Lawyering the Torture Tapes

/78 Comments/in , /by

I speculated, a week ago, that the Directorate of Operations lawyers who gave Jose Rodriguez the green light to destroy the torture tapes did not know of the outstanding court orders that would have covered the tapes.

Most importantly, it sounds like the Directorate of Operations lawyer who purportedly authorized the destruction of the tapes only said there was no legal reason not to do so.

Included in the paper trail is an opinion from a CIA lawyer assigned to the Clandestine Service that advises that there is no explicit legal reason why the Clandestine Service had to preserve the tapes, according to both former and current officials. The document does not, however, directly authorize the tapes’ destruction or offer advice on the wisdom or folly of such a course of action, according to a source familiar with its contents, who declined to be identified discussing the controversial topic.

Which suggests this lawyer had no fucking clue that Judge Leonie Brinkema had asked the government about such tapes explicitly, within weeks of the time when the tapes were destroyed. I’m guessing that was by design–the only way they could figure out how to get a legal opinion defending the indefensible, the destruction of evidence.

Which is why I think the description in today’s NYT story on the torture tapes is so important.

The officials said that before [Jose Rodriguez] issued a secret cable directing that the tapes be destroyed, Mr. Rodriguez received legal guidance from two C.I.A. lawyers, Steven Hermes and Robert Eatinger. The officials said that those lawyers gave written guidance to Mr. Rodriguez that he had the authority to destroy the tapes and that the destruction would violate no laws.

The agency did not make either Mr. Hermes or Mr. Eatinger available for comment.

Current and former officials said the two lawyers informed the C.I.A.’s top lawyer, John A. Rizzo, about the legal advice they had provided. But officials said Mr. Rodriguez did not inform either Mr. Rizzo or Porter J. Goss, the C.I.A. director, before he sent the cable to destroy the tapes.

“There was an expectation on the part of those providing legal guidance that additional bases would be touched,” said one government official with knowledge of the matter. “That didn’t happen.”

Look at the language of these two versions, taken together. Read more →

Dick versus Scottish Haggis: The Grudge Match

/66 Comments/in , , /by

Arlen "Scottish Haggis" Specter took the opportunity yesterday to enter a letter exchange he had with Dick Cheney into the Congressional Record. Here’s that exchange (see below the letters for my analysis; h/t for Selise to alerting me the transcripts were up):

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC, June 7, 2006.
Hon. Richard B. Cheney,
The Vice President,
Washington, DC.

Dear Mr. Vice President: I am taking this unusual step in writing to you to establish a public record. It is neither pleasant nor easy to raise these issues with the Administration of my own party, but I do so because of their importance,

No one has been more supportive of a strong national defense and tough action against terrorism than I. However, the Administration’s continuing position on the NSA electronic surveillance program rejects the historical constitutional practice of judicial approval of warrants before wiretapping and denigrates the constitutional authority and responsibility of the Congress and specifically the Judiciary Committee to conduct oversight on constitutional issues.

On March 16, 2006, I introduced legislation to authorize the Foreign Intelligence Surveillance Court to rule on the constitutionality of the Administration’s electronic surveillance program. Expert witnesses, including four former judges of the FISA Court, supported the legislation as an effective way to preserve the secrecy of the program and protect civil rights. The FISA Court has an unblemished record for keeping secrets and it has the obvious expertise to rule on the issue. The FISA Court judges and other experts concluded that the legislation satisfied the case-in-controversy requirement and was not a prohibited advisory opinion. Notwithstanding my repeated efforts to get the Administration’s position on this legislation, I have been unable to get any response, including a “no”. Read more →

The Torture Debate

/27 Comments/in , /by

Dan Eggen and Walter Pincus have an interesting article describing the debate between CIA and FBI over whether waterboarding worked with Abu Zubaydah. If the timeline they describe is accurate, then it means that Abu Zubaydah may have given up his most important intelligence before they started torturing him (save, perhaps, fingering Ramzi bin al-Shibh). As to the information he gave up under torture, the CIA and FBI dispute whether it was useful or not. The article suggests the possibility that the CIA may have destroyed the torture tapes to hide the fact that the water-boarding was ineffective (which also might explain why Kiriakou so far hasn’t gotten scolded for telling the world that the United States tortures, since he claims it was effective).

