Goss and Harman's July 13, 2004 Briefing on the IG Report
The Ghost Detainee FOIA (for more background see here, here, and here) also has a Memorandum for the Record from CIA’s briefing for Porter Goss and Jane Harman on the CIA’s IG Report on July 13, 2004.
The MFR is interesting for the details it gives of how Harman and Goss responded to news of the CIA IG Report–and with it, news of the abuses of the torture program.
None of the detainees who died had been subjected to enhanced interrogation
The MFR transcribes a claim from CIA IG John Helgerson that “none of the detainees who had died had been subjected to the enhanced interrogation techniques.”
Helgerson must be playing word games here, because by the time he states this Habibullah and Dilawar had died from a combination of sleep deprivation and stress positions and other abuse. Manadel al-Janabi had been crucified by stress position during interrogation.
So what Helgerson must mean is that none of the High Value Detainees died during torture; others who were tortured did die.
Confirming previously redacted details of the IG Report
The MFR confirms two things we already knew about the CIA IG Report, but which had been redacted when the report came out last year. First, there was IG John Helgerson’s concerns about whether the program violated the Convention Against Torture:
The IG indicated that the 1 August memo did not address Article 16 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. AThe article 16that [sic] required signatory Sstates [sic] to prevent in any territory subject to their jurisdiction acts of cruel, inhuman and degrading treatment of punishment not amounting to torture. The question was whether CIA’s use of the enhanced techniques would transgress U.S. obligations under Article 16.
The MFR also spells out the IG’s concerns about the torture program as practiced.
The IG indicated he was also bothered in that the DOJ 1 August document did not address interrogations as we carried them out.
From here, Helgerson’s briefing goes into detainee deaths and waterboarding–and from there into a discussion of problems in the guidance sent out over cables.
[Helgerson] said that three people had been interrogated with the waterboard. On one, the IG felt it had been used excessively, beyond what the IG thought was the agreement with DOJ. Khalid Sheikh Mohammed (KSM) got 183 applications [redacted] The IG indicated the guidance in cables sent to the field evolved over time and that the guidance did not get to everybody who was involved in debriefing interrogations.
Aside from the impression the IG report gives that Helgerson also found Abu Zubaydah’s waterboarding excessive (not least because officials at Langley ordered up another sessions after he was already compliant), I wonder whether he claims that the waterboarding itself, or the torture program more generally, got out of hand because the cables started going crazy?
Jane Harman still looking for a Presidential Finding
I have long argued that Jane Harman’s February 10, 2003 letter to Scott Muller, with its inquiry as to whether the President had approved of the torture policy, was an attempt to understand whether the President had issued a Finding to cover the torture program.
In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?
Almost a year and a half later, Harman still seems to be seeking a Presidential Finding. The MFR records,
Ms. Harman asked when did we being using “enhanced techniques.” DDO [Jim Pavitt] responded that it began with Abu Zubayda.
[snip]
Rep. Harman noted that the [redacted] did not specify interrogations and only authorized capture and detention. She asked whether we had questioned detainees before the [redacted]/ The GC said yes, but no enhanced techniques had been used before Abu Zubaydah and there was [two lines redacted] Abu Zubayda and enhanced techniques which started in August 2002. In August 2002 there was a lengthy unclassified opinion by DOJ generally discussing interrogations. In a separate and classified opinion addressed to John Rizzo, OGC, DOJ concluded the ten specific CIA techniques, which included the waterboard, were legal for use with Abu Zubayda.
We can assume the first redaction refers to the Presidential Authorization because we know that it did only authorize CIA to capture and detaine al Qaeda figures.
While we can’t be sure, Harman seems to have figured out a few details. First, the September 17, 2001 Presidential Finding that had authorized the detention program in its first years could not be said to authorize torture. Then, twice during the briefing, Harman seems to be honing in on the obvious question: did the memo precede the beginning of the torture? When first asked, Pavitt answers shrewdly: it all began with Abu Zubaydah. But then she directly asks whether the torture of Abu Zubaydah preceded the torture memos, which we now know it did. There is a redacted passage, so we don’t know how the exchange ended. But curiously enough, CIA respond by bringing up the torture memos which–if Harman read the IG Report–she should already know about. In any case, it seems clear that Harman had legitimate doubts about whether the torture was legal. I also wonder whether she suspected the earlier approval direct from the White House?
You subhead this:
and then note people like Diliwar who died, having been tortured to death, as a possible contradiction.
