The Strange Case of Hiwa Abdul Rahman Rashul (Part 2)

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In part 1, I laid out the facts surrounding the detention and illegal transfer of Hiwa Abdul Rahman Rashul. In this post, I want to demonstrate why this case matters. There is a pattern to the Bush/Cheney Administration’s illegal usurpation of executive power. Because the pattern broke down in this case, the strategy behind that power grab is laid bare. The struggle within the administration over the disposition of Rashul and the way it was resolved helps to illuminate the true nature of the current regime. Perhaps this case creates an opening to unravel the authoritarian infrastructure that has been built within our country in the last eight years.

Part 2: Why it matters

In the grand scheme of things, focusing on this case might seem a little like busting Al Capone for tax evasion. The Bush/Cheney Administration has institutionalized the most egregious extralegal executive abuses in our nation’s history. As matters of policy, they’ve launched a war of aggression under false pretenses, violated the most basic human right treaties, trashed the Fourth Amendment, denied the right of habeas corpus to citizens and non-citizens alike, set up secret prisons, disappeared their presumed opponents around the world, tortured the innocent and presumed guilty alike, conducted sham military tribunals against the underage and the mentally ill, and, worst of all, claimed the power to indefinitely detain anyone in the world, including U.S. citizens, without any external check whatsoever. And that’s just the stuff they have admitted to.

If we want to undo all this, and I very much do, we’ll have understand how they were able to accomplish it. I’m not going to rehash the sociopolitical environmental conditions that the administration took advantage of. Folks here understand that the generalized fear and anger after the attacks of September 11, 2001, the fecklessness of the Democratic party, the docile and compliant traditional media, the tight discipline within the Republican party, and the latent authoritarian impulses of a sizeable minority of the country created the necessary conditions for what happened. I want to focus on how the administration manipulated secrecy, its own people’s psychology, and the instinct for institutional self-preservation to manage a shifting set of narratives that allowed them to follow a deliberate strategy of expanding executive power and upsetting the constitutional balance of government while evading responsibility and steam-rolling all opposition. Then, I hope to show how this case exposes some chinks in the rather substantial armor of these malefactors. Read more →

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FISA Redux Again: The Slippery Slope Leads Down A Rabbit Hole

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Five days ago, in the post "FISA Redux: The Slippery Slope Becomes A Mine Shaft", we discussed the new set of domestic spying protocols that the Bush Administration is determined to entrench into law and practice before leaving office. The measures would:

…make it easier for state and local police to collect intelligence about Americans, share the sensitive data with federal agencies and retain it for at least 10 years. … would apply to any of the nation’s 18,000 state and local police agencies.

Criminal intelligence data starts with sources as basic as public records and the Internet, but also includes law enforcement databases, confidential and undercover sources, and active surveillance.

…also would allow criminal intelligence assessments to be shared outside designated channels … It turns police officers into spies on behalf of the federal government.

As if that wasn’t enough fun for one post, we also learned that Attorney General Mukasey

…would release new guidelines within weeks to streamline and unify FBI investigations of criminal law enforcement matters and national security threats.

Well, that didn’t take long. Guess what; they’re here. It is amazing how when it comes to protecting the rights and privacy of American citizens, the health and stability of the environment, the education of our children, and the care and compassion to military veterans, the Bush Administration produces nothing but bad faith delay, obstruction and, often, outright refusal to act. They are imminently capable, however, of moving with breathtaking alacrity when they sense the opportunity to seize unheard of domestic police state powers that undercut the Constitution, solely by Administrative fiat, and that fundamentally alter the way the American public exists in relation to it’s government in terms of their privacy and, in an existential sense, if not physical, their right to liberty and the pursuit of happiness.

Here, courtesy of the New York Times, is the new joy the Attorney General is announcing to "protect yer freedums":

A Justice Department plan would loosen restrictions on the Federal Bureau of Investigation to allow agents to open a national security or criminal investigation against someone without any clear basis for suspicion, Democratic lawmakers briefed on the details said Wednesday.
…
The senators said the new guidelines would allow the F.B.I. to open an investigation of an American, conduct surveillance, pry into private records and take other investigative steps “without any basis for suspicion.” The plan “might permit an innocent American Read more →

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The Strange Case of Hiwa Abdul Rahman Rashul (Part 1)

