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Did Somebody Improperly Make Torture a Special Access Program?

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

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

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

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

[snip]

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

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

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All the News NYT Does Not See Fit to Print

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As I have pointed out in the last two posts, the NYT has a story up claiming that Jim Comey approved of torture, but that grossly misreads the Comey emails on which the story is based. In fact, the memos appear to show that the White House–especially Dick Cheney and David Addington–were pushing DOJ to approve the torture that had been done to Hassan Ghul, without the specificity to record what they had done to him; in fact, one of the things the push on the memos appears to have prevented, was for Comey and Philbin to have actually researched what happened to Ghul.

But the NYT instead claims that Jim Comey approved of torture legally, even while downplaying his concerns about the "combined techniques" memo that was the focus of his concerns (and not mentioning his response to the third memo).

But there is more news than that in the Comey emails–news the Grey Lady doesn’t seem to think is news. This includes:

Pressure on Pat Philbin

On April 27, 2005, Jim Comey alerted Chuck Rosenberg, his then Chief of Staff, on the fight over the torture emails because he was about to go on a trip, and he figured Pat Philbin would need cover from political pressure. He described that Philbin’s concerns about the memo were ignored. He closed the email by saying that Gonzales had visited the White House and–in spite of Comey’s request for a delay–told Philbin and Bradbury to finish the memo by Friday, April 29. Philbin objected that that was not enough time to do the "fact gathering" needed to fix the memo. Comey was basically asking Rosenberg to prepare to intercede on this process.

The following day, Comey emailed again to say that Ted Ullyot (who had just been read-in to this program) was pushing to get the memo done. It also appears that Ullyot was claiming Comey’s objections had to do with the prototypical interrogation included in the memo, and not the lack of specificity.

Alberto Gonzales’ Cowardice

Comey describes Dick Cheney putting a great deal of pressure on Alberto Gonzales to push through the memos in the last weeks of April.

The AG explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP’s request and the AG had promised they would be ready early this week. Read more →

Why Did CIA Hide Dick Cheney’s Role in Briefing?

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Thanks to the WaPo for confirming something I guessed last month. Back then, I wrote,

I’m going to make a wildarsed guess and suggest that when the CIA lists "not available" in a series of 2005 torture briefings to Republicans in Congress, they really mean "Dick Cheney attended, but we don’t want to tell you that."

Today, the WaPo reports,

Former vice president Richard B. Cheney personally oversaw at least four briefings with senior members of Congress about the controversial interrogation program, part of a secretive and forceful defense he mounted throughout 2005 in an effort to maintain support for the harsh techniques used on detainees.

[snip]

The CIA made no mention of his role in documents delivered to Capitol Hill last month that listed every lawmaker who had been briefed on "enhanced interrogation techniques" since 2002. For meetings that were overseen by Cheney, the agency told the intelligence committees that information about who oversaw those briefings was "not available."

[snip]

The CIA declined to comment on why Cheney’s presence in some meetings was left out of the records.

[snip]

Several members of Congress who took part in the Cheney meetings declined to comment on them, citing secrecy concerns.

In one of my most unsurprisingly correct wildarsed guesses ever, Cheney was working with the CIA to keep his little torture program, and neither the CIA nor the Republicans he was arm-twisting want to talk about it.

But that ought to be worth some closer attention. WTF did the CIA hide Cheney’s role in these briefings (not to mention the date of their briefing with McCain)? It reveals not only a desire to hide the degree to which these "briefings" under Porter Goss became active lobbying in support of torture, but also the degree to which the CIA is working actively, with a former Administration official (Cheney) to hide their collaboration.

The article does provide two more important details that add to the damning story.

Cheney’s briefings on interrogations began in the winter of 2005 as the top Democrats on the Senate and House intelligence committees,  Sen. John D. Rockefeller III (W.Va.) and  Rep. Jane Harman (Calif.), publicly advocated a full-scale investigation of the tactics used against top al-Qaeda suspects.