I would say the slime exposed to liability for those lies would come back with:
Or reasoning to that effect.
Oh, I agree–that’s what I meant when I said Helgerson must be playing word games.
When did dissembling, however fancifully and artfully contrived, reach a level that might be termed “reason”?
(But, then, I too often forget, scribe, and all humor and word-gaming aside, that our topic, at bottom, is the law … of something …)
DW
Unreliable narrator.
These MFRs were produced by Stanley Moskewitz. In several cases, he’s clearly distorting some things deliberately.
That’s why I point out that his version of what Helgerson says about waterboarding doesn’t make sense–it contradicts what Helgerson said in the study.
That said, I don’t think Moskowitz was doing Harman any favors. (Though in my post on Roberts, he may have made ROberts come off even more lame than he is, because his version reads like a sit com).
EW,
More amazing work! You are awesome.
A quibble with this sentence, which threw me off at first:
“Seems” implies present tense, now, in 2010, which is much more than a year and a half later. Your heading implies currency as well, but in context, you must mean July? 2004, the date of the MFR report. So “seems” should be stated in past tense (“seemed”). It may be that Harman is still waiting, but that’s another issue, which needs another paragraph, or else just change the heading.
Thanks,
Bob in AZ
Slightly OT:
Includes this paragraph:
I am grateful that Holder published the OPR report separately from Margolis’ review, without revising the OPR report, so that actions like this can move forward.
Bob in AZ
Not. Going. Anywhere.
State bars give incredibly high deference to the DOJ on these issues, and since none of the offending activity actually occurred in courts, but was internal to the DOJ and Federal government, there is little, if any at all, chance that a state or district bar will take up action without a supporting finding by the OPR.
Actually, no one investigated Koester at all. So, there are no findings as to the propriety of her behavior.
No, there were, very clearly. They found her not incompetent because she was too young and inexperienced to know better.
Because Yale, apparently, does not prepare one to do a simple Lexus search.
And note most of this investigation was based on her emails. They killed Yoo’s emails, and so largely have only what he said to her.
also, while I respect their efforts, they should read the report before filing and issuing press releases
Worth noting:
1. For those who think Koester’s making only $180k, think again. Profits per partner at Kirkland & Ellis come in the $2 mil/year range.
2. I think we can see why DoJ might have wanted to hide Koester’s involvement; Kirkland’s sort of an OLC in exile. Look at who works there:
Wait. I thought Bradbury was working at Dechert?
You might be right on that – the wiki page I linked showed he’d worked there but not necessarly that he was currently working there. So, I went to their page and checked out the DC office (lawyers are arranged alphabetically) – he does not show up there.
But, from the same page here’s something to make you gag.
And another.
Remember, profits per partner in the $2 million/year range.
A regular Federalist Society nest.
Eeeeeek! It’s an entire nest of them. I’ll have nightmares over this.
From the Correlation Is Not Necessarily The Same As Causation But It Makes Ya Wonder About Fucking With The CIA Anyway Dept.: Harman got wiretapped on the AIPAC thing in 2005.
Wiretap appears to have been legitimately on a different individual as I recall.
If no one died why the need for tracheotomy kits?
And then CIA sought reaffirmation of its prior written approval, and a new statement re Article 16.
Interesting for showing the role of Ashcroft, who for months (maybe a year and half or more) had assured the “legality” of the use of techniques, esp. re Article 16, about which the CIA had doubts. Then Ashrcroft’s “willingness” to continue with this role, as the breath of scandal and public outrage fell upon the administration. Thank you Joe Darby!
Of course, there’s the lies to Congress about wh”the GC said…”).
But Harmon doesn’t come off so well. Really? She was still waiting to hear about approval for the torture for a year and half? That is unconscionable. The handwriting was on the wall early on. It was a bad sign that no one would be disciplined for the handgun incident. It was a bad sign that CIA itself felt that they were likely in violation of CAT.
Gitanjali Gutierrez, attorney for the Center for Constitutional Rights, is quoted as saying, upon release of these docs:
We could start with Pat Roberts’ obstruction of Graham’s attempt to get more oversight, which EW pointed out in her previous post. The role of Ashcroft is clearer in its work in enabling the CIA program. Harman may not come off as a major player, but it doesn’t look, frankly, given the level of the crimes involved, that she did enough. Yes, she was lied to. But I can’t get it out of my head her 18-month gap.
