War on Terror Flashback: Bush's Lawyer Yoo "Civilians Can Be Massacred"

From Michael Isikoff and Mark Hosenball at Newsweek:

The chief author of the Bush administration's "torture memo" told Justice Department investigators that the president's war-making authority was so broad that he had the constitutional power to order a village to be "massacred," according to a report by released Friday night by the Office of Professional Responsibility.

The views of former Justice lawyer John Yoo were deemed to be so extreme and out of step with legal precedents that they prompted the Justice Department's internal watchdog office to conclude last year that he committed "intentional professional misconduct" when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects.


The report by OPR concludes that Yoo, now a Berkeley law professor, and his boss at the time, Jay Bybee, now a federal judge, should be referred to their state bar associations for possible disciplinary proceedings. But, as first reported by NEWSWEEK, another senior department lawyer, David Margolis, reviewed the report and last month overruled its findings on the grounds that there was no clear and "unambiguous" standard by which OPR was judging the lawyers. Instead, Margolis, who was the final decision-maker in the inquiry, found that they were guilty of only "poor judgment."

The report, more than four years in the making, is filled with new details into how a small group of lawyers at the Justice Department, the CIA, and the White House crafted the legal arguments that gave the green light to some of the most controversial tactics in the Bush administration's war on terror. They also describe how Bush administration officials were so worried about the prospect that CIA officers might be criminally prosecuted for torture that one senior official—Attorney General John Ashcroft—even suggested that President Bush issue "advance pardons" for those engaging in waterboarding, a proposal that he was quickly told was not possible.

At the core of the legal arguments were the views of Yoo, strongly backed by David Addington, Vice President Dick Cheney's legal counsel, that the president's wartime powers were essentially unlimited and included the authority to override laws passed by Congress, such as a statute banning the use of torture. Pressed on his views in an interview with OPR investigators, Yoo was asked:

"What about ordering a village of resistants to be massacred? ... Is that a power that the president could legally—"

"Yeah," Yoo replied, according to a partial transcript included in the report. "Although, let me say this: So, certainly, that would fall within the commander-in-chief's power over tactical decisions."

"To order a village of civilians to be [exterminated]?" the OPR investigator asked again.

"Sure," said Yoo.

Yoo is depicted as the driving force behind an Aug. 1, 2002, Justice Department memo that narrowly defined torture and then added sections concluding that, in the end, it essentially didn't matter what the fine print of the congressionally passed law said: The president's authority superseded the law and CIA officers who might later be accused of torture could also argue that were acting in "self defense" in order to save American lives.

The original torture memo was prompted by concerns by John Rizzo, the CIA's general counsel, that the agency's officers might be criminally prosecuted if they proceeded with waterboarding and other rough tactics in their interrogation of Abu Zubaydah, an allegedly high-level Al Qaeda-linked operative who had been captured in Pakistan and in the spring of 2002 was transferred to a CIA "black site" prison in Thailand. Rizzo wanted the Justice Department to provide a blanket letter declining criminal prosecution, essentially providing immunity for any action engaged in by CIA officers, a request that Michael Chertoff, then chief of the Justice Department's criminal division, refused to provide. It was at that point that Yoo began crafting his opinion, the contents of which he actively reviewed with senior officials at the White House. "Let's plan on going over [to the White House] at 3:30 to see some other folks about the bad things opinion," he wrote in a July 12, 2002, e-mail quoted in the OPR report.

The report describes two meetings at the White House with then-chief counsel Alberto Gonzales and "possibly Addington." (Addington refused to talk to the OPR investigators but testified before Congress that he did in fact have at least one meeting with Yoo in the summer of 2002 to discuss the contents of the torture opinion.) After the second meeting, on July 16, 2002, Yoo began writing new sections of his memo that included his controversial views on the president's powers as commander in chief. When one of his associates, Patrick Philbin, questioned the inclusion of that section and suggested it be removed, Yoo replied, "They want it in there," according to an account given by Philbin to OPR investigators. Philbin said he didn't know who the "they" was but assumed it was whoever it was that requested the opinion (technically, that was the CIA, although, as the report makes clear, the White House was also pressing for it).