On March 8, 2005 — two days after a detailed report in the New York Times about interrogations — Cheney gathered Rockefeller, Harman and the chairmen of the intelligence panels,  Sen. Pat Roberts (R-Kan.) and  Rep. Peter Hoekstra (R-Mich.), Read more →

John Rizzo’s Nomination and the Bybee Two Memo

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On August 23, 2006, Jello Jay Rockefeller wrote to Michael Hayden requesting a number of documents in relation to John Rizzo’s nomination to be CIA’s General Counsel. In addition to a list of all OLC memos and access for the full committee to the 2004 CIA IG report on torture, Rockefeller asked for materials relating to the Bybee Two memo listing all the torture techniques CIA could use. As with the IG report, Jello Jay asked that all committee members be able to read the document (starting on page 15).

[For Bybee Two] the question is not whether it should be delivered [to the Committee], for it is here, but whether all Members of the Committee and their staff assisting them in preparing for the hearing may read it. The Senate has referred the nomination to the full Committee, not to the Chairman and Vice Chairman alone. Each Member must decide how to vote. In doing that, each should be able to ask those questions that he or she deems necessary for an informed vote. The memo was requested from OLC for the CIA by the nominee and he had responsibility for implementing it. Members may therefore wish to question him about it.

And in a section asking for more information about Rizzo’s role in buying off on torture policy (and following a completely redacted paragraph), Jello Jay asked specifically about Rizzo’s role in formulating Bybee Two.

The focus of the requests described above concerns matters relating to and following the August 2002 Second Bybee Memo. There were also important decisions about U.S. legal policies related to counterterrorism, including on such matters as the application of the Geneva Conventions, that preceded the Bybee Memos, and my understanding is that the nominee had a role in that process, both within the CIA and outside of it. It will therefore be important to assess his participation in the formulation of those policies. Accordingly, in addition to documents relating directly to the Second Bybee Memo, please provide documents authored by the nominee, or prepared under his supervision, that set forth the nominee’s contribution to the development of U.S. legal policy after the September 11 attacks.

The request is important for several reasons. First, it asks to what degree Rizzo was involved in the shredding of the Geneva Conventions, particularly repeated exemptions even from the flabby support of the GC applied to other agencies. Read more →

More on the Field Trip to Gitmo

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Just wanted to point to two tiny details from this passage about the "field trip" of the War Council (Addington, Yoo, Haynes, Gonzales, and Rizzo, plus friends) to Gitmo on September 25, 2002.

According to a trip report prepared by a Deputy Staff Judge Advocate at SOUTHCOM, MG Dunlavey held private conversations with Mr. Haynes and a few others and briefed the entire group on a number of issues including "policy constraints" affecting interrogations at the JTF. 354 For example, MG Dunlavey told the group that JTF-170 would "like to take Koran away from some detainees – hold it as incentive" but that the issue was undergoing a policy determination by SOUTHCOM.355 The trip report noted that Mr. Haynes "opined that JTF-170 should have the authority in place to make those calls, per POTUS order," adding that he "[t]hought JTF-170 would have more freedom to command. 356 MG Dunlavey told the Committee that he may have told the group during their visit that JTF-170 was working on a request for authority to use additional interrogation techniques. 357 Mr. Haynes said he did not recall discussing specific interrogation techniques or GTMO’s work on a request for authority to use additional interrogation techniques. 358

According to the Staff Judge Advocate (SJA) at GTMO, LTC Diane Beaver, there was discussion among senior staff at GTMO as to whether or not the JTF required explicit authorization to use interrogation approaches that had not been taught to interrogators at the U.S. Army Intelligence Center at Fort Huachuca, Arizona. While some felt that JTF-170 already had the authority to use additional interrogation techniques, MG Dunlavey directed his staff to draft a request for new authorities to submit to SOUTHCOM for approval.

The Discussion of the Bybee Two Memo?

First, remember that when Addington testified before the Assholes Who Torture hearing last year, he made clear when asked whether he had discussed the Bybee One memo on this Gitmo trip that it was the Bybee One memo–and not the Bybee Two memo (the one that described torture methods)–about which he was responding. That left the distinct possibility that he discussed the Bybee Two memo on the trip. 

Note this conversation with General Dunlavey then: he speaks with Haynes "and a few others," all in the context of a discussion of harsher methods to use at Gitmo.

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Conyers (et al) to Archivist: How Successful Were They at Destroying Evidence?

