It’s like the Bush straw arguments (some people say I shouldn’t go after terrists) and of course, it leaves you with a different feel than the real argument.

It was the policy to make sure that, even while the Bybee memo was being withdrawn, it would be done in a manner that relieved anyone who tortured under the Bybee and specific CIA and DOD memos with comfort that they were scott free. So while Levin authored the replacement memo with footnote reprieve, it was a follow through on decided policy. The miserable failure I see isn’t so much the waiting 7 months to withdraw, as the set policy of making sure all the withdrawals were done in ways that were calculated to best let torturers off scott free.

The excerpt you reference on the DOD memo, I told Ashcroft in dec 2003 I was going to withdraw the March 2003 OLC [an opinion for the DOD interrogation based on the Bybee 2002 memo] opinion, but allow the DOD to continue the 24 techniques is, I think, pretty much exactly what I said above isn’t it? That while he withdrew the DOD opinion, he then went ahead and approved all the same things?

If you haven’t read the Mayer piece on Alberto Mora and his fights on this front, then I guess we may not be on the same page as to whether or not those 24 techniques (almost all of which were absolute clear violations of the Uniform Code of Military Justice) constitute torture. IMO, yes they did and so the Goldsmith replacement DOD memo is a torture memo. What happened is that that same things were allowed, but based on the internal reasoning of the replacement memo and not on the Bybee memo.

I’m not sure if the Oct 2003 memo that you reference is the Article 49 draft memo, but I think it is and if so, you missed my point entirely on that memo.

“My october 2003 decision [written after becoming OLC head] that all Iraqis, including Iraqi citizens who were members of al Qaeda, were “protected persons” under the Fourth Geneva Convention included an exception for members of al Qaeda in Iraq who were not Iraqi citizens…. wondered whether anyone had exploited this loophole as a justification for abusing non-Iraqi al Qaeda members found in Iraq.”
…
So Mary. The article 49 references are to the October 2003 OLC memo of his making non-Iraqi citizen al Qaeda in Iraq non-protected persons. This is a bit different than how you characterize it (wherein Goldsmith specifically said all Iraqis, including Iraqi members of al Qaeda in Iraq are protected persons.) But it is indeed a loophole.

I don’t think you followed how I was characterizing the Article 49 memo, since I wasn’t talking about the clear and “grave” Geneva Conventions breach in that memo, without regard to having to prove any kind of abuse occuring after the Article 49 violation. Article 49 of the Geneva Conventions says that no protected persons may be taken out of country by the invading/occupying forces. Yes Goldsmith did agree that Iraqis were protected persons – that is so clear it would be mindboggling to reach any other conclusion. That’s why the draft memo was so atrocious.

Let me try again to explain. Despite the fact that Article 49 says no protected persons can be taken out of country for any reason or motive, the draft Goldsmith memo that has been referenced says that while all Iraqis are protected persons, it is perfectly ok to violate Article 49 and disappear them out of country to be interrogated, as long as its not forever. See the problem? And it has been reported (I gave links above) that the draft opinion (does Goldsmith say whether or not he signed it out?) was relied on by the CIA and others to violate Article 49 and to take Iraqis out of country for interrogation.

Now, our US War Crimes Act applies to grave breaches of the Geneva Conventions, but without necessarily giving a complete listing of what those are. But the Conventions themself refer to violations of Article 49 as grave breachs. And while Goldsmith’s memo went to Iraqi protected persons (and authorized a “temporary” grave breach of Article 49 against those protected persons), my other point is that Article 49 also applies to all the civilians who were non-combatants in Afghanistan or elswhere and who were illegally purchased and shippped to GITMO. One reason that all the CSRTs “had” to find that every single person was a combatant, was that if any one of them were not found to be a “combatant” the mere shipment of them to GITMO, even without hard evidence of abuse there, is a breachof Article 49 and therfore a grave breach of the Conventions and therefor a war crime under our domestic War Crimes Act.

