Justice Dept. Disavows Memo on Torture

[TeeYiYi]

Justice Dept. Disavows Memo on Torture

By TERENCE HUNT, AP White House Correspondent

WASHINGTON - The Bush administration laid out its legal reasoning for denying terror war suspects the protections of international humanitarian law but immediately repudiated a key memo arguing that torture might be justified in the fight against al-Qaida.

The release Tuesday of hundreds of pages of internal memos by the White House was meant to blunt criticism that President Bush (news - web sites) had laid the groundwork for the abuses of Iraqi prisoners by condoning torture. The president insisted Tuesday: "I have never ordered torture."

But critics said the developments left unresolved some questions about the administration's current guidelines for interrogating prisoners in Iraq (news - web sites) and around the world. For example, a 2002 order signed by Bush says the president reserves the right to suspend the Geneva Conventions on treatment of prisoners of war at any time.

"These documents raise more questions than they answer," said Sen. Charles Schumer, D-N.Y. "The White House is better off coming clean and releasing all relevant and nonclassified documents."

More: http://story.news.yahoo.com/news?tmpl=story&u=/ap/20040623/ap_on_go_pr_wh/us_prisoner_abuse&cid=544&ncid=716

TYY

[Spazito]

1. Maybe it is just me but this makes NO sense to me at all...

"The Justice Department backed away from Bybee's memo Tuesday. Senior department officials who spoke on condition of anonymity said the memo would be rewritten because it contains advice that is too broad and irrelevant. The officials, who briefed several reporters in a widely publicized news conference, said department policy allowed them to demand anonymity."

Why would they REWRITE a memo??? Here is the definition of a memorandum:

1 : an informal record; also : a written reminder
2 : an informal written note of a transaction or proposed instrument
3 a : an informal diplomatic communication b : a usually brief communication written for interoffice circulation c : a communication that contains directive, advisory, or informative matter

Now, if the Justice memo had no legal authority, why would they REWRITE it?

If it did have legal authority, is it not PROOF of a breach of US Code Title 18, Section 2441, War Crimes?

I honestly don't get this re-write aspect at all, I hope someone can clarify it for me.

[Tellurian]

2. The best reason would be to change the wording...

thereby changing the who, why and wherefore..

[Spazito]

3. but the original is already out there, isn't it....

the 50 some pages that were put on the net about 10 days ago? It makes no sense to re-write a memo that is already public and if the memo they are referring to is not the one that is already in the public purview would they be saying they are going to re-write a memo that the public doesn't know about? It is very odd, imo.

[shaolinmonkey]

4. This administration is big on revisionism.

If you look at the white house site you can see that they tell Google and other search engines not to index *anything*. This is so there is no trail or history of documents in Google's cache.

Just change the document on the Web site and say "we never said that". Scum-sucking pigs.

[TeeYiYi]

5. That's interesting . . .

. . . I didn't know they could do that. It's obvious what they're afraid of. Hmmmm.

TYY

[natrat]

7. i read a headline

today, something like "*ush signed 2002 memo instructing military to not use torture"---i couldn't fucking believe what a bunch of idiots they are. As if anyone (with a brain) believes what they say. Chimp is a smelly pig

[corriger]

10. they are goddamned crooks is the simplest answer

every single thing that these people do has a distinct signature of classic corruption, understand corruption and they even become quite predictable in what they do and more so their reactions. There are plenty of 2d and 3d world examples to look at including, obviously, right in US.

[bullimiami]

6. There is no "rewriting" a memo

They can write a new memo, which can supercede the previous memo.
But that memo is written and signed. FIN.

[Spazito]

9. Exactly!

Reading between the lines of this article, I can only come to the conclusion that bush did sign a directive authorizing torture and that is the "memo" that is being rewritten.

[Edmond Dantes]

12. I think I can help explain this...

As you may recall, I used to be an OLC staff attorney many years ago.

Think of it this way:

An elite team of lawyers (OLC) practicing within a law firm (DOJ) is asked by the General Counsel (the White House Counsel) of client BushCo., Inc. (the White House) to prepare a legal memoranda on a topic relevant to BushCo's Foreign Division (DOD). The elite legal team prepares the legal memo such that the legal conclusions are exactly what the client (BushCo) wants to hear. BushCo's General Counsel (if he concurs) probably forwards the legal memo to the head of BushCo's Foreign Division (Rumsfeld). The Foreign Division takes action in reliance on this legal memo (torturing Abu Ghraib prisoners). The press gets hold of the story, publishes a leaked copy of the otherwise confidential legal memo and the ensuing public outcry hurts BushCo's profits (negatively affects the President's standing in the polls). Embarrassed, the General Counsel for BushCo turns to the law firm and says "WTF"? The law firm and its elite legal team are red-faced. "Ooops. This legal memo contains faulty legal reasoning that we did not notice the first time through. Sorry for the oversight. We'll rewrite the memo, free of charge."

In the interim, the head lawyer on the elite legal team (Bybee) has been rewarded with an appointment to the federal bench. He's home free with life tenure. The law firm's elite legal team can badmouth him all they want in order to cover themselves because there will be no negative impact on Bybee's career.

An interesting aside: If OLC had written a memorandum-OPINION resolving a dispute between State and DOD regarding the proper interpretation of the War Crimes Act, I THINK (if I remember correctly off the top of my head) that OLC memorandum-opinion would be BINDING on the Executive Branch. Such memoranda-opinions are comparable to judicial opinions -- but limited in applicability to the Executive Branch. OLC would have had to overrule itself, rather than simply rewrite a badly-reasoned legal memorandum.

