The Scope of the SSCI Investigation and Where It Leads

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Honest. I was going to write this post today or yesterday or tomorrow even before Rachel Maddow said people would be parsing her interview last night with Sheldon Whitehouse closely (here’s the full interview).

Back in February, I was very skeptical whether a DiFi-led SSCI investigation into torture would be a rigorous investigation. I owe DiFi an apology, because by all appearances this investigation is time-consuming, demanding, and productive. The Senate Intelligence Committee has been maintaining an unbelieveable pace of closed hearings this year–often two a week–many of which must deal with this investigation (though some clearly deal with other intelligence issues such as the warrantless wiretapping program). At least per Rachel’s comments in her interview with Senator Whitehouse, the committee won its squabble with CIA to get unredacted cables from the field. And as a result of the hearings, Sheldon Whitehouse has come out and said "no further actionable intelligence" was gotten through waterboarding Abu Zubaydah. Thus far, this is not the weasely whitewash we’ve come to expect from SSCI (though it remains to be seen whether Kit Bond and friends can politicize whatever report we get out of it–and whether we get a report at all). So I apologize to DiFi for my doubts.

I wanted to look at the scope and the direction of this investigation–at least what we know. Both at the beginning, and now, SSCI has said the investigation covers three things:

  • Whether detentions and interrogations complied with DOJ authorizations
  • Whether the interrogations gained valuable intelligence or not
  • Whether SSCI was kept properly informed

Here’s how Whitehouse described the questions they’re asking in his Senate speech the other day:

I see three issues we need to grapple with. The first is the torture itself: What did Americans do? In what conditions of humanity and hygiene were the techniques applied? With what intensity and duration? Are our preconceptions about what was done based on the sanitized descriptions of techniques justified? Or was the actuality far worse?

Were the carefully described predicates for the torture techniques and the limitations on their use followed in practice? Or did the torture exceed the predicates and bounds of the Office of Legal Counsel opinions?

[snip–Whitehouse basically interjects the same argument I made here, that Panetta’s declaration makes it clear the torture did exceed OLC bounds]

The questions go on: What was the role of private contractors? Why did they need to be involved? And did their peculiar motivations influence what was done? Ultimately, was it successful? Did it generate the immediately actionable intelligence protecting America from immediate threats that it had been sold as producing? How did the torture techniques stack up against professional interrogation?

Well, that is a significant array of questions all on its own, and we intend to answer them in the Senate Intelligence Committee under the leadership of Chairman Feinstein, expanding on work already done, thanks to the previous leadership of Chairman Rockefeller.

As I noted, both Whitehouse and I have pointed out that Panetta’s declaration by itself makes clear that the torture exceeded the authorizations it had gotten from OLC–but we already knew that from the CIA itself. And as Whitehouse has made clear, and I have made clear, we already know the program was ineffective–but we already knew that from the CIA itself. And (though Whitehouse doesn’t focus on this aspect of the investigation), we know that CIA did not brief SSCI the way it said it did–nor in the manner it was legally obliged to do. We know that, too, from the CIA itself.

So where does that lead us? That’s why this exchange from Rachel’s interview with Whitehouse last night is so important.

Maddow: The way you’ve described that makes me want to ask a question that no one’s been able to tell me–and I’ve been asking a lot of people. The remit of what the intelligence committee is looking at right now–looking at what happened to High Value Detainees, millions of pages of documents, succeeded in getting agreements to get stuff completely unredacted. We know it’s going to be a big comprehensive look at what happened to those High Value Detainees. Does it only look at what the CIA did, or will it look at the chain of command, whether or not instruction came from the White House, the Office of the Vice President beyond the Intelligence Agency?

Whitehouse: We’re not at the stage yet, in the investigation, where those chain of command issues are yet raised. I hope very much that it will. I believe it implicates chain of command issues. And I think that that’s a critical question.

Maddow: But it’s not what the intelligence committee is looking at right now and we should not expect that will be in the intelligence committee’s report when it comes out in six months or so?

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Did Somebody Improperly Make Torture a Special Access Program?

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I wanted to take one last look at the Panetta declaration, this time with respect to what it says about classifying torture (also see Mary’s long comment and pmorlan’s comment on this topic).

