Did Condi Really Not Know Defense Was Sleeping with the Spooks on Torture?
There’s a weird detail in John Yoo’s prepared testimony for last year’s House Judiciary Committee hearing on Assholes Who Torture. He claims the National Security Council (so, presumably John Bellinger or Condi or her boss) ordered OLC not to let on what it was doing to either State or Defense.
In particular, the offices of the CIA general counsel and of the NSC legal advisor asked OLC for an opinion on the meaning of the anti-torture statute. They set the classification level of the work and dictated which agencies and personnel could know about it. In this case, the NSC ordered that we not discuss our work on this matter with either the State or Defense Departments.
To be fair, Yoo is referring to the production of just the Bybee One memo–the one requiring torture to rival organ failure or death–and not the recently-released Bybee Two memo–the one detailing the techniques in question. And from reviewing the hearing now that Bybee Two has been released (trust me, I mean it when I call it the hearing on Assholes Who Torture), it’s clear that Addington and Yoo both maintained a clear distinction between the two memos (in Addington’s case, for example, he did so to avoid admitting he had discussed torture techniques with the folks in Gitmo.)
So it’s possible that Yoo was only ordered to keep this memo secret from DOD; it’s possible Condi knew the techniques memo was basically a group project for the torture kids over at Defense and CIA.
But with this weird detail in mind, I find another weird detail from the Senate Armed Services Report even weirder. Both DOD’s Jim Haynes and CIA’s John Rizzo kind of sort of take credit for passing the material from JPRA to Yoo and friends at OLC. Here’s Haynes:
Mr. Haynes also recalled that he may have been "asked that information be given to the Justice Department for something they were working on," which he said related to a program he was not free to discuss with the Committee, even in a classified setting.
And here’s Rizzo:
According to Acting CIA General Counsel John Rizzo, the techniques that the OLC analyzed in the Second Bybee memo were provided by his office. In his testimony before the Senate Select Committee on Intelligence, Mr. Rizzo stated that his office was "the vehicle" for getting the interrogation practices analyzed in the Second Bybee memo to the Department of Justice.
These aren’t necessarily contradictory. Maybe Haynes said to Rizzo, "I don’t have any reason to go over to DOJ right now, and besides, I’m pre-emptively hiding from all prosecutors. Can you bring it over?" (Though it seems like it’d be Rizzo’s job to "vehicle" it over anyway, since it was his agency asking for the torture okay.)
But the possibility that Condi didn’t know DOD and CIA were working hand in "take the gloves off" on torture, plus the squirmy way Haynes and Rizzo appear to want to hide who actually brought the documents over, makes me wonder how much Condi is discovering in the SASC report.
It goes without saying, though, that I’m thoroughly unsurprised they left State out of the torture loop.
Can I go semi OT to say that this water torture that Olbermann keeps showing is really phoney. The guy never moves his arms.
That should be “National Security Council” — which makes Yoo’s comment rather bizarre. The National Security Council includes the Secretary of State and Secretary of Defense, so Yoo was not being ordered to keep these two departments completely out of the loop.
Instead, this sounds to me more like he’s covering his tail for not consulting with the JAG heads at DOD or State’s legal experts on international treaties. “Gosh, under ordinary circumstances, of course I would have talked to these folks at State and DOD. But the NSC — the principals — set the classifications so tightly that we had to do it all in-house.”
Take it a step further.
If you are Dick Cheney or Don Rumsfeld and you get wind of Alberto Mora’s rumblings of discontent, the last thing you want is for OLC to talk to the military lawyers. Making the classifications so tight as to prevent that conversation from happening was an elegant (mathematically speaking) solution. Given Cheney’s penchant for bureaucratic infighting, especially by outflanking his opponents before they even know the battle is under way, I’d say this fits his Standard Operating Procedure to a T.
Ah nutes. I meant Council. I’m making a concerted effort to spell out acronyms and look where taht gets me?
This was well before Mora’s dissent.
I took the NSC reference to be the technically incorrect but commonly used reference to the staffers who report to Condi.
The notion that DOD was formally kept out of the loop is consistent with the detail that Rummy did not get formally briefed on torture until 2003 (yeah, right), at precisely the same time as Powell (per the SSCI narrative).
Who were the NSC and CIA legal advisers at this time? That’s who Yoo points to as the folks who set the classification rules.
