CNN Helps Mike Hayden Uncork A Fine Whine

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Michael Hayden is at it again. This time it is CNN that has donated the bandwidth to his continued petty whining about the release of the OLC Torture Memos. After acknowledging that the matter is over and now simply a matter of history, Hayden, in a “Special to CNN Comment” bearing today’s date, says:

I know that the story has moved on, that the outline of the journalistic narrative has been set, and that the “first draft” of history has been just about finalized. Before the ink dries though, I would like to offer at least a footnote.

And this footnote has to do with President Obama’s decision in April to release opinions drafted by the Department of Justice that detailed the CIA’s interrogation program for high-value al Qaeda detainees.
…
Make no mistake. The decision to release those memos in April was a political one, not a legal one — a question of choice rather than necessity.

This was a deliberate decision and, if it is to be defended, history (and journalism) should demand that it be defended on those grounds and not on some hapless “the judge was going to make me do it” argument.

As I said, this is all now a footnote, and Hellerstein’s September decision was barely remarked in the public discourse.

But the good people of CIA follow this more closely than most and, like the good operators and analysts that they are, they know what they see and they know what it means.

“Make no mistake”, just as the decision to release the torture Memos is old news, so is Hayden’s objection. He made it abundantly clear, on many records, before, during and after the Memos’ release. Why did CNN decide that giving Hayden a prime “special” opportunity to continue the same relentless petulance was a good idea? Where is the CNN “Special Comment” on the decision of the British High Court that heroically proclaimed:

It cannot be suggested that information as to how officials of the U.S. government admitted treating (Binyam Mohamed) during his interrogation is information that can in any democratic society governed by the rule of law be characterized as ’secret’ or as ‘intelligence’…

Where was the CNN “Special Comment” on US Federal Judge Jeffrey White who trumpeted the public’s “right to know” what their government has done in their name in a very similar FOIA case?

Why is it that CNN has special space available for Michael Hayden, a man centrally involved in the alleged Bush war criminal misconduct, to rehash his same old self serving petty whining from months ago, but not for the current news that actually supports the rule of law in a democracy?

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DOJ Set To Shuck And Jive Judge White In EFF FOIA Case

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Just two days ago we were discussing the status of EFF v. ODNI, the FOIA case in NDCA where disclosure is being sought of documents evidencing the telecom lobbying on immunity for corporate participation in Bush’s surveillance program. As you will recall, Judge White had denied the various stay attempts put forth by the government (and one they had not even made yet) and ordered disclosure on or before 4 pm PST today, October 16.

Josh Gerstein at Politico, who has done an excellent job following this case, has some news of what the government plans to do:

The Obama administration may be on the verge of a major concession in a long-running legal battle over records about so-called telecom immunity.

An email obtained by POLITICO shows that the Obama Administration is preparing for the possible release of some details of the Bush Administration’s lobbying for legislation giving telecommunications companies immunity from lawsuits over their involvement in warrantless domestic wiretapping.

But even if they do release those details, the administration may press on with a legal battle to keep secret the identities of the companies involved in the program.

And what will the government be oh so graciously disclosing? A lot of stuff that, while responsive to the FOIA request, is certainly not responsive to the core of the request.

“The Executive Branch will be providing to the Electronic Frontier Foundation in its FOIA suit a large number of e-mail communications between House staffers and Executive branch employees regarding the legislation involving immunity to telecommunications companies enacted as part of the [revised Foreign Intelligence Surveillance Act] legislation last year,” Nathan wrote.

In short, they are not going to disclose the identities of the telecom companies and their employees which sought immunity. And, predictably, the government relies on the well worn claptrap that:

Disclosure of such information would assist our adversaries in drawing inferences about whether certain telecommunications companies may or may not have assisted the government in intelligence-gathering activities,

But the court has already expressed its position on this argument: Read more →

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Judge White Thumps The DOJ On EFF FOIA Case

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Well, you just don’t see this every day. As MadDog noted in comments last night, Judge Jeffrey S. White has entered a new order in NDCA denying the government’s request for a stay pending appeal in the telco documents FOIA case brought by the EFF. And he did it before the government ever even really asked for a stay!

This is the case Marcy discussed in The Blob That Passed Telecom Immunity after the internets went code red over an article in Wired that the Feds supposedly admitted telcos were an appendage of the government. To recap, the EFF filed a FOIA case against the ODNI seeking government documents evidencing telecom lobbying on immunity for corporate participation in Bush’s surveillance program. On September 24, 2009, Judge White found in favor of plaintiff EFF and ordered the records disclosed on or before October 9. On September 30, the government asked White for a stay so they could contemplate an appeal; White refused their request.