NSC Officials Made This a Special Access Program, Not Director of CIA

Panetta tells a funny story about how (but not when) the torture program became a special access program.

Section 6.1(kk) of the Executive Order defines a "special access program" as "a program established for a special class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level." Section 4.5 of the Order specifies the U.S. Government officials who may create a special access program. This section further provides that for special access programs pertaining to intelligence activities (including special activities, but not including military operations, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of the CIA.

[snip]

Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the senstivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. As the executive agent for implementing the terrorist detention and interrogation program, the CIA is responsible for limiting access to such information in accordance with the NSC’s direction. [my emphasis]

See the funny bit? The first paragraph says the Director of the CIA "shall" "exercise" the function of creating special access programs pertaining to intelligence. But then the very next paragraph says "NSC officials established a special access program." One paragraph says the Director of CIA has to do it, but the next paragraph admits someone else did it. 

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Sheldon Whitehouse: “No Further Actionable Intelligence Was Obtained” from Abu Zubaydah by Waterboarding

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Sheldon Whitehouse gave a barnburner of a speech last night, in which he described how egregious Dick Cheney’s lies about torture have been.

The speech goes further than President Obama’s and Russ Feingold’s and Carl Levin’s calls on Cheney’s lies in two ways. First, those other calls focused on whether the documents Cheney wants declassified actually say what he claims they say; Whitehouse focused on whether Cheney’s more basic claims about torture are true. And second, Whitehouse here focuses not on whether we needed waterboarding to get intelligence (Obama, for example, said, "the public reports and the public justifications for these techniques — which is that we got information from these individuals that were subjected to these techniques — doesn’t answer the core question, which is:  Could we have gotten that same information without resorting to these techniques?), but whether we actually got any useful intelligence from the methods at all. 

Whitehouse says that no further actionable intelligence was gained through the torture used on Abu Zubaydah after he was turned over to the CIA contractors for good. [Note: this transcript is my own–I found the Congressional Record copy after I did this. I’ve edited in response to Andersonblogs’ comment to take out ellipses and put in emphasis.]

So for a third time he was returned to the FBI and CIA agents, again for professional interrogation, but by now he had been so compromised by the techniques that were applied to him that even they were unsuccessful in getting further information. And as best as I have been able to determine, for the remaining sessions of 83 waterboardings that have been disclosed as being associated with his interrogation, no further actionable intelligence was obtained. And yet the story has been exactly the opposite. The story over and over has been that once you get these guys out of the hands of the FBI and military "amateurs" and into the hands of these "trained CIA professionals" who can use these tougher techniques, that’s when you get the information. In this case at least, the exact opposite was the truth. And this was a case cited by the Vice President by name. 

From that, Whitehouse makes appeals to his colleagues not to believe they’ve been told, just as Bob Graham appealed to his colleagues not to believe what they’d been told about the Iraq intelligence.

I want my colleagues and the American public to know that, measured against the information I’ve been able to gain access to, the story-line that we have been led to believe, the story-line about waterboarding that we have been sold, is false in every one of its dimensions, and I ask that my colleagues be patient and be prepared to listen to the evidence when all is said and done before they wrap themselves in that storyline.

One more point about this. Read more →

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Gravely Damaging Intelligence Gaps

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Just two or three more bits on this Panetta declaration and the related Vaughn Index (Part One, Part Two).

Before he insisted in his declaration, implausibly, that he wasn’t trying to hide embarrassing information that might show legal wrong-doing, Leon Panetta gave this general explanation for why he couldn’t release this information:

I want to emphasize to the Court that the operational documents currently at issue contained detailed intelligence information, to include: intelligence provided by captured terrorists; intelligence requirements that CIA prioritized at specific points in time; what the intelligence community did not know about enemies in certain time frames, i.e., intelligence gaps;

[snip]

Much information in the documents is intelligence that was being provided to the field and intelligence that was being gathered from the interrogations. This sensitive intelligence provides important insight into what the CIA knew–and did not know, i.e. intelligence gaps–at specific points in time on specific matters of intelligence interest. I have determined that the disclosure of intelligence about al Qai’da reasonably could be expected to result in exceptionally grave damage to the national security by informing our enemies of what we knew about them, and when, and in some instances, how we obtained the intelligence we possessed.

