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Dear Judge Hellerstein: Ask About the OLC Torture Documents, Too

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On Friday, Judge Alvin Hellerstein had a hearing to figure out how to end the contempt suit the ACLU brought against the CIA for destroying the torture tapes. The ACLU asked that he hold the CIA in contempt. Hellerstein said that wouldn’t serve much purpose. The ACLU suggested that he could hold individuals–presumably meaning Jose Rodriguez–in contempt. In the end, Hellerstein asked the two sides to brief him with suggestions. He seems likely, however, to do two things:

  • Require the CIA to do a report for him to explain how they’ll prevent such a thing from happening in the future
  • Meet with John Durham to hear what he learned in his investigation and make as much of that public as possible

Now, I’m all in favor of getting a very complete report very public report of how the CIA destroyed evidence of torture. The citizens of this country deserve–at the very least–an overview of the investigation and a clear explanation of the roles of the public figures like Porter Goss and John Rizzo. We deserve to know what John McPherson said about the earlier damage done to the torture tapes after John Durham immunized him–and whether Jose Rodriguez and George Tenet pressured him to lie about it. We deserve to know how this relates to all the lies CIA told Congress. We deserve to know each point when the White House got involved in this process.

But I bet you a quarter that Durham will say he can’t make any of this public, because of that mythic ongoing investigation into torture.

It’s what they do.

But as for the homework assignment Hellerstein plans on giving the CIA, to provide him with a report that will convince them they will prevent this kind of evidence disappearing in the future?

It has to go further than the torture tapes themselves.

As I cataloged last year, a great deal of evidence pertaining to torture disappeared over the years:

  • Before May 2003: 15 of 92 torture tapes erased or damaged
  • Early 2003: Gitmo commander Mike Dunlavey’s paper trail documenting the torture discussions surrounding Mohammed al-Qahtani “lost”
  • Before August 2004: John Yoo and Patrick Philbin’s torture memo emails deleted
  • June 2005: most copies of Philip Zelikow’s dissent to the May 2005 CAT memo destroyed
  • November 8-9, 2005: 92 torture tapes destroyed
  • July 2007 (probably): 10 documents from OLC SCIF disappear
  • December 19, 2007: Fire breaks out in Cheney’s office

While we have no idea what, if anything, got destroyed in Cheney’s fire, we do know that CIA, DOD, DOJ, and the State Department (along with whoever owned the server on which John Yoo sent his most classified emails about torture) all somehow “lost” evidence pertaining to torture. It’s not just CIA’s problem, it’s the entire executive branch, seemingly losing torture evidence left and right.

And at the very least, Hellerstein ought to demand the very same kind of report from DOJ as he’s asking for from CIA. I mean, has DOJ done anything to make sure the drafts that go into our secret legal opinions authorizing the executive branch to ignore the law don’t disappear, as they did here?? Has DOJ done even the presumably minimal things CIA has done to make sure such documents don’t keep disappearing when they become inconvenient or dangerous? And what about John Yoo’s emails? What has DOJ done, Judge Hellerstein should ask, to find John Yoo’s missing emails and make sure similar emails don’t go missing in the future?

It’s not just the CIA that treated Judge Hellerstein’s order with contempt. So did DOJ. And yet our Justice Department is not even being held to the very low standard that our nation’s spooks are.

The Abu Zubaydah Document

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One of the most curious documents turned over in last week’s FOIA dump is the last one, titled “The CIA Interrogation of Abu Zubaydah” (PDF 110-122). While these are just wildarsed guesses, I suspect it may either have been a summary developed for the CIA Inspector General’s office for use in its review of the torture program or a summary to prepare Stan Moskowitz, then head of CIA’s Office of Congressional Affairs, to brief the Gang of Four in early February 2003.

The Timing

This document must have been written between January 9 and January 28, 2003. On PDF 117, the document describes CIA’s Office of General Counsel completing its review of the torture tapes; that report was finalized on January 9. The same page describes the “Guidelines on Interrogation Standards,” which was ultimately signed by George Tenet on January 28, as not yet having been approved. The document makes no mention of the Inspector General’s plan to review the torture tapes impacting the decision on destroying the torture tapes, that decision was initiated in early February. It also refers to the need to brief Congress on the torture tapes in the future.

