ACLU Uncovers a Third Bradbury Torture Memo from 2005

Start your day with TPM.
Sign up for the Morning Memo newsletter

Just in time for Michael Mukasey’s impending Senate vote to become attorney general, the ACLU has discovered that one of his would-be underlings, Steven Bradbury of the Office of Legal Counsel, penned three memoranda in 2005 on the use of “enhanced interrogation techniques” by the CIA. The discovery raises the possibility that the Justice Department has penned other as-yet-unknown torture memos since 2005.

Two of those memoranda were first revealed by The New York Times in early October. That story struck the ACLU as outrageous — not just on the substantive merits, but because on January 31, 2005, the ACLU filed a Freedom of Information Act request with the OLC and other federal agencies demanding documentation on the treatment of detainees. Yet even though the ACLU had received documents from the government dated after the OLC memos described in the Times, it still had to read about material clearly relevant to its FOIA request in the paper.

ACLU attorney Jameel Jaffer says Justice Department officials told him that the date the organization filed its FOIA request represented a cut-off date for material — a bizarre argument, given that it’s already received documentation dating after the January 31, 2005 filing — and as a result, Jaffer asked Judge Alvin K. Hellerstein of the Southern District Court of New York to adjudicate late last month. And in response to the ACLU, the government revealed this piece of tantalizing information:

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

“Now we have two new pieces of information,” Jaffer says. “First, there are three memos, not two; and second, they were all issued in May.”

If the ACLU can take any comfort in this case, they’re not the only one getting stonewalled by the Bush administration. The Senate Judiciary Committee has been seeking information on the Justice Department’s legal advice on interrogation for longer than we can remember. And sometimes the obstruction reaches unimagined vistas of absurdity. Just last week, the White House agreed to release four interrogation documents to the committee — but as Paul reported, three of those documents were already public.

It’s not clear what’s in the newly-discovered memorandum; nor what’s specifically described in any of the other two. And the government is sticking to its line about not needing to turn over documents to what the administration thinks is an unwelcome witch hunt. For his part, Jaffer says he doesn’t know anything about the memos beyond what he read in the Times. But on November 13, Jaffer and the ACLU will go back before Hellerstein and plead their case for disclosure. “That’s the end game,” Jaffer says. “Get the Justice Department to explain what they think can and can’t be released and then take our option to challenge that in court.”

Of course, the sudden appearance of the 2005 Bradbury-supervised OLC memos raises the possibility that the administration is still hiding other torture memos. “We’ve always had that suspicion,” Jaffer says, explaining that the ACLU knows of “dozens” of torture documents yet to be released to the ACLU FOIA. Those, he says, include photos of prisoners “not from Abu Ghraib” subjected to brutal interrogations, as well as documents relevant to the CIA inspector-general inquiry into prisoner abuse by the CIA at Iraq and Afghanistan. (That inquiry was one of several that led General Mike Hayden, director of the CIA, to open an inquiry on the inspector general.)

So is the government acting in good faith? “I don’t know. I just don’t know,” Jaffer says. “I do know that the government should have ID’d and processed the documents and that’s why we’re asking the judge to act.”

Latest Muckraker
Comments
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Editor at Large:
General Counsel:
Publisher:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: