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Context of 'August 4, 1964: Disputed Gulf of Tonkin Incident Allegedly Occurs'

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In 2001, documents detailing a US military plan called Operation Northwoods will be declassified (see April 24, 2001). The plan suggests conducting terrorist attacks in the US and blame them on Castro’s government in order to create public support for a war against Cuba. The documents are dated March 9, 1962 and are written by the Department of Defense and the Joint Chiefs of Staff Representative on the Caribbean Survey Group for the Joint Chiefs of Staff. The papers suggest several possible events that the US could fabricate, including the sinking of boats of Cuban refugees, hijacking planes, blowing up a US ship, and even orchestrating violent terrorism in US cities. One of the document’s authors notes, “casualty lists in US newspapers would cause a helpful wave of national indignation.” [US Department of Defense, 3/13/1962 pdf file; ABC News, 5/1/2001; Bamford, 2002]

Timeline Tags: Alleged Use of False Flag Attacks, US-Cuba (1959-2005)

South Vietnamese gun boats attack the North Vietnamese island of Hon Me as part of operation OPLAN 34A. Daniel Ellsberg, a Pentagon official working under US Secretary of Defense Robert McNamara, will later describe 34A as a “100 percent US operations, utilizing some South Vietnamese personnel along with… foreign mercenary crews, totally planned and controlled by the US, through MACV [Military Assistance Command Vietnam], CIA and CINCPAC [Commander in Chief, Pacific Fleet]; some people in the GVN [Government of (South) Vietnam] had very limited knowledge of the operations, but no hand in planning or managing them.” [Ellsberg, 2003 Sources: Daniel Ellsberg]

Entity Tags: Daniel Ellsberg

Timeline Tags: US-Vietnam (1947-2001)

The USS Maddox is gathering intelligence off the coast of North Vietnam. [Pilger, 1986, pp. 148; Herring, 1986, pp. 119; Media Beat, 7/27/1994] When a group of North Vietnamese torpedo boats come within range of the vessel there is a brief, but tense, exchange of fire. The USS Maddox fires on the boats, which respond with torpedoes. The torpedo boats are quickly driven away when aircraft from the USS Ticonderoga come to the assistance of the Maddox. The US government and the press will report that the torpedo boats had launched an “unprovoked attack” against the Maddox while it was on a “routine patrol.” [Herring, 1986, pp. 119; Media Beat, 7/27/1994] When reports of the incident are received in Washington, the Maddox is ordered to continue is operations close to North Vietnamese shores. Another destroyer, the C. Turner Joy, is sent to support it. [Herring, 1986, pp. 120]

Timeline Tags: US-Vietnam (1947-2001)

Two days after an engagement with North Vietnamese torpedo boats (see August 2, 1964), Captain John J. Herrick of the USS Maddox sees two “mysterious dots” on his radar screen. He determines they are torpedo boats and sends an emergency cable to headquarters in Honolulu reporting that the ship is under attack. Honolulu quickly passes the report on to Washington. [Pilger, 1986, pp. 195] President Johnson meets with his advisers and decides that the US must respond. “We cannot sit still as a nation and let them attack us on the high seas and get away with it,” Secretary of Defense Robert McNamara says. [Herring, 1986, pp. 121] A few hours later, a cable arrives from Captain Herrick, which reads: “Freak weather effects on radar and over eager sonar men . . . No actual visual sightings by Maddox. Suggest complete evaluation before any further action taken.” A little later, Herrick cables that though it was “a confusing picture,” he did believe that there had been an attack. [In 1985, Herrick will reveal that this judgment had been based on “intercepted North Vietnamese communications” which he had not seen.] Half an hour later, the White House receives a third cable from Herrick, in which the captain says he is now uncertain what had happened. But this last report is ignored and President Johnson announces in a televised address, “Renewed hostile actions against United States ships on the high seas have today required me to order the military forces of the United States to take action in reply.” Meanwhile, US forces in Vietnam launch “retaliatory” air strikes against five North Vietnamese patrol boats and the oil facilities at Vinh. [Pilger, 1986, pp. 196; Herring, 1986, pp. 121; Ellsberg, 2003] The American media praises the president’s speech and actions. The New York Times states the following day that Johnson had gone to “the American people… with the somber facts.” And the Los Angeles Times urges its readers to “face the fact that the Communists, by their attack on American vessels in international waters, have themselves escalated the hostilities.” But time will reveal that there had been no attacks. US Navy squadron commander James Stockdale, who had been in the air at the time of the alleged attacks, will later recall: “I had the best seat in the house to watch that event and our destroyers were just shooting at phantom targets—there were no PT boats there… There was nothing there but black water and American fire power.” [Media Beat, 7/27/1994]

Entity Tags: James Stockdale, John J. Herrick, Robert McNamara

Timeline Tags: US-Vietnam (1947-2001)

The Senate Foreign Relations Committee and the House Foreign Relations Committee hold closed hearings on the Gulf of Tonkin torpedo attacks (see August 2, 1964) (see August 4, 1964). Senator Wayne Morse of Oregon, who had received a tip from an unnamed Pentagon insider (not Daniel Ellsberg), asks US Defense Secretary Robert McNamara if the torpedo attacks might have been a response to operation OPLAN 34A which had conducted attacks on the North Vietnamese island of Hon Me on July 31 (see July 31, 1964). The Senator raises the possibility that the North Vietnamese may have thought the ship was supporting OPLAN 34A’s attacks. Morse suggests that McNamara should inquire as to the exact location of the Maddox on those days and what its true mission was. McNamara responds: “First, our Navy played absolutely no part in, was not associated with, was not aware of, any South Vietnamese actions, if there were any…. The Maddox was operating in international waters, was carrying out a routine patrol of the type we carry out all over the world at all times. I did not have knowledge at the time of the attack on the island. There is no connection between this patrol and any action of South Vietnam.” [New York Times, 6/13/1971; Herring, 1986, pp. 122; Ellsberg, 2003]

Entity Tags: Wayne Morse, Robert McNamara, US Congress

Timeline Tags: US-Vietnam (1947-2001)

In response to alleged “unprovoked” attacks by North Vietnamese torpedo boats against the USS Maddox on August 2 (see August 2, 1964) and August 4 (see August 4, 1964), Congress passes the Gulf of Tonkin Resolution, authorizing President Johnson to take “all necessary measures to repel any armed attacks against the forces of the United States and to prevent further aggression.” [US Congress, 8/7/1964; Herring, 1986, pp. 122-123] It sails though the House unanimously and in the Senate it meets only the slightest resistance with two dissenting votes. [Herring, 1986, pp. 122-123] When Daniel Ellsberg leaks the Pentagon Papers seven years later, it is revealed that the resolution had been drafted 2 months earlier, well before the alleged incident. [Pilger, 1986, pp. 196]

Entity Tags: Daniel Ellsberg, US Congress

Timeline Tags: US-Vietnam (1947-2001)

One day after the alleged “unprovoked” attacks on the USS Maddox by North Vietnamese torpedo boats (see August 2, 1964), the vessel’s captain, John J. Herrick, reports to Washington: “Evaluation of info from various sources indicates DRV considers [my] patrol directly involved with 34-A ops (see July 31, 1964) DRV considers US ships present as enemies because of these ops and have already indicated their readiness to treat us in that category.” [Ellsberg, 2003]

Entity Tags: John J. Herrick

Timeline Tags: US-Vietnam (1947-2001)

Henry ‘Scoop’ Jackson.Henry ‘Scoop’ Jackson. [Source: US Congress]The recently formed neoconservatives, bound together by magazine publisher Irving Kristol (see 1965), react with horror to the ascendancy of the “McGovern liberals” in the Democratic Party, and turn to conservative senator Henry “Scoop” Jackson (D-WA) for leadership. Jackson calls himself a “muscular Democrat”; others call him “the Senator from Boeing” for his strong support of the US defense industry. Jackson merges a strong support of labor and civil rights groups with a harsh Cold War opposition to the Soviet Union. Jackson assembles a staff of bright, young, ideologically homogeneous staffers who will later become some of the most influential and powerful neoconservatives of their generation, including Richard Perle, Douglas Feith, Elliott Abrams, Abram Shulsky, and Paul Wolfowitz. Jackson’s office—“the bunker,” to staffers—becomes a home for disaffected, ambitious young conservative ideologues with a missionary zeal for change. Jackson presides over the cadre in an almost fatherly fashion.
History of Two Dictators - Many of Jackson’s neoconservative disciples came of age either fighting two foreign dictators—Stalin and/or Hitler—or growing up with family members who fought against them. [Unger, 2007, pp. 35-41] Wolfowitz’s father’s family perished in the Holocaust; he will later say that what happened to European Jews during World War II “shaped a lot of my views.” [New York Times, 4/22/2002] Feith will tell the New Yorker in 2005, “[My] family got wiped out by Hitler, and… all this stuff about working things out—well, talking to Hitler to resolve the problem didn’t make any sense.” Most neoconservatives like Feith and Wolfowitz tend to look to military solutions as a first, not a last, resort. To them, compromise means appeasement, just as Britain’s Neville Chamberlain tried to appease Hitler. Stefan Halper, a White House and State Department official in the Nixon, Ford, and Reagan administrations, will say of the neoconservatives, “It is use force first and diplomacy down the line.”
Former Trotskyites - On the other hand, many neoconservatives come to the movement from the hardline, socialist left, often from organizations that supported Bolshevik revolutionary Leon Trotsky (see Late 1930s - 1950s). Trotskyites accused Stalin of betraying the purity of the Communist vision as declaimed by Karl Marx and Vladimir Lenin. “I can see psychologically why it would not be difficult for them to become [conservative] hard-liners,” says Harvard Sovietologist Richard Pipes, himself a hardliner whose son, Daniel Pipes, will become an influential neoconservative. “It was in reaction to the betrayal.” Many neoconservatives like Stephen Schwartz, a writer for the Weekly Standard, still consider themselves to be loyal disciples of Trotsky. Richard Perle is a Trotskyite socialist when he joins Jackson’s staff, and will always practice what author Craig Unger calls “an insistent, uncompromising, hard-line Bolshevik style” of policy and politics. Like Trotsky, Unger writes, the neoconservatives pride themselves on being skilled bureaucratic infighters, and on trusting no one except a small cadre of like-minded believers. Disagreement is betrayal, and political struggles are always a matter of life and death. [Unger, 2007, pp. 35-41]

Entity Tags: Stefan Halper, Stephen Schwartz, Richard Pipes, Richard Perle, Neville Chamberlain, Abram Shulsky, Douglas Feith, Daniel Pipes, Craig Unger, Paul Wolfowitz, Henry (“Scoop”) Jackson, Elliott Abrams, Leon Trotsky, Irving Kristol

Timeline Tags: Neoconservative Influence

Conservative Democratic senator Henry “Scoop” Jackson (D-WA) meets with President Ford as part of a discussion about the standoff with the Soviet Union over trade and emigration of Soviet Jews to Israel. Jackson—hawkish, defense-minded, and solidly pro-Israel—sees the standoff as an opportunity to undercut Secretary of State Henry Kissinger. Jackson is a forerunner of what in later years will be called “neoconservatism” (see 1965), an ideology mostly espoused by a group of Democratic lawmakers and intellectuals who have abandoned their support for Rooseveltian New Deal economics and multilateralist foreign policies (see Early 1970s). Jackson and his outspoken pro-Israel aide, Richard Perle, view Kissinger as far too conciliatory and willing to negotiate with the Communist bloc. Jackson and Perle see the Soviet Union, not the Israeli-Palestine conflict, as the chief threat to US interests in the Middle East and the control of that region’s oil fields. They see a strong, powerful Israel as essential to their plans for US domination of the region. Jackson resists a proposed compromise on the number of Soviet Jews the USSR will allow to emigrate to Israel—the Soviets offer 55,000 and Jackson insists on 75,000—and many in the meeting feel that Jackson is being deliberately recalcitrant. “It made mo sense to me because it was sure to be counterproductive,” Ford later writes, “but he would not bend, and the only reason is politics.” For his part, Kissinger respects Jackson’s political abilities, but to his mind, Perle is a “ruthless… little b_stard.” Kissinger knows that Republican hawks as well as the burgeoning neoconservative movement will pressure Ford to abandon Richard Nixon’s policies of moderating relations with the Soviet Union and Communist China. But, author Barry Werth writes in 2006: “what Kissinger and now Ford would chronically underestimate was the neoconservatives’ argument that the United States should not so much seek to coexist with the Soviet system as to overthrow it through direct confrontation. Or the extent to which the neoconservatives would go to exaggerate a foreign threat and stir up fear.” [Werth, 2006, pp. 77-79]

Entity Tags: Gerald Rudolph Ford, Jr, Richard M. Nixon, Barry Werth, Richard Perle, Henry (“Scoop”) Jackson, Henry A. Kissinger

Timeline Tags: US International Relations, Neoconservative Influence

Ford and Brezhnev in Vladivostok, 1974.Ford and Brezhnev in Vladivostok, 1974. [Source: Public domain]President Gerald Ford meets with Soviet Premier Leonid Brezhnev in Vladivostok. Ford, attempting to restart the moribund SALT II (Strategic Arms Limitations Talks) negotiations, finds Brezhnev willing to deal. The Soviet Union offers to sign off on one of two options: equal ceilings (allowing each side the same number of long- and short-range ballistic missiles and heavy bombers), or what he calls “offsetting asymmetries,” which would allow the US to have more MIRV—Multiple Independently Targetable Reentry Vehicle—missiles while the Soviets have more launch vehicles. Most American experts believe the “offsetting asymmetries” option is better for the US—leaving the USSR with measurably fewer MIRV launchers, warheads, and payload capacity, or “throw weight.” However, Ford, knowing he will have to get the deal past neoconservative Senator Henry “Scoop” Jackson (D-WA—see Early 1970s) and his call for numerical equality, reaches an agreement with Brezhnev that both the US and USSR will be allowed 2,400 long-range delivery systems, of which 1,320 will be MIRVs. Author J. Peter Scoblic calls the deal “yet another instance of right-wing opposition to arms control undermining not only nuclear stability but the stated goals of conservatives—in this case, a US advantage in MIRVs.” When Ford returns to Washington with the deal, hardline right-wingers will fiercely oppose the deal on the grounds that the numerical equality in launch vehicles gives the USSR an untenable advantage. “[T]he agreement recognizes and in effect freezes Soviet superiority in nuclear firepower,” says New York Senator James Buckley, the only member of the Conservative Party ever to hold a Senate seat. Governor Ronald Reagan, a voluble opponent of any arms-control deals, says, incorrectly, that the Vladivostok agreement gives the Soviet Union the opportunity to have a “ten-to-one” advantage in throw weight. Though the Vladivostok agreement becomes part of the overall SALT II negotiations (see June 18, 1979-Winter 1979), conservatives among both parties will stiffen their opposition to the deal. [Scoblic, 2008, pp. 78-79]

Entity Tags: James Buckley, Ronald Reagan, Gerald Rudolph Ford, Jr, Henry (“Scoop”) Jackson, J. Peter Scoblic, Leonid Brezhnev

