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The National Security Committee Knew They Were Going to Get FALSE Confessions from Torture

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Jason Leopold [update: and Jeff Kaye] have an important article on a key document used to develop the torture program, but I think its title should be stronger. As his article shows, Condi Rice and several high level Bush officials were briefed at a key meeting in May 2002 and in several follow-up National Security Council meetings on a number of torture techniques the CIA would eventually (and had, to some extent–I’ll have more to say about this in a follow-up) integrated into its torture program.The JPRA document used in the meeting makes it clear the the point of these techniques is to train students to resist “political exploitation” (see page 6; elsewhere the document talks about media exploitation).

As Leopold and Jeff Kaye have previously reported, “exploitation” has a specific meaning, including not just interrogation, but also recruitment as double agents and for propaganda purposes.

“The Jessen notes clearly state the totality of what was being reverse-engineered – not just ‘enhanced interrogation techniques,’ but an entire program of exploitation of prisoners using torture as a central pillar,” he said. “What I think is important to note, as an ex-SERE Resistance to Interrogation instructor, is the focus of Jessen’s instruction. It is exploitation, not specifically interrogation. And this is not a picayune issue, because if one were to ‘reverse-engineer’ a course on resistance to exploitation then what one would get is a plan to exploit prisoners, not interrogate them. The CIA/DoD torture program appears to have the same goals as the terrorist organizations or enemy governments for which SV-91 and other SERE courses were created to defend against: the full exploitation of the prisoner in his intelligence, propaganda, or other needs held by the detaining power, such as the recruitment of informers and double agents. Those aspects of the US detainee program have not generally been discussed as part of the torture story in the American press.”

As the examples of Ibn Sheikh al-Libi and Jabir al-Fayfi make clear, we used coercive methods for both of these purposes, in addition to whatever intelligence goals we had.

Thus, as Steven Kleinman notes for today’s article, Condi and others were shown what amounts to a how to manual on false confessions before they approved techniques from it for use with Abu Zubaydah and other detainees.

Air Force Col. Steven Kleinman, a career military intelligence officer recognized as one of the DOD’s most effective interrogators as well a former SERE instructor and director of intelligence for JPRA’s teaching academy, said he immediately knew the true value of the PREAL manual if employed as part of an interrogation program.

“This is the guidebook to getting false confessions, a system drawn specifically from the communist interrogation model that was used to generate propaganda rather than intelligence,” Kleinman said in an interview. “If your goal is to obtain useful and reliable information this is not the source book you should be using.”

So it’s important that we know top Bush officials got this document not just because they approved these techniques for the war on terror, but because the May meeting took place between the two dates–February 22 and July 31–when DIA expressed doubts about al-Libi’s claim, made under torture, that there were ties between al Qaeda and Iraq.

Bush’s top advisors knew what they were getting when they approved torture. And they approved them knowing they could be used to get false confessions.

The Government Continues To Classify WikiLeaks Cables to Cover Up Their Torture Cover Up

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The government has responded to ACLU’s FOIA for a bunch of WikiLeaks cables by releasing redacted versions of just 11 of the 23 cables they FOIAed (I’ve copied, ACLU’s inventory of what they got below the fold).

Some of their redactions are unsurprising–details that show officials from other governments sucking up to the US. But some of the redactions clearly serve only to “hide” details of the government’s own cover up of its torture program. For example, consider  this passage, which is part of a substantial redaction in the FOIA release.

Meanwhile, the Embassy has been involved in DOJ-led talks to have Zaragoza – who attended the April 16 press conference – lead a four-person team of GOS officials to Washington for a possible meeting with U.S. Deputy AG David Ogden or AG Eric Holder during the week of May 18. Zaragoza’s wife, who is Conde Pumpido’s chief of staff, would reportedly be one of the four.

The passage only describes internal discussions between Embassy personnel in Spain and DOJ; there’s no mention of any Spanish actions or statements.

Yet it’s tremendously damaging to the Obama Administration because it explains how discussions between the US and Spain got from this April 1, 2009 suggestion Chief Prosecutor Javier Zaragoza made (this is also redacted but could easily be claimed as one of those embarrassing exchanges with a foreign government official).

Zaragoza noted that Spain would not be able to claim jurisdiction in the case if the USG opened its own investigation, which he much preferred as the best way forward and described as “the only way out” for the USG.

