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Tenet Refuses to Deny CIA Uses Journalism Cover–and Infiltrating American Groups

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There’s a whole lot more that came out in today’s document dump while I’ve been fighting about health care. Here are the set released in response to an EFF FOIA. As a number of outlets have reported, that set includes evidence the government was inappropriately surveilling domestic groups, including the Nation of Islam.

In the NYT’s story on the dump, there’s one more interesting bit: George Tenet refusing to issue a blanket denial that the US uses journalists as cover.

Among them was a letter written in 2002 by George J. Tenet, who was the director of the Central Intelligence Agency at the time, suggesting that a C.I.A. ban on using journalists as spies was not airtight.

After Islamic militants killed Daniel Pearl, a Wall Street Journal reporter whom they had falsely accused of working for the C.I.A., leaders of the American Society of Newspaper Editors asked Mr. Tenet to “declare unequivocally” that the agency’s spies never posed as journalists.

Mr. Tenet replied that for 25 years, the agency’s policy had been “that we do not use American journalists as agents or American news organizations for cover.” But he refused to make what he described as “a blanket statement that we would never use journalistic cover.”

Instead, he wrote, “the circumstances under which I would even consider any exception to this policy would have to be truly extraordinary.”

Note his emphasis on American journalistic outlets. Sounds like a giant loophole to me.

CIA Met with White House about How to Respond to Jane Harman’s Torture Warnings

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After being briefed on February 5, 2003 that the CIA had used waterboarding and intended to destroy tapes depicting that torture, Jane Harman wrote CIA General Counsel Scott Muller a letter raising concerns. Harman warned CIA they should not destroy the torture tapes, whether or not they constituted an official record.

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

And she asked directly whether President Bush had bought off on torture as a policy.

I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?

In his response to her, Muller basically ignored her warning about the torture tapes. And he gave her a very indirect answer to the question that–under the National Security Act–she should have been able to get a direct answer on, whether or not Bush had signed off on the torture.

While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

As it turns out, Scott Muller was not acting alone when he largely blew off Harman’s concern. Document 28 of the CIA’s Vaughn Index on the torture tape destruction reveals that CIA met with the White House about its response to Harman. (There’s also a one-page draft of the letter to Harman dated February 19.) The Vaughn Index describes the second email, which has the subject “Harmon Letter,” this way:

This is a one-page email, discussing a meeting between CIA and the White House regarding the CIA’s response to a congressional inquiry. The document also includes the draft text of a letter to Congress. This document contains information relating to the sources and methods of the CIA. The document also contains predecisional, deliberative information, CIA attorney work-product, and information provided by a CIA attorney to his client in connection with the provision of legal advice.

Thus, even though Harman’s letter and Muller’s response have been declassified, the CIA is claiming that we can’t know what Muller advised (himself? Bush? Tenet? Precisely who is the CIA General Counsel’s client, here?) about how to respond to Harman’s inquiry.

So we know that the White House weighed in on how to respond to Harman. We’re just not allowed to know how they weighed in.

Condi’s Response to Tenet’s Request for a Review of Torture

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Earlier this year, WilliamOckham found a document that appears to be George Tenet’s request of Condi–on June 4, 2004–for reiteration of approval of torture and/or a White House document endorsing the torture policy (click through to the post to see WO’s outline of the false information Tenet included in that document).

The ACLU has received Condi’s response, sent a week later. (h/t MadDog) The summary of the response describes the document as “Memorandum from Condoleezza Rice … regarding review of CIA’s Interrogation Program.” Condi appears to be putting Tenet off on DOJ.

I have reviewed your memorandum to me of June 4, 2004. As we have already discussed, the next logical step is for the Attorney General to complete the relevant legal analysis now in preparation. Once this work is completed and you have returned from your current travel, we can convene a Principals Committee meeting on this subject. In the interim, I will contact Attorney General Ashcroft to underscore the priority we attach to completing expeditiously the Department of Justice’s legal analysis. I also encourage you to carry through on your expressed intention of talking to the Attorney General directly on this subject before any Principals Committee meeting.