Timeline Tags: US International Relations

CPD logo.CPD logo. [Source: Committee on the Present Danger]A group of hardline Cold Warriors and neoconservatives revive the once-influential Committee on the Present Danger (CPD) in order to promote their anti-Soviet, pro-military agenda. The CPD is an outgrowth of the Coalition for a Democratic Majority (CDM), itself a loose amalgamation of neoconservatives and Democratic hawks.
Confederation of Establishment Conservatives, Neoconservatives, and Hawkish Democrats - The CPD is led by Eugene Rostow, the head of the CDM’s foreign policy task force. Others include CIA spymaster William Casey; iconic Cold War figure and “Team B” member Paul Nitze (see January 1976 and Late November, 1976); established neoconservatives such as Norman Podhoretz and Team B leader Richard Pipes (see Early 1976); rising neoconservative stars like Jeane Kirkpatrick, Midge Decter, Donald Brennan, and Richard Perle; conservative Democrats such as Nitze and former Secretary of State Dean Rusk; established Republicans such as House representative Claire Booth Luce (R-CT), David Packard, Nixon’s deputy secretary of defense, Andrew Goodpaster, Eisenhower’s National Security Adviser, millionaire Richard Mellon Scaife; and famed military officers such as Admiral Elmo Zumwalt. [Unger, 2007, pp. 58-59; Scoblic, 2008, pp. 99-100]
No 'Realists' - Author Craig Unger will write: “Ultimately, in the CPD, one could see the emerging fault lines in the Republican Party, the ideological divide that separated hardline neocons and Cold Warriors from the more moderate, pragmatic realists—i.e. practitioners of realpolitik such as Henry Kissinger, Brent Scowcroft, George H. W. Bush, and James Baker. All of the latter were conspicuously absent from the CPD roll call.” [Unger, 2007, pp. 58-59]
Advocates US First Strike against USSR - Like the CDM and Team B, the CPD believes that the entire concept of detente with the Soviet Union is an abject failure, and the only way to deal with the ravenously hegemonical USSR is through armed confrontation. Like Team B (see November 1976), the CPD insists, without proof, that the USSR has made far greater strides in increasing the size and striking power of its nuclear arsenal; and like Team B, no amount of debunking using factual information stops the CPD from making its assertions (see November 1976). The US must drastically increase its stockpile of nuclear and conventional weapons, it maintains, and also be prepared to launch a nuclear first strike in order to stop the USSR from doing the same. In April 1977, the CPD evokes the familiar neoconservative specter of appeasement by writing, “The Soviet military build-up of all its armed forces over the past quarter century is, in part, reminiscent of Nazi Germany’s rearmament in the 1930s.” Author J. Peter Scoblic will observe, “The CPD saw itself as a collection of [Winston] Churchills facing a country of [Neville] Chamberlains.” In 1978, the CPD predicts, “The early 1980s threaten to be a period of Soviet strategic nuclear superiority in which America’s second-strike capability will become vulnerable to a Soviet pre-emptive attack without further improvements in US weapons.” [Unger, 2007, pp. 58-59; Scoblic, 2008, pp. 99-100]
Spreading Propaganda - According to a 2004 BBC documentary, the CPD will produce documentaries, publications, and provide guests for national talk shows and news reports, all designed to spread fear and encourage increases in defense spending, especially, as author Thom Hartmann will write, “for sophisticated weapons systems offered by the defense contractors for whom neocons would later become lobbyists.” [Common Dreams (.org), 12/7/2004; BBC, 1/14/2005]

Entity Tags: Nixon administration, Jeane Kirkpatrick, Midge Decter, Paul Nitze, Richard Pipes, Richard Perle, William Casey, Thomas Hartmann, James A. Baker, Richard Mellon Scaife, Norman Podhoretz, Henry A. Kissinger, Eugene V. Rostow, Central Intelligence Agency, Brent Scowcroft, George Herbert Walker Bush, Claire Booth Luce, Committee on the Present Danger, Coalition for a Democratic Majority, David Dean Rusk, Elmo Zumwalt, Craig Unger, Eisenhower administration, David Packard, Donald Brennan, Andrew Goodpaster

Timeline Tags: US International Relations, Neoconservative Influence

A team of young, mid-level CIA and DIA analysts, informally dubbed “Team A,” debates the neoconservative/hardline group of outside “analysts” known as “Team B” (see Early 1976) over the CIA’s estimates of Soviet military threats and intentions. The debate is a disaster for the CIA’s group. Team B uses its intellectual firepower and established reputations of members such as Richard Pipes and Paul Nitze to intimidate, overwhelm, and browbeat the younger, more inexperienced CIA analysts. “People like Nitze ate us for lunch,” recalls one member of Team A. “It was like putting Walt Whitman High versus the [NFL’s] Redskins. I watched poor GS-13s and GS-14s [middle-level analysts with modest experience and little real influence] subjected to ridicule by Pipes and Nitze. They were browbeating the poor analysts.” Howard Stoertz, the national intelligence officer who helped coordinate and guide Team A, will say in hindsight, “If I had appreciated the adversarial nature [of Team B], I would have wheeled up different guns.” Team A had prepared for a relatively congenial session of comparative analysis and lively discussion; Team B had prepared for war.
Ideology Trumps Facts - Neither Stoertz nor anyone else in the CIA appreciated how thoroughly Team B would let ideology and personalities override fact and real data. While CIA analysts are aware of how political considerations can influence the agency’s findings, the foundation of everything they do is factual—every conclusion they draw is based on whatever facts they can glean, and they are leery of extrapolating too much from a factual set. Team A is wholly unprepared for B’s assault on their reliance on facts, a line of attack the CIA analysts find incomprehensible. “In other words,” author Craig Unger will write in 2007, “facts didn’t matter.” Pipes, the leader of Team B, has argued for years that attempting to accurately assess Soviet military strength is irrelevant. Pipes says that because it is irrefutable that the USSR intends to obliterate the US, the US must immediately begin preparing for an all-out nuclear showdown, regardless of the intelligence or the diplomatic efforts of both sides. Team B is part of that preparation. [Bulletin of Atomic Scientists, 4/1993; Unger, 2007, pp. 53-57] Intelligence expert John Prados, who will examine the contesting reports, later says that while the CIA analysts believe in “an objective discoverable truth,” the Team B analysts engaged in an “exercise of reasoning from conclusions” that they justify, not in factual, but in “moral and ideological terms.” According to Prados’s analysis, Team B had no real interest in finding the truth. Instead, they employed what he calls an adversarial process similar to that used in courts of law, where two sides present their arguments and a supposedly impartial judge chooses one over the other. Team B’s intent was, in essence, to present the two opposing arguments to Washington policy makers and have them, in author J. Peter Scoblic’s words, “choose whichever truth they found most convenient.” [Scoblic, 2008, pp. 98]
Attacking the Intelligence Community - The first sentence of Team B’s report is a frontal assault on the US intelligence community. That community, the report says, had “substantially misperceived the motivations behind Soviet strategic programs, and thereby tended consistently to underestimate their intensity, scope, and implicit threat.” Team B writes that the intelligence community has failed to see—or deliberately refused to see—that the entire schema of detente and arms limitations negotiations are merely elements of the Soviet push for global domination.
Fighting and Winning a Nuclear War - Team B writes that the Soviets have already achieved measurable superiority in nuclear weaponry and other military benchmarks, and will use those advantages to cow and coerce the West into doing its bidding. The Soviets worship military power “to an extent inconceivable to the average Westerner,” the report asserts. The entire Soviet plan, the report goes on to say, hinges on its willingness to fight a nuclear war, and its absolute belief that it can win such a war. Within ten years, Team B states, “the Soviets may well expect to achieve a degree of military superiority which would permit a dramatically more aggressive pursuit of their hegemonial objectives.” [Scoblic, 2008, pp. 94-95]
Lack of Facts Merely Proof of Soviets' Success - One example that comes up during the debate is B’s assertion that the USSR has a top-secret nonacoustic antisubmarine system. While the CIA analysts struggle to point out that absolutely no evidence of this system exists, B members conclude that not only does the USSR have such a system, it has probably “deployed some operation nonacoustic systems and will deploy more in the next few years.” The absence of evidence merely proves how secretive the Soviets are, they argue. [Bulletin of Atomic Scientists, 4/1993; Unger, 2007, pp. 53-57] Anne Cahn, who will serve in the Arms Control and Disarmament Agency in the Carter administration, later says of this assertion, “They couldn’t say that the Soviets had acoustic means of picking up American submarines, because they couldn’t find it. So they said, well maybe they have a non-acoustic means of making our submarine fleet vulnerable. But there was no evidence that they had a non-acoustic system. They’re saying, ‘we can’t find evidence that they’re doing it the way that everyone thinks they’re doing it, so they must be doing it a different way. We don’t know what that different way is, but they must be doing it.‘… [The fact that the weapon doesn’t exist] doesn’t mean that it doesn’t exist. It just means that we haven’t found it yet.” Cahn will give another example: “I mean, they looked at radars out in Krasnoyarsk and said, ‘This is a laser beam weapon,’ when in fact it was nothing of the sort.… And if you go through most of Team B’s specific allegations about weapons systems, and you just examine them one by one, they were all wrong.… I don’t believe anything in Team B was really true.” [Bulletin of Atomic Scientists, 4/1993; Common Dreams (.org), 12/7/2004; BBC, 1/14/2005]
Soviet Strike Capabilities Grossly Exaggerated - Team B also hammers home warnings about how dangerous the Soviets’ Backfire bomber is. Later—too late for Team A—the Team B contentions about the Backfire’s range and refueling capability are proven to be grossly overestimated; it is later shown that the USSR has less than half the number of Backfires that B members loudly assert exist (500 in Team B’s estimation, 235 in reality). B’s assertions of how effectively the Soviets could strike at US missile silos are similarly exaggerated, and based on flawed assessment techniques long rejected by the CIA. The only hard evidence Team B produces to back their assertions is the official Soviet training manual, which claims that their air-defense system is fully integrated and functions flawlessly. The B analysts even assert, without evidence, that the Soviets have successfully tested laser and charged particle beam (CPB) weapons. [Bulletin of Atomic Scientists, 4/1993; Quarterly Journal of Speech, 5/2006 pdf file] (The facility at Semipalatansk that is supposedly testing these laser weapons for deployment is in reality a test site for nuclear-powered rocket engines.) [Scoblic, 2008, pp. 96]
Fundamental Contradiction - One befuddling conclusion of Team B concerns the Soviets’ ability to continue building new and expensive weapons. While B acknowledges “that the Soviet Union is in severe decline,” paradoxically, its members argue that the threat from the USSR is imminent and will grow ever more so because it is a wealthy country with “a large and expanding Gross National Product.”
Allegations 'Complete Fiction' - Cahn will say of Team B’s arguments, “All of it was fantasy.… [I]f you go through most of Team B’s specific allegations about weapons systems, and you just examine them one by one, they were all wrong.” The CIA lambasts Team B’s report as “complete fiction.” CIA director George H. W. Bush says that B’s approach “lends itself to manipulation for purposes other than estimative accuracy.” His successor, Admiral Stansfield Turner, will come to the same conclusion, saying, “Team B was composed of outsiders with a right-wing ideological bent. The intention was to promote competition by polarizing the teams. It failed. The CIA teams, knowing that the outsiders on B would take extreme views, tended to do the same in self-defense. When B felt frustrated over its inability to prevail, one of its members leaked much of the secret material of the proceedings to the press” (see Late November, 1976). Former CIA deputy director Ray Cline says Team B had subverted the National Intelligence Estimate on the USSR by employing “a kangaroo court of outside critics all picked from one point of view.” Secretary of State Henry Kissinger says that B’s only purpose is to subvert detente and sabotage a new arms limitation treaty between the US and the Soviet Union. [Bulletin of Atomic Scientists, 4/1993; Common Dreams (.org), 12/7/2004; BBC, 1/14/2005; Quarterly Journal of Speech, 5/2006 pdf file; Unger, 2007, pp. 53-57]
Costs of Rearmament - In 1993, after reviewing the original Team B documents, Cahn will reflect on the effect of the B exercise: “For more than a third of a century, assertions of Soviet superiority created calls for the United States to ‘rearm.’ In the 1980s, the call was heeded so thoroughly that the United States embarked on a trillion-dollar defense buildup. As a result, the country neglected its schools, cities, roads and bridges, and health care system. From the world’s greatest creditor nation, the United States became the world’s greatest debtor—in order to pay for arms to counter the threat of a nation that was collapsing.” [Bulletin of Atomic Scientists, 4/1993] Former Senator Gary Hart (D-CO) will agree: “The Pro-B Team leak and public attack on the conclusions of the NIE represent but one element in a series of leaks and other statements which have been aimed as fostering a ‘worst case’ view for the public of the Soviet threat. In turn, this view of the Soviet threat is used to justify new weapons systems.” [Quarterly Journal of Speech, 5/2006 pdf file]

Entity Tags: Howard Stoertz, Henry A. Kissinger, Stansfield Turner, Richard Pipes, J. Peter Scoblic, Ray Cline, George Herbert Walker Bush, Craig Unger, Defense Intelligence Agency, ’Team A’, Gary Hart, Anne Cahn, ’Team B’, Carter administration, Arms Control and Disarmament Agency, Paul Nitze, Central Intelligence Agency

Timeline Tags: US International Relations, Neoconservative Influence

A few days before his inauguration, President-elect Jimmy Carter says to the assembled Joint Chiefs of Staff that he can envision the US and the Soviet Union having much smaller nuclear arsenals—perhaps as low as 200 submarine-based nuclear missiles each, in essence a purely deterrent force. When the comment is leaked to conservative columnists Rowland Evans and Robert Novak, the two write in their column that the chairman of the Joint Chiefs, General George Brown, was “[s]tunned speechless” by the remark. In his inaugural address, Carter continues the theme of nuclear disarmament between the two superpowers, saying he intends to try to “limit the world’s armaments to those necessary for each nation’s domestic safety.” As for the world’s nuclear arsenals, he says, “[W]e will move this year a step towards the ultimate goal—the elimination of all nuclear weapons from this Earth.” [Scoblic, 2008, pp. 105]

Entity Tags: James Earl “Jimmy” Carter, Jr., George Brown, Rowland Evans, Joint Chiefs of Staff, Robert Novak

Timeline Tags: US International Relations

Paul Warnke, at a 1986 press conference.Paul Warnke, at a 1986 press conference. [Source: Terry Ashe/Time and Life Pictures / Getty Images]President Carter’s nomination of Paul Warnke to head the Arms Control and Disarmament Agency (ACDA) galvanizes opposition from conservatives throughout Washington.
Long Record of Opposing Arms Buildup - Warnke, a trial lawyer who began his political career as general counsel to the secretary of defense under President Johnson and established himself as an outspoken critic of the Vietnam War, has a long record of favoring negotiations with the Soviet Union over confrontation. His 1975 article in Foreign Affairs magazine, “Apes on a Treadmill,” ridiculed the conservative idea that the only way to counter the Soviet nuclear threat is to build ever more nuclear weapons, and earned the lasting enmity of those same conservatives. “We can be first off the treadmill,” he wrote. “That’s the only victory the arms race has to offer.” Carter also wants Warnke to head the administration’s negotiating team in the SALT II (Strategic Arms Limitation Talks) with the Soviets. [New York Times, 11/1/2001; Scoblic, 2008, pp. 101]
Conservative, Neoconservative Counterattack Creates Grassroots Element - The Committee on the Present Danger (CPD—see 1976) leads the opposition to Warnke’s nomination. Even before Warnke is officially nominated, neoconservatives Penn Kemble and Joshua Muravchik write and circulate an anonymous memo around Washington accusing Warnke of favoring “unilateral abandonment by the US of every weapons system which is subject to negotiation at SALT.” The memo also cites the conclusions of the Team B analysts (see November 1976) to deride Warnke’s arguments against nuclear superiority. Shortly after the memo, one of the CPD’s associate groups, the Coalition for a Democratic Majority (CDM) creates a “grassroots” organization, the Emergency Coalition Against Unilateral Disarmament (ECAUD), that actually functions out of the CDM offices in Washington. ECAUD, though an offshoot of the CDM, has a leadership made up of conservatives, including the American Conservative Union’s James Roberts, the Republican National Committee’s Charles Black, and the Conservative Caucus’s Howard Phillips. The directors of Young Americans for Freedom, the Young Republican National Federation, and the American Security Council (see 1978) are on the steering committee. And the executive director is Morton Blackwell, a hard-right conservative who works with direct-mail guru Richard Viguerie. In 2008, author J. Peter Scoblic will write, “Thus were the views of neoconservatives, hawks, and traditional conservatives given a populist base.” [Scoblic, 2008, pp. 101-102]
Contentious Confirmation Hearings - Scoblic describes the opposition to Warnke at his Senate confirmation hearings as “vicious.” Eminent Cold War foreign policy expert Paul Nitze (see January 1976) lambasts Warnke, calling his ideas “demonstrably unsound… absolutely asinine… screwball, arbitrary, and fictitious.” Neoconservative Daniel Patrick Moynihan (D-NY) gives over his first Senate speech to blasting Warnke; Moynihan’s Senate colleague, neoconservative leader Henry “Scoop” Jackson (D-WA—see Early 1970s) joins Moynihan in criticizing Warnke’s nomination, as does Barry Goldwater (R-AZ). Another conservative congressman accuses Warnke, falsely, of working with both Communists and terrorists: according to the congressman, Warnke is in collusion with “the World Peace Council, a Moscow-directed movement which advocates the disarmament of the West as well as support for terrorist groups.” Heritage Foundation chief Paul Weyrich uses Viguerie’s mass-mailing machine to send 600,000 letters to voters urging them to tell their senators to vote “no” on Warnke. [New York Times, 11/1/2001; Scoblic, 2008, pp. 103-104]
Warnke Confirmed, but Resistance Established - Warnke is confirmed by a 70-29 vote for the ACDA, and by a much slimmer 58-40 vote to head the US SALT II negotiating team. The New York Times’s Anthony Lewis later writes of “a peculiar, almost venomous intensity in some of the opposition to Paul Warnke; it is as if the opponents have made him a symbol of something they dislike so much that they want to destroy him.… [I]t signals a policy disagreement so fundamental that any imaginable arms limitation agreement with the Soviet Union will face powerful resistance. And it signals the rise of a new militant coalition on national security issues.” [Scoblic, 2008, pp. 104]
Effective Negotiator - Warnke will resign his position in October 1978. Though he will constantly be under fire from Congressional conservatives, and will frequently battle with administration hawks such as National Security Adviser Zbigniew Brzezinski, he will earn the respect of both American and Soviet negotiators. In 1979, disarmament scholar Duncan Clarke will write that the Soviets come to regard Warnke as one of the toughest of American negotiators, with one Soviet official saying: “We always wondered why Americans would pay so much for good trial attorneys. Now we know.” Warnke will have a strong influence on the eventual shape of the final SALT II agreement (see June 18, 1979-Winter 1979). [New York Times, 11/1/2001; Scoblic, 2008, pp. 104] Upon his death in 2001, fellow negotiator Ralph Earle will say, “Arms control will be forever on the agenda due in large part to Paul and his articulation of the importance of the issues.” [Arms Control Today, 1/1/2002]

