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Did Somebody Improperly Make Torture a Special Access Program?

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I wanted to take one last look at the Panetta declaration, this time with respect to what it says about classifying torture (also see Mary’s long comment and pmorlan’s comment on this topic).

NSC Officials Made This a Special Access Program, Not Director of CIA

Panetta tells a funny story about how (but not when) the torture program became a special access program.

Section 6.1(kk) of the Executive Order defines a "special access program" as "a program established for a special class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level." Section 4.5 of the Order specifies the U.S. Government officials who may create a special access program. This section further provides that for special access programs pertaining to intelligence activities (including special activities, but not including military operations, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of the CIA.

[snip]

Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the senstivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. As the executive agent for implementing the terrorist detention and interrogation program, the CIA is responsible for limiting access to such information in accordance with the NSC’s direction. [my emphasis]

See the funny bit? The first paragraph says the Director of the CIA "shall" "exercise" the function of creating special access programs pertaining to intelligence. But then the very next paragraph says "NSC officials established a special access program." One paragraph says the Director of CIA has to do it, but the next paragraph admits someone else did it. 

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Leon Panetta: I’ve Got to Protect the Contractors from Unwarranted Invasion of Privacy

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Well here’s a really really telling passage from Leon Panetta’s declaration on why he can’t turn over the torture documents to the ACLU.

Information concerning the names and titles of CIA personnel, and information concerning CIA organization, functions, and filing information, has also been withheld from the documents at issue based on FOIA Exemptions b(1) and b(3). Names and identifying information of CIA personnel, and CIA contractors and employees of other federal agencies involved in clandestine counterterrorism operations, also has been withheld on the basis of FOIA Exemption b(6), as the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy.1

1 As described in the attached Vaughn index, 62 of the 65 documents at issue contain names or identifying information of Agency employees or personnel involved in clandestine counterterrorism operations. [my empahsis]

And sure enough, every cable from the field includes this dual invocation of FOIA exemptions to protect the identities of those involved in torture.

Exemption b(3) … This document also contains information relating to the organization, functions, and names of persons employed by the CIA that is specifically exempted from disclosure by section 6 of the Central Intelligence Act of 1949 … and thus is protected by Exemption b(3).

[snip]

Exemption b(6) – This document also contains information relating to the identities of personnel engaged in counterterrorism operations, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The public interest in disclosure of this information does not outweigh the harm to the individual whose privacy would be violated, and thus the information is protection from disclosure by Exemption b(6).

They can’t protect James Mitchell and his crowd by invoking the CIA Act of 1949, of course, becase the guys in charge of the torture weren’t employees of the CIA. So instead, they’re invoking privacy protection that even the CIA seems to think might be dodgy.

And curiously, this is not what they have done in the past. Compare what appears in this Vaughn Index with the FOIA exemptions invoked for this set of apparently similar documents from 2004. Like a lot of cables in this series, Document 55 is a clandestine cable from Field to HQ. Read more →

Gravely Damaging Intelligence Gaps

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Just two or three more bits on this Panetta declaration and the related Vaughn Index (Part One, Part Two).

Before he insisted in his declaration, implausibly, that he wasn’t trying to hide embarrassing information that might show legal wrong-doing, Leon Panetta gave this general explanation for why he couldn’t release this information:

I want to emphasize to the Court that the operational documents currently at issue contained detailed intelligence information, to include: intelligence provided by captured terrorists; intelligence requirements that CIA prioritized at specific points in time; what the intelligence community did not know about enemies in certain time frames, i.e., intelligence gaps;

[snip]

Much information in the documents is intelligence that was being provided to the field and intelligence that was being gathered from the interrogations. This sensitive intelligence provides important insight into what the CIA knew–and did not know, i.e. intelligence gaps–at specific points in time on specific matters of intelligence interest. I have determined that the disclosure of intelligence about al Qai’da reasonably could be expected to result in exceptionally grave damage to the national security by informing our enemies of what we knew about them, and when, and in some instances, how we obtained the intelligence we possessed.

Remember, earlier this year the ACLU and CIA agreed that the Agency could exclude raw intelligence cables from this FOIA response.