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[Today Emptywheel has a special treat in the form of a guest post from one of our very longtime commenters, William Ockham. Marcy alluded to this right before she left. WO really drilled deep into this story and has produced a great article. As the title suggests, there will also be a Part II that will delve into the implications. Give WO some love and participation in comments, and in light of the special nature of this post, please stay on topic for this one; if there are other issues, please feel free to use the previous post on the Bates Contempt Decision for those. Thank you. – bmaz]

In June 2004, Hiwa Abdul Rahman Rashul had his 15 minutes of fame when Secretary of Defense Donald Rumsfeld answered questions at a press conference about the detainee known to American soldiers only as Triple X, the first ghost detainee transferred from CIA custody to the U.S. military. Rashul was suspected of being a member of Ansar al-Islam, a violent Kurdish Sunni Islamist movement opposed to the dominant Kurdish groups of northeastern Iraq. The real story of Hiwa Abdul Rahman Rashul wasn’t his terrorist past or his time as a ghost detainee of the DOD, but his treatment by the CIA in between.

Part 1: Did the DOJ cover up what its own OLC ruled was a war crime committed by the CIA?

The Office of Legal Counsel in the Bush Administration’s Department of Justice has had a notoriously broad view of the Executive Branch’s ability to define our obligations under the Geneva Conventions. But if the OLC under Goldsmith and Bradbury decided that the CIA had engaged in a grave breach of the Geneva Conventions (and even John Yoo agreed), and the CIA OIG had made a criminal referral to the DOJ, wouldn’t you expect a prosecution? Recently released CIA documents suggest that such a referral was made, but no prosecution occurred. Perhaps the very public complicity of Donald Rumsfeld, Alberto Gonzales, and George Tenet played a role in the decision not to prosecute. But I’m getting ahead of myself. First, I want to make it clear that I’m using the term ‘war crime’ in the very narrow sense of a violation of U.S.C. § 2441.

The Crime

Return with me now to those thrilling days of yester-year, that is, the summer of 2003. Dana Priest (in a story from October 2004) and Jane Mayer (The Dark Side) are our narrators. Mayer’s account (in bold) appears to derive directly from Jack Goldsmith:

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FISA Redux: The Slippery Slope Becomes A Mine Shaft

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(photo h/t Pointed Words)

Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.

With the utterance of those words and placement of quill to paper, by Founding Father Benjamin Franklin, so began the half life decay of his wisdom. The surveillance state we occupy today is the festering, mature result of the acts of cloying politicians and barons of power to serve their own political and financial goals by declaring themselves the protectors of law and order. The daddy state. They spread fear of isolated, and ultimately inconsequential, yet publically hyped acts of crime and terror in order to supplicate the nation at large.

It has been a singularly effective scheme.

So it began with characterization of hideous and substantive Fourth Amendment violations of fundamental search and seizure law as "mere technicalities". Soon judges and prosecutors, being elected or politically appointed officials themselves, started shading their duties, principles and morals under the law to find creative ways around Constitutional protections in order to avoid results that would be unpopular. Then the officials ran again for reelection proudly proclaiming how they protected the "law and order for the citizens" by "clamping down on criminals" and "elimianting the criminal’s use of technicalities". The more they talked the talk, the more they walked the walk. Down the slippery slope.

And that is where we find ourselves today. From Spencer S. Hsu and Carrie Johnson in today’s Washington Post:

The Justice Department has proposed a new domestic spying measure that would make it easier for state and local police to collect intelligence about Americans, share the sensitive data with federal agencies and retain it for at least 10 years.

The proposed changes would revise the federal government’s rules for police intelligence-gathering for the first time since 1993 and would apply to any of the nation’s 18,000 state and local police agencies that receive roughly $1.6 billion each year in federal grants.

Quietly unveiled late last month, the proposal is part of a flurry of domestic intelligence changes issued and planned by the Bush administration in its waning months. They include a recent executive order that guides the reorganization of federal spy agencies and a pending Justice Department overhaul of FBI procedures for gathering intelligence and investigating terrorism cases within U.S. borders. (Emphasis added)

This is sick. Quite frankly, the contours of this have been quite obvious, and even partially stated, as being on the way for a while now if you were paying attention. This is why I was foaming at the mouth when the Protect America Act (PAA) was passed a year ago, and especially when Congress voted "just to extend (renew) it for a period". Read more →

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Habbush’s Freedom Fries Forgeries

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In his description of how Tahir Jalil Habbush Al-Tikriti negotiated protection from the United States, Ron Suskind writes,

Bush, Cheney, and top aides to the vice president wanted Habbush, in essence, to earn his passage. The United States was working furiously on "the case." It needed damning disclosures, not the Iraqi intelligence chief–who was given the code name "George"–saying there were no WMD.

