ACLU learns of third 'secret' torture memo from Gonzales Justice Department

Raw Story - Nov 6, 2007

Legal papers filed in federal court Monday in a lawsuit brought by the American Civil Liberties Union and other organizations disclose that the Justice Department's Office of Legal Counsel (OLC) issued three secret memorandums relating to interrogation practices of detainees -- one more than has been publicly revealed.

The New York Times revealed two memoranda authored in 2005 relating to "harsh interrogation" of prisoners held by the CIA. One explicitly authorized interrogators to use combinations of psychological “enhanced” interrogation practices including waterboarding, head slapping, and stress positions. The second declared that none of the CIA’s interrogation methods violated a law being considered by Congress that outlawed “cruel, inhuman and degrading” treatment.

More details in a press release sent by the ACLU Tuesday afternoon follow.

Until now, the existence of only two of those memos had been reported and it was not known precisely when the memos had been written. The memos are believed to have authorized the CIA to use extremely harsh interrogation methods including waterboarding.

“These torture memos should never have been written, and it is utterly unacceptable that the administration continues to suppress them while at the same time declaring publicly that it abhors torture,” said Jameel Jaffer, Director of the ACLU’s National Security Project. “It is now obvious that senior administration officials worked in concert over a period of several years to evade and violate the laws that prohibit cruelty and torture. Some degree of accountability is long overdue.”

The memos should have been – but were not – identified and processed for the ACLU as part of its Freedom of Information Act (FOIA) lawsuit requesting information on the treatment and interrogation of detainees in U.S. custody. In response to legal papers filed by the ACLU on October 24 objecting to that omission and requesting the release of the two memos, the government filed papers Monday stating:

“OLC has reviewed its opinions from that time frame and has determined that there were in fact three opinions issued to CIA relating to the interrogation of detainees in CIA custody … Two of the opinions were issued on May 10, 2005 … The third was issued on May 30, 2005 ... OLC has not located any legal opinions issued to CIA from January 31, 2005 through May 9, 2005 that relate to the interrogation of detainees in CIA custody.” (emphasis added)

In addition to neglecting to provide the relevant memos to the ACLU as part of its FOIA lawsuit, the government has also withheld the documents from key senators in a congressional inquiry.

“The Justice Department’s failure to identify and disclose these memos is yet another example of its efforts to thwart public inquiry into its authorization of illegal interrogation methods,” said Amrit Singh, a staff attorney with the ACLU’s Immigrants’ Rights Project. “The memos must immediately be disclosed, and high ranking officials must be held accountable for authorizing torture.”

The OLC memos – and the possibility of others that might remain unknown – take on particular meaning as the confirmation process continues today in Congress regarding the nomination of Michael Mukasey for attorney general. Mukasey has been the subject of intense criticism over his refusal to identify waterboarding as torture.

A hearing regarding the ACLU’s request for the release of OLC torture memos is scheduled for November 13, 2007 at 4 p.m. Eastern Standard Time in federal court in New York.

A copy of the ACLU’s brief requesting production of outstanding documents is online at: www.aclu.org/safefree/torture/32572lgl20071024.html

The government’s response to the ACLU’s brief is online at: www.aclu.org/safefree/torture/32573lgl20071105.html

More information on the torture and abuse of detainees in U.S. military custody and an index of documents received by the ACLU in its FOIA lawsuit can be found online at: www.aclu.org/torturefoia.

Many of these documents are also contained and summarized in a recently published book by Jaffer and Singh, Administration of Torture. More information is available online at: www.aclu.org/administrationoftorture.

Did Gonzales Lie to the Senate?

In a word - YES!

New testimony from FBI Director Robert Mueller suggests that the attorney general did not tell Congress the truth about warrantless wiretapping.

by Brian Beutler, The Media Consortium - July 27 , 2007

At a House hearing Thursday, Federal Bureau of Investigation Director Robert Mueller provided information that added to a growing body of evidence that Attorney General Alberto Gonzales may have perjured himself before the Senate Judiciary Committee.

