and restating evidence to support the invasion of Iraq.  When Dick Cheney insists upon a link between Al Qaida and Saddam Hussein, the OSP is the source of his evidence.  Of course, we now know there was no such link.

This is merely one example, but when considered along with Cheney’s insistence that waterboarding “worked” and “kept us safe,” how can he be taken seriously?  Let me know what you think.

Personally, I wouldn’t put it past Cheney to contort evidence to fit his narrative.  It is entirely plausible that, in calling for the release of the two CIA memos, the former Vice President is cherry-picking evidence just as he did before the invasion of Iraq.  Further, it is more than plausible, as was indicated today by FBI agent, Ali Soufan, in his testimony before Congress that the interrogation methods DO NOT WORK.  Soufan said the harsh techniques were “ineffective, slow and unreliable and as a result, harmful to our efforts to defeat al-Qaida.”:

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When the past actions of Dick Cheney are considered along with his present public statements, it is entirely possible that torture was employed, not to discover a link between Al Qaida and Iraq, but to create one.

From CommonDreams.org, 7 May 2009 post by, Jermy Scahill:

…First, I would recommend that anyone who thinks it is a “stretch” to prosecute lawyers who provided legal justifications for torture to read the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was signed by President Ronald Reagan. Specifically, read these portions:

Article 21. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

[...]

Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

[...]

Article 7

1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

The US is legally bound to this convention and I would argue that the attempted legalizing and authorizing of torture, such as was done by Bybee, Yoo and Bradbury is exactly what this treaty addresses and bans…

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