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Fact-Checking 9/11 Anniversary Report on Info and Dragnets with 9/11 Report

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In Salon, I point out something funny about the report released on Tuesday to mark the 10 year anniversary of the release of the 9/11 Commission report. The report says we must fight the “creeping tide of complacency.” But then it says the government has done almost everything the 9/11 Commission said it should do.

There is a “creeping tide of complacency,” the members of the 9/11 Commission warned in a report released on Tuesday, the 10-year anniversary of the release of their original report. That complacency extends not just to terrorism. “On issue after issue — the resurgence and transformation of al Qaeda, Syria, the cyber threat — public awareness lags behind official Washington’s.” To combat that “creeping tide of complacency,” the report argues, the government must explain “the evil that [is] stalking us.”

Meanwhile, the commissioners appear unconcerned about complacency with climate change or economic decline.

All that fear-mongering is odd, given the report’s general assessment of counterterrorism efforts made in the last decade. “The government’s record in counterterrorism is good,” the report judged, and “our capabilities are much improved.”

If the government has done a good job of implementing the 9/11 Commission recommendations but the terror threat is an order of magnitude worse now, as the report claims, then those recommendations were not sufficient to addressing the problem. Or perhaps the 13 top security officials whom the Commission interviewed did a slew of other things — like destabilizing Syria and Libya — that have undermined the apparatus of counterterrorism recommended by the original 9/11 Commission?

Which is a polite way of saying the 10-year report is unsatisfying on many fronts, opting for fear-mongering than another measured assessment about what we need to do to protect against terrorism.

Perhaps that’s because, rather than conduct the public hearings with middle-level experts, as it boasted it had done in the original report, it instead privately interviewed just the people who’ve been in charge for the last 10 years, all of whom have a stake in fear and budgets and several of whom now have a stake in profiting off fear-mongering?

Suffice it to say I’m unimpressed with the report.

Which brings me to this really odd detail about it.

The report takes a squishy approach to Edward Snowden’s leaks. It condemns his and Chelsea Manning’s leaks and suggests they may hinder information sharing. It also suggests Snowden’s leaks may be impeding recruiting for cybersecurity positions.

But it also acknowledges that Snowden’s leaks have been important to raising concerns about civil liberties — resulting in President Obama’s decision to impose limits on the Section 215 phone dragnet.

Since 2004, when we issued the report, the public has become markedly more engaged in the debate over the balance between civil liberties and national security. In the mid-2000s, news reports about the National Security Agency’s surveillance programs caused only a slight public stir. That changed with last year’s leaks by Edward Snowden, an NSA contractor who stole 1.7 million pages of classified material. Documents taken by Snowden and given to the media revealed NSA data collection far more widespread than had been popularly understood. Some reports exaggerated the scale of the programs. While the government explained that the NSA’s programs were overseen by Congress and the courts, the scale of the data collection has alarmed the public.

[snip]

[I]n March, the President announced plans to replace the NSA telephone metadata program with a more limited program of specific court-approved searches of call records held by private carriers. This remains a matter of contention with some intelligence professionals, who expressed to us a fear that these restrictions might hinder U.S. counterterrorism efforts in urgent situations where speedy investigation is critical.

Having just raised the phone dragnet changes, the report goes on to argue “these programs” — which in context would include the phone dragnet — should be preserved.

We believe these programs are worth preserving, albeit with additional oversight. Every current or former senior official with whom we spoke told us that the terrorist and cyber threats to the United States are more dangerous today than they were a few years ago. And senior officials explained to us, in clear terms, what authorities they would need to address those threats. Their case is persuasive, and we encountered general agreement about what needs to be done.

Senior leaders must now make this case to the public. The President must lead the government in an ongoing effort to explain to the American people—in specific terms, not generalities—why these programs are critical to the nation’s security. If the American people hear what we have heard in recent months, about the urgent threat and the ways in which data collection is used to counter it, we believe that they will be supportive. If these programs are as important as we believe they are, it is worth making the effort to build a more solid foundation in public opinion to ensure their preservation.

This discussion directly introduces a bizarre rewriting of the original 9/11 Report.