The Structure

The document includes a long Top Secret section, followed by a short summary of the document classified Secret. That suggests that the audience of this document might in turn have its own audience with which it could use the Secret summary. So, for example, if the IG were the audience, it might be permitted to use the summary description in its final report. If Gang of Four members were the audience, they might be permitted to keep the Secret summary but not to see the Top Secret report.

The Top Secret section of the document has the following sections (each section has its own classification mark, which shows in the margin, which is how we know where redacted titles appear):

  • Abu Zubaydah: Terrorist Activities
  • Injuries at Time of Capture
  • Highlights from Reporting by Abu Zubaydah
  • [Completely redacted section]
  • Interrogation Techniques Used on Abu Zubaydah
  • [Redacted title and page and a half, though this section includes discussion of videotapes and training, which suggests the section describes the management controls on the torture]
  • [Completely redacted section]

The Hand-Written Notes

Curiously, this document showed up in the January 8, 2010 Vaughn Index but not–as best as I can tell–in the November 20, 2009 Vaughn Index (or, if it showed up in the earlier Index, John Durham had not yet protected it under a law enforcement privilege). That means that the document existed as an electronic document. Yet, as the Vaughn Index tells us, this document has “handwritten marginalia” on it. These are presumably what the redactions are to the right of the main text on PDF 111 and 112. The redactions on PDF 113 are also wider than other sections, suggesting there is marginalia there, too.

In other words, the reader of this document made notes in response to the following claims (in addition to whatever appears in the long redacted section on PDF 113):

  • [AZ] was heavily involved in al Qa’ida’s operational planning, and had previously been an external liaison and logistics coordinator.
  • Abu Zubaydah was provided adequate and appropriate medical care.
  • Abu Zubaydah identified Jose Padilla and Binyam Muhammad as al-Qa’ida operatives who had plans to detonate a uranium-topped “dirty bomb” in either Washington DC, or New York City.

The first and third of these claims, of course, are somewhat dubious (though the first is more restrained than the CIA was publicly making at the time). So the reader may have been questioning these claims. And the notation next to the claim about AZ’s “adequate” medical care reminds me of the Ron Suskind report that George Bush got enraged when he learned AZ had been given pain killers. In any case, these notations suggest the reader of this document may have had a very high level of information on AZ.

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The Timeline of Torture Tape Destruction in John Durham’s Documents

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As I said the other day, most of the documents we received the other day are the 13 or so documents that CIA had cleared for FOIA release, but over which John Durham had declared a law enforcement privilege. This chart compares what we got with what had been declared in Vaughn Indices in November (this showed the hard copy documents explaining the destruction of the torture tapes) and January (this showed the electronic documents discussing the destruction of the torture tapes; there are 6 files total to this index). While this doesn’t show us everything John Durham is looking at (presumably, there are a number of documents that are too sensitive to release), looking at the documents from this perspective gives us a sense of what Durham is investigating.

As you’ll see from the chart, I have numbered the documents from 1 to 27. I just assigned them in the order the documents appear in the complete PDF file. I’ll also refer to the PDF number for each document.

The Documents Not on Durham’s List

First, assuming I matched the documents up to the Vaughn descriptions properly, there are four documents that were not on Durham’s list:

  • Document 9, January 9, 2003, Review of Interrogation Videotapes (PDF 24-28)
  • Document 11, June 18, 2003, Interview Report (PDF 33-37)
  • Document 22, December 3, 2007, Potential Statement (PDF 86-93)
  • Document 23, December 10, 2007, Trip Report (PDF 95-99)

I believe these documents all did appear elsewhere in the earlier FOIAs on this (I’m going to try to find the Vaughn descriptions later), but presumably CIA had earlier said it could not release them, which meant it was that decision, rather than Durham’s determination, that had prevented their earlier release.

