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This article, by Jason Leopold, was originally posted to Truthout.org, June 17, 2009
On January 25, 2002, then-White House counsel Alberto Gonzales advised George W. Bush in a memo to deny al-Qaeda and Taliban prisoners protections under the Geneva Conventions because doing so would "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act" and "provide a solid defense to any future prosecution."
Two weeks later, Bush signed an action memorandum dated February 7, 2002, addressed to Vice President Dick Cheney, which denied baseline protections to al-Qaeda and Taliban prisoners under the Third Geneva Convention. That memo, according to a recently released bipartisan report issued by the Senate Armed Services Committee, opened the door to "considering aggressive techniques," which were then developed with the complicity of then-Defense Secretary Donald Rumsfeld, Bush's National Security Adviser Condoleezza Rice, and other senior Bush officials.
"The President's order closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al-Qaeda or Taliban detainees," says the committee's December 11 report.
"While the President's order stated that, as 'a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions,' the decision to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in US custody."
The Supreme Court held in 2006, in Hamdan v. Rumsfeld, that the prisoners were entitled to protections under the Geneva Conventions.
Many of the classified policy directives, such as Gonzales's memo to Bush, are now part of the public record thanks to the American Civil Liberties Union's (ACLU) Freedom of Information Act lawsuit against the Bush administration, which has so far resulted in the release of more than 100,000 pages of documents that shows how Bush officials twisted the law in order to build a legal framework for torture.
These documents have been posted on the ACLU's web site. But several hundred of the most explosive records were republished in the book "Administration of Torture" along with hard-hitting commentary by the ACLU's Jameel Jaffer, who heads the group's National Security Project, and Amrit Singh, a staff attorney with the organization.
Rumsfeld Wanted a "Product"
On February 14, 2002, just one week after Bush signed the action memo, Maj. Gen. Mike Dunlavey was contacted by Rumsfeld, who asked him to attend a Defense Department meeting with Rumsfeld, Wolfowitz, and others on February 21 or 22. At the meeting, Rumsfeld told Dunlavey he wanted him to oversee interrogations at the Guantanamo Bay naval facility in Cuba. Prisoners captured by US military personnel had first arrived at Guantanamo a month earlier. Dunlavey was a family court judge in Erie County, Pennsylvania, when he got the call from Rumsfeld and was placed in charge of interrogations at Guantanamo.
Rumsfeld told Dunlavey, according to a witness statement he made on March 17, 2005, to US Air Force Lt. Gen. Randall Schmidt, who was investigating FBI complaints about abuse at Guantanamo, that the Department of Defense had rounded up "a number of bad guys" and the secretary of defense "wanted a product and wanted intelligence now." Rumsfeld "wanted to set up interrogation operations and to identify the senior Taliban and senior operatives and to obtain information on what they were going to do regarding their operations and structure," Dunlavey said, according to a copy of his witness statement. "Initially, I was told that I would answer to SECDEF (Secretary of Defense) and [US Southern Command]. The directions changed and I got my marching orders from the President of the United States. I was told by the SECDEF that he wanted me back in Washington, DC every week to brief him.... The mission was to get intelligence to prevent another 9/11." Dunlavey did not explain what he meant by "I got my marching orders from the president." But his comments suggest that Bush may have played a much larger role in the interrogation of prisoners than he has let on. Moreover, Dunlavey's witness statement indicates that harsh interrogations, such as waterboarding, may have taken place earlier than previously known and may have preceded an August 1, 2002, legal opinion issued by the Justice Department's Office of Legal Counsel authorizing specific interrogation techniques to use against prisoners.
As early as December 2001, according to the documents obtained by the ACLU, high-ranking military officials began to implement an Army and Air Force survival-training program called Survival, Evasion, Resistance and Escape (SERE), which were meant to prepare US soldiers for abuse they might suffer if captured by an outlaw regime.
In June 2004, Gen. James Hill of Southern Command, the Defense Department's command unit responsible for military operations in Central and South America and the Caribbean, held a press briefing and confirmed that interrogation techniques specifically authorized by Rumsfeld for use at Guantanamo were derived from the SERE school. In October 2002, Dunlavey wrote to Hill to seek authorization that interrogators be granted the authority to use methods that strayed from the Army Field Manual in order to extract information from prisoners.