I don’t think any lawmaker comes off well. That’s my opinion. Democrats did know a lot more about torture and they did nothing about it. Not even a statement as benign as “we are gravely concerned.” They could have said that without revealing info. Instead they kept silent for the most part. That is why, in my opinion, we can’t trust Congress at all on this even when it comes to a hearing like Leahy’s.
No, you are quite correct. Really opening the can of worms only invites opportunity for the neo-con torture crew to start pointing out the complicity of Congress, including the Democrats.
Exactly. Over the course of seven years they, Democrats, have been pretty damn silent on everything. Reading these latest docs and the fact that it shows they were told about drills, guns, etc. just underscores, for me, how worthless and weak they have been and how complicit they are. I think it’s great that Harman asked questions, and that Graham wanted more oversight. But when it didn’t happen and the answers weren’t given they should have done something more.
You are right. No one comes off well. The Democrats totally failed in their oversight function, making them perhaps more passive enablers than the GOP. But what’s the saying? from Edmund Burke, no less:
That’s a saying worth remembering. I will be using that often.
That’s because Democrats are afraid to death of appearing “weak” on defense. So they agree to all manner of Republican tyrannies, as long as the Republicans can portray it as defense-related. I am glad to see Obama and Holder pushing back on this, and think they ought to be portraying Republicans as Nervous Nellies and Chicken Littles who always think the sky is falling. Ridicule can be a very effective weapon.
Bob in AZ
Um. No.
I’m not a Harman partisan. BUt it’s crystal clear she asked about Presidential notification in her first briefing and her third or fourth, at a minimum. Particularly given the stuff it was clear she DIDN’T know until 2004 (specifically, the Bybee Memo), she frankly did lots more than anyone else (except for Graham) and did what she had the tools to do.
Go ahead and quote someone else–but she provides no evidence and I do.
Fair enough. I see your point. I guess I was just saying was there anything else the Dems could have done to sound alarm bells about all of this
Well, here’s what we know.
1) THe CIA lied in briefings to Congress. Repeatedly. And the CIA withheld evidence we know they had–and had an obligation to convey–repeatedly.
2) The CIA lied about the briefings it did to Congress. Repeatedly.
3) Graham did a good job of exercising oversight. And everytime we get more information, we learn that Harman did more than we know of.
4) We know that Rockefeller did some oversight, and thta one of the reasons they may have destroyed the torture tapes is bc he was asking, repeatedly, for info on them.
5) We knwo that Pelosi didn’t do enough. BUt that she did not do what CIA and Republicans have alleged.
So why, from that available evidence, do we conclude that Dems didn’t do enough. Can anyone here even claim that they know what any given Dem knew at any time?
I cannot claim that I know what any Democrat did at any given time. I actually don’t have an answer to your questions. When I say didn’t do enough I guess what I mean is trying to stop it from continuing. And I suppose my comment was made from a place of anger in general about the lack of accountability and just being pissed off at everyone from top to bottom. Sorry.
Thanks for laying it all out.
EW,
Thanks for being so fair-minded.
I let the Dems off the hook until 2006. But then I faulted them in general, and Pelosi in particular, for not doing enough after gaining control of Congress: Particularly for Pelosi taking impeachment off the table when it should have been the centerpiece on the table. And from that point, the Dems began to share their collusion:
* Conyers wouldn’t allow Nadler’s committee even to begin discussions about impeachment, when they should have been actively discussing the prospects.
* Congress repeatedly failed to use the Constitutional means at its disposal to push investigations, demand subpoenas, and other methods.
Congressional fecklessness here involved a critical misreading of the Clinton impeachment: The Republicans won by losing! That experience was interpreted by Democrats in this way: “Impeachments are dangerous bad, and if we try to impeach Bush (or Cheney), it will only make him more popular.” I think that understanding was totally wrong. The Clinton impeachment failed because the evidence against him was minimal and somewhat contrived. The evidence against Cheney was substantial, and furthermore, the purpose of impeachment is to discover whether sufficient evidence exists! Pelosi and Conyers forbade this discovery procedure. Recall Kucinich’s proposed articles of impeachment?
The second way the Republicans won by losing was that Ken Starr did such a stink job as Special Prosecutor that the Democrats decided that the office– not the officer– was a bad idea, so they allowed the statute for Special Prosecutors to expire.
