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The Bush Administration Did Not Give Legally-Required Prior Notification to Congress

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We know, because Michael Hayden confirmed it the other day, that the torture program started as a covert operation (at 1:45).

By law, covert operations must be supported by a Presidential Finding (or Memorandum of Notification, which is reportedly what was used here) and require prior notification to Congress.

Congressional Notification

  •  The Requirement to Notify Congress

Consistent with section 501 of the National Security Act of 1947, as amended (50 U.S.C. 413), and unless the President otherwise directs in writing pursuant to his constitutional authorities and duties, Congress shall be notified on the President’s behalf of all special activities in accordance with this Directive.

  •  Contents of Notification

In all cases, notification to Congress as provided herein shall include a copy of the Finding or associated MON, if any, as signed by the President, and the statement described in section II.A.3 hereof.

  •  Prior Notification

Consistent with the expectation of prior notification to Congress, in all but extraordinary circumstances as specified herein, the DCI, or head of such other Executive department aqency, or entity authorized to conduct a special activity, shall notify Congress, on the President’s behalf, through the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives (hereinafter collectively referred to as the "Intelligence Committees"), prior to initiation of each special activity authorized by a Finding and associated MON, if any. In extraordinary circumstances affecting the vital interests of the United States, the DCI, or head of such other Executive department, agency, or entity authorized to conduct a special activity, shall notify Congress, on the President’s behalf, through the Majority and Minority Leaders of the Senate the Speaker and Minority Leader of the House of Representatives, and the Chaiman and Vice Chairman of the Senate Select Committee on Intelligence, and the Chairman and Ranking minority Member of the Permanent Select Committee on Intelligence of the House of Representatives, prior to initiation of a special activity authorized by a Finding and associated MON, if any.

  •  Extraordinary Circumstances

If the President determines that it is necessary, in order to meet rare, extraordinary circumstances, to delay notification until after the initiation of a special activity, the DCI, or head of such other Executive department, agency, or entity authorized to conduct a special activity, shall delay notification consistent with section 501(b) at the direction of the President. Read more →

Did Cheney Order Up Abu Zubaydah’s 83rd Waterboarding?

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McClatchy reports that one of the reasons Khalid Sheikh Mohammed got waterboarded 183 times and Abu Zubaydah got waterboarded 83 times is that Cheney and Rumsfeld refused to believe they had no information on ties between Al Qaeda and Iraq. (h/t Hmmm)

The Bush administration put relentless pressure on interrogators to use harsh methods on detainees in part to find evidence of cooperation between al Qaida and the late Iraqi dictator Saddam Hussein’s regime, according to a former senior U.S. intelligence official and a former Army psychiatrist.

[snip]

A former senior U.S. intelligence official familiar with the interrogation issue said that Cheney and former Defense Secretary Donald H. Rumsfeld demanded that intelligence agencies and interrogators find evidence of al Qaida-Iraq collaboration.

"There were two reasons why these interrogations were so persistent, and why extreme methods were used," the former senior intelligence official said on condition of anonymity because of the issue’s sensitivity.

"The main one is that everyone was worried about some kind of follow-up attack (after 9/11). But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."

This suggests that when Abu Zubaydah was waterboarded an additional time–perhaps his 83rd–against the judgment of the interrogators working with him directly, the "elements with CIA Headquarters" that ordered up the additional torture were being pushed by Cheney and Rummy (a suggestion JimWhite made here).

This is not to say that the interrogation program has worked perfectly. According to the IG Report, the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information. See IG report at 83-85. On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques. On that occasion, although the on-scene interrogation team judged Zubaydah to be compliant, elements with CIA Headquarters still believed he was withholding information. [Redaction of more than one full line] See id, at 84. At the direction of CIA Headquarters interrogators, therefore used the waterboard one more time on Zubaydah. [Redacted] See id, at 84-85. [my emphasis]

I’ll have more to say on the intelligence they got from Abu Zubaydah in a later post. But if Cheney can be tied–presumably through Tenet–to waterboarding sessions that even the torturers Read more →

OLC + CIA = CYA

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I wanted to make two points about Spencer’s important story at the Windy, identifying a previously unknown 2007 Bradbury torture memo.

A former senior intelligence official, who would not speak for the record, said that in 2007, the head of the Justice Department’s Office of Legal Counsel, Steven Bradbury, issued a still-secret memorandum authorizing an updated CIA interrogation regimen. The Justice Department issued the document after months of internal Bush administration debate, a Supreme Court decision in 2006 that extended protections from Common Article 3 of the Geneva Conventions to enemy combatants in U.S. custody, a piece of new legislation responding to the Court’s decision and a presidential executive order on interrogations.