Suskind doesn’t describe how, in spite of the fact that he insisted Iraq didn’t have WMD, Habbush still managed to convince the US to take him to Jordan and install him with $5 million in hush money. Suskind notes–but does not explain–that Habbush got out of Iraq early, close to the start of the war.

Habbush was ready. He slipped out of Baghdad with the help of U.S. intelligence and into Amman, Jordan, where he’d had his meetings with Shipster.

It is instructive, then, to look at the two other Habbush letters sent during the early war period. First, there’s the April 24, 2003 letter designed to frame British (then) Labour MP George Galloway as having been bought off with money from Saddam’s oil sales (h/t for all of these articles to a friend).

Saddam Hussein’s former head of protocol said yesterday that the document found by The Daily Telegraph saying that George Galloway received substantial payments from the Iraqi regime was "100 per cent genuine".

Haitham Rashid Wihaib, who fled to Britain with his family eight years ago after death threats, said he had no doubt that the handwritten confidential memorandum addressed to the dictator’s office apparently detailing how the Labour MP benefited from Iraq’s oil sales was authentic.

Sitting in a cafe in central London, a world away from Saddam’s palace where he spent 13 years arranging the dictator’s daily schedule, he carefully studied the letter discovered in the looted foreign ministry in Baghdad.

As Mr Galloway continued to denounce the letter as a forgery, Mr Wihaib said he recognised the "clear and distinctive" handwriting as that of Tahir Jalil Habbush Al-Tikriti, head of the Iraqi intelligence service, who is number 14 – the jack of diamonds – on America’s "most wanted" list.

The letter would have been intended to smear Galloway for his efforts to forestall the war–and his campaign to show how unfairly Iraq was treated under sanctions.

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Not a Question of If, But Who, Forged the Letter

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As a number of you pointed out last night, Philip Giraldi says Suskind got the forged uranium document close, but no cigar.

An extremely reliable and well placed source in the intelligence community has informed me that Ron Suskind’s revelation that the White House ordered the preparation of a forged letter linking Saddam Hussein to al-Qaeda and also to attempts made to obtain yellowcake uranium is correct but that a number of details are wrong.

[snip]

My source also notes that Dick Cheney, who was behind the forgery, hated and mistrusted the Agency and would not have used it for such a sensitive assignment. Instead, he went to Doug Feith’s Office of Special Plans and asked them to do the job. The Pentagon has its own false documents center, primarily used to produce fake papers for Delta Force and other special ops officers traveling under cover as businessmen. It was Feith’s office that produced the letter and then surfaced it to the media in Iraq. Unlike the Agency, the Pentagon had no restrictions on it regarding the production of false information to mislead the public. Indeed, one might argue that Doug Feith’s office specialized in such activity.

Now, I’m not at all surprised that Giraldi says Suskind got details wrong. The story always had a fundamental logical flaw (which Giraldi points out), which is that Cheney and CIA hate each other–and particularly hated each other in this period, when OVP believed Tenet had forced DOJ to open the Plame investigation. Note, there is significant reason to believe that Tenet knew Cheney declassified CIA properties over his objections, so things were probably quite tense between CIA and OVP, just as OVP was handing over documents showing that Cheney was the one pushing to leak Plame’s identity.

Also, as I pointed out here, Bob Woodward (well, consider the source) has said that Suskind’s CIA sources have led him astray in the past. And, as I pointed out here, there is something surprisingly credible about Tenet’s insistence that he always–up to and including late 2003–refused to endorse the Iraq-Al Qaeda claims. So there is reason to take Giraldi’s post seriously.

But something still doesn’t sit right with Giraldi’s story, either. As Sara points out, Iyad Allawi was a CIA guy, not–at first–an OVP guy. (OVP’s guy, Ahmad Chalabi, himself a fan of forgeries, discredited this one right away.) Read more →

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The Anthrax Prosecutor: The Daughter of the Defense Attorney for BushCo’s “Germ Boy”

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Guess who they’ve got prosecuting the anthrax case? Amy Jeffress, daughter of Bill Jeffress, the guy who was last seen trying to keep Scooter Libby, known within the Administration as "Mr. Germ," out of the pokey. Yeah. That gives me confidence in the investigation.

