Coming after John Yoo

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LS reminded me of an important point.

As soon as (or even before) Mukasey came in as AG, the OPR investigation into the legal opinions that justified the warrantless wiretapping was reopened. When it was reopened, Marty Lederman was skeptical that OPR would get very far:

According to a DOJ spokesperson, the OPR investigation will instead focus on two questions: whether DOJ attorneys "adher[ed] to their duty of candor to the court [presumably the FISA Court]"; and whether those attorneys "complied with their ethical obligations of providing competent legal advice to their client." (NOTE: "Officials said it was unlikely that either of the inquiries would address directly the question of the legality of the N.S.A. program itself : whether eavesdropping on American soil without court warrants violated the Foreign Intelligence Surveillance Act.")

[snip]

Thus, since John Yoo apparently was doing exactly what his client asked him to do, it is difficult for me to see how he could be said to have provided "incompetent" legal advice or to have breached a duty to a client who understood, and approved, exactly what the lawyers were doing.

But after an interesting discussion, he makes one caveat:

P.S. I should add that OPR might uncover information that demonstrates distinct ethical or other legal lapses — such as a smoking gun showing that John Yoo and OLC did not really believe the advice they were giving; or evidence that OLC intentionally declined to seek the legal views of others within the Department because it knew that such views would undermine the office’s desired conclusions; or evidence that DOJ and others provided fraudulent misrepresentations to telecoomunications providers in order to induce their cooperation; or, of course, evidence that DOJ lawyers dissembled to the FISA Court. It would be entirely appropriate for OPR to investigate, report and condemn such conduct. I just don’t quite see the value in OPM evaluating the bona fides or "competence" of OLC’s legal advice.

What if, I wonder, OLC had entirely rewritten the Constitution? What if it was more than just saying (as Marty describes), "that the President has an article II authority to disregard FISA" and instead saying, "the President has an article II authority to interpret article II authority as he sees fit"? Or, as Sheldon Whitehouse described it: Read more →

General Hayden Gets Mail

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Congressmen Conyers, Delahunt, Scott, and Nadler would like Michael Hayden to provide a detailed description of how and why torture tapes got destroyed. Here are the key questions:

3. Did the CIA notify the Department of Justice of its intention to destroy the tapes and if so, when? Did the CIA receive a legal opinion from the Department of Justice’s Office of Legal Counsel, or any other entity, relating to the destruction of the tapes? Please provide copies of any such written materials.

4. In light of the fact that the September 11 Commission and a federal court requested information regarding these types of materials, why did the CIA decide not to provide information to these two entities concerning the existence or possible and actual destruction of the tapes?

5. When the CIA provided information to Department of Justice lawyers in 2003 and 2005 with respect to the request of the court in the Moussaoui case for evidence taken from interrogations of CIA prisoners, as stated in the Times article, what information concerning the tapes was provided to Department lawyers?

I’m especially interested in question number 3. As I said earlier, I think one of the two most likely times for the destruction of the tape is between May 10 and May 30, 2005, when OLC was busy writing torture opinions to override existing restrictions on torture. In fact, I wonder whether they have refused to turn over those particular torture memos (in addition to their desire to hide the ongoing torture) because they didn’t want anyone to know that (probably) Steven Bradbury deemed it legal.

In any case, I think there’s a high likelihood that Bradbury did deem it legal–given Hayden’s repeated claims that it was.

Anyway, things are getting interesting…

Hayden’s Letter

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Marty Lederman has posted a copy of Michael Hayden’s letter to the CIA from yesterday. I wanted to riff further on it. The non-bold brackets below are Marty’s comments. The bold italics are mine. I know this may be hard to read, but I wanted to leave in Marty’s comments because he’s a lot smarter than I am.