The EFF describes what transpired next in their press release:

On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.

Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.

Get that? The government once again did not request a stay from Judge White. And he went ahead and ruled against them as if they had. See, I told you there was a reason they tried to bypass Judge White the first go around. I guess Vaughn Walker is not the only judge in NDCA that is fed up with the disingenuous pleading and concealment of unconstitutional activity the government relentlessly spews forth.

Judge White’s five page Order has some really sweet passages:

There has been no material change in circumstances and the Court is still not persuaded that it should exercise its discretion to stay its directive that Defendants disclose the disputed documents pending a decision whether or not to appeal the Court’s original Order. At this point, because a notice of appeal has been filed, a properly noticed motion for a stay pending appeal would have been appropriately filed before this Court. See Fed. R. Civ. P. 62(c). However, such a motion is not before the Court and Defendants have repeatedly reiterated that they have not filed such a motion. Regardless, the Court will address the substantive factors in ruling on such a motion in order to obviate the need for the parties to return once again to this Court before addressing the issue of a stay pending appeal.

White is tired of being jerked around by the disingenuous antics of Obama’s DOJ and he decided to move them along to the 9th; and why not, they are going there anyway, no reason to let them delay and obfuscate on the way.

Then White sets the table for dissection of the DOJ specimen: Read more →

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Obama DOJ Declines To Support Legality Of Bush Surveillance Program

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Hot on the heels of the Telephone Immunity Secrecy Blob, today the 2nd Circuit Court of Appeals heard oral argument on Wilner v. NSA and DOJ, a FOIA case wherein the Center for Constitutional Rights is seeking disclosure of evidence of clandestine surveillance of attorney-client conversations between detainees and their counsel. The CCR issued this press release today:

The Court of Appeals heard arguments today in the Center for Constitutional Rights (CCR) warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argued that the executive branch must disclose whether or not it has records related to wiretapping of privileged attorney-client conversations without a warrant.

Said Kathryn Sabbeth, Assistant Professor of Law at the University of North Carolina at Chapel Hill School of Law, who argued the case, “No argument could be made that targeting American lawyers on American soil to obtain information about their clients was legal, and indeed when counsel for the government was pressed for an explanation he offered none.”

The rights attorneys appealed the government’s Glomar assertions, meaning its refusal to either confirm or deny the existence of records sought in Freedom of Information Act (FOIA) litigation relating to the NSA warrantless wiretapping program and surveillance of attorneys representing detainees at Guantánamo.

“Our work with our clients may have been deeply compromised by illegal surveillance carried out by the last administration,” said Shayana Kadidal, Senior Managing Attorney of the CCR Guantánamo Global Justice Initiative. “The new administration has no legal basis for refusing to come clean about any violations of attorney-client privilege by the NSA.”

During arguments, the government’s counsel stated, “We take no position on the legality of the TSP,” referring to the Bush administration’s Terror Surveillance Program.

The case is a FOIA lawsuit on behalf of 23 attorneys, including CCR staff attorneys Gitanjali S. Gutierrez and Wells Dixon, law professors, and partners at prominent international law firms, who believe they may have been the subjects of the NSA’s warrantless wiretapping program authorized by the prior administration shortly after September 11, 2001. CCR, the Institute of Public Representation at Georgetown University Law Center and the Chicago law firm Butler Rubin Saltarelli & Boyd filed the case in the U.S. District Court for the Southern District of New York on May 17, 2007. The district court ruled the NSA could refuse to say anything either confirming or denying the existence of any related materials because to do so “would reveal information about the NSA’s capabilities and activities.”

Plaintiffs argued Read more →

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Crazy Pete Hoekstra Remembers the Separation of Powers

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Omigod did Crazy Pete just accuse DOJ officials of lying?!?!?!?!?! But I thought only Nancy Pelosi did that!!!

Actually, he’s absolutely right on this count. (h/t scribe) If DOJ officials refuse to testify under oath that the Bush Administration has already lied to Congress about, then I’d say their testimony should not be considered valid.

A House intelligence committee meeting was abruptly terminated when Justice Department officials refused to be sworn in before briefing the lawmakers.

[snip]

Justice Department spokeswoman Tracy Schmaler said Justice employees "have previously briefed committee staff on this matter and were prepared to provide a similar informal briefing to committee members."

[snip]

Rep. Peter Hoekstra, R-Mich., the top Republican on the committee, questioned Wednesday why the Justice officials refused to be sworn in. "Why is Attorney General Eric Holder afraid of having Justice Department employees be required to tell the truth?" Hoekstra said.

Obviously, Crazy Pete is a raging hypocrite on this score, having not been bothered in the least by Bush officials’ lies before Congress, to say nothing of their complete unwillingness to testify. 