Given how often the government has falsely claimed that we need the phone dragnet because it closes a gap that let Khalid al-Midhar escape you’d think the 9/11 Commission might use this moment to reiterate the record, which shows that the government had the information it needed to discover the hijacker was in the US.

Nope.

It does, however, raise a very closely related issue: the FBI’s failure to discover Nawaf al Hazmi’s identity. Read more →

10 Years Later, 9/11 Commission Says President Is Failing to Protect Civil Liberties

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The 9/11 Commission released a 10-year report card on the recommendations they made back in 2004. And one of three recommendations that remains entirely unfulfilled–the only one that is entirely the responsibility of the executive branch–is implementing a board to defend civil liberties.

“[T]here should be a board within the executive branch to oversee adherence to the [privacy] guidelines we recommend and the commitment the government makes to defend our civil liberties.”

An array of security-related policies and programs present significant privacy and civil liberty concerns. In particular, as the FBI and the rest of the intelligence community have dramatically expanded their surveillance of potential terrorists, they have used tools such as National Security Letters that may implicate the privacy of Americans. Privacy protections are also important in cyber security where the government must work with the private sector to prevent attacks that could disrupt information technology systems and critical infrastructure. The same Internet that contains private correspondence and personal information can also be used as a conduit for devastating cyber attacks.

To ensure that privacy and liberty concerns are addressed, the 9/11 Commission recommended creating a Privacy and Civil Liberties Oversight Board to monitor actions across the government. Congress and the president enacted legislation to establish this Board but it has, in fact, been dormant for more than three years.

Describing the PCLOB as “dormant” is actually a huge favor to Obama. It only suggests, but does not make explicit, that before the end of his Administration Bush actually got around to rolling out the PCLOB–evenven if it was so compromised by executive branch control that Lanny Davis felt obliged to resign.

But Obama has avoided even that much oversight by simply letting the PCLOB go unfilled for his entire Presidency. As the report card explains, Obama finally got around to making nominations after Democrats lost the numbers in the Senate to approve his nominees (though one was the Michael Mukasey Assistant Attorney General who rolled out greater investigative powers for the FBI). And even if those two were by some freakish even confirmed, PCLOB would still be short a quorum to do any work.

The Obama administration recently nominated two members for the Board, but they have not yet been confirmed by the Senate. We take the administration at its word that this Board is important: in its May 2009 review of cyber security policy, the administration noted the Board’s importance for evaluating cyber security policies. We urge the president to appoint individuals for the remaining three positions on the board, including the chairman, immediately, and for the Senate to evaluate their nominations expeditiously.

[snip]

If we were issuing grades, the implementation of this recommendation would receive a failing mark. A robust and visible Board can help reassure Americans that these programs are designed and executed with the preservation of our core values in mind. Board review can also give national security officials an extra degree of assurance that their efforts will not be perceived later as violating civil liberties.

PCLOB is an entity mandated by law. But the President refuses to comply with that law to provide for some oversight over civil liberties, no matter how inadequate.

It’s not me accusing Obama of failure on this point–it’s a bipartisan commission primarily concerned with the national security of the country. But they are, in fact, calling him a failure.

Did Addington Oppose 9/11 Commission Questions to Avoid Independent Evaluation of Torture Program?

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Shortly after news broke that CIA destroyed the torture tapes, the 9/11 Commission issued a letter complaining that they had not been told of–much less been allowed to review–the torture tapes.

The commission’s mandate was sweeping and it explicitly included the intelligence agencies. But the recent revelations that the C.I.A. destroyed videotaped interrogations of Qaeda operatives leads us to conclude that the agency failed to respond to our lawful requests for information about the 9/11 plot. Those who knew about those videotapes — and did not tell us about them — obstructed our investigation.

They released a memo from Philip Zelikow describing how the Administration refused to allow the 9/11 Commission direct access to detainees in early 2004.

