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Is James Clapper’s Ignorance a Bug? Or a Feature?

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Director of National Intelligence James Clapper has been getting beat up because he got embarrassed by Diane Sawyer when he admitted he had no clue about a 12-person counterterrorism arrest in the UK earlier the day of the interview.

In an interview with ABC’s Diane Sawyer, taped Monday afternoon, Clapper was asked about the arrests, which had happened hours before and were featured on all of the network morning news broadcasts. Secretary of Homeland Security Janet Napolitano and Chief Counterterrorism Advisor John Brennan, who were also participating in the joint interview, were aware of the arrests.

“First of all, London,” Sawyer began. “How serious is it? Any implication that it was coming here? … Director Clapper?”

“London?” Clapper said after a pause, before Brennan entered the conversation explaining the arrests.

Later in the interview, Sawyer returned to the subject.

“I was a little surprised you didn’t know about London,” Sawyer told Clapper.

“Oh, I’m sorry, I didn’t,” he replied.

As a threshold matter, it would be the intelligence community’s fault as a whole if Clapper should have been, but wasn’t, briefed about this arrest (the Administration has explained that Clapper was involved in START Treaty briefings all day Monday, and so didn’t get briefed), not Clapper alone. But I’m also wondering whether there’s more to his not getting briefed.

Note, first of all, that there are two kinds of briefings Clapper might have–but apparently didn’t–get: briefing about the investigation itself, and a briefing about the arrests, either before or after they happened.

Here’s some of what we know about the investigation and raid:

  • The investigation, which has been going on for months, has been described as “intelligence-driven”
  • Authorities triggered the raid after intercepted communications revealed the plotters were preparing to act
  • Britian’s Home Secretary was told of the raids during the week of December 12 through 18
  • Lord Alex Carlile, who acts as a watchdog on UK terrorism operations, also described watching one of the operations involved in the investigation
  • The group has ties to a known (and banned) British radical Muslim group
  • Like many of the recent arrests in the US, this group is alleged to have been influenced by Anwar al-Awlaki
  • Muslim leaders in Cardiff tipped authorities off to a group of radicalized youth though MI5 seemed to already bee aware of the group; the group held a meeting two weeks ago attended by up to 30 people

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Binyam Mohamed Wins Settlement for Being Tortured

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Binyam Mohamed and a number of other detainees will be paid millions by the British government to compensate for their role in torturing him.

Around a dozen men who accused British security forces of colluding in their transfer overseas are to get millions in compensation from the UK government.

Some of the men, who are all British citizens or residents, were detained at the Guantanamo Bay prison camp in Cuba.

At least six of them alleged UK forces were complicit in their torture before they arrived at Guantanamo.

While I’m glad Mohamed has finally won some kind of recompense for his treatment here (because it appears he’ll never get it from the US, the country in charge of his detention), it likely limits any further revelations we’ll get through that court proceeding. The Brits will now proceed to have their review of torture (again, something you’ll never see in this country) in secret.

As we move forward with no accountability (aside from the British taxpayers paying a settlement in lieu of the torturers) for torture…

Were the Ramzi bin al-Shibh Tapes Altered Like the Abu Zubaydah Tapes Were?

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Given that the AP has filled in some details about the Ramzi bin al-Shibh tapes someone had hidden under a desk at CIA, I wanted to look back at the letter DOJ wrote to Leonie Brinkema in 2007, when the government first admitted it had been sitting on those tapes.

AP says the tapes were found all at once while DOJ only learned about them over a month’s time

As you recall, DOJ sent this letter on October 25, 2007, to tell Judge Leonie Brinkema (who had presided over the Zacarias Moussaoui trial) and a judge who had presided over appeals in that case that two CIA declarations DOJ had submitted–on May 9, 2003 and on November 14, 2005–“had factual errors.”

Here’s how the AP describes the tapes and their discovery:

The CIA has tapes of 9/11 plotter Ramzi Binalshibh being interrogated in a secret overseas prison. Discovered under a desk, the recordings could provide an unparalleled look at how foreign governments aided the U.S. in holding and questioning suspected terrorists.The two videotapes and one audiotape are believed to be the only remaining recordings made within the clandestine prison system.

[snip]

When the CIA destroyed its cache of 92 videos of two other al-Qaida operatives, Abu Zubaydah and Abd al-Nashiri, being waterboarded in 2005, officials believed they had wiped away all of the agency’s interrogation footage. But in 2007, a staffer discovered a box tucked under a desk in the CIA’s Counterterrorism Center and pulled out the Binalshibh tapes.

[snip]

The CIA first publicly hinted at the existence of the Binalshibh tapes in 2007 in a letter to U.S. District Judge Leonie M. Brinkema in Virginia. The government twice denied having such tapes, and recanted once they were discovered. But the government blacked out Binalshibh’s name from a public copy of the letter. [my emphasis]

The DOJ letter describes a slightly different (though not necessarily inconsistent) chronology. It claims the CIA informed DOJ first of one videotape, and then roughly a month later, of the second videotape and audiotape.

On September 13, 2007, an attorney for the CIA notified us of the discovery of a video tape of the interrogation of [1.5 lines redacted] On September 19, 2007, we viewed the video tape and a transcript [redacted] of the interview. The transcript contains no mention of Moussaoui or any details of the September 11 plot. In other words, the contents of the interrogation have no bearing on the Moussaoui prosecution. The evidence of the video tape, however, is at odds with the statements in two CIA declarations submitted in this case, as discussed in detail below.

After learning of the existence of the first video tape, we requested the CIA to perform an exhaustive review to determine whether it was in possession of any other such recordings for any of the enemy combatant witnesses at issue in this case. CIA’s review, which now appears to be complete, uncovered the existence of a second video tape, as well as a short audio tape, both of which pertained to interrogations [redacted]. On October 18, 2007, we viewed the second video tape and listened to the audio tape, while reviewing transcripts [redacted] Like the first video tape, the contents of the second video tape and the audio tape have no bearing on the Moussaoui prosecution–they neither mention Moussaoui nor discuss the September 11 plot. We attach for the Courts’ review ex parte a copy of the transcripts for the three recordings.

At our request, CIA also provided us with intelligence cables pertaining to the interviews recorded on the two video tapes. Because we reviewed these cables during our discovery review, we wanted to ensure that the cables accurately captured the substance of the interrogations. Based on our comparison of the cables to the [redacted] videotapes, and keeping in mind that the cables were prepared for the purposes of disseminating intelligence, we found that the intelligence cables accurately summarized the substance of the interrogations in question. [my emphasis]

So the AP’s sources suggested that a staffer simply pulled out a box [Christmas in September!] and found all three tapes–presumably at the same time–whereas DOJ only found out about one tape at first, then sent CIA back to see if there were more. If, as the AP suggests, the CIA found the tapes all at once, then it suggests that the CIA withheld two of the tapes from DOJ until DOJ asked for them specifically. Given that DOJ reviewed the first tape on September 19 and the second and third on October 18, there seems to have been a delay in getting those second two tapes, which might either suggest the tapes weren’t found at the same time, or CIA was very slow in turning over tapes they already knew existed.

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CIA Stores Their Torture Tape the Same Place Judy Miller Does!

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Remember how Judy Miller stored the notes showing that the Vice President’s lackey had leaked Valerie Plame’s identity to her under her desk in a shopping bag? Remember how we mocked that kind of record keeping? Well, the AP reports that the CIA uses the same archival system as Judy:

The two videotapes and one audiotape are believed to be the only remaining recordings made within the clandestine prison system.

The tapes depict Binalshibh’s interrogation sessions at a Moroccan-run facility the CIA used near Rabat in 2002, several current and former U.S. officials told The Associated Press. They spoke on the condition of anonymity because the recordings remain a closely guarded secret.