In response to earlier orders, the CIA originally identified appropximately 3,000 documents potentially responsive to paragraph 3 of the Court’s April 20, 2009 Order. Those 3,000 records included "contemporaneous records," which were created at the time of the interrogations or at the time the videotapes were viewed, "intelligence records," which do not describe the interrogations but contain raw intelligence collected from the interrogations, "derivative records," which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations that, upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.

With respect to paragraph 3 of the April 20, 2009 Order, the parties jointly propose that the Government address the contemporaneous and derivative records, but not the intelligence records or the other records that ultimately proved to be unrelated to the interrogations or the videotapes. [my empahsis]

Nevertheless, even before Panetta says he can’t turn over this material because it would reveal the identities of our counterintelligence officers and the location at which we conducted these interrogations, he says he can’t turn over this material because it’ll reveal the intelligence that went into and came out of the interrogations, even though this is not the primary record of intelligence gathered in the interrogations.

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The CIA’s Cherry Pick, Two

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Update, July 21: As this post describes, the CIA explains that the timelines and outlines are derivative records, and therefore permissibly withheld from the Vaughn Index.

In my last post, I noted that the CIA’s selection of materials for the Vaughn Index (Part One, Part Two) just happened to avoid any deliberative discussions from April and May, when interrogators were reportedly getting approval for techniques on a regular basis.

In this post, I will look at what the CIA has included and excluded from the later part of its Vaughn Index–the materials in which the torture tapes and their destruction were discussed. I’ve taken the timelines I did in this post and added in what we learn from the Vaughn Index–the additions are bolded.

Once again, the CIA’s selection of materials for Hellerstein’s reviews appear very careful. While the materials include specific details on waterboarding, they appear to exclude the main investigative records surrounding both the torture and the destruction of the tapes.

The IG Report materials

One chunk of material pertains to the IG Report on interrogation eventually published in 2004. The materials in the index include:

January 9, 2003: Review of Interrogation Videotapes. A 5-page memorandum for the record written by a CIA attorney. The document contains information relating to the contents of the destroyed videotapes, pre-decisional information pertaining to policy and legal guidance, confidential communications between the attorney and CIA personnel, and attorney work-product.
February 3, 2003: Interview report
February 10, 2003: Interview report
May 9, 2003: Notes from Tape Review. A 47-page handwritten document of notes from a review of the videotapes that was written in the field with a one-page email enclosed. The notes and email include information concerning the destroyed videotapes that was incorporated into a final report.
May 22, 2003: Trip Report. A 4-page memorandum for the record written by a CIA employee. The document contains information regarding the destroyed videotapes, and recommendations and opinions of CIA employees.
June 17, 2003: Notes of CIA Attorney Discussion. A 6-page record of handwritten notes from a CIA employee discussing the interrogation videotapes with a CIA attorney. The notes include details concerning the destroyed videotapes, communications between the attorney and Agency management, and attorney work-product.
June 18, 2003: Email
June 18, 2003: Interview report

A few interesting details about these materials. Read more →

The CIA’s Cherry-Pick

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Update, July 20: As this post explains, the CIA claims that the gaps in production come from the presence of "derivative" cables that were permissibly withheld from the Vaughn Index.

In footnote 2 of his declaration, Leon Panetta explains that eight of the documents included in the Vaughn Index (Part One, Part Two) he turned over to Judge Hellerstein represent deliberative process, so can’t be turned over.

 As described in the attached Vaughn index, documents 28, 54, 56, 57, and 59-62 contain deliberative process privileged information; and documents 59 and 60 contain attorney-client communications and attorney work product.

Given the report that interrogators were cabling HQ on a daily basis for approvals for interrogation techniques, I was interested in which of the cables included in the index of all torture tape related documents the CIA previously identified would be labeled "deliberative process"–it’s a way to identify which of the cables included actual discussion about techniques. I was particularly interested in whether any of the more remarkable cables–the 28-page cable from Field to HQ written on May 6, 2002, or the 4-page cable from HQ to Field sent on May 28, 2002–were included among these deliberative documents.

Those two cables–which, I have speculated, might be key cables in the early decision-making on torture–were not included among the selection of all the documents that CIA identified "for review for potential release." In fact, the only deliberative cable included among those that Judge Hellerstein will now review is one dated August 20, 2002, long after the CIA got formal approval to use torture techniques. (In addition, the first of the two interrogation logs–the one dated April 13, 2002–is considered to include deliberative records, though the second one–dated August 4, 2002–does not.)