Yoo provided extensive comments to OPR defending his views of the president's war-making authority and disputing OPR's take that he slanted them to accommodate the White House. He did not immediately respond to NEWSWEEK'S request for comment Friday night.

Photos of the Decade: 2000

Palestinians attempt to escape tear gas fired by Israeli soldiers,
Gaza, 20 October 2000 (Reihard Krause/Reuters)

EA on the Road

I'll be in Manchester for the weekend, so it will be limited service until Monday morning. EA staff will be holding the fort, and as usual, we welcome your information and comments.

We will have treats for you through the weekend, including our Photos of the Decade and a  War on Terror Flashback.

The Latest from Iran (20 February): Questions

1730 GMT: Political Prisoner Update. Lawyer Massoud Aghaee was freed last night on bail. (http://www.ilna.ir/newsText.aspx?ID=109018)

1710 GMT: The Iranian Parliament has launched its 4th enquiry into the Kahrizak Prison abuses. (http://en.irangreenvoice.com/article/2010/feb/20/1244)

1655 GMT: Economic Projections. Key member of Parliament Ahmad Tavakoli has warned of possible zero growth or contraction in the economy in 2010-11. (http://www.peykeiran.com/Content.aspx?ID=13758)

1645 GMT: Grand Ayatollah Makarem-Shirazi has declared that officials should serve the people and that if the people do not appear in public anymore, there will be great difficulties. (http://www.ilna.ir/newsText.aspx?ID=109009)

1640 GMT: Conservative Watch. Mohsen Rezaei, Presidential candidate and Secretary of the Expediency Coucil, has called on the Council to "apply corrections" to electoral laws. (http://www.ilna.ir/newsText.aspx?ID=109015)

1630 GMT: Rafsanjani Watch. Hashemi Rafsanjani, the head of the Expediency Council, has declared at a Council meetint that "exclusion, elimination, and insulting" of figures in the Iranian system is a poison to domestic affairs and should be stopped.

Rafsanjani, reaffirming his position, declared that 22 Bahman invited Iranians to unity, following the Supreme Leader.
(http://www.ilna.ir/newsText.aspx?ID=109080)

1620 GMT: Afternoon Economy Watch. Bus drivers have gathered in front of the Social Security building in Tehran to protest against working conditions. (http://www.peykeiran.com/Content.aspx?ID=13750)

Iranian Labor News Agency warns that factories in many industrial sectors face closure. (http://www.ilna.ir/fullStory.aspx?ID=109010)

At least 1500 jobs have been lost in recent shutdowns. (http://en.irangreenvoice.com/article/2010/feb/19/1237)

Alireza Mahjoub, the head of a workers' syndicate, has said the promise of 50 percent increase in oil prices in next year's budget is "bizarre and inaccurate". (http://www.ilna.ir/fullStory.aspx?ID=109089)

1120 GMT: This Month's Twitter-Bash. This is almost as predictable as British weather: every few weeks, someone in the "thinking" press patches together faulty assumptions, a mis-understanding of social media, an Iran anecdote, and an "analyst" to claim that he/she has discovered: Twitter Had Nothing to Do With Post-Elections Events in Iran Whatsoever.

This month's 15-second fame of Twitter-bashing is enjoyed by Mary Fitzgerald of The Irish Times. She is not as obnoxious or arrogant as Will Heaven, but the piece plumbs the same shallow waters of "analysis" that does no justice to social media or, more importantly, to those in Iran. (http://www.irishtimes.com/newspaper/weekend/2010/0220/1224264860222.html)

1045 GMT: The Flag Flap (cont.). Well, I guess the issue of the magically changing colour of the Iranian flag --- from red/white/green to red/white/blue --- isn't just a joke any longer.

At least not for the President's office: it has issued a statement that "light reflection twisted the colour" of the flag at Ahmadinejad's press conference this week. (http://bit.ly/crcDMW)

0905 GMT: Moscow's Two-Faced Missiles. Russia, meanwhile, plays its own game with Iran. Having given Israel one message by holding up immediate delivery of S-300 missiles to Tehran, Moscow balanced with reassurance to Iran on Friday. Press TV quotes Deputy Foreign Minister Sergei Ryabkov, “There is a contract to supply these systems to Iran, and we will fulfill it … Delays (with deliveries) are linked to technical problems with adjusting these systems."