The article explains that Abu Zubaydah was first detained on March 28, 2002 and describes him undergoing traditional interrogation methods from April and August. And apparently, using those traditional methods, they were able to get two of the most public pieces of information from Abu Zubaydah.

There is little dispute, according to officials from both agencies, that Abu Zubaida provided some valuable intelligence before CIA interrogators began to rough him up, including information that helped identify Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11 attacks, and al-Qaeda operative Jose Padilla.

[snip]

Other officials, including Bush, have said that during those early weeks — before the interrogation turned harsh — Abu Zubaida confirmed that Mohammed’s role as the mastermind of the Sept. 11 attacks.

But then, the CIA and Bush wanted more, so they started water-boarding Abu Zubaydah, apparently in August (at least according to the CIA).

Whether harsh tactics were used on Abu Zubaida prior to official legal authorization by the Justice Department is unclear. Officials at the CIA say all its tactics were lawful. An Aug. 1 Justice document later known as the "torture memo" narrowly defined what constituted illegal abuse. It was accompanied by another memo that laid out a list of allowable tactics for the CIA, including waterboarding, according to numerous officials.

Note, there appears to be some debate about this detail. But the assertion by the CIA that it started in August implies that they didn’t start waterboarding Abu Zubaydah until the Bybee memo authorized it. And that the intelligence used to arrest Padilla was gathered without using torture. Of course, the CIA has a big big incentive to say that they didn’t start torturing Zubaydah until they were authorized to, so take that detail with motivation in mind. Read more →

Why Did Reid Pull the Bill?

/155 Comments/in , , /by

This rather snotty article from the WaPo says that Reid didn’t pull the FISA bill yesterday because of Dodd’s efforts.

Reid spokesman Jim Manley said the decision had nothing to do with the efforts of Dodd and his allies. Indeed, for most of yesterday, Dodd appeared to be fighting a losing battle. His initial filibuster effort was steamrolled when the Senate voted 76 to 10 to take up the measure at noon.

Manley is, of course, full of shit. At the very least, Reid did the math to see that Dodd could filibuster this issue until the Christmas break, and since Reid intended to get funding done before the break, he was faced with postponing the break or punting the appropriations bills to the next year. So whatever else caused Reid to pull the bill, Dodd’s demonstration that he was willing to hold the Senate floor was one factor (apparently, Dodd only left the floor once during yesterday’s debate).

Snotty article also points to the amendments as one of the reasons Reid pulled the bill.

But in the face of more than a dozen amendments to the bill and guerrilla tactics from its opponents, Reid surprised his colleagues when he announced there would not be enough time to finish the job.

Now, best as I can count, I think I know of at least five amendments:

  1. Dodd’s amendment to pull immunity from the bill
  2. DiFi’s amendment to declare FISA the exclusive means of electronic tapping
  3. DiFi’s amendment to have the FISA Court review the authorizations the telecoms got before they received immunity
  4. [I think] A Whitehouse amendment to prohibit wiretapping of US Persons abroad
  5. [I think] A Whitehouse amendment to provide oversight of minimization
  6. Update: Beth Meacham says Leahy’s amendment–to substitute the SJC bill–came up just before Reid pulled the bill (thanks Beth).

I’ll try to clarify these later today. In addition, I’m sure there were going to be Republican amendments seeking to allow Bush to wiretap each and every Dirty Fucking Hippie and similar authoritarian fun.

Read more →

Isikoff to Congress: Make Sure You Ask for the Negroponte Memo

/in , /by

For all his faults, Michael Isikoff is certainly a reliable journalist through whom people can launder leaks. Take his story (with Hosenball) today (h/t bmaz). Note the grammar of these first two paragraphs:

In the summer of 2005, then CIA director Porter Goss met with then national intelligence director John Negroponte to discuss a highly sensitive matter: what to do about the existence of videotapes documenting the use of controversial interrogation methods, apparently includ­ing waterboarding, on two key Al Qaeda suspects. The tapes were eventually de­stroyed, and congressional investigators are now trying to piece together an extensive paper trail documenting how and why it happened.