Dunlavey, in making his case to Hill for authority to use more aggressive techniques, attached a copy of Bush's then classified February 7, 2002, action memo along with an analysis that said, "since the detainees are not [Enemy Prisoners of War] the Geneva Conventions limitations that ordinarily would govern captured enemy personnel interrogations are not binding on US personnel." Hill sent Dunlavey's request to Gen. Richard Myers, chairman of the Joint Chiefs of Staff. Myers discussed it with William Haynes II, the Defense Department's general counsel, who briefed Deputy Secretary of Defense Paul Wolfowitz and Undersecretary of Defense for Policy Doug Feith. The request ultimately ended up on Rumsfeld's desk and he approved it, according to the documents.
"The documents establish that senior officials in Washington, including White House Counsel Alberto Gonzales, constructed a legal framework that would permit the abuse and torture of prisoners," the ACLU's Jaffer and Singh wrote in "Administration of Torture." "They establish that Secretary of Defense Donald Rumsfeld, relying on this legal framework, expressly authorized the use of interrogation methods - including SERE methods - that went far beyond those endorsed by the Army Field Manual. They establish that Rumsfeld and Gen. Geoffrey Miller oversaw the implementation of the newly authorized interrogation methods and closely supervised the interrogation of prisoners thought to be especially valuable."
In early December 2002, FBI officials who had participated in some interrogations at Guantanamo complained to Miller that the methods used against prisoners at Guantanamo were unlawful. But Miller was not receptive. That led FBI officials to conclude that senior Bush administration officials and Rumsfeld were making decisions about interrogations in particular.
A December 16, 2002, email written by an FBI official expressed frustration that the Defense Department refused to budge from its controversial interrogation methods.
"Looks like we are stuck in the mud with the interview approach of the military vs. law enforcement," the email said.
In May 2004, Miller told the Senate Armed Services Committee that he briefed Wolfowitz and Undersecretary of Defense Stephen Cambone about his plan to "Gitmo-ize" the Abu Ghraib prison.
That month, an email written by a senior FBI agent in Iraq in 2004 specifically stated that President George W. Bush had signed an executive order approving the use of military dogs, sleep deprivation, and other tactics to intimidate Iraqi detainees.The FBI email, dated May 22, 2004, followed disclosures about abuse of Iraqi detainees at Abu Ghraib prison and sought guidance on whether FBI agents in Iraq were obligated to report the US military's harsh interrogation of inmates when that treatment violated FBI standards, but fit within the guidelines of a presidential executive order.
According to the email, Bush's executive order authorized interrogators to use military dogs, "stress positions," sleep "management," loud music and "sensory deprivation through the use of hoods, etc." to extract information from detainees in Iraq.
The May 2004, FBI email stated that the FBI interrogation team in Iraq understood that despite revisions in the executive order that occurred after the furor over the Abu Ghraib abuses, the presidential sanctioning of harsh interrogation tactics had not been rescinded.
"I have been told that all interrogation techniques previously authorized by the Executive Order are still on the table but that certain techniques can only be used if very high-level authority is granted," the author of the FBI email said.
"We have also instructed our personnel not to participate in interrogations by military personnel which might include techniques authorized by Executive Order but beyond the bounds of FBI practices."
The White House had emphatically denied that any such presidential executive order existed, calling the unnamed FBI official who wrote the email "mistaken." Prior to the May 22, 2004, email several others written by FBI agents that month were sent to Valerie Caproni, the FBI's general counsel, about detainees being tortured before the unnamed agent sent Caproni the email citing Bush's alleged executive order.|
On July 9, 2004, the FBI's Office of Inspections distributed an email asking its agents who were stationed at Guantanamo whether they had witnessed, "Aggressive treatment, interrogations or interview techniques ... which were not consistent with FBI interview policy/guidelines." More than two-dozen agents responded that they observed numerous instances of detainee abuse. One FBI agent wrote that, despite Rumsfeld's public statements to the contrary, the interrogation methods "were approved at high levels w/in DoD." In addition to Rumsfeld, the FBI emails said Paul Wolfowitz, one Bush administration official who has largely escaped scrutiny in the torture debate, approved the methods at Guantanamo.