This whole discussion reminds me of Angler, where Bart Gellman tells the story of the almost mass resignations from DOJ, led by Comey, over the DOJs refusal to re-certify the warrantless wiretapping. The morning before the infamous hospital visit to Ashcroft’s bedside to try to get him to overrule Comey, Comey was at the WH for a briefing. He pulled Fran Townsend (deputy national security advisor for terrorism) aside, and asked if she recognized a certain word – the codename for the program Comey refused to certify. She didn’t, and he pushed her to go to Condi, “because we had a meeting here yesterday on that topic that I would have expected her to be at.” His thoughts were more blunt, according to Gellman: “Oh, God. They’ve held this so tight. Even Fran Townsend. The President’s counterterrorism adviser is not read it.”
I’m smelling the same thing with the testimony from Yoo. They’re playing the classification games to keep unwelcome voices out of the conversation.
John Bellinger was NSA General Counsel
Scott Muller was CIA General Counsel. But I get the feeling that Rizzo was the lead on this (he was Deputy General COunsel)
Perhaps a more accurate description would be that of Legal Adviser to the National Security Council so as not to get confused with the National Security Agency’s (NSA) General Counsel.
And I thought I’d throw this from the LAT in the mix:
And this from the same article:
(My Bold)
My, my, sure is a whole lot of finger-pointing going on. *g*
Correct. Sorry.
They ought to just rename bot the National Security Advisor–and have a COSNS and COSDP. And the rest of the NSC people in teh WH? Dunno, but it’s a weird structure.
ABsolutely agree–and that’s clearly why they kept Powell out of it.
But I’m puzzled by this, along with the SSCI narrative that says Rummy wasn’t briefed until 2003.
Though of course he ahd already signed off on torture in 2002, so why bother?
My WAG re Rummy:
Through Cambone and others, Cheney and Addington were likely well aware of the opinions of folks like Mora and the other JAG chiefs. Even if they had not formally weighed in yet on the interrogation document (that discussion comes late in the year and early the next year), their more general opinions about “following the book” and reactions to the GWOT were probably well enough known that Cheney and Addington knew that they would have a problem at DOD if word got out to them about what OLC was doing.
The easiest way to keep folks like Mora out of the discussion is not to tell Rummy. If they brief the SecDef, they can’t exactly say “but don’t talk to your own lawyers about it.”
It comes back to the first rule of bureaucratic warfare: it is much easier to defend an existing contentious policy than to fight a nasty battle to get a contentious policy written in the first place. If they can get OLC to write their opinion before anyone at State or DOD can object, it makes it a helluva lot harder for State and DOD to overturn it.
Holy f*ck!
I nearly fell off my stationary cycle at this bit:
Okay, I have no clue what actually happened here.
But I will stick what’s left of my neck out and say that if this were a novel, there would be several onion layers: the first being ‘avoid letting anyone who has to talk to the press in on the deep shit’, and the second layer would be a very powerful, small conspiracy.
Wonder why Cheney was so desperate to have Dubya pardon Scooter at the end of the administration… For the legal beagles here, IF Bush HAD given Scooter a full pardon, then would Scooter be more — or less — precluded from being required to answer FBI or Congressional questions…?
And remember just what Scoots was responsible for:
(My Bold)
A couple of points:
1. Scoots was PapaDick’s right-hand man on National Security stuff. PapaDick never took a leak (A pun? Why yes, tis! *g*) without Scoots unzipping him and then shaking it dry.
2. PapaDick was in a world of hurt when Scoots left (nb: October 28, 2005). Why you ask? Because a convicted felon would have his Security Clearance pulled in a heartbeat! PapaDick lost his best gopher to run his black ops and shadow National Security Council.
3. Notice the timeline of Scoots service. 2001 to 2005! That about covers the entire timeline universe of the OLC Torture Memos. From Yoo and Bybee; all the way through Bradbury.
So EW, and Scooter Libby-ologist, I wonder when we’ll see Scoots fingerprints on all of this?
Great analysis there MadDog. Well done.
I am rereading the post and realizing I’m not understanding the significance.
How would Condi finding out about the Bybee One memo affect the process positively or negatively?
Who had more power to influence the president (defined as Bush or Cheney?) at this time?