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I’m unsurprised that John Conyers, Howard Berman, Jerry Nadler, and Bill Delahunt have written to Hillary Clinton asking for copies of Philip Zelikow’s dissent to Steven Bradbury’s torture memo.

Despite the reported effort he describes to destroy all copies of the memorandum, Professor Zelikow nevertheless believes that "one or two [copies] are still at least in the State Department’s archives."

Of course one of the Committees was going to get this document. 

I’m a lot more interested in their letter to the acting Archivist, asking for any copies in the George W Bush archives.

While we have requested this memorandum from the State Department archives, any copies available from the George W. Bush records are also necessary to determine as completely as possible the full circulation of this important document.

That’s because if the memo isn’t there, then not only is it suggestive of criminal intent, but it also violates the Presidential Records Act. In addition to the memo itself, they ask for:

(2) Copies of any "documentary materials" as defined in the President Records Act, that are related to or reflect any effort by an official of the Bush Administration to collect, destroy, or impede the preservation or retention of this memorandum, including records of any National Security Council meetings or National Security Council Deputies meetings at which the memorandum was discussed.

As you know, the National Security Council is a component of the Executive Office of the President, and its records are in almost all cases President Records which the Act requires to be preserved. Thus, depending on the precise circulation of Professor Zelikow’s dissenting memorandum, the effort he describes to "collect and destroy all copies" of the memorandum raises serious questions of a possible violation of, or conspiracy to violate, the Act, or another breach of federal law.

(3) Copies of any "documentary materials," as defined in the Presidential Records Act, that mention or refer to the Zelikow memorandum.

[snip]

… the requested documents may shed light on the adequacy and completeness of the former Administration’s consideration of these issues over time. [my emphasis]

Well, the normally careful David Addington (if that’s who told Zelikow to destroy the memo) got himself into a pickle with this one. 

Zelikow’s Dissent and Rockefeller’s Question

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Dalybean made an important point in EPU-land of the Gestation of Bradbury’s Torture Memos thread. As I pointed out in that thread, the May 30 Bradbury memo was a response–at least in part–to Congress’ demand that the Administration assess whether their torture program complied with the Fifth, Eighth, and Fourteenth Amendments as they fulfilled the US obligation under the Convention Against Torture.

Well, that was one of the biggest points Phillip Zelikow made in his dissent to the May 30, 2005 torture memo.

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. 

Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:

  • the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA’s methods;
  • the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.
  • the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law — whatever the alleged gain. [my emphasis]

Zelikow, with a background in this area of law, wrote a dissent to the torture memo ripping its legal analysis. Significantly, Zelikow hit on one point that Congress was hitting on too: the importance of the Eighth Amendment in our compliance with the Convention Against Torture. As Zelikow apparently pointed out, the case law surrounding the Eighth Amendment said that even these detainees were entitled to protection from cruel and unusual punishment.

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Addington’s Multiple Choice Torture Memos

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When I read the transcript from the House Judiciary Committee’s Assholes Who Torture hearing after the torture memos got released, one thing became clear. Addington was hiding his involvement with the Bybee Two memo (about techniques) by answering questions only about Bybee One.

Twice during the hearing, David Addington answered a question about the  Bybee One memo (abstract authorization for torture–which had been declassified long before this hearing), but made sure to clarify in the record that his answer pertained specifically to that memo. This suggests his answers may have been dramatically different had he been asked about the Bybee Two memo (concrete techniques–the one released last month). If I’m right, it suggests that Addington discussed the Bybee Two memo on his September 25, 2002 field trip to Gitmo with John Yoo, Jim Haynes, and John Rizzo (and others). 

In the first of these exchanges, Jerry Nadler asks Addington what role he had in drafting the Bybee memo (without specifying which one he meant).

Mr. NADLER.  Mr. Addington, It has been reported in several books and in the The Washington Post that you contributed to the analysis or assisted in the drafting of the August 1, 2002 interrogation memo signed by Jay Bibey. [sic] Is this correct?

Mr. ADDINGTON. No.

Mr. NADLER. You had nothing to do with that.

Mr. ADDINGTON. No. I didn’t say I had nothing to do with it. You asked if I assisted in contribution, and let me read to you something I think will be helpful to you.