Most of these documents (except the questions) pertain to the CIA Office of General Counsel review of the torture tape, and the Inspector General’s subsequent discovery that the original review had neglected to mention key details about blank tapes and discrepancies between what was portrayed in the video and what OLC authorized. Curiously, their release seems to be tied to the events reported by the WaPo, in which John McPherson, reportedly the lawyer who conducted that review, was given immunity to testify before the grand jury in the last month or so. In other words, now that McPherson has testified about this stuff, CIA has decided to release the details of his review publicly. I have included the documents in the timeline below.

Update: I’ve added in some of the dates reflected in the Vaughn Indices that I think flesh out this timeline. Those dates will not be bolded.

The Chronology on the Tapes

Many of the rest of these documents pertain to the correspondence regarding videotapes. The chronology they show is:

April 13, 2002: Interrogators start videotaping interrogations.

April 17, 2002: Two page Top Secret cable providing guidance on the retention of video tapes.

April 27, 2002: A letter directing the tapes “should all be catalogued and made into official record copies” and asking when they would “arrive here.” (Document 1; PDF 1)

May 6, 2002: Someone sends a cable providing guidance to “please do not tape over or edit videos of Abu Zubaydah’s interrogations” and “please preserve all videos.” Note, we don’t get the original copy of this, but it appears in an email forwarding the cable to Scott Muller and John Rizzo in January 2003. (Document 10; PDF )

September 5, 2002: According to October 25, 2002 cable (see below), “HQS elements discussed the disposition of the videotapes” and determined that “the continued retention of these tapes … represents a serious security risk.” (Documents 2 and 3; PDF 3-7)

September 6, 2002: Two emails: A five-page email between CIA attorneys regarding a draft of a cable discussing the disposition of the video tapes, and a one-page email between CIA attorneys on the revisions of a draft cable regarding the disposition of the video tapes.

October 25, 2002: Cable directing field to tape over tapes each day and promising someone will deploy to assist in destroying the existing tapes. (Document 2, Document 3; PDF 3-7)

October 27, 2002: Some excerpts the October 25 cable and another one (which is entirely redacted) into a one-page summary. Note that both prior cables were classified Secret, but this summary is classified Top Secret. (Document 4; PDF 9)

November 28, 2002: It appears this cable was included among those collected in Document 12 some time after the tape destruction. But what we got in FOIA cuts off the cable (and entirely redacts what is there). (PDF 39-50) Note that the November 11, 2009 Vaughn Index described document 12 as a 13 page document, but we’ve only got 12 pages.

November 30, 2003: John McPherson reviews the torture tapes. This is noted in an undated timeline of the facts surrounding the torture tape destruction. (Document 25; PDF 103-104)

December 1, 2002: A two-page email that discusses the notes of a CIA attorney.

December 3, 2002: After McPherson reviewed the videotapes on November 30, someone sent out a cable stating that it was a mistake to move the videotapes, and ordering that “no tapes will be destroyed until specific authorization is sent.” Documents 5, 6, and 7 all appear to be identical copies of this cable, save for routing information that is redacted; the routing on Document 6 is very long. (PDF 11-18)

December 3, 2002: A one-page email outlining the destruction plan for video tapes.

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Did CIA Misrepresent Interrogation Policy to Court in Passaro Case?

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I wrote in my last post on David Passaro that he knew precisely how to defend himself (go here for general background on Passaro and his case). Even before he was indicted, Passaro asked for discovery on CIA’s rules of engagement for detainee interrogations, which he tied to SERE techniques well before the connection had been made publicly.