President Carter attempts, and fails, to forge an agreement with the Soviet Union to drastically reduce the number of nuclear weapons the two countries possess (see Mid-January, 1977). Carter’s predecessor, Gerald Ford, left him with the framework of a potentially expansive SALT II (Strategic Arms Limitation Talks) agreement signed in Vladivostok (see November 23, 1974), but that agreement still allowed for an astonishing number of nuclear weapons—2,400 apiece. (The US does not even have 2,400 delivery vehicles.) Carter proposes that both sides significantly reduce their nuclear stockpiles. But Soviet Premier Leonid Brezhnev, lacking the political capital among his more hawkish colleagues and rivals in the Kremlin, not only refuses, but decries the suggestion as nothing but American propaganda. The two nations will eventually sign the SALT II accords two years later (see June 18, 1979-Winter 1979), after a fitful negotiation process, but the agreement will differ little from the Vladivostok agreement of 1974. [Scoblic, 2008, pp. 105]

Entity Tags: Leonid Brezhnev, Ford administration, James Earl “Jimmy” Carter, Jr.

Timeline Tags: US International Relations

The American Security Council (ASC), a McCarthy-era organization originally conceived to ferret out Communists from the American business community, and now broadening its focus to oppose any sort of detente with the Soviet Union or any arms control agreements, forms the Coalition of Peace Through Strength, an association of 148 members of Congress led by Senator Robert Dole (R-KS). It opposes any sort of arms reduction agreements with the Soviet Union, and particularly opposes the SALT II (Strategic Arms Limitation Talks) treaty negotiations. By 1979, its ranks in Congress will have grown to 191, and it will have the support of over 2,400 retired generals and admirals. The organization insists that any such agreements with the Soviet Union are nothing less than a “symbol of phased surrender.” The organization is allied with other hardline conservative groups, including the American Conservative Union, Phyllis Schlafly’s Eagle Forum, Young Americans for Freedom, and a loose organization of neoconservatives and disaffected Democratic hawks called the Coalition for a Democratic Majority. [Scoblic, 2008, pp. 72-73]

Entity Tags: Young Americans for Freedom, American Conservative Union, American Security Council, Coalition for a Democratic Majority, Coalition of Peace Through Strength, Phyllis Schlafly, Eagle Forum

Timeline Tags: US International Relations

US President Jimmy Carter and Soviet Premier Leonid Brezhnev sign the SALT II (Strategic Arms Limitation Talks) agreement in Vienna, after years of fitful negotiations. The basic outline of the accords is not much different from the agreement reached between Brezhnev and President Ford five years earlier (see November 23, 1974).
Conservative Opposition - The Senate must ratify the treaty before it becomes binding; Republicans and conservative Democrats alike oppose the treaty. Neoconservative Senator Henry “Scoop” Jackson (D-WA—see Early 1970s) compares Carter to former British Prime Minister Neville Chamberlain (who allowed the Nazis to occupy part of Czechoslovakia in 1938) in accusing Carter of “appeasement in its purest form” towards the Soviet Union. Members of the Committee on the Present Danger (CPD—see 1976) appear before the Senate 17 times to argue against ratification. Former Defense Secretary Donald Rumsfeld testifies against it, calling instead for a $44 billion increase in defense spending and once again evoking the specter of Nazi Germany: “Our nation’s situation is much more dangerous today than it has been at any time since Neville Chamberlain left Munich, setting the stage for World War II.” The American Security Council launches “Peace Through Strength Week” (see November 12, 1979). And Governor Ronald Reagan (R-CA), embarking on his presidential campaign, warns the nation that the Soviets could just “take us with a phone call,” forcing us to obey an ultimatum: “Look at the difference in our relative strengths. Now, here’s what we want.… Surrender or die.”
Familiar Arguments - In 2008, author J. Peter Scoblic will write that the arguments advanced against the SALT II treaty are the same as advanced so many times before (see August 15, 1974), including during the infamous “Team B” exercise (see November 1976). The Soviet Union believes it can win a nuclear war, opponents insist, and a treaty such as the one signed by Carter and Brezhnev merely plays into the Soviets’ hands. Once the US loses its significant advantage in nuclear payloads, the likelihood increases that the USSR incinerates American missile silos and dares the US to respond—the US might get off a volley of its remaining missiles, but the Soviets will then launch a second strike that will destroy America’s cities. And that US strike will have limited impact because of what critics call the Soviets’ extensive, sophisticated civil defense program. The US will have no other choice than to, in Scoblic’s words, “meekly submit to Soviet will.” SALT II plays into what the CPD calls the Soviet goal of not waging a nuclear war, but winning “political predominance without having to fight.” Scoblic will note, “An argument that had started on the fringes of the far Right was now being made with total seriousness by a strong cross-section of foreign policy experts, backed by significant public support.” Scoblic then calls the arguments “fatuous… grounded in zero-sum thinking.” The facts do not support the arguments. It is inconceivable, he will observe, that the US would absorb a devastating first strike without immediately launching its own overwhelming counterstrike. And for the critics to accept the tales of “extensive” Soviet civil defense programs, Scoblic argues, is for them to be “remarkably credulous of Soviet propaganda.” No matter what the Soviets did first, the US could kill upwards of 75 million Soviet citizens with its single strike, a circumstance the USSR was unlikely to risk. And, Scoblic will note, subsequent studies later prove the conservatives’ arguments completely groundless (see 1994).
Senate Fails to Ratify - By late 1979, the arguments advanced by Congressional conservatives, combined with other events (such as the “discovery” of a clutch of Soviet troops in Cuba) derails the chance of SALT II being ratified in the Senate. When the Soviet Union invades Afghanistan (see December 8, 1979), Carter withdraws the treaty from further consideration. Scoblic will note that by this point in his presidency, Carter has abandoned any pretense of attempting to reduce nuclear armaments (see Mid-January, 1977); in fact, “[h]is nuclear policies increasingly resembled those of Team B, the Committee on the Present Danger, and groups like the Emergency Coalition Against Unilateral Disarmament” (see Early 1977 and Late 1979-1980). Carter notes that such a treaty as the SALT II accord is the single most important goal of US foreign policy: “Especially now, in a time of great tension, observing the mutual constraints imposed by the terms of these treaties, [SALT I and II] will be in the best interest of both countries and will help to preserve world peace.… That effort to control nuclear weapons will not be abandoned.” [Scoblic, 2008, pp. 105-109, 117]

Entity Tags: Ronald Reagan, Committee on the Present Danger, American Security Council, ’Team B’, Donald Rumsfeld, Emergency Coalition Against Unilateral Disarmament, Henry (“Scoop”) Jackson, J. Peter Scoblic, James Earl “Jimmy” Carter, Jr., Leonid Brezhnev

Timeline Tags: US International Relations

Several hundred influential conservatives launch what they call “Peace Through Strength Week,” at a week-long conference in Washington, DC, held by the American Security Council (ASC—see 1978). The primary mission is to convince a majority of senators to vote against the SALT II (Strategic Arms Limitation Talks) arms-reduction treaty, which President Carter had signed five months before. Although the treaty sets equal limits on the number of nuclear missile launchers the US and the Soviet Union may possess, the conventioneers believe that, in the words of author J. Peter Scoblic, “it merely enshrine[s] American weakness in the face of a growing Soviet nuclear threat.” The convention is timed to coincide with Governor Ronald Reagan’s (R-CA) announcement that he is running for president, and borrows his signature phrase to describe his position on arms control.
'The SALT Syndrome' - The focal point of the ASC’s message is a half-hour film entitled “The SALT Syndrome.” Scoblic will describe it: “Set to a soundtrack fit for a horror movie, it featured image after image of missiles launching, submarines creeping, and nuclear weapons exploding, punctuated by commentary from retired generals and intelligence officials. The ‘syndrome’ was the American tendency to ‘unilaterally disarm,’ which had gripped Washington policy makers after the United States decided to follow [former Defense Secretary Robert] ‘McNamara’s theory of “no defense,” which is called “Mutual Assured Destruction.”’ The movie was a concise, vivid statement of conservative nuclear thought: MAD was a choice.” The movie tells its viewers that US citizens “play an important role in US strategy—that of nuclear hostage.” The film goes on to avow that the Soviets have produced far more missiles, long-range bombers, nuclear submarines, and various missile defenses than the US is willing to concede, giving the Soviets the capability of coercing the US into doing pretty much whatever they demand. “The movie,” Scoblic will write, “was a remarkable, and remarkably effective, piece of propaganda. It combined fact, exaggeration, and outright nonsense—one interviewee claimed the Soviet Union was on the verge of deploying particle beams that would shoot down all incoming missiles—to argue that the United States had left itself nearly helpless against a Soviet behemoth bent on world domination.” The film will play on American television stations some 2,000 times, and will reach, ASC chairman John Fisher will estimate, at least 137 million Americans.
Millions of Dollars Raised to Fight SALT II - The film successfully solicits millions of dollars in contributions from concerned and frightened Americans, much of which will go to advertising efforts to combat SALT II. The ASC will outspend pro-treaty forces by a ratio of 15 to 1. [American Security Council, 3/30/1980; Scoblic, 2008, pp. 72-73]

Entity Tags: John Fisher, Ronald Reagan, American Security Council, Robert McNamara, J. Peter Scoblic

Timeline Tags: US International Relations, Domestic Propaganda

Soviet tanks entering Afghanistan in late 1979.Soviet tanks entering Afghanistan in late 1979. [Source: Banded Artists Productions]The Soviet Union invades Afghanistan. The Russians were initially invited in by the Afghan government to deal with rising instability and army mutinies, and they start crossing the border on December 8. But on December 26, Russian troops storm the presidential palace, kill the country’s leader, Haizullah Amin, and the invitation turns into an invasion. [Blum, 1995, pp. 342] Later declassified high-level Russian documents will show that the Russian leadership believed that Amin, who took power in a violent coup from another pro-Soviet leader two months before, had secret contacts with the US embassy and was probably a US agent. Further, one document from this month claims that “the right wing Muslim opposition” has “practically established their control in many provinces… using foreign support.” [Cooley, 2002, pp. 8] It has been commonly believed that the invasion was unprovoked, but the Russians will later be proven largely correct. In a 1998 interview, Zbigniew Brzezinski, President Jimmy Carter’s National Security Adviser, will reveal that earlier in the year Carter authorized the CIA to destabilize the government, provoking the Russians to invade (see July 3, 1979). [Le Nouvel Observateur (Paris), 1/1998; Mirror, 1/29/2002] Further, CIA covert action in the country actually began in 1978 (see 1978), if not earlier (see 1973-1979). The US and Saudi Arabia will give a huge amount of money (estimates range up to $40 billion total for the war) to support the mujaheddin guerrilla fighters opposing the Russians, and a decade-long war will ensue. [Nation, 2/15/1999]

Entity Tags: United States, Saudi Arabia, Haizullah Amin, Zbigniew Brzezinski, Central Intelligence Agency

Timeline Tags: Complete 911 Timeline, 9/11 Timeline, War in Afghanistan

Worn down by incessant opposition from conservatives, neoconservatives, and hawks in both Republican and Democratic parties, President Carter has by now abandoned his goal of drastically reducing the amount of nuclear weapons in the US and Soviet arsenals (see Mid-January, 1977). Not only has he withdrawn the already-signed SALT II treaty from consideration for Senate ratification (see June 18, 1979-Winter 1979), he has deployed nuclear missiles in Europe, approved development of the MX missile (see June 1979), and taken other steps to increase the US military buildup, including sharply increasing defense spending from his first year in office. [Scoblic, 2008, pp. 109]

Entity Tags: James Earl “Jimmy” Carter, Jr.

Timeline Tags: US International Relations

Newly elected President Ronald Reagan begins his first term with a cabinet and senior staff made up of two quite different brands of conservatives. Reagan biographer Lou Cannon, in his 1991 book President Reagan: The Role of a Lifetime, will describe an administration riven between “pragmatists” or “realists,” whom their opponents dismiss as “accomodationists” or “one-worlders,” and “conservatives” or “Reaganauts,” whom their opponents label “crazies” or “hard-liners.” Both groups staunchly oppose communism and support increased defense spending, but they diverge on the subject of negotiating with the Soviet Union. The “pragmatists” favor working to extend the idea of detente with the USSR, while the “Reaganauts” see any such negotiations as nothing but appeasement of a murderous and implacable foe (see June 18, 1979-Winter 1979). During Reagan’s first term, particularly in the first three years, the “Reaganauts” hold the upper hand in setting his administration’s foreign policy. In 2008, author J. Peter Scoblic will write, “This period marked the closest conservatives came during the Cold War to seeing their principles translated into policy.” It also marks the closest the world came to an all-out nuclear war between the two superpowers since the Cuban Missile Crisis of 1963 (see November 2-11, 1983). The “pragmatists” will have much more say in setting policy during the last five years of Reagan’s presidency, and as a result will help engineer a dramatic reduction in tensions between the US and the Soviet Union as well as a treaty eliminating an entire class of nuclear weapons (see December 7-8, 1987). By the end of Reagan’s presidency, many conservatives have gone from enthusiastically supporting his policies to considering him a traitor to their ideology (see 1988). [Scoblic, 2008, pp. 115-116]

