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WikiLeaks Reveals Steinmeier Intercepts, 2 Years before Helping Condi Look Unconcerned by Kidnapping Liabilities

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In its latest release on the individual intercepts the NSA collected on top German officials, WikiLeaks revealed that Foreign Minister Frank-Walter Steinmeier had been a priority 2 target in NSA’s monitoring of German political affairs.

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The actual intercept released with today’s list of targets pertains to Steinmeier’s first visit to DC as Foreign Minister in November 2005.

The intercept described how Steinmeier was pleased to have gotten a non-committal answer from Condi Rice when he asked her whether the CIA had run rendition flights through Germany.

(TS//SI//NF) New German Foreign Minister Pleased With First Official  Visit to Washington

(TS//SI//NF) Frank­-Walter Steinmeier seemed pleased on 29 November  with the results of his first visit to Washington as the new German Foreign Minister. Steinmeier described the mood during his talks with U.S. officials as very good, but feared that the most difficult part was still ahead. He seemed relieved that he had not received any  definitive response from the U.S. Secretary of State regarding press reports of CIA flights through Germany to secret prisons in eastern  Europe allegedly used for interrogating terrorism suspects. Steinmeier remarked that Washington is placing great hope in his  country’s new government. In this connection, he is looking for areas where bilateral cooperation can be strengthened and is considering  the southern Caucasus as one possible area.

This would have been of particular concern for Steinmeier as he was Chief of Staff in German’s Chancellery, in charge of intelligence. If German intelligence did know about the flights, he would be complicit. So he might be particularly happy to report that the US — that Condi Rice — was officially giving a non-answer to the question of whether or not the CIA was using Germany as a base for its kidnapping flights.

Better to officially not know.

Now, I actually am not at all troubled that NSA is wiretapping foreign officials. They’re surely doing the same to our equivalents. So while I’m interested in what these WikiLeak releases say about our NSA activities, I’m not critical of these activities.

But I am interested that Steinmeier was wiretapped for this reason.

As a State cable released by WikiLeaks back in 2010 showed, in 2007, Steinmeier and Condi met to discuss the recent arrest warrants issued by a German court. Steinmeier came out of the meeting and said publicly that Condi had told him she and the US would have no problem with the issue of arrest warrants for 13 US agents. After Steinmeier created that impression in the press, the Deputy Chief of the Mission to Germany corrected that impression, making it clear that the US had a very big problem with the planned arrest of its agents for kidnapping.

Just as the German prosecutor issued arrest warrants for 13 CIA personnel, Condi Rice and Germany’s Foreign Minister Frank-Walter Steinmeier met in DC for a discussion of Mideast peace efforts. After they met, Steinmeier told the German press that Condi had assured him that the arrest warrants wouldn’t affect German-US relations.

Steinmeier told the Welt am Sonntag newspaper that he had raised the issue with US Secretary of State Condoleezza Rice, who “assured me there would be no negative impact on German-American relations.”

Steinmeier, whose remarks were released a day ahead of publication on Sunday, said he told Rice the warrants could only be served in Germany at present, but the government expected the court to issue international warrants at some stage.

The cable describes a February 6, 2007 meeting in which the Deputy Chief of Mission of the US Embassy in Germany, John Koenig, “corrected” the impression that Steinmeier had gotten from his meeting with Condi the week before.

In a February 6 discussion with German Deputy National Security Adviser Rolf Nikel, the DCM reiterated our strong concerns about the possible issuance of international arrest warrants in the al-Masri case. The DCM noted that the reports in the German media of the discussion on the issue between the Secretary and FM Steinmeier in Washington were not accurate, in that the media reports suggest the USG was not troubled by developments in the al-Masri case. The DCM emphasized that this was not the case and that issuance of international arrest warrants would have a negative impact on our bilateral relationship. He reminded Nikel of the repercussions to U.S.-Italian bilateral relations in the wake of a similar move by Italian authorities last year.

Koenig goes on to note that the government would have political problems in the US if the Germans issued the international arrest warrants.

The DCM pointed out that the USG would likewise have a difficult time in managing domestic political implications if international arrest warrants are issued.

[snip]

[T]his was obviously a hastily called meeting in response to Steinmeier’s quotation of Condi’s assurances the warrantswouldn’t cause a problem. Note the specific language Koenig uses:

The DCM noted that the reports in the German media of the discussion on the issue between the Secretary and FM Steinmeier in Washington were not accurate, in that the media reports suggest the USG was not troubled by developments in the al-Masri case.

