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 →

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.

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 →

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.

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. 

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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.

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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Blackwater’s Nay-Sayer in HPSCI: Crazy Pete Hoekstra

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You know how Crazy Pete Hoekstra has led the chorus of those who claim Leon Panetta should never have briefed Congress on the secret assassination squads, that the program in question was not that big a deal? To his credit, he’s doing it even now that Blackwater’s role has been revealed.

“I think there was a little more drama and intrigue than was warranted,” said Representative Peter Hoekstra of Michigan, the top Republican on the House Intelligence Committee.

Um, yeah. It all makes sense why Hoekstra would care about Congressional oversight when the CIA shoots down missionaries but not when CIA pays Blackwater’s mercenaries to assassinate its enemies. 

Hoekstra, of course, is very closely tied (and financially reliant upon) the Prince and DeVos families. What he says about investigations into Erik Prince’s company should never be taken as credible.

I will say this though. As we get further and further along, the design of the HPSCI investigation into all this–including the inclusion of that missionary plane to get Crazy Pete’s buy-in–looks smarter every day.

Did I Say the Daily Beast Story Was BS?

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Because it was. They were trying to hide the fact that the company of their former ExecDir, Buzzy Krongard and Blackwater, is the gimmick behind the CIA’s assassination program.

The Central Intelligence Agency in 2004 hired outside contractors from the private security contractor Blackwater USA as part of a secret program to locate and assassinate top operatives of Al Qaeda, according to current and former government officials. 

Executives from Blackwater, which has generated controversy because of its aggressive tactics in Iraq, helped the spy agency with planning, training and surveillance. The C.I.A. spent several million dollars on the program, which did not capture or kill any terrorist suspects.

The fact that the C.I.A. used an outside company for the program was a major reason that Leon E. Panetta, the new C.I.A. director, became alarmed and called an emergency meeting to tell Congress that the agency had withheld details of the program for seven years, the officials said.

Only of course they didn’t mention Buzzy Krongard, not once, in the whole article. Didn’t mention that he left the CIA before he got this contract. (He was probably contracted by Dusty Foggo, but whatever.)

If I had to guess, I’d say the Dems are closing ranks around Panetta. 

I don’t love Panetta–he has humiliated himself thus far. But hey, if those trying to reform the Company join with Panetta and push him, we might make some progress.

The Errors of Telling of Leon Panetta’s Error

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By my count there are 27 paragraphs in the Daily Beast’s breathless attempt to un-ring Leon Panetta’s bell for him–to tell a story in which Panetta’s revelation that the CIA had an assassination program it had not briefed Congress on was all a big misunderstanding. It takes novelist Joseph Finder, who wrote this story, until paragraph 23 to reveal the context of HPSCI’s reaction to Panetta’s briefing on the program that hadn’t previously been briefed.

More seriously, this controversy has given ammunition to congressional efforts to broaden CIA briefings. Instead of allowing the CIA to limit disclosure of the most sensitive, most highly classified stuff to just the “Gang of Eight”—the leaders of those committees and of the House and Senate—they want to require the CIA to brief the full membership of the intelligence committees.

Somehow, Finder neglects to provide his readers that information where it chronologically makes sense–between the time Panetta briefed Congress on June 24 …

On June 23, in the course of a routine briefing by the head of the National Counterterrorism Center, Panetta first learned about the assassination squads. Alarmed, he terminated the program at once and called the chairman of the House Intelligence Committee, Rep. Silvestre Reyes (D-TX). He told Reyes he’d discovered something of grave concern, and requested an urgent briefing for the House and Senate intelligence committees as soon as possible. Less than 24 hours later, he was on the Hill, "with his hair on fire," as a Republican member of the House committee put it. “The whole committee was stunned,” said Rep. Anna G. Eshoo (D-CA).

And when he describes them leaking the letter and turning this into a big stink.

Afterward, seven Democratic members of the House Intelligence Committee sent Panetta an indignant letter: “Recently you testified that you have determined that top CIA officials have concealed significant actions from all members of Congress, and misled members for a number of years from 2001 to this week," the Democratic lawmakers wrote. They demanded he “correct” his statement back in May that the CIA does not mislead Congress.

Ten days later, one of them leaked the letter.

That is, Finder totally neglects to mention the full chronology, which looks something like this:

June 24: Panetta’s briefing on this program

June 26: HPSCI passes a funding authorization report expanding the Gang of Eight briefings

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