Now, the document is interesting when read against the background of reports that–at precisely this time–Tenet requested a document from the White House endorsing torture as a policy. That is, Condi’s response to Tenet’s request for a document from President Bush might have been to pawn Tenet off on DOJ.

With that in mind look at how these two documents–and Condi’s instruction that DOJ would have to review the torture program next–fit into the timeline of debate between DOJ and CIA.

June 3, 2004: Tenet announces his resignation; John McLaughlin resigns as well. SOUTHCOM Commander James Hill traces source of abusive techniques used on al-Qahtani to SERE training.

June 2004: (After announcing his resignation) Tenet requests more explicit approval water-boarding.

June 4, 2004: Tenet requests review from Condi.

June 7, 2004: WSJ refers to March 2003 OLC opinion.

June 8, 2004: WaPo reports on details of Bybee Memo.

June 10, 2004: Goldsmith tells Muller that the Legal Principles are not an opinion of OLC, demands any more request for opinions to be in writing.

June 11, 2004: Condi responds to Tenet’s request for review (Tenet receives this on June 14).

June 15, 2004: Goldsmith informs Ashcroft he will withdraw Bybee Memo and resigns. This effectively leaves the CIA with no legal protection for the water-boarding it had already done.

June 17, 2004: Jack Goldsmith announces his resignation.

June 18, 2004: Goldsmith writes Tenet telling him the IG Report mis-represents Ashcroft’s statements.

June 22, 2004: In an off-the-record briefing, Comey, Goldsmith, and Philbin renounce Bybee Memo. Rizzo sends Philbin copy of earlier approval from Yoo. Muller responds to Goldsmith saying he had forwarded the complaints to John Helgerson, but would release the IG Report that week.

No wonder things were getting so testy between CIA and DOJ. (It may also explain why Goldsmith only withdrew the Bybee One memo, and not the Bybee Two memo.)

Poppy Bush Not Joining Other DCIs Opposing Investigation of W Bush’s Torture

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There are a number of fascinating details in this letter from seven former living CIA Directors opposing DOJ’s torture investigation–starting with the fact that Poppy is one of just two three living CIA heads who didn’t sign (the others are Carter’s Stansfield Turner and close Poppy ally Robert Gates who, as Secretary of Defense, also has to weigh how our torture puts service men and women at risk). (h/t Ambinder)

Michael Hayden
Porter Goss
George Tenet
John Deutch
R. James Woolsey
William Webster
James R. Schlesinger

But that’s not all.

Note that these men are asking the President to intervene in a DOJ investigation.

We respectfully urge you to exercise your authority to reverse Attorney General Holder’s August 24 decision to re-open the criminal investigation of CIA interrogations that took place following the attacks of September 11.

They’re not asking Obama to pardon those CIA officers under investigation, which would be a proper request of the President; they’re asking Obama to spike an investigation the Attorney General has deemed necessary. They are, in short, asking for legal process to be set aside for, ultimately, a political decision.

And they’re making that request by appealing to an investigation conducted under a prior Attorney General–Alberto Gonzales–still (as far as we know) under investigation for politicizing DOJ.

The post-September 11 interrogations for which the Attorney General is opening an inquiry were investigated four years ago by career prosecutors.

They’re further making that request by appealing to a US Attorney–Paul McNulty–also involved in that politicization.

Career prosecutors under the supervision of the US Attorney for the Eastern District of Virginia determined that one prosecution (of a CIA contractor) was warranted.

So they pile up political interference on top of political interference. Now, these former DCIs repeat the term "career prosecutor" four times. And it may well be the case that–unlike some other cases under Alberto Gonzales–there was no interference here.  But they ignore one of the precipitating causes for the investigation being reopened: The Office of Public Responsibility’s finding that there was serious misconduct involved with the referrals in these cases (the DCIs say there were fewer than 20).

