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More on CIA’s Fictions about Executive Branch and Congressional Briefings

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I’ve been promising to return to the way that the CIA IG Report discusses the Congressional and Executive Branch approvals for the torture program. Particularly given John McCain’s complaint that CIA misrepresented what he said in a torture briefing, I thought it time to do so.

A close look at the claims the IG Report made about approvals shows it:

  • Repeats earlier CIA vagueness and outright lies about Congressional briefings and individual Members’ responses to those briefings
  • Emphasizes the centrality of DOJ to approvals, at times misleadingly 
  • May obscure the timing of and the participants in White House approval of the program

Now, remember, it’s not clear whether these fictions are the IG’s fiction, or whether John Helgerson’s team was given crappy information. One other thing to keep in mind, though, is that the IG Report appears to have been drafted as early as February 24, 2004–over two months before it was ultimately released. While Cheney had a chance to review the document, DOJ did not. And Congress was only given the document the week of June 18, 2004, when Ashcroft started balking at its content.

What follows is a paragraph by paragraph assessment of the CIA IG’s claims about Congressional and Executive Branch approvals for torture. 

45. At the same time that OLC was reviewing the legality of EITs in the summer of 2002, the Agency was consulting with NSC policy staff and senior Administration officials. The DCI briefed appropriate senior national security and legal officials on the proposed EITs. In the fall of 2002, the Agency briefed the leadership of the Congressional Intelligence Oversight Committees on the use of both standard techniques and EITs.

To some degree the first sentence of the paragraph matches what appears in the SSCI Narrative, which shows the following "consultations:"

April 2002: OGC "began discussions with [Bellinger] and OLC concerning the CIA’s proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation. Bellinger briefed Condi Rice, Stephen Hadley, Alberto Gonzales, John Ashcroft, Michael Chertoff

Mid-May 2002: OGC meets with Ashcroft, Condi, Hadley, Bellinger, and Gonzales

July 13, 2002: OGC met with Bellinger, Yoo, Chertoff, Daniel Levin, Gonzales

July 17, 2002: George Tenet met with Condi, who okays torture program

Though of course, it uses a rather broad definition of "summer." I’m also curious about the "at the same time" description. The SSCI narrative notes that OGC didn’t talk to OLC until after the first consultations. And neither of these account for the alleged earlier approvals going back to at least May. Neither of these account for the meetings between the War Council (Addington, Yoo, Haynes, Rizzo, and Gonzales) going back much further. Furthermore, neither lists the July 13, 2002 letter from Yoo to Rizzo basically instructing him how to game the law. In other words, I wonder (as I have since the SSCI Narrative came out) whether the NSC-CIA discussions are really a distraction from the much earlier approvals involving other lawyers like Addington and Haynes?

Now onto the sentence describing the Congressional briefing. Read more →

Democrats versus the Satellites–Democrats Win!!

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I’ve been writing about the National Applications Office for close to two years–since the time Michael Chertoff tried to sneak through the satellite surveillance program without telling Congress or having the legally required privacy review completed. At that time, Bennie Thompson wrote Chertoff a sternly-worded letter.

Through media reports I learned of the Department’s intent to create a National Applications Office (NAO) that will purportedly be tasked with facilitating the use of “spy” satellites for domestic homeland security and law enforcement purposes. Unfortunately, I have had to rely on media reports to gain information about this endeavor because neither I nor my staff was briefed on the decision to create this new office prior to the public disclosure of this effort.

[snip]

Turning to the matter at hand, I understand that the target date for NOA operation is October 1, 2007. With less than six weeks remaining until the anticipated “roll out” of this effort, I am concerned that several fundamental issues have not been adequately addressed. For instance, the Department’s failure to include its own Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties in the initial planning stages for the NAO raises serious concerns about the extent to which valid privacy and civil liberties concerns raised by the domestic use of this technology may have been considered and addressed prior to this projected roll out date.

After learning in a hearing that the program was as bad as perceived, Thompson called for a moratorium on the program.

Then, just two weeks ago, Jane Harman caught DHS trying to sneak the program through Congress in its classified budget.

But Siobhan Gorman reports that–after the nation’s police chiefs told Janet Napolitano a bunch of satellite feeds really weren’t going to help them do their jobs as much as old-fashioned information sharing–Napolitano is killing the program.

The Obama administration plans to kill a controversial Bush administration spy satellite program at the Department of Homeland Security, according to officials familiar with the decision.

[snip]

"It’s being shut down," said a homeland security official.

The Bush administration had taken preliminary steps to launch the office, such as acquiring office space and beginning to hire staff.

The plans to shutter the office signal Homeland Security Secretary Janet Napolitano’s decision to refocus the department’s intelligence on ensuring that state and local officials get the threat information they need, the official said. Read more →

On Jane Harman and NAO

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A number of you have sent this piece, reporting that Jane Harman is trying to shut down the National Applications Office.