He’s not telling the Germans that Steinmeier was wrong, that he mis-quoted Condi. Rather, Koenig’s simply saying that the content–what Condi had said–was wrong.

While the cable makes it clear that Koenig was emphasizing the stance of the USG, it’s still not clear whether Condi just lied to Steinmeier about USG concern, using that as cover for the kidnapping that she, who was National Security Advisor during the kidnapping, would have been implicated in, or whether Steinmeier knowingly put disinformation into the press that State subordinates could correct in secret. That is, it’s not clear how knowingly Steinmeier served as a stooge in US disinformation that ultimately protected Condi.

But I do find the continuity of Steinmeier’s happiness about pretending there was no kidnapping going on in Germany to be notable. I also find it notable that Condi and her friends would have had very detailed understanding of Steinmeier’s opinions and activities from the interim period.

In Telling of Brennan Fit, Panetta Somehow Forgets the Torture Documents Stolen Back for the White House

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As you likely know, I’m firmly of the belief that one should call DC memoirs — especially those written by National Security figures — autobiographical novels, because they tend to stray so far from the truth (that’s true of all autobiographies, but in DC it seems far more motivated). Turbo-Tax Timmy Geithner is about the only DC figure whose memoir has ever been treated with any of the skepticism it deserves.

With that in mind, I wanted to look at this detail from Leon Panetta’s book, which Katherine Hawkins alerted me to.

To illustrate how Obama’s micromanagement hurt relations with Congress, Panetta describes the negotiations with Dianne Feinstein over the cables that went into the torture report.

She requested access for her staff to every operational cable regarding the program, a database that had to be in the hundreds of thousands of documents. These were among the most sensitive documents the agency had. But Feinstein’s staff had the requisite clearances and we had no basis to refuse her. Still, I wanted to have some control over this material, so I proposed a deal: Instead of turning over the documents en masse to her staff, we would set up a secure room in Virginia. Her staff could come out to the secure facility and review documents one by one, and though they could take notes, the documents themselves would stay with CIA.

When the White House found out, they went apeshit, calling Panetta into the Situation Room for a spanking.

“The president wants to know who the fuck authorized this release to the committees,” Rahm said, slamming his hand down on the table. “I have a president with his hair on fire, and I want to know what the fuck you did to fuck this up so bad.”

I’d known Rahm a long time, and I was no stranger to his language or his temper, so I knew when to worry about an outburst and when it was mostly for show. On this occasion, my hunch was that Rahm wasn’t that perturbed but that Obama probably was and that others at the table, particularly Brennan and McDonough, were too. Rahm was sticking up for them by coming after me.

[snip]

It went back and forth like this for about fifteen minutes. Brennan and I even exchanged sharp words when I, unfairly, accused him of not sticking up for the agency in the debate over the interrogation memos. Finally, the White House team realized that whether they liked it or not, there was no way we could go back on our deal with the committee. And just like that, the whole matter was dropped.

Rahm and Brennan spanked Panetta, he claims, but then the whole thing blew over.

There are just three problems with this story.

First, according to the quotations Dianne Feinstein revealed from her agreement with Panetta, the CIA wasn’t supposed to “have … control over this material.”

Per an exchange of letters in 2009, then-Vice Chairman Bond, then-Director Panetta, and I agreed in an exchange of letters that the CIA was to provide a “stand-alone computer system” with a “network drive” “segregated from CIA networks” for the committee that would only be accessed by information technology personnel at the CIA—who would “not be permitted to” “share information from the system with other [CIA] personnel, except as otherwise authorized by the committee.”

Far more significantly, Panetta doesn’t mention the documents that disappeared during Panetta’s tenure — ostensibly, on orders from the White House.

In early 2010, the CIA was continuing to provide documents, and the committee staff was gaining familiarity with the information it had already received.

In May of 2010, the committee staff noticed that [certain] documents that had been provided for the committee’s review were no longer accessible. Staff approached the CIA personnel at the offsite location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority. And then the CIA stated that the removal of the documents was ordered by the White House. When the committee approached the White House, the White House denied giving the CIA any such order.

After a series of meetings, I learned that on two occasions, CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or pages of documents that were removed in February 2010, and secondly roughly another 50 were removed in mid-May 2010.