The full Commission considered this issue in a meeting on January 5, 2004 and decided the CIA responses were insufficient. It directed the staff to prepare a letter to administration officials that would make the dispute public. There were then discussions between Hamilton and White House counsel Alberto Gonzales and several meetings of CIA lawyers with Commission staff. The Commission offered various compromises to avoid disrupting the interrogation process, including direction or observation of questioning in real-time using one-way glass, adjoining rooms, or similar techniques. In a January 15, 2004 memo to Gonzales, Muller, and Undersecretary of Defense Steve Cambone, Zelikow wrote, “We remain ready to work creatively with you on any option that can allow us to aid the intelligence community in cross-examining the conspriators on many critical details, clarify for us what the conspirators are actually saying, and allow us to evaluate the credibility of these replies.”

But these negotiations made little progress. Hamilton and commissioner Fred Fielding then met with Gonzales, Tenet, Secretary of Defense Rumsfeld, and Chris Wray from the Department of Justice. The administration offered to take sets of written followup questions, pose them to detainees, relay answers back to the Commission, and take further questions. In a January 26, 2004 meeting the Commission accepted this proposal as the best information it could obtain to address its longstanding questions.

Today’s document dump includes an interesting snapshot of the Administration response to the Commission request. (PDF 25-30)

It appears that David Addington took the lead on refusing the 9/11 Commission’s request. It appears Addington got the draft of the letter from 9/11 Commission–which was addressed to Rummy and George Tenet. Tenet and Addington clearly had a conversation about how to respond. But it seems that Addington drafted the response, got Condi, Andy Card, and Alberto Gonzales to review it, and then sent it to Tenet (and, presumably, Rummy) to okay and sign the letter.

In other words, OVP had the lead in refusing the 9/11 Commission’s request for more information from the detainees.

The document is also interesting for the underlining on the letter from the Commission. While it’s not clear who made the markings (though it seems likely to be Addington since that version of the letter clearly came from him), whoever made them appears to have reacted strongly against the Commission’s intention to independently evaluate the detainees and their interrogations. Read more →

Zelikow, the 9/11 Commission, and Effectiveness

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If you’ve been paying attention, you know I’ve been poring through the 9/11 Report to figure out how useful the interrogation reports from the waterboarded detainees were, and when they made them.

That exercise shows that the 9/11 Report found just 10 pieces of intelligence from Abu Zubaydah’s interrogation reports informative and credible; it found just 16 pieces of such intelligence in al-Nashiri’s interrogation reports. And while the Commission did find KSM’s interrogation reports to be incredibly useful, an incomplete index (I’m working on this, but it’s on the back burner for the next week) of the references to KSM show that many of his most productive interrogation sessions came long after he was waterboarded. And, as Philip Zelikow made clear in a memo relating to the torture tape destruction, there were abundant other problems with the quality of the interrogation reports coming from CIA, too.

I emailed Zelikow yesterday to see if he would answer some more questions on this. He hasn’t responded and I haven’t had time to follow-up.

But it looks like I may not have to. Zelikow promises to address some of these issues shortly.

I will have more to say on the topic of effectiveness later. 

Of particular interest, he makes this promise to address the effectiveness of torture in the context of the work the 9/11 Commission did with Ali Soufan, the FBI interrogator who called George Bush a liar yesterday.

I met and interviewed Soufan in the course of my work at the 9/11 Commission, while he was still doing important work at the FBI. From my commission work, my fellow staffers and I had direct knowledge about several of the specific assertions Soufan makes in this piece: about Abu Zubaydah, Ramzi Binalshibh, and Khalid Sheikh Mohammed. My fellow staffers and I considered Soufan to be credible. Indeed, Soufan is fluent in Arabic, and he seemed to us to be one of the more impressive intelligence agents — from any agency — that we encountered in our work.

If the 9/11 Commission spoke with Soufan about AZ’s treatment (Zelikow does not say they did, though he does say they asked why Soufan’s KSM-expert colleague wasn’t involved in those interrogations), it might explain why only 10 pieces of intelligence from AZ show up in the 9/11 Report. 

In this post, Zelikow also confirms something I suggested this afternoon. Read more →

Abu Zubaydah: Waterboarded 83 Times for 10 Pieces of Intelligence

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The torture apologists are out in force, insisting that torture produces useful information. Cheney’s even promising to release information from CIA cataloging all the useful information that came from torture.