[Harman] has introduced two bills that would shutter the Department of Homeland Security’s innocuously-named National Applications Office.

In the waning days of the Bush administration, DHS officials began implementing plans to use NAO to oversee the training of military satellites on domestic targets — with funding for the program tucked in last year’s stopgap funding funding bill.

To the surprise of some in Congress, DHS Secretary Janet Napolitano quietly inserted renewed funding for the program in the "classified annex" to the agency’s FY2010 budget.

Harman’s bill would eliminate the office — and a companion measure from Rep. Norm Dicks (D-Wash.) would completely de-fund NAO.

Glenn Thrush unfortunately ties Harman’s actions to the AIPAC-related wiretaps, which has led a number of people (including, perhaps, Thrush) to suggest she’s doing this solely because she’s smarting about being surveilled.

That’s unfortunate, because the surveillance is unrelated, and because the House Committee on Homeland Security–particularly its Chair, Bennie Thompson–has been taking a very proactive lead on this issue from the start. Harman, remember, chairs the Homeland Security Subcommittee on Intelligence, which makes her exactly the right person to oppose this provision put through in the funding bill’s classified annex.

Harman, Dicks, and Thompson are doing the right thing in opposing this. Thompson, in particular, has been pushing for some oversight on this for a long time. We should be applauding efforts to insist on that oversight.

John Durham’s Torture Tape Documents

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Jason Leopold reported on and posted a late update to the ongoing torture tape FOIA exchange. If I read the latest exchange correctly, Special Prosecutor John Durham is at least preparing to identify–and potentially make available through FOIA–a number of older documents on the torture tape destruction, as well as admitting that some more recent documents on the torture tape destruction exist.

Today’s letter does two things. First, it withdraws John Durham’s objection to Judge Hellerstein’s order that:

The government shall produce documents relating to the destruction of the tapes, which describe the persons and reasons behind their destruction, from a period reasonably longer than April through December 2002. I find that the period for such production should be April 1, 2002 through June 30, 2003. If this longer period imposes an unreasonable burden, the Government should show why, and whether a reasonably shorter period would provide sufficient disclosure.

Today’s letter states:

For the reasons stated in the enclosed ex parte letter from John H. Durham provided for the Court’s in camera review, we write to advise the Court that Mr. Durham withdraws his objection to paragraph 4 of the Court’s April 20, 2009 Order.

In addition, the letter admits that the CIA has documents pertaining to the torture tape destruction,

that fall outside the date range provided in the Order; namely, April 1, 2002 through June 30, 2003. Mr. Durham may have objections to the production of documents created outside the date range specified in the Order.

This news is not surprising–it had always bugged me that the otherwise thorough Hellerstein hadn’t demanded documents for the period right up until the destruction of the torture tapes in November 2005. Now, Durham is admitting such documents exist–which we knew, because among other things, we knew that John Negroponte sent Porter Goss a memo in 2005 telling him not to destroy the tapes. But it’s nice to know that Durham is willing to go out of his way to admit that such documents exist.

If I had to guess, I’d say that Durham has finished his investigation of the earlier period–through June 30, 2003–so is now willing to produce at least a Vaughn Index of what documentation exists for the period (note, this should include the documents surrounding the Jane Harman briefing from February 5, 2003, including her letter telling the CIA not to destroy the tapes, and any paper response Scott Muller made internally at CIA). Read more →

Fox Reports Absence of Presidential Finding, Clear Violation of Law, Yawns

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Aw man. The corporate press keeps getting stupider and stupider in their desperation to claim Democrats didn’t do enough to prevent torture after being briefed on it more than six months after the torture started.

This time it’s Fox News, complaining that Jane Harman, in her letter to Scott Muller, raised policy concerns, not legal ones.

California Rep. Jane Harman wrote about policy concerns, not legal concerns, in the letter House Speaker Nancy Pelosi is citing in her claim that she let the top Intelligence Committee Democrat take the lead in addressing complaints to the CIA about "enhanced" interrogation techniques used on terror detainees.

In her Feb. 10, 2003, letter, Harman wrote to CIA General Counsel Scott Muller asking whether President Bush had authorized and approved the enhanced techniques, because of the impact such methods may have on policy.

Now there are two big problems with Fox’s latest pathetic attempt at a gotcha. First, it misquotes Pelosi in several significant ways.

At a press conference on Thursday, Pelosi told reporters that she supported the letter Harman drafted for Muller that raised concerns over the legality of the program.

Pelosi said her staffer told her in February 2003 that Harman and Goss "had been briefed about the use of certain techniques which had been the subject of earlier legal opinions. Following that briefing, a letter raising concerns was sent to CIA general counsel, Scott Muller, by the new Democratic ranking member of committee, the appropriate person to register a protest," Pelosi said

"But no letter or anything else is going to stop them from doing what they’re going to do," she added.