It has been known that the Justice Department ethics report had criticized the authors of the legal opinions and, in some cases, would recommend referrals to local bar associations for discipline.

But the internal inquiry also examined how the opinions were carried out and how referrals of possible violations were made — a process that led ethics investigators to find misconduct serious enough to warrant renewed criminal investigation. 

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Which 2003 Document Was Hayden Talking About?

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I’d like to return to this post, in which I tried to figure out which 2003 OLC opinion approved–according to Michael Hayden–waterboarding.

Michael Hayden said something that confused me today on Fox News. When asked whether he thought waterboarding is torture, he replied simply that DOJ had said it was not.

Question: Are you satisfied that waterboarding is not torture?

HAYDEN: I’m satisfied that the Justice Department, in a series of opinions — ‘02, ‘03, ‘05 — said that it was not. Now…

See, we know that DOJ addressed waterboarding specifically in 2002 and 2005 in the memos released last week. 

But 2003?

We may well have found our answer in the IG Report. As I’ve been chronicling, John Yoo helped the Counterterrorism Center develop a "Legal Principles" document in 2003 that included waterboarding among permissible techniques. Scott Muller would claim Yoo’s involvement in the process constituted DOJ agreement with the principles espoused in the document. But in 2004, Jack Goldsmith asserted that the Legal Principles document, "did not and do not represent an opinion or a statement of the views" OLC. 

So it appears likely that Michael Hayden claimed that OLC had written an opinion on waterboarding that OLC claims does not constitute an opinion. If so, then the squabble between OLC and CIA over that document remains active (or at least did, as of earlier this year, when Hayden still headed the CIA).

But there’s another part of the earlier post I’d like to return to: a 2003 "secret memo" from the White House "explicitly endorsing" CIA’s use of torture.

Here’s the WaPo’s description of this 2003 memo, from last year when we were all trying to elect Barack Obama President. 

The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of interrogation techniques such as waterboarding against al-Qaeda suspects — documents prompted by worries among intelligence officials about a possible backlash if details of the program became public.

Now that we know of the "Legal Principles" document, I don’t think this is what Hayden referred to, since there was also a 2004 document and Hayden didn’t mention a 2004 OLC endorsement of torture (which is all the more remarkable, given that Daniel Levin did authorize the use of waterboarding in an August 2004 letter).

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Ashcroft versus CIA

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When I read the CIA IG Report yesterday, I thought to myself, "Of course! They didn’t investigate all the instances when torturers exceeded the Bybee Two memo description of waterboarding because John Ascroft approved of them."

I got that from reading the following passages:

On 29 July 2003, the DCI and the General Counsel provided a detailed briefing to selected NSC Principals on CIA’s detention and interrogation efforts involving "high value detainees," to include the expanded use of EITS.28 According to a Memorandum for the Record prepared by the General Counsel following that meeting [which was dated August 5, 2003], the Attorney General confirmed that DoJ approved of the expanded use of various EITs, including multiple applications of the waterboard.29 The General Counsel said he believes everyone in attendance was aware of exactly what CIA was doing with respect to detention and interrogation, and approved of the effort.

[snip]

The Review determined that the interrogators used the waterboard on Khalid Shaykh Muhammad in a manner inconsistent with the SERE application of the waterboard and the description of the waterboard in the DoJ OLC opinion, in that the technique was used on Khalid Shaykh Muhammad a large number of times. According to the General Counsel, the Attorney General acknowledged he is fully aware of the repetitive use of the waterboard and that CIA is well within the scope of the DoJ opinion and the authority given to CIA by that opinion. The Attorney General was informed the waterboard had been used 119 times on a single individual. [my emphasis]

But John Ashcroft disagrees with that representation, as relayed in a June 18, 2004 letter from Jack Goldsmith to George Tenet.

Dear Director Tenet:

I am writing at the Attorney General’s request concerning a report that that [sic] the Inspector General of the CIA has recently forwarded to your office. The Department of Justice did not have an opportunity to review a draft of the report and instead only had a chance to review the final report after it had been forwarded to your office.