First, from an account of today’s meeting with Judge Lamberth (h/t JimWhite and bmaz):

U.S. District Judge Royce Lamberth ordered the release of hundreds of pages of documents, including more than a dozen search warrants issued as the government closed in on Ivins in an investigation into events that killed five, sickened dozens and rattled the nation a few weeks after the Sept. 11, 2001 terror attacks.

The long-sealed material was expected to be available to the public within hours.

Lamberth ordered the release after consultation with Amy Jeffress, a national security prosecutor at the Department of Justice. [my emphasis]

Next, the wedding announcement showing who Amy Jeffress’ daddy is:

The bride, 34, is known as Amy and is keeping her surname. She is an assistant United States attorney in Washington. She graduated magna cum laude from Williams College, where she was elected to Phi Beta Kappa. She received a master’s degree in political science from the Free University in Berlin and a law degree from Yale University.

The bride is the daughter of Judith and William Jeffress Jr. of Arlington, Va. Her mother is a social worker at the Adoption Service Information Agency in Washington. Her father is a partner in Miller, Cassidy, Larocca & Lewin, a Washington law firm where the bridegroom is an associate. [my emphasis]

And finally, here’s Jeremy Scahill on Libby’s role as "Germ Boy" within the administration.

In mid-2002, as they struggled desperately to sell the war, these key players in "Plamegate" were engaged in full-out offensive aimed at convincing Americans that the country faced an imminent threat of a smallpox attack. To underscore this "threat," Libby began fanatically pressing to have the entire US population preemptively vaccinated against smallpox (which was declared eradicated in 1980).

[snip]

What Hauer and his colleagues at HHS may not have known is that smallpox was a career-long obsession of Libby’s–so much so that his nickname in the administration was "Germ Boy."

[snip]

More than a decade later, Libby was facing renewed frustration with another group of experts challenging his obsession. Read more →

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Tenet and the “Creamy White House Stationery”

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Tenet begs to differ with two of the incidents reported out of Suskind’s book so far.

First, to rebut the forgery story, he makes this rather convincing point about his own past refutation of the Al Qaeda-Iraq allegations.

It is well established that, at my direction, CIA resisted efforts on the part of some in the Administration to paint a picture of Iraqi-Al Qa’ida connections that went beyond the evidence. The notion that I would suddenly reverse our stance and have created and planted false evidence that was contrary to our own beliefs is ridiculous.

It’s true that Tenet repeatedly pushed back against OVP’s efforts to claim Iraq and Al Qaeda had any ties, right up to the beginning of the war.

Still, I can’t help but think of this passage from Bob Drogin’s Curveball, describing Tenet’s state of mind in the November 2003 to January 2004 time frame, when this letter would have been planted.

Neither [Tenet nor McLaughlin] tried to persuade [David Kay] to stay. Nor did they accept his conclusions. "I don’t care what you or anyone else says," Tenet insisted. "I know they had WMD."

Kay was astonished. My God, he thought, he’s still so invested in this he won’t admit a mistake.

The CIA leaders made only one parting request: don’t talk to the press.

Things were different in November 2003 than they were in March 2003, when Tenet successfully pushed back against the Al Qaeda-Iraq claim. Further, CIA was gearing up efforts to turn Zarqawi into enemy number one. So it’s possible Tenet changed his tune out of desperation at David Kay’s refusal to flub the record for the Administration.

I’m more interested in Tenet’s response to Suskind’s claim that the Iraqi who signed the letter, Tahir Jalil Habbush al-Tikriti, had told the British that there were no WMD. Here’s the allegation:

The author also claims that the Bush administration had information from a top Iraqi intelligence official “that there were no weapons of mass destruction in Iraq – intelligence they received in plenty of time to stop an invasion.”

[snip]

Suskind writes that the White House had “ignored the Iraq intelligence chief’s accurate disclosure that there were no weapons of mass destruction in Iraq – intelligence they received in plenty of time to stop an invasion.