In 2006, Miller received a Distinguished Service Medal for "exceptionally meritorious service." Dunlavey is an Erie County judge.
This article, by Phillip Zelikow, was published in Foriegn Policy, May 8, 2009
I first gained access to the OLC memos and learned details about CIA's program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice's policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues. In the State Department, Secretary Rice and her Legal Adviser, John Bellinger, were then the only other individuals briefed on these details. In compliance with the security agreements I have signed, I have never discussed or disclosed any substantive details about the program until the classified information has been released.
Having been the executive director of the 9/11 Commission, I'm aware of what some of these captives did. The Commission wondered how captives were questioned (for details on that, see this previously disclosed report), and the matter is now the subject of a federal criminal investigation by special prosecutor John Durham. Nonetheless, the evidence against most -- if not all -- of the high-value detainees remains damning. But the issue is not about who or what they are. It is about who or what we are.
Based on what had earlier been released, I have offered some general views on "Legal Policy for a Twilight War." With the release of these OLC memos, I can add three more sets of comments, each of which could be developed at much greater length.
1. The focus on water-boarding misses the main point of the program.
Which is that it was a program. Unlike the image of using intense physical coercion as a quick, desperate expedient, the program developed "interrogation plans" to disorient, abuse, dehumanize, and torment individuals over time.
The plan employed the combined, cumulative use of many techniques of medically-monitored physical coercion. Before getting to water-boarding, the captive had already been stripped naked, shackled to ceiling chains keeping him standing so he cannot fall asleep for extended periods, hosed periodically with cold water, slapped around, jammed into boxes, etc. etc. Sleep deprivation is most important.
2. Measuring the value of such methods should be done professionally and morally before turning to lawyers.
A professional analysis would not simply ask: Did they tell us important information? Congress is apparently now preparing to parse the various claims on this score -- and that would be quite valuable.
But the argument that they gave us vital information, which readers can see deployed in the memos just as they were deployed to reassure an uneasy president, is based on a fallacy. The real question is: What is the unique value of these methods?
For this analysis, the administration had the benefit of past U.S. government treatment of high-value detainees in its own history (especially World War II and Vietnam) and substantial, painful lessons from sympathetic foreign governments. By 2005, the Bush administration also had the benefit of what amounted to a double-blind study it had inadvertently conducted, comparing methods that had evolved in Iraq (different Geneva-based rules, different kinds of teams) and the methods the CIA had developed, with both sets being used to against hardened killers.
Opponents should not overstate their side either. Had a serious analysis been conducted beforehand (it apparently was not), my rough guess is that it might have found that physical coercion can break people faster, with some tradeoff in degraded and less reliable results.
Which underscores the importance of moral analysis. There is an elementary distinction, too often lost, between the moral (and policy) question -- "What should we do?" -- and the legal question: "What can we do?" We live in a policy world too inclined to turn lawyers into surrogate priests granting a form of absolution. "The lawyers say it's OK." Well, not really. They say it might be legal. They don't know about OK.
3. The legal opinions have grave weaknesses.
Weakest of all is the May 30 opinion, just because it had to get over the lowest standard -- "cruel, inhuman, or degrading" in Article 16 of the Convention Against Torture. That standard was also being codified in the bill Senator John McCain was fighting to pass. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 does apply to these prisoners. Violation of Common Article 3 is a war crime under federal law (18 U.S.C. section 2441), a felony punishable by up to life imprisonment. (The OLC opinions do not discuss this law because in 2005 the administration also denied the applicability of Common Article 3.)
The OLC holds, rightly, that the United States complies with the international standard if it complies with the comparable body of constitutional prohibitions in U.S. law (the 5th, 8th, and 14th Amendments). Many years earlier, I had worked in that area of the law. I believed that the OLC opinions (especially the May 30 one) presented the U.S. government with a distorted rendering of relevant U.S. law.
At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn't entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives.
Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:
the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA's methods;
the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.
the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law -- whatever the alleged gain.