Remember, earlier this year the ACLU and CIA agreed that the Agency could exclude raw intelligence cables from this FOIA response.

In response to earlier orders, the CIA originally identified appropximately 3,000 documents potentially responsive to paragraph 3 of the Court’s April 20, 2009 Order. Those 3,000 records included "contemporaneous records," which were created at the time of the interrogations or at the time the videotapes were viewed, "intelligence records," which do not describe the interrogations but contain raw intelligence collected from the interrogations, "derivative records," which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations that, upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.

With respect to paragraph 3 of the April 20, 2009 Order, the parties jointly propose that the Government address the contemporaneous and derivative records, but not the intelligence records or the other records that ultimately proved to be unrelated to the interrogations or the videotapes. [my empahsis]

Nevertheless, even before Panetta says he can’t turn over this material because it would reveal the identities of our counterintelligence officers and the location at which we conducted these interrogations, he says he can’t turn over this material because it’ll reveal the intelligence that went into and came out of the interrogations, even though this is not the primary record of intelligence gathered in the interrogations.

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The CIA’s Cherry-Pick

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Update, July 20: As this post explains, the CIA claims that the gaps in production come from the presence of "derivative" cables that were permissibly withheld from the Vaughn Index.

In footnote 2 of his declaration, Leon Panetta explains that eight of the documents included in the Vaughn Index (Part One, Part Two) he turned over to Judge Hellerstein represent deliberative process, so can’t be turned over.

 As described in the attached Vaughn index, documents 28, 54, 56, 57, and 59-62 contain deliberative process privileged information; and documents 59 and 60 contain attorney-client communications and attorney work product.

Given the report that interrogators were cabling HQ on a daily basis for approvals for interrogation techniques, I was interested in which of the cables included in the index of all torture tape related documents the CIA previously identified would be labeled "deliberative process"–it’s a way to identify which of the cables included actual discussion about techniques. I was particularly interested in whether any of the more remarkable cables–the 28-page cable from Field to HQ written on May 6, 2002, or the 4-page cable from HQ to Field sent on May 28, 2002–were included among these deliberative documents.

Those two cables–which, I have speculated, might be key cables in the early decision-making on torture–were not included among the selection of all the documents that CIA identified "for review for potential release." In fact, the only deliberative cable included among those that Judge Hellerstein will now review is one dated August 20, 2002, long after the CIA got formal approval to use torture techniques. (In addition, the first of the two interrogation logs–the one dated April 13, 2002–is considered to include deliberative records, though the second one–dated August 4, 2002–does not.)

But I don’t think that was an accident.

The CIA was, as I understand it, ordered to give over a selection of these. Sometimes, agencies are ordered to give over every tenth document out of a total collection, but I don’t believe they were here. Sometimes, agencies will simply pull every 10th document, and explain if they deviate from that pattern. But the CIA appears to have submitted a more random selection (though, they supplied a greater percentage of the later documents talking about the torture tape destruction). By comparing the total index with the Vaughn index, though, we can get a sense of what the CIA did include. For most of the series of cables reporting to and from the field, the CIA submitted fairly regular cables–every 10, 11, or 12 cables. From June 22, 2002 through August 20, 2002, they appear to have submitted every 10 document, like clockwork (in addition to the handwritten log dated August 4). (It’s impossible to exactly identify a pattern from after that because so many of the cables are the same length, though it is possible that it sticks pretty close to the every tenth cable pattern.)

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Leon Panetta Kisses His Credibility Goodbye

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Well, that didn’t take long, for a Director of Central Intelligence to totally lose his credibility in the servitude of the institution. What has it been? Three, four months?

I’ll have more to say about Panetta’s declaration in the ACLU FOIA case tomorrow.  But for now, a little unsolicited advice for the spook-in-chief.

When you say, 

I also want to emphasize that my determinations expressed above, and in my classified declaration, are in no way driven by a desire to prevent embarrassment for the U.S. Government or the CIA, or to suppress evidence of unlawful conduct,

Yet the entire world knows–and the CIA has itself acknowledged–that the materials in question do, in fact, show evidence of unlawful conduct, and when you sort of kind of pretend that no one else knows what they all know–that the materials show evidence of unlawful conduct…

Then you look like a fool. 

A chump.

Like George Tenet, maybe, when he boasted of "slam dunk."

