Yoo starts things off with his typical flourish of disingenuousness:

Suppose an al Qaeda cell in New York, Chicago or Los Angeles was planning a second attack using small arms, conventional explosives or even biological, chemical or nuclear weapons. Our intelligence and law enforcement agencies faced a near impossible task locating them. Now suppose the National Security Agency (NSA), which collects signals intelligence, threw up a virtual net to intercept all electronic communications leaving and entering Osama bin Laden’s Afghanistan headquarters. What better way of detecting follow-up attacks? And what president — of either political party — wouldn’t immediately order the NSA to start, so as to find and stop the attackers?

Evidently, none of the inspectors general of the five leading national security agencies would approve.

Those inspectors general, in Yoo’s imagination, aren’t overworked bureaucrats in wrinkle-free shirts, cotton Dockers and overgrown haircuts, buried under endless reams of paper. They’re useful idiots for Osama bin Laden. In truth, the reason why the inspectors general don’t entertain that scenario is because it’s absurd. If the intelligence community knew what the “electronic communications” signatures heading into and out of Osama bin Laden’s Afghanistan headquarters were, they could very easily obtain warrants under the Foreign Intelligence Surveillance Act of 1978, because they’d possess individualized suspicion. This is an unproblematic case, fitting easily under the aegis of the law on Sept. 12, 2001.  It has absolutely nothing to do with what the inspectors general call the “President’s Surveillance Program.” That’s also why the battery of Justice Department leaders like Acting Attorney General Jim Comey, Associate Attorney General Jack Goldsmith, FBI Director Robert Mueller and Associate Deputy Attorney General Patrick Philbin fought to rein in the surveillance activities — because they were overbroad and outside of FISA, which Congress explicitly made the “exclusive means” for conducting legal foreign surveillance. Yoo continues:

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States.

Actually, it’s absurd to think that a law like FISA does. Yoo cites the 9/11 Commission, saying it found that “FISA’s wall between domestic law enforcement and foreign intelligence” proved to be such a hindrance, but that’s a misrepresentation. FISA has no such wall. The “wall” was an invention of the Justice Department under Janet Reno to separate foreign-collected surveillance from criminal investigations, nothing even close to “live military operations,” and in practice that bureaucratic restriction went too far and inhibited necessary FBI-CIA collaboration. The Bush administration’s response wasn’t to get Congress to change FISA; it was to entirely circumvent it.

Clearly, the five inspectors general were responding to the media-stoked politics of recrimination, not consulting the long history of American presidents who have lived up to their duty in times of crisis. More than a year before the attack on Pearl Harbor, President Franklin Delano Roosevelt authorized the FBI to intercept any communications, domestic or international, of persons “suspected of subversive activities . . . including suspected spies.”

You know what law, passed in 1978, didn’t exist when FDR was president? Yoo goes even further, and takes selective quotations from Jefferson and Hamilton to suggest that his long-discredited theory that presidents have king-like powers during times of war, and yet he never comes out and says it, because even in The Wall Street Journal people can recognize absurdity.

What’s amazing about Yoo’s caustic attack on the inspectors general report is that the report itself embarrasses Yoo but does little else. There’s no suggestion of prosecution, no recommendation of additional investigation, no harsh language. It says simply that Yoo says what he says in this op-ed and that his superiors at OLC were cut out of that loop. That’s all. Yoo’s not even in danger, if reports about Attorney General Eric Holder’s potential new investigation are to be believed, of moving into the crosshairs of the Justice Department. Today’s attack on the inspectors general is Yoo’s response to having his own words quoted back at him. Which, perhaps, is insult enough. It’s like seeing the next 30 years of your life unfold before your horrified eyes.

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“This report leaves no doubt that the warrantless wiretapping program was blatantly illegal and an unconstitutional assertion of executive power. I once again call on the Obama administration and its Justice Department to withdraw the flawed legal memoranda that justified the program and that remain in effect today.”

Forgive me if I’ve missed something, but I thought that those memoranda — principally John Yoo’s Nov. 2, 2001 Office of Legal Counsel memorandum underpinning the programs — were either significantly abridged or withdrawn outright. This is from page 182 of the memoir of Jack Goldsmith, the former Office of Legal Counsel head who worked hard to roll back the most extreme legal contentions of his Bush administration colleagues:

I am not permitted to say much about how Jim Comey, Patrick Philbin and I, with the crucial support of former Attorney General John Ashcroft and others, struggled to put the Terrorist Surveillance Program on a proper legal footing. I first encountered the program in 2003-2004, long after it had been integrated into the post-9/11 counterterrorism architecture. Putting it legally aright at that point, without destroying some of the government’s most important counterterrorism tools, was by far the hardest challenge I faced in government.

Now, of course, significant aspects of the program have been codified in last year’s FISA Amendments Act — of which Feingold remains a staunch opponent. But does the legal architecture of the original PSP still remain in place?

I suppose if it does, one vehicle for calling attention to it — and perhaps doing something about it — is the debate over reauthorizing sections of the Patriot Act that will take place later this year.

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According to notes from Ashcroft’s FBI security detail, at 6:20 p.m. that evening Card called the hospital and spoke with an agent in Ashcroft’s security detail, advising him that President Bush would be calling shortly to speak with Ashcroft. Ashcroft’s wife told the agent that Ashcroft would not accept the call. Ten minutes later, the agent called Ashcroft’s Chief of Staff David Ayers at DOJ to request that Ayers speak with Card about the President’s intention to call Ashcroft. The agent conveyed to Ayers Mrs. Ashcroft’s desire that no calls be made to Ashcroft for another day or two. However, at 6:45 p.m., Card and the President called the hospital and, according to the agent’s notes, “insisted on speaking [with Attorney General Ashcroft].” According to the agent’s notes, Mrs. Ashcroft took the call from Card and the President and was informed that Gonzales and Card were coming to the hospital to see Ashcroft regarding a matter involving national security.