This next comment reflects on my lack of knowledge of institutional roles. What is State’s job (as opposed to DoD or CIA’s?) considering that the State Dept’s diplomatic offices need to have some sense of what is going on since they provide diplomatic cover for some CIA officers in the US Embassy for any particular country?
And as National Security Advisor to the President, wouldn’t Rice have to be told anyway to help Bush decide on a plan of action?
Bybee One memo just makes definitions of what is or is not torture. It doesn’t not recite a fact pattern (thanks, Mary), so I don’t yet understand the importance of keeping this a secret since Rice presumably sees Bybee Two memo.
Sorry–it’s Rice (presumably) who ordered Yoo not to include DOD and State in hte discussions on the torture memos.
State was excluded, almost certainly, bc they had made a stink earlier in the year when the WH was ruling that Geneva COnventions didn’t apply to enemy combatants–as you would expect them to do because that made us a pariah in the world (and, of course, as former miliary, Powell and Armitage and Wilkerson would recognize the danger of torture to our own military.
That last reason is probably why Condi didn’t want DOD to be informed.
Oh, I see what you are saying. Rice, I assume, was not yet at the State Dept.
Not until January 2005; well after the Bybee memos were concocted in August 2002.
Thanks. I do remember them fanning out from the White House, but the actual years escape me. I need employment timelines of BushCo to overlay on the timelines!
A calendar-based list, with all the events laid out in parallel columns, one column per subject, with duplicate entries when they intersect? Maybe something done in Excel or some other spreadsheet?
Yup. All the more interesting, now that you mention it, that Cheney refused to publish a list of his publicly paid, federal government employees on his staff.
Weird, no….?
Yes to you both, and intriguing what MadDog says above @41:
Perhaps, but I’d add to the mix these things too:
Compartmentalization – SOP, so don’t mix CIA and DoD black operations.
Additionally, there was no love lost between Tenet and The DoD Don with regard to who should be running the GWOT show.
Lastly, I’ve had the distinct impression that PapaDick ran the NSC meetings; either explicitly or by dint of personality.
If Condi was the “author” of the “don’t involve State and DoD”, it may have only been as a signatory figurehead to the one who really made the call.
That would not be at all untypical for PapaDick’s domination of WH evil-doings.
To clarify one more point: Condi was the National Security Advisor – WH staff, and but one member of the National Security Council.
The more we find out (and perhaps Condi too), it sure seems that PapaDick and The DoD Don were running their own black “National Security Council” with “Girls Not Allowed!”
I’m guessing that PapaDick and The DoD Don thought (and still do) that “girls” don’t know nothin’ about military (guy) stuff.
And it was quite well known during Condi’s tenure as NSA that even Colin Powell considered/treated Condi as nothing more than a “glorified secretary”.
Poor Colin. Gelded himself by the the good ol’ boys PapaDick and The DoD Don, he at least could bandage his ego by dissing Condi.
That’s some pecking order they had in the Bush/Cheney Administration.
And Junya himself somewhere between Condi and Colin.
I also (maybe wrongly assume) that OLC opinions are cc’d to the WH (as head of the Executive Branch) whenever a subsidiary twig of the Executive Branch requests or receives an OLC opinion. How else could the Unitary Executive know whether his minions are following his orders?
Both OLC memos Bybee One and Bybee Two where signed August 01, 2002.
Bybee One (definition of torture) was sent to Gonzales at the WH
Bybee Two (torture menu) was sent to Rizzo at the CIA
Wouldn’t Gonzales have received a copy of Bybee Two? and by extension would Rice have access to it?
My thought is that if copies showed up at the WH (for those not directly requested by Fredo) like Bybee Memo 2, they were cc’d to the Office of Vice President with retention by PapaDick and Addington; and not necessarily to NSA Rice.
How would we know? The email system was down.
I would bet on Hadley as the perp. He was Cheney’s man on the NSC staff. This is the kind of stuff he, not Rice, would have handled.
My money’s always been on Hadley for connecting rods, manifold & especially gearbox of the Bushcomobile.
Whoa! I made my previous comment before reading Wm Ockham’s 16. I am feeling mighty smart just at this moment.
I figure they deliberately firewalled Condi on a fair amount of stuff so that she’d appear plausible. Meanwhile, Hadley was lurking in the background working between John Bolton (Cheney’s spy at DoS) and OVP and Hadley.