And here’s Tenet’s response:

One supposed “news” item from the book apparently asserts that British intelligence had a high-placed Iraqi source who convincingly told them before the start of the war that Iraq had no WMD and that the British relayed this to the United States. Read more →

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Disestablishmentarianism, CIFA Version

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Remember that word? As a kid you probably proudly claimed to have learned its opposite, antidisestablishmentarianism, not long after you learned how to spell M-I-S-S-I-S-S-I-P-P-I. You may vaguely remember that the word pertains directly to state sanctioning–or unsanctioning–of religion.

According to Warren Strobel, the Pentagon has decided to use the term "disestablished" to refer to the closure of the CIFA program.

Today comes the news, not unexpected, that Defense Secretary Robert Gates has shuttered–the official euphemism is "disestablished"–the Counterintelligence Field Activity, or CIFA.

[snip]

CIFA’s resources and responsibilities are being transferred to the Defense Intelligence Agency , under a new unit called the Defense Counterintelligence (CI) and Human Intelligence (HUMINT) Center.

And on the issue of the Pentagon’s choice to use a word with religious connotations to refer to the reorganization of its domestic spying program, Strobel adds this:

Or, more specifically, will the Defense Department continue to have an expanded role in domestic intelligence-gathering and surveillance?

No clear answer on that question. Today’s Pentagon press release did note: "CIFA’s designation as a law enforcement activity did not transfer to DIA. The new center will have no law enforcement function."

I’m not sure about how the Pentagon distinguishes between its law enforcement religion and its intelligence religion, but I am reminded that when DOD’s IG did a report trying to cover up the TALON debacle, it excused DOD spying on Americans this way:

The TALON reports were generated for law enforcement and force protection purposes. We found no evidence that the U.S. person information for organizations and individuals that were not affiliated with the DoD resulted from an intelligence collection operation. Therefore, the TALON reports were maintained as law enforcement information and were subject to DoD Directive 5200.27, “Acquisition of Information Concerning Persons and Organizations Not Affiliated with the Department of Defense,” January 7, 1980.

DoD Gathering U.S. Person Information for Law Enforcement and Force Protection Purposes. DoD Directive 5200.27 establishes general policy for collecting, processing, storing, and disseminating information on persons not affiliated with DoD. DoD Components are authorized to gather information that is essential for protecting DoD functions and property, personnel security, and operations related to civil disturbance. It specifies that nothing in the directive should be interpreted as prohibiting prompt reporting to law enforcement agencies of any information that might threaten life or property, or violate law, or prohibit keeping a record of such a report. Read more →

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Once Again, Forgeries?

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Everyone’s buzzing about the revelation from Ron Suskind that a letter revealed in December 2003, alleging that Mohammed Atta trained in Iraq, was a CIA-created forgery.

According to Suskind, the administration had been in contact with the director of the Iraqi intelligence service in the last years of Hussein’s regime, Tahir Jalil Habbush al-Tikriti.

“The White House had concocted a fake letter from Habbush to Saddam, backdated to July 1, 2001,” Suskind writes. “It said that 9/11 ringleader Mohammad Atta had actually trained for his mission in Iraq – thus showing, finally, that there was an operational link between Saddam and al Qaeda, something the Vice President’s Office had been pressing CIA to prove since 9/11 as a justification to invade Iraq. There is no link.”

[snip]

Suskind writes in his new book that the order to create the letter was written on “creamy White House stationery.” The book suggests that the letter was subsequently created by the CIA and delivered to Iraq, but does not say how.

Here’s Con Coughlin, the reporter who first reported the letter, on MTP in 2003.

Coughlin: Well, this is an intriguing story, Tom. I mean, basically, when I was in Baghdad, I picked up a document that was given to me by a senior member of the Iraqi interim government. It’s an intelligence document written by the then-head of Iraqi intelligence, Habush to Saddam. It’s dated the 1st of July, 2001, and it’s basically a memo saying that Mohamed Atta has successfully completed a training course at the house of Abu Nidal, the infamous Palestinian terrorist, who, of course, was killed by Saddam a couple of months later. Now, this is the first really concrete proof that al-Qaeda was working with Saddam. I saw your interview with James Woolsey earlier and he was talking about the article in The Weekly Standard. And there is a lot of detail there. But this is a document, and I’ve had it authenticated. This is the handwriting of the head of Iraqi intelligence, Habush, is one of the few people still at large who is in the pack of cards. And it basically says that Atta was in Baghdad being trained under Saddam’s guidance prior to the 9/11 attack. It’s a very explosive development, Tom. [my emphasis]

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