As we learned in an SJC hearing last summer (where this exchange took place), in addition to giving Jay Bybee and John Yoo two opportunities to respond to the OPR report, DOJ also let CIA review the report. That’s why I was so interested to see details of a John Rizzo letter (dated October 5, 2009) cited heavily in the second Yoo and Bybee responses.

In this post, I will reconstruct the letter, to the extent possible, to show what John Rizzo has to say for himself. I laid out the raw mentions of Rizzo’s letter in this working thread. Here, I just put those raw mentions in the paragraph order in which they appear in Rizzo’s letter.

[Paragraph 1] “CIA did not ask OLC to provide an exhaustive memorandum that thoroughly discussed all possible counter arguments,” but rather sought “OLC’s best judgment about the correct answer to a difficult question of law.” Rizzo was “aware that the issues were uncertain and that there were no controlling precedents.”  “When [Rizzo] asked for OLC’s views, [his] overriding objective was to secure a definitive opinion on an expedited basis.”

[Paragraph 2] Rizzo “had substantial personal involvement in the process.” The “OLC lawyers worked diligently on the issues, raised questions, sought out relevant factual information, and solicited input from a number of Executive Branch lawyers.” OLC “did not simply ‘rubber stamp’ everything the CIA was considering.” [almost certainly with a reference to mock burial]

[Paragraph 3] “All of the Executive Branch lawyers involved in reviewing the issues were satisfied that the memos reasonably concluded that the techniques at issue would not constitute torture.” Rizzo confirmed that Bellinger “did not express reservations about the conclusions set forth in the memos” and “was firmly on board with OLC’s assessment that the techniques at issue did not meet the restrictive definition of torture set forth in the statute.” Rizzo was “principally concerned with the conclusions in the Classified Bybee Memo”

[Paragraph 4] Rizzo believes that ”the memos adequately informed [him] about the relevant risks and provided [him] with the information that [he] needed to advise the CIA.” The Levin Memo “did not fundamentally alter” his “understanding of the” ”application of the statute to the enhanced interrogation techniques” and “did not change the answer” to the question of legality.

[Paragraph 5] Once Rizzo was “advised that the Criminal Division would not issue an advance declination of prosecution, [he] did not pursue the issue any further.” Rizzo confirmed that he never interpreted the Bybee Memo to immunize interrogators so long as they had a motive to obtain information, did not cause organ failure, acted pursuant to the Commander-in-Chief power, or asserted a common law defense. “[I] did not interpret the 2002 Bybee Memos to mean … that the interrogators would be immune from prosecution if they cross the careful lines drawn in the [Classified Bybee Memo].” Rizzo “interpreted the Commander-in-Chief section to refer to interrogations personally ordered by the President but [he] did not view it as a form of ‘immunity”.” In advising the CIA, Rizzo “relied on the analysis and limitations set forth in the [C]lassified Bybee Memo because it specifically addressed the application of the statute to the proposed conduct”

[Paragraph 6] Rizzo concluded that he was “satisfied” that Judge Bybee “met the standard of care.”

Something that doesn’t appear to be in Rizzo’s letter, though appears in the Report (though it is redacted–Bybee quotes it from the report in his response) is Rizzo’s claim that he didn’t think he had to go back and get each new torture program approved.

Rizzo’s recollection that neither Bellinger nor Yoo expected him to brief OLC “on every new variation or technique that comes up,” Report at 233,

Rizzo’s letter is nothing radical: it’s John Rizzo writing a letter that Yoo and Bybee could use to buttress their claim that “their client” (I’ll come back to this in a later post) knew how to use the memos. Rizzo claimed that he stopped asking for an advance declination after he was told no, that he did not view the Bybee One memo as a Get Out of Jail Free card, and that he focused primarily on the Bybee Two memo laying out specific techniques. If you ignore the statement Rizzo apparently made directly to OPR–that he felt free to approve torture that varied from the descriptions included in the Bybee Two memo–then it goes some way to rebut all the evidence that Yoo and Bybee oversaw the writing of a Get Out of Jail Free card.

But in addition to that conflict, this letter crystallizes another question I’ve got about the CIA’s involvement.

The OPR report says that CIA wanted an advance declination from the very first discussions of the Bybee Memos–so as early as April 11, 2002. The report even suggests (though Rizzo denies it) that Rizzo brought a draft advance declination to a meeting in that timeframe. Chertoff refused the advance declination in a meeting on July 13 and after that directed Yoo to write CIA a letter informing them of that refusal (Yoo drafted it a few days later but never sent it). On July 16, Addington appears to have instructed Yoo to include the Commander in Chief and affirmative defense sections to accomplish the same purpose. On July 24, Yoo gave Rizzo oral approval to use attention grasp, walling, facial hold, cramped confinement, and wall standing. It wasn’t until July 26, when OLC was giving oral approval for waterboarding (but not, because it would take too much time, mock burial) that CIA first asked for written approval for specific torture techniques.

Particularly given Rizzo’s claim that he was primarily interested in the Bybee Two memo, purportedly a document placing strict limits on torture, even though Rizzo admitted to OPR that he felt free to free-lance from there, why did CIA wait until almost two after weeks Chertoff refused to give CIA an advance declination until they even asked for the Bybee Two memo?

In other words, John Rizzo writes a nice fairy tale in his letter for Yoo and Bybee. But his story appears not to correlate with his actions on the memos at all.