Message from the Director: Taping of Early Detainee Interrogations

The press has learned that back in 2002, during the initial stage of our terrorist detention program, CIA videotaped interrogations, and destroyed the tapes in 2005. I understand Note the voice here and recall that they seem to never have fully briefed Mike McConnell on all the details of the illegal warrantless wiretap program. I’m wondering how Hayden "understands" this process? Does he have all the details? that the Agency did so only after it was determined they were no longer of intelligence value and not relevant to any internal, legislative, or judicial inquiries–including the trial of Zacarias Moussaoui. [What about the 9/11 Commission? What about the failure to tell the Moussaoui judge about these tapes? What about the obvious future legislative and judicial inquiries? (Note that the destruction likely occurred just after Dana Priest broke the story of the CIA black sites in 2005.)] I’m not sure I agree with Marty–I think other possible dates for the destruction of the tapes, given the timeline, are around the time when OLC was writing new opinions on torture (between May 10 and May 30, 2005). That said, if the tapes were destroyed after Priest’s story (November 1), then they were almost certainly destroyed after Brinkema asked for the damn things (November 3) but before the government said they didn’t have them (November 14), which would make the claim that they were not relevant to a judicial proceedings a bald-faced lie. The decision to destroy the tapes was made within CIA itself. The leaders of our oversight committees in Congress were informed of the videos years ago and of the Agency’s intention to dispose of the material. [Yes, and what did they say about that?] Our oversight committees also have been told that the videos were, in fact, destroyed. I love the timing on this. Given the reporting, I’m guessing the Intell Committees were informed in 2003 (when Jane Harman wrote her CYA letter), and then informed they had been destroyed in 2006 (when it was too late to do anything about it). I had thought yesterday that the heads of the Intell Committees were told in 2005, during the debates on torture and the fallout from Abu Ghraib. But apparently the CIA kept mum about that.
Read more →

Everything Leaks

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At 7:39 on Wednesday evening, Pool Boy and his friends posted this interview with Dick Cheney.

Also on Wednesday evening–though at an unknown time–the NYT informed the CIA it would reveal the CIA had destroyed tapes of interrogations of high value Al Qaeda detainees.

The New York Times informed the C.I.A. on Wednesday evening that it planned to publish an article in Friday’s newspaper about the destruction of the tapes. Today, the C.I.A. director, General Michael V. Hayden, wrote a letter to the agency workforce explaining the matter.

Given this exchange from Dick in his Pool Boy interview…

Cheney said the [NIE] was released because “there was a general belief that we all shared that it was important to put it out — that it was not likely to stay classified for long, anyway,” he said.

Cheney said that “especially in light of what happened with respect to Iraq and the NIE on weapons of destruction,” officials wanted to be “upfront with what we knew.”

He said he agreed that was “the right call.” So he thought it might leak? “Everything leaks,” he said with a chuckle.

…I wonder whether Dick had already learned that the news of the destruction of the terror tapes had leaked?

Torture and Taping Timeline

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I’m just doing this because it’s like crack for Looseheadprop and she had a bad day yesterday. Lucky I had a lot of this lying around in a drawer somewhere.

Note, all the stuff on photographing detainees comes from this post, which is worth reading because I suspect it may become relevant to this discussion.

January 20, 2002: Bybee to Abu Gonzales memo specifying that common article 3 of the Geneva Convention does not apply to "an armed conflict between a nation-state and a transnational terrorist organization."

Late 2001 to early 2002: Ibn Sheikh al-Libi captured. After being tortured, al-Libi made up stories about Al Qaeda ties to Iraq.

January 2002: Supplemental Public Affairs Guidance on Detainees affirms Geneva Convention wrt media photographs.

March 2002: Abu Zubaydah taken into custody.

June 25, 2002: Moussaoui arraigned.

August 1, 2002: "Bybee Memo" (written by John Yoo) describes torture as that which is equivalent to :the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

September 11, 2002: Ramzi bin al-Shibh captured.

November 22, 2002: Abd al-Rahim al-Nashiri captured.

January 2003: Leonie Brinkema grants Moussaoui right to interview Ramzi Bin-al-Shibh by video.

