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Jose Rodriguez’ Mushroom Cloud of Torture

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I suspect it will be a full time job keeping up with all the Jose Rodriguez’ lies we’ll hear as he sells his book and his excuse for torture. But for the moment, look at this detail:

Jose Rodriguez: We were flooded with intelligence about an imminent attack. That al Qaeda had an anthrax program, and that they were planning to use it against us. And that they were seeking nuclear materials to use in some type of nuclear weapon. So we were facing a ticking, time bomb situation and we were very concerned.

I’ll come back to the anthrax later. But note that Rodriguez claims that we had to use torture because Al Qaeda was seeking nukes to use in some type of weapon.

In part, Rodriguez is doing the same thing Maureen Mahoney did when trying to protect Jay Bybee: pointing to intelligence Abu Zubaydah gave up under torture–regarding a Jose Padilla dirty bomb plot–as justification for the torture of AZ to get that same information.

But it also highlights how this program was designed to obtain false confessions. Here is Abd al Rahim al-Nashiri’s description of how his torturers invited him to give a false confession about nukes.

Number six. Usama bin Laden having a nuclear bomb. [REDACTED]. Then they used to laugh. Then they used to tell me you need to admit to those information. So I used to invent some of the stuff for them to say Usama bin laden had a, had a nuclear bomb. And they use to laugh and they were very happy. They were extremely happy because of the news. Then after that I told them, listen. He has no bomb. [my emphasis]

Jose Rodriguez says we had to torture because there were rumors of nukes (the same apparently unfounded claim the current Administration uses to justify drone strikes). Nashiri reveals that his torturers told him he had to confirm that rumor.

When he did, they laughed.

Did they need to torture because they had rumors of nukes? Or did they need to torture because they needed claims of nukes?

Why Jose Rodriquez Should Be In Prison, Not On A Book Tour

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As Marcy noted, Adam Goldman and Matt Apuzzo of the AP have gotten their hands on an early copy of Jose Rodriquez’s new screed book, “Hard Measures”. The one substantive point of interest in their report involves the destruction of the infamous “torture tapes”. What they relate Rodriquez saying in his book is not earth shattering nor particularly new in light of all the reporting of the subject over the years, but it is still pretty pretty arrogant and ugly to the rule of law:

The tapes, filmed in a secret CIA prison in Thailand, showed the waterboarding of terrorists Abu Zubaydah and Abd al-Nashiri.

Especially after the Abu Ghraib prison abuse scandal, Rodriguez writes, if the CIA’s videos were to leak out, officers worldwide would be in danger.

“I wasn’t going to sit around another three years waiting for people to get up the courage,” to do what CIA lawyers said he had the authority to do himself, Rodriguez writes. He describes sending the order in November 2005 as “just getting rid of some ugly visuals.”

As you may recall, specially assigned DOJ prosecutor John Durham let the statute of limitations run out on prosecuting Jose Rodriquez, and others directly involved, including four Bush/Cheney White House attorneys (David Addington, Alberto Gonzales, John Bellinger and Harriet Miers) involved in the torture tapes destruction, as well as two CIA junior attorneys, on or about November 9, 2010. There was really never any doubt about what Rodriquez’s motivation was in light of the fact he destroyed the tapes of Abu Zubaydah and al-Nashiri within a week of Dana Priest’s blockbuster article in the Washington Post on the US “black site” secret prisons.

But, just as there was no doubt, then or now, as to the motivation of Rodriquez and/or the others, there was similarly never any doubt about the legitimate basis for criminal prosecution. The basic government excuse was they could not find any proceeding in which the torture tapes were material to so as to be required to have been preserved. For one thing, Judge Alvin Hellerstein determined the tapes were indeed material to the ACLU FOIA suit and within the purview of their evidentiary hold (even though he refused to hold CIA officials in contempt under the dubious theory they may not have had notice).