And Panetta also doesn’t mention what may or may not be the same set of documents, those withheld by CIA on behalf of the White House, as described by Stephen Preston in response to Mark Udall.

With specific reference to documents potentially subject to a claim of executive privilege, as noted in the question, a small percentage of the total number of documents produced was set aside for further review. The Agency has deferred to the White House and has not been substantively involved in subsequent discussions about the disposition of those documents.

In other words, CIA didn’t live up to its deal with Feinstein, not with respect to this set of documents, anyway. After turning over all the cables it believed SSCI had a right to obtain, it then took some back. As far as we know, it never did provide them.

We know that one of the Torture Report’s conclusions is that the CIA lied to the White House.

While there’s good reason to believe CIA lied to Condi Rice, there’s also abundant reason to believe that Dick Cheney and David Addington knew precisely what was going on. If I had to guess, the documents CIA stole back probably make that clear.

Panetta would have us believe that, after his spanking by John Brennan and others, the whole matter was dropped. Which is a convenient tale, except that it obscures that the White House succeeded in clawing back documents CIA originally believed SSCI was entitled to.

Big-Footing Superpower Status Also about Legally Immune Commander in Chief(s)

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In a piece making the obvious comparison between fugitive spy Robert Seldon Lady and accused Espionage fugitive Edward Snowden, Tom Englehardt writes off the press silence about presumed American assistance to Lady in fleeing an international arrest warrant as the reality of being the sole superpower.

It’s no less a self-evident truth in Washington that Robert Seldon Lady must be protected from the long (Italian) arm of the law, that he is a patriot who did his duty, that it is the job of the U.S. government to keep him safe and never allow him to be prosecuted, just as it is the job of that government to protect, not prosecute>, CIA torturers who took part in George W. Bush’s Global War on Terror.

So there are two men, both of whom, Washington is convinced, must be brought in: one to face “justice,” one to escape it.  And all of this is a given, nothing that needs to be explained or justified to anyone anywhere, not even by a Constitutional law professor president.  (Of course, if someone had been accused of kidnapping and rendering an American Christian fundamentalist preacher and terror suspect off the streets of Milan to Moscow or Tehran or Beijing, it would no less self-evidently be a different matter.)

Don’t make the mistake, however, of comparing Washington’s positions on Snowden and Lady and labeling the Obama administration’s words and actions “hypocrisy.”  There’s no hypocrisy involved.  This is simply the living definition of what it means to exist in a one-superpower world for the first time in history.  For Washington, the essential rule of thumb goes something like this: we do what we want; we get to say what we want about what we do; and U.N. ambassadorial nominee Samantha Powers then gets to lecture the world on human rights and oppression.

This version of how it all works is so much the norm in Washington that few there are likely to see any contradiction at all between the Obama administration’s approaches to Snowden and Lady, nor evidently does the Washington media.

Englehardt doesn’t mention Sabrina De Sousa’s claims about the CIA’s kidnapping of Osama Mustapha Hassan Nasr (Abu Omar) and Italy’s subsequent prosecution of those involved. Adding her in the mix makes it clear how closely immunity for the Commander in Chief and his top aides is part of this superpower big-footing.

De Sousa, who says she served as an interpreter for the kidnappers on a planning trip, but not in the operation itself, was convicted and sentenced in Italy in part because the government refused to invoke diplomatic immunity (she admits she worked for CIA, but was under official cover).

The kidnapping did not meet US standards for renditions, but Station Chief Jeff Castelli wanted to do one anyway, and pushed through its approval even without Italian cooperation.

Despite concerns with the strength of Castelli’s case, CIA headquarters still agreed to move forward and seek Rice’s approval, De Sousa said. She recalled reading a cable from late 2002 that reported that Rice was worried about whether CIA personnel “would go to jail” if they were caught.

In response, she said, Castelli wrote that any CIA personnel who were caught would just be expelled from Italy “and SISMi will bail everyone out.”

Of her CIA superiors, De Sousa said, “They knew this (the rendition) was bullshit, but they were just allowing it. These guys approved it based on what Castelli was saying even though they knew it never met the threshold for rendition.”

Asked which agency officials would have been responsible for reviewing the operation and agreeing to ask Rice for Bush’s authorization, De Sousa said they would have included Tenet; Tyler Drumheller, who ran the CIA’s European operations; former CIA Director of Operations James Pavitt and his then-deputy, Stephen Kappes; Jose Rodriguez, then the head of the CIA’s Counterterrorism Center, and former acting CIA General Counsel John Rizzo.

