The investigation was formally launched after an article published here by this reporter last week revealed that the author of the August 2002 legal opinion, John Yoo, a former attorney in the Department of Justice's Office of Legal Counsel (OLC), relied on a health benefits statute to form the legal basis for waterboarding and other "enhanced" interrogation techniques, an OPR official at OPR said in an interview this afternoon. The official requested anonymity because he said he was not permitted to discuss the probe.
"Did Justice Department officials who advised the CIA that waterboarding is lawful perform legal work that meets applicable standards of professional responsibility and internal Justice Department policies and standards? For example, did these officials consider all relevant legal precedents, including those that appear to contradict directly their conclusion that waterboarding is lawful?" stated Durbin's Feb. 12 letter to DOJ Inspector General Glen Fine.
The probe will center on Yoo's use of the health benefits statute in defining torture and how the statue became the basis for authorizing enhanced interrogation methods and whether that "violated the standards of professional conduct," the OPR official said.
Yoo's legal opinion stated that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" then the interrogation technique could not be defined as torture.
Jack Goldsmith, the former head of OLC said that Yoo, a former OLC attorney who now teaches at the University of California at Berkeley, arrived at that definition by relying on statute written in 2000 related to health benefits.
"That statute defined an ‘emergency medical condition’ that warranted certain health benefits as a condition ‘manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function," Goldsmith wrote in his book, The Terror Presidency.
"The health benefits statute's use of ‘severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define ‘severe pain.’ Rather it used the term ‘severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like.... OLC’s clumsily definitional arbitrage didn't seem even in the ballpark."
According to Yoo's legal opinion, waterboarding, a brutal and painful technique in which a prisoner believes he is drowning, was not considered to be torture because it did not result in "death, organ failure, or impairment of bodily function."
In a letter sent to Durbin Monday, H. Marshall Jarrett, the head of OPR, said counsel for the Office of Professional Responsibility, wrote in a letter to Democratic lawmakers that his office intends to question Yoo, and his former boss, Jay Bybee, the former head of OLC, now a federal appeals court judge in San Francisco.
"Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys," Jarrett's letter says, adding that his office may release the findings of the investigation publicly.
Goldsmith, who was tapped to head the OLC in October 2003, determined after eight weeks as head of OLC that Yoo's "torture memo" was "legally flawed," sloppily written, and called into question whether the White House was provided with sound legal advice.
Goldsmith claims that after reviewing various arguments and opinions in Yoo's August 2002 "torture memo," particularly "any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution's sole vesting of the Commander-in-Chief authority in the president, has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law."
"On an issue that demanded the greatest of care, OLC's analysis of the law of torture in the Aug. 1, 2002, opinion and the March 2003 opinion was legally flawed, tendentious in substance and tone, and overbroad and thus largely unnecessary," Goldsmith wrote in his book.
Yoo's legal opinions virtually gave President Bush unilateral authority to launch preemptive military strikes against any regime suspected of having ties to terrorist groups, provided Bush with the power to begin a covert domestic surveillance program, and authorized the president to allow CIA agents to interrogate alleged terrorist detainees using brutal methods of interrogation as long as it didn't result in death or maiming of the prisoner.
Eight weeks after he settled into his new job Goldsmith said, according to his book, he worried "about the possibility of excessive interrogation" being undertaken by CIA agents after reviewing some of the legal documents written by his predecessors.
Patrick Philbin, at the time a deputy at the OLC who had provided the White House with legal advice following Yoo's departure from the office, advised Goldsmith soon after he arrived at OLC that he was working to correct one such OLC opinion written by Yoo that he believed was "out there."
The legal opinion that so worried Philbin was Yoo's "Standards of Conduct for Interrogation," which has been widely referred to as the "Torture Memo."
Another opinion written by Yoo on March 14, 2003, for Jim Haynes, Goldsmith's former boss at the Pentagon under the heading "Military Interrogation of Alien Unlawful Combatants Held Outside the United States," provided the Department of Defense, specifically former Secretary of Defense Donald Rumsfeld, with authority to use the same interrogation techniques against high-level prisoners held at Guantanamo Bay and other facilities maintained under the DOD's control. That opinion remains classified.
According to Goldsmith, "the primary legal issue in both opinions was the effect of a 1994 law that implemented a global treaty banning torture and that made it a crime, potentially punishable by death, to commit torture."
"Congress defined the prohibition on torture very narrowly to ban only the most extreme of acts and to preserve many loopholes," Goldsmith wrote in his book.
It did not criminalize cruel, inhuman, and degrading treatment (something prohibited by international law) and did not even criminalize all acts of physical or mental pain or suffering, but rather only those acts "specifically intended" to cause "severe" physical pain or suffering or "prolonged mental harm."
Both of Yoo's opinions concluded that the laws governing torture violated President Bush's Commander-in-Chief powers under the Constitution because it prevented him "from gaining the intelligence he believes necessary to prevent attacks upon the United States."
Goldsmith said that even though, "ironically," Yoo relied on a health benefits statute to write his legal opinion, these and "other questionable statutory interpretations, taken alone, were not enough to cause me to withdraw and replace the interrogation opinions."
"OLC has a powerful tradition of adhering to its past opinions, even when a head of the office concludes they are wrong," he wrote in his book.
Still, Goldsmith "decided in December 2003 that opinions written nine and sixteen months earlier by my Bush administration predecessors must be withdrawn, corrected, and replaced," Goldsmith wrote in his book.
"I reached this decision, and had begun to act on it, before I knew anything about interrogation abuses. I did so because the opinions' errors of statutory interpretation combined with many other elements to make them unusually worrisome."
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This story was published on February 23, 2008.