Which is why Passaro’s requests–and CIA’s refusals–for interrogation guidelines are so interesting. While much of those early discovery requests remain redacted, on November 18, 2004 Passaro requested:

  • All memoranda from OLC on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • All memoranda from CIA’s Office of General Counsel on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • “[C]omplete contents of the rules of engagement for the CIA that address the capture, detention, and/or interrogation of the Taliban, al Qaeda, or other terrorist organizations or combatants operating in Afghanistan” including those categorized as “force protection targets”
  • “[A]ll written documents, photographs, video, and sound recordings that contain the methods employed in Afghanistan by members of CIA, DOD, or OGA for the capture, detention, and/or interrogation of members of the Taliban, al Qaeda, or other terrorist organizations, or other combatants operating in Afghanistan, including policies and guidelines developed in early 2003 for use by Special Operations forces“
  • “[A]ll orders, directives, and/or authorizations by President George W. Bush; ex-CIA Director George J. Tenet; the CIA Director of Operations; and the head of CIA’s Counterterrorist Center, Office of Military Affairs, or any other CIA component, that address the capture, detention, and/or interrogation of members of the Taliban, al Qaeda or other terrorist organizations or combatants operating in Afghanistan”
  • All information on Passaro’s training [my emphasis]

At some point (the document appears to have been sent on January 23, 2006), the government handed over the only such description it gave to Passaro’s team (see PDF 21), what they claim was a December 3, 2002 cable sent in support of operations in Afghanistan and along the Pakistan border.

When CIA officers are involved in interrogation of a detainee, the conduct of such interrogation should not encompass any significant physiological aspects (e.g., direct physical contacts, unusual mental distress, unusual physical restraints, or deliberate environmental deprivations)–beyond those reasonably required to ensure the safety and security of the detainee–without prior and specific headquarters guidance.

Now, the cable is interesting on its own right. It has not, to the best of my knowledge, appeared in any FOIA document dump or even Vaughn Declaration. Though we know that Langley sent a long cable to the Thai black site on November 30, 2002. And in the beginning of December there was cable traffic back and forth about closing that black site and destroying the torture tapes. The date certainly suggests the cable to Afghanistan might have been a response to Gul Rahman’s November 20, 2002 death at the Salt Pit, particularly with its prohibition on any “deliberate environmental deprivations.”

Note, too, the language the CIA used: “in support of ongoing CIA operations in Afghanistan and along the Pakistan border.” The reference to Pakistan sure sounds like a tacit admission that CIA was working in Pakistan already by that point.

But the really disturbing part of this document is CIA’s claim that this policy governed the interrogation of Abdul Wali in June 2003. After all,. the month after they sent this cable, George Tenet issued Guidelines to cover the CIA interrogation of detainees, guidelines that “control” over guidelines previously sent by the Directorate of Operations. That is, Tenet’s Guidelines, not the December 3, 2002 cable, would seem to have been the operative guidelines in June 2003.

And these guidelines, addition to approving, as “standard” two of the three initial techniques used with Abdul Wali (sleep and food deprivation), also describe a set of Enhanced Techniques for use with approval by Headquarters. At least three of these Enhanced Techniques–walling, abdominal slap, wall standing, and stress positions–were also, arguably, the treatment used with Wali. He was repeatedly slammed against a wall, hit in the stomach, and forced to do the “iron chair” for at least an hour at a time.

While the document, by itself, doesn’t say anything about whether or not the techniques would have been approved for use with Wali (I’ll look at that closer in a follow-up post), it does seem that the CIA deliberately refused to turn over to the defense a document that would have shown some of the treatment used with Wali was not only (with approval) acceptable, but for some techniques, “standard.”

Mind you, there are at least two ex parte filings that might include this document (or the other documents Passaro requested), one in November 2005 and one in January 2006. So the only question here is whether the government turned over the Tenet document to the Court, but not the defense.

But in any case, they certainly avoided admitting to the jury that CIA considered some of the techniques used with Wali standard.

Meet David Passaro, the Only CIA Guy Prosecuted for Detainee Abuse

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As I said in my last post, bmaz and I are about to let loose a slew of posts on David Passaro, the only CIA guy prosecuted for detainee abuse. I first decided to look into Passaro’s case given that he was prosecuted in relation to the death of an Afghan detainee, Ahmed Wali, in June 2004, whereas the CIA guy in charge of the Salt Pit was not prosecuted in relation to the death of Gul Rahman seven months earlier. Why, I wanted to know, was Passaro tried and convicted but Gul Rahman’s killer has, thus far, avoided any consequences for Rahman’s death.