Entity Tags: Ronald Reagan, J. Peter Scoblic, Lou Cannon

Timeline Tags: US International Relations

In conjunction with his huge peacetime military buildup (see Early 1981 and After), President Reagan strongly opposes any sort of arms control or limitation discussions with the Soviet Union.
Rostow to ACDA - As a member of the Committee on the Present Danger (CPD—see 1976), Reagan had spoken out against the SALT II arms control treaty with the USSR (see June 18, 1979-Winter 1979), calling it “fatally flawed.” He has opposed every significant arms limitation agreement since 1963, no matter whether it was negotiated by Republican or Democratic administrations. To continue his opposition, Reagan appoints Eugene Rostow to head the Arms Control and Disarmament Agency (ACDA). Rostow, a fellow CPD member, is flatly opposed to any sort of arms control or disarmament agreement with the Soviet Union, and had led the CPD fight against the SALT II agreement. “Arms control thinking drives out sound thinking,” he told the Senate. [Scoblic, 2008, pp. 118-120] During his confirmation hearings, Rostow tells Senate questioners that the US could certainly survive a nuclear war, and gives World War II-era Japan as an example—that nation “not only survived but flourished after a nuclear attack.” When asked if the world could survive a full nuclear attack of thousands of nuclear warheads instead of the two that Japan had weathered, Rostow says that even though the casualties might be between “ten million… and one hundred million… [t]he human race is very resilient.” [Scoblic, 2008, pp. 126] Rostow’s aide at the ACDA, Colin Gray, says that “victory is possible” in a nuclear war provided the US is prepared to fight. [Scoblic, 2008, pp. 127]
Burt to State Department - Reagan names Richard Burt to head the State Department’s Bureau of Politico-Military Affairs, the State Department’s primary liaison with the Defense Department. Burt, a former New York Times reporter, is one of the few journalists synpathetic to the CPD, and recently called the SALT agreement “a favor to the Russians.” Just before joining the Reagan administration, Burt called for reductions in nuclear arms controls: “Arms control has developed the same kind of mindless momentum associated with other large-scale government pursuits. Conceptual notions of limited durability, such as the doctrine of mutual assured destruction [MAD], have gained bureaucratic constituencies and have thus been prolonged beyond their usefulness. There are strong reasons for believing that arms control is unlikely to possess much utility in the coming decade.” [Scoblic, 2008, pp. 118-120; US Department of State, 2008]
Perle to Defense Department - Perhaps the most outspoken opponent of arms control is neoconservative Richard Perle, named as assistant defense secretary for international security affairs. Perle, until recently the national security adviser to Senator Henry “Scoop” Jackson (D-WA—see Early 1970s), will quickly become, in author J. Peter Scoblic’s words, “the administration’s chief arms control obstructionist, dubbed ‘the Prince of Darkness’ by his enemies.” Perle once said: “The sense that we and the Russians could compose our differences, reduce them to treaty constraints… and then rely on compliance to produce a safer world. I don’t agree with any of that.” Now Perle is poised to act on his beliefs. [Scoblic, 2008, pp. 118-120]
Vice President Bush - Although seen as a pragmatist and not a hardline conservative (see January 1981 and After), Vice President George H. W. Bush is also optimistic about the chances of the US coming out on top after a nuclear exchange with the Soviet Union. During the 1980 campaign, he told a reporter: “You have a survivability of command and control, survivability of industrial potential, protection of a percentage of your citizens, and you have a capability that inflicts more damage on the opposition tham it inflicts on you. That’s the way you can have a winner.” [Scoblic, 2008, pp. 126-127]
Other Appointees - Perle’s immediate supervisor in Defense is Fred Ikle, who headed ACDA in 1973 and helped battle back part of the original SALT agreement. Ikle will be primarily responsible for the Pentagon’s “five-year plan” that envisions a “protracted nuclear war” as a viable option (see March 1982). Defense Secretary Caspar Weinberger considers the standoff between the US and the Soviet Union akin to the situation between Britain and Nazi Germany in 1938, with himself and his ideological confreres as Britain’s Winston Churchill and any attempt at arms control as nothing but appeasement. Energy Secretary James B. Edwards says of a hypothetical nuclear war, “I want to come out of it number one, not number two.” Pentagon official Thomas Jones tells a reporter that the US could handily survive a nuclear exchange, and fully recover within two to four years, if the populace digs plenty of holes, cover them with wooden doors, and bury the structures under three feet of dirt. “If there are enough shovels to go around, everybody’s going to make it,” he says. Reagan’s second National Security Adviser, William Clark, will, according to Reagan official and future Secretary of State George Shultz, “categorically oppos[e] US-Soviet contacts” of any kind. Some of the administration’s more pragmatic members, such as Reagan’s first Secretary of State Alexander Haig, will have limited access to Reagan and be cut off from many policy-making processes by Reagan’s more hardline senior officials and staffers. [Scoblic, 2008, pp. 118-120, 127; Air Force Magazine, 3/2008]

Entity Tags: George Herbert Walker Bush, Fred C. Ikle, Committee on the Present Danger, Colin Gray, Caspar Weinberger, Arms Control and Disarmament Agency, Alexander M. Haig, Jr., Eugene V. Rostow, US Department of State, William Clark, Thomas Jones, Richard Burt, Richard Perle, Reagan administration, James B. Edwards, Ronald Reagan, J. Peter Scoblic, US Department of Defense, Henry (“Scoop”) Jackson, George Shultz

Timeline Tags: US International Relations

American researcher John Hines and his team complete a five-year study of Soviet nuclear plans, based on interviews with 22 senior Soviet military personnel. The study finds that by the early 1970s, the Soviets realized that any possible nuclear exchange with the US would have been so cataclysmically devastating to both nations that no one could “win” such a war in any real sense. The Soviets never accepted the doctrine of MAD—“mutually assured destruction”—in an official sense, but, like the US, their policy was deterrence based on retaliation. Like the US, they believed that any “limited” nuclear exchange in Europe would quickly escalate into global thermonuclear holocaust, but they planned for it because they needed a strategy for a European conflict. In 2008, American author J. Peter Scoblic will write, “In short, Soviet nuclear doctrine was remarkably like our own.” [Scoblic, 2008, pp. 109]

Entity Tags: John Hines, J. Peter Scoblic

Timeline Tags: US International Relations

Law professor John Yoo writes a lengthy essay for the California Law Review entitled “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” in which he argues that the Founding Fathers intended to empower presidents to launch wars without Congressional permission. Yoo has clerked for conservative judge Laurence Silberman and equally conservative Supreme Court Justice Clarence Thomas, and served for a year as counsel to then-Senate Judiciary Committee Chairman Orrin Hatch (R-UT). He has become a regular speaker at Federalist Society events, the informal but influential group of conservative lawyers, judges, and legal scholars who will come to have so much influence in the Bush administration. You argues that for generations, Constitutional scholars have misread the Constitution: the Founders actually supported, not repudiated, the British model of executive power that gave the king the sole power of declaring war and committing forces to battle. The Constitution’s granting of the legislature—Congress—the power to “declare war” is merely, Yoo writes, a reference to the ceremonial role of deciding whether to proclaim the existence of a conflict as a diplomatic detail. The Founders always intended the executive branch to actually declare and commence war, he writes. Most other Constitutional scholars will dismiss Yoo’s arguments, citing notes from the Constitutional Convention that show the Founders clearly intended Congress, not the president, to decide whether to commit the country to war. One of those Founders, James Madison, wrote in 1795 that giving a president the unilateral ability to declare war “would have struck, not only at the fabric of the Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.” [Savage, 2007, pp. 80-81] Yoo will go on to join the Bush administration’s Office of Legal Counsel, and write numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002).

Entity Tags: Federalist Society, John C. Yoo

Timeline Tags: Civil Liberties

The first lines of the declassified Northwoods document.
The first lines of the declassified Northwoods document. [Source: Public domain] (click image to enlarge)James Bamford’s book, Body of Secrets, reveals a secret US government plan named Operation Northwoods. All details of the plan come from declassified military documents. [Associated Press, 4/24/2001; Baltimore Sun, 4/24/2001; Washington Post, 4/26/2001; ABC News, 5/1/2001] The heads of the US military, all five Joint Chiefs of Staff, proposed in a 1962 memo to stage attacks against Americans and blame Cuba to create a pretext for invasion. Says one document, “We could develop a Communist Cuban terror campaign in the Miami area, in other Florida cities and even in Washington.… We could blow up a US ship in Guantanamo Bay and blame Cuba. Casualty lists in US newspapers would cause a helpful wave of indignation.” In March 1962, Lyman L. Lemnitzer, Chairman of the Joint Chiefs of Staff, presented the Operation Northwoods plan to President John Kennedy and Defense Secretary Robert McNamara. The plan was rejected. Lemnitzer then sought to destroy all evidence of the plan. [Baltimore Sun, 4/24/2001; ABC News, 5/1/2001] Lemnitzer was replaced a few months later, but the Joint Chiefs continued to plan “pretext” operations at least through 1963. [ABC News, 5/1/2001] One suggestion in the plan was to create a remote-controlled drone duplicate of a real civilian aircraft. The real aircraft would be loaded with “selected passengers, all boarded under carefully prepared aliases,” and then take off with the drone duplicate simultaneously taking off near by. The aircraft with passengers would secretly land at a US military base while the drone continues along the other plane’s flight path. The drone would then be destroyed over Cuba in a way that places the blame on Cuban fighter aircraft. [Harper's, 7/1/2001] Bamford says, “Here we are, 40 years afterward, and it’s only now coming out. You just wonder what is going to be exposed 40 years from now.” [Insight, 7/30/2001] Some 9/11 skeptics will claim that the 9/11 attacks could have been orchestrated by elements of the US government, and see Northwoods as an example of how top US officials could hatch such a plot. [Oakland Tribune, 3/27/2004]

Entity Tags: John F. Kennedy, James Bamford, Lyman L. Lemnitzer, Robert McNamara

Timeline Tags: Alleged Use of False Flag Attacks, Complete 911 Timeline

The Geneva Conventions are mentioned in a memo issued the day after the publication of the Heritage Foundation paper (see November 5, 2001), but only to suggest that suspected terrorists should not be entitled to the rights enclosed in them. Patrick F. Philbin, a deputy in the OLC, sends a confidential 35-page memo to the White House legal counsel Gonzales, arguing that the president, as Commander-in-Chief, has “inherent authority” to establish military commissions without authorization from the US Congress. The 9/11 attacks are themselves “plainly sufficient” to justify the application of the laws of war. Furthermore, putting terrorists on trial under the laws of war, “does not mean,” according to Philbin, “that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants.” The Philbin memo will serve as a basis for a Presidential order (see November 13, 2001) establishing the option of military commissions, which will be drafted by Deputy White House Counsel Timothy E. Flanigan and David S. Addington, the legal counsel to Vice President Cheney. [New York Times, 10/24/2004]

Entity Tags: Patrick F. Philbin, Alberto R. Gonzales

Timeline Tags: Torture of US Captives

Deputy Assistant Attorney Generals Patrick Philbin and John Yoo send a memorandum to Pentagon General Counsel William J. Haynes offering the legal opinion that US courts do not have jurisdiction to review the detention of foreign prisoners at Guantanamo Bay. Therefore detentions of persons there cannot be challenged in a US court of law. The memo is endorsed by the Department of Defense and White House legal counsel Alberto Gonzales. [Newsweek, 5/24/2004] The memo addresses “the question whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the US naval base at Guantanamo Bay, Cuba.” The conclusion of Philbin and Yoo is that it cannot, based primarily on their interpretation of a decision by the US Supreme Court in the 1950 Eisentrager case, in which the Supreme Court determined that no habeas petition should be honored if the prisoners concerned are seized, tried, and held in territory that is outside of the sovereignty of the US and outside the territorial jurisdiction of any court of the US. Both conditions apply to Guantanamo according to Philbin and Yoo. Approvingly, they quote the US Attorney General in 1929, who stated that Guantanamo is “a mere governmental outpost beyond our borders.” A number of cases, quoted by the authors, “demonstrate that the United States has consistently taken the position that [Guantanamo Bay] remains foreign territory, not subject to US sovereignty.” Guantanamo is indeed land leased from the state of Cuba, and therefore in terms of legal possession and formal sovereignty still part of Cuba. But Philbin and Yoo acknowledge a problem with the other condition: namely that the territory is outside the US’s jurisdiction. They claim with certainty that Guantanamo “is also outside the ‘territorial jurisdiction of any court of the United States.’” However, the Supreme Court should not have made a distinction between jurisdiction and sovereignty here; the wording of the decision is really, Philbin and Yoo believe, an inaccurate reflection of its intent: “an arguable imprecision in the Supreme Court’s language.” For that reason, they call for caution. “A non-frivolous argument might be constructed, however, that [Guantanamo Bay], while not be part of sovereign territory of the United States, is within the territorial jurisdiction of a federal court.” [US Department of Justice, 12/28/2001 pdf file]

Entity Tags: John C. Yoo, Alberto R. Gonzales, Patrick F. Philbin, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

John Yoo, a neoconservative lawyer in the Justice Department’s Office of Legal Counsel serving as deputy assistant attorney general, writes a classified memo to senior Pentagon counsel William J. Haynes, titled “Application of Treaties and Law to al-Qaeda and Taliban Detainees.” [New York Times, 5/21/2004]
Yoo: Geneva Conventions Do Not Apply in War on Terror - Yoo’s memo, written in conjunction with fellow Justice Department lawyer Robert Delahunty, echoes arguments by another Justice Department lawyer, Patrick Philbin, two months earlier (see November 6, 2001). Yoo states that, in his view, the laws of war, including the Geneva Conventions, do not apply to captured Taliban or al-Qaeda prisoners, nor do they apply to the military commissions set up to try such prisoners.
Geneva Superseded by Presidential Authority - Yoo’s memo goes even farther, arguing that no international laws apply to the US whatsoever, because they do not have any status under US federal law. “As a result,” Yoo and Delahunty write, “any customary international law of armed conflict in no way binds, as a legal matter, the president or the US armed forces concerning the detention or trial of members of al-Qaeda and the Taliban.” In essence, Yoo and Delahunty argue that President Bush and the US military have carte blanche to conduct the global war on terrorism in any manner they see fit, without the restrictions of law or treaty. However, the memo says that while the US need not follow the rules of war, it can and should prosecute al-Qaeda and Taliban detainees for violating those same laws—a legal double standard that provokes sharp criticism when the memo comes to light in May 2004 (see May 21, 2004). Yoo and Delahunty write that while this double standard may seem “at first glance, counter-intuitive,” such expansive legal powers are a product of the president’s constitutional authority “to prosecute the war effectively.” The memo continues, “Restricting the president’s plenary power over military operations (including the treatment of prisoners)” would be “constitutionally dubious.” [Mother Jones, 1/9/2002; US Department of Justice, 6/9/2002 pdf file; Newsweek, 5/21/2004; New York Times, 5/21/2004]
Overriding International Legal Concerns - Yoo warns in the memo that international law experts may not accept his reasoning, as there is no legal precedent giving any country the right to unilaterally ignore its commitment to Geneva or any other such treaty, but Yoo writes that Bush, by invoking “the president’s commander in chief and chief executive powers to prosecute the war effectively,” can simply override any objections. “Importing customary international law notions concerning armed conflict would represent a direct infringement on the president’s discretion as commander in chief and chief executive to determine how best to conduct the nation’s military affairs.” [Savage, 2007, pp. 146] The essence of Yoo’s argument, a Bush official later says, is that the law “applies to them, but it doesn’t apply to us.” [Newsweek, 5/21/2004] Navy general counsel Alberto Mora later says of the memo that it “espoused an extreme and virtually unlimited theory of the extent of the president’s commander-in-chief authority.” [Savage, 2007, pp. 181]
White House Approval - White House counsel and future Attorney General Alberto Gonzales agrees (see January 25, 2002), saying, “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” [Mother Jones, 1/9/2002]
Spark for Prisoner Abuses - Many observers believe that Yoo’s memo is the spark for the torture and prisoner abuses later reported from Iraq’s Abu Ghraib prison (see Evening November 7, 2003), Guantanamo Bay (see December 28, 2001), and other clandestine prisoner detention centers (see March 2, 2007). The rationale is that since Afghanistan is what Yoo considers a “failed state,” with no recognizable sovereignity, its militias do not have any status under any international treaties. [Newsweek, 5/21/2004; Newsweek, 5/24/2004]
Resistance from Inside, Outside Government - Within days, the State Department will vehemently protest the memo, but to no practical effect (see January 25, 2002).