Pelosi added that those briefing her in September 2002 gave her inaccurate and incomplete information. Pelosi’s office issued a statement Thursday saying Pelosi had been told in September 2002 that waterboarding, or simulated drowning, had not been used, but was going to be used in the future.

Here are the complete quotes from Pelosi’s statement.

The CIA briefed me only once on some enhanced interrogation techniques, in September 2002, in my capacity as Ranking Member of the House Intelligence Committee.

I was informed then that Department of Justice opinions had concluded that the use of enhanced interrogation techniques was legal. The only mention of waterboarding at that briefing was that it was not being employed.

Read more →

“If You’re Trying to Commit a Crime,” You Wouldn’t Brief Democrats

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I’ve been meticulously tracking the erroneous claims made about whether or not Democrats got briefed on torture because:

  • The known briefing schedule makes it clear that CIA broke the law requiring them to inform Congress of their actions
  • Some of the arguments rely on either illiteracy or willful ignorance of the public record in their claims

But in today’s hearing Lindsey Graham makes clear why the Republicans are arguing this point so aggressively.

Now. I don’t know what Nancy Pelosi knew and when she knew it. And I really don’t think she’s a criminal if she was told about waterboarding and did nothing. But I think it is important to understand that members of Congress, allegedly, were briefed by … about these interrogation techniques. And again, it goes back to the idea of what was the Administration trying to do. If you’re trying to commit a crime, it seems to me that’d be the last thing you’d want to do. If you had in your mind and your heart that you’re going to disregard the law, and you’re going to come up with interrogation techniques that you know to be illegal, you would not go around telling people on the other side of the aisle about it. 

Ahem.

Yes.

That’s the point now, isn’t it?

Because no one in Congress was told that the CIA was going to start torturing in 2002, until it was too late. Pelosi and Goss were told, after CIA had waterboarded Abu Zubaydah 83 times, that CIA might waterboard in the future. Bob Graham was not told of waterboarding at all, according to him. Jello Jay was not at the briefing at which CIA told Pat Roberts "in considerable detail" about waterboarding. The CIA doesn’t even say Jane Harman was told about waterboarding specifically in February 2003 (though I assume she was). 

The first time CIA can say for certain that any Democratic members of Congress at all were briefed on waterboarding was in July 2004, after CIA had waterboarded for what ended up being the last time, and after their own Inspector General determined they were breaking the law.

And then, in 2005, when CIA was trying to sustain their ability to torture against Congressional wishes, CIA had briefings for Ted Stevens and Thad Cochran with no Democrats in attendance. They had a briefing for John McCain with no Democrats in attendance. Read more →

Memo to WaPo: Torture Is Not Just Waterboarding

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The WaPo has a weird article today–purporting to pinpoint how Nancy Pelosi first learned of waterboarding. It suggests that Michael Sheehy–a Pelosi staffer when she was briefed in September 2002, who then worked for Harman, and subsequently returned to work for Pelosi–told Pelosi about waterboarding after having been briefed on it February 5, 2003.

A top aide to  House Speaker Nancy Pelosi attended a CIA briefing in early 2003 in which it was made clear that waterboarding and other harsh techniques were being used in the interrogation of an alleged al-Qaeda operative, according to documents the CIA released to Congress on Thursday. 

[snip]

But Michael Sheehy, a top Pelosi aide, was present for a classified briefing that included  Rep. Jane Harman (D-Calif.), then the ranking minority member of the House intelligence committee, at which agency officials discussed the use of waterboarding on terrorism suspect Abu Zubaida. 

But the claim–that the documents the CIA released to Congress makes it clear that Sheehy was briefed on waterboarding in February 2003–is totally false. The briefing list, after all, does not specify that the briefing covered waterboarding at all. 

Discussion of detainee interrogation program/techniques.

Existence of AZ tapes briefed and that the tapes to be destroyed as soon as IG completed his report.

It was also discussed that interrogation methods were similar to those taught/used in SERE training.

So if the WaPo is sure the briefing covered waterboarding–as opposed to just torture generally–then it didn’t learn that from the CIA briefing list. To make the claim, the WaPo points to the details of the Roberts/Rockefeller briefing that Rockefeller didn’t attend (though the WaPo doesn’t tell its readers that Rockefeller didn’t attend), claiming with no proof that the briefings were the same.

Five months after the Pelosi-Goss meeting, in briefings for the new leaders of the Senate intelligence committee, the CIA "described in considerable detail . . . how the water board was used," according to the documents released Thursday.

Mind you, I’m not disputing that the Goss/Harman briefing covered waterboarding–I’ve always assumed it did until I saw this list. But the list does not specify that waterboarding was discussed, as it does elsewhere, and the Senate briefing is not dispositive of what went on in the House briefing, so this can’t be where the WaPo got this claim from.