[snip]

The still-unreleased Office of Legal Counsel memo spelled out for the CIA what interrogation practices were considered lawful after President Bush issued an executive order on July 20, 2007 that sought to reconcile the CIA’s interrogation program with the Geneva Conventions’ Common Article 3, which prohibits inflicting “outrages upon personal dignity, in particular humiliating and degrading treatment” upon wartime detainees.” The Supreme Court, in 2006’s Hamdan v. Rumsfeld decision, ruled that Common Article 3 protections applied to enemy combatants in U.S. custody, a determination that the Bush administration had resisted since creating its post-9/11 detention and interrogation policies. Congress in 2006 responded by passing the Military Commissions Act, which reserved for the president the right to define the applicability of Common Article 3 protections for detainees in the war on terrorism. Bush’s order, known as Executive Order 13440, determined that the the CIA’s interrogation program fit within Common Article 3, provided that it met certain criteria, such as the exclusion of practices like “murder, torture, cruel or inhuman treatment, mutilation or maiming.”

But the order did not define which interrogation techniques it now considered legal. Anonymous Bush administration officials told reporters on the day of the order’s release, “it would be very wrong to assume that the program of the past would move into the future unchanged.” As a result, according to the former senior intelligence official, after Bush issued the order, the CIA again asked the Justice Department’s Office of Legal Counsel to review the techniques listed in the revised interrogation program in order to determine their legality, just as the Office of Legal Counsel had done in 2002 and 2005, after previous periods of challenge to the post-9/11 interrogation program. [my emphasis]

Note the timing. Read more →

The CIA Directors Protecting Themselves

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The AP reports that along with John Deutsch and Michael Hayden, George Tenet and Porter Goss have criticized Obama’s release of the torture memos.

Of course Tenet and Goss would criticize Obama’s decision. Both of them are personally implicated by revelations in the memos.

As I noted (as did William Ockham–I stole his transcription), the May 30, 2005 memo makes it clear that people at CIA Headquarters ordered Abu Zubaydah to be waterboarded additional time(s)–for the 83rd time, perhaps?–even after interrogators working with him directly believed he was complying with their demands.

This is not to say that the interrogation program has worked perfectly. According to the IG Report, the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information. See IG report at 83-85. On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques. On that occasion, although the on-scene interrogation team judged Zubaydah to be compliant, elements with CIA Headquarters still believed he was withholding information. [Redaction of more than one full line] See id, at 84. At the direction of CIA Headquarters interrogators, therefore used the waterboard one more time on Zubaydah. [Redaction of ~3/4 of a line] See id, at 84-85.

We can’t pin this on Tenet directly, though we do know Bush was pressuring Tenet at the time to deliver some kind of intelligence that would substantiate Bush’s public assertions that Abu Zubaydah was important within the Al Qaeda ranks.

"I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You’re not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth,"

And in any case, we know that the one time when even the CIA agrees Abu Zubaydah was waterboarded "needlessly," it was done on the order of CIA headquarters under Tenet’s leadership.

Also as I noted, the May 10, 2005 "Techniques" memo reveals that Abu Zubaydah’s interrogator far exceeding OLC guidlines on how to administer waterboarding. 

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 ("[T]he waterboard technique  … was different from the technique described in the DoJ opinion and used in the SERE training. Read more →

Chalabi: “I am convinced [there was] an implicit agreement between America and Iran”

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Whoops. That little investment in fraudster and Iranian ally Ahmed Chalabi keeps looking like a worse and worse idea, huh, Bush? (h/t Tom Ricks)

[Al-Hayat]: What would you tell George Bush if you met him, in a party for example?

[Chalabi]: I would say: thank you for toppling Saddam but I am displeased with what you did afterwards.

[Al-Hayat]: Do you believe that it is possible for a superpower to commit such terrible mistakes?

[Chalabi]: Yes, very possible.

[Al-Hayat]: If you want to describe George Bush, then how would you describe him?

[Chalabi]: A man with very little skill and knowledge.

[Al-Hayat]: He did Iran a great service by toppling Saddam?

[Chalabi]: Iran benefited from toppling Saddam. Bush didn’t mean to do it a favor but it was clear that Iran would benefit from Saddam’s fall. I am convinced that Saddam would not have fallen except for an implicit agreement between America and Iran.

But my favorite part is where Ahmed Chalabi takes credit for getting George Tenet fired.

[Chalabi]: I accused the director of the CIA George Tenet and I said that he was behind the [May 2004 raid on Chalabi’s compound] despite the fact that I received a letter through one of my friends that stressed that I shouldn’t attack the CIA. When Tenet was ousted 10 days later, Hillary Clinton, a senator at the time, said that Ahmad Chalabi was behind Tenet’s dismissal. When I was asked about this, I answered: I am in Al-Najaf, how could I oust him?

