The Terrorism Intelligence and the Briefing Schedule

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I suggested yesterday that one of the explanations for the CIA’s unreliable record of briefings on torture and terrorism in 2002 and 2003 might reflect an attempt to hide certain information.

Did CIA not reveal they were torturing detainees to dodge any question about the accuracy of claims about Iraq intelligence? 

While we don’t know the full schedule of briefings on Iraq intelligence, the schedule of intelligence documents pertaining to Iraqi ties to terrorism suggests that might be possible. Significantly, according to Bob Graham and Nancy Pelosi, they were not briefed that Abu Zubaydah had been tortured before the NIE appeared integrating his August 2002 interrogation reports. And Jane Harman was not informed he had been tortured until after the last major report on Iraqi links to terrorism came out in January 2003.

Here are the intelligence documents mentioned in the SSCI Report on Iraq, interspersed with the torture briefings.

September 21, 2001: Document written by Cofer Black (then Director of CounterTerrorism) and Near East and South Asia Directorate. Distributed only to President’s Daily Brief principals, and not revealed to Congress until June 2004. The document is described as "taking a ‘Q&A’ approach to the issue of Iraq’s possible links" to 9/11.

October 2001:  NESA document discussing Iraq’s overall ties to terrorism.CIA refused to share the document with SSCI, explaining its dissemination was limited to PDB readers.

December 18, 2001: Ibn Sheikh al-Libi captured.

February 22, 2002: First report doubting al-Libi’s claims of ties between Iraq and al Qaeda.

March 28, 2002: Abu Zubaydah captured.

June 21, 2002, Iraq and al-Qaida: Interpreting a Murky Relationship: Ostensibly a joint project between CTC and NESA, the report was a subject of a CIA Ombud invsetigation into a complaint from a NESA analyst alleging that the document did not adequately reflect the views of NESA. The document was intentionally expansive, as described by Jamie Miscik: "If you were going to stretch to the maximum the evidence you had, what could you come up with?"

July 26, 2002: OLC orally authorized waterboarding.

July 31, 2002: Second report doubting al-Libi’s claims of ties between Iraq and al Qaeda.

Summer 2002, Dougie Feith’s Propaganda: This led to a series of briefings in August 2002 apparently designed to reinsert previously discredited claims into the CIA stream of intelligence. In particular, George Tenet agreed to hold up the production of Iraqi Support for Terrorism until CIA could attend a meeting with Feith’s people; the meeting took place on August 20, 2002. Read more →

al-Libi Dies in a Libyan Prison

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Graphic by Darkblack

Graphic by Darkblack

We have been talking heavily about torture, renditions and the legal and motivational justifications therefore nonstop for the last couple of weeks. But one of the earliest entries in this sordid tale (witness the December 18, 2001 entry on Marcy’s Torture Timeline) was the capture and torture of Ibn Sheikh al-Libi. What became of al-Libi has been ripe discussion ever since he was disappeared. From Andy Worthington (h/t Barb) we learn of al-Libi’s demise:

The Arabic media is ablaze with the news that Ibn al-Shaykh al-Libi, the emir of an Afghan training camp — whose claim that Saddam Hussein had been involved in training al-Qaeda operatives in the use of chemical and biological weapons was used to justify the invasion of Iraq — has died in a Libyan jail.
…
This news resolves, in the grimmest way possible, questions that have long been asked about the whereabouts of Ibn al-Shaykh al-Libi, perhaps the most famous of “America’s Disappeared” — prisoners seized in the “War on Terror,” who were rendered not to Guantánamo but to secret prisons run by the CIA or to the custody of governments in third countries — often their own — where, it was presumed, they would never be seen or heard from again.

Al-Libi was captured by Pakistan on or about December 18, 2001 and was one of the earliest subjects rendered at the will if the CIA, being sent to Egypt for torture. And what did Bush/Cheney want out of him? Information connecting Sadaam Hussein with al-Qaida of course, which he eventually coughed up to his tormenters.

The significance of al-Libi in the events that followed and have led us to where we are today cannot be overestimated.