But it is a fair point.

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Torture Is Counterproductive To Interrogation Results!

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As Fatster noted, there is a new report out from Pamela Hess of the AP relating the conclusions of a paper, published in the scientific journal Trends in Cognitive Science: Science and Society, by Irish professor and researcher Shane O’Mara, on the deleterious effects of the procedures employed by the Bush Administration torture program:

The CIA’s harsh interrogation program likely damaged the brain and memory functions of terrorist suspects, diminishing their physical ability to provide the detailed information the spy agency sought, according to a new scientific paper.

The paper scrutinizes the harsh techniques used by the CIA under the Bush administration through the lens of neurobiology. Researchers concluded that the harsh methods were biologically counterproductive to eliciting quality information because prolonged stress harms the brain’s ability to retain and recall information.

Gee, who could have expected? Read the whole article, it is worth it and not that long. I applaud Professor O’Mara for doing the work and publishing the paper (if anyone is able to find a copy on the net, please leave a link in comments). But the basic conclusions have been known maxims in the interrogation field for a very long time in one form or another. Take this quote from the article for instance:

He warned that this could lead to brain lobe disorders, making the prisoners vulnerable to confabulation – in this case, the pathological production of false memories based on suggestions from an interrogator. Those false memories mix with true information in the interrogation, making it difficult to distinguish between what is real and what is fabricated.

This root concept and knowledge as to suggestibility and contamination of information gleaned from subjects has been around for a couple of decades as anybody familiar with the work of Dr. Gisli Gudjonsson is aware. Heck the very basics of suggestibility, and problems associated therewith, are even alluded to in the seminal law enforcement interrogation treatises of Inbau, Reid and Buckley Criminal Interrogation and Confessions, the first volume of which was published in the 60s.

And therein lies the problem. Where has the media been on this? Dr. O’Mara’s paper, again to be heavily applauded for apparently specifically addressing the Bush torture modalities and resultant physiological effects, may be new; but the insanity of the use by the Bush Administration of those modalities, for the purpose claimed, has been crystal clear all along. The people advocating these programs had to be willfully, wantonly and intentionally ignorant of Read more →

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The Sexing-Up Sickness

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One of the British flacks who helped us lie our way through the Iraq war is now trying to claim disability from the stress of telling those lies. (h/t Tom Ricks)

A Ministry of Defence press officer has claimed that being forced to tell lies about the war in Iraq has left him with post-traumatic stress disorder.

John Salisbury-Baker, 62, who spoke for the Armed Forces in the North East, said that he had struggled to cope with a stress-related condition for the past two years. He is based at the Imphal Barracks in York.

He is pursuing a claim for disability discrimination on the grounds that the stress of the job has effectively left him physically disabled.

Mr Salisbury-Baker is expected to tell a tribunal panel later this year that he had to defend the “morally indefensible” when telling the media that army vehicles such as Snatch Land Rovers were capable of withstanding roadside bombs.

I’m sure this guy feels terrible. He should. But he has a really bizarre sense of obligation. I’m sure he was ordered to lie. But that’s slightly different from "having to." It’s just a pretty way of saying "choosing to avoid the repercussions of a moral act." 

A moral act that would have left him far healthier, mentally, I’m guessing.

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Panetta’s Threats

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I’m trying to find it, but some weeks back, there was a report of Rahm and Leon Panetta having a very contentious very public meal in DC. Which is what I assume this passage from the ABC story reporting (again) that Panetta may be on his way out at CIA refers to.

According to intelligence officials, Panetta erupted in a tirade last month during a meeting with a senior White House staff member. Panetta was reportedly upset over plans by Attorney General Eric Holder to open a criminal investigation of allegations that CIA officers broke the law in carrying out certain interrogation techniques that President Obama has termed "torture."

Assuming that the senior staffer was Rahm (always a good guess when tirades are involved), what does that say about the rest of the article (aside from the fact that the description of Panetta using "salty language" without reporting that it was probably a two-way flood of "fucks" suggests some bias)?

The article itself reports three kinds of complaints Panetta has regarding his position:

  • The imminent appointment of a prosecutor to investigate torture and dealing with the Democrats in the House
  • Panetta’s subordinate position with respect to Dennis Blair
  • Panetta’s discomfort with "with some of the operations being carried out by the CIA that he did not know about until he took the job"

Of note, those are unlike things. Panetta’s frustration with the torture investigation and his former colleagues is undoubtedly related. But his pique at being bureaucratically bested by Blair is completely different. And the discomfort about ongoing operations–suggesting he’s less willing to push the limits than the "former top US intelligence official" reporting this complaint is another kind of problem altogether.