So the monumental screw-up of the Republican impeachment of Clinton intimidated Democrats and inoculated Bush and Cheney against impeachment or even investigation. IMHO this was a total misreading by timid Democrats who decided to “play it safe” and as a result let Bush and Cheney literally get away with murder.
So yeah, I do blame the Democrats beginning in 2006 for being timid, feckless, reading history wrong, and failing to perform the duties of their oath of office.
Bob in AZ
And frankly, I’m sick of this shit.
We have clear evidence DEms were pushing oversight and Republicans weren’t. Pushing Dems back into the batch with REpublicans is more of the “one side other side” sloppiness.
There’s no doubt that the Republicans were the central figures in the post 9/11 torture program, from the Administration that organized and authorized it, to the GOP Congressional enablers who acted offensively to prevent oversight and were enthusiastic supporters of the Bush-Cheney policies.
By contrast, the Democrats for the most part offered diffuse pushback at best. Among the more aggressive of them was Jane Harman, who wrote a letter to Scott Muller on February 10, 2003, raising “profound policy questions” and concerns, asking specifically what policy reviews (not just legal reviews) had been taken up by the Executive Branch. According to the recently released docs, she and Goss were briefed on the EITs on 2/4/03, though who knows exactly what she was told. However, whatever she heard made her concerned enough to pursue the issue, certainly enough to be alarmed and suspicious of what she was hearing. She specifically asked whether the EITs had been authorized by Bush. Furthermore, she requested the CIA not destroy the videotapes of AZ’s interrogation. Muller answered her with a curt letter saying the EITs had been amply legally vetted, and that he assumed the Executive Branch had done the proper policy reviews.
So far as I know, Harman did not protest more, at least in writing, and then asked for a declassification of her letter after the scandal of the destroyed videotapes broke in 2007. Subsequently, in 2008, she accused the Bush administration of withholding a pessimistic intelligence report about the prospects for the war in Iraq. Harman has not exactly entirely sat on her hands, and I am glad for whatever she has done. I was quite pleased, for instance, in her vote against the Military Commissions Act.
I can understand that criticism of the “good guys” draws a certain amount of heat. However, if any criticism immediately places you in the camp of the “‘one side other side’ sloppiness”, then how is one to accurately assess and comprehend the totality of what occurred during the first eight years of the 21st century, not to mention now? How are we to learn from it?
As you have pointed out before, Harman did at least express real concern. And it is bitter to have to have tools like Goss run around, as he did, trying to implicate Harman and Pelosi in their game. But let’s face it, the CIA did lie and bully Congressional leaders, including Pelosi and Harman and Rockefeller.
I would compare their response, and bureaucratic in-fighting to what another member of a former House Intelligence Committee did when faced with crimes.
What I wrote then about Gingrich’s attack on Torricelli goes for people like Goss, or others who would try and push a “one side other side” line:
One could say the same, for instance, of Goss.
In my opinion, however, “pushing oversight” in the situation the Intel committees were in was not enough. I admit that my feelings about the Democrats and their role as enablers on the criminal Iraq War have bled over into their actions on the torture issue. I will also admit, that as someone who has sat and tried to help torture victims, I have a strong emotional reaction to the issue. How does one stop evil? I don’t know. I try and see and understand the world the best I can.
Much thanks for providing this forum wherein we can express our disagreements.
Also, I’ll note, and EW may be happy to finally see me write this up, as I’ve alluded to it before. The Al Qaeda training manual, to which the CIA alludes in its answer to questions from the SSCI on 6/8/05, i.e., when, possibly wising up some, the Committee was asking just how CIA knew detainees’ strategy was to lie and claim torture, does not give a strategy of telling others to lie about torture.
The manual tells its readers to expect to be tortured by intelligence agencies (though not by law enforcement agencies). They advise bringing up their torture when they have a court or administrative hearing, or ability to talk to anyone in authority.
This makes sense for a number of reasons. For one thing, from a common sense point of view, a non-sophisticated person won’t expect they can fake torture, which they expect will include signs of physical violence to a person. And, given the experience in the Middle East, it makes sense to expect to be tortured. As it turns out, the manual wasn’t very far wrong at all, even in the kinds of torture to expect.
Another lie by the CIA, who is so knee-deep in lies, reliance on anything they say is problematic, to say the least.