Addington filibusters for a bit, so Nadler interrupts and instructs him to tell what his role was (did I mention this was the Assholes Who Torture hearing?). 

Mr. NADLER. Wait a minute. Mr. Addington, please, we don’t need all these quotes.

Mr. ADDINGTON. Okay.

Mr. NADLER. Just tell us what your role was, if you can.

Mr. ADDINGTON. Yes, I will.

At which point Addington asks precisely which one Nadler was talking about.

Mr. NADLER. Because you said it wasn’t nonexistant but you didn’t help shape it. So what was it?

Mr. ADDINGTON. Mr. Chairman, my recollection, first of all, I would be interested in seeing the document you are questioning me about. I think you are talking about a document of August 2002.

Mr. NADLER. Yes.

Mr. ADDINGTON. It would be useful to have that in front of me so I can make sure that what I am remembering relates to the document you have and not a lot of other legal opinions I looked at. Read more →

Did Bybee Say No to Waterboarding on July 24, 2002?

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Earlier today, I showed that Jim Haynes personally pushed the SERE people to come up with some materials on waterboarding on July 25, 2002, just one day after OLC had given CIA clearance to use some–but not all–of the techniques they had asked for. The same day Haynes got that information and forward it to OLC (or had John Rizzo do it, depending on whom you ask), OLC approved the use of waterboarding.

I wish I had read this passage from this Charlie Savage story before I wrote that post.

One thing could change that dynamic, however. The Justice Department’s Office of Professional Responsibility has been investigating the work of lawyers who signed off on the interrogation policy, and is believed to have obtained archived e-mail messages from the time when the memorandums were being drafted.

If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers, then prosecutors could make a case that the officials knowingly broke the law.

This is the second time we’ve heard about emails.

Emails.

Hahahahahaha!

Imagine there were emails between–say, Addington–and Yoo, discussing what it would take to get Bybee to sign off on the torture memos? Imagine those emails were dated July 25, 2002, the same day that Haynes was pushing  JPRA to come up with some description of waterboarding that–since we did it to our own Navy men, could get past the bar of legality.

I want these guys to pay for their crimes. But I’d take special pleasure if they somehow didn’t manage to destroy all the emails. 

Unemployed Bush Lawyers and the OPR Report

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Let’s do some math.

First, the NYT reports that, like Alberto Gonzales, David Addington is also facing some career challenges. 

David S. Addington, a top aide to Vice President Dick Cheney who was a forceful voice in internal legal debates, is also said to still be looking for work.

Next, Scott Horton reports on the upcoming OPR report detailing John Yoo and Steven Bradbury’s unethical conduct in craft OLC memos to justify torture. The report, apparently, focuses on contacts between the White House and OLC.

Sources at the department who have examined [the OPR] report state that it echoes some of the harshest criticisms that have appeared in the academic literature, but the report’s real bombshell, they say, will be its detailed disclosure of Yoo’s dealings with the White House in connection with the preparation of the memos. It is widely suspected that the Yoo memos were requested as after-the-fact legal cover for draconian policies that were already in place (“CYA memos”). If the Justice Department internal probe concludes this is the case, that could have clear consequences for the current debate surrounding the Bush administration’s accountability for torture. [my emphasis]

Earlier reports had mentioned some surprise among observers that investigators had included the contents of emails, which makes me wonder whether the White House’s so-far success at eliminating emails from other periods–like September-October 2003–when they were breaking the law didn’t extend as far back as 2001 and 2002.That is, I wonder whether the surprise had as much to do with the fact that OPR managed to get emails between the White House and Yoo, as with the emails themselves.

Now, right off the bat, I can think of some dates that might make this more interesting. The warrantless wiretap program started in early October. But they were still writing new memos to authorize it (and eliminate the Fourth Amendment) for several months after the fact (though the OPR investigation into wiretapping is separate). They started torturing Abu Zubaydah before August 1, 2002, when Yoo’s first memos came out on it (I suspect the third still-classified memo may retroactively approve the earlier torture). And DOD started the torture regime before authorization for that went up the chain of command.

There are already a few memos where we know the illegal program started, only to be followed by a Yoo memo authorizing that program (there’s an August 1, 2002 one that I suspect may retroactively Read more →