To Obama’s April 16 assurances there would be no prosecutions for torture, to Eric Holder’s August 24 announcement (in the wake of the OPR Report, which was itself an investigation) of the John Durham investigation. In other words, the redacted paragraph provides key details showing that Spanish legal representatives met with DOJ as DOJ decided to launch an investigation that couldn’t seem to find a crime in years of torture evidence.

Similarly, this entire cable was withheld, including this passage which records only what the US Deputy Chief of Mission said to Germany’s Deputy National Security Adviser (so again, it doesn’t show anything embarrassing the Germans did).

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.

But, as I noted in this post, the passage appears to show Condi using her German counterpart to create the appearance that she had no concerns about German subpoenas.

Now, of course, this evidence of our government’s efforts to cover up their own torture isn’t really hidden. But so long as the government maintains that it remains classified, no one can use it–say, in a legal proceeding–to show high level obstruction of our own duty to investigate and prosecute this torture.

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Is DOJ Trying to Hide Valerie Plame at the Sterling Trial?

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While I was away in South Carolina, the government released the redacted copy of Leonie Brinkema’s order on several issues relating to the Jeffrey Sterling case (the government immediately appealed aspects of this ruling).

There are several interesting aspects of the ruling. First, Brinkema refused to let the government admit the talking points Condi Rice used to convince the NYT not to publish the Merlin story back in 2003 without Rice testifying herself. Although the ruling will probably have a negligible affect in this case, I nevertheless find it ironic, given that the government gave up prosecuting two former AIPAC employees when their defense attorney Abbe Lowell threatened to call Rice to testify about her A1 cutout habits.

Also, Brinkema is allowing the government to introduce a redacted copy of Sterling’s 2000 performance evaluation, presumably so they can argue that Sterling leaked the details about Merlin out of anger that his Equal Opportunity complaint went nowhere. I find this troubling. When that suit was litigated, the government declared state secrets over something, presumably the real performance review. Given the possibility the review referred to Merlin, it seems unfair to allow the government to use the performance review against Sterling without releasing the whole thing (if that is, in fact, what the government invoked state secrets over).

But I’m most interested in what Brinkema’s order suggests about the government’s effort to deal with CIA witnesses. The government, it appears, wants to keep the names of 10 former and current CIA employees who will testify secret from both the defense and the jury.

[T]he Court will hold in abeyance pending further briefing the Government’s request not to disclose, even under seal, to the defendant or jury the true names of these witnesses as they testify.

Brinkema’s planned approach–in addition to using screens to hide the witnesses, she plans to delay the time when potential jurors would get a list of potential witnesses–suggests these names might be publicly recognizable.

Specifically, asking potential jurors if they recognize the names of any witnesses will be delayed until a qualified pool of jurors is established and jurors stricken for cause have been excused from the courtroom. Then, as groups of jurors are considered for peremptory challenge, they will be shown an alphabetical list containing the full names of all witnesses, with no other identifying information. Any jurors recognizing a witness’s name will be stricken for cause. Because the witness list will contain the full names of many CIA employees whose identities the Government wants to protect, it will remain classified; however, a redacted list will become part of the public record.

Of course, this trial will take place in Northern Virginia; it’s quite possible that these CIA witnesses are neighbors or friends of potential jurors. And the government has a clear interest in preventing these potential jurors from learning that their neighbors are actually spooks.

But as the video above makes clear, at least one of the former CIA employees who might be called to testify, Valerie Plame, would be recognizable to a far larger group of people–those who even remotely followed the CIA Leak Case (I think Valerie would have been on maternity leave during the actual events described in Risen’s book). And this filing (see PDF 5-6)–an argument laying out Pat Lang’s proposed testimony refuting the government’s claim that the information Sterling allegedly leaked hurt the country–shows Lang read the FBI interview reports of 22 witnesses; the last name of two of those witnesses, one classified, one apparently not, starts with a “W.”

Mind you, I’m not suggesting the government doesn’t already have very good reason to want to hide the CIA affiliation of these 10 proposed witnesses–they do, which is part of the reason their case may be in trouble, since these witnesses will be used, in part, to prove Sterling’s alleged leaks were serious. Sterling has a clear right to confront his accusers, but the government wants to ensure he doesn’t even know their real names (this may be one of the things the government is appealing).