February 2003: CIA claims to have informed Intell leadership of torture tapes’ destruction; though SSCI has no records.

March 2003: Public Affairs Guidance for Media Coverage of EPWs and Detainees allows photos (within guidelines) but prohibits photographs of custody operations or interviews.

September 10, 2003: Government refuses to let Moussaoui question Al Qaeda witnesses.

April 28, 2004: Hamdi and Padilla argued before SCOTUS. Paul Clement assures the Court that we don’t torture. 60 Minutes breaks Abu Ghraib story and proves he’s wrong.

March 2, 2004: Padilla interrogation. The tape of the interrogation would later disappear.

May 10 2004: Sy Hersh’s Abu Ghraib story.

June 3, 2004: Tenet resigns as DCI.

June 8, 2004: WaPo reports details of Bybee Memo.

June 17, 2004: Jack Goldsmith announces his resignation.

June 22, 2004: In an off-the-record briefing, Comey, Goldsmith, and Philbin renounce Bybee Memo.

June 24, 2004: Ted Olson announces his resignation, citing frustration that he did not learn of memos justifying legal decisions.

June 28, 2004: Hamdi decision.

September 22, 2004: Porter Goss becomes DCI.

November 2004: Steven Kappes resigns ; Jose Rodrigquez replaces him as Deputy Director of CIA for Operations. Rodriguez is reported to be the person who ordered the terror tapes’ destruction. Read more →

Absence of Torture Tape Librarian a Feature, Not a Bug

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I joked a few weeks ago, that the CIA needed a dedicated torture tape librarian. Well, it was no laughing matter. The NYT reports that the CIA intentionally destroyed the torture tapes of top Al Qaeda operatives.

The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Al Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about the C.I.A’s secret detention program, according to current and former government officials.

The videotapes showed agency operatives in 2002 subjecting terror suspects — including Abu Zubaydah, the first detainee in C.I.A. custody — to severe interrogation techniques. They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said. The C.I.A. said today that the decision to destroy the tapes had been made “within the C.I.A. itself,” and they were destroyed to protect the safety of undercover officers and because they no longer had intelligence value. The agency was headed at the time by Porter J. Goss. Through a spokeswoman, Mr. Goss declined this afternoon to comment on the destruction of the tapes.

Hmmm. Porter Goss. A partisan hack brought into CIA to destroy evidence. So he wasn’t tasked just to dismantle the agency?

I’m going to just throw some points out that you can think about when you read the article yourself–you really need to read the whole thing because it is breathtaking in its implications.

  • The timing of this leak was clearly intended to have one effect: to make it impossible for Bush to veto the bill prohibiting the CIA from torturing. Now let’s see if it accomplishes that goal.
  • Another note on timing? Paul Clement’s statements at SCOTUS yesterday were not proved wrong within 24 hours, as they were when he claimed, during the Padilla hearing, that we don’t torture. But this works about as well, I think, to make sure the Justices think long and hard about our gulag in Cuba.
  • The Judge in Moussaoui’s case, Leonie Brinkema, is not going to like this one bit; these are some of the tapes government lawyers claimed didn’t exist, and she’s already steaming mad that they misled her once.
  • General Hayden claims the leaders of Congressional Oversight committees were briefed. Who? Assuming they were briefed in 2005, it would be Pat Roberts and Crazy Pete Hoekstra, both up for re-election next year. Were Jello Jay and Jane Harman also briefed? Also–I presume they briefed these folks on the destroyed evidence in 2005, right in the middle of debates on torture. Any wonder why they didn’t brief Congress as a whole? Read more →

John Bolton Time Warp

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John Bolton, July 21, 2004

Finally, the world is safer today than one year ago because of an event
unprecedented in modern history: after years of isolation and being caught up
in a web of sanctions, the leader of a regime made a simple, but profound
strategic choice he came to the conclusion that his pursuit of weapons of mass
destruction made his country and his regime not more, but less secure. It is
not just the outside world that has benefited.