Entity Tags: Patrick F. Philbin, Robert J. Delahunty, US Department of Justice, Office of Legal Counsel (DOJ), Taliban, John C. Yoo, Colin Powell, Geneva Conventions, Al-Qaeda, George W. Bush, Alberto Mora, US Department of State, Alberto R. Gonzales, William J. Haynes

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

William Howard Taft IV.William Howard Taft IV. [Source: PBS]William Howard Taft IV, the State Department’s chief legal adviser, responds to John Yoo’s January 9,2002, memo (see January 9, 2002) saying that Yoo’s analysis is “seriously flawed.” Taft writes: “In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the [Geneva] Conventions. I have no doubt we can do so here, where a relative handful of persons is involved.” [Newsweek, 5/24/2004] Applying the Geneva Conventions, according to Taft, would demonstrate that the United States “bases its conduct on its international legal obligations and the rule of law, not just on its policy preferences.” Taft ends with a scorching criticism. “Your position is, at this point, erroneous in its substance and untenable in practice. Your conclusions are as wrong as they are incomplete. Let’s talk.” [Le Monde (Paris), 10/25/2004]

Entity Tags: William Howard Taft IV, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

Siding with the Pentagon and Justice Department against the State Department, President Bush declares the Geneva Conventions invalid with regard to conflicts with al-Qaeda and the Taliban. Secretary of State Colin Powell urges Bush to reconsider, saying that while Geneva does not apply to al-Qaeda terrorists, making such a decision for the Taliban—the putative government of Afghanistan—is a different matter. Such a decision could put US troops at risk. Both Defense Secretary Donald Rumsfeld and Joint Chiefs chairman General Richard B. Myers support Powell’s position. Yet another voice carries more weight with Bush: John Yoo, a deputy in the Justice Department’s Office of Legal Counsel (OLC—see October 23, 2001). Yoo says that Afghanistan is a “failed state” without a functional government, and Taliban fighters are not members of an army as such, but members of a “militant, terrorist-like group” (see January 9, 2002). White House counsel Alberto Gonzales agrees with Yoo in a January 25 memo, calling Yoo’s opinion “definitive.” The Gonzales memo concludes that the “new kind of war” Bush wants to fight should not be equated with Geneva’s “quaint” privileges granted to prisoners of war, or the “strict limitations” they impose on interrogations (see January 25, 2002). Military lawyers dispute the idea that Geneva limits interrogations to recitals of name, rank, and serial number, but their objections are ignored. For an OLC lawyer to override the judgment of senior Cabinet officials is unprecedented. OLC lawyers usually render opinions on questions that have already been deliberated by the legal staffs of the agencies involved. But, perhaps because OLC lawyers like Yoo give Bush the legal opinions he wants, Bush grants that agency the first and last say in matters such as these. “OLC was definitely running the show legally, and John Yoo in particular,” a former Pentagon lawyer will recall. “Even though he was quite young, he exercised disproportionate authority because of his personality and his strong opinions.” Yoo is also very close to senior officials in the office of the vice president and in the Pentagon’s legal office. [Ledger (Lakeland FL), 10/24/2004]
Undermining, Cutting out Top Advisers - Cheney deliberately cuts out the president’s national security counsel, John Bellinger, because, as the Washington Post will later report, Cheney’s top adviser, David Addington, holds Bellinger in “open contempt” and does not trust him to adequately push for expanded presidential authority (see January 18-25, 2002). Cheney and his office will also move to exclude Secretary of State Colin Powell from the decision-making process, and, when the media learns of the decision, will manage to shift some of the blame onto Powell (see January 25, 2002). [Washington Post, 6/24/2007]
Final Decision - Bush will make his formal final declaration three weeks later (see February 7, 2002).

Entity Tags: US Department of Defense, US Department of Justice, Richard B. Myers, US Department of State, Taliban, Office of Legal Counsel (DOJ), John C. Yoo, Alberto R. Gonzales, Richard (“Dick”) Cheney, Colin Powell, Al-Qaeda, Condoleezza Rice, Donald Rumsfeld, John Bellinger, George W. Bush, Geneva Conventions, David S. Addington

Timeline Tags: Torture of US Captives, Civil Liberties

White House lawyer Alberto Gonzales completes a draft memorandum to the president advising him not to reconsider his decision (see January 18-25, 2002) declaring Taliban and al-Qaeda fighters ineligible for prisoner of war status as Colin Powell has apparently recommended. [US Department of Justice, 1/25/2004 pdf file; Newsweek, 5/24/2004] The memo recommends that President Bush accept a recent Office of Legal Counsel (OLC) memo saying that the president has the authority to set aside the Geneva Conventions as the basis of his policy (see January 9, 2002). [Savage, 2007, pp. 146]
Geneva No Longer Applies, Says Gonzales - Gonzales writes to Bush that Powell “has asked that you conclude that GPW [Third Geneva Convention] does apply to both al-Qaeda and the Taliban. I understand, however, that he would agree that al-Qaeda and the Taliban fighters could be determined not to be prisoners of war (POWs) but only on a case-by-case basis following individual hearings before a military board.” Powell believes that US troops will be put at risk if the US renounces the Geneva Conventions in relation to the Taliban. Rumsfeld and his chairman of the Joint Chiefs of Staff, Gen. Richard B. Myers, allegedly agree with Powell’s argument. [New York Times, 10/24/2004] But Gonzales says that he agrees with the Justice Department’s Office of Legal Counsel, which has determined that the president had the authority to make this declaration on the premise that “the war against terrorism is a new kind of war” and “not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW [Geneva Convention on the treatment of prisoners of war].” Gonzales thus states, “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” [Newsweek, 5/24/2004] Gonzales also says that by declaring the war in Afghanistan exempt from the Geneva Conventions, the president would “[s]ubstantially [reduce] the threat of domestic criminal prosecution under the War Crimes Act [of 1996]” (see August 21, 1996). The president and other officials in the administration would then be protected from any future “prosecutors and independent counsels who may in the future decide to pursue unwarranted charges.” [New York Times, 5/21/2004; Newsweek, 5/24/2004]
Memo Actually Written by Cheney's Lawyer - Though the memo is released under Gonzales’s signature, many inside the White House do not believe the memo was written by him; it has an unorthodox format and a subtly mocking tone that does not go with Gonzales’s usual style. A White House lawyer with direct knowledge of the memo later says it was written by Cheney’s chief lawyer, David Addington. Deputy White House counsel Timothy Flanigan passed it to Gonzales, who signed it as “my judgment” and sent it to Bush. Addington’s memo quotes Bush’s own words: “the war against terrorism is a new kind of war.” [Washington Post, 6/24/2007]
Powell 'Hits the Roof' over Memo - When Powell reads the memo (see January 26, 2002), he reportedly “hit[s] the roof” and immediately arranges for a meeting with the president (see January 25, 2002). [Newsweek, 5/24/2004]

Entity Tags: George W. Bush, Office of Legal Counsel (DOJ), Geneva Conventions, Alberto R. Gonzales, Colin Powell, David S. Addington, Al-Qaeda, Taliban, Richard B. Myers

Timeline Tags: Torture of US Captives, Civil Liberties

The Navy’s general counsel, Alberto Mora, is angered at the lack of response to his attempts to persuade the Pentagon to stop abusing prisoners at Guantanamo and is particularly frustrated with the Pentagon’s general counsel, William J. Haynes (see December 20, 2002 and January 9, 2003 and After). Mora decides to take a step that he knows will antagonize Haynes, who always warns subordinates never to put anything controversial in writing or in e-mail messages. Mora delivers an unsigned draft memo of his objections to Haynes, and tells him that he intends to “sign it out” that afternoon—thereby making it an official document—unless the harsh interrogation techniques at Guantanamo stop. Mora’s memo describes the interrogations at Guantanamo as “at a minimum cruel and unusual treatment, and, at worst, torture.”
'Working Group to Be Created - Haynes calls Mora later that day with good news: Defense Secretary Donald Rumsfeld is suspending his authorization of the disputed interrogation techniques (see December 2, 2002) and is appointing a “working group” of lawyers from all branches of the armed forces to develop new interrogation guidelines. Mora will be a part of that working group. An elated Mora begins working with the group of lawyers to discuss the constitutionality and effectiveness of various interrogation techniques. In 2006, he will say that he felt “no one would ever learn about the best thing I’d ever done in my life.”
Mora Outmaneuvered - But Haynes has outmaneuvered Mora. A week later, Mora sees a lengthy classified document that negates every argument he has made. Haynes has already solicited a second, overarching opinion from John Yoo, a lawyer at the Justice Department’s Office of Legal Counsel, that supersedes Mora’s working group (see January 9, 2002). Mora is astonished (see January 23-Late January, 2003). He will later learn that the working group’s report will be forced to comply with Yoo’s legal reasoning. In fact, the group’s final report is never completed—though the draft report, which follows Yoo’s memo, is signed by Rumsfeld without Mora’s knowledge. [New Yorker, 2/27/2006] Mora later says that while Yoo’s memo displays a “seeming sophistication,” it is “profoundly in error,” contradicting both domestic law and international treaties. Mora and the other “dissident” members of the working group are led to believe that the report has been abandoned. [Savage, 2007, pp. 181] He will learn about Rumsfeld’s signature on the draft report while watching C-SPAN in mid-2004. [New Yorker, 2/27/2006; Savage, 2007, pp. 189]

Entity Tags: US Department of Defense, US Department of Justice, Alberto Mora, John C. Yoo, Office of Legal Counsel (DOJ), Donald Rumsfeld, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

The Navy’s general counsel, Alberto Mora, is shocked when he reads a legal opinion drafted by John Yoo, of the Justice Department’s Office of Legal Counsel, about techniques that can be used in prisoner interrogations (see January 9, 2002). Mora has been fighting the use of questionable techniques and was part of a working group that was reviewing them (see January 15-22, 2003). The opinion was sought by Pentagon general counsel William J. Haynes and not only counters every legal and moral argument Mora has brought to bear, but supersedes the working group. Only one copy of the opinion exists, kept in the office of the Air Force’s general counsel, Mary Walker, the head of the working group.
'Catastrophically Poor Legal Reasoning' - Mora reads it in Walker’s office with mounting horror. The opinion says nothing about prohibiting cruel, degrading, and inhuman treatment of detainees; in fact, it defends such tactics. While sophisticated, it displays “catastrophically poor legal reasoning,” he will later recall. Mora believes that it approaches the level of the notorious Supreme Court decision in Korematsu v. United States, the 1944 decision that upheld the government’s detention of innocent Japanese-Americans during World War II. Mora is not aware that Yoo, like Haynes, is a member of an informal but extremely powerful “inner circle” dominated by David Addington, the chief of staff for Vice President Cheney. In fact, Yoo and Haynes are regular racquetball partners. Like Addington and Cheney, Yoo believes in virtually unrestricted executive powers during a time of war. Yoo wrote that almost any interrogation methods used against terror suspects is legally permissible, an argument that shocks Mora.
Mora's Response - In his June 2004 memo on the subject (see July 7, 2004), Mora will write, “The memo espoused an extreme and virtually unlimited theory of the extent of the President’s Commander-in-Chief authority.” Yoo’s reasoning is “profoundly in error,” Mora concludes, and is “clearly at variance with applicable law.” In 2006, Mora will add, “If everything is permissible, and almost nothing is prohibited, it makes a mockery of the law.” He writes to Walker shortly thereafter, saying that not only is Yoo’s opinion “fundamentally in error” but “dangerous,” because it has the weight of law and can only be reversed by the Attorney General or the President. Walker writes back that she disagrees, and she believes Haynes does as well. Two weeks later, Mora will discuss the memo with Yoo (see February 6, 2003). [New Yorker, 2/27/2006]

Entity Tags: William J. Haynes, David S. Addington, Alberto Mora, John C. Yoo, Mary L. Walker, Office of Legal Counsel (DOJ), Richard (“Dick”) Cheney, US Department of Defense, US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties

Alberto Mora, the Navy’s general counsel, invites Justice Department lawyer John Yoo to his office to discuss Yoo’s recent memo defending the legality of extreme interrogation techniques used against terror suspects (see January 9, 2002). Mora has been working to put an end to such tactics at the Pentagon, but was horrified when his supervisor, Pentagon general counsel William Haynes, outflanked him with the Yoo memo (see January 23-Late January, 2003). Mora wants to know if Yoo believes cruel, inhuman or degrading treatment can be allowed at Guantanamo, and if that the president’s authority to order torture is virtually unlimited. During the meeting with Yoo, Mora asks him, “Are you saying the President has the authority to order torture?” Yoo replies, “Yes.” “I don’t think so,” Mora retorts. “I’m not talking policy,” Yoo replies, “I’m just talking about the law.” Mora responds, “Well, where are we going to have the policy discussion, then?” Yoo has no idea. Perhaps it will take place within the Pentagon, where the defense-policy experts are. Mora knows that no such discussion will ever take place; the Bush administration will use Yoo’s memo to justify its support of torture. [New Yorker, 2/27/2006; Washington Post, 4/2/2008]

Entity Tags: William J. Haynes, John C. Yoo, Alberto Mora, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

Jack Goldsmith succeeds Jay Bybee as the head of the Justice Department’s Office of Legal Counsel (OLC). The OLC essentially performs two functions: advising the executive branch on the legal limits of presidential power, and crafts legal justifications for the actions of the president and the executive branch. Goldsmith, who along with fellow Justice Department counsel and law professor John Yoo, is seen as one of the department’s newest and brightest conservative stars. But instead of aiding the Bush administration in expanding the power of the executive branch, Goldsmith will spend nine tumultuous months battling the White House on issues such as the NSA’s warrantless wiretapping program, the administration’s advocacy of torture in the interrogation of terrorism suspects, and the extralegal detention and military tribunals of “enemy combatants.” Goldsmith will find himself at odds with Yoo, the author of two controversial OLC memos that grant the US government wide latitude in torturing terror suspects (see January 9, 2002 and August 1, 2002), with White House counsel and future attorney general Alberto Gonzales, and with the chief aide to Vice President Dick Cheney, David Addington, who along with Cheney is one of the strongest advocates of the so-called “unitary executive” theory of governance, which says the president has virtually unlimited powers, especially in the areas of national security and foreign policy, and is not always subject to Congressional or judicial oversight. Within hours of Goldsmith’s swearing-in, Goldsmith receives a phone call from Gonzales asking if the Fourth Geneva Convention, which protects civilians in war zones such as Iraq, covers terrorists and insurgents as well. Goldsmith, after intensive review with other lawyers in and out of the Justice Department, concludes that the conventions do indeed apply. Ashcroft concurs. The White House does not. Goldsmith’s deputy, Patrick Philbin, says to Goldsmith as they drive to the White House to meet with Gonzales and Addington, “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” Philbin’s prediction is accurate; Addington is, Goldsmith recalls, “livid.” The physically and intellectually imposing Addington thunders, “The president has already decided that terrorists do not receive Geneva Convention protections. You cannot question his decision.” Addington refuses to accept Goldsmith’s explanations. Months later, an unmollified Addington will tell Goldsmith in an argument about another presidential decision, “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.” These initial encounters set the tone for Goldsmith’s stormy tenure as head of the OLC. Goldsmith will lead a small group of administration lawyers in what New York Times Magazine reporter Jeffrey Rosen calls a “behind-the-scenes revolt against what [Goldsmith] considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror,” Goldsmith will resign in June of 2004 (see June 17, 2004). [New York Times Magazine, 9/9/2007]

Entity Tags: Richard (“Dick”) Cheney, US Department of Justice, Office of Legal Counsel (DOJ), John C. Yoo, Jack Goldsmith, David S. Addington, Alberto R. Gonzales, National Security Agency, Jay S. Bybee, John Ashcroft, Jeffrey Rosen

