In testimony before the House Judiciary Committee in 2008, Addington said he had praised Yoo's possible inclusion of the two topics in the memo. He said he told Yoo, "Good, I'm glad you're addressing these issues."
But Addington added a cryptic comment regarding Yoo's motivation. "In defense of Mr. Yoo," Addington said, "I would simply like to point out that is what his client asked him to do."
Responding to follow-up queries from OPR, Yoo and Bybee identified Yoo's "client" as Addington.
The OPR investigators said they doubted Yoo's story about Bybee and Philbin urging the inclusion of the two new sections, since they were not in the original draft and were only added after the July 16 meeting at the White House.
"We believe it is likely that the sections were added because some number of attendees at the July 16 meeting requested the additions," OPR said.
Curiously, too, when talking to OPR investigators, Yoo did not even recall that his memo had permitted the near-drowning technique of waterboarding. The report said:
"Yoo told OPR that most of the techniques "did not even come close to the [legal] standard [of torture],' but that "waterboarding did.' He told us during his interview: "I had actually thought that we prohibited waterboarding. I didn't recollect that we had actually said that you could do it.' He added:
""[T]he waterboarding, as it's described in that memo, is very different than the waterboarding that was described in the press. And so when I read the description in the press of what waterboarding is, I was like, oh, well, obviously that would be prohibited by the statute.'"
Rushing the Opinions
While working on a second interrogation memo, Yoo sent an e-mail message to a colleague that said, "I talked to the white house. They would like the memos done as soon as possible." In another e-mail, Yoo said comments from White House counsel Gonzales and others would be incorporated.
Gonzales told OPR that he would write his comments on Yoo's draft and then pass the material onto Addington or another White House lawyer, "who would forward them to Yoo along with their own comments. "
"Gonzales commented " that Addington was "an active player' in providing his view and input on the draft memorandum. [Gonzales] stated: "I'd be very surprised [if] David [Addington] did not participate in the drafting of this document."
Beyond the issue of substance, the White House dictated the pace of the OLC legal analysis, demanding that one opinion be signed by close of business on Aug. 1, 2002. According to CIA records, the finished memo was faxed to the CIA at 10:30 p.m. on Aug. 1.
Until the end of the process, Philbin had doubts about including the section describing sweeping Commander-in-Chief powers.
It was in this context that OPR investigators asked Yoo about his views on Bush's virtually limitless powers in wartime, posing the hypothetical of whether the President could order "a village of civilians to be [exterminated]?" Yoo answered, "Sure."
In the case of waterboarding and other abusive interrogation tactics, the Yoo-Bybee opinion offered a novel and narrow definition of torture, essentially lifting the language from an unrelated law regarding health benefits.
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