More important, however, was the immutable and unmistakable fact that the torture tapes were of specific individuals, al-Qaeda members Abu Zubaydah and Abd al-Rahim al-Nashiri, who, at the time of destruction of the tapes, were in detention awaiting trial, whether it be in an Article III Read more →

George Tenet’s Bureaucratic CYA

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Let me divert from my obsession on the CIA’s efforts to hide references to what I believe is the September 17, 2001 Memorandum of Notification authorizing torture and a whole lot else to talk about what a neat bureaucratic trick George Tenet pulled. As I’ve confirmed, what the CIA is going to some length to hide is the second half of the title of the document George Tenet drew up to try to impose some kind of controls on the CIA’s torture program in January 2003. The title reads, “Guidelines on Interrogations Conducted Pursuant to the” with the authorities that authorize such interrogations redacted.

But let’s take a step back and put that document–with its now highly sensitive invocation of the authorities on which the torture program rested–in context.

As far as I’m aware, unlike Michael Hayden and John Rizzo, Tenet has not publicly confirmed a Presidential Memorandum of Notification authorized the torture program. In his memoir, he describes a briefing he conducted on September 15, 2001, two days before Bush signed the MON. He describes asking for authority to detain al Qaeda figures.

We raised the importance of being able to detain unilaterally al-Qa’ida operatives around the world.

He also pitched using drones to kill al Qaeda operatives.

We suggested using armed Predator UAVs to kill Bin Laden’s key lieutenants, and using our contacts around the world to pursue al-Qa’ida’s sources of funding, through identifying non-governmental organizations (NGOs) and individuals who funded terrorist operations.

And he describes a whole bunch of other asks, like partnering with the Uzbekistan and–as part of another ask–with Syria and Libya. In short, Tenet describes asking for authorization to do the things we know are included in that MON.

Then, he describes watching Bush kick off the war on September 20, reflecting,

By then, as I remember, the president had already granted us the broad operational authority I had asked for.

Well, sucks to be Tenet, because as it happens, Bush authorized those activities broadly, but never put in writing that the authorization to detain al Qaeda figures included the authorization to torture

A few days after the attacks, President Bush signed a top-secret directive to CIA authorizing an unprecedented array of covert actions against Al Qaeda and its leadership. Read more →

DOJ Once Again Succeeds Where DOD Has Failed

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Umar Farouk Abdulmutallab?

Going to prison for life–Florence SuperMax in CO, which is a much tougher prison than Gitmo.

He has been in custody for 2 years and 53 days.

Abd al Rahim al-Nashiri? He has been in custody for roughly 9 years, 3 months, and 15 days, for a crime committed over 11 years ago. His trial process is only beginning.

Khalid Sheikh Mohammed? He has been in custody for just short of 9 years, for a crime he committed 10 years, 5 months, and 5 days ago. His trial won’t begin this year.

This sending terrorists to jail for the rest of their life isn’t that hard. It’s only hard when you try to invent an entirely new legal system to do the job, rather than using the perfectly functional legal system that has proven its ability to do this over and over before.

Update: Adam Serwer talks about how Abdulmutallab made us so scared we passed the NDAA. I would add, he also made us all subject to gate grope.

Osama bin Laden: “The ship of Ali Abdullah Saleh is the only ship we have”

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In May 1999, some Yemeni al Qaeda affiliates planned a series of car thefts to fund a rescue attempt of one of their members who had been sentenced to death. The Yemeni government discovered  the plot and raided an al Qaeda safe house. Osama bin Laden’s sometime bodyguard, Abu Jandal, was one of the men questioned by authorities. As authorities continued to pursue the case, Abu Jandal decided to return to Afghanistan and bin Laden. After he told OBL of the raid and explained it had to do with planned theft, not a crackdown on larger al Qaeda operations, according to Ali Soufan’s Black Banners,

“That is good to hear,” bin Laden said, and a look of calm relief passed over his face as he invoked the president of Yemen: “The ship of Ali Abdullah Saleh is the only ship we have.”

Since that time, of course, Al Qaeda bombed the USS Cole while it was arriving in Yemen. Abd al Rahim al-Nashiri was eventually caught, tortured in a black site, brought to Gitmo, and charged for the Cole bombing.

Saleh, for his part, recently came on his own “ship” to the US for medical treatment (and to escape increasing opposition to his rule).