The Department of Justice believes that the report contains some ambiguous statements concerning the Attorney General’s remarks at a 29 July 2003 meeting of selected NSC principals that should be clarified and that it contains some statements that mistakenly characterize the extent of advice provided by the Department.

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The Use of Photographs as Propaganda

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khalid_shaikh_mohammed_after_capture.jpg

Go read JimWhite’s diary about the military’s complaints that the Taliban are using a video of a captured American soldier as propaganda.

They’re exploiting the soldier for their own propaganda.

[snip]

The Taliban are using it as a propaganda tool.

Then read this passage from George Tenet’s book, co-written with Bill Harlow:

By the next morning, Sunday, March 2, US media outlets were carrying news of the [KSM] capture as well. Some of the stories described the worldly KSM as an al-Qa’ida James Bond. To illustrate the point, they showed photos of him with a full beard wearing what were supposedly his traditional robes. It didn’t take long for Marty to phone me and relay his disgust at some of the coverage.

[snip]

“Boss,” he said, “this ain’t right. The media are making this bum look like a hero. That ain’t right. You should see the way this bird looked when we took him down. I want to show the world what terrorists look like!”

Turns out, our officers on the scene in Rawalpindi had snapped and sent back some digital photos of KSM just after his capture, so I suggested that Marty call the Agency spokesman, Bill Harlow, and work something out. Within an hour, Harlow was in CTC looking over a selection of photos that made KSM look nothing like James Bond. Together they picked out the most evocative photo. Then Harlow, armed with a digital copy, called up a reporter at the Associated Press and told him, “I’m about to make your day.” Asking only that the AP not reveal where they got the picture, he released the image of a stunned, disheveled, scroungy KSM wearing a ratty T-shirt. The photo became one of the iconic images of the war on terrorism. If we could have copyrighted it, we might have funded CTC for a year on the profits. Foreign intelligence services later told us that the single best thing we ever did was release that photo. It sent a message more eloquently than ten thousand words ever could that the life of a terrorist on the run is anything but glamorous.

I hope to hell that soldier comes home safely and I’m sorry the Taliban used his image for propaganda purposes.

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“Certain Officers”

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Wow. This spat on the CIA lying to Congress is like a tennis game. First there was Silvestre Reyes’ letter to Crazy Pete reminding him that CIA had affirmatively lied to Congress. Then seven Congressmen and women released a letter saying that Panetta had recently told them that "top CIA officials have concealed significant actions from all Members of Congress."

Now Reyes has released a statement. (h/t Laura Rozen)

I appreciate Director Panetta’s recent efforts to bring issues to the Committee’s attention that, for some reason, had not been previously conveyed, and to make certain that the Committee is fully and currently briefed on all intelligence activities. I understand his direction to be that the Agency does not and will not lie to Congress, and he has set a high standard for truth in reporting to Congress.

I believe that CIA has, in the vast majority of matters, told the truth. But in rare instances, certain officers have not adhered to the high standards held, as a rule, by the CIA with respect to truthfulness in reporting. Both Director Panetta and I are determined to make sure this does not happen again.

The men and women of the CIA are honest, hard-working patriots, and they do not deserve the distraction to their mission that this current issue has caused.

So, to conclude:

  1. Panetta confirmed that someone was lying in the past.
  2. Reyes will give Panetta the benefit of the doubt going forward.
  3. The men and women in the CIA are patriots.
  4. Our President still wants to maintain this system of abusive secrecy. 

I’m particularly interested in Reyes’ mention of "certain officers." Would those officers happen to be named Jose Rodriguez and/or Porter Goss, I wonder? Both of whom would fit the description the 7 members of Congress used, "top CIA officials." And hell, while we’re at it, let’s throw George Tenet onto that list as well…

So if just "certain officers" have been lying to Congress, what are we going to do about it?