He pulled Fran Townsend (deputy national security advisor for terrorism) aside, and asked if she recognized a certain word – the codename for the program Comey refused to certify
I would not be surprised in Townsend lied.
Remember her positively saccharine resignation letter?
According to Gellman, Townsend was “an old friend” of Comey’s. If she lied, Comey missed it. And assuming she was read in, she’d have no reason to lie to Comey about recognizing the name.
DOJ had been hamstrung by the classification rules of the program, and this was the confirmation that Cheney was doing the same thing at the NSC. Keep the circle as tight as possible, so that no one will say no to what we want to do.
They both go back to SDNY together.
That and the fact that she got on the wrong side of Lamberth pre-9/11 for some less than candid interactions with the FISCt and may have even been barred from appearing before them as a result.
EW,
Isn’t it relevant here that DOD and CIA had parallel interrogation structures? Around this time? I remember a very clear scenario that Rachel Maddow painted, indicating that those parallel structures– bureaucratically distinct, but both going for the same torture techniques– proved to Rachel that they were united at the top.
Or am I confused about the timelines here?
Bob in HI
No, that’s the point I’m making. Here’s my best wildarsed guess of what happened.
1) Decision to torture.
2) Hiring of James Mitchell at CTC (though he’s got ties to JSOC), who begins to develop torture, perhaps based on al Qaeda torture manual.
3) CIA attempt to launder Mitchell’s techniques through SERE, because then you could argue a) it was scientific and b) it was legal since we did it to our servicemen
4) After CIA develops its program, it then migrates to Gitmo and from there to Iraq and Afghanistan
3) CIA attempt to launder Mitchell’s techniques through SERE, because then you could argue a) it was scientific and b) it was legal since we did it to our servicemen
Too bad they did not understand the research done on sleep deprivation because they might have found out their version of it was useless.
WH staff, and but one member of the National Security Council
But the one who chairs the meetings of the NSC Principals.
Bellinger really is a weasel, isn’t he?
As NSC legal advisor, he is joining with Rizzo as CIA Gen Counsel to tell DOJ that they as the lawyers have determined that the full NSC will not get the info that is being requested. The Circ list is going to whittle the NSC down so as to avoid DoD and State (but will go to Rice, Tenet, OVP, Gonzales and Ashcroft).
I think this is a part of what Powell was getting at in the conversation with Maddow – that the meeting records might show that he was not necessarily “briefed in” on the torture to the extent that has been set forth in some of the articles about the meetings of the Principals.
Obviously they didn’t want both Powell and especially Taft (who I don’t agree with either vis a vis some of his memos, but who actually laid out defensible positions and could barely keep the tone of contempt out of his memos to the the Yoo/Addington cartel)(from his argument on why the Conventions should apply: “The President should know that a decision that the Conventions do apply is consistent with the plain language of the Conventions and the unvaried practice of the United States in introducing its forces into conflict over fifty years. It is consistent with advice of DOS lawyers and as far as is known the position of every other party to the Conventions.”)
They knew Rumsfeld was on board and so was Haynes, so keeping them out of the loop looks like it was only done as a matter of form. Probably until they dealt with how they were going to handle the UCMJ and Feb 02 directive on humane treatment issues.
Hadley no doubt has some innocent explanation for all this. /s
Marcy, I believe you are absolutely amazing. Your blog, I know is where many journalists peek to check the facts. It just disheartens me so to hear the good old white boys on NBC & CNN all talking and saying that the President is squelching any kind of investigation and/or truth commission about tortutre and the Bush administration. The excuse they are giving is that it involves Democrats – like we could not handle getting rid of bad appple democrats. All of them are saying the same thing – that they nipped it by Friday because they realized it was getting ahead of them. I am sickened by the patsey men who believe that they are the upper elites and escheleon of television and journalism; Broder, Gergen, Thomas, Scarborough, Buchanan, Matthews, Gregory Meacham, and Kurtz there are so many more. I refuse to buy Newsweek, canceled the Washington Post newspaper; read it online; will not watch Morning (gag-me) Joe, Hardball or Meet the Press, and that is what we need to do all of us – boycott them and give them lousey reveiws and don’t buy their books. I am going to hold out hope for Obama and Holder.