Timeline Tags: Civil Liberties

Top: the seven detainees are forced to form a human pyramid. Charles Graner and Sabrina Harman stand behind them smiling and giving thumbs up signs. Bottom: Some of the same detainees are forced to simulate oral sex on each other. Top: the seven detainees are forced to form a human pyramid. Charles Graner and Sabrina Harman stand behind them smiling and giving thumbs up signs. Bottom: Some of the same detainees are forced to simulate oral sex on each other. [Source: Public domain]At Abu Ghraib, seven Iraqi detainees are brought to Cellblock 1A from one of the tent camps escorted by MPs. The seven Iraqis are suspected of having taken part in a fight. They include Nori al-Yasseri, Hussein Mohssein Mata al-Zayiadi, and four others known only by their first names: Haidar, Ahmed, Ahzem, Hashiem and Mustafa. [Washington Post, 5/21/2004; US Department of Defense, 8/23/2004 pdf file] They are repeatedly punched and attacked by Staff Sgt. Ivan L. Frederick, Spc. Charles Graner, and other MPs (see Evening November 7, 2003). The MPs then take out their cameras to take pictures of the seven naked men and begin putting them in humiliating poses, often placing themselves in the picture as well, smiling. Graner makes them climb on top of each other to form a human pyramid, as is reported by Spc. Sabrina Harman. [Washington Post, 5/22/2004; Rolling Stone, 7/28/2004] “They put us two on the bottom, two on top of them, and two on top of those and on top,” Al-Zayiadi will say. [Washington Post, 5/21/2004] “The pyramid lasted about 15 to 20 minutes,” according to Harman. [Washington Post, 5/22/2004] The prisoners are also made to crawl on hands and knees with MPs riding on their backs. [Rolling Stone, 7/28/2004] “They were sitting on our backs like riding animals,” Al-Zayiadi says. Meanwhile, others are taking photographs. [Washington Post, 5/21/2004] Frederick then takes hold of the prisoner whom he has singled out for additional punishment and motions him to masturbate. “I grabbed his arm by the elbow, put it on his genitals and moved it back and forth with an arm motion, and he did it.” [Los Angeles Times, 10/21/2004] He makes another detainee do the same. “I lifted his hood and gave him a hand gesture, telling him to keep doing it himself.” [New York Times, 10/21/2004] Spc. Matthew Wisdom, who complained to his team leader Sgt. Robert Jones earlier in the evening about the treatment of the detainees, returns to Tier 1A to find a naked detainee being forced to masturbate in front of another naked detainee on his knees before him. “I saw two naked detainees,” Wisdom will later recall, “one masturbating to another kneeling with its mouth open. I thought I should just get out of there. I didn’t think it was right.” [New Yorker, 5/10/2004] According to Wisdom, Frederick says to him: “Look what these animals do when we leave them alone for two seconds.” [New Yorker, 5/10/2004; Los Angeles Times, 8/5/2004] Meanwhile, Pfc. Lynndie England makes sexually suggestive comments “in a somewhat sarcastic, fun tone of voice,” according to Wisdom. [Los Angeles Times, 8/5/2004] “I heard Pfc. England shout out, ‘He’s getting hard.’” [New Yorker, 5/10/2004] Again Wisdom leaves the building to tell Sgt. Jones, who assures him the “problem [will] be addressed and dealt with,” [Los Angeles Times, 8/5/2004] and Wisdom assumes that the problem will be taken care of. [New Yorker, 5/10/2004] Others, meanwhile, are lined up and forced to masturbate. These facts are corroborated by photographs that show the MPs laughing as they look on. [Rolling Stone, 7/28/2004] Al-Zayiadi later identifies himself in one of these pictures. “They told my friend to masturbate and told me to masturbate also, while they were taking pictures,” he says. [Washington Post, 5/21/2004] In the end, Al-Zayiadi says they are tossed naked but still hooded into a cell. “They opened the water in the cell and told us to lay face down in the water and we stayed like that until the morning, in the water, naked, without clothes.” [Washington Post, 5/21/2004] One of the seven prisoners is likely Haydar Sabbar Abed who says he was originally arrested for not carrying his ID card. After being involved in a fight with an Iraqi prison employee in one of the tent camps, he is taken to the Hard Site. He later recalls: “They cut off our clothes and… told us to masturbate towards this female soldier. But we didn’t agree to do it, so they beat us.” He also says: “They made us act like dogs, putting leashes around our necks. They’d whistle and we’d have to bark like dogs. We thought they were going to kill us.” [BBC, 8/4/2004] The next day, Wisdom asks for and is granted a transfer to a job elsewhere in the prison. Although he and Sgt. Jones say they have been angered by the abuse, they do little more than mildly confront their colleagues with their objections. [Los Angeles Times, 8/5/2004] To the detainees, the experience has been harrowing. Al-Yasseri will later call it a “night which we felt like 1,000 nights.” “I was trying to kill myself,” says Al-Zayiadi, “but I didn’t have any way of doing it.” [Rolling Stone, 7/28/2004] Gen. George Fay will also describe these incidents in his report (see August 25, 2004), which he concludes was an the affair of MPs alone. He states that military intelligence “involvement in this abuse has not been alleged nor is it likely.” However, one of the pictures taken that night, depicting the “human pyramid,” is later used as a screen saver for a computer in the Hard Site. The screen saver is later seen by a female military intelligence interrogator, but she states, according to Gen. Fay, that she did not report the picture because she did not see it again. The same interrogator, Fay will report, had a “close personal relationship” with Staff Sgt. Frederick, [US Department of Defense, 8/23/2004 pdf file] one of the main instigators of the abuse that night.

Entity Tags: Javal Davis, Ivan L. Frederick II, Jeremy C. Sivits, Matthew Wisdom, Shannon K. Snider, Hussein Mohssein Mata Al-Zayiadi, Lynndie England, Nori al-Yasseri, Mustafa, Haydar Sabbar Abed, George R. Fay, Haidar, New Yorker, Hashiem, Ahmed, Charles Graner, Ahzem, Sabrina Harman, Robert Jones II

Timeline Tags: Torture of US Captives

Jack Goldsmith, the new head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), finds himself embroiled in a huge, if secretive, controversy over Justice Department lawyer John Yoo’s torture memos (see January 9, 2002 and January 25, 2002). Yoo, who wrote the original memos over former OLC chief Jay Bybee’s signature, had placed the OLC in the position of asserting that torture can indeed be used against terror suspects. Goldsmith disagrees, feeling that Yoo’s definitions of torture are far too narrow and give far too much latitude to US interrogators. He also believes that Yoo’s assertions of near-unchecked presidential power to authorize torture—at the direct expense of Congressional and judicial oversight—has no legal basis. And, Goldsmith worries, the opinions could be interpreted as a clumsy, “tendentious” attempt to protect Bush officials from criminal charges. The conflict between Goldsmith and Yoo will cost the two men their friendship. “I was basically taking steps to fix the mistakes of a close friend, who I knew would be mad about it,” Goldsmith will recall in 2007. “We don’t talk anymore, and that’s one of the many sad things about my time in government.” Goldsmith decides to withdraw the follow-up March 2003 torture memo, and tells White House officials they cannot rely on it any longer. Actually doing so proves a tricky business. [New York Times Magazine, 9/9/2007]
'Serious, Serious Problems' - Goldsmith will say in September 2007: “As soon as I absorbed the opinions I realized… that my reaction to them was a big problem. The Office of Legal Counsel rarely overturns its prior opinions, and even more rarely does so within an administration, and even more rarely than that, in the same administration about something this important. I didn’t find any precedent for it. And I did not want to do anything to affect either the programs or the underlying opinions. But they were serious, serious problems, and I knew if and when I was asked to stand by them that I would have a very hard time doing so.” [Newsweek, 9/8/2007]
Pressure from Abu Ghraib Scandal - The legal and bureaucratic niceties of withdrawing the memos become moot when, in April 2004, the Abu Ghraib scandal breaks (see Mid-April 2004), and when in June 2004, the first memo is leaked to the media. “After the leak, there was a lot of pressure on me within the administration to stand by the opinion,” he later says, “and the problem was that I had decided six months earlier that I couldn’t stand by the opinion.” [New York Times Magazine, 9/9/2007] “I had determined that the analysis was flawed,” he will recall. “But I hadn’t determined the underlying techniques were illegal. After Abu Ghraib, there was enormous pressure for me to stand by the decisions… and I couldn’t do so. I had already made up my mind many months earlier and I wasn’t about to change it. But I struggled for several days with what the consequences might be of withdrawing the opinion, because I wasn’t in the position to make an independent ruling on the other techniques. I certainly didn’t think they were unlawful, but I couldn’t get an opinion that they were lawful either. So I struggled to repudiate the flawed opinion while not causing massive disruption and fright throughout the counterterrorism world related to interrogation. And I ultimately decided that I had to withdraw those and under suspicions, stand by it, because it was so thoroughly flawed.” [Newsweek, 9/8/2007]
White House Resists Change - Though Goldsmith has the support of his boss, Attorney General John Ashcroft, Ashcroft’s deputy, James Comey, and his own deputy, Patrick Philbin, he knows the White House will fight the withdrawal. Goldsmith will decide to issue the withdrawal and then resign his position (see June 17, 2004), effectively forcing the administration to either quietly accept the withdrawal, or fight it and make his resignation a media circus. “If the story had come out that the US government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” he later recalls. “The timing was designed to ensure that the decision stuck.” Vice President Dick Cheney’s chief aide, David Addington, among other White House officials, is furious over the withdrawal of the torture opinion (interestingly, White House counsel and future attorney general Alberto Gonzales will modify his own opposition to the withdrawals later, telling Goldsmith in 2007, “I guess those opinions really were as bad as you said”). [New York Times Magazine, 9/9/2007]
Expansion of Presidential Power - Addington asks Goldsmith incredulously, “Why are you trying to give away the president’s power?” Like Cheney, Addington believes, in Goldsmith’s words, “that the very act of asking for Congress’s help would imply, contrary to the White House line, that the president needed legislative approval and could not act on his own. The president’s power would diminish, Addington thought, if Congress declined its support once asked, especially if it tried to restrict presidential power in some way. Congress had balked, during the month after 9/11, at giving the president everything he had asked for in the Congressional authorization to use force and the Patriot Act. Things would only be worse in 2004 and beyond, Addington believed.” Addington’s two questions are always, Goldsmith writes, “‘Do we have the legal power to do it ourselves?’ (meaning on the president’s sole authority), and ‘Might Congress limit our options in ways that jeopardize American lives?’” While Goldsmith and his colleagues agree that the president has the power, and that seeking Congressional approval might tie the White House’s hands more so than the administration is willing to accept, Goldsmith worries that an unfavorable Supreme Court decision would undercut Bush’s authority much more so than any restrictions passed by a compliant, Republican-led Congress. Addington sees things in very simple terms: ”“We’re going to push and push and push until some larger force makes us stop,” Addington says on several occasions. Addington tells Goldsmith, “Now that you’ve withdrawn legal opinions that the president of the United States has been relying on, I need you to go through all of [the OLC terror memos] and let me know which ones you still stand by.” Goldsmith will do just that, further angering Addington. [Savage, 2007, pp. 184; Slate, 9/11/2007]
Absolute Power Required to Defend Nation - Goldsmith later writes: “He and, I presumed, his boss viewed power as the absence of constraint. These men believed that the president would be best equipped to identify and defeat the uncertain, shifting, and lethal new enemy by eliminating all hurdles to the exercise of his power. They had no sense of trading constraint for power. It seemed never to occur to them that it might be possible to increase the president’s strength and effectiveness by accepting small limits on his prerogatives in order to secure more significant support from Congress, the courts, or allies. They believed cooperation and compromise signaled weakness and emboldened the enemies of America and the executive branch. When it came to terrorism, they viewed every encounter outside the innermost core of most trusted advisers as a zero-sum game that if they didn’t win they would necessarily lose.” [Slate, 9/11/2007]

Entity Tags: John Ashcroft, John C. Yoo, Jay S. Bybee, Office of Legal Counsel (DOJ), James B. Comey Jr., David S. Addington, Patrick F. Philbin, Alberto R. Gonzales, Bush administration (43), Daniel Levin, Jack Goldsmith, US Department of Justice

Timeline Tags: Civil Liberties

Newsweek reveals the existence of the January 9, 2002 draft memo written by Justice Department lawyers John Yoo and Robert Delahunty (see January 9, 2002). [Newsweek, 5/21/2004]

Entity Tags: Robert J. Delahunty, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

Jack Goldsmith, once considered a rising star in the Bush administration (see October 6, 2003), resigns under fire from his position as chief of the Justice Department’s Office of Legal Counsel (OLC). In his nine-month tenure, Goldsmith fought against the administration’s warrantless wiretapping program, its advocacy of torture, and its policy of extrajudicial detention and trial for terror suspects. Goldsmith will not discuss his objections to the administration’s policy initiatives until September 2007, when he will give interviews to a variety of media sources in anticipation of the publication of his book, The Terror Presidency. Goldsmith led a small, in-house revolt of administration lawyers against what they considered to be the constitutional excesses of the legal policies advocated by the administration in its war on terrorism. “I was disgusted with the whole process and fed up and exhausted,” he will recall. Goldsmith chooses to remain quiet about his resignation, and as a result, his silence will be widely misinterpreted by media, legal, and administration observers. Some even feel that Goldsmith should be investigated for his supposed role in drafting the torture memos (see January 9, 2002, August 1, 2002, and December 2003-June 2004) that he had actually opposed. “It was a nightmare,” Goldsmith will recall. “I didn’t say anything to defend myself, except that I didn’t do the things I was accused of.” [New York Times Magazine, 9/9/2007] Goldsmith will not leave until the end of July, and will take a position with the Harvard University Law School. Unlike many other Justice Department officials, he will not be offered a federal judgeship, having crossed swords with White House lawyers too many times. [Savage, 2007, pp. 191]

Entity Tags: US Department of Justice, Office of Legal Counsel (DOJ), Jack Goldsmith

Timeline Tags: Civil Liberties

Navy General Counsel Alberto J. Mora writes a secret, but unclassified, memo to Vice Admiral Albert Church, who led a Pentagon investigation into abuses at the US detention facility at Guantanamo Bay. Mora writes the memo in an attempt to stop what he sees as a disastrous and unlawful policy of authorizing cruel and inhuman treatment of terror suspects. The memo details in chronological fashion Mora’s earlier attempts to speak out against the Bush administration’s decision to circumvent the Geneva Conventions (see January 9, 2002 and January 11, 2002).
Specific Problems - Mora, a veteran of the Reagan and George H. W. Bush administrations and a strong supporter of the “war on terror,” argues that a refusal to outlaw cruelty toward US-held terrorist suspects is an implicit invitation to abuse. Mora also writes that the Bush administration’s legal arguments that justify an expansion of executive power in everything from interrogations to warrantless wiretapping are “unlawful,” “dangerous,” and “erroneous” legal theories. Not only are they wrong in granting President Bush the right to authorize torture, he warns that they may leave US personnel open to criminal prosecution. While the administration has argued that it holds to humane, legal standards in interrogation practices (see January 12, 2006), Mora’s memo shows that from the outset of the administration’s “war on terror,” the White House, the Justice Department, and the Defense Department intentionally skirted and at times ignored domestic and international laws surrounding interrogation and detention of prisoners.
Cruelty and Torture - Mora will later recall the mood in the Pentagon: “The mentality was that we lost three thousand Americans [on 9/11], and we could lose a lot more unless something was done. It was believed that some of the Guantanamo detainees had knowledge of other 9/11-like operations that were under way, or would be executed in the future. The gloves had to come off. The US had to get tougher.” But, Mora will say, the authorization of cruel treatment of detainees is as pernicious as any defined torture techniques that have been used. “To my mind, there’s no moral or practical distinction,” he says. “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make this exception, the whole Constitution crumbles. It’s a transformative issue.… The debate here isn’t only how to protect the country. It’s how to protect our values.” [Mora, 7/7/2004 pdf file; New Yorker, 2/27/2006]

Entity Tags: Geneva Conventions, Richard (“Dick”) Cheney, US Department of Defense, Alberto Mora, Albert T. Church III, US Department of Justice, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

The Senate Judiciary Committee brings in several experts to expand upon the testimony of attorney general nominee Alberto Gonzales (see January 6, 2005 and January 6, 2005). One of the most outspoken critics is Yale Law School dean Harold Koh. Koh had worked in the Justice Department’s Office of Legal Counsel (OLC) under Ronald Reagan, and later served as assistant secretary of state for democracy, human rights, and labor in the Clinton administration. He is a vocal critic of the Bush administration’s detention policies at Guantanamo and elsewhere. Koh had once worked closely with OLC lawyer John Yoo, the author of numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002), but now, without explicitly mentioning Yoo by name, he repudiates his former student’s legal positions. Gonzales worked closely with Yoo to craft the administration’s positions on wiretapping, torture, the inherent power of the president, and other issues. “Having worked in both Democratic and Republican administrations, and for more than two years as an attorney in the Office of Legal Counsel, I am familiar with how legal opinions like this are sought and drafted,” Koh states. “I further sympathize with the tremendous pressures of time and crisis that government lawyers face while drafting such opinions. Nevertheless, in my professional opinion, the August 1, 2002 OLC memorandum [drafted by Yoo at Gonzales’s behest—see August 1, 2002] is perhaps the most clearly erroneous legal opinion I have ever read.” The August 1 memo, as well as other opinions by Yoo and Gonzales, “grossly overreads the inherent power of the president” as commander in chief, Koh testifies. The memos raise profound questions about the legal ethics of everyone involved—Gonzales, Yoo, and others in the Justice Department and White House. “If a client asks a lawyer how to break the law and escape liability, the lawyer’s ethical duty is to say no,” Koh testifies. “A lawyer has no obligation to aid, support, or justify the commission of an illegal act.” [Senate Judiciary Committee, 1/7/2005 pdf file; Savage, 2007, pp. 211-212]

Entity Tags: Senate Judiciary Committee, US Department of Justice, Harold Koh, Alberto R. Gonzales, Bush administration (43), John C. Yoo, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

