Update: The Nation’s Chris Hayes and I had a chat about the OPR report here.

The OPR Report [searchable PDF here] notes–but does not call much attention to–a Goldsmith footnote on a draft of his attempt to replace the March 2003 Yoo Memo that had authorized torture for us in DOD. In a footnote designed to explain why Yoo’s memo was so bad, Goldsmith notes that in March 2002, OLC ruled that DOD had to abide by the torture statute.

4. “The memorandum incorrectly concludes, contrary to an earlier opinion of this Office, that the torture statute does not apply to the conduct of the military during wartime.” Id. at 2, n.l.

“This conclusion contradicted an earlier opinion of this Office, which had concluded that the torture statute applies to official conduct engaged in by United States military personnel. Memorandum for William J. Haynes, II, General
Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re:. The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody ofForeign Nations at 25-26 (Mar. 13,2002). We agree with the March· 2002 opinion that Congress’s explicit extension ofthe prohibition ofthe torture statute to individuals acting ‘under color of law’ naturally includes military personnel.acting during wartime. We therefore disavow the contrary conclusion on this question in [the Yoo Memo].” June 24, 2004 draft at 29-30, n.28.

Here’s the section of the 2002 opinion–which was signed by Yoo’s former boss, Jay Bybee–Goldsmith was referring to:

This law applies to official conduct engaged in by United States military personnel, as 18 U.S.C. § 2340 (1994) defines “torture” to mean “an act committed by a person acting under the color of law,” and 18 U.S.C. § 2340A(b)(l) explicitly provides United States courts with jurisdiction where ‘the alleged offender is a national of the United States.”

This is worth closer attention because of the context in which Yoo wrote the March 2003 memo.

The SASC report on torture provides details of how Alberto Mora first learned of the torture used on Mohammed al-Qhatani at Gitmo, and used a variety of means to get Jim Haynes and Rummy to withdraw the December 2, 2002 approval for those torture methods. In an attempt to mollify and end-run torture opponents within DOD, Haynes had John Yoo (and, we now know, Jennifer Koester) adapt and expand the Bybee Memo as advice to DOD so as to limit the legal limits those in DOD could impose.

But the OPR Report provides two previously unknown details. First, it reveals that Jack Goldsmith had reason to believe that Yoo had provided Jim Haynes oral advice leading up to the time Haynes and Rummy signed the Gitmo memo.

In a June 10, 2004 memorandum to the file, then AAG Goldsmith reported talking to John Yoo about oral advice that Yoo may have provided to DOD General Counsel Haynes’in November and December 2002. Yoo told Goldsmith that he dimly recalled discussions with Haynes about specific interrogation techniques to be used on a military detainee at that time, but that any advice, he gave was “extremely tentative” and that “he never gave Mr. Haynes any advice that went beyond what was contained” in the August 2002 opinions.


[describing their conversation] Goldsmith also asked Yoo about some oral advice he had provided to Haynes in connection with DOD’s December 2, 2002 decision to use EITs on a detainee at the Guantanamo Bay facility. Yoo reportedly told Goldsmith that he did not mow the identity of the detainee (who was probably Mohammed Al-Khatani), but that he dimly recalled discussing specific techniques with Haynes in November and December 2002. Yoo stated that any advice he gave Haynes was “extremely informal,” and was clearly “extremely tentative.” According to Yoo, he “never gave Mr. Haynes any advice that went beyond what was contained” in the August 2002 opinions.

The report also revealed that Yoo had tasked Koester to write a letter retroactively authorizing Qahtani’s torture.

One of the military detainees who was reportedly subjected to aggressive techniques over the objections of the FBI was Mohammed Al-Khatani (“Al-Qahtani” in the DOJ OIG Report). According to [Koester] sometime in 2003, John Yoo told her to draft a letter to the Defense Department legality of the, techniques that had been used in Al-Khatani’s interrogation. In a May 30, 2003 email, written to Yoo shortly before he left the Department, [Koester] said that she “did not get a chance to draft a letter to DOD re: techniques. My thought is I can draft it when I get back and have Pat [Philbin] sign it.” [Koester] told us that she never drafted the letter because she did not receive sufficient information about the interrogation from the Defense Department.

Here’s why this is important.

DOD has always pretended that it based its approval of the Gitmo memo solely on the crappy analysis of Diane Beaver. But that appears not to be the case. Rather, it appears that Yoo was free-lancing again, potentially even endorsing legal opinions contrary to those that Bybee–who was still his boss!!–had formalized earlier that year.

It sort of makes sense, then, that Haynes would ask Yoo to codify a memo so quickly after the Gitmo memo (based partly on Yoo’s advice, it seems) was withdrawn. And it makes sense that Yoo would try to retroactively justify his earlier oral advice–though I do wonder, given the way Yoo and Koester free-lanced together in early 2003 on CIA’s “Legal Principles,” whether this letter would have been another document written by OLC lawyers, but not by OLC.

It’s telling, though, that one thing Yoo would do with his March 2003 memo was to claim DOD was exempt from the torture statute even when OLC had ruled, just one year before, that it was not.

Now, there’s one thing these new details go some way to explain: why Susan Craford announced DOD would not try al-Qahtani in a military commission because he had been tortured. Crawford made that announcement just weeks after the OPR Report was first drafted.

But there are two questions this raises. First, we know that Koester went directly from not writing the letter retroactively authorizing torture to DOD to work with Jim Haynes (the OPR Report refers to her being there as of May 2003–so presumably she would have written the letter, referred to above, while working at DOD and then simply forwarded it to Philbin to rubber stamp it as OLC product). Then, there is the mention that DOD simply withdrew its request for a memo authorizing its torture program.

On July 14, 2004, then Associate Deputy AG Patrick Philbin testified before the House Permanent Select Committee on Intelligence as to the legality of the 24 interrogation methods that had been approved for use by the Defense Departrri.ent. Sometime thereafter, the Defense Department reportedly informed OLC that it no longer needed a replacement for the Yoo Memo.

All of which raises the question of what authority DOD was working with after Goldsmith withdrew the Yoo memo (particularly given reports of Bush EOs authorizing military torture)?

Something funky happened after DOD realized it had tortured al-Qahtani without adequate legal protection. But it’s not clear what happened.

Updated for (I hope) more clarity.

Updated with reference to Philbin testimony and withdrawal of request for memo.