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"This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism. "
Yoo said meetings were usually chaired by Alberto Gonzales, who was then White House counsel and later became Bush's second Attorney General. Yoo identified other key players as Timothy Flanigan, Gonzales's deputy; William Howard Taft IV from State; John Bellinger from the NSC; William "Jim" Haynes from the Pentagon; and David Addington, counsel to Cheney.
Yoo's Account
In his book, Yoo described a give-and-take among participants at the meeting with the State Department's Taft challenging Yoo's OLC view that Bush could waive the Geneva Conventions regarding the invasion of Afghanistan (by labeling it a "failed state"). Taft noted that the Taliban was the recognized government of the country.
"We thought Taft's memo represented the typically conservative thinking of foreign ministries, which places a priority on stabilizing relations with other states even if it means creating or maintaining fictions rather than adapting to new circumstances," Yoo wrote.
Regarding objections from the Pentagon's judge advocate generals who feared that waiving the Geneva Conventions would endanger American soldiers Yoo again stressed policy concerns, not legal logic.
"It was far from obvious that following the Geneva Conventions in the war against al-Qaeda would be wise," Yoo wrote. "Our policy makers had to ask whether [compliance] would yield any benefit or act as a hindrance."
What Yoo's book and other evidence make clear is that the lawyers from the Justice Department's OLC weren't just legal scholars handing down opinions from an ivory tower; they were participants in how to make Bush's desired actions "legal."
They were the lawyerly equivalents of those U.S. intelligence analysts, who in the words of the British "Downing Street Memo" "fixed" the facts around Bush's desire to justify invading Iraq.
The importance of this question whether the OLC lawyers were honest brokers or criminal conspirators was not missed by some of the congressional leaders who pressed for a serious investigation of Bush's use of torture and other war crimes.
Two years ago, Sens. Dick Durbin, D-Illinois, and Sheldon Whitehouse, D-Rhode Island, wrote a letter to the Justice Department's watchdog agencies requesting an investigation into the role that "Justice Department officials [played] in authorizing and/or overseeing the use of waterboarding by the Central Intelligence Agency... and whether those who authorized it violated the law."
In the Feb. 12, 2008, letter, the senators questioned whether the OLC lawyers were "insulated from outside pressure to reach a particular conclusion" and whether Bush's White House and the CIA played any role in influencing "deliberations about the lawfulness of waterboarding," a technique that creates the sensation of drowning.
Whitehouse, a former federal prosecutor, said those questions were designed to get to the point that having in-house lawyers dream up a legal argument doesn't make an action legal, especially if the lawyers were somehow induced to produce the opinion.
Defining Torture
In the case of waterboarding and other abusive interrogation tactics, Yoo and Bybee generated a memo, dated Aug. 1, 2002, that came up with a novel and narrow definition of torture, essentially lifting the language from an unrelated law regarding health benefits.
The Yoo-Bybee legal opinion stated that unless the amount of pain administered to a detainee led to injuries that might result in "death, organ failure, or serious impairment of body functions" then the interrogation technique could not be defined as torture.