[snip]

Colonel Qhadadfi has made a strategic choice to put his people before his unjustified fears of a U.S. invasion.

John Bolton, December 5, 2007

Second, the NIE is internally contradictory and insufficiently supported. It implies that Iran is susceptible to diplomatic persuasion and pressure, yet the only event in 2003 that might have affected Iran was our invasion of Iraq and the overthrow of Saddam Hussein, not exactly a diplomatic pas de deux. As undersecretary of state for arms control in 2003, I know we were nowhere near exerting any significant diplomatic pressure on Iran. Nowhere does the NIE explain its logic on this critical point.

Not to mention the fact that Bolton claims to be ignorant of the pas de deux that the Iranians, at least, attempted in 2003. Read more →

Dick Vetted the Intelligence Two Weeks Ago

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The NYT provides more details about the intelligence collected in mid-2007 that confirmed the judgment that Iran suspended its nukes program back in 2003. In addition to the intercepted communications, there were also notes from Iran’s military leaders.

Most interesting–at least to those who obsess about the timing of all this–is that the intelligence analysts had to present the raw intelligence to Cheney.

In the end, American intelligence officials rejected that theory, though they were challenged to defend that conclusion in a meeting two weeks ago in the White House situation room, in which the notes and deliberations were described to the most senior members of President Bush’s national security team, including Vice President Dick Cheney.

“It was a pretty vivid exchange,” said one participant in the conversation.

Good to see the Vice President hasn’t lost his affection for twisting arms.

Here’s how this looks in our big timeline: Read more →

John Bolton and the IC’s New Sourcing Rules

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John Bolton–and crazy nutters like him–are complaining that the NIE must be wrong because it was written by people who used to be at State.

Well, I think it’s potentially wrong, but I would also say, many of the people who wrote this are former State Dept employees who during their career at the State Dept never gave much attention to the threat of the Iranian program. Now they are writing as (fingers quote) ‘members of the intelligence community’ the same opinions that they’ve had four and five years ago.

Bolton’s talking about Thomas Fingar, who held one of the top two positions at INR through the period when Bolton was fighting with INR at State. And he’s talking about Christian Westermann, whom Bolton tried to have fired because Westermann wouldn’t approve a Bolton speech on Cuba that made completely undocumented claims.

That in and of itself should warn you that Bolton is rehashing old State Department fights. But when you look at the nature of Bolton’s previous dispute with Westermann, it gets more interesting. Read more →

NIE Timeline, Take Three

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This is a compilation of the several timelines I–and others–have done so far on the NIE.

November 2006: NIE "completed"

January 5, 2007: John Negroponte resigns as DNI, reportedly because of fight over NIE; Negroponte would move to become a top official at State

January 11: US takes six Iranians in custody after a raid on a diplomatic building in Irbil, Iraq

February 2007: NIE completed; Cheney objecting to content

February 7: Iranian Revolutionary Guard General Ali Reza Asgari arrives in Turkey; he disappears there, and is presumed to have defected or been kidnapped; in March he was reported to be cooperating with western intelligence

April 26: Thomas Fingar announces NIE will be delayed due to Ahmadinejad’s demagoguery

May 12: Cheney meets with Saudi Arabia

July 2007: Intelligence community intercepts communications that verify claim Iran’s nuclear program remains suspended; Senior Administration Officials briefed

August 2007: Bush claims he learned new intelligence exists

August 9: Bush substitutes the claim that Iran was seeking nuclear technology for earlier claim that they were seeking nukes. (h/t Froomkin)

They have expressed their desire to be able to enrich uranium, which we believe is a step toward having a nuclear weapons program. That, in itself, coupled with their stated foreign policy, is very dangerous for world stability. . . . It’s a very troubling nation right now.

August 29-30: Six nuclear warheads "accidentally" get flown from Minot AFB to Barksdale AFB in Louisiana

September 6: Israel strikes site in Syria

October 2007: BushCo considers spiking the NIE Read more →