Of course, the Bybee memorandum at issue here was apparently written in response to a request from the White House Counsel. And who knows what may have prompted Gonzales to ask for such advice? I can't figure out yet whether there might have been a strategic reason for having Gonzales request the MEMORANDUM, v. having Rumsfeld/Powell request a legal dispute resolution OLC OPINION -- unless, of course, this was a deliberate attempt by neocons to shift the risk to Gonzales, who the neocons view as an unacceptable US Supreme Court candidate compared to Solicitor General Ted Olsen.


Check out OLC website. http://www.usdoj.gov/olc/opinions.htm

Gonzales, by the way, may have been unduly influenced by former Principal Deputy White House Counsel Timothy E. Flanigan (who left about 6 months after the Bybee memo was issued). Flanigan, who has strong ties to both Senator Hatch and Solicitor General Ted Olsen, headed OLC for a while during Bush I.

[Spazito]

13. Wow, a very complete response to my post, thank you!

Do we know whether OLC has written a memorandum such as you describe in this paragraph:

"An interesting aside: If OLC had written a memorandum-OPINION resolving a dispute between State and DOD regarding the proper interpretation of the War Crimes Act, I THINK (if I remember correctly off the top of my head) that OLC memorandum-opinion would be BINDING on the Executive Branch. Such memoranda-opinions are comparable to judicial opinions -- but limited in applicability to the Executive Branch. OLC would have had to overrule itself, rather than simply rewrite a badly-reasoned legal memorandum."

and a second question, if you don't mind: If there were such a memorandum as described above, what, if any, would be the legal ramifications given actions were taken that were in violation of US Code Title 18, Section 2441 as a result of that legal opinion?

[Edmond Dantes]

14. You are most welcome!

Regarding your first question, off the top of my head, I'm not aware of a dispute-resolution OLC opinion on the torture issue. And the more I think about it, the more odd that seems. After all, there WAS a dispute between State and DOD as to legal interpretation. Such disputes are referred to OLC for a legal opinion that binds the entire Executive Branch. Yet that was not done here, apparently. If it's true that there's no memorandum-OPINION, there must be some reason for it.

Regarding your second question, I would have to mull that over at length. But my initial, gut reaction is that it might well have afforded greater protection for the Abu Ghraib "grunts" (such as England and Graner) who were responsible for the actual torturing.

Oh, man, I think I'm gonna be sick... .

Let me ponder this issue further and, if I have additional thoughts, I will post them.

Additional thoughts: Perhaps even loyal BushCo lawyers working in DOJ's OLC weren't willing to go so far as to opine that "Torture IS justified." But they WERE willing to say that torture MAY BE legally justifiable/defensible. Maybe Rumsfeld believed that language gave him enough to work with -- so he avoided the legal dispute with State (and an inevitable "no, you cannot torture people" opinion from OLC) by simply arranging for Gonzales to request legal advice in the form of a legal memorandum.

Bottom line: If OLC had to resolve a dispute between State and DOD, the OLC lawyers may well have opined in the negative -- no torture. So Rumsfeld had Gonzales raise the issue in the context of requesting legal advice. And OLC accommodated Rumsfeld with a watered-down version of what Rumsfeld really wanted. (That's my current working theory, anyway.) Ultimately, Gonzales is left holding the bag, which is great for neocons who would prefer that Ted Olsen be appointed to the US Supreme Court anyway. Ingenious.

[Spazito]

15. Thank you, I would very much appreciate any thoughts you have on this...

It looks like the Justice Department did not release the 23 documents that were requested by the Democrats on Senate Judiciary Committee. Here is the article:

Senators Battle Over Iraq Abuse Memos

http://www.reuters.com/newsArticle.jhtml?type=politicsNews&storyID=5497974


This paragraph struck me as interesting:

"The Senate Republicans are trying to stonewall the release of Justice Department memoranda on the torture of prisoners," said Sen. Edward Kennedy, a Massachusetts Democrat."

There seems to be an odd disconnect between the news articles regarding the "re-writing" of memos and the normal process as you described in your previous post. One way that would make sense is if one or more of the missing memoranda is/are OLC memo/s that would, in essence, be binding on the Administration. Could that explain the oddity?

[Edmond Dantes]

16. Yes, I think it could explain the discrepancy.

But I'm sure there are other possible explanations as well.

Knowing OLC, I'm going to take an educated guess that the withheld documents are (1) more recent; (2) more relevant; and (3) more damning than those that have been released.

One thing I can promise you: The more you dig in OLC, the more scum you will find. That place is a high-brow legal cesspool.

[Robbien]

8. BushCo is up to its usual tricks

I read at Cursor that Senate Judiciary Committee Democrats pointed out that 21 of the 23 documents they had tried to subpoena were missing from the more than 250 pages released.

BushCo likes to dump a ton of useless paper on us leaving out all the important ones and just smirk when asked where the important ones are.

[calimary]

11. Love those three little words. Let's remember them, and make sure

everyone we know does, also:

"...signed by bush..."

As in "...a 2002 order signed by Bush says the president reserves the right to suspend the Geneva Conventions on treatment of prisoners of war at any time."

Let's keep this one uppermost in mind.