When the CIA destroyed its cache of 92 videos of two other al-Qaida operatives, Abu Zubaydah and Abd al-Nashiri, being waterboarded in 2005, officials believed they had wiped away all of the agency’s interrogation footage. But in 2007, a staffer discovered a box tucked under a desk in the CIA’s Counterterrorism Center and pulled out the Binalshibh tapes.

I look forward to learning whether this particular box of torture tapes once belonged to Jose Rodriguez, who when the tapes were discovered had just retired as head of Clandestine Services but who was head of CTC when the tapes were made, or whether someone else is a Judy Miller-style packrat.

Now, elsewhere in the AP story they make it clear that–as I have suspected–the tapes first revealed to Leonie Brinkema in 2007 were of Ramzi bin al-Shibh. That’s particularly significant because Brinkema had specifically given Zacarias Moussaoui permission to question al-Shibh in January 2003. So when the government told Brinkema they had no tapes (the AP says that since Morocco maintained control of the prison at which al-Shibh was held, CIA claimed it wasn’t “part” of the CIA program), they were denying evidence she had permitted to Moussaoui by name.

And this discovery has implications not just for Moussaoui, and for al-Shibh himself (the AP suggests the tapes may show that al-Shibh’s mental state declined very quickly after he was taken into custody; he had a pending competence assessment order in military commissions that–when al-Shibh was slotted for civilian trial–was thus negated), but also for Binyam Mohamed.

Mohamed, after all, has long claimed that the worst torture he suffered–the scalpels to his genitals–occurred while in that same Morocco prison in roughly the same time frame (though Mohamed was in Morocco longer). Mohamed made it clear the British were feeding questions to the US to ask while in Morocco (in interrogations, remember, they claim they weren’t running). Subsequently, documents showed that a member of MI5 visited Morocco while Mohamed was there. So Mohamed’s evidence refutes US claims that they–and their ally the UK–weren’t in charge of the interrogations. But at the same time, the videos may provide video evidence of the kind of treatment used in Morocco.

Now, the AP’s sources these tapes show “no harsh methods … like waterboarding.”

But current and former U.S. officials say no harsh interrogation methods, like the simulated drowning tactic called waterboarding, were used in Morocco. In the CIA’s secret network of undisclosed “black prisons,” Morocco was just way station of sorts, a place to hold detainees for a few months at a time.

“The tapes record a guy sitting in a room just answering questions,” according to a U.S. official familiar with the program.

But as I noted, al-Shibh would have been in Morocco at the same time that Mohamed was, during which time he was cut and beaten. What are the chances that the Moroccans acting as our proxy treated al-Shibh much differently than they treated Mohamed?

These tapes may well undo at least three of the lies the government told to cover up its torture and its counterterrorism mistakes. If John Durham–who the AP notes has expanded his investigation to include possible obstruction tied to these tapes–does anything with the tapes.

Update: All you timeline aficianados should check out this cool timeline/map of where Ramzi bin al-Shibh was when.

Tory-Speak on the Torture Inquiry

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I seem to be one of the biggest skeptics about the torture inquiry David Cameron announced this week. Among other things, I worry that Cameron intends to pressure plaintiffs who allege they were tortured into a mediated settlement to prevent more details of their torture from coming out. So I wanted to look at Cameron’s full statement about the inquiry for clarification.

Unfortunately, Cameron doesn’t offer any clarity on that key point: while he makes clear that the inquiry won’t start until “we’ve made enough progress,” he doesn’t specify either what “enough progress” is, or the precise role the government will play in mediating suits.

We can’t start that inquiry while criminal investigations are ongoing. And it’s not feasible to start it when there so many civil law suits that remain unresolved.So we want to do everything we can to help that process along. That’s why we are committed to mediation with those who have brought civil claims about their detention in Guantanamo. And wherever appropriate, we will offer compensation.

As soon as we’ve made enough progress, an independent Inquiry will be held.

His office’s summary is barely more specific.

The Government is committed to a mediation process with those who have brought civil claims about their detention in Guantanamo;

Though my suspicion does seem to be correct on one point: the call for mediation reflects a preference to solve these legal questions outside of the courts and therefore out of public view.