Not that I disbelieve Chalabi had a part (though remember that Chalabi ally Dick Cheney had other reasons to want to take Tenet out in the days after he got questioned in the Plame leak).  I’m just amused that the notion that Chalabi could get the Director of CIA fired is plausible enough for this consummate fraudster to claim.

Who Signed the Explicit Authorization to Torture?

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The WaPo reveals that in June 2003, and again in July 2004, the CIA sought and got a memo explicitly authorizing the torture methods used in interrogation.

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. 

The article explains that Tenet felt he needed such memos to make sure the CIA had "top cover" for its actions.

The repeated requests for a paper trail reflected growing worries within the CIA that the administration might later distance itself from key decisions about the handling of captured al-Qaeda leaders, former intelligence officials said.

[snip]

A. John Radsan, a lawyer in the CIA general counsel’s office until 2004, remembered the discussions but did not personally view the memos the agency received in response to its concerns. "The question was whether we had enough ‘top cover,’ " Radsan said. 

[snip]

The CIA’s anxiety was partly fueled by the lack of explicit presidential authorization for the interrogation program.

[snip]

By the spring of 2004, the concerns among agency officials had multiplied, in part because of shifting views among administration lawyers about what acts might constitute torture, leading Tenet to ask a second time for written confirmation from the White House.

But at that point, the story gets all vague. What the CIA was seeking, obviously, was a document signed by someone other that John Yoo, someone whose ass would be on the line along with the CIA if the torture program became public. That document would presumably implicate at least top aides to Bush, if not Bush himself. But the WaPo doesn’t describe who that person is.

Days later, he got what he wanted: a brief memo conveying the administration’s approval for the CIA’s interrogation methods, the officials said. Administration officials confirmed the existence of the memos, but neither they nor former intelligence officers would describe their contents in detail because they remain classified. 

[snip]

Finally, in mid-July, a memo was forwarded to the CIA reaffirming the administration’s backing for the interrogation program. Tenet had acquired the statement of support he sought. 

I’ve updated the torture timeline, and the timing is fascinating (the second memo came, for example, just after Goldsmith and Olson left DOJ, Read more →

Not a Question of If, But Who, Forged the Letter

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As a number of you pointed out last night, Philip Giraldi says Suskind got the forged uranium document close, but no cigar.

An extremely reliable and well placed source in the intelligence community has informed me that Ron Suskind’s revelation that the White House ordered the preparation of a forged letter linking Saddam Hussein to al-Qaeda and also to attempts made to obtain yellowcake uranium is correct but that a number of details are wrong.

[snip]

My source also notes that Dick Cheney, who was behind the forgery, hated and mistrusted the Agency and would not have used it for such a sensitive assignment. Instead, he went to Doug Feith’s Office of Special Plans and asked them to do the job. The Pentagon has its own false documents center, primarily used to produce fake papers for Delta Force and other special ops officers traveling under cover as businessmen. It was Feith’s office that produced the letter and then surfaced it to the media in Iraq. Unlike the Agency, the Pentagon had no restrictions on it regarding the production of false information to mislead the public. Indeed, one might argue that Doug Feith’s office specialized in such activity.

Now, I’m not at all surprised that Giraldi says Suskind got details wrong. The story always had a fundamental logical flaw (which Giraldi points out), which is that Cheney and CIA hate each other–and particularly hated each other in this period, when OVP believed Tenet had forced DOJ to open the Plame investigation. Note, there is significant reason to believe that Tenet knew Cheney declassified CIA properties over his objections, so things were probably quite tense between CIA and OVP, just as OVP was handing over documents showing that Cheney was the one pushing to leak Plame’s identity.

Also, as I pointed out here, Bob Woodward (well, consider the source) has said that Suskind’s CIA sources have led him astray in the past. And, as I pointed out here, there is something surprisingly credible about Tenet’s insistence that he always–up to and including late 2003–refused to endorse the Iraq-Al Qaeda claims. So there is reason to take Giraldi’s post seriously.

But something still doesn’t sit right with Giraldi’s story, either. As Sara points out, Iyad Allawi was a CIA guy, not–at first–an OVP guy. (OVP’s guy, Ahmad Chalabi, himself a fan of forgeries, discredited this one right away.) Read more →

Tenet and the “Creamy White House Stationery”

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Tenet begs to differ with two of the incidents reported out of Suskind’s book so far.

First, to rebut the forgery story, he makes this rather convincing point about his own past refutation of the Al Qaeda-Iraq allegations.

It is well established that, at my direction, CIA resisted efforts on the part of some in the Administration to paint a picture of Iraqi-Al Qa’ida connections that went beyond the evidence. The notion that I would suddenly reverse our stance and have created and planted false evidence that was contrary to our own beliefs is ridiculous.