David Addington.David Addington. [Source: Richard A. Bloom / Corbis]David Addington, the chief counsel for Vice President Dick Cheney, is named Cheney’s chief of staff to replace Lewis “Scooter” Libby, who was convicted of perjury and obstruction of justice in the Valerie Plame Wilson case (see February 13, 2002). [National Journal, 10/30/2005; MSNBC, 11/4/2005] Addington is described by one White House official as “the most powerful man you never heard of.” A former Justice Department official says of Addington, “He seems to have his hand in everything, and he has these incredible powers, energy, reserves in an obsessive, zealot’s kind of way.” He is, according to former Solicitor General Theodore Olson, Cheney’s “eyes, ears, and voice.” [US News and World Report, 5/21/2006] Addington is a neoconservative ideologue committed to dramatically expanding the power of the presidency, and a powerful advocate of the “unitary executive” theory of presidential power. He has been with Cheney for years, ever since Cheney chose him to serve as the Pentagon’s chief counsel while Cheney was Defense Secretary under Ronald Reagan. During that time, Addington was an integral part of Cheney’s battle to keep the Iran-Contra scandal from exploding (see 1984). [Washington Post, 10/11/2004; National Journal, 10/30/2005; MSNBC, 11/4/2005; US News and World Report, 5/21/2006] According to Larry Wilkerson, the former chief of staff to former Secretary of State Colin Powell, documentary evidence shows that Cheney’s office, and Addington in particular, were responsible for giving at least tacit approval for US soldiers to abuse and torture prisoners in Iraq (see January 9, 2002). In an administration devoted to secrecy, Addington stands out in his commitment to keeping information away from the public. [Washington Post, 10/11/2004] Though Addington claims to have a lifelong love affair with the Constitution, his interpretation of it is somewhat unusual. One senior Congressional staffer says, “The joke around here is that Addington looks at the Constitution and sees only Article II, the power of the presidency.” [US News and World Report, 5/21/2006] Addington’s influence in the White House is pervasive. He scrutinizes every page of the federal budget, hunting for riders that might restrict the power of the president. He worked closely with Gonzales to oppose attempts by Congress to pry information from the executive branch, and constantly battles the State Department, whose internationalist philosophy is at odds with his and Cheney’s own beliefs. [Washington Post, 10/11/2004] Former Reagan Justice Department official Bruce Fein calls Addington the “intellectual brainchild” of overreaching legal assertions that “have resulted in actually weakening the presidency because of intransigence.” According to Fein, Addington and Cheney are doing far more than reclaiming executive authority, they are seeking to push it farther than it has ever gone under US constitutional authority. They have already been successful in removing executive restraints formerly in place under the War Powers Act, anti-impoundment legislation, the legislative veto and the independent counsel statute. “They’re in a time warp,” Fein says. “If you look at the facts, presidential powers have never been higher.” [Washington Post, 10/11/2004] “He thinks he’s on the side of the angels,” says a former Justice Department official. “And that’s what makes it so scary.” [US News and World Report, 5/21/2006]

Entity Tags: Saddam Hussein, US Department of State, Theodore (“Ted”) Olson, US Department of Justice, US Department of Defense, Ronald Reagan, Lewis (“Scooter”) Libby, National Security Council, Bruce Fein, Bradford Berenson, 9/11 Commission, Richard (“Dick”) Cheney, David S. Addington, John Bellinger, Jack Goldsmith, Lawrence Wilkerson, John C. Yoo, Valerie Plame Wilson

Timeline Tags: Civil Liberties, Niger Uranium and Plame Outing

John Yoo’s ‘The Powers of War and Peace.’John Yoo’s ‘The Powers of War and Peace.’ [Source: University of Maryland]Libertarian law professor Cass Sunstein reviews a recent book by former Bush legal adviser John Yoo, who authored several of the Bush administration’s most controversial legal opinions concerning terrorism and executive power (see September 21, 2001, September 25, 2001, September 25, 2001, October 4, 2001, October 23, 2001, October 23, 2001, November 2, 2001, November 6-10, 2001, November 15, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24, 2002, January 24-26, 2002, March 13, 2002, April 8, 2002, June 27, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and October 11, 2002). Yoo’s book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, is a compendium of his pre-9/11 academic writings that landed him his job at the Justice Department’s Office of Legal Counsel. Sunstein notes that Yoo, perhaps more than any other single legal scholar, has reshaped the government’s legal stance on any number of issues. He argued for the president’s unilateral ability to declare war without the approval of Congress, the use of “enhanced interrogation techniques” on suspected terrorists, the withdrawal of essential civil liberties and legal rights from suspected terrorists and enemy collaborators, the right of the administration to electronically eavesdrop on the American citizenry without judicial consent or oversight, the ability to ignore or withdraw from international treaties without congressional approval, and more besides. Sunstein writes: “[T]aken as a whole, the claims of the Bush administration may be properly regarded as an effort to create a distinctive set of constitutional understandings for the post-September 11 era. The White House is attempting to create a kind of 9/11 Constitution. A defining feature of these understandings is a strong commitment to inherent presidential authority over national security, including a belief that in crucial domains the president can act without congressional permission, and indeed cannot be checked by congressional prohibitions.” Yoo is a key figure in that effort. Sunstein calls his work interesting but completely one-sided, simply ignoring “the mountainous counter-evidence” against most of his constitutional claims. “Yoo’s reading would require us to ignore far too many statements by prominent figures in the founding generation,” Sunstein writes. “There are not many issues on which James Madison, Thomas Jefferson, John Marshall, Alexander Hamilton, George Washington, James Wilson, John Adams, and Pierce Butler can be said to agree. Were all of them wrong?” Sunstein concludes: “[W]ith respect to war, there is no reason for a 9/11 Constitution. The old one, read in the light of our traditions, will do just fine.” [New Republic, 1/9/2006; Savage, 2007, pp. 81-82]

Entity Tags: Bush administration (43), Office of Legal Counsel (DOJ), John C. Yoo, Cass Sunstein

Timeline Tags: Civil Liberties

John Yoo, a former Justice Department official, celebrates the passage of the Military Commissions Act (see October 17, 2006). Yoo writes that Congress has ordered “the courts, in effect, to get out of the war on terror.” The bill is not so much a victory for the presidency, Yoo writes, as it is a loss for the judiciary, a “stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world.” It supersedes the Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), which Yoo calls “an unprecedented attempt by the court to rewrite the law of war and intrude into war policy… [a] stunning power grab.” Now, he writes: “Congress and the president did not take the court’s power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court’s habeas powers in wartime because it disagreed with its decisions. The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.” Yoo had previously authored numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002). [Wall Street Journal, 10/19/2006]

Entity Tags: Military Commissions Act, John C. Yoo

Timeline Tags: Civil Liberties

Nieman Reports, a quarterly magazine about journalism, publishes an article by investigative journalist Craig Pyes describing how the US Army attempted to undermine a Los Angeles Times investigation looking into the March 2003 deaths of two Afghan detainees (see March 16, 2003). It is believed that members of a Special Forces detachment in Afghanistan murdered the two men, identified as Jamal Naseer and Wakil Mohammed, and then covered up the circumstances surrounding their deaths. An official investigation into the two deaths by the Army’s Criminal Investigation Command (CID) found insufficient probable cause to bring charges for either of the two deaths. As a result of the CID investigation, two soldiers were given noncriminal administrative letters of reprimand (see January 26, 2007) for “slapping” prisoners at the Gardez facility and for failing to report the death of Naseer. In his article, Pyes recounts the resistance he and his colleague Kevin Sack encountered from the military as they sought information about the two deaths. The military refused to disclose basic information about the circumstances surrounding the two deaths, including the two men’s identities, the circumstances of their detention, the charges against them, court papers, and investigative findings. The journalists also learned that soldiers had been told by their superiors that it was important that everyone be “on the same page in case there was an investigation.” During their investigation, they also discovered that “military examiners had made some significant errors, including their initial failure to identify the victims. They also grossly misidentified dates of crucial events and persistently failed to interview key people and locate supporting documents.” [Nieman Watchdog, 3/2/2007]

Entity Tags: Wakil Mohammed, United Nations Assistance Mission in Afghanistan, US Special Forces, Jamal Naseer, Los Angeles Times, Criminal Investigation Command

Timeline Tags: Torture of US Captives, War in Afghanistan

Former Deputy Attorney General James Comey delivers dramatic testimony before the Senate Judiciary Committee about the March 2004 attempts by then-White House counsel Alberto Gonzales and then-White House chief of staff Andrew Card to pressure a seriously ill John Ashcroft, then the attorney general, to certify the legality of the Bush/NSA domestic wiretapping program (see March 10-12, 2004, Early 2002). Comey testifies that even though he, who at the time has the full authority of the attorney general during Ashcroft’s illness, and Ashcroft both refused to authorize the program due to their belief that the program is illegal, President Bush will certify the program anyway. Only a threatened mass resignation by Ashcroft, Comey, FBI director Robert Mueller, and other senior officials will persuade Bush, weeks later, to make changes in the program that bring it somewhat closer to operating within the law. [Think Progress, 5/15/2007; Washington Post, 5/16/2007]
Bush Sent Gonzales, Card to Ashcroft's Hospital Room, Comey Believes - Comey says that while he cannot be certain, he believes Gonzales and Card went to Ashcroft’s hospital room on orders from President Bush: “I have some recollection that the call was from the president himself, but I don’t know that for sure,” he tells the committee. His major concern in heading off Gonzales and Card at the hospital, Comey testifies, is that, “given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that.” Comey says he was “stunned” by how forceful Ashcroft was in refusing to comply with Gonzales and Card’s directive to sign the reauthorization.
Gonzales a 'Loyal Bushie' - Committee members are openly contemptuous of Gonzales’s actions, and question his fitness to serve as attorney general. “He’s presided over a Justice Department where being a, quote, loyal Bushie seems to be more important than being a seasoned professional, where what the White House wants is more important than what the law requires or what prudence dictates,” says Charles Schumer (D-NY). Arlen Specter (R-PA) is hardly less critical. “It is the decision of Mr. Gonzales as to whether he stays or goes, but it is hard to see how the Department of Justice can function and perform its important duties with Mr. Gonzales remaining where he is,” Specter says. “And beyond Mr. Gonzales’s decision, it’s a matter for the president as to whether the president will retain the attorney general or not.” [New York Times, 5/15/2007]
Not a 'Team Player' - Interestingly, President Bush views Comey with disdain because Comey isn’t what Bush calls a “team player;” Bush earlier tagged Comey, who resigned his position in 2005 and who previously tangled with the White House over its embrace of torture for terrorist suspects, with the derisive nickname “Cuomo,” after the former Democratic governor of New York, Mario Cuomo, famous for vacillating over whether to run for the presidency in the 1980s. The White House denies the nickname. [Newsweek, 1/9/2006] Comey is not popular in the White House in part because of his 2003 appointment of special prosecutor Patrick Fitzgerald to investigate Vice President Dick Cheney’s chief of staff, Lewis “Scooter” Libby, for perjury connected to the outing of CIA agent Valerie Plame Wilson (see Shortly after February 13, 2002). And after the 9/11 attacks, Comey challenged Cheney’s assertions that the use of torture and other “war on terror” policies were legal (see January 9, 2002). Comey says he has been prepared to testify about the Ashcroft hospital visit for three years, but never did until now, because “Nobody ever asked.…I’ve never been in a forum where I was obligated to answer the question. Short of that, it was not something I was going to volunteer.” Card says that his actions at the hospital earned him bureaucratic punishment from Card. After Gonzales became attorney general, Ashcroft’s then-chief of staff, Kyle Sampson, told Comey that Gonzales’s “vision” was to merge the deputy’s office with Gonzales’s own office, stripping Comey of much of his autonomy and reducing him, in essence, to a staff member. Comey refused to cooperate. “You may want to try that with the next deputy attorney general,” Comey told Sampson. “But it’s not going to work with me.” [US News and World Report, 5/20/2007]

Entity Tags: Robert S. Mueller III, Valerie Plame Wilson, Richard (“Dick”) Cheney, Senate Judiciary Committee, D. Kyle Sampson, Patrick J. Fitzgerald, Alberto R. Gonzales, Andrew Card, John Ashcroft, James B. Comey Jr., George W. Bush

Timeline Tags: Civil Liberties

The Congressional Quarterly reports on a growing body of evidence that indicates US interrogators are using mind-altering drugs on prisoners suspected of terrorist ties. The evidence is not yet conclusive, but reporter Jeff Stein writes: “There can be little doubt now that the government has used drugs on terrorist suspects that are designed to weaken their resistance to interrogation. All that’s missing is the syringes and videotapes.”
Connection to Yoo Memo - The idea that the US might be using hallucinogenic or other drugs on detainees in Guantanamo and other US detention facilities was bolstered by the recent revelation of another “torture memo,” this one written in 2003 by then-Justice Department lawyer John Yoo (see March 14, 2003). Yoo wrote that US interrogators could use mind-altering drugs on terror suspects as long as the drugs did not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.” Yoo first rationalized the use of drugs on prisoners in earlier “torture memos” (see January 9, 2002 and August 1, 2002).
Criticism - Stephen Miles, a bioethicist and author of a recent book detailing medical complicity in US torture of suspected terrorists, notes: “The new Yoo memo, along with other White House legal memoranda, shows clearly that the policy foundation for the use of interrogational drugs was being laid. The recent memo on mood-altering drugs does not extend previous work on this area. The use of these drugs was anticipated and discussed in the memos of January and February 2002 by [Defense Department, Justice Department], and White House counsel using the same language and rationale. The executive branch memos laid a comprehensive and reiterated policy foundation for the use of interrogational drugs.” Jeffrey Kaye, a clinical psychologist who works with torture victims through Survivors International, says plainly: “Yes, I believe [drugs] have been used. I came across some evidence that they were using mind-altering drugs, to regress the prisoners, to ascertain if they were using deception techniques, to break them down.”
Varieties of Drugs and Placebos Being Used? - It is well known that US military personnel often use sedatives on shackled and hooded prisoners on “rendition” flights from Middle Eastern countries to Guantanamo. There is no hard evidence to support claims that US interrogators are using hallucinogenic drugs such as LSD on detainees. However, Michael Caruso, who represents suspected al-Qaeda operative Jose Padilla (see May 8, 2002), filed a motion last year asserting that his client “was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations.” Caruso had no proof to back up his claim.
KUBARK - Stein notes that a 1963 CIA interrogation manual, code-named KUBARK, advocated the use of placebos as well as real drugs on prisoners. And Michael Gelles, a psychologist with the Naval Criminal Investigative Institute who has spoken out against the abuse of prisoners at Guantanamo, says that he never saw anything related to drugs. “I never saw that raised as an issue,” he says. Hallucinogens such as LSD do not make subjects tell the truth. According to KUBARK, “Their function is to cause capitulation, to aid in the shift from resistance to cooperation.”
Winging It - In July 2003, the CIA, the RAND Corporation, and the American Psychological Association hosted a workshop that explored the question of using drugs to “affect apparent truth-telling behavior” (see June 17-18, 2003). After 9/11, top Bush administration officials pushed military commanders for quick intelligence but, according to a recent study, the interrogators unsure how to use harsher methodologies (see December 2006) and began “mak[ing] it up on the fly.”
Guantanamo - Guantanamo staff judge advocate Lieutenant Colonel Diane Beaver says that some of the interrogators drew inspiration from the popular TV drama 24 (see Fall 2006). Beaver makes no mention of drugs being used, but Ewe Jacobs, the director of Survivors International, says she may not have seen or heard about their use. “The Guantanamo camps were isolated from one another,” he says. What happened in one part of the facility may not have been known in other areas. Miles adds, “I suspect that most of the use of interrogational drugs was by CIA and Special Ops interrogators, and thus still remains classified.”
Credibility Issues - As with victims of the CIA’s MK-ULTRA program from the 1960s and 70s, when unwitting subjects were dosed with hallucinogenic drugs and their reactions catalogued and observed, the detainees who may have been forcibly given such drugs will likely not be believed by many. Absent hard evidence, many will consider the detainees either “looney,” in Stein’s words, or liars. Few believe that Padilla was drugged. And, Stein concludes, “Even fewer will believe the other prisoners, a number of whom are deranged from prolonged interrogation—if they ever get out.” [Congressional Quarterly, 4/4/2008]

Entity Tags: Jose Padilla, Ewe Jacobs, Diane E. Beaver, Central Intelligence Agency, Bush administration (43), American Psychological Association, Jeff Stein, John C. Yoo, Richard (“Dick”) Cheney, US Department of the Army, Jeffrey Kaye, Stephen Miles, RAND Corporation, Michael Caruso, Michael Gelles, Survivors International