As we’ll eventually see, Passaro’s lawyers tested many of the theories John Yoo laid out in his OLC memos.

Passaro was indicted in June 2004, not long after the Abu Ghraib scandal broke. He was tried and found guilty of assault in August 2006. He appealed his case to the Fourth Circuit, which last August rejected most of his appeal but remanded his case to the District Court for resentencing (his resentencing hearing was Wednesday and it’s quite likely his sentence will be lowered to the five years he has already served). Though Passaro appealed his case to the Supreme Court, they denied him cert. That means his case–and his failed effort to rely on some of Yoo’s theories–is legally binding for the Fourth Circuit, which just happens to cover both North Carolina (where JSOC is located) and Virginia (where CIA is located).

We’ll cover all those details in follow-up posts. In this one, I just wanted to introduce you to Passaro and the events he was convicted for.

Passaro is around 44 years old now (so was 37 when he served in Afghanistan). Though none of the court filings provide much detail about Passaro’s service, he is a former US Army Delta Special Forces medic, during which service he underwent SERE training. In 1990, he worked briefly as a cop in Hartford, CT, but got fired after being involved in a brawl (court filings mention one alleged and one other verified example of violent behavior on Passaro’s part). Ultimately, in 2002, he was hired as what is called a contract paramilitary specialist. He describes being trained in renditions–during which, playing the detainee, he underwent physical abuse–before heading to Afghanistan, but the government says he was not trained in interrogations. In Afghanistan, he worked with Afghan militia conducting patrols, gathering intelligence, and capturing “terrorists.”

Passaro started as a CIA contractor in December 2002. He arrived in Afghanistan around May 17, 2003, briefly worked somewhere else, then moved to Asadabad firebase in early June. By the time he moved to Asadabad, Passaro was reporting to a CIA field officer with no military experience and no prior foreign assignments who had arrived at Asadabad just a month before Passaro.

The Asadabad firebase is a 200 meter square mud fortress with 10-foot walls located 5 miles from the Pakistani border, northeast of Jalalabad, Afghanistan. By 2003, 225 people were stationed there, including members of the 82nd Airborne, Special Forces, CIA, CIA contractors, and (in a number of filings) people from an “Other Government Agency” that doesn’t appear to be the CIA. The firebase had been coming under rocket attacks that used white phosphorous starting in March 2003. Abdul Wali, whom Passaro was convicted of assaulting, was suspected of participating in those rocket attacks.

Passaro repeatedly pointed to some kind of classified information (probably intelligence from human sources) to support his claim that US forces knew Wali to be associated with the rocket attacks, and emphasized that Wali had been designated a force protection target before he was arrested; the government referred to him as a suspect who insisted on his innocence. On June 18, 2003, Wali turned himself into the the Americans through the intervention of the son of the Province’s governor, Hyder Akbar. No one did a medical intake exam of Wali when he turned himself in, though they did take a digital photo of him. There is some dispute over whose custody–DOD or CIA–he was in over the three days he was in US custody. In addition, there is some dispute about whether the head of the Special Forces team, Brian Halstead, or Passaro, ordered Wali to be sleep deprived and subjected to stress positions (they call the technique the “iron chair,” which is basically the kind of wall-sit you might do in a gym for very limited periods, though Wali was forced to maintain the position for an hour or more). It appears that three or four people, in addition to Passaro, interrogated Wali before his death, the identity of one which Passaro didn’t know. About 24 hours after he was detained, on June 19, Special Forces turned Wali over to the CIA; Passaro’s CIA supervisor asked him if “we wanted to take a crack at him.”

According to the government, when Passaro started questioning Wali, he told the guards, “his rules were different,” his “only rule was not to cause permanent injury.”

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Royce Lamberth: Let’s Make a Deal

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Royce Lamberth appears to be having a split the baby moment in the Richard Horn suit.