In Egypt, he came up with the false allegation about connections between al-Qaeda and Saddam Hussein that was used by President Bush in a speech in Cincinnati on October 7, 2002, just days before Congress voted on a resolution authorizing the President to go to war against Iraq, in which, referring to the supposed threat posed by Saddam Hussein’s regime, Bush said, “We’ve learned that Iraq has trained al-Qaeda members in bomb making and poisons and deadly gases.”

That October 7, 2002 speech in Cincinnati was a critical base for entire set of lies that put us into the unconscionable and unjustified invasion and occupation of Iraq. You might remember the Cincinnati speech, it was the first time Bush Read more →

Pelosi’s Advisory On Abu Zubaydah And Torture

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As Marcy noted back on April 29th, the issue of Nancy Pelosi’s briefing back in 2002 on the Bush/Cheney torture program, whether or not it was being applied to Abu Zubaydah and, if so, to what extent, has really turned into a he said-she said game. (See also here regarding the Porter Goss offensive against Pelosi and Harman).

So, it should not come as any surprise that yet another missive has been launched in this little passion play. Today’s strike comes courtesy of Rick Klein at ABC News:

ABC News’ Rick Klein reports: House Speaker Nancy Pelosi was briefed on the use of “enhanced interrogation techniques” on terrorist suspect Abu Zubaydah in September 2002, according to a report prepared by the Director of National Intelligence’s office and obtained by ABC News.

The report, submitted to the Senate Intelligence Committee and other Capitol Hill officials Wednesday, appears to contradict Pelosi’s statement last month that she was never told about the use of waterboarding or other special interrogation tactics. Instead, she has said, she was told only that the Bush administration had legal opinions that would have supported the use of such techniques.

MadDog has slithered into the depths of Human Events.com to find what they claim is "the report". He has also given us a hand glossary for the abbreviations. The Washington Post seems to think it is "the report" as well, for what it is worth:

In a 10-page memo outlining an almost seven-year history of classified briefings, intelligence officials said that Pelosi and then-Rep. Porter J. Goss (R-Fla.) were the first two members of Congress briefed on the tactics. Then the ranking member and chairman of the House intelligence committee, respectively, Pelosi and Goss were briefed Sept. 4, 2002, one week before the anniversary of the terrorist attacks of Sept. 11, 2001.

Pelosi has already, of course, issued a denial through a spokesman. More he said-she said. Quite frankly, without more, today’s play should be taken with a grain of salt. Multiple major news organizations have this hot off the press info right after Congress receives it and right wing hit rag Human Events (Jed Babbin) is pitching it as a slam on Pelosi. How very convenient. As further evidence of the need for grains Read more →

Dougie Feith’s Little Shop of Tortures?

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I just happened to find Dougie Feith’s responses to Questions for the Record the Senate Intelligence Committee asked him in 2003. They wanted to know how his little intelligence shop at DOD–the Policy Counter Terrorism Evaluation Group (PCTEG)–bridged the line between intelligence and policy.

He said his little intelligence shop helped formulate policy on:

  • DoD response to the presence in Iraq of the al-Qaida affiliated Ansar al-Islam terrorist group.
  • DoD response to the presence in Iraq of al-Qaida operative Abu Musab al-Zarqawi and his CB W network.
  • Helping to formulate requirements for the debriefings of al-Qaida fighters detained at Guantanamo and Bagram.

"Helping to formulate requirements for the debriefings of al-Qaida fighters?!?!?!?!"

What the hell does that mean? How do you formulate policy requirements for interrogations?

I don’t know, really, but I wonder if it has something to do with this (from a psychiatrist advising on interrogations at Gitmo):

[T]his is my opinion, even though they were giving information and some of it was useful, while we were there a large part of the time we were focused on trying to establish a link between AI Qaeda and Iraq and we were not being successful in establishing a link between AI Qaeda and Iraq. The more frustrated people got in not being able to establish this link, there was more and more pressure to resort to measures that might produce more immediate results.

Or this, coming from Dougie’s boss, Paul Wolfowitz:

Mr. Becker also told the Committee that, on several occasions, MG Dunlavey had advised him that the office of Deputy Secretary of Defense Wolfowitz had called to express concerns about the insufficient intelligence production at GTMO.