NEW Iran: “It’s All Over” for the Green Movement?

Iran & the “Non-Bomb”: The Real Story on Tehran’s Nuclear Programme

Iran Book Update: No More Good Reads in Tehran

Iran: Are The Banks Failing?

The Latest from Iran (19 February): Finding the Real Stories

0900 GMT: McClatchy News Service gets inside information on nuclear developments:

Iran has just sent a letter to the U.N.'s nuclear watchdog, the International Atomic Energy Agency, repeating its request for fuel to run a research reactor in Tehran that produces nuclear isotopes for medical purposes, according to U.S. and European officials.

They are readi
ng the letter as Iran's latest, and perhaps final, rejection of an offer the United States and five other countries made last October to provide the fuel by taking low-enriched uranium out of Iran and enriching it for use in the research reactor.....

"We understand that Iran has recently sent a letter to the IAEA that simply repeats its request from last year for assistance to acquire fuel - a request the IAEA has responded appropriately to with its offer last October," National Security Council spokesman Michael Hammer said.

"We see nothing new, and it would appear to reiterate Iran's rejection of the IAEA's proposal. Coupled with the IAEA's latest report on Iran's nuclear program, this reinforces why our concerns about Iran's nuclear intentions are deepening."

In other words, diplomatic stalemate. Tehran will continue to put forth its request for uranium through purchase or a swap inside Iran, while "the West" will insist on a swap in a third country. This could drag on for some time: both sides are getting public-relations value out of their positions.

0758 GMT: Cheeky Challenge of the Day. At the risk of reviving our own whimsical story of the changing colours of the Iranian flag, we read this morning:

A reformist member of Iranian Parliament, Mohammad Mahdi Shahriari said that if the replacement of color green with blue in Iranian national flag at the recent state ceremonies attended by Mahmoud Ahmadinejad was deliberate, the president should answer for the change.

Speaking to Iranian Labor News Agency (ILNA) Shahriari, a member of national security and foreign policy commission of the Parliament (Majlis) added: "Such alteration is subject to questioning and giving notice to its perpetrators because it's against the constitution of Islamic Republic of Iran."

And where did we encounter this story? In some pernicious outlet of the Green Movement, spreading disinformation and trouble?

No. The recycling of the ILNA story comes from the pro-Larijani Khabar Online.

0755 GMT: The biggest question, however, is not over Tehran's nuclear intentions but over the state of the Green Movement. In The Washington Post, Thomas Erdbrink posts a devastating article which claims, from interviews inside Iran, that the opposition is crippled, if not over. We've offered a response.

0730 GMT: A Saturday morning which starts with questions and diversions. The "Western" news agenda is still dominated by the nuclear issue, but there are breaks in the narrative of an inevitable Iran march to the bomb. The Washington Post, a long-time bell-ringer of the Iranian threat, has this paragraph in its editorial, "Clamping Down on Iran's Nuclear Ambitions":

The number of working centrifuges at the Natanz enrichment plant is declining, though the overall output is still increasing. A recent study by the Institute for Science and International Security (ISIS) showed that more than half of the Natanz plant's 8,700 centrifuges were not working in November; the new IAEA report records a further decline. Iran's enrichment of its stockpile is also proceeding at a snail's pace.

On the other side, the Supreme Leader's rhetoric, as he celebrated the commissioning of Iran's first domestically-made destroyer, deserves a bit of attention: "Our religious beliefs and principles prohibit such weapons as they are the symbol of destruction of generations. And for this reason we do not believe in weapons and atomic bombs and do not seek them."

While this could be read as a boiler-plate denial --- why give the game away if Tehran was pushing for a military programme? --- it may also be a signal to the "West", especially the US Government, that Iran still wants "engagement" through nuclear talks. (It should not be forgotten that President Obama made at least two direct appeals in letters to Ayatollah Khamenei.)