De Sousa says the Italians and Americans colluded to protect the highers up, while prosecuting her and other lower level people.

De Sousa accused Italian leaders of colluding with the United States to shield Bush, Rice, Tenet and senior CIA aides by declining to prosecute them or even demanding that Washington publicly admit to staging the abduction.

Calling the operation unjustified and illegal, De Sousa said Italy and the United States cooperated in “scape-goating a bunch of people . . . while the ones who approved this stupid rendition are all free.”

Note, she doesn’t say this, but some of the people in the chain of command for this kidnapping — in both the US and Italy — were also involved in planting the Niger forgeries used to start the Iraq War. And, of course, a number of the Americans were involved in the torture program and its cover-up.

Since then, De Sousa has used all legal avenues to blow the whistle on this kidnapping.

De Sousa said that she has tried for years to report what she said was the baseless case for Nasr’s abduction and her shoddy treatment by the CIA and two administrations.

Her pleas and letters, however, were ignored by successive U.S. intelligence leaders, the CIA inspector general’s office, members and staff of the House and Senate intelligence committees, Rice, former Secretary of State Hillary Clinton and Attorney General Eric Holder, said De Sousa.

Assuming De Sousa’s story is correct (and an anonymous source backs its general outlines), then it adds one more reason why Lady quietly got to return to the US while Snowden will be loudly chased around the world.

What Americans are buying off on — along with superpower status that may defund schools in exchange for empire — with their silence about the disparate treatment of Sady and Snowden, then, is not just the ego thrill of living in a thus far unrivaled state.

It’s also, implicitly, the kind of immunity for the Commander in Chief and executive branch that shouldn’t exist in democratic states.

When NYT Accused Jim Comey of Approving Torture

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As you’ve likely heard already, NPR and others have reported that President Obama will nominate Jim Comey to lead the FBI.

I think Comey is a decent choice.

Much of the attention since this news broke has focused on Comey’s role in the hospital confrontation, where he threatened to resign unless the Bush Administration fixed the illegal wiretap program. That will clearly be a highlight of Comey’s confirmation discussion.

But just as much as Comey’s unsent resignation letter, I’m curious how these emails will play in his confirmation process.

They were similar Comey CYA, from the period in May 2005 when Dick Cheney was pushing Alberto Gonzales to reauthorize all the torture CIA had been doing since Jack Goldsmith had withdrawn the Bybee Two memo in 2004. While Comey did buy off on approving the waterboarding that had already been done (he unsuccessfully tried to limit it to one detainee whose treatment occurred after the Bybee Two memo was withdrawn), he also pushed hard — and failed — to get Alberto Gonzales to refuse to approve the techniques in combination, as they had reportedly always been used.

In the emails, he talks about when news of what was being approved broke (details of what freaked Comey out so much still haven’t become public), those pushing for torture would be gone. He regretted how much weaker Gonzales was than John Ashcroft, recalling that hospital bed scene.

I told him the people who were applying pressure now would not be there when the shit hit the fan. Rather they would simply say they had only asked for an opinion.

[snip]

It leaves me feeling sad for the Department and the AG.

[snip]

I just hope that when this all comes out, this institution doesn’t take the hit, but rather the hit is taken by those individuals who occupied positions at OLC and OAG and were too weak to stand up for the principles that undergird the rest of this great institution.

[snip]

People may think it strange to hear me say I miss John Ashcroft, but as intimidated as he could be by the WH, when it came to crunch-time, he stood up, even from an intensive care hospital bed. That backbone is gone.

Comey even tried to scare the torturers with warnings that the torture videos would one day become public — just six months before the torturers destroyed those videos.

There’s far more, which I laid out in this post and this post.

But what’s just as interesting as the actual content of the emails is the spin that NYT reporters Scott Shane and David Johnston gave it, presumably at the behest of the torturers who leaked it to them. They chose to ignore all the details about people like Cheney and Condi Rice pushing for more more more, immediately, and instead to focus on Comey’s assent to the memo effectively approving of the torture — including waterboarding — that had already been done.

Previously undisclosed Justice Department e-mail messages, interviews and newly declassified documents show that some of the lawyers, including James B. Comey, the deputy attorney general who argued repeatedly that the United States would regret using harsh methods, went along with a 2005 legal opinion asserting that the techniques used by the Central Intelligence Agency were lawful.