Or this:

Mr. Haynes’s memo stated that he had discussed the issue with Deputy Secretary of Defense Paul Wolfowitz, Undersecretary ofDefense for Policy Doug Feith, and Chairman of the Joint Chiefs of Staff (CJCS) General Richard Myers and that they concurred with his recommendation.

Anyone want to speculate whether or not Dougie Feith was giving the torturers a script to focus on Iraq’s specious ties to al Qaeda?

Updated for clarity.

Noted Terrorist Indicted

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The terrorist in question is Luis Posada Carriles, who at one time admitted to involvement in a 1997 Cuban bombing, and is widely associated with a 1976 airline bombing.

That would be Luis Posada Carriles, a Cuban exile, suspected, arrested and once convicted (though later pardoned) in various countries for crimes that included the 1976 bombing of a Cuban jetliner that killed 73 people; the 1997 bombings of two Havana hotels that killed an Italian tourist; and a 2000 plot to assassinate Fidel Castro. 

[snip]

Wednesday night, federal prosecutors filed a superseding 11-count indictment against the aging militant in which, for the first time, the U.S. links him to at least the 1997 bombings. It doesn’t directly charge Posada with the crime; but it accuses him of lying about his role in it, claiming he perjured himself and obstructed justice in 2005 when, while answering questions from immigration authorities, he denied involvement in the Havana attacks even though he told the New York Times in 1998 that he’d taken part in them. 

While it would be nice to see this country’s hypocrisy regarding right wing terrorists end (particularly from an Attorney General who has himself practiced that hypocrisy on behalf of Chiquita, Jeff Stein notes some caution is merited.

Normally, throwing Posada into a dark pit would be cause for joy – if the government’s conduct didn’t stink up the joint.

Posada may be as guilty as former Sen. Ted Stevens, R-Alaska, once was. But a guilty verdict can’t wipe the stain off the foundation of the government’s case, no matter how it ends.

To wit, the 2005 naturalization hearing where the government maintains Posada committed perjury.  

U.S. District Judge Kathleen Cardone was outraged by the government’s conduct in the hearing.

"This Court finds that the Government engaged in fraud, deceit, and trickery," Cardone wrote in a blistering decision dismissing the indictment in May 2007.

Indeed, the transcripts of the government’s interviews with Posada, conducted by a team of Justice Department and Homeland Security Department officials, shows that Cardone was on target.   

For starters, the Spanish language interpreter the government used at the hearing was incompetent, she found after appointing a court-certified interpreter to review the taped hearing.

[snip]

What a weirdly ironic twist, considering that Justice departments going back to the Reagan administration were soft on Posada, looking the other way while he waged his violent vendetta against Castro, oblivious to collateral damage, protected by Florida’s powerful Read more →

Panetta: Contractors Not Allowed to Interrogate (Anymore)

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Leon Panetta just wrote a letter to Congress assuring them that contractors will not be used for interrogations.

The Central Intelligence Agency has banned contractors from conducting interrogations, CIA Director Leon Panetta told lawmakers in a letter Thursday outlining the agency’s dismantling of several Bush-era policies.

The letter and an accompanying memo to CIA employees were the fullest explanation to date of how the agency is carrying out President Barack Obama’s executive order of Jan. 22 ending the CIA’s "black site" program that detained terror suspects.

One flashpoint in that program was the use of outside contractors to interrogate suspects. Under congressional pressure, Director of National Intelligence Dennis Blair recently said he was reviewing that policy and added that government employees should handle the most important detainees.

Mr. Panetta went further, saying flatly: "No CIA contractors will conduct interrogations."

[anip]

An intelligence official said the contractor ban doesn’t extend to support of interrogations. "If a contractor has, say, special language skills, it’s conceivable that he or she could be asked to support a debriefing," the official said.

Read the whole argument, as it includes easily parsed reassurances that the CIA is out of the black site business as well.

Panetta did not mention, apparently, whether or not the contractors who designed our torture system were still on contract. 

Cheney Lies, Obstruction Of Justice & Torture Tape Destruction

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graphic by PirateCat

graphic by PirateCat

Marcy earlier noted the article in today’s Washington Post by Peter Finn and Joby Warrick detailing the story surrounding abu-Zubaydah’s capture and torture. I want to pick up with Marcy’s last line:

Yet more reason they destroyed the torture tapes showing Abu Zubaydah’s interrogation.