The underlying absurdity of the administration's position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail.
In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest -- if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.
This article, by Jason Leopold, was posted to the Public Record, March 31, 2009
Doug Feith, the former Undersecretary of Defense for Policy, is best known for cooking up bogus prewar Iraq intelligence linking Iraq and al-Qaeda and 9/11.
But in addition to his duties to his duties stove piping phony intelligence directly to former Vice President Dick Cheney, Feith was also a key member of a small working group of Defense Department officials who oversaw the implementation of “enhanced interrogation techniques” at Guantanamo Bay that has been widely regarded as torture.
Last weekend, Spain’s investigating magistrate Baltasar Garzon, who issued an arrest warrant for former Chilean dictator Augusto Pinochet in 1998, ordered prosecutors to investigate Feith and five other senior Bush administration officials for sanctioning torture at the prison facility.
On Sunday, Feith responded to the charges. He told the BBC he that "the charges as related to me make no sense.”
"They criticize me for promoting a controversial position that I never advocated," Feith claimed. But Feith’s denials ring hollow.
The allegations against Feith contained in the 98-page complaint filed in March 2008 by human rights lawyer Gonzalo Boye and the Association for the [Dignity] was largely gleaned from a lengthy interview Feith gave to international attorney and University College London professor Phillpe Sands. Sands is the author of “Torture Team: Rumsfeld's Memo and the Betrayal of American Values.
The other Bush officials named in the complaint are: former Justice Department attorneys John Yoo and Jay Bybee, Alberto Gonzales, Cheney’s counsel David Addington, and former Pentagon general counsel William Haynes, II. The charges cited in the complaint against these officials was also largely based on material Sands cited in his book about the roles they played in sanctioning torture.
Last year, in response to questions by Armed Services Committee Chairman Carl Levin, Condoleezza Rice, who, as National Security Adviser, was part of a working group that included Haynes, Yoo, Addington and Gonzales, said interrogation methods were discussed as early as the summer of 2002 and Yoo provided legal advice at “several” meetings that she attended. She said the DOJ’s advice on the interrogation program “was being coordinated by Counsel to the President Alberto Gonzales.”
Yoo met with Gonzales and Addington to discuss the subjects he intended to address in two August 2002 torture memos, according to a declassified summary of the Armed Services Committee report. Feith’s was also included in the discussions.
Sands wrote that as early as 2002, “Feith’s job was to provide advice across a wide range of issues, and the issues came to include advice on the Geneva Conventions and the conduct of military interrogations.”
Feith told Sands that he “played a major role in” George W. Bush’s decision to sign a Feb. 7, 2002 action memorandum suspending the Geneva Conventions for al-Qaeda and Taliban prisoners who were imprisoned at Guantanamo Bay.
The memo did say that prisoners had to be treated “humanely,” but Feith told Sands the verbiage needed “to be fleshed out.” “But it’s a fine phrase—‘humane treatment,’” Feith added. Still, even with the phrase intact, the Common Article 3 restrictions against torture and “outrages upon personal dignity” were removed. Feith said 2002 was a special year for him.
“This year I was really a player,” Feith told Sands.
“I asked him whether, in the end, he was at all concerned that the Geneva decision might have diminished America’s moral authority,” Sands wrote. “He was not. ‘The problem with moral authority,’ [Feith] said, was ‘people who should know better, like yourself, siding with the assholes, to put it crudely.’”
“Douglas Feith had a long-standing intellectual interest in Geneva, and for many years had opposed legal protections for terrorists under international law” Sands wrote in his book. “He referred me to an article he had written in 1985, in The National Interest, setting out his basic view. Geneva provided incentives to play by the rules; those who chose not to follow the rules, he argued, shouldn’t be allowed to rely on them, or else the whole Geneva structure would collapse. The only way to protect Geneva, in other words, was sometimes to limit its scope. To uphold Geneva’s protections, you might have to cast them aside.”
In addition to Sands’ account, the Senate Armed Services Committee and the American Civil Liberties Union have released documents showing that Haynes regularly briefed Feith about a list of aggressive interrogation techniques for use against “high-value” Guantanamo detainees.