Cryptome.org has a full page of info, and links to the manual, chapter by chapter. Chapter 17 has the info on torture:
Briefly, you’ll note that it is never said to claim you were tortured if you weren’t. It insists, though, that if you were tortured, and one should expect that, that evidence of such torture be taken, and also brought up in court. You’ll notice that the emphasis by the CIA is for the prisoners’ claims of torture be invalidated from the start; hence no claim of torture can be considered true, just a lying technique.
Dying after, but not during, the administration of torture must be a death due to unknown causes or self-inflicted acts of asymmetrical warfare.
This has the sense of a Nicaragua-like IranContra secret finding by the President, which Harman, Rockefeller-like and lawyerly, is seeking to document; or, at a minimum, to place her own milestones in the torrent of disregard of the international conventions to which the US was undersigned. I suspect that, like the *constitution*, to BushPresident Geneva accords represented yet more *(mere) piece(s) of paper*. I have yet to see academia analysis of Yoo*s pre-hire writings, though there is mention in the Margolis 69pp memo discussion on professor sites this week that the prime excuse for exculpating Yoo was he was a known factor agitating for unitary executive. There was a striking passage, for me, in his informal interview (last) year (Harpers?) in which he decried the US constitutional construct making courts equal of the other (two) branches of government. JohnBaackBolton might be familiar with international variances in constitution germane to Yoo*s views. I suspect Yoo*s outlook developed early in his life embued with putative efficacy of such autocratic forms of government. Bushco did a lot of that sort of hiring, selecting known factors way outside the curve of normalcy in our constitutional system, hires specifically for the purpose of herding ideologues into a semblance of a government in the service of the unitary executive. I think Goss probably cared negligibly at the turn of events once Bushco went ballistic with unitary simulated execution; but Harman had her say several times.
Is Helgerson trying to say that Dilawar and Habibullah and al-Janabi were military eit deaths, not CIA eit deaths?
Even if so – what about the Nov 2002 death at the salt pit, where they froze to death the young guy they “thought” “might” have known some al-Qaeda guys? I know I’ve read somewhere that a CIA source said that death was briefed to Congress right away.
And have they ever given any account for the about 100 HVD and the only 14 that have ended up at GITMO?
But unless that was an attempt to use extreme temps as an interrogation technique, then it wouldn’t be an interrogation technique, it’d be plain old abuse.
The tools were there in the constitution.
Seems to me there were no briefings to the committees in total just a divide and conquer method to skew the info. You also get nancy in a he said she said because she was picked off alone, the Bible was right in the two witnesses needed to bring out the truth.
This whole CIA, secret sites,rendition for what but to torture without accountability, questioning human beings to death, freezing human beings to death, crucifying as christians another human being not understanding the physics that involved murdering their Christ ( clue it wasn’t the nails) is so sickening, so vile and disgusting and is the antithesis of a nation,claiming open government, through voting, decides the direction the country should go.
We as a nation decided not to torture and put it in writing.
What was traitorous that while swearing to uphold and defend the
constitution they did the opposite in secret instead of letting the congress decide the merits of torture and deciding to un-sign the CAT and Geneva Conventions in the open. SICKOS, more to be revealed as to the depths of their depravity.
jeff kaye @ 40
Thank you for all that you do to keep us informed. I believe that all lawmakers who are part of this debacle of torture and war crimes are suspect. If Team Obama had any intestinal forditude at all there would be a Truth and Reconciliation Commisssion. Failing that I also believe there will be referrals to the ICC for prominent Americans involved in war crimes.
BTW -this is the kind of discussion that makes me renew my memberships in the NRA and Amnesty International – a necessary duality in these times I do also believe.
Pretty much impossible. The ICC has jurisdiction only in the following limited circumstances:
1 and 2 do not apply because the US is not a state party to the Rome Statute. 3 is impossible because the US has an absolute veto on the UN Security Council and will never, and I mean never, fail to exercise it in this kind of situation. People expecting international law, whether it is the ICC or the intrepid Spanish judge, to dispose of our malefactors are living a pipe dream. Not happening.
It wasn’t something to doubt, it was never legal. we ratified the Geneva Accords proscribing torture, for God’s sake!
bmaz@43
so I guess legal scholars such as Scott Horton are just wrong on this too ?
I like Scott Horton a lot; but his head is in the clouds on the international stuff. The jurisdictional limitations of the ICC speak for themselves and are quite clear. As to the Spanish inquisition, short of the Spanish government giving full support to the effort of Garzon, and the government has been so far away from that it is laughable, what I have said is correct. At least as far as I can tell.