Well, yes, because it was crystal clear at the outset the explanation initially given by the Bush/Cheney Administration – that they had researched the matter completely and the tapes had no evidentiary value in any possible proceeding whatsoever and they were concerned about privacy of hard working investigators – was totally bogus.

It has been my belief from the outset that the reason the "torture tapes" were destroyed was not simply because they depicted the brutal torture of detainee subjects but, just as importantly, if not more so, they demonstrated there was no credible/usable information produced as a result of that torture. Warrick and Finn confirm this. Even worse, they confirm what little good information the Bushies did extract from abu-Zubaydah was obtained through traditional interrogation prior to the onset of the torture program:

In the end, though, not a single significant plot was foiled as a result of Abu Zubaida’s tortured confessions, according to former senior government officials who closely followed the interrogations. Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida — chiefly names of al-Qaeda members and associates — was obtained before waterboarding was introduced, they said.

Moreover, within weeks of his capture, U.S. officials had gained evidence that made clear they had misjudged Abu Zubaida. President George W. Bush had publicly described him as "al-Qaeda’s chief of operations," and other top officials called him a "trusted associate" of al-Qaeda leader Osama bin Laden and a major figure in the planning of the Sept. 11, 2001, terrorist attacks. None of that was accurate, the new evidence showed.

Abu Zubaida was not even an official member of al-Qaeda, according to a portrait of the man that emerges from court documents and interviews with current and former intelligence, law enforcement and military sources.

And there you have it. The Bushies made the conscious and criminal decision to go full tilt torture having direct reason to Read more →

Cheney’s Assassination Squads and Iran-Contra and Findings

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Sy Hersh’s recent discussion at University of Minnesota included a number of tidbits, two of which are pertinent to this post. Hersh explained that the Joint Special Operations Command was doing operations that directly reported to Cheney, up to and including assassination. And Hersh revealed that Cheney had convened a meeting not long after 9/11 where he and other alumni of Iran-Contra brainstormed how to avoid the legal problems they had with Iran-Contra. A recent Congressional Research Service article on covert ops and presidential findings helps to show how these two revelations relate to each other.

The Assassination Squads Were Revealed Because CIA Demanded a Finding

While the assassination revelation got all the press, much of what Hersh said was not new. Hersh had described much of what was going on in a July 2008 article describing operational tensions between JSOC and CIA surrounding a presidential finding authorizing covert ops in connection with Iran’s alleged nukes program. The Gang of Eight had reviewed (to the extent they do) the finding, but the JSOC went beyond the scope of that finding.

United States Special Operations Forces have been conducting cross-border operations from southern Iraq, with Presidential authorization, since last year [2007]. These have included seizing members of Al Quds, the commando arm of the Iranian Revolutionary Guard, and taking them to Iraq for interrogation, and the pursuit of “high-value targets” in the President’s war on terror, who may be captured or killed. But the scale and the scope of the operations in Iran, which involve the Central Intelligence Agency and the Joint Special Operations Command (JSOC), have now been significantly expanded, according to the current and former officials. Many of these activities are not specified in the new Finding, and some congressional leaders have had serious questions about their nature.

Under federal law, a Presidential Finding, which is highly classified, must be issued when a covert intelligence operation gets under way and, at a minimum, must be made known to Democratic and Republican leaders in the House and the Senate and to the ranking members of their respective intelligence committees—the so-called Gang of Eight. Money for the operation can then be reprogrammed from previous appropriations, as needed, by the relevant congressional committees, which also can be briefed.

“The Finding was focussed on undermining Iran’s nuclear ambitions and trying to undermine the government through regime change,” a person familiar with its contents said, and involved “working with opposition groups and passing money.” The Finding provided for a whole new range of activities in southern Iran and in the areas, in the east, where Baluchi political opposition is strong, he said. [my emphasis]

There were two ways in which the JSOC operations went beyond the finding: they involved offensive lethal action that Cheney argued was authorized under the AUMF (which is where you get to assassination squads, as I pointed out when the article first came out).