Timeline Tags: Torture of US Captives

President Barack Obama, in the same sweeping set of executive orders that mandates the closure of the Guantanamo Bay detention facility and orders the closure of the CIA’s secret prisons (see January 22, 2009), orders that the US no longer torture prisoners. And in a broad repudiation of Bush administration policies and legal arguments, Obama’s order nullifies every single legal order and opinion on interrogations issued by any lawyer in the executive branch—including the Department of Justice—since September 11, 2001 (see Shortly After September 11, 2001, Late September 2001, October 23, 2001, Late October 2001, November 6-10, 2001, January 9, 2002, January 25, 2002, and April 2002 and After). “Key components of the secret structure developed under Bush are being swept away,” the Washington Post reports. Obama orders that all interrogations conducted by the CIA and other US officials strictly follow the procedures outlined in the US Army Field Manual. Retired Admiral Dennis Blair, Obama’s nominee to become the director of national intelligence, says that the government may revise the Field Manual to include more coercive interrogation techniques; a commission will be appointed to determine if the Field Manual is adequate. Currently the Field Manual limits interrogators to 19 approved techniques, bans torture, and prohibits harsh questioning techniques in favor of using psychological approaches. “I can say without exception or equivocation that the United States will not torture,” Obama tells a group of listeners at the State Department. “The message that we are sending the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism and we are going to do so vigilantly and we are going to do so effectively and we are going to do so in a manner that is consistent with our values and our ideals,” he adds. The US will now “observe core standards of conduct, not just when it’s easy, but also when it’s hard.” [Agence France-Presse, 1/22/2009; Los Angeles Times, 1/23/2009; Washington Post, 1/23/2009] Tom Malinowski of Human Rights Watch says that he is certain Obama will not secretly authorize torture. Malinowski says that while Obama might oversee some changes in the Field Manual, he says that Obama will not renege on his promise that detainees would not be tortured or treated inhumanely. [Financial Times, 1/22/2009]

Entity Tags: Human Rights Watch, US Department of Justice, Central Intelligence Agency, Barack Obama, Tom Malinowski, Dennis C. Blair

Timeline Tags: Torture of US Captives, Civil Liberties

Former Attorney General Alberto Gonzales tells an NPR reporter that he never allowed the Justice Department (DOJ) to become politicized, and that he believes the historical judgment of his tenure in the department will be favorable. He acknowledges making some errors, including failing to properly oversee the DOJ’s push to fire nine US attorneys in 2008, a process many believe was orchestrated by the White House with the involvement of Gonzales and then-White House political guru Karl Rove.
Failure to Engage - “No question, I should have been more engaged in that process,” he says, but adds that he is being held accountable for decisions made by his subordinates. “I deeply regret some of the decisions made by my staff,” he says, referring to his former deputy Paul McNulty, who resigned over the controversy after telling a Senate committee that the attorney firings were performance-related and not politically motivated. Gonzales says his then-chief of staff, Kyle Sampson, was primarily responsible for the US attorney review process and for working with McNulty. “If Paul McNulty makes a recommendation to me—if a recommendation includes his views—I would feel quite comfortable that those would be good recommendations coming to me” about the qualifications of the US attorneys under question, Gonzales says. He adds that he has “seen no evidence” that Rove or anyone at the White House tried to use the US attorneys to politicize the work at the DOJ. A review by the DOJ’s Inspector General found that the firing policy was fundamentally flawed, and that Gonzales was disengaged and had failed to properly supervise the review process.
Claims He Was Unfairly Targeted by 'Mean-Spirited' Washington Insiders - Gonzales says he has been unfairly held responsible for many controversial Bush administration policies, including its refusal to abide by the Geneva Conventions (see Late September 2001, January 9, 2002, January 18-25, 2002, January 25, 2002, August 1, 2002, November 11, 2004, and January 17, 2007) and its illegal eavesdropping on US citizens (see Early 2004, March 9, 2004, December 19, 2005, Early 2006, and February 15, 2006), because of his close personal relationship with former President Bush. Washington, he says, is a “difficult town, a mean-spirited town.” He continues: “Sometimes people identify someone to target. That’s what happened to me. I’m not whining. It comes with the job.”
Visiting Ashcroft at the Hospital - In 2004, Gonzales, then the White House counsel, and White House chief of staff Andrew Card raced to the bedside of hospitalized Attorney General John Ashcroft to persuade, or perhaps coerce, Ashcroft to sign off on a secret government surveillance program (see March 10-12, 2004). The intervention was blocked by Deputy Attorney General James Comey (see March 12-Mid-2004). Gonzales says he has no regrets about the incident: “Neither Andy nor I would have gone there to take advantage of somebody who was sick. We were sent there on behalf of the president of the United States.” As for threats by Justice Department officials to resign en masse over the hospital visit (see Late March, 2004), Gonzales merely says, “Lawyers often disagree about important legal issues.”
Warning about Plain Speaking - Gonzales says Obama’s attorney general nominee, Eric Holder, should refrain from making such statements as Holder made last week when he testified that waterboarding is torture. “One needs to be careful in making a blanket pronouncement like that,” Gonzales says, adding that such a statement might affect the “morale and dedication” of intelligence officials and lawyers who are attempting to make cases against terrorism suspects. [National Public Radio, 1/26/2009]

Entity Tags: US Department of Justice, Eric Holder, Bush administration (43), Andrew Card, Alberto R. Gonzales, Geneva Conventions, George W. Bush, James B. Comey Jr., Karl C. Rove, Paul J. McNulty, D. Kyle Sampson

Timeline Tags: Civil Liberties

John Yoo, the former Bush administration legal adviser who authored numerous opinions on the legality of torture, detentions without legal representation, and warrantless wiretapping (see November 6-10, 2001, December 28, 2001, January 9, 2002, August 1, 2002, and August 1, 2002, among others), writes an op-ed for the Wall Street Journal opposing the Obama administration’s intent to close the Guantanamo Bay detention facility (see January 20, 2009 and January 22, 2009)) and restrict the CIA’s ability to torture detainees (see January 22, 2009). Yoo, now a law professor and a member of the neoconservative American Enterprise Institute, writes that while President Obama’s decision “will please his base” and ease the objections to the Bush “imperial presidency,” it will “also seriously handicap our intelligence agencies from preventing future terrorist attacks.” Yoo writes that the Obama decisions mark a return “to the failed law enforcement approach to fighting terrorism that prevailed before Sept. 11, 2001.” Yoo recommends that Obama stay with what he calls “the Bush system” of handling terror suspects. Yoo fails to note that the US law enforcement system prevented, among others, the “millennium bombing” plot (see December 14, 1999), the plot to bomb New York City’s Lincoln and Holland Tunnels (see June 24, 1993), and Operation Bojinka (see January 6, 1995).
Obama Needs to be Able to Torture Prisoners Just as Bush Did, Yoo Declares - And by eschewing torture, Obama is giving up any chance on forcing information from “the most valuable sources of intelligence on al-Qaeda” currently in American custody. The Bush administration policies prevented subsequent terrorist attacks on the US, Yoo contends, and Obama will need the same widespread latitude to interrogate and torture prisoners that Bush employed: “What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al-Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)” It is noteworthy that Yoo refused to confirm that Bush ordered waterboarding of suspects during his previous Congressional hearings (see June 26, 2008).
Interrogations Must be 'Polite' - According to Yoo, in forcing the CIA and other US interrogators to follow the procedures outlined in the Army Field Manual, they can no longer use “coercive techniques, threats and promises, and the good-cop bad-cop routines used in police stations throughout America.… His new order amounts to requiring—on penalty of prosecution—that CIA interrogators be polite. Coercive measures are unwisely banned with no exceptions, regardless of the danger confronting the country.” [Wall Street Journal, 1/29/2009] Yoo is incorrect in this assertion. The Army Field Manual explicitly countenances many of the “coercive techniques, threats and promises, and the good-cop bad-cop routines” Yoo says it bans. Further, the Field Manual says nothing about requiring interrogators to be “polite.” [Army, 9/2006] And actual field interrogators such as the Army’s Matthew Alexander have repeatedly said that torturing prisoners is ineffective and counterproductive, while building relationships and treating prisoners with dignity during interrogations produces usable, reliable intelligence (see November 30, 2008).
Shutting Down Military Commissions - Obama’s order to stay all military commission trials and to review the case of “enemy combatant” Ali Saleh al-Marri (see June 23, 2003) is also mistaken, Yoo writes. Yoo fears that Obama will shut down the military commissions in their entirety and instead transfer detainees charged with terrorist acts into the US civilian court system. He also objects to Obama’s apparent intent to declare terrorists to be prisoners of war under the Geneva Conventions, instead of following the Bush precedent of classifying terrorists “like pirates, illegal combatants who do not fight on behalf of a nation and refuse to obey the laws of war.” To allow terror suspects to have rights under Geneva and the US legal system, Yoo asserts, will stop any possibility of obtaining information from those suspects. Instead, those suspects will begin using the legal system to their own advantage—refusing to talk, insisting on legal representation and speedy trials instead of cooperating with their interrogators. “Our soldiers and agents in the field will have to run more risks as they must secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court,” Yoo writes. [Wall Street Journal, 1/29/2009] In reality, the Supreme Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), as well as the Detainee Treatment Act (see December 15, 2005) and the Military Commissions Act (see October 17, 2006), all mandate that detainees must be handled according to the Geneva Conventions.
Risk to Americans - Another effect of transferring detainees into the civilian justice system, Yoo claims, is to allow “our enemies to obtain intelligence on us.” Defense lawyers will insist on revealing US intelligence—information and methods—in open court, and will no doubt force prosecutors to accept plea bargains “rather than risk disclosure of intelligence secrets.”
Obama 'Open[ed] the Door to Further Terrorist Acts on US Soil' - Obama said in his inaugural speech that the US must “reject as false the choice between our safety and our ideals.” Yoo calls that statement “naive,” and writes, “That high-flying rhetoric means that we must give al-Qaeda—a hardened enemy committed to our destruction—the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats.” By making his choices, Yoo writes, “Mr. Obama may have opened the door to further terrorist acts on US soil by shattering some of the nation’s most critical defenses.” [Wall Street Journal, 1/29/2009]

Entity Tags: John C. Yoo, Barack Obama, American Enterprise Institute, Wall Street Journal, Obama administration

Timeline Tags: Torture of US Captives, Civil Liberties

Retired Major General Anthony Taguba, who headed an intensive military investigation into the abuses at Abu Ghraib prison (see March 9, 2004), is one of the most prominent supporters of the call to investigate the Bush administration’s interrogation, detention, and torture policies. Taguba joins 18 human rights organizations, former State Department officials, former law enforcement officers, and former military leaders in asking President Obama to create a non-partisan commission to investigate those abuses. Even though prosecuting former Bush officials might be difficult, Taguba says, a commission would provide some measure of accountability for the practices Taguba calls “misguided,” “illegal,” “despicable and questionable.” Taguba wants the commission to study the Bush administration’s claims that torture provides good intelligence, which he disputes. He particularly wants the commission to investigate administration officials’ claims that the administration’s policies were legal. Taguba says he supports “a structured commission with some form of authority with clear objectives and a follow-on action plan. I’m not looking for anything that is prosecutorial in nature, unless a suspected violation of relevant laws occurred, which should be referred to the Department of Justice.… In my opinion, our military prosecuted those who were involved in torture or unlawful interrogation. And I think our military has come to terms with that. We are an institution that prides itself on taking corrective action immediately, admitting to it, and holding ourselves accountable. And we have done that. But I am not so sure that our civilian authorities in government have done that for themselves.” Speaking about the Bush Justice Department’s findings that torture and indefinite detentions are legal (see Late September 2001, November 11-13, 2001, December 28, 2001, January 9, 2002, August 1, 2002, and August 1, 2002), Taguba says: “This notion that a lot of constitutional legal experts—lawyers with great intellect, well educated—came up with such despicable and questionable legal findings that were contrary to the definition of defending the Constitution? And then they framed this as if the executive branch had the authority to extend beyond the constitution to establish a policy of torture and illegal detention?… Some of those that were tortured were innocent. How do we come to terms with those that were cruelly mistreated and were innocent, never charged, were illegally detained, and never compensated for their suffering? This is not a political issue, but a moral and ethical dilemma which has far-reaching implications.” [Salon, 2/21/2009]

Entity Tags: Antonio M. Taguba

Timeline Tags: Torture of US Captives

The Justice Department’s Office of Professional Responsibility (OPR) begins an investigation of the department’s lawyers who signed off on the Bush administration’s torture policies, in particular John Yoo (see Late September 2001 and January 9, 2002), Jay Bybee (see August 1, 2002 and August 1, 2002), and Steven Bradbury (see May 10, 2005, June 23, 2005 and July 2007). The OPR investigation will determine whether these lawyers shirked their professional responsibilities in deciding that particular torture techniques were, in fact, legal; if that conclusion is reached, then prosecutors could make the case that the lawyers knowingly broke the law. Today, the press learns that the OPR has obtained archived e-mail messages from the time when the memorandums were being drafted. Senator Russ Feingold (D-WI) has urged President Obama “not to rule out prosecutions of those who implemented the program” until the OPR report, along with a long-awaited report by the Senate Intelligence Committee (see April 21, 2009), become available. Former Bush White House lawyer Bradford Berenson says he has seen a surge in “anxiety and anger” among his former colleagues, and says they should not be investigated. [New York Times, 4/22/2009] The Justice Department will refuse to bring sanctions against Yoo, Bybee, and Bradbury (see February 2010).

Entity Tags: Office of Professional Responsibility, Bradford Berenson, Barack Obama, Bush administration (43), John C. Yoo, Russell D. Feingold, Senate Intelligence Committee, US Department of Justice, Steven Bradbury, Jay S. Bybee

Timeline Tags: Torture of US Captives

Former Justice Department lawyer John Yoo, who authored numerous legally untenable memos authorizing torture and the preeminence of the executive branch (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, November 6-10, 2001, and January 9, 2002), writes that in the nomination of Sonia Sotomayor to the Supreme Court (see May 26, 2009), “empathy has won out over excellence in the White House.” Yoo, who calls the Justice she is replacing, David Souter, an equally “weak force on the high court,” writes that President Obama “chose a judge distinguished from the other members of [his list of potential nominees] only by her race. Obama may say he wants to put someone on the Court with a rags-to-riches background, but locking in the political support of Hispanics must sit higher in his priorities.” Sotomayor’s record is “undistinguished,” Yoo writes, and “will not bring to the table the firepower that many liberal academics are asking for.” She will not be the intellectual and legal equal of conservatives Antonin Scalia and Clarence Thomas, he says. “Liberals have missed their chance to put on the Court an intellectual leader who will bring about a progressive revolution in the law.” Conservatives should challenge her nomination, Yoo writes, because the Court is “a place where cases are decided by a faithful application of the Constitution, not personal politics, backgrounds, and feelings. Republican senators will have to conduct thorough questioning in the confirmation hearings to make sure that she will not be a results-oriented voter, voting her emotions and politics rather than the law.” [American Enterprise Institute, 5/26/2009]

Entity Tags: US Supreme Court, Barack Obama, David Souter, Sonia Sotomayor, John C. Yoo

Timeline Tags: Domestic Propaganda

The US Department of Justice’s Office of Professional Responsibility refuses to refer two former Bush administration officials to authorities for criminal or civil charges regarding their authorizations of the torture of suspected terrorists (see Before April 22, 2009). John C. Yoo and Jay S. Bybee, two senior officials in the DOJ’s Office of Legal Counsel, provided the legal groundwork that allowed American interrogators to use sleep deprivation, waterboarding, and other torture methods against terror suspects (see Late September 2001, January 9, 2002, and August 1, 2002). The report finds that Yoo and Bybee, along with former OLC head Steven Bradbury, exhibited “poor judgment” in their actions. The OPR refuses to make the report’s conclusions public. It is known that senior Justice Department official David Margolis made the decision not to refer Yoo and Bybee for legal sanctions. [Office of Professional Responsibility, US Department of Justice, 7/29/2009 pdf file; Washington Post, 1/31/2010]

Entity Tags: John C. Yoo, Bush administration (43), David Margolis, Jay S. Bybee, Office of Professional Responsibility, US Department of Justice, Steven Bradbury, Office of Legal Counsel (DOJ)

Timeline Tags: Torture of US Captives

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