According to an executive summary of the Armed Services Committee report released last December, “techniques such as stress positions, removal of clothing, use of phobias (such as fear of dogs), and deprivation of light and auditory stimuli were all recommended for approval.”
In November 2002, Haynes sent Secretary of Defense Donald Rumsfeld a memo stating that he “had discussed the issue [of enhanced interrogations] with Deputy Secretary of Defense Paul Wolfowitz, Under Secretary of Defense for Policy Doug Feith, and General [Richard] Myers and that he believed they concurred in his recommendation.”
The Senate Armed Services Committee is expected to release a declassified version of its report that will include a full account of Feith’s role in implementing a policy of torture at Guantanamo. The report is 200 pages, contains 2,000 footnotes, and will reveal a wealth of new information about the genesis of the Bush administration's interrogation policies, according to these sources. The investigation relied upon the testimony of 70 people, generated 38,000 pages of documents, and took 18 months to complete.
Other documents released last year show that Feith worked closely with Pentagon general counsel William Haynes II in 2002 on an Army and Air Force survival-training program called Survival, Evasion, Resistance and Escape (SERE), which were meant to prepare U.S. soldiers for abuse they might suffer if captured by an outlaw regime, against detainees at Guantanamo. One of the SERE techniques used against detainees was waterboarding.
Moreover, Feith and Haynes were members of a Pentagon "working group" that met from January through March 2003 and prepared a report for Rumsfeld stating what methods military interrogators could use to extract information from a prisoner at Guantanamo. Yoo worked on the legal memo for the group.
Early drafts of the report advocated intimidating prisoners with dogs, removing prisoners' clothing, shaving their beards, slapping prisoners in the face and waterboarding.
Though some of the more extreme techniques were dropped as the list was winnowed down to 24 from 35, the final set of methods still included tactics for isolating and demeaning a detainee, known as "pride and ego down."
Such degrading tactics violated the Geneva Convention, which bars abusive or demeaning treatment of captives.
Rumsfeld signed the Feith’s and Haynes final report on April 2, 2003, two weeks after Bush ordered U.S. forces to invade Iraq.
One year later, photos depicting U.S. soldiers abusing and humiliating detainees at Abu Ghraib prison in Iraq were publicly released.
According to a report by a panel headed by James Schlesinger on the Abu Ghraib prisoner abuses in 2004, Lt. Gen. Ricardo S. Sanchez said Bush’s Feb. 7, 2002, memo suspending Geneva Conventions, which Feith had said he was principally responsible for, led him to implement "additional, tougher measures" against detainees.
This article, by Jason Leopold, was posted to Op-Ed News, April 1, 2009
Before leaving office, senior Bush administration lawyers secured changes in a Justice Department watchdog agency's report that reportedly was sharply critical of legal opinions granting President George W. Bush sweeping powers, including the right to abuse "war on terror"- captives.
In a letter to two U.S. senators, the Justice Department said the changes to the report by the Office of Professional Responsibility followed comments from then-Attorney General Michael Mukasey, then-Deputy Attorney General Mark Filip and the Office of Legal Counsel, which was still run by its acting chief, Steven Bradbury, one of three lawyers who had been singled out for criticism in OPR's initial draft.
"Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments [after the first draft was completed in December], and OPR revised the draft report to the extent it deemed appropriate based on those comments,"- said acting Assistant Attorney General Faith Burton in a March 25 letter to Sens. Sheldon Whitehouse, D-Rhode Island, and Richard Durbin, D-Illinois, members of the Senate Judiciary Committee.
Burton also said that the final OPR report may undergo more revisions based on responses from the former OLC lawyers who were criticized and that a final version may not be released for some time, if at all. "Due to the complexity and classification level of the draft report, the review process "- likely will require substantial time and effort,"- Burton said.
Legal sources familiar with the internal debate about the draft report say OPR is in the process of "watering"- down the criticism of legal opinions by OLC lawyers John Yoo and Jay Bybee in 2002 and 2003 and by Bradbury, who in 2005 reinstated some of the Yoo-Bybee opinions after they had been withdrawn by Assistant Attorney General Jack Goldsmith when he headed the OLC in 2003 and 2004.