Mueller appeared before the House Judiciary Committee to answer questions about the FBI's role in a number of controversial issues, including its use of National Security Letters. During questioning by committee Democrats, Mueller provided revealing testimony about the National Security Agency's Terrorist Surveillance Program, which is at the center of the renewed scrutiny of Gonzales' recent congressional testimony.

The disclosures began about an hour into the hearing, when Rep. Mel Watt (D-NC) asked Mueller about his reported discomfort with the NSA's domestic eavesdropping program. "Can you confirm that you had some serious reservations about the warrantless wiretapping program?" he asked. Mueller replied tersely, "Yes."

Two days earlier, Alberto Gonzales had repeatedly insisted to the Senate Judiciary Committee that there had been no conflict within the Justice Department about the NSA program and that all disagreements had been over another, unidentified intelligence program. At one point, Gonzales expressed surprise that Sen. Russ Feingold (D-WI), who also sits on the Senate Intelligence Committee and receives briefings about programs such as the TSP, would call his account into question.

Mueller was not present at the now-famous March 10, 2004 hospital room meeting between then-Bush legal aide Gonzales, Chief of Staff Andrew Card, acting Attorney General James B. Comey, and then-Attorney General John Ashcroft, who was recovering from surgery at the time. But, according to Mueller's testimony, he "arrived at the hospital after Mr. Gonzales and Mr. Card had left" and spoke briefly with the ailing Ashcroft about the his late-night dispute with the White House aides. Rep. Shiela Jackson-Lee (D-TX) asked Mueller, "Did you have an understanding that the conversation [between Ashcroft, Gonzales, and Card] was on TSP?"

"I had an understanding that the discussion was on the NSA program, yes," he replied, later adding that the program in question was "a national NSA program that has been much discussed."

The revelations continued as Democrats were recognized by Chairman John Conyers (D-MI) to question Mueller. In an exchange with Rep. Steven Cohen (D-TN) about the bedside confrontation, Mueller said that due to conversations with Comey at the time, "I had understood the Department of Justice had some concerns about an NSA program." Since the FBI uses information provided by the NSA, he explained, "My concern was to assure that whatever activity we undertook as a result of the info we received was done appropriately and legally. At some point in time [Comey] expressed some concern about the legality of it."

Mueller also revealed that he had taken notes of his conversations with Comey and Ashcroft. If made public, these documents could further damage Attorney General Gonzales' version of events. Rep. Arthur Davis (D-AL) asked Mueller why he had taken notes of his meeting with Ashcroft.

"It was out of the ordinary," Mueller replied.

"What was out of the ordinary Mr. Mueller?" Davis asked.

"Being asked to go to the hospital and be present at that time."

When Davis asked if there were any reasons why he might mot submit his notes from the conversation with Ashcroft to the committee, Mueller answered, "Deliberative privilege." Davis said that he "would certainly ask this committee and our colleagues in the Senate to make a formal inquiry to obtain those notes."

Shortly after the hearing, Rep. Conyers officially requested that Mueller delivered his notes to the committee by August 1.

Mueller spent much of his time before the committee testifying about other longstanding controversies, including the FBI's use of National Security Letters, administrative subpoenas that contain a gag order that forbids the recipient from divulging their existence. The agency has been criticized recently for its excessive use of these subpoenas without probable cause.

Rep. Conyers also questioned Mueller about the FBI's treatment of members of Michigan's sizeable Muslim community.

In both cases, Mueller defended the FBI in general terms, though he admitted instances of wrongdoing. He also agreed to meet with members of the committee individually to discuss these issues further. Mueller's appearance before the House Judiciary Committee, which has oversight of the FBI, marked his first appearance before the committee in his more than six years as the head of the agency.

Brian Beutler is the Washington correspondent for the Media Consortium, a network of progressive media organizations, including Mother Jones.