So I went off on two tangents there – what Goldsmith’s draft memo did (authorizing the violation of Article 49 on a “nonpermanent” basis with respect to Iraqi protected persons) and what Article 49 violations in general mean vis a vis GITMO detentions. But I didn’t say or characterize the Article 49 memo as a torture memo (and the fact that Goldsmith says he worried over whether the fact that he excluded non-Iraqi al qaeda might mean they were abused as non-protected persons is I guess interesting, but since that was being done on a broad basis based on the original non-combatant/not covered by Geneva Conventions memo – which was never withdrawn and was instead overruled by the court in Hamdan – I’m not sure I know how he thought that memo would impact in one way or another on that front.

I do know that Article 49 is about as crystal clear as it gets and there is no authorization for forcing protected persons out of country and the draft memo saying that “oh sure, you can violate Article 49, as long as you don’t leave them out of country permanently” (an oversimplification, but that’s the highlighed point) is just ridiculous.

Hope that helps – so far I’m not seeing anything from those passages that would change my criticism though.

“After many conversations with Philbin, I decided that I should not withdraw the opinions until I could affirmatively inform the Defense Department and CIA precisely what interrogation practices were legally available under proper analysis… I hoped that providing replacement guidance when I withdrew the opinions would minimize the expected panic [by the CIA and DOD interrogators who had tortured based on Bybee green light] throughout the government about the consequences of withdrawal.”

Next para synopsis:
The 24 approved DOD interrogation techniques were all approved by Philbin and Goldsmith as consistent with the Geneva Conventions and not in violation of the “torture statute or any other applicable law.”
The techniques do not include waterboarding.

Next Para:
I told Ashcroft in dec 2003 I was going to withdraw the March 2003 OLC [an opinion for the DOD interrogation based on the Bybee 2002 memo] opinion, but allow the DOD to continue the 24 techniques. “Ashcroft was not terribly surprised and did not resist”. “I didn’t inform the White House about my decision… I knew that running the matter by Gonzales and Especially Addington would make it much harder to fix the opinions. I technically didn’t need White House approval, so I didn’t seek it.”

Next para:
regarding informing Haynes about the March 2003 OLC withdrawal.
“The 24 techniques you approved are legal, but please come back for additional legal guidance before approving any other technique, and do not rely on the March 2003 opinion for any reason.”

Next para: about how Haynes acted promptly on Goldsmith’s advice.

Next para: The subsequent paras are the setup for withdrawal of the bybee 2002 OLC memo, upon which the CIA techniques were based.
“The 2002 opinionand the attendant CIA techniques, unlike the ones approved by the Pentagon, had been vetted in the highest circles of government.”
“I wasn’t as confident that the CIA techniques could be approved under a proper legal analysis”.

Next para: about Abu Ghraib;
“My october 2003 decision [written after becoming OLC head] that all Iraqis, including Iraqi citizens who were members of al Qaeda, were “protected persons” under the Fourth Geneva Convention included an exception for members of al Qaeda in Iraq who were not Iraqi citizens…. wondered whether anyone had exploited this loophole as a justification for abusing non-Iraqi al Qaeda members found in Iraq.”

Next Para:
talks about the press reports June 7 of the Draft March 2003 DOD memo relying on the 2003 OLC memo. Then the WaPo article about the Bybee memo on June 8.
“I was under pressure from all quarters in the Administration to stand by and affirm the August 2002 opinion [Bybee memo]….But 5 months earlier I had withdrawn the March 2003 OLC opinion after concluding that the identical legal analysis of torture contained in the August 2002 opinion was flawed beyond repair.”

Next:
“When I finally informed John Ashcroft and David Ayres about my decision on Tuesday morning, June 15, 2004, they were understandably shaken….. I sensed for the first time that he [Ashcroft] might be questioning my judgement, and I wondered when I left his office whether he would agree with my decision or exercise his prerogative to overrule me.”

Next:
Ashcroft had accepted Goldsmith decision to withdraw.

Next:
“In the same meeting I handed the Attorney General my resignation…. Comey and I agreed that this timing would make it hard for the White House to reverse my decision without making it seem like I had resigned in protest.”

So Mary. The article 49 references are to the October 2003 OLC memo of his making non-Iraqi citizen al Qaeda in Iraq non-protected persons. This is a bit different than how you characterize it (wherein Goldsmith specifically said all Iraqis, including Iraqi members of al Qaeda in Iraq are protected persons.) But it is indeed a loophole.

And the other point that needs made are Goldsmith’s authorship of Torture Memos. Quite simply put, there are none. He withdrew the OLC 2003 (for DOD) and the OLC 2002 (Bybee).