But we don’t have to wait for Cheney to make good on his promise. We already have a way to assess how much intelligence we got directly from torturing Abu Zubaydah and Khalid Sheikh Mohammed: the 9/11 Report. After all, the 9/11 Report integrates a huge amount of information from interrogation reports, and cites them all meticulously. As early as June 6, 2003, the 9/11 Commission asked for, "“all TDs and other reports of intelligence information obtained from interrogations” of forty named individuals, including Abu Zubaydah and (apparently) Khalid Sheikh Mohammed, and they used what they got in return to write their report. So if there was useful information in those reports, they presumably got it.

Here was a bipartisan group–including many staffers and members with extensive national security backgrounds–attempting to learn everything it could about al Qaeda, poring through interrogation reports produced as a result of torture, tracking inconsistencies in the intelligence, corroborating that intelligence where possible with documents and other testimony, and ultimately selecting what it felt was useful in telling the story of al Qaeda. While certainly not a perfect assessment of what was useful (I’ll explain why below), it provides one of the best unbiased ways to measure how useful this intelligence was.

And in the case of Abu Zubaydah, such an assessment is horrifying. 

In the entire 9/11 Report, just ten pieces of information are sourced to Abu Zubaydah’s interrogation reports.

Ten.

And there are several other damning details that come from this analysis. One of the ten pieces of intelligence that appears in the 9/11 Report–regarding Abu Zubaydah’s role running terrorist training camps–came from July 10, 2002, before the CIA first received oral authorization to use torture. Thus, it either came from persuasive, rather than coercive, techniques. Or it came from treatment that had not been legally approved.

In addition, the 9/11 Report doesn’t cite interrogation reports addressing [the lack of] ties between Iraq and al Qaeda directly; it cites a 2003 memo from Doug Feith that in turn cites 2003 interrogations of AZ and KSM. It’s unclear whether AZ’s and KSM’s earlier denials of links between al Qaeda and Iraq simply don’t show up in the earlier interrogation reports, or whether such information was deemed not credible in earlier reports. But the absence of such references, when we know interrogators were pushed to ask about them, raises questions about the integrity of the interrogation reports.

Of the ten pieces of information that appear in the Report, just one comes from the month when AZ was under most intensive interrogation. As it pertains to Rahim al-Nashiri, who had not yet been captured, it might be said to have an influence on his capture. Though appears to be background on who he was rather than details about how to find him. 

Read more →

Yet More Communications Dirty Business: Karl Rove and Philip Zelikow

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By this point, it should surprise no one that Karl Rove does a lot of dirty business using his phone and blackberry. Apparently, that extends to softening the reports of the 9/11 Commission: a Philip Shenon book coming out in February will reveal that Rove carried on back-channel discussions with Philip Zelikow, the Commission’s Executive Director (h/t Steven Aftergood), for some time after the Commission told him to stop speaking with Senior Administration Officials.

In a revelation bound to cast a pall over the 9/11 Commission, Philip Shenon will report in a forthcoming book that the panel’s executive director, Philip Zelikow, engaged in “surreptitious” communications with presidential adviser Karl Rove and other Bush administration officials during the commission’s 20-month investigation into the 9/11 attacks.

[snip]

Karen Heitkotter, the commission’s executive secretary, was taken aback on June 23, 2003 when she answered the telephone for Zelikow at 4:40 PM and heard a voice intone, “This is Karl Rove. I’m looking for Philip.” Heitkotter knew that Zelikow had promised the commissioners he would cut off all contact with senior officials in the Bush administration. Nonetheless, she gave Zelikow’s cell phone number to Rove. The next day there was another call from Rove at 11:35 AM.

[snip]

In late 2003, around the time his involuntary recusal was imposed, Zelikow called executive secretary Karen Heitkotter into his office and ordered her to stop creating records of his incoming telephone calls. Concerned that the order was improper, a nervous Heitkotter soon told general counsel Marcus. He advised her to ignore Zelikow’s order and continue to keep a log of his telephone calls, insofar as she knew about them.