And then when you go on to say,

As the Court knows, some of the operational documents currently at issue contain descriptions of EITs being applied during specific overseas interrogations. These descriptions, however, are EITs as applied in actual operations, and are of qualitatively different nature than the EIT descriptions in the abstract contained in the OLC memoranda.

Then you’re just hoping we’re all bigger idiots than we really are.

Let me say this plainly. According to the CIA–the CIA itself–there’s a reason why the interrogations don’t resemble the "EIT descriptions in the abstract contained in the OLC memoranda." That’s because some cowboy probably named James Mitchell who was getting rich off of torture thought things would be more poignant–yes, the fucker actually said "poignant"–if he drowned Abu Zubaydah in gallons of water rather than sprinkling him like a daisy. There’s a reason why the descriptions of torture as it was applied is such a problem–and yes, is evidence of unlawful conduct.  And that’s because we know–we all know!!!!–that the torture began before the memos authorized it, and the torture exceeded what few guidelines John Yoo placed on it.

So don’t give me this crap about not trying to avoid embarrassment–unless you start admitting how damning this shit is. 

We know you’re trying to hide the evidence of criminal torture. Insisting, over and over, under oath, that that’s not what you’re doing isn’t convincing anyone. 

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On Jane Harman and NAO

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A number of you have sent this piece, reporting that Jane Harman is trying to shut down the National Applications Office.

[Harman] has introduced two bills that would shutter the Department of Homeland Security’s innocuously-named National Applications Office.

In the waning days of the Bush administration, DHS officials began implementing plans to use NAO to oversee the training of military satellites on domestic targets — with funding for the program tucked in last year’s stopgap funding funding bill.

To the surprise of some in Congress, DHS Secretary Janet Napolitano quietly inserted renewed funding for the program in the "classified annex" to the agency’s FY2010 budget.

Harman’s bill would eliminate the office — and a companion measure from Rep. Norm Dicks (D-Wash.) would completely de-fund NAO.

Glenn Thrush unfortunately ties Harman’s actions to the AIPAC-related wiretaps, which has led a number of people (including, perhaps, Thrush) to suggest she’s doing this solely because she’s smarting about being surveilled.

That’s unfortunate, because the surveillance is unrelated, and because the House Committee on Homeland Security–particularly its Chair, Bennie Thompson–has been taking a very proactive lead on this issue from the start. Harman, remember, chairs the Homeland Security Subcommittee on Intelligence, which makes her exactly the right person to oppose this provision put through in the funding bill’s classified annex.

Harman, Dicks, and Thompson are doing the right thing in opposing this. Thompson, in particular, has been pushing for some oversight on this for a long time. We should be applauding efforts to insist on that oversight.

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Cheney’s So-Called Recidivists

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There’s a number of impressions I get from the DOD "report" on the number of Gitmo detainees who have joined terrorists groups, including al Qaeda, since being released. First, while it appears to be what ABC billed it as–the report showing 14% of the people freed from Gitmo purportedly returning to the fight, the one that was used to scare the Senate into refuse funding for Gitmo–it looks fairly laughable. This is a DOD document, mind you, that has no originator or tracking information, and not even headers and footers. It sure doesn’t look to me like a finished report–it looks like some guys’ notes.

Then, look at the dates. The list confirms a point Lawrence O’Donnell made when he was debating Liz Cheney. If anyone is responsible for freeing these guys, it’s Dick Cheney and his buddies. The sole 2009 date I see is this one:

Abu Sufyan al-Azdi al-Shihri–repatriated to Saudi Arabia in November 2007, and Mazin Salih Musaid al-Alawi al-Awfi–repatriated to Saudi Arabia in July 2007. On 24 January, a 19-minute video was released wherein al-Shihri and al-Awfi announced their leadership within the newly established al-Qaida in Arabian Peninsula.

Call me a cynic, but any video released just days after Obama became President and two days after he signed an order to close Gitmo ought to be treated with caution.We’ve seen way too much explicit propaganda in the last eight years to take this as face value.

Also note the standards involved. The report tries to refute a criticism made of it–that among the so-called recidivists included is a guy, Mohammed Ismail, who made a critical comment about the US. In its definitions section, the report says:

For the purposes of this definition, engagement in anti-U.S. propaganda alone does not qualify as terrorist activity.