Contact your representative and Senator and insist that Whitehouse or Dorgan head up a fact finding group — or that Karpinski’s recommendation of including allies and having ‘no electeds’ participate.
Some in the media are still embarrassed at their failures with BushCo. Others are covering butts. It’s all bullshit.
It’s up to us to insist — all across the nation.
If you have any family member of friend in the military, arguably you owe it to them to make sure that THEY are safe and not at risk because of this disaster.
Though everything I heard during the first Bush term did reinforce the assessment MadDog conveys in #11, that Rice was an incredibly weak NSA, and only succeeded when she managed to be the last to talk to Bush before a decision.
Condi was in charge of the “Potemkin Village” National Security Council.
In the meantime, PapaDick, along with The DoD Don was running a separate, compartmentalized, shadow National Security Council.
Think about this in relation to just why PapaDick adamantly refused to reveal the size and structure of his staff (hint: enormous compared to previous VPs, and chock full of
nutsIntel and other National Security types).Think about PapaDick’s adamant refusal to release the Vistors Log to his
bunkerNational Observatory official residence.Could it be he was holding off-campus meetings of his shadow National Security Council? Could it be that the Visitors Log would reveal the names of his black shadow operatives?
Natural born team b-er.
[sorry, MadDog. I don’t know how to add back the strike through characters in edit]
Yeah, the only way I found to do it was to manually add the strike word between the back and forward arrow thingies.
pdaly and MadDog: I’m agape at your shrewdness.
Just… wow….
I think you might have meant Peterr and MadDog.
I’ve largely been playing catchup on this thread. *g*
Me no shrewd, but even a MadDog finds a bone now and then. *g*
OT – On the CBC radio program The Current – Janis Karpinski talks with Anna Maria Tremonti about Abu Ghraib. MP3 clip runs about 24 minutes.
Apologies folks. The correct podcast interview with Janis Karpinski is here.
THANKS MARCY and all others who contribute daily to my comprehension of how our government works to protect us/s
I’m late here, but I am puzzled why both Rummy and Powell were briefed on torture on Sept. 16, 2003. It seems to me that either Rummy was there so Powell wouldn’t know he had been singled out and set up to spew bs publicly, or could it have been possible that while Rummy was setting up DoD sponsored torture that he actually didn’t know about CIA sponsored torture? Were Cheney and his henchmen working that hard to isolate individuals, even Rummy and as you suggest here Condi?
Condi dodged a protest at Stanford last night.
Condi had essentially invited herself to dinner at Roble Hall, one of the Stanford student residences. The antiwar group on campus got wind of it and scheduled a get together on the front lawn of the hall, right next to the front entrance, so as to be there to ‘greet’ Condi, when she arrived. By 5:30 there were sixty people there, sort of standing around, eating pizza, and a couple guys got up and gave talks, asking for Condi to come clean about what she had done; there were several signs right near the sidewalk, and a guy in an Abu Ghraib suit . Well, Condi’s advance guys (Stanford/Hoover has a whole lot of these creeps) snooped around with their little hidden mics and all, and they decided they didn’t want to walk in the front, so while the talks were going on in front, they came around back in three big black SUVs with smoked windows, and ushered Condi in the back door, where there were just two witnesses.
Great job, Professor Rice.
Just to flesh things a bit more, from Mayer’s The Dark Side
emph added
So Powell may have known he was being cut out of the loop and again I go back to his statements to Maddow, he might have some backing to being able to say that he, as Sec of State, didn’t have an opportunity to weigh in on the torture. Not to say he didn’t know about it and wasn’t too compliant and complicit, but that would certainly be an interesting letter to have if someone was prosecuting on the good faith issue. Why not ask the experts unless you knew they’d tell you NO and you didn’t want that no in the file?
If Powell knew he was being cut out of the loop, it raises the question of why he agreed to use the al-Libi story in his speech. Perhaps it was a matter of degree. Maybe he didn’t realize the extent to which he was being played. If that’s the case, then it may well be that Rummy’s presence at the Sept. 16, 2003 torture briefing was to continue the facade that Powell wasn’t the only one out of the loop.