As for one of the other key questions about the inquiry, Cameron appears to say the inquiry will examine not just whether Brits ordered up torture, but also to what extent the government knowingly accepted information collected using torture–the question that Craig Murray has pushed.

It will look at whether Britain was implicated in the improper treatment of detainees held by other countries that may have occurred in the aftermath of 9/11. And if we were, what went wrong, and what do we need to do to learn the lessons.

So the inquiry will need to look at our security departments and intelligence services.

Should we have realised sooner that what foreign agencies were doing may have been unacceptable and that we shouldn’t be associated with it? Did we allow our own high standards to slip – either systemically or individually? Did we give clear enough guidance to officers in the field?

Was information flowing quickly enough from officers on the ground to the intelligence services and then on to Ministers – so we knew what was going on and what our response should be?

That said, Cameron also seems to know the answer to the last question–what the UK’s response to learning of torture should be. The answer? Whatever the Ministers say it should be.

That’s why today, we are also publishing the guidance issued to intelligence and military personnel on how to deal with detainees held by other countries. The previous Government had promised to do this, but didn’t. We are.

It makes clear that:

One – our Services must never take any action where they know or believe that torture will occur.

Two – if they become aware of abuses by other countries they should report it to the UK government so we can try to stop it.

And three – in cases where our Services believe that there may be information crucial to saving lives but where there may also be a serious risk of mistreatment, it is for Ministers – rightly – to determine the action, if any, our Services should take. [my emphasis]

That is, even while announcing this torture inquiry, Cameron is saying that that the response that the Foreign Office gave Craig Murray when he raised torture concerns–that he didn’t understand the moral trade-offs that Ministers make…

I gave Craig a copy of your revised draft telegram (attached) and took him through this. I said that he was right to raise with you and Ministers (Jack Straw) his concerns about important legal and moral issues. We took these very seriously and gave a great deal of thought to such issues ourselves. There were difficult ethical and moral issues involved and at times difficult judgements had to be made weighing one clutch of “moral issues” against another. It was not always easy for people in post (embassies) to see and appreciate the broader picture, eg piecing together intelligence material from different sources in the global fight against terrorism. But that did not mean we took their concerns any less lightly.

…is precisely the answer he wants, too. If the Prime Minister or Foreign Minister say it’s okay to look the other way while close friends torture British citizens, then it’s okay, I guess.

Particularly with that in mind, I was particularly interested in this dogwhistle Cameron included twice in his speech.

In the past, it was the intelligence services that cracked the secrets of Enigma and helped deliver victory in World War II. They recruited Russian spies like Gordievsky and Mitrokin and kept Britain safe in the Cold War. And they helped disrupt the Provisional IRA in the 1980s and 1990s.

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Is the UK Torture Inquiry an Attempt to Limit Further Disclosure?

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There’s not yet a lot of reporting about the terms of the British inquiry into its complicity with torture. But from the reports by the Beeb and the Independent, it seems the inquiry itself will not start until all pending civil and criminal complaints about torture are completed — and the government is helpfully offering to serve as mediator to speed their completion this year. From the Beeb:

The prime minister promised compensation for victims if it was found foreign agents had committed abuses with UK counterparts colluding.

Mr Cameron told MPs that to ignore the claims would risk operatives’ reputation “being tarnished”.

On-going criminal and civil cases must end before the inquiry starts, he said.

[snip]

He indicated the government was ready to provide mediation to people pursuing civil cases in relation to their detention in the US-run Guantanamo Bay detention camp.

This appears to put pressure on people like Binyam Mohamed to agree to mediation (between whom? between the US and him, mediated by David Cameron’s selected mediator?) if he wants to see a more generalized inquiry move forward. And of course, that generalized inquiry would be led by the British government’s hand-picked judge — Sir Peter Gibson — and the promises to complete access to the relevant documentation would be nothing more than promises until Mohamed agrees to settle.

