By R. Jeffrey Smith
Sunday, February 28, 2010; B02
"Do we know if Boo Boo is allergic to certain insects?"
In mid-2002, Justice Department lawyer John Yoo posed this question to a fellow attorney about newly captured al-Qaeda operative Zayn al-Abidin Muhammed Hussein, better known by his nom de guerre, Abu Zubaida. It was one of many odd moments in secret deliberations by the government's top lawyers over how far CIA interrogators could go in pressing captives for information that they hoped would save lives.
The fruits of that dialogue were, in part, the two notorious 2002 Office of Legal Counsel memos justifying waterboarding, wall slamming, extended sleep deprivation, the use of insects and similar interrogation methods. Career Justice Department lawyer David Margolis recently described those documents as "an unfortunate chapter in the history" of that office.
The memos -- one of which Yoo internally called his "bad things opinion" -- were treated as soothing gospel by many of the attorneys privy to the CIA program. But after their public disclosure in 2004, they were rewritten by new Bush administration appointees.
The aftermath is well known: The CIA collected some useful information while conducting interrogations that Director of National Intelligence Dennis Blair last year called "graphic and disturbing." FBI Director Robert Mueller barred his agents from participating, and Army Gen. David Petraeus denounced such "expedient methods" as "nonbiodegradable. . . . The enemy continues to beat you with them like a stick."
Margolis and several of those interviewed in an internal probe by the Justice Department's Office of Professional Responsibility (OPR) -- released Feb. 19 -- attributed some of the legal mistakes to the unsettled meaning of underlying laws and to urgent pressures caused by the 2001 terrorist attacks. "Everyone was freaked out," said Patrick F. Philbin, then a deputy assistant attorney general and one of the lawyers who approved the memos before they were sent to the CIA.
New crises will undoubtedly arise to test the wisdom of government officials in novel ways. And although the results of Justice's nearly five-year investigation have been controversial, a few lessons emerge from the OPR's 650-plus pages of contentious argument, illustrating how officials can avoid heading down legal and bureaucratic paths that much of the executive branch, Congress and the public would later regret.
Don't claim certainty when confronting complex dilemmas for the first time.
One of the 2002 memos examined an Israeli court ruling that found five interrogation methods illegal. "Isn't there some language in the opinion that we can characterize as showing that the court did not think the conduct amounted to torture?" Yoo asked a colleague about the judgment. The colleague responded, "Unfortunately, no." But the memo said nonetheless that the ruling was "best read" as if the methods did not amount to torture, a conclusion that the OPR and Margolis later judged "misleading" or "flawed."
Steven G. Bradbury, who later became principal deputy and acting head of the legal counsel's office at the Justice Department, told OPR investigators that "somebody should have exercised some adult leadership" in drafting the memo. Michael Mukasey, the attorney general in 2007 and 2008, told the OPR that the memo was a "slovenly mistake," though not one that warranted a finding of professional misconduct.
Margolis concluded that Yoo's memo lacked appropriate nuance, overstated "the certainty of its conclusion" and failed to "expose (much less refute) countervailing arguments." The OPR report also noted that those in the legal counsel's office relied on the CIA's broad descriptions of the proposed methods, and never sought a precise account of how the prisoners were to be kept awake or forced to maintain "stress positions."
Yoo defends his work but told investigators that when judging the relevance of prior rulings, he "looked at the cases quickly," and he conceded that one of the key conclusions was "just not clear," according to the OPR report.
Remember that today's convincing hypothesis can become tomorrow's outrage.
No matter how much lawyers and spies might rue scrutiny of their past actions by new appointees, shifting political winds are inescapable in Washington. In May 2005, for example, Bradbury, then the acting assistant attorney general, signed a memo excusing CIA interrogators from liability for violating a global torture treaty so long as their actions did not "shock the contemporary conscience."
That standard seemed durable because it allowed the gravity of pain and suffering to be weighed against a "paramount interest of the United States in the security of the nation." But by 2009, when the national mood had shifted, both President Obama and Attorney General Eric Holder declared that the CIA's use of waterboarding -- a simulated drowning technique authorized by the memo -- amounted to torture.
OPR investigators reported that John Bellinger, the State Department's legal adviser in 2007, said Bradbury's main conclusions in a similar memo that year were "so contrary to the commonly held understanding of the treaty that . . . the memorandum had been 'written backwards' to accommodate a desired result."
Bellinger complained at the time, in a note to Bradbury, that while the analysis of the precise meanings of relevant words and phrases in a related memo had been careful, Bradbury appeared to have "missed the forest for the trees. Will the average American agree with the conclusion that a detainee, naked and shackled, is not being subject to humiliating and degrading treatment?"
Bradbury responded, in part, that Bellinger evidently had forgotten his own role in supporting similar positions while serving as the National Security Council's legal adviser in 2003. Bellinger declined to comment last week.
Don't expect that legal analysis will be insulated from politics.
Yoo said he felt no pressure to skew his analysis. But Bellinger said he concluded that Yoo was "under pretty significant pressure" to determine that the interrogation program was legal. Philbin said that when he raised concerns about a section of the memo claiming sweeping presidential power to decide what is legal, Yoo told him, "They want it in there," later explaining that the CIA may have suggested it -- a claim that then-acting CIA general counsel John Rizzo denied.
Yoo and Jay Bybee, head of the Office of Legal Counsel, both identified Vice President Richard Cheney's counsel, David Addington, as their "client" during the drafting process, although the memos were written for Rizzo.
Daniel Levin, who as acting head of the Office of Legal Counsel drafted memos that replaced Yoo's, reported that the White House "pressed" him to reiterate the office's legal support for the CIA's interrogation methods. Then-Deputy Attorney General James B. Comey wrote in a 2005 e-mail that Attorney General Alberto Gonzales told him he had been pressured by Cheney to produce opinions that would rebut congressional concerns about the CIA program.
Don't restrict decision-making to a clique of like-minded individuals.
Yoo was given his national security assignments at the urging of Addington and Cheney, who held the same views Yoo did about giving interrogators wide legal latitude -- a view Rizzo described as "a very aggressive interpretation" of the statutes on torture. Yoo is quoted in the OPR report as asserting in an interview that presidential powers include the authority to order the massacre of a village of "resistants," though his attorney said the passage was cited out of context.
"I fear," Margolis said, "that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power."
Bellinger, who Yoo said told him not to inform the State Department about the 2002 legal review as it got under way, was himself subsequently excluded from the Justice Department's dialogue with the CIA.
Never ignore dissenters -- they will all be writing memorandums for the record.
Deputy Attorney General Comey was adamantly opposed to the issuance of a 2005 memo -- which he said was strongly pushed by Cheney and his staff -- authorizing the CIA's use of multiple harsh interrogation techniques on individual prisoners. He warned Gonzales's chief of staff that it would "come back to haunt the AG and DOJ" and that "the people who were applying pressure now would not be there when the [expletive] hit the fan."
Comey told investigators that he summarized his objections in an e-mail to his chief of staff, "to memorialize what he considered to be a very important and serious situation." In the e-mail, he emphasized that when all the memos emerged, he hoped "the hit is taken by those individuals who occupied positions at OLC and [the attorney general's office] and were too weak to stand up for the principles that undergird the rest of this great institution."
R. Jeffrey Smith is a reporter on the national staff of The Washington Post.