That opinion, giving the green light for the C.I.A. to use all 13 methods in interrogating terrorism suspects, including waterboarding and up to 180 hours of sleep deprivation, “was ready to go out and I concurred,” Mr. Comey wrote to a colleague in an April 27, 2005, e-mail message obtained by The New York Times.

It’s true. Comey did buy off on that memo. He did buy off on a memo approving 7.5 days of sleep deprivation and waterboarding (though not, as Cheney was pushing so hard to do, together).

During John Brennan’s confirmation hearing, Saxby Chambliss made sure to get John Brennan’s much more complacent involvement in torture into the record. He made sure to get Brennan to admit to having submitted FISA warrant applications that relied on tortured information. Those efforts, I suspect, were designed to make it a lot harder for Brennan to separate the CIA from torture going forward.

The evidence in these emails is in some ways more damning, but in most ways far, far less, than what we know of Brennan’s role in torture.

But I expect the same people who leaked these emails to NYT’s remarkably obedient reporters will try the line again.

And why not? At least one of those credulous reporters is still parroting his sources’ spin.

Praising by Damned Faintness: The NSAs, SoSs, and SoDs Who Didn’t Endorse Chuck Hagel

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Ever since this letter, in which a bunch of former Directors of Central Intelligence–but not Poppy Bush–came out against torture investigations, I’ve been more interested in who doesn’t sign these endorsement letters than who does.

For example, did you notice that Harold Koh did not vouch for John Brennan’s respect for the rule of law the other day, even though his counterpart at DOD, Jeh Johnson, did?

The same is true of this letter–signed by a bunch of former National Security Advisors and Secretaries of Defense and State in support of Chuck Hagel’s nomination to be Defense Secretary.

Here’s who did endorse:

Hon. Madeleine Albright, former Secretary of State

Hon. Samuel Berger, former National Security Advisor

Hon. Harold Brown, former Secretary of Defense

Hon. Zbigniew Brzezinski, former National Security Advisor

Hon. William Cohen, former Secretary of Defense

Hon. Robert Gates, former Secretary of Defense

Hon. James Jones, former National Security Advisor

Hon. Melvin Laird, former Secretary of Defense

Hon. Robert McFarlane, former National Security Advisor

Hon. William Perry, former Secretary of Defense

Hon. Colin Powell, former Secretary of State and National Security Advisor

Hon. George Shultz, former Secretary of State

Hon. Brent Scowcroft, former National Security Advisor

Which leaves–in addition to currently serving Tom Donilon, Leon Panetta, and Hillary Clinton–these non-endorsers:

Stephen Hadley

Condi Rice (both NSA and State)

Anthony Lake (Lake directs UNICEF right now, which may preclude such endorsements)

Frank Carlucci (both NSA and Defense Secretary) [Update: Thanks to Justin Raimundo for correcting me–while Carlucci did not sign this letter, he did sign a LTE in support of Hagel]

John Poindexter

William Clark (NSA for Reagan)

Richard Allen (NSA for Reagan)

Henry Kissinger (both NSA and State)

Donald Rumsfeld

Dick Cheney

James Schlesinger

James Baker III

Jeebus, White House, get on your game! You want people to vote for Hagel? Release the list of all the corporatist warmongers who didn’t endorse Chuck Hagel. Hagel may not be my first choice, but there is no clearer praise than the list of non-endorsers Hagel has racked up.

Remember Larry Franklin…

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I’m not a fan at all of what Larry Franklin did–leaking documents to help drum up a more hawkish policy on Iran.

But amid the news that John Kiriakou’s lawyer, Plato Cacheris, has docketed a change of plea hearing today at 11, it’s worth reviewing what happened with Franklin. After he was charged, the government put a lot of pressure on Franklin and his family (as they have with Kiriakou) and got him to plead guilty, with Cacheris’ advice. He was given a 10 year sentence.

Then the men he leaked to–Steven Rosen and Keith Weissman, with the counsel of Abbe Lowell–started questioning the very premise of the case. First, they prepared to call top officials, including Condi Rice, to demonstrate that they, too, leak classified information all the time. Then, the judge in the case, Thomas Ellis, ruled that they could not be charged for espionage if they didn’t have the intent to harm the US. It was the reverse of that ruling–Leonie Brinkema’s ruling that because Kiriakou was a government employee and therefore intent to harm the US didn’t matter–that led Kiriakou’s lawyers to rush to plead guilty.