Senior Democrats in Congress told me that they had concerns about the possibility that their understanding of what the new operations entail differs from the White House’s. Read more →

CIA Refuses to Turn Over Torture Tape Library

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The CIA has been making an inventory of its torture tape library. It is supposed to hand over an inventory of the library for the judge to review next Thursday, March 26, including:

  • A list of any summaries or transcripts describing the destroyed records’ content.
  • A list of any witnesses who may have viewed the videotapes or retained custody before their destruction.

Only, the CIA says the ACLU can’t have any of these lists. 

Here’s the letter DOJ gave Judge Hellerstein explaining the CIA’s reasons why ACLU can’t have the torture library.

The CIA has generated the lists contemplated by Points 2 and 3 of the Order. As instructed by the Court, the CIA will provide the unredacted lists for the Court’s ex parte, in camera review on March 26, 2009 at 2:30 p.m.  There is no meaningful non-exempt information from the list of documents covered by Point 2, which identifies roughly 3,000 documents, including cables, memoranda, notes and emails, that can be produced at this time. All of the information on the list of witnesses covered by Point 3 is either classified or otherwise protected by statute. Accordingly, the CIA is not producing either list to Plaintiffs in redacted form.

In spite of the fact they’ve given us a hugely redacted copy of the CIA OIG report on torture and a torture tape inventory itself, they claim they can’t reveal any of the 3,000 documents discussing the torture tapes. None of them. We’ll see whether Judge Hellerstein agrees with them…

What I’m most fascinated by, though, is the explanation that CIA can’t turn over the list of those who watched or retained the torture tapes because the list "is either classified or otherwise protected by statute." That suggests they’re invoking FOIA exemptions other than classification to withhold the identities of people who watched those tapes.

Take a look at this list of FOIA exemptions, and you’ll see why that may be rather interesting. For example, trade secrets might protect the identities of contractors who had viewed or retained the torture tapes. There’s the physical safety exemption that they earlier cited in regards to their destruction of the tapes–but if they invoked this exemption, it might reveal that they’re worried about the identities of non-CIA employees being released. There are law enforcement exemptions they might invoke if DOJ had reviewed these torture tapes in 2004 in response to a criminal referral by CIA’s Read more →

Obama Becomes Bush As We Wait For Walker’s Ruling

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graphic by politicalbase

graphic by politicalbase

As you may recall, since February 27, we have been waiting for a decision, of some sort, from Vaughn Walker in the al-Haramain and Consolidated Cases litigation in NDCA. The decision is not in yet; however, there is a new filing in the Consolidated Cases further ingraining the oneness of Obama with Bush in the litigation.

There really wasn’t much doubt about the oneness with the exception of the nuance Marcy noted as to Obama shifting slightly away from privilege in favor of the merits. Slightly is the key word there; the overall tenor of the Obama position in the consolidated wiretapping cases is disgustingly identical to the duplicitous and wrongheaded state secrets policy of Bush/Cheney.

The new filing is by the government, by and through the Obama DOJ, and is a motion to dismiss in a recently consolidated case, McMurray v. Verizon Communications. Interestingly, McMurray was already a plaintiff from the start in the Consolidated Cases, but attempted to file a separate action in July of 2008 in the Southern District of New York challenging the application of Section 802 to their original action that had already been consolidated. Section 802 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C.§ 1885a(a) provides that a civil action “may not lie or be maintained” against electronic communication services providers alleged to have provided assistance to an element of the intelligence community, and “shall be promptly dismissed” if the Attorney General of the United States certifies that one of several circumstances exist with respect to the alleged assistance.

Now you may ask yourself why did McMurray file this challenge in SDNY instead of in Vaughn Walker’s court where his case, and all the others, already was lodged? Excellent question, and one I have no answer for since it was bound to be transferred out to Walker’s court with the rest of the Consolidated Cases including, notably, McMurray’s. Of course, the better question is how did all the cases ever get consolidated in the 9th to start with, and I will get back to that later.

Now, with respect to the motion to dismiss filed Friday the 13th, there is one new wrinkle regarding a takings clause claim, mostly, however, it is notable for the fact that it continues the same crappy and duplicitous pleading style that was so prevalent under Bush. It is yet one more (as if more was needed at this point) indication that Barack Obama has completely morphed into George Bush and Dick Cheney in terms of craven support for government intrusion into the privacy of the citizenry, and the ability to conceal the Constitutionally infirm activity through the unitary and unreviewable imposition of state secrets doctrine.