As you recall, back in the Clinton era, a DEA official sued the government for illegal spying on him. He alleged that State and CIA conspired to thwart his efforts to cooperate with the Burmese government on drug eradication by spying on him and using information collected to trump up reasons to get him ousted from his post. The suit had been drawing on for years, most recently through the improper invocation of state secrets. Judge Royce Lamberth went ballistic last year when he discovered the CIA and DOJ had been lying to sustain their invocation of state secrets. As predicted, in response DOJ decided to settle the suit, not least because any decision on this case was going to imperil their effort to hide behind state secret to get away with illegally wiretapping al-Haramain. Since last fall, Lamberth has been deliberating whether to let them settle the suit, and/or whether he should go on with investigations into the government’s misconduct in the suit itself.

As Josh Gerstein reports, Lamberth has proposed an implicit deal with the government: if it will treat the case as it would have under Eric Holder’s new state secrets policy, he will allow the government to settle. His proposed deal is this:

  • Al-Haramain will be permitted to submit their amicus curiae brief opposing the vacating of Lamberth’s earlier opinion in the suit, but he will allow the settlement anyway (see this post for more background on the issue)
  • Horn will get his $3 million settlement and taxpayers will, as they did with the Hatfill settlement, pay to make up for the misconduct of government officials
  • DOJ will refer the misconduct of the CIA and DOJ in this case to the Inspectors General of those agencies
  • DOJ will also alert Congress to details of the case, in particular regarding “disturbing evidence” from a sealed motion “indicating that misconduct occurred in the Inspector General’s Offices at both the State Department and the Central Intelligence Agency”

Aside from the injustice (which Lamberth is bugged about, but not bugged enough to refuse the settlement) that taxpayers have to pay because government officials engaged in misconduct, this proposition will pretty much guarantee that the government gets away with its scheme to avoid legal consequences by invoking state secrets.

Plus, there’s a tremendous level of irony here. Some of the documents over which the government had invoked state secrets were IG Reports. Yet Lamberth’s proposal to make this right is to do more IG Reports? And while the CIA Inspector Generals has turned over at least twice since the misconduct in question, Lamberth is literally proposing that having CIA’s Inspector General investigate wrongdoing by CIA’s Inspector General will somehow make this right.

Update: I’ve been informed that there is a practice of having other IGs investigate when an agency’s IG is accused of misconduct.

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?

Jane Mayer to Marc Thiessen: Your Guys’ Ignorance Got Us Attacked

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Jane Mayer has a great general purpose slapdown of torture apologist Marc Thiessen love letter to torture. She hits on most of the weaknesses of Thiessen’s arguments: his false claims about what prevented the 2006 liquid explosive plane plot, apologists’ very selective examination of what counts as an attack on American, the silence about Ibn Sheik al-Libi’s (and others’) false confessions, demonstrably false claims that no one at Gitmo was ever tortured.

But there’s a point she makes that really ought to be the focus of push back against all torture apologists: the Bush Administration ignored repeated warnings about the imminent al Qaeda attack in 2001, and any ignorance about al Qaeda–which Thiessen claims was general–belongs to Bush’s top leaders, not the intelligence community.

Thiessen, citing [Michael] McConnell, claims that before the C.I.A. began interrogating detainees the U.S. knew “virtually nothing” about Al Qaeda. But McConnell was not in the government in the years immediately before 9/11. He retired as the director of the National Security Agency in 1996, and did not rejoin the government until 2007. Evidently, he missed a few developments during his time in the private sector, such as the C.I.A.’s founding, in 1996, of its bin Laden unit—the only unit devoted to a single figure. There was also bin Laden’s declaration of war on America, in 1996, and his 1998 indictment in New York, after Al Qaeda’s bombing of two U.S. embassies in East Africa. The subsequent federal trial of the bombing suspects, in New York, produced thousands of pages of documents exposing the internal workings of Al Qaeda. A state’s witness at the trial, a former Al Qaeda member named Jamal al-Fadl, supplied the F.B.I. with invaluable information about the group, including its attempts to obtain nuclear weapons. (Fadl did so without any coercion other than the hope of a future plea bargain. Indeed, the F.B.I., without using violence, has persuaded dozens of other suspected terrorists to coöperate, including, most recently, the Christmas Day bomber.)