Furthermore, at least in this early reporting, there’s no discussion of the terms of the inquiry: will it be limited to whether or not the UK asked people to torture, or whether — as Craig Murray has shown — the government knowingly accepted intelligence collected using torture in the name of gathering intelligence per se?

Torture and Truth

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Yesterday, I posted on a Harvard study showing that the press, after an established tradition of referring to waterboarding as torture, stopped doing so once it became clear the US engaged in the practice. Our press, in other words, refused to tell what they had previously presented as “the truth” (that is, that waterboarding was unquestionably torture) when it became politically contentious to do so.

Now I want to focus on one detail of the documents Craig Murray released yesterday in anticipation of the British inquiry into whether it was complicit with torture. The Brits are debating among themselves whether the question will be, “Did the UK order up torture?” or “Did the UK knowingly use information gathered using torture?” (Rather, the powers that be are trying hard to limit the inquiry to the former question.) So Murray posted a series of British Foreign Office communication set off when he asked both whether it was legal to receive information known to have been collected using torture, and what civil servants and Ministers thought about receiving information gathered using torture.

I would be grateful for the opinion of Sir Michael Wood on the legality in both international and UK domestic law of receiving material there are reasonable grounds to suspect was obtained under torture, and the position of both Ministers and civil servants in this regard.

That is, is it legal and is it the accepted practice of the government to accept information gathered using torture (ironically, at almost exactly the same moment, Jane Harman, having been assured that torture was legal by CIA General Counsel Scott Muller, was asking him whether it was the formal Bush policy).

The answers to those questions, as you can see by reading the thread of communication, were “yes” and “yes.” It’s the latter “yes” that the Brits don’t want to admit publicly in their inquiry.

That’s all politics. But what I’m most interested in is a paragraph Linda Duffield, the Director, Wider Europe, wrote on March 10, 2003, memorializing a meeting between her, Murray, and two others. In it, she describes explaining to Murray that she appreciated his concern about information collected using torture, but that the “moral issues” raised by it had to be weighed against other moral concerns. And the competing “moral” issue–as she lays out–is the necessity to “piec[e] together intelligence material from different sources in the global fight against terrorism.”

I said that he was right to raise with you and Ministers (Jack Straw) his concerns about important legal and moral issues. We took these very seriously and gave a great deal of thought to such issues ourselves. There were difficult ethical and moral issues involved and at times difficult judgements [sic] had to be made weighing one clutch of “moral issues” against another. It was not always easy for people in post (embassies) to see and appreciate the broader picture, eg piecing together intelligence material from different sources in the global fight against terrorism. But that did not mean we took their concerns any less lightly. [my emphasis]

Duffield is claiming to acknowledge the moral problems of torture, but suggests that the “moral” (and ethical) necessity to piece together intelligence on terrorism–not to keep the country safe, but to piece together intelligence–balances out those moral problems.

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The Brits Refuse Secret Trials Even as Obama Doubles Down

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As bmaz reported last night, the Obama Administration has refused to accept Vaughn Walker’s ruling in al-Haramain–in fairly spectacular fashion (and yes, bmaz, Mary, MadDog and others did tell me this was going to happen).

Meanwhile, across the pond, the folks from whom we got our legal system are refusing the very concept that the government could avoid its legal liability by claiming its crimes were all a secret. The British Court of Appeals refused the British government’s attempt to respond to a suit from Binyam Mohamed and other former Gitmo detainees by claiming only the government and the judge could see the evidence–effectively the stance the Obama Administration has now doubled down on.

British residents held at Guantánamo Bay could be offered millions of pounds in compensation for wrongful imprisonment and abuse after the court of appeal today dismissed an attempt by MI5 and MI6 to suppress evidence of alleged complicity in torture.

The judges ruled that the unprecedented legal move by Britain’s security and intelligence agencies – which the attorney general and senior Whitehall officials backed – to suppress evidence in a civil trial undermined the principles of common law and open justice.

[snip]

In the appeal court ruling, Lord Neuberger, master of the rolls, Lord Justice Maurice Kay and Lord Justice Sullivan said that accepting the argument of the security and intelligence agencies would amount to “undermining one of [the common law’s] most fundamental principles”. One of those principles was that “trials should be conducted in public, and the judgments should be given in public”.