And so, given the ready accessibility of a witness who might testify to Yemen’s close relations with al Qaeda at the time of the Cole bombing, al-Nashiri’s defense team asked to subpoena Saleh. But the State Department is having none of it.

Yemeni President Ali Abdullah Saleh is in the United States with full diplomatic immunity, Secretary of State Hillary Clinton’s legal advisor has written the Pentagon, and should not be compelled to provide sworn testimony for the Guantánamo war court.
State Department Legal Advisor Harold Hongju Koh wrote the letter Monday to the Pentagon’s chief war crimes prosecutor, Army Brig. Gen. Mark Martins, opposing a request for a subpoena by lawyers for an alleged al Qaida bomber facing a tribunal at the U.S. Navy base in southeast Cuba.

[snip]

But Nashiri defense lawyer Richard Kammen said there’s public evidence that Saleh “sought to limit the investigation of the Cole bombing,” that “he personally handled evidence” and “members of his government are alleged to be complicit in the Cole bombing.”

I presume the government will have their way, here–after all this is a Gitmo military commission, not a civilian court.

But I also imagine this concern for Saleh’s diplomatic immunity comes as much from a desire to hide just how close Saleh has been with al Qaeda, given our subsequent reliance on him as a counterterrorism partner.

Abd al Rahim al-Nashiri Delays His Own Trial until after Presidential Election

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As Muna Shikaki and Carol Rosenberg just tweeted, Abd al Rahim al-Nashiri requested–and the military judge granted–that his trial not start until November 9, 2012. Which would put it several days after the Presidential election.

The logic for this decision seems clear to me. First, the government has made it clear al-Nashiri won’t be released if he is acquitted in any case. Add in the fact that the punishment jail is, at least for some prisoners, worse than the detention jail at Gitmo, and postponing the trial might actually improve al-Nashiri’s conditions until such time as the government convicts him (even assuming the military court doesn’t decide to execute him). And if the government does decide to go ahead with other case, rules on things like hearsay may have evolved.

I also suspect the delay will mess with Obama Administration plans for the roll-out of the military commissions. They had picked al-Nashiri’s case to be the first. Now, they’ll either have to delay all the other trials, including that of the 9/11 plotters, or they’ll have to test out their new system on detainees whose cases might be even more legally difficult than al-Nashiri’s. Furthermore, the delay will heighten Obama’s failure to make good on his promise to close Gitmo.

Frankly, the people who get most screwed by this move are the families of USS Cole victims. They’ve been waiting for a decade already for justice; this puts off that time for another year.

But that’s part of the problem with the Gitmo Show Trials. The government claims, simultaneously, that these trials deliver some kind of justice but also that it can hold someone who has been acquitted, which takes away any incentive for detainees to press for a speedy trial. And since there’s not a law allowing the government to impose a speedy trial–but rather a protection giving a prisoner a speedy trial unless he waives it–it’ll be interesting to see whether the Administration pushed back against this (the Prosecutor has apparently already accepted it).

Update: As bmaz points out, al-Nashiri is also suing the Convening Authority for trying him in a military court for alleged crimes that did not happen during a war.

The only question this Court must answer is a pure question of law. Did the President or Congress choose to invoke their war powers and apply the law of war in Yemen at any time relevant to the allegations against Plaintiff? The answer is no.

Plaintiff therefore asks this Court to enter a judgment declaring that the Defendant has exceeded his authority by issuing military commission orders for alleged crimes that did not occur in the context of an armed conflict subject to the laws of war.

The delay will also allow this suit to move forward.

Gitmo’s Commanders and My 4-Year Old Niece Play Games

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I enjoyed watching my 4-year old niece wallop Mr. EW in a game of “Matches” last week. She kept making up new rules every turn, ensuring Mr. EW didn’t know precisely what the rules of the game were.

It provided me an excellent opportunity to teach her what the word “shrewd” means–“A special kind of smart.”

I’m less amused by this: Gitmo’s second new set of Military Commission rules in as many years. Last year, they released the 2010 Manual for Military Commissions hours before Omar Khadr’s trial started. This year, they’re introducing the 2011 Regulation for Military trial days before the Abd al Rahim al-Nashiri death penalty case starts. But make no mistake, this “Regulation” amends last year’s Manual. As Carol Rosenberg reports:

The Defense Department released the document two days ahead of the arraignment of a Saudi-born captive charged with murder and terrorism for al Qaida’s suicide bombing of the USS Cole off Yemen.