Tenet: “No Papers, No Opinions, No Program”

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The WaPo has a very detailed story out about the 2004 IG Report. Most interesting, to me, is the suggestion that Tenet’s resignation on June 3, 2004 came amidst his refusal to continue the torture program without written authorization from the White House.

After the report was issued, then-CIA director George J. Tenet demanded that the Justice Department and the White House reaffirm their support for the agency’s harsh interrogation methods, even when used in combination, telling others at the time that "no papers, no opinions, no program." At a White House meeting in mid-2004, he resisted pressures to reinstate the program immediately, before receiving new legal authorization, according to a source familiar with the episode.

The Justice Department subsequently sent interim supporting opinions to the CIA, allowing its resumption after Tenet’s departure, and went on to complete three lengthy reports in 2005 that affirmed in detail the legality of the interrogation techniques with some new safeguards that the CIA had begun to implement in 2003.

And the story also explains–to a degree–why we got the three opinions we got in May 2005. The judgment of the report that the program was "degrading" was tied to the nudity involved.

The report also expressed particular concern that questioners had violated a legal prohibition against "degrading" conduct by stripping detainees, sometimes in the presence of women, according to a source who has read it.

Which partly explains why the Techniques memo includes nudity–after the CIA had used it for three years. 

And the story ties the Combined memo to the combination of stress positions and sleep deprivation–which we know had already been found to be the cause of death in some detainees.  

The report further questioned the legality of using different combinations of techniques — for example, sleep deprivation combined with forced nudity and painful stress positions, according to sources familiar with the document. While Justice Department lawyers had determined in August 2002 that the individual techniques did not constitute torture, the report warned that using several techniques at once could have a far greater psychological impact, according to officials familiar with the document.

"The argument was that combining the techniques amounted to torture," said a former agency official who read the report. "In essence, [Helgerson] was arguing in 2004 that there were clear violations of international laws and domestic laws."

What was it Jonathan Fredman had said–if the detainee dies it’s torture? Read more →

Why Did Tenet Create a False Record on the Day After He “Quit”?

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William Ockham made another really important discovery:

I’d like to point to a document that was released a year ago (5/27/2008) as part of the ACLU’s ongoing torture FOIA. It’s a heavily redacted memo dated June 4, 2004 from George Tenet to the National Security Advisor (Rice). By June 2004, Tenet is on his way out as CIA director, the Abu Ghraib scandal has hit with full force, the CIA IG’s report has just been finished (but not yet briefed to Congress) and the 2004 Presidential campaign is in full swing. The CIA prison system was mostly still secret, but they had just released Khaled el-Masri in May 2004. The story of the ghost detainees in Iraq was just about to break.

With that as the background, here’s the parts of the second page of the memo that aren’t redacted (all the rest except the date, sender, and addressee are redacted:

3. As you know, beginning in September 2002, the Justice Department authorized CIA in its discretion, to employ on selected HVDs [Redaction ~3 lines] waterboard, [Redaction ~2 lines] CIA has reserved use of these [Redaction] techniques to elicit ongoing threat information from the most hardcore, senior terrorist figures that have been captured– men such as Khalid Sheik Muhammad, Abu Zubaydeh, [Redaction ~ 7 lines] key members of Congress have been briefed from the beginning–CIA informed the leadership of the Congressional Intelligence Committees of the existence and nature of the Program when it commenced in late 2002, in early 2003 when members of the leadership changed, and again in September 2003.

Rice and Tenet both knew that most of that was not true. They knew the program commenced long before September 2002, that the DOJ memos (which were not authorizations) came in August, that the Congressional briefings were after the fact and completely inadequate from a statutory perspective. What is this memo other than an attempt to create an after-the-fact coverup?

I’d add two details to those WO offers. The document appears not just after Tenet was on his way out, but the day after Bush announced his resignation. And it happened around the time Tenet asked for written endorsement from Bush of the torture program.

The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of interrogation techniques such as waterboarding against al-Qaeda suspects — Read more →