I don’t absolve Powell on that – as a practical matter with his connections, he knew stuff. But from an evidentiary standpoint, I’m looking at the paperwork right now. And how do Gonzales and Bush keep up a good faith argument when they are swapping a letter saying “don’t tell anyone at State – the guys who are experts on treaties and the dept that is the only one being run by someone really experienced and well-credentialed re: war”
I also had a long post that I got going on while I had Mayer’s book nearby, but I just lost it all and I’m such a crappy typist I won’t do the quotes again – no time.
But the gist of what I had tried to get at was that I think the timeline needs to include the report issued by the CIA analyst who had gone to GITMO and determined that easily 1/3, likely 1/2 or more, of those at GITMO were mistakes. That was supposedly done sometime in “late summer.”
Bellinger gets the written report, calls the analyst in for a meeting that includes 4star ret Gen and former CIA guy, John Gordon. Gordon agrees there is a problem, Bellinger calls Gonzales to set up a meeting. When Bellinger and Gordon arrive, Gonzales has Addington and Flanigan with him (neither of them having any national security role).
Keep in mind that the Feb 2002 directive from Bush to the miltiary had said that the GCs DID APPLY in the Afghanistan conflict, BUT that al-Qaeda and Taliban would not recieve protection under the GCs. That means that his directive said that non-Taliban and non-AQ were protected by the GCs. So now there was a papered record that we had shipped non-Taliban/AQ people out of country for abuse. Oops.
No wonder Addington blew up a the meeting and aid that the issue of “screening” would not be revisited “We are not second-guessing the President’s decision. These are ‘enemy combatants.’ Please use that phrase” Mayer says the report was sent to the Pentagon and ignored there too.
How many of any of these memos mention the “facts” that there were many disputes on whether these people were enemy combatants or not? Not much there – until you get to one of Bradbury’s opinions, where he tries to fix that problem by dropping in some discussion of “detainees” in general (not enemy combatants or high value detainees) in one of the memos. Then you have some argument, but no fact recitations on status, and it’s really pretty shocking IMO.
Tie that in with what they did on the MCA revisions to the war crimes act. That statute had pretty much provided that grave breaches of the GCs were war crimes. The GCs internally refer to the shipment of protected persons out of country as that kind of very serious breach. So at that point, we had US statute pretty clearly establishing the war crime of shipping non-combatants to GITMO.
But then, in addition to Bradbury’s memo authorizing the abusive techniques as “legal” for all detainees, without regard to status, we got the MCA revision that basically “wrote out” of the war crimes act the shipment of protected persons out of country that the GCs prohibit as a war crime.
Anyway, back to keeping Rumsfeld nominally out of the briefing – they were already getting resistance, from Jan 2002, by military personnel to what they perceived as violations of the GCs. And Rumsfeld had the directive AND the UCMJ and a whole structure that, unlike the CIA structure, had a whole JAG structure that reinforced following law, the UCMJ, etc.
So I think they were really just working with Rumsfeld (via Cheney) and Haynes (via his squashy friend Addington) to pull get their ducks in a row on the coup they were going to pull in the military legal ranks. So that they could have a “fait accompli” when they went to the laywers in the military. Do the “analysis” first for the CIA, all as classified, but don’t make the findings really tied to the CIA’s status in any way, rather, have them ok all the treatments as being legal period. THEN, ship that over to Pentagon. If the military got wind that OLC was working on a memo for DoD, you might have some of those guys doing pesky things like sending info via memos to Yoo that would make it harder to mold his memos. Not a problem with CIA.
I agree. I just don’t see how Powell could have not known he was blowing smoke from start to finish. In the loop or not, I don’t view him as either innocent or sufficiently ignorant.
This makes a lot of sense to me.
Thanks as always for your excellent analysis.
One last quick question, just to make sure I’m clear on the dates. Above you state:
Is that 2002 or 2003? Thanks!
Colin Powell’s State Department left out of the loop. Shocking. And who better to keep it out of the loop in the second term than Condi Longstockings?
It’s surprising that the asking agency sets the classification limits on an OLC/DoJ issued opinion. One would think the DoJ would have its own standards. Oh, wait, that was pre-Bush.
The little evidence to date that has entered the public record makes clear the Bush administration planned to torture soon after 9/11, possibly as payback from guys who measure manhood in inches, not actions. They knew it was illegal from day one. The cat and mouse games seems intended not just to manage the day-to-day resistance from agencies and staff not with the program, but to make the trail harder to follow for a later administration and for federal or international prosecutors.