But here’s the interesting thing.

After the government’s case against Rosen and Weissman fell apart, the judge then push to re-sentence Franklin. Ultimately, he was sentenced to 10 months of house arrest.

Now, I’m not saying that could happen with Kiriakou. According to Jesselyn Raddack, he will take the plea, and he will serve 2.5 years in prison.

And the cases are not parallel: while top Administration officials leak classified information to the press all the time, only Dick Cheney and Scooter Libby spend their time outing spies (though I still suspect Matt Bissonnette’s identity was confirmed by Pentagon sources).

But the government does continue to give its spooks fairly transparent covers, as was demonstrated when “Stan Dove Boss” got ambushed by cops tied to a drug cartel in Mexico, not to mention the entire CIA annex that militia members seemed well aware of in Benghazi. There was, certainly, the possibility that this case would have demonstrated how cavalierly the CIA had sent its kidnappers and torturers around the world with big expense account. And that, in turn, would demonstrate that the issue is not whether we–or al Qaeda–can learn the identities of the torturers, but whether citizens and journalists can speak of the torturers by name.

In any case, these cases are increasingly about whether or not the government will continue to use clearances and secrecy to set up a two-class society: those whose livelihood depends on complete obedience to the government’s asymmetric use of information, and those outside of that club who are not trusted with the truth about what our country does.

John Kiriakou’s plea deal is not only another victory in the Obama Administration’s cover-up of torture. But it’s also a win for the people who believe the citizens of this democracy are not entitled to know what is being done in their name.

Update: It’s done. Another DOJ win in protecting torturers.

Mark Thiessen: More Important to HEAR–Not Read–Daily Brief Than Actually Respond to It

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Yesterday, Mark Thieseen made a what amounts to a complaint that, half the time, President Obama reads his daily brief rather than receives it from a briefer directly. Here’s Obama’s response.

I figured, as Thiessen’s bleatings often are, it was meant to distract from the incompetence of his Bush people, but it was not yet clear what he was distracting from.

Now it is.

On April 10, 2004, the Bush White House declassified [the August 6, 2001 PDB that warned “Bin Laden determined to strike in US”]  — and only that daily brief — in response to pressure from the 9/11 Commission, which was investigating the events leading to the attack. Administration officials dismissed the document’s significance, saying that, despite the jaw-dropping headline, it was only an assessment of Al Qaeda’s history, not a warning of the impending attack. While some critics considered that claim absurd, a close reading of the brief showed that the argument had some validity.

That is, unless it was read in conjunction with the daily briefs preceding Aug. 6, the ones the Bush administration would not release. While those documents are still not public, I have read excerpts from many of them, along with other recently declassified records, and come to an inescapable conclusion: the administration’s reaction to what Mr. Bush was told in the weeks before that infamous briefing reflected significantly more negligence than has been disclosed. In other words, the Aug. 6 document, for all of the controversy it provoked, is not nearly as shocking as the briefs that came before it.

The direct warnings to Mr. Bush about the possibility of a Qaeda attack began in the spring of 2001. By May 1, the Central Intelligence Agency told the White House of a report that “a group presently in the United States” was planning a terrorist operation. Weeks later, on June 22, the daily brief reported that Qaeda strikes could be “imminent,” although intelligence suggested the time frame was flexible.

But some in the administration considered the warning to be just bluster.

All that’s not to mean Obama’s not missing similarly grave threats: threats to the financial system and to the climate.

But this op-ed–and presumably the Kurt Eichenwald book it is based on–seems to confirm that the Bush Administration very arrogantly refused to listen to the warnings they were getting in their President’s (and Vice President’s) Daily Briefings.

And because they failed to heed that warning, they responded with all-out, Constitution eroding war, and not with the policing that might have prevented 9/11 in the first place.

Judge Kollar-Kotelly Sees No Evil, Hears No Evil

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Yesterday, Colleen Kollar-Kotelly upheld the government’s right to withhold cables already released via WikiLeaks under FOIA (see my earlier posts on this FOIA here and here). Her logic seems to have a fatal flaw: she says the State Department has proven (and the ACLU has not rebutted the claim) that the US Government owns the cables.