One crucial document they’ll surely want to examine: a memo written after the meeting between Goss and Negroponte, which records that Negroponte strongly advised against destroying the tapes, according to two people close to the investigation, who asked for anonymity when discussing a sensitive matter. The memo is so far the only known documentation that a senior intel official warned that the tapes should not be destroyed. Spokespeople for the CIA and the intel czar’s office declined to comment, citing ongoing investigations. [my emphasis]

This article is framed in terms of what Congressional investigators want, not in terms of what the DOJ investigation is finding. Indeed, the leak about the Negroponte memo appears to come from two people involved in the investigation in some manner–whatever that investigation may be–who want to make sure news of this memo comes out and who seem to have little faith that news of Negroponte’s clear instructions to Goss will come out otherwise.

Also, note the curious no comment in this paragraph. "Spokespeople for the CIA and the intel czar’s office." You might assume, forgetting the last year of jostling within the Bush Administration, that it means that Isikoff called Negroponte’s office and got a no comment. But while Negroponte was "intel czar" when he wrote this memo, he’s not now; he’s at State running things for Condi. So unless Isikoff forgot all these details, I’d suggest this article only appears to record a "no comment" from Negroponte, and it certainly doesn’t exclude a pretty big comment from him. As in, "Mikey, I’d like you to write about this memo I wrote to Porter, because I’m afraid it’s getting buried in the DOJ investigation." Read more →

Did Nacchio Lie, or Just Misunderstand?

/in , /by

The Rocky Mountain News has a good summary of the issues the Tenth Circuit will consider this week in Joseph Nacchio’s appeal. It’s worth reading the whole thing to get an idea of all the issues. But I’m most interested in the representation the RMN makes of the government’s claim regarding Nacchio’s claim that he lost business because he refused to wiretap Americans.

The judge should have let Nacchio present his classified, national security defense. Previous filings indicate Nottingham ruled the defense was irrelevant.

Defense argument

The CEO was optimistic about Qwest in early 2001 because he knew the company was in line to receive top-secret government contracts. Redacted court documents suggest Nacchio planned to argue that Qwest didn’t get the contracts because he refused to participate in a phone spying program.

Prosecution argument

Nacchio’s version of events was "a lie," said First Assistant U.S. Attorney Cliff Stricklin, lead prosecutor on the case, while speaking at a Denver luncheon in October. He said prosecutors were ready to discredit the defense if Nacchio presented it.

Now compare that to what a government source told the NYT for last night’s article.

A government official said the N.S.A. intended to single out only foreigners on Qwest’s network, and added that the agency believed Joseph Nacchio, then the chief executive of Qwest, and other company officials misunderstood the agency’s proposal. Bob Toevs, a Qwest spokesman, said the company did not comment on matters of national security.

One source is saying Nacchio’s lying, the other is saying Nacchio just misunderstood the ask. Read more →

Someone Doesn’t Want the Telecoms to Get Immunity

/in , /by

Because they’re leaking–and leaking big–to James Risen, Eric Lichtblau (and Scott Shane) again. Almost two years to the day since their first big scoop.

For months, the Bush administration has waged a high-profile campaign, including personal lobbying by President Bush and closed-door briefings by top officials, to persuade Congress to pass legislation protecting companies from lawsuits for aiding the National Security Agency’s warrantless eavesdropping program.

But the battle is really about something much bigger. At stake is the federal government’s extensive but uneasy partnership with industry to conduct a wide range of secret surveillance operations in fighting terrorism and crime. The N.S.A.’s reliance on telecommunications companies is broader and deeper than ever before, according to government and industry officials, yet that alliance is strained by legal worries and the fear of public exposure.

To detect narcotics trafficking, for example, the government has been collecting the phone records of thousands of Americans and others inside the United States who call people in Latin America, according to several government officials who spoke on the condition of anonymity because the program remains classified. But in 2004, one major phone carrier balked at turning over its customers’ records. Worried about possible privacy violations or public relations problems, company executives declined to help the operation, which has not been previously disclosed.

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls, according to people aware of the request, which has not been previously reported. They say the arrangement could have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order, which alarmed them.

I need to go hang at FDL for the book salon thread (come meet Bob Drogin!). Afterwards, I’ll come back and fill this thread out some.

One comment though: this story says the change came bc everyone went on fiber. David Kris has shown pretty persuasively that’s not true–the wire/air split wasn’t that different in 1978 when FISA was written. The difference, I suspect, is that now everything is digital. 