That back-and-forth over the OLC's judgments regarding President Bush's powers rest at the heart of the Bush administration's defense of its "enhanced interrogation"- techniques that have been widely denounced as torture, such as waterboarding which subjects a person to the panicked gag reflex of drowning and which was used on at least three "high-value"- detainees.
Bush officials insist that they were acting under the guidance of the Justice Department's Office of Legal Counsel, which advises Presidents on the scope of their constitutional powers. For the OPR report to conclude that Yoo, Bybee and Bradbury violated their professional duties as lawyers and, in effect, gave Bush pre-cooked legal opinions to do what he already wanted to do would shatter that line of defense. Conflict Question
In a response to Burton's letter, Durbin and Whitehouse questioned whether Bradbury's dual role as the acting head of the OLC and one of the criticized lawyers created a "conflict of interest"- regarding revisions made to the draft in the last days of the Bush administration.
Bradbury "is reportedly a subject of the OPR investigation,"- the senators wrote. "As such, it would appear to be a conflict of interest for Mr. Bradbury to review and comment on the OPR report on OLC's behalf."-
Durbin and Whitehouse also noted that Bradbury wrote two memos in the final months of the Bush administration distancing himself from some of the Yoo-Bybee opinions while insisting that they had acted in good faith as lawyers.
Three months before Bush exited the White House, Bradbury wrote that some of those controversial opinions were "the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11."-
In another memo dated Jan. 15, five days before Bush left office, Bradbury repudiated some Yoo-Bybee legal opinions, but said the flawed theories did not mean Justice Department lawyers failed to "satisfy" professional standards.
Rather, Bradbury cited "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."
Bradbury's Jan. 15 memo appeared to be in response to the draft OPR report, raising other concerns from Durbin and Whitehouse.
"If Mr. Bradbury did review the OPR report, this could have improperly influenced the opinions he expressed on OLC's behalf,"- the senators wrote. "Particularly his decision to emphasize that the authors of discredited OLC opinions on detainee issues had not necessarily violated their professional responsibilities."-
Durbin and Whitehouse added that they are "concerned"- that the final OPR report "" when it is delivered to Attorney General Eric Holder and to Congress "" will have "undergone significant revisions at the behest of the subjects of the investigation without the benefit of reviewing OPR's initial draft report."- [For more on the Yoo-Bybee opinions, see Consortiumnews.com's "How Close the Bush Bullet.] Investigating Legal Theories
The OPR probe was launched in mid-2004 after a meeting in which Jack Goldsmith, then head of the OLC, got into a tense debate with White House lawyers, including Vice President Dick Cheney's legal counsel David Addington. Goldsmith had withdrawn some of the Yoo-Bybee opinions because he felt they were "legally flawed"- and "sloppily written."
After the meeting, Goldsmith resigned and was subsequently replaced on an acting basis by Bradbury, who restored some of the controversial Yoo-Bybee opinions in May 2005, again granting Bush broad powers to inflict painful interrogations on detainees.
Sources familiar with the OPR draft report said it reached "damning"- conclusions about numerous cases of "misconduct"- in the advice from Yoo, Bybee and Bradbury that was provided to the White House about interrogations and domestic surveillance.
OPR investigators determined that all three blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration's goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.
One part of the OPR report criticized Yoo's use of an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted waterboarding and other acts that have historically been regarded as torture under U.S. law, the sources said.
In public comments responding to the criticism of his legal opinions, Yoo said his government work gave him "very little time to make very important decisions. "- You don't have the luxury to research every single thing and that's accelerated in war time."-
Last weekend, it was disclosed that Spanish investigative judge Baltasar Garzon had taken initial steps for launching a criminal probe of torture that was allegedly made possible by the work of six former Bush administration officials, including Yoo, Bybee and Addington as well as former Attorney General Alberto Gonzales.
Garzon, whose court is famous for dealing with high-profile terrorism and torture cases, asserts standing in the investigation because international anti-torture laws have provisions for universal jurisdiction, meaning that if the implicated country (in this case the United States) doesn't act against alleged torturers, other countries may.