The ACLU simply offers no rejoinder to the State Department’s affirmative showing that all the information at issue (1) was classified by an original classification authority, (2) is owned, produced, or controlled by the United States, and (3) falls within one or more of the eight relevant categories. [my emphasis]

But then she says (noting that ACLU made no mention that these cables had also been released via WikiLeaks and therefore pretending that they might be different) that the government has not officially acknowledged these cables are authentic.

No matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgement and the ACLU has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the WikiLeaks disclosure.

I guess they should let Bradley Manning go free, then, since the State Department isn’t prepared to say the cables he is accused of leaking were authentic?

But that’s not the most troubling part of this ruling. As I lay out below–and as Kollar-Kotelly presumably knows well–the cables are full of admissions of crime, including murder, torture, and kidnapping. Thus, had she reviewed them to see whether the government’s claims that they were properly classified are valid, she would have seen that–in addition to information properly classified to protect foreign relations–a lot of the original classification and the government’s refusal to officially release them (which would presumably make them admissible in a court) serve to hide confessions of criminal activity.

So Kollar-Kotelly chose not to review these cables in camera, choosing instead to rely on the State Department declaration that makes no mention of the criminal admissions included in the cables.

In this case, because the State Department’s declarations are sufficiently detailed and the Court is satisfied that no factual dispute remains, the Court declines to exercise its discretion to review the embassy cables in camera.

It was a cowardly ruling. But all the more cowardly, given that Kollar-Kotelly prevented herself from officially reviewing a bunch of evidence of criminal wrong-doing.

Here are details on the cables Kollar-Kotelly doesn’t want to read:

The famous meeting at which Ali Abdullah Saleh promised to lie about our strikes in Yemen

Kollar-Kotelly agreed to keep what has become perhaps the most famous cable ever, in which David Petraeus and Ali Abdullah Saleh discuss the missile strikes we conducted in Yemen in late 2009.

Mind you, the government likely has a very good legal reason to keep this cable secret. The cable makes it clear we were targeting Anwar al-Awlaki (as well as Nasir al-Wuhayshi) in those strikes. And releasing that would constitute official acknowledgement of the targeting of Awlaki that the government has tried so hard to avoid. Furthermore, as I’ll show in a follow-up post, it also shows that we targeted Awlaki for death before we had evidence implicating him in a crime.

Read more →

Lamar Smith’s Futile Leak Investigation

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Lamar Smtih has come up with a list of 7 national security personnel he wants to question in his own leak investigation. (h/t Kevin Gosztola)

House Judiciary Committee Chairman Lamar Smith, R-Texas, told President Obama Thursday he’d like to interview seven current and former administration officials who may know something about a spate of national security leaks.

[snip]

The administration officials include National Security Advisor Thomas Donilon, Director of National Intelligence James Clapper, former White House Chief of Staff Bill Daley, Assistant to the President for Homeland Security and Counterterrorism John Brennan, Deputy National Security Advisor Denis McDonough, Director for Counterterrorism Audrey Tomason and National Security Advisor to the Vice President Antony Blinken.

Of course the effort is sure to be futile–if Smith’s goal is to figure out who leaked to the media (though it’ll serve its purpose of creating a political shitstorm just fine)–for two reasons.

First, only Clapper serves in a role that Congress has an unquestioned authority to subpoena (and even there, I can see the Intelligence Committees getting snippy about their turf–it’s their job to provide impotent oversight over intelligence, not the Judiciary Committees).

As for members of the National Security Council (Tom Donilon, John Brennan, Denis McDonough, Audrey Tomason, and Antony Blinken) and figures, like Bill Daley, who aren’t congressionally approved? That’s a bit dicier. (Which is part of the reason it’s so dangerous to have our drone targeting done in NSC where it eludes easy congressional oversight.)

A pity Republicans made such a stink over the HJC subpoenaing Karl Rove and David Addington and backed Bush’s efforts to prevent Condi Rice from testifying, huh?

The other problem is that Smith’s list, by design, won’t reveal who leaked the stories he’s investigating. He says he wants to investigate 7 leaks.

Smith said the committee intends to focus on seven national security leaks to the media. They include information about the Iran-targeted Stuxnet and Flame virus attacks, the administration’s targeted killings of terrorism suspects and the raid which killed Usama bin Laden.

Smith wants to know how details about the operations of SEAL Team Six, which executed the bin Laden raid in Pakistan, wound up in the hands of film producers making a film for the president’s re-election. Also on the docket is the identity of the doctor who performed DNA tests which helped lead the U.S. to bin Laden’s hideout.