But I wanted to raise the possibility that they want to hide at least one of these identities not because the identity remains classified–Dick Cheney ruined that–but instead out of a desire to avoid confirming that Plame played a role in the Merlin operation.

Condi Claims US Was at War When She Ignored August 6, 2001 PDB

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Condi Rice is, of all Bush’s top aides, the best at managing her reputation. Which is why her interview with Fareed Zakaria yesterday is so interesting.

Sure, there are some examples of Condi’s signature lies, such as when she claims the dedicated group to hunt Osama bin Laden–which was shut down between 2005 and 2009, after which Obama reinstituted it–proves the Bush Administration’s focus on capturing OBL.

ZAKARIA: President Obama did say that he felt that the capture or killing of Bin Laden was not a top priority when he took office and he moved it to a top priority. What’s your reaction?

RICE: Oh, it was a top priority. We wanted to get Osama Bin Laden every single day. And there was a unit at the – the agency that worked on nothing else.

More interesting, though, is Condi’s confusion about how many Presidents have hunted OBL. At the beginning of her interview, she suggests that the hunt for OBL has spanned just two presidencies.

ZAKARIA: When you first heard the news about Bin Laden’s assassination, what – what did you think?

RICE: Well, I was incredibly gratified and, frankly, relieved. It been a long hunt for him. I was proud that over two presidencies we were persistent enough and patient enough to put together the picture that ultimately led to him. You don’t just stumble upon Osama Bin Laden. It takes a lot of work to get there.

But then there’s this remarkable exchange.

ZAKARIA: And you’re hearing some Republicans, people like Rush Limbaugh, say Obama really doesn’t deserve much credit for this. You know, the – the operation was a routine operation.

You’ve been in the White House. Do you think that the president at key moments had to make difficult calls whether to use a drone, whether to use a special operations?

RICE: I’ve been in the White House, and I’ve seen a president make difficult decisions. And there were difficult decisions in this. What – what President Obama has done, indeed, it was a – it was a brave decision.

Now, it is absolutely the case that the United States of America has been fighting this war for at least 10 years, and really a bit longer. And so this is a victory across presidencies. It’s a – it’s a victory for having learned more how to fight the counterterrorism fight. [my emphasis]

Now, I presume the reference to a war that pre-dates 9/11 and even May 2011 is Condi’s claim that when she was demoting Richard Clarke in the early days of 2001 and when Bush was saying “I’m tired of swatting at flies … I’m tired of playing defense. I want to play offense. I want to take the fight to the terrorists” in March 2001, that was part of an already-engaged war with al Qaeda. Her reference to the hunt for OBL across two, not three, presidencies would seem to discount Clinton’s efforts to capture or kill him.

But that would presumably also mean Condi and Bush were at war when they dismissed the urgency of the August 6, 2001 PDB, titled “Bin Laden determined to strike in US” and discussing preparations for plane hijackings.

Or maybe the reference to a longer war refers to the efforts Clinton made to neutralize OBL after OBL declared war on the US in 1996. If so, it’d sure be nice if Condi said that explicitly, given how many times the Bush Administration claimed Clinton did nothing to hunt down OBL.

Which raises the next question. I agree we’ve spent much of the last 10 years learning how to fight terrorism. Aside from obvious stupid, easily avoidable mistakes like the Iraq War and torture, there’s nothing wrong with admitting that we had to learn to do this right (though we often ignored the lessons that the UK and Israel, as well as other European countries, learned in their earlier counterterrorist fights).

But is Condi admitting that Obama has learned things that the Bush Administration didn’t know?

The MSM’s Gift to Moms? The Mushroom Cloud Brigade

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I noted this already, but it so exceeds even the abysmal standards of the Sunday show bookers, I’m going to repeat it.

To celebrate Mothers Day, the Sunday shows have brought you the Mushroom Cloud Brigade–Condi Rice, Rummy, and Dick Cheney–the three people who, on September 8, 2002 used the Sunday shows to trumpet the intelligence they had laundered through Judy Miller to lie us into war against Iraq.

RICE: You will get different estimates about precisely how close he is. We do know that he is actively pursuing a nuclear weapon. We do know that there have been shipments going into Iran, for instance — into Iraq, for instance, of aluminum tubes that really are only suited to — high-quality aluminum tools that are only really suited for nuclear weapons programs, centrifuge programs.