Which is one reason I find it notable that the WaPo interviewed Jane Harman for this interview–and it suggests that Harman said she was told the torture videos depicted waterboarding.

Harman was surprised at what she learned, particularly that intelligence officials had video of the waterboarding of Abu Zubaida and were planning on destroying it.

Harman said in an interview that she "did not recall" discussing the issue with Pelosi.

Read more →

About Democratic Complicity: the Early Briefings on Torture

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Leen links to two articles suggesting the Democrats are reluctant to have a truth commission because of their own complicity in torture.

Now, I don’t mean to be an apologist for Democrats on torture–because I do believe the Constitutional Speech and Debate clause must take precedence over national security guidelines that limit briefings to the Gang of Four or Eight. But before we start attacking Democrats, let’s establish what we know about briefings that happened before the waterboarding of detainees. Between the public spat between Porter Goss and Nancy Pelosi, Jane Harman’s letter to Scott Muller, and the SSCI Narrative, we can establish that the only Democrat who was briefed in time to prevent waterboarding and told it had been and was going to be used–Jane Harman–wrote a letter raising concerns about the techniques.

Fall 2002: The CIA first briefed the Gang of Four (then comprising Richard Shelby, Porter Goss, Bob Graham, and Nancy Pelosi) after the waterboarding of Abu Zubaydah had already ended–and possibly after the waterboarding of al-Nashiri had, too. Furthermore, even Porter Goss appears to confirm Nancy Pelosi’s assertion that the CIA spoke of enhanced techniques (whether or not they mentioned waterboarding specifically) as a prospective activity. That is, in fall 2002, CIA did not reveal that it had already waterboarded Abu Zubaydah (and possibly al-Nashiri).

January/February 2003: Three of four leaders in the intelligence committees changed in 2003. Jello Jay replaced Graham (who was running for President), Pat Roberts replaced Shelby (who had been ousted for leaking classified information), and Jane Harman replaced Pelosi (who had become Minority Leader). The SSCI Narrative notes that Roberts–but not Jello Jay–got a briefing in "early 2003" (though Jello Jay’s staffer did attend).

After the change in leadership of the Committee in January of 2003, CIA records indicate that the new Chairman of the Committee was briefed on the CIA’s program in early 2003. Although the new Vice-Chairman did not attend that briefing, it was attended by both the staff director and minority staff director of the Committee.

In addition, Scott Muller refers to briefing Goss and Harman on February 5, 2003.

Thank you for your letter of 10 February following up on the briefing we gave you and Congressman Goss on 5 February concerning the Central Intelligence Agency’s limited use of the handful of specially approved interrogation techniques we described.

Muller’s reference to Goss and Harman–but not Roberts–suggests it’s possible that Roberts received a separate briefing, potentially with different content. Read more →

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 →

Porter Goss Escalates Attacks on Pelosi and Harman–But Admits CIA Broke the Law

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Porter Goss–who was DCI when the CIA destroyed videotapes depicting illegal torture and had been warned not to destroy the tapes, and who may have been the "senior CIA official" who allegedly lied to Congress about the torture CIA had done in February and June of 2005–just escalated the Republican attack on Nancy Pelosi and Jane Harman. In an op-ed in the WaPo, he describes the briefing Congress’ intelligence leaders received in fall 2002:

Let me be clear. It is my recollection that:

The chairs and the ranking minority members of the House and Senate intelligence committees, known as the Gang of Four, were briefed that the CIA was holding and interrogating high-value terrorists.

  • We understood what the CIA was doing.
  • We gave the CIA our bipartisan support.
  • We gave the CIA funding to carry out its activities.
  • On a bipartisan basis, we asked if the CIA needed more support from Congress to carry out its mission against al-Qaeda.

But look carefully at Goss’ language describing what they were briefed on.

In the fall of 2002, while I was chairman of the House intelligence committee, senior members of Congress were briefed on the CIA’s "High Value Terrorist Program," including the development of "enhanced interrogation techniques" and what those techniques were. 

[snip]

Today, I am slack-jawed to read that members claim to have not understood that the techniques on which they were briefed were to actually be employed; or that specific techniques such as "waterboarding" were never mentioned.

Goss explains that the Gang of Four was briefed on "the development" of the torture program and "what those techniques were." He implies strongly–but does not say it directly–that "waterboarding" was mentioned specifically. And he complains that the attendees should have understood that "the techniques on which they were briefed were to actually be employed."

Note what Pelosi has said:

"In that or any other briefing…we were not, and I repeat, were not told that waterboarding or any of these other enhanced interrogation techniques were used," said Pelosi. "What they did tell us is that they had some legislative counsel…opinions that they could be used, but not that they would."

Read more →