But I don’t think that was an accident.

The CIA was, as I understand it, ordered to give over a selection of these. Sometimes, agencies are ordered to give over every tenth document out of a total collection, but I don’t believe they were here. Sometimes, agencies will simply pull every 10th document, and explain if they deviate from that pattern. But the CIA appears to have submitted a more random selection (though, they supplied a greater percentage of the later documents talking about the torture tape destruction). By comparing the total index with the Vaughn index, though, we can get a sense of what the CIA did include. For most of the series of cables reporting to and from the field, the CIA submitted fairly regular cables–every 10, 11, or 12 cables. From June 22, 2002 through August 20, 2002, they appear to have submitted every 10 document, like clockwork (in addition to the handwritten log dated August 4). (It’s impossible to exactly identify a pattern from after that because so many of the cables are the same length, though it is possible that it sticks pretty close to the every tenth cable pattern.)

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Leon Panetta Kisses His Credibility Goodbye

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Well, that didn’t take long, for a Director of Central Intelligence to totally lose his credibility in the servitude of the institution. What has it been? Three, four months?

I’ll have more to say about Panetta’s declaration in the ACLU FOIA case tomorrow.  But for now, a little unsolicited advice for the spook-in-chief.

When you say, 

I also want to emphasize that my determinations expressed above, and in my classified declaration, are in no way driven by a desire to prevent embarrassment for the U.S. Government or the CIA, or to suppress evidence of unlawful conduct,

Yet the entire world knows–and the CIA has itself acknowledged–that the materials in question do, in fact, show evidence of unlawful conduct, and when you sort of kind of pretend that no one else knows what they all know–that the materials show evidence of unlawful conduct…

Then you look like a fool. 

A chump.

Like George Tenet, maybe, when he boasted of "slam dunk."

And then when you go on to say,

As the Court knows, some of the operational documents currently at issue contain descriptions of EITs being applied during specific overseas interrogations. These descriptions, however, are EITs as applied in actual operations, and are of qualitatively different nature than the EIT descriptions in the abstract contained in the OLC memoranda.

Then you’re just hoping we’re all bigger idiots than we really are.

Let me say this plainly. According to the CIA–the CIA itself–there’s a reason why the interrogations don’t resemble the "EIT descriptions in the abstract contained in the OLC memoranda." That’s because some cowboy probably named James Mitchell who was getting rich off of torture thought things would be more poignant–yes, the fucker actually said "poignant"–if he drowned Abu Zubaydah in gallons of water rather than sprinkling him like a daisy. There’s a reason why the descriptions of torture as it was applied is such a problem–and yes, is evidence of unlawful conduct.  And that’s because we know–we all know!!!!–that the torture began before the memos authorized it, and the torture exceeded what few guidelines John Yoo placed on it.

So don’t give me this crap about not trying to avoid embarrassment–unless you start admitting how damning this shit is. 

We know you’re trying to hide the evidence of criminal torture. Insisting, over and over, under oath, that that’s not what you’re doing isn’t convincing anyone. 

John Durham’s Torture Tape Documents

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Jason Leopold reported on and posted a late update to the ongoing torture tape FOIA exchange. If I read the latest exchange correctly, Special Prosecutor John Durham is at least preparing to identify–and potentially make available through FOIA–a number of older documents on the torture tape destruction, as well as admitting that some more recent documents on the torture tape destruction exist.

Today’s letter does two things. First, it withdraws John Durham’s objection to Judge Hellerstein’s order that:

The government shall produce documents relating to the destruction of the tapes, which describe the persons and reasons behind their destruction, from a period reasonably longer than April through December 2002. I find that the period for such production should be April 1, 2002 through June 30, 2003. If this longer period imposes an unreasonable burden, the Government should show why, and whether a reasonably shorter period would provide sufficient disclosure.

Today’s letter states:

For the reasons stated in the enclosed ex parte letter from John H. Durham provided for the Court’s in camera review, we write to advise the Court that Mr. Durham withdraws his objection to paragraph 4 of the Court’s April 20, 2009 Order.

In addition, the letter admits that the CIA has documents pertaining to the torture tape destruction,

that fall outside the date range provided in the Order; namely, April 1, 2002 through June 30, 2003. Mr. Durham may have objections to the production of documents created outside the date range specified in the Order.