We know that he has the infrastructure, nuclear scientists to make a nuclear weapon. And we know that when the inspectors assessed this after the Gulf War, he was far, far closer to a crude nuclear device than anybody thought, maybe six months from a crude nuclear device.

The problem here is that there will always be some uncertainty about how quickly he can acquire nuclear weapons. But we don’t what the smoking gun to be a mushroom cloud.

Of course, the Mushroom Cloud Brigade won’t be lying about Iraq today. They’ll be lying about torture. And they’ll be helped by a slew of other torture apologists: Michael Hayden, Michael Chertoff, Rudy “9/11” Giuliani, and Liz “BabyDick” Cheney. Update: My apologies for forgetting Univision, which also hosted a torture apologist (Alberto Gonzales), today.

As they spew their torture apology, remember this. The guy who ran their torture program, Jose Rodriguez, has said the best piece of intelligence we got from torture with respect to Osama bin Laden led him to conclude that OBL was no longer the tactical leader of al Qaeda.

Al-Libbi told interrogators that the courier would carry messages from bin Laden to the outside world only every two months or so. “I realized that bin Laden was not really running his organization. You can’t run an organization and have a courier who makes the rounds every two months,” Rodriguez says. “So I became convinced then that this was a person who was just a figurehead and was not calling the shots, the tactical shots, of the organization. So that was significant.”

That led the CIA to shut down its search for OBL precisely because they believed OBL no longer headed a hierarchical organization.

Only, at least according to a background briefing at the Pentagon yesterday (which could itself be more propaganda), that conclusion was wrong. The biggest lesson our intelligence agencies have gotten from analyzing the stash of materials at OBL’s compound is that OBL was not a figurehead, he remained not just the strategic, but also the tactical head of al Qaeda.

The following is a key point:  the materials reviewed over the past several days clearly show that bin Laden remained an active leader in al Qaeda, providing strategic, operational and tactical instructions to the group.  Though separated from many al Qaeda members who are located in more remote areas of the region, he was far from a figurehead.  He was an active player making the recent operation even more essential for our nation’s security.

According to torture apologist Jose Rodriguez, the most important information we got on OBL using torture was that he was a figurehead. According to those analyzing the materials from OBL’s compound, OBL “was far from a figurehead.”

Rodriguez’ torture-induced conclusion was completely wrong.

That’s what the torture apologists have to show for themselves: they gave up the hunt for OBL because they got bad information from torture.

So whereas on September 8, 2002, the Mushroom Cloud Brigade used the Sunday shows to sell a war that would distract us from fighting al Qaeda and getting OBL, today they’ll use the Sunday shows to claim torture helped find OBL. Yet another lie from the Mushroom Cloud Brigade on the Sunday shows.

Happy Mothers Day, moms! May the breakfast in bed your kids made for you help you avoid seeing the Mushroom Cloud Brigade and torture apologists on TV.

Who Was–and Was Not–in on Rummy’s “Plan”

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Gawker has liberated Iraq some of Rummy’s papers on Iraq and Afghanistan. (h/t Rosalind) And while I hope to return to the series on John Walker Lindh (79ff) and the memo, cc’ed to the public affairs people, in which Rummy ordered Jim Haynes to write a memo saying that the way DOD was detaining people was “perfectly legal,” (75ff)

But I just wanted to make a real minor point about the memo he sent on December 13, 2003 to Dick Cheney, cc’ed to Andrew Card and Condi Rice (3):

Attached are some remarks I have been making that talk about planning for post-war Iraq.

With opponents saying we had no “plan,” it is important that we keep referring to our “plan.”

This was the Secretary of Defense sending a messaging note to the Vice President, cc’ing the Chief of Staff and National Security Advisor. It might be the kind of thing that the public affairs office would generate, not the Secretary of Defense. And it’s certainly not the kind of thing you’d normally see the VP as primary recipient of.

And of course, note who’s missing? Colin Powell. Who of course knew Rummy didn’t have a plan.

Interestingly, page 39ff makes it clear that Rummy had not received a copy of the White House propaganda piece, “A Decade of Deception and Defiance,” before he read about it in the NYT (in either a Sanger/Bumiller or a Patrick Tyler piece).