Where he failed miserably was waiting 7 months to withdraw the Bybee memo. He knew in December 2003 that it was flawed, but sat on it until Abu Ghraib precipitated his concerns.

At any rate, I really think you should read the book as if nothing else it will help hone your criticisms.

81. In an interview with Dana Priest (The Washington Post) published in March 2005, another CIA official involved in “renditions” described other countries’ “assurances” as “a farce”28, and admitted that it was widely understood that interrogation practices that would be illegal in the United States were being used29. In the same interview, he said that “They say they are not abusing them, and that satisfies the legal requirement, but we all know they do”30.

And notice how silent all the recent stories are about DOJ? The FBI is a part of DOJ – do you really think an FBI agent threatens to arrest CIA interrogators and Mueller never hears about it? Or that Coleman’s very vocal objections to the Zubaydah torture never come to his ears? And isn’t Cloonan on the record that Mueller was given his concerns about the al-Libi transfer? And isn’t Fallon on the record that during 2002 or so, the FBI had a scheme going to render some detainee(s) from GITMO to a place where they could be more thoroughly tortured and that his team had to intervene – - so Mueller never heard about that either? That Mueller didn’t know his FBI agent’s delcaration in the Padilla case was based on torture? That Mueller never discussed any of these things with his boss, Ashcroft then AGAG or his pal Comey?

And that Scott Muller at CIA, who petitioned DOJ directly to allow for morebetter rights to designate missionary flights to be shot from the sky with ensuing deaths of women and children, never really talked to anyone in DOJ? Or that the extensive review Comey says was done prior to the Padilla press conf never generated any of the info about Zubaydah’s and Binyam Mohammed’s torture?

The dogs that aren’t barking have my attention more than the ones that are – and the crimes of not turning over info for years before it was destroyed – - -plus the likely destruction of a long list of other info – have my attention just as much as the references to the tapes that were destroyed. The ED of VA lawyers filing apologies with Brinkema couldn’t have drafted their redacted letter more narrowly.

So what country wants our brand of democracy?

I’ve been reading Three Cups of Tea (highly recommended) and one of the things that keeps striking me is how Mortenson was treated by first the Iranian mullahs, and later by the “Shariat” and how he compares this with the treatment of detainees at GITMO by our government. How shocking is it when an “infidel” in a lawless land gets more justice from Sharia than we give to a London bipolar chef who was mistakenly and secretively labelled an “al-qaeda General” and disappeared into years of solitary confinement?

There were probably at least 3 memos. The broad stroke memo, the Bybee August memo which Goldsmith withdrew and for wich the replacement was not generated until after he was gone, has the footnoted reference. It is my understanding that this was the OLC decision from the time that the original opinion was withdrawn, however, i.e., that there would be “clearance” recognized for prior actions, particular those that were specifically addressed in the other two memos.

Again, my understanding (and feel free to correct details) is that in addition to the broad stroke memo, OLC generated at least two other memos, one for DOD and one for CIA. Those memos authorized specific abuses of detainees. Again, it is my understanding that Goldsmith did not withdraw the CIA memo at all and that he withdrew the DOD memo only in a “kinda sorta” way – with a replacement memo that pretty much allowed and encouraged and solicited all the same abuses, but just with what he viewed as better reasoning and not relying on the withdrawn Bybee memo (iow, a freestanding abuse memo that didn’t need the Bybee memo for its underpinnings, so the Bybee memo could be nominally withdrawn to fanfare, without affecting the authorized abuses under Goldsmith’s replacement classified memo).

With all the secrecy, it’s hard to say what really is or isn’t, but that’s my understanding to date. Although I refuse to buy a book in order to have a public servant who was “paid and placed” reveal what he did in office, it would be interesting to know if he mentions his article 49 draft that was floating around. Does that get acknowledged in his book?

For longtime intelligence analysts, this method of bureaucratic warfare is especially personally destructive, since it means loss of the security clearance essential to continue decades of work in the public or private sector. (In egregious cases, it may also lead to loss of all government benefits, heightening the victim’s – and all potential victims’ – vulnerability.) It is, therefore, inherently and personally vicious unless the result of overwhelming evidence of guilt. I haven’t seen that published.