Although Shenon could not obtain from the GAO an unredacted record of Zelikow’s cell phone use—and Zelikow used his cell phone for most of his outgoing calls—the Times reporter was able to establish that Zelikow made numerous calls to “456” numbers in the 202 area code, which is the exclusive prefix of the White House. [my empahsis]

Click through for a description of how Zelikow was able to prevent the Commission from describing Condi as incompetent (I know–we all know it to be true, but it’d have been nice to get it in writing).

I’m particularly interested in the timing of this. Read more →

“The 9/11 Commission Wants Internal Emails”

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I found something rather interesting in Scooter Libby’s notes for July 8, 2003 (here’s the transcription of his chickenscratch). At the tail end of a conversation about the 9/11 Commission (which may have taken place at the White House’s Senior Staff Meeting that morning), and at the beginning of more obsessive notes about Joe Wilson [on how these notes work, see the update below], Libby wrote:

9/11 Commission wants internal e-mails, mark-up drafts of President’s speech, materials for President’s discussions with Blair, etc.

Now, I have no idea what they wanted internal emails pertaining to–though the reference to a Bush speech and discussions with Blair indicates it was a speech about war, most likely the September 20, 2001 speech announcing his response to the 9/11 attacks. Though, the Commission briefly reviewed the early (2001) discussions about hitting Iraq, as well as Afghanistan, and Libby’s note appeared just one day before the Commission held a hearing on Al Qaeda’s relationship with other parts of the Arab world, including Iraq (Laura Mylroie even testified!).

But I find the mention interesting, given all the attention to the White House’s faulty email archiving system. Libby’s note presumably reflects discussions of the 9/11 Commission’s First Interim Report, released on the same day. In the report (and at the press conference accompanying it), Commission described the status of EOP’s document requests as follows:

First, the executive office of the president. The document requests have been filed with the executive office. Those documents cover every major part of the executive office of the presidency, including, of course, the National Security Council. We will not go into detail on the substance of these or other requests. We can say that we have received and are in the process of receiving access to a wide range of sensitive documents, and that to date no requested access has been denied. Many more documents are being requested. Conditions have been imposed, in some cases, with respect to our access to and usage of materials, and our discussions will continue.

Though the same interim report bragged that the Commission had received detainee interviews, and we know from Phillip Zelikow’s recent report on the CIA’s stonewalling regarding any tapes of detainee interrogations that as soon as June 2003, the CIA was withholding responsive materials.

Read more →

9/11 Commission Decries Obstruction

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Thomas Kean and Lee Hamilton must have been waiting all holiday long to launch this grenade against the Administration just as Congress returns and the torture tape inquiry heats up.

MORE than five years ago, Congress and President Bush created the 9/11 commission.

[snip]

The commission’s mandate was sweeping and it explicitly included the intelligence agencies. But the recent revelations that the C.I.A. destroyed videotaped interrogations of Qaeda operatives leads us to conclude that the agency failed to respond to our lawful requests for information about the 9/11 plot. Those who knew about those videotapes — and did not tell us about them — obstructed our investigation.

The op-ed goes on to lay out the key details included in Zelikow’s memo, the chronology of dates when the 9/11 Commission asked for interrogation records that would have included the torture tapes the CIA later went on to destroy. Of note, Kean and Hamilton clearly include the White House among those who obstructed the Commission’s work.

There could have been absolutely no doubt in the mind of anyone at the C.I.A. — or the White House — of the commission’s interest in any and all information related to Qaeda detainees involved in the 9/11 plot. Yet no one in the administration ever told the commission of the existence of videotapes of detainee interrogations.

I’ll be curious to see whether and how Kean and Hamilton can ratchet up attention on this issue. Unlike the several judges who were ignored in their requests regarding the tapes, Kean and Hamilton are in a position to really hammer this issue. And unlike Congress (who appears to have been lied to about matters depicted in the tapes), Kean and Hamilton seem willing to call obstruction obstruction. They do acknowledge that they aren’t the ones who will get to investigate the torture tape destruction.

As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others. What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the greatest tragedies to confront this country. We call that obstruction.

But it’s probably worth noting that they’re launching this grenade from Mukasey’s home town.