Omar Suleiman Promised the 2006 Election in Gaza Wouldn’t Take Place

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Back in 2008, David Rose had a fairly explosive article on Condi Rice and Elliot Abrams’ incompetent meddling in Gaza, which he compared to Iran-Contra. Here’s how I summarized its revelations at the time:

The story explains how the Administration pushed an election for the Palestinians, not seeing what every sane observer saw–that Hamas would win. Immediately after the election, Condi started pressuring Mahmoud Abbas to dissolve Parliament. When he refused, the Administration started backing the Fatah strongman, Mohammad Dahlan, in hopes that he could strengthen Fatah and the Palestinian Authority’s security organizations–which had been devastated by Israel during the intifada–sufficiently to overcome Hamas. This set off a civil war between Fatah and Hamas. To end the bloodshed, Saudi’s King Abdullah brokered a national unity government, without warning the US he would do so. In response to Abdullah’s unity government plan, the State Department developed its own $1.27 billion plan, what Hamas considered “a blueprint for a U.S.-backed Fatah coup.” The US handed that plan to Abbas and had him adopt it as if it were his own. Hamas responded by taking over Gaza and capturing the Egyptian weapons intended to strengthen Fatah.

Central to the whole story is how the State Department could have been so stupid as not to see that Hamas would win a democratic election in Gaza in 2006.

Elections for the Palestinian parliament, known officially as the Legislative Council, were originally set for July 2005, but later postponed by Abbas until January 2006.Dahlan says he warned his friends in the Bush administration that Fatah still wasn’t ready for elections in January. Decades of self-preservationist rule by Arafat had turned the party into a symbol of corruption and inefficiency—a perception Hamas found it easy to exploit. Splits within Fatah weakened its position further: in many places, a single Hamas candidate ran against several from Fatah.

“Everyone was against the elections,” Dahlan says. Everyone except Bush. “Bush decided, ‘I need an election. I want elections in the Palestinian Authority.’ Everyone is following him in the American administration, and everyone is nagging Abbas, telling him, ‘The president wants elections.’ Fine. For what purpose?”

The elections went forward as scheduled. On January 25, Hamas won 56 percent of the seats in the Legislative Council.

Few inside the U.S. administration had predicted the result, and there was no contingency plan to deal with it. “I’ve asked why nobody saw it coming,” Condoleezza Rice told reporters. “I don’t know anyone who wasn’t caught off guard by Hamas’s strong showing.”

“Everyone blamed everyone else,” says an official with the Department of Defense. “We sat there in the Pentagon and said, ‘Who the fuck recommended this?’”

But a Wikileaks cable released by Aftenposten may explain why State was taken by surprised.

They may have thought the election itself wouldn’t happen.

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Condi and Khalid El-Masri: Perhaps We’re Not the Ones to Teach Afghans about Rule of Law?

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I chuckled to myself when I read Steven Aftergood’s post on our efforts to instill rule of law in Afghanistan. Not that I don’t support the goal, mind you. But I question whether the United States is in a position anymore to be teaching others about rule of law. Consider this quote from the DOD status report on Afghanistan:

The latest survey of Afghan perceptions of the Afghan Government’s rule of law capacity shows an almost 7 percent decline in Afghans’ confidence in their government’s ability to deliver reliable formal justice. This is likely due to continued corruption and to the slow progress in hiring and placing justice professionals at the provincial level.

To begin with, we’re having our own problems with hiring and placing justice professionals.

But it’s things like this cable that make it really clear we shouldn’t be the ones to teach Afghans about rule of law. After the United States kidnapped Khalid el-Masri and sent him to the Salt Pit–which the US has insisted was under Afghan custody to avoid prosecuting Gul Rahman’s killers–he was tortured and ultimately dumped back in Macedonia. El-Masri tried to sue the CIA for his treatment, but that was of course dismissed using state secrets. And then in 2006-2007, as Germany tried to conduct its own investigation into el-Masri’s kidnapping, the US applied heavy pressure to get the Germans to withdraw warrants for the arrest of el-Masri’s kidnappers.

Which brings us to this cable.

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.

Now, as Scott Horton notes, one of the most interesting things about this cable is its recipient: Condi Rice.

