They were likely all referred during Bush as far as I can tell; although that quote does not rule out one or two since January 20. Referrals from OIG are not necessarily traditional referrals for criminal prosecution, they can also be submitted for “review for consideration”. It is my understanding many of the OIG referrals were of this type, which leads back to the above paragraph concerns.

Technically, Holder (DOJ is who they get referred to; not by. Holder can certainly assign them – such as to an AUSA like Durham – who can make a charging determination or undertake further investigation.

I wouldn’t be surprised if they came earlier, although from this letter to Durbin
http://www.talkingpointsmemo.c…..nee-cases/
from Brian Benzckowski, OIG was still making referrals re: crim conduct @CIA (not necessarily re: the torture program – the nature isn’t clear) in 2007 (”Since January 2007, there have been four additional referrals by the OIG to the EDVA, all of which have been declined.”)

Can you or someone else explain this to me?
* Why, or on what grounds, would EDVA “decline” all of these referrals?
* Were all these Bush referrals, or were any done under Obama?
* Might the declinations have to do with sloppiness [my conjecture] in the way the referrals were made? IOW, were these pro forma referrals?
* Could Holder, or Durham, refer these cases again, with stronger briefs?

IANAL, so much of this stuff is over my head, but I’m trying to understand.

Bob in AZ

Nah…on second thought, Dr. Evil could take some pointers from Addington and Cheney…

if so, by whom?

who might be the bush admin’s secret defense attorney on torture-related matters?

The Brits are investigating another torture referral,unrelated to Binyam Mohamed.
http://www.guardian.co.uk/worl…..s-miliband

And no one with the Obama administration is doing much about the death of this guy
http://en.wikipedia.org/wiki/M…..Al_Hanashi
at GITMO.

He’s there for 7 years and dies two or three weeks after getting a lawyer assigned to him and before they get a chance to interview him? All on Obama’s watch. And the guy who other prisoners elected to represent them was, according to Binyam Mohamed, taken in January, just days before Obama’s inaugeration, for a meeting with Admiral David Thomas (commander, jtfgitmo) and Col. David Vargo, commander of GITMO’s guard force and he doesn’t seem to have returned to population after that. Then he dies a few months later after getting a lawyer appointed to represent him. No independent investigation done.

Now Pakistan is reporting a pretty large raft of what appear to be military killings in SWAT. Luckily, we’ve got a guy in charge of AFPAK who understands using the military to disappear people, so I guess that’s good. And the new guy is now saying what the old guy said – we need more troops – and kind of leaving off the “for what” and “at what cost” bits too.

But Obama’s a good orator, so it’s all ok.

A visual map which shows the hand-offs and the missing handoffs.

Rather like a graphic of an audit trail.

But there’s never instant action on referrals and I’m interested in the timeline and what seems like some almost deliberate vagueness around some of the dates. You have Bybee/Yoo in 2002 cough out absolute nonsense on “specific intent” to support an approach that as long as you were also intending to ask a question, it didn’t matter if you knew the natural and probable and reasonably foreseeable consequences of your act were torture.

This may or may not have been preceded in July 2002 by military counsel having been appointed for Zubaydah (you are way more up to snuff on Levin’s stuff than I am, do you remember seeing anything about that – such early appointment of counsel for AZ or why – if it happened, plans for an impending Flaniganesque military commission is the only thing I can think of) and complaining of how he was treated. If it did happen, it gives some better context to things that came after.

In any event, you get the Bybee memos and it very much sounds like you also get consultations of some kind involving Chertoff during 2002 and 2003. It’s Rockefeller’s report that nails down his attendance at the meeting with Levin (who was FBI at the time) isn’t it? You also have Chertoff on the torture field trip in Sept 2002 and seemingly working a lot harder than most of the participants to keep his presence on that trip quiet. And you have some kind of conflicting stories about Chertoff, which might not be all that conflicting if he, while arguing for trials of the suspects and also arguing for keeping FBI out of the interrogations, also was willing to offer up arguments and rationales for not charging the CIA program participants with crimes. But even though he offers them up, he won’t put them in writing or give any written non-prosecution agreement of any kind (although how much has been pushed on this front?).

Then he goes off to be a Judge (in 2003). Referrals begin coming in and Chris Wray – who was with Fisher and Chertoff on the torture fieldtrip IIRC – is now head at Crim Div. I’m not a fan of his from what I’ve seen in print, but he was a real litigator with real skills and knowledge (and I think he’s one of the ones who was going to walk out with Comey) and if the referrals started coming in and he got access to some of the memos, he’d have known in a heartbeat that Yoo and Bybee had screwed the pooch.

He may also have been invovled in discussions with Chertoff when defenses for CIA program participants were discussed. So at Main Justice he is coordinating referring the referrals out to McNulty’s kids at EDVA and you have in the background the issue of DOJ’s former head of crim div, as well as these opinions regarding intent that are clearly wrong and so clearly that no one could reasonably rely on the assertion that its ok to to do things you know are torture as long as you were going to ask a question too (and from the Deuce Martinez article, it’s not even clear that the active torture invovled active questions or just “softening up” for later questioning).