But his list doesn’t include everyone who is a likely or even certain leaker.

Take StuxNet and Flame. Not only has Smith forgotten about the programmers (alleged to be Israeli) who let StuxNet into the wild in the first place–once that happened, everything else was confirmation of things David Sanger and security researchers were able to come up with on their own–but he doesn’t ask to speak to the Israeli spooks demanding more credit for the virus.

Read more →

Philip Zelikow Saves Condi Rice’s Hiney (Again)

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Back in April 2009, former State Department Counselor and all-around Condi Rice fixer Philip Zelikow revealed that “in 2005,” he had written a dissent to Steven Bradbury’s 2005 Memo finding the torture program complied with the Convention against Torture, but that most copies of it had been destroyed by the Administration.

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that:  The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives.

It turns out that David Addington didn’t succeed in destroying all the copies. The National Security Archive just liberated a copy.

Now, the memo (which was actually dated February 15, 2006) reveals Zelikow’s very sane legal argument that our torture program had to comply with the 8th Amendment. But it also reveals some subtleties about the bureaucratic maneuvering around torture. Notably, that Zelikow was trying to save Condi Rice’s arse again.

To understand why, go back to this post (see also this post), explaining what Bradbury was trying to do with his 2005 CAT Memo: respond to explicit concerns raised by Congress (probably Jay Rockefeller) about whether our torture program complied with the CAT. It shows how (as documented in the narrative on the process that Rockefeller released), the Senate Intelligence Committee had forced the Bush Administration to agree to consider whether our torture program violated CAT. The Administration agreed to do so only after the National Security Council–then chaired by Condi Rice–agreed.

According to CIA records, subsequent to the meeting with the Committee Chairman and Vice Chairman in July 2004, the CIA met with the NSC Principals to discuss the CIA’s program. At the conclusion of that meeting, it was agreed that the CIA would formally request that OLC prepare a written opinion addressing whether the CIA’s proposed interrogation techniques would violate substantive constitutional standards, including those of the Fifth, Eighth and Fourteenth Amendments regardless of whether or not those standards were deemed applicable to aliens detained abroad.

DOJ stalled for 10 months. Daniel Levin, as acting head of OLC, approved more individual torture techniques. Levin wrote an unclassified memo ignoring CAT. Congress continued to pressure. The Administration laterally transferred Levin because he wasn’t writing the memos they wanted, authorizing combined techniques and waterboarding and, somehow, finding that torture program complied with CAT. Bradbury got the job to write those memos. And then, finally, 10 months after SSCI demanded that DOJ consider CAT, Bradbury wrote his memo finding that the torture program did not violate CAT’s prohibition against cruel, inhuman, or degrading treatment.

I lay out in the post the specious tricks Bradbury pulled to make that claim, and scribe laid out the legal reasons the arguments were so specious. But in specific regard to SSCI’s demand that OLC review whether the program complied with the Fifth, Eighth, and Fourteenth Amendment, Bradbury punted by saying it didn’t have to, and certainly didn’t have to comply with the Eighth.

Based on CIA assurances, we understand that the interrogations do not take place in any … areas over which the United States exercises at least de facto authority as the government. … We therefore conclude that Article 16 is inapplicable to the CIA’s interrogation practices and that those practices thus cannot violate Article 16.

[snip]

Because the high value detainees on whom the CIA might use enhanced interrogation techniques have not been convicted of any crime, the substantive requirements of the Eighth Amendment would not be relevant here, even if we assume that Article 16 has application to the CIA’s interrogation program.

After reading drafts of such bullshit, Jim Comey tried to convince Bradbury to fix it–to no avail.

Of note, however, here’s what then Attorney General Alberto Gonzales said Condi–who had become Secretary of State in the interim–had to say about the importance of complying with our treaty obligations.

The AG began by saying that Dr. Rice was not interested in discussing details and that her attitude was that if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for detailed policy discussion.

And so, with the Secretary of State dismissing treaty obligations by saying “that ended it,” torture got approved for use by the Executive Branch again.

Zelikow’s memo admits that State didn’t object to Bradbury’s memo.

The State Department agreed with the Justice Department May 2005 conclusion that [Article 16] did not apply to CIA interrogations in foreign countries.

Now, Zelikow claims that passage of the McCain amendment–which was signed on December 30, 2005–is what changed the State Department’s interpretation. Read more →