But the most noteworthy thing about this cable is the addressee—Condoleezza Rice. Might she and her legal advisor, John Bellinger, have had an interest in the El-Masri case that went beyond their purely professional interest in U.S.-German diplomatic relations? The decision to “snatch” El-Masri and lock him up in the “salt pit” involved the extraordinary renditions program, and it seems as a matter of routine that this would have required not only the approval of the CIA’s top echelon but also the White House-based National Security Council. It’s highly likely that Rice and Bellinger would have been involved in the decision to “snatch” and imprison El-Masri. If authority was given by Rice, then responsibility for the mistake—which might well include criminal law accountability—may also rest with her, and this fact would also not have escaped Koenig as he performed his diplomatic duties.

But it’s even better than what Horton lays out, since this was obviously a hastily called meeting in response to Steinmeier’s quotation of Condi’s assurances the warrants wouldn’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.

I agree with Horton that Condi and John Bellinger may well have personal liability in el-Masri’s kidnapping and torture. But it appears, in addition, that Condi lied to her German counterpart to create the public appearance that the US had no concerns about the arrest warrants, and then sent her subordinate to correct that statement. That is, Condi used her counterpart to create the false impression that she, personally, had no concerns about the arrest warrants.

So to cover up a crime largely committed by the US in the Afghan’s own country, the Secretary of State appears to have lied to her counterpart, and then secretly corrected her lie.

But back to Aftergood’s post on what we have to teach the Afghans about rule of law. As he notes, a recent Congressional Research Service report on the topic mentioned a strategy document written under the leadership of Condi’s successor at State, “U.S. Strategy for Anti-Corruption in Afghanistan,” which is “not available publicly.” The report includes the four main pillars of this strategy. And the first of those?

Pillar 1: Tackle the pervasive culture of impunity and improve and expand access to the state justice sector, by increasing capacity and reducing corruption in the justice sector’s institutions;

So you see, Condi’s successor’s plan to teach the Afghans about Rule of Law starts with us telling them they need to “tackle the pervasive culture of impunity” (to say nothing about access to justice, on which we have our own problems as well).

I guess Condi isn’t the only Secretary of State saying one thing and then doing another.

Why Isn’t Obama Clearing Brush on PDB Day?

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Nine years ago today, George W Bush was informed that “Al Qaeda [was] determined to strike in US.”

And then he went out to clear more brush at his pig farm in Crawford.

Obama is showing no such presidential manliness in the second year of his term. Yesterday, his Justice Department actually indicted 14 of those who were materially supporting al-Shabaab, which is determined to strike at the US.

And today, in addition to getting his own PDB and Economic Daily Brief and meeting with Secretary of State Hillary Clinton, Obama will celebrate the confirmation of just the fourth woman to serve on the Supreme Court (may Elena Kagan be as much of a pleasant surprise on the Court as Sonia Sotomayor has), and will talk about the economy at a small business (though it’d be nice if he did more than talk…).

I may not love everything President Obama is doing on PDB day and every day. But at least he’s doing something more than clearing brush on a pig farm.

The Context of the July 13 Fax

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As I pointed out in an earlier post, when Counterterrorism Center lawyer Jonathan Fredman sent the torturers in Thailand a green light for torture in August 2002, he relied on language about intent from a July 13, 2002 fax from John Yoo to John Rizzo rather than the finalized August 1 Bybee Memo. In a second post on this, I also showed that both of Yoo’s nominal supervisors–Jay Bybee and John Ashcroft–claim they knew nothing about that fax. In this post, I’m going to show how that fax appears to arise out of DOJ discomfort with CIA’s torture program.

As the timeline below shows, Yoo dated (but did not send) the fax the same day that the numerous parties involved in reviewing the Bybee Memo had an apparently contentious meeting at which they discussed the draft memo as well as the CIA’s torture plan (I’m doing a big update on the Torture Timeline, so some of this is not reflected in the timeline yet).

July 10, 2002: John Yoo tells Jennifer Koester that they will present the Bybee memo to NSC at 10:45 on July 12 (and names the Bybee Memo the “bad things opinion”!).

July 11, 2002: John Yoo and Jennifer Koester have briefing session with Michael Chertoff on Bybee Memo.

July 11, 2002: An OLC paralegal cite-checks the draft, and someone schedules a July 12 meeting with Alberto Gonzales and a July 13 meeting with (effectively) NSC.

July 12, 2002: First draft of Bybee Memo distributed outside of OLC.

July 12, 2002: John Yoo meets with Alberto Gonzales (and either David Addington or Tim Flanigan) on Bybee Memo.