Jack Goldsmith remembers that after a seriously-ill Ashcroft told Gonzales and Card to follow Comey’s legal advice, Goldsmith seriously thought Ashcroft might actually die right then and there. Ashcroft earns himself a place in the patriot’s pantheon just for that. I truly can’t wait to see how Bush’s presidential library treats this incident.

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Let me give it a shot. Yoo was a close ideological and bureaucratic ally of Vice President Dick Cheney, Cheney’s lawyer David Addington and White House Counsel Alberto Gonzales. This passel of surveillance programs was extremely close held, and since it went outside a law that’s supposed to be the “exclusive means” for conducting foreign surveillance, having a reliable ally give a legal blessing to the program was crucial. That importance came in stark relief when non-allies at the Justice Department like Jack Goldsmith, Jim Comey, John Ashcroft and Robert Mueller refused to reauthorize the programs in 2004, resulting in the famous midnight visit to Ashcroft’s hospital bedside.

Of course, I’m just speculating. Yoo wouldn’t talk to the inspectors general.

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So who lied to Bybee about what facts the CIA had in its possession?

Presuming that Soufan’s account is accurate — and when he testifies, as he inevitably will, before the Senate Select Committee on Intelligence, it’s going to be as powerful as Jim Comey’s May 2007 public indictment of the Bush legal team, so it better be public is all I’m saying — then someone had to communicate to Bybee a misrepresentation of what was going on during the initial, pre-torture interrogation.

George Tenet’s memoir is unclear on who did this, and probably deliberately, saying only that after Abu Zubaydah’s late-March 2002 capture, “we opened discussions within the National Security Council as to how to handle him, since holding and interrogating large numbers of al-Qa’ida operatives had never been part of our plan.” (That’s page 241 of At The Center Of The Storm.) It’s easy enough to figure that the CIA’s then-top lawyers, Scott Muller and John Rizzo, were the ones communicating directly with Bybee. But someone must have been giving them information about what was happening at the CIA safehouse in Thailand where Abu Zubaydah’s interrogation took place — and suggesting that the interrogation wasn’t going well.

One guess is James Mitchell. Mitchell is a former SERE psychologist whom the Senate Armed Services Committee report says contacted his SERE colleague Bruce Jessen in “December 2001 or January 2002″ to “review documents describing al Qaeda resistance training.” (It’s unclear why Mitchell, then retired from SERE, decided to get into the game that way. Who let him know about those documents?) They prepared a report about what the storehouse of knowledge within SERE — which trains U.S. troops in how to survive and resist torture at the hands of enemy nations — could mean for U.S. interrogations of al-Qaeda. That report, circulated throughout the military — including to the Defense Intelligence Agency — became the basis for seminars that SERE and its overseeing agency at Joint Forces Command held for U.S. interrogators that spring. By April, Jessen prepared an “Exploitation Draft Plan” for “select al Qaeda detainees.” That would be days or weeks after the capture of Abu Zubaydah.

Somehow, a SERE guy was part of the Abu Zubaydah interrogation as soon as CIA officials deployed to interrogate the detainee. It is unclear how exactly the CIA knew to contact SERE experts for assistance in their interrogations of Abu Zubaydah. The August 1, 2002 OLC memo identifies as a “Survival, Evasion, Resistance, Escape (”SERE”) training psychologist who has been involved with the interrogations since they began.” I initially thought that was Jessen, but public accounts (including those cited in the Senate report) suggest it’s Mitchell. And Mitchell was known to say things like this, as quoted on page 156 of Jane Mayer’s The Dark Side:

[O]thers present [at the interrogation] said he seemed to think he had all the answers about how to deal with Zubayda. Mitchell announced that the suspect had to be treated “like a dog in a cage,” informed sources said. “He said it was like an experiment, when you apply electric shocks to a caged dog, after a while, he’s so diminished, he can’t resist.”

This horrified the FBI agents on scene, Mayer reports. (“Science is science,” Mitchell retorted. Spoken like Sean Hannity!) They were eventually ordered to leave the interrogation, which became brutal. According to Soufan, some of the CIA people were also uncomfortable with that brutality — but they didn’t have the luxury of leaving. So it’s conspicuous when Soufan writes today:

My C.I.A. colleagues who balked at the techniques, on the other hand, were instructed to continue. (It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not C.I.A. officers, who requested the use of these techniques.)

That reads a lot like Soufan is fingering Mitchell as a driving force behind the turn toward brutality. It would make sense, then, that he would be communicating back through whatever channel to CIA superiors that the interrogation’s iterative, rapport-building approach wasn’t working well enough — or leaning on the official point of communication to include his own point of view in the account. This is pure speculation, though. It’ll take an investigation, currently led by the Senate intelligence community, to truly get at the truth.

But is it too cynical to suggest that Mitchell also had an interest in saying that Soufan and the FBI’s (and apparently, in part, CIA’s) non-brutal techniques failed? From page 24 of the Senate Armed Services Committee report:

Subsequent from his retirement from DoD [the Department of Defense], Dr. Jessen joined Dr. Mitchell and other former JPRA [Joint Personnel Recovery Agency, which oversees SERE] officials to form a company called Mitchell Jessen & Associates. Mitchell Jessen & Associates is co-owned by seven individuals, six of whom either worked for JPRA or one of the service SERE schools as employees and/or contractors. As of July 2007, the company had between 55 and 60 employees, several of whom were former JPRA employees.

Science may be science, but money is money.

Update: My mistake. Scott Muller wasn’t CIA general counsel during the spring 2002 Abu Zubaydah debate. I regret the error.