This news is not surprising–it had always bugged me that the otherwise thorough Hellerstein hadn’t demanded documents for the period right up until the destruction of the torture tapes in November 2005. Now, Durham is admitting such documents exist–which we knew, because among other things, we knew that John Negroponte sent Porter Goss a memo in 2005 telling him not to destroy the tapes. But it’s nice to know that Durham is willing to go out of his way to admit that such documents exist.

If I had to guess, I’d say that Durham has finished his investigation of the earlier period–through June 30, 2003–so is now willing to produce at least a Vaughn Index of what documentation exists for the period (note, this should include the documents surrounding the Jane Harman briefing from February 5, 2003, including her letter telling the CIA not to destroy the tapes, and any paper response Scott Muller made internally at CIA). Read more →

The Torture Tape Library, Episode 51

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Last week, in an attempt to claim it didn’t have to turn over any of the 3,000 documents in its torture tape library (or, for that matter, the list of witnesses who had viewed the tapes), the CIA told Judge Alvin Hellerstein that they weren’t going to produce any of their torture tape library to the ACLU.

There is no meaningful non-exempt information from the list of documents covered by Point 2, which identifies roughly 3,000 documents, including cables, memoranda, notes and emails, that can be produced at this time. All of the information on the list of witnesses covered by Point 3 is either classified or otherwise protected by statute. Accordingly, the CIA is not producing either list to Plaintiffs in redacted form.

On Thursday, Hellerstein reviewed a chunk of those documents and that list. After reviewing them, he has ordered the CIA to start putting together an index of what they’ve got and why they’re refusing to turn it over.

On March 26, 2009, I reviewed, ex parte and in camera, representative documents and information produced by the CIA relating to the destroyed videotapes that are the subject of Plaintiffs’ motion for contempt and sanction. I ordered the Government to create a work plan for production of this material to Plaintiffs, beginning with a Vaughn index within thirty days of my in camera review and production on a rolling basis thereafter, and to file this plan by April, 2009 for my approval.

A Vaughn index is a list of all documents withheld in a FOIA case, with individualized descriptions of why those documents can’t be turned over. Presuming this Vaughn index at least identifies the dates of the documents, we’ll see how widespread discussion of the torture tapes were in 2002, when the CIA and (presumably) its contractors were torturing Abu Zubaydah, in 2003, when CIA’s OIG viewed them, in 2004, when the 9/11 Commission started asking for the torture tapes, and 2005, when Jello Jay asked about them and–later–the CIA created plausible deniability for those who had warned against destroying them and destroyed them.We might see some of the recipients.

And I’m suspecting, given Judge Hellerstein’s continued skepticism after having reviewed the documents, we might see some of the documents.

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Who Watched the Torture Tapes?

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As a number of you have pointed out, DOJ just informed the ACLU and Judge Alvin Hellerstein that CIA destroyed 92 tapes showing torture.

In the meantime, the CIA can now identify the number of videotapes that were destroyed, which is information implicated by [Hellerstein’s order that ACLU gets information responsive to its FOIA request]. Ninety-two videotapes were destroyed. 

Once McCaffrey the MilleniaLab and I go for a walk, I’m going to follow-up to see whether those 92 tapes all came from Abu Zubaydah and al-Nashiri’s torture (remember–original reports said there had been thousands of hours of videotape) or whether the torture tapes of different detainees were included.

Just as interesting (particularly in light of the goings on in the al-Haramain case), is the list of information that the ACLU will shortly be getting (the CIA wants this week to put together a schedule for turning over the information). That includes:

  • A copy of the CIA Office of Inspector General’s Special Review Report–a redacted copy of which had previously been supplied to the ACLU–with the details regarding the torture tapes un-redacted.
  • A list identifying and describing each of the destroyed records.
  • A list of any summaries or transcripts describing the destroyed records’ content.
  • Identification of any witnesses who may have viewed the videotapes or retained custody before their destruction.

Note, they are warning that they will protect CIA identities wrt that last bullet. But we may get the names of other people (I’m curious whether Cheney, David Addington, or John Yoo might be among them) who had viewed the torture tapes.

And this is perhaps the most interesting bit:

The CIA intends to produce all of the information requested to the Court and to produce as much information as possible on the public record to the plaintiffs.

Watch out below, because I think this dam may well break.