July 13, 2002: John Yoo and Jennifer Koester present July 12 draft to John Rizzo, John Bellinger, Michael Chertoff, Daniel Levin, and Alberto Gonzales. Rizzo provides overview of interrogation plan. Chertoff refuses to give CIA advance declination of prosecution. Levin states that FBI would not participate in any interrogation using torture techniques, nor would it participate in discussions on the subject.

July 13, 2002: Rizzo asks Yoo for letter “setting forth the elements of the torture statute.”

July 15, 2002: John Yoo faxes John Rizzo July 13 letter on the torture statute.

July 15, 2002: John Yoo sends Jennifer Koester an email telling her to include a footnote in the opinion stating that they had not been asked about affirmative defenses like necessity, self-defense, or commander-in-chief powers.

July 16, 2002: John Yoo and Jennifer Koester meet with Alberto Gonzales and (probably) David Addington and Tim Flanigan. Yoo shared the July 13 fax with them. At the meeting, it is decided that Yoo will include Commander-in-Chief and other affirmative defenses in Bybee Memo.

July 16, 2002: In response to earlier request from Michael Chertoff (perhaps as early as July 13), John Yoo has Jennifer Koester draft, but not send, a letter to CIA refusing a letter of declination of prosecution.

July 17, 2002: George Tenet meets with Condi Rice, who advised CIA could proceed with torture, subject to a determination of legality by OLC.

Of course, two things are going on in the background. First, when Ali Soufan left the black site in May because James Mitchell threatened Abu Zubaydah with mock burial, DOJ got official notice that one of its top terrorism agents believed that the CIA was using torture with Zubaydah. Yet, two months later, the torturers were almost certainly already using the most aggressive torture with Abu Zubaydah.

What seems to have happened is the following. Yoo and Koester were all set for an NSC meeting on July 12, perhaps until they had a July 11 briefing with Chertoff. In any case, something made them reschedule that NSC meeting to arrange an Alberto Gonzales (and presumably, Addington) meeting first. After which they appear to have had an incredibly contentious meeting with Bellinger, Chertoff, Levin and others. Perhaps the fact that John Rizzo presented the latest interrogation plan (which, we suspect, was already in process anyway) made things worse. We do know, for example, that mock burial remained in the plan, even after Soufan had balked when Mitchell tried to use it two months earlier. Whether because of Rizzo’s presentation or Yoo’s draft memo, at the meeting Chertoff definitively refused an advance declination and Levin announced that FBI would have nothing more to do with CIA’s torture program.

And so Rizzo, perhaps noting that the head of DOJ’s Criminal Division and the FBI Chief of Staff were reacting rather unfavorably to CIA’s torture plan, asked Yoo for some kind of cover. In response, Yoo wrote a memo raising the bar for prosecution of inflicting severe mental suffering incredibly high.

What I find particularly interesting is the 2-day delay before Yoo sent the fax, dated July 13, to Rizzo on July 15. That likely coincided with another delay; we know Chertoff asked Yoo to send Rizzo a letter refusing advance declination sometime between July 13 and July 16, but Yoo didn’t act on that request until he had sent Rizzo his July 13 fax already.

Did Yoo get both the request for the letter refusing advance declination and the request for the letter laying out the torture statute at the same contentious meeting?

And then there’s one more unexplainable coincidence. On the same day Yoo sent the July 13 memo (on July 15), Yoo instructed Koester they not only wouldn’t include any affirmative defenses in the memo, but they would claim they weren’t asked for such things. Yet that happened just a day before heading into a meeting with Gonzales and (almost certainly) Addington, at which they did decide to include such things. And incidentally–a fact I hadn’t noted before–Yoo gave Gonzales and (almost certainly) Addington a copy of his July 13 fax at the same meeting where it was decided to add affirmative defenses to the Bybee Memo.

I can’t prove it. But it appears that Yoo wrote the July 13 fax in response to serious reservations from Chertoff and Levin. And in response to that, Addington directed him to add a bunch more defenses (literal and figurative) into the Bybee Memo.

One last point. As I said, one key difference between the July 13 fax and the Bybee Memo is that Yoo rebutted an obvious objection to his reading of how the Torture Statute treated intent with severe mental suffering.

It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute.

Any bets on whether Chertoff and/or Levin made precisely this argument at that July 13 meeting?