It’s true that Tenet repeatedly pushed back against OVP’s efforts to claim Iraq and Al Qaeda had any ties, right up to the beginning of the war.

Still, I can’t help but think of this passage from Bob Drogin’s Curveball, describing Tenet’s state of mind in the November 2003 to January 2004 time frame, when this letter would have been planted.

Neither [Tenet nor McLaughlin] tried to persuade [David Kay] to stay. Nor did they accept his conclusions. "I don’t care what you or anyone else says," Tenet insisted. "I know they had WMD."

Kay was astonished. My God, he thought, he’s still so invested in this he won’t admit a mistake.

The CIA leaders made only one parting request: don’t talk to the press.

Things were different in November 2003 than they were in March 2003, when Tenet successfully pushed back against the Al Qaeda-Iraq claim. Further, CIA was gearing up efforts to turn Zarqawi into enemy number one. So it’s possible Tenet changed his tune out of desperation at David Kay’s refusal to flub the record for the Administration.

I’m more interested in Tenet’s response to Suskind’s claim that the Iraqi who signed the letter, Tahir Jalil Habbush al-Tikriti, had told the British that there were no WMD. Here’s the allegation:

The author also claims that the Bush administration had information from a top Iraqi intelligence official “that there were no weapons of mass destruction in Iraq – intelligence they received in plenty of time to stop an invasion.”

[snip]

Suskind writes that the White House had “ignored the Iraq intelligence chief’s accurate disclosure that there were no weapons of mass destruction in Iraq – intelligence they received in plenty of time to stop an invasion.

And here’s Tenet’s response:

One supposed “news” item from the book apparently asserts that British intelligence had a high-placed Iraqi source who convincingly told them before the start of the war that Iraq had no WMD and that the British relayed this to the United States. Read more →

Who “We” Included in the Torture Briefings

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rincewind made an important point in my post on the torture briefings. At least one of the sources for the story must be one of the briefees, not a briefer. rincewind points to these two quotes that come from someone within the committee.

“It kept coming up. CIA wanted us to sign off on each one every time,” said one high-ranking official who asked not to be identified. “They’d say, ‘We’ve got so and so. This is the plan.’”

[snip]

“These discussions weren’t adding value,” a source said. “Once you make a policy decision to go beyond what you used to do and conclude it’s legal, (you should) just tell them to implement it.”

This source obviously considers himself as one of the people receiving the briefing, which further suggests this source is not in the CIA.

As luck would have it, via Troutfishing’s diary and this McGovern piece, I checked out this February 7, 2002 memo in which Bush declares that Al Qaeda will not be entitled to Geneva Convention protections. The memo seems to indicate that it is addressed to all the people who have participated–at least thus far–in discussions on torture; it refers to "our recent extensive discussions regarding the status of Al Qaeda and Taliban detainees." Now check out the list of addressees:

Dick Cheney
Colin Powell
Rummy
John Ashcroft
Andy Card
George Tenet
Condi Rice
Richard Myers

In other words, two of the people whom Bush noted as being involved in "extensive discussions regarding the status of Al Qaeda and Taliban detainees" are not included in the list ABC News gave of the attendees of the meetings that took place slightly later in 2002: Andy Card and Richard Myers. Either is a possibility to be the "high-ranking official" who objected to the repeated discussions of what techniques to use. Certainly, Myers is on the record as having opposed the decision not to extend Geneva Convention protections to Al Qaeda (most recently in reports from Feith’s book). And he would count as "high-ranking" in more than one sense (though neither he, nor Card, is still an official, after all).

Read more →

Remember the Torture Tapes?

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Just about everyone is talking about ABC’s confirmation of what we already knew: the torture was approved–in excruciating detail–by the most senior members of the Bush Administration.

In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

The so-called Principals who participated in the meetings also approved the use of "combined" interrogation techniques — using different techniques during interrogations, instead of using one method at a time — on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects — whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

The advisers were members of the National Security Council’s Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

Now, the article is actually incredibly vague about which of the high-value detainees the Principals discussed interrogating. For example, it suggests that Abu Zubaydah’s torture was planned by the Principals. But then–where elsewhere it asserts that all of the Principals approved the torture–it backs off that claim specifically with regards to Zubaydah.

But after Zubaydah recovered from his wounds at a secret CIA prison in Thailand, he was uncooperative.

[snip]

The CIA wanted to use more aggressive — and physical — methods to get information.

The agency briefed high-level officials in the National Security Council’s Principals Committee, led by then-National Security Advisor Rice and including then-Attorney General Ashcroft, which then signed off on the plan, sources said. It is unclear whether anyone on the committee objected to the CIA’s plans for Zubaydah.

Read more →