This month’s issue of The American Lawyer includes a piece I wrote on the CIA’s Office of General Counsel. Click here to read it (.pdf).
An interesting legal issue that I didn’t mention in the piece involves a document released to the ACLU in August titled “Legal Principles Applicable to CIA Detention and Interrogation of Captured al-Qa’ida Personnel.”(.pdf)
It was written by unnamed CIA attorneys with help from John Yoo, the attorney in the Justice Department’s Office of Legal Counsel. The OLC provides authoritative legal advice to the Executive Branch, and Yoo authored a whole bunch of controversial opinions dealing with torture and wiretapping and who knows what else that were later rescinded.
The “Legal Principles” was drafted in the spring of 2003. Why it was drafted isn’t clear. A few months earlier, Yoo had given the CIA specific advice on the interrogation of Abu Zubaydah, (.pdf) whom President Bush called one of the top three leaders in al-Qaida.
The key difference between the classified Yoo memo and the CIA’s “Legal Principles” is that the latter broadened the application of “enhanced” interrogation, including the waterboard, to apply to anyone connected with the terrorist group.
The “Legal Principles” memo also set no limits on the number of times that the waterboard could be applied, and it added new techniques such as diapering to the list of approved interrogation techniques previously authorized.
Thus the document provided the legal cover needed for aggressive interrogation of all al-Qaida personnel, not just one.
Or did it?
Whether or not the Justice Department formally approved the “Legal Principles” and with it, the expansion of the CIA’s interrogation program, is now a matter of dispute.
The Office of Legal Counsel at the Justice Department said the undated and unsigned bullet points do not constitute a formal opinion, and that this position was made clear to the CIA.
According to the CIA’s Office of General Counsel, the “Legal Principles” memo “embodies DoJ agreement” that the Justice Department’s opinion “extends beyond” the interrogation of a single detainee. The agency also cited a National Security Council meeting in July 2003, during which Attorney General John Ashcroft approved use of multiple applications of the waterboard on other detainees.
Even with Ashcroft’s verbal assent, it became clear that the CIA was legally on shaky ground without a formal opinion.
In a review of the interrogation program, CIA Inspector General John Helgerson apparently recommended that CIA lawyers seek a formal opinion from the Justice Department confirming the conclusions outlined in the bullet points.
In March 2004, CIA General Counsel wrote Jack Goldsmith, head of the Justice Department’s Office of Legal Counsel, and asked him to “reaffirm” these “Legal Principles.” Goldsmith declined to do so.
The debate over the “Legal Principles” memo isn’t merely academic. The question of who authorized what is a critical one, especially as a federal prosecutor is reviewing the interrogation program to see whether crimes may have been committed.
As human rights lawyer John Sifton asked, “Without formal authorization, how can anyone involved in the subsequent authorization assert that their actions were legally authorized?”
The “Legal Principles” memo may be the most overlooked document in the whole torture debate.