Oh, okay. In the case of Ismail, the report claims he engaged in an attack on US forces in Afghanistan and was carrying a letter "confirming his status as a Taliban member in good standing."

Which brings us to another point. A number of these so-called recidivists joined not al Qaeda, but the Taliban, upon their return. That’s different than al Qaeda membership, and I challenge it as a designation of "terrorist" membership. Anti-US, certainly (at least before we entered into talks with the Taliban), but strictly speaking not a terrorist organization.

Finally, there’s the question of how these classifications of confirmed and suspected were collected. Read more →

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What Pelosi, Rockefeller & Harman Could Have Done

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There has been an ongoing discussion for the last two weeks or so about the briefings that congressional leaders were allegedly given regarding the Bush/Cheney torture program (See for instance here, here, here, here and here) and what Congressmembers like Pelosi, Rockefeller, Harman and Graham could have done to fight the malfeasance of Bush and Cheney. This post will explain what they could have done.

I promised a discussion on the speech and debate clause and what was possible, at least theoretically, for Nancy Pelosi, Jane Harman, Jay Rockefeller, Bob Graham, or any Congressmember that had knowledge, to have done about the wrongs of the Bush Cheney Administration, even in relation to national security level topics.

The speech and debate clause is found in Article I, section 6 of the Constitution and reads as follows:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The key wording is the last part "…and for any Speech or Debate in either House, they shall not be questioned in any other Place." The down and dirty is that congressmembers (and in certain cases key staff) cannot be questioned or held to answer in any forum, civil, criminal or otherwise, for speech and/or discussion regarding legitimate interests and business of Congress; such conduct occurring on the floor or in committee is absolutely privileged.

Let’s have a look at the history of the Speech and Debate Clause. In United States v. Gillock, 445 U.S. 360 (1980), the Supreme Court stated, "The Framers viewed the speech or debate privilege as fundamental to the system of checks and balances." Indeed, it was framed by the founders as one of the seminal checks and balances against the power and greed of the Executive Branch. You know, exactly what Congress was staring at, and cowering from, with the Bush/Cheney crew. The Congressional privilege has been discussed and upheld in a Read more →

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Gitmo as OUR Recruitment Tool

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The NYT is out with another report of the Pentagon stat that 14% of those released after being held in Gitmo subsequently engaged in terrorism.

An unreleased Pentagon report concludes that about one in seven of the 534 prisoners already transferred abroad from the detention center in Guantánamo Bay, Cuba, has returned to terrorism or militant activity, according to administration officials. 

[snip]

The report, a copy of which was made available to The New York Times, says the Pentagon believes that 74 prisoners released from Guantánamo have returned to terrorism or militant activity, making for a recidivism rate of nearly 14 percent.

There’s something that all of the discussion on so-called "recidivism" from Gitmo never considers.

What are the chances that some, or even most, of these "recidivist" terrorists are actually men we recruited to spy for us? That is, they may have "returned to terrorism or militant activity," but did so with our blessing, with the understanding they’d send back information on what those militant groups were doing.

We do know the US and its allies were using those captured as spies of a sort. Just last weekend, for example, newspapers in the UK reported that an "Informant A" was used by the Brits and Morrocco to try to get Binyam Mohamed to "cooperate" with his captives. 

Mohamed, 31, says that in September 2002, after his ‘extraordinary rendition’ to North Africa, an agent known only as Informant A told him the torture would stop if he gave intelligence to the British.

The offer from the agent, a UK citizen of Moroccan descent, suggests that British security forces had the power to end his treatment, Mohamed’s lawyer claims.

Mohamed already knew the agent from London.

[snip]

Clive Stafford Smith said: ‘The Moroccans told Mr Mohamed that Informant A was working with the British Government and pressed Mr Mohamed to do the same if he wanted to end his torture.

[snip]

Informant A is said to have fought alongside Osama Bin Laden in the caves of Tora Bora.

He was said to have been captured and held at a U.S. base in Afghanistan in 2002, when he agreed to turn informant.

Terek Dergoul, held at the same base, said: ‘One of the guards was saying, "We’ve got another 007".’

The language here is particularly interesting: the reference to Informant A as "another 007" and the suggestions that Mohamed should "work with the British Government." Read more →

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