These counts largely repeat claims plaintiffs, including the McMurray plaintiffs, made in response to the Government’s prior dispositive motion, and fail for the reasons set forth at length in the Government’s brief, which are incorporated in full by reference herein.

Same old song, same old dance. Barack Obama avowed he was a man that believed in the sanctity of the Constitution, the rights of citizens and in transparency of the Executive. Obama would be the agent of change from Bush/Cheney. Except, now that he has taken office, that is all no longer operative. As Glenn Geenwald has noted, the Obama Administration has proven itself just as cravenly addicted to secrecy, imperial executive power and willingness to strip its citizens of their rights under the Constitution, and its Bill of Rights, as Bush and Cheney.

As to the Takings Clause violation allegation that the government claims is newfangled, I believe that is new only to McMurray, other plaintiffs in the Consolidated Cases have at least noticed the claim in their pleadings to the best of my knowledge, but this is a decent opportunity to discuss it a little. I first mentioned the theory well over a year ago in the indemnification post:

In addition to the foregoing, there is an extremely good case to be made that the granting of retroactive immunity to the telcos would comprise an improper and unjust taking of the existing plaintiffs’ right to compensation under the Fifth Amendment and would, therefore, be in direct violation of the Constitution. I don’t want to belabor this thought; just put it out there so that it is considered in the mix. Hey, "Teh Google" is a most marvelous thing; here is an absolutely outstanding discussion of this issue by Professor Anthony J. Sebok of the Cardozo School of Law.

In a nutshell, the takings clause is contained in the Fifth Amendment

…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

and is what protects citizens from having their property interests seized by the government without due process and just compensation. It is what lies at the root of eminent domain cases like the notorious Kelo v. City of New London decision. There is some intellectual merit to the Takings Clause argument, but not a lot of practical hope for success on it. There are far too many ways around the Constitutional provision, several of which the government picked up on in their motion to dismiss. If you are interested in a general primer in how the Takings Clause could theoretically apply to the FISA situation, see the Sebok article referenced in the quote above.

What I find interesting (with a little prodding by Marcy) is that John Yoo and the Bush/Cheney regime planned on being confronted with Takings Clause complaints by citizens when they declared war on the Constitution. Yoo blithely dispensed with the applicability of the takings clause, indeed the entire Bill of Rights effectively, to the President’s military program (and remember the wiretapping was run militarily through the NSA) via a footnote in his infamous March 2003 Torture Memo. As Greenwald described Yoo’s execrable arguments:

The President’s power to use military force domestically in violation of the Bill of Rights applies equally even if the actions are ordered against American citizens on U.S. soil ….. The President, when using military force against American citizens on U.S. soil, is "free from the constraints" not only of the Fourth Amendment, but also of other core guarantees of the Bill of Rights — including First Amendment liberties, Due Process rights, and the takings clause ….. If this isn’t the unadorned face of warped authoritarian extremism, what is?

No kidding. The galling part is to compare and contrast what Yoo tried to do in his sweeping blithe evisceration of the Constitution and Bill of Rights, substantially via a freaking footnote, with a detailed lawyerly dissertation on specific case precedence and statutory history; the merits if you will. See, the Takings Clause can be worked around through proper legal argument, or at least a proper argument therefore made; that is proved by the government’s response in the March 13, 2009 motion to dismiss. But Yoo, Bush and Cheney wanted none of the legal niceties, they wanted to seize supreme unadulterated power and went about doing so in blanket fashion. Now they are using the bludgeon of state secrets to cover the power grab, even under the supposedly enlightened Obama. Different name, but the same totalitarian bludgeon for the same unitary executive power grab.

Oh yes, back to the interesting point about why the cases may have been consolidated in the 9th Circuit in the first place. It always has perplexed me as to how, and why, in the world the government ever allowed all these critical FISA/Fourth Amendment cases to be consolidated in the 9th, the most liberal and rebel appellate circuit of all. If there is any circuit you would think the government would not want to be stuck in, it is the 9th. Yet there they all are, consolidated in Vaughn Walker’s San Francisco courtroom and subject to appeals to panels of the notorious Ninth.

Marcy previously discussed the September Read more →