Goldsmith is talking to Comey some, Comey to Levin later, etc. and one thing Levin and Comey do that I’ll give credit for is to get out the Dec 2004 opinion, which in addition to the splashier aspects on its face, it gets to the more nitty gritty issue of specific intent and that it is NOT a defense against torture to say that you didn’t have “specific intent” for the natural and probable torture result of your actions, if you were also asking a question.

And apparently that causes a lot of concern, even as watered down as Levin could make it. Why the memo was just to Comey, though, and not CC’d to those at CIA who had received the former advice or to the AG – is kind of an interesting thing to extrapolate. Did any referrals include Rizzo or Ashcroft so that those guys shouldn’t really be utilizing OLC for further requests on matters directly involving them? This memo pretty muich had to go out while referrals were out but investigations not finished, or possibly even in response to some initial referrals coming back with declinations based on an incorrect “specific intent” standard from OLC.

Anyway – then Chertoff pops off the court and back on the radar as DHS nominee and suddenly people are popping up to give all that info in the early 2005 story – previously pretty undiscussed topics about Chertoff being involved in crafting the defenses for torturers to use against crim div investigations and they also offer up gratuitously (as if to make sure Chertoff, who had been away from the Dept and on the bench knew about it) the info that there was a new Dec 2004 memo that is causing worry and that there are several guys out there just waiting to pull Chertoff in if that memo has the “wrong” result.

And there sits Wray, who along with Rob Hur wrote a review of Ashcroft’s book that show them as idolizing Ashcroft and who was Chertoff’s second and who went on the torture field trip etc., as head of Crim Div where action was going to meet its final decisions. A crim div that Comey had specifically cut out of any play in Fitzgerald’s investigation. And Wray is not only watching crim referrals come in from OIG, he’s also watching as al-Marabh is taken away from Chicago prosecutors and is publically “deported” to Syria (despite the Arar fiasco) and he’s being asked to testify to Congress, where:

One of Ashcroft’s top deputies, Chris Wray, recently told Congress that he was concerned some terror suspects rounded up after Sept. 11, 2001, were now being deported because prosecutors were having a hard time making terrorism cases or couldn’t expose sensitive intelligence information during court proceedings.

Justice officials told AP that despite concerns about al-Marabh’s possible ties to terrorism, deportation was “determined to be the best option available under the law to protect our national security,” including intelligence sources and methods.

So not only are referrals coming in, public shipments to torture are being made on his watch and despite the Arar outcome. A guy he idolizes (later idolizes in print) is in the crosshairs on many of the authorizations; Thompson had specifically signed off on Arar’s shipment to torture earlier, his former direct boss is now getting print as being involved in torture defense creation for CIA, and McNulty is angling politically from his position as the head of EDVA (a place from which Comey would have likely been able to get info on the sly), which is handling the crim referrals and sending them back declined, with declinations that may well have been as flimsy as the Bybee memos – while Comey and Levin as putting out an official OLC memo that is shooting down the intent defense in part.

I kind of don’t wonder that Wray left. You also had Abramoff hot, and while it’s died down now, the Frist/HCA stuff. And voila – there was Alice Fisher they could nab for Crim Div, a perfect intersect of torture field trips, DOJ crim div involvement in the torture program, and Abramoff and Delay intersect and an HCA intersect. It’s pretty ez to see how she could have been important enough to get in that a recess appointment was almost required.

The upshot of all that rambling is that I wish we had more details on names and timing on referrals, investigations, declinations, etc. The info that has been put out is very vague – no even mentioning the nature of the referrals. And now Helgerson is going back to old Bybee stances and claiming that there just couldn’t have been any criminal intent – even though he made the referrals to start with.

Just how incestuous where those referrals and the reviews and how is it that McNulty, whose crew had been handling the torture referrals (and also the Moussaoui trial where DOJ committed fraud on the court) and who ended up in the center of the USA firings, coming on as DAG. And you had a Senate Judiciary committee, with Fisher getting the nod at Crim Div and Comey leaving, wondering how the hell it was that the top levels of DOJ were so bereft of anyone with crim lit experience when supposedly we were battling terrorism in part through DOJ.

It would make life easier if there were a nice set of time lines on the torture referrals too, but most of that info seems to be still being kept pretty vague.

Drives me insane that the same proponents of a free market are the ones who believe a lot of content should be hidden, whether because of the perception of proprietary rights, or government necessity. Without access to “perfect information,” market participants cannot make perfect market decisions.

Ditto the people when it comes to self-governance; poor information yields poor decisions.

I’m always impressed when I’m browsing FDL, or Atlantic Online, or the New Yorker, and I see accurate conclusions on classified topics. You guys figure it out via open-source and that is, in all seriousness, very impressive (and alarming, if the programs weren’t so reprehensible and illegal).