In order to make the case that America was blind to the threat of Al Qaeda in the days before 9/11, Thiessen skips over the scandalous amount of intelligence that reached the Bush White House before the attacks. In February, 2001, the C.I.A.’s director, George Tenet, called Al Qaeda “the most immediate and serious threat” to the country. Richard Clarke, then the country’s counterterrorism chief, tried without success to get Condoleezza Rice, Bush’s national-security adviser, to hold a Cabinet-level meeting on Al Qaeda. Thomas Pickard, then the F.B.I.’s acting director, has testified that Attorney General John Ashcroft told him that he wanted to hear no more about Al Qaeda. On August 6, 2001, Bush did nothing in response to a briefing entitled “Bin Laden Determined to Strike in the U.S.” As Tenet later put it, “The system was blinking red.”

(I would add that refusal of Thiessen’s precious CIA to share information about Nawaf al-Hazmi and Khalid al-Mihdhar also prevented us from acting on the biggest lead that could have prevented the attack.)

This point is not repeated enough, perhaps out of some sense of comity toward a guy, Cheney, who has spent the last year (really, his entire life) breaking every rule of comity in DC.

Out of ignorance of al Qaeda, arrogance that only loyal insiders should participate in setting security priorities, and plain old bad judgment about the potential threat of terrorists, the Bush Administration failed to act on clear warnings that we would be hit on 9/11. Those are, not surprisingly, precisely the same characteristics drove us to ignore our experts on interrogation and instead follow the word of a bunch of hucksters who wanted to get rich off of torturing other human beings.

Every time someone like Thiessen attempts to push his propaganda, we really ought to be asking why we should trust the propagandist of the guys who are still trying to overcompensate for having failed in the first place.

The Request for Reaffirmation of Torture

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This is going to be another weedy post…

I wanted to put two totally bureaucratic pages (PDF 23-24) from the recent FOIA dump into the context of the other known documents in the chronology. The first page is an “Executive Correspondence Routing Sheet,” sent from CIA General Counsel Scott Muller around top CIA management for approval. It reads:

This memo follows General Counsel discussion with the DCI and agreement on the need to seek reaffirmation from the NSC.

And the memo in question (the following page) appears to be a very short memo with the subject, “Review of CIA Interrogation Program,” from John Rizzo circulated to the lawyers involved with the torture program and the top CIA executives on the Executive Correspondence Routing Sheet. The Rizzo memo is dated May 24, 2004; the last signature–that of George Tenet–is dated June 4, 2004.

The routing sheet is interesting not just because Tenet signed it the day after he resigned.

It also shows a glimpse of the bridge by which CIA responded to the CIA IG Report but also (probably) Jack Goldsmith’s unwillingness to reaffirm opinions that OLC had never made by asking the White House for some kind of written re-endorsement of the torture program.

As I’ve shown here and here, when the CIA Inspector General began its review of the torture program in response to the Salt Pit death and abuses of al-Nashiri, CIA and Jennifer Koester and John Yoo (though he denies involvement) worked back channel to develop a set of “Legal Principles” (elsewhere called “Bullet Points”) that would expand the legal authorization DOJ had given CIA’s torture program in such a way as to legally excuse the crimes the IG was inspecting. Significantly, the Legal Principles document expanded the already farcical analysis of Article 16 of the Convention Against Torture that Yoo had done in the Bybee One memo.

CIA twice tried to present these Legal Principles to OLC as a fait accompli, first in June 2003, when Patrick Philbin took over many of John Yoo’s duties, and then again in March 2004, in conjunction with the finalization of the IG Report and at a time when Goldsmith headed the OLC. Both Philbin and Goldsmith refused to accept the Legal Principles as OLC sanctioned documents.

Now, significantly, the March 2, 2004 set of Legal Principles was itself a request for “reaffirmation” of the torture program’s legality. Scott Muller emphasized CIA needed that reauthorization, among other reasons, because they had incorporated new torture techniques based on the OLC “guidance.”

For example, using the applicable law and relying on OLC’s guidance, we concluded that the abdominal slap previously discussed with OLC (and mentioned in the June 2003 summary points) is a permissible interrogation technique.