[snip]

Almost simultaneously, the document appeared on the war court’s new nearly $500,000 website, numbering 202 pages and including some changes to procedures. For example, each case’s military judge now has the authority to approve the costs of a so-called “learned counsel,” typically a civilian defense attorney with extensive experience defending capital murder cases. It also outlined procedures through which observers could protest, through a chief clerk, a judge’s decision to declare an aspect of a trial as “protected.”

[snip]

The Pentagon’s new Deputy Secretary of Defense, Ashton B. Carter, signed the new document on Sunday. He said in a foreword that it provided guidance at times that differed from the way the U.S. military court martials its own troops. “That difference is necessitated by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need.”

Legal experts were poring over the document Monday night.

Meantime, Human Rights Watch attorney Andrea Prasow called the timing troubling.

“The very idea that new rules could be issued moments before someone is arraigned to face the death penalty offends any notion of due process,” said Prasow, who has worked on war court defense cases. “The stamp of illegitimacy has been firmly affixed to Nashiri’s case.”

To make it all the more pathetic, check out the image at the top of the page.

Nothing

That’s the top corner of these brand new rules. From DOD. The biggest bureaucracy in the world.

With no headers.

How the hell can DOD release new rules governing a capital case without even bothering to include headers or footers (the document has simple centered page numbers) to indicate these are actually the rules issued by the biggest bureaucracy in the world?

It’s like some sergeant somewhere who doesn’t know how to operate Microsoft Word was tweaking these until an hour ago.

Seriously, I haven’t even gotten into the contents of these new rules yet. But they look like a–very long–high school project, not the considered rules of  court of law.

Is DOD Trying to Bypass the Gitmo Press Corps (AKA Carol Rosenberg)?

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Yesterday, we had an interesting discussion about whether efforts by Gitmo Chief Prosecutor Mark Martins to expand viewing of Gitmo military commissions was about cover-up or transparency. I suggested that it might be something in-between–an effort to bypass members of the existing Gitmo press corps, who know a lot more about Gitmo and detainee histories than those of us following along at home and therefore can provide context the government finds inconvenient. But at the same time, bypassing the Gitmo press corps will limit the government’s ability to gag reporters as they did when Rosenberg and others reported on Joshua Claus. And expanding access did have other real benefits, like letting victims follow the trials without onerous travel to Gitmo.

That is, I suggested it was largely a different strategy for controlling information.

So I was rather interested to see this passage in Carol Rosenberg’s report on a shiny new–but substantively incomplete–website Gitmo had set up.

The new website appeared on Wednesday morning without an announcement from the Secretary of Defense’s Public Affairs office, which has handled military commissions releases for the past six years. Instead, a former Bush era Defense Department deputy responsible for detention issues broke the news on a Heritage Foundation blog. Cully Stimson, himself a Navy reserve judge, said the new site heralded a new ear of transparency in the at-times secretive court proceedings.

It was the second revelation from the Obama Defense Department to be revealed in conservative circles. Sunday, The Weekly Standard magazine included a profile of the new Obama era War Crimes Prosecutor, Army Brig. Gen Mark Martins, pledging to beam closed-circuit broadcasts of remote Guantánamo proceedings to both victims and media viewing centers on U.S. soil.

Not only won’t the Public Affairs office tell Rosenberg any useful news about the upcoming Abd al Rahim al-Nashiri trial (nor had they posted documents his lawyers recently filed; though she did just tweet that al-Nashiri’s trial is on), but what news they were released was going through decidedly conservative channels: the Weekly Standard and the Heritage Foundation.

And surprise surprise, those conservative channels deem this shiny new technology that doesn’t give us a full picture “transparency.”

Is DOD suggesting that to conservatives, a website looks like information whether or not there’s anything in that information?

Whether or not this is the plan, to bypass the people who actually know something about this place and these people by wowing people who will be impressed by empty bells and whistles, it is telling that Gitmo is going to conservative sites. If your idea of “transparency” is only to show the kind of information that conservatives will like, then it’s pretty clear you’re hiding something.