Inside Iran, it was a quieter Friday, but ripples of confrontation continue. The Kahrizak Prison scandal resurfaced as member of Parliament Parviz Sorouri said that the cause of the death of Ramin Aqazadeh Qahremani is not yet known. Three protesters are already confirmed to have died from abuse in Kahrizak. detention center.

Iran: "It's All Over" for the Green Movement?

It is one of the most striking articles to come out of Iran in recent weeks. A journalist for a US newspaper, who has stayed behind when his colleagues have left or been expelled, sits in a kitchen with four Iranian activists:

The opposition supporters nervously smoked cigarettes in the kitchen as loud music blared from the empty living room. A student, a businessman, a writer and an artist had planned a victory party but instead were mourning their defeat.

"It's all over," said the student, a young woman in a sleek black dress. "Our only option is to leave the country."

That is the opening of Thomas Erdbrink's atmosphere piece in The Washington Post this morning, and the bleakness is unrelenting:

"It was impossible to join up with other protesters," the student at the party said as she tried to reconstruct what went wrong. "There were just too many security forces."

She took a puff from her 10th cigarette that evening. "We were all supposed to meet up at the main square where Ahmadinejad would speak. There, we would all bring out green ribbons, to show how many we were," she said.

Instead, she found small pockets of protesters in side alleys, not knowing where to go or what to do. "We ended up with a couple thousand people running from the security forces," she said. "Our movement needs new tactics, but I have no idea what we should do."

After (or before?) the encounter in the kitchen, there are the thoughts of the Iranian blogger:

"I hope they can come up with new strategies, but I have no idea what those should be," said an influential blogger who is a member of an unofficial opposition think tank made up of Web activists. He suggested turning the first anniversary of the disputed June 12 presidential election into a day of protest.

"But I guess the government would just repeat what they do normally: declare each protest illegal and flood the streets with security forces," he said.

"In the end, the street is the only place where we can show how many people we are, but few people are ready to go to prison or get hurt," he said.

During recent demonstrations, he recalled, his friends would call him from their homes and offices while he was running from the police.

"If they are not ready to sacrifice anything, why should I be?" he asked. "My personal strategy out of this mess is to apply for a visa for Canada."

After the inclusion of former journalist Abbas Abdi, "There are moments that one person should say: This is how we will do this, whether you like it or not", Erdbrink returns to the gloom of the kitchen:

At the party, there was consensus on one issue. "Just because our protest failed, that doesn't mean we have lost our anger," the student said. "We have a very simple demand: freedom. But I don't see how we can get it."

So that's that, then? With The Post headline blaring, "Iranian opposition demoralized after failed protests at revolution's anniversary", has the white flag been unfurled?

Hmm....

Erdbrink is a very good journalist, and I don't it is possible to overestimate his tenacity in trying to report from Iran when most foreign reporters have deparated the country. That tribute, however, should not stand in the way of critiquing an article which quickly jumps from being an interesting snapshot to posting a once-and-for-all declaration.

A useful start might be another look at that opening paragraph at the failed "victory party". That indicates that Erdbrink's kitchen interview took place on 22 Bahman (11 February).

That was, indeed, a depressing day for many in the Iranian opposition. But I don't think it is a wild claim to suggest that the mood might not be permanent and/or fatal to the movement. In the following nine days, there have been re-assessments and renewed declarations. There has been not only the signal of the meeting between Mir Hossein Mousavi and Mehdi Karroubi but also statements from other reformist groups and activist organisations.

Of course, it would be a jump from analysis to speculation to argue that these numerous but often scattered signs mean that the opposition has regained the momentum of Ashura (27 December). For Erdbrink, however,
all of this can be set aside on the basis of his four depressed partiers, one blogger, and one "political analyst": "The government's strategy might eventually backfire, but for the time being, it has served to justify authorities' dismissal of the opposition as a meaningless band of foreign-backed counterrevolutionary rioters."

Reporting, especially first-hand reporting, is valuable. Sweeping predictions are dangerous. Erdbrink's article is likely to race around the Internet and discussion boards today as the definition of "defeat", but another nine days from now, its declarations will likely be another footnote to this ongoing conflict.

Marathon, not a sprint.