Recycling Torture Timelines

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Per Jeff’s suggestion, I took a closer look at Zelikow’s memo on how the CIA stiffed the 9/11 Commission on evidence relating to interrogations of Abu Zubaydah and al-Nashiri. I’ll come back and comment on it in more detail–but I was struck by how closely the requests coincided with the beginnings of the Abu Ghraib scandal and Tenet’s resignation. So for now, I’m just adding some dates to this timeline (which I’ve integrated my torture tapes timeline). Look closely at the roles of Rummy, Cambone, Tenet, and McLaughlin.

August 1, 2002: Bybee Memo on torture governing interrogations by CIA

March 2003: Second John Yoo opinion on torture, governing interrogations by DOD

June 6, 2003: 9/11 Commission requests "’all TDs and other reports of intelligence information obtained from interrogations’ of forty named individuals from CIA, DOD, and FBI

August 31 to September 9, 2003: Major General Geoffrey Miller ordered to Abu Ghraib from Gitmo

September 22 and September 25, 2003: 9/11 discussions with CIA about interrogation process

October 1, 2003: Hamdi petition filed with SCOTUS

October 14 and 16, 2003: 9/11 Commission sends questions to CIA General Counsel Scott Muller on interrogations

October 31 and November 7, 2003: Response to 9/11 Commission with little new information

Fall 2003: General Sanchez visits Abu Ghraib regularly

December 2003: Jack Goldsmith tells Rummy he will withdraw March 2003 opinion on torture

December 23, 2003: 9/11 Commission requests access from Tenet to seven detainees; Tenet says no; Lee Hamilton asks for any responsive documents

January 5, 2004: 9/11 Commission decides CIA responses inadequate

January 9, 2004: SCOTUS agrees to hear Hamdi

January 13, 2004: Joseph Darby gives CID a CD of images of abuse

January 15, 2004: Memo to Gonzales, Muller, and Steve Cambone asking for more information

January 15, 2004: General Craddick receives email summary of story

January 19, 2004: General Sanchez requests investigation of allegations of abuse

January 20, 2004: Craddick and Admiral Keating receive another notice of abuse

January 2004: General Myers learns of abuse

January 26, 2004: After negotiations with Gonzales, Tenet, Rummy, and Christopher Wray from DOJ, 9/11 Commission accepts asking questions through intermediary

January 31, 2004: Taguba appointed to conduct investigation

February 9, 2004: 9/11 Commission requests “all TDs and reports related to the attack on the USS Cole, including intelligence information obtained from the interrogations of Abd al Rashim al Nashiri” from CIA

February 2 to 29, 2004: Taguba’s team in Iraq, conducting investigation

March 9, 2004: Taguba submits his report

Late March, 2004: 60 Minutes II starts on story

April 2004: General Miller ordered to Abu Ghraib to fix problems

April 7, 2004 (approximately): 60 Minutes II acquires photos authenticating Abu Ghraib story

Mid-April, 2004: General Myers calls Dan Rather to ask him to delay story

Mid-April, 2004: Taguba begins to brief officers on his report ("weeks" before his May 6 meeting with Rummy) Read more →

Timing, Again

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Marty Lederman points out that today’s NYT story clarifies one of the issues I’ve been trying to pinpoint on timing.

If the CIA had destroyed its interrogation tapes during the pendency of the 9/11 Commission investigation, that almost surely would have constituted felony violations of 18 U.S.C. 1512(c)(1). So they retained the tapes during that investigation. However, as the New York Times reports tomorrow, the CIA very carefully avoided informing the 9/11 Commission of the existence of the interrogation tapes — which would have been extremely valuable information for the Commission to use. "A C.I.A. spokesman said that the agency had been prepared to give the Sept. 11 commission the interrogation videotapes" . . . but the Commission never said the magic words!: The Commission sought "documents," "reports" and "information" related to the interrogations from the CIA — but "staff members never specifically asked for interrogation videos."

[snip]

Here’s the really amazing bit, however: "Because it was thought the commission could ask about the tapes at some point, they were not destroyed while the commission was active," said a CIA spokesperson.

Then, as soon as the Commission issued its report and closed up shop, the CIA quickly destroyed the evidence, precisely because there was no longer any proceeding pending (and arguably no foreseeable proceeding that would trigger 1512(c)(1) culpability, although that is far from certain). Read more →