The judges gave the attorney general, MI5 and MI6 28 days to appeal to the supreme court. But government officials have told the Guardian that the former detainees are now likely to be offered compensation of millions of pounds in out-of-court settlements as that would be preferable to having embarrassing evidence of the security and intelligence agencies’ complicity in abuse being exposed.

In other words, if the government refuses to share evidence of its own involvement in the torture of British residents and citizens, then they are going to have to settle with those men, rather than just dismissing the suit altogether by saying the plaintiffs can’t see the most crucial evidence in question. Had the government accepted Walker’s judgment in al-Haramain, they would have paid millions, but would have managed to keep evidence of their precious illegal wiretap program (a program both Obama and Holder have said was illegal) secret. (The Times has more, including some excellent quotes from the plaintiffs’ lawyer.)

How quaint the old country looks from this distance!

EU Parliament Rejects Interim SWIFT Deal

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The EU Parliament voted today–by big margins–to end the temporary deal allowing the US access to data from SWIFT.

The European Parliament on Thursday broadly rejected an agreement with the United States on sharing information on bank transfers that was aimed at tracking suspected terrorists through their finances.The vote in Strasbourg, France, underlined differences between the United States and the European Union over how to balance guarantees of personal privacy with concerns about national and international security.

A resolution to reject the deal passed 378-196, with 31 abstentions. The vote means that the agreement, which provisionally went into force at the beginning of February, cannot be used as planned.

The agreement would have freed the United States from having to seek bank data on a country-by-country basis. But Washington still could press for access to the data through such avenues.

Remember, this deal would have given European citizens more protections than Americans currently get from their banks (because it would have allowed them to check whether their data had been accessed).

This rejection also comes just as the Administration, following yesterday’s release of language concerning the treatment of Binyam Mohamed, is making a show of complaining about information sharing.

On Wednesday, the White House said, “We’re deeply disappointed with the court’s judgment today, because we shared this information in confidence and with certain expectations.”

Dennis Blair, U.S. director of national intelligence, condemned the release of the information.

“The protection of confidential information is essential to strong, effective security and intelligence cooperation among allies,” he said. “The decision by a United Kingdom court to release classified information provided by the United States is not helpful, and we deeply regret it.”

Obviously, particularly following the Undie Bomber attempt, the Administration is going to do anything it can to continue sharing information, both on detainees and data analysis. But it’s going to have to start playing well with others to do so.

"Cruel, Inhuman and Degrading Treatment by the United States Authorities" … BEFORE the Bybee Memo

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As Bill Egnor has reported (and Jim White mentioned here) a court in the UK has forced the government to release a passage of an earlier court ruling that it had fought to suppress. Assuming the passage has been released in complete form, the key passage concludes that the sleep deprivation that Americans subjected Binyam Mohamed to while held incommunicado in Pakistan was “at the very least cruel, inhuman and degrading treatment by the United States authorities.”

Now, this revelation is critical not just because it shows British Courts concluding that, at the very least, the United States violated the Convention Against Torture. As Jim White notes in his diary on this, the US is now obligated by the Convention Against Torture to investigate this act.

But note two details of the passage.

It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer. [my emphasis]

Mohamed was subjected to sleep deprivation, the British Government tells us, more than 75 days before the Bybee Two memo authorized such treatment.

And that abuse was inflicted by “an expert interviewer” implementing “a new strategy.”

That “expert interviewer” and that “new strategy” almost certainly were associated with Mitchell and Jessen, who were at that moment pitching using their “new strategy” with Abu Zubaydah.

So this is not just proof that the US was engaging in torture before they got their CYA memo authorizing such torture. But it was proof that they were using Mohamed, in addition to Abu Zubaydah, as guinea pigs to test out that torture.

This proves the entire myth told to explain the torture memos (and Abu Zubaydah’s treatment) to be a lie.

Updated with link to Jim White’s diary.