James Comey & OLC Torture Documents: A Chronology
Katherine Hawkins, Investigator, Task Force on Detainee Treatment

President Obama’s expected nomination of James Comey for FBI director has generated some controversy in the human rights/civil liberties community. Comey has at once been credited for preventing the reauthorization of a secret National Security Agency program, and criticized for signing off on “enhanced interrogation techniques,” including waterboarding, that were used to torture detainees.

Although TCP doesn’t take a position for or against the confirmation of a particular nominee, Comey’s appointment raises important questions. The report of TCP’s Task Force on Detainee Treatment discusses Comey’s role in authorizing torture briefly in chapter 4, starting on page 147. But that was not our focus, and it’s worth looking back at the original documents & the chronology.

  • The last officially acknowledged instance of waterboarding by a CIA detainee was Khalid Sheikh Mohammed, who was waterboarded 183 times in March 2003.
  • Comey was confirmed as Deputy Attorney General in December 2003.
  • On May 27, 2004, Jack Goldsmith wrote to CIA General Counsel Scott Muller about the CIA Inspector General’s report on the agency’s “enhanced interrogation” program. Goldsmith “strongly recommended” that the CIA suspend the use of waterboarding until OLC could examine its use more thoroughly. Goldsmith did not recommend suspension of any of the other nine “enhanced techniques” that OLC authorized the CIA to use on August 1, 2002.
  • According to Goldsmith, in June 2004, Comey fully supported his decision to withdraw the notorious August 1, 2002 Yoo/Bybee memo to Alberto Gonzales on the legal definition of torture.
  • Based on two FOIA documents (12), on July 2, 2004, Comey met with Muller to discuss “the use of interrogation techniques on a certain high-value detainee.” Comey apparently approved the use of the nine techniques other than waterboarding discussed in the August 1, 2002 Bybee/Yoo memo. On July 7, Goldsmith wrote to Muller to emphasize that Comey’s approval “presupposes that the techniques will adhere closely to the assumptions and limitations” in the Bybee techniques memo. PDF p. 26 of Bybee’s response to the OPR report identifies the detainee in question as Janat Gul, but based on press reports, on the timing of the detainees’ interrogation & other redacted OLC documents it was more likely Hassan Ghul.
  • On August 6, 2004, OLC advised the CIA that waterboarding a particular detainee would be lawful assuming the CIA adhered to certain limits on the technique—including monitoring by medical and psychological personnel. OLC also said it was relying on the CIA’s representation that the detainees who had previously been waterboarded were in “good physiological and physical health” and had not described the technique as physically painful. (Based on the ICRC’s interviews with former CIA detainees, allegations made at their Combatant Status Review Tribunals and through their counsel, this representation seems to have been clearly false. But most evidence that would definitively disprove it remains classified.) Despite OLC’s authorization, the detainee does not seem to have actually been waterboarded. (This letter most likely refers to Ghul but that has not been confirmed).
  • On August 26, 2004, OLC advised the CIA that it would be lawful to use “dietary manipulation, nudity, water dousing, and abdominal slaps” in a detainee’s interrogation. “Water dousing”, which was not listed in the original Yoo/Bybee techniques memo, involved placing detainees on the floor and pouring water as cold as 41 degrees over them. (Again, this letter most likely refers to Ghul but that has not been confirmed).

Comey’s name does not appear on the publicly released August 2004 correspondence between OLC and the CIA. But based on his involvement in other discussions about CIA interrogations in general and Ghul’s interrogation in particular, it is quite plausible that he knew about and approved it.

  • OLC sent two more letters authorizing the CIA to use “enhanced” techniques on September 6, 2004 and September 20, 2004. Again, Comey’s name is not on the correspondence and it’s not clear what he knew about these interrogations but it’s possible that he was involved in the approval decision.
  • Comey was, however, the recipient of OLC’s December 30, 2004 memo to replace the notorious August 1, 2002 Yoo/Bybee memo on the legal definition of torture. As our Task Force report explains (at page 152), the superseding memo from Acting Assistant Attorney General Daniel Levin to Comey discredited parts of the original memo’s legal analysis and modified others, but nevertheless found that even under the new standards Levin’s memo set forth OLC’s prior conclusions regarding the treatment of detainees would stand.
  • Much of the relevant correspondence between OLC and the CIA during this time remains classified.
  • In May 2005, OLC issued three memos signed by Stephen Bradbury on the legality of the CIA techniques:
    –A 46 page memo, issued on May 10, 2005, on whether the individual CIA techniques, including waterboarding, violated the torture statute.
    –A 20 page memo, also issued on May 10, 2005, on whether the combined use of the CIA techniques violated the torture statute.
    –A 40 page memo, issued on May 30, 2005, on whether the CIA’s treatment of detainees violated the prohibition on cruel, inhuman, or degrading treatment or punishment.
  • A series of emails from Comey discussing the May 10 Bradbury memos, which the New York Times published in 2009, may provide the best insight into his views on the CIA program. Comey did not object to the 46-page memo that evaluated the CIA techniques individually, but strongly recommended against issuing the shorter memo on combined techniques. Comey recounted telling Attorney General Gonzales that:I was here to urge him not to allow the “combined effects” memo to be finalized. I told him it would come back to haunt him and the Department. I told him the first opinion was ready to go out and I concurred. I told him I did not concur with the second and asked him to stop it.

The emails say that one reason for Comey’s concern about the combined techniques memo was its “prospective nature”. Comey later old OPR investigators that “[h]is main concern was that the memorandum was theoretical and not tied to a request of specific techniques on an individual detainee. Comey believed it was irresponsible to give legal advice about the combined effects of techniques in the abstract.”

The second opinion was issued despite Comey’s objections. He wrote at the time, “I don’t know what more is to be done, given that I have already submitted my resignation.”

  • Comey later told investigators from DOJ’s Office of Professional Responsibility that he was not aware of the third Bradbury memo, on whether the CIA’s techniques were cruel, inhuman or degrading treatment.
  • According to the emails linked above, on May 31, 2005 Comey and Patrick Philbin met with Attorney General Gonzales before a National Security Council principals committee meeting on the CIA program. Gonzales told them that Secretary of State Condoleeza Rice “was not interested in discussing details and that her attitude was that if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for detailed policy discussion.” Comey said he described the techniques to Gonzales

to demonstrate that some of this stuff is simply awful. I told him it would all come out some day and be presented in the way I was presenting it. I mentioned that I had heard there was a video of any early session, which would come out eventually….I explained that even he and Bradbury believed that the legal question was extremely close; and the details of what we are talking about, there needed to be a detailed factual discussion, followed by a full policy discussion. It would land on the President eventually [and] it simply could not be that the Princip[als] would be willfully blind.

That is my best summary of what is publicly known about Comey’s role. Analysis will follow in another post.

 

This entry was edited on June 10, 2013 to include information regarding the December 30, 2004 memo.

The views expressed in this blog post are not necessarily those of TCP, its committees, or boards. 

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