Not Three Branches, Not Two Branches, Just One Branch of Government

/in , /by

Apparently, in addition to sending out a chain letter stating "butt out" to five or six members of Congress yesterday, DOJ also sent a letter to Judge Henry Kennedy, telling him not to get involved in the torture tape question (h/t Scarecrow).

The Bush administration told a federal judge it was not obligated to preserve videotapes of CIA interrogations of suspected terrorists and urged the court not to look into the tapes’ destruction.

In court documents filed Friday night, government lawyers told U.S. District Judge Henry H. Kennedy that demanding information about the tapes would interfere with current investigations by Congress and the Justice Department.

Now, BushCo is apparently claiming–to Kennedy, at least–that the CIA was free to destroy the torture tapes since the tapes didn’t come from Gitmo.

Kennedy ordered the administration in June 2005 to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri

Government lawyers told Kennedy the tapes were not covered by his court order because Zubaydah and al-Nashiri were not at the Guantanamo military prison in Cuba. The men were being held overseas in a network of secret CIA prisons. By the time President Bush acknowledged the existence of those prisons and the prisoners were transferred to Guantanamo, the tapes had been destroyed.

Of course, such sophistry won’t work for Leonie Brinkema–whose questions about interrogation tapes would seem to have included the Abu Zubaydah tapes. Nor should they cover the FOIA court battle in Alvin Hellerstein’s court, which pertain to all detainees held abroad. Read more →

Oversight or Politics?

/in , /by

Michael Mukasey has engaged in a remarkable bit of sophistry with his refusal to clue Congress in on the joint DOJ/CIA IG investigation into the destruction of the torture tapes. He explains his decision as an attempt to avoid "any perception that our law enforcement decisions are subject to political influence."

As to your remaining questions, the Department has a long-standing policy of declining to provide non-public information about pending matters. This policy is based in part on our interest in avoiding any perception that our law enforcement decisions are subject to political influence. Accordingly, I will not at this time provide further information in response to your letter, but appreciate the Committee’s interests in this matter. At my confirmation hearing, I testified that I would act independently, resist political pressure and ensure that politics plays no role in cases brought by the Department of Justice. Consistent with that testimony, the facts will be followed wherever they lead in this inquiry, and the relevant law applied.

Of course, the "political influence" Mukasey was asked to address during his nomination hearings was the kind exerted when a Senator or a Congresswoman called the Attorney General privately to demand that a USA either accelerate the prosecution of a political figure or be fired. In this matter, Mukasey has been asked to respond to what is an almost unparalleled degree of bipartisan support for an open inquiry into a matter that just stinks, already, of a cover-up. Leahy and Specter (and Reyes and Hoekstra and Durbin and Biden and more) called for a procedure that had oversight built in.

And Mukasey said no. Read more →

Really Bad Gitmo Propaganda

/in , /by

The increasingly valuable WikiLeaks reveals that a Mass Communications Specialist at Gitmo has been altering Wikipedia and other web resources to hide detainee numbers and otherwise counter reports of poor conditions at the prison.

The US detention facility at Guantanamo Bay has been caught conducting covert propaganda attacks on the internet. The attacks, exposed this week in a report by the government transparency group Wikileaks, include deleting detainee ID numbers from Wikipedia last month, the systematic posting of unattributed "self praise" comments on news organization web sites in response to negative press, boosting pro-Guantanamo stories on the internet news site Digg and even modifying Fidel Castro’s encyclopedia article to describe the Cuban president as "an admitted transexual" [sic].

Shayana Kadidal, Managing Attorney of the Center for Constitutional Rights Guantanamo Global Justice Initiative, said in response to the report:

"The military’s efforts to alter the record by vandalizing Wikipedia are of a piece with the amateurism of their other public relations efforts: [such as] their ridiculous claims that released detainees who criticize the United States in the media have ‘returned to the battlefield’."

We finally got rid of Karen Hughes as Chief Propaganda Specialist. But we’ve apparently got some schmo in Cuba trying to pitch Castro as a transsexual. 

Stuff like this always reminds me of my discovery, as a college professor, that most Americans have the crudest understanding of how language works. I can’t decide how to judge the trade-off. It means our government rarely gets away with propaganda. But it also reflects a widespread inability to think critically.