As Expected, DOD Charges al-Nashiri; Will the US Also Charge His Torturer?

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DOD has filed charges against Abd al Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing. (h/t jl)

The Department of Defense announced today that military commissions prosecutors have sworn charges against Abd al Rahim Hussayn Muhammad al Nashiri of Saudi Arabia.

The chief prosecutor has recommended that the charges against Nashiri be referred as capital. Capital charges may only be pursued with the convening authority’s approval.

The charges allege that Nashiri was in charge of the planning and preparation for the attack on USS Cole (DDG 67) in the Port of Aden, Yemen, on Oct. 12, 2000. The attack killed 17 sailors, wounded 40 sailors, and severely damaged the ship by blowing a 30-foot by 30-foot hole in her side. The charges also allege that Nashiri was in charge of planning and preparation for an attempted attack on USS The Sullivans (DDG 68) as that ship refueled in the Port of Aden on Jan. 3, 2000.

Now, aside from the question of whether it is illegal to target a series of military targets, I have no problem with the government finally charging al-Nashiri.

But I wonder whether the government is also, finally, going to charge the people who staged a mock execution using a power drill against al-Nashiri–basically doing the one thing even John Yoo said would be illegal? Last we heard, after all, Albert, who staged the mock execution, was training CIA officers. And Albert’s supervisor, Ron, now heads CIA’s European Division. And while the US told Spain back in March that they were still investigating, the 8 year statute of limitations on torture that occurred before January 28, 2003 would have already expired.

As with all their other torture cases, they’re just letting the statutes expire.

So congratulations, DOD, for finally charging one of the alleged worst of the worst. Now when will the government charge those who tortured al-Nashiri?

Pentagon Charges the Third Detainee Who Was Water-Boarded

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The Pentagon charged Abd al Rahim al Nashiri in relation to the USS Cole bombing today (and click through for links to the charging documents and more).

The Pentagon Monday announced a proposed death penalty prosecution of a Saudi man at Guantánamo, alleging he organized the October 2000 suicide bombing of the USS Cole off Aden, Yemen, that killed 17 American sailors.

The 11-page charge sheets, signed by a Marine major, accuse Abd al Rahim al Nashiri, 43, of conspiracy, murder and other law of war violations.

It seeks to try him by military commission at the U.S. Navy base in southeast Cuba, and execute him if convicted.

This one will be interesting.

As you recall, the CIA has admitted to water-boarding three detainees: Abu Zubaydah, Khalid Sheikh Mohammed, and al-Nashiri.

Abu Zubaydah remains uncharged at the moment. Perhaps they think he’s too crazy to stand trial. Perhaps, once they realized he was a glorified travel agent, they didn’t want to try him. Perhaps they simply don’t have the evidence. But for some reason, after accusing Abu Zubaydah of being a 9/11 mastermind for years, they haven’t included him in the batch of people they’re trying for 9/11.

Then there’s KSM. KSM appears ready to lead his four co-defendants straight to the gallows in hopes of becoming martyrs to the cause. And the Bush Show Trial administrators seem only too happy to go along. Thus, while KSM has already repeatedly raised the torture used on him in the one public hearing he had, it won’t make much difference so long as he continues to request to be killed.

Finally, there’s Nashiri. Though there appears to be abundant evidence tying Nashiri to the Cole bombing, the Administration hasn’t vilified (or glorified, if you’re KSM) him like they have other high value detainees. To most Americans, I’d guess, he’s a rather anonymous terrorist.

But Nashiri, unlike KSM, is fighting his charges.

In March 2007, according to a partially censored Pentagon transcript, Nashiri told U.S. military officers at Guantánamo that he concocted the confession to please his captors. ”From the time I was arrested five years ago, they have been torturing me,” he said then.

Which, for all that KSM wants and seems capable of orchestrating a collective martyrdom, means Nashiri’s trial will be particularly interesting. Given that he claims his confession was false, it’ll really expose how the Gitmo Show Trials will deal with people who claim to be being falsely Read more →