Of note, Goldsmith appears to have taken special note of the description of water PFT, which (Muller’s note said explicitly) was “intended to … humiliate” detainees. Given that the IG Report concluded that the torture program probably violated Article 16, this language seemed to flout the prohibitions against cruel, inhuman, and degrading treatment.

Between March 2 and May 24 (when Rizzo wrote his memo), Goldsmith did not reauthorize the Legal Principles. Nevertheless, CIA incorporated the Legal Principles into the final draft of the IG Report. Goldsmith got a copy of that document some time before May 25 and presumably spoke to Muller about the inclusion of the Legal Principles in it, because on that day, he wrote CIA’s IG noting that he had received it and asking for time to review the depiction of OLC’s legal advice in the IG Report before it got sent to Congress.

In other words, Goldsmith’s continued objection to the inclusion of the Legal Principles in the IG Report is probably what prompted John Rizzo to send out a memo referencing the IG Report (which the CIA called the “Review of the CIA Interrogation Program,” the subject of his memo) that appears to have recommended asking NSC for reaffirmation of the torture program.

So faced with Goldsmith’s refusal to reaffirm something OLC had never affirmed in the first place, CIA decided to go to the White House and get them to approve of the program in writing. Read more →

Did Addington Oppose 9/11 Commission Questions to Avoid Independent Evaluation of Torture Program?

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Shortly after news broke that CIA destroyed the torture tapes, the 9/11 Commission issued a letter complaining that they had not been told of–much less been allowed to review–the torture tapes.

The commission’s mandate was sweeping and it explicitly included the intelligence agencies. But the recent revelations that the C.I.A. destroyed videotaped interrogations of Qaeda operatives leads us to conclude that the agency failed to respond to our lawful requests for information about the 9/11 plot. Those who knew about those videotapes — and did not tell us about them — obstructed our investigation.

They released a memo from Philip Zelikow describing how the Administration refused to allow the 9/11 Commission direct access to detainees in early 2004.

The full Commission considered this issue in a meeting on January 5, 2004 and decided the CIA responses were insufficient. It directed the staff to prepare a letter to administration officials that would make the dispute public. There were then discussions between Hamilton and White House counsel Alberto Gonzales and several meetings of CIA lawyers with Commission staff. The Commission offered various compromises to avoid disrupting the interrogation process, including direction or observation of questioning in real-time using one-way glass, adjoining rooms, or similar techniques. In a January 15, 2004 memo to Gonzales, Muller, and Undersecretary of Defense Steve Cambone, Zelikow wrote, “We remain ready to work creatively with you on any option that can allow us to aid the intelligence community in cross-examining the conspriators on many critical details, clarify for us what the conspirators are actually saying, and allow us to evaluate the credibility of these replies.”

But these negotiations made little progress. Hamilton and commissioner Fred Fielding then met with Gonzales, Tenet, Secretary of Defense Rumsfeld, and Chris Wray from the Department of Justice. The administration offered to take sets of written followup questions, pose them to detainees, relay answers back to the Commission, and take further questions. In a January 26, 2004 meeting the Commission accepted this proposal as the best information it could obtain to address its longstanding questions.

Today’s document dump includes an interesting snapshot of the Administration response to the Commission request. (PDF 25-30)

It appears that David Addington took the lead on refusing the 9/11 Commission’s request. It appears Addington got the draft of the letter from 9/11 Commission–which was addressed to Rummy and George Tenet. Tenet and Addington clearly had a conversation about how to respond. But it seems that Addington drafted the response, got Condi, Andy Card, and Alberto Gonzales to review it, and then sent it to Tenet (and, presumably, Rummy) to okay and sign the letter.

In other words, OVP had the lead in refusing the 9/11 Commission’s request for more information from the detainees.

The document is also interesting for the underlining on the letter from the Commission. While it’s not clear who made the markings (though it seems likely to be Addington since that version of the letter clearly came from him), whoever made them appears to have reacted strongly against the Commission’s intention to independently evaluate the detainees and their interrogations. Read more →