In other words, it’s unclear from the reporting whether Panetta’s complaining because he has been too protective of CIA, of his own turf, or of the law. 

Now add that range of complaints in with some of the guarantees from those who might be passing on mere observations or might be attempts to create the reality it claims to observe. In particular, I’m particular intrigued by the report that one of the runners-up to Panetta in getting the position is already being briefed to take over appearing in the same article citing a former high ranking intelligence officer.

"Leon will be leaving," predicted a former top U.S. intelligence official, citing the conflict with Blair. 

Read more →

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Scahill on the Blackwater Rent-an-Assassin Service

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As expected, Jeremy Scahill has a piece up on the revelation that CIA was using Blackwater as a Rent-an-Assassin service. He corrects the silence about the role of Buzzy Krongard in both the NYT and WaPo pieces on this.

In a 2006 interview for my book, Blackwater: The Rise of the World’s Most Powerful Mercenary Army, Krongard said that the company was hired to provide security for the CIA in Afghanistan. "Blackwater got a contract because they were the first people that could get people on the ground," Krongard said. "The only concern we had was getting the best security for our people. If we thought Martians could provide it, I guess we would have gone after them."

The relationship between Krongard and Prince apparently got chummier after the contract was signed. One former Blackwater executive said in 2006, "Krongard came down and visited Blackwater [at company headquarters in North Carolina], and I had to take his kids around and let them shoot on the firing range a number of times." That visit took place after the CIA contract was signed, according to the former executive, and Krongard "may have come down just to see the company that he had just hired."

And he lists a number of other CIA guys who went on to work for Blackwater. (Sort of makes you wonder how many of those people were used as sources for Finder’s propaganda piece yesterday, since a number of them would qualify as "very senior, recently retired CIA officials, clandestine-service officers.")

Scahill’s most important point (one he made with the help of an interview with Jan Schakowsky, who is in charge of this investigation) was that this program–and Cheney’s secrecy about it–meant Blackwater was a more integral part in crafting the Bush era counter-terrorism strategy than Congress.

"What we know now, if this is true, is that Blackwater was part of the highest level, the innermost circle strategizing and exercising strategy within the Bush administration," Schakowsky told The Nation. "Erik Prince operated at the highest and most secret level of the government. Clearly Prince was more trusted than the US Congress because Vice President Cheney made the decision not to brief Congress. This shows that there was absolutely no space whatsoever between the Bush administration and Blackwater." 

Yeah, I can see why that would piss off Congress.

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CIA’s Blackwater Circular Firing Squad

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While we wait for Jeremy Scahill’s piece on this today (which will surely tell a more complete story than the NYT and WaPo‘s spook reporters did), I want to follow up on the two posts I did yesterday, obviously based on leaks and counter-leaks, to sort out what we know of the plans to use Blackwater as the US assassination squad. There are two parts to the story: first, that CIA invented an assassination program shortly after 9/11. And then, that CIA gave a contract to Blackwater for the program in 2004. Here are the dates we know of.

2001: Presidential finding allowing assassinations of al Qaeda, assassination squads set up

2002: CIA sets up contract for Blackwater to "provide security" for CIA’s Afghan station

2002: Dick Cheney tells CIA not to brief Congress on assassination plans

2002: Cofer Black ousted from CTC

2004: CIA terminates program, then gives contract to Blackwater to do assassination squads

September, 2004: Buzzy Krongard resigns as CIA’s Executive Director (replaced by Dusty Foggo)

February 2005: Cofer Black becomes Vice Chairman of Blackwater

Fall 2007: Krongard joins Blackwater advisory board

September 2007: Nisour Square massacre

June 23, 2009: Panetta learns of active assassination squad program, cancels it

June 24, 2009: Panetta briefs Congress

Now, a couple of points about this. The stories coming out today want to focus on 2004, when Blackwater supposedly got the contract to do this. If so, then what did Cheney order CIA not to tell Congress about in 2002? It may be that they’re using the term "contract" loosely to hide an earlier arrangement, given that they admit to NYT there was never really a contract.

Officials said the C.I.A. did not have a formal contract with Blackwater for this program but instead had individual agreements with top company officials, including the founder, Erik D. Prince, a politically connected former member of the Navy Seals and the heir to a family fortune. 

I guess if you’re doing all this without contracts, it makes it a lot easier for it to take four months before the Director of the CIA learns about it. But isn’t that one of the nightmares we’ve all been waiting for, as we outsource our intelligence? That the privatized spooks will take over and continue programs without telling the political appointees? Hell